author: PHILLIPS, Chief Judge. O’SULLIVAN, Senior Circuit Judge

text:
    LOCAL NO. 6, BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA et al., Plaintiffs-Appellants, v. BOYD G. HEMINGER, INC., and Frank Fulton, Inc., Defendants-Appellees.
    No. 72-2199.
    United States Court of Appeals, Sixth Circuit.
    Argued April 9, 1973.
    Decided Aug. 9, 1973.

      James O. Cross, Akron, Ohio, for plaintiffs-appellants.
    Charles A. Morgan, Jr., of Amerman, Burt & Jones Co., Canton, Ohio, for defendants-appellees.
    Before PHILLIPS, Chief Judge, LIVELY, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge.
   PHILLIPS, Chief Judge.

This is a suit to compel arbitration. The District Court refused to order arbitration, rendering judgment in favor of the appellee employer, Boyd G. Hem-inger, Inc. The three labor unions appeal. Although Frank Fulton, Inc. also was a party to this litigation in the District Court, the unions, in this appeal, seek only a remand for direction of arbitration with Heminger. Jurisdiction is founded on § 301 of the Labor Management Relations Act, as amended. 29 U. S.C. § 185. We reverse and remand.

Each of the three unions is party to individual collective bargaining agreements with the Heminger corporation, which is in the construction industry. The bricklayers’ agreement requires that seventy per cent of all the employer’s bricklayers must be union members, if they are available and competent. The carpenters’ agreement requires that all unemployed carpenters in a four-county area in and around Canton, Ohio, be hired before any outside help is employed. The Ironworkers’ agreement provides that other than a minimum of key employees, all of Heminger’s iron-workers shall be furnished by the union.

The unions allege that Heminger violated each of these union security provisions by creating a sham corporation (appellee Frank Fulton, Inc.) to operate with non-union employees in the geographical areas covered by the agreements. A demand for arbitration for breach of the above provisions was made by each union on June 14, 1972. This suit was instituted after Heminger refused to arbitrate.

The bricklayers’ arbitration agreement provides that the arbitration procedure will be used to settle “any disputes occurring during life of this Agreement in a peaceful manner .” The carpenters’ arbitration agreement provides for arbitration “(i)n the event any . . . difference of opinion or dispute occurs, whether they concern the interpretation of the . . . Agreement or otherwise The Ironworkers’ arbitration agreement provides “(t)he Board of Arbitration shall have jurisdiction over all questions involving the interpretation and application of any section of this Agreement.”

The District Court, in its opinion, detailed the unions’ allegations concerning the creation of the sham corporation and examined the evidence on the merits of the claim. The court concluded “this court can go no further than to determine whether or not plaintiffs have made out a prima facie case based on the alter ego or single employer theory.” It refused to send the matter to arbitration because “the evidence and testimony indicate a lack of sufficient common factors to illustrate a single employer or alter ego theory.”

Any inquiry into the applicable law in this area must begin with the Steelworkers’ Trilogy. United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). The teaching of the Trilogy is that arbitration is preferred in the field of labor disputes. “An order to arbitrate . . . should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” Warrior & Gulf, supra, 363 U.S. at 582-583, 80 S.Ct. at 1353. Cf. International Union of Operating Engineers, Local 150, AFL-CIO v. Flair Builders, Inc., 406 U.S. 487, 92 S.Ct. 1710, 32 L.Ed.2d 248 (1972). The role of the court in these cases “is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract.” American Mfg., supra, 363 U.S. at 568, 80 S.Ct. at 1346 (emphasis added). See Amalgamated Clothing Workers of America, AFL-CIO v. Ironall Factories Co., Inc., 386 F.2d 586, 591 (6th Cir. 1967). The Fifth Circuit has termed the standard to be applied the “arguably arbitrable” test. International Union of Operating Engineers Local 279 v. Sid Richardson Carbon Co., 471 F.2d 1175 (5th Cir. 1973); Jacksonville Newspaper Printing Pressmen & Assistants’ Union No. 57 v. Florida Publishing Co., 468 F.2d 824 (5th Cir. 1972), cert. denied, 411 U.S. 906, 93 S.Ct. 1531, 36 L.Ed.2d 196 (1973).

We hold that the District Court misconstrued its mandate. The duty of the courts is not to determine whether a prima facie case on the merits has been put forth by the party seeking arbitration. It is not the province of the court to look into the facts of the case. Chambers v. Beaunit Corp., 404 F.2d 128, 130 (6th Cir. 1968); American Radiator & Standard Sanitary Corp. v. Local 7, International Brotherhood of Operative Potters, 358 F.2d 455, 458 (6th Cir. 1966). The arbitrator is not to be viewed as a special master who will be called in after a prima facie case on the merits has been made out.

In the context of this ease, the burden of the unions was not to present a prima facie case on the creation of a sham or alter ego corporation by the employer. The burden was to show that, assuming there was a sham or alter ego corporation created by the Heminger Corp., there would then be a violation of the collective bargaining agreements. We have no doubt that such an asserted violation would be within the scope of the three arbitration agreements in question. In signing these arbitration agreements, the parties agreed to “submit all grievances to arbitration, not merely those that a court may deem to be meritorious.” American Mfg., supra, 363 U.S. at 567, 80 S.Ct. at 1346.

Heminger has promised to arbitrate grievances concerning the application and interpretation of the collective bargaining agreement. This employer must be held to its promise.

We find inapposite two N.L.R.B. decisions relied on heavily by Heminger: Carpenters District Council of Houston & Vicinity et al. and Baxter Construction Co., Inc., 201 N.L.R.B. No. 16 (1973); and Gerace Construction, Inc. et al. v. United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 1654 et al., 193 N.L.R.B. No. 91 (1971). Both of these unfair labor practice proceedings were concerned with the presence or absence of a single employer. There was no issue of arbi-trability in either of those cases. We emphasize that this court is not faced with the question of whether there was a single employer. We simply decide the arbitrability of that claim.

Reversed and remanded with directions to the District Court to order arbitration between the unions and Boyd G. Heminger, Inc.

O’SULLIVAN, Senior Circuit Judge

(dissenting).

I respectfully dissent. Whether a company may be ordered to submit any issue to arbitration depends upon whether it has contracted to do so. Resolution of such question “is a matter to be determined by the Court on the basis of the contract entered into by the parties.” Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 1320, 8 L.Ed.2d 462 (1962). To hold that Fulton, Inc., is a party to a contract calling for arbitration requires, in the context of this case, a finding that it (Fulton, Inc.) is but an alter ego of Heminger, Inc., subject to whatever contracts Hem-inger, Inc., had made with appellant unions. Assertion that such was true and that defendants Heminger, Inc., and Fulton, Inc., together, constituted but a single employer, were the sole allegations of appellants’ complaint whereby to invoke the jurisdiction of the District Court. The truth of such claims was put in issue by the answers of the defendants. It is my view that such issue presented a threshold question for resolution by the Listrict Judge. He resolved it against plaintiffs-appellants. I would affirm.

The evidence before the District Judge showed that Boyd G. Heminger was the sole owner of defendant Boyd G. Heminger, Inc., a large commercial construction company doing business in the area of Canton, Ohio. He saw an opportunity to engage in the construction of residential housing, which work was then being done primarily by contractors who were not restricted by “closed shop” agreements with the plaintiff unions. His testimony was undisputed that no one could successfully compete in this activity and comply with the restrictive employment policies imposed by the building trades unions. The plaintiffs’ brief to us asserts:

“Frank Fulton, Inc., was created by Boyd G. Heminger to get into the housing construction market without the restrictions and burdens of Boyd G. Heminger, Inc.’s collective bargaining agreement with the plaintiff unions.”

Appellants’ argument is that what Heminger sought to do was forbidden by the “closed shop” contract. I disagree. I am not persuaded that the owners and employees of a corporate enterprise having such a “closed shop” contract are thereby denied the right to establish a separate and distinct legal entity by which to carry on a legitimate business.

Plaintiffs’ complaint asked that the right of the separately formed corporation — Frank Fulton, Inc. — to carry on business free of the restraints imposed by the contract between Heminger, Inc., and the plaintiff unions, be submitted to arbitration; and that pending such arbitration, Frank Fulton, Inc., be restrained from carrying on work in which it was then engaged. The case came on for hearing upon plaintiffs’ application for a preliminary and permanent injunction. District Judge Leroy J. Contie, Jr., of the United States District Court for the Northern District of Ohio, Eastern Division, elected as authorized by Rule 65(a)(2), to proceed with trial on the merits. He heard the testimony offered by the contesting parties to sustain their respective positions. He concluded:

“This court cannot find sufficient evidence to send this matter to Arbitration, as the evidence and testimony indicate a lack of sufficient common factors to illustrate a single employer or alter ego theory. Therefore, this court finds for the defendants and against the plaintiffs.”

While I believe that there is nothing in the law forbidding Boyd Heminger to enter upon a new and separate enterprise, such view is not essential to my conclusion. It is true that the creation of Frank Fulton, Inc., was initially the product of Heminger’s desire to get into the residential construction market. However, the proofs taken before the District Judge showed, without dispute, that he did not realize this goal. He was instrumental in organizing Merit Shop, Inc., which, by change of name, became Frank Fulton, Inc. He and his wife were initially named as officers and directors of Merit Shop, Inc., but both had resigned from such positions prior to this litigation and before any operations were conducted by Frank Fulton, Inc. At the beginning, no stock was issued by Merit Shop, Inc., but Heminger did loan this skeletal corporation $5,000. This had been repaid to him before this litigation commenced. Heminger never acquired any shares of the stock ultimately issued by the new corporation. One Thomas McMahon, an employee of Heminger, Inc., subscribed and paid for the only shares issued by Frank Fulton, Inc. Shortly thereafter he resigned from his employment with the Heminger Corporation. It was undisputed that Heminger at no time had any ownership interest in the new corporation; likewise, it was undisputed that he took no part in its management or its labor relations. Frank Fulton, Inc., rented space in the office building maintained by Heminger, Inc., as well as some of Heminger’s equipment. One or more supervisory employees of Hemin-ger, Inc., did work for Fulton, Inc., at various job sites, but they did so without impairment of their duties to Hem-inger, Inc., and the latter billed Fulton for the services so rendered. At the time of the District Court hearing, Fulton, Inc., had some six employees; whereas, Heminger, Inc., had a payroll of 77 employees. Notwithstanding its thin capitalization, Fulton, Inc.’s initial contracts were on a cost plus basis and it was able to meet its payroll from progress payments received from the owners.

The relevant collective bargaining agreement requires that Heminger, Inc., hire only members of plaintiff unions if they were available, but no member of the plaintiff unions ever sought a job with Fulton, Inc. Fulton, Inc., did obtain one contract for the construction of a so-called Republic Steel building; Heminger, Inc., had an exclusive franchise to market such buildings in the Canton area; this construction job was subcontracted to Heminger, Inc. In proceeding, as a subcontractor, with the erection of such building, Heminger, Inc., was required to and did observe its contract with plaintiff unions. The record is void of any evidence that Heminger, Inc., lost any business to Fulton, Inc.; the jobs of none of the employees of Heminger, Inc., were lost or impaired by the formation and activities of Fulton, Inc.

My brothers believe that the question of whether Fulton, Inc., is the alter ego of Heminger, Inc., should be decided by arbitration. They emphasize the trilogy —United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed. 2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960)— the teaching of which “is that arbitration is preferred in the field of labor disputes.” They then go on to say:

“The role of the court in these cases ‘is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract.’ American Mfg., supra, 363 U.S. 568 [80 S.Ct. 1343].”

Respectfully, I urge that this sentence should be read in context with the one preceding it, found on page 567, 80 S.Ct. 1343,1346 of the same decision:

“The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator.” 363 U.S. at 567-568, 80 S.Ct. at 1346 (Emphasis supplied).

Thus, whether the parties “have agreed to submit all questions of contract interpretation to the arbitrator” is a threshold question for the Court to decide. In Atkinson v. Sinclair Refining Co., supra, 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962), the Supreme Court said:

“Under our decisions, whether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties. ‘The Congress . . . has by § 301 of the Labor Management Relations Act, assigned the courts the duty of determining whether the reluctant party has breached his promise to arbitrate. For arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’ ” 370 U.S. at 241, 82 S.Ct. at 1320 (Emphasis supplied).

Thus, the only way that Fulton, Inc., could be made a party to a contract requiring arbitration was by a finding that it was but the alter ego of Heminger, Inc. This was a threshold question which was a “matter to be determined by the Court” under Atkinson, supra. I do not agree with my brothers’ observation that the courts have no duty to determine “whether a prima facie case on the merits has been put forth by the party seeking arbitration.” If such were the law, then a District Court would indeed have no function in such a case as this. Plaintiffs-Appellants’ complaint — as the sole basis for invoking District Court jurisdiction — charged that “defendant formed a sham-alter ego corporation, Frank Fulton, Inc.” I cannot agree that plaintiffs had no duty to sustain this allegation, even by a prima facie showing. Here the District Judge resolved that the basic allegation of the complaint was not made out, even by a prima facie showing.

In Radio Union v. Broadcast Service, 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965), the Supreme Court set out the criteria whereby to determine whether one enterprise is but the alter ego of another, thus to create one integrated enterprise. The Court said:

“The controlling criteria, set out and elaborated in Board decisions, are interrelation of operations, common management, centralized control of labor relations and common ownership.” 380 U.S. at 256, 85 S.Ct. at 877 (Citing numerous Board decisions).

These criteria are missing in the case at bar. In Gerace Construction, Inc., 193 NLRB 645 (1971), the Board was dealing with the criteria needed to establish one enterprise as the alter ego of the other, thus to require both to conform to the same bargaining contract. In holding that the facts there involved did not justify a holding of an alter ego relationship, the Board said:

“The record shows that Helger Construction is a separate legal entity with separate bank and payroll accounts. While Gerace Construction and Helger share a common bookkeeper, she keeps separate corporate records, and the two companies file separate tax returns. Francis Gerace initially controlled a majority of Hel-ger’s stock, and he and Wardin, who is an official of Gerace Construction, constituted two of Helger’s three directors. However, in late November 1970, Francis Gerace resigned as a director of Helger and transferred his shares of stock to Lawrence E. Sweebe, who has been Helger’s principal managerial official since its inception.”
-X- -X- * * * -X-
“There is no showing that Gerace Construction has lost business to Hel-ger or that any Gerace employee has lost work he otherwise would have had. Helger’s contracts amount to less than $50,000 while Gerace’s are seldom less than $250,000. Unlike Gerace, Helger operates an open shop without regard to craft lines and pays employees less than Gerace’s contract rates.”
* * -X- -X- -X- -X-
“Gerace has an average employee complement of 95; Helger has only 16. While some Helger employees previously worked for Gerace on occasion, there is no interchange of employees. It is undisputed that Helger uses Francis Gerace’s trailer for its temporary office and some tools and equipment of Gerace Construction. However, Helger pays rent for them. Moreover, the renting of tools and equipment appears to be common practice in the construction industry.
“We find the above facts show that Francis Gerace was the prime mover in organizing Helger Construction and that he and Wardin had potential control over its operations, but such control was gradually relinquished to Sweebe who in fact had actual control over Helger’s operations and employees. In these circumstances and upon the entire record, as outlined above, we find that Gerace Construction and Helger Construction constitute separate employers under the Act and that the employees of each constitute separate bargaining units. Accordingly, we find that the Respondents had no obligation to recognize the Charging Parties as bargaining representatives of Helger’s employees or extend the terms of the existing agreements to such employees. We shall therefore order that the complaint be dismissed.” 193 NLRB at 645-46.

Substantially to the same effect is Carpenters District Council, et al. and Baxter Construction Company, Inc., 201 NLRB No. 16 (1973). The arbitration agreements here involved have to do with settlement of grievances and resolution of disagreements arising out of the contracts between the unions and the members of the Contractors Association [The Labor Relations Division, Building Section, of the Ohio Contractors Association, The General Contractors of America, Inc.]. Fulton, Inc., is a stranger to such Contractors Association and to the arbitration provisions contained in its contracts; but the relief here sought is to subject Fulton, Inc., to an arbitration clause to which it is not a party, and thus to have an arbitrator determine how it should conduct its future labor relations. Neither the majority opinion nor the plaintiff unions’ address to us cite any authority to support such a rule. The fact that arbitration is asked does not, in my view, make Gerace Construction, Inc., supra, 193 NLRB 645, and Carpenters District Council, supra, 201 NLRB No. 16, without controlling analogy here. The District Judge correctly defined and discharged his function after hearing the relevant proofs:

“In other words, this court can go no further than to determine whether or not plaintiffs have made out a prima facie case based on the alter ego or single employer theory. It is the opinion of this court that plaintiffs have failed to do so, and that, therefore, judgment should be rendered for the defendants.
“This court heard evidence and took testimony on issues relating to the common ownership and the integrated relationship between the companies of Boyd Heminger, Inc. and Frank Fulton, Inc. The court is of the opinion that said evidence and testimony will not support a finding that the two defendants can be considered to be a single employer.”

Whether the proofs made out even a prima facie case of alter ego or single employer theory, thus to make Fulton, Inc., a party to a contract containing an arbitration clause, was for resolution by the District Judge. I consider that his finding in this regard was correct.

I would affirm.

      . This set of facts is identical to those found in Gerace Construction, Inc., 193 NLRB 645 (1971), wherein the Board found that “Gerace was the prime mover in organizing Helger Construction and that he and TVardin had potential control over its operations, but such control was gradually relinquished to Sweebe who in fact had actual control over Helger’s operations and employees. In these circumstances and upon the entire record, as outlined above, we find that Gerace Construction and Helger Construction constitute separate employers under the Act and that the employees of each constitute separate bargaining units.”

      . In each of the cases making up the “trilogy” the contest sought to be referred to arbitration had to do with the resolution of grievances filed by employees against their employers who had made bargaining contracts with a union of which the aggrieved employees were members. The contracts called for submission of any unresolved grievances to arbitration. Here, no employee of Heminger, Inc., has filed a grievance; no employee of Fulton, Inc., asserts an unsettled grievance ; no employee of Fulton, Inc., seeks to have it enter into a bargaining agreement with any of plaintiff unions. These unions are in no way inhibited from seeking to organize Fulton’s employees, using the mechanisms which they know how to handle.


source: Caselaw Access Project

author:
CRAVEN, Circuit Judge:
      BOREMAN, Senior Circuit Judge

license: Public Domain

text:
    Dewey HART, Appellant, v. Ira M. COINER, Warden of the West Virginia State Penitentiary, Appellee.
    No. 71-1885.
    United States Court of Appeals, Fourth Circuit.
    Argued April 2, 1973.
    Decided July 13, 1973.

      Richard Vanore and Robert Wishart, Third Year students (Barry Nakell, Chapel Hill, N. C. [Court-appointed counsel] on brief), for appellant.
    Richard E. Hardison, Asst. Atty. Gen., of W. Va. (Chauncey H. Browning, Jr., Atty. Gen., of W. Va., and E. Leslie

      Hoffman, III, Asst. Atty. Gen., of W. Va., on brief), for appellee.
    Before BOREMAN, Senior Circuit Judge, and CRAVEN and BUTZNER, Circuit Judges.
   CRAVEN, Circuit Judge:

Appellant Dewey Hart is presently confined in the West Virginia State Penitentiary under judgment and sentence that he there be imprisoned for the rest of his natural life for having violated West Virginia’s recidivist statute. The life sentence, mandatory under West Virginia law, rests upon three prior convictions: (1) writing a check on insufficient funds for $50; (2) transporting across state lines forged checks in the amount of $140; and (3) perjury. Having unavailingly sought relief in the state courts, Hart thereupon prosecuted his petition for writ of habeas corpus in the United States District Court. He appeals the refusal of the district judge to grant relief. We reverse and remand with instructions. Our decision rests upon the conclusion that the West Virginia recidivist statute’s mandatory life sentence is so disproportionate to the seriousness of the underlying offenses, and so grossly excessive that it amounts to cruel and unusual punishment forbidden by the eighth amendment.

In 1968 Hart was convicted of perjury in a West Virginia court as a result of testimony he gave at the murder trial of his son. Perjury carries a sentence in West Virginia of not less than one nor more than ten years. W.Va.Code § 61-5-3 (1966). Prior to sentencing on the perjury conviction, however, the state filed an information charging Hart with being an habitual offender. West Virginia’s recidivist statute requires a life sentence for anyone who has been convicted three separate times' of offenses “punishable by confinement in a penitentiary.” W.Va.Code § 61-11-18 (1966).

The recidivist charge against Hart was based upon the perjury conviction and two prior convictions — one in 1949 for writing a check on insufficient fúnds for $50, and one in 1955 for interstate transportation of forged checks worth $140. Hart presented no evidence to contradict the recidivist information, and, pursuant to a jury finding that he had been convicted of three offenses punishable by imprisonment in a penitentiary, the court imposed the mandatory sentence of life imprisonment.

I.

Initially we note that we are presented with a conviction and sentence obtained pursuant to a state statutory scheme which is valid on its face. Indeed, the Supreme Court has upheld this West Virginia habitual offender statute against due process and equal protection claims. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912). But we do not agree with the state’s contention that these decisions foreclose Hart’s present eighth amendment challenge. Hart does not attack the statute itself. He does not urge that life imprisonment per se is either cruel or unusual. Nor does he urge that the statutory scheme has been discriminatorily applied. The issue he does raise is whether the recidivist mandatory life sentence in this case is so excessive and disproportionate to the underlying offenses as to constitute cruel and unusual punishment. We are not precluded from deciding this issue, we think, by the fact that the West Virginia recidivist scheme is constitutional as written, for a concededly valid statute may be applied in a particular case in such a way as to violate various constitutional provisions. Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) (speech and assembly) ; Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (equal protection). See Brown v. Louisiana, 383 U.S. 131, 142, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (speech and assembly).

“That the punishment is not severe, ‘in the abstract,’ is irrelevant; ‘[e]ven one day in prison would be a cruel and unusual punishment for the ‘‘crime” of having a common cold.’ ” Furman v. Georgia, 408 U.S. 238, 273, 92 S.Ct. 2726, 2744, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring).

We think it clear that to view the West Virginia recidivist statute with its mandatory life sentence as facially constitutional is not the end of the inquiry.

II.

The doctrine that an excessive sentence may be invalid solely because of disproportionality is not a new one. Mr. Justice Field suggested in 1892 that the eighth amendment’s prohibition is directed not only against torture or barbarism, “but [also] against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged.” O’Neil v. Vermont, 144 U.S. 323, 339, 12 S.Ct. 693, 699, 36 L.Ed. 450 (1892) (Field, J., dissenting).

In Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 549, 54 L.Ed. 793 (1910), the Court adopted Mr. Justice Field’s view of the eighth amendment when it stated that it is now “a precept of justice that punishment for crime should be graduated and proportioned to offense.” In Weems, the Court noticed, with apparent approval, that the highest state court of Massachusetts had previously conceded the possibility that “punishment in the state prison for a long term of years might be so disproportionate to the offense as to constitute a cruel and unusual punishment.” Weems, supra, at 368, 30 S.Ct. at 549; accord, Ralph v. Warden, 438 F.2d 786 (4th Cir. 1970).

In his concurring opinion in Furman, Mr. Justice Douglas finds the idea of disproportionality as old as the Magna Carta: “A free man shall not be amerced for a trivial offence, except in accordance with the degree of the of-fence ; and for a serious offence he shall be amerced according to its gravity . . . .” Furman, supra, 408 U.S. at 243, 92 S.Ct. at 2729.

While it seems settled that punishment must be proportioned to the offense committed, application of this principle to a particular fact situation is not without difficulty. That the proportionality concept is not static, but is a “progressive” one which “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” enhances the difficulty. Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958).

Although the standard applicable under the eighth amendment is one “not susceptible to precise definition,” there are several objective factors which are useful in determining whether the sentence in this case is constitutionally disproportionate. The test to be used is a cumulative one focusing on an analysis of the combined factors. Furman, supra, 408 U.S. at 282, 92 S.Ct. 2726 (Brennan, J., concurring).

The initial element to be analyzed in determining whether the punishment is constitutionally disproportionate is the nature of the offense itself. Furman, supra, at 325, 92 S.Ct. 2726 (Marshall, J., concurring). Hart’s first conviction was for writing a bad check in 1949, and the second was for transporting forged checks six years later. His third conviction was more serious — committing perjury during the murder trial of his son. But even there Hart faced a moral dilemma: to choose between his duty to tell the truth and family loyalty.

In assessing the nature and gravity of an offense, courts have repeatedly emphasized the element of violence and danger to the person. E. g., Snider v. Peyton, 356 F.2d 626, 627 (4th Cir. 1966); see Rudolph v. Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119 (1963) (Goldberg, J., dissenting from a denial of certiorari). In Ralph v. Warden, supra, 438 F.2d at 788, Judge Butz-ner stated that “there are rational gradations of culpability that can be made on the basis of injury to the victim.” None of Hart’s offenses were against the person. None involved violence or danger of violence toward persons or property. The bad check case was very nearly trivial — one penny less in the face amount of the check and the offense would have been a five-to-sixty-day petty misdemeanor.

Another factor to be examined is the legislative purpose behind the punishment. Furman, supra, 408 U.S. at 280, 300, 92 S.Ct. 2726 (Brennan, J., concurring). The state argues that a punishment' may not be cruel and unusual if it serves a valid purpose, and that the life sentence here serves such a legislative purpose — to deter other persons from future violations and to protect society from habitual criminals.

Such an argument proves too much. Assuming the validity of the deterrent theory, and there is room for doubt, then if a life sentence is good for the purpose, surely a death sentence would be better. Putting Hart in prison for the remainder of his life for three offenses that rank relatively low in the hierarchy of crimes would presumably prevent him from passing bad checks but would not likely make of him a truthful man. Is it a rational exercise of state police power to put a man away for life —at tremendous expense to the state— because over a 20-year period he passed or transported three bad checks and might do it again? Life imprisonment is the penultimate punishment. Tradition, custom, and common sense reserve it for those violent persons who are dangerous to others. It is not a practical solution to petty crime in America. Aside from the proportionality principle, there aren’t enough prisons in America to hold all the Harts that afflict us.

Mr. Justice Brennan has observed: “If there is a significantly less severe punishment to achieve the purposes for which the punishment is inflicted, the punishment inflicted is unnecessary and therefore excessive.” [Citations omitted]. Furman, supra, at 279, 92 S.Ct. at 2747. We think that a sentence of life imprisonment, the most severe punishment available under West Virginia law, is unnecessary to accomplish the legislative purpose to protect society from an individual who has committed three wholly nonviolent crimes over a period of twenty years. Nor, except on the theory that more is better, is it necessary to deter others. Ten years’ possible imprisonment for perjury is calculated to make one stop and think — whether or not it does.

A third objective factor is comparison of Hart’s punishment with how he would have been punished in other jurisdictions. Three states — Indiana, Kentucky, and Texas — provide life imprisonment as the mandatory sentence to be imposed upon the conviction of any three felonies. While Tennessee also provides for a mandatory sentence upon the third offense, two of the offenses must be specified violent felonies. Thus, West Virginia’s recidivist scheme is among the top four in the nation in terms of severity, and may be number one. Ten states make a discretionary life sentence available after three felony convictions. These provisions, however, provide for judicial consideration of the nature of the underlying offenses prior to imposition of the sentence, an ameliorating factor not allowed in West Virginia.

If we assume these other states treat a $50 bad check case as a felony, which is doubtful, it is theoretically possible that Hart could have been exposed to the imposition of a life sentence in 13 states besides West Virginia. But as a practical matter, we think it would certainly not occur in those ten states providing for judicial evaluation of the underlying offenses and the offender. Had the sentencing judge here been able to exercise discretion, it is hard to believe that he would have given Hart as much time to serve as he might give one convicted of three offenses of second-degrée murder. Yet, Hart got the maximum without regard to the relatively petty nature of the underlying convictions.

A comparison of punishment available in the same jurisdiction for other offenses is likewise a factor. Weems, supra, 217 U.S. at 381, 30 S.Ct. 544, 54 L.Ed. 793. West Virginia provides for a mandatory life sentence for only three other crimes — first-degree murder, W.Va.Code § 61-2-2 (1966); rape, W.Va.Code § 61-2-15 (1966); and kidnapping, W.Va.Code § 61-2-14a (1966). Can it be rationally urged that Hart is as dangerous to society and as deserving of punishment as the murderer, rapist, and kidnapper ?

Consideration of the penalties provided for grave crimes of violence in West Virginia reveals the irrationally disparate treatment visited upon Hart: second-degree murder, 5-18 years, W. Va.Code § 61-2-3 (1966); robbery, not less than 10 years, W.Va.Code § 61-2-12 (1966); malicious assault with intent to kill, 2-10 years, W.Va.Code 61-2-9 (1966); administering poison with intent to kill, 3-18 years, W.Va.Code § 61-2-7 (1966); first-degree arson, 2-20 years, W.Va.Code § 61-3-1 (1966); and extortion by threats of violence, and manslaughter, 1-5 years, W.Va.Code §§ 61-2-4, 61-2-13 (1966).

The repetitive commission of all of these offenses, of course, could result in punishment under the recidivist, scheme. Yet, after a second commission of these extremely violent and dangerous crimes, only five years could be added to the maximum sentence, W.Va.Code § 61-11-18 (1966). Only for the third offense could such an offender be sentenced as harshly as was Hart.

After analyzing what we believe to be the relevant criteria under the eighth amendment, we conclude that the sentence imposed upon Hart is constitutionally excessive and wholly disproportionate to the nature of the offenses he committed, and not necessary to achieve any legitimate legislative purpose.

We therefore reverse and remand with instructions that the writ of habeas corpus issue unless within a reasonable time the state chooses to resentence Hart solely on the basis of his perjury conviction.

Reversed and remanded with instructions.

APPENDIX

HABITUAL OFFENDER PROVISIONS IF MOST RECENT CONVICTION IS PERJURY

State Citations Minimum Number of Offenses Maximum Sentence

Alabama No habitual offender statute

Alaska § 12.55.050 2d felony 3d felony 4th felony Double Maximum 4 times Maximum Life, discretionary

Arizona § 13-1649 2d prison offense Not less than 10 years

Arkansas § 43-2328 2d prison offense 3d prison offense 4th prison offense Maximum Maximum 1.5 times Maximum

California P.C., § 644 Does not apply if perjury Is the most recent offense, though perjury can be a prior

Colorado' § 39-13-1 3d felony 4th felony Triple maximum Life, mandatory

Connecticut § 53a-40 2d felony 10 years

Delaware tit. 11, § 3911(a) 4th felony Life, discretionary

Florida § 775.084 2d felony (w/15 years) 30 years

Georgia § 27-2511 2d prison offense 4th felony Mandatory maximum Mandatory maximum without parole

Hawaii No habitual offender statute

Idaho § 19-2514 3d felony 5 years to Life

Illinois No habitual offender statute

Indiana 3d felony § 9-2207 Mandatory life

Iowa 3d jail term of at least 3 years § 747.5 25 years

Kansas 2d felony 3d felony § 21-4504 Double maximum Life, discretionary

Kentucky § 431.190 2d felony 3d felony Not less than double 1st sentence Life, mandatory

Louisiana § 15-529.1 2d and 3d felonies 4th felony Double maximum Life, discretionary

Maine § 15-1742 2d prison offense Life, discretionary

Maryland No habitual offender statute

Massachusetts § 279-25 3d jail term of at least 3 years Maximum, mandatory

Michigan § 28.1084 4th felony Life, discretionary

Minnesota § 609.155 2d felony Maximum times number of priors, up to 40 years

APPENDIX' — Continued

HABITUAL OFFENDER PROVISIONS IF MOST RECENT CONVICTION IS PERJURY — Continued

State Citations Minimum Number of Offenses Maximum Sentence

Mississippi No habitual offender statute

Missouri § 556.280 2d prison offense Maximum, discretionary

Montana § 94-4713 2d prison offense Not less than 10 years

Nebraska § 29-2221 3d offense for which prison time served 20 years

Nevada § 207.010 3d felony 4th felony 20 years Life, mandatory

New Hampshire § 591:1 § 651:6 3d felony 3d offense served in prison 15 years 30 years

New Jersey § 2A:85-12 4th high misdemeanor Life, discretionary

New Mexico § 40A-29-5 2d felony 3d felony 4th felony Double maximum Triple maximum Life, mandatory

New York P.C. § 70.10 3d felony Life, discretionary

North Carolina §§ 14-7.1-14-7.6 4th felony Life, discretionary

North Dakota §§ 12-06-18-12-06-21 2d felony 3d felony 4th felony 10 years Double maximum Life, discretionary

Ohio § 2961.11 3d listed offense, including perjury and forgery Mandatory maximum

§ 2961.12 4th such offense Life, mandatory

Oklahoma tit. 21, § 51 2d prison offense Minimum 10 years

Oregon Unavailable

Pennsylvania tit. 18, § 5108 2d and 3d listed offenses, (including perjury) within 5 years 4th offense Double maximum Life, discretionary

Rhode Island § 12-19-21 3d prison offense Additional 25 years

South Dakota § 22-7-1 2d felony 4th felony Double penalty Life, discretionary

Tennessee § 40-2801 3d felony (two must be listed violent felonies) Life, mandatory

Texas P.C. Art. 62 P.C. Art. 63 2d felony 3d felony Maximum Life, mandatory

Utah 76-1-18 3d felony Not less than 15 years

Vermont 13, §§ 11 and 1 4th felony Life, discretionary

Virginia 53-296 2d prison offense Life, discretionary

Washington 9.92.020 2d felony 3d felony Life, discretionary Life, mandatory

Wisconsin 939.62 2d felony within 5 years Additional 6 years

Wyoming 6-9 3d felony 4th felony 50 years Life, Mandatory

BOREMAN, Senior Circuit Judge

(dissenting):

One of the prior convictions on which Hart’s habitual offender sentence was based was a conviction on December 28, 1949, for issuing a check against insufficient funds. He was convicted upon his plea of guilty. I conclude that Hart did not have the effective assistance of counsel in connection with the entry of his guilty plea, that his 1949 conviction was invalid and that it should have been rejected as a “conviction” at his trial as a recidivist. I therefore conclude that the district court erred in denying ha-beas relief and on that ground alone I would reach the end result of reversal. I believe, however, that the course my brothers have chosen to follow, in basing their decision on the cruel and unusual punishment provisions of the Eighth Amendment, is not only unnecessary but also unsupportable, and I do not hesitate to indicate my disagreement therewith.

THE 1949 CONVICTION

Hart was represented in 1949 by inexperienced counsel who was appointed for him and who had been admitted to practice in March 1949. The first time Hart met his court-appointed attorney was in the courtroom on the day he entered his guilty plea. Counsel testified at the evi-dentiary hearing below as a witness for the State but he did not even faintly recall having represented Hart in 1949.

Hart testified that after the appointment of counsel he and the attorney withdrew to discuss the pending charge. The attorney told him that if he did not plead guilty the prosecuting attorney would proceed against him as a second offender and thereby add five years to his sentence, but that if he did plead guilty the prosecutor would disregard any prior felony conviction. He informed Hart that he did not have to plead guilty and could have a jury trial. Counsel asked Hart if he was guilty of the charge and Hart “told him that I was guilty for they had my name on the check.” Hart further testified in response to a query about whether he and his attorney had discussed the facts surrounding the charge against him: “He told me they had the check-against me with my name on it. And that, ., the Prosecutor, was going to ask for the five years former conviction. That if I would plead guilty then I would just get the one to five years.” Hart stated that he and his attorney discussed nothing further with regard to the charge against him.

It is settled law in this circuit that late appointment of counsel is so inherently prejudicial as to constitute a prima facie case of denial of effective assistance of counsel. Stokes v. Peyton, 437 F.2d 131 (4 Cir. 1970); Fields v. Pey-ton, 375 F.2d 624 (4 Cir. 1967); Twi-ford v. Peyton, 372 F.2d 670 (4 Cir. 1967); Martin v. Virginia, 365 F.2d 549 (4 Cir. 1966); Jones v. Cunningham, 313 F.2d 347 (4 Cir. 1963). The burden is upon the State to introduce satisfaeto-ry evidence to overcome the presumption of prejudice arising therefrom. In holding that the State met this burden in this case the majority states that Hart “testified that he admitted his guilt to his attorney, who in turn advised him that he ‘didn’t have to plead guilty and could have a jury trial.’ ” (n. 2 Majority Opinion). The majority then approves and applies to the facts herein the statement from Turner v. Maryland, 318 F.2d 852, 854 (4 Cir. 1963), that the evidence “demonstrated beyond doubt that the accused in fact had no information to communicate to the lawyer which could have been helpful to the defense.” As I read the record, however, Hart did not testify that he “admitted his guilt to his attorney,” nor does the evidence demonstrate that Hart had no information which could have been helpful to his defense.

Hart testified that he told his attorney, “I was guilty for they had my name on the check.” Assuming, however, as appears likely, that Hart was charged with fraudulently issuing a check upon insufficient funds under Section 61-3-39 of the West Virginia Code, such offense is far from established by the fact, standing alone, that one’s name appears on the check. The elements of the offense are several and include:

(1) The drawing or delivering to another of a check;

(2) The check being drawn on insufficient funds;

(3) The check being used to obtain something of value, which was in fact obtained;

(4) With knowledge that the check is being drawn on insufficient funds;

(5) With intent to defraud; prima facie evidence of this element is established by evidence of the drawing of a check with knowledge that it is being drawn on insufficient funds, unless before indictment the drawer makes restitution.

It thus appears that Hart “admitted his guilt” only as to the first element listed above; and the evidence indicates that his appointed counsel made no attempt to explain the additional elements to Hart or to investigate them in any manner. “Of course, it is not for a lawyer to fabricate defenses, but he does have an affirmative obligation to make suitable inquiry to determine whether valid ones exist.” Jones v. Cunningham, supra, 313 F.2d 347, 353.

An additional responsibility of his attorney, since Hart was apparently entering his guilty plea to avoid prosecution as a recidivist, was to investigate the validity of the prior conviction upon which the recidivist charge would have been based. Again, it would appear from the evidence that this responsibility was not met. I believe the following language is appropriate in this case.

“We cannot acquiesce in the suggestion that because [the defendant] told his court-appointed attorney that he was guilty there was nothing else for the lawyer to do but to plead him guilty and hope for a light sentence. As we have just indicated, avenues of defense remained open, and the manifest failure to seek them out is chargeable to counsel or the lateness of the appointment, or both, not to [the defendant].” Jones v. Cunningham, supra, 313 F.2d at 352.

The majority’s conclusion that Hart’s guilty plea was “entered as an intelligent trial tactic, [and] is thus insulated from attack” is not persuasive. To characterize the “trial tactic” as “intelligent” is to beg the question here presented. If in fact Hart was not effectively counseled and represented his guilty plead was not “intelligent.”

The violation of Hart’s constitutional rights at the 1949 proceeding appears obvious. If .the decision in this case were based thereon, it would be unnecessary to resort to the protection claimed by the majority to be afforded here by the provisions of the Eighth Amendment. An unseemly clash between the federal constitution and the provisions of a state statute, as applied, would thus be avoided. By proceeding as it does, I believe the majority is unnecessarily deciding an eighth amendment issue, voiding the application of a state statute unnecessarily and, in short, reaching beyond the well established bounds imposed upon the federal judiciary by principles of self-restraint, comity, and the wise exercise of discretion in the uses of judicial power. In addition thereto, assuming, which I do not, that the eighth amendment issue may properly be reached I disagree with my brothers’ decision for the reasons hereinafter stated.

THE EIGHTH AMENDMENT

As conceded by the majority, the West Virginia habitual offender statute has been upheld by the Supreme Court against due process and equal protection claims. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912). The majority seeks to avoid the impact of these cases on the principle that “a con-cededly valid statute may be applied in a particular case in such a way as to violate constitutional provisions.” I would urge, however, that while this principle is certainly a valid one it has no application here.

The principle is well stated in Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 1073, 30 L.Ed. 220 (1886):

“Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discrimina-tions between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution”

West Virginia’s recidivist statute provides that anyone who has been convicted three separate times of offenses punishable by confinement in a penitentiary shall be sentenced to be confined in the penitentiary for life. W.Va.Code § 61-11-18 (1966). The sentence to be imposed is mandatory. There is no room for it to be “applied and administered by public authority with an evil eye and an unequal hand,” nor opportunity for “unjust and illegal discriminations between persons in similar circumstances.” The statute is constitutional on its face, and twice the Supreme Court has said that it is. The statutory requirement that a life sentence be imposed insures uniform application and prevents any abuse of discretion by the trial judge. The only discretion involved is that of the prosecutor in deciding whether to proceed against a particular defendant under the recidivist statute, and the conscious exercise of some selectivity in enforcement of the statute was upheld in Oyler v. Boles, supra, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446. It appears that the majority is deciding that the state judge must decide on a case-by-case basis whether the mandatory life sentence is disproportionate and that the nature of the crimes involved in the prior convictions is properly to be considered in determining the sentence. This is precisely what the statute does not permit. By requiring such action by the state judge the statute is nullified just as certainly as ir ruled unconstitutional on its face.

Assuming, without conceding, that the constitutionality of the application of the West Virginia recidivist statute may properly be considered and determined on a ease-by-case basis, I do not agree that the statute was applied unconstitutionally in the instant case. In determining that Hart’s sentence was disproportionate to his offenses the majority points out that the offense in 1949 was writing a check on insufficient funds for $50.00, which is the statutory cut-off point (see fn. 1, Majority Opinion), and had the check been for one penny less, the offense could not have been used to support his recidivist conviction since the punishment therefor would not have been confinement in a penitentiary. My brothers conclude that the “bad check case was very nearly trivial.” But, if $50.00 is “very nearly trivial,” may not $50.01 be similarly characterized? And if $50.01 may be so described may not $200.00, $500.00, or $1,000.00? There is no end to such reasoning. There must be a cut-off point someplace and that point has been fixed by the pertinent statute. In my view, the fact that Hart’s bad check in 1949 was for only $50.00, rather than more, has no proper place in considering whether he was constitutionally sentenced as an habitual offender.

The majority recognizes that courts have emphasized the element of violence and danger to the person in assessing the gravity of an offense, and states, “None of Hart’s offenses were against the person. None involved violence or danger of violence toward persons or property.” This is technically true. But Hart’s perjury was committed during the trial of his son on a murder charge, one of the most serious and cold-blooded crimes, usually accompanied by violence. The majority characterizes Hart’s situation as “a moral dilemma: to choose between his duty to tell the truth and family loyalty.” In his perjured testimony Hart was deliberately attempting to obstruct justice and to prevent the conviction of his son on a charge of murder in the first degree. Hart’s counsel might have presented an appealing argument to the jury based on “family loyalty,” but it has no place in the consideration of this appeal.

I now advert to a decision this day handed down by this same panel in Wood, Appellant, v. State of South Carolina et al., Appellees, 483 F.2d 149. That appeal was from the district court’s denial of habeas corpus relief to a South Carolina prisoner who was convicted on his pleas of guilty to two counts of an indictment, each count charging him with making an obscene telephone call in violation of S.C.Code Ann. § 16-552.1 (Supp.1971). Wood was sentenced to a term of five years’ imprisonment on each count, the sentences to run concurrently. Under the applicable statute Wood could have been sentenced to a maximum term of ten years on each count. Until the South Carolina statute was amended in 1967, the maximum term of imprisonment for that offense was six months.

In Wood, supra, we were confronted with the issue as to whether the sentences imposed were so disproportionate to the offenses as to constitute cruel and unusual punishment prohibited by the Eighth Amendment. We referred to the ten-year maximum for the statutory offense as “rather startling,” stated that the sentencing judge was doubtless influenced by Wood’s prior criminal record which included convictions for larceny and automobile theft, but we found no disproportionality and no violation of the Eighth Amendment. I joined my brothers in affirming in that case the denial of habeas corpus relief.

So, in Wood, we concluded that a sentence of imprisonment for five years for making a lewd or obscene telephone call was not excessive since it was within the limits fixed by the statute. If, as suggested, the sentencing judge may have taken into consideration Wood’s prior record of convictions for larceny and automobile theft, the record offenses were not necessarily crimes of violence and we had no information concerning the circumstances surrounding the commission of the crimes or the dollar value of the property stolen in either instance.

On the other side of the coin, in the case at bar the majority would strike down the mandatory sentence imposed under the West Virginia recidivist stattute but does not indicate any fixed formula or standard which would serve as a guide as to when and under what circumstances the mandatory life sentence is excessive, a sentence fixed by the West Virginia legislature as the penalty for repeaters or the habitual criminals who have been convicted of three separate felonies and have thus demonstrated a tendency to persist in the commission of crime. The majority simply finds it excessive here. Is it because of the “nearly trivial” bad check conviction ? Is it because the convictions did not involve crimes of violence? Is it because, in their wisdom, legislatures in other states may have fixed • lesser penalties for recidivists t Would a mandatory sentence of imprisonment for a specified term of years, rather than a life sentence, for a given number of felony convictions be deemed excessive and, if so, what limits would be accepted as reasonable? How about three convictions for lewd and obscene telephone calls? How many states provide a possible maximum term of ten years’ imprisonment for one obscene telephone call? The questions arising are innumerable; but, to me, the majority leaves them unanswered and to be determined on a case-by-case basis. Thus, the statute is being effectively devitalized and the West Virginia state courts, charged with the duty to follow the statutory law with respect to the imposition of sentences, will be faced with a dilemma in every case of recidivism.

I think my brothers will concede that there is a paucity of authority bearing upon the Eighth Amendment and that its application to the severity of prison sentences has never definitely and conclusively been determined. I am very much disturbed when I think of the chaos which may result from this decision. With all due respect to my brothers, for whom I have the highest personal regard, I feel impelled to note my disagreement.

      . This amount is the statutory cut-off point. Had the cheek been in the amount of $49.99, Hart could not have been given a life sentence; passing a bad check in an amount less than $50 is punishable by confinement “in the county jail” (not a penitentiary) for not less than five nor more than 60 days. W.Va.Code § 61-3-39 (1966). Thus, instead of a life sentence, he would have been exposed to the possibility of an extra five years’ imprisonment as a second offender. W.Va. Code § 61-11-18 (1966).

      . On appeal Hart also asserts that both his 1949 bad check conviction and his 1968 perjury conviction are invalid and therefore cannot be used as bases for the habitual offender charge. We disagree. There is no merit to the attack on the 1968 conviction, and we need only briefly discuss the 1949 case.
      Hart contends that his 1949 conviction was illegally obtained because (1) he was denied effective assistance of counsel in that counsel was not appointed until the day he entered his guilty plea, and (2) his guilty plea was unduly coerced. There being no record of the 1949 proceeding, a full hearing on both contentions was conducted by the district judge, who denied relief.
      Late appointment of counsel -raises a presumption that the defendant was denied effective assistance of counsel. Stokes v. Peyton, 437 F.2d 131, 136 (4th Oir. 1970) ; Twiford v. Peyton, 372 F.2d 670, 673 (4th Oir. 1967). Here, however, we agree with the district judge’s findings that the state effectively rebutted this presumption, Turner v. Maryland, 318 F. 2d 852, 854 (4th Oir. 1963), and that Hart’s guilty plea was entered as a result of a valid plea bargain, thus insulating it from collateral attack. See Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

        Hart testified that after counsel was appointed, the proceeding was adjourned and he was given an opportunity to discuss the pending charge with his attorney. He further testified that lie admitted his guilt to his attorney, who in turn advised him that he “didn’t have to plead guilty and could have a jury trial.” We believe the record fully supports the district judge’s denial of relief, and
      the hearing which the District Court conducted ascertained in considerable detail not only what the attorney did and failed to do before trial but demonstrated beyond doubt that the accused in fact had no information to communicate to the lawyer which could have been helpful to the defense.

        Turner, supra, 318 F.2d at 854.
      There is also ample evidence in the record that Hart’s plea of guilty was entered as the result of a plea bargain. In exchange for the guilty plea, the prosecutor agreed not to charge Hart with being an habitual offender, as he could properly have done on the basis of an earlier Indiana bad check conviction. A conviction as a recidivist would have resulted in an additional five-year sentence being imposed. We think Hart’s guilty plea, entered as an intelligent trial tactic, is thus insulated from attack. As the Supreme Court has stated in upholding the validity of a plea,
      It may be that [the defendant], faced with a strong case against him and recognizing that his chances for acquittal were slight, preferred to plead guilty and thus limit the penalty rather than to elect a jury trial
      Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970).

      . It is now settled that the ban of the eighth amendment is applicable to the states through the fourteenth amendment. Furman v. Georgia, 408 U.S. 238, 257 n. 1, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) ; Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed .2d 758 (1962).

      . Judge Butzner’s opinion in Ralph contains an excellent compilation of authority on the doctrine of proportionality.

      . E. g., Ralph v. Warden, 438 F.2d 786, 789 (4th Cir. 1970) ; see Packer, Making the Punishment Fit the Crime, 77 Harv.L. Rev. 1071 (1964) ; Wheeler, Toward a Theory of Limited Punishment: An Examination of the Eighth Amendment, 24 Stan.L.Rev. 838 (1972) ; Note, The Effectiveness of the Eighth Amendment: An Appraisal of Cruel and Unusual Punishment, 36 N.Y.U.L.Rev. 846 (1961).

      . The Court in Weems characterized the cruel and unusual punishment clause as “progressive” and “not fastened to the obsolete, but [one which] may acquire meaning as public opinion becomes enlightened by a humane justice.” Weems v. United States, 217 U.S. 349, 378, 30 S.Ct. 544, 553, 54 L.Ed. 793 (1910).

      . Furman v. Georgia, 408 U.S. 238, 258, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring).

      . See also Packer, supra note 4, at 1077.

      . The fact that a West Virginia statute requires a life sentence does not establish the punishment’s constitutionality in a particular case. The eighth amendment is a limitation on botli legislative and judicial action. Furman v. Georgia, 408 U.S. 238, 241, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Douglas, J., concurring) ; Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).

      . See Dye v. Skeen, 135 W.Va. 90, 62 S.E.2d 681, 689 (1950) ; State v. Stout, 116 W.Va. 398, 180 S.E. 443, 444 (1935).

      . See R. Donnelly, J. Goldstein, & R. Schwartz, Criminal Law 303 (1962) ; H. Packer, The Limits of the Criminal Sanction 39 (1968).

      . The attached survey of state statutes was prepared by Professor Barry Nakell, counsel for Hart and an instructor at the University of North Carolina Law School, and was submitted to us as part of Hart’s brief on appeal.

      . It has been noted that West Virginia’s statute does not contain the word “felony.” Passing a bad check in the amount of $50 is not a felony in some states.

        E. g., N.C.Gen.Stat. § 14-107 (Supp. 1971) provides in part:
      (1) If the amount of such' check or draft.is' not over fifty dollars ($50.00), the punishment shall be by a fine not to exceed fifty dollars ($50.00) or imprisonment for not more than 30 days. Provided, however, if such person has been convicted three times of violating G.S. 14-107, he shall on the fourth and all subsequent convictions be punished in the discretion of the district or superior court as for a general misdemeanor.
      (2) If the amount of such check or draft is over fifty dollars ($50.00), the punishment shall be by a fine not to exceed five hundred dollars ($500.00) or • imprisonment for not more than six months, or both. Provided, however, if such person has been convicted three times of violating G.S. 14-107, he shall on the fourth and áll subsequent convictions be punished in the discretion of the district, or superior court as for a general misdemeanor.
      It is not clear from information furnished us by counsel whether Hart’s bad check offense would have triggered the recidivist law of Indiana, Kentucky, or Texas.

      . A life sentence for rape is not mandatory where the accused pleads guilty or the jury recommends mercy. W.Va.Code § 61-2-15 (1966). A life sentence for kidnapping likewise is not mandatory where the victim is returned unharmed, with or without the payment of ransom. W.Va.Code § 61-2-14a (1966).

      . It appears likely that Hart’s memory as to liis conversation with counsel was accurate in this respect. The attorney testified :
      . [I]t was a common practice for the prosecuting attorney, ... to indicate that if a defendant wished to plead guilty who had a prior conviction, that the prior conviction would not be placed against him, although it was not an expressed condition but was certainly implied, that if a defendant stood trial and was convicted that the previous conviction would be put against him; whereas if he pleaded guilty it would not
      Q. Have you ever advised a defendant that a previous conviction would be used against him only if he stood trial and faced a jury?
      A. I may have.
      Q. On what basis would you do that?
      A. On the prosecuting attorney’s representation to me that you are representing this man, that if he wants to plead guilty, we will forget his previous conviction and won’t add the additional five years. If we have to go to all the bother of trying the case, and he is found guilty, why then we will put the five years onto it.
      I just repeated the message from the prosecuting attorney on different occasions.

      . In our experience as practicing attorneys or, perhaps, trial judges, how many times have cases come to our attention where- it was known to the prosecutor that an accused had issued a veritable flood of bad checks but the prosecutor was satisfied to accept a plea of guilty as to one and dismiss the other charges? Is this not true with reference to multiple offenses of other types and kinds such as breaking and entering, robberies, and the like? What can an appellate court possibly know of the circumstances surrounding every recorded conviction?


author: PER CURIAM:

text:
    Jesse Lee WOOD, Appellant, v. STATE OF SOUTH CAROLINA et al., Appellees.
    No. 72-1336.
    United States Court of Appeals, Fourth Circuit.
    Argued April 2, 1973.
    Decided July 13, 1973.

      Ann Beddingfield, Third Year Student (Barry Nakell, Chapel Hill, N. C., [Court-appointed counsel] on brief) for appellant.
    Emmet H. Clair, Asst. Atty. Gen., of S. C. (Daniel R. McLeod, Atty. Gen. of S. C., and Robert M. Ariail, Asst. Atty. Gen., of S. C., on brief) for appellees.
    Before BOREMAN, Senior Circuit Judge, and CRAVEN and BUTZNER, Circuit Judges.
   PER CURIAM:

Appellant Wood was sentenced by a South Carolina state court to concurrent terms of five years’ imprisonment on his pleas' of guilty to two counts of making obscene telephone calls in violation of S.C.Code Ann. § 16-552.1 (Supp. 1971).

The only issue presented us on this appeal from the district court’s denial of habeas corpus relief is whether the sentences imposed upon Wood are so excessive and disproportionate as to constitute cruel and unusual punishment prohibited by the eighth amendment.

The sentences given Wood were within the rather startling ten-year maximum allowed by South Carolina law. S.C.Code Ann. § 17-552 (Supp. 1971) ; State v. Hill, 254 S.C. 321, 175 S.E.2d 227, 232 (1970). The sentencing judge was doubtless influenced, and properly so, by Wood’s prior criminal record.

Whatever may be our subjective view of the matter, we fail to discern here objective factors establishing dispropor-tionality in violation of the eighth amendment. See Hart v. Coiner, 483 F. 2d 136 (4th Cir. 1973), decided today.

The decision of the district court will therefore be

Affirmed.

      . Until amended in 1967, maximum incarceration was six months. S.C.Code Ann. § 16-552.1 (1962).

      . Wood was serving a sentence for burglary at the time he placed the calls. His prior record included convictions for larceny and automobile theft.


author: EUGENE A. WRIGHT, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BELL MANUFACTURING DIVISION, Di GIORGIO LEISURE PRODUCTS, INC., Respondent.
    No. 72-1078.
    United States Court of Appeals, Ninth Circuit.
    July 31, 1973.

      Jonathan G. Axelrod (argued), Peter G. Nash, Gen. Counsel, Marcel Mallet Prevost, Asst. Gen. Counsel, NLRB, Washington, D. C., Charles M. Henderson, Director, NLRB, Seattle, Wash., Leonard M. Wagman, NLRB, Washington, D. C., for petitioner.
    George J. Tichy (argued), Spokane, Wash., for respondent.
    Before BARNES and WRIGHT, Circuit Judges, and SWEIGERT, District Judge.

       Of the Northern District of California.

   EUGENE A. WRIGHT, Circuit Judge:

The Board seeks enforcement of its order which was based on findings that the respondent company had violated Section 8(a)(1) of the Act. Respondent argues that enforcement should be denied, asserting that the trial examiner erred in his rulings on the admissibility of evidence and was guilty of misconduct in handling the three-day hearing; that a fair hearing was denied; that the findings of fact are • not supported by credible testimony; and that the Board’s order to bargain was error.

At oral argument, counsel for respondent argued with some vigor that the bias of the trial examiner was evident from his rulings on evidentiary questions, from his impatience and from his comments, on and off the record. Our review is limited to what is on the record.

The Board found that, after a majority of the employees (at least 28 of them) had signed union authorization cards, the company began an anti-union campaign. It threatened discharge of employees who talked about unionizing. It threatened to close the plant and to reduce the number of employees and shorten the work week. It granted a wage increase to induce employees to abandon the union. These and other findings were supported by testimony of employees and a union organizer, all of whom were found by the trial examiner to be credible.

After the activity by the company, a consent election was held and the union lost by a vote of 22 to 20, precipitating the filing- of unfair labor practice charges. The Board found that there was slight chance of erasing the effects of the unfair labor practices and of insuring a fair second election. It ordered the company to bargain with the union instead of ordering another election.

We find from the whole record that substantial evidence supports the Board’s finding that the company violated the Act. The scope of our review is limited, for the findings of the trial examiner, adopted by the Board, must be affirmed when there is substantial evidence to support the findings. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). It is for the trial examiner to evaluate the credibility of witnesses and to determine the weight to be given their testimony. Only he is in a position to observe their demeanor while testifying or while sitting in the hearing room. N.L.R.B. v. Tri-State Stores, Inc., 477 F.2d 204 (9th Cir. 1973).

The company charges the hearing examiner with bias, impatience and incompetence and we have been referred to many pages of the transcript which are said to substantiate the claim. The hearing lasted three days and the transcript of testimony takes 440 pages. It would have been longer except that a number of discussions and stipulations were taken off the record.

Two erroneous evidentiary rulings are referred to by respondent. It is urged that the trial examiner improperly refused a company exhibit which was identified by a vice president of the company. We observe that the exhibit was refused before an objection was made, so we are in the dark as to the ground, except as the trial examiner stated it himself, before ruling on his own objection.

The procedure leaves something to be desired as do other comments by the trial examiner. But we cannot say that a fair hearing or due process were denied. Indeed, the effort of the trial examiner to expedite the proceeding should be commended. He endured countless repetitive and irrelevant questions, arguments by counsel with witnesses and colloquy between counsel before concluding the long hearing.

Counsel for respondent also argues that the trial examiner erred in sustaining objections to a line of questioning on cross-examination of employees witnesses. Counsel contends that he was prevented from demonstrating that the alleged threats of the company had no effect on several of the employees, and that as a result the Board did not have all the evidence before it in making the finding required by N.L.R.B. v. Gis-sel Packing Co., Inc., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969) :

“In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer’s unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight, and that the employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue (see n. 32, supra).” Gissel, supra at 614-615, 89 S.Ct. at 1940.

Initially, we note that counsel made no offers of proof nor did he come forward with any coherent explanation to the trial examiner of the possible relevancy of the line of inquiry he was pursuing. Furthermore, we have been instructed that “It is for the Board and not the courts ... to make [the] determination [as to whether a bargaining order is warranted], based on its expert estimate as to the effects on the election process of unfair labor practices of varying intensity.” Gissel, supra at n. 32, p. 612, 89 S.Ct. at 1939. While we are convinced that it would have been the better course had the hearing examiner allowed respondent to explore by cross-examination the issue of impact, we cannot say on the record before us that his failure to do so was error.

“[A] reviewing court must recognize the Board’s competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship.” Gissel, supra at 620, 89 S.Ct. at 1943.

In the context of the extensive anti-union campaign engaged in by respondent here, we cannot say that the Board’s failure to hear the testimony of several of the employees concerning the impact of the employer’s actions on their votes was an error of such magnitude justifying a judicial setting aside of the Board’s finding that a bargaining order is appropriate because of the impact of the 8(a)(1) violations. Even had every employee testified that the employer’s anti-union actions did not influence his vote, we would have been hesitant to deny enforcement to a Board bargaining order on the record before us. Accordingly, on the authority of Gissel, we conclude that the order of the Board requiring bargaining on the basis of the cards rather than directing a new election was appropriate.

The order will be enforced.

      . Q. (By Mr. Tichy) I hand you what has been marked for purposes of identification as Respondent’s Exhibit 7. Can you tell me what it is?
      A. This is a book I had in my possession, through one of the managerial services I belong to. This I used as counsel on what I could and could not do, starting the moment I left Mr. Dis-brow, on the 30th, and went back to start my campaign.
      Q. Did you have this book before the 30th of March?
      A. I would pretty near have to assume I’ve had this book since its first printing, which was sometime in 1968.
      Q. And you used this book in connection with preparing your talks — I’m sorry, what did you tell me you used this book for?
      A. This was my bible. This is where I lifted the material for my anti-union letters. It is where I cheeked with what I could or could not, or felt I could. This gave me the feeling of what I could or could not do, could or could not say. I felt this close adherence to this book would keep me out of my present position.
      MR. TICHY: I now offer Respondent’s Exhibit 7 into evidence.
      TRIAL EXAMINER: This has as much value as him saying I called up my lawyer and asked what I could do before I made the speech. It is rejected. 152 pages which has no relevancy or materiality whatever.

      . TRIAL EXAMINER: I want to take time to thank counsel for the expeditious manner in which the case has been handled. Unfortunately, like divorce cases, people in these cases seem to get more relish out of quarreling with each other than getting together. This is your privilege.
      With that, the record is closed.

      . Q. (By Mr. Tichy) Without asking you how you voted in the election, so you understand that is not where I am headed, .didn’t you, in fact, actually vote in the election the same way you were thinking back on March 26, 27, 28, along in there?
      MR. STANGE: I object to the question. It is immaterial to the issues in the complaint.
      MR. TICHY: But it is very material. Here we have a lot of allegations about all these things going on, and then we have this type of proof. The question is did it actually move anybody.
      TRIAL EXAMINER: Is of no relevance whatever, and the Board has actually held in a number of cases. I am sustaining the objection.

      . We caution the Board that an explicit Gissel finding is required, and that the absence of one, in a close case, might justify remand to the Board. See e. g., New Alaska-Development Corp. v. N.L.R.B., 441 F.2d 491 (7th Cir. 1971). However, in this case we are convinced that the factors mentioned in Gissel were present. See, e. g., Self-Reliance Ukrainian American Cooperative Ass’n v. N.L.R.B., 461 F.2d 33 (7th Cir. 1972) ; N.L.R.B. v. Copps Corp., 458 F.2d 1227 (7th Cir. 1972) ; N.L.R.B. v. Drives, Inc., 440 F.2d 354 (7th Cir. 1971) ; N.L.R.B. v. Kostel Corp., 440 F.2d 347 (7th Cir. 1971).


author: AINSWORTH, Circuit Judge:

text:
    UNITED STATES for the Use and Benefit of JINKS LUMBER COMPANY, INC., Plaintiff-Appellant, v. FEDERAL INSURANCE COMPANY et al., Defendants-Appellees, Charles Register and Robert B. Staats, Trustee, Defendants-Appellants.
    No. 72-2754.
    United States Court of Appeals, Fifth Circuit.
    Aug. 13, 1973.

      Jerry W. Gerde, Panama City, Fla., for Jinks Lumber Co., Inc.
    Robert B. Staats, Panama City, Fla., for Register and trustee.
    Gary Lane, Pensacola, Fla., for Federal Ins. Co. and Dyson & Co.
    Before THORNBERRY, AINS-WORTH and RONEY, Circuit Judges.
   AINSWORTH, Circuit Judge:

This suit was brought under the Miller Act (40 U.S.C. § 270a et seq.) by Jinks Lumber Company, Inc., use-plaintiff, against Dyson & Company, a general contractor, and its surety Federal Insurance Company, to recover the unpaid balance of $11,202.79 for building materials (wallboard) furnished to Charles Register, a subcontractor who was also named a defendant. Register, therefore, became a..bankrupt and the Trustee in Bankruptcy was substituted in his place and filed a cross-claim against Dyson for additional amounts alleged to be due the subcontractor. The district judge in a nonjury trial held that Jinks was es-topped from asserting its claim against Dyson for nonpayment of materials furnished to Register; and further held that the Trustee for Register had not sustained his burden of proof and had shown “no wrongful conduct on the part of Dyson” which would support recovery of its claim.

I.

The Jinks Claim

Dyson was the general contractor under a government contract providing for construction of housing units at an Air Force base at Panama City, Florida. Register was both the wallboard and painting subcontractor, under separate subcontracts, on the job. The wallboard was furnished to the subcontractor by Jinks.

Register was unable, because of apparent financial inability, to furnish a performance bond and at Dyson’s insistence an arrangement was made whereby all funds due under the wallboard subcontract would be paid by Dyson in progress payment checks issued jointly to Register and Jinks. Letters were exchanged between Register and Dyson and it was agreed that Jinks would furnish copies of invoices and each monthly statement of the Register account to Dyson.

Jinks began furnishing materials to Register to be used on Dyson’s Air Force job in April 1969 and continued until October 1969.

Jinks’ practice was to close its billing at the end of the business day of the 25th of each month and send its customer a statement which would be due and payable by the 10th of the following month. Both Register and Dyson received these monthly statements. The manner in which progress payment checks issued by Dyson were handled thereafter is critical to a determination of whether the district judge correctly ruled that Jinks was estopped to enforce its claim for the unpaid balance of materials furnished to Register and used on the Air Force job. It is conceded that all amounts due Register under its wallboard subcontract with Dyson were paid in checks jointly payable to Register and Jinks. The Jinks position is that when such jointly payable cheeks were presented to it by Register, it took out all amounts then due and owing by Register and gave him the balance of the proceeds.

At the close of business on July 25, 1969, Register’s account with Jinks for materials supplied amounted to the sum of $5,153.81. The July monthly statement was then mailed to Register and Dyson showing that indebtedness and on July 29, 1969, Register paid $1,534.46 of his own funds to Jinks on account. Dyson then issued its first of three checks on account of the wallboard subcontract dated July 29, 1969, for $12,005.98 jointly payable to Register and Jinks. Sometime prior to the 10th of the following month, this check was brought by Register to Jinks which held out the sum of $3,619.35 thereof, thus paying the July account in full, and Jinks turned over the balance to Register. During the day on August 25, 1969, the second Dyson check for $9,935.10 jointly payable to Register and Jinks was endorsed by Jinks and turned over to Register since at that time Register’s account with Jinks was current. Jinks’ books were then closed at the end of the business day on August 25 and thereafter the August monthly statement was mailed to Register, copy to Dyson, showing a current balance due of $9,379.63. The third Dyson check dated September 10, 1969 jointly payable to Register and Jinks was for $9,187.29, and Jinks retained all of the proceeds thereof to apply on the Register account. The three Dyson checks payable jointly to Register and Jinks totaled $31,128.37. Materials furnished by Jinks to Register for the Dyson Air Force job, according to Mr. Pybus, Jinks’ executive vice-president, totaled $31,987.54.

The district court held that the total of the three cheeks issued by Dyson jointly payable to Register and Jinks was equal to the total of materials supplied by Jinks and that if Jinks had retained all of these funds and applied them to Register’s account Jinks would not only have been paid in full, it would have been overpaid.

We cannot agree with the court below that Jinks was estopped under the facts set forth to claim the balance due on its account. The joint payment procedure was initiated by Dyson because Register could not furnish a performance bond, and to insure payments to Jinks. But Jinks withheld such portion of the proceeds of the Dyson checks as was necessary to pay the amounts then due by Register under Jinks’ practice of closing its books at the close of business on the 25th of each month and payment being due by the 10th of the following month. This billing procedure is said by Jinks to be standard in industry at Panama City. That seems undisputed. Obviously Register required some portion of the proceeds since Dyson was issuing jointly payable checks to Register and Jinks for all amounts due during the progress of the job under the wallboard subcontract. For example, when Jinks endorsed and turned over to Register during the day of August 25, 1969, the Dyson check of that date for $9,935.-10, the transcript shows that Register put the proceeds in the Commercial Bank and “started paying people with it or continued to pay them with it,” including some notes due the Commercial Bank.

The trial court’s citation of Graybar Electric Co. v. John A. Volpe Construction Co., 5 Cir., 1967, 387 F.2d 55, in rejecting Jinks’ claim is inapposite. We do not have a Graybar case here. In Graybar, a Miller Act case, the contractor did everything it reasonably could to protect itself to prevent diversion of funds intended for payment of building materials. But Graybar misrepresented and overstated to the general contractor the amount of its current balance with .the subcontractor. Graybar also falsely represented to the general contractor that the jointly payable checks would be endorsed over to Graybar for payment of materials supplied and in course of delivery, whereas in fact the checks were endorsed over by Graybar to the subcontractor. Thus the general contractor relied on Graybar’s representations to its prejudice and the subcontractor was able to obtain large sums from the general contractor by Graybar’s endorsement of the jointly payable checks to the subcontractor, unknown to the general contractor.

In Moyer v. United States, 4 Cir., 1953, 206 F.2d 57, a Miller Act case, the materialman supplied false receipts to the subcontractor who in turn forwarded them to the general contractor. But es-toppel was denied by the court because the general contractor made no payments in reliance on the receipts and had suffered no detriment.

See also United States for use of Clark-Fontana Paint Co. v. Glassman Construction Co., 4 Cir., 1968, 397 F.2d 8, in which the court held that a materi-alman who had not deducted his current due from each jointly payable check did not lose his statutory rights under the Miller Act.

In United States for use of Friedrich Refrigerators, Inc. v. Forrester, 5 Cir., 1971, 441 F.2d 779, another Miller Act ease involving a claim of a materialman against the general contractor for materials supplied to a subcontractor, we commented favorably on the Fourth Circuit’s holding in Glassman, supra, as follows:

“A similar result was reached in Glassman, supra. There, the prime contractor had issued checks in sufficient number and amount to cover the cost of the material supplied by the materialman prior to the subcontractor’s default. However, because the subcontractor was having difficulties in meeting its expenses, the material-man had allowed the subcontractor to retain more than its proportionate share of the joint checks. Following the subcontractor’s default, a Miller Act suit was initiated by the material-man. Despite the asserted defenses of waiver, estoppel and payment, the Fourth Circuit allowed the material-man to recover the difference between the amount the materialman actually retained from the joint cheeks and the cost of the material delivered.”

Id. 441 F.2d at 783.

We hold, therefore, that Jinks was not estopped. It withheld the proceeds of the Dyson jointly payable checks to the extent of amounts then due by Register, supplied copies of the monthly statements to Dyson of the Register account which showed the manner in which the account was being handled and prior payments credited, was guilty of no misrepresentation or false invoices as in Graybar, supra, and should recover the balance admittedly unpaid for the furnishing of wallboard installed on the Air Force job. It would be unrealistic to expect that under the circumstances all of the proceeds due Register under his wallboard subcontract would be applied solely to the Jinks materials account. Dyson was not misled to its prejudice by Jinks.

II.

Trustee in Bankruptcy for Register Claim

The district court denied the Trustee’s claim against Dyson by holding that the Trustee had not sustained his burden of proof, that the testimony adduced at trial was “sketchy,” and that Register’s testimony was not corroborated by accurate written records. On the other hand, the court said that the testimony of Dyson’s employee, Hall, clearly controverted the position of Register. Finally, the court held that the Trustee had not shown any wrongful conduct on the part of Dyson which would support recovery of damages. Dyson’s claim of setoff against Register for completion costs of the painting subcontract of approximately $20,000 was maintained against the amount of $3,428.88 which Dyson conceded it owed Register on that subcontract.

Ordinarily, when questions of fact are involved, we look to the provisions of Rule 52(a), Fed.R.Civ.P., and affirm the trial court’s findings of fact unless clearly erroneous. But we are unable to determine from the state of this record and the findings of the district court what a true and correct accounting of the dispute between Register and Dyson would show. We do not have available all of the pertinent facts sufficient to make a proper disposition of the Trustee’s claim.

The district court’s findings are con-elusory and do not analyze the details of any of the contentions of the Trustee for Register as to the amounts claimed to be due by Dyson. We are impressed (at least prima facie) by the Trustee’s contention that according to computations testified to by Mr. Hall, Dyson’s superintendent on the job, from the records of his company, that as of September 25, 1969, Register had completed 40% of the wallboard contract and 38% of the painting contract which, together with materials stored in place, less 10% retainage, showed a net due Register of $78,681.25, whereas in fact he received payments on his two subcontracts totaling $66,944.10 (this includes credit dated September 24, 1969 of $2,333.65). Dyson responds that Register was not entitled to credit for materials stored, under the circumstances of his alleged default until final completion of the job by others. The district court did not reach or resolve this issue.

Thus, according to the Trustee’s contentions (as aménded by showing the September 24, 1969 credit), Dyson’s records indicate that as of October 13, 1969, Register had completed 62% of the wallboard contract and 51% of the painting contract which, together with stored materials, totaled $115,406.94 against what had been paid, $66,944.10, leaving a balance due Register of $48,462.84. It must be determined when Register’s contracts actually terminated. Was it October 2, 1969 when he was unable to pay his own labor; or two weeks later, approximately October 16, 1969, when he finally walked off the job not to return; or October 20, when Dyson gave him a written termination notice? The percentage of completion must be related to one of these dates in order to determine what was finally due Register. Is Register entitled to claim credit for materials stored, especially if the materials were not paid for? Who actually breached the contract, Dyson or Register? The question is difficult to answer until a factual determination can be made of the state of their account as of the end of September 1969. The district court has maintained a setoff against Register of $20,000 claimed by Dyson as a cost overrun for completing the painting contract. Apparently the wallboard contract was completed for $3,428.88 less than the contract price. Dyson’s claim for $20,000 cost overrun against Register is not substantiated in the record and is shown only by the testimony of Richard Werner, Dyson’s accounting clerk, who said that it was “approximately $20,000.” The setoff cannot be sustained, which is based only upon an approximation and without resort to actual records. True, the testimony of the Trustee through Register is sketchy. But that applies as well to Werner’s testimony. The Trustee’s claim — if it finally materializes — is made out not by Register’s testimony but by the testimony of Dyson’s superintendent, Hall, and the documentary evidence supporting the monthly requests for progress payments.

We do not attempt to prejudge the final decision in connection with the Trustee’s claim. But it is clear that the case must be remanded for clarification and supplementation of the record as to the questions we have raised herein. Further definite and more specific findings by the trial judge are necessary under the circumstances. The parties should be permitted an opportunity to offer such relevant additional evidence as will afford the district court an opportunity to clarify these issues and make an appropriate disposition thereof. See Henning v. Lake Charles Harbor and Terminal District, 5 Cir., 1968, 387 F.2d 264, 266.

Our holding as to the Jinks claim is conclusive and executory upon filing of the mandate herein without the necessity of awaiting further action on the Trustee’s claim which is a separate matter, with the tag end of establishing a reasonable attorney’s fee for Jinks.

Reversed and remanded.

      . Register’s letter to Dyson is as follows:
      “March 10, 1969
      “Dyson and Company P.O. Drawer P Pensacola, Florida
      “Job Data
      Job No. F08637-69-C-0070
      “Dear Sir,
      “I request that all payments for the Drywall Contract, on this job be-made jointly to Jinks Lumber Company and Charles Register.
      “Sincerely,
      ag /s/ Charles Register Charles Register”
      Dyson’s letter to Register, copy to Jinks, is as follows:
      “March 21, 1969
      “Charles ‘Chuck’ Register Paint Contractor P.O. Box 919-Panama City, Florida
      “Re: 160 Family Housing Units Tyndall AFB, Florida
      “Dear Chuck:
      “This will acknowledge receipt of your letter of March 10, 1969 in which yon requested that checks covering all of your payments for the Drywall Contract be made jointly to your firm and Jinks Lumber Company.
      “Wo are agreeable to this arrangement; however, we would like it understood that payments made under this subcontract are to be applied to your account for this particular project and not intermingled with your account for any other project. In order for us to be aware of the status of this account at all times, we would appreciate Jinks Lumber Company sending copies of all invoices and each monthly statement directly to this office. We do not believe this will be too much of an inconvenience to Jinks as there probably won’t be too much activity each month.
      “We trust this meets with your approval.
      “Very truly yours,
      DYSON & COMPANY /s/ RB
      Roy Brewton
      RB: JP Enclosure:
      Copy of your letter dated March 10, cc: Jinks Lumber Company”
      Jinks and Register’s joint letter agreement, copy to Dyson, is as follows:
      “April 1, 1969
      “Mr. Charles ‘Chuck’ Register 127 N. Cove Terrace Drive P.O. Box 919
      Panama City, Florida 32401
      “Re: 160 Family Housing Units Tyndall AFB, Florida
      “Dear Sir:
      “This is in agreement with JINKS LUMBER COMPANY and Charles ‘Chuck’ Register, Sheetrock Contractor, to furnish at the following prices materials as listed below:
      ‘A’ ■%” Regular $45.00
      ‘B’ %” Regular 53.00
      ‘C’ %” Fire Code 60.70
      “These prices include Sheetrock delivered to jobsite and set off as close to the building as possible. Also, agreement to be made by ‘Chuck’ Register to use fork-lift to unload sheetrock on job with no unnecessary tie-up to Jink’s trucks. “Payment for sheetrock, accessories and labor will be made jointly to Jinks Lumber Company and Charles Register, with payment being made every 30 days for material purchased.
      “SIGNED: Jerry Pybus
      Jerry Pybus, Mgr.
      Jinks Lbr. Co.
      Charles Register Charles ‘Chuck’ Register, Contractor
      JP/os
      cc: Dyson & Company”

      . The district judge in Ms written opinion said that the materials supplied totaled approximately $29,000 whereas Mr. Py-bus’ testimony showed the total to be $31,987.54.

      . The trial court found that application of any portion of these funds to Register’s preexisting indebtedness with the Commercial Bank was improper, and that payments to Register and Jinks jointly should have been applied to Jinks’ account only. But this was neither feasible nor practical with all of the progress pay- , ments due Register on the wallboard subcontract being made in jointly payable checks, leaving nothing for Register’s labor or other expenses. Jinks’ actions in applying proceeds to the amounts due and payable at the time the checks were obtained was proper under the circumstances.

      . The details of the Trustee’s .amended contentions follow:
      Wallboard — 62% complete
      ($100,000x62%) $ 02,000.00
      Painting — 51% complete
      ($85,000 x 51%) 43,350.00
      Stored materials 10,056.94
      Total 115,406.94
      Less paid to Register (including September 24,
      1969 credit of $2,333.65) 66,944.10
      Net claimed to be due Register $ 48,462.84