author: MATTHES, Senior Circuit Judge. LAY, HEANEY, and BRIGHT, Circuit Judges,

text:
    Louis CUNHA, Appellant, v. Lou V. BREWER, Warden at the Iowa State Penitentiary, Appellee.
    No. 74-1521.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 10, 1975.
    Decided Feb. 7, 1975.
    Rehearing and Rehearing En Banc Denied March 19, 1975.

      Robert N. Clinton, Iowa City, Iowa, for appellant.
    Fred M. Haskins, Asst. Atty. Gen., Des Moines, Iowa, for appellee.
    Before MATTHES, Senior Circuit Judge, and STEPHENSON and WEBSTER, Circuit Judges.
   MATTHES, Senior Circuit Judge.

Petitioner Louis Cunha, an Iowa state prisoner, was found guilty on an information charging him with murder and robbery with aggravation. The robbery took place in a supermarket at Algona, Iowa, at approximately 9:00 p.m. on June 14, 1970. During the robbery, Melvin Bay, the manager of the market, was shot. He died about ten days later from the gunshot wound. The judgment of conviction under which petitioner was sentenced to concurrent terms of life imprisonment for the murder and 25 years for the robbery was affirmed by the Supreme Court of Iowa. State v. Cunha, 193 N.W.2d 106 (Iowa 1971).

On July 9, 1973, petitioner, acting pro se, filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Iowa. Since filing this action, petitioner has been represented by court-appointed attorneys associated with the University of Iowa Law School.

The district court, upon consideration of “the transcripts of the petitioner’s trial, the record on appeal to the Iowa Supreme Court, the decision of the Iowa Supreme Court, and all of the matter submitted to the Court by the petitioner,” denied the petition for habeas corpus relief and dismissed the proceeding. In appealing from the order of dismissal, petitioner presents two basic claims:

(1) There was a total lack of evidentiary support for the convictions so as to deprive petitioner of due process of law in contravention of the fourteenth amendment.

(2) Introduction into evidence of certain other crimes, allegedly committed by petitioner and his companions shortly before and after the Algona robbery, deprived petitioner of a fair trial, in violation of the fifth, sixth, and fourteenth amendments.

Since petitioner attacks the sufficiency of the evidence of guilt and the admission of certain evidence at his trial, it is necessary that we present a summary of the relevant evidence.

On June 11, 1969, four men, A1 Gilroy, Thomas Hinsey, Ronald Kelsey, and petitioner, escaped from the county jail in St. Cloud, Minnesota. The men stole a county squad car parked outside the jail, but they abandoned it a short distance away after removing handcuffs, Mace, and some .38 caliber bullets from the car.

On June 12, a 1961 light-colored Chevrolet station wagon was stolen in Sartell, Minnesota, a community just outside St. Cloud. The car was subsequently recovered in Mankato, Minnesota.

In the late afternoon of the next day, June 13, the four men offered two young girls in Mankato a ride in a light-colored 1961 Chevrolet station wagon. The two girls agreed, and the men accompanied them to social gatherings at two homes in Mankato that evening. During the evening various people saw petitioner with handcuffs and Mace. Moreover, one person heard petitioner tell one of the other escapees to go to the Chevrolet to retrieve an item “under the floormat by the gun.”

On June 13 or 14 a 1963 Chevrolet was stolen in Mankato. It was recovered on June 15 in Garner, Iowa.

In the afternoon of June 14, a Mrs. Beatrice Nelson of West Okoboji, Iowa, discovered that her purse had been rifled in her home and her billfold, with thirty dollars, credit cards, and a driver’s license, had been stolen. That same afternoon petitioner entered a clothing store in the nearby town of Milford, Iowa, and cashed a cheek payable to himself and bearing the apparently forged signature of Mrs. Beatrice Nelson as the payor. In addition, petitioner was seen in Milford that same day in the company of two other men, one of whom was Gilroy.

At 7:00 p.m. on the same day, June 14, several of the escapees committed an armed robbery in a grocery at Spirit Lake, Iowa, a short distance from Milford. A check-out clerk at the store testified to seeing petitioner in front of the store at the time of the robbery, walking back and forth. The robbers stole a car from the immediate vicinity of the store and then abandoned it several blocks away.

Seventy-five minutes later, Gilroy robbed a gas station attendant in Emmetsburg, Iowa, located a short distance from Spirit Lake. The attendant’s wallet was found the next day lying along the road leading east to Algona.

At 9:00 p.m., forty-five minutes after the Emmetsburg robbery, at least two of the escapees entered the Fareway supermarket in Algona. There was evidence that approximately 27 dollars was taken from one cash register till. One of the men, apparently Kelsey, shot Melvin Bay in the abdomen. As stated, Mr. Bay died from the gunshot wound. As at St. Cloud and Spirit Lake, the robbers fled in a car stolen in the immediate vicinity of the crime, abandoned the vehicle a few blocks away, and apparently transferred to another car.

None of the witnesses of the Algona robbery placed petitioner at the scene of the robbery or testified seeing him anywhere in Algona. The only witness for petitioner testified that shortly after 9:00 p.m. the car in which he was riding was passed by a 1965 or 1966 General Motors auto travelling east at high speed. The witness could see two men in the front seat of the speeding car, but could not tell if anyone was in the back seat. No other ear was reported stolen in Algona that night.

The next day, June 15, a green 1960 Chrysler was reported stolen in Garner, Iowa, which is east of Algona. The 1963 Chevrolet stolen in Mankato was recovered in Garner the same day. Among the items law enforcement authorities found in or near the recovered Chevrolet were the can of Mace stolen in St. Cloud, handcuffs, and the billfold of Mrs. Beatrice Nelson.

That same day, June 15, the four escapees met four young girls, Christine Henninger, Paula Campbell, Mary Meighan, and Gwen Green, at a beach in Waterloo, Iowa. The men spent several hours with the girls, swimming and picnicking. Later, in the evening, the four escapees and three of the girls drove to a restaurant in Waterloo called the Grill. At the time the men were driving the 1960 green Chrysler stolen in Garner.

Outside the restaurant the girls became involved in an argument with two “go-go” girls from a local club, Sheila Garoutte and Barbara Hardesty. The men and the three girls got into the Chrysler, but the two go-go girls followed them to the car and continued the dispute. Gilroy and petitioner got out of the car and persuaded the two go-go girls to calm down. One of the girls, Garoutte, testified that, “He [petitioner] told me that they had broken out of jail in Minnesota and they robbed three different places and they shot a man.” Apparently these statements were made to explain to the two go-go dancers why the men did not wish to attract attention in front of the restaurant, since a police officer was sitting in his patrol car across the street. Two of the girls in the car, Henninger and Campbell, testified that such a statement about escape and robberies had been made, although they were unsure whether it was Gilroy or petitioner who had spoken it. Moreover, according to Garoutte, petitioner recounted in detail the circumstances of the shooting. Hardesty, on the other hand, testified that petitioner had told her at the Grill that he had split up from the other three men shortly after the escape and had just met up with them again. During the conversation with the go-go girls the men admitted that the Chrysler had been stolen. Later in the evening petitioner and Hinsey confided to Meighan and Campbell that after their escape they had traveled south through Minnesota in a stolen car.

A few days after the Algona robbery and after the theft of another car, the four men separated, and petitioner eventually surrendered to police in New Bed-ford, Massachusetts. While in custody of authorities in New Bedford, petitioner voluntarily related to police officials that he had been with the other three escapees for four days after the flight from the St. Cloud jail.

Before analyzing the critical facts, we take note that, since this is an action pursuant to 28 U.S.C. § 2254, the scope of our review of the two issues relied upon by petitioner is very limited.

It is settled law that the sufficiency of the evidence to support a state conviction raises no federal constitutional question and cannot be considered in a federal habeas corpus proceeding by a state prisoner. Hendricks v. Swenson, 456 F.2d 503 (8th Cir. 1972); Sinclair v. Turner, 447 F.2d 1158 (10th Cir. 1971), cert. denied, 405 U.S. 1048, 92 S.Ct. 1329, 31 L.Ed.2d 590 (1972); United States ex rel. Cunningham v. Maroney, 397 F.2d 724 (3d Cir. 1968), cert. denied, 393 U.S. 1045, 89 S.Ct. 663, 21 L.Ed.2d 594 (1969). Only where the charge against a defendant is totally devoid of evidentiary support is his conviction unconstitutional under the due process clause of the fourteenth amendment. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961). Consequently, federal habeas relief under § 2254 is available to the state prisoner on the ground of insufficiency of the evidence only if there is no evidence whatever supporting conviction.

It is also fundamental that federal courts possess only limited authority to consider state court evidentiary rulings in a habeas proceeding by a state prisoner. As Judge Webster, now a member of this court, observed in Parker v. Swenson, 332 F.Supp. 1225, 1229 (E.D.Mo.1971), aff’d, 459 F.2d 164 (8th Cir. 1972), cert. denied, 409 U.S. 1126, 93 S.Ct. 943, 35 L.Ed.2d 258 (1973):

This court will not review the wisdom of evidence rulings on petition of writ of habeas corpus. It will limit the scope of its inquiry to an examination of whether federally guaranteed rights have been violated. [Citations omitted.] Only where admission of evidence is so prejudicial as to constitute a denial of due process will federal courts intervene in state proceedings on petition for writ of habeas corpus. [Citations omitted.] Introduction at trial of evidence of prior crimes is a matter of state evidentiary law and thus will ordinarily not be subject to review in federal habeas corpus proceedings.

The thrust of petitioner’s attack upon the sufficiency of the evidence is that no witness placed him at the scene of the Algona robbery and murder. Petitioner therefore asserts that there was no evidence, either direct or circumstantial, to show that he committed the offenses in Algona for which he was convicted. His theory is that the conviction resulted solely from evidence showing commission of other crimes assertedly wholly unrelated to the offenses for which he was charged.

But it is important to observe that the State proceeded in the trial of the case on the theory that petitioner was an aider and abettor of the robbery in Algona. Iowa has provided by statute that aiders and abettors who are accessories before the fact are criminally liable as principals. Iowa Code Annot. § 688.1. Aiding and abetting has been characterized by the Supreme Court of Iowa in the following manner:

To aid or abet means to assent to an act or to lend countenance or approval either by active participation in it or by some manner encouraging it. [Citations omitted.] Guilt of a person charged with aiding and abetting must be determined upon the facts which show his part in the crime and does not depend on another’s degree of guilt. [Citations omitted.]
Mere presence at the scene of a crime is not enough to prove defendant committed the offense or that he did aid and abet its commission. [Citations omitted.]

State v. Daves, 259 Iowa 584, 586, 144 N.W.2d 879, 881 (1966).

The State at trial argued that, although petitioner was not placed at the scene of the robbery and murder by witnesses, there was direct and circumstantial evidence to indicate that he had at least aided and abetted the commission of the crimes at Algona, and therefore was guilty as a principal, by serving as a lookout or guarding at the second getaway car used by the robbers after they abandoned the car they had stolen near the Algona grocery. Thus, it is not necessarily fatal to the conviction of petitioner that there is no evidence that he was at the scene of the crime.

We consider it significant that petitioner’s trial attorney, in arguing his motion for a directed verdict of acquittal, conceded to the trial court:

Obviously there is some evidence to tie him [petitioner] in [to the Algona crimes], but we are not saying there is absolutely no evidence. If we could say that, I think the court would automatically sustain my motion, but I don’t think the evidence can be considered substantial. [Emphasis added.]

Although the evidence of guilt may not be overwhelming, the question on review of this habeas appeal is whether there is any evidence of petitioner’s guilt. We believe there is.

First, there is petitioner’s statement to authorities in New Bedford that he had been with the other escapees during the first four days after the flight from the St. Cloud jail. This admission is uncontradicted direct evidence that he considered himself to have still been a companion of the other three escapees at the time of the Algona robbery.

Of course, presence at or near the scene of the crime is not enough to prove aiding and abetting, but secondly there is petitioner’s statement to the two go-go dancers that the men had escaped from jail, robbed three different places, and shot a man. This admission is direct evidence implicating petitioner in the robbery and murder. Garoutte’s testimony is substantiated, in part at least, by the testimony of two of the girls inside the car. The contrary testimony of Hardesty raises only an issue of credibility, which is not cognizable in a 2254 action.

Finally, there is evidence of other crimes by the four escapees which serves as probative circumstantial evidence that the Algona robbery was part of a common scheme or plan by the four men and that petitioner participated in the commission of the Algona robbery, or aided or encouraged the perpetrators thereof. The Supreme Court of Iowa has ruled that the act of aiding or abetting a crime may be proven in whole or part by circumstantial evidence. State v. Pat-man, 189 N.W.2d 620, 622 (Iowa 1971); State v. Brown, 172 N.W.2d 152, 155 (Iowa 1969):

[Aiding and abetting) is seldom capable of direct proof, but may be inferred from the proven circumstances. Participation in criminal intent may be inferred from presence, companionship and conduct before and after the offense is committed.

From the evidence of petitioner’s conduct, statements, and companionship with the other fugitives both before and after the Algona robbery, the jury could properly infer that petitioner had joined in a common scheme with the other three escapees and that he accordingly aided and abetted the Algona crimes. We find that the record evinces a sufficient quantum of evidence of petitioner’s guilt of the crime charged that his conviction is not in contravention of the due process standards of Thompson v. City of Louisville, supra.

As stated at the outset, the admission at petitioner’s trial of the evidence of other crimes committed by petitioner and his fellow escapees is the basis for petitioner’s second attack upon his state conviction: he asserts that many of the prior crimes shown at trial were irrelevant to the question of his guilt or innocence and served only to deny him a fair trial by prejudicing the jury. We disagree. We believe that the evidence of other crimes was relevant and probative on the question of petitioner’s guilt, and we further find that the admission of this evidence was not so unfair as to deny petitioner due process of law.

The Supreme Court of Iowa has long recognized the generally accepted evidentiary rule that although evidence of other wrongdoing by the defendant, wrongdoing for which he is not on trial, may not be introduced into evidence to show defendant’s bad character or propensity to crime, evidence of other crimes may be admitted when it is relevant and probative on certain issues at trial. See, e.g., State v. Vance, 119 Iowa 685, 686, 94 N.W. 204 (1903):

The state cannot prove against a defendant any crime not alleged in the indictment, either as a foundation for separate punishment or as aiding the proofs that he is guilty of the crime charged. The exceptions to the rule may be classified as follows: Evidence as to other offenses is competent to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others, and (5) the identity of the person charged with the commission of the crime on trial.

Accord, State v. Armstrong, 183 N.W.2d 205 (Iowa 1971). See generally McCormick, Evidence § 190 (2d ed. 1972); 1 Underhill, Criminal Evidence § 206 et seq. (5th ed. 1956).

In reviewing this record for constitutional error, we are constrained to observe that the admission of other crimes is in the first instance a matter within the discretion of the trial judge. The process of determining whether to permit other wrongdoing to be proven at trial

is not merely one of pigeonholing, but one of balancing, on the one side, the actual need for the other-crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility.

McCormick, supra, § 190, at 453.

After reviewing the whole record, we cannot say that the trial judge abused his discretion in allowing the other crimes to be proven, and we certainly cannot say that his decision to admit the evidence in question was such a grievous error as to deny petitioner a fair trial and due process of law.

Considering the evidence in light of the balancing test outlined above, it is apparent that the evidence of other wrongdoing was an important element in the State’s case, serving to corroborate the testimony of the girls that petitioner had admitted complicity in the robbery and murder at Algona. Moreover, the record in no way indicates that the State introduced the evidence of other crimes in such a manner that the jury would be unduly prejudiced against the petitioner. Furthermore, the evidence in question falls within several of the exceptions listed in Vance, exceptions which are universally recognized as appropriate instances for the admission of evidence of other wrongdoing. Thus the evidence was relevant and probative in providing a motive for petitioner’s participation in, or assistance or encouragement of, the Algona robbery. The evidence also indicated a common scheme or plan to obtain transportation and money for travel after escape from jail, and specifically identified petitioner as an aider or abettor or active participant in various crimes of the common scheme. See State v. Brown, supra, 172 N.W.2d at 155.

Petitioner complains that the State’s evidence did not implicate him in every one of the other crimes proven at trial. Generally, in Iowa the competent evidence of wrongdoing is admissible if there is “satisfactory proof that the accused was the person who committed the other acts in question.” State v. Porter, 229 Iowa 882, 886, 294 N.W. 898, 900 (1940). However, proof beyond a reasonable doubt that the accused committed the other crimes is not required. See McCormick, supra, § 190.

It is significant that the State’s evidence tied petitioner, directly or indirectly, to nearly every one of the other major crimes introduced at trial. He was obviously guilty of escape and the attendant crimes. He was implicated in the Spirit Lake robbery. He admitted complicity in at least two car thefts, and the evidence certainly allowed the inference that he participated in the theft of the other cars. He was implicated in the Milford check forgery. Finally, he made the damaging admissions in Waterloo from which the jury could infer his involvement in the Emmetsburg robbery.

To summarize, this is not a case of guilt by association. The evidence of other crimes was not introduced by the State merely to suggest to the jury that petitioner generally was a bad man and therefore likely to have committed the crimes charged, and we do not believe that the evidence had that effect on the jury. Rather, a study of the record shows that the State established a submissible case from which the jury could properly infer that after escaping from jail the petitioner and the other three men embarked together upon a series of criminal acts which culminated in the murder of one of their victims.

Each of the four men was tried before a different jury, and each jury found the evidence sufficient to convict the particular defendant on trial of the Algona robbery and murder. The Supreme Court of Iowa, in four unanimous opinions, concluded in each that the quantum and quality of the proof of robbery and murder had been established, and that the particular defendant had otherwise been accorded a fair trial. The federal district judge, after a studious examination of the record in this case, found that the evidence was sufficient and that the petitioner had not been deprived of any right which constituted a denial of due process. We agree and affirm.

ON PETITION FOR REHEARING EN BANC

The Court having considered petition for rehearing en banc filed by counsel for appellant and, being fully advised in the premises, it is ordered that the petition for rehearing en banc be, and it is hereby, denied.

Considering the petition for rehearing en banc as a petition for rehearing, it is ordered that the petition for rehearing also be, and it is hereby, denied.

LAY, HEANEY, and BRIGHT, Circuit Judges,

dissenting on order.

We dissent from the order denying a rehearing en banc. The prosecutor has presented no evidence that appellantCunha committed any act which aided or facilitated the crimes (murder and robbery with aggravation) for which he was convicted and sentenced to life imprisonment. Although all of the other participants in the crimes for which Cunha was convicted were identified by eye witnesses, no one identified Cunha or even placed him in Algona at the time .of the robbery and murder.

Rather, the prosecutor presented a massive parade of evidence of 12 crimes, unrelated to the robbery and murder committed by the jail escapees. But even as to these other crimes, the testimony did not implicate Cunha in all of them. To a substantial degree, this conviction seems to rest on a principle of guilt by association. We believe the petition for writ of habeas corpus raises a due process issue of sufficient importance to justify a rehearing by the full court.

      . Three other participants in the series of crimes hereinafter discussed were also tried separately and on separate informations for the robbery and murder in Algona. They, too, were found guilty and their convictions affirmed. State v. Gilroy, 199 N.W.2d 63 (Iowa 1972); State v. Hinsey, 200 N.W.2d 810 (Iowa 1972); State v. Kelsey, 201 N.W.2d 921 (Iowa 1972).

      . Petitioner argues that since Garoutte used the word “they” in describing the admission by petitioner, i.e., “He said that they had escaped from jail, etc.,” her testimony indicates that petitioner was accusing the other three escapees of the robberies and murder without implicating himself, since Garoutte did not say that petitioner had used the word “we” in describing the robberies and murder, i.e., “We escaped from jail, etc.”
      But a reading of Garoutte’s whole testimony indicates that she used the word “they” rather than “we” in relating petitioner’s admission simply because she was quoting petitioner indirectly. Thus later in her testimony Garoutte said:
      I remember Gilroy and Cunha both said they didn’t want any heat, they had broken out of jail, robbed three different places and shot a man. .
      This testimony clearly indicates that Garoutte was testifying that petitioner implicated himself in the series of crimes.

      . Indeed, it is not at all clear that the jury would have understood the context and significance of petitioner’s admission that the men had escaped from jail, robbed three places and shot a man unless the jury was aware of the escape and the two robberies prior to the one in Algona.


source: Caselaw Access Project

author: SETH, Circuit Judge.

license: Public Domain

text:
    Anthony M. SALONE, Jr., Appellant, v. UNITED STATES of America et al., Appellees.
    No. 74-1475.
    United States Court of Appeals, Tenth Circuit.
    Feb. 21, 1975.
    Robert B. Smith, of Miskovsky, Sullivan & Miskovsky, Oklahoma City, Okl., for appellant..
    William R. Burkett, U. S. Atty., and John E. Green, Asst. U. S. Atty., for appellees.
    Before LEWIS, Chief Judge, and SETH and MeWILLIAMS, Circuit Judges.
   SETH, Circuit Judge.

Appellant Salone is a civilian employee at the Oklahoma City Air Materiel Area (OCAMA), Tinker Air Force Base, Oklahoma. In April 1972, Salone complained to the Commander of Tinker AFB that his supervisors were discriminating against him because of his race, and in reprisal for a discrimination complaint filed by him some five years previously. This complaint was referred to the agency’s Chief EEO Counselor who interviewed Salone and the witnesses and made recommendations. Further complaints, hearings, and recommendations followed, and in March 1973 Salone was notified by the Director of Equal Employment Opportunity, Office of the Secretary of the Air Force, that his allegations of racial discrimination were not supported by the record. The decision of the Director was affirmed without comment by the Civil Service Commission Board of Appeals and Review.

Having exhausted his administrative remedies through the Civil Service machinery, Salone filed this action in the District Court pursuant to 42 U.S.C. §§ 2000e — 16 and 2000e — 5. He requested a trial de novo on his allegations of discrimination, rather than a review of the administrative record. Defendant filed a motion for summary judgment and asking that the action be dismissed for lack of subject matter jurisdiction.

The trial judge found that review of the administrative record was the procedure required, and that the record showed an absence of discrimination. He then granted the motion for summary judgment, and further found an absence of subject matter jurisdiction.

The only issue presented on this appeal is whether a federal employee filing a civil action under 42 U.S.C. § 2000e-16 is entitled to a trial de novo or judicial review of the administrative record. The statute is silent on this question. 42 U.S.C. § 2000e — 16(c) provides that a federal employee who has a complaint of discrimination based on race, color, religion, or sex may, within certain time limits, “file a civil action as provided in section 2000e — 5 of this title.” Section 2000e — 5 governs civil actions by private employees. 42 U.S.C. § 2000e — 16(d) reads: “The provisions of section 2000e — 5(f) through (k) of this title, as applicable, shall govern civil actions brought hereunder.”

There is no dispute that a private employee filing an action pursuant -to 42 U.S.C. §§ 2000e-5(f) through (k) is entitled to a trial de novo. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. Two early cases applied this holding to actions under 42 U.S.C. § 2000e — 16(c) and concluded that the 1972 amendment to the Equal Employment Opportunity Act was intended to extend to federal employees the same procedure that was available to private employees, and thus a federal employee should be entitled to a trial de novo rather than judicial review of the administrative record. Henderson v. Defense Contract Administration Services Region, New York, 370 F.Supp. 180 (S.D. N.Y.); Thompson v. United States Dep’t of Justice, Bureau of Narcotics & Dangerous Drugs, 360 F.Supp. 255 (N.D. Cal.).

A separate line of cases also developed which maintained a distinction between private and federal employees. These cases relied on decisions concerning discharge of federal employees. In such actions, brought under 5 U.S.C. § 701 et seq., a federal employee is entitled only to review by the federal district court of the administrative record. Trials de novo are not provided. Polcover v. Secretary of Treasury, 477 F.2d 1223 (D.C. Cir.), cert. denied, 414 U.S. 1001, 94 S.Ct. 356, 38 L.Ed.2d 237; Rosenman v. Levbarg, 435 F.2d 1286 (3d Cir.); Dabney v. Freeman, 358 F.2d 533 (D.C.Cir.); Gordon v. Bright, 306 F.Supp. 252 (W.D. Okla.), aff’d 419 F.2d 835, cert. denied, 397 U.S. 1057, 90 S.Ct. 1403, 25 L.Ed.2d 674.

In Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.), the court considered the question whether a federal employee is entitled to a trial de novo after being unsuccessful in administrative agency proceedings on a complaint of employment discrimination. The court considered the history of the 1972 Equal Employment Opportunity Act, the potential burden on the federal judiciary, duplication of the administrative process, prior federal employee discharge cases, and the need for prompt, consistent decisions in discrimination matters, and said: “Viewing the Act and its history broadly, Congress intended to guarantee access to the courts — ‘a civil action’ — to eliminate previous barriers but not to start the process anew.” Thus the court concluded that the Act provided for “access” but once there a trial de novo was not required under 42 U.S.C. § 2000e — 16.

The holding in Hackley was followed in Tomlin v. United States Air Force Medical Center, 369 F.Supp. 353 (S.D. Ohio), and Handy v. Gayler, 364 F.Supp. 676 (D.Md.). The district court for the Northern District of California, relying on Hackley and Handy, reversed its earlier decision in Thompson v. United States Dep’t of Justice, Bureau of Narcotics & Dangerous Drugs, supra, and held that a trial de novo was not required under 42 U.S.C. § 2000e — 16. Thompson v. United States Dep’t of Justice, Bureau of Narcotics & Dangerous Drugs, 372 F.Supp. 762, rev’g 360 F.Supp. 255. No decisions by the United States Court of Appeals on this point have been found.

The legislative history is unclear. Senator Williams interpreted the Act as providing only review of agency (Civil Service Commission) proceedings. 118 Cong.Rec. S2280 (daily ed. Feb. 22, 1972) (History at .1727). Senator Cranston originally agreed with Senator Williams, 118 Cong.Rec. S2287 (daily ed. Feb. 22, 1972) (History at 1744). Later he corrected himself and stated that 42 U.S.C. § 2000e — 16 provides for a trial de novo. 119 Cong.Rec. S1219 (daily ed. Jan. 23, 1973) .

A distinction between federal and private employees is justified for the reasons stated by the court in Hackley v. Johnson, 360 F.Supp. 1274 (D.D.C.), and by the fact that the administrative proceedings relating to Government employees are always handled under the Civil Service system which has developed procedures and standards applicable to such employees. The complaints of the nature here considered should be handled as others, and if they reach the courts, the procedure should be consistent with those under 5 U.S.C. § 701 et seq. Thus there is a valid distinction to be made, and we hold that a de novo hearing is not here required.

The record before us, derived from the Civil Service system hearings and reviews, is detailed, and the facts are thoroughly developed. In the event a trial court should find a need for additional facts on a particular issue, the matter may be remanded.

Our decision in Nickol v. United States, 501 F.2d 1389 (10th Cir.), was filed shortly after summary judgment was granted against Salone. And in any event the opinion of the district judge gives sufficient indication of the facts relied on by him from the administrative record to support his conclusions as to the administrative decision.

The order of the district court affirming the decision of the Civil Service Commission Board of Appeals and Review is affirmed.


author: WEIS, Circuit Judge.

text:
    UNIVERSAL ATHLETIC SALES CO., a corporation v. Larry SALKELD et al. Appeal of Donald E. PINCHOCK et al.
    No. 74-1456.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 9, 1975.
    Decided Feb. 28, 1975.

      Thomas H. Murray, Brown, Murray, Flick & Peekham, Pittsburgh, Pa., Hymen Diamond, Monroeville, Pa., Floyd B. Carothers, Carothers & Carothers Pittsburgh, Pa., Lawrence G. Zurawsky, Pittsburgh, Pa., for appellants.
    Robert D. Yeager, Yeager, Stein & Wettach, Pittsburgh, Pa., Lewis M. Dalgarn, Los Angeles, Cal., for appellee; Nilsson, Robbins, Bissell, Dalgarn & Berliner, Los Angeles, Cal., of counsel.
   OPINION OF THE COURT

Before ALDISERT, WEIS and GARTH, Circuit Judges.

WEIS, Circuit Judge.

A chart picturing approved methods to develop physical prowess on a weightlifting machine leads us to an intellectual exercise in the copyright arena. While weight lifting has the virtue of a rigidly disciplined routine, the copyright law offers, in the main, elusive and nebulous abstractions. And so, while we conclude that the district court erred in finding infringement, we do so without the certainty and satisfaction that accompanies the execution of a perfect “press.”

A basic principle, easy to articulate but difficult to apply, is that the expression of an idea may be protected by copyright but the idea itself cannot. The case at bar presents us with the issue whether the defendants’ expression of a concept, basic to the use of both its product and the plaintiff’s, was so substantially similar as to amount to an infringement.

The individual defendants formed the Super Athletics Corporation in 1971 to manufacture and distribute a multi-station exercise machine designed so that its use brings about the body motions involved in weight lifting. To assist its customers, the defendants prepared a wall chart which utilized sketches, sometimes called “stick figures,” to depict certain exercises performed on the machine together with textual material to explain the specific exercises and weight lifting in general.

The plaintiff, Universal Athletic Sales, is a manufacturer of a similar machine, and in 1969 and 1970 it copyrighted an exercise wall chart which it furnished its customers along with a Coaches’ Training Manual. Alleging that the defendants had infringed its copyrights, the plaintiff moved for and was granted a preliminary injunction against further circulation of the defendants’ chart on April 13, 1972. The order specified that the injunction would issue upon the posting of a $5,000 bond by plaintiff Universal. This condition was not satisfied until April 21, 1972, and in the interim a number of the defendants’ charts were distributed to customers and prospective buyers. At least one additional mailing occurred after the bond had been posted. After a hearing, the district court found the defendants in civil contempt for all the acts of distribution after April 13, 1972 and assessed damages and counsel fees.

The plaintiff then moved for summary judgment, relying upon portions of discovery depositions of various of the defendants, parts of the testimony taken during the contempt proceeding, and an analysis of similarities between the two charts. After argument, the district court filed an opinion granting summary judgment. This appeal was taken from that judgment as well as from the finding of civil contempt.

To establish a copyright infringement, the holder must first prove that the defendant has copied the protected work and, second, that there is a substantial similarity between the two works. The criterion for the latter requirement is whether an ordinary lay observer would detect a substantial similarity between the works. Ideal Toy Corporation v. Fab-Lu Ltd., 360 F.2d 1021 (2d Cir. 1966). Phrased in an alternative fashion, it must be shown that copying went so far as to constitute improper appropriation, the test being the response of the ordinary lay person. Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946). See also Nimmer on Copyright § 143.53 (1973 ed.).

As to the first issue, that of copying, the district court found that, although there was a dispute as to whether the stick figures in the plaintiff’s chart were traced by one Hudson, an employee of the defendants, or were merely copied freehand, the distinction (i. e. between copying and tracing) was not material. Having concluded that there was copying, the court found for the plaintiff.

The court made no specific finding, however, that would meet the second test — that of substantial similarity in the sense of an appropriation of the original work. It did, however, refer to the findings made when the preliminary injunction was issued. At that time, the district judge determined that there was “substantial similarity” between the two charts. After applying the test of whether an average lay observer would so find, the court proceeded to analyze in detail various stick figures, comparing the position of arms, legs, etc. This “dissection” of the two works is an approved way of pinpointing similarities in a search to establish the facts of copying and of access to the copyrighted material where such proof is otherwise lacking.

But, substantial similarity to show that the original work has been copied is not the same as substantial similarity to prove infringement. As the Arnstein case points out, dissection and expert testimony in the former setting are proper but are irrelevant when the issue turns to unlawful appropriation. While “[r]ose is a rose is a rose is a rose,” substantial similarity is not always substantial similarity.

We conclude that the entry of summary judgment in favor of the plaintiff must be vacated because the district court did not find that such a quantum of substantial similarity existed as to constitute an infringement. Ordinarily, a remand to the district court would be required. However, based on an observation of the charts which are in the record, we have concluded that there was no infringement. Since no question of credibility is involved in this phase of the case, the Court of Appeals is in as good a position to determine the question as is the district court. Puddu v. Buonamici Statuary, Inc., 450 F.2d 401 (2d Cir. 1971); Concord Fabrics Inc. v. Marcus Brothers Textile Corp., 409 F.2d 1315 (2d Cir. 1969); Millworth Converting Corp. v. Slifka, 276 F.2d 443 (2d Cir. 1960). See Nimmer on Copyright § 140.

A review of copyright infringement decisions confirms the observation that most cases are decided on an ad hoc basis. Judge Hand aptly expressed the state of the law when he said that “[t]he test for infringement of a copyright is of necessity vague,” Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960), and that “ . . . the line, where-ever [sic] it is drawn, will seem arbitrary . .,” Nichols v. Universal Pictures Corp., 45 F.2d 119, 122 (2d Cir. 1930), cert. denied 282 U.S. 902, 51 S.Ct. 216, 75 L.Ed. 795 (1931). It is necessary, then, that we analyze some of the factors which must enter into a consideration of whether there has been an appropriation, i. e., whether there has been a taking of the independent work of the copyright owner which is entitled to the statutory protection.

From the record in this case, it is obvious that plaintiff’s primary concern was not with defendants’ use of the stick figures but with the ideas that they conveyed. Thus, its expert on damages testified to the cost of obtaining the medical and physiological bases for the various exercises which were illustrated as well as to the expense incurred in sending experts to the customers to convey the information to them via a live demonstration. Underlying Universal’s claim of infringement was a feeling of resentment that the defendants had utilized knowledge which had been secured without their own independent research. In short, it was the protection of the idea that was the foremost consideration of the plaintiff. But, copyright does not protect ideas — only expressions.

It is true that originality is not a prerequisite of copyright, and even a modicum of creativity may suffice for a work to be protected. Nevertheless, between the extremes of conceded creativity and independent efforts amounting to no more than the trivial, the test of appropriation necessarily varies. In this context, there is some philosophical parallel with the standards applicable to the grant of copyright in the first instance.

In discussing copyright eligibility, Nimmer writes: “However, it must be recalled that even most commonplace and banal results of independent effort may command copyright protection provided such independent effort is quantitatively more than minimal ... It appears, then, that there is a reciprocal relationship between creativity and independent effort. The smaller the effort (e. g. two words) the greater must be the degree of creativity in order to claim copyright protection.” Nimmer on Copyright § 10.2.

Other factors which should be considered are the nature of the protected material and the setting in which it appears. Nimmer suggests that “[W]ith respect to commercial documents, for example, the similarity probably must be more extensive than in the case of more artistic works in order to justify a finding of substantial similarity.” Id. § 143.2 at 631. He follows with a footnote observation that “If the quantum of originality is very modest, it may be that ‘more than a “substantial similarity” should be necessary for a finding of infringement,’ Thomas Wilson & Co. v. Irving J. Dorfman Co., 268 F.Supp. 711 (S.D.N.Y.1967).” Id. § 143.2 n. 107 (Supp.1974).

In Gaye v. Gillis, 167 F.Supp. 416, 418 (D.Mass.1958), the court said:

“A copyright does not cover an idea or a system of doing business but only the particular mode of expression of the idea embodied in the copyrighted material. The public is free to use the idea or method of doing business and hence, while the copyrighted description of the idea may not be slavishly copied, the copyright is not infringed by an expression of the idea which is substantially similar where such similarity is necessary because the idea or system being described is the same.”

Having reviewed the law, we now put it aside while we record our impressions as they would appear to a layman viewing the two charts side by side. In so doing, we concentrate upon the gross features rather than an examination of minutiae.

It is difficult to explain all the points of similarity and dissimilarity between the two charts without going into great detail. We give only some of the more obvious ones to indicate the general nature of our reaction to viewing the two. Since there are seldom, if ever, cases dealing with the same materials in litigation of this nature, we do not believe that an extended description would be helpful as precedent. We can only paraphrase the language of Judge Hand in Nichols v. Universal Pictures Corp., supra, 45 F.2d at 123. The more the court is led into the finer points of the drawings, the less likely it is to stand upon the firmer, if more naive, ground of its considered impressions after its own perusal.

The most obvious differences are in color and arrangement. The accused chart is blue and white, and its horizontal dimensions are greater than its vertical ones. The plaintiff’s chart is red and white and is longer vertically than horizontally. The figures in the defendants’ chart are simple, are outlined in blue, contain no facial features, and are rugged in appearance. Each sketch showing an exercise position is accompanied by textual material describing the correct procedure. On the other hand, the plaintiff’s chart has figures which show some minimal facial features, are outlined in black, and were drawn with more delicate strokes. In only a few instances is there descriptive material beside the figures.

The figures in the accused chart show only one body position per sketch. Plaintiff’s chart uses figures with superimposed red lines over the basic position to indicate the changing posture of the body as the exercise proceeds.

Defendants’ chart has a rather exten- ' sive text at the bottom of the chart dealing with general weight-training information, personal weight-training programs, and Super Gym specifications as well as diagrams of two human figures showing the major muscles. None of this material appears on the plaintiff’s chart.

In some of the plaintiff’s sketches tlje exercising figure wears a T-shirt and trunks- — in others only trunks. In the defendants’ chart the abdominal and chest muscles in the figures are emphasized, and only trunks are worn.

The only real similarities are the use of stick figures in both charts and the corresponding positions of the figures for each exercise. The use of stick figures involves only that minimal amount of creativity discussed earlier, and the position of the stick figures must necessarily be similar because both express the same idea. The plaintiff and defendant machines are so similar in operation that the body positions must be similar. In short, a lay observer could not find such a substantial similarity between the two charts as would amount to an appropriation of the plaintiff’s independent work. The ideas are similar, but the expressions are not substantially so.

Our finding that there is no infringement requires that the contempt citation also be set aside. The proceeding here was for civil, not criminal, contempt — a distinction which is most important. A defendant may be punished for criminal contempt for failing to obey an injunction which is later set aside, United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947), but the same result does not follow in a civil contempt proceeding.

The difference in treatment is due to the nature of the civil contempt proceeding. It is not designed to vindicate the court’s authority but to recompense one of the private parties for loss caused by the failure of the other to observe the court’s order. The civil contempt order is strictly remedial. As the Supreme Court said in United States v. United Mine Workers, supra, “[T]he right to remedial relief falls with an injunction which events prove was erroneously issued . . . ” A vacation of the injunction establishes that there was no basis for any claim for loss based on the invalid court order. See Salvage Process Corp. v. Acme Tank Cleaning Process Corp., 86 F.2d 727 (2d Cir. 1936). See also Worden v. Searls, 121 U.S. 14, 7 S.Ct. 814, 30 L.Ed. 853 (1887). Accordingly, the judgment of the court below as to appellants will be vacated, as are the findings and judgment of contempt. Judgment will be entered in favor of the appellants. Costs to be taxed against appellee.

      . The opinion of the district court is reported at 340 F.Supp. 899 (W.D.Pa.1972). Although the complaint alleged that certain weight-training information on the accused chart had been plagiarized from the original manual, the district judge did not decide the question, and plaintiff did not appeal from the failure to decide it. We, therefore, are not faced with an issue of the wall chart’s comprehensive nonliteral similarity to the manual.

      . Hudson was the artist who prepared the chart under defendant Salkeld’s supervision. In his deposition, he stated that the Universal chart was one of his source materials and that he tried to make his work' dissimilar to the Universal version.

      . .We do not overlook the observation in Puddu v. Buonamici Statuary, Inc., 450 F.2d at 402, that “The tests for eligibility for copyright and avoidance of infringement are not the same.”

      . Nimmer points out that “It is entirely immaterial that in many respects plaintiff’s and defendant’s works are dissimilar if in other respects similarity as to a substantial element of plaintiff’s work can be shown Of course, if the points of dissimilarity not only exceed the points of similarity, but indicate that the remaining points of similarity are (within the context of plaintiff’s work) of minimal importance either quantitatively or qualitatively, then no infringement results.” § 143.2 at 632.

      . For a discussion of infringement of copyrighted drawings in a more “artistic” setting, see the opinion of Judge Campbell in Esquire, Inc. v. Varga Enterprises, Inc., 81 F.Supp. 306 (N.D.Ill.1948), modified 185 F.2d 14 (7th Cir. 1950).

      . Universal also filed a suit for a patent infringement of the training machine itself, but that case is not before us here.

      . The defendants have appealed from the finding of contempt as well as the summary judgment establishing infringement. In view of our disposition of the issues, we need not decide whether the mailings that occurred before the posting of the bond violated the preliminary injunction.

      . Since the defendant Salkeld did not appeal, the judgments against him will not be affected by this opinion.


author: ALDISERT, Circuit Judge.

text:
    UNITED STATES of America v. Nelson G. GROSS, Appellant.
    No. 74-1697.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 10, 1974.
    Decided Feb. 19, 1975.

      James D. Crawford, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellant.
    Jonathan L. Goldstein, U. S. Atty., John J. Barry, Richard S. Zackin, William T. Pizzi, Asst. U. S. Attys., Newark, N. J., for appellee.
    Before ALDISERT, ADAMS and HUNTER, Circuit Judges.
   OPINION OF THE COURT

ALDISERT, Circuit Judge.

Nelson G. Gross appeals from a final judgment of sentence following a jury verdict on a five-count indictment charging aiding and assisting the filing of a false and fraudulent tax return, obstruction of justice, subornation of perjury before a grand jury and two counts of conspiracy. 26 U.S.C. § 7206(2) and 18 U.S.C. §§ 1503, 1622, 371. Although appellant has presented thirteen issues for review, only certain merit discussion.

I.

Testimony was adduced at trial which, when taken in the light most favorable to the verdict winner, indicates the following: In July, 1969, Gross had a number of discussions with William Preis, president of Stop & Save Trading Stamp Corporation, pertaining to a possible $25,000 company contribution to William Cahill’s gubernatorial campaign. When Preis stated that the company could not pay that much in cash, Gross proposed an “easy solution”. Gross stated that if Preis agreed to make a $5,000 contribution by check, Gross would arrange to furnish Stop & Save with a bill for services rendered. Gross told Preis that “since it would be passed through as an operating expense it would become tax deductible, and it would actually only cost you half as much”. (T. 1911-12). Gross assured Preis that, if the transaction were discovered, the worst that would happen would be a disallowance of the deduction by the Internal Revenue Service. In September, 1969, pursuant to this arrangement, Preis disguised a $5,000 contribution to Cahill’s campaign as a business expense, utilizing a fictitious invoice from Writers Associates.

In the winter of 1972-73, the United States Attorney’s office began investigating political activities in Bergen County, New Jersey. A federal grand jury issued a subpoena to Stop & Save in March, 1973, requiring the corporation to produce all records relating to Writers Associates. Thereafter, Preis met with Gross and, displaying the invoice and the grand jury’s subpoena, asked, “Where do we go from here?” (T. 1993). Gross responded that the invoice represented payment for services rendered relating to a certain demonstration against an anti-trading stamp bill which had been pending in the New Jersey Legislature. Preis then asked Gross, “Why don’t I just plain tell them the facts as they are, that it was a plain contribution?” (T. 1999). Gross replied, “You can’t, because if you do at this late stage of the game, you will immediately be cited for conspiracy and for fraud.” (Ibid.). Preis, accompanied by corporate counsel Leonard Wolfram, met with the United States Attorney and one of his assistants on April 12, 1973. When shown the invoice and asked what services had been rendered, Preis responded with the contrived story about the demonstration. The government prosecutors informed Preis that they did not believe him and invited him to “rethink the whole story, get . . good outside criminal counsel, . . . prepare to come back . . . and . . . appear before the Grand Jury [and] be very careful to tell the truth . .” (T. 2001). Later that day Preis met Gross and recited the events that took place in the United States Attorney’s office. In response to Preis’ need for outside criminal counsel Gross said, “You don’t have any need for outside criminal counsel because I am it .. Perjury is one of the hardest criminal cases there is to prosecute and to prove, because . . . one of the ingredients and requirements of a perjury charge is to have someone get up and face you, challenge you, and claim that your statement was an out and out lie, and there is just nobody who can do that The only ones that really know the story behind this is [sic] myself and Joe McCrane. And I happen to know that Joe McCrane is going to plead the Fifth when he comes up for his hearing, and certainly I’m not going to tell .. [S]o you have nothing to worry about for perjury .... They have no evidence of any kind. You have nothing to worry about. You can go right back and tell that same story, and you will get off absolutely free.” (T. 2008— 09).

On April 17, Preis appeared before the grand jury and testified that a Stop & Save check in payment of the Writers Associates’ invoice represented payment to a group of women who demonstrated at the State Capitol in Trenton, New Jersey. Preis was later indicted for making false declarations before the grand jury, 18 U.S.C. § 1623. On advice of new counsel, he pleaded guilty to the indictment, and received permission to go back to the grand jury and tell the truth about his and Gross’ participation in the Cahill campaign. (T. 2021-31). The indictment against Gross followed.

II.

Count V of the indictment charged Gross with “suborn[ing] . . Preis to commit perjury, as that crime is defined in Section 1623 of Title 18,” in violation of 18 U.S.C. § 1622. Appellant attacks his conviction on this count on alternative grounds. He contends that Count V of the indictment must be dismissed because Congress has not made subornation to make a false declaration a crime. Alternatively, appellant takes the position that, if such subornation is a crime, the court erred in refusing to charge the time-honored “two-witness rule.”

We begin our analysis with the recognition that there are distinctions between the crime of general federal perjury, 18 U.S.C. § 1621, and the recently-created crime, “False declarations before grand jury or court”, 18 U.S.C. § 1623.

One difference concerns “[t]he general rule in prosecutions for perjury [under § 1621] . . . that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment as perjury.” Hammer v. United States, 271 U.S. 620, 626, 46 S.Ct. 603, 604, 70 L.Ed. 1118 (1926). Weiler v. United States, 323 U.S. 606, 610, 65 S.Ct. 548, 550, 89 L.Ed. 495 (1945), reiterated the Hammer holding and reemphasized: “The rule has long prevailed, and no enactment in derogation of it has come to our attention. The absence of such legislation indicates that it is sound and has been found satisfactory in practice.”

Legislation did come forward, however, in the Organized Crime Control Act of 1970, of which 18 U.S.C. § 1623 is a part, Title IV, Section 401(a), October 15, 1970, 84 Stat. 932. The Act makes it a crime for one to knowingly make “any false material declaration” before any court or grand jury of the United States. Section 1623(e) specifically provides: “Proof beyond a reasonable doubt under this section is sufficient for conviction. It shall not be necessary that such proof be made by any particular number of witnesses or by documentary or other type of evidence.”

The legislative history discloses: “This title [Title IV, False Declarations] is intended to facilitate Federal perjury prosecutions and establishes a new false declaration provision applicable in Federal grand jury and court proceedings. It abandons the so-called two-witness and direct evidence rule in such prosecutions and authorizes a conviction based on irreconcilably inconsistent declarations under oath . . . .” 1970 U.S.Code Cong. & Ad.News pp. 4007, 4008.

Abolition of the “two-witness rule” for prosecutions under § 1623 is not the only distinction between the two statutes. As we noted in United States v. Lardieri, 497 F.2d 317, 320 (3d Cir. 1974), rev’d in part on other grounds on rehearing before original panel, 506 F.2d 319 (3d Cir. 1974), Congress chose to provide different mens rea elements: “Unlike the general perjury statute, § 1623 requires that a false statement be made ‘knowingly,’ rather than ‘willfully.’ ” Also, in § 1623 Congress expressly limited the tribunals before which the oath is taken.

Realizing that the general perjury and false declaration statutes have certain differences, appellant would have us hold that, without perjury as defined in § 1621, there can be no subornation of “such perjury” under § 1622. Brief at 30. We reject this unduly narrow interpretation of the subornation statute.

Section 1622 provides: “Whoever procures another to commit any perjury is guilty of subornation of perjury ..” The express language of this statute embraces the procuring of another to commit “any perjury,” not just “such perjury as defined in § 1621.” While it is clear that the perjury and false declaration statutes are not equivalents, it is equally clear that § 1623 is a species of perjury. Indeed, as previously rehearsed, the intent of § 1623 was to “facilitate Federal perjury prosecutions.” 1970 U.S.Code Cong. & Ad. News, supra, at p. 4008. Therefore, we hold that the words “any perjury” in § 1622 include the making of any false declaration under § 1623.

Having disposed of appellant’s statutory crime argument, we turn to his “two-witness rule” contention. Appellant concedes, as he must, that Congress eliminated the two witness requirement for prosecutions under the false declaration statute, § 1623. However, he somehow believes that the crime of subornation of a false declaration, in violation of 18 U.S.C. § 1622, requires corroboration.

Had appellant been indicted for subornation to commit perjury under the general perjury statute, § 1621, his argument would have had force. An essential element of this crime is proof that perjury was committed; and “[t]he general rule in prosecutions for perjury is that the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused set forth in the indictment as perjury.” Hammer v. United States, supra, 271 U.S. at 626, 46 S.Ct. at 604 (emphasis added). “To hold to the [two-witness] rule in perjury and to deny its application in subornation cases would lead to unreasonable results.” Ibid, at 628, 46 S.Ct. at 605. Thus, Hammer held that the same rule of evidence must apply to both crimes — perjury and subornation of perjury.

But that is not this case. Here appellant was indicted for suborning Preis to make a false declaration before a grand jury. Section 1623 expressly abrogates the traditional “two-witness” rule. To deny this rule’s application in § 1623 prosecutions and to require' its application in false declaration, subornation prosecutions would undeniably lead to unreasonable results. Using the words of the Court in Hammer: “Obviously the same rule of evidence in respect of establishing the falsity of the matter alleged as [a false declaration] must apply to both.” 271 U.S. at 628, 46 S.Ct. at 605.

III.

The grand jury did not name Anthony Statile as a co-conspirator in Count I, nor did it name either Statile or Joseph McCrane as a co-conspirator in Count III. It did name McCrane as an unindicted co-conspirator in Count I. Both counts did recite that appellant and the named co-conspirators had conspired with each other “and with others.”

On February 5, 1974, the government informed appellant by letter that it might offer proof that Statile was a Counts I and III co-conspirator. A letter dated February 21 notified appellant that McCrane similarly might be linked as a co-conspirator under Count III.

Selection of the jury commenced on February 26. Two and one-half days later, immediately after completion of the selection, appellant moved to require the government to disclose if in fact it was going to name Statile and McCrane as co-conspirators. After receiving an affirmative oral response from the government, appellant argued that (1) the addition of the names constituted a fatally improper amendment to the indictment and that (2) he was not accorded sufficient time to prepare his defense. The district court rejected these arguments. Appellant reasserts them before us.

We do not write on a clean slate on the issue of amendment or variance of an indictment. United States v. Radowitz, 507 F.2d 109 (3d Cir., 1974); United States v. Goldstein, 502 F.2d 526 (3d Cir. 1974) (in banc); United States v. Somers, 496 F.2d 723 (3d Cir.), cert. denied 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974); United States v. De Cavalcante, 440 F.2d 1264 (3d Cir. 1971). We have previously reviewed the various functions of an indictment, United States v. Goldstein, supra, and have held that the precise inquiry is whether the change in the indictment is substantial or material, and not merely one of form. Ibid. 502 F.2d at 528. We conclude that the addition of Statile and McCrane “did not so change the basic theory of the alleged conspiratorial agreement as to constitute an amendment to the indictment.” United States v. De Cavalcante, supra, 440 F.2d at 1272 (footnote omitted).

Appellant’s claim of insufficient time to prepare his defense must be tested in terms of actual or potential prejudice.

We now dispose of the contention relating to the addition of McCrane’s name. He was inexorably intertwined with the specific allegations of the Count I conspiracy and with the government’s theory of the subornation charge.

Specifically, appellant asserts that the addition of McCrane as a Count III co-conspirator enabled the government to get into evidence the fact that McCrane had exercised his Fifth Amendment right before the grand jury. The court, in the proper exercise of its discretion, admitted the evidence, with the appropriate cautionary instructions, for the specific and limited purpose of corroborating Preis’ unobjected to testimony that Gross had said: “And I happen to know that Joe McCrane is going to plead the Fifth when he comes up for his hearing ... .” (T. 2009, 2632, 2779-81, 2863-64). Because the court did not admit this evidence under the co-conspirator’s exception to the hearsay rule, we fail to see how this prejudiced appellant.

Without alleging any specific prejudice from the addition of Statile, appellant contends that he was somehow hamstrung in preparing his case for trial. Statile succeeded Gross as Republican Chairman of Bergen County. Jack Slavitt, a Newark lawyer, was solicited in 1970, along with others, to pay outstanding bills of appellant’s campaign. He agreed to make a contribution in the amount of $1,000. Subsequently, he received a Mailmar invoice in the amount of $1,015. Mailmar was a printing company. Accompanying the invoice was a letter from Statile requesting Slavitt to send his check, which was made payable to Mailmar, directly to him at “GOP headquarters.” (T. 1027). It is in the Slavitt situation that Statile’s participation really surfaces. The government offered this testimony to connect co-conspirators, Statile and Gross, with the use of Mailmar to mask political contributions.

We have some difficulty in perceiving the exact thrust of appellant’s argument. We do not believe that he has demonstrated, by brief or at oral argument, how the addition of Statile as a co-conspirator altered the reception of this or other evidence referring to Statile’s participation.

Appellant received informal notice of the possible addition of Statile three weeks before trial. No motion was made by appellant before the jury was selected to determine whether the government definitely intended to add Statile. After it was determined that Statile was to be added, appellant made no motion for a continuance. See United States, v. Somers, supra, 496 F.2d at 746. Slavitt’s testimony describing Sta-tile’s participation was completed on March 4; appellant did not open his defense until ten days later. Cf. ibid.

We conclude, therefore, that appellant did have time to react to Statile’s addition and that the preparation of his defense was not adversely affected thereby.

IV.

Appellant argues that the trial court abused its discretion in permitting him to be cross-examined as to his income and as to certain financial statements he had filed. We find no abuse. The government’s case was built largely on the testimony of Preis, President of Stop & Save, corporate counsel Leonard Wolfram and the wealthy industrialist Bernard Striar. It was one of the pillars of the Gross defense, from the opening statement to the summation, that Gross was an insignificant person, and that these powerful men could not have been influenced by him. Thus, in the opening statement of the defense, the jury was told:

The Gross firm was only little counsel. Nelson Gross was not a mastermind here. He was a private in William Preis’ army.
* * * * * *
He [Gross] was only one in the Preis army of trying to convince legislators that it really isn’t a good thing for the State of New Jersey to pass legislation which will seriously affect trading stamps.

(T.748, 752-53).

In the government’s case, Preis and Wolfram were cross-examined by Gross’ counsel about their salaries, deferred income, life insurance benefits, executive incentive bonuses and stock option plans. By cross-examination, appellant developed that Grand Union, the parent company of Stop & Save, had a net worth of millions and annual sales of more than a billion dollars. Striar was also cross-examined about his finances and his company’s profits.

During the summation of the defense, the jury was told:

I say to you that William Preis, the Number 3 man in this million dollar corporate complex of Grand Union, the man who by his own testimony built this Triple S blue stamp operation up from nothing in 25 years to where it is today, is the man who by his own testimony was the general in the operation to combat and stamp out legislation wherever it might crop up that would vitally affect his business.
% if: s|c s): sf:
It defies common sense, and it’s an insult to your intelligence for him to say to you that in this one sphere he deferred to Nelson Gross who concocted the idea in 1969 of a phony campaign contribution and in 1973 directed him and counseled him to lie to Mr. Goldstein and the Grand Jury.

(T. 4532-33).

It is the government’s position, and we agree with it, that once the juxtaposition of financial net worths was introduced in the case, it was proper for the government to elicit testimony from Gross seeking to demonstrate that he was not so financially insignificant as he purported to be. (See T. 4126-28).

Upholding comparable trial strategies, this court, in United States v. Lowe, 234 F.2d 919, 922 (3d Cir.), cert. denied, 352 U.S. 838, 77 S.Ct. 59, 1 L.Ed.2d 56 (1956) (footnote omitted), speaking through Judge Goodrich, added an appropriate literary touch: “When a party opens up a subject, even though it may not be strictly relevant to the case, he cannot complain on appeal if the other side gives him a Rowland for his Oliver.”

Tangential to this issue is appellant’s contention that it was plain error for the court to permit the government to cross-examine him concerning his sworn statement of receipts and expenditures filed as a 1970 candidate for the United States Senate. This statement was required by the Federal Corrupt Practices Act, 2 U.S.C. § 241 et seq. Gross argues that an issue of possible violation of this act was placed before the jury on cross-examination, albeit without a timely objection being raised. The government justifies its use as a means to impeach appellant’s credibility.

Gross testified on direct that he had never heard of the Mailmar Printing Company through the time of the November, 1970 election. In the Corrupt Practices Act statement, Mailmar was listed as one of the firms for which he, in October, 1970, expended funds for his campaign. This was fair game for the jury on the issue of credibility. Indeed, had there been a timely objection to this particular use of the statement, we believe that the court would have properly exercised its discretion if it had admitted it. As to this issue the probative value df the testimony outweighed any accompanying prejudice.

We are less certain of the purpose and propriety of using the statement as a foundation for the questions concerning the amount of monies received during the campaign from various sources, the number of additional campaign accounts that Gross had, and Gross’ knowledge or expenditures by the various campaign accounts in his behalf. These questions surrounded the Mailmar inquiry. Because we are of the view that the use of the statement as to Mail-mar would have been a proper exercise of discretion, we do not believe that these few additional questions, in the absence of a timely objection, were so prejudicial as to require a new trial.

Appellant argues that the Assistant United States Attorney went far beyond the bounds of permissible closing argument and disclosed the real purpose of admitting the sworn statement — that appellant violated the Federal Corrupt Practices Act. The prosecutor said:

Why do we bring out the conflict — the senatorial campaign statement? Because it is eloquent testimony to the way this defendant views the laws of the United States.

(T. 4826). Immediately following this question and representation, the prosecutor went on to say:

It is eloquent testimony to what he considers an oath to be, and the oath I’m going to read you concerns just the expenditures because that really is the important part of this document.
Sjt * * + He #
The important part of this document that was sworn to, signed and subscribed to, read as he himself told you, and read carefully, was, Number 1, Mailmar. He denied ever knowing Mailmar.

(T. 4826-27).

Referring to an unreported campaign contribution by appellant’s law partnership, the Assistant United States Attorney added:

•That was a direct contribution that had to be reported under the laws of the United States, even then.

(T. 4827). Shortly afterward, in referring to appellant’s statement on cross-examination that he had “avoided” the Corrupt Practices Act, the Assistant United States Attorney concluded:

Nelson Gross, to sum it up in his own words, avoids the law, he violates the law, he is guilty of the crime charged beyond any reasonable doubt in this case.

(T. 4828-29).

These remarks seem to us to go beyond merely attacking appellant’s credibility through comment on how he viewed an oath, and appear to constitute an argument that appellant’s alleged violation of the Corrupt Practices Act was a matter which the jury could consider in determining the guilt, or innocence on the crimes charged. The last statement quoted above is particularly troublesome, because it seems to twist Gross’ statement that he “avoided” the Act into an admission that he had violated it, and to make further implication that he is therefore guilty of the crime charged.

Defense counsel failed to object at the time these statements were made; consequently, we can reverse only if the statements constituted plain error. United States v. Somers, supra, 496 F.2d at 742. We have concluded that they did not constitute plain error. Nevertheless, we unhesitatingly reaffirm Judge Garth’s recent admonitions in United States v. Somers, supra.

V.

The remaining contentions raised by appellant may be discussed more briefly. We find no error in the trial judge’s charge that Grand Union Company had made no attempt to deceive the IRS concerning other campaign contributions. It is apparent from the context of that portion of the charge that the trial judge was referring to attempts to deceive the Internal Revenue Service by the use of a false invoice, and there was, in fact, no evidence that false invoices were employed to disguise those other contributions. Furthermore, we agree with the government that Preis’ possible role in deducting the other contributions was not really relevant, since it was clear that Preis used someone from outside Grand Union to obtain a Writers Associates invoice to make possible the deduction of the $5,000 contribution at issue. The only real dispute at trial was whether that outside person was Gross or someone else.

Little more need be added. We reject appellant’s contention that his conviction must be set aside because of the prosecution’s alleged knowing reliance on perjured testimony. Appellant’s characterization of Wolfram’s testimony as “perjured” is nothing more than a characterization, and there is no evidence to show that the government knew that Wolfram’s testimony was inaccurate or “substantially misleading”. Cf. United States v. Harris, 498 F.2d 1164, 1169 (3d Cir. 1974). As to further allegations of prosecutorial misconduct, we accept the exhaustive analysis of Judge Whipple in his opinion denying a new trial. 375 F.Supp. 971 (D.N.J.1974). We have reviewed the testimony and are satisfied that there was sufficient evidence to support the convictions. We have considered the other contentions raised by appellant and find them devoid of merit.

The judgment of the district court will be affirmed.

      . False declarations before grand jury or court

      (a) Whoever under oath in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

      . Subornation of perjury

      Whoever procures another to commit any perjury is guilty of subornation of perjury, and shall be fined not more than $2,000 or imprisoned not more than five years, or both.

      . Perjury generally

      Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.

      . It is clear from both Hammer and Weiler that the Supreme Court does not consider the evidentiary rule to be of constitutional dimension; the Court merely refused to depart from “[t]he special rule which ... is deeply rooted in the past centuries” in the “absence of legislation.” Weiler v. United States, supra, 323 U.S. at 608-10, 65 S.Ct. at 550.

      . Congress neither amended § 1622 nor enacted a new subornation statute expressly proscribing subornation to make a false declaration when it enacted § 1623 in 1970.

      . The government believes that Hammer v. United States, supra, lays appellant’s argument to rest. We disagree. Hammer held that the general federal perjury statute applies to federal bankruptcy proceedings. Bronston v. United States, 409 U.S. 352, 357, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973). Unlike the case sub judice, the Hammer indictment did not specify whether the subornation charge was drawn under 29(b) of the Bankruptcy Act [now 18 U.S.C. § 152] or § 125 of the Criminal Code [now 18 U.S.C. § 1621], However, the Court found the allegations of the indictment were sufficient to charge an offense under either the perjury statute or the Bankruptcy Act. Accordingly, the omission in the indictment was immaterial; the defendant was charged with “subornation of perjury.” 271 U.S. at 625. Thus, the Court in Hammer had no occasion to, and did not, meet the precise issue before us.

      . Wigmore traces the ancestry of the two-witness requirement to the “Romanesque law of Continental Europe.” 7 J. Wigmore, Evidence § 2032, at 241 (3d ed. 1940). “By the end of the 1600s it was decisively settled that the ecclesiastical rules about numbers of witnesses were not to be adopted into the common law. It was after that time that there arose the single common-law exception to the doctrine that one witness alone may suffice in every case, namely, the rule that one witness, without corroborating circumstances, does not suffice on the charge of perjury. Yet even this rule was an indirect borrowing from the civil law.” Ibid. § 2040, at 273.

      . Congressional action in 1970 may be contrasted with the action of the 1911 joint Parliamentary Committee in England. Looking to a codification of English criminal law the English Committee recommended, and Parliament passed, the Perjury Act of 1911, prohibiting convictions “solely upon the evidence of one witness as to the falsity . . . Weiler v. United States, supra, 323 U.S. at 610 n. 4, 65 S.Ct. at 550.

      . We also do not believe that the court abused its discretion when it permitted the government to read into evidence the excerpt of the grand jury transcript showing that McCrane pleaded the Fifth Amendment when asked about his possible role in the issuance of “false and fictitious invoices” Because of the brevity of the excerpt introduced, because the question complained of merely provided the context in which McCrane pleaded the Fifth, and because the question made no reference to Gross himself, we do not believe that the reading of the excerpt was “inflammatory” or “prejudicial”.

      . Striar testified that during a July, 1970, meeting with Slavitt and appellant, he decided to make a $2,000 contribution to appellant’s 1970 senatorial campaign. He and appellant discussed the possibility of masking it as a business expense. Gross then said, “[Tjhis could be taken care of by Mailmar.” (T. 793). Shortly after this meeting Striar’s New York office received a Mailmar invoice in the amount of $2,000, which was duly paid but not charged to Striar’s personal account.

      . The government later represented that it was using appellant’s 1968-72 income tax returns to tie appellant’s income, largely derived from his firm’s representation of sewerage authorities, with his political position. (T. 4139). Appellant’s counsel objected to such use but frankly admitted that Gross had already so testified. (Ibid.). Indeed, the court cautioned the jury that “[t]here is no impropriety involved.” (T. 4148). In light of these facts, we find no abuse here.

      . Repealed and superseded by Federal Election Campaigns Act, 2 U.S.C. § 431 et seq. Act of Feb. 7, 1972, Pub.L. 92-225.

      . The government also argues that it utilized the statement to refute the Gross-created impression that he was naive when it came to campaign financing. We have reviewed the record in this light and do not believe that the statement was used for this purpose.

      . When Gross was asked whether the Act was “violated”, he specifically denied that it had been and stated instead that it was “avoided”. (T. 4093). Gross testified and his counsel argued that it was not a violation of the Act to fail to report contributions filed by local committees operating solely within one state (T. 4091, 4105-06), and the trial judge so charged the jury. (T. 4894).

      . Appellant’s numerous contentions challenging the sufficiency of the evidence relate merely to the credibility of Preis and Wolfram, which we cannot evaluate for ourselves on appeal. Where the jury has returned a verdict of guilty, an appellate court is bound to accept the evidence in the light most favorable to the prosecution. See United States v. De Cavalcante, supra.

      . Other contentions are: the admission of co-conspiratorial hearsay was in error and the charge to the jury compounded the error; the court’s lack of an evenhanded policy during discovery violated substantial and constitutional rights of the defendant; the defendant was deprived of his constitutional right to a fair and impartial jury; the indictment should have been dismissed on the ground of selective prosecution and discovery should have been permitted with respect thereto; direct political contributions are deductible for tax purposes as ordinary and necessary business expenses, and therefore the indictment should have been dismissed or at least discovery permitted with respect thereto.


author: MEDINA, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Henry Stuart BROWN, Defendant-Appellant.
    No. 468, Docket 74-1947.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 8, 1975.
    Decided Feb. 20, 1975.

      Robert L. Clarey, Asst. U. S. Atty., Brooklyn, N. Y. (David G. Trager, U. S. Atty., for the Eastern District of New York, and Paul B. Bergman, Asst. U. S. Atty., Brooklyn, N. Y., on the brief), for plaintiff-appellee.
    Frederick H. Cohn, New York City, for defendant-appellant.
    Before MEDINA, FEINBERG and MANSFIELD, Circuit Judges.
   MEDINA, Circuit Judge:

Henry Stuart Brown appeals from a judgment of conviction of armed bank robbery in violation of 18 U.S.C., Section 2113(d) and Section 2, after a trial to Chief Judge Mishler and a jury. He was sentenced to 20 years in prison, to run consecutively to a term of 25 years that he was serving in the State of Missouri at the time of the trial. The Missouri sentence was imposed on September 29, 1973 on a plea of guilty made on July 24, 1972 to charges on three counts of assault with intent to kill. We find no merit in any of the points made for reversal and we affirm.

The preparations for the robbery followed the usual routine. Four or five of the prospective participants met in various apartments and discussed the matter. Brown said he liked the looks of the Bankers Trust Company on the corner of DeKalb Avenue in Brooklyn, partly because it had only one surveillance camera. Further inspection by the group confirmed Brown’s appraisal, especially as they noticed the windows of the bank were so high that persons on the street could not see what was going on inside of the bank. When Brown, Roland, Green and Kearney met on Sunday evening, January 9, 1972, to arrange the details of the operation, Jackson, whose car they had used when casing the bank, was not there. So Green and Roland set out on foot to steal a suitable car. At about 11 P.M. they came across a car rental agency somewhere on Church Avenue in Brooklyn. Pistols in hand they forced the attendants to give them the keys to a small foreign rental car, of unknown make and registration, that was parked across the street. They drove away in this car and parked it about a block from the bank. The next morning, January 10, Brown, Kearney and Green stood together on the sidewalk just across the street from the bank, and, when they saw Roland coming in the stolen car that was to be used as a getaway, they entered the bank and the robbery took place. Each man had a loaded hand gun and, on the way to the bank, a paper shopping bag had been purchased to hold the currency they expected to steal.

According to their plan either Green or Kearney said: “O.K. this is a hold-up, everybody on the floor.” As Brown tried to open a locked door adjacent to the teller’s area, he left prints from three of the fingers of his left hand. A surveillance camera that Brown had not noticed took the most perfect photographs of the operation that we have ever seen. There are several very clear photographs of Brown with the shopping bag. There is a glove on his right hand but his left hand is bare. Although Kearney and Green, guns in hand, appear to be wearing masks, Brown’s face is uncovered, except for a pair of dark glasses, and unlikely as it might seem, the manager and assistant manager of the bank, who conversed briefly with Brown, were unable to identify him. The assistant manager after looking at a spread of photographs for 15 minutes, picked out the wrong one. We were told on the oral argument that Brown’s appearance had not changed. At the trial he wore no beard nor had he submitted to any face lifting operation. We have come across similar failures to identify armed bank robbers in the past and the possibility that this may be due to fear cannot be ruled out. In any event, on this record and with these photographs we think the proof of Brown’s guilt is overwhelming. Incidentally, after he had climbed over the counter with the help of a chair, he scooped up the money in the drawers of the various tellers and put it in the shopping bag, and he left his loaded revolver on the shelf in the teller’s cage. Roland was given immunity and testified for the prosecution. We shall hear more of him.

I

The Pre-indictment Delay

The armed bank robbery occurred January 10, 1972. Brown received about $3700 the same day as his share of the contents of the shopping bag. The next we hear of him is in Missouri on July 27, 1972 when he pleaded guilty to 3 counts charging him with assault with intent to kill. On June 5, 1972 positive fingerprint identification of Brown was made. The indictment against Brown was filed on November 1, 1973, some seventeen months after the fingerprint identification.

Chief Judge Mishler denied a motion for a hearing to compel the prosecution to explain the reasons for this delay as a preliminary to a possible further motion to dismiss the indictment. The mere lapse of time between the fingerprint identification on June 5, 1972 and the filing of the indictment on November 1, 1973 constitutes no proof that Brown was prejudiced by the delay nor does it in the slightest degree indicate any foul play by the prosecution designed to deprive Brown of a fair trial or to affect his rights in any manner.

There is a surprising amount of discussion in numerous opinions of various Courts of Appeals in the federal judicial system relating to what might some day be proved or even plausibly alleged by a defendant in a criminal case to justify the dismissal of an indictment for prosecutorial misconduct in failing promptly to seek an indictment. That there must be some such showing is the mandate of United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Here the record is completely bare as to prejudice to the appellant and as to prosecutorial misconduct. The motion for a hearing was properly denied. We do not think that what was said in United States v. Ferrara, 458 F.2d 868 (2d Cir.) cert. denied, 408 U.S. 931, 92 S.Ct. 2498, 33 L.Ed.2d 343 (1972), was intended in any way to change the rule as formulated in Marion.

II

The Black Liberation Army

From the very beginning of the trial counsel for Brown tried in every possible way to bring the Black Liberation Army terrorist group into the case. One would suppose that it was in the interest of Brown to keep the Black Liberation Army out of the case, but his counsel thought otherwise. The specific issue on appeal involves the refusal of the trial judge, on grounds of irrelevance and possible prejudice, to allow Brown’s trial counsel to cross-examine Roland on Brown’s connections with the Black Liberation Army and Roland’s negotiations with the Kings County District Attorney about information on the Black Liberation Army.

It was clear from the lengthy reported dialogue between the Kings County prosecutor and Roland submitted as Jencks material to the defense, on which Brown places such reliance, that Roland knew practically nothing about the Black Liberation Army and less about Brown’s connection with the Black Liberation Army, if any. Brown’s membership and participation in that organization had at best extremely slight relevancy to the bank robbery charges being tried.

One look at the surveillance photographs showing dozens of persons face down on the floor covered by three robbers brandishing their revolvers can give some idea of the reactions of the ordinary citizen to what one reads in the newspapers every day of murders, robberies and the shooting and bombing of innocent bystanders. Whether so intended or not, it is clear to us that the connection with the Black Liberation Army, if any, of Brown or the prosecution witness Roland was so tenuous as to give little support to the theory that extensive questioning of the jurors on the voir dire and prolonged cross-examination of Roland on the subject of the Black Liberation Army would disclose some bias by the police or by other enforcement agents against the Black Liberation Army that would rub off on Brown and prejudice him. What such inquiries might well have done, on the other hand, was to give prospective witnesses the notion that it would be better for their health if they did not testify against Brown, and to give jurors the notion that a verdict of guilty might have unfortunate consequences.

In the exercise of his discretion Chief Judge Mishler properly refused to permit any discussion of or any question concerning or even any mention of the Black Liberation Army in the presence of the jury. Under the circumstances this was precisely the correct ruling to make on the subject.

By way of contrast, however, Chief Judge Mishler permitted an exhaustive cross-examination of Roland to bring out that his testimony against Brown was given under a promise of immunity and to prove a life of crime and violence quite sufficient to impeach him, had the jury not been furnished with what appears to us to be ample corroboration of Roland’s testimony. Brown did not testify and he rested his defense at the close of the prosecution’s case.

III

The Testimony of Frederick E. Webb

For over 20 years Mr: Webb has been a Special Agent of the FBI assigned to the FBI Laboratory in Washington. He is Chief of the Special Photographic Unit and has made extensive studies and experiments. The large and increasing number of bank robberies and the almost universal use of surveillance cameras greatly expanded Mr. Webb’s activities in his interesting specialty, which is comparing surveillance bank robbery photo- . graphs with known photographs of persons sought to be identified. He has done this work in several hundred cases and has given expert testimony with respect to this kind of evidence in about 30 federal court proceedings. Chief Judge Mishler found that the proof of his qualifications was sufficient to make his testimony admissible, leaving to the jury the question of whether they considered him an expert in his field and also leaving to the jury to decide the weight to be given to his testimony. Counsel for Brown objected and claimed that Mr. Webb’s testimony was not a proper subject for testimony as an expert and that it usurped the function of the jury who could see Brown present in the courtroom and could make their own evaluation of the surveillance photographs without any assistance from Mr. Webb.

We have no doubt that Mr. Webb qualified as an expert in the field because of his many years of study and experimentation. The question before us is whether it was proper to permit him to express his opinion on the specific phases of the process of identification to which the prosecutor addressed himself. We think the questions were proper. At no time did Mr. Webb state that Brown was the man photographed in the bank. This was in contrast to the fingerprint testimony which directly and unequivocally was to the effect that the prints found on the door leading to the teller’s cage were those of Brown and not those of any other person.

The method of taking the new photographs of Brown to establish a proper basis of comparison was described, also the manner of blowing up all the photographs to give the same effect as that produced by a microscope. Then Mr. Webb did what the prosecutor described as teaching “you (the jury) and me and everybody here, how to look at a photograph.” We have no doubt that this was proper expert testimony and that the jury might have found it helpful. This was especially true of what Mr. Webb stated on the subject of the lobes of the ears. He described the ear lobes of a person and the configuration of the ear as coming closest “to being like a fingerprint.” Mr. Webb’s conclusion was “that these photographs were all consistent and that these are either photographs of the same person or a person of the same features.”

Another phase of Mr. Webb’s testimony we think was also clearly proper expert proof. By making careful measurements and placing Brown in a position as nearly as possible identical with his location in the bank according to the surveillance photographs that were taken, Mr. Webb with both sets of photographs made some mathematical calculations set forth in a diagram and testified that the height of the man robbing the bank and the height of Brown were about the same.

In the realm of identification by photographs and expert testimony no two cases are alike. We hold that there was no error in this case in the admission of Mr. Webb’s testimony and the use that was made of it. See United States v. Fernandez, 480 F.2d 726, 735 (2d Cir. 1973).

IV

The So-called Presumption for Failure to Call Witnesses

At times, especially in criminal cases, an utterly insignificant colloquy is blown up to make it look like a legitimate point for reversal. It will be recalled that the night before the bank robbery Roland and Green stole a car from a car rental agency somewhere on Church Avenue in Brooklyn, after holding up the two employees at gun point. He also testified that he used this car in the robbery and then abandoned it. Roland could not remember the precise location of the place where he abandoned this car nor could he remember whether he left the keys in the car. There is nothing else in this record about the getaway car. There is nothing to show that the employees of the rental car agency were ever identified, nor is there anything to show that the loss was reported to the police or that the car was ever taken into custody by the police. If Roland left the keys in the car, it is probable that it was again stolen a few minutes after being abandoned by Roland, as suggested in the Government’s brief.

During his summation counsel for Brown was discussing the failure of the prosecution to sustain its burden of proving Brown’s guilt beyond a reasonable doubt. As he was leaving the subject of the fingerprints, counsel veered off and began to speculate on “what the Government did have or did not have to support an indictment.” This remark was stricken. But within a few seconds counsel was back at it again. This time he began commenting on the failure of the prosecution to produce proof about the getaway car, saying “You may infer from that that * * * had it been brought forward (it) would not have been favorable to the Government’s case.” Chief Judge Mishler said he did not agree with this and he pointed out the distinction between arguments addressed to the legal effect of a failure to produce evidence and those addressed to an alleged failure on the part of the Government to establish its burden of proving guilt beyond a reasonable doubt. There the matter rested until Chief Judge Mishler gave his instructions to the jury. There was no objection, and no motion of any kind.

What he said later was:

A reasonable doubt may arise from the failure of the Government to produce proof, and that the defendant is not obliged to produce any proof, doesn’t have to subpoena witnesses. However, Mr. Cohn said that you may infer from the failure of the Government to produce those two witnesses that if they were produced they will give testimony that would weaken the Government’s case or contradict Mr. Roland. That’s where I differ with Mr. Cohn. You should be advised that even though the defendant need not produce proof, he still has the power to subpoena anyone he wants to and where we find, and where witnesses are controlled by neither party, or putting it affirmatively, are under the equal control of the parties, you may not draw an adverse inference from the Government’s failure to produce the witnesses.

We are told that the giving of the above-quoted instructions was a clear violation of Brown’s constitutional privilege against self-incrimination because of the reference to Brown’s subpoena powers. This is pure humbug. Chief Judge Mishler explicitly and repeatedly instructed that the jury was to draw “no unfavorable inference of any kind * * in the failure of the defendant to testify” and that the jury “may not draw any unfavorable inference from the defendant’s failure to offer any proof.” Brown’s privilege to remain silent and to rest upon the prosecution’s burden of proof was in no way infringed.

Claim is also made by Brown that it was reversible error for the trial judge to instruct that if a witness is “under equal control” of the parties no adverse inference could be drawn from the failure of the Government to produce the witness. If there was an equally available witness this charge might well be error. Here, however, evidence as to the stolen car was equally unavailable to both sides, making an adverse inference against either side impermissible. United States v. Super, 492 F.2d 319, 323 (2d Cir. 1974). Accordingly, there was no error in the instruction that the' jury “may not draw an adverse inference from the Government’s failure to produce the witnesses.” The reference to the service of subpoenas was harmless surplusage.

Affirmed.

      . 18 U.S.C., Section 3500.