author: FRED M. TAYLOR, District Judge:

text:
    Marvin L. COOLEY, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.
    No. 73-3532.
    United States Court of Appeals, Ninth Circuit.
    Aug. 2, 1974.

      Thomas C. Kleinschmidt (argued) of Federal Public Defenders, Phoenix, Ariz., for defendant-appellant.
    Thomas N. Crowe (argued) Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appel-lee.
    Before CHAMBERS and BROWNING, Circuit Judges, and TAYLOR, District Judge.

       Of The District of Idaho, sitting by designation.

   OPINION

FRED M. TAYLOR, District Judge:

The appellant, Marvin L. Cooley, was convicted of wilfully and knowingly failing to file a federal income tax return for each of the years 1968, 1969 and 1970 in violation of Title 26 U.S.C., § 7203. Appellant was sentenced to a term of imprisonment of one year and fined in the amount of $2,000.00 on each count.

The appellant voluntarily chose to represent himself at all times in the trial court, but on this appeal he is represented by counsel appointed at his request subsequent to the conclusion of the proceedings in the lower court. The issues, which have been raised and presented here, will be considered seriatim.

One of the contentions now made by appellant is that the trial court erred in allowing him to represent himself without first determining whether the waiver of counsel was competently and intelligently made. We find this contention has no merit.

The record reveals that appellant was and is a mature, intelligent and well-informed individual; that he was especially well informed in regard to income tax matters, the charges against him and the possible consequences if convicted in regard thereto. Also, it appears that appellant was knowledgeable, experienced and competent in regard to the legal proceedings in connection with the charges against him. It clearly appears from the record that appellant not only refused the court’s offer to appoint counsel for him, but that he knew of his right to represent himself and insisted on doing so. The court could not properly deny him that right. Title 28 U.S. C. § 1654; Hodge v. United States, 414 F.2d 1040, 1042 (9th Cir. 1969).

We are then confronted with the question of whether the appellant eompetently and intelligently asserted the right to represent himself. In Hodge, a majority of this court, in banc, stated at p. 1042:

“In this context we take this to mean whether he was sufficiently informed of the consequences of his choice.”

Also in Hodge at p. 1043, the court asserted :

“The question was simply whether the defendant understood the charges against him and was fully aware of the fact that he would be on his own in a complex area where experienced and professional training are greatly to be desired.”

In our opinion, that question in this case must be answered in the affirmative. In reaching this conclusion, we have examined and relied upon the record as a whole, as we may properly do. Hodge, supra, at 1043 n. 4.

The appellant relies principally on United States v. Dujanovic, 486 F.2d 182 (9th Cir. 1973) as his authority for the proposition that his waiver of counsel is not adequately reflected in the record. We do not believe that Dujanovic is dis-positive of this case since the factual situation in that case was inapposite to the one here. Appellant contends that under Dujanovic, it is not sufficient that waiver appear from the record as a whole. Appellant relies upon two statements in the Dujanovic opinion: (1) that it is a “minimal requirement” that the district court “shall not grant a request to waive counsel and proceed pro se without addressing the accused personally and determining on the record that the demand to waive counsel and proceed pro se is competently and intelligently made with understanding of the nature of the charge and the penalties involved”; and (2) that “[njothing whatsoever can thereafter occur during the pilotless journey which will evidence the state of mind of the accused or information at hand upon which he at that time intelligently waived his constitutional right of counsel.” 486 F.2d at 186.

The first statement is obviously admonitory rather than á rule of decision. See 486 F.2d at 188 n. 2. While the procedure described may be preferred, its omission is not, per se, reversible error, where it appears from the whole record that the defendant knew his rights and insisted upon representing himself. We understand the second statement to mean only that the manner in which the defendant conducts his defense cannot conclusively establish his state of mind at the time of waiver.

It should be noted that even in Duja-novic, the panel examined three distinct portions of the record for the purpose of determining whether there had been a waiver of counsel. Also, the panel recognized the rule as announced in Hodge, supra, 414 F.2d at 1042 n. 2, that the determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.

The appellant contends that the instructions on the issue of wilfulness were inadequate and incorrect for the reason that the court did not include the words “bad intent” or “evil motive” as requested. He argues that United States v. Bishop, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973) required the trial court to include the requested language. We do not agree. The court clearly instructed the jury in regard to the applicable law and the meaning of “wilful” even though the language used did not include “bad intent” or “evil motive.” The instructions given by the court were in substantial compliance with Bishop and appellant’s requested instruction would not have added anything. Numerous courts have rejected claims that wilfulness instructions must include the terms “bad intent” or “evil motive”, the most recent pronouncement being by a panel of this court in United States v. Hawk, 497 F.2d 365 (1974). In Hawk, the court stated:

“While the use of such terms is often helpful, all that is required are instructions which communicate the proper notion of specific intent in understandable terms.”

The instructions given in this case were indeed adequate for this purpose.

Appellant next argues that the trial court committed reversible error in refusing to admit in evidence a copy of a letter appearing in the Congressional Record, an Internal Revenue Service Training Manual, and several opinions of the United States Supreme Court in support of appellant’s position at trial that he did not act “wilfully”. The thrust of his argument is that he relied on these matters in determining that he was not required to file 1040 income tax returns as required by the statute. After considerable discussion with the court, at the bench and during the absence of the jury, the court at recess reviewed the material offered and concluded that they did not contain any relevant information on the issue of whether the appellant should or should not file completed tax returns. We agree that the offered material was immaterial and should not have been admitted as evidence. In the orderly trial of a case, the law is given to the jury by the court and not introduced as evidence. It is the function of the jury to determine the facts from the evidence and apply the law as given by the court to the facts as found by them from the evidence. Obviously, it would be most confusing to a jury to have legal material introduced as evidence and then argued as to what the law is or ought to be.

Haigler v. United States, 172 F.2d 986 (10th Cir. 1949), relied on by appellant, is not authority on the question of whether copies of court decisions are admissible as evidence. It is also distinguishable in that the defendant there was prevented from testifying in regard to his understanding of the law and the jury was instructed that his ignorance of the law was no excuse. The record here shows that appellant was permitted to testify in regard to his conversations with employees of the Internal Revenue Service and in regard to his understanding of his rights under the law and Constitution. In addition, the trial court carefully instructed the jury in regard to appellant’s good faith reliance upon his own interpretation of the law.

Finally, appellant claims that the sentence imposed was so excessive as to be cruel and unusual, even though within the statutory limits.

“It is well settled that a sentence within a valid statute cannot amount to ‘cruel and unusual punishment’, and that when a statute provides for such punishment, the statute only can be attacked. It is equally clear that the appellate court has no power to modify or reduce the sentence. ‘ “If there is one rule in the federal criminal practice which is firmly established, it is that the appellate court has no control over a sentence which is within the limits allowed by statute.” Gur-era v. United States, 8 Cir., 1930, 40 F.2d 338, 340.’ Pependrea v. United States, 275 F.2d 325, 329, 330 (9th Cir. 1960); see also: Bowman v. United States, 350 F.2d 913, 917 (9th Cir. 1965).”

We are confident that the experienced sentencing judge gave due consideration to all the facts and circumstances involved in this case before imposing the sentence on appellant. We do not find the sentence so excessive as to be cruel and unusual.

After carefully reviewing the record in this case, we are of the opinion that appellant was accorded a fair and impartial trial and that he represented himself as intelligently and competently as he might have been by an experienced attorney.

Having found no reversible error in the record, the judgment is affirmed.

      . That section provides in pertinent part:
      “Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return . . ., keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor. . . .”

      . The record shows :
      The appellant first appeared before the district court, Judge Craig presiding, on July 17, 1972 at which time he asserted that he intended to represent himself. The court advised appellant that in the event he did not have sufficient funds with which to hire an attorney, he would appoint one for him. Appellant then stated that he had not decided just what he would do in that area, but at the moment he wished to represent himself. Prior to his appearance on this date, he had filed a motion to disqualify Judge Craig on the basis of bias and prejudice, which motion was assigned to Judge Muecke for hearing, and further proceedings on the motion were continued for 30 days. At this time, appellant requested 30 days within which to file a motion to dismiss the information which was granted by the court and no plea was required at that time. The matter was continued until September 18.
      On September 25, 1972, appellant again appeared in court before Judge Craig, at which time he was given a copy of the three count information and advised of the consequences in the event he was convicted on the charges. Appellant stated that he understood what he was charged with and stated to the court that before he entered his plea, he would like to have the matter presented to a grand jury because of the possible penalties involved. The court advised appellant that the charge in each count was a misdemeanor, but appellant argued that because of the three counts, he was facing three years in prison and a possible $30,000 fine in addition to the cost of prosecution. At that time, the court asked the Assistant U. S. Attorney to refer the matter to the grand jury and the matter was continued to November 20.
      On November 20, 1972, appellant again appeared before Judge Craig for arraignment and for hearing on his motion for inspection of grand jury minutes and discovery. After considerable discussion in regard to discovery, appellant was assured the government would show Mm what evidence it had and the names of the witnesses it intended to have at trial. Having been furnished with a copy of the indictment, appellant stated to the court that he planned to file a motion to dismiss after he viewed the District Attorney’s file. The court assured him that he would be granted time to do so, but requested that he enter his plea at that time. Appellant stated that he preferred to stand mute and after some colloquy between the court and appellant, the court entered a plea of not guilty for him.
      Appellant’s motion to disqualify Judge Craig came on for hearing before Judge Muecke on September 5, 1972. The motion was based upon the alleged criticism and dissatisfaction expressed by Judge Craig in regard to allowing other defendants to represent themselves in similar tax cases. Appellant sought to establish that Judge Craig assigned a public defender to Victor George Peterson in another case without listening to Peterson trying to assert that he wanted to defend himself. He stated that he personally witnessed the proceedings in connection with Peterson and that if he (Cooley) wanted to defend himself in Judge Craig’s court, he did not want to be harassed and intimidated and virtually called a fool because he elected to do so.
      Again, at the continued hearing on appellant’s motion to disqualify Judge Craig held on September 27, he expressed his intention to represent himself and stated that he should have extended to him the same courtesies extended to other or regular attorneys in these matters. The court again advised appellant that he was in an area where he needed professional competence. The court further observed that appellant and other persons similarly situated misunderstood, in his opinion, the legal issues involved. The motion to disqualify Judge Craig was denied.
      Prior to trial, appellant sought to suppress as evidence certain statements previously made to law enforcement agents. The court indicated its displeasure with the untimeliness of the motion by stating: “See, you chose to represent yourself and you are entitled to have a lawyer”. The defendant acknowledged his understanding of that fact as well as his right to make the motion. The Honorable W. D. Murray, Senior United States District Judge, presided at and during the trial.
      On the hearing of appellant’s motion for a new trial and proceedings on sentencing, the appellant restated his understanding of and his insistence to proceed pro se by stating: “Your Honor, as to proceeding pro se, I guess there is no doubt that I have the right to do that and I submit that I would probably be in jail before now if I had gone any other way”.
      It should also be noted, from the record in this case, that the defendant filed almost every conceivable motion permitted under the F.R.Cr.P. in the trial court and that he intelligently and competently presented the same to the court.
      Although appellant was advised of and knew of his right to counsel, he never, at any time, expressed any desire for assistance of counsel. The record clearly indicates that he knowingly and intelligently waived his right to counsel and emphatically asserted his right to represent himself.
      Also, the record indicates that the district-court was quite familiar with appellant’s background and experience in regard to similar proceedings pending against other individuals in the same court.

      . As set out in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938) :
      “A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”

      . The trial court’s instructions on wilfulness:
      “As stated before, with respect to offenses such as charged in this case, specific intent must be proved before there can be a conviction. You will note that the failure to act charged in the indictment must be proved beyond a reasonable doubt to have been done willfully. An act or failure to act is done willfully if done or failed to be done voluntarily and purposely and with the specific intent to do that which the law forbids.”
      “The specific intent of willfulness is an essential element of the crime of failure to file an income tax return. The word ‘willfully’ used in connection with this offense means deliberately and intentionally, and without justifiable excuse or with the wrongful purpose of deliberately intending not to file a return which the defendant knew he should have filed, in order to prevent the Government from knowing the extent of his tax liability or facts material to the determination of his tax liability.
      Defendant’s conduct is not willful if he acted through negligence, inadvertence, or mistake, or due to good faith, misunderstanding of the requirements of the law.”
      “If you find from all of the evidence that the defendant Marvin L. Cooley was honestly mistaken in his belief, you must find him not guilty as to the charges made in the indictment.”
      “If a person in good faith believes that he has done all that the law requires, he cannot be guilty of the criminal intent to willfully fail to file a tax return. But if a person acts without reasonable ground for belief that his conduct is lawful, it is for the jury to decide whether he acted in good faith or whether lie willfully intended to fail to file a tax return.
      This issue of intent as to whether the defendant willfully failed to make an income tax return is one which the jury must determine from a consideration of all the evidence in the case bearing on the defendant’s statu of mind.
      The defendant has introduced evidence showing that he relied on the advice of a Treasury employee, if you believe this evidence, or if this evidence raises a reasonable doubt in your mind as to the guilt of the defendant, then you will acquit the defendant and say by your verdict Not Guilty.”
      “In connection with the charges made, you are instructed that the statutory requirement to file an income tax return does not violate a taxpayer’s right against self-incrimination. But if you find that the defendant in good faith believed that it did violate his right against self-incrimination then you may consider that in connection with the charge of failure to file, and if as a result you find that he did not act knowingly and intentionally and willfully, then you must find a verdict of Not Guilty for the defendant.”


source: Caselaw Access Project

author: SPRECHER, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Alexander ENGLISH et al., Defendants-Appellants.
    Nos. 73-1379, 73-1380 and 73-1381.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 14, 1974.
    Decided Aug. 16, 1974.

      Joseph D. Anderson, South Bend, Ind., Donald S. Eisenberg, Madison, Wis., for def endants-appellants.
    John R. Wilks, Fort Wayne, Ind., John S. Leonardo, Asst. U. S. Atty., South Bend, Ind., for plaintiff-appellee.
    Before KILEY, Senior Circuit Judge, CUMMINGS and SPRECHER, Circuit Judges.
   SPRECHER, Circuit Judge.

Defendants Alexander English, Sam Hubbard, Jr. and Rufus Gaines appeal from convictions upon a jury trial for violations of 18 U.S.C. § 2113(a) and (e). Each defendant was sentenced to life imprisonment.

I

On December 22, 1971, at about 4:40 p. m., an armored truck belonging to Indiana Armored Car Service, Inc., was robbed by three black males in the vicinity of St. Mary’s College, north of South Bend, Indiana. Money belonging to a bank, the deposits of which were insured by the Federal Deposit Insurance Corporation, was stolen; the driver of the truck, who had been alone, was shot and killed.

In addition to the confession of defendant Gaines, which is dealt with in Part VI, the facts were derived from a host of circumstantial evidence adduced from several witnesses.

Thomas Bright, Jr., the son of one of the owners of Indiana Armored Car Service, Inc., observed a 1967 or 1968 Buick Wildcat of greenish gold color with a license commencing with “45” following the armored truck on the afternoon prior to the robbery. Bright noticed three black males in the automobile.

Louise Smith, an employee of a hospital north of South Bend and near the site of the robbery, noticed the armored truck making a pickup at the hospital at 4:30 p. m. on December 22. At the same time she observed an automobile with a license commencing with the numbers “45” in the hospital parking lot with two black males inside, one of whom she identified as defendant English.

David Lee, who was driving home from work, saw two black males push a uniformed truck driver into an armored truck between 4:40 and 4:50 p. m. at the parking lot of Randall’s Inn north of South Bend and a few blocks north of St. Mary’s College.

Sue Fenters, who was being driven home from work by her sister, noticed the armored truck leaving the parking lot of Randall’s Inn and going south between 4:40 and 4:45 p. m., with one black male driving and a second black male in the passenger side of the front seat.

Thomas Broden, a professor at Notre Dame Law School who was driving his son to work, observed an armored truck parked on an access road to St. Mary’s College at approximately 4:46 p. m., with a male leaning against a greenish medium-sized ear parked next to the truck.

Police Officer Douglas Schultz discovered the armored truck parked on the St. Mary’s access road at about 4:57 p. m., with its doors locked and engine running. Marion Cooper, the truck driver, was lying face up inside the truck. The coroner of St. Joseph County testified that Cooper died at approximately 4:45 p. m. from gunshot wounds in the head and chest.

Lee Andrews, an acquaintance of all three defendants, testified that he was the owner of a 1968 Buick Wildcat colored charcoal gray with an avocado green top which he had loaned to defendant English for four or five days in December of 1971. The certificate of registration for Andrews’ Buick showed that the 1971 license plate number was 45 G 6184. Traffic records showed that English had an accident with Andrews’ car on December 17, 1971 and received a speeding ticket on December 18, 1971.

Gerald Bywater testified that he observed Gaines fire a firearm on December 20, 1971. Police later recovered a spent slug from the scene of that firing. Evan Hodge, an F.B.I. firearms identification expert, testified that a “reasonable” or “strong” probability existed that the spent .38 caliber slug recovered from the floor of the armored truck was fired from the same firearm that witness Bywater had observed Gaines firing a few days prior to the robbery, and that a bullet taken from Cooper’s body was fired from the same weapon as the slug from the truck.

Naomi Fairchild, another acquaintance of all three defendants, saw English, Hubbard and Gaines on the evening of December 22 in her apartment in Gary, Indiana, when they had in their possession a money bag, money wrapped in bank wrappers and pistols. She heard English say that they should “get rid of those wrappers that was around the money because they were hot.”

Barbara Glass, Gaines’ girl friend, testified that she was acquainted with all three defendants; that about December 20, 1971 she and the three defendants went to South Bend in a Buiek automobile; that on December 22, she saw all three defendants in the same car; and that the same evening she saw Gaines with a Holiday Inn pillowcase with money in it. A registration card from a Holiday Inn at Gary, Indiana, showed that English had checked into the motel at about 4:45 p. m. on December 22, 1971. Gary is in the Central Standard time zone and South Bend is in the Eastern Standard zone, so that it was then 5:45 p. m. at South Bend. The distance between Gary and South Bend is about 45 miles.

Naomi Fairchild testified that she heard English say that he had purchased a new car at the end of December, 1971. Edward Kasper, an automobile salesman in Gary, Indiana, testified that he sold English a new Buick Riviera automobile on December 27, 1971, for $4,700, which English paid in cash, and that $600 to $1,000 of that amount was in one dollar bills.

Barbara Glass further testified that in January, 1972, English and Hubbard told her that “the FBI would be getting in contact with me and not to say anything” and that it was about “some kind of car, armored car.” At that time, English had a black suitcase with money in it.

II

Defendants’ first argument was that the district court erred in not permitting them to inspect the minutes of the grand jury which indicted them, so that they could determine whether the indictment was based on hearsay and whether the grand jury had probable cause to indict them.

The Supreme Court held in Costello v. United States, 350 U.S. 359, 361-364, 76 S.Ct. 406, 100 L.Ed. 397 (1956), that an indictment based exclusively on hearsay evidence is not constitutionally invalid and that a defendant is not entitled to litigate the sufficiency of evidence presented to the grand jury.

Rule 6, Fed.R.Crim.P., provides that the secrecy of grand jury proceedings may be violated “when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.”

Disclosure is “committed to the discretion of the trial judge” and “[t]he burden . . . is on the defense to show that ‘a particularized need’ exists for the minutes which outweighs the policy of secrecy.” Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 400, 79 S.Ct. 1237, 1240, 1241, 3 L.Ed.2d 1323 (1959).

Defendants make no such showing of “a particularized need.” In view of Costello, here there is “no indication that the court below abused its discretion in not ordering the grand jury minutes produced for defendants.” United States v. Newcomb, 488 F.2d 190, 192 (5th Cir. 1974).

III

Defendants’ second argument was that they were prejudiced by the delay in the furnishing of discoverable government material. Defendant Gaines was granted discovery on May 12, 1972 and did not receive the government material until August 18.

On May 12, only Gaines had been indicted and was before the court. When a motion for enforcement of the May 12 order came up for hearing on July 6, the government pleaded that Gaines’ attorney had a conflict of interest because he also represented English and Hubbard in other unrelated matters and that to disclose matters to Gaines would prejudice the government’s potential case against English and Hubbard. The district court requested briefs on the question of conflict of interest. Thereafter, on August 11, the court denied the government’s motion to disqualify Gaines’ attorney.

In the light of the intervening indictment of Gaines, Hubbard and English on July 14, 1972, the denial of the government’s motion was conditioned on first holding a hearing to determine whether Gaines’ waiver of his right to separate independent counsel was understanding^ and intelligently made. Campbell v. United States, 122 U.S.App.D.C. 143, 352 F.2d 359 (1965).

On August 18, 1972, the three defendants were arraigned in the present case and each entered a plea of not guilty. The district court then ascertained defendants’ knowing and intelligent waiver of the right to separate independent counsel. On that same day the government turned over discoverable material to defense counsel.

In view of Campbell v. United States, supra, relied upon by the district court, it cannot be considered that the conflict of interest argument advanced by the government was frivolous. In Campbell, the court said at 360-361:

The judge’s responsibility is not necessarily discharged by simply accepting the co-defendants’ designation of a single attorney to represent them both. An individual defendant is rarely sophisticated enough to evaluate the potential conflicts, and when two defendants appear with a single attorney it cannot be determined, absent inquiry by the trial judge, whether the attorney has made such an appraisal or has advised his clients of the risks. Considerations of efficient judicial administration as well as important rights of defendants are served when the trial judge makes the affirmative determination that co-defendants have intelligently chosen to be represented by the same attorney and that their decision was not governed by poverty and lack of information on the availability of assigned counsel. We must indulge every reasonable presumption against the waiver of the unimpaired assistance of counsel. '

For this reason, and because the defendants had all discoverable material more than five months prior to the present trial, and because the defendants failed to make any showing that they were prejudiced by the delay in receiving discoverable materials, we conclude that defendants’ argument in this regard is without basis.

IV

Defendants next argued that they were prejudiced by failure to grant them preliminary hearings. All three defendants were charged by complaints on March 10, 1972. Gaines waived his right to a preliminary hearing at arraignment before the magistrate and the preliminary hearing for Hubbard and English was set for March 24, 1972. On that date, the government called Gaines, who had promised to testify to the facts of the robbery just as he had given them to an F.B.I. agent earlier. However, on the stand, Gaines changed his testimony. Government counsel filed a motion for a continuance with the district court, based upon Gaines’ surprise change of position.

Before a preliminary hearing was held pursuant to Gaines’ motion to withdraw his waiver thereof, an indictment was returned against him on April 19, 1972. The preliminary hearings for Hubbard and Gaines were not rescheduled and the complaints against them were dismissed for failure to hold a preliminary hearing within the time specified. However, indictments were returned against both of them and Gaines on July 14, 1972. Therefore, rather than a delay of preliminary hearings by the government, there actually were no preliminary hearings held due to indictments returned by the grand jury.

“[O]nee an indictment has been returned a preliminary hearing is not required.” United States v. Farries, 459 F.2d 1057, 1061 (3d Cir.), cert. denied, 409 U.S. 888, 93 S.Ct. 143, 34 L.Ed.2d 145 (1972).

V

Defendants contended that they were denied their constitutional right to a speedy trial.

Gaines was first indicted on April 19, 1972 and all three defendants were indicted on July 14, 1972. The first trial, which resulted in a hung jury, took place from November 7 to 12, 1972; the seeond trial, resulting in the convictions, occurred on January 22 thru 25, 1973.

The major cause of delay between the original complaints against the defendants on March 10, 1972 and the indictment on July 14 was Gaines’ repudiation of his oral confession. Each complaint was based in part on “a statement made by Bufus Gaines to the complainant [Special Agent P. Whitaker] that on 12/22/71 he, Alexander English, and Sam Hubbard forcibly commandeered and robbed an armored vehicle ... at a location North of South Bend, Indiana, and put in jeopardy the life of Marion C. Cooper, and killed said Marion C. Cooper.”

On March 10, 1972, in his initial appearance before the magistrate, Gaines, after being advised of his right to a preliminary hearing and to be represented by counsel, waived his right to a preliminary hearing and executed the written form waiving his right to counsel. On March 24, 1972, at the preliminary hearing before the magistrate on the charges against English and Hubbard, the government called defendant Gaines who “denied any knowledge of the incident”; the proceedings were recessed. On that same day, Gaines retained the attorney who has continued to represent him through his appeal.

On April 4, 1972, Gaines filed a motion for an order granting permission to withdraw his waiver of a preliminary hearing and for a preliminary hearing. The district court set a hearing for April 17, which was reset at the request of defendant’s counsel for April 21. On April 19, 1972, the grand jury indicted Gaines.

Gaines was vigorously and aggressively represented; his counsel raised every possible defense in a lengthy series of motions. At the close of the hearing on some of those motions on July 6, the following occurred:

The Court: I would just like to make this other comment before we adjourn for the day. I would like to set this case for trial but these delays are being occasioned, sir, by your part.
Mr. Eisenberg: No, your Honor.
The Court: I disagree.
Mr. Eisenberg: I believe the delay is from what the United States Attorney has not given me over the past six weeks and is a delay caused by the Government, and we want the record to show that, and I believe this man cannot go to trial until he has a Motion to Suppress and then I’m ready for trial. .

Thereafter Gaines filed his motion to suppress on August 25, 1972, the hearing on the motion was held on August 31, and trial began on November 7.

Inasmuch as we have held in Part III that the government’s conflict-of-interest argument in delaying the turnover of discoverable material was not frivolous, the government did not deliberately procrastinate in order to prejudice the defendants. Defendants have failed to show that they were prejudiced.

Balancing the factors of length of delay, the reason the government assigns to justify the delay, the assertion of the right to a speedy trial by the defendants and the lack of a showing of prejudice to the defendants, we conclude that the defendants were not deprived of their due process right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

VI

Defendant Gaines argued that his oral confession was involuntary and that the district court erred in failing to suppress it. .

Gaines testified at the suppression hearing on August 31, 1972 that he had been in penal institutions for eighteen of his thirty-one years; that since age fifteen he had been a heroin user whenever he was not incarcerated; that each time he returned to jail he kicked his habit “cold turkey”; that prior to his arrest in March, 1972, he had been “on the streets” for about one year and was a steady heroin user with a $200 to $300-a-day habit; that he gave himself a fix consisting of seven or eight $5 packets of heroin six or seven times a day; that each fix lasted three to four hours; that on March 7, 1972, he had between six and seven fixes; that on March 8 between 6:30 and 7:00 a. m. he had a $35 fix; that he was detained by store employees for shoplifting at about 9:30 on the morning of March 8; that he was taken to the Gary police station sometime after 10:00 a. m.; that he was then taken to an upstairs cell-block where he remained for about three or four hours; that he began getting sick and that when he requested medical treatment from the turn-key he was told that treatment was “up to the detectives”; that he was beginning heroin withdrawal and described his symptoms as nausea, vomiting, and “spitting” caused by mucus draining into the throat; that he was then taken to an interrogation room where two F.B.I. agents questioned him about a robbery in Benton Harbor, Michigan and the armored truck robbery in South Bend.

Gaines further testified that though he was offered food he could not eat anything during March 8 and 9 and that he was unable to sleep; that he did not talk to anyone on March 9; that on March 10 he was interrogated by two F.B.I. agents for whom he signed a waiver form; that later that afternoon he was visited by one of the F.B.I. agents and an assistant United States attorney for whom he signed another waiver form; that he was then driven to a river in Gary, Indiana, to show the law enforcement officers where the gun used to kill the armored truck driver had been, thrown; that he pointed to no place in particular in the river; that he was then taken before a magistrate in Hammond, Indiana; that he was extremely sick during this entire period; that he signed papers in the magistrate’s office; that he was then taken to the Crown Point, Indiana, county jail; that they stopped en route to get him a hamburger and a coke because the law enforcement officers thought it might relieve his stomach pains and that he tried to eat part of it when he got to his cell; that he did not receive any medical treatment at Crown Point; that a few days later he was taken to LaPorte, Indiana, county jail; that he created a disturbance and the sheriff promised to get a doctor and some methadone; and that eventually a doctor saw him and did not give him methadoné but did give him four tablets.

In summary, Gaines testified from the time he started withdrawal on March 8 his symptoms steadily worsened for about five days; that for three or four more days his symptoms leveled off at this most painful stage; that he then began to get better and the habit was kicked in a total of two weeks; and that on March 24 at the preliminary hearing he was completely over withdrawal.

At the suppression hearing, Detective Symeon Colquitt of the narcotics unit of the Gary Police testified that he had known Gaines since grade school; that it was hearsay knowledge that he was a heroin addict; that on March 8, 1972, when Gaines was brought to the police station, he “looked the same” as on previous occasions and that his appearance did not change throughout the day; that after advising Gaines of his rights he talked with him intermittently for three or four hours; and that during the conversation Gaines was responsive, coherent and understandable and did not exhibit symptoms of withdrawal.

F.B.I. Agent Whitaker testified that he had been told Gaines was a heroin addict; that he and Agent Jenkins interviewed Gaines in the afternoon of March 8 for about one-half hour: that Gaines “seemed in control of his physical senses” and “didn’t exhibit any of the symptoms which I thought withdrawal would display”; and that when he inquired about his health Gaines answered that he was all right.

Agent Whitaker also testified that he and Agent Wilks interviewed Gaines on the morning of March 10 and that he looked the same as on March 8; that he asked Gaines how he was feeling and was told that he had been sick and had vomited the night before but felt all right then; that he “expected to see symptoms of withdrawal” but didn’t observe any and that Gaines talked about the fact that he had used heroin but said he “had stopped using it when he thought the FBI was looking for him”; that Whitaker read and explained the interrogation and advice of rights form and asked Gaines if he understood it; that he asked questions which were answered more fully than with a “yes” or “no”; and that he obtained an oral confession which was not transcribed verbatim or given under oath or signed by Gaines.

Agent Whitaker further testified that in the afternoon of March 10 he introduced Mr. Kieser to the defendant as “the Assistant United States Attorney from South Bend, Indiana . . . the Government’s prosecutor”; that prior to transporting Gaines to Hammond, he said he would show the authorities where the guns from the armored car robbery had been thrown; that Whitaker explained to Gaines that this evidence could be used against him in court and Gaines indicated that he understood; that Gaines signed a second interrogation and advice of rights form waiving his right not to incriminate himself; that during the ride Gaines “directed us to the most expeditious route to where the guns were allegedly thrown, and he knew where he was and what he was doing.”

F.B.I. Agent Wilks testified that during the interview with Gaines on March 10 he “carried on the conversation himself, mostly” and his statement was detailed ; that he was alert, his speech was clear and he seemed relaxed; and that he knew Gaines used drugs but not to what extent.

Sergeant Cobie Howard of the Gary Police testified that he had known Gaines for about twenty years; that it was his personal opinion that he was a heroin addict; that he saw Gaines on the morning of March 10 and he was understandable and sensible; and that he had not seen Gaines for some time “but the time before I’d seen him there, he was not as clean” as on March 10. Sergeant Howard denied that he had told Gaines that the only way to get medical treatment was to tell the F.B.I. what it wanted to hear.

Detective Sergeant Larry Fishburn of the Indiana State Police testified that he had knowledge that Gaines was a heroin addict;, that he rode in the back of the car with Gaines to Hammond and Gaines was intelligible, sensible and coherent; that he had observed the withdrawal of heroin addicts and that he did not observe in Gaines any symptoms of withdrawal; that “we were concerned because of the fact that we had information that he was .an addict. ... I asked him the question had he gone ‘cold turkey’ before and his answer was, ‘three or four times’ ”; and that Gaines did not ask for medical treatment in his presence.

Assistant United States Attorney Richard Kieser testified that he went with Agent Whitaker to the Gary Police Department on the afternoon of March 10 after he had been told that Gaines had made an oral statement; that he had heard that Gaines had been an addict at different times but that Gaines appeared normal and he “saw nothing unusual in his appearance”; that he vaguely recalled something about medical treatment but he didn't know exactly what was said; and that during the entire afternoon Gaines did not say he was sick but only that he was cold; and that Kieser was told by the F.B.I. that Gaines told them on March 8 that he had not taken heroin for several weeks.

Elmer Chikar of the St. Joseph County Police said he saw Gaines carry a sandwich and a drink into the Crown Point jail on March 10, 1972, and saw him eating and drinking while waiting to be booked.

F.B.I. Agent Robert Radde testified that he first had contact with Gaines in the magistrate’s office in Hammond; that he had heard that Gaines was an addict but that he “looked fine”; that he checked with Gaines about four times while he was incarcerated; that after Gaines was moved to LaPorte County Jail he received several calls from the sheriff concerning problems with Gaines including the fact that he wasn’t feeling well; and that each time he visited Gaines he was told by him that the “big problem” was not his health but rather his desire to be returned to Crown Point.

Gaines introduced copies of F.B.I. memoranda concerning Agent Radde’s visits with Gaines at LaPorte County Jail. The March 15, 1972 memorandum relates that Radde was “advised at this time that he was feeling well and being treated well and was not having any reactions from his heroin addiction.” The March 17, 1972 memorandum recites that “at this time Gaines stated he was feeling well and spoke fluently.”

The court denied the motion to suppress, stating “the Court does not find that there is any substantial probative evidence that would support [Gaines’] self-serving declarations.” In view of the evidence before him, we do not believe that the district court erred in denying Gaines’ motion to suppress his oral confession.

The question of the voluntariness of the confession and what weight, if any, to be accorded it were submitted to the jury under proper instructions at the subsequent trial.

VII

Defendants English and Hubbard contended that it was error to deny their motions for severance in view of the introduction of Gaines’ oral confession.

The confession was related on the witness stand by F.B.I. Agent Whitaker. Prior to the relation, the district court admonished the jury as follows:

Ladies and gentlemen of the jury, any statement that this witness might relate as to anything that the defendant Gaines may have told him would not be admissible against any other defendant. It would not be admissible, and might be considered by you only with respect to the defendant Gaines who may have made some statement to this witness.
Please keep that in mind in the event it should involve anybody else.

In the course of his testimony, Agent Whitaker did not mention any names except Gaines and did not describe nor identify any other person. However, he did state that Gaines “and two other individuals” were involved in the robbery and killing.

In the court’s final instructions to the jury, further admonitions were given.

The procedure followed here was precisely the same as we approved in United States v. Gregg, 414 F.2d 943 (7th Cir. 1969), cert. denied, 399 U.S. 934, 90 S.Ct. 2251, 26 L.Ed.2d 806 (1970), where we said as 948-949:

The Supreme Court in Bruton (Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476) in speaking of alternative methods to admit a confession against the confessor without infringing the non-confessor’s right of confrontation refers in a footnote (391 U.S. 134), to deleting references to co-defendants. That was precisely the procedure followed here.
Special F.B.I. Agent John William Davis testified to the oral statement made by the co-defendant after the latter had been advised of his rights. The statement clearly inculpates the co-defendant and an unnamed friend who assisted him in the robbery. In the footnote mentioned, the Court in Bruton alludes to the difficulty of relating X’s confession without reference to Y and points out the unlikelihood that an accidental slip could be remedied by instructions to disregard.
In this case there was no such slip

VIII

Defendants argued that the district judge was prejudiced against them and should have disqualified himself.

We. have read the entire record and have found no basis whatever to justify any allegation of bias or prejudice. “The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). “Rulings and findings made by a judge in the course of a judicial proceeding are not in themselves sufficient reasons to believe that the judge has a personal bias or prejudice for or against a party.” United States v. Amick, 439 F.2d 351, 369 (7th Cir.), cert. denied, 403 U.S. 918, 91 S.Ct. 2227, 29 L.Ed.2d 694 (1971).

IX

Finally, the defendants briefly listed a catalogue of alleged trial errors without any argument in support of those supposed errors and without indicating the context in which they occurred or what surrounding facts allegedly rendered them prejudicial to the defendants. Nevertheless we have examined them all and find them to be without merit.

The convictions are affirmed.

      . Section 2113(a) provides in part: “Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; . . . shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.”
      Section 2113(e) provides in part: “Whoever, in committing any offense defined in this section, . . . kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years . . . . ”

      . On August 19, 1972, government counsel gave defense counsel “additional discoverable items, stating . . . that it had not been turned over earlier ‘through an oversight’ on the part of the Assistant United States Attorney.” Affidavit of Defense Counsel, August 28, 1972.

      . 18 U.S.C. § 3060(e) provides: “No preliminary examination in compliance with subsection (a) of this section shall be required to be accorded an arrested person, nor shall such arrested person be discharged from custody or from the requirement of bail or any other condition of release pursuant to subsection (d), if at any time subsequent to the initial appearance of such person before a judge or magistrate and prior to the date fixed for the preliminary examination pursuant to subsections (b) and (c) an indictment is returned or, in appropriate cases, an information is filed against such person in a court of the United States.”

      . The complaint was also based on a statement by Sergeant Larry Fishburn reciting where the vehicle had been found, that there had been a robbery and that the driver was killed, and on a statement by Everett D. Badger, vice president of the St. Joseph Bank and Trust Company, that a portion of the money taken was the property of said bank which was insured by the Federal Deposit Insurance Corporation.

      . The court instructed the jury in part as follows:
      “A confession, if you find it to be true and voluntary, constitutes evidence only against the person making it. It must not be considered as evidence against a codefendant and must be disregarded by the jury in determining the guilt or innocence of a code-fendant. Nor is any inference of guilt to be drawn against any codefendant from the fact of their presence at this trial as codefend-ants with each other.”


author: ALFRED T. GOODWIN, Circuit Judge:

text:
    Wendy BERKELMAN, Through Pearl Berkelman, her next friend and natural guardian, et al., Appellants, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al., Appellees.
    No. 73-1686.
    United States Court of Appeals, Ninth Circuit.
    July 1, 1974.

      Susanne Martinez (argued) of Youth Law Center, San Francisco, Cal., for appellants.
    Burk Delventhal, Deputy City Atty. (argued), San Francisco, Cal., for appel-lees.
    David M. Heilbron (argued) of Mc-Cutchen, Doyle, Brown & Enersen, San Francisco, Cal., for intervener.
    Before BROWNING, DUNIWAY and GOODWIN, Circuit Judges.
   ALFRED T. GOODWIN, Circuit Judge:

The district court denied injunctive and other relief in this civil rights action challenging the San Franciseo Unified School District’s standards for admitting students to Lowell High School. Appellants, claiming to represent a class of students denied admission, have appealed. •

Lowell High School is an academic, or college-preparatory, public high school which accepts each year those applicants for admission whose prior academic achievement places them within approximately the top 15 per cent of the junior-high-sehool graduates in the district.

The issues on appeal, phrased broadly, are: (1) whether a school district may admit students to a preferred high school on the basis of past academic achievement if the percentage of black, Spanish-American, and low-income students who qualify for admission is substantially disproportionate to the percentage of black, Spanish-American, and low-income students in the school district at large; (2) whether a school district, in order to maintain equal numbers of boys and girls in the school, may apply higher admission requirements to girls than to boys.

I

The district operates eleven high schools. Seven are “comprehensive” high schools, to which students are assigned substantially on the basis of residence. The other four high schools have special educational objectives and accept qualified students from anywhere in the district. Lowell, one of these special schools, offers advanced, college-preparatory courses. Others serve students who need special help because of language or other problems, who work part-time, or who desire vocational training.

Except for students admitted under a pilot minority-admissions program (see n.l), or under the'balancing-of-the-sexes policy at issue in this case, admission to Lowell is based solely upon a student’s junior-high-school grade-point average in four college-preparatory subjects. All applicants in the district are ranked numerically by their junior-high-school grade-point averages, and students are admitted in their numerical order until their class is filled. Grade averages are not weighted according to schools in which they were earned. All junior-high grades are accepted at face value, regardless of neighborhood or demographic factors that might produce non-uniformity of grading among junior-high schools.

The statistical data stipulated into this record indicate a lower proportion of low-income students at Lowell than in the high school population city-wide. The data also show that 7.5% of Lowell’s students are black, while 25.9% of the district’s high school students are black; 5.2% of Lowell’s students are Spanish-American, and 13% of the district’s high-school students are Spanish-American. The minority percentages in Lowell’s student body would be even lower than they are but for the minority-admissions program instituted in 1970.

However, the district-court record reveals that Lowell has not become an exclusive province of the affluent and white. Chinese students contribute 29.-8% of Lowell’s student body, while they make up only 17.9% of the district’s high-school population. Further, 3.2% of Lowell’s students are Japanese, and 3.8% are Filipino, while the respective city-wide percentages are 1.9% and 4.-5%.

There was no evidence that the Board’s actions in connection with its administration of Lowell were racially motivated. The admission standar# is neither an intentionally discriminatory standard, cf. Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), nor a neutral standard applied in an intentionally discriminatory manner, see Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Nor do the Board’s actions in moving the school building to the far southwest corner (described as a predominantly white area) of the city and in modifying the admission policy indicate intent to insure and increase the underrepresentation of black and Spanish-American students at Lowell. These actions, of themselves, give no evidence of discrimination, and appellants have not offered any additional evidence of racially discriminatory motivation. We note that the admission-policy changes of which appellants complain (e. g., abandoning a form of neighborhood, admission quotas in favor of city-wide admission standards) were accompanied by the development of a pilot minority admissions program. In the absence of proof, appellants’ conclusory allegations were insufficient to make the Board’s intent a triable question ■ that would frustrate an otherwise appropriate summary judgment.

However, if an admission standard operates in fact to exclude a disproportionate number of black and Spanish-American students from Lowell, the court has a duty to test the constitutionality of that standard. Where a nonsuspect classification (past academic achievement) is alleged to operate to the detriment of a disadvantaged class or classes (black and Spanish-American students), neither “strict” nor “minimal” scrutiny provides useful guidance as a standard of review. The task is to examine the school district’s assertion that the standard of past academic achievement substantially furthers the purpose of providing the best education possible for the public-school students in the district. If the past-achievement standard does substantially further that purpose, then the district has not unconstitutionally discriminated in its Lowell admission policy.

The advantages of an “academic” high school offering advanced courses to students who have excelled in a traditional curriculum are obvious. Lowell provides in one school a program which cannot be duplicated in ten other schools any more than special courses for students with specific educational needs can be economically taken from the other special high schools in the city and spread among all eleven schools. The student whose past performance has demonstrated ability to move at an advanced rate in an advanced program will receive a “better” education than he or she would receive if required to work in subject matter and at a pace which does not provide as great an educational challenge. Likewise, a student with an interest in vocational training receives a “better” education if permitted to take vocational courses than if required to continue against his wishes with the “traditional” high-school program. The school district has determined that it is educationally “better” to consolidate special offerings for the benefit of those who can meet the performance standards than to dispense with the effort entirely because budget considerations make it impossible to offer every program at every school.

Conditioning admission to Lowell upon the level of past academic achievement substantially furthers the district’s purpose of operating an academic high school. Those students who have best mastered their junior-high-school courses are well prepared for more advanced courses at the high-school level. Of course, it does not necessarily follow that all applicants who fall below the cutoff line are educationally disqualified for Lowell’s program. The cutoff is the result of space and budget limitations, not the result of a perfect determination of who can and who cannot benefit from the program.

Those students not admitted to Lowell are neither denied a quality education nor relegated to an inadequate school. Rather, they attend one of San Francisco’s seven “comprehensive” high schools. Unlike a “tracking” system in which the challenged classifications are “predictive” and isolate students of “less promising” ability, the classification here is based upon past achievement impartially measured. There is slight potential for psychic injury to a student from attending a comprehensive high school with the majority of the city’s high-school students. Cf. Hobson v Hansen, 269 F.Supp. 401 (D.D.C.1967), aff’d en banc sub nom. Smuek v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175 (1969). We conclude that the district’s legitimate interest in establishing an academic high school, admission to which is based upon past achievement, outweighs any harm imagined or suffered by students whose achievement had not qualified them for admission to that school.

Our decision does not mean that we are not troubled by the underrepresen-tation of some racial and ethnic groups at Lowell. Uncertainty on this score, however, does not mean that the maintenance of Lowell High is itself unconstitutional or that conditioning admission on the basis of past academic achievement is unconstitutional.

Nor does the alleged underrepresentation at Lowell of students of low-income families render the admission policy unconstitutional. Low-income persons have no greater status under the equal-protection clause of the Fourteenth Amendment than members of racial minorities. See, e. g., San Antonio School District v. Rodriquez, 411 U.S. 1, 18-29, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971). It follows that since the admission policy is not made unconstitutional by its impact upon black students, it is likewise not made unconstitutional by a similar impact upon low-income students.

II

Appellants also attack as discrimination on the basis of sex the school district’s policy of requiring higher admission standards for girls than for boys. The school district asserts that the standards were designed to produce an equal number of boys and girls at Lowell. This policy has been in effect since 1970. In 1970 and 1971, male applicants were required to have a 3.0 (on a 4-point scale) average, while female applicants were required to have a 3.25 average. In 1972, the requirement for male applicants for admission was raised to 3.25 and the requirement for female applicants was raised to 3.50. Although the school district contends that if qualified males were, in any year, to outnumber qualified females the admission standards would be reversed, the situation has not yet arisen and the district consequently has not yet been put to the test. If the district’s argument about maturation and achievement rates is sound, the situation is not likely to arise.

Appellants urge us to apply a stringent standard of review, while ap-pellees urge the traditional rational-basis standard of review, in considering discrimination between females and males. Although a majority of the Supreme Court has not yet added sex to its list of suspect classifications, it has suggested that a classification based upon sex will have to be justified by more than the traditional “rational” connection between the classification and some valid legislative purpose. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). Reed established, and Frontiero reiterated, that governments may not legislate classifications on the basis of criteria not shown to be related to the objective of the statute.

The Reed Court (and implicitly the concurring justices in Frontiero), employed an alternative to both strict and minimal scrutiny. The Court there indicated that sex classifications are to be tested on the basis of strict rationality, a standard of review requiring the government (state or federal) to produce evidence that the challenged classification furthers the central purpose of the classifier. See Gunther, The Supreme Court, 1971 Term — Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 21 (1972). Mr. Justice Powell’s concurrence in Fronti-ero indicated that he agreed with the plurality that the evidence was inconclusive and did. not satisfy any burden of persuasion. See 411 U.S. at 689-690, 93 S.Ct. 1764.

In both Reed and Frontiero, stereotypes as to the social roles of males and females formed the bases of the classifications. An unsupported notion that an equal number of male and female students is an essential element in a good high-school education was apparently the justification for the school district’s policy requiring higher grade-point ayer-ages for females than for males. While that policy is not based upon an invidi-out stereotype such as was present in Reed and Frontiero, we do not read those cases so narrowly as to sanction all other sex discrimination. No actual proof that a balance of the sexes furthers the goal of better academic education was offered by the school district.

We note that had the advanced courses been offered in each high school, rather than in a separate high school, and had the school authorities applied the same or similar admission standards to such courses, the admission standards would have been an illegal discrimination on the basis of sex under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681. Although Congress condemned discrimination on the basis of sex in any education program, the prohibition with regard to sex discrimination in admissions to educational institutions was not extended to public secondary schools. 20 U.S.C. § 1681(a)(1). This omission, however, indicates nothing more than that Congress did not know the manner, extent, or rationale of separate education below the college level, and could not anticipate the effect of a prohibition upon such single-sex schools. See 118 Cong.Rec. 5804 (1972). On the other hand, its reasons for prohibiting sex discrimination in educational programs in general bears directly upon this case. Congress recognized that, because education provides access to jobs, sex discrimination in education is potentially destructive to the disfavored sex. 118 Cong.Rec. 5804. Lowell High, as a conduit to better university education and hence to better jobs, is exactly that type of educational program with regard to which Congress intended to eliminate sex discrimination when it passed Title IX.

On the basis of the foregoing, we hold that the use of higher admission standards for female than for male applicants to Lowell High School violates the Equal Protection Clause of the Fourteenth Amendment.

The judgment of the district court is affirmed in part and reversed in part, and this case is remanded for disposition consistent with this opinion.

      . The district has a modified admissions program for black and Spanish-American students which admits members of these groups who would not qualify under the normal admission standards in addition to those black and Spanish-American students who do qualify under the grade-point standard. It is unclear what criteria were used in 1970 and 1971 to select students under this program. Since 1972 a cutoff point one-half point (on a 4-point scale) below regular admissions requirements was used for selection of students in the minority admissions program. Plaintiffs have not attacked this program except to assert that it does not go far enough to bring more minority students into Lowell.

      . A third issue — the uneonstitutionality of any academic high school — was abandoned by appellants at oral argument.

      . Appellants argued, in this court, that Keyes v. School District No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973), (decided after the district court decision in this case), must be applied to the finding of de jure segregation at the elementary school level in San Francisco in Johnson v. San Francisco Unified School District, 339 F.Supp. 1315 (N.D.Cal.1971), to put the burden on the Board in this case to disprove segregative intent. In light of this court’s decision on June 21, 1974, in Johnson, 500 F.2d 349 (9th Cir. 1974), the major premise of this argument disappears.

      . See Castro v. Beecher, 459 F.2d 725, 733 (1st Cir. 1972) ; Hobson v. Hansen, 269 F. Supp. 401 (D.D.C.1967), aff’d en banc sub nom. Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175 (1969) ; P. v. Riles, 343 F.Supp. 1306 (N.D.Cal.1972). See also Arm-stead v. Starkville Municipal Separate School District, 461 F.2d 276 (5th Cir. 1972).

      . One commentator has recently proposed a similar test, labeling it “substantial congruence”. Note, Equal Protection and Intelligence Classifications, 26 Stan.L.Rev. 647, 650 (1974). See also Castro v. Beecher, 459 F.2d 725, 733 (1st Cir. 1972).

      . The effect that the presence (or absence) of certain groups of students has upon the quality of education offered in a classroom is a much-discussed topic. See U. S. Office of Education, Equality of Educational Opportunity (1966) (the Coleman Report) ; C.' Jenks, Inequality (1972) ; On Equality of Educational Opportunity (F. Hosteller & D. Moynihan Eds. 1972).

      . Statistics available for fifteen semesters between 1962 and 1969, during which time equal admission standards were applied to males and females show a majority of male students admitted in four semesters, and a majority of females in all other semesters. This may be partially explained by the statistics which show that females exceed one half of the student population at most of the comprehensive high schools in the district.

      . The evidence with regard to an alternate explanation — that females get better grades in their early school years but that males catch up with females at the high-school level— was inconclusive.

      . In a similar case, another court, without discussing the “equal numbers” theory, ordered the use of the same standard of admission for boys and girls to an academic high school operated by the Boston public school system. Bray v. Lee, 337 F.Supp. 934 (D.Mass.1972).


author: HEANEY, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Dr. Thomas C. STURGEON, Appellant.
    No. 73-1719.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 15, 1974.
    Decided July 18, 1974.
    Rehearing and Rehearing Eh Banc Denied Aug. 15, 1974.
    Certiorari Denied Dec. 16, 1974.
    See 95 S.Ct. 659.

      Robert W. Matías, Cedar Rapids, Iowa, for appellant.
    Gary E. Wenell, Asst. U. S. Atty., Sioux City, Iowa, for appellee.
    Before HEANEY and STEPHENSON, Circuit Judges, and SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   HEANEY, Circuit Judge.

Dr. Thomas Chester Sturgeon appeals from his convictions for conspiracy and various counterfeiting violations.

Sturgeon’s arrest and convictions were the culmination of an extensive counterfeiting investigation jointly conducted by the Cedar Rapids, Iowa, Police Department, the Linn County, Iowa, Sheriff’s Department and the United States Secret Service. At approximately 1:30 A.M. on January 31, 1973, a search warrant was obtained from Judge August Honsell of the Cedar Rapids Municipal Court by two members of the Linn County Sheriff’s Department and two Secret Service agents. The warrant authorized an immediate search of Sturgeon’s home and person for counterfeit twenty-dollar Federal Reserve notes and specified counterfeiting paraphernalia. The warrant was issued on the premise that the possession and use of these materials was in violation of Iowa law. The warrant was immediately executed by the local police and sheriff officials and the Secret Service agents. Sturgeon and an accomplice, Donald Wash-burn, were arrested. A number of items, including counterfeit currency and counterfeiting paraphernalia, were seized and were admitted into evidence at Sturgeon’s trial.

Sturgeon and Washburn were indicted by a federal grand jury in a twelve-count indictment on June 8, 1973. Washburn pled guilty to four of the counts against him. Sturgeon was tried and convicted of all eight counts against him on September 12-14, 1973. Sturgeon dismissed his retained counsel approximately three weeks before his trial. Two weeks before trial, the court, at Sturgeon’s request, appointed an attorney to advise him during trial. Sturgeon proceeded, pro se, at trial with the assistance of the court-appointed legal advisor.

On this appeal, Sturgeon contends that: (1) the counterfeiting of Federal Reserve notes does not constitute a violation of Iowa law, and, therefore, there was no probable cause on which to issue the search warrant; (2) the search was a federal one, and that this being the case, Rule 41 of the Federal Rules of Criminal Procedure had to be complied with but was not; (3) his waiver of trial counsel was not knowing and intelligent; (4) the trial court erred by failing to hold an evidentiary hearing when in a post-trial motion he contended that his retained counsel represented him ineffectively in regard to his pretrial motion to suppress the evidence obtained pursuant to the search warrant; and (5) the trial court erred in failing to grant his motion for a continuance of his trial after he dismissed his retained counsel. We affirm.

IOWA LAW

The “Information for Search Warrant,” filed with Judge Honsell at the time the warrant was issued, indicated that the items seized formed the basis for violations of a number of subsections of § 718 of the Iowa Code. The warrant stated “that certain property is owned or possessed in violations of the laws of Iowa,” and “commanded [an] immediate search of the premises and person * * * ” for counterfeit Federal Reserve notes and specified paraphernalia used in manufacturing them. The Iowa Supreme Court has not interpreted the relevant statutes with respect to whether they-prohibit counterfeiting of Federal Reserve notes. We believe that they can reasonably be construed as doing so. For example, the phrase “any other government” in § 718.4 of the Iowa Code Annotated can be read to include the United States Government; and inasmuch as the Federal Reserve Banks are corporate entities chartered by the United States and are authorized to issue Federal Reserve notes, the counterfeiting done here would seem to fall within the confines of the statute. Moreover, the determination of Judge Honsell that the counterfeiting of Federal Reserve notes violates the Iowa statutes absent authority to the contrary is entitled to weight. Thus, we reject Sturgeon’s contention that, as a matter of law, the warrant was improvidently granted because counterfeiting of Federal Reserve notes does not constitute a violation of Iowa law. We reserve for discussion infra the issue as to whether the factual information presented to Judge Honsell constituted a sufficient showing of probable cause that Iowa law was violated.

We are also convinced that Iowa law governing the issuance and execution of search warrants was complied with and that the officers obtained the warrant from the state judge in a good faith effort to secure evidence for use in a state prosecution and not because they sought to avoid the requirements of Rule 41.

PROBABLE CAUSE AND RULE 41

The matter is not ended by our holding that the warrant was validly issued pursuant to state law. There was significant federal involvement in the search. Therefore, the search must be characterized as a federal one. See, Lustig v. United States, 338 U.S. 74, 78-79, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949). We must then decide whether the issuance of the warrant violated any constitutional requirement and whether any provision of Rule 41 designed to protect the integrity of the federal courts or govern the conduct of federal officers was violated.

The only constitutional question raised is that the affidavits failed to demonstrate probable cause for the issuance of the warrant. We are satisfied that probable cause was shown in the affidavits contained in the request for the warrant. To the extent that the affidavits were based on the affiants’ personal observations, they revealed that: (1) Donald Washburn,. Sturgeon’s co-conspirator, had sold counterfeit twenty-dollar Federal Reserve notes to the Secret Service agents on three occasions ; (2) one of these sales was made at the agents’ motel room on the evening of January 30, 1973; (3) Sturgeon was present at the January 30th sale and informed the agents that he had printed the notes and would print more that evening for delivery to the agents on the next day; (4) Sturgeon and Washburn were observed leaving the motel at 9:15 P.M. on January 30th and were followed to Sturgeon’s residence; (5) Deputy Sheriff Beuter had surveilled Sturgeon’s home late in the evening of January 19th and observed a light from a crack in the wall and heard the sound of machinery emanating from the premises. To the extent that the affidavits were based on hearsay information they satisfy the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The reliability of the merchants was sufficiently shown, see, United States v. Unger, 469 F.2d 1283, 1286-1288 n. 4 (7th Cir. 1972), cert. denied, 411 U.S. 920, 93 S.Ct. 1546, 36 L.Ed.2d 313 (1973), and there was a sufficient statement of the underlying circumstances from which the merchants learned that Sturgeon possessed counterfeiting paraphernalia in his home.

Sturgeon urges that Rule 41 was violated in the following respects and that, therefore, the fruits of the search were not admissible in a federal trial:

(1) The issuing judge was a city and county judge, not a “judge of a state”. [Rule 41(a)] We find no merit to this contention. The Cedar Rapids Municipal Court was a state court of record created by state law. §§ 602.1 and 602.13 Iowa Code Annot. (1950). Compare, Navarro v. United States, 400 F.2d 315 (5th Cir. 1968).

(2) The testimony given when the warrant was issued was not recorded. [Rule 41(c)] This fact is immaterial. All information necessary for the issuance of the warrant was stated in the affidavits for the warrant. Thus, the fact that some unrecorded testimony was taken with respect to a Secret Service agent’s expertise in identifying counterfeit bills is not violative of the Rule. Moreover, Judge Honsell recorded on the warrant that he was satisfied from the agent’s testimony that he was qualified to give expert testimony.

(3) The warrant did not state that it was to be executed in the nighttime. [Rule 41(c)] We are satisfied that this provision of the Rule was complied with. The warrant was secured at night, it authorized an immediate search, and it is clear from the record that Judge Honsell understood that it was going to be served immediately. Furthermore, legitimate reasons for a nighttime search were set forth in the affidavits.

(4) A copy of the warrant and receipt for the property taken was not left with Sturgeon, and an inventory was not completed in his presence or that of a credible person other than the applicants for the warrant. [Rule 41(d)] The record belies this contention. A copy of the warrant and a preliminary inventory of the property taken was left on the premises with Sturgeon's wife, and the inventory was completed in the presence of credible persons other than those who applied for the warrant.

(5) The warrant did not designate a federal magistrate to whom it should be returned. [Rule 41(c)] We do not believe that this provision of Rule 41 is applicable where a state court judge issues a state warrant for the violation of state law. The provision is a technical one which blueprints the procedure for the issuance of federal warrants and is not designed to protect the integrity of the federal courts or assure reasonableness on the part of federal law enforcement officers. Cf., United States v. Sellers, 483 F.2d 37, 44 (5th Cir. 1973). Moreover, the warrant required a return to Judge Honsell, and it was returned to the Cedar Rapids Municipal Court along with a typewritten final inventory.

OTHER CONTENTIONS

We have carefully reviewed the record with respect to Sturgeon’s other three contentions and find them to be without merit. The trial court carefully cautioned Sturgeon as to responsibilities and dangers involved in self-representation and appointed an attorney to serve as his legal advisor. Under the circumstances, it is clear that his waiver of counsel was knowing and intelligent.

The trial court did not err by failing to grant a hearing on Sturgeon’s request for a new trial on the ground that his retained counsel was ineffective with respect to a motion to suppress evidence. The ineffectiveness was alleged below to consist of a failure to comply with Local Rules regarding briefs and citations of authority. It is not apparent from the record that there was a failure to comply with the Local Rules; and if there was such a failure, it was overlooked by the trial court judge who heard the motion and correctly decided the motion on its merits.

Finally, we reject the contention that the trial court erred by failing to grant a continuance to Sturgeon after he had dismissed his counsel three weeks prior to trial.

The granting of motions for contin-. uanee before or during trial is discretionary with the trial court, and in the absence of a clear abuse of discretion the action of the trial court will be sustained.

United States v. Leach, 429 F.2d 956, 963 (8th Cir. 1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971).

We find no abuse of discretion here and, therefore, reject this contention.

Affirmed.

      . The offenses of which Sturgeon was convicted are as follows: (1) Count I, conspiring to manufacture, sell and distribute counterfeit twenty-dollar bills in violation of 18 U.S.C. § 371; (2) Counts VI and IX, counterfeiting of securities of the United States, namely twenty-dollar bills, in violation of 18 U.S.C. § 471; (3) Counts VII and VIII, possession of counterfeit securities of the United States, namely certain other twenty-dollar bills, in violation of 18 U.S.C. § 472; and (4) Counts X, XI and XII, unlawful custody and possession of printing plates made in the similitude of a plate from which genuine United States Federal Reserve notes have been printed, all in violation of 18 U. S.C. § 474.

      . The statutes cited as being violated were the following sections of the Iowa Code Annotated (1950) : § 718.3 (Public Instruments), § 718.4 (Counterfeiting bills, notes or drafts), § 718.5 (Possession of counterfeit papers), § 718.6 (Ottering counterfeit securities), § 718.13 (Making tools for counterfeiting), and § 718.14 (Possession' of tools for counterfeiting).

      . Section 718.4 of the Iowa Code Annotated provides as follows:
      If any person make, alter, forge, or counterfeit any bank bill, promissory note, draft, or other evidence of debt issued or purporting to be issued by any corporation or company duly authorized for that purpose by any state of the United States, or any other government or country, with intent to injure or defraud, he shall be imprisoned in the penitentiary not more than ten years, or be fined not exceeding three hundred dollars, and imprisoned in the county jail not exceeding one year. (Emphasis supplied.)

      . The constitutional requirements must, of course, be met irrespective of whether the search is classified as a federal or state one. See, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

      . In United States v. Sellers, 483 F.2d 37, 43 (5th Cir. 1973), the Fifth Circuit stated:
      A federal court reviewing the sufficiency of a warrant issued by a state court, for the purpose of determining whether the fruits of a resulting search are lawful and hence admissible in a federal prosecution, must determine whether the warrant was issued as a federal warrant or as a state warrant. If the warrant was issued under authority of Rule 41 as a federal warrant clearly it must comply with the requirements of the rule. If, however, the warrant was issued under authority of state law then every requirement of Rule 41 is not a sine qua non to federal court use of the fruits of a search predicated on the warrant, even though federal officials participated in its procuration or execution. The products of a search conducted under the authority of a validly issued state warrant are lawfully obtained for federal prosecutorial purposes if that warrant satisfies constitutional requirements and does not contravene any Rule-embodied policy designed to protect the integrity of the federal courts or to govern the conduct of federal officers.

      . The affidavits were contained in the “Information for Search Warrant.” They were sworn to, and the affiants were present before Judge Honsell.

      . That information was contained in the “Information for Search Warrant” and is as follows:
      On January 25, 1973 at approximately 11:00 AM I, Captain George Griffin, being employed by the Linn County Sheriff’s Office in Cedar Rapids, Iowa did have an occasion to interview Russell Gallagher, J. P. Gasway Paper Company, Cedar Rapids, Iowa who Advised [sic] me that approximately three months ago he was in the building occupied by Thomas C. Sturgeon at 530 10th Street SE Cedar Rapids, Iowa and did observe a printing press along with various pieces of printing paraphernalia. Further that Mr. Gallagher advised us that Sturgeon had been purchasing various printing supplies which could be used for manufacturing counterfeit notes, specifically Vonson Amazon green ink and Von Son ivy mint green ink also printing plates.
      ❖ ¡I: * * *
      I, Paul D. Parmelee, Special Agent of the Secret Service, further state that I did obtain samples of Von Son Secret Set black ink and Von Son Secret Set Amazon green ink from Mr. Lynn Fox of Mid-Western Paper Company in Cedar Rapids, Iowa who advised me that he had sold such ink to Thomas C. Sturgeon on January 2, 1973. Further that I submitted the samples of this ink to the Iowa Bureau of Criminal Investigation Laboratory in Des Moines along with one of the notes (counterfeit) that I had purchased from Wash-burn on 1-16-73. Further that I have been advised by this Laboratory that the samples ink obtained from MidWestern Paper Company and purchased by T. C. Sturgeon did produce identical laboratory results as the ink contained on one of the counterfeit notes that I had purchased from Donald K. Washburn on 1-16-73.


author: HAYS, Circuit Judge:

text:
    J. HOWARD SMITH, INC., et al., Plaintiffs-Appellants, v. S. S. MARANON, her engines, boilers, etc., and Corporacion Peruana de Vapores, Defendant-Appellee.
    No. 822, Docket 73-1921.
    United States Court of Appeals, Second Circuit.
    Argued April 22, 1974.
    Decided July 25, 1974.
    As Modified on Rehearing Sept. 3, 1974.

      Donald M. Kennedy, New York City (Donovan, Donovan, Maloof & Walsh, New York City, on the brief), for plaintiffs-appellants.
    Richard T. O’Connell, New York City (Healy & Baillie, New York City, on the brief), for defendant-appellee.
    Before LUMBARD and HAYS, Circuit Judges, and JAMESON, District Judge.

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

   HAYS, Circuit Judge:

A group of cargo owners brought this action to recover from the carrier losses incurred when their cargoes of fishmeal caught fire aboard the vessel. The carrier counterclaimed seeking contribution in general average. The district court found the carrier free from fault and therefore dismissed the complaint and granted the carrier judgment on the counterclaim.

We affirm.

In April and May, 1965, the S.S. Mar-anon picked up some 132,000 bags of anchovy fishmeal at Matarani, Callao, Hu-acho, and Chaneay, Peru, and headed for Baltimore, Maryland. A few days after leaving Chaneay the crew discovered overheating in some of the sacks of fish-meal that had been loaded at Matarani. The master of the ship ordered certain sacks placed on deck and others jettisoned in an attempt to isolate and alleviate the problem.

The master contacted the owner, and when the vessel reached Cristobal, Panama Canal Zone surveyors were brought aboard. After the surveyors examined the cargo and reported their findings it was decided that the ship would proceed.

Shortly after leaving Cristobal overheating recurred and fire broke out in the Matarani cargo. The master continued the voyage but then decided to dock in Savannah, Georgia, where the voyage was terminated and general average declared.

To impose liability on the shipowner for the loss suffered to the cargo, the cargo owner must show “design or neglect” or “actual fault or privity” by the carrier. Negligence of the master or the crew will not suffice. 46 U.S.C. § 182 (1970); Carriage of Goods by Sea Act § 4(2) (b), 46 U.S.C. § 1304(2) (b) (1970). Appellants’ case does not meet this statutory standard.

If improperly prepared for shipment fishmeal may ignite through spontaneous combustion. The carrier is not liable for damage arising from such inherent defects. Carriage of Goods by Sea Act § 4(2) (m), 46 U.S.C. § 1304(2) (m) (1970). Where cargo has such a propensity for damage due to latent defects the shipper bears the burden of proving delivery to the carrier in good condition. Elia Salzman Tobacco Co. v. S.S. Mormacwind, 371 F.2d 537, 539 (2d Cir. 1967); Commodity Service Corp. v. Hamburg-American Line, 354 F.2d 234 (2d Cir. 1965). In an attempt to discharge this burden appellants introduced a Fishmeal Certificate of Inspection for the Matarani cargo prepared by a firm of cargo surveyors in Peru. The district court properly found this inadequate in two respects.

First, appellants failed to establish a foundation adequate to bring the certificate within the scope of the “business records” exception to the hearsay rule, 28 U.S.C. § 1732, (1970). In United States v. Rosenstein, 474 F.2d 705 (2d Cir. 1973), this court held that the foundation must be laid by “someone who is sufficiently familiar with the business practice.” Id. at 710. We declared that, while the foundation need not be established by one who personally makes or keeps the records, it was insufficient to rely on one who had no direct knowledge of the business practice of the company which kept the records.

Appellants sought to establish the foundation through the testimony of an employee of one of the appellants who was not associated with the Peruvian firm. He had no personal knowledge of how the firm created or kept the records. Thus there was no testimony by “someone who is sufficiently familiar with the business practice” of the record-keeping company, and no adequate foundation was established.

The district court also properly rejected the certificates on the ground that they contained conclusions about the temperature, fat content, and moisture content of the cargo without indicating how such measurements were taken or whether the inspection extended to possible defects not apparent from an internal examination. Had they been admitted there would have been no way for appellees to determine by cross-examination how reliable the records were. Cf. Aunt Mid, Inc. v. Fjell-Oranje Lines, 458 F.2d 712, 719 (7th Cir.), cert. denied, 409 U.S. 877, 93 S.Ct. 130, 34 L.Ed.2d 131 (1972). The certificates were not admissible. See The Niel Maersk, 91 F.2d 932, 933 (2d Cir.), cert. denied, 302 U.S. 753, 58 S.Ct. 281, 82 L.Ed. 582 (1937).

As to the non-Matarani ■ cargo there was not even an attempt to prove delivery in good condition. Thus appellants did not sustain their burden as to any part of the cargo.

Appellants claim that appellee failed to maintain proper ventilation of the cargo during the voyage. They relied on the absence of entries in the ship’s log indicating when the ship’s mechanical ventilation system was started. However, the master of the ship testified that he started the system when the fishmeal was first loaded and continued it throughout the voyage. The conflict in the evidence was for the district court to resolve. Appellants also claim that stowage of the fishmeal was improper. There was ample evidence that the stowage, though not perfect, reasonably complied with the “South African Strip” method. The conclusion that stowage and ventilation aboard the Mar-anon were proper was not clearly erro- ' neous.

Appellants claim that, even if improper ventilation did not start the fires in the ship, the owners of the ship assumed control from the master when the ship reached the Canal Zone, thereby waiving their protection under 46 U.S.C. §§ 182 and 1304(2) (b), and that they were therefore liable for the results of their negligent decision to have the Maranon proceed. See May v. Hamburg-Ameri-kanische Packetfahrt Aktiengesellschaft, 290 U.S. 333, 344, 54 S.Ct. 162, 78 L.Ed. 348 (1933).

The conclusion of the district court that the master retained control of the ship is not clearly erroneous. The communications between the master and the owner are subject to different interpretations. The master testified that he never relinquished control of the ship. It was the proper province of the district court to resolve any conflicts in the evidence.

Appellants claim that the master was negligent in not using carbon dioxide to extinguish the fires when they first appeared. The negligence of the master, as we have observed, does not give rise to liability of the carrier. Nor does it defeat the claim of the carrier for contribution in general average where the bills of lading include a “Jason” clause, which invokes the right to general average for damage caused by the negligence of the crew or the master. The Jason, 225 U.S. 32, 32 S.Ct. 560, 56 L.Ed. 969 (1912). However, the bills of lading in this case did not contain a Jason clause, and the case is therefore controlled by the traditional rule that the ship at fault has no right to general average contribution. The Irrawaddy, 171 U.S. 187, 18 S.Ct. 831, 43 L.Ed. 130 (1898); G. Gilmore & C. Black, The Law of Admiralty § 5-13 (1957).

However, the district court found that the master was not negligent in declining to use CO2. There was testimony that the gas might condense and cause further damage, and that the conduct of the crew and captain actually minimized damage to the cargo. We cannot hold the finding of the trial judge clearly erroneous.

Affirmed.

      . See also Phillips v. United States, 356 F.2d 297, 307 (9th Cir. 1965), cert. denied, Walker v. United States, 384 U.S. 952, 86 S.Ct. 1573, 16 L.Ed.2d 548 (1966), where the court found documents inadmissible because “[t]hey were not made in the regular course of the business of the company in whose files they were found . . . ”

      . Appellants have apparently abandoned the claim based on the decision to have the Mar-anon proceed despite a rupture in one of its four cylinder casings before it arrived at Cristobal.