author: CAMPBELL, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Augusto Tarquino Arias FLORES, Defendant-Appellant.
    No. 72-1175.
    United States Court of Appeals, First Circuit.
    Heard Feb. 9, 1973.
    Decided April 13, 1973.
    Arturo Aponte Pares, San Juan, P. R., by appointment of the Court, for appellant.
    Jorge Rios Torres, Asst. U. S. Atty., with whom Julio Morales Sanchez, U. S. Atty., was on brief, for appellee.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   CAMPBELL, Circuit Judge.

Appellant Arias Flores appeals from a conviction of importing cocaine in violation of 21 U.S.C. § 174, contending that the cocaine should have been suppressed as the product of a search violative of the Fourth Amendment.

On March 24, 1970, appellant, a resident of Venezuela, arrived at San Juan International Airport, Puerto Rico, after a flight from Venezuela via Curacao, Netherlands Antilles. An experienced customs agent, Juan Jiminez-Rosario, observed that appellant appeared “very, very nervous” as he awaited inspection of his baggage: “. . .he was looking to all places and his hands were trembling and due to my past experience as a low [law] enforcement officer I noticed him out of the crowd.” Jiminez-Rosario and another agent, Juan del Toro, intercepted appellant as' he left the baggage area and requested that he accompany them into an office. They were joined later by a customs supervisor, Juan Pinol. Jiminez-Rosario asked appellant to empty his pockets. When he had done so, but not completely, Jiminez-Rosario searched the pockets, uncovering about six hundred small “emerald-type stones” and four ladies rings. Jiminez-Rosario checked appellant’s customs declaration sheet and found that these articles had not been declared. Thereupon, “suspicious”, “[d]ue to the circumstances that he had brought these stones without declaring them,” Jiminez-Rosario asked appellant to take off his clothes. The agents noticed a white envelope inside his underpants. Pinol seized it. After a field test disclosed that white powder in the envelope was cocaine, appellant was arrested.

Border searches are subject to less stringent constitutional restraints than searches within our borders. Officers may initiate searches on grounds less objective and substantial than required for other searches, and need not procure warrants. Carroll v. United States, 267 U.S. 132, 153-154, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (dictum); see generally, United States v. Glaziou, 402 F.2d 8, 12 (2nd Cir. 1968), cert. denied, 393 U.S. 1121, 89 S.Ct. 999, 22 L.Ed.2d 126 (1969) and cases cited; and Note, Border Searches and the Fourth Amendment, 77 Yale L.J. 1007, 1007-8 (1968). The initial search of appellant's pockets was clearly justified, especially in light of the objective signs of nervousness detected by the agent. As we said recently, “a customs officer may search an individual’s baggage and outer clothing, in a reasonable manner, based on subjective suspicion alone, or even on a random basis.” United States v. Stornini, 443 F.2d 833, 835 (1st Cir. 1971) (citations omitted).

We have not yet determined what grounds less than probable cause may justify a so-called strip search. (In Stornini, we assumed without deciding the validity of the standard adopted by the Ninth Circuit: a “real suspicion”— a “subjective suspicion supported by objective, articulable facts.” United States v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir. 1970); United States v. Johnson, 425 F.2d 630 (9th Cir. 1970), cert. granted, 400 U.S. 990, 91 S.Ct. 451, 27 L.Ed.2d 437 (1971), dismissed pursuant to Supreme Court Rule 60, 404 U.S. 802, 92 S.Ct. 38, 30 L.Ed.2d 35 (1971).)

In this case we need not attempt to define the minimum showing necessary for a strip search. Wherever the line is ultimately to be drawn, the search here was well inside it. Failure to declare the emeralds and rings exposed them to forfeiture and the defendant to criminal prosecution. 19 U.S.C. §§ 1497, 1498; 18 U.S.C. § 545; 19 C.F.R. § 10.19. We do not say that every minor technical violation of the customs laws necessarily gives ground for a strip search. But we think the possession of several hundred undeclared emerald-like stones does. The nature, location and profusion of the undeclared articles plainly suggested that defendant was consciously engaged in smuggling activities. It was only reasonable to suppose that more contraband might be found on his person. That during the ensuing lawful search the customs officials discovered cocaine instead of jewelry does not make the seizure of the cocaine illegal. Harris v. United States, 331 U.S. 145, 154, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Alderman v. United States, 394 U.S. 165, 177, n. 10, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).

We hold that the search and seizure did not violate the Fourth Amendment. Appellant’s other argument, that the customs officers were required to inform him of his rights prior to the arrest, needs no consideration inasmuch as no prejudicial statements of his were offered into evidence.

Affirmed.

      . Repealed, Publ.L. 91-513, Title III, § 1101(a)(2)(4), Oct. 27, 1970, 84 Stat. 1291. Unlawful importation of cocaine and other drugs is now covered by 21 U. S.C. § 960.

      . The agent further testified, “The defendant came in, he was waiting in line and he was very nervous like this, he was looking like this, looking this, his eyes and the characteristics of his face and then — his movements and he was not still like the other passengers that were waiting to be, you know, to be waiting for luggage inspection.”

      . 19 U.S.C. § 482 states:
      Any of the officers or persons authorized to board or search vessels may stop, search, and examine, as well without as within their respective districts, any vehicle, beast, or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law. . . .


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Charles F. ECKERT, Appellant, v. The CITY OF PHILADELPHIA, PA.
    No. 71-1865.
    United States Court of Appeals, Third Circuit.
    Submitted April 6, 1973.
    Decided May 2, 1973.
    Charles F. Eckert, pro se.
    Martin Weinberg, City Sol., John Mattioni, Deputy City Sol., Howard D. Scher, Asst. City Sol., Philadelphia, Pa., for appellee.
    Before McLAUGHLIN, ROSENN and JAMES HUNTER, III, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

Appellant, here petitioned the district court to enjoin the City of Philadelphia from enforcing its ordinance which regulates the purchase of firearms and transfer of same. Appellant’s theory in the district court which he now repeats is that by the Second Amendment to the United States Constitution he is entitled to bear arms. Appellant is completely wrong about that. As long ago at least as 1939 the United States Supreme Court held that there must be “ * * * some reasonable relationship to the preservation or efficiency of a well regulated militia”. There is nothing whatsoever of that kind in this appeal. It must be remembered that the right to keep and bear arms is not a right given by the United States Constitution. See United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). Actually the City ordinance attacked by appellant has been rendered moot by declaration of the Pennsylvania Superior Court holding that the Philadelphia Ordinance above presented was preempted by an Act of the Pennsylvania General Assembly in 1962. See Commonwealth v. Ray, 218 Pa.Super. 72, 272 A.2d 275 (1970).

The judgment of the district court will be affirmed.


author: PER CURIAM.

text:
    The BANKING AND TRUST COMPANY, Plaintiff-Appellant, v. John B. CONNALLY, Secretary of the Treasury of the United States, and United States of America, et al., Defendants-Appellees.
    No. 72-1820.
    United States Court of Appeals, Sixth Circuit.
    Argued April 3, 1973.
    Decided May 1, 1973.

      John S. McLellan, Kingsport, Tenn., for plaintiff-appellant.
    Jean A. Staudt, Dept. of Justice, Washington, D. C., for defendants-appellees; Harlington Wood, Jr., Asst. Atty. Gen., John L. Bowers, Jr., U. S. Atty., Walter H. Fleischer, Thomas J. Press, Dept. of Justice, Washington, D. C., on brief.
    Before EDWARDS, CELEBREZZE and LIVELY, Circuit Judges.
   PER CURIAM.

Plaintiff bank in this action sought recoupment of money in the sum of $5,054 which was set off from the funds of plaintiff bank on the instruction of defendants while the funds were in the hands of the Federal Reserve Bank of Atlanta, Georgia. By this means the United States Government made itself whole for the loss to it resulting from plaintiff bank’s having cashed six stolen Series E United States Savings Bonds for a Mr. Monroe, a professional forger who presented himself as a Mr. Kreiss, the owner of the bonds, having in his possession a forged driver’s license, Social Security card, and credit cards in the name of said Kreiss.

The facts before the District Judge indicated that Mr. Monroe was a complete stranger to the bank personnel, that the bonds had a New Jersey mailing address, and that he presented a driver’s license with a Pennsylvania address. The bank officers did not seek to corroborate Mr. Monroe’s statements as to his intention to purchase a coin collection in Elizabethton, Tennessee, nor did the bank officers seek corroboration of his identification documents.

The District Judge found that the bank personnel “simply did not' exert due care in cashing these forged bonds.”

31 U.S.C. § 757c(i) (1970) authorizes the Treasurer of the United States to issue regulations pertaining to the fault or negligence of paying agents such as the plaintiff bank in the cashing of Savings Bonds. In a Treasury Department statement dated December 19, 1947, concerning identification of persons seeking to cash such bonds, and pertaining directly to the employment of motor vehicle operator’s licenses for such purposes, the instruction statement said in part, “In any case of doubt, other acceptable documents should be required for corroborative purposes.”

Under the total circumstances of this case, as set out above, and as set out more fully in the District Judge’s opinion filed June 15, 1972, we conclude that the District Judge’s finding of lack of due care is not clearly erroneous. Fed.R.Civ.P. 52(a).

The judgment of the District Court is affirmed.


author: HAYS, Circuit Judge: OAKES, Circuit Judge

text:
    EXECUTIVE BOARD LOCAL 1302, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Plaintiff-Appellee, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Defendant-Appellant.
    No. 385, Docket 72-1865.
    United States Court of Appeals, Second Circuit.
    Submitted Jan. 22,1973.
    Decided April 16, 1973.
    Norman Zolot, Hamden, Conn., for defendant-appellant.
    Matthew Shafner, O’Brien, Shafner & Garvey, Groton, Conn., for plaintiff-appellee.
    Before MOORE, HAYS and OAKES, Circuit Judges.
   HAYS, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the District of Connecticut, 339 F.Supp. 613, granting an injunction prohibiting the defendant International Union, its general executive board, its officers and representatives from interfering with or otherwise restricting the plaintiff Local in the legitimate conduct of its affairs and, particularly, from interfering with the plaintiff Local’s filing a petition for disaffiliation and a petition for a separate certification with the National Labor Relations Board. The appellant contends that the imposition of trusteeship for the purpose of preventing the Local from petitioning the Board for disaffiliation and separate certification is among the “legitimate objects” of a labor organization within the meaning of Section 302 of the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 462 (1964). We agree with this contention of the appellant and reverse the judgment of the District Court.

Local 1302 is composed of about 400 carpenters all of whom are employed by the Electric Boat Division of General Dynamics in Groton, Connecticut. Local 1302 is one of eleven separate unions represented by the Metal Trades Council of New London County in collective bargaining with the Electric Boat Division. The Metal Trades Council has been certified by the National Labor Relations Board since 1945 as the bargaining representative for the eleven unions and has for over twenty-five years negotiated collective agreements Covering the Electric Boat Division’s approximately 8000 employees. In August 1967 Local 1302 voted to disaffiliate from the Metal Trades Council and seek separate certification in order to deal directly with the employer in behalf of the 400 carpenters rather than to continue to bargain through the Council representing all 8000 employees. The International ordered Local 1302 to refrain from filing for separate certification. Refusing to obey this order, the Local filed the petition for separate certification. The International thereupon, after holding a hearing on the matter, imposed a trusteeship and appointed a trustee. The trustee withdrew the Local’s petition for separate certification.

The trusteeship was withdrawn by the International after a new contract was agreed upon by the Metal Trades Council and the employer. This contract expired in June 1972. The International has indicated that it will again impose a trusteeship should Local 1302 file a new petition for disaffiliation with the Board.

The sole question presented on this appeal is whether the imposition of the trusteeship is permissible under Section 302 of the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 462 (1964).

Section 302 of the Act provides :

“Trusteeships shall be established and administered by a labor organization over a subordinate body only in accordance with the constitution and bylaws of the organization which has assumed trusteeship over the subordinate body and for the purpose of correcting corruption or financial malpractice, assuring the performance of collective bargaining agreements or other duties of a bargaining representative, restoring democratic procedures or otherwise carrying out the legitimate objects of such labor organization.”

It is clear from Section 302 that there are two conditions for the valid imposition of a trusteeship: the International must comply with its own constitution in establishing and administering the trusteeship and the trusteeship must be imposed for one of the purposes enumerated in the Section. See United Bro. of Carpenters & Joiners v. Brown, 343 F.2d 872, 882 (10th Cir. 1965). There is no contention in the instant case that the International did not comply with its constitution in imposing the trusteeship. Therefore the only question at issue is whether the purpose for which the trusteeship was imposed was one of those enumerated in Section 302.

It is our view that the trusteeship was imposed for the purpose of “carrying out the legitimate objects of such labor organization.” The Senate Report on Section 302 said:

“[trusteeships] are among the most effective devices which responsible international officers have to ensure order within their organization. In general, they have been widely used to prevent corruption, mismanagement of union funds, violation of collective bargaining agreements, . . . .; in short, to preserve the integrity and stability of the organization itself.” 1959 U.S.Code Cong. & Admin.News p. 2333.

Here the trusteeship was imposed in order “to preserve the integrity and stability of the organization.”

The Metal Trades Council from which the Local seeks to disaffiliate is chartered by the Metal Trades Department of the American Federation of Labor and the Congress of Industrial Organizations. The governing body of the Council is the executive board which is comprised of delegates representing each of the affiliated local unions. The object of the Council, and of the Metal Trades Department generally, is to facilitate the adjustment of trade disputes along- practical lines and thus to encourage harmonious relations between employees and employers. The constitution of the Metal Trades Department provides :

“Where there exist three (3) or more local unions of affiliated trades in any locality, they shall, when called upon by their respective national and international organizations, form a local metal trades council of this Department, which bodies shall be governed in accordance with the laws of this Department.”

In connection with imposing the trusteeship on the Local, the committee of the International which heard the charges found that collective bargaining by the Metal Trades Council on behalf of Local 1302 and the ten other affiliated local unions had resulted over many years in stable bargaining relationships under which the members of the affiliated locals had received substantial benefits. The committee also found that the filing by the Local of the petition for disaffiliation had resulted in delaying the then current collective negotiations. The committee concluded that the Local’s disaffiliation would have a detrimental effect on the process of collective bargaining and would constitute a failure to carry out its duties to its members in a responsible manner.

It appears to us that the Committee’s conclusions were clearly justified. Not only would separate bargaining negotiations delay the execution of a collective agreement, but disaffiliation by the Local might well lead to attempts at disaffiliation by other locals of the eleven unions representing the 8000 employees of the Electric Boat Division, and the undermining of the Council’s position as bargaining representative. Such a development would almost inevitably result in instability of the whole bargaining relationship with the eleven locals vying to outdo one another and resorting to strikes to accomplish their aim. It was to avoid just such results that the Metal Trades Department was organized.

Thus the trusteeship was imposed to prevent the destruction of the existing bargaining unit and to preserve the status of the certified bargaining representative. The International action was designed, in our opinion, to carry out “the legitimate objects” of the organization within the meaning of Section 302.

The case of National Association of Letter Carriers v. Sombrotto, 449 F.2d 915 (2d Cir. 1971), lends support to the proposition that Section 302 allows the imposition of a trusteeship in a situation in which the Local seeks to petition for a new bargaining unit. In Sombrotto, Branch 36, a National Association of Letter Carriers local, attempted to petition for a new local area bargaining unit. To prevent this action, as well as a threatened strike, the national union imposed a trusteeship. This court upheld the imposition of the trusteeship, saying:

“The union is entitled to protect itself, and actions taken toward this end appear to us directed toward a ‘legitimate object’ within the meaning of 29 U.S.C. § 462.”

It is significant that Congress in enacting Section 302 emphasized the limited role of the judiciary in reviewing the imposition of trusteeships under the Section. To protect against judicial intervention, Congress established a presumption of validity by which courts are not to overturn a trusteeship for the first 18 months of its existence “upon a question of fact or degree or of judgment as to the necessity for imposing it” but only “if dishonesty or bad faith is proved.” Given this background, judicial intervention should be undertaken with only the greatest care and caution.

It should be noted that our decision does not mean that the members of the local are being locked in to the union. If the members of Local 1302 wish to repudiate the United Brotherhood of Carpenters and Joiners and start a new union through which to bargain, they are free to do so. However, this is not what they have attempted to do. Instead they have attempted to stay within the International while at the same time withdrawing from the Metal Trades Section and from the established bargaining system. As Judge Friendly noted in a slightly different context,

“Although § 1203(c) [similar to section 9 of the LMRA] protects, the right of employees or labor organizations to seek a new bargaining representative when they have become dissatisfied with the existing one it does not necessarily mean that in exercising that right while still maintaining membership in the national union, they are immune from discipline by the parent body as provided in the union constitution.” Sombrotto, supra, at 923.

The judgment of the District Court is reversed and the permanent injunction prohibiting the trusteeship dissolved.

OAKES, Circuit Judge

(dissenting):

I dissent.

There is no doubt that the International may under its constitution impose a trusteeship to assure the performance of a collective bargaining agreement, but here the agreement has expired. The question is, then, whether it may impose such a trusteeship — or as it has been called a “labor receivership” — solely to prevent the local from petitioning the Board for disaffiliation or separate certification, on the basis that keeping the local as a part of the International is one of “the legitimate objects” of the International, within § 302 of LMRDA, 29 U.S.C. § 462. In National Association of Letter Carriers v. Sombrotto, 449 F.2d 915 (2d Cir. 1971), a majority of the panel indicated that a “legitimate object” of the International, enforceable by a trusteeship, was to prevent a local from seeking to disaffiliate “while still maintaining membership in the national union . . . . ” 449 F.2d at 923. But Sombrotto involved a trusteeship imposed to prevent a local’s strike that would have been in violation of a collective bargaining agreement. Its dictum that a trusteeship could be imposed to prevent a local’s disaffiliation was, as the majority of the Sombrotto panel itself seemed to recognize, 449 F.2d at 923, unnecessary to the disposition of that appeal and should be limited to the particular circumstances — the preservation of a collective bargaining agreement —involved therein. Here, however, the majority holds in effect that a local may be “locked in” and forever unable to disaffiliate even absent a collective bargaining agreement.

Not every objective of an International in setting up a trusteeship is necessarily legitimate. In interpreting the broad language of § 302 due weight must be given to other sections of the LMRDA, United Brotherhood of Carpenters and Joiners v. Brown, 343 F.2d 872, 882 (10th Cir. 1965) (trusteeship imposed because a local would not affiliate with a District Council or raise its dues is not imposed for a proper purpose within § 302), as well as other aspects of national labor policy.,

As to the latter, extension of Sombrotto to this case would infringe on the local’s specifically guaranteed right as a craft unit to bargain separately. Labor Relations Act § 9(a) & (b)(2), 29 U.S. C. §§ 159(a) & (b)(2). See Mallinckrodt Chemical Works, 162 NLRB 387 (1966). The majority takes the position that the members of the local could go out and start a new local, one which, would not be affiliated with the International. This is, of course, true, but under § 9(b)(2), a craft unit may seek representation separate from the larger unit previously designated by the Board as the appropriate unit for collective bargaining. If doing so amounts to a violation of the International constitution or by-laws, this may be grounds for expulsion of the local from the International. But to permit a trusteeship to be imposed is effectively to prevent the craft unit from enforcing its statutory right to sever.

Furthermore, permitting the trusteeship to be imposed here defeats one of the principal purposes of other provisions of the LMRDA, protecting the democratic process within union organizations. 29 U.S.C. § 401; United Brotherhood of Carpenters and Joiners v. Brown, supra, 343 F.2d at 882-883.

A reading of the relevant legislative history, II Legislative History of the Labor-Management Reporting and Disclosure Act 1202 et seq. (1959), establishes that, despite Senator Ervin’s reference to it as “specific,” id. at 1204, the “legitimate objects” clause of § 302 of the Act is plainly ambiguous. I would limit it to a reference that a trusteeship can be imposed only for objects consistent with other legally established rights of a local and thus not extend it to allow the International to keep the local here “locked in.”

      . Paragraph D, Section 6 of the International’s constitution provides:
      “The United Brotherhood of Carpenters and Joiners of America shall have the right to establish supervision over and to conduct the affairs of any subordinate body (including the removal of any or all officers of such subordinate body) to correct financial irregularities or to assure the performance of collective bargaining agreements and the responsibility of the subordinate body as a bargaining agent or to protect the interests and rights of the members or whenever the affairs of the subordinate body are conducted in such a manner as to be detrimental to the welfare of the members and to the best interests of the United Brotherhood, subject, however, to the provisions of Paragraph J of Section 10.”
      Paragraph J of Section 10 provides:
      “Whenever it appears to the satisfaction of the General President that any Local Union or member thereof, or any District, State or Provincial Council is acting contrary to the welfare of the United Brotherhood of Carpenters and Joiners of America, or that supervision should be established over the conduct of the affairs of any subordinate body as set forth in Section 6-D, he may appoint a committee to hold a hearing, after due notice to such subordinate body or member. Upon completion of the hearing, the committee shall report its findings and recommendations to the General Executive Board and to the member or subordinate body involved. The General Executive Board is empowered to take such action as is necessary and proper for the welfare of the United Brotherhood of Carpenters and Joiners of Ameria, subject, however to the right of appeal to the next General Convention.”

      . The Sombrotto decision involved Section 1203(c) of the Postal Reorganization Act, 39 U.S.C. 1203(c), instead of Section 9 of the Labor Management Relations Act; however, the sections are similar in purpose and the analysis presented is applicable to the instant case.


author: SOBELOFF, Senior Circuit Judge:

text:
    Daniel ROSS et al., Appellants, v. Dr. Stanley BLACKLEDGE et al., Appellees.
    No. 73-1314.
    United States Court of Appeals, Fourth Circuit.
    Submitted Jan. 30, 1973.
    Decided March 27, 1973.

      Daniel Ross, pro se.
    Jacob L. Safron, Asst. Atty. Gen., for appellees.
    Before SOBELOFF, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges.
   SOBELOFF, Senior Circuit Judge:

Six North Carolina prisoners, who are members of the Islamic, a Black Muslim faith, seek injunctive relief pursuant to 42 U:S.C. §§ 1983 and 1985 to compel prison authorities to provide them with the pork-free diet required by the tenets of their religious faith. They allege that they cannot obtain a balanced diet by eating only non-pork items because of the frequency with which pork appears as the only meat on the prison menu and because most vegetables are cooked in or seasoned with pork. And, adducing the failure of prison officials to provide them with a “special diet on the same basis as the correctional prisoners who are on ulcer diet,” the prisoners proffer an equal protection argument as an additional basis for the relief sought.

Initially, the District Court denied a motion to dismiss, directing instead that the State demonstrate that an adequate diet could be maintained by eating only non-pork items and that the State respond to the equal protection allegation. After the State’s submission of a supplemental memorandum and supporting affidavits, the District Court granted a motion to dismiss without ever holding an evidentiary hearing.

In its Memorandum Opinion and Order, the District Court said that “[t]he affidavits and menus clearly show that the plaintiffs can receive more than adequate nourishment from other foods and that the defendants are providing ample pork free meals and foods” (emphasis added). The court also found that the “record clearly shows” that a rational basis existed for providing a separate diet for prisoners with ulcers but not for Black Muslims. We conclude that the District Court erred in granting summary dismissal and therefore vacate its judgment and remand the case for an evidentiary hearing.

In Abernathy v. Cunningham, 393 F.2d 775, 778 (4 Cir. 1968), this court held that where the District Court found after “an extensive evidentiary hearing” (p. 777) that Muslim prisoners could obtain a balanced ration while avoiding pork and food prepared with pork, the state was not required to provide a separate pork-free diet. Subsequently, in a case involving the attempt of Muslims to secure First Amendment rights, we held that the state may only restrict a prisoner’s desire to practice religion “upon a convincing showing that paramount state interests so require. * * * The burden is not met merely by the filing of an answer which controverts the allegations of the complaint or which relies solely on our previous decision in Abernathy v. Cunningham, supra.Brown v. Peyton, 437 F.2d 1228, 1231 (4 Cir. 1971).

The value of a full evidentiary hearing is exemplified by Barnett v. Rodgers, 133 U.S.App.D.C. 296, 410 F.2d 995 (1969), which dealt with Black Muslim demands for at least one full-course, pork-free diet per day. The District Court initially dismissed the petitions without a hearing. The dismissal was vacated upon appeal, counsel appointed and an extensive evidentiary hearing held that enabled the District Court to develop a full and complete record. Only examination and cross-examination of witnesses brought out the prevalence of pork in the prison diet. See Abernathy v. Cunningham, supra, 393 F.2d at 780 (Craven, J., concurring and dissenting). Witnesses for the Muslims testified that pork was used to prepare such non-pork main dishes as hamburgers, meat loaf, chili con carne, and gravies served on non-pork meats. While prison authorities contested this testimony, they admitted that pork was present in macaroni and cheese, hot dogs, cold cuts and luncheon meats. The chief steward also admitted that pork was used to season about half of the green vegetables served and many side dishes. Barnett v. Rodgers, supra, 410 F.2d at 998. Nonetheless, the District Court once again dismissed the suit, apparently on the theory that a balanced diet was provided to prisoners generally and if a particular inmate wished to practice his religion, he could refrain from eating those things he found objectionable. The issue of whether an inadequate diet would result from this exercise of “freedom” was not faced.

The Court of Appeals for the District of Columbia Circuit ruled that the District Court had erred in its dismissal of petitioners’ complaints, reasoning that the request for one full-course, pork-free diet daily was “essentially a plea for a modest degree of official deference to their religious obligation.” The onus was to be placed upon the state to demonstrate that the impediments placed in the way of appellants’ observance of their dietary creed had compelling justification, such as budgetary constraints or administrative difficulties. The District Court was also to inquire into whether governmental purposes responsible for the impediments could be feasibly “pursued by means that [less] broadly stifle fundamental personal liberties.” Barnett v. Rodgers, supra at 1003.

While the decisions of prison officials are entitled to considerable weight, they are subject to judicial reviews “to insure that the constitutional rights of prisoners are protected.” Brown v. Peyton, supra, 437 F.2d at 1232. The state’s only justification for refusing to provide some form of alternative diet is that adequate nourishment could be obtained from non-pork items. This is a conclusory assertion made in an affidavit by W. H. Swart, the official of the North Carolina Department of Correction responsible for preparing and distributing menus. The plaintiffs have not been given an opportunity to submit their own evidence or controvert the Swart affidavit. Nor is it clear to what extent non-pork meat, vegetables and other side dishes are prepared with pork seasonings and derivatives. As a matter of fact, an analysis of the master menus for the months of March, April, May and June, 1972, which were submitted by the defendants, reveals the following with respect to the number of meals at which some form of pork was served as the exclusive meat:

Month (1972) Total Number of Meals Where Meat Served Number of Pork Meats Non-Pork Meats Percent of Meals with Pork Meats
March 89 43 46 48.3%
April 77 38 39 49.3%
May 90 43 47 46.6%
June 92 44 48 47.8%

Whether a prisoner could obtain adequate nourishment from the prison ration while refraining from eating all pork-tainted food is a question of medical and scientific fact. Adequacy of diet is not simply measured by determining whether the stomach is so full that pangs of hunger do not persist. There are special nutritional elements found in meats; and when the amount of meat in a diet is reduced, substitutes providing parallel nourishment can be found, but only in certain foods. Adequacy of diet must be viewed qualitatively as well as quantitatively. Since almost half of the meals served at the prison contain pork as the exclusive meat, and many others may contain meat, vegetables or eggs seasoned with pork products, the Department of Correction has not clearly shown that an adequate ration is available to Muslim prisoners wishing to observe their religious creed, in either a quantitative or qualitative sense.

The appellants also challenge their treatment vis-á-vis ulcer patients, who are provided a menu which specifically provides that “No pork meats are served” and are also permitted to eat items on the regular menu. The State responds that a failure to provide an ulcer diet to an inmate for whom the diet has been prescribed could conceivably give rise to a claim of denial of adequate medical treatment. This is undoubtedly true and certainly justifies treating ulcer patients differently from the general population with respect to diet. It does not, however, explain the refusal to accord the same privileges to the plaintiffs, who also make a constitutional argument in support of their demands. The prison authorities apparently have arbitrarily chosen to acknowledge the medical claim and to resist the religious claim, but have failed to make any showing that their refusal to provide some minimal form of pork-free diet is based on any “paramount state interest.” The State admits that at one time it provided a pork-free diet for Black Muslims. This policy was discontinued, not because of any “paramount state interest,” but because allegedly the prisoners did not eat the food provided.

Appellants are entitled to an evidentiary hearing on the prevalence of pork in the prison diet, on whether there is adequate nourishment in the pork-free foods currently available to the prisoners and on whether the state can establish an adequate interest for not providing some satisfactory form of alternative diet. Since the District Court erred in its summary dismissal of this case, leave to appeal in forma pauperis is granted, the judgment of the District Court is vacated, and the case is remanded for further proceedings consistent with this opinion.

CRAVEN, J., concurs in the result only.

      . The figures for pork-meat meals do not reflect those meals where pork was served accompanied by a non-pork meat. These are classified as non-pork meals. Composition meats which generally include pork are treated as pork meat in the chart. Breakfast meals are included. It is not known whether eggs are cooked in pork derivatives or with pork meats.


author: DURFEE, Senior Judge.

text:
    Donna AUSTIN, Petitioner-Appellant, v. Don R. ERICKSON, Warden of the South Dakota Penitentiary, Respondent-Appellee.
    No. 72-1385.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 17, 1972.
    Decided April 20, 1973.
    Marvin K. Bailin, Sioux Falls, S. D., for appellant.
    William J. Srstka, Jr., Asst. Atty. Gen., Pierre, S. D., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, LAY, Circuit Judge and DURFEE, Senior Judge of the United States Court of Claims.

       Senior Judge James R. Durfee of the United States Court of Claims is sitting by designation.

   DURFEE, Senior Judge.

Donna Jean Austin, appellant, petitioned the United States District Court for the District of South Dakota for a writ of habeas corpus, pursuant to 28 U.S.C. §§ 2241 and 2254, against the Warden of the South Dakota State Penitentiary, Don R. Erickson, appellee. Austin had exhausted her remedies upon affirmance of denial of her application for a state writ of habeas corpus by the Supreme Court of South Dakota, Judge Wollman dissenting. Austin v. Erickson, S.D., 195 N.W.2d 395 (1972). Petitioner-appellant claimed her confinement was imposed upon a conviction and life sentence which were the result of a trial in which she was deprived of the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the Constitution. The Federal District Court denied the petition in a memorandum opinion reported at 343 F.Supp. 22 (D.S.D.1972), and ordered the Writ of Habeas Corpus quashed on June 12, 1972. Donna Austin was remanded to the custody of appellee. This appeal from denial of the petition for writ of habeas corpus and order quashing the writ followed. We reverse.

The central issue is whether there was a conflict of interest arising from representation of Austin and a co-defendant by one attorney, which deprived her of effective assistance of counsel.

Donna Austin and her companion, Ronnie Goode, were separately charged by the State of South Dakota with first degree manslaughter in killing William L. Doty, appellant’s two and one-half' year old son by a former marriage. One lawyer was appointed to represent both Austin and Goode as indigents. Their preliminary hearings were combined but they were separately tried.

Austin was tried first and convicted by a jury of first degree manslaughter for aiding and abetting Goode in killing her infant son. Appellant’s conviction was affirmed on appeal. State v. Austin, 84 S.D. 405, 172 N.W.2d 284 (1969).

Goode was separately tried and also convicted by a jury of first degree manslaughter. On appeal his conviction was reversed by the South Dakota Supreme Court on the grounds that the appointment of the same counsel to represent both defendants created a conflict of interest which denied Goode his right to effective assistance of counsel. State v. Goode, 84 S.D. 369, 171 N.W.2d 733 (1969). The attorney for both defendants had called Goode as a witness at the Austin trial. Thereafter,

* * * Although advised by the court of his constitutional right to refuse to testify to any matter which might tend to incriminate him, Goode testified fully and in detail about his relationship with Mrs. Austin and his care and handling of the deceased child. He related how he took care of the child while Mrs. Austin worked. He admitted using physical force as disciplinary measures. On the day of the child’s death he admitted shaking the child shortly after which the boy was rushed to the hospital and died. His testimony could serve but one purpose — to deflect the glare of guilt away from Mrs. Austin. 171 N.W.2d at 735.

Goode’s testimony was later read into the record in Goode’s trial and fulfilled the State’s burden of proof against Goode as to certain elements of the crime.

Appellant’s principal contention is that there was a divergence of interests between Austin and Goode arising from the nature of the theory of the State against each defendant.

The State’s theory was that Goode had directly committed the fatal act resulting in death of the child while the State’s theory against Austin was that she aided and abetted Goode in failing to prevent Goode from administering the fatal beating. Petitioner-appellant argues that the separate theories gave rise- to separate potential defenses. Whereas Goode could only defend on grounds of excusable homicide, Austin could rely upon a reciprocal defense of excusable homicide as well as a conflicting defense antagonistic to Goode, of lack of responsibility. To assert and prevail upon the second defense, petitioner-appellant would have had to introduce evidence in support of her defense which could tend to east the blame on Goode alone. Appellant argues in part that counsel did make a marginal effort to pursue the defense of lack of responsibility on her behalf but that, beleagured by his divided loyalty and the actual conflict of interests, the attorney could not develop the defense properly through vigorous and full examination of Goode and in argument.

The leading case in this area is Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). In that case the Supreme Court enshrined the principle:

* * * [T]he ‘assistance of counsel’ guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests. If the right to the assistance of counsel means less than this, a valued constitutional safeguard is substantially impaired. 315 U.S. at 70, 62 S.Ct. at 465.

No one seriously disputed the Sixth Amendment applies equally to the individual states through the due process clause of the Fourteenth Amendment. The principal announced in Glasser also binds the states.

In Glasser the co-defendants Glasser and Kretske shared the same attorney. The possibility of the inconsistent interests of Glasser and Kretske was brought home to the trial court, but the court created joint counsel anyway. Glasser, supra, at 71, 62 S.Ct. 457.

The Supreme Court noted:

Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused. Speaking of the obligation of the trial court to preserve the right to jury trial for an accused, Mr. Justice Sutherland said that such duty ‘is not to be discharged as a matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departure from that mode of trial or from any of the essential elements thereof, and with caution increasing in degree as the offense dealt with increase in gravity.’ Patton v. United States, 281 U.S. 276, 312-313, 50 S.Ct. 253, 263, 74 L.Ed. 854, 70 A.L.R. 263. The trial court should protect the right of an accused to have the assistance of counsel. [Emphasis added]. 315 U.S. at 71, 62 S.Ct. at 465.

The Supreme Court later added:

Of equal importance with the duty of the court to see that an accused has the assistance of counsel is its duty to refrain from embarrassing counsel in the defense of an accused by insisting, or indeed even suggesting, that counsel undertake to concurrently represent interests which might diverge from those of his first client, when the possibility of the divergence is brought home to the court. 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680.

In Glasser, supra, 72-75, 62 S.Ct. 457, the possibility of divergent interests manifested itself in actual conflict of interest during the course of the trial in that it inhibited counsel’s conduct of Glasser’s defense. The Court in Glasser concluded:

Our examination of the record leads to the conclusion that Stewart’s (counsel’s) representation of Glasser was not as effective as it might have been if the appointment had not been made. 315 U.S. at 76, 62 S.Ct. at 468.

Where the conflict of interest appears from the outset, it is clear error for the Court to force the same counsel on both accused. See Larry Buffalo Chief v. State of South Dakota, 425 F.2d 271 (8th Cir. 1970). And it is the rule in this circuit that no reversible error is committed by a District Court in assigning a single attorney to represent two or more co-defendants in a pending criminal action, absent evidence of an actual conflict of interest or evidence pointing to a substantial possibility of a conflict of interest between the co-defendants. United States v. Williams, 429 F.2d 158, 161 (8th Cir. 1970), cert. denied, 400 U.S. 947, 91 S.Ct. 255, 27 L.Ed.2d 253.

In the instant case appellant Austin has not argued that at the time of appointment of joint counsel the trial judge failed to conduct a “careful inquiry and satisfy himself that no conflict of interest is likely to result and that the parties have no valid objection.” Williams, supra, at 161. Rather appellant argues that the trial judges “should have been aware” of the conflict when he made the appointment of counsel, essentially because appellant had available to her a potential, though unarticulated, defense intrinsically antagonistic to Goode’s interests. We do not think that appellant made a sufficient showing to establish an actual conflict arising from the outset or a “substantial possibility” of a conflict of interest at the outset which was brought home to the court. Whether the trial court should have foreseen the conflict and appointed separate counsel is not then the pivotal issue in this case. In this respect this case is similar to Sawyer v. Brough, 358 F.2d 70, 74 (4th Cir. 1966). What is determinative is that the possible divergence of interests of Austin and Goode developed into a clear and actual conflict of interest in counsel’s representation of Goode and Austin during the course of Austin’s trial limiting and inhibiting the attorney’s conduct of Austin’s defense.

The conflict of interest was most evident when Goode took the stand at Austin’s trial on her behalf. Before Goode testified, the court advised him of his privilege against self-incrimination and specifically stated that it would permit counsel to prompt Goode to claim that privilege. Upon this direct examination, Goode admitted hitting the Doty child, and counsel moved to strike the statement, “as it might tend to incriminate this defendant in a later charge against him.” The court denied the motion and counsel stated: “That’s all right. I’m making the motion. Of course, I am trying to defend this defendant, as well. All right. Now, you understand, Ron, you don’t need to say anything, but you can, if you wish, say everything. But you understand that you are supposed to say what Donna did. This charge is against Donna. * * * Go ahead and tell us the whole thing; or tell us what you want to.” 171 N.W.2d at 735.

The South Dakota Supreme Court found this same dialogue crucial in establishing a violation of Goode’s Sixth Amendment right to effective counsel. The foregoing exchange also reveals a “struggle to serve two masters,” Glasser, supra, 315 U.S. at 75, 62 S.Ct. 457, which hampered his defense of Austin.

Taken altogether, counsel’s gingerly direct examination of Goode was indicative of his “duplicitous position where his full talents — as a vigorous advocate having the single aim of acquittal by all means fair and honorable — (were) hobbled or fettered or restrained by commitments to others.” White v. United States, 396 F.2d 822, 824 (5th Cir. 1969), citing Porter v. United States, 298 F.2d 461, 463 (5th Cir. 1962). Appointed counsel’s cautious examination indicated that he could not use his best efforts to force Goode to exonerate Austin for fear of Goode’s implicating himself. The Supreme Court of South Dakota found that Goode’s testimony “could serve but one purpose — to deflect the glare of guilt away from Mrs. Austin.” 171 N.W.2d at 735. At this point it was without a doubt in appellant’s interest to show that she could not prevent Goode from beating the child and that Goode was determined to discipline the child even to the point of injuring him severely. But rather than exploit this clear opportunity to develop fully the defense of lack of responsibility on behalf of Mrs. Austin, counsel failed to do so. Counsel’s failure to undertake such a direct examination “luminates the cross-purposes under which he was laboring.” Glasser, supra, 315 U.S. at 73, 62 S.Ct. at 466. In an analogous case, United States v. Pinc, 452 F.2d 507 (5th Cir. 1971), the unwillingness of a commonly shared attorney to examine fully and directly a .co-defendant whose statements were reasonably assumed to be exculpatory to the benefit of a defendant was held to deny defendant effective assistance of counsel.

We do not speculate whether or not the defense of lack of responsibility could have been successfully developed and asserted on .behalf of Mrs. Austin. Whether successful or unsuccessful, the defense was not developed because of counsel’s divided loyalties, and the possible damage to Goode. See Craig v. United States, 217 F.2d 355, 358 (6th Cir. 1954). The right to the “untrammeled and unimpaired” assistance of counsel is breached where a defendant’s counsel simultaneously represents another defendant with conflicting interests. Government of Virgin Islands v. John, 447 F.2d 69, 74 (3rd Cir. 1971). Each defendant does not have to delineate the precise manner in which he or she may have been harmed by the conflict of interest. Sawyer, supra, 358 F.2d at 73. “The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser, supra, 315 U.S. at 76, 62 S.Ct. at 467. No prejudice need be shown. Accord: United States v. Gougis, 374 F.2d 758, 761 (7th Cir. 1967); Kaplan v. United States, 375 F.2d 895, 898 (9th Cir. 1967), cert. denied, 389 U.S. 839, 88 S.Ct. 67,19 L.Ed.2d 103.

The capstone we think is that, despite the fact that evidence was on the record that Goode alone was responsible for the child’s death, the attorney elected in closing argument to rely solely upon excusable homicide in defense of Austin. Goode directly caused the death; his only defense was excusable homicide. Upon this record, to make Austin’s defense dependent upon, and parasitic to, Goode’s defense is further evidence of the actual conflict of interest. The language the South Dakota Supreme Court chose in State v. Goode, 84 S.D. 369, 171 N.W.2d 733, 736, where it discussed the conflict of interest affecting Goode, is equally applicable to Austin:

No attorney should be placed in a position of divided loyalty ‘where he may be required to choose between conflicting duties or to be led to an attempt to reconcile conflicting interests rather than to enforce, to their full extent, the rights of the party whom he should alone represent.’ Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A.2d 641.

In considering Austin’s application for a writ of habeas corpus, the South Dakota Supreme Court ruled that Austin had not shown a conflict of interest or prejudice to her by the dual representation of herself and Goode by the same attorney. It said:

It appears that this Court has decided by its opinion in State v. Austin, supra, and State v. Goode, supra, that in having the defendant Goode testify in her case at a time when both were represented by the same counsel, she was benefited or at least the attempt was made to assist her, by having Goode take the blame. Under these circumstances we cannot find that she has been prejudiced and as to her at least, there was no conflict of interest. 195 N.W.2d at 398.

In turn when considering Austin’s petition, the Federal District Court relied on that part of the reasoning in Glasser which held that if one defendant is to rely on the denial of his co-defendant’s constitutional rights for reversal, he must show that denial prejudiced him in some manner. Applying this rule, the District Court said: “Some prejudice must be shown even though the amount of that prejudice need not be shown. No prejudice has been shown by the petitioner.” 343 F.Supp. 22, 24. The District Court additionally founded its denial of the application for the writ upon a finding of no conflict of interests.

The reliance of the District Court on the aforementioned part of the holding in Glasser was misplaced. Austin does not rely upon the denial of Goode’s constitutional right to effective counsel for reversal but rather upon denial of her own right to effective assistance of counsel. Once the actual conflict had been established which affected.her own right to counsel’s effective assistance, Austin had met her burden.

The Federal District Court further stated:

Her chief complaint now is that she and her trial counsel chose the wrong defense. Yet she offered no evidence at the hearing before this court, as was done in Buffalo Chief v. South Dakota, 425 F.2d 271 (8th Cir. 1970), as to why her attorney chose excusable homicide as her defense instead of attempting to lay the blame solely on Goode. As the evidence now stands we can only speculate that that defense was chosen because petitioner thought that was the truth. 343 F.Supp. at 24.

The issue in this case is not why a particular defense was chosen and we do not agree that petition-appellant’s chief complaint is that the wrong defense was chosen. This is not simply a case where appellant now criticizes “the defense ‘adopted’ from hindsight.” Duran v. United States, 413 F.2d 596, 599 (9th Cir. 1969). We think there was clear and convincing evidence of an actual conflict, distinguishing this case from Larry Buffalo Chief. The Federal District Court’s finding to the contrary was clearly erroneous.

That the attorney relied solely upon excusable homicide in his closing argument on behalf of Austin, giving the appearance of Austin’s conscious selection and reliance upon this defense, is by itself misleading. It must be remembered that in cases involving conflicts of interest, the conflict does not always appear full-blown upon the record since counsel may throughout endeavor to reconcile the conflict. The burden is upon the State to show that Austin made a knowing and intelligent waiver of her right to effective assistance of counsel by selecting, agreeing to, or acquiescing in a singular defense of excusable homicide —or by knowingly, intelligently, and intentionally choosing to be represented by the same attorney. Glasser, supra, 315 U.S. at 71, 62 S.Ct. 457; Larry Buffalo Chief, supra, 425 F.2d at 280; Government of the Virgin Islands, 447 F.2d at 74; Campbell v. United States, 122 U.S.App.D.C. 143, 352 F.2d 359, 360 (1965). The State did not shoulder that burden in this case. Every reasonable presumption against the waiver of fundamental rights is made in order to protect Sixth Amendment rights. Glasser, supra, 315 U.S. at 70, 63 S.Ct. 457.

The evidence left the District Court in the position of speculating as to defendant’s waiver of her fundamental right to effective assistance of counsel. It is clear that the court should have assumed, and concluded, that the right was not waived.

The right to counsel does not mean the right to successful counsel. Mere errors of judgment on the part of counsel are not sufficient to establish ineffective assistance; nor is it the function of a reviewing court to evaluate the relative efficacy of trial tactics by counsel. We do not deviate from these concepts by our holding. Our examination of the record, however, leads us to the conclusion that counsel’s representation of Austin was not as effective as it might have been if the appointment had not been made.

We reverse and remand to the District Court with instructions to grant the writ of habeas corpus subject to the right of the State of South Dakota to retry Austin within a reasonable time.

Reversed and remanded.

      . The integrity of counsel is not in question and nothing we say hereafter relates thereto. Trial counsel is not the same as the counsel who has prosecuted Austin’s petition for writ of habeas corpus.

      . The cause of death of the infant Doty was determined to be a subdural hematoma sustained by back and forth motion of the head during an act of shaking. 172 N.W.2d at 285. There was no evidence that Austin had shaken the child. “The State apparently does not claim that the conduct of the mother directly caused the death of her son. Its position seems to be that as to the child’s death she was an aider and abettor.” State v. Austin, 172 N.W.2d at 288. The jury at Austin’s trial was instructed as follows:
      “In the case of a parent, the parent has a duty to protect her child. Because of this, if a parent knows that another person is abusing her child or is inclined to do so and such parent stands passively by and does nothing to protect her child or to prevent another from abusing her child, it being reasonably within her power to do so, such parent is considered as having aided and abetted such other person and thereby becomes a party to such abuse of her child and equally guilty. If, under such circumstances, the child dies as a result of such abuse by another person, the parent is held to be equally responsible for the death of the child.” 172 N.W.2d at 287-288.

      . Appellant further noted in her brief that in the state court habeas corpus evidentiary hearing at which only she testified, she testified that she was “not informed by the trial court that she was entitled to separate counsel.” This alone does not establish reversible error.
      It should further be noted that neither appellant nor the State called appellant’s trial attorney as witness at the State or Federal habeas corpus evidentiary' hearings.

      . We think Judge Wollman in his dissent saw the issue:
      In one respect it can be said that appellant benefited from Goode’s testimony and thus suffered no prejudice from the conflict, viz., because she was represented by the same attorney who represented Goode she had the benefit of Goode’s testimony, whereas had Goode been represented by separate counsel undoubtedly he would have been explicitly advised by his separate eounsel not to answer any questions concerning his participation in the disciplining of the child. This argument proves too much, however, because it demonstrated that it was in appellant’s interest to point the finger of guilt at Goode, an avenue of attack that should have been unreservedly and vigorously pursued by an attorney who had absolutely no duty to protect Goode’s interest. 195 N.W.2d at 399.


author: COLEMAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Thomas L. THAGGARD, Sr., and Vanzie Beasley, Defendants-Appellants.
    No. 72-2512.
    United States Court of Appeals, Fifth Circuit.
    April 16, 1973.
    Rehearing and Rehearing En Banc Denied June 8, 1973.

      J. Paul Lowery, Montgomery, Ala., for Thaggard.
    Calvin M. Whitesell, Montgomery, Ala., for Beasley.
    Ira DeMent, U. S. Atty., D. Broward Segrest, David B. Byrne, Jr., Asst. U. S. Attys., Montgomery,o Ala., for plaintiffappellee.
    Before COLEMAN, MORGAN and RONEY, Circuit Judges.
   COLEMAN, Circuit Judge:

A jury convicted Thomas L. Thaggard, Sr. and Vanzie Beasley of conspiracy wilfully and knowingly to directly and indirectly conduct, finance, manage, supervise, direct, and own all or part of a gambling business in violation of the laws of the State of Alabama, involving five or more persons for more than thirty days, 18 U.S.C. § 1955.

Defendants were also convicted, in the same trial, of a conspiracy to obstruct the enforcement of the criminal laws of the State of Alabama pertaining to gambling, 18 U.S.C, § 1511.

Upon these verdicts both men were sentenced to three years imprisonment for each offense to run concurrently.

Thaggard and Beasley assign fourteen reasons for the reversal of their convictions.

The judgment of the District Court is affirmed.

In June or July of 1971, Thomas L. Thaggard, Sr. asked one James R. Sadie to become a partner with him and Beasley in a gambling establishment. Thaggard stated, however, that he had heard of a recently enacted federal law against gambling and wanted to check on that law before proceeding further with the enterprise.

Prior to his appointment in that capacity the United States Attorney for that District had represented Thaggard in another prosecution, Thaggard v. United States, 5 Cir., 1965, 354 F.2d 735, cert. denied 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 1201, so Thaggard went to see his former counsel about the new “federal law”. The United States Attorney told Thaggard that he could not and would not advise him as to the statute but did give him a copy of it and told him to consult some other attorney about the matter. Thaggard did so stating that there would be only three partners or owners involved in the gambling operation. This attorney told Thaggard that he obviously would be in violation of the laws of Alabama but since “less than five persons would be involved, in his opinion there would be no federal violation”.

After this conference, Thaggard, Beasley, and Sadie, as the original owners, opened the gambling house in a concrete building in a remote rural area of Crenshaw County, Alabama. From July until December, 1971, the establishment operated four nights a week. Games of dice and blackjack were played; the customers were served drinks and steaks free. The actual operation of the gambling house, however, required more than three individuals. Several other persons were hired to operate the gaming tables, to prepare food, and to guard the automobiles of the patrons while they were inside the building. A busy night would see as many as fifty or sixty persons participating in the gambling.

Several local public officials were aware of the gambling but did not interfere with it.

Completely read and fairly construed, the record reveals that the defense to the indictments was that the accused knew they were violating the gambling laws of Alabama but, on the advice of counsel, had no intent to violate the federal statutes. In this context the case was tried, the defendants were convicted, and they now appeal.

Against this background we evaluate those assignments of error which, in our opinion, merit discussion.

1.

Because of pre-trial publicity, the trial court erred in not granting Thaggard’s motions for continuance and a change of venue.

Thaggard insists that the publicity he received during the protracted litigation of the bank larceny offense, Thaggard v. United States, supra, which came to an end seven years previously, had rendered him “notorious in the community”. This notoriety, coupled with the publicity given the gambling case, he says, immutably prejudiced his trial. Specifically, he refers to items which ran in the Montgomery Advertiser for the six months immediately preceding his trial.

The first article, on December 2, 1971 named the individuals involved in the gambling house and described in detail the operations of the establishment. The next article on May 5, 1972 featured front page pictures of Ray Horn, Drue Lackey, and Thomas Thaggard, Sr. It listed the individuals named in the indictment and quoted from portions of it. On May 10, 1972 a cartoon depicting a sign advertising the gambling establishment as “Cotton’s Place” appeared. The May 12, 1972 issue again named the persons charged in the indictment and stated each count under which the defendants were charged. On June 1, 1972 the paper reported that James Sadie had pleaded guilty to the charges and again named the persons in the indictment. On June 4, 1972 the paper reported the uncovering of a large sports bookmaking operation in the Montgomery area. (There apparently was no connection between this operation and the gambling house.) Several known gamblers, including Thomas L. Thaggard, Sr., were listed as participating in this betting operation. However, no mention was made of the upcoming trial of the defendants involved in the gambling at “Cotton’s Place”.

Upon qualifying the jury for cause, the trial judge directed all members of the venire who had read or heard anything of the case to stand for special questions. Each was individually asked if he could render a verdict upon the law and the evidence regardless of what had been heard or read. Only one responded in the negative, and was excused. A second juror was disqualified for relationship to an alleged co-conspirator. The remaining eleven of those who had heard or read of the case responded that their - verdict would not be affected by what they had heard or read.

The other nineteen members of the venire had not heard or read anything about the case. Thus, the defense began its peremptory challenges with nineteen individuals who had never heard of the ease and eleven who had heard of it, although with no fixed opinion as a result of what they had heard or read. The appellants were allowed ten peremptory challenges to the trial panel and one challenge as to the alternate juror. The defense exercised only six of their ten peremptory challenges.

This hardly creates a picture of one who is empaled upon pre-trial hostility or drowned in a sea of fixed opinions.

Whether a change of venue is mandated depends on whether “there exists in the district where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district”, Fed.R.Crim.P., Rule 21.

A motion for a change of venue is addressed to the discretion of the trial court and in the absence of an abuse of that discretion, the trial- decision will not be overturned on appeal. United States v. Nix, 5 Cir., 1972, 465 F.2d 90.

2.

18 U.S.C. § 1955 is an unconstitutional regulation of intrastate activities and is in violation of the Tenth Amendment to the Constitution.

The contention of the appellants in this regard is rejected on the authority of United States v. Harris, 5 Cir., 1972, 460 F.2d 1041. We hold the statute to be constitutional on its face and there was no unconstitutionality in its application. Out-of-state cars were seen in the gambling house parking lot, poker chips from Las Vegas were used, and interstate telephone calls were made from the gambling house.

3.

18 U.S.C. §§ 1955 and 1511 are unconstitutional in that they exempt activities conducted by a charitable or religious organization.

“The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same”, Tigner v. Texas, 310 U.S. 141, 147, 60 S.C. 882, 84 L.Ed. 1124 (1940). The l(tive history of 18 U.S.C. § 1955 ijtes that Congress was concerned wirganized crime, hence Congress hasoscrihed the gambling activities on \ ^ believes organized crime of aierstate character thrives and has ex&j those situations in which organi crime rarely appears. Accordingly,^ was a rational basis for excluding stable and religious organizations a the purview of these statutes.

4.

The Government failed propei0 introduce and prove a violation of Alabama law.

We reject this argument tuse our examination of the record ials that the specific statutes of the St of Alabama prohibiting the operatic 0f gambling houses were entered as adhibit in the ease. Moreover, the ry was instructed that a violation of *_ bama law must first be found befoia. conviction could be had. There s really no effort to deny or controvert violation of the Alabama gambling lac The argument was that there had be no intent to violate the federal statut From our reading of the record it woul have been impossible for the jury t have been in any way misled on this point.

5.

The trial court erroneously instructed the jury on the law as to advice of counsel and specific intent.

Appellants contend that the Government was required to prove specific intent to violate federal law, not just specific intent to commit the overt acts. They therefore object to the trial court’s definition of specific intent as stated in the instructions. Their defense is that they sought advice of counsel before entering into the gambling operation.

The trial court gave the following instruction on specific intent:

“Well, you have heard a lot about intent, and you heard me talk to you a few minutes ago that it was a case of specific intent. The offenses charged in this indictment are offenses which require proof of specific intent on the part of each defendant before a defendant can be convicted, can be found guilty. What does specific intent mean? Specific intent means more than a general intent to commit an act or acts. To establish specific intent, the Government must prove beyond a reasonable doubt, as to a defendant before that defendant can be convicted, that that defendant knowingly did an act which the law forbids purposely intending to violate the law. Such intent may be determined from all of the facts and circumstances surrounding the case as reflected by the evidence. It is not necessary that the Government prove, in order to convict a defendant, that a defendant knew each of the elements involved in the substantive statute or each of the elements involved in the statute that the indictment says the conspiracy was formed to violate in count one. It is sufficient that the conspiracy agreement, if any exists, contemplated the commission of a crime and that the crime contemplated is in fact in law a federal crime. The defendants must have specifically intended to commit each act or each of the acts that make up the offenses charged. As a general rule, it is no defense to a criminal prosecution that a defendant acted in good faith relying on the advice of counsel; however, advice of counsel may be shown where it tends to prove or disprove an intent to violate the law. Advice of counsel is not a defense — is not a defense — where it’s offered to tend to disprove that the defendant or defendants intended to violate the federal law; however, advice of counsel may be shown and considered by you jurors where it tends to disprove the intent to commit one or more of the acts involved. There must be a specific intent to commit each of the acts required in order to convict. The Government is not required to show that there must be a specific intent to violate a federal law but the Government must prove that there was a specific intent to commit each of the acts necessary to prove a violation of the federal law.”

The statutes here in question do not condition guilt upon knowledge that a federal law has been violated. It is sufficient that appellants intended to do all of the acts prohibited by the statute and proceeded to do them, Cruz v. United States, 10 Cir., 1939, 106 F.2d 828.

Advice of counsel, when given on full disclosure of all the facts and followed in good faith, may be a matter to be considered by the jury in determining the appellants’ guilt, Shushan v. United States, 5 Cir., 1941, 117 F.2d 110, cert. denied 313 U.S. 574, 61 S.Ct. 1085, 85 L.Ed. 1531. But where defendants know that their conduct is violative of state law, their wrongful purpose ab initio, established beyond a reasonable doubt, leaves them in no position to claim that they had no intention of violating a federal statute which, in fact, denounced the unlawful conduct as also constituting a federal crime. Defendants may have misunderstood the full reach of the federal statute but they deliberately took that risk when they set out upon a calculated violation of the laws of Alabama. The instructions gave them all, and possibly more than, they were entitled to receive under the facts of this case.

6.

The trial court erred in allowing <¡ue¡tions and answers pertaining to a remark made by Thaggard to witness Ben Allen Grooms.

Ben Allen Grooms was employed by the Alabama Bureau of Investigation, a private agency, as a security guard at the gambling establishment. Grooms testified as a witness for the prosecution. During Grooms’ testimony, the prosecutor, referring to an overt act charged in Count II of the indictment, asked if Thaggard had ever stated what it costPerate the Plaee- Grooms an«««voAt when he had expressed a concef)OUt the place being raided, Thag; replied that he need not worry since vas “paying three hundred dollars to open the doors”. Thaggarc}tends that the remark was prejudiced should not have been allowed® disagree. This was one of the ‘t acts charged in the indictment, United States v. McGann, 5 Cir., 1970, 431 F.2d 1104. The statement was admire against all the co-conspirators siiñhe statement of one conspirator main furtherance of a going conspiracy admissible in evidence against a coispirator, United States v. Nall, 5 Cir. 1971, 437 F.2d 1177.

7.

7 trial court erred in not granting Thaggard’s motion for mistrial after the prejudicial comment by the United States Attorney.

The United States called as its only ¡buttal witness the United States At>rney who had formerly represented .'haggard but who had not participated n the trial of the instant case because he had been subpoenaed (but not called) as a witness for the defense. This official came to the courtroom from time to time but did not see any substantial portion of the trial.

On direct examination Mr. DeMent was asked why he, as United States Attorney, chose not to prosecute certain other participants or conspirators in the illegal operation. On cross-examination one of thfe defense attorneys further inquired into the subject. On redirect the Government asked if there were other reasons or factors involved in choosing not to prosecute those particular defendants. At that point the following testimony occurred:

“A All right; as to Sheriff Horn, Sheriff Horn has been the Sheriff of Crenshaw County for over twenty years. He’s been in law enforcement for thirty-four years. He is sixty-three years old and in ill health. He has resigned in disgrace. It would serve, in my judgment, and I might add in your and Mr. Byrne’s judgment, no useful purpose to prosecute and convict a man who has served his state for over twenty years and in law enforcement for over thirty-four years and is sixty-three years old and in ill health. When he comes to you through his lawyers and says, T will resign immediately’, and he has two and a half years remaining on his term and he further says, ‘I will give you a statement to the effect that I will never seek public office again’, and his lawyers represent that he will tell you everything he knows about the conspiracy in Crenshaw County to operate — •
MR. STRAITON: We object to that, your honor.
THE COURT: Overrule it.
“A. To operate a gambling casino and when he says, ‘If you need me, I’ll testify’; we weighed whether we would be better off prosecuting and attempting to convict him or whether we would be better off getting an honest Sheriff in Crenshaw County appointed by the Governor, and I have spoken to Governor Jere Beasley- — ■
MR. LOWERY: We object to that.
THE COURT: I sustain it; that is not responsive.
MR. LOWERY: We move for a mistrial.
THE COURT: That is denied.”

Quite obviously, this line of testimony had no business in the trial. Neither side should have been allowed to drag it in. What the United States Attorney did about the prosecution of other defendants or conspirators in this case, and his motives for it, was solely within his discretion, certainly insofar as these or other defendants were concerned, United States v. Cox, 5 Cir., 1965, 342 F.2d 167, cert. denied 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700. Nevertheless, the testimony of the United States Attorney merely stated his reasons for not prosecuting the county sheriff. It contained no remarks directed toward the guilt or innocence of the defendants at the bar. Indeed, Mr. DeMent could have personally known nothing about that, except that he knew of Thaggard’s visit to his office which admittedly took place before the alleged criminal activities began. There is nothing in this skirmish which would justify a reversal.

8.

The trial court erred in not granting Thaggard’s motion for mistrial after the prejudicial comment by the Alabama District Attorney.

Alabama District Attorney Jesse Oliver Bryan was called as the closing witness for the Government. Bryan’s Judicial District included Crenshaw County. During direct testimony, he related the following telephone conversation with Billy King, County Solicitor of Crenshaw County:

“A. On 30 November, I called Billy King in the afternoon and said, ‘Billy, do you know anything about any illegal gambling operations going on up in northern Crenshaw County?’ And Billy precisely said to me—
MR. STRAITON: Your honor, we object to this.
THE COURT: Overrule it.
“A. —‘Job, I know about it’ — Job is my nickname down there — ‘but I swear that I have never taken a penny from them; Ray Horn has.’ And that sent me right up through the ceiling; I didn’t believe Ray Horn would do anything like that.
MR. LOWERY: Object to comments by the witness.
THE COURT: Sustain it.
MR. LOWERY: Move the Court for a mistrial.
THE COURT: As to the reaction of the District Attorney as to what County Solicitor King said, it wasn’t responsive to the question, it is excluded.
WITNESS: I am sorry; I am sorry.
THE COURT: It is excluded.”

This evidentiary occurrence provides no peg upon which to hang a reversal. The objection was “to comments by the witness”, the objection was sustained, and the comment was excluded. That ends the matter.

9.

The trial court prejudiced the jury when it admonished Thaggard’s attorney.

During recross-examination of the United States Attorney the following colloquy occurred between Thaggard’s counsel and the trial court:

“MR. LOWERY: Yes sir; your honor, we would move to exclude the testimony of Mr. DeMent as to the reasons stated for his selection of the various parties in this charge; on the grounds that it was highly prejudicial, it invaded the province of the jury as to whether — the guilt or innocence of the parties.
“THE COURT: Well, a trial is not a game, Mr. Lowery. The trial is to get the truth of the matter, and you have permeated this trial with questions and statements and testimony that a deal has been made and that some had been chosen and some hadn’t been chosen. Fairness requires that he be allowed to explain it; so your motion is denied.
“MR. LOWERY: All right, sir; we move for a mistrial.
“THE COURT: That motion is denied.”

Relying on the authority of United States v. Coke, 2 Cir., 1964, 339 F.2d 183; Gudger v. United States, 1963, 114 U.S.App.D.C. 263, 314 F.2d 268, United States v. Ah Kee Eng, 2 Cir., 1957, 241 F.2d 157; and United States v. Minuse, 2 Cir., 1940, 114 F.2d 36, Thaggard contends that the trial court’s comment was so prejudicial as to require a reversal. But in each of these eases with the exception of Gudger, the appellate court reversed on the basis of numerous and continuing comments and remarks by the trial judge. And the short per curiam decision in Gudger emphasized that the trial judge’s admonishment of defense counsel’s impugnment of a government witness may have negated counsel’s entire attack on credibility, thus invading the province of the jury. Any prejudice attributable to the court’s solitary comment was cured by his charge to the jury that they were to draw no inferences from any comments he may have made during the trial, Lacaze v. United States, 5 Cir., 1968, 391 F 2d 516.

10.

The trial court erred in allowing the Government to question the amount of fee Thaggard’s attorney received.

To at least one member of this panel, this is the most questionable aspect of the trial. As already stated, the defense, however poor it may have been, was that Thaggard and Beasley were relying on advice of counsel that their participation in the gambling establishment did not amount to a violation of federal law. In support of this defense, Mr. Straiton, a trial attorney for Thaggard, took the witness stand to verify the advice he had given Thaggard prior to the commencement of activities.

After his direct testimony, the following occurred on cross-examination:

BY MR. SEGREST (Assistant United States Attorney):
“Q. What is — what was your fee for this advice?
“A. I think my fee was fifty dollars, Mr. Segrest.
“Q. What is you fee. in this case? MR. WHITESELL: We object to that.
THE COURT: I sustain it.
MR. SEGREST: Your honor, don’t you think that would be admissible on bias, to show his bias in this case and as a witness.
MR. LOWERY: We will stipulate we got a fee, your honor; but we object to any discussion of the amount.
MR. SEGREST: We think the amount of it, the extent of it, would certainly affect his judgment and integrity as a witness and we would ask for permission to ask him that question.
THE COURT: All right; go ahead.
“Q. What is your fee in this ease, Mr. Straiton?
MR. LOWERY: We object.
THE COURT: Overrule it; I will permit it on that theory; I think I would have to.
“A. The fee that I received from Mr. Cotton Thaggard for representing — representing him was twenty five hundred dollars.
“Q. Now, what is the total fee of your firm; you — you are part of a firm, aren’t you ?
“A. Yes, sir.
“Q. What—
“A. Six thousand dollars.
“Q. And is that the total fee that you are to be paid in this case?
“A. Sir?
“Q. Is that the total extent of the fee you are to be paid in this case?
“A. Well, that is the total fee; yes.
“Q. How about expenses, now; are you to be paid expenses in addition?
“A. Yes, sir.”

Cross-examination as to the amount of the fee paid to counsel for services in the case then on trial before the jury should not have been admitted. Attorney Straiton took the stand to verify Thaggard’s request for legal advice. Without objection he. stated that he received a fee for the advice and it was stipulated that the trial attorneys were receiving a fee for their services. The objection was to stating the amount of the fee. The prosecutor stated that he wished to prove the amount as reflecting the possible bias and prejudice (credibility) of the attorney-witness. If the jury wished to consider Straiton’s status as attorney as bearing upon his credibility, that fact had been obvious from the beginning of the trial. That he had been paid a fee had been stipulated. Defendants have a constitutional right to counsel and attorneys are not expected to work free, even for indigents. The Criminal Justice Act provides some remuneration even for court appointed attorneys, although paid by the taxpayers. As we divine it, the real purpose for eliciting this information was to suggest that it took a big-time gambler to pay such a fee, plus the thought that Thaggard really feared a conviction and was willing to pay a “big fee” in the hope of avoiding conviction. We have no doubt that under ordinary circumstances this maneuver was both improper and prejudicial and would warrant a reversal.

Nevertheless, upon mature reflection and cool analysis we are left with an abiding conviction that the guilt of the defendants in this case was so irrefutably evident that even in an errorless trial an acquittal would have been an incredible event. Under the jurisprudence applicable to errors which are harmless beyond a reasonable doubt, we decline to reverse the convictions.

We are not unaware of the proposition that allowing prosecutors to escape reversal by the application of the harmless error rule may tempt some to wield any available stick, if the trial court permits it, hoping to get the conviction first and then to take refuge at the altar of harmless error. Prosecutors should try their cases within the rules of evidence and our decision in this case is never to be construed as an invitation to do otherwise. We decide this case on the precept that the ends, of justice do not require a reversal for this lapse; otherwise, one unhesitatingly would be ordered.

The remaining points of the fourteen originally raised do not merit discussion.

The judgment of the District Court as to both appellants is

Affirmed.


author: FEINBERG, Circuit Judge: J. JOSEPH SMITH, Circuit Judge

text:
    Theodore GOETZ, by his next friend Jane Sanford, Appellant, v. George S. ANSELL, Individually and as President of Board of Education of North Colonie Central School District, et al., Appellees.
    No. 774, Docket 73-1352.
    United States Court of Appeals, Second Circuit.
    Argued March 21, 1973.
    Decided April 19, 1973.
    Alan H. Levine, New York City (Eve Cary, New York City, Margrethe Powers, Albany, N. Y., on the brief) for appellant.
    David W. Morris, Albany, N. Y., for appellees.
    Before SMITH, FEINBERG and MANSFIELD, Circuit Judges.
   FEINBERG, Circuit Judge:

Plaintiff Theodore Goetz, a senior at Shaker High School in Latham, New York, an honor student and the president of his class, refuses to participate in the Pledge of Allegiance because he believes “that there [isn’t] liberty and justice for all in the United States.” Defendants George S. Ansell, President of the Board of Education of North Colonie Central School District, Charles Szuberla, Superintendent of Schools in that district, the Board of Education of the district, and Arthur E. Walker, principal of Shaker High School, have offered plaintiff the option of either leaving the room or standing silently during the pledge ceremony. But plaintiff •maintains that he has a first amendment right to remain quietly seated, even though if he adheres to that position, he faces suspension from school. This is the basis of his action brought by his next friend Jane Sanford in the United States District Court for the Northern District of New York under 42 U.S.C. § 1983. After a hearing before Chief Judge James T. Foley on plaintiff’s application for a preliminary injunction, the judge dismissed the complaint for failure to exhaust administrative remedies and, alternatively, ruled against plaintiff on the merits. We conclude that both rulings were erroneous.

I

Judge Foley clearly had in mind that “[a]ny person conceiving himself aggrieved” by the act of a school official may, under N.Y.Educ.Law § 310, McKinney’s Consol.Laws, c. 16, appeal to the New York State Commissioner of Education. The judge also referred in his opinion to a possible appeal to defendant Board of Education. Putting to one side the question whether the doctrine of exhaustion of administrative remedies still applies in a section 1983 suit, invoking it on these facts was clearly unwarranted. The Board of Education had ruled on the precise point only a year earlier in a case involving plaintiff’s older brother; indeed, plaintiff had testified before the Board as a witness in that case. Thus, this remedy was “certainly or probably futile.” Eisen v. Eastman, supra note 1, 421 F.2d at 569. Similarly, the State Commissioner of Education had ruled on the issue in 1970, holding that requiring a student “either to stand silently or to leave the classroom” did not infringe his rights. The Commissioner cited that decision with implicit approval the following year, and thereafter issued guidelines that indicated no subsequent change of heart. Under these circumstances, there was no real remedy to exhaust.

II

This brings us to the merits of plaintiff’s case. In West Virginia State Board of Education v. Barnette, 319 U. S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), the Court made clear, in Mr. Justice Jackson’s memorable words, that

no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

Id. at 642, 63 S.Ct. at 1187. It is true that the Court dealt in that case with the compulsion of saluting the flag and reciting the pledge, whereas here plaintiff is given the option of standing silently. But the Court in Barnette was aware that the state might demand other “gestures of acceptance or respect: . a bowed or bared head, a bended knee,” id. at 632, 63 S.Ct. at 1182, and reiterated that the state may not compel students to affirm their loyalty “by word or act.” Id. at 642, 63 S.Ct. 1178. In this case, the act of standing is itself part of the pledge. New York State Regulations so provide; and standing “is no less a gesture of acceptance and respect than is the salute or the utterance of the words of allegiance.” Banks v. Board of Public Instruction, 314 F.Supp. 285, 296 (S.D.Fla.1970) (three-judge court), aff’d mem., 450 F.2d 1103 (5th Cir. 1971). Therefore, the alternative offered plaintiff of standing in silence is an act that cannot be compelled over his deeply held convictions. It can no more be required than the pledge itself.

Defendants point out, however, that plaintiff has the option of leaving the classroom; he is not, as in Barnette, excluded from the school. While we agree that the effect upon plaintiff of adhering to his convictions is far less drastic than in Barnette, we do not believe that this disposes of the case. If the state cannot compel participation in the pledge, it cannot punish non-participation. And being required to leave the classroom during the pledge may reasonably be viewed by some as having that effect, however benign defendants’ motives may be. See Abington School District v. Schempp, 374 U.S. 203, 292, 83 S.Ct. 1560, 1608, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring) (“[T]he excluded pupil loses caste with his fellows, and is liable to be regarded with aversion, and subjected to reproach and insult.”).

Recognizing the force of Barnette and of Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (upholding right of students to wear black arm band), defendants concede that plaintiff has a protected first amendment right not to participate in the pledge. They argue, however, that the other students also have rights and that Tinker does not protect conduct that

materially disrupts classwork or involves substantial disorder or invasion of the rights of others ....

Id. at 513, 89 S.Ct. at 740. The argument is sound, but the facts of this case do not justify applying it. There is no evidence here of disruption of classwork or disorder or invasion of the rights of others. The record is just to the contrary: Plaintiff took a poll of his approximately 30 classmates; 25 said that it did not disturb them that plaintiff had remained seated during the pledge earlier in the year and the other five he “could not contact or else they did not see” him. Defendants ask where, if plaintiff prevails, the line is to be drawn. May plaintiff “kneel, lie down, stand on his hands? May he make derisive motions ?” Those situations are not before us, and we doubt that they will occur in the North Colonie Central School District, any more than they have occurred in the New York City school system after Judge Judd’s decision in Frain v. Baron, supra note 4, which wholly accepted plaintiff’s position. Of course, if such disruptive acts should occur, we would have no hesitancy in holding them unprotected. But we do not believe that a silent, non-disruptive expression of belief by sitting down may similarly be prohibited. While we do not share plaintiff’s resistance to pledging allegiance to this nation, his reservations of belief must be protected. In time, perhaps, he will recognize that such protection is sound ground for a firmer trust in his country.

Judgment reversed.

J. JOSEPH SMITH, Circuit Judge

(concurring):

I fully concur in the reasoning of my brother Feinberg. However, I do not share in any possible implied doubt that any requirement of exhaustion of administrative remedies in § 1983 cases has survived Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971) (per curiam).

      . See H. Friendly, Federal Jurisdiction: A General View 100 & n. 111 (1973) (discussing Eisen v. Eastman, 421 F.2d 560, 569 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct., 82, 27 L.Ed.2d 75 (1970)); Russo v. Central School District No. 1, 469 F.2d 623, 628 n. 5 (2d Cir. 1972), cert. denied, 411 U.S. 932, 93 S.Ct. 1899, 36 L.Ed.2d 391 (1973); James v. Board of Education, 461 F.2d 566, 570-571 (2d Cir. 1972), cert. denied, 409 U.S. 1042, 93 S.Ct. 529, 34 L.Ed.2d 491 (1972). But see Carter v. Stanton, 405 U.S. 669, 670-671, 92 S.Ct. 1232, 31 L. Ed.2d 569 (1972) (per curiam); Wilwording v. Swenson, 404 U.S. 249, 251-252, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971) (per curiam).

      . In re Bielenberg, 9 Ed.Dept.Rep. 196 (1970).

      . In re Bustin, 10 Ed.Dept.Rep. 168, 169 (1971).

      . New York State Education Dep’t, Guidelines for Students Rights and Responsibilities 16 (undated pamphlet), which, while citing a recent district court decision upholding the Commissioner’s position, Richards v. Board of Education, 70-C-625 (E.D.N.Y. July 10, 1970), unaccountably makes no reference to a decision of the same court enjoining enforcement of this very rule in New York City schools. Frain v. Baron, 307 F.Supp. 27 (E.D.N.Y.1969).

      . This probably explains why defendants do not press the exhaustion argument on appeal.

      . “In giving the pledge to the flag, the procedure is to render the pledge by standing with the right hand over the heart.” 8 CRRNY § 108.5(b). (Emphasis added.)

      . The decision of the three-judge court in Banks was appealed to the Supreme Court, which vacated and remanded “so that a fresh decree may be entered from which a timely appeal may be taken to the United States Court of Appeals . . . . ” 401 U.S. 988, 91 S.Ct. 1223, 28 L.Ed.2d 526 (1971). The single judge then entered an order adopting the findings of fact and conclusions of law of the three-judge court concerning the first amendment issue. This order was then affirmed by the circuit court, as indicated in the text.

      . Appellees’ Brief, at 8.

      . Contrary to defendants’ suggestion, this court’s decision in Russo v. Central School District No. 1, supra note 1, does not represent a rejection of the holding in Frain v. Baron, supra note 4, and is in no sense contrary to the result that we reach here.