author: RIVES, Circuit Judge:

text:
    James D. HODGSON, Secretary of Labor, U. S. Department of Labor, Plaintiff-Appellee, v. The BEHRENS DRUG COMPANY, Defendant-Appellant.
    No. 72-1680.
    United States Court of Appeals, Fifth Circuit.
    Feb. 12, 1973.
    As Amended March 7, 1973.

      Tracy Crawford, Tyler, Tex., Wilford W. Ñaman, Waco, Tex., for defendant-appellant.
    Richard F. Schubert, Sol. of Labor, U. S. Dept, of Labor, Washington, D. C., M. J. Parmenter, Regional Sol., U. S. Dept, of Labor, Truett E. Bean, U. S. Dept, of Labor, Dallas, Tex., Carin Ann Clauss, Donald S. Shire, Anastasia T. Dunau, U. S. Dept, of Labor, Washington, D. C., for plaintiff-appellee.
    Before RIVES, THORNBERRY and GOLDBERG, Circuit Judges.
   RIVES, Circuit Judge:

In this case brought by the Secretary of Labor under the Fair Labor Standards Act, the district court found that Behrens Drug Company (hereinafter Behrens) discriminated against certain female employees by compensating them at a lower rate than their male counterparts. Behrens appeals, arguing that each contested male-female wage differential rests on legitimate grounds — that the males involved are either participating in a bona fide training program or performing unequal work.

The Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1), an amendment to the Fair Labor Standards Act of 1938, prohibits sex-based wage discrimination between employees performing equal work under similar conditions. The Secretary of Labor, commissioned champion of the female worker by the Act, brought this action on behalf of several female employees in Behrens’ Tyler, Texas, warehouse.

The district court, after finding that Behrens breached the Equal Pay Act, entered judgment enjoining Behrens from further violations of the Act’s equal pay requirements and restraining the continued withholding of $17,423.99 in back wages found due as a result of Behrens’ violations. The district court ruled that Behrens paid four separate categories of female workers a diseriminatorily low wage. Behrens appeals the ruling as to each category.

I. ORDER CLERKS

For many years Behrens has employed females in its Tyler division warehouse as “order clerks.” The principal responsibilities of an “order clerk” include: arranging merchandise on the warehouse shelves, filling customer orders by gathering the requested stock and sending it along to the “checker,” and restocking the shelves. [App. 211.] Behrens admitted and the district court found that certain male employees, designated “sales trainees,” performed work substantially equal to that of the female “order clerks” during the period in question. [App. 211.]

Behrens acknowledged that the male “sales trainees” were paid a higher wage than “order clerks” for doing the same work, but sought to justify this wage discrepancy as based on a bona fide training program, purportedly constituting a legitimate distinguishing factor other than sex.

29 U.S.C. § 206(d)(1) recognizes four exceptions to the general prohibition of disparate wage payments between workers of the opposite sex. The first three exceptions to the Equal Pay Act are specific (a seniority system, a merit system, and a system which measures earnings by quantity or quality of production), but the last is stated in general terms— “any other factor other than sex,” 29 U.S.C. § 206(d) (l)(iv). 29 C.F.R. § 800.148, the Secretary’s Interpretative Bulletin, expressly designates bona fide training programs as one factor other than sex which may validly produce a male-female wage gap. Behrens contends that its male “sales trainees” are all participants in a bona fide training program, providing a legitimate basis for their higher wage rate than that of female “order clerks.”

In order to verify the structure of its training program, Behrens offered the testimony of its president, treasurer, Tyler division manager, and four salesmen.

Behrens’ president, W. Lacy Clifton, admitted that his company’s sales training program has never included a woman. [App. 553.] He sought to explain the program’s male dominance by reference to its origin:

“I would say that when this program was started [1946] that females were never considered as suitable for traveling. . . .You think about putting a female out on a job where she might have a flat tire at night.” [App. 546.]

In recent years, Clifton claimed, inclusion of females in the sales training program has been considered, and one woman, Annette Neeley, was offered a sales job on a temporary basis. Miss Neeley turned the job down for reasons which are contested. However, Clifton admitted that present company policy calls for active solicitation of young men as sales trainees, but not women, and Miss Neeley, while she was offered a sales job, was not offered a position as a sales trainee. [App. 554.]

The district court found and both parties, with minor exceptions, agree that the Behrens’ sales training program has the following characteristics:

1) No written or formal plan of training;
2) a regular system of rotation through each of the different warehouse jobs with progression to the next position based on satisfactory familiarity with the position before it;
3) no specific identifiable point of termination;
4) sales trainees are informed upon hiring that they are entering a training program;
5) some formal sales training, including meetings, study of sales literature and travel with current salesmen, is provided upon reaching the final job in rotation — the city order desk. [Although the district court made no express finding on this point, testimony to that effect appears at App. pp. 580-582.]

In addition, uncontradicted testimony established that a male trainee carries out productive work and rotates through the training program without regard to personnel 'needs, except that the final advance to the position of salesman is contingent upon an opening in that slot. [App. 561, 562.]

In the seminal case interpreting the bona fide training program exception to the Equal Pay Act, Shultz v. First Victoria National Bank, 5 Cir. 1969, 420 F.2d 648, this Court ruled that two separate male-dominated “executive training programs” for bank tellers did not constitute a factor other than sex which would permit payment of lower wages to female tellers not included in the training programs. Those particular programs were found to be merely “post-event justifications for disparate pay to men and women from the commencement of employment up through advancement.” Shultz, supra, at 655.

The elements of the two bank training programs in Shultz, which that court listed as conclusive of their fatal imprecision, were:

1) Employees were not hired with the knowledge that they were trainees.
2) The plans were not in writing.
3) The “rotation” of trainees through the various bank positions did not follow any definite sequence, but depended on personnel needs.
4) No formal instruction was offered at either bank.
5) Neither program had ever included a woman.
6) Advancement to the next position was unpredictable and sporadic.

Faced with these amorphous bank training plans and strongly influenced by the fact that both programs excluded females, the Shultz court reasoned that judicial recognition of such prografns would allow “the exception will swallow the rule” and effectively undermine the congressional purpose for passing the Equal Pay Act.

A cursory comparison of the training programs belatedly offered as justification for the unequal pay in Shultz with the program at issue here reveals that the latter is far more concrete than were the former. The Behrens training plan is not a post-event justification. Behrens’ sales trainees enter employment with explicit knowledge of their training status. They rotate through the initial warehouse positions without regard to personnel needs, and they receive some formal sales training while serving as city order clerks.

Yet, because of the crucial weaknesses in the Behrens training program, which will be treated subsequently, coupled with the genuine concern for women’s rights which prompted the Act, we feel that the principles enunciated in Shultz are applicable here.

The Behrens sales training program suffers from two principal weaknesses. First, the Behrens trainee’s ultimate advancement to the position of salesman depends on, not only satisfactory completion of the training program, but also the fortuitous event of a sales opening. In other words, the termination point of the program is not determinable prior to its actual occurrence, and that termination point is subject to the vagaries of the business climate and the company’s personnel needs.

Second, the Behrens program is male dominated. No woman has ever participated in the program. While it is true that the issue of whether trainee positions should be open to women is a question to be ultimately resolved only in an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1970), in the manner pursued in Diaz v. Pan American World Airways, Inc., 5 Cir. 1972, 442 F.2d 385; see Hodgson v. Golden Isles Convalescent Homes, 5 Cir. 1972, 468 F.2d 1256, it is also true that “training programs which appear to be available only to employees of one sex will * * * be carefully examined to determine whether such programs are, in fact, bona fide.” 29 C.F.R. § 800.148.

Male-dominated training programs subject to the close scrutiny required by § 800.148 have failed to pass appellate tests with increasing frequency. See Hodgson v. Security National Bank of Sioux City, 8 Cir. 1972, 460 F.2d 57, reversing a district court decision ruling that a male-dominated bank management training program was bona fide. See also Hodgson v. Fairmont Supply Co., 4 Cir. 1972, 454 F.2d 490, where the Fourth Circuit (reversing the district court) found a violation of the Equal Pay Act, and declined to recognize a sex-oriented sales training program.

The spirit behind the Equal Pay Act was eloquently depicted in Shultz v. Wheaton Glass Co., 3 Cir. 1970, 421 F.2d 259, 265:

“The Act was intended as a broad charter of women’s rights in the economic field. It sought to overcome the age-old belief in women's inferiority and to eliminate the depressing effects on living standards of reduced wages for female workers and the economic and social consequences which flow from it.”

In light of this enunciation of the clear purpose of the Equal Pay Act, a training program coterminus with a stereotyped province called “man’s work” cannot qualify as a factor other than sex. Hodgson v. Fairmont Supply Co., supra, 454 F.2d at 498.

In the instant case, Behrens’ president, Clifton, testified that women are not solicited as sales trainees because “females were never considered as suitable for traveling.” This is a clear example of the attitude of male suitability designed to be nullified by the Equal Pay Act.

Behrens’ sales training procedure is not illusory, nor does it constitute a mere post-event justification for disparate wage payments. Nevertheless, the program has never included a female, and its completion — advancement to a sales job — is entirely dependent on personnel needs. These two program characteristics compel the conclusion that Behrens’ training procedure is not a factor other than sex which should excuse denial of equal pay to female workers and remove them from the aegis of the Equal Pay Act.

“An exemption from the coverage of the Act ‘must be narrowly construed.’ Phillips, Inc. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 808, 89 L.Ed. 1095 (1945) and Mitchell v. Stinson, 1 Cir., 1954, 217 F.2d 210, 214. The exemptions must be applied only to those ‘plainly and unmistakably within its terms and spirit.’ Philips, Inc. v. Walling, supra, 324 U.S. at 493, 65 S.Ct. 807. See also Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 456, 4 L.Ed.2d 393 (1960).”

Hodgson v. Colonnades, Inc., 5 Cir. 1973, 472 F.2d 42.

Until they reach the position of city desk clerk, Behrens’ sales trainees participate in no training activities independent of their regular, productive jobs. This fact reinforces the conclusion that male trainees through most of the training period engage in exactly the same activities as female nontrainees and do not warrant statutory exemption from the Equal Pay Act.

Behrens advances two subsidiary arguments in support of its training program. First, it contends that the term “bona fide training program” contained in 29 C.F.R. § 800.148 means simply “in good faith without fraud.” Although the traditional, common law definition of “bona fide” may be as liberal as Behrens’ claims, see Ware v. Hylton, 3 U.S. (3 Dall.) 199, 1 L.Ed. 568, the term as used in the regulation at issue here must be construed in light of the statute which that regulation implements. The Equal Pay Act clearly mandates the demise of sex-based wage differences except in special, narrow circumstances A bona fide training program to constitute a valid exception to the Equal Pay Act must represent more than an honest effort; such a program must have substance and significance independent of the trainee’s regular job.

Behrens also argues that to rule its “training program” invalid would discriminate against small companies, like itself, who cannot maintain-expensive, formal training courses. Certainly, a small corporation with limited resources need not implement as elaborate a training program as those of the corporate giants. But the fact that a corporation is small does not relieve that corporation of its duty to establish a “bona fide training program,” if it wishes to escape -the mandate of the Equal Pay Act. In addition, all “training programs” which exclude females, whether originated by large companies or small, carry a stigma of suspect validity.

II. CITY ORDER DESK EMPLOYEES

Employees assigned to work at the city order desk in Behrens’ Tyler warehouse take orders by telephone from local customers and fill out the necessary order blanks. The district court found that during the period in question three females and four males worked as city order desk employees in the Tyler division. Those employees were found to have engaged in equal work, but female employees were paid at substantially lower rates. [App. 214.]

Behrens concedes that male and female city desk clerks perform equal work for which the females receive lower pay, but contends that its “sales training program” removes that difference from the interdiction of the Equal Pay Act. For the reasons already stated, we disagree.

III. DATA PROCESSING DEPARTMENT SUPERVISORS

A. Equal Work

From January 1, 1964 until June 1, 1966, Behrens employed David K. Blavier, a male, as supervisor of its data processing department in the Tyler division. On termination of Blavier’s employment in June 1966, Delores Wooley, a female, took charge of the data processing department. The district court found that David Blavier was paid a salary of $435.00 per month, the equivalent of $2.06 per hour, at the time of his resignation. [App. p. 217.] Delores Wooley, on the other hand, was started in the supervisor job at $1.55 an hour, and her employment has continued at rates substantially less than those paid Mr. Blavier at the time’ of his resignation.

Behrens argued at trial that the disparate wage payment between Blavier and Wooley was justified by extra work which Blavier performed while employed as supervisor. The district court rejected Behrens’ argument and ruled that,

“These male and female employees [Blavier and Wooley] during their respective periods of employment were employed to perform equal work on jobs, the performance of which required equal skill, effort and responsibility, and they worked under similar working conditions although their employment was not concurrent. 29 U.S.C. § 206(d). Shultz v. First National Bank of Orange, 61 L.C. 32,269; Wirtz v. Koller Craft Plastic Products, Inc., 58 L.C. 32,076 [296 F.Supp. 1195], Department of Labor Regulation, Code of Federal Regulations, Title 29, Part 800, Section 800.114(b) & (e).”

[App. 223.]

Although the Secretary has the burden of proving that the work is equal, Congress in prescribing “equal” work intended to codify a remedial measure which requires not that jobs be identical, but only that they must be substantially equal. Shultz v. Wheaton Glass Co., supra, 421 F.2d 259, 265, cert. denied 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64; Hodgson v. Brookhaven General Hospital, 5 Cir. 1970, 436 F.2d 719, 725. And the Equal Pay Act applies to jobs held in immediate succession, as well as simultaneously.

29 U.S.C. § 206(d)(1) requires equal pay for “equal work on jobs the performance of which requires equal skill, effort and responsibility and which are performed under similar working conditions.” In Hodgson v. Brookhaven General Hospital, supra, this Court surveyed the expanding number of cases wrestling with the critical criterion of “equal effort,” and described the emerging doctrine as holding that,

“jobs do not entail equal effort, even though they entail most of the same routine duties, if the more highly paid job involves additional tasks which (1) require extra effort, (2) consume a significant amount of the time of all those whose pay differentials are to be justified in terms of them, and (3) are of an economic value commensurate with the pay differential.”

436 F.2d at 725. Thus, employers may not be permitted to frustrate the purposes of the Act by calling for extra duty from male employees only occasionally, or by requiring male employees to perform tasks normally done by full-time personnel at a lower rate of pay.

The district court found that the primary responsibilities of the data processing room supervisor included: managing the activities of department employees, adjusting malfunctioning data processing machines, and assuming responsibility for departmental errors and priorities. [App. 217.] Both Blavier and Mrs. Wooley performed these functions.

Blavier testified in the district court that while serving as data processing room supervisor he performed several extra duties in addition to management of the data processing department. He worked several hours on Saturday mornings taking orders and delivering merchandise to customers. [App. 648, 669-671.] He occasionally took telephone orders at the city order desk [App. 648], and he drove a delivery truck, infrequently, when specially requested [App. 664]. In addition, he participated in Sunday sales shows two or three times a year [App. 670].

Behrens contends that Blavier’s extra duties, not performed by Mrs. Wooley, entail sufficient extra effort on the part of Blavier to justify his higher wage rate. We disagree. Blavier admitted that his primary and principal responsibility was working in the data processing room. [App. 664.]. The extra duties performed by Blavier do not satisfy the three-pronged test for inequality of effort delineated in Hodgson v. Brookhaven General Hospital, supra. Some of the activities Blavier engaged in did not consume a significant amount of time, and those which did, specifically the Saturday morning duties, were ordinarily performed by full-time employees compensated at a lower rate. See Shultz v. Wheaton Glass Co., supra, 421 F.2d at 263. The district court’s interpretation of the facts, leading to its conclusion of equality of effort, strongly reinforces this holding.

The extra duties performed by Blavier, not only fail to meet the Hodgson v. Brookhaven General Hospital standard, but also take on reduced significance viewed in light of the fact that the majority of those extra duties were performed on the weekend, while the crucial issue is one involving a discriminatory hourly wage rate.

B. Limitations

The statute of limitations applicable to actions brought under the Equal Pay Act provides that “ * * * every such action shall be forever barred unless commenced within two years after the cause of action accrued.” 29 U.S.C. § 255(a). Appellant argues that, since Mrs. Wooley began her duties as supervisor on May 6, 1966, and suit was not brought until December 17, 1970, the cause of action accrued in 1966 and the statute bars this suit. We disagree.

Sex-based, discriminatory wage payments constitute a continuing violation of the Equal Pay Act. See Shandelman v. Schuman, E.D.Pa.1950, 92 F.Supp. 334, 335, and Mitchell v. Lancaster Milk Co., M.D.Pa.1960, 185 F.Supp. 66, 70, holding that illegal minimum wage and overtime payments constitute continuing violations. The court in Mitchell, quoting Shandelman, stated that,

“It is well settled that ‘A separate cause of action for overtime compensation accrues at each regular payday immediately following the work period during which the services were rendered and for which the overtime compensation is claimed.’ ”

To hold otherwise would permit perpetual wage discrimination by an employer whose violation of the Equal Pay Act had already lasted without attack for over two years.

Appellant’s reliance on Unexcelled Chemical Corp. v. United States, 1953, 345 U.S. 59, 73 S.Ct. 580, 97 L.Ed. 821, and United States v. Lovknit Mfg. Co., 5 Cir. 1951, 189 F.2d 454, cert. denied 342 U.S. 896, 72 S.Ct. 229, 96 L.Ed. 671 (1952), is misguided. Those eases held only that a cause of action accrues, giving rise to liability for liquidated damages under the Walsh-Healey Public Contracts Act when the minor in question is employed, is not relevant here. That narrow holding

Behrens’ wage discrimination is a continuing violation of the Equal Pay Act, and wages due under the Act for the two years preceding this suit are recoverable.

IV. CHECKERS

In ruling on the third category of workers, designated “checkers” or “double checkers,” the district court found that two female workers were employed in that capacity during the period in question — Edna Newland from January 1, 1968 to June 1, 1970, and Ruth Taylor from November 1, 1970 to December 31, 1970. The court also found that during the same period Behrens employed two males as “checkers” — Julius Horton from January 1, 1968 to June 22, 1968, and Mark Meadows from March 1, 1970 to October 3, 1970. Male and female “checkers” performed the same principal duty — they checked the merchandise to be shipped against the customer’s order to prevent shipment of unordered items.

The female “checkers” were paid at rates below those paid to the male “checkers.” yet, they were found to have performed work “requiring substantially equal skill, effort and responsibility.” [App. 215.]

Behrens raises several objections to the district court’s holding with respect to “checkers.” First, it challenges the ruling that Mrs. Newland, while checking in the middle aisle, performed work equal to that of Horton who checked at the end of the aisle. Behrens claims that the end of the aisle checker was responsible for checking narcotics, an obligation not imposed upon the middle of the aisle checker and purportedly requiring sufficient extra responsibility and effort to render the positions unequal under the Act.

Although checking narcotics certainly entails increased responsbility, the mechanical aspects of the task merely require preparation of a few extra forms. [App. 301.] The developing law of remunerative equality has increasingly been viewed as a question of fact to be determined on a case by case basis. See Hodgson v. Golden Isles Convalescent Homes, supra, and Hodgson v. Brookhaven General Hospital, supra. Evidence clearly exists to support the district court’s finding that Mrs. Newland and Horton performed equal work. In fact, the pay schedule reveals that Mrs. Newland’s salary was not immediately increased when she became close-out checker, suggesting that the narcotics handling aspect of that job was not by itself determinative of higher pay.

Second, appellant argues that no male worked as a close-out checker between February 2,1970 and June 19, 1970 when Mrs. Newland performed that task. Horton, Mrs. Newland’s predecessor at the close-out point, received $1.65 an hour, the same wage Mrs. Newland received after February 2, 1970. Thus, no equal pay violation occurred as between Horton and Mrs. Newland for that period.

The district court found, however, that another male employee, Mark Meadows, performed work equal to that of a checker at a higher pay than Mrs. Newland during the February to June period. Meadows was officially designated a shelver, but job content, not job description is the critical issue. Hodgson v. Brookhaven General Hospital, supra. This contention of unequal work, like Behrens’ first argument, is basically a disagreement over the court’s factual determination. Ample facts support the district court’s finding and that finding is not clearly erroneous. Rule 52, F.R. Civ.P.

Ruth Taylor was found to be due $558.94 in back wages for the period from December 21, 1968 to November 16, 1971. She worked as order filler prior to November 1, 1970, and from that date to November 16, 1971 she worked as close-out checker. The parties agree that her compensation as close-out checker was not in violation of the Act’s equal pay provisions. Accordingly, the amount of restitution awarded her by the district court should be reduced by the amount which was computed to have accrued from November 1, 1970 to November 16, 1971. (Behrens’ Brief, p. 45; the Secretary’s Brief, p. 31 n. 14.) The district court’s judgment should be modified by so reducing the judgment in favor of Ruth Taylor. In all other aspects the judgment is affirmed.

Modified and affirmed.

      . “(d)(1) No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system ; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, ^ reduce the wage rate of any employee.”

      . 29 U.S.C. § 206(d) (3) provides the authority for the Secretary to act on behalf of the woi'kers by stating that,
      “For purposes of administration and enforcement, any amounts owing to any employee which have been withheld in violation of this subsection shall be deemed to be unpaid minimum wages or unpaid overtime compensation under this chapter.”
      And 29 U.S.C. § 216(c) empowers the Secretary to bring civil action on behalf of employees to recover such “minimum wages or unpaid overtime compensation.”

      . “§ 800.148 Examples — training programs.

      “Employees employed under a bona fide training program may, in the furtherance of their training, be assigned from time to time to various types of work in the establishment. At such times, the employee in training status may be performing equal work with non-trainees of the opposite sex whose wages or wage rates may be unequal to those of the trainee. Under these circumstances, provided the rate paid to the employee in training status is paid, regardless of sex, under the training program, the differential can be shown to be attributable to a factor other than sex and no violation of the equal pay standard will result. Training programs which appear to be available only to employees of one sex will, however, be carefully examined to determine whether such programs are, in fact, bona fide. In an establishment where a differential is paid to employees of one sex because, traditionally, only they have been considered eligible for promotion to executive positions, such a practice, in the absence of a bona fide training program, would be a discrimination based on sex and result in a violation of the equal pay provisions, if the equal pay standard otherwise applies.”

      . App. p. 438. The Secretary contends that Miss Neeley refused the job because she was not offered an increase in pay or the incentive of the normal commission arrangement, while Behrens argues that pay was never discussed.

      . Behrens concedes that its training program lasts for an indefinite period of time, but argues that it ends at an identifiable point — when familiarity with all the warehouse jobs is satisfactorily accomplished and a sales position opens. This circuitous reasoning fails to focus upon an identifiable termination point. Theoretically, a job slot cannot be filled until the training program is successfully completed. Thus, to say that the program ends when the job slot opens implies that completion of the program is not a prerequisite to beginning a sales job. If that is true, then the program’s validity is cast in a questionable light.

      . “Sec. 2. (a) The Congress hereby finds that the existence in industries engaged in commerce or in the production of goods for commerce of wage differentials based on sex —
      (1) depresses wages and living standards for employees necessary for their health and efficiency;
      (2) prevents the maximum utilization of the available labor resources ;
      (3) tends to cause labor disputes, thereby burdening, affecting, and obstructing commerce;
      (4) burdens commerce and the free flow of goods in commerce; and
      (5) constitutes an unfair method of competition.
      “(b) It is hereby declared to be the policy of this Act, through exercise by Congress of its power to regulate commerce among the several States and with foreign nations, to correct the conditions above referred to in such industries.”
      Public Law 88-38 (1963), 77 Stat. 56.

      . “Representative Donahue speaking in behalf of this legislation characterized the need for the Equal Pay Act to eliminate these assumptions:
      “ ‘We all realize that the origin of the wage rate differential for men and women performing comparable jobs is the false concept that a woman, because of her very nature, somehow or other should not be given as much money as a man for similar work. This antiquated concept has been long and completely demonstrated to be false and it is indefensible from every standpoint. This being so, we may wonder why this legislation is necessary.
      “ ‘The answer is furnished to us in the authoritative information provided by witnesses before the House Committee on Education and Labor and the impressive array of statistics unhappily proving that discrimination in wage payments, on the basis of sex alone, continues to exist even in this modem space age.
      “ ‘Recognizing that the concept of wage payment discrimination against women is false; having before us the surprising but overwhelming evidence that such discrimination still continues to exist; * * * this measure represents the correction of basic injustice being visited upon women in many fields of endeavor * * * extending simple wage justice to the increasing corps of America’s working women.’
      109 Cong.Rec. 9212.” Shultz, supra, 420 F.2d at 656 n. 17.

      . We note in passing that Behrens’ annual sales volume has regularly exceeded $1,-000,000. Thus, Behrens is only small in relation to the corporate giants.

      . The district court found as a matter of fact that female order fillers were paid substantially less than male “trainees” performing the same work. [App. 211.] Behrens contests the validity of that factual finding, but after careful study of the record, we do not find the district court clearly erroneous.

      . App. pp. 212, 213.

        Females:

      Annette Neeley — Jan. 1, 1968 to Dec. 31, 1970
      Treva Coomer — Oct. 1, 1968 to Dec. 31, 1970
      Patricia Kolb — Nov. 30, 1970 to Dec. 31, 1970

        Males:

      Jack Carney — Jan. 1, 1968 to Mar. 2, 1968
      Martin Connor — Jan. 1, 1968 to Mar. 2, 1968
      Tommy Ball — Feb. 28, 1970 to July 4, 1970
      Thomas Bailey — Dec. 7, 1970 to June 1, 1971

      . 29 C.E.R. § 800.114(b):
      “(b) Section 6(d)(1) prohibits discrimination on the basis of sex in the payment of wages to employees ‘for equal work on jobs’ which are equal under the standards which it provides (emphasis supplied). (See the discussion in § 800.119, et seq.) The legislative history of the Equal Pay Act expressly refers to the War Labor Board experience as furnishing a guide for testing ‘the relationship between jobs’ and determining ‘equal work’ and ‘equal skills’ for purposes of a ‘practical’ administration and application of the Act’s ‘equal pay policy’ (see, e. g., S. Rept. 176, 88th Gong. 1st sess., to accompany S. 1409; H.Rept. 309, 88th Gong. 1st sess., to accompany H.R. 6060). Some of the earliest eases confronting the War Labor Board on the application of the ‘equal pay for equal work’ principle involved situations in which women were being hired to replace men as a result of the manpower shortages. The Board consistently ruled that the principle applied to these situations, as well as to situations where male and female employees performed the same work concurrently and interchangeably, and therefore that women assigned ‘to take the place of men’ to perform substantially the same jobs ‘formerly performed by men’ were entitled to the same rate of pay as the men whom they replaced. Rotary Cut Box Shook Industry, 12 W.L.B. Rept. 605, 606, 608; General Electric Co., and Westinghouse Electric Co., supra [Case Nos. 111-17208-D and 111-17209-D, Dec. 12, 1945], at pp. 668-669, 677, 686.”

      . At one point Behrens advanced, but did not fully develop, the theory that Blavier was a “supervisor” while Mrs. Wooley was merely a “chief operator.” See App., p. 731 and appellant’s brief, p. 38. But the controlling factor under the Equal Pay Act is not job description, but job content. Hodgson v. Brookhaven General Hospital, supra, 436 F.2d at 724; 29 C.F.R. § 800.121 (1970).

      . Plaintiff’s Exhibit No. 6—Schedule P-10, App. pp. 170-171, documents this wage discrepancy.


source: Caselaw Access Project

author: TIMBERS, Circuit Judge;

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Alphonso MOSCA, Sr., et al., Appellants.
    Nos. 354, 355, Dockets 72-1750, 72-1764.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 10, 1972.
    Decided March 5, 1973.
    Certiorari Denied June 18, 1973.
    See 93 S.Ct. 3003, 3019.

      H. Elliot Wales, New York City (Gretchen White Oberman, New York City, on the brief), for appellants Alphonso Mosca, Sr., and Alphonso Mosca, Jr.
    Henry Mark Holzer, Brooklyn, N. Y., for appellant Wolfson.
    Allen Lashley, Brooklyn, N. Y., for appellant Zavod.
    Marshall G. Kaplan, Brooklyn, N. Y., for appellant Emmons.
    Sidney M. Glazer, Atty., Dept, of Justice, Washington, D. C. (Robert A. Morse, U. S. Atty., Brooklyn, N. Y., Denis E. Dillon, Liam S. Coonan and Shirley Baccus-Lobel, Attys., Dept, of Justice, Washington, D. C., on the brief), for appellee.
    Before FRIENDLY, Chief Judge, and MANSFIELD and TIMBERS, Circuit Judges.
   TIMBERS, Circuit Judge;

Appellants Alphonso Mosca, Sr., Alphonso Mosca, Jr., Nathan Wolfson, Joseph Zavod and William Emmons appeal from judgments of conviction entered upon jury verdicts returned November 16, 1971 after an eleven day trial before John F. Dooling, District Judge, in the Eastern District of New York, finding each appellant guilty on one count of wire fraud, in violation of 18 U.S.C. § 1343 (1970), and on one count of conspiring to commit mail and wire fraud and of conspiring to harbor a fugitive, in violation of 18 U.S.C. § 371 (1970).

The chief issue raised on appeal by all appellants is whether the trial judge erred in denying their motions to set aside the verdicts and for new trials on the ground that the government failed upon request to make available to appellants a potential witness whose whereabouts was known to the government but not to appellants. Other subordinate claims of error are raised by several of the appellants.

We affirm.

I.

In view of the issues raised on appeal, a summary description of the fraudulent scheme and conduct for which appellants were convicted will suffice. Essentially the evidence established that defendants organized and used a straw corporation with a grossly misleading statement of assets (this corporation being funded by worthless debentures of another straw corporation) to purchase construction loan mortgages by the issuance of commitment letters. Such commitment letters were in the nature of guaranties; they commanded sizeable fees; but they were in fact worthless because of the absence of any assets in the issuing corporation.

Judge Dooling succinctly described the fraud charged as follows:

“Broadly, the charge of the indictment was that the defendants had formed a scheme to defraud those seeking and those granting mortgage loans by forming a straw company having no real assets which would for a fee issue commitment or ‘take-out’ letters by which it bound itself to purchase construction loan mortgages made by lending institutions. Such commitment letters were meant to enable prospective borrowers to obtain mortgage financing for construction projects which the lending institutions would not otherwise finance because of their unwillingness to make long term real estate mortgage loans. The fraud consisted in defrauding prospective borrowers of the fees they paid for the worthless commitment letters and defrauding the lending institutions by inducing them to lend in reliance on the worthless commitment letters.”

There was a great deal of evidence adduced at the two week trial in support of the foregoing charges. The evidence of course must be viewed in the light most favorable to the government at this stage of the case. United States v. D’Avanzo, 443 F.2d 1224, 1225 (2 Cir.), cert. denied, 404 U.S. 850 (1971). With the exception of appellant Wolfson, none of the appellants challenges the sufficiency of the evidence.

II.

What each of the appellants does challenge, however, is the trial judge’s denial of their motions to set aside the verdicts and for new trials. Such motions were based on the claim that the government had sequestered a potential witness whose whereabouts was known to the government but not to appellants. A statement of the facts and proceedings in the trial court involving this claim is necessary to an understanding of our ruling thereon.

The witness in question was Mrs. Edward Wuensche. She was the wife of Edward Wuensche, a named co-eonspirator but not a defendant. He was the government’s principal witness at the trial. It was he whom defendants were charged with having harbored as a fugitive. They allegedly furnished him with false identification papers so that, under a fictitious name, he could act as an officer of the straw corporation formed to issue commitment letters.

The question of the whereabouts of Mrs. Wuensche was first raised during cross-examination of Edward Wuensche by counsel for defendant Emmons. He demanded that the government either produce Mrs. Wuensche or disclose her whereabouts so she could be subpoenaed. Government counsel informed the court that she was a British national, that she was not within the continental United States and that she was beyond the process of the court.

While there was much backing and filling during the balance of the trial on the demand for production of Mrs. Wuensche and numerous proposals were made to provide her testimony or its equivalent in some form, the primary purpose of defense counsel at the time of trial was to lay a basis for requesting the court to charge that the jury might infer from the withholding of a witness within a party’s control that the testimony of such witness would be unfavorable to the party failing to call the witness. As counsel for defendant Emmons candidly stated, “Judge, all I want is this Charge.” The court eventually charged the jury on this issue substantially as requested by defense counsel.

Going back for a moment to the point in the trial when the evidence had been concluded, on Thursday, November 11, 1971, the court excused the jury until the following Monday, November 15, but recessed the trial to the following day, November 12, at which time counsel and defendants were present. After an extended colloquy on November 12 between counsel and the court on the unavailability of Mrs. Wuensche as a witness, there finally emerged from counsel for defendant Emmons an unequivocal application for issuance of a subpoena to compel her attendance as a witness. The court immediately granted the application. It ordered that a subpoena made returnable the following Monday, November 15, be served on Mrs. Wuensche, and that she be tendered sufficient government funds to provide for her transportation to the courthouse.

On the next court day, November 15, government counsel informed the court that over the weekend efforts had been made by a United States Marshal to serve the subpoena on Mrs. Wuensche and that she had been tendered transportation expenses. She refused to accept service of the subpoena and refused to come to the trial. Government counsel further reported that his efforts to speak with Mrs. Wuensche by telephone had been met with a refusal on her part to come to the phone. And finally government counsel reported that his efforts to have Mr. Wuensche persuade Mrs. Wuensche to appear at the trial likewise had failed to produce the witness.

Despite such efforts, defense counsel continued to press for an explanation as to why the witness was beyond the subpoena reach of the court. Government counsel stated that the present location of Mrs. Wuensche reflected a decision of the McClellan Subcommittee of the Senate Judiciary Committee, before which Mr. Wuensche had appeared as a witness at an earlier date. When defense counsel pointed out that there was no evidence of that in the record, Judge Dooling stated that “if the defendants wanted a full dress investigation [the Court] would request the Government to delay the trial and afford defendants an opportunity to take Mrs. Wuensche’s deposition at some place other than her then place of refuge on the issue of her willingness to appear as a witness, the reason why she was where she was and what her apprehensions were.”

Counsel for defendant Emmons immediately responded, “Well, I am ready to sum up, Judge.” He indicated that in summation he intended simply to tell the jury that “Mrs. Wuensche had not appeared to support her husband’s testimony.” He did. Following summations by all counsel, Judge Dooling charged the jury, including the instruction requested by the defense on the government’s failure to call Mrs. Wuensche as a witness. This concluded the November 15 trial proceedings.

On the following day, November 16, the jury returned its verdict convicting appellants on Counts One and Two and acquitting them on Count Three. After the jury had been discharged, Judge Dooling invited counsel to file any appropriate motion to determine (a) the facts with respect to Mrs. Wuensche’s availability as a witness; (b) the explanation of her unavailability if it existed; (c) whether she was testimonially qualified as a witness in the case; and (d) if so, what the contents of her testimony would have been. Upon the filing of such a motion by appellants Emmons, Wolf son and Zavod, Judge Dooling entered an order on February 7, 1972 authorizing counsel for Emmons (representing Wolf son and Zavod as well) to attend the taking of Mrs. Wuensche’s deposition in London, England, and to be reimbursed by the government for his expenses in doing so. Pursuant to a commission issued to counsel for Emmons, the deposition of Mrs. Wuensche was taken at the American Embassy in London on March 9 before an American Vice-Consul. The witness was examined on direct by counsel for Emmons, on cross by government counsel. The deposition, after being transcribed, was signed and sworn to by Mrs. Wuensche on March 16. It was filed in the district court on April 6. The complete deposition, consisting of 139 pages, is included in the Supplemental Appendix For Appellee on the instant appeal.

III.

The deposition of Mrs. Wuensche, to the extent it is relevant to the essential issue raised on this appeal, may be briefly summarized.

Mrs. Wuensche was in England with her seventeen year old daughter at the time she was subpoenaed to testify at the trial of the instant case in November 1971. She had been born in England and had never become a United States citizen by naturalization or otherwise. While in the United States, both she and her daughter travelled on British passports.

Mrs. Wuensche had left the United States about October 1, 1971 (one month before the trial below began), aceompanied by her daughter and husband. They departed the United States from Washington, D. C., where they had been while Mr. Wuensche was testifying before the McClellan subcommittee. During this period they were in the protective custody of United States marshals who told them to remain in their rooms and not to talk to anyone. Upon the completion of Mr. Wuensche’s testimony before the subcommittee, they were told (presumably by the subcommittee staff) that they could leave the United States. Mr. Wuensche bought their airplane tickets at the Washington airport in the presence of Mrs. Wuensche and the marshals. The marshals drove Mr. and Mrs. Wuensche and the latter’s daughter to the airport in a government vehicle. The marshals assisted them in boarding the plane which took them to England.

Mrs. Wuensche testified that she had left the United States at the first opportunity because of certain threats that had been made upon her life. Such threats were communicated to her by Joseph Gold (a co-conspirator and a government witness at the trial) on behalf of defendants Wolfson and Emmons. The gist of the threats was that appellants Wolfson and Emmons would “work over” Mrs. Wuensche if she would not give them the name of a certain individual in Tennessee. She continually asserted that she did not know any such person; but she became frightened because in the past she had heard the alleged co-conspirators speak of others they had “worked over”, including one man who was said to have been shot five times and who ended up with a hatchet through his head. She testified that as a result of these threats she refused to return to the United States, even when she was served in November 1971 with a subpoena to appear at the trial of this case (in which her husband had already testified).

With respect to the business transactions that led to the instant indictment, Mrs. Wuensche admitted having been at the scene of many meetings concerning the company in question, but denied having any substantive knowledge or understanding of its structure or workings. She testified to the presence at some or all of these meetings of each of the alleged co-conspirators. The dates, places, and participants which she mentioned in connection with these meetings generally conformed to the trial testimony given earlier by her husband. She further testified that appellants unquestionably were aware of the fact that Mr. Wuensche had been sought by the FBI for alleged parole violations, and implied that the various changes in name and situs resorted to by the Wuensches during this period were within the knowledge, and perhaps at the direction, of the alleged co-conspirators.

Regarding the government’s involvement in her departure from the United States, Mrs. Wuensche consistently maintained that the decision to depart was her own and was due to the apprehension caused by the threats she had received. She also testified that at various times prior to her departure she had been interviewed by counsel for the McClellan subcommittee, by the FBI, and by members of the staff of the United States Attorney’s office. As indicated above, her actual departure was facilitated by the United States marshals.

IV.

It seems clear from the foregoing summary of Mrs. Wuensche’s deposition, as well as the context in which it was taken, that appellants failed to demonstrate any prejudice resulting from their inability to call Mrs. Wuensche as a witness at trial. Her deposition indicated that, if called, she would have simply corroborated in certain respects the testimony of her husband, the government’s chief witness. None of Mr. Wuensche’s testimony was in any way contradicted by Mrs. Wuensche. Indeed, the one likely effect of in-court testimony by Mrs. Wuensche would have been to establish appellants' knowledge of Mr. Wuensche’s parole violation, thereby damaging appellants on the fugitive harboring count upon which they were acquitted. The principal question before us, therefore, is whether the government’s involvement in making Mrs. Wuensche unavailable as a trial witness requires reversal despite the absence of any showing of prejudice to appellants. We hold that it does not.

Under Fed.R.Crim.P. 52(a), an error at trial shall be disregarded on appeal if it “does not affect substantial rights”; and see 28 U.S.C. § 2111 (1970). In Kotteakos v. United States, 328 U.S. 750, 764-65 (1946), the test for determining whether that standard had been met was said to be, “[i]f, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress.” That test was refined by our Court in Kyle v. United States, 297 F.2d 507 (2 Cir. 1961), where the government allegedly had suppressed or lost certain letters which the defendant claimed had come into the government’s possession prior to the trial. In ordering that a hearing be held on that claim, we first noted the defendant’s weak showing of prejudice and materiality, but concluded that that fact, in and of itself, was not necessarily dis-positive :

“[T]he standard of how serious the probable effect of an act or omission at a criminal trial must be in order to obtain the reversal or, where other requirements are met, the vacating of a sentence, is in some degree a function of the gravity of the act or omission; the strictness of the application of the harmless error standard seems somewhat to vary, and its reciprocal, the required showing of prejudice, to vary inversely, with the degree to which the conduct of the trial has violated basic concepts of fair play.
The reason why the showing of prejudice required to bring down the balance in favor of a new trial will vary from case to case is that the pans contain weights and counterweights other than the interest in a perfect trial. Sometimes only a small showing of prejudice, or none, is demanded because that interest is reinforced by the necessity that ‘The administration of justice must not only be above reproach, it must also be beyond the suspicion of reproach,’ People v. Savvides [1 N.Y.2d 554, 557, 154 N.Y.S.2d 885, 887, 136 N.E.2d 853, 854-55 (1956)] and by the teachings of experience that mere admonitions are insufficient to prevent repetition of abuse. See Mapp v. Ohio, 367 U.S. 643, 650-653, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). In other cases, where the conduct of the trial has been less censurable, or not censurable at all, a greater showing of prejudice is demanded, because the interest in obtaining an ideal trial, with the trier of the facts considering all admissible evidence that has ever become available, and nothing else, is not thus supplemented and may be outweighed by the interest in avoiding a retrial unlikely to have a different outcome — an interest especially weighty when, as is normally true on collateral attack, the second trial will come long after the first.” 297 F.2d at 514.

This two-dimensional approach, in which the requisite showing of prejudice will vary inversely to the gravity of the misconduct, has been repeatedly applied by our Court. E. g., United States v. Mayersohn, 452 F.2d 521, 525-26 (2 Cir. 1971); United States v. Keogh, 391 F.2d 138, 146-48 (2 Cir. 1968); cf. United States v. Mele, 462 F.2d 918, 924 (2 Cir. 1972) . As we summarized the rule in United States v. Mayersohn, supra, 452 F.2d at 526, “the more egregious the suppression, the less material to the verdict need be the evidence suppressed to justify a new trial. Where the suppression is deliberate, the interest in enforcing the second principle becomes paramount. Where the suppression is inadvertent, the principles reach equipoise and a careful analysis of the extent to which the evidence suppressed harmed the defendant is required.” (footnotes omitted). Here, there can be no doubt that the government’s conduct reflects indiscretion and a lack of candor which the district court appropriately denounced as “unfortunate in the extreme and [indicative of] a recklessness of procedure on the Government’s part which is to be emphatically deplored.” 355 F.Supp. at 273. We further agree with the district court, however, that “it cannot be said that any substantial interest of any defendant was sacrificed or prejudiced by what occurred.” 355 F.Supp. at 273. What saves this case from reversal is our agreement, based on our independent examination of the record, with the district court’s finding that “[i]f any general inference is to be drawn from the entire transcript of the testimony of Mrs. Wuensche it would be that if either side had been disposed to call her as a witness it would have been the Government and that the probability that, after interview, the defendants would have decided not to call her as a witness is all but overwhelming.” 355 F.Supp. at 273. Cf. United States v. Mendez-Rodriguez, 450 F.2d 1 (9 Cir. 1971). That fact must be considered in the context of the failure of appellants to take any steps that might have allowed them to locate, and ultimately to depose, Mrs. Wuensche prior to her departure from the country, despite the district court’s finding that “The potential usefulness of Mrs. Wuensche as a witness was necessarily obvious to each of the defendants.” 355 F.Supp. at 272. In that context, we conclude that the government cannot be said to have “deliberately” sequestered and removed a witness “whose high value to the defense could not have escaped the prosecutor’s attention”. United States v. Keogh, supra, 391 F.2d at 146-47.

Thus, while it cannot be said that the departure of Mrs. Wuensche without prior notice to appellants was “inadvertent”, neither can it be said that thé government’s conduct was so egregious as to preclude the court from considering the harm that resulted therefrom. United States v. Mayersohn, supra, 452 F.2d at 526. As we have noted above, no substantial interest of any appellant was prejudiced by the absence of Mrs. Wuensche as a trial witness. Unlike other cases which have dealt with problems of this sort, see United States v. Mendez-Rodriguez, supra, 450 F.2d at 3, we are not under the disability of having to speculate as to the existence of prejudice. We have had the benefit of being able to scrutinize the deposition of Mrs. Wuensche; and we are left with the firm conviction that her testimony, had it been available at trial, would have had no effect on the outcome of the case, except possibly to strengthen the government’s evidence on the fugitive harboring count upon which appellants were acquitted. Cf. United States v. Miller, 411 F.2d 825, 832 (2 Cir. 1969).

We therefore hold that, while the government’s conduct with respect to Mrs. Wuensche was deplorable, it nevertheless did not sink to such a level as to remove from the balance pans to be weighed on appeal the harm that resulted; that appellants have failed to demonstrate any prejudice resulting from their inability to call Mrs. Wuensche at trial; and, consequently, that no basis for reversal has been shown.

V.

Appellants’ only other claim of error which warrants brief mention is the claim of misconduct on the part of the government in permitting co-defendant Scially to participate in conferences with other defendants, including pretrial conferences, after he began to cooperate with the government. Four months after the filing of the indictment, in a development unknown to his co-defendants, Scially began cooperating with the government. Thereafter, he participated as a defendant in two pretrial conferences held in the presence of the trial judge and counsel for both sides.

Appellants, in support of their claim of error in this regard, rely chiefly upon two decisions by the Court of Appeals for the District of Columbia Circuit for the proposition that a surreptitious invasion by a government agent into the legal camp of the defense may violate the protection of the Sixth Amendment, at least where the invasion is sufficiently pervasive and pernicious. Caldwell v. United States, 205 F.2d 879 (D.C.Cir.1953); Coplon v. United States, 191 F.2d 749 (D.C.Cir.1951), cert. denied, 342 U.S. 926 (1952). Cf. Hoffa v. United States, 385 U.S. 293, 306 (1966). The facts of the instant case fall far short of the mark of those cases.

First, it appears that the only important contact that Scially had with the other defendants following the commencement of his cooperation with the government was at the two pre-trial conferences mentioned above, in the presence of both the trial judge and counsel for the parties. Moreover, the government categorically denies that it received any information from Scially regarding defense strategy. Cf. United States ex rel. Cooper v. Denno, 221 F.2d 626, 629 (2 Cir.), cert. denied, 349 U.S. 968 (1955). Further, there was no attempt whatever to elicit at trial any testimony from Scially as to conversations overheard by him subsequent to his decision to cooperate.

Thus, while we believe that such tactics are beneath the high standards of professional conduct expected of government counsel, we do not find such tactics to be so condemnable as to warrant automatic reversal. Prejudice to appellants must be considered. Finding none, we hold that no substantial right of appellants has been infringed.

VI.

We have carefully considered the other claims of error raised by appellants and find them to be without merit.

Finally, the most noteworthy aspect of this case, in our view, is the highly commendable manner in which Judge Dooling handled the difficult problems with which he was confronted. At every stage of the proceedings, his skill and fairness in protecting the rights of the parties comported with the highest standards of the federal judiciary.

Affirmed.

      . The indictment, returned March 24, 1971, also charged defendants Harry Riccobene and John Scially, as well as the five appellants, with wire fraud (Count Two). The conspiracy count (Count One), in addition to charging the seven defendants referred to in Count Two, also named Edward Wuensche, Joseph Gold and Bernard Solomon as co-conspirators, but not as codefendants, in conspiring to commit mail and wire fraud and in conspiring to harbor a fugitive.
      On the first day of the trial, Riccobene’s case was severed; but wc have not been informed as to what became of his case thereafter. Also on the first day of the trial, Scially pleaded guilty to the conspiracy count; he testified as a government witness; and on March 3, 1972 he was sentenced to a five year term of probation on Count One, the other two counts being dismissed on motion of the government.
      The indictment also charged the five appellants, as well as Riccobene and Scially, in Count Three, with harboring a fugitive (Edward Wuensche), in violation of 18 U.S.C. § 1071 (1970). The jury acquitted all appellants on this count.
      On June 16, 1972, Judge Dooling sentenced the five appellants to concurrent terms of imprisonment on Counts One and Two as follows: Mosca, Jr., one year and a day; Emmons and Wolfson, two years under 18 U.S.C. § 4208(a) (2) (1970) ; and Zavod and Mosca, Sr., two years under 18 U.S.C. § 4208(a)(1) (1970), each to become eligible for parole after four months imprisonment.

      . Judge Dooling’s opinion of June 5, 1972 denying appellants’ motions to set aside the verdicts and for new trials. 355 F.Supp. 267, 268 (E.D.N.Y.1972).

      . We shall assume familiarity with Judge Dooling’s detailed findings of fact on this issue which are set forth in his opinion of June 5, 1972. Supra note 2, 355 F.Supp. at 268-72.

      . It was trial counsel for defendant Emmons who pressed the issue at trial as to the whereabouts of Mrs. Wuensche; and it was he who, together with government counsel, took her deposition in England, referred to below. Nevertheless, counsel for all appellants now avail themselves of the claim that the government improperly sequestered her. And we treat the claim as one raised by all appellants.

      . The court charged the jury on this issue as follows:
      “The unexplained failure of Government to call a witness who was indicated by the evidence to be in a position to give material and relevant testimony that would not be merely cumulative of other testimony, warrants you in inferring that the testimony of such witness, if called, would not be favorable to the Government, as a party having the burden of proof on the issues, on which that witness could testify, provided you are satisfied from the evidence that the witness is available to be called, and if called, would testify.”

      . None of the defendants had testified and no witnesses had been called to testify on their behalf.

      . Supra note 2, 355 F.Supp. at 270.

      . In summation, counsel for defendant Emmons stated:
      “And, incidentally, you may have noticed that even though Wuensche testified without contradiction a couple of times that he was living with his wife and that apparently his wife didn’t think enough of the story to come here and support it in any respect.”

      . Supra note 5.

      . Supra note 2, 355 F.Supp. at 270.

      . Appellants Mosca, Sr. and Mosca, Jr. specifically disassociated themselves from this motion.

      . As Judge Dooling did, we accept as true Mrs. Wuensche’s deposition testimony for purposes of determining the issue raised on appeal. Counsel for appellants and for the government were present and participated in the examination of the witness.

      . Mrs. Wuensche had been in the United States continuously since 1967 (except for brief periods in Canada). She had been living with Mr. Wuensche for most of the time since then, both before and after their marriage in September 1969, including the time period relevant in this case. Mrs. Wuensche was in protective custody in the United States from March 1971 until she left this Country in October.

      . No memoranda or records of such alleged interviews by the FBI and by Mr. Lynch, an Assistant United States Attorney for the Eastern District of New York, were in the government files.

      . Historically, both the rule and the statute have been taken to apply only to errors by the trial judge. In United States v. Ravich, 421 F.2d 1196, 1201-02 (2 Cir.), cert. denied, 400 U.S. 834 (1970), however, we found “no good reason for holding police officers to a standard of perfection while excusing error’s by judges that do not affect substantial rights.” We shall therefore assume here, as we often have done, e. g., Kyle v. United States, 297 F.2d 507, 512-14 (2 Cir. 1961), that errors by the prosecution may similarly be treated under the harmless error doctrine.
      We also recognize that inherent in appellants’ claim is the alleged denial of the Sixth Amendment right to compulsory process. The limited applicability of the harmless error rule to constitutional claims was first noted by the Supreme Court in Chapman v. California, 386 U.S. 18, 21-24 (1967), and has since been reinforced in such cases as Harrington v. California, 395 U.S. 250, 254 (1969), and United States v. Schor, 418 F.2d 26, 30 (2 Cir. 1969). We hold under the circumstances of this case that denial of appellants’ right to compulsory process, if error at all, was harmless beyond a reasonable doubt. Chapman v. California, supra, 386 U.S. at 42-45.

      . The government had complete control over Mrs. Wuensche for a six month period, until just prior to the start of the trial. It should have been obvious that her presence with her husband during the period relevant to the trial and her knowledge of the meetings relevant to the conspiracy charge made her a potential witness for both sides, and that defense counsel would want the opportunity to interview her, just as counsel for the government had already done. Despite this, the government kept her incommunicado during the pretrial period and then, one month before the trial was set to begin, allowed her to leave the Country and go beyond the power of the district court to compel her attendance.

        . In Mendez-Rodriguez, the throe witnesses obviously -wanted to stay in the United States but were returned to Mexico by the government. In the instant case, Mrs. Wuensche wanted very mucin to return to England. We do not regard the government’s failure to keep her here when she wanted to return to England as serious as its spiriting an unwilling witness out of tine Country.

      . Prior to his testimony at trial, Seially’s cooperation consisted primarily of appeariug, in July 1971, before the same grand jury that had returned the instant indictment.

      . Caldwell involved a paid informant who frequently attended defense meetings and reported these conversations to the government. In Coplon, the government had wiretapped the defendant’s telephone and intercepted privileged communications between her and her attorney.

      . This, presumably, was largely the result of a direction by the trial judge that Scially’s testimony was to be limited to events which occurred prior to the filing of the indictment,


author: PER CURIAM:

text:
    Julius HELLMAN, Plaintiff-Appellant, v. COLONIAL INSURANCE COMPANY, Defendant-Appellee.
    No. 71-1143.
    United States Court of Appeals, Ninth Circuit.
    March 19, 1973.

      L. R. Bretz (argued), Great Falls, Mont., for plaintiff-appellant.
    Clayton R. Herron (argued), Helena, Mont., Patrick F. Hooks, Townsend, Mont., for defendant-appellee.
    Before BARNES and DUNIWAY, Circuit Judges, and PECKHAM, District Judge.

       Honorable Robert F. Peckham, United States District Judge for the Northern District of California, sitting by designation.

   PER CURIAM:

In this action, plaintiff was injured in an accident occasioned by a runaway Mack tractor and trailer operated in Montana by a driver for Produce Dispatch, Inc., a California Corporation, who had obtained the use of the truck from one Bye, a former owner of the truck, who, with the new owner’s permission, had obtained control and possession of the truck, and had rented the truck out to other persons, from time to time.

The owner of the truck, one Kuffel, a resident of the state of California, had insured the truck with the defendant Colonial Insurance Company. The insurance policy herein limited the insurer’s liability to the use of the insured vehicle “within the state of California . and any other use or operation beyond the territorial limitations of this policy shall make it void.” (Ex. 1, Tr. 2).

There was testimony that the truck had once been used outside the State of California (in Nevada) for five or ten miles, but the owner, Kuffel, testified he knew of this only after the fact. He had no knowledge the truck was being used in Montana, and Bye had denied it was in Montana on the day of the accident, in a conversation with Kuffel in Los, Angeles on that day.

The sole issue before us is whether the decision and judgment of the District Court is to be affirmed. Such a judgment is not to be disturbed if supported by substantial evidence and is not erroneous as a matter of law. United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Glens Falls Ind. Co. v. United States, 229 F.2d 370, 373 (9th Cir. 1955).

While there was no omnibus clause in the policy as written, the District Court held the territorial exclusion was void, calling into effect the provisions of both Sec. 415 of the California Vehicle Code (now Sec. 16451 in Financial Responsibility Section of that Code), and the vicarious liability statute (Sec. 17150 of California Vehicle Code). Nevertheless, said sections do not aid plaintiff, for each section specifies they are applicable only if the use of the vehicle is “with the permission, express or implied, of the owner.” By the court’s findings III and VIII he ruled “there had been no permission, express or implied, of the owner” to the use in Montana. These findings are not attacked, but appellant urges that the “liberal” or Arizona rule that a “general consent” is sufficient to govern the California Vehicle Code, rather than the “conservative” view, that if no consent is proved for the vehicle’s use outside the state, then no coverage exists. The latter is the California view, Henrietta v. Evans, 10 Cal.2d 526, 75 P.2d 1051 (1938); Rose v. Porter, 101 Cal. App.2d 333, 225 P.2d 245 (1950).

The burden of proof to establish requisite permission is on the plaintiff, and is a question of fact. Garmon v. Sebastian, 181 Cal.App.2d 254, 5 Cal.Rptr. 101 (1960); Couch on Insurance, § 45.460, p. 447.

The judgment of the district court is not erroneous as a matter of law, and we are bound by its findings of fact which have substantial support in the record before us. We need not discuss other points.

Affirmed.


author: BREITENSTEIN, Circuit Judge.

text:
    MERCHANTS INDUSTRIAL BANK, a corporation organized and existing under the laws of the State of Colorado, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 72-1397.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Jan. 10, 1973.
    Decided March 20, 1973.
    Richard R. Helmick, Denver, Colo. (Helmick, Conover & Burkhardt and H. Edward Kluver, Denver, Colo., on the brief), for petitioner-appellant.
    Richard Halberstein, Atty., Tax Div., Dept, of Justice (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks and Bruce I. Kogan, Attys., Tax Div., Dept, of Justice, on the brief), for respondent-appellee.
    Before BREITENSTEIN, McWILLIAMS, and BARRETT, Circuit Judges.
   BREITENSTEIN, Circuit Judge.

In this appeal from the Tax Court, the petitioner-appellant Merchants Industrial Bank contends that the Commissioner of Internal Revenue improperly disallowed portions of the taxpayer’s additions to a reserve for bad debts in each of the years 1965, 1966, and 1967. The Tax Court sustained the Commissioner. T.C.Memo. 1972-18.

Taxpayer is a bank which makes high-risk loans to persons whose credit does not qualify them for loans from the usual commercial banks. Because of the risk, it charges an average of 20% simple interest per annum. Loans are made for periods of six months to five years with approximately 42% of the dollar amount represented by five-year loans. About half of the loans are secured by second or third real estate mortgages and the other half either secured by chattel mortgages or unsecured.

Stated in terms of percentage of loans outstanding at the end of each year, the taxpayer’s net loss was: 1965 — 1.0%; 1966 — 1.1% ; 1967 — 1.3%. In its brief taxpayer says that its claimed deductions for additions to a reserve for bad debts “totalled slightly less than the total net bad debts actually charged off” during the years in issue. The Commissioner allowed such additions in the amount of .8% of the taxpayer’s outstanding loans for each pertinent year. This resulted in deficiency assessments of $361.59 for 1965, $279.98 for 1966, and $3,968.96 for 1967.

Section 166(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 166(a), permits an income tax deduction of “any debt which becomes worthless within the taxable year.” Section 166(c) provides that

“In lieu of any deduction under subsection (a), there shall be allowed (in the discretion of the Secretary or his delegate) a deduction for a reasonable addition to a reserve for bad debts.”

The reserve method of taking bad debt deductions has been a part of the revenue laws since 1921. See 42 Stat. 227, § 234(a)(5). Historically, the treatment of a bank’s bad debt reserves has been subject to various administrative pronouncements and policies. Under Mimeograph 6209, 1947-2 Cum.Bull. 26, banks were administratively permitted to establish bad debt reserves at three times their average annual loss experience. See First National Bank in Olney v. Commissioner, 7 Cir., 368 F.2d 164, 165-166. In 1965, Rev.Rul. 65-92, 1965-1 Cum.Bull. 112, established a uniform reserve ratio, which was codified by the Tax Reform Act of 1969 as § 585 of the Internal Revenue Code. Rev.Rul. 65-92 is important to the consideration of the instant case.

The bad debt reserve method permits taxpayers to defer taxes on income in amounts of reasonable additions to the reserve each year, but such deferrals are justified under § 166(c) only when the Commissioner is satisfied that such reserve additions are reasonable. A taxpayer attacking the Commissioner’s determination that bad debt reserve additions are excessive has the burden of establishing that the additions were reasonable and that the denial of the additions was an abuse of discretion. Business Development Corporation of North Carolina v. United States, 4 Cir., 428 F.2d 451, 453, cert. denied 400 U.S. 957, 91 S.Ct. 355, 27 L.Ed.2d 265, and United States v. Haskel Engineering & Supply Co., 9 Cir., 380 F.2d 786, 789. By electing to use the bad debt reserve method the taxpayer subjects himself to the reasonable discretion of the Commissioner. American State Bank v. United States, 7 Cir., 279 F.2d 585, 589, cert. denied 364 U.S. 881, 81 S.Ct. 170, 5 L.Ed.2d 103. Before discussing Rev.Rul. 65-92, we note that revenue rulings do not have the force and effect of law but are for the information and guidance of taxpayers, IRS officials, and others concerned, and though entitled to consideration, they are accorded less weight than regulations. United States v. Eddy Brothers, Inc., 8 Cir., 291 F.2d 529, 531.

Sections 3, 4, and 5 of Rev.Rul. 65-92 establish a uniform reserve ratio and allow additions to the reserve until the reserve “equals 2.4% of loans outstanding at the close of the taxable year.” Section 6 reads:

“Notwithstanding the provisions of sections 4 and 5 of this ruling, the addition to the reserve that a bank will be permitted in a taxable year through the use of the uniform reserve ratio shall not exceed an amount equal to 0.8 percent of the loans outstanding at the end of the taxable year, or an amount sufficient to bring the reserve to 0.8 percent of loans outstanding at the end of the taxable year, whichever amount is greater.”

For the years in question the taxpayer’s bad debt reserve, stated in percentages of loans outstanding at the end of the taxable year, was: 1965 — 2.9%; 1966 — 3.0%; 1967 — 2.9%. The Commissioner limited the allowable deductions to .8% of the outstanding loans. The taxpayer claims the right to make a reserve addition in the amount of the actual bad debt loss for each year which varied from 1.0% to 1.3%.

The taxpayer contends that a bank which has a 1.0% or greater bad debt loss and which is allowed only a .8% addition to the reserve must inevitably suffer a diminution of the reserve. The Commissioner points out that § 6 of Rev.Rul. 65-92 permits an annual reserve addition of an amount sufficient to bring the reserve to .8% of the outstanding loans. This provides a floor of .8% for the reserve.

Taxpayer urges that this method discriminates against high loss banks and favors commercial banks whose annual loss runs about .2% by permitting the commercial banks to have a 2.4% reserve whereas the high risk bank, in a succession of years when the loss factor is greater than .8% may find itself with a total reserve of only .8%. This result is possible. However, the record shows no invidious discrimination in fact, and we are not concerned with the appropriateness of Rev.Rul. 65-92 but rather with the validity of the specific actions of the Commissioner in disallowing the claimed additions to the reserve.

The taxpayer is critical of the statement of the Tax Court that the inquiry is “whether at the end of the year the reserve is sufficient to absorb the bad debts anticipated during the subsequent taxable year.” The applicability of such a principle to the taxpayer which has 42% of the dollar amount of its loans for five-year periods is difficult to justify. Indeed, in his brief the Commissioner takes an ambivalent position. At one point he says that the annual adjustment of the reserve balance must “correctly reflect that portion of the debt reasonably estimated to become worthless in subsequent years.” At another point he says that the question is whether the balance is “sufficient to absorb the bad debts that are anticipated during the subsequent taxable year.” In Nash v. United States, 398 U.S. 1, 2, 90 S.Ct. 1550, 26 L.Ed.2d 1, the Supreme Court refers to the reserve method of accounting permitted by § 166(c) and says that the year-end adjustment equals that portion of the receivables “estimated to become worthless in subsequent years.” The use of the plural rejects the concept that the adjustment takes into consideration only the next taxable year.

We are not here concerned with the wisdom or propriety of § 6, Rev.Rul. 65-92. Our question is whether the Commissioner abused his discretion in determining that the additions claimed by the taxpayer were not reasonable. The taxpayer says that the Commissioner’s interpretation of Rev.Rul. 65-92 flies directly in the face of Treasury Regulation § 1.166-4(b) which says:

“What constitutes a reasonable addition to a reserve for bad debts shall be determined in the light of the facts existing at the close of the taxable year of the proposed addition. The reasonableness of the addition will vary as between classes of business and with conditions of business prosperity. It will depend primarily upon the total amount of debts outstanding as of the close of the taxable year, including those arising currently as well as those arising in prior' taxable years, and the total amount of the existing reserve.”

This listing of factors to be considered in determining reasonableness is helpful but not determinative of the validity of the Commissioner’s action. The taxpayer is entitled under the statute to a reserve for bad debts and may make reasonable additions thereto. Rev.Rul. 65-92 permits a reserve of 2.-4% of the net outstanding loans. During the years in question the percentage of the taxpayer’s bad debt reserve to net loans outstanding varied from 2.9% to 3.0%, thus exceeding the 2.4% prescribed by Rev.Rul. 65-92. We find nothing in the record to establish that the taxpayer needed a greater reserve. It may be that in the future the Treas. Reg. 1.166-4(b) factors will justify a higher reserve but we are concerned with the record presented, not with speculations over the future.

We take § 6, Rev.Rul. 65-92, as advisory only. The issue is whether, in using the formula which it recognizes, the Commissioner wrongfully held that the additions to the reserve were unreasonable and so abused his discretion. See Patterson v. Pizitz, Inc., 5 Cir., 353 F.2d 267, 268-269, cert. denied 383 U.S. 910, 86 S.Ct. 895, 15 L.Ed.2d 666; Krim-Ko Corp., 16 T.C. 31, 37. On the record presented we find no abuse of discretion. If future developments result in an inadequacy of the uniform reserve provisions of §§ 3, 4, 5, and 6, Rev.Rul. 65-92, to provide the reasonable addition to a reserve for bad debts permitted by § 166(c) of the 1954 Code, the taxpayer has the alternative of using the probable experience method outlined in § 7, Rev.Rul. 65-92.

Affirmed.


author: LEWIS, Chief Judge. BREITENSTEIN, Circuit Judge

text:
    Matthew JOHNSON, Petitioner-Appellee, v. Wayne K. PATTERSON, Warden, Colorado State Penitentiary, Respondent-Appellant.
    No. 72-1136.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Sept. 19, 1972.
    Decided March 22, 1973.
    Tennyson W. Grebenar, Asst. Atty. Gen., Denver, Colo. (Duke W. Dunbar, Atty. Gen., John P. Moore; Deputy Atty. Gen., Denver, Colo., with' him on the brief), for respondent-appellant.
    Earl S. Wylder, Denver, Colo., for petitioner-appellee.
    Before LEWIS, Chief Judge, and MURRAH and BREITENSTEIN, Circuit Judges.
   LEWIS, Chief Judge.

This is an appeal from judgment of the United States District Court for the District of Colorado granting Matthew Johnson’s petition for a writ of habeas corpus. Johnson was tried and convicted for rape in the state of Colorado and the judgment of conviction was affirmed on direct appeal. Johnson v. Colorado, Colo., 172 Colo. 406, 473 P.2d 974. The sole issue presented here, which was given full consideration on direct appeal, is whether the prosecution’s questions during cross-examination and comments during closing argument infringed upon Johnson’s right to remain silent under the fifth amendment.

During trial Johnson testified that he had intercourse with the complainant but with her consent and at her invitation. He testified he caught her attempting to take his car and she offered to have intercourse with him if he WQuld not call the police. During cross-examination of Johnson, the following questions and answers took place:

Q. Now, Mr. Johnson, you didn’t tell the police this, did you?
A. No, sir.
Q. The first time then that anyone has heard this is here today in court, is that correct?
A. No, sir. I told Mr. Hellerstein when he came out to see me in the County Jail.
Q. Mr. Hellerstein, your attorney, is that correct?
A. Yes, sir.

During closing argument the prosecution again referred to Johnson’s failure to tell the police his story.

And isn’t it interesting that this is the first time that he has decided to tell the truth other than, of course, he testified that he told his lawyer, and didn’t bother to tell the police.

Johnson maintains that an accused’s silence at the time of arrest cannot be the subject of comment at trial, relying principally on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; United States v. Arnold, 10 Cir., 425 F.2d 204; United States v. Nolan, 10 Cir., 416 F.2d 588, cert. denied, 396 U.S. 912, 90 S.Ct. 227, 24 L.Ed.2d 187. The Colorado Supreme Court distinguished these authorities and held:

The cross-examination and the brief comment by the district attorney in his rebuttal closing argument does no more than approach the danger point of potential prejudice involving the defendant’s Fifth Amendment rights. In our view, this cross-examination and the brief comment by the district attorney does not constitute reversible error. 473 P.2d at 977.

The appellant argues that the Colorado Supreme Court was correct in distinguishing Nolan and Arnold and further argues that the recent case of Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, is dispositive and Nolan and Arnold should be overruled insofar as they are inconsistent with Harris. The federal district court relied on Nolan and Arnold in holding Johnson’s constitutional rights had been violated. Moreover, the court considered Harris and found it not controlling. The reasoning of the district court is sound and we affirm the order granting petitioner’s writ of habeas corpus.

Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, held that it was reversible error for the prosecution or the court to comment on an accused’s failure to take the stand and testify in his own behalf. To allow this would impose a penalty on the exercise of a constitutional right. The Supreme Court further refined this principle in Miranda. The Court stated therein:

In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. 384 U.S. at 468, n. 37, 86 S.Ct. at 1625.

In both Nolan and Arnold comment was made that the defendant had exercised his right to remain silent after arrest and that this silence was tantamount to guilt. This was considered plain error in both cases. The appellant maintains that the instant case is distinguishable as no direct comment was made that Johnson exercised his right to remain silent or that his silence was an indication of guilt. This distinction is not well taken. A penalty is levied on the exercise of his constitutional right in any event, and the jury may as easily draw prejudicial inferences. See United States v. Nielsen, 7 Cir., 392 F.2d 849. Nor can we agree with the Colorado Supreme Court that the comments do not constitute reversible error because they “no more than approach the danger point of potential prejudice.” 473 P.2d at 977. We said in United States v. Arnold, supra, that we “decline to weigh comparative prejudice when the calibrator can only be the quantity of comment violative of constitutional rights.” 425 F.2d at 206.

Appellant argues that the comment on Johnson's failure to tell his story to the police was used to impeach his testimony and therefore falls within the ambit of Harris v. New York, supra. We do not so read Harris. But see United States v. Ramirez, 5 Cir., 441 F.2d 950, cert. denied, 404 U.S. 869, 92 S.Ct. 91, 30 L.Ed.2d 113. Under Harris the prosecution can use prior inconsistent statements to impeach testimony of a defendant who has taken the stand, even if those prior inconsistent statements were taken in contravention of the safeguards announced in Miranda. The underlying rationale of Harris is that the fifth amendment rights of an accused cannot be used to sanction perjury. A defendant cannot be allowed to testify without fear of impeachment from prior inconsistent statements as this would impair enforcement of a witness’ obligation to speak truthfully. When a defendant makes a statement at trial which is inconsistent with an earlier statement his credibility is clearly in question. This rationale does not follow with silence at the time of arrest. As the trial court properly found in the instant case, silence at the time of arrest is not an inconsistent or contradictory statement. Silence at the time of arrest is simply the exercise of a constitutional right that all persons must enjoy without qualification. See Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586. It would indeed be irregular and anomalous to warn an accused that he has the right to remain silent, that if he says anything it may be used against him, however, if he does remain silent that too may be used against him. See McCarthy v. United States, 6 Cir., 25 F.2d 298; United States v. Brinson, 6 Cir., 411 F.2d 1057; Fowle v. United States, 9 Cir., 410 F.2d 48. This would be the practical effect of allowing the prosecution to use at trial the fact that an accused remained silent, clearly making the assertion of the constitutional right costly. See Griffin v. California, supra.

The judgment and order of the trial court granting petitioner’s writ of habeas corpus is affirmed.

BREITENSTEIN, Circuit Judge

(dissenting) .

Believing that the majority opinion throws yet another roadblock to impede the search for truth in the administration of criminal justice, I respectfully dissent. The majority permits a defendant, who by testifying in his own behalf has cast aside the cloak of immunity, to put that coat back on when the cross-examination becomes discomfiting.

This is a state prisoner habeas corpus in which the district court granted relief. Defendant, who was charged with rape, testified in his own behalf and said that the intercourse was consensual. Orr cross-examination, and without objection, he said that before trial he had mentioned the consent defense only to his lawyer. In closing argument, and again without objection, the prosecutor referred to the pre-trial silence.

The majority does not discuss what to me is the crux of the controversy. We have here a conflict between the Fifth Amendment privilege against self-incrimination and the principle that a witness shall testify truthfully. By emphasizing the Fifth Amendment right and glossing over the policy which demands truth of a witness and which regards adversary proceedings as a search for the truth, the majority loses sight of the balance which must be maintained. The effect of the majority decision is to suppress a fact which reasonably bears on credibility and, hence, on truth. As said in Tate v. United States, 109 U.S.App.D.C. 13, 283 F.2d 377, 381, “the theory that judicial suppression of truth has a beneficial effect on the administration of justice is unproved and perhaps unprovable.”

The thrust of the majority opinion is that under the Fifth Amendment a defendant has the right to remain silent. I agree. The difficulty here is that the defendant took the stand and thereby waived his constitutional right. Under the majority opinion there can be a partial waiver of a constitutional right, a premise which I decline to accept.

The Supreme Court has said, and we have said, that by taking the stand a defendant subjects himself to cross-examination on matters reasonably related to the subject matter of his direct examination. McGautha v. California, 402 U.S. 183, 215, 91 S.Ct. 1454, 28 L.Ed.2d 711; Sinclair v. Turner, 10 Cir., 447 F.2d 1158, 1165, cert. denied 405 U.S. 1048, 92 S.Ct. 1329, 31 L.Ed.2d 590. The majority says nothing about this principle but seemingly relies on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, and Tenth Circuit decisions to be mentioned later. The applicability of Miranda is destroyed by Harris v. New York, 401 U.S. 222, 226, 91 S.Ct. 643, 28 L.Ed.2d 1, which says that Miranda is not a license for the use of perjury in defense. Griffin is not pertinent because in that case the defendant did not take the stand.

The case at bar differs from Harris in that there the impeachment was by prior inconsistent statements. Here we have silence. The majority opinion ignores Raffel v. United States, 271 U.S. 494, 497, 46 S.Ct. 566, 568, 70 L.Ed. 1054, which permitted cross-examination on pre-trial silence and said that “having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.” Raffel was reexamined, but not overruled, in Grunewald v. United States, 353 U.S. 391, 418, 424, 77 S.Ct. 963, 1 L.Ed.2d 931. In holding that in the circumstances of Grünewald, cross-examination over objection on a pre-trial claim of the Fifth Amendment was improper, the Court did not base its decision on any constitutional right but instead said that it was acting under its supervisory power over the administration of criminal justice. 353 U.S. at 424, 77 S.Ct. 963.

In the case before us there was no contemporaneous objection either to the cross-examination or to the remark in argument. I say that, in the circumstances presented, to permit the defendant to rearm himself with the constitutional shield is to convert a criminal trial from a search for the truth into a game to be won by the cleverest player. Cf. Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 98 L.Ed. 503.

The action of the Supreme Court in placing its Grünewald decision on its supervisory power is significant. Federal courts have no supervisory power over the administration of criminal justice in state courts. Federal habeas corpus relief is available to a state prisoner when he has been deprived of a right secured to him by the United States Constitution. I do not know what federal constitutional right has been denied the defendant. The only possible reliance can be on the immunity from self-incrimination and that must be based on the acceptance of the idea of a partial waiver. I know of no decision of the Supreme Court which permits a partial waiver of a constitutional right. The approval of such an idea will open a veritable Pandora’s box.

The majority mentions three Tenth Circuit decisions. The first is United States v. Nolan, 10 Cir., 416 F.2d 588, 593-594, cert. denied 396 U.S. 912, 90 S.Ct. 227, 24 L.Ed.2d 187. The facts in Nolan are analogous to those in the case at bar except that Nolan was a federal prosecution and here we have a state prosecution. So far as Nolan is concerned it is enough to say that, for the reasons stated in this dissent, I would consign the case to oblivion. The majority quotes from United States v. Arnold, 10 Cir., 425 F.2d 204, 205-206, to the effect that the court will not weigh comparative prejudice. Be that as it may, Arnold is not in point because there the defendant did not take the stand. The exculpatory evidence was introduced through others. United States v. Julian, 10 Cir., 450 F.2d 575, 578-579, permitted cross-examination on silence. The majority says that Julian is inapposite to the instant case because the comment there related to the competence of the defendant. Competence is a mental state; so also is credibility. I am unable to understand why, if testimony as to silence is admissible on competence, it is not also admissible on credibility.

My position is that when a defendant testifies he may be impeached like any other witness. The use of pre-trial silence for impeachment depends on whether, in the circumstances presented, there is such inconsistency between silence and testimony as to reasonably permit the use of silence for credibility impeachment. In the case at bar the trial court did not exercise the discretion which it has in this area because there was no contemporaneous objection. I believe that the cross-examination was proper for impeachment purposes because common sense teaches that on arrest for forcible rape an accused will claim consent if such be the fact.

Beyond question, a person has the right to remain silent when arrested, and when accused of a crime. That silence may not be used against him to establish the commission of a crime. The difficulty here is that the defendant did not maintain the silence. Instead, he took the stand in his own defense. When he did so, he subjected himself to pertinent cross-examination. The situation was of his making, not the making of the prosecution. The admission of pre-trial silence was not per se inculpatory.

In considering the case at bar the Colorado Supreme Court recognized the competition between the protection against self-incrimination and the mandate that a witness shall testify truthfully and held that there was no reversible error. Johnson v. People, Colo., 473 P.2d 974, 977. Nothing in the federal Constitution requires a contrary holding in this habeas proceeding.

I would reverse and remand the case with directions to dismiss the habeas petition.

      . Harris held that statements taken during custodial interrogation in contravention of rights delineated in Miranda may be used at trial for the limited purpose of impeachment if said statements are inconsistent with current testimony of the accused and they satisfy legal standards of trustworthiness.

      . Appellant also argues that the instant ease is more in line with our recent decision of United States v. Julian, 10 Cir., 450 F.2d 575. Julian is inapposite to the instant case as the comment therein related to the competency of the defendant. We did not limit the rule of Nolan and Arnold but rather held it was not determinative under the peculiar circumstances of Julian.

      . The premise of Ramirez is that silence at time of arrest is an act inconsistent with the testimony given at trial. 441 F.2d 950, 954. We simply deny the validity of the premise.