author: SETH, Circuit Judge.

text:
    W. F. WHITFIELD, Appellee, v. Nick GANGAS, Appellant.
    No. 74-1026.
    United States Court of Appeals, Tenth Circuit.
    Argued Aug. 23, 1974.
    Decided Dec. 9, 1974.

      Murray Cohen of Cohen & Pluess, Oklahoma City, Okl., for appellant.
    William D. Curlee, Oklahoma City, Okl. (Lytle Soule & Emery, Oklahoma City, Okl., of counsel, with him on the Brief), for appellee.
    Before HILL and SETH, Circuit Judges.
   SETH, Circuit Judge.

The plaintiff, W. F. Whitfield, brought this diversity action against the defendant, Nick Gangas, to recover money due under an instrument which may be loosely described as a promissory note. Summary judgment was entered for the plaintiff, and the defendant has taken this appeal.

The parties owned the stock in a corporation known as Gangas-Whitfield Volkswagen, Inc., which operated a car dealership in Oklahoma City. The parties entered into a contract whereby the defendant agreed to sell his stock interest in the corporation, together with other assets, to plaintiff for an agreed consideration. The portion of the purchase price for the defendant’s stock in the dealership corporation was subject to adjustment downward in the event the corporate net worth fell below a stated amount as determined by a limited audit to be made by Arthur Andersen & Co. At the time the sale was closed, as hereinafter described, only a tentative audit report was available.

On the closing date the parties signed a comprehensive Memorandum of Closing, as well as the “note” in issue. This memorandum, among other things, made adjustments in the purchase price on the basis of the tentative audit which reflected a downward revision of corporate net worth to a negative figure. This reduced the purchase price for all items sold, and by reason of the provision that a stated dollar amount of the purchase price was to be disbursed by the plaintiff-purchaser on closing to creditors of defendant and of the corporation, the defendant instead of receiving a portion of the purchase price ended up owing the buyer the face amount of the “note.” This turnaround, and the amount were recited and included also in the Memorandum of Closing. Defendant, in expectation of an improved position through the finalization of the audit, added to the “note” a statement that the principal amount thereof would be subject to a further adjustment “. . . per memorandum of closing this date.” The audit was finalized and it indicated that instead of the face amount of the note, $59,105.15, defendant owed $76,149.65. This was recovered below plus interest and attorney fees.

The defendant admits he signed the “note,” and that it is unpaid. He asserted several defenses including economic duress causing him to sign the “note” and the Memorandum of Closing. He also urges that the audit was not made in accord with good nor prior accounting practice.

Plaintiff’s motion for summary judgment was granted. The trial court had before it, in addition to the pleadings, only the deposition of the defendant and briefs. The defendant submitted no additional affidavits or depositions, and made no showing of specific facts as contemplated by Rule 56, Fed.R.Civ.P., but instead relied on his pleadings and his brief.

In reviewing a summary judgment, we must determine whether the pleadings, depositions, affidavits, exhibits, and admissions taken together establish the existence of issues of material fact. Machinery Center, Inc. v. Anchor National Life Ins. Co., 434 F.2d 1 (10th Cir.). Allegations in the pleadings may be overcome by discovery. Shehi v. Southwestern Bell Telephone Co., 382 F.2d 627 (10th Cir.). A party opposing a motion for summary judgment may not rest on mere allegations in his pleadings, but must respond with specific facts showing a genuine issue for trial. Gates v. Ford Motor Co., 494 F.2d 458 (10th Cir.). General assertions and conclusionary statements are not enough. Reid v. International Union, United A., A. & A. Imp. Wkrs., 479 F.2d 517 (10th Cir.).

The admitted execution of the “note” and the Memorandum of Closing with its complete recitations and approval of the audit must foreclose consideration of the points raised by the defendant except as to duress he asserts accompanied the closing of the sale.

The circumstances surrounding the closing and the Memorandum of Closing are significant. The defendant at the time was being very hard pressed by his creditors and those of the corporation. He had told them they would be paid out of the proceeds of the sale, and with this expectation they were present at the closing negotiations which apparently lasted four or five hours at the office of plaintiff. The creditors were there determined to get their money, and were anxious that the sale be closed and the proceeds be disbursed to them. The plaintiff was also urging that the matter be closed and that the “note" be signed before he would make the disbursements for the creditors. It was in these circumstances that the closing was negotiated and the instruments signed.

The allegations of duress in the pleadings must be examined in light of the deposition of appellant Gangas. Bushman Construction Co. v. Air Force Academy Housing, Inc., 327 F.2d 481 (10th Cir.). At the taking of Gangas’ deposition, he was asked to detail his claims of duress. He cited the following conditions :

1. The business was in financial difficulty due to the ten per cent tax imposed on imported cars in August 1971 and the longshoremen’s strike which was in effect at that same time.

2. Some months before, plaintiff and a Mr. Jones who was a ten per cent shareholder in the coi'poration (defendant owned fifty per cent and plaintiff forty per cent) removed defendant as manager and reduced his salary from $3,000 to $1,000 per month. This action was taken in their capacity as directors.

3. Defendant owed the following sums: $78,217.57 to Fidelity National Bank (this was a corporate debt, personally guaranteed by defendant and plaintiff). $59,488.74 to Community National Bank (this was a corporate debt, also personally guaranteed by both parties). $56,084.00 to Fidelity National Bank (this was a personal debt). $28,770.34 to Jones & Pellow Oil Co. (this was a personal debt). The creditors had harassed Gangas and his wife for at least six months over the payment of these obligations. They had threatened to take everything he had, one had put a lien on his home, and bankruptcy threatened. These creditors were paid by disbursements made by plaintiff at the closing.

4. Plaintiff said that he would not pay the creditors unless defendant signed the Memorandum and the note. At the closing, plaintiff also threatened to shut down the business if defendant did not sign. This he could have done as direct- or with the cooperation of Jones, or by telling the bank creditors that he would not pay the corporate obligations since the sale of the company was not going to close. Without the sale, defendant and the company could not pay the debts owed to the banks.

Threats by creditors to force the business into involuntary bankruptcy are, of course, actions of third parties. Plaintiff, by his control of the board of directors, could have closed down the business at any time. Since this was action he could take legally, as was the other he threatened to take, it cannot constitute duress. NLRB v. Karp Metal Products Co., 134 F.2d 954 (2d Cir.); Sinclair Refining Co. v. Roberts, 201 Okl. 358, 206 P.2d 193. Thus the deposition of defendant shows that the action threatened to be taken by plaintiff was that which he could legally do and was not improper. We apply this standard as there are no Oklahoma cases on the issue. The trial judge applied this doctrine as the law of Oklahoma and, under our decisions and practice, we accept this determination under such circumstances, if not clearly wrong.

The other “threatened action” was the strong pressure on defendant which came from third parties — the creditors. These were manifestations of the economic-financial problems of defendant, and cannot constitute duress by plaintiff. See Furman v. Gulf Ins. Co., 152 F.2d 891 (8th Cir.).

Thus the record shows that there was no factual basis whereby defendant can assert duress as a defense to the note nor to the Memorandum of Closing. The memorandum considers and provides for the other matters the plaintiff seeks to raise by way of defense including the nature of the audit, the setoff claim, and performance by plaintiff of piuor agreements. The defendant acknowledged that he knew no additional facts relative to the sale at the time of his deposition that he did not know at the time of closing.

There remained no material factual issues, and the granting of summary judgment was proper.

Affirmed.


source: Caselaw Access Project

author: McCREE, Circuit Judge.

license: Public Domain

text:
    Sidney AXELROD and Andrea Axelrod, Petitioners-Appellees, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant.
    No. 74-1511.
    United States Court of Appeals, Sixth Circuit.
    Dec. 17, 1974.
    Rehearing Denied Jan. 17, 1975.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Bennet Hollander, Robert G. Burt, Richard Roberts, Gilbert E. Andrews, Tax Div., Dept, of Justice, Meade Whitaker, Chief Counsel, I.R.S., Washington, D. C., for respondent-appellant.
    Sidney Axelrod, Columbus, Ohio, pro se.
    Robert E. Glaser, Arter & Hadden, Carlton Schnell, Cleveland, Ohio, for petitioners-appellees.
    Before PHILLIPS, Chief Judge, and PECK and McCREE, Circuit Judges.
   McCREE, Circuit Judge.

This appeal requires us to define the relationship between the alternative capital gains tax provisions of section 1201(b) of the Internal Revenue Code of 1954, 26 U.S.C. § 1201(b), and the net operating loss carryback and carryover provisions of section 172 of the Code, 26 U.S.C. § 172. Specifically, we must determine whether “taxable income,” against which section 172 of the Internal Revenue Code requires a net operating loss carried back to an earlier year to be offset in determining whether there will be an excess to carry forward to other years comprehends only ordinary income and not income derived from capital gains accorded special treatment under the alternative method of tax computation permitted by section 1201(b).

In 1964, taxpayers had taxable income of $1,042,032.03, of which $4,999.20 was ordinary income and of which $1,037,-032.83 was a net long-term capital gain computed after the deduction for capital gains provided for by section 1202 of the Internal Revenue Code. In 1965 and in 1966 taxpayers received no taxable income. In 1967, however, taxpayers incurred a net operating loss of $114,627.75 and, by filing a claim for a refund, carried the loss back to their 1964 taxable year pursuant to section 172 of the Code. Taking into account the net operating loss incurred in 1967, taxpayers recomputed their tax liability for 1964 under both the “regular” method provided for by section 1 of the Code, 26 U.S.C. § 1, and under the “alternative” method provided for by section 1201(b). The computations are as follows:

“Alternative Method” (Sec, 1201)
Taxable Income (excluding Net Operating Loss deduction):
Ordinary income $ 4,999.20
Capital gains income 2,074,065.66
$2,079,064.86
LESS: Section 1202 deduction $1,037,032.83 $1,042,032.03
LESS: Carryback Net Operating Loss deduction from 1967 114,627.75
Taxable Income (Sec. 63(a)) $ 927,404.28
LESS: 50% of capital gains income See. 1201(b)(1)) 1,037,032.83
Balance
Partial tax on balance (Sec. 1201(b) (D) -0-
PLUS 25% tax on capital gains 518,516.41
Alternative Tax (1964 individual rates) $ 518,516.41
“Regular Method” (Sec. 1)
Taxable Income (excluding Net Operating Loss deduction):
Ordinary income $ 4,999.20
Capital gains income 2,074,065.66
$2,079,064.86
LESS: Section 1202 deduction $1,037,032.83 $1,042,032.03
LESS: Carryback Net Operating Loss deduction from 1967 114,627.75
Taxable Income (Sec. 63(a)) $ 927,404.28
Regular Tax (1964 Individual rates) $ 677,781.30

Because their tax liability under the alternative method was less than their tax liability under the regular method, taxpayers’ actual tax liability was, as required by section 1201(b) of the Code, determined by the alternative method.

The controversy before us arose when taxpayers received ordinary income of $14,785.71 and $17,308.90 in 1968 and in 1969 respectively and sought to carry over to those years a portion of the net operating loss incurred in 1967. They contended that since they recomputed their tax liability for 1964 under the alternative method, they were entitled to carry forward to 1968 and 1969 $109,-628.55, representing the amount by which their 1967 net operating loss exceeded ordinary income received in 1964. The Commissioner, however, disallowed any deduction in 1968 and 1969 on the ground that no excess remained that could be carried forward since, under section 172(b)(2) of the Code, the entire net operating loss had been used in determining taxpayers’ taxable income of $927,404.28, as the first step in computing tax liability under the alternative method. Accordingly, the Commissioner assessed deficiencies of $2,260.60 and $758.19 for the taxable years 1968 and 1969 respectively.

On appeal, the Tax Court held that no deficiencies existed for those years and, moreover, that taxpayers were entitled to refunds of $1,885.06 and $3,230.95 for those years. Axelrod v. Commissioner, 52 T.C.M. 885 (1973). This determination was based on its decision in Chartier Real Estate Co. v. Commissioner, 52 T.C. 346 (1969), aff’d per curiam, 428 F.2d 474 (1st Cir. 1970). In Chartier, a case involving a corporate taxpayer which computed its tax liability under the alternative method, the Tax Court held that to the extent that a net operating loss is not offset by ordinary income received in a year to which the loss could be carried back, it could be carried forward to a later taxable year under section 172(b)(2). In applying the same rule to individual taxpayers, the Tax Court explained that its interpretation

serves the basic Congressional policy of granting special favorable tax treatment to capital gains under section 1201(b) without requiring the forfeiture of deductions for net operating losses merely because such losses happen to have occurred within the statutory carryback or carryover period. The opinion preserves intact the Congressional intent to permit the offsetting of the business losses of lean years against the profit of lush years in those situations, described in section 1201(b), where capital gains — unrelated to prior or subsequent net operating losses — are the major factor in computation of tax liability.

This appeal is taken by the Commissioner from the determination of the Tax Court. The Commissioner contends that even though taxpayers computed their 1964 tax liabilty under the alternative method, their taxable income, as defined by the Code, and against which a net operating loss from other taxable years must be offset, exceeded their 1967 net operating loss carryback and that, accordingly, no portion of it remained to be carried forward to 1968 and 1969. Taxpayers concede that if they had computed their tax liability under the regular method, the 1967 net operating loss would have been totally offset by their taxable income, and no portion of it would be left to be carried forward to later taxable years. They argue, however, that by computing their tax liability under the alternative method, the net operating loss was offset only by ordinary income, and that to require them to include capital gain income in “taxable income,” against which the loss must be offset, deprives them of the benefits Congress intended to confer upon them when it enacted section 1201(b), the alternative capital gains tax provision. We disagree and reverse.

• Section 172, governing the treatment of net operating losses provides, in part, “The portion of such loss [net operating loss] which shall be carried to each of the other taxable years shall be the excess, if any, of the amount of such loss over the sum of the taxable income for each of the prior taxable years to which such loss may be carried.” 26 U.S.C. § 172(b)(2) (Emphasis added.)

Congress has defined “taxable income” in the case of individual taxpayers for the purposes of subtitle A of Chapter 1 of Title 26 of the United States Code, sections 1 through 1563 inclusive, as “gross income, minus the deductions allowed by this chapter, other than the standard deduction . . ..” Int.Rev. Code of 1954, § 63(a), 26 U.S.C. § 63(a). This is the meaning to be placed on “taxable income” unless expressly modified. In this case, the taxpayers’ gross income for 1964 was $2,079,064.86, of which $4,999.20 was ordinary income and of which $2,074,065.66 was net long-term capital gains. Had taxpayers recomputed their tax liability under the regular method, section 1202 would have permitted them a deduction of fifty percent of their net long-term capital gains leaving them with taxable income of $1,042,-032.03 before taking into account the net operating loss. Taxable income, so computed, would have exceeded the net operating loss, and no portion of the loss would have remained to be carried forward to other taxable years.

Taxpayers, however, computed their tax liability in accordance with the provisions of section 1201(b). Under this provision, taxable income is still defined as gross income minus the deductions permitted by the Code. The only difference between this method and the regular method lies in the way in which tax liability is computed. Under the alternative method, an individual’s tax liability is the sum of a partial tax imposed on taxable income reduced by 50 percent of the excess of the net long term capital gain over the short term capital loss plus an amount equal to 25 percent of the net long term capital gain over the short term capital loss. Taxable income is the same regardless of the method of computation even though the amount of tax due may be different. It follows, therefore, that whether taxpayers compute their tax liability under the regular or the alternative method, the 1967 net operating loss would be entirely offset by their taxable income for 1964.

As this opinion was being completed, we received from the Commissioner a copy of the recent decision in Mutual Assurance Society of Virginia Corp. v. Commissioner, 505 F.2d 128 (4th Cir. 1974). In that case, the Fourth Circuit, considering the tax liability of a corporate taxpayer which recomputed its tax liability under the alternative method after sustaining a net operating loss in a succeeding taxable year, held that such a loss must exceed taxable income, including capital gains as well as ordinary income, before a portion of it could be carried forward to other taxable years. In so holding, the court concluded that its determination was supported by the language of the statute, the relevant regulations, and the legislative history of section 172.

In addition to the reasons that persuaded both this court and the Fourth Circuit that a net operating loss carried back to an earlier taxable year must exceed taxable income including capital gains before a portion of it might be carried forward to succeeding taxable years, we observe that, in the case of a non-corporate taxpayer, Congress has provided that taxable income be redefined for the purpose of determining to what extent a net operating loss is offset against it. Section 172(b)(2) provides that the taxable income for a year to which taxpayers seek to carry back or forward any net operating loss should be computed in the ordinary manner “with the modifications specified in subsection (d) other than paragraphs (1), (4), and (6) thereof . . ..” One of these modifications provides that “the deduction for long-term capital gains provided by section 1202 shall not be allowed.” Int.Rev. Code of 1954, § 172(d)(2). The Tax Court did not consider the applicability of this modification in its computation of taxpayers’ tax liability; .and taxpayers contend that it applies only when tax liability is determined in accordance with the regular method provisions. We find no such limitation in section 172(b)(2) or section 172(d)(2), however, and hold that even if taxpayers compute their tax liability under the alternative method, the section 1202 deduction may not be taken for the purpose of determining the extent to which net operating loss is offset by taxable income. Therefore, for the purpose of section 172(b) taxpayers’ taxable income for 1964 was $2,079,064.86. Accordingly, taxpayers’ 1967 net operating loss did not exceed their taxable income for 1964, and they were not entitled to carry forward to 1968 and 1969 any portion of that loss.

This construction of section 172 is supported not only by its language but also by Treasury Regulations promulgated thereunder. These regulations are entitled to judicial deference. In United States v. Cartwright, 411 U.S. 546, 550, 93 S.Ct. 1713, 36 L.Ed.2d 528 (1973), the Supreme Court stated:

We recognize that this Court is not in the business of administering the tax laws of the Nation. Congress has delegated that task to the Secretary of the Treasury, 26 U.S.C. § 7805(a), and regulations promulgated under his authority, if found to “implement the congressional mandate in some reasonable manner,” must be upheld. United States v. Correll, 389 U.S. 299, 307 [, 88 S.Ct. 445, 449 L.Ed.2d 537] (1967). See Bingler v. Johnson, 394 U.S. 741, 749—751 [, 89 S.Ct. 1439, 1444, 22 L.Ed.2d 695, ] (1969); Commissioner v. South Texas Lumber Co., 333 U.S. 496, 501 [, 68 S.Ct. 695, 698, 92 L.Ed. 831] (1948).

Treasury Regulation 1.172 — 4(b)(ii) provides in relevant part:

The portion of the loss which shall be carried to any of such several taxable years subsequent to the earliest taxable years is the excess of such net operating loss over the sum of the aggregate of the taxable income (computed as provided in § 1.172-5) for all of such several taxable years preceding such taxable year which are subject to the Internal Revenue Code of 1954.

And, Treasury Regulation § 1.172 — 5 provides, in relevant part:

The taxable income for any taxable year subject to the Internal Revenue Code of 1954 which is subtracted from the net operating loss for any other taxable years to determine the portion of such net operating loss which is a carryback or a carryover to a particular taxable year is computed with the modifications prescribed in this paragraph.
(2) Modifications applicable to unincorporated taxpayers only. In the case of a taxpayer other than a corporation, in computing taxable income and adjusted gross income—
(i) No deduction shall be allowed under section 151 for the personal exemption . . . and under section 1202 in respect to the net long-term capital gain.

We do not believe that these regulations are inconsistent with the language of section 172 but are a reasonable implementation of that statute. Accordingly, we uphold and follow them.

We do not believe that this interpretation diminishes the benefits to be derived from the alternative tax provisions which Congress intended to provide taxpayers whose incomes are in large part derived from long-term capital gains. Had taxpayers computed their tax liability under the regular method, they would have had to pay taxes in the amount of $677,781.30 even after deducting the 1967 net operating loss. Computation of their tax liability under the alternative tax provisions enabled them to limit their liability for income derived from long-term capital gains to a tax of twenty-five percent and reduced their tax bill to $518,516.41. They, therefore, received the full benefits to which they were entitled under section 1201(a). See Weil v. Commissioner, 229 F.2d 593 (6th Cir. 1956).

Reversed.

      . Section 1202 of the Internal Revenue Code of 1954, 26 U.S.C. § 1202, provides, in relevant part, “In the case of a taxpayer other than a corporation, if for any taxable year the net long-term capital gain exceeds the net short-term capital loss, 50 percent of the amount of such excess shall be a deduction from gross income. . . (Emphasis added.)

      . In Foster Lumber Co. v. United States, 500 F.2d 1230 (1974), the Eighth Circuit held that the phrase “to which such loss may be carried” modifies both “prior taxable years” and “taxable income.” We do not believe that this construction is warranted. When the sentence quoted in the text is read in conjunction with the preceding sentence, providing “ . . . the entire amount of the net operating loss for any taxable year . shall be carried to the earliest of the taxable years to which . . . such loss may be carried,” it is clear that the phrase “to which such loss may be carried” modifies only “pri- or taxable years.” A net operating loss is carried only to prior and succeeding taxable years; it is not carried to “taxable income” in those years.
      We observe that although the Eighth Circuit’s construction of section 172 is the same as that placed upon it in the per curiam affirmances for taxpayers in Olympic Foundry Co. v. United States, 493 F.2d 1247 (9th Cir. 1974) and in Chartier Real Estate Co. v. Commissioner, 428 F.2d 474 (1st Cir. 1970), the Fourth Circuit, in its recent decision in Mutual Assurance Society of Virginia Corp. v. Commissioner, 505 F.2d 128 (1974) rejects this construction. These cases, other than the Fourth Circuit decision, involved corporate taxpayers which computed their tax liability under the alternative method provided for by section 1201(a) of the Code, 26 U.S.C. § 1201(a), and which were permitted to carry over to succeeding years a net operating loss to the extent that it exceeded ordinary income earned in the taxable year in question.

      . Section 1201(b), 26 U.S.C. § 1201(b), provides, in relevant part:
      If for any taxable year the net long-term capital gain of any taxpayer (other than a corporation) exceeds the net short-term capital loss, then, in lieu of the tax imposed by sections 1 and 511, there is hereby imposed a tax (if such tax is less than the tax imposed by such sections) which shall consist of the sum of—
      (1) a partial tax computed on the taxable income reduced by an amount equal to 50 percent of such excess, at the rate and in the manner as if this subsection had not been enacted, and
      (2) an amount equal to 25 percent of the excess of the net long-term capital gain over the net short-term capital loss. (Emphasis added.)

      . Our conclusion in this case is strengthened by our observation that had the operating loss at issue in this case occurred during the taxable year 1964, taxpayers would have suffered no net operating loss that could have been carried backward or forward to other taxable years. Section 172(c) of the Code defines “net operating losses” as follows:
      For purposes of this section, the term “net operating loss” means . . . the excess of the deductions allowed by this chapter over the gross income. Such excess shall be computed with the modifications specified in subsection (d).
      In this case, had taxpayers’ operating loss occurred in 1964, and had they computed their tax liability under the alternative method, they would have suffered no net operating loss. Gross income would have been the sum of their ordinary income plus their net long-term capital gains, or $2,079,064.86. In computing whether deductions permitted by the Code would have exceeded this amount, section 172(d) specifically provides that the section 1202 deduction shall not be permitted, and, accordingly, taxpayers could have deducted from gross income only their operating loss of $114,627.75. This deduction would not have exceeded gross income and taxpayers would have suffered no net operating loss. We do not believe that taxpayers should be placed in a better position when an operating loss occurs in a year other than the taxable year in question than they would have been in had the loss occurred in that year.


author: JOHN W. PECK, Circuit Judge.

text:
    Harry J. MANNING, Petitioner-Appellant, v. Jimmy H. ROSE, Warden, Tennessee State Penitentiary, Respondent-Appellee.
    No. 74-1121.
    United States Court of Appeals, Sixth Circuit.
    Dec. 13, 1974.

      Harry J. Manning, William C. Conway, Franklin, Tenn. (court appointed), for petitioner-appellant.
    Milton P. Rice, Atty. Gen. of Tenn., Nashville, Tenn., William C. Koch, Jr., Asst. Atty. Gen., Nashville, Tenn., for respondent-appellee.
    Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges.
   JOHN W. PECK, Circuit Judge.

At petitioner-appellant’s (“appellant”) state court trial on charges of the armed robbery on November 8, 1971, of one Robert Sheehan, the trial judge permitted, over defense objections, one Charles Heathcott to testify that appellant had robbed him on November 5, 1971, four to five blocks from where Mr. Sheehan was robbed. The trial judge admitted evidence of the Heathcott robbery for the limited purpose of possibly identifying the robber of Mr. Sheehan. Mr. Heath-cott testified that, after he had told his robber that he had no money, his robber told him, “Don’t lie to me or I’ll blow a hole through you.” Mr. Sheehan testified that one of his two robbers told him, “Do exactly as I tell you or I’ll blow a hole in you.” Appellant asserted the alibi defense that he was shooting pool at the time of the Sheehan robbery.

Appellant was convicted and sentenced to ninety-nine (99) years’ imprisonment. The state court of criminal appeals rejected appellant’s claim that the trial court erred in admitting evidence of the Heathcott robbery, but reversed appellant’s conviction because the trial judge failed to instruct the jury concerning alibi. The state supreme court, however, reinstated appellant’s conviction because the trial judge has no duty to give an unrequested alibi instruction where defendant fails to “fairly raise” an alibi defense.

Appellant thereafter filed, pro se, in federal district court the instant petition for writ of habeas corpus, claiming that he should be released because evidence of the Heathcott robbery was admitted

and because no alibi instruction was given. The district court, on November 27, 1973, denied appellant’s petition in finding that appellant’s claims were “entirely matters of State law, and do not involve the violation of any federally guaranteed right.” We affirm.

Though Anglo-American jurisprudence generally precludes admitting evidence of other crimes, Note, Other Crimes Evidence at Trial: of Balancing and Other Matters, 70 Yale L.J. 763 (1961), evidence of other crimes may be admitted to prove scheme or plan, motive, knowledge, intent, absence of mistake or accident, or identity. Turner v. United States, 426 F.2d 480, 483-484 (6th Cir. 1970); United States v. Neal, 344 F.2d 254, 255 (6th Cir. 1965) (dictum); McCormick, Evidence § 190 (1972); accord, Proposed Fed.Rule of Evidence 404(b); Uniform Rule of Evidence 55. American jurisdictions nearly universally have rules somewhat similar to the Tennessee common law rule allowing “clear and convincing” evidence of other crimes to establish identity. Of course,

“that a practice is followed by a large number of states is not conclusive in a decision as to whether that practice accords with due process, but it is plainly worth considering in determining whether the practice ‘offends some principle of justice so rooted in the traditions and conscience of our people to be ranked as fundamental.’ ” Leland v. Oregon, 343 U.S. 790, 798, 72 S.Ct. 1002, 1007, 96 L.Ed. 1302 (1952), citing Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934).

Accord, McKeiver v. Pennsylvania, 403 U.S. 528, 548, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).

The improper admission under Tennessee law of evidence of the Heathcott robbery, of course, is immaterial on federal habeas corpus. Similarly, even the conceded propriety under Tennessee law of admitting such evidence would fail to preclude finding that the evidence was improper under the federal due process clause. Phillips v. Neil, 452 F.2d 337 (6th Cir. 1971), cert. denied, 409 U.S. 884, 93 S.Ct. 96, 34 L.Ed.2d 141 (1972). Our inquiry, then, is whether the admission of such evidence violated federal due process, rather than whether it violated state law.

Federal courts have construed the due process clause as “permitting the states wide latitude in fashioning rules of evidence and procedure,” Bassett v. Smith, 464 F.2d 347, 351 (5th Cir. 1972), cert. denied, 410 U.S. 991, 93 S.Ct. 1509, 36 L.Ed.2d 190 (1973). Or as another court of appeals has said,

“The question of admissibility of evidence usually is a matter of state law and procedure and does not involve federal constitutional issues. . And ordinarily habeas corpus being a collateral attack is not considered to be a proper remedy for correcting errors in trial procedure. . . . It is only where the trial errors or irregularities infringe upon specific constitutional protection or are so prejudicial as to amount to a denial of due process that a justiciable federal issue is presented in a habeas corpus proceeding.” Atwell v. Arkansas, 426 F.2d 912, 915 (8th Cir. 1972) (citations omitted).

Accord, Spencer v. Texas, 385 U.S, 554, 562-564, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). Moreover, this court should not strike down the Tennessee rule as unconstitutional when this court has allowed similar evidence to be admitted for similar purposes in federal district courts over which it exercises supervisory power. Spencer v. Texas, 385 U.S. 554, 563, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Bassett v. Smith, 464 F.2d 347, 351-352 (5th Cir. 1972), cert. denied, 410 U.S. 991, 93 S.Ct. 1509, 36 L.Ed.2d 190 (1973), citing Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952). In Turner v. United States, 426 F.2d 480 (6th Cir. 1970), cert. denied, 402 U.S. 982, 91 S.Ct. 1646, 29 L.Ed.2d 148 (1971), defendant claimed that the district court erred in admitting evidence of illegal acts occurring subsequent to the charged Dyer Act violation.

“The evidence of his identifying himself as the brother of Anthony Wallace in registering other Cadillacs is admissible in any event to show the modus operandi, guilty knowledge on the part of Turner and identity.” 426 F.2d at 483-484.

Other courts of appeals likewise have admitted such evidence. E. g., United States v. McCray, 140 U.S.App.D.C. 67, 433 F.2d 1173 (1970); United States v. Hoffman, 415 F.2d 14, 18-19 (7th Cir.), cert. denied, 396 U.S. 958, 90 S.Ct. 431, 24 L.Ed.2d 423 (1969); United States v. Smith, 343 F.2d 607 (2d Cir. 1965); Fernandez v. United States, 329 F.2d 899, 907—909 (9th Cir.), cert. denied, 379 U.S. 832, 85 S.Ct. 62, 13 L.Ed.2d 40 (1964); Hughes v. United States, 320 F.2d 459, 461-462 (10th Cir. 1963).

Though Turner failed to discuss constitutional problems in admitting such evidence, several federal courts, including the Supreme Court, have discussed such problems. In Lisenba v. California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166 (1941), petitioner claimed that the admission, over objection, of testimony concerning the drowning death of his former wife denied him due process in his trial on charges of drowning a later wife. He claimed that he was given “no opportunity to answer” such “wholly disconnected” evidence. Though, as in the instant case, the “other crime” apparently never resulted in a criminal charge, much less a conviction, the court sustained the admission of such evidence because of

“ . . . the widely recognized principle that similar but disconnected acts may be shown to establish intent, design, and system. The Fourteenth Amendment leaves California free to adopt a rule of relevance which the court below holds was applied here in accordance with the State’s law.” 314 U.S. at 227-228, 62 S.Ct. at 286.

Lisenba, of course, differs from the instant case in that there evidence of an uncharged crime was admitted technically to establish a common plan or scheme rather than to establish identity. Detailed analysis, however, reveals that such evidence cannot be so easily pigeonholed because the evidence held to be admissible in Lisenba, even if it established a common plan or scheme of murdering wives for insurance proceeds, also established the identity of the murderer. See Slough, Other Vices, Other Crimes: an Evidentiary Dilemma, 20 Kan.L.Rev. 411, 419 (1972); Note, Developments in Evidence of Other Crimes, 7 Mich.J.L. Ref. 535, 539, 547 (1974). But see McCormick, Evidence 452 (1972).

Moreover, Spencer v. Texas, 385 U.S. 554, 560-561, 87 S.Ct. 648, 652, 17 L.Ed.2d 606 (1967), recognized, and implicitly sanctioned, the Texas rule permitting the use of prior offenses to establish identity, a rule which “prevail[s] in nearly all common-law jurisdictions.” Accord, Foster v. California, 394 U.S. 440, 445, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969) (Black, J., dissenting). Though Spencer sustained the admission of prior criminal convictions at a recidivist trial, it recognized that the state interest in admitting evidence of prior crimes “ . . . in a one-stage recidivist

trial may be thought to represent a less cogent state interest than does [admitting such evidence] for other purposes [such as establishing identity], in that other procedures for applying enhancement-of-sentence statutes may be available to the State that are not suited in the other situations in which such evidence is introduced. We do not think that this distinction should lead to a different constitutional result.” 385 U.S. at 563, 87 S.Ct. at 653.

Spencer, then, supports, if it fails to compel, a finding that the instant admission was constitutionally proper.

More importantly, perhaps, at least five federal courts of appeals have held that the admission of evidence similar to that of the Heathcott robbery establishes no constitutional violation cognizable on federal habeas corpus. Umbaugh v. Hutto, 486 F.2d 904 (8th Cir. 1973), cert. denied, 416 U.S. 960, 94 S.Ct. 1978 (1974) (evidence that defendant raped another woman to establish his motive and intent); Heads v. Beto, 468 F.2d 240 (5th Cir. 1972) (evidence of two other murders to establish intent or motive); Cassasa v. Nelson, 452 F.2d 1083 (9th Cir. 1971) (evidence of two other fires to establish identity); United States ex rel. Holliday v. Adams, 443 F.2d 7 (2d Cir. 1971), aff’g 325 F.Supp. 444 (D.Conn. 1970) (evidence of second assault on victim to show defendant’s consciousness of guilt); Ross v. Maroney, 372 F.2d 53 (3rd Cir. 1967) (evidence of another murder to establish intent, design, or motive).

People v. Lisenba, Cal.App., 89 P.2d 39, aff’d on rehearing, 14 Cal.2d 403, 94 P.2d 569 (1939), aff’d, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166 (1941), specifically rejected appellant’s claim that “constitutional fundamental fairness requires that . . . evidence [of the Heathcott robbery] be proved at a jury trial beyond a reasonable doubt.”

“[T]he prosecution was [not] required, as urged by the defendant, to prove the elements of the asserted Colorado crime beyond all reasonable doubt, as would be the case were the defendant standing trial for such asserted earlier offense. . . . [T]he court below correctly admitted the evidence touching the prior incident in order that the jury in its weighing of the entire evidence might determine whether it tended to show a common plan or scheme on the defendant’s part or tended to overcome the asserted element of accident involved in the death of the subsequent wife . . ..” 89 P.2d at 52-53.

No American jurisdiction requires that evidence of the other crime be in the form of a prior conviction proved beyond a reasonable doubt. McCormick, Evidence 451 — 452 (1972). But see United States v. Haynes, 81 F.Supp. 63, 68-69 (W.D.Pa.1948). See generally Comment, Evidence — Prior Crimes Used to Show Specific Intent and Identity, 50 Marq.L. Rev. 133, 141 (1966). Many jurisdictions even allow evidence of other crimes for limited purposes where defendant has been acquitted, for technical reasons, of those crimes. Note, Other Crimes Evidence at Trial: of Balancing and Other Matters, 70 Yale L.J. 763, 770 (1961). But see 1 Jones, Evidence 414 (1972). The state, of course, must demonstrate defendant’s connection to such other offenses. Comment, Evidence — Prior Crimes Used to Show Specific Intent and Identity, 50 Marq.L.Rev. 133, 139 (1966).

A state cannot, by some evidential rule, permit evidence of all prior crimes “ha[ving] some bearing, however tenuous,” on proving plan or scheme, motive, knowledge, intent, absence of mistake or accident, or identity. Umbaugh v. Hutto, 486 F.2d 904, 907 (8th Cir. 1973), cert. denied, 416 U.S. 960, 94 S.Ct. 1978, 40 L.Ed.2d 311 (1974). To be consistent with due process, the other crime must be “rationally connected” with the charged crime. See Comment, Evidence — Prior Crimes Used to Show Specific Intent and Identity, 50 Marq.L. Rev. 133, 136 (1966).

Moreover, in rejecting appellant’s due process claim, we note that appellant, by testifying to his alibi, placed the identity of the Sheehan robber in issue. Where there is no question concerning the identity of the robber, as for example where mental incapacity is a defense, evidence of other crimes tending to identify that robber may well be unconstitutional “overkill” because the prejudice in such evidence outweighs the probative need for such evidence. But see United States ex rel. Gueldner v. Heyd, 434 F.2d 1307 (5th Cir. 1970).

As for appellant’s claim that the trial judge’s failure to give an unrequested alibi instruction was constitutional error, we find no error cognizable on federal habeas corpus. Cf. United States v. Megna, 450 F.2d 511 (5th Cir. 1971).

Because we have found no constitutional error, it is unnecessary to consider the state’s claim that any such error in appellant’s trial was harmless beyond a reasonable doubt.

Affirmed.

      . Though the state court of criminal appeals found “no objection to Heathcott’s testimony about the defendant robbing him,” Manning v. State, No. A-8354 (Tenn.Ct.Crim.App. Feb. 7, 1973), we read the trial transcript differently and assume, for purposes of this opinion, that appellant properly objected to such testimony. Appellant’s attorney objected to such “evidence as being highly prejudicial.” Trial Transcript 96. The trial court, however, admitted the evidence prompting appellant’s attorney to “most respectfully except to the Court’s ruling.” The trial court acknowledged the attorney’s exception. Trial Transcript 100.

      . The state court of criminal appeals’ opinion, Manning v. State, footnote 1, supra, indicates that the trial judge twice cautioned the jury concerning the limited purpose of the Heath-cott testimony. At the conclusion of the direct examination of Mr. Heathcott, the court made the following statement to the jury:
      “Members of the jury, let me admonish you about the admission of this testimony about this other offense a few days before the one on trial here. Of course, the fact that he robbed this man, whoever he was, or this defendant, if he did, before that, doesn’t throw any light on the fact of whether or not he is guilty in this case, except for one purpose, and it is only admitted for your consideration for one purpose only, and that is to help you if any it does to determine the identity of the man that robbed Mr. Sheehan, the man that is on trial. It can only be considered by you for the purpose of determining identity. That’s the only purpose for which the state offers it and the only purpose for which it can be considered. Please remember that.”
      Moreover, the court charged the jury:
      “Members of the jury, the testimony of Mr. Heathcott with reference to having been robbed by the defendant shortly prior to the alleged robbery in this case has been admitted for your consideration. Members of the jury, I charge you that this evidence was admitted for your consideration for the purpose of showing, if any it does, that the crime in this case was committed by the identical person on trial. The proof of this independent crime such as Mr. Heathcott ■ related cannot be considered by you as evidence of the guilt or innocence of the accused in the case now on trial, but is admitted for the purpose of showing the defendant’s identity, if any it does, and must not be considered by you otherwise.” •
      By twice, and particularly by promptly, admonishing the jury, the trial judge comported with preferred practice. See Note, Developments in Evidence of Other Crimes, 7 Mich.J. L.Ref. 535, 547 (1974). See generally Spencer v. Texas, 385 U.S. 554, 562, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967).

      . The state court of criminal appeals sustained the admission on several grounds. First, it found that appellant had failed to object to such evidence. But see footnote 1, supra. Second, it found that defense counsel waived any objection by cross-examining Mr. Heathcott concerning his robbery. Third, it found that the trial judge’s cautionary instructions, footnote 2, supra, cured the evidence of prejudice. Finally, even assuming sufficient objection, no waiver and prejudice, the court found such evidence admissible. Manning v. State, footnote 1, supra.

      . The state supreme court held that the defense of alibi is “fairly raised” only where (1) credible witnesses corroborate defendant’s alibi, (2) the victim has failed to identify defendant, or (3) the proof against defendant is wholly circumstantial. Manning v. State, Tenn., 500 S.W.2d 913 (1973).

      . Though appellant, in his pro se petition, implied that the admission of the Heathcott testimony “surprised” him, no such claim is advanced on appeal. Moreover, appellant cannot assert a bona fide claim of surprise in that his attorney, when Mr. Heathcott was called as a witness, asked “for the jury to be excused, because I think I know what this man is going to testify to.” Trial Transcript 95. Moreover, appellant failed to request a continuance prior to the testimony of Mr. Heathcott. Trial Transcript 96-100. See Lisenba v. California, 314 U.S. 219, 228, 62 S.Ct. 280, 86 L.Ed. 166 (1941). Though requiring advance notice of the intended use of evidence of other crimes may be preferable, State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167, 172-173 (1965), at least one circuit has refused to impose such requirement on federal trial courts, much less than on state trial courts. McConkey v. United States, 444 F.2d 788 (8th Cir.), cert. denied, 404 U.S. 885, 92 S.Ct. 223, 30 L.Ed.2d 168 (1971).

      . Spencer v. Texas, 385 U.S. 554, 560-561, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967) (dictum); Annot., Admissibility, in robbery prosecution, of evidence of other robberies, 42 A.L.R.2d 854 (1955). See, e. g., Robinson v. United States, 148 U.S.App.D.C. 58, 459 F.2d 847 (1972); State v. Fuston, 7 Or.App. 436, 490 P.2d 1024 (1971).

      . Parker v. Swenson, 332 F.Supp. 1225 (E.D. Mo.1971), aff’d, 459 F.2d 164 (8th Cir. 1972), cert. denied, 409 U.S. 1126, 93 S.Ct. 943, 35 L.Ed.2d 258 (1973). See Moore v. Illinois, 408 U.S. 786, 799, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). Judge Galbreath, dissenting in Manning v. State, footnote 1, supra, thought that the Heathcott testimony was inadmissible under state law. Compare Warren v. State, 178 Tenn. 157, 156 S.W.2d 416 (1941) with State v. Gross, No. - (Tenn.Ct.Crim. App. June 21, 1971).

      . Appellant has failed to urge that the Heath-cott robbery was insufficiently “connected” with the Sheehan robbery. The geographic (four to five blocks) and temporal (three days) proximity of the two robberies, as well as nearly identical language (“I’ll blow a hole in [or through] you”), sufficiently connects, for due process purposes, the two robberies.


author: TRASK, Circuit Judge:

text:
    Robert E. BAKER, Plaintiff-Appellant, v. CALIFORNIA LAND TITLE COMPANY, Defendant-Appellee.
    No. 72-2568.
    United States Court of Appeals, Ninth Circuit.
    Dec. 4, 1974.
    Joan T. Andersson (argued), of An-dersson, Litt, Livezey, Lund & Taylor, Los Angeles, Cal., for plaintiff-appellant.

      John W. Shenk (argued), of Tremaine, Shenk, Stroud & Roberts, Los Angeles, Cal., for defendant-appellee.
    Before CARTER and TRASK, Circuit Judges, and NEILL, District Judge.

       Honorable Marshall A. Neill, United States District Judge from the Eastern District of Washington, sitting by designation.

   OPINION

TRASK, Circuit Judge:

Baker appeals the dismissal of his complaint for failure to state a claim upon which relief can be granted. Jurisdiction in the district court for this civil rights action brought under Title VII of the Civil Rights Act of 1964 (Amended, Equal Employment Opportunity Act of 1972, Pub.L.No. 92-261, 86 Stat. 103) was based upon 42 U.S.C. § 2000e-5(f)(3). The jurisdiction of this court is authorized by 28 U.S.C. § 1291.

The district court’s memorandum opinion is reported at 349 F.Supp. 235 (C.D. Cal.1972).

Appellant was discharged from the employ of appellee because of nonconformity with appellee’s hair-length policy. Believing that the Company’s tolerance of long hair for female employees and objection to the same length for males constituted sex discrimination within the purview of 42 U.S.C. § 2000e— 2(a), appellant initiated proceedings before the Equal Employment Opportunity Commission (EEOC). After exhausting his administrative remedies, appellant filed this suit.

The district court dismissed appellant’s claim, and held that the varying hair-length policies did not “discriminate” within the meaning of the statute. 349 F.Supp. at 238 — 239. In so finding, the court stated that the Act was never intended “ . . .to interfere in the promulgation and enforcement of the general rules of employment, deemed essential by an employer, where the direct or indirect economic effect upon the employee was nominal or nonexistent.” Id. at 238.

We are not persuaded that tolerance of a certain hair length for female employees but not for males “discriminates” on the basis of sex within the meaning of Title VII of the Civil Rights Act of 1964. It seems clear from a reading of the Act that Congress was not prompted to add “sex” to Title VII on account of regulations by employers of dress or cosmetic or grooming practices which an employer might think his particular business required. The need which prompted this legislation was one to permit each individual to become employed and to continue in employment according to his or her job capabilities. Or, to express it another way, “The paradigm case of explicit sex discrimination is where sex itself, as a broad generic classification, is the sole basis of the action taken by the employer. Such a case occurs when an employer simply refuses to hire women for a certain position.” Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1170 (1971).

Cases in the district court of the United States are split on the question of hair restrictions as a condition of employment. See Dilloff, Federal Court Litigation Over the Regulation of Adult Grooming, 38 Albany L.Rev. 387, 390 (1974). Likewise there is division among the district courts of this Circuit. Compare Baker v. California Land Title Co., 349 F.Supp. 235 (C.D.Cal.1972), with Donohue v. Shoe Corp. of America, Inc., 337 F.Supp. 1357 (C.D.Cal.1972).

The issue has also received attention by appellate courts. In Fagan v. National Cash Register Co., 157 U.S.App.D.C. 15, 481 F.2d 1115 (1973), the employer adopted a grooming standard for its male employees with which the appellant was required to conform on pain of losing his job. The district court dismissed his . action under 42 U.S.C. § 2000e — 2(a) for failure to state a claim entitling him to relief. Much of the rationale of Fagan lends itself to a conclusion that the court was convinced that hair-length regulation does not constitute discrimination on account of sex within the meaning of Title VII. Thus the court reasoned that an employer may not adhere to practices which discriminate because of “immutable” characteristics of race, national origin, color or sex. The maxim of expressio unius est exclusio alterius lends further credence to the view expressed in Fagan. Since race, national origin and color represent immutable characteristics, logic dictates that sex is used in the same sense rather than to indicate personal modes of dress or cosmetic effects. Because there was other discussion by that court justifying the regulation on the basis of employer needs, it may also be taken as authority for a holding limited to the exception for “bona fide occupational qualification.” 42 U.S.C. § 2000e — 2(e). That uncertainty became moot, however, when the same circuit decided Dodge v. Giant Food, Inc., 488 F.2d 1333 (D.C.Cir. 1973). There the court, relying upon section 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e — 2, faced the issue squarely and decided that hair-length regulation was not discrimination within the meaning of Title VII.

The Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), spoke in the same vein. The issue there was racial discrimination. Said the Court:

“The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.” Id. at 429-430, 91 S.Ct. at 853.

Obviously, it seems to us, the Court was not talking in terms of hair styles or modes of dress over which the job applicant has complete control. The Court was addressing itself to characteristics which the applicant, otherwise qualified, had no power to alter.

The employment which was under consideration here was a job in the Title Company as a Title Clerk. Neither the Findings of Fact by the district court nor the record otherwise indicate just what the job requirements might be. Certainly there is no suggestion that it might have been better performed by a man than by a woman or vice versa.

The character of appellant’s sex does not seem to have been a deterrent to his qualifications or he would not have obtained the job in the first place. It was his violation of the company grooming standards after his employment which appears to have caused his termination, not his sex.

We agree with the district court that a private employer may require male employees to adhere to different modes of dress and grooming than those required of female employees and such does not constitute an unfair employment practice within the meaning of 42 U.S.C. § 2000e — 2(a).

Having so found, it becomes unnecessary for us to consider whether the employer’s dress requirement might be justified as a bona fide occupational qualification pursuant to 42 U.S.C. § 2000e— 2(e)(1).

Judgment affirmed.

      . Section 703(a) of Title VII, 42 U.S.C.
      § 2000e-2(a) provides:
      “It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or, (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities . . because of such individual’s . . . sex . . ..”

      . While the legislative history of the 1964 Act, Public Law 88-352, is not substantial, that of the Equal Employment Act of 1972, Public Law 92-261, is more helpful. A statement of the need which prompted the bill, set out in House Report No. 92-238, recites that:
      “Women are subject to economic deprivation as a class. Their self-fulfillment and development is frustrated because of their sex. Numerous studies have shown that women are placed in the less challenging, the less responsible and the less remunerative positions on the basis of their sex alone.
      “This Committee believes that women’s rights are not judicial divertissements. Discrimination against women is no less serious than other forms of prohibited employment practices and is to be accorded the same degree of social concern given to any type of unlawful discrimination.
      “The time has come to bring an end to job discrimination once and for all, and to insure every citizen the opportunity for the decent self-respect that accompanies a job commensurate with one’s abilities. U.S.Code Cong. & Admin.News, pp. 2140-2141 (1972).


author: ROSENN, Circuit Judge.

text:
    GOVERNMENT OF the VIRGIN ISLANDS v. Glen PETERSEN, Appellant.
    No. 74-1272.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 3, 1974.
    Decided Jan. 16, 1975.

      Appeal from the District Court of the Virgin Islands, Division of St. Thomas and St. John (Crim. No. 74-9).
    Frederick D. Rosenberg, Bailey, Wood & Rosenberg, Charlotte Amalie, St. Thomas, V. I., for appellant.
    Julio A. Brady, U. S. Atty., Ishmael A. Meyers, Asst. U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellee.
    Before SEITZ, Chief Judge, and VAN DUSEN and ROSENN, Circuit Judges.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

Defendant, Glen Petersen, was tried to a jury and convicted of murder in the first degree, a violation of 14 V.I.C. § 922, and assault in the first degree, a violation of 14 V.I.C. § 295(1). He was sentenced to concurrent terms of life and fifteen years imprisonment respectively. He appeals, contending that the evidence was insufficient to convict, and that a pretrial photographic identification by a witness who had failed to make an in-court identification was improperly admitted at trial. We affirm.

The following facts are undisputed. Dr. Alfredo Rothenberg and his wife Barbara, residents of Puerto Rico, came to visit the Virgin Islands, arriving in St. Thomas on January 12, 1974. At about 7:30 P.M. the next evening, the couple left their hotel to go out for dinner. While waiting for a taxi, they met Mal-vin Hendrickson, who, accompanied by his brother, was also looking for transportation. As they were attempting to flag a cab, two men came across the street and stood at some distance to the side and behind a pumphouse nearby. Suddenly one of the two men approached the waiting group, mumbled indistinctly, and then started firing a handgun, the bullets striking both Dr. and Mrs. Rothenberg. Dr. Rothenberg succumbed to his wounds the next day.

At dispute in this case is the identity of the man who did the shooting. The Government produced three eyewitnesses, each of whose testimony is attacked by the defendant.

Malvin Hendrickson, who was waiting with the Rothenbergs, testified that “two guys come across the street and one guy passes closer to me,” whom Hendrickson knew, although not by name, having given the man rides on several occasions. Hendrickson then testified that the gunman ran toward the group, jumped between the Rothenbergs and himself, and fired the fatal shots. When asked to identify the assailant, Hendrickson chose Petersen from among a group of young men of similar general appearance sitting in the back of the courtroom, where, with the permission of the court, Petersen was allowed to sit.

On cross-examination, the witness denied having been a police informer, but admitted the fact upon examination by the court. Hendrickson also admitted that he had identified Petersen as the assailant only from a second photographic display after he had been unable to make an identification from an initial display. He revealed that, while driving around the area of the crime with the police in an attempt to find the gunman, he had identified another person who “lookfed] like him.” That person turned out to be the defendant’s brother, Willie Boe Petersen. Hendrickson was positive that the gunman wore a straw hat pulled down over the face, a dungaree jacket and pants, and construction boots.

The Government also presented testimony from Carl Petersen, no relation to the defendant, who was sitting on the railing of the porch of his home about twenty to thirty feet away when the shooting occurred. Carl testified that two boys came across the street, that they stopped about twenty feet from the porch, and that the assailant stared at him for about five minutes before walking over and shooting the Rothenbergs. Carl stated that he knew the defendant by sight prior to the shooting as the brother of Willie Boe Petersen, a former classmate. The witness then identified the defendant as the assailant from among those sitting in the back of the courtroom.

A vigorous effort was made on cross-examination to impugn Carl’s ability to see the commission of the crime because trees and shrubbery through which he could not see separated him from where the two men were standing. The witness also acknowledged that it was dark at the time of the shooting, and that the nearest lights were on the side of the street opposite his vantage point. After first stating he saw the assailant holding a gun, he then admitted that he saw no gun although he did see the assailant shoot Dr. Rothenberg in the stomach. Carl described the gunman as wearing a yellow wool hat and sneakers.

In connection with Carl’s testimony, the jury later viewed the scene of the murder. Although the view was taken in the daylight, the jury was able to see the railing upon which Carl was sitting, the shrubbery and trees in front of the porch, and the spot where the Rothen-bergs were standing.

The Government also put Mrs. Rothen-berg on the stand. She recalled having looked at, and thought she could remember, the face of the assailant. However, the person whom she identified in the back of the courtroom as her assailant was actually the defendant’s brother. Mrs. Rothenberg was recalled the next day, and over objection of defense counsel, testified that two days earlier she had chosen a photograph of the defendant as her assailant. Due to her inability to continue because of emotional distress, counsel stipulated that she stated at the time, “I think this is the face but I’m not positive.” The photograph was admitted into evidence.

The final witness to whose testimony we shall refer is Detective Noel Martin who investigated the crime. Martin testified that the defendant had left for Tortola, British Virgin Islands, on January 15, and overstayed the period of time for which he was admitted as a visitor. Cross-examination revealed that Detective Martin had obtained an eyewitness identification from one Otis Rieara, who in a statement given on January 24 did not implicate Petersen but who, upon being taken to the police station, made a second statement implicating the defendant. Rieara did not testify at trial.

The standard to be used in judging the sufficiency of the evidence is whether the jury was justified in concluding beyond a reasonable doubt that the evidence, when viewed in the light most favorable to the Government, was consistent with defendant’s guilt. United States v. Ducker, 491 F.2d 1190 (5th Cir. 1974); Government of the Virgin Islands v. Lanclos, 477 F.2d 603 (3d Cir. 1973).

Defendant alleges four major deficiencies in the evidence: (1) witness Hendrickson had made a mistaken out-of-court identification; (2) Mrs. Rothenberg, after making an uncertain pretrial identification, chose in the courtroom defendant’s brother as her assailant; (3) the description given by Hendrickson of the assailant’s apparel and his approach to the Rothenbergs conflicted with the version given by Carl Petersen; and (4) witness Petersen’s story was inherently unreliable because shrubbery and trees obscured his vision of the scene of the crime, the street was not well lit, and because no person about to commit a crime would stare for five minutes at a potential witness, especially a witness whom the defendant knew.

We are aware of the vagaries of eyewitness identification, see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and that under our mandate in United States v. Barber, 442 F.2d 517 (3d Cir. 1971), cert. denied sub nom., Mowbray v. United States, 404 U.S. 846, 92 S.Ct. 148, 30 L.Ed.2d 83 (1972), the testimony of the eyewitnesses must be received with caution and scrutinized with care. We are also aware that the purpose behind a motion for acquittal is that “jurors may not always be capable of applying strictly the instructions of the court, nor of basing their verdict entirely upon the evidence developed at trial.” 8 J. Moore, Federal Practice K 29.02 at 29-6 (2d ed. 1974). The trial judge, however, did properly instruct the jurors in accordance with Barber. We do not believe that the deficiencies alluded to were of such importance or the discrepancies between the testimony of certain witnesses of such significance that they could not be reconciled by reasonable jurors. It would be a rare case indeed if all the testimony of the prosecution were in perfect harmony.

The jury could have found that Hendrickson’s pretrial identification of the defendant’s brother as the assailant was mistaken, and that his later in-court identification of the defendant was correct. This in-court identification had special significance because the defendant, with the permission of the court, sat in the back of the courtroom among men of similar general appearance. Likewise, Mrs. Rothenberg had identified the defendant in a photographic display, and the jury could have concluded that her identification in court of the defendant’s brother, who also sat with defendant in the back of the courtroom, was caused by the severe emotional distress she was experiencing.

The discrepancy between the descriptions of the assailant given by Hendrick-son and Petersen are fairly minor. A straw hat, presumably yellow, may look like a yellow wool hat in the distance. High-topped colored sneakers may well appear similar to construction boots, particularly in darkness. One man’s walk may be another man’s trot.

Finally, Carl Petersen’s account of the slaying was in the realm of credibility. The jury viewed the porch and railing on which he sat and the scene of the crime. The jury could see for itself whether Carl’s view of the senseless slaying was obscured. While one about to commit a crime usually would not stare at a potential witness, such behavior was no more explicable than the pointless nature of the attack.

The jury reasonably could have concluded the evidence showed that (1) Mal-vin Hendrickson and Carl Petersen, eyewitnesses to the crime, both identified the defendant as the assailant from a number of men of similar general appearance sitting in the back of the courtroom; (2) Barbara Rothenberg, the surviving victim of the crime, identified the defendant from a photographic display as the person whom she believed to be her assailant; and (3) the defendant had fled St. Thomas two days after the crime. We believe that this is sufficient evidence for the jury to conclude beyond a reasonable doubt that Glen Petersen was the perpetrator of the crime.

Defendant also contends that the trial court erred in allowing Mrs. Rothenberg to testify about her identification of the defendant in a pretrial photographic display, and in allowing the introduction of the photograph into evidence. Defendant argues that the admission of such evidence after the failure of Mrs. Rothenberg to identify in court the defendant as her assailant allowed the Government to impeach its own witness and was highly prejudicial. Under the circumstances of this case, the evidence was not used to impeach Mrs. Rothenberg. The Government did not attempt to discredit her testimony. Rather, the evidence was introduced as independent proof of an identification of the assailant by the victim of the crime.

We are committed in this Circuit to admitting such evidence if its probative value outweighs any prejudicial effect. United States v. Gimelstob, 475 F.2d 157, 162 (3d Cir.), cert. denied, 414 U.S. 828, 94 S.Ct. 49, 38 L.Ed.2d 62 (1973); United States v. Hines, 470 F.2d 225, 225-228 (3d Cir. 1972), cert. denied, 410 U.S. 968, 93 S.Ct. 1452, 35 L.Ed.2d 703 (1973). In both cases, we allowed reference to pretrial photographic identifications to buttress in-court identifications over objections that such references would allow the jury to believe that the pretrial identifications were from police mug shots and thus infer that the defendants had engaged in prior criminal activity. More importantly, in Hines we cited with approval People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865 (1960), in which the trial court admitted evidence of a photographic identification by a witness who could not identify the defendant at trial. Justice Traynor wrote:

Evidence of an extra-judicial identification is admissible, not only to corroborate an identification made at the trial . . . , but as independent evidence of identity. Unlike other testimony that cannot be corroborated by proof of prior consistent statements unless it is first impeached . . ., evidence of an extra-judicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness’ mind. . . . The failure of the witness to repeat the extra-judicial identification in court does not destroy its probative value, for such failure may be explained by loss of memory or other circumstances. The extra-judicial identification tends to connect the defendant with the crime, and the principal danger of admitting hearsay evidence is not present since the witness is available at the trial for cross-examination.

7 Cal.Rptr. at 867, 354 P.2d at 867. We agree with the teaching of Gould. The photographic identification made by Mrs. Rothenberg had definite probative value and properly was admissible as independent evidence.

The judgment of the district court will be affirmed.

      . Defendant also comments on several additional points: (a) Hendrickson’s hostile attitude on the witness stand as evidenced by his initial refusal to admit to being a police informer; and (b) the failure of Carl Petersen to go directly to the police with his story and his admission that although he had seen the assailant point his hand at the victim’s back, contrary to his testimony on direct examination, he actually had not seen a gun.
      These points, going to the credibility of the witnesses, were for the jury to evaluate. We cannot say as a matter of law that the witnesses were unbelievable.
      Finally, defendant notes the failure of the Government to put Otis Rieara and Malvin Hendrickson’s brother on the witness stand. We simply note that the Government had no duty to produce every witness having some knowledge of the facts. United States v. Hines, 470 F.2d 225 (3d Cir. 1972), cert. denied, 410 U.S. 968, 93 S.Ct. 1452, 35 L.Ed.2d 703 (1973).

      . The Barber court approved the use of the following jury instruction:
      The identification testimony may be treated by the jury as a statement of fact by the witness: (1) if the witness had the opportunity to observe the accused; (2) if the witness is positive in his identification; (3) if the witness’ identification testimony is not weakened by prior failure to identify or by prior inconsistent identification; and (4) if, after cross-examination, his testimony remains positive and unqualified. In the absence of any one of these four conditions, however, the jury will be admonished by the court that the witness’ testimony as to identity must be received with caution and scrutinized with care. 442 F.2d at 528.

      . At the close of the Government’s case, defendant moved for a judgment of acquittal. When the motion was denied, he did not offer any evidence in his behalf.

      . The trial was held only a month after the shooting and on the date of what would have been Dr. Rothenberg’s birthday. In attempting to make an in-court identification, Mrs. Rothenberg had to be helped by the marshal from the witness stand. On occasion, she cried and the court asked the marshal to take her outside for some water.


author: PER CURIAM:

text:
    Taylor S. HARDIN and Katherine B. Hardin, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
    No. 74-1438.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 4, 1974.
    Decided Dec. 23, 1974.
    Fred R. Tansill, Washington, D. C. (Paul S. Richter and Bird & Tansill, Washington, D. C., on brief), for appellants.
    George G. Wolf, Atty., Tax Div., U. S. Dept, of Justice (Scott P. Crampton, Asst. Atty. Gen., Ernest J. Brown and Gary R. Allen, Attys., Tax Div., U. S. Dept, of Justice, on brief), for appellee.
    Before WINTER, CRAVEN and RUSSELL, Circuit Judges.
   PER CURIAM:

We agree with the Tax Court that when the taxpayers owned the race horse for only twenty-seven days prior to the end of the calendar year, they were entitled to claim depreciation for only the period of ownership and not for a full year, notwithstanding that by the rule of the sport a thoroughbred race horse is deemed to be one year older on January 1 of each year. We affirm on the memorandum opinion of the Tax Court. Taylor S. Hardin, 32 T.C.M. 892 (1973).

Affirmed.


text:
    Mark Allen McBRIDE, Petitioner- Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 74-3489
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 7, 1975.

      Mark Allen McBride, pro se.
    John L. Hill, Atty. Gen., Austin, Tex., Randall S. Boyd, Asst. Atty. Gen., Dallas, Tex., for respondent-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

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

   PER CURIAM:

McBride attacks his confinement as unconstitutional because the sentence imposed exceeds the limits of a plea bargain. The District Court dismissed this allegation without prejudice because it held this issue had never been presented to the Texas courts. 28 U.S. C.A. § 2254. McBride contends he has presented this issue to the Texas Court of Criminal Appeals because he submitted a supplemental pro se brief directed expressly to the issue. This brief was supplemental to one filed by counsel on direct appeal from his sentencing. We agree this “presentation” is enough to satisfy the jurisdictional requirements of § 2254, but affirm the District Court. Alonzo v. Estelle, 5 Cir., 1974, 500 F.2d 672.

The only difference between McBride’s case and Alonzo’s is that McBride’s pro se brief in the Texas appellate court presented the plea bargain issue much more forcefully than did Alonzo’s state appellate brief. In that case, the issue we sent back to the state court was only presented in a passing reference — not otherwise set off — in the text of a brief presenting several issues. We hold this distinction does not warrant a contrary result.

Principles of comity require us to put more emphasis on two factors which are the same in McBride’s ease as in Alonzo’s, (i) the state court did not address itself to the issue in its opinion, and (ii) the state court had no factual record upon which to base any consideration of the issue. “Article 11.07 of the Texas Code of Criminal Procedure provides an ‘available State corrective process to protect the rights of the prisoner.’ 28 U.S.C.A. § 2254(b). That forum should be given the opportunity to assess the factual foundation of appellant’s claims. [Citation omitted].” 500 F.2d at 673.

Affirmed.

      . McBride’s counsel urged the state trial Judge’s comments during the trial exceeded the bounds of propriety. McBride now asserts those comments violated his constitutional right to a fair trial. We do not think constitutional error was committed. At the very most, appellant has shown the Judge may have infringed upon Art. 38.05, Vernon’s Ann.Tex.Code of Criminal Procedure.