author: FIELD, Circuit Judge:

text:
    UNITED STATES of America, Appellant, v. DELUXE CLEANERS AND LAUNDRY, INC., Appellee.
    No. 74-1322.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 4, 1974.
    Decided March 4, 1975.

      Karen K. Siegel, Atty., U. S. Dept, of Justice (Carla A. Hills, Asst. Atty. Gen., New York City, John K. Grisso, U. S. Atty., and Robert E. Kopp, Atty., U. S. Dept, of Justice, on brief), for appellant.
    James E. Hunter, West Columbia, S. C., for appellee.
    Before BUTZNER and FIELD, Circuit Judges, and THOMSEN, District Judge.
   FIELD, Circuit Judge:

The question presented on this appeal is whether an action instituted by the United States pursuant to the Service Contract Act of 1965, 41 U.S.C. § 351 et seq., (hereinafter Service Act) is barred by the two year statute of limitations of the Portal-to-Portal Act of 1947.

The defendant has conducted a laundry and dry cleaning business in the State of South Carolina for many years and in 1964 and 1965 it entered into concessionaire agreements for the provision of services for military personnel at Fort Jackson and Shaw Air Force Base. The contracts which were to expire in 1967 were extended by formal agreements to November 1, 1968, and November 3, 1968, respectively. In performing the work under these contracts, the defendant failed to pay its employees the minimum wage specified under section. 6(a)(1) of the Fair Labor Standards Act, although required to do so by both section 2(b)(1) of the Service Act, and the terms of the agreements. The service employees under the Fort Jackson contract received less than the minimum wage for the period from December 16, 1967, through March 30, 1968, and the employees under the Shaw Air Force contract received less than such wage for the period from October 28, 1967, through March 16, 1968. In October of 1969 administrative proceedings were initiated against the defendant by the Secretary of Labor pursuant to section 4 of the Service Act, and following an administrative hearing, the examiner determined that the defendant had underpaid such employees in the amount of $20,386.13 on the two concessionaire contracts. This decision of the hearing examiner was affirmed by the Administrator on April 28, 1971, and no appeal or application for relief was sought by the defendant. Accordingly, the findings of fact and decision of the hearing examiner became final and conclusive upon all agencies of the United States and, if supported by a preponderance of the evidence, conclusive in any court of the United States.

Unsuccessful in its attempts to secure payment, the United States instituted this action against the defendant on July 31, 1972, pursuant to section 5(b) of the Service Act. In its answer the defendant alleged as an affirmative defense that the action was barred by the statute of limitations of the Portal-to-Portal Act. Thereafter, the United States filed a motion for summary judgment based upon the administrative record, including the findings of fact of the hearing examiner and the decision of the Administrator. The district court granted the Government’s summary motion and entered judgment in its favor, upholding the administrative determination on the merits and specifically rejecting the defendant’s argument that the suit was barred by the provisions of the Portal-to-Portal Act. Shortly thereafter the defendant filed a motion for relief from the judgment pursuant to Rule 60(b), Fed.R.Civ.P., again contending that the two year limitation barred the Government’s enforcement action. Acting on this motion, the court vacated its prior order and judgment, stating that “the Service Contract Act was so connected and interwoven with the Portal-to-Portal Act that the limitation provisions thereof should be applied.” Since the cause of action had accrued more than two years prior to the institution of this suit, the court held that the action was time-barred and entered judgment in favor of the defendant. Thereupon the Government filed this appeal.

Section 6(a) of the Portal-to-Portal Act, 29 U.S.C. § 255(a), upon which the defendant relies, reads in pertinent part as follows:

“Any action commenced on or after May 14, 1947, to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act—
(a) if the cause of action accrues on or after May 14, 1947 — may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued;”

While the Service Act is not specifically mentioned in the foregoing section, the defendant contends that reasonable statutory construction requires that the two year statute specified therein be applied to the present action.

To a large degree this controversy stems from the structure and draftsmanship of the Service Act which, concededly, leaves something to be desired. As heretofore stated, the Service Act incorporates by reference the minimum wage specifications of section 6(a)(1) of the Fair Labor Standards Act, and instead of spelling out the administrative authority of the Secretary, section 4(a) of the Service Act incorporates sections 4 and 5 of the Walsh-Healey Act in the following language:

“(a) Sections 38 and 39 of this title shall govern the Secretary’s authority to enforce this chapter, make rules, regulations, issue orders, hold hearings, and make decisions based upon findings of fact, and take other appropriate action hereunder.”

The defendant argues that by reason of the amalgam of these statutory incorporations the present action was instituted pursuant to section 2 of the Walsh-Healey Act and, accordingly, falls within the specific provisions of the Portal-to-Portal statute of limitations. In support of this argument the defendant seizes upon the prefatory statement in section 4 of the Walsh-Healey Act that “[t]he Secretary of Labor is authorized and directed to administer the provisions of sections 35-45 of this title * * * Defendant contends that this language “expands the incorporation by reference to include the Walsh-Healey Act in toto,” including section 2 which authorizes suits thereunder to be brought in the name of the United States to recover amounts due under the provisions thereof. In our opinion, however, this contention of the defendant places too much of a strain upon the statutory structure. The Service Act incorporates only sections 4 and 5 of the Walsh-Healey Act which govern administrative enforcement of that Act and the conclusion is inescapable that it is the authority of the Secretary administratively to enforce the Service Act which is made subject to the administrative procedures contained in the two incorporated sections of the Walsh-Healey Act. This conclusion is buttressed by the fact that there are substantial differences in the Government’s cause of action under section 2 of Walsh-Healey and section 5 of the Service Act. Additionally, to accept the defendant’s contention on this point would require that we write section 5(b) out of the Service Act, and this we cannot do.

Finally, the defendant urges that the two year limitation should apply since it is illogical to assume that the Congress intended to discriminate between employers covered by the Service Act and those covered by the Fair Labor Standards Act, the Walsh-Healey Act and the Bacon-Davis Act. We, of course, do not know what considerations, if any, influenced the Congress to omit actions under the Service Act from the Portal-to-Portal limitation. In any event, however, “[w]e do not think it permissible to construe a statute on the basis of a mere surmise as to what the Legislature intended and to assume that it was only by inadvertence that it failed to state something other than what it plainly stated.” Vroon v. Templin, 278 F.2d 345, 348-349 (4 Cir. 1960). Since the United States is not bound by any statute of limitation unless Congress explicitly directs otherwise, Guaranty Trust Co. v. United States, 304 U.S. 126, 58 S.Ct. 785, 82 L.Ed. 1224 (1938), the present action was subject only to the general period of limitation of six years prescribed by 28 U.S.C. § 2415.

Accordingly, the judgment of the district court is reversed and the case remanded for consideration of the merits.

Reversed and remanded.

      . 29 U.S.C. § 206(a)(1).

      . 41 U.S.C. § 351(b)(1).

      . 41 U.S.C. § 353.

      . The effect to be accorded the administrative decision is authorized by section 5 of the Walsh-Healey Act, 41 U.S.C. § 39.

      . Section 5(b) reads in pertinent part as follows:
      “If * * * there has been a failure to pay the compensation required pursuant to this chapter, the United States may bring action against the contractor, * * * in any court of competent jurisdiction to recover the remaining amount of under payments.” 41 U.S.C. § 354(b).

      . 29 U.S.C. § 206(a)(1).

      . 41 U.S.C. § 353(a).

      . 41 U.S.C. §§ 38 and 39.

      . 41 U.S.C. § 36.

      . 41 U.S.C. § 38.

      . Brief for appellee, page 13.

      . 41 U.S.C. §§ 38 and 39.


source: Caselaw Access Project

author: MULLIGAN, Circuit Judge:

license: Public Domain

text:
    SENATE REALTY CORPORATION, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 376, Docket 74-1861.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 21, 1975.
    Decided Feb. 20, 1975.

      M. Lauck Walton, New York City (Donovan, Leisure, Newton & Irvine, John C. Baity, New York City, of counsel), for petitioner-appellant.
    Robert G. Burt, Atty., Tax Div., Dept, of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews, Bennet N. Hollander, Attys., Tax Div., Dept, of Justice, Washington, D. C., of counsel), for respondent-appellee.
    Before WATERMAN, HAYS and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

Senate Realty Corporation (Senate), a New York corporation, received a statutory notice of deficiency dated February 15, 1966 from the Commissioner of Internal Revenue (IRS), which asserted deficiencies in the taxpayer’s income taxes for the taxable year 1959 in the amount of $234,825.50 plus a penalty in the sum of $117,412.75. Redetermination proceedings in the Tax Court were commenced by an attorney then representing Senate on March 14, 1966. In November, 1969 Alfred Dallago, then President and principal stockholder of Senate, retained Howard A. Rumpf, an experienced tax lawyer, to represent Senate in the pending Tax Court matter and so advised its prior attorney. On November 13, 1969 Dallago, on behalf of Senate, signed an IRS standard form of power of attorney (Form 2848) which authorized Rumpf to represent the taxpayer before the IRS. On December 8, 1969 Rumpf filed a notice of appearance on behalf of Senate with the Tax Court. During the next three years Rumpf on various occasions conferred with IRS representatives with a view to settling the claim. On April 27, 1972 Dallago died and his estate became the principal shareholder of Senate.

On December 11, 1972 Mr. George Kossoy, a New York attorney representing the Dallago estate, received a letter from Rumpf advising him that the proposed tax deficiency had been reduced “to approximately $100,000 from approximately $265,000” as the result of a conference with IRS, and that the Tax Court “should approve [such a settlement] early in 1973.” On December 15, 1972 Kossoy wrote to Rumpf advising h;m that before any decision could be made on “the settlement which you hope you can make, it would be necessary for the estate and all those concerned with its welfare, to examine all the possible tax claims that may be asserted against the estate generally. I think that if we can somehow get to the point of knowing what the total claim would be that might be asserted against the estate as such, then we can possibly make an offer in compromise.”

On May 7, 1973 Senate, through its attorney Rumpf, and IRS filed a settlement stipulation with the Tax Court which fixed the deficiency in income tax for the taxable year of 1959 at $117,-412.75, plus a penalty of $58,706.38. The decision of the Tax Court pursuant to the. stipulation was entered the same day. On August 20, 1973, two weeks after the decision of the Tax Court became final, IRS gave-notice to Senate demanding payment of the stipulated deficiencies plus interest, in the sum total of $259,906.80. Mrs. Alba Dallago, the widow of the former President of Senate, the sole beneficiary of his estate, and the new President of Senate, advised IRS in writing that the taxpayer objected to the assessment; that it would shortly file a power of attorney for another representative; and that it denied Rumpf was authorized to sign the Stipulation of Settlement, and that he had done so “without the knowledge or consent of the taxpayer.”

On February 22, 1974 Senate filed a motion for special leave to file a motion to vacate the Tax Court’s May 7, 1973 decision on the ground that it was procured by fraud upon the court. On March 18, 1974, after a hearing, the Tax Court denied the motion. This appeal ensued.

I

The narrow question before us is whether the Tax Court abused its discretion in denying Senate’s motion for special leave to vacate a decision which had become final under Internal Revenue Code of 1954 §§ 7481(a)(1), 7483. Rule 162 Rules of Practice and Procedure of the United States Tax Court, provides that a motion to vacate a decision more than 30 days after it was entered, must be by special leave of that court. The May 7, 1973 decision in issue here became final on August 7, 1973, so that the motion for special leave was necessary. Such a motion lies within the sound discretion of the Tax Court and the only ground of review is whether or not that Court abused its discretion in denying the motion. See Lentin v. CIR, 237 F.2d 5, 6 (7th Cir. 1956); Skenandoa Rayon Corp. v. CIR, 122 F.2d 268, 271 (2d Cir.), cert. denied, 314 U.S. 696, 62 S.Ct. 413, 86 L.Ed. 556 (1941). We find no abuse and affirm the order of the Tax Court.

The fraud claimed here is that Rumpf, as an “officer of the court,” after being expressly directed by attorney Kossoy not to settle the claims herein, nevertheless executed an unauthorized stipulation terminating the suit brought by Senate.

Rumpf as an attorney is an officer of the court and here was not authorized to settle the claim even though he was authorized to appear in the Tax Court. However the critical question is whether this is sufficient to constitute a fraud upon the court.

Professor Moore’s definition is instructive;

“Fraud upon the court” should, we believe, embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases.

7 J. Moore, Federal Practice H 60.33, at 515 (2d ed. 1974). This formulation of the concept of fraud upon the court has been expressly adopted by this circuit in Kupferman v. Consolidated Research and Mfg. Corp., 459 F.2d 1072, 1078 (2d Cir. 1972), and Martina Theatre Corp. v. Schine Chain Theatres, Inc., 278 F.2d 798, 801 (2d Cir. 1960). While Senate claims that the settlement was unauthorized, there is no indication or claim that Rumpf made any misrepresentation of the facts in issue, that he had any improper motive, that IRS in any way cooperated with him in deceiving or defiling the court, or even indeed that the compromise itself was unreasonable. Chief Justice Marshall in Holker v. Parker, 11 U.S. (7 Cranch) 436, 452, 3 L.Ed. 396 (1813) made the distinction a long time ago:

Although an attorney-at-law, merely as such, has, strictly speaking, no right to make a compromise; yet a court would be disinclined to disturb one which was not so unreasonable in itself as to be exclaimed against by all, and to create an impression that the judgment of the attorney has been imposed on, or not fairly exercised in the case.

Here Rumpf had been retained because of his tax experience and he did succeed in reducing a proposed deficiency of about $352,000 (including penalties) to $176,000 (including penalties). The letter he received from Kossoy was not from the taxpayer Senate but from counsel to the estate of Dallago who did not wish to compromise until the total IRS claim against the estate was asserted. Rumpf was authorized by Senate to appear before IRS and to appear in the Tax Court; that authority was never revoked until February 22, 1974, six months after the Tax Court decision had become final, when new counsel was appointed. Thus, although Rumpf was unauthorized to settle, we cannot agree with appellant that his disregard of Kossoy’s advice constituted a fraud upon the court. Whatever liability, if any, Rumpf may have as to Senate or the estate is not the question before us. The point is that vis-a-vis the Tax Court there was • no conduct on the part of Rumpf which compromised the merits of the negotiated settlement or which precluded the court from adjudging the matter impartially.

The only decided cases which are relevant to the issue raised on appeal, are of no assistance to appellant. In Flood v. CIR, 468 F.2d 904 (9th Cir. 1972), cert. denied, 411 U.S. 906, 93 S.Ct. 1529, 36 L.Ed.2d 195 (1973), a claim was made that counsel who had been given a general power of attorney settled a tax claim without authority and knowing that his clients did not owe the largest part of the taxes involved. The court held that the Tax Court did not abuse its discretion by denying a motion for special leave to file a motion to vacate. In Toscano v. CIR, 441 F.2d 930 (9th Cir. 1971), the court did remand for an evidentiary hearing on the question of fraud, but it was alleged there (inter alia) that the taxpayer’s signature had been forged on a joint return. We note here that there was a hearing before the Tax Court on the motion with Senate submitting a memorandum, affidavits and exhibits. And in United States v. Kenner, 455 F.2d 1, 4-5 (7th Cir. 1972), the Court rejected appellant’s contention that fraud occurred because his attorneys, in agreeing to a consent order, acted without authority:

In view of the situation as shown, we hold that appellant’s attorneys at least had implied authority to consent to the order [citation omitted]. This implication plainly arises from the fact that appellant without raising any question as to their authority retained them as counsel for fifteen months and further raised no question as to their authority until three years after the order was entered

Id. at 5.

We have not been cited to nor have we discovered any case where a court has found the mere settlement of a suit by counsel without authorization to constitute a fraud upon the court which would support a setting aside of a final judgment of the court. The narrow definition of such fraud which has found acceptance in this court generally reflects the policy of putting an end to litigation. See Restatement of Judgments § 1 (1942). We see no good reason here to disturb the decision of the Tax Court. There is no showing of the evil intent, deceit or collusion which have marked those cases where final verdicts have been set aside. Rumpf had worked for three years to obtain a settlement and there is no showing that he took any advantage of his client in settling the dispute. He simply did not follow the instructions of counsel for the estate of the principal stockholder of his client who for reasons of strategy wished to defer settlement. There is no proof or claim that Rumpf was even wrong much less malicious in taking the action he did. In our view that conduct, however else it may be characterized, does not and should not fall within the accepted definition of fraud upon the court.

Affirmed.

      . We do not accept the position of IRS that neither the Tax Court nor any other court has jurisdiction to reconsider a final decision of the Tax Court. Although, for example, Jefferson Loan Co. v. CIR, 249 F.2d 364 (8th Cir. 1957) did hold that the Tax Court has limited statutory jurisdiction and could not vacate its own decision after it became final, that position has been rejected in other circuits at least where there is a claim of fraud upon the court. E. g., Toscano v. CIR, 441 F.2d 930, 932-33 (9th Cir. 1971); Kenner v. CIR, 387 F.2d 689, 691 (7th Cir.), cert. denied 393 U.S. 841, 89 S.Ct. 121, 21 L.Ed.2d 112 (1968); Stickler v. CIR, 464 F.2d 368, 370 (3d Cir. 1972); Pasternack v. CIR, 155 U.S.App.D.C. 384, 478 F.2d 588, 593 (1973) (dictum).

      . E. g., Theard v. United States, 354 U.S. 278, 281, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957) (attorney is an officer of the court); Ricketts v. Pennsylvania R.R., 153 F.2d 757, 759-60 (2d Cir. 1946) (L. Hand, J.) (attorney has no implied authority to compromise a claim); ABA Code of Professional Responsibility, EC 7-7 (client must make decision whether to accept a settlement offer).

      . Cf. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944), where fraud upon the court was found because a bogus scientific article, written to affect the outcome of a patent litigation, in fact influenced, at least in part, the decision of the court of appeals. This is a clear-cut example of “defiling” the court and precluding it from attaining impartial decision-making, in contrast to the situation we have at bar.


author: PER CURIAM. WIDENER, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Paul Everett SHAVER, Appellant.
    No. 74-1434.
    United States Court of Appeals, Fourth Circuit.
    Argued Jan. 9, 1975.
    Decided Feb. 10, 1975.

      Keith S. Snyder, U. S. Atty., on brief for appellee.
    Clarence N. Gilbert, Asheville, N. C., on brief for appellant.
    Before RUSSELL, FIELD and WIDENER, Circuit Judges.
   PER CURIAM.

On December 13, 1973, a lone gunman approximately six feet in height and weighing about 200 pounds robbed the West Office of Wachovia Bank and Trust Company, Morganton, North Carolina of approximately $6,000. Paul Everett Shaver, the appellant, was tried and convicted upon a bill of indictment charging violation of Title 18, U.S.C., Sections 2113(a), 2113(b), and 2113(d). The district court merged counts one and two into count three and sentenced the appellant to a term of fifteen years of confinement. On direct appeal, counsel for petitioner raises the four following points for error:

(1) Did the trial court err in failing to instruct the jury to ignore the remarks of the district attorney addressed to appellant about another bank robbery?
(2) Did the trial court err in stating the contentions of appellant with particular reference to the exchange of automobiles with James P. Lipford?
(3) Did the trial court err in failing to include a detailed and complete charge on the law of circumstantial evidence in failing to charge that the government’s evidence did not positively identify appellant as the bank robber and in failing to charge that the government’s evidence on identification was circumstantial?
(4) Did the trial court err in denying appellant’s motion to set aside the verdict of the jury?

We reject as meritless petitioner’s contention that the trial court erred in failing to instruct the jury to disregard the government’s efforts to impeach the accused’s credibility through questions relating to a prior conviction pending appeal. United States v. Soles, 482 F.2d 105 (2d Cir. 1973); United States v. Williams, 484 F.2d 428 (8th Cir. 1973); United States v. Empire Packing Co., 174 F.2d 16 (7th Cir. 1949), cert. denied 337 U.S. 959, 69 S.Ct. 1534, 93 L.Ed. 1758 (1949). See, also, Rule 609(e), Rules of Evidence for the United States District Courts and Magistrates. In any event, the overwhelming evidence of petitioner’s guilt convinces us that the failure to so instruct the jury, if error at all, is harmless beyond a reasonable doubt. United States v. Green, 432 F.2d 551 (4th Cir. 1970).

With respect to the district judge’s inadvertent misstatement regarding the exact location at which the defendant contended he had gotten into the get-away car, we agree with government counsel that the error was harmless, particularly in view of the fact that the trial judge gave curative instructions reminding the jury that they were the sole triers of fact; that defense counsel made no objection to the charge; and that the charge read in its totality made abundantly clear the accused’s position that he had nothing whatsoever to do with the robbery. United States v. Graydon, 429 F.2d 120 (4th Cir. 1970); Rule 52(b), Fed.R.Crim.P.

Likewise without merit is petitioner’s claim that the trial court’s failure to include a detailed and complete charge on the law of circumstantial evidence. The defense made no objections to the charge and no requests for additional instructions were made as required by Rule 30, Fed.R.Crim.P. (App. B., T. 235). Furthermore, the charge adequately stated this court’s rule that circumstantial evidence may support a verdict of guilty even though it does not exclude every reasonable hypothesis consistent with innocence. (App. B., T. 213, 216), United States v. Chappell, 353 F.2d 83 (4th Cir. 1965).

Finally, the appellant argues that the trial judge should have granted appellant’s motion to set the jury verdict aside on the basis that three of the jurors saw the accused in handcuffs during the trial and at a noon recess. The trial judge thoroughly questioned the three jurors and correctly determined that there was no prejudice. The “brief sighting” of an accused in handcuffs is not per se prejudicial.

Accordingly, after careful consideration of the record and briefs filed by counsel, we affirm the judgment of the district court.

Affirmed.

WIDENER, Circuit Judge

(concurring):

I concur in the opinion of the court except as to point (1) respecting the question concerning a previous conviction for which an appeal was pending, and as to that I concur in the result. I would not reach the merits.

The district judge properly sustained an objection to a question as to a previous conviction for which an appeal was pending. No motion for mistrial was made and no request was made to the district judge to charge the jury that the question was ' improper. The question was never answered. This is a matter of trial tactics and could just as well have been for the purpose of not drawing the jury’s attention to the matter again, as it probably was, as for any other reason. We are advised by the United States Attorney on oral argument that it is not customary in that district, as it is in some, to charge the jury that any evidence as to which an objection was sustained must be entirely disregarded.

As to the merits, United States v. Potts, 420 F.2d 964 (4th Cir. 1970), assuming for argument it is not directly in point, is a strong indication that the rule in this circuit is that such a question is improper. There, the district court charged the jury to disregard the matter. 16 A.L.R.3d 726 contains an annotation giving a breakdown of various courts on the point at hand.

Rule 609(e) of the Federal Rules of Evidence, I submit, does not affect proceedings like those before us brought before 180 days after January 2, 1975, P.L. 93-595, 93d Congress, 43 L.W. 137.

      . This sentence was to begin at the expiration of a sentence imposed in the United States District Court in Columbia, South Carolina in the fall of 1973 for bank robbery.


author: LUMBARD, Circuit Judge:

text:
    Nick LJEPAVA and Chris Ljepava, Jr., Plaintiffs and Appellants, v. M. L. S. C. PROPERTIES, INC., et al., Defendants and Appellees.
    Nos. 73-1707, 73-1756.
    United States Court of Appeals, Ninth Circuit.
    Feb. 12, 1975.

      James W. Funsten (argued), San Francisco, Cal., for plaintiffs and appellants.
    Sanford N. Diller (argued), Cupertino, Cal., for defendants and appellees.

       United States Court of Appeals for the Second Circuit, sitting by designation.

   OPINION

Before LUMBARD, KOELSCH and DUNIWAY, Circuit Judges. -

LUMBARD, Circuit Judge:

Plaintiffs appeal from an order of the Northern District of California, entered by Judge Charles E. Wyzanski, Jr., sitting by designation, which denied them most of the relief that they had sought under the Truth in Lending Act, 15 U.S.C. § 1601 et seq., and Regulation Z issued thereunder. 12 C.F.R. part 226 (1974). We reverse and remand.

The plaintiffs are two brothers, Nick and Chris Ljepava, who lived in Saratoga, California, in a five-room house on a fifteen-acre prune farm which they had inherited from their parents. The Ljepavas had lived on the land since 1923. In addition to raising prunes on their own property, the brothers, who had only eighth-grade educations, did piece work of an agricultural nature for surrounding farmers. The Ljepava farm was located in an area of new residential development, and there were potentially fourteen building lots on the tract. The trial judge found that since 1970 the property had had a market value of $225,000. Immediately prior to the arrangement of the mortgage loan which is the subject of this suit, there were two encumbrances on the land: a first deed of trust in favor of Ira and Antonie Brotzman in the amount of $92,771.29 and a second deed of trust in favor of Henry L. and Nadine B. Ethier in an original amount of $18,000. On April 18, 1972, a notice of default was recorded by Mrs. Ruth C. Armes, the assignee of the Ethier deed of trust.

Since their equity in the land of some $100,000 was jeopardized by the possibility of a foreclosure sale pursuant to the notice of default, the Ljepavas sought to refinance the second deed of trust. It appears from the evidence and the trial judge’s findings that the Ljepavas were afraid that Mrs. Armes was out to take their land from them in some nefarious way.

Prior to the filing of the notice of default, the Ljepavas had been contacted by Norman S. Lopes, an agent of Paul O. Paulson, a mortgage loan broker doing business as the Paulson Mortgage Company. Paulson tentatively arranged a $30,000 loan for the Ljepavas in early April 1972, but at the last minute the Ljepavas decided not to go through with the deal. In early May the Paulson organization began arranging a new loan to pay off the second deed of trust. On May 9, Lopes told the Ljepavas that he was having serious difficulties and that it would be necessary for another mortgage loan broker, HLC Financial, a subsidiary of M.L.S.C. Properties, Inc., to be brought into the transaction. The trial judge found, and we agree, that while Lopes told the Ljepavas that an increased commission would be required, he did not indicate the amount of that commission.

On May 11, the deal was closed. The disclosure statement required by the Truth in Lending Act and the Federal Reserve Board’s Regulation Z that was presented to the Ljepavas indicated that the face amount of the promissory note was $36,000. Of that amount $24,480 was paid to Mrs. Armes or to or on behalf of the Ljepavas. The statement indicated that a commission of $5,400 was to be paid to Paulson Mortgage Company and a commission of $6,120 was to be paid to HLC Financial. The Loan was for one year at 10% interest, which amounted to $3,600. A sum of $200 was payable in addition to the interest which the statement included in the total interest charge. Thus the total finance charge was $15,320 — the sum of the commissions, the 10% interest, and the extra payment of $200. The disclosure statement showed that the annual percentage rate charged for the loan was 43%. That number was obtained by comparing the finance charge for the one-year loan — $15,320 — to the face amount of the note — $36,000. In addition, the statement indicated that if the loan was paid off before maturity, all unaccrued interest would be cancelled, but that there would be a “pre-payment charge” of twelve months’ unearned interest.

The disclosure statement did not indicate that there were actually ten promissory notes involved — not one. The obligees of the notes and their respective amounts were as follows: Donald E. and Louise Slusher, $3,500; Robert A. Lewis, $4,000; Collier N. and Theresa V. Gallucci, $2,500; John P. and Roberta E. Briano, $1,500; Mrs. Roy M. Austin, $10,-000; George M. Boyd, $1,000; Murray M. and Anne D. Montgomery, $2,000; Charles P. R. and Lois C. Short, $5,000; Irma Smith Van Riesen, $5,000; Vera T. Lynly, $1,500. There was only one deed of trust in which M.L.S.C. Properties, Inc., was named the trustee for the benefit of the promisees.

In addition to signing the ten notes, the deed of trust, and the disclosure statement, both brothers signed a statement waiving their right to rescind the transaction. The statement was written by Chris Ljepava as dictated to him by Lopes. The statement said: “5/11/72 In order to expedite this loan we wish to waive our three day right of rescission as our property is in default and we are close to foreclosure.”

At trial Nick Ljepava indicated that he did not understand all of the loan’s terms and that the brothers expected to get about $5,000 in cash instead of the $1,000 they actually received.

After the Ljepavas failed to make the payments required by the notes, M.L.S.C. Properties, Inc., recorded a notice of default and proposed to sell the property at a foreclosure sale on November 15, 1972. In order to prevent this sale, the Ljepavas filed this suit in the district court on November 2, 1972. Their complaint asked for an injunction restraining M.L.S.C. Properties, Inc., from selling the land at a foreclosure sale, for rescission of the transaction, and for the civil penalties and attorneys’ fees provided by the Truth in Lending Act. The district court issued a preliminary injunction, and a trial was held on January 15 and 16, 1973.

On the basis of the facts outlined above, the trial judge found that the Truth in Lending Act had been violated in that the disclosure statement failed to comply with section 129(a)(2) of the Act, 15 U.S.C. § 1639(a)(2), because HLC Financial’s role in the transaction was not explained. The trial court granted judgments of $1,000 in favor of the Ljepavas against each of defendants Lopes and Paulson, and jointly against HLC Financial, M.L.S.C. Properties, Inc., and Mortgage Loan Servicing Corporation, and awarded the Ljepavas attorneys’ fees of $3,000 against the same defendants, Ljepya [sic] v. M.L.S.C. Properties, 353 F.Supp. 866 (N.D.Calif.1973). In addition, the district judge held that plaintiffs could rescind the loan contract if plaintiffs tendered to defendants, within ten days, an amount equal to the proceeds of the loan disbursed to them or for their account ($24,480) plus the amounts subsequently advanced by defendants to the holders of the first deed of trust ($8,681.49). Id.

At the expiration of the ten-day period provided in the court’s order, the defendants moved to dissolve the preliminary injunction against holding a foreclosure sale on the ground that the plaintiffs had failed to avail themselves of the court’s rescission order. At a hearing on the motion, the judge insisted on a yes or no answer to the question of whether a tender had been made — a question plaintiff’s counsel found difficult to answer. Although the trial judge scarcely allowed the Ljepavas’ counsel to get a word in edgewise, it appears that counsel was attempting to argue that defendants’ failure to cooperate had frustrated plaintiffs’ attempts to arrange a tender.

While there is no evidence in the record concerning events subsequent to the trial, it appears that within the ten-day period in question the Ljepavas had finalized arrangements to sell their property to Anthony Cansano for $180,000 and that an escrow account had been set up to facilitate the sale. It appears that defendants refused to agree to release their mortgage subject to the subsequent payment to them of $33,161.49 from the escrow account. Instead they apparently maintained that the rescission order permitted them to insist upon payment pri- or to their release of the mortgage. The trial judge, concluding that plaintiffs had failed to tender in accordance with his rescission order, dissolved the injunction and cancelled the award of attorneys’ fees. It is from this action that plaintiffs appeal.

Within three weeks after the post-trial hearing, it appears that the Ljepavas successfully completed the sale of their property for $180,000, and paid the defendants $67,356.62 so that they would release their deed of trust. Of the amount paid defendants, $33,161.49 represented the amount which would have been payable under the court’s order; the remainder covered, inter alia, the commissions to HLC Financial and Paul-son Mortgage of $11,520.00, a prepayment penalty of one year’s interest ($3,600.00), and attorneys’ fees of $10,-000.

The Ljepavas contend that the trial judge’s view of the rescission remedy provided by the Truth in Lending Act was too restrictive in that they should not have been required to tender $33,-161.49 before defendants were under an obligation to release their mortgage. In light of events since trial, the Ljepavas maintain that they should be allowed to recover all of the monies they paid to defendants in excess of $33,161.49. In addition, they claim that the trial judge did not have the power to and should not have revoked his initial award of attorneys’ fees and that the trial court should have awarded them damages under the civil penalties provision of the Act against the individual promissees of the ten notes.

Adequacy of the Disclosure Statement

The Truth in Lending Act provides a damage remedy and a right to rescind a loan agreement to the borrower when the lender’s disclosure statement is statutorily inadequate. Truth in Lending Act §§ 125(a), 130; 15 U.S.C. §§ 1635(a), 1640(a). The disclosure statement that was presented to the Ljepavas is set forth in the Appendix.

The district court found that disclosure statement inadequate because it did not explain how HLC Financial was involved in the transaction. Specifically, the court felt that the statement failed to comply with section 129(a)(2) of the Act, 15 U.S.C. § 1639(a)(2), which requires that charges “which are included in the amount of credit extended but which are not part of the finance charge” must be “individually itemized.” The trial judge obviously erred in this conclusion since the payment to HLC Financial was part of the finance charge. Hence, section 129(a)(2) does not apply here. However, our examination of the disclosure statement convinces us that the statement is inadequate for several other reasons.

First, the disclosure statement understates the annual percentage rate of the finance charge by almost one half. The disclosed rate was apparently calculated by dividing the face value of the note (which included most of the finance charge) into the finance charge. Proper calculation requires that the amount financed (which does not include any part of the finance charge) be divided into the finance charge. This computation yields an annual percentage rate of 62.5%.

The defendants do not attempt to justify their method of calculation in their brief except to assert that such interest rate calculations are very complex. We do not agree. Since this is a one-year note with no principal payments due until the entire note is payable, the annual interest rate is easily calculable. It is necessary only to divide the amount financed into the finance charge.

The method of calculation that we adopt here is supported by the Federal Reserve Board which is the agency charged with administering the Act. In a somewhat analogous situation, it wrote:

Section 129(a)(1) of the Act makes it clear that the amount financed is intended to be the net amount of credit which the customer will have the actual use of. In the case in which he receives $1,000 but pays back $100 in prepaid finance charges, he has actual use of $900 and this would be the amount financed. Consequently, in those cases in which prepaid finance charges are paid in cash they should be deducted from the amount of the loan in order to determine the amount financed for purposes of disclosure and computing the annual percentage rate.

Federal Reserve Board Public Position Letter No. 61, August 8, 1969, in 2 R. Clontz, Jr., Truth-in-Lending Manual E-127 (3rd ed. 1973). See also Federal Reserve Board Public Position Letter No. 108, September 9, 1969, in id. at El — 142; Federal Reserve Board Public Position Letter No. 363, June 17, 1970, in id. at El — 240. See generally A. Arnold, Truth-in-Lending and Fair Credit Reporting Forms Guide 226-30, 400 (1972); 1 R. Clontz, Jr., Truth-in-Lending Manual chap. 5 (3rd ed. 1973). While expressions of the Federal Reserve Board are not binding upon us, they should be treated as persuasive authority. Eby v. Reb Realty, Inc., 495 F.2d 646, 649-50 (9th Cir. 1974); Bissette v. Colonial Mortgage Co. of D. C., 155 U.S.App.D.C. 360, 477 F.2d 1245, 1246 (1973). In this instance the Board’s position seems clearly correct. The statute provides that the annual percentage rate is “that nominal annual percentage rate which will yield a sum equal to the amount of the finance charge when it is applied to the unpaid balances of the amount financed.” Truth in Lending Act § 107(a)(1)(A), 15 U.S.C. § 1606(a)(1)(A). In this case the amount financed was $24,480 and no part of it was to be paid until the end of the year. Sixty-two and one-half per cent of that amount is approximately $15,320, which was the amount of the finance charge. The disclosure statement given to the Ljepavas was inadequate because it grossly understated the annual percentage rate of the finance charge.

Second, the disclosure statement did not explain how charges for late payments were to be calculated as is required by section 129(a)(7) of the Act, 15 U.S.C. § 1639(a)(7), and Regulation Z, 12 C.F.R. § 226.8(b)(4) (1974). The statement simply says “Refer to note.” This is inadequate.

Defendants claim that such a reference to a second document is permitted by section 129(b) of the Act which provides that “the disclosures required by subsection (a) of this section may be made by disclosing the information in the note or other evidence of indebtedness to be signed by the obligor.” 15 U.S.C. § 1639(b). We think that this provision means that the required disclosures can be made by including all required information in the instrument of indebtedness, not that some of the information can be disclosed in the disclosure statement while other information is disclosed in another document. The whole purpose of the Truth in Lending Act is to provide meaningful disclosure to a borrower. Such a goal is not met if the borrower must examine several documents to learn the terms of the loan agreement.

This conclusion is supported by the regulations issued by the Federal Reserve Board which state:

At the time disclosures are made, the creditor shall furnish the customer with a duplicate of the instrument or a statement by which the required disclosures are made and on which the creditor is identified. All of the disclosures shall be made together on either (1) The note or other instrument evidencing the obligation on the same side of the page and above or adjacent to the place for the customer’s signature; or (2) One side of a separate statement which identifies the transaction.

12 C.F.R. § 226.8(a) (1974). See also 12 C.F.R. § 226.801 (1974).

Even if disclosure in separate documents was permissible, we would still find this disclosure inadequate. First, it fails to specify where the relevant information can be found in the promissory note. Second, in the phrase “Refer to note,” the meaning of the word “note” is ambiguous — it could refer to a footnote or a promissory note. When the latter is referred to elsewhere in the disclosure statement, the word “Note” is used. Moreover, as previously indicated, and as we shall discuss further below, there were ten promissory notes involved here, and the meaning of a reference to a singular “note” is far from clear. In light of all these considerations we find that the disclosure statement failed adequately to explain the method of calculating late charges.

Third, the disclosure statement fails adequately to explain each element of the finance charge as is required by Regulation Z. 12 C.F.R. §§ 226.6(d), 226.8(d)(3) (1974). This failure was noted by the trial judge, although as we indicated above, he applied the wrong statutory provision. HLC Financial is not identified in any way in the disclosure statement, nor is it mentioned in the deed of trust or the notes that the Ljepavas signed. Moreover, the Ljepavas apparently had no direct dealings with HLC Financial so that disclosure was particularly necessary. The bare reference to HLC Financial fails adequately to explain what role it played in the transaction. The omission to give such an explanation is especially significant here since HLC Financial represented only the lenders who had interests adverse to those of the Ljepavas.

Finally, the Ljepavas argue that the disclosure statement was inadequate because it was given to them at the same time that the transaction was completed. They note that the purpose of the Truth in Lending Act was “to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him . . . Truth in Lending Act § 102, 15 U.S.C. § 1601. They argue that shopping for credit requires that the disclosure statement be provided sufficiently in advance so that a borrower would have the opportunity to go to another lender to see if he could obtain better terms. While we find that this argument is logically persuasive, it has been rejected by virtually every court that has considered it. Bissette v. Colonial Mortgage Co. of D. C., supra, revg. 340 F.Supp. 1191 (D.D.C.1972); Foster v. Maryland State Savings and Loan Ass’n, 369 F.Supp. 843 (D.D.C. 1974); Stavrides v. Mellon Natl. Bank & Trust Co., 353 F.Supp. 1072, 1078-79 (W.D.Pa.), aff’d on other grounds, 487 F.2d 953 (3d Cir. 1973); cl Stevens v. Rock Springs Natl. Bank, 497 F.2d 307, 310 (10th Cir. 1974). We need not decide this question, however, because the disclosure statement in this case is clearly inadequate for the other reasons discussed above.

Waiver of Rescission

Defendants argue that even if the disclosure statement was inadequate, the Ljepavas waived their right to rescind. The Truth in Lending Act authorizes the Federal Reserve Board to “prescribe regulations authorizing the modification or waiver of [the right of rescission]” “to permit homeowners to meet bona fide personal financial emergencies.” Truth in Lending Act § 125(d), 15 U.S.C. § 1635(d). The Board has issued such regulations:

A customer may modify or waive his right to rescind a transaction subject to the provisions of this section provided:
(1) The extension of credit is needed in order to meet a bona fide immediate personal financial emergency of the customer;
(2) The customer has determined that a delay of 3 business days in performance of the creditor’s obligation under the transaction will jeopardize the welfare, health, or safety of natural persons or endanger property which the customer owns or for which he is responsible; and
(3) The customer furnishes the creditor with a separate dated and signed personal statement describing the situation requiring immediate remedy and modifying or waiving his right of rescission. The use of printed forms for this purpose is prohibited.

12 C.F.R. § 226.9(e) (1974).

Both the statute and the regulation require the existence of a “bona fide” emergency. The reason given in the Ljepavas’ waiver statement was that they needed the money because they were “close to foreclosure.” Since foreclosure under the Armes mortgage, which was the one in default, was not possible for more than two months, it is clear that in reality the Ljepavas faced no “bona fide immediate personal financial emergency” as would be required by the regulation.

The regulations clearly require that a real financial emergency exists. Hence, to be safe a lender should inquire into any claimed emergency before he accepts a waiver. While there may be cases where it may be unfair to hold a lender to knowledge of the borrower’s financial condition, we have no hesitation in holding that here the waiver was ineffective because the lenders knew from a title check that they had ordered on the property that no foreclosure was imminent. The purported waiver of their right of rescission by the Ljepavas was ineffective since they faced no bona fide personal financial emergency.

Was Rescission Timely?

The statute provides that a borrower can rescind a transaction “until midnight of the third business day following the consummation of the transaction or the delivery of the disclosures required . . . whichever is later, by notifying the creditor.” Truth in Lending Act § 125(a), 15 U.S.C. § 1635(a). The inadequacies in the disclosure statement discussed above were never corrected. Thus, the Ljepavas have always had a right to rescind the transaction and they notified the creditors of their intent to do so prior to trial. See Sosa v. Fite, 498 F.2d 114, 117-18 (5th Cir. 1974).

Mechanics of Rescission

Since we have concluded that the Ljepavas had a right to rescind the transaction, it is necessary to determine whether the trial court was unduly restrictive in its rescission order and thus frustrated the purposes of the Act. The procedure to be followed in rescission cases is outlined in the statute and has been interpreted recently by this court. The statute provides:

When a [borrower] exercises his right to rescind, . . he is not liable for any finance or other charge, and any security interest given by the [borrower] becomes void upon such a rescission. Within ten days after receipt of a notice of rescission, the creditor shall return to the [borrower] any money or property . . . and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction. If the creditor has delivered any property to the [borrower], the [borrower] may retain possession of it. Upon performance of the creditor’s obligations under this section, the [borrower] shall tender the property to the creditor .

Truth in Lending Act § 125(b), 15 U.S.C. § 1635(b). The plain language of the statute seems to ' suggest that the defendants should have been required to remove their lien prior to tender by the Ljepavas. See Palmer v. Wilson, 502 F.2d 860, 863-64 (9th Cir. 1974) (Wright, J., dissenting); Sosa v. Fite, supra, 498 F.2d at 118-19.

However, we have recently indicated that the statute should not be read as requiring the lender to perform first. In Palmer v. Wilson, supra, the majority held that a trial judge had the discretion to condition rescission on tender by the borrower of the property he had received from the lender.

In this case we think that reversal is appropriate. Here the district court apparently felt that it had no discretion and that tender was a mandatory requirement for rescission. This view is inconsistent with the statute and our decision. There were such egregious violations of the Truth in Lending Act here that the district court should have provided a more liberal remedy for the Ljepavas. Under the Act a court should be concerned that defendants ultimately receive the money they advance under a loan agreement, but it must be careful that such concern does not provide lenders with a method of frustrating the main purpose of the Act, which is to allow rescission. The least the court should have done when it appeared that there was a factual dispute over whether tender had been made within the ten-day limit it had imposed was to hold a hearing to determine what actually had happened.

It appears that the Ljepavas did sell their land within three weeks after the hearing on January 30, 1974, and that they paid defendants not only the amounts originally financed and the amounts subsequently advanced by defendants to the holders of the first deed of trust, but an additional $34,195.13. If it is determined on remand that the defendants did receive those amounts, the Ljepavas are entitled to rescission under the Truth in Lending Act. They should be awarded any amounts that they paid to defendants in excess of $33,161.49 (the amount of the advances and the original loan).

Civil Penalties

In addition to providing terms for rescission, the trial court awarded the Ljepavas $3,000 under section 130(a) of the Truth in Lending Act. 15 U.S.C. § 1640(a). That part of the judgment still stands and neither party objects to it. We have previously held that the Act clearly authorizes both rescission and award of civil penalties in the same case. Eby v. Reb Realty, Inc., 495 F.2d 646 (9th Cir. 1974).

However, the trial court assessed civil penalties only against the three mortgage brokers — Lopes, Paulson, and HLC Financial. The Ljepavas claim that penalties should have been assessed against the promisees of the ten notes. Their contention is correct if the promisees were “creditors” under the Act. The statute limits the term creditor to include only “creditors who regularly extend, or arrange for the extension of, credit for which the payment of a finance charge is required.” Truth in Lending Act § 103(f), 15 U.S.C. § 1602(f).

Whether the promisees in this case are creditors is a factual question as to which this record contains no evidence, Sarter v. Mays, 491 F.2d 675, 676 (5th Cir. 1974), which should be determined by the district court on remand. It is possible that some or all of the promisees lent money on a regular basis. See generally Eby v. Reb Realty, Inc., supra, 495 F.2d at 648-50.

Attorney’s Fees

Section 130(a) also provides for “a reasonable attorney’s fees as determined by the court” in successful actions to enforce civil penalties. 15 U.S.C. § 1640(a)(2). The trial court originally awarded plaintiffs $3,000 in attorneys’ fees. The trial court later cancelled this award, apparently as a result of a misunderstanding between himself and plaintiffs’ counsel. See note 5, supra., We feel that this misunderstanding was unfortunate and was based in part on the trial court’s misinterpretation of the statute. Since we feel that attorneys’ fees are appropriate in this ease, the trial court on remand should award an attorneys’ fee based on counsel’s work in the original proceeding, on appeal, and on remand.

Reversed and remanded for further proceedings consistent with this opinion.

See Appendix on next page.

      . This fear was somewhat irrational since Mrs. Armes’s husband was the mortgage loan broker who had originally arranged the Ljepavas-Ethiers mortgage and had only agreed to take the mortgage off the Ethiers’ hands^ when the Ljepavas became delinquent.

      . A mortgage loan broker brings together landowners in need of money and individual investors who are interested in making mortgage loans. The broker arranges a deal between the landowner and any number of lenders. Expert testimony at trial indicated that for his work a broker normally receives a commission. The commission on the Ethier mortgage was ten per cent.

      . The disclosure statement is reproduced as an appendix to the opinion.

      . The Ljepavas received $1,092.31 in cash.

      . “The Court: Now I am only going to put one question which I want answered briefly. I am asking counsel for the plaintiff whether or not the plaintiff, within the ten days after January 15, 1973, did make tender, or whether they did not. Did they make tender, yes or no?
      “Mr. Funsten: “I can’t answer yes or no.
      “The Court: Then you will be held to have said no. Sit down, and you will be held in contempt if you again evade the question of The Court. Did they make tender, yes or no?
      “Mr. Funsten: Well, I will explain what I mean by my answer, Judge—
      “The Court: Yes or no?
      “Mr. Funsten: I would say—

        “The Court: Yes or no? Don’t trifle with This Court.
      “Mr. Funsten: I don’t mean to trifle with The Court, Your Honor—
      “The Court: You are being held, and I intend to hold you personally. Yes or no?
      Mr. Funsten: I would say it’s then frustrated—
      “The Court: Yes or no? Do you want to go to jail?
      “Mr. Funsten: I would say tender—
      “The Court: Yes or no?
      Mr. Funsten: I would say—
      “The Court: Yes or no? Now I will put it once more—
      “Mr. Funsten: No, because of the impossibility. That’s the only way to answer it, Your Honor, most respectfully, because they made, they asked for a demand and no demand was given to them, and there is $180,000.00 in escrow, as I understand it, from the title officer and I have a letter.
      “The Court: I am going to rescind that part of my order which has to do with allowance of counsel fees.
      “Mr. Diller: Your Honor, I have evidence to produce under oath that there is absolutely no tender made as intended by The Court, and I would like to call Mr.—
      “The Court: Quite unnecessary to do it. You may make application for rescission of that part of the judgment which had to do with the allowance of counsel fees on the grounds that counsel, by conduct, consequently showed that he was not entitled to pay for his services, he being in obvious contempt of The Court and obviously evasive.”

      . When the motion hearing commenced, there were no written papers filed with the court concerning the events since trial. Defendants later filed typed motion papers which asserted that no tender had been made. Counsel for the Ljepavas submitted a five-page handwritten statement which is not now in the record. No testimony was taken.

      . 12 C.F.R. § 226.6(d) (1974) requires that “[i]f there is more than one creditor in a transaction, each creditor shall be clearly identified . . ..” 12 C.F.R. § 226.8(d)(3) (1974) states: “ [T]he following items shall be disclosed: . . . (3) . . . the total amount of the finance charge, with a description of each amount included .

      . There are also other ways in which the disclosure statement was inadequate. For example, the disclosure statement failed to indicate that interest began to accrue on May 10, 1972, which was one day before the transaction was consummated. Such a disclosure is required by 12 C.F.R. § 226.8(b)(1) (1974). In addition, Regulation Z requires that the “prepaid finance charge” be shown in the disclosure statement. 12 C.F.R. § 226.8(d)(2) (1974). In this case, the disclosure statement has a blank for what it indicates is the “total” of the brokerage fees for negotiating the placement of the mortgage, but the blank has one entry in it — “Paulson Mtg. $5,400.00” and one entry above it — “HLC Financial $6,200.00.” Thus the statement fails to give the information that is required by the regulation and that it purports to give since no total of the prepaid finance charges is shown.

      . Although the trial judge did not discuss the waiver issue in his written opinion, the argument was raised below, so it seems clear that the trial court did not believe that the waiver was effective either.

      . Section 130(a) provides:
      Except as otherwise provided in this section, any creditor who fails in connection with any consumer credit transaction to disclose to any person any information required under this part to be disclosed to that person is liable to that person in an amount equal to the sum of
      (1) twice the amount of the finance charge in connection with the transaction, except that the liability under this paragraph shall not be less than $100 nor greater than $1,000; and
      (2) in the case of any successful action to enforce the foregoing liability, the costs of the action together with a reasonable attorney’s fee as determined by the court.
      15 U.S.C. § 1640(a).


author: PER CURIAM:

text:
    Eusibio MUNOZ-CASAREZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
    No. 74-1368.
    United States Court of Appeals, Ninth Circuit.
    Feb. 18, 1975.

      Robert S. Bixby, San Francisco, Cal., for petitioner.
    James L. Browning, Jr., U.S. Atty., San Francisco, Cal., for respondent.
    Before MERRILL and TRASK, Circuit Judges, JAMESON, District Judge.

       Honorable William J. Jameson, Senior United States District Judge for the District of Montana, sitting by designation.

   OPINION

PER CURIAM:

Petitioner is an alien, a native and citizen of Mexico, who was admitted to the United States for permanent residence on June 13, 1956. In July, 1969, he went to Mexico to visit his parents and a sister who was ill, and was absent from this country for about one month. On January 26, 1970, he was convicted in the Superior Court of the County of Ventura, State of California, of the offense, committed on September 14, 1969, of voluntary manslaughter of his former wife, the mother of his four children. On April 18, 1973, an Order to Show Cause and Notice of Hearing was issued, charging that petitioner was subject to deportation pursuant to § 241(a)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4), which provides:

“(a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who—
* * # * * *
(4) is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more * * *.”

Following hearing the immigration judge held that petitioner should be deported, and the ruling was upheld by the Board of Immigration Appeals. This petition for review was then filed. The sole question presented is whether petitioner’s return to this country, following his one month absence in 1969, constituted an entry under § 241(a)(4).

Entry is defined in § 101(a)(13) of the Act, 8 U.S.C. § 1101(a)(13). It means any coming of an alien into the United States, except that an alien having a lawful, permanent residence shall not be regarded as making entry if he can satisfy the Attorney General that his departure was “not intended or reasonably to be expected by him” or was not voluntary.

Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963), dealt with the meaning of “intended” as used in § 101(a)(13) and construed it as referring to “an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien’s permanent residence.” 374 U.S. at 462, 83 S.Ct. at 1812. Among the criteria to be considered are length of the absence, purpose of the visit and whether travel documents are necessary. In Fleuti, the absence from the United States was for a few hours, and application of § 101(a)(13) rendered the alien excludable on re-entry. The Court held the return to this country under these circumstances not to be an entry.

Here the absence was for the far more substantial period of thirty days. It was knowing and purposeful. Petitioner testified that he had planned and saved for the trip for five years. The trip involved traveling to Durango, a distance of approximately 1,000 miles into the interior of Mexico.

Petitioner asserts that he never intended to abandon his residence in the United States. That, however, is not the test. It is not abandonment of residence that constitutes a return to this country an “entry.” It is a departure which is “meaningfully interruptive” of residence. Upon the facts here presented, the record supports the holding of the immigration judge and the Boardc of Immigration Appeals that petitioner’s return to this country from Mexico constituted an entry under § 241(a)(4).

Affirmed.


author: LEWIS, Chief Judge.

text:
    TELECO, INC., a corporation, Plaintiff-Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation, Defendant-Appellee.
    No. 74-1162.
    United States Court of Appeals, Tenth Circuit.
    Argued Oct. 23, 1974.
    Decided Feb. 24, 1975.

      Collier H. Pate, of Eagleton, Nicholson & Pate, Oklahoma City, Okl., for appellant.
    Robert D. Allen, Oklahoma City, oil (William J. Free, Nancy Batchelor and O. Carey Epps, Oklahoma City, Okl., on the brief), for appellee.
    Before LEWIS, Chief Judge, and PICKETT and McWILLIAMS, Circuit Judges.
   LEWIS, Chief Judge.

Teleco, Inc., an Oklahoma corporation, appeals from a summary judgment entered in the United States District Court for the Western District of Oklahoma dismissing this diversity action against Southwestern Bell Telephone Company, a Missouri corporation, for breach of contract and tortious conversion of its property. We affirm the judgment of the district court.

Southwestern Bell supplies telephone service to the public in Oklahoma under tariffs filed with the Oklahoma Corporation Commission. Teleco, which is engaged in the business of selling electronic telephone answering and recording equipment, is one of Southwestern Bell’s customers. In 1972, Teleco connected its own telephone equipment to Southwestern Bell’s telephone network by means of a “direct electrical connection.” Southwestern Bell advised Teleco that such direct connections with its system violated tariffs that permit private connections other than inductive or acoustic connections only by means of a coupler installed by Southwestern Bell. The latter requested Teleco to cease its violation of these “foreign attachment” tariffs, but Teleco refused. Southwestern Bell then gave Teleco ten days’ written notice that its telephone service would be cut off unless Teleco complied with the tariffs. Teleco refused to comply. On July 14, 1972, Southwestern Bell suspended service. Five days thereafter the parties resolved their dispute in a written agreement; on July 19, 1972, telephone service was resumed and has not since been interrupted.

Teleco brought two state court actions against Southwestern Bell, the first predicated on a breach of contract theory and the second upon the theory that Southwestern Bell had tortiously converted Teleco’s property. Both actions arose from Southwestern Bell’s five-day suspension of service; the sole relief sought was monetary damages. Southwestern Bell removed both actions to the United States District Court, which consolidated them for trial. The district court granted summary judgment for Southwestern Bell as to Teleco’s conversion claim for three reasons. First, since telephone service is not personal property, it cannot be the subject of a tortious conversion. Second, since the telephone company never took physical possession of or exercised dominion over Teleeo’s equipment, it cannot be said to have converted Teleco’s property. Third, Southwestern Bell’s interruption of service, whether or not characterized as an act of dominion over Teleco’s personalty, was not wrongful since the utility acted in accordance with tariffs filed with the Oklahoma Corporation Commission. Teleco does not apparently press the conversion issue in this appeal. Accordingly, we merely note that the district court’s conclusions are fully supported by Oklahoma law. See Benton v. Ortenberger, 371 P.2d 715 (Okl.).

Teleco’s second claim is that, by interrupting Teleco’s telephone service, Southwestern Bell breached its contract for service with Teleco. Southwestern Bell replies that Teleco’s compliance with tariffs governing the responsibilities of telephone customers constituted a condition precedent to the utility’s continuing obligation to provide service. Since Teleco concedes having violated the foreign attachment tariffs, Southwestern Bell argues that it was entitled to discontinue service to Teleco. In this appeal, however, Teleco contends that for reasons discussed below Southwestern Bell cannot offer Teleco’s tariff violation as a defense to breach of the service contract.

Teleco first contends that Southwestern Bell deprived Teleco of its fourteenth amendment rights to procedural due process by interrupting its telephone service without a hearing. This argument fails under the rule recently announced in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477. There the Supreme Court held that the state of Pennsylvania was not sufficiently connected with a power company’s termination of service to a customer as to entitle the customer to the procedural rights guaranteed against state action by the fourteenth amendment. The Court significantly noted that although the power company may have been required by Pennsylvania law to obtain state approval of the practices that precipitated the customer’s termination, the state’s regulatory body did not “put its own weight on the side of the proposed practice by ordering it.” 419 U.S. at 357, 95 S.Ct. at 456. In Jackson as in the present case, the challenged tariffs became effective automatically after the utility had filed them with the state regulatory agency for a specified period without objection. See Okla. Const, art. 9, § 18; Okla. Corporation Commission Order No. 68516,. Rule 1. Thus, the actual involvement of the state in the promulgation of tariffs is the same as at issue in Jackson. For these reasons we believe that Jackson applies to the present case and that Southwestern Bell’s interruption of service to Teleco did not amount to state action as contemplated by the fourteenth amendment.

Teleco next argues that the manner in which Southwestern Bell’s foreign attachment tariffs were promulgated violated its rights to due process. Without reference to any authority, Teleco generally asserts that it was entitled to “extensive” notice of the filed tariffs and that failure to provide it with such notice infringed upon its rights. Rules of the Oklahoma Corporation Commission provide that tariffs become effective thirty days after they are filed with the Commission and absent rejection from the Commission. Order No. 68516, Rule 1. The Commission’s rules, however, do not require notice to the public or to interested parties. Teleco concedes that the foreign attachment tariffs were filed in accordance with Commission rules. In adopting rules governing service, the Corporation Commission exercises a delegated legislative function and does not adjudicate factual disputes so as to invoke the due process requirements of notice and hearing. Wood v. Public Utilities Commission, 4 Cal.3d 288, 93 Cal.Rptr. 455, 481 P.2d 823, 825 (Cal.), appeal dismissed, 404 U.S. 931, 92 S.Ct. 293, 30 L.Ed.2d 245. See also Mississippi Fuel Corp. v. F. P. C., 108 U.S.App.D.C. 284, 281 F.2d 919, 927; Sun Oil Co. v. F. P. C., 5 Cir., 256 F.2d 233, 240-41; K. Davis, Administrative Law Treatise § 7.02 et seq. (1958). Accordingly, Teleco was not denied due process in the utility’s promulgation of its foreign attachment tariffs.

Teleco also argues that Southwestern Bell waived its right to enforce the foreign attachment tariffs by reason of alleged lengthy prior notice of Teleco’s direct connection to the Southwestern Bell network. Teleco relies upon the general rule that a party to a contract may waive a right thereunder by conduct indicating an intention to relinquish it. See Steiger v. Commerce Acceptance, Inc., 455 P.2d 81, 89 (Okl.). We agree with the trial court that the general rule of waiver does not apply where, as here, a party’s obligations are subject to approval and regulation by the state’s corporation commission. Under Oklahoma law, tariffs required to be filed with a regulatory body are more than merely the terms of contract between the regulated utility and its customers; they are the law. See Shehi v. Southwestern Bell Telephone Co., 10 Cir., 382 F.2d 627, 629 n. 2. Since the public has the right to nondiscriminatory application of such tariffs, Okla.Const. art. 9, § 18; AAAA-AAAAAAAAAAAAAAAAAAA, Inc. v. Southwestern Bell Telephone Co., 373 P.2d 31 (Okl.), the utility cannot be held to waive enforcement as to some, but not to others of its customers. See Komatz Construction Co. v. Western Union Tel. Co., 290 Minn. 129, 186 N.W.2d 691, 698; see also Chicago, B. & O. Ry. v. Ready Mixed Concrete Co., 8 Cir., 487 F.2d 1263, 1266; Atchison, T. & S.F. Ry. v. John Sexton & Co., D.Kan., 339 F.Supp. 1202, 1206. Were we to hold otherwise we would defeat the equal enforcement of filed tariffs in violation of strong state policy to the contrary.

Teleco next contends that Southwestern Bell arbitrarily refused to install an electronic coupling device at Teleco’s facilities. Had Southwestern Bell provided Teleco with the device as requested, Teleco argues, its own direct electrical connection in violation of the tariffs would have been unnecessary. Southwestern Bell replies that filed tariffs require the imposition of installation charges and a monthly use charge to customers wishing to connect privately-owned telephone equipment to the utility’s network. Teleco advised Southwestern Bell that it would not pay these charges; Southwestern Bell refused to install the couplers until Teleco agreed to pay. The court below held on the basis of these undisputed facts that Southwestern Bell acted neither arbitrarily nor wrongfully in refusing to install a connecting device for Teleco.

Tariffs duly filed with the Corporation Commission bind both the utility and its customers. See Southwestern Bell Telephone Co. v. Cox, 375 P.2d 972 (Okl.). Teleco does not apparently dispute the applicability of the tariff-specified charges to its desired connection. Had Southwestern Bell therefore not insisted upon imposing charges for connection and coupler service, the utility would itself have violated the tariffs. Under these circumstances, the trial court correctly concluded as a matter of law that Southwestern Bell’s refusal to provide service was neither arbitrary nor otherwise wrongful.

Finally, Teleco argues generally that Southwestern Bell’s tariffs, including its foreign attachment tariffs, are unreasonable and unenforceable on a uniform basis; for these reasons, Teleco contends, the utility’s enforcement of the tariffs against Teleco was wrongful. These contentions should be directed to the Oklahoma Corporation Commission, and not to the courts. The Oklahoma Supreme Court has interpreted article 9, section 18 of the state’s constitution as directing that whenever the “validity of any rate or regulation prescribed by the Corporation Commission” must be determined as a basis for relief, the state’s district courts are “without power to grant relief and . . without jurisdiction of the subject matter of the action.” Oklahoma Natural Gas Co. v. Bartlett-Collins Co., 204 Okl. 379, 230 P.2d 481, 482. See also Chicago, R.I. & P. Ry. v. Brown, 105 Okl. 133, 232 P. 43. Since state law precludes state trial court jurisdiction over questions concerning the validity of regulations approved by the Commission? federal district courts sitting in diversity similarly lack jurisdiction. See Woods v. Interstate Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524; 1A J. Moore, Federal Practice ¶ 0.317[6] (2d ed. 1953). Thus the district court had no jurisdiction to determine the reasonableness of the tariffs challenged by Teleco.

The judgment of the district court is affirmed.

      . The pertinent section of Oklahoma’s General Exchange Tariff, effective April 1, 1969, provides:
      Customer-provided and maintained systems may be connected at a service point of the customer, on a voice grade basis, with exchange and long distance message telecommunications service either through a network control signaling unit and connecting arrangement, furnished, installed and maintained by the Telephone Company or through customer-provided equipment which affects such connections externally to a Telephone Company network control signaling unit by means of an acoustic or inductive connection for transmitting and/or receiving.
      Other provisions of the General Exchange Tariff prohibit connections not authorized elsewhere in the Tariff. These provisions entitle the utility to discontinue the telephone service of persons making unauthorized attachments or connections.

      . The Oklahoma Corporation Commission’s rules and regulations governing public telephone service provide that duly filed tariffs are binding upon both the telephone company and the public. Order No. 68516, Rule 1. See also Southwestern Bell Telephone Co. v. Cox, 375 P.2d 972 (Okl.). The General Exchange Tariff provides: “The Telephone Company may discontinue service which is used: . f. In a manner which violates any of the lawful regulations of the Telephone Company.”


text:
    UNITED STATES of America, Appellant, v. Louis POMPONIO, Appellee. UNITED STATES of America, Appellee, v. Charles J. PILUSO, Appellant.
    Nos. 74-1667, 74-1668.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 4, 1974.
    Decided Feb. 7, 1975.

      Frank W. Dunham, Jr., Asst. U. S. Atty. (David H. Hopkins, U. S. Atty., on brief), for appellant in No. 74^1667.
    Alan Y. Cole, Washington, D. C. (Lee A. Schutzman and Cole & Groner, Washington, D. C., on brief), for appellee in No. 74^1667.
    Albert J. Ahern, Jr., Baileys Crossroads, Va., for appellant in No. 74^1668.
    Thomas K. Moore, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee in No. 74 — 1668.
    Before BUTZNER, RUSSELL and FIELD, Circuit Judges.
   FIELD, Circuit Judge:

The principal question on these appeals is the sufficiency of an indictment returned by a grand jury in the Eastern District of Virginia against Louis J. Pomponio, Jr., along with his brothers, Peter and Paul Pomponio, and their attorney, Charles J. Piluso, charging them with violating and conspiring to violate the Travel Act, 18 U.S.C. § 1952. The charges in the indictment stemmed from payments totaling over $300,000 allegedly made by the defendants to Sidney M. Zneimer, a Vice President of the Royal National Bank in New York City, for the purpose of influencing his conduct relative to a number of loans made by the bank to corporations owned or controlled by the Pomponios.

The indictment tracks the language of the statute charging that the defendants “did willfully travel from the State of Virginia to the State of New York, with the intent to promote, manage, carry on, and facilitate the promoting, managing, establishing and carrying on of an unlawful activity, said unlawful activity being the crime of bribery, in violation of the laws of the State of New York (New York Penal Law, McKinney’s Con-sol.Law, c. 40, Article 180) and of the United States (Title 18, United States Code, Section 215); the said unlawful activity relating to the efforts of LOUIS J. POMPONIO, JR., CHARLES J. PILUSO and PAUL POMPONIO to influence Sidney M. Zneimer in the performance of his duties at the Royal National Bank by giving the said Sidney M. Zneimer checks, as detailed in the table below * * * »

[i] Prior to trial the defendants filed a motion to dismiss the indictment on the ground that neither commercial bribery under the New York statute nor the receipt of commissions or gifts by a bank official proscribed by section 215 of the federal code constitute “unlawful activity” within the purview of section 1952. Judge Oren R. Lewis declined to grant the motion and set the case for trial. However, Louis J. Pomponio, Jr., was hospitalized because of illness and the trial proceeded against the other three defendants. The court granted a motion for judgment of acquittal of Peter Pomponio and the jury returned a verdict of not guilty with- respect to his brother Paul. Charles J. Piluso was found guilty-on all three counts and has appealed his conviction in Case No. 74^-1668. Thereafter, Louis J. Pomponio, Jr., was tried before Judge Albert V. Bryan, Jr., and was found guilty by the jury. During the course of that trial, Pomponio’s counsel challenged the sufficiency of the indictment in a motion for judgment of acquittal. Judge Bryan, understandably, felt bound by the earlier ruling of Judge Lewis and denied the motion. However, Judge Bryan granted Pomponio’s post-trial motion for arrest of judgment, holding that “Section 215 of Title 18 of the U.S.Code and the New York Penal Code, in my view do not come within the unlawful activity definition of Section 1952 of Title 18.” The government has appealed this action in Case No. 74 — 1667.

Primarily, the defendants contend that the word “bribery” as used in the Travel Act is intended to mean bribery in the classic sense of the common law which was limited to the corruption of public officials in the administration of their public trust and does not extend to such conduct by private individuals. Concededly, the crime of bribery was originally limited to cases involving the corruption of those in the public service, and some statements in the limited legislative history of the Act might appear to support the position of the defendants. However, while the states and the federal government have enacted statutes dealing with the corruption of public officials, they have also extended the concept of bribery into areas of private conduct which we think appropriately fall within the ambit of the Travel Act. “There can be no question but that any crime of bribery involves moral turpitude,” and we discern no reason why the Congress, in using the term “bribery,” intended that it be limited to the corruption of public officials. We find the answer to this contention of the defendants in United States v. Nardello, 393 U.S. 286, 292-293, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969), where a similar argument with respect to the meaning of the word “extortion” in the Act was urged upon the Court. In rejecting this argument the Court stated:

“Appellees suggest, however, that Congress intended that the common-law meaning of extortion — corrupt acts by a public official — be retained. If Congress so intended, then § 1952 would cover extortionate acts only when the extortionist was also a public official. Not only would such a construction conflict with the congressional desire to curb the activities of organized crime rather than merely organized criminals who were also public officials, but also § 1952 imposes penalties upon any individual crossing state lines or using interstate facilities for any of the statutorily enumerated offenses. The language of the Travel Act, ‘whoever’ crosses state lines or uses interstate facilities, includes private persons as well as public officials.”

Paraphrasing the language of the Court in Nardello, “[i]n light of the scope of the congressional purpose we decline to give the term [bribery] an unnaturally narrow reading * * * and thus conclude that the acts for which [defendants] have been indicted fall within the generic term [bribery] as used in the Travel Act.” 393 U.S. at 296, 89 S.Ct. at 539.

The defendants further contend that since 18 U.S.C. § 215 criminalizes only the act of the bank officer who receives the proscribed thing of value, they as payors could not be convicted of an offense under that statute and, accordingly, it was improperly designated as an “unlawful activity” in the indictment. As pointed out in United States v. Wechsler, 392 F.2d 344 (4 Cir. 1968), the fallacy in such an argument lies in a too heavy reliance on the role played by section 215 in the indictment, and elides the fact that it serves “only as a background identification of the unlawful activities.” The “unlawful activity” specified in the Act may be bribery under either state or federal law and reference to such law is necessary only to identify the type of “unlawful activity” in which the defendants intended to engage. Proof that the unlawful objective was accomplished or that the referenced law has actually been violated is not a necessary element of the offense defined in section 1952. See United States v. Rizzo, 418 F.2d 71 (7 Cir. 1969); McIntosh v. United States, 385 F.2d 274 (8 Cir. 1967). Accordingly, we find it sufficient that the indictment charged the defendants with interstate travel with the intent, inter alia, to facilitate the violation of the federal statute by Zneimer. Finally, the defendants argue that our construction of the Act improperly escalates these underlying misdemeanors to federal felonies, but such a contention has been summarily rejected by the courts. United States v. Karigiannis, 430 F.2d 148 (7 Cir. 1970); United States v. Brennan, 394 F.2d 151 (2 Cir. 1968).

We have considered the other points raised on Piluso’s appeal and find no reversible error. Accordingly, the conviction in No. 74 — 1668 is affirmed. The order of the district court granting Pomponio’s motion in arrest of judgment in No. 74 — 1667 is reversed, and the case is remanded for further proceedings consistent with this opinion.

Affirmed in case No. 74 — 1668.

Reversed and remanded in case No. 74-1667.

      . 18 u.s.c.
      § 1952. Interstate and foreign travel or transportation in aid of racketeering enterprises.
      (a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to—
      (1) distribute the proceeds of any unlawful activity; or
      (2) commit any crime of violence to further any unlawful activity; or (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,
      and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.
      (b) As used in this section “unlawful activity” means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics or controlled substances (as defined in section 102(6) of the Controlled Substances Act), or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.
      (c) Investigations of violations under this section involving liquor shall be conducted under the supervision of the Secretary of the Treasury. As amended Pub.L. 91-513, Title II, § 701(i)(2), Oct. 27, 1970, 84 Stat. 1282.

      . § 180.00 Commercial bribing
      A person is guilty of commercial bribing when he confers, or offers or agrees to confer, any benefit upon any employee, agent or fiduciary without the consent of the latter’s employer or principal, with intent to influence his conduct in relation to his employer’s or principal’s affairs.
      Commercial bribing is a class B misdemean- or.

      . § 215. Receipt of commissions or gifts for procuring loans.
      Whoever, being an officer, director, employee, agent, or attorney of any bank, the deposits of which are insured by the Federal Deposit Insurance Corporation, of a Federal intermediate credit bank, or of a National Agricultural Credit Corporation, except as provided by law, stipulates for or receives or consents or agrees to receive any fee, commission, gift, or thing of value, from any person, firm, or corporation, for procuring or endeavoring to procure for such person, firm, or corporation, or for any other person, firm, or corporation, from any such bank or corporation, any loan or extension or renewal of loan or substitution of security, or the purchase or discount or acceptance of any paper, note, draft, check, or bill of exchange by any such bank or corporation, shall be fined not more than $5,000 or imprisoned not more than one year or both.

      . Although the indictment contained one conspiracy count under 18 U.S.C. § 371 and eight substantive counts, the government proceeded to trial on the conspiracy count and only two of the substantive counts, Counts Nos. V and IX. The quoted language is from Count No. V of the indictment, but charging language to the same effect was employed in the conspiracy count as well as Count No. IX.

      . The motion in arrest of judgment was granted pursuant to Rule 34, Fed.R.Cr.P., and is appealable under 18 U.S.C. § 3731. See Esposito v. United States, 492 F.2d 6 (7 Cir. 1974).

      . See 3 Wharton’s Criminal Law and Procedure, §§ 1380 et seq. (R. Anderson Ed. 1957).

      . See Hearings on S. 1654-58, S. 1665 Before the Senate Committee on the Judiciary, 87th Cong., 1st Sess. (1961).

      . See, e.g., 18 U.S.C. §§ 201, 203, 210, 211 and 214; N.Y.Penal Law §§ 200.00 and 200.10 (McKinney 1973), bribery of a public servant and bribe receiving by a public servant; N.Y. Penal Law §§ 180.15 and 180.25 (McKinney 1967), bribery of a labor official and bribe receiving by a labor official; N.Y.Penal Law §§ 180.40 and 180.45 (McKinney 1967), sports bribing and sports bribe receiving.

      . United States v. Esperdy, 285 F.2d 341, 342 (2 Cir. 1961).

      . In the Southern District of New York one judge has reached the conclusion that commercial bribery under the New York statute does not fall within section 1952. United States v. Niedelman, D.C., 356 F.Supp. 979 (1973). However, he acknowledged that “[s]imilar contentions have heretofore been raised and rejected in this District [in four other decisions].” Id. at 981.

      . Incident to this contention, counsel in their arguments and briefs discussed at some length the dichotomy with respect to the question of whether the payor can be convicted as an aider and abettor under a statute such as 18 U.S.C. § 215. See United States v. Kenner, 354 F.2d 780 (2 Cir. 1965); United States v. Bowles, 183 F.Supp. 237 (D.C.Me. 1958); cf. May v. United States, 84 U.S.App. D.C. 233, 175 F.2d 994 (1949); see also United States v. Johnson, 337 F.2d 180 (4 Cir. 1964).

      . Defendants take the position that if either the New York commercial bribery law or the federal statute was improperly included in the indictment, the indictment must fall. In view of our disposition of the case, we find it unnecessary to reach this point.

      . 392 F.2d at 346.


text:
    ELGI HOLDING, INC., Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    No. 586, Docket 74-2002.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 24, 1975.
    Decided Feb. 28, 1975.

      F. Bernard Hamsher, Buffalo, N. Y., for appellant.
    Richard E. Moot, Buffalo, N. Y. (Ohlin, Damon, Morey, Sawyer & Moot, Buffalo, N. Y., on the brief), for appellee.
    Before LUMBARD, HAYS and MULLIGAN, Circuit Judges.
   PER CURIAM:

Plaintiff Elgi Holding Inc. [Elgi] appeals from a judgment entered July 3, 1974, in the Western District, John T. Curtin, C. J., following a jury trial and verdict in favor of defendant Insurance Company of North America [INA]. We affirm.

Elgi brought this action against INA in state court for $212,960 alleging that amount was due it under two INA insurance policies that covered an office-warehouse structure in Buffalo which was completely destroyed by fire in the early morning hours- of May 7, 1972. INA removed the case to the district court and alleged a defense of fraud, claiming that Lester Hall, Elgi’s owner, had caused the fire to be set as part of an attempt to obtain the insurance proceeds in order to alleviate his precarious financial situation.

Direct proof of arson is seldom available, so courts have long recognized that it can be established in civil cases by circumstantial evidence. See, e. g., Fratto v. Northern Insurance Co., 242 F.Supp. 262, 271 (W.D.Pa.1965), affd., 359 F.2d 842 (3d Cir. 1966). Here there was sufficient evidence to sustain the jury’s verdict. INA offered two expert witnesses to explain the cause of the fire. William Alvine, a professional fire analyst, testified that his observations of the scene led him to conclude that the fire was a low-burning fire that had spread rapidly throughout the structure. He thought that the fire had been accelerated by the use of a flammable substance. He also stated that his conclusions were verified by a laboratory report which indicated the presence of gasoline in debris taken from the burned building. John F. Fitch, a fire investigator for the Buffalo Fire Department, also testified that the fire had rapidly engulfed the building, probably through the use of an accelerant. Elgi’s counter evidence established only that no criminal charges of arson had been brought.

INA also offered evidence as to Hall’s financial status. It showed that a bank had threatened to foreclose the mortgage on the warehouse immediately pri- or to the fire because Hall had missed eight consecutive payments (totaling in excess of $9,000). In addition, INA showed that Hall had obtained $33,000 in income continuation insurance on the building immediately prior to the fire (May 3), that he had written many bad checks in the four months preceding the fire and that he had outstanding judgments and liens against him at the time of the fire.

Hall denied that he had any role in the fire. However, a reading of the transcript discloses that Hall’s testimony was often contradicted by other evidence. Thus, the jury could choose to disbelieve his denial of complicity in the fire.

We think the above evidence, which established that the fire was incendiary in nature and that Hall had a motive to cause it, is such that we cannot say that reasonable men could not conclude Hall caused the fire. Consequently, the jury’s verdict should stand. See Hanover Fire Ins. Co. v. Argo, 251 F.2d 80, 82 (5th Cir. 1957); Fire Assn. v. Oneida County Macaroni Co., 294 F. 633, 635-37 (2d Cir. 1923) (upholding jury verdicts).

Elgi argues that the trial court improperly admitted evidence concerning Hall’s financial difficulties after the fire. Since Hall had attempted to establish himself as a well-to-do and successful businessman at the time of the trial, this evidence was properly admitted as relevant to the question of motive and to attack Hall’s credibility regarding his financial situation.

Elgi argues next that the court erred in allowing Alvine to refer to the lab report because the report was not a business record and because the person who conducted the tests was not available for cross-examination. While Elgi may be technically correct in its claim of error, see C. McCormick, Evidence § 15 (2d ed. 1972); see, however, Fed.R.Ev. 703 (effective July 1, 1975), we are not persuaded to reverse the jury’s verdict in this civil case on this ground as Elgi was not prejudiced by the reference to the report.

Elgi had the opportunity to (and did) attack the validity of the tests performed by the laboratory through cross-examination of Alvine and introduction of a chemist’s testimony in its rebuttal case. Moreover, Alvine testified that his opinion that the fire had been accelerated by use of a flammable liquid was not based on the report but rather on his examination of the burned premises. The report only offered verification for the opinion he had already reached independently. Investigator Fitch had arrived at a conclusion similar to Alvine’s after his inspection of the premises. The only witness called by Elgi who discussed the cause of the fire indicated that its origin was suspicious. In light of the considerable evidence that the fire was incendiary, and the lack of any evidence suggesting an accidental cause, the reference by Alvine to the lab report cannot be said to have prejudiced Elgi.

Finally, Elgi argues that it was prejudiced because the trial judge allowed it only ten minutes to present its rebuttal witness. We do not agree. It appears from the record that the judge’s statement was only a general exhortation to the lawyers to finish the case quickly as it was late on a Friday afternoon. In any event, Elgi’s counsel made no protest and a reading of the record indicates that he had ample time in which to question his witness, who was called solely for the purpose of attacking the scientific validity of the procedures followed by the laboratory whose report had been referred to by Alvine.

Affirmed.