author: ROSS, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Carlee BROWN, Appellant.
    No. 73-1135.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 13, 1973.
    Decided Aug. 8, 1973.

      John A. Blumenfeld, Clayton, Mo., and Paul R. Ferber, Hazelwood, Mo., for appellant.
    James E. Reeves, U. S. Atty., and Jerry J. Murphy, Asst. U. S. Atty., St. Louis, Mo., and Frederick J. Dana, Sp. Atty., Dept, of Justice, Office for Drug Abuse Law Enforcement, St. Louis, Mo., for appellee.
    Before GIBSON, LAY and ROSS, Circuit Judges.
   ROSS, Circuit Judge.

The appellant, Carlee Brown, was indicted, tried, and found guilty of two counts of knowing and intentional distribution of heroin in violation of 21 U.S. C. § 841(a)(1). We affirm the judgment of conviction.

The two sales, which were the grounds for the conviction, were made to Charles Bullock,, an individual cooperating with the St. Louis Office for Drug Abuse Law Enforcement (DALE) on two consecutive days. On each occasion, Bullock was searched at the DALE office before the purchase was to take place, given Government funds, driven by a DALE officer to a designated site, and observed while an apparent purchase was transacted. Immediately after the exchanges between Bullock and Brown, Bullock returned to the DALE officer’s automobile and handed him three tinfoil packages which the officer later examined, field tested, weighed, sealed and mailed to the Bureau of Narcotics and Dangerous Drugs (BNDD) Regional Laboratory in Chicago, Illinois. The testimony of both Bullock and the DALE officer was substantially corroborated by other surveilling DALE officers.

At trial a BNDD chemist testified to the procedures he followed in determining the contents of the packages he received as a result of the purchases by Bullock. The tests on the two packages were conducted independently and at different times, and each package was found to contain heroin.

On appeal, Brown raises four arguments dealing with: 1) the admission of the heroin packages into evidence; 2) the scope of redirect examination permitted the Government in the examination of a witness; 3) the scope of cross-examination permitted the appellant in the examination of a witness; and 4) the adequacy of the jury instructions.

I.

Brown contends that the chain of custody of the heroin packages was not adequately established so as to permit the introduction of the Government exhibits into evidence. He bases this contention upon the fact that the quantitative and qualitative tests, which consumed approximately one and one-half 'hours, were conducted over a forty-eight hour period. Brown urges this position despite the testimony elicited from the Government’s expert as to the precision and detail of the laboratory procedures employed, the religious recordation thereof, and the customary laboratory security that attends analysis of substances submitted to BNDD.

The criteria governing admission of exhibits into evidence is that there must be a showing that the physical exhibit being offered is in substantially the same condition as when the crime was committed. That determination is to be made by the trial judge, not the jury, and may not be overturned except for a clear abuse of discretion. Factors to be considered in making the determination of admissibility include the nature of the article, the circumstances surrounding its preservation and custody, and the likelihood of others tampering with it. If upon the consideration of such factors, the trial judge is satisfied that in reasonable probability the article has not been changed in any important respect, he may permit its introduction in evidence. Brewer v. United States, 353 F.2d 260, 262 (8th Cir. 1965) adopting Gallego v. United States, 276 F.2d 914, 917 (9th Cir. 1960); United States v. S. B. Penick & Co., 136 F.2d 413, 415 (2nd Cir. 1943).

Brewer further explicates that in the absence of any evidence. to the contrary, the trial judge is entitled to assume that an official would not tamper with the exhibits or their contents:

“. . . Where no evidence indicating otherwise is produced, the presumption of regularity supports the official acts of public officers, and courts presume that they have properly discharged their official duties.” Brewer v. United States, supra, 353 F.2d at 263.

Here, the evidence adequately establishes the chain of custody, and the likelihood of any intermeddling with these exhibits was extremely remote. There was no evidence that any tampering with the exhibits was present, and the trial judge certainly did not abuse his discretion in admitting the evidence.

II.

Brown also contends that upon redirect examination of one of the surveying DALE officers, the Government was permitted to elicit testimony which tended to implicate Brown in prior sales of narcotics. It is his contention that such testimony was irrelevant and constitutes reversible error. However, the substance of the testimony which is the subject of this argument does not contain any allegations of prior narcotics sales by Brown. Rather the inquiries centered upon the witness’ knowledge of the traffic in a general area and general habits of narcotics dealers.

The questioning by the Government was in direct response to the inquiries of Brown’s counsel upon cross-examination. During that cross-examination, Brown’s counsel asked the DALE officer pointed and limited questions concerning his knowledge of that general area and his knowledge of the general habits of narcotics dealers in leaving drugs outside their control. The obvious intent of that line of questioning was to impair the credibility of the DALE officer’s testimony by suggesting that his recital of the factual circumstances on the day of the crime was incorrect. The questions asked by the Government on redirect examination simply dealt further with the witness’ knowledge of the area and the habits of narcotics dealers. This was clearly within the permissible scope of redirect examination.

III.

Brown asserts that he was unduly restricted in his cross-examination of the informant regarding the informant’s previous attempts to purchase heroin. It is his contention that, had he been permitted to elicit that testimony, he could better have impugned the credibility of the Government witness.

A trial court is vested with a broad discretion in controlling the scope of cross-examination. Only when there is a clear abuse of that discretion and an adequate showing of prejudice will its rulings be overturned. United States v. Cole, 449 F.2d 194, 199 (8th Cir. 1971), cert. denied, 405 U.S. 931, 92 S.Ct. 987, 30 L.Ed.2d 806 (1972).

In the instant case, it is doubtful whether the line of questioning sought to be undertaken would have impeached the credibility of the witness. Yet, even conceding the relevance of the proposed inquiries to the witness’ credibility, the failure to permit them during cross-examination did not produce any prejudice. First, Brown had already elicited responses to most of the questions. Secondly, he was otherwise allowed to test the credibility of the witness at length. In addition, even if the credibility of the witness was impugned, the Government’s case in chief did not rest upon the credibility, of this witness alone. The record contains substantial corroboration from four other witnesses as to all material aspects of the crime.

In light of the facts previously enunciated, the trial court’s refusal to permit cross-examination on the subject of previous purchases by the informant does not constitute an abuse of discretion.

IV.

Finally, Brown charges that the trial court erred in its instructions to the jury since it failed to require a finding that the defendant knew the substance was, in fact, heroin and because it failed to bring to the attention of the jury the proviso in the definition of the crime which makes legal distribution of heroin a defense to the crime.

The instructions to the jury given by the trial judge recited the requisites for a conviction under 21 U.S.C. § 841(a)(1) as defined by statute, including the requirement that the distribution be done “knowingly and intentionally.” The import to the jury was clear that the Government had to prove that Brown sold the heroin knowing what it was. The failure of the trial court to define “knowingly” was at most nonprejudicial error.

The instruction excluded any reference to the provision that exempts from the terms of the statute the legal distribution of heroin. McKelvey v. United States, 260 U.S. 353, 357, 43 S.Ct. 132, 134, 67 L.Ed. 301 (1922) clearly indicates that such an instruction is proper. Therein the Court said:

“. . . By repeated decisions it has come to be a settled rule in this jurisdiction that an indictment or other pleading founded on a general provision defining the elements of an offense . .' . need not negative the matter of an exception made by a proviso or other distinct clause and that it is incumbent upon one who relies on such an exception to set it up and establish it.”

See also United States v. Young, 422 F.2d 302, 306 (8th Cir.), cert. denied, 398 U.S. 914, 90 S.Ct. 1718, 26 L.Ed.2d 78 (1970).

Moreover, under 21 U.S.C. § 885(a)(1), . . the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person ‘claiming its benefit.” Brown did not offer any evidence whatsoever. Thus, it was proper for the trial judge to exclude its terms from the definition of the crime charged.

The judgment of conviction is affirmed.

      . A similar instruction was held sufficient in United States v. Irby, 480 F.2d 1101 (8th Cir. 1973).


source: Caselaw Access Project

author: THORNBERRY, Circuit Judge:

license: Public Domain

text:
    Marilyn WHATLEY and Carol Gerber, Plaintiffs-Appellees, v. T. J. CLARK, etc., et al., Defendants-Appellants, Emma Maria Garza et al., Intervenors.
    No. 73-1057.
    United States Court of Appeals, Fifth Circuit.
    Aug. 3, 1973.
    Rehearing Denied Aug. 29, 1973.

      Sam L. Jones, Jr., Asst. Atty. Gen. of Texas, Austin, Tex., for the State.
    John E. Lawhon, County Atty., Den-ton, Tex., for Lasater.
    Norris W. Yates, Jr., Asst. Dist. Atty., San Antonio, Tex., for Davis.
    Tom P. Senff, Nacogdoches, Tex., for Clark.
    James A. Brady, Doren R. Eskew, Austin, Tex., amicus curiae.
    David R. Richards, Austin, Tex., William H. Kugle, Jr., Athens, Tex., for plaintiffs-appellees.
    Frank T. Ivy, Austin, Tex., for inter-venors.
    Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
   THORNBERRY, Circuit Judge:

A Texas statute provides that “a student in a school, college, or university” shall not be considered to have acquired a voting residence at the place where he lives while attending school “unless he intends to remain there and to make that place his home indefinitely after he ceases to be a student.” Tex.Election Code art. 5.08(k), V.A.T.S. Whether this provision infringes rights guaranteed by the Equal Protection Clause of the Fourteenth Amendment, is the primary issue before us in this appeal.

Appellee Dennis Green, a student at North Texas State University in Denton County, Texas, made application to appellant George Lasater, Denton County Assessor and Collector of Taxes, to register to vote in Denton County. Pursuant to Article 5.08 (k), swpra, Lasater asked Green whether he intended to make his home in Denton County indefinitely after he ceased to be a student. Green replied that he had no such intentions, and Lasater refused to register him. On behalf of himself and all others similarly situated, Green brought suit in the court below seeking a declaration that Article 5.08 (k) is constitutionally invalid. The court below held that the suit was properly maintainable as a class action, and declared Article 5.08 (k) invalid under the Equal Protection Clause. We affirm the judgment below.

Before reaching the merits, we must dispose of two procedural points raised by appellants. First, it is argued that the court below erroneously- denied appellants’ request to convene a three-judge court. As noted above, however, supra note 3, appellees sought only declaratory relief with regard to Article 5.08(k). Under such circumstances, the court below correctly denied the request to convene a three-judge court. Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970). Secondly, appellants argue that the instant suit cannot be properly maintained as a class action. Appellants point out that a determination of the voting residence of each member of the class will entail the resolution of questions of fact peculiar to each member. Appellees, however, were not seeking a declaration that each member of the class satisfied the voting residence requirements; rather they sought only a declaration that Article 5.08 (k) is unconstitutional. The issue thus presented is amenable to resolution in a class action. See Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). We turn, therefore, to the merits.

At the outset, we must call attention to what is not at issue here. Texas has unquestioned power to restrict the franchise to bona fide residents. Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965). Indeed, such a restriction “may be necessary to preserve the basic conception of a political community. . . .” Dunn, supra, 92 S.Ct. at 1004. At the same time, however, .if residence requirements are to withstand constitutional scrutiny, they must be “appropriately defined and uniformly applied.” Id. The issue in the instant ease, therefore, is simply whether Article 5.08 (k) represents a proper exercise of the State’s power to impose reasonable residence requirements upon the right to vote.

Appellants suggest that there is little, if any, substantive difference between the residence requirements imposed upon students by Article 5.08(k) and the general standards applicable to other prospective voters. Subsection (a) of Article 5.08 provides that, for voting purposes, “residence” shall mean “domi-die,” and defines domicile as “one’s home and fixed place of habitation to which he intends to return after any temporary absence.” Further, subsection (b) of the same statute requires that residence “be determined [by] the common law rules as enunciated by the courts of this state,” unless those rules are in conflict with the statute. Texas courts hold that a necessary element of domicile is a “freely exercised intention of remaining [at a place] permanently or for an indefinite time” [emphasis added]. Harrison v. Chesshir, 316 S.W.2d 909 (Tex.Civ.App.—Amarillo 1958); rev’d on other grounds, 159 Tex. 359, 320 S.W.2d 814 (1959). See also Snyder v. Pitts, 150 Tex. 407, 241 S.W.2d 136 (1951); Wilson v. Wilson, 189 S.W.2d 212 (Tex.Civ.App.—Ft. Worth 1945); Stone v. Phillips, 171 S.W.2d 156 (Tex.Civ.App.—Amarillo 1943), aff’d, 142 Tex. 216, 176 S.W.2d 932 (1944). For the purposes of this appeal, we assume without deciding that the same definition of domicile is applied to both students and other prospective voters.

It does not follow, however, that because Article 5.08 (k) applies the same substantive standard to students as is applied to other prospective voters, the statute does not create a distinct class, for purposes of equal protection analysis. If subsection (k) merely restates the rules applicable to other voters, one may well wonder why it exists separately and, indeed, why the requirement of intent to rémain in the college community indefinitely after graduation, was added by amendment in 1967. Acts 1967, 60th Leg., p. 1879, ch. 873, § 21, effective August 28, 1967. The answer is apparent. Although it may apply the same substantive standard that applies to other voters, subsection (k) applies it to students in a different way. By its terms it creates a presumption that students are not domiciliaries of the places they live while attending school. Of course, the presumption is rebuttable; but unless a student carries the burden of persuading the voter registrar that he is in fact a domiciliary of the place where he resides for the better part of each year, he is not permitted to vote there and is consequently denied an opportunity to participate in elections which may have considerably more impact on his life than do those in the area where he resided before becoming a student. Other prospective voters, on the other hand, are not subject to this presumption of nonresidency or to the attendant burden of overcoming it.

The right to vote is a fundamental right preservative of other basic rights. Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964). A state statute that restricts the exercise of such a fundamental right is invalid under the Equal Protection Clause, unless it can be shown that the burden imposed is necessary to promote a compelling state interest. Dunn, supra; Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1972).

Appellants, however, contend that no such showing is necessary in the instant case, because in their view the Supreme Court approved this rebuttable presumption of nonresidency in Carrington, supra. There the Court invalidated a provision of the Texas Constitution that absolutely prohibited nonresident servicemen who had moved to Texas from ever acquiring a voting residence in the state for the duration of their military service. The Court observed that only members of the armed forces were subject to a conclusive presumption of nonresiden-cy, although other groups — such as students and inmates of public institutions (citing an earlier version of Article 5.-08) — which presented “specialized problems in determining residence,” were “given at least an opportunity to show the election officials that they are bona fide residents.” 380 U.S. at 95, 85 S.Ct. at 779-780. Relying on this observation, appellants argue that Carrington approved the instant treatment of students as presumptive nonresidents because the Texas presumption of nonresi-deney is rebuttable, giving students “at least an opportunity” to establish their claims of domicile.

This position reflects a misunderstanding of Carrington. First, because the requirement of intent to remain in the college community indefinitely did not become a part of Article 5.08(k) until two years after Carrington was decided, nothing in Carrington can be taken as expressly approving the statute in its present form. Secondly, and more importantly, the instant case presents an altogether different question from that in Carrington. Here, at issue is the validity of a scheme whereby some prospective voters are subject to a rebut-table presumption of nonresidency, while others are subject to no such presumption. Carrington, on the other hand, involved a challenge to a scheme whereby one group was conclusively disenfranchised, while all other prospective voters were given “at least an opportunity” to establish their claims of residence. That some members of the favored group were subject to rebuttable presumptions of nonresidency while other members of the favored group were not, was immaterial to the question in Car-rington. Rather, the determining factor there was the conclusiveness of the presumption with regard to servicemen. 380 U.S. at 96, 85 S.Ct. at 780. The Court in Carrington did not purport to evaluate the distinctions that Texas had made as between members of the favored class; its reference to the “opportunity” given to students (and other groups that presented “specialized problems in determining residence”) to prove their claims of residence should be seen only in contrast to the total disenfranchisement of servicemen, not as tacit approval of a rebuttable presumption of nonresideney as applied to students. It is our view that Carrington does not foreclose a challenge to the instant statute; therefore we turn to the question whether Article 5.08 (k) is necessary to promote a compelling state interest.

Appellants suggest only that the statute “preserve [s] the purity of the ballot,” an interest expressed in Article 6, § 4 of the Texas Constitution Vernon’s Ann.St. While, as we have pointed out above, Texas has a legitimate interest in limiting the franchise to-bona fide residents and in guarding against fraudulent evasions of valid residence requirements, we find it difficult to believe that a presumption that students are not residents of their college communities is necessary to promote those goals. As the Supreme Court recognized in Dunn, supra, a voter registration system based on reasonable dura-tional residency requirements adequately protects the state’s interest in the “purity of the ballot.” 92 S.Ct. at 1005. Indeed, one of the original named defendants in the instant suit, former Texas Secretary of State Robert Bullock, testifying as the state’s chief election officer, stated unequivocally that Article 5.-08 (k) created a “special classification” that served no purpose other than to discourage students from voting. In short, appellants have not demonstrated that treating persons as presumptive nonresidents simply because they are students is necessary to promote any compelling state interest. Accordingly, the judgment of the court below is affirmed.

      . With the exception of persons in the military service of the United States, Tex.Election Code art. 5.08 (j), Texas does not expressly apply this rule to any group other than students. The validity of the rule as applied to members of the armed forces is not before us on this appeal, and we intimate no view as to its validity as applied to servicemen.

      . The court below held that Green represented a class that included “students who consider their community their home but whose present intentions for the future either are unclear or are not definite enough to reflect plans to move to another community after graduation.”

      . In the instant case we review only this declaratory judgment, although the case originated as a request for both declaratory and injunctive relief against Article 5.08 (k) and another provision of the Texas Election Code governing durational residency requirements. The original complaint was later amended to include appellee Green’s request solely for declaratory relief with regard to Article 5.08 (k), and a separate trial was ordered as to his claims.

      . Moreover, the instant case does not squarely present a challenge to the manner in which Texas defines residence for voting purposes, and this opinion is therefore not to be interpreted as adjudicating the validity of Texas’ substantive rules for determining voting residence. We recognize, however, that at least two three-judge district courts have held similar definitions of voting residence to be unconstitutional. See Ramey v. Rockefeller, E.D.N.Y.1972, 348 F.Supp. 780; Newburger v. Peterson, D.N.H.1972, 344 F.Supp. 559.

      . Appellants urge this court to abstain, pending a construction of Article 5.08 (k) by the Texas courts. In appellants’ view, the word “indefinite” is ambiguous, meaning either “permanent” or “subject to change at any time.” From the Texas cases cited above, however, it appears that the Texas courts use “indefinite” and “permanent” interchangeably in this context. Thus, the meaning of Article 5.08 (k) seems tolerably clear: before a student may vote at the place where he lives while attending school, he must have a present intention of remaining there “permanently” after he ceases to be a student.

      . Although there is a wide variance in the quantum of proof demanded of students by voter registrars, the required showing can be quite extensive, as illustrated by the following inquiries taken from a questionnaire administered to students by the Waller County, Texas registrar:
      Do you intend to reside in Waller County indefinitely? How long have you considered yourself to be a bona fide resident of Waller County? What do you plan to do when you finish your college education? Do you have a job or position in Waller County? Own any home or other property in Waller County? Have an automobile registered in Waller County? Have a telephone listed in Waller County? Belong to a church, club, or some Waller County organization other than college related?

        See Wilson v. Symm, 341 F.Supp. 8 at 11 n. 2 S.D.Tex.1972.

      . Pursuant to Article 5.21 of the Texas Election Code, if the registrar “has reason to believe” that an applicant has made a false statement on an application for voter registration, the registrar “shall require proof of such statement.” Since this requirement of proof arises only when the registrar has reason to doubt a statement on the application, it cannot be said that Article 5.21 imposes a burden of proving domicile upon all prospective voters.


author: BY THE COURT:

text:
    Catherine Ann MILLER, a Minor, etc., et al., Plaintiffs-Appellants, United States of America, Intervenor, v. The BOARD OF EDUCATION OF GADSDEN, ALABAMA et al., Defendants-Appellees.
    Nos. 72-2582, 72-3274.
    United States Court of Appeals, Fifth. Circuit.
    Aug. 7, 1973.

      U. W. Clemon, Birmingham, Ala., Johnny J. Butler, Norman Chachkin, Jack Greenberg, James M. Nabrit, III, New York City, Osear W. Adams, Jr., Birmingham, Ala., Perry T. Christison, Andrew J. Ruzicho, Civil Rights, Dept, of Justice, Washington, D. C., Wayman Sherrer, U. S. Atty., Birmingham, Ala., for plaintiffs-appellants.
    Robert H. King, Gadsden, Ala., for def endants-appellees.
    Before JOHN R. BROWN, Chief Judge, INGRAHAM and RONEY, Circuit Judges.
   BY THE COURT:

These cases are two of a spate of appeals occasioned by the decision of the Supreme Court, in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). The present focus of our concern is the Board of Education of Gadsden, Alabama. The Gadsden district has been under court order since at least December 1963. In March of 1972 plaintiffs-appellants filed a motion for further relief, requesting the district court to implement a new student assignment plan in conformity with the Court’s decision in Swann.

The district court required the school board to produce such a plan, which it did composed of two parts. In the long run the school board proposed to end segregation by its construction of several educational miniparks. In the short term it proposed to alter school attendance zones so as to provide some quantum of desegregation. The district court approved this plan for the elementary schools. Plaintiffs have appealed.

The issues in the school desegregation portion of these appeals have devolved to a single question: May a school board, with judicial approval based on the school board’s promise to end the dual system within three to five years by constructing three new system-wide elementary schools or elementary educational mini-parks, adopt a plan of desegregation which leaves fourteen of nineteen elementary schools with the “racial identities they had developed under the dual system, ten schools being 90-100% white, and four 90-100% black”? (Findings of fact of the district court.)

While we wholeheartedly approve of the innovative concepts of educational parks, which in the long run will indeed end the question of black schools or white schools leaving a system with “just” schools, the laudatory purpose cannot freeze half a decade of education into a dual system’s mold. The haltingly slow days of all deliberate speed have given way to the mandated duty to immediately desegregate. Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969); Carter v. West Feliciana Parish School Board, 396 U.S. 226, 90 S.Ct. 467, 24 L.Ed.2d 382 (1970); Swann v. Charlotte-Mecklenburg Board of Education, supra. The district court, in adopting the board’s amended interim plan, has adopted a plan which rejects pairing or clustering of the central city elementary schools in favor of the promised Valhalla of educational parks. Swann requires that we remand this case for immediate implementation of a plan which further desegregates the Gadsden elementary schools. See United States v. Texas Education Agency (Austin Independent School District), 467 F.2d 848 (5th Cir., 1972) (en banc). The case must be reversed and remanded to the district court for further proceedings consistent with the remedy directed in Cisneros v. Corpus Christi Independent School District, 467 F.2d 142 (5th Cir., 1972) (en banc).

Two additional issues are raised in these appeals. The first is whether the district court erred in not granting some monetary relief to Assistant Superintendent of Schools Shaw, who had been a principal in the Gadsden school system and who lost his principalship by desegregatory consolidation when the Gadsden School Board unjustifiably refused to tender a principalship to him on racial grounds. The district court properly held that the school board need not now tender a principalship to Shaw, for Shaw, it found, was satisfied with his new position of Assistant Superintendent of Schools:

“Attached to the evaluation of July 31, 1972, is a letter from H. L. Shaw, in which he states he is satisfied in his present position as Assistant Superintendent of .Education of the Gadsden school system. In the hearing on August 27, 1972, he stated he was willing to keep his job if the anticipated raise in salary became effective. At the time Mr. Shaw took the assignment as superintendent his salary was raised $3000.00 per year and was greater than that of any principal’s in the system. Subsequent to that time the high school principals’ salaries were raised. The court assumes that the projected raise for the assistant superintendent’s position has been placed into effect, and in view of Mr. Shaw’s expression of satisfaction with his present position, the court finds that he is not entitled to further relief.”

The district court erred in its application of the Singleton [Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir., 1970) (en banc)] standard in failing to guarantee that Shaw be placed in a position monetarily equivalent to that which he would have held but for the racial discrimination practiced against him. Lee v. Macon County Board of Education, 453 F.2d 1104, 1105 (5th Cir. 1971); Sparks v. Griffin, 460 F.2d 433 (5th Cir., 1972).

Appellants further ask this court to award them costs and attorneys’ fees for this appeal pursuant to § 718 of the Education Amendments of 1972, P.L. 92-318. We deem appellants’ prayer an appropriate subject for the district court’s consideration on remand and particularly direct the district court to our opinion in Johnson v. Combs, 471 F.2d 84 (5th Cir., 1972).

The judgment of t'he district court is remanded for further proceedings not inconsistent herewith. No. 72-2582 contesting the disposition of a particular school building is consequently moot.

      . See Northcross v. Memphis Board of Education, 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973) [41 LW 3635, June 4, 1973].


author: VAN DUSEN, Circuit Judge.

text:
    Len J. DILLON et al., Appellants, v. F. Steven BERG et al. (three cases). Appeal of F. Steven BERG et al. Appeal of SCOTTEN, DILLON COMPANY. Len J. DILLON and Fred R. Davis, Appellants, v. SCOTTEN, DILLON COMPANY et al. Len J. DILLON and Fred R. Davis v. SCOTTEN, DILLON COMPANY, Appellant in No. 73-1139, et al. (two cases). Appeal of William M. PRIFTI and S. Geyer Bean.
    Nos. 73-1135 to 73-1140.
    United States Court of Appeals, Third Circuit.
    Argued June 21, 1973.
    Decided Aug. 8, 1973.
    David T. Dana, III, Richards, Layton & Finger, Wilmington, Del., for Len J. Dillon, Harold Gray and Fred R. Davis.
    Jack B. Jacobs, Bruce M. Stargatt, Young, Conaway, Stargatt & Taylor, Wilmington, Del., for F. Steven Berg, William Lerner, George K. Bissell, Ernest Summers, William M. Prifti and S. Geyer Bean.
    Arthur G. Connolly, J’r,, Connolly, Bove & Lodge, Wilmington, Del., for Scotten, Dillon Co.
    Before VAN DUSEN, ALDISERT and ADAMS, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

Plaintiffs, who shall be referred to as the Dillon faction, and defendants, the Berg faction, both appeal from the district court order of November 29, 1972 awarding counsel fees to plaintiffs. As explained in the district court’s opinion, reported at 351 F.Supp. 584 (D.Del. 1972), the district court awarded to plaintiffs a portion of the amount they had requested as reasonable attorneys’ fees for the prosecution of two earlier lawsuits, Dillon v. Berg, 326 F.Supp. 1214 (D.Del.), aff’d, 453 F.2d 876 (3rd Cir. 1971), and Dillon v. Scotten, Dillon Co., 335 F.Supp. 566 (D.Del.1971). We are reluctant to disturb the award of the district court, especially since, having sat on the two earlier cases, it was in an excellent position to evaluate the lawyers’ services. We have, however, concluded that the district court erred in failing to make a specific finding whether the fees claimed were reasonable, possibly because of an inadequate record.

Because the proceedings in the two earlier cases were extensively set out in the decisions just referred to and were summarized in the district court opinion in this ease, it is unnecessary now to go into a detailed discussion of the background facts. Briefly, the Dillon faction has been battling with the Berg faction for control of Scotten, Dillon Co. In Dillon v. Berg, 326 F.Supp. 1214, the Dillon faction was successful in establishing that proxy materials sent out by the Berg faction in the name of the company contained numerous material misstatements. The principal misstatements derived from the invalidity of the removal of one Powers from Scotten, Dillon’s board of directors and of his replacement by one Summers. The court held that the proxy materials were in violation of section 14(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78n(a) (1970), and Rules 14a-3 and 14a-9, 17 C.F.R. § 240.14a-3, 240.14a-9 (1972). To remedy these violations the court declared that the 1970 Annual Stockholders’ Meeting held in August 1970 was illegal and ordered that a new meeting be convened.

In Dillon v. Scotten, Dillon Co., D.C., 335 F.Supp. 566, the Dillon faction was again successful in proving proxy solicitation materials to be misleading. This time success came easily. The materials in question were prepared for the 1971 meeting and had been sent out prior to the decision in Dillon v. Berg, supra. The falsity of the major misstatements —once again, the precise membership of the board of directors — was a direct consequence of that decision. The court did not declare illegal the entire 1971 meeting, but did void the purported election at that meeting of two persons to the board.

The Dillon faction based its request for attorneys’ fees on Mills v. Electric Auto-Lite, 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). In Mills, the Court held that when a plaintiff proves that proxy materials violated the federal securities laws, he confers a substantial benefit on all shareholders and that therefore all shareholders, through the corporation, should bear the legal expense he has incurred. See 396 U.S. at 389-397. Having established such violations here, the Dillon faction submitted a request for attorneys’ fees of $250,000.00 and out-of-pocket expenses of $7,714.66. According to their complaint, their two law firms together worked for about 1,760 hours on Dillon v. Berg and about 100 hours on Dillon v. Scotten, Dillon Co.; they ask for $200,000. for the former case and $50,000. for the latter. App. 136-38. Supporting affidavits of members of the two firms verify the total time figures and enumerate the various activities at which time was spent, but fail to state how much time was spent at such various activities and by whom. App. 139-62.

Without making a specific finding as to the reasonability of the amounts requested, the district court proceeded to multiply them by 10% to represent that part of the lawyers’ efforts that benefited the shareholders generally, stating that 90% of the legal services were for the sole benefit of the Dillon faction. Hence, the court made its final award of $25,000. attorneys’ fees and $771.46 expenses.

Since the case must be remanded to the district court in order that it may make a finding on an adequate record of the amount of the fee claimed by the Dillon faction which is reasonable, we point out that the district court determination should be made in light of the recent decision of the Supreme Court of the United States in Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973). In Hall, the Court affirmed the award of counsel fees to a union member who vindicated the rights guaranteed him in the “Bill of Rights of Members of Labor Organizations,” Title I of Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 411(a)(2) (1970). Two aspects of Hall are relevant here. First, the Supreme Court held that the district court properly exercised its discretion by considering the state of the defendant union’s treasury. See 93 S.Ct. 1943. This supports an action by the district court which we find was eminently reasonable, namely, the taking into account of Scot-ten, Dillon’s financial condition.

Secondly, the Supreme Court rejected the proposition that the award of counsel fees should be diminished because the union member was motivated by ambitions for political office in the union. As support, the Supreme Court cited the factually similar (to Hall) case of Ya-blonski v. UMW, 151 U.S.App.D.C. 253, 466 F.2d 424, 430-431 (1972). We find the Yablonski court’s language at pages 430-431 particularly lucid:

“We turn, then, to the merits of the District Court’s observation that the Yablonski lawsuits did not benefit anyone except Yablonski. Preliminarily we remark that it is not enough to say, as did the District Court, that a ‘primary purpose’ of the lawsuits was to facilitate Yablonski’s candidacy. It is obvious that in virtually all litigation of this character, in the labor field or out, a plaintiff pursues his own interest as well as that of others. The relevant question is whether or not the trouble he takes results in the actual conferring of benefits on others than himself.”

The same rationale applies here. The benefits of the two lawsuits to the Dillon faction and to all the shareholders were not necessarily mutually exclusive.

After careful consideration, we have concluded that the present record is inadequate to permit determination of whether the total fees claimed were reasonable for the legal work done on the two civil actions mentioned above, and that the district court, also, has the right to reconsider the reduction of such fees by percentage or otherwise in the light of the Hall case, supra. The district court order of November 29, 1972, will be vacated and the case remanded for further proceedings consistent with this opinion. Each party is to bear its own costs.

      . Plaintiffs also appeal from tlie district court’s failure to award various sums of money to certain non-parties whose services were employed during the reconvening of an annual meeting (351 F.Supp. at 588). Plaintiffs’ arguments on this issue are without merit.

      . Plaintiffs also requested $29,940.50 for purposes indicated in note 1, supra.

      . In an order of December 18, 1972, the district court denied a motion by the Berg faction for reargument on the grounds that the original figure of $250,000. was unreasonable. This action unfortunately leaves unclear whether the district court believed the original figure to have been reasonable, believed the ultimate figure of $25,000. to be reasonable, or based its decision on other grounds.

      . We of course express no views at this time as to whether the ultimate award should be greater than, equal to, or less than the present award of $25,000.

      . We are unable to determine from the record if the district court properly considered whether counsel’s time was spent entirely on advising the Dillon faction about the conduct of two earlier lawsuits or whether part of the time was actually devoted to other aspects of the fight for control.

      . The factors to be considered in evaluating the reasonableness of fees in such cases have recently been stated in Galdi v. Berg, 359 F.Supp. 698 (D.Del., 1973). See also In re Imperial “400” National, Inc., 432 F.2d 232, 239 (3d Cir. 1970); In re Hardwick & Magee Co., 355 F.Supp. 58 (E.D.Pa.1973). Cf. Restatement (Second), Trusts, § 188, comments C and F. As Judge Adams pointed out in Kahan v. Rosenstiel, 424 F.2d 161, 174-175 n. 16 (3d Cir. 1970), it is essential in such a ease for the district court to consider the amount of time and effort expended by the plaintiff in achieving success in the above-mentioned litigation.

      . In 1970 Scotten, Dillon lost $900,000.; in 1971 it made a profit of only $79,000.

      . The court had immediately before this passage discussed Milis v. Electric Auto-Lite.


author: JAMESON, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Walter Eugene IRION, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Evan LYON, Defendant-Appellant.
    Nos. 72-2595, 72-2596.
    United States Court of Appeals, Ninth Circuit.-
    July 26, 1973.
    Certiorari Denied Nov. 12, 1973.
    See 94 S.Ct. 454.

      Charles M. Sevilla (argued), Federal Public Defender, San Diego, Cal., for defendants-appellants.
    Jeffrey F. Arbetman, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty., San Diego, Cal., for plaintiff-ap-pellee.
    Before BROWNING and CARTER, Circuit Judges, and JAMESON, District Judge.

       Honorable W. J. Jameson, United States Senior District Judge for the District of Montana, sitting by designation.

   JAMESON, District Judge:

Appellants were convicted in a non-jury trial of importation of a controlled substance (100 pounds of marihuana) in violation of 21 U.S.C. §§ 952, 960 and 963, and of possession with intent to distribute in violation of 21 U.S.C. § 841(a)(1).

Appellant Irion contends that (1) evidence was illegally obtained through a warrantless search of his motel room; (2) his statement was taken in violation of Miranda v. Arizona; and (3) the evidence was insufficient to sustain his conviction. Appellant Lyon contends that (1) the court erred in denying him standing to object to the evidence seized in Irion’s motel room and in failing to suppress; and (2) the evidence was insufficient to sustain his conviction.

Statement of Facts

Appellants, with Peter Lesser and Robert Ralston, Jr., who were also indicted but not apprehended, sailed a 38-foot sailboat, the Storm Petrel, into Oceanside, California, from Mexico without clearing Customs at San Diego.

About 8:00 P.M. on November 29, 1971 Lesser and Ralston inquired of Officer David M. Wanner of the Oceanside Harbor Police about mooring the boat, then located in the harbor’s haulout dock, which is not generally accessible and not for the use of transient vessels like the Storm Petrel. Wanner assigned a mooring slip directly in front of the Harbor Headquarters building. Shortly thereafter Lesser requested change for a telephone call. Wanner asked why the boat had not been moved to the assigned slip, and Lesser replied that one of the occupants had gone somewhere and had not yet returned.

Suspicious, Wanner proceeded to the fuel dock and began surveillance of the Storm Petrel and its occupants. The vessel was located in a darkened area about 100 to 150 yards from Wanner’s point of observation. Wanner observed a vehicle, later identified as a Ford Pinto, arrive near the Storm Petrel. An occupant of the Pinto, carrying a small package, went down the rampway where the vessel was located. A few minutes later three persons carried large parcels about the size of duffel bags from the vessel and placed them in the Pinto. The Pinto left the mooring area, and Wanner’s attempt to follow it was unsuccessful.

Later that evening, Wanner returned to the Storm Petrel and observed Ral-ston, Lesser and Lyon aboard the boat eating chicken. Wanner then became aware for the first time that, when the parcels were placed in the Pinto, there may have been four persons (including the driver of the Pinto) in the area of the Storm Petrel.

About 10:30 P.M. in a conversation at the patrol office, Ralston told Wanner that they had come directly to Oceanside from Mexico without reporting to Customs at San Diego. Wanner phoned this information to customs officials and requested assistance. About 11:30 P.M. three customs agents arrived at the harbor.

At about 3:30 A.M., Customs Agent Gore had a conversation with Ralston, Lesser and Lyon, all of whom denied that they knew anything about parcels being removed from the Storm Petrel and placed in an automobile. They proceeded to the Harbor Police Office, where Lesser stated that Irion had, during their journey, departed from the boat at Cabo San Lucas in Mexico.

Also about 3:30 A.M., Officer Bezen-ah of the Oceanside Harbor Police reported observation of a blue Ford Pinto in the parking lot of the Travelodge Motel in Oceanside. A check revealed that Irion was registered in Room 11 and that the Ford Pinto (a rent-a-car) had been rented by him the prior evening. On the basis of this information, Agent Gore, accompanied by two other officers, proceeded at about 3:35 A.M. to the room registered to Irion and knocked loudly on the door. The officers did not have a search warrant.

After five knocks, the “do not disturb” latch was lifted. Gore announced himself as a customs agent. Irion opened the door about 18 inches. Gore displayed his credentials, again announced who he was, and informed Irion that he desired to talk to him. Irion said either: “Come in, but let me get my pants on first”, or “Come in, but I’d like to put on my pants.”

Upon entering the room the officers observed three duffel-type bags leaning on the wall directly in front of them. After Irion returned from the bathroom, Gore asked Irion if he had anything to declare to Customs. Irion replied, “Nothing of any value.” Gore then asked Irion if they could see the items removed from the Storm Petrel earlier that evening. Irion pointed to the bags and said, “There they are.”

Gore asked Irion to open the bags. Irion attempted to open one bag, but, as it was sealed tightly with masking tape, he requested a knife. Understandably hesitant to give Irion a knife, Gore went to a nightstand, picked up a knife belonging to Irion, and opened the bag. Upon examination of the contents, a brick of marihuana was found. The other two bags also contained marihuana, along with sleeping bags, blankets and some books on navigation. In all, the duffel bags contained about 100 pounds of marihuana. Thereupon Irion was placed under arrest and advised of his constitutional rights.

Later that morning Gore arrested Lyon near the harbor area and "advised him of his rights.' Lyon later stated to Gore that he “had no money in the weed, that Irion was nothing but a drunkard anyway, or alcoholic, and refused to make any comment as to where the weed was purchased or where the other individuals could have gone.”

Warrantless Search of Irion’s Motel Room

Irion first contends that the district court erred in denying his motion .to suppress the evidence obtained through the warrantless search and in holding that he consented to the search of his motel room. Relying upon the holding of this court in Bustamonte v. Schneckloth, 448 F.2d 699 (9th Cir. 1971) and related cases he argued primarily that “where, as here, there is no evidence that the appellant knew, or was informed by the officer, that he had a right to withhold permission for the search of the dwelling, effective consent cannot be found.”

Certiorari having been granted in Bustamonte v. Schneckloth when this case was argued on January 8, 1973, an order was entered vacating submission pending the decision by the Supreme Court in Bustamonte.

Schneckloth v. Bustamonte was decided May 29, 1973, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. In reversing the prior holdings of this court upon which Irion relied the Court held that knowledge of the right to refuse consent is but one of a number of factors to be considered in determining whether a consent is given voluntarily. The Court recognized that when the subject of a search is not in custody and the prosecution attempts to justify the search on the basis of his consent, the Fourth Amendment requires that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. “Voluntar-iness is a question of fact to be determined from all .the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.” Id. at 248, 93 S.Ct. at 2059.

Irion contends further that he conditioned his consent to entry upon his first putting on his pants and that this condition was ignored by the agents, “who slithered through the eighteen inch door”. Both the court and Government counsel questioned the accuracy of a similar statement by Irion’s counsel at the oral argument:

“THE COURT: He said, ‘Come in, but I would like to put my pants on.’
“MR. ARBETMAN: And the testimony was that he was allowed to do so.
“THE COURT: The door was opened far enough so that they could pass through without squeezing their way in and then they noticed 3 duffel bags.”

There was substantial evidence to support the conclusion of the district court that Irion did not condition his consent to entry on his first putting on his pants and that, in any event, the agent granted his request to put on his pants.

It is true, as appellants argue, that when, as here, consent is obtained “under color of the badge”, coercion is implied and “the government must show that there was no coercion in fact.” United States v. Page, 302 F.2d 81, 84 (9 Cir. 1962). We recognized in Page, however, that appellate courts usually sustain a trial court’s finding that there was consent to a search, even though the consent was obtained under authority of the badge, particularly where there is a finding of express consent. Id. at 84 and cases cited in footnote 10. Here the district court found that the agents were permitted to enter the motel room “freely and voluntarily” and that Irion consented to the entry and the search of the duffel bags.

Considering the totality of the surrounding circumstances, we conclude, as did the district court, that Irion’s consent was in fact voluntarily given and not the result of duress or coercion, express or implied.

Was Miranda Warning Required?

Irion argues that the statement he made to the customs agents after their entry into the motel and observation o’f the duffel bags was inadmissible as “custodial interrogation” within the meaning of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). As noted supra (Note 1) the parties stipulated for the receipt in evidence of the police report containing the testimony of Agent Gore. No objection was interposed to any part of his testimony, although subsequently in oral argument counsel suggested that Miranda would be applicable.

“Custodial interrogation” is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. at 444, 86 S.Ct. at 1612. A number of tests have been applied in determining whether a person has been deprived of his freedom of action in any significant way. This court in Lowe v. United States, 407 F.2d 1391 (9 Cir. 1969), adopted the “reasonable man” test for determining whether a person is “in custody”, i. e., whether a person, as a reasonable man, believes that his freedom is significantly impaired. “It is the officer’s statements and acts, the surrounding circumstances, gauged by a ‘reasonable man’ test, which are determinative.” Id. at 1397.

In a careful analysis of the Court’s language in Miranda and the application of the reasonable man test Judge Friendly pointed out that where, as here,- there is no actual arrest, “something must be said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning, which indicates that they would not have heeded a request to depart or to allow the suspect to do so.” United States v. Hall, 421 F.2d 540, 545 (2 Cir. 1969), cert. denied, 397 U.S. 990, 90 S.Ct. 1123, 25 L.Ed.2d 398 (1970).

We conclude that the brief and non-coercive questioning of Irion at the time of the entry and search and prior to his arrest did not constitute “in custody” interrogation.

Sufficiency of Evidence

Irion’s final contention, in which he is joined by Lyon, is that the evidence was insufficient to sustain the convictions in that there was no competent evidence that the substance seized in Irion’s motel room was in fact marihuana.

It is true that the substance itself was not introduced into evidence at trial. This, however, is not fatal to the Government’s case, since “It is axiomatic that the nature * * * of physical objects may be proved by parol evidence and production of the objects themselves is merely cumulative.” Francis v. United States, 239 F.2d 560, 562 (10 Cir. 1956).

The “police report”, the only evidence at the trial, contains the following references to marihuana:

The report recites at the outset that it involves “the seizure of approximately 100 lbs. of marihuana” and under the title “Seizures” there is included “A. Approximately 100 lbs. of marihuana.”

Under “Disposition of Seizure” it is recited that Special Agent Gore delivered the marihuana to the Seizure Clerk and that samples had been submitted to the United States Customs Chemist for analysis.

Included as part of the testimony of Agent Gore with reference to finding “a brick-type package inside” the duffel bag, there appears: “After close examination, it was determined that it contained marihuana.”

In listing the witnesses, it was recited that, “Customs Chemist, San Diego, California will testify as to the chemical analysis of the substance sent by the Seizure Clerk * *

It is unfortunate that the report did not specify what the chemist would testify, but presumably when it was prepared it was assumed the chemist would be called as a witness. In any event, there is positive testimony from Customs Agent Gore that the substance was marihuana, and his competency to so testify was not challenged at the trial. In oral argument (approximately two months after the trial) all counsel relied on the stipulation and evidence at the suppression hearing, and there was no suggestion of any question regarding the nature of the substance.

This issue was first raised on appeal. Had it been raised at the trial or oral argument, the Government would no doubt have been permitted to reopen its case and call the chemist as a witness or introduce his written report in evidence.

Under these circumstances, and in view of Gore’s unchallenged and uncontradicted testimony that the substance was in fact marihuana, this untimely challenge by both appellants to the sufficiency of the evidence must fail.

Was Evidence of Lyon’s Participation Sufficient to Sustain his Conviction?

It is true, as appellant Lyon contends, that the mere fact that a person is a passenger on a sailboat from which marihuana is removed does not make him criminally responsible for possession or importation of the marihuana. There must be a “basis for a rational attribution that he had some interest in the marihuana itself, or if he was without any such interest, that he was participating in its importation by some proximate action to effect that end, such that his status * * * was that of an aider and abettor.” Bettis v. United States, 408 F.2d 563, 568 (9 Cir. 1969).

Moreover, “mere knowledge of the crime, or mere presence at the scene of it, is not sufficient evidence to convict a defendant of knowingly participating in a crime.” United States v. Samaniego, 437 F.2d 1244, 1246 (9 Cir. 1971).

It is undisputed that Lyon was one of four persons on a sailboat, the Storm Petrel, which departed from Guadalupe Island, Mexico, and arrived five days later at Oceanside, California, without stopping at a United States port of entry. The Storm Petrel was registered to Irion. Both Irion and Lyon were residents of Eureka, California, and each had a Mexican Tourist Permit for Ma-galan, Sinalon, Mexico, dated October 14, 1971. There is substantial evidence that 100 pounds of marihuana were transported in the boat, taken off at Oceanside, and removed by car to Irion’s motel room, where the contraband was seized by customs agents.

To determine the extent of Lyon’s alleged participation in the possession and importation of the marihuana, it is necessary to refer in some detail to the specific references to Lyon in the “Police Report” of the Bureau of Customs.

The first specific reference to Lyon appears in the “testimony” of David Wanner, Oceanside Harbor Patrol, when Wanner went to the boat after his unsuccessful attempt to follow the Ford Pinto:

“He then returned to the Harbor Headquarters building area, but before returning to the office, advised the subjects in the vessel that they would have to move their vessel to the assigned berthing area. At this time, it was noted that there were three subjects aboard the vessel.
“Upon engaging in conversation with the third subject, later identified as James Evan LYON, it was learned that they were eating fried chicken and would move their vessel very shortly.”

The “testimony” of Agent Gore contains the following specific references to Lyon:

(Conversation with Lesser, Ralston & Lyon about 3:30 A.M.)
“Gore then asked what articles had been removed from the vessel earlier that evening and placed in a vehicle, at which time LESSER and the individuals later identified as RALSTON and LYON replied, ‘What vehicle are you talking about? Nothing has been taken off the boat, and we don’t even have a car.’ ”
•X- * -X- -X- *x-
“At 5:10 a. m., 11/30/71, Gore placed LYON under arrest and advised him of his constitutional rights.” ,
* * * * * -X-
“At 9:22 a. m., Agent Gore re-advised LYON of his constitutional rights. LYON stated that he had no money in the weed, that IRION was nothing but a drunkard anyway, or alcoholic, and refused to make any comment as to where the weed was purchased or where the other individuals could have gone.”

The trial court could reasonably infer from the evidence that Lyon knew that the vessel was transporting marihuana. He did not at any time in his conversations with the officers deny knowledge of the marihuana. Rather his statement that he “didn’t have any money in the weed” was a tacit admission he knew contraband was on the vessel.

It is true, as Lyon contends, that Wanner was unable to identify the three persons who carried the duffel bags from the boat and placed them in the Ford Pinto. The court could reasonably infer, however, whether or not Lyon was one of those persons, that he knew someone from the Ford Pinto had come aboard and that the duffel bags were removed from the boat. Within a few minutes after Wanner observed the transfer of the duffel bags he was aboard the vessel talking with its occupants. It was Lyon who then told Wanner they were eating fried chicken and “would move their vessel very shortly”. Lyon participated in the later conversation with the officers when the three occupants remaining on the boat (Lyon, Lesser and Ralston) denied that any parcels had been taken off the boat and claimed that Irion had left the boat in Mexico.

This is not a case where the defendant was a passenger for a short period of time in a vehicle crossing the border. It was an extended trip by four persons in a sailboat, culminating in the five-day trip from Mexico to Oceanside, California. Nor is it a case where the accused was simply present when the offense was committed or a mere listener when others made incriminating statements. He actively participated in the conversations with the officers and joined in exculpatory statements which were obviously false.

As we noted in Bettis, supra, 408 F.2d at 568, proof of the requisite relationship to the contraband such that the accused “could probatively be found to be more than a passenger” can “sufficiently be made by indication from relationship, attitude, conduct, utterance or other probative circumstances shown.” In our opinion this case is closely analogous to the situation in Eason v. United States, 281 F.2d 818 (9th Cir. 1960) where we sustained possession convictions, denying application of the “passenger doctrine” on the ground that the occupants of the vehicle were close friends and had participated together in “joint venture” fashion in a pleasure trip to Mexico. Here the reasonable inference that Lyon knew there was contraband on the Storm Petrel and the joint venture participation in the lengthy sailboat cruise were sufficient to establish that Lyon was “more than a passenger” and had the required relationship to the contraband sufficient to sustain his convictions for possession and importation.

It is true that the evidence against Lyon is largely circumstantial, but as this court has recognized in many cases it is proper “to infer a fact at issue from other facts which have been established by circumstantial evidence” and “circumstantial evidence is not inherently less probative than direct evidence.” United States v. Nelson, 419 F.2d 1237, 1239 (9 Cir. 1969). As to both direct and circumstantial evidence, “the jury must use its experience with people and events in weighing the probabilities.” Id. at 1244, quoting from Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954). In determining whether a motion for acquittal should have been granted, “the reviewing court may properly inquire whether the evidence, considered most favorably to the government, was such as to permit a rational conclusion by the jury that the accused was guilty beyond a reasonable doubt” (Id. at 1242), and the test of reasonable doubt is whether the “jurors reasonably could decide that they would not hesitate to act in their own serious affairs upon factual assumptions as probable as” that the defendant participated in the criminal offense. Id. at 1245.

Viewing the evidence as a whole in the light most favorable to the Government, we conclude that the evidence and reasonable inferences to be drawn therefrom were sufficient to sustain the trial court’s finding of guilt on the grounds that the “passenger doctrine” was not applicable and that Lyon was participating in a joint venture with the other occupants of the boat.

Affirmed as to both appellants.

      . There was a suppression hearing at which Gore testified that Irion’s response was, “Come in, but let me get my pants on first. I’m in the nude.” No witnesses were called at the trial. The parties stipulated that the police report be received in evidence and that if the officers were called to testify, they “would testify exactly as they have testified in the report of the customs officers.” The report on Gore’s conversation with Irion reads in part: “Irion * * * replied, ‘Come in, but I’d like to put on my pants’ (as he was in the nude). He further requested that he be allowed to go to the bathroom, which he was.”

      . See Cipres v. United States, 343 F.2d 95, 97 (9 Cir. 1965), and Schoepflin v. United States, 391 F.2d 390, 398-399 (9 Cir. 1968), cert. denied, 393 U.S. 865, 89 S.Ct. 146, 21 L.Ed.2d 133 (1968).

      . The Court noted that, “In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence.” Bustamonte, supra 412 U.S. at 227, 93 S.Ct. at 2048.

      . Gore was examined and cross-examined at length at the suppression hearing regarding the conversation when the agents entered Irion’s motel room. On cross-examination he testified in part:
      “Q. And what was the conversation, again?
      “A. I identified myself to him. He said, ‘Yes.’ I said, T would like to talk to you,’ and I had my credentials in my hand. He said, ‘Just a moment. Can I get my pants on? I’m in the nude.’ I said, ‘Yes.’ So, we stepped in. He then asked, ‘May I go to the bathroom?’ I said, ‘Go ahead.’
      * * * *
      “Q. When he said, ‘Let me get my pants on first,’ doesn’t that indicate to you that he wanted you to stay out until he at least got his pants on?
      “A. No, sir.”

      . In Page the district court had not exercised its “fact-finding functions; rather it, in effect, sustained a ‘demurrer to the evidence’.” We remanded for a determination by the district court whether or not consent liad in fact been given. ,

      . This is clear from the trial judge’s comments in open court following oral argument and before finding appellants guilty. The parties had waived special findings of fact. It may be noted also that Gore was examined at length at the suppression hearing and the district court had the benefit of this testimony, as well as the police report, in finding that consent was given.

      . In view of this holding it is unnecessary to determine whether the search could be upheld as a border search, as is alternatively argued by the Government.

      . The trial was held on April 13, 1972. No objections were made by any of the parties to any portion of the police report. The parties were given an opportunity to file briefs and present oral argument at a later date. At oral argument on June 5, 1972 counsel for Irion suggested the application of the Miranda rule by reason of the “interrogative atmosphere in his own house, 3:30 in the morning”.

      . See Kamisar, Criminal Law and the Constitution — Sources and Commentaries, and particularly Chapter 4 dealing with “Custodial Interrogation Within, the Meaning of Miranda," listing at page 362 four alternative tests.

      . The police report was in fact presented to the court by counsel for Irion, with this statement: “Mr. Arbetman of the government, and Mr. Politis (counsel for Lyon) and I have entered into a stipulation to the police report in this case, that if the officers named in the police report were called today to testify, they would testify exactly as they have testified in the report of the customs officers.”

      . At the suppression hearing Gore testified on direct examination, “Inside the first package I opened up there was a brick-shaped object, which upon closer examination revealed to be marihuana,” and “The other two also contained marihuana along with sleeping bags, blankets, and some' navigation books.” ■ On cross-examination he was asked by counsel for Irion, “How much marihuana was found in the bags?”, to which he replied, “Approximately a hundred pounds.”

      . See also United States v. Thomas, 453 F.2d 143, 143 (9 Cir. 1971), cert. denied, 405 U.S. 1069, 92 S.Ct. 1516, 31 L.Ed.2d 801 (1972), and cases there cited. These cases involved presence as a passenger in an automobile transporting contraband across the border.

      . The determination of whether the evidence was sufficient to sustain a finding of guilt by the trial court is complicated by the manner in which the case was tried — through submission of the police report by stipulation rather than an adversary proceeding with both sides having an opportunity to clarify con-clusory testimony. Wanner and Gore did testify at the hearing on Irion’s motion to suppress. Lyon had not joined in the motion to suppress. His counsel was present, but did not participate in the hearing. It was agreed, however, at the trial that a transcript of the testimony should be obtained and considered by the court. All counsel referred to the evidence at the suppression hearing, but it was of course concerned with the validity of the search rather than Lyon’s guilt.

      . This was between 9 :20 P.M. when Wanner first observed the vehicle and 9:50 P.M. when ho returned to the Patrol Office. Wanner testified at the suppression hearing that he observed a vehicle pull up adjacent to where the vessel was parked and a person “exited from the passenger side of the vehicle carrying some sort of a package” and went down a rampway where the vessel was moored. Shortly thereafter three persons were observed carrying large parcels of duffel-bag size to the vehicle.

      . Wanner testified at the suppression hearing that he found three subjects eating at that time and one of them stated they were eating Kentucky Chicken. He observed a bucket size barrel of chicken.

      . At the suppression hearing Gore testified in part: “The three individuals jointly or unanimously said, ‘What packages are you talking about? We don’t know anything about that. AVe don’t even have a car.’ And I explained to them that one of the officers from the Harbor Police had observed what he thought was packages coming from the vessel and placed in the car, and they said, ‘AVe don’t know anything about that. We don’t know what the officer has seen.’ ”
      It appears under “History of Case” in the report, signed by Gore, that in the same conversation Lesser stated that Irion “had debarked the vessel in Cabo San Lucas, Mexico and they did not know his whereabouts.”

      . Under “History of Case”, it appears that after Irion was arrested, “Officers then proceeded to the vicinity of the STORM PETREL and arrested LYON, who had been observed proceeding from the vessel. Neither LESSER nor RALSTON could be found.”

      . The court could reasonably infer also that the package carried on board contained the Kentucky fried chicken to which Lyon referred.

      . In colloquy with counsel during the oral argument, the trial court noted that Lyon was a passenger “all the way up the coast of Mexico”.

      . Here a jury was waived and Lyon was found guilty by an experienced trial judge who was familiar with the tests to be applied in determining whether the defendant was guilty beyond a reasonable doubt.


author: SIMPSON, Circuit Judge:

text:
    Robbie Mae ALEXANDER et al., Plaintiffs-Appellants, v. TEXACO, INC., Defendant-Appellee.
    No. 72-2621.
    United States Court of Appeals, Fifth Circuit.
    Aug. 8, 1973.

      Thomas H. Lee, Houston, Tex., for plaintiffs-appellants.
    Oliver J. Butler, Jr., Houston, Tex., for defendant-appellee.
    Before COLEMAN and SIMPSON, Circuit Judges and COMISKEY, District Judge.
   SIMPSON, Circuit Judge:

In the appeal in this non jury Texas diversity case, tried on stipulated facts, we are asked to interpret a deed executed prior to the enactment of a gross production tax on the oil produced from the deeded land and determine upon which party that tax should fall. The district court, 343 F.Supp. 663, found that the deed failed to transfer the burden of the tax from the grantors to the grantee. We affirm.

On April 25, 1930, R. E. Burt and P. S. Griffith, as Grantors, executed a deed to The Texas Company, as Grantee, conveying an undivided one-half interest in 727 acres of land in Harris County, Texas. Consideration for the conveyance was $800,000.00 payable by the Grantee to the Grantors by a cash payment of $225,000.00 upon execution of the deed, and deferred payments of V32 of the Value at the wells of all oil and gas produced and saved from the land conveyed in the deed until $575,000.00, without interest, had been paid. If Vs2 of the value of the oil and gas produced from the land was insufficient to pay the $575,000.00, The Texas Company was under no obligation or liability to pay the amount over and above the amount which %2 of the value of the oil and gas would pay. The deed further provided for the deferred payments to be made on a monthly basis, for the standard by which to determine the value of the oil and gas, for the exclusion from the calculation of payments all oil and gas from the land conveyed which was used for development or operating purposes on that land, and for the express absence of any obligation on the part of the Grantee as to future drilling of wells or as to future production from existing wells.

Robbie Mae Alexander, Jos. H. Burt, Arch B. Marshall and James P. S. Griffith, plaintiffs herein, are all residents of Texas and the successors in interest to the Grantors under the deed. Defendant Texaco, Inc., a Delaware corporation (Texaco) having its principal office and place of business in New York, is the Grantee named in the deed, its corporate name having been changed from “The Texas Company” to “Texaco, Inc.”

Since the execution of the deed in 1930, the deferred consideration provided for has been paid on a monthly basis and a statement reflecting the status of the account has been furnished every month by Texaco to plaintiffs or their predecessors in interest.

Effective September 1, 1933, the State of Texas enacted an Occupation Tax, commonly referred to as a gross production tax, on oil produced in the state. V.A.T.S. Tax.-Gen. art. 4.01 et seq. Since that date, this tax has been in continuous effect. It places primary liability on the producer, V.A.T.S. Tax.-Gen. art. 4.03(1) & (7), defined as including any person owning any interest in any oil or its value whether produced by him or by some other person on his behalf, V.A.T.S. Tax.-Gen. art. 4.01(1). The statute further provides for the purchaser of the oil to collect the tax by deducting and withholding the amount of the tax from any payments made by the purchaser to the producer and requires the producer to remit the tax so withheld to the State. V.A.T.S. Tax.-Gen. art. 4.03(1), (4) & (8).

Since 1933, Texaco has made payment of the Occupation Tax levied on oil produced from the land conveyed in the deed. However, every month from September 1933, through November 1951, it charged against and deducted from the balance owing on the deferred consideration the Occupation Tax due on the proportionate amount of the tax applicable to the production on which such deferred consideration has been based, i. e., on %2 of the oil produced from the land. Plaintiffs or their predecessors in interest appear not to have objected to this procedure, which amounted to a charge of $5,065.35. From December 1951, through December 1966, Texaco charged against and deducted from the balance owing on the deferred consideration only the net value of %2 of the oil produced from the land, that is,, it did not include the Occupation Tax levied on such oil in the deferred consideration. This amounted to $14,095.86, which, after reviewing plaintiffs’ account in 1966, Texaco did later charge against and deduct from the deferred consideration. It was upon being thus notified of Texaco’s action” of charging against and deducting from the deferred consideration this sum of $14,095.86 that appellants first objected to any charging against and deducting from the deferred consideration of any amount of the Occupation Tax on oil produced from the land since the date of enactment of the tax. In January 1967, Texaco resumed charging against and deducting from the deferred consideration that V32 of the Occupation Tax on oil produced from the land. This continued through June 1970, when, including the total amount of Occupation Tax which Texaco charged against and deducted from the deferred consideration from September 1933, the $575,000.00 deferred consideration payment provided for in the deed was completed. The amount deducted and withheld from January 1967 through June 1970 was $5,721.07. Thus, the total amount of Occupation Tax which Texaco charged against and deducted from the deferred consideration during the period from September 1933, through June 1970, was $24,822.28. Plaintiffs sued below for recovery of this amount and were denied recovery.

The question whether the ultimate burden of this tax is to be borne by the grantors or by the grantee rests upon a determination whether the $575,000.00 limit of the production payment is, under the terms of the deed, a measure of the gross production of this Vs2 interest or is a measure of money to be actually paid and received; that is, as the district court stated the issue, whether the grantors are entitled to the gross value of the %2 of the production or the. net value after deduction of the amount of Occupation Tax paid on such production. Depending upon the resolution of this question is the practical effect of whether the production payment terminated in June 1970, or was to continue in existence until plaintiffs receive the final $24,822.28.

Both sides agree that plaintiffs’ interest in the oil production here is such that imposes upon them as producers the burden of paying the Occupation Tax allocable to such interest, and that such burden may be shifted to the lessee if the intention to do so is clearly manifested. McLean v. Stanolind Oil & Gas Co., Tex.Civ.App.1951, 238 S.W.2d 268; Felber v. Sklar Oil Corp., Tex.Civ.App. 1950, 235 S.W.2d 481; Cities Service Oil Co. v. McCrory, Tex.Civ.App.1945, 191 S.W.2d 791; Stanolind Oil & Gas Co. v. Terrell, Tex.Civ.App.1944, 183 S.W.2d 743; Fain-McGaha Oil Corp. v. Murko Oil & Royalty Co., 1937, 128 Tex. 646, 101 S.W.2d 547.

Plaintiffs argue that when the entire deed is considered and so construed as to give effect to all its terms, it must be concluded that the parties thereto had intended for them to actually receive the full $575,000.00, or the net value after deduction of the amount of Occupation Tax paid on %2 of the production. In other words, they contend that the deed shifted their burden to pay the tax onto Texaco because certain portions of the instrument would be rendered meaningless if their interpretation of it is not accepted. In particular, the deed called for payment of “$575,000.00 without interest, being the deferred consideration” and that

[I]f one thirty-second (%2) of the value of the oil and gas produced by The Texaco Company from said lands is not sufficient to pay said Five Hundred Seventy-five Thousand ($575,000.00) Dollars, then The Texas Company shall be under no obligation or liability to pay the amount over and above the amount which one thirty-second (%2) of the value of the oil and gas will pay; it being fully understood that the obligation to pay the Five Hundred Seventy-five Thousand ($575,000.00) Dollars is an obligation to pay the same only out of one thirty-second (%2) of the value of the oil and gas produced and not otherwise.

This language, plaintiffs contend, can have meaning only if the $575,000.00 refers to an amount of money intended to he received, and the imposition of a tax subsequent to the deed should not frustrate this intention merely because its burden was not shifted by more specific language.

The district court was not persuaded by the plaintiffs’ argument that the deed here did in fact manifest the requisite intent to shift the burden of the tax upon Texaco. Neither' are we. First, of the numerous Texas cases which have construed similar instruments, in only one instance was the language of the instrument held by a Texas court to have transferred the payment of the tax. In that case, Stanolind Oil & Gas Co. v. Terrell, supra, the tax was in effect at the time of the making of the lease agreement, thus making it a part of the contract, and the language of the instrument clearly stated that the lessors were to receive from the proceeds of the sale of the oil, “. . . when and if produced, saved and sold, the net sum of Sixty-Four Thousand Dollars ($64,000.00) without deduction of any kind or character; . . . .” (Emphasis added.) 183 S.W.2d at 744. With the $64,000.00 figure defined as a “net” amount “without deduction of any kind or character,” we think it would indeed be surprising to find any other interpretation but that the tax which was in existence and therefore presumably considered by the parties would not be deducted from that amount. In all the other Texas cases cited to us, where the language of the instrument was neither as patently unambiguous nor as sweeping as in Terrell, the required manifestation of intent to shift the burden of paying the Occupation Tax has been found wanting.

For instance, in Cities Service Oil Co. v. McCrory, supra, the lease agreement provided for the oil payment to be made “. . . free of cost or expense of development or operation of the leased premises . . . until from the proceeds from the sale of such oil and/or gas, Lessor shall have received the sum of Twenty-Eight Thousand Dollars ($28,000.00), it being understood that when Lessor shall have received said sum in the amount above specified, Lessor’s interest reserved herein shall terminate . . . . ” The court there held that this language did not shift the burden of the Occupation Tax. In Felber v. Sklar Oil Corp., supra, where the oil payment provision of the agreement specified that the amount of its payment would be “. . . net, free of all costs and expenses of drilling for and operating for the production of and producing the said oil . . . until the above mentioned sum . . . has been realized .,” the court held the burden did not shift. Similarly, in Fain-McGaha Oil Corp. v. Murko Oil & Royalty Co., supra, involving a lease agreement executed prior to enactment of the Occupation Tax which specified that the lessee would “. . . pay all the expenses necessary in the development and operation of said lease for the production of oil and gas therefrom . . .” and that the lessee’s flat $0.25 per barrel operating charge would be “. . . all the expenses that the seller shall be liable for . . .,” it was still held that, the production tax was the lessor’s obligation.

Second, no effort was made by the conveyance here to provide for unforeseen deductions from the deferred consideration although the parties did make provisions for certain known liabilities. For example, the oil and gas would be valued at the well, thereby requiring that the costs of production be paid by the lessee. A fair interpretation is that unexpected risks were intended by the parties to lie where they might be subsequently imposed.

Finally, Texaco without objection charged against and deducted from the balance owing on the deferred consideration the Occupation Tax due on the applicable production beginning immediately after the tax went into effect and continuing for nearly twenty years. The grantors did not object to such practice during that time. This apparent acquiescence, and the absence of a showing of any attempt to protest or reform the contract at the time the tax was first imposed, is persuasive in our attempt to arrive at the intent of the parties to the original agreement.

We deem ourselves bound, as did the district court, by the rather strict standards the Texas courts have imposed on efforts to shift the burden of paying the Occupation Tax. Mindful of the significant indicia present or absent in the case at bar, we are not convinced that the 1930 deed from Burt and Griffith manifested the clear intent required to burden Texaco with payment of the Occupation Tax for the oil produced from the lands conveyed.

Affirmed.


author: BELL, Circuit Judge:

text:
    Anthony T. LEE et al., Plaintiffs, United States of America, Plaintiff-Intervenor-Amicus Curiae, National Education Association, Inc., Plaintiff-Intervenor-Appellant, v. MACON COUNTY BOARD OF EDUCATION et al., (Conecuh County Board of Education), Defendants-Appellees.
    No. 72-2554.
    United States Court of Appeals, Fifth Circuit.
    July 20, 1973.
    Solomon S. Seay, Jr., Montgomery, Ala., for NEA.
    David L. Norman, U. S. Dept, of Justice, Civil Rights Div., Washington, D. C., Charles S. White-Spunner, Jr., U. S. Atty., Mobile, Ala., Theodore E. Ravas, Jr., U. S. Dept, of Justice, Educational Section, Washington, D. C., for the United States.
    J. B. Nix, Jr., Evergreen, Ala., for Co-necuh.
    Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
   BELL, Circuit Judge:

The claim underlying this appeal was in the form of a wide ranging attack directed to alleged deficiencies on the part of the Conecuh County School Board in complying with the final desegregation order theretofore entered with respect to the school system. The United States and the NEA were intervenors in the desegregation ease and as intervenors filed motions for supplemental relief in which the deficiencies were asserted. The NEA motion was limited to departures from the order with respect to the hiring, demotion and dismissal of black principals and teachers.

The district court after a hearing and after considering detailed reports required of the school system, entered an order denying a temporary restraining order. Only the NEA appeals. The order was tantamount to the denial of a permanent injunction in that no further proceedings were expected.

It is to be noted that only injunctive relief was sought in the district court by the NEA. It is to be noted also that no brief has been filed on behalf of the school board.

We have studied the record and the various reports filed in an effort to winnow the issues now assigned on appeal from the additional issues which were considered in the trial court at the behest of the United States. We have determined that we are unable to proceed to decision without findings of fact and conclusions of law from the district court. The case will be vacated and remanded with direction that such findings of fact and conclusions of law be made by the district court on the record as it now exists, or as supplemented in the discretion of the district court.

In Hines v. Rapides Parish School Board, 5 Cir., 1973, 479 F.2d 762, we pointed out the procedure to be followed and the conditions to be met by new groups in seeking relief in ongoing school desegregation cases. The proper procedure is to petition to intervene rather than beginning a new suit. We emphasize here what was said there: The petition for intervention should contain the precise issues which the intervenors seek to present. Here, the NEA was allowed to intervene in an earlier stage of the desegregation case. The difficulty comes in the impreciseness of the issues they sought to present at the current stage of the case.

On remand, the issues to be considered will be limited to those assigned by the NEA on this appeal and which were raised in the district court. We perceive these as the following. Each issue is to be considered in the light of the authorities cited.

(1) Did the school board violate the requirements of Singleton v. Jackson Municipal Separate School District, 5 Cir., 1969, 419 F.2d 1211, and the order of the district court entered pursuant thereto, with respect to the claim that the board failed and refused to assign four black former principals to principalship vacancies. In this connection, see Lee v. Macon County Board of Education (Florence School System), 5 Cir., 1972, 456 F.2d 1371; Lee v. Macon County Board of Education (Muscle Shoals School System), 5 Cir., 1971, 453 F.2d 1104.

(2) Did the school board violate the requirements of Singleton, and the order of the district court entered pursuant thereto, with respect to the rights of four dismissed black teachers, Strong, Randall, White, and Peagler, in dismissing them from their teaching positions in the school system or in failing to rehire them.

(3) The additional claim asserted on appeal that the school board was required to maintain the black-white teacher ratio existing in 1968 is rejected. We made it plain in Carter v. West Feliciana Parish School Board, 5 Cir., 1970, 432 F.2d 875, that the faculty desegregation requirement of Singleton did not “. . . contemplate freezing the faculty ratio which is present when faculty desegregation takes place in the system. It contemplates rather that faculty desegregation will be accomplished by invoking the system-wide ratio as a rule for each particular school in the system and that thereafter the system will function from the standpoint of faculty and staff on the merit system.” We went on to say: “This means that once a unitary system has been established the system-wide racial ratio may thereafter change from time to time as a result of non-discriminatory application of objective merit standards in the selection and composition of faculty and staff.” 432 F.2d at 878-879.

In proceeding to determine these issues, the district court will be faced with a preliminary issue of overriding importance. May the NEA advance the claims in question or are they of such nature as to require their presentation only by the principals and teachers concerned, or one or more of them on behalf of the class? This question should be determined in the first instance in the district court. There was no issue in this regard in the district court, no doubt because it only vaguely appeared, if at all, that the individual claims were being advanced. There was no mention whatever that the NEA was attempting to sue for back pay and allowances for the principals and teachers. There is not even an indication that the principals and teachers are members of the NEA. On the question, cf. Smith v. Board of Education of Morrilton School District, 8 Cir., 1966, 365 F.2d 770 (J. Blackmun), where the Arkansas Teachers Association was found to have such interest as would give it standing as a member of the teacher class in a suit against the school board for discrimination against teachers where injunctive relief was sought with money damages as an alternative. Cf. also Armstead v. Sarkville Municipal Separate School District, N.D.Miss., 1971, 325 F.Supp. 560, where standing was found for the NEA, along with black teachers, to challenge teacher testing.

This question, more akin to standing, is to be distinguished from the propriety of intervention as of right or as a matter of discretion under Rule 24, F.R. Civ.P. See Horton v. Lawrence County Board of Education, 5 Cir., 1970, 425 F.2d 735; Bennett v. Madison County Board of Education, 5 Cir., 1970, 437 F.2d 554. Here the NEA was permitted to intervene generally long prior to the origination of the instant litigation. The question on remand will be the extent to which the NEA may, as an intervenor, vicariously seek vindication of the rights of others.

Vacated and remanded with direction.

      . We add that in such cases it would be the better practice for the district court to require a clear delineation of the contentions of intervenors as the first step in proceeding to determine the validity of the attempt to intervene or, if allowed, the merits of the claim.