author: BUTZNER, Circuit Judge:

text:
    Stuart M. CHRISTHILF, Jr., M.D., Appellant, v. The ANNAPOLIS EMERGENCY HOSPITAL ASSOCIATION, INC., et al., Appellees.
    No. 73-1717.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 4, 1973.
    Decided April 23, 1974.

      Norman R. Lilly, Annapolis, Md. (Merrill & Lilly, P. A., Annapolis, Md., on brief), for appellant.
    John F. King, Baltimore, Md. (Frank C. Serio, Annapolis, Md., and Anderson, Coe & King, Baltimore, Md., on brief), for appellees.
    Before BOREMAN, Senior Circuit Judge, and BUTZNER and FIELD, Circuit Judges.
   BUTZNER, Circuit Judge:

Stuart M. Christhilf, Jr., a physician, appeals from an order of the district court denying his application for an injunction to restrain The Annapolis Emergency Hospital Association from interfering with the staff privileges previously extended to him by the Anne Arundel General Hospital, Annapolis, Maryland. Because we believe that Dr. Christhilf was denied procedural due process and that he had not waived this right, we reverse.

The Hospital Association, a nonprofit corporation governed by a board of managers, operates the Anne Arundel General Hospital. Though the hospital is a voluntary private institution, it has received funds for capital expenditures from Anne Arundel County and from the Hill-Burton program.

Dr. Christhilf has practiced his profession in Anne Arundel County, Maryland, since 1949. A past president of the Obstetrical and Gynecological Society of Maryland, he is board certified in obstetrics and gynecology but not in female urology. For many years, Dr. Christhilf had essentially unlimited privileges at the hospital in obstetrics, gynecology, and female urology. He was a member of the hospital’s medical staff and served as chief of obstetrics from 1954 to 1956.

In an effort to upgrade its services, the hospital ruled that beginning January 1971 it would limit the urology privileges of doctors who were not board certified or eligible for certification in that specialty. Dr. Christhilf protested the change when it was announced, but to no avail. Under the new restrictions, doctors with limited urology privileges were permitted to continue to perform certain operative procedures, but they were specifically prohibited from undertaking others including retrograde pyelograms.

Dr. Christhilf’s present difficulties arose when it came to the attention of the hospital’s medical board that he had performed at least one unauthorized retrograde pyelogram after the rule limiting urology privileges had become effective. Dr. Christhilf appeared before the medical board in October 1971 and spoke in his own defense, claiming that the retrograde pyelogram, which he admitted performing, was done as a gynecological procedure and was, therefore, justifiable. The board, however, deemed that he had violated its rule, and after considering a summary of his past infractions of the rules and regulations of the hospital, it voted 10 to 4 not to renew his hospital privileges. The matter was then laid before the medical staff, which after hearing Dr. Christhilf, voted 38 to 28, with 5 abstentions, against renewing his privileges. The joint conference committee, meeting without Dr. Christhilf, accepted the staff’s recommendation and transmitted it to the board of managers. The board, acting on the recommendation, but without affording Dr. Christhilf an opportunity to be heard, refused to renew his privileges at the hospital.

Dr. Christhilf then brought this action, seeking damages and an injunction requiring the board to reinstate him. The parties stipulated that the bylaws of the hospital provide that the board of managers has the sole and exclusive authority to grant or deny hospital privileges to physicians and that Dr. Christhilf had not been heard by the board. The district court, ruling that the doctor was entitled to be heard, granted an interlocutory injunction restraining the board from terminating his privileges until it afforded him a hearing.

The hospital president then wrote Dr. Christhilf a letter notifying him that he would have an opportunity to appear before the board for a hearing at which the board would decide what action to take with respect to his hospital privileges. The letter purportedly charged the following infractions of hospital rules and regulations:

. The performance of a retrograde pyelogram on October 1,1971;
. Performance of one other urological retrograde procedure on an unspecified date;
. Failure to afford prompt attention to a patient on October 4, 1971;
. Thirty-two incidents occurring on specified dates between August 1957 and August 1971 ;
. Failure to properly care for a patient in December 1971.

Referring to the board’s previous refusal to renew Dr. Christhilf’s privileges, the letter stated that this action was not the result of any single violation “but rather was the result of your general pattern of behavior.” The letter concluded by stating that each member of the board of managers had a copy and “will consider the information stated herein in its deliberations to determine whether or not your privileges should be renewed.”

Correspondence between the attorneys for the parties and colloquy at the subsequent hearing before the board disclosed fundamental disagreements about the interpretation of the charges contained in the hospital’s letter, the scope of the board’s inquiry, and the comprehensiveness of the doctor’s defense. Dr. Christhilf’s attorney was denied discovery of additional documents in the hospital’s possession, including those concerning the 32 incidents spanning the years from 1957 to 1971. The hospital’s attorney took the position that the charges pertained only to the performance of a retrograde pyelogram in violation of the hospital’s new rule. He stated that no further discovery was necessary with respect to the other infractions of the rules because they were before the board only as “historical background.” Referring to the list of the 32 incidents, he emphasized, “This board isn’t going to go back into those cases and determine whether or not they were proper or improper.” Dr. Christhilf, he explained, could admit or deny that these charges had been the subject of former disciplinary proceedings, but in no event would the merits of the 32 allegations of wrongdoing be considered by the board.

On the other hand, Dr. Christhilf’s attorney insisted that he had a right to contest the merits of these 32 charges since the' board had never previously ruled whether they were well founded. To properly contest them, he asserted that he needed other documentary material the hospital was withholding. When it became apparent that this impasse could not be resolved, he advised Dr. Christhilf to withdraw from the hearing. Concerned that the preliminary injunction previously granted would expire at the conclusion of the hearing, he and the doctor then returned to the district court. There they obtained an ex parte temporary restraining order enjoining the hospital from terminating the doctor’s privileges until the court could determine whether he had been denied due process of law at the board’s hearing.

In the meantime, the board continued with the hearing after Dr. Christhilf and his attorney withdrew. The board heard three witnesses and then went into executive session where it voted to terminate Dr. Christhilf’s privileges.

Subsequently, the court vacated the temporary restraining order and denied further injunctive relief. It held that Dr. Christhilf had failed to exercise self-help in obtaining documents which were available to him as a member of the hospital staff and that by leaving the meeting he waived his right to the specific procedural protections which the court had previously afforded him.

II

The district court properly held that the involvement of the federal and state governments through the HillBürton Program and the Anne Arundel County grant sufficiently implicated the state in the affairs of this otherwise private institution to subject the hospital to the restrictions which the fourteenth amendment places upon state action. Cf. Sams v. Ohio Valley General Hospital Ass’n, 413 F.2d 826 (4th Cir. 1969); Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963) cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964). The district court also correctly held that Dr. Christhilf’s hospital privileges could not be terminated without affording him procedural due process. It premised this ruling on the finding that a denial of privileges might effectively foreclose Dr. Christhilf’s practicing in the area because of the harm to his professional reputation and because of the lack of other facilities comparable to those of the hospital within 20 miles of Annapolis. Consequently, the court properly ruled that Dr. Christhilf’s complaint stated a cause of action against the hospital under 42 U.S.C. § 1983. Jurisdiction, therefore, aptly rested on 28 U.S. C. § 1343(3); Suarez v. Weaver, 484 F.2d 678 (7th Cir. 1973); Meredith v. Allen County War Memorial Hospital Com’n., 397 F.2d 33 (6th Cir. 1968); Birnbaum v. Trussell, 371 F.2d 672 (2d Cir. 1966).

While the parties have devoted a great deal of their argument to the dispute over the extent of discovery to which Dr. Christhilf was entitled, we believe that this question is only symptomatic of the basic issue. The fundamental question is whether the board denied Dr. Christhilf due process by ruling through its attorney that although it would consider the 32 infractions of the rules, “it would not go back into those cases and determine whether or not they were proper or improper.” The 32 incidents are of crucial importance because, as the president explained in the letter notifying the doctor of the hearing, the board’s earlier decision to refuse renewal of his privileges was not based on any single violation “but rather was the result of your general pattern of behavior.” Presumably the board based its second decision on the same factors.

“The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). And the right to a hearing embraces an “adequate opportunity . . . to defend . . . .” Louisville and Nashville R. R. Co. v. Schmidt, 177 U.S. 230, 236, 20 S.Ct. 620, 44 L.Ed. 747 (1900). Though this is commonly denominated a procedural right, whether it has been denied must be determined “by the substance of things and not by mere form.” Simon v. Craft, 182 U.S. 427, 436, 21 S.Ct. 836, 839, 45 L.Ed. 1165 (1901). The district court — acutely aware of the intensity of some of the personal feelings involved and fully mindful of the effect that this case could have, not only on Dr. Christhilf and the hospital, but on his patients and the community as a whole — properly applied these principles in its initial decision requiring a hearing. It ruled that Dr. Christhilf should have reasonable notice of the charge, adequate time to prepare his case, the right to present evidence in his behalf, the right to rebut evidence against him, and the right of cross-examination. See Milford v. People’s Community Hospital Auth., 380 Mich. 49, 155 N.W.2d 835, 839 (1968).

The notice of the hearing contained in the letter from the president set forth with reasonable particularity the violations of rules and regulations attributed to Dr. Christhilf. The difficulty arose when this notice of charges was construed by the hospital’s attorney to mean that the merits of at least 32 of the incidents would not be examined by the board, but that the board would nevertheless consider these infractions for “historical background” in determining whether the privilege to practice in the hospital should be denied.

Of course the board should not be obliged to rehear the details of any infraction which it had previously considered at a hearing where the doctor was accorded due process. But the board should have afforded the doctor an opportunity to be heard on the incidents which had not been the subject of previous hearings. For example, of the 32 incidents submitted to the board, one which reads “Tissue Committee Report —‘Unjustified Surgery,’ ” appears to be among the more serious. The only documentary evidence which could be considered under the ruling of the board was a copy of a very short letter dated August 7, 1970 from the chairman of the tissue committee to Dr. Christhilf. It gave the name of a patient, the date the operation was performed, the hospital case number, and stated that the tissue committee had reviewed the case and found it to be unjustified. It concluded by requesting Dr. Christhilf to review the case with his chief of service. A report of this review, if it ever took place, was not included in the documentation of the incident, and Dr. Christhilf’s attorney was denied discovery of the tissue committee’s report. More important, discovery, even if allowed, would be of little avail. Under the procedure explained by the hospital’s attorney, while the board would not consider the merits of this incident, it would consider its existence in determining whether to deny hospital privileges to the doctor.

Administrative proceedings of this nature need not be conducted as full blown trials. But by limiting the doctor’s hearing with respect to these incidents to simply an admission or denial of their existence, the board deprived him of an adequate opportunity to defend his privilege to practice in the hospital. At the very least the board should have considered, along with the documentary evidence of the incidents, the doctor’s explanation in justification or mitigation of charges of wrong-doing that had never previously been the subject of a board hearing. We conclude therefore that the procedure adopted by the board denied Dr. Christhilf due process of law.

Ill

The impasse over the proper construction of the notice of charges and the latitude that should be afforded Dr. Christhilf in presenting his defense did not justify his withdrawal from the hearing. After noting his objection, Dr. Christhilf would not have jeopardized his rights by continued participation. Quasi-public institutions, which lack a court’s power of arrest or authority to summarily punish for contempt, should not be subjected to conduct which verges on' a boycott when discharging an obligation placed upon them by law. Dr. Christhilf’s departure undoubtedly has delayed the final resolution of this controversy, and we will return to it in part IV of this opinion.

We conclude, however, that Dr. Christhilf did not waive the opportunity to be heard by leaving the hearing and promptly resorting to the court to obtain this right. Waiver is ordinarily defined as “an intentional relinquishment or abandonment of a known right or privilege.” Moreover, “ ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights,” and they “do not presume acquiescence in the loss of fundamental rights.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Here the record is clear that under the rules adopted by the hospital for the hearing, Dr. Christhilf was not afforded an opportunity to be heard. He was denied an essential element of this right, the opportunity to adequately defend himself. He strenuously asserted his right to be fully heard, first at the hearing and immediately thereafter in the court which had ordered the hearing. Whatever else may be said of his departure from the hearing, it cannot be described as acquiescing in the relinquishment or abandonment of the very right he was pressing to secure. It was the doctor’s prompt resort to the court for enforcement of his right to be heard which distinguishes this case from situations where refusal to participate in a hearing may evidence waiver. Cf. Harris v. Smith, 418 F.2d 899, 901 (2d Cir. 1969).

IV

On remand the district court need not reinstate the temporary injunction that assured Dr. Christhilf hospital privileges pending hearing by the board of managers. Although such an injunction may often be proper, due process does not always require a hearing before a doctor’s privileges are suspended. The gravity of the charges, the findings of the medical board and staff, and the delay and expense caused by Dr. Christhilf’s withdrawal from the hearing afford ample justification for denying him interlocutory relief. Mack v. Florida State Board of Dentistry, 430 F.2d 862, 864 (5th Cir. 1970), cert. denied, 401 U. S. 954, 91 S.Ct. 970, 28 L.Ed.2d 237, rehearing denied, 402 U.S. 925, 91 S.Ct. 1365, 28 L.Ed.2d 664 (1971); Citta v. Delaware Valley Hospital, 313 F.Supp. 301, 309 (E.D.Pa. 1970).

The fact remains, however, that Dr. Christhilf has been permanently banned from practicing in the hospital without being afforded due process of law by the board of managers. Therefore, the district court should provide in its decree for the restoration of his privileges unless the board affords him a hearing within a reasonable time as specified by the district court. The hearing should proceed afresh without reference to the board’s proceedings in the past. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). Because a large part of the present controversy arose over the proper construction of the board’s charges in its notice of hearing, the charges that the board intends to consider should be stated anew. Dr. Christhilf must be afforded an opportunity to defend by contesting the merits of each charge or incident cited by the board. The requirements for the hearing that the district court previously enumerated were appropriate considering the circumstances. However, in view of the dispute that subsequently arose, they should be supplemented by requiring the hospital to permit Dr. Christhilf or his attorney, at their own expense, to inspect or copy all documents in the hospital’s possession bearing on each charge.

The board, however, need not in these proceedings hear complaints that Dr. Christhilf has about other doctors. Since the hospital’s denial of this type of evidence was not the subject of Dr. Christhilf’s brief, it may be that he has abandoned this aspect of the dispute. In any event, he has not shown its relevance. The board has a responsibility to consider the interests of the public. This responsibility would not be promoted by restoring Dr. Christhilf’s privileges because he offers proof of infractions by other persons, if in fact he himself is not entitled to renewal. See Woodbury v. McKinnon, 447 F.2d 839, 846 (5th Cir. 1971).

Try as they might, the conscientious attorneys representing the parties have experienced difficulty in keeping the controversy from appearing as an adversary proceeding involving the board. The litigation, moreover, has placed a heavy burden on the hospital’s counsel who have been cast in the triple role of representing the hospital in court, advising the board about the discovery it should allow and the procedure it should follow in the administrative hearing, and presenting the charges against the doctor. For these reasons, the parties may wish to reconsider the district court’s suggestion that one of the lesser boards or committees of the hospital could conduct the actual hearing with the board of managers then reviewing the evidence, findings, and recommendation in an appellate capacity. Or the district court and the parties may wish to consider retaining a hearing officer to preside over the administrative proceedings at the expense of the parties.

The judgment is vacated, and this case is remanded for further proceedings. Each party shall bear its own costs.

      . The incidents were-described as comprising “your long record of numerous and frequent infractions of hospital rules, violations of regulations, and general nonconformity ranging from minor instances to more serious infractions which have resulted in repeated warnings, reprimands, temporary suspensions of privileges, and on one occasion consideration for expulsion.” Other exhibits mention 35 incidents, but this discrepancy is of no consequence to this appeal. A list of the incidents with supporting documentation was enclosed,

      . Under other circumstances a similar panoply of procedural rights is not required. See, e. g., Woodbury v. McKinnon, 447 F.2d 839 (5th Cir. 1971).

      . The record does not indicate that the board previously considered any of the charges or incidents at a hearing in which Dr. Christhilf was afforded due process. If, however, any of the charges were the subject of such a hearing, the board need not rehear them.


source: Caselaw Access Project

author: COFFIN, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Elias A. KENAAN, Appellant.
    No. 73-1094.
    United States Court of Appeals, First Circuit.
    April 26, 1974.
    Michael O. McCarter, Boston, Mass., with whom Michael S. Field, and Field, Rudnitsky, Mullane & Schultz, Boston, Mass., were on brief, for appellant.
    Lauren S. Kahn, Atty., with whom James N. Gabriel, U. S. Atty., John R. Tarrant, Special Atty., and Peter M. Shannon, Jr., Atty., Dept. of Justice, were on brief, for appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

Appellant, convicted on two counts of unlawful receipt, concealment, and possession of approximately .293 grams of cocaine, in violation of 18 U.S.C. § 545 and 21 U.S.C. § 844(a), contends on appeal that his conviction should be set aside because of alleged errors which included the denial of appellant’s motion to suppress testimony concerning the results of an examination of appellant’s hands for traces of fluorescent powder, conducted with an ultraviolet light, before appellant was arrested, and an instruction to the jury which permitted the jury to employ an unconstitutional statutory presumption in 18 U.S.C. § •545.

Evidence was introduced by the government at trial to show that customs agents had discovered cocaine inside a packet within a parcel postmarked from Peru and addressed to an individual, other than appellant, at appellant’s address. Most of the cocaine was then removed by the agents, and soap powder substituted. The new mixture, containing less than three per cent cocaine, was put back into the packet, the packet was dusted with fluorescent powder, and was replaced in the parcel. After the reconstituted parcel arrived in Boston, a post office notice card was delivered to appellant’s address. Appellant thereupon presented the card at the mail station and asked for the parcel, but was told that the parcel was unavailable, and that he should consult with the post office superintendent. Appellant then left the mail station. The next day the parcel was delivered to appellant’s address. Appellant agreed to receive the parcel, although he stated that the parcel was not addressed to him, and that the addressee picked up his mail at that address periodically.

Government agents then obtained a warrant to search appellant’s apartment. There they found a small spoon, which appeared to have some residue upon it, but did not find the parcel. The residue was subsequently analyzed to contain cocaine. The parcel itself was discovered, unwrapped and without the cocaine-soap powder mixture, within a plastic garbage bag which agents had observed being placed on the sidewalk outside the building by the building landlord. The agents then used an ultraviolet lamp to inspect appellant’s hands for traces of fluorescent powder. After the test revealed traces of the powder, appellant was placed under arrest.

Appellant contends that the results of the inspection of his hands should have been suppressed at trial, since the inspection was, in effect, a personal search unauthorized by the warrant to search the premises. There can be little doubt that an inspection of one’s hands, under an ultraviolet lamp, is the kind of governmental intrusion into one’s private domain that is protected by the Fourth Amendment. Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). If the reach of the Fourth Amendment extends to fingerprinting, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), and a search of one’s clothing or personal effects, United States v. Micheli, 487 F.2d 429 (1st Cir. 1973), it should certainly encompass a detailed inspection, by special instrument, of one’s skin.

It is no answer for the government to argue that the ultraviolet inspection actually protected appellant’s privacy by obviating the necessity of a physical search of his person, since the search warrant gave the government agents no authority to conduct a personal search. Micheli, supra. The protection afforded an individual by the Fourth Amendment would be eviscerated if, under authority of a warrant to search premises, government agents could scan an individual’s body with sensitive instruments capable of picking up the most minute or intimate object lodged thereon.

The government urges, alternatively, that even if the Fourth Amendment applies, the search was justified as being incidental to a lawful arrest. Although appellant had not been placed under arrest when the search was conducted, it has been held that a personal search is justifiable as incidental to arrest if an arrest is made immediately after the search and if at the time of the search there was probable cause to arrest. Bailey v. United States, 128 U. S.App.D.C. 354, 389 F.2d 305, 308 (1968). See also Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); United States v. Brown, 150 U.S.App.D.C. 113, 463 F.2d 949 (1972). These criteria must, of course, be strictly construed to avoid the possibility that the search is aimed at retrieving enough evidence to provide probable cause for arrest, or that the arrest is simply a pretext for the search. See United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932).

Here the government knew that the parcel bore appellant’s address and that the appellant had attempted to retrieve it long before agents entered the premises. Of course, law enforcement officers may postpone arrest in the hope that they may strengthen their case by uncovering further evidence, “[b]ut every time there is delay in the making of the arrest and there is a search made as incidental to the arrest, the law enforcement officers take the risk that they will be charged with using the arrest as a mere pretext for the search.” Carlo v. United States, 286 F.2d 841 (2d Cir. 1961), cert. denied, 366 U.S. 944, 81 S. Ct. 1672, 6 L.Ed.2d 855 (1961).

The remaining items of evidence gathered prior to inspection of appellant’s hands — the spoon with some residue on it and the discarded parcel in the garbage bag outside — provided some circumstantial evidence. Despite the characterization in the government’s brief we are not able to ascertain from the record whether the spoon was of the type uniquely associated with the use of cocaine or was of a garden variety type. If the evidence were of the former nature, the government’s claim of probable cause would be more persuasive. We make no final determination on the point, however, since appellant’s next contention requires reversal. On remand, the district court will have further opportunity to decide whether there was probable cause for arrest before inspection of appellant’s hands. Factors to be considered might include whether or not the spoon and its residue had unique characteristics which would signal narcotics activity.

We turn to appellant’s second contention which, as noted, we find dispositive of his appeal. 18 U.S.C. § 545 under which appellant was convicted, provides, in part, that “whoever knowingly . smuggles . . . into the United States any merchandise that should have been invoiced ... or knowingly imports merchandise contrary to law” shall be guilty of a felony. It also provides that “[p]roof of defendant’s possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this section.”

In Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), the Supreme Court struck down the statutory presumption in 21 U.S.C. § 174, which imputed knowing importation of cocaine from a mere unexplained showing of possession of cocaine. The Court reasoned that since more cocaine is lawfully produced in this country than is smuggled into this country, the statutory presumption could not satisfy the “more-likely-than-not” standard for validating statutorily authorized inferences enunciated in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). See Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). Precisely the same presumption, when applied to cocaine, is featured in 18 U.S.C. § 545, except that here the government has the added burden of showing illegal importation. If the presumption could not pass constitutional muster in one part of the Code, it cannot in another.

The government contends, in effect, that since the court instructed the jury that each element of the crime had to be proven beyond a reasonable doubt, the possible effect of any unconstitutional inference within the statute would be eliminated. But the court also familiarized the jury with the statute itself, and alerted the jury to the statutory presumption contained therein: “It also states that proof of the defendant’s possession of such goods, unless explained to the satisfaction of the jury shall be deemed evidence sufficient to authorize conviction for violation of this section.” We have no way of knowing to what extent the jury based its finding upon this unconstitutional inference.

Nor is it relevant that the jury might have had ample circumstantial evidence on which to base a finding of knowledge of illegal importation of cocaine, beyond a reasonable doubt. The due process guarantee of a rational statutory presumption in Leary and Turner may pose a constitutional right “so basic to a fair trial that their infraction can never be treated as harmless error.” Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967); see Bollenbach v. United States, 326 U.S. 607, 614-615, 66 S.Ct. 402, 90 L.Ed. 350 (1946). But see United States v. Matalon, 425 F.2d 70 (2d Cir. 1970). But even if the unconstitutional presumption could amount to no more than harmless error in certain circumstances, in the present instance we are unable to say that it was harmless. Appellant might have had knowledge of illegal importation if he had seen the postmark on the parcel, if he understood that the postmark was derived from outside the United States, and if he had reason to know that the importation was illegal. But the government offered no direct evidence to substantiate any of these possibilities, nor did it offer “overwhelming” circumstantial evidence. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). On this record, we are unable to say that the error was harmless beyond a reasonable doubt. Chapman, supra, 386 U.S. at 24, 87 S.Ct. 824.

Reversed and remanded for a new trial.

      . The district court, in denying appellant’s motion to suppress, relied upon United States v. Richardson, 388 F.2d 842 (6th Cir. 1968), in which the court declined to characterize an examination by ultraviolet light, similar to the present one, as a search within the meaning of the Fourth Amendment. But the Riohardson court’s opinion is inconclusive. No reason is offered to support its assertion. The court cited only Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), which seems to offer support for the opposite conclusion, since there the Supreme Court held that a withdrawal of defendant’s blood, for the purposes of examnation, came within the ambit of Fourth Amendment protection. Finally, the court in Richardson chose to rest its holding upon appellant’s consensual waiver of Fourth Amendment rights.

      . Barnes held that since the statutory presumption submitted to the jury satisfied both the Leary “more-likely-than-not” standard as well as the higher “beyond a reasonable doubt” standard, it accorded with due process. In the present case, however, since the statutory presumption as applied to cocaine in small quantities fails to meet even the Leary standard, we need not go on to examine whether the “beyond a reasonable doubt” standard is constitutionally required.


author: BRATTON, District Judge.

text:
    UNITED STATES of America, Appellee, v. Dalton Carl SMITH et al., Appellants.
    Nos. 73-1399 to 73-1601.
    United States Court of Appeals, Tenth Circuit.
    Argued Jan. 7, 1974.
    Decided May 1, 1974.
    Rehearing Denied June 10, 1974.

      Robert L. Pitler, Denver, Colo. (George Miskovsky, Oklahoma City, Okl., with him on the brief), for appellant, Dalton Carl Smith.
    Alex Stephen Keller, Denver, Colo., for appellant, Michael J. Fitzgerald.
    Isaac S. Willson, Wheat Ridge, Colo., for appellant, Jack L. Biggs.
    Paul D. Cooper, Asst. U. S. Atty. (James L. Treece, U. S. Atty., with him on the brief), for appellee.
    Before SETH and HOLLOWAY, Circuit Judges, and BRATTON, District Judge.
   BRATTON, District Judge.

This appeal is from the convictions pursuant to 18 U.S.C.A. § 371 of Dalton Carl Smith, Michael J. Fitzgerald and Jack L. Biggs for conspiring to defraud the United States.

The one count indictment charged that the appellants wilfully and knowingly conspired to defraud the United States of and concerning its governmental functions and rights. The rights involved are its right to have the official business of the Small Business Administration conducted honestly and impartially, its right to have the personnel of the agency free to conduct business without exertion upon them of undue pressure and influence, and its right to the loyal and unbiased services, decisions, and performance of his duties of Jack L. Biggs in his capacity as a supervisory loan specialist, free from any corruption, partiality, improper influence, bias and fraud resulting from his personal and pecuniary interest in a business, American Western Plastics (A.W. P.), which was sought to be financed by others with the aid of a loan guaranteed by the Small Business Administration.

The indictment charged that Fitzgerald, as President of A.W.P. would apply for a loan in the amount of $350,000.00, such loan to be guaranteed by the S.B. A., and which loan was not paid when due, so that the S.B.A. had to pay on its guarantee. A further part of the conspiracy was that Biggs would shepherd the A.W.P. loan through the S.B.A., even though he had personal and financial ties to Fitzgerald and to Smith, both of whom had an interest in A.W.P. Also charged was that the interest of Smith would be concealed by the appellants, that there would be used fraudulent representation and undue influence in the preparation and processing of the loan, and that the appellants would use corporations to frustrate S.B.A. efforts to collect on the loan in the event of default.

Fifteen overt acts in furtherance of the conspiracy were listed in the indictment.

The facts as introduced by the prosecution are as follows. Appellant Smith moved to Denver, Colorado, and, in the summer and fall of 1970, began looking for a business to purchase. He opened an account at a Denver bank in September, and appellant Biggs, who had known Smith in California, was asked by Smith to call an official at the bank to give Smith a good reference, which Biggs did.

Smith proposed to buy any business located and for sale by exchanging for it certain stock. He did not want, however, to be the named purchaser of any business. He engaged one Herbert Oakes, for a share of any asset so acquired, to undertake the exchange for him. Oakes contacted James Betts, the president of A.W.P., and engaged in negotiations to buy the business in exchange for stock. He also took Biggs out one day to visit the plant, following a luncheon with Biggs and Smith at which they had discussed the possibility of an S.B.A. loan of $200,000.00 to finance the deal. Betts, however, did not want to finalize the deal offered by Oakes, preferring to have someone else handle the matter. Carroll Capital Corporation became involved in the proposed purchase of the business, and it, too, was acting in Smith’s behalf as well as its own.

Howard Carroll, of Carroll Capital Corporation, contacted Fitzgerald in the fall of 1970 about another business matter. Fitzgerald indicated to him in late 1970 his desire to leave his law practice and go into business. This resulted in the assignment by Carroll Capital of its interest in the purchase contract for A. W.P. to him. He became on the contract finally signed the president of A.W.P. and, together with McAnnany, the accountant hired by A.W.P. after the contract was signed, the ostensible owner of all the stock in the company.

Fitzgerald and Biggs had known each other for a period of years. In addition to the other contacts between Fitzgerald and Biggs reflected herein, Fitzgerald made payment on a bank loan of Biggs in the spring of 1971 before the approval by the S.B.A. of the loan application.

Throughout the negotiations for the purchase of A.W.P., Betts understood that it was actually Smith who was to be the purchaser of the company. Smith told Betts that he would get through the S.B.A. the money to finance A.W.P. and pay off its indebtedness. Betts’ company had suffered financial reversal, and, in the last few years he owned it, it had not shown a profit. It was having difficulty with the I.R.S. over its failure to pay withholding taxes, and a lien had been filed against it. It was ultimately closed down for a week but was reopened upon the assurances of Fitzgerald and McAnnany that the back taxes would be paid. When the contract was finally executed, Fitzgerald gave Betts certain airline stock, the value of which was guaranteed to Betts by Smith. However, Smith’s name never appeared on the contract for the purchase of the company or on any document submitted to the S.B.A. for a loan to finance the company.

During the period before the S.B.A. loan for A.W.P. was approved, Smith discovered another plastics company, Polyco, and contacted one of its officials about its purchase. In the spring of 1971, Fitzgerald and Biggs met with the attorney representing the parent company. This attorney also spoke with Smith, and Smith, as well as Fitzgerald, told him that Smith was the principal for whom Polyco was being purchased.

The company was included in the S.B. A. loan application, and its inclusion raised the amount applied for to $350,000.00. It was not until after the loan had been approved that the loan papers were changed to reflect that part of the purchase price of Polyco was reflected by a $50,000.00 lien against its equipment. This change was approved by Biggs, who had been present when the deal was made and who at that time had learned part of the purchase price would be in the form of the lien.

At the time of its purchase, Polyco was not engaged in business and had not been since January of 1971. The closing payment for its purchase was May 20, 1971, and the $100,000.00 cash part of the purchase price was paid from the proceeds of the S.B.A. loan.

The statement in support of the S.B.A. application had no date stamp and there was no S.B.A. form detailing when the first contact with the borrower had been made.

Biggs’ superior officer, the assistant chief of the division, had authority to approve loan applications up to $350,000.00. He had expressed reservations about the feasibility of the loan. Following the application’s review by the screening committee composed of this officer, Biggs, and another loan supervisor named Bailey under the direction of Biggs, a feasibility report was ordered. This came about because Bailey asked for approval of the loan on May 4, and the assistant chief of the division refused to give it without such a study. The feasibility study indicated that the business had a good chance of succeeding and that the proposed loan should be a good one.

Biggs was Bailey’s immediate superi- or and the one who assigned the loan to Bailey for processing. Bailey’s only authority was to make recommendations to his supervisor, Biggs. He had no authority himself to approve or disapprove loans.

Biggs normally had authority to approve loans up to $50,000.00 in amount. Under the line of authority established in the office, in the absence of his superior, he stood in that superior’s place and had authority to approve a loan of any amount up to $350,000.00.

On May 13, 1971, while Biggs’ immediate supervisor was out of town, both Bailey and Biggs advised the Regional Chief of the Financing Division that the loan had to be approved that day or the I.R.S. would close down the A.W.P. plant.

Under a procedure instituted by the chief of the division, all applications had to be reviewed by him after approval by the loan officer. He was in a meeting until 4:15 P.M. on the day in question and, so, upon the above advice, he waived the review, and Biggs’ approval of the loan finalized it. Hence, the loan was approved in the absence of the person who had expressed reservations about it and who, had he been in the office that day, would have been the person who had to approve the loan application. Further, the evidence at trial established that the I.R.S. had not issued an ultimatum, so that it was not a fact that the loan had to be approved on the day Biggs approved it.

During the period before approval, the First National Bank of Clovis, New Mexico, had agreed to lend the money to A.W.P. upon an S.B.A. guarantee. The bank was anxious to attract new business for Clovis, and it wanted A.W.P. to locate there. Upon S.B.A. approval of the loan, the proceeds were disbursed to A.W.P. by the Clovis bank, and A.W.P. was moved to Clovis.

The proceeds of the loan were spent within two months, in part for purposes other than those set out in the loan conditions, and the business shortly thereafter failed. A proof of claim was ultimately filed in bankruptcy court by the S.B.A. and against Telstar, Incorporated, the successor company to A.W.P.

The loan application itself had been prepared by one Terry MeAnnany, C.P. A. who began work for and became the vice-president of the company on April 1, 1971. The narrative in support of the application was prepared by Fitzgerald. Both men also submitted personal financial statements that did not accurately reflect their true financial condition.

The application itself reflected the assets of AW-P- and Polyco, the company it proposed to buy and with which it would then merge. The projections prepared in support of the application were optimistic, requiring stringent management controls to achieve, and also included two accounts that the company was negotiating for but did not yet have.

Further evidence illustrated the relationships among the appellants. For example, in September and again in December of 1970, Smith made the statement that Biggs would do whatever Smith wanted him to do. In the fall of 1970, Smith wrote checks to Biggs on three occasions, which Biggs deposited in his account.

For his part, Biggs borrowed money from a bank in late 1970 and endorsed part of the loan proceeds over to Smith. In the spring of 1971, before the S.B.A. loan was approved, he borrowed further money from another bank securing the loan with stock held in Fitzgerald’s name. In fact, there are several instances in the record of the appellants seeming to own and use, each as his own, the same shares of stock. Biggs put one-half of the loan in the form of a cashier’s cheek and endorsed the check. This check was deposited in A.W.P.’s account by the company’s secretary, who was instructed to and did bring back $1,500.00 in cash to Fitzgerald.

In addition, Biggs visited the A.W. P. plant on several occasions before the loan application was made and discussed with Fitzgerald in person and Smith by telephone how the application should be prepared.

On appeal it is argued, as it was in the court below, that the indictment fails to charge a crime in that it fails to allege facts sufficient to charge a conspiracy to defraud the United States pursuant to 18 U.S.C.A. § 371. Among other things, it is contended that what is stated in the indictment does not amount to a crime and that the indictment is brought under the wrong statute.

The indictment fairly reads that the appellants conspired to defraud the United States of its governmental functions and its right to have the business of the S.B.A. conducted honestly and impartially, free from undue influence, and its right to have S.B.A. personnel transact business free from undue influence. The allegations of the indictment reflect not only the conduct of each appellant but also the agreement to engage in such activity for a common purpose. The provision of 18 U.S.C.A. § 371 pursuant to which the indictment was brought is broad enough to cover such a conspiracy, and the indictment as drawn states a crime. Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Hammerschmidt v. United States, 265 U.S. 182, 44 S.Ct. 511, 68 L. Ed. 968 (1924); United States v. Peltz, 433 F.2d 48 (2d Cir. 1970), cert. denied, 401 U.S. 955, 91 S.Ct. 974, 28 L.Ed.2d 238 (1971).

There is no merit to the above or other attacks upon the indictment.

Appellants argue that a conspiracy was never established by independent proof, so that a variety of evidence relating to transactions and declarations were improperly admitted as to each of them. To the extent that this contention relates to the order of proof at trial, it is without merit. The order of admission of evidence in a conspiracy case is a matter within the trial court’s discretion. Beckwith v. United States, 367 F.2d 458 (10th Cir. 1966); Nelson v. United States, 415 F.2d 483 (5th Cir. 1969), cert. denied 396 U.S. 1060, 90 S.Ct. 751, 24 L.Ed.2d 754 (1970); United States v. Elgisser, 334 F.2d 103 (2d Cir. 1964), cert. denied, 379 U.S. 881, 85 S. Ct. 151, 13 L.Ed.2d 87 (1964). The record reflects no abuse of such discretion.

As for appellants’ challenge to the introduction of any such evidence on the basis that it was inadmissible because the conspiracy was never established by independent proof, the evidence relating to the financial dealings among the appellants furnishes such independent proof. See Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L. Ed. 593 (1953). Hence, the evidence complained of was admissible. United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948); United States v. Cox, 449 F.2d 679 (10th Cir. 1971), cert. denied, 406 U.S. 934, 92 S.Ct. 1783, 32 L.Ed.2d 136 (1972); Nelson v. United States, supra. The jury was properly instructed as to the proper use of such evidence as against each defendant at the close of the trial.

Next it is claimed that the evidence is insufficient to support appellants’ convictions and, hence, that the denial of their post trial motions was error.

It is contended that the evidence shows nothing more than that the three appellants were friends and had had financial dealings with one another. It is further asserted that the evidence shows that the only intent they had was to make the business purchased a going concern, in which endeavor they failed, i. e., there was no showing that dishonest means were used in the dealing with the S.B.A. and in the disbursement of the loan proceeds. They point to the fact that Smith and Fitzgerald put money of their own into the business trying to make it succeed.

The evidence adduced at trial, together with the inferences to be drawn therefrom, must be viewed here in the light most favorable to the prosecution to determine whether there is substantial evidence from which a jury might reasonably find that an accused is guilty beyond a reasonable doubt. Jones v. United States, 365 F.2d 87 (10th Cir. 1966).

There is ample evidence in this case from which a jury might find that the appellants conspired to defraud the United States in the manner charged in the indictment.

Also objected to is the trial court’s ruling that certain checks should be allowed in evidence. Copies of the checks were not furnished to the defense within five days after the pre-trial, as the court had ordered in the pre-trial order. Rather, they were given to the defense as the trial opened. The appellants argue that the checks, which reflected how part of the S.B.A. loan proceeds were disbursed for purposes not authorized by the S.B.A. loan, were immaterial and prejudicial evidence they were totally unable to meet because the records relating to them were in Colorado or elsewhere and not in Oklahoma City where the trial was being held.

The government showed the trial court that the relevance of the evidence had not become significant until the Friday preceding the Monday when the trial commenced, when it was furnished a supplemental list of witnesses the defense proposed to offer at trial. It also argued that the opening statements of the defense had indicated it was their contention that the evidence would show the purpose of the loan was to make the company an operating business, a contention which the checks directly refuted.

The government legitimately anticipated that this would be an issue in the trial at the time it received the supplemental list of witnesses and was entitled to put on its evidence relevant thereto.

Various errors are asserted relative to the trial court’s instructions. A review of the instructions given, however, reflect that, when considered as a whole, they were proper and adequately explained the applicable law. United States v. Cooper, 464 F.2d 648 (10th Cir. 1972), cert. denied, 409 U.S. 1107, 93 S.Ct. 902, 34 L.Ed.2d 688, reh. denied, 410 U.S. 960, 93 S.Ct. 1424, 35 L.Ed.2d 696 (1973).

It is not necessary to discuss the other points raised on appeal, for the record reveals them to be lacking in merit.

Affirmed.


author: LEWIS R. MORGAN, Circuit Judge:

text:
    Galdino JUAREZ-CASARES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-4028.
    United States Court of Appeals, Fifth Circuit.
    June 27, 1974.

      Alice Dwyer, El Paso, Tex. (Court-appointed), for petitioner-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., William B. Hardie, Jr., Asst. U. S. Atty., El Paso, Tex., for respondent-appellee.
    Before DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.
   LEWIS R. MORGAN, Circuit Judge:

Two years and seven months after an uncounseled plea of guilty, appellant was sentenced to 11 maximum sentences for aiding and abetting aliens to elude examination and inspection by United States Immigration officials. Finding merit in appellant’s contention that these sentences violated Rule 32(a)(1), F.R.Crim.P., and the Sixth Amendment to the Constitution, we reverse the district court’s refusal to correct the sentence.

On March 17, 1970, appellant was charged in an information with 11 violations of 8 U.S.C. § 1325, and 18 U.S.C. § 2. On March 24, appellant plead not guilty to all 11 counts. Two days later, appellant reappeared in court without an attorney, waived his right to counsel, and plead guilty to each count. After questioning appellant to determine the voluntariness of his plea, the court said, “I will revoke your probation and you will have to serve that two years. I will leave the sentence on this case pending.”

On July 28, 1970, the court issued a writ of habeas corpus ad prosequendum to the warden of the Federal Correctional Institution in La Tuna, Texas, to produce appellant in court the next day for sentencing. Appellant had been transferred from F.C.I. La Tuna to the United States Medical Center at Springfield, Missouri, and the writ was returned unserved.

Appellant was released from custody in June, 1971, but as the result of another offense, was reincarcerated in July, 1972.

On November 10, 1972, the court issued another writ of habeas corpus ad prosequendum to the warden at F.C.I. La Tuna to produce appellant for sentencing on November 14, 1972. On November 13, the court appointed counsel for sentencing. Appellant appeared in court on November 14, represented by appointed counsel, and, in answer to a question from the court, admitted that after being released in 1971, he had gone to Oklahoma and done the “same thing again.” In answer to the argument of defense counsel that no sentence could be imposed because so much time had elapsed since the entry of the guilty plea, the court said, “The court deferred sentencing, and if he had not got in this other trouble I might not have given him time to serve, but it is obvious that this man is not going to profit by his past experiences . . . . ” The court stated to appellant, “It is possible I would have imposed a different sentence if you had behaved yourself. I was waiting to see what you were going to do. You get out and get right back into the same thing. .” The court then imposed the maximum sentence of six months on each of the 11 counts, the sentences to be served consecutively.

On February 13, 1973, appellant moved to vacate the sentence under F. R. Crim.P. 35, and 28 U.S.C. § 2255. This appeal is taken from the denial of that motion.

Although the time for sentencing a defendant is within the sound discretion of the trial judge, that discretion is not totally unfettered. Rule 32(a)(1), F.R.Crim.P., provides, “sentence shall be imposed without unreasonable delay.” In addition, the imposition of sentence is part of the trial for the purposes of the Sixth Amendment speedy trial guarantee, so, in exercising his discretion, the trial judge is bound by both the rule and the Sixth Amendment. Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); United States v. James, 459 F.2d 443 (5th Cir.), cert. den., 409 U.S. 872, 93 S. Ct. 202, 34 L.Ed.2d 123 (1972); United States v. Sherwood, 435 F.2d 867 (10th Cir. 1970), cert. den., 402 U.S. 909, 91 S. Ct. 1381, 28 L.Ed.2d 649 (1971); Lott v. United States, 309 F.2d 115 (5th Cir. 1962), cert. den., 371 U.S. 950, 83 S.Ct. 504, 9 L.Ed.2d 498 (1963); 2 C.A. Wright, Federal Practice and Procedure, § 521. The question of whether the imposition of the sentence is timely depends on the circumstances of each case. Pollard, supra, Lott, supra, ef., Bolduc v. United States, 363 F.2d 832 (5th Cir. 1966). The delay must be purposeful or oppressive to constitute a violation, Pollard, supra. This has led some courts to hold that time alone is not enough to constitute a violation. Whaley v. United States, 394 F.2d 399 (10th Cir. 1968); Welsh v. United States, 348 F.2d 885 (6th Cir. 1965); United States v. Grabina, 309 F.2d 783 (2nd Cir. 1962), cert. den., 374 U.S. 836, 83 S.Ct. 1885, 10 L.Ed.2d 1057 (1963). Nevertheless, time is exactly what the Sixth Amendment and Rule 32 are all about. If there has been an unreasonable delay, and if that delay results in prejudice to the defendant, then a violation has occurred. Naturally, the burden is on the defendant to show prejudice. United States v. James, supra, Brady v. Superintendent, 443 F.2d 1307 (4th Cir. 1971).

In this case, no excuse whatever was shown for the extreme delay in sentencing appellant. The sentencing of the appellant was not delayed because of the trial of co-defendants. See, Lott v. United States, supra, Kaye v. United States, 235 F.2d 187 (6th Cir. 1956). There was no study of the defendant under 18 U.S.C. § 4208. See, Bolduc v. United States, supra. Nor was the defendant a fugitive from justice attempting to evade the jurisdiction of the court. See, Whaley v. United States, supra.

It is true that the court issued a writ of habeas corpus ad prosequendum in July, 1970. But appellant was in federal custody at that time, although he was in Missouri instead of Texas. The government does not allege, however, that he was unavailable to the court at that time. The government simply failed to exercise due diligence to bring appellant before the court for sentencing. He can hardly be blamed for that. Appellant ought not to be made to suffer because he was in one federal institution rather than another when the writ was issued. The delay must be attributed solely to the action or inaction of the government, not to the appellant.

In addition, it is obvious that the appellant was prejudiced by the extreme delay in this case. The court stated clearly at sentencing that it was influenced by events which occurred during the extreme delay between the finding of guilt and sentencing. This statement, combined with the imposition of maximum consecutive sentences on each count, clearly fulfills appellant’s burden of demonstrating prejudice resulting from the delay. United States v. James, supra.

Finally, the government argues that appellant waived his right to a speedy trial. This contention is without merit. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

In summary, appellant has demonstrated extreme and unreasonable delay in sentencing, and has demonstrated that he has been prejudiced by the delay. The proper remedy in such a case is to vacate the sentence and release the defendant from custody. United States v. Fleish, 227 F.Supp. 967 (E.D.Mich. 1964); 8A Cipes, Moore’s Federal Practice, jf 32.02[3].

Reversed and remanded.


author: PHILLIPS, Chief Judge.

text:
    Madeline BOSELY et al., Plaintiffs-Appellants, v. CITY OF EUCLID et al., Defendants-Appellees.
    No. 73-1608.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 5, 1974.
    Decided May 3, 1974.

      Eugene S. Bayer and Thomas Gray, Cleveland, Ohio, for plaintiffs-appellants; Avery Friedman, Cleveland, Ohio, of counsel.
    Charles T. Riehl, Walter, Haverfield, Buescher & Chockley, Cleveland, Ohio, for defendants-appellees; Robert M. Debevec, Law Director, City of Euclid, Euclid, Ohio, on brief.
    Before PHILLIPS, Chief Judge, LIVELY, Circuit Judge, and Mc-ALLISTER, Senior Circuit Judge.
   PHILLIPS, Chief Judge.

This is an appeal from an order of the District Court granting summary judgment in this class action for declaratory and injunctive relief and damages in favor of the City of Euclid, its mayor and councilmen (the City). We affirm.

The appellants represent a class composed of the tenants at a municipally-owned, low income housing project known as Briardale. The gravamen of their complaint, filed on April 29, 1971, is a challenge to the constitutionality of a plan of redevelopment for Briardale and ordinances providing for demolition of the housing project.

The litigants stipulated the following facts: Briardale, composed of some 800 rental units, was constructed by the federal government during World War II to provide housing for persons engaged in national defense activities. 42 U.S.C. § 1521. The City purchased this and another project in 1956 for a sum in excess of six million dollars. The City Council at various public meetings since 1967 discussed Briardale’s decaying condition and the need to redevelop the project. In 1969 the City filed a proposed plan of redevelopment in the Cuyahoga County Recorder’s Office. In 1970 and 1971, the Council passed ordinances providing for the phased demolition of the project.

It was further stipulated that the City Council in 1972 authorized the expenditure of funds to provide moving assistance to needy families displaced by the demolition and hired a Relocation Coordinator to assist residents in finding suitable housing. In late 1972, all parties were invited to a special Council meeting to discuss the redevelopment of Briardale. The majority of those present indicated a preference for single family homes in the area. The litigants stipulated that the rental income to the City from the Briardale project was insufficient for the City to meet its mortgage and other payments on the property.

I. Jurisdiction

After numerous pre-trial proceedings, on April 24, 1973, District Judge Robert F. Krupansky, considering a motion for summary judgment, entered the order from which this appeal was taken. Judge Krupansky invoked jurisdiction under 28 U.S.C. §§ 1331, 1343(1), (2) and (3), the action being one arising out of alleged violations of 42 U.S.C. §§ 1983, 1985(3) and 1986. Subsequent to the District Court’s decision in the present case, the Supreme Court decided City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). In Kenosha, the Court held that the generic word “person” in § 1983 does not include a municipal corporation and, therefore, the District Court in that case erred in invoking § 1343 jurisdiction over a municipal corporation. 412 U.S. at 513. The plaintiffs in Kenosha asserted only a deprivation of § 1983; the appellants herein allege violations of §§ 1983, 1985(3) and 1986. We conclude, however, that this is a meaningless distinction because both §§ 1985(3) and 1986 employ the word “person (s)” and the legislative history that the Supreme Court found applicable to § 1983 is equally applicable to §§ 1985(3) and 1986. Kenosha is thus applicable to the present case.

Unlike Kenosha, the present suit was instituted against both a municipal corporation and its mayor and councilmen in their individual and corporate capacities. The City admits that this court has jurisdiction pursuant to § 1343 to hear the § 1983 et seq. claims against the individual appellees, but asserts that the case should be dismissed as to the municipal corporation. The appellants respond by asserting that the District Court based jurisdiction over the municipal corporation on both § 1331 and § 1343. The District Court’s determination of the presence of § 1331 jurisdiction over the municipal corporation has not been challenged on this appeal.

The Supreme Court in Kenosha, id. at 514, after determining there was not § 1343 jurisdiction over the municipal corporation, remanded the case to the District Court for explicit consideration of the presence of § 1331 jurisdiction. We decline to remand the present appeal for two reasons, in addition to the failure of the City to challenge the presence of § 1331 jurisdiction over the municipal corporation: 1) In the present case, unlike in Kenosha, the District Court expressly found § 1331 jurisdiction to be present and based its decision on the merits thereon; 2) even if we should remand the case as to the municipal corporation, we still would reach the merits of the case as to the individual appellees, against whom relief is sought. Furthermore, we conclude for reasons set forth below that appellants’ claims on the merits are baseless.

II. Motion for Summary Judgment

After invoking jurisdiction, the District Court determined that no genuine issue existed as to a material fact and accordingly entered summary judgment for the City. Rule 56, Fed.R.Civ. P. The City earlier had defended on the dual grounds of lack of subject matter jurisdiction, Rule 12(b)(1), Fed.R.Civ. P., and failure to state a claim on which relief could be granted, Rule 12(b)(6), Fed.R.Civ.P. The appellants complain that the District Court improperly treated the City’s Rule 12(b) (1) motion to dismiss as one for summary judgment in view of the Rule 12(b) declaration that only Rule 12(b)(6) motions can be treated as motions for summary judgment.

We are unpersuaded by this contention. In treating the City’s motion as one for summary judgment, the District Court referred specifically to Rule 12(b)(6). We, therefore, conclude that the District Court properly treated the City’s Rule 12(b)(6) motion as one for summary judgment. Rule 12(b), Fed. R.Civ.P.

III. Mootness

Subsequent to the decision of the District Court, the City instituted eviction actions in Euclid Municipal Court against approximately 31 families remaining in Briardale. A judge of that court issued writs of execution evicting the remaining families if they had not left voluntarily by August 15, 1973. Shortly after the last remaining tenants departed Briardale, the last few remaining structures were demolished.

These occurrences subsequent to the District Court’s decision provide the basis for a further threshold question for this court: Is the case now moot? The City asserts that since Briardale has been demolished and all its residents relocated, no issue remains to be considered on this appeal. The passage of time obviously has stripped this court and the District Court of power to enjoin either demolition of Briardale or eviction of its residents. On the other hand, if the challenged ordinances and plan of redevelopment are declared to have violated the appellants’ constitutional rights, there would remain the issues of damages and incidental relief.

We, therefore, decline to dismiss this appeal as moot. See Ramsburg v. American Investment Company of Illinois, 231 F.2d 333, 336 (7th Cir. 1956), and authorities therein cited.

7F. Procedural Due Process

The appellants’ basic claim on appeal is that they were denied due process in the City’s decision to redevelop Briardale. It is acknowledged that there is no constitutional assurance to adequate housing, Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972). Appellants assert, however, that the summary termination of the municipal service of low cost housing in the absence of due process safeguards violated their constitutional rights. We find no merit in this contention.

The appellants have failed to demonstrate a “legitimate claim of entitlement” to the service provided by the City. Board of Regents v. Roth, 408 U. S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The record reveals that counsel for the appellants stated orally to the District Court that the City had “since 1938 recognized the need for the low cost housing of the type involved in the Briardale development.” Nevertheless, no proof, outside of the City’s purchase in 1956 of Briardale and another project, was proffered by the appellants in support of this statement. Further, in view of the fifteen day cancellation clause in the appellants’ month-to-month leases, we can only conclude that the appellants’ desire to continue residing in Briardale is no more than a “unilateral expectation.” Roth, Id.

The stipulated facts demonstrate not only that the City received the input of the appellants in deciding to redevelop Briardale but also that the City was diligent in assisting in the relocation of Briardale residents. All Council meetings at which redevelopment was discussed were held in public and one special meeting was conducted to receive the input of all interested parties. A full-time Relocation Coordinator was employed to assist residents find suitable housing and funds were expended to provide moving assistance to needy families. Most importantly, for those low income residents, housing was found in another municipally-owned low cost housing project.

We, therefore, hold that the appellants were not denied due process in the City’s decision to redevelop Briardale.

F. Summary Judgment

We come finally to the question of whether the District Court erred in granting summary judgment in favor of the City. 10 Wright & Miller, Federal Practice and Procedure, § 2716 at 430-32 (1973 ed.) states the standard to employ in considering a motion for summary judgment:

“The message is clear; the party who defended against the motion for summary judgment will have the advantage of the court’s reading the record in the light most favorable to him, will have his allegations taken as true, and will receive the benefit of the doubt when his assertions conflict with those of the movant. (Citations omitted.)

See also United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962), and Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962).

The appellants assert that if only the court would hear their “true life story” it would reveal how they have been “pushed around and mistreated” and woul'd indicate a “tremendous gap in human relations” on the part of the City. We have examined the record in detail and, considering the extent of the factual stipulations, conclude that no genuine issue exists as to a fact material to the issue of due process deprivations. In Appolonio v. Baxter, 217 F.2d 267, 271 (1954), this court stated that the “assertion in affidavits of the appellants that at the trial the claimants may produce further evidence does not preclude the granting of summary judgment.” (Emphasis supplied.) See also Legerlotz v. Rogers, 105 U.S.App.D.C. 266, 266 F.2d 457, cert. granted, 361 U. S. 808, 80 S.Ct. 76, 4 L.Ed.2d 57, cert. dismissed, 362 U.S. 938, 80 S.Ct. 803, 4 L.Ed.2d 768 (1959), wherein the court affirmed a summary judgment on the ground that the alleged issue of fact was essentially frivolous and not worthy of the court’s consideration.

Accordingly, we hold that the District Court correctly entered summary judgment in favor of the City.

Affirmed.


text:
    AMERICAN GENERAL INSURANCE COMPANY and Fidelity and Deposit Company of Maryland, Plaintiffs-Appellants, v. FEDERAL TRADE COMMISSION et al., Defendants-Appellees.
    No. 73-2905.
    United States Court of Appeals, Fifth Circuit.
    June 27, 1974.

      Leroy Jeffers, John L. Murchison, Jr., David T. Harvin, George F. Reed, Houston, Tex., for Amer. Gem Ins. Co.
    Richard F. Ober, Gen. Counsel, Decatur H. Miller, Baltimore, Md., for Fidelity & Deposit Co. of Maryland.
    Charles Tobin, Secretary, Ernest G. Barnes, Asst. Director, Nicholas S. Reynolds, Louis R. Sernoff, Attys., Federal Trade Commission Washington, D. C., Robert E. Kopp, Dept. of Justice, Neil H. Koslowe, Washington, D. C., Gerald Hardwood, Actg. Asst. Gen. Counsel, John T. Fischbach, Atty., Federal Trade Commission, Washington, D. C., for defendants-appellees.
    Before DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.
   LEWIS R. MORGAN, Circuit Judge:

In this case, plaintiffs-appellants seek to enjoin the Federal Trade Commission from proceeding against them under § 7 of the Clayton Act, 15 U.S.C. § 18, on the ground that the McCarran-Ferguson Act, 15 U.S.C. §§ -1011-1015, deprives the Commission of jurisdiction over the case. Finding that any such injunction would be premature at this time, we affirm the district court’s dismissal of the complaint.

On June 17, 1971, the Commission issued a complaint, Commission Docket No. 8847, against the Texas-based American General Insurance Co., charging that American General had violated § 7 of the Clayton Act by reason of its . merger with Fidelity and Deposit Co. of Maryland. See 15 U.S.C. § 21. The complaint charged that the effect of the merger “may be substantially to lessen competition or to tend to create a monopoly in the business of underwriting. fidelity and surety bonds in the Uiiited States. . . .”

American General responded that the complaint failed to state a claim, denied the principal allegations of the complaint, and argued that the Commission was without jurisdiction to issue the complaint because the

. transaction which is the subject matter of the Commission’s Complaint involves the business of insurance, which is regulated by State law. Accordingly, the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-15 (1945), renders inapplicable section 7 of the Clayton Act, as amended, 15 U.S.C. § 18, to the merger of respondent American General Insurance Company with Fidelity & Deposit Company of Maryland.

Subsequently, Fidelity & Deposit was permitted to intervene in the administrative proceedings.

On December 27, 1971, American General moved for summary judgment on the issue of jurisdiction under Section 3.24 of the Commission’s rules, 16 C.F. R. § 3.24. On March 7, 1972, an administrative law judge ruled that the Commission lacked jurisdiction to issue the complaint because the “States of Maryland and Texas, and many of the other states, have laws, capable of being enforced, which regulate the business of insurance, within the contemplation and meaning of the McCarran-Ferguson Act.”

Commission counsel appealed the decision of the administrative law judge to the Commission. A three-member majority held that jurisdiction was not barred by the McCarran-Ferguson Act because the states could not regulate the merger activity of national insurance companies. In addition, the Commission held that “the business of insurance for which regulation by a state may preempt Federal jurisdiction does not-include mergers or other combinations of enterprises engaged in the activity of selling insurance.” In its opinion, the Commission vacated the initial decision and remanded the case to the administrative law judge for further proceedings.

On March 5, 1973, American General and Fidelity & Deposit filed a complaint in the United States District Court for the Southern District of Texas seeking a declaratory judgment that the Mc-Carran-Ferguson Act immunized the merger from § 7, and injunctive relief “prohibiting Defendants from conducting any further proceedings in FTC Docket No. 8847.”

On June 5, 1973, 359 F.Supp. 887, the court denied plaintiffs’ motion for a preliminary injunction and granted defendants’ motion to dismiss “for failure to exhaust administrative remedies.” The court concluded

. that there has not yet been any final agency action, that the Federal Trade Commission has not clearly exceeded the bounds of its jurisdiction, and that the Plaintiffs have an adequate remedy at law through review of the final Commission order as provided by the Clayton Act. .

The court opined that were it to reach the merits, it would uphold the Commission’s position: “because a state cannot regulate extraterritorially, the potential regulation of the instant merger by Texas and Maryland, the domiciliary states of the Plaintiffs, does not by way of the McCarran-Ferguson Act deprive the Commission of jurisdiction to challenge the merger under Section 7 of the Clayton Act when the impact of the merger obviously will be felt in all fifty states.” The plaintiffs have appealed.

The rule that a plaintiff must exhaust all available administrative remedies before coming to a federal court for relief is old and well-established. In Myers v. Bethlehem Shipbuilding Corporation, 303 U.S. 41, 51, 58 S.Ct. 459, 463, 82 L. Ed. 638 (1938) the Supreme Court referred to

. the long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. That rule has been repeatedly acted on in cases where, as here, the contention is made that the administrative body lacked power over the subject matter, [footnote omitted].

It is true that certain distinguished commentators have questioned whether the rule is as firm as the Myers Court would imply. K. Davis, Administrative Law Treatise, § 20.02 (1958). Nevertheless, it remains true that the doctrine of exhaustion “is well established in the jurisprudence of administrative law.” McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969). Of course, the doctrine has numerous exceptions. Id.

' In a comprehensive and learned review of this area of the law, this court in United States v. Feaster, 410 F.2d 1354 (5th Cir. 1969), cert. den., 396 U. S. 962, 90 S.Ct. 427, 24 L.Ed.2d 426 (1969), described the relevant exceptions to the rule that administrative remedies must be exhausted prior to review by the courts. The first factor which would permit premature resort to judicial remedies is an international repercussion resulting from the administrative proceedings. McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963). There is not even the merest allegation that this factor is present here.

This second exception was fashioned by the Second Circuit in Fay v. Douds, 172 F.2d 720 (2nd Cir. 1949). A litigant may rely on this exception only if there is a substantial showing that his constitutional rights have been violated. 410 F.2d at 1366. The question in this case is purely one of statutory interpretation and application. No constitutional provision is at issue.

The final exception is based on Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958).

In that case the Supreme Court permitted review of the NLRB’s certification of a bargaining unit which included both professional and nonprofessional employees even though the professional employees had not consented to inclusion in the otherwise nonprofessional unit. This action was a brazen defiance of the express provisions of 29 U.S.C.A. § 159(b)(1). [footnote omitted]. 410 F.2d at 1366. In this case, appellants seek to bring

themselves within the Leedom v. Kyne exception by emphasizing that their challenge to the Commission’s action is jurisdictional. However, it has never been the law that any jurisdictional error, no matter how slight, throws open the gates to premature court action. The jurisdictional area must be gross or egregious to provide an exception to the rule of exhaustion.

The extraordinary remedy of judicial intervention in agency proceedings still in progress is unavailable unless necessary to vindicate an unambiguous statutory or constitutional right, and only when this condition is satisfied will a court look to the general body of equitable jurisprudence and other appropriate sources for the purpose of fashioning relief. Coca-Cola Company v. F. T. C., 475 F.2d 299, 304, (5th Cir. 1973).

It has also been stated that the Leedom v. Kyne exception is “narrow” and “rare-successfully invoked” and that the error must be “of a summa or magna quality as contraposed to decisions which are simply cum error.” 410 F.2d at 1368. We are unwilling at this stage of the proceedings to make a determination of the merits of the jurisdictional question. It is nevertheless obvious from the record in the district court and the briefs and arguments on appeal that the question is a close one. If the Commission is committing error by proceeding against the appellants, its error is not blatant or obvious. The McCarran-Ferguson Act is not without ambiguity, and we feel that the question of its applicability is better left to a review of any final order which may be entered in this case.

Many policy considerations support this holding. A crucial one is “the avoidance of premature interruption of the administrative process.” McKart v. United States, supra, at 193. In addition, the efficiency of the agency is an important consideration, and courts ought not to encourage flouting of the administrative process. Considerations of judicial economy also enter into the equation, since, if no cease-and-desist order is ever entered, the courts need not deal with the jurisdictional question at all. Finally, there are systemic factors to be considered. Professor Jaffe has called the exhaustion doctrine “an expression of executive and administrative autonomy.” L. Jaffe, Judicial Control of Administrative Action, 425 (1965).

It is true, as appellants argue, that the necessity for further fact-finding, which would be a strong argument for requiring exhaustion, does not play a crucial role in this case. However, it has never been the law that exhaustion is not required as to questions of law. In fact, an agency’s interpretation of a statute is entitled to “great deference.” Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). It must be emphasized that

Congress did not contemplate a grant of jurisdiction to the courts to prevent abuse or misuse of administrative power by prior restraint of the exercise of such powers. Lone Star Cement Corp. v. F. T. C., 339 F.2d 505, 510 (9th Cir. 1964).

In summary, we are not convinced that the extraordinary showing of necessity which is needed to justify premature judicial interference, is present in this case. We therefore uphold the district court’s refusal to derail the pending Commission proceedings in this matter.

Affirmed.


author: GOLDBERG, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles Hubert HILL, Defendant-Appellant.
    No. 73-3542
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 17, 1974.
    Daniel P. Self, Jr., Meridian, Miss., for defendant-appellant.

      Robert Hauberg, U. S. Atty., James B. Tucker, Asst. U. S. Atty., Jackson, Miss., for plaintiff-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

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

   GOLDBERG, Circuit Judge:

Defendant Hill appeals from his conviction on two counts of transporting, possessing, selling and transferring distilled spirits in containers not having the appropriate revenue stamps, a violation of 26 U.S.C. § 5205(a)(2). He seeks to have this Court remove the moonshining label attached to his actions by the jury on the basis of six alleged errors in the conduct of the proceedings below. Hill contends that the trial court: (1) prejudiced defendant’s case by remarks made during the course of the trial; (2) inaccurately instructed the jury as to both the nature of the offense and the applicable standard for weighing the evidence; (3) neglected its duty in failing on its own motion to exclude certain hearsay testimony and inflammatory information concerning the accused; (4) improperly permitted the jury to separate during trial recesses; (5) erroneously denied a motion for a directed verdict of acquittal; and (6) abused its discretion in refusing to grant a new trial. We find that these allegations of misconduct and mistake below are without support in either the record of this case or the law of this Circuit, and we affirm.

Defendant cites nine specific comments or actions by the district judge during the course of the trial that allegedly prejudiced his defense by preventing the full development of the evidence in his favor, materially aiding the prosecution in the presentation of its ease, and indicating to the jury the court’s adverse opinion, on the innocence of the accused. It has been long recognized and frequently reaffirmed that a federal trial judge is not relegated to the position of a mere moderator, but may, by timely interventions, elicit testimony from witnesses, comment on the evidence to the jury, and limit the questioning of counsel. Quercia v. United States, 1933, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321; 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; United States v. DeLaughter, 5 Cir. 1972, 453 F.2d 908, cert. denied, 406 U.S. 932, 92 S.Ct. 1769, 32 L.Ed. 2d 135; Kyle v. United States, 5 Cir. 1968, 402 F.2d 443. In so doing, of course, the judge must adhere to stringent standards of impartiality, Herman v. United States, 5 Cir. 1961, 289 F.2d 362, cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93; and this Court will affirm a conviction on the basis of a record disclosing significant judicial participation only when it is convinced that the interventions could not reasonably have led the jury to a predisposition of guilt by improperly confusing the functions of judge and prosecutor. See United States v. Arroyave, 5 Cir. 1973, 477 F.2d 157; United States v. Bays, 5 Cir. 1971, 448 F.2d 977, cert. denied, 405 U.S. 957, 92 S.Ct. 1186, 31 L.Ed.2d 234. We have also noted that,

“[ajbove all, the trial judge must maintain an attitude of impartiality and avoid giving the impression that he believes the accused is guilty. Otherwise, there is risk of a judge’s usurping the function of the jury because of the weight likely to be placed in his opinion.”

United States v. Jacquillon, supra, at 387.

Defendant’s specifications of error, viewed both separately and in the context of the whole record, see United States v. Penner, 5 Cir. 1970, 425 F.2d 729, reveal no such confusion of the roles of judge, jury, and prosecutor. The actions of the trial court challenged here amount to no more than attempts by the presiding judge to expedite the proceedings and to prevent any misunderstanding of a witness’s testimony. While the court’s remarks were at times blunt and, in at least one instance sarcastic, an occasional lapse of patience from the bench will not suffice to overturn a conviction returned after a full and fair presentation of the evidence.

The second contention of error focuses on the court’s charge to the jury. None of the seven instructions now challenged as erroneous and prejudicial provoked any adverse comment from defendant’s counsel at trial, despite the district court’s pointed reminder to counsel that he should make his opinion on the charge known in order to preserve issues for appeal. In light of this acquiescence below, our scrutiny is severely and justifiably circumscribed.

“The Court, of course, may notice ‘plain errors or defects’ affecting substantial rights even though they were not brought to the attention of the trial court. As the plain error rule implies, its application is limited to exceptional situations involving serious deficiencies which affect the fairness, integrity, or public reputation of the judicial proceedings, or which constitute obvious error. This strict standard is necessary in order to promote efficient judicial administration and to prevent parties from gambling for favorable verdicts and then resorting to appeal on errors that might have easily been corrected by objection at trial.” [citations omitted]

United States v. Jacquillon, supra, at 386.

Mindful of the Supreme Court’s admonition to appellate tribunals to “guard against the magnification on appeal of instances which were of little importance in their setting,” we have examined the contested instructions not in isolation, but rather as they appear in the course of a lengthy and largely unchallenged charge. See United States v. Cisneros, 5 Cir. 1974, 491 F.2d 1068; United States v. Williams, 5 Cir. 1973, 473 F.2d 507. Our examination of that charge reveals nothing approaching the Jacquillon plain error standard of obvious mistake or serious deficiency affecting the fairness and integrity of a judicial proceeding. Indeed, the only aspect of the instructions that raises even the barest possibility of prejudice to the accused — the notion that the defendant could be acquitted on the basis of a “probability of innocence” — was included in the charge at the request of defendant’s own counsel.

Appellate counsel concedes that the instances of hearsay and inflammatory testimony, which he considers too numerous to catalogue, passed before the jury without objection by trial counsel. We have nevertheless examined the ■ record for any indication of a violation of the rules of evidence so severe as to constitute plain error and to have deprived defendant of his constitutional right to confront the witnesses against him. See Pointer v. Texas, 1965, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Park v. Huff, 5 Cir. 1974, 493 F.2d 923. The record does not support defendant’s contention of an evidentiary debacle in the district court. The only significant testimony regarding out of court statements involved declarations made by defendant himself. Such admissions pose neither hearsay nor confrontation difficulties. Cf. Nelson v. O’Neil, 1971, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222; Bruton v. United States, 1968, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476.

Defendant’s fourth, fifth, and sixth points of error are frivolous and can be quickly dispatched. The propriety of sequestering the jury is a matter within the sound discretion of the trial court; and the exercise of that discretion will result in reversal only upon a showing of actual prejudice to the accused. United States v. Harris, 5 Cir. 1972, 458 F.2d 670; Tyler v. United States, 5 Cir. 1968, 397 F.2d 565, cert. denied, 394 U.S. 917, 89 S.Ct. 1187, 22 L.Ed.2d 450; Grant v. United States, 5 Cir. 1966, 368 F.2d 658. Defendant has at no point attempted to demonstrate prejudice, either to the district court or to this Court on appeal.

The arguments of insufficient evidence and improper denial of a new trial rest largely on defendant’s contention that the testimony of a government informer was simply too “incredible” to be believed, due in part to the witness’s obvious bias and the existence of an outstanding state felony indictment against her. However, defendant does not allege that any undisclosed deal had been made between the witness and government officials promising lenient treatment in return for favorable testimony, see Giglio v. United States, 1972, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104; and the information relied on here to attack credibility was made known to the jury. We have no authority to substitute our own assessment of the truthfulness of the witness for the final determination reached by that jury after a full disclosure. Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680.

Every round of defendant’s attack on the judgment below has fallen wide of the mark. The conviction is affirmed.

Affirmed.

      . During the colloquy at the bench prior to the delivery of the charge, the judge admonished defendant’s counsel that, “[n]ow is the time you are talking to the Fifth Circuit, so speak up.”

      . Glasser v. United States, 1942, 315 U.S. 60, 83, 62 S.Ct. 457, 471, 86 L.Ed. 680.