text:
    Torbin H. BRENDEN, Individually and as parent and natural guardian of Peggy Brenden, et al., Plaintiffs-Appellees, v. INDEPENDENT SCHOOL DISTRICT 742, and Independent School District 274, Defendants, and the Minnesota State High School League, Defendant-Appellant.
    No. 72-1287.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 8, 1973.
    Decided April 18, 1973.

      Bernhard W. LeVander, Minneapolis, Minn., for defendant-appellant.
    Thomas W. Wexler, Minneapolis, Minn., for plaintiffs-appellees.
    Before LAY, HEANEY and STEPHENSON, Circuit Judges.
   HEANEY, Circuit Judge.

This is a civil rights action brought under 42 U.S.C. § 1983 to enjoin enforcement of a rule promulgated by the Minnesota State High School League which bars females from participating with males in high school interscholastic athletics. The rule states:

“Girls shall be prohibited from participation in the boys’ interscholastic athletic program either as a member of the boys’ team or a member of the girls’ team playing the boys’ team.
“The girls’ team shall not accept male members.”

Minnesota State High School League Official Handbook, 1971-72.

Athletic Rules for Girls, Article III, Section 5.

The complaint charges that this rule discriminates against females in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

The plaintiffs are Peggy Brenden and Antoinette St. Pierre, female high school students at Minnesota public high schools. Brenden attends the St. Cloud Technical High School in Independent School District 742 and St. Pierre attends Hopkins Eisenhower High School in Independent School District 274. Neither school district has appealed the judgment below. The defendant and sole appellant, the Minnesota State High School League, is a non-profit corporation which claims the membership of the state’s 485 public high schools, including St. Cloud Technical High School and Hopkins Eisenhower High School.

The plaintiffs desired to participate in non-contact interscholastic sports: Brenden in tennis; St. Pierre in cross-country ' skiing and cross-country running. Neither of their schools provided teams for females in the respective sports. They did, however, provide such teams for males. Both plaintiffs would have liked to qualify for positions on the teams which have been established for males, but they were precluded from doing so on the basis of the above quoted rule. The trial court found that both were excellent athletes, and that neither would be damaged by competition with males.

The court, after a trial on the merits, granted relief stating:

“In summary, the Court is confronted with a situation where two high school girls wish to take part in certain interscholastic boys’ athletics; where it is shown that the girls could compete effectively on those teams; and where there are no alternative competitive programs sponsored by their schools which would provide an equal opportunity for competition for these girls; and where the rule, in its application, becomes unreasonable in light of the objectives which the rule seeks to promote. Brought to its base, then, Peggy Brenden and Tony St. Pierre are being prevented from participating on the boys’ interscholastic teams in tennis, cross-country, and cross-country skiing solely on the basis of the fact of sex and sex alone. The Court is thus of the opinion that in these factual circumstances, the application of the League rules to Peggy Brenden and Tony St. Pierre is arbitrary and unreasonable, in violation of the equal protection clause of the fourteenth amendment. For this reason, the application of the rule to these girls cannot stand. * * * To implement this decision, it is ordered. “1. That Peggy Brenden and Tony St. Pierre be declared eligible to compete on their respective teams at their respective high schools.
“2. That the Minnesota State High School League is enjoined from imposing any sanctions upon either St. Cloud Technical High School or Hopkins Eisenhower High School for compliance with this Court order, and that no sanctions are to be imposed on any other public high schools for engaging in interscholastic competition with St. Cloud Technical High School and Hopkins Eisenhower High School.”

Brenden v. Independent School District 742, 342 F.Supp. 1224, 1234 (D.Minn. 1972).

We affirm the decision of the trial court.

Having stated what this case is about, we would also like to emphasize what it is not about. First, because neither high school provided teams for females in the sports in which Brenden and St. Pierre desired to participate, we are not faced with the question of whether the schools can fulfill their responsibilities under the Equal Protection Clause by providing separate but equal facilities for females in interscholastic athletics. See generally, Note, Sex Discrimination in High School Athletics, 57 Minn.L.Rev. 339, 366-370 (1972). Second, because the sports in question are clearly non-contact sports, we need not determine if the High School League would be justified in precluding females from competing with males in contact sports such as football. See, Cynthia Morris et al., etc. v. Michigan State Board of Education et al., etc., 472 F.2d 1207 (6th Cir. 1973).

The High School League first contends that there is no jurisdiction over it under 42 U.S.C. § 1983 because it is a voluntary organization not acting under the color of state law. However, the trial court specifically held that:

“ * * * Although the Minnesota State High School League is a voluntary organization, the original allowance for public high schools to join such an association or organization is authorized pursuant to Minnesota law. Minn.Stat.Ann. Section 192.12. In addition, the rules governing League members are promulgated pursuant to a procedure which integrally involves the member school districts in the decision-making process. Beyond this, the ultimate enforcement of the rules becomes the responsibility of the member school and the public officials of those schools and school districts. In such a situation, where there is a tremendous public interest in educational functions, and where the public school machinery of the state is so involved in the effectuation and enforcement of rules which bind all public high schools in the state, the Court is left with no conclusion other than that defendant Minnesota State High School League and the defendant school districts are acting under color of state law. * * * ” (Footnote omitted.)

342 F.Supp. at 1229.

We agree with the trial court and affirm its decision in this regard. See, Mitchell v. Louisiana High School Athletic Association, 430 F.2d 1155 (5th Cir. 1970); Louisiana High School Athletic Ass’n v. St. Augustine High Sch., 396 F.2d 224 (5th Cir. 1968); Oklahoma High School Athletic Association v. Bray, 321 F.2d 269 (10th Cir. 1963); Reed v. The Nebraska School Activities Association, 341 F.Supp. 258 (D.Neb.1972); Sex Discrimination in High School Athletics, supra at 350.

We next turn to the merits. In evaluating a claim that state action violates the Equal Protection Clause, the following three criteria must be considered:

“* * * [I] the character of the classification in question; [II] the individual interests affected by the classification; [III] and the governmental interests asserted in support of the classification. * * * ”

Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 999, 31 L.Ed.2d 274, 280 (1972).

I. Sex-Based Classifications.

In 1961, President Kennedy, having found that “prejudices and outmoded customs act as barriers to the full realization of women’s basic rights,” established the President’s Commission on the Status of Women. Executive Order 10980 (December 14, 1961). That Commission, the President’s Task Force on Women’s Rights and Responsibilities, congressional hearings and critical studies have confirmed the serious nature of discrimination on account of sex.

In recent years, Congress and the Executive have acted to eliminate discrimination based on “ ‘stereotyped characterizations of the sexes’,” Phillips v. Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971) (Marshall, J., concurring). See, Title VII of the Civil Rights Act of 1964, the Equal Pay Act, and Title IX of the Education Amendments of 1972. The jurisdiction of the Civil Rights Commission has been extended to include discrimination on the basis of sex. Finally, Congress has passed the Equal Rights Amendment and transmitted it to the states.

In recent years, courts, too, have become sensitive to the problems of sex-based discrimination. In 1963, the Presidential Commission on the Status of Women recommended that:

“Early and definitive court pronouncement, particularly by the United States Supreme Court, is urgently needed with regard to the validity under the Fifth and Fourteenth Amendments of laws and official practices discriminating against women, to the end that the principle of equality becomes firmly established in constitutional doctrine.”

There is no longer any doubt that sex-based classifications are subject to scrutiny by the courts under the Equal Protection Clause and will be struck down when they provide dissimilar treatment for men and women who are similarly situated with respect to the object of the classification. Reed v. Reed, 404 U.S. 71, 77, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). See, Moritz v. C.I.R., 469 F.2d 466 (10th Cir. 1972). Compare, Green v. Waterford Board of Education, 473 F.2d 629 (2nd Cir. 1973), and LaFleur v. Cleveland Board of Education, 465 F.2d 1184 (6th Cir. 1972), with Mrs. Susan Cohen v. Chesterfield County School Board et al., etc., 474 F.2d 395 (4th Cir. 1973) (en banc). Furthermore, discrimination on the basis of sex can no longer be justified by reliance on “outdated images * * * of women as peculiarly delicate and impressionable creatures in need of protection from the rough and tumble of unvarnished humanity.” Seidenberg v. McSorleys’ Old Ale House, Inc., 317 F.Supp. 593, 606 (S.D.N.Y. 1970).

In Sail’er Inn v. Kirby, 5 Cal.3d 1, 95 Cal.Rptr. 329, 340, 485 P.2d 529, 540-541 (Cal.1971) (en banc), the unanimous California Supreme Court succinctly summarized the nature of sex-based discrimination:

“Sex, like race and lineage, is an immutable trait, a status into which the class members are locked by the accident of- birth. What differentiates sex from nonsuspect statuses, such as intelligence or physical disability, and aligns it with the recognized suspect classifications is that the characteristic frequently bears no relation to ability to perform or contribute to society. * * * The result is that the whole class is relegated to an inferior legal status without regard to the capabilities or characteristics of its individual members. * * * Where the relation between characteristic and evil to be prevented is so tenuous, courts must look closely at classifications based on that characteristic lest outdated social stereotypes result in invidious laws or practices.
“Another characteristic which underlies all suspect classifications is the stigma of inferiority and second class citizenship associated with them. * * Women, like Negroes, aliens, and the poor have historically labored under severe legal and social disabilities. Like black citizens, they were, for many years, denied the right to vote and, until recently, the right to serve on juries in many states. They are excluded from or discriminated against in employment and educational opportunities. Married women in particular have been treated as inferi- or persons in numerous laws relating to property and independent business ownership and the right to make contracts.
“Laws which disable women from full participation in the political, business and economic arenas are often characterized as ‘protective’ and beneficial. Those same laws applied to racial or ethnic minorities would readily be recognized as invidious and impermissible. The pedestal upon which women have been placed has all too often, upon closer inspection, been revealed as a cage.” (Citations and footnotes omitted.)

In this case, it is unnecessary for this Court to determine whether classifications based on sex are suspect and, thus, can be justified only by a compelling state interest because the High School League’s rule cannot be justified even under the standard applied to test non-suspect classifications. See, Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349, 359 n. 8 (1972).

II. The Plaintiffs’ Interest in Interscholastic Athletics.

The High School League contends that relief under the Civil Rights Act is inappropriate because participation in interscholastic sports is a privilege and not a right. We disagree. The Supreme Court has rejected “the concept that constitutional rights turn upon whether a governmental benefit is characterized as a ‘right’ or as a ‘privilege.’ * * *". Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 1853, 29 L. Ed.2d 534 (1971). The question in this case is not whether the plaintiffs have an absolute right to participate in interscholastic athletics, but whether the plaintiffs can be denied the benefits of activities provided by the state for male students. See, Reed v. The Nebraska School Activities Association, supra, 341 F.Supp. at 262.

Discrimination in education has been recognized as a matter of the utmost importance. The Supreme Court has pointed out that:

“Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education in our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”

Brown v. Board of Education of Topeka, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954). In particular, “[discrimination in education is one of the most damaging injustices women suffer. It denies them equal education and equal employment opportunity, contributing to a second class self image.” A Matter of Simple Justice, The Report on the President’s Task Force on Women’s Rights and Responsibilities 7 (April, 1970). See, American Women, The Report of the President’s Commission on the Status of Women (1963). The President’s Task Force also concluded that “discrimination based on sex in public education should be prohibited by the Fourteenth Amendment.” A Matter of Simple Justice, supra, at 8. Congress has also recognized the importance of all aspects of education for women by declaring :

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, * * *."

Title IX of the Education Amendments of 1972, 86 Stat. 235, § 901(a), P.L. 92-318 (June 23, 1972) U.S.Code Cong. & Admin.News p. 444.

Discrimination in high school interscholastic athletics constitutes discrimination in education. The Supreme Court of Minnesota has stated that:

"* * * [I] nterscholastic activities * * * [are] today recognized * * * as an important and integral facet of the * * * education process, see, Bunger v. Iowa High School Athletic Assn, 197 N.W.2d 555 (Iowa 1972); Kelley v. Metropolitan County Bd. of Ed. of Nashville and Davidson County, 293 F.Supp. 485 (M.D.Tenn. 1968) * * *."

Thompson v. Barnes, 200 N.W.2d 921, 926 n. 11 (Minn.1972). The court in Thompson pointed out that this was also the position of the Minnesota High School League. See, Behagen v. Intercollegiate Conference of Faculty Rep., 346 F.Supp. 602 (D.Minn.1972). The National Federation of State High School Athletic Associations has taken the position that:

“Interscholastic athletics shall be an integral part of the total secondary school educational program that has as its purpose to provide educational experiences not otherwise provided in the curriculum, which will develop learning outcomes in the areas of knowledge, skills and emotional patterns and will contribute to the development of better citizens. Emphasis shall be upon teaching ‘through’ athletics in addition to teaching the ‘skills’ of athletics."

1970-1971 National Federation of State High School Athletic Associations Official Handbook 9.

Furthermore, the High School League recognizes that interscholastic sports are just as valuable for, females as for males. See, Haas v. South Bend Community School Corporation, 289 N.E.2d 495, 500 (Ind.1972).

The importance of interscholastic athletics for females as part of the total educational process has been recently emphasized by the Minnesota State Board of Education. Its recent statement of policy and proposed action, Eliminating Sex Bias in Education (September 1972), states that:

“* * * [O]ur educational system has helped perpetuate the division of the sexes into predetermined roles and has failed to provide freedom from discrimination because of sex * * *
“The practice of stereotyping and socializing men and women into ‘masculine’ ‘feminine’ roles has resulted in prejudice, dominance, discrimination and segregation harmful to the human development of both sexes.
* * * * * *
“The State Board of Education is concerned about four areas in particular: discrimination in hiring and promoting, sex requirements for boys and girls to participate in sports and extra-curricular activities, sex bias in curricular and teaching materials, and providing in-service training for administrators and teachers to overcome the habits and practices of teaching stereotyped social roles.” (Emphasis added.)

In view of these circumstances, we must conclude that at the very least, the plaintiffs’ interest in participating in interscholastic sports is a substantial and cognizable one. Thus, this case is properly before a federal court to determine if the High School League’s actions are in conformity with the Equal Protection Clause. See, Cynthia Morris et al., etc. v. Michigan State Board of Education, supra; Mitchell v. Louisiana High School Athletic Association, supra, 430 F.2d at 1158; Bucha v. Illinois High School Athletic Association, 351 F.Supp. 69 (N.D.Ill.1972); Reed v. The Nebraska School Activities Association, supra; Graves v. Walton County Board of Education, 300 F.Supp. 188, 199 (M.D.Ga.1968), aff’d, 410 F.2d 1152, 1153 (5th Cir. 1969). See generally, 36 Mo.L.Rev. 406-408 (1971).

III. The High School League’s Interest.

Because the defendant high schools have not provided teams for females in tennis and cross-country skiing and running, the effect of the High School League’s rule is to completely bar Brenden and St. Pierre from competition in these non-contact interscholastic sports, despite their being fully qualified. The High School League argues, however, that its rule is justified in order to assure that persons with similar qualifications compete among themselves. They state that physiological differences between males and females make it impossible for the latter to equitably compete with males in athletic competition.

In evaluating the High School League’s justification for their rule, we will, as we have indicated, apply the equal protection standard for evaluating non-suspect classifications. That standard is set forth in Reed v. Reed, supra 404 U.S. at 76, 92 S.Ct. at 254.

“* * * a classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons in similar circumstances shall be treated alike.’ * * * ” (Citation omitted and emphasis added.)

It has been pointed out that in applying this standard, the Supreme Court’s definition of what constitutes a rational relationship has become more rigorous, and that the Court has become “less willing to speculate as to what unexpressed legitimate state purposes may be rationally furthered by a challenged statutory classification.” Green v. Waterford Board of Education, supra, 473 F.2d at 633.

We recognize that because sex-based classifications may be based on outdated stereotypes of the nature of males and females, courts must be particularly sensitive to the possibility of invidious discrimination in evaluating them, and must be particularly demanding in ascertaining whether the state has demonstrated a substantial rational basis for the classification. Compare, Reed v. Reed, supra, with Gunther, The Supreme Court, 1971 Term — Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 34 (1972). See, Wark v. Robbins, 458 F.2d 1295, 1297 n. 4 (1st Cir. 1972); Sex Discrimination in High School Athletics, supra at 346-349, 370. This is especially true where the classification involves the interest of females in securing an education.

We believe that in view of the nature of the classification and the important interests of the plaintiffs involved, the High School League has failed to demonstrate that the sex-based classification fairly and substantially promotes the purposes of the League’s rule.

(A)

First, we do not believe the High School League has demonstrated a sufficient rational basis for their conclusion that women are incapable of competing with men in non-contact sports. The trial court specifically found that the plaintiffs were capable of such competition and the evidence indicates that the class of women, like the class of men, includes individuals with widely different athletic abilities. As the Fifth Circuit has recognized in activities requiring physical strength, technique may be just as important as physical capacity. Weeks v. Southern Bell Telephone Company, 408 F.2d 228, 236 (5th Cir. 1969). And, “[tjechnique is hardly a function of sex.” Ibid, at 236. Furthermore, the record indicates that in non-contact sports, such as those involved here, factors such as coordination, concentration, agility and timing play a large role in achieving success. No objective evL dence was introduced comparing males and females with respect to these factors. See, Sex Discrimination in High School Athletics, supra at 363.

Essentially, the testimony of those witnesses who concluded that females were wholly incapable of competing with men in interseholastic athletics was based on subjective conclusions drawn from the physiological difference between the sexes by individuals who were not themselves familiar with mixed competition. This subjective testimony is particularly susceptible to discrimination based on stereotyped notions about the nature of the sexes.

Furthermore, the High School League failed to show that it had established any objective nondiscriminatory minimum standards for evaluating qualifications for non-contact interscholastic athletics. The record indicates, in fact, that the schools had adopted no cut policies allowing male students, no matter how untalented, to participate in the non-contact interscholastic sports involved here.

We note that there is at least one systematic study of mixed competition in non-contact sports. In 1969, a rule of the New York State Department of Education prohibiting competition between males and females in non-contact sports was challenged. The Department reports :

“Faced with the need for valid supporting data, the Education Department gathered all the evidence it could find on the matter. Very little was reported in professional literature. In the limited number of experiences that came to its attention wherein girls competed on boys’ teams (primarily at the college level), the only negative factor reported was that it was not yet socially acceptable for a girl to defeat a boy in athletic competition. Discussion with various medical personnel elicited a unanimous expression that there are no medical reasons to prohibit girls from competing on boys’ teams in selected non-eon-tact sports. Thus, it became clear that the Department had little or nothing to support its traditional position. It was then suggested that a moratorium be declared on a decision until some evidence could be gathered through experience. Thus, the experimental project came into being.”

University of the State of New York, The State Department of Education, Division of Health, Physical Education and Recreation, Report on Experiment: Girls on Boys Interscholastic Athletic Teams, March 1969-June 1970, 1 (February, 1972).

The Department then conducted an experiment in which one hundred schools over a sixteen-month period maintained athletic teams on which both males and females participated. The results of the experiment were overwhelmingly favorable to continuing mixed competition:

“Should the practice of allowing girls to compete on boys’ athletic teams be continued? Eighty percent of the principals, directors, women physical educators, coaches, and physicians involved in the experiment voted in favor of continuing the practice, either as an experiment or as legal policy. Slightly more than 90 percent of the boy team members, girl participants, parents, coaches and opposing coaches also favored continuation of the practice. * * * ”

Id. at 4. As a result of the experiment, New York amended its rules to allow females to compete with males.

(B)

Second, even if we assume, arguendo, that, on the whole, females are unlikely to be able to compete with males in non-contact interscholastie sports, this fact alone would not justify precluding qualified females like Brenden and St. Pierre from such competition. Reed v. Reed, supra. Cf., Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

In Reed, the Court found unconstitutional a portion of the Idaho probate code which granted males a mandatory preference over females in competing for the right to administer an estate without regard for the individual qualifications of the female applicant. One of the reasons which the Idaho Supreme Court gave for upholding the statute was that the “legislature when it enacted the statute evidently concluded that in general men are better qualified to act as an administrator than are women.” Reed v. Reed, 465 P.2d 635, 638 (Idaho 1970). Because of this, in the Idaho Supreme Court’s opinion, eliminating females from consideration “is neither an illogical or arbitrary method devised by the legislature to resolve an issue that would otherwise require a hearing as to the relative merits * * * of the two or more petitioning relatives.” Id. at 638.

The United States Supreme Court did not discuss the validity of the assumption that women are less qualified than men to be administrators of estates. Nonetheless, it concluded that the preference for men was arbitrary:

“ * * * To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; * * *
“By providing dissimilar treatment for men and women who are * * * similarly situated, the challenged section violates the Equal Protection Clause. * * * ”

Reed v. Reed, supra 404 U.S. at 76-77, 92 S.Ct. at 254.

In our view, Reed precludes a state from using assumptions about the nature of females as a class, to deny to females an individualized determination of their qualifications for a benefit provided by the state.

In the present case, the underlying purpose of the High School League’s rule is, as we have indicated, to insure that persons with similar qualifications will compete with each other. Yet, females, whatever their qualifications, have been barred from competition with males on the basis of an assumption about the qualifications of women as a class. The failure to provide the plaintiffs with an individualized determination of their own ability to qualify for positions on these teams is, under Reed, violative of the Equal Protection Clause. See, Note, Sex Discrimination in High School Athletics, supra.

The High School League argues that invalidation of its rule will have an adverse impact on the future development of opportunities for females in interscholastic sports. This argument is too speculative to have merit, particularly in view of the recent statement of the Minnesota State Board of Education calling on its local boards- to provide equal education opportunity for females, see, Eliminating Sex Bias in Education, supra, and the League’s own stated commitment to interscholastic athletics for females. This argument certainly cannot be used to deprive Brenden and St. Pierre of their rights to equal protection of the law. With respect to these two females, the record is clear. Their schools have failed to provide them with opportunities for interscholastic competition equal to those provided for males with similar athletic qualifications. Accordingly, they are entitled to relief. See, Haas v. South Bend Community School Corporation, supra.

We are, of course, always reluctant to invalidate state and local action as unconstitutional. We have, however, no choice where a group of citizens has been deprived of the equal protection of the law. The likelihood of similar state action in this area being found unconstitutional in the future will be minimized if the League and the local school board affirmatively respond to the request of the Minnesota Department of Education to:

“ * * * Review all State Board rules and regulations and take steps to eliminate all sex-based requirements for courses and extra-curricular activities for students.
“[And] * * * Provide equal access for all pupils to local school facilities, programs, equipment, staff services, and financial resources.”

Eliminating Sex Bias in Education, supra at 6.

Affirmed.

      . See, American Women, The Report of the President’s Commission on the Status of Women (1963) ; A Matter of Simple Justice, The Report on the President’s Task Force on Women’s Rights and Responsibilities (April, 1970) ; Discrimination Against Women, Hearings Before the Special Subcommittee on Education of the Committee on Education & Labor, House of Representatives, 91st Cong., 2nd Sess., on Section 805 of H.R. 16048 (1970); L. Kanowitz, Women and the Law (1964); 1969 Handbook on Women Workers, United States Department of Labor, Women’s Bureau Bulletin 294.

      . 42 U.S.C. § 2000e, et seq.

      . 29 U.S.C. § 206(d).

      . Sections 901-907, P.L. 92-318, 86 Stat. 235 (June 23, 1972).

      . Section 3, P.L. 92-496, 86 Stat. 813 (October 14, 1972).

      . The failure to provide educational opportunity for women has long been criticized in this country. For instance, Abigail Adams, writing in revolutionary war America, “spoke often and sometimes sharply in her letters about the discrimination between boys and girls with respect to educational privileges, a disparity she could only attribute to men’s ‘ungenerous jealousy of rivals near the throne’.” Quoted in James & James & Boyer, Notable American Women 1607-1950: A Biographical Dictionary (1971).

      . “ * * * As testified to by defendants’ expert witnesses, men are taller than women, stronger than women by reason of a greater muscle mass; have larger hearts than women and a deeper breathing capacity, enabling them to utilize oxygen more efficiently than women, run faster, based upon the construction of the pelvic area, which when women reach puberty, widens, causing the femur to bend outward, rendering the female incapable of running as efficiently as a male. * * * ”
      Brenden v. Independent School District 742, 342 F.Supp. 1224, 1233 (D.Minn. 1972).

      . New York has determined that:
      “(4), Girls may participate on the same team with boys in interscholastie competition in the sports of archery, badminton, bowling, fencing, golf, gymnastics, riflery, rowing (but only as coxswain), shuffleboard, skiing, swimming and diving, table tennis, tennis, and track and field, provided the school attended by a girl wishing to participate in any such sport does not maintain a girls’ team in that sport. In exceptional cases, the principal or the chief executive officer of a school may permit a girl or girls to participate on a boys’ team in a designated sport or sports, notwithstanding the fact that the school maintains a girls’ team in that sport or sports.”
      Section 135.4 of the Regulations of the Commissioner of Education.
      New York is not alone in having concluded that mixed competition is feasible. A new Michigan statute states:
      “Female pupils shall be permitted to participate in all noncontact interscholastic athletic activities, including but not limited to archery, badminton, bowling, fencing, golf, gymnastics, riflery, shuffleboard, skiing, swimming, diving, table tennis, track and field and tennis. Even if the institution does have a girls’ team in any non-contact interscholastie athletic activity, the female shall be permitted to compete for a position on the boys’ team. Nothing in this subsection shall be construed to prevent or interfere with the selection of competing teams solely on the basis of athletic ability.”
      M.C.L.A. 340.379(2), Pub.Act No. 138 (Mich. May 22, 1972).
      Even in Minnesota, mixed competition exists in St. Paul pursuant to an exemption from the usual League rule. See, Brenden v. Independent School District 742, supra 342 F.Supp. at 1234 n. 17.
      In addition, recently groups such as the National Collegiate Athletic Association and the Big Eight Athletic Conference have eliminated provisions in their rules which prohibited females from competing in interscholastie activities with men.

      . The District Courts are divided on the question of whether rules such as that promulgated by the Minnesota High School League are constitutional. These cases are listed anil discussed in some detail in Note, Sex Discrimination in High School Athletics, 57 Minn.L.Rev. 339 (1972).


source: Caselaw Access Project

author: RIVES, Circuit Judge:

license: Public Domain

text:
    J. P. STEED, Plaintiff, v. CENTRAL OF GEORGIA RAILWAY COMPANY, Defendant-Third Party Plaintiff-Appellee, v. RIEGEL TEXTILE CORPORATION, Third Party Defendant-Appellant.
    No. 72-2609.
    United States Court of Appeals, Fifth Circuit.
    May 1, 1973.
    James E. Clark, Birmingham, Ala., for appellant.
    Will Sadler, Jr., W. J. Sullivan, Birmingham, Ala., for appellee.

      Before RIVES, GOLDBERG and MORGAN, Circuit Judges.
   RIVES, Circuit Judge:

In this diversity case, Riegel Textile Corporation appeals from a summary judgment granted against it for $403,105.60 on the motion of Central of Georgia Railway Company. We reverse.

The claim arises out of an accident that occurred on December 30, 1966, when J. P. Steed, a trainman-employee of Central, was injured while switching railroad cars for Central to the plant of Riegel in Trion, Georgia. A moving car, on which Steed was riding, derailed causing Steed’s legs to be pinned between the side of the car and the loading platform on Riegel’s premises. One of Steed’s legs was traumatically amputated approximately 3% inches below the knee and the other was severely injured.

On March 1, 1967, Steed filed a Federal Employer’s Liability Act suit against the Central of Georgia in the Circuit Court of Jefferson County, Alabama. On December 9, 1968, Central filed a third-party complaint in that case against Riegel seeking indemnification from Riegel in the event of a recovery by Steed against Central. The third-party complaint is based upon a written track agreement dated April 24, 1948, which was in effect between Riegel and Central at the time of the accident. The specific language in the agreement made the basis of the third-party claim reads as follows:

“The Tenant (Riegel) also agrees to indemnify and hold harmless the Railway (Central of Georgia) from loss, damage, or injury from any act or omission of the Tenant, its employees or agents, to the person or property of the parties hereto and their employees and the person or property of any other person or corporation, while on or about said track; and if any claim or liability other than from fire shall arise from the joint or concurring negligence of the parties hereto, it shall be borne by them equally.”

Two other provisions of the track agreement pertinent to the case read as follows :

“2. The Tenant (Riegel) will pay for, own and maintain the entire track from the point of the switch to the end of the track, or about 720 feet in length, as shown in green on said print.
* * * * * *
“4. If the Tenant fails to maintain said track in safe operating condition, as prescribed by the railway, the Tenant agrees that the railway may put it in repair at the Tenant’s expense or may discontinue operating thereover.”

On May 1, 1969, Riegel filed a petition for the removal of the entire case to the federal court. On May 2, 1969, the district court, on motion to remand, entered an order remanding the original complaint (Steed v. Central) to the state court, but retaining jurisdiction over this third-party complaint. That action of the district court was affirmed by the Fifth Circuit in Central of Georgia Railway Co. v. Riegel Textile Corp., 1970, 426 F.2d 935.

The trial of the FELA case in the state court occurred in June, 1969, resulting in a judgment in favor of Steed and against Central in the amount of $500,000. On November 21, 1969, the state trial judge entered a remittitur reducing the judgment to $300,000, and otherwise overruled Central’s motion for a new trial. The remittitur was accepted by Steed. On April 8, 1971, the Alabama Supreme Court affirmed in Central of Georgia v. Steed, 287 Ala. 64, 248 So.2d 110.

The third-party complaint against Riegel had been held in abeyance pending the final disposition of the primary case (Steed v. Central) in the state courts. The amount of Steed’s recovery from Central having been finally established in the state courts, the issue in the district court on the third-party complaint was whether Riegel should reimburse Central as to all, or one-half, or none of Central’s total outlay in the case. The parties stipulated that the matter of Riegel’s liability must be determined in accordance with the above-quoted provisions of the track agreement and with the laws of the State of Georgia where the accident occurred.

The parties further stipulated that, by certified mail on March 23, 1967, Central made a demand on Riegel based on the terms of the 1948 track agreement. However, Riegel contended that there was an obligation upon Central to promptly notify Riegel, as indemnitor, that an accident had occurred and that Central faced a loss which it expected Riegel to defend and indemnify. Riegel further contended that such notice and demand was not made by Central within a reasonable time after the filing of Steed’s complaint against Central. Central, however, took the position that regardless of when demand was made upon Riegel as indemnitor, Riegel had actual notice of the accident since it occurred on its premises. Riegel, nonetheless, claimed the right to contest the reasonableness of Central’s actions, and whether Central reasonably took steps to settle the case prior to suit being filed by Steed and demand being made by Central upon Riegel.

Central took the position that since it gave Riegel notice of the filing of Steed’s lawsuit and gave it an opportunity to defend, while Riegel refused, the final judgment in Steed’s ease is conclusive against Riegel to the effect that Steed was not furnished a safe place to work. On the other hand, Riegel contended that the judgment against Central in the state court is a prima facie showing that Central was negligent, and that there was at least joint and concurring negligence by Central and Riegel.

It was stipulated that either party may introduce into evidence any portion of the testimony of the witnesses or other evidence introduced at the trial of the case of Steed v. Central in the state court, and that either party may use or call as a witness any party who testified at the previous trial in the state court in lieu of, or in addition to, his testimony at said trial. In addition, extensive depositions were taken both by Central and by Riegel in this third-party action.

Central moved for summary judgment based on the record in the case of Steed v. Central of Georgia Railway Co., Case No. 16281, in the Circuit Court for the Tenth Judicial Circuit of Alabama, including the record on appeal therein and the opinion of the Supreme Court of Alabama, the pleadings and admissions, and all depositions taken in the case. Unfortunately, the district court provided no key as to the facts which it considered important, nor did it elucidate its rationale for granting Central summary judgment against Riegel for full indemnity. Rule 52(a), F.R.Civ.P., provides that findings of fact and conclusions of law are unnecessary on decisions of motions for summary judgment. Nonetheless, as Judge Hutcheson commented in United States for Use of Industrial Instrument Corp. v. Paul Hardeman, Inc., 5th Cir. 1963, 320 F.2d 115, 116:

“ * * * they are certainly permissible and the practice has been commended as greatly helpful to the appellate court in making clear the basis for the trial court’s decision. 3 Barron & Holtzoff, Federal Practice and Procedure, Sec. 1242 at 201 (Wright ed. 1958).”

On appeal from a summary judgment, the record must be viewed in the light most favorable to the party opposing the motion. The moving party bears the burden of showing both that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

This Court is not now called on to discuss and decide the many complex and difficult questions of fact and law remaining to be settled in this third-party action — such, for example, as the construction and application of the indemnity agreement; whether, as between Central and Riegel, the negligence of either has been conclusively established; if so, whether such negligence was sole, joint, or concurring; questions of proximate causation; and many other questions. Central simply has not met the heavy burden resting on it, as the party moving for summary judgment, to show as a matter of law that Riegel should reimburse Central for all, for one-half, or for any part of Central’s total outlay in the case. This Court makes no determination or intimation as to any of the questions. The judgment is reversed and the case is remanded for a trial on its merits.

Reversed and remanded.

      . Poller v. Columbia Broadcasting System, 1962, 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458; Pogue v. Great A&P Tea Co., 5th Cir. 1957, 242 F.2d 575, 576; 3 Barron & Holtzoff (Wright Rules ed.) § 1242, p. 198 n. 46.

      . Rule 56(c), F.R.Civ.P.; Palmer v. Chamberlin, 5th Cir. 1951, 191 F.2d 532, 540.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Arturo GARAY and Jose Medrano Torres, Defendants-Appellants.
    No. 72-3537.
    United States Court of Appeals, Fifth Circuit.
    May 14, 1973.

      Joseph J. Rey, El Paso, Tex., for defendants-appellants.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ralph E. Harris, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.
    Before TUTTLE, THORNBERRY and DYER, Circuit Judges.
   PER CURIAM:

Garay and Torres appeal from their jury-trial conviction for possession of approximately fifty-two pounds of marijuana with intent to distribute, in violation of 21 U.S.C. § 841. Aside from two contentions that we view as merit-less, appellants argue that the trial court erroneously overruled their motion to suppress the marijuana and certain airline tickets, boarding passes, and baggage cheeks admitted against them. Finding that the marijuana was secured through an unlawful search, we reverse the convictions.

The events culminating in appellants’ arrest began on June 8, 1972, when a United States Customs Agent in Detroit notified Customs Agent Compton in El Paso that appellant Torres, a suspected narcotics trafficker, would soon transport a quantity of narcotics from El Paso to Detroit. The following day Compton went to El Paso International Airport, where he learned that' Torres and appellant Garay had made reservations together to fly to Detroit that day. By the time Compton made this discovery, Garay had already departed alone for Detroit; Compton observed Torres take a later flight to Detroit. Later that day, Customs Agent Yankowski watched Torres deplane in Detroit, and observed him waiting in the terminal building until Torres received a message over the public address system to “contact A. Garay or call A. Garay.” Torres returned to El Paso on June 13, 1972, and customs agents established intermittent surveillance of his activities there.

At about 2:45 p. m. on June 21, 1972, appellant Garay entered the El Paso International Airport carrying two suitcases. He purchased tickets for himself and appellant Torres for a Continental Airlines flight departing for Detroit via Chicago at 2:55 p. m. Carrying the suitcases, he hurried to the departure gate, but missed the 2:55 flight. The ticket, agent who sold him the tickets observed him leaving the airport shortly thereafter without the bags; presumably, he had checked them at a baggage area near the departure gate.

At 3:45 that afternoon, Agent Compton and five other customs agents arrived at the airport, having received word from a border patrolman stationed there that appellants Garay and Torres were preparing to return to Detroit. They had no warrants authorizing an arrest or search of appellants; but prior to their arrival at the airport they had telephoned a United States Magistrate in El Paso, informing him of the results of their investigation, and telling him that appellants’ imminent departure made it imperative to proceed without a warrant. The Magistrate agreed, and assured the agents that there was probable cause to conduct a search.

Later that evening appellant Garay entered the airport carrying a ticket, a boarding pass, and the baggage cheeks for the suitcases he had left at the departure area, and walked briskly toward the Continental Airlines boarding area where a flight was to depart momentarily for Detroit. Minutes later appellant Torres entered carrying his ticket. Compton and the other agents detained appellants, and took the tickets, boarding passes, and baggage checks from them. By this time the two suitcases had been loaded aboard the plane. A Continental employee removed them from the plane and gave them to Compton, who opened them and discovered that they contained a substance later determined to be marijuana. Appellants were then formally arrested.

Appellants contend that the warrantless search of the suitcases which yielded the marijuana was invalid under the Fourth Amendment. Subject only to a “few specifically established and well-delineated exceptions,” searches conducted without the prior issuance of a warrant are per se unreasonable. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The burden of demonstrating the availability of an exception to the warrant requirement is on the party seeking to validate the warrantless search. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). The Government, relying on Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), seeks to bring the instant case within the “exigent circumstances” exception by arguing that, at the time the border patrolman first informed the agents that appellants were preparing to return to Detroit, prompt action was required lest appellants depart for Detroit with the suitcases, thereby foreclosing any opportunity for a search.

While the exigencies of the situation may well have justified the warrantless detention of appellants, they cannot validate the search of the suitcases made at a time when appellants were under restraint, if not under formal arrest. At that point, appellants were incapable of concealing or destroying the suitcases or their contents. Nor was there any significant probability that the suitcases would escape search by being moved to Chicago or Detroit aboard the airplane, for the officers, through their possession of the baggage checks identifying the suitcases, had effective control over their movement. Even if the officers had been unable to retrieve the bags before the plane departed El Paso, they could have arranged with agents in Chicago or Detroit to intercept the bags there. Thus, the mobility of the bags at the time of seizure does not bring the instant case within the doctrine of Carroll, supra, because their mobility was at all pertinent times subject to the control of the arresting officers. In short, the officers could and should have held the bags until they obtained a warrant authorizing an examination of their contents.

Because the marijuana introduced at trial was the product of an unlawful search, the judgment is reversed and the case remanded for further proceedings.

      . These contentions are (1) that the in(iietment was invalid because it was returned three days before laboratory tests definitely established that the substance in question was marijuana, and (2) that the trial court erroneously admitted prejudicial hearsay testimony,

        . Testimony at trial did not establish whether the airline employee removed the suitcases at the direction of the customs agents. Nevertheless, the only reasonable hypothesis under these circumstances is that the agents directed him to remove the suitcases, which they identified by means of the baggage checks they had taken from appellants. The Government does not contend otherwise. Moreover, it is undisputed that the actual search of the suitcases was conducted solely by Government agents. The instant case therefore does not present the question whether the search was conducted by private citizens and thus was immune to Fourth Amendment restraints. See, e. g., Corngold v. United States, 9th Cir. 1966, 367 F.2d 1.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joe Leal MORALES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Rudolfo Rodriguez GONZALES, Defendant-Appellant.
    Nos. 72-2635, 72-2777.
    United States Court of Appeals, Fifth Circuit.
    April 18, 1973.

      John M. Killian, San Antonio, Tex. (Court-Appointed), J. Douglas McGuire, San Antonio, Tex. (Court-Appointed), for defendant-appellants.
    William S. Sessions, U. S. Atty., James F. Bock, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
    Before RIVES, GOLDBERG and MORGAN, Circuit Judges.
   RIVES, Circuit Judge:

Joe Morales and Rudolfo Gonzales, along with Andres Vargas, were tried jointly and each was found guilty of conspiring to defraud an agency of the United States Government, the Bureau of Narcotics and Dangerous Drugs (hereafter BNDD), by intentionally selling to a BNDD agent a nonnarcotic substance (wheat) which they represented to be heroin.

The fourth defendant, Juan Luis Davila, who planned the sale, pleaded guilty and testified as the principal government witness against each of his codefendants. Neither Gonzales nor Vargas testified on his own behalf. Morales did testify, admitting participation in the sale, but insisting that Davila deceived him into believing that the transaction was a normal sale of genuine heroin to a nonagent.

On appeal, Morales- argues (1) that the trial court erred in allowing the jury to convict on the strength of the uncorroborated, “incredible” testimony of Davila and (2) that admission of the extra-judicial confessions of Gonzales and Vargas violated the rule of Bruton v. United States, 1968, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, by inculpating Morales without affording him the constitutional right to confront his accusers. Gonzales attacks the propriety of his conviction on the two grounds asserted by Morales and contends, in addition, that he was entrapped. We reverse Morales’ conviction, but affirm the conviction of Gonzales.

THE CONSPIRACY

By his own admission, Davila set in motion the bizarre chain of events, which culminated in the fraudulent sale. (Rec Vol. II, p. 181.) He contacted BNDD Agent Nattinger for whom he had worked as an informer in the past, identified himself, and promised to arrange a heroin purchase between an undercover BNDD agent and a notorious local pusher named Esquivel (see Agent Nattinger’s testimony at Rec. Vol. II, pp. 27-29). Davila had no direct contact with Esquivel; he lied to the government from the start.

According to the plan reached between Davila and the government, BNDD Agent Lozano would pose as an out-of-town buyer from Houston and rent a room at the Holiday Inn in San Antonio where the exchange with Esquivel would take place under heavy surveillance.

After the scheme was formulated, Davila enlisted the aid of appellants who agreed to help make the delivery. Gonzales accompanied Vargas who drove to the Holiday Inn parking lot on March 17, 1972. Gonzales handed the crucial package to Morales who was waiting in the parking lot. Morales then proceeded to the motel room and, posing as Esquivel, gave the package to Lozano in exchange for $3,000 (Rec. Vol. II, pp. 146-148). An analysis of the package contents immediately after the sale revealed that Agent Lozano had purchased wheat, not heroin. The four defendants were quickly apprehended and charged with defrauding the government.

MORALES’ CONVICTION

The only direct evidence linking either appellant with the “conspiracy” to defraud the government was the accomplice testimony of Davila. Both a dope addict and convicted felon (Rec. Vol. II, p. 202), Davila had worked as an informer for the BNDD in the past (Rec. Vol. II, p. 34). He testified that Morales and Gonzales discussed with him the possibility of “burning” Agent Lozano, that Gonzales agreed to construct the fake heroin package, and that both appellants knew Rudy Lozano’s true identity. According to Davila, the $3,000 purchase price paid to Morales by Agent Lozano was to be split three ways —one third for each appellant and one third for Davila.

In striking contrast to Davila’s tale, Morales testified that he did not know that Lozano was an undercover agent or that the package was a sham (Rec. Vol. II, p. 267). He insisted that he would never have knowingly delivered the package to a government agent.

(A) Davila’s Testimony

In Tillery v. United States, 5 Cir. 1969, 411 F.2d 644, 647, this Court held that,

“In determining whether there is substantial evidence in cases where a conviction rests upon the uncorroborated testimony of an accomplice, the general rule is that the uncorroborated testimony of an accomplice may support a conviction if it is not incredible or otherwise unsubstantial on its face [citing cases].”

Relying upon the rule in Tillery, coupled with the trial judge’s characterization of Davila’s testimony as “inconceivable,” Morales argues that the district court erred in allowing the jury to convict him on the strength of Davila’s unsupported testimony.

Although Davila’s testimony was both improbable and crucial to Morales’ conviction, the principles enunciated in Tillery, supra, do not dictate a reversal here. Tillery is distinguishable from the instant case in two important respects.

1) In Tillery the accomplice who uttered the damaging testimony had made earlier contradictory' statements about the crime. Thus, the testimony of the Tillery accomplice was both incredible and demonstrably unreliable. By contrast, Davila’s testimony, although dubious and at times ambiguous, was not rendered unreliable by any prior contradictory statements.

2) However, a more important distinction can be drawn. In Tillery, the trial court permitted the jury to decide the defendant’s guilt on the basis of accomplice Padgett’s unsupported story “without the benefit of an instruction that accomplice testimony should be received with caution and viewed with skepticism.” (411 F.2d at 646.) Such an admonition was direly needed in Tillery, and the absence of a proper limiting charge was the key reason for reversal in that case.

In the present case, the trial judge clearly instructed the jury “that the testimony of an accomplice should be closely examined, received with caution and weighed with great care.” His charge correctly placed Davila’s testimony under the harsh light required by Tillery. If, after viewing his testimony with a skeptical eye, the jury chose to believe Davila and base its verdict on his testimony alone, that was its prerogative. Diggs v. United States, 9 Cir. 1915, 220 F. 545, aff’d, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442; Lyles v. United States, 5 Cir. 1957, 249 F.2d 744; Williams v. United States, 8 Cir. 1964, 328 F.2d 256.

Davila testified at trial that he was both a dope addict and a convicted felon (Rec. Vol. II, p. 202). That fact merited jury consideration, but did not, by itself, render Davila’s testimony legally insubstantial.

B) The BRUTON Rule Violation

During the course of the trial, two oral confessions attributed to Vargas and Gonzales respectively were admitted without objection by Morales.

Gonzales’ confession, uttered voluntarily after completion of the sale, was revealed by Agent Wood in the following exchange at trial:

“A. Mr. Gonzales stated to himself and Agent Nattinger that he had been approached by Mr. Morales and Juan Davila to make a turkey package.
“Q. Would you explain to the jury and to me please what a turkey package is?
“A. A. turkey package is a dumb package. In this case it would be, it was the heroin — it would be a dumb package of heroin which was the flour.
“Q. Did he tell you whether or not he was to receive anything for this?
“A. Yes, sir. He did. He said Mr. Morales and Mr. Davila were going to give him a thousand dollars for it.”

(Rec. Vol. II, p. 168.) Gonzales’ confession expressly charged Morales with knowledge that the package was fake, but not with knowledge of the agent’s identity.

Vargas’ “confession” consisted of the single, cryptic remark, “You have me in a conspiracy” (Rec. Vol. II, p. 86). Because of its ambiguity, that statement does not carry the incriminating force of Gonzales’ confession, and, by itself, constitutes an insignificant link between Morales and the fraud.

Morales contends that introduction of the confessions of Vargas and Gonzales, neither of whom testified at trial, violated his sixth amendment right to confrontation, recently delineated in Bruton v. United States, supra. We agree that admission of Gonzales’ confession violated Morales’ Bruton rights and, for that reason, reverse Morales’ conviction.

In Bruton the Supreme Court held that introduction of the extrajudicial confession of one codefendant which inculpated another violated the latter’s right to confrontation when the confessor chose not to testify. The Bruton Court openly rejected the rationale of Delli Paoli v. United States, 1956, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278, that encroachment on the right - to confrontation could be avoided by an instruction to the jury to disregard the confessor’s statement incriminating the nonconfessor in determining the nonconfessor’s guilt. Instead, the Court ruled that such an admonition is intrinsically ineffective and held that admission of the codefendant’s inculpatory statement was reversible error in spite of the trial court’s cautionary charge.

In the present ease, the trial judge instructed the jury to disregard Vargas’ statement in determining the guilt of appellants. (Rec. Vol. II, pp. 377, 378.) Inexplicably, he did not make a similar charge with respect to the more damaging statement of Gonzales. It is clear, however, that even had the jury been warned to ignore Gonzales’ statement in determining Morales’ guilt, admission of that statement would have violated the Bruton rule.

In two recent decisions, Harrington v. California, 1969, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284, and Schneble v.Florida, 1972, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340, the Supreme Court refused to overturn petitioner’s conviction where a codefendant’s confession was introduced at trial in violation of the Bruton rule, because the overwhelming evidence of petitioner’s guilt rendered the Bruton violation “harmless error beyond a reasonable doubt.” While these decisions certainly confine the holding in Bruton, they do not dilute the admonition in Chapman v. California, 1967, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705, that constitutional errors affecting substantial rights cannot be considered harmless; and they are clearly inapplicable in a case such as this where the two extra-judicial statements constitute a significant portion of the evidence of guilt, supplemented only by the doubtful testimony of an accomplice.

Morales did not object to the introduction of Gonzales’ oral confession at trial. Thus, he cannot raise the issue of the Bruton violation for the first time on appeal, unless the introduction of Gonzales’ confession constituted plain error. Rule 52(b), F.R.Crim.P. In view of the importance attached to the right to confrontation by recent Supreme Court decisions, we hold that the denial of that right in this case was plain error.

Rule 52(b), F.R.Crim.P., states that, “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Although several different definitions of “plain error” have been fashioned by the courts, the ultimate decision whether or not to take notice of an error not raised below must depend on the facts of the particular case. Dupoint v. United States, 5 Cir. 1968, 388 F.2d 39, 45; Sykes v. United States, 5 Cir. 1966, 373 F.2d 607, cert. denied, 386 U.S. 977, 87 S.Ct. 1172, 18 L.Ed.2d 138.

The Supreme Court has not had occasion to decide whether a Bruton violation constitutes plain error, but the language used in the Bruton line of cases demonstrates the Court’s strong commitment to correcting the “serious flaw” created by admission of a Bruton-type confession. In Bruton, supra, 391 U.S. at 137, 88 S.Ct. at 1628, the Supreme Court observed that “the introduction of Evans’ confession posed a substantial threat to petitioner’s right to confront the witnesses against him” [emphasis added], and the Court reiterated the importance of that right when it held the Bruton rule retroactive in Roberts v. Russell, 1968, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100, stating that,

“Despite the cautionary instruction, the admission of a defendant’s confession which implicates a codefendant results in such a ‘serious flaw.’ The retroactivity of the holding in Bruton is therefore required; the error ‘went to the basis of fair hearing and trial because the procedural apparatus never assured the [petitioner] a fair determination’ of his guilt or innocence.”

(Emphasis added.) (392 U.S. at 294, 88 S.Ct. at 1922).

In view of the importance accorded the Bruton rule by the Supreme Court, coupled with the fact that Gonzales’ confession represents one of the chief links between Morales and the fraud, we hold that introduction of Gonzales’ confession seriously impaired Morales’ right to a fair trial and, therefore, was plain error.

GONZALES’ CONVICTION

A) The Accomplice Testimony

Gonzales, like Morales, contests the propriety of allowing the jury to convict on the uncorroborated testimony of Davila. For the reasons expressed previously, we believe the trial court properly followed the procedure set out in Tillery, supra, obviating any argument that Davila’s testimony was erroneously submitted to the jury.

B) Application of the BRUTON Rule

In his brief on appeal, Gonzales duplicates Morales’ argument and claims that both his own confession and that of Vargas were introduced in violation of the Bruton rule. However, Gonzales has no standing to attack the introduction of his own confession on Bruton grounds. The rule enunciated in Bruton stems from the right to confrontation and is designed to protect the nontestifying confessor’s codefendant, not the confessor himself.

Of course, Gonzales does have standing to question the' introduction of Vargas’ statement on Bruton grounds. But Gonzales did not object to the admission of Vargas’ statement at trial, and that statement added very little weight to the government’s case against Gonzales. For that reason, we hold that introduction of Vargas’ statement which, unlike that of Gonzales, only tenuously connected appellants with the crime, did not constitute a sufficiently serious flaw to rise to the level of plain error.

C) Entrapment

Gonzales raises the additional defense of entrapment. A careful study of the record indicates that Davila might have tricked his compatriots, but the facts do not suggest entrapment. No government official implanted in Gonzales’ mind the disposition to commit this crime. Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L. Ed. 413; 73 Harv.L.Rev. 1333 (1960). Nor does the factual pattern of this sale indicate impermissibly vigorous government involvement sufficient to constitute entrapment as a matter of law. United States v. Bueno, 5 Cir. 1971, 447 F.2d 903.

Accordingly, the judgment of conviction of Gonzales is affirmed, while the judgment of conviction of Morales is reversed, and the case as against Morales is remanded for another trial.

Affirmed as to Gonzales; reversed and remanded as to Morales.

      . The indictment contained one count and charged six overt acts in furtherance of a conspiracy punishable under 18 U.S.C. § 371.

      . One of the discussions supposedly took place at the Comet Drive-In, as revealed by the following colloquy :
      “Q. What happened after you got there [Comet Drive-In] ?
      “A. Joe [Morales] went and called Iludy [Gonzales] and Rudy crossed the street and started talking to Joe. Then I got into the conversation with them.
      “Q. What were they talking about?
      “A. About Rudy Lozano there.
      “Q. What were they saying?
      “A. Well, about, you know, about him having them $3,000 and all, figuring out a way of how to burn him.
      “Q. What do you mean ‘burn him’?
      “A. Trying to figure out how would be the best way to go about delivering something to where he would go for it without putting — having to put any heroin in front.”
      Rec. Vol. II, pp. 189-190.

      . Davila stated, at p. 190 of the Record, Vol. II:
      “Well, that was going to be left up to Rudy Gonzales. He was going to fix that package up. AA’e didn’t know what was going to be in the package. AVe just knew it was going to be some kind of powder to where it looked like heroin.”

      . When pressed on cross-examination about his earlier, equivocal assertion that Rudy Gonzales “knew more or less” that Lozano was an undercover agent, Davila replied: “Well, ‘more or less’ is the same thing, like knowing; to me, it is.” (Rec. Vol. II, p. 212.)

      . After the sale, Morales was apprehended with $950 of the marked money on his person. This fact supports Davila’s assertion that the profits were to be evenly divided and belies Morales’ claim that lie was participating in the transaction as a favor to Davila, expecting only a fix and a little money for his efforts. (Rec. Vol. II, pp. 255, 256.)
      However, Morales claimed that he was merely holding the money for Davila (Rec. Vol. II, p. 258), and in any event the ultimate disposition of the $3,000 does not directly bear on the critical issue — the extent of Morales’ involvement in the plot to defraud.

      . Morales parried repeated leading questions by government counsel designed to elicit an admission, arguing quite logically that, in his view, delivery of either heroin or nonheroin to a government agent while under surveillance would be suicide.

      . At one point during the trial, outside the presence of the jury, the trial judge openly expressed his disbelief in Davila’s story:
      “I just can’t see, to save my life, why any people who are just reasonably intelligent would conspire to take money from a federal agent, that it is just so impossible and improbable and inconceivable to me that I just can’t — I just can’t visualize it in my mind.”
      Rec. Vol. II, p. 316.
      Later at the sentencing proceedings after trial, the trial judge reiterated his incredulity:
      “I want to clarify my position. I still think it is a truth — is—stranger-than-fiction type of story. I was not the fact-finder. I wasn’t passing upon the credibility of either of the two witnesses [Davila or Morales]. I was just saying that probably what Mr. Morales said to the effect that there was no way in which he would have done what he was accused of having done, that this would comport more with my idea of what tlie situation might have been, but I didn’t want to, impliedly or otherwise, indicate that I was taking away from the jury the fact finding job.”
      Rec. Vol. II, p. 398.

      . Although the government contends that Davila’s testimony was buttressed by the extrajudicial confessions of Gonzales and Vargas, Gonzales’ confession was improperly admitted (see discussion of Bruton rule, infra), and Vargas’ “confession” was too ambiguous to represent any more than a weak implication that appellants knew of tlie plot to defraud. Hence, Davila’s testimony stands alone as evidence of appellants’ guilt.
      At page 11 of its brief, the government argues that “there was strong corroboration of the accomplice’s testimony, provided by several narcotics agents who had witnessed tlie events outside the motel and bad participated in the arrests.” This statement misses tlie point. Appellants admit participation in the sale; they only deny knowledge of the fraud. The eyewitness testimony of the agents to which the government brief refers merely places the appellants at the scene of the crime; it does not establish their awareness of the plot to deceive — a necessary element of the crime for which they are charged.

      . Prior to his testimony at trial in Tillery, the accomplice, Padgett, had given four different, contradictory statements regarding the burglary. This prompted the court in Tillery to observe that, “Padgett’s crucial testimony was extremely unreliable, if not incredible and unsubstantial, in view of his earlier contradictory statements in which he indicated less concern with the truth than with his own skin * * (411 F.2d at 648.)

      . Recognizing the crucial importance of a limiting charge, the Tillery court observed that,
      “by failing to warn the jury about Padgett’s reliability in this case, the trial court presented the evidence to the jury in an improper perspective, and the jury may have felt bound to accept it as true.”
      411 F.2d at 648. The best indication that the Tillery court considered omission of an admonishing charge decisive was its holding that such failure was plain error (411 F.2d at 648).
      In the earlier case of Williamson v. United States, 5 Cir. 1964, 332 F.2d 123, this Court established the rule followed in Tillery that failure to admonish the jury to narrowly scrutinize the testimony of an accomplice is plain error.

      . The entire charge to the jury on accomplice testimony consisted of the following:
      “All evidence from a witness whose self-interest or attitude is shown to be such as might tend to prompt testimony unfavorable to an accused should be considered with caution and weighed with great care.
      “In this case one of the defendants, I previously told you, has entered a guilty plea and has testified. lie would fall under what we call the category of an accomplice. He was one who admittedly was involved in this affair, this offense. So, I charge you that an accomplice is one who voluntarily and with common intent participates with another person in the commission or planning of a crime. An accomplice does not become incompetent as a witness because of participation in the criminal act charged. On the contrary, the testimony of an accomplice alone, if believed by the jury, may be of such weight to sustain a verdict of'guilty even though not corroborated or supported by other evidence. However, the jury should keep in mind that the testimony of an accomplice should be closely examined, received with caution, and weighed with great care.
      “On the other hand, if the jury believes the testimony of an accomplice to be true beyond a reasonable doubt, that testimony is sufficient to convict a defendant even though it is not corroborated by any other evidence. The jury should not convict a defendant upon the unsupported testimony of an accomplice unless it believes the unsupported testimony beyond a reasonable doubt.”
      Rec. Vol. II, pp. 370-71.

      . In Williams v. United States, supra, p. 259, the court stated:
      “Miss Walker could be regarded as an accomplice in the commission of the offenses involved; she was a user of narcotics; she had a previous felony conviction for narcotic possession; and apparently the Government chose not to prosecute her in the present situation. These were matters which might influence her testimony. They would not, however, of themselves make her testimony so legally unsubstantial or lier credibility as a witness so legally infirm as to require reasonable doubt to be recognized as a matter of law.”
      In the present case, the trial judge’s cautionary instructions to the jury on accomplice testimony adequately protected the defendants by subjecting Davila’s testimony to close scrutiny.

      . Vargas’ confession is ambiguous because it could mean several different things: that Vargas was caught in a conspiracy to sell heroin, that he was caught in a conspiracy to defraud a nongovernmental agent, or that he was caught in a plot to defraud the government. In addition, the term “conspiracy” might refer to a combination of only two persons or to individuals entirely distinct from appellants. In other words, Vargas’ “confession” does not directly inculpate anyone.

      . Improper admission of Gonzales’ confession in itself requires reversal of Morales’ conviction. Thus, the prejudicial effect of Vargas’ statement on the jury’s determination of Morales’ guilt is academic.
      However, the admissibility of Vargas’ statement is important with respect to Gonzales’ conviction, because (for reasons to be explained subsequently) Gonzales had no standing to attack the admission of his own confession on Bruton grounds.

      . In overruling Delli Paoli v. United States, the Court relied upon the principles expressed in Jackson v. Denno, 1964, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, and adopted Judge Hand’s view that the limiting instruction is a recommendation to the jury to perform mental gymnastics beyond its powers.

      . In both cases, ample evidence was available to demonstrate petitioner’s guilt without reliance upon his codefendant’s confession. In Harrington v. California the evidence against petitioner included the testimony of several eyewitnesses placing him at the scene of the murder. In Schneble v. Florida the petitioner himself made a detailed confession.

      . See Wright, Federal Practice & Procedure: Criminal § 856, pp. 372, 373, where cases are cited variously defining “plain error” as, “ ‘error both obvious and substantial,’ 82 or ‘serious and manifest errors,’ 83 or ‘seriously prejudicial error,’ 84 or ‘grave errors which seriously affect substantial rights of the accusecl’,85
      “82. Both obvious and substantial

      Sykes v. United States, C.A.5th, 1966, 373 F.2d 607, 612.
      “83. Serious and manifest

      Feutralle v. United States, C.A.5th, 1954, 209 F.2d 159, 163.
      “84. Seriously prejudicial

      Cleaver v. United States, C.A.10th, 1957, 238 F.2d 766, 770. Himmelfarb v. United States, C.A.9th, 1949, 175 F.2d 924, 950, certiorari denied 70 S.Ct. 103, 338 U.S. 860, 94 L.Ed. 527.
      “85. Grave errors affecting substantial rights

      Wright v. United States, C.A.10th, 1962, 301 F.2d 412, 414.”
      See also Moore’s Federal Practice § 52.02(2).

      . In United States v. Davis, 1972, 459 F.2d 167, 172, the Sixth Circuit (in dictum) predicted our holding here, reasoning that,
      “The Bruton rule, applied retroactively in Roberts v. Russell [citation omitted] seeks to avoid a serious flaw in the fact-finding process at trial. Any violation of that rule • might, therefore, present an appropriate occasion for the recognition of a plain error.”

      . Since the existence of plain error depends on the facts of the particular case, our holding that introduction of Gonzales’ confession constituted plain error in no way creates a hard and fast rule. In another case, where the evidence of guilt is stronger or the incriminatory implication of the confession weaker, introduction of such a statement might not undermine the fairness of the trial.

      . In his brief and argument on appeal, Gonzales does not question the voluntariness of his own confession, but instead mimics Morales’ argument that its admission violated the Bruton rule.

      . Compare the situation in Bruton, supra, 391 U.S. p. 127, 88 S.Ct. p. 1623, where the Court noted that,
      “Plainly, the introduction of Evans’ confession added substantial, perhaps even critical, weight to the Government’s case in a form not subject to cross-examination.”