author: WEBSTER, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Eugene Wesley HOWARD, Appellant.
    Nos. 73-1856, 73-1857.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 15, 1974.
    Decided Oct. 29, 1974.

      Robert G. Duncan, Duncan & Russell, Gladstone, Mo., for appellant.
    Wilbur H. Dillahunty, U. S. Atty., Little Rock, Ark., for appellee.
    Before GIBSON, Chief Judge, VO-GEL, Senior Circuit Judge, and WEBSTER, Circuit Judge.
   WEBSTER, Circuit Judge.

Eugene Wesley Howard was convicted on four counts of willfully and knowingly transferring and delivering counterfeit twenty-dollar Federal Reserve Notes, in violation of 18 U.S.C. § 473; on one count of knowingly possessing such counterfeit currency, in violation of 18 U.S.C. § 472; and on one count of unlawfully carrying a firearm during the commission of a federal felony, in violation of 18 U.S.C. § 924(c)(2). In this appeal he challenges the introduction of allegedly prejudicial evidence at trial as well as several of the trial court’s instructions to the jury. Having carefully reviewed the trial transcript and the arguments advanced on appeal, we affirm.

The Facts

Appellant Howard was introduced to the owner of the Mid-State Printing Co. by Michael Gocke, a former printer at the plant. Howard bought the plant in November, 1972, financing the purchase with money he borrowed from one Bill Carter, a self-proclaimed gambler and narcotics user with a long record of felony convictions. On January 18, 1973, while the building was allegedly being cleaned and prepared for printing, Howard guided Secret Service Agents Saitta and Howlett through the plant at their request. Howard agreed to notify the agents if he discovered any indications of counterfeiting at Mid-State, but he denied knowing Carter when the agents inquired about their possible acquaintance.

In early March of 1973, Carter, who was then on probation for violation of the Firearms Act, agreed to cooperate with the Secret Service and, while wearing an electronic taping device, approached Howard for the purpose of purchasing counterfeit currency from him. Carter had a series of such meetings with Howard and on at least two occasions bought a considerable quantity of counterfeit twenty-dollar Federal Reserve Notes from Howard. During one meeting, Carter was accompanied by Agent Saitta, who had adopted the undercover disguise of a prospective purchaser of additional counterfeit notes. Ultimately, Howard gave Saitta the key to a motel room where 12 counterfeit notes as well as 12 counterfeit Arkansas drivers’ licenses were hidden. After taking these samples supposedly for inspection purposes, Saitta agreed to purchase $200,000 worth of the counterfeit currency and 6,000 licenses. As planned, Howard delivered the money and licenses to Saitta at a shopping center parking lot, whereupon Howard was arrested as he was reaching for a loaded pistol in his belt.

Following his arrest, Howard was taken to the local Secret Service office where he agreed to accompany several agents to his mother’s house in Lonoke where additional money was hidden. The search of that house disclosed well over $400,000 worth of counterfeit twenty-dollar bills and approximately 6,000 counterfeit Arkansas drivers’ licenses. The following day, agents found trash barrels containing scraps of counterfeit money and burned printing plates after searching with a warrant the property near Howard’s office in North Little Rock. According to the testimony of one of Howard’s employees, he had hauled these trash barrels from the Mid-State plant upon Howard’s direction.

Howard was charged with four separate deliveries of counterfeit currency, two to Carter and two to Saitta. He was also charged with selling and possessing the counterfeit money hidden at his mother’s house and with unlawfully carrying a firearm during the delivery of the money at the parking lot.

Evidence of Other Crimes

Howard’s first assignment of error relates to the admission into evidence of testimony concerning the counterfeit Arkansas drivers’ licenses. Howard argues that he was not standing trial for any offense involving the licenses and that such evidence of other crimes improperly prejudiced his case.

While evidence of other criminal activity is generally inadmissible to show that the accused is an individual of bad character with a propensity to commit the crime charged, such evidence may be received for several narrowly defined and exceptional purposes, e. g., to show intent or motive. Umbaugh v. Hutto, 486 F.2d 904 (8th Cir. 1973), cert. denied, 416 U.S. 960, 94 S.Ct. 1978, 40 L.Ed.2d 311 (1974). Another such exception permits the introduction of evidence of other criminal activity to complete the story of the crime on trial by proving its immediate context or the “res gestae.” McCormick, Evidence 448 (2d ed. 1972). Thus, this Circuit has upheld the admission of such evidence where it is “part and parcel” of the crime charged. United States v. Cochran, 475 F.2d 1080, 1082 (8th Cir.), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973). See also United States v. Weatherford, 493 F.2d 248 (8th Cir. 1974).

The evidence in question here clearly fits this latter category. The record shows that Howard offered to sell to undercover agent Saitta the counterfeit drivers’ licenses together with the counterfeit currency; in both the motel room where samples of the counterfeit had been secreted and in Howard’s mother’s house where substantial quantities of counterfeit were hidden, drivers’ licenses were found in addition to the currency. Under these circumstances, we hold the evidence concerning the licenses to have been properly admitted. Moreover, Judge Henley’s instruction to the jury properly explained the use to which such evidence may be put. We find no error here.

Howard’s Volunteer Defense

When Howard took the stand at trial, his primary defense was that his entire course of conduct had been based upon his desire to cooperate with the government by locating and identifying the perpetrators of the counterfeiting scheme. He claimed that he adopted the role of “volunteer” soon after he led the Secret Service agents through the Mid-State plant and that he had “set up” a series of counterfeit deals in an effort to apprehend the “big people” involved in the operation. On appeal, he argues that as a result of his good motives, he lacked the requisite criminal intent for conviction. Nonetheless, it is certainly clear from Howard’s testimony that all of the acts for which he was convicted were done intentionally, and we therefore reject Howard’s contentions.

“Noble motives and pure thoughts cannot bar the conviction of one who admits intentional action which violates the proscriptions of a statute declaring that action criminal * * *.” United States v. Ragsdale, 438 F.2d 21, 26 (5th Cir.), cert. denied, 403 U.S. 919, 91 S.Ct. 2231, 29 L.Ed.2d 696 (1971). This principle is supported by ample authority. See United States v. Mitchell, 463 F.2d 187, 191 (8th Cir. 1972), cert. denied, 410 U.S. 969, 93 S.Ct. 1449, 35 L.Ed.2d 705 (1973); United States v. Malinowski, 472 F.2d 850, 856 (3d Cir.), cert. denied, 411 U.S 970, 93 S.Ct. 2164, 36 L.Ed.2d 693 (1973); United States v. Owens, 415 F.2d 1308, 1315 (6th Cir. 1969), cert. denied, 397 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.2d 406 (1970).

Judge Henley’s instructions properly set forth the essential elements of the offenses charged and correctly reflected the standards against which the jury had to test Howard’s volunteer defense.

The Firearms Charge

Howard has raised a question of first impression in assigning error to Judge Henley’s charge to the jury concerning the offense defined by 18 U.S.C. § 924(c)(2). That statute provides in part that

[wjhoever * * * carries a firearm unlawfully during the commission of any felony for which he may be prosecuted in a court of the United States shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year nor more than ten years.

Howard’s challenge focuses on the meaning of the word “unlawfully,” as employed in the statute. Judge Henley instructed the jury that the word referred to that which is illegal under Arkansas law. He continued:

You are instructed that under the relevant Arkansas statute it is a misdemeanor for any person to wear or carry in any manner whatever as a weapon any pistol, provided that the Arkansas statute is not to be so construed as to prohibit any person from carrying such pistols as are used in the Army or Navy of the United States when carried uncovered and in the hand, and provided further that the statute is not to be construed as prohibiting the carrying or wearing of a pistol by a person while he is on a journey or on his own premises.

Howard contends that this instruction should have instead referred to that which is illegal under federal law. As a result, he argues, he was denied both due process of law and equal protection of the laws, for he was convicted of a crime not punishable under the laws of the United States.

We disagree. After extensive research into the legislative history of 18 U.S.C. § 924(c)(2), we conclude that “unlawfully” was intended to refer to the carrying of a gun which is prohibited by any law — be it a state law, a federal statute, or a municipal ordinance.

The purpose of the amendment to H. R. 17735, which ultimately became 18 U. S. C. § 924(c), was “to persuade the man who attempted to commit a federal felony to leave his gun at home.” 114 Cong.Rec., 90th Cong., 2d Sess. 22231 (1968). See also United States v. Melville, 309 F.Supp. 774, 777 (S.D.N.Y.1970). To effectuate this purpose, the statute creates a separate offense for the carrying of a gun during the commission of a federal felony and, at least in the case of second and subsequent violations, imposes a mandatory penalty that is consecutive to that assessed for the commission of the underlying federal felony. United States v. Sudduth, 457 F.2d 1198 (10th Cir. 1972); see United States v. Gerard, 491 F.2d 1300 (9th Cir. 1974). During the debates which took place prior to the law’s enactment, however, several Congressmen expressed concern that H.R. 17735, as it had been originally proposed, might impose such additional penalties upon policemen or licensed carriers of firearms who, while legally carrying such weapons, committed federal felonies. See 114 Cong.Rec., supra, at 21788-89, 21792, 22231, 22235, 22237. The word “unlawfully,” inserted following “carries,” was intended to obviate this possible problem.

Congress’ concern for policemen and licensees is indicative of its intention to strengthen the deterrent effect of the statute while exempting from its reach not only those who might legally carry guns under federal law, but also those who might do so under the authority of state or local laws. Thus, we infer that the meaning of “unlawfully” is broad enough to encompass that which is in violation of any firearms law.

Applying these conclusions to the instant case, we find Judge Henley’s instruction to have been proper. While he might have given the jury additional instructions on federal or local firearms laws, he was not bound to do so. Moreover, unlike in United States v. Ramirez, 482 F.2d 807 (2d Cir.), cert. denied sub nom. Gomez v. United States, 414 U.S. 1070, 94 S.Ct. 581, 38 L.Ed.2d 475 (1973), there are no evidentiary problems in this case. The Arkansas statute referred to in Judge Henley’s instruction is broad enough to encompass the carrying of a firearm by any individual in any manner, with certain narrowly defined exceptions. The undisputed evidence that Howard was carrying a pistol concealed in his belt during the delivery of the counterfeit to Agent Saitta was sufficient to support his conviction on the firearms charge.

In so holding, we reject Howard’s contention that this construction of 18 U.S.C. § 924(c)(2) unconstitutionally permits a federal court to convict him for violating a state statute. While the statute requires that the carrying of the firearm must itself be unlawful, United States v. Ramirez, supra, 482 F.2d at 815, a violation of a state firearms law (or any other firearms law) is only one element of the offense defined by 18 U.S.C. § 924(c)(2). The other essential element is the concurrent commission of a federal felony, which — as Congress intended — brings the offense within the jurisdiction of the federal courts. See United States v. Melville, supra, 309 F.Supp. at 777-778. See also 114 Cong.Rec., supra, at 22231 et seq.

Prejudicial Evidence

Howard’s final assignment of error calls to our attention certain testimony, exhibits, remarks by the prosecution and comments by the trial judge which, he contends, were cumulatively so prejudicial that a new trial is required. Our examination of these matters leads us to a different conclusion.

Only one of these challenges merits detailed discussion. Howard argues that tapes of his conversations with Bill Carter, recorded by a device secretly worn by Carter and introduced into evidence by the government lacked a proper foundation, were barely audible, and contained obscene language which unduly prejudiced the jury. The record shows that the prosecution laid a proper foundation for the admission of the tapes through the testimony of Bill Carter and of Agents Saitta and Howlett. While counsel for the defense objected to the introduction of the tapes as illegally obtained evidence, no objections concerning their foundation or authenticity were interposed.

Because parts of the recordings were barely audible, only certain portions of the tapes were played before the jury. Howard alleges that this selective playing of the tapes by the prosecution constitutes prejudical error. We disagree. The defense counsel was advised that he could play any tapes not played by the prosecution. Moreover, as we stated on a previous occasion,

* * * the fact that certain portions of a tape recording are inaudible does not necessarily render the entire tape inadmissible. That question is addressed to the sound discretion of the trial court.
United States v. Skillman, 442 F.2d 542, 552 n. 8 (8th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971).

We find no abuse of that discretion here. See also United States v. Jacobs, 451 F.2d 530, 541-542 (5th Cir. 1971), cert. denied, 405 U.S. 955, 92 S.Ct. 1170, 31 L.Ed.2d 231 (1972).

The balance of the claimed errors, including the profanities on the tapes, the remarks of the prosecutor and those of the trial judge, do not rise to the level of reversible error, even when considered on a cumulative basis.

Affirmed.

      . The United States District Court for the Eastern District of Arkansas, Judge J. Smith Henley.

      . Soon after the drivers’ licenses were introduced, Judge Henley cautioned the jury as follows:
      The Court tells you now, of course, that the defendant is not on trial for having any counterfeit driver’s licenses, whether it is one or 6,000, or any other number, and you are not to consider this as evidence of any separate offense for which you might convict him. Now, you may, of course, consider this testimony as a part of the totality of the circumstances and for the purpose of shedding light on the charges with which the defendant is being tried here. You may consider that seizure or the presence of the driver’s licenses to the extent that it sheds light on the intent or the purpose with which the defendant did any acts with which he is charged in this case. But, again, the Court admonishes you that lie is not being charged for possession or any other offense in connection with the driver’s licenses themselves.

      . Judge Henley stated in part:
      * * * [I]f y0U find from the evidence beyond a reasonable doubt that the defendant knowingly possessed money that he knew was counterfeit, and that he possessed it with ‘intent to defraud,’ as that term has been defined to you, or that he wilfully delivered counterfeit money to some other person or persons, knowing that it was counterfeit, and with the intent that such other person or persons pass or use the counterfeit money as genuine, then you may find the defendant guilty on one or more counts of the indictment, even though you may believe that in his actions the defendant was motivated ultimately by a desire to expose the criminal activities of others and bring them to justice.

      . Judge Henley’s instruction apparently relied on Ark.Stat.Ann. § 41-4501 (Supp. 1973), which provides:
      Any person who shall wear or carry in any manner whatever, as a weapon, any dirk or sword or spear in a cane, brass or metal knucks, razor, blackjack, billie or sap, ice jñck, or any pistol of any kind whatever, shall be guilty of a misdemean- or. Provided, nothing in this act [§§ 41-4501 — 41-4506] shall be so construed as to prohibit any person from carrying such pistols as are used in the army or navy of the United States when carried uncovered and in the hand, provided, officers whose duties require them to make arrests, or to keep and guard prisoners, together with persons summoned by such officers to aid them in the discharge of such duties, while actually engaged in such duties, are exempt from the provisions _ of this act. Provided further, nothing in this act shall be so construed as to prohibit any person from carrying any weapon when upon a journey or upon his premises.

      . The issue is material since Howard, who was sentenced to nine years imprisonment for the counterfeiting offenses, was given an additional and consecutive one-year sentence for the firearms conviction.

      . One court, the United States Court of Appeals for the Tenth Circuit, recognized the problem presented by the question raised here but declined to resolve it. United States v. Sudduth, 457 F.2d 1198, 1202 (10th Cir. 1972).

      . 18 U.S.C. § 924(e) in its entirety reads: (c) Whoever — ■
      (1) uses a firearm to commit any felony for which he may be prosecuted in a court of the United States, or
      (2) carries a firearm unlawfully during the commission of any felony for which he may be prosecuted in a court of the United States.
      shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less that one- year nor more than ten years. In the case of his second or subsequent conviction under .this subsection, such person shall be sentenced to a term of imprisonment for not less than two nor more than twenty-five years and, notwithstanding any other provision of law, the court shall not suspend the sentence in the case of a second or subsequent conviction of such person or give him a probationary sentence, nor shall the term of imprisonment imposed under this subsection run concurrently with any term of imprisonment imposed for the commission of such felony.

      . Congress rejected a proposed amendment which would have deleted the word “unlawfully.” 114 Cong.Rec., supra, at 22236, 22245. See also United States v. Ramirez, 482 F.2d 807, 814 (2d Cir.), cert. denied sub nom. Gomez v. United States, 414 U.S. 1070, 94 S.Ct. 581, 38 L.Ed.2d 475 (1973).

      . Under federal law, it is illegal for any person who has been convicted of a felony, dishonorably discharged from the Armed Forces, or adjudged mentally incompetent, or who has renounced his citizenship or is an alien unlawfully in the United States to possess a firearm. 18 U.S.C. Appendix § 1202. 26 U.S.C. § 5861 et seq. defines additional circumstances under which federal law pro- ’ Mbits the possession of firearms. It is clear that Congress did not intend to limit the meaning of the word “unlawfully” in 18 U. S.C. § 924(c) to the prohibitions already expressed in such federal statutes.

      . In Ramirez, supra, the Court of Appeals held that the defendant’s motion for a judgment of acquittal should have been granted since the government had failed to introduce any evidence showing that the defendant’s possession of the firearm in question liad itself been unlawful. 482 F.2d at 814.

      . See footnote 4 supra.

      . Under the Arkansas statute in question, Ark.Stat.Ann. § 41-4501 (Supp.1973), where there is undisputed evidence that the defendant carried the pistol in a concealed fashion, the government need not prove that the pistol was not such as used in the United States army or navy. See Blacknall v. State, 90 Ark. 570, 119 S.W. 1119 (1909).

      . Electronic transmittals or recordings made with the consent of one of the parties to the conversation do not violate the Fourth Amendment. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971).

      . See Annot., 58 A.E.R.2d 1024, at 1040 § 8 (1958).


source: Caselaw Access Project

author: SPRECHER, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. THREE WINCHESTER 30-30 CALIBER LEVER ACTION CARBINES, etc., Defendant-Appellant, and Edgar Allen Tucker, Intervening Defendant-Appellant.
    No. 73-2088.
    United. States Court of Appeals, Seventh Circuit.
    Argued Sept. 19, 1974.
    Decided Oct. 31, 1974.

      Raymond H. Thoenig, Wisconsin Indian Legal Services, Madison, Wis., for defendant-appellant.
    William J. Mulligan, U. S. Atty. and John A. Nelson, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff-appellee.
    Before SPRECHER and TONE, Circuit Judges, and PERRY, Senior District Judge.

       Senior District Judge Joseph Sam Perry of the Northern District of Illinois is sitting by designation.

   SPRECHER, Circuit Judge.

The United States brought this action in accordance with 26 U.S.C. § 7401 seeking to have three Winchester rifles condemned and forfeited pursuant to the provisions of 18 U.S.C. § 924(d). As a basis for this forfeiture action the government relies on a violation of 18 U.S. C. App. § 1202(a)(1), which makes it illegal for a convicted felon to possess any firearm. Jurisdiction is based on 28 U.S.C. § 1345.

I

The essential facts of this case were established by stipulation. The defendant is the same individual who had been convicted of a felony in municipal court in Milwaukee, Wisconsin on March 25, 1954. The felony was the crime of carnal knowledge and abuse. On April 7, 1970, agents of the Commissioner of the Internal Revenue Service seized from the defendant’s residence in Milwaukee three Winchester 30-30 Caliber lever carbines, which were at that time owned by the defendant. Thereafter this forfeiture action was commenced. The defendant is a member of the Menominee Indian Tribe who used the weapons for hunting in Menominee County, a former Menominee Indian reservation.

The defendant appeals from the order of the district judge condemning as forfeited to the United States the three Winchester rifles, asserting two grounds for reversal: First, that there was no evidence from which the district judge could conclude that the seized firearms were involved in interstate commerce. Second, because of his status as an Indian and certain rights granted by-treaty to the Menominee Indians that the combined effect of 18 U.S.C. App. § 1202(a)(1) and 18 U.S.C. § 924(d) are not applicable to him. We see no merit in either contention and accordingly affirm the order of the district court.

II

18 U.S.C. § 924(d) provides that any firearm involved in a violation of a criminal law of the United States is subject to seizure and forfeiture. The criminal offense upon which the government has based its action is 18 U.S.C. App. § 1202(a)(1), which prohibits a convicted felon from “reeeiv[ing], possess[ing], or transporting] in commerce or affecting commerce . . . any firearm.” The defendant argues that there is no basis in the record upon which the district judge could ascertain that the rifles involved here moved in commerce.

The record reveals that written in hand on the bottom of the typed stipulations submitted on behalf of the government and defendant is the following:

The three Winchester rifles were manufactured by the Winchester Western Corporation in New Haven, Connecticut, and were purchased by the claimant in December of 1969 and January of 1970, in Milwaukee, Wisconsin.

Next to this paragraph is the handwritten entry “Added per stipulation — TSJ.” At oral argument counsel for the government informed this court that TSJ were the initials of the district judge’s law clerk.

Also part of the record on this appeal is a letter from assistant United States Attorney, David J. Cannon to Judge Myron L. Gordon setting forth the above added stipulation, and representing that this addition was made by agreement of the parties. The letter bears a designation of “cc: Attorney John A. Udovc” who was defendant’s trial counsel. At oral argument defendant’s counsel on appeal told the court that “[trial counsel] informed me that further stipulation was not made ... he informed me later that he did receive a copy of the letter.”

It is, of course, generally true that a stipulation is an agreement between the parties, and that there must be mutual assent by the parties. Winchester Drive-In Theater, Inc. v. Twentieth Century-Fox Film Co., 232 F.Supp. 556 (N.D.Cal.1964), rev’d on other grounds, 351 F.2d 925 (9th Cir. 1965), cert. denied. 382 U.S. 1011, 86 S.Ct. 620, 15 L.Ed.2d 526 (1966); Holland Banking Co. v. Continental National Bank, 9 F.Supp. 988 (W.D.Mo.1934). Here we have a case where it is admitted by defendant’s attorney that trial counsel did in fact receive a copy of the letter containing the added stipulation which was sent to the trial judge. The defendant did not at that time object or inform the trial court that no stipulation had been made, and now on appeal claims that the trial judge should not have considered the stipulation.

The failure to object to the introduction of evidence at trial waives most objections. United States v. Young, 471 F.2d 109 (7th Cir. 1972, cert. denied, 412 U.S. 929, 93 S.Ct. 2755, 37 L.Ed.2d 156 (1973); United States v. Richman, 369 F.2d 465 (7th Cir. 1966); United States v. Doran, 299 F.2d 511 (7th Cir.), cert. denied, 370 U.S. 925, 82 S.Ct. 1563, 8 L.Ed.2d 504 (1962). In. this case timely objection on the part of defendant’s counsel as to the form of the stipulation would have allowed the government to correct its technical error in not obtaining defendant’s signature on the amended stipulation.

We cannot see how requiring trial counsel to object to a representation made to a trial judge that a stipulation of a material fact has been entered into, when it is claimed that it has not, is burdensome. See generally Bullock v. Northern Insurance Co., 331 F.2d 431 (10th Cir. 1964). Any other rule would be tantamount to allowing defendant’s counsel to entrap the government in an error which could have been easily rectified and of which defendant’s counsel was well aware.

In this ease there is no indication that defendant’s counsel raised the issue before Judge Gordon and we believe it was proper for him to consider the added stipulation. We therefore conclude that there is a sufficient basis in the record to find that the firearms in question did move in interstate commerce.

Ill

The second question is whether the defendant’s status as a Menominee Indian exempts him from the combined effect of 18 U.S.C. App. § 1202(a)(1), making it a crime for a convicted felon to receive or possess a firearm, and 18 U.S.C. § 924(d), the federal forfeiture provisions. We conclude that it does not.

It is well settled that a federal statute of general applicability is applicable to the native American. FPC v. Tuscarora Indian Nation, 362 U.S. 99, 116, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960); Walks on Top v. United States, 372 F.2d 422, 425 (9th Cir.), cert. denied, 389 U.S. 879, 88 S.Ct. 109, 19 L.Ed.2d 170 (1967). This is so unless there exists some treaty right which exempts the Indian from the operation of the particular statutes in question. Squire v. Capoeman, 351 U.S. 1, 6, 76 S.Ct. 611, 614, 100 L.Ed. 883 (1956); Commissioner v. Walker, 326 F.2d 261, 263 (9th Cir. 1964).

The defendant relies on the 1854 Treaty of Wolf River between the United States and the Menominee Indians. 10 Stat. 1064 (May 12, 1854). The treaty provides that the Indians are to be ceded a tract of land lying upon the Wolf River “to be held as Indian lands are held . . . .’’Id. The Supreme Court has interpreted this language to mean that the Menominee Indians retain the right to hunt and fish upon the ceded land. Menominee Tribe of Indians v. United States, 391 U.S. 404, 406, 88 S.Ct. 1705,1707, 20 L.Ed.2d 697 (1968). It is the defendant’s position that incidental to this right to hunt is the right to possess firearms, and therefore he should be exempt from criminal liability under 18 U.S.C. App. § 1202(1)(a) and the forfeiture provisions of 18 U.S.C. § 924(d).

In Menominee Indian, the Supreme Court affirmed a Court of Claims judgment that the State of Wisconsin could not through the enforcement of its hunting and fishing regulations extinguish the hunting and fishing rights of the Menominee Indians. The Menominee Termination Act of 1954, 25 U.S.C. §§ 891-902 removed the Menominee reservation from federal control, and gave to the state general jurisdiction over the area. One of the reasons why the Court rejected the argument that the Termination Act gave authority to the State of Wisconsin to impose hunting and fishing regulations was because of the existence of Public Law 280, 18 U.S.C. § 1162. Public Law 280 provides that the State of Wisconsin should have jurisdiction over offenses committed by Indians, with the exception that the State is not authorized to deprive any Indian or tribe of any federal treaty right with “respect to hunting, trapping or fishing . . . .” Id. § 1162(b). Thus, it is clear that the Menominee Indian decision rests primarily on the fact that a state, contrary to federal law, was imposing restrictive regulations on the hunting and fishing rights as established by the treaty with the Menominee tribe. In the present case federal criminal laws are involved and nothing in Public Law 280 or any other law precludes their application to Menominee Indians.

Furthermore, the Menominee Indian Termination Act was not a law of general applicability, but rather one of special application to the Indians. It is not surprising that the Supreme Court limited its effect so it would not place Indian treaty rights regarding hunting and fishing at the whim of a state legislature. In this case we deal with federal laws of general applicability which have nothing to do with the regulation of any Menominee Indian treaty right. Any effect on the defendant’s right to hunt is merely incidental, and applicable only to him. The treaty rights allegedly abridged belong to the tribe as a whole and not to any one individual. Whitefoot v. United States, 155 Ct.Cl. 127, 293 F.2d 658, 663 (1961), cert. denied, 369 U.S. 818, 82 S.Ct. 629, 7 L.Ed.2d 784 (1962). Here the government has not made the exercise of a treaty right illegal, but rather the defendant’s own actions have limited him from participating fully in his tribe’s hunting rights. Thus, this case is unlike Menominee Indian and others where governmental regulations affected the entire tribe’s treaty rights.

The defendant further contends that his right to hunt and fish can only be limited by laws that are reasonable and necessary to serve a legitimate government interest, See Puyallup Tribe v. Department of Game, 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968) ; Tulee v. Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115 (1942), and that since the state conviction underlying his violation of 18 U.S.C. App. § 1202(a)(1) did not involve the use of firearms, it is not “reasonable or necessary” for the government to institute forfeiture proceedings against his three rifles pursuant to 18 U.S.C. § 924(d).

If there is a legitimate governmental interest in applying 18 U.S.C. App. § 1202(a)(1) and 18 U.S.C. § 924(d) to the defendant and his rifles, the treaty of Wolf River will not prevent its application. Puyallup, supra; Tulee, supra. In the instant case the Congress has made a reasonable determination that convicted felons should not be able to possess, receive or transport firearms. United States v. Craven, 478 F.2d 1329 (6th Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973); United States v. Weatherford, 471 F.2d 47 (7th Cir. 1972), cert. denied, 411 U.S. 972, 93 S.Ct. 2144, 36 L.Ed.2d 695 (1973); United States v. Donofrio, 450 F.2d 1054 (5th Cir. 1971); United States v. Synnes, 438 F.2d 764 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972). We can see no basis on which to hold that that decision is only reasonable and necessary when applied to non-Indian felons. Defendant’s Indian status does not remove him from the operation of the challenged statutes.

For the foregoing reasons the judgment of the district court is affirmed.

      . 26 U.S.C. § 7401 provides :
      No civil action for . . . forfeiture, shall be commenced unless the Secretary or his delegate authorizes or sanctions the proceedings and the Attorney General or his delegate directs that the action be commenced.

      . 18 U.S.C. § 924(d) provides :
      Any firearm or ammunition involved in or used or intended to be used in, any violation of the provisions of this chapter or any rule or regulation promulgated thereunder, or any violation of any other criminal law of the United States, shall be subject to seizure and forfeiture . . ..

      . 18 U.S.C. App. § 1202(a) provides:
      Any person who—
      (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, . . . and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

      . 28 U.S.C. § 1345 provides in part:
      [T]he district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States

      . Apparently at the district court level the defendant argued that 18 U.S.C. App. § 1202 was invalid as an “infringement of the second amendment’s protection of the right to bear arms, the first amendment’s prohibition of bills of attainder and ex post facto laws, and the fourteenth amendment’s due process clause.” These arguments were appropriately rejected. Cody v. United States, 460 F.2d 34 (8th Cir.), cert. denied, 409 U.S. 1010, 93 S.Ct. 454, 34 L.Ed.2d 303 (1972) ; United States v. Synnes, 438 F.2d 764 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972). These issues have not been raised on appeal.

      . Defendant argues that this letter to Judge Gordon is not properly before this court because it was not part of the original record in this case. We note that the letter to Judge Gordon was sent to this court from the clerk of the district court with instructions that it be included in the appeal record. Eed.R.App.P. 10(e) provides in part: “If anything material ... is omitted from the record by error or accident . . . the district court either before or after the record is transmitted to the court of appeals . . . may direct that the omission ... be corrected . . ..”

      . At oral argument the defendant argued that the stipulation did not indicate whether the movement in interstate commerce occurred after the effective date of 18 U.S.C. App. § 1202. No such proof is necessary. In United States v. Bass, 404 U.S. 336, 350, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), the Supreme Court said “the Government meets its burden . . . if it demonstrates that the firearm received has previously traveled in interstate commerce.” The Sixth Circuit has interpreted both Bass and the statute as requiring no proof that the firearms in question moved after the effective date of the Act. United States v. Day, 476 F.2d 562 (6th Cir. 1973). See also United States v. Walker, 489 F.2d 1353 (7th Cir. 1973), cert. denied, 415 U.S. 982, 94 S.Ct. 1574, 39 L.Ed.2d 879 (1974).

      . There is considerable authority for the proposition that a federal statute enacted subsequent to a treaty supercedes any provisions of the treaty that are inconsistent. Reid v. Covert, 354 U.S. 1, 18, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957). There is, however, authority on the other side holding that an intention to abrogate or modify a treaty is not to be lightly imputed to the Congress. Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 54 S.Ct. 361, 78 L.Ed. 695 (1934) ; Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903) ; Ward v. Race Horse, 163 U.S. 504, 511, 16 S.Ct. 1076, 41 L.Ed. 244 (1896).
      Neither plaintiff nor defendant have referred us to any legislative history of either 18 U.S.C. App. § 1202(a) (1) or 18 U.S.C. § 924(d) which indicates that Congress gave any special consideration to the status of Indian treaties when it passed either of these statutes (both of which passed subsequently to the Treaty of 1854 with the Menominee Indians). This being so we do not rely on either presumption in reaching our decision. Instead, we consider whether in fact any treaty right has been abrogated, the extent of any such abrogation, and finally the purpose to be served by the challenged congressional acts.


text:
    BOB LAYNE CONTRACTOR, INC., a corporation, Plaintiff-Appellant, v. Charles L. BARTEL et al., Defendants-Appellees.
    No. 73-1841.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 17, 1974.
    Decided Nov. 1, 1974.
    Alvin E. Meyer, Indianapolis, Ind., John O. Henry, Dayton, Ohio, for plaintiff-appellant.
    R. Stanley Lawton, Indianapolis, Ind., Frank E. Gilkison, Muncie, Ind., for defendants-appellees.
    Before SPRECHER and TONE, Circuit Judges, and PERRY, Senior District Judge.

       Senior District Judge Joseph Sam Perry of tl Northern District of Illinois is sitting by designation.

   SPRECHER, Circuit Judge.

This appeal tests the propriety of the entry of a summary judgment by the district court.

I

The plaintiff, Bob Layne Contractor, Inc., is an Indiana corporation engaged in the development of residential real estate and in the construction and sale of single-family residences thereon.

On May 4, 1960, Layne platted and recorded the plat of a subdivision known as “Layne Crest Addition,” an addition to the City of Muncie, Indiana, consisting of 207 lots on 50.07 acres. Recorded with the subdivision plat were “restrictions, conditions and limitations for Layne Crest Addition,” drafted and adopted by Layne, which restricted “each and every lot in said addition” to “residential purposes” with not more than “one single family dwelling” on any lot.. These restrictive covenants were “to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty-five (25) years from said date these covenants are recorded, after which time said covenants shall be extended automatically for successive periods of ten (10) years unless an instrument signed by a majority of the owners of the lots has been recorded, agreeing to change said covenants in whole or in part.”

Finally, “enforcement shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenant either to restrain violation or to recover damages.”

Approximately 135 lots improved with single family dwellings were sold to individual owners. During the mid-1960’s plans were developed for the construction of a four-lane freeway along the northern boundary of Layne Crest. Recognizing that the freeway would render approximately 49 lots at the north end of the subdivision more suitable for commercial than residential development, Layne brought a proceeding to vacate that part of the plat of Layne Crest Addition.

No reference was made in the vacation proceedings to the restrictive covenants ; none of the lot owners were named as parties to those proceedings; and no attempt was made to seek an agreement by a majority of the lot owners to nullify the restrictive covenants.

On March 23, 1967, a judgment was entered by the Delaware County, Indiana, Circuit Court vacating the northern portion of the plat. At about the same time Layne attempted but failed to obtain from the Muncie City Council the rezoning of the property for commercial use.

On January 16, 1968, the owners of eleven lots in Layne Crest brought on behalf of themselves and the other lot owners of Layne Crest a suit in the Delaware County Superior Court to enjoin the violation by Layne of the restrictive covenants. After a trial the court on May 25, 1971, awarded the lot owners an injunction prohibiting Layne’s violation of the restrictive covenants, finding that the covenants ran with the land, that they were not dissolved by Layne.’s vacation suit, and that they could be dissolved only by an agreement of the majority of owners or by legal action with notice to each owner.

While the injunction suit was pending, Layne in August, 1968, on his second attempt, procured rezoning of the northern part of Layne Crest by the Muncie City Council for commercial use and made some attempts to sell the northern part for development as a shopping center. Also on June 5, 1970, Layne brought this suit in the federal district court against the lot owners who were plaintiffs in the state court injunction suit and others, alleging antitrust violations and seeking damages and injunc-tive relief.

Layne and the antitrust defendants all filed motions for summary judgment. On July 12, 1973, the district court denied Layne’s motion and granted the defendants’ motions. Layne appealed.

Thereafter on October 4, 1973, the Court of Appeals of Indiana affirmed the injunctive relief granted to the lot owners, except modifying it to limit the duration of the injunction to the length of time provided for in the plat restrictions of Layne Crest Addition. Bob Layne Contractor, Inc. v. Buennagel, 301 N.E.2d 671 (Ind.App.1973). Under the injunction Layne is enjoined from “in

any manner using for commercial purposes or in any manner seeking to sell or develop for commercial purposes or use” the 49 northern lots.

II

Layne contends that summary judgment for the defendants was improper because the facts reveal that (1) Charles L. Bartel, the majority shareholder of Middletowne Corporation, which developed a single-family residential subdivision north of Layne Crest and who resided in that subdivision, had paid some money to oppose Layne’s rezoning attempts to the same attorney who later brought the injunction suit in the state court and (2) the manager of a Welles Stores, Inc. (owned by Miller-Wohl Co., Inc.), a unit in a Muncie shopping center, contributed $300 in 1967 to a fund to hire an attorney to resist the Layne rezoning.

Based upon the uncontroverted facts in the record before it, the district court made the following findings and conclusions, among others:

In April, 1967, plaintiff corporation caused a rezoning proceeding to be commenced in the Delaware-Muneie Metropolitan Plan Commission whereby it sought to have rezoned from residential to commercial certain of the land platted in Layne Crest but not yet developed by the building of residences thereon. This rezoning proceeding was opposed in the Plan Commission and the City Council by some 325 persons from Layne Crest and from other areas in northwest Muncie who called themselves the Northwest Citizens Association. All of the individual defendants were among the group of 325, the sole purpose of which was to remonstrate against the zoning proceeding. A number of persons residing in the area, including Welles, contributed to a fund, the purpose of which was to hire an attorney to resist the rezoning. Defendants, Miller-Wohl Co., Inc., Mr. Bartel or Middletowne Corporation, did not contribute to this fund. All of the fund was used for the purpose of opposing plaintiff’s rezoning proceedings. Jack Trachtman was the manager of the Welles store in 1967. Defendant, Bruce Beam, a resident of Layne Crest, requested of Mr. Trachtman, in the summer of 1967, a contribution by Welles to oppose the rezoning. Mr. Trachtman had authority to expend certain discretionary funds for various community purposes but this fund was depleted at the time. Mr. Tracht-man requested and received approval from Mr. Fortgang, president of the company, to expend the sum of $300.-00 and did deliver $300.00 to Mr. Beam, or defendant, John Jilbert, a Layne Crest resident who acted as treasurer for contributions to the group known as Northwest Citizens Association. Mr. Trachtman did not know the name of the group opposing the rezoning and contributed as a good will gesture to the community to persons who represented customers of his store. Trachtman did not know the nature of the rezoning. He was not asked and did not make any other contribution to oppose the rezoning. Mr. Trachtman had made previous requests to Mr. Fortgang for increases in his discretionary fund such as $500.00 for a scholarship. Mr. Trachtman operated the Welles store pretty much autonomously and his request for the $300.00 was automatically approved. The discretionary funds were at the disposal of the manager for promotion and enlargement of sales. The remonstrance was successful in that the rezoning was denied by the Muncie City Council in late 1967.
Thereafter in 1968, plaintiff corporation commenced another proceeding to rezone the same land in Layne Crest to a commercial use. This proceeding was also opposed by the group calling itself Northwest Citizens Association. In February, 1968, after this second proceeding was initiated by plaintiff corporation in the Plan Commission, but still pending, certain individuals (the individual defendants herein, except Bartel) who were residents of Layne Crest filed suit in their individual names in the Superior Court of Delaware County No. 2, in Cause No. 2S-68/119, to enjoin plaintiff corporation from violating certain single-family residence restrictive covenants recorded with the plat of Layne Crest, by selling or attempting to use the portion sought to be rezoned . . . for commercial purposes.
* * * * * *
Neither Mr. Bartel personally nor any officer, employee or agent of defendants, Welles Stores, Inc. (Mun-cie), Miller-Wohl Co., Inc., or Middletowne Corporation, influenced or attempted to influence the filing of Cause No. 2S-68/119 in the Delaware Superior Court No. 2, which resulted in Bob Layne Contractor, Inc. being enjoined from violating its own restrictive covenants by using for or selling for commercial use the portion of Layne Crest which was rezoned for commercial use. Mr. Bartel knows no one in the Welles Corporation and never discussed the legal action with anyone from Welles. None of the plaintiffs in the injunction suit (who, with the exception of Bartel, constitute the individual defendants here) considered any purported interest of Welles or Bartel in filing that suit. They were solely motivated to protect their own residential property by enforcing the residential restrictions in the addition.

Attempts by a group of citizens to influence a zoning board or the City Council with respect to the zoning of property in their vicinity are not impermissible. Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). The institution of litigation under the facts of this case to enforce restrictive covenants on the platted land is not forbidden by the antitrust laws of the United States.

We agree with the district court that there is no genuine issue as to any material fact and that the defendants were entitled to judgment as a matter of law.

Judgment affirmed.


author: BARRETT, Circuit Judge.

text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. UNIVERSITY OF NEW MEXICO, ALBUQUERQUE, NEW MEXICO, Defendant-Appellant.
    No. 74-1119.
    United States Court of Appeals, Tenth Circuit.
    Argued Sept. 13, 1974.
    Decided Oct. 30, 1974.

      Washington Marshall, Washington, D. C. (William A. Carey, Gen. Counsel; Joseph T. Eddins, Associate Gen. Counsel; Beatrice Rosenberg and Charles L. Reischel of Employment Opportunity
    Commission, Washington, D. C., on the brief), for plaintiff-appellee.
    John P. Salazar, Albuquerque, N. M. (William A. Sloan, Albuquerque, N. M., on the brief), for defendant-appellant.
    Before MURRAH, SETH and BARRETT, Circuit Judges.
   BARRETT, Circuit Judge.

This appeal is taken by the University of New Mexico (University) from an order entered by the United States District Court for the District of New Mexico, requiring it to comply with a subpoena duces tecum which had been served upon it by the Equal Employment Opportunity Commission (EEOC) during the EEOC’s investigation of a charge of unlawful employment discrimination filed against the University by Dr. Jovan Djuric, an associate professor in the University’s Department of Electrical Engineering and Computer Sciences.

On January 26, 1971, Dean Richard Dove of the University’s College of Engineering submitted a memorandum to Dr. Djuric notifying him that he was recommending to the President of the University that proceedings be undertaken to terminate Djuric’s services for, inter alia, want of fulfillment by Djuric of his contract obligations and failure to remedy the “serious negative attitude” which Dove had previously brought to Djuric’s attention per memo of October 9, 1970.

Dr. Djuric thereafter on November 1, 1971, filed a complaint of unlawful discrimination “in salary and promotion” from 1966 to “the present” against the University (naming, individually, President Heady, Vice President Travelstead, Professor Koschmann and Dean Dove), with the State of New Mexico Human Rights Commission. He alleged employment discrimination based upon his ancestry and national origin (Yugoslavian) and his religious creed. On May 14, 1973, the Human Rights Commission dismissed his complaint, specifically finding that Djuric, while represented by competent counsel, failed to “make out a case for relief.”

On January 21, 1972, Victor W. Bolie, Chairman of the Department of Electrical Engineering and Computer Sciences, wrote to Dr. Djuric regarding Djuric’s alleged continuing inadequacies as an Associate Professor within that Department. He set forth twelve specific statements or “causes” of lack of minimum professional standards in “performance and behavior” as a staff member during the 1971 fall semester. Our examination discloses that none of the twelve causes could be in anywise associated or related to ancestry, national origin or religious creed.

Termination proceedings were instituted on May 26, 1972, by means of a formal “Notice of Intention to Terminate” Djuric’s employment as of June 20, 1973, executed by President Heady. The notice was submitted to Djuric with attachments setting forth causes, including the memorandum dated May 16, 1972, signed by Chairman Bolie and each of the seven full professors of Djuric’s Department, recommending the institution of dismissal proceedings, in light of Dr. Djuric’s alleged “poor performance and antagonistic attitude” which they stated to be ‘‘unacceptable and detrimental” to the Department. We view the memo as extremely relevant and significant. Chairman Bolie and each of the full professors had, just as Djuric, attained doctorate degrees. On August 17, 1972, Chairman Bolie again notified Djuric of specific causes evidencing Djuric’s “continuing refusal” to carry his “share of the workload in this department” by alleged refusal to teach two “lab sections” during the Fall Semester of 1972.

On September 5, 1972, Dr. Djuric filed a charge with the EEOC alleging:

“After filing a charge with the Human Rights Commission of New Mexico, and the State having found probable cause, on or about May 25, 1972, the University retaliated against me by informing me that my services would be terminated as of June 30, 1973.”
“I am being discriminated against because of my national origin, Yugoslav.”

During the course of the investigation of the above charge, the University supplied the EEOC with requested information including: (a) records or lists of all terminations which occurred at the College of Engineering from September 1, 1970 to the present, revealing race or national origin, position hired into, date of hire, starting salary, ending salary, date of termination and reason for termination; (b) copies of memorandums or letters that any other terminated employees received if any terminations were for the same reason as Dr. Djuric’s; (c) a complete copy of Dr. Djuric’s personnel file; (d) all records or minutes held by the Engineering Department which led to the decision to terminate Djuric’s services; and (e) a statement as to why the decision was made in May of 1972 to terminate Dr. Djuric. Thereafter, in order to conduct a more “thorough and complete investigation of the charge” the EEOC requested the University to provide further information. The University refused to do so, contending that the EEOC request was not relevant to the charge and was too broad. On May 16, 1973, the EEOC issued a subpoena duces tecum for the production of the requested additional information, to-wit:

1. Copies of personnel files of those faculty members terminated from the College of Engineering from January, 1970, to May 14, 1973.
2. Copies of personnel files of all faculty members in the College of Engineering as of May 14, 1973.

Following the University’s refusal to comply with the subpoena, the EEOC petitioned the District Court for an order requiring obedience thereto. The Trial Court conducted hearings on August 24 and November 1, 1973. On November 2 the Court entered a “Memorandum Opinion” holding, inter alia, that “the files sought by the Commission should contain evidence relevant to the area of inquiry of the Commission. It would be relevant to determine if any similar situations had occurred in the College, and if so, whether comparable action had been taken. As the party being investigated, it would not be appropriate for the University to have the authority to determine which files might contain evidence of comparable situations having occurred in the College.” On December 3, 1973, the District Court entered its Order directing the University to produce the records and papers described in the subpoena and to make them available for inspection by the EEOC within 30 days. This appeal followed. The judgment appealed from is final and the notice of appeal presents issues for review by this Court. Joslin Dry Goods Co. v. Equal Employment Opportunity Commission, 483 F.2d 178 (10th Cir. 1973).

The pertinent statutes involved in this action are:

Section 709(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-8(a):

In connection with any investigation of a charge filed under section 2000e-5 of this title, the Commission or its designated representative shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by this subchapter (42 U.S.C.A. §§ 2000e-2000e-17) and is relevant to the charge under investigation.

42 U.S.C. § 2000e-9 provides, inter alia:

For the purpose of all hearings and investigations conducted by the Commission or its duly authorized agents or agencies, section 161 of Title 29 shall apply.
29 U.S.C. § 161 provides, inter alia:
For the purpose of all hearings and investigations,
(1) The Board, or its duly authorized agents or agencies, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question . Within five days after the service of a subpoena . . . such person may petition the Board to revoke, and the Board shall revoke, such subpoena if in its opinion the evidence whose production is required does not relate to any matter under investigation, or any matter in question in such proceedings, or if in its opinion such subpoena does not describe with a sufficient particularity the evidence whose production is required.

During the hearings held before the District Court, the Court and the EEOC clearly treated Dr. Djuric’s complaint as one predicated upon alleged discrimination because of his Yugoslav national origin.

The University’s position has consistently been that the information, files, records and documents it has already supplied the EEOC clearly evidence that the sole and only reason for Djuric’s termination is that of poor job performance. The University argues that because the Djuric discrimination charge, i. e., retaliation (abandoned) and termination by reason of Yugoslav origin, is a personal and not a class complaint, that the EEOC, through its Chief Investigator, Edmund L. Trujillo, is first and foremost, under the circumstances of this case, obligated to initially and carefully examine the documentary evidence supplied by the University and to interrogate the University’s President, administrative personnel and departmental professors regarding Djuric’s poor job performance in relation to his termination in order to determine whether those causes are valid. The University thus contends that if those causes clearly support the allegation of poor job performance, there is no need to investigate or inquire further. In ef-feet, the University argues that evidence of Dr. Djuric’s poor job performance is so compelling that it constitutes the exclusive reason for his termination.

On several occasions during the course of the Trial Court hearings, the EEOC complained that the University was trying to dictate the manner in which it should investigate. EEOC Investigator Trujillo testified. He acknowledged that he was fully aware of the University’s alleged reasons and causes for Djuric’s termination evidenced by the documentary evidence supplied; that he had been so aware for a period of about ten months before the subpoena duces tecum was issued; and that during this period he did not interrogate any of the University personnel regarding Djuric’s “shortcomings” in terms of his “poor job performance and uncooperative attitude” prior to inquiring into any discriminatory reasons for his termination. Trujillo contended that he needs all of the records and personnel files demanded in the subpoena duces tecum in order to ascertain whether any of the transgressions attributed to Dr. Djuric have been committed by other employees who have been treated in the same manner as Djuric. In this sense, the information sought would be in the nature of comparative data.

On appeal the University set forth some six specific issues, with attendant sub-issues. We consider the following issues controlling and dispositive of the University’s contentions: (1) that the subpoenaed information is not relevant in that the subpoena is overbroad and unreasonable in scope in light of the fact that the University has already provided the EEOC with more than adequate evidence that Djuric’s termination was not based upon any discriminatory reason' but was solely and exclusively the result of his poor work (job) performance; (2) that the subpoenaed information is not sufficiently identified to protect University personnel from disclosure of confidential information and must be modified, if enforceable, so as to describe the information sought in the various personnel files with particularity; and that (3) the subpoena violates the commands of the Fourth Amendment to the United States Constitution prohibiting unreasonable searches because the EEOC did not have probable cause prior to its issuance to believe that the University had discriminated against Dr. Djuric based upon his national origin or any other reasonable cause to believe that the University had practiced employment discrimination against him for any other reason.

I.

The Trial Court treated the Djuric charge as one alleging termination of his status as assistant professor because of his national origin (Yugoslav). Neither the Court nor the EEOC relied upon the charge that the University terminated his employment in retaliation because of the charge he had previously lodged with the New Mexico Human Rights Commission. (R. Vol. II, pp. 22, 26, 28, 81). The EEOC acknowledged that it was undertaking the subject investigation, not in relation to the “retaliation” aspect of Djuric’s charge, but rather to determine whether Djuric was discriminated against for other reasons. (R. Vol. II, pp. 39, 41, 42, 69, 73).

At the threshold we observe that Title VII speaks only to the future. The only justification for a backward gaze is in determining whether a present employment practice may, in fact, perpetuate past discrimination.

The sole limitation imposed upon the discovery procedures of the EEOC in the conduct of investigations triggered by charges filed under 42 U.S.C. § 2000e-5 is whether the information sought is “relevant” to or “relates to any matter” under investigation or in question. 42 U.S.C. § 2000e-8(a); 29 U.S.C. § 161(1). It is fundamental that administrative subpoenas issued pursuant to these statutes require as much precision as is fair and feasible in identifying the records or materials sought and that they cannot be so broadly stated as to constitute a “fishing expedition.” Cudahy Packing Co. v. National Labor Relations Board, 117 F.2d 692 (10th Cir. 1941). See also Parliament House Motor Hotel v. Equal Employment Opportunity Commission, 444 F.2d 1335 (5th Cir. 1971); National Labor Relations Board v. Northern Trust Co., 148 F.2d 24 (7th Cir. 1945), cert. denied, 326 U.S. 731, 66 S.Ct. 38, 90 L.Ed. 435 (1945).

In Cudahy Packing, supra, we held that the only limitation “upon the power of the Board to compel the production of documentary or oral evidence is that it must relate to or touch the matter under investigation or in question. The Board may not go beyond this limitation and pry into the affairs of a business concern generally.” 117 F.2d at 694. [Emphasis ours] See also Goodyear Tire & Rubber Co. v. National Labor Relations Board, 122 F.2d 450, 136 A.L.R. 883 (6th Cir. 1941).

Nothing in the governing statutes relative to investigations undertaken by the National Labor Relations Board refers to the relevancy standard applied in 42 U.S.C. § 2000e-8(a), i. e., "... investigation . . . access to . any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by this subchapter and is relevant to the charge under investigation.” [Emphasis ours]

The University strongly contends that the information sought via the subpoena is not relevant to the Djuric investigation. The EEOC argues, contra, that it would provide comparative evidence which is often highly probative in employment discrimination cases, and that in the instant case before the Commission can make a determination as to the merits of the general charge, it must have access to comparative data to see how the employer treated similarly situated persons of different races, sexes or national origins. The Commission states that the question is not merely whether the reasons alleged by the University have merit, per se, but whether those reasons are pretextual and whether they reflect bias, conscious or sub-conscious, based on national origin. It is on this ground that the EEOC contends that it is entirely relevant to the charge that it investigate the subject personnel files in order to determine how faculty members of different national origins were treated in comparable situations.

The broad sweep of the Act is directed to the elimination of employment discrimination, whether practiced knowingly or unconsciously and in relation to employment or advancement criteria which, although neutral on its face, is in fact discriminatory in its application. Joslin Dry Goods Co., supra, Sparton Southwest, Inc. v. Equal Employment Opportunity Commission, 461 F.2d 1055 (10th Cir. 1972).

In Joslin Dry Goods Co., supra, the EEOC undertook an investigation upon a private grievance by a Mrs. Elnora Thompson, a black, that she had been discharged from her employment based in whole or in part on her race or color. We reversed the Trial Court’s holding that because Mrs. Thompson had not been the object of any hiring discrimination, no investigation could be undertaken by the Commission relative to Joslin’s hiring practices. We held that such an investigation was relevant, on the basis that employment practices and policies relate to hiring as well as firing.

The law governing the limits on the administrative power of investigation has evolved from the earlier judicial condemnation of fishing expeditions to that of enforcement of the subpoena power “if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant.” United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 369, 94 L.Ed. 401 (1950). All that is now required is that the investigation be for a lawfully authorized purpose. United States v. Morton Salt Co., supra. In United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964), the United States Supreme Court held that an investigation by the Internal Revenue Service into a question of fraudulent falsification of tax returns need not be based upon something in the nature of probable cause. The Court there said:

“We . . . hold that the Government need make no showing of probable cause to suspect fraud unless the taxpayer raises a substantial question that judicial enforcement of the administrative summons would be an abusive use of the court’s process, predicated on more than the fact of re-examination and the running of the statute of limitations on ordinary tax liability.” 379 U.S. at 51, 85 S.Ct. at 251.

The University’s invocation of the Fourth Amendment prohibition against unreasonable searches and seizures is predicated upon the basic proposition that the subpoenaed faculty personnel files involve a myriad of matters, much of which is personal, private, and confidential. The University contends that these materials are privileged in that their production, in toto, is violative of the protection to be afforded faculty members to one’s privacy under the Fourth Amendment. The parties to this action stipulated at trial that the subpoenaed personnel files and records are both confidential and extremely sensitive. (R. Vol. II, pp. 30-31). It is specifically proscribed that any officer or employee of the Commission who makes public in any manner such information obtained in the course of investigation shall be guilty of a misdemeanor and, upon conviction, subject to a fine of not more than $1,000.00 or imprisoned not more than one year. 42 U.S.C. § 2000e-8(e). See United States v. Powell, swpra. Just as the Court in Powell, supra, did not require a showing of probable cause in order to sustain an IRS administrative summons of taxpayer accounts in a tax fraud investigation, so, too, in dictum, the Court obsei’ved that the “probable cause” requirement has been rejected in like circumstances involving other government agencies. 379 U.S. at 57, 85 S.Ct. 248. The Court there cited Oklahoma Press Publishing Co. v. Walling, Wage and Hour Administrator, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946), and United States v. Morton Salt Co., supra, for the rule that the enforcement of administrative subpoenas rests upon showings that the investigation: (a) will be conducted pursuant to a legitimate purpose; (b) that the inquiry is relevant to the purpose; (c) that the information sought is not already in the possession of the administrative body; and (d) that the administrative steps required by Code have been followed.

We thus conclude that under the statutes here applicable that subpoena duces tecum is enforceable even though no “probable cause” has been shown that the University has violated the Act; that today that which we have previously considered to be administrative “fishing expeditions” are often permitted; and that administrative subpoenas may be enforced for investigative purposes unless they are plainly incompetent or irrelevant to any lawful purpose.

In Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973), the Supreme Court held that a taxpayer under IRS investigation could not claim a legitimate Fifth Amendment privilege based upon expectation of privacy in records which he had delivered to his accountant for the purpose of preparing the taxpayer’s personal income tax return.

This Court has held that charges filed with the EEOC by lay complainants who are unfamiliar with the niceties of pleading and who are generally without the assistance of counsel must be liberally construed in order to satisfy the broad substantial objectives of the Act. In Sparton Southwest, Inc., supra, 461 F.2d at 1059, we favorably referred to the following language from Graniteville Company (Sibley Division) v. Equal Employment Opportunity Commission, 438 F.2d 32, 38 (4th Cir. 1971):

The purpose of the charge under section 706 is only to initiate the EEOC investigation, not to state sufficient facts to make out a prima facie case . . . The scope of prohibited practices under Title VII is broad. The section 706(a) requirement that charges state the facts on which they are based must accordingly be given a flexible interpretation as applied to allegations of different unlawful employment practices.

See also Joslin Dry Goods Co., supra; Ammons v. Zia Company, 448 F.2d 117 (10th Cir. 1971).

We have likewise held, following Spar-ton, supra,, that a charge filed by an EEOC Commissioner, although requiring more specificity than that of the lay complainant, is also entitled to a flexible interpretation in satisfaction of the requirements of 42 U.S.C. § 2000e-5(a). United States Steel Corporation v. United States, 477 F.2d 925 (10th Cir. 1973); Mountain States Telephone and Telegraph Company v. Equal Employment Opportunity Commission, 466 F.2d 541 (10th Cir. 1972); Adolph Coors Company v. Equal Employment Opportunity Commission, 464 F.2d 1270 (10th Cir. 1972), cert. denied 410 U.S. 929, 93 S.Ct. 1365, 35 L.Ed.2d 591 (1973).

We hold that the trial court did not err in finding that the subpoena duces tecum sufficiently describes the information sought and that although the information sought is confidential it must be, as stipulated, treated as such in the course of the investigation.

II.

The University contends that the discovery sought should not be allowed because it relates, in part, to events reflected in the faculty personnel files which occurred prior to the effective date of the 1972 Amendments to Title VII of the Civil Rights Act of 1964 which extended its coverage to educational institutions. The Equal Employment Opportunity Act of 1972, P.L. 92-261, 86 Stat. 103 (March 24, 1972); 42 U.S.C. § 2000e et seq.

We previously observed that while Title VII speaks to the future, it necessarily embraces a backward glance in order to determine whether present employment practices are perpetuating past discriminations. Joslin Dry Goods Co., supra; Spurlock v. United Airlines, Inc., 475 F.2d 216 (10th Cir. 1972) ; Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (10th Cir. 1970), cert. denied 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971); Local No. 104, Sheet Metal Workers International Association, AFL-CIO, v. Equal Employment Opportunity Commission, 439 F.2d 237 (9th Cir. 1971); Georgia Power Company v. Equal Employment Opportunity Commission, 412 F.2d 462 (5th Cir. 1969).

In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the United States Supreme Court held that the Act requires the elimination of artificial, arbitrary and unnecessary barriers to employment that operate invidiously to discriminate on the basis of race, and if an established employment practice that operates to exclude Negroes cannot be shown to be related to job performance, it is prohibited, notwithstanding the employer’s lack of discriminatory intent. Chief Justice Burger, writing for the Court, said:

The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to “freeze” the status quo of prior discriminatory practices. . . . The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. 401 U.S. at pp. 429-431, 91 S.Ct. at p. 853.

ttt

Finally, we deal with University’s contention that the EEOC subpoena is arbitrary, capricious and unreasonable because: (1) the EEOC already has sufficient information to make an independent determination that the action of the University is reasonable and not discriminatory; and (2) the EEOC has failed to accord substantial weight to the New Mexico Human Rights Commission finding of “no discrimination.”

We readily concede that the University’s argument does have practical, common sense appeal. If we assume that the EEOC should pursue the investigation to conclusion, including review of all of the information in the personnel files sought via the subpoena, and then conclude that (a) Dr. Djuric was discharged solely for lack of adequate job performance as contended by the University, but (b) other professors whose job performance records are no better than those of Dr. Djuric have been retained, what practical remedy is available to Dr. Djuric? It is inconceivable that Dr. Djuric would be reinstated under such circumstances; certainly that action could not work to the benefit of the students, given the fact of poor job performance. If, however, the end result would be the discharge of other faculty members whose personnel files likewise reflect poor job performance, one must acknowledge that ultimate beneficiaries — the students — would be grateful recipients of the EEOC effort. We do not attribute such a likely state of affairs to the governing officials of the University of New Mexico, and, in fact, find the very suggestion insulting. Be that as it may, the “broad sweep” of the Act dictates that such an inquiry may be pursued. In any event, no relief or remedy can be effected under the Act until the investigation is concluded. Even then the Commission is directed to endeavor to eliminate the alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion before a court proceeding. is initiated. 42 U.S.C. § 2000e-5 et seq.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the United States Supreme Court dealt with a case involving a complaint under Title VII of the Civil Rights Act of 1964 filed by a black civil rights activist who had previously engaged in disruptive and illegal activity against McDonnell Douglas Corporation (McDonnell), as part of his protest that his discharge as an employee of the firm was based upon McDonnell’s racially motivated general hiring practices. The Court held that: (a) a complainant’s right to sue under the Civil Rights Act of 1964 is not predicated upon EEOC finding of “reasonable cause” ; and (b) in a private, non-class action complaint under Title VII charging racial employment discrimination, the complainant has the burden of establishing a prima facie case which he can satisfy by showing that: (1) he belongs to a racial minority; (2) he applied and was qualified for a job the employer was trying to fill; (3) although qualified he was rejected; and (4) thereafter the employer continued to seek applicants with complainant’s qualifications. Under such circumstances, the burden then shifts to the employer to “articulate” some legitimate, non-discriminatory reason for the rejection of the complainant’s application. Significantly, however, the Court did not stop there. It noted that even should the employer’s reason for rejection suffice to meet the prima facie case, still the inquiry “must not end there.”:

While Title VII does not, without more, compel rehiring of respondent, neither does it permit petitioner [McDonnell] to use respondent’s conduct as a pretext for the sort of discrimination prohibited by § 703(a)(1). On remand respondent must . be afforded a fair opportunity to show that petitioner’s stated reason for [his] rejection was in fact pretext. Especially relevant to such a showing would be evidence that white employees involved in acts against [McDonnell] of comparable seriousness . . . were nevertheles retained or rehired. [McDonnell] may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.
Other evidence that may be relevant to any showing of pretext includes facts as to [McDonnell’s] treatment of [Green] during his prior term of employment; [McDonnell’s] reaction, if any, to [Green’s] legitimate civil rights activities, and [McDonnell’s] general policy and practice with respect to minority employment . . . statistics as to [McDonnell’s] employment policy and practice may be helpful to a determination of whether [McDonnell’s] refusal to rehire . . . conformed to a general pattern of discrimination against blacks. ... In short, on the retrial [Green] must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a cover up for a racially discriminatory decision. 411 U.S. at 804-805, 93 S.Ct. at 1825.

Thus, just as we recognized the viability of the “business necessity rule” (Jones v. Lee Way Motor Freight, Inc., supra), and the nondiscriminatory, objective “job performance” rule which meets the business necessity test [Spurlock v. United Airlines, Inc., supra; Williams v. American Saint Gobain Corporation, Okmulgee, Oklahoma, 447 F.2d 561 (10th Cir. 1971)], still evidence presented during either the investigation of a charge or at trial thereafter raising these defenses in meeting the prima facie case cannot end the inquiry. McDonnell Douglas Corporation v. Green, supra; Griggs v. Duke Power Co., supra.

The Congress granted the courts, in those cases involving unlawful employment practice, broad remedial power, including the power to enjoin “ . the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate ... or any other equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5(g). [Emphasis ours]

We must, accordingly, hold that the trial court did not err in finding that the subpoenaed information is relevant to the charge; that the subpoena sufficiently describes the information sought and is not overbroad and unreasonable in scope; that the subpoena does not violate the Fourth Amendment prohibition against unreasonable searches; that the subpoena is not arbitrary, capricious and unreasonable; and that the subpoena is enforceable without modification.

We affirm.