author: ESTES, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Henry M. COLLIER, Jr., M. D., Defendant-Appellant.
    No. 72-3242.
    United States Court of Appeals, Fifth Circuit.
    May 1, 1973.

      B. Clarence Mayfield, Robert E. Barker, Savannah, Ga., for defendant-appellant.
    R. Jackson B. Smith, Jr., U. S. Atty., Augusta, Ga., Lamar C. Walter, Asst. U. S. Atty., Savannah, Ga., for plaintiff-ap-pellee.
    Before COLEMAN and SIMPSON, Circuit Judges, and ESTES, District Judge.
   ESTES, District Judge:

Dr. Henry M. Collier, Jr., a physician authorized to dispense controlled substances, pleaded guilty to six counts of violating 21 U.S.C. § 841(a)(1) by distributing a controlled substance, methadone, a synthetic opiate, while not acting in the usual course of his professional practice and was fined $20,000. Dr. Collier’s appeal consists exclusively of a multi-faceted attack upon the constitutionality of 21 U.S.C. § 841(a)(1) as applied to physicians.

Dr. Collier’s primary contention is that § 841(a)(1), as applied to physicians, is unconstitutionally vague. This argument centers on the basis that Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970 and the regulations issued pursuant to the act make it illegal for a physician to dispense directly to the ultimate user a schedule II controlled substance other than “in the course of his professional practice.” Appellant contends that those words do not warn the physician of what conduct is proscribed, and that the statute is without objective standards and is subject to diverse interpretation. Although this issue has not been previously determined concerning the present act, the same standard has been judicially interpreted m prior federal drug statutes. Manifestly the language “in the course of professional practice” is intended to limit the immunity of a licensed practitioner. It is apparent that a licensed practitioner is not immune from the act solely due to his status, White v. United States, 399 F.2d 813 (8 Cir. 1968), but rather, because he is expected to prescribe or dispense drugs within the bounds of his professional practice of medicine. A physician is restricted to dispensing or prescribing drugs in the bona fide treatment of a patient's disease, including a dispensing of a moderate amount of drugs to a known addict in a good-faith attempt to treat the addiction or to relieve conditions or suffering incident to addiction. Linder v. United States, 268 U.S. 5, 45 S.Ct. 446, 69 L.Ed. 819 (1925); Boyd v. United States, 271 U.S. 104, 46 S.Ct. 442, 70 L.Ed. 857 (1926); United States v. Brandenburg, 155 F.2d 110 (3 Cir. 1946); Strader v. United States, 72 F.2d 589 (10 Cir. 1934). However, under the guise of treatment a physician cannot sell drugs to a dealer nor distribute drugs intended to cater to cravings of an addict. Jin Fuey Moy v. United States, 254 U.S. 189, 41 S.Ct. 98, 95 L.Ed. 214 (1920); United States v. Doremus, 249 U.S. 86, 39 S.Ct. 214, 63 L.Ed. 493 (1919); Webb v. United States, 249 U.S. 96, 39 S.Ct. 217, 63 L.Ed. 497 (1919); United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619 (1922). Congress did not intend for doctors to become drug “pushers.” United States v. Warren, 453 F.2d 738 (2 Cir.), cert. denied, 406 U.S. 944, 92 S.Ct. 2040, 32 L.Ed.2d 331 (1972); White v. United States, 399 F.2d 813 (8 Cir. 1968).

In making a medical judgment concerning the right treatment for an individual patient, physicians require a certain latitude of available options. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 747, 35 L.Ed.2d 201 (1973). Hence, “[w]hat constitutes bona fide medical practice must be determined upon consideration of evidence and attending circumstances.” Linder v. United States, supra, 268 U.S. at 18, 45 S.Ct. at 449.

That statutes affecting medical practice need not delineate the precise circumstances constituting the bounds of permissible practice is clearly illustrated by two recent cases in which the Supreme Court was called upon to consider whether certain abortion statutes were unconstitutionally vague in distinguishing between legal and illegal abortions. In United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971), a District of Columbia statute made abortions illegal unless “necessary for the preservation of the mother’s life or health.” The Court held that the term “health” included psychological as well as physical well-being and, holding that the statute presented no problem of vagueness, concluded:

“Indeed, whether a particular operation is necessary for a patient’s physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered.”

402 U.S. at 72, 9 S.Ct. at 1299.

In Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), a Georgia statute which provided that it was illegal for a physician to perform an abortion except “based upon his best clinical judgment that an abortion is necessary” was attacked as vague because the word “necessary” was undefined. The Court held the language not vague because “whether . . . ‘an abortion is necessary,’ is a professional judgment that the Georgia physician will be called upon to make routinely.” 93 S.Ct. at 747. Similarly here the physician must make a professional judgment as to whether a patient’s condition is such that a certain drug should be prescribed.

Appellant next contends that the statute violates the Tenth Amendment by invading the state’s residual police powers, in particular the power to control medical practice. The Tenth Amendment does not operate upon a valid exercise of power delegated to Congress by the Commerce Clause. Similar attacks upon § 841(a)(1) as invading the police power reserved to the states because the statute does not require a showing that the individual acts prosecuted affected interstate commerce have already been rejected by both the Fifth and Sixth Circuits. United States v. Lopez, 459 F.2d 949 (5 Cir. 1972); United States v. Scales, 464 F.2d 371 (6 Cir. 1972). These cases held that § 841(a) clearly constituted a permissible exercise of Congress’s powers under the Commerce Clause. Since Congress itself has already determined that local distribution and possession of controlled substances have a substantial and direct effect upon interstate commerce, 21 U.S.C. § 801, the only function of the courts is to determine whether the particular class of activities regulated is within the federal power. Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971); United States v. Lopez, supra. Appellant is a member of a class with legal access to drugs and a legal right to deliver or authorize delivery of drugs to other persons. An absolute exemption of this class from appropriate controls would enable drugs to be diverted from legitimate channels to an illegal market. For this very purpose Congress fashioned the Comprehensive Drug Control Act to provide “a ‘closed’ system of drug distribution for legitimate handlers of such drugs. Such a closed system should significantly reduce the widespread diversion of these drugs out of legitimate channels into the illicit market, while at the same time providing the legitimate drug industry with a unified approach to narcotic and dangerous drug control.” H.R.Rep.No.91-1444, 91st Cong. 2d Sess., U.S.Code Cong. & Admin.News, pp. 4566, 4571-4572 (1970). Congress could reasonably decide that in order to effectively regulate interstate commerce in drugs, it was necessary to insure that persons within legitimate distribution channels, including the dispensing physicians and pharmacists, did not divert drugs into the illicit market.

Another contention of Dr. Collier is that the Act unconstitutionally negates the presumption of innocence. Title 21 U.S.C. § 885(a)(1) provides that it shall not be necessary for the prosecution to negative any exemption in the indictment or trial and that “the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit.” In considering the issue of burden of proof, one must distinguish between the burden of persuasion and the burden of going forward with the evidence. Of course, the burden of persuading the jury beyond a reasonable doubt that the defendant ' committed every essential element of the offense charged remains upon the prosecution throughout the trial. This precise constitutional attack on the predecessor to the present act was rejected by this Circuit in United States v. Ramzy, 446 F.2d 1184 (5 Cir. 1.971). See also, United States v. Rowlette, 397 F.2d 475 (7 Cir. 1968).

Appellant next contends that the maximum punishment established by 21 U.S.C. § 841(b)(1)(A) for violation of § 841(a), 15 years of imprisonment or a $25,000 fine or both for cases involving a schedule II controlled substance, is a cruelly excessive punishment when applied to physicians prescribing methadone for the treatment of heroin addicts. It is unnecessary for us to decide this contention, since appellant was not sentenced to any confinement. Nor can appellant rely upon a Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), argument that any punishment would be cruel and unusual for he was prosecuted not on the basis of his status as a physician but on the basis that he illegally distributed controlled substances other than in the course of his professional practice. Hence this ease does not come within the penumbra of the Robinson decision.

Dr. Collier’s last contention is that there is a constitutionally protected right to privacy in the physician-patient relationship which is violated by the Comprehensive Drug Control Act. We find this contention meritless. Appellant has ignored the fact that the statute does not invade the legitimate doctor-patient relationship when the doctor may dispense or prescribe drugs for medical reasons, but bars only activities outside the physician’s professional practice, where a physician acts, in essence, as a “pusher.” There is no constitutional protection of such activity.

Therefore, the conviction of Dr. Collier is

Affirmed.

      . Methadone is listed in schedule II, which consists of drugs which have a high potential for abuse, have a currently accepted medical use with severe restrictions, and, if abused, may lead to severe psychological or physical dependence. 21 U.S.C. § 812.

      . The following are the pertinent provisions of Title II of the act and the regulations promulgated pursuant to the act:
      21 U.S.C. § 841 Prohibited acts A — Penalties
      (a) Except as authorized by this [title,] it shall be unlawful for any person knowingly or intentionally—
      (1) to . . . distribute, or dispense . a controlled substance .
      21 U.S.C. § 829 Prescriptions (a) Except when dispensed directly by a practitioner, other than a pharmacist, to an ultimate user, no controlled substance in schedule II may be dispensed without the written prescription of a practitioner ....
      21 U.S.C. § 821 Rules and regulations The Attorney General is authorized to promulgate rules and regulations and to charge reasonable fees relating to the registration and control of the manufacture, distribution, and dispensing of controlled substances.
      21 O.F.R. § 306.11 Requirement of prescription
      (b) An individual practitioner may administer or dispense directly a controlled substance listed in schedule II in the course of his professional practice without a prescription, subject to § 300.07.
      21 C.F.R. § 306.07 Dispensing of narcotic drugs for maintenance purposes
      The administering or dispensing directly (but not prescribing) of narcotic drugs listed in any schedule to a narcotic drug dependent person for the purpose of continuing his dependence upon such drugs in the course of conducting an authorized clinical investigation in the development of a narcotic addict rehabilitation program shall be deemed to be within the meaning of the term “in the course of his professional prac-tico or research” in section 308(e) of the Act (21 U.S.C. 828(e)): Provided, That approval is obtained prior to the initiation of such a program by submission of a Notice of Claimed Investiga-tional Exemption for a New Drug to the Food and Drug Administration which will be reviewed concurrently by the Food and Drug Administration for scientific merit and by the Bureau for drug control requirements, and that the clinical investigation thereafter accords with such approval, as required in § 130.44 of this title.
      21 C.F.R. § .306.04 Purpose of issue of prescription
      (a) A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner. .
      21 U.S.C. § 802 Definitions As used in this title :
      (1) The term “addict” means any individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction.
      (2) The term “administer” refers to the direct application of a controlled substance to the body of a patient or research subject by—
      (A) a practitioner (or, in his presence, by his authorized agent), or
      (B) the patient or research subject at the direction and in the presence of the practitioner,
      whether such application be by injection, inhalation, ingestion, or any other means.
      * * * *
      (6) The term “controlled substance” means a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this title [21 USC § 8121.
      # s¡; sfc sfc :ts
      (8) The terms “deliver” or “delivery” mean the actual, constructive, or attempted transfer of a controlled substance, whether or not there exists an agency relationship.
      * * * * *
      (10) The term “disxiense” means to deliver a controlled substance to an ultimate user or research subject by, or pursuant to the lawful order of, a practitioner, including the prescribing and administering of a controlled substance and the packaging, labeling, or compounding necessary to prepare the substance for such delivery. The term “dispenser” means a practitioner who so delivers a controlled substance to an ultimate user or research subject.
      (11) The term “distribute” means to deliver (other than by administering or dispensing) a controlled substance. The term “distributor” means a xterson who so delivers a controlled substance.
      * * * * *
      (20) The term “practitioner” means a physician, dentist, veterinarian, scientific investigator, pharmacy, hospital, or other person licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practices or does research, to distribute, dispense, conduct research with respect to, administer, or use in teaching or chemical analysis, a controlled substance in the course of professional practice or research.

      . The Harrison Narcotic Act, Dec. 17, 1914, Oh. 1, 38 Stat. 785 (repealed by the Comprehensive Drug Control Act of 1970), and the Drug Abuse Control Amendments of 1965 of the Federal Food, Drug and Cosmetic Act, July 15, 1965, Pub.L. 89-74, § 4, 79 Stat. 232 (repealed by the Comprehensive Drug Control Act of 1970).

      . Several past cases demonstrate that certain unscrupulous persons, who are found in the medical as well as other professions, would welcome a cloak of immunity as an invitation to become large-scale “pushers.” Webb v. United States, 249 U.S. 96, 39 S.Ct. 217, 63 L.Ed. 497 (1919) ; Jin Fuey Moy v. United States, 254 U.S. 189, 41 S.Ct. 98, 95 L.Ed. 214 (1920) ; United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619 (1922) ; Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943) ; United States v. Brandenburg, 155 F.2d 110 (3 Cir. 1946) ; White v. United States, 399 F.2d 813 (8 Cir. 1968).

      . A five-year sentence for a physician for violating the Harrison Narcotic Act, by prescribing drugs other than in the course of his professional practice, has been held not to be cruel and unusual punishment. Boehm v. United States, 21 F.2d 283 (8 Cir. 1927).


source: Caselaw Access Project

author: MANSFIELD, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Leonard W. WISNIEWSKI et al., Appellants.
    No. 628, Docket 72-1671.
    United States Court of Appeals, Second Circuit.
    Argued March 1, 1973.
    Decided April 3, 1973.

      Warren A. Luedecker, Bridgeport, Conn., for appellants Wisniewski, Novak, Camillo, Jr., Benoit and DiFederico.
    Raymond B. Rubens, Bridgeport, Conn. (Rubens & Saffo, Bridgeport, Conn., of counsel), for appellant Staires.
    W. Paul Flynn, New Haven, Conn. (Kopkind, Flynn & Raccio, P.C., New Haven, Conn., of counsel), for appellant Cavallaro.
    Lucy V. Katz, Attorney, Bridgeport, Conn. (Koskoff, Koskoff, Rutkin & Bieder, Theodore I. Koskoff, Bridgeport, Conn., of counsel), for appellant Pulver.
    Barry J. Cutler, Asst. U. S. Atty. (Stewart H. Jones, U. S. Atty., D. Conn., New Haven, Conn., of counsel), for appellee.
    Before KAUFMAN and MANSFIELD, Circuit Judges, and BRYAN, District Judge.

       Of the United States District Court for the Southern District of New York, sitting by designation.

   MANSFIELD, Circuit Judge:

In this prosecution for the knowing receipt and concealment of stolen motor vehicles in violation of 18 U.S.C. §§ 2313 and 2, eight co-defendants appeal from a judgment of conviction entered May 23, 1972, in the United States District Court for the District of Connecticut following jury verdicts of guilty in a trial before Judge Thomas F. Croake of the Southern District of New York, sitting by designation. Appellants Leonard Wisniewski, Robert Staires, Jeffrey Pulver, Salvatoro Cavallaro and Ernest Novak, were named in three counts of the indictment: the first for the receipt and concealment of a stolen 1971 red Ford station wagon; the second for the receipt and concealment of a stolen 1969 gold Pontiac; and the third for the receipt and concealment of a stolen 1968 blue Cadillac. Appellants Dennis Di-Federico and David Benoit were named in the first two counts and defendant Joseph Camillo, Jr. was named in the first and third counts.

On appeal all defendants raise the impropriety of admitting certain testimony at trial allegedly stemming from an unlawful arrest. Some also claim that the evidence was insufficient as to them, that the trial judge committed reversible error in his charge and that they were denied effective assistance of counsel for the reason that all defendants were represented by the same trial counsel. As we find these assertions to be without merit, we affirm the convictions.

On December 13, 1971, a team of FBI agents commenced surveillance of Leonard’s House of Buys and of the Milford Salvage Company, enterprises located on adjacent properties in Milford, Connecticut, and owned by the defendant Leonard Wisniewski. The bulk of the government’s ease was based on the testimony of the FBI agents and photographs taken by them in the course of their surveillance. The agents observed stolen cars being delivered to these premises, which resembled a combination used car lot and junk yard, and there dismantled with the apparent purpose of selling the resulting automobile parts.

In the late afternoon of December 15, 1971, a stolen 1971 red Ford station wagon with New York license plates, the subject of the first count, was driven up to Leonard’s House of Buys. Following closely behind was a white 1965 Pontiac Bonneville, also with New York plates, which was to accompany each of the other stolen cars specified in the indictment. Agent Chastain testified that on December 15 he saw the defendants Be-noit, Pulver, Novak and Wisniewski engaging in various activities apparently pertaining to the stolen car. Pulver was observed driving the stolen red station wagon from the House of Buys to the rear side of the Milford Salvage building, from which bright reflections then appeared, indicating that a blow torch was being used.

On the following day, December 16, 1971, defendants Cavallaro, Camillo, DiFederico, Benoit, Novak, Staires and Wisniewski were seen in the surveillance area. Agent Chastain “observe[d] the doors [of the stolen 1971 Ford] had been removed, the seats removed, the hood and fender removed from the car: in fact, it was still steaming or smoking from that area.” Shortly thereafter other incriminating conduct was observed: Staires exited from the Milford Salvage building carrying “a car type radio”; Wisniewski, sometimes with Staires and Pulver by his side, was seen using hand motions apparently to direct his colleagues, including DiFederico and Novak, as to the disposition of car parts; Benoit was seen driving a yellow truck carrying the body of a red station wagon; parts of a car frame were observed in a green truck driven by defendant Camillo; another truck (with Staires in the rear) transported what appeared to be the nose of a red Ford to a nearby Ford dealer. Salvador Vargas, an insurance adjuster, testified that he had informed Wisniewski in early December, that he was in need of a nose of aTl971 Ford station wagon.

The drama continued on December 17, 1971. The government established that another ear of recent vintage, a 1969 gold Pontiac, had been stolen on that date. Subsequently, on that day the stolen gold 1969 Pontiac, followed by the same white 1965 Pontiac that had accompanied the stolen 1971 Ford upon its arrival at the premises, was delivered to the surveillance area. Once again Wis-niewski, Staires, Benoit, DiFederico, No-vak and Pulver were seen on the premises. This stolen car, like its predecessor, was driven “through the parking lot in front of Leonard’s House of Buys, down over the. little incline, into the junk yard; drove it through the junk yard and turned to go through the gate. The car (the gold Pontiac) then went behind the Milford Salvage building and out of my sight.” Thus the second stolen car was secreted.

Finally we come to December 27, the day of the arrests, and the day of the receipt of the stolen blue 1969 Cadillac, the subject of the third count. The owner of the car testified that it had been stolen that day and that the trunk contained a yellow box filled with a half case of Cutty Sark scotch. With Wis-niewski, Staires, Pulver and Camillo on the porch of the House of Buys, two automobiles with New York licenses, the stolen blue Cadillac and the familiar white Bonneville, were driven into the parking lot. The Cadillac was then driven “through the parking lot, down over the embankment, through the junk yard . . . and out of sight behind the Milford Salvage building.” Shortly thereafter Staires was seen walking from the Salvage building to the “House of Buys” carrying a “yellow box with the Cutty Sark on it.” After communicating with an FBI supervisor and with the local police, Agent Chastain, with the purpose of making an arrest, entered the Salvage building where he saw No-vak, Camillo and Cavallaro next to the stolen 1969 Cadillac, already partially dismantled, at which time they were arrested. Arrests of the other defendants followed.

Thus the two-week surveillance uncovered evidence (including the receipt and disposition of three stolen late model cars) which, when viewed most favorably to the government, established that the defendants were acting in criminal concert to carry out a highly organized scheme to receive, conceal and dismantle stolen cars. The jury found all defendants guilty of the counts submitted for verdict.

All defendants assert that the trial judge erred in admitting into evidence that portion of Agent Chastain’s testimony which referred to his observations and certain photographs taken at the time of making the arrest on December 27, 1971. It is contended that no probable cause existed for the entry and arrest, that in any event an arrest warrant should have been obtained, and that since the arrests were therefore unlawful any resulting evidence was tainted and should have been suppressed.

“The lawfulness of the arrest without warrant . . . must be based upon probable cause, which exists where the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense ... is being committed.” Ker v. California, 374 U.S. 23, 34-35, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963) (citations omitted). “Agents of the FBI have statutory authority to make felony arrests without a warrant for offenses ‘committed in their presence,’ or where they have ‘reasonable grounds to believe that the person to be arrested has committed or is committing’ felony, 18 U.S.C. § 3052. The ‘reasonable grounds’ requirement of the statute is equivalent to the Fourth Amendment’s requirement that arrests may be made only upon ‘probable cause’. What constitutes ‘reasonableness’ or ‘probable cause’ must depend upon the specific facts of each case. . . . ” United States v. Elgisser, 334 F.2d 103, 109 (2d Cir.), cert. denied, Gladstein v. United States, 379 U.S. 879, 85 S.Ct. 148, 13 L.Ed.2d 86 (1964) (citations omitted). See United States v. Drummond, 354 F.2d 132, 153 (2d Cir. 1965), cert. denied, 384 U.S. 1013, 86 S.Ct. 1968, 16 L.Ed.2d 1031 (1966) ; Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).

Here it is clear that the arresting officials had ample probable cause to believe that the crime of receiving stolen automobiles was being committed. A late model stolen Cadillac, accompanied by the tell-tale white Bonneville, appeared on the premises and was promptly secreted behind the Salvage building. Present were the same persons who had played varying parts in the earlier receipt and concealment of two other stolen cars. Moreover, the agents knew that less than two weeks earlier the stolen red Ford had promptly been dismembered upon delivery. They feared — with justification as it turned out — that the Cadillac was destined for a similar fate. Under the circumstances the arresting officers were amply justified in taking prompt action. Cf. United States v. Coplon, 185 F.2d 629, 635 (2d Cir. 1950), cert. denied, 342 U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688 (1952). Furthermore the government offered at trial to prove that the agents, before closing in to make the arrests, had been informed that the Cadillac had in fact been stolen.

The contention that the court was foreclosed from considering the government’s offer of proof as to the agents’ being informed regarding the theft of the Cadillac is meritless. Despite ample notice of the government’s intended proof, the motion was, with Judge Croake’s permission, made during trial. No abuse of discretion is shown on his part in denying the motion. See United States v. Romero, 249 F.2d 371, 374 (2d Cir. 1957); United States v. DiDonato, 301 F.2d 383, 384 (2d Cir.), cert. denied, 370 U.S. 917, 82 S.Ct. 1557, 8 L.Ed.2d 497 (1962) ; United States v. Watts, 319 F.2d 659, 660 (2d Cir. 1963); United States v. Roth, 430 F.2d 1137, 1139 (2d Cir. 1970). Cf. F.R.Cr.P. Rule 41(e).

Appellants Staires, Cavallaro and Pul-ver contend that the evidence did not establish knowledge on their part that the cars were stolen or that they actually participated in the offenses, elements necessary to convict them either as principals or as aiders and abettors. See 18 U.S.C. §§ 2313 and 2. We find these contentions without merit.

While mere coincidental presence at the scene of a crime is insufficient to establish participation, see United States v. Vilhotti, 452 F.2d 1186, 1188 (2d Cir. 1971), cert. denied, 406 U.S. 947, 92 S.Ct. 2051, 32 L.Ed.2d 335 (1972); United States v. Kearse, 444 F.2d 62, 63-64 (2d Cir. 1971), “evidence of an act of relatively slight moment may warrant a jury finding participation in a crime [and] that participation may be proved by circumstantial evidence. . ” United States v. Garguilo, 310 F.2d 249, 253 (2d Cir. 1962). In addition “[t]he trier is entitled, in fact bound to consider the evidence as a whole, and, in law as in life, the effect of this generally is much greater than the sum of the parts.” United States v. Bottone, 365 F.2d 389, 392 (2d Cir.), cert. denied, 385 U.S. 974, 87 S.Ct. 514, 17 L.Ed.2d 437 (1966) (where the aggregate circumstances were deemed sufficient to prove knowledge). Moreover, “[e]ach of the three episodes gained col- or from each of the others.” United States v. Monica, 295 F.2d 400, 401 (2d Cir. 1961), cert. denied, 368 U.S. 953, 82 S.Ct. 395, 7 L.Ed.2d 386 (1962).

Applying the foregoing principles here, the evidence was more than ample to support the conclusion that Staires, Cavallaro and Pulver were each active participants in the scheme to conceal and dismantle late model stolen automobiles. Staires was observed in the salvage area when all three of the stolen cars were secreted there. He was seen talking to Pulver on the evening of December 15 after Pulver had driven the red Ford behind the Salvage building. On December 16 he was seen carrying a “car-type radio” and was in the rear of the truck which contained the dismantled red Ford “nose.” The jury was entitled to infer that the radio and “nose” came from the just-dismantled stolen Ford station wagon. On December 17 Staires, with Pulver, “drove through the lot in the manner that a gold Pontiac had gone, through the gate and behind the Salvage building.” On December 27 Staires was observed carrying a yellow “Cutty Sark” box matching the description of the box that, according to the testimony of the owner of the stolen Cadillac, had been in the trunk of his ear at the time when it was stolen.

Cavallaro was observed next to the partially dismantled stolen Cadillac at the moment of the arrests on December 27. In addition, on December 16, he was observed walking back and forth from the House of Buys to the Salvage building during the period when the dismantled red Ford was still lodged on the premises.

As to Pulver, he was observed on the premises on all of the pertinent dates, December 15, 16, 17 and 27. He was there with Wisniewski when both the Ford and the Cadillac were received. At the close of business on December 15 he walked out of the House of Buys with Wisniewski, Novak and Benoit and after talking with Wisniewski he drove the stolen Ford through a tortuous route to a spot near a set of junk cars, returning to the House of Buys. Then at 6:11 P. M., when it was dark, he exited the House of Buys, entered the Ford and drove it through the junk yard into the back of the Salvage area where it was parked out of sight. At that time there were “reflections” from the back of the Salvage building from which the jury might infer that a torch was being used. On December 16, after the Ford had been cut up, he was seen with Wisniew-ski and Staires as Wisniewski was directing operations in the yard. On December 17 he and Staires were seen driving to the rear of the Salvage building shortly after the gold Pontiac had been secreted there and on December 27 Pul-ver was seen with Wisniewski, Staires and Camillo as the stolen Cadillac was delivered to the premises.

From all of the foregoing, the jury could infer beyond a reasonable doubt that these three defendants (Staires, Cavallaro and Pulver) were guilty as charged.

Likewise without merit is the assertion by Staires, Pulver and Cavallaro that Judge Croake’s charge on “aiding and abetting” did not adequately instruct the jury as to the necessity for proving actual participation on their part, see United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938); Nye & Nissen v. United States, 336 U.S. 613, 618-619, 69 S.Ct. 766, 93 L.Ed. 919 (1949). After instructing that for aiding and abetting “the guilt of a particular accused may be established without proof that he personally did every act constituting the offense charged,” and quoting from the text of 18 U.S.C. §§ 2(a) and (b), Judge Croake continued: “Every person who thus wilfully participates in the commission of a crime may be found guilty of the offense” (emphasis added). Thereupon he emphasized the need for knowledge and intent. However in view of his earlier reference to the necessity for proving willful participation, the emphasis on knowledge and intent was not error, especially since it was given in response to a specific request of defense counsel, whose defense strategy was based principally upon his contention that the government had failed to prove guilty knowledge.

A more serious issue is the contention of Staires, Cavallaro and Pulver that they were denied their Sixth Amendment right to effective assistance of counsel because their trial counsel, Warren Luedecker, represented all defendants below. From this common representation they argue that his ability to devote his full and undivided professional skill to the defense of each of them was hampered because of possible conflicting interests of his clients. The gravamen of the argument is that Luedeeker' had represented Wisniewski in the past and that while all of the defendants had retained Luedecker, the entire fee had been paid by Wisniewski; Luedecker would not, therefore, develop evidence disassociating the other defendants from Wisniewski. The result, it is asserted, was that at trial a defense was selected in which appellants were required to close ranks and present a united front, contending that they had been running a large legitimate junk yard and were the unwitting victims of two men who dealt in stolen cars.

“The rule in this circuit is that some specific instance of prejudice, some real conflict of interest, resulting from a joint representation must be shown to exist before it can be said that an appellant has been denied the effective assistance of counsel.” United States v. Lovano, 420 F.2d 769, 773 (2d Cir.), cert. denied, 397 U.S. 1071, 90 S.Ct. 1515, 25 L.Ed.2d 694 (1970). See also Morgan v. United States, 396 F.2d 110, 114 (2d Cir.1968). Since neither Staires nor Cavallaro points to facts indicating that they suffered any prejudice, their claim can be rejected without further discussion.

Pulver contends on appeal that Lue-decker failed adequately to bring out the weakness of the government’s case against him and to develop an individual defense that might have exonerated him individually. He asserts that since he had no prior record, he should have been called to testify in his own defense that he was present on the premises merely looking for used car parts, that he never was employed or had any business connections with Wisniewski other than as a customer, that he drove the red Ford merely as a favor to Wisniewski and that he had no knowledge of any illegal activity. In addition, Pulver contends that the proceedings below did not adequately screen potential conflicts and that Pulver was not adequately apprised of the dangers of a possible conflict.

We are not here dealing with negligence on the part of the trial judge or defense counsel in failing to inquire into the possibility of a conflict of interest. On the contrary, from the very outset both the court and the government evidenced a keen sensitivity to the subject and repeatedly sought to ferret out from the defendants and their retained common counsel whether there were facts or separate defenses indicating the necessity for separate representation. On December 27, 1971, at a preliminary hearing, Magistrate Latimer drew the attention of the defendants to the question of whether there was a conflict of interest that might render separate representation necessary. In response all defendants indicated satisfaction with Mr. Luedecker’s joint representation of them. On February 24, 1972, Luedecker appeared on behalf of the defendants to enter pleas of not guilty. At the government’s suggestion, Judge Newman expressed concern about a conflict, leaving to defense counsel, at least initially, the burden “to satisfy himself and his clients that, in undertaking to represent all nine defendants, no question of inconsistent defenses or any other related matter comes up.” Luedecker replied that he had advised the defendants of the problem stating “I envision no conflict. And in good conscience, if there is a conflict I will so advise the accused. . . .” Luedecker later added that “I have nine accused. I have to evaluate each case independently of the other.”

On April 3, 1972, Judge Timbers, before whom the case was originally scheduled to be tried, inquired on his own initiative about any possible conflict of interest. Luedecker informed the court in the defendants’ presence that on several occasions he had informed the defendants of a possible conflict of interest and that they had a right to counsel of their choosing, whether privately retained or court appointed. Judge Timbers then individually asked the defendants whether they understood what Lue-decker had said and whether they still wanted him as their attorney. Each defendant individually answered in the affirmative.

Had there not been such repeated searching inquiries by the court into the question of potential conflict of interest, followed by statements both by the defendants’ counsel and by the defendants themselves that no such conflict existed, we might, in view of the defendant Pulver’s post-trial contentions, have remanded the case for a hearing on the issue, as was done in Morgan v. United States, 396 F.2d 110, 114 (2d Cir.1968), where no such earlier inquiry had been made by the court. But the very fact of such repeated inquiries militates against such a course. Pulver was no moron. He had attended college for two years and had served in the Army. Both the existence and the significance of any possible conflict of interest between himself and the other defendants, had one existed, should have been apparent to him, especially after his attention was repeatedly drawn to the possibility of conflict.

From the outset each defendant was virtually forced to consider whether he might have a position sufficiently different from that of the others to enable him to contend and prove that, regardless what the others might have known, he was unaware that the three ears had been stolen. Any such uniqueness in one defendant’s position would undoubtedly have been exploited to the hilt. But if the position of each on the key question of guilty knowledge was substantially the same as that of the others, as apparently was the case, each might stand a better chance of acquittal by joining in one monolithic claim of ignorance than by riding off in different directions.

In the face of repeated judicial inquiries into the subject of any possible conflict of interest, we cannot assume that the defendants’ legal counsel, a reputable lawyer experienced in the trial of criminal cases, falsely advised the court that no conflict of interest existed. Nor can we assume that he would have sacrificed one of the defendant’s chances of acquittal to those of another. In stating that he was required “to evaluate each case independently of the other,” he recognized the necessity of weighing carefully, among other things, the advisability of having one or more of the defendants present affirmative evidence of his lack of guilty knowledge. In resolving that issue he could not, consistently with his duties as a member of the court, consciously permit his client to commit perjury. Furthermore he could not overlook the fact that presentation of such proof might be fraught with serious risks, including the danger that the defendant, if he took the stand, might be confronted with incriminatory evidence of his own knowing involvement. Thus, although Pulver might have taken the stand and denied guilty knowledge, he might also have faced a blistering cross-examination.

When a trial culminates in a verdict of guilty the temptation is great for a defendant, armed with hindsight, to claim that his lawyer’s strategy in not permitting him to run the cross-examination gauntlet was motivated by a conflict of interest. We do not say that such belated assertions are to be ignored. Each case must, of course, be viewed on its own facts. However, in the absence of objective evidence of corroboratory circumstances, such post-trial claims must be viewed with some suspicion, especially when there has not been submitted a supporting affidavit of the attorney in accordance with the practice recommended in cases where clients belatedly raise a claim of ineffective assistance of counsel. Cf. United States v. Welton, 439 F.2d 824, 826 (2d Cir.), cert. denied, 404 U.S. 859, 92 S.Ct. 157, 30 L.Ed.2d 102 (1971); Korenfeld v. United States, 451 F.2d 770, 775 (2d Cir.1971), cert, denied, 406 U.S. 975, 92 S.Ct. 2425, 32 L.Ed.2d 675 (1972).

To permit a post hoc judicial inquiry into earlier privileged attorney-client communications whenever a defendant seeks to set aside his conviction on grounds of conflict of interest on the part of his lawyer would be virtually to outlaw joint representation, since the temptation to attack his counsel’s unsuccessful strategy would be too great for the disappointed client to resist, particularly when he stood to lose nothing by launching the attack. Such a per se rule conflicts with our statement in United States v. Armone, 363 F.2d 385, 406 (2d Cir.), cert. denied Viscardi v. United States, 385 U.S. 957, 87 S.Ct. 391, 17 L.Ed.2d 303,(1966), that the trial court’s “inquiry of counsel as to possible conflict of interests in this ease sufficed to protect any rights Viscardi (the appellant) may have had in the matter. The court must be allowed to accept an attorney’s representations in matters of this kind, at least absent unusual circumstances.” Absent objective proof we cannot assume that a lawyer representing more than one client would act in violation of the Code of Professional Responsibility, much less ignore the opportunity to introduce proof which might acquit one defendant but not the other. Indeed in Morgan v. United States, supra, relied upon by Pulver and Staires, we recognized (396 F.2d at p. 114) that “the trial judge should not be precluded from permitting [a] defendant to be represented by counsel for a co-defendant if counsel, with the consent of both defendants, agrees to do so and if the judge, after careful inquiry, is satisfied that no prejudice will result. Obviously, the trial judge, who is in a position to talk to the parties and to make such inquiry, both public and private, as may be necessary, should be given as free a hand as possible to deal with such situations.” We remanded for a hearing in that case because it was “unclear from the record why the court appointed Stein’s attorney to represent Morgan” and it appeared that the court may have been under an erroneous impression as to counsel’s prior representation of both defendants, no inquiry as to a possible conflict apparently having been made. No such uncertainty exists here, where thorough and repeated inquiries were made and the absence of conflict was assured.

In rejecting appellants’ conflict of interest claim, we, of course, do not disparage the importance of a defendant’s right to be represented by counsel possessing zealous and undivided regard for his client’s interests. See, e. g., Glasser v. United States, 315 U.S. 60, 67-76, 62 S.Ct. 457, 86 L.Ed. 680 (1942). However, “defendants who retain counsel also have a right of constitutional dimension to representation by counsel of their own choice. . . . ” United States v. Sheiner, 410 F.2d 337, 342 (2d Cir.1969).

Finding all of appellants’ contentions to be without merit, we affirm.

      . 18 U.S.C. § 2813 provides:
      “Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to be stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.”
      18 U.S.C. § 2 provides:
      “(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable as a principal.
      (b) Whoever wilfully causes an act to be done, which if directly performed by him or another, would be an offense against the United States is punishable as a principal.”

      . The indictment contained six counts. None of the appellants was named in Counts 4-6, which involved the transportation of stolen vehicles in violation of 18 U.S.C. §§ 2312 and 2.
      A ninth co-defendant, Clifford Johnson, was tried with the eight appellants, but a judgment of acquittal was entered at the close of the evidence with the government’s consent.
      A directed judgment of acquittal on Count 2 was entered as to defendant Cavallaro.

      . Judge Croake imposed prison sentences ranging from 6 to 30 months. Defendants Pulver and Novak, who were charged and convicted on all three counts, were each sentenced on Count 1 to a split sentence of six months, followed by a two-year probationary period. Sentence was suspended on Counts 2 and 3 and probation imposed concurrently with probation on Count 1. Defendants Camillo, Di-Federico, and Benoit each received the same sentence except that, since they had been charged and convicted on only two counts (DiFederico and Benoit on Counts 1 and 2, Camillo, Counts 1 and 3), their probation term was made concurrent with one count.
      Defendant Staires, who was charged and convicted on all three counts, was sentenced to imprisonment for a term of one year and six months, followed by concurrent terms of one year of probation on each of the other counts.
      Defendant Cavallaro, who was convicted on Counts 1 and 3 (he received a directed acquittal on Count 2, see note 2 supra), was sentenced to imprisonment for a period of two years and six months on Count 1, with a suspended sentence on Count 3.
      Defendant Wisniewski was sentenced to concurrent terms of two- years and six months on each count, to run consecutively to a prior five year sentence in another case which he was then serving. In addition, he was fined $15,000 ($5,000 on each count).

      . 18 U.8.C. § 3052 provides in pertinent part:
      “[T]he Director, Associate Director and agents of the Federal Bureau of Investigation of the Department of Justice may . . . make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States, if they have reasonable grounds to believe that the person arrested has committed or is committing such felony.”

      . The arrests were a joint effort of the F.B.I. and the local police who were acting pursuant to Connecticut General Statute § 6-49.

      . The relevant portion of the charge relating to “aiding and abetting” provided :
      “In a case where two or more persons are charged with the commission of a crime, the guilt of a particular accused may be established without proof that he personally did every act constituting the offense charged.
      “Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
      “Whoever wilfully causes an act to be done, which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
      “Every person who thus wilfully participates in the commission of a crime may be found guilty of the offense.
      “Obviously one cannot aid and abet in commission of a crime unless there is another who has committed the offense. One is guilty as an aider and abettor when he consciously shares in any criminal intent. One need not agree to or even know all details, minor or otherwise of a criminal transaction in order to aid and abet commission thereof. However, one must have knowledge. One must have knowledge of the essential elements of the offense, that is, that the vehicle named in a particular count of the indictment was stolen, and know that it was wilfully transported by a defendant or defendants from one state to another.”

      . “Mr. Luedecker: Of course, your Honor.
      “If I may, just for the record, your Honor: When the nine accused were arrested, I undertook to have all the accused bonded out or on their own recognizance. And at that time, unequivocally I told all the defendants that I would represent them at this stage of the proceeding, but I did not envision any conflict, and that I would continue to represent them; if a conflict developed at a later date, of course I would have to ask other accused to seek other counsel.
      “We had a preliminary hearing before Magistrate Latimer. And Magistrate Latimer raised the same issue; again asked me whether or not there was any conflict. I told him that at that stage of the proceeding I saw none.
      “He advised all the accused in the matter, of a possible conflict or whether or not there was any conflict; and I think that all the accused at that time indicated that they saw no conflict, that they wanted me to represent them, and that I would represent them; if a conflict developed at a later date, then of course I would have to advise them to seek other counsel.
      “As I stand here at this very moment, I envision no conflict. And in good conscience, if there is a conflict I will so advise the accused, and I may have to get out of numerous cases or some of the cases, and those accused would have to seek other counsel.”

      . “The Court: . . .
      “The one remaining matter that I wish to take up — and this is in the same case, United States against Wisniewski and others — again is a matter that I have raised of my own initiative, even though I understand it is a matter that has been inquiredrinto by Judge Newman on January 24 of this year, and prior thereto by United States Magistrate Latimer. And it is simply this: In view of the fact that — I believe it is nine named defendants are represented by one lawyer, Mr. Luedecker, I simply inquired, being new to the case, whether there was any question of a possible conflict of interest arising from the fact that more than one defendant is represented by the same lawyer.
      “And I have been informed that there is believed to be no basis for a conflict; and on the contrary, I am informed that both Mr. Luedecker and his clients are satisfied that he should represent them, that they want him to represent them, that they do not want other counsel either by their own selection or by court appointment to represent them; and therefore the case should go foward that way.
      “And I might say that, if that is the fact, that is entirely acceptable to me.
      “But out of an excess of caution, and in order to save time in connection with the actual trial of the case that will begin two weeks from today before Judge Croake, I of my own initiative do wish to raise this question in the presence of — I think all nine defendants are here seated in the front row, immediately behind their lawyer, Mr. Luedecker.
      “And I will suggest this procedure: I am simply going to ask Mr. Luedecker, who is the attorney of record for each of the defendants in this case, to state here in open court on the record, in the presence of the nine defendants, the facts as he understands them.
      “I will ask each of the nine gentlemen in the front row to listen carefully to what Mr. Luedecker says; because, when Mr. Luedecker finishes, I am going to ask each of you individually to stand up and, in effect, say whether you agree with Mr. Luedecker or not.
      “The purpose of this is not just a mechanical thing. It is an honest, genuine effort on the part of the Court to ascertain at this stage of the proceeding whether each defendant, knowing that he is being represented by the same lawyer who represents his eight co-defendants, is willing to have it that way and expresses that — whether he expresses that willingness, knowing that he has the right, if he wishes to insist upon having separate counsel retained by him or court-appointed by the Court to represent him.”

      . “Mr. Luedecker: If your Honor please, I would like the record to reflect that I have represented these nine accused, the nine named accused in the indictment, since on or about January 3 of 1972.
      “At that time, when I first undertook to represent the defendants, I advised them at that time as to what they could or couldn’t do. I asked them whether or not they wanted me to represent them.
      “And at that time, all unequivocally said that they wanted me to represent them in this matter.
      “I advised them specifically at that time that, representing multiple defendants, there was possibly a conflict of interest; I did not envision a conflict of interest at that time; and since there was no conflict, I did appear on behalf of the accused.
      “We subsequently, shortly thereafter, had a hearing before Magistrate Lati-mer. And at that time I think there were only seven of the nine accused, at that time. But it is my recollection at that time that Judge Latimer again asked whether or not there was a conflict of interest or whether or not there was a possible conflict of interest.
      “And in the presence of all the then accused, I told him I did not envision a conflict; if, however, conflict did arise at a later date, I would bring it to the attention of the Court, to the attention of the defendants, and perhaps some of the accused or all of the accused would have to seek other counsel.
      “The defendants were put to plea on or about January 24, 1972 before Judge Newman in New Haven. And at that time all the accused were present.
      “Judge Newman, or Mr. Byelas on behalf of the Government, again raised the question of a possible conflict of interest.
      “I expressed myself on the record at that time, that I had reviewed the matter with the accused, that I did not envision a conflict, and that, if a conflict did arise on a later date, I would proceed accordingly.
      “I also told the accused at that time that they had a right to counsel of their own choice, and that counsel of their own choice could either be other private counsel or court-appointed counsel, in the event that they qualified for court-appointed counsel.
      “Subsequent to appearing in New Haven, I conferred with the accused on other occasions. I have made it clear, on the subsequent occasions, they have at all times a right to counsel of their own choice.
      “I met with all the accused except Mr. Wisniewski last Friday. I again spent hours with the accused. And, among other things, at that time I again told them among other rights they had a right to counsel of their own choosing, whether it be private or court-appointed ; if, however, they elected to proceed with me, I would be pleased to proceed on their behalf.
      “I talked to the accused again this morning, except as to the accused Mr. Wisniewski, and they again expressed— withdrawn. They again indicated they understood they had a right to private or public counsel of their own choice, but they elected to proceed, my representing all the accused in this ease.”

      . “The Court. Perhaps you can just step forward.
      “And I will ask each of the other defendants please to listen, because it will save a little time if I simply ask hereafter if you have heard the question put to Mr. Wisniewski, and what is your answer.
      “My question is as simple as possible, Mr. Wisniewski: First, have you fully heard and understood what your lawyer, Mr. Luedecker, has just said to the Court?
      “Defendant Wisniewski: Yes, I did, sir.
      “The Court: And on the basis of Mr. Luedecker’s statement to the Court, are you willing to have this case proceed, with Mr. Luedecker representing your eight co-defendants as well as yourself?
      “Defendant Wisniewski: That I am, sir.
      * * * * *
      “The Court: Mr. Pulver, is your full name Jeffrey L. Pulver?
      “Defendant Pulver: Yes, your Hon- or.
      “The Court: Have you heard and fully understood what your lawyer, Mr. Luedecker, has just stated here in open court on the record with respect to the matter of his representing you and the other eight co-defendants?
      “Defendant Pulver: Yes, your Hon- or.

        “The Court: On the basis of Mr. Luedecker’s statement to the Court, are you willing that the case should proceed to trial with Mr. Luedecker repre-seating your eight co-defendants as well as yourself?
      “Defendant Pulver: Yes, your Hon- or.”


author: WILLIAM E. DOYLE, Circuit Judge.

text:
    Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. YELLOWSTONE PARK LINES, INC., a corporation, and Yellowstone Park Company, a corporation, Defendants-Appellees.
    No. 72-1591.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted March 29, 1973.
    Decided May 10, 1973.

      Donald S. Shire, Atty., U. S. Dept, of Labor (Alfred G. Albert, Acting Sol. of Labor, Carin Ann Clauss, Associate Sol., John K. Light, Atty., U. S. Dept, of Labor, and Harper Barnes, Regional Sol., on the brief), for plaintiff-appellant.
    Douglas Foster, New York City (Love-joy, Wasson, Lundgren & Ashton, New York City, Redle, Yonkee & Arney, Sheridan, Wyo., of counsel; Lawrence A. Yonkee, Sheridan, Wyo., on the brief), for defendants-appellees.
    Before BREITENSTEIN, Circuit Judge, DURFEE, Judge, Court of Claims, and DOYLE, Circuit Judge.

       Sitting by designation.

   WILLIAM E. DOYLE, Circuit Judge.

This is an appeal from a judgment rendered by the United States District Court for the District of Wyoming denying the petition of the Secretary of Labor for an injunction against Yellowstone Park Lines, Inc. and Yellowstone Park Company from violating the minimum wage and record keeping requirements of the Fair Labor Standards Act. Plaintiff sought a judicial determination that the Act applied to the numerous employees of the Company who were working in Yellowstone National Park. Jurisdiction was founded upon 29 U.S.C. § 217 and 28 U.S.C. §§ 1337 and 1345. The trial court ruled that these employee relationships were exempt on the basis that all of the operations of Yellowstone Park Lines, Inc. and Yellowstone Park Company constituted a single establishment and as such were exempt under 29 U.S.C. § 213(a)(3), the employees being “employed by an establishment which is an amusement or recreational establishment.”

Based on the geographic separation of the various enterprises, the Secretary maintained that there was not a single establishment but, rather, a number of separate and distinct establishments.

The parties agreed that if each physically separate facility or location operated by defendants constituted a single establishment, the Secretary would be entitled to an injunction for violation of the Act. On the other hand, the parties agreed that if all Company operations in Yellowstone National Park constituted a single establishment, the decision should be that the defendants are exempt.

Summary judgment motions were filed by both sides, and following arguments and factual presentations in the form of affidavits, the judgment was in favor of the defendants.

Yellowstone Park Company is a Delaware corporation which owns and operates tourist facilities in Yellowstone National Park. It has a contract with the Secretary of the Interior which was first entered into in 1936 and was renewed again in 1966 for an additional term of 30 years.

The Company’s concessions include hotels, inns, lodges, cabins and restaurants. These are located at widely separated places including Mammoth, Hot Springs, Old Faithful, Yellowstone Lake and Canyon Village. The Company facilities at Hot Springs are located some 51 miles from the facilities at Old Faithful, whereas the facilities at West Thumb near Yellowstone Lake are 68 miles from Mammoth, and the facilities at Roosevelt Lodge are 60 miles from Old Faithful, and were shown to be 56 miles from West Thumb.

Wide variations in the various areas are shown — different types of scenery and different formations including canyons and mountain streams, lakes and geysers. There are marked differences in the various areas in terms of size and individuality. The recreational facilities also vary from one area to another as do the hotel facilities.

Ordinarily employees are primarily attached to one facility, that at which they are working. They are supervised by the manager of that particular facility who has his own day to day standards. The accounting methods are set up so as to reveal whether each individual unit makes a profit.

Two classes of employees serve more than one facility. One group includes maids, maintenance personnel and boiler room operators, who work at more than one establishment. The other group is made up of those who work mainly at one facility, but performing work which benefits another. These are employees who work in the central accounting office, manager’s office, reservations, advertising and promotion, laundries, print shop, personnel office, warehouse, garage, central fire watch office and ice manufacturing plant.

The manager’s office, central reservations, advertising and promotion are located in the summer at Mammoth and the rest of the year at Gardiner. These offices serve each of the Company’s facilities. The laundries are operated at Mammoth Lake Lodge and Old Faithful Inn and each serves several different facilities from those locations. The print shop is located at Mammoth, but serves each of the Company facilities in the Park. The personnel office, the warehouse and garage are all located in Gar-diner and serve all of the Company locations and facilities.

The facilities operated by the Company are located at the major scenic places and tourist attractions in the Park, including Old Faithful Geyser, Mammoth Hot Springs, Yellowstone Lake and the Grand Canyon of Yellowstone. At Old Faithful there are several lodges including Old Faithful Inn, Old Faithful Lodge and Old Faithful Campers Cabins. At Yellowstone Lake are the Lake Hotel, Lake Lodge and Lake Hotel Cabins. All of these facilities are advertised in one brochure. The Company also maintains buses for transporting tourists from one area to another. The various facilities have a central management which includes a number of department directors. Policy decisions are made by the management and are applicable to all of the facilities.

The statutory provision which the Company claims furnishes it an exemption is § 213(a)(3) which provides an exemption for any employee employed by an amusement or recreational establishment which meets certain seasonal tests. Undoubtedly the enterprise is carried on by the Company and its wholly-owned subsidiary, Yellowstone Park Lines, Inc., and is recreational in character.

The trial court made special findings in support of the motion for summary judgment and in these findings it described in detailed fashion the operation of the Yellowstone Park Company within the Yellowstone National Park pointing out that there is central management of the numerous facilities within the Park headed up by officers of the Company and a member of the so-called department directors such as director of marketing and sales, director of food and beverage and the director of lodging. According to the findings, some 2,289 people, mostly college students, were at the time in question employed by the Yellowstone Park Company.

The court pointed out that the controlling provision of the Fair Labor Standards Act is 29 U.S.C. § 213(a)(3) and said:

If Yellowstone Park Company qualifies as an amusement or recreational establishment within the meaning and for the purpose of that section, the Company is exempt from Sections 6 and 7 of the Act, 29 U.S.C. §§ 206 and 207, pertaining to minimum wages and maximum hours.

The court went on to hold that as a result of the integrated management of the Company it was a recreational establishment and concluded in its judgment:

After considering the pleadings, the interrogatories and answers thereto, the affidavits filed herein and exhibits attached thereto, the request for admissions and the stipulation filed by the parties herein wherein each of the parties agreed there is no dispute as to any genuine issue of fact, and now being fully advised in the premises, the Court finds that 29 U.S.C. Section 213(a)(3) exempts the defendants from the minimum wage and overtime provisions of said Act * * *

The exemption which we are now considering was provided in the Fair Labor Standards Act so as to allow recreational facilities to employ young people on a seasonal basis and not have to pay the relatively high minimum wages required by the Fair Labor Standards Act. Based on this legislative purpose the Company maintains that the provision should be given a liberal construction so as to carry out this basic purpose. This is, however, contrary to accepted rules of construction which call for broadly construing coverage provisions and narrowly construing the exemption provisions. Also, it runs contrary to the decisions of the Supreme Court and at least one decision of this court.

An early Supreme Court case, Phillips, Inc. v. Walling, 324 U.S. 490, 65 S.Ct. 807, 89 L.Ed. 1095 (1945), considered the term “retail establishment” in connection with an exemption provided for in § 13(a)(2). Involved in the Phillips case was a chain enterprise consisting of 49 grocery stores together with a central warehouse and office building. It was argued in that case, much in the same manner as it is argued here, that the numerous stores, the warehouse and the office building were a single establishment so as to bring the entire enterprise within the exemption. This integration argument was, however, rejected by the Supreme Court which held that Congress used the word “establishment” to mean a distinct physical place of business rather than an integrated business or enterprise. Each unit was, therefore, held to be a separate establishment.

Much the same result was reached in Mitchell v. Bekins Van & Storage Co., 352 U.S. 1027, 77 S.Ct. 593, 1 L.Ed.2d 589 (1957), wherein it was held that the exemption did not apply to physically separate warehouses even though they were operated as a single economic unit. Once again the emphasis was placed on the term “establishment” and its meaning of a single physically separate place of business.

Finally, this court in Shultz v. Adair’s Cafeterias, Inc., 420 F.2d 390 (10th Cir. 1969), had before it a case involving six cafeterias having a central bakery. The employer argued that the establishment as a whole was entitled to an exemption and the district court agreed. This decision was, however, reversed, our court ruling that the district court’s determination had failed to follow the interpretation which had been given to the term “retail establishment” by the Supreme Court in the Phillips, Inc. and Mitchell cases. In reversing the district court it was said:

The lower court refused to test the Adair enterprise, for exemption, on an individual establishment basis. Instead, all businesses, including the bakery, were viewed together as being proprietarily united and functionally integrated, and physical separation was considered immaterial. This proposition runs directly contrary to the letter and spirit of the Fair Labor Standards Act and does not comport with the cases interpreting that law.

420 F.2d at 394.

After discussing the applicability of the Phillips, Inc. and Mitchell rulings this court continued:

The exemption in § 213(a)(2) has a limited reach, touching only those retail or service establishments as are comparable to the local corner grocery store, local drug store or local department store, which sells directly to the ultimate consumer. Prosperous retail businesses eventually lose their identity as establishments exempt from the Act. It may occur through an increased volume of interstate sales or, as here, by physically serving a nonexempt establishment. A company operating numerous food stores cannot include as a part of its retail business its candy kitchens. Fred Wolferman, Inc. v. Gustafson, 169 F.2d 759 (8th Cir. 1948). The operator of sandwich counters cannot include as retail its commissary where sandwiches are prepared. Armstrong Co. v. Walling, 161 F.2d 515 (1st Cir. 1947). Similarly, a restaurant-cafeteria chain may not include its bakery as part of its retail establishments.

420 F.2d at 394-395.

We view Adair’s as being not only definitive of the term “establishment”, but also as illustrating the broad coverage —narrow exemption approach to this Act.

We recognize that there are differences between the so-called recreational exemption which we are now considering and the retail establishment exemption considered in Adair’s Cafeterias and in Phillips, Inc. as well as Mitchell. Much of the law which deals with the retail establishment exemption is concerned with the difference between retail and wholesale activities and with the question whether the particular retail unit is engaged in local business or interstate commerce. None of this, however, affects the basic issue presented to us which is whether the term “establishment” as used in § 13(a)(3) is to be judged in the same light as that term is judged under § 13(a)(2) and as in Phillips, Inc., Mitchell and Adair’s. We are of the opinion that the distances and the heterogeneous nature of the areas of interest do not lend to the Yellowstone Park enterprises being considered as one integrated unit subject to exemption under § 13(a)(3). Thus, we must reverse the trial court’s judgment holding that all of Yellowstone Park is to be considered as a single integrated recreational area.

The parties have stipulated that the plaintiff is entitled to an injunction restraining future violation of the Act if it prevails on the question of what constitutes an establishment for purposes of § 13(a)(3) of the Act. Therefore, having resolved this issue in favor of the plaintiff-appellant, it follows that the cause must be reversed and an injunction is to be granted and entered in favor of the plaintiff and against the defendants.

Inasmuch as a question existed at the time that this matter was orally argued as to the scope of the employees exempted and the employees covered, clarification was requested. Since the cause was argued there has been an exchange of letters and in essence the employees exempted are those who are employed by an exempt establishment. Those who are covered are, generally speaking, those central employees who serve several or all of the Company’s establishments at various locations throughout the Park. In its clarification letter plaintiff-appellant adds:

We concede the applicability of the exemption to all of defendants’ employees in the Park, including maids and boiler room workers, except central employees who perform functions which serve several, or all, of the company’s establishments at the various locations throughout the Park. Among those not within the exemption are the following: (1) central accounting office employees (R. 39, 46-48); (2) manager’s office employees (R. 48-50); (3) reservations office employees (R. 48-50); (4) advertising and promotion office employees (R. 48-50); (5) laundry employees (R. 40, 51-52); (6) print shop employees (40, 52-53); (7) personnel office employees (R. 40, 54-55); (8) warehouse employees (R. 40, 54-55); (9) garage employees (R. 40, 54-55); (10) ice manufacturing plant employees (R. 29, 40); (11) central fire watch employees (R. 56-57); and (12) central maintenance and repair workers who perform functions which serve several or all of the company’s establishments in the Park (R. 51, 60-61). Since these central employees are not employed by any specific establishment, but rather by the entire enterprise, they would be exempt only if all of the defendants’ facilities throughout the Park constitute a single “establishment.”

In our view the concession contained in the plaintiff-appellant’s letter is entirely consistent with the view which we have taken as to the meaning of the term “establishment.”

Accordingly, the judgment of the district court is reversed, and the cause is remanded with directions to the district court to enter an injunction in accordance with the views expressed above.

      . 29 U.S.C. § 213 provides in part:
      (a) The provisions of sections 206 and 207 of this title shall not apply with respect to—
      * * * $ *
      (3) any employee employed by an establishment which is an amusement or recreational establishment, if (A) it does not operate for more than seven months in any calendar year, or (B) during the preceding calendar year, its average receipts for any six months of such year were not more than 33% per centum of its average receipts for the other six months of such year; or * * * * *
      It is undisputed that defendants meet the seasonal requirements of § 213(a)(3).


author: McWILLIAMS, Circuit Judge.

text:
    Anthony Earl WRONE, Appellant-Petitioner, v. Park J. ANDERSON, Warden, Oklahoma State Penitentiary, McAlester, Oklahoma, Appellee-Respondent.
    No. 72-1386.
    United States Court of Appeals, Tenth Circuit.
    April 30, 1973.
    George J. Duckworth, Denver, Colo., for appellant-petitioner.
    Paul Crowe, Asst. Atty. Gen. (Larry Derryberry, Atty. Gen., of Okl., on the brief), for appellee-respondent.
    Before SETH, McWILLIAMS and BARRETT, Circuit Judges.
   McWILLIAMS, Circuit Judge.

Wrone, presently an inmate in the Oklahoma State Penitentiary, brought an action under 28 U.S.C. § 2254 in the United States District Court for the Northern District of Oklahoma against Park J. Anderson, the Warden of the state penitentiary. Based on the allegations in Wrone’s petition, the trial court directed that an order to show cause be served on the respondent, and in due time the Attorney General of Oklahoma filed a response on behalf of the Warden. Based on such response and the exhibits attached thereto, the trial court denied the relief prayed for on the ground that there existed no federal constitutional question and dismissed the action. Wrone now appeals. We affirm.

Though the trial court held no evidentiary hearing, the essential facts are in nowise in dispute. On January 10, 1961, Wrone pleaded guilty1 to an Oklahoma state charge of larceny of narcotic drugs and was sentenced to a term of five years in the state penitentiary. The sentence thus imposed was suspended during good behavior under the provisions of 22 O.S. § 991.

On April 19, 1964, Wrone was indicted by a federal grand jury in the Western District of Oklahoma for a drug violation. Thereupon, and prior to his subsequent conviction in the federal court, application was made by the county attorney, in the state court where Wrone had previously received the suspended sentence, to revoke the suspended sentence, the application to revoke reciting that Wrone had been thus indicted and additionally that during the month of April 1964 had been observed by federal agents in the company of known criminals and persons using narcotics. This application to revoke was granted on June 25, 1964, without hearing, as such, with Wrone not being present and not having been previously served with any notice of proposed hearing.

As indicated, as of the time when Wrone’s suspended sentence was revoked, Wrone was in the custody of the federal authorities. Thereafter, he was convicted in the federal court and served a term in a federal penitentiary. A state detainer was placed on Wrone at the federal institution wherein he was then confined, and when he was thereafter released from the federal penitentiary on August 17, 1970, he was turned over to the Oklahoma authorities who placed him in the Oklahoma state penitentiary to begin serving the five year sentence above referred to.

On June 15, 1968, Wrone, while in federal custody, appealed the revocation of his suspended sentence, which appeal was denied by the Oklahoma Court of Criminal Appeals on January 29, 1969. Thereafter, Wrone sought state habeas corpus relief which, after hearing, was denied again by the Oklahoma Court of Criminal Appeals. Wrone v. Page, 481 P.2d 479 (Okl.Cr.App.1971). It was in this setting that Wrone turned to the federal courts for relief. As indicated, his action was dismissed by the trial court and Wrone now appeals that order of dismissal.

By way of additional background, 22 O.S. § 992, which was in effect at the time Wrone’s suspended sentence was revoked, permitted a more or less summary revocation of a suspended sentence with no requirement that the defendant be personally present in court. ' That statute has since been repealed and was replaced by that which now appears as 22 O.S. § 991b, the latter statute providing for a hearing when application is made to revoke a suspended sentence. However, in Wrone v. Page, supra, it was held by the Oklahoma Court of Criminal Appeals that the procedural statute in effect in 1964, when Wrone’s suspended sentence was revoked, was controlling, rather than the subsequently enacted statute, which was held not to be given retroactive effect.

In this court Wrone argues that the revocation of his suspended sentence, without hearing and without notice to him so as to permit him to appear with counsel and contest the application by the county attorney to revoke, was unconstitutional under the provisions of the Sixth Amendment as applied to the states through the Fourteenth Amendment. In thus arguing, counsel relies primarily upon Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), and McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968). In Mempa, it was held that the Constitution did require that counsel be afforded a defendant previously convicted of a felony in a state post-trial proceeding for revocation of his probation and the imposition of a sentence which had been previously deferred. In McConnell, it was held that the rule of Mempa should be given retroactive application.

We deem Mempa and McConnell to be inapplicable to the present controversy. Those cases were concerned with defendants who had not been sentenced, as such, but placed on probation. The rationale of those eases was that the imposition of a sentence was a critical stage in any criminal proceeding and as such was subject to the Sixth Amendment as applied to the several states through the due process clause of the Fourteenth Amendment.

Though the revocation of Wrone’s suspended sentence may bear some resemblance to the revocation of Mempa’s probation, there is one very important difference between the facts in the instant case and those in Mempa. In the instant case, sentence was in fact imposed on Wrone and the sentence thus imposed was thereafter suspended, conditioned on good behavior. In Mempa, pursuant to statute sentence was deferred at the time the defendant was placed on probation, and the hearing at which it was held that Mempa had a right to counsel was one where probation was revoked and sentence imposed. In our view, the revocation of the suspended sentence imposed on Wrone is not governed by Mempa and McConnell. Rather, the suspended sentence here involved is more akin to parole, than probation, for the reason that in the ease of a parolee a sentence has already been previously imposed, and similarly a sentence, though suspended, was imposed against Wrone some three years prior to its revocation. Accordingly, we deem the instant case to be governed by the case law relating to parole, rather than the case law relating to probation. In this particular regard we have heretofore held in Earnest v. Willingham, 406 F.2d 681 (10th Cir. 1969), that Mempa dealt with probation, and did not apply to a parole revocation.

We have previously held that a parolee, i. e., one who has been sentenced and later released on parole, whose parole is about to be revoked, is entitled under the Constitution to be afforded a hearing when his parole is in Jeopardy, to be personally present at such hearing, to be informed in advance of the charges, and the like. Alverez v. Turner, 422 F.2d 214 (10th Cir. 1970), cert. denied sub nom. McDorman v. Turner, 399 U.S. 916, 90 S.Ct. 2221, 26 L.Ed.2d 574 (1970). Subsequent to Alverez, the Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), also held that under the Constitution a parolee is entitled to at least an informal hearing to give assurance that the finding of a parole violation is based on facts, though a parolee is not entitled to the full panoply of rights due a defendant in a criminal proceeding.

So, then, even though Wrone’s status be akin to that of a parolee, under Alverez, as well as Morrissey, of course, Wrone would still be entitled to at least an informal hearing before his suspended sentence could be revoked, if the rule of Alverez and Morrissey is given retroactive application. In this regard we find nothing in Morrissey to indicate that the rule of Morrissey is to be given retroactive effect. However, we have specifically held that our pronouncement in Alverez is not to be retroactively applied. Murray v. Page, 429 F.2d 1359 (10th Cir. 1970), cert. denied, 402 U.S. 934, 91 S.Ct. 1530, 28 L.Ed.2d 869 (1971).

In Murray, we recognized that the Oklahoma courts had declined to give retroactive effect to the statutory change whereby a parolee was thereafter to be afforded a hearing before the parole was revoked and held that such afforded the petitioner no right to federal relief. Similarly, in that case we declined, in effect, to give retroactive effect to our holding in Alverez. Accordingly, then, the summary revocation of Wrone’s suspended sentence in 1964 in the Oklahoma state courts was in accord with the Oklahoma statutes then in effect, and under Murray, our pronouncement in Alverez would not in anywise affect the validity of the revocation of Wrone’s suspended sentence.

We recognize that in a sense the instant case is somewhat academic in nature. Wrone’s sentence was suspended on good behavior, and the statute then in effect permitted a revocation thereof if the “person so released has been guilty of a violation of any law after his release * * It is true that in the instant case Wrone’s suspended sentence in the state court was revoked before he was subsequently convicted in federal court. It is equally true that Wrone was in fact convicted in federal court subsequent to the imposition of a suspended sentence in the state court. This is not in dispute. So, if Wrone had prevailed in this court he would not be entitled to release. Rather, the matter would merely be remanded to the trial court with direction that it afford the state court opportunity to hold a hearing on the application to revoke Wrone’s suspended sentence. And at such hearing the only issue would be whether Wrone in fact suffered a federal conviction subsequent to the imposition of his suspended sentence, for such subsequent conviction, if true, is without doubt sufficient grounds to revoke a suspended sentence. That Wrone suffered such subsequent conviction is admitted. It is for this reason that we say the controversy in the present case is more imaginary than real.

Judgment affirmed.