author: GRANT, Senior District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Uless Grant MANSON et al., Defendants-Appellants.
    No. 73-1055.
    United States Court of Appeals, Seventh Circuit.
    Argued June 13, 1973.
    Decided April 9, 1974.

      Robert G. Mann, Indianapolis, Ind., for defendants-appellants.
    Stanley B. Miller, U. S. Atty., William F. Thompson, Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.
    Before FAIRCHILD, Circuit Judge, SPRECHER, Circuit Judge, and GRANT, Senior District Judge.

       Senior District Judge Robert A. Grant of the Northern District of Indiana is sitting by designation.

   GRANT, Senior District Judge.

The appellants and several other defendants were indicted as joint participants in an Indianapolis gambling operation. Count I charged that the appellants and seven other defendants engaged in a conspiracy to conduct an illegal gambling business in violation of 18 U.S.C. § 371. Count II charged that the appellants and six of the other defendants engaged in the same illegal gambling business in violation of 18 U.S.C. § 1955. Prior to trial the indictment was dismissed as to the one defendant who was charged only Count I, and as to another defendant who was charged in both Counts I and II, thus leaving seven named defendants in each Count. Appellants Blakey and Manson were tried and found guilty on both counts. In their appeal the appellants challenge: (1) whether the income tax return of an employee of the gambling business. should have been admitted in evidence; (2) the constitutionality of 18 U.S.C. § 1955; (3) whether this was an illegal gambling business “conducted by five or .more persons” within the meaning of 18 U.S.C. § 1955; and (4) whether the two counts properly charged two separate offenses.

I

Appellants assert that the trial court violated their Fifth Amendment privilege against self-incrimination when it received into evidence the 1971 Federal Income Tax Return of Irvin Kelly who was alleged to be an employee in the illegal gambling business in question. The return had been obtained from Mr. Kelly by subpoena and was introduced into evidence through the testimony of the accountant who had prepared the return from a W-2 Form and information which had been supplied by appellant Manson

It is evident that the appellants had no standing to object to the introduction of Mr. Kelly’s tax return for the reason that the privilege against self-incrimination is personal and cannot be exercised by anyone other than the person to whom the material in question belongs. Howard v. United States, 397 F.2d 72, 74 (9th Cir. 1968), and Silbert v. United States, 289 F.Supp. 318, 320-321, 325 (D.Md.1968). Nor does the fact that Appellant Manson supplied the information contained on the return to their accountant, in order to comply with tax requirements in the operation of a business, give appellants any standing to object to the introduction of the return. The privilege against self-incrimination is not available to those who turn material over to a retained accountant for the purpose of disclosure in the preparation of tax returns. Couch v. United States, 409 U.S. 322, 337, 93 S. Ct. 611, 34 L.Ed.2d 548 (1973) (Justice Brennan concurring).

II

Appellants argue that 18 U.S.C. § 1955 is unconstitutional for the reason that it prohibits gambling businesses, such as the one which they were allegedly involved in, which do not affect interstate commerce. Admittedly, there was no evidence introduced at trial which would indicate that the appellants’ gambling activities had any effect whatsoever on interstate commerce. However, accepting the government’s interpretation of the facts, the gambling business which the appellants were involved in was large enough to come within the prohibition of 18 U.S.C. § 1955. That statute provides, in pertinent part, as follows:

“§ 1955. Prohibition of illegal gambling businesses
“(a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both.
“(b) As used in this section—
“(1) ‘illegal gambling business’ means a gambling business which—
“(i) is a violation of the law of a State or political subdivision in which it is conducted;
“(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and
“(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.” 84 Stat. 922, 937.

This statute was based on a broad finding by Congress that the gambling enterprises described in the statute have sufficient impact on the interstate economy to warrant prohibition by federal criminal legislation. See 84 Stat. 936. This circuit has held that such finding is sufficient to constitutionally support the statute even when it is applied to individual members of the class whose own activities may not have a demonstrable impact on interstate commerce. United States v. Hunter, 478 F.2d 1019, 1021 (7th Cir. 1973), cert, denied, 414 U.S. 857, 94 S.Ct. 162, 38 L.Ed.2d 107. This position has been previously adopted in each circuit which had been presented with the issue. United States v. Harris, 460 F.2d 1041, 1043-1048 (5th Cir. 1972), cert, denied, 409 U.S. 877, 93 S.Ct. 128, 34 L.Ed.2d 130; United States v. Palmer, 465 F.2d 697 (6th Cir. 1972), cert, denied, 409 U.S. 874, 93 S.Ct. 119, 34 L.Ed.2d 126; United States v. Becker, 461 F.2d 230, 233-234 (2nd Cir. 1972); United States v. Riehl, 460 F.2d 454, 458 (3rd Cir. 1972); Schneider v. United States, 459 F.2d 540 (8th Cir. 1972).

Ill

The appellants have also contended that the evidence failed to establish that there were five or more persons who conducted, financed, managed, supervised, directed or owned all or part of the business in question as required to constitute a violation of 18 U.S.C. § 1955. The parties agree that from the evidence, only the appellants themselves could have been said to have financed, managed, supervised, directed or owned all or part of the business. There were at least three other persons, however, who acted as ticket sellers or runners in the business. Appellants argue that these other persons could not be counted as part of the “five or more persons who conduct, finance, manage, supervise, direct, or own all or part” of the illegal gambling business as required by 18 U. S.C. § 1955. However, this court has re- ' cently held that such “street level employees” as ticket sellers and runners are to be counted as persons who “conduct” the illegal gambling business as provided in the statute. Hunter, supra, 478 F.2d at 1021. Accordingly, we conclude that the evidence did establish the existence of the required number of persons to constitute a violation of 18 U.S. C. § 1955.

IV

Finally, the appellants contend that convictions on both Counts cannot stand because they do not charge separate offenses. Clearly, two offenses can only be separately prosecuted and punished if each requires proof of an element which the other does not. In this action, Count I charged that the appellants and other defendants conspired to engage in an illegal gambling business, in violation of 18 U.S.C. § 371. Count II charged that the appellants and other defendants engaged in an illegal gambling business, in violation of 18 U.S.C. § 1955. Seven defendants were tried and convicted on each count.

Some circuits have found that where more than five persons were charged with both conspiracy to violate 18 U.S.C. § 1955 and a substantive violation of § 1955, the offenses were separate and both offenses could be prosecuted. However, in a case where there were thirteen persons charged with both conspiracy to violate § 1955 and substantive violation of the statute, this circuit has recently rejected that argument and pointed out:

. an argument which merely emphasizes the number of the persons charged in the indictment does not identify an element of each offense which adequately differentiates the other. . . . But even though five or more persons are named in the indictment, a charge of conspiracy to violate § 1955 may not be maintained if it comprehends nothing more than the agreement which those persons necessarily performd by the commission of the substantive offense itself. Hunter, supra, 478 F.2d at 1026.

As in Hunter, we find here “no ingredient in the conspiracy [charged in Count I] which is not present in the completed crime [charged in Count II]”.

The judgments of conviction against appellants in Count I are reversed. In all other respects the judgments against appellants are affirmed.

      . The return contained statements that Mr. Kelly’s principal business activity was “Commission sales”, the name of the business was “Uless Manson 35 886P” and the business address was 437 W. North St., Indianapolis, Ind.”

      . United States v. Becker, supra, 461 F.2d at 234.


source: Caselaw Access Project

author: TRASK, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Emilio Arturo MARTINEZ-MIRAMONTES, Defendant-Appellant.
    No. 73-2548.
    United States Court of Appeals, Ninth Circuit.
    April 10, 1974.

      Robert W. Ripley (argued), Federal Defenders, Inc., San Diego, Cal., for defendant-appellant.
    David P. Curnow, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty., San Diego, Cal., for plaintiff-ap-pellee.
    Before MERRILL and TRASK, Circuit Judges, and GRAY, District Judge.

       Honorable William P. Gray, United States District Judge from the Central District of California, sitting by designation.

   TRASK, Circuit Judge:

Martinez-Miramontes appeals his conviction for possession of marijuana with intent to distribute, a violation of 21 U. S.C. § 841(a)(1). Jurisdiction in the District Court was based upon 18 U.S.C. § 3231; this court’s jurisdiction is predicated upon 28 U.S.C. § 1291. The sole issue on appeal is the propriety of the district judge’s denial of appellant’s pretrial motion to suppress.

On March 14, 1973, appellant and another individual (who was tried with the appellant and acquitted) were observed by a border patrol agent on Highway 98, near Ocotillo, California. The two individuals had crossed the highway, leaving their automobile on the roadside facing a westerly direction, and were apparently hitchhiking. The border patrol agent, who had been driving westerly on this east-west highway noticed the parked vehicle, stopped his car, and was approached by the two individuals. The agent was told that they were “out of gas.” Upon request, appellant and his companion produced valid identification cards evidencing their legal presence within the United States. The border patrol agent inquired as to the ownership of the vehicle in which appellant had been driving; he was told that the owner was not known, and that a stranger had offered the two individuals money to drive the vehicle to a certain parking lot in San Diego. The agent requested the keys to open the trunk of the automobile; his reason for this query was his impression that the rear end of the car was “hanging pretty low.” He was told that appellant and his companion had neither the ignition key nor the key to the trunk. The border patrol agent then began a search for aliens and, after removing portions of the back seat of the automobile, recognized and seized a large amount of marijuana that had been inside the trunk.

Sometime after the border patrol agent had arrived on the scene — but prior to the commencement of his search for aliens — a customs agent drove by and also stopped his vehicle. While the two individuals were talking to the border patrol agent, the customs agent approached appellant’s vehicle and “sniffed the crevice where the trunk closes and detected an odor of marijuana coming from it.” The customs agent then quietly signalled to the border patrol agent that the trunk was “loaded” with marijuana. There was conflicting testimony as to whether this signal was perceived by the border patrol agent before or after he had begun his search of the automobile.

Appellant likens the situation here to that in Almeida-Sanchez v. United States, 413 U.S. 266 (1973), where the Court held that a stop and search by a roving immigration patrol was a violation of rights guaranteed under the Fourth Amendment. But the stop of a moving car without probable cause or the search of a car parked where cars are customarily parked, without more, is the Government. United States v. Sherman, not the case which the District Court had before it here. One does not under ordinary circumstances in a remote, though traveled, area pull his ear off the road, stop, get out, and begin walking away from it. The location was 5 miles north of the Mexican border and the border patrolman had' a right and probably a duty to make inquiry.

The result of that investigation was the development of an incredibly bizarre story. Neither the defendant nor his companion owned the car or knew who the owner was. They had no evidence of ownership or right to possession. They stated they had been paid to drive the vehicle to a designated parking lot in San Diego. Yet when they were asked for the keys they said they had neither an ignition key nor a key to the trunk compartment. Their story was that they were out of gas. Presumably they were starting to walk or pick up a ride to obtain a supply of gasoline. Just how they would start the car thereafter without an ignition key was unexplained. The patrolmen noticed that the car was “low in the back” as well it would have been with approximately 442 pounds of marijuana in the trunk compartment. He concluded that it must contain either aliens or contraband. The customs officer confirmed his suspicions by indicating he had smelled the odor of marijuana.

Appellant argues that the act of the customs officer in sniffing around the crevice where the trunk closes constituted a search proscribed by the Fourth Amendment. We do not agree. We find no distinction of substance between leaning down and turning the head to look inside a motor vehicle to see articles which then come within the “plain view” doctrine, see, e. g., United States v. Belperio, 452 F.2d 389 (9th Cir. 1971), and leaning down and sniffing to detect the odor of marijuana.

The appellant relinquished his reasonable expectation of privacy in the trunk of his automobile when he loaded it with 442 pounds of an odorous weed. By the use of ordinary senses while standing in a place where the officer had a right to be standing, he could then detect the nature of the load. We held in United States v. Fisch, 474 F.2d 1071 (9th Cir.), cert, denied, 412 U.S. 921 (1973), that defendants who had discussed their criminal activities in a motel room in voices so audible as to be heard in the adjoining motel room did not retain a Katz “reasonable expectation of privacy” in their conversation. Further, no Fourth Amendment intrusion occurred when law enforcement officers listened more closely by placing themselves on the floor next to the crack beneath the door separating the two rooms. We refused to make “hair-splitting” constitutional distinctions between the two situations and likewise find no distinction in the use of the olfactory organs whether the revealing odor is detected in a stroll around the car or by a sniff over the trunk compartment. See also United States v. Capps, 435 F.2d 637, 641-643 n. 7 (9th Cir. 1970); Ponce v. Craven, 409 F.2d 621, 625 (9th Cir. 1969), cert, denied, 397 U.S. 1012 (1970).

Appellant asserts no errors arising from his trial below. Having concluded that the District Court properly denied appellant’s pretrial motion to suppress, we affirm the judgment.

      . Since the motion to suppress was denied, we must resolve this conflict favorably to 430 F.2d 1402, 1404 (9th Cir. 1970), cert, denied, 401 U.S. 908 (1971).

      . Katz v. United States, 389 U.S. 347, 351-353 (1967).


author: SHERIDAN, District Judge.

text:
    Dorothy G. AMMLUNG, Administratrix of the Estate of Russell G. Ammlung, Jr., Deceased, Appellant in No. 73-1351 v. CITY OF CHESTER et al. Appeal of AMERICAN CIVIL LIBERTIES UNION in No. 73-1352.
    Nos. 73-1351, 73-1352.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 29, 1973.
    Decided March 28, 1974.

      Larrick B. Stapleton, Philadelphia, Pa., for appellant in No. 73-1352.
    Louis J. Sinatra, Arthur Levy, Levy & Levy, Chester, Pa., for City of Chester and others.
    Michael T. McDonnell, Jr., McDonnell and McDonnell, Yeadon, Pa., for Dorothy G. Ammlung, Adm., etc.
    Before ADAMS and ROSENN, Circuit Judges, and SHERIDAN, District Judge.
   OPINION OF THE COURT

SHERIDAN, District Judge.

Appellant, Dorothy Ammlung, the ad-ministratrix of her son’s estate, brought this suit in the district court against ap-pellees under 42 U.S.C.A. §§ 1983, 1985 and 1988, seeking damages and injunc-tive relief from various alleged unconstitutional actions. The case arises out of the incidents and circumstances surrounding the death on January 24, 1970, of Russell Ammlung, appellant’s son. The facts, as set forth in the complaint, are as follows. Rusty, the decedent, age eighteen, attended a dance in the gymnasium of St. James High School in Chester, Pennsylvania, on the evening of January 23, 1970. Upon arrival at the dance Rusty checked his coat at the door. Pursuant to dance rules he removed his shoes in order to preserve the gymnasium floor. While attending the dance, at approximately 10:30 P.M., Rusty became ill and attempted to secure his coat from the cloakroom. Unable to locate his coat, he sat on the steps adjacent to the cloakroom. While sitting there, Rusty was confronted by defendant Platt, a Chester police officer on extra-duty. He had been summoned by a dance chaperone who had seen Rusty leave the gymnasium and proceed down the hall. Platt asked Rusty where his shoes were. Because of his illness, Rusty was unable to respond to the question. Whereupon, Platt, observing that Rusty was in an uncomprehending state and unable to communicate, arrested him without a warrant and charged him with “underage drinking,” allegedly on the basis that he had the odor of alcohol on his breath. Platt summoned defendants Friel and Brown, two Ches-ter police officers, who took Rusty into custody, removed him from the school without his coat and shoes, placed him in a police car, and drove him to the city jail.

Upon arrival at the Chester jail, Rusty was placed on the floor of a cell where he lay in a semiconscious state. The officers did not seek medical assistance for him, nor did they call his parents or attempt to advise him of his rights. Upon arrival for duty at the Chester jail, defendants Morgan and Dixon, also Chester police officers, observed Rusty in his cell and turned him over on his side, thus becoming aware of his condition. Throughout the night Rusty remained on the floor of the cell in a chilled state and without adequate clothing. Later that night, Officers Dixon and Morgan and Magistrate Lawrence, another defendant, poured water over Rusty in an unsuccessful attempt to revive him for arraignment. It is alleged that at this point Captain Welc of the Chester police department, another defendant, became aware of Rusty’s condition.

At approximately 10:00 A. M. the following morning, a rattle was heard in Rusty’s throat and the rescue squad was summoned to transport him to the Ches-ter Crozier Medical Center. He was pronounced dead on arrival. An autopsy revealed that the cause of death was the aspiration of his own vomit and that there was no alcohol in his blood.

As a result of her son’s death, appellant filed two suits in the Court of Common Pleas of Delaware County. The first suit, a wrongful death and survival action, was filed against the City of Chester, Magistrate Lawrence, Captain Welc, Sergeant Morgan and Officers Dixon, Platt, Friel and Brown. After the court sustained defendants’ preliminary objections on state immunity grounds, appellant filed an amended complaint. The court sustained preliminary objections to the amended complaint. On appeal the Pennsylvania Superior Court, holding that persons having custody by law of an incapacitated prisoner are not immune as employees of the state from liability for his death caused by their wanton conduct, reversed and remanded the case for trial. Ammlung v. City of Chester, 1973, 224 Pa.Super. 47, 302 A.2d 491.

A second state wrongful death and survival action was filed by appellant against the Mayor of Chester and the Chief of Police. After sustaining defendants’ preliminary objections on state immunity grounds and granting appellant leave to file an amended complaint, the court dismissed appellant’s action when she failed to amend. No appeal was taken from this dismissal. In both state suits, defendants’ liability was predicated on state law sounding in tort.

On May 2, 1972, appellant filed this federal civil rights action alleging the following violations of Rusty’s civil rights: illegal arrest, false imprisonment, illegal search and seizure, assault and battery, criminal negligence, cruel and unusual punishment, and due process violations arising from the failure to advise decedent of his constitutional rights. In addition, appellant asserted her state wrongful death and survival actions as pendent claims.

Defendants filed a motion to dismiss the complaint for failure to state a cause of action, citing immunity under the Civil Rights Act, the statute of limitations, and res judicata. The district court granted defendants’ motion to dismiss on the ground that the action was barred by the statute of limitations. Appellant appeals from this dismissal. We affirm.

Since there is no federal statute of limitations with respect to civil rights actions arising under 42 U.S.C.A. § 1983, the court below properly held that the Pennsylvania statute of limitations for analogous actions should be applied. O’Sullivan v. Felix, 1914, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980; Hileman v. Enable, 3 Cir. 1968, 391 F.2d 596; Henig v. Odorioso, 3 Cir. 1967, 385 F.2d 491, cert, denied, 390 U.S. 1016, 38 S.Ct. 1269, 20 L.Ed.2d 166, rehearing denied 1968, 391 U.S. 929, 88 S.Ct. 1814, 20 L. Ed.2d 671; Hughes v. Smith, D.N.J. 1967, 264 F.Supp. 767, aff’d 3 Cir. 1968, 389 F.2d 42. The limitation period to be applied is that which the state would apply if the action had been brought in a court of that state. Funk v. Cable, M. D.Pa.1966, 251 F.Supp. 598, 599. There being no Pennsylvania statute of limitations of general applicability to actions involving invasions of constitutional rights, the applicable statute of limitations must be determined from the nature of the conduct alleged. Conard v. Stitzel, E.D.Pa.1963, 225 F.Supp. 244, 247. Accordingly, the district court properly held that the relevant state statutes of limitations are as follows: Wrongful Death, limitation of one year after death, 12 P.S. § 1603; False Arrest, one-year limitation period, 12 P.S. § 51; and Trespass Action, two-year limitation period, 12 P.S. § 31. All of the incidents of which appellant complains occurred on January 23, 1970, and the present civil rights action was not filed until May 2, 1972, which is beyond the limits prescribed by both the one-year and two-year statutes.

Appellant contends, however, that in an action to recover damages for personal injury or death arising out of a conspiracy, Pennsylvania would apply a six-year statute of limitations, and therefore the six-year limitation period is applicable to this civil rights action. Appellees contend that the nature of the tortious conduct underlying the conspiracy determines which statute of limitations is applicable. We hold that appellant’s complaint does not plead conspiracy. Indeed, appellant raised her conspiracy argument for the first time on appeal. It is too late in the judicial process for appellant to attempt to recast either the facts or the underlying basis of her complaint. A civil conspiracy is a combination of two or more persons to do an unlawful or criminal act or to do a lawful act by unlawful means or for an unlawful purpose. Landau v. Western Pennsylvania National Bank, 1971, 445 Pa. 217, 224, 282 A.2d 335. Examining appellant’s complaint in light of this definition, it becomes readily apparent that there was no intelligible attempt to plead conspiracy. There are no allegations of a combination, agreement, or understanding among all or between any of the defendants. There are no factual allegations that the defendants plotted, planned, or conspired together to carry out the alleged chain of events which led to Rusty’s death. The complaint does not sound in conspiracy. Moreover, even if the plaintiff had pleaded conspiracy, this action would still be barred by the statute of limitations. The Pennsylvania statute of limitations pertaining to the substantive offense most closely related to that which the defendants were alleged to have conspired to commit would govern. Auld v. Mobay Chemical Co., W.D.Pa.1969, 300 F.Supp. 138; Gaito v. Strauss, W.D.Pa. 1966, 249 F.Supp. 923, aff’d 3 Cir. 1966, 368 F.2d 787; see Jones v. Bombeck, 3 Cir. 1967, 375 F.2d 737. Under Pennsylvania law, the statute of limitations with respect to a conspiracy begins to run from each overt act causing damage. Auld v. Mobay Chemical Co., supra. Since all the acts complained of by appellant occurred more than two years before the filing of this civil rights action, the relevant one-year and two-year state limitation provisions which apply to the substantive offenses would still bar this action even if conspiracy had been pleaded. We therefore hold that the district court applied the proper statutes of limitations.

There remains the issue of whether the pendency of the prior state actions tolled the statutes of limitations. State law governs the question whether an applicable state statute of limitations is tolled in an action brought under the federal Civil Rights Act, 42 U.S.C.A. § 1983. Duncan v. Nelson, 7 Cir. 1972, 466 F.2d 939; Jones v. Bombeck, 3 Cir. 1967, 375 F.2d 737; Hughes v. Smith, D. N.J.1967, 264 F.Supp. 767, aff’d, 3 Cir. 1967, 389 F.2d 42. Burnett v. New York Central Railroad Co., 1965, 380 U. S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941, relied on by appellant, is not authority for the proposition that the federal courts have a duty to fashion a federal tolling rule in civil rights actions arising under Section 1983. In Burnett, the Supreme Court held that a timely action under the Federal Employers’ Liability Act in a state court, even though venue was improper, tolled the statute of limitations contained in that federal act. Unlike Burnett, the instant case is one in which state limitation provisions govern. Furthermore, the primary underpinning of Burnett, that a federal tolling principle was necessary to implement a national policy of uniform time bar clearly expressed by Congress when it enacted the FELA limitations provision, is absent here.

The instant case is governed by Auto Workers v. Hoosier Cardinal Corp., 1966, 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192. In that case, in the absence of a federal limitations provision, the Supreme Court held that the applicable state statute of limitations was not tolled by prior state litigation involving the same dispute. The Court refused to fashion a federal tolling principle. In that case petitioner union had filed an action in state court to recover accumulated vacation pay allegedly due under the terms of a collective bargaining agreement. After dismissal of the complaint on the ground that it was insufficient under state law, the union thereafter brought an action in federal court under Section 301 of the Labor-Management Relations Act, 29 U.S.C.A. § 185. In affirming the district court’s dismissal of the action on the ground that it was barred by the applicable state limitation provisions, the Court stated that the state statute of limitations governed in the absence of any federal limitation period and held that there was no federal tolling principle that would save the action. We hold that Hoosier, and not Burnett, controls in the instant case.

Appellant also relies on Mizell v. North Broward Hospital District, 5 Cir. 1970, 427 F.2d 468, for the proposition that a federal rule on tolling the applicable state statute of limitations should be observed in cases arising under the Civil Rights Act. In Mizell, plaintiff, a surgeon, had his surgical privileges suspended by the defendant hospital district. After invoking prescribed state administrative remedies without success and appealing unsuccessfully to the state courts, plaintiff filed a civil rights action in federal court under 42 U.S.C.A. §§ 1981, 1983 and 1985. In reversing the district court which had dismissed the complaint as barred by the state statute of limitations, the Court of Appeals for the Fifth Circuit held that the applicable state limitation provision was tolled by plaintiff’s administrative efforts and state litigation. The court reasoned that it is within the underlying purpose of the Civil Rights Act to encourage utilization of state administrative and court procedures to vindicate alleged wrongs under state-created remedies before requiring plaintiff to bring his federal suit. Thus, the court held that a federal rule on tolling the state statute of limitations should be observed.

We believe Mizell should be limited to the peculiar facts of that case, involving as it did the utilization of state administrative procedures and the state courts to reinstate a privilege revoked by the state. Mizell is also distinguishable in that the plaintiff’s success in having his surgical privileges reinstated at the state level would have obviated the need for a federal civil rights action. In the instant case, plaintiff is entitled to recover in both the state wrongful death and survival actions and in the federal civil rights action, the state and federal causes of action having separate and distinct bases for recovery. The principle of federalism which underlies the court’s opinion in Mizell, 427 F.2d at 474, requires a different approach here where the utilization of state administrative and state court procedures could not completely vindicate the alleged wrongs, particularly the alleged violations of constitutional rights. Furthermore, given the absence of a federal limitation period in the Civil Rights Act, the court has no basis for fashioning federal tolling principles, and due regard for our system of federalism requires that state concepts of tolling be applied to state statutes of limitations. Therefore, to the extent Mizell stands for the general proposition that a federal rule on tolling state statutes of limitations should be formulated and applied in civil rights eases, we decline to follow that decision. Such a principle would be in conflict with Auto Workers v. Hoosier Cardinal Corp., 1966, 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192. Moreover, Mizell may no longer be sound law in the Fifth Circuit. The court in Blair v. Page Aircraft Maintenance, Inc., 5 Cir. 1972, 467 F.2d 815, refused to fashion a federal tolling rule and relied on the limitation period and tolling principles prescribed by the state.

We hold that state tolling principles govern the tolling of the applicable state statutes of limitations in federal civil rights actions arising under 42 U.S.C.A. § 1983.

The district court rejected appellant’s contention that the applicable state statutes of limitations were tolled by the commencement of the state 'suits, citing the absence of an applicable Pennsylvania tolling provision. We agree. The running of a Pennsylvania statute of limitations against a federal cause of action is not tolled under Pennsylvania concepts of tolling by the commencement of a similar suit in state court. Falsetti v. Local Union No. 2026, UMW, 3 Cir. 1966, 355 F.2d 658, aff’g W.D.Pa.1965, 249 F.Supp. 970; Falsetti v. Local Union No. 2026, UMW, W.D.Pa,1964, 34 F.R.D. 461; Di Sabatino v. Mertz, M.D.Pa.1949, 82 F.Supp. 248, 249; cf. Spees v. Boggs, 1903, 204 Pa. 504, 54 A. 346. Furthermore, the state and federal suits in the instant case are not similar causes of action. As noted before, the state wrongful death and survival actions and the federal civil rights action have independent and separate bases for recovery. Success or failure in one would not affect in any way the right of recovery in the other. Therefore, appellant’s state litigation cannot justify her delay in bringing this federal civil rights action.

Since the federal civil rights action is barred by the statute of limitations, the district court properly dismissed the pendent state claims.

“. . . It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff’s right. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. Needless decisions of state law should be avoided both as a matter of comity and to promote j'ustice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.
.” (Footnotes omitted.) United Mine Workers of America v. Gibbs, 1966, 383 U.S. 715, 726, 86 S. Ct. 1130,1139, 16 L.Ed.2d 218.

There is one collateral issue remaining. This involves the appeal of the American Civil Liberties Union from an order of the district court denying its petition to intervene as amicus curiae. The A.C.L.U. concedes that it is not a party in interest and that the proposed intervention was entirely within the sound discretion of the district court. However, it contends that the district court dismissed the complaint without exercising its discretion on the request to intervene as amicus curiae. Having dismissed the complaint, the district court then denied the intervention on the ground the action had been dismissed. Thus, appellant contends that the district court improperly failed to exercise any discretion on the merits of intervention.

The district court should have exercised its discretion on the merits of intervention before ruling on the motion to dismiss. Since this is essentially a private action rather than one involving public rights, and since the A.C.L.U.’s participation has been that of a vigorous adversary to the defendants in this case, it clearly would have been within the discretion of the district court to deny the proposed intervention. Cf. United States v. Loew’s Inc., S.D.N.Y.1957, 20 F.R.D. 423. We therefore affirm the denial of the request to intervene, but note that with respect to future petitions to intervene as amicus curiae, the district court should rule on the petitions and state the reasons for its ruling before adjudicating the substantive issues.

The order of the district court dismissing the action and the order denying the requested intervention will be affirmed.

      . The district court dismissed the action as to the City of Chester on the ground that the city is immune from suit under the Civil Rights Act; as to Mayor Narcrelli and Chief of Police Bail on the ground that the principle of respondeat superior is inapplicable in civil rights actions; and the cause of action based on 42 U.S.C.A. § 1985(3) on the ground that none of the requisite elements of a Section 1985(3) action had been pleaded. The court held that 42 U.S.C.A. § 1988 does not create an independent cause of action but rather authorizes, in civil rights cases, resort to remedies and procedures of the state and the common law where those of federal law are inadequate.
      Since we consider this action barred by the statute of limitations, we do not reach any of the issues involved in these dismissals on other grounds by the district court.

      . “Mizell is overruled sub silentio by Hailing to consider its application to the facts of the case. The purpose of the state limitational statute rather than the purpose of the federal substantive statute is given as to touchstone for the decision whether or not to toll the limitation period.” 467 F.2d at 821. (Tuttle, J., dissenting). Judge Tuttle wrote the court’s opinion in Mizell while Judge Coleman, who had written a vigorous dissent in Mizell, wrote the court’s opinion in Blair.

      . The A.O.L.U.’s “Petition For Leave To Intervene As Amicus Curiae” was solely a request to appear and be heard as an amicus; it was not a request to intervene as a party in interest under Rule 24 of the Federal Rules of Civil Procedure. Thus the “intervention” involved in this case and discussed herein pertains solely to the intervention as amicus curiae, i. e., leave to appear and be heard as an amicus. It does not involve in any way intervention under Rule 24.


author: BELL, Circuit Judge:

text:
    Tobe DUHON, Jr. and Charles L. Walker, Jr., Plaintiffs-Appellants, v. GOODYEAR TIRE & RUBBER COMPANY, BEAUMONT PLANT, Defendant-Appellee.
    No. 73-1296.
    United States Court of Appeals, Fifth Circuit.
    May 24, 1974.

      Elmo R. Willard, III, Beaumont, Tex., Gabrielle K. McDonald, Mark T. McDonald, Houston, Tex., Jack Greenberg, William L. Robinson, Deborah M. Green-berg, New York City, for plaintiffs-appellants.
    John B. Abercrombie, Richard R. Brann, Houston, Tex., for defendant-ap-pellee.
    Before TUTTLE, BELL and GOLDBERG, Circuit Judges.
   BELL, Circuit Judge:

Plaintiffs Duhon and Walker, employees of Goodyear at its Beaumont plant, brought a class action against Goodyear under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq., and 42 U.S.C.A. § 1981, claiming discrimination with respect to terms and conditions of employment.

After a full trial the district court entered, inter alia, findings of fact and conclusions of law summarized as follows:

(1) The Beaumont plant was originally staffed in December 1961. There were some 5,000 applications for a few hundred positions. In selecting employees for positions above laborer, Goodyear required previous experience, completion of high school or passage of the G.E.D. equivalency test, and satisfactory performance on both the Won-derlic Personnel Test and the Bennett Test of Mechanical Comprehension.

(2) Prior to late 1965, Goodyear hired as laborers at least 30 black employees who either did not meet the educational requirement or had not satisfactorily completed the Wonderlic and Bennett tests. Plaintiffs Duhon and Walker were in this group. The use of the education requirement and the Wonderlic and Bennett tests resulted in discrimination against black employees with respect to employment, promotion and seniority. The discriminatory effect on seniority occurred because the plant seniority system was separate for each division, including the division of laborers. Since seniority could not be transferred from one division to another, a person discriminatorily assigned and retained in the labor division lost seniority in other divisions to which he might otherwise have been assigned.

(3) The black employees originally hired without meeting all of the criteria for positions above laborer have over the years been transferred to higher positions.

(4) The education requirement and the mentioned tests were not used with the intent of discriminating against black employees. Rather they were used in good faith as an available tool for selecting employees with the best qualifications from among a large number of applicants. Goodyear voluntarily discontinued the use of the Wonderlie and Bennett tests at some point prior to trial.

By way of relief, Goodyear was enjoined from using non-validated tests in pre-employment or promotion situations. All other relief was denied.

The contentions of plaintiffs in the district court wash out on appeal to three principal assignments of error. The first is that the district court erred in failing to enjoin the use of the education requirement for hiring, job assignment and promotion purposes, in light of the express finding that the requirement disproportionately excluded black applicants from employment opportunities, and in light of the absence of any showing of relationship of the requirement to successful job performance. The second is that the district court erred in failing to order affirmative relief as to seniority and back pay in the face of the finding of discrimination arising from the use of the education requirement and the Wonderlie and Bennett tests. Thirdly, it is urged that the district court failed to apply the proper legal standard in finding that Goodyear had not discriminated against blacks in promotions to supervisory jobs in the warehouse and shipping departments and in assignment to craft jobs.

We vacate and remand for further consideration in the district court. In the fast moving world of Title VII law, important decisions of this court have supervened the decision of the district court. See particularly United States v. Georgia Power Company, 5 Cir., 1973, 474 F.2d 906; Johnson v. Goodyear Tire & Rubber Company, 5 Cir., 1974, 491 F. 2d 1364; Pettway v. American Cast Iron Pipe Co., 5 Cir., 1974, 494 F.2d 211.

These decisions make it clear that the district court should have enjoined the use of the education requirement. Moreover, they eliminate good faith as a defense in the use of non-validated tests and education requirements. They thus make it clear that relief in the form of back pay and seniority revision is due within the perimeters there established for any person in the class who has suffered a loss in compensation or seniority by reason of the discriminatory practices found by the district court.

As for the contentions in the pleadings concerning discrimination in the assignment to craft positions and in the selection of supervisory personnel, the issues were not defined by the district court. Further, while the pleadings are keyed to the effect of such practices on members of the class, the class has not been defined. We thus leave these matters for consideration on remand, where they in any case must be faced in the process of determining entitlement of class members to back pay and seniority adjustments. Should the evidence developed in these further proceedings establish the need for additional injunctive relief in this area, appropriate requests may be addressed to the district court.

The issue relating to counsel fees is controlled by United States v. Georgia Power Company, supra, where we said:

“The district court recognized that section 706 (k) [42 U.S.C. § 2000e-5(k)] and our decision in Clark v. American Marine Co., 320 F.Supp. 709 (E.D.La.1970), aff’d. 437 F.2d 959 (5th Cir. 1971) entitle the plaintiffs’ lawyers in a successful VII suit to recover reasonable attorneys’ fees.”

The question as to the amounts must be decided in the district court at the appropriate time. See Johnson v. Georgia Highway Express, Inc., 5 Cir., 1974, 488 F.2d 714.

Vacated and remanded with direction.

      . Given tlie limited relief afforded, the district court apparently found it unnecessary to define the class. The briefs suggest that the class may consist of as many as 32 black employees who were hired as laborers by Goodyear prior to September 13, 1965. After that date Goodyear hired blacks into non-laborer departments of the plant.


author: AINSWORTH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Rita Carpenter GREEN and Richard William Payne, Defendants-Appellants.
    No. 73-1210.
    United States Court of Appeals, Fifth Circuit.
    May 23, 1974.
    Rehearing and Rehearing En Banc Denied July 16, 1974.

      L. Lynn Elliott, Dallas, Tex. (Court-appointed), for defendants-appellants.
    Frank D. McCown, U. S. Atty., Fort Worth, Tex., Charles D. Cabaniss, Roger J. Allen, Asst. U. S. Attys., Dallas, Tex., for plaintiff-appellee.
    Before BROWN, Chief Judge, and AINSWORTH and MORGAN, Circuit Judges.
   AINSWORTH, Circuit Judge:

Appellants Richard William Payne and Rita Carpenter Green were each convicted on nine counts of violation of the federal mail fraud statute, 18 U.S.C. § 1341, for devising a scheme to defraud through the unlawful use of credit cards. They were each sentenced to five years’ imprisonment on each of the first two counts, these terms to run consecutively. Sentences on the remaining counts were suspended, and appellants were placed on probation for five years, to run consecutively to the sentences imposed. On appeal, they raise issues concerning the scope of the mail fraud statute and the sufficiency of the evidence, as well as other assorted contentions. We affirm in part and reverse in part.

The relevant portions of the mail fraud statute provide:

“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises . . . for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.” 18 U.S.C. § 1341.

The first six counts of the indictment under which appellants were convicted contained these common allegations: (1) on or about October 1, 1970, and continuing until mid-1972, appellants “devised and intended to devise a scheme and artifice to defraud and to obtain money and property by means of false and fraudulent pretenses, representations and promises”; (2) as part of such scheme and artifice, appellants “would apply for and obtain credit cards from businesses they intended to defraud, among such businesses would be Texas Bank and Trust Company of Dallas, BankAmericard Center, Diners Club, American Express Company, Mobil Oil Corporation, Gulf Oil Corporation, Texaco, Inc., Humble Oil and Refining Company and Shell Oil Company”; (3) “[i]n submitting credit card applications to such businesses, [appellants] would willfully make false and misleading representations in order to make it appear that they were worthy of credit and to induce the businesses to be defrauded to issue credit cards to them”; (4) the credit cards so obtained would be used by appellants “to purchase large quantities of merchandise and many services from business establishments . . . when in fact they intended not to pay for such purchases”; (5) “[u]p<m receipt of bills and statements of account for their purchases . [appellants] would willfully refuse and fail to pay . . .”; and (6) “for the purpose of executing such scheme and artifice and attempting to do so, did . . . knowingly cause to be placed in an authorized depository for mail matter, a business reply envelope to be sent and delivered by the Post Office Department according to the direction thereon . . . . ” Each of the first six counts alleges the mailing of a different business reply envelope, constituting an application for a credit card, to an issuing company.

Counts 7, 8 and 9 of the indictment each allege that appellants, for the purpose of executing their scheme to defraud, knowingly caused the mailing of an invoice subsequent to the receipt by them of goods and services.

Evidence presented at the trial showed that between October 1970 and May 1972, appellants, through the use of twenty-one credit cards and four different surnames, incurred total charges of $135,432, for which they did not pay. Here, we outline briefly the evidence pertaining directly to each count of the indictment.

Count 1 dealt with a BankAmericard application, which was identified at trial as having been received through the mail. This application, in the name of Richard W. Payne, with Rita K. Payne listed as his wife, requested that two cards be issued. Testimony revealed that a previously issued BankAmericard had been seized from appellant Green by a retail merchant prior to this application. The mailing of another BankAmericard application in the name of Richard Kenner, also requesting two cards, formed the basis of proof on count 5 of the indictment. This application listed Kenner’s wife’s name as Rita Kay. These two applications and a third were all rejected by BankAmericard because officials were able to identify all three applicants as Richard W. Payne, the holder of a BankAmericard account with a substantial unpaid balance. The Government’s handwriting expert identified appellant Payne as the writer of the applications named in counts 1 and 5.

Count 2 of the indictment dealt with a Gulf Oil Company credit card application that was sent through the mails. The Government’s witness testified that pursuant to this application, which listed the applicant’s spouse as Rita K., a card was issued in the name of Richard Ken-ner. The handwriting of Kenner on the application was identified as that of appellant Payne. An associate of appellants further testified that he saw appellants make certain charges on the card in February 1972.

Count 3 of the indictment charged mail fraud involving an application received through the mail for a Mobil Oil Company credit card. A card was issued in the name of Richard Kenner as a result of the application, and the handwriting on an invoice resulting from the use of the card was identified as that of appellant Payne. Count 6 also involved a Mobil credit card application, this time in the name of Richard W. Green. As a result of this application, which was received through the mail, a Mobil credit card was mailed to an address at which, it was shown, appellants resided at the time. See note 4 swpra. An additional Mobil credit card was applied for in the name of Richard V/. Traylor. At trial, it was stipulated that appellant Payne had, from time to time during the previous two years, submitted applications for credit cards in the name of Richard Traylor.

Count 4 concerned the sending through the mail of a Shell Oil Company credit card application, which requested issuance of two cards and which was completed in the name of Richard Ken-ner. His wife’s name was listed as Rita. The application, which resulted in the issuance of the Shell cards, bore handwriting identified as that of appellant Payne. This Shell card was used during December 1971 to purchase eighty-four new automobile tires at several different service stations. Government witnesses identified both appellants as the persons who had purchased the tires.

The remaining counts of the indictment, 7, 8 and 9, charged that, as part of the scheme to defraud, the mails had been used in the transmission of invoices between various service station dealers, who supplied automobile tires to appellants, and Humble Oil Company, which had extended credit on the basis of the credit cards issued to appellants. The testimony on these three counts showed that on certain occasions persons identified as appellants used a Humble credit card issued in the name of Richard Kenner to purchase the tires. The testimony further showed that the particular invoices for the sale of the tires were sent by the dealers, who were located in the Fort Worth, Texas, area, through the mail to the Humble Credit Card Center in Houston, Texas.

The purpose of the mail fraud statute, section 1341, is “to prevent the post office from being used to carry [schemes to defraud] into effect .” Durland v. United States, 161 U.S. 306, 314, 16 S.Ct. 508, 511, 40 L.Ed. 709 (1896); see Parr v. United States, 363 U.S. 370, 389, 80 S.Ct. 1171, 1182, 4 L.Ed.2d 1277 (1960). The two basic elements of a mail fraud offense are (1) the scheme to defraud, and (2) causing a mailing for the purpose of executing the scheme. Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 362, 98 L.Ed. 435 (1954); see United States v. Bruce, 5 Cir., 1973, 488 F.2d 1224, 1230; Bass v. United States, 5 Cir., 1969, 409 F.2d 179, cert, denied, 396 U.S. 863, 90 S.Ct. 138, 24 L.Ed.2d 117. While the mailing must, as the statute requires, be “for the purpose of executing the scheme,” Kann v. United States, 323 U.S. 88, 94, 65 S.Ct. 148, 151, 89 L. Ed. 88 (1944), “[i]t is not necessary that the scheme contemplate the use of the mails as an essential element. United States v. Young, 232 U.S. 155, 34 S.Ct. 303, 58 L.Ed. 548,” Pereira v. United States, supra, at 8, 74 S.Ct. at 362; see United States v. Maze, 414 U.S. 395, 400, 94 S.Ct. 645, 648, 38 L.Ed.2d 603 (1974). Indeed, it is sufficient if the mailing that is caused is “a part of the execution of the fraud,” Kann v. United States, supra, at 95, 65 S.Ct. at 151, or is “incident to an essential part of the scheme,” Pereira v. United States, supra, at 8, 74 S.Ct. at 363; see Parr v. United States, supra, at 390, 80 S.Ct. at 1183. One “causes” the mails to be used when one “does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended . United States v. Kenofskey, 243 U.S. 440, 37 S.Ct. 438, 61 L.Ed. 836.” Pereira v. United States, supra, at 8, 74 S.Ct. at 363; see United States v. Maze, supra, at 399, 94 S.Ct. at 648. The things caused to be mailed may be “innocent in themselves” without effecting immunization from the mail fraud statute, as long as the mailing is “ ‘a step in a plot.’ Badders v. United States, 240 U.S. [391, 394], 36 S.Ct. [367], 368 [60 L.Ed. 706].” Parr v. United States, supra, at 390, 80 S.Ct. at 1183. Intent, in other words, “may make an otherwise innocent act criminal, if it is a step in a plot.” Badders v. United States, 240 U.S. 391, 394, 36 S.Ct. 367, 368, 60 L.Ed. 706 (1916). But see note 13 infra.

Appellants’ major contention is that each of the nine counts of the indictment does not properly and legally charge a mail fraud offense under section 1341. They base their contention on two alternative propositions: first, that the Supreme Court’s recent decision in United States v. Maze, supra, precludes as a matter of law the prosecution of appellants under any of the nine counts of the indictment; and second, that 15 U.S.C. § 1644 of the Truth in Lending Act, is the exclusive vehicle for the prosecution of the fraudulent use of credit cards involving more than $5,000.

In United States v. Maze, supra, Maze was indicted on four counts of violation of section 1341 for knowingly causing the mails to be used in connection with a scheme to defraud through unlawfully obtaining possession of a credit card issued by a Louisville, Kentucky, bank and using the card to obtain goods and services from merchants — specifically, food and lodging at motels — in three states. The ■ indictment alleged that Maze knew that each merchant would cause sales slips for the purchases to be delivered by mail to the Louisville bank, which would, in turn, mail them to the true owner of the card for payment. No allegation was made as to the use of the mails prior to Maze’s receipt in each instance of goods and services on the four separate occasions on which the Government showed he had used the card. The indictment did, however, allege that the delay inherent in the mailings subsequent to each purchase would enable Maze to continue purchasing goods and services for an appreciable period of time.

The Supreme Court held section 1341 inapplicable to Maze’s conduct because the mailings were not “for the purpose of executing” the scheme involved. The mailings, the Court said, were directed toward the settling of accounts among the victims of Maze’s scheme, the motel proprietors, the Louisville bank, and the true owner of the card; and the success of his plan depended in no way on which of the victims ultimately bore the loss. United States v. Maze, supra, at 402, 94 S.Ct. at 649. The Government’s contention that the delay caused by use of the mails was essential to the continuation of the fraudulent credit card scheme was rejected, the Court pointing out that the distance, not the mail service, was responsible for the time lag in physical transmission of the invoices. Id. at 649-650.

The Maze decision, as the Government concedes, requires reversal of appellants’ convictions on counts 7, 8 and 9. Like the indictment in Maze, those counts charge use of the mails in the transmission of invoices between the retail merchants who supplied goods and services to appellants and the company that issued the card and extended the credit. Just as Maze’s “scheme reached fruition when he checked out of the motel . . . ” id. at 649, appellants’ plan to defraud reached an endpoint in each instance named in counts 7, 8 and 9 when appellants left the service stations after purchasing automobile tires with the Humble credit card. Appellants had received the automobile tires, and “[i]t was immaterial to them, or to any consummation of the scheme, how [the victims arranged their accounts].” Kann v. United States, 323 U.S. 88, 94, 65 S. Ct. 148, 151, 89 L.Ed. 88 (1944); see United States v. Owen, 5 Cir., 1974, 492 F.2d 1100.

Though Maze necessitates reversal of the last three counts, it does not invalidate the convictions under counts 1 through 6. Maze does not, as appellants contend, stand for the broad proposition that credit card frauds can never be among those frauds proscribed by section 1341. As the Court noted in Maze, “ft]he mail fraud statute, first enacted in 1872, 17 Stat. 323, c. 335, § 301, while obviously not directed at credit card frauds as such, is sufficiently general in its language to include them if the requirements of the statute are otherwise met.” United States v. Maze, supra, at n. 4, 94 S.Ct. at 648 n. 4. The mailings of applications to secure credit cards from issuers, as identified in counts 1 through 6, are enough to bring the schemes described in those counts within the requirements of the mail fraud statute. The uses of the mails to secure credit cards were “for the purpose of executing” the scheme to defraud through which appellants purchased goods and services without paying for them.

The significance of mailing the applications for the credit cards is amplified in this case by two factors. First, with respect to counts 2, 3, 4 and 6, the distance from appellants’ residence in Dallas to the offices issuing the credit cards dictated the use of the mails for delivering the applications to the companies. In three of the counts, the issuing offices of the companies from whom appellants sought credit cards were located outside of Texas; in Missouri (counts 3 and 6), and in Oklahoma (count 4). Another issuing office was located in a different city, Houston (count 2). Second, this is a case in which the mails served as “a means of concealment so that further frauds which are part of the scheme may be perpetrated.” Kann v. United States, 323 U.S. 88, 94-95, 65 S.Ct. 148, 151, 89 L.Ed. 88 (1944); see United States v. Maze, -U.S.-, -, 94 S.Ct. 645, 655, 38 L.Ed.2d 603 (1974) (White, J., dissenting), and cases cited therein. Appellants’ use of the mails to deliver credit card applications aided them in obtaining cards from the same issuer under different names. For example, with respect to the only local issuer from whom appellants sought cards dealt with in the counts not mentioned above, counts 1 and 5, appellant Payne applied for BankAmericards under two different names: in count 1 as Richard W. Payne and in count 5 as Richard Kenner. Had appellant Payne, using two different names, sought these cards in person, rather than by mail, presumably it would have been more easily detected that Payne and Kenner were one and the same applicant. Concealment was also an important factor with respect to counts 2, 3, 4 and 6 of the indictment, in which the distances involved had otherwise necessitated the use of the mails; for use of the mails, as opposed to in-person delivery, would hinder an issuer’s realization that it had already issued a credit card under a different name to the same applicant and that there were unpaid charges outstanding on each of the earlier issued cards.

In sum, since appellants’ fraudulent credit card scheme began with the securing of the cards by mail, the use of the mails “played a significant part in enabling [appellants] ... to acquire dominion over . . . ” more than $135,000 in goods and services for which they did not pay. United States v. Maze, supra, at-, 94 S.Ct. at 649; see Pereira v. United States, 347 U.S. 1, 5, 8-9, 74 S.Ct. 358, 361-363, 98 L.Ed. 435 (1954). These mailings were indispensable, for they were “incident to an essential part of the scheme,” Pereira v. United States, supra, at 8, 74 S.Ct. at 363; see Parr v. United States, 363 U.S. 370, 390, 80 S.Ct. 1171, 1183, 4 L.Ed.2d 1277 (1960) — obtaining the credit cards in the first instance.

Appellants also argue that the indictment is legally insufficient because section 1644 of the Truth in Lending Act is the exclusive vehicle for the prosecution of fraudulent credit card schemes such as theirs. Section 1644, a 1970 amendment to the Act, provides criminal penalties for the unauthorized use of a credit card in a transaction “affecting interstate commerce” and involving goods or services exceeding $5,000 in value. Appellants apparently suggest that in passing the amendment Congress intended to restrict the existing means of prosecuting fraudulent credit card schemes, or that Congress believed that the existing federal mail fraud statute did not cover credit card fraud. Presented with this same contention in Maze, the Supreme Court found it unnecessary in its disposition to determine section 1644’s significance. It did suggest, however, as we have mentioned that the language of the mail fraud statute is sufficient to encompass credit card frauds where the statute’s requirments are met.

The sparse legislative history of section 1644 provides no indication that the amendment was intended to be the sole vehicle for prosecution of credit card frauds. It appears to us that section 1644 was intended to ensure and expand the Government’s capacity to deal with fraudulent credit card schemes; and we can find no intimation that Congress intended to restrict the use of existing prosecutorial tools or that it believed that a new tool was being created. It is significant in this respect that although the two statutes overlap, they do not proscribe identical conduct. Section 1644 specifically prohibits the unauthorized use of a credit card itself and is limited to frauds involving the use of such cards. Section 1341, however, does not punish any particular type of fraudulent scheme; rather, it punishes the use of the mails in furtherance of a wide range of fraudulent schemes. The former statute, moreover, embraces only transactions “affecting interstate or foreign commerce,” while the latter is restricted to transactions in which the mails are used. Not all uses of the mails are in interstate or foreign commerce, and not all transactions affecting such commerce involve use of the mails.

It is true, of course, that when the mails are used in the execution of a scheme to defraud that involves the unauthorized use of a credit card to the extent of $5,000, such conduct may violate both section 1341 and section 1644. But it is well established that a single act may violate more than one law. United States v. Beacon Brass Co., 344 U.S. 43, 45, 73 S.Ct. 77, 79, 97 L.Ed. 61 (1952). We cannot conclude that because of the existence of section 1644 the prosecution of credit card frauds under the mail fraud statute is forbidden. Where statutes overlap without conflicting, as in the situation presented here, the earlier statute is not necessarily repealed by the more specific or more recent law. Edwards v. United States, 312 U.S. 473, 483-484, 61 S.Ct. 669, 675, 85 L.Ed. 957 (1941); United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 188, 84 L.Ed. 181 (1939). Thus, though the two statutes to some extent overlap, the mail fraud statute, as it applies to credit card schemes that make use of the mails, was not impliedly repealed by section 1644. Both should be given their full effect, for such repeals by implication are not favored. See United States v. Borden Co., supra, at 198-199, 60 S.Ct. at 188.

Edwards v. United States, supra, presented a question analogous to that before us. In that case, the several counts of the indictment charged the defendant with violating both the federal mail fraud statute and the anti-fraud provisions of the Securities Act of 1933 in the sale of fraudulent interests in oil and gas leases. The Supreme Court unanimously held valid the counts under both statutes. With respect to the mail fraud counts, the Court explained:

Petitioner’s objection to these counts is that a later act, the Securities Act of 1933, makes it unlawful to use the mails to defraud by the sale of securities. His argument is that in so far as the later act prohibits the fraudulent sale of securities by mail, it repeals by implication the provisions of the old mail fraud statute in so far as they cover securities. We see no basis for a conclusion that Congress intended to repeal the earlier statute. The two can exist and be useful, side by side.

312 U.S. at 483-484, 61 S.Ct. at 675. Similarly, since section 1644 does not purport to be the exclusive vehicle for the federal prosecution of fraudulent credit card schemes, the existence of that section presents no bar to the prosecution of appellants in this case pursuant to section 1341.

Appellants’ second contention is that the evidence is not sufficient to support each of their convictions for the violations of section 1341 charged in the remaining six counts of the indictment in this case. Our role in examining this contention is not to weigh the evidence presented in the trial court or to judge the credibility of witnesses. Rather, viewing the evidence in the light most favorable to the Government, we are to determine whether the jury’s verdict is supported by substantial evidence. If it is, it must be sustained. E. g., Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Bass, 5 Cir., 1974, 490 F.2d 846, 855; United States v. Blanchette, 5 Cir., 1972, 453 F.2d 859, 860, cert, denied, 406 U.S. 959, 92 S.Ct. 2067, 32 L.Ed.2d 346.

Having carefully reviewed the record in this case, we think it clear that there was more than ample evidence to support appellant Payne’s conviction. See our discussion, pages 822-823 supra. The challenge to the sufficiency of the evidence below is pressed more strenuously, however, with respect to appellant Green. Examination of the evidence presented at trial, though, leaves us with no doubt as to its sufficiency to support her conviction by the jury also as a principal in the credit card scheme. See United States v. Bruce, 5 Cir., 1973, 488 F.2d 1224, 1229. We outline briefly here her specific role in the overall scheme.

The record documents that appellant Rita Carpenter Green amassed fraudulent charges of at least $35,738 on 442 separate invoices, using all types of credit cards involved in the scheme. Thus, she personally accounted for more than 26 per cent of the more than $135,000 in fraudulent charges made by appellants in the course of. their scheme. These charges were made throughout the two-year period for which the fraudulent charges were shown. In addition, the numerous credit card applications submitted by appellants to secure the cards usually showed Rita, Rita K., or Rita Kay, as the wife of appellant Payne, and in most instances two cards were sought. The record further demonstrates that the trial court fully and properly instructed the jury concerning the legal concepts of principals as well as of aiders and abettors. Looking, therefore, to both the evidence presented and the court’s instructions, we can discern no error in the jury’s finding that appellant Green was also guilty as a principal of the offenses charged against her in the indictment in this case.

Three other contentions are raised by appellants, but only one has been briefed for our consideration. Appellants have briefed their contention that the trial court should have granted appellant Green’s motion for severance. It is argued that appellant Green was prejudiced by the joinder of her trial with that of appellant Payne because the transactions described by the Government’s witnesses had nothing to do with appellant Green.

Rule 14 of the Federal Rules of Criminal Procedure provides that separate trials may be granted if it can be shown that prejudice would result from joinder of the defendants in a single trial. Since the existence of prejudice depends largely on the facts and circumstances of each case, e. g., United States v. Bryant, 5 Cir., 1974, 490 F.2d 1372, 1379; United States v. Pacheco, 5 Cir., 1974, 489 F.2d 554, 560-561, the grant or denial of a motion for severance is a matter addressed to the discretion of the trial court, Tillman v. United States, 5 Cir., 1969, 406 F.2d 930, 934, vacated as to one defendant on other grounds, cert, denied as to other defendants, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742; Smith v. United States, 5 Cir., 1967, 385 F.2d 34, 37-38. Demonstrating prejudice is a difficult burden, and the trial court’s decision will rarely be disturbed on appeal unless abuse of discretion is affirmatively shown. E. g., Tillman v. United States, supra, at 934-935; United States v. Blanchette, supra; United States v. Bullock, 5 Cir., 1971, 451 F.2d 884, 889; Smith v. United States, supra. “The defendant must show something more than the fact that “a separate trial might offer him a better chance of acquittal.’ ” E. g., Tillman v. United States, supra, at 935, and eases cited therein. Having examined appellants’ allegations of prejudice in light of the record before us, we find that they present nothing more than a claim that separate trials might have allowed appellant Green a slightly greater opportunity for acquittal. The evidence presented at the trial showed their joint role in the fraudulent scheme, and it is not a valid assertion that a lack of participation on her part resulted in her being prejudiced by the proof of appellant Payne’s role. The district court’s denial of appellant Green’s motion for severance was not an abuse of discretion. See, e. g., United States v. Pacheco, supra.

The first of the two remaining issues raised by appellants is whether the instructions to the jury were sufficient to ensure a fair trial for appellant Green. Neither appellant, however, made a timely objection to the charge given to the jury, as required by Rule 30 of the Federal Rules of Criminal Procedure; nor is any error specified on appeal. This being the case, we need not comment upon the instructions given other than to say that viewing the jury charge as a whole, as we must, e. g., United States v. Wilkinson, 5 Cir., 1972, 460 F.2d 725, 732 and cases cited therein, it was full, adequate, and without plain error. See, e. g., Singer v. United States, 380 U.S. 24, 38, 85 S.Ct. 783, 791, 13 L.Ed.2d 630 (1965); United States v. Harris, 5 Cir., 1972, 458 F.2d 670, 678, cert, denied, 409 U.S. 888, 93 S.Ct. 195, 34 L.Ed.2d 145 (1972); Fowler v. United States, 5 Cir., 1957, 242 F. 2d 860, 863.

The final issue raised by appellants is “[wjhether it is lawful for the Government to prosecute [appellants] in this case where the evidence, in the most favorable light to the Government, shows and emphasizes the extent to which the issuers of credit cards allow themselves to be victimized even when the credit cards are used for the very purposes intended; and, moreover, originally obtained in the precise manner in which the issuers prescribe.” Apparently, appellants are contending that since the procedures for credit card issuance and use were such that the card issuers left themselves easily susceptible — or, at least, appellants argue they did — to the fraudulent scheme perpetrated here, the Government is estopped from prosecuting appellants for committing fraud. Appellants have offered us no basis for such an unusual contention, and we can find none.

We affirm appellant Payne’s and appellant Green’s convictions and sentences on counts 1 through 6 of the indictment; the convictions and sentences on counts 7 through 9 are annulled and set aside.

Affirmed in part and reversed in part.

      . The sentences of appellant Payne are to run consecutively to a three-year sentence he is presently serving for another conviction.

      . The full text of the section reads :
      § 1341. Frauds and swindles
      Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, rej)resentations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.

      . In all, appellants applied for twenty-seven cards. Five of these applications were refused, and one credit card was not used. See note 4 infra.

      . The criminal activity for which appellants were convicted occurred when they used the mails to submit the applications in attempting to secure credit cards for use in their fraudulent scheme to obtain goods and services without intending to pay for them. There is, therefore, no legal significance in this case to the fact that no credit cards were issued to appellants after they submitted the applications treated in counts 1 and 5 of the indictment or to the fact that the card received on the basis of the application named in count 6 was not used.

      . In Maze, the Supreme Court noted four prior decisions of this Court that took a view contrary to the Sixth Circuit’s Maze decision, which the Suxjreme Court affirmed: Adams v. United States, 5 Cir., 1963, 312 F.2d 137; Kloian v. United States, 5 Cir., 1965, 349 F.2d 291, cert, denied, 384 U.S. 913, 86 S.Ct. 1349, 16 L.Ed.2d 365 (1966) ; United States v. Reynolds, 5 Cir., 1970, 421 F.2d 178; United States v. Thomas, 5 Cir., 1970, 429 F.2d 407. Eor cases decided in this circuit since Maze, see, e. g., United States v. Owen, 5 Cir., 1974, 492 F.2d 1100; United States v. Gardner, 5 Cir., 1974, 490 F.2d 840.

      . See also United States v. Kelem, 9 Cir., 1969, 416 F.2d 346, 350, cert, denied, 397 U.S. 952, 90 S.Ct. 977, 25 L.Ed.2d 134 (1970) :
      [T]he propriety of convictions . . . under section 1341, does not turn upon a mechanical determination of when the mailings occurred; rather, the determination depends upon a careful examination of the evidence in each case to determine the contribution made by mailings to the scheme’s success.

      . We think that the Supreme Court’s comments in United States v. Sampson, 371 U.S. 75, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962), concerning the effects of two of the Court’s major opinions on the mail fraud statute are equally applicable to the holding in Mase:
      We are unable to find anything in either the Kann or Parr case which suggests that the Court was laying down an automatic rule that a deliberate, planned use of the mails after the victims’ money had been obtained can never be “for the purpose of executing” the defendants’ scheme. Rather the Court found only that under the facts in those cases the schemes had been fully executed before the mails were used.
      317 U.S. at 80, 83 S.Ct. at 176.

      . The section provides in full:
      § 1644. Fraudulent use of credit card Whoever, in a transaction affecting interstate or foreign commerce, uses any counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained credit card to obtain goods or services, or both, having a retail value aggregating $5,000 or more, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

      . In this case, for example, the acts involved in counts 1, 2 and 5, though they involve mailings, do not necessarily affect interstate or foreign commerce.

      . Formerly, 18 U.S.C. § 338 (1940).

      . In fact, the two have existed and been useful side by side:
      Prior to the passage of the [Securities Act of 1933], most criminal prosecutions for fraudulent securities transactions were brought under the Federal Mail Fraud Statute. Even after the enactment of the various federal securities laws, indictments have not been limited to securities law crimes. Thus defendants are often additionally charged with mail fraud ....
      Mathews, Criminal Prosecutions Under the Federal Securities Laws and Related Statutes : The Nature and Development of SEC Criminal Cases, 39 Geo.Wash.L.Rev. 901, 911 (1971) (footnotes omitted).
      For examples of cases involving criminal prosecutions for securities fraud that have charged federal mail fraud in addition to securities laws crimes, see cases collected id. at 911-912 n. 68, as well as United States v. Bruce, 5 Cir., 1973, 488 F.2d 1224.

      . Having determined the convictions on counts 7, 8 and 9 to be invalid, we treat here only counts 1 through 6.

      . Though it is not necessary that the things caused to be mailed be false or fraudulent in themselves, see page 824 supra, we note that the credit card applications mailed by appellants consistently contained several types of misrepresentations, including those as to occupation, income, length of employment, home address, and surname.

      . That the applications were submitted in the name or alias of appellant Payne, in accordance with general business practice, does not indicate that only he was involved in the fraudulent scheme.

      . Rule 14 provides:
      Relief from Prejudicial Joinder If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.

      . That Rule provides in pertinent part: “No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.”


author: DYER, Circuit Judge:

text:
    Kenneth R. DAVIS, Plaintiff-Appellant, v. S. Ernest VANDIVER, William H. Kelly and Paul E. Innecken, Defendants-Appellees.
    No. 73-1481.
    United States Court of Appeals, Fifth Circuit.
    May 28, 1974.
    William R. King, Theodore G. Frankel, Atlanta, Ga., for plaintiff-appellant.

      William Kanter, Walter H. Fleischer, Appellate Section, Civil Div., Dept, of Justice, Washington, D. C., John W. Stokes, Jr., U. S. Atty., Beverly Bates, Asst. U. S. Atty., Atlanta, Ga., Eloise E. Davies, Dept, of Justice, Appellate Section, Washington, D. C., for defendants-appellees.
    Before BELL, DYER and CLARK, Circuit Judges.
   DYER, Circuit Judge:

Davis appeals from the district court’s judgment of dismissal based upon a determination that no due process violations infected the proceedings by which he was discharged in 1971 from his position as an Air National Guard technician. We have awaited the Supreme Court’s decision in Arnett v. Kennedy, 1974, -U.S.-, 94 S.Ct. 1633, 40 L.Ed.2d 15 before addressing Davis’ contentions, and with the guidance of that decision, we affirm the judgment below.

A professional aviator, Davis had served as a flight training instructor for the Air National Guard technician detachment in Savannah, Georgia for ten years prior to the events leading to his discharge. During August, 1971, while operating a Government vehicle off base without authority and for his personal convenience, Davis was involved in a hit-and-run accident resulting in property damage. Following an investigation by Savannah police which brought local authorities onto the National Guard base, Davis, after some delay, admitted responsibility for the accident. Two weeks later, the detachment commander formally advised Davis that he proposed to remove Davis from employment no earlier than thirty days from the notice date. Consistent with applicable National Guard regulations, this notification contained a statement of the charges and reasons for removal, indicated that Davis enjoyed a right to reply orally or in writing to the charges, and stated that after receipt of any response from Davis a written decision would be forthcoming. Davis availed himself of his right to reply, albeit under protest that the State Adjutant General, not the unit detachment commander, was the only individual authorized to act upon termination matters. Despite Davis’ attempted explanation of his behavior, he was discharged from his post in September, 1971, pursuant to a notice signed by the detachment’s personnel officer acting on behalf of the Adjutant General. He was subsequently afforded a full evi-dentiary hearing after his termination, but the dismissal was upheld as proper by the hearing examiner.

Before addressing Davis’ due process contentions, we note preliminarily his two subsidiary arguments that controlling Air National Guard regulations were either substantively inadequate or unfaithfully adhered to in effecting his termination. Davis argues first that the regulations failed to provide ample notice of proscribed conduct, and secondly, that only the Adjutant General was empowered to act on Davis’ discharge in view of statutory language vesting employment decision-making power in that person. 32 U.S.C.A. § 709(e)(3), (4). As to the first argument, Davis was adequately apprised of the fact that his misconduct off base could result in dismissal from employment by generally applicable Air National Guard Regulations, including § 7-37 (Table, Offense 13), which provides that misconduct by technicians off duty, if sufficiently serious, may be punished by dismissal even for a first offense. Davis impliedly demands a highly detailed catalog of offenses clearly setting forth each imaginable species of malfeasance which could result in substantial discipline. The short answer to this contention was well expressed by the District of Columbia Circuit: “[I]t is not feasible or necessary for the Government to spell out in detail all that conduct which will result in retaliation. The most conscientious of codes that define prohibited conduct of employees includes ‘catchall’ clauses. . . . ” Meehan v. Maey, 1968, 129 U.S.App.D.C. 217, 392 F.2d 822, 835, modified 138 U.S.App.D.C. 38, 425 F.2d 469, quoted in Arnett v. Kennedy, supra, at 1648.

Davis’ second contention with respect to the official statutorily empowered to act in employment matters is without foundation. The principal purpose of the National Guard Technician Act of 1968, 32 U.S.C.A. § 709, was to create a bifurcated nature of technician employment — to confer federal status on civilian technicians while granting administrative authority to State officials, headed in each State by the Adjutant General. 1968 U.S.Code Cong. & Admin.News, pp. 3319-3321. Nothing in the Act or legislative history pertaining to the vesting of managerial decisions in State officials supports Davis’ extraordinary contention that all employment decisions must be made personally by the State’s Adjutant General, thereby precluding delegation of such authority.

Davis’ principal attack on his dismissal, however, is mustered against what he perceives as procedural infirmities vi-olative of constitutional requisites. Essentially, Davis argues that in view of the serious deprivation visited on him by official action, a formal pre-termination hearing is constitutionally demanded by the Due Process Clause. Secondly, Davis suggests that regardless of the constitutional adequacy of procedures afforded him, no impartial determination was made in meting out the sanction of dismissal. The answer to both arguments is contained in Arnett.

Squarely presenting the issue of due process requirements surrounding the discharge of a nonprobationary federal employee pursuant to the provisions of the Lloyd-LaFollette Act, 5 U.S.C.A. § 7501, the Arnett case elicited five separate opinions from the Court. Nevertheless, our hand is clearly guided by that case, inasmuch as six Justices expressly concurred in the proposition that a post-termination hearing was sufficient to protect those interests meriting due process protection, whether those interests were in the nature of “property” or “liberty.” The plurality opinion in Arnett indicated that by incorporating express procedures into the statute which also conferred rights on federal employees, Congress delineated the full extent of the “property interest” enjoyed by the employee in continued retention of his post. The Lloyd-La-Follette Act was thus viewed as focused “strongly on the procedural mechanism for enforcing the substantive right which was simultaneously conferred. ...” Id. at 1643.

It cannot be said that the legislative forcus of the National Guard Technician Act (NGTA) is as clearly centered as was Lloyd-LaFollette on procedural mechanisms for vindicating substantive rights, although Congress did prescribe certain removal procedures in the NGTA. 32 U.S.C.A. § 709(e)(5), (6). We do not view this distinction as critical, however, for three reasons. First, unlike Lloyd-LaFollette, which expressly states that an employee may not be removed unless sufficient cause warrants termination, the s NGTA does not expressly confer any such right of job retention, an understandable difference in view of the military-related duties of National Guard technicians. Second, Congress did provide for certain procedures in the NGTA in connection with removals for cause, and thus the plurality’s reasoning could, without undue strain, also apply to that statute. Thirdly, two concurring Justices disagreed with the plurality’s limited basis of statutory construction, assumed the existence of a cognizable property interest on the part of the discharged employee, and viewed existing pre-termination procedures as constitutionally adequate.

Similar procedures to those used in Arnett were employed with respect to Davis’ termination. Davis was provided with notice of the charge and granted a reasonable opportunity to respond prior to his discharge. Subsequent to his dismissal he was afforded a full-scale evidentiary hearing presided over by a hearing examiner. Arnett demands no more.

Davis’ argument regarding biased decision-makers is equally without force. Five Justices in Arnett perceived no constitutional infirmity in the employee’s being dismissed by the very person who initially brought the charges of misconduct. In the case sub judice, Davis was dismissed not by the charging party, the detachment commander, but by the detachment personnel officer who acted with the approval of the State Adjutant General. We can only conclude that in this respect the Air National Guard provided more than the Constitution required.

Finding Davis’ other contentions unmeritorious, we affirm.

Affirmed.

      . In the notice of proposed removal, the detachment commander also informed him of the following prerogatives: (1) if Davis chose to reply orally, he could be accompanied by a representative of his choice; (2) he could submit affidavits to support his answer ; (3) if he did not understand the reasons for the proposed removal he could contact the detachment personnel officer for further explanation; (4) he would be allowed eight hours of official time to review the material and prepare an answer; (5) material relied on by the charging party would be available to Davis for his examination.

      . Davis mounts a hydra-like attack on the lawfulness per se of his dismissal, apart from constitutional considerations. Suffice it to say that, despite the severity of the sanction imposed, we cannot view the authorities’ response to Davis’ admitted misconduct as so harsh as to evidence arbitrary or capricious action. We also agree that Davis’ failure to report an off-base collision for which he was responsible was substantial enough to constitute “cause” for dismissal within the meaning of 32 U.S.C.A. § 709(e)(3). Finally, we are unpersuaded by his contentions regarding the hearing examiner’s exclusion of certain evidence of bias, particularly since the Adjutant General subsequently offered to re-open the hearing to receive any testimony which Davis deemed helpful.