author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    Barbara FLETCHER et al., etc., Plaintiffs, Appellants, v. RHODE ISLAND HOSPITAL TRUST NATIONAL BANK et al., Defendants, Appellees.
    No. 73-1372.
    United States Court of Appeals, First Circuit.
    Argued March 5, 1974.
    Decided May 9, 1974.

      James L. O’Neill, Providence, R. I., with whom Bucci, O’Neill & Coia and Ralph J. Gonnella, Providence, R. I., were on brief, for appellants.
    Edwin H. Hastings, Providence, R. I., with whom Tillinghast, Collins & Graham, Providence, R. I., was on brief, for Old Stone Trust Co., appellee.
    Stephen A. Fanning, Jr., Providence, R. I., with whom Deming E. Sherman and Edwards & Angelí, Providence, R. I., were on brief, for Rhode Island Hospital Trust National Bank and BankAmericard Assn, of Rhode Island, Inc., appellees.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

Barbara Fletcher had a checking account at the Rhode Island Hospital Trust National Bank, and Marion Sass had such an account at the Old Stone Trust Co. Both have alleged in a complaint filed in the district court that, without request, the respective banks sent them each a BankAmericard; that each bank later claimed an indebtedness arising from use of the card; and that each bank, without notice to the cardholder or her approval, set off the amount in her checking account against the debt from use of the card.

Neither plaintiff alleges that she did not owe the card indebtedness to the bank at the time her deposit was set off in partial satisfaction. Rather each contends that the set off was unconstitutional because without notice and hearing, see Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) and, alternatively, that the failure to disclose the right to set off when issuing the credit card was in violation of the Consumer Credit Protection Act (the Act), 15 U.S.C. § 1637(a)(7). Damages, an injunction, and a declaration are sought. Upon defendants’ motion, the district court dismissed for failure to state a claim, F.R.Civ.P. 12(b) (6), and plaintiffs appealed.

I

Count 1, the constitutional claim, belongs to a growing number of post-Fuentes attacks oh private collection procedures. Brought under 42 U.S.C. § 1983, it alleges that “the right of banker’s set off against deposit funds as recognized and enforced in the common law and not prohibited in the statutory law” violates the Fourteenth Amendment by authorizing seizure of deposited funds without prior notice and opportunity to be heard. The district court held, however, that the banks’ actions were not “under color of” state law within the meaning of § 1983. Citing “overwhelming authority at the present time” that repossession of goods under a conditional sales contract, pursuant to Section 9-503 of the Uniform Commercial Code, is not state action, it said,

“the exercise by the defendant banks of their common-law right of set off is even farther [sic] removed from any state involvement. Here we do not even have . . . the enactment of a statute. These actions by the defendants were purely private actions in furtherance of their private interest.”

It is not disputed that a claim under § 1983 requires “state action”. Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883). A defendant, as the statute provides, must have acted “under color of” state law; and for a plaintiff to be deprived of a right secured by the Fourteenth Amendment, the state itself, not a mere private party, must have taken property without due process of law.

Plaintiffs would have us find state action from (1) the sanctioning in Rhode Island of the practice of bank set off, and (2) the state’s own involvement with the banking industry. We shall discuss the two theories separately. As did the district court, and as have most other federal courts, including the second, eighth and ninth circuits, in analogous self-help cases, we conclude that the challenged action was private, not state, and so we affirm the dismissal of Count 1. See Bichel Optical Laboratories, Inc. v. Marquette Nat’l Bank, 487 F.2d 906 (8th Cir. 1973); Jojola v. Wells Fargo Bank, No. C-71 900 SAW (N.D.Cal. May 8, 1973); cf. Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974); Adams v. Southern Cal. First Nat’l Bank, 492 F.2d 324 (9th Cir. 1973); Shirley v. State Nat’l Bank, 493 F.2d 739 (2d Cir. 1974) ,

State Sanction of Set Off

In Westerly Community Credit Union v. Industrial Nat’l Bank, 103 R.I. 662, 667-668, 240 A.2d 586, 589-590 (1969), the Supreme Court of Rhode Island stated,

“As a general rule a bank may look to deposits in its possession for repayment of any material indebtedness owed to it on the part of a depositor, [citation omitted] Such a right grows out of the contractual relationship existing between the depositor and the bank which arises at the time the depositor delivers and commits money to the bank’s custody. . The right of a bank to apply deposits to extinguish a debt owed to it by a depositor is referable to principles of equity and in some states receives additional support from statutory law; ft

Plaintiffs argue that recognition of set off changed the common law so as to allow a bank to deprive citizens of property without resort to courts. But we disagree that Westerly reflects a break with tradition. Plaintiffs rely upon cases dealing with set off as a pleading device, a different matter. As used here to describe a banker’s right growing from his contract to offset mutual debts, the term refers to a familiar self-help practice (once called a “right of stoppage”) that has been accepted for years in this country. See Studley v. Boylston Bank, 229 U.S. 523, 527-528, 33 S.Ct. 806, 57 L.Ed. 1313 (1913). A Rhode Island case decided half a century before Westerly makes reference to the practice, Hungerford v. Curtis, 43 R.I. 124, 110 A. 650 (1920), which is in no way unique to Rhode Island. See 10 Am.Jur. 2d Banks § 666 (1963); 9 C.J.S. Banks and Banking § 295 (1938). See generally United States v. Butterworth-Judson Corp., 267 U.S. 387, 394-395, 45 S.Ct. 338, 69 L.Ed. 672 (1925); New York County Nat’l Bank v. Massey, 192 U.S. 138, 24 S.Ct. 199, 48 L.Ed. 380 (1904).

That a creditor should refuse to pay out money for one who already owes him a debt is not surprising. Had the banks not been able to do so without signalling their intentions, the funds might have gone swiftly, and there would have been no other assets to satisfy the banks’ claims. In any event, whatever the truth of the old saw that possession is nine-tenths of the law, a creditor who holds'something of value to his debtor is differently situated from one who does not: he does not need the state to facilitate his collection efforts.

The cases upon which plaintiffs must rely contain the further ingredient of the state’s having helped in the seizure of the debtor’s property. In Fuentes the state court issued writs of replevin and these were executed by state officials. The creditor could obtain the property peacefully only by the affirmative intervention of the state. In footnote 12, the Fuentes court recognized the difference between a state’s lending process to a creditor and a creditor’s proceeding “without the use of the state power, through self-help, by ‘distraining’ the property before a judgment.” Id. at 79. Similarly in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), a garnishment writ was issued by a state court clerk.

Yet notwithstanding Rhode Island’s lack of instrumental assistance, plaintiffs maintain that the state creates, enforces, or encourages “the impetus” for the private actions, and thus “acts” even though it may not be involved with the banks or the challenged action. See, e. g., Adickes v. S. H. Kress & Co., 398 U. S. 144, 170, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); cf. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). We do not believe, however, that Rhode Island’s mere passive acceptance of a bank’s ability to help itself is encouragement enough to constitute state action. There are myriad more or less conventional private property rules which a state may define, codify or- — as here — simply acknowledge. In the ordinary case such state judicial or legislative activity in the economic sphere is not, by itself, state action. Rhode Island has done no more than announce acceptance of a familiar private practice. She has not created or encouraged it. Her courts have not even addressed themselves to the procedural aspects set off. of

In Moose Lodge No. 101 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), a state’s granting of liquor, licenses to clubs practicing private discrimination was held not to be such encouragement of the practice as to involve the state significantly. “[Wjhere the impetus for the discrimination is private the State must have ‘significantly involved itself . . . ’ to fall within the ambit of the constitutional prohibition.” Id. at 173. The impetus for bank set off is private, and we fail to see how the state’s passive acquiescence amounts to involvement beyond that present in Moose Lodge. See also Evans v. Abney, 396 U.S. 435, 90 S.Ct. 628, 24 L.Ed.2d 634 (1970).

Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), lends the greatest theoretical support to the argument that a state’s common law doctrine may amount to state action. The Court held unconstitutional an amendment to California’s constitution providing that the state could not limit a person’s right to sell or rent his real property to whomever he chooses. The amendment was aimed at state laws curbing racial discrimination in housing. The Court held that the amendment not only altered the law but significantly involved the state in racial discrimination. In the instant case, however, Rhode Island has not acted affirmatively to terminate protections once afforded to bank depositors. Its legislature remains unfettered to regulate or eliminate bankers’ set off should it choose. Finally, Reitman stands as an outer marker. “[A]n extension of Reitman . . . would subject most private conduct to fourteenth amendment standards”, including virtually all contractual relations and testamentary dispositions. Comment, Power of Sale Foreclosures after Fuentes, 40 U.Chi.L. Rev. 206, 218 (1972). In Reitman the Court seemed to recognize the unique limitations of its decisions, commending the California court because

“ [i] t did not read either our cases or the Fourteenth Amendment as establishing an automatic constitutional barrier to the repeal of an existing law . . .; nor did the court rule that a State may never put in statutory form an existing policy of neutrality with respect to private discriminations.” Id. at 376.

We question if a case forged from the nation’s continuing struggle with the cancer of racial discrimination can in every particular be transferred to one dealing with bankers’ set off. See Adams v. Southern Calif. First Nat’l Bank, supra at 333; Shirley v. State National Bank, supra at 744-745. As Judge Friendly has suggested, “[R] acial discrimination is so peculiarly offensive and was so much the prime target of the Fourteenth Amendment that a lesser degree of involvement may constitute ‘state action’ with respect to it than would be required in other contexts ... .” Coleman v. Wagner College, 429 F.2d 1120, 1127 (2d Cir. 1970) (concurring opinion). We conclude that bank set off is a private self-help remedy. Rhode Island’s involvement therewith is too slight to constitute state action.

Involvement of State with Banks

As’ an alternative approach, plaintiffs would have us find state action from the state’s participation in the affairs of private banks. Relying upon such terms as “quasi-monopoly”, “symbiotic relationship”, “joint venture”, and the like, plaintiffs emphasize that banks are regulated and serve important public needs. The question is not, however, to be answered by slogans. We have to examine specifies in order to determine whether in engaging in the challenged practice the banks are so “endowed by the state with governmental powers or functions . . . that they were considered in essence agencies or instrumentalities of the state and consequently subject to constitutional limitations.” Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153, 161 (6th Cir. 1973).

The mere fact that banks are closely regulated by the state, R.I.G.L. Title 19, § 1-1 et seq., and federal government does not render all they do state action. Moose Lodge holds, in essence, that a state's ability to regulate or prohibit a practice it has chosen to ignore, although it regulates other activities of the defendant, does not constitute state action.

“[T]he state must be involved not simply with some activity of the institution alleged to have inflicted injury upon a plaintiff but with the activity that caused the injury.”

Powe v. Miles, 407 F.2d 73, 81 (2d Cir. 1968); cf. Particular Cleaners, Inc. v. Commonwealth Edison Co., 457 F.2d 189 (7th Cir. 1972). We find nothing contrary in Public Utilities Comm’n v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068 (1952); a government commission had investigated and approved the challenged programming.

Plaintiffs seek to draw support from cases finding state action when a public utility terminates service to a nonpaying customer. In Palmer, the sixth circuit found that the gas company, which had entered upon private property pursuant to a state statute, enjoyed a total monopoly, provided a necessity of life and, in performing a public function, exercised powers usually reserved to the state. Such a corporation belongs to a category sometimes called “quasi-public”. Having been granted a monopoly over a vital public service it may be visualized as doing what the state itself might otherwise have to do. See Note, Fourteenth Amendment Due Process in Terminations of Utility Services for Nonpayment, 86 Harv.L.Rev. 1477 (1973). There is little parallel to the defendant banks. While banks are termed “quasi-monopolies” by plaintiffs, they exist in sizable number. To the extent that the limitation upon licenses, R. I.G.L. Title 19, § 1-5, confers a “monopoly”, the banks are no different from the holders of liquor licenses in Moose Lodge. Furthermore, as already discussed, the set off procedure, unlike the utility’s statutory right of entry on private premises, carries no special grant of power. When a utility was able to cut off services without entry upon private property, no state action was found —the court holding that “affirmative support must be significant.” Lucas v. Wisconsin Electric Power Co., 466 F.2d 638 (7th Cir. 1972), cert. denied, 409 U. S. 1114, 93 S.Ct. 928, 34 L.Ed.2d 696 (1973). Finally, the credit and banking services made available to plaintiffs, valuable though they may be, are not basic necessities of life.

Appellants are no more successful in their attempt to place themselves within Lavoie v. Bigwood, 457 F.2d 7 (1st Cir. 1972). In that case we held that the confluence of court-enforced eviction and monopoly power created by zoning so implicated the state as to subject a private mobile home park owner to suit under § 1983. A condition of living in any mobile home in the area was that plaintiff locate his trailer in defendant’s mobile home park.

“[A] neutrality test is inapposite where the state gives special support to a nominally private party or, for other purposes, markedly restricts alternatives to dominion by a private party.” Id. at 14.

In the instant ease, Rhode Island is not alleged to have given special support to the defendant banks nor has it in any way restricted plaintiffs’ alternatives.

The symbiotic relationship described in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), does not exist here. In Burton the land and the building containing the offending restaurant were publicly owned. There were close physical and business relationships between lessor and lessee. The Court found that the profits earned by discrimination practiced in the restaurant were an indispensable element in the financial success of a government agency. Although the defendant banks undoubtedly contribute to the general revenue like all other corporate taxpayers no particular agency or program of the state is financially tied to their profitability. Rhode Island does not provide the property on which the bank is located nor contribute in any direct way to its operation. The state has not “insinuated itself into a position of interdependence”. Id. at 725.

Appellants maintain that the comprehensive system of monitoring carried out by the state has inextricably intertwined Rhode Island with the banks’ activities. Yet McQueen v. Drueker, 438 F.2d 781 (1st Cir. 1971), cited in support of this proposition, expressly disavows reliance on financial subsidy and regulation. The government chose to use private persons to carry out a specific governmental objective — providing for urban renewal displacees. Insofar as appellants ask us to limit Moose Lodge to private social clubs, we decline to accept a distinction which could lead to finding state action in all forms of commercial enterprises open to the public and would totally eviscerate the state action doctrine. Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), is so plainly distinguishable on its facts as to require no discussion. “Open to the public” should not be confused with “public function.” See Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972).

As all the arguments considered together or individually analyzed are insufficient to raise a colorable claim under § 1983, the court correctly dismissed on the pleadings under Rule 12(b)(6). See generally Shirley v. State Nat’l Bank, supra; Kirksey v. Theilig, 351 F.Supp. 727 (D.Colo.1972); Greene v. First Nat’l Exchange Bank, 348 F.Supp. 672 (W.D.Va.1972).

II

In Count 2, plaintiffs allege that under § 127 (a) (7) of the Consumer Credit Protection Act, 15 U.S.C. § 1637(a)(7), and § 226.7(a)(7) of Regulation Z, 12 C.F.R. 226.7(a)(7), defendants were supposed to disclose the conditions under which they might retain or acquire any “security interest” in the property of the plaintiffs, and to describe the security interest. Plaintiffs further allege that the privilege of set off exercised by the banks is a security interest, and that either the banks did not disclose and describe it or else whatever was disclosed was not made “clearly, conspicuously or ■meaningfully” as required.

The district court ruled that the bank’s common law set off right was not a security interest within the meaning of 15 U.S.C. § 1637(a)(7). Noting that the legislative history provided no aid on the question, it pointed out that pursuant to authority of § 105 of the Act, 15 U.S.C. § 1604, the Board of Governors of the Federal Reserve System had promulgated regulations defining “security interest” as “any interest in property which secures payment or performance of an obligation.” 12 C.F.R. § 226.2 (zj. The court went on to say,

“In my opinion it is palpably clear the status of a depository bank, vis-avis deposited funds, is that of a debt- or, not that of a secured creditor. The indebtedness of the plaintiffs, and that of others similarly situated, arose from transactions completely unrelated to the deposit of their money in the respective defendant banks. With regard to this indebtedness the banks are unsecured creditors. This is evidenced by the fact that the depositor is at all times free to withdraw his funds from the bank. The exercise by a bank of its long-recognized right to apply deposited funds against such indebtedness is nothing more than the setting-off of mutual, unsecured debts. To accept the plaintiffs’ contention that the right to set-off is ‘in the nature of a security interest’ would be to stretch the meaning of that term beyond reasonable limits.”

We regard the question as somewhat closer than did the district court, but we reach the same conclusion.

Plainly a banker’s privilege to apply the debt arising from a deposit against a depositor’s unrelated debt to the bank is not a security interest in the ordinary sense. See United States v. Sterling Nat’l Bank, 360 F.Supp. 917 (S.D.N.Y. 1973). But see United States v. Harris, 249 F.Supp. 221 (W.D.La.1966). A deposit of money to one’s credit in a bank, although it may give rise to a set off allowing the bank to obtain more than other general creditors, “is not a transfer of property as a payment, pledge, mortgage, gift or security.” New York County Nat’l Bank, supra, 192 U.S. at 147. A security interest arises usually when the creditor-retains an interest at the time he extends credit. Here the depositor extended credit to the bank when she made her deposit; under Rhode Island law, as the district court stated, the money deposited belongs to the bank and the bank stands in a debtor-creditor relation to its depositor. Westerly Community Credit Union, supra, 103 R.I. at 668, 240 A.2d at 589. When the bank extended credit, it acquired no new collateral. Even if the bank had a policy of extending credit only when savings haá reached a certain level, and therefore considered the savings to be collateral for the extension of credit, the savings were not deposited for the purpose of creating a security interest and obtaining the credit. Unlike the case with commercial transactions secured by accounts receivable or contract rights, .the bank as creditor does not acquire the debtor’s right to payment. It has, instead, a right as debtor to refuse payment, thereby limiting loss. This wholly negative quality is foreign to secured transactions which give to the creditor an affirmative right to receive or retain something — money, tangible property, or performance of a contract. The principal draftsman of Article 9 of the Uniform Commercial Code criticized § 9-104(i) thereof, which excludes set off from its coverage, because

“[o]f course a right of set-off is not a security interest and has never been confused with one: the statute might as appropriately exclude fan dancing.” 1 G. Gilmore, Security Interests in Personal Property § 10.7 at 315-16 (1965).

For such an unusual application to be read into the term “security interest”, especially in a statute with civil penalties, we think Congress, or at least the Federal Reserve Board as the agency-invested with power to issue regulations, should first say so. The defendant banks are otherwise not forewarned as to the illegal conduct. It is true that the list of security devices in Regulation Z does not purport to be exhaustive; nonetheless, the Board undertook to specify a wide variety of devices, none of which — though some are not security interests in the strict sense — include the cancellation of mutual debts.

We recognize that a persuasive argument can be found in the protective purpose of the Act. Whatever its technical niceties, set off from a consumer’s view is arguably similar to conventional security interests. Like any of them, it may be a significant term of the credit transaction. As Judge Moore wrote in N. D. Freed Co., Inc. v. Board of Governors, 473 F.2d 1210, 1214 (2d Cir.), cert. denied, 414 U.S. 827, 94 S.Ct. 48, 38 L.Ed. 2d 61 (1973),

“The avowed purpose of the Consumer Credit Protection Act, enacted in 1968 after eight years of Congressional consideration, was to ‘assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.’ [15 U.S.C. § 1601.]”

In shopping for credit, a potential card holder might well like to know that if she uses a card from her own bank, her checking account will be the security in an everyday, if not legal, sense.

Yet in deciding Freed, the second circuit was aided not only by reference to the Act’s remedial purpose but by a particularized legislative history and by the language of a Board regulation. Indeed, the issue before the court was simply whether or not to sustain a regulation adopted by the Board. The regulation reflected “contemporaneous construction of a statute by the agency charged by Congress with the administration of the Act.” Id. at 1217. See Gardner & North Roofing & Siding Corp. v. Board of Governors, 150 U.S.App.D.C. 329, 464 F.2d 838 (1972); Douglas v. Beneficial Finance Co., 334 F.Supp. 1166 (D.Alaska 1971), rev’d on other grounds, 469 F.2d 453 (9th Cir. 1972). In the instant situation, the Board has not spoken at all on set off as a security interest.

Furthermore, last summer a Senate committee reported out amendments to the Act dealing for the first time with set off, but not under the heading of a “security interest”. Senate Comm, on Banking, Housing, and Urban Affairs, Rep.No.93-278, 93d Cong., 1st Sess. 9 (1973). The bill, which has passed the Senate, rather than modifying the current disclosure section, treats the practice in a new chapter dealing with credit billing. 14 Cong.Rec.S. 14414 (daily ed. July 23, 1973). It would prohibit set off unless the cardholder agrees to permit the bank periodically to pay the indebtedness by deducting appropriate amounts from the cardholder’s account. The author of the amendments, Senator Proxmire, was also a principal sponsor of the Act; the way set off is handled in the amendments gives little support to any notion that the original Senate sponsors envisaged it to be a security interest. Moreover, set off procedures differ somewhat between states, and the proposed legislation would deal more sensitively than can a court with the varying problems of regulation. Thus, there is good reason not to outpace Congress but to await its judgment. We conclude that set off is outside the Act’s present compass.

No issue is raised on appeal concerning the class action aspects of this litigation. Since no class determination was made by the district court, the dismissal affirmed by us is not, of course, res judicata as to any of the alleged class members.

Affirmed.

      . Barbara Fletcher’s card indebtedness was allegedly $796.36, and Marion Sass’ $982.44. The checking account balances set off were $291.30 and $73.98. The complaint alleges that the checking account balances “represented the only liquid form of property available” to each, and that they depended upon them “for providing the maintenance of [their] wellbeing”.

      . Fletcher and Sass filed a joint notice of appeal pursuant to F.B..A.P. 3(b) and, therefore, both parties are properly before the court.

      . 42 U.S.C. § 1983: “Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

      . “State action” and “under color of” state law are usually treated as one and the same, although analytically there may be a difference. Adickes v. S. H. Kress & Co., 398 U. S. 144, 210, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (Brennan, J., concurring in part); Lavoie v. Bigwood, 457 F.2d 7, 15 (1st Cir. 1972). Arguably, the seizure here, being sanctioned by Rhode Island law, was “under color” thereof, but was not state action in the Fourteenth Amendment sense as there was no deployment of state process or machinery on behalf of the creditor banks. Cf. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L.Ed.2d 349 (1969). We do not attempt any such refined analysis but use “state action” in both senses interchangeably.

      . See also Kinch v. Chrysler Credit Corp., 367 F.Supp. 436 (E.D.Tenn.1973) ; Johnson v. Associates Finance, Inc., 365 F.Supp. 1380 (S.D.Ill.1973) ; Nichols v. Tower Grove Bank, 362 F.Supp. 374 (E.D.Mo.1973) ; Shelton v. General Electric Credit Corp., 359 F.Supp. 1079 (M.D.Ga.1973) ; Pease v. Havelock Nat’l Bank, 351 F.Supp. 118 (D.Neb. 1972) ; Kirksey v. Theilig, 351 F.Supp. 727 (D.Colo.1972) ; Greene v. First Nat’l Exch. Bank, 348 F.Supp. 672 (W.D.Va.1972) ; Oller v. Bank of America, 342 F.Supp. 21 (N. D.Cal.1972) ; McCormick v. First Nat’l Bank, 322 F.Supp. 604 (S.D.Fla.1971). Contra, Gibbs v. Titelman, 369 F.Supp. 38 (E.D.Pa.1973) ; Boland v. Essex County Bank & Trust Co., 361 F.Supp. 917 (D.Mass.1973) ; Straley v. Gassaway Motor Co., Inc., 359 F.Supp. 902 (S.D.W.Va.1973).

      . The complaint requests only a declaration of unconstitutionality of that “portion of its common law.” Rhode Island had adopted provisions of the Uniform Commercial Code which tangentially recognize “any right” of set off a bank may have, but do not establish or define such a right. R.I.G.L. Title CA, § 4-213(4), (5).

      . In Hall v. Garson, 430 F.2d 430 (5th Cir. 1970), a state law authorizing a landlord to execute a lien transferred to a private party power traditionally reserved to the sheriff. The instant case involves no such usurpation of an historic state function. See also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 300, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (challenged procedures prescribed by state); Boland v. Essex County Bank, supra (self-help' likely to involve close working arrangement with police); Santiago v. McElroy, 319 F.Supp. 284 (E.D.Pa.1970) (state officers perform distress sales). But see McCabe v. Atchison, T. & S. F. Ry., 235 U. S. 151, 35 S.Ct. 69, 59 L.Ed. 169 (1914) (statute permitting railway to discriminate); Collins v. Viceroy Hotel Corp., 338 F.Supp. 390 (N.D.Ill.1972) (innkeeper lien law); Klim v. Jones, 315 F.Supp. 109 (N.D.Cal. 1970) (innkeeper lien law).

      . One of the defendant banks, we are told, is a National Bank. Federal regulation is irrelevant to the issue of state action under § 1983. While federal officers may, at times, be subject to suit for unconstitutional behavior, see Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L. Ed.2d 619 (1971), there is no cause of action against private parties acting under col- or of federal law or custom.

      . See, e. g., Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153 (6th Cir. 1973); Ihrke v. Northern States Power Co., 459 F.2d 566 (8th Cir.), vacated as moot, 409 U.S. 815, 93 S.Ct. 66, 34 L.Ed.2d 72 (1972); Bronson v. Consolidated Edison Co., 350 F.Supp. 443 (S.D.N.Y.1972); Hattell v. Public Service Co., 350 F.Supp. 240 (D.Colo.1972); Stanford v. Gas Service Co., 346 F.Supp. 717 (D.Kan.1972). Contra, Jackson v. Metropolitan Edison Co., 483 F.2d 754 (3d Cir. 1973); Lucas v. Wisconsin Electric Power Co., 466 F.2d 638 (7th Cir. 1972), cert. denied, 409 U.S. 1114, 93 S.Ct. 928, 34 L.Ed.2d 696 (1973).

      . The holding in Lavoie, supra, was based upon Railway Employe’s Dept. v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112 (1956), which is inapplicable to the instant situation. In Sanson, the federal government placed monopoly power in private (union) hands in order to implement federal labor policies. Rhode Island, on the other hand, has given the banks no monopoly power. Moreover, the union shop agreement was legal only because the federal act had nullified state right-to-work laws.

      . 15 U.S.C. § 1631(a):
      “Each creditor shall disclose clearly and conspicuously, in accordance with the regulations of the Board, to each person to whom consumer credit is extended and upon whom a finance charge is or may be imposed, the information required under this part.”
      15 U.S.C. § 1637(a) :
      “Before opening any account under an open end consumer credit plan, the creditor shall disclose to the person to whom credit is to be extended each of the following items, to the extent applicable: . . .
      (7) The conditions under which the creditor may retain or acquire any security interest in any property to secure the payment of any credit extended under the plan, and a description of the interest or interests which may be so retained or acquired.”

      . See generally 1968 U.S.Code Cong. & Admin.News, p. 1962; 113 Cong.Ree. 18399 (1967); 114 Cong.Ree. 1831, 14375, 14486 (1968); Warren & Larmore, Truth in Lending: Problems of Coverage, 24 Stan.L.Rev. 793 (1972).

      . 12 C.F.R. § 226.2 (z) :
      “ ‘Security interest’ and ‘security’ means any interest in property which secures payment or performance of an obligation. The terms include, but are not limited to, security interests under the Uniform Commercial Code, real property mortgages, deeds of trust, and other consensual or confessed liens whether or not recorded, mechanic’s, materialmen’s, artisan’s, and other similar liens, vendor’s liens in both real and personal property, the interest of a seller in a contract for the sale of real property, any lien on property arising by operation of law, and any interest in a lease when used to secure payment or performance of an obligation.”

      . “‘Security interest’ means an interest in personal property or fixtures which secures payment or performance of an obligation.” Uniform Commercial Code § 1-201(37).

      . 8.2102, 93d Cong., 1st Sess. § 169 (1973) :
      “(a) A card issuer may not take any action to offset a cardholder’s indebtedness arising in connection with a consumer credit transaction under the relevant credit card plan against funds of the cardholder held on deposit, with the card issuer unless—
      “(1) such action was previously authorized in writing by the cardholder in accordance with a credit plan whereby the cardholder agrees periodically to pay debts incurred in his open end credit account by permitting the card issuer periodically to deduct all or a portion of such debt from the cardholder’s deposit account, and “(2) such action with respect to any outstanding disputed amount not be taken by the card issuer upon request of the cardholder.
      “In the case of any credit card account in existence on the effective date of this section, the previous written authorization referred to in clause (1) shall not be required until the date (after such effective date) when such account is renewed, . . .
      “(b) This section does not alter or affect the right under State law of a card issuer to attach or otherwise levy upon funds of a cardholder held on deposit with the card issuer if the remedy is constitutionally available to creditors generally.”


source: Caselaw Access Project

author: MATTHES, Senior Circuit Judge.

license: Public Domain

text:
    Donald Kilsmuth HESS and Louis Clifton Hess, Appellants, v. UNITED STATES of America, Appellee.
    No. 74-1022.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 16, 1974.
    Decided May 13, 1974.

      Thomas M. Larson, Asst. Federal Public Defender, Kansas City, Mo., for appellants.
    J. Whitfield Moody, Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before MATTHES, Senior Circuit Judge, and ROSS and WEBSTER, Circuit Judges.
   MATTHES, Senior Circuit Judge.

In December of 1956, Donald Kilsmuth Hess and Louis Clifton Hess, brothers, were convicted in the United States District Court for the Western District of Missouri of two separate kidnappings in violation of 18 U.S.C. § 1201. On December 14, 1956, each was sentenced by the trial judge, the Honorable Richard M. Duncan, to two consecutive life terms, as was a codefendant in one of the proceedings, Lewis Milton Williams. Thereafter, this court granted all three defendants leave to appeal in forma pauperis from their convictions. In accordance with the prevailing procedures, they were not provided with assistance of counsel. The convictions were affirmed. Hess v. United States, 254 F.2d 578 (8th Cir. 1958); Hess v. United States, 254 F.2d 585 (8th Cir. 1958).

In 1969, Williams filed a § 2255 motion seeking relief on the ground that he had not been represented by counsel on direct appeal from his conviction. Judge Duncan denied the motion, and Williams appealed, this time with the aid of a court appointed attorney. Our court agreed that Williams was constitutionally entitled to counsel on appeal from his conviction. The remedy fashioned was to treat Williams’ appeal from the trial court’s denial of his § 2255 motion as a direct appeal from his conviction. Again, Williams’ conviction was affirmed. Williams v. United States, 416 F.2d 1064 (8th Cir. 1969).

On September 13, 1973, the Hess brothers also filed a § 2255 motion, alleging, inter alia, the absence of counsel on appeal. On the basis of the Williams decision and without objection from the government, Judge Duncan certified the § 2255 proceeding to this court on December 21, 1973. A panel of judges of this court agreed that the Hess brothers should be given the same consideration given to Williams. Accordingly, it was directed that the § 2255 motion be considered as an application to reinstate the direct appeals of the Hess brothers, that such application be granted, and that counsel be appointed. It is in this posture that we now consider the case.

Appellants’ sole challenge is to the trial court’s sentencing procedure. Specifically, it is alleged that the trial court took into account the following allegedly impermissible factors in determining sentence: 1) that, instead of pleading guilty, appellants exercised their right to jury trial; 2) that Louis Hess testified falsely on his own behalf; and 3) unsupported misinformation supplied by the government. By the very nature of their attack, appellants do not seek reversal of their convictions or new trials, but only resentencing.

I.

This circuit has joined a host of other courts in recognizing that whether a defendant exercises his constitutional' right to trial by jury to determine his guilt or innocence must have no bearing on the sentence imposed. United States v. Marzette, 485 F.2d 207 (8th Cir. 1973). See United States v. Stockwell, 472 F.2d 1186 (9th Cir.), cert. denied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973); United States v. Hopkins, 150 U.S.App.D.C. 307, 464 F.2d 816, 822 (1972); Scott v. United States, 136 U. S.App.D.C. 377, 419 F.2d 264, 269-274 (1969); Baker v. United States, 412 F.2d 1069, 1073 (5th Cir. 1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970); United States v. Wiley, 278 F.2d 500, 504 (7th Cir. 1960). But cf. United States v. Thompson, 476 F.2d 1196, 1201 (7th Cir.), cert. denied, 414 U.S. 918, 94 S.Ct. 214, 38 L.Ed.2d 154 (1973); United States v. Jansen, 475 F.2d 312, 319 (7th Cir.), cert. denied, 414 U.S. 826, 94 S.Ct. 130, 38 L.Ed.2d 59 (1973); United States v. Leh man, 468 F.2d 93, 109-110 (7th Cir. 1972); Gollaher v. United States, 419 F.2d 520, 529-530 (9th Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 434, 24 L.Ed.2d 424 (1969).

Before imposing sentence in this case, the trial judge stated:

There is some suggestion that leniency ought to be shown to these young men because of their youth. It has been my experience in life that when we seek leniency, when we seek to be absolved of our sins, we must first admit our sins, and in this case there has been no admission of sins. There has been, on the contrary, a determination to pursue every remedy; and they have had that right, they had that right under the law. It would have made no difference if they had been caught red-handed in the commission of these acts, they would still have had the constitutional right, thank God, under our system to come into this court and say, “We have a jury pass on it.”
* * * * * *
These defendants have come into court and stand trial, although they have made no defense whatsoever. They have had no defense whatsoever, and they could make no defense. So they stand not only convicted by a jury before this Court, but under all of the facts in the cases it is so plain that they were guilty that there is no ground for doubt in the world about it.

Seizing upon the foregoing, appellants contend that Judge Duncan enhanced appellants’ sentences because they opted to stand trial rather than admit their guilt. If the seasoned trial judge has ever inflicted a heavier penalty upon a defendant because he chose to exercise his constitutional right to trial, our attention has not been directed to a record demonstrating such action. We would be hard pressed to conclude from Judge Duncan’s sentencing remarks, considered in entirety, that the above quoted statements support appellants’ argument. Nevertheless, since the tenor of the court’s observation is not entirely clear, and because the remedy is relatively painless, we believe the trial judge should be afforded an opportunity to fully examine his sentencing procedure and to consider the factors which motivated the sentences imposed.

II.

Louis Hess argues that his sentence was lengthened by the trial judge’s personal belief that Louis had lied during the trial.

Prior to sentencing, while discussing “the kind of individuals [appellants] are,” the trial judge said:

I just want to say one more thing about Louis Hess. The others pretty much speak for themselves; neither of them took the stand. Of course, that was their right not to do so and no advantage could be taken of it. Louis Hess took the stand. He is a fine looking man. He said he fell in the bathroom and got the cut on his head. It is probable that if the thing that caused the injury had been the width of a toothpick closer, he would not have been here to stand trial in this case but he would have been in his grave, it came that close to getting him. Bathroom falls do not cause that sort of injury. The Court wasn’t impressed with it at the time. The Court didn’t believe it at the time and, of course, the jury didn’t believe it.

The inference may be warranted that the judge was influenced by his belief that Louis Hess had committed perjury during the trial. But it is by no means clear that this is an impermissible factor in the sentencing process. At least four circuits have held that the sentencing judge may properly take into consideration a belief that the defendant testified falsely. United States v. Moore, 484 F.2d 1284, 1287 (4th Cir. 1973) (Craven, J., dissenting); United States v. Cluchette, 465 F.2d 749, 754 (9th Cir. 1972); United States v. Wallace, 418 F.2d 876, 878 (6th Cir. 1969); United States v. Levine, 372 F.2d 70, 74 (7th Cir.), cert. denied, 388 U.S. 916, 87 S.Ct. 2132, 18 L.Ed.2d 1359 (1967). Contra, Scott v. United States, supra, 419 F.2d at 268. See Note, The Influence of the Defendant’s Plea On Judicial Determination of Sentence, 66 Yale L.J. 204, 211-17 (1956).

The trial judge is constitutionally entitled to consider a wide variety of information bearing on the character and background of the defendant in fixing sentence. We are not prepared to say that the court’s bona fide belief that the defendant committed perjury during the trial cannot also be weighed in the balance. Nevertheless, we approve the cautionary language of Judge Butzner of the Fourth Circuit in United States v. Moore, supra, 484 F.2d at 1288: “Judges must constantly bear in mind that neither they nor jurors are infallible. A verdict of guilty means only that guilt has been proved beyond a reasonable doubt, not that the defendant has lied in maintaining his innocence.”

III.

Lastly, appellants urge that the district court was misinformed about their alleged prior criminal activity. They suggest that the record is presently unclear as to the exact source of information considered by the sentencing judge and, for that reason, the case should be remanded for a determination whether inaccurate and prejudicial information was considered.

Prior to the imposition of sentence, the prosecutor presented a lengthy oral statement detailing prior criminal activity of appellants and eodefendant Williams. At the outset of the statement, the prosecutor recommended “a substantial and rigorous penalty.” Although there may be important distinctions between a prosecutor’s report and a presentence report prepared by a probation officer, United States v. Rosner, 485 F.2d 1213, 1230 (2d Cir. 1973), petition for cert. filed, 42 U.S.L.W. 3407 (U.S. Jan. 7, 1974) (No. 73-1062); United States v. Solomon, 422 F.2d 1110, 1121 (7th Cir.), cert. denied, 399 U.S. 911, 90 S.Ct. 2201, 26 L.Ed.2d 565 (1970); 8A Moore’s Federal Practice fí 32.04 [3] (1973), for our present purposes, the prosecutor’s report in this 1956 proceeding may be compared to a presentence report.

Neither appellants nor their counsel questioned the accuracy or reliability of the prosecutor’s report. Nor did they ask to inspect the records upon which the report was based. Only now do they suggest the possible existence therein of “unsupported information.”

We do not doubt that a sentence based upon materially false information, which the defendant had no opportunity to correct, could not stand. Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948). To guard against such grievous error, Judge Lay suggested in United States v. Carden, 428 F.2d 1116, 1118 (8th Cir. 1970):

It is always advisable for the trial judge to at least state on the record the various factors he has taken into consideration in rendering his sentence. The court may advise counsel of these factors without necessarily disclosing the sources of the information to him. Such a procedure serves as a checkmate to the danger of misinformation being placed in the hands of the court. * * * If the defendant’s record, as publicly disclosed at the hearing, is incorrectly reported, defendant should have an opportunity to explain any discrepancy. If factual background is erroneous, defendant should have the opportunity to inform the court concerning the alleged misinformation.

See United States v. Mims, 440 F.2d 643 (8th Cir. 1971).

But in the present case appellants were advised by the prosecutor’s oral statement in open court of the substance of the record which had been placed before the trial judge, and no objection was raised. Indeed, no specific inaccuracy is alleged now. What appellants actually seek is full disclosure of the prosecutor’s sources of information. And while the issue of disclosure of presentence information to the defense continues to be a subject of robust debate, see e. g., United States v. Dockery, 145 U.S.App.D.C. 9, 447 F.2d 1178, cert. denied, 404 U.S. 950, 92 S.Ct. 299, 30 L.Ed.2d 266 (1971); 8A Moore’s Federal Practice fí 32.03 [4] (1973); ABA Project on Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures § 4.4(a), Commentary (Approved Draft 1968); Annot., Defendant’s Right to Disclosure of Presentence Report, 40 A.L.R.3d 681 (1971), this court has yet to require the trial judge, as a matter of due process, to disclose the report in its entirety to the defendant. United States v. Schrenzel, 462 F.2d 765, 775 (8th Cir.), cert. denied, 409 U.S. 984, 93 S.Ct. 325, 34 L.Ed.2d 248 (1972); Gallo v. United States, 461 F.2d 1008 (8th Cir. 1972); United States v. Mims, supra; United States v. MacLeod, 436 F.2d 947, ‘950 (8th Cir.), cert. denied, 402 U.S. 907, 91 S.Ct. 1378, 28 L.Ed.2d 647 (1971); United States v. Carden, supra. Nor will we declare the failure to disclose the sources of information of the prosecutor’s report in this case a violation of due process when appellants neither requested such disclosure nor objected to the accuracy of the substance of the report as it was revealed to them. Nevertheless, we hasten to add the caveat that, as a matter of policy, full disclosure under Rule 32, Fed.R. Crim.P., is to be preferred whenever possible.

IV.

The circumstances attending this case constrain us to offer several concluding observations.

First, the time element has some significance. The offenses were committed in November, 1956. The offenders were tried in December, 1956, and the sentences under attack were rendered on December 14. The convictions were affirmed in 1958. Although the Hess brothers and their confederate, Williams, were represented by counsel during the trial, they appealed pro se. Beyond doubt, the trial and appeal comported with then prevailing standards. Since 1958, however, decisions of momentous importance have emerged, affording additional safeguards to the accused and the convicted. See, e. g., Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967); Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). These cases have provided appellants an avenue for review of sentences imposed more than seventeen years ago.

Fortunately for all concerned, Judge Duncan, who presided at the trial and whose judicial conduct with regard to sentencing is challenged, is still rendering judicial service in the status of a senior judge. It is pertinent to make brief reference to his judicial career. Judge Duncan was appointed to the federal bench in 1943 and has served continuously since that year. He has frequently been assigned to districts in other circuits for service. The record he has forged attests to his ability, integrity, and dedication to the principle of rendering fair and equal justice for all litigants so far as it is possible for any individual subject to human frailties to perform that task.

Inasmuch as Judge Duncan certified appellants’ § 2255 motion to this court on the basis of Williams without clarifying whether he, in fact, considered appellants’ failure to plead guilty in imposing sentence, fairness dictates that these proceedings be remanded to the district court for the purpose of permitting Judge Duncan to determine whether the sentences were enhanced for that reason. Should the judge find upon an objective evaluation of all pertinent circumstances that the sentences were influenced by that improper consideration, then he shall set them aside and resentence. On the other hand, should the judge conclude that he. did not penalize appellants for their insistence on trial, he shall file an appropriate order so finding.

Remanded for proceedings in accordance with this opinion.

      . Appellants’ brief reveals that Louis Hess has been released on parole. At oral argument, we were informed that, in May, 1974, Donald Hess will become eligible for parole. Their release on parole, of course, does not render the case moot. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963).

      . The government argues that the fact that all three defendants were sentenced equally shows that Louis Hess was not individually penalized for committing perjury during the trial. It appears, however, that Louis’ prior criminal activity was less extensive than that of his codefendants.

      . We note that the proposed amendments to Rule 32, recently transmitted to Congress by Chief Justice Burger, would mandate, at the least, an oral or written summary of the factual information contained in the presentence report and relied upon by the trial judge in determining sentence. 15 Crim.L. Rptr. 3001 (April 24, 1974).


author: MERRILL, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Paul DUHART, Defendant-Appellant.
    No. 73-2570.
    United States Court of Appeals, Ninth Circuit.
    May 8, 1974.
    Rehearing Denied June 27, 1974.

      Richard B. Mazer (argued), .San Francisco, Cal., for defendant-appellant.
    J. S. Obenour, Asst. U. S. Atty. (argued), Tacoma, Wash., for plaintiffappellee.
    Before MERRILL and KOELSCH, Circuit Judges, and MURRAY, District Judge.

      Honorable William D. Murray, Senior United States District Judge for the District of Montana,- sitting by designation.

   MERRILL, Circuit Judge:

On November 30, 1972, appellant Du-hart, then an inmate of the United States Penitentiary at McNeil Island, Washington, forcibly seized and occupied the offices of the Classification and Parole Section of the prison administration. He did this by putting a knife to the throat of a woman who worked in the section and ordering all employees to leave, with the exception of his hostage and three other women. Appellant then ordered the four women to undress, striking two of them when they rebelled. He then forcibly had sexual intercourse with one. Seven hours after seizing the section he surrendered himself to prison authorities. In a two-count indictment he was charged with one count of rape and with one count of assault on the four women with intent to commit rape. Following jury trial he was adjudged guilty on both counts. He was sentenced to life imprisonment on the rape count, and to nineteen years, six months imprisonment on the assault count, the sentences to be served consecutively and both consecutive to the twenty-five year sentence for armed robbery he was then serving at McNeil Island. Seldom has a case been presented where the corpus delicti and the identity of the criminal were so indisputably established and where the proper course of justice was so apparent. The case should have presented no problems. Unhappily it presents many.

1. Appellant asserts error in denial by the district court of his motion for change of venue. He singles out one sentence in the district judge’s order from the bench as indicating that incorrect standards were applied by the court. In our judgment the order, together with the complete colloquy preceding it, indicates that the court had correct standards in mind. The showing made by appellant in support of his motion was far from compelling and we find no abuse of discretion.

2. In furnishing appellant a pretrial list of witnesses, the Government failed to list one of the doctors it ultimately called. 18 U.S.C. § 3432 requires the furnishing of such a list in “capital” cases. The section under which appellant was convicted of rape, 18 U.S.C. § 2031, provides for the death penalty. It is conceded that as there prescribed the penalty is unconstitutional under Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

When the doctor’s testimony was offered appellant objected, and the district court ruled that after Furman rape is no longer a “capital offense” and that the furnishing of a list is therefore no longer required. That ruling is assigned as error.

We need not reach the merits of the question. In this case it is clear (indeed, it was admitted at the time of the objection) that while the name of the witness was absent from the list of witnesses tendered, appellant had knowledge of the Government’s intention to call him and of the testimony the Government anticipated receiving from him. Hence no prejudice could possibly have resulted from any failure to comply formally with the statute.

3. When appellant had finally surrendered to prison authorities a prison doctor was summoned, who examined the woman who was raped. He took a vaginal “swab” or “smear.” He testified that he placed the specimens in preservative bottles and hand carried them to the laboratory of Tacoma General Hospital. At the hospital tests were performed on the specimens by the hospital pathologist.

Appellant objected to the testimony of the pathologist on the ground that the “chain of custody” of the specimens had not been sufficiently established. No one from the hospital had testified to receiving the specimens from the prison doctor. The prison doctor did not identify the bottles which the pathologist identified as those from which he had taken the samples tested.

Appellant relies on Novak v. District of Columbia, 82 U.S.App.D.C. 95, 160 F.2d 588 (1947). In that case a sample of urine had been obtained from a drunken driver by a policeman. He had placed it in a bottle marked with his name and delivered it to the health department laboratories for analysis. A chemist from the laboratories testified as to the results of the analysis. The opinion states:

“The police officer who secured the sample was present in court and testified to the manner in which he labeled the flask containing appellant’s urine and how he placed his initials on the label. The chemist, when he testified, had beside him the bottle of urine on which he had made an analysis. But no effort was made to hand to the police officer, who was present in court, the bottle the chemist had used to see if he could identify it as the bottle he had labeled and initialed. There is missing a necessary link in the chain of identification.”

160 F.2d at 589. The court of appeals reversed the conviction on this ground.

Here the missing link is supplied by the specimen bottle itself. Attached to it was a label with the prison doctor’s name and the name of the woman examined, and the further information “H/30,/72, vaginal smear.” The pathologist testified that it was the regular course of business at the laboratory to label all specimens received in this fashion. Under 28 U.S.C. § 1732(a), the Business Records as Evidence Act, this foundation eliminates the need for testimony of the person who received the specimens and made out the label and passed the specimens on for testing — the “missing link” in the chain of custody. Under Gallego v. United States, 276 F.2d 914 (9th Cir. 1960), and Pasadena Research Laboratories, Inc. v. United States, 169 F.2d 375, 380-382 (9th Cir.), cert. denied, 335 U.S. 853, 69 S.Ct. 83, 93 L.Ed. 401 (1948), the chain of custody was, with the aid of § 1732, sufficiently established.

4. The court instructed the jury respecting the assault count as follows:

“When an assault is done with the intent to commit rape, it would constitute a violation of the laws here alleged, whether or not the rape may be completed, and whether the assault be upon the person of the female intended to be raped, or upon the person of some other individual.”

We agree with appellant that to constitute the offense the assault must be upon the person intended to be raped and that the instruction was erroneous.

The United States contends that in any event the error was harmless. Its theory is that assault was committed by appellant on all four women with the intent from the outset of raping one, and that he did not choose the one to be raped until after the assault had been committed. Thus, it is contended, all four women were, at the time of assault, objects of appellant’s rape intent.

The record certainly accommodates such a construction of the events. It does not compel it, however, and appellant tells* a different story. According to him, he ordered the four women to disrobe not intending to rape them, but simply to make their escape more difficult. Though he denied any rape at trial, in light of the jury’s determination he argues on appeal in this connection that the rape was impulsive. Never, he asserts, did he intend to rape anyone but the one actually raped.

We cannot say that the record disputes this beyond reasonable doubt. Under the erroneous instruction the jury could have found the charged assault to have been committed upon the other women despite a lack of intent to rape them; and as to the woman aetully raped, what they could have found may have been a lesser included offense. The instruction, then, constitutes reversible error as to the assault count.

5. Appellant assigns as error in sentencing the district judge’s failure to call for and consider a presentence report, pursuant to Rule 32(e) of the Federal Rules of Criminal Procedure. The judge stated that he was relying instead on appellant’s prison report, which was made available to counsel.

The ordering of a presentence report is discretionary. Where the defendant at the time of commission of the crime is a prison inmate, the judge’s choice to rely on his prison report as a suitable alternative source of information does not in our judgment constitute abuse of discretion.

6. It is clear from statements made by the judge that he had familiarized himself with the contents of the prison report during the course of trial. Appellant contends that since the judge treated the prison report as a presentence report his having read it prior to the jury’s return of a guilty verdict was contrary to Rule 32(c) (1) of the Federal Rules of Criminal Procedure, and constitutes reversible error under Gregg v. United States, 394 U.S. 489, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969). We cannot agree.

Rule 32(c)(1) provides:

“The probation service of the court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless the court otherwise directs. The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or has. been found guilty.”

Respecting this rule, the Supreme Court in Gregg stated:

“Rule 32 is explicit. It asserts that the ‘report shall not be submitted to the court * * * unless the defendant has pleaded guilty or has been found guilty.’ This language clearly permits the preparation of a presentence report before guilty plea or conviction but it is equally clear that the report must not, under any circumstances, be ‘submitted to the court’ before the defendant pleads guilty or is convicted. Submission of the report to the court before that point constitutes error of the clearest kind.
Moreover, the rule must not be taken lightly. * * * To pérmit the ex parte introduction of this sort of material to the judge who will pronounce the defendant’s guilt or innocence or who will preside over a jury trial would seriously contravene the rule’s purpose of preventing possible prejudice from premature submission of the presentence report.”

394 U.S. at 491-492.

In our judgment the rule should not be made to apply to a prison report, even though the judge chooses to treat it as an informational substitute for a presentence report. Gregg simply requires literal compliance with Rule 32, a rule concerned with presentence reports only and designed with a view to their particular purposes. The rule does not purport or seem to be an effort to assure ignorance on the part of a judge in general. There are many decisions bearing on procedures to be followed in a particular trial that may require the judge to inform himself as to a defendant’s background, mental and emotional state, or tendencies toward violence. This would seem to be particularly true of a prison inmate. So long as information for any purpose comes from sources other than the presentence report the rule of Gregg and Rule 32 in our judgment have no application.

7. Appellant challenges the sentence rendered by the district judge. In opening brief on appeal it is asserted:

“[T]he record of the sentencing hearing clearly reflects that the trial judge’s emotional involvement with the case and his personal acrimony towards the appellant overcame his duty and even his ability to exercise judicial discretion in imposing sentence.”

The remarks of the judge to which appellant refers are set forth in the margin. We agree with appellant that they require resentencing.

The United' States opposes resentencing contending that a reading of the entire sentencing transcript shows that the judge was giving full and dispassionate consideration to all relevant factors and that the resulting sentence was not the result of an undisciplined and unjudicial surrender to hot blood.

It may be noted, however, thqj; surrender to the desire to speak one’s mind, as occurred here, suggests that the capacity for discriminating judgment in other respects may also have been lacking.

In any event the question of judicial qualification or disqualification is not dispositive of the question whether sentence may stand; nor is the question one of prejudice. This judicial act has been tainted by the manner of its performance. That the sentiments expressed would be widely shared, if not applauded, is no justification. A lecture of this sort in our view is an abuse of judicial authority. It has no place in the sentencing process.

Sentence on both counts is vacated.

Judgment of. conviction of assault with intent to commit rape on count I is reversed, and the matter is remanded for new trial.

Judgment of conviction of rape on count II is affirmed, and the matter is remanded for resentencing.

      . In Novak the only “label” on the sample improperly received was the name of the policeman who took it. No attempt was made to lay the foundation necessary to qualify under the Act. More importantly, since the label was made by the policeman, and not by the laboratory, even if it were a business record it could not stand in place of the crucial missing witness: the person who received the sample from the deliverer, on behalf of the laboratory.

      . “Now I suppose that with my knowledge of what goes on in the institution, and' I have a lot of knowledge about that because I have been over there many times, they have their own brand of justice, you know about that, they don’t have trials in the institution when they have a complaint against somebody, do they?
      THE DEFENDANT: No, sir.
      THE COURT: They take the law into their own hands, so to speak. I suppose that I could send you back over there and ask the warden just to keep hands off and let the inmates, and I am sure there are a lot of inmates over at the institution who are very unhappy over what you did here, aren’t they?
      THE DEFENDANT: Yes, sir, that’s right; yes.
      THE COURT: There are lots of them who are very unhappy over what you did here. But of course that isn’t my province to do that. There are other things that I have thought about, I could take the robe off, and I was a man before I was a judge, and you have heard the expression, every man has, they ought to cut something out, you know what I am talking about.
      THE DEFENDANT: Yes, sir, I understand, your Honor.
      THE COURT: But it is not my province to resort to something like that; or to lock the doors and call the husbands of these four women down here and put you and them in here. But that isn’t what I can do. There are all kinds of alternatives, but I have the unhappy position of wearing this robe, which incidentally I don’t wear to bed with me, so I have to impose a penalty.”


author: STEPHENSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Jo Ann KIRK, real name Jo Ann Thomas, Appellant.
    No. 73-1539.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 11, 1974.
    Decided May 20, 1974.

      James M. Martin, St. Louis, Mo., for appellant.
    Michael W. Reap, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before GIBSON, BRIGHT and STEPHENSON, Circuit Judges.
   STEPHENSON, Circuit Judge.

This is an appeal from a two-count indictment and jury conviction for the distribution of heroin. 21 U.S.C. § 841(a)(1). Appellant Jo Ann Kirk (Jo Ann Thomas) challenges several trial court rulings on evidentiary matters. We affirm.

The jury convicted appellant of distributing heroin on two occasions, June 26, 1972 (Count I) and on July 2, 1972 (Count II). Both sales were alleged to have taken place at Jo Ann’s Confectionary, a retail store owned and operated by Jo Ann Kirk in St. Louis, Missouri.

Special Agent Dennis Harker of the Drug Abuse Law Enforcement Bureau (D.A.L.E.) testified that on both occasions the same general pattern was followed. Informant Maurice Wilson was strip searched for drugs and/or currency; he was given pre-recorded currency with which to make the narcotics buy; informant Wilson and Agent Harker were dropped off near Jo Ann’s Confectionary; Harker and the other agent observed Wilson approach the store and make the purchase; Harker and Wilson returned to the auto where Wil-, son turned over substances which were later field tested and mailed to Chicago, Illinois, for chemical analysis and found to contain heroin.

Informant Wilson testified that he was a paid government informant and had been addicted to heroin for twenty years; he had felony and petty theft convictions. Wilson’s testimony at trial substantially corroborated that of the government agents. The evidence indicates that while Wilson could not recall dates he did recall two buys, one inside the store and one outside. Wilson contradicted the agents’ testimony as to whether the screen door of the confectionary was open or closed on the day of the inside buy. Wilson stated that it was closed.

Wilson admitted that he had lied at the hearing on motion for new trial when he testified that he did not purchase narcotics from Jo Ann Kirk but that he had the drugs hidden in his shoe. He further stated that he had lied in a previous sworn statement that he only remembered one drug buy from Jo Ann Kirk. The reason for the lies, according to Wilson, was that the lives of himself and his family had been threatened by defendant’s common-law husband, Eugene Kirk.

Jo Ann Kirk testified briefly in her own behalf. She relied on an alibi for her defense, i. e., that she was not in St. Louis on the dates of the alleged purchases. She offered character witnesses and numerous witnesses to bolster her alibi.

Appellant does not question the sufficiency of the evidence but attacks several trial court evidentiary rulings.

The primary argument raised on appeal concerns the trial court’s restriction of defense counsel on cross-examination of DALE agents Harker and Hillebrand.

Harker and Hillebrand were the pivotal prosecuting witnesses along with informant Wilson. Prior to trial, defense counsel was informed by the court that he would not be allowed to cross-examine these agents concerning their present status as government agents or their involvement in the so-called Collinsville raids. Agents Harker and Hillebrand were in fact involved in the narcotics raids at Collinsville, Illinois, in late April 1973 which resulted in their being placed on limited duty status as agents. At the time of trial in the instant case the agents were not allowed to take part in any field duties as DALE agents but were confined to office duty. Subse-quent to the trial of the instant ease, Harker and Hillebrand were indicted by the grand jury for their activity at Collinsville.

On cross-examination defense counsel hoped to impeach the credibility of Harker and Hillebrand. The trial court instructed counsel that until the agents had been convicted of a crime the inquiry into their status was prejudicial and would not be allowed. Appellant’s argument in substance is that he should have been allowed on cross-examination to inquire into the limited duty status of the agents to demonstrate before the jury that these agents should not enjoy the usual aura of authority of government agents.

The long-standing rule in this circuit has been that the credibility of a witness may not be impeached by showing that he has been accused of, charged with, or arrested for a crime which has not culminated in a conviction. United States v. Burch, 490 F.2d 1300 (CA 8 1974); United States v. Madden, 482 F.2d 850 (CA 8 1973); Rizzo v. United States, 304 F.2d 810 (CA 8 1962), cert. denied, 371 U.S. 890, 83 S.Ct. 188, 9 L.Ed.2d 123 (1962); Homan v. United States, 279 F.2d 767 (CA 8 1960), cert. denied, 364 U.S. 866, 81 S.Ct. 110, 5 L.Ed.2d 88 (1960); Packineau v. United States, 202 F.2d 681 (CA 8 1953); Echert v. United States, 188 F.2d 336 (CA 8 1951). We have said also that this rule does not automatically insulate a witness from inquiry into specific acts that may have led to an arrest, though there has been no conviction. Burch, supra at 1302; C. McCormick, McCormick On Evidence § 42 (2d Ed. 1972).

The element of control on these matters is left to the trial court. Burch, supra at 1303; United States v. Willis, 482 F.2d 1034 (CA 8 1973), cert. denied, 414 U.S. 1112, 94 S.Ct. 841, 38 L.Ed.2d 738 (1973); McCormick, supra § 185 at p. 440. The trial court is vested with considerable discretion. We will not overturn that discretion but for clear abuse, Burch, supra at 1303; Madden and Willis both supra.

Appellant argues, nevertheless, that because she presented a complete defense it was important for her to be allowed to impeach the only two credible witnesses for the government. She also cites United States v. Miles, 480 F.2d 1215 (CA 2 1973), for the proposition that the requested impeachment interrogation should have been allowed since Harker and Hillebrand “might have been motivated to testify in a manner that would ingratiate (themselves) with (their) superiors.” 480 F.2d 1215, 1217.

The alleged heroin purchase which took place inside Jo Ann’s Confectionary (Count I) was directly witnessed by only informant Wilson.' The jury returned a conviction on that purchase. As to the outside purchase (Count II), Officer Loehr testified that he observed the purchase through binoculars from approximately 100 yards down the street. His testimony was entirely consistent with that of Harker and informant Wilson. Officer Loehr is a St. Louis police officer who was attached to DALE at the time of these transactions. He has no connection with the Collins-ville operation. In short, the evidence against defendant even without the testimony of agents Harker and Hillebrand was more than adequate to support a conviction.

We are satisfied that the trial court did not abuse its discretion in refusing the proffered impeachment examination. Our cases have consistently warned that charges without more are not admissible impeachment evidence. The trial court was faced with a collateral matter of a highly prejudicial nature which could potentially have effect upon several pending trials. Under all the circumstances we cannot say that the court committed error.

The trial court also refused to allow defense counsel to impeach the credibility of Officer Loehr by asking him whether he had ever threatened Jo Ann Kirk and her family. This, too, was not an abuse of discretion since the matter is collateral in nature, allegedly having taken place some eight months after the surveillance. While it might have been admissible to show bias, as appellant argues, the admission was clearly discretionary. The court’s refusal in this instance did not prejudice defendant. Error, if any, was harmless beyond a reasonable doubt. United States v. Parker, 491 F.2d 517 (CA 8 1973); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

Appellant next argues that the trial court erred in allowing the government chemist, Terry Gasten, to testify regarding the identification of the substances as heroin, without the proper foundation to indicate whether the machines used were scientifically accepted and operating properly. Gasten’s testimony led to the admission of government exhibits 1-6; the heroin, its containers and the evidence envelopes.

Gasten was properly qualified as an expert before the jury. He testified that he had received training in the use of the specific machines used to test the substances in question and that he periodically tested the machines and had no doubt that they were working properly. Admissibility of evidence is for the trial court. Weight of evidence is for the jury. There was clearly enough evidence before the court to allow the admission of the exhibits about which the chemist, Gasten, testified.

Appellant’s next contention relates to the admission of government exhibits 7 through 10, which were two typed statements signed by informant Wilson and two receipts signed by Wilson as evidence of payment for services rendered to the government in purchasing drugs from defendant Kirk. One statement and one receipt relate to each of the two counts of the indictment. Appellant argues that these exhibits contained hearsay and contained a neat condensation of the government’s complete case. He cites Sanchez v. United States, 293 F.2d 260, 269 (CA 8 1961); and United States v. Parker, 491 F.2d 517 (CA 8 1973).

We find that these exhibits were cumulative and that no prejudice has been shown. United States v. Tompkins, 487 F.2d 146 (CA 8 1973); Parker, supra at 521, 523. The government witnesses were vigorously cross-examined concerning the same matters set forth in the exhibits. While Sanchez indicates that it may have been improper for these exhibits to go to the jury room, we are satisfied that in this case the jury fully understood the issues involved and that the government’s case rested largely on the credibility of agents Harker and Loehr and on Count I with the testimony of informant Wilson. We are fully convinced that if any error occurred in admitting these exhibits, such error was not prejudicial.

Kirk’s next appellate point relates to the government’s comment in closing argument that the defense had failed to place Eugene Kirk, appellant’s common-law husband, on the stand. When the comment was made the court admonished the jury that the defendant has no burden to produce any testimony. This is not a situation akin to prosecutorial comment on the defendant’s failure to testify. Compare Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); United States v. Gray, 464 F.2d 632, 637 (CA 8 1972). No prejudice is shown in this regard.

Finally we reach appellant’s argument that the court erred when it instructed the jury: “* * * Putting it another way, a reasonable doubt means a substantial doubt and not the mere possibility of innocence.”

The law of this circuit at the time this case was tried was that the equation of reasonable doubt to substantial doubt was not error. United States v. Culp, 472 F.2d 459 (CA 8 1973); cert. denied, 411 U.S. 970, 93 S.Ct. 2161, 36 L.Ed.2d 692. We have, since that time, disapproved the “substantial doubt” language. United States v. Atkins, 487 F.2d 257 (CA 8 1973).

The record shows that defendant made no specific objection to the “substantial doubt” language at trial although counsel indicates that he did make such objection out of the presence of the court reporter. The record indicates only a general objection and the tendering of an alternative definition of reasonable doubt. We have held that the “substantial doubt” language does not present plain error. Atkins, supra. Under the circumstances of this case, where the court has followed the approved law of the circuit and has been faced with an inadequate objection, we cannot say that error was committed.

We have reviewed the entire record and have given careful consideration to each of appellant’s claimed errors. While the errors claimed are many, we are satisfied that there has been no substantial injury to the rights of the accused.

Affirmed.

      . This is the second trial in this case. Appellant was originally tried and convicted on both counts on April 30 through May 1, 1973. Prior to sentencing Judge Regan sustained defendant’s motion for a new trial since newly discovered evidence had been obtained, i. e., informant Maurice Wilson who had not testified at the first trial was now available and willing to testify contrary to government agents’ testimony in some respects. Hence the case was retried bfore Judge Meredith on July 10 and 11, 1973. Upon jury conviction Kirk was sentenced by Judge Meredith to five years’ imprisonment on Count I and five years’ probation on Count II. The Court II sentence was to run consecutively to Count I. In addition Kirk received a three-year special parole on Count I.

      . On one occasion Agent Hillebrand drove for Wilson and Harker, on the other occasion Agent Loehr drove the car.

      . Only Harker and informant Wilson testified as to the physical transaction on the Count I buy which took place inside Jo Ann’s Confectionary (June 26, 1972).

      . Agent Harker testified (out of the presence of the jury) that limited duty status meant that while he was still an agent and retained his government status, he was not allowed to participate in any “criminal activity” pending the outcome of the grand jury investigation of the Collinsville situation.

      . The narcotics raids at Collinsville involved several government agents who entered private ■ homes by force in search of probable illicit drugs. The agents were ultimately tried and acquitted on several misdemeanor charges. 18 U.S.C. §§ 242 and 2236. Thereafter the felony charges against all agents were dismissed with prejudice.

      . Both parties have referred on occasion to Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). It is important not to confuse the rule discussed in the instant case — that a witness may not be asked about arrests or charges to affect Ms credibility — with the rule primarily discussed in Michelson — that a character witness may be cross-examined as to his knowledge of an arrest (of the person whose character he is testifying about) whether or not it resulted in a conviction. Compare Michelson, supra at 482-483 and Mullins v. United States, 487 F.2d 581 (CA8 1973).

      . Harker witnessed the inside purchase from across the street. He testified that he could see hand motions but he could not say that he actually saw any object passed.

      . In this regard appellant argues that the two counts should have been severed since the jury confused and cumulated the evidence. The court instructed the jury that they were to consider the charges separately. The case was clearly a proper one for joinder of counts. United States v. Simon, 453 F.2d 111, 113 (CA8 1971).

      . The arrest of Jo Ann Kirk took place some eight months after the surveilling activities testified to by the agents. The trial court was clearly correct in refusing to allow the requested additional cross-examination of Officer Loehr concerning the search of Jo Ann’s Confectionary. That matter was clearly irrelevant to the issues of guilt and would have tended only to confuse the trial.

      . In this same vein, appellant argues that the chain of custody has not been established because the informant Wilson did not identify the items as those allegedly given to him by defendant Kirk. Such a showing was not necessary. The record clearly demonstrates that the physical exhibits being offered were in substantially the same condition as when the crimes were committed. United States v. Harris, 488 F.2d 867, at 868 (CA8 1973); United States v. Brown, 482 F.2d 1226, 1228 (CA8 1973). Moreover, chain of custody was not raised on cross-examination at trial.


author: MULLIGAN, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Ramon RIVERA, Defendant-Appellant.
    No. 1024, Docket 74-1079.
    United States Court of Appeals, Second Circuit.
    Argued May 3, 1974.
    Decided May 17, 1974.
    Michael Q. Carey, Asst. U.S. Atty. (Paul J. Curran, U.S. Atty., for the Southern District of New York, John D. Gordan, III, Asst. U.S. Atty., of counsel), for appellee.
    Louis R. Aidala, New York City (Henry J. Boitel, New York City, of counsel), for defendant-appellant.
    Before WATERMAN, FRIENDLY and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

This is an appeal from a judgment of conviction entered on January 4, 1974, in the United States District Court for the Southern District of New York after a five-day jury trial before Hon. Marvin E. Frankel, United States District Judge. The indictment charged in two counts that the appellant Rivera and two others distributed, and possessed with intent to distribute, one-eighth kilogram of cocaine and also that they had conspired so to do. 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A) & 846; 18 U. S.C. § 2. Rivera’s two co-defendants, out of the presence of the jury, withdrew their pleas of not guilty and pleaded guilty to both the substantive and conspiracy counts. The jury found Rivera guilty of both counts and he was sentenced by Judge Frankel to concurrent terms of two years imprisonment, to be followed by three years special parole. The co-defendants who had pleaded guilty were sentenced to concurrent terms of five years imprisonment, to be followed by three years special parole.

There is no point in here recording the facts which reveal the usual dreary and sordid “drug bust.” Rivera presented no defense at all and his guilt was amply established after a jury trial conducted by an impartial and experienced trial judge. Rivera’s arguments on appeal are unconvincing, but one deserves comment.

After his arrest, Rivera was interviewed by an Assistant United States Attorney and gave a false exculpatory version of the events. This included a somewhat novel explanation for his presence at the scene of arrest: he was waiting for a bus. The Assistant who had interviewed Rivera was called as a Government witness. At the end of his testimony the following questions were asked by the prosecutor:

Q. Did you make any inquiries about his possible previous criminal record ? A. I did.
Q. Did you ask him whether or not he had any convictions ?
Mr. Aidala: Objection, your Hon- or.
The Court: Sustained.
. Mr. Aidala: I move for a mistrial at this time.
The Court: That is denied. We are not interested in that subject at all. There is no information before the jury about that.

There is no question that a reversal would be appropriate here if this line of questioning had revealed to the jury that Rivera did have a criminal record unrelated to the crime charged. The cautionary instruction of the trial court would not have cured the error. United States v. Rinaldi, 301 F.2d 576, 578 (2d Cir. 1962).

On appeal, Rivera claims that the questioning by the prosecutor was prejudicial and deprived him of a fair trial even though the question was unanswered and the jury never did receive any evidence that Rivera had committed any particular crime or indeed had a criminal record. We agree that the mere fact that the question was not answered does not end the inquiry. If the question was sufficiently insinuating and the curative instruction was not unequivocal, reversal might still be in order.

This court has faced such a situation in United States v. Semensohn, 421 F.2d 1206, 1208-1209 (2d Cir. 1970). There, on cross-examination, the prosecutor asked the defendant: “Now, you were convicted of grand larceny, weren’t you?” The defense objected to the question before it was answered, and in a bench conference it emerged that the defendant had never even been charged with grand larceny although he had pleaded guilty to the misdemeanor of attempted grand larceny in the third degree for which he had not yet been sentenced. The trial judge thereupon did instruct the jury to disregard the question but also commented: “It is a rule of law that you can’t show guilt of one charge by guilt or innocence of a different charge . . . . ” In reversing, Judge Waterman, writing for the court, noted the insinuation created by the question, as well as the equivocal admonition of the trial bench: “The jury might well have inferred from the judge’s remarks that the accused had, indeed, been convicted of grand larceny and, but for a legal technicality, the jury was not to consider that fact in weighing the accused’s guilt or innocence of Selective Service violation.” Id. at 1209.

We find the Semensohn case distinguishable since the question here was not phrased so suggestively and the currative charge was not ambiguous. While it is true that one might conclude that any question about prior convictions would not be asked by a prosecutor unless an incriminating answer could be anticipated, we believe that such possibility of prejudice was dispelled by the curative instruction of the trial judge. See United States v. Pfingst, 477 F.2d 177, 188 (2d Cir.), cert denied, 412 U.S. 941, 93 S.Ct. 2779, 37 L.Ed.2d 400 (1973). Moreover, in determining whether or not the prejudice, if any, was minimal, we are to look to the strength of the Government’s case. United States v. Semensohn, supra, 421 F.2d at 1209; see United States v. Pfingst, supra, 477 F.2d at 188. Here, we are persuaded that the United States amply established Rivera’s guilt in a five-day trial, conducted by a fair and impartial jurist, and that the prosecutor’s question in no way contributed to his conviction.

What is bothersome here is the fact that the question was ever asked. The Government concedes on appeal that the question was improper. The Assistant United States Attorney who conducted the trial was in fact trying his first ease. There is no indication of malevolence or perhaps even of overzealousness. He has explained that Rivera actually denied that he had a criminal record, which was not the fact, and that the line of questioning was ultimately designed to attack his credibility. Since Rivera, had not taken and did not take the stand, his credibility was not in issue. See generally C. McCormick, Law of Evidence § 190 (2d ed. E. Cleary 1972); 1 J. Wigmore, Evidence § 57 (3d ed. 1940).

Since the principles of the law of evidence here involved are hardly esoteric, but rather rudimentary, we do not think it unreasonable that the United States Attorney’s office take appropriate steps to insure that inexperienced trial counsel become familiar with them. The defendant is entitled to be tried for the crime charged in the indictment and not for his past misconduct. While here we are satisfied that there was no taint, the area is indeed delicate and sensitive, and an otherwise unassailable verdict should not be jeopardized by clearly improper questions, which, had they not been interrupted and cured, would have inevitably led to reversal and a new trial.

Affirmed.


author: VAN OOSTERHOUT, Senior Circuit Judge.

text:
    WAGNER ELECTRIC CORPORATION, Appellant-Appellee, v. LOCAL 1104, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, Appellee-Appellant.
    Nos. 73-1440, 73-1470.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 15, 1974.
    Decided May 17, 1974.

      Daniel J. Sullivan, St. Louis, Mo., for Wagner Electric Corp.
    S. Sheldon Weinhaus, St. Louis, Mo., for Local 1104.
    Before VAN OOSTERHOUT and MATTHES, Senior Circuit Judges, and LAY, Circuit Judge.
   VAN OOSTERHOUT, Senior Circuit Judge.

This is an action under § 301 of the Labor Management Relations Act, 29 U. S.C. § 185, for injunctive relief and damages resulting from a work stoppage alleged to be in violation of a no-strike provision in a collective bargaining agreement between the parties. The trial court, Judge Regan presiding, issued a temporary restraining order, after which the employees of the plaintiff returned to work. Trial was later held on the issues of liability, damages and the issuance of a permanent injunction. The evidence was extensive and conflicting. In an opinion reported at 361 F. Supp. 647 (E.D.Mo.1973), Judge Regan held that the defendant union was liable for breaching the no-strike provision of the contract, found that the plaintiff had suffered damages in the amount of $70,000, but denied the issuance of a permanent injunction. Judgment was entered accordingly. The union appeals from the finding of liability and the damage award for the plaintiff; the company cross-appeals from the damage award. The opinion and judgment are affirmed in all respects.

The facts which support the finding made and the judgment based thereon are fairly set out in detail in Judge Regan’s well-considered opinion and will not be repeated here.

LIABILITY.

The union claims that the finding of its liability for the strike was erroneous. It contends that the walkout was a wildcat strike which was neither called nor supported by the union as such, but was the result of spontaneous action by the individual members. The union points to such evidence as the facts that no formal strike vote was ever taken at the union meetings preceding the walkout, and that the union issued a press release on August 10, 1971, disavowing any responsibility or support for the strike and directing its members to’ return to work.

However, neither of these facts compel a finding that the union was not responsible for the strike. The absence of a formal strike vote is not decisive on the question of a union’s involvement in a strike action. International Bhd. of Electrical Workers (Roane-Anderson Co.), 82 NLRB 696, 711 (1949). See 29 U.S.C. § 185(e). However, it is well established that a union, is responsible for the mass action of its rank and file members as long as it is a functioning entity. Vulcan Materials Co. v. United Steelworkers, 430 F.2d 446, 455 (5th Cir. 1970), cert. denied, 401 U.S. 963, 91 S.Ct. 974, 28 L.Ed.2d 247 (1971); United States v. United Mine Workers, 77 F.Supp. 563, 566 (D. D.C.1948), aff’d, 85 U.S.App.D.C. 149, 177 F.2d 29, cert. denied, 338 U.S. 871, 94 L.Ed. 535 (1949); Adley Express Co. v. Highway Truck Drivers Local 107, 349 F.Supp. 436, 443 (1972), reaff’d, 365 F.Supp. 769, 777 (E.D.Pa.1973). A union is responsible for the actions of its officers and members according to the ordinary doctrines of agency. United Mine Workers v. Gibbs, 383 U.S. 715, 736, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Mason-Rust v. Laborers’ Int’l Union Local 42, 435 F.2d 939, 943 (8th Cir. 1970); United Steel Workers v. CCI Corp., 395 F.2d 529, 532 (10th Cir. 1968), cert. denied, 393 U.S. 1019, 89 S. Ct. 627, 21 L.Ed.2d 564 (1969). See International Ladies’ Garment Workers Union v. NLRB, 99 U.S.App.D.C. 64, 237 F.2d 545, 551 (1956).

Neither does the issuance of an exculpatory press release absolve a union of liability for the violation of a no-strike provision. A union is required to use its best efforts to return striking workers to their jobs if it is not to be held responsible for their actions. Vulcan Materials, supra, 430 F.2d at 457; United States v. United Mine Workers, supra, 177 F.2d at 39; Eazor Express, Inc. v. Teamsters Local 249, 357 F.Supp. 158, 163-165 (W.D.Pa.1973); Adley Express, supra, 349 F.Supp. at 444.

From the evidence presented at trial, Judge Regan found that the union was responsible for the strike because of the circumstances surrounding the union meetings, the involvement of union officers and stewards in initiating the strike, the participation of every one of the 2700 union members in the strike, and the minimal efforts of the union hierarchy in attempting to end the walkout. He found that the exculpatory press release was belated and not sufficient to absolve the union of liability under the circumstances. The trial judge has the opportunity to judge the credibility of the witnesses and weigh the evidence, and his findings may not be set aside unless they are clearly erroneous. Fed.R.Civ.P. 52(a); Mason-Rust, supra, 435 F.2d at 943.

The court’s liability determination is supported by substantial evidence and is not induced by any erroneous view of the law.

DAMAGES.

Defendant claims the damages allowed are not supported by substantial evidence and that they are excessive. Plaintiff on cross appeal urges that the damages allowed are inadequate.

The fact of damages arising out of the breach of the no-strike agreement in the company’s contract with the union is clearly established. Plaintiff’s business is a substantial one employing some 2700 union members. By reason of the strike no labor was available to produce inventory and carry on the company’s business on August 10 and only a limited number of union employees reported for work on August 11. The trial court properly held plaintiff was entitled to prove continuing overhead costs not offset by production with respect to August 10 and part of August 11. United Electrical Workers v. Oliver Corp., 205 F.2d 376, 387 (8th Cir. 1953). See generally Annotation, 92 A.L.R.2d 1232 (1963). The trial court recognized that in a situation such as here presented, it is impossible to determine damages with mathematical precision. Where, as here, the fact of damage has been established, the court may approximate damages on the basis of just and reasonable inferences from the evidence. Story Parchment Co. v. Paterson Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 75 L.Ed. 544 (1931); Mason-Rust, supra, 435 F.2d at 946.

The trial court in its opinion states that plaintiff through testimony of its accountant witnesses offered proof of damages aggregating $174,489. Defendant through its witnesses offered testimony to the effect that the damages were only nominal. Defendant also contended that many items of expense claimed were not properly allocable to overhead expense. We have carefully examined the record and are satisfied that neither the defendant-appellant nor the plaintiff-cross appellant has established that the court’s determination of damages is clearly erroneous.

Three-fourths of the costs shall be taxed to the defendant-appellant and one-fourth of the costs shall be taxed to the plaintiff-cross appellant.

The judgment appealed from is affirmed both on defendant’s appeal and on plaintiff’s cross appeal.

      . Judge Regan found that the temporary restraining order had served its purpose of returning the men to work, that it was unlikely that another strike would occur, and that there was thus no need for a permanent injunction. 361 F.Supp. at 651. Neither party appeals from that determination.