author: TRASK, Circuit Judge:

text:
    Roy O. HOFFMAN, Director, Region 20, NLRB, Plaintiff-Appellee, v. INTERNATIONAL LONGSHOREMEN’S & WAREHOUSEMEN’S UNION, LOCAL NO. 10, Defendant-Appellant. Roy O. HOFFMAN, Director, Region 20, NLRB, Plaintiff-Appellee, v. BROTHERHOOD OF TEAMSTERS & AUTO TRUCK DRIVERS LOCAL NO. 70, IBTCWHA, and James R. Muniz, Defendants-Appellants. Roy O. HOFFMAN, Director, Region 20, NLRB, Plaintiff-Appellee, v. SAN FRANCISCO TYPOGRAPHICAL UNION LOCAL NO. 21, etc., et al., Defendants-Appellants.
    Nos. 71-1818 to 71-1823, 71-1827 to 71-1829 and 71-2073.
    United States Court of Appeals, Ninth Circuit.
    Jan. 25, 1974.
    As Amended March 7, 1974.
    Rehearings Denied in No. 71-1818-71-1823, 71-1827 March 26, 1974,

      Norman Leonard (argued) of Gladstein, Leonard, Patsey & Andersen, San Francisco, Cal., for defendant-appellant ILWU Local 10.
    Victor J. Van Bourg, Stewart Weinberg (argued) of Levy & Van Bourg, San Francisco, Cal., for defendant-appellant Teamsters Local 70.
    Duane B. Beeson (argued) of Brundage, Neyhart, Grodin & Beeson, San Francisco, Cal., Cecil F. Poole of Jacobs, Sills & Coblentz, San Francisco, Cal., for defendant-appellant San Fancisco Typo. Union Local 21.
    Marcel Mallet-Prevost, Asst. Gen. Counsel, Julius G. Serot, NLRB, Washington, D. C., Milo V. Price, Walter L. Kintz, Jr., W. David Smullin, (Roy Hoffman, Director, Region 20) NLRB, San Francisco, Cal., Marvin Roth, Deputy Asst. Gen. Counsel, Washington, D. C. (argued) Nathan R. Berke of Severson, Werson, Berke & Melchior, William B. Irvin of McLaughlin & Irvin, San Francisco, Cal., for plaintiff-appellee.
    Before MERRILL and TRASK, Circuit Judges, and KELLEHER, District Judge.

       Honorable Robert J. Kelleher, United States District Judge for the Central District of California, sitting by designation.

   TRASK, Circuit Judge:

This is an appeal from two judgments holding appellant unions and union officers guilty of civil contempt and a portion of the appellants guilty of criminal contempt. The contempt actions were based upon alleged violations of two separate injunctions issued by the District Court under section 10 (l) of the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq., hereinafter called the Act. Appeal is taken pursuant to 28 U.S.C. § 1291. We affirm.

California Newspapers, Inc., doing business as San Rafael Independent Journal (Journal), is engaged at San Rafael, California, in publishing a daily newspaper of general circulation in Marin County called The Independent Journal. Jurisdictional requirements of the Act with respect to gross revenues and interstate commerce are clearly present.

Since on or about January 7, 1970, a labor dispute had existed between the Journal and San Francisco Typographical Union No. 21 (Local 21), International Typographical Union, AFL-CIO. In that month a strike was called against the newspaper and picketing began at the Journal’s San Rafael publishing plant.

On February 11, 1970, the Regional Director of the National Labor Relations Board (the Board) filed with the District Court a petition for a temporary injunction pursuant to section 10(J) of the Act, against Local 21, Teamsters Local 85 and Teamsters Local 287. The petition was predicated upon a charge filed by the Journal that the named respondents were violating section 8(b)(4)(B) of the Act by engaging in secondary boycotts. Particularly they were picketing and inducing employees of various neutral employers at the Port of San Francisco to interfere with and prevent the delivery of newsprint to the Journal. After a hearing on February 13, 1970, at which the respondents presented no evidence, a temporary injunction was issued against all respondents enjoining further picketing at the pier and further acts designed to cause the neutral employers to refuse delivery of newsprint. On February 13, 1970, a Deputy United States Marshal served a copy of a Temporary Restraining Order identical with the Temporary Injunction on Longshoremen’s Union, Local 10 which represented longshore employees at the Port of San Francisco. The injunction was based upon a finding that all three locals had engaged in a joint secondary boycott plan.

On April 28, 1970, the Board filed a second petition charging that Local 21 was conducting illegal secondary boycott activities at entrances to various retail stores in the vicinity to induce the public not to patronize the stores because they were advertising in the Journal. Local 21 stipulated that it would not contest the facts charged, waived a hearing and consented to the issuance of an injunction forthwith as prayed for. The court considered the petition and issued the injunction on April 28, 1970.

Both the February 13 injunction and that of April 28 were directed to the named respondents and “their officers, representatives, agents, servants, employees, attorneys, and all members, persons and other labor organizations acting in concert or participation with them or any of them.”

Notwithstanding the April 28 injunction Local 21 continued to picket the retail stores in substantially the same way. On May 28, 1970, after hearing, the court found Local 21 and certain of its officers and agents including its vice-president DeMartini and organizer Abrams in civil contempt and directed that they purge themselves, inter alia, by fully complying with the injunction order. The court retained jurisdiction for the purpose of imposing a compensatory fine and considering a compliance fine.

Despite the civil contempt order, the tempo of illegal activities in violation of both injunctions increased, with other locals participating. These included Longshoremen’s Local No. 10; Teamsters No. 70 and James R. Muniz, its president; and Teamsters No. 85 and Timothy Richardson, its business manager. The effort broadened to boycott or quarantine San Rafael and all of Marin County, curtailing deliveries of all supplies, causing traffic tie-ups and attempting to prevent delivery trucks from entering exit ramps from main highways to enter the city.

On October 10, 1970, the petition in the present case was filed seeking adjudication in civil and criminal contempt for violations of both the February 13 injunction and that of April 28. At the outset of the hearing in the District Court the criminal and the civil cases were severed with the criminal to be tried first. A request for a jury trial in the criminal case was denied. On December 24, 1970, at the close of the hearing the District Court determined that the allegations of the petition had been proved beyond a reasonable doubt with respect to union appellants Local 21, Teamsters Local 70 and Teamsters Local 85, and individual appellants Abrams, Muniz and Richardson, and that those appellants were guilty of criminal contempt. The court also found that the allegations of civil contempt had been established by a preponderance of the evidence as to all of those guilty of criminal contempt, plus Longshoremen’s Local 10 and individual appellant DeMartini. The order of December 24 with respect to the civil action contains certain standard purgation requirements in the way of notices, and imposes a compliance fine of $7,500 a day against the unions and $100 per day against .individual appellants for each day such individual fails to comply with the order. Finally, it retains jurisdiction for the purpose of imposing a compensatory fine.

In the criminal case a fine was levied against each of the three unions in the sum of $25,000 with a provision for remission of $15,000 of each fine if the court is satisfied at the end of one year with the appellants’ compliance with the court’s orders. Sentence of individual defendants was suspended and each was put on probation for one year. If probation was violated, each would subject himself to the power of the court to impose a sentence of imprisonment up to, but not exceeding, six months. A compensatory fine was later imposed in the sum of $21,208.15 in the civil proceeding.

Appellants raise a number of questions directed at the sufficiency and admissibility of evidence adduced during the proceeding, the inadequacy of the language of the temporary injunctions to put appellants upon notice of the activities within the scope of the injunctions, and the technical deficiency of certain of the pleadings. We have examined each in view of the importance of the proceeding and find that each is without substantial merit. Without detailing the evidence, which was voluminous, it clearly justified and supported the court’s findings as to both criminal and civil contempts. The language of the injunctions was abundantly sufficient. Appellants were represented by counsel and no request for clarification was made. On the contrary appellants through their house papers boasted they were going to continue despite the court’s injunctions. The same applies to the argument of the lack of precision of the allegations of the petition for an adjudication of criminal contempt. Appellants and their attorneys were fully apprised of the charges; they deliberately chose to risk not to obey them.

Where the purpose of issuing the citation for contempt is remedial in scope in order to enforce compliance with the court’s order, the contempt is civil. Shillitani v. United States, 384 U.S. 364, 368-370, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966). In such cases a jury trial is not required. Shillitani, supra; Cheff v. Schnackenberg, 384 U.S. 373, 377, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966). No request for a jury trial was made in the civil contempt cases here. Where a fine is imposed or the purpose is punishment, the contempt is criminal. Penfield Co. of California v. SEC, 330 U.S. 585, 590-591, 67 S.Ct. 918, 91 L.Ed. 1117 (1947); Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172 (1941). It is from the criminal contempt proceedings which imposed fines and probation that, complaint is made of the denial of a jury trial.

The court has jurisdiction to grant injunctive relief or temporary restraining orders in order to protect the public welfare or preserve the status quo pending a hearing or to enforce its orders. We pointed out in San Francisco-Oakland Newspaper Guild v. Kennedy, 412 F.2d 541, 544, 545 n. 3 (9th Cir. 1969):

“All that is required under Sec. 10(1) for a regional director to petition for such an injunction is reasonable cause to believe an unfair labor practice is being committed. The preliminary injunction should be granted by the court if the court finds that the factual allegations and the propositions of law underlying the regional director’s petition are not insubstantial and frivolous so that he has reasonable cause for believing the Act has been violated, and if the court finds that injunctive relief is appropriate. On appeal, review is limited to a determination of whether the district court’s findings are clearly erroneous.
“Neither the district court nor this court is called upon to decide whether in fact a violation of the Act has been committed; the ultimate' determination with respect to this question is reserved exclusively for the Board, subject to review by the courts of appeals pursuant to Sec. 10(e) and (f) of the Act . . . . ”

The court must also have the power to enforce its orders if the Act is to be effective. Madden v. Grain Elevator, Flour & Feed Mill Workers, 334 F.2d 1014 (7th Cir. 1964), cert. denied, 379 U.S. 967, 85 S.Ct. 661, 13 L.Ed.2d 560 (1965); Evans v. Typographical Union, 81 F.Supp. 675 (S.D.Ind.1948).

Here the District Court, acting upon the petition of the Board, did grant in-junctive relief under Section 10(1) of the Act, 29 U.S.C. § 160 (l). When that injunctive relief was disregarded civil sanctions were imposed and when the court’s orders were willfully flaunted and disobeyed criminal penalties followed.

In support of their contention that they were erroneously denied a jury trial, appellants rely upon 18 U.S.C. § 3692, which reads as follows:

“In all cases of contempt arising under the laws of the United States governing the issuance of injunctions or restraining orders in any case involving or growing out of a labor dispute, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the contempt shall have been committed.”

Appellants acknowledge that the language represents a codification of the Norris-LaGuardia Act, in which the language granting contempt powers was originally limited to “all cases arising under this [Norris-LaGuardia] Act.” Sec. 11, 29 U.S.C. § 111. See United States v. United Mine Workers, 330 U.S. 258, 298, 67 S.Ct. 677, 91 L.Ed. 884 (1947). It is argued that a revision of 1948 (Act of June 25, 1948, ch. 645, 62 Stat. 701-02, 844), which provided that the contempt power extended to “all cases . . arising under the laws of the United States . . .”, necessarily is all inclusive and thus envelops within its scope the present NLRA controversy. Thus, the argument concludes, a jury is required if requested.

The thesis of appellants is too broad. Section 3692 does not stop when it refers to “all cases of contempt arising under the laws of the United States .” It limits the definition by adding after the words “laws of the United States,” the words “governing the issuance of injunctions or restraining orders in any case involving or growing out of a labor dispute.” The purposes of the Norris-LaGuardia Act to limit and restrict the equitable powers of the courts to intervene in labor disputes between private employers and unions are not the same as the powers involved in the administrative scheme of the Labor Management Relations Act and its amendments. There is no reason to believe that Congress intended its grant of equitable powers to district courts as embodied in section 10 (l) of the Act, 29 U.S.C. § 160 (l), to be repealed by the recodification of section 11 of the Norris-LaGuardia Act, 29 U.S.C. § 111, into 18 U.S.C. § 3692. Brotherhood of Locomotive Firemen & Enginemen v. Bangor & Aroostook R. R. Co., 127 U.S.App.D.C. 23, 380 F.2d 570, 580, cert. denied, 389 U.S. 327, 88 S.Ct. 437, 19 L.Ed.2d 560 (1967); Madden v. Grain Elevator, Flour & Feed Workers, 334 F.2d 1014, 1020 (7th Cir. 1964). See Schauffler v. United Association of Journeymen, 230 F.2d 572 (3d Cir.), cert. denied, 352 U.S. 825, 77 S.Ct. 37, 1 L.Ed.2d 48 (1956); NLRB v. Red Arrow Freight Lines, 193 F.2d 979 (5th Cir. 1952).

Although the authorities cited pertain principally to civil contempts we hold to the view that the jurisdiction of the district courts to enforce their orders made under section 10 (l) of the Act applies as well to criminal contempts, and that a jury trial is not compelled by virtue of the provisions of 18 U.S.C. § 3692.

Having thus concluded, it remains necessary to consider appellants’ contention that the court erred in not summoning a jury upon reques't because of the seriousness of the violations charged and the resulting weight of the penalties imposed. The trial court imposed two penalties in the criminal proceeding. As to the individuals it found guilty of criminal contempt, it suspended sentence and placed them on probation for one year, determining that if the condition of probation was broken they would subject themselves to the power of the court to impose a sentence of imprisonment of “up to but not exceeding, six months.” It appears well established that jury trials are not constitutionally required in those cases where the penalty does not exceed six months’ imprisonment. Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966); United States v. Barnett, 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23 (1964); Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958). See also Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

Cheff, supra, was an instance of criminal contempt of an order of the Court of Appeals of the Seventh Circuit arising out of proceedings before the Federal Trade Commission. Cheff was found guilty and sentenced to six months’ imprisonment. His petition for certiorari was granted with review limited to the question whether after a denial of a demand for a jury, a sentence of imprisonment of six months was constitutionally permissible under Article III and the Sixth Amendment. The Court held that it was. It stated that it was “constrained to view the proceedings” as “equivalent to a procedure to prosecute a petty offense” which under its decisions did not require a jury trial. Clearly, then, it appears that sentences of imprisonment for a term of six months or less are neither constitutionally impermissible nor proscribed by the Supreme Court under its supervisory power over the inferior federal courts. We therefore hold that the criminal penalties meted out to the individuals here in the form of suspended sentences and probation are not constitutionally invalid.

As to the appellant unions (Local 21, Local 85 and Local 70), each had imposed upon it a fine of $25,000. Payment of $15,000 of that sum was suspended for one year and was then to be remitted to the union upon a determination by the court that the union had not engaged in any further violations of injunction orders. The unions contend here that the amount of the fines establish them as other than “petty” in nature and therefore the denial of their requests for a jury trial was erroneous. The basis of this argument is that the full text of 18 U.S.C. § 1(3) provides:

“Any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both, is a petty offense.”

Since the Court in Cheff relied upon this statute for its characterization of a six months’ maximum imprisonment as being “petty,” appellants argue that the statute must necessarily determine the $500 fine as being the maximum fine which could permissibly be characterized as “petty” and thus imposed without a jury trial or a waiver of jury. Although there is a syllogistic allure in the argument, decisions subsequent to Cheff cast doubts upon the contention’s validity. Bloom v. Illinois, supra, involved a conviction in an Illinois state court for criminal contempt and a sentence to imprisonment of 24 months as the penalty. The defendant’s timely demand for a jury trial had been refused, and his conviction affirmed. Certiorari having been granted, 386 U.S. 1003, 87 S.Ct. 1346, 18 L.Ed.2d 431 (1967), the Court reexamined the limitations of the rule that criminal contempts could be tried without a jury. Duncan v. Louisiana, supra, decided the same day as Bloom had held that the right to a jury trial extended to the states.

In Bloom, the Court recounted that in Green v. United States, supra, it had held to be constitutionally permissible summary trials without a jury in all contempt cases, based upon common law rules and upon the concept that such power in the courts was considered essential to the proper and effective administration of justice. It then pointed out that Barnett, supra, had signalled a possible change of view in the event of a severe punishment in a criminal contempt case. Two years later, in 1966, Cheff, supra, held that six months’ imprisonment was a petty and not a severe punishment and did not require a jury. The Court in Bloom stated that it “accept[s] the judgment of Barnett and Cheff that criminal contempt is a petty offense unless the punishment makes it a serious one.” 391 U.S. at 198, 88 S.Ct. at 1480. As to when the offense ceases to be “petty” and becomes “serious” the Court concluded:

“In Duncan we have said that we need not settle ‘the exact location of the line between petty offenses and serious crimes’ but that ‘a crime punishable by two years in prison is a serious crime and not a petty offense.’ ” Id. at 211, 88 S.Ct. at 1487.

In this plethora of discussion establishing and reexamining rules as to when a jury trial is required, there is hardly a word spoken about the line at which the measure in dollars of á fine causes the contempt to cease being “petty” and to become “serious.” Certainly we cannot understand Cheff as holding that the sum of $500 constitutes that line simply because it uses 18 U.S.C. § 1(3) to express a point of division between permissible and impermissible terms of imprisonment at which a jury is required. A deprivation of his liberty for a period of more than six months could certainly be serious to any individual, whereas a fine of $500 to a large corporation or to a large union might have no deterrent or punitive effect at all.

A distillate of the holdings of the more modern decisions of the Supreme Court on the question of the right to trial by jury in a criminal proceeding leads us to believe that if there is an existing statute which authorizes the imposition of a penalty of more than six months imprisonment, the penalty is not a “petty” one but a “serious” one and a jury or waiver thereof is required. Duncan v. Louisiana, supra. If the criminal proceeding is in contempt with no statutory penalty but an open-ended penalty resting on the court’s discretion, a hindsight determination is made upon review to determine whether the offense was “petty” or “serious” based upon the severity of the punishment. If the penalty imposed is six months’ imprisonment or less, then the offense was a “petty” one and no jury was required. Cheff v. Schnackenberg, supra; Duncan v. Louisiana, 391 U.S. 145, 162 n.35, 88 S.Ct. 1444, 20 L.Ed.2d 491.

Where the contemnor is a corporation, association, union or other artificial person and a fine is the ordinary punishment, the rules become obscure. The Court has never said that while a $500 fine marks the contempt as being “petty” under 18 U.S.C. § 1(3) with no jury required, a fine of $501 labels it as “serious” with the necessary consequence that a jury must have been empaneled. A fine which might under all of the circumstances constitute only a slap on the wrist of one artificial entity might be a “serious” penalty to another. Accordingly, we can go no further than to decide this case, and upon that basis we do not find that the judgment of the District Court was constitutionally prohibited.

The judgment is therefore affirmed.

      . In addition to the consolidated appeals from the District Court’s orders finding appellants guilty of civil and criminal con-tempts which are at issue here, the unfair labor practice case before the NLRB arising out of this controversy proceeded separately to final hearing and decision. San Francisco Typographical Union No. 21, 188 N.L.R.B. No. 108, 76 L.R.R.M. 1627 (1971). Local 21 and certain of its officers were cited for civil contempt in a companion case. The Board petitioned this court for enforcement of its order and Local 21 appealed the civil contempt citation. Those two appeals were consolidated, argued and decided by this court in NLRB v. San Francisco Typographical Union No. 21, 465 F.2d 53 (9th Cir. 1972).

      . “Whenever it is charged that any person has engaged in an unfair labor practice . . . the officer or regional attorney shall . . . petition any United States district court . . . for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter. Upon the filing of any such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provision of law . . . . ” 29 U.S.C. § 160(l).

      . “The Trial of all Crimes, except in Cases of Impeachment, shall be by jury . . . .” U.S.Const., art. III, § 2. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . . ” Id., amend. VI.

      . The Court referred to a portion of 18 U.S.C. § 1 (1964 ed.), “ ‘[a]ny misdemeanor, the penalty for which does not exceed imprisonment for a period of six months’ is a ‘petty offense.’ ” 384 U.S. at 379, 86 S.Ct. at 1526.
      It also concluded its opinion by an expression of its point of view in recognition of its responsibility for “effective administration” of the federal courts, stating:
      “Therefore, in the exercise of the Court’s supervisory power and under the peculiar power of the federal courts to revise sentences in contempt cases, we rule further that sentences exceeding six months for criminal contempt may not be imposed by federal courts absent a jury trial or waiver thereof.” Id. at 380, 86 S.Ct. at 1526.

      . The opinion in Bloom does not comment on the statement in Cheff that “sentences exceeding six months for criminal contempt may not be imposed by federal courts absent a jury trial or waiver thereof.” 384 U.S. at 380, 88 S.Ct. at 1526. The implication is that such sentences are considered serious.

      . In Dimean, the Court pointed out that because there was no statute involved in Cheff defining the penalty for criminal contempt in terms of months or years of imprisonment, the Court was forced to look at the penalty actually imposed as the best evidence of the seriousness of the offense. 391 U.S. at 162 n. 35, 88 S.Ct. 1444, 20 L.Ed.2d 491.

      . It is interesting to note that in Cheff, his codefendant Holland Furnace Co. was fined $100,000. Both Cheff and the corporation petitioned for certiorari. The petition of Cheff was granted and in the opinion the question of petty versus non-petty measured by length of imprisonment was discussed at length. The petition for certiorari of the corporation was denied and the Court in Cheff did not discuss a measure of dollars which might define a fine as being petty or serious.

      . We note United States v. R. L. Polk & Co., 438 F.2d 377 (6th Cir. 1971), to the contrary but are not persuaded by it.

      . The six month-$500 provision of 18 U.S.C. § 1(3) defining the limits of “petty” offenses became law in 1930. Act of Dec. 16, 1930, ch. 15, 46 Stat. 1029. While the value of personal freedom has not depreciated in the intervening period the same cannot be said either of the value of the dollar or of the growth in dollars of the assets of large organizations.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Francis HAINES, Plaintiff-Appellant, v. Otto KERNER, Former Governor, State of Illinois et al., Defendants-Appellees.
    No. 72-1972.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 26, 1974.
    Decided Jan. 14, 1974.

      Michael P. Seng, Cairo, Ill., Rodney E. Eyster, Chicago, Ill., for plaintiff-appellant.
    William J. Scott, Atty. Gen., Melbourne A. Noel, Jr., Asst. Atty. Gen., Chicago, 111., for defendants-appellees.
    Before CLARK, Associate Justice, STEVENS, Circuit Judge, and NOLAND, District Judge.

       The Honorable Tom O. Clark, Associate Justice of the Supreme Court of the United States, Retired, is sitting by designation.

       The Honorable James E. Noland, District Judge for the Southern District of Indiana, is sitting by designation.

   PER CURIAM.

Plaintiff was placed in solitary confinement for a period of 15 days because he hit a fellow inmate over the head with a shovel. He brought suit against nine prison and state officers for $250,000 in damages, claiming (1) that he did not receive due process in the disciplinary proceedings; and (2) that the conditions of his solitary confinement were cruel and unusual within the meaning of the Eighth Amendment. After we affirmed an order dismissing his complaint, the Supreme Court held that he was entitled to an opportunity to offer proof in support of his allegations. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652. Trial before a jury resulted in a verdict for the defendants. On this appeal, plaintiff contends (1) that the trial judge should have held as a matter of law that he was denied due process and, in any event, the instructions on the due process issue were erroneous; and (2) that as a matter of law his punishment violated the Eighth Amendment and, in any event, the court erroneously omitted an essential instruction with respect to the Eighth Amendment issue. Other claims of error are also advanced.

The facts relevant to the due process claims are not in dispute and there is only minor disagreement in the testimony concerning the conditions of plaintiff’s solitary confinement. The jury’s verdict requires us to accept the defendants’ version of the evidence to the extent that it is in dispute.

On March 10, 1968, Officer Duncan, a defendant, prepared a handwritten “Keepers Report” on the plaintiff addressed to the Warden and Deputy stating:

“For hitting inmate Doherty #33371 on top of his head with a long handle shovel. Inmate Haines came in with shovel from the outside. He banged the shovel on shower room partition pretty hard. Inmate Doherty said ‘Frank, don’t bang the shovel.’ Haines said, ‘O.K. if that’s what you want take this,’ and he hit Doherty with shovel.” Plaintiff’s Ex. 2.

At the time of the incident Officer Duncan was on the other side of a shoulder-high partition; according to plaintiff’s testimony, “Mr. Duncan came out and took Dougherty back in the bathroom, to the washroom, to wash his head off, wash the blood out of his head. He was bleeding very bad.” (Tr. 20-21)

After Duncan’s report, which is sometimes described as a “Disciplinary Ticket,” had been prepared, plaintiff was requested to appear before Officers Rogers and Lence. Lence was the disciplinary officer on that day. He read Duncan’s ticket to the plaintiff and then, according to plaintiff’s testimony at the trial:

“They asked me why I did it. I told them I wanted to hit him, I hit him.
“Q Was anything else said?
“A Mr. Lence told me, he said, ‘Give us some sort of a reasonable explanation.’ He says, ‘If you don’t give us no explanation we will have to send you to the limit.’ They said, ‘Give us some reasonable explanation,’ and he would cut the fifteen days down to ten days. I told him, ‘No need of that.’ I had no reasonable explanation other than I hit him.
“Q Did Mr. Lence thereafter impose a penalty upon you?
“A At that time he imposed it.
“Q What did he impose ?
“A Fifteen days.” (Tr. 21-22.)

Duncan’s disciplinary ticket was reviewed by Senior Captain Sympson who recommended to the warden that plaintiff be demoted to “C” grade. On the following day, a report of the Merit Staff, consisting of four correction officers including Assistant Warden Lence, was approved by the warden. That report contains a statement describing the plaintiff’s background, his past disciplinary record, the incident as reported by Officer Duncan, and the recommendation that the plaintiff be demoted from “A” grade to “C” grade. The punishment of 15 days in isolation commenced on October 10, the date of the incident; plaintiff did not participate in the subsequent consideration of the matter by Senior Captain Sympson, the Merit Staff, or the Warden.

Although the place of plaintiff’s confinement for 15 days is described as an “isolation cell,” he actually shared it with other inmates. The cell was approximately 8 by 16 feet; it contained a small window, a wash basin with only cold water, a toilet, and no bed. Plaintiff was required to sleep on the floor with only two blankets for the first few days, and thereafter with additional blankets. He was not allowed to exercise out of his cell and took only one shower during the 15-day period. He saw a psychiatrist on one occasion, but received no medical attention. His diet consisted of one full meal at noon and two slices of bread in the morning and in the evening.

Heat was supplied by a radiator located in the hall outside the cell itself. Plaintiff testified that it became so cold that he could see his breath, and that his feet, which had been injured in an industrial accident in 1927, pained him as a result of the cold. He testified that soap and towels were not provided. Sympson, a defense witness, testified that soap and towels were available to isolation inmates upon request (Tr. 112); plaintiff admitted that he made no such request (Tr. 41). Sympson also testified that he had visited the cell “usually every day” in 1968 and “never

did see it get too cold in there. It was always warm enough.” (Tr. 111-112. See also Tr. 89.) There was no evidence that plaintiff had complained of the cold. There was evidence that the prison doctor visited the isolation cell “frequently.” Plaintiff testified that he did not make any complaint to the doctor about his feet (Tr. 54); he had had difficulty with his legs for many years (Tr. 53); there was no evidence that his confinement in isolation aggravated his difficulties or caused him any permanent harm.

I.

Plaintiff contends that he was entitled to the procedural safeguards set forth in Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484, or at the very least, to the minima identified in Miller v. Twomey, 479 F.2d 701, 715-716 (7th Cir. 1972). Alternatively, he argues that if due process of law was a fact question for the jury, the jury was improperly instructed. We reject these arguments.

First, it is significant that the present suit seeks monetary and not injunctive relief. Since good faith is a defense to state officials sued for damages under 42 U.S.C. § 1983, Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L. Ed.2d 288, we believe that in a damage action the conduct of the prison officials should be tested against constitutional doctrine as described in prevailing judicial decisions at the time of their action. See Adams v. Carlson, 488 F.2d 619 p. 629 n. 16 (1973). The law of this circuit upon which prison officials acting

in good faith could reasonably rely in 1968 was set forth in Walker v. Pate, 356 F.2d 502 (7th Cir. 1966); defendants’ conduct of the disciplinary proceedings was in accord with the teaching of that case.

Second, it is conceivable that the circumstances of a particular case might be such that if prison officials were to grant a prisoner only the minimal safeguards outlined in judicial decisions, their actions might be so manifestly unjust as to offend “fundamental fairness —the touchstone of due process.” Gag-non v. Scarpelli, 411 U.S. 778, 790, 93 S. Ct. 1756, 1763, 36 L.Ed.2d 656. This is not such a case. The record reveals no way in which greater procedural safeguards could have assisted the plaintiff, since he admittedly committed the offense in question, and there is no uncertainty about the underlying facts.

We believe that, as a matter of law, plaintiff’s right to due process of law was not infringe, and that the district court would not have erred had it directed a verdict for the defendants. It follows that there can have been no error in the district court’s refusal to give the jury plaintiff’s proposed instructions on due process.

II.

Plaintiff argues that, in the trial judge’s instruction to the jury on cruel and unusual punishment, he captured the element of barbarity but not the element of disproportionality, which are contained in the Eighth Amendment’s proscription. Since we are of the opinion that the trial judge could properly have directed a verdict for the defendants on plaintiff’s Eighth Amendment claim, we find the omission to have been harmless.

Plaintiff’s briefs do not make clear whether he accepts the jury’s determination that the punishment was not unduly harsh, in the sense of barbarous, or whether he contends that the court’s brief instruction tainted that entire decision. We believe that justice requires us to assume, for purposes of deciding this appeal, that the plaintiff makes the latter claim.

We believe the prohibition against cruel and unusual punishment, like all constitutional guarantees of individual rights, amounts to a standard to govern the conduct of governmental officials and, therefore, raises a question of law. In deciding whether the punishment to which plaintiff was subjected is acceptable under the Eighth Amendment, two factors constrain us. First, we must decide the question in light of the facts of the incarceration as found by the trier of fact. Courtney v. Bishop, 409 F.2d 1185, 1187-1188 (8th Cir. 1969). In the present case, the verdict indicates that the jury resolved the factual dispute about the' conditions of solitary confinement against the plaintiff. Second, as in the case of plaintiff’s due process claims, we must measure these facts against “the evolving standards of decency that mark the progress of a maturing society,” from which the Eighth Amendment draws its meaning, Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (opinion of Warren, C. J.), to the extent they had evolved by 1968. This is especially true because this is a suit for damages. Adams v. Carlson, supra. However much the increased willingness of courts to intervene in matters of prison discipline since 1968 may have affected or reflect society’s sense of decency to prisoners, we are confident that defendants’ conduct in 1968 did not violate the Eighth Amendment. See Ford v. Board of Managers of New Jersey State Prison, 407 F.2d 937 (3rd Cir. 1969).

There is no doubt that a punishment can be cruel and unusual if grossly out of proportion to the severity of the crime for which it is imposed. Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793. See also Furman v. Georgia, 408 U.S. 238, 325, 92 S.Ct. 2726, 33 L.Ed.2d 346 (Marshall, J., concurring), 393-394 (Burger, C. J., dissenting). Since solitary confinement has traditionally been an appropriate means of maintaining prison discipline Kostal v. Tinsley, 337 F.2d 845 (10th Cir. 1964), we believe that defendants did not punish the plaintiff excessively by confining him for fifteen days for having engaged in conduct which had a substantial likelihood of causing serious bodily harm.

III.

The plaintiff also argues that a number of other errors were made in the instructions to the jury and that it was error to exclude plaintiff’s Exhibit 9.

In view of our disposition of plaintiff’s basic due process and Eighth Amendment claims, we need not discuss his arguments concerning proper instructions for intent and proximate cause. We need only pass upon those instructions which could have affected the jury’s resolution of disputed facts concerning the conditions of the cell in which plaintiff was confined.

In Kerr v. City of Chicago, 424 F.2d 1134, 1139 (1970), we held that it was error to refuse to give the instruction concerning a civil rights plaintiff’s guilt or innocence of a charge in the trial of which his civil rights were allegedly infringed. In the present case, plaintiff’s guilt of the violation was unquestioned. Since the questions put to the jury assumed the plaintiff had constitutional rights which might have been violated, notwithstanding his guilt of the violation, the failure to give the instruction could not have confused the jury.

The plaintiff argues that the district court erred in permitting defense counsel to impeach plaintiff by means of his felony conviction more than 30 years ago. We agree with the reasoning of Justice Schaefer that, as a general rule, the prejudicial impact of such evidence is likely to outweigh its probative value. People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695 (1971). See United States v. McCarthy, 445 F.2d 587 (7th Cir. 1971). But those cases, unlike the present one, were criminal prosecutions, and the defendants, against whom the evidence was introduced, were not at the time imprisoned. Since the jury knew that plaintiff had been a prisoner for many years, our “conviction is sure that the error did not influence the jury, or had but very slight effect” upon it, Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 90 L.Ed. 1557. We therefore hold that the error was harmless.

Finally, plaintiff claims that it was error to exclude, his Exhibit 9, which was a list of prisoners from Menard who had been turned over to the State’s Attorney for criminal prosecution. It was offered to prove that there was a possibility that plaintiff might have been prosecuted for his assault and, therefore, he should have been given Miranda warnings. The court properly rejected the exhibit as collateral to the issues in this case. Even if any statement that plaintiff made would be inadmissible in a criminal prosecution because of the omission of Miranda warnings, that consequence has no relevance to the issues tried in this case.

Based on our review of the entire record, the briefs and the arguments of counsel, we are satisfied that the trial judge gave the plaintiff a fair opportunity to offer proof in support of his allegations and that he failed to prove that he is entitled to recover damages from the defendants.

The judgment is

Affirmed.

      . Officer Lence testified as follows:
      “Q You read the ticket?
      “A I asked him if he had anything to say then and he said no and I said — do you want me to carry on?
      “Q Yes, please.
      “A I told him normally, because of his age, instead of the fifteen I would give him ten. He said he would do fifteen so I told him—
      “Q Mr. Haines told you he could do the fifteen?
      “A Yes.” (Tr. 71.)

      . The description of the incident as originally reported by Duncan was supplemented by the following comment:
      “When Doherty asked ‘Frank, why did you hit me’ Haines said ‘I’ll show you some of the old gang spirit is still around here.’ While Doherty was washing and cleaning the blood off just before I took him to the hospital, Haines said ‘Mr. Duncan, you better write a ticket on me to keep yourself in the clear.’ This is all I saw and know of what happened.” Plaintiff’s Ex. 4.

      . The demotion resulted in the loss of certain privileges, but not the forfeiture of any “merit time” because plaintiff had no merit time to his credit. He had committed a number of rule infractions in the past.

      . Plaintiff testified that another man shared the cell with him for the first ten days and “the last couple of days I was in there everybody was coming in there and they would put them in wherever they fit when they came in in a group of them.” On three or four different occasions, he testified, there were “about five” in the cell at one time.

      . Plaintiff originally testified that he had only two blankets for the first six days, but on cross-examination admitted that the period might have been for only three days.

      . He also testified that he removed his false teeth because they became “smelly.”

      . This conclusion is buttressed by the Supreme Court’s determination to apply the specific procedural guarantees outlined in Morrissey v. Brewer prospectively. 408 U.S. at 490, 92 S.Ct. 2593.

      . In his argument concerning plaintiff’s proposed Instruction No. 16, plaintiff suggests that due process is violated if an agency, having promulgated rules, fails to observe them. But not every violation of state law by a state agency raises a question under the Due Process Clause of the Fourteenth Amendment. In this case the violations of prison regulations which plaintiff claims to have. occurred do not amount to constitutional deprivations, and plaintiff has not demonstrated any right to relief for such violations as a matter of state law.

      . “A punishment may he cruel and unusual, if under the circumstances, it is of such a character as to shock one’s general sense of elemental decency and fundamental fairness. Decency and fairness must be judged in light of contemporary standards as they existed in 1968.”

      . Compare Walker v. Pate, supra, with Miller v. Twomey, supra.


author: LAY, Circuit Judge. BRIGHT, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Joseph Armand OLIVER, Appellant.
    No. 73-1283.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 17, 1973.
    Decided Feb. 25, 1974.
    Rehearing and Rehearing En Banc Denied March 27, 1974.

      W. H. Bates, Kansas City, Mo., for appellant.
    William Kitchen, Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before LAY and BRIGHT, Circuit Judges, and EISELE, District Judge.

       G. THOMAS EISELE, District Judge, Eastern District of Arkansas, sitting by designation.

   LAY, Circuit Judge.

Defendant was found guilty of kidnapping under 18 U.S.C. § 1201. The victim of the alleged kidnapping testified that on November 16, 1972, while walking near her school dormitory in Kansas City, Missouri, at approximately 9:30 p. m., the defendant forced her into a car and drove to a secluded place where he raped her. The FBI confirmed that fibers similar to those within the carpet in the defendant’s car were found on the girl’s underclothing.

The sufficiency of the evidence to sustain the conviction is not challenged on appeal. The sole error alleged is the exclusion by the district court of testimony of three witnesses offered by the defendant Oliver to show the prosecuting witness’ poor reputation for truth and veracity.

The defense rested its entire case on the credibility of the prosecutrix. She testified that on the evening in question, she left the dormitory, after school curfew hours, to go to a nearby shopping area. She related that the defendant stopped his car at a lighted intersection in a residential area and asked her for directions to a restaurant. While she was pointing toward Main Street, she said the defendant got out of the car and forced her into the car on the driver’s side. On cross-examination she denied that she had gotten into the car voluntarily. She originally said that the time interval which elapsed from when he first asked her directions to when he forced her into the car was three minutes. On redirect examination she changed this to six seconds. She admitted visiting with the defendant in his car about her family, the fact that she had lived with her father, an Air Force officer, overseas, and that she was thinking of getting a job at the telephone company. She said she did this to calm the defendant. Defendant’s counsel asked her about other details of conversation relating to her going back to Nebraska to get her car, quitting school, moving out of the dormitory, etc., but she denied she had told him those things. She described how she was abducted when the defendant forcibly grabbed her with one hand behind the neck and pushed her into the car. She admitted she had originally told the FBI that he had grabbed her by both arms. She testified that when the defendant grabbed her she did not say anything to him and was too afraid to scream. She admitted she had told the FBI that she had screamed at the defendant and asked to be let go. She said the defendant at all times had held her firmly around the neck and drove her a long distance to the secluded area where she was raped. The path the car traveled was through busy intersections and streets with stop lights, but she said the defendant drove recklessly and never stopped his car at any time. After the car stopped she said defendant continued to hold her forcibly around the neck with one hand, pulled her blue jeans and pants just below her knees and raped her. She said she struggled throughout. After the rape, she testified that on the way back she got out of the car when defendant stopped at a stop sign and she went to a private home. A Mr. Hartley came to the door. She first called her boy friend and then Mr. Hartley called the police. Hartley did not testify, but his wife, who was upstairs when the girl came to the door, testified. She said she heard the girl crying, saying she had been raped. She said the girl was composed and not hysterical. The police came and took her to the University of Kansas Medical Center. Dr. Brandwine, a resident in obstetrics and gynecology, examined her. He found two small red rings on both arms, but no evidence of any bruises on any part of her body. There was no trace of blood nor any evidence of trauma on her lower pelvic area. There was no evidence of marks or trauma about the neck area. She had no torn clothing.

The only witnesses offered by the defense were the complaining witness’ former roommates. Two of the three girls still lived with her on November 16, 1972, the date of the alleged rape. None of the witnesses had known the complaining witness prior to the start of school in September, 1972. Defense counsel, out of the presence of the jury, conducted a voir dire examination of the three witnesses. After the offer of proof, the trial court ruled that none of the witnesses was qualified to testify as to the prosecutrix’ reputation for truth and veracity in the community for the following reasons:

(1) The reputation about which they sought to testify was not in the community in which she lived, but rather was her reputation in the dormitory.
(2) The witnesses had only known her for approximately seven weeks.
(3) The testimony regarding community reputation consisted in large part of the personal opinions of the witnesses.

The trial judge allowed them to testify only as to the prosecutrix’ tendency to bruise easily. They each testified that the prosecutrix had previously told them that she bruised easily. She had earlier denied this. The girls had previously seen black and blue marks on her when she had had minor bumps. She had told them she took vitamins plus iron because of her condition.

We find the court erred in excluding their testimony as to the prosecutrix’ reputation for truth and veracity and require a new trial.

The rationale for limiting reputation testimony to the “community in which he lives” is to restrict evidence of repute to reputation among the people who know the person best. McCormick, Evidence § 44 at 92 (2d ed. 1972).

However, this rule must be applied in a realistic and practical manner. Professor McCormick observes:

But as an exclusive limitation it would not be appropriate in this country today, where a person may be little known in the suburb or city neighborhood where he lives, but well known in another locality where he spends his working days or in several localities where he does business from time to time. Thus, today it is generally agreed that proof may be made not only of the reputation of the witness where he lives, but also of his repute, as long as it is “general” and established, in any substantial community of people among whom he is well known, such as the group with whom he works, does business or goes to school.

McCormick, Evidence § 44 at 92-93 (2d ed. 1972) (emphasis added).

Professor Wigmore echoes this understanding :

But in the conditions of life today, especially in large cities, a man may have one reputation in the suburb of his residence and another in the office or the factory at his place of work; or he may have one reputation in his place of technical domicile in New York and another in the region of the mines of Michigan or the steel-mills of Ohio where his investments call him for supervision for portions of time. There may be distinct circles of persons, each circle having no relation to the other, and yet each having a reputation based on constant and intimate personal observation of the man.
There is every reason why the law should recognize this. Time has produced new conditions for reputations. The traditional requirement about “neighborhood” reputation was appropriate to the conditions of the time; but it should not be taken as imposing arbitrary limitations not appropriate in other times. “Alia témpora, alii mores.” What the law, then as now, desired was a trustworthy reputation; if that is to be found among a circle of persons other than the circle of dwellers about a sleeping-place, it should be received.

5 Wigmore, Evidence § 1616 at 488 (3d ed. 1940) (emphasis added).

In accordance with this reasoning, courts have readily extended the concept of community to include the community in which one works, as well as where one lives. See, e. g., United States v. Parker, 447 F.2d 826 (7th Cir. 1971); State v. Jackson, 373 S.W.2d 4 (Mo. 1963); People v. Cobb, 45 Cal.2d 158, 287 P.2d 752 (1955) (en banc); People v. Kronk, 326 Mich. 744, 40 N.W.2d 788 (1950). Cf. United States v. Salazar, 425 F.2d 1284 (9th Cir. 1970).

In People v. Colantone, 243 N.Y. 134, 152 N.E. 700 (1926), the New York Court of Appeals held that an instructor and other students at defendant's school should have been allowed to testify as to his reputation. The court noted:

The only place where he can make a reputation, good or bad, is among his associates in his particular activities or in the personal contacts of his life where he actually lives it. * * *
We think that the Appellate Division was right in ruling that to confine the evidence of the defendant’s reputation in this case merely to the place where he resided was too limited an application of the rule of good character evidence, and that the testimony offered should have been received.

Id. at 702.

We conclude that those persons who have had daily contact with the complaining witness, even though it was for a short period of two months, are competent to testify as to her general reputation at the time. The fact that the witnesses had known her for a short period of time does not by itself render their testimony inadmissible. This factor goes to the weight of the evidence and is for the jury to evaluate. Cases finding character witnesses incompetent to testify relate to lack of foundation for reasons other than short periods of acquaintance.

The third reason the district court gave for exclusion of the testimony of the three character witnesses related to its concern that the three girls were giving their personal opinions as to the truth and veracity of the complainant rather than testimony reflecting her community reputation.

We agree that much of the voir dire examination, conducted outside the presence of the jury, reflected improper interrogation and answer. Defense counsel, undoubtedly straining to lay foundation, went beyond his intended proof. Specific incidents may only be inquired into on cross-examination of a witness testifying as to character for truthfulness. See Proposed Rules of Evidence, Rule 608(b), 51 F.R.D. 315, 389 (1971). Nevertheless, we think it manifest that the defendant made clear the purpose of calling the witnesses and that a sufficient foundation was laid for them to testify as to the complainant’s reputation for truth and veracity in the community in which she lived. Once foundation was demonstrated, the court should have made clear to both counsel and the witnesses the limited extent to which the questions and answers would be restricted on direct examination.

We recognize the wide latitude generally accorded the trial judge in determining the admissibility of evidence. However, as we have set forth, these witnesses were qualified to testify as to the prosecutrix’ reputation for truth and veracity. This was not a question of relevancy resting in the trial court’s discretion. The evidence was rejected here because the trial court erred in its holding as to what constituted a proper foundation. The totality of the defense offered here rested on challenging the credibility of the complaining witness. The jury deliberated over ten hours before rendering the guilty verdict. Questions of credibility are peculiarly within the province of the jury. This being so, it is critical that all material evidence relating to truth and veracity be admitted for the jury’s consideration.

The issue before us is whether the exclusion of such testimony amounted to prejudicial error. See Michelson v. United States, 335 U.S. 469, 480, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Panger v. Duluth, W. & P. Ry., 490 F.2d 1112 (8th Cir. 1974). We find it did. On the record before us, it is impossible to say that there is no “reasonable possibility” that the exclusion of the evidence might not have contributed to the conviction. See Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L. Ed.2d 171 (1963). On the record, the evidence of guilt as to the kidnapping was not so “overwhelming” as to render harmless the exclusion of the testimony. See Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

As noted in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239 (1946), the fact that this is a criminal case is significant:

[T]he appellate court [cannot] escape altogether taking account of the outcome. ... In criminal causes that outcome is conviction. This is .different, or may be, from guilt in fact. It is guilt in law, established by the judgment of laymen. And the question is, not were they right in their judgment, regardless of the error or its effect upon the verdict. It is rather what effect the error had or reasonably may be taken to have had upon the jury’s decision.

Kotteakos, supra at 764, 66 S.Ct. at 1247.

Recently this court affirmed its adherence to the Kotteakos standard of determining prejudicial error:

“If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand * * *. But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.”

United States v. Stabler, 490 F.2d 345 (8th Cir. 1974), quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248 (1946).

Applying this standard to the facts and circumstances of the present case, we cannot say that the exclusion of the testimony of the complaining witness’ three roommates as to her reputation for truth and veracity was harmless. We reverse and remand for a new trial.

BRIGHT, Circuit Judge

(concurring).

I concur completely with Judge Lay’s views. I add my individual comments solely to emphasize that the excluded testimony would have cast serious doubt on the prosecuting witness’ version of events and might well have led to the defendant’s acquittal.

Under the indictment in this case, the Government’s obligation was to prove that the defendant knowingly transported in interstate commerce a person who had been “unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away and held for ransom or reward or otherwise.” 18 U.S.C. § 1201. On the record in this case, the victim’s testimony relating to forcible abduction is entirely uncorroborated and somewhat suspect. Without doubt, its weaknesses would have been highlighted for the jury by the proffered evidence, had it been admitted.

At the close of the prosecution’s case, the defense produced three witnesses who had been the roommates of the victim at the time in question The trial court was extremely dubious about the admissibility of their testimony and, therefore, insisted upon hearing a voir dire examination of the witnesses outside the presence of the jury as an offer of proof before allowing them to testify. In addition to testimony about the victim’s propensity to bruise easily — which was eventually admitted — and about the victim’s reputation for truth and veracity — which has now been discussed at length in Judge Lay’s opinion — the witnesses were prepared to testify to the following:

1) That the victim claimed on an earlier occasion in Kansas City that she had been raped by a young man, and then on further questioning by her roommate later retracted the statement;

2) That, on a number of occasions, the victim had gone out to beer-bars with her roommates, but later was “picked up” by various men who were strangers to the group;

3) That the victim stayed out late at night, after hours as stipulated by school regulations, and on some occasions, all night; and

4) That, on the day following the alleged kidnap-rape, the victim displayed no signs of being upset and indeed went out to a bar and “went home with another guy” that night.

Whether the proffered testimony on these latter four points was admissible as relevant to the issue of consent as a defense to the charge of kidnapping or as extrinsic impeachment evidence eon-tradicting statements on collateral matters made by the prosecuting witness are difficult questions which we are not called upon to answer, since the appellant does not raise them as error. But the very existence of this testimony encourages us to look more closely at the exclusion of the testimony relating to the victim’s reputation for truth and veracity.

In reviewing the record in this case, I am left with the distinct feeling that the trial judge improperly restricted the defendant’s opportunity to present an adequate defense to the charge of kidnapping. I recognize that the exclusion of the proffered testimony relating to the victim’s reputation for truth and veracity stemmed from the trial court’s concern to shield the prosecuting witness from a collateral assault upon her integrity. Yet the defendant too must be considered.

The prosecutor’s proof that the defendant had kidnapped the victim rested upon her unsupported testimony, and the defendant was entitled to contest her reliability. Since the trial court deprived him of that opportunity, reversal is clearly merited.

      . Defendant alleges additional error in the district court’s refusal to allow him to submit voluntarily to a polygraph examination at his own expense. Defendant’s counsel urges that he was denied the opportunity to lay the predicate for an attempt to convince the district court that the status of the art and science of polygraph examinations had progressed to the point where results of such examinations should be admitted into evidence. In view of our reversal on other grounds it is unnecessary to pass on the question presented. Presumably counsel can renew his motion on remand before the second trial. We simply note that no prejudice to the government can flow from allowing the defendant the opportunity to at least attempt to lay a foundation for the admissibility of a polygraph test at trial. Although this court has in the past held such tests inadmissible, we note recent court decisions have found under certain circumstances a polygraph examination may be admissible. See, e. g., United States v. Ridling, 350 F.Supp. 90 (E.D.Mich.1972); United States v. Zeiger, 350 F.Supp. 685 (D.D.C.1972); cf. United States v. Wainwright, 413 F.2d 796 (10th Cir. 1969), cert. denied, 396 U.S. 1009, 90 S.Ct. 566, 24 L.Ed.2d 501 (1970).

      . Uniform Rules of Evidence, Rule 63(28) refers to “the community in which he then resided or in a group with which he then habitually associated.” Proposed Federal Rules of Evidence, Rule 803(2.1), 51 F.R.D. 315, 422 (1971), admits evidence of reputation “among his associates or in the community.”

      . For example, in United States v. Trollinger, 415 F.2d 527 (5th Cir. 1969), the charaeter witness had known the defendant one month, but had not lived in either of the cities in which the defendant had recently resided and to which inquiry was directed. See also United States v. Straughan, 453 F.2d 422 (8th Cir. 1972); United States v. Salazar, 425 F.2d 1284 (9th Cir. 1970).

      . According to her own testimony, the victim did not try to exit the car at any time until after the sexual act occurred, although the car repeatedly slowed for automatic traffic signals. She admits that she engaged in what appears to have been a casual conversation with the driver about her parents, her school, and other topics. Although she had told her roommates on several occasions that she bruised easily, the examining physician found her neck unmarked despite her claim that the defendant gripped her by the neck during the entire trip which started in Kansas City, Missouri, and terminated in Prairie Village, Kansas.

      . Because of the trial court’s insistence that the evidence be concluded that evening —although the defense did not even begin its case until after 5 :00 P.M. — defense counsel agreed that he would rely upon the testimony of these three witnesses and forego the testimony of a fourth roommate who would have been available the next morning.

      . Typical of the reputation testimony proffered was that of one former roommate who testified in part:
      Q Are you acquainted with the reputation for truth and veracity of Jalaine Mo-Quay in the community and with the people with whom she was living on November 16, 1972, and shortly thereafter, and prior thereto, for several weeks?
      A During that time, I would say that everybody that lived with her, in both dorms, would feel the same way I do, that nobody could believe anything she said. People didn’t even listen to her any more. They didn’t even want to talk to her.
      * * *
      Q Are you acquainted with her reputation for truth and veracity, then?
      A Yes.
      Q And what was that reputation?
      A Not very good.
      Another witness under cross-examination by the prosecutor explained regarding the victim:
      At first she had us all pretty snowballed that she was the sweet innocent type. But later on it appeared that she had been lying to all of us. She would tell us one thing and run upstairs. and tell some more girls another thing, and she came back that was lying about us and about everybody else.

      . In this connection, one witness observed: “any girl who is raped just doesn’t go home with another guy the very next night.” She contrasted the victim’s calm reaction to the alleged rape with an earlier incident when the victim went into near-hysterics when some boys had tried to break into the girls’ apartment.


author: FRED M. TAYLOR, District Judge: KILKENNY, Circuit Judge

text:
    Wilbur E. DOW, Jr., Plaintiff-Appellant, v. Max H. WYMAN, Defendant-Appellee.
    No. 71-2948.
    United States Court of Appeals, Ninth Circuit.
    Feb. 21, 1974.
    Rehearing Denied March 20, 1974.
    DeWitt Williams (argued), J. Kenneth McMullin of Williams, Lanza, Kastner & Gibbs, Seattle, Wash., for plaintiff-appellant.
    William R. Smith (argued), William V. Vetter of Graham, McCord, Dunn, Moen, Johnston & Rosenquist, Seattle, Wash., for defendant-appellee.
    Before HUFSTEDLER and KILKENNY, Circuit Judges and TAYLOR, District Judge.

       District of Idaho, sitting by designation.

   OPINION

FRED M. TAYLOR, District Judge:

This diversity action was instituted by plaintiff, Wilbur E. Dow, Jr. (appellant), a lawyer of long standing in the State of New York, against defendant, Max H. Wyman (appellee), a citizen of the State of Washington, to recover $25,000 attorney fees claimed to be due and owing under and pursuant to a property settlement agreement, dated January 23, 1970, made and entered into by and between the appellee and his wife, Karen Wyman.

Subsequent to appellee’s answer raising several defenses, including the defense that appellant’s right to payment of attorney fees was subject to an unfulfilled condition precedent, the appellee moved for a summary judgment. The district court concluded that the agreement was not ambiguous and that any right appellant may have had thereunder was subject to an unfilled condition precedent. Summary judgment was rendered for appellee and this appeal is from said judgment which we are constrained to affirm.

Marital difficulties having arisen between appellee and his wife, Karen Wy-man, both of Seattle, Washington, and after having been separated for several months, Mrs. Wyman contacted appellant and employed him to assist her with her marital problems. Thereafter, appellant, as Mrs. Wyman’s attorney, negotiated a separation and property settlement agreement between Karen Wyman and appellee, resulting in the drafting of a written agreement by appellant and the appellee’s attorney. The final draft of the agreement was executed by appellant’s client, Karen Wyman, and the ap-pellee on January 23, 1970 in the State of Washington.

The preamble to the agreement provides :

“WHEREAS differences have arisen between M. H. Wyman of Seattle, Washington, and his wife, Karen Wy-man of Seattle, Washington, as a result of which they have for some months been living separate and apart and an action for divorce has been or is about to be instituted in the State of Idaho by Mrs. Wyman against Mr. Wyman, the following agreement settling the property rights of the parties is entered into, to become effective upon the granting of a divorce decree in the said Idaho action.” [emphasis added]

Paragraph 12 of the agreement provides :

“12. Mr. Wyman shall pay to Wilbur E. Dow, Jr., attorney for Mrs. Wy-man, an attorney’s fee of Twenty-Five Thousand and No/100 Dollars ($25,000), said payment to be made in full when the said Idaho Divorce Decree is granted.” [emphasis added] And the concluding paragraph of the agreement provides:
“This separation agreement, a copy of which is retained by each of the parties hereto, shall become effective upon the granting of the said Idaho Divorce Decree and shall thereupon be binding upon the parties hereto and their respective heirs and legal representatives.” [emphasis added]

The services of appellant, in behalf of Mrs. Wyman, terminated upon the execution of the agreement. Appellant was not at any time requested to and did not perform services for and in behalf of appellee.

Following the execution of the agreement, Karen Wyman went to Sun Valley, Idaho as contemplated, for the purpose of establishing the required residence to obtain an Idaho divorce. A few days prior to establishing her required six weeks residence in Idaho, she and appel-lee were reconciled, at which time she returned to Seattle with appellee in his airplane. Although Mrs. Wyman had employed an Idaho lawyer to institute the divorce proceedings, no such proceedings were ever instituted in Idaho. It appears that the reconciliation failed and on May 18, 1971, Karen Wyman brought a divorce action in the State of Washington, which action, so far as we are aware, is still pending.

Appellant contends that there are genuine issues as to material facts which should have been resolved after a trial and therefore the district court erred in rendering a judgment as a matter of law. We disagree.

Admittedly, the appellant’s action is predicated upon the written agreement to which he is a third party beneficiary. The issue then is whether under the terms and conditions of the agreement of January 23, 1970, the appellant is entitled to recover the attorney fees specified in the agreement from the appellee. The district court held that the agreement was unambiguous in regard to the payment of attorney fees to appellant by appellee for the services rendered by appellant to Karen Wyman in obtaining the property settlement. It is well settled that the determination of whether a written instrument is ambiguous is a question of law for the court. See Dale v. Preg, 204 F.2d 434, 435, 14 Alaska 299 (9th Cir. 1953); Underwriters at Lloyd’s of London v. Cordova Airlines, Inc., 283 F.2d 659, 663, fn. 6 (9th Cir. 1960), and Central Credit Collection Control Corp. v. Grayson, 7 Wash.App. 56, 499 P.2d 57, 59 (1972).

It is abundantly clear that the agreement prescribes the conditional nature of appellee’s obligation to pay appellant the attorney fees in question. Obviously the payment of the fees was a part of the property settlement which, according to the preamble to the agreement, did not become effective until a divorce was granted to Mrs. Wyman in an Idaho action for a divorce. Also, paragraph 12 of the agreement clearly states that ap-pellee’s obligation to pay the fees was conditioned on the obtaining of an Idaho divorce decree by Mrs. Wyman. In addition, the last paragraph of the agreement provides that the agreement was not to become effective until the granting of the Idaho divorce decree. Mrs. Wyman did not obtain an Idaho divorce decree as contemplated and consequently the condition of the agreement was not met in order to establish the obligation of appellee to pay the attorney fees to appellant.

We agree, as argued by appellant, that he is entitled to be paid for his services, rendered for and in behalf of Mrs. Wyman, but we disagree that under the terms of the agreement he is entitled to be paid by appellee. If, as argued by appellant, the appellee is obligated to pay the fees regardless of whether Mrs. Wyman obtained an Idaho divorce decree, the agreement could and should have so provided without specifically stating otherwise. It is not an uncommon occurrence for persons having marital difficulties to effect a reconciliation subsequent to a property settlement agreement and before a divorce decree is finally obtained. It clearly appears that appellant did not and could not expect appellee to pay his fees unless and until an Idaho divorce was obtained by his client, otherwise, the obligation of appellee to pay him would not have been contingent upon the granting of an Idaho divorce as provided in the agreement.

We affirm.

KILKENNY, Circuit Judge

(dissenting) :

Keeping in mind that the legal services were completely performed, that the value of the services had been definitely determined and that only the payment of the $25,000.00 was postponed, I would hold that the language of Item 12 is sufficiently ambiguous to permit the introduction of parol evidence. In these circumstances, a trial is necessary in order to determine the situation and intention of the parties, their relation to the subject matter and the purpose to be accomplished by the language of the instrument. Closely in point is Noord v. Downs, 51 Wash.2d 611, 320 P.2d 632 (1958). Bank of America Nat’l Trust & Savings Ass’n v. Engleman, 101 Cal.App.2d 390, 225 P.2d 597, 599 (1950), cited with approval in Noord, is also in point. If a trial were had, the court might well resolve the ambiguity in favor of appellant’s contention that the language of the item was meant to fix a convenient time for payment and not for the purpose of embodying a condition limiting the liability of the appellee. The evidence might well convince the trier of the facts that if the language created a condition, it was one which appellee, in effect, warranted would occur and assumed the risk of its non-occurrence. Noord, supra, p. 615 of 51 Wash.2d, 320 P.2d 632.

Appellant’s rights under the agreement should be ascertained from a fair and reasonable construction of the language used in the light of all the surrounding circumstances when the parties executed the contract. Conditions precedent are not favored and the courts will not construe stipulations as conditions precedent unless required to do so by plain, unambiguous language. United States v. Schaeffer, 319 F.2d 907, 911, (CA 9, 1963), cert. denied 376 U.S. 943, 84 S.Ct. 798, 11 L.Ed.2d 767 (1964).

Since, in my opinion, this is not a proper case for the entry of a summary judgment, Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), I would reverse and direct a trial in conformity with the principles stated in Noord.

      . “Mr. Wyman shall pay to Wilbur E. Dow, Jr., attorney for Mrs. Wyman, an attorney’s fee of $25,000, said payment to be made in full when the said Idaho divorce decree is granted.”


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. W. Horace LOWDER, Appellant.
    No. 73-1176.
    United States Court of Appeals, Fourth Circuit.
    Submitted Dec. 28, 1973.
    Decided Feb. 22, 1974.
    Scott P. Crampton, Asst. Atty. Gen., and Meyer Rothwacks, John P. Burke, Robert L. Baker, Richard P. Slivka, Attys., U. S. Dept, of Justice, on brief for appellee.
    W. Horace Lowder, pro se.

      Before WINTER, CRAVEN and BUTZNER, Circuit Judges.
   PER CURIAM:

W. Horace Lowder was convicted in January, 1973, in a trial by jury, of one count of conspiracy to defraud the United States by obstructing the Internal Revenue Service in its task of computing and collecting revenue (18 U.S.C. § 371) and two counts of knowingly filing false corporate income tax returns (26 U.S.C. § 7206(1)). Lowder was sentenced to two years’ imprisonment on each count and was fined $10,000 on the conspiracy count and $5,000 on each of the other two counts.

The government’s case was based on the theory that Lowder utilized his intimate connection with six family-owned corporations to foster an intricate scheme whereby their tax liability would be obscured and evaded, in the years 1961-65. The basic facts as to those years for each corporation follow:

(1) All Star Mills, Inc. (Mills): The original family corporation, founded in 1932 by Lowder’s father; principal business was sale of flour and animal feed; Lowder’s ownership 11%;%. There were 26 other stockholders.
(2) Lowder Farms, Inc. (Farms): A second family-owned corporation, founded in 1950 by Lowder’s father and uncle; principal business of beef cattle and farming; Lowder’s ownership 11% %. There were 24 other stockholders.
(3) All Star Hatcheries, Inc. (Hatcheries): Founded in 1959 by Low-der for the business of hatching and growing poultry (broilers); Lowder and wife owned 100% of stock.
(4) All Star Foods, Inc. (Foods): Founded in 1959 by Lowder to raise layers and produce and market eggs; Lowder owned 51% through stock held by him and Hatcheries. Mills owned 49%.
(5) , (6) All Star Industries, Inc., and Consolidated Industries, Inc., were both named as co-conspirators but their activities did not play any significant role. The former was formed in 1961 to hold a mortgage on property owned by Foods; the latter was formed to be the legal owner of a farm. Lowder owned 100% of the former, 33%% of the latter.

Lowder throughout the relevant years was the active manager of the affairs of each corporation. He held, among others, the position of secretary-treasurer in each, was in charge of the overall business and financial operations for all, including bookkeeping, and signed each of the corporate tax returns. That Low-der was responsible for the practices alleged to have constituted a scheme to cover up tax liability was not disputed by him; the other shareholders and officers apparently gave him a free hand in decision-making.

The four active corporations were Mills, Farms, Foods, and Hatcheries, all of whose books and records were kept in the offices of the original company, Mills. Almost all of the paper work— handling sales invoices, posting accounts, etc. — was handled by Mills’ employees.

In addition to regular business with third parties, these four corporations, along with the two inactive ones, engaged in a substantial number of inter-corporate transactions. Their records over the four-year period showed that some $17 million was transferred by checks running from each corporation to the five others; that some $5 million of this amount was attributable to loans extended or loans repaid; and that the remaining $12 million was reflected as expenses on the books of the paying corporations. The nature and validity of these expensed transfers — whether the amounts represented transactions in real goods and services or whether they were mere transfers of money fraudulently treated as “expenses” to avoid a showing of profits — was the crux of the case before the jury.

The major contentions advanced by Lowder are: (1) conviction on the first count was barred by the statute of limitations, 18 U.S.C. § 3282; (2) the employment of a net worth method in count two was erroneous; (3) the convictions on each count rested on insufficient evidence. For the major portion of the proceedings in the district court and before us, Lowder represented himself. There is no claim that his lack of counsel was the result of indigency. In January, 1972, three months after his indictment and one year before the trial, Lowder discharged his retained attorney over a fee dispute. The legal and factual complexity of the charges have made his chosen course hazardous, but we have endeavored to scrutinize the record and give the assigned errors full consideration. We decline, however, to hear argument pro se.

COUNT I

The conspiracy conviction is assailed as barred by the applicable statute of limitations. We do not agree and, therefore, we affirm.

Lowder and the six corporations were charged with conspiring, from January, 1961, up through the date of the indictment, October 8, 1971, to defraud the United States “by impeding, impairing and obstructing the lawful functions of the Internal Revenue Service, in the ascertainment, computation, assessment and collection of revenue” from the four active corporations.

As alleged and proved the essence of the government’s case was that: (1) each corporation had a different accounting year — Mills was on a calendar year basis and the other five were each on different fiscal years; (2) the transfers of money, ostensibly paid for supplies such as feed, would usually occur in large amounts towards the close of the fiscal year for the transferor/“pur-chaser”; (3) these transfers, treated as expenses, would in virtually every instance wipe out then-existing profits which had been accumulating to the transferor during its taxable year; (4) the “seller”/transferee would in turn eliminate the effect these amounts had on its books as receipts (and potential profits) when its taxable year closed a few months later by another transfer similarly expensed, and so on, in a process denoted as “rolling” by the investigating agent; (5) the transfers of money, in the aggregate, overstated the value of the goods actually changing hands, i. e., Mills did sell feed to Hatcheries, but not nearly in the quantities which would justify the amounts expensed on the books; (6) the fact that Mills and Farms were on an accrual basis method of accounting and Hatcheries and Foods were on a cash basis method was utilized by Lowder to obscure the real transactions; and (7) the underlying documents — invoices, ledger cards, etc. — against which the validity of these transfers could have been cheeked were deliberately destroyed or concealed.

Of the eighteen alleged overt acts, all of which were corporate income tax filings for the years in question, the latest occurred on March lb, 1966, the date of the filing of Mills’ return for the previous calendar year. The date of the indictment is October 8, 1971, approximately five years and seven months after the date of the last overt act alleged therein.

Before the trial, the court ruled that the six-year statute of limitations specified in 26 U.S.C. § 6531(1) applied to the conspiracy count as well as to the fraudulent filing charges. Lowder asserts that the first count, charging a conspiracy to defraud under 18 U.S.C. § 371, was governed by the general five-year limitation period specified in 18 U.S.C. § 3282, but we think the six-year limitation period in 26 U.S.C. § 6531 governs. The general conspiracy statute, 18 U.S.C. § 371, contains no period of limitations. Limitations, for indictments under § 371, are those supplied by other provisions of law, or where there are none, by 18 U.S.C. § 3282 which is a general statute of limitations applicable “[e]xeept as otherwise expressly provided by law.” Thus, § 3282 applies where no other statute is applicable, and, stated conversely, its application is ousted when there is a special limitation period prescribed for a specific offense.

In the case of prosecutions of violations of the tax laws, 26 U.S.C. § 6531 provides, in relevant part:

No person shall be prosecuted for any of the various offenses arising under the internal revenue laws unless the indictment is found or the information instituted within 3 years next after the commission of the offense, except that the period of limitation shall be 6 years—
(1) for offenses involving the defrauding or attempting to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner .

It thus appears that for a conspiracy to defraud the United States by filing false and fraudulent tax returns — the crime charged against Lowder, § 6531 prescribes a six-year period of limitations and, as part of the overall statutory scheme, § 3282, by its terms, is inapplicable.

Two authorities do apparently stand opposed to what seems to be this fairly obvious statutory scheme: Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); and United States v. Klein, 247 F.2d 908 (2 Cir. 1957), cert. denied, 355 U.S. 924, 78 S.Ct. 365, 2 L.Ed.2d 354 (1958).

In Klein, on an indictment charging a § 371 conspiracy to defraud in language virtually identical to that contained in count one here, the court, as a prelude to its discussion of the evidence showing the period that the conspiracy continued, stated that 18 U.S.C. § 3282 was applicable. In Grunewald, on an indictment charging a conspiracy “ ‘to defraud the United States in the exercise of its governmental functions of administering the internal revenue laws’ ” the Court stated that the “first question before us is whether [the § 371 count] was barred by the applicable three-year statute of limitations.8 ” 353 U.S. at 396, 77 S.Ct. at 969. The footnote was to § 3282 (amended in 1954 to provide for the present five-year period).

The government argues that the language in both cases represents not holding, but dicta, since the precise issue here was not contested by the parties. Especially in Grünewald, we do not think that the language was dicta. On the other hand, the language was not part of the main holdings in either case; it was not with respect to any issue which was fully briefed and pressed; and it seems nothing more than mere inadvertence on the part of both courts that the specific language of § 6351, and its predecessors, was overlooked. We, therefore, conclude to follow the specific statutory language, rather than the contrary statements in Grünewald and Klein and hold that the applicable limitation period was six years. The prosecution against Lowder on count one was not barred.

COUNT II

Lowder was convicted on count two of knowingly subscribing to a false income tax return. 26 U.S.C. § 7206(1). The corporate tax return for Hatcheries for the fiscal year ending May 31, 1965, reported taxable income, before net operating loss deduction and special deductions, of $39,815.44. The government charged that the figure was deliberately and substantially understated.

The government offered a computation showing the increased net worth of Hatcheries for that fiscal year in order to establish the substantiality of the understatement. The computation for Hatcheries for that year was derived from a more extensive net worth computation which embraced all six corporations over the 1961-65 four-year period on a calendar year basis. The latter showed a total unreported taxable income in excess of $1.5 million for all corporations over the period, with a resulting estimated unreported tax liability of over $400,000.

From the four-year (calendar-year basis) net worth computation, the government’s expert witness extracted the computation of net worth increases over that period for Hatcheries alone. Since the increases for Hatcheries were still on a calendar-year basis, they were then converted by monthly pro-ration to reflect fiscal year increases as of each May 31st, Hatcheries’ closing date. Thus, for the fiscal year ending May 31, 1965, 7/12ths of the 1964 net worth increase was added to 5/12ths of the 1965 net worth increase to arrive at a 12-month fiscal year net worth increase of $151,372.44. Since Hatcheries’ return reported taxable income of $39,815.44, the computation reflected additional taxable income for the fiscal year ending May 31, 1965, of $111,557.00.

Having examined the exhibits and retraced the computations, we cannot accept Lowder’s claim that this derivation should not have been admissible as proof of understatement. As we understand his brief, his objection amounts to a claim that the government cannot cut through the complexity of the apparent scheme to the substance of corporations’ financial activities. The net worth method was most appropriate in this case where the gross figures appearing on the books and transferred to the tax returns were suspect and the underlying documentation was unavailable. See Johnson v. United States, 325 F.2d 709 (1 Cir. 1963). More specifically, since utilization of the different fiscal year dates was apparently an integral part of the scheme to “roll” income to avoid taxation, we think the government was properly allowed to pierce the surface by its pro-rata derivation. Holland v. United States, 348 U.S. 121, 131, 75 S.Ct. 127, 99 L.Ed. 150 (1954).

Lowder also attacks the conviction on count two on the additional ground of insufficient evidence. That the taxable income was properly shown to have been understated is already settled. Lowder signed the return. As to the requisite criminal intent, the jury may of course infer that from circumstantial evidence. United States v. Barnes, 313 F.2d 325 (6 Cir. 1963). Such a basis existed, to cite but one example, in Lowder’s failure to produce verifying documents for large expense items on Hatcheries’ books for the instant year, at times in 1966 when, according to other testimony, the documents should have been in the corporate offices.

Construing the evidence most favorably for the government, we find it was sufficient to permit the jury to adjudge Lowder guilty beyond a reasonable doubt. Bell v. United States, 185 F.2d 302 (4 Cir. 1950), cert. denied, 340 U.S. 930, 71 S.Ct. 492, 95 L.Ed. 671 (1951). The conviction on count two must therefore stand.

COUNT III

The conviction on count three was also for knowingly filing a false return under 26 U.S.C. § 7206(1). The government charged that, as to Hatcheries’ tax return for the fiscal year ending May 31, 1966, Lowder deliberately failed to report $33,704.28 of taxable income as represented by three checks: (1) two checks from Foods to Hatcheries, dated December 30, 1965, totaling $32,519.28, which amount the government showed was expensed at that time on Foods’ books; (2) one check from Farms to Hatcheries dated November 29, 1965, in the amount of $1,185.00, which amount-was expensed at that time on Farms’ books.

The only objection raised by Lowder is that the evidence -was insufficient. He claims that the government failed to show any actual loss of revenue since, by his version, the Foods cheeks had been mislaid from the dates of making until February, 1967, at which time they were recorded on Hatcheries’ books and computed in the income for that next fiscal year. But what Lowder might have done in subsequent years was irrelevant to whether he filed the return for the instant fiscal year knowing that those checks should have been reported as income to Hatcheries. The jury evidently did not believe his story, and we cannot say that they were unwarranted in so doing. That checks totaling over $33,000 —money which at least could have been earning interest — were mislaid for fourteen months, and turned up after the IRS agent had begun his investigation, was sufficient to support the verdict on the element of intent. Bell v. United States, supra.

Lowder’s miscellaneous assignments of error, which he merely listed without discussion in his brief, have been considered. They do not warrant discussion and are devoid of merit.

For the reasons stated, the convictions on each count are affirmed.

Affirmed.

      . Section 3282 provides :
      Except as otherwise expressly provided by law, no person shall be prosecuted . for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.