author: LEWIS, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Richard Kay HARPEL, Defendant-Appellant.
    No. 73-1408.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Nov. 13, 1973.
    Decided March 12, 1974.

      Darol C. Biddle, Pueblo, Colo., for defendant-appellant.
    W. Allen Spurgeon, Asst. U. S. Atty. (James L. Treece, U. S. Atty., Denver, Colo., with him on the brief), for plaintiff-appellee.
    Before LEWIS, Chief Judge, and MURRAH and McWILLIAMS, Circuit Judges.
   LEWIS, Chief Judge.

Appellant Richard Kay Harpel was convicted after jury trial in the United States District Court for the District of Colorado of disclosing an unlawfully intercepted wire or oral communication in violation of 18 U.S.C. § 2511(1)(c). He appeals from the judgment entered on his conviction.

The evidence adduced at trial revealed the following chain of events: On February 24, 1971 a telephone conversation took place between Corporal John Kon-cilja of the Pueblo, Colorado Police Department and agents of the Bureau of Narcotics and Dangerous Drugs in Denver, Colorado. A tape recording of this conversation was subsequently played on two separate occasions by appellant Har-pel to certain persons in a local Pueblo bar. The evidence did not establish who recorded the conversation or how it was done, although there was testimony that the recording could have been accomplished by attaching a suction cup to a telephone receiver and connecting it to a tape recorder. There were numerous telephone extensions in the offices at both ends of the conversation, but it was shown that none of the parties to the conversation either recorded, authorized the recording, or authorized listening in on the subject conversation. Nor was any evidence introduced that a wire tap had been authorized for any of the extension telephones on the date in question.

Harpel contends that there was no interception of an oral communication within the meaning of the applicable statute because the conversation was not conducted with the expectation of privacy which “oral communication” as defined under 18 U.S.C. § 2510(2) requires. In this respect he attaches particular significance to the apparent failure of Corporal Koncilja to press an available exclusionary button on his receiver which would have precluded the overhearing of the conversation by anyone else in the Pueblo Police Department. We consider it unnecessary to examine this contention in view of the fact that 18 U.S.C. § 2511(1) (c) clearly prohibits the disclosure of the contents of any intercepted wire or oral communication. The subject telephone conversation clearly qualified as a “wire communication” as defined in 18 U.S.C. § 2510(1). It was therefore incumbent upon the government to establish only that this wire communication had been “intercepted.”

Harpel charges that there is no interception of a wire communication within the meaning of Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134, if a telephone extension is used. In Rathbun the Court considered whether a former provision of the Federal Communications Act, 47 U.S.C. § 605, was violated when one of two parties to a telephone conversation permitted a police officer to listen in on an extension phone. In holding that there was no interception under. the facts presented the Court reasoned that “[ejach party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to hear the conversation.” 355 U.S. at 111, 78 S.Ct. at 164. This reasoning is clearly limited to the situation in which at least one of the parties has consented to the overhearing and thus is factually distinguishable from the case at bar. As Mr. Justice Frankfurter’s dissent in Rathbun pointed out:

The fact that the Court relies on “the consent of one party” evidently implies that it would not be without the purview of § 605 for a police officer to conceal himself in a room of a house or a suite of offices having several “regularly used telephone extensions” and surreptitiously to utilize such an extension to overhear telephone conversations. 355 U.S. at 113, 78 S.Ct. at 165.

In line with this reasoning, the court in Laughlin v. United States, 120 U.S.App.D.C. 93, 344 F.2d 187, held that a § 605 violation had been established because, although a party allowed the telephone conversation to be recorded through an induction coil under a telephone extension, the consent had been coerced. Moreover, it is apparent under 18 U.S.C. §§ 2511(2) (c) and (d) that consent is not a relevant issue in establishing the interception itself, since those subsections provide that an inter-ception is not unlawful where the interceptor is a party to the communication or where one of the parties has given prior consent to the interception. It is thus clear that consent is a consideration independent of interception.

Harpel also contends that there can be no interception when a telephone extension is used because 18 U.S.C. § 2510(5) (a) excludes from its definition of “electronic, mechanical, or other device” telephone equipment “furnished to the subscriber or user by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business. . . .” He maintains that it is just as likely as not under the evidence that the subject conversation was recorded through the use of an extension telephone and argues that there was therefore no interception. We agree that the evidentiary inferences point to the use of an extension telephone and thus face an interesting issue of statutory construction.

The government has adopted the position of the trial court below that the intercepting device was the recorder and not an extension telephone. While such a view avoids the problem presented, we are simply not persuaded by this contention. We agree with appellant that the recording of a conversation is immaterial when the overhearing is itself legal. It is the .means whereby the contents of the conversation are acquired that is crucial. See State v. Viz-zini, 115 N.J.Super. 97, 278 A.2d 235. A recording device placed next to, or connected with, a telephone receiver cannot itself be the “acquiring” mechanism. It is the receiver which serves this function — the recorder is a mere accessory designed to preserve the contents of the communication. This interpretation comports squarely with the clear distinction drawn between “intercepting” and “recording” under 18 U.S.C. § 2518(8) (a), which deals with judicially authorized interceptions:

The contents of any wire or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device, [emphasis added].

We therefore conclude that the tape recorder in question cannot constitute the intercepting mechanism when used, as it is argued here, connected to a telephone receiver.

The essence of Harpel’s argument with respect to the telephone extension is that the burden is on the government to establish that the interception was not accomplished through the use of a telephone extension. The government responds that a telephone extension under the statute constitutes an exception and that the burden thus lies on the defendant to establish that he falls within it. Tritt v. United States, 10 Cir., 421 F.2d 928.

The applicable rule of law is concisely-stated in 7 Fifths Old Grand-Dad Whiskey v. United States, 10 Cir., 158 F.2d 34, 36, cert. denied, 330 U.S. 828, 67 S. Ct. 870, 91 L.Ed. 1277:

Further, when a criminal statute sets forth an exception, which exception is not a part of the crime, but operates to prevent an act otherwise included in the statute from being a crime, the burden is on the defendant to bring himself within the exception.

The difficulty here lies in applying this rule to the statute in question. We conclude that the telephone-instrument exception is so incorporated with the substance of the clause defining the offense as to constitute a material part of the description of the act proscribed. It is undisputed that interception is an essential element of the crime with which appellant is charged. Simply stated, there is no interception if the acquisition of the contents of the communication is accomplished through telephone equipment used in the ordinary course of business. To require the defendant to prove that he qualifies for this exception would be tantamount to forcing him to admit that he did in fact acquire the contents of the communication and to show the government how he did it. Such an imposition runs counter to the fundamental burden placed upon the government to establish beyond a reasonable doubt “every fact necessary to constitute the crime. . . .’’In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368. The situation presented here is distinguishable from the type of exception examined in United States v. McCann, 5 Cir., 465 F. 2d 147. The court there held that if the defendants believed that they came within the consent exception of 18 U.S.C. § 2511, it was incumbent upon them to prove this fact. The distinction lies in the fact that the essential elements of the offense, including interception, were not in question. It was clearly an instance where the exception operated “to prevent an act otherwise included in the statute from being a crime.” Such is not the case here. We hold that to establish an interception under 18 U.S.C. § 2510(4) the government must establish beyond a reasonable doubt that the contents of a wire or oral communication were acquired through an electronic, mechanical, or other device other than a telephone employed by the subscriber or user in the ordinary course of its business.

This the government did in the case at bar, and we conclude that the failure to instruct the jury on the exception in question was harmless error. In so ruling, we must reach a question not yet ruled upon in the federal judicial system. The government’s evidence established that a conversation was recorded without judicial authorization or consent of any of the parties thereto. Without drawing a speculative conclusion as to whether an extension telephone was actually used to accomplish this end, we decide that even if a telephone extension was so employed, it does not qualify as an exception under 18 U. S.C. § 2510(5)(a).

What appellant Harpel has overlooked in his reliance on the exception is that the telephone equipment must be used “in the ordinary course of business.” We hold as a matter of law that a telephone extension used without authorization or consent to surreptitiously record a private telephone conversation is not used in the ordinary course_ of business. This conclusion comports with the basic purpose of the statute, the protection of privacy, and is in line with the reasoning of the court in People v. Tebo, 37 Mich.App. 141, 194 N.W.2d 517. In that case the question was whether it was error to introduce evidence of a telephone conversation which the defendant alleged had been intercepted in violation of 18 U.S.C. § 2511. The conversation was surreptitiously overheard by a policeman when the defendant placed his one permitted telephone call at the police station. The state attempted to justify the eavesdrop under 18 U.S.C. § 2510(5)(a)(ii) which excepts a telephone “being used by an investigative or law enforcement officer in the ordinary course of his duties.” The police claimed that they were listening to such conversations to prevent being charged for long-distance phone calls a prisoner might make. The court’s response to this contention was clear:

The plain effect, no matter what the intent, is to eavesdrop on all calls emanating from its phones. The interest of the sheriff’s department in limiting expenses can be protected by other procedures. We do not believe the activity engaged in here was an ordinary duty contemplated by the statute. 194 N.W.2d at 522.

Similarly, we do not feel that a telephone used in the manner contemplated under the facts of this case is employed in the ordinary course of business. Harpel qualifies for no exception which would bring him without the purview of 18 U.S.C. § 2511.

Harpel claims finally that the trial court erred in admitting, over objection, his statement on cross-examination that he had been fired from the police department. He argues that the admission of this testimony permitted the jury to infer that he had been fired for commission of the crime with which he was charged. Any error in this respect was nonpre judicial. The indictment charged Harpel with committing the offense between February 24 and March 31, 1971. Yet Harpel testified that he remained a police officer until June 28, 1972. Not only is the inference of which Harpel complains a weak one, but the other evidence of his guilt is substantial. An error possibly prejudicial does not require reversal if the evidence of defendant’s guilt is strong. United States v. Jackson, 10 Cir., 482 F.2d 1167.

Affirmed.

      . § 2511. Interception and disclosure of wire or oral communications prohibited
      (1) Except as otherwise specifically provided in this chapter any person who—
      (c) willfully discloses, or endeavors to disclose, to any other person the contents of any wire or oral communication, know-
      ing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection; or
      shall be fined not more than $10,000 or imprisoned not more than five years, or both.

      . § 2510. Definitions
      As used in this chapter—
      (2) “oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation;

      . § 2510. Definitions
      As used in this chapter—
      (1) “wire communication” means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception furnished or operated by any
      person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications; . . .
      It was stipulated that Mountain Bell Telephone Company provided all telephone facilities for the Pueblo Police Department and the Bureau of Narcotics and Dangerous Drugs in Denver and that the company qualified as a common carrier under the definition cited above.

      . § 2510. Definitions
      As used in this chapter—
      (4) “intercept” means the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.

      . § 2511. Interception and disclosure of wire or oral communications prohibited
      (2) (c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
      (d) It shall not be unlawful under this chapter for a person not acting under col- or of law to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurious act.

      . Harpel’s theory that 18 U.S.C. § 2511(1) (c) has no applicability when a telephone receiver is used because there is no proof that the contents of the conversation are acquired by an interception of the communication as it passes through the wires is simply not in line with the plain meaning of “intercept.” See note 4 supra. Nor is his reliance on United States v. Carroll, D.Colo., 332 F.Supp. 1299, well placed. That case involved the overhearing of one party talking into a telephone and did not concern the communication over the wire itself.

      . See also Salazar v. People, 153 Colo. 93, 384 P.2d 725, in -which the defendant was charged with possession of marijuana. The statutory definition of marijuana excepted seeds of the plant which were incapable of germination. The court held that the state bad the burden of proving that the marijuana in question was not subject to this exception.


source: Caselaw Access Project

author: LAY, Circuit Judge.

license: Public Domain

text:
    DEBRON CORPORATION, Appellant, v. NATIONAL HOMES CONSTRUCTION CORPORATION, Appellee.
    No. 73-1504.
    United States Court of Appeals, Eighth Circuit,
    Submitted Jan. 15, 1974.
    Decided March 13, 1974.
    Rehearing and Rehearing En Banc Denied April 3, 1974.

      Samuel C. Ebling, John B. Lewis, St. Louis, Mo., for appellant.
    Albert E. Schoenbeck, St. Louis, Mo., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and STEPHENSON, Circuit Judges.
   LAY, Circuit Judge.

Debron Corporation appeals from the district court’s grant of a judgment notwithstanding the verdict after a jury awarded it damages against National Homes Construction Corporation, arising from the latter’s failure to perform as a subcontractor. National Homes Construction Corporation, a steel erector, was the only subcontractor to submit a bid to the Debron Corporation, a general contractor, for the steel erection of a building in Buffalo, New York. Debron used that bid as part of its total bid with the owner for the main construction project. After Debron was awarded the main contract, National Homes withdrew its bid. National Homes did not perform and Debron was required to obtain performance of the subcontract from a third party at an increased cost. Before trial, Debron voluntarily dismissed its count for breach of contract and submitted its proof solely on the theory of promissory estoppel, i. e., that it justifiably relied to its detriment on the subcontractor’s bid and therefore National Homes was obligated to perform. The trial court submitted the case to a jury and a verdict was returned in favor of Debron in the amount of $97,691. The trial court granted a judgment notwithstanding the verdict in favor of National Homes, holding that Debron had substantially changed the terms of the offer originally made by National Homes, and that the doctrine of promissory estoppel' did not apply because the plaintiff failed to meet its burden of proof that it had relied upon the original quotation submitted. We reverse and remand the case with directions to reinstate the verdict.

Facts

Debron is engaged in the steel fabrication business. In the latter part of 1970, Debron decided to submit a bid to the New York State University Construction Fund on the fabrication and erection of the structural steel for the new medical science building of the State University of New York at Buffalo. Accordingly, in order to prepare its own bid, Debron sought estimates from several steel erectors. National Homes was the only steel erector to express interest in the project.

In December, 1970, Jim Orr, Vice President and General Manager of the Steel Erectors Division of National Homes, requested Debron to send him the plans and specifications for the Buffalo job so that he could prepare an estimate. These plans were sent to Orr on December 22, 1970.

On January 7, 1971, Orr traveled to the Debron plant in St. Louis to review the plans for the Buffalo job with De-bron personnel. On January 11, 1971, Orr telephoned Mr. Muehlenbrock of De-bron to submit a unit price bid on the erection of the structural steel and steel deck for the Buffalo job. The basic price of Orr’s bid was $128 per ton for the erection of the structural steel and $14 per hundred square feet for the steel deck. Muehlenbrock made a contemporaneous notation of the substance of the phone call. Orr did not at any time reduce his bid to writing; however, Orr’s files contained an estimate sheet in his own handwriting which conformed to Muehlenbrock’s notes. Orr’s estimate sheet read in part as follows:

"Bid price of $128 per ton was accepted with the provision that we furnish bond and possibly make an allowance for steel delivered to the job site."
"Total tonnage 3,700 @ $128 per ton 473,600 Decking 1572 squares @ $14 22,008 Total job approx. 495,608"

It was orally agreed by both parties at the time of the January 11 phone call that Debron would use National Homes’ bid in the preparation of Debron’s own bid and that if Debron were awarded the main contract, it would use National Homes as its steel erection subcontractor.

Debron thereafter submitted its overall bid to the Construction Fund. According to Debron, the difference in the steel erection price submitted by Orr, $495,608, and that submitted by Debron to the Construction Fund, $519,080, reflects only the standard profit mark-up customarily applied by a general contractor.

On January 13, 1971, Debron was declared the low bidder. Immediately after learning that he was the low bidder, Muehlenbrock advised Orr of that fact. On January 15, 1971, Muehlenbrock advised the Construction Fund that National Homes would be Debron’s steel erection subcontractor.

Shortly thereafter Orr met with Muehlenbrock in Buffalo to review plans for coordination of the job between De-bron and National Homes. At this conference, Orr reaffirmed National Homes’ bid as made by telephone on January 11, 1971. The parties then met with the construction Fund where Orr was introduced as Debron’s subcontractor for the steel erection job. Orr testified that he attended the meeting because he thought he was the subcontractor on the job and all subcontractors had to be approved by the Construction Fund. Orr told his supervisor, Mr. Burton, Executive Vice President of National Homes, that he was attending the meeting in Buffalo and subsequently furnished Burton with a copy of the minutes of the meeting for Burton’s files.

On February 1, 1971, Orr notified De-bron that National Homes had been approved under the Buffalo plan as an equal opportunity employer, as required by the Construction Fund.

During late January and early February, Debron personnel communicated with Orr by telephone several times to discuss details of the job. On February 8, 1971, Orr went to the Debron plant in St. Louis to review further details. At that time, according to Debron’s evidence, Orr and Debron agreed that even though the original specifications called for the work to begin on May 1, 1971, the actual erection of the steel need not start before July 1, 1971, because the job would only require fourteen weeks and did not need to be completed before November 1.

During February, March and April, Debron placed orders with steel mills for the furnishing of the steel. During this time period, Debron also forwarded to Orr all solicitations it received from field painters, renters of field toilets, etc., regarding the Buffalo job. During the same time period, Orr himself contacted Buffalo labor unions and equipment suppliers. On February 22, 1971, Debron sent Orr a letter regarding safety requirements imposed by the Buffalo ironworkers’ union and a letter regarding the accidental interruption of utilities on the project.

On February 25, 1971, the Construction Fund sent Debron a letter of intent, authorizing Debron to proceed with the job. This letter of intent specified National Homes as the steel erector.

On March 3, 1971, Debron informed National Homes that it could proceed with its planning and preparation work for the project to commence in late June of 1971. National Homes was informed that a formal purchase order for this work was being processed and would be forwarded shortly.

On March 18, 1971, Debron signed a contract with the Construction Fund and executed two bonds to the Fund. The Construction Fund did not sign the contract until May 27, apparently because of an unexpected soil problem that arose with the foundation contractor. Debron was advised of this problem and immediately notified Orr. Orr agreed that based on the July 1 starting date previously discussed, the schedule could still be met and it was decided that Debron and National Homes would continue to prepare for that starting date.

In late April, Orr called Muehlenbrock to advise him that National Homes would not perform any work on the Buffalo job. Orr offered no explanations. Muehlenbrock then called Burton, who confirmed Orr’s message. Burton sent a letter, dated May 3, 1971, stating that Orr had lacked the authority to bid the job, but conceding that Debron had no way of knowing this.

On May 26, 1971, Debron began soliciting bids from other steel erectors. Four erectors expressed interest and De-bron sent each of these four a written bid form designed specifically for this job after National Homes refused to perform. The low bid was for $593,299, which price was ultimately paid by De-bron. The difference between this price and National Homes’ bid was $97,691.00, the amount awarded Debron by the jury.

On May 27, 1971, Debron received the formal contract signed by the Construction Fund, which had been previously signed by Debron. On June 1, 1971, De-bron sent National Homes a formal purchase order which utilized the price quotations of $128 per ton and $14 per square originally supplied by Orr on January 11, 1971. The total price, however, was $8,746.00 less than Orr’s total price of $495,608. Debron’s evidence indicates that the difference resulted from the fact that fewer tons of steel were required than had been originally anticipated. The back of the purchase order contained eleven “Terms and Conditions” which concededly had never been discussed with Orr. National Homes refused to sign the purchase order.

Promissory Estoppel in Missouri

The original negotiations and the alleged “offer” made by National Homes took place in Missouri and it is agreed that the law of the State of Missouri applies.

Debron urges that the Missouri courts follow § 90 of the Restatement of Contracts, which reads as follows:

A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

National Homes argues that the doctrine of promissory estoppel, although recognized by Missouri courts in some cases, is not applicable to construction contracts, citing Sharp Bros. Contracting Co. v. Commercial Restoration, Inc., 334 S.W.2d 248 (Mo.App.1960). We find that case distinguishable from the facts here. In Sharp Bros., the subcontractor’s bid expressly stated that the bid was subject to acceptance within ten days. The plaintiff did not accept within that time and was accordingly denied recovery. Promissory estoppel was not raised in Sharp Bros.

The doctrine of promissory estoppel has been approved in several Missouri cases. Early cases applied the doctrine to gratuitous promises. See, e. g., School District v. Sheidley, 138 Mo. 672, 40 S.W. 656 (1897); Pitt v. Gentle, 49 Mo. 74 (1871). However, as early as 1909 the Supreme Court of Missouri, in a 4-3 decision, adopted the doctrine in a commercial transaction. Underwood Typewriter Co. v. Century Realty Co., 220 Mo. 522, 119 S.W. 400 (1909). There the court stated:

That performance, on the strength of the offer made, having been accomplished at an outlay of time and labor on the part of the offeree or promisee, with defendant’s knowledge as alleged in the petition, makes it enforceable against the offeror or promisor

Underwood Typewriter, supra at 403.

This doctrine has found further support in later Missouri cases. See, e. g., In re Jamison’s Estate, 202 S.W.2d 879 (Mo. 1947); Aden v. Dalton, 341 Mo. 454, 107 S.W.2d 1070 (1937). We find it significant that in the former decision the court relied upon the application of promissory estoppel set forth in the South Dakota decision of Northwestern Engineering Co. v. Ellerman, 69 S.D. 397, 10 N.W.2d 879 (1943). There the court was presented with facts similar to the situation here, when a subcontractor withdrew his bid after a prime contractor had relied upon the bid in submitting an overall bid. The South Dakota court rejected the early decision written by Judge Learned Hand in James Baird Co. v. Gimbel Bros., 64 F. 2d 344 (2d Cir. 1933). The court in Ell-erman stated:

In spite of this opinion [Baird], we believe that reason and justice demand that the doctrine be applied to the present facts. We cannot believe that by accepting this doctrine as controlling in the state of facts before us we will abolish the requirement of a consideration in contract cases in any different sense than an ordinary estoppel abolishes some legal requirement in its application.

Ellerman, supra, 10 N.W.2d at 884.

Similar application of the rule of promissory estoppel in construction bid cases is found in Constructors Supply Co. v. Bostrom Sheet Metal Works, Inc., 291 Minn. 113, 190 N.W.2d 71 (1971); Reynolds v. Texarkana Construction Co., 237 Ark. 583, 374 S.W.2d 818 (1964); Dren-nan v. Star Paving Co., 51 Cal.2d 409, 333 P.2d 757 (1958).

We are satisfied that Missouri recognizes the doctrine of promissory estoppel in commercial transactions as well as in situations involving gratuitous promises and we find no logical reason why construction contracts should be distinguished from any other commercial or business transaction.

Sufficiency of the Evidence

Under § 90 of the Restatement, it is necessary for the plaintiff to prove three basic contentions: (1) a promise, (2) the promisee’s reliance, and (3) an injustice which can be avoided only be enforcement of the promise. We find the factual proof by Debron was sufficient to meet its burden and to allow a jury to find in its favor.

Although the traditional contract element of “mutuality” may be absent in promissory estoppel cases, a binding offer in the form of a promise by the subcontractor is still a prerequisite to recovery. In the present case it is argued that no such promise was made because there were no specific words of commitment and understanding as to the terms of performance required of National Homes. National Homes relies upon this court’s decision in Thos. J. Sheehan Co. v. Crane Co., 418 F.2d 642 (8th Cir. 1969). In Sheehan, a suit based upon an alleged breach of contract, a supplier of copper tubing quoted a price to the Sheehan. Company as an estimate of cost to enable the Sheehan Company to make an overall bid on a building project. The quotation was based on what was known as a “Chase Sheet” and there was a clear notation on the sheet that the prices might fluctuate from time to time. This court stated:

Prices and price factors quoted by suppliers to contractors for the purposes of aiding contractors to make bid estimates, without more specific terms', do not obligate the supplier to comply with any purchase order upon whatever terms and conditions the contractor may choose to offer at some undetermined date in the future.

Sheehan, supra at 645.

In Sheehan, there was only an invitation to make an offer in the future. Cf. Robert Gordon, Inc. v. Ingersoll-Rand Co., 117 F.2d 654 (7th Cir. 1941). There was no firm offer to supply a given quantity of material. The factual proof is much different here. In the present case we are not dealing with a supplier of material simply quoting a current market price of his product. Here the bid made by National Homes was for the erection of a specific building and the price submitted was based on a specific quantity of structural steel involved. Implicit within the promise was the knowledge of Debron that National Homes had inspected the specifications and visited with Debron personnel to review the plans for the job. The facts show a sufficient promise by National Homes that it would perform a specific job at a certain price.

We turn then to the question of De-bron’s reliance. There can be little question that National Homes’ bid was submitted with a reasonable expectation that it would induce action of a definite and substantial character on the part of Debron. The evidence is undisputed that Orr knew at the time he submitted the bid that Debron was going to use its bid on the overall construction project. Debron did in fact use Orr’s bid.

Unlike Sharp Bros., supra, there was no time limit expressed by National Homes as to when Debron had to accept the bid. In any event, Debron immediately informed National Homes that it was the only bidder and that it was going to use its bid and that it would be the subcontractor for the erection work, assuming, of course, that Debron was awarded the main contract. As soon as Debron received notice of the award of the contract, it informed National Homes of this fact and Orr continued to meet with the owners as well as with Debron personnel to make plans for carrying out the contract. National Homes had full knowledge of the detriment incurred by Debron and there cannot be any argument that the offer itself was not accepted within a reasonable time. We agree with the general proposition that a contractor should not be free to delay acceptance after he has been awarded the general contract in hopes of getting a better offer. But that did not happen here. Nor was there any attempt to reopen bargaining with the subcontractor. If any of these events had taken place, the result here would be different. Debron promptly informed the defendant that he was being awarded the job and the defendant acted accordingly. Compare Drennan v. Star Paving Co., 51 Cal.2d 409, 333 P.2d 757, 760 (1958).

In addition to submitting National Homes’ bid, Debron relied on its continuing relationship with National Homes as it proceeded to meet with the Construction Fund. With the understanding that National Homes was going to perform its bid, Debron went ahead and ordered the steel, made contracts with painters, laborers, and held several meetings with the Construction Fund. In addition, in signing the contract with the Construction Fund it put up two performance bonds at great expense to it. National Homes pursued the project and continued to reaffirm its bid and its promise to perform the job. This reaffirmation by its own conduct not only increased Debron’s assurance that it could rely upon National Homes’ bid, but lulled it into a sense of security so that it further pursued the various steps that it took in preparing for the project. In view of this justifiable overall reliance, we are satisfied substantial injustice would occur here without enforcement of the promise.

The trial court denied recovery because: (1) the price specified in Debron’s purchase order was $8,746.00 less than Orr’s original quotation, (2) there was a change in the starting date, and (3) the back of the purchase order contained eleven new “Terms and Conditions.” These factors overlook that National Homes’ renunciation and withdrawal of its offer was based solely on the allegation that Orr did not have the authority to bid on any job in the State of New York. This was the only reason offered by National Homes for its refusal to perform.

These events after the renunciation are irrelevant to the determination of whether or not there was a substantial detriment induced by the original promise. See Railway Co. v. McCarthy, 96 U.S. 258, 24 L.Ed. 693 (1877); Rainier v. Champion Container Co., 294 F.2d 96, 102 (3d Cir. 1961); Reynolds v. Texarkana Construction Co., 237 Ark. 583, 374 S.W.2d 818 (1964).

Nevertheless, even if the subsequent events are considered, there is no basis for holding that Debron so altered the terms of the agreement as to constitute a counter-offer. The price differentiation in the purchase order of $8,746.00 was explained by Debron as resulting from a slightly lower tonnage requirement than had originally been anticipated. The jury could find this to be true. This naturally would affect the total price since Orr’s original bid was on a per ton basis. The purchase order does in fact adhere to Orr’s quoted unit prices of $128 per ton and $14 per square.

On the question of the starting date, witnesses testified that Orr agreed with Debron personnel before the National Homes revocation that the job need not start until July. This testimony conforms with the estimate sheets found in Orr’s file. National Homes claims that the May starting date was crucial because the cost of the job would increase if it extended into the winter months; however, even under the July 1 date, the evidence shows the job would still have been completed in good weather.

We have examined the terms and conditions on the back of the purchase order and find nothing within these terms which National Homes should not have expected to be included in any contract. They are standard .clauses. . Cf. Reynolds v. Texarkana Construction Co., 237 Ark. 583, 374 S.W.2d 818, 820 (1964). National Homes claims that it would not have agreed to the term requiring it to post a bond; however, Orr’s estimate sheet indicates that National Homes did intend to put up the bond.

Thus, even if the circumstances subsequent to the renunciation of the promise .are considered, there is sufficient evidence to allow the case to go to the jury.

Judgment reversed and remanded with instructions to reinstate the verdict with interest to be awarded from the date of the verdict.

      . For a fuller discussion of the doctrine of promissory estoppel, see Henderson, Promissory Estoppel and Traditional Contract Doctrine, 78 Yale D.J. 343 (1969) ; Boyer, Promissory Estoppel: Requirements and Limitations of the Doctrine, 98 U.Pa.L.Rev. 459 (1950).

      . One writer has analyzed Sharp Bros, and its effect on Missouri law as follows:

        Sharp Bros, does seem to stand for at least this: that where an offeror places a time limit upon his offer, there can be no reliance such as is necessary for promissory estoppel, because the stated time limit informs the offeree, “you may not rely upon this offer after the time limit has expired.” However, the case cannot be safely said to go as far as Learned Hand’s opinion in Baird, rejecting the application of promissory estoppel to any commercial transaction wherein the offeror simply calls for an acceptance. Quite possibly, only a case involving an offer without such a time limit will settle how far Missouri courts will go in applying promissory estoppel to this type of commercial transaction.
      28 Mo.L.Rev. 143, 145-146 (1963).

      . There can be no contention nor is there any claim here that Orr did not have the authority, or at least the apparent authority, to act on behalf of National Homes in the manner he did. Orr testified that Burton never told him he could not make this Bid. In fact, the evidence shows that Burton was kept informed of Orr’s progress on this particular bidding project. Moreover, the law is clear that National Homes would be es-topped to deny Orr’s apparent authority under the circumstances here. See Wayne v. New York Life Ins. Co., 132 F.2d 28 (8th Cir. 1942) ; State ex rel. Massman v. Bland, 355 Mo. 17, 194 S.W.2d 42 (1940) ; Koewing v. Greene County Bldg. & Loan Ass’n, 327 Mo. 680, 38 S.W.2d 40 (1931) ; Edwards v. Thomas, 66 Mo. 468 (1877).

      . In a similar situation the Arkansas Supreme Court gave little weight to this kind of argument. In Reynolds v. Texarkana Construction Co., 237 Ark. 583, 374 S.W.2d 818, 820 (1964), the court stated:
      As a secondary argument Reynolds contends that his offer was revoked by a counteroffer made by Texarkana. The exact terms of the proposed subcontract had not been discussed by the parties when Reynolds submitted his bid. Later on, after Texarkana had obtained the principal contract, Texarkana sent Reynolds a mimeographed subcontract. Reynolds now says that the proffered agreement contained several clauses, such as a performance bond requirement and daily liquidated damages for delay, that- he would never have agreed to. Hence, he insists, the proposal amounted to a counteroffer that constituted a rejection of his bid. Smith v. School Dist. No. 89, 187 Ark. 405, 59 S.W.2d 1022.
      The trial court may well have doubted whether Reynolds would actually have refused the subcontract if it had contained a price sufficient to assure him of a profit. In any event, however, we think the present contention to be an afterthought that comes too late. Reynolds rejected the proposed subcontract upon the sole ground that he could not do the work for the price that was offered. His conduct in that respect constituted a waiver of the objections that are now leveled against Texarkana’s proposal.


author: OAKES, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Frank D’AMATO et al., Defendants-Appellants.
    Nos. 591 to 593, Dockets 73-2437 to 73-2439.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 21, 1973.
    Decided March 14, 1974.

      Henry J. Boitel, New York City, for defendant-appellant Abramo.
    Frank A. Lopez, Brooklyn, N. Y., for defendants-appellants D’Amato and Zito.
    Bancroft Littlefield, Jr., Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., for the Southern District of New York, John D. Gordan III, Asst. U. S. Atty., on the brief), for appellee.
    Before FRIENDLY, HAYS and OAKES, Circuit Judges.
   OAKES, Circuit Judge:

Appellants were the subjects of a two-count indictment, count one charging a conspiracy to possess and distribute heroin in violation of 21 U.S.C. § 846, and count two charging possession and distribution of 487.27 grams of heroin on February 20, 1973, in violation of 21 U.S.C. §§ 812, 841(a)(1) & 841(b)(1)(A). After a five-day jury trial, all appellants were convicted on the conspiracy count. Appellant D’Amato was also convicted on the substantive count; that count was dismissed as against appellant Abramo, and the jury failed to return a verdict on that count with respect to appellant Zito. Appellants challenge their conviction on various grounds: that the evidence was insufficient to sustain the convictions under the conspiracy count; that they were deprived of a fair trial by the trial court’s refusal to compel the Government to reveal the name of a paid, registered informant of the Bureau of Narcotics and Dangerous Drugs (BNDD), as of July 1, 1973, the Federal Drug Enforcement Administration (FDEA), so that he could be called as a witness; that the introduction into evidence of deceased coconspirator Frank Burdieri’s statements was reversible error because of insufficient indicia of reliability and because those statements were generally not made in furtherance of the conspiracy charged; and that the medical condition of one of the jurors, discovered during the jury’s deliberation, entitled them to a new trial or, in the alternative, to a full hearing with regard to the nature of that illness and its effect on the entire proceedings. Appellant Zito further asserts that count two should have been dismissed as to him by the district court. After careful consideration of these arguments, we reject them and affirm the convictions.

I. SUFFICIENCY OF THE EVIDENCE.

A brief statement of the facts adduced at trial is required. On January 31, 1973, special agent McElroy of the BNDD, acting in an undercover capacity, went to a Manhattan bar accompanied by a paid BNDD informant, who introduced McElroy to the late Frank Burdieri. Burdieri, according to Me-Elroy’s testimony, said that he had connections through which heroin could be purchased, one such being appellant D’Amato. D’Amato, said Burdieri, was “very big” in the heroin business, having taken over the heroin operations of one Vinnie Pappa. At the end of this meeting, Burdieri agreed to contact McElroy when he had lined up some heroin.

On February 16, Burdieri informed McElroy that the latter could purchase % kilogram of heroin for $13,000, which included a commission of $500 for Bur-dieri. McElroy told Burdieri that it would take a few days to obtain the money and agreed to meet Burdieri on February 20. On that day, prior to the meeting, McElroy placed $12,900 in a plain white envelope which had been marked for later identification. Mc-Elroy, Burdieri and the informant met at noon, at which time Burdieri told McElroy that the money had to be advanced before receipt of the heroin. McElroy refused to “front” the money in this fashion, and Burdieri agreed to find out whether delivery could be effected without the “front” of the money. Later, telling McElroy that he was going to meet “his people,” Burdieri exited McElroy’s automobile and motioned over to the curb a black 1973 Oldsmobile driven by a person later identified as appellant Zito and carrying a passenger identified as appellant D’Amato. Bur-dieri spoke through the passenger window to D’Amato and Zito for five to ten minutes, returned to McElroy’s automobile and told McElroy that he had just talked to “his people” and that the buy could be made within the next 30 minutes without the moneys being “fronted.” Burdieri departed in a taxi to pick up the heroin and was observed some 35 minutes later walking down a sidewalk carrying a brown paper bag in a newspaper followed by the Oldsmobile containing D’Amato and Zito. Burdieri walked to a coffee shop where he met McElroy; they then went to McElroy’s automobile, where Burdieri gave McElroy the bag containing slightly less than % kilogram of heroin in exchange for the envelope containing $12,900. Burdieri asked McElroy to drop him off at a specific place because Burdieri had “to meet his people right away to give them the money.” At that place, Burdieri was dropped off and immediately picked up by the same Oldsmobile, Burdieri getting into the back seat. The Oldsmobile was followed by other FDEA agents, and they retrieved the marked envelope which was thrown from the automobile by D’Amato. Burdieri was dropped off shortly thereafter. At a meeting on February 23, again with the informant' present, McElroy asked Burdieri whether he had taken the money directly to his people on February 20; Burdieri responded in the affirmative.

At a meeting on March 26, Burdieri and McElroy negotiated relative to the purchase of more heroin. Burdieri said that “his people” usually dealt only in four of five kilo quantities of heroin but would sell a half kilo for $12,500 and replied affirmatively to a question by McElroy as to whether they were “the same people” who had furnished the February 20 heroin. They met, after several telephone calls and another meeting on the afternoon of March 27, once again on March 27 at 8:10 p. m., to consummate the purchase of a kilogram in their second transaction at a price of $28,000, Burdieri saying “I’ve got to meet my people at 9 o’clock” that evening. After McElroy gave him the money and drove Burdieri around for a while so that he could count it, Burdieri was dropped at 23rd Street and Second Avenue. He left and then took a taxi, under considerable observation, to 36th Street and Third Avenue, where he entered a coffee shop at the southwest corner. At this point, a 1972 blue Lincoln Continental, registered to Mrs. Abramo, which had been waiting down the block, pulled up slowly along 36th Street going east toward the coffee shop and stopped on the opposite side of 36th Street from the shop. Appellant Abramo was driving the Continental, with D’Amato as his passenger. At exactly nine o’clock Abramo and D’Amato got out of the automobile. Burdieri came out, joined them, and the three of them entered the automobile.

After pulling away from the curb, the Continental, followed by a veritable cavalcade of four or five surveillance vehicles, proceeded on a course and at such speeds as to warrant, if not compel, the inference that the surveillance had been detected and that an attempt was being made to escape from it. For example, the car squared two blocks in the mid-fifties, slowing down and speeding up, drove to the vicinity of Sutton Place, suddenly speeded up again and went by way of the East River Drive and Tribor-ough Bridge to Roosevelt Raceway where Burdieri was let out. The chase then assumed proportions of “The French Connection,” for while doing 75 miles per hour on the extreme left lane of the Meadowbrook Parkway towards Queens, a last-second swerve by Abramo across three lanes to the exit for the Long Island Expressway left all but one surveillance vehicle in the lurch. The occupants of that stout automobile observed the dropping off of D’Amato at a telephone booth in Queens, from which he walked 1.3 miles to his home. After twice squaring a three or four block area near the phone booth, Abramo returned his wife’s automobile to Manhattan. On March 29, Burdieri explained to McElroy that he had not returned with the package (of heroin) because “agents” had followed him to and during the meeting with “his people.”

A. D’Amato and, Zito. The sufficiency of the overall evidence against D’Amato and Zito, given the facts adduced at trial and condensed above, cannot be subject to serious doubt. The contention that the Government’s proof with respect to the February 20 transaction was fatally deficient in that Burdieri was not under surveillance for some 35 to 45 minutes, during which time he might have picked up the % kilogram of heroin from a source other than the Zito automobile, is not in the least persuasive. The inference apparently drawn by the jury was that Burdieri did in fact obtain the brown package from D’Amato and Zito, and that inference was clearly permitted by the evidence. The jury obviously chose to disbelieve D’Amato’s own version of these dealings to which he testified. Examining the record, we also conclude that independent evidence as to the February 20 transaction was sufficient, under the standards enunciated by this court, to permit the introduction of Burdieri’s statements through McElroy’s testimony as statements made by a co-conspirator in furtherance of the conspiracy. These statements were, of course, admitted subject to connection; the mere physical activities of both D’Amato and Zito, as well as the non-hearsay testimony of FDEA agents, establish by a fair preponderance that Burdieri, D’Amato and Zito were in fact coconspirators. United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969), cert. denied, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970). See United States v. Manfredi, 488 F.2d 588 at 596 (2d Cir. 1973). The question whether appellants were denied their sixth amendment rights of confrontation as a result of the admission of McElroy’s testimony as to Burdieri’s statements will be dealt with in Part II infra.

Appellant D’Amato’s contention that the evidence with respect to the substantive count was insufficient as a matter of law to convict him is frivolous.

B. Abramo. In Abramo’s case, the sufficiency of the evidence independent of Burdieri’s hearsay statements presents us with, a considerably more difficult decision. The independent evidence with respect to the March 27 transaction, viewed simplistically, shows only that after Burdieri had driven around in McElroy’s automobile, counting the money that McElroy had brought with him, between 8:10 p. m. and 8:50 p. m., Burdieri took a taxi to a coffee shop, which was approached by Abramo in his wife’s car and then on foot and from which Burdieri exited to join Abramo and D’Amato in Abramo’s automobile, the roundabout chase ensuing, with Abramo ultimately dropping off Burdieri and D’Amato.

We say “viewed simplistically,” because the foregoing represents an examination of the evidence without reference to any declaration of Burdieri whatsoever, and treats all of his declarations as inadmissible hearsay. Once we recall, however, that verbal acts — contemporaneous utterances explaining nonverbal conduct or its tenor — are not hearsay in the true sense, since they do not constitute an assertion to evidence the truth of a fact asserted, 6 Wigmore, Evidence § 1772, at 191 (3d ed. 1940), we can separate those declarations of Burdieri admissible for purposes of establishing the existence of a conspiracy for the sale of heroin and Abramo’s membership therein, from those inadmissible to show his membership. See United States v. Costello, 352 F.2d 848, 853-855 (2d Cir. 1965), rev’d on other grounds sub nom., Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); United States v. Annunziato, 293 F.2d 373, 376-377 (2d Cir.), cert. denied, 368 U.S. 919, 82 S.Ct. 240, 7 L.Ed.2d 134 (1961); Shapiro v. United States, 166 F.2d 240, 242 (2d Cir.), cert. denied, 334 U.S. 859, 68 S.Ct. 1533, 92 L.Ed. 1779 (1948); see also Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L.J. 229, 236 (1922).

Burdieri’s declarations that the price was $12,500 for one-half a kilo and $25,000 for a kilo help to explain his conduct in riding around in McElroy’s car counting the money before he left for 36th Street and Third Avenue, as relating to the very transaction at issue; they give that conduct legal significance and they accompanied it. See cases cited in 6 Wigmore, supra, § 1777, at 204 n. 9; Terry v. United States, 51 F.2d 49 (4th Cir. 1931). From the previous transaction in which D’Amato, Zito and Burdieri were involved, together with the verbal acts of Burdieri in the negotiations for the sale of heroin, it may fairly have been inferred that there was on March 27, 1973, a conspiracy the object of which was the sale of heroin. On this point, certainly the Government was entitled to prove that Burdieri and McElroy were engaged in a transaction involving the sale and purchase of heroin which Burdieri was to obtain from someone and/or some place other than at 23rd Street and Second Avenue. Thus considered, that portion of his utterances to McElroy limited to establishing that a sale of heroin was to take place that evening may be considered as an item of circumstantial evidence in determining whether the preponderance test was met as to Abramo’s membership in the conspiracy, even while Burdieri’s declaration that he was going to meet “his people” was for purposes of that determination inadmissible hearsay. Given the existence of a conspiracy to sell heroin in which Burdieri was a participant, we must try then, in measuring the role of Abramo, “to perform the intellectual feat of assessing the independent evidence free from the color shed upon it by the hearsay” [as to Abramo being one of Burdieri’s “people”]. United States v. Geaney, 417 F.2d at 1120. Assessing the evidence, we cannot say that it is insufficient to establish Abramo’s participation by a fair preponderance, once we draw reasonable inferences from it, as the jury was entitled to do.

From the circumstances it can be inferred that the March 27th meeting at the 36th Street and Third Avenue coffee shop between Burdieri — fresh from his $28,000 drive with Agent McElroy and well surveilled taxi drive up from 23rd Street and Second Avenue— and Abramo and D’Amato was not only prearranged but designed to permit counter-surveillance by them of anyone following Burdieri. These circumstances include the fact that Abramo drove slowly down 36th Street and stopped just as Burdieri came into sight, that Burdieri left the coffee shop when D’Amato and Abramo pulled up, and that D’Amato and Abramo left the car at exactly 9:00 p. m. That the meeting was prearranged pursuant to a plan to which Abramo was a party is evident. Whether thé plan was conspiratorial in nature, however, is another question. On balance we think that the jury may properly have been permitted to answer in the affirmative, drawing the inference first from the fact that the meeting was so arranged that Abramo and D’Amato could observe whether Burdieri was being followed by way of his going into the coffee shop first rather than waiting on the corner, and, second, from the evasive automobile action taken subsequently. One does not intentionally square blocks in mid-Manhattan traffic, stop and then accelerate .several times, swerve across three lanes at 75 m. p. h. to take an expressway exit and square large areas in Queens unless he is trying to determine whether he is being followed or, having ascertained that, trying to avoid being followed.

Abramo argues that he was merely attempting to “extricate” himself from “suspicious circumstances,” and that he therefore cannot be said to be a member of the conspiracy, relying on United States v. Kearse, 444 F.2d 62, 64 (2d Cir. 1971), and United States v. Eu-phemia, 261 F.2d 441 (2d Cir. 1958). But, absent Abramo’s participation in the conspiracy and knowledge of its object, what could have been the “suspicious circumstances” to which this argument refers? Rather than try to “extricate” himself, indeed it would seem that driving his own wife's car, coming to a prearranged meeting with Burdieri under the circumstances described, and leaving in his auto so as to attempt to avoid or evade surveillance would be consistent only with his membership. Had he innocently thought D’Amato and Burdieri to be involved in a narcotics or other suspicious transaction from which he wished to be disengaged, his conduct in giving them a ride together would hardly have occurred. In short, we believe that the independent evidence, coupled with the proof (through Burdieri’s verbal acts) of the existence of a conspiracy to sell heroin on March 27, is sufficient to establish Abramo’s participation in the conspiracy. Once this is true, of course, at least some of Bur-dieri’s statements, such as that he was going to meet “his people,” are evidence admissible inferentially against Abramo also.

II. THE CONFRONTATION QUESTIONS.

A. The Burdieri Statements. In this case, Burdieri was not even theoretically available as a witness for either the Government or the defendants. Appellants, relying on the court’s decision in United States v. Puco, 476 F.2d 1099, rehearing and petition for rehearing en banc denied, 476 F.2d 1106 (2d Cir. 1973), contend that Burdieri’s statements did not bear sufficient indicia of reliability to make them admissible. The Government counters that such a separate finding is either never required where the admitted testimony was in furtherance of a conspiracy, relying on the dissenting opinions in Puco, or, in the alternative, that the statements here did bear sufficient indicia of reliability to make them admissible.

It seems clear that virtually all of the extrajudicial statements of Burdieri were not only in furtherance of the conspiracy (of which he was indisputably a member) but were also against his own penal interest. As pointed out in the opinion of Judge Feinberg in the Puco panel’s denial of a rehearing, assessing the impact of Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), on the well-established coeonspirator exception to the hearsay rule is a straightforward task where, as here, the extrajudicial statements were decidedly against the penal interests of the speaker when made. United States v. Puco, 476 F.2d at 1107, citing United States v. Weber, 437 F.2d 327, 340 (3d Cir. 1970), cert. denied, 402 U.S. 932, 91 S.Ct. 1524, 28 L.Ed.2d 867 (1971).

B. The Paid Informant. Appellants contend that the court below abused its discretion in refusing to compel the Government to reveal the name of the paid informant who introduced McElroy to Burdieri and who was present at some meetings with them. A reading of the record convinces us, as it did the court below, that the assertion by appellants that this paid informant was “intricately involved in the transaction of this case,” Brief for Abramo at 35, is insupportable. The trial court also quite properly took into account the manner in which Burdieri himself met his demise, note 1 supra. Under United States v. Soles, 482 F.2d 105, 108-110 (2d Cir. 1973), we find no abuse of discretion. Appellants’ argument that the paid informant could have been called and, if called, might have east doubt on McElroy’s rendition of Burdieri’s statements is pure speculation. On the facts before the district court, there was no need that a hearing be held to probe into what the paid informant might or might not have testified to.

III. THE CLAUSTROPHOBIC JUROR.

After verdicts had been returned as to all appellants on all counts except with respect to Zito on count two, it was determined by the court that one of the jurors was unable to continue. The juror had in fact previously experienced some discomfort, and indeed had been sent to a hospital where the problem was diagnosed as an acute attack of claustrophobia. The court had, however, taken steps to alleviate the strain on the juror; and when the point was reached that the juror could not continue further, a full and most careful examination of that juror and the jury by the court, App. 735a-68a, made it abundantly clear that the claustrophobia had not “adversely affected the challenged juror’s ability to decide [the] case intelligently.” United States v. Silverman, 449 F.2d 1341, 1344 (2d Cir. 1971), cert. denied, 405 U.S. 918, 92 S.Ct. 943, 30 L.Ed.2d 788 (1972), at least with respect to the verdicts already returned. There was therefore no prejudice to any defendants on those counts. Appellant Zito argues on appeal, citing no authority, that the failure of the jury to return a verdict as to him on count two required dismissal of that count rather than a mistrial as directed by the court below. But appellant Abramo’s brief correctly states the law, which is that a new trial — following the declaration of a mistrial — is the appropriate outcome where a juror has been disqualified. See Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966); United States v. Rattenni, 480 F.2d 195 (2d Cir. 1973).

For reasons herein stated, the judgments with respect to appellants are affirmed.

      . Also charged as a coconspirator in the original indictment was Frank Burdieri, who, as will be seen, acted as a go-between in narcotics transactions that formed the basis of the Government’s case. Burdieri was arrested on April 9, 1973, almost two months prior to the arrest of appellant D’Amato and more than two months before the arrests of appellants Abramo and Zito. Burdieri disappeared some 10 days after his arrest and apparently his severely beaten body was found washed up on Silver Beach in the Bronx with one bullet in the back of his head.

      . Burdieri’s intent with respect to the meeting of March 27 is relevant to whether a general conspiracy involving narcotics existed as charged. The Supreme Court, in a broadly worded opinion by Mr. Justice Gray, stated:
      The existence of a particular intention in a certain person at a certain time being a material fact to be proved, evidence that he expressed that intention at that time is as direct evidence of the fact as his own testimony that he then had that intention would be. After his death there can hardly be any other way of proving it
      Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 295, 12 S.Ct. 909, 912, 36 L.Ed. 706 (1892). See also Insurance Co. v. Mosley, 75 U.S. (8 Wall.) 397, 404-405, 19 L.Ed. 437 (1869).

      . The Government argues that “The conspiracy charged here was one among Burdieri, D’Amato, Abramo and Zito to sell heroin generally, not only to sell it to McElroy.” Brief at 22 n.*. Under United States v. Geaney, supra, we are to look at all of the independent evidence, not just the independent evidence related to the allegedly aborted transaction of March 27. The Government urges not that there was any evidence to tie Abramo to the February 20 sale, the substantive charge having been dismissed as to Abramo, but that the February 20 transaction is independent evidence of Abramo’s participation in a general conspiracy because of the similarities in the modus operandi of the transactions of that date and March 27. The suggestion is that, since Zito supplied the automobile and was the driver at the February 20 “transaction,” then “Judge Cannella was entitled to infer that Abramo was not merely an innocent chauffeur.” Government Brief at 18. We need not decide whether the similarities between the two “transactions” were alone sufficient to create a fair preponderance of evidence to establish Abramo’s membership in the conspiracy in light of our decision above.

      . Appellants’ other contentions with respect to the admission of certain statements made by Burdieri are without merit. We agree with the trial judge, for example, that the “Vinnie Pappa” statement was clearly relevant, was not “brutally prejudicial,” and, again, was made in plain furtherance of the conspiracy.


author: MCWILLIAMS, Circuit Judge.

text:
    Theodore R. GOOCH et al., Plaintiffs-Appellants, v. SKELLY OIL COMPANY, a corporation, et al., Defendants-Appellees.
    Nos. 73-1095 through 73-1097.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Jan. 22,1974.
    Decided March 25, 1974.
    Rehearing Denied June 5, 1974.

      Robert T. Cornwell, Wichita, Kan. (Bernard E. Nordling, Leland E. Nor-dling, Hugoton, Kan., Dale M. Stucky and Richard I. Stephenson, Wichita, Kan., on the brief), for plaintiffs-appellants.
    Gerald Sawatzky, Wichita, Kan. (Elmer W. Adams, Sam Riggs, Jr., Paul D. Fielding, Jr., Sam C. Oliver, Tulsa, Okl.,' and of counsel, Foulston, Siefkin, Powers & Eberhardt, Wichita, Kan., on the brief), for defendants-appellees.
    Before BREITENSTEIN, McWIL-LIAMS and DOYLE, Circuit Judges.
   MCWILLIAMS, Circuit Judge.

The first matter to be resolved is whether we have jurisdiction to hear these consolidated appeals on their merits. We conclude that we do not, and the appeals must therefor be dismissed.

The appellees filed in this court a motion to dismiss based on the alleged failure of the appellants to file a timely notice of appeal in the trial court. We denied this motion without prejudice to the right of the appellees to renew the motion in their brief and at the time of oral argument on the merits. This the appellees have done. We are now convinced that the motion to dismiss is well taken and that these appeals must be dismissed.

Gooch and others brought an action against Skelly Oil Company and others seeking cancellation of certain oil and gas leases as well as damages for what was described as negligent and fraudulent oil and gas drainage by the defendants. Trial was to the court, sitting without a jury, and on September 25, 1972, the trial court entered formal judgment in favor of the defendants. The trial court generally found that the plaintiffs had failed to sustain their burden of proof and were entitled to no relief.

On October 5, 1972, the plaintiffs filed a motion to correct and alter the aforesaid judgment. This motion was not set for hearing and the trial court on October 25, 1972, more or less sua sponte, entered an order denying the motion to correct and alter judgment. As indicated, there was no court hearing, as such, on the motion to correct and alter judgment. However, the record of the trial court shows that copies of the order denying the motion to correct and alter judgment were mailed to all counsel on October 25, 1972.

Gooch and the other plaintiffs were represented by two attorneys, each being an attorney of record for the plaintiffs. One attorney was located in Hugoton, Kansas, and it is agreed that a day or so after October 25, 1972, he did in fact receive a copy of the trial court’s order denying the motion to correct and alter judgment. The second attorney, who was also “of record” as representing the plaintiffs, was located in Wichita, Kansas, and he did not receive a copy of the trial court’s order denying the motion to correct and alter judgment.

On December 12, 1972, the plaintiffs filed a motion for an order extending the time by thirty days within which a notice of appeal could be filed. In support of this motion was the affidavit of the Wichita attorney. In that affidavit it was represented that the affiant, i. e., the Wichita attorney, had not received any notice from the clerk and had not otherwise learned of the October 25 order till December 8, 1972. On that date, according to the affidavit, inquiry was made as to why the trial court had not ruled on the motion to correct and alter judgment and on that occasion the clerk of the court stated that the motion had in fact been denied on October 25, 1972. In this affidavit the Wichita attorney was said to be the “principal” attorney for the plaintiffs.

This motion to extend time was set for hearing on December 15, 1972, at which time the trial court, over objection from the defendants, granted the motion and found, in effect, if not in so many words, “excusable neglect.” Plaintiffs then filed their notices of appeal on December 21, 1972.

It is the appellees’ basic position that the trial court’s finding of excusable neglect is not supported by the record and that, on the contrary, the record shows no excusable neglect, as a matter of law. The extension of time within which to file the notice of appeal having been improperly granted, appellees argue that the present appeal must be dismissed for the failure of the plaintiffs to file their notice of appeal within thirty days immediately subsequent to October 25, 1972, the date when the motion to correct and alter judgment was denied, as required by Fed.R.App.P. 4(a). See also 28 U.S.C. § 2107. We agree with the appellees.

At the outset, we recognize that a trial court’s finding as to the presence or absence of “excusable neglect” as that term is used in Fed.R.App.P. 4 should not be overturned by us on appeal unless there has been a clear abuse of discretion. Buckley v. United States, 382 F.2d 611 (10th Cir. 1967), cert. denied, 390 U.S. 997, 88 S.Ct. 1202, 20 L.Ed.2d 97 (1968). However, in the instant case, we conclude that the record simply does not support a finding of excusable neglect, which is of course essential to any extension of time within which to file a notice of appeal. In so finding the trial court did thus abuse its discretion. In support of our resolution of the matter, we need not go outside our circuit for authorities, as we have on numerous prior occasions indicated that the thirty-day period for filing a notice of appeal in a civil case and the ten-day period in a criminal proceeding are not to be extended except on a real showing of excusable neglect. Let us examine the applicable rule and the Tenth Circuit eases bearing on this matter.

According to Fed.R.App.P. 4, a notice of appeal in a civil case shall be filed with the clerk of the district court within thirty days of the date of the entry of the judgment or order appealed from, and that rule further provides that where a motion to amend judgment has been filed pursuant to Fed.R.Civ.P. 52(b), the thirty-day period commences to run when the motion to amend is either granted or denied. A court of appeals acquires jurisdiction of an appeal only upon the filing of a timely notice of appeal and this requirement is mandatory and jurisdictional. Lathrop v. Oklahoma City Housing Authority, 438 F. 2d 914 (10th Cir. 1971), cert. denied, 404 U.S. 840, 92 S.Ct. 132, 30 L.Ed.2d 73 (1971), and Maryland Casualty Company v. Conner, 382 F.2d 13 (10th Cir 1967).

This same rule, i. e., Fed.R.App.P. 4, also provides that the district court may extend the time for filing the notice of appeal for a period not to exceed thirty days “upon a showing of excusable neglect,” with the proviso that the extension may be granted either before or after the expiration of the initial thirty-day period. The term “excusable neglect” is not defined in the rule, and we have heretofore stated that whether neglect is excusable depends on the facts of the case at hand and that the question should be determined on the basis of the “common-sense meaning of the two simple words applied to the facts which are developed.” Buckley v. United States, supra.

In Buckley, which was a criminal case where the defendant had been sentenced to five years’ imprisonment and fined $5,000 the defendant’s counsel was two days late in filing a notice of appeal. The Government then moved to dismiss the untimely notice of, appeal; whereupon the defendant filed a motion to extend the time for filing notice of appeal. In support of this latter motion, one of defendant’s counsel filed an affidavit in which he stated that he had not received a notice from the clerk that his motion for a new trial had been denied and that because of the press of other business he had not checked into the matter before the ten-day period had expired. The trial court held in Buckley that this was an insufficient showing of excusable neglect, and we affirmed on appeal. In affirming, we stated that counsel’s claim of neglect caused by his waiting for a notice from the clerk which never came “is not a basis for a plea of excusable neglect.” So, in Buckley, the fact that counsel of record in a criminal case who was responsible for the filing of the notice of appeal had not himself received notice from the clerk that his motion for new trial had been denied did not obligate the trial court to find excusable neglect and on appeal we indeed indicated such fact was not in and of itself sufficient to make out a case of “excusable neglect.”

In Lathrop v. Oklahoma City Housing Authority, supra, the clerk apparently failed to mail counsel of record a copy of the trial court’s order denying timely filed post-trial motions. After the thirty-day period for filing a notice of appeal had expired, counsel first became aware that his post-trial motion had been denied, and he promptly sought to file, out of time, a notice of appeal. In dismissing the appeal because of the untimely filing of the notice of appeal, we noted that Fed.R.Civ.P. 77(d) specifically provides that lack of notice of the entry by the clerk does not affect the time to appeal or relieve a party for failure to appeal within the time allowed, except as permitted by Fed.R.App.P. 4(a). In that case, we then went on to observe that Rule 77(d) charges a prospective appellant with the duty of following the progress of the action and advising himself as to when the court makes an order which he wishes to appeal.

A similar situation was involved in Long v. Emery, 383 F.2d 392 (10th Cir. 1967). There, counsel for the would-be appellant did not receive notice from the clerk that the post-trial motions had been denied, though he did know that a hearing was to be held on the post-trial motions. The trial court there refused to grant an extension of time to file the notice of appeal and we affirmed on appeal. In affirming, we stated that the fact that counsel did not receive notice from the clerk that post-trial motions had been denied was but one of many factors to be considered in determining whether there has been excusable neglect. In this connection, we noted that the Advisory Committee on Rules had stated that the time for appeal need not be extended merely because the clerk’s notice was not sent or received. We also observed that Rule 77(d), as amended, charges a prospective appellant with the duty to keep himself apprised as to the status of his case.

Perhaps Cohen v. Plateau Natural Gas Company, 303 F.2d 273 (10th Cir. 1962), comes closest to the facts of the present case. There, “local” counsel received notice from the clerk of the date of judgment. However, the would-be appellant’s “chief” counsel in New York City did not receive such notice. Chief counsel, after the initial thirty days had expired, filed a motion to extend the time for filing of a notice of appeal and urged as grounds therefor the fact that he, as chief counsel, had not received notice of the entry of judgment. The trial court granted this motion for an extension of time, ex parte. On appeal, we reversed on the grounds that under the applicable rule the hearing on the motion to extend the time for the filing of a notice of appeal, having been filed beyond the thirty-day period, could only be held on notice, and not ex parte. In so holding, we added, by way of dictum, that “it is extremely doubtful whether, as a matter of law, the ‘excusable neglect’ contemplated by Rule 73(a) was present.” So, in the instant ease, as in Cohen, “principal” or “chief” counsel did not receive notice from the clerk, though other counsel of record did. And in Cohen we indicated that “chief” counsel had not made out a case of excusable neglect simply because he himself had not received notice from the clerk.

Application of these principles to the present factual situation leads inescapably to the conclusion that the trial court erred in granting Gooch’s motion to extend the time within which he could file his notice of appeal. From the cases above referred to, we learn that even where the only counsel of record in a case did not receive notice from the clerk of action taken by the trial court, such fact did not obligate a trial court to find excusable neglect. Additionally, there is at least a suggestion in such cases as Buckley and Long that the mere fact that counsel of record did not receive notice from the clerk is not, standing alone, sufficient to support a finding of excusable neglect.

Be that as it may, the instant case is different in that it is admitted that one out of two counsel of record did receive notice that the trial court had denied Gooch’s motion to correct and alter judgment, which in our view weakens even further a claim of excusable neglect. The argument that the Wichita attorney was “principal” counsel and that he did not receive notice from the clerk is not persuasive. Indeed, we believe our resolution of the present matter was forecast by our decision in Cohen, where “local” counsel received notice, but “chief” counsel did not. In Cohen, we indicated that the fact that “chief” counsel had not received notice from the clerk did not, as a matter of law, make out a case of excusable neglect. Our indication in Cohen becomes our holding in the present case.

In sum, the record does not support a finding of excusable neglect. The time for taking an appeal should not be extended in the absence of circumstances that are “unique or extraordinary.” Maryland Casualty Company v. Conner, supra. The present record does not in our view disclose circumstances that are either unique or extraordinary, only run-of-the-mill oversight growing out of a lack of communication between co-counsel, each of whom was counsel of record.

Appeal dismissed.

      . Buckley was concerned with Fed.R.Crim.P. 37 (a) (2), which now appears, in substance, as Fed.R.App.P. 4(b).

      . Cohen was concerned with Fed.ft.Civ.P. 78(a), which now appears, in substance, as Fed.R. App.P. 4(a).


author: JAMES HUNTER, III, Circuit Judge: ADAMS, Circuit Judge

text:
    ERIE HUMAN RELATIONS COMMISSION et al., Appellees, v. Hon. Louis J. TULLIO, Mayor of the City of Erie, et al., Appellants.
    No. 73-1707.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 7, 1974.
    Decided March 4, 1974.
    See also, D.C., 360 F.Supp. 628.

      Lawrence L. Kinter, Erie, Pa., for appellants.
    Norman J. Watkins, Deputy Atty. Gen., Harrisburg, Pa., argued for the appellees.
    Michael Louik, Robert P. Vogel, Asst. Attys. Gen., Israel Packel, Atty. Gen., for Commonwealth of Pennsylvania as ami-cus curiae.
    Henry W. Sawyer, III, Amy F. Davis, Philadelphia, Pa., for amicus curiae American Civil Liberties Union.
    Before ADAMS, HUNTER and WEIS, Circuit Judges.
   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This is an appeal in an action brought by the Erie Human Relations Commission and four individual blacks in which it was alleged that the hiring procedures used to staff the Erie, Pennsylvania Police Department discriminate against blacks, in violation of the Civil Rights Act, 42 U.S.C. §§ 1981, 1983 (1970), and the equal protection clause. The district court found in favor of the plaintiffs on the merits and ordered the imposition of a limited racial hiring quota. The appellants, various officials of the City of Erie, do not appeal the finding of discrimination, but they do challenge the propriety of this relief. In addition, they contend that the plaintiff Erie Human Relations Commission lacks standing to sue. We agree with the appellants on the standing issue but conclude that their attack on the district court’s affirmative order lacks merit.

This suit was filed on March 22, 1973 and was accompanied by a Motion for a Temporary Restraining Order that sought, inter alia, to enjoin the defendants from administering a police civil service “mental” examination scheduled to be given on March 24, 1973. The motion was granted and a Temporary Restraining Order was issued on March 23, 1973.

The parties thereupon entered into negotiations that resulted in a stipulation which permitted the City to proceed with the mental examination on April 21, 1973. In return, the defendants agreed to make numerous changes in the requirements that must be met in order to be eligible to take the police mental examination (these preliminary requirements are hereinafter referred to as “pre-exam requirements”). In addition, the City agreed that:

“[u]pon verification by the federal Equal Employment Opportunity Commission that there exists a mental examination for applicants for the position of police officer, which has been validated both as to job-relatedness and to the exclusion of cultural bias, the Civil Service Board will substitute that examination for the one presently in use.”

Finally, the parties agreed to submit to the district court the question of what affirmative relief, if any, should be granted with respect to the hiring of black police officers.

In considering the question of affirmative relief, the district court adopted as its findings the factual assertions that were made a part of the stipulation. As a result, the record upon which the judgment is based contains the following agreed upon facts:

“1) The Erie Police Department (hereinafter “E.P.D.”) presently consists of 214 officers, 3 of whom are black.
“2) During the period 1962-1972, 2 black officers were hired as police officers for the E.P.D.
“3) During the period 1952-1972, 7 black officers were hired as police officers for the E.P.D.
“4) 6.8% of the residents of the City of Erie, Pennsylvania (hereinafter “City”) are black.
“5) 1.4% of the officers of the E.P.D. are black.
* * -X- # -X- *
“7) Any discrimination based upon the above-mentioned disparity and statistics is not the result of any intentional discrimination on the part of the City or any of the named defendants.
•3f *X*
“12) The mental examination given to applicants is, and has been validated, as job-related.
“13) The mental examination given to applicants has not been validated with respect to cultural bias which may or may not exist in said examination.
* * * -x- *

The district court determined that these facts established “as a matter of law that a pattern of racial discrimination has existed for a considerable period of time in the selection of officers of the Police Department of the City of Erie.”

The court went on to conclude that, since the changes in the pre-exam requirements provided only a partial cure for this pattern of discrimination, affirmative relief was necessary. It therefore imposed a special racial quota upon the hiring procedures to be employed in filling the 20 positions presently open on the police force. The court’s order reads as follows:

“. . . Defendants shall, in filling the next twenty positions . . . nominate to the appointing authority a sufficient number of candidates of the black race from the existing eligibility lists prepared pursuant to examinations administered in April 1973 to provide for the appointment of one black race candidate for every candidate of the white race so appointed until not less than ten black candidates have been so appointed unless the list of eligible black candidates is sooner exhausted. . . . ”

The appellants raise two contentions with regard to the propriety of this order. Their first claim is that a racial hiring quota can only be ordered by a court if the facts of the case establish either 1) that there is a history of intentional racial discrimination or 2) that the testing and other pre-hiring procedures which exclude minority group members are not job-related. In the present case, they argue, the facts do not establish either of these conditions (and in fact establish the opposite). As a result, they conclude that the racial hiring quota that was ordered is impermissible.

This contention is faulty in two respects. First, even if we were to agree that racial quotas are barred in situations where there is no intentional discrimination and where the pre-hiring procedures are job-related, this rule would have no application here. The appellants contend that the stipulation establishes job-relatedness when it states that “[t]he mental examination . . . has been validated as, job-related.” However, since the “mental examination” is only one part of the City’s pre-hiring procedure, this statement by itself cannot fully establish that all of the criteria used "to evaluate those interested in becoming police officers were job-related. In fact, the stipulation (which constitutes all findings of facts in the case) is entirely silent on whether the various “pre-exam requirements,” in effect when they created the pool of applicants who took the April 21, 1973 mental examination, were job-related.

The absence of findings on this question is fatal to the appellants’ claim. Since the appellees’ evidence clearly established a prima facie case of discrimination, the burden shifted to the appellants to justify their pre-hiring procedures in order to avoid a finding of discrimination. Educational Equality League v. Tate, 472 F.2d 612, 616 (3d Cir. 1973); Bridgeport Guardians, Inc. v. Civil Service Comm’n, 482 F.2d 1333, 1337 (2d Cir. 1973); Castro v. Beecher, 459 F.2d 725, 732 (1st Cir. 1972).

We do not believe that the appellants’ burden of proof is any lighter here where they concede that discrimination exists (as they do in this appeal) but seek to invoke the job-relatedness of their prehiring procedures to avoid the imposition of a particular equitable remedy. Thus, since the record is silent on whether the pre-exam requirements used are job-related, the appellants have failed to establish a necessary element of their own rule, and they cannot invoke it to avoid imposition of the racial quota ordered by the district court.

Moreover, we believe that this contention is faulty in a second and more basic respect as well. The rule they seek to establish would, in effect, limit, as a matter of law a district court’s discretion in formulating equitable relief. We believe that such a per se limitation would be unwise absent a compelling demonstration of its necessity. As the Supreme Court has said:

“The framing of decrees should take place in the District rather than in the Appellate Courts. They are invested with large discretion to model their judgments to fit the exigencies of the particular case.” Int’l Salt Co. v. United States, 332 U.S. 392, 400-411, 68 S.Ct. 12, 17, 92 L.Ed. 20 (1947).

We do not feel such a compelling demonstration has been made here, and indeed believe that the arguments against appellants’ proposed rule predominate. Since many factors must go into a district court’s judgment as to the form of equitable relief, a rule that would make two factors — intent and job-relatedness— determinative would appear to limit the district court in a rather arbitrary way. We do not believe this is desirable. On the contrary, preservation of the court’s flexibility in the framing of remedies would seem to be particularly important in racial discrimination cases since they often require the district court to tailor its order to meet the needs of a highly complex and emotionally charged factual situation. As a result, we must reject the appellants’ first claim on this basis as well.

Appellants’ second contention with regard to the affirmative relief ordered is that the one black for one white (or 50%) ratio imposed is too high and constitutes an abuse of discretion by the district court. We reject this contention as well. The ratio here established is entirely reasonable when viewed within the context of the facts of the case and the limited scope of the total order. The quota imposed can only affect the next 20 positions filled, and will affect those positions only if 10 qualified blacks are available for appointment. Moreover, even if all 10 “black” positions are filled, it will only bring the percentage of blacks on the force up to 5.5%, a figure still somewhat below their 6.8% representation in the total population of Erie.

Finally, we note that the quota was designed to take advantage of the unique opportunity presented by the creation of 20 new police positions through a special state grant. We cannot say that the district court abused its discretion in using this grant as a vehicle to expedite the removal of the effects of the discrimination found here. Indeed, given the sensitive and highly visible role played by the police in maintaining racial peace and harmony, we feel that we should commend the district court since its order acts decisively and yet at the same time is carefully limited so that its adverse impact on others is minimized. Imposition of a 50% quota limited to the next 20 positions is not reversible error in these circumstances.

Appellants’ last contention— that the district court erred in refusing to dismiss the Erie Human Relations Commission as a plaintiff for lack of standing — is meritorious. As the recent discussion of the subject by this court in Schiaffo v. Helstoski, 492 F.2d 413 (3d Cir., filed Jan. 4, 1974) makes clear, to have standing a party must allege, at a minimum, a personal stake in the outcome of the action. In this case, the Erie Human Relations Commission has made no such allegation either for itself as a body or for its individual members. Instead, it seeks to bring this suit in its own name but on behalf of what it terms its “black clientele.” Brief for Appellees at 5. This is improper. A party with no personal stake in the outcome of a case cannot establish standing to sue in federal court by alleging a concern for the rights of others, even if it is a body created by local ordinance for the express purpose of protecting those rights.

The order of the district court will be remanded with directions that it dismiss the Erie Human Relations Commission as a party plaintiff. In all other respects the order of the district court will be affirmed.

ADAMS, Circuit Judge

(concurring):

Inasmuch as there was a finding of racial discrimination in the selection of police officers by public officials in Erie and the district court restricted the mandated hiring procedure to persons qualified to act as police officers, I agree with the majority that the district court did not abuse its equitable discretion in ordering the city officials to hire one black person for any white person hired until the twenty new police positions created by a specially financed program are filled.

However, I would reverse the district court’s failure to dismiss the Erie Human Relations Commission as a party for a different reason than that set forth by the majority. Rule 17 (b) of the Federal Rules of Civil Procedure provides, in part, that “[t]he capacity of a corporation to sue . . . shall be determined by the law under which it was organized” and that “[i]n all other cases capacity to sue . . . shall be determined by the law of the state in which the district court is held, except . . . that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue ... in its common name for the purpose of enforcing ... a substantive right existing under the Constitution or laws of the United States. if

Before dealing with the intricate matrix of rules relating to the standing of representative plaintiffs, it would seem appropriate to inquire whether the Commission has the capacity, pursuant to “the law under which it was organized,” to bring this suit. For if the Commission is without such capacity, the need to determine its standing to sue is foreclosed,

The Commission was established by city ordinance, and the enforcement section of the ordinance does not authorize the Commission to bring suit, but rather to refer the initiation of suit to the City Solicitor. *If, however, a city agency like the Commission is to be treated like “a partnership or other unincorporated association” for the purposes of Rule 17(b), the absence of statutory authorization would not be dispositive. It would appear from the background of Rule 17(b) that the relaxation of the requirement that an organization have “capacity [under state law] to sue” was designed to permit private entities that are well-established representatives of groups of people with common social and economic concerns to sue or be sued. There is no indication that Rule 17(b) was intended to diminish a city’s power to control, in furtherance of municipal policy, resort to the courts by its subdivisions and agencies, ****as distinguished from permitting a city to designate its Solicitor to bring such suits.

I would, therefore, reverse the district court’s failure to dismiss the Erie Human Relations Commission without reaching the question of the Commission’s standing to sue as a representative plaintiff.

Since individuals alleging that discrimination impairs their ability to secure positions with the Erie Police Department have joined with the Commission as individual plaintiffs in this action, dismissal of the Commission as a party would not affect the substantive outcome of this appeal.

      . The changes were designed to eliminate allegedly discriminatory effects.

      . We note that the defendants also agreed to reduce the minimum passing rate on the mental examination from 70% to 60%. Stipulation, If 9.

      . These 20 additional positions were apparently made possible by virtue of a special state grant. See Erie Human Relations Commission v. Tullio, 360 F.Supp. 628 (W.D.Pa., filed July 12, 1973).

      . “[A] prima facie case is established by a demonstration that blacks were under-represented and that there was an opportunity for racial discrimination.” Educational Equality League v. Tate, 472 F.2d 612, 618 (3d Cir. 1973) ; Smith v. Yeager, 465 F.2d 272, 279 (3d Cir. 1972), cert. denied 409 U.S. 1076, 93 S.Ct. 685, 34 L.Ed.2d 665 (1972). In this case under-representation was established by the disparity between the percentage of blacks on the force and the percentage of blacks in Erie’s total population. The opportunity for discrimination was created by the necessity for making subjective judgments in applying several of the pre-exam requirements that were amended by the stipulation.

      . We note in passing that the “pre-exam requirements” which were used to select the pool of applicants who took the April, 1973 examination have now been substantially altered by agreement of the parties. Thus, while there are no findings of fact on this point, common sense would suggest that they were altered because they had a discriminatory effect, and that therefore they were not, in fact, job-related. However, this line Of reasoning involves a series of inferences based on evidences in the record. Since this process is more properly performed by the district court, we do not rely upon it as the basis for our decision.

      . In this latter respect, the present order differs significantly from the order reviewed in Commonwealth of Pennsylvania v. O’Neill, 473 F.2d 1029 (3d Cir. 1973) (aff’d by an evenly divided court en lane). Since in this case the order clearly requires that all blacks appointed under the quota be qualified, the most serious concern of the dissenting judges in O’HTeill is not present here.

      . Before concluding our discussion of the claims raised with regard to the relief ordered, we should note that while constitutional objections to the imposition of remedial quotas based on race have been raised in other cases, see, e. g., Porcelli v. Titus, 431 F.2d 1254 (3d Cir. 1970); Bridgeport Guardians, Inc. v. Civil Service Comm’n, 482 F.2d 1333 (2d Cir. 1973); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1972) (en banc) ; DeFunis v. Odegaard, 82 Wash.2d 11, 507 P.2d 1169 (1973), cert. granted, 414 U.S. 1038, 94 S.Ct. 538, 38 L.Ed.2d 329 (1973), no such contention appears to be raised here. However, even if it could be argued that constitutional contentions are implicit in the appellants’ brief, the bulk of the cases that have dealt with these considerations both in this circuit, Porcelli v. Titus, supra; Contractors Ass’n v. Secretary of Labor, 442 F.2d 159 (3d Cir. 1971); Commonwealth of Pennsylvania v. Sebastian, 368 F.Supp. 854 (W.D.Pa., filed Dec. 1, 1972) (unreported), aff’d by judgment order, 480 F.2d 917 (3d Cir. filed June 7, 1973), and elsewhere, see, e. g., Bridgeport Guardians, Inc. v. Civil Service Comm’n, supra; Carter v. Gallagher, supra; DeFunis v. Odegaard, supra, have upheld the constitutionality of the use of quotas to eliminate the effects of discrimination. Since the disparity between blacks on the police force (1.4%) and blacks in Erie (6.8%) indicates that serious discriminatory effects are present here, this precedent would appear to be controlling on the question in any event.

      . At the same time, we reject the appellees’ contention that the issue is moot. Since the affirmative relief ordered by the court has not yet been put into effect, the right of the Erie Human Relations Commission to compel proper implementation in a future proceeding before the district court turns on a determination of this issue.

      . 151.09 Enforcement
      (a) On and after September 1, 1963, m the event any person refuses or fails to comply with any cease and desist order issued by the Commission, for a period of ten days from the service of the order by registered mail or personally, the Commission shall certify the case and the entire record of its proceedings to the City Solicitor who shall invoke the aid of an appropriate court to impose the penalties provided in Section 151.99 and by appropriate action secure enforcement of the order.
      (b) Whenever the Commission finds that any official, agent or employee of the city, or any contractor or subcontractor doing work for the city, has engaged in any discriminatory practice, it shall make a report thereof to the Mayor and Council.

      . See United Mine Workers v. Coronado, 259 U.S. 344, 385-392, 42 S.Ct. 570, 66 L.Ed. 975; Hart & Wechsler, The Federal Courts and the Federal System 1123-24 (2d ed. 1973).

      . Cf. Gates v. Council of City of Huntington, 93 F.Supp. 757 (S.D.W.Va.1950).