author: GARTH, Circuit Judge.

text:
    Henry THORNTON et al., Appellees, v. UNITED STATES of America, and Alfred L. Whinston, District Director of Internal Revenue, Appellants.
    No. 73-1422.
    United States Corut of Appeals, Third Circuit.
    Submitted Dec. 14, 1973.
    Decided Feb. 20, 1974.
    Robert M. Taylor, Abraham J. Brem Levy, Philadelphia, Pa., for appellees.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Richard W. Perkins, Dennis M. Donohue, Ernest J. Brown, Tax Div., Dept, of Justice, Washington, D. C., Robert E. J. Curran, U. S. Atty., Philadelphia, Pa., for appellants.
    Before . FORMAN, HUNTER and GARTH, Circuit Judges.
   OPINION OF THE COURT

GARTH, Circuit Judge.

The defendants appeal from an order of the District Court dated January 19, 1973 which granted the taxpayers’ motion to enjoin certain jeopardy assessments and which ordered the return of certain properties and monies seized by the defendants pursuant to those assessments. Jurisdiction is based on 28 U.S. C. § 1291. A detailing of the procedural history is necessary to understand our disposition of this appeal.

I.

On June 21 and 22, 1972, the District Director of Internal Revenue made certain jeopardy assessments against the plaintiffs Henry and Ernestine Thornton and two corporations, managed, operated and owned by Henry Thornton. The plaintiffs thereupon on June 27, 1972 filed a Complaint, and a Motion for a “Restraining Order and Preliminary Injunction”. The Complaint inter alia alleged that the actions of the District Director — in making the assessments and the levies and in seizing certain property — were taken in bad faith to harass the plaintiffs; were unlawful, illegal and violated the plaintiffs’ constitutional and statutory rights; and exceeded the authority of the Director. Furthermore, plaintiffs claimed that the statute under which the Director acted was unconstitutional. Injunctive relief was sought, as well as the return of the liquor licenses, the voiding of the assessments and levies, and a declaration that plaintiffs had no liability to the defendants.

On the same day that the Complaint and the Motion for Preliminary Injunction were filed, an informal agreement was executed by the parties, which provided for the return of the two liquor licenses upon the delivery by plaintiffs to the defendants of a $2,500 bond. The bond was furnished on July 7, 1972.

On August 10, 1972 the plaintiffs moved to “Stay Levy and Sale on and of Plaintiff’s Assets and for Obtaining Defendant’s Computations of Alleged Deficiencies”. That motion was made returnable on September 19, 1972. No testimony, affidavits or other evidence was produced at the hearing, at which only oral arguments were made. Subsequent to the hearing the plaintiffs filed a brief (on October 22, 1972) which included a statement that the jeopardy assessments were not personally made by the District Director of Internal Revenue, but were rather made by a subordinate.

On January 19, 1973 (filed January 22, 1973) the District Court entered its memorandum and order which (1) granted the plaintiffs’ motion for a permanent injunction to enjoin the jeopardy assessments of June 11 [sic] 1972 and June 22, 1972, and (2) ordered that any monies, property or other funds taken by the Government be returned to the plaintiffs, and (3) ordered that the defendants’ motion for a declaratory judgment on the merits of the case be denied.

Implicit in the Court’s opinion which held the assessments to be illegal was a finding that they were not personally made by the District Director of Internal Revenue, Alfred L. Whinston, but rather were authorized by a Group Chief. Relying solely on this ground, the Court invalidated the jeopardy assessments.

On January 29, 1973 the defendants moved to vacate the Court’s order of January 19, 1973 and sought a rehearing. In support of this motion the defendants submitted an affidavit to support their contentions that the assessments were legally authorized.

On February 14, 1973 the defendants’ motion to vacate the January 19, 1973 order, and for rehearing, was denied. This appeal taken from the January 19, 1973 order (which granted plaintiffs’ motion for permanent injunction against the defendants) then followed.

II.

§ 7421(a) of the Internal Revenue Code of 1954 provides, (with certain provisions not relevant here) that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” Exceptions to this express prohibition have been allowed only in limited areas and for extraordinary circumstances. Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1961); Iannelli v. Long, 487 F.2d 317 (3d Cir., 1973); Sherman v. Nash, 488 F.2d 1081 (3d Cir., 1973). The taxpayer has the burden of proof to show that he falls within the exceptions of the § 7421 prohibition against suits. See Enochs v. Williams Packing & Navigation Co., supra; Transport Manufacturing and Equipment Co. of Del. v. Trainer, 382 F.2d 793 (8th Cir. 1967).

Procedurally, all that was before the District Court when the permanent injunction issued was plaintiffs’ motion limited by its terms to “Stay Levy and Sale” and to obtain “Defendant’s [sic] Computations of Alleged Deficiencies.” We cannot ascertain whether or not the District Court considered in conjunction with that motion, the pleadings entitled “Motion for Restraining Order and Preliminary Injunction” filed with the Complaint on June 27, 1972. It is evident from its opinion, however, that the District Court having found that the District Director had not personally approved the assessments and that hence they were unauthorized, then and there determined that the entire litigation should be disposed of solely on that ground and by its final order.

In any event, prior to October 22, 1972 (the date plaintiffs filed their brief, which was some 30 days after the oral argument) no issue respecting improper authorization of the assessments had been raised. Neither the Complaint nor any other pleading contained any such allegation. Not even in the oral argument of September 19, 1972 did the taxpayers suggest that the assessments were improper because they' were not personally made by the District Director. It was not until October 22, 1972 when the plaintiffs filed their only brief (post-hearing), that for the first time the plaintiffs raised the issue which triggered the Court’s opinion and order of January 19, 1973. Through a hearsay non-sworn statement, plaintiffs asserted in their brief:

“The Internal Revenue Service, through its Revenue Officers and Group Chief, Mr. Thomas Meehan, admitted to Plaintiffs’ counsel .
‘That the said jeopardy assessments were not personally made by the District Director, Alfred L. Whinston, who was away on leave from his office, and that the jeopardy assessments were made by a subordinate employee of the Internal Revenue Service.’ ” (emphasis supplied)

Notwithstanding the lack of evidentiary underpinning, the District Court held that the assessments were illegal. The difficulty with the District Court’s reasoning and holding is that there is no evidence in the record to support such a finding. Not only had the taxpayers failed to meet their burden of showing lack of authorization (or any other matter sufficient to bring them within the rare exceptions to § 7421), but they had totally failed to produce any evidence whatsoever which would require a countershowing by defendants. A statement in a brief or in oral argument does not constitute evidence. See United States v. Howard, 360 F.2d 373, 376 fn. 4 (3d Cir. 1966); Slaughter v. Philadelphia National Bank, 417 F.2d 21, 32 fn. 20 (3d Cir. 1969); Shock v. Tester, 405 F.2d 852 (8th Cir. 1969).

Findings of fact are to be made upon evidence, and are not to be set aside unless clearly erroneous. F.R.Civ. P. 52(a), Krasnov v. Dinan, 465 F.2d 1298 (3d Cir. 1972). The District Court’s finding that the assessments were unauthorized is wholly without an evidential basis and is clearly erroneous.

The January 19, 1973 order of the District Court will be vacated and the cause remanded to that Court for further proceedings not inconsistent with this opinion.

      . Mickey’s Bar, Inc. and New Checkers Cafe, Inc.

      . Included in the property seized, were the liquor licenses under which Mickey’s Bar, Inc. and New Checkers Cafe, Inc. operated.

      . We mention this “transaction” because the return of the liquor licenses was an important aspect of relief sought in the Motion for Preliminary Injunction. We can only surmise that the reason the motion was not pressed and hence not scheduled was that the licenses were relinquished by the posting of a bond.

      . Although the motion as indicated was directed only to a stay of levy and sale and for computations of alleged deficiencies, the memorandum filed by the plaintiffs on October 22, 1972 stated that it was “in support of Plaintiffs’ Action to have the Court Order and Direct the Defendants to abate the jeopardy assessments and release the liens made against the Plaintiffs . . . and to rescind and withdraw any and all levies and seizures made and issued against said Plaintiffs’ assets either in their hands or in the hands of third parties, and to return to said Plaintiffs any and all of their assets seized by Defendants.”

      . The record reveals no motion made by either party for a declaratory judgment. We would assume, however, from the context of the Court’s order and from its opinion that the Court had reference to plaintiffs rather than to defendants with respect to this “motion”.

      . The affidavit was executed by James T. Rideoutte the Assistant District Director of Internal Revenue in Philadelphia. It stated that from June 16, 1972 through July 21, 1972 the District Director [Whinston] was absent from his office; that Whinston had designated Rideoutte to act as District Director; and that during the period from June 16, 1972 through July 21, 1972 Ride-outte had accordingly approved jeopardy assessments against the plaintiffs. A memorandum of Alfred L. Whinston was attached to the affidavit supporting the designation of Rideoutte as Acting District Director and providing that “correspondence and documents requiring the personal signature of the Director should be prepared for the signature of the Acting Distridt Director. If

      . 26 U.S.C. § 7421(a).

      . 26 U.S.C. § 6861 provides:
      “(a) Authority for making.' — If the Secretary or his delegate believes that the assessment or collection of a deficiency, as defined in section 6211, will be jeopardized by delay, he shall, notwithstanding the provisions of section 6213(a), immediately assess such deficiency (together with all interest, additional amounts, and additions to the tax provided for by law), and notice and demand shall be made by the Secretary of his delegate for the payment thereof.”
      The District Court construed this statute and Rev.Proc. 60-4, 1960 1 Cum.Bull. 877 as requiring personal approval by the District Director of Internal Revenue stating in its opinion:
      “ . . . Nowhere in the procedure, regulations or statutory law is there any interpretation that allows the delegate to delegate his power to authorize a jeopardy assessment.” !
      We do not reach this question as our disposition of this appeal rests on other grounds. However, since further proceedings before the District Court will be necessary, at which time we would expect that the defendants’ proof regarding Rideoutte’s status as an Acting Director (see fn. 6 supra) would be considered, we call attention to 26 U.S.C. § 7701(a) (12) “Definitions” “Delegate”; and Rev.Reg. § 301.7701-9(a)-(d) which shed additional light on this subject. In this connection we note that an Acting Assistant Director is a “delegate” within the meaning of 26 U.S.C. § 6861.

      . The defendants’ brief dealing solely with jurisdictional issues was filed four days before the September 19, 1972 hearing. The record of the September 19 hearing reveals the following colloquy between Mr. Levy (attorney for the plaintiffs) and the Court. This colloquy, in addition to setting a time for the filing of plaintiffs’ brief also indicates that the District Court at that time was not thinking of final disposition of the merits:
      “The Court: Mr. Levy, since you have not had an opportunity to answer the brief of the Government, how much time do you need to do that?
      Mr. Levy : 10 days.
      The Court: I think, frankly, we must do that before we go into the merits of the case.” (emphasis supplied)

      . Transport Manufacturing and Equipment Co. of Del. v. Trainer, supra.

      . As the procedural history reveals, the defendants had no knowledge of the “unauthorized assessment” issue when their brief was submitted, or at the time of the September 19, 1972 oral argument. Hence, at no time did the defendants ever have the opportunity to introduce proofs respecting this issue. Even had there been an opportunity afforded to the defendants to “ . counter the argument that the assessment was made illegally . . .’’as the District Court held, in the absence of any affirmative evidential showing by the plaintiffs, the defendants had no obligation to come forward with proofs.
      When for the first time it became evident to the defendants that the District Court was relying on the plaintiffs’ representations concerning “unauthorized assessments”, a motion for rehearing was filed supported by affidavit (see fn. 6 supra). This motion was answered by the plaintiffs, but again without affidavits or evidence. The defendants’ motion was denied without hearing on February 14, 1973.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jose RODRIGUEZ-HERNANDEZ, Defendant-Appellant.
    No. 73-2750.
    United States Court of Appeals, Fifth Circuit.
    April 24, 1974.
    Rehearing Denied May 15, 1974.

      Robert L. Stone, Pensacola, Fla. (Court-appointed), for defendant-appellant.
    William H. Stafford, Jr., U. S. Atty., Robert L. Crongeyer, Jr., Nick P. Geek-er, Asst. U. S. Attys., Pensacola, Fla., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and INGRAHAM, Circuit Judges.
   PER CURIAM:

Defendant appeals from his conviction for transporting unlawfully admitted aliens within the United States in violation of 8 U.S.C. § 1324(a) (2). He seeks reversal on three grounds: (1) that all information gained as a result of his initial stop by border patrol agents ought to have been suppressed; (2) that the evidence was insufficient to support a conviction; and (3) that the trial court erred in permitting cross examination of the accused concerning a prior felony conviction. We affirm.

Defendant, while driving a camper truck east on Interstate Highway 10 just outside Pensacola, Florida, was stopped by immigration officers on roving patrol. After halting the vehicle the agents, without need for a search, observed a number of men, apparently of Mexican descent, bedded down in the cabin. Defendant explained that the men were hitchhikers picked up on (a highway in Mississippi. His twelve passengers admitted to the officers that they were aliens illegally in the United States. Defendant contends that no testimony concerning this highway encounter should have been permitted at trial because the initial stop violated his constitutional guarantee of freedom from unreasonable seizure.

The border patrol agents acted pursuant to the authority conferred by 8 U.S. C. § 1357(a), which provides in part that “any officer or employee of the [Immigration] Service authorized under regulations prescribed by the Attorney General shall have power without warrant . . . (3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any . . . vehicle .” The term “reasonable distance” has been defined by regulation as within 100- air miles of any external boundary of the United States In this case the stop occurred some 10 miles from an external boundary, the coastline of the Gulf of Mexico.

Defendant’s argument for the constitutional invalidity of this official action authorized by federal statute and regulation derives from the recent decision of Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596. In that case the Supreme Court held that, notwithstanding the attempted congressional dispensation in Section 1357, searches and seizures by border officials are subject to the same Fourth Amendment restrictions as any other police action, unless they are conducted at the physical border or its functional equivalent.

Were we to apply the teaching of Almeida-Sanchez to the facts of this case, serious doubt would exist as to whether the contested stop, made on less than probable cause and in the absence of even the “reasonable suspicion” recognized in Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, could survive. This Court has recently determined, however, that the constitutional enlightenment provided by Almeida-Sanchez should not be applied to the analysis of official action occurring prior to the date of that opinion. United States v. Miller, 1974, 492 F.2d 37. The stop involved here occurred some two months before the decision in Almeida-Sanchez was issued; and under the Fourth Amendment precepts announced in Miller for pre-Almeida-Sanchez cases, no constitutional infirmity exists in this stop for identification of defendant’s truck within the geographic boundaries established by regulation and on a highway known by immigration officials as a primary route for the smuggling of aliens into Florida for work during the picking season.

Defendant’s argument of insufficient evidence rests largely on the fact that the testimony of a key Government witness was impeached by the introduction of his prior inconsistent statements. While proof of previous contradictory assertions would weaken the effectiveness of any witness, this Court cannot substitute its own assessment of the truthfulness of the witness for the final determination reached by the jury.

“It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.”

Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680.

The trial court charged the jury that in order to obtain a conviction for violation of 8 U.S.C. § 1324(a)(2) the Government must prove beyond a reasonable doubt that:

“ . . . the defendant transported or moved the aliens described in the information, or any one of them, within the United States; that the aliens, or any one of them so transported or moved, had not been duly admitted to the United States by an immigration officer or was not lawfully entitled to enter within the United States; and that such was known by the defendant; and that the defendant knew or had reasonable grounds to believe that the last entry of the aliens or any one of them occurred less than three years prior to [the time of the transportation] ; and that the defendant did the above acts in furtherance of the violation of the law by the aliens or any one of them and that the defendant did the forgoing wilfully and knowingly.”

Defendant does not dispute the accuracy of this instruction, and the evidence adduced at trial was ample to support a conviction under its terms.

Defendant testified in his own behalf. The final contention of error arises from the fact that on cross-examination he was required to give information concerning a prior felony conviction for illegal transportation of aliens. Evidence of prior conviction of a felony or of a misdemeanor involving moral turpitude is admissible for the purpose of impeaching the credibility of a witness. United States v. Saitta, 5 Cir. 1971, 443 F.2d 830, cert. denied 404 U.S. 938, 92 S.Ct. 269, 30 L.Ed.2d 250. A defendant who takes the stand puts his credibility in issue and is subject to such impeachment within the sound discretion of the trial court. Both the questioning by the prosecutor and the court’s limiting instruction to the jury were within the parameters expressly approved by this Court in Bendelow v. United States, 5 Cir. 1969, 418 F.2d 42, and can provide no ground for reversal.

Affirmed.

      . 8 C.F.R. § 287.1.

      . We wish to emphasize in this respect that Miller cannot be read as approving every stop and search conducted by border patrol agents within 100 miles of an external boundary prior to June 21, 1973, the date of the opinion in Almeida-8 anchee. This Court had explicitly recognized, even before that landmark Supreme Court decision, that Fourth Amendment considerations would necessarily limit the constitutional scope of 8 U.S.C. § 1357 and its attendant regulations.
      “[P]roximity to the frontier does not automatically place a 100-mile strip of citizenry within a deconstitutionalized zone, with its attendant de-escalation of Fourth Amendment requirements. We would find it peculiar, for example, if massive searches were permissible in downtown Cleveland or Buffalo on the basis of a ‘border search’ theory. Therefore, while ‘border search’ is a convenient phrase to describe a reasonableness standard for searches pursuant to the customs and immigration laws, it is not sufficiently internally descriptive to justify automatically the reasonableness of all searches conducted for customs and immigration purposes within a certain proximity to national borders.”
      United States v. McDaniel, 5 Cir. 1972, 463 F.2d 129.
      In Marsh v. United States, 5 Cir. 1965, 344 F.2d 317, this Court ordered suppression of the fruits of an alleged border search conducted 63 miles from the border, noting that:
      ‘[I]f the Government seeks to qualify the action as a geographically ‘extended’ border search, it must show at least the circumstances known to the officers at the border which reasonably justified the request relayed to officers in the interior. Any other doctrine would render travelers who had recently entered this country subject to almost unlimited arrest and search without any cause save the simple request of a border officer to one at an interior point. In our view this cannot be squared with the test of reasonableness under the Fourth Amendment.”
      344 F.2d at 325.

      . The trial court charged that:
      “Evidence of a defendant’s prior conviction of a felony is to be considered by the jury only insofar as it may effect the credibility of the defendant as a witness and must never be considered as evidence of guilt of the crime for which the defendant is on trial.”


text:
    Joe Ed HUDSON, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.
    No. 73-3467
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 24, 1974.
    Edwin K. Livingston, Montgomery, Ala. (court-appointed), for petitioner-appellant.

      William J. Baxley, Atty. Gen., David W. Clark, Asst. Atty. Gen., Kent B. Brunson, Legal Research Aide, Montgomery, Ala., for respondent-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Hudson appeals a denial of his petition for habeas corpus following a full evidentiary hearing in which the District Judge found insufficient evidence to support a claim of ineffective assistance of counsel at petitioner’s state trial in 1948. The Judge also concluded that the petitioner was barred by laches since he had not been reasonably diligent in asserting his rights. We do not feel that laches should bar the application of constitutional principles, here on plain due process grounds, and therefore reverse the decision of the District Court.

Represented by court-appointed counsel, petitioner was convicted in 1948 by a jury of the Circuit Court of Chilton County, Alabama, on two counts of armed robbery. The Court sentenced Hudson to 10 years on the first count and 15 years on the second count. Petitioner completed serving these two sentences in 1970 but is still incarcerated in an Alabama prison serving a 25-year sentence which he received following a 1951 conviction for armed robbery in Lowndes County, Alabama.

While there is no record of the two 1948 convictions, there is a certified copy of the minutes included in the evidence submitted at the District Court hearing. The facts as presented by the petitioner and largely supported in the record of the evidentiary hearing indicate that when Hudson was arraigned he entered a plea of not guilty which he never altered during the trial. Hudson met his court-appointed counsel, a well-respected attorney in the County, for the first time on the morning of his trial. His attorney told him that he had just talked to the State Solicitor and had struck a deal whereby the petitioner would receive a 10-year sentence on count one. The petitioner protested and insisted on abiding by his not guilty plea. His counsel reminded him that the two crimes for which he was charged carried the death penalty. The lawyer left and returned an hour later with a promise from the State Solicitor for a 15-year sentence on the second charge. Petitioner again refused to change his plea of not guilty.

A jury was impaneled and the indictment for count one was read to them. Petitioner’s attorney then explained to the jury the agreement which he had reached with the State Solicitor. Without any evidence ever being produced, the jury left the courtroom and returned shortly thereafter with a verdict of guilty. The jury recommended the 10-year sentence as proposed in the so-called agreement. The same procedure was followed for count two and the petitioner received the recommended 15-year sentence. Petitioner never entered a plea of guilty on either charge.

In its order following the evidentiary hearing, the District Judge found that the procedure followed in petitioner’s 1948 convictions was not an unusual practice for the time and place. The Judge recognized that at first blush the attorney’s failure to question this procedure would justify a conclusion pf ineffective counsel. However, he found that a proper understanding of this procedure explained the willingness of an attorney to allow a jury to find his client guilty without any formal presentation of evidence. The District Judge felt that petitioner’s 1948 sentences were by consent and this in turn explains why he was so long in challenging their constitutionality.

We reject the District Judge’s rationalization that a proper understanding of the time and place in which these procedures were used ameliorates the blatant disregard by Hudson’s attorney for the rights and wishes of his client. Under the standards of this circuit, Hudson was entitled to counsel reasonably likely to render and rendering reasonably effective assistance. Herring v. Estelle, 5 Cir. 1974, 491 F.2d 125. Hudson’s counsel hardly rendered reasonably effective assistance when he informed the jury of the agreement for conviction and sentence which he had made with the State Solicitor, over the defendant’s protestation, and when he allowed a conviction without any presentation of evidence. Such total ineffectiveness of assistance as that rendered by Hudson’s counsel was clearly not reasonably effective.

Laches is not an adequate bar to looking into the constitutional consequences of virtually admitted facts nor granting suitable relief. Antiquity cannot shield such harrendous practice. Further, laches goes to the difficulty of proof, not present in this case. See Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; United States v. Smith, 1947, 331 U.S. 469, 67 S.Ct. 1330, 91 L. Ed. 1610; Hamilton v. Watkins, 5 Cir., 1970, 436 F.2d 1323.

Since the defendant has served all his time under the two 1948 convictions, we order that both 1948 convictions be vacated and eradicated from his record.

Reversed.

      . Although petitioner has completed serving his two sentences received in 1948, his habeas petition is not moot since the District Court has jurisdiction to pass on a prior conviction even though the sentence has been completely served when there is a definite relationship between the prior conviction and the sentence currently being served. Cappetta v. Wainwright, 5 Cir., 1969, 406 F.2d 1238.

      . Hudson challenged his 1948 convictions in 1965 through a writ of error coram nobis. A hearing was held but the state court denied Hudson any relief. Judge Varner in his order filed August 7, 1973 made the following observations regarding Hudson’s coram nobis hearing:
      “(1) Mr. Hudson did not see Ms attorney until late Friday, August 6, 1965. This was only two days before the hearing and apparently little time was spent at this meeting;
      (2) Mr. Hudson requested several witnesses but the State did not assist him in obtaining said witnesses;
      (3) The evidence indicating that the State’s attorney may have misdirected some of the defense witnesses.”
      All of the above facts raise serious questions has to whether Mr. Hudson was afforded due process at the coram nobis hearing.

      . The United States Court of Appeals for the Sixth Circuit recently rejected its prior holdings which required a showing of farce or mockery before relief would be granted. The Court stated that “we must agree with the Courts of Appeals for the Fifth and District of Columbia Circuits, that the ‘farce and mockery’ test should be abandoned as a meaningful standard for testing Sixth Amendment claims.” Beasley v. United States, 1974, 6 Cir., 491 F.2d 687. In establishing a new standard, the Court held “that the assistance of counsel required under the Sixth Amendment is counsel reasonably likely to render and rendering reasonably effective assistance. It is a violation of this standard for defense counsel to deprive a criminal defendant' of a substantial defense by his own ineffectiveness or incompetence.”


author: GEWIN, Circuit Judge:

text:
    Beatrice TOOTEN, Petitioner-Appellant, v. Robert L. SHEVIN, Attorney General, State of Florida, and Reubin O’D. Askew, Governor, and the State of Florida, Respondents-Appellees.
    No. 73-3816
    Summary Calendar .
    United States Court of Appeals, Fifth Circuit.
    April 25, 1974.

      Phillip A. Hubbart, William Aaron, Bennett H. Brummer, Asst. Public Defenders, Miami, Fla., for petitioner-appellant.
    J. Robert Olian, Asst. Atty. Gen., Miami, Fla., for respondents-appellees.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

       Rule 18, 5th Cir. see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   GEWIN, Circuit Judge:

Today we must decide whether a pretrial application for a writ of prohibition addressed to a state supreme court satisfies the exhaustion requirement which is a prerequisite before seeking federal habeas corpus relief. In recognition of the value of the underlying policies which buttress the exhaustion rule, requiring an initial presentation of ha-beas corpus claims to the state court system, we hold that it does not.

Beatrice Tooten, a non-physician, is charged under the Florida abortion statute with performing an illegal abortion in an unapproved facility. In response to the charges she moved to dismiss contending that the Florida statute is unconstitutional. The trial court denied her motion. She then applied to the Florida Supreme Court for a writ of prohibition alleging that the unconstitutional abortion statute deprived the trial court of jurisdiction. Although the extraordinary writ of prohibition will lie to bar a state criminal prosecution based upon an unconstitutional statute, the Florida Supreme Court summarily denied her application.

On this appeal she argues that she has properly presented Florida’s highest state court with an opportunity to pass upon her claim, and thus she has exhausted her state remedies. The federal district court rejected her exhaustion contention and suggested that she allow the Florida state courts a chance to consider her arguments during the trial and appellate process. We affirm.

Although federal courts have the power to release state prisoners before trial, the exhaustion requirement must be fulfilled. The exhaustion doctrine is a judicially crafted requirement, now considered jurisdictional, which is firmly rooted in sound considerations of federal-state comity. Two significant interests have been identified which are protected by the policy of exhaustion.

First, exhaustion preserves the role of the state courts in the application and enforcement of federal law. Early federal intervention in state criminal proceedings would tend to remove federal questions from the state courts, isolate those courts from constitutional issues, and thereby remove their understanding of and hospitality to federally protected interests. Second, exhaustion preserves orderly administration of state judicial business, preventing the interruption of state adjudication by federal habeas proceedings. It is important that petitioners reach state appellate courts, which can develop and correct errors of state and federal law and most effectively supervise and impose uniformity on trial courts.

These fundamental interests underlying the exhaustion doctrine are satisfied by giving the state an initial opportunity to pass upon and correct alleged violations of its prisoners’ federal rights. Whatever may be the merits of her constitutional argument, the appellant has not presented the Florida courts with such an “initial opportunity” to promulgate a final and definitive ruling. Therefore, appellant’s reliance on this court’s recent decision in Fain v. Duff is misplaced. In Fain the Florida courts on direct appeal fully considered the petitioner’s double jeopardy contention; there was nothing more for the courts of Florida to say or do. In the instant case, however, the Florida courts have yet to finally adjudicate the issue presented here. The writ of prohibition is an extraordinary writ. Even though an extraordinary writ may have been denied before trial upon the appellant’s arguable constitutional claim, the Florida courts on direct appeal may adopt her position.

The appellant contends that a direct appeal cannot vindicate her federal rights because she claims a right to freedom from an unconstitutional prosecution and the subjection to the rigors of a criminal trial. To support this position she relies again on Fain v. Duff. There the court noted that Fain was not merely asserting a federal defense to a state prosecution. Rather he was asserting a double jeopardy claim, and that is a right to be free from a second prosecution, not merely a second punishment. This distinction provided further support for the Fain decision, but there the petitioner was entitled to a pretrial writ of habeas corpus not only because the claim was double jeopardy but also because he had exhausted his state remedies.

Interruption of the state proceedings in the present case would seem to frustrate the very policies upon which the exhaustion doctrine is based. Exercising jurisdiction here would deprive the state appellate courts of a meaningful opportunity to analyze appellant’s federal claims and to supervise the trial courts in the state judicial system. In Braden v. Judicial Circuit Court of Kentucky a pre-trial habeas corpus writ was granted, but the court found that the petitioner had exhausted all available state court opportunities to establish his right to a speedy trial. Moreover, rather than trying to interrupt the orderly functioning of the state judicial process, as is the case here, Braden came to the federal court in order to enforce Kentucky’s obligation to provide him with a forum. The Braden court carefully emphasized that nothing it said would permit the derailment of a pending state proceeding by an attempt to litigate constitutional defenses prematurely in federal court.

Challenging the constitutionality of the Florida statute appears to be merely a classic example of a federal defense to a state prosecution. Federal habeas corpus does not lie, absent special circumstances, to adjudicate the merits of an affirmative defense to a state criminal charge prior to a judgment of conviction by a state court. The appellant maintains that “special circumstances” are present here in that she has attempted to have her claim vindicated by the state courts and that prior decisions clearly establish the viability of her argument. This situation does not present the special circumstances envisioned by the courts. As previously explained we do not regard her application for a writ of prohibition as an adequate attempt to obtain state vindication. In the somewhat analogous area of abstention a pending state criminal prosecution will not be enjoined absent “very unusual situations, . . . necessary to prevent immediate irreparable injury.” Irreparable injury will not ordinarily be deemed to be present where the threat to the plaintiff’s federally protected rights can be eliminated by the defense of a single criminal prosecution. Furthermore, special circumstances are not necessarily established by the alleged infallibility of the federal claim. Indeed, without reaching the merits of appellant’s constitutional argument we take note of the fact that if her position is as clearly correct as she suggests, the Florida courts are surely capable of recognizing and vindicating her position.

Federal habeas corpus should not be used as a “pretrial motion forum for state prisoners.” To adopt appellant’s contentions in this case would create just such a result. Accordingly the decision of the district court is affirmed.

Affirmed.

      . A prejudgment petition for a writ of habeas corpus is filed pursuant to 28 U.S.C. § 2241. Prisoners in custody pursuant to the judgment of a state court file habeas corpus petitions pursuant to 28 U.S.C. § 2254.

      . F.S.A. § 458.22(2).

      . As a basis for her constitutional attack the appellant relied on Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) ; Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) ; and a three-judge court decision dealing specifically with the Florida statute, Coe v. Gerstein, 376 F.Supp. 695 (S.D.Fla.1973) [No. 72-1842-CIV-JE, August 13, 1973],

      . See Van Cott v. Driver, 243 So.2d 457 (Fla. App.2d Dist.1971) reversed on other grounds, 257 So.2d 541 (Fla.1971). Van Cott stated, “Prohibition will also lie where jurisdiction was never conferred because the statute was void for being unconstitutional.”

      . Florida Appellate Rule 4.5(d) (2), 32 F.S.A. provides:
      d. Prohibition
      (2) Issuance of Rule. If the suggestion makes a prima facie case the Court will issue a rule directing the inferior court to show cause on a day certain why the writ as prayed for should not issue; and such rule shall operate as a supersedeas when the same has been issued and notice thereof given to respondent.
      On May 23, 1973 the appellant’s suggestion for a writ was denied without the issuance of a rule to show cause.

      . Braden v. Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed. 2d 443 (1973) ; Fain v. Duff, 488 F.2d 218 (5th Cir. 1973). See also Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886).

      . The rule is not a limitation on federal power but merely an expression of federal policy. See Fay v. Noia, 372 U.S. 391, 420, 83 S.Ct. 822, 9 L.Ed.2d 837, 858 (1963). The exhaustion requirement has been codified specifically in 28 U.S.C.A. § 2254(b), however, it applies to habeas corpus petitions under all sections. Fain v. Duff, 488 F.2d 218 (5th Cir. 1973).

      . Note, Developments in the Law — Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1094 (1970), quoted with approval in Braden v. Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443, 450 (1973).

      . Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971).

      . 488 F.2d 218 (5th Cir. 1973).

      . The state trial court dismissed the indictment against Fain prior to trial. On the state’s appeal an intermediate appellate court reversed. The Florida Supreme Court affirmed the appellate court in a per curiam opinion. See R. E. F. v. State, 265 So.2d 701 (Fla.1972).

      . See text accompanying footnote 8, supra.

      . 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973).

      . Braden v. Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed. 2d 443, 449 (1973).

      . See note 3, supra.

      . In his dissent in Braden v. Judicial Circuit Court of Kentucky, 410 U.S. 484, 508, 93 S.Ct. 1123, 1136, 35 L.Ed.2d 443, 456 (1973), Justice Rehnquist states that the situations in which pretrial habeas “is justified involve the lack of jurisdiction, under the Supremacy Clause, for the State to bring any criminal charges against the petitioner.” (emphasis added).

      . Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971).

      . Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

      . Braden v. Judicial Circuit Court of Kentucky, 410 U.S. 484, 508, 93 S.Ct. 1123, 1136, 35 L.Ed.2d 443, 451 (1973).


author: MOORE, Circuit Judge.

text:
    GEORGE R. WHITTEN, JR., INC., d/b/a Whitten Corporation, Plaintiff, Appellant, v. STATE UNIVERSITY CONSTRUCTION FUND, Defendant, Appellee.
    No. 73-1190.
    United States Court of Appeals, First Circuit.
    Argued Oct. 2, 1973.
    Decided March 8, 1974.

      Frank T. Barber, III, Boston, Mass., with whom John E. Lecomte and Le-comte, Shea & Gould, Boston, Mass., was on brief, for appellant.
    Barry L. Radlin, Associate Atty., Albany, N. Y., with whom Ruth Kessler Toch, Sol. Gen., and Louis J. Lefkowitz, Atty. Gen. of the State of New York, were on brief, for appellee.
    Before COFFIN, Chief Judge, McENTEE and MOORE, Circuit Judges.

       Of the Second Circuit, sitting by designation.

   MOORE, Circuit Judge.

This is an appeal from an order of the United States District Court for the District of Massachusetts (Julian, J.), dismissing the plaintiff’s complaint due to lack of subject matter jurisdiction and the defendant’s Eleventh Amendment immunity from suit. Plaintiff-appellant, George R. Whitten, Jr., Inc., d/b/a Whit-ten Corporation (hereafter Whitten), a Massachusetts corporation, is a manufacturer and installer of swimming pool recirculation systems. Whitten generally sells these systems to public bodies and institutions for use in large swimming pools. Defendant-appellee, the New York State University Construction Fund (hereafter SUCF), is a New York “public benefit” corporation created by statute, N.Y.Educ.L. §§ 370-384 (McKinney’s Consolidated Laws of New York, Annotated Book 16, Education Law, 1969) (hereafter McKinney) and charged “to provide academic buildings, dormitories and other facilities for the state-operated institutions . . . under the jurisdiction of the state university. ...” N.Y.Educ.L. § 372 (McKinney 1969).

SUCF prepared a study of the various kinds of pool recirculation devices, reviewing each type’s pros and cons. It then entered into a contract for the distribution of the study with a competitor of Whitten, Paddock Pool Builders, Inc., a New York corporation. The contract provided that Paddock could distribute the study where it wished, but that Paddock would hold SUCF harmless from any damages arising from its distribution.

Paddock distributed several copies in Massachusetts. The study is alleged to contain false and misleading statements concerning Whitten’s product. Whitten contends that it has suffered irreparable harm from the circulation of the study. Suit was brought against SUCF in the District Court for Massachusetts on the basis of diversity of citizenship. 28 U.S.C. § 1332. The court below dismissed the complaint “on the grounds of lack of jurisdiction over the subject matter and Eleventh Amendment immunity from suit.” This appeal is from that dismissal.

After some 67 pages of debate between Court and counsel for the respective parties as to whether the Court should consider the motion as a motion to dismiss (Rule 12, F.R.Civ.P.) or a motion for summary judgment .(Rule 56), the parties agreed that the motion should be considered as one for summary judgment. (Tr. 168-73). As for the fundamental issue, appellant’s counsel said, “. . .if you [the Court] decide that the SUCF ... is clothed with the immunity of the State, and is entitled to the Eleventh Amendment immunity, then I’m out.” (Tr. 169).

The judge below, by granting the motion, found that SUCF was an “alter ego” of the State of New York and barred the suit on the allied grounds of Eleventh Amendment immunity and lack of requisite diversity of citizenship. Thus it is this characterization of SUCF that forms the key issue for review.

The test of whether a State organization can be sued in a federal court is the presence or non-presence of the State as the real party in interest. State Highway Commission of Wyoming v. Utah Construction Co., 278 U.S. 194, 49 S.Ct. 104, 73 L.Ed. 262 (1929); Krisel v. Duran, 386 F.2d 179 (2d Cir.), cert. denied, 390 U.S. 1042, 88 S.Ct. 1635, 20 L.Ed.2d 303 (1967). In making this determination, the courts have considered a variety of factors: ability to sue and be sued, lack of express authority to sue, performance by the entity of an “essential government function”, power to take property in the name of the State, power to take property in its own name, corporate status, lack of corporate status, financial interest of the State, and absence of state financial interest. See 6 ALR Fed. 615.

Of these factors “ultimate State liability” is the most determinative. Such ultimate liability would rest primarily upon two factors: the degree to which the organization is financially dependent upon the State, and the extent to which the organization performs a State obligation or function. As stated in Breen v. Mortgage Commission, 285 N.Y. 425, 429, 35 N.E.2d 25 (1941):

The problem, therefore, is to determine who is the real defendant in the case at bar. If the real defendant is the State, then, of course, it may be sued only as it has consented to be sued, to wit, in the Court of Claims.

Since SUCF is dependent upon State appropriations, “[i]t is plain that a judgment obtained against the Commission [here SUCF] would be against the State, since the Commission is only an agent of the State.....” Breen, at 430, 35 N.E.2d at 27.

The District Court relied heavily on a recent Federal District Court decision in New York, Charles Simkin & Sons, Inc. v. State University Construction Fund, 352 F.Supp. 177 (S.D.N.Y.1973), the Court stating:

The threshold question of whether defendant Fund shares the immunity of the sovereign state of New York has been recently answered in the affirmative in Charles Simkin & Sons., Inc. v. State University Construction Fund, 352 F.Supp. 177 (S.D.N.Y.1973). In Simkin, the Court granted a motion to dismiss a contract action brought against the instant defendant, holding that the Fund “in its functions, purposes and operations is designed to perform a State obligation and does so as an arm or alter ego of the State.” Id., at 179.

A review of the statutory creation of SUCF leads to the conclusion, reached both by Simkin, supra, and by the District Court, that SUCF is a State agency and thus immune from suit under the Eleventh Amendment. The New York Legislature made SUCF a part of the State University, which had been created under Article 8 of the Education Law in enacting Article 8-A wherein Section 371 provided:

There is hereby created within the state university the “state university construction fund”. The fund shall be a corporate governmental agency constituting a public benefit corporation.

Amongst its purposes were “to provide academic buildings, dormitories and other facilities for the state-operated institutions . . . .” (Section 372). Although SUCF has the power to sue and be sued (Section 373(1)), unlike the New York Dormitory Authority, it has no financial independence of its own. Furthermore, as the New York Court of Appeals held in dealing with the Mortgage Commission in Breen, supra, at 431, 35 N.E.2d at 27:

From the fact that the Legislature has granted to the Commission the right to sue and has granted to certificate holders and others the right to sue the Commission in proper cases, it does not follow that the State has consented to be sued for a claim against it in the Supreme Court of the State rather than in the Court of Claims. Statutes in derogation of the sovereign immunity of the State to suit are strictly construed.

And in State University of New York v. Syracuse University, 206 Misc. 1003, 137 N.Y.S.2d 916 (S.Ct. Albany County 1954), a Justice of the New York Supreme Court (the court of original jurisdiction) posed the problem before him as “whether the plaintiff [the State University] is only an agency of the State in the performance of its educational functions or has been delegated governmental powers to be exercised apart from State liability, (citing cases).”

After reviewing the legislation creating the State University, thé court concluded :

Those statutes indicate that the Legislature intended to create a mere corporate agency within the state’s department of education directly to carry out certain of its governmental functions in respect of higher education. As such it has immunity from suit in the Supreme Court. (Citing cases).

The Appellate Division of the New York Supreme Court affirmed, stating:

The court also has dismissed on jurisdictional grounds a counterclaim by Syracuse University asserting a cause of action against State University for money' due under the contract. The State University is an integral part of the government of the State and when it is sued the State is the real party. (Citing cases). The Supreme Court has not acquired jurisdiction of the counterclaim.

State University of New York v. Syracuse University, 285 App.Div. 59, 135 N.Y.S.2d 539 (3rd Dept. 1954).

Appellant points to the fact that SUCF has at least twice been sued in the New York State Supreme Court (McKinney, 1969) under Article 78 proceedings, N.Y. C.P.L.R. § 7801 et seq.: Application of Forsythe Plumbing and Heating Corp., 18 App.Div.2d 1124, 239 N.Y.S.2d 172 (3rd Dept. 1963); Renel Construction Inc. v. SUCF, 58 Misc.2d 983, 297 N.Y.S. 2d 344 (S.Ct. Albany County 1969). However, Article 78 proceedings are but a statutory substitute for certiorari, mandamus and prohibition and should not be used to infer lack of governmental status. Newbrand v. Yonkers, 285 N.Y. 164, 33 N.E.2d 75 (1941). It is true that the New York Dormitory Authority, somewhat similar to SUCF in purpose and organization, compare N.Y.Pub. Auth.L. § 1675 et seq., McKinney’s Con-sol.Laws, c. 43-A with N.Y.Educ.L. § 371 et seq., has been adjudged to be a separate entity for the purposes of suit. Matter of Dormitory Authority, 18 N.Y. 2d 114, 271 N.Y.S.2d 983, 218 N.E.2d 693 (1966); Braun v. State of New York, 203 Misc. 563, 117 N.Y.S.2d 601 (Ct.Cl. 1952). However, the State University, see N.Y.Educ.L. § 201 et seq., specifically has been held not to be so, State University of New York v. Syracuse University, supra. The difference between the Dormitory Authority and the State Uni-'— versity was stressed in the Syracuse University case, the court stating:

The Dormitory Authority which was held in Braun v. State of New York, 203 Misc. 563, 117 N.Y.S.2d 601, to be an independent state agency not subject to suit in the Court of Claims was a “public benefit corporation * * * existed on a self-liquidating basis * * The governmental functions delegated to the corporate instrumentality in that case clearly distinguish it from the one at bar.

137 N.Y.S.2d at 917, 918.

This difference was also carefully analyzed by the District Court in its Sim-kin opinion and the analysis resulted in the conclusion that:

It is inescapable that the State University Construction Fund in its functions, purposes and operations is designed to perform a Staté obligation and does so as an arm or alter ego of the State.

352 F.Supp. at 179.

As to subject matter jurisdiction, the Simkin court stated:

Subject matter jurisdiction also is lacking for, to borrow from Fabrizio & Martin Incorporated v. Board of Education, 290 F.Supp. 945, 948 (S.D. N.Y.1968) to sustain jurisdiction, the court must find that the State University Construction Fund is a corporate entity sufficiently independent and separate from the State to carry its own citizenship, and not by this suit, expose the State to financial or other detriment. The court is unable to make those findings under the facts of this ease.

Thus, SUCF as a part of, or agency of, the State University, and the State University being an arm of the State, the immunity extended to the State University also embraces SUCF. In our opinion, Simkin properly reflects the law with respect to the Eleventh Amendment immunity of, and subject matter jurisdiction over, SUCF and the District Court was correct in relying on its conclusion.

Order affirmed.

      . Plaintiff also appealed from an order denying its motion for leave to use depositions taken in a prior action. However, the present decision on the jurisdictional issue renders any consideration of the former question unnecessary.

      . A determination that the defendant is an “alter ego” of the State makes the complaint run afoul of the Eleventh Amendment, and also prevents the presence of the requisite diversity required by 28 U.S.C. § 1332 (1970). See Fabrizio & Martin Inc. v. Board of Education, 290 F.Supp. 945 (S.D.N.Y.1968).
      Appellant also raised the issue of sovereign immunity. These three doctrines, sovereign immunity, Eleventh Amendment immunity and lack of citizenship for the purposes of 28 U.S.C. § 1332 (1970), are closely allied and yet not identical. Eleventh Amendment immunity merely extends this immunity to suits against the State by any citizen of the United States. Missouri v. Fiske, 290 U.S. 18, 24, 54 S.Ct. 18, 78 L.Ed. 145 (1933) ; Gunter v. Atlantic Coast Line, 200 U.S. 273, 26 S. Ct. 252, 50 L.Ed. 477 (1906) ; Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 27 L.Ed. 780 (1883). However, waiver of the first immunity is not generally a waiver of the second, Ford Motor Co. v. Dep’t of Treasury of Indiana, 323 U.S. 459, 464-65, 65 S.Ct. 347, 89 L.Ed. 389 (1945). What may not be waived is lack of citizenship for the purposes of 28 U.S.C. § 1332; State Highway Comm. of Wyoming v. Utah Contr. Co., 278 U.S. 194, 49 S.Ct. 104, 73 L.Ed. 262 (1929) ; Krisel v. Duran, 386 F.2d 179 (2d Cir.), cert. denied, 390 U.S. 1042, 88 S.Ct. 1635, 20 L.Ed.2d 303 (1967).

      . Krisel v. Duran, 386 F.2d 179 (2d Cir.), cert. denied, 390 U.S. 1042, 88 S.Ct. 1635, 20 L.Ed.2d 303 (1967) ; Kansas Turnpike Authority v. Abramson, 275 F.2d 711 (10th Cir.), cert. denied, 363 U.S. 813, 80 S.Ct. 1250, 4 L.Ed.2d 1154 (1960) (tending to show jurisdiction) ; State Highway Comm. v. Utah Constr. Co., 278 U.S. 194, 49 S.Ct. 104, 73 L.Ed. 262 (1929) ; Broadwater Missouri Water Users’ Assoc. v. Montana Power Co., 139 F.2d 998 (9th Cir. 1944) ; West Virginia v. Haynes, 348 F.Supp. 1374 (S.D. W.Va.1972) ; McDevitt & Street Co. v. Georgia Bldg. Auth., 343 F.Supp. 1238 (N.D.Ga. 1972) (not tending to show jurisdiction).

      . Missouri Pac. R. Co. v. Travelers Ins. Co., 281 F.Supp. 100 (D.Ga.1968) (tending to show no jurisdiction) ; C. H. Leavell & Co. v. Bd. of Comm’rs., 424 F.2d 764 (5th Cir. 1970) ; George A. Fuller Co. v. Coastal Plains, Inc., 290 F.Supp. 911 (D.La.1968) (implied authority present therefore no bearing on jurisdiction) .

      . Fowler v. California Toll Bridge Authority, 128 F.2d 549 (9th Cir. 1942) (tending to show no jurisdiction) ; Gerr v. Emrick, 283 F.2d 293 (3d Cir. 1960), cert. denied, 365 U.S. 817, 81 S.Ct. 698, 5 L.Ed.2d 695 (1961) (not tending to show no jurisdiction).

      . Fowler v. California Toll Bridge Authority, 128 F.2d 549 (9th Cir. 1942) ; Missouri Pacific R. Co. v. Travelers Ins. Co., 281 F.Supp. 100 (D.La.1968) (tending to show no jurisdiction) ; Broadwater-Missouri Water Users’ Assoc. v. Montana Power Co., 139 F.2d 998 (9th Cir. 1944) (not necessarily showing no jurisdiction).

      . Dep’t of Highways v. Morse Bros. & Assoc., Inc., 211 F.2d 140 (5th Cir. 1954) (tending to show jurisdiction).

      . Kansas Turnpike Authority v. Abramson, 275 F.2d 711 (10th Cir. I960), cert. denied, 363 U.S. 813, 80 S.Ct. 1250, 4 L.Ed.2d 1154 (1960) ; Dep’t of Highways v. Morse Bros. & Assoc., Inc., 211 F.2d 140 (5th Cir. 1954) (tending to show jurisdiction).

      . Krisel v. Duran, 386 F.2d 179 (2d Cir.), cert. denied, 390 U.S. 1042, 88 S.Ct. 1635, 20 L.Ed.2d 303 (1967) ; State Highway Comm. v. Kansas City Bridge Co., 81 F.2d 689 (8th Cir.), cert. denied, 298 U.S. 661, 56 S.Ct. 682, 80 L.Ed. 1386 (1936) (tending to show no jurisdiction) ; C. H. Leavell & Co. v. Bd. of Comm’rs., 424 F.2d 764 (5th Cir. 1970) ; Hunkin-Conkry Constr. Co. v. Pennsylvania Turnp. Comm., 34 F.Supp. 26 (D.Pa. 1940) (not necessarily showing no jurisdiction) .

      . State Highway Comm. v. Utah Constr. Co., 278 U.S. 194, 49 S.Ct. 104, 73 L.Ed. 262 (1929) ; Dacey v. Florida Bar, Inc., 414 F.2d 195 (1969), cert. denied, 397 U.S. 909, 90 S.Ct. 906, 25 L.Ed.2d 89 (1970) ; DeLong Corp. v. Oregon State Highway Comm., 343 F.2d 911 (9th Cir.), cert. denied, 382 U.S. 877, 86 S.Ct. 161, 15 L.Ed.2d 119 (1965) (tending to show no jurisdiction).

      . Missouri, K. & T. R. Co. v. Missouri R. & Warehouse Comm’rs., 183 U.S. 53, 22 S.Ct. 18, 46 L.Ed. 78 (1901) ; Kansas Turnpike Auth. v. Abramson, 275 F.2d 711 (10th Cir. 1960), cert. denied, 363 U.S. 813, 80 S.Ct. 1250, 4 L.Ed.2d 1154 (1960) (tending to show jurisdiction).

      . Simkin was affirmed by the Second Circuit, Docket No. 73-1777 November 16, 1973. However, this affirmance, due to the presence of additional procedural questions and the fact that it was affirmed in open court without opinion, does not necessarily lend any additional support to the holding.


author: DYER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Nathaniel STRICKLAND, a/k/a Butch, Defendant-Appellant.
    No. 73-3211.
    United States Court of Appeals, Fifth Circuit.
    April 26, 1974.

      Ben C. Abney (Court-appointed), William Pitts Carr, Atlanta, Ga., for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., J. Robert Cooper, Steven Ludwick, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-ap-pellee.
    Before DYER, MORGAN and RO-NEY, Circuit Judges.
   DYER, Circuit Judge:

The principal thrust of Strickland’s appeal is that a New York Police Department detective, redolent of good intentions and with an avuncular manner, deceived Strickland into believing that incriminating statements which he made during a police investigation into a shooting attack on him while attempting to purchase heroin, were to be used solely for the state prosecution of Strickland’s attackers and had no Januslike implication that would lead to his indictment, prosecution and conviction for conspiring to unlawfully distribute heroin hydrochloride in violation of 21 U.S. C.A. §§ 841 and 846. We affirm.

In early August, 1972, Strickland, while vacationing with his girl friend and her son at the Playboy Club in Ochos Rios, Jamaica, fortuitously met Peter Vario, his wife and daughter, who were also guests at the Club. They became friendly, and Vario, who lived in New York, indicated that he could acquire narcotics in that city for Strickland, who lived in Atlanta, Georgia.

After Strickland returned to Atlanta, he telephoned Vario in New York, and on August 23, 1972, Strickland drove from Atlanta to North Carolina, flew from there to Newark, New Jersey, and then checked into the City Squire Motor Inn in New York City. After his arrival Strickland telephoned Vario and met with him that night. The two discussed their business, and before leaving Vario informed Strickland that someone would call later.

The following day, August 24, 1972, Strickland moved to the Americana Hotel, where he received a call from Vario, who indicated that someone else would call him later. At Vario’s request, “Mike” called on Strickland that night to “discuss business.” At this meeting Strickland agreed to purchase two kilos of heroin for $48,000 cash and $12,000 credit. He then telephoned a contact in Atlanta and arranged for the person to obtain $48,230 in cash from Strickland’s attic and to bring it to New York. The directive was carried out, and Strickland received the money on August 26, 1972. He then met with Mike and paid him $48,000 in cash. Later in the day Mike introduced him to “Lennie,” who drove Strickland to a junk yard to pick up the heroin. At Lennie’s request Strickland got out of the car to open a gate, at which point Lennie shot him. Strickland managed to escape and run to a gasoline station where he was later picked up by an ambulance and taken to the intensive care unit of a hospital.

On August 27, 1972, Detective Gor-man of the New York Police Department, Homicide Assault Squad, visited Strickland in the hospital, identified himself and informed Strickland that he was investigating the assault. During the interview, Strickland related the details of his misfortune. Gorman assured Strickland at some point in the interview that the police were only interested in investigating the assault. In fact, to prevent further possible assaults on Strickland, a plainclothes officer was posted outside his hospital room. Despite Gorman’s assurances, Strickland was subsequently prosecuted in the Northern District of Georgia for narcotics violations, following his appearance before a federal grand jury in New York engaged in an investigative probe.

During the hearing on Strickland’s motion to suppress the incriminating statements made by him to Gorman on August 27, 1972, the detective was at first somewhat equivocal about when he told Strickland that he was not going to do anything about possible narcotics violations — that his sole interest was to arrest and prosecute the individuals who had shot Strickland. Finally, when interrogated by the court Gorman maintained that he told Strickland that the only way he could help him recover his money and prosecute those responsible for the assault was for Strickland to relate to Gorman the details surrounding the attack. Gorman further testified that in response to this request Strickland told him the whole story, and that it was not until Gorman was about to leave that he informed Strickland that he was interested not in the narcotics aspect of the case but in carrying out his duties as a member of the city’s assault squad. The district court ruled that any statements made by Strickland after Gorman disavowed any interest in a narcotics prosecution would be suppressed.

At trial, without objection, the detective related in detail what Strickland had told him at the August 27, 1972, interview. On cross-examination, in response to a question whether he had told Strickland that he was not interested in prosecuting him, the detective answered:

After talking, just at the end of the interview, I believe Mr. Strickland also stated to me can I get in trouble for this? My statement to him at that particular time was my interest is not in you, my interest is in the people who shot you, you are a victim of a crime, that is my primary concern here. That was the statement I made to him prior to leaving the hospital on the 27th.

The Government, without objection, then introduced into evidence a transcript of Strickland’s testimony before a federal grand jury in New York. It is undisputed that he was fully and properly advised of his constitutional rights before testifying in that proceeding and that he voluntarily waived his rights. He related in detail to the grand jury the events that took place from his initial meeting with Vario in Jamaica until he was relieved of his $48,000 and shot in New York.

At the close of the Government’s case, Strickland moved for a judgment of acquittal because of improper venue, and he also moved to exclude Gorman’s testimony because it varied from that given during the suppression hearing. The motions were denied, the jury found Strickland guilty, and this appeal ensued.

Strickland launches ■ a many-pronged attack on the admissibility of his incriminating statements made in the hospital interview with Gorman. Only two of his contentions merit discussion. First, Strickland points to Gorman’s equivocation at the pretrial hearing concerning the precise time during the interview of August 27 when the detective told Strickland that he had no interest in pursuing a narcotics case. Claiming that this representation was made at the beginning, not at the end of the interview, Strickland says that he was induced by a promise or hope of immunity from prosecution which rendered his admissions involuntary and inadmissible.

This ' contention cannot stand. At the hearing on the motion to suppress the court ruled out any admissions made after the detective assured Strickland that his only interest was in the assault aspect of the case. At trial Gorman, without objection, testified fully concerning Strickland’s admissions on the basis that they were made before Gorman gave Strickland any assurances.

What we said in Andrews v. United States, 5 Cir. 1962, 309 F.2d 127, 129, is apropos here:

Appellant insists that the written confession and other admissions introduced in evidence were not voluntary and thus not admissible. Whether or not such extra-judicial statements are voluntary is a preliminary question of fact to be determined by the trial judge. The judge found that the admissions and confessions were voluntary, and a careful review of the record leads us to the conclusion that the trial court committed no error in allowing the introduction of the evidence.

After the Government rested, Strickland moved to exclude the detective’s testimony because it varied from his pretrial testimony. The district court properly denied the motion. If Gorman’s testimony at the pretrial hearing contradicted in any particular that which he gave at trial, Strickland could have developed this variance by cross-examination and thus could have attempted to impeach Gorman. At the end of the ease the court had no power to exclude the testimony of a witness on the ground that it was claimed to be, in some respects, inconsistent with testimony previously given by the witness. It was for the jury to determine whether the witness spoke the truth. As was stated in Andrews, supra at 129: “Of course, the weight and credibility ultimately to be given the statements were questions for the jury, who obviously believed them.”

Next, it is urged that Strickland’s admissions were not voluntary because they were made while he was in the intensive care unit and while he was either lapsing in and out of consciousness or intermittently sleeping. Although Strickland argues that the court made no independent determination of voluntariness as required by Jackson v. Denno, 1964, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, it is manifest that this issue was resolved against Strickland at the pretrial suppression hearing. See Sims v. Georgia, 1967, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593. Since Strickland did not testify at trial the court properly submitted this issue to the jury with a proper charge that the admissions had to be freely, voluntarily and intentionally made in order to be considered.

Strickland next asserts that his New York grand jury testimony should have been suppressed as being the “fruit of the poisonous tree.” Silverthorne Lumber Co. v. United States, 1920, 251 U.S. 385, 40 S.Ct. 182, 64 L. Ed. 319. Strickland’s argument is premised upon the inadmissibility of his initial incriminating statements, which led to his appearance and testimony before the grand jury. He urges that we adopt a but-for rule to give effect to his Fifth and Sixth Amendment rights, i. e., evidence should be excluded which would not have been discovered but for the improperly obtained statements.

This contention gives us little pause. Strickland’s premise is undercut because, in the circumstances which have been related, his initial incriminating statements made on August 27, 1972, were found to be admissible. Moreover, it is undisputed that he was fully advised of his constitutional rights before testifying before the grand jury on September 14, 1972. Assuming, arguendo, that Strickland’s initial admissions were tainted, the connection between the admissions and the grand jury testimony had “become so attenuated as to dissipate the taint.” Nardone v. United States, 1939, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307.

The but-for argument of Strickland was put to rest in Rogers v. United States, 5 Cir. 1964, 330 F.2d 535, where, in speaking of Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, we said:

In Wong Sun, were it not for the arrest, it is clear that no statement would have been made. But the Court found it improper to “hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.” 371 U.S. at 487-488, 83 S.Ct. at 417, 9 L.Ed.2d 441. The Court seemed to indicate the necessity for the intervention of a clear act of free will on the part of the defendant in order to purge the evidence of its stigma.

Id. at 541.

We find that there was sufficient evidence of free will to conclude that any arguable taint in the initial admissions made on August 27, 1972, could not have infected the grand jury testimony of September 14, 1972. See Samora v. United States, 5 Cir. 1969, 406 F.2d 1095; Thomas v. United States, 5 Cir. 1967, 377 F.2d 118, cert. denied, 389 U. S. 917, 88 S.Ct. 246, 19 L.Ed.2d 273.

Strickland’s next contention, that there is insufficient evidence independent of his admissions to support the verdict, is without merit. In the seminal case of Opper v. United States, 1954, 348 U.S. 84, 93, 75 S.Ct. 158, 164, 99 L.Ed. 101, the Court stated “the better rule to be that the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti.” In this case there was more than sufficient “independent evidence which would tend to establish the trustworthiness of the statement,” and it adequately supported “the essential facts admitted sufficiently to justify a jury inference of their truth.” Id. at 93, at 164 of 75 S. Ct. See Andrews, supra at 129 of 309 F.2d. There was documentary evidence to establish Strickland’s trip to Jamaica and his stay at the Playboy Club in Ochos Rios. His trip to New York and his stay at the two hotels were proven by the hotel’s records; his calls to Vario are recorded on his hotel bills, and his statement that Vario is in the Mafia was confirmed. That he was shot, robbed and taken to the hospital was proven aliunde the admissions. All of this adds up to more than adequate corroboration. United States v. Frazier, 5 Cir. 1970, 434 F.2d 994. Cf. United States v. Khandjian, 5 Cir. 1974, 489 F. 2d 133.

Finally, Strickland urges us to reverse his conviction because of improper venue in the Northern District of Georgia. He concedes, as he must, that venue in a conspiracy case may be laid in the district where the conspiracy was formed, as well as in any district where an overt act in furtherance of the conspiracy took place. Hyde v. United States, 1912, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114; Ladner v. United States, 5 Cir. 1948, 168 F.2d 771; Pullin v. United States, 5 Cir. 1939, 104 F.2d 57. The evidence sub judice was more than adequate to show that the conspiracy, while originally discussed in Jamaica, was carried out by overt acts in Atlanta. Strickland called Vario in New York from Atlanta on August 16, 1972, as had been agreed upon in Jamaica. Strickland telephoned a person in Atlanta from New York with instructions to obtain $48,230 from Strickland’s attic and to bring it to New York. This money was to be used to purchase two kilos of heroin from Vario and his confederates, and it was this money which was taken from Strickland before he was shot. The telephone calls and conversations to and from Atlanta were overt acts. Singer v. United States, 6 Cir. 1953, 208 F.2d 477, 480; Bartoli v. United States, 4 Cir. 1951, 192 F.2d 130, 132; Smith v. United States, 9 Cir. 1937, 92 F.2d 460, 461. And these overt acts were “committed in pursuance of the agreement.” United States v. Agueci, 2 Cir. 1962, 310 F.2d 817, 828, cert. denied, 1965, 372 U. S. 959, 83 S.Ct. 1016, 10 L.Ed.2d 12. Consequently, we find no merit in Strickland’s contention that venue laid in the Northern District of Georgia was improper.

The judgment of the district court is

Affirmed.

      . Strickland also argues that there was improper venue, insufficiency of evidence to corroborate admissions, evidentiary error, and that evidence should have been suppressed as the fruit of illegally obtained confessions.

      . We find without support in the record and therefore without merit Strickland’s argument that on August 27, 1972, he was the focus of a narcotics investigation. On the contrary, he was not in custody and was not suspected of committing any crime. Attention was focused on Strickland because he was the victim of a crime and not a suspect. In these circumstances, no Miranda warning was necessary, nor were his rights to counsel under Escobedo impaired,


author: RONEY, Circuit Judge:

text:
    Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. LAUDERDALE YACHT BASIN, INC., and Glen H. Friedt, Individually, Defendants-Appellees.
    No. 73-1056.
    United States Court of Appeals, Fifth Circuit.
    April 26, 1974.
    Carin Ann Clauss, U. S. Dept, of Labor, Richard F. Schubert, Sol. of Labor, Donald S. Shire, Atty., U. S. Dept, of Labor, Washington, D. C., Beverley R. Worrell, Regional Sol., U. S. Dept, of Labor, Atlanta, Ga., Edwin G. Salyers, Sandra P. Bloom, Attys., U. S. Dept, of Labor, Washington, D. C., for plaintiff-appellant.
    John L. Britton, Miami, Fla., for defendants-appellees.
    Before BELL, COLEMAN and RO-NEY, Circuit Judges.
   RONEY, Circuit Judge:

This is a Fair Labor Standards Act case involving yacht salesmen at the defendants’ marina and boat yard. The salesmen work irregular hours and are paid strictly on a commission basis. The District Court held there could be no violations of the minimum pay and overtime provisions of the Act because the total commissions paid to the salesmen annually were sufficient to include the $1.60 statutory minimum for all hours up to forty a week and time and a half or $2.40 for all overtime hours. Holding that the District Court erroneously equated the minimum wage with the regular rate of pay in deciding whether overtime might be due under the Act, we reverse and remand for further proceedings.

Section 7(a) of the Act requires that an employee must receive compensation for hours worked in excess of forty per week “at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C.A. § 207(a)(1). The District Court thought there could be no violation of the Act if the employee’s actual compensation was more than what his annual earnings would be if computed at the statutory minimum wage and overtime compensation rates for the hours worked.

These people are not the people that [the FLSA] was designed to protect. [I]f Mr. Johnson had been paid the minimum wage, assuming he worked 50 hours a week, [for] 42 weeks out of the year, he was paid so far in excess of any standard hourly wage, at twice the minimum. His overtime was way over what the minimum overtime would be.

The Court thus focused on only one purpose of the Act: to raise substandard wages. Another fundamental purpose of the Act is to spread employment, induce worksharing, through the financial pressure applied when time and a half regular pay is required for overtime work. In Overnight Motor Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682 (1942), the Supreme Court reviewed this Congressional purpose in interpreting Section 7(a) of the Act to require overtime compensation at time and a half regular pay, where that pay is above the minimum, as well as where the regular pay is at the minimum:

“[0]ne of the fundamental purposes of the Act wás to induce worksharing and relieve unemployment by reducing hours of work.” We agree that the purpose of the Act was not limited to a scheme to raise substandard wages first by a minimum wage and then by increased pay for overtime work. Of course, this was one effect of the time and a half provision, but another and an intended effect was to require extra pay for overtime work by those covered by the Act even though their hourly wages exceeded the statutory minimum. The provision of § 7(a) requiring this extra pay for overtime is clear and unambiguous. It calls for 150% of the regular, not the minimum, wage. By this requirement, although overtime was not flatly prohibited, financial pressure was applied to spread employment to avoid the extra wage and workers were assured additional pay to compensate them for the burden of a workweek beyond the hours fixed in the Act. . . . The existence of such a purpose is no less certain because Congress chose to use a less drastic form of limitation than outright prohibition of overtime. We conclude that the Act was designed to require payment for overtime at time and a half the regular pay, where that pay is above the minimum, as well as where the regular pay is at the minimum. '

316 U.S. at 577-578. See Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 40, 65 S.Ct. 11, 89 L.Ed. 29 (1944).

The concept that the overtime compensation requirements of the Act are not met when the employer merely pays compensation in excess of that computed at the minimum rates has been consistently upheld:

Petitioner urges that it complied with the overtime compensation requirements of the Act because respondents received wages in excess of the statutory minimum wage, including time and one-half of that minimum wage for all overtime hours, which wages respondents impliedly agreed included overtime compensation by accepting them. A similar argument was squarely rejected in Overnight Motor Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682.

Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 93, 63 S.Ct. 125, 87 L.Ed. 83 (1942). See Nunn’s Battery & Electric Co. v. Goldberg, 298 F.2d 516 (5th Cir. 1962).

The District Court’s misapplication of the law erroneously terminated the Government’s case without a decision on the controlling issues. The Secretary of Labor filed this suit pursuant to 29 U.S.C. A. § 217 to enjoin the Lauderdale Yacht Basin, Inc. from violating the minimum wage, overtime, and recordkeeping requirements of 29 U.S.C.A. § 206(a)(1) and 207(a)(1) and to restrain the continued withholding of unpaid overtime compensation due certain of its salesmen for the year 1970. The case was tried to the District Court on a stipulation of issues:

(a) Whether or not those persons working at defendants’ establishment in connection with the selling of boats, yachts and other seagoing vessels were employees of the defendants or were independent contractors.
(b) If said persons referred to above were employees of the defendants, did the defendants compensate these employees in accordance with the minimum wage and overtime requirements of the Act and keep proper records of the number of hours worked by said persons.
(c) If said persons were employees and were not compensated in accordance with the Act, the amounts due these employees in back wages.
(d) Whether or not the Court should enjoin future violations of the defendants and restrain further withholding of back wages.

The difficult issue in this case revolves around the irregularity of payments to defendants’ employees, who were paid only if and when they earned commissions by selling yachts. We decline, however, to render an opinion at this juncture as to the proper formula to be used in such a case. We decide only that an employer is not in effect exempt from the payment of additional overtime merely because the annual payment an employee receives exceeds minimum wage and minimum rate overtime payments. We cannot properly decide the other issues in the case, because the trial court made no findings of fact. On remand, the issues specifically stipulated for trial should be decided.

First, a determination should be made as to whether the affected salesmen are employees of the Lauder-dale Yacht Basin or whether they are independent contractors. Since the purpose of the Act was to provide coverage for employees engaged in interstate commerce, Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296 (1945), a factual finding that the salesmen are not employees would preclude further inquiry. The Act would not be applicable.

Second, if the salesmen are found to be employees, the District Court must consider the terms of the employment arrangement. Specifically, it must be determined if the parties agreed that the commissions earned would include compensation for any overtime worked during the pay period.

Third, the District Court must determine if the employee-salesmen worked in excess of forty hours per week and, if so, the number of excess hours worked. There can be no violation of 29 U.S.C.A. § 207 pertaining to overtime if no overtime hours were worked.

Fourth, if any employee-salesman did work overtime the District Court must determine if the yacht basin compensated him in accordance with the requirements of the Act. To do this, the District Court must necessarily determine the salesman’s regular rate of pay from which the hourly rate of overtime compensation is computed. The “regular rate” under the Act is an hourly rate even though the employee may receive commission earnings which are computed on other than an hourly basis. The regular rate is determined “by dividing [the employee’s] total remuneration for employment (except statutory exclusions) in any workweek by the total number of hours actually worked by him in that workweek for which such compensation was paid.” 29 C.F.R. § 778.-109 (1971). This ease, however, presents difficulties in applying the formula due to the number of variables involved: fluctuating compensation, fluctuating pay intervals, and deferred compensation which may be difficult to identify as being earned in particular workweeks. The District Court must sort through these variables and adopt some “reasonable and equitable method” to allocate the commission “among workweeks of the period in proportion to the amount of commission actually earned or reasonably presumed to be earned each week.” 29 C.F.R. § 778.120 (1971). In this regard, although invited to do so, we express no opinion as to the correctness of the Government’s proposal that the interval from commission payment to commission payment be used for computation, or whether the trial judge’s annual interval might be appropriate, or whether some other interval is more reasonable and equitable. The District Court must initially make such a determination which will then be subject to review under the same standard as other trial court decisions based upon reasonableness and equity.

Answers to the remaining issues concerning the amount of back pay due each salesman and the necessity of enjoining future wage and hour law violations by the company will flow from these prior determinations.

Reversed and remanded.


author: COLEMAN, Circuit Judge:

text:
    Mrs. Natalie BOLTON, Individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. MURRAY ENVELOPE CORPORATION, Defendant-Appellee.
    No. 73-1856.
    United States Court of Appeals, Fifth Circuit.
    April 26, 1974.
    Rehearing and Rehearing En Banc Denied May 30, 1974.

      Melvyn R. Leventhal, Fred L. Banks, Jr., Jackson, Miss., for plaintiff-appellant.
    Herbert R. Ginsberg, M. M. Roberts, Hattiesburg, Miss., for defendant-appel-lee.
    Before COLEMAN, CLARK and GEE, Circuit Judges.
   COLEMAN, Circuit Judge:

This appeal is from a judgment for defendant, Murray Envelope Corporation (Murray), in a suit alleging racial discrimination in employment practices, Title VII of the Civil Rights Act of 1964, 42 U.S.C., § 2000e.

Plaintiff, Natalie Bolton, a member of the Negro race, brought the charge against Murray, alleging that her employment was terminated as the result of racial discrimination. She also sued in the name of a class composed of all Negro employees, both those terminated and those allegedly improperly detained in menial jobs as a result of the racially discriminatory policies and procedures of the defendant corporation. Murray contends that it has been free of discrimination since 1962 and that Bolton was discharged because of substandard production.

The trial court, sitting without a jury, determined that the individual employee, Mrs. Bolton, and the class she represented had not, in fact, been the victims of racial discrimination. It did order Murray to post notice of its compliance with federal requirements as to integrated facilities.

Murray Envelope Company was established in 1943 with approximately 50 employees and has since grown to its present size of approximately 250-300 employees. Its plant is located in Hat-tiesburg, Mississippi, and draws its employees from that area. Hattiesburg has a population of approximately 40,000 of whom 29% are black; Forrest County, in which Hattiesburg is located, has a population of approximately 58,000, of whom 25% are black.

Murray produces a wide variety of stationery and envelopes in varying sizes. This process requires many machine operators, pressmen, and printing employees, in addition to the normal number of clerical and day laborer positions which accompany any production procedure. Murray admits racially discriminatory practices prior to 1962. However, it contends that in 1962 these were discontinued.

There are no positions at Murray which necessitate prerequisite special training or education. All employees begin as trainees. Murray has employed some people with less than a tenth grade education, but employees of at least that educational level are preferred. The semi-skilled and skilled positions in the company are filled by on-the-job training of the originally unskilled employees. The policy for promotions, according to Murray, is to promote from “within” if at all possible. The testimony reflected, however, that there are no objective, published standards or guidelines for such promotions. Instead, the subjective determination of the supervisory staff is relied upon for both initial job assignments and for subsequent promotions.

Prospective employees at Murray are obtained primarily through the Mississippi Employment Service, “word of mouth” recruitment, and independent, unsolicited inquiries and applications made directly to the company. The testimony reflected that newspaper advertisements had been used in an attempt to obtain skilled machine operators, had been of little success, and were therefore infrequently used.

I

The Named Plaintiff

Mrs. Bolton, the named plaintiff, alleges that she was discharged from her machine operator position as a result of racially discriminatory policies of Murray. Murray contends, however, that Mrs. Bolton was discharged for substandard production. The District Court, upon hearing all the evidence and weighing the credibility of such evidence, found, as a matter of fact, that Mrs. Bolton had been discharged for substandard production.

In Smith v. Universal Services, Inc., 5 Cir., 1972, 454 F.2d 154, there was a conflict in the testimony between an employee and his supervisor as to the reasons for the employee being restricted in singing religious songs at work. The employee contended that the restriction was due to religious discrimination and that this discrimination was the cause for an end of his employment. His supervisor, however, testified that the employee had been restricted from singing for his own protection from other workers. We held that this was a credibility choice and within the discretion of the trial judge as to whom to believe, and that our review was governed by 52(a) F.R.Civ.Pro. In the present appeal, the factual finding that Mrs. Bolton was discharged for inadequate production, like the determination in Smith, supra, is a finding of fact which can be set aside only if it lacks substantial evidence to support it.

The testimony showed that Murray operates two shifts. Mrs. Bolton was the night operator on an open-end machine. The employee who operated Mrs. Bolton’s machine on the day shift testified that her production was consistently 20-25% higher than Mrs. Bolton’s. The daytime operator further testified that she considered herself no more than an average producer. Her comparison of Mrs. Bolton’s work to hers was based upon a daily log which the employees of each machine kept and which remained with the machine during the change of shifts in order that the operators of the same machine could coordinate their production.

There was also testimony from two of Mrs. Bolton’s supervisors as to her substandard production. The supervisors testified that on several occasions Mrs. Bolton had been warned of this but with no subsequent improvement on her part. Mrs. Bolton, however, testified that she had never been warned that her production was considered substandard and that no objective guidelines as to what was average or low production was ever explained to her.

In 1964 Murray had 84 machine operators, of whom only one was black. In 1970 there were 84 whites and 33 blacks. These statistics support the contention that Murray was making a concerted effort to employ black machine operators.

Moreover, the trial judge chose to believe the supervisors as to the continued low production warnings as well as the testimony concerning her substandard production. Hence, we find ourselves, within the four comers of the clearly erroneous rule, unable to overturn these findings.

II

The Class

The affirmance as to the named plaintiff, however, does not invalidate the class action claim, which may be separately reviewed, Huff v. Cass Company of Alabama, 5 Cir., 1973, 485 F.2d 710 (En Banc).

In United States v. Jacksonville Terminal Company, 5 Cir., 1971, 451 F. 2d 418, we held that findings of “ultimate” fact such as whether a series of acts did or did not establish the existence of a violation of Title VII was a legal conclusion and not controlled by the “clearly erroneous” rule. The application of 52(a) in the individual action and its non-applicability to the class determination is illustrated by the following from Jacksonville:

“Based on these general premises, the Government challenges the District Court’s findings of fact and conclusions of law. In this regard, the Government’s quarrel is not so much with the empirical facts actually found by the trial judge as with his selectivity regarding pertinent facts: which merited consideration. Because of his conservative misconceptions as to his proper factfinding role and as to the extent of the Government’s burden of proof, the Government argues, the judge’s perspective was too myopic. Further, he allegedly erred in his findings of ultimate fact (such as con-elusory statements that particular acts, or series of acts, did not establish the existence of discrimination or discriminatory intent as defined in Title VII), as well as his legal conclusions derived from the factual milieu. Insofar as the Government’s attack is predicated on these grounds, the ‘clearly erroneous’ rule is not a bulwark hindering appellate review.” At Page 423.

Appellant does not allege that Murray has discriminatorily hired since the inception of the Civil Rights Act of 1964, but instead alleges that its job assignment, promotion, and termination procedures have discriminated against blacks as a class. As to this we may be guided by several firmly established concepts. First, we note that the amount of discrimination is irrelevant, Rowe v. General Motors Corporation, 5 Cir., 1972, 457 F.2d 348. It is also clear that employer motive is not a justification for procedures which produce discriminatory results. As we said in Rowe, supra:

“It is clearly not enough under Title VII that the procedures utilized by employers are fair in form. These procedures must in fact be fair in operation. Likewise, the intent of employers who utilize such discriminatory procedures is not controlling since ‘Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation’. Griggs v. Duke Power Company, supra, 401 U.S. 432, 91 S.Ct. at 854, 28 L.Ed.2d at 165.” At Page 355.

If the standards, procedures, and policies of the defendant do operate so as to deny blacks better job assignments initially and promotional opportunities in the future, if they restrict blacks to the more menial positions within the employer’s company, and if the discharge rate is significantly higher for blacks than for whites, then the employer must establish that a “business necessity” has been the cause for the apparently discriminatory results of his procedures, Rowe v. General Motors Corporation, supra.

Five legal size pages of intensive, uncontroverted statistics, not appended to this opinion, reveal that an exact comparison of year to year employment figures is not possible. Murray’s operation has not only grown but has also changed to such a degree that job assignments and job categories have varied over the years.

The record clearly shows that assignments to the more menial areas have gone predominantly to blacks while assignments to the more skilled positions have been given to whites. For example, from 1964 to 1970, the number of black porters has almost doubled while the number of white porters has stayed the same. The printing department was all white in 1964 and remained so in. 1970. The same is true for clerical and office workers. Further, the machine adjusters, who approach a very skilled designation and therefore a higher paying position, have decreased in black representation from 1964 to 1970 — nine white and three black to fourteen white and one black. In 1970, 34% of the blacks were in janitorial positions while less than 6% of the whites held such positions.

While it is true that the overall turnover at Murray of both blacks and whites is extremely high, blacks are discharged at twice the rate of whites. This. condition exists in the absence of objective standards to guide both supervisors and employees as to what is expected of the employee.

No mention of these statistically disparate results are found in the District Court’s opinion but their significance cannot be ignored. That significance is magnified when appraised in light of the fact that Murray has little, if any, initial job qualifications requirements. In nearly every situation, the hiring, initial job assignment, and promotion is almost exclusively a subjective determination made by white supervisors. As was said in Jacksonville, supra, 451 F.2d at page 446:

“[I]n some situations, when blacks have been excluded from white jobs for no apparent reason, statistics have carried the day. Because blacks were denied certain jobs regardless of qualifications, little or no corroborating evidence revealing specific instances of post-Act exclusion was necessary. Bing v. Roadway Express, Inc., 5 Cir., 1971, [444 F.2d 687]; Jones v. Lee Way Motor Freight, Inc., 10 Cir., 1970, [431 F.2d 245, cert. denied 1971, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237].”

In addition to the significant statistical disparities between blacks and whites, the record showed that on one occasion a black with a twelfth grade education was hired by Murray and assigned a janitorial position; while only eight days later a white applicant with only a ninth grade education was employed and assigned to a semi-skilled trainee position which offered vastly more opportunity for advancement. The Company explanation for this was that applicants for jobs were automatically assigned whatever was available at the time of their hiring. However, there was evidence of Murray hiring a white employee in one position in order to hold him until an opening in another department became available. When the opening for which the applicant was better suited became available, he was transferred to the new position. There was no explanation as to why this procedure could not have been used to place the black employee with a twelfth grade education in a better position which became available only eight days after he was hired.

The above statistical and specific disparities between white and black employees must be “justified” by proper “business necessity” or a Title VII violation has occurred. See, Griggs v. Duke Power Company, 1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158; Rowe v. General Motors Corporation, supra; United States v. Jacksonville Terminal Company, supra. Murray did not meet the business necessity burden. The only evidence which might justify the disparate results were conclusory statements by Murray that race was no consideration in job assignment and that their policy of immediately placing a new employee in whatever opening is available is racially neutral. This is no explication of a “business necessity” but is only a declaration that facially neutral policies have been used. This is not enough:

“It is therefore clear that employment practices which operate to discriminate against people because of their race, color, religion, sex or national origin, violate Title VII, even though the practices are fair on their face and even though the employer had no subjective intent to discriminate.” Rowe v. General Motors, supra, 457 F.2d 348, 355.

We are compelled, therefore, to hold that the District Court should have held for the class as to Title VII violations and should, accordingly, have formulated an appropriate remedial decree. We remand the case for that purpose, United States v. Georgia Power Company, 5 Cir., 1973, 474 F.2d 906, 926. In the formulation of that remedy, the Court will wish to consult Jacksonville, supra and Rowe, supra, as well as other pertinent authority.

Moreover, the Court will require adequate posting of notices in easily understood language, informing the employees of the desegregation of their restroom and cafeteria facilities.

As to the plaintiff-appellee Bolton, affirmed ; as to the class, reversed and remanded for further proceedings not inconsistent herewith.