author: ROBERT P. ANDERSON, Circuit Judge:

text:
    INTERSTATE COMMERCE COMMISSION, Plaintiff-Appellee, and Ethan Allen, Inc., et al., Intervenors, v. MAINE CENTRAL RAILROAD COMPANY, Defendant-Appellant.
    No. 355, Docket 74-2062.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 2, 1974.
    Decided Oct. 22, 1974.
    Peter J. Nickles, Washington, D. C. (Eugene D. Gulland, and Covington & Burling, Washington, D. C., on the brief), for defendant-appellant.
    John J. Mahoney, Jr., Interstate Commerce Commission, Washington, D. C. (Bernard A. Gould, Interstate Commerce Commission, Washington, D. C., on the brief), for plaintiff-appellee.

      G. Clark Cummings, New York City (Kelley, Drye, Warren, Clark Carr & Ellis, New York City, on the brief), for in-tervenor-appellee Ethan Allen, Inc.
    John T. Collins, Sp. Counsel for New Hampshire Public Utilities Commission, Boston, Mass.
    Richard H. Saudek, Sp. Counsel for the State of Vermont, Montpelier, Vt.
    Before HAYS, ANDERSON and MANSFIELD, Circuit Judges.
   ROBERT P. ANDERSON, Circuit Judge:

The Maine Central Railroad Company (Maine Central), the appellant, is a common carrier subject to Part I of the Interstate Commerce Act, 49 U.S.C. § 1, et seq.; and it is operating under franchises granted by several states, including Vermont and New Hampshire. Through a combination of outright ownership and trackage agreements with the Boston and Maine Railroad and the Canadian National Railway, Maine Central operates a 57.52 mile rail line from Quebec Junction in Carroll, New Hampshire, to Beecher Falls, Vermont. This line is divided into four segments, the fourth or terminal segment is a 22.96 mile dead-end stretch, known as the Beecher Falls Branch, which is owned by Maine Central and extends from North Stratford, New Hampshire to Beecher Falls. Except for approximately 1.5 miles in Vermont, all of this segment is located in New Hampshire, and the Maine Central is the only railroad which makes use of these tracks.

Prior to June 30, 1973, Maine Central’s principal customers on the terminal segment were Ethan Allen, Inc., a furniture manufacturer, and the Woodland Division of the St. Regis Paper Company, a pulpwood processor. In the early part of 1973, St. Regis notified Maine Central of its decision to terminate its operations in Beecher Falls at the end of June, 1973, which it thereafter did.

Following this announcement and a review of the current and former business and profitability of the entire 57.52 mile rail line from Quebec Junction to Beecher Falls, Maine Central’s Board of Directors voted on June 27, 1973, to take the necessary steps to secure approval from the Interstate Commerce Commission (I.C.C.) to abandon this 57.52 mile portion of the railroad. At that time it was its intention to continue the operation of the line until its petition for abandonment had been decided.

Before the Maine Central had completed its petition to the I.C.C., however, heavy rains on June 29, 30 and July 1, 1973, resulted in extensive flood damage to roadbed, culverts, bridges, tracks and other installations on the Beecher Falls Branch, which rendered this segment unsafe and inoperable. Consequently an embargo on all types of freight was formally filed on July 3, 1973 on behalf of Maine Central by the Association of American Railroads for the 22.96 mile length of the fourth or terminal segment. The embargo, amended in minor detail on July 13, 1973, was still in effect on March 20, 1974, when the I.C.C. filed its complaint in this action in the district court, in which it alleged that Maine Central had illegally abandoned the embargoed segment in violation of § 1(18) of the Interstate Commerce Act (49 U.S.C. § 1(18)).

The I.C.C. sought a mandatory injunction under § 1(20) of the Act (49 U.S.C. § 1(20)) to compel the Maine Central to repair and operate the Beecher Falls Branch of the rail line and discontinue its illegal abandonment. The Public Service Board of the State of Vermont, Ethan Allen, Inc., and the New Hampshire Public Utilities Commission were allowed to intervene.

The district court found that, since the end of June, 1973, as the result of the flood damage and Maine Central’s continued embargo, Ethan Allen, Inc., had been forced to ship by motor carrier at rates greatly in excess of those which it was required to pay in 1972 for shipments via Maine Central. The district court also found that Ethan Allen, Inc.’s Beecher Falls facility was specifically designed for product shipment by rail; a 700 foot rail siding was installed in 1964 at Ethan Allen, Inc.’s own expense as well as an indoor loading area that can accommodate nine railroad cars.

Because of its dependence on rail transportation, Ethan Allen, Inc., in the latter part of 1973 offered to pay Maine Central the sum of $30,000 (the estimate of damage contained in Maine Central’s abandonment petition) to restore rail service to the Beecher Falls Branch. At the hearing before the district court Ethan Allen, Inc. increased its offer of assistance to $52,000 which equaled Maine Central’s updated total storm and flood damage repair figure. It is not disputed that Maine Central has the resources in labor, material, equipment and financial means to repair the damage caused by the flood and to resume operations on the Beecher Falls Branch, and the district court specifically so found.

After the conclusion of the hearings in May and June of 1974, the district court denied Maine Central’s motion to dismiss the complaint, granted a mandatory injunction requiring Maine Central to restore rail service on the embargoed section to the level provided prior to the flood, and ordered Ethan Allen, Inc. to contribute the proffered $52,000 to the cost of repairing the storm and flood damage.

A motion by Maine Central for a stay of the district court’s order was, after a hearing, denied on August 8, 1974; and this court on August 16, 1974 denied Maine Central’s motion for a stay pending appeal, but, on September 10, 1974, it ordered the appeal expedited.

In this court the Maine Central makes three points which are: (1) that the district court erred in finding that Maine Central had abandoned the Beecher Falls Branch in violation of 49 U.S.C. § 1(18); (2) that the district court should have deferred to the primary jurisdiction of the I.C.C. in resolving this dispute; and (3) that, in view of the posture of the case and the existing equities, the district court committed an abuse of discretion in granting mandatory injunctive relief.

The first of these involves the question whether Maine Central’s continuation for over a year of its initially justifiable embargo of July 3, 1973, is warranted by the I.C.C.’s long failure to take action on Maine Central’s abandonment petition, particularly despite Ethan Allen, Inc.’s willingness to advance the cost of repair, or constitutes, instead, an unlawful abandonment in violation of § 1(18) of the Interstate Commerce Act.

Maine Central argues that because the original cessation of service was brought about by storm and flood damage and through no voluntary act on its part and because it has not taken any action since that time which would render it unable to restore the damaged portion of line in question, the district court could not properly infer the “intent” necessary to a finding of unlawful abandonment under § 1(18). While the term “abandonment” is not defined anywhere in the Interstate Commerce Act, and although this court in Zirn v. Hanover Bank, 215 F.2d 63, 69 (2d Cir. 1954), cited by Maine Central, stated that “abandonment” in the context of that case meant “to give up permanently,” the later case of Meyers v. Jay Street Connecting Railroad, 259 F.2d 532 (2 Cir. 1958), held that an embargo could be an expression of an intention to suspend service indefinitely, and that, for the purposes of jf(18) and ft (20) of the Interstate Commerce Act, such an indefinite suspension was not conceptually distinguishable from a permanent discontinuance of service. See 259 F.2d at 535. At the time the district court rendered its decision, the embargo had been in effect for more than a year in spite of the fact the Railroad possessed the financial and physical ability to repair the damage and resume service.

It is, of course, understandable that Maine Central would like to seize the opportunity to rid itself of the marginal operation of the Beecher Falls Branch, without being compelled to expend its funds for the repair and restoration of the embargoed line without a prior determination by the I.C.C. of its abandonment petition — a decision which may render the restoration project entirely unnecessary. Nevertheless, Maine Central cannot be permitted to take the law in its own hands and it may not utilize the extraordinary remedy of an embargo, which should be a temporary measure, see Froehling Supply Co. v. United States, 194 F.2d 637, 641 (7 Cir. 1952); New Orleans Traf. & Trans. Bureau v. Miss. Valley Barge, 280 I.C.C. 105, 117 ( ), to accomplish its purpose and at the same time deny the public the protection which §§ 1(18) and 1(20) were designed to afford. A railroad has a duty under both the Interstate Commerce Act and under its state franchises to maintain and repair its lines and provide service thereon.

There is ample evidence in the record to support the thorough and well stated findings and conclusions of the trial court which held that the perpetuation of the embargo and the lack of any action toward repair and restoration of the storm and flood damage and the restoration of freight service on the Beecher Falls Branch conclusively proved an intention on the part of the Maine Central permanently to discontinue the service, which under the circumstances constituted an unlawful abandonment of the 22.96 mile Branch.

With regard to the appellant's second point, there is no merit in its assertion that the court should have abstained from taking the case and should have recognized primary jurisdiction in the I.C.C. to proceed with an administrative hearing and determination of the issues on the ground that the I.C.C. has long been recognized as having the power to issue an order annulling an embargo. On oral argument the appellant appeared to have retreated from this position and did not press it. This is just as well, because the claim borders on the frivolous. The statute, 49 U.S.C. § 1(20), specifically authorizes the courts to enjoin unauthorized abandonments by regulated railroads “at the suit of” certain designated parties in interest. Neither the language of § 1(20), nor the inclusion of the Commission itself as one of the designated parties in interest who are empowered to commence an action, supports the need or desirability of prior resort to I.C.C. administrative proceedings. Indeed, the Supreme Court has indicated that a suit under § 1(20) is the only means that the Commission or any other party in interest has to enforce § l(18)’s requirement that there be no abandonment before the acquisition of a certificate. See Powell v. United States, 300 U.S. 276, 287, 57 S.Ct. 470, 81 L.Ed. 643 (1937). Furthermore, the doctrine of primary jurisdiction, as noted in United States v. Western Pac. R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956), “applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; . . .” This doctrine can have no application where, as here, the very institution of suit in the courts by the relevant administrative body represents an exercise of its “special competence.”

The appellant’s third point is that the district court abused its discretion in balancing the equities in favor of ordering the repairs and the restoration of service on the Beecher Falls Branch. In support of its position it argues that it was inequitable for the court to restore the operation of a portion of the line from Quebec Junction to Beecher Falls which was the subject of the Railroad’s then pending petition to the I.C.C. for abandonment, and that the public interest cannot require the Railroad to do this while it is waiting in good faith for the I.C.C.’s approval of the petition which “appears imminent.” It also asserts that the district court did not find that the indefinite suspension of the operations on the branch injured or threatened to injure the public interest.

The discussion, supra, of appellant’s first point on this appeal relates to and in large measure answers the questions it raises in its third point. There is no evidence in the record as to when in the near or distant future the I.C.C. will decide Maine Central’s abandonment petition, nor is there anything which remotely indicates whether it will be granted or denied.

The appellant for the most part ignores the evidence relating to the business and transportation experiences of Ethan Allen, Inc. during the embargo and omits from its consideration of the equities Ethan Allen, Inc.’s contribution of $52,000 for the restoration of the branch. It does not dispute the district court’s finding that Maine Central is one of the few financially solvent railroads in the Northeast. The court’s power to enjoin an unauthorized abandonment in a suit brought by the I.C.C. (§ 1(20) of the Interstate Commerce Act) remains operative whether the defendant has a petition for abandonment pending before the I.C.C. or not. The filing of or pendency of an abandonment application neither freezes nor legalizes a long drawn out embargo which has been transmuted into an unlawful abandonment.

The underlying question of the public interest in requiring the continuation of rail service, which is a marginal or deficit operation, on a particular section or branch of the railroad is an issue to be considered by the I.C.C. in connection with Maine Central’s abandonment petition. That issue, though it was before the district court to a degree, was only considered for the limited purpose of determining whether it would be equitable to require the repair of the damaged and embargoed section and the restoration of service over it. The district court’s judgment was not intended to be conclusively binding on the abandonment issue yet to be decided by the I.C.C. In the light of Ethan Allen, Inc.’s contribution of $52,000 the burden of restoration on the Maine Central cannot be said to be very heavy. There are probably only two expenses which the Railroad will incur. The first is any cost of repair in excess of the $52,000 which Maine Central estimated to be the cost of restoration as of the time of the hearings below. Such excess, due perhaps to inflation, should be attributed to Maine Central’s unjustifiable delay in making the repairs and should, in all fairness, be borne by it. The second is the cost of operating the Beecher Falls Branch until the Commission acts on appellant’s abandonment petition. This too is an appropriate cost for the Railroad to bear. But for the flood leading to the discontinuation of service, Maine Central would have carried this cost during the intervening months, and would be carrying it now.

The issuance of the injunction lay in the sound discretion of the district court. We find no abuse of that power, but conclude that the court properly balanced the equities and reached a fair and just disposition of the case.

The order of the district court is affirmed.

      . The first segment is owned by Maine Central but Boston & Maine Railroad has a purchase right on abandonment by Maine Central; the second segment is owned by the Boston and Maine and the third segment is owned by the Canadian National Railway Co. Over these two segments Maine Central has trackage rights.

      . According to Maine Central’s abandonment petition Ethan Allen, Inc. shipped 579 carloads of furniture by rail from Beecher Palls in 1971 and 707 carloads in 1972, while St. Regis shipped 402 carloads of pulpwood by rail in 1971 and 288 carloads in 1972. See “Application of Maine Central Railroad Company for Certificate Permitting Abandonment of that Portion of its Branch Line of Railroad from Quebec Junction in the Town of Carroll, New Hampshire To Beecher Falls in the Town of Canaan, Vermont,” Finance Docket No. AB-83, at 16-17.

      . The I.C.C. has not, according to its counsel, taken any official action on Maine Central’s application for abandonment, filed July 19, 1973, and therefore pending for 15 months, because it had delayed the handling of all abandonment petitions while it awaited the final adjudication of Harlem Valley Transportation Association v. Stafford, 360 F.Supp. 1057 (S.D.N.Y.1973), aff’d at 500 F.2d 328 (2 Cir. 1974), which requires an environmental impact statement under the National Environmental Policy Act, 42 U.S. C. §§ 4321-4347 to be prepared by the I.C. C. as a condition precedent to the approval of an abandonment of a railroad line.

      . 49 U.S.C. § 1(18) provides in relevant part;
      “No carrier by railroad . . . shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity permit of such abandonment.”

      . 49 U.S.C. § 1(20) provides in relevant part:
      “The Commission shall have power to issue such certificate as prayed for, or to refuse to issue it, or to issue it for a portion or portions of a line of railroad, or extension thereof, described in the application, or for tiie partial exercise only of such right or privilege, and may attach to the issuance of the certificate such terms and conditions as in its judgment the public convenience and necessity may require. From and after issuance of such certificate, and not before, the carrier by railroad may, without securing approval other than such certificate, comply with the terms and conditions contained in or attached to the issuance of such certificate and proceed with the construction, operation, or abandonment covered thereby. Any construction, operation, or abandonment contrary to the provisions of this paragraph or of paragraph (18) or (19) of this section may be enjoined by any court of competent jurisdiction at the suit of the United States, the Commission, any commission or regulating body of the State or States affected, or any party in interest; . . . . ”

      . This was not a mere repayable advancement but an absolute contribution, limited to the actual cost of necessary and proper repairs to damage caused by the June, 1973, storm and flood and excluding such costs as deferred maintenance, depreciation, etc.

      . Anyone reading the record and briefs in this case should be forewarned that, although the district court in its opinion, the I.C.C. in its complaint and the intervenors in their complaints and memoranda, refer to the Beecher Falls Branch of the Railroad as the most northerly or terminal segment, sometimes called the fourth segment, which is 22.96 miles long and runs between North Stratford, New Hampshire, and Beecher Falls, Vermont, the plaintiff-appellant refers to the Beecher Falls Branch as the whole line, 57.52 miles in length, which runs between Quebec Junction, New Hampshire to Beecher Falls, Vermont, which is the subject of Maine Central’s abandonment petition. Why this was never clarified in the course of the trial or in the briefs or arguments on appeal is a mystery. In this court’s discussion of the case the Beecher Falls Branch is recognized throughout as the northerly 22.96 miles of the line, which was the subject of the embargo.


source: Caselaw Access Project

author: AINSWORTH, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William SNYDER, Defendant-Appellant.
    Nos. 74-1316, 74-1982.
    United States Court of Appeals, Fifth Circuit.
    Dec. 16, 1974.
    Certiorari Denied March 24, 1975.
    See 95 S.Ct. 1433.

      Gary Weston, Birmingham, Ala. (Court-appointed), William Snyder, Ft. Lauderdale, Fla., Fred Blanton, Jr., Associate Counsel, Birmingham, Ala., for defendant-appellant.
    Wayman G. Sherrer, U. S. Atty., Albert C. Bowen, Jr., Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.
    Before GEWIN, AINSWORTH and GEE, Circuit Judges.
   AINSWORTH, Circuit Judge:

Appellant Snyder was convicted by a jury on January 15, 1974, on one count of violating 18 U.S.C. § 1343 by using telephone communications in interstate commerce as part of a fraudulent scheme to obtain money. Snyder was later sentenced to three years’ imprisonment. In connection with the preparation of a presentence report, Snyder submitted a false financial statement to the court. For this action, Snyder was held in contempt of court on March 28, 1974, and an additional sentence of six months was imposed. Snyder, in this appeal, contests both convictions. For the reasons discussed below, we affirm the fraud conviction and reverse the contempt citation.

I. The Facts

The scheme in which Snyder participated is more thoroughly described in the opinion released today, affirming the conviction of Snyder’s co-indictee, Lawrence C. King. See United States v. King, 5 Cir., 1974, 505 F.2d 602. Taken in the light most favorable to the Government, the evidence at trial established a scheme to defraud one Edward H. Fuller, Jr. in connection with the purported sale of an interest in Fuller’s mobile portrait studio which, at the time, was located in Orlando, Florida. After being told that King and Snyder had found a purchaser for the trailer, and upon receiving a check and an option agreement apparently signed by Robert Waldorf, Fuller wired payments of $1,000 to Snyder and $500 to King as “commissions” for the sale of the trailer. Waldorf’s check was worthless, and Snyder and King made a timely journey to Texas.

Snyder’s role in the scheme was to solicit a “buyer” for the portrait trailer. Snyder had known William Robert Waldorf for about five years, and asked Waldorf if he would sign an option agreement to “buy” an interest in a mobile portrait studio owned by Edward Fuller, as well as to sign a $4,000 check which would serve as earnest money. Waldorf testified that Snyder told him that, if Waldorf would do this, he would receive part of the money Fuller would pay King and Snyder. Waldorf had no intention of legitimately purchasing part of the business from Fuller because Waldorf had no money, and this fact was well known to Snyder. Snyder drew up the option agreement and left it with Waldorf, who had his girl friend sign his name both to the agreement and to the $4,000 cheek.

The letter containing the option agreement and check was received by Fuller on July 3, 1972, and on the same date Fuller sent the commission payments to Snyder and King via Western Union. On July 4, 1972, Snyder and King received their money orders. On July 6, 1972, Snyder called Fuller, and during the conversation it was agreed that Snyder, King and Fuller would meet in Orlando on July 10 to discuss business matters and the portrait studio. But that same day, July 6, Snyder and King left Florida and went to Texas, where they stayed together temporarily. Snyder, having so ignobly departed without paying any money to Waldorf, subsequently called Waldorf to tell him that King, and not he (Snyder), had absconded with all the money. Snyder was then informed by Waldorf that the fraud had been discovered, and that an enraged Fuller had gone to the authorities.

II. The Fraud Conviction

A. Did the trial court err in not granting Snyder’s motion for a continuance ?

Prior to trial, Snyder requested that the court grant him a continuance so that he could call as his witness Lawrence King, who could not at that time be located. The reason for this was that King, who had been indicted with Snyder, was a fugitive from justice. It is highly doubtful that King, who was taking pains to avoid invitations from the FBI to appear at the trial, would have favored Snyder with his presence. It borders on frivolity to assert error in the court’s refusal to grant a defendant’s motion for continuance so that he may call a fugitive co-indictee to appear on his behalf. The trial judge, to whom the granting or refusal of such a motion is a matter of discretion, clearly did not abuse his discretion in denying the motion.

B. Did the trial court err in refusing to grant a new trial after it referred to the indictment as a conspiracy indictment, and allowed the testimony of coconspirators to be heard, when only the substantive count of fraud was charged ?

Snyder was indicted for a violation of 18 U.S.C. § 1343; there was no charge for conspiracy in violation of 18 U.S.C. § 371. During the trial, and in the presence of the jury, the trial judge erroneously stated that “the indictment is a conspiracy indictment.” During its charge to the jury, however, the court recognized its error, and addressed the jury as follows:

Now, the indictment in this case charges the defendant with the crime of fraud by interstate communication or wire, by wire. And the defendant is not on trial in this case for the crime of conspiracy, as such. Tuesday, I think I may have given you the impression that this defendant was charged with the crime of conspiracy. It’s not — this is not technically true. The crime charged is as I have explained.

Snyder alleges that the use of the word conspiracy injected something so malodorous into the trial such as to have “poisoned” the jury’s attitude toward appellant. Conspiracy is not an invective, however, and the court did not commit reversible error by referring to Snyder as a conspirator or to the indictment as a conspiracy, even though no separate conspiracy indictment was entered. As we have said in another case which also involved a scheme in violation of 18 U.S.C. § 1343 but no conspiracy indictment, “The weakness of appellant’s argument is that it overlooks the fact that joint participants in a crime may be denominated ‘conspirators’ and the joint act or scheme may be called a ‘conspiracy’ since such words do not lose all of their ordinary content merely because Congress has separately created a crime of conspiracy.” Kumpe v. United States, 5 Cir., 1957, 250 F.2d 125, 126; see United States v. Hoffa, 6 Cir., 1965, 349 F.2d 20, 41, aff’d, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

Snyder also intimates, but does not directly contend, that there was some type of variance between the indictment and the evidence at trial resultant from proof of a conspiracy where no conspiracy indictment was entered. This is without merit, because the indictment charged precisely what was proved — a scheme involving three persons, King, Snyder and Waldorf, to defraud one Edward Fuller. Proof of joint action to defraud is tantamount to proof of a conspiracy, and appellant introduces merely a semantic quibble when he complains that although he was indicted for participation in a scheme to defraud, the evidence at trial indicated his involvement in a conspiracy to defraud.

The final allegation of error is described as follows. A person indicted with Snyder and King, William Waldorf, pled guilty to the charge and testified for the Government at Snyder’s trial. Certain testimony by Waldorf regarding the statements of both Snyder and King were objected to as being hearsay. The objections were overruled by the trial court and the testimony ruled admissible under the coeonspirator exception to the hearsay rule. The record makes obvious, as Snyder’s counsel conceded at oral argument, that the existence of the conspiracy was clearly established by independent, non-hearsay evidence. Notwithstanding this, Snyder protests the application of the coeonspirator exception absent a conspiracy indictment.

Some defendants strongly protest the Government’s use of the conspiracy statute, but Snyder seems to contend that unless a conspiracy indictment is entered, a defendant cannot fairly be convicted of a crime which, by its nature, denotes joint schemes and conspiratorial conduct. But the cases firmly establish that a conspiracy indictment is not necessary to sustain a substantive conviction. The admission of the hearsay testimony of a coconspirator does not depend on a conspiracy indictment: “The notion that the competency of the declarations of a confederate is confined to prosecutions for conspiracy has not the slightest basis . . . .” United States v. Olweiss, 2 Cir., 1943, 138 F.2d 798, 800, cert. denied, 321 U.S. 744, 64 S.Ct. 483, 88 L.Ed. 1047 (1944) (L. Hand, J.). As an opinion from the Fourth Circuit has pointedly commented:

It is true that the co-conspirators’ exception cannot be invoked without a showing that the declarant was presently engaged in promoting the joint criminal enterprise. But where, as here, such a showing has been made, the principle is not rendered inapplicable merely because the accused has not been formally indicted for conspiracy. (Citations omitted)

United States v. Sapperstein, 4 Cir., 1963, 312 F.2d 694, 698.

Thus, in a case involving a conviction for mail fraud under 18 U.S.C. § 1341, where no conspiracy indictment was charged, the court noted:

The nature of proof in a scheme to defraud, involving two or more persons, is analogous to the nature of proof in a conspiracy. The acts and declarations of each party to the scheme made in furtherance or execution thereof are admissible against all.

United States v. Grow, 4 Cir., 1968, 394 F.2d 182, 203, cert. denied, 393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 111.

In a recent case we found proper the use of the coconspirator’s exception and upheld the propriety of admitting such testimony in a case where no conspiracy indictment was present. United States v. Williamson, 5 Cir., 1973, 482 F.2d 508; see also Kumpe v. United States, supra. But cf. United States v. Burke, 5 Cir., 1974, 495 F.2d 1226, 1232 n. 6. For other cases upholding the admission of coconspiratorial hearsay in the absence of a specific conspiracy charge, see, e. g., United States v. Sanders, 8 Cir., 1972, 463 F.2d 1086; United States v. Hoffa, 6 Cir., 1965, 349 F.2d 20, 41, aff’d, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). We emphasize, however, that it is still necessary to establish, by independent, non-hearsay evidence, both a joint criminal enterprise on the part of two or more individuals as well as a party’s involvement in such conspiracy, before the coconspirator exception may be invoked. Moreover, to be admissible, such statements must be made in the course and furtherance of the conspiracy and prior to its termination. Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949). Thus we hold here that the propriety of admitting testimony regarding the statements of coconspirators is not confined to cases wherein a formal conspiracy indictment is charged. Accordingly, the trial court was correct in denying the motions for a new trial.

C. Was evidence of another crime improperly admitted against Snyder?

Prior to trial, the court instructed that no mention be made of previous criminal proceedings in Memphis, Tennessee, involving Snyder and Waldorf. But during the course of the trial, an FBI agent inadvertently stated that he had previously interviewed Snyder “at the time he was under arrest in Memphis for another matter . . . . ” Snyder’s counsel immediately moved for a mistrial. It was unfortunate that this comment was made in the presence of the jury, but we find no merit to Snyder’s contention that the court abused its discretion in denying the motion for the following reasons: (1) the comment appears to have been totally unintentional and, at worst, negligent; (2) the answer was in response to a question by defense counsel on voir dire examination of the agent; (3) the Government had proposed, prior to the questioning of the agent, that the jury be excluded, but defense counsel requested the voir dire examination so as to dispense with dismissing the jury; and (4) the court immediately instructed the jury, with the consent of defense counsel, that Snyder had been acquitted in the Memphis matter and that any arrest on an unrelated matter had no relevance to the present trial and could not be considered by the jury for any purpose.

D. Did the trial court erroneously deny Snyder’s motion for verdict of acquittal?

Snyder claims his motion for a verdict of acquittal should have been granted because the only evidence of an interstate phone call by Snyder was one made by him on July 6, 1972, which was at a time after Snyder and King had received the “commission” money from Fuller. Unfortunately, appellant seems to have mistakenly assumed that absent his own interstate communication, he could not be convicted under 18 U.S.C. § 1343. However, to be guilty of violating 18 U.S.C. § 1343, one need not be proven to have actually participated in or initiated an interstate communication.

The evidence clearly showed that Snyder associated with King in a scheme to defraud, that he acted with Waldorf to that end, that communication with Fuller regarding the fraudulent scheme was contemplated, and that a party to the scheme actually did have interstate communication with the victim. In a case involving a fraud by wire charge, the Second Circuit noted that while it was necessary to show that a defendant caused the use of the telephone, “It was not necessary, however, to establish that [appellant] directly participated in use of the wires . . .. It was sufficient if [such communications] were the foreseeable result of [appellant’s] acts.” United States v. Houlihan, 2 Cir., 332 F.2d 8, 13, cert. denied, 379 U.S. 828, 85 S.Ct. 56, 13 L.Ed.2d 37 (1964). To the same effect, see Pereira v. United States, 347 U.S. 1, 7-10, 74 S.Ct. 358, 362-363, 98 L.Ed. 435 (1954); United States v. Conte, 6 Cir., 1965, 349 F.2d 304, 306. Thus, if King’s calls to Fuller were the foreseeable result of the scheme in which Snyder participated— and they clearly were — Snyder is guilty of the substantive offense even if he made no calls himself. The trial court properly denied the motion for acquittal.

E. Miscellany

At Snyder’s trial, coconspirator/witness Waldorf stated that he had pled guilty to the offense for which Snyder was being tried. The court gave no cautionary instruction to the jury, nor was one requested. Even though Snyder does not raise a claim of plain error in this regard, and even though his counsel at oral argument stated he felt the point unimportant, we have reviewed the record for the possibility of reversible error. After a careful examination of “all the facts and circumstances of the case in their proper context,” we have concluded no reversible error is present. See United States v. King, 5 Cir., 1974, 505 F.2d 602.

III. The Contempt Citation

After Snyder was found guilty, he completed a financial report for the probation officer as part of the presentence investigation. Even though he had been defended by appointed counsel, Snyder falsely claimed assets of $68,000 and liabilities of only $6,300, apparently believing that if the court thought him to be a man of property, he would receive a lighter sentence. After Snyder was sentenced to three years’ imprisonment, he moved to be allowed to appeal in forma pauperis. Noting from the financial statement that Snyder had assets of some worth, the court denied the motion. Snyder then moved to amend his financial statement, and was obliged to admit that he knowingly falsified the statement. The court ordered Snyder to show cause why he should not be held in contempt, and he was subsequently cited for contempt and sentenced to six months’ imprisonment.

While courts cannot countenance behavior such as this, we must be equally unwilling to impose sanctions on individuals without the safeguard of public trial by jury. This court has had occasion to consider an analogous situation where prior statements were recanted. In Matusow v. United States, 5 Cir., 1956, 229 F.2d 335, after a conviction had been obtained against one Clinton Jencks, a key Government witness provided the defense with an affidavit repudiating his trial testimony. The defense moved for a new trial solely on the basis of this affidavit, and, at a hearing on the motion, Matusow reiterated in court the repudiation of his former testimony. The trial court refused to believe this recanting, and we found this belief justified. See Jencks v. United States, 5 Cir., 1955, 226 F.2d 553, rev’d, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). But the trial court later stated to Matusow, “[Y]ou have, in my opinion, deliberately, designedly and maliciously attempted to obstruct the justice of this Court . . .”, and imprisoned him for contempt. We reversed that citation, noting that “this right to punish without observance of constitutional safeguards has never been permitted to exceed the absolute necessities of the situation . . ., and the progressive tendency of Congress and the courts has been towards drawing closer the limitations upon that right [to punish for contempt].” Matusow, supra, 229 F.2d at 339.

The Supreme Court has held that, where there is no misconduct of any kind other than false swearing, use of the contempt power is improper, and that sanctions could be imposed only after bringing appropriate charges, if any, before a jury. In re Michael, 326 U.S. 224, 66 S.Ct. 78, 90 L.Ed. 30 (1945). If we were unable in Matusow to uphold the contempt sanction for false swearing, in court and under oath, directly affecting the fate of an accused, we are even more disinclined to sanction summary procedures for false swearing out of the presence of the court. In the words of the Supreme Court

The fact that in purpose and effect there was an obstruction in the administration of justice did not bring the condemned conduct within the vicinity of the court in any normal meaning of the term. It was not misbehavior in the vicinity of the court disrupting to quiet and order or actually interrupting the court in the conduct of its business. (citation' omitted) Hence, it was not embraced within § 268 of the Judicial Code. [Now, 18 U.S.C. § 401, which delimits the contempt power of federal courts.] If petitioners can be punished for their misconduct, it must be under the Criminal Code where they will be afforded the normal safeguards surrounding criminal prosecutions.

Nye v. United States, 313 U.S. 33, 52-53, 61 S.Ct. 810, 817, 85 L.Ed. 1172 (1941). Moreover, in Ex Parte Hudg-ings, 249 U.S. 378, 383, 39 S.Ct. 337, 339, 63 L.Ed. 656 (1919), the Court held that an “obstructive tendency” must be “clearly shown” to justify use of the contempt power. Inasmuch as both Snyder and his partner-in-fraud King, though tried separately, received three-year sentences, it does not clearly appear that the court was actually hindered in passing sentence.

For these reasons, the contempt citation is reversed and remanded to the lower court with directions to dismiss the citation.

Affirmed in part; reversed in part.


text:
    UNITED STATES of America, Plaintiff Appellee, v. Lawrence Charles KING, Defendant-Appellant.
    No. 74-2004.
    United States Court of Appeals, Fifth Circuit.
    Dec. 16, 1974.

      Robert F. Lewis, Birmingham, Ala. (Court-appointed), for defendant-appellant.
    Wayman G. Sherrer, U. S. Atty., Albert C. Bowen, Jr., Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.
    Before GEWIN, AINSWORTH and GEE, Circuit Judges.
   AINSWORTH, Circuit Judge:

Appellant King was tried and convicted by a jury of violating 18 U.S.C. § 1343 by using telephone communications in interstate commerce as part of a fraudulent scheme to obtain money. King was sentenced to three years’ imprisonment, and brought this appeal, alleging two errors which we discuss below. Finding no reversible error by the district court, we affirm.

I. The Scheme

Viewed in the light most favorable to the Government, the''evidence disclosed the following. In March of 1972, one Edward Fuller, Jr., purchased a mobile portrait studio from appellant. The studio was used in connection with business promotions to take portraits of persons in and around Florida shopping centers. The trailer was moved to Orlando, Florida, and King operated the studio from March of 1972 until late June of that year for Fuller, who resided in Cullman, Alabama. On June 27, 1972, King called Fuller (who was then in Atlanta, Georgia) from Florida and told Fuller that he (King) and a man named Bill Snyder had located a party interested in purchasing an interest in the trailer. Fuller told King to have the party sign an option agreement for purchase of a part interest if it was determined this person was seriously interested in the deal.

Two days later, on June 29, 1972, King again called Fuller in Atlanta. King said that he and Snyder had been successful in finding an investor interested in Fuller’s business. Fuller was told this interested party’s name was Robert Waldorf, and that Waldorf had signed an option agreement and put up $4,000 as earnest money. King informed Fuller that a copy of the option agreement, together with Waldorf’s check for $4,000, had already been mailed to Fuller’s Cullman, Alabama address. On July 1, 1972, King called Fuller a third time, asking Fuller if he had received the check and option agreement. Fuller replied that he had not yet checked his mail but would so so. Fuller subsequently received an envelope mailed from Florida containing the executed option agreement (purportedly signed by Robert Waldorf and witnessed by William Snyder) and a check for $4,000 signed by Waldorf.

On July 3, 1972, King again called Fuller in Cullman from a phone in Florida. King suggested some sort of commission for himself and Snyder was called for as a result of their arranging the deal. Fuller agreed, and on the same day wired $1,000 to Snyder and $500 to King in Fort Lauderdale, Florida, via Western Union. On July 6, Fuller received a call from Snyder, and a meeting of King, Snyder and Fuller in King’s apartment in Orlando was arranged for July 10.

When Fuller arrived at the Orlando apartment on July 10, he found no one there. Fuller was unable to locate King and Snyder, nor could he initially locate his trailer. King and Snyder had left town. Fuller then discovered that the $4,000 check from Waldorf was worthless. When Fuller contacted Waldorf, Waldorf disavowed any knowledge of the transaction, claiming he had never heard of Fuller or his trailer. Fuller then notified the authorities.

II. The Points on Appeal

King, Snyder and Waldorf were indicted together on October 3, 1973 on one count of violating 18 U.S.C. § 1343. On January 15, 1974, Waldorf pled guilty and testified as a Government witness at Snyder’s trial. Snyder was found guilty by a jury on January 21, 1974. (Snyder’s conviction for his participation in this scheme is affirmed in our opinion of this same date, United States v. Snyder, 5 Cir., 1974, 505 F.2d 595 [No. 74-1316].) King, who had been a fugitive at the time of Snyder's trial, was apprehended on February 28, 1974. King was convicted on March 28, 1974; Waldorf testified as a Government witness against King at the trial, and Snyder appeared as a witness in King’s behalf. In his appeal, King contends that his conviction should be reversed on two grounds. First, he asserts plain error was committed because the guilty plea of a co-indictee (Waldorf) to the charge for which King was on trial was admitted without a cautionary instruction to the jury that a co-indict-ee’s guilty plea must not be considered as evidence of a defendant’s guilt. Second, King complains that evidence of a prior civil judgment against him was improperly admitted by the trial court.

A. Was Plain Error Committed?

At no time during the trial or the instructions to the jury did King’s trial counsel object to Waldorf’s testimony relating to his guilty plea, nor did counsel request an instruction from the court. The failure properly to direct the trial court’s attention to this matter so that it might recognize and cure the error, if any existed, permits us to reverse the conviction only if the error was so patent as to have seriously jeopardized the substantial rights of the accused. Fed.R.Crim.P. 52(b). Moreover, we note at the outset that “[t]he power to notice a plain error ... is one that the courts exercise cautiously and only in exceptional circumstances.” 3 C. Wright, Federal Practice and Procedure § 856, at 373.

The fact of Waldorf’s guilty plea was first mentioned at the trial by the district judge. This occurred in connection with opening statements to the jury by King’s counsel that he would show that Waldorf, a chief Government witness, could not be believed because Waldorf was “a convicted felon, who has got a record, as long as a man’s arm . ” Aware of defense counsel s intentions, the prosecutor anticipated this argument by having Waldorf admit, on direct examination, all of his prior convictions, one of which was Waldorf’s conviction for the fraud transaction presently in question. Defense counsel did not object to this questioning, nor request a cautionary instruction. Waldorf’s plea was not mentioned again by the prosecutor — that is to say, the Government did not emphasize the plea, nor did the prosecution suggest that Waldorf’s plea was relevant to the issue of King’s guilt. The guilty plea was once more brought out, but by defense counsel in his cross-examination of Waldorf. Finally, the court’s instructions to the jury included the following comment on the convictions of Waldorf and Snyder:

I charge you that the evidence of prior convictions which was admitted in this case both as to Mr. Snyder and Mr. Waldorf is to be considered by you as reflecting upon their credibility as witnesses only. This does not disqualify them from testifying but it is a circumstance or circumstances which you have the right to consider in determining whether you believe them.

Appellant contends that the court’s failure to specifically admonish the jury that a co-indictee’s guilty plea may not be considered as substantive evidence of a defendant’s guilt mandates reversal, particularly because such an instruction was not given at the time the plea was first brought to the jury’s attention. King relies on United States v. Harrell, 5 Cir., 1969, 436 F.2d 606, on remand, 458 F.2d 655, cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972); United States v. Baete, 5 Cir., 1969, 414 F.2d 782, and on United States v. Davis, 5 Cir., 1973, 487 F.2d 112, cert. denied, 415 U.S. 981, 94 S.Ct. 1573, 39 L.Ed.2d 878. Harrell found plain error in a situation where a jury was allowed to hear of a witness’ guilty plea without proper limiting instructions. Davis and Baete, though not finding plain error, emphasized that cautionary instructions are essential where the jury learns of a codefendant-witness’ guilty plea. King’s argument maintains, essentially, that the absence of an immediate cautionary instruction automatically requires reversal.

We recognize that there is potential prejudice inherent in a witness’ statement that he was the defendant accomplice or co-conspirator, and that he has pled guilty to the crime for which the defendant is charged. One person’s guilty plea or conviction may not be used as substantive evidence of the guilt of another. See, e. g., United States v. Baete, supra, 414 F.2d at 783; United States v. Crosby, 2 Cir., 1961, 294 F.2d 928, 948; Babb v. United States, 5 Cir., 1955, 218 F.2d 538, 541 & n. 9; LeRoy v. Government of Canal Zone, 5 Cir., 1936, 81 F.2d 914. The introduction of a codefendant’s guilty plea is permissible, however, when its use is limited to proper evidentiary purposes- such as to impeach trial testimony or to reflect on a witness’ credibility. See United States v. Harrell, supra, 436 F.2d at 614 & n. 9. Nonetheless, this circuit has emphasized that cautionary instructions by the trial court are both essential and effective in avoiding prejudice where the fact of a coconspirator’s guilty plea is brought out at a trial before a jury. United States v. Davis, supra, 487 F.2d at 120; United States v. Harrell, supra, 436 F.2d at 617; United States v. Baete, supra, 414 F.2d at 783-784. But, as our cases make clear, the lack of an instruction does not necessarily constitute reversible error. Our focus on review is fairness, and jury instructions are but one factor to be considered in determining whether the proceedings below unfairly prejudiced the substantial rights of the accused.

We have canvassed this circuit’s cases on this issue of cautionary instructions and the guilty pleas of co-indictee-witnesses. The vagaries of these cases emphasize that “when an appellate court should take notice of an error not raised below must be made on the facts of the particular case, and there are no ‘hard and fast classifications in either the application of the principle or the use of a descriptive title.’ ” 2 C. Wright, Federal Practice and Procedure § 856, at 373, quoting Dupoint v. United States, 5 Cir., 1968, 388 F.2d 39, 45. Only Harrell has found plain error in the failure to give an unrequested instruction, and its conclusion was specifically predicated on finding that both “aggravating circumstances” and the absence of any cautionary instructions were presented. 436 F.2d at 617. Most recently, in United States v. Richardson, 5 Cir., 1974, 504 F.2d 357, we noted that while “our cases reflect a deep sensitivity to the possibilities of prejudice caused by allowing a jury in a criminal case to consider evidence of a co-defendant’s guilty plea," the absence of a cautionary instruction alone would not warrant a conclusion of plain error. Moreover, the Harrell court itself stated that “[o]ur discussion of the prejudicial effect of permitting testimony as to [a witness’] prior pleas of guilty should be clearly understood as limited to the facts before us.” 436 F.2d at 614. In United States v. Franicevich, 5 Cir., 1972, 465 F.2d 467, the court took this language at face value and limited Harrell to its facts, concluding that “on this [plain error] point each case depends on its own particular facts and circumstances.” 465 F.2d at 472 n. 4. In United States v. Johnson, 5 Cir., 1972, 455 F.2d 311, the trial judge informed the jury of a coconspirator’s guilty plea. Emphasizing the factual situation in which this occurred, the court affirmed the conviction without even citing Harrell. This circuit again refused to find reversible error in United States v. Cook, 5 Cir., 1972, 461 F.2d 906, cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 219, where the defendant’s attorney himself caused the evidence of the witness’ guilty plea to be introduced into the case during attempts to impeach the credibility of the witness. 461 F.2d at 911.

Thus, a number of our cases — in fact, all but one — have declined to find plain error when the fact of a eoconspirator’s guilty plea was made known to the jury even though no cautionary instructions were given. In assessing King’s assertion of plain error in this case, then, we must carefully examine all the facts and circumstances of the case in their proper context. The presence or absence of an instruction is an important factor, but it is also essential to consider other factors, such as whether there was a proper purpose in introducing the fact of the guilty plea, whether the plea was improperly emphasized or used as substantive evidence of guilt, whether the introduction of the plea was invited by defense counsel, whether an objection was entered or an instruction requested, whether the defendant’s failure to object to the testimony could have been the result of tactical considerations, and whether, in light of all the evidence, the failure to give an instruction was harmless beyond a reasonable doubt.

Upon reviewing the record, we are firmly convinced that it presents no reversible error. Defense counsel’s arguments to the jury and his references to Waldorf’s criminal record made it almost essential for the prosecution to bring out Waldorf’s convictions on direct examination. Once Waldorf’s background was injected into the case by defense counsel, his record could not be ignored by the Government. Nor could the Government have introduced all of Waldorf’s convictions except the one which grew out of the scheme in question. To do so would have left the prosecution open to accusations of selective disclosure or misleading the jury. In this case the defense opened the door by first inviting the Government to introduce the evidence of Waldorf’s plea, and then proceeding to bring out itself the evidence of Waldorf’s plea. In so doing, appellant waived his claim that the introduction of Waldorf’s plea was erroneous, and cannot now be heard to seek reversal for want of an unrequested instruction.

Two factors reinforce our conclusion that no reversible error is here presented. First, even if Harrell and Davis confined us (though they do not) solely to examining the adequacy of cautionary instructions, the court’s instruction was sufficient to avoid jury consideration of Waldorf’s plea as relevant to King’s guilt or innocence. Second, we do not believe the Government erred in bringing out Waldorf's plea as it did on direct examination under the facts of this case, where the testimony was restricted to informing the jury of a Government witness’ prior criminal background.

A number of cases have held that when a party calls a witness with a criminal record, that record should be elicited on direct examination. This has been held proper even when the witness’ criminal record includes a conviction for or plea of guilty to the same charge for which the defendant is on trial. United States v. Freeman, 2 Cir., 1962, 302 F.2d 347, 350, cert. denied, 375 U.S. 958, 84 S.Ct. 448, 11 L.Ed.2d 316 (1963); Loraine v. United States, 9 Cir., 1968, 396 F.2d 335, 339, cert. denied, 393 U.S. 933, 89 S.Ct. 292, 21 L.Ed.2d 270. United States v. Rothman, 2 Cir., 1972, 463 F.2d 488, holds that where the prosecutor merely introduces the prior guilty plea of the witness on direct and neither stresses that plea nor intimates to the jury that the defendant’s guilt can be inferred from the witness’ guilty plea, the court’s failure to give an unrequested cautionary instruction is not plain error. 463 F.2d at 490. We believe, as the court in Rothman indicated, that if the defense had requested a cautionary instruction, the trial court should have given it, but the failure to give such an instruction does not, of itself, constitute plain error where there is no request for an instruction. See United States v. King, 4 Cir., 1970, 420 F.2d 946, 947, cert. denied, 397 U.S. 1017, 90 S.Ct. 1253, 25 L.Ed.2d 432 (no plain error in failure to give unrequested cautionary instruction that codefendants’ pleas of guilty were not to be considered as evidence of defendant’s guilt); see also United States v. Kimbrew, 6 Cir., 1967, 380 F.2d 538, 540; Casados v. United States, 5 Cir., 1962, 300 F.2d 845, 848-849, cert. denied, 373 U.S. 938, 83 S.Ct. 1543, 10 L.Ed.2d 693 (1963). For all these reasons, we do not believe that plain error has been demonstrated, and reject King’s first argument on appeal.

B. Was evidence of prior conduct by appellant improperly admitted ?

When King took the stand on his own behalf, the Government cross-examined him regarding an incident in Ohio. The Government claimed, and King admitted, that a $7,000 civil judgment had been entered in the state courts of Ohio against King. The judgment was obtained when King sold a mobile portrait trailer for $7,000, then shuttled the trailer to Florida, neglecting to deliver the trailer to the Ohio purchaser. The trailer involved in the Ohio transaction was the same trailer King sold to Fuller, and was the same trailer in which Waldorf purportedly purchased an interest. King claims the prosecutor’s injection into the trial of this prior transaction was reversible error.

We find no merit to this contention. The Ohio transaction was not introduced merely to show the defendant’s bad character, nor was the evidence of prior fraud of a vague and uncertain character. Compare Kraft v. United States, 8 Cir., 1956, 238 F.2d 794, 801-803. The Ohio fraud was almost identical in nature, it involved the same portrait trailer which was the subject of the alleged Florida fraud, and it was recent in time. This was sufficient connection to show a general pattern of conduct, it was a transaction reasonably near in time, and the fraud reflected intent similar to that charged in the present case. The reference to King’s prior fraudulent dealings was thus proper. Gilstrap v. United States, 5 Cir., 1968, 389 F.2d 6, 9-10. It is well established that evidence of prior similar acts is admissible to prove the elements of knowledge and intent. “Evidence that similar and related offenses were committed in this period [prior to indictment] tended to show a consistent pattern of conduct highly relevant to the issue of intent.” Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S.Ct. 766, 769, 93 L.Ed. 919 (1949); see United States v. Jones, 5 Cir., 1973, 486 F.2d 1081, 1083-1085 and cases cited; United States v. Jaqua, 5 Cir., 1973, 485 F.2d 193, 195 and cases cited n. 3; Matthews v. United States, 5 Cir., 1969, 407 F.2d 1371, 1381; Gilstrap v. United States, supra; 2 Wigmore on Evidence § 302 (3d ed. 1940). Moreover, the development of such evidence is viewed more favorably when it is introduced, as it was here, on cross-examination rather than direct. See McCormick on Evidence, § 190, at 452, § 196, at 468. The admission of such evidence is highly relevant where, as here, there has been a repetition of fraudulent dealings such as to indicate a great improbability of ignorance or innocent intent.

Affirmed.

      . 18 U.S.C. § 1343 reads as follows:
      Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing sucli scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both.

      . While there is no dispute regarding Waldorf’s complicity in the scheme, he apparently did not personally sign the check and the option agreement but had a girl friend sign Ids name to the papers.

      . Snyder and King had received the Western Union money orders on July 4 and on July 6, immediately after Snyder’s call to Fuller, the two left Florida for Texas.

      . The colloquy at trial was as follows :
      Mr. Lewis [Defense Counsel] : May it please the Court, ladies and gentlemen of the jury. Ladies and gentlemen, Mr. Bowen told you that he is going to put on the stand Mr. Waldorf who is going to tell you that this was a scheme and contrivance. We expect the evidence to show that Waldorf, incidentally, who is a convicted felon, who has got a record, as long as a man’s arm—
      Mr. Bowen [Prosecutor] : Now, we object to that, may it please the Court.
      The Court: Now, I sustain that objection.
      Mr. Lewis: Ladies and gentlemen, we will — which part of that do you sustain the objection to, Your Honor?
      The Court: About his record being as long as an arm.
      Mr. Lewis: I withdraw that, Your Hon- or. I withdraw it. I used that slang term and I withdraw that.
      The Court: All right. I’ll permit you to say he has been convicted because he pled guilty in this case.
      Mr. Lewis : Thank you, Your Honor. lie has been convicted of numerous felonies.
      Mr. Bowen: We object to that, may it please the Court. That’s not true.
      Mr. Lewis : All right.
      The Court: You are talking about impeaching a witness now rather than what the evidence will show. You can say you expect to put on evidence that will attack his credibility.
      Mr. Lewis: All right. Thank you, Your Honor. Ladies and gentlemen, we expect the evidence to show that this man has been convicted of a felony and that we expect this evidence to impeach his credibility.

      . Immediately after Waldorf took the stand, the prosecutor asked the following questions:
      Q. Your name is William Robert Waldorf?
      A. Yes sir.
      Q. And are you presently incarcerated in the Federal Penitentiary in Arkansas?
      A. Texarkana, Texas.
      Q. Texarkana, Texas. And, Mr. Waldorf, you are charged in this same indictment that charges Mr. King in this offense, is that correct?
      A. Yes sir.
      Q. And you entered a guilty plea to this indictment previously, have you not?
      A. Yes sir.
      Q. You’ve also been convicted of a felony in Federal Court in Memphis, Tennessee.
      A. Yes sir.
      Q. —have you not? And also you were convicted of a felony in the State of Florida, were you not?
      A. Yes sir.

      . Defense cross-examination of Waldorf included the following:
      Q. Mr. Waldorf, what felonies have you been convicted of?
      A. Interstate transportation of stolen securities, stopping payment on a check with intent to defraud, and this charge here.
      Q. Were you convicted of this charge?
      A. I pleaded guilty to this charge.

      . Snyder testified as a defense witness, and his conviction was brought out during his testimony. See note 16, infra.

      . United States v. Richardson, 5 Cir., 1974, 504 F.2d 357; United States v. Davis, supra; United States v. Franicevich, 5 Cir., 1972, 465 F.2d 467; United States v. Cook, 5 Cir., 1972, 461 F.2d 906, cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 219; United States v. Johnson, 5 Cir., 1972, 455 F.2d 311; United States v. Womack, 5 Cir., 1972, 454 F.2d 1337; United States v. Harrell, supra; United States v. Baete, supra; Babb v. United States, 5 Cir., 1955, 218 F.2d 538; Elder v. United States, 5 Cir., 1954, 213 F.2d 876; see also United States v. Newman, 3 Cir., 1974, 490 F.2d 139, 143-144; United States v. Del Purgatorio, 2 Cir., 1969, 411 F.2d 84, 87; Freije v. United States, 1 Cir., 1967, 386 F.2d 408, 411; United States v. Kahn, 7 Cir., 1967, 381 F.2d 824, 837-838.

      . See United States v. Harrell, supra, 436 F.2d at 614 & n. 9; United States v. Cook, supra, 461 F.2d at 911 & n. 4.

      . See United States v. Harrell, supra, 436 F.2d at 614, 617; Elder v. United States, supra; LeRoy v. Government of Canal Zone, supra.

      . United States v. Cook, supra, 461 F.2d at 910-911.

      . One legitimate defense consideration might be a concern that the remedy could be more injurious than the malady — that is, that a corrective instruction might call more attention to a witness’ guilty plea than the witness’ admission. Also relevant is our language in Sykes v. United States, 5 Cir., 1966, 373 F.2d 607, cert. denied, 386 U.S. 977, 87 S.Ct. 1172, 18 L.Ed.2d 138 (1967), where the court noted that a strict plain error rule might “tempt defendants to try for two bites of the apple, saving defenses for use in getting a new trial on appeal if the first trial has yielded a guilty verdict.” Id. 373 F.2d at 613.

      . See Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

      . See note 4 supra.

      . See note 0 supra.

      . It is interesting to note that although King protests the Government’s actions in bringing out the criminal record of its witness (Waldorf) on direct examination, defense counsel himself engaged in the same practice. Upon calling William Snyder as a defense witness, counsel immediately asked: “Now, Mr. Snyder, I would like for you to tell the jury — state whether or not you were convicted of this scheme to defraud Edward Ifuller?”


author: AINSWORTH, Circuit Judge: MOORE, Circuit Judge

text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, Defendant-Appellee.
    No. 74-1185.
    United States Court of Appeals, Fifth Circuit.
    Dec. 16. 1974.
    Rehearing and Rehearing En Banc Denied Jan. 30, 1975.

      Wm. A. Carey, Gen. Counsel, Wm. L. Robinson, Associate Gen. Counsel, E. E. O. C., Washington, D. C., Roger J. Mar-tinson, Acting Reg. Atty., E. E. O. C., Leonard N. Cohen, Asst. Reg. Atty., Wm. C. McNeill, III, Trial Atty., Atlanta, Ga., Joseph T. Eddins Jr., Beatrice Rosenberg, Charles L. Resiehel, Debra A. Millenson, Washington, D. C., for plaintiff-appellant.
    Charles A. Powell, III, Birmingham, Ala., Marvin D. Jones, Louisville, Ky., for defendant-appellee.
    James P. Alexander, John J. Coleman, Jr., Evans, Dunn, Birmingham, Ala., for Guaranty Sav. & Loan Ass’n, amicus curiae.
    Before MOORE, AINSWORTH and RONEY, Circuit Judges.

       Hon. Leonard P. Moore, Senior Circuit Judge of the Second Circuit, sitting by designation.

   AINSWORTH, Circuit Judge:

The principal question in this case is whether there is a 180-day limitation on the power of the Equal Employment Opportunity Commission to bring actions under Title VII, Subchapter VI, of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1974). We hold that the statute contains no limitation, and accordingly reverse the district court.

I. Background/of the Litigation

On February 28, 1970, Ben Thomas, a black male, was discharged by defendant Louisville & Nashville Railroad Company (L & N) for falsely answering an employment application question concerning his involvement in claims or suits for damages. On April 27, 1970, Thomas filed a charge with EEOC alleging he was discharged because of his race.

On November 4, 1970, EEOC’s District Director found that the discharge was not racially motivated. On January 28, 1972, the Commission adopted the District Director’s finding that the Charging Party (Thomas) was not discharged because of race. It also found, however, that L & N had a practice of considering arrest records and using certain pre-employment tests in its hiring decisions, which provided reasonable cause to believe L & N was engaging in unlawful employment practices.

In accordance with the relevant statutory provisions, 42 U.S.C. § 2000e-5(b) (1974), L & N and EEOC began conciliation efforts, meeting initially on March 9, 1972. On May 31, 1972, the Commission notified L & N that it had sent a notice of right-to-sue to the Charging Party (Thomas) because conciliation had not led to voluntary compliance with Title VII by L & N. See 42 U.S.C. § 2000e-5(f)(1) (1974), 29 C.F.R. § 1601.25 (1972). On July 16, 1973, the Commission brought this action in the district court, which held that Section 706(f)(1) of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5 (f)(1) (1974), empowering the Commission to sue, contains a 180-day limitation on EEOC’s right of action, barring the present claim. Alternatively the court held that the Commission had failed to comply with its own regulations concerning notice of termination of conciliation efforts.

II. Whether the Statute Limits EEOC’s Right of Action

A. The Words of the Statute in the Context of Title VII

Section 706(f)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f) (1), as amended, provides in relevant part:

If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) or (d) of this section, the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge. If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved ....

This text, taken in its ordinary meaning, creates two rights. First, the Commission is empowered to bring civil actions if conciliation has failed, provided that thirty days have elapsed since the filing of the charge. Second, the Charging Party may bring his own action if the Commission has dismissed his charge or has taken no action within one hundred and eighty days. No explicit time limitation on the Commission’s right to bring civil actions is mentioned in the subsection.

Other provisions of the Act do contain explicit limitations. For example, the private right of action authorized by Section 706(f)(1) contains a definite 90-day limitation on such suits. The private suit limitation makes the absence of any specific limit for Commission actions all the more conspicuous, and the difference must be taken to be intentional. The limitations provided elsewhere in Title VII are similarly specific and direct. In Section 706(e) the statute provides “[a] charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ..” Section 706(c) states that

. no charge may be filed under subsection (b) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated

See also Section 706(g), 42 U.S.C. § 2000e-5(g) (1974), relating to back pay (“Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission.”).

The enactment containing the 1972 amendments provided that the Commission’s newly-created right of action extended to all charges then pending. Section 14, P.L. 92-261, 86 Stat. 113 (1972) (over 40,000 cases — see S.Rep. No. 92-415, 92d Cong., 1st Sess. 5, 6, 87 (1971) U.S.Code & Admin.News, 1972, p. 2137). It was apparent that the Commission would be precluded from acting on most of the crush of pre-1972 cases if a 180-day limitation applied. Even if the alleged 180-day limitation were construed tó- run from the date of the amendment applying the Commission’s new right to bring suit in pending cases (March 24, 1972), most of these cases could not have been brought in time because of the enormous backlog. See EEOC v. Christiansburg Garment Co., Inc., W.D. Va., 1974, 376 F.Supp. 1067, 1070. “There is a presumption against a construction which would render a statute ineffective or inefficient . . . .” United States v. Powers, 307 U.S. 214, 217, 59 S.Ct. 805, 807, 83 L.Ed. 1245 (1939). We are reluctant to nullify the provision extending the Commission’s right to sue in pending cases, especially when the plain language of the statute points in the other direction.

L & N argues that the statute establishes one right of action held first by the Commission for one hundred and eighty days and then by private parties for ninety days, rather than two parallel rights. In support of its position L & N points to special rules of construction for statutes creating new causes of action, to EEOC’s own regulations, and to the limitation on the Commission’s right to intervene in private actions. None of these considerations, however, contradicts the interpretation we have set forth above.

If a statute creating a new cause of action contains a time limit, that limit is a restriction on the right itself. Such restrictions usually are construed more strictly than ordinary statutes of limitation. United States ex rel. Texas Portland Cement Co. v. McCord, 233 U.S. 157, 162, 34 S.Ct. 550, 552, 58 L.Ed. 893 (1914); Simon v. United States, 5 Cir., 1957, 244 F.2d 703, 704; Northern Metal Co. v. United States, 3 Cir., 1965, 350 F.2d 833, 837.

L & N contends Section 706(f) (1) does create a new cause of action, and therefore a stricter interpretation should be placed on the statute, leading to the conclusion that the running of 180 days terminates EEOC’s cause of action. The flaw in this argument is that the strict rules invoked by L & N do not come into play until the court finds a limitation in the statuté. These rules prohibit a relaxation of an express limitation, but they “are not helpful in determining whether a limitation should be implied.” EEOC v. DuPont de Nemours, D.Del., 1974, 373 F.Supp. 1321, 1327 n. 4. Clearly Congress can create a right without fixing a time limitation, see Anderson v. United States Atomic Energy Com’n., 7 Cir., 1963, 313 F.2d 313, 316, and we believe it did so in Section 706(f)(1).

The Commission’s regulations are even less convincing as evidence of a limitation in the statute. They provided that issuance of a notice of right-to-sue to a Charging Party “suspend[s] further Commission proceedings unless the Field Director determines it is in the public interest to continue such proceedings . . . .” 29 C.F.R. 1601.-25a(d) (1972). In contrast, 29 C.F.R. 1601.25b(e) (1972) provided that notice to members of an aggrieved class of persons affected by conduct that is the basis of a Commission-initiated charge does not terminate the Commission’s jurisdiction. From this distinction L & N infers that the Commission’s own regulations acknowledge the expiration of its authority over a case upon notice of right-to-sue to a Charging Party. The fact that the Field Director has discretion to process the case beyond the 180-day period, however, belies the assertion, repeatedly advanced by L & N, that the alleged limitation on EEOC’s right of action is “jurisdictional.” Moreover, § 1601.25a(d) has now been amended to conform to § 1601.25b(e), thus eliminating the distinction on which L & N’s argument is based. See 29 C.F.R. § 1601.-25b(e) (1973).

L & N also suggests that the provision limiting EEOC’s right of intervention in private actions indicates limits on its right to sue. Section 706(f)(1) provides that “the court may, in its discretion, permit the Commission to intervene in such civil action [by a private party] upon certification that the case is of general public importance.” The existence of this right does not indicate that the Commission’s right to sue terminates at the beginning of the period during which the Charging Party may sue. The Commission’s right to bring actions after one hundred and eighty days does not render its right of intervention superfluous. Large groups of employees whom the EEOC is charged with protecting would be bound by judgments entered in class actions brought by private parties. The Commission’s right to sue could not prevent this injury, but its right to intervene does.

EEOC’s right of intervention is narrower than permissive intervention under the Federal Rules, see Fed.R.Civ. P. 24(b), but this restriction is not designed to limit the time within which the Commission may sue. Rather,

“Congress had a paramount concern that the aggrieved employee secure prompt relief and may have been sensitive to the possibility that intervention by the Commission could broaden an individual suit and thereby delay relief for the aggrieved individual. It may be for this reason that Congress decided to give the court discretion as to intervention and prohibit Commission involvement except in those cases of ‘general public importance’ ....

EEOC v. DuPont de Nemours, supra, 373 F.Supp. at 1331 n. 15.

B. The Legislative History

The plain words of the statute, especially when construed in light of the entire statutory scheme, strongly support the conclusion that there is no time limit on the Commission’s right of action. This conclusion is reinforced by the legislative history.

At one stage in the passage of the 1972 amendments to Title VII, Congress seriously considered a bill granting cease and desist powers to EEOC. That proposal contained an explicit 180-day limitation on the Commission’s enforcement powers. Senate Bill No. 2515, 92d Cong., 1st Sess. 48 (Oct. 28, 1971). The omission of the limitation from the final version weakens L & N’s contention that a 180-day time limit on EEOC’s right to sue is to be implied from the 180-day ban on private actions.

The differences between the final version of the 1972 amendments and the pre-1972 statute also negate the suggestion that a limitation should be implied. Before the 1972 amendments, EEOC had no enforcement power but the Charging Party could bring an action after thirty days of conciliation efforts by the Commission. See Section 706(e), Civil Rights Act of 1964. The 1972 amendment barring private actions for 180 days is designed to give the Commission a more realistic period to pursue conciliation. It “serves its apparent purpose when it limits the time before which a private action may not be filed and thus avoids potential interference with the Commission in the performance of its primary duties of conciliation and enforcement.” EEOC v. Cleveland Mills, 4 Cir., 502 F.2d 153 (mimeo). It has no bearing on actions brought by the Commission.

The commentary accompanying the bill at various stages in its progress through the Congress shows no conclusive indication that a limitation was intended and contains much evidence to the contrary. It is apparent that the 1972 amendments were designed to make the Commission the major enforcer of the equal employment provisions of Title VII:

[Section 706(f)(1)] allow[s] the person aggrieved to elect to pursue his or her own remedy under this title in the courts where there is agency inaction, dalliance or dismissal of the charge, or unsatisfactory resolution. It is hoped that recourse to the private lawsuit will be the exception and not the rule . However, . . . it is necessary that all avenues be left open for quick and effective relief.

118 Cong.Rec.S. 3462 (March 6, 1972).

The Fourth Circuit interpreted this passage recently in the Cleveland Mills case, 4 Cir., No. 73-2298 (1974) 502 F.2d 153:

[The commentary] indicate[s] that individual standing to sue is designed to let the individual choose between pursuing his own remedy and relying on the representation of the Commission. Clearly, that choice would be illusory if the Commission’s right of action had already been extinguished.

Cleveland Mills, supra, 502 F.2d at 157. We concur in this reading.

Other inferences from the legislative history are possible. The floor debates in Congress contain suggestions of limitation, but these passages are highly ambiguous at best. Senator Dominick, one of the leading proponents of court enforcement instead of cease and desist powers, stated during the debate on the 1972 amendments:

The amendment contains several cosmetic differences from the original amendment as well as one substantial change which reduces the time period within which the Commission may file a civil action against the respondent from 180 to 150 days from the time the Commission first issues its formal charge. 118 Cong.Rec.S. 1307 (Feb. 7, 1972).

At another point in the debate, however, the Senator notes “We can shorten the 180-day private filing restrictions as far as I am concerned, but ... I do not think the Commission should be mandated on what date an agency should bring suit when we are trying to work out matters the best we can by conciliation.” (Emphasis added). 118 Cong. Rec.S. 470 (Jan. 25,1972).

C. The Purposes of the Act and the 1972 Amendments

An implied 180-day limitation on the Commission’s right of action would also be at odds with the purposes of Title VII and the 1972 amendments. Congress recognized that full compliance with Title VII could not be achieved by the Commission working with conciliation powers alone. 1972 Code Cong. & Admin.News at 2139-2140. The 1972 amendments were intended to strengthen Title VII rights. To imply a highly restrictive limitation would be to take back with one hand what Congress tried to give with the other.

Congress clearly was aware of the enormous backlog facing the Commission, see H.R.Rep. No. 92-238, 92d Cong. 1st Sess. 3-5, 12 (1971); S.Rep. No. 92-415, 92d Cong. 1st Sess. 5-6, (1971); 1972 U.S.Code Cong. & Admin. News 2137, 2139-2143, and of the additional burdens about to be created by expansion of the Commission’s jurisdiction. See 118 Cong.Rec.S. 697 (Jan. 21, 1972). We cannot infer, without very convincing evidence, that Congress intended to curtail so severely the duration of EEOC’s authority in the face of these demands on its limited enforcement resources. “A statute susceptible of more than one meaning,” as Section 706(f)(1) arguably is, “must be read in the manner which effectuates rather than frustrates the major purpose of the legislative draftsmen.” Shultz v. Louisiana Trailer Sales, Inc., 5 Cir., 1970, 428 F.2d 61, 65. See generally Securities & Exchange Com’n. v. Joiner, 320 U.S. 344, 350, 64 S.Ct. 120, 123, 88 L.Ed. 88 (1943); Haggar Co. v. Helvering, 308 U.S. 389, 394, 60 S.Ct. 337, 339, 84 L.Ed. 340 (1940); Hattaway v. United States, 5 Cir., 1962, 304 F.2d 5, 9. This principle deserves special consideration when the statute in question is a broadly remedial one. See Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 553, 19 L.Ed.2d 564 (1967).

In addition to foreclosing effective relief for a large number of complainants, the 180-day limitation would hamper conciliation by forcing the Commission to file suit lest its right be cut off. It is doubtful that Congress would have inquired EEOC to certify that conciliation had failed before suing but would have seriously compromised the Commission’s ability to conciliate by limiting it to 180 days.

L & N does not dispute that Congress was concerned with EEOC’s backlog, but argues that the 1972 amendments were designed to “force expedition in the place of slothful neglect” by placing time limits on the Commission’s authority. Although the legislative history is dotted with references to the Commission’s backlog, see, e. g., 1972 U.S.Code Cong. & Admin. News 2147, we find no significant indication that Congress attributed the backlog to inefficiency.

III. L & N’s Other Contentions

Defendant offers three other grounds for affirming the judgment below. The trial court held in the alternative that the Commission did not give proper notice of failure to conciliate, in violation of its own regulation, 29 C.F.R. § 1601.23 (1972). L & N also contends that the Commission did not execute all the steps that are conditions precedent (charge, notice, investigation, finding of reasonable cause, attempted conciliation) to filing suit, and that the Commission did not seek conciliation in good faith. The Commission’s notice of failure to conciliate, which included a copy of the right-to-sue letter it issued to the Charging Party, was completely adequate and in conformity with its regulations. 29 C.F.R. § 1601.25 (1972). As for the conditions precedent, it is clear that the Commission executed each step before filing suit. Defendant’s objection is actually to the difference between the initial charge of racial discrimination filed by Thomas and the Commission’s findings concerning use of arrest records and pre-employment tests. We find that objection to be without merit. See Sanchez v. Standard Brands, Inc., 5 Cir., 1970, 431 F.2d 455, 466. Finally, the charge of bad faith is simply not supported by the record.

Our ruling at this phase of the case does not intimate any view on the merits. On remand the district court should consider whether there are equitable defenses available to defendants under the peculiar facts and circumstances that will be developed on the merits of the ease.

Reversed and remanded.

MOORE, Circuit Judge

(dissenting):

I dissent.

The main question in this case is whether section 706(f)(1) of Title VII of the Civil Rights Act of 1964, as amended, [42 U.S.C. § 2000e-5(f) (1)] imposes a 180-day durational limit on the right of the Equal Employment Opportunity Commission to institute judicial proceedings for the redress of allegedly unlawful employment discrimination. The issue has caused a split in judicial opinion which is perhaps sharper than usual, indicating that the often elusive Congressional intent is in this case particularly obscure. In terms of sheer numbers, the weight of judicial authority holds that section 706(f)(1) sets no time limitation on the right of the Commission to sue. Fortunately, however, it is the persuasiveness of judicial reasoning and not the force of numbers which is of prime importance in our system. And although the question is admittedly not entirely clear, I am personally convinced that those courts holding that section 706(f)(1) does indeed impose a 180-day limit have properly interpreted the statute.

As the majority acknowledges, it is possible to cite portions of the legislative history which support either position. Thus, I do not feel that this referent is particularly helpful in this instance. Rather, the language of section 706(f)(1) must be read and interpreted with a view toward the broad Congressional purposes underlying Title VII — that prompt, efficient methods be enacted and utilized to eradicate racial and sex discrimination in employment. See, e. g., EEOC v. General Dynamics Corp., No. CA 4-74-54, 382 F.Supp. 59 (N.D.Tex., 1974). In my view, affording the Commission a right to sue which is without a definite limit is anathema to that goal.

The United States Court of Appeals for the Eighth Circuit recently summarized the procedure established by the 1972 amendments to Title VII and particularly by section 706(f) (1).

1. A charge must be filed within 180 days after the occurrence of an alleged unlawful employment practice.
2. If the Commission finds reasonable cause to believe that the charge is true, and conciliation attempts prove unsuccessful, the Commission may bring suit against the respondent within 180 days of the filing of the charge. The charging party shall have the right to intervene in the Commission’s suit.
3. If the Commission fails to file an action within 180 days, it shall notify the charging party.
4. Within 90 days after receipt of notice, the charging party may bring a civil action against the respondent. Should a private action be brought, the Commission may intervene, in the discretion of the court, upon certification that the case is of general public importance.

EEOC v. Missouri Pacific R. R., 493 F.2d 71, 74 (8th Cir. 1974). On its face this is an orderly procedure which for 30 days gives the Commission an opportunity to investigate and seek conciliation, for 150 additional days affords the Commission the right to sue while at the same time seeking an accommodation with the employer, and finally, after 180 days, grants the aggrieved individual a right of action for 90 days. Yet the Commission asserts that its authority to sue continues beyond the 180-day mark when the private right of action accrues. Reading the statute otherwise would, according to the Commission, unduly hamper the performance of its task, since 180 days is insufficient time to negotiate with the alleged violator. Moreover, the necessity of filing a suit to meet the 180-day deadline would assertedly interfere with conciliation efforts.

There is no doubt that Congress was well aware of both the average time necessary to process complaints and of the backlog which was confronting the Commission at the time of the 1972 amendments. But to conclude that Congress could therefore not have intended to impose a time limit on the Commission seems to me erroneous. A stronger inference is that Congress intended to expedite the administrative process and to eliminate the interminable delays which had previously been the rule. The entire thrust of section 706(f)(1) is toward increased efficiency. Starting with the filing of the charge, Congress set up a timetable — 30 days for pure conciliation, 180 days for further negotiations before a right to sue letter issues to the private individual, 90 days in which the aggrieved party can bring suit. Congress clearly contemplated that the conciliation process would begin almost immediately and that serious efforts would be made before the individual was given the right to sue privately. To hold that the Commission has an open-ended period in which it may bring an action seems calculated to encourage delays and to undermine conciliation efforts. It is well-known that an imminent deadline, and in particular the pen-dency of a lawsuit, is apt to make even the most hard-line bargainers soften their position. Thus, a 180-day limit on the Commission’s right to sue seems likely to promote settlements. And merely because the 180th day comes and a suit is filed does not mean that talks must terminate. Nothing prohibits the settlement of a pending lawsuit, and in fact section 706(f)(1) explicitly refers to the possibility of settlement by giving the district court discretion to stay proceedings for 60 days while the Commission makes further efforts to achieve voluntary compliance.

Further supporting a reading of the statute which imposes a 180-day limit on the Commission is avoidance of duplica-tive lawsuits. If the Commission’s right to bring judicial proceedings is not cut off when the right of the individual starts, there is a significant chance that two lawsuits will be pending which deal with substantially identical issues. Various courts have dealt with this problem and solutions other than reading the statute as imposing 180-day limit are available. It would be possible to hold, for example, that the Commission’s right to sue terminates only when an individual actually starts proceedings. The Commission itself has suggested that it may not bring an action during the 90-day period in which the aggrieved individual has the right to sue, but that its right revives upon the expiration of the 90-day period if the individual has taken no action. Either of these alternatives tortures the language of the statute when a simple, straightforward reading obviates the necessity of making such semantic contortions.

I do not dispute that the 1972 amendments made the Commission the prime enforcer of Title VII rights, but a 180-day limit seems in no way inconsistent with that goal. The Commission is given first crack at enforcement for a period of six months. And even when the right of action accrues to the individual, the Commission retains a limited right of intervention when a ease is of public importance. This role is undeniably substantial, and I am not convinced that Congress intended to enlarge it by granting an unlimited right to sue, for this right will, I believe, tend to undercut the effectiveness of the Commission as the first line of enforcement.

Accordingly, I would affirm the dismissal of the suit.

      . A substantial majority of the courts that have considered the limitations issue have concluded that the statute contains no time limit. EEOC v. Cleveland Mills, 4 Cir., 1974, 502 F.2d 153; EEOC v. Western Electric Co., D.Md., 1974, 382 F.Supp. 787; EEOC v. Rollins, Inc., N.D.Ga., 1974 [Civ. No. 74-123, June 7, 1974]; EEOC v. Christiansburg Garment Co., W.D.Va., 1974, 376 F.Supp. 1067; EEOC v. E. I. DuPont de Nemours & Co., D.Del., 1974, 373 F.Supp. 1321; EEOC v. Huttig Sash and Door Co., S.D.Ala., 1974, 371 F.Supp. 848; EEOC v. U. S. Industries, W.D.Tenn., 1974 [Civ. No. 73-283, January 2, 1974]; EEOC v. Eagle Iron Works, S.D.Iowa, 1973, 367 F.Supp. 817; EEOC v. Duff Bros., Inc., E.D.Tenn., 1973, 364 F.Supp. 405; EEOC v. Mobil Oil Corp., W.D.Mo., 1973, 362 F.Supp. 786; EEOC v. Bartenders Int’l Union, etc., Local No. 41, N.D.Cal., 1973, 369 F.Supp. 827; EEOC v. Hickey-Mitchell Co., E.D.Mo., 1973, 372 F.Supp. 1117. See contra, EEOC v. General Dynamics Corp., N.D.Tex., 1974, 382 F.Supp. 59; EEOC v. Kimberly-Clark Corp., W.D.Tenn., 1974, 380 F.Supp. 1106; EEOC v. Birmingham Stove & Range Co., N.D.Ala., 1974 [Civ. No. 73-M-201, February 27, 1974]; EEOC v. Griffin Wheel Co., N.D. Ala., 1974 [Civ. No. 73-H-429-S, February 5, 1974] ; EEOC v. Union Oil of Cal., N.D. Ala., 1974, 369 F.Supp. 579.

      . Senator Javits, a leading proponent of the cease and desist format, also indicated that he believed the final version was to contain a limitation:
      Let us understand that we are dealing with a round period of approximately 150 days, that that is the allowable time for the Commission to move into a given situation.
      118 Cong.Rec.S. 1800 (Feb. 15, 1972). A few days earlier, however, Senator Javits stated “I feel the Commission should not, in view of its purpose, be under the kind of strict timetable . . . that the amendment sets out that it would otherwise be if we left the word ‘shall’ which is mandatory.” (Referring to the passage “the Commission may bring a civil action” in Section 706(f)(1)). 118 Cong.Rec.S. 470 (Jan. 25, 1972).

      . We note that the 180-day limitation pressed by L & N would be far shorter than the limitations provided in many remedial statutes, ¿fee, e. g., the Clayton Act, 15 U. S.C. §§ 12-27 (4-year period).

      . L & X points to the provision for a sixty-day stay by the District Court after EEOC has filed, and contends that this feature of the enforcement scheme would permit conciliation to continue. In many cases, however, even two additional months of conciliation would be insufficient. L & N notes that the National Labor Relations Board needs, on the average, 7.5 months to process a charge. This comparison is not helpful, however, since EEOC is a new agency with considerable backlog and problems that substantially differ from those of the NLRB. Moreover, to imply a 180-day limitation at the very least would make it necessary for the Commission’s negotiators to acquaint a new set of personnel — those managing the litigation —with the details of the case. This transition would delay and upset the conciliation process even further,

      . Of. House Labor Committee Report, June 2, 1971, in “The Equal Employment Opportunity Act of 1972,” Bureau of National Affairs, Wash., D.C. (1973), at 248.

      . See oases cited in footnote 1 of the majority opinion.

      . See EEOC v. Union Oil Co. of California, 369 F.Supp. 579, 580-584 (N.D.Ala.1974), where the court summarized the arguments, pro and con, regarding the 180-day limit and cited pertinent portions of the legislative history.

      . See House Report No. 92-238, 92cl Cong. 1st Sess. 3-5, 12 (1971), Senate Report No. 92-415, 92d Cong. 1st Sess. 5-6, 87 (1971) ; 1972 U.S.Code Cong. & Admin.News 2137, 2139-2143.

      . Apparently no court has yet dealt with the problem of whether suits based on charges already pending before the Commission for over 180 days at the time of the 1972 amendments are foreclosed. This case does not present the issue, since the charge here was filed after the amendments. In view of the fact that the amendments were made applicable to already pending cases, however, it would not be an unreasonable position that in these cases the 180-day period began running from the date of the amendments and not the date of filing of the charges.

      . It is clear that when Congress was considering the alternative course of giving the EEOC power to issue cease and desist orders, avoidance of duplicative proceedings was of major concern. E. g., House Report No. 92-238, 92d Cong. 1st Sess. (1971), U. S.Code Cong. & Admin.News 1972, p. 2137. Although the same concern does not appear expressly after the cease and desist proposal was dropped in favor of allowing the Commission to seek pretrial enforcement, there is no reason why the problem of duplicative proceedings is just as significant when they are botii judicial in nature.

      . See EEOC v. Missouri Pac. R. R., 493 F.2d 71 (8th Cir. 1974); EEOC v. Huttig Sash & Door Co., 371 F.Supp. 848 (S.D.Ala.1974); EEOC v. Cronin, 370 F.Supp. 579 (E.D.Mo.1973); EEOC v. Union Oil Co. of California, 369 F.Supp. 579 (N.D.Ala. 1974).

      . EEOC v. Cleveland Mills Co., 364 F.Supp. 1235, 1238 (W.D.N.C.1973), rev’d., No. 73-2298, 502 F.2d 153 (4th Cir. 1974).