author: TUTTLE, Circuit Judge:

text:
    Clarence Eugene MIDDLEBROOKS, Jr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-4033.
    United States Court of Appeals, Fifth Circuit.
    Sept. 27, 1974.
    Rehearing Denied Nov. 5, 1974
    Calvin J. Faucett, Orlando, Fla., for petitioner-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Jeffry R. Jontz, Harrison T. Slaughter, Jr., Asst. U. S. Attys., Orlando, Fla., for respondent-appellee.

      Before TUTTLE, WISDOM and GEE, Circuit Judges.
   TUTTLE, Circuit Judge:

This appeal from the denial of a federal prisoner’s motion to vacate his sentence under 28 U.S.C. § 2255 presents the question whether this Court’s apparent reliance on erroneous information contained in the government’s brief so affected its decision to affirm the defendant’s conviction on direct appeal that the defendant was denied due process of law. We affirm the denial of the defendant’s section 2255 motion.

The defendant, Clarence Eugene Mid-dlebrooks, Jr., was convicted of sixteen (16) counts of mail fraud in violation of 18 U.S.C. § 1341, following a jury trial in which he waived counsel and represented himself. The trial court sentenced him to two years imprisonment and fined him $4000 on eight counts. He was given a suspended sentence and a total probationary period of five years to run consecutively to the sentence of imprisonment imposed on count five. This Court affirmed the conviction, 431 F.2d 299 and the Supreme Court denied certiorari, 400 U.S. 1009, 91 S.Ct. 569, 27 L.Ed.2d 622. Subsequently, while in custody the defendant filed his first section 2255 motion challenging his waiver of counsel at trial, among other issues. This motion was denied by the sentencing court on August 24, 1971 and affirmed by this Court, 457 F.2d 657. Once again the Supreme Court denied certiorari, 409 U.S. 848, 93 S.Ct. 55, 34 L.Ed.2d 90.

On March 6, 1972 the defendant filed the Motion to Vacate Judgment and Sentence pursuant to 28 U.S.C. § 2255 which is now under consideration by this Court. On October 26, 1973 the District Court for the Middle District of Florida denied the motion and defendant brings this appeal from that order.

The defendant originally argued three issues in his March 6, 1972 section 2255 motion. The first two, one concerning allegedly illegal wiretaps and the other concerning allegedly inadequate counsel on appeal, were properly found to be without merit by the trial court and are not before us today. The last concerned alleged erroneous information contained in the government’s brief offered during the direct appeal which the defendant alleges was accepted by this Court as true and accurate and thus affected his right to appeal his conviction. The district court found that this claim, while it had factual merit, did not affect the defendant’s direct appeal and denied the defendant’s section 2255 motion.

To understand the significance of the false information presented to this Court by the government during the direct appeal it is necessary first to understand the business in which the defendant was engaged and for which he was convicted of mail fraud. The defendant designed, manufactured, and sold, through the United States mails, supercharger and turbine engine assembly kits while doing business under the name of Turbonique, Inc. These kits were composed of rough metal castings which required elaborate machining and finishing before they could be assembled —and once assembled needed extensive additional equipment before they could be installed on an automobile. The total cost of assembling and installing a supercharger appears to have been three or four times the initial cost of a casting kit.

The defendant was charged with fraudulently representing these kits to be complete, or in other cases to have fraudulently represented them to be easily installed when in fact only a mechanic of superior skill and experience, working in a sophisticated machine shop, would be able to assemble them. Further the defendant was charged with fraudulently representing to potential customers that they could obtain exclusive distributorship rights in their area and that these distributorships would be enormously profitable due to the sizeable interest expressed in the kits by residents in that area. Finally the defendant was charged with fraudulently representing to potential customers that he would refund their payment in the event they were dissatisfied with the kit.

Fifteen witnesses testified that they had purchased kits expecting them to be either complete, easily installed, or both, and that upon expressing dissatisfaction to the defendant found they were unablg to obtain refunds of their payments but at best could obtain a credit against future purchases in the amount of their payment. These witnesses also testified to various additional representations which the defendant made personally, either in conversation in person or over the telephone, all of which proved to be false.

The issue before us concerns one of the catalogues the defendant used in his business. This catalogue was one of several promotional publications the defendant mailed to prospective customers, the others including typed letters, printed brochures and copies of advertisements which had appeared in national magazines such as Hot Rod and Motor Trend.

Purporting to quote from this cata-logue, the government in its appellate brief included the statement:

“The degree of difficulty to be encountered in the assemblage and installation of supercharger and turbine kits was described by Turbonique cat-alogues in the following language: ‘Can be easily installed with the use of small, basic machine and hand tools.’ (G. Ex. 24, 32). Testimony at trial revealed that a sixteen inch lathe, drill press and precision balancing equipment were tools absolutely necessary for assembling Turbonique supercharger kits described as Model No. C-2-C supercharger kits. (A. 158-159, 195-196, 759-760).” (Brief of Appellee, Page 5)

The actual language in the catalogue was quite different:

“ . . . most of the machining operations can be performed with small, basic, machine and hand tools.” (Emphasis added).

Inasmuch as one of the central issues in the case concerned whether the kits were represented as being ready to install, as opposed to being composed of castings which required further machining work, the difference between the two quotations seems substantial. In affirming the conviction of the defendant this Court^ stated:

“Turbonique catalogues said: ‘Can be easily installed with the use of small, basic machine and hand tools.’ Testimony at the trial revealed that a sixteen inch lathe, drill press, and precision balancing equipment were necessary tools for assembling the Turbo-nique Model No. C-2-C Supercharger.” 431 F.2d 299, 302.

The striking similarity between the government’s incorrect quotation and the Court’s seems clearly to suggest that the Court accepted the government’s version of the quotation as true.

A second inaccurate reference to the record was made on page 6 of the government’s brief:

“Information as to additional parts required for making the kit complete and operable, such as ignition systems, fuel tanks, plumbing fixtures, valves and bearings, was subtly concealed on one of the back pages of the catalogues (A. 162, 183-185; G. Ex. 24, 32).”

In fact, on page 8 of the catalogue in question the following statement appeared :

“A complete factory assembled turbine ready for immediate installation on your vehicle or device. Before operating the purchaser must provide the necessary electrical hookup plus a fuel tank and associated details.”

In addition on the same page of the cat-alogue the following details were given:

“A complete set of unfinished castings are supplied, however, the builder must furnish all standard hardware items such as nuts, bolts, gaskets, bar stock, and other standards.”

While not referred to in the Court’s opinion, we can assume arguendo that such misstatements were also viewed by the Court as accurate.

We hold that the trial court correctly dismissed defendant’s section 2255 motion. Like the district court we believe the defendant’s claim that the inaccuracies in the government brief on direct appeal affected the Court’s view of the facts of the case is factually correct; yet this inaccurate account of the facts issues involved in the case and the deci-concerning one particular catalogue in no way affects the outcome of the legal sion reached in that case was proper.

I

Before considering the question of the effect the inaccuracies reflected in this Court’s initial decision had on the defendant’s constitutional rights of appeal and due process, we must first consider whether such a claim is proper on a section 2255 motion. We hold that such a claim can be raised in this case.

The Supreme Court has made it clear that the drafting of section 2255 was designed to create a more convenient procedure for processing federal habeas corpus appeals, but was not intended to limit the scope of habeas review by federal courts of the constitutional claims of federal prisoners. Kaufman v. United States, 394 U.S. 217, 221-222, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969). There the Court made clear that limitations on review due to conventional rules on finality of judgments were subject to the same restrictions as on state finality requirements. The standards of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) and Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965) are thus applicable in determining whether the failure of the defendant to challenge the inaccuracies of the government’s brief in his direct appeal should foreclose subsequent review under section 2255.

Certainly there would not appear to be the type of “deliberate by-pass” which the Supreme Court has described as being necessary to constitute a waiver of the right to raise a particular constitutional issue. In part this is true because the defendant could not know what value the Court of Appeals would place on the incorrect information until after its opinion was published.

Secondly where an issue of constitutional dimension has been raised which raises doubts concerning the fairness of the original proceeding, it has been held that “[Conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged.” Sanders v. United States, 373 U.S. 1, 8, 83 S.Ct. 1068, 1073, 10 L.Ed.2d 148 (1963). See also Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

Thus while we recognize that our cases establish that section 2255 motions are not a “substitute for appeal”, Brown v. United States, 480 F.2d 1036, 1038 (5th Cir. 1973); Larson v. United States, 275 F.2d 673 (5th Cir. 1960); Smith v. United States, 265 F.2d 14 (5th Cir. 1959), cert. denied, 360 U.S. 910, 79 S.Ct. 1297, 3 L.Ed.2d 1261 (1959), and certainly ordinary trial errors which can be found in the record are not appropriate matters for section 2255 review, nonetheless matters of such gravity as to go to the heart of the appeals process, which cannot be said to have been waived by the defendant, have not been thought to be foreclosed by the failure of defense counsel to raise the issue on direct appeal.

II

It seems clear that the government’s brief in the direct appeal of this case contained serious misstatements which affected the court’s view of the facts of the case. If it were true that these inaccuracies affected this Court’s determination of the legal issues raised on that appeal, the defendant would have been denied due process in pursuing the appeal he was guaranteed as a matter of right. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1961). The issue we must decide is whether the incorrect quotations from one of the defendant’s catalogues affected the outcome of the direct appeal. We hold that they did not.

Eight separate issues were raised on direct appeal. Seven of these regarded specific aspects of the trial court’s handling of the trial and had nothing to do with the catalogue in question. In no way can the information contained in the catalogue affect the Court’s decision concerning jury instructions, exclusion or inclusion of business records, allegedly prejudicial comments by the trial judge, or any of the other seven technical questions raised in the appeal. The last issue raised concerned the sufficiency of evidence to sustain the verdict. Only here could the government’s misquotations affect the Court’s decision.

The Court held “the record compels the Court to hold that the question of the defendant’s guilt or innocence was properly submitted to the jury.” 431 F.2d at 301. With this decision we agree. Given the state of the record we do not believe that there was a close question of guilt or innocence where one piece of evidence, distorted by the government, could affect the Court’s view of the adequacy of the evidence to sustain the verdict.

Eleven persons were found by the jury to have been defrauded by the defendant. Of these eleven, nine testified that they did not receive the catalogue in question prior to placing their order. They testified they relied variously on advertisements, form letters, brochures or personal conversations with the defendant. The record shows that the defendant used brochures, form letters and advertisements placed in nationally circulated magazines which claimed the superchargers were “easily installed”. The fact that the defendant’s catalogue might have contradicted these other sources of information is irrelevant.

The remaining two complaining witnesses received the catalogue but did not rely on it. One relied on a personal conversation with the defendant at his manufacturing plant in Orlando, the other relied on form letters he received. We believe that it was a jury question whether this reliance was reasonable and sufficient to amount to one of the elements of fraud.

The catalogue we are concerned with was both a government and a defense exhibit — and the relevant passages misquoted in the government brief were correctly read to the jury. There is no reason to believe that the jury lacked correct information. The record shows that the catalogue was generally sent only to customers who requested it and who prepaid one dollar. Nothing in the record leads us to believe that the cata-logue which correctly stated the contents of the casting kits and the amount of additional equipment needed to use the kit was supplied to every customer, or that potential customers unreasonably relied on other misrepresentations when they had the alternative of ordering the catalogue, but failed to do so.

In short, we find the record amply sustains the jury verdict. However this Court might have been misinformed concerning one piece of evidence, that piece of evidence was largely irrelevant to the mass of evidence adduced at trial. Our view initially that the verdict was a jury question not to be disturbed was, we believe, a correct one, and one unaffected by errors in the government’s brief.

The judgment is affirmed.

      . This does not, of course, minimize the seriousness of the failure of the government counsel to be absolutely certain that critical quotations from a defendant’s documents are word-perfect,


source: Caselaw Access Project

author: ROSS, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Dallas Ray DELAY, Appellant.
    No. 74-1127.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 12, 1974.
    Decided July 30, 1974.

      John Gianoulakis, Kohn, Shands, Elbert, Gianoulakis & Giljum, St. Louis, Mo., for appellant.
    Richard E. Coughlin, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before LAY, HEANEY and ROSS, Circuit Judges.
   ROSS, Circuit Judge.

This is an appeal from a jury verdict finding Dallas Ray Delay guilty of one count of bank robbery in violation of 18 U.S.C. § 2113(a) and three counts of killing a person in an attempt to avoid apprehension for the offense of bank robbery in violation of 18 U.S.C. § 2113(e). On appeal, Delay designates various assignments of error. We affirm the judgment of conviction, but vacate the sentences under Counts I, II and III of the indictment.

The evidence indicates that Delay abducted the president of the Bank of Grandin, Missouri, Mr. Bob Reid Kitter-man, and his wife and daughter. Holding Mrs. Kitterman and the daughter as hostages, Delay strapped an explosive device to the back of Mr. Kitterman and directed him to go to the bank, withdraw funds, and return to the abduction site. While withdrawing the funds from the bank safe deposit box, Kitterman made certain declarations to bank employees indicating the nature of the coerced withdrawals, the presence of the electronic device on his person, and the fact of the detention of his wife and daughter. After placing $10,850 into a bank bag, Kitterman returned to the wooded area where his wife and daughter were being detained by Delay. The bodies of the three Kittermans were found approximately one and one-half hours later tied to trees in a wooded area outside of town. Each had been shot in the head.

Double Jeopardy

Delay first asserts that by this federal prosecution, he has twice been put in jeopardy for the same offense in violation of his fifth amendment rights. Delay had previously pleaded guilty to three counts of first degree murder in Missouri state court in violation of Y.A. M.S. 559.010. He received therefor three consecutive life sentences under V.A.M.S. 559.030.

That state conviction, however, does not bar a subsequent federal prosecution. United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 (1922) held that where two sovereign-ties had prohibited the same acts within their constitutional authority and each was punishing a breach of its prohibition, a subsequent federal prosecution did not violate the fifth amendment:

We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory. Each may, without interference by the other, enact laws to secure prohibition, with the limitation that no legislation can give validity to acts prohibited by the amendment. Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.
It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.

Id. at 382, 43 S.Ct. at 142. Lanza is still good law today. Indeed, in Abbate v. United States, 359 U.S. 187, 195, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), the Supreme Court specifically declined to overrule Lanza. The justification for the continued force and vitality of Lanza was expressed:

[I] f the States are free to prosecute criminal acts violating their laws, and the resultant state prosecutions bar federal prosecutions based on the same acts, federal law enforcement must necessarily be hindered. But no one would suggest that, in order to maintain the effectiveness of federal law enforcement, it is desirable completely to displace state power to prosecute crimes based on acts which might also violate federal law. This would bring about a marked change , in the distribution of powers to administer criminal justice, for the States under our federal system have the principal responsibility for defining and prosecuting crimes.

Id. at 195, 79 S.Ct. at 671. Accordingly, Delay’s prior Missouri conviction did not bar the instant prosecution.

Proof of Intent

Delay’s next assignment of error concerns the government’s alleged failure to prove the specific intent necessary for the commission of an offense under 18 U.S.C. § 2113(e). Delay argues that the only evidence of his intent to kill to avoid apprehension was an extrajudicial admission made prior to the trial in federal court but subsequent to his conviction in state court. Unless corroborated by independent evidence, he maintains, that evidence is insufficient to prove intent. As authority for that position, he relies on Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954) and Gay v. United States, 408 F.2d 923 (8th Cir.), cert. denied, 396 U.S. 823, 90 S.Ct. 65, 24 L.Ed.2d 74 (1969). Delay’s argument, however, is deficient.

The corroboration requirement in federal court is explicated in Wong Sun v. United States, 371 U.S. 471, 489-490 n. 15, 83 S.Ct. 407, 418, 9 L.Ed.2d 441 (1963):

Where the crime involves physical damage to person or property, the prosecution must generally show that the injury for which the accused confesses responsibility did in fact occur, and that some person was criminally culpable. A notable example is the principle that an admission of homicide must be corroborated by tangible evidence of the death of the supposed victim. See 7 Wigmore, Evidence (3d ed. 1940), § 2072, n. 5. There need in such a case be no link, outside the confession, between the injury and the accused who admits having inflicted it. But where the crime involves no tangible corpus delicti, we have said that “the corroborative evidence must implicate the accused in order to show that a crime has been committed.” [Smith v. United States] 348 U.S. [147], at 154 [75 S.Ct. 194, 99 L.Ed. 192]. Finally, we have said that one uncorroborated admission by the accused does not, standing alone, corroborate an unverified confession. United States v. Calderon, 348 U.S. 160, 165 [75 S.Ct. 186, 99 L.Ed. 202].

Proof of injury and criminality, then, are sufficient corroborative elements for crimes which have tangible corpus delic-ti. Wong Sun v. United States, supra, 371 U.S. at 489 n. 15, 83 S.Ct. 407. Accord, United States v. Stabler, 490 F.2d 345 (8th Cir. 1974). Only where there is no tangible evidence of the crime is it necessary to personalize the corroboration and “implicate the accused.” Wong Sun v. United States, supra, 371 U.S. at 489 n. 15, 83 S.Ct. 407.

In Gay v. United States, supra, upon which Delay relies, the essential element of intent to defraud depended entirely on an extrajudicial admission of the defendant. However, since fraud is criminal only because of a state of mind, it involves no tangible corpus delicti. Under Wong Sun it was therefore necessary that the corroborative evidence implicate the accused. This could have been accomplished only by demonstrating Gay’s state of mind through independent evidence. Gay v. United States, supra, 408 F.2d at 930. However, Gay is inapposite to the crime here. Here there is a tangible corpus delicti, and the proof of the dead bodies with gunshots in their temples sufficiently established the injury specified in the crime and evidence of somebody’s criminality. In other words, Delay’s extrajudicial admissions were sufficiently corroborated without any independent proof of his state of mind.

However, even assuming independent proof of intent was necessary to corroborate the confession of homicide, which it is not, such proof is present on the facts of this case. Intent is provable by indirect or circumstantial evidence. United States v. Lawson, 483 F.2d 535, 537 (8th Cir. 1973), cert. denied, 414 U.S. 1133, 94 S.Ct. 874, 38 L.Ed.2d 757 (1974); Gay v. United States, supra, 408 F.2d at 929 (and cases cited therein). Here Delay announced his plan to perpetrate the bank robbery. He mentioned to at least one of his associates the names of one of the victims. He discussed the electronic explosive device. He purchased a pistol, later determined to be the murder weapon. The bodies were discovered within a few hours of the actual withdrawal of the funds. And the execution style of the shootings indicated deliberate acts. These factors are sufficient corroborative circumstantial evidence of specific intent to commit murder in an attempt to avoid apprehension for the crime. They negate an argument that the killings may have been in self-defense or that they were committed in haste or anger.

The confession, thus corroborated and if otherwise admissible, may permissibly have been cumulated with other evidence of intent discussed above. The whole of that evidence was sufficient for the júry to find intent. Thus, it was not error for the court to overrule Delay’s motion for acquittal on this ground.

Admissibility of Confession

Delay next asserts that the extrajudicial admissions were themselves improperly admitted. These statements were made on three different occasions to a newspaper man, Royce, who was a part-time, unpaid, deputy sheriff, a former St. Louis policeman, and foreman of the coroner’s jury. Delay argues that Royce must be considered a law enforcement officer to which the dictates of Miranda are applicable. Royce’s noncompliance with the dictates of Miranda, he maintains, renders those statements inadmissible.

However, a close examination of the record vitiates this argument. At a suppression hearing prior to trial, Royce and the sheriff explained the nature of Royce’s duties as a deputy sheriff. Royce was approximately one of thirty unpaid volunteers in a sparsely populated rural county. He became a deputy sheriff when the instant case arose because at that time a press secretary was needed. The only time he ever worked as a deputy sheriff was when he occasionally took pictures or searched the rivers for drowned bodies. Royce’s sole interest in interviewing Delay was as a newspaperman attempting to get a story. At their first meeting in the courthouse there was no discussion about the crime. Rather Royce attempted to develop a rapport with Delay. Before their second meeting, also at the courthouse, Delay was surrounded by a crowd of newsmen. The sheriff asked Delay with whom he would like to talk, and Delay responded, “Royce.” The sheriff made available a small room for their conversation which lasted five or ten minutes. Royce was dissatisfied with the interview and broke it off. No promises were made nor was any coercion exercised. Due to his dissatisfaction with the interview, Royce undertook to arrange another meeting after Delay had been incarcerated in the state penitentiary and was serving the sentence imposed by state court. During the last interview, Delay disclosed that he and a confederate had determined to kill Kit-terman as a part of the original plan. Throughout the interview, Delay was calm. He refused to answer only three questions which were not thereafter pursued by Royce. Also, during the last interview, Royce was accompanied by Sheriff Dawes who knew prison personnel and who thought he could help Royce obtain admittance to the penitentiary to conduct the interview. The sheriff offered to leave during the interview. However, Delay expressly told the sheriff that he could stay if he so desired.

The applicable rule is that :

[t]he prosecution may not use statements, whether exculpatory or incul-patory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean 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. (Emphasis supplied.)

Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). After a review of the record we cannot say that Royce was acting as a law enforcement officer nor that Delay perceived him as such. Moreover, we note that Delay was given his Miranda rights when first subjected to police interrogation under the state arrest and subsequently on several occasions when interrogated, while incarcerated, by federal law enforcement officers. Miranda deals with

[t]he protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way. (Emphasis supplied.)

Miranda, supra, 384 U.S. at 477, 86 S.Ct. at 1629. A confession is not necessarily' invalid because the Miranda warning is not repeated in full each time the interrogation process is resumed after an interruption. Miller v. United States, 396 F.2d 492, 496 (8th Cir. 1968), cert. denied, 393 U.S. 1031, 89 S.Ct. 643, 21 L.Ed.2d 574 (1969). In each case, the ultimate question is: did the defendant with a full knowledge of his legal rights, knowingly and intentionally relinquish them ? After a review of the record, we believe that there was sufficient evidence to satisfy the trial judge by a preponderance of the evidence that the confession was voluntarily rendered. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).

Change of Venue

Delay also alleges that the trial court abused its discretion in refusing to grant a change of venue because of pretrial publicity. He maintains that the pretrial publicity here was such as to prejudice his presumption of innocence before the jury.

However, “[i]t is not required . that the jurors be totally ignorant of the facts and issues involved.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). Just because

[t]here has been widespread or even adverse publicity is not in itself grounds to grant a change of venue. [A]n important case draws public attention through “swift, widespread and diverse methods of communication” and hardly any prospective juror “will not have formed some impression or opinion as to the merits of the case.” The proper test is whether the prospective juror “can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”

United States v. McNally, 485 F.2d 398, 403 (8th Cir. 1973) (citations omitted). Thus, only where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, should the judge continue the case until the threat abates, or transfer it to another county not so permeated with publicity. Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). Each case of course must be decided on the facts, and ordinarily the defendant has the burden of showing any essential unfairness in the adjudicatory process unless the totality of the circumstances raises the probability of prejudice. Sheppard v. Maxwell, supra, 384 U.S. at 352, 86 S.Ct. 1507; Estes v. Texas, 381 U.S. 532, 542, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); United States v. McNally, supra, 485 F.2d at 402. An examination of the voir dire of the veniremen discloses that an impartial jury was selected. The failure to grant the motion for a change of venue was not an abuse of discretion by the trial court.

Peremptory Challenge

Delay assigns error in the exclusion by the prosecutor of all blacks from the jury. Although white, Delay has the right to challenge such exclusions. Peters v. Kiff, 407 U.S. 493, 500, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972). However, a single instance of exclusion of all blacks from a jury is not grounds for reversal. Swain v. Alabama, 380 U.S. 202, 222, 85 S.Ct. 824, 837, 13 L.Ed.2d 759 (1965).

The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court.

Id.

In United States v. Pollard, 483 F.2d 929, 930 (8th Cir. 1973), cert. denied, 414 U.S. 1137, 94 S.Ct. 882, 38 L.Ed.2d 762 (1974), we said:

[t]he presumption protecting the prosecutor may be overcome, and a prima facie case of discrimination established, by proof of a prosecutor’s systematic exclusion of blacks from petit juries over an extended period of time.

Delay argues that the government should bear the burden of disproving systematic exclusion. Not only is there no authority for that position, but there is direct authority to the contrary in our circuit. Little v. United States, 490 F.2d 686, 687-688 (8th Cir. 1974); United States v. Pollard, supra, 483 F.2d at 930. No such proof has been proffered in the present case.

Voir Dire

The sixth amendment guarantees to the accused the right to a trial by an impartial jury. In implementing this constitutional assurance during the voir dire of the jurors, a judge must afford a fair determination that no prejudice has been fostered. Cf. Aldridge v. United States, 283 U.S. 308, 315, 51 S.Ct. 470, 75 L.Ed. 1054 (1931). He must determine whether the nature" and strength of the opinion formed (if any) are such as in law necessarily raise a presumption of partiality. Reynolds v. United States, 98 U.S. 145, 156, 25 L.Ed. 244 (1878). Toward this end, he is vested with wide discretion. Aldridge v. United States, supra, 283 U.S. at 310, 51 S.Ct. 470. Fed.R.Crim.P. 24(a). Yet when probing an area of prejudice, the court is not required “to put the question in any particular form, or to ask any particular number of questions on the subject, simply because requested to do so by petitioner.” Ham v. South Carolina, 409 U.S. 524, 527, 93 S.Ct. 848, 850, 35 L.Ed.2d 46 (1973). Similarly, if the court permits counsel to conduct the voir dire, he need not permit unlimited inquiry into a specific area of prejudice.

The trial court conducted a short preliminary examination of the veniremen. Thereafter, defense counsel, in an excellent and thorough examination, probed other areas of prejudice. The court curtailed questions only three times. Each of those questions related to questions of law and were properly within the scope of a court’s instructions rather than voir dire. No abuse of discretion existed in the court’s limitation of the voir dire.

Admission of Photographs

During the course of the government’s case, photographs depicting the bodies of the three victims were admitted into evidence. Delay argues that those photographs served to aggravate the possibility of prejudice in the minds of the jurors. The admission of photographs is a matter within the sound discretion of the trial court. United States v. Leach, 429 F.2d 956, 962 (8th Cir. 1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971). These photographs had probative value in that they were material to establishing the corpus delicti. Moreover the danger of possible prejudice was minimal. The photographs were distance shots, not inflammatory, and thus could not properly be said to stir up passion or unduly excite prejudice and so lead the jury to act upon outrage instead of competent proof. No abuse of discretion existed in the admission of the photos into evidence.

Instructions

Delay assigns error in the court’s refusal of his proposed instruction:

* * * -x- * -X-
You are further instructed by the Court that the government must prove defendant’s purpose of avoiding or attempting to avoid apprehension for the commission of the offense charged in Count I by evidence other than defendant’s own statements made after the commission of the crime with which he has been charged.

For the reasons outlined in a previous section of this opinion, the instruction is a misstatement of the law. Delay was therefore not entitled to the instruction.

Closing Argument

During the closing arguments, the court sustained a government objection to defense counsel’s attempt to mention the state murder prosecution and the fact that Delay was already serving three consecutive life sentences. Throughout the trial the court and counsel had taken precautions not to mention the state guilty pleas lest those confessions of guilt influence the jury’s assessment of guilt in the federal prosecution. The court's ruling on the objection was not error.

Also during closing argument the court overruled an objection to the government’s discussion which urged conviction on the basis that such a criminal should not be turned loose on society. The trial court has broad discretion in controlling closing arguments. United States v. Pruitt, 487 F.2d 1241, 1246 (8th Cir. 1973); Bryant v. United States, 462 F.2d 433, 436 (8th Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 271, 34 L.Ed.2d 220 (1972); United States v. Turchick, 451 F.2d 333, 339 (8th Cir. 1971). Absent an abuse of discretion the court’s ruling will not be overturned. Here, although it was proper to avoid mentioning the fact of the state confinement in the penitentiary, it was improper for the government to impliedly misrepresent the fact of the defendant’s freedom. The government may permissibly argue for conviction based upon the facts presented to the jury. Yet it may not misrepresent the truth of collateral matters. It must confine itself to the evidence subject to the jury’s deliberations.

However, although such an argument was improper, it is not of the magnitude to comprise prejudicial error. Based upon “our own reading of the record and on what seems to us to have been the probable impact [of the statement] on the minds of an average jury” we find the prosecutor’s argument was harmless error. Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Under Fed.R.Crim.P. 52(a) it “shall be disregarded.”

Sentencing Errors

Finally Delay assigns errors in his sentencing and the excessiveness thereof, which, on the § 2113(a) count, committed him to 20 years imprisonment and which, on each of the three counts under § 2113(e), committed him to consecutive 100 year terms of imprisonment.

The argument pertaining to sentencing error has two facets. First is the question of whether a violation of § 2113(a) (bank robbery) is, under applicable case law, merged into the greater crime of murder committed in attempting to avoid apprehension for the offense of bank robbery, in violation of § 2113(e). Without determining whether the offenses are technically “merged,” we conclude under the rules of Jones v. United States, 396 F.2d 66 (8th Cir. 1968), cert. denied, 393 U.S. 1057, 89 S.Ct. 695, 21 L.Ed.2d 697 (1969), “that 18 U.S.C.A. § 2113 prohibits the imposition of more than one sentence for the violation of its several provisions.” Id. at 69. See also Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961); Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957); Sawyer v. United States, 312 F.2d 24 (8th Cir. 1963); Hewitt v. United States, 110 F.2d 1 (8th Cir.), cert. denied, 310 U.S. 641, 60 S.Ct. 1089, 84 L.Ed. 1409 (1940). But see Clark v. United States, 281 F.2d 230 (10th Cir. 1960). The sentence under § 2113(a) therefore shall be vacated.

The second part of this argument relates to whether or not Delay was properly convicted and sentenced for each of the three murders under three separate counts of the indictment, each of which alleged a separate violation of 18 U.S.C. § 2113(e). We conclude that the rationale prohibiting the pyramiding of violations of the various sections of § 2113 also prohibits the pyramiding of offenses on the basis of separate victims of the crime. The crime which Congress has defined and for which it has provided punishment is that of bank robbery and the various sections of the statute merely define different degrees of that same crime. The Court of Appeals for the District of Columbia has dealt with this same problem in connection with an indictment charging the defendant in four counts with robbery of four different tellers of the same bank during the same robbery. In that case the court stated as follows:

Although there seem to be no cases precisely on point, we cannot agree with the Government’s position that the robbery of each teller constitutes a separate “taking” within the meaning of the statute. While it may be true that under general theft and robbery statutes, a defendant may be punished under separate counts for taking money from different people in the same transaction, the statute here is not for theft or robbery against the person generally. The crime is bank robbery, and the statute is entitled “Bank Robbery and Incidental Crimes.” There is no doubt here that only one transaction took place and that only one bank was robbed. Compare United States v. Hopkins, supra [150 U.S.App.D.C. 307, 464 F.2d 816], at 823. Even assuming that the intent of the statute in this regard is not perfectly clear, the Supreme Court has held that, unless a statutory intent to permit multiple punishments is stated “clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses”. Bell v. United States, 349 U.S. 81, 84, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955). See also Heflin v. United States, 358 U.S. 415, 419-420, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Ladner v. United States, 358 U.S. 169, 177-178, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958); United States v. Universal C.I.T. Corp., supra.

United States v. Canty, 152 U.S.App.D.C. 103, 469 F.2d 114, 126-127 (1972). See also United States v. Faleafine, 492 F.2d 18, 20 (9th Cir. 1974); United States v. Hopkins, 150 U.S.App.D.C. 307, 464 F.2d 816, 823 (1972); Dimenza v. Johnston, 131 F.2d 47, 48 (9th Cir. 1942).

The sentences under Counts II and III of the indictment must therefore be vacated while the sentence under Count IV will be permitted to stand.

Finally, Delay argues that his sentence violates the eighth amendment proscription against cruel and unusual punishment. The federal courts have uniformly agreed that “a sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review.” United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972). This circuit has generally adhered to the principle that a sentence within such statutory limits would not be disturbed if the district court has exercised discretion in imposing the sentence. United States v. Smallwood, 443 F.2d 535, 543 (8th Cir.), cert. denied, 404 U.S. 853, 92 S.Ct. 95, 30 L.Ed.2d 93 (1971). But see Woosley v. United States, 478 F.2d 139, 143 (8th Cir. 1973). We do not find a sentence of 100 years imprisonment to be excessive for such a heinous crime involving a bank robbery and murder.

See Jones v. United States, supra, 396 F.2d at 69; United States v. Jakalski, 267 F.2d 609, 612 (7th Cir. 1959), cert. denied, 362 U.S. 936, 80 S.Ct. 759, 4 L.Ed.2d 751 (1960).

For the reasons hereinbefore expressed, the judgment of conviction is affirmed. The sentences on Counts I, II and III are hereby vacated.


author: BARRETT, Circuit Judge.

text:
    Michael E. PAULDINO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-1748.
    United States Court of Appeals, Tenth Circuit.
    Argued July 12, 1974.
    Decided Aug. 7, 1974.
    Rehearing Denied Sept. 9, 1974.
    See also 10 Cir., 443 F.2d 1108.
    Donald P. MacDonald, Denver, Colo. (James C. Fattor, Denver, Colo., on the brief), for petitioner-appellant.
    Richard Slivka, Asst. U. S. Atty., Denver, Colo. (James L. Treece, U. S. Atty., Denver, Colo., on the brief), for respondent-appellee.
    Before LEWIS, BREITENSTEIN and BARRETT, Circuit Judges.
   BARRETT, Circuit Judge.

Michael Pauldino appeals from the denial of his habeas corpus application pursuant to 28 U.S.C.A. § 2255.

Pauldino was convicted on March 31, 1971 of interstate travel with intent to participate in gambling in violation of 18 U.S.C.A. § 1952. During the trial the Government presented evidence showing that Pauldino was in the business of gambling, including evidence that: during 1966 he had stated under oath that he was a professional gambler; in September of 1966 he traveled to Nevada for the purpose of gambling; and in May of 1966 he had engaged others in a gambling affair while flying from Seattle, Washington, to Denver, Colorado. The Government also introduced as an admission (over Pauldino’s objection that it was not relevant and had not been properly acquired), a copy of Pauldino’s 1966 federal income tax return which stated his occupation as “gambler.”

On appeal we affirmed. United States v. Pauldino, 443 F.2d 1108 (10th Cir. 1971), cert. denied, 404 U.S. 882, 92 S.Ct. 204, 30 L.Ed.2d 163 (1971). Therein we observed:

Appellants further argue that it was error to admit the returns into evidence because, according to appellants, the jury may have inferred tax evasion due to the fact that the income reported on their returns was at odds with the evidence of their gambling winnings in 1966 .... Brid-well and Pauldino’s returns were admitted solely to show that on appellants’ respective 1966 returns each claimed that his occupation was gambling. Income reported on their returns was not referred to at trial, and in fact the reported incomes on the exhibits were not insubstantial so as to immediately suggest tax evasion.

443 F.2d at 1113.

Pauldino filed a habeas corpus application on July 20, 1973, alleging for the first time that the admission of his 1966 return was violative of his Fifth Amendment right against self-incrimination. In denying his application, the Trial Court found it unnecessary to consider Pauldino’s constitutional argument in light of the following language which the Court quoted from our previous opinion:

Representative of the evidence establishing this were appellants’ respective tax returns for 1966 which acknowledged gambling as each’s occupation. In addition, there was a wealth of undisputed testimony concerning appellants’ gambling forays across the country, even extending into Canada. Suffice it to say that it was well established that appellants’ trip to Nebraska was not an isolated gambling incident but was just one more roll of the dice in their continuing effort to fleece the lambs of the land.

Tr. Vol. II, p. 26.

The sole issue presented by Pauldino here is whether the admission of his 1966 federal income tax return for the single purpose of establishing his occupation as that of a “gambler” was error violative of his Fifth Amendment rights. We hold that it was not.

In support of Pauldino’s contention that the admission of the tax return was violative of his Fifth Amendment right against self-incrimination, he cites Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968). We considered a similar argument in United States v. Reeves, 425 F.2d 1063 (10th Cir. 1970). In distinguishing the cases above cited from our holding in Reeves, supra,, we there noted that the federal statutes involved in the cited cases required registrations which, in turn, “all required information about activities in an area ‘permeated with criminal statutes’ ” and applied to groups “inherently suspect of criminal activities.” (Emphasis supplied).

Such is not the case here. We are here concerned only with a federal statute requiring the filing of an income tax return. That, in and of itself, does not create any inherent suspicion of criminal activities nor does it apply to groups “inherently suspect.”

The filing of federal income tax information does not violate Fifth Amendment rights, inasmuch as such information is offered in a non-accusatorial setting. United States v. Smith, 484 F.2d 8 (10th Cir. 1973). And it is well established that the United States has the right to gather information for the collection of revenue. Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971). That right correlates with registration requirements rooted in regulatory statutes designed to protect and promote the public safety which have been held not viola-tive of the privilege against self-incrimination. California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971); United States v. Nelson, 448 F.2d 1304 (10th Cir. 1971). The fact that such reports and/or the information contained therein may later appear in court to the detriment of the declarant is not controlling. As the Court noted in Byers:

In each of these situations there is some possibility of prosecution — often a very real one — for criminal offenses disclosed by or deriving from the information that the law compels a person to supply. Information revealed by these reports could well be “a link in the chain” of evidence leading to prosecution and conviction. But under our holdings the mere possibility of incrimination is insufficient to defeat the strong policies in favor of a disclosure called for by statutes like the one challenged here.

402 U.S. at 428, 91 S.Ct. at 1538.

Under By.ers, supra, self reporting, which is indispensable to the fulfillment of a legitimate governmental goal, and not designed to produce incriminating answers, does not violate Fifth Amendment rights.

We are persuaded by the logic of certain opinions which have recognized the necessity and propriety of this type of disclosure. In Stillman v. United States, 177 F.2d 607 (9th Cir. 1949), the Court held that the admission of certified copies of tax returns reporting illicit income did not compel defendants to testify against themselves in violation of their constitutional rights. This position was recently re-affirmed in Garner v. United States, 500 F.2d 228 (9th Cir. 1974). In Garner, supra, the Court held that the questions asked on a tax return are completely neutral so that only one filing a return knows whether his answers will be incriminating, and that, under these circumstances, he has a choice of claiming his privilege or answering the questions. Further, the Court held that the Fifth Amendment right against self-incrimination is a right which cannot be invoked retrospectively, but must be claimed when incriminating information is requested. In reaffirming the position it announced in Stillman, supra, the Garner Court quoted with favor from United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927):

If the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all. We are not called on to decide what, if anything, he might have withheld. Most of the items warranted no complaint. It would be an extreme if not an extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in a crime. But if the defendant desired to test that or any other point he should have tested it in the return so that it could be passed upon.

P. 238.

In Shushan v. United States, 117 F.2d 110 (5th Cir. 1941), it was held that the utilization of tax returns to show the execution of a mail scheme is proper because the maker of the return is under oath and does not have to disclose any fact which may incriminate himself. Similarly, in United States v. Silverman, 449 F.2d 1341 (2nd Cir. 1971), cert. denied, 405 U.S. 918, 92 S.Ct. 943, 30 L.Ed.2d 788 (1972), it was held that records “required to be kept pursuant to a reasonable regulatory scheme have ‘public aspects’ and may be examined for evidence of criminal conduct.”

In view of the substantial authorities supportive of admission, with which we agree, and the “wealth” of other evidence which established Pauldino’s occupation as a gambler, we hold that the admission of the copy of his 1966 federal income tax return was proper.

Affirmed.

      . 18 U.S.C.A. § 1952 provides in part:
      (a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to—
      (1) distribute the proceeds of any unlawful activity; or
      (2) commit any crime of violence to further any unlawful activity; or
      (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, . . .
      (b) As used in this section “unlawful activity” means (1) any business enterprise involving gambling, ....


author: COLEMAN, Circuit Judge.

text:
    James S. CAREY, Plaintiff-Appellee-Cross Appellant, v. GREYHOUND BUS CO., INC., et al., Defendants-Appellants-Cross Appellees.
    No. 73-3133.
    United States Court of Appeals, Fifth Circuit.
    Sept. 26, 1974.

      C. Paul Barker, New Orleans, La., for Amalgamated Transit.
    Martin F. Burns, Chicago, 111., Wm. F. Kirsch, Jr., Maurice Wexler, Memphis, Tenn., Breard Snellings, New Orleans, La., for Greyhound Bus.
    Steven R. Plotkin, New Orleans, La., for defendants-appellants.
    Louis A. Gerdes, Jr., New Orleans, La., for plaintiff-appellee.
    Before JONES, THORNBERRY and COLEMAN, Circuit Judges.
   COLEMAN, Circuit Judge.

STATEMENT OF FACTS

This suit was instituted by James S. Carey, appellee and cross-appellant, both individually and as a representative of a class of all others similarly situated, against Greyhound Lines Inc., Local 1174 Amalgamaged Transit Union, and Local 275 of the New Orleans Building Maintenance Union. The suit was brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, alleging racial discrimination in employment. Carey seeks an injunction preventing defendants from interfering with his rights to equal employment opportunities, a revised seniority system, back pay and attorney’s fees.

FACTS

The case was tried solely on stipulation of facts, exhibits, and memoranda.

Appellant Greyhound operates terminals in Mobile, Montgomery, New Orleans, and Baton Rouge, which constitute one seniority district for employment purposes. Within this district, Greyhound’s terminal employees are grouped into two classes; class A consists of agents and class B of porters. All Greyhound employees in the district are represented by Local 1174, except that class B employees in New Orleans are represented by Local 275. Prior to 1964 a class B employee was not allowed to bid on a class A vacancy. In November of 1964, however, Greyhound unilaterally adopted the policy of allowing a class B employee to bid on a class A vacancy if it had not been bid on by a class A employee. Once hired into class A and thus coming within representation by Local 1174, the former class B employee’s seniority is determined from the date he was hired into class A — not from the date he began working for Greyhound as a class B terminal employee. Former New Orleans class B employees who are awarded jobs in class A may retain their seniority in Local 275 for 90 days.

Plaintiff Carey began working for Greyhound in 1957 as a class B porter. For short intervals between 1966 and 1968 he held- agent’s positions (which are class A jobs), but each time was “bumped” back to a class B job by a senior Local 1174 member. He has held a class A job from July 3, 1968, to the present, and maintains seniority with Local 1174 from July 3, 1968.

The District Court found that pre-Act discrimination existed, and that “a causal nexus exists between past discrimination on the part of Grehound and the seniority system clearly prejudicial to plaintiff”. As relief, Judge Boyle enjoined the defendants from denying Carey his seniority computed from the date of his original employment with Greyhound. This resulted in substituting plant seniority for the present system of departmental or union seniority. The District Court also granted attorney’s fees and special damages (which had been stipulated to be $8000 and $500 respectively) against the defendants in so-lido, and denied Carey’s request for back pay. The three defendants filed notices of appeal, alleging that they had not violated Title VII. The plaintiff below then cross appealed, seeking a reversal of the District Court’s dismissal of the class action and denial of back wages for himself and the class.

ANALYSIS

Appellants Greyhound and Local 1174 appeal the District Court’s decision that they are in violation of Title VII of the Civil Rights Act of 1964. Greyhound asserts that they are perfectly willing to recognize the date of employment as the appropriate seniority date but claim they are powerless to unilaterally change the agreements between themselves and two unions, both of which are certified by the National Labor Relations Board. They defend that they have opened bidding on class A vacancies to class B employees, and point out that if plaintiff had not passed up earlier opportunities to go from class B to class A, he would have been receiving the maximum wage in the express agent category by the time he filed his first complaint with EEOC.

(1) Greyhound denies they are in violation of Title VII.

There is no doubt that statistical evidence is accorded great weight in “practice or pattern” discrimination cases, Ochoa v. Monsanto Co., 5 Cir., 1973, 473 F.2d 318, citing Rowe v. General Motors, 5 Cir., 1972, 457 F.2d 348 and United States v. Jacksonville Terminal Co., 5 Cir., 1971, 451 F.2d 418, cert. denied, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972).

In the case at bar, between the year 1936 and the effective date of the Civil Rights Act of 1964, Greyhound in its New Orleans terminal hired whites exclusively into the more favorable class A positions while it hired blacks exclusively into the less favorable class B positions. However, pre-Act racial discrimination without post-Act effects does not establish a per se violation of Title VII, United States v. Jacksonville Terminal Co., supra.

Under the present seniority system, class B employees cannot compete against class A employees for the more favorable class A positions. A class B employee can only get a class A job when no class A employee bids on it. Once a class B employee obtains a class A job, his advancement in class A is impeded in that he loses the seniority acquired with Greyhound while in class B. His seniority runs only from the time he entered class A. When a causal nexus exists between the past discrimination and the challenged present condition of employment (not justified by some “business necessity” which itself complies with Title VII), the courts have held that the present condition violates Title VII. Peters v. Missouri-Pacific Railroad Co., 5 Cir., 1973, 483 F.2d 490. See also Local 189, infra.

The facts in the case sub judice are similar to those in Local 189, United Papermakers and Paperworkers v. United States, 5 Cir., 1969, 416 F.2d 980, cert. denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970). There, jobs were organized within “lines of progression”, and until May, 1964, the Company segregated these lines of progression by race. Black Local 189-A had jurisdiction over the less desirable jobs, while white Local 189 had jurisdiction over all others. Promotion within each line was determined by seniority in the job slot below. Time worked in the mill did not count.

The lines of progression were merged in 1966, but the Company continued to award promotions according to job seniority. As a result, blacks had no seniority in bidding for formerly white jobs except as against each other and new white employees. The United States brought suit against the employer and unions to set aside job seniority in any form.

Writing in Local 189, Judge Wisdom held the fact that the present seniority system appears to be neutral did not prevent a finding that the system violates the Civil Rights Act of 1964 if the inevitable effect is to cut into the employee’s present right not to be discriminated against. In correcting the seniority system so as to comply with the Civil Rights Act of 1964, the Court construed the Act to prohibit ■ future awarding of vacant jobs on the basis of a seniority system that locks in prior racial classification. White incumbent workers, however, were not to be bumped out of present positions by blacks with greater plant seniority. The fact that the employer persisted in utilizing a seniority system that gave preference to whites (hired before the merger of formerly segregated progression lines) to determine priority for filling vacancies, after its racial implications became known to the employer, indicated to the Court that the practice was intended to deny full exercise of applicable rights and justified the Attorney General’s enforcing the Civil Rights Act of 1964. The Court concluded that specific intent need not be proved. Intent can be inferred if the discriminatory practice continues after racial implications have become known. Progression would still be job by job, but seniority would be determined by counting time in the mill rather than time in the job slot below.

See also:

Local 189, United Papermakers & Paper workers, supra, where present seniority system, which gave priority to worker who had worked the longest in job slot below vacancy and which had been carried over from time when progression lines had been segregated, had effect of presently discriminating against employees on ground of race, present seniority system should be replaced. Under new system, no employee would have right to a job he could not perform properly and progression would still be job by job but seniority would be determined by counting time in the mill rather than time in job slot below vacancy.
United States v. Jacksonville Terminal, supra. When seniority systems in use usually began when the employee started work in the craft and class to which he was regularly assigned; prohibited interclass transfers within a single craft; and in a technical sense locked all employees, black and' white, into certain categories, the Court described this as an unusually strong nexus between discriminatory pre-Act conduct and racially neutral post-Act activity. The Court ordered that in future bidding on vacant jobs outside the worker’s class or craft, terminal (plant-wide) seniority would be used. Once awarded the job, a worker’s seniority in the new job will be his oldest seniority date which he holds on any of the terminal’s seniority rosters in effect at the time of the District Court’s decree.
Rowe v. General Motors, supra. Where present promotion and transfer standards operated to “freeze in” past discrimination, present conditions violate Title VII.

As in Local 189, the pre-Act discrimination and the seniority system in use here combine to hinder advancement by many blacks in defendant’s terminal. The District Court is affirmed on this point.

(2) The Problem of Two Unions.

The employees in the New Orleans Greyhound Terminal are represented either by Local 275 or Division 1174. Class A, which is primarily composed of agents, is represented by Division 1174. Class B, composed of manual laborers, is represented by Local 275. Both unions belong to . separate Internationals, and both are certified by the National Labor Relations Board. Greyhound asserts that it has no objection to the establishment of a common seniority date, but that because two certified NLRB bargaining units are involved, it has no authority to unilaterally effectuate this change.

Until July 3, 1968, Carey was a class B employee for Greyhound in New Orleans, and as such was represented by Local 275. Defendant Local 1174 asserts that it owed Carey no duty while he was a member of another union and contends it would have been a breach of their duty to the other employees they represent to have allowed Carey credit for past service with Greyhound before he came into their bargaining unit. Local 1174 denies that they have ever discriminated against non-whites and alleges that the difference in computing seniority in New Orleans exists as a result of another union representing class B employees, not because of racial discrimination.

The determining issue here is not whether the unions or Greyhound intended to discriminate against Carey and those employees who were at one time in class B. Congress directed the thrust of the Civil Rights Act of 1964 to the consequences of employment practices, not simply the motivation, Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

In addition, union contracts grant no immunity on the subject of racial discrimination. Neither can the employer use the union or unions for a shield. When necessary to insure full compliance with Title VII, a District Court is empowered to eliminate the present effects of past discrimination, Long v. Georgia Kraft, 5 Cir., 1972, 455 F.2d 331. Writing in Peters v. Missouri-Pacific Railroad Co., supra, Judge God-bold said:

“Even if the railroad’s intent in agreeing to and enforcing the challenged employment agreement was a racially neutral, or even benevolent, desire to discharge its legal duty to bargain with the plaintiffs’ representative and to enforce the contract entered into, such intent does not save the agreement from the terms of Title VII if it operates to ‘freeze’ the status quo of prior discriminatory employment practices.”

Plaintiff Carey does not have to prove that either or both of the unions discriminated against black employees. All that need be shown is that the employer discriminated against black employees prior to the passage of the Act and that the present system perpetuates that discrimination. When the employer or union has discriminated in the past, and its present policies renew or exaggerate that discrimination, those policies must yield unless there is an overriding legitimate, non-racial purpose, Local 189, supra. The Civil Rights Act of 1964 imposes on employers — with the assistance and cooperation of labor representatives — an affirmative duty to devise and implement pertinent, objective criteria for determining which applicants for promotion or transfer are qualified to fill particular vacancies, United States v. Jacksonville Terminal Co., supra. As parties to this action, the Unions must accommodate themselves to revisions in their contracts, rules and regulations, necessary to assure compliance with the Act.

(3) Carey passed up earlier opportunities to enter class A.

Greyhound’s final point on appeal is that Carey passed up earlier opportunities to leave his class B job and secure a position within class A. It points out that had Carey bid on a certain class A job which was available in 1966, he could have had it for the asking because the class B employee who eventually got it, one David Cantrelle, had less class B seniority than did Carey. If Carey had taken this job, which would have required transferring to Baton Rouge, Greyhound alleges he would have been receiving top pay in the express agent category by October, 1969, approximately six months prior to the date he filed his charge with the EEOC. Carey does not address this point in his brief.

This would seem to be irrelevant. It does not address the problem of previously segregated unions, the effect of which is evidenced today by a discriminatory seniority system. Appellant Carey might point out that if he had had the benefit of plant seniority in 1966, he would not have been “bumped” from the agent position he held for two months during that year. Carey and those like him can best be made competitive by affirming the District Court’s order requiring plant seniority.

(4) Back Pay.

The District Judge in the present case did not allow the plaintiff back pay against Greyhound because of what he felt was a good faith belief by Greyhound that it was bound by the collective bargaining agreements with the two unions involved. Back pay against the unions was also denied because the Court felt they had acted in good faith according to what they believed their obligations were under the NLRA.

Several recent Fifth Circuit cases have dealt with the issue of back pay. In Johnson v. Goodyear Tire & Rubber Co., 5 Cir., 1974, 491 F.2d 1364, Judge Gewin wrote that an employer’s good faith and efforts to remedy past discriminatory practices were not a defense to a claim for back pay — “ . back pay awards are not designed to punish the employer but to economically elevate the victims to the status which is rightfully theirs”.

In Pettway v. American Cast Iron Pipe Co., 5 Cir., 1974, 494 F.2d 211, good faith was again rejected as a defense to a claim for back pay. Judge Tuttle viewed back pay as “an integral part of the whole relief which seeks, not to punish the [employer], but to compensate the victim of discrimination”. After considering the “rightful place” doctrine adopted by the courts and the Congressional purpose in adopting Title VII, Pettway holds that the scope of a court’s discretion to deny back pay is narrow. “Once a court has determined that a plaintiff or complaining class has sustained economic loss from a discriminatory employment practice, back pay should normally be awarded unless special circumstances are present.”

The following excerpt from Pettway illustrates the type “special circumstances” Judge Tuttle had in mind:

“The ‘special circumstances’ where an unjust result has prevented an award of back pay have been narrow. The most numerous are sex discrimination suits where conflicting state legislation, which limit work hours or impose weight lifting limits or the like for women employees, require a practice in violation of Title VII. In these cases the courts have properly declined to award back pay because ‘state statutes, like federal ones, are entitled to the presumption of constitutionality until their invalidity is judicially declared.’ Davies Warehouse Co. v. Bowles, 321 U.S. 144, 153, 64 S.Ct. 474, 479, 88 L.Ed. 635 (1944). However, a back pay decree is appropriate in those cases where a limitation is not imposed by a state statute but by the employer, or where the employer is put on notice of a judicial or definitive administrative determination of the invalidity of the state law.”

At p. 254.

In Baxter v. Savannah Sugar Refining Corp., 5 Cir., 1974, 495 F.2d 437, we held that good faith was not a defense to an action for class-wide back pay, reaffirming Johnson and Pettway, supra.

Because the decision to deny back pay was based on the good faith of Greyhound and the unions, the preceding cases appear to mandate a reversal on this point. We remand for judicial determination of the amount of back pay due Carey and that liability, once ascertained, should be jointly assessed against Greyhound and the two unions, as were the attorney’s fees and expenses. A union’s role as a party to a collective bargaining agreement can be legally sufficient to impose back pay liability on the union if the agreement violates Title VII, Guerra v. Manchester Terminal Corporation, 5 Cir., 1974, 498 F.2d 641.

In Johnson v. Goodyear, supra, a panel of this Court upheld an award of back pay against a union that had impermissibly restricted black employees to the labor department by being a party to a collective agreement that imposed departmental seniority. There can be no question here that Division 1174 is patently guilty of an identical violation. We find that the conduct of Local 275, though disguised by a thin veneer of racial neutrality, is equally untenable. Local 275 could not, of course, negotiate directly with Greyhound concerning the job security of the class A employees represented by Division 1174. Nevertheless, at some point Local 275 could have taken the affirmative step to initiate negotiations with Greyhound in an effort to salvage for its own ex-members the seniority they would inevitably and foreseeably lose upon being “bumped” from Division 1174 after ninety days in a class A job. While such a step might have proved unavailing, it would have constituted at least a concerned attempt by Local 275 to soften a blow over which the “bumped” employee had no control. Furthermore, it would have constituted an assertion of the “bumped” employee’s right to bid for the next class A job opening — a right he might have fruitfully exercised had Local 275 actively sought plant seniority for its members, irrespective of the seniority scheme perpetuated by Greyhound and Division 1174. We therefore conclude that the ineffectual passivism manifested by Local 275 in its relations with Greyhound served to facilitate the continuing pattern of racial job discrimination at the New Orleans terminal, and we hold that this facilitation violated plaintiff Carey’s right to equal employment opportunity as guaranteed by Title VIL Cf. Note, Title VII, Seniority Discrimination, and the Incumbent Negro, 80 Harv.L.Rev. 1260,1278 (1967).

In this case, all parties seem to be equally guilty — or guiltless. Greyhound was agreeable to substituting plant seniority but felt it could not do so unilaterally. The unions apparently were acting under what they thought their obligations were under the NLRA. In addition, Division 1174 felt it would be breaching its duty to its other members to allow Carey any additional seniority.

Any award of back pay would apply only to the period of employment after the effective date of Title VII of the Civil Rights Act of 1964, or the statute of limitations, whichever later attached, Pettway, supra, 494 F.2d at 258.

(5) Class Action.

The District Court granted appellee Greyhound’s motion to strike the class action, wherein the plaintiff asserted a right to represent black employees similarly situated at Greyhound Lines’ New Orleans terminal. Greyhound supported its motion to dismiss the class action by demonstrating that the size of the proposed class was 28 and that all members of the class lived in New Orleans or its immediate vicinity. The figure 28 was arrived at by counting the number of blacks presently employed who were originally hired into Local 275, regardless of whether they were still in Local 275 or had since become members of Division 1174.

Appellant Carey contends that Greyhound incorrectly computed the size of the class by not counting the black employee's who quit working for Greyhound after July 2, 1965, the effective date of the Civil Rights Act of 1964. Carey contends the size of the class should be at least 81 and arrives at that figure by adding the 50 blacks who have been hired since July 2, 1965, to the 31 blacks who were hired prior to July 2, 1965, and worked during some time after that date. The difference in the two figures arises because Carey counts some blacks who are no longer employed by Greyhound.

In dismissing the class action, District Judge Boyle did not say what size he found the class to be. His opinion simply states that the class action was denied. A district court’s determination of existence of a proper class, at least with respect to size, is considered final unless abuse is shown. Hill v. American Airlines, 5 Cir., 1973, 479 F.2d 1057. In addition; the trial court’s detailed knowledge of the facts places it in as favorable a position as possible to judge whether joinder is impracticable. Therefore, it is the general rule that the trial court’s decision on this issue is final unless there is an abuse of discretion, or the trial court has applied impermissible legal criteria or standards, Cypress v. Newport News General & Nonsectarian Hospital, 4 Cir., 1967, 375 F.2d 648; Matthies v. Seymour Manufacturing Company, 2 Cir., 1959, 270 F.2d 365. See, also, 3B Moore’s Federal Practice § 23.05. However, these cases must be balanced with the nature and intent of the Civil Rights Act, whose purpose is to provide a broad remedy for all who fit the plaintiff’s class.

Writing in Johnson v. Goodyear, supra, Judge Gewin said:

“Our court has never been confronted with the precise issue of whether a district court should award class-wide back pay, where the class establishes a prima facie case of employment discrimination. It is obvious to us that where employment discrimination has been clearly demonstrated, employees who have been victims of that discrimination must be compensated if financial loss can be established. Title VII racial discrimination claims present an appropriate area in which to require class-wide back pay. The individual discriminatee has been locked into his undercompensated position precisely because he is a member of an unfavored class. To implement the purposes behind Title VII, a court should give ‘a wide scope to the act in order to remedy, as much as possible, the plight of persons who have suffered from discrimination in employment opportunities.’
“Our holding does not necessarily mean that every member of the class is entitled to back pay. Individual circumstances vary and not all members of the class are automatically entitled to recovery. There should be a separate determination on an individual basis as to who is entitled to recovery and the amount of such recovery. It is clear that all members of the class have been subject to unlawful racial discriminatory practices. Therefore, those who have suffered a loss of pay because of such practices are entitled to appropriate compensation. It is our understanding that approximately 14 members of the class are in substantially the same circumstances as employee Johnson. There are approximately 35 additional employees, making a total of about 50, who were the victims of racially discriminatory practices.”

Writing in a similar situation, Judge Brown wrote:

“Indeed, if class-wide relief were not afforded expressly in any injunction or declaratory order issued in Employee’s behalf, the result would be the incongruous one of the Court — a Federal Court, no less — itself being the instrument of racial discrimination, which brings to mind our rejection of like arguments and result in Potts v. Flax, 5 Cir., 1963, 313 F.2d 284, 289.”

Jenkins v. United Gas Corporation, 5 Cir., 1968, 400 F.2d 28.

Defendant’s only challenge to the class action is that all members (they still assume the number to be 28) of the class are in or around New Orleans, and hence it is not impracticable to join them as parties to this suit.

In Forbush v. Wallace, 341 F.Supp. 217 (M.D.Ala., 1971), affirmed, 405 U.S. 970, 92 S.Ct. 1197, 31 L.Ed.2d 246, the Court said:

“It has become well established in our law that ‘impracticability’ as used in Rule 23 does not mean ‘impossibility,’ but rather it refers to the difficulty or inconvenience of joining all members of the class. Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913-914, (9th Cir., 1964); Union Pacific Railroad Co. v. Woodahl, 308 F.Supp. 1002, 1008 (D.Mont., 1970). It appears that the question of whether a number is so large as to make joinder impracticable is dependent not upon any arbitrary limit but rather upon the circumstances surrounding the case. 3B Moore’s Federal Practice ji 23.05, at 277-78 (2d ed., 1969).”

Accordingly, the dismissal of the class action will be vacated and the cause remanded to the District Court for further consideration under the standards outlined in Johnson and Pettway, supra. Particular attention will be given to the size of the class and practicality of joinder.

As appellant, Carey also seeks to have provisions of the collective bargaining agreement declared discriminatory and defendants enjoined from applying them. If the class action is allowed, this question becomes moot. If the class action is denied, plaintiff’s point would be well taken, and he should be afforded the abolition of the system — not just the prevention of its applicability to him.

In the final issue raised by Carey, he seeks to enjoin Greyhound from what he alleges to be discriminatory hiring practices. He points out that the District Court found Greyhound had hired 12 whites in class A positions (11 of whom were temporary employees) while hiring no blacks.

We are inclined to agree with Judge Boyle that this is irrelevant to plaintiff’s attack on the present seniority system. Since July 2, 1965, Greyhound has hired 48 blacks and 30 whites in class B jobs. Though not hiring any new blacks into class A jobs between July 2, 1965, and the end of 1971, Greyhound did transfer 22 employees — 17 blacks and 5 whites — from class B to class A jobs. There is no information in the record which reveals how many people, or what their races were, who applied for the above mentioned jobs. In the present posture of the ease, we take no further notice of this issue.

By way of summary,

The Judgment of the District Court as to the existence of racial discrimination is affirmed.

The award of attorney’s fees and special damages is affirmed.

The Judgment of the District Court requiring plant seniority is affirmed.

The Judgment as to back pay for Carey is reversed and remanded for further proceedings not inconsistent herewith.

The Judgment as to the class action aspects of the ease is likewise vacated and remanded.


text:
    Nazareth GATES et al., Plaintiffs-Appellees, and United States of America, Plaintiff-Intervenor-Appellee, v. John COLLIER, Superintendent, Missississippi State Penitentiary, et al., Defendants-Appellants.
    No. 73-1790.
    United States Court of Appeals, Fifth Circuit.
    Sept. 9, 1974.
    A. F. Summer, Atty. Gen. of Miss., William A. Allain, Asst. Atty. Gen., P. Roger Googe, Jr., Special Asst. Atty. Gen., Jackson, Miss., for defendants-appellants.
    Roy S. Haber, Native American Rights Fund, Boulder, Colo., Frank R. Parker, Jackson, Miss., Edward J. Reilly, New York City, for plaintiffs-appel-lees.
    Michael Davidson, Jesse H. Queen, Thomas R. Sheran, U. S. Dept, of Justice, Civil Rights Div., Washington, D. C., H. M. Ray, U. S. Atty., Oxford, Miss., for intervenor.
    ON PETITION FOR REHEARING AND PETITION FOR REHEARING' EN BANC
    (Opinion December 5, 1973, 5 Cir., 1974, 489 F.2d 298).
    Before BROWN, Chief Judge, . and WISDOM, GEWIN, BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RO-NEY and GEE, Circuit Judges.
   BY THE COURT:

A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc.

It is ordered that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.