author: FAIRCHILD, Circuit Judge.

text:
    ROSSETTI CONTRACTING COMPANY, INC., Plaintiff-Appellee, v. Peter J. BRENNAN, Secretary of Labor, and Environmental Protection Agency, Defendants-Appellants, and John McElwain, President, Board of Trustees, Hinsdale Sanitary District, DuPage County, Defendant-Appellant, and Hinsdale Sanitary District, DuPage County, Defendant-Appellant, and Loitz Brothers Construction Co., Inc., Intervening Defendant-Appellant.
    Nos. 74-1850, 74-1851 and 74-1853.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 11, 1974.
    Decided Dec. 30, 1974.
    Opinion Jan. 9, 1975.

      James R. Thompson, U. S. Atty., Gary L. Starkman and Martin B. Lowery, Asst. U. S. Attys., Chicago, 111., Louis R. Main, Hinsdale, 111., Peter B. Carey, Chicago, 111., for defendants-appellants.
    James E. O’Halloran, Jr., Chicago, 111., for plaintiff-appellee.
    Before FAIRCHILD, PELL and SPRECHER, Circuit Judges.
   FAIRCHILD, Circuit Judge.

This appeal presents the issue of whether a bidder on a federally assisted construction contract who fails to submit with his bid the appropriate commitment required by the “Chicago Plan” for minority hiring, may amend his bid submission subsequent to the opening of the bid so as to qualify as a responsive bidder.

On May 10, 1974, appellant Hinsdale Sanitary District, an Illinois Municipal Corporation of Cook and DuPage eounties, solicited bids for the construction of an interceptor sewer, a phase of a project which was to be constructed with the assistance of partial funding from the United States Environmental Protection Agency (EPA). The invitation for bids issued by the Sanitary District fully incorporated the provisions of the Chicago Plan, a regulation promulgated by the Secretary of Labor which requires, as a prerequisite to eligibility for a contract award in certain federally involved construction projects in the Chicago, Illinois SMSA, completion and submission prior to bid opening of an “Appendix A” or its equivalent, indicating goals for minority manpower utilization in designated trades on all the bidder’s work during the term of performance of the contract, within ranges prescribed by the Secretary of Labor.

Bids were opened on June 7, 1974 and the apparent low bidder was appellee Rossetti Construction Company, with a bid of $1,988,908.00. The Sanitary District granted Rossetti tentative award of the contract pending approval of the bid’s compliance with federal contract regulations, including those imposed by the Chicago Plan, and submitted the bid to the EPA Contract Compliance Office for consideration. On June 28, 1974, the director of the Office for Civil Rights and Urban Affairs of EPA notified the Sanitary District that, due to failure to comply with the Chicago Plan’s requirements, Rossetti’s bid was considered to be unresponsive. Specifically, he found that by placing brackets around all of the trades designated on Appendix A, Rossetti had failed to indicate which specific trades it intended to utilize on the project; and, by placing the figure of 10% opposite the bracketed trades, it had failed to designate acceptable manpower goals within the prescribed ranges required by the Plan.

Rossetti protested the rejection and sought an opportunity to appear before that agency and present evidence concerning its bid. On July 2, 1974, a meeting between Rossetti and EPA compliance officials was held during which Rossetti tendered an amended Appendix A, correcting the defects in its prior submission. In support of this amendment, a written statement was provided setting forth the circumstances explaining the original Appendix A and providing documentation tending to establish a past history of active participation in minority employment programs and actual compliance with the appropriate minority hiring goals for operating engineers set forth in Appendix A for the year 1974.

The matter was taken under consideration by the EPA and, on July 10, 1974, after consultation with Department of Labor officials, possessing primary authority for interpretation of the Plan, Rossetti was informed that the Chicago Plan provided no authority or discretion to permit amendment of a nonresponsive Appendix A subsequent to bid opening. Accordingly, Rossetti’s bid was found to be unresponsive and the Sanitary District prepared to award the contract to the project’s second low bidder, intervening defendant appellant Loitz Brothers Construction Company.

On July 11, 1974, Rossetti filed an action in the United States District Court for the Northern District of Illinois seeking declaratory and injunctive relief. The parties agreed to maintain the status quo pending judicial resolution. After a full hearing, the district court concluded as a matter of law that the error in Rossetti’s Appendix A was a good faith inadvertent misstatement which, since Rossetti was in fact in current compliance with the Chicago Plan’s utilization goals and since the error did not affect price, quality or quantity of goods or services provided, was minor and could be corrected or waived without violence to the Chicago Plan’s purpose or intent. The court rejected the Department of Labor’s position that no federal agency had the power to permit such post-bid-opening amendment of Appendix A as being without basis in law and deemed the position clearly contradicted by repeated exercise of discretion in the past. Accordingly, the court issued a decree compelling the Department of Labor to accept Rossetti’s amendment and to find its bid responsive, and enjoining the Sanitary District from granting the contract award to any party other than Rossetti. All defendants appeal.

Rossetti seeks judicial review of the Department of Labor’s determination that the Chicago Plan precludes post-bid-opening amendment of its unresponsive Appendix A. While the Administrative Procedure Act, 5 U.S.C.' § 702, provides a basis for such consideration, Scanwell Laboratories, Inc. v. Shafer, 137 U.S.App.D.C. 371, 424 F.2d 859, 872 (1970), the applicable standards of review are narrowly circumscribed. It is well established that great deference is due to the interpretation given an administrative regulation by the federal agency entrusted with its promulgation and interpretation. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Contractors Ass’n of Eastern Pa. v. Secretary of Labor, 442 F.2d 159, 175 (3rd Cir. 1971), cert denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95. Moreover, when the administrative determination at issue concerns procurement of bid disputes, “[i]f the court finds a reasonable basis for the agency’s [decision], the court should stay its hand even though it might, as an original proposition, have reached a different conclusion as to the proper administration and application of the procurement regulations.” Steinthal v. Seamans, 147 U.S.App.D.C. 221, 455 F.2d 1289, 1301 (1971).

For purposes of decision, we assume the correctness of the district court’s findings of fact concerning the circumstances underlying the preparation of the defective Appendix A, the good faith of Rossetti’s officers in the matter, and its actual compliance with the Chicago Plan’s minority employment utilization goals at the date of the submission of its bid. Our review of the applicable authority and of the record persuades us, however, that even assuming the facts found, the judgment appealed from is erroneous.

The district court concluded that the Plan must be interpreted so as to permit the Department of Labor to exercise discretion sufficient to approve the filing, after the opening of a bid, of an amended Appendix A, committing the bidder to minority employment goals within the prescribed range for the trade actually involved, where (1) the inadequate commitment originally submitted was an inadvertent error made in good faith and (2) the bidder’s current hiring of minority employees is in fact within the prescribed range. The court considered that in the light of the purpose of the Plan, to promote minority hiring in skilled construction trades, no useful purpose would be served by disqualifying a contractor for inadvertent error, when it has proved that its minority hiring practices comply with the goals of the Plan. The court relied on the proposition that a regulation should be interpreted in such a manner as to promote its purpose. The court deemed the error minor under the circumstances, and relied on both state and federal doctrines permitting the waiver of minor irregularities and correction of bid defects which do not go to the price, quantity or quality of the goods or services to be performed. The court also relied on several instances in which the Department had previously permitted submissions of an appropriate Appendix A after opening of bids. Evidently, the proofs with respect to Rossetti’s good faith and hiring practices satisfied the court that it was an abuse of discretion to refuse permission to amend.

There is, of course, some appeal to the thought that an employer who has demonstrated achievement of the 1974 goal of hiring members of minorities is already serving the purpose of the Plan and that there may be as much or more probability that he will reach the 1975 goal as an employer who merely makes the commitments. The Plan, however, is focussed on the making of the commitment, with its extent increasing year by year, and there is nothing unreasonable in insisting on the- commitment as the condition of eligibility.

The Chicago Plan was promulgated by the Secretary of Labor to implement Executive Order 11246, requiring furnishing of equal employment opportunity by federal contractors. It was imposed on December 19, 1973 after two prior attempts to develop “voluntary home town plans” had been deemed “unacceptable.” 41 C.F.R. § 60 — 11.3. To remedy the perceived ineffectiveness of the voluntary plans, the Secretary implemented an imposed plan which sought to obtain an enforceable commitment from contractors in federally sponsored or assisted projects in the Chicago area to utilize in all their work an acceptable percentage of minority workmen in selected skilled and semi-skilled construction trades during the period of their employment on the project. The lynchpin of this scheme is the ability of the government to enforce good faith compliance with the Plan’s objectives. To achieve this enforceability, a contractual obligation, is obtained from the contractor by requiring, as a condition precedent to the awarding of the contract, the submission, prior to bid opening, of a properly completed Appendix A.

The Plan (Appendix A) not only prohibits award of the contract “unless the bidder completes and submits, prior to bid opening,” Appendix A, but also provides:

“A bidder who fails or refuses to complete or submit such goals shall not be deemed a responsive bidder and may not be awarded the contract or subcontract. ... In no case shall there be any negotiations over the provisions of specific goals submitted by the bidder after the opening of bids and prior to the award of the contract.”

We think the specific provision above quoted is ample to exclude the defect in Rossetti’s original Appendix A from the category of minor errors and defects which may be waived or corrected even though the defect does not go to the price, quantity or quality of the services. Similar provisions concerning affirmative action commitments are contained in local plans enacted in Philadelphia, Washington, D. C. and other municipal areas. These plans have been consistently interpreted by the Comptroller General, -the Department of Labor, and the courts as precluding post-bid-opening amendment of incomplete or unresponsive affirmative action commitments under the conditions of this case. See, e. g., Northeast Construction Co. v. Romney, 157 U.S.App.D.C. 381, 485 F.2d 752, 756-57 (1973); 52 Comp.Gen. 874 (1973); Comp.Gen. Decision B-176171 (Aug. 29, 1972); Comp.Gen. Decision B-178839 (Oct. 10, 1973); Comp.Gen. Decision B-180324 (Jan. 16, 1974).

Accordingly, we find ample support for the Secretary of Labor’s decision challenged here. As was stated by Judge Leventhal, in dealing with a substantially similar problem under an analogous Washington, D. C. Plan: “What the Washington Plan, and Appendix A, called for was a statement of specific goals for a future period, not as of the time of the bid, and a commitment for a minority utilization. The specific command of the Appendix A regulation clearly states and reiterates a bid lacking the pertinent information concerning projected employers [sic] and specific goals will be deemed nonresponsive. Whether or not other bidders would be prejudiced by subsequential insertion, the Government’s broad policy objective may be prejudiced by the omission.” Northeast Construction Co. v. Romney, supra, 485 F.2d at 759.

Moreover, we take note that a contrary position, such as that adopted by the district court, tends to impair the operation of the sealed competitive bidding system. Where a bidder is permitted to correct a deficiency in Appendix A after bid opening, “[t]he effect . would be to permit a bidder who repented his bid- — perhaps on seeing that his bid was too far below the next bidder to be economically sound — to step away from the matter by simply failing to supply the omission.” Id. 485 F.2d at p. 757. In addition, the district court’s position would impose a requirement of a factual hearing, with the attendant possibilities of judicial and appellate review, prior to the awarding of a contract and the commencement of work, in order to assess the good faith or inadvertence of the error and to determine whether the contractor in question was in fact in actual compliance with the utilization goals. The delay and protracted litigation engendered in this case stands as persuasive evidence of the injury which can result, both to the contractors who may well be bound to their original estimates during the pendency of the dispute, and to the general public.

Considering the above-stated propositions dispositive, we need not devote extensive analysis to the question of whether general federal procurement regulations or the applicable Illinois law, which both permit waiver or amendment of minor or inconsequential errors after the opening of bids, require the Department of Labor to permit Rossetti to amend its Appendix A. We have concluded that, while admittedly Appendix A does not go to matters of price or quality of work, it has been made a matter of bid responsiveness. Clearly, under either federal or state law, unresponsive bids may not be corrected, after opening, in order to make them responsive. See 41 C.F.R. § l-2.406-3(a); City of Chicago v. Mohr, 216 Ill. 320, 328-29, 74 N.E. 1056 (1905).

Accordingly it appears that the Plan makes the submission of an appropriate Appendix A a matter of responsiveness; nothing in the Plan provides for administrative discretion to permit post-bid-opening amendment; and the position taken by the Department of Labor in this case is within the permissible scope of interpretation of the Plan. The record discloses, however, several instances where the Department has assumed its power to permit a bidder to furnish an appropriate Appendix A after the opening of bids.

The question arises whether these instances establish administrative interpretation of the Plan, supporting the existence of discretion in the Department to permit post-bid-opening amendment of an Appendix A so as to bring the bid into compliance.

It has been suggested in argument that the agencies’ exercise of discretion on these prior occasions was not authorized by law and, therefore, provides no authority for the district court’s conclusions. We do not reach the question of validity of those actions, since the facts and circumstances of the prior cases fall well outside the ambit of those presented here.

The record discloses that, in each of; the five instances in which the federal appellants have permitted a post-bid-opening submission or correction of Appendix A, the bidding • documents presented to the prospective bidder by the contracting entity did not contain the Chicago Plan or Appendix A. These instances occurred soon enough after the present Plan was promulgated so that the documents appear not to have been available to the agencies inviting bids. The Department of Labor and the EPA considered that, under these particular circumstances, prospective bidders had no opportunity to submit an Appendix A in conjunction with their bids and concluded that it would be unfair to evaluate a submitted bid on the basis of factors which, through no fault of the contractor, were not included in the bid invitation. Accordingly, if all other elements of the bids in question were found to be responsive, the agencies permitted submission of a correctly completed Appendix A after the opening of bids.

The facts presented in this case are certainly of a different color. It is undisputed that the bidding documents advertised by Hinsdale Sanitary District incorporated fully both the text of the Chicago Plan and Appendix A and, in several instances, informed the prospective bidder of the importance of properly complying with the Plan. Rossetti representatives attended a pre-bid conference where prospective bidders were again reminded of the mandatory nature of Appendix A submissions. Under these facts, we conclude that, regardless of the propriety of the five prior exercises of discretion, there was no showing made of any practice or intention, by either the Department of Labor or the EPA, of permitting amendment of Appendix A after the opening of the bid when the Chicago Plan requirements were properly included within the bid package. At best for Rossetti the five instances introduced into the Plan a flexibility during an initial period where circumstances rendered insistence on full compliance more palpably unfair.

Accordingly, the federal defendants’ present interpretation of the Plan and their application of it to the instant case are neither arbitrary nor unreasonable.

The judgment appealed from is reversed and the cause remanded with instructions to dismiss the action. Because of the exigencies of time, indicated by the parties, our judgment to that effect was entered December 30, 1974, noting that the opinion would be later filed.

      . 41 C.F.R. § 60-11.1 et seq. issued pursuant to Exec. Order No. 11246, 3 C.F.R. § 169 (1974) as amended.

      . The Chicago SJvlSA is comprised of Cook, DuPage, Kane, Lake, McHenry and Will counties.

      . The Chicago Plan provides in pertinent part:
      “No contracts or subcontracts shall be awarded for Federal and Federally-assisted construction in the Chicago, Illinois SMSA on projects whose estimated cost exceeds $500,000 unless the bidder completes and submits, prior to bid opening, the document identified as Appendix A, ... or a substantially similar document, which shall include specific goals, of minority manpower utilization for each trade designated therein which will be used by the contractor on all of his work (both Federal and non-federal) within the Chicago SMSA during the term of his performance of the contract, such goals to be established by the contractor at least within the ranges set forth in Appendix A.” 41 C.F.R. § 60-11.-21(a).

      . Rossetti, in its initial Appendix A submitted prior to the opening of bids, indicated a minority utilization goal for all fifteen designated trades for the contract performance period of 1974 and 1975 of 10%. While 10% would fall within the mandatory range for minority manpower utilization prescribed in Appendix A by the Secretary of Labor for most of the trades, it was insufficient for 1974 as to Plasterers, 18.8-20.2%; and Operating Engineers, 10.2- 13.9%, and for 1975 as to Plasterers, 20.2- 21.6%; Roofers, 12.0-14.0%; Operating Engineers, 13.9-17.6%; and Bricklayers, 10.6-12.5%. See 41 C.F.R. § 60-11.23(a) (Appendix A).

      . Rossetti’s amended Appendix A indicated that, of the fifteen designated trades, it only intended to utilize operating engineers and stated a minority manpower utilization goal of 12% for 1974; 15% for 1975; 18% for 1976; 22% for 1977; and 25% for 1978 — all substantially within the acceptable minimum ranges set forth by the Secretary of Labor in Appendix A. See 41 C.F.R. § 60-11.23(2).

      . Rossetti asserted that its error in completing Appendix A was clerical in nature and was made in good faith. The Hinsdale waste treatment project at issue here was originally bid as a comprehensive project. Rossetti, as a member of a joint venture, submitted a bid on this project. The venture’s bid forms were completed by its major participant, Ad-vanee Construction, and its Appendix A stated a minority manpower utilization goal for 1974 and 1975 of 10%. While the bid was low, it was rejected as being over budget and, thus, the propriety of the 10% figures was never called into question. When the project was rebid in separate phases, Rossetti, allegedly unaware of the noncompliance of the figures utilized in the joint venture bid, erroneously carried over the earlier error of Advance. The district court accepted this explanation in its findings of fact.

      . In its findings of fact the district court concluded that “[i]n actuality, of the total man-hours worked by operating engineers from January 1 to June 30, 1974 by Rossetti employees, 10.55% were worked by minority operating engineers. Thus Rossetti was in actual compliance with the goals for 1974. Also, proof has shown that Rossetti’s minority utilization has increased from that time to the date of trial and that at this time Rossetti is approaching the standard set for 1975.”

      . Loitz Brothers’ bid, at $2,041,790, was approximately $55,000 in excess of Rossetti’s low bid.

      . See Note 6, supra.

      . The testimony indicates that the Rossetti employee who prepared the original Appendix A was aware of the disparity which existed between the Plan’s requirements and the actual figures submitted. Thus, because of the agent’s knowledge, the findings with respect to inadvertent error and good faith are open to question.

      . 41 C.F.R. § 1-2.405 provides in pertinent part:
      “A minor informality or irregularity is one which is merely a matter of form and not of substance or pertains to some immaterial or inconsequential defect or variation of a bid from the exact requirements of the invitation of bids, the correction or waiver of which would not be prejudicial to other bidders. The defect or variation in the bid is immaterial and inconsequential when its significance as to price, quantity, quality or delivery is trivial or negligible when contrasted with the total cost or scope of the supplies or services being procured. The contracting officers shall either give the bidder an opportunity to cure any deficiency resulting from a minor informality or irregularity in a bid or waive such deficiency which ever is to the advantage of the government.”
      See also, 41 C.F.R. § 1-2.406; Albano Cleaners, Inc. v. United States, 455 F.2d 556, 559, 197 Ct.Cl. 450 (1972); City of Chicago v. Mohr, 216 Ill. 320, 329, 74 N.E. 1056 (1905).

      . The Chicago Plan makes clear the role of Appendix A in this process: “Such appendix [A] . . . shall be deemed a part of all contracts executed pursuant to these regulations.” 41 C.F.R. § 60-11.21(a).

      . See, e. g., 41 C.F.R. Chapter 60.

      . As was indicated in Northeast Construction, a legal question is presented under such circumstances as to the degree of enforceability of any commitment which is tendered in a manner inconsistent with the requirements of the document. We agree with that court that the procurement or compliance officer is not required to resolve such legal questions, which at the very least the wording of the Appendix sought to avoid. “Is not the Government’s interest in this commitment important enough to require it in the bid, as filed, in the form of specific goals, without any question as to supplementation, and without any if, ands, or buts?” Id.

      . Concerning post-bid-opening amendments of errors in the bidder’s affirmative action commitment, the Comptroller General has concluded:
      “a bidder who fails to make such [pre-bid-opening] commitment may not have the deviation waived, nor may the bidder be permitted to correct the deficiency after bid opening in an effort to render the bid eligible for award.” Comp.Gen. Decision B-180324 (Jan. 16, 1974).

      . Of course, it may be argued that this problem could be obviated by requiring the federal government to waive any errors contained in a flawed Appendix A when the contractor could be shown to be in present compliance with utilization goals. Waiver of such a crucial and important concern as obtaining an enforceable commitment to observe federal standards of minority hiring during the term of participation on a federally involved contract, however, is clearly not envisioned under the language of the Plan.

      . The Chicago Plan has recognized this competing concern of delay, and has resolved the difficulty by seeking only the commitment of utilization prior to contract award. During performance, compliance investigation proceeds with sanctions available for failure to honor the commitment. Thus, compliance is not ignored under the Plan, as Rossetti argues.

      . It is well established that the procurement process, once exclusively concerned with price and quality of goods and services, has been increasingly utilized to achieve social and economic objectives only indirectly related to conventional procurement considerations. The attenuated relationship to price, quantity or quality, however, does not necessarily limit the power of Congress or the President to condition award of a contract on full and proper compliance. See, e. g., Northeast Construction Co. v. Romney, supra, 485 F.2d at 760-61; Contractors Ass’n of Eastern Pa. v. Secretary of Labor, supra, 442 F.2d at 170.

      . We thus need not decide the question presented by Loitz Brothers as to whether the general procurement regulations relied on by Rossetti and the district court, see note 11, supra, are applicable in projects where federal participation is limited to the role of partial funding. See, Shaw-Henderson, Inc. v. Schneider, 335 F.Supp. 1203, 1215 (W.D.Mich.1971), aff’d, 453 F.2d 748 (6th Cir. 1972).

      . In the instance of the Joliet contract awarded to Advance Construction Company, permission was granted to amend a faulty Appendix A after bid opening. While testimony at trial appears to indicate that the decision was reached on the assumption that the bidding materials contained the Chicago Plan and Appendix A, it is clear from the record that, as with the other four projects, the bidding materials did not contain any reference to the Plan and the initial faulty submission was provided on the initiative of Advance. Accordingly, all of the instances of prior conduct are factually distinguishable from the instant controversy and we have no occasion to reach their validity or authority. Even if the decision of an employee of the department in the Joliet-Advance instance were not explained on the basis that the Appendix A was not made available to the bidder, such single decision of an employee would not establish an administrative construction, binding on the department.


source: Caselaw Access Project

author: GODBOLD, Circuit Judge:

license: Public Domain

text:
    George M. LEBOSKY, aka Michael G. Lacey, Petitioner-Appellant, v. William B. SAXBE, Attorney General of the United States, et al., Respondents-Appellees.
    No. 73-3829.
    United States Court of Appeals, Fifth Circuit.
    Feb. 13, 1975.
    John P. Sugrue, Atlanta, Ga., for petitioner-appellant.
    John W. Stokes, Jr., U. S. Atty., Anthony M. Arnold, Asst. U. S. Atty., Atlanta, Ga., for respondents-appellees.
    Before GOLDBERG, GODBOLD and MORGAN, Circuit Judges.
   GODBOLD, Circuit Judge:

Appellant brought this suit in the Northern District of Georgia, asking a writ of mandamus against the Attorney General of the United States. He seeks relief from his inability to serve concurrently his federal sentences and a state sentence that specifically provided for concurrent service, claiming that he should be in federal not state custody, or that the state institution to which he is confined be designated by the Attorney General as a place of confinement for service of his federal sentence, or that he is entitled to credit on his federal sentence for time served under the state sentence. The District Judge dismissed the suit. We reverse.

This appears to be the chronology of pertinent events revealed by the pleadings as fleshed out by the original record. May 1968 appellant ,was incarcerated at Atlanta Federal Penitentiary under an 18 year sentence. September 1972 he escaped. The following month, October 1972, he was arrested by Louisiana state authorities and charged with armed robbery. A federal detainer was lodged with Louisiana authorities on the escape charge.

December 1972, while still in Louisiana custody, appellant wrote the United States District Court for the Northern District of Georgia, asking that the federal government be required to bring charges against him that would support its detainer, or remove the detainer. The District Judge treated the letter as a petition for a writ of mandamus and issued a show cause order. The government responded, asserting its right to issue a detainer against an escapee without bringing formal charges. Also it stated that appellant was due to be tried soon on the Louisiana state charge, that he was maneuvering to avoid the process of Louisiana courts, and prayed that the matter be held in abeyance for a reasonable time “in order to allow the due process of the State of Louisiana to take effect.” The court denied appellant’s request, saying:

When Lebosky should be returned to federal authorities to serve the remainder of that sentence is a matter which must be decided by an agreement between federal and Louisiana state authorities and depends partially on the outcome of his presently pending state prosecution.

March 1973 appellant withdrew his plea of not guilty and pleaded guilty in Orleans Parish (New Orleans) to a criminal information on the Louisiana state charge and was sentenced to 15 years “concurrent with any other sentence.” No order was issued to commit him to the Louisiana penitentiary. Instead he was held in the local jail and the sheriff’s records were marked “hold for federal custody.” A few days thereafter appellant’s Louisiana counsel wrote an assistant U. S. Attorney in New Orleans as follows:

Enclosed are certified copies of the affidavit and minutes reflecting the sentencing of the above individuals by Judge Bagert.
By copy of this letter, I am advising Mr. LeBreton in Sheriff Heyd’s [Criminal Sheriff, Orleans Parish] office that you will expedite matters to have both defendants taken into Federal Custody as soon as practicable.
Thank you for your cooperation.

In April appellant was indicted in the Northern District of Georgia on the federal escape charge. In May he was removed from the local Louisiana jail and sent to that state’s penitentiary. The same month he wrote the Northern District of Georgia demanding a speedy trial on the escape charge or dismissal of it and demanding a return to federal custody. The District Judge then entered an order directing a speedy trial. In June federal authorities sought to have appellant enter a plea to the escape charge in the federal court in Louisiana under Rule 20. Appellant refused. Thereupon federal authorities issued a writ of habe-as corpus ad prosequendum to Louisiana authorities for arraignment of appellant in the Northern District of Georgia. The writ indicated appellant would be returned to Louisiana authorities.

Appellant was brought to the Georgia federal court pursuant to the writ, and, on July 9, 1973, pleaded not guilty to the escape charge and was found guilty. He was sentenced to one year, with no reference to concurrency. While in Georgia in federal custody appellant filed this suit. In addition to matters which we have set out he alleged: (1) that the essence of his Louisiana plea bargain was a waiver of confinement by Louisiana and an immediate return to actual federal custody; (2) that Louisiana, by its sentence and the notation on the sheriff’s records, waived its right to custody; (3) that Louisiana state officials, at the parish jail and at the state penitentiary, have demanded that the United States take him into custody but the United States has not done so; (4) that Louisiana set his bail on the armed robbery charge at $50,000, and being indigent he could not post bond, but had he been financially able to make bond, federal authorities would have picked him up at once, with a result that his federal sentence would have recommenced, and it and the subsequent Louisiana concurrent sentence would then have been served concurrently. Therefore, his incarceration is prolonged because of his indigency.

Appellant was returned to the Louisiana penitentiary before the Georgia federal judge acted on his suit. August 1973 the judge entered an order of dismissal based on the petition and response. The government acknowledges that a federal detainer was lodged with Louisiana state officials for return of Lebosky to federal custody upon his release from state custody and that it remains in effect.

If the federal and state sentences are served concurrently, or if appellant is given federal credit for state time, he will serve approximately 15 years (18 years first federal sentence, less approximately four years served, plus one year on the escape charge) less good time. Otherwise he will serve approximately twice as long.

The District Court did not address itself to what Lebosky in his pro se petition referred to as “waiver of custody” by Louisiana. After being sifted through appellate briefing and oral argument by appointed counsel this contention might be better recharacterized as follows. Louisiana, recognizing the intent of its sentencing judge, desires to satisfy its sentence by the expiration of concurrent time while appellant serves his federal sentence. The federal government may not, on the one hand, by a detainer have Louisiana hold appellant for federal custody at the termination of his state sentence and, on the other hand, frustrate the intent of the Louisiana sentencing authority by declining to accept the custody made available to it by the detainer.

We are not required to speculate as to the federal government’s state of mind. During oral argument government counsel, when asked for an explanation of the federal government’s position in the case, stated in substance that it is not interested in doing favors for a prisoner who has fled federal custody. Appellant, however, asks no favor but rather that he not be whipsawed between the federal government’s right to take him into custody and its refusal to take him into custody, carried out for the purpose of frustrating the intention of the state sentencing judge and thereby imposing upon him a lengthy non-current state incarceration not intended by the state authorities. In this connection we note the response of the government to the petition for mandamus, that Lebosky “should address the State of Louisiana about being released to federal custody.” But the petition alleged that Louisiana officials, at the local jail and at the state penitentiary, have already demanded that federal officials take custody, but that they will not do so.

The government’s reliance upon Opela v. United States, 415 F.2d 231 (CA5, 1969), is misplaced. Opela, in state custody awaiting trial, was released to federal custody, tried and sentenced to five years, and returned to the state. In state court he pleaded guilty and was sentenced to six years, which the sentencing judge intended to run concurrently with all other sentences. The state, however, held Opela in custody until its sentence was satisfied, then released him back to federal custody. Opela then filed a § 2255 petition, asking relief from his federal sentence. We affirmed the District Court’s denial of relief. Opela was the victim of a failure by the state to carry out the sentencing judge’s intention. Federal authorities were not required to rectify that error. Lebosky, on the other hand — if the allegations of his petition are true — is the victim of a refusal by the federal government, which maintains in effect a detainer against him, to take custody from state officials who are' endeavoring to carry out the intent of the state sentencing court.

On appeal there has surfaced in sharpened form another possibility which was little more than hinted at in the District Court. Appellant claims that the office of the U. S. Attorney in New Orleans had knowledge of and perhaps participated in an overall arrangement of which the Louisiana plea bargain was a part, and another part of which was an understanding that the federal authorities would promptly take custody of appellant. Both the District Judge and the government refer to the principle that a prisoner may not question an arrangement between sovereigns concerning the order in which sentences are to be executed. Chunn v. Clark, 451 F.2d 1005 (CA5, 1971). That misses the mark in this instance where appellant says that there has been an agreement, expressed or implied, between sovereigns, which the State of Louisiana stands ready to honor and has called upon the United States to honor, but the United States will not honor, or that, at the minimum, there have been representations by the United States upon which the state relied, inducing the imposition of a state sentence whose concurrency provision cannot be implemented because the federal sovereign will not fulfill its representations. The terms of the state sentence, the entry upon the sheriff’s records, the retention of appellant in the local jail, the letter from appellant’s attorney, and the above quoted notation by the Georgia federal judge in his original order, make appellant’s claim at least not frivolous. Further support would come from proof of the allegation, if true, that Louisiana officials have demanded without avail that the United States take appellant into custody. San-tobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), stands for a constitutional policy that plea bargains, if made, are to be honored. No plea bargain in a federal case has taken place, but if our national government has induced a state plea bargain in a state case by representations that previously imposed federal time and newly imposed state time will be concurrently served, the policy of Santobello would require at least that the federal government not frustrate the state’s provision for concurrency.

It may develop that appellant’s claim of federal frustration of the state sentence, and the assertion of a federal-state understanding or of federal representations upon which appellant or Louisiana relied, are all not well founded. If any one or more are, this is a case of which the United States cannot be proud. The government asserts that appellant should seek relief at the hands of Louisiana, presumably by his asking that the state sentence be vacated or that he be pardoned or paroled. This argument does not address itself to the realities of the situation. The State of Louisiana has its own interests to protect with respect to a 15-year sentence for a serious crime, which it may be willing that appellant serve concurrently, but the State may be unwilling that the sentence be vacated or appellant pardoned or paroled. If the federal government has responsibilities in this case, it should shoulder them without attempting either to abdicate them or to shift them to another sovereign.

Appellant’s claim that his incarceration is prolonged because of his indigen-cy is based upon United States v. Gaines, 449 F.2d 143 (CA2, 1971). Gaines, free on bail pending sentencing after a federal narcotics conviction, was arrested and charged with a state crime. He was returned temporarily to federal custody for sentencing and was given two years. Then, unable to make state bail ($7500), he remained in state jail until the state dismissed the indictment against him. Federal authorities then took him into custody and refused to give him credit for the state jail time, asserting that under 18 U.S.C. § 3568 (“The sentence of imprisonment of any person shall commence to run from the date on which such person is received at the penitentiary . . . for service of such sentence.”) he had never begun to serve his federal sentence. He sued and lost in the District Court and on appeal. The Supreme Court vacated and remanded for “reconsideration in light of position asserted by the Solicitor General.” On remand the Second Circuit wrote: _

After such reconsideration, we are now of the view that Gaines should be credited with the time spent in custody after the state court had set bail. Gaines was unable to enter into federal custody after bail was set in December 1969 solely because he lacked sufficient funds to post bond in the state court which held him in custody. The Supreme Court’s decisions in Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), and Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) indicate that a man should not be kept imprisoned solely because of his lack of wealth. If Gaines had had the money to post the state bond in December 1969 and had then entered federal custody, he would now be eligible for his conditional release. Gaines’ lack of wealth has resulted in his having to serve a sentence that a richer man would not have had to serve, an impermissible discrimination according to Tate and Williams. Accordingly, Gaines ought to be credited with the time spent in state custody after bail was set.
Remanded to the district court for further proceedings in conformity with this opinion.

449 F.2d at 144. The appellant argued Gaines at length in his present petition but the District Court, without referring to that case, said only that the assertions concerning discrimination on the basis of indigency were without merit. On appeal Gaines is urged by the appellant and ignored by the government.

We remand the case for an evidentiary hearing. A number of issues, factual and legal, appear to us appropriate for consideration, (a) Whether the State has demanded or requested that the United States take appellant into custody pursuant to its detainer, (b) Whether the United States played a part, expressed or implied, in any overall arrangement that included as parts thereof the Louisiana plea bargain and an agreement, or representations by the United States, that appellant would be promptly returned to federal custody, (c) Whether under Gaines there is possible merit to the claim of prejudice because of indi-gency. (d) Whether the discretion of the Attorney General of the United States to designate or decline to designate a place of confinement is judicially reviewable under the facts of this case and, if so, whether he has abused his discretion, (e) Whether the existence of the federal detainer adversely affects appellant’s conditions of imprisonment on the state charge with respect to good time, eligibility for parole or probation, or in any other respect, (f) Whether the actions of the federal government violate the appellant’s constitutional protections against deprivation of liberty without due process, double jeopardy and cruel and unusual punishment. Of course, the District Court may well consider other issues appropriate also.

Reversed and remanded.

      . There are numerous references in the cases to the fact that the mere existence of a detainer may have an adverse effect upon the named person’s present conditions of imprisonment and eligibility for parole. Smith v. Hooey, 393 U.S. 374, at 378-379 n. 8, 89 S.Ct. 575, 21 L.Ed.2d 607, at 611-612 n. 8 (1969); Nelson v. George, 399 U.S. 224, 90 S.Ct. 1963, 26 L.Ed.2d 578 (1970); Prince v. Alabama, 507 F.2d 693 (CA5, 1975, No. 73-3108).

      . The Solicitor General’s memorandum is reprinted in Wagner, “Sentence Credit for Dead Time,” 8 Criminal Law Bulletin, pp. 403-04, June, 1972. It suggests that Gaines he given credit on his federal sentence for the state time caused by inability to make bail.

      . 18 U.S.C. § 4082:
      “(a) A person convicted of an offense against the United States shall be committed, for such term of imprisonment as the court may direct, to the custody of the Attorney General of the United States, who slia.ll designate the place of confinement where the sentence shall be served.
      (b) The Attorney General may designate as a place of confinement any available, suitable, and appropriate institution or facility, whether maintained by the Federal Government or otherwise, and whether within or without the judicial district in which the person was convicted, and may at any time transfer a person from one place of confinement to another.” ******


author: GEE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert E. BRITT, Defendant-Appellant.
    No. 74-2001.
    United States Court of Appeals, Fifth Circuit.
    Feb. 28, 1975.
    Rehearing Denied March 24, 1975.

      Charles D. Read, Jr., Decatur, Ga., Richard L. Parker, Atlanta, Ga., for defendant-appellant.
    John W. Stokes, U. S. Atty., E. Ray Taylor, Jr., U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before DYER, MORGAN and GEE, Circuit Judges.
   GEE, Circuit Judge:

Robert E. Britt was charged along with five other individuals in a 27-count indictment. He personally was named in 21 of the 27 counts, each of which charged that a specific individual was induced to travel in interstate commerce to Atlanta, Georgia, in the execution of a scheme to defraud that individual of over $5,000. Three of the six defendants plead guilty to the counts in which they' were charged, one was acquitted, and the charges against another were dismissed by the government. Mr. Britt, the appellant, was convicted by a jury of 14 counts of violáting 18 U.S.C. § 2314.

Britt was the president of Fitts Cotton Goods, a company which specialized in the manufacture of diapers. In the fall of 1970, the company, which at the time was in serious financial straits, began selling distributorships in order to raise much-needed capital. A number of these distributorships were sold, including sales to each of the 27 persons listed in the indictment. According to the evidence, potential distributors- would be summoned to Atlanta. There they were promised that as distributors they would have the exclusive right to a territory after training, with the resulting benefit that each would receive a five percent commission on all sales to existing business in his territory and a ten percent commission on all sales to new business which he acquired for the company. In order to induce potential distributors to purchase territories — the purchase price varied according to the size and supposed lucrativeness of the territory but ranged from $5,000 to $25,000 — Mr. Britt and his co-defendants painted glowing but patently false pictures of the volume of Fitts’ existing business. There is no doubt that figures shown or related to the distributorship purchasers purporting to reflect orders from active accounts currently buying from the company in a given territory were grossly exaggerated. Lists given to the purchasers supposedly containing the names of current accounts, in fact, turned out to be composed, in large part, of retailers who were out of business, were no longer doing business with Fitts, or who had never done business with Fitts to begin with. Most of the distributorship purchasers found that, contrary to what they had been led to believe, they were able to sell few, if any diapers. Most received almost nothing in commissions and, therefore, lost almost their entire investments. Naturally, Fitts never refunded anything to its defrauded diaper distributors.

An investigation was begun after a number of complaints from disgruntled distributorship purchasers were communicated to the FBI. Eventually a search warrant was obtained. The warrant was, basically, for all the business records of Fitts Cotton Goods and named as the place to be searched the ostensible offices of the company, two suites of offices at 3379 Peachtree Road, Atlanta. When FBI agents served the warrant at 3379 Peachtree they were met by a Mr. Brewer, the comptroller of Fitts. After the agents completed their search of 3379 Peachtree, they proceeded to a second address, 1819 Peachtree. Although 1819 Peachtree was not mentioned in the warrant, the agents believed that they had the right to conduct a search there because Mr. Brewer, the comptroller, had, upon questioning, informed them of the existence of Fitts’ offices at 1819, had given them permission to search there, had accompanied them to the address, and had obtained the key and opened the door for them. Mr. Britt, however, moved to suppress all records discovered at 1819 Peachtree, claiming that the search there was not a consent search since Mr. Brewer had given permission under the mistaken impression that the warrant for 3379 authorized the FBI to search all Fitts’ offices, including those at 1819. The trial court, agreeing with Britt, ordered the 1819 evidence suppressed. At the same time, however,' he indicated that “the government may be able to obtain the document from 1819 Peachtree Road by subpoena, warrant or other legal process if it can show that the information forming a basis for such process is in no way tainted by the illegal search and seizure.”

Although a number of papers were seized at 1819 Peachtree and later subpoenaed, only two types of documents found there were used by the government in building its case against Britt. The first of these were invoices from which the government was able to calculate the exact sales volume of Fitts in the various territories — and thus dramatically demonstrate how gross were the exaggerations related to the distributorship purchasers. The second was a list which contained the names and telephone numbers of all Fitts distributors. It is undisputed that a list of Fitts distributors containing the same names but sans telephone numbers was seized during the legal search at 3379 Peachtree. Britt claims, however, that the list with telephone numbers was used, before it was subpoenaed, to contact previously unknown distributors. He says that all investigations based upon the numbered list were fruits of the poisonous tree and that all evidence gathered as a result of these investigations, including especially the testimony of those of the 27 distributors who were unknown to the FBI prior to the seizure, must be suppressed. We hold that all challenged evidence was properly admitted.

We shall briefly summarize the series of moves and countermoves that led to the eventual admission of the testimony of the distributors and the evidence as to sales figures, omitting several which are irrelevant to this appeal. First, appellant moved to suppress on Fourth Amendment grounds. The court granted this motion but suggested that the subpoenaing of the same evidence might be possible. Then the government subpoenaed both the invoices and the numbered distributor list. Appellant moved to quash. This. motion was denied. Next followed appellant’s motion for a protective order, the object of which was to insure exclusion of all evidence seized at or derived from the search at 1819, including everything subpoenaed. This was also denied. Finally, the evidence was admitted at trial over objection only after the court was convinced of the bona fides of the government’s asserted independent bases for its subpoenaing of the invoices and the distributor lists. In the meantime, the government had appealed from the initial suppression order, but early on requested that the appeal be dismissed when if learned that the court would probably uphold the subpoena.

Fortunately, it is not our task to analyze systematically the court’s response to each of these moves and counter mo ves and to judge whether one or some can be reconciled with another or others. We are concerned only with the ultimate question of whether the court erred when, at trial, it admitted evidence over appellant’s objections. If the evidence was admissible, it is immaterial to us and harmless to appellant that the trial court’s particular rationale for admitting it cannot stand close scrutiny. Thus, although we question whether the government demonstrated that it had independent knowledge of the existence of the invoices prior to the time it requested the subpoena and although we doubt that the independent basis theory can support the government use of the numbered list to contact potential witnesses when most of the FBI investigation was apparently conducted during the interim between the time of seizure and suppression, we nevertheless hold that the evidence was properly admitted because we are of the opinion that Mr. Britt did not have standing to challenge the validity of the search and seizure at 1819 Peach-tree Road.

Only a “person aggrieved” by an unlawful search and seizure may move for the return of the seized property and insist that it be suppressed. F.R. Cr.P. 41(e) & (f). We have held that under certain circumstances a corporate officer or employee can be a person aggrieved by a search of corporate premises and a seizure of corporate property. Henzel v. United States, 296 F.2d 650 (5th Cir. 1961). The facts of this case, however, aré much different from those of Henzel. There

. the appellant was the organizer, sole stockholder and president of Chemoil Corporation. Appellant prepared much of the material seized, and this material was kept in his office along with some of his personal belongings. Although he was temporarily absent from his office when it was searched, appellant spent the greater part of every average working day there. Finally, it is undisputed that the search by the Postal Inspector was “directed at” the appellant.

Henzel, at 653. Here, although Britt was president of Fitts, he was not its sole stockholder, the documents seized were normal corporate records not prepared personally by him, and the area searched at 1819 Peachtree Road was described as a “storage area.” Furthermore, there is no evidence that Britt spent any of his time working in the storage area — or in any other space at 1819 Peachtree for that matter — or that any of the material seized there was taken from his personal desk or briefcase or files. He was in the hospital at the time of the search and had been for several months prior to it. Furthermore, there is nothing in the record which would indicate that the searches, either at 3379 or 1819, were directed at him rather than at corporate activity generally. Under such circumstances, we conclude that we should apply the normal rule which is that,

When a man chooses to avail himself of the privilege of doing business as a corporation, even though he is its sole shareholder, he may not vicariously take on the privilege of the corporation under the Fourth Amendment; documents which he could have protected from seizure, if they had been his own, may be used against him, no matter how they were obtained from the corporation. Its wrongs are not his wrongs; its immunity is not his immunity.

Lagow v. United States, 159 F.2d 245, 246 (2d Cir. 1946), cert. denied, 331 U.S. 858, 67 S.Ct. 1750, 91 L.Ed. 1865 (1947). This rule, of course, has been tempered by the holding of the Supreme Court in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), as we explained in Henzel, supra. But it remains applicable in situations similar to the one which we here face in which a corporate officer seeks to suppress ille-gaily-seized corporate records and claims standing essentially simply because he is a corporate officer. Neither Henzel nor Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968) are contra. In both of these cases there was a demonstrated nexus between the area searched and the work space of the defendant. That nexus is absent here.

Appellant raises a number of other alleged errors. We have examined these and found them to be without merit. They are rejected.

Affirmed.

      . 18 U.S.C. § 2314. Transportation of stolen goods, securities, moneys, fraudulent State tax stamps, or articles used in counterfeiting
      ****** Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transports or causes to be transported, or induces any person to travel in, or to be transported in interstate commerce in the execution or concealment of a scheme or artifice to defraud that person of money or property having a value of $5,000 or more;
      ******
      Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
      ******

      . Appellant has never challenged the legality of the first search.

      . We have no doubt that it demonstrated at trial that it could easily have obtained such knowledge.

      . This description, provided by FBI Agent Decker, is undisputed in the record.


author: AINSWORTH, Circuit Judge:

text:
    In the Matter of FONTAINEBLEAU HOTEL CORPORATION, Debtor. SOUTH CENTRAL BELL TELEPHONE COMPANY, Appellant, v. Warren M. SIMON and P. Val Miller, Trustees for Fontainebleau Hotel Corporation, Debtor, Appellees.
    No. 74-3529
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 28, 1975.
    Rehearing and Rehearing En Banc Denied April 28, 1975.

      Raymond J. Salassi, Jr., New Orleans, La., for appellant.
    Edward J. Boyle, Jr., Edward M. Heller, New Orleans, La., for appellees.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   AINSWORTH, Circuit Judge:

South Central Bell Telephone Company appeals from a preliminary injunction, entered by the District Court sitting in bankruptcy, compelling it to provide continued telephone service to the debtor, Fontainebleau Hotel Corporation. Under the plan devised by the District Court, the telephone company is to receive payment in advance for each month’s service and the hotel is to be permitted to retain the telephone numbers it was using before the filing of the petition in bankruptcy. We affirm.

I. Factual Background

The telephone company has been providing service to the Fontainebleau Hotel for some time. In July 1974, the hotel fell behind on its bills. On August 1, 1974, the hotel filed a petition for reorganization under Chapter X of the Bankruptcy Act. The hotel then owed the telephone company slightly more than $9,000 in unpaid bills, which the company had taken no steps to collect. The company notified the bankruptcy trustees of this debt and gave them two alternatives, based on procedures described in its tariff on file with the Louisiana Public Service Commission: pay the outstanding prebankruptcy debt and continue with the existing service, or begin with new service under a new set of telephone numbers. In either case, the company insisted upon a substantial deposit as a precondition to further service.

The trustees immediately filed an application for injunctive relief with the bankruptcy court, asking that the company be enjoined from requiring payment of the overdue bill and a deposit as a precondition to continued service under the existing set of telephone numbers. Keeping the present numbers is important to the hotel because it has invested substantial sums in advertising that lists the numbers. Also, the telephone company would not provide the new number, technically assigned to the trustees, to callers who telephone the hotel’s old number. The company has virtually conceded that it has no business purpose in changing the numbers, other than coercing the payment of this debt. The bankruptcy court found that the hotel’s business would be substantially impaired if it could not keep the present numbers, and granted the trustees’ application for an injunction.

II. Issues on Appeal

The telephone company raises these issues on appeal: (A) that the bankruptcy court lacked summary jurisdiction to enter the injunction; (B) that even if jurisdiction was proper, the bankruptcy court erred in entering the injunction because the telephone company is empowered under its tariffs to change telephone numbers and require deposits of subscribers; (C) that alternatively the company has a right to priority on this debt under the so-called “necessity of payment rule” or “six months rule”; (D) that the hotel did not carry its burden of proving the necessity of the injunction; and (E) that at the very least the bankruptcy court should have required the hotel to post a security bond to insure that the telephone company would not ultimately be deprived of its money.

A.

The District Court’s action on the trustees’ application for a preliminary injunction was a summary, rather than a plenary, proceeding. Collier, Trustees’ and Receivers’ Handbook § 2.007. The Bankruptcy Act provides that “[wjhere not inconsistent with the provisions of this chapter [ten], the court in which a petition is filed shall, for the purposes of this chapter [ten], have exclusive jurisdiction of the debtor and its property, wherever located.” This provision grants summary jurisdiction to the bankruptcy court in order to assure a speedier resolution of disputes over insolvent estates. See Collier, supra, at § 2.007.

For the bankruptcy court to have summary jurisdiction, the debtor or his trustee must have possession, constructive or actual, of the property in question. He need not, however, have title to the property. In construing identical language in the bankruptcy provisions relating to railroad reorganization, the Supreme Court has said

Bankruptcy courts have summary jurisdiction to adjudicate controversies relating to property over which they have actual or constructive possession. And the test of this jurisdiction is not title in but possession by the bankrupt at the time of the filing of the petition in bankruptcy.

Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 481, 60 S.Ct. 628, 630, 84 L.Ed. 876 (1940); see In re Rehkopf Mattress Sales, Inc., 5 Cir., 1973, 479 F.2d 67, 70; Schokbeton Industries, Inc. v. Schokbeton Products Corp., 5 Cir., 1972, 466 F.2d 171, 177; Willyerd v. Buildex Company, 6 Cir., 1972, 463 F.2d 996, 999. The same test applies in Chapter X proceedings:

It is often said that the touchstone the bankruptcy court’s jurisdiction is possession, either actual or constructive, of the property involved in the controversy. . . . Thus, if the receiver or the trustee has physical possession of the property involved in the controversy, the power of the bankruptcy court to deal with this property in a summary fashion is clearly established. Collier, supra, at § 2.008. of

The question thus is, did the hotel have “possession” of the telephone numbers in question at the time the petition was filed? Right of use is surely the most important attribute of possession, and the hotel clearly had the right of use as to these telephone numbers at the time the petition in bankruptcy was filed.

Two other circuits have held that the right to use a telephone number does not constitute possession of that number. See In re Best Re-manufacturing Co., 9 Cir., 1971, 453 F.2d 848; Slenderella Systems of Berkeley, Inc. v. Pacific Telephone and Telegraph Co., 2 Cir., 1960, 286 F.2d 488. Both of these cases are extremely brief discussions of the issue, however, and we believe they should not be followed. They rely heavily on the fact that, as in this case, the telephone company tariffs recited that a subscriber acquires no property rights in a telephone number when he is permitted the use of it. A tariff, however, drafted by the company and certain to be self-serving, cannot determine the meaning of the term “property” in the federal bankruptcy statute. The telephone numbers are a valuable asset, just like the hotel’s building or furniture. The purpose of summary jurisdiction is to give the bankruptcy court a quick means of preserving the wherewithal for maintaining the debtor’s business. Protecting use of the telephone numbers by the debtor clearly falls within that responsibility.

B.

Once the issue of the bankruptcy court’s power, jurisdictionally, over the property is resolved, its authority to issue protective orders against interference with that property follows naturally. It also follows that the telephone company’s tariffs do not stand in the way of the injunction issued by the bankruptcy court. The tariffs, and the relevant portions of state law, do not compel the company to issue new numbers when service is transferred from one subscriber to another (here, from the hotel to the trustees), or to demand a deposit. Rather they only give the company the right to do these things. In this regard the tariffs and related laws are no different from any state law granting a party a right against a debt- or. If a debtor becomes delinquent on a loan payment, for example, the creditor is entitled, under state law, to recover a judgment on the debt. If the creditor has not done so by the-time a bankruptcy petition is filed by the debtor, however, his state law right is subordinated to the federal bankruptcy laws (assuming of course that the creditor does not hold a security interest in any of the debtor’s property). The telephone company has offered no cogent reason why it should be treated differently. Before the filing of the petition, it had certain rights under state law. After the filing of the petition, the demands of the bankruptcy laws take precedence. If a creditor, like the telephone company, could continue to enforce his state law rights after the initiation of bankruptcy proceedings, the bankruptcy laws would be meaningless. Their very purpose is to suspend the normal operation of rights and obligations between the debtor and his creditors.

The Third Circuit has expressed a similar view in a case very much like the present one. A utility company was owed $1,200,000 by the bankrupt Penn Central Transportation Company. The court observed:

Con Ed has the security of a Court order directing the Trustees to make current payments. All the current bills are being honored. ... If Con Ed is entitled to require a security deposit, then so are all of the other 40-odd utilities which furnish substantial amounts of power to the railroad; yet requiring such deposits would likely make it financially impossible for the railroad to operate at all. The provisions of state law must yield to § 77 [the predecessor of Chapter Ten, for railroads] on this issue.
In re Penn Central Transportation Co., 3 Cir., 1972, 467 F.2d 100, 103.

C.

The six months rule is a judicially' created priority granted in Chapter X proceedings to certain creditors of public and quasi-public enterprises providing essential services to the public. Those who extend credit to such enterprises within six months of the filing of a bankruptcy petition under Chapter X take priority over unsecured creditors. See In re Hallmark Medical Services, Inc., 5 Cir., 1973, 475 F.2d 801, 803-804. Even assuming the telephone company is among the class of creditors the rule is designed to benefit, however, the six months rule does not create a right to payment of pre-bankruptcy debts before a plan of reorganization or distribution is adopted. Rather it creates a priority based on whatever plan is eventually adopted. In re Penn Central Transportation Company, E.D.Pa., 1971, 328 F.Supp. 1276, 1278. Therefore the telephone company’s invocation of the six months- rule, even if correct on the merits, is premature.

D.

In determining whether the hotel carried its burden of establishing the need for a preliminary injunction, we must stay within the limited scope of review that governs appeals from such orders. “The granting or denying of a preliminary injunction is within the discretion of the trial Judge, ‘in the exercise of which the court balances the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction.’ ” Wooten v. Ohler, 5 Cir., 1962, 303 F.2d 759, 761-762, and cases cited therein [quoting Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 675, 88 L.Ed. 834 (1944)]; Nalco Chemical Co. v. Hall, 5 Cir., 1965, 347 F.2d 90, 92; Delaware & Hudson Railway Co. v. United Transp. Union, 1971, 146 U.S.App.D.C. 142, 450 F.2d 603, 619 (standard of review is “whether the trial judge abused his discretion in granting the injunction, or rested his analysis upon an erroneous premise”); Commonwealth of Pa. ex rel. Creamer v. U. S. Dep’t of Agr., 3 Cir., 1972, 469 F.2d 1387, 1388; National Land & Investment Company v. Specter, 3 Cir., 1970, 428 F.2d 91, 95 (standard of review is “whether there has been an abuse of [the court’s] discretion, whether there was an error of law or whether a clear mistake was made in the consideration of the proof”); Impeach Nixon Committee v. Buck, 7 Cir., 1974, 498 F.2d 37, 40; Allied Theatre Owners of Indiana, Inc. v. Volpe, 7 Cir., 1970, 426 F.2d 1002, 1003; Washington Capitols Basketball Club, Inc. v. Barry, 9 Cir., 1969, 419 F.2d 472, 476 (abuse of discretion is, in this context, “a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.”); Nashville I-40 Steering Committee v. Ellington, 6 Cir., 1967, 387 F.2d 179, 182. Under any of these formulations of the standard of review, we believe the District Court quite properly relied on its familiarity with the debtor’s financial circumstances as presented in the Chapter X proceedings. On the basis of this familiarity the Court determined that releasing $10,000 in operating capital or enduring the disruption, confusion and expense caused by changing the telephone numbers were unacceptable alternatives from which to choose, We find no error in his determination.

E.

Usually applicants for preliminary injunctions must provide some form of security or bond in order to assure indemnification of any party wrongfully enjoined. Fed.R.Civ.P. 65(c). The Federal Rules also provide, however, that “These rules do not apply to proceedings in bankruptcy or proceedings in copyright under Title 17, U.S.C., except in so far as they may be made applicable thereto by rules promulgated by the Supreme Court of the United States.” Fed.R.Civ.P. 81(a)(1). General Order in Bankruptcy No. 37, promulgated by the Supreme Court and kept in force as to Chapter X proceedings by General Order in Bankruptcy No. 52 despite General Order 37’s abrogation in other contexts, states “In proceedings under the [Bankruptcy] Act the Rules of Civil Procedure for the District Courts of the United States shall, in so far as they are not inconsistent with the Act, be followed as nearly as may be . . ..” Several courts have found application of Rule 65(c) to summary bankruptcy proceedings to be inconsistent with the purposes of the Bankruptcy Act. See Magidson v. Duggan, 8 Cir., 1950, 180 F.2d 473, 479; Grenchik v. Mandel, D.Md., 1973, 373 F.Supp. 1298, 1302 n. 10; In re J. S. Gissel & Co., S.D.Tex., 1965, 238 F.Supp. 130, 134. Compare Halpert v. Engine Air Service, 2 Cir., 1954, 212 F.2d 860, 863, with Ferguson v. Bucks County Farms, Inc., 3 Cir., 1960, 280 F.2d 739, 744-746; Chatz v. Freeman, 7 Cir., 1953, 204 F.2d 764, 767-768. We believe these courts have correctly chosen not to compromise the bankruptcy court’s ability to act in aid of its own jurisdiction.

We note that our decision does not determine the rights of the telephone company in any final sense. Rather we have required simply that the company wait, along with the hotel’s other creditors, until a plan of reorganization is adopted. In the meantime, the trustees of this bankrupt must be given the latitude they need to revive the failing business.

Affirmed.

      . In the cases cited by the telephone company in which the courts have considered applying the six months rule, a plan of reorganization had already been adopted. In re Hallmark Medical Services, Inc., supra; Dudley v. Mea-ley, 2 Cir., 1945, 147 F.2d 268, 271, and cases cited therein.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Glenn Lavone SPIVEY, Defendant-Appellant.
    No. 74-3285
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 28, 1975.

      James D. Brooks, Mobile, Ala., for defendant-appellant.
    Charles S. White-Spunner, U. S. Atty., Irwin W. Coleman, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.
    Before COLEMAN, AINSWORTH and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Appellant, Glenn Lavone Spivey, was convicted after a bench trial on six counts of concealing stolen motor vehicles in interstate commerce, knowing the same to have been stolen, in violation of Title 18, U.S.C. § 2313. He seeks reversal of his conviction alleging there was insufficient evidence, he should have been granted a new trial and he had ineffective assistance of counsel. We find these claims of error to be without merit and affirm the conviction.

Spivey went to trial charged in six counts, under Title 18, U.S.C. § 2312, of transporting, and six counts under Title 18, U.S.C. § 2313, of concealing stolen motor vehicles in interstate commerce. The trial judge acquitted him as to the six counts charging unlawful transportation. The stolen character of the vehicles was stipulated at trial; five vehicles were from Pascagoula, Mississippi, and one was from Pensacola, Florida. The serial number plates on five of the vehicles had been altered. Three of the vehicles were bought and sold on the same day, while the other three were sold within three to five days. Appellant admitted each of the vehicles had been in his custody, but stated he bought the vehicles from one Gene Black, an alleged salesman for Massey Chevrolet. The first reference to Black was in Spivey’s testimony at trial, with no indication of a prior attempt to locate him. Spivey apparently located Black after trial, and his discovery and availability were the basis for appellant’s new trial motion.

When appellant took the stand he stated he had kept the vehicles for at least one day to one week, but did not explain the discrepancies on the bills of sale. His testimony also conflicted with that of car dealers to whom he had sold the stolen cars as to the number of cars he had sold them over the time period involved.

Title 18, U.S.C., § 2313 requires knowledge that the vehicle received or concealed was stolen. There is a common law presumption that “an inference of guilty knowledge may be drawn from the fact of unexplained possession of stolen goods.” Barnes v. United States, 1973, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380. A defendant’s explanation of his possession of recently stolen goods does not necessarily overcome this permissible inference of guilty knowledge because the trier of fact is entitled to judge the credibility of the defendant’s explanation and assign to the evidence whatever weight he believes it is entitled to. United States v. Smith, 5 Cir. 1974, 502 F.2d 1250; United States v. Fairchild, 5 Cir. 1975, 505 F.2d 1378.

The test on appeal as to whether or not circumstantial evidence was sufficient to support a conviction has been stated by this court in a number of cases. See typically Judge Wisdom’s statement in United States v. Warner, 5 Cir. 1971, 441 F.2d 821, 825, cert. denied, 1972, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58:

“[I]n criminal cases based on circumstantial evidence our task is to deter- ■ mine whether reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the accused’s innocence.”

See also United States v. Black, 5 Cir. 1974, 497 F.2d 1039; United States v. Amato, 5 Cir. 1974, 495 F.2d 545; United States v. Velasquez, 5 Cir. 1974, 496 F.2d 1009; United States v. Edwards, 5 Cir. 1974, 488 F.2d 1154; United States v. Fontenot, 5 Cir. 1973, 483 F.2d 315.

As we said in Fontenot, supra, weighing the sufficiency of the evidence in a circumstantial evidence case does not depend upon whether “in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis, but that of guilt, but rather whether the jury might reasonably so conclude.” In the present case, of course the test must be whether the trial judge could reasonably so conclude. The evidence against Spivey of the altered number plates, of the discrepancies in bills of sale and other surrounding circumstances, together with the permissible inference from his possession of recently stolen automobiles sufficed to meet the stated test. Viewed in the light most favorable to the government the evidence was sufficient to establish appellant’s guilt. Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680.

Appellant next alleges the court erred in not granting a new trial when the missing Mr. Black was located. In United States v. Jacquillon, 5 Cir. 1972, 469 F.2d 380, cert. denied, 410 U.S. 938, 93 S.Ct. 1400, 35 L.Ed.2d 604, we set forth the criteria for granting a new trial on the ground of newly discovered evidence. The evidence must not only be newly discovered, but the motion must also allege facts showing diligence on the part of the movant, and the evidence must not be merely cumulative and impeaching, it must be material, and it must be such that a new trial would be likely to change the result by producing an acquittal.

Appellant has not met this burden. Black was never mentioned to the authorities until appellant took the stand at trial and testified that he purchased five of the vehicles in question from Gene Black, and that he had bought fifty vehicles from Black in the past without trouble. No real show was made of diligence in trying to locate Black. Additionally, Black’s testimony would have been merely cumulative. Appellant was convicted of knowingly concealing stolen motor vehicles; Black’s testimony would not have tended to disprove the charge. This issue is without merit.

Finally appellant alleges his trial counsel was ineffective, that he stipulated to much of the evidence, did not object to other evidence, and conducted only perfunctory examinations of witnesses. In United States v. Goldsmith, 5 Cir. 1973, 483 F.2d 441, 443, we said: “A conviction will not be set aside on the ground of incompetent counsel, however, merely because an attorney may have erred on occasion when he rendered reasonably effective assistance. Sloan v. Wainwright, 5 Cir. 1972, 469 F.2d 390.” A careful review of the record here reveals no basis for the claim that appellant was denied a fair trial by reason of ineffective assistance of counsel.

We find no other errors of law.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Betty Simpson BOERNER et al., Defendants-Appellants.
    No. 74-2468.
    United States Court of Appeals, Fifth Circuit.
    Feb. 27, 1975.

      Valentine Gabaldon, West Palm Beach, Fla. (Court-appointed), for Betty Boer-ner.
    Andrew I. Friedrich, West . Palm Beach, Fla. (Court-appointed), for Paul Boerner.
    Daniel S. Pearson, Miami, Fla. (Court-appointed), for James Beauford.
    Robert W. Rust, U. S. Atty., Don R. Boswell, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before BELL, AINSWORTH and RO-NEY, Circuit Judges.
   AINSWORTH, Circuit Judge:

James William Beauford, Betty Simpson Boerner and her son, Paul Winston Boerner, appeal from convictions following a jury verdict of guilty of violations in connection with the immigration laws of the United States. The indictment charged appellants with wilfully and knowingly conspiring to bring into the United States by means of a vessel a number of aliens not lawfully entitled to enter the United States, in violation of 8 U.S.C. § 1324. Beauford was additionally charged with twenty-two substantive offenses, in violation of 8 U.S.C. § 1324(a)(1), relating to the actual transportation of the aliens on October 17, 1973 and December 3, 1973, nine of which counts were subsequently dismissed by the Government. The jury found all defendants guilty of conspiracy and further found Beauford guilty of the substantive offenses. Betty Boerner was sentenced to eighteen months’ probation; Paul Boerner to two years’ probation; and Beauford to five years on the conspiracy count and three years each on the thirteen substantive counts, his sentences to run concurrently.

Appellants filed separate appeals, alleging numerous errors, all of which we find without merit.

The Government called as its witnesses three United States Border Patrol Agents, two of appellants’ coconspirators (Richard Schupp, Jr. and James Fowler) and ten of the aliens who had been transported from Nassau to the United States aboard a vessel owned and operated by Beauford. The following facts were established:

In the summer of 1973 at Miami, Florida, Beauford employed Schupp as an extra crewman to assist him in transporting Haitians from Nassau to the United States aboard his yacht ECHO, also known as MINK, QUEEN B and C GULL. Beauford took Schupp to the vessel where Schupp first met Betty Boerner. Approximately a month later Schupp introduced Fowler to Beauford who offered Fowler similar employment. Fowler’s duties also consisted of painting and carpentry work aboard the vessel for the purpose of camouflaging its appearance. The vessel subsequently departed from Miami for Nassau.

On October 16, 1973, after sunset, Schupp, Fowler and the three defendants began loading Haitians aboard the vessel at Nassau. Paul Boerner assisted in transporting the Haitians to the yacht in a car rented by Betty Boerner. As the passengers boarded the vessel, Beauford and Betty Boerner collected approximately $350 to $400 from each for their passage. After the money was counted by Beauford and the two Boerners, the passengers were issued a ticket and led out of sight below deck. The money was placed in Betty Boerner’s purse and she and Paul left the vessel. Between 10 and 11 p. m., after having been loaded with approximately sixty-seven aliens, the vessel with Beauford, Schupp and Fowler aboard, departed for the United States. It reached port the following night after dark and docked in the in-tracoastal canal at Boca Raton, Florida, alongside a house abutting the canal, where Paul and Betty Boerner were waiting. After taking precautions to assure they were not observed, the three defendants, Schupp and Fowler helped disembark the passengers and directed them to the house, from which they were later placed in the back of a U-Haul truck, rented by Betty Boerner, for the purpose of driving the aliens to Miami, Florida. Schupp drove the truck, with Fowler and Betty Boerner occupying the cab seat, and with approximately sixty-seven aliens concealed in the rear. Schupp was stopped and arrested in Miami for a traffic violation and later supplied information to the United States Border Patrol Agents concerning the venture. The vessel was thereafter kept under surveillance. It was observed the following month on November 30 by a United States Border Patrol Agent stationed at Nassau, who saw Beauford and Betty Boerner transporting people to the vessel periodically throughout that night up until December 2 when the vessel again departed the area. The Border Patrol at Miami was informed of the departure of the vessel and advised to start preparations to intercept it. The following day the vessel was sighted at a marina .at Jupiter, Florida. Agents boarded the vessel and arrested Beau-ford. Twenty-seven aliens were found aboard. Paul Boerner was arrested at the parking lot of the marina.

Appellants contend that 8 U.S.C. § 1324(a)(1) violates the due process clause of the United States Constitution because it fails to require that the offense of bringing in aliens within the United States be committed with knowledge that such alien was not lawfully entitled to enter or reside within the United States.

The literal text of subsection (1) of section 1324(a) does not specify as a requisite for the offense that a person act knowingly, whereas the remaining subsections of the statute, (2), (3) and (4), expressly make such a requirement. We noted this anomaly in Bland v. United States, 5 Cir., 1962, 299 F.2d 105, 106 n. 1. In Bland defendants were charged and convicted under the same subsection of the statute which we are considering here. As in the instant case, both the indictment and the instructions of the trial court charged knowledge as an element of the offense. After, retiring to deliberate, the jury in Bland requested the trial judge to repeat the reading of the statute. The judge complied with a literal reading of the subsection, but failed to repeat to the jury the requirement of guilty knowledge. In considering the constitutionality of the subsection, we said:

In his original charge the District Judge had correctly taken the position that guilty knowledge was a material element of the offense, since the indictment charged it, and for the further reason that the statute would be unconstitutional if construed so as to permit a finding of guilt without such knowledge. But upon request for further charges he failed and refused to remind the jury of this requisite matter of proof, upon the stated ground that the statute was all that the jury had requested to hear.

299 F.2d at 108. (Emphasis supplied.) We reversed the convictions because of the prejudice to the rights of appellants resulting from the failure of the trial judge to do more than reread the statute involved. Unlike Bland, appellants in the present case suffered no prejudice. The District Court recognized that guilty knowledge was essential to the offense and so charged the jury.

We follow, as we must, the well-established rule that statutes must be construed, wherever fairly possible, to avoid constitutional infirmities. United States ex rel. Atty. Gen. v. Delaware & H. Co., 213 U.S. 366, 29 S.Ct. 527, 53 L.Ed. 836 (1909); United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971); Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974).

As we said in Bland, supra, a reasonable construction of section 1324(a)(1) requires guilty knowledge in order to sustain the constitutional validity of the statute. Absurd results would follow if we were to construe the statute as requiring knowledge as a prerequisite for conviction in subsections 2, 3 and 4 of section 1324(a) and eliminating that requirement in subsection 1. It would be unreasonable to believe that Congress so intended.

The further contention made by Beauford that the indictment failed to charge guilty knowledge is not supported by the record. The conspiracy and the substantive charges in the indictment are explicitly predicated on Beauford acting “knowingly and wilfully.” We decline to accept appellant’s strained interpretation that the indictment fails sufficiently to allege an offense because the terms “wilfully” and “knowingly” are not repeated to modify each and every element of the offenses contained within the separate counts.

The additional errors alleged, either in common by appellants or individually, warrant little discussion.

Appellants’ attack on the sufficiency and quality of the evidence presented to the Grand Jury is foreclosed by the decision of the Supreme Court in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956) and our recent decisions in United States v. Newcomb, 5 Cir., 1974, 488 F.2d 190, and United States v. Cruz, 5 Cir., 1973, 478 F.2d 408.

We find no merit to Paul Boerner’s contention that the prejudice caused by the testimony of Richard Schupp [it was actually the testimony of Fowler] that Boerner had brought Haitians to the ship in Nassau at times prior to the dates alleged in the indictment, was not cured by the District Court’s cautionary instruction and that his motion for a mistrial should have been granted. The evidence of appellant’s guilt was overwhelming and the cautionary instruction given by the trial judge completely cured any possible prejudice which might have occurred.

Equally without merit is the contention of Paul Boerner that the Government failed to prove that he knew that the Haitians brought into the United States were not lawfully entitled to enter. Evidence of the exorbitant price demanded for the aliens’ passage, and the surreptitious manner in which they were loaded onto the vessel, crowded into its hold, unloaded at a place remote from United States Customs inspection, and concealed in the rear of the U-Haul truck, all activities in which Paul Boerner fully participated, provided ample support for an inference of guilty knowledge.

There was no impropriety in the trial court’s charge that the most important way to determine the credibility of witnesses is through common sense. The Court’s statement supplemented the usual and proper instruction on judging the credibility of witnesses, and taken as a whole the charge was clearly correct.

The Boerner appellants finally contend that the trial court erred in failing to give a complete instruction on circumstantial evidence and specifically to instruct that such evidence “must exclude every reasonable hypothesis except that of guilt” or that it “must exclude every hypothesis of innocence.” This Court has on numerous occasions said that “unless the trier of fact could reasonably find that the evidence excludes every reasonable hypothesis except that of guilt,” a conviction based on circumstantial evidence must be reversed. As a reviewing court this is the standard we-apply to test the sufficiency of the evidence. This is not to say, however, that the jury must be instructed on the “reasonable hypothesis” standard. To the contrary, where, as here, the trial judge gives a proper charge on reasonable doubt and further charges that the Government must prove each element of each offense charged beyond a reasonable doubt regardless of whether the evidence is direct or circumstantial, the “reasonable hypothesis” instruction tends only to confuse the jury. See Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954); United States v. Squella-Avendano, 5 Cir., 1973, 478 F.2d 433; United States v. Stokes, 5 Cir., 1973, 471 F.2d 1318; United States v. Middlebrooks, 5 Cir., 1970, 431 F.2d 299.

Affirmed.

      . Fowler, a co-indictee of appellants, pled guilty and was sentenced to two years’ probation. Schupp was named in the indictment as an unindicted coconspirator.

      . Of the ten aliens who testified, nine were Haitians; one was a Jamaican.

      . It was Beauford’s announced plan to escape detection of the United States Coast Guard by entering at night.

      . The full text of 8 U.S.C. § 1324 follows:
      (a) Any person, including the owner, operator, pilot, master, commanding officer, agent, or consignee of any means of transportation who—
      (1) brings into or lands in the United States, by any means of transportation or otherwise, or attempts, by himself or through another, to bring into or land in the United States, by any means of transportation or otherwise;
      (2) knowing that he is in the United States in violation of law, and knowing or having reasonable grounds to believe that his last entry into the United States occurred less than three years prior thereto, transports, or moves, or attempts to transport or move, within the United States by means of transportation or otherwise, in furtherance of such violation of law;
      (3) willfully or knowingly conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, in any place, including any building or any means of transportation; or
      (4) willfully or knowingly encourages or induces, or attempts to encourage or induce, either directly or indirectly, the entry into the United States of— any alien, including an alien crewman, not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the United States under the terms of this chapter or any other law relating to the immigration or expulsion of aliens, shall be guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $2,000 or by imprisonment for a term not exceeding five years, or both, for each' alien in respect to whom any violation of this subsection occurs: Provided, however, That for the purposes of this section, employment (including the usual and normal practices incident to employment) shall not be deemed to constitute harboring.
      (b) No officer or person shall have authority to make any arrest for a violation of any provision of this section except officers and employees of the Service designated by the Attorney General, either individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws.

      . In context of this contention we note that on direct examination Fowler answered that appellant had brought Haitians to the ship in Nassau. He was then asked:
      Q. Do you recall how he got them there?
      A. This was on prior trips to this one. An objection was made and sustained and the trial judge immediately cautioned the jury to disregard the statement and further instructed them on the irrelevance of such testimony.

      . See United States v. Edwards, 5 Cir., 1974, 488 F.2d 1154; United States v. Horton, 5 Cir., 1973, 488 F.2d 374; United States v. Squella-Avendano, 5 Cir., 1973, 478 F.2d 433; United States v. Sidan-Azzam, 5 Cir., 1972, 457 F.2d 1309; United States v. Garza, 5 Cir., 1970, 426 F.2d 949.