author: BARNES, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Barry H. CRAIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lenard REEVES, Defendant-Appellant.
    Nos. 72-1885, 72-1886.
    United States Court of Appeals, Ninth Circuit.
    Sept. 4, 1973.
    Richard D. Emery (argued), Prison Legal Services Project, Lowell K. Halverson, Seattle, Wash., for Barry H. Crain.
    Richard D. Emery (argued), Prison Legal Services Project, Wesley G. Hohlbein, Seattle, Wash., for Lenard Reeves.
    Bruce D. Carter, Asst. U. S. Atty. (argued), Stan Pitkin, U. S. Atty., Seattle, Wash., for plaintiff-appellee.
    Kevin C. McMahon, Robert T. Czeisler, ACLU, Seattle, Wash., for amicus curiae.
    Before BARNES and CHOY, Circuit Judges, and JAMESON, District Judge.

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

   OPINION

BARNES, Circuit Judge:

The two appellants were indicted in a six count indictment, charging them in Count One with a conspiracy to pass and keep counterfeited notes (18 U.S.C. §§ 472 and 371); in three counts (Counts Two, Three and Five) of passing counterfeit notes (18 U.S.C. §§ 2 and 472), and two counts (Counts Four and Six) of possessing counterfeit notes (18 U.S.C. §§ 2 and 472).

' Prior to trial, a motion to suppress the counterfeit money was made, upon the theory certain evidence (the counterfeit notes) was the product of an illegal search and seizure. That motion was heard and denied. The trial resulted in a jury verdict of guilty. Crain received a concurrent sentence of 30 months on each count; and Reeves 5 years on each count, concurrent. Jurisdiction below rested on 18 U.S.C. § 3231, and here on 28 U.S.C. § 1291.

The alleged illegal search occurred as the result of airport antihijacking procedures.

On Monday, September 20, 1971, appellants appeared together at the Seattle Airport, seeking passage on Western Airlines flight No. 627. Reeves was ticketed under the name of “L. Reed”, and Crain was ticketed under the name of “J. King.”

The case of United States v. Charles Davis, aka Marcus Anderson, 482 F.2d 893 (1973), details the history of anti-hijacking efforts on the part of both the government, and the private airlines, commencing with voluntary screening in late 1968 or early 1969, the system then used was first, the use of the “profile”; second, the use of a magnetometer to detect the presence of metal; and third, a weapons search of persons and their carry-on luggage.

“As a part of this cooperative effort, United States deputy marshals and Customs Service agents were made available to carry out searches and make arrests. By September, 1970, approximately 400 United States deputy marshals were assigned to surveillance and search activities at airport boarding gates.” United States v. Davis, supra, 482 F.2d at 899.

Nine days previously to September 20, 1971 the President of the United States had ordered surveillance equipment and techniques to be used at certain airports: In July of 1972 the requirement was extended by the President to all airports (Id., 482 F.2d at 899-901).

Western Airlines (herein Western) was acting pursuant to its Tariff on file with the Civil Aeronautics Board (Suppression Ex. 1A), which provided:

“Carrier will refuse to transport or will remove at any point any passenger . . . who refused to permit search of his person or property for explosives, or a concealed deadly or dangerous weapon or article.”

On September 20, 1971, signs were prominently displayed in the boarding area to advise passengers of the existence and operation of the antihijacking program (Suppression Exs. IB and 1C), and an announcement was made over the loud speaker that the program was being used. Both defendants denied having seen any warning signs.

At the Western gate, an employee of Western, one Saylor, who was operating the magnetometer, had been told both Crain and Reeves met the Federal Aviation Authority’s profile test and were “profiles”. Reeves, with his hand luggage triggered the magnetometer as he went through it. Crain did not. Reeves was requested to go through the magnetometer again without his hand luggage; and there was little or no reading of metal. Saylor requested permission to look through Reeves’ suitcase and Reeves agreed and placed his suitcase on the table and opened it for inspection. (R.T. 133, 191-193; particularly 191 at 19-23; Court’s finding at 277). Saylor proceeded to examine the contents of the suitcase.

Saylor asked Reeves what was in a paper bag and Reeves said “papers”. When Saylor observed money in the paper bag, he showed this to Deputy U. S. Marshal Malcolm Knight who was standing nearby observing the boarding of the flight. Saylor asked Reeves what was in a roll of newspapers in the bottom of the suitcase, and Reeves responded “some more paper”, and more money was observed in the newspapers. When Knight observed the large amount of money in the suitcase and Saylor indicated his concern, Knight identified himself to Reeves, obtained Reeves’ consent to look into the luggage (R.T. at 184-186) and continued to inspect the suitcase for weapons. During the course of the check for weapons, Knight observed a metal-toothed comb and a spray can. When Knight looked into the top of the suitcase, he observed a green opaque bag in the top of the suitcase and asked Reeves what was in the bag and “there was no comment from him.” Knight asked this question three times, and still no comment. Knight testified:

“A So at that point I opened the bag from the top and looked into it.
“Q What did you observe?
“A A green leafy substance resembling marijuana.
“Q And what did you do at that point ?
“A I placed him under arrest, and handcuffed him.”

Crain continued on the flight to San Francisco. Marshal Knight subsequently noticed that some of the money in the suitcase was counterfeit and notified the Secret Service.

Secret Service Agent Roy Nedrow met Western Flight #627 in San Francisco, Crain was detained and consented to a search of his suitcase. In the suitcase Agent Nedrow found the Bacchus after shave lotion (Exhibit 6B), the bottle of Florida water (Exhibit 4B) and the short-sleeved pumpkin-colored knit shirt with a design on the front with the matching trousers (Exhibit 5B).. It was later ascertained that these Exhibits were purchased by one or the other defendant in the Seattle area with counterfeit bills.

We cannot say that the trial court’s finding that consent was given by Reeves for the search was clearly erroneous, nor that it was without probable cause. The search, under the circumstances of this case, was a reasonable one, and not violative of the Fourth Amendment. United States v. Davis, supra, 482 F.2d at 893; United States v. Tolliver, No. 73-1637 (9th Cir. July 2, 1973); United States v. Doran, 482 F.2d 929 (9th Cir. 1973); United States v. Hillery, No. 73-1586 (10th Cir. August 16, 1973).

Neither can we hold that the court’s finding, that Reeves acquiesced in the search, was not a voluntary acquiescence, merely because he was responding to a request by a federal officer (Knight) or an airline employee (Saylor) who was cooperating with federal officers.

“(Such) fact alone is not enough to make her acquiescence involuntary. Frazier v. Cupp, 1969, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684; Government of the Virgin Islands v. Berne, 3d Cir. 1969, 412 F.2d 1055, cert. denied 396 U.S. 837, 90 S.Ct. 96, 24 L.Ed.2d 87, rehearing denied 396 U.S. 937, 90 S.Ct. 261, 24 L.Ed.2d 239. And there was nothing else to indicate coercion. The officers made no show of force and they made no threats. They did not exert pressure upon Mrs. Butler in any way. Cf. United States ex rel. Harris v. Hendricks, 3d Cir. 1970, 423 F.2d 1096.” United States v. Fields, 458 F.2d 1194, 1198 (3rd Cir. 1972).

Appellant also claims he was entitled to an in camera showing of the Federal Aviation Agency’s skyjacker profile. When every passenger is asked to proceed through the magnetometer test, the language in United States v. Doran, supra, Paragraph No. 4 — “Profile”, is controlling.

“Since the profile was not necessary to support the search, we find that the refusal to disclose it was not error. With or without having been selected as a profilee, appellant would still have been subject to search, and the reasonableness of that search is not in any way dependent on the profile. United States v. Bell, 464 F.2d 667, 674-675 (CA2 1972) [Judge Friendly’s concurring opinion].”

Other errors asserted by defendants do not, in our opinion, require discussion or comment.

Affirmed.

      . “Passengers and baggage subject to search under federal law as an FAA safety regulation/ (R.T. at 277).


source: Caselaw Access Project

author: SWYGERT, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Silvester Sam JACKSON, Defendant-Appellant.
    No. 72-1450.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 8, 1972.
    Decided July 16, 1973.

      Jean Powers Kamp, Federal Defender Program, Chicago, Ill., for defendant-appellant.
    James R. Thompson, U. S. Atty., William T. Huyck, Dan K. Webb, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, and PELL and STEVENS, Circuit Judges.
   SWYGERT, Chief Judge.

Silvester Sam Jackson, defendant-appellant, and Nicholas Romak, were indicted for violating the Dyer Act: possession of a 1970 Peterbilt truck which had been stolen in Cape Girardeau, Missouri and later found in Orland Park, Illinois. Jackson was found guilty by a jury verdict and sentenced to five years imprisonment. The appeal from his conviction raises two issues: (1) whether the district court improperly limited the cross-examination of a Government witness; and (2) whether the prosecutor stated his personal opinion on the credibility of the Government witnesses in his final argument. We reject both contentions and affirm.

Briefly stated, the evidence showed that on April 16, 1971, a stolen 1970 Peterbilt truck was found in the possession of Nicholas Romak. Romak, who was charged together with appellant Jackson with the unlawful possession of a stolen vehicle, agreed to become a Government witness in the prosecution of Jackson. At Jackson’s trial Romak stated that he had bought the truck from Jackson for $4,800 with the understanding that it was “hot.” Payment was made in installments, some by check and some in cash. Several checks written by Romak to Jackson were identified as part of his payments for the truck. In addition, Romak testified to various details concerning the delivery of the truck and the alteration of the serial numbers on it.

The Government’s second principal witness, John Reichling, who lived with Jackson, testified that in September 1970 Jackson told him that he had a stolen Peterbilt truck for which he thought he had located a buyer. Jackson also told Reichling that he planned to do a “numbers job” on it. Reichling further stated that Jackson later told him that the “numbers job” had been successfully completed and the truck sold to Romak. According to Reichling’s testimony, the appellant showed him the stolen truck, which at the time was at Romak’s residence. The Government’s other witnesses corroborated various details of the serial number alteration and the transfer of possession.

The defense theory, established solely by Jackson’s testimony, was that Jackson never had possession of the truck and never sold it to Romak. Jackson testified that he merely told Romak that a party named Buckie Gentry had a Peterbilt truck for sale and that Romak later asked him to do some repair work on the truck. Jackson said that he assumed Romak had purchased the truck from Gentry. Jackson, who had done considerable repair work on another truck belonging to Romak, explained that the checks from Romak were not payments for the stolen truck but were payments for previous repair work he had performed on the other truck.

As to the damaging testimony of Romak and Reichling, appellant attempted to show that both had a strong incentive to perjure themselves. Romak acknowledged under cross-examination that he had pled guilty to possession of the stolen Peterbilt and was given probation. He further stated that his lawyer told him and he believed that he would be given probation if he pleaded guilty and testified for the Government. He denied, however, that he was promised probation by the Government in exchange for his testimony. As to Reich-ling, it was the defense theory that Reichling was offered the dismissal of an unrelated criminal charge then pending against him in exchange for his testimony. The defense was unable to explore this theory in detail because of the allegedly erroneous ruling by the trial court, but the cross-examination of Reichling did establish that Reichling had said to the appellant that the Government had told him that it was Jackson that they were “after” and that if he, Reichling, did not help to implicate him, they would “get” him.

I

With respect to the appellant’s first contention, a more detailed exposition of the facts is needed. Prior to cross-examination of witness Reichling, defense counsel explained to the trial judge, out of the presence of the jury, that she intended to examine the witness regarding promises which may have been made by the prosecutor with respect to an unrelated criminal charge then pending against him. The defense hoped to elicit a response by which the jury could infer that Reichling was testifying against Jackson in exchange for the dismissal of the other charge. Defense counsel moved for an instruction to the witness not to “blurt out” the fact that Jackson was also charged with that offense. Unfortunately, the trial judge never ruled on the specific motion to instruct the witness. Rather, a colloquy among the judge, the prosecutor, and defense counsel ensued in which the assistant United States Attorney objected to the motion, expressing his contention that the intended cross-examination would “open the door” for testimony on redirect that the defendant Jackson was in fact involved in the other crime. Essentially the colloquy dealt with the question of whether the information sought to be excluded would be proper on redirect. The argument concluded:

THE COURT: Well, you are treading on dangerous grounds if you go into that aspect of the examination.
DEFENSE COUNSEL: That is why I want to bring it up now.
THE COURT: Because he certainly has a right to go into the other phase of it.
DEFENSE COUNSEL: I would
think the prejudice would so far outweigh the relevance, and I think it is definitely relevant to showing a possible motivation for lying. That is obviously the theory of the defense here, that the FBI has pressured people into implicating Jackson.
THE COURT: I am going to permit — depending on what you ask the witness — I don’t know what you are going to ask him specifically, but I certainly would permit the U.S. Attorney to go into the question if the door is opened.
DEFENSE COUNSEL: You will allow him to testify about Jackson specifically ?
THE COURT: If the cross-examination warrants it. I will. I can’t prejudge it at this time.
DEFENSE COUNSEL: Thank you.
THE COURT: I just want to call it to your attention that you are treading on dangerous ground.

Defense counsel neither insisted on a ruling on her motion nor pursued the matter further during the remainder of the cross-examination. The defendant argues that the trial judge’s admonition regarding the “dangerous” nature of the proposed cross-examination effectively prevented his attorney from pursuing a legitimate line of inquiry which was of vital importance to the defense. We do not read the admonition in that manner. As we have noted, it is unfortunate that the trial judge did not rule specifically on the motion to direct the witness not to mention the appellant’s involvement with the other crime until he could rule on its admissibility. It was the moving party’s obligation, however, to insist upon a ruling on the motion, and the fact that counsel allowed the argument to divert the judge from a ruling on the particular motion cannot be said to be error. This is especially true where, as here, the ruling that was made was both reasonable and correct though not responsive to the original motion.

Further, the judge did not limit the area of inquiry open to the defendant; he merely pointed out that if the cross-examination probed into the unrelated crime to the extent that it raised questions of an impeaching nature, he would permit the Government to rehabilitate the witness by exploring the circumstances of the crime to show that the witness was either not involved or only incidentally involved. That, we believe, was a proper admonition. Indeed, it was no more than an admonition, for it was coupled with the statement that the court was not in a position to prejudge a question which the cross-examination had not yet reached. That defense counsel did not intend to impeach the witness with the prior offense, but only to raise the question as it related to possible promises made by the Government which might have influenced the witnesses’ testimony, is of no moment to Jackson’s contention on appeal since the judge’s ruling on the matter did not preclude the inquiry counsel sought to make. Although there appears to have been a misunderstanding between counsel and the judge as to what was or was not decided, a fair reading of the colloquy will not support the appellant’s contention that it foreclosed an area of cross-examination.

II

The appellant’s second contention concerns remarks made by the prosecutor during his closing argument which allegedly vouched for the credibility of Government witness Romak. The most questionable remark by the assistant United States Attorney, and the only one which we need address, was:

“But he [Romak] told you that there reached a point where he decided to testify. He came in and talked to me, and he stated he told the truth, and he told the truth. And you saw him testify.”

It has long been the law in this and other circuits that it is error for a prosecutor to inject into the proceedings his personal opinion as to the credibility of witnesses. Lawn v. United States, 355 U.S. 339, 359, 78 S.Ct. 311, 2 L.Ed.2d 321 (1957); United States v. Greer, 467 F.2d 1064, 1072 (7th Cir. 1972); Hall v. United States, 419 F.2d 582 (5th Cir. 1969); United States v. Hamilton, 409 F.2d 404, 407 (7th Cir. 1969); Gandy v. United States, 386 F.2d 516, 517 (5th Cir. 1967); Gradsky v. United States, 373 F.2d 706 (5th Cir. 1967).

In Hamilton, this court deprecated the use of the personal pronoun “I” in closing argument but held the error to be harmless where the statement was not likely to have misled the jury “into believing that the prosecutor was hinting at private knowledge beyond the evidence adduced in Court.” United States v. Hamilton, 409 F.2d at 407. Here, though the prosecutor tread dangerously and irresponsibly close to the precipice of reversible error, the statement, when considered within the context of the entire argument, was not likely to have misled the jury into believing that the prosecutor had information to support the witness’ credibility which had not been placed into evidence. The prosecutor’s assertion that the witness told the truth was followed immediately by his statement that the jury had seen him testify and could judge for themselves his credibility. The statement “and he told the truth” can, therefore, be read as an exhortation to the jury to decide on the basis of their personal observations that the witness was telling the truth. Thus, though we do not approve of the prosecutor’s first person assertion that the witness told the truth, we find the suggestion that the prosecutor had personal knowledge of the witness’ veracity insufficient to warrant reversal.

The judgment of the district court is affirmed.

      . Romak pled guilty prior to Jackson’s trial and was given probation.

      . The charge was later dismissed by the Government.


author: JAMESON, District Judge:

text:
    Joseph A. TERRACCIANO, Plaintiff-Appellant, v. McALINDEN CONSTRUCTION CO., Defendant-Appellee.
    No. 809, Docket 71-1718.
    United States Court of Appeals, Second Circuit.
    Argued May 2, 1973.
    Decided Sept. 28, 1973.
    Paul C. Matthews, New York City, for plaintiff-appellant.
    Thomas L. Rohrer, New York City (Healy & Baillie, New York City, of counsel), for defendant-appellee.
    Before FRIENDLY and HAYS, Circuit Judges, and JAMESON, District Judge.

       Of the United States District Court for the District of Montana, sitting by designation.

   JAMESON, District Judge:

This is an appeal from a judgment for $5,000 entered in favor of plaintiff-appellant, Joseph Terracciano, against his employer, defendant-appellee, McAlinden Construction Co., on a special jury verdict in a personal injury action brought by appellant under the Jones Act (46 U.S.C. § 688) and general maritime law.

Background Facts

In August, 1967 McAlinden Construction Co. entered into a contract with the Sears Oil Company to deepen a portion of the Hudson River adjacent to the Sears dock at Glenmont, New York. The job was accomplished by drilling holes in the river bed into which explosives were placed and later detonated.

The drilling and loading were done from a 30-foot drilling barge on which were mounted two air-driven drills. The barge was anchored by two cables attached to anchors placed on the river ■ bed and two cables attached to points on the river bank. It was moved by means of a winch with four drums, one for each anchor cable.

At each barge location two rows of five holes each were drilled, with the holes spaced at intervals of about five to six feet. Each hole was loaded immediately after drilling with a charge consisting mainly of Petrogel, an explosive, interlaced with prima-cord, a rope-like' detonation-initiating device. Each charge was topped with a canister of Farmex, which is 50% nitroglycerin (“straight”) dynamite. The holes were loaded so that the Farmex canisters would extend a few inches above the river bed.

At the end of each day the charges set during the day were detonated by electrically firing two charges. The remaining charges were set off by shock waves from these detonations, a method known as propagation.

This plan of operation was designed by Joseph McAlinden, president of appellee corporation. Merritt McAlinden, another officer of the corporation, represented the company at the job site and was there for the blasting period.

On September 18, 1967 the barge crew consisted of Donald Mathieu, barge-foreman and charge-loaded for one of the drills, Alexander Elcavage, the other loader, and two drillers, Gary Purweiler and Joseph Terracciano, the plaintiff-appellant. A number of holes had already been drilled and loaded. Terracciano was having difficulty with his drill on account of loose rock falling back into the hole he was drilling. Mathieu came to his aid, assumed charge of the drill, and attempted to clear the hole by raising and lowering the drill within the hole.

At this time a 660-foot tanker, the Volvula, was approaching the barge area on its way down stream. When the stern of the Volvula was abreast of the barge there was an explosion beneath the barge. All of the charges were detonated, and the barge occupants were thrown into the air.

Appellant, who was 23 years of age at the time of the accident, sustained permanent crippling foot injuries as a result of the explosion. An attending physician testified that appellant will always have some difficulty in walking and will never be able to stand for long periods, do any heavy lifting, or return to his former occupation as a manual laborer. He can be rehabilitated to do sedentary work, but rehabilitation presents some difficulty due to appellant’s below average I.Q. and inability to read at a level higher than normal for a second grade student. He has not been gainfully employed since the accident. At the time of the accident his work expectancy was about 37 years.

Proceedings in District Court

It was appellant’s theory of the case that a wake from the passing Volvula moved the drill barge, causing the end of a drill to wander on the river bottom and strike a loaded hole, detonating the charges contained therein. Appellant contended that (1) the barge was unseaworthy, and (2) appellee was negligent in using a makeshift anchor and sensitive explosives capable of being detonated by shock, and in permitting drilling in close proximity to a loaded hole.

Appellee contended that appellant was not a seaman (to preclude application of the Jones Act) and denied that it was negligent or that the barge was unseaworthy. It contended further that if it were found liable, its liability should be limited under 46 U.S.C. § 183 et seq. to the value of the drilling barge after the explosion on the ground that the cause of the explosion was without the privity or knowledge of appellee’s managing officers.

As noted supra (note 1), the jury in its special verdict found that appellant was a seaman and that appellee was negligent, but that appellee’s officers were without privity or knowledge of the negligent act causing the accident. The jury also found that the barge was seaworthy. Judgment was entered for $5,000, the amount fixed by the jury as the value of the barge after the explosion. Appellant’s post-trial motions for a new trial and for a judgment notwithstanding the verdict were denied. This appeal followed.

Appellant contends that (1) there was no substantial evidence to support the jury’s finding that the explosion was caused by appellee’s negligence without the privity or knowledge of its managing officers; (2) the amount of damages was grossly inadequate; and (3) the court erred in refusing to charge that alleged violations of safety statutes and regulations constituted negligence.

Limitation of Liability

The crucial question on this appeal is whether appellee sustained its burden of showing that its managing officers were without privity or knowledge of the negligence which caused the explosion. This issue received little attention by either counsel in their closing arguments. The primary thrust of the argument on negligence was whether appellee had taken reasonable precautions in its method of operation and whether appellant had sustained his burden of showing the explosion was caused by appellee’s negligence.

At the close of the argument, the court asked appellee’s counsel whether his “limitation of liability point [was] out.” At the hearing on post-trial motions, the court suggested that he was not sure the jury understood the issue with respect to negligence without privity or knowledge, stating that “although the Court clearly stressed the point in its charge to the Jury and gave them a guide for criteria, neither Counsel argued the point to the Jury”. The court pointed out further that at the request of the jury the charge on this subject was repeated, and the jury returned its verdict some 35 minutes later.

Appellee recognizes that the “particular negligence that the jury found is, of course, not known.” Calling attention to the “two modes where the negligence might lay, i. e., the plan and the performance,” appellee refers to the fact that “Defendant’s counsel earlier suggested to the Court below on the post-trial motions, some seven possibilities of negligence in the performance by the workmen that day.” The primary thrust of appellee’s argument on appeal, however, is that the accident could not have occurred had Mathieu, the foreman, “kept the ‘down’ pressure on the inshore drill”, and his negligence was not that of a managing agent or superintendent.

Mathieu testified that he had down pressure on the drill and it was in “Down position, against the bottom of the hole” and a wandering drill could not have caused the explosion. He admitted, however, that he had been working the drill up and down just prior to the explosion and testified that “if the conditions were too rough we would have to [stop drilling]” and that “we weren’t loading or permitting anything for the other drill at the time [the ship passed].”

Accepting Mathieu’s testimony, Joseph McAlinden testified that a wandering drill steel or sand pipe could not have caused the explosion. Appellee refers in its brief to the “courtroom tension created when the two McAlinden witnesses sought anxiously to avoid stating openly what had become obvious: that if the foreman Mathieu, present in the courtroom, had kept the ‘down’ pressure on the inshore drill, the accident could not have happened. Merritt McAlinden, the officer of appellee in charge of the job, however, testified that “It was a premature blast and no one knows how or why.” Both Mc-Alindens admitted on cross-examination that immediately after the accident they had expressed opinions to the effect that the movement of the barge from the wake of the passing ship had caused the drill steel to wander into an adjacent hole and cause a premature blast.

It is well settled that limitation of liability is an affirmative defense and that the defendant has the burden of proving that its officers and managing agents lack privity or knowledge. In re Marine Sulphur Queen, 460 F.2d 89, 101 (2 Cir. 1972). To sustain its burden of proof a defendant must show how the loss occurred, together with its lack of privity to or knowledge of the asserted cause. If it cannot show how the loss occurred, a defendant must exhaust all the possibilities, and show that as to each it was without the requisite privity or knowledge. The S.S. Hewitt, 284 F. 911, 912 (S.D.N.Y.1922).

Appellee did not produce any evidence as to the cause of the accident, aside from the inference it now draws from Mathieu’s testimony. Appellee’s witnesses testified that the explosion was not caused by a wandering drill and that the method appellee followed was safe and reasonable. The only affirmative evidence presented by appellee as to the cause of the accident was Merritt Mc-Alinden’s testimony that “It was a premature blast and no one knows how or why.”

It cannot be said, as appellee apparently now contends, that it was shown by Mathieu’s testimony that the explosion was caused by his negligence in failing to keep the down pressure on the drill. No witness testified that in his opinion this was the cause of the explosion; nor did counsel so contend in his closing argument. On the contrary, appellee’s witnesses in their testimony and counsel in his argument accepted Mathieu’s testimony that the drill was down when the explosion occurred. No other witness contradicted this testimony.

As stated above, Merritt Mc-Alinden, who heard Mathieu’s testimony and followed him on the stand, testified that “no one knows how or why” the premature blast occurred. Appellee made no effort to explore and exhaust all possibilities as to the cause of the accident and show lack of privity and knowledge as to each, although at a post-trial hearing, counsel suggested seven possible acts of negligence in performance of the work. Its representative on the job site having claimed ignorance of the cause of the explosion, appellee failed to sustain its burden of proving lack of privity to or knowledge of the cause of the accident.

The court did not charge the jury that the defendant had the burden of proof on the issue of limitation of liability. He expressed some doubt as to whether the jury fully understood this issue, but concluded that “there was evidence from which the jury could have found either way on that point.”

The evidence with respect to both issues — negligence and privity and knowledge — leaves much to be desired. Counsel for both parties complain that they were unduly rushed in the trial of the case. Counsel for appellant states that the entire trial, from the selection of the jury through closing arguments, took six hours of trial time and that counsel were repeatedly admonished that they were “taking too long”. Counsel for appellee states that appellee began its case at 11:35 A.M. and was required to call three fact witnesses, one expert witness, and read from depositions before the noon recess. He contends that “The rushed summations of counsel could not fully cover all the evidence and points involved in the case.”

Appellant contends further that appellee was not entitled to a jury trial on the admiralty defense of limitation of liability. It is true that proceedings for limitation of liability are ordinarily tried to the court without a jury. Here, however, the parties expressly stipulated for a trial by a jury of six persons. The form of special verdict submitted to the jury contained eight questions, including two questions relating to the issue of limitation of liability. No exceptions were taken to the form of verdict and no question was raised in the district court with respect to the trial of the limitation issue by a jury.

Because there is no way to determine from the findings below what negligent conduct the jury found to have caused the appellant’s injuries, it is impossible to remand solely for a determination of whether the appellee met its burden of proof in establishing that the negligent conduct occurred without the privity or knowledge of its officers or managing agents. We therefore remand the entire case for a new trial.

Reversed and remanded.

      . Tiie jury found that (1) appellant was a seaman; (2) appellee was negligent; (3) appellant’s damages were $50,000; (4) the corporate officers, managing agent and superintendent of appellee did not have privity or knowledge of the negligence which caused the accident; and (5) the value of appellee’s vessel after the accident was $5,000.

      . This section provides :
      “Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply;”

      . Appellant offered the deposition of Dr. Murray Burton, an orthopedic surgeon who treated appellant and to whom he was referred by appellee. Both parties accept Dr. Burton’s testimony but differ on the inferences to be drawn therefrom.

      . Section 183 provides in pertinent part: “The liability of the owner of any vessel * * * for any act, matter, or thing, loss, damage, or forfeiture done, occasioned, or incurred, without the privity or knowledge of such owner * * * shall not * * * exceed the amount or value of the interest of such owner in such vessel % ;J: f)

      . Appellee had filed a third-party complaint against the owner of the Volvula alleging that the explosion was “caused by the negligence and fault of the Steamship VOLVULA” and its employees “in that, notwithstanding clear and exjdicit warning, they caused and allowed the VOLVULA to pass the drilling platform at too close a distance, at an excessive speed, with her propellor turning, creating a severe water turbulence and wake which caused the drilling platform to surge and previously loaded explosive charges to detonate prematurely * * Prior to trial the third-party complaint was dismissed without prejudice by stipulation.

      . The court had also denied motions by each party for a directed verdict at the close of the evidence.

      . Likewise the court’s charge on the issue of negligence was directed to the reasonableness of the method employed in drilling the holes and detonating the charges.

      . “The Court: Do I take it, Mr. Rohrer, from your summation that your limitation of liability point is out?
      “Mr. Rohrer: No.
      “The Court: Where is the evidence of the value of the vessel in this case?
      “Mr. Rohrer: He testified that as it was pulled out on the bank it would be about $1,500.”

      . “Q. Based on tlie testimony of yonr foreman, and based on anything you know about the job, did that drill steel or sand pipe wander causing that explosion?
      “A. My opinion is no, sir.
      * * *
      “The Court: Would that raise up and lower with a wave under the barge?
      “The Witness: No, sir, if he had down pressure, which Donny said he had, and the drill was down, the barge would rise and fall but the drill steel itself would stay * * * on the bottom.”

      . In his argument to the jury, defendant’s counsel apparently accepted Mathieu’s testimony that he had the drill steel down in the hole and even if the barge lifted it wouldn’t have moved.

      . In answers to interrogatories dated April 29, 1970 (almost three years after the accident) and signed by appellee’s counsel, the answer to interrogatory 66, “What was the cause of the explosion?” reads: “Defendant believes that the wake of a passing vessel caused a drill to come into contact with a previously loaded charge of explosives.”

      . Appellant notes that the court did not charge the jury that defendant had this burden, but concedes that counsel took no exception to the charge.

      . “The right to seek exoneration from or limitation of liability provided in § 183 provides a unique remedy to shipowners. To balance this advantage, the shipowner has the burden of proof to establish that the loss of the vessel was occasioned without his privity or knowledge.” Petition of Long, 295 F.Supp. 857, 858 (S.D.N.Y.1968), aff’d, 439 F.2d 109 (2 Cir. 1971).

      . As Judge Learned Hand said in The S. S. Hewitt, “This, to be sure, he [the owner of the vessel] need not always do by going over the possibilities, item by item. * * * The relevant point is that he undertakes to prove tliat, whatever the cause of the loss, he was ignorant of it; that burden he undertakes, with all the possibilities which it may involve.” 284 F. at 912.

      . It appears from the transcript that at this time the court said: “This case is coming to a conclusion in a half hour, whether you are finished or whether you are not.”

      . It lias been held that where both a claim in law and a defense in admiralty are asserted, “the rights of the parties may be determined by the jury except for the right to the defense in admiralty which must be determined by the court in admiralty.” Famiano v. Enyeart, 398 F.2d 661, 664 (7 Cir. 1968), cert. denied, 393 U.S. 1020, 89 S.Ct. 627, 21 L.Ed.2d 564 (1969).

      . Where, as here, there are multiple claims and an inadequate fund, the owner of the vessel usually seeks a “concursus” to marshal all claims to ensure an equitable distribution of the fund if the owner establishes 1ns defense of limitation of liability. See Maryland Casualty Co. v. Cushing, 347 U.S. 409, 74 S.Ct. 608, 98 L.Ed. 806 (1954); Lake Tankers Corp. v. Henn, 354 U.S. 147, 77 S.Ct. 1269, 1 L.Ed.2d 1246 (1957). Appellee did not seek a concursus in this case.

      . In view of this conclusion it is unnecessary to consider the other contentions on this appeal.


author: WIDENER, Circuit Judge:

text:
    UNITED STATES of America, Appellant, v. SOUTHERN RAILWAY COMPANY, Appellee.
    No. 72-1794.
    United States Court of Appeals, Fourth Circuit.
    Argued June 4, 1973.
    Decided Oct. 15. 1973.
    Helen F. Hoyt, U. S. Bureau of Enforcement, I. C. C., Richard I. Chaifetz, U. S. Dept. of Justice (Brian P. Gettings, U. S. Atty., John L. Murphy, Chief, Government Regulations Section, Crim. Div., U. S. Dept. of Justice, Bernard A. Gould, Director, Daniel M. O’Donoghue, Asst. Director, U. S. Bureau of Enforcement, I. C. C., on brief), for appellant.
    H. Merrill Pasco, Richmond, Va. (Dennis P. Brumberg, Hunton, Williams, Gay & Gibson, Richmond, Va., Fred C. Alexander, Jr., and Boothe, Prichard & Dudley, Alexandria, Va., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and CRAVEN and WIDENER, Circuit Judges.
   WIDENER, Circuit Judge:

The United States appeals from the dismissal of an information by which Southern Railway Company was charged with eight violations of the Elkins Act, 49 U.S.C. § 41(1), in wilfully failing strictly to observe its published tariffs. We dismiss the appeal on account of former jeopardy, and expressly do not reach or pass upon the merits of the decision of the district court.

On eight different occasions between November, 1968 and the end of August, 1969, the Southern Railway Company (Southern) received and shipped eight separate shipments of sponge rubber carpet for the General Tire and Rubber Company. Each shipment was made under Southern’s tariff, called the Mixture Rule, which allowed General Tire to receive a lower freight rate than it otherwise would have qualified for under regular freight rates. Another Southern tariff required certain documentary verification to be supplied when shipments were made under the Mixture Rule.

The applicable tariff in this case provided that the “. . . shipper must attach manifest showing total weight of each article loaded in or on each trailer or execute the following certification on the bill of lading and shipping order: “Shipper hereby states that the weight of any one article ([1001] as separately listed in the index of UFC) in this consignment does not exceed:

(a) 23,100 pounds where rates apply on weight not exceeding 38,500 pounds;

24.000 pounds where rates apply on weight not exceeding 40,000 pounds;

42.000 pounds where rates apply on weight not exceeding 70,000 pounds;

46,200 pounds where rates apply on weight not exceeding 77,000' pounds;

(b) Sixty (60) percent of the actual weight of lading on each flat car.”

On January 27, 1972, the United States filed the information which charged fifteen violations of the Elkins Act, 49 U.S.C. § 41(1). The first eight counts charged Southern with eight separate violations of the Act in that it “. . . did wilfully fail strictly to observe its published tariffs for freight all kinds . . . ” by allowing General Tire to make the above mentioned shipments under Southern’s Mixture Rule without requiring General Tire to supply the appropriate documentary verification that the shipments qualified for the transportation rate charged under the applicable tariff. That is, the government charged that Southern had failed to require General Tire to attach a manifest or execute a certification with respect to these eight shipments as was required by Southern’s own tariff..

On April 3, 1972, Southern filed a motion to dismiss claiming that the shipping orders contained the certification required by the tariff. It also, on this date, filed a notice that it would move the court to grant its motion to dismiss on April 7, 1972.

On April 7, 1972, the district court heard oral argument on Southern’s motion to dismiss. At the hearing, Southern filed an amended motion to dismiss, over the government’s objection. The amended motion claimed that the certificate or manifest alleged to be absent in the eight shipments in question was actually contained in the shipping orders attached to those shipments.

During the hearing, the district court received, without objection, the eight shipping orders which accompanied the eight shipments in question and copies of the applicable tariff as defendant’s exhibits one and two. The court also allowed each party to fully present its contentions to the court. At the conclusion of the hearing, the district court said:

“I think that the shipping order constitutes a manifest, and for that reason the motion of the Defendants insofar as Counts One through Eight will be dismissed.”
(The court obviously referred to counts 1-8 of the information.)

The government then filed a motion asking the district court to reconsider its ruling on the motion to dismiss, which was denied by a memorandum opinion and order dated April 19, 1972. The court reaffirmed its decision of April 7, 1972, saying that the shipping orders attached to the shipments in question were a substantial, if not a literal, compliance with the tariff requirement of a manifest.

On appeal, the government contends the district court erred in holding that the shipping orders accompanying the eight shipments in question complied with the manifest requirement of the tariff. It takes the position, supported by authority, that a common carrier must strictly comply with its published tariffs and that Southern failed to do so in this case. However, as before mentioned, we do not reach this issue for we first consider Southern’s contention that this court is without jurisdiction in this appeal because further prosecution would violate the double jeopardy clause of the United States Constitution.

The authority of the United States to appeal is under 18 U.S.C. § 3731, the relevant portion of which is:

“In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.”

Southern contends that the decision of the district court was actually an acquittal on the merits, and to allow it to be tried after the dismissal would amount to double jeopardy. The government answers that the district court’s decision was not an acquittal, but merely a dismissal of the information, and that no jeopardy attached.

The Supreme Court has spoken recently on appeals by the government under 18 U.S.C. § 3731. In United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972), the government was allowed to appeal under § 3731 because the district court, relying only on the facts alleged in the indictment, dismissed the charges based on a determination that the statute on which the indictment was drawn was invalid under the Speech and Debate Clause of the Constitution. In discussing the issue of when the government can take an appeal under § 3731, the court said:

“Under [Sisson], an appeal does not lie from a decision that rests, not upon the sufficiency of the indictment alone, but upon extraneous facts. If an indictment is dismissed as a result of a stipulated fact or the showing of evidentiary facts outside the indictment, which facts would constitute a defense on the merits at trial, no appeal is available.” 408 U.S. at 506, 92 S.Ct. at 2534.

In United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970), the court ordered dismissed an appeal by the government because the district court’s action in granting defendant’s motion in arrest of judgment after the jury had returned a verdict of guilty was actually an acquittal on the merits. The opinion contains a history of § 3731 as it existed before the 1971 amendments, and in discussing the application of the statute to the case before it, the court said:

“As we have shown, what the District Court did in this case cannot be distinguished from a post-verdict acquittal entered on the ground that the Government did not present evidence sufficient to prove that Sisson was insincere. A primary concern of the bill [§ 3731] that emerged into law was that no appeal be taken by the Government from an acquittal no matter how erroneous the legal theory underlying the decision.” 399 U.S. at 299, 90 S.Ct. at 2134.

Although Brewster and Sisson were decided under § 3731 as it existed prior to the 1971 amendments, those cases are still instructive. The purpose of the amendments was to eliminate technical distinctions in pleading that limited the government in taking an appeal. The intent was to authorize the government to appeal any decision or order terminating a prosecution except an acquittal. Conference Report, 1970 U.S.Code Cong. & Admin.News, p. 5848. Cf. United States v. DiStefano, 464 F.2d 845 (2nd Cir. 1972). We are of opinion that, under § 3731 as amended, and the facts presented here, the proper inquiry an appellate court should make, in determining whether or not it has jurisdiction to hear a criminal appeal by the government, is whether the district court’s termination of the prosecution was actually an acquittal on the merits of the case. If it was, then no appeal may be taken by the government because jeopardy would have attached on account of the acquittal. United States v. Sis-son, supra, at 289-290 of 399 U.S., 90 S.Ct. 2117; United States v. Ponto, 454 F.2d 657, 663 (7th Cir. 1971); United States v. King, 474 F.2d 87 (4th Cir. 1973); United States v. Findley, 439 F.2d 970, 973-974 (1st Cir. 1971).

Turning to the case before us, we note first that the double jeopardy clause of the Fifth Amendment has been applied to corporations as well as to natural persons. See Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962); United States v. Armco Steel Corporation, 252 F.Supp. 364, 368 (S.D. Cal.C.D.1966). Here the district court held a full hearing on the motion to dismiss and allowed Southern to file exhibits to support the motion. Although the motion to dismiss contains language that might be read as challenging the sufficiency of the information, the issue presented to the district court was whether or not the preparation and use of the shipping orders complied with the applicable tariff. This precise issue, which, for all practical purposes, was the only issue to be tried, was what the district court decided after considering the exhibits and hearing argument. It did not rule on the sufficiency of the information, and decided in the April 19, 1972 opinion and order that the exhibits filed as used constituted a legal defense to the charge.

With these facts in mind and having read the transcript of the hearing below, the Memorandum Opinion and Order of April 19, 1972, and the record on appeal, we are of opinion that the decision of the district court, dismissing counts one through eight of the information against Southern, was in reality a judgment of acquittal taking into account the merits of Southern’s defense. Accordingly, we must dismiss the appeal for want of jurisdiction.

Appeal dismissed.

      . The remaining seven counts were dismissed without prejudice and are not a part of this appeal.

      . The applicable phrase in the pre-1971 statute was “ . . . when the defendant has not been put in jeopardy.” Thus, holdings in the cases decided under the previous statute with regard to double jeopardy are applicable here.
      Tlie 1971 amendments do not apply to any criminal case begun in any district court before January 2, 1971, the effective date of the amendments. 84 Stat. 1890.


author: TRASK, Circuit Judge: KOELSCH, Circuit Judge

text:
    CHURCH OF SCIENTOLOGY OF HAWAII, Plaintiff-Appellee, v. The UNITED STATES of America, Defendant-Appellant.
    No. 71-2761.
    United States Court of Appeals, Ninth Circuit.
    Sept. 6, 1973,

      Meyer T. Rothwacks (argued), Scott P. Crampton, Asst. Atty. Gen., Fred B. Ugast, Acting Asst. Atty. Gen., Dept. of Justice, Washington, D. C., Robert K. Fukuda, U. S. Atty., Honolulu, Hawaii, Harold S. Larsen, Grant W. Wiprud, Donald H. Olson, Tax Div., Dept. of Justice, Washington, D.C., for defendant-appellant.
    Tobias C. Tolzmann (argued), Joe Thrasher, Honolulu, Hawaii, for plaintiff-appellee.
    Before KOELSCH, WRIGHT and TRASK, Circuit Judges.
   TRASK, Circuit Judge:

The district court denied the government’s motion to dismiss in this tax refund case. Being of the opinion that the denial involved a controlling question of law and that an immediate appeal might materially advance the ultimate disposition of the case, the trial court so stated and we allowed the interlocutory appeal under 28 U.S.C. § 1292(b).

The Church of Scientology of Hawaii (Church) was granted a charter as a nonprofit religious corporation on December 8, 1964. It filed information income tax returns for the years 1965 and 1966 claiming exemption under section 501(c)(3) of the Internal Revenue Code as a church formed exclusively for religious and educational purposes, no part of the net earnings of which inured to the benefit of any private shareholder or individual. The Internal Revenue Service denied the claim of exemption and assessed tax deficiencies for the two years. The Church paid the deficiencies, filed claims for refunds which were disallowed and then filed suit for a refund of the sums paid. The issue in all of the proceedings was the claimed exempt status under section 501(c)(3). Following discovery proceedings and a motion for summary judgment filed by the Church, the government proposed a settlement whereby a refund would be made of the amount “plaintiff would have received (other than costs) had it prevailed in this litigation.” The action would then be dismissed with prejudice. This offer was rejected but the Church suggested that an offer of judgment pursuant to Rule 68 Fed.R.Civ.P. would receive favorable consideration. No such offer was made but the government caused checks aggregating $806.08 to be tendered. The tender was not accepted and the motion to dismiss was filed asserting that the action had become moot and that a justiciable controversy no longer existed by virtue of the continuing tender. The motion to dismiss was denied and this interlocutory appeal allowed.

At the outset we recognize that there must be a viable justiciable controversy before the court in order for it to act, since the court does not render advisory opinions or decide abstract propositions. California v. San Pablo & Tulare R.R. Co., 149 U.S. 308, 314, 13 S.Ct. 876, 37 L.Ed. 747 (1893). It is also entirely clear that jurisdiction to decide questions concerning federal taxes has been expressly withheld under the Declaratory Judgments Act, 28 U.S.C. § 2201. Apart from these settled rules there is left for consideration whether under the general rules of mootness there remains anything for the court to decide after an unconditional and continuing offer by the government to refund the amount the taxpayer has paid, plus interest. Appellee calls our atten-’ tion to several matters about the offer that it urges as significant. (1) The offer does not include any costs in the action; (2) there is a dispute as to the computation of interest; (3) the offer states that “the terms of settlement should not be included in the stipulation” (emphasis in original); and (4) there remain a number of unresolved questions and continuing consequences whose determination will be foreclosed by a dismissal. All of these work together, it is argued, to preserve jurisdiction against an unaccepted tender of the refund.

Appellant relies heavily upon our decision in Mitchell v. Riddell, 402 F.2d 842 (9th Cir.1968), cert. denied, 394 U.S. 456, 89 S.Ct. 1223, 22 L.Ed.2d 415 (1969), as being dispositive of this case. In Mitchell the settlor of an inter vivos trust established exclusively for charitable purposes had attempted unsuccessfully to have the Internal Revenue Service (IRS) declare it a tax exempt organization. The service had declined to do so and persisted in its demand that the trust report its income as a taxable organization, although apparently no assessment had been made by IRS nor other legal action taken. In order to obtain a determination Mitchell, the settlor, filed a trust return, remitted the sum of ten dollars to IRS in behalf of the trust and “ ‘included the statement that no tax was due, . . . and calling for a refund with reasons stated.’ ” 402 F.2d at 844. He thereupon filed suit in the district court to recover the ten dollars. In a second cause of action he asked that the trust operations be found to be tax exempt under the Code. The government later repaid the ten dollars to settlor and settlor accepted the money. The trial court dismissed and we affirmed. We held that the repayment mooted the first cause of action and the proscription in 28 U.S.C. § 2201 of the Declaratory Judgments Act stripped the court of jurisdiction to pass upon the second.

Some readily apparent distinctions make Mitchell v. Riddell, supra, a questionable precedent. The payment of the refund was not only tendered, but accepted. Again, the entire litigation was contrived by settlor. No assessment for unpaid federal income taxes against the trust or its alter ego had been made. Significantly, we said:

“Appellants are not without a remedy. The Congress has provided ample machinery for the settlement of income tax controversies. In the event a tax is assessed against the Foundation, judicial review of such assessment may be sought under the provisions of 26 U.S.C. § 7422 by paying the tax and seeking a refund in the district court, or by petitioning the Tax Court of the United States, prior to paying the tax, and in the event of an adverse decision by the Tax Court by petitioning this Court to review the decision of the Tax Court.” 402 F.2d at 847.

Here there had been an assessment for claimed tax deficiencies, payment with claim for refund and detailed statement of reasons and after denial of claim, a suit to recover payments. This is the “ample machinery for the settlement of income tax controversies” to which we pointed in Mitchell, supra.

The government also cites four cases as authority for the proposition that in no other case has a taxpayer been able “to withstand a motion to dismiss following a tender of the amount in dispute.” We consider them. In Drs. Hill & Thomas Co. v. United States, 392 F.2d 204 (6th Cir.1968), the taxpayer, a professional corporation, challenged a Treasury Regulation which would eliminate taxation of income to the corporation and cause it to flow through to the individuals on a partnership basis. The Commission tendered a refund of the entire amount in dispute and the case was dismissed, the court pointing out that the identical problem was being litigated in two other circuits where no mootness defense was available. The taxpayer was thus assured of a judicial determination. In Lamb v. Commissioner of Internal Revenue, 390 F.2d 157 (2nd Cir. 1968), the taxpayer sought a determination of the deductibility of his law school expenses. During the pendency of the litigation a similar problem was ruled against the Commissioner, prompting him to tender the refund sought by this suit. The court dismissed the action as moot pointing out the foregoing and that further proceedings against the taxpayer for the next year were barred. Thus, there appears to have been a final determination. A. A. Allen Revivals, Inc. v. Campbell, 353 F.2d 89 (5th Cir. 1965), was a case where taxpayer sought exemption as a religious and educational organization. Its suit was to recover funds paid as Federal Insurance Contributions Act taxes. It tendered the money to the taxpayer but during the litigation the Tax Court held that the taxpayer was in fact organized and operated exclusively for charitable and educational purposes and no income taxes were due. IRS also ruled that the taxpayer was exempt from employment taxes. Thus, again there had been a judicial determination of status. Regina v. United States, 208 F.Supp. 137 (W.D. Pa.1962), involved an income tax based upon a valuation of corporate stock used in an exchange. A tender of the refund sought was made and the litigation held moot and dismissed. Although the merits were not judically determined it was a non-recurring transaction and tax with no indicated collateral involvements upon which other difficulties to the taxpayer could hinge.

In none of them, therefore, was there' an even arguable reason to continue with litigation after the tender or payment was made. Thus we do not find any of the eases cited by the government as dispositive of the issues here. Looking first at the direct controversy between the parties, we note that there is nothing in the proposed refund payment to the taxpayer of sums involuntarily paid for 1965-1966 which would have assured it that the same demands would not be made for 1967 and 1968. Indeed, the contrary is strongly suggested. It has long been the rule that “[m]ere voluntary cessation of allegedly illegal conduct does not moot a case.” United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968). Prior to the Phosphate Export case, the Court had warned against the danger of dismissal for mootness when actions of governmental agencies are likely to be repeated, pointing out that broader considerations should not be defeated by short-term orders “capable of repetition, yet evading review. . . . ” See also Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911).

The proscription of the Declaratory Judgments Act as to tax matters, 28 U.S.C. § 2201, has no application here. Appellee had sought relief under the statute which provided a cause of action for refunds of taxes unlawfully assessed and paid. 26 U.S.C. § 7422. It did not pretend to ask for declaratory relief. The assessment had been made by the IRS, the taxes paid and claims for refunds made and disallowed and the suit for refund then properly filed. The underlying issue at all stages was taxpayer’s claim of exemption under section 501(c) (3).

Turning, then, to the appellee’s arguments in opposition to mootness, we conclude that the contention that the amount of the tender is insufficient and therefore the action may not be mooted by that tender is not well taken. Insufficient interest was claimed of $1.30; costs were not included in the tender. But no objection to the tender was made for these reasons. The rejection was based upon a letter to Mr. Wilkenfield of the Department of Justice dated May 11, 1971. It relied upon charges of collateral harassment which a cash refund would not lay to rest and a counter offer of settlement of all questions. A refusal to accept a tender for one reason waives all others. Moore v. Investment Properties Corp., 71 F.2d 711, 717-718 (9th Cir.), cert. denied, 293 U.S. 611, 55 S.Ct. 142, 79 L.Ed. 701 (1934). The same reason defeats appellee’s argument based upon failure of the government to tender costs.

The principal reasons advanced by appellee in support of the trial court’s retention of jurisdiction are that the un-. derlying issue of the status of appellee as an exempt corporation is a continuing one. It recurs each year. In addition, the failure to resolve the legal issue results in adverse collateral consequences which would be resolved by a determination of the underlying issue.

The ongoing nature of the controversy is evidenced not only by a rejection of information returns for a later year which were filed on the basis that appellee is tax exempt and a demand by IRS for regular tax returns,, but is evidenced even more clearly by an IRS “Manual Supplement,” a copy of which dated September 21, 1970, appears in the record. The stated purpose of the manual is to identify “Church of Scientology type religious organizations” and to provide guidelines for examining returns and for processing applications for exemption. The detailed instructions which purport to describe in part the religious philosophy of the Church appear to make such organizations a suspect group. It is couched in terms of directions for future guidance.

That the tender by IRS in this case of a refund of 1965 and 1966 income tax payments was not intended to be a final resolution of the tax exempt status issue is also evidenced by the fact that on

March 24, 1971, officials of the Church were subpoenaed to appear at the IRS office and bring with them:

(1) Payroll records from January i, 1967, through December 31, 1970, inclusive.

(2) W-2’s for 1967 through 1970 inclusive.

The ongoing nature of the problem was also disclosed by a levy by IRS on the bank account of the Church in the First Hawaii Bank for unpaid “941 tax” on or about March 2,1971.

Collateral consequences are also involved. An organization exempt from income taxation pursuant § 501(c)(3) is additionally exempt from contributing under the Federal Insurance Contributions Act, 26 U.S.C. § 3121(b)(8)(B), under certain circumstances. There are also advantages to a church found to be exempt under other provisions of the 1954 Internal Revenue Code.

Other collateral consequences of its indeterminate status include the right to certain postal rates and the right to solicit financial support on the basis that gifts will be tax deductible as religious or charitable contributions.

In United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), the resignation of a common director did not render moot an attack upon an interlocking directorate.

“[Vjoluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot. . . . The case may nevertheless be moot if the defendant can demonstrate that ‘there is no reasonable expectation that the wrong will be repeated.’ The burden is a heavy one.” 345 U.S. at 632-633, 73 S.Ct. at 897, quoting United States v. Aluminum Co. of America, 148 F.2d 416, 448 (2nd Cir. 1945).

See also United States v. Concentrated Phosphate Export Ass’n, supra.

In criminal cases it appears clear that the payment of the penalty will not moot the case for final appeal and determination if the judgment of conviction may entail collateral consequences. Sibron v. New York, 392 U.S. 40, 53-55, 88 S.Ct. 1912, 20 L.Ed.2d 917 (1968); Ginsberg v. New York, 390 U. S. 629, 633 n. 2, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). The rule has developed to the point where the Court stated in Sibron, supra, that “a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.” 392 U.S. at 57, 88 S.Ct. at 1900.

Granted that a criminal case is different from a civil case in many respects, it is difficult to find a reason for distinction when considering whether a case or controversy exists under Article III of the Constitution. Certainly we find no distinction under the circumstances of this case.

Our conclusion in this respect if fortified by the judgment of the United States District Court for the Western District of Missouri in First Federal Savings & Loan Ass’n v. United States, 288 F.Supp. 477 (W.D.Mo.1968). In a fact situation quite similar to the case here, that court held that a tender (as distinguished from payment) was not effectual to moot the case and that the possibility of a continuing recurrence of the problem was sufficient to entitle the taxpayer to have the underlying legal issue determined.

We must conclude with the admonition that what we say and hold here on the issue of mootness is not intended to indicate any view upon the merits. Whether the Church is eligible and can qualify for an exemption from payment of income taxes under section 501(c)(3) of the Internal Revenue Code for its taxable years 1965 and 1966 must be determined upon the evidence presented at the trial upon that issue. We only answer the question certified by the interlocutory appeal which is that the defendant’s motion to dismiss on the ground stated should be denied.

KOELSCH, Circuit Judge

(dissenting.)

If a judgment on the merits would be worth the judicial time, the outlay of 'money, and the attorney’s efforts, I would hasten to join in the court’s opinion. No good purpose would be served, now that the judicial process has been initiated, to dismiss this suit only to have a similar one commenced and prosecuted at some future time. However, I am convinced that the trial, which the Commissioner seeks to avoid, will settle nothing more than the church’s income tax status for the particular years under consideration — 1965 and 1966. Why, then, should we permit litigation which bids fair to be involved and time consuming to continue ?

The collateral estoppel effect of a judgment in an income tax matter is generally limited, because each year’s taxes are based upon facts peculiar to that particular year, and give rise to separate claims by the Collector. Although the doctrine does operate in the field of tax law, the factual peculiarities of the subject have limited its application.

Thus in Tait v. Western Md. Ry. Co., 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1405 (1933) the Court, concluding that the concept of res judicata was applicable in the field of tax law despite the scheme of annual tax periods, held that a prior adverse determination regarding the deductibility of an amortized proportion of the discount on sales of bonds by the taxpayer’s predecessors estopped the Collector from relitigating that issue in a suit involving a later period. However, it should be noted that the allowable discount constituted a “static fact” — one which did not derive its legal impact from events of the later period.

On the other hand, Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948) established two areas in which collateral estoppel does not operate: The first, where the legal climate changes in the interim between the suits; there, although the material fact is “static,” the prior determination is not controlling. The second, where different — in the sense of new — facts have arisen, such as a series of contracts or directors’ resolutions, although such facts may be similar or identical to facts that were peculiar to a prior year, the prior determination on the “old” facts does not control the decision regarding the legal impact of the “new.”

This “separable facts” doctrine in tax cases has been criticized as being too mechanical in its operation and exalting form over substance [United States v. Russell Mfg. Co., 349 F.2d 13 (2d Cir. 1965)] and has been confused by lower courts; but it is still good law. See Branscomb, Collateral Estoppel in Tax Cases: Static and Separable Facts, 37 Texas L.Rev. 584, 588-97 (1959). The doctrine has been defended as an application of the general rule that an issue must in fact be litigated before it can have an estoppel effect on a subsequent litigation '[Heckman, Collateral Estoppel as the Answer to Multiple Litigation Problems in Federal Tax Law: Another View of Sunnen and The Evergreens, 19 Case W.Res.L.Rev. 230, 240 (1968)] and on the basis that the relitigation of genuinely identical sets of facts with the same legal implications which the doctrine necessitates in tax cases may well require less judicial time than the appeals and remands involved in an erroneous determination by a trial court that collateral estoppel applies. Branscomb, supra, 37 Tex.L.Rev. at p. 591; 85 Harv.L.Rev. 1478 (1972).

The record in the instant case makes clear that a trial would simply establish the “separable facts” of Sunnen, not the “static facts” of Tait.

Under § 501(c)(3) church is eligible for exemption if it is a corporation “organized and operated exclusively for religious — purposes—[and] no part of the net earning of which inures to the benefit of any private shareholder or individual — ” The Tax Regulations relating to this section of the statute [Treas. Reg. § 1.501(c) (3)-l (1959)] set up two essential requirements for an exemption; one organizational and the other operational. Both must be met. A determination of the first requires an analysis of the corporation’s charter to determine whether it was organized exclusively for religious purposes; of the second, a consideration of the actual day to day operation of the corporation. Here the Commissioner has forthrightly admitted that the church meets the organizational requirement of § 501(c)(3) and, accordingly, has made clear that his objection to church’s claim of exemption is predicated solely upon operational grounds.

There are, of course, a variety of bases upon which the Commissioner can challenge a claim of exempt status, all of which involve a consideration and determination of the financial operation of the church during a given tax year. For instance, as in Founding Church of Scientology v. United States, 412 F.2d 1197, 188 Ct.Cl. 490 (1969), he may take the position that exemption should be denied because church income inured to the private benefit of its founder. Or he may assert that exemption is lost because church paid unreasonable salaries. However, under the “separable facts” doctrine, a determination that church has or has not violated the “inurement of benefits” clause during 1965 and 1966 would have no estoppel effect in litiga-' tion concerning the same issues with respect to subsequent years. This result follows both under Sunnen and under the general principle of collateral estoppel that an issue must be actually litigated in order to have an impact in subsequent litigation of' a different claim. Developments in the Law — Res Judicata, 65 Harv.L.Rev. 818, 840 (1952).

The judgment should be reversed.

      . The question certified was as follows:
      “Should the defendant’s motion to dismiss, on the ground that this civil Tax refund action be rendered moot by reason of an absolute and unconditional tender to plaintiff of the amounts sued for plus interest as provided by law, be granted.” Appellant’s Brief at 3.

      . “[I]t is well settled that federal courts may act only in the context of a justiciable case or controversy.” Benton v. Maryland, 395 U.S. 784, 788, 89 S.Ct. 2056, 2059, 23 L.Ed.2d 707 (1969); Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964).

      . Attached to appellee’s brief ivas a reproduction of a letter from the IRS dated September 24, 1971, sending back to appellee information returns it had filed based upon its claimed exempt status and notifying it that it was not eligible to file such a return, but must file federal income tax returns.

      . See footnote 3 supra.

      . The number “941” apparently refers to Form 941 which is the form on which F.I.C.A. and income withholding taxes are reported. Treas. Reg. § 39.1-4(2) (F.I.C.A.) ; § 31.6011(a)-4 (income tax).

      . See 26 U.S.C. § 3401(a)(9); Treas.Reg. § 31.3401(a) (9)-1(b) (2).
      An exemption is provided for certain withholding tax payments by religious organizations with such organizations being defined as having “the same meaning and application as is given to the term for income tax purposes.”

      . A fortiori with respect to salaries; the dollar amounts may be precisely the same but the reasonableness will vary with changes in living standards and community mores from year to year.


author: BOREMAN, Senior Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Artis Lee VAUGHT, Appellant. UNITED STATES of America, Appellee, v. Isaac LEE, Appellant.
    Nos. 72-2207, 72-2208.
    United States Court of Appeals, Fourth Circuit.
    Argued March 6, 1973.
    Decided Oct. 8, 1973.

      Charles Porter, Columbia, S.C. (Glenn, Porter & Sullivan, Columbia, S.C., on brief) for appellant in No. 72-2207.
    Isadore E. Lourie, Columbia, S.C. (Bert H. Nisonoff, Forest Hill, N.Y., on brief), for appellant in No. 72-2208.
    John K. Grisso, U. S. Atty., and Jack L. Marshall, Asst. U. S. Atty., on brief, for appellee.
    Before BOREMAN, Senior Circuit Judge, and BUTZNER and FIELD, Circuit Judges.
   BOREMAN, Senior Circuit Judge:

Isaac Lee and Artis Vaught, appellants, appeal their convictions for violation of 21 U.S.C. § 846, conspiring to unlawfully distribute heroin in violation of 21 U.S.C. § 841(a)(1), and for violation of 21 U.S.C. § 841(a)(1) unlawful distribution of heroin. They complain that the introduction of evidence of the criminal activities of an alleged co-conspirator, Raymond Gore, prior to the formation and existence of any conspiracy was fatally prejudicial. For the reasons hereinafter set forth we conclude that this did constitute error, the convictions should be set aside, and appellants should be awarded a new trial.

In late October 1971 an investigation of illegal drug traffic in the vicinity of the small community of Atlantic Beach, South Carolina, was commenced, prompted by information furnished the Federal Bureau of Narcotics and Dangerous Drugs by one John Henderson. Henderson, a former airman who had been court-martialed by the Air Force for possession of drugs, was employed by the Bureau in an undercover capacity to investigate and report on drug activities in the area. Henderson knew Lee and Vaught and was well acquainted with Raymond Gore, a seller of drugs who was indicted along with Lee and Vaught.

On December 2 and 3, 1971, Henderson and Narcotics Agent Calvin Campbell purchased hereoin from Gore. During the December 2 transaction Henderson asked Gore if he had seen Lee; Gore responded that he had not but that he expected to see Lee soon. Lee was a resident of New York. This was the only evidence even remotely associating Lee with these sales and no evidence was introduced at trial to involve Vaught in the December transactions.

On January 23, 1972, Henderson and Narcotics Agent Ellis Dean attempted to purchase pure heroin from Gore. Gore claimed he did not have enough to fill the order. At Gore’s request the three men then drove to Cladbourn, North Carolina, where Gore placed several calls to New York in an unsuccessful attempt to obtain the heroin. Gore made additional calls to New York the following day and said he had arranged a meeting and sale for the next afternoon.

On January 25, 1972, Gore, Henderson and Dean were driving in Atlantic Beach and saw Lee and Vaught driving through town. Lee approached the car in which Gore was riding and was asked if he had brought the “stuff.” Lee responded that Vaught was holding it and that it could be picked up after Vaught had attended to some personal matters. Gore, Henderson, Dean and Lee spent the next several hours at Skeeter’s Lounge, awaiting word of Vaught’s return. Around nightfall they learned that Vaught had returned to his apartment across the street from Skeeter’s. Gore, Henderson and Dean proceeded to Vaught’s apartment. Lee remained at Skeeter’s. While in Vaught’s apartment Gore obtained the heroin, handed it to Dean, and received $1,500 from Dean. After the sale had been completed, Lee entered the apartment and asked Henderson and Dean if the “stuff” was good. As the group was leaving the room, Gore attempted to give the $1,500 to Lee but Lee refused to accept it.

The grand jury returned a four-count indictment. Count I charged that Lee, Vaught and Gore conspired from on or about December 2, 1971, until April 22, 1972, to distribute heroin in violation of 21 U.S.C. § 846. Among the overt acts listed in this count were heroin sales occurring on December 2 and 3, 1971, and on January 25, 1972. Counts II and III charged only Gore with distribution of heroin on December 2 and 3, 1971, in violation of 21 U.S.C. § 841(a)(1). Count IV charged Lee, Vaught and Gore with distribution of heroin on January 25, 1972, in violation of 21 U.S.C. § 841(a)(1).

Prior to trial defendant Gore entered into a plea bargaining arrangement and agreed to plead guilty to count III of the indictment in return for the Government’s promise of nolle prosequi as to the other counts pending against him. No formal order was entered severing defendant Gore for the purpose of trial, and it appears from the record that Gore was treated in many respects as though he were on trial with Lee and Vaught as a codefendant.

Once the plea bargaining arrangement had been consummated, counts II and III of the indictment should have been treated as severed for trial purposes. Coile v. United States, 100 F.2d 806 (5 Cir. 1939). Evidence of the alleged sale of heroin by Gore in December was not admissible at the trial with respect to counts II and III and would have been admissible as to count I only if it might tend to prove a single conspiracy existing among Gore, Lee and Vaught at the time of that sale and ending subsequent to the sale on January 25, 1972.

As hereinbefore stated, appellants complain that evidence concerning the December transactions was improperly admitted, that the admission of this evidence was highly prejudicial, compelling reversal.

The rule is well settled that when two or more persons have conspired to commit a criminal offense anything said or done by one of them, during the existence of the conspiracy, and in furtherance of the common design, may be admitted in evidence against the others. United States v. Spanos, 462 F.2d 1012 (9 Cir. 1972); Laughlin v. United States, 128 U.S.App.D.C. 27, 385 F.2d 287 (1967); United States v. Sapperstein, 312 F.2d 694 (4 Cir. 1963); Glover v. United States, 306 F.2d 594 (10 Cir. 1962). For the rule to apply there must be prima facie proof of the conspiracy as alleged, i. e., the prosecution had to connect Lee and Vaught with a conspiracy existing on December 2 and 3, 1971, to make the evidence of those transactions admissible. United States v. Spanos, supra; United States v. Sapperstein, supra. The court admitted evidence of the December transactions prior to any attempt by the prosecution to establish the existence of a conspiracy. This was not error in itself since the judge may, in his discretion, permit the introduction of evidence as to things said and done by an alleged co-conspirator subject to being connected up and followed by evidence of the existence of .the conspiracy. Beckwith v. United States, 367 F.2d 458 (10 Cir. 1966);

Briggs v. United States, 176 F.2d 317 (10 Cir. 1949). The potential for prejudice arose, however, when no evidence was introduced to connect Lee and Vaught with the December sales. The court took cognizance of this lack of evidence when it struck overt acts A, B and C, those involving the December transactions, from the averments in the conspiracy charge of count I. In a prosecution for conspiracy the acts and words of an alleged co-conspirator prior to the actual formation and existence of a conspiracy are totally irrelevant and should be struck from the record. Walker v. United States, 104 F.2d 465 (4 Cir. 1939). Thus, the court erred in denying the motion to strike the evidence dealing with Gore’s acts and statements of December 2 and 3, 1971. Beckwith v. United States, supra; United States v. Elgisser, 334 F.2d 103 (2 Cir. 1964), cert. denied, 379 U.S. 879, 85 S.Ct. 148, 13 L.Ed.2d 86. This error in admitting testimony relating to the December sales, which could not have been used in a separate trial on substantive count IV and was inadmissible as to any conspiracy which originated at a later time, was prejudicial to appellants.

The admission of this mass of inadmissible, irrelevant and highly prejudicial testimony unfairly permitted the prosecution to paint Lee and Vaught before the jury as bad men associating with a criminal companion. United States v. Tomaiolo, 249 F.2d 683 (2 Cir. 1957). We think that the prejudice resulting from the admission of this evidence so permeated and tainted the entire trial as to require a reversal of the convictions of Lee and Vaught on all counts and to entitle them to a new trial.

Reversed and Remanded.

       For convenience these separate appeals were heard and considered together.

      . The prosecutor read the entire joint indictment, including counts II and III, in his opening statement to the jury.
      The trial court admitted evidence, over objection, that Gore illegally sold heroin on December 2 and 8, 1971, to federal agents. Neither Lee nor Vaught was allegedly present at that time and there was no evidence that they knew of the sale or were involved in any way with it. The court instructed the jury as follows :
      “Now this would be admissible only as to the Defendant Gore who is not on trial here, but is charged as a co-conspirator. It is not admissible as any evidence as against the other two defendants, Vaught and Lee." (Emphasis added.)
      Later the court received evidence, over objection, of a call placed by Gore to “Ike” on January 24, 1972. The court instructed the jury that “[i]t’s evidence that you can consider only as against the co-defendant Gore, himself.”

      . There was no evidence that Lee and Vaught conspired with Gore in the December sales of heroin. It is clear that the December transactions were separate from the January transaction and should have been treated separately. Either the December transactions were unrelated offenses and should have been severed when this became apparent to the trial court, Ingram v. United States, 272 F.2d 567 (4 Cir. 1959), or tliey constituted a separate conspiracy and should have been charged in a separate count, Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

      . Prior to the trial both Leo and Vaught moved for trials separate from Gore alleging, in part, that evidence of unrelated criminal activities of Gore would likely be offered in evidence. These motions were denied but they should have alerted the trial judge to the potential for prejudice. Ingram v. United States, 272 F.2d 567 (4 Cir. 1959).
      Although only Lee moved to strike this evidence at the trial we conclude that the admission of such evidence constituted plain error and that reversal is required as to Vaught also. Fed.R.Crim.P. 52(b); Cleaver v. United States, 238 F.2d 766 (10 Cir. 1956).

      . “[A] defendant in a trial in which the conspiracy count has been dismissed is likely to be prejudiced in defending the charges in the substantive counts by evidence, particularly hearsay testimony, which was admissible on the conspiracy count but which could not have been used against him in a separate trial on the substantive counts.”
      United States v. Branker, 395 F.2d 881, 888 (2 Cir. 1968).


author: PER CURIAM:

text:
    Kenneth W. ADAMS et al, Plaintiffs-Appellants, v. RANKIN COUNTY BOARD OF EDUCATION et al., Defendants-Appellees.
    No. 71-2309.
    United States Court of Appeals, Fifth Circuit.
    Sept. 27, 1973.

      Melvyn R. Leventhal, Fred L. Banks, Jr., Jackson, Miss., Jack Greenberg, New York City, Jerris Leonard, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., for plaintiffs-appellants.
    Robert E. Hauberg, U. S. Atty., Jackson, Miss., amicus curiae, for plaintiffs-appellants.
    W. E. McIntyre, Jr., Brandon, Miss., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, and MORGAN and INGRAHAM, Circuit Judges.
   PER CURIAM:

In this school desegregation case we are called upon to issue rulings with respect to five of the “sextet of indicia —student bodies, faculty, staff, transportation, extracurricular activities, and facilities,” Carr v. Montgomery County Board of Education, 5 Cir., 1970, 429 F.2d 382, applicable in such cases. As usual, the record which faces us for use in our required determination is a compendium of proposal and compromise— illustrative of the efforts of all concerned to obtain the constitutionally required unitary school system in the most expedient and least obstructive manner. Recognizing in the order of the court below a plea for direction, we undertake to formulate standards which, based upon the record which we have before us at this time, will establish the most effective and efficient unitary school system possible for the children of Rankin County.

Student Assignment

The plan originally approved for Rankin County by the District Court called for three combination elementary/junior high schools with grades 1-9, and one high school for all children within the district for grades 10-12. The alternative HEW plan, which was rejected by the Court, established a 6-3-3 grade structure with two elementary schools, one junior high, and one high school.

Under the terms of the plan as adopted, the McLaurin Attendance Center, was to house a total student body of 255 (83 white and 172 blacks). As the circumstances have actually evolved, however, this projected theoretical 2:1 ratio has developed into an approximate 10:1 ratio due to significant “white flight” and zone jumping by white students supposedly assigned to McLaurin. In the 1971-72 school year, for example, the average white enrollment at Mc-Laurin was 28, while approximately 240 black children were in attendance. This provided a total of 268 students in a building designed to accommodate a capacity of 1330.

Meanwhile, the Florence Elementary/High School complex is burgeoning with a planned 1397 students in a building designed to house only 1280.

Clearly, as recognized by the District Court, this situation thwarts the constitutional mandate for a unitary school system. But what shall be the remedy? On this record we fail to see why, given the presence of a viable unitary plan formulated by HEW, the District Court failed to require full implementation of that plan upon realizing that the first plan was not working. The law requires the court to implement the most effective plan for unitizing a school system. Wright v. Council of the City of Emporia, 1972, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51. Although we are. hesitant, from our appellate detachment, to require a plan which has been rejected by the District Court, even though we have repeatedly ordered the implementation of HEW plans immediately when less-than-effective alternative plans were adopted by a lower court, e. g., Singleton v. Jackson Municipal Separate School District, 5 Cir., 1970, 426 F.2d 1364, 1369 (Singleton IV); Banks v. Claiborne Parish School Board, 5 Cir., 1970, 425 F.2d 1040, this is one in which we think it appropriate to direct the District Court after such factual hearings and data accumulation as needed to reassess the current factual situation in Rankin County and report to this Court by November 1, 1973, what measures it believes should be adopted to rectify the problems. The Court shall furnish explicit reasons for its actions and shall enter detailed findings of fact and conclusions of law with respect to the assignment of pupils in Rankin County.

Discrimination In Hiring And Firing Of Faculty

The instance which prompted this reconsideration of the plan for Rankin County was the motion and order of the Court allowing the United States to intervene on behalf of black teachers and principals who were allegedly discriminated against either in not being rehired or from demotions by the conversion from a dual system to a unitary one. In support of this allegation of discrimination, the plaintiffs direct our attention to the undisputed 26% decline in the number of black faculty members resulting in a decrease in the percentage of black faculty from 28% to 21% in the 1970-71 school year — the year in which the unitary plan was put into effect. This result was apparently brought about by the absorption of black schools by white ones.

Having carefully reviewed the case, we conclude that the problem is that the District Court used the wrong legal standard. Under the law in this Circuit, new teachers may not be hired merely because their qualification, even if viewed by objective racial criteria, exceed those of the displaced former teachers. If the former teachers are minimally qualified for the jobs they are to receive them. We announced this principle in United States v. Jefferson County Board of Education, 5 Cir., 1967, 380 F.2d 385, 394.

Dismissals. Teachers and other professional staff members may not be diseriminatorily assigned, dismissed, demoted, or passed over for retention, promotion, or rehiring, on the ground of race or color. In any instance where one or more teachers or other professional staff members are to be displaced as a result of desegregation, no staff vacancy in the school system shall be filled through recruitment from outside the system unless no such displaced staff member is qualified to fill the vacancy. If, as a result of desegregation, there is to be a reduction in the total professional staff of the school system, the qualifications of all staff members in the system shall be evaluated in selecting the staff member to be released without consideration of race or color. A report containing any such proposed dismissals, and the reasons therefor, shall be filed with the Clerk of the Court, serving copies upon opposing counsel, within five (5) days after such dismissal, demotion, etc., ds proposed.

The District Court’s remedy for this defect was to require the Board to formulate objective standards for the hiring/firing/or not rehiring of faculty members. The private litigants insist that the only three relevant factors— given the history and current posture of the desegregation efforts in Rankin County — are (i) certification, (ii) degrees held, and (iii) tenure in the system.

The judge below realized himself that many of the problems as to reassignment of teachers would wash out with time. In making his order he contemplated making more explicit findings with respect to each of the discharged, demoted, or not rehired black educators in the future. Our remand of the case will give him the opportunity to do so, unfettered by a partially pending appeal.

This opinion should serve as a marker for the path and legal standard which the Judge must take. If black educators have been discriminated against, in spite of their qualifications for the job the Court must order their reinstatement with appropriate backpay and other equitable relief as required in each individual circumstance. In this they are not to be compared against the relative qualifications of the white persons who re/dis/plaeed them. The Court is to detail findings of fact and conclusions of law with respect to each person who has raised this claim. This will include of course the question of appropriate offsets for earnings, acceptance or rejection of tendered positions and the like.

Segregation Of Students And Faculty In The Classroom

It goes without citation that a school board may not direct or permit the segregation of students within the classrooms. If this were allowed, a school that was 50% black and 50% white might nevertheless have classes that were strictly segregated. The Constitution requires substantially more than mere contemporaneous use of school facilities. It requires a unitary school system. Notwithstanding convincing evidence of the existence of a pattern of such segregation, the Court below declined to issue an injunction because of the assurance of the board that such practices were no longer true. Given the long history of opposition to the unitary school concept in Rankin County, the Court may no longer accept the verbal assurances of the parties that they will comply with the mandate of the Constitution. Accordingly, a mandatory order is required.

Extra Curricular Activities

There have also been several allegations that the closing time of the school has been changed to an earlier hour in the day and that certain social events have been discontinued in order to avoid some of the sociological implications of a unitary school system. Of course we all know that these actions were inescapably products of the Rankin County recalcitrants in the hopes to diminish local sociological reactions. None seem justified now. On the remand, the Court shall make a thorough factual reassessment of the current state of affairs in Rankin County and take all steps necessary to eliminate all vestiges of a dual system including both curricular and extracurricular activities, social, athletic, musical and other groups. For a system that always had a school dismissal time of 3:30 p. m., we cannot believe that in the year one of court mandated desegregation there was suddenly a demand for the employment of rural students at 1:30 p. m. or that their city cousins had chores to do which years of predecessors had postponed till 3:30 p. m. Without forecasting what must be done, we emphasize the burden will therefore be a heavy one on the school board to justify its departure from the past and the customary norm. Of course most pertinent will be the rich history since the board instituted the program, in terms of its actual result as to all such extracurricular activities and those normally followed in Mississippi schools, before and after the change and, of course, the nature, timing, etc. of all extracurricular activity programs in other Mississippi school systems which are comparable in a genuine substantial sense to that of this district. As with the other matters on remand, this will call for specific findings and conclusions.

Reversed and remanded.

      . These figures were supplied to the court by the amicus brief of an association of white parents with children attending the McLaurin school. Significantly, this committee endorses the immediate implementation of the HEW plan for student assignments.

      . In Singleton III, the en banc court established as a principle of law the proposition that school boards must, when converting from a dual system to a unitary one, establish and abide by written non-racial criteria for the promotion, retention, etc. of faculty. 419 F.2d 1212 at 1218. We have dealt with the problem a number of times. See, e. g., Lee v. Macon County Board of Education (Sumter County School System), 5 Cir., 1972, 463 F.2d 1174 (Use of National Teacher’s Examination is permissible). See generally, Lee v. Macon County Board of Education (Florence City School System), 5 Cir., 1972, 456 F.2d 1371; Lee v. Macon County Board of Education (Muscle Shoals School System), 5 Cir., 1971, 453 F.2d 1104; United States v. Texas Education Agency, 5 Cir., 1972, 459 F.2d 600. Here we direct the District Court to determine exactly what criteria have been used in Rankin County and make detailed findings with respect to each teacher or principal in light of these findings, eliminating altogether the impermissible one of comparing qualifications of the re/dis/placed person with the white replacements.

      . The Court is also to review and make appropriate findings with respect to each nonprofessional person who has claimed discrimination in the conversion of the Rankin County system from the dual school system to a unitary one.