author: WINTER, Circuit Judge:

text:
    UNITED STATES of America, By Ramsey CLARK, Attorney General, Appellant, v. CHESTERFIELD COUNTY SCHOOL DISTRICT, CHESTERFIELD COUNTY, SOUTH CAROLINA, et al., Appellees.
    No. 73-1141.
    United States Court of Appeals, Fourth Circuit.
    Argued June 6, 1973.
    Decided Sept. 10, 1973.
    Brian K. Landsberg, Atty., U. S. Dept, of Justice (J. Stanley Pottinger, Asst. U. S. Atty. Gen., Thomas M. Keeling and Samuel J. Flanagan, Attys., U. S. Dept, of Justice, and John K. Grisso, U. S. Atty., on brief), for appellant.
    H. Simmons Tate, Jr., Columbia, S. C. (Boyd, Knowlton, Tate & Finlay and J. Donald Dial, Jr., Columbia, S. C., on brief), for appellees.
    (Richard M. Sharp, David Rubin and Shea & Gardner, Washington, D. C., on brief, The National Education Assn, and the South Carolina Education Assn., amicus curiae. Daniel R. McLeod, Atty. Gen., of South Carolina, Hardwick Stuart, Jr., Asst. Atty. Gen., on brief for The State Superintendent of Education and the State Attorney General, amicus curiae).
    Before WINTER and WIDENER, Circuit Judges, and KAUFMAN, District Judge.
   WINTER, Circuit Judge:

In the course of effecting a court-ordered plan of desegregation, defendants dismissed ten black teachers who had been continuously employed for many years. One of the ten was a “B” certificate teacher who was purportedly dismissed for cause. The remaining nine were “C” certificate teachers who were dismissed because of a newly adopted policy against employing “C” certificate teachers.

By motion for supplemental relief in which it alleged that the dismissals were racially discriminatory, the United States, which had instituted the main desegregation case, sought reinstatement of the teachers with back pay and restoration of other benefits, the district court denied relief. It concluded that there was no evidence that the “B” certificate teacher, Mrs. Mary T. Funder-burk, was discharged for racial reasons. It found also that the nine “C” certificate teachers were dismissed as a result of the application of a racially non-discriminatory policy to upgrade faculty and improve the quality of public education. We agree with respect to Mrs. Funderburk, but disagree with respect to the remaining nine. Accordingly, we affirm in part and reve/áe in part, remanding for further proceedings.

I.

The desegregation plan for the defendant schoordistrict was approved by the district' court by its orders dated September 30, 1969 and May 26, 1970, for implementation in the 1970-71 school year. An earlier attempt to achieve voluntary or negotiated desegregation for the previous school year had failed because of opposition from the white community. Freedom of choice, although ineffective to achieve a unitary system, had begun in the 1965-66 school year. During the school years 1967-68 to 1970-71, there was an overall decline of eleven in the total number of teachers in the system. There was a more marked and continuing decline in the number of black teachers and the sys-temwide percentage of black teachers. During the three-year period, the number of black teachers decreased by forty-six, while the number of white teachers increased by thirty-five; and the percentage of black teachers decreased from 37.8% to 25.9%, with corresponding increases in the percentages of white teachers.

In the Chesterfield County school system there is a yearly determination of whether to rehire or to terminate each teacher. Prior to the 1970-71 school year, the determination was made by the Chesterfield County Board of Education •upon the recommendation of the local advisory council for the school in which a teacher was employed. The advisory council usually based its recommendation upon that of the principal of the school, who completed a uniform rating sheet, devised by the Director of Instruction, on which his recommendation was set forth. The policy not to rehire “C” certificate teachers (except where higher grade teachers were not obtainable) was initiated by the Superintendent of the system on October 20, 1969, to be applicable to the school year 1970-71. The Board of Education did not formally adopt it, but the policy was nevertheless followed by the advisory councils.

The nine “C” certificate teachers were not rehired in accordance with this policy. Six of them were recommended for rehiring by their principals. Three were not, but solely because their superintendents believed that the policy made what would have been their recommendation to rehire them superfluous. Eight of the nine teachers had had from four to thirty years’ teaching experience, the total teaching experience of the ninth being unknown; and two of the eight had four years’ experience — one, six years’ experience; two twenty-six years’ experience; and one, twenty-seven years’ experience — in the Chesterfield schools. No white teacher was not rehired as a result of defacto adoption and application of the policy.

To teach in the public schools of South Carolina, a person must have a teaching certificate issued by the State Board of Education. So far as is pertinent here, the State Board issues certificates graded from “A” through “D”, based upon a teacher’s score on the common examination of the National Teachers’ Examination (hereafter NTE). An applicant for a South Carolina teacher’s certificate must take the NTE. He may take it as many times as he desires, and his best score is used to determine the grade of his certificate. A certificate, once issued, remains valid for an indefinite period unless it is supplanted by a certificate of a higher grade. The score requirements for the various grades have been raised prospectively four times since 1945, but the changes did not affect the grades of outstanding certificates obtained under the previously lower score requirements.2 The grade of certificate that an applicant obtains has no apparent effect on the teaching duties which may be assigned him, but it is a measure of the degree of state financial contribution toward his salary.

Because South Carolina has at different times assigned different letter grades to the same NTE scores, defendants, for the 1970-71 school year, retained twenty-six teachers (fifteen black and eleven white) holding “B” certificates, who in fact had numerical NTE scores identical to or lower than the nine black teachers who were not retained because they had “C” certificates. In addition, three new “B” teachers were hired whose numerical NTE scores were lower than those of the nine “C” teachers who were not retained.

Other facts will be stated in the portion of the opinion to which they relate.

II.

There should first be stated some general principles which are relevant to the decision of a case of this type.

From the facts, it is clear that the teachers were discharged as part of, or at least contemporaneously with, the transition from a formerly state-mandated dual system of schools to a unitary system. It is clear also that for the 1970-71 school year, the year scheduled for completion of the transition, as well as earlier years when the effect of Green v. New Kent County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), on defendants’ freedom of choice plan became apparent, a disproportionately large number of black teachers were suddenly discharged. Our holdings in such circumstances require the School Board to demonstrate by clear and convincing evidence that the discharge of the teachers was not racially motivated; otherwise, they must be reinstated with back pay. Chambers v. Hendersonville City Board of Education, 364 F.2d 189, 192 (4 Cir. 1966); Wall v. Stanly County Board of Education, 378 F.2d 275 (4 Cir. 1967); North Carolina Teachers Association v. Asheboro City Board of Education, 393 F.2d 736 (4 Cir. 1968). These holdings have been approved in Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). There, the Supreme Court described the sort of showing that it is necessary for the school authorities to make in such circumstances :

In discharging that burden [to justify the conduct of a school board by clear and convincing evidence], it is not enough, of course, that the school authorities rely upon some allegedly logical, racially neutral explanation for their actions. Their burden is to adduce proof sufficient to support a finding that segregative intent was not among the factors that motivated their actions.

93 S.Ct. at 2698. Defendants’ good faith is an important factor, but it is not a determinative factor unless and until complete absence of racially discriminatory intent is also shown.

A second principle to be reckoned with is the holding in Griggs v. Duke Power Co., 401 U.S. 424, 431-432, 91 S.Ct. 849, 853-854, 28 L.Ed.2d 158 (1971), that

If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.
Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question. ■

We followed this holding in Robinson v. Lorillard Corporation, 444 F.2d 791, 798 (4 Cir.), cert, dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971), and Moody v. Albemarle Paper Company, 474 F.2d 134, 138 (4 Cir. 1973). Griggs, Robinson and Moody dealt with initial employment and promotion, but the principle of those cases is equally applicable to the discharge of employees or the failure to reemploy. Of course, Griggs, Robinson and Moody were decided under Title VII of the Civil Rights Act of 1964 and the instant case arises under the fourteenth amendment. But it has been held, and we think correctly, that the test of validity under Title VII is not different from the test of validity under the fourteenth amendment. Castro v. Beecher, 459 F.2d 725, 732-733 (1 Cir. 1972); Western Addition Community v. Alioto, 340 F.Supp. 1351, 1353-1354 (N.D.Cal.1972); Davis v. Washington, 352 F.Supp. 187, 191 (D.D.C. 1972); Shield Club v. City of Cleveland, 5 FEP cases 566, 567 (N.D.Ohio 1973). See also Baker v. Columbus Municipal Separate School District, 462 F.2d 1112, 1114 (5 Cir. 1972); Chance v. Board of Examiners, 458 F.2d 1167, 1176 (2 Cir. 1972)

III.

We turn to the application of these principles to the two facets of this case.

The district court held that the School District had established by “clear and convincing evidence” that the failure to rehire Mrs. Funderburk and the nine “C” certificate teachers was not attributable to a racially discriminatory purpose.

As to the nine “C” certificate teachers, the district court found that (1) the policy against rehiring “C” certificate teachers stemmed from a good faith effort to upgrade the quality of education within the School District; (2) such policy was non-discriminatory in its application; (3) the letter grade system of certification was based on NTE scores; and (4) performance on the NTE was “reasonably related” on the job performance as a teacher. These findings were held sufficient to satisfy the School District’s burden of proof.

As to Mrs. Funderburk, the district court based its conclusion on a total absence of affirmative evidence of a discriminatory motive on the part of the responsible District officials and certain evidence that Mrs. Funderburk was not rehired because of failure adequately to perform her duties in the past.

We consider first the nine “C” certificate teachers and then Mrs. Funderburk.

A. The briefs and oral argument of the United States and the amicus brief of The National Education Association and The South Carolina Education Association stress forcefully that the NTE examination on which the grade of the state certificate was based bore no “demonstrable” or “manifest” relationship to effective job performance as required by Griggs and that the failure to retain the nine “C” teachers must be invalidated for that reason. The evidence on this issue was conflicting. The Superintendent of the system testified that in his opinion the NTE score reflected the preparedness of a teacher to do an effective job in the classroom. Dr. Deneen of the Educational Testing Service which devised and administers the NTE agreed that a teacher cannot teach what he does not know and that therefore the test results in the subjects tested on the NTE have significance, but he testified that the test was designed to be an “assessment of people who recently completed their education,” that it was “designed for and normed on a college senior population,” that it was not designed to measure knowledge acquired through teaching experience or in-service training, and that it was “not a fair measure of [the] . . . knowledge” of an in-service teacher in the subjects tested and “doesn’t measure successfully anything for an in-service teacher . . ..” While it recognized that NTE did not measure many desirable qualities of a teacher, the district court concluded that the test did measure a teacher’s basic level of general knowledge necessary to be an effective teacher and therefore it was “not unreasonable” for the teacher certification grade to be used as the criterion for reemployment.

Aside from recognizing that any test to determine whether to retain personnel, when application of the test has a disproportionate effect on identifiable racial groups, is valid under the fourteenth amendment only if it satisfies Griggs and its progeny, we take no position on whether NTE was validly used in the instant case. It is unnecessary for us to pass upon this question because we are convinced that, even if the use of NTE scores themselves would have been valid, the policy not to retain “C” teachers was so inherently capricious in its application that it denied equal protection of the laws.

The factual and legal basis of our conclusion may be simply stated. Only black teachers were discharged at a time when a unitary system of schools was yet to be achieved. There was uncontra-dicted evidence in the record to the effect that the system of letter certification did not provide for uniform correlation between letter certificates and underlying NTE scores for all teachers. Because the minimum NTE score required to obtain a “B” certificate had been raised prior to the issuance of the “C” certificates held by the nine black teachers not rehired, twenty-six “B” certificate teachers (fifteen black and eleven white) were rehired with NTE scores that would have qualified them for “C” or “D” certificates of later vintage. Stated otherwise, the twenty-six had as low or lower NTE numerical scores of not less than two of the nine who were not rehired. See Appendix A appended to this opinion. Based upon their NTE scores, these twenty-six “B” teachers should have been put in the same class as the nine black “C” teachers for purposes of the decision whether or not to rehire them. The resulting unevenness of application of the defendants’ basic concept renders academic any discussion of the rationality of the standard being applied, including any discussion about the basis on which the validity of the standard turns, i.e., rational basis, compelling purpose, etc. See, e.g., Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). The School District has not satisfied its burden of proof under Chambers where it is established that a substantial number of white teachers, with NTE scores lower than those of the blacks that were let go, were retained.

It is true that the district court found that the inconsistency created by the use of “C” grades rather than numerical scores was “unknown to defendants,” apparently because of reluctance on the part of Educational Testing Service and the State certification officials to make this information available to the defendants. Its finding is not clearly erroneous and therefore the selection of the “C” grade as the standard to be used, in' itself, supplies no basis on which to impugn defendants’ good faith. But this does not validate defendants’ actions.

No State may effectively abdicate its responsibilities by either ignoring them or by merely failing to discharge them whatever the motive may be. It is of no consolation to an individual denied the equal protection of the laws that it was done in good faith.

Burton v. Wilmington Park Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 6 L.Ed. 2d 45 (1961). The Supreme Court has recently reemphasized that the discriminatory effect of a State action will render it invalid under the fourteenth amendment notwithstanding the absence of a discriminatory purpose.

Thus, we have focused upon the effect —not the purpose or motivation — of a school board’s action in determining whether it is a permissible method of dismantling a dual system. The existence of a permissible purpose cannot sustain an action that has an impermissible effect.

Wright v. Emporia, 407 U.S. 451, 462, 92 S.Ct. 2196, 2203, 33 L.Ed.2d 51 (1972). See also Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 931 (2 Cir. 1968); Hawkins v. Town of Shaw, 461 F.2d 1171, 1173 (5 Cir. 1972).

Since it is so obvious that persons similarly circumstanced have been treated unequally, we conclude that the nine “C” teachers must be granted relief.

B. Mrs. Funderburk was the only black “B” teacher who was not reemployed. Seven white “B” teachers were also terminated. She had twenty-nine years of teaching experience, ten in the Chesterfield County schools, and she was recommended for reemployment by her principal. He, however, was also discharged for reasons reflecting on his professional competence; and in the opinion of the superintendent, the principal’s recommendation was suspect. The school in which she had been teaching had a completely integrated faculty.

The decision to terminate Mrs. Fun-derburk was made by the advisory council and was routinely ratified by the School Board. The advisory council made no record of the evidence it considered, but evidence of the basis on which it acted was adduced at the trial. The statement of the chairman of the council showed that Mrs. Funderburk was not recommended for reemployment for the school year 1969-70, but she was reemployed to fill a vacancy immediately prior to the opening of schools in 1969. ■ During that year, the chairman observed her a number of times when school was in session and he found her class unattended and in disorder. A nurse at the school gave a statement that Mrs. Fun-derburk did not “preside” or “function” as a teacher but sat stoically at her desk with a bottle or glass of a cola drink. The head reading teacher at the school gave a statement that Mrs. Funderburk had no enthusiasm for in-service training in remedial reading and declined to implement any of the techniques which were taught. The successor principal of the school indicated that Mrs. Funder-burk’s effectiveness as a teacher had been the subject of question as early as the 1967-68 school year and that there had been further complaints in 1969-70. Finally, the superintendent testified that, although he did not observe her perform as a teacher, she was, in his opinion, “an incompetent teacher, and did not measure up to the qualifications desired of a teacher to be in a class room.”

The district court found that the failure to rehire Mrs. Funderburk was not a case of racial discrimination, and we think that this finding was not clearly erroneous. The district court’s characterization that there was “not a shred of evidence to support” the charge that her dismissal was racially motivated impliedly suggests a possible misconception of defendants’ burden of proof under Chambers and Keyes. Nonetheless, we think that his ultimate conclusion should stand. The proof, in addition to showing that there was a reasonable basis on which to conclude that she was an unsatisfactory teacher, irrespective of her col- or, negatived the possibility that the failure to reengage her, even though it occurred at the time of dismantling a dual system of schools, had any racial motivation. Mrs. Funderburk was not the only “B” teacher whose employment was not renewed; seven white “B” teachers were terminated also. While she was the only “B” teacher not reengaged whose principal recommended that she be retained, the significance of his recommendation was neutralized by the fact that he was not retained on grounds of professional incompetence. Therefore, we see no basis to treat her in a separate classification from the seven white “B” teachers. Prior to the decision not to retain her, the faculty of the school at which she taught had been integrated and her retention or discharge would have no significant effect on the faculty’s racial balance. In short, we are impelled to the conclusion that her color was a fortuitous fact and not any part of the decision not to retain her.

IV.

As to Mrs. Funderburk, we affirm the decree of the district court. As to the nine “C” teachers, we reverse the decree of the district court and remand for further proceedings. On remand, the district court will order the reinstatement of the nine “C” teachers with back pay for any loss of earnings (less earnings from any actual or reasonably available employment), together with reinstatement of any accompanying lost benefits or privileges. We conclude that the government should recover its costs.

Affirmed in part; reversed in part; and remanded.

APPENDIX A

The table set forth below was compiled from information contained in Government Exhibits Nos. 2 and 22.

TEACHERS RETAINED & TEACHERS TERMINATED BY THE CHESTERFIELD COUNTY SCHOOL DISTRICT WHO SCORED BELOW 425 ON THE 1969-70 — 1970-71

Name of Score of Black Black Score of Race of Teachers Teachers Teachers Teachers Terminated Terminated Retained Retained

330 .... ... White

355 .... ... White

358 ....

Freder J. Curry 359

360 .... ... White

361 ....

361 .... ... Black*

363 .... ... Black

365 .... ... Black

367 .... ... White*

367 .... ... White

369 .... ... Black

370 ____ ... Black

373 .... ... Black

375 ....

378 .... ... Black**

378 .... ... White

Eva McKay McDuffie 378

380 ....

382 .... ... White

383 .... ... White

Margaret McCall Watson 383

Evelyn Louella James 384

385 .... ... White

385 .... .... White

Rachel Stewart Evans 387

Helena Ruth Funderburk 389 389 ____

Marian Shaw Funderburk 390 390 ____ ... White

391 ....

396 .... ... White

Neva McLaughlin Thompson 397 397 ....

Anna Sanders Ellerbe 400

410 ____ ... Black**

410____ ... White

419 ....

420 ____

422 ....

424 ____

      . These figures include the ten dismissals which are the subject of this appeal.

      . The NTE consists of two parts: the common examination and the teaching area examination. South Carolina certificate grades are based solely on the former. That part tests professional education and general education.

      . For example, a teacher who obtained a minimum score grade “B” certificate in the period 1954-57 would qualify for only a “D” grade certificate by current standards.

      . The question of whether the standards of impermissible job discrimination are identical under both the fourteenth amendment and Title VII of the Civil Rights Act of 1964 has been largely rendered moot by statute for cases whose operative facts occurred after March 24, 1972. Effective as of that date, the Act was amended to apply directly to the conduct of State employers. 42 U.S.C.A. § 2000e(b) (Supp.1973).

      . The record in this case provides no support for an assertion that the use of letter grades of better than “C” as the criterion for retention of teachers was necessarily racially discriminatory. For the years 1966-67, the last year in which statistics by numerical grades and race were kept, there were 26,382 teachers in the state system. Of these, 17,303 were white and 9,079, or 34.41%, were black. Teachers having a letter grade of “A” or “B” were 25,151 in number; and of these, 17,106 were white and 8,045, or 31.99%, were black. The 2.-42% difference in racial distribution between those having a better than “C” grade and those not would appear insignificant.

      . As stated in the text, the district court found that performance on the NTE was “reasonably related” to on-the-job competence. A subsidiary question may be raised as to whether such a finding is sufficient to validate the use of the test under the rule in Griggs which requires such tests to bear a “manifest” 'or “demonstrable” relation to job performance. While we do not decide whether a “reasonable” relation is the same as a “manifest” or “demonstrable” relation, the degree of proof of job-relatedness required by Griggs is an issue that may have to be confronted in future litigation of this type.

       Single asterisk indicates that the teacher was not employed in the school district in 1969-70, but was employed for 1970-71.

       Double asterisk indicates that the teacher was employed in the school district in 1969-70, but was not employed for 1970-71.


source: Caselaw Access Project

author: JOHN W. PECK, Circuit Judge.

license: Public Domain

text:
    PEABODY COAL COMPANY, Plaintiff-Appellee, v. LOCAL UNION NOS. 1734, 1508 AND 1548, UNITED MINE WORKERS OF AMERICA, and District 23, United Mine Workers of America, Defendants-Appellants.
    No. 72-2106.
    United States Court of Appeals, Sixth Circuit.
    Sept. 13, 1973.
    Albert W. Spenard, Madisonville, Ky., for appellants; William R. Thomas, Madisonville, Ky., Harrison Combs, Washington, D. C., on brief.
    Ronald M. Sullivan, Owensbox’o, Ky., for appellee; William G. Craig, John S. Hager, Sandidge, Holbrook, Craig & Hager, Owensboro, Ky., on brief; Joseph M. Touhill, St. Louis, Mo., of counsel.
    Before EDWARDS, PECK and KENT, Circuit Judges.

       Honorable W. Wallace Kent died May 28,1973.

   JOHN W. PECK, Circuit Judge.

This is an appeal from a finding of contempt for violation of a temporary restraining order in a labor dispute. The dispute involved three underground coal mines in Western Kentucky, the Ken, the Star and the River Queen, all owned by the appellee Peabody Coal Co. Each mine is represented by an appellant local union and all three locals are within District 23, United Mine Workers, also a defendant-appellant.

The dispute centers about the inspection of conveyor belts which convey coal from the producing coal face in an underground mine to the outside. These inspections are necessary to prevent frictional mine fires and explosions of the gas that accumulates when coal and coal dust build up around the belts during their operation. Under the Federal Coal Mines Health and Safety Act of 1969, which became effective in March 1970, such inspections are required “. . . after each coal-producing shift has begun.” 30 U.S.C. § 863(d) (1).

When the Act took effect in 1970, the Federal Bureau of Mines (hereafter Bureau) accepted the State of Kentucky’s then current program for certifying these belt inspectors until such times as the Bureau could view the program. At that time neither the Act nor the Bureau had established criteria for certifying belt inspectors. The Act provides, and did then as well, that a certified person is one who is “certified . . . by the State in which the coal mine is located to perform duties prescribed by [the Act, provided that the State program meets the] minimum Federal standards established by the Secretary. . . . ” 30 U.S.C. § 878(a). In March 1970, Kentucky was providing only “first class” certification, a classification given to a candidate who had met certain training and experience standards fixed by the Kentucky Department of Mines and Minerals (hereafter Department). Thereafter, however, Kentucky established requirements for “Belt Examiners,” an apparent lower level of classification, and certified people meeting the qualifications. Among other things, the qualifications for “Belt Examiners” did not include the experience level required for “first class” certification. Of course, the Bureau had not recognized this classification since it had not reviewed and approved it.

On April 25, 1972, a grievance was filed at the Ken mine claiming inadequate compensation for the four union belt inspectors there. This grievance reached the third stage of the grievance process when the parties agreed to hold the grievance in abeyance pending the outcome of the negotiations between the Bureau and the Department regarding the qualifications and certifications of the belt inspectors.

On May 13, a grievance filed at the Star mine asked that the belt inspectors’ duties be “posted” for union members with the first class certification. This grievance was also held in abeyance by agreement of the parties pending the outcome of the aforementioned negotiations.

In the meantime, the parties agreed, both at the Star mine on May 20 and the Ken mine on May 30, that only union members would inspect the belts until the federal-state agreement was reached. As to the River Queen mine, since the grievance procedure regarding these disputes had only been orally initiated as of June 1, the only agreement reached referable thereto was that the resolution of any grievance would await the outcome of the negotiations.

On May 31, the Bureau announced that Kentucky’s first class certification would be required for all belt inspectors. The next day, at the Star, the union demanded that the jobs be opened for bids, and when this was not done, the miners struck. On June 2, however, the Bureau apparently changed its position and announced that the state certified “belt examiners” were tentatively acceptable. On that day the miners at Ken walked out and on June 3 the River Queen’s miners joined the walkout. At none of the mines was there a resort to the grievance procedure.

On June 6, a complaint having been filed by Peabody on June 5, the U.S. District Court for the Western District of Kentucky granted a temporary restraining order which required the parties to submit the dispute to the grievance procedure and enjoined the work stoppage at all three mines. But the striking miners did not return to work and on June 9 an order to show cause why the defendants-appellants should not be held in contempt of court was issued by the District Court. Defendants’ response set up two basic defenses: first, that the walkout was caused by unsafe working conditions and thus is protected under 29 U.S.C. § 143 ; second, that the defendants attempted to get the miners to return to work but were unsuccessful.

At the show cause hearing held on June 14 the District Judge observed that his crowded docket precluded the conduct of a full hearing and allowed each side a 15-minute argument after refusing to take evidence on the defenses or the contempt charge itself. He then found the defendants in contempt of court, fined the Locals $2,500 plus $500 per day for each day after June 14 that they remained in contempt, and fined District 23 $5,000 and $1,000 per day for each day after June 14 it was in contempt. At the same time the parties agreed to continue the temporary restraining order and stipulated that it had been “providently granted.” A hearing on the request for a preliminary injunction was scheduled for June 20.

On June 16, Peabody filed a motion to reconsider the June 14 contempt fines and increase them, alleging that the defendants were still in contempt. This motion was considered by the District Judge at the time of the hearing on the preliminary injunction, and on June 22 the Court raised the fine to $4,000 per day against the District and $1,000 per day against each Local. It appears that this action was successful in forcing the miners to return to work because there are no other proceedings in the record involving this issue.

On June 20-21, a hearing was conducted on Peabody’s motion for a preliminary injunction at which the District Court considered all the motions then pending in the case. On June 22, the District Court issued a preliminary injunction which ordered the defendants to end their work stoppage and submit the dispute to the grievance machinery. Six days after the filing of the preliminary injunction, defendants filed a motion to reconsider the fines against them, alleging that (1) Peabody had notified the striking miners of the contempt hearing on June 14 and then used their presence at the hearing as evidence that the defeildants did in fact have control over them, and (2) that the Court had allowed no evidence to be taken at the contempt hearing and therefore the fines should be reexamined in light of evidence subsequently received involving the unions’ attempt to get its members to return to work. This motion was overruled by the District Court on July 17. On August 16 the defendants filed a notice of appeal from the “July 17, 1972” order.

Three jurisdictional issues are raised on appeal. First, it is claimed that the appellants have failed to designate a final, appealable order in their notice of appeal; second, that the contempt order is interlocutory and hence non-appeala-ble; third, that the notice of appeal was untimely filed. We will treat these sequentially.

Peabody first contends that this Court lacks jurisdiction to consider this appeal for the reason that the notice of appeal indicates that the defendants are appealing a discretionary order which is non-appealable; namely, the denial of a motion for reconsideration. We conclude, however, that the failure of defendants to name either the June 14 order (contempt citation) or the June 22 order (preliminary injunction) is not fatal to the appeal.

In the case of United States v. Elli-cott, 223 U.S. 524, 32 S.Ct. 334, 56 L.Ed. 535 (1912), a judgment was entered in May 1908 and a timely motion for a new trial was filed in August, which was overruled in January 1909. Later that January, a motion was made to amend the findings of fact and that motion was granted in part and overruled in part on February 15. Notice of appeal was then filed on February 25 from the judgment in January denying the motion for new trial. Responding to the allegations that the appeal was not taken within the statutory ninety-day appeal period and that the appeal was filed from the order denying the motion for new trial, the Court stated a general rule that judgments are not considered final, and hence the time for appeal does not run, until the date of disposition of a motion for new trial or petition for rehearing, if applicable. 223 U.S. at 539, 32 S.Ct. 334. The Court also found that the failure to specify in the notice the final judgment of May 1908 was not fatal.

The rule has been applied more recently in the Courts of Appeals. For example, in Serzysko v. Chase Manhattan Bank, 461 F.2d 699 (2d Cir. 1972), plaintiff had filed in the District Court a series of motions, the effect of which was to request a new trial under Rule 59, F.R.Civ.P. The motions were denied and the notices of appeal referred only to the orders denying these motions. Nevertheless the court said;

“The denial of a Rule 59 motion is normally appealable only in connection with the judgment to which it relates. . . . [Hjowever, appellate courts may consider an appeal of only the denial of a Rule 59 motion as harmless error, and treat the appeal as being from the underlying judgment when such an appeal would be timely. . . .” 461 F.2d at 701 (citations omitted).

The present case involves a motion to reconsider, which is in the nature of a Rule 59 motion to alter or amend judgment, and therefore should be treated similarly. Gainey v. Brotherhood of Railway and Steamship Clerks, 303 F.2d 716, 718 (3d Cir. 1962). See, also, Lumberman’s Mutual Insurance Co. v. Massachusetts Bonding and Insurance Co., 310 F.2d 627 (4th Cir. 1962), wherein the appellant’s notice of appeal referred to an interlocutory order and not to a final order. In that case, the court rejected the contention that it lacked the jurisdiction to consider the final order in the case. Thus Peabody’s contention that this Court lacks jurisdiction to consider the appeal because of the improper notation on the notice of appeal is without merit.

“[Tjhis defect is not fatal where it can be reasonably inferred from the notice of appeal that the intent of the appellant was to appeal from the final judgment, if it also appears that the appellee has not been mislead.” 310 F. 2d at 629 (citations omitted).

In a second jurisdictional argument, Peabody claims that this Court lacks jurisdiction over the appeal because the June 14 contempt order is interlocutory in nature by virtue of the fact that it is a civil contempt order against a party to the suit. Peabody argues that defendants had two alternatives: either apply for a writ of prohibition or mandamus, or appeal the order in an appeal from a final order or decree. Since neither route was taken, Peabody contends that this Court lacks jurisdiction.

This argument is based on a line of Supreme Court cases typified by Doyle v. London Guarantee and Accident Co., Ltd., 204 U.S. 599, 27 S.Ct. 313, 51 L.Ed. 641 (1907). In that case, defendants failed to produce documents, books, etc., as ordered by the court and were cited for contempt. In affirming the dismissal of the appeal by the Court of Appeals, the Supreme Court stated:

“[W]e deem it settled that an order punishing for contempt, made in the progress of the ease, when not in the nature of an order in a criminal proceeding, is regarded as interlocutory and to be reviewed only upon appeal from a final decree in the case.” 204 U.S. at 603, 27 S.Ct. at 314 (emphasis supplied).

See, also, Fox v. Capital Co., 299 U.S. 105, 57 S.Ct. 57, 81 L.Ed. 67 (1936); SEC v. Naftalin, 460 F.2d 471 (8th Cir. 1972); Fireman’s Fund Insurance Co. v. Myers, 439 F.2d 834 (3d Cir. 1971).

Of course, it is not necessary to appeal the final order to appeal a contempt citation; rather, all that is required is that a final order exist, so that the policy preventing piecemeal litigation is served. Thus, the requirement is for an appeal “from a final decision,” not an appeal of a final decision. Certainly it would make little sense to compel the appeal of a decision that might be favorable, e.g., a decision not to grant a permanent injunction, so that the appellant might attack an improper contempt citation.

The recent case of Emery Air Freight Corp. v. Local Union 295, International Brotherhood of Teamsters, 449 F.2d 586 (2d Cir. 1971), cert, denied, 405 U.S. 1066, 92 S.Ct. 1500, 31 L.Ed.2d 796 (1972), involved a situation much like the present. There the District Court handed down an ex parte temporary restraining order, found the union in contempt without holding an eviden-tiary hearing, imposed a $50,000 fine, and later issued a preliminary injunction after a hearing. The Court of Appeals found the preliminary injunction appealable and also considered the contempt citation and fines, but without any discussion of the need for a final order under 28 U.S.C. § 1291.

“We thus come, finally, to the merits of the appeal. We note in passing that whatever questions of appellate jurisdiction there might have been in an appeal from only the April 22 and April 26 orders and the April 27 Final Contempt Order . . . since the appeal from the June 22 preliminary injunction is clearly proper, 28 U.S.C. § 1292(a), we will consider the merits of the various orders.” 449 F.2d at 590. (Citation omitted.)

While the reasoning of the case appears attractive, it is not clear that it is correct. The language of the cases clearly indicates that a final judgment is a requisite for jurisdiction although certain interlocutory orders, such as preliminary injunctions, Deckert v. Independence Shares Corp., 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189 (1941), are appealable. See, 28 U.S.C.A. §§ 1291, 1292. Also, Fireman’s Fund Insurance Co. v. Myers, supra, 439 F.2d at 838; Southern Railway Co. v. Lanham, 403 F.2d 119, 124 (5th Cir. 1968). And while it is sometimes argued that the contempt would be best considered as quickly as possible, this argument was rejected in Doyle, supra:

“It may be true, as said in argument, that, unless the party complies with the order, he may be subjected to fine or imprisonment; and if the order cannot be reviewed until after final decree it may come too late to be of any benefit to the party aggrieved. But the power to punish for contempt is inherent in the authority of courts, and is necessary to the administration of justice and part of the inconvenience to which a citizen is subject in a community governed by law regulated by orderly judicial procedure. As has been said, while the party may suffer imprisonment, ‘he carries the keys of the prison in his own pocket,’ In re Nevitt, 117 Fed.Rep. 448, and by compliance with the order of the court, may deliver himself from punishment.” 204 U.S. at 607, 27 S.Ct. at 315.

Thus it appears that a final judgment under § 1291 is required.

Accordingly, the real issue is whether the defendants appealed from a final order, i.e., whether there was a final order entered in the case prior to the appellant’s appeal. In this regard, we conclude that the June 22 injunction should be considered a final order. As the Supreme Court stated in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), while discussing finality under § 1291:

“The effect of the statute is to disallow appeal from any decision which is tentative, informal or incomplete. Appeal gives the upper court a power of review, not one of intervention. So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal. But the District Court’s action upon this application was concluded and closed and its decision final in that sense, before the appeal was taken.
“Nor does the statute permit appeals, even from fully consummated decisions, where they are but steps towards final judgment in which they will merge. The purpose is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results. But this order of the District Court did not make any step toward final disposition of the merits of the case and will not be merged in final judgment. When that time comes, it will be too late effectively to review the present order and the rights conferred by the statute, if it is applicable, will have been lost, probably irreparably. 337 U.S. at 546, 69 S.Ct. at 1225.

This discussion was elaborated in Gillespie v. United States Steel Corp., 379 U. S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964), where the Court said:

“Under § 1291 an appeal may be taken from any ‘final’ order of a district court. But as this Court often has pointed out, a decision ‘final’ within the meaning of § 1291 does not necessarily mean the last order possible to be made in a case. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545, [69 S.Ct. 1221, 93 L.Ed. 1528]. And our cases long have recognized that whether a ruling is ‘final’ within the meaning of § 1291 is frequently so close a question that decision of that issue either way can be supported with equally forceful arguments, and that it is impossible to devise a formula to resolve all marginal cases coming within what might well be called the ‘twilight zone’ of finality. Because of this difficulty this Court has held that the requirement of finality is to be given a ‘practical rather than a technical construction.’ Cohen v. Beneficial Industrial Loan Corp., supra, 337 U.S., at 546, [69 S. Ct. at 1221]. See also Brown Shoe Co. v. United States, 370 U.S. 294, 306 [82 S.Ct. 1502, 8 L.Ed.2d 510]; Bronson v. LaCrosse & M. Railroad Co., 2 Black 524, 531, [17 L.Ed. 347]; Forgay v. Conrad, 6 How. 201, 203, [12 L. Ed. 404]; Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, [70 S.Ct. 322, 94 L.Ed. 299], pointed out that in deciding the question of finality the most important competing considerations are ‘the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.’ ” 379 U.S. at 152-153, 85 S.Ct. at 311.

In making this “practical” determination as suggested in Gillespie, courts have recognized that the intent of the judge is an important and relevant factor to consider. See, United States v. 1,431.80 Acres of Land in Cross County, Arkansas, 466 F.2d 820, 822 (8th Cir. 1972); United States v. Evans, 365 F.2d 95, 97 (10th Cir. 1966); Paliaga v. Luckenbach Steamship Co., 301 F.2d 403, 407 (2d Cir. 1962); Carnes v. United States, 279 F.2d 378, 380 (10th Cir. 1960). As respects the instant case while the statements of the judge and Peabody would seem- to indicate that the intent was to enter a final order, this is not clearly reflected in the documents that were the result of the hearing. However, it is apparent that the issuance of the preliminary injunction granted Peabody all the relief it prayed for and rejected the defenses proffered by the union and the locals. Thus considering the expressions of the judge and the parties, and the fact that the preliminary injunction in effect disposes of virtually all the questions in the case, we are led by a practical analysis of the case to the conclusion that the defendants are perfecting their appeal from a final order. Moreover, there seems to be little reason for delaying a decision on the contempt aspect of the case. It is clearly at an end, and there appears to be no chance that it will be altered or modified. A decision on the contempt order will have no bearing on the outcome of any remaining aspect of the case, and hence there appears to exist none of the dangers or inefficiencies of piecemeal litigation. A decision on the merits, on the other hand, would effect justice in a case where the final outcome is not difficult and decision would not be aided by further delay. Thus, the District Court’s order should be considered a final order for the purposes of 28 U.S.C. § 1291. See, Firestone Tire & Rubber Co. v. General Tire & Rubber Co., 431 F.2d 1199 (6th Cir. 1970) (implementing Gillespie v. United States Steel Corp., supra), cert, denied, 401 U. S. 975, 91 S.Ct. 1196, 28 L.Ed.2d 325 (1971).

Peabody’s final jurisdictional argument, that the notice of appeal was untimely filed, is easily disposed of. The motion for reconsideration was filed on June 23, six days after the orders were filed. The effect of the filing was to suspend the running of the appeals period until the motion was decided. Maryland Tuna Corp. v. Ms. Benares, 429 F.2d 307 (2d Cir. 1970). This rule has often been applied to motions for reconsideration. Pacific Maritime Association v. Quinn, 465 F.2d 108 (9th Cir. 1972); Roscoe v. Roscoe, 126 U.S.App. D.C. 317, 379 F.2d 94 (D.C.Cir.1967); Woodham v. American Cystoscope Co. of Pelham, N. Y., 335 F.2d 551 (5th Cir. 1964); Gainey v. Brotherhood of Railway & Steamship Clerks, supra.

The motion for reconsideration was denied on July 17, and the appellants had thirty days to file their notice of appeal, which they did on August 16. Thus, the notice of appeal was timely filed and this Court has jurisdiction.

The question is also raised as to whether the contempt order was improperly granted by the District Court following its denial of an evidentiary hearing. We conclude it was improperly granted.

As stated earlier, Emery Air Freight Corp. v. Local Union 295, International Brotherhood of Teamsters, supra, involved a situation almost exactly parallel to the instant case. There, the union struck when the parties failed to agree on a new collective bargaining agreement. On the night of April 22, the strike having begun during the day, the company obtained an ex parte temporary restraining order (TRO) from the District Court halting the strike on the basis that the strike violated the arbitration agreement between the parties. On April 23, the order was served upon the union and on the same day the union obtained a show cause order as to why the TRO should not be vacated. On April 24, the company obtained an order to show cause why the union should not be held in contempt, the strike not having been terminated. Both orders were returnable on April 26.

On April 26, after a hearing, the Court released an order continuing the TRO and stated that the issue of contempt would be considered “at the appropriate time.” The next day when the union refused to return to work, there was a conference with the District Judge, after which the Court signed an order entitled “Final Order Upon Contempt Proceedings,” holding the union in contempt and fining them $50,000, to be paid to the company.

A hearing on the contempt was held on the afternoon of April 28, but it is clear that the union’s counsel was not given an adequate time in which to prepare. The District Judge reserved a ruling on the vacation of the TRO. The next day the union returned to work but the District Court ordered that the fine stand. A hearing was held on April 30 on the request for a preliminary injunction, and it was issued on June 11.

As noted earlier, the Court of Appeals did not enter into a serious discussion of the jurisdictional issues. However, the Court carefully discussed the merits in overturning the contempt conviction on the basis that the lack of a hearing made the contempt citation invalid. The court concluded:

“Therefore, the critical decisions as to whether defendants were in contempt and, if so, what the sanction should be were made in an ambiguous procedural setting, and on an inadequate record. Such important questions cannot be decided in that manner, and the Final Contempt Order cannot stand. Nor can the evidence adduced at the April 28 or the April 30 hearing retroactively validate that order because the initial impact of the decision to fine defendants $50,000 obviously continued to influence the judge when he adhered to it. See In re Oliver, 333 U.S. 257, 284-285, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (concurring opinion.) Since that original
determination was made improperly, it must be set aside.”

In the present case, the error is even more egregious than in Emery Air Freight. Here, the record is not only inadequate, it does not exist. While there was a hearing on the preliminary injunction, and Peabody claims that this retroactively cured the failure of the District Court to hold a hearing on the contempt, we agree with the Court in Emery Air Freight that the error could not be cured by a subsequent hearing. We note, too, that the motion to reconsider the contempt fines, which the company claims caused the District Court to reconsider the contempt order, was made by Peabody when it asked that the contempt fines be reconsidered and increased. Thus, it does not appear, here, on the facts, that the District Court adequately reexamined the finding of contempt after the hearing on the preliminary injunction.

The contempt order is vacated and the judgment of the District Court is reversed. The cause is remanded for further proceedings not inconsistent with the foregoing.

      . For present application, see 30 C.F.R. § 75.-100 (1972).

      . In November 1971, Peabody signed a collective bargaining agreement -with the defendants. The agreement contained a mandatory arbitration clause.

      . Posting is a term meaning at the time a new job is available at a union plant or company, the vacant job is posted on the bulletin board so that all qualified and interested men may bid on it. The bidders are then subjected to the selection process.

      . At the time of the work stoppage, the following conditions prevailed: At the Ken and Star, the belts were being inspected by the “Belt Examiners” and union members who held the first class certificates. The belts at the River Queen were being inspected by the “Belt Examiners” and by company people holding first class certificates.

      . 29 U.S.C. § 143 provides:
      “Nothing in this chapter shall be construed to require an individual employee to render labor or service without his consent, nor shall anything in this chapter be construed to make the quitting of his labor by an individual employee an illegal act; nor shall any court issue any process to compel the performance by an individual employee of such labor or service, without his consent; nor shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this chapter.”

      . Higginson v. United States, 384 F.2d 504 (6th Cir. 1967) (Peck, J., concurring), cert, denied, 390 U.S. 947, 88 S.Ct. 1034, 19 L.Ed.2d 1137 (1968), is not in point. There a third amended complaint had been dismissed and this was the subject of the appeal. The notice of appeal referred only to the order dismissing the second amended complaint and to another order refusing a new trial on the second amended complaint. Both orders were interlocutory. My concurring opinion in the case expressed the view that an attempted appeal from these interlocutory orders did not meet the jurisdictional requisites particularly when the later, and critical, final and appealable order was not included in the notice. Such a situation is readily distinguishable from the instant case where the notice recited the order denying the motion to reconsider, which of course suspended the finality of the final order.

      . However, it does not appear that the issue of the appealability of a contempt of a temporary restraining order in connection with the appealability of a preliminary injunction was ever before the courts prior to Emery Air Freight, supra. In Fireman’s Fund Insurance Co. v. Myers, supra, the court had before it two issues: The appealability of a contempt citation under a temporary restraining order against one defendant and the validity of a preliminary injunction against a group of defendants, including the one in contempt. The court held the contempt citation non-appealable as interlocutory and did not consider whether it could be appealed in connection with the appeal of the preliminary injunction. However, the court also ruled that the order was in reality not a preliminary injunction and thus not • appealable under § 1292(a), so that the question of connecting the contempt appeal with it would not have been decided anyway.

      . “BY THE COURT: And I want to consolidate all motions that are presently pending in this matter under Rule 65 ... [a]nd dispose of all pending matters and motions, including temporary and permanent injunction and the merits also, and not leave anything remaining to be done in this case so that a final order may be entered here and then any aggrieved party may assert his rights to have it reviewed at the appellate level if he chooses to do so.” Transcript of the Proceedings on the Preliminary Injunction, page 8.

      . “The final judgment in this case consisted of two orders entered on June 22, the Preliminary Injunction and the Order on contempt fines.” P. 15, appellant’s brief.

      . We do not intimate that the parties can confer jurisdiction by stipulating that the court’s orders were final, but merely observe that' the appellant’s statements in its brief manifest an intent and interpretation of the proceedings below.

      . Mr. Justice Frankfurter stated:
      [A]n opportunity to meet a charge of criminal contempt must be a fair opportunity. It would not be fair, if in the court in which the accused can contest for the first time the validity of the charge against him, he comes handicapped with a finding against him which he did not have an adequate opportunity of resiting.’ 449 F.2d at 595.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jose Angel HERNANDEZ, Defendant-Appellant.
    No. 73-1823
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 30, 1973.

      Francis P. Maher, Laredo, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Robert Darden, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

This is an appeal from a judgment of conviction for unlawfully, knowingly, and intentionally possessing marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (1970). After accepting Hernandez’s waiver of trial by jury, the district court conducted a bench trial and found him guilty of the aforementioned offense. We affirm.

On appeal, Hernandez challenges the sufficiency of the evidence to support a finding that he was in possession of the marijuana seized by special agents from a truck owned but not operated by him at the time of seizure. A careful review of the record impels us to conclude that there is no merit in his contention.

The evidence marshaled at trial, when viewed in a light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Arroyave, Posada & Barragan, 477 F.2d 157, 163 (5th Cir. 1973), supports the finding of constructive possession. Approximately one week after his arrest, Hernandez confessed that he was to be paid $100 for the use of his pick-up truck and for his assistance in loading the marijuana. At trial, Hernandez protested his innocence and explained that his decision to tender the confession was motivated by the hope of getting his bond lowered. Whether this explanation vitiated the import of the assistance he confessed to rendering was a factual question for the trial court. The district court, after assessing Hernandez’s credibility, may have been unswayed by his explanation. Our only task is to determine whether the confession coupled with additional circumstantial evidence indicating Hernandez was within the vicinity of the situs where the marijuana was being loaded, when viewed in a light most favorable to the government, supports a finding of constructive possession. We feel that it does.

For the reasons set forth above, we affirm the judgment of the district court.

Affirmed.

      . 21 U.S.C. § 841 (1970) provides as follows :
      (a) Except as authorized by this subehap-ter, it shall be unlawful for any person to knowingly or intentionally—
      (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;

      . It is beyond cavil that possession may be either constructive or actual, see, e. g., Montoya v. United States, 402 F.2d 847, 850 (5th Cir. 1968). The finding of the district court rested on the unarticulated assumption that Hernandez’s possession in the instant case was constructive.

      . It is conceded that Hernandez had been fully apprised of his Miranda rights at the time when he offered the confession.

      . We need not decide whether, absent Hernandez’s confession, the circumstantial evidence adduced at trial was sufficient to support a finding of constructive possession. This evidence established that Hernandez learned of the intended use of the truck after he had permitted Tito Patino to use it, the driver of the truck at the time of seizure. Hernandez claimed that from a wooded area adjacent to the crossing point on the Rio Grande he had observed the truck being loaded. He explained his presence there by the fact that while he had no antecedent knowledge that this was the place where his truck was to be loaded, he nevertheless had heard that this particular situs was the customary crossing point for loading marijuana. The testimony of ' Special Agent Joe Ewing that when I-Iernandez was apprehended, his clothes were soiled with mud, suggests that Hernandez had been near the river and not, as he maintained, in the wooded area. No one testified, however, that Hernandez had in fact assisted in loading the truck.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Guadalupe GARZA, Defendant-Appellant.
    No. 73-2370
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 10, 1973.
    Thomas G. Sharpe, Jr., court-appointed, Brownsville, Tex., for defendant-appellant.
    James R. Gough, Jr., Robert Darden, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

The sole question this appeal presents is whether the district court abused its discretion in revoking the defendant-appellant’s probation. The record reveals that, while on probation, the defendant was convicted of a federal criminal offense. The defendant was convicted of possessing with intent to distribute one-hundred-four (104) pounds of marihuana in violation of Title 21 U.S.C. § 841(a)(1) (1970). As a result of this conviction, his probation was revoked on April 19, 1973, and he was sentenced to three years imprisonment, this sentence to run concurrently with that assessed upon the criminal conviction. The defendant had been placed on probation in 1969, as a result of his conviction upon a plea of guilty to a violation of the Marihuana Tax Act, Title 26 U.S.C. § 4744(a)(2) (1964). Although his conviction, which he has appealed separately, is not in issue here, the appellant contends in his brief that an element of the offense alleged was not proved beyond a reasonable doubt at trial and that the revocation of his probation was, therefore, erroneous.

The contention of the appellant is without merit. Probation revocation is a matter entrusted to the sound discretion of the district court, and only upon a clear showing of abuse of that discretion will the district court’s decision be disturbed. Burns v. United States, 1932, 287 U.S. 216, 221, 53 S.Ct. 154, 156, 77 L.Ed. 266, 269; United States v. Clanton, 5 Cir. 1969, 419 F.2d 1304, 1305-1306. No such abuse has been demonstrated here. A revocation of probation does not require proof sufficient to sustain a criminal conviction. All that is required is enough evidence, within a sound judicial discretion, to satisfy the district judge that the conduct of the probationer has not met the conditions of the probation. Clanton, supra, 419 F.2d at 1305; Manning v. United States, 5 Cir. 1947, 161 F.2d 827, 829. Notwithstanding his attack upon it, the defendant’s criminal conviction clearly provided an adequate evidentiary basis for the district court’s revocation order. United States v. Carrion, 9 Cir. 1972, 457 F.2d 808, 809. If he wishes to attack the proceedings at his trial, it is the conviction itself, rather than the probation revocation that he must challenge.

The order appealed from revoking defendant-appellant’s probation is

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellant, v. Harry Sherman LUCKETT, Defendant-Appellee.
    No. 73-1632.
    United States Court of Appeals, Ninth Circuit.
    Aug. 17, 1973.

      William D. Keller, U. S. Atty., Eric A. Nobles, Gregory C. Glynn, Asst. U. S. Attys., Los Angeles, Cal., for plaintiff-appellant.
    John K. Van De Kamp, Federal Public Defender, Gail M. Title, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellee.
    Before BROWNING and ELY, Circuit Judges, and ZIRPOLI, District Judge.

       Honorable Alfonso J. Zirpoli, United States District Judge, Northern District of California, sitting by designation.

   OPINION

PER CURIAM:

The government appeals from an order of the district court granting appel-lee’s motion to suppress evidence. The district court relied upon several grounds in granting the motion. Because we agree that the police improperly held appellee until a warrant check could be run, we do not reach the other issues raised by the subsequent events.

At approximately 12:30 a. m.,' in the early morning of a Saturday, two city police officers saw appellee cross a street in Gardena, California, against the traffic light. The officers drove up to him and waved him to the car. He responded immediately and, after being questioned about the possible jaywalking violation, he readily admitted his error. At the request of one of the officers, he then produced five pieces of identification in the name of Peter Richard Schily. Although the identification produced did not include a driver’s license, appellee explained that this was because he could not drive. The officer accepted the identification and executed a traffic citation. Throughout this time appellee had been cooperative and had done nothing to arouse particular suspicion. Nevertheless, rather than release appellee at this point, the officers continued to detain him in order to run a warrant check on the name he gave. This was done for the sole reason that he lacked a driver’s license. The warrant check produced the information that there was an outstanding traffic warrant against Peter Richard Schily, and, following a subsequent arrest and search, a package of counterfeit United States Postal Money Orders was found in appellee’s pocket.

Once the police officers required appellee to come to the police car, he was “seized,” and therefore, the Fourth Amendment required that the length and scope of the detention be “ ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Terry v. Ohio, 392 U.S. 1, 16, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968). This standard permits a police officer to detain an individual stopped for jaywalking only the time necessary to obtain satisfactory identification from the violator and to execute a traffic citation. Cf. United States v. Hunter, 471 F.2d 6, 7 (9th Cir. 1972). Here the police had completed both these functions, but they continued to detain appellee for the purpose of running a warrant check. Because they had no reasonable grounds to be suspicious that there might be a warrant outstanding against him, this continued detention was unreasonable, and its fruits, therefore, were properly suppressed by the district court.

Affirmed.

      . Appellant urges the court to reject this finding of the district court. It is not “clearly erroneous,” however, and therefore, it must be upheld. See, e. g., United States v. Welp, 469 F.2d 688 (9th Cir. 1972).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Maria Lydia JIMINEZ, Defendant-Appellant.
    No. 73-1575
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 24, 1973.
    Rehearing Denied Oct. 10, 1973.
    Theodore J. Sakowitz, Asst. Federal Public Defender, Miami, Fla. (court appointed not under the act), for defendant-appellant.
    Robert W. Rust, U. S. Atty., Robert C. Byrne, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N.Y., 431 F.2d 409, Part I (5th Cir. 1970).

   PER CURIAM:

Maria Lydia Jiminez got caught by customs officials at the Miami, Florida, port of entry as she attempted to enter this country with a false passport and 1131 grams of cocaine sewn into the lining of the panties she was wearing. Her story on the witness stand was that she had no knowledge that the narcotic was in her underwear. She described a hospital contact in her native Columbia in which a stranger, upon learning she was in necessitous circumstances, had arranged for her to take a trip to New York where she was to await contact by a person of undisclosed identity. The stranger furnished her with a round trip ticket, expense money, a false passport, a letter and the unmentionables. She was instructed to wear these panties as she entered the country then to deliver them together with the letter to a man who would contact her in New York. In return for performing this “errand” Miss Jiminez was promised she would receive money needed for her sick mother’s hospital expenses. A jury failed to credit this testimony by Miss Jiminez and she was convicted of the knowing importation of cocaine and the knowing possession of cocaine with the intent to distribute the same. This appeal asserts errors in charging and refusing to charge the jury, in holding that defendant knowingly waived her right not to incriminate herself and in refusing certain Jencks Act claims for material.

The requested instruction which was refused stated that the government was required to prove beyond a reasonable doubt that Miss Jiminez knew she was bringing a controlled substance into the United States. The full impact of this request was embodied in the charge as given. A defendant has no right to a charge in any particular language. Delancey v. Motichek Towing Service, Inc., 427 F.2d 897 (5th Cir. 1970).

The objectionable instruction advised the jury that defendant’s possession of the cocaine permitted the inference that it was brought into the United States contrary to law and that the defendant had knowledge that such importation was illegal. Miss Jiminez was not found in possession of the illegal and undeclared cocaine drug in the United States. She had the substance in her most intimate proprietorship as she was in the act of bringing it into this country. Thus, this case involves no presumption problem of the type discussed in Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). In the circumstances of this ease, this instruction was redundant but not harmful. The jury understood it still had to decide whether the government proved Miss Jiminez knew what her panties contained. This is well established by the jury’s post-instruction inquiry to the judge as to whether knowing, intentional importation required knowledge that the substance in her panties was cocaine in particular or whether it was sufficient if she knew it was a Class II narcotic in general.

The proof showed that the careful government agents three times explained the defendant’s Miranda rights to her, and only after receiving her acknowledgment that she understood was she permitted to sign a written statement to this effect and to voice her admission that she knew she was a carrier of narcotics.

The alleged unfurnished Jencks Act material is said to be the hand written manuscript from which a report made by a federal agent who appeared as a witness had been typed. The witness testified that the typed copy of the report which was in evidence was the same or substantially the same. No showing was made that the hand written document was still in existence. On the basis of this record we find no error in the court’s action.

Affirmed.

      . 18 U.S.C. § 3500.

      . Miranda v. State of Arizona, 384 U.S. 430, 86 S.Ct. 1602, 10 L.Ed.2d 694, 10 A.L.R.3d 974 (1966).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Thomas Edward LANDERS, Defendant-Appellant.
    No. 73-1995
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 30, 1973.
    Rehearing Denied Sept. 26, 1973.
    Addison Bradford, Jr., Dallas, Tex. (Court appointed), for defendant-appellant.
    Frank McCown, U. S. Atty., Fort Worth, Tex., Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., W. E. Smith, Asst. U. S. Atty., Fort Worth, Tex., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

Appellant, Thomas E. Landers, was indicted on three counts of transporting in interstate commerce forged securities in violation of 18 U.S.C. § 2314. The jury returned a verdict of guilty on all three counts. Accordingly, the court imposed a sentence of four year concurrent prison terms on counts one and two and a two year probation period on count three which is to follow the four year prison term.

Appellant presents three contentions for our review: (1) the Government introduced insufficient evidence' that appellant knew the travelers checks which he negotiated were stolen; (2) the trial court erred in denying appellant’s motion in limine which sought to prevent the introduction by the Government of appellant’s prior state conviction of passing forged securities which was then on appeal to the Texas Court of Criminal Appeals; and, (3) the trial court unduly limited appellant’s recross-examination of a Government witness to show possible bias in giving incriminating testimony.

I. Sufficiency of the Evidence

Since appellant failed to make a motion for acquittal after all of the evidence had been presented, the standard for our review of the sufficiency challenge is circumscribed. See Rule 29, F. R.Crim.P. In such situations reversal on insufficiency of the evidence grounds is permitted only if the record reveals there has been a manifest miscarriage of justice because the evidence on a key element of the offense is so tenuous that a conviction would be shocking. We are thus limited to a determination of whether the record is “devoid of evidence pointing to guilt.”

The record in this case amply demonstrates that the Government presented sufficient evidence from which the jury could conclude beyond a reasonable doubt that at the time appellant negotiated the travelers checks he knew they were stolen. Robert Beasley, an accomplice of appellant in the perpetration of this fraud, testified that he gave the travelers checks to appellant to cash on a percentage basis. Furthermore, after his arrest, appellant related to a fellow cellmate at the Dallas County Jail that “he got bad money orders and cashed them.” Considering all the surrounding circumstances of appellant’s procurement and negotiation of the stolen securities, it is apparent that the Government presented sufficient evidence on the element of knowledge.

II. Limitation on Recross-Examination

Since the use of prior convictions which at the time of trial are then on appeal are admissible for impeachment purposes in this Circuit, we proceed to the final issue raised in appellant’s brief. One of the key witnesses in the Government’s case against appellant was Robert Beasley. Beasley testified that he had given the stolen traveler’s checks to appellant and in return for cashing them appellant was to receive a percentage of the proceeds.

On cross-examination, Beasley admitted that he had told a Mrs. Bates, previous counsel for appellant, that he guessed appellant was innocent. On redirect examination, Beasley stated that he was only trying to help appellant by his comments to Mrs. Bates. On recross-examination, the following colloquy ensued without any previous foundation being laid about any promises of leniency from or agreements with the Government:

Q. [By counsel' for appellant] In-other words, when you changed your story, you were more or less making a deal with the Government, weren’t you ?
A. [Beasley] I plead the Fifth to that, Judge.
The Court: One minute — don’t answer the question. No deal is made with the Government. [Emphasis added]
Mr. Bradford: [counsel for appellant] Your honor, I apologize, and I withdraw the question.
The Court: All right.
Mr. Stephens: [Government counsel] We have no further questions.
The Court: All right, you may be excused, Mr. Beasley.

Thus the record reveals that no objection was made to the court’s limitation on cross-examination by counsel for appellant. Moreover, counsel did not pursue the questioning as to possible promises which might have been made to Beasley to induce his testimony. It is apparent that the court was not objecting to the subject matter of the question but merely to the form in which it was phrased. The question contained a conclusion about a “deal” when no supporting facts had been introduced about any such agreement with the Government.

On the basis of this record, we conclude that appellant was not prejudicially limited in his reeross-examination of Beasley. A trial court has wide discretion in controlling the scope and the form of questions employed in reerossexamination. Here, considering the provocative and unfounded nature of the question propounded by appellant’s counsel, we perceive no error in the trial court’s actions. This is especially true since counsel could have continued in his attempt to adduce facts with respect to any possible promises by the Government to the witness by asking properly phrased questions.

The judgmeht is affirmed.

      . United States v. Haney, 429 F.2d 1282, 1283 (5th Cir. 1970) ; Whatley v. United States, 428 F.2d 806, 807 (5th Cir. 1970).

      . United States v. Wright, 427 F.2d 1179, 1180 (5th Cir. 1970).

      . See, United States v. Franicevich, 471 F.2d 427, 428 (5th Cir. 1973) United States v. Ward, 481 F.2d 185 (5th Cir. 1973).

      . Hale v. United States, 435 F.2d 737, 749-751 (5th Cir. 1970).


text:
    Joseph F. NIKI and Michiko T. Niki, Appellants, v. UNITED STATES of America, Appellee.
    No. 71-2913.
    United States Court of Appeals, Ninth Circuit.
    Aug. 23, 1973.
    Thomas J. Murray (argued), San Francisco, Cal., for appellants.
    Keith A. Jones (argued), Scott P. Crampton, Asst. Atty. Gen., Tax Div., Dept, of Justice, Washington, D. C., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., Meyer T. Rothwacks, Richard W. Perkins, John M. Brant, Tax Div., Dept, of Justice, Washington, D. C., for appellee.
    Before HASTIE, KILKENNY and GOODWIN, Circuit Judges.

       The Honorable William H. Hastie, Senior United States Circuit Judge for the Third Circuit, sitting by designation.

   PER CURIAM:

Joseph F. Niki (taxpayer) and his wife Michiko T. Niki, appeal from a judgment of the district court dismissing their complaint for recovery of taxes under 28 U.S.C. § 1346(a)(1). They contend that the district court erroneously found the taxpayer to be domiciled in Japan during the years 1953 to 1963 rather than in California as contended. Consequently, the taxpayer could not exclude one-half of the income he earned during those years on the basis that that income was community-property income. We affirm.

The question of domicile is mainly one of fact. If tried by the court, its determination is conclusive unless clearly erroneous. Maple Island Farm, Inc. v. Bitterling, 196 F.2d 55, 59 (8th Cir.), cert, denied, 344 U.S. 832, 73 S.Ct. 40, 97 L.Ed. 648 (1952). Upon reviewing the record, we cannot say that the finding of the district court is clearly erroneous.

The taxpayer’s reliance on Commissioner of Internal Revenue v. Matthew, 335 F.2d 231 (5th Cir. 1964) is misplaced. That case held that employees of a civilian contractor operating missile-tracking stations on small British islands in the Atlantic Ocean were not “bona fide resident [s] of a foreign country,” 26 U.S.C. § 911(a)(1), so as to escape United States income tax on their earnings. Although the basic treaty arrangements involved in Matthew were similar to those involved in the present case, the determination there was of residency rather than of domicile, and that determination was for an entirely different purpose than the determination here. What is more, the factual picture of Matthew bears little similarity to that of the present case.

The judgment is affirmed.