author: MULLIGAN, Circuit Judge:

text:
    BRIDGEPORT GUARDIANS, INC., et al., Plaintiffs-Appellees, v. MEMBERS OF the BRIDGEPORT CIVIL SERVICE COMMISSION et al., Defendants-Appellants.
    No. 894, Docket 73-1356.
    United States Court of Appeals, Second Circuit.
    Argued May 11, 1973.
    Decided June 28, 1973.

      J. Daniel Sagarin, Bridgeport, Conn, and James F. Stapleton, City Atty., Bridgeport, Conn. (Nancy A. O’Connell, Bridgeport, Conn., of counsel), for defendants-appellants.
    Ira Horowitz and Michael P. Koskoff, Bridgeport, Conn. (Mark F. Gross, Bridgeport, Conn., of counsel), for plaintiffs-appellees.
    Before SMITH, MULLIGAN and TIMBERS, Circuit Judges.
   MULLIGAN, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the District of Connecticut dated February 7, 1973 which followed a Memorandum of Decision filed on January 29, 1973, Hon. Jon O. Newman, United States District Court Judge (354 F.Supp. 778).

The action here was commenced on February 24, 1972 by the Bridgeport Guardians, Inc., a non-profit corporation whose members include nearly all the Black policemen of Bridgeport; by the Housing Police Benevolent Association, composed of special policemen who patrol public housing projects in Bridgeport and by individual Black and Puerto Rican residents who have taken but failed the patrolmen’s examinations as well as several Black policemen who have failed promotion examinations. The named defendants are the members and the director of the Bridgeport Civil Service Commission and the superintendent of the Bridgeport Police Department. Intervening defendants are Bridgeport police officers who are or may be eligible for promotion as well as those who have high standing on current eligibility lists, and presumably would be appointed to the force but for the decision below. The complaint in essence charged that the merit system examinations for initial appointments and promotions within the Police Department of the City of Bridgeport discriminated against Black and Spanish residents on the basis of race, color and/or national origin. Injunctive and declaratory judgment relief were sought under the Civil Rights Acts, 42 U.S.C. §§ 1981, 1983 and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202. The action was filed before the 1972 amendment to Title VII of the Civil Rights Act of 1964 which deleted the exemption of states and political subdivisions as employers within the Act.

I

An applicant for the Bridgeport Police Department must meet age and physical requirements, possess emotional stability, have good moral character and an aptitude for increasing his knowledge of crime detection and law enforcement techniques. He must take a written exam with a passing grade of 75 on a scale of 0 to 100. The grade is established in the rules of the Civil Service Commission and applies to all Civil Service tests given in the City. The applicant’s prior training and experience is rated according to a chart assigning arithmetical values for experience and higher education. A background investigation is conducted for all who pass the written exam and the physical requirements. The director of Civil Service reviews the background investigation and in his discretion determines whether the applicant is suitable. A numerical rating is then assigned by weighting the exam grade at 70% and training and experience at 30%. The eligibility list ranks the successful applicants in ■ accordance with this weighted average and the list is valid for two years.

The claim of the plaintiffs is that their constitutional rights to Equal Protection under the Fourteenth Amendment have been violated primarily because the written examination denies them equal employment opportunity. The court below found that the plaintiffs had made a prima facie showing of discrimination and the evidence amply supports the finding. Between 1965 and 1970 some 644 persons took the policeman’s written examination. 58% of the 568 White candidates passed while only 17% of the 76 Black and Puerto Rican applicants were successful. Thus the passing rate for Whites was 3% times better than Blacks and Puerto Ricans. This is a greater disparity than that existing in comparable cases where courts have found that a case of prima facie discrimination was established. Moreover, while Bridgeport has a combined Black and Spanish speaking population of 25%, members of these minorities only represent 3.6% of the Department. It is further significant that the cities of Hartford and New Haven, Connecticut, which have roughly the same population and the same size police departments, show a decidedly better record of minority police employment.

Appellants cannot dispute seriously that a de facto case of discrimination has been here established. Moreover, they do urge that it is not of constitutional magnitude and even if it were, the court below erred in not applying the customary “rational relationship” test of the Fourteenth Amendment. Indeed, Judge Newman found that the written examination under attack did test intelligence and hence he concluded it was not irrational to employ it for police candidates. 354 F.Supp. at 791. Appellants relying principally upon San Antonio Independent School Dist. v. Rodriguez 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (March 21, 1973), urge that case as authority for the proposition that the defendants here are only required to establish a rational basis for the test and since Judge Newman found this' to exist, the judgment below must be reversed. Rodriguez, however, is not controlling here. In that case, the Court dealt with the Texas property tax plan for financing educational facilities. It was urged that scheme was subject to the more rigorous compelling government interest test because it created a suspect wealth classification. The Court rejected the argument since the plaintiffs had failed to establish that the plan operated to the peculiar disadvantage of any class fairly definable as indigent, i. e., poor persons do not necessarily live in poor school districts, 411 U.S. at 22-23, 93 S.Ct. at 1291. Here however, the plaintiffs have been found to constitute a class which has been disadvantaged by the employment of the test. Therefore, we do not consider Rodriguez in point.

Having established the discrimination we cannot agree that since there was no showing that the test was deliberately or intentionally discriminatory, the defendants have therefore escaped the burden of establishing justification for its utilization. Chance v. Board of Examiners, 458 F.2d 1167, 1177 (2d Cir. 1972); see Pride v. Community School Bd., 482 F.2d 257, 265 (2d Cir. 1973); Kennedy Park Homes Ass’n v. City of Lackawanna, 436 F.2d 108, 114 (2d Cir. 1970), cert. denied, 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971). The question then becomes what is the appropriate burden of justification thrust upon the defendants. This court has thus far avoided the problem since in Chance we found that in any event the examination in question did not even comply with the less rigorous standard of “rational basis.” Judge Feinberg who wrote the opinion in Chance, has since observed (Green v. Waterford Bd. of Educ., 473 F.2d 629, 633-634 (2d Cir. 1973)) that the rational basis test has become perceptibly more rigorous as the result of the unanimous opinion of the Supreme Court in Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). Judge Newman held that the appropriate test was somewhere between the traditional rational basis and compelling necessity criteria the courts have employed in Equal Protection cases. 354 F.Supp. at 788 & n. 6.

The public employment test cases are sui generis in that the classification is not made by the municipal body but results from a testing device which in fact results in an invidious discrimination since it disadvantages minority groups. Hence, while the right to public employment is not fundamental in an Equal Protection context (see San Antonio Independent School Dist. v. Rodriguez, supra, 411 U.S. at 29-34, 93 S.Ct. at 1295-1297) there is a suspect (racial) classification which ensues. There have been so many of these cases in litigation that a viable test has emerged which in fact was adopted by the court below and has wide judicial support. Where the plaintiffs have established that the disparity between the hiring of Whites and minorities is of sufficient magnitude, then there is a heavy burden on the defendant to establish that the examination creating the discrimination bears a demonstrable relationship to successful performance of the jobs for which they were used. This essentially was the test employed by this court in Chance and by the First Circuit in Castro v. Beecher, 459 F.2d 725 (1972). This “job relatedness” test was recently employed by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 n. 14, 36 L.Ed.2d 668 (May 14, 1973). While McDonnell was a Title VII case and did not technically involve Equal Protection issues, it is significant that the court relied not only on Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) but also cited both Castro and Chance which were Section 1983 cases as is the ease before us. In view of the substantial authority for this test we see no advantage in an agonizing semantic discussion as to whether it is within or without the parameters of the “rational basis” test employed in distinguishable situations.

We therefore turn to the question of whether the defendants have established that the written examination under attack was “job related.” Did it bear a demonstrable relationship to successful performance of the patrolman’s job? Judge Newman meticulously reviewed the evidence and concluded that the defendants had failed to sustain their burden. We cannot characterize this to be a clearly erroneous finding.

The best method of establishing job relatedness is to establish that the test had “predictive validity.” Criteria must be identified which indicate successful job performance. Test scores are then matched with job performance ratings for the selected criteria. This establishes realistically whether the applicant who received high scores was actually performing as predicted. No validation studies have been conducted here either before the exams were given or later. Two other recognized methods of insuring that examinations are job related are based upon so called “construct validity” and “content validity.” Construct validity would be achieved if there had been an identification of the characteristics believed important to successful job performance followed by the structuring of an examination directed to a determination of the degree to which the applicant possessed the required characteristics. Content validity would be established if the content of the test closely duplicates the actual duties to be performed by the applicant. While it is concededly difficult to prepare examinations which can accurately calibrate and measure the ability of a person to perform the duties of a policeman which combines not only professional skills but decisions involving judgment and tact and qualities of personal courage, compassion, dedication and moral probity, we are persuaded that the challenged examination was primarily based upon verbal skills and was not significantly job related.

The examination used was not prepared by the defendants but was purchased from the Public Personnel Association (PPA), a private non-profit corporation. It was prepared in 1953 and is utilized by several hundred governmental agencies. It is basically an intelligence test not geared in any significant fashion to establish whether or not the applicant will be a good policeman. Thus many of the vocabulary and arithmetic questions are only superficially or peripherally related to police activity. For example:

“69. Cartridges cost retail $3.00 for boxes of 20. The wholesale cost is $2.25 a box plus $.25 a hundred shipping charge. How much is saved if 300 are purchased wholesale ?”

While policemen do use cartridges, the question has in fact nothing specifically to do with the work of the police. If the word “Bible” were substituted for “cartridge,” the answer would be the same but it would hardly be probative of an applicant’s fitness for the ministry or even as a Bible salesman. The question selected is not atypical. Aside from irrelevancy the examination’s stress on vocabulary and verbal skills produces a cultural bias according to the testimony of Richard Barrett, a recognized expert in testing. Moreover, that part of the test which does seem relevant, the ability to observe and remember faces and data, consists of displaying eight sets of front and profile mug shots, but all of the faces are of Whites. Barrett testified that it was probably easier for Whites to distinguish among White faces than for Blacks. There is some support for this view. The entrance examination is further vulnerable in that the City ordinance mandates a uniform cut-off score of 75. This is an arbitrary determination indicative of an archaic testing system particularly where there is no evidence of weighting of questions based upon actual job requirements.

While the patrolman’s entrance examination is clearly flawed and its viability as a vehicle of determining fitness for the prospective patrolman is not established, the promotional procedure also under constitutional attack is on a different footing. Again the assault is upon the written examination. The difficulty is that only 20 non-Whites have taken the sergeant’s examination since 1960. The 1972 examination had 201 candidates, 10 of which were Blacks or Puerto Ricans — the passing rate for the Whites was 68%, for the minorities 40%. As Judge Newman pointed out if only one more non-White had passed the examination the comparative passing rates would be 68% and 50%. There was no showing therefore of the substantial de facto discrimination in the promotion examination, which was apparent in the hiring exam. While it is true that there are no non-White supervisory personnel in the Bridgeport Police Department and only one non-White above the rank of patrolman, the apparent cause is the discriminatory hiring examination and not subsequent examining procedures. Not having found de facto discrimination, the court did not adjudicate the “job relatedness” character of the promotion procedures. We again find no abuse of discretion and cannot accept appellees’ position that the discrepancy between the non-White supervisory police personnel in comparison to the non-White City population, is sufficient to shift the burden of justification of the written tests to the defendants. See note 4, supra.

II

After making these findings, the court below entered the following judgment:

It is ORDERED, ADJUDGED and DECREED that the patrolman’s examination as used by the defendants now has and for many years has had the effect of denying plaintiffs their constitutional right to the equal protection of the laws.
It is further ORDERED, ADJUDGED and DECREED that:
1. Defendants and their employees are enjoined from using patrolman’s examinations of the type found discriminatory in this suit in the manner such examinations have been used. Until the remaining provisions of this decree have been complied with, any written examination for the rank of patrolman which the defendants propose to use together with the use to be made of its results shall, prior to use, be submitted to the court for review and approval together with satisfactory evidence that the proposed examination is job related and not discriminatory in the manner in which it will be used.
2. In making appointments to the rank of patrolman and promotions to the ranks of detective, sergeant, lieutenant, and captain, defendants shall assemble a pool of Black and Puerto Rican candidates qualified for the position (hereinafter referred to as “minority pool”) and shall make appointments and promotions from such pool to the number of current and future vacancies specified in the following provisions:
(a) (1). Half of the current ten vacancies in the rank of patrolman.
(2) . Three-fourths of the next 20 vacancies in the rank of patrolman whether caused by the creation of new positions or otherwise.
(3) . Half of all vacancies in the rank of patrolman occurring thereafter until the number of Black and Puerto Rican patrolmen is 50.
(b) . Half of all current and future vacancies in the rank of detective until the number of Black and Puerto Rican detectives is 6.
(c) . Half of all current and future vacancies in the rank of sergeant until the number of Black and Puerto Rican sergeants is 6.
(d) . Half of all vacancies occurring after January 1, 1974 in the rank of lieutenant until the number of Black and Puerto Rican lieutenants is 3.
(e) . Half of all vacancies occurring after January 1, 1975 in the rank of captain until the number of Black and Puerto Rican captains is 2.
(f) . In filling current and future vacancies pursuant to the provisions of 2(a) (3)-(e), the initial vacancy and every odd-numbered vacancy thereafter shall be filled from the minority pool. In filling future vacancies pursuant to the provision of 2(a)(2), if the 20 vacancies specified therein are not created simultaneously, the first 15 vacancies shall be filled from the minority pool.
(g) . Variation from the formulas set forth in 2(a)-(e) will be permitted only upon court order obtained upon a showing of (a) unavailability of qualified Black and Puerto’ Rican candidates, or (b) other good cause.
(h) . Blacks and Puerto Ricans appointed to the rank of patrolman or promoted to higher ranks under normal personnel procedures shall not be considered as appointments or promotions from the minority pool for purposes of the provisions of 2(a)-(e) but shall be counted for purposes of meeting the target totals for Blacks and Puerto Ricans set forth in these provisions.
3. Criteria and procedures to be used in determining qualifications for the minority pool and plans for recruiting qualified candidates for the minority pool shall be submitted to the court for review and approval before being used. Exemption from state and local restrictions will be approved where necessary to effectuate this decree.
4. This court’s order of October 19, 1972, tolling as of March 6, 1972, the period of validity of existing eligibility lists for the rank of patrolman and detective, is modified to provide that such lists are valid for use in filling positions that became vacant within two years of the effective dates of such lists. The stay entered on March 6, 1972, is terminated.
Jurisdiction will be retained for the implementation of the decree.

The principal attack of the appellants here is upon the remedy devised by the court to enforce the constitutional guarantees of the Equal Protection Clause. We commence with the basic tenet that the district court, sitting as a court of equity, has wide power and discretion to fashion its decree not only to prohibit present discrimination but to eradicate the effects of past discriminatory practices. Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 517, 13 L.Ed.2d 709 (1965); United States v. Wood, Wire & Metal Lathers, Local 46, 471 F.2d 408, 413 (2d Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d 398 (1973). Although most of the cases dealing with the issue of past discriminatory practices arose under Title VII of the Civil Rights Act of 1964, Section 1983 cases have also granted relief by sanctioning quotas aimed at curing past discrimination See, e.g., Pennsylvania v. O’Neill, 473 F.2d 1029 (3d Cir. 1973) (en banc); Castro v. Beecher, supra, 459 F.2d 725; Carter v. Gallagher, 452 F.2d 315, 327-332 (8th Cir. 1971) (en banc), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972).

We agree of course that hiring quotas are discriminatory since they deliberately favor minority groups on the basis of color. This court however has-previously sanctioned hiring quotas to cure past discrimination. United States v. Wood, Wire & Metal Lathers, Local 46, supra, 471 F.2d 408. While we approve such relief somewhat gingerly, we do not believe that Judge Newman abused his discretion in imposing the quotas on hiring here. Although there was no showing of intentional discrimination, it is also a fact that the defendants were employing an archaic test which was not validated and which, as we have found, was not job related. Attacks by Blacks and other minorities upon examinations emphasizing verbal skills and not testing the professional skills of the vocation applied for, have been under increasing attack, and the failure here of the defendants to recognize the increasing evidence that tests of this type have an innate cultural bias, cannot be overlooked. A second factor to be weighed is that with the exception-of a single abortive effort in 1968, the City of Bridgeport and its Police Department have failed to take positive steps to recruit minority personnel. Greater numbers could surely be attracted if realistic efforts were made in the minority neighborhoods and in the media they patronize, to educate minority youth to the advantages and opportunities of a police career. Thirdly, the judgment appealed from insists upon the defendants developing a meaningful test which will produce qualified Blacks and Puerto Ricans and not merely token personnel selected because of race and not qualification. Moreover, the 15% goal set in the judgment is modest; it is below the 25% minority population and only slightly more than the existing representation of 14% and 13% in the Hartford and New Haven police forces. Finally, but perhaps the most crucial consideration in our view is that this is not a private employer and not simply an exercise in providing minorities with equal opportunity employment. This is a police department and the visibility of the Black patrolman in the community is a decided advantage for all segments of the public at a time when racial divisiveness is plaguing law enforcement.

We are constrained however to find that the imposition of quotas above the rank of patrolman constitutes an abuse of discretion and is clearly erroneous. Initially, we observe that there has been no finding that the promotion examination is not job related. While past exclusionary hiring examinations do justify the quota remedy on entrance, there is no justification in our view for extending the remedy to higher ranks. We are discussing some 117 positions with time-in-grade requirements mandating three years’ service as patrolman, sergeant and lieutenant postponing promotion to captain for a minimum of nine years. While this factor will delay those of the minority groups who will become patrolmen, the imposition of quotas will obviously discriminate against those Whites who have embarked upon a police career with the expectation of advancement only to be now thwarted because of their color alone. The impact of the quota upon these men would be harsh and can only exacerbate rather than diminish racial attitudes. See Vulcan Society v. Civil Serv. Comm’n, 360 F.Supp. 1265, 1277-1278 (S.D.N.Y.1973); Kaplan, Equal Justice in an Unequal World: Equality for the Negro—The Problem of Special Treatment, 61 Nw.U.L.Rev. 363, 375-80 (1966). Police morale is again a proper concern if the welfare of the whole community is to be considered. We see no purpose in curing a past mischief by imposing a new one which is deliberately tainted. We would strike from the judgment below therefore all quota requirements above the rank of patrolman. The district court has retained jurisdiction here to supervise the minority hiring and promotion procedures of the Department. In view of the careful attention and study which the court below has given to the question of eliminating the effects of the prior hiring discrimination, we remand to the court for consideration of other possible solutions which may be feasible and which will not create the inequities inherent in the imposition of quotas at higher levels. Two possible approaches are suggested. At the present time each police officer must spend three years in grade before becoming eligible for the next level. Thus a minimum of nine years must elapse before a patrolman can become a captain. While time-in-grade criteria have an obvious job relatedness, it may be that the time lapse at least for higher grades, may be shortened to some extent consistent with police efficiency. Similarly, seniority is given a weighting of 10% on promotion procedure. It may be that this factor can be either eliminated or its weight decreased. The record before us does not permit this court to make these decisions and we prefer to leave to the court below this determination providing that any feasible amendment apply to all candidates for promotion irrespective of race or ethnic background.

Affirmed in part, reversed in part and remanded.

      . Equal Employment Opportunity Act of 1972, Pub.L.No. 92-261, § 2(1)-(2), 86 Stat. 103 (March 24, 1972), amending 42 U.S.C. § 2000e(a)-(b) (1970). It is apparent from the legislative history of the Act that- Congress, by extending coverage to state and municipal employees, did not intend to divest federal courts of jurisdiction in cases under 42 U.S.C. § 1983 pending at the time of the enactment. See H.R.Rep.No.92-238, 92d Cong., 2d Sess., in 1972 U.S.Code Cong. & Admin.News p. 2137, 2154.

      . See Civil Service Provisions of the Bridgeport City Charter § 9. To maintain the status quo, the district court by an order dated Oct. 19, 1972, tolled the two-year validity period of the eligibility list effective on March 6, 1972, the date of a consent order prohibiting- the filling of vacancies pending the district court’s decision on the merits.

      . See, e. g., Castro v. Beecher, 459 F.2d 725, 729 (1st Cir. 1972) (Passing rates were 25% for Blacks, 10% for Spanish-surnamed individuals, and 65% for all others); Chance v. Board of Examiners, 458 F.2d 1167, 1171 (2d Cir. 1972) (Whites passed at 1% times the rate for Blacks and Puerto Rican candidates); Pennsylvania v. O’Neill, 348 F.Supp. 1084, 1089-1090, (E.D.Pa.1972), modified 473 F.2d 1029 (3d Cir. 1973) (en banc) (Whites passed at 1.82 times the rate for Blacks). See also Vulcan Society v. Civil Serv. Comm’n, 360 F.Supp. 1265, 1268-1270 (S.D.N.Y.1973).

      . While a mere discrepancy between a minority community population and employment population may not of itself be sufficient to establish a prima facie case of discrimination (see Logan v. General Fireproofing Co., 3 F.E.P. Cases 854, 856 (4th Cir. 1971); Harper v. Mayor & City Council, 5 F.E.P. Cases 1050, 1052-53 & n. 5 (D.Md.1973); Chance v. Board of Examiners, 330 F.Supp. 203, 214 (S.D.N.Y.1971), aff’d, 458 F.2d 1167 (2d Cir. 1972)), it does invite inquiry (see Castro v. Beecher, 334 F.Supp. 930, 935-936 (D.Mass.1971), modified, 459 F.2d 725 (1st Cir. 1972)), In some eases, courts have even found a substantial discrepancy sufficient to establish a prima facie case. E. g., Carter v. Gallagher, 452 F.2d 315, 323 (8th Cir. 1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972); Western Addition Community Organization v. Alioto, 330 F.Supp. 536, 539 (N.D.Cal.1971).

      . Bridgeport Hartford New Haven,

      Total population....... 156,542 158,017 137,707
      Blacks ............... 25,476(16%) 44,540(28%) 36,175(26%)
      Spanish speaking ..... 14,103(9%) 11,942(8%) 4,916(4%)
      Combined Black and Spanish speaking 39,579(25%) 56,482(36%) 41,091(30%)
      Total police department 469 483 434
      Black and Puerto Rican policemen ..... 17(3.6%) 66(14%) 57(13%)
      Personnel in police department above the rank of patrolman .. 117 139 126
      Blacks and Puerto Ricans in police ranks above patrolman _____ 1(1%) 22(16%) 13(10%)

      . Judge Weinfeld has recently recognized that “courts confronted with challenges to public employment examinations predicated upon the egual protection clause of the Fourteenth Amendment have generally agreed that the Guidelines issued by the EEOC provide persuasive standards for evaluating claims of job-relatedness. See, e. g., Castro v. Beecher, 459 F.2d 725, 729 (1st Cir. 1972); Carter v. Gallagher, 452 F.2d 315, 320, 326, adopted in relevant part, 452 F.2d 327 (8th Cir. 1971) (en banc), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972); Fowler v. Schwarzwalder, 351 F.Supp. 721 (D.Minn.1972); Pennsylvania v. O’Neill, 348 F.Supp. 1084 (E.D.Pa.1972), aff’d in relevant part by an equally divided court, 473 F.2d 1029 (3d Cir. 1973) (en banc); Western Addition Community Organization v. Alioto, 340 F.Supp. 1351 (N.D.Cal.1972); cf. Chance v. Board of Examiners, 458 F.2d 1167, 1176-1177 (2d Cir. 1972).” Vulcan Society v. Civil Serv. Comm’n, 360 F.Supp. 1265, 1273 n. 23 (S.D.N.Y.1973).

      . Thus the references in the examination questions to jail food bill (26), cartridges (27 & 33), burglar (41), patrol car (47, 81 & 105), arrests (48), police whistles (57), police clerks (58), disturbances of the peace (82), patrolmen and sergeants (106), and robberies (117) have no real relationship to the proper answer which is based on arithmetical computation and has no relevance to the policeman’s job responsibilities.

      . See United States v. Brown, 461 F.2d 134, 145 n. 1 (D.C.Cir.1972) (Bazelon, C. J., dissenting). But see United States v. Telfaire, 469 F.2d 552, 561-562 (D.C. Cir.1972) (Leventhal, concurring).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Clem H. BLOCK, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. Clem H. BLOCK and Katherine L. Block, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    Nos. 73-1112, 73-1113.
    United States Court of Appeals, Sixth Circuit.
    Argued June 8, 1973.
    Decided Aug. 7, 1973.
    Clem H. Block and Katherine L. Block, pro se.
    Arthur Bailey, Washington, D. C., for respondent-appellee; Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Donald H. Olson, Attys., Tax Div., Dept, of Justice, Washington, D. C., on brief.
    Before PHILLIPS, Chief Judge, LIVELY, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge.
   PER CURIAM.

This consolidated appeal involves the Tax Court’s determination of income tax deficiencies, fraud penalties and additions to tax for failure to pay estimated tax, aggregating over $135,000, for the years 1956 through 1962. The memorandum findings of fact and opinion of the Tax Court announced by Judge Samuel B. Sterritt, T. C. Memo 1972-130, are published at P. H. Memo T. C. If 72,130 (1972). Reference is made to that opinion for a comprehensive recitation of pertinent facts. '

Among other things, the Tax Court found that petitioner Clem H. Block, a licensed attorney who prepared tax returns for others, filed no return for himself in 1956, 1957, 1958, 1960 and 1961. Petitioner contends that he filed returns for those years, but was unable to produce copies. Petitioner filed returns for 1959 and 1962, made payments of estimated tax for the years 1958, 1960 and 1961 and filed partnership returns for his law firm for the years from 1956 to 1961.

The taxpayers assert that the underpayments of taxes for the years in question were not due to fraud and that, in any event, certain of the assessments proposed in the Commissioner’s deficiency notices are barred by the statute of limitations.

Among questions raised on appeal are these: (1) Whether the Tax Court correctly determined that the underpayment of income taxes by Clem H. Block for each of the years 1956 through 1962 was due to fraud; and (2) Whether the Tax Court correctly determined that, notwithstanding the applicability of the “Innocent Spouse” statute, Mrs. Block is jointly liable for a portion of the income tax deficiencies found for the years 1959 and 1962 because she and her husband signed and filed joint returns for those years.

We conclude that the findings of fact of the Tax Court are not clearly erroneous, Rule 52(a), Fed.R.Civ.P., but to the contrary are supported by substantial evidence. Commissioner v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960).

For the reasons stated in the opinion of the Tax Court, the decision of that court is affirmed.

      . Act of January 12,1971, P.L. 91-679, 84 Stat. 2063, 26 U.S.C. § 6013 (e).


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John OSORIO, Defendant-Appellant.
    No. 73-1630
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 25, 1973.
    Rehearing Denied Aug. 20, 1973.
    Emmett Colvin, Dallas, Tex., for defendant-appellant.
    Frank D. McCown, U. S. Atty., Fort Worth, Tex., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

We affirm this conviction of John Osorio for theft, embezzlement, and misapplication of funds from the bank, of which he was a director, and the employee pension plan, of which he was a trustee. 18 U.S.C.A. §§ 371 and 664.

The first four of appellant’s contentions on appeal may be dismissed as insubstantial. The admission of the testimony from the grand jury proceeding denied appellant neither his Fifth Amendment rights against self-incrimination nor his Sixth Amendment right to effective assistance of counsel. See United States v. Daniels, 461 F.2d 1076 (5th Cir. 1972). Appellant was not adversely prejudiced when the jury accidently saw him during a recess since the jury was properly admonished. The denial of the appellant’s request for venue change was within the discretion of the trial judge and that discretion was not abused. The Government did not suppress evidence within its knowledge at the time of trial which would be beneficial to the appellant. United States v. Keogh, 391 F.2d 138, 146-147 (2d Cir. 1968).

The appellant’s remaining arguments concern the intent required for a violation of 18 U.S.C.A. § 664. By analogy to 18 U.S.C.A. § 656, he argues that the investment of trust funds must be unreasonable, not just maladministration. In light of this Court’s holding in United States v. Moore, 427 F.2d 38 (5th Cir. 1970), we need not decide the question since sufficient evidence was available for a conviction even if specific intent were required. The trial court charged the jury

the defendant must embezzle, steal, or unlawfully and willfully abstract or convert to his own use or to the use of another, money, credits, property or other assets of an employee pension plan, benefit plan or employee retirement benefit plan. . . . [W]ill-fully is something that is done voluntarily and intentionally and with the specific intent to do something the law forbids. Therefore, with respect to the offense charged in this count, specific intent must be proved beyond a reasonable doubt before there can be a conviction.

Under this charge, the jury must have found specific intent. The evidence was sufficient to sustain the finding.

Affirmed.


text:
    UNITED STATES of America, Appellee, v. Arnold Marvin RANTA, Appellant.
    No. 73-1127.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 13, 1973.
    Decided Aug. 13, 1973.

      Peter J. Thompson, Minneapolis, Minn., for appellant.
    Earl Gray, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before CLARK, Associate Justice, HEANEY and BRIGHT, Circuit Judges.

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

   PER CURIAM.

Defendant Arnold Marvin Ranta was charged with two counts of violating 18 U.S.C. § 1708: (1) stealing a letter from the United States mail; and (2) knowing possession of a United States Treasury check unlawfully taken from the mail. A jury found Ranta guilty of the second count and he appeals his conviction. We affirm.

We relate the factual background underlying this conviction. Clayton Amundson, a disabled Vietnam veteran, was to receive “training allowance” cheeks from the United States Treasury while attending the University of Minnesota, Duluth Branch. At the University, Amundson lived in a two-bedroom trailer unit with three other students, defendant-Ranta, Hoene, and Trachsel. Ranta roomed with Amundson. Each of the four students had access to a single mailbox.

After failing to receive either his May or June Treasury checks, Amundson reported the losses. An investigation by the Secret Service disclosed that the May check had been cashed at a business establishment in Superior, Wisconsin, a city adjacent to Duluth. Amundson’s signature had been forged as an endorsement on this check. According to the manager of the business establishment, the check had been cashed by a University of Minnesota, Duluth, student. A Secret Service Identification Specialist identified defendant’s fingerprint on the May check.

Hoene, one of the other occupants of the trailer, when called as a witness for the prosecution, testified that he had forged the subsequent June Treasury check in Ranta’s presence and had discussed with Ranta the possible ways of cashing a government check owned by someone else.

The Secret Service agent investigating the case took handwriting exemplars from Amundson’s three roommates, including five pages of defendant-Ranta’s handwriting. . According to a Secret Service report, the government handwriting expert could not determine conclusively that Ranta’s handwriting was the same as that found on the forged check, nor could he exclude Ranta as the forger. Neither the prosecutor nor counsel for the defendant called the handwriting expert. Over defense objections, Ranta’s exemplars were submitted to the jury, and the jury was asked to compare them with the forged endorsement.

On this appeal Ranta contends that his handwriting exemplars should not have been admitted into evidence. The thrust of defendant’s argument is that admission of the exemplars was error because the jury should not be permitted to do that which the government’s handwriting expert could not do, i. e., reach the conclusion that the forged signature on the cheek was Ranta’s handwriting by comparing the signature with the exemplars. Defendant further alleges that the error was compounded by the prosecutor’s remarks to the effect that if the handwriting expert could have exculpated Ranta, defendant’s counsel would have called him. Ranta relies on several state cases to support his proposition that the exemplars were inadmissible.

Federal law specifically provides that: “The admitted or proved handwriting of any person shall be admissible, for purposes of comparison, to determine genuineness of other handwriting attributed to such person.” 28 U.S.C. § 1731. This circuit and other circuits have permitted the introduction of a defendant’s handwriting for purposes of comparison with handwriting attributed to him. See, e. g., Miller v. United States, 410 F.2d 1290 (8th Cir.), cert. denied, 396 U.S. 830, 90 S.Ct. 81, 24 L.Ed.2d 80 (1969); Strauss v. United States, 311 F.2d 926 (5th Cir.), cert. denied, 373 U.S. 910, 83 S.Ct. 1299, 10 L.Ed.2d 412 (1963); Desimone v. United States, 227 F.2d 864 (9th Cir. 1955). Ranta argues the inapplicability of § 1731 on the ground that the government did not show, as required by the statute, that “other handwriting” (here the endorsement on the check) was attributed to him. We disagree. The existence of Ranta’s fingerprint on the missing check sufficiently connected him with the forged endorsement contained thereon and provided adequate foundation to permit the jury to make the handwriting comparison. See Miller, supra, 410 F.2d 1290. Additionally, we do not think that the government has engaged in any unfair conduct by its failure to call the handwriting expert to the stand since the expert could have been called by the defense counsel if he had not chosen to forego that opportunity as a matter of trial strategy. The government had made arrangements to have this witness available for use by the defendant.

We have reviewed defendant’s claims on this appeal that the trial court permitted improper argument to the jury by the prosecutor and that the court erroneously admitted evidence of defendant’s complicity in another crime not charged in the indictment, i. e., Hoene’s forgery of the June check. We find these contentions to be without merit.

Affirmed.

      . E. g., State v. Simmons, 8 N.C.App. 561, 174 S.E.2d 627 (1970); Clark v. State, 114 So.2d 197 (Fla.App.1959); King v. State, 8 Ala.App. 239, 62 So. 374 (1913).


text:
    NATIONAL EMBLEM INSURANCE COMPANY, an Illinois Corporation, Plaintiff-Appellant, v. Samuel WASHINGTON, Defendant-Appellee, and Emmanuel Jones and Margaret Sanders, Defendants.
    No. 73-1119.
    United States Court of Appeals, Sixth Circuit.
    Argued June 14, 1973.
    Decided July 31, 1973.

      William A. Joselyn, Detroit, Mich., for plaintiff-appellant; Martin, Bohall, Jo-selyn, Haley & Rowe, Detroit, Mich., on brief.
    Robert Goren, Southfield, Mich., for defendant-appellee; Frimet, Goren & Bellamy, Southfield, Mich., on brief.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and PECK, Circuit Judges.
   PER CURIAM.

Plaintiff, National Emblem Insurance Co., appeals the dismissal of its declaratory judgment action. We affirm.

On March 29, 1964, defendant Samuel Washington was injured in an accident while a passenger in an automobile driven by plaintiff’s insured, Margaret Sanders, and owned by plaintiff’s insured, Emmanuel Jones. As a result of that accident, Washington gained a $311,000 verdict in Michigan state trial court against the plaintiff’s insureds. Plaintiff was not a party to this litigation.

The State court judgment included pre-judgment interest computed from the date of the filing of the complaint. M. S.A. § 27A.6013, M.C.L.A. § 600.6013. The judgment, after reversal by the Michigan Court of Appeals, was reinstated by the Michigan Supreme Court. Washington v. Jones, 386 Mich. 466, 192 N. W.2d 234 (1971). Approximately three weeks before re-entry of the judgment by the trial court in accordance with the Supreme Court’s mandate, the plaintiff filed the instant suit.

In this action, plaintiff seeks a declaration that the retroactive application of the State pre-judgment interest statute, M.S.A. § 27A.6013, M.C.L.A. § 600.6013, is violative of the Constitution’s Contract Clause. Art. I, § 10. The statute became effective after the accident and the filing of the State suit. The plaintiff also seeks a declaration of its liability to its insureds. The issue to be resolved here is whether the plaintiff is liable for interest on the entire $311,000 judgment or only for interest on the face amount of the policy, $10,000.

Subsequent to the filing of this suit, the State court plaintiff, Washington, filed garnishment proceedings in the State court to enforce his state court judgment. The plaintiff here is party to that action.

The applicable law in situations like this, where an insurer seeks a declaratory judgment in federal court while state litigation is pending concerning the same set of facts, was set forth in Brillhart v. Excess Insurance Co., 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942). In that case, Mr. Justice Frankfurter wrote for a majority:

“Where a District Court is presented with a claim such as was made here, it should ascertain whether the questions in controversy between the parties to the federal suit, and which are not foreclosed under the applicable substantive law, can better be settled in the proceeding pending in the state court. This may entail inquiry into the scope of the pending state court proceeding and the nature of defenses open there. The federal court may have to consider whether the claims of all parties in interest can satisfactorily be adjudicated in that proceeding, whether necessary parties have been joined, whether such parties are amenable to process in that proceeding, etc.” 316 U.S. at 495, 62 S.Ct. at 1176.

The Declaratory Judgment Act, 28 U.S.C. § 2201, does not confer any absolute rights on plaintiffs. It merely is an enabling statute conferring discretionary jurisdiction on the federal courts. Public Service Commission v. Wycoff Co., 344 U.S. 237, 241, 73 S.Ct. 236, 97 L.Ed. 291 (1952). Therefore, our inquiry is directed to a determination of whether the dismissal was an abuse of discretion. State Farm Mutual Insurance Co. v. Hilderbrandt, 446 F.2d 504 (6th Cir. 1971).

Plaintiff contends that because it was not a party to any pending state litigation on the date of the filing of the federal action, then the federal court should be forced to hear the suit.

We refuse to make the exercise of the discretionary declaratory judgment jurisdiction of the federal court dependent upon a race to the courthouse door. Though no State action was pending on the date of the filing of the federal suit, such a suit was inevitable. It should be noted that the suit for garnishment had not yet been filed at the time because the State judgment had not yet been formally re-entered. Interpretation of a State statute which has never been addressed by the Michigan Supreme Court was at issue. Both claims of the plaintiff insurer can be fully decided in the pending State garnishment proceeding with recourse eventually, on the constitutional issues, to the United States Supreme Court. The questions raised by the insurer could best be answered in State court.

The District Court’s dismissal of this action was not an abuse of discretion.

Affirmed.


text:
    Louis PHILLIPS, Petitioner-Appellant, v. Harold J. CARDWELL, Warden, Respondent-Appellee.
    No. 72-2131.
    United States Court of Appeals, Sixth Circuit.
    Argued June 12, 1973.
    Decided July 31, 1973.
    Leo H. Hildebrandt, Jr., (Court appointed) Cincinnati, Ohio, for petitioner-appellant.
    Jeffrey L. McClelland, Asst. Atty. Gen., for respondent-appellee; William J. Brown, Atty. Gen., Columbus, Ohio, on brief.

      Before PHILLIPS, Chief Judge, and WEICK and CELEBREZZE, Circuit Judges.
   PER CURIAM.

Petitioner seeks reversal of the District Court’s denial of the writ of habeas corpus. We affirm.

The Ohio state appellate courts reversed two counts of petitioner’s three-count narcotics conviction. State v. Phillips, 27 Ohio St.2d 294, 272 N.E.2d 347 (1971). Petitioner here attacks the validity of the conviction on the third count, conspiracy to possess narcotics, under which he is presently incarcerated.

On the afternoon of October 4, 1967, the Dayton narcotics squad kept an informer under surveillance as he entered the Stewarty Motel and purchased narcotics from one Charles Evans. Later that day, the informer again was given marked money and instructed to make another purchase in the motel. He made this purchase from Evans in Room 111 of the motel. Police viewed Evans go from Room 111 to Rooms 110-110a before delivering the narcotics to the informer. Evans was arrested after a field test of the opium derivative.

In connection with the Evans arrest, the Dayton police entered Rooms 110-110a and arrested four female suspects for possession of narcotics and began a search of the rooms. While this search was being conducted, petitioner entered Room 106 of the motel and was arrested and taken along with the other arrestees to Rooms 110-110a. The search continued there and a large quantity of heroin was recovered during this search.

Petitioner here attacks the constitutionality of the warrantless seizure of the heroin. He asserts there was no justification for the failure to obtain a warrant.

The search and seizure here was conducted in 1967, long before the Supreme Court’s decision in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The operative principles, therefore, are to be gleaned from pre-Chimel law because Chimel has been held to be prospective only. Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971). While Chimel severely restricted the scope of the search incident to arrest exception to the Fourth Amendment’s warrant requirement, the pre-Chimel law permitted seizure of material “under the accused’s immediate control . . . and . . . [extended] to the place where he is arrested.” (citations omitted). Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964).

Under pre-CMmei standards, it is apparent that the heroin seized in Rooms 110-110a was validly taken incident to the arrests of the four women made in Rooms 110-110a. Therefore, petitioner’s attack on the constitutionality of the seizure must fail.

Petitioner also claims that the failure to produce the informant or his identity at trial was constitutional error. The Supreme Court, in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), ordered the disclosure of an informant’s identity where his identity was highly material to the defendant’s case. However, this ruling was made in a case on direct appeal and in the Court’s supervisory jurisdiction, not as a matter of constitutional law. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). Because habeas corpus lies only for violation of the Constitution or laws of the United States, it is highly doubtful whether a claim under Roviaro is cognizable in habeas corpus.

Even assuming that the claim is cognizable, however, it is without merit. Roviaro does not mandate disclosure of an informant who was not a participant in or witness to the offense charged. See United States v. Skeens, 145 U.S.App.D.C. 404, 449 F.2d 1066, 1071 (1971) and cases cited therein. The offense which petitioner was convicted of was conspiracy and the informant was not a participant in or witness to the conspiracy. Hence, the testimony of the informant could not have been highly material to the defendant’s case. United States v. Barnett, 418 F.2d 309 (6th Cir. 1969). Affirmed.


text:
    Michael J. CALLAHAN, Plaintiff-Appellant, v. FLUOR OCEAN SERVICES, INC. and Liberty Mutual Insurance Company, Defendants-Appellees.
    No. 73-1517
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 17, 1973.
    William M. Bass, Houma, La., Donald V. Organ, New Orleans, La., for plaintiff-appellant.
    Frank C. Allen, Jr., New Orleans, La., for defendants-appellees.

      Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

The plaintiff in this case brought suit under the General Maritime Law and the Jones Act to recover for injuries he sustained while he was being lifted onto a fixed drilling platform in the Gulf of Mexico. The district court granted summary judgment for the defendants on both claims. We affirm.

Shell Oil Company had contracted with the defendant, Fluor Ocean Services, Inc., to have the defendant'install production facilities on three new offshore platforms in the Gulf. Shell then contracted with the Cheramie Boat Company to have Fluor’s workers on the platform at which the injury in this case occurred transported there aboard the Botruc II, a large crewboat owned by Cheramie. Callahan, a painter’s helper employed by Fluor, was injured the first day of work. Callahan and a co-worker got into a large cargo basket to be lifted by a crane to the platform. While the basket was being raised some mechanical or operational misfunction of the crane caused the basket to fall rapidly toward the deck of the Botruc II. The crane operator jammed on the brakes bringing the falling basket to a sudden halt. Callahan fell to the deck of the Botruc II and sustained serious injuries.

The district court denied Callahan’s maritime law claim on the ground that Fluor was not an owner of the Botruc II for the occasion in question. He was, therefore, not liable for the unseaworthiness of the vessel. It then held that the determination that Fluor was not an owner for the occasion of the vessel was conclusive not only of Callahan’s unseaworthiness claim but of his Jones Act claim as well. We agree that Fluor cannot be held to have been the owner for the occasion of the Botruc II, and that that fact defeats Callahan’s common law claim. However, we cannot agree that a failure to establish that Fluor enjoyed sufficient control of the vessel to be held an owner for the occasion necessarily defeats the Jones Act claim. Control of the operation during which an injury is sustained may sometimes suffice to establish Jones Act liability. See Barrios v. Louisiana Construction Materials Co., 5 Cir. 1972, 465 F.2d 1157.

However, we find another ground for affirming the grant of summary judgment on the Jones Act claim. Fluor had argued in support of its motion for summary judgment that there was not sufficient evidence that Callahan was a seaman entitled to sue under the Jones Act to send the case to the jury. The district court did not reach this contention, because of its holding that Fluor did not have sufficient control of the vessel to be liable under the Jones Act. We reach the contention; and sustain it. The rule in this Circuit for determining when a jury may decide whether a plaintiff is a seaman is well-settled. That rule was announced in Offshore Co. v. Robison, 5 Cir. 1959, 266 F.2d 769, 779:

[T]his Court’s position may be stated, affirmatively: there is an evidentiary basis for a Jones Act case to go to the jury: (1) if there is evidence that'the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips.

We have repeatedly held that fixed drilling platforms like the one on which the plaintiff worked are not vessels. Texas Co. v. Savoie, 5 Cir. 1957, 240 F.2d 674, cert. denied, 355 U.S. 840, 78 S.Ct. 49, 2 L.Ed.2d 51; Nolan v. Coating Specialists, Inc., 5 Cir. 1970, 422 F.2d 377. Clearly Callahan was not permanently assigned to the Botruc II and did not perform a substantial part of his work on that vessel; nor did his employment as a painter’s helper on the platform contribute either to the function of the Botruc II or to the welfare of the vessel during its movement. Callahan was only a passenger on the crew-boat twice daily. There was thus no evidence on which a jury could have found he was a seaman, and summary judgment was proper.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Frank FALLINGS, Defendant-Appellant.
    No. 73-1220
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 23, 1973.

      Murray M. Silver, Atlanta, Ga., Court-appointed, for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., Eugene A. Medori, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

John Frank Fallings was convicted on two counts of distributing narcotics in violation of 21 U.S.C.A. § 841(a)(1). His arrests came after an undercover agent working with the federal office of Drug Abuse Law Enforcement, led to the defendant by an informant, made two separate purchases of heroin. We affirm.

(1) Defendant’s counsel elicited from Detective Price, a government witness, that positive identification of Fall-ings was made through the files of the Atlanta Police Department. Motion for mistrial was denied. On appeal, the defendant relies on United States v. Reed, 376 F.2d 226 (7th Cir. 1967), where repeated references by government witnesses to their use of mug shots taken of the defendant while in prison as a means of identification led to reversal. Those revelations were made under direct examination during the Government’s ease in chief, and no cautionary instructions were given. Reed is readily distinguishable: in Fallings’ case, the evidence was not presented by the Government, but came on cross examination by the defense. No mention was made of a criminal record or imprisonment. The jury was properly instructed to disregard the reference. Even if this could be considered error, its prejudicial effect was removed when defendant took the stand and testified as to his previous felony conviction. See Lloyd v. United States, 412 F.2d 1084, 1087 (5th Cir. 1969).

(2) Defendant contends that the Government should have produced the informant. When the District Court decided that the identity of the informer was required under Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the Government promptly divulged the informer’s name. His whereabouts were unknown to the Government. The Government was under no obligation to produce the informant. See Clingan v. United States, 400 F.2d 849 (5th Cir. 1968). The defendant admitted knowing the informant, but could not locate him. No request was made of the Government to assist in locating the informant.

(3) The trial court did not err in refusing to grant defendant’s request to charge the jury that an officer has the duty to arrest without a warrant for a crime committed in his presence. Defendant alleges that the failure to arrest him after the first sale resulted in an “entrapment” to build a long prison record. The Government agents, making more than one purchase were attempting to determine whether the defendant was in fact a dealer in drugs. This is consistent with good law enforcement. In any event, the defendant received concurrent sentences on the two convictions.

Affirmed.


author: VAN SICKLE, District Judge.

text:
    UNITED STATES of America, Appellee, v. Francis Duane OSBORNE and Donald Dean Ledford, Appellants.
    No. 72-1545.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 15, 1973.
    Decided Aug. 15, 1973.
    W. J. Giles, III, Sioux City, Iowa, for appellants.
    Gary E. Wenell, Asst. U.S. Atty., Sioux City, Iowa, for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and VAN SICKLE, District Judge.

       Sitting by designation.

   VAN SICKLE, District Judge.

The defendants herein were convicted of criminal conspiracy, interstate transport of a forged security, and interstate transportation of stolen cattle, violations of Title 18 U.S.C. §§ 371, 2314 and 2516 respectively.

They have taken this timely appeal alleging certain errors:

1) Appellants urge that failure to include eighteen year olds in the array of grand and petit jurors who considered these matters violated the appellants’ rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. The conduct under indictment occurred September through December 1971. The indictment was dated June 5, 1972. The case was tried beginning on July 19, 1972.

Thus it falls within the period between the ratification of the Twenty-sixth Amendment to the Constitution, which lowered the voting age to eighteen, but before the effective date of Public Law 92-269, § 1; 86 Stat. 117, which inter alia amends 28 U.S.C. § 1865(b) (1) by lowering the age for service on federal juries to eighteen.

This question has been decided against appellants’ position, United States v. Olson, 473 F.2d 686 [8th Cir. 1973], and needs no further discussion here.

2) The defendants were identified by witnesses who had examined photographic arrays.

The photographic arrays .. were presented to the witnesses after indictment and without counsel for the defendants being present or being given a chance to check the photographs included in the arrays. Appellants argue that the identification was invalid because it violated defendants’ right to counsel under the Sixth Amendment to the Constitution of the United States, and it was unfair because there was only one person in each array who matched the description of the suspect. The arrays are exhibits numbered 3A through 31 and exhibit 4A in the principal ease. The record reflects in-court identifications, and recites the witnesses’ verbal descriptions of the defendants. These descriptions are particularly meaningful because one of the defendants was partially bald at the time of trial, although he had worn a hairpiece and facial hair at the time of the conduct complained of.

In their brief, appellants agree, and we agree with them, that the questions raised here are resolved by the United States Supreme Court in United States v. Charles J. Ash, Jr., 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 [1973]. The Supreme Court there held that the Sixth Amendment does not grant the right to have counsel present at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender.

As to the problem of fairness in these particular displays, examination of exhibits 3 and 4A, and the photographs in each group, when tested against the verbal descriptions of the witnesses as reflected by the transcript show that several persons in the photographs do fall within the descriptions given by witnesses.

3) Defendants were compelled to submit handwriting exemplars. This was claimed to violate defendants’ Fifth Amendment right against self incrimination, and defendants’ Fourth Amendment right against unreasonable search and seizure. Those claims are resolved against the defendants by two recent United States Supreme Court decisions, United States v. Dioniso, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67, and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99, both decided in January 1973.

4) By separate letter, the defendants raised objection to a series of incidents occurring during the trial which they assert demonstrated that they failed to receive a fair trial. We have reviewed those assertions and find they have no merit.

The judgment is affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Floyd Ray PHILLIPS, Defendant-Appellant.
    No. 73-1247.
    United States Court of Appeals, Ninth Circuit.
    Aug. 6, 1973.

      Charles A. Schaaf (argued), Seattle, Wash., for defendant-appellant.
    Irwin Schwartz, Asst. U. S. Atty. (argued), Stan Pitkin, U. S. Atty., Laurence B. Finegold, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee.
    Before D UNI WAY and CHOY, Circuit Judges, and MURRAY, District Judge.

       Honorable W. D. Murray, Senior United States District Judge, District of Montana, sitting by designation.

   PER CURIAM:

This case involves the nondisclosure of alleged Jeneks Act material, in Phillips’ trial for bank robbery.

The government called a witness named Pechac who testified that during a time period when he bought stolen goods from the defendant, he had a meeting with defendant at which time the defendant asked Pechac’s help in an attempt to recover the bank robbery proceeds from a man named Lynch. Pechac had signed receipts for payments made to him by the Federal Bureau of Investigation, including one made to him on the day he gave the Federal Bureau of Investigation the information about which he testified at trial. These receipts were not given to defense counsel as Jeneks Act statements, and Pechac was not cross-examined for interest on these grounds.

Defense counsel argues that had he known of these receipts, he could have impeached Pechac’s testimony, thus making the government’s chances of conviction less likely. Defense counsel moved to strike Pechac’s testimony. His motion was denied. His motion for a new trial was also denied.

The government concedes that “receipts” may qualify as statements under the Jeneks Act, 18 U.S.C., Sec. 3500 (e), if they meet the further requirement of subsection (b), i. e. they must be statements which relate to the subject matter as to which the witness has testified. Killian v. United States, 368 U.S. 231, 242, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961). In light of the fact that the witness Pechac was paid on the same day he gave information on this case, the receipts probably should have been produced and the jury allowed to decide whether or not the receipts “related” to Pechac’s direct testimony. The failure to require production of the receipts, however, was harmless for the following reasons: (1) As was found by the trial court in denying the motion for a new trial “It is clearly established by the record that the defendant had independent information which indicated the witness had been a police informant. This information was available prior to the time of the witness’ testimony.” (2) Although the defense was aware of Pechac’s activity as an informant, defense counsel chose not to use this information to impeach Pe-chac’s credibility on cross-examination. (3) The trial judge instructed the jury “I will further state that the witness, Hubert Michael Pieehek (sic), has been paid by the United States for information provided in other cases. You may consider that to be a proven fact.” (4) The government submitted an affidavit of F.B.I. agent Stephen Chenoweth in which Mr. Chenoweth states that prior to this trial, Pechac had been paid by the F.B.I. twice for information provided. The affidavit states that the information for which he was paid was unrelated to this case. Since the' defense has offered nothing to contradict this and since the jury was instructed concerning payoffs in other cases, any value the receipts would have would be cumulative. (5) Pechac’s testimony was not crucial to the government’s case. He testified about some incriminating statements made to him by the defendant. As such, his testimony was corroborative of the key witness and accomplice, Thomas Lynch, and the witness Karen Lolley. A similar case of harmless error in regard to the nonproduction of Jencks Act material was presented to the 8th Circuit Court. That court, in Kane v. United States, 431 F.2d 172, 175 (8th Cir. 1970), stated: “Assuming arguendo, that there was in fact a Section 3500 statement made, there is no rational basis for holding that appellants were prejudiced by the failure of the court to order its production. The testimony of witness Holmes was cumulative at best. It was not crucial or vital to the Government’s case. Appellants were positively identified by other witnesses — Kane by six, Wilson by five. Here, if ever, the harmless error rule, applicable as it is to § 3500, must be invoked.”

Phillips argues that the trial judge unduly restricted his cross-examination of Pechac. The testimony that appellant sought to elicit was collateral, and there was substantial other evidence admitted which tended to impeach Pechac. Under these circumstances, the judge’s curtailment of the cross-examination was not an abuse of discretion. See United States v. Carrion, 9 Cir., 1972, 433 F.2d 704, 707; Enciso v. United States, 9 Cir., 1967, 370 F.2d 749, 751.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lorraine L. LOWE, Defendant-Appellant.
    No. 73-1090.
    United States Court of Appeals, Sixth Circuit.
    Argued June 5, 1973.
    Decided July 31, 1973.

      Albert Best (court appointed), Detroit, Mich., for defendant-appellant; Littky & Mallon, Detroit, Mich., on brief.
    John Patrick Conley, Asst. U. S. Atty., Flint, Mich., for plaintiff-appel-lee; Ralph B. Guy, Jr., U. S. Atty., Ralph J. Heikkinen, Asst. U. S. Atty., Detroit, Mich., on brief.
    Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and MOYNAHAN, District Judge.

       The Honorable Bernard T. Moynahan, Jr., Chief Judge, United States District Court for the Eastern District of Kentucky, sitting by designation.

   PER CURIAM.

On July 7, 1972 the federal grand jury in Detroit, Michigan returned a three-count indictment against Lorraine L. Lowe charging her with unlawfully uttering and publishing three forged United States Savings Bonds in violation of 18 U.S.C. § 495. She entered a plea of not guilty at her arraignment on July 20, 1972. Lowe appeared again on September 7, 1972 and, while accompanied by competent counsel, changed her plea to guilty to Count Two of the indictment. Thereafter the District Court imposed a two year sentence on December 7, 1972. Lowe’s subsequent request for an opportunity to examine the presen-tence report was denied and this appeal followed. It is contended that the sentence was so harsh as to amount to an abuse of discretion and that appellant’s constitutional rights to due process and the assistance of counsel were denied when she was not permitted to view the presentence report. We reject both contentions.

This Court has long declined to interfere in a district court’s imposition of sentence except in the most extraordinary circumstances. In United States v. Latimer, 415 F.2d 1288 (6th Cir. 1969), we had occasion to state the position which we reaffirm today. There we stated: “The sentencing of one convicted of a crime is largely dependent on matters which are within the knowledge, experience and judgment of the sentencing court. For this reason the District Courts are given broad discretion in assessing punishment within the limits of the various federal statutes. On appeal this Court will not disturb that sentence unless there has been a gross abuse of discretion.” 415 F.2d at 1290.

Congress has provided that whoever violates 18 U.S.C. § 495 shall be fined not more than $1,000 or imprisoned not more than ten years, or both. The sentence imposed by the District Court is well within the statutory limits and certainly cannot be said to be an abuse of discretion.

Appellant’s second contention raises the issue of whether a criminal defendant has a right to examin'e a presentence report. If appellant has this right, it must be found in the Constitution. The Federal Rules of Criminal Procedure are clear in indicating that a defendant has no such absolute right. Rule 32(c)(2), Fed.R.Crim.P., provides that a district judge may disclose all or part of the material contained in the presentence report. This has been uniformly interpreted as granting discretion to the trial court in determining whether a defendant should be permitted to examine the report. 2 Wright, Federal Practice and Procedure § 524.-

No reported decision of this Court on this constitutional isspe has been found. We follow the sound reasoning expressed by several other Circuits in rejecting this contention of appellant. See United States v. Stidham, 459 F.2d 297 (10th Cir. 1972); United States v. McKinney, 450 F.2d 943 (4th Cir. 1971); United States v. Warren, 432 F.2d 772 (5th Cir. 1970); Fernandez v. United States, 432 F.2d 426 (9th Cir. 1970). Contra, Verdugo v. United States, 402 F.2d 599, 613 (9th Cir. 1968) [concurring opinion of Judge Browning], cert. denied, 402 U.S. 961, 91 S.Ct. 1623; 29 L.Ed.2d 124 (1971).

Affirmed.

        . See United States v. Daniels, 446 F.2d 967 (6th Cir. 1971); United States v. Latimer, 415 F.2d 1288 (6th Cir. 1969).

      . In an analogous situation the Supreme Court held that the Due Process Clause of the Fourteenth Amendment does not prohibit a state judge from relying on responsible information in a presentence report even though the defendant has not had an opportunity to confront those persons providing the information. Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); cf. Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Horton J. BROWN, Defendant-Appellant.
    No. 73-1461.
    United States Court of Appeals, Ninth Circuit.
    Aug. 17, 1973.
    Murray B. Guterson (argued), of Culp, Dwyer, Guterson & Grader, Seattle, Wash., for defendant-appellant.
    J. Ronald Sim, Asst. U. S. Atty. (argued), Stan Pitkin, U. S. Atty., Susan L. Barnes, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee.
    Before CHAMBERS, WRIGHT and KILKENNY, Circuit Judges.
   PER CURIAM:

Defendant Horton J. Brown appeals from conviction on 17 counts of violations of 18 U.S.C. § 1001 and one count of violation of 18 U.S.C. § 371 (conspiracy to violate § 1001). He received concurrent three year sentences on each count, the sentences to be suspended conditioned upon defendant spending six months in a jail-type institution and being placed on probation for an additional period of two and one-half years. He was also fined $5,000 on each count, with the fines suspended as to all but one count.

Defendant raises two contentions on this appeal, neither of which has merit. He first argues that the indictment should have been brought under either 18 U.S.C. § 1010 or § 1012. instead of § 1001.

We disagree.

The indictments charged defendant with knowingly making false, fictitious and fraudulent statements and representations in the submission of several fictitious' bids for construction on property owned by the Department of Housing and Urban Development (HUD). Assuming, as defendant argues, that this conduct constitutes a violation of either § 1010 or § 1012, we find no indication in the legislative history that Congress, by creating a specific HUD false claim statute, intended to disallow use of the more general false statement statute, § 1001, with its harsher penalties. Cf. Kniess v. United States, 413 F.2d 752 (9th Cir. 1969).

This case thus falls under the general rule that where a single act violates more than one statute, the government may elect to prosecute under either. United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598 (1941); United States v. Chakmakis, 449 F.2d 315 (5th Cir. 1971); Ehrlich v. United States, 238 F.2d 481 (5th Cir. 1956).

The defendant also contends that the government failed to prove that the bids were submitted in a matter within the jurisdiction of HUD, as required by § 1001. Viewing the evidence in the light most favorable to the government, as we are required to do, we conclude that there was sufficient evidence before the jury to support a finding beyond a reasonable doubt that the property in question was indeed owned by HUD.

The judgment appealed from is affirmed.

      . § 1001.
      Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,-000 or imprisoned not more than five years, or both.

      . § 1010.
      Whoever, for the purpose of obtaining any loan or advance of credit from any person, partnership, association, or corporation with the intent that such loan or advance of credit shall be offered to or accepted by the Department of Housing and Urban Development for insurance, or for the purpose of obtaining any extension or renewal of any loan, advance of credit, or mortgage insured by such Department, or the acceptance, release, or substitution of any security on such a loan, advance of credit, or for the purpose of influencing in any way the action of such Department, makes, passes, utters, or publishes any statement, knowing the same to be false, or alters, forges, or counterfeits any instrument, paper, or document, or utters, publishes, or passes as true any instrument, paper, or document, knowing it to have been altered, forged, or counterfeited, or willfully overvalues any security, asset, or income, shall be fined not more than $5,000 or imprisoned not more than two years, or both.

      . § 1012.
      Whoever, with intent to defraud, makes any false entry in any book of the Department of Housing and Urban Development or makes any false report or statement to or for such Department; or
      Whoever receives any compensation, rebate, or reward, with intent to defraud such Department or with intent unlawfully to defeat its purposes ; or
      Whoever induces or influences such Department to purchase or acquire any property or to enter into any contract and willfully fails to disclose any interest which he has in such property or in the property to which such contract relates, or any special benefit which he expects to receive as a result of such contract- — ■
      Shall be fined not more than $1,000 or imprisoned not more than one year, or both.


text:
    UNITED STATES of America, Appellee, v. William Carl TRUELOVE, Appellant.
    No. 72-2495.
    United States Court of Appeals, Fourth Circuit.
    Submitted June 25, 1973.
    Decided Aug. 9, 1973.
    S. Earl Griffin, Portsmouth, Va., on brief for appellant.
    Brian P. Gettings, U. S. Atty., and Michael A. Rhine, Asst. U. S. Atty., on brief for appellee.
    Before BOREMAN, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges.
   PER CURIAM.

In this appeal William Carl Truelove challenges a sentence of imprisonment for five years. The sentence was imposed following his guilty plea to an information charging him with unlawfully facilitating the transportation and concealment of marijuana without having paid the tax thereon in violation of 26 U.S.C. § 4744(a). The maximum penalty under this statute is ten years confinement and a fine of $20,000. A co-defendant who was sentenced by a different judge was placed on probation.

The only assignment of error is that the judge acted improperly in sentencing Truelove to a five-year term whereas another judge granted probation to a co-defendant who plead guilty to a similar charge. In the absence of the most exceptional circumstances, a sentence that does not exceed the statutory limits is within the sole discretion of the trial judge and an appellate court has no authority to review it. United States v. Wilson, 450 F.2d 495 (4 Cir. 1971); United States v. Godel, 361 F.2d 21 (4 Cir. 1966); United States v. Pruitt, 341 F.2d 700 (4 Cir. 1965).

The case of United States v. Wiley, 278 F.2d 500 (7 Cir. 1960), relied on by Truelove, is clearly distinguishable. The facts appearing in the record before us do not point convincingly to the conclusion that the district court, without justification, arbitrarily singled out Truelove for the imposition of a more severe sentence than that imposed upon his co-defendant. The co-defendant who was placed on probation was a twenty year old who was already serving an indeterminate sentence under the Youth Corrections Act. The defendant, who was twenty-six years old, had only six months remaining on a state prison term he was serving at the time of federal sentencing. The record indicates that the two judges gave careful consideration to the sentencing; there was sufficient reason not to incarcerate the co-defendant further and to require that Truelove be confined for more than the unexpired portion of his state sentence.

Accordingly, we dispense with oral argument and affirm the judgment.

Affirmed.