author: MOORE, Senior Circuit Judge.

text:
    Lyle S. WOODCOCK, Petitioner-Appellant, v. R. W. AMLARAL, Respondent-Appellee.
    No. 74-1140.
    United States Court of Appeals, First Circuit.
    Argued Sept. 11, 1974.
    Decided Dec. 26, 1974.

      Daniel F. Featherston, Jr., Boston, Mass., with whom Featherston, Homans, Klubock & Griffin, Boston, Mass., was on brief, for appellant.
    Michael C. Donahue, Deputy Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Div., and David A. Mills, Asst. Atty. Gen., Chief, Crim. Appellate Section, were on brief, for appellee.
    Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and MOORE, Senior Circuit Judge.

       As amended March 4, 1975, after consideration of appellant’s petition for rehearing.

       Of the Second Circuit sitting by designation.

      . Although we are willing to assume that the appellant would have gained some benefit from this evidence, we note that Woodcock’s refusal to participate in the Hanley program is not necessarily inconsistent with his participation in the Rate Board program. Woodcock had shown considerable reluctance to go ahead with the latter scheme and had agreed only after setting a maximum dollar figure. Thus, it is not unusual that he refused when later asked to contribute more money.

   MOORE, Senior Circuit Judge.

This is an appeal from a decision of the United States District Court for the District of Massachusetts dismissing appellant’s petition for a writ of habeas corpus. The district court’s memorandum and order (reported at 373 F.Supp. 644) was based on an agreed record and the parties’ briefs and oral arguments.

The appellant Lyle S. Woodcock was at one time an executive vice president and director of Liberty Loan Corporation, a company in the business of making small loans. In 1964 he was indicted by a Massachusetts special grand jury along with numerous other employees of small loan companies, the companies themselves, and some state officials. The indictment' charged conspiracy and bribery of the state officials and resulted in two trials (commonly known as the “small loans cases”). Only the first trial — the so-called “first small loans trial” —is directly at issue in this appeal, although it will be necessary for us to refer occasionally to the “second small loans trial” and the matters at issue therein.

The first small loans trial involved fifteen defendants and a total of forty-eight indictments, three of which named Woodcock. The trial lasted five months and generated a voluminous record, and Woodcock, along with most of his codefendants, was found guilty of conspiracy and bribery.

Appeals from the convictions were deferred until after the second small loans trial, which concerned an unrelated bribery scheme and in which Woodcock received a directed verdict of acquittal. Eventually appeals from the two trials were consolidated and heard by the Supreme Judicial Court of Massachusetts, which affirmed the convictions in one of the longest opinions in that court’s history. Commonwealth v. Beneficial Finance Company, 1971 Mass.Adv. Sheets, 1367, 275 N.E.2d 33 (1971). The Supreme Court denied certiorari, 407 U.S. 914, 92 S.Ct. 2433, 32 L.Ed.2d 689, and Woodcock’s petition for a writ of habeas corpus followed.

The object of the conspiracy and bribery involved in the first trial was to insure that the Massachusetts Rate Board, which regulated the interest rates on small loans, did not lower the permissible rate. One Martin J. Hanley was the Deputy Commissioner of Banks in Massachusetts and the supervisor of the small loans industry. It was his job to present information pertinent to interest rates to the Rate Board at hearings beginning in November 1962. The agreement to bribe Hanley and through him at least some of the members of the Rate Board was made at a meeting held in October 1962, at the Commodore Hotel in New York City. Woodcock was present along with officials of other small loan companies, including one William Heath, a public relations executive with American Investment Co. Heath was to become the prosecution’s star witness at trial, and without his testimony the government concedes that Woodcock could not have been convicted.

At trial, Heath recounted the proceedings at the Commodore Hotel meeting. First there was a discussion concerning whether to have a “program” to bribe the Rate Board and then the size of the sum necessary to effectuate the bribe was considered. One participant, Frank Glynn, estimated that between $50,000 and $75,000 would be required. Woodcock responded that this figure was ridiculously high and that his company would have nothing to do with a program of that size. Heath then opined that $25,000 would probably be adequate, and, according to Heath, Woodcock replied:

“At the $25,000 figure perhaps we have no choice, but I want it clearly understood that the figure is $25,000 and not one penny more, and no one is to come back at a later date and request that the figure be raised under any conditions.”

The parties have stipulated that this testimony was crucial to Woodcock’s conviction.

Woodcock urges reversal of the district court’s dismissal of his petition on several grounds. All of his arguments have been considered by the trial court (either in motions made at various stages during the trial or in the defendants’ subsequent motions for a new trial), the Supreme Judicial Court of Massachusetts, and the district court. His contentions will be discussed in the order in which he raises them in his brief.

I. The Brady Issues

The first group of arguments raised by the appellant relates to the prosecutor’s duty to disclose evidence materially favorable to the accused. See Brady v. Maryland, 373 U.S. 83, 86, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Woodcock cites three instances in which the favorable evidence was not disclosed and one in which the evidence, though disclosed, was allegedly the subject of a prosecutorial misrepresentation which induced Woodcock’s attorney to refrain from bringing up the evidence at trial. To prevail under Brady, of course, the appellant must show not only that favorable evidence was not disclosed but also that the evidence was material to the issues of guilt or punishment. E. g., Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

During the first small loans trial, Woodcock’s attorney was given portions of Heath’s grand jury testimony which showed that at the same Commodore Hotel meeting at which Woodcock allegedly entered into an agreement to bribe the Rate Board, he had also angrily refused to pay Hanley on another matter, the so-called Hanley program, which was the subject of the second small loans trial. However, the prosecutor, Mr. Travers, warned Woodcock’s trial counsel that to cross-examine Heath on this refusal might well introduce criminal matters which, although not related to the allegations at issue in the first small loans trial, would nonetheless be prejudicial to Woodcock. Evidence about Woodcock’s refusal to participate in the Hanley program would presumably have undercut the testimony that he agreed to bribe the Rate Board. For the jury to convict him of participating in the Rate Board conspiracy, Woodcock argues, it would have had to believe that he agreed to a bribe at one moment and then shortly thereafter, at the same meeting, emphatically disapproved of another bribe. But having been deterred by the prosecutor’s warning and thinking that questioning would bring out incriminating evidence pertaining to the Hanley program (for which the appellant was then under indictment), counsel did not cross-examine Heath about Woodcock’s angry refusal to pay. Later, at the second small loans trial, when Heath did in fact finally testify concerning Woodcock’s refusal to participate in the Hanley program, no other evidence in any way incriminating to Woodcock was disclosed, and he received a directed verdict of acquittal. Naturally, this development caused Woodcock’s lawyer to wish that he had examined Heath about the refusal at the first trial and to think that he had been misled by the prosecutor’s warning.

The appellant contends that the prosecutor’s warning was not made in good faith, but rather was a device to prevent injection of evidence about the Hanley program into the first trial. Such testimony, Woodcock argues, would inevitably have brought to light the involvement of his codefendants in this wholly separate conspiracy, and the resulting prejudicial effect would have prompted them to move for a mistrial. This, of course, the prosecutor wanted to avoid. Were we to accept the contention that the prosecution deliberately undercut the value of a disclosure made pursuant to Brady with a false warning, there would be little doubt that a new trial would be required. If nondisclosure of Brady material is occasioned by prosecutorial misconduct, prophylactic considerations assume overriding importance. Accordingly, as decisions in other circuits have recognized, a much-reduced showing of materiality is required for a defendant so victimized to obtain a new trial. We have no doubt that this evidence would clear that small hurdle. In this case, however, there is every indication that the warning was made in good faith. At the hearing on the motions for a new trial made by the various defendants, the prosecutor, Mr. Travers, testified extensively. He explained that based on his knowledge of the evidence, he had thought when he gave the warning (and still thought at the time of the hearing) that an inquiry into Woodcock’s refusal to contribute to the Hanley program would bring out evidence of still another conspiracy involving bribery of public officials in Massachusetts, the so-called legislative program. After hearing this testimony, the trial court explicitly ruled that the prosecutor had made “a perfectly correct, proper, and truthful statement under all of the circumstances.” There is ample evidence to support this ruling, and we are not willing to dispute it at this stage.

It is unfortunate that defense counsel may have changed his trial tactics based on a warning which ultimately proved to be unwarranted. But there was full opportunity for counsel to explore the meaning of the warning more fully, and absent deliberate prosecutorial misconduct we see no basis for reversal on this ground.

The appellant’s remaining Brady contentions are directed at three alleged failures of the prosecution to make constitutionally mandated disclosures of exculpatory evidence. Woodcock first argues that expense vouchers submitted by Heath to his employer were wrongfully withheld since they would have provided a basis for impeaching Heath’s credibility. The circumstances were these. During the first trial Heath testified that “within a week or one or two days” before the crucial meeting at the Commodore Hotel, he had met with James Pratt and Francis Glynn, public relations men for other loan companies, at Purcell’s Restaurant in Boston, where the Rate Board program was first discussed. In January, 1964, the prosecution received from the Massachusetts Crime Commission a massive collection of documents relating to the Commission’s investigation of the small-loans industry. Among those documents were Heath’s expense vouchers covering a four-year period which showed that during the two weeks preceding October 17, 1962, the date of the Commodore Hotel meeting, Heath had recorded lunches with others than Glynn and Pratt on every working day during which he was in Boston. Woodcock contends that, possessed of these vouchers, he would have been able to to show that Heath either lied about when the meeting took place, lied about its having taken place at all, or submitted falsified expense vouchers, thus generally impeaching the credibility of a witness whose testimony was admittedly crucial to his conviction.

Appellant labels the failure to make the vouchers available to the defense before the first trial “deliberate”. The Commonwealth concedes that it was “conscious”. We have scrutinized the testimony presented at the hearing on the new trial motions of appellant and several of his codefendants. The prosecutor testified that immediately prior to the first trial he and an assistant undertook on a crash basis to review all of Heath’s grand jury testimony and related documents in order to furnish to the defendants “anything that reflected in any way on the testimony that Heath was to give . . While he was aware of the existence of the vouchers, the prosecutor testified, he did not intend to make reference to them at trial, and did not consider them pertinent to any evidence that would be offered at trial. The failure to make the vouchers available to the defense was “deliberate” in the sense that it was the result of a conscious decision, rather than inadvertence, but there is nothing in the record from which we would infer that the prosecutor was aware before the first trial that the vouchers might have any value to the defense. It seems entirely credible to us that, at least at that time, that a prosecutor, rejecting the positive worth of the vouchers as evidence to buttress his own case, might overlook their value to defense counsel in demonstrating that a witness, who had testified on another issue against his client, might be impeached on a collateral statement about having lunch within a certain period with certain people.

Educated by events at the trial, and by appellant’s arguments — refined in the course of the new trial hearing, an appeal to the Supreme Judicial Court of Massachusetts, and the present litigation — we can see that the vouchers would have been of some use to appellant at the first trial. We think they should have been furnished to appellant before trial, but we do not think that the failure to do so, in the context we have set forth, when the disclosure by the Commonwealth was deemed by the presiding justice “probably the most full and complete disclosure ever made in a trial of a criminal case in this Court”, and when the useful items were but a few of four years’ worth of vouchers, requires a new trial. Other courts have adopted a variety of standards for the determination whether the prosecution’s failure to disclose exculpatory evidence after a general request from the defense requires a new trial. We conclude that the failure to disclose in this case was an innocent miscalculation of utility of the evidence to the defense. We do not reach the question whether a different standard would apply to a more serious failure to disclose. We simply hold that a new trial is not required in this case because we cannot say that had the evidence been disclosed its use would have created a reasonable possibility of a different result.

It must be borne in mind that Heath’s testimony that he lunched with Pratt and Glynn at Purcell’s Restaurant shortly before the Commodore Hotel meeting had nothing to do with appellant. The impeachment possibility lay in showing that on nine or ten working days during the two weeks preceding the Commodore Hotel meeting Heath sought reimbursement for lunches with others than Pratt and Glynn. Would this have made a difference? We take into consideration the following factors. Heath’s testimony was voluminous, he being the key witness in the whole trial. It is speculative at best that even if proven false in one detail, he would be discredited across the board. This factor takes on strength when we consider the likely response that, since Heath had testified he had orders not to pay for meals of other industry public relations personnel — which Pratt and Glynn were — , the meeting might have taken place in addition to the reported lunches, as Heath occasionally had more than one lunch session in a given day; or that a reported lunch was merely one for which he had paid the bill, as sometimes happened. We also take into consideration the influence of the nondisclosure on appellant’s ability to prepare fully for trial. Unlike the situation in Grant v. Alldredge, 498 F.2d 376 (2d Cir. 1974), no avenues of possibly fruitful exploration were foreclosed. Appellant lost the opportunity to exploit the lunch schedule reported in the vouchers — but no more.

We cannot know what was on the minds of the jurors, nor can we say how cross-examination of Heath based on the vouchers would have affected them, but the impact of the vouchers upon us is not great, and, as we have no other means by which to estimate what their impact would have been on the jury, we conclude that failure to disclose the vouchers did not sufficiently prejudice appellant to warrant a new trial.

The appellant’s remaining objections concern the nondisclosure of portions of Heath’s grand jury testimony. In his last appearance before the grand jury, in December 1965, Heath did not name Woodcock as being present at the 1962 Commodore Hotel meeting, although in previous testimony Heath had specifically identified Woodcock as a participant. The appellant contends that this apparent inconsistency should have been disclosed. The appropriate answer to this argument, however, was given by the trial court in denying the motions for new trials:

“Neither the defendants nor this court can expect that on every date and on every page of the transcript . the witness will give and repeat the aggregate of all his testimony on any particular issue, event, occurrence, or case.”

To require a witness to summarize his prior testimony, with the attendant risk that an omission could be construed as an inconsistency, would create an intolerable burden on judicial proceedings. Heath’s omission in his last grand jury appearance is hardly exculpatory at all, much less material.

The final portion of Heath’s grand jury testimony which appellant contends was wrongfully not disclosed contains a statement by Heath in which he recounted a 1957 conversation with Woodcock which he regarded as an effort by Woodcock to blackmail him. Although any motive a witness might have to distort the truth may at times be extremely important, cf. Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), in this instance the testimony about the supposed blackmail attempt, and hence the failure to disclose it, appear to have little significance. The appellant would characterize Heath as having “brooded” for seven years about an attempted blackmail but in fact the trial court found that there was much evidence of friendship between Heath and Woodcock. (Appendix 232). Under these circumstances, the unintentional nondisclosure of this evidence cannot be deemed the basis for a new trial.

In summary, we find nothing in Woodcock’s Brady contentions that requires reversal. Nor do his contentions, which are all without individual merit, gain any strength when viewed collectively.

II. Sufficiency of the Indictment

During his first trial Woodcock was furnished with a transcript of the relevant grand jury testimony against him. One day thereafter he sought to dismiss the indictment on grounds of insufficient evidence. The trial judge dismissed his motions as untimely, and the Supreme Judicial Court of Massachusetts ruled that this action was not an abuse of discretion. Woodcock now maintains that it is a denial of both due process and equal protection to permit the return of an indictment on insufficient evidence. The district court did not consider whether the evidence was in fact insufficient, since it ruled that the claim was not one of constitutional proportion. 375 F.Supp. at 646.

We agree with the conclusion of the district court. In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), the Supreme Court stated:

“If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits, a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, . if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.”

Id. at 363, 76 S.Ct. at 408 (footnote omitted; emphasis added). This language was partially repeated in Lawn v. United States, 355 U.S. 339, 349-50, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958), and more recently in United States v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). Since all of these cases involved the character of the evidence upon which a grand jury can base an indictment rather than the quantum of evidence before the grand jury, the appellant would dismiss the use of “inadequate” by the Supreme Court in the above-quoted passage as “unfortunate dictum.” We cannot accept this assessment. The Court in Costello expressly refused to adopt a rule permitting defendants to challenge indictments on grounds of inadequate or incompetent evidence. In the Court’s view such a rule “would result in interminable delay but add nothing to the assurance of a fair trial.” 350 U.S. at 364, 76 S.Ct. at 409. Both the Court’s language and the policy reasons underlying its decision militate against construing those portions of Costello which the appellant finds objectionable as mere dictum. That task is for the Supreme Court, should it ever be so inclined.

Since Woodcock’s challenge of the indictment does not raise, a constitutional issue, we need not consider the merits of his claim.

III. Severance

At several points throughout the first small loans trial, Woodcock moved to sever his case from those of his codefendants. The judge denied these motions, and the Supreme Judicial Court of Massachusetts ruled that these denials were not an abuse of discretion. 1971 Mass. Adv. Sheets at 1388-91, 275 N.E.2d at 53-55. The appellant now argues that to try him in a “mass trial” involving 14 other defendants and 48 indictments, 45 of which did not even name him, constituted a denial of due process of law. He stresses in particular the large volume of evidence, most of which neither directly involved the appellant nor was admitted against him, and the necessary complexity of the trial judge’s instructions to the jury outlining the limitations on the evidence. Quoting Coleridge, the appellant states that to expect the jury to absorb and categorize all this material would require “a willing suspension of disbelief.”

As an integral part of this argument, Woodcock complains of the admission of hearsay statements of his coconspirators which, although not directly implicating him, nevertheless tended to show the existence of a conspiracy and to prove the substantive bribery offense. By and large, the appellant does not stress particular instances of prejudice, but adverting to the confrontation clause of the sixth amendment and noting his inability to cross-examine his codefendants , he condemns the admissions in general terms as overly prejudicial.

The concern voiced by Woodcock is of course by no means novel. Both the United States Supreme Court and this Circuit have been among those who have acknowledged the danger that in reaching a verdict with respect to any individual defendant, a jury might, consciously or unconsciously, consider evidence that was admitted only against his codefendants. When the case against his codefendants is overwhelming, the relatively minor actor runs a risk of being found guilty by association. Proper rulings on the admissibility of evidence and lucid limiting instruetions to the jury cannot entirely eliminate the danger of prejudice; they can, however, reduce it to acceptable proportions. For against the prejudice encountered by an individual defendant must be balanced the legitimate governmental interest in having a joint trial— chiefly, the avoidance of the cost and docket congestion engendered by a multiplicity of trials. And it is with this balance in mind that the appellant’s claim of a denial of due process must be assessed. Cf. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).

We do not think that the complexity of the trial made it so fundamentally unfair as to deny the appellant his constitutional rights. Quite apart from any evidence of the acts and declarations of his coconspirators which may have been admitted against Woodcock, there was, as he concedes, direct testimony by Heath that at the Commodore Hotel meeting Woodcock joined the conspiracy and in fact set the maximum figure of $25,000. The jury, with the aid of the judge’s instructions and the summations of the various attorneys was certainly capable of considering this evidence. And we cannot assume that the jury was so irresponsible that it did not assess the case against each defendant independently and with full consideration of the evidence which directly implicated that individual. With respect to Woodcock, therefore, the jury must have considered Heath’s testimony about the October 1962 meeting. Heath’s credibility and the accuracy of the statement which he attributed to Woodcock were proper jury questions, and they were evidently resolved against the appellant.

To charge that the jury would convict the appellant solely on the basis of evidence which did not directly implicate him is an indictment on the jury system itself. But “not guilty” verdicts returned by the jury with respect to some of the charges against defendants Hanley and Garfinkle belie any contention that the jury reached its decision without carefully sifting the evidence. The quantity of incriminating evidence against Woodcock was small; his name did not recur throughout the testimony, constantly interwoven with allegations against his various codefendants. Thus, it would seem to have been a relatively simple task for the jury to focus on Woodcock without becoming confused about which evidence applied to whom. Whether the jury was able to follow the limiting instructions of the judge with the precision of a computer is not the relevant inquiry. It is rather whether the appellant received a fundamentally fair trial in light of the legitimate interests of the Commonwealth in trying him jointly with his coconspirators. In this connection we see nothing in the evidence, the number of defendants, or the rulings of the trial judge which would warrant a conclusion that the sheer complexity of this trial prevented the jury from appraising the independent evidence against the appellant and meting out individual justice under the law. See United States v. Stromberg, 268 F.2d 256, 264 (2d Cir.), cert. denied sub nom. Lessa v. United States, 361 U.S. 863, 80 S.Ct. 119, 4 L.Ed.2d 102 (1959).

The appellant’s reliance on Bruton v. United States, 391 U.S. 123, 88 S.Ct.

1620, 20 L.Ed.2d 476 (1968), is misplaced. Bruton held that, notwithstanding the giving of limiting instructions, a defendant’s Sixth Amendment right to confrontation was violated by the introduction of the confession of a codefendant who did not take the stand. The Supreme Court based its decision primarily on the realization that in some instances the risk that the jury will not follow limiting instructions is overwhelming. And that was so in the context of Bruton where the statements of the codefendant were not only “powerfully incriminating” but also inherently unreliable. 391 U.S. at 135-36, 88 S.Ct. 1620, 20 L.Ed.2d 476. However, as this court has already noted, United States v. Clayton, 450 F.2d 16 (1st Cir. 1971), cert. denied, 405 U.S. 975, 92 S.Ct. 1200, 31 L.Ed.2d 250 (1972), Bruton expressly did not deal with a situation where statements were admissible under a recognized exception to the hearsay rule. 391 U.S. at 128 n. 3, 88 S.Ct. 1620, 20 L.Ed.2d 476; see Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). And in any event, the situation here is in no way analogous to Bruton, since the appellant nowhere complains of a statement so incriminating that it would be a totally unrealistic test of the jury system to expect the jury to ignore it.

IV. The Mode of Prosecution

Woodcock argues that the manner in which he was prosecuted violated the equal protection clause of the fourteenth amendment. In essence, he complains that too many guns were brought to bear on him and his coconspirators. In particular, he objects to the extensive role played by agents of the Massachusetts Crime Commission, a special commission created by the legislature in 1962 “to investigate and study as a basis for legislative action the existence and extent of organized crime within the Commonwealth and corrupt practices in government at state and local levels. . ” Resolves 1962, c. 146.

We need not tarry long on this question. Both the trial court and the Supreme Judicial Court of Massachusetts found that the participation of the Commission neither offended any provisions of state law nor violated the federal constitution. Of course, in this habeas corpus action, only the latter question is of concern to this court, and we feel that no valid constitutional claim is presented. A state can, and indeed must, proceed against large and complex criminal schemes more forcefully than against small criminals. As long as there is a rational purpose behind the state’s decision on the manner of prosecution, no constitutional infirmity exists. Cf. Johnson v. Louisiana, 406 U.S. 356, 363-65, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972). That such a rational purpose was present in this case is plain. Corruption in government strikes at the heart of the democratic process and is among the most invidious of all crimes. For the legislature of Massachusetts to conclude that special measures were necessary to attack it is eminently justifiable. Moreover, the complexity of the proceedings in the “small loans cases” is witness to the extensive nature of the criminality, and therefore, the necessity of utilizing a considerable amount of resources to uproot it is quite understandable.

V. Alleged Application of an Ex Post Facto Law .

As his final contention, Woodcock asserts that with respect to his conviction for bribery, he has been the victim of the application of an ex post facto law. The statute about which he complains, as amended in 1968, provided:

“Whoever aids in the commission of a felony, or is an accessory thereto before the fact by counselling, hiring, or otherwise procuring such felony to be committed shall be indicted, tried and punished as a principal.”

Ann. Laws of Mass., C. 274 § 2 (emphasis added). Before 1968, that is, at the time of the offense and the trial, the same statute read:

“Whoever aids in the commission of a felony, or is an accessory thereto before the fact . . . shall be punished in the manner provided for the punishment of the principal felon.”

Thus, the significant language added in 1968 was “indicted, tried.” The apparent aim of the amendment was to cure an artificial variance problem which permitted an accused to avoid conviction altogether when an indictment named him as a principal but the evidence showed him to be only an accessory before the fact. See Commonwealth v. Benjamin, 358 Mass. 672, 266 N.E.2d 662, 668 (1971).

In brief, the evidence pertaining to the bribery was that Woodcock and the other defendants acted through an agent by delegating to Nathaniel Barber, one of the coconspirators, the authority to offer the bribe to Hanley. See 1971 Mass. Adv. Sheets at 1405-07, 1487, 275 N.E.2d at 64, 110. Woodcock argues that prior to the 1968 amendment to C. 274 § 2, this evidence made him at most an accessory before the fact. In affirming his conviction as a principal, therefore, he contends that in conceptual terms (though not expressly), the Supreme Judicial Court of Massachusetts applied the 1968 amendment to his case.

The fundamental difficulty with ■ this argument is that it has apparently long been the Massachusetts rule in bribery cases that one who effects a bribe through an agent can be convicted as a principal. See Commonwealth v. Mannos, 311 Mass. 94, 108, 40 N.E.2d 291, 299 (1942); Commonwealth v. Connolly, 308 Mass. 481, 489-90, 33 N.E.2d 303, 308-09 (1941). Thus, the Supreme Judicial Court of Massachusetts in no way applied a new principle of law to the appellant’s case, and we have no occasion to consider whether it would have constituted an ex post facto law if the Court had done so In truth, it appears that Woodcock’s objection is not one of constitutional dimension but rather relates to the sufficiency of the evidence to convict him of bribery, an issue which the state courts have answered adversely to him.

VI. Conclusion

Having considered all the points raised by the appellant we find no basis for disturbing the holding of the court below. Accordingly, the decision of the district court is:

Affirmed.

      . It is stipulated that the meeting was first called for legitimate purposes — to discuss the possible formation of an industry trade association and the preparation of statistics for presentation to the Rate Board.

      . Joint Appendix 520.

      . E. g., Grant v. Alldredge, 498 F.2d 376 (2d Cir. 1974); United States v. Pfingst, 490 F.2d 262 (2d Cir. 1973), cert. denied, 414 U.S. 919, 94 S.Ct. 2625, 41 L.Ed.2d 224 (1974); Evans v. Janing, 489 F.2d 470 (8th Cir. 1973); Ross v. Texas, 474 F.2d 1150 (5th Cir.), cert. de-nied, 414 U.S. 850, 94 S.Ct. 141, 38 L.Ed.2d 98 (1973); Clarke v. Burke, 440 F.2d 853 (7th Cir. 1971), cert. denied, 404 U.S. 1039, 92 S.Ct. 718, 30 L.Ed.2d 731 (1972); Rhinehart v. Rhay, 440 F.2d 718 (9th Cir.), cert. denied, 404 U.S. 825, 92 S.Ct. 53, 30 L.Ed.2d 53 (1971). This Circuit has hinted at the adoption of a presumption of prejudice in cases involving prosecutorial misbehavior. United States v. Donatelli, 484 F.2d 505, 508 n. 2 (1st Cir. 1973).

      . Joint Appendix 521.

      . Id. 235.

      . An examination of Heath’s grand jury testimony shows some link between the legislative program and Woodcock’s refusal to contribute to the Hanley program and lends credence to Mr. Travers’ explanation for his warning. See Joint Appendix 262-65. Moreover, Travers testified that his warning was based on more than merely Heath’s grand jury testimony. Joint Appendix 522.

      . Testimony about the meeting at Purcell’s was not admitted against Woodcock.

      . Evidence affecting the credibility of an important witness falls within the disclosure obligation of the prosecution. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

      . Quoted by the Supreme Judicial Court, Commonwealth v. Beneficial Finance, supra, 1971 Mass.Adv. Sheets at 1481, 275 N.E.2d 33.

      . The Second Circuit in a pertinent series of decisions has evolved a variable standard which decreases the level of “materiality” required for a new trial as the culpability of the prosecution in failing to disclose increases. Where the prosecution is simply negligent the test is whether “there - was a significant chance that this added item, developed by skilled counsel as it would have been, could have induced a reasonable doubt in the minds of enough jurors to avoid a conviction.” Grant v. Alldredge, 498 F.2d 376, 380 (2d Cir. 1974), quoting United States v. Miller, 411 F.2d 825, 832 (2d Cir. 1969). Presumably this standard would also apply to “[fjailure to appreciate the use to which the defense could place evidence in the prosecution’s hands.” United States v. Keogh, 391 F.2d 138, 148 (2d Cir. 1968). As the culpability of the prosecutor “increases from unavoidable ... to negligent nondisclosure to deliberate suppression, ‘prophylactic considerations’ ” become more compelling and eventually paramount. United States v. Pfingst, 490 F.2d 262, 277 (2d Cir. 1973), cert. denied, 417 U.S. 919, 94 S.Ct. 2625, 41 L.Ed.2d 224 (1974); Grant v. Alldredge, supra at 381 of 498 F.2d. See also Levin v. Katzenbach, 124 U.S.App.D.C. 158, 363 F.2d 287 (1966); Ross v. Texas, 474 F.2d 1150 (5th Cir. 1973), cert. denied, 414 U.S. 850, 94 S.Ct. 141, 38 L.Ed.2d 98 (1973).
      The commentary to the section of the A.B.A. Standards Relating to Discovery and Procedure Before Trial requiring disclosure of exculpatory material notes that the initial determination of what evidence to disclose always rests with the prosecutor and must be made in “light of his sense of justice”, and that “it may be expected that generally prosecuting attorneys will become accustomed to disclosing all material which is even possibly exculpatory, as a prophylactic against reversible error and in order to save court time arguing about it.” A.B.A. Standards, Discovery and Procedure Before Trial, at 74-75, approved 1970.

      . Joint Appendix 233.

      . Woodcock’s “Motion for Leave to File Motion to Dismiss” and accompanying “Motion to Dismiss” were filed on September 27, 1966. The trial began on August 9, 1966.

      . The Supreme Judicial Court of Massachusetts stated, inter alia:

      Return of an indictment on insufficient evidence is not an error of constitutional dimension such as to compel a judge to consider an untimely motion.
      1971 Mass.Adv. Sheets at 1397, 275 N.E.2d at 58-59.

      . The issue in Costello was whether an indictment can be based solely on hearsay evidence. Lawn concerned evidence allegedly obtained in violation of the Fifth Amendment, and Calandra dealt with evidence seized in violation of the Fourth Amendment.

      . In Calandra the Court also stressed the importance of orderly grand jury proceedings, uninterrupted by tangential litigation such as motions to suppress. 414 U.S. at 349-50, 94 S.Ct. 613, 38 L.Ed.2d 561. This would normally not be a problem when only the adequacy of the evidence is at issue.

      . Woodcock does stress one instance in which he contends that being tried jointly deprived him of an important piece of evidence. On cross-examination Heath was asked what amount of money he was told by his employer, American Investment Co., that it had contributed to the Rate Board program. The purpose of this inquiry was to show that the contributions of American and two other corporate defendants (Household and Beneficial) alone totalled $25,000, and therefore that Liberty could not have participated. The Commonwealth did not object, but other defendants did on the ground that the question called for hearsay. Woodcock argues that since the Commonwealth did not object, he would have had the benefit of this testimony had he been tried alone. However, the Commonwealth’s failure to object may well have been based on the fact that the testimony tended to inculpate other defendants as well as exculpate Woodcock. Whether the Commonwealth would have followed the same tactic in an individual trial is purely conjectural.

      . Woodcock’s inability to call his codefendants to the stand is cited as one reason why the trial should have been severed. However, even if Woodcock had been tried separately, there is no indication that his codefendants would have waived their fifth amendment privilege against self incrimination to testify on his behalf. Moreover, there is no indication that the testimony of any of his codefendants would have exculpated Woodcock. Thus, any advantage which might have been gained by severance seems more theoretical than real. See United States v. Leonard, 161 U.S.App.D.C. 36, 494 F.2d 955, 970 (1974), citing Gorin v. United States, 313 F.2d 641, 645-46 (1st Cir.), cert. denied, 374 U.S. 829, 83 S.Ct. 1870, 10 L.Ed.2d 1052 (1963).

      . Krulewitch v. United States, 336 U.S. 440, 445, 69 S.Ct. 716, 93 L.Ed. 790 (1949) (Jackson, J., concurring); Blumenthal v. United States, 332 U.S. 539, 559, 68 S.Ct. 248, 92 L.Ed. 154 (1947).

      . Gorin v. United States, 313 F.2d 641, 646 (1st Cir.), cert. denied, 374 U.S. 829, 83 S.Ct. 1870, 10 L.Ed.2d 1052 (1963).

      . In addition, there is the added possibility that minor actors would not be tried at all were it not for the vehicle of a joint trial. See United States v. Cohen, 145 F.2d 82, 95-96 (2d Cir. 1944), cert. denied, 323 U.S. 799, 65 S.Ct. 553, 89 L.Ed. 637 (1945).

      . The Supreme Court has defined an ex post facto law as
      one which imposes a punishment for an act which was not punishable at the time it was committed; or an additional punishment to that then prescribed; or changes the rules of evidence by which less or different testimony is sufficient to convict than was then required; or, in short, in relation to the offense or its consequences, alters a situation of a party to his disadvantage. Duncan v. Missouri, 152 U.S. 377, 382, 14 S.Ct. 570, 572, 38 L.Ed. 485 (1894); see Calder v. Bull, 3 U.S. (3 Dali.) 386, 390, 1 L.Ed. 648 (1798).

      . A subsequent amendment in 1973 returned the statute back to its pre-1968 wording.

      . The appellant concedes that in misdemean- or cases acting through agents is sufficient to sustain conviction as a principal. Dolan v. Commonwealth, 304 Mass. 325, 23 N.E.2d 904 (1939).

      . Although Mannos and Connolly involved requesting or accepting bribes, we see no basis for concluding that the rule should be any different when the crime involves offering or giving a bribe.

      . We note in passing that the Supreme Judicial Court of Massachusetts has ruled that application of C. 274 § 2, as amended in 1968, to acts committed prior to that time does not constitute an ex post facto law. Commonwealth v. Benjamin, 358 Mass. 672, 266 N.E.2d 662 (1971).


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Richard BECK, Defendant-Appellant.
    No. 74-1704.
    United States Court of Appeals, Sixth Circuit.
    March 11, 1975.

      Daniel V. O’Brien, St. Louis, Mo., Harry E. Claiborne, Las Vegas, Nev., for defendant-appellant.
    Thomas F. Turley, Jr., U. S. Atty., Glen Reid, Jr., Larry E. Parrish, Memphis, Tenn., for plaintiff-appellee.
    Before CELEBREZZE, PECK and McCREE, Circuit Judges.
   JOHN W. PECK, Circuit Judge.

Defendant-appellant (“appellant”) was convicted at a jury trial in district court of violating the Hobbs Act, 18 U.S.C. § 1951 (1970), and the bank theft statute, 18 U.S.C. §§ 2, 2113(b) (1970). The district judge sentenced appellant to concurrent prison terms of twenty and ten years on the Hobbs Act and bank theft convictions, respectively.

The convictions stemmed from the taking on December 29, 1972, of approximately $50,000 from the Frayser branch of the National Bank of Commerce in Memphis, Tennessee. James J. Sledge, an assistant vice-president and manager of the Frayser branch, testified that in mid-morning (approximately 10:45 a. m.) he received a telephone call warning that,

“I have a little bad news for you this morning, your home is being watched and your wife and grandchildren are being held as hostage. . . . Everything will be all right if you will go ahead and follow my instructions. My instructions are to get up fifty thousand dollars in hundreds, twenties and tens and deliver them to me. . . .” Trial Transcript at 50.

Sledge testified that he then told his head teller to “fix me up” a cloth bag containing $50,000 and that he parked his car containing the bag in a certain parking lot. A bank customer, “ha[ving] an idea something was wrong because two [bank employees] were in tears, and [because Sledge] had a worried look on him,” followed Sledge in his automobile away from the branch and parked near Sledge’s automobile in the parking lot. Then Sledge, as instructed, went from his automobile to a pay telephone booth from where he was unable to see his automobile. From his truck, however, the customer saw a man open the door of Sledge’s automobile and remove the bag. The customer then followed that man and the person driving that man from the parking lot, eventually “get[ting] up close enough to get the[ir] license number” before they sped away from him.

Less than four hours later (approximately 2:40 p. m.), Memphis police located a locked automobile in a motel parking lot with license plates matching those that the customer had written down and approximating the description of the automobile the customer had trailed. Authorities discovered that no motel guest had registered the automobile, that the automobile was registered to a Shirley Mueller, of St. Louis, Missouri, that her husband, Lester Henry Mueller, Jr., was suspected in a similar bank extortion in Missouri, that a Lester “Milner” had registered at the motel, and that “Milner” gave the motel a nonexistent St. Louis address and an incorrect automobile license number. The police then summoned certain investigators who began to “work the vehicle.” Because of rain the car was towed shortly thereafter (approximately 5:10 p. m.) to a police impound lot where the processing, including a search of the trunk of the automobile, was completed.

Of the four errors appellant claims on appeal, we find one to be meritorious. Consequently, we vacate the Hobbs Act conviction; we affirm the bank theft conviction.

THE HOBBS ACT VIOLATION

First, appellant claims that convicting him of violating the Hobbs Act and the bank theft statute violated the double jeopardy and cruel and unusual punishment clauses and the specialty and multiplicity doctrines. Although two circuits, including this one, have applied the Hobbs Act to the extortion of bank assets, Stout v. United States, 508 F.2d 951 (6th Cir. 1975), United States v. Grieser, 502 F.2d 1295 (9th Cir. 1974), the applicability of the Hobbs Act seems to have been assumed rather than examined. Stout, in fact, concerned the voluntariness of a guilty plea and involved the applicability of the Hobbs Act only tangentially. Moreover, while courts have broadly construed the Hobbs Act, see, e. g., United States v. Gill, 490 F.2d 233 (7th Cir. 1973), cert. denied, 417 U.S. 968, 94 S.Ct. 3171, 41 L.Ed.2d 1139 (1974) (police extortion from tavern in exchange for “overlooking” certain liquor violations), United States v. Mitchell, 463 F.2d 187, 193 (8th Cir. 1972), cert. denied, 410 U.S. 969, 93 S.Ct. 1449, 35 L.Ed.2d 705 (1973) (militant civil rights activity), United States v. Pranno, 385 F.2d 387, 389 (7th Cir. 1967), cert. denied, 390 U.S. 944, 972, 88 S.Ct. 1028, 19 L.Ed.2d 1132 (1968) (politicians’ threat to withhold building permit unless $20,000 paid), we remain unpersuaded thát the Hobbs Act was designed to reach, or reaches, the extortion of bank assets, having been intended to curb labor racketeering. See United States v. Franks, 511 F.2d 25 (6th Cir. 1975). However, we need not here consider the applicability of the Hobbs Act, since we conclude that the Hobbs Act conviction was improper because the bank theft statute, being “a comprehensive scheme for prosecuting and punishing persons who rob federally-insured banks,” was intended to exclusively proscribe conduct within its “coverage.” United States v. Canty, 152 U.S.App.D.C. 103, 469 F.2d 114, 127-129 (D.C.Cir. 1972).

United States v. Marx, 485 F.2d 1179 (10th Cir. 1973), cert. denied, 416 U.S. 986, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974), which involved strikingly similar extortion of bank assets, established that the bank theft statute proscribes such conduct. We recognize that this (Stout, supra) and the Ninth (Grieser, supra) circuits have applied the Hobbs Act to the extortion, or attempted extortion, of bank assets, but no case has yet addressed the exclusivity of the bank theft statute in reference to the Hobbs Act. Stout and Grieser were convicted only of violating the Hobbs Act.

Like the Canty court, however, we are of the view that, in appropriate circumstances and under additional facts, a bank robber can be convicted of and sentenced, even consecutively, for a section 2113 (“Bank Robbery and incidental crimes”) and another violation. For example, had appellant been a convicted felon and used certain firearms, 18 U.S. C.App. § 1202(a) (1970), in obtaining the bank’s monies, he could be convicted of and sentenced, even consecutively, for such firearms and bank theft violations. In the present situation, however, the Hobbs Act conviction cannot stand because precisely the same facts which permit judicial notice of the interstate nature of a national bank’s operations, without addition or modification, provide the basis for it and a conviction under section 2113.

Although the Hobbs Act conviction cannot stand, we uphold the bank theft conviction because we find no prejudice in appellant’s being tried on both charges rather than being tried on the bank theft charge alone. Joining the Hobbs Act charge resulted in the admission of no prejudicial evidence that would have been inadmissible at a trial on charges of violating only the bank theft statute. Canty, supra, 469 F.2d at 129. See Prince v. United States, 352 U.S. 322, 329, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957); United States v. Faleafine, 492 F.2d 18, 26 (9th Cir. 1974); Marx, supra, 485 F.2d at 1186. See also Rutkowski v. United States, 149 F.2d 481, 483 (6th Cir. 1945).

THE SEARCH AND SEIZURE ISSUES

Second, appellant urges that the warrantless seizure and multiple searches of the automobile violated the Fourth Amendment, requiring the suppression as evidence of the items uncovered in the searches. Even if the seizure and searches were otherwise proper, appellant claims that the admission of his spi-. ral notebook and its contents violated his Fourth Amendment right of privacy with regard to personal papers and his Fifth Amendment privilege against self-incrimination.

Even assuming that appellant has standing to assert improper searches and seizure, the warrantless seizure and searches were “reasonable” under the circumstances and, thus, lawful. Similarly, we find no error in admitting the spiral notebook.

This court and the Supreme Court have often dealt with the lawfulness of warrantless searches and seizures of automobiles. Though “reasonable” warrantless searches are rare, Cash v. Williams, 455 F.2d 1227, 1231-1232 (6th Cir. 1972), probable cause that an automobile contains evidence or fruits of a crime plus “exigent circumstances” invariably justify the warrantlessness of a search or seizure of the automobile. Here, because direct evidence established that the automobile was used in obtaining the bag from Sledge’s automobile and because it was improperly registered at the motel, appellant neither argues nor could argue that there was no probable cause. Appellant does argue, however, that no exigent circumstances excused the government’s failure to obtain a warrant. Admittedly, probable cause alone can never justify a warrantless search or seizure, United States v. Lewis, 504 F.2d 92, 100 (6th Cir. 1974). Like United States v. Shye, 473 F.2d 1061 (6th Cir. 1973), however, exigent circumstances existed in that the searches and seizure occurred within hours of the taking of the bag and in that the thieves were still at large and the stolen property was unrecovered. The cases appellant has cited and the cases in this circuit invalidating warrantless automobile searches because exigent circumstances were absent have involved a search or seizure either several days after the crime, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), (more than one month), Lewis v. Cardwell, 476 F.2d 467 (6th Cir. 1973), rev’d on other grounds, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (more than two months), Cook v. Johnson, 459

F.2d 473 (6th Cir. 1972) (four days), where the suspected culprit has been arrested and jailed, Kaufman v. United States, 453 F.2d 798, 802-803 (8th Cir. 1971) , where the stolen “property” has been recovered, Cook, supra, where the police could properly retain custody of the automobile on another basis pending issuance of a warrant, Cash, supra, 455 F.2d at 1231, or where the facts underlying the search and seizure were available to the law officers prior to beginning their investigative work, see United States v. Fullmer, 457 F.2d 447 (7th Cir. 1972) . But see Lewis v. Cardwell, 417 U.S. 583, 94 S.Ct. 2464, 2472, 41 L.Ed.2d 325 (1974).

We again hold, as has the Supreme Court, that a warrant to authorize' the further search of the automobile at the impound lot was not required. Card-well, supra, 417 U.S. at 592-596, 94 S.Ct. at 2470-2472, 41 L.Ed.2d at 336-338; Chambers v. Maroney, 399 U.S. 42, 51-52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); United States v. Isham, 501 F.2d 989, 991 (6th Cir. 1974).

Appellant’s further contention that, even if the warrantless searches and seizure of the automobile were proper, the admission of his spiral notebook was nonetheless improper, stems from Supreme Court dictum. In Boyd v. United States, 116 U.S. 616, 633, 6 S.Ct. 524, 534, 29 L.Ed. 746 (1886), which involved an order to produce evidence, the Court in dictum went on to confess its inability “to perceive that the seizure of a man’s private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself.” Accord, Gouled v. United States, 255 U.S. 298, 306, 41 S.Ct. 261, 65 L.Ed. 647 (1921). More. recently, although Warden v. Hayden, 387 U.S. 294, 303, 87 S.Ct. 1642, 1648, 18 L.Ed.2d 782 (1967), abolished the “mere evidence” rule, the Court noted that “[tjhis ease thus does not require that we consider whether there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure.” We, however, find that admitting the spiral notebook, on these facts, violated neither the Fourth nor Fifth Amendments.

Admitting properly seized “personal papers” cannot violate the Fifth Amendment privilege against self-incrimination. Unlike an order which “compels” production of evidence, Boyd, supra, 116 U.S. at 618, 6 S.Ct. 524, 29 L.Ed. 746 the owner of a notebook uncovered in a search in his absence is under no compulsion. See United States v. Blank, 459 F.2d 383, 385 (6th Cir. 1972), rev’g 330 F.Supp. 783 (N.D. Ohio 1971); United States v. Murray, 492 F.2d 178, 191 (9th Cir. 1973); United States v. Scharfman, 448 F.2d 1352, 1355 (2d Cir. 1971), cert. denied, 405 U.S. 919, 92 S.Ct. 944, 30 L.Ed.2d 789 (1972). But see Hill v. Philpott, 445 F.2d 144 (7th Cir. 1971). Being unaware of the search, he has no choice. Comment, The Search and Seizure of Private Papers: ^ Fourth and Fifth Amendment Considerations, 6 Loyola (Cal.) L.Rev. 274, 290 n. 93 (1973). Couch v. United States, 409 U.S. 322, 327-336, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973), established that mandated cooperation, rather than the “privacy” of the owned papers, is the sine qua non of the privilege against self-incrimination. See Comment, The Protection of Privacy by the Privilege Against Self-Incrimination: a Doctrine Laid to Rest?, 59 Iowa L.Rev. 1336 (1974). Similarly, though “testimonial” evidence was seized in United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), the Court sustained the admission of such uncompelled evidence without feeling even the need to discuss the privilege against self-incrimination.

Though the overall search and seizure is proper and though there is no compelled cooperation, the search and seizure of the papers must also be “reasonable.” As the Second Circuit so aptly said,

“The reason why we shrink from allowing a personal diary to be the object of a search is that the entire diary must be read to discover whether there are incriminating entries; most of us would feel rather differently with respect to a ‘diary’ whose cover page bore the title ‘Robberies I Have Performed.’ Similarly the abhorrence generally felt with respect to ‘rummaging’ through the contents of a desk to find an incriminating letter would not exist in the same measure if the letter were lying in plain view.” United States v. Bennett, 409 F.2d 888, 897 (2d Cir.), cert. denied sub. nom., Haywood v. United States, 396 U.S. 852, 90 S.Ct. 113, 24 L.Ed.2d 101 (1969), Thomas v. United States, 402 U.S. 984, 91 S.Ct. 1670, 29 L.Ed.2d 149 (1971).

The “search” of the spiral notebook for its communicative value and for fingerprints, see United States v. Hill, 454 F.2d 282 (9th Cir. 1972), under the present circumstances, was hardly unreasonable in that, as in Bennett, there was no extensive “rummaging.” Though appellate counsel has characterized the notebook as appellant’s “private diary” (Appellant’s Reply Brief at 22), the “diary” consisted of just one page, the first page, in fact, of the notebook. United States v. Gargotto, 510 F.2d 409 (6th Cir. 1974), sustained the reasonableness of a search involving much greater “rummaging.” Cf. Philpott, supra (more than thirty cartons of records seized); United States v. Zive, 299 F.Supp. 1273 (S.D.N.Y.1973) (at least seven desk or file drawers).

THE INSTRUCTIONS TO THE JURY

Third, appellant claims that the district judge erred in charging the jury that it could convict appellant if the bank’s money was “taken or carried away.” Assuming that the instruction were error and even “plain error,” Fed. R.Crim.P. 52(b), in light of appellant’s failure to object to it, it certainly was

harmless. Neither appellant nor the evidence suggests the possibility that money was taken, but not carried away, or carried away, but not taken. Marx, supra, 485 F.2d at 1185; McDonnell v. United States, 472 F.2d 1153, 1156-57 (8th Cir.), cert. denied, 412 U.S. 942, 93 S.Ct. 2785, 37 L.Ed.2d 402 (1973); United States v. Jacquillon, 469 F.2d 380, 386 (5th Cir. 1972), cert. denied, 410 U.S. 938, 93 S.Ct. 1400, 35 L.Ed.2d 604 (1973).

THE SUFFICIENCY OF THE EVIDENCE

Fourth, appellant claims insufficient evidence was received to establish that the money was actually placed in the bag, that even if money were so placed that it was the bank’s money, and that he was involved in the taking of the money. However, as hereinabove stated, branch manager Sledge testified that he “went to [his] head teller, Mrs. McMillan, and told her to fix me up fifty thousand dollars in a cloth bag,” and that she “immediately, on my instructions, went to the vault and fixed up the money.” Trial Transcript 82. Moreover, his secretary testified that “we” went to the vault “to get the money.” Trial Transcript at 20-21. Although Mrs. McMillan never testified, viewing the evidence and reasonable inferences therefrom in the light most favorable to the government, United States v. Hearn, 496 F.2d 236, 237 (6th Cir.), cert. denied, 419 U.S. 1048, 95 S.Ct. 622, 42 L.Ed.2d 642 (1974), we find sufficient evidence that money belonging to the bank was placed in the bag. We consider the evidence that appellant was involved in obtaining the money to be overwhelming.

The conviction of violating the bank theft statute is affirmed; the conviction of violating the Hobbs Act is vacated.

      . “(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.”

      . “(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

        “(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” 18 U.S.C. § 2 (1970).
      “Whoever takes or carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both.” 18 U.S.C. § 2113(b) (1970).

      . Sledge’s wife and grandchildren were never harmed and, in fact, were never held hostage. The telephone line to Sledge’s residence, however, had been cut preventing Sledge from contacting them and evoking alarm in Sledge in light of the caller’s admonition that “[f]orty-five [seconds] after I hang up you can call your home and see if you can get through.” Trial Transcript at 50.

      . The grand jury on January 8, 1973, indicted Mueller and appellant on charges of violating the Hobbs Act and the bank theft statute. Mueller, however, was never tried, having been slain in Clayton, Missouri, on May 28, 1973. Trial commenced on July 9, 1973.

      . Though the government has claimed that appellant, being neither the owner of the automobile nor present during the search, lacks standing, recent case law portends finding such standing in appellant. In Cash v. Williams, 455 F.2d 1227, 1229 (6th Cir. 1972), this court flatly said that “[i]n order to establish standing to contest a search, a defendant must show that he owned or possessed the seized property or that he had a possessory interest in or was present at the premises searched” (emphasis in originals). Moreover, in United States v. Hearn, 496 F.2d 236, 240-241 (6th Cir.), cert. denied, 419 U.S. 1048, 95 S.Ct. 622, 42 L.Ed.2d 642 (1974), for example, in finding no standing, this court pointed out that the defendant asserting the unlawful search claimed no interest in the seized property. Similarly, Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), aff’g 452 F.2d 868 (6th Cir. 1971), though finding no standing, four times noted that the party asserting the unlawful search claimed “no proprietary or possessory interest [in] the goods seized . . ., nor' was any evidence of such an interest presented.” 411 U.S. at 225-226, 228, 229-230, 93 S.Ct. at 1567. Because we assume standing, it is unnecessary to determine whether appellant, in fact, sufficiently asserted a “proprietary or possessory interest ... in the goods seized.”

      . E. g., United States v. Upthegrove, 504 F.2d: 682 (6th Cir. 1974); United States v. Lewis, 504 F.2d 92 (6th Cir. 1974); United States v. Kemper, 503 F.2d 327 (6th Cir. 1974); United States v. Isham, 501 F.2d 989 (6th Cir. 1974); United States v. Bush, 500 F.2d 19 (6th Cir. 1974); United States v. Shye, 473 F.2d 1061 (6th Cir. 1973); Cook v. Johnson, 459 F.2d 473 (6th Cir. 1972); Cash v. Williams, 455 F.2d 1227 (6th Cir. 1972).

      . E. g., Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), rev’g 476 F.2d 467 (6th Cir. 1973); Coolidge v. New Hampshire, 403 U.S. 443, 458-464, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

      . Though defense counsel objected to two other aspects of the jury instructions, he failed to object to the “take or carry away” aspect. Objections to the Charge 3-5.

      . On oral argument in this court, government counsel explained that, although Mrs. McMillan had been scheduled to testify, she was never called because it was “thought unnecessary.” The trial transcript reflects the government’s aim at facilitating the advance of the trial.
      “[THE COURT: Y]ou made an earlier estimate of seventy witnesses.
      “[THE PROSECUTOR]: I have been paring on it, if the Court please, and have pared it down as best I can to approximately forty-five at this time.” Trial Transcript at 67.


author: MOORE, Circuit Judge:

text:
    Thomas MOORE, Plaintiff-Appellant, and Vermont Welfare Rights Association, Intervenor-Appellant, v. Joseph BETIT, Commissioner of the Vermont Department of Social Welfare, et al., Defendants-Appellees.
    Nos. 28, 29, Docket 74-1300, 74-1301.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 20, 1974.
    Decided Feb. 10, 1975.

      Douglas L. Molde, Vermont Legal Aid, Inc., St. Albans, Vt., for appellants.
    David L. Kalib, Asst. Atty. Gen., Montpelier, Vt., for defendants-appellees.
    Before MOORE, MULLIGAN and ADAMS , Circuit Judges.

       Of the United States Court of Appeals for the Third Circuit, sitting by designation.

   MOORE, Circuit Judge:

Plaintiffs, Thomas Moore, an individual welfare recipient (ANFC — UF) and the Vermont Welfare Rights Association representing its members, have brought an action against officials of several Vermont social service and personnel departments seeking declaratory and injunctive relief regarding the State’s obligations pursuant to provisions of the Social Security Act requiring States to train and use welfare recipients and low-income persons as community service aides. A State plan was submitted to comply with these provisions in 1969 and plaintiffs claim this created a contract between Vermont and the Health, Education and Welfare Department. The District Court granted defendants’ motion to dismiss for lack of jurisdiction. We reverse the finding of the court below that plaintiffs showed only indirect or speculative damages and we remand for further consideration of the matter in controversy.

Plaintiffs seek a declaration that the present personnel policies of the State of Vermont pertaining to the Department of Social Welfare’s subprofessional employees are invalid and a preliminary and permanent injunction ordering the State officials to provide for the training and effective use of public assistance recipients and other persons of low income as subprofessional employees in the Vermont Department of Social Welfare. Plaintiffs allege that the federal court has jurisdiction of the controversy by virtue of federal question jurisdiction, 28 U.S.C. § 1331, and seek to establish the jurisdictional amount by analogizing their position to that of the beneficiaries of a trust fund. Under plaintiffs’ theory, welfare recipients and low income persons are the intended beneficiaries of a trust fund created by the State when the State submits and HEW approves a plan. The “res” is composed of the state and federal moneys earmarked for the specific program employing welfare recipients and low-income persons. The fund is to be distributed to those welfare recipients and low-income persons who apply and qualify in competition with other potential beneficiaries. Plaintiffs rely on Berman v. Narragansett Racing Association and Bass v. Rockefeller as support for this “trust fund” approach to jurisdictional amount.

Defendants challenged the jurisdiction of the court below bringing motions, pursuant to Fed.R.Civ.P. 12, to dismiss for failure to state a claim upon which relief may be granted and for failure to demonstrate that the amount in controversy exceeds $10,000., exclusive of interest or costs.

The court granted defendants’ motion to dismiss for lack of jurisdiction and therefore did not consider whether plaintiffs had stated a claim upon which relief could be granted. The court found that plaintiffs had not demonstrated $10,000. in damages because damages due to job unavailability are indirect damages “ . . . long . . . held too speculative to support jurisdiction under section 1331.” The court cited Rosado v. Wyman, 414 F.2d 170, 176 — 7 (2d Cir. 1969), rev’d on other grounds 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970) for the proposition that indirect damages and damages which are too speculative do not support jurisdiction. This principle has traditionally been applied to damages which are intangible or to damages incapable of reduction to monetary terms such as free speech, child custody and loss of personal liberty. See e. g. Kiernan v. Lindsay, 334 F.Supp. 588, 594-5 (S.D.N. Y.1971). We hold that the basis for jurisdiction in this case is not intangible and speculative. Appellants have not cited loss of self-esteem or self-pride or other intangible factors involved in employment as damages but rather the allegations of loss involve the “trust fund” concept.

Federal courts have consistently held that absolute certainty in valuation of the right involved is not required to meet the amount in controversy requirement but rather the requirement is that there be a reasonable probability of an amount in controversy exceeding jurisdictional amount if an amount can be ascertained pursuant to some realistic formula. See e. g., Lawrence v. Oakes, 361 F.Supp. 432 (D.Vt.1973); Scherr v. Volpe, 336 F.Supp. 882, 885 (W.D.Wis. 1971) aff’d 466 F.2d 1027 (7th Cir. 1972). Conversely, courts should dismiss only when it is clear to a legal certainty that jurisdictional amounts cannot be met. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-9, 58 S.Ct. 586, 82 L.Ed. 845 (1938), Opelika Nursing Home, Inc. v. Richardson, 448 F.2d 658 (5th Cir. 1971) on remand 356 F.Supp. 1338, 1341 (M.D.Ala.1973).

Because of its finding, the court below did not consider the propriety of the “trust fund” approach. We must remand for such consideration as is necessary to allow the district court to make a factfinding determination as to what the amount of that “fund” is, because on the inadequate record, we cannot say to a legal certainty that the amount in controversy does not exceed $10,000. At this point it appears that the original 1969 plan provided for 9 full-time or 24 part-time employees, but we have no indication of the monetary commitment involved. Vermont hired 7 persons in another capacity when the original program terminated, and subsequently a third program involving 16 persons was begun. Under conflicting allegations as to the effect of these various programs on the amount in controversy, remand is proper due to the factual elements of resolving the question of jurisdictional amount. Further questions arise as to how much of the financial burden for the program was taken by the State and how much was to be funded by the federal government. Is the “fund” constituting the amount in controversy limited to the State appropriation? Nor has there been any consideration of whether the amount of the fund should be reduced by the amount of welfare benefits terminated when employment begins. Since the cause is remanded for this threshold factual determination, we also reserve any decision on the validity of the “trust fund” approach outside the class action context. Normally the jurisdictional amount requirement is met by a good faith allegation of the plaintiff. When defendant challenges that amount, plaintiff has the burden of demonstrating the amount. We must remand in this case for a hearing to provide an opportunity for plaintiffs to support their allegation with facts about the financial responsibilities of the State pursuant to its plan and plaintiffs also have the burden of demonstrating the propriety of the “trust fund” approach under the circumstances of this case. See Opelika Nursing Home, Inc. v. Richardson, 448 F.2d 658, 666 — 7 (5th Cir. 1971).

Reversed and remanded for further consideration of amount in controversy.

      . The defendants in this action include: the Commissioner of the Vermont Department of Social Welfare, the Acting Commissioner of the Vermont Department of Personnel, and the Commissioner of the Vermont Department of Rehabilitation.

      . The Social Security Act requires States to submit aid “plans” which must be approved by the Secretary of Health, Education and Welfare before federal funds may be used in state categorical assistance. See e. g. 42 U.S.C. § 602(a)-(b) (1970). These plans are required to provide:
      for the training and effective use of paid sub-professional staff, with particular emphasis on the full-time or part-time employment of recipients and other persons of low income, as community services aides, in the administration of the plan . . . 42 U.S.C. Sections 302(a)(5)(B), 602(a)(5)(B), 1202(a)(5)(B), 1352(a)(5)(B), 1396a(a)(4)(B) (1970); 45 C.F.R. Section 225 (1972).

      . Second Amended Complaint.

      . 28 U.S.C. Section 1331(a) provides:
      The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.

      . 414 F.2d 311 (1st Cir. 1969).

      . 331 ' F.Supp. 945 (S.D.N.Y.), Appeal dismissed.as moot 464 F.2d 1300 (2nd Cir. 1971).
        See related case Bass v. Richardson, 338 F.Supp. 478 (S.D.N.Y.1971).

      . Slip opinion of district court p. 5. Appellant’s Appendix A-55.

      . Goldsmith v. Sutherland, 426 F.2d 1395 (6th Cir. 1970), cert. denied 400 U.S. 960, 91 S.Ct. 353, 27 L.Ed.2d 270 (1970).

      . Barry v. Mercein, 46 U.S. (5 How.) 103, 120, 12 L.Ed. 70 (1847); Clifford v. Williams, 131 F. 100 (D.C.1904).

      . Kurtz v. Moffitt, 115 U.S. 487, 6 S.Ct. 148, 29 L.Ed. 458 (1885).

      . Cf. Gibson v. Jeffers, 478 F.2d 216 (10th Cir. 1973).

      . The Bass trust fund theory has been cited by several courts in various factual circumstances but the majority of cases approving Bass or similar jurisdictional amount theory do so where plaintiffs bring class actions. See, New Jersey Welfare Rights Organization v. Cahill, 483 F.2d 723 (3d Cir. 1973) (class action challenging State change in AFDC need determination method); Martinez' v. Richardson, 472 F.2d 1121, 1125 (10th Cir. 1973) (non-class action where jurisdiction was not challenged at district court level; on appeal, court held that they could not find to a legal certainty that less than $10,000. was in controversy); United Low Income, Inc. v. Fisher, 470 F.2d 1074 (1st Cir. 1972) (class action challenging State termination of AFDC benefits to families with unemployed fathers); Comprehensive Group Health Services Board of Directors v. Temple University, 363 F.Supp. 1069 (E.D.Pa.1973) (two organizations as plaintiffs where each organization has a budget in excess of $10,000.); Yanez v. Jones, 361 F.Supp. 701 (D.Utah 1973) (class action by medically needy attacking medical fee structure used by State employees); Holtzman v. Richardson, 361 F.Supp. 544 (E.D.N.Y. 1973) (jurisdictional amount in non-class action determined from defendant’s point of view); Harmony Nursing Home, Inc. v. Anderson, 341 F.Supp. 957 (D.Minn.1972) (nursing home challenges state payment plan); National Welfare Rights Organization v. H. E. W., District Court for Dist. of Columbia, Oct. 16, 1973, No. 73-264 (court refused defendant’s motion to dismiss for lack of jurisdiction; “trust fund” approach where plaintiffs sought class action which was not allowed by court in interests of simplicity and justice). But see Duffany v. Van Lare, 373 F.Supp. 1060 (N.D.N.Y.1973); New York City Coalition for Community Health v. Lindsay, 362 F.Supp. 434 (S.D.N.Y.1973) (not a class action).


author: PER CURIAM:

text:
    INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, AFL-CIO, Appellee, v. NORTH CAROLINA PORTS AUTHORITY, Appellant, James W. Davis et al., Defendants.
    No. 74-1344.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 5, 1974.
    Decided Feb. 26, 1975.

      Edwin M. Speas, Jr., Asst. Atty. Gen. of N. C. (Robert Morgan, Atty. Gen. of N. C., on brief), for appellant.
    Herzl S. Eisenstadt, New York City (Thomas W. Gleason, New York City, on brief), for appellee.
    Before WINTER, CRAVEN and RUSSELL, Circuit Judges.
   PER CURIAM:

For more than six years the North Carolina Ports Authority has refused to bargain with the International Longshoremen’s Association (ILA) as the certified representative of certain Ports Authority employees under the Railway Labor Act, 45 U.S.C. §§ 151-188. There has been labor unrest, and disruption of work, including at least one instance of closing the port. On a previous appeal we held the Ports Authority was a “carrier” within the meaning of the Act, reversing a dismissal of the complaint by the district court, 332 F.Supp. 95, and remanding. 463 F.2d 1 (4th Cir. 1972). In a carefully reasoned opinion the district court has now rejected the Authority’s remaining defenses and held it must recognize and bargain with the union. 370 F.Supp. 33 (E.D.N.C.1974). We affirm.

On the issues of whether the employees of the Authority represented by the ILA are “employees” within the meaning of the RLA, and whether due process was observed at the proceedings before the National Mediation Board pri- or to the certification election, we adopt the opinion below. Id. at 39-41. We are also in complete agreement with Chief Judge Butler’s reasoning in denying the Authority’s defense of immunity from suit under the eleventh amendment, id. at 36-38, but the question is sufficiently sensitive to warrant brief discussion.

It is now settled that a state of the union is protected against suits for damages by its own citizens by the eleventh amendment, and not simply by the more vulnerable doctrine of sovereign immunity. See Employees v. Missouri Public Health Dept., 411 U.S. 279, 309, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973) (Brennan, J., dissenting). Thus the suit should have been dismissed unless its maintenance could be said to lie within the doctrine of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), or the state has effectively consented to be sued.

We fully agree with the district judge that when a state leaves its traditional governmental activity and enters upon a proprietary enterprise that is “. . . subject to congressional regulation, it subjects itself to that regulation as fully as if it were a private person or corporation.” Parden v. Terminal Ry., 377 U.S. 184, 196, 84 S.Ct. 1207, 1215, 12 L.Ed.2d 233 (1964). The district court noted that this case is controlled by Parden and correctly distinguished Employees v. Missouri Public Health Dept., 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973).

We adopt the district court opinion as our own. 370 F.Supp. 33 (E.D.N.C.1974).

Affirmed.

      . See preliminary injunction to stop picketing and open the port, Wilmington Shipping Co. v. International Longshoremen’s' Association, Local 1426, Civil No. 1667 (E.D.N.C. Sept. 21, 1973).

      . Chief Judge Butler also rejected the Authority’s claim that North Carolina General Statutes § 95-98, which declares contracts between any state instrumentality and a labor union to be against public policy and void, precluded the relief sought by the ILA. See 370 F.Supp. at 40-41. The Authority does not assert this claim on appeal.

      . Because we agree with the alternate ground of decision adopted by the district court, we need not consider whether a suit against a state agency as opposed to the state itself can be brought within the Ex Parte Young fiction, but we note that the suit is for an injunction and not for damages.


text:
    FRIZZELLE FARMS, INC., Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
    No. 74-1999.
    United States Court of Appeals, Fourth Circuit.
    Argued March 6, 1975.
    Decided March 17, 1975.
    Frank P. Meadows, Jr., Rocky Mount, N. C. (Biggs, Meadows, Batts & Winberry, Rocky Mount, N. C., on brief), for appellant.
    James E. Johnson, Jr., Hull, Towill, Norman, Barret & Johnson, Augusta, Ga., and R. Grant Singleton, Singleton & Singleton, Myrtle Beach, S. C., on brief, for amicus curiae, Warner M. Lewis and Estate of Mary C. Lewis, Deceased, Warner M. Lewis, Executor.
    George G. Wolf, Atty., Tax Div., U. S. Dept, of Justice (Gilbert E. Andrews, Michael L. Paup, Attys., Tax Div., U. S. Dept, of Justice, and Scott P. Crampton, Asst. Atty. Gen., on brief), for appellee.
    Before WINTER, CRAVEN and RUSSELL, Circuit Judges.
   PER CURIAM:

After hearing oral argument and considering the briefs, and after studying the record, we agree with the Tax Court, Frizzelle Farms, Inc., 61 T.C. 737 (1974), that the fair market value of warrants received by the taxpayer as a result of the merger of P. Lorillard Corporation into Loew’s Theatres, Inc., may be determined by the over-the-counter purchase and sales transactions of such warrants. As a consequence, we agree that the gain realized by the taxpayer from the exchange could not be reported on the installment basis under Section 453 of the Internal Revenue Code of 1954. We affirm on the opinion of the Tax Court.

Affirmed.


author: WEICK, Circuit Judge.

text:
    In re The Winner Corporation, formerly known as Winner Boats, Inc., Debtor. The WINNER CORPORATION, formerly known as Winner Boats, Inc., Applicant-Appellee, v. H. A. CAESAR & CO, INC., Respondent-Appellant.
    Nos. 74-1719, 74-1720, and 74-2050.
    United States Court of Appeals, Sixth Circuit.
    Feb. 25, 1975.

      Michael S. Landes, Hahn, Hessen, Margolis & Ryan, New York City, for respondent-appellant.
    Michael Miller, Richard Bird, Gracey, Maddin, Cowan & Bird, Nashville, Tenn., for applicant-appellee.
    Before WEICK and CELEBREZZE, Circuit Judges, and DUNCAN , District Judge.

       The Honorable Robert M. Duncan, Judge, United States District Court for the Southern District of Ohio, sitting by designation.

   WEICK, Circuit Judge.

These three appeals were consolidated for hearing. The controversy between the parties arose in proceedings for arrangement under Title XI of the Bankruptcy Act of The Winner Corporation, Debtor, pending since December 4, 1973 in the Bankruptcy Court for the Middle District of Tennessee, Nashville Division.

No Trustee was appointed for the Debtor. The Referee in Bankruptcy permitted Winner to remain in possession of its assets and to operate its business of manufacturing boats. Creditors were enjoined from commencing or continuing suits against the debtor.

Shortly after commencement of the proceeding Winner filed a petition in the Bankruptcy Court against appellant, H. A. Caesar & Co., Inc. (Caesar), seeking a turnover order requiring it to pay Winner credit balances alleged to be due and owing Winner under the provisions of a written factoring agreement which had been entered into between the parties on or about August 24, 1964. By the terms and provisions of this agreement Caesar agreed to and did purchase Winner’s accounts receivable. In the agreement Winner warranted that all of its sales were bona fide valid sales, free and clear of all claims, offsets, counterclaims, liens and encumbrances. Caesar was to receive a commission of 1%% of the net sales. The agreement was subsequently amended in certain particulars none of which is of importance here.

The agreement further provided that upon request, or at its own option, Caesar would remit to Winner the net amount of Winner’s credit balance on Caesar’s books, retaining so much of the credit balance as Caesar “may deem necessary and commensurate with the volume and character of the business done to protect us against claims, returns and allowances and all of your indebtedness to us.”

It was Caesar’s defense to the petition for a turnover order that it had the right, under the provisions of the written agreement, to retain the amount which it had withheld as a reserve to protect itself against such claims as above set forth.

The evidence presented at the hearing in the Bankruptcy Court was to the effect that prior to June, 1973 Caesar had remitted to Winner at least 97% of the invoice price of accounts receivable purchased from Winner. The 3% withheld included Caesar’s commission and the discount of the face value of accounts receivable to reflect future maturity dates.

In June, 1973, Caesar learned that Winner’s chief executive officer had been replaced with an officer of a local bank; that one of its engineers had been dismissed; and that there was a possible major defect in the grillage of Winner’s boats. Caesar began withholding an additional 10% as a reserve. The additional reserve was increased to 25% in September, 1973, allegedly because of information which it had received concerning Winner’s financial condition. Subsequently Caesar purchased approximately $90,000 of accounts receivable from Winner, for which no remittance was made. The $90,000 of accounts receivable was held by Caesar as a reserve to protect itself against chargebacks on previous purchases of $900,000 of accounts receivable.

The Bankruptcy Judge summarily determined the issues on the turnover petition on March 26, 1974, and held that under controlling New York law Caesar was required to exercise its withholding rights in good faith. He held that Caesar had not withheld amounts beyond the 3% commission and discount plus 10% reserve, in good faith. He ordered Caesar to pay all monies held by it, less 13%, to the debtor in possession, subject to an accounting; and further ordered that all further claims and chargebacks be submitted to him for approval, and until they were approved they could not be set off against the amount owing to Winner.

On April 5, 1974 the Bankruptcy Judge denied Caesar’s request for a stay of his March 26th order, but granted an extension of time to April 25, 1974 to appeal the order to the District Court. On April 12, 1974 Caesar filed a notice of appeal to the District Court from the denial of the stay and also applied to the District Court for a stay. The District Court on the same day, denied the stay and later entered a formal order to that effect.

On April 17, 1974 the Bankruptcy Judge ordered Caesar to pay Winner $190,000 by April 22, 1974, allowing it to retain $130,000 as a reserve. At a hearing on April 17th the Bankruptcy Judge ruled that before Caesar could set off against the amount due Winner the sum of $140,000 in alleged warranty claims, Caesar would have to present said claims to the Judge for approval.

On April 22, 1974 Caesar filed notices of appeal to the District Court from the Bankruptcy Judge’s orders of March 26th and April 17, 1974.

On April 25, 1974 the Bankruptcy Judge certified facts to the District Court, indicating the contempt of Caesar for failing to obey his March 26th and April 17th orders. On April 26 the District Court issued a notice of hearing set for May 2, 1974, on the certificate of facts.

On April 30, 1974 the Bankruptcy Judge confirmed the debtor’s plan of arrangement. The arrangement proceeding had been in the Bankruptcy Court only since December 4, 1973.

At the hearing on May 2, 1974 the District Court considered scheduling a hearing on the merits of the appeals from the Bankruptcy Judge to the District Court, and Caesar’s failure to comply with the Bankruptcy Judge's orders. Caesar informed the Court that the earliest it could be ready for a hearing on the merits of the appeals would be May 29, 1974. The Court indicated its displeasure at the delay and stated that a hearing would be held on May 8, unless Caesar filed a surety bond, in which event the hearing would be set for May 29, 1974.

The District Judge then turned to the matter of Caesar’s contempt, and indicated that he would decide the contempt matter before May 8th, and probably by May 6th. Caesar filed the surety bond for $200,000 on May 7, 1974.

On May 6, 1974 the District Judge entered an order adjudging Caesar in contempt of the Bankruptcy Judge’s orders, imposing a $5,000-fine, payable to the debtor, for Caesar’s past contempt, and imposed another fine of $1,000 per day, beginning May 10, 1974, until Caesar complied with the Bankruptcy Judge’s order to pay the debtor in possession $190,000. The order also imposed a third fine of $100 per day, beginning after Caesar paid the aforementioned $190,000, until Caesar complied with the Bankruptcy Judge’s order by filing an accounting. All of these fines were payable to the debtor.

Caesar filed a petition in mandamus in this Court to compel the Bankruptcy Judge and the District Judge to stay the March 26th and April 17th turnover orders. On May 8, 1974 Caesar applied to this Court for a stay of the District Judge’s May 6th contempt order. The stay was granted on May 10th, and remained in effect until July 2, 1974, when Caesar’s petition for mandamus was denied.

In the District Judge’s memorandum accompanying his May 6th contempt order, he indicated that the Bankruptcy Judge’s turnover orders had become final because Caesar had not filed a petition for review, required by § 39(c) of the Bankruptcy Act, 11 U.S.C. § 67(c). Caesar had filed timely notices of appeal under Rule 801 of the Bankruptcy Rules adopted by the Supreme Court. However, the new Bankruptcy Rules did not apply to Chapter XI proceedings until July 1, 1974. On May 8, 1974 the District Court, without a hearing, granted Winner’s motions to dismiss Caesar’s appeals.

On August 7, 1974, after a hearing on Winner’s motion, the District Court entered an order directing the Clerk to issue execution for $94,000, of which $5,000 was for Caesar’s past contempt as set out in the May 6th order, and $89,000 was for non-compliance with the May 6th order for the 89 days from May 10 through August 6, 1974.

Caesar has appealed to this Court from the three orders of the District Court entered on May 6th, May 8th, and August 7, 1974. The May 6th order adjudged Caesar in contempt for failing to comply with turnover orders of the Bankruptcy Judge, and imposed the three fines hereinbefore stated; the May 8th order dismissed Caesar’s appeals from the turnover orders and from an order denying a stay of the turnover orders; and the August 7th order directed the Clerk to issue execution against Caesar for $94,000, which was the District Court’s computation of contempt fines accumulated through August 6, 1974.

We consider first the question whether the District Court erred in granting, without a hearing, Winner’s motions to dismiss Caesar’s appeals from the turnover orders of the Bankruptcy Judge. The ground for dismissal was that Caesar should have filed petitions for review under § 39(c) of the Bankruptcy Act, 11 U.S.C. § 67(c), instead of notices of appeal. However, if the notices of appeal are treated as petitions for review they did substantially comply with § 39(c), and they were timely filed as provided in that section.

Section 39(c) also provides that a petition for review “shall set forth the order complained of and the alleged errors in respect thereto.” Caesar followed Rule 801 and Form 28 of the new Bankruptcy Rules and Forms. The notices of appeal describe the orders but do not set forth the alleged errors in the orders. Rule 806 of the new Rules provides that the appellant shall file a statement which includes the issues which he intends to present on appeal with the Bankruptcy Judge, and shall serve said statement on the appellee. Caesar filed the statement required by Rule 806 on May 3, 1974. This is substantially the same as setting forth the errors as required by § 39(c).

Rule 806 provides that said statement of issues shall be filed within ten days of the filing of the notice of appeal. The docket entries of the Bankruptcy Court reflect that the notices of appeal were filed oh April 22nd, and the statement was filed on May 3, 1974. The two notices of appeal are dated April 23, 1974. Caesar disputes the accuracy of the April 22d docket entry, claiming that the notices of appeal from the turnover orders were actually filed on April 23d, and Caesar has submitted an affidavit of its counsel to that effect.

Rule 801 provides that failure to take any step other than the timely filing of the notice of appeal does not affect the validity of the appeal.

It is clear that Caesar attempted to comply with the new Bankruptcy Rules in appealing to the District Court, and that under any state of the facts it did comply substantially with those rules.

In the course of the hearing held on January 30, 1974 the Bankruptcy Judge twice indicated that he believed the new Bankruptcy Rules were in effect or were applicable to Chapter XI proceedings.

If Caesar had styled its notices of appeal as petitions for review, supported by the statement of issues, there can be no question but that this would have been substantial compliance with § 39(c). We have therefore a mere misnomer. The notices of appeal should have been treated by the District Court as petitions for review. The fact that the notices of appeal did not set out the alleged errors is immaterial as this was disclosed in the statement of issues. The misnomer did not affect Winner’s substantial rights nor mislead it in any way.

Section 39(c) of the Bankruptcy Act was amended in 1960 to provide that an order of a Referee, now a Bankruptcy Judge, becomes final unless a petition for review is filed within ten days of the entry of the order, or within such extended time as the Court may allow on petition for extension filed within the ten-day period.

The purpose of the bill [was] to fix a definite period of time within which an application for review must be filed. (S.Rep.No.1689, 86th Cong., 2d Sess.; 2 1960 U.S.Code Cong. & Admin.News, at 3194-3195).

Since the amendment Courts have insisted on strict compliance with the time limitations in § 39(c) of the Bankruptcy Act. In the Matter of Paul E. Enyart, 509 F.2d 1058 (6th Cir. 1975); In Re Charmar Investment Co., 475 F.2d 560, 564 (6th Cir. 1973), cert. denied, 414 U.S. 823, 94 S.Ct. 123, 38 L.Ed.2d 56.

The amendment, however, was not intended to and did not militate against the rule which recognizes that “the scope of the court review is not necessarily fixed by the petition, nor confined to issues presented before the referee.” Rosehedge Corp. v. Sterett, 274 F.2d 786, 790 (9th Cir. 1960).

The statement of issues, filed on May 3, 1974, indicates the questions to be decided by the District Judge. It could serve as the alleged errors required by § 39(c). The District Judge could even permit an amendment of the statement if it becomes necessary.

In our opinion the District Court erred in granting the motion of Winner to dismiss Caesar’s appeals. Since Caesar filed a $200,000 surety bond, the District Court should have granted a stay.

The contempt orders of the District Court were necessarily based upon the validity of the turnover orders of the Bankruptcy Judge.' These orders had not become final because appeals had been prosecuted therefrom to the District Court and a supersedeas bond had been filed. We have held that these appeals were improperly dismissed.

The contempt orders were invalid for other reasons, which we will detail.

The District Court’s May 6th order imposed a $5,000-fine, payable to Winner, for the past contempt of the March 26th and April 17, 1974 orders. Ordinarily such a fine must not exceed the actual damage to the complainant caused by violation of the decree plus the complainant’s reasonable expenses in presenting the contempt to the Court. Clark v. Boynton, 362 F.2d 992, 998 (5th Cir. 1966); Parker v. United States, 153 F.2d 66 (1st Cir. 1946).

In United States v. United Mine Workers, 330 U.S. 258, 304, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947), it was held:

Such fine must of course be based upon evidence of complainant’s actual loss .

There is no evidence in the record of damage to Winner caused by Caesar’s failure to comply with the Bankruptcy Judge’s orders. The $5,000 fine did not purport to be, and is not, a reasonable amount for presenting this contempt to the Court.

The District Court also ordered that the $1,000 per day coercive fines be paid to Winner, and issued execution for the fines accumulated through August 6, 1974. It would make little sense to insist that fines for past contempt payable to the complainant be strictly based on evidence of actual damage^ but to allow coercive fines, which are not calculated solely on the basis of the damage that violation of the decree would cause, to be paid to the private party. Contempt awards to private complainants are to be compensatory. Moskovitz, Contempt of Injunctions, Civil and Criminal, 43 Colum.L.Rev. 781, 806 (1943).

Coercive civil contempt fines in federal courts are ordinarily paid to the United States. See, e. g., Woods v. O’Brien, 78 F.Supp. 221 (D.Mass., 1948).

Sunbeam Corp. v. Golden Rule Appliance Co., 252 F.2d 467 (2d Cir. 1958), is authority to the contrary. In Sunbeam, the Second Circuit relied on United States v. United Mine Workers, supra. The position of the United States in United Mine Workers was that of Government and also complainant. We do not believe that United States v. United Mine Workers is authority for the proposition that coercive contempt fines are properly ordered paid to a private party.

Furthermore, under the provisions of the factoring agreement Caesar had discretion to withhold payment of credit balances as a reserve against claims. In our opinion this reserve could not be invaded by the debtor unless there was present not only an abuse of discretion but also bad faith on the part of Caesar. The proof in this case does not establish either that Caesar abused its discretion or acted in bad faith. The finding of the Bankruptcy Court that the proof in respect to this issue was within the exclusive possession and control of Caesar is not supported by the evidence and is clearly erroneous.

In its brief Caesar states that since March 26th it has paid $250,000 of the credit balance to Winner, and that less than $30,000 in credit balances are now subject to dispute before the Bankruptcy Judge.

If the accounting has not already been made, the Bankruptcy Judge can complete it upon remand, and can determine whether any sums are due to either of the parties, and can render judgment accordingly.

In view of our disposition of these appeals, other errors complained of need not be considered.

The turnover orders and judgments rendered against Caesar and the contempt convictions are reversed and the cause is remanded to the District Court to dismiss the contempt charges and to complete the accounting between the parties and to render judgment accordingly.

Reversed and remanded.

      . The District Judge, in one of the hearings, expressed similar views. He stated:
      But 1 want to give — I want to give everybody a chance to advise the Court of any authority under the new rules of procedure and bankruptcy. We are all new with those, because we have all used the old certification practice before, and we are having to feel our way along, but I’m under the impression that the same rules apply in the appeals from the Bankruptcy Court to the District Court that apply from the District Court to the Court of Appeals, and that’s the basis on which I’m going to approach this problem, unless you can show me something to the contrary. (A. 234)