source: Caselaw Access Project

author: GOLDBERG, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, Janet Powell Dixon, etc., and Harlem Civic Improvement Association, Intervening Plaintiffs-Appellants, v. HENDRY COUNTY SCHOOL DISTRICT et al., Defendants-Appellees.
    No. 74-2400.
    United States Court of Appeals, Fifth Circuit.
    Nov. 11, 1974.

      W. George Allen, Fort Lauderdale, Fla., William S. Finger, William H. Ab-buehl, Florida Rural Legal Services’ Inc., Belle Glade, Fla., for plaintiffs-appellant.s.
    James F. Garner, G. Gordon Harrison, Fort Myers, Fla., for defendants-appel-lees. . •
    .Robert W. Rust, U. S. Atty., Clemens Hagglund, Asst. U. S. Atty., Miami, Fla., William B. Saxbe, Atty. Gen., Samuel J. Flanagan, Brian K. Lansberg, Attys., U. S. Dept, of Justice, Washington, D. C., for the United States. .
    Before GEWIN, GOLDBERG and DYER, Circuit Judges.
   GOLDBERG, Circuit Judge:

Among the Everglades on the. south shore of Lake Okeechobee lies Hendry County, Florida, a largely rural polity whose 13,000 residents include whites, blacks, Hispanic-Americans and S.emi-* nole Indians. On July 9, 1970, the United States filed suit in federal district court to desegregate the Hendry County-public schools. On August 4, 197Í, Chief Judge Fulton issued an order 'creating a unitary school system by combining all classes of each grade into one school in each area of the county. Janet Powell Dixon and the Harlem Civic-Improvement Association (plaintiffs) moved to intervene in the lawsuit oh September 3, 1971, and petitioned the district court to reconsider its order as. it applied to the Clewiston area of Hen-dry County. The court granted the petition to intervene but declined to reconsider the order, and Hendry Coun-' ty schoolchildren attended integrated schools for the first time in the Fáll of 1971. The present controversy began on October 26, 1973, with a motion by the County School Board for permission to, construct a new elementary school' to serve the Clewiston area of the coiinty.. Although the United States did not object to the plan, the intervening plaintiffs felt that such construction was-inimical to the maintenance of the unitary system of public education in Hendry County and asked the district court to deny the Board’s motion. After a hearing on the matter, Chief Judge Fulton determined on March 5, 1974, pursuant to this Court’s directive in Calhoun v. Cook, 5 Cir. 1970, 430 F.2d 1174, that the construction of the new school could go forward. The intervening plaintiffs appealed. We affirm.

I

Before August 4, 1971, all white students in the Clewiston area attended Clewiston Elementary School, Clewiston Middle School or Clewiston High School; all black students attended Harlem Academy. Residential patterns in Cle-wiston also followed a bifurcated pattern: whites lived in the northern portion of the community and blacks lived in the southern sector. When the School Board finally realized that it would have to obey the law and integrate its system, its first thought was to close Harlem Academy and bus all black students to one of the three formerly-white schools. The able trial judge’s order of August 4, however, required the Board to continue to utilize Harlem Academy. (

Since 1971, all Clewiston students, black and white, in grades 1-5 have attended Clewiston Elementary School; students in grades 6-12 have attended Clewiston Middle School and Clewiston High School; and all preschool, kindergarten and special education students, and students in certain vocational and physical education classes, have utilized Harlem Academy. The Clewiston schools unquestionably comprise a unitary system — every student in each grade attends the one school to which his or her grade is assigned.

In early 1973, the Florida Department of Education conducted a survey of all schools in the Hendry County system and subsequently published a report showing that one of the five permanent buildings comprising Clewiston Elementary School failed to meet State fire safety regulations, that another was considered inadequate for instructional purposes and that the cafeteria, toilet and media center facilities ■ were totally inadequate for the existing enrollment. The school was also found to be significantly overcrowded; although the desirable pupil capacity is 960 students, the current enrollment is nearly 1060 students and almost 1100 students are expected by the 1975-1976 term. The combination of these factors led the State survey staff to recommend the construction of a new elementary school in Clewiston.

In accordance with this recommendation, the School Board proposes to build a new school in three phases: phase one is designed to house all students in grades 3-5 by the 1975-1976 term; phases two and three will house all students . in grades 1 and 2 and accommodate the school’s administrative offices, a cafeteria and a multi-purpose area, but no date has been set for the completion of these phases. Until phase two is completed, grades 1 and 2 will remain in the serviceable buildings of the Clewis-ton Elementary School. The School Board plans to build the new elementary school on a site adjacent to the Clewis-ton Middle School, in a predominantly white but sparsely settled area equidistant from the respective centers of the white and black communities, 1.10 miles from Clewiston Elementary School and 1.45 miles from Harlem Academy. Not only is this site satisfactory to the State Department of Education, but the land which the school is to occupy will be donated to the School Board by the United States Sugar Corporation.

Plaintiffs oppose the School Board’s plan. They contend that no new construction is necessary because Harlem Academy could be renovated at moderate cost and used to relieve the overcrowded conditions at Clewiston Elementary School. Of greater constitutional import is plaintiffs’ argument that the School Board’s decision to build a new school rather than renovate Harlem Academy is predicated upon racial considerations — that the Board refuses to bus white children into the heart of the black community. Plaintiffs also charge that the Board’s plans will compel black children to travel to the white community for school while white pupils will be permitted to remain in their own neighborhood, so that the burden of desegregation will be thrown primarily upon the black population of Clewiston.

The trial judge, fully cognizant of the importance of new school construction as a tool for the implementation or frustration of desegregation orders, weighed the following factors in determining whether the proposed school was necessary and the location unobjectionable:

1. population growth;
2. finances;
3. land values;
4. site availability;
5. racial composition of the student body;
6. racial composition of the neighborhood of the proposed school and the residence of the students;
7. capacity and utilization of existing facilities;
8. transportation requirements;
9. the location of a proposed school to maintain equality in the burden of bussing between blacks and whites;
10. recommendations by the State Department of Education;
11. potential for future re-segregation.

A consideration of these factors convinced the district court that “the proposed construction ... is constitutionally permissible and educationally sound, and the established unitary school system in Hendry County and Clewiston will not be disturbed.” In order to obviate any possible inequities resulting from the new construction, the court ordered the Board to continue to provide free transportation to students living within a two-mile radius of the new school as well as to those residing at a greater distance.

II

To the casual observer, the location and construction of a new school would not seem to present problems of interest to the federal judicial system. In the context of school systems which have o.nly recently been desegregated,, however, such questions assume a fundamental importance in the effectuation of equal educational opportunity for all Americans. In Swann v. CharlotteMecklenburg Bd. of Educ., 1971, 402 U.S. 1, 20-21, 91 S.Ct. 1267, 1278-1279, 28 L.Ed.2d 554, 569-570, the United States .Supreme Court stressed that:

The construction of new schools and the closing of old ones are two of the most important functions of local school authorities and also two of the most complex. They must decide questions of location and capacity in light of population growth, finances, .land values, site availability, through’ an almost endless list of factors .to be considered. The result of this -vyill be a decision which, when combined with one technique or another of student assignment, will determine the’ racial composition of the student body in each school in the system. Over the long run, the consequences will be far reaching . . . The location of the schools may . . . influeneé1 the patterns of residential development [I]t is the responsibility of local authorities and district courts see to it that future school construction and abandonment are not . used and do not serve to perpetuate or reestablish the dual system.

A similar concern with the development of newly-desegregated school districts” prompted this Court to suggest in Calhoun v. Cook, supra, that federal district' courts involved in school matters should retain jurisdiction of those cases in order to ensure the continuing legality of the various educational operations.

The plaintiffs here are highly suspicious of the intentions of the Hendry County School Board, and these suspicions are certainly understandable. The history of segregated public education in the county is not “ancient history,” as the School Board blithely suggests, but is a recent and bitter memory that will forever haunt the lives of the thousands of Hendry County adults who have been denied equal educational opportunities because their skins are black.

We must review the decision of the district court not on the basis of recent memory nor on one of nascent hope, however, but under the standard of abuse of discretion. Stout v. Jefferson County Bd. of Educ., 5 Cir. 1974, 489 F.2d 97; Jones v. Caddo Parish School Bd., 5 Cir. 1973, 487 F.2d 1275. With this standard in mind, we will examine each of plaintiffs’ contentions in turn.

Plaintiffs argue that the School Board could renovate Harlem Academy and thereby alleviate overcrowding at Clewiston Elementary School, but that the Board refuses to implement such an alternative because it refuses to require white children to attend a formerly-black school in a black community. Furthermore, plaintiffs contend that, in order to pursue those same ends while faced with the district court’s refusal to approve the closing of Harlem Academy, the Board has assembled at that location all of those programs which symbolize “what blacks do best:” vocational training, special education and pre-school acculturation classes. These are serious charges. The equal protection clause of the Fourteenth Amendment forbids any invidious discrimination on the basis of race. Yick Wo v. Hopkins, 1886, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. The closing of schools formerly used for the instruction of minority students may constitute such an instance of discrimination, Arvizu v. Waco Independent School Dist., 5 Cir. 1974, 495 F.2d 499, rehearing denied, 496 F.2d 1309; Lee v. Macon County Bd. of Educ., 5 Cir. 1971, 448 F. 2d 746, and the slanting of instruction at such schools on the basis of stereotyped racial theories is similarly prohibited.

Happily, however, the record here does not demonstrate such discrimination. All of the classes at Harlem Academy are fully integrated and all Clewiston children who attend such classes attend Harlem Academy. Chief Judge Fulton could find nothing to substantiate the charge that the classes chosen for Harlem were chosen in an impermissible manner or with an impermissible motive. The district court also determined, after a thorough study of the record, that the School Board was completely justified in chosing to build a new school rather than renovating Harlem Academy. The trial court concluded that the cost of renovation would be considerably greater than plaintiffs had projected and that the School Board could reasonably have decided that even if Harlem Academy were to be restored, the age and structural configuration of the school would render such a facility much less attractive and adaptable for instructional purposes than a new plant. Finally, if Harlem Academy were to be restored, the activities presently located there would have to be moved elsewhere, presumably to some new structure of their own. In these circumstances, the district court declined to question the School Board’s choice of alternatives.

We believe that the factual findings of the trial court are fully supported by the record and that its order was clearly within the bounds of reasonable discretion. We must never conclude that federal district judges are actually school superintendents who enter office by a slightly different route and discharge certain additional responsibilities. As the Supreme Court cautioned in Swann, supra, “it is important to remember that judicial powers may be exercised only on the basis of a constitutional violation. Remedial judicial authority does not put judges automatically in the shoes of school authorities whose powers are plenary. Judicial authority enters only when local authority defaults.” 402 U.S. at 16, 91 S.Ct. at 1276, 28 L.Ed.2d at 566.

The other question in this case is whether the proposed location of the new school is a proper one under all the circumstances. We cannot tolerate resegregation of a former dual school system, and the School Board of such a system must demonstrate that the new construction will not tend to promote such a relapse. Keyes v. School Dist. No. 1, 1973, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548; United States v. Board of Public Instruction, 5 Cir. 1968, 395 F.2d 66. We must also ensure that the burdens of desegregation are distributed equally among all classes of citizens. Arvizu v. Waco Independent School Dist., supra; Cisneros v. Corpus Christi Independent School Dist., 5 Cir. 1972, 467 F.2d 142 (en banc); Lee v. Macon County Bd. of Educ., supra; cf. Quarles v. Oxford Municipal Separate School Dist., 5 Cir. 1973, 487 F.2d 824.

Plaintiffs contend that the new school site is intolerable because it lies in the white community, so that “one-way bussing” of black children into “white” schools would be the result of the Board’s plans. Although we sympathize with plaintiffs’ fears — this year is, after all, only the fourth year of integrated public education in Hendry County— those fears are not substantiated by the facts of this case.

The district court found that the proposed site is very nearly equidistant from the centers of both the white and black residential communities in Clewis-ton and that although the immediate neighborhood of the site is populated mostly by whites, the neighborhood is so sparsely settled that the area is not so much “white” or “black” as it is empty. The black students of Clewiston will be considerably closer to the new school than they are to Clewiston Elementary School; what is more important, “closer” in this case is also “close” — many black children will be able to walk to school if they so choose. Considerable numbers of pupils of each race will be ■bussed to the new school and the overall transportation burden will be distributed with equal effect upon each race. See Quarles v. Oxford Municipal Separate School Dist., supra. We detect no error in these findings of the district court.

•Chief Judge Fulton reviewed all'of the-evidence and all of the factors .bearing ■■ upon the maintenance of a unitary school system in the Clewiston area, see Swann v. Charlotte-Mecklenburg Bd. of Educ., supra, 402 U.S. at 20-21, 91 S.Ct. at 1278-1279, 28 L.Ed.2d at 569; Green v. County School Bd., 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716; United States v. Board of Public Instruction,. supra, and concluded that the effect of the new construction upon the Clewiston schools would not be regressive. For the present, we are convinced that the curative prescriptions for the desegregation of the Hendry County public school system have had a salutary effect. ' The plaintiffs’ petition for an alternative remedial elixir was carefully considered by the trial court and was found to be unnecessary. We find no cause to meddle' with the district court’s diagnosis nor. to prescribe a different medication. The order of the district court is

Affirmed.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Santos Marin VASQUEZ, Defendant-Appellant.
    No. 74-2448
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 21, 1974.
    Thomas G. Sharpe, Jr., Brownsville, Tex. (Court appointed), for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., James R. Gough, Mary L. Sinderson, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

Appellant Santos Marin Vasquez was indicted on four counts: Count I, conspiracy to rob a federally insured bank in violation of 18 U.S.C. §§ 371, 2113; Count II, robbery of a federally insured bank in violation of 18 U.S.C. § 2113(a); Count III, robbery and assault in violation of 18 U.S.C. § 2113(d); and Count IV, forcing a bank employee to accompany him without consent, in violation of 18 U.S.C. § 2113(e). The jury found him guilty on each count. He was sentenced to concurrent sentences of five years imprisonment on the conspiracy count, fifteen years each under subsections (a) and (d) (Counts II and III), and ten years under subsection (e) (Count IV). These sentences were to run concurrently for “fifteen years but consecutively to a five-year sentence imposed in a separate conviction for escaping from federal custody.

Appellant contends that only one offense was committed and that he should have been sentenced for only one violation, the robbery of a federally insured bank. It is not clear from the appellant’s brief whether he objects to the multiple sentences or to the multiple counts arising from a single transaction.

If the appellant’s objection is to the multiple counts arising from a single transaction, the matter is resolved by United States v. White, 440 F.2d 978 (5th Cir. 1971). In White, this court held that multiple convictions rendered against a single defendant under the subsections of the federal bank robbery statute are not inherently inconsistent, either actually or legally, unless subsection (c), making it a crime to receive stolen money, is involved. Since appellant was not indicted under subsection (c), there is no problem with convictions of inconsistent offenses.

Appellant’s objection to the multiple sentences is meritorious. In fact, the government concedes that the district court erred in imposing multiple sentences and, despite the fact that appellant failed to make a Rule 35 motion to correct the sentence, acknowledges that the sentences should be corrected as plain error.

Sullivan v. United States, 485 F.2d 1352 (5th Cir. 1973), holds that subsections (a), (d), and (e) of section 2113 of the federal bank robbery statute create but a single offense and that separate sentences, whether consecutive or concurrent, under these sections are improper. Therefore, the district court erred in imposing separate sentences under Counts II, III and IV. However, there was no error in sentencing the appellant under Court I, charging a conspiracy. The charge of conspiracy to rob does not merge with the substantive offense of robbery and a defendant may be convicted of both crimes. United States v. Cheers, 439 F.2d 1097 (5th Cir. 1971).

Recognizing that two of the three concurrent sentences under subsections (a), (d), and (e) are improper, this court has two alternative methods of disposition. We could either vacate all three of the sentences imposed under subsections (a), (d), and (e) and remand for resen-tencing or vacate the sentences under subsections (a) and (e) and leave effective the fifteen-year sentence under subsection (d).

We have chosen the latter option. It is clear that the district court, by having imposed concurrent sentences, intended that the maximum sentence in this case should be fifteen years. See Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961); Sullivan v. United States, 485 F.2d 1352 (5th Cir. 1973). Accordingly, we vacate the sentences imposed under subsections (a) and (e) (Counts II and IV). We affirm the judgment of the district court in all other respects.

Affirmed in part, vacated in part.


author: WISDOM, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Rudy SOTO, Defendant-Appellant.
    No. 74-1228.
    United States Court of Appeals; Fifth Circuit.
    Nov. 20, 1974.
    Jerry T. Calhoun, Houston, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Mary L. Sanderson, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before TUTTLE, WISDOM and GEE, Circuit Judges.
   WISDOM, Circuit Judge:

In this narcotics case the defendant pleads entrapment. He contends that one government agent supplied him with heroin to sell to another government agent; that he was a trapped innocent. Fortuitously, the informer allegedly supplying the heroin was murdered three months before the defendant’s trial. The defendant relies on the Bueno defense: “The defendant having testified to facts which established a defense as a matter of law, the government has the' duty to come forward with contrary proof, if it is to carry its ultimate burden of proving guilt beyond all reasonable doubt.” United States v. Bueno, 5 Cir. 1971, 447 F.2d 903, 906. In Bueno neither party produced the informer who supplied the heroin. In effect, the prosecution simply relied on the jury to reject Bueno’s credibility. In United States v. Oquendo, 5 Cir. 1974, 490 F.2d 161, 164, this Court reaffirmed the viability of Bueno even after United States v. Russell, 1973, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366, but “emphasize [d] that the question of whether the Bueno defense has been established is for the jury as long as the government has come forward with sufficient evidence contravening the defendant’s allegations”. In Soto the government did not just rely on the incredibility of the defendant’s testimony, although here, as in all cases, the jury’s traditional role of determining credibility cannot be taken from it. In this case the government came forward with sufficient evidence contradicting the defendant’s story of entrapment to justify the case going to the jury. On these facts the jury found the defendant’s defense of entrapment incredible beyond a reasonable doubt. We affirm.

Rudy Soto appeals his conviction by a jury on six counts of unlawfully transporting and selling heroin in violation of 21 U.S.C. § 174 and 26 U.S.C. §§ 4704, 4705, and 7237(b). He testified that he was entrapped by Santos Tores Lura (“Tico”), a government informer, who supplied him with the heroin in question.

There were three principal participants in the heroin transactions for which the defendant was convicted— Soto, the defendant; Ruben Monzon, a Federal undercover narcotics agent; and Tico, the government informer. Soto and Monzon both testified at the trial. Tico’s role in the transactions forms the basis of Soto’s appeal.

Tico was a known drug addict and had been arrested earlier in 1970, but not charged, for possession of heroin. His police record included numerous felony convictions. He was without visible means of support and lived in his automobile with his pregnant common law wife, who was also an addict. Monzon denied that the government had provided Tico with either money or drugs.

Tico acted as an informer both for the Federal Bureau of Narcotics and Dangerous Drugs and for the Houston Police Department. His role, in this capacity, was to identify narcotics dealers, and to arrange meetings between the dealers and agents posing as buyers. Soto, although he had no prior criminal record, was among those identified by Tico as dealers in heroin. Tico was instructed by a government agent, Arnold Dreyer, to arrange a transaction between Soto and Ruben Monzon.

In his testimony at trial, Soto depicted himself as a relative innocent, and Tico as an inveigler and the source of the heroin. Soto testified that Tico had persistently asked him to act as a middleman in heroin transactions; Tico had explained that he could not deal directly with buyers himself because of his reputation. Soto asserts that he resisted these importunings for a number of months until one morning when Tico arrived and announced that he had arranged a sale of heroin that could be consummated if Soto would help him. Soto, so he said, was worn down and acquiesced. Tico cautioned that it was important for Soto to appear to be .the actual seller. He went to get the buyer, leaving his heroin with Soto. When he returned, he was accompanied by'Mon-zon, the supposed buyer. In Soto’s presence, Tico “cut” and measured the heroin. Monzon then paid Soto and left with the heroin.

Later, there was a second transaction. According to Soto, Tico again asked him to act as the: seller. Soto, so he said,, again protested, then relented “just one more time”. Again Monzon was the buyer. Soto testified that on this occasion he told Monzon that the heroin was Tieo’s and that Tico had set the price. Monzon paid and left with the heroin.

Monzon contradicted Soto. Monzon testified that it had been Soto, not Tico, who had cut and measured the heroin at the first sale. He also testified that Soto, during the course of the first sale, had admitted that he had received the heroin from Mexico on consignment to him. Monzon testified that at the first transaction Soto pocketed the cash'payment given for the two ounces of heroin ; Soto, however, testified that, he placed the money on the dresser. Mon-zon • testified that Soto quoted a price of $600 an ounce for the herqin, and discussed the price of marijuana to be purchased in the future; ‘ Soto denied that he ever discussed the price’ of, heroin. Agent Dreyer testified that on the occasion of the second heroin transaction he maintained surveillance over the appellant’s house some forty-five minutes before the arrival of Mon-zon and that “Tico” was not present; while Soto testified that “Tico” had left four ounces of heroin just prior to the arrival of Monzon.

In Bueno, this Court held that entrapment is shown as a matter of law when an informer furnishes the contraband to the prospective seller — a rule we have recently reaffirmed. See United States v. Mosley, 5 Cir. 1974, 496 F.2d 1012; United States v. Oquendo, 5 Cir. 1974, 490 F.2d 161 (dictum); United States v. Workopich, 5 Cir. 1973, 479 F.2d 1142 (dictum). In establishing this defense, it makes no difference that government agents involved are unaware that their informer is the defendant’s supplier. As between an agent and an informer acting together, each is deemed to have knowledge of the actions of the other. Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; United States v. Bueno.

We do not question the holdings in Bueno, Oquendo, Workopich, and Mosley. But in these cases the evidence was clear that the government bought heroin from itself or the government .had the opportunity of producing the supplier of the heroin to contradict the defendant’s testimony. Here, the informer said by the defendant to have been the supplier was, at the time of the trial, beyond the reach of terrestrial subpoena. There was, however, sufficient evidence for the jury to decide the issue of entrapment. Monzon testified that the government had not supplied Tico with money or drugs. Tico had identified Soto as a dealer in heroin, thereby showing a predisposition by Soto to commit the offense with which he was charged. Dreyer, a government agent, because of information received from Tico, instructed Tico to arrange a heroin transaction between Soto and Monzon. According to Monzon, Soto expertly “cut” and measured the heroin. The jury could fairly have drawn the inference that Tico had no means with which to purchase the heroin in question; Soto’s credibility was for the trier of facts.

In sum, the issue of entrapment was properly submitted to the jury in this case. The jury decided, as was its right, that Soto’s testimony as to entrapment was incredible. He was an “unwary criminal”, not an entrapped innocent. Sherman v. United States, 356 U.S. at 372, 78 S.Ct. 819.

The judgment is affirmed.

      . This is an out-of-time direct criminal appeal from a judgment of conviction and sentence entered on April 29, 1971. On October 26, 1970, defendant was charged in a six-count indictment alleging illegal sales of heroin. Count 1 alleged that on or about July 15, 1970, the defendant had willfully and knowingly concealed, transported and sold approximately 45.75 grams of heroin, knowing the same to have been imported into the United States contrary to law, in violation of 21 U.S.C. § 174. Count 2 alleged that such heorin was not sold in or from the original stamped package bearing the required tax stamps, in violation of 26 U.S.C. § 4704. Count 3 alleged that such heroin was not sold pursuant to the required written order form from the Secretary of the Treasury, in violation of 26 U.S.C. §§ 4705 and 7237(b). Counts 4, 5, and 6 of the indictment alleged identical offenses involving a second sale of approximately 103.71 grams of heroin by the defendant on July 20, 1970. '
      At his arraignment on October 30, 1970 the defendant in open court pleaded not guilty to each count of the indictment, and the case was tried before a jury on February 1 and 2, 1971. Following a verdict of guilty on all counts of the indictment, the defendant was thereafter sentenced by the Court to a term of imprisonment for 10 years on each count, the sentences to run concurrently. No appeal was taken following the entry of judgment and sentence on April 29, 1971.
      On January 23, 1973, the defendant filed a § 2255 motion to vacate sentence contending that he had been financially unable to appeal his conviction in 1971 and that neither the Court nor his retained attorney had advised him of his right to appeal in forma pauperis and to the appointment of counsel on such appeal.
      On January 15, 1974, following an extensive evidentiary hearing the district court entered an order finding that neither the court nor counsel had advised the defendant of his right to appeal his conviction in forma pauperis and to appointment of counsel in the event of financial inability; that the defendant’s attorney had never advised the court of the defendant’s desire to appeal or of his financial inability to do so; and that the defendant had not otherwise been affirmatively advised of his rights regarding appointment of counsel on appeal. The court’s order directed that the defendant be granted an out-of-time appeal, with leave to proceed in forma pauperis.

      . These eases considered and rejected the contention that United States v. Russell, 1973, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366, had undermined Bueno.


author: DYER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Deloras SMITH, Allen Thomas, and Whitney McZeal, Defendants-Appellants.
    No. 73-3930.
    United States Court of Appeals, Fifth Circuit.
    Nov. 21, 1974.

      Ross Scaccia, New Orleans-,-- La. (Court-appointed), for Smith. ■ ■ Arthur L. Harris, Sr., New Orleans, La., for Thomas and McZeal.
    - Gerald Gallinghouse, U. S. Atty., Cornelius R. Heusel, Mary Williams Cazialas, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.
    Before BROWN, Chief Judge and, AINSWORTH and DYER, Circuit' Judges.
   DYER, Circuit Judge:

Thomas, McZeal, and Smith appeal from their jury convictions for conspiracy to possess with intent to distribute, and to distribute heroin in violation of 21 U.S.C.A. § 846. We affirm.

All appellants contest the sufficiency of the evidence used to convict them. Viewing the evidence and the reasonable inferences to be drawn therefrom in the. light most favorable to the government, Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, we conclude there was abundant evidence to support appellants’ convictions. In addition to witnesses who related street sales of narcotics involving certain of the conspirators, unindicted- eoconspirators Coleman and Morgan testified to numerous occasions on which they had carried large quantities of heroin to New Orleans and Mobile, Alabama, and, upon notifying a contact in Baltimore of their safe arrival, were met by one of the appellants to accept delivery. Upon this evidence, we are fully satisfied that the jury was entitled to find each appellant guilty beyond a reasonable doubt of the offense charged.'

Thomas and McZeal also claim their trial was tainted by the admission of evidence of prior criminality. Specifically, the government called one Hill, who testified to a series of heroin purchases both during the pendency of the conspiracy and in the previous year. While proof of criminal acts occurring outside the period of the indictment is ordinarily inadmissible, such evidence may be admitted when it is substantially relevant to an element of the offense being tried. United States v. Johnson, 5 Cir. 1972, 453 F.2d 1195, 1197. Here, Hill’s testimony tended to show the joint efforts of Thomas and McZeal in a continuing scheme for the distribution of heroin. Not only is collusion an essential element of conspiracy, but was particularly at issue in this case in the light of the defense’s argument that, because only a single appellant had normally received delivery from either Coleman or Morgan on any one occasion, the government had failed to prove the necessary concert of action between the defendants. Since the acts were closely related in time and character to the offense charged, United States v. Hayes, 5 Cir. 1971, 444 F.2d 472, 474, cert. denied, 404 U.S. 882, 92 S.Ct. 210, 30 L.Ed.2d 163, the testimony was properly admitted as proof of a plan or method of operation. See United States v. Alston, 5 Cir. 1972, 460 F.2d 48, 55, cert. denied, 409 U.S. 871, 93 S.Ct. 200, 34 L.Ed.2d 122.

Appellant Smith also makes two additional assignments of error, claiming that the trial judge unreasonably restricted her counsel’s cross-examination into the immunity offered government witness Morgan in exchange for his testimony, and that the playing of a tape recording on which her voice appeared prejudiced her defense. The facts simply do not support these contentions. The express terms of the government’s bargain with Morgan were revealed to the jury, see United States v. Cawley, 5 Cir. 1973, 481 F.2d 702, 706-707, and Smith’s counsel engaged in a full and lengthy cross-examination of Morgan, including his motivations for testifying. As to the tape recording, the record shows that it was introduced at the instance of Smith’s co-defendants and contained nothing incriminating to her. Moreover, since Smith did not object to the tape at trial, our role is limited to determining whether its admission rose to the level of plain error. F.R. Crim.P. 52(b); United States v. Valdivieso, 5 Cir. 1973, 486 F.2d 545, 547 cert. denied, 1974, 416 U.S. 971, 94 S.Ct. 1994, 40 L.Ed.2d 559. We find that it did not.

Affirmed.

      . Perhaps the trial court placed some limits on repetitive cross-examination during á bench conference not made part of the record. In the absence of such a record, we decline to speculate on the trial court’s ruling. See United States v. Dunham Concrete Products, Inc., 5 Cir. 1973, 475 F.2d 1241, 1251, cert. denied, 414 U.S. 832, 94 S.Ct. 65, 38 L.Ed.2d 66.

      . Insofar as it might be contended that the tape was prejudicial to Smith merely by showing her association with co-defendant Thomas, it must be remembered that, once a conspiracy has been established, only slight evidence is required to connect a defendant with the conspiracy. United States v. Perez, 5 Cir. 1973, 489 F.2d 51, 72. This connecting evidence had been amply established by Morgan’s testimony.


text:
    George Edward WILSON, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 74-1088
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 21, 1974.
    George Edward Wilson, pro se.
    Robert C. Flowers, Jack Boone, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

Appeal from denial of habeas to a state prisoner.

There is no merit to the contention that Art. 38.22, Vernon’s Ann.Tex. C.Cr.P., as amended effective August 28, 1967, permitting introduction into evidence of petitioner’s oral confession, was unconstitutionally applied. Petitioner’s .confession was made June 11, 1967,' to a police officer, the statute was amended effective August 28, 1967, and. the [trial, conducted July 8, 1968. Under the statute prior to the 1967 amendment a confession could not be admitted into- evidence unless witnessed by “some person other than a peace officer.” The 1967 amendment deleted this limitation.' Petitioner does not claim that his confession, admitted after a full Jackson v. Denno hearing, was involuntary but rather that a person other than a peace officer would be less likely to give, a distorted or inaccurate version of an oral statement made by an accused. The deletion of the nonpeace officer requirement is a change in a state rule of procedure. The constitutional provision against ex post facto laws has no application to procedural rules. Donald v. Jones, 445 F.2d 601 (CA5, 1971).

Petitioner failed to timely raise in the manner prescribed by Texas law the contentions raised on petition .that the grand jury which indicted him and the jury commission which selected the grand jury were selected in an unconstitutional manner. Under Texas law such á failure constitutes a waiver. See Tex.C.Cr.P., Arts. 19.27, 27.03; Scott v. State, 474 S.W.2d 226 (Tex.Cr.App. 1971) ; Smith v. State, 472 S.W.2d 520 (Tex.Cr.App.1971). In the absence of facts or circumstances which would justify relief from waiver, the state’s procedural law providing for waiver will be given effect in federal habeas corpus proceedings. Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973); Morris v. Sullivan, 497 F.2d 544 (CA5, 1974); Newman v. Henderson, 496 F.2d 896 (CA5, 1974); Rivera v. Wainwright, 488 F.2d 275 (CA5, 1974). Petitioner has shown no facts which warrant relief from waiver.

There are two other contentions without merit and requiring no discussion: a claim that petitioner’s confession included both inculpatory and exculpatory remarks, and introduction of the confession by the state “vouched” for the credibility of all parts of the confession, requiring the jury to give effect to the exculpatory remarks by acquitting the petitioner, and a claim that a defendant in a similar ease was given a lesser sentence than was petitioner.

Affirmed.

      . 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).


text:
    R. Charles THOMAS, Plaintiff-Appellant, v. ECONOMIC ACTION COMMITTEE OF MATAGORDA COUNTY, TEXAS, et al., Defendants-Appellees.
    No. 74-2410
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 18, 1974.

      Clarke Gable Ward, Houston, Tex., for plaintiff-appellant.
    Vernon L. Harrison, Jr., Houston, Tex., Jack Salyer, Dist. Atty., 23rd Judicial Dist., Bay City, Tex., for defendants-appellees.
    . Before COLEMAN, DYER and RO-NEY, Circuit Judges.

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

   PER CURIAM:

The sole question presented in this appeal is whether the District Court was correct in dismissing the complaint for want of jurisdiction.

Appellant, the former Executive Director of the Economic Action Committee of Matagorda County, Texas (a private Texas non-profit corporation not affiliated with the State), was discharged by that committee, and brings this suit for his reinstatement and for damages. Named as defendants are the Committee, its officers and directors.

The Committee is a delegate agency of the United States pursuant to 42 U.S.C. § 2701 et seq. (the Economic Opportunity Act). Appellant claims that he was dismissed by an illegally constituted board of directors acting upon information which was libelous, and that such action was taken without affording him the opportunity to be present or heard. The appellees admit that the directors were not legally serving at the time Thomas was fired. Jurisdiction is based on 42 U.S.C. § 2701 et seq., and 42 U.S. C. § 1985.

After the parties stipulated the facts, Judge Noel dismissed the complaint for failure to state a claim upon which jurisdiction could be founded. In so doing, Judge Noel found that according to Granville v. Hunt, 5 Cir., 1969, 411 F.2d 9, the requirements of 42 U.S.C. § 1985(3) were not met because there was no state action.

Appellant here contends that no state action is necessary for recovery under § 1985, and cites Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), which he contends invalidated Granville. Griffin involved a 1966 incident in which a group of whites stopped a car occupied by Negroes and clubbed them. In a damage suit filed under 42 U.S.C. § 1985(3), the Supreme Court reversed the District Court’s dismissal for lack of any state action, and held that private conspiracies such as the one alleged are covered. [Emphasis supplied].

In an opinion which relied heavily on legislative history and intent, Justice Stewart wrote, “That the statute was meant to reach private action does not, however, mean that it was intended to apply to all tortious, conspiratorial interferences with the rights of others.” He later continued, “The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.”

Although Griffin held that state action is not always necessary, both it and § 1985(3) require that there be a conspiracy to deny equal protection of the law. Appellant 'neither alleged in his complaint nor in his brief that such was the case.

Consequently, the judgment of the District Court is

Affirmed.


text:
    KINNEAR-WEED CORPORATION and C. W. Kinnear, Pliantiffs-Appellants, v. REED ROLLER BIT COMPANY et al., Defendants-Appellees.
    No. 73-3224.
    United States Court of Appeals, Fifth Circuit.
    Nov. 20, 1974.
    Rehearing Denied Feb. 12, 1975.
    William E. Kinnear, Beaumont, Tex., for plaintiffs-appellants.
    A. H. Evans, W. R. Robins, Houston, Tex., for Reed Roller Bit, and others.
    Edward A. Haight, Chicago, 111., for Hughes Tool Co.
    Clinton F. Morse, Garrett R. Tucker, Jr., Houston, Tex., for The Rucker Co., and others.
    Ralph R. Browning, C. James Bushman, Houston, Tex., for Security Engineering & Sun Oil.
    E. H. Brown, Phillips Petroleum Co., Houston, Tex., for Phillips Petro. Co.
    Dean J. Capp, Houston, Tex., for AMOCO Production Co., Amoco Oil Co.
    Tom Arnold, Robert A. White, Kenneth E. Kuffner, Houston, Tex., for Superior Oil & Continental Oil.
    K. M. Nolen, Houston, Tex., for Amoco Production Co.
    Before BELL and CLARK, Circuit Judges, and BREWSTER, District Judge.
   PER CURIAM:

This appeal is from the grant of a motion for summary judgment in favor of defendants in six civil actions claiming patent infringement.

The patent in suit, long since expired, was before this court in Kinnear-Weed Corporation v. Humble Oil & Refining Co., 5 Cir., 1968, 259 F.2d 398, reh. den. with opinion, 266 F.2d 352 (5 Cir., 1959), corrected judgment entered, 296 F.2d 215 (5 Cir., 1961). In the opinion on the petition for rehearing, we held that “. . . the claims themselves of the reissue patent are limited to a combination rotary drilling tool, bit, or drill . . .”. 266 F.2d at 352.

It is undisputed that the accused bits are not combination bits within this prior holding. The combination bit described in our holding are those having both roller cutters and blade-type cutters. The accused bits have roller cutters but no blade-type cutters.

The position of appellants, although not clear from their brief but as we understood it on oral argument, is that our prior limitation to a combination bit is invalid in that it was rooted in Finding of Fact No. 65 of the district court in the original patent litigation, KinnearWeed Corporation v. Humble Oil & Refining Co., E.D.Tex., 1956, 150 F.Supp. 143, from which the aforesaid appeal was taken to this court. It is said that this finding was erroneous, and that we should now lift the limitation so as to include the accused bits. This we decline to do.

We find no merit in this appeal in any of the particulars asserted.

Affirmed.

      . Appellees do not claim that this position is in violation of the injunction entered to prohibit the further litigation by Kinnear-Weed of certain issues respecting alleged fraud in connection with the original patent litigation in the district court. See Kinnear-Weed Corporation v. Humble Oil & Refining Co.. S.D.Tex., 1969, 324 F.Supp. 1371, aff’d, 441 F.2d 631 (5 Cir., 1971), cert. den., 404 U.S. 941, 92 S.Ct. 285, 30 L.Ed.2d 255 (1971), reh. den., 404 U.S. 996, 92 S.Ct. 532, 30 L.Ed.2d 549 (1971).


author: MANSFIELD, Circuit Judge:

text:
    Harold R. CRANSTON et al., Plaintiffs-Appellees, v. Clifford M. HARDIN, Secretary of Agriculture of the United States, Defendant-Appellee, and Albert Guilian et al., Defendants-Intervenors-Appellees, Roger L. Noble et al., Appellants, Laval Bilodeau et al., Appellants, Charles P. Ryan et al., Appellants.
    Nos. 916, 918, 919, Dockets 73-2275, 73-2367, 73-2368.
    United States Court of Appeals, Second Circuit.
    Argued June 18, 1974.
    Decided Sept. 12, 1974.

      Sanford Rosenblum, Albany, N. Y., for appellants Bilodeau and Ryan, and others.
    John P. Weatherwax, Troy, N. Y., for plaintiffs-appellees Cranston, and others.
    Irwin Goldbloom, Atty., Dept, of Justice (Irving Jaffe, Acting Asst. Atty. Gen., Morton Hollander, Atty., Dept, of Justice, Washington, D. C., of counsel), for defendant-appellee Secretary of Agriculture.
    Frederick U. Conard, Jr., Hartford, Conn. (Coleman H. Casey, Shipman & Goodwin, Hartford, Conn., of counsel), for defendants-intervenors-appellees Gui-lian, and others.
    Charles P. Ryan, Washington, D. C., for appellants Noble, and others.
    Caroline Nickerson, Montpelier, Vt., for amicus curiae Vermont Public Interest Research Group, Inc.
    William C. Kittell, Burlington, Vt., for amici curiae Alliance of the Northeast Dairyman, National Farmers Organization, and Northern Farms Cooperative Association.
    Before SMITH and MANSFIELD, Circuit Judges, and BARTELS, District Judge.

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

   MANSFIELD, Circuit Judge:

On a previous appeal in this case we held that a provision in the Connecticut Milk Marketing Order, 7 C.F.R. §§ 1015, et seq., permitting “nearby” dairy farmers to receive 46 cents per hundredweight more for their milk marketed in Connecticut than “distant” farmers — i. e., farmers located outside of the market area — was invalid. See Cranston v. Hardin, 428 F.2d 822 (2d Cir. 1970), cert. denied, 401 U.S. 949, 91 S.Ct. 937, 28 L.Ed.2d 232 (1971). We are now asked to decide whether, on remand, Judge Foley of the Northern District of New York fairly disposed of all funds held in escrow in connection with these proceedings. We hold that he did except in one instance where he charged funds that had been placed in escrow after our prior decision was announced with a proportionate share of an award to the “nearby” Connecticut farmers. In all other respects the judgment of the district court is affirmed.

The history of this protracted litigation, which we briefly recapitulate, began in February, 1967, when the action was first brought in the Northern District of New York by six “distant” dairy farmers located in New York (Harold R. Cranston, et al.) against the then Secretary of Agriculture, Orville Freeman-. The plaintiffs, who sued on behalf of themselves and all other persons in their class, claimed that the farm- location price differential in the Connecticut Milk Marketing Order, 7 C.F.R. § 1015.72 (1968), which became effective in 1959, was not authorized by § 8c(5) of the Agricultural Marketing Agreement Act, 7 U.S.C. § 608c(5) (“the Act” herein). Under the differential provision an amount sufficient to pay the “nearby” farmers 46 cents per hundredweight for their milk was first deducted each month from the monthly pool of milk receipts before distribution of that pool on a pro rata basis to all dairy farmers (nearby, intermediate and distant) selling milk in Connecticut. After three “nearby” farmers (Albert Guilian, et al.) had been permitted to intervene as representatives of their class, Judge Foley of the Northern District ordered that all amounts which plaintiffs and other “distant” farmers would, in the absence of the differential, receive over and above the pro rata share of the pool to which they were entitled be placed in an escrow account to be held by the federal Market Administrator for the Connecticut market. These deposits in escrow— totalling approximately $20,000 to $25,000 per month — were continued throughout the earlier stages of the litigation and even, as we shall see below, after this court had held that the differential was invalid.

Prior to trial of the underlying claim, which was assigned to Judge Timbers, then sitting by designation in the Northern District, two members of the plaintiffs’ class, Leonard Duncan and Kenneth Hewitt, petitioned to intervene or, alternatively, to have the suit dismissed on the grounds that the suit was collusive. Duncan and Hewitt, who were represented by attorney Charles P. Ryan, claimed that John Weatherwax, counsel for the named plaintiffs, was being paid and controlled by the Consolidated Milk Producers’ Association (CMPA), formerly the Connecticut Milk Producers’ Association. A large majority of the Association’s membership were “nearby” Connecticut farmers. That Association’s counsel, Frederick Conard, was also counsel for the defendants-in-tervenors. After a hearing on the collusion claim and an 11-day trial of the plaintiff’s underlying claim, Judge Timbers found “not an iota of credible evidence” that the CMPA, the defendants-intervenors, or the defendant himself “acted or attempted to act, or even desired to act” to control the plaintiff’s conduct in the proceedings. He therefore refused to dismiss the action or deny it class action status. Proceeding to the merits, he held that the “nearby” differential was authorized by § 8c(5) (B) of the Act, 7 U.S.C. § 608c(5)(B), which specifically authorizes adjustments to the uniform price to be paid to dairy farmers for “market differentials customarily applied by the handlers subject to such order.” See Cranston v. Freeman, 290 F.Supp. 785 (S.D.N.Y.1968).

Both the named plaintiffs and Duncan, et al. appealed to this court from Judge Timbers’ decision. Pending their appeals, the Supreme Court on December 9, 1969, handed down its decision in Zuber v. Allen, 396 U.S. 168, 90 S.Ct. 314 (1969). In Zuber several Vermont dairy farmers had challenged the validity of the “nearby” price differential in the Massaehusetts-Rhode Island Milk Marketing Order, see 7 C.F.R. § 1001.72 (1968). The Supreme Court, upholding judgments of the district and circuit courts invalidating the differential, held that the differential was not authorized by the Marketing Agreement Act since it was not related to any additional economic service performed by the “nearby” farmers. See 396 U.S. at 188, 90 S.Ct. 314. The Court also affirmed the circuit court’s final disposition of the funds which had been accumulating in an escrow account during the litigation. The circuit court had held that, although the differential was invalid from its inception, the “nearby” farmers could recover all funds escrowed prior to the district court’s decision invalidating it, since “the nearby farmers could legitimately have expected to receive, and the distant farmers to pay, the differential until it has been held invalid, after full opportunity for the presentation of views on both sides, by a court.” See Zuber v. Allen, 131 U.S.App.D.C. 109 402 F.2d 660, 676 (1968).

Following the Supreme Court’s decision in Zuber, the named plaintiffs in the present litigation filed a supplemental brief in this court urging reversal of Judge Timbers’ decision in light of Zu-ber. In a lengthy response, however, the Secretary of Agriculture urged that the entire matter should be remanded to him for possible refashioning of the differential provision and that, in the meantime, the escrowing should be continued since otherwise market conditions in Connecticut could be seriously disrupted. In an affidavit in support of the Secretary’s response, Herbert L. Forest, Director of the Dairy Division, Consumer and Marketing Service, United States Department of Agriculture, predicted that immediate termination of the differential would lead to a substantial increase in the uniform price for “distant” farmers marketing their milk in Connecticut, which would attract more milk than the manufacturing facilities could handle. Two months later, however, on April 1, 1970, the Secretary withdrew his request that the escrowing be continued since none of the parties had submitted a proposal which would effectively deal with the danger of surplus milk. In papers which he filed with this court the Secretary stated:

“After a careful review of the proposals received, the Department of Agriculture has concluded that none of the ones which it believes appropriate subjects for administrative hearings, would be likely to alleviate substantially the problem which prompted the request that the escrowing be continued; i. e., the possibility of a substantial influx of milk into the market for which there are not adequate facilities. Accordingly there are no present proposals before the Secretary which will meet the problem, and no present way of taking substantial appropriate administrative action, with a definite and reasonable time period. In the circumstances, any request for continued escrowing would serve no useful purpose, and therefore the Secretary withdraws the previous request for the continued escrowing.”

Agreeing with the Secretary that immediate termination of the “nearby” differential would disrupt the Connecticut market, but disagreeing that none of their proposals could effectively deal with the problem, the “nearby” farmers, urged this court to remand to the district court with directions either to “enter an order providing for the gradual elimination of the price differential . at the rate of 12 cents on the date of its decision, 12 cents as of dates respectfully four and eight months from the date of the decision and 10 cents as of twelve months from the date of the decision,” or to conduct hearings “with regard to whether or not such a remedy would be justifified in the interests of equity, economic efficiency and the larger public interest.” In either event, the “nearby” producers argued, this court should order “continued escrowing of the differential monies pending final termination of the challenged provisions.”

In a brief per curiam opinion we on July 16, 1970, affirmed Judge Timbers’ rejection of the claim of collusion and his ruling that the suit was maintainable as a class action but, in the light of Zuber, reversed his decision upholding the Connecticut differential itself. See Cranston v. Hardin, 428 F.2d 822 (2d Cir. 1970), cert. denied, 401 U.S. 949, 91 S.Ct. 937, 28 L.Ed.2d 232 (1971). While agreeing that “[j jurisdiction and venue, the propriety of a class action both as to plaintiffs and intervenor-defendants, claims of bias of the Judge, and the questioned adversary nature of the proceedings were all properly resolved by the court,” we said that “[i]n view of the Zuber decision, the judgment below is reversed and the case remanded to the District Court for such proceedings, including the proper disposition of funds held in escrow during the proceedings and costs and related matters, and the entry of judgment thereon as may be appropriate in the light of Zuber.” See 428 F.2d at 823.

Still not content to lay their collusiveness claim to rest, appellants Duncan, et al. petitioned for a writ of certiorari from the Supreme Court. In the meantime, back in the Northern District of New York, the “nearby” farmers renewed their request for a gradual “phase out” of the illegal differential and asked the court for a temporary injunction preventing the Secretary of Agriculture from terminating the differential until the phase-out proposal could be considered. Judge Foley granted the temporary injunction on August 5, 1970, and ordered that the payments into escrow be continued. After a series of subsequent meetings both Conard, counsel for the “nearby” farmers, and Weatherwax, counsel for the “distant” farmers who were named plaintiffs, submitted a consent judgment which contained the “nearby” farmers’ phase-out proposal.

The proposed judgment was opposed by both the ubiquitous Ryan and by the Secretary of Agriculture who maintained in a legal memorandum prepared by the Department of Justice that the district court had no power on its own to promulgate a new phasing-out differential. At a hearing held on October 14, 1970, Judge Foley did not decide the issue but continued his restraining order to permit Weatherwax to seek clarification from this court as to whether a phasing out of the differential would be permissible. Although present at the hearing, Ryan did not participate. Instead, he submitted his own petition for clarification to this court and asked for an order directing immediate termination of both the differential and the es-crowing.

This court did not respond to the petitions for clarification from both Weath-erwax and Ryan until after the Supreme Court had on March 1, 1971, denied Ryan’s petition for certiorari with respect to the collusiveness claim. Several months before that time, however, on November 1, 1970, the H.P. Hood Milk Co. moved one of its plants from Aga-wam, Massachusetts, into Connecticut. As a result of this move, approximately 350 dairy farmers (the “Agawam group” herein) who were located in Vermont, Massachusetts and Rhode Island and who had previously been marketing their milk in Massachusetts, began marketing milk as “distant” farmers in Connecticut. This influx more than doubled the size of the plaintiffs’ class and more than tripled the monthly payments into escrow, which still represented monies that “distant” farmers selling milk in Connecticut would be receiving without the illegal differential.

On April 13, 1971, this court “clarified” its previous decision by directing the district court to “order the nearby differential terminated forthwith.” In response to our direction, the district court terminated its restraining order against the Secretary of Agriculture, ordered an immediate end to the differential and escrowing, and asked the parties to prepare a final consent judgment disposing of the funds accumulated in the escrow account. During the next few weeks the named plaintiffs, plus an informal committee of 12 other members of their class, together with their attorney, Weatherwax, met with the defendants-intervenors and their attorney, Conard, and on May 19, 1971, submitted to the court a proposed consent judgment which would distribute the entire fund to all the “distant” farmers less: (1) $25,000 to the Market Administrator as escrow agent; (2) $175,000 to the “nearby” farmers and $242,300 to their attorney Conard for fees and disbursements; and (3) $275,000 to attorney Weatherwax for fees and disbursements.

At this time there was approximately $1,600,000 in the escrow fund. The awards would be charged against the entire escrow fund — i. e., they would reduce proportionately the returns of all the “distant” farmers, including the Agawam group who joined the plaintiffs’ class only after the differential had been declared illegal. In an order entered the same day, May 19, the district court directed that upon appropriate notice by the Market Administrator to all members of the plaintiffs’ and defendants-intervenors’ classes, a hearing would be held on the proposed judgment on June 7, 1971.

Prior to the hearing several persons, including the Attorney General of Vermont and an attorney named Reuben Hall, all of whom claimed to represent various members of the Agawam group, moved to intervene on the grounds that the Agawam group had a separate interest in receiving its escrow funds free of any charges for costs, attorneys’ fees or award to the “nearby” farmers. Additionally Ryan and his associate Sanford Rosenblum of Albany, New York, sought to have the hearing delayed or cancelled so that they might obtain a list of farmers for the purpose of developing additional opposition to the judgment. Despite these efforts, which included a petition for mandamus that was denied by this court on the day of the hearing, the hearing was held as scheduled and thereafter the district court received briefs from all parties wishing to file them as well as a second legal memorandum from the Secretary of Agriculture, again drafted by the Department of Justice, asserting that the court had the power to charge a proportionate share of the costs of litigation and other awards to funds that were escrowed even after this court had held the differential invalid.

More than two years later, on July 26, 1973, the district court announced its decision, which adopted the proposed consent judgment insofar as it charged costs of litigation and the award to “nearby” farmers against all the funds in the escrow account, including the funds belonging to the Agawam group. The court held that it had the power to preserve the status quo and continue the escrowing even after this court had declared the price differential invalid, pending its good faith consideration of the parties’ phasing-out proposal. Moreover, the court considered it equitable to charge the latecomers with a proportionate share of the costs of litigation and other awards since they had benefited from the litigation as much as anyone else in the plaintiffs’ class. As for the amount of the awards themselves, the court reduced the award to the Market Administrator from $25,000 to.$10,000, retained the award of $175,000 to the “nearby” farmers but reduced the award of fees and disbursements to Conard from $242,300 to $200,000, which the court directed to be paid to Yankee Milk, Inc., the successor of CMPA which had already paid Conard’s fees, and reduced the award of fees and disbursements to Weatherwax from $275,000 to $230,000. The court did not approve any award for fees or disbursements to attorney Ryan or any of his associates. The remainder-of the fund — approximately $1,430,000 —was to be paid to all “distant” farmers according to their proportionate share of the milk marketings during the entire period.

More than 150 of the plaintiffs’ class of “distant” farmers, most of whom are members of the late arriving Agawam group, are now appealing from the district court’s judgment. They are supported by the Alliance of the Northeast Dairyman, the National Farmers Organization, and the Northern Farms Cooperative Assocation, who have submitted a joint brief as amici curiae, and by Vermont Public Interest Research Group, Inc., which has also submitted an amicus brief. Attorney Ryan and his associates have also appealed from the district court’s failure to award them attorneys’ fees and disbursements.

DISCUSSION

I.

We start with the district court’s order restraining the Secretary of Agriculture from terminating the price differential immediately after this court had declared it invalid on July 16, 1970, and then charging funds collected after that date with a proportionate share of the awards approved for the costs and expenses of the entire litigation and for the “nearby” farmers. Appellants Noble, et al., who are members of the Aga-wam group, argue that the district court had no power to restrain the Secretary from terminating the differential after it had been declared illegal and that, even if it did, the restraint was arbitrary and capricious since the proposed phasing out of the differential, which the district court allegedly needed time to consider, was patently illegal and unwarranted by market conditions in Connecticut. Additionally, several amici curiae argue that it was unfair to charge the Agawam group, which entered the Connecticut market only after the differential had been declared illegal, with a proportionate share of the named plaintiffs’ costs -throughout the entire litigation as well as of the award to the “nearby” farmers, which included a large amount for their costs of litigation.

With the benefit of hindsight we find —as appellants argued below — that the district court’s prolonged consideration of the parties’ “phase-out” proposal in lieu of immediate termination was not warranted by market conditions in Connecticut. Final elimination of the differential has not disrupted marketing or produced a new flood of milk from “distant” producers seeking the higher uniform price. However, no reason is shown why the lack of probable disruptive effect should have been obvious to the district judge on August 5, 1970, when he issued the restraining order which was designed only to preserve the status quo pending the court’s further study of possible legal and economic justification for a gradual elimination of the differential. Only a few months earlier, the Secretary of Agriculture himself had urged a temporary continuation of the differential and escrowing based on the Forest affidavit, which warned that abrupt termination of the differential “would cause a substantial dislocation of milk supplies from their normal marketing channels by moving more milk into Connecticut [with] several results detrimental to orderly milk marketing in Connecticut.” Forest said that “The likely prospect, if the present escrowing arrangement is abruptly terminated and the distant zone prices increased 43.5 cents . . . is a sudden influx of milk into Connecticut followed by a reverse flow as facilities become overtaxed and the uniform blended price is reduced. This effect would disserve the orderly flow of milk to- this market, and undermine the effectiveness of [the Connecticut Order] in ensuring reasonably stable market conditions.” When the Secretary later withdrew his request for continued escrowing, it was not because he had discovered that the danger of disruption was more imagined than real, but because “there are no present proposals before the Secretary which will meet the problem.”

Adoption of the parties’ proposal for a gradual elimination of the illegal differential was not clearly beyond the jurisdiction of the district court, which is vested with broad discretion to frame decrees adopting flexible remedies for statutory or even constitutional violations of long standing. Cf. Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955); United States v. DuPont, 366 U.S. 316, 322-323, 81 S.Ct. 1243, 6 L.Ed.2d 318 (1961); Vulcan Society of the New York City Fire Department v. Civil Service Commission, 490 F.2d 387, 399 (2d Cir. 1973); Rios v. Enterprise Association Steamfitters Local 638 of U.A., 501 F.2d 622 (2d Cir. 1974). Nor do we agree that anything in the decision of this court on July 16, 1970, clearly prohibited the gradual rather than abrupt termination of the differential. While a proposal for gradual phasing out of the differential had been submitted to this court prior to its July 16, 1970, decision, our failure to order the district court to adopt it was consistent with the well-settled rule that the “framing of decrees should take place in the District rather than the Appellate Courts.” See International Salt Co. v. United States, 332 U.S. 392, 400, 68 S.Ct. 12, 92 L.Ed. 20 (1947); Chance v. Board of Examiners, 458 F.2d 1167, 1178 (2d Cir. 1972).

Thus the question of the district court’s power to order a gradual elimination of the price differential was far from frivolous. There was highly respected opinion, based on experience in marketing of milk, that a gradual elimination would best serve the purposes of the Agriculture Marketing Agreement Act. Under these circumstances the district court had jurisdiction to preserve the status quo pending its consideration of the phase-out proposal. See United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Chicago & North Western Railway Co. v. United Transportation Union, 471 F.2d 366 (7th Cir. 1972). In essence, the court was dealing with a question of first impression amidst expert predictions of seriously harmful consequences if it should fail to provide for gradual relief. Under these circumstances, the court “could make appropriate orders so as to afford the necessary time for fair consideration and decision while existing conditions were preserved.” See United States v. United Mine Workers, supra, 330 U.S. at 310-311, 67 S.Ct. at 704 (Frankfurter, J., concurring). The Secretary of Agriculture, who strenuously opposed the district court’s power ultimately to order the phasing out of the differential on its own, has conceded as much. We therefore hold that the district court had power to enter the order of August 5, 1970, and to continue it on October 14, 1970, in order to preserve the status quo pending the district court's consideration of the proposed phasing out of the differential and possible clarification by this court.

We also find no inequity in requiring members of the Agawam group to pay a proportionate share of the fees approved for Weatherwax, the counsel for the named plaintiffs, and for the Market Administrator as escrow agent. Although latecomers, the members of the Agawam group obtained the “full benefit” of the services for which these fee awards were made. See Mills v. Electric Auto-Lite Co., 396 U.S. 395, 90 S.Ct. 616, 24 L.Ed.2d 593 (1969). However, we can see no similar reason for charging members of this group with a proportionate share of the award to “nearby” farmers, or to their counsel, Conard (which should be viewed as part of an overall award to the “nearby” farmers). Justification for this overall award could only lie in the “distant” farmers’ long acquiescence in the “nearby” differential and accompanying reliance on it by the “nearby” farmers. See Blair v. Freeman, 370 F.2d 229, 239-240 (D.C.Cir. 1966); Zuber v. Allen, 402 F.2d 660, 675-676 (D.C.Cir. 1968), aff’d, 396 U.S. 168, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969). Here the late arrival of the members of the Agawam group precluded their acquiescence in a differential which did not affect them. Absent this acquiescence, there was no basis for charging them with a proportionate share of the award to “nearby” farmers. We therefore hold that so much of the district court’s judgment as charged members of the Agawam group with a proportionate share of the award to “nearby” farmers, including the award to their counsel, Conard, is reversed.

II.

The members of the Agawam group contend that they were denied due process by the district court for the reason that, following their entry into the Connecticut market on November 1, 1970, the court failed to give them formal notice of the status of the class action, see Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 564 (2d Cir. 1968), and failed to conduct an inquiry to determine whether they, as new members of the “distant” farmers class, would be adequately represented by the named plaintiffs and their counsel. The Aga-wam producers now assert that a conflict of interest existed between them, on the one hand, and the named plaintiffs and older “distant” farmers, on the other, since by the time of the Agawam group’s entry into the Connecticut market we had already on July 16, 1970, invalidated the “nearby” farm location differential, with the result that the Agawam group’s interest lay in immediate termination of the differential, whereas the older members of plaintiffs’ group favored continuation of escrowing as a means of forcing the new “distant” farmers to share financial burdens which they would escape if escrowing were terminated at once, i. e. (1) a share of the $375,000 to be paid to the “nearby” farmers and their counsel, and (2) a share of Weatherwax’s fee and expenses. In view of this asserted conflict of interest the Agawam group contends that the district court was under an obligation not only to give “formal notice” to its members but to designate subclasses under Rule 23(c)(4), F.R.Civ.P. We disagree.

The claim of conflict of interest turns out to be more illusory than real. To the extent that the alleged conflict is based upon the district court’s order charging the Agawam group with a share of the award to “nearby” farmers and their counsel, it has been mooted by our reversal of that part of the district court’s order. We furthermore find no merit in the remaining asserted basis of conflict, i. e., the alleged use of the compromise phase-out arrangement as a means of forcing the Agawam group to share Weatherwax’s fee and expenses. If the older “distant” farmers had had their way, they would have terminated the differential at once. However, they then would have risked the possibility that the “nearby” farmers would have been awarded a much larger share of the escrow fund than they received under the compromise. In either event, however, the Agawam group benefited directly from Weatherwax’s services, which were rendered in the interest of all “distant” producers, both old and new. Due in large measure to his efforts thé members of the Agawam group received a higher price for their milk than they would otherwise have received.

Turning to the question of what notice of the pendency of this action was required to be given to the Agawam group, if the group, in arguing, that its members were entitled to “formal” notice, means individual notice to each member, the simple answer is that although Rule 23(c)(2) specifically mandates that in a suit under Rule 23(b) (3) the court must direct to members of the class “the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort,” see Eisen v. Carlisle & Jacquelin et al., 417 U. S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), individual notice is not necessarily required in a suit under Rule 23(b)(1)(B), such as the present action. In actions under (b)(1) and (b)(2) it is sufficient if the notice is reasonably calculated to apprise the members of the pendency of the action. In the present case this standard was clearly met.

Prior to November 1, 1970, the pendency of the present action and the continuation by Judge Foley of the es-crowing arrangement had been the subject of newspaper publicity in the northeast and of reports by major northeastern cooperatives, including the Connecticut Milk Market Administrator, to their members. Having shared in the distribution of the court-created fund in Freeman v. Allen, 131 U.S.App.D.C. 109, 402 F.2d 660 (1968), the members of the Agawam group, although newcomers in Connecticut, were undoubtedly well aware of the significance of the Cran-ston suit and the escrow fund established by the district court’s order. Beginning in early 1971, furthermore, Weatherwax sent out “information letters” to members of the Agawam group, advising them of the progress of this ease, the status of plaintiffs’ application to this court for a clarification of its power to adopt a “phase-out” method of terminating the differential, and of our April, 1971, order that the escrowing arrangement be terminated. Finally formal notice was given to members of the Agawam group, pursuant to Rule 23(e), F.R.Civ.P., of the hearing to be held by the district court on June 7, 1971, to consider approval of the proposed consent judgment, at which Agawam producers appeared and were heard.

In short, the members of the Agawam group were fairly apprised of their inclusion in the group and of the proposed compromise, and they were adequately represented in the negotiation of the compromise. They were not denied due process.

III.

We turn next to the several attacks made by appellants Bilodeau, et al., many of whom have been members of the plaintiffs’ class since the litigation’s inception, on the size of the awards which the district court approved from the fund before distributing the remainder to the “distant” farmers. These appellants say that the “nearby” farmers should not have taken anything from the fund since they had not actually relied on the differential which gained them only two cents more per hundredweight than they would have been receiving without it, and since their representatives had been responsible for inordinate delays throughout the proceedings with the design of building up the fund. They also question the amount of the attorneys’ fees awarded to Conard who, they say, actually lost the litigation, and to Weatherwax who, they allege, was not working on a contingent fee basis and had the benefit of the Zuber v. Allen decision and all the accompanying legal briefs which he could copy. Attorney Ryan and his associates also argue, that they should have been awarded fees and expenses since they had performed services “that were absolutely essential and necessary” for the protection of the “distant” farmers.

All the awards finally approved by the district court were proposed by the parties themselves, including the Secretary of Agriculture, after a series of negotiations which, according to Judge Foley, were conducted at arm’s length. Before approving these awards the district court held a hearing pursuant to formal notices that had been sent to all members of the plaintiffs’ and defendants-in-tervenors’ classes. These notices stated that :

“[A]ny member of either the plaintiffs or defendant-intervenors’ classes, or any person a real party in interest in this litigation, may appear in person or by attorney duly -qualified in accordance with the Rules of this Court, and present to this Court his or her position on or with respect to said Proposed Judgment or any part thereof, or as to any other related matter under consideration by the Court on this hearing.”

At the hearing itself no one opposed the size of the proposed award to the “nearby” farmers. Reuban Hall and Theodore Corsones, purporting to represent various members of the Agawam group, and two attorneys for the State of Vermont maintained that the Aga-wam group should not be charged with a proportionate share of this award or with any of the costs of litigation. The only other opposition to the proposed judgment came from two “distant” farmers who were present and from Sanford Rosenblum, the associate of Ryan, who argued that the proposed fees for Weatherwax and Conard were excessive in view of the amount of the entire fund, the value of their services and the delaying tactics they deliberately followed. At the close of the hearing, the district court invited all interested parties to submit briefs in support of any objections they might have.

Where, as here, a trial court has approved a settlement after allowing prospective objectors adequate notice and opportunity to develop in the record facts going to the propriety of the settlement, appellate courts have been reluctant to interfere except upon a “clear showing of abuse of discretion.” See Newman v. Stein, 464 F.2d 689 (2d Cir.), cert. denied sub nom, Benson v. Newman, 409 U.S. 1039, 93 S.Ct. 521, 34 L.Ed.2d 488 (1972); West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079 (2d Cir.), cert. denied sub nom. Cotler Drugs v. Chas. Pfizer & Co., 404 U.S. 871, 92 S.Ct. 81, 30 L.Ed.2d 115 (1971); Ace Heating and Plumbing, Inc. v. Crane Co., 453 F.2d 30, 34 (3d Cir. 1971); United Founders Life Insurance Co. v. Consumers National Life Insurance Co., 447 F.2d 647, 655 (7th Cir. 1971). We find no such abuse here, at least insofar as the district court permitted the “nearby” farmers to recover a total of $375,000 — which included $200,000 for Conard — of the $1,815,000 which was in the fund at the time of distribution. This amount — $375,000— was far less than that which was in the account at the time of the Supreme Court’s decision in Zuber v. Allen— $817,128 — or at the time of this court’s decision declaring the Connecticut differential invalid in the light of Zuber— $1,009,119. Under the circuit court’s decision in Blair v. Freeman, supra, and in Zuber v. Allen, supra, the district court might well have awarded the “nearby” farmers these greater amounts.

While we might agree with appellants that there was less reliance on the differential by the “nearby” farmers here than in Zuber since here the differential increased the price which the “nearby” farmers would realize by only two cents per hundredweight whereas in Zuber the increase to the “nearby” farmers was thirteen cents, still, as in Zuber, the “nearby” farmers “could legitimately have expected to receive, and the distant farmers to pay, the differential until it has been held invalid, after full opportunity for the presentation of views on both sides, by a court.” See Zuber v. Allen, 402 F.2d at 676. Moreover, it would have been highly inequitable to punish the “nearby” farmers alone for the length of the proceedings. Even if their representatives, the defendants-in-tervenors, had been solely responsible for the delays, which they clearly were not, the district court, which was “exposed to the litigants, and their strategies, positions and proofs,” see Ace Heating and Plumbing, Inc. v. Crane Co., 453 F.2d at 34, found that they and their counsel, Conard, had acted in good faith and not for purposes of delay.

Nor do we think that the fees approved for Conard and Weatherwax were excessive when judged in the light of their skill and experience in this type of litigation, their standing at the bar, the magnitude and complexity of the litigation, the responsibility assumed by them in the case, and the number of hours of professional time expended by them in the good faith performance of their duties. See City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974); Lindy Brothers Builders Inc. v. American Radiator and Standard Sanitary Corporation, 487 F.2d 161 (3d Cir. 1973). Both Judge Timbers and Judge Foley, who were best “situated to appraise the worth of counsel’s services in providing assistance in the salient decision making,” see Freeman v. Ryan, 408 F.2d 1204, 1206 n. 4 (D.C.Cir. 1969), had high praise for the skill and conduct of Conard and Weatherwax. Judge Timbers wrote that

“Attorney Weatherwax, at all times had conscientiously, expertly and with the highest professional sense of duty to plaintiffs endeavored to represent their interests. Attorney Weatherwax has forthrightly, earnestly, and unceasingly prosecuted this lawsuit to enjoin the application of the differentials. He has conducted his case as any gentleman and lawyer should and would and has never conceded a point nor failed to present a plausible argument.” 290 F.Supp. at 789.

Judge Foley concurred and added that the “experience of Attorney Conard is evidenced by his participation in the District of Columbia cases, similar to this case, and also by the able and scholarly presentation of viewpoints in this Cranston action.”

Moreover, prior to the July 7, 1971, hearing on the proposed judgment embodying the settlement, attorney Conard submitted an affidavit stating that he and his associates had spent 4,927 hours on this litigation, which had already been billed to the CMP A. Attorney Weatherwax submitted a similar affidavit stating that he and his associate James M. Strang had spent 3,811 hours on the litigation. These figures were not contested at the hearing and have obviously been increased by work spent since that time. While, unfortunately, the affidavits did not give a detailed breakdown of the way in which the hours had been spent and by whom in each instance, see City of Detroit v. Grinnell Corp., supra, the district court knew the history of the litigation, had observed both Conard and Weatherwax before him, and was familiar with all the pleadings, records, briefs and documents which had been filed. From all of this, the court could conclude that few of the hours listed had been spent “on comparatively routine matters or in ministerial duties.” See City of Detroit v. Grinnell Corp., supra, 495 F.2d at 473. Dividing the hourly figures contained in the affidavits — which, as we have said, represent only time spent before the July 7, 1971, hearing — into the amounts ultimately awarded — $185,000 for Con-ard (plus $15,000 for disbursements and .expenses) and $205,000 for Weatherwax (plus $25,000 for disbursements) — the resulting hourly fees, to the extent that they represent one factor to be considered in determining the fairness and adequacy of the fee allowances, are clearly within reasonable bounds.

Conard did not “lose” the litigation in all respects since he initially prevailed in the proceedings before Judge Timbers and later successfully asserted the “nearby” farmers’ claim to part of the escrow fund which had been accumulated. Either he or the persons who paid him were entitled to be paid out' of the sum awarded to “nearby” farmers for litigation expenses incurred in creating that fund. See Mills v. Electric Auto-Lite Co., supra; Sprague v. Ticonic National Bank, 307 U.S. 161, 166, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). Nor do we consider it material that Weatherwax may not have been participating under a contingent fee arrangement since this was not the basis of the district court’s award. The principal factors considered by the court, including the hours spent, the skill and experience of Weath-erwax and the type of functions he performed, which included representation at numerous hearings, an 11-day trial before Judge Timbers, numerous appeals and lengthy negotiations, amply supported the size of the award.

The district court also properly considered the size of the “distant” farmers’ recovery and the fees which had been awarded in the Blair and Zuber cases. See United States v. American Society of Composers, A & P, 466 F.2d 917, 919 (2d Cir. 1972); Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 718 (5th Cir. 1974). In Blair, attorneys of the “distant” farmers were ultimately awarded $185,000 plus “out of pocket expenses of a kind customarily reimbursed to counsel.” See Freeman v. Ryan, supra. In Zuber, attorneys for the “distant” farmers were awarded $750,000. See Allen v. Hardin, Civ.No. 3379-66 (D.D.C. Apr. 23, 1970). Appellants’ presumptuous assertion that Weatherwax had been able to copy the papers which were filed in these preceding cases overlooks the lament of the circuit court in those cases that “a significant aspect of the research required for [the court’s decisions]” had to be undertaken by the court itself. See Freeman v. Ryan, supra, 408 F.2d at 1206.

Attorney Ryan and his associates were not counsel to any of the named parties in this litigation and conferred no significant benefit on any class of private persons involved. To the extent that Ryan and his associates were responsible for the Supreme Court decision in Zuber v. Allen, which, they claim, “dictated the reversal of this case and the reversal of Judge Timbers,” they have already been adequately compensated since, as we have already noted, they were awarded $750,000 in that case. It is a novel assertion that attorneys who are victorious in one case may, like the holder of a .copyright, claim fees from all subsequent litigants who might rely on or use it in one way or another. Nor was Ryan solely responsible for the termination of the differential and es-crowing pursuant to this court’s clarification of its July 16, 1970, decision, or the abandonment of the proposed gradual elimination of the differential. An order requiring the gradual elimination of the differential was vigorously opposed by the Secretary of Agriculture on jurisdictional grounds and Ryan’s petition for clarification in this court merely preceded Weatherwax’s petition, which was submitted at the direction of the district court.

Instead of conferring substantial benefits in this case, Ryan’s efforts which the district court, echoing the circuit court in Freeman v. Ryan, described as “voluminous, repetitious, accusatory and petulant,” substantially increased expenses. Thus, for example, Conard and Weatherwax were required to spend several days responding to Ryan’s collusion charges in the district court, in this court and in the Supreme Court, although Judge Timbers found “not an iota of credible evidence” to support the charges. See 290 F.Supp. at 789. In opposing virtually every effort to move the litigation forward, Ryan freely imputed evil motive to the parties and their attorneys, including representatives of the Department of Justice, and to Judges Timbers and Foley. This conduct deserves no reward. Accordingly we affirm the district court’s refusal to award attorneys’ fees to Ryan or his associates and endorse his words.

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

      . The provision also permitted the “nearby” farmers to receive 23 cents more per hundredweiglit for tlieir milk than so called “intermediate” farmers — i.e., farmers located outside the market area but nearer than the “distant” farmers.

      . In 1967, there were approximately 2,000 “nearby” farmers as compared to approximately 250 “distant” farmers selling milk in Connecticut. Since the monthly deductions made to provide for the 46 cents differential between “distant” and “nearby” farmers had the effect of lowering the uniform pro rata pool price for all farmers in Connecticut, they included, in large part, amounts which tlie “nearby” farmers would have received even absent the differential. As a result, although the monthly deductions under the differential were approximately $400,000 to $450,000, only $20,000 to $25,000 of this amount would have gone to the “distant” farmers, absent the differential provision, For a more complete account of how the uniform price is ordinarily calculated in a milk marketing area see Zuber v. Allen, 396 U.S. 168, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969).

      . Actually Judge Foley directed that the total period of escrowing be subdivided into the period from February 1, 1967, through October 31, 1970, and the period from November 1, 1970, through March 31, 1971. Distribution to each “distant” farmer would be based on his proportionate share of the total milk marketed during the period.

      . Rather than a “flip-flop,” as vehemently charged by appellants Noble, et al., the Secretary’s positions here have been entirely consistent. Although asserting that the district court had no power to order him to terminate the differential gradually, the Secretary later agreed that the district court could at least maintain the status quo while considering the question of its power.

      . See note 2 supra. The small amount which-the “nearby” farmers were actually gaining under the differential was due to the fact that there were many more “nearby” than “distant” farmers selling milk in Connecticut.

      . Appellants’ argument that the award for Conard’s fees and disbursements should have been denied since CMPA is no longer in existence but had merged with United Milk Producers of New England and thg New England Milk Producers Association to form Yankee Milk, Inc., is frivolous. The members of the CMPA who, presumably, p.re now members of Yankee Milk, were still entitled to reimbursement for the benefits they had conferred.

      . The issue of whether or not Weatherwax was participating on a contingent fee basis was hotly disputed at the oral argument of these appeals and may turn on reasonable differences as to the interpretation of Weatherwax’s apparently informal agreement with his clients.

      . Pointing to the absence of any trial in the Zuber case where the district court proceeded on motions for summary judgment, appellants vigorously assert that the trial before Judge Timbers was unnecessary. This argument overlooks the multiple grounds on which the Connecticut differential was attacked, including the ground that the differential was presently operating as an impermissible trade barrier in violation of § 8c(5) (G) of the Act, 7 U.S.C. § 608c(5)(G). Since Judge Timbers did not agree with this contention, a trial was necessary before he could dispose of the plaintiffs’ several other claims.