source: Caselaw Access Project

author: STEVENS, Circuit Judge. PELL, Circuit Judge

license: Public Domain

text:
    Bernice F. STARK, Plaintiff-Appellant, v. Caspar W. WEINBERGER (Successor to Elliot Richardson), DefendantAppellee.
    No. 73-1993.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 15, 1974.
    Decided May 31, 1974.

      Richard M. Kates, Chicago, 111., for plaintiff-appellant.
    Kathryn H. Baldwin and Stanton R. Koppel, Attys., Civil Div., Appellate Section, Dept, of Justice, Washington, D. C., James R. Thompson, U. S. Atty., Chicago, 111., for defendant-appellee.
    Before PELL, STEVENS and SPRECHER, Circuit Judges.
   STEVENS, Circuit Judge.

Plaintiff has been afflicted with scleroderma, a progressive, incurable disease, since the late 1930’s. She claims the right to receive disability benefits since 1971, the year in which she first applied for relief under the Social Security Act. It is perfectly clear that she was then — and indeed for many years had been — disabled within the meaning of the Act. However, because of the special earnings requirement of the statute, the Secretary determined that she must establish a period of disability commencing no later than December 31, 1950. Plaintiff’s failure to apply more promptly (which is attributed to lack of knowledge of her rights) thus not only limited the amount of her claim but also created unusually difficult problems of proof. The administrative law judge found in her favor, but the Appeals Council reversed. Our review of the entire record convinces us that the original determination of disability should be reinstated.

The Secretary has advanced two primary bases to support the decision of the Appeals Council. First is that plaintiff failed to satisfy her burden of proving a disability. Second is that the decision rests upon certain items of evidence which we should accept as substantial. Before evaluating the bases for the Secretary’s action, we shall briefly describe the uncontradicted evidence supporting plaintiff’s claim. This evidence includes plaintiff’s testimony, which the administrative law judge credited; medical records; affidavits of plaintiff, some of her former co-workers and a doctor; a letter from her treating physician; and medical treatises describing scleroderma and Raynaud’s phenomenon.

I.

Except for the dispute over the date when plaintiff’s affliction became disabling, the facts are essentially uncontroverted.

Plaintiff was born in 1914. She now resides in Cicero, Illinois, with her husband, whom she married in 1935. Plaintiff did not complete her first year of high school and, except for an unfinished typing course, had no vocational training. She has had three jobs: as an assembly line riveter for Chicago Flexible Shaft Co. from 1937 to 1946; as a material cutter for Sears Roebuck in 1952 and 1953; and on an assembly line for Western Electric from 1955 to 1958.

Shortly after starting at Chicago Flexible Shaft, plaintiff’s fingers began to trouble her. They became ulcerous, increasingly stiff and difficult to manipulate, especially in cold weather. She sought medical advice, but the doctors were unable to diagnose her affliction. Plaintiff’s fellow employees assisted her at work, but ultimately the company informed her that she would have to leave because she was physically unable to do her job.

While unemployed between 1946 and 1952, plaintiff did some light housework. But her fingers were irritated by tasks such as dishwashing, and occasionally her condition would “flare up.” When plaintiff started to work at Sears, she believed her condition had improved; however, she could work neither continuously nor effectively. She had difficulty grasping scissors and “worked at a much slower pace than the other girls.” Her illness caused her to leave Sears in 1953.

Plaintiff’s doctors continued to treat her, but still were unable to determine the cause of her difficulties. Her discomfort increased. When she was upset or exposed to the cold, her feet and hands became numb and pallid. She also developed painful swelling of her fingertips and tightness of the skin on her upper arms and chest. Nevertheless, in 1955 she went to work for Western Electric. Plaintiff’s first assignment was on the assembly line tightening screws. However, she was unable to use a screwdriver effectively and was soon transferred. Her next assignment required that she dip her hands, covered by cellophane, into an acetone solution. As a result, plaintiff’s fingers were greatly irritated and her condition deteriorated. In March of 1957 she entered the University of Illinois Research and Educational Hospital, where her condition was diagnosed as Raynaud’s phenomenon.

Plaintiff remained in the employ of Western Electric until January 10, 1958. She was finally discharged because she could not perform the required work satisfactorily. While at Western Electric she had a high absence rate, was in great pain when she worked and received a good deal of assistance from her co-workers. The administrative law judge concluded that “her attempts to work resulted from severe economic need.”

In 1960 plaintiff reentered the Research and Educational Hospital. Her condition was diagnosed as scleroderma accompanied by Raynaud’s phenomenon. Between 1960 and 1971 plaintiff was admitted to the hospital on five separate occasions. She complained of progressive hardening and tenseness of the skin on various parts of her body, difficulty in swallowing, increasing inability to move her fingers and wrist, ankle edema, weight loss, and an asymptomatic mass in her left breast. On some occasions plaintiff would state that certain of these symptoms gave her less trouble than in the past. Nevertheless, her general condition became progressively worse.

In 1971 plaintiff was examined and found to be asthenic, diaphoretic and cyanotic. One plus pitting edema was noted in the extremeties, and her hands evidenced demonstrable tapering and mild atrophy. Tests further revealed an infarction and occlusion of arteries. The final diagnosis was arteriosclerotic heart disease, scleroderma in remission and recurrent thromboembolism. Since scleroderma is progressive, fatal and without cure, it is doubtful that plaintiff’s condition will ever improve. She has undergone some surgery and, for the most part, is now confined to bed.

II.

The Secretary’s initial contention is that plaintiff failed to prove, as required by 42 U.S.C. § 423(d)(1)(A), that she: (A) suffered from a medically determinable physical impairment; and (B) by reason of this impairment was unable to engage in any substantial gainful activity. According to the Secretary, we therefore must affirm the decision of the Appeals Council. See Kirkland v. Weinberger, 480 F.2d 46, 49 (5th Cir. 1973).

A.

42 U.S.C. § 423(d)(3) provides that a “physical or mental impairment” is

an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

The purpose of this section is to make clear that statements by a claimant or mere conclusions of others as to the nature and extent of an impairment are insufficient. There must be acceptable medical evidence that such an impairment existed. S.Rep.No. 744, 90th Cong., 1st Sess. (1967), reprinted in 1967 U.S.Code Cong. & Admin.News. pp. 2834, 2882-2883; 20 C.F.R. §§ 404.1501(c) & 404.1523 (1973). The Secretary argues that there is no medical evidence establishing plaintiff’s suffering from scleroderma prior to 1951; therefore, plaintiff failed to prove a “physical impairment.”

Plaintiff was unable to produce the medical records of the three doctors who treated her during the late 1940’s and early 1950’s. She explained that her records had been destroyed in a flood, that two of the doctors had long since been deceased and that the third doctor could not be located. The administrative law judge himself made an unsuccessful effort to find the records of these doctors. Plaintiff, however, did submit the medical reports of the University of Illinois doctors who treated her after 1957. A 1957 report contains a diagnosis of Raynaud’s phenomenon; a 1960 report, scleroderma. She also submitted an affidavit of Dr. Adolph Rostenberg, Jr., who followed plaintiff’s condition “for many years.” Based upon his contact with plaintiff and the affidavits prepared by plaintiff's coworkers at Flexible Shaft, Dr. Rostenberg concluded: “[I]t appears to me that Mrs. Stark’s scleroderma was present in and from the late 1930’s.”

The Secretary offered no medical opinion contradicting Dr. Rostenberg’s. Compare Williams v. Finch, 440 F.2d 613, 615-616 (5th Cir. 1971). Furthermore, the medical authorities cited by plaintiff and the administrative law judge are consistent with this opinion. They establish that the onset of scleroderma is insidious and its progression slow; while its cutaneous manifestations may, on occasion, regress, the disease nevertheless follows its fatal course. Raynaud’s phenomenon, pain, ulcerations and increasing tightness of the skin are all associated with the disease in its initial, as well as subsequent, stages. Finally, the University of Illinois reports contained in the record are also consistent with this opinion.

A medical opinion does not become unacceptable, for purposes of § 423(d)(3), simply because it is based upon a claimant’s symptomology, Bittel v. Richardson, 441 F.2d 1193 (3d Cir. 1971), or upon medical records and lay testimony. See Kyle v. Cohen, 449 F.2d 489 (4th Cir. 1971). It is also clear that a diagnosis of a claimant’s condition may properly be made even several years after the actual onset of the impairment. Berven v. Gardner, 414 F.2d 857, 861 (8th Cir. 1969); Murphy v. Gardner, 379 F.2d 1, 7 (8th Cir. 1967). We thus conclude that Dr. Rostenberg’s affidavit is predicated upon a “medically acceptable clinical diagnostic technique” and that, when considered in light of the entire record, it establishes the existence of a “physical impairment” prior to 1951.

B.

A claimant is “unable to engage in substantial gainful activity” only if he satisfies the requirement of 42 U.S.C. § 423(d)(2)(A). To meet his burden under this section, a claimant must demonstrate that his impairment is so severe that he is no longer able to perform the kind of work in which he has been engaged. If that showing is made, the burden shifts to the Secretary to prove that there is available some other kind of “substantial gainful employment” which claimant is able to perform.

Prior to 1951, plaintiff’s only job had involved working with her hands on an assembly line operation. If she established that her impairment was sufficiently severe to prevent her from continuing to work in that capacity on December 31, 1950, she met her burden and it was incumbent upon the Secretary to prove the availability of alternate employment. Since the record in this case is devoid of any such proof by the Secretary, he is necessarily contending that plaintiff's impairment was not sufficiently severe prior to December 31, 1950, to prevent her from working with her hands.

The uneontroverted medical, as well as lay, evidence before us clearly refutes such a contention. There is no cure for scleroderma. One medical authority, who was cited by the administrative law judge, concluded:

Patients with slowly progressive systemic sclerosis can lead productive and useful lives. The most important goal in therapy is to preserve function in and prevent injury to the hands. Vocational and/or climatic change may be indicated. Hand care must be stressed, including instructions for active and passive exercises to prevent flexion contracture. Early signs of local infection in fingertips must be treated immediately before they progress to large ulcerations.

C. Loeb, Textbook of Medicine 813 (13th ed. 1971). Under this medical evidence it is clear that, for a person who works only with his hands, scleroderma should be considered disabling before the disease reaches its most advanced and crippling stages.

In 1950 plaintiff had already been afflicted with this progressive, insidious disease for over 10 years. At that time, according to the medical evidence in the record, the proper treatment of the disease required her to stop working with her hands in such a way as would irritate them. Unfortunately, her affliction was not properly diagnosed until 1960; she did not thereafter return to work. We have no doubt that a correct diagnosis in 1951 would have revealed the need to avoid work of the kind she had been performing. Since the record demonstrates beyond challenge that her activities as an assembly line worker resulted in severe irritation of her fingers, and since the “most important goal in therapy” of scleroderma is to “prevent injury to the hands,” we conclude that on December 31, 1950, the disease made her “unable to do [her] previous work” within the meaning of § 423(d)(2)(A).

Under a purely literal reading of the statute, plaintiff was “able” to do work which could only aggravate a malignant, progressive illness. We do not believe, however, that Congress enacted a rule of law which imposes any such duty upon its intended beneficiaries.

III.

The Secretary’s second contention is based upon three items of evidence adverse to plaintiff’s claim: (1) certain medical records placed the onset of her illness in about 1954; (2) on her application for benefits she stated that she first became unable to work in 1958; and (3) she was employed after 1950. The Secretary argues that this evidence is substantial support for the determination of the Appeals Council; therefore, under our narrow scope of review, we must affirm. It is, however, our duty to appraise this evidence in light of the entire record and not merely to view it “in isolation.” When viewed in this manner the facts upon which the Appeals Council relied are not substantial.

A fair reading of the medical records of the University of Illinois Research and Educational Hospital belies the suggestion that the onset of scleroderma did not occur until 1954. Some of plaintiff’s complications were not noticed until 1954, but others, such as the ulcerations, which were a primary cause of her disability, clearly were. We have no doubt, as found by Dr. Rostenberg and the administrative law judge, that her scleroderma was present while she was employed at Chicago Flexible prior to 1946.

Nor do we regard the admission in plaintiff’s application as controlling. In her answer to the question when she became unable to work because of her disability, she stated: “Dec. not the first 1958.” This answer is ambiguous because it is not clear whether she meant that December, 1958, was “not the first” time she became unable to work, or that she could not remember the specific date when she left Western Electric, but it was “not the first of December.” We think the latter interpretation is the more reasonable, but nevertheless do not consider this admission critical. When plaintiff completed the application she knew she had worked at Western Electric in 1958 and, since she was not represented by counsel, was unaware of the earnings requirement that made it necessary for her to establish an earlier disability date. She simply stated the fact that she was not totally unable to work until 1958. That statement added nothing of legal significance to the evidence that she had in fact been employed both at Sears and at Western Electric after December 31, 1950. See Cook v. Ribicoff, 202 F.Supp. 558, 559 (S.D.Tex.1962). The difficult issue in this case, which the admission in her application merely highlights, is whether that post-1950 employment constitutes substantial evidence of non-disability as of December 31, 1950.

Unquestionably the regulations provide a basis for concluding that plaintiff’s employment during the period in which she claims to have been disabled is disqualifying. But it is clear that each case must be decided on its own facts, and post-disability employment is not necessarily disqualifying in every case. The question is not simply answered by the fact of employment or the extent of her earnings. Rather, the answer turns on whether she was disabled within the meaning of the Act notwithstanding the fact that she actually did work.

The uncontroverted evidence demonstrates that plaintiff worked only because she desperately needed the money; was transferred from one department to another because of her condition; needed the assistance of her co-workers to perform; had a high absence rate; worked in great pain; received the criticism of her foreman, and was finally fired, because she could not satisfactorily perform her job without assistance. Of greatest significance is the medical evidence which indicates that, if her condition had been properly diagnosed, she almost certainly would have been advised to discontinue work which could only aggravate a progressive incurable disease. Although neither she nor her doctors was fully aware of the extent of her disability while she was struggling to maintain her earnings because of her “severe economic need,” we think it is now apparent that, at all times after 1950, her affliction was sufficiently serious to be disabling within the meaning of the Act.

IV.

We recognize the force of the argument that, even though we differ with the Secretary’s appraisal of the evidence, we may not substitute our judgment for his as long as the evidence supporting the denial is substantial and that, in this case, it is not unreasonable to characterize plaintiff’s post-1950 employment as substantial. Normally proper procedure might dictate a remand to receive expert testimony directed specifically at the question whether, having the benefit of later known symptoms, medical opinion would regard plaintiff as having been physically unfit to perform the work which she actually did perform after 1950. For three reasons, however, we decline to pursue that route.

First, as already stated, the uncontradieted evidence now in the record provides an affirmative answer to that question; we may not qualify that answer by discounting the testimony of a witness whom the administrative law judge saw, heard and credited. Second, since the claim only involves the period since 1971, and since the cost to both parties of further evidentiary hearings, with the possibility of still another appeal, is so disproportionate to the amount at stake, there is good reason to bring the proceedings to an end as expeditiously as possible. And finally, in view of the impossibility of determining with complete accuracy the extent of plaintiff’s affliction over two decades ago, the settled policy of construing the statute favorably to the claimant leads us to the result that seems manifestly just under all the circumstances.

We therefore reverse the decision below with instructions to enter -judgment for the plaintiff.

Reversed.

PELL, Circuit Judge

(dissenting).

There can be no disagreement that the sad plight of the claimant in the present appeal is capable of arousing a high degree of sympathy. However, because I am unable to agree that the majority opinion correctly reflects the applicable law, I feel compelled to record this dissent.

The district court concluded as a matter of law that the plaintiff had the burden of showing that she was under disability on or before December 31, 1950. This was the crucial date and there appears to be no disagreement that the burden of proof was on the claimant.

The district court further concluded as a matter of law that there was substantial evidence in the administrative record to support the finding of the Appeals Council.

Here I would expect to find that I was verging from the result reached by the majority opinion. However, that opinion recognizes explicitly that “we may not substitute our judgment for [the Secretary’s] as long as the evidence supporting the denial is substantial and that, in this case, it is not unreasonable to characterize plaintiff’s post-1950 employment as substantial.” Nevertheless, the judgment of the district court is reversed with a direction to enter judgment for the plaintiff.

The result appears to have been reached on the basis of medical opinion in the administrative record as well as certain equitable considerations which I do not find to have been encompassed in the statutory scheme. As to the medical opinion, aside from the question that the majority opinion appears to be weighing this evidence and finding it more persuasive than the admittedly substantial evidence on which the Secretary relied, I do not find support in the record for the crucially determinative question.

Dr. Rostenberg concluded that the scleroderma was present in and from the late 1930’s. This, however, is not the crucial question. The fact that a person was suffering from a diagnosed disease or ailment at a particular time is not sufficient in the absence of proof of its disabling severity to warrant the award of benefits. Henry v. Gardner, 381 F.2d 191, 195 (6th Cir. 1967), cert. denied, 389 U.S. 993, 88 S.Ct. 492, 19 L.Ed.2d 487. I find no medical opinion that the disease was of sufficient severity as to have rendered the claimant disabled on or before December 31, 1950.

The “substantial evidence” of employment adverted to in the majority opinion appears to me to be dispositive of the issue on this appeal. Just looking at the Western Electric employment alone, I note the following earnings: 1955, $2,556.26; 1956, $4,200.00; 1957, $4,114.93; and 1958, $484.85. The wages received during this period from March 8, 1955 to January 10, 1958 were the highest she had ever earned. I am unable to equate this earnings record and what it represents in terms of gainful employment on an assembly line with an “inability to engage in any substantial gainful activity by reason of any medically determinable physical . . . impairment,” which is the definition of disability. 42 U.S.C. § 423(d).

The plaintiff attempts to explain her ability to continue working by stating that she was helped by her co-workers. She also indicated, however, that she worked as a part of a group and the pay depended upon group production. It is conceivable that sympathetic co-workers will help an ailing comrade, but when this lasts over a three-year period with the pay of those in the group, also presumably “bread-earners,” being constantly diminished, it is understandable if the Secretary, in evaluating the evidence, viewed with some skepticism a claim that during the period in question the claimant was unable to engage in substantial gainful activity.

The claim of help by the co-workers at Western Electric was supported by the affidavit of one fellow employee of that plant who told of the difficulties experienced by the claimant during her work at the plant. The affidavit states that the claimant had a heavy rate of absence. The claimant’s own affidavit states she “was absent usually at least two half days a week.” (Emphasis added.) The co-worker’s affidavit also states, “I believe that she said that she was getting some medical help. She was weak and co-workers had to help her with her work .... Her co-workers tried to help her.”

Ordinarily great deference should be given to the credibilty determinations made by the tribunal actually hearing the case. Here the administrative law judge found in favor of the claimant. However, substantially all of the evidence was in affidavit or similar form and the interpretation and inferences to be given to it and drawn from it were before the Appeals Council. The courts should not redetermine the facts de novo. Myers v. Richardson, 471 F.2d 1265 (6th Cir. 1972). Our only inquiry is to determine whether the Secretary’s findings of fact are supported by substantial evidence. Even if the court should be of the opinion that documentary evidence can be reinterpreted by us, here the evidence fails to support a determination that the claimant met the disability requirement prior to 1951.

In sum, this court is presented with a pathetic story, one which has great appeal to compassionate understanding, and one which involves relatively insignificant sums of money in today’s inflationary context. But this court is also presented with a case which requires the application of established rules of law. While I do so less than happily, considering the circumstances of this hapless individual, I nevertheless feel compelled to come down on the side of the rule of law. At the very least, this court should do no less than remand for the receipt of expert testimony as to whether the plaintiff was disabled prior to 1951 which thus far has not been demonstrated in the record to the extent that it requires this court to reverse and direct the entry of judgment for the plaintiff.

      . Scleroderma has been defined as a
      chronic mesenchymal disease of undetermined origin, characterized by connective tissue proliferation in the dermis and in many internal organs. The onset is insidious, with stiffness of the hands, sweating of the hands and feet, and Raynaud’s phenomenon. The skin eventually becomes hard, thick and glossy, and the fingers and toes become fixed. Gradually the entire integument becomes involved, and ulcerations, pigmentation, and calcification may occur. Dysphagia, disturbed gastrointestinal motility, respiratory embarrassment, pneumonia and heart failure and renal involvement are due to connective tissue proliferation of the viscera. The condition is usually slowly progressive over many years, and death is usually due to renal or cardiac failure or to sepsis. Treatment is symptomatic and supportive.
      The Handbook of Medical Treatment 386 (12th ed. 1970).

      . 42 U.S.C. §§ 416 & 423. Plaintiff’s application was filed on July 29, 1971. Under the provisions of 20 C.F.R. § 404.307(a) (1973) she will not receive benefits for any period earlier than July 29, 1971.

      . 42 U.S.C. § 416(i) (3) (B) (i).

      . The case was before the Appeals Council twice. After it first reversed the administrative law judge, jdaintiff sought review in the district court pursuant to 42 U.S.C. § 405(g). That court remanded the case to the Secretary to consider additional evidence. After this evidence was received, the Appeals Council reaffirmed its prior decision. The district court then entered summary judgment for the Secretary. The case is before us on an appeal from that judgment.

      . Plaintiff’s highest annual earnings at Chicago Flexible were $2,664 in 1945. At Sears her total earnings were only $744.81. At Western Electric she achieved her highest gross earnings ($4,200) in 1956, but her earnings declined in 1957 and amounted to only $484.85 in 1958.

      . The affidavit of Jeanette Neu, who worked with plaintiff at Chicago Flexible, states:
      When I met her [Bernice Stark] in 1938 she stated that something was wrong with her hands and that she had that condition for two years. . . . Her difficulties with her hands progressed as the years went on. It involved her fingers which were stiff and which were hard to move and as time went on she could not hold things. In cold weather her fingers would puff up, burst and fluid would run out. This would occur in other weather but cold weather affected her the worst. During her last two or three years at Flexible her problems with her hands made it extremely difficult for her to work.
      Mrs. Neu went on to state that plaintiff’s co-workers would have to “cover for her so she could keep her job which she was trying so hard to do” and that “she could do so little of value” the company finally asked her to leave. Essentially the same facts were set forth in the affidavit of Patricia Bshara, who also worked with plaintiff between 1937 and 1946. Mrs. Bshara, however, further noted that plaintiff “would be in pain from the condition of her hands.”

      . Plaintiff testified that, but for the job market created by World War II, the company would have terminated her employment sooner. Compare Orzel v. Finch, 445 F.2d 150, 153-154 (7th Cir. 1971).

      . The details of plaintiff’s employment at Western Electric were set forth in her testimony before the administrative law judge and in an affidavit of Leona Leo, a co-worker at this company. Mrs. Leo stated :
      Finally she [plaintiff] was asked to leave, or just could not carry on. From observing her with her pain and problems I do not know how she kept on even at the pace she was limping along at. It was not her physical being that kept her working, it was “pure guts.” I believe she badly needed the money.
      Mrs. Bshara, a co-worker at Chicago Flexible, kept in contact with plaintiff through lier term at Western Electric. Mrs. Bshara corroborated the testimony of plaintiff and Mrs. Leo.

      . Raynaud’s phenomenon is a vascular disorder marked by recurrent spasm of the capillaries, especially those of the fingers and toes. Concomitant symptoms include pallor, cyanosis and redness in succession, numbness and pain. The symptoms are usually most pronounced during cold weather. In severe cases, the disease may lead to local gangrene.

      . When plaintiff had herself admitted to the University of Illinois Hospital in 1957, her condition was diagnosed as “not scleroderma.” In 1960, however, the doctors found that scleroderma was present, and in 1962 they concluded that it had been present even before the 1957 diagnosis. The manifestations of scleroderma often show signs of regression. Thus, it is possible that the 1957 and 1962 diagnoses do not conflict on the issue of whether scleroderma was present when plaintiff first entered the hospital. In any event, if there was a conflict, it was resolved in favor of the plaintiff by the administrative law judge. He determined that scleroderma was present, but that it was in remission. The Secretary did not dispute this determination.

      . Section 423(d)(2)(A) provides in part that the individual’s impairment must be
      of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

      . Hernandez v. Weinberger, 493 F.2d 1120, 1122-1123 (1st Cir. 1974); DePaepe v. Richardson, 464 F.2d 92, 100-101 (5th Cir. 1972); Meneses v. Secretary of Health, Education and Welfare, 143 U.S.App.D.C. 81, 442 F.2d 803, 806-808 (1971); Garrett v. Finch, 436 F.2d 15, 18 (6th Cir. 1970); Hicks v. Gardner, 393 F.2d 299, 301 (4th Cir. 1968).

      . The Secretary correctly contends that the mere onset of a disease does not normally establish a disability; the question is when did the disease become of disabling severity. It is clear, however, that a disease may become this severe without actually reaching its most advanced and crippling stages. E. g., Martin v. Secretary of Dept. of Health, Education and Welfare, 492 F.2d 905 (4th Cir. 1974). Such is the present case.
      Of course, even if the onset of a disease makes it impossible for a claimant to continue his former employment, he is not necessarily entitled to benefits; the Secretary need only adduce evidence of other employment possibilities. See note 12 supra and accompanying text. As we have already indicated, the Secretary adduced no such evidence in this case.

      . We must, of course, affirm the Secretary’s decision if it is supported by substantial evidence. 42 U.S.C. § 405(g) ; Bartell v. Cohen, 445 F.2d 80, 82 (7th Cir. 1971). However, this does not mean that —
      the findings of the administrative agency must be blindly accepted. On the contrary, the statutorily-granted right of review contemplates more than an uncritical rubber stamping of the administrative action.
      Byrd v. Richardson, 362 F.Supp. 957, 959 (D.S.C.1973).

      . As the Secretary correctly suggests, the fact that plaintiff satisfied her burden of proof is not dispositive of this appeal. If there is substantial evidence supporting the decision of the Appeals Council, we may not substitute our judgment for its.

      . See Universal Camera Corp. v. NLRB, 340 U.S. 474, 477-487, 71 S.Ct. 456, 95 L.Ed. 456, which pages are specifically cited with approval in Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842.

      . The Appeals Council relied upon on a 1957 report where it is stated: “About 3 years ago . . . [plaintiff] noted numbness and tingling in her feet and hands . . . . ” As indicated in note 1 supra, as well as by the medical authorities which are part of this record, the complications associated with scleroderma are several; not all of these complications necessarily appear at the same time.

      . Actually, it was the 10th of January, 1958. Since over 13 years had elapsed, plaintiff may have been thinking of December, 1957, when she completed the application.

      . 20 C.F.R. § 404.1532(a) (1973) provides in part that, if an individual works during any period in which he alleges he was under a disability, such employment may demonstrate that he was not in fact disabled. Furthermore, 20 C.F.R. § 404.1534(b) (1973) provides that an individual’s earnings from work activities averaging in excess of $140 per month shall, under certain circumstances, establish no disability. These regulations are apparently implementations of 42 U.S.C. § 423(d)(4).

      . The Secretary also relies upon our decision in Kutchman v. Cohen, 425 F.2d 20 (7th Cir. 1970). In Kutchman this court stated:
      Since disability claims invoke a fact-finding process upon the basis of the evidence presented in support of the particular claim, it is always questionable whether the invasion by a court of the bog of comparative case analysis serves any useful purpose. Extended analysis of those cases is not, therefore, undertaken.
      425 F.2d at 23.
      Notwithstanding this admonition it is perhaps appropriate to note that, in Kutchman, the claimant had worked on a substantially full-time basis with a perfect attendance record. She also performed her work in a satisfactory manner without assistance, and was actually working after the time that the Secretary had initially found her disabled.

      . Cox v. Cohen, 321 F.Supp. 534, 536-538 (N.D.Cal.1971); McGaha v. Ribicoff, 262 F.Supp. 161 (D.Del.1966); see Orzel v. Finch, 445 F.2d 150 (7th Cir. 1971).
      By its terms, § 404.1534(b) is inapplicable where the individual’s work establishes that he “does not have the ability to engage in substantial gainful activity under the criteria in §§ 404.1532 and 404.1533 and . . . [404.1534(a)].” Section 404.1532(d) provides in part:
      The adequacy of an individual’s performance of assigned work is also evidence as to whether or not he has ability to engage in substantial gainful activity. [A]n individual’s failure, because of his impairment, to perform ordinary or simple tasks satisfactorily without supervision or assistance beyond that usually given other individuals performing similar work, may constitute evidence of an inability to engage in substantial gainful activity.
      Section 404.1533 implies that a claimant may not have engaged in substantial gainful activity where he, “because of his impairment, is unable to spend as much time in work activities as is customarily spent by individuals without impairment in similar work . . . . ”
      Section 404.1534(a) provides in part: “Where an individual is forced to discontinue his work activities after a short time because his impairment precludes continuing such activities, his earnings would not demonstrate ability to engage in substantial gainful activity.”

      . See cases cited by Judge Sprecher in his dissenting opinion in Bledsoe v. Richardson, 469 F.2d 1288,1293 (7th Cir. 1972).

      . For the second and third reasons we also do not remand to determine plaintiff’s potential for other employment, see note 12 supra and accompanying text, after 1950. See also Bartell v. Cohen, 445 F.2d 80, 83-84 (7th Cir. 1971).

      . I do not disagree with the statement in the majority opinion that it is settled policy to construe the statute favorably to the claimant; however, such a policy does not to me mean that mere eligibility under the statute should be transmuted into a prevailing claim. Likewise, the fact that the claim is relatively small compared to litigation costs, being a case that private litigants would probably settle, is no basis for making bad law.

      . The plaintiff testified as to the Western Electric employment: “I have the exact dates here. I started March 8, 1955 and on January 10, 1958 they let me go.”
      While $484.85 would ordinarily be more than she would have earned in the first ten calendar days of a year, the record is silent as to matters such as severance pay and accrued vacation compensation.


author: LUCAS, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert James ANDRINO, Defendant-Appellant.
    No. 72-2141.
    United States Court of Appeals, Ninth Circuit.
    May 8, 1974.
    Rehearing Denied June 20, 1974.

      John J. Flynn (argued), Michael D. Kimerer, Flynn, Kimerer, Thinnes & Galbraith, Phoenix, Ariz., for defendant-appellant.
    Ronald A. Lebowitz (argued), William C. Smitherman, U. S. Atty., Dept, of Justice, Phoenix, Ariz., for plaintiff-appellee.
    Before BARNES and HUFSTEDLER, Circuit Judges, and LUCAS, District Judge.

       Honorable Malcolm M. Lucas, United States District Judge, Central District of California, sitting by designation.

   LUCAS, District Judge:

This appeal is from Andrino’s criminal convictions on twelve counts of violating Titles IV and VII of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 922(a)(6) and 924(a), and 18 U.S.C. App. § 1202(a)(1), respectively. Counts one through six alleged the making of false and fictitious statements in connection with the acquisition of a firearm in violation of sections 922(a)(6) and 924(a); count seven alleged the receipt by a convicted felon of firearms transported interstate in violation of section 1202(a)(1); and counts eight through twelve alleged the possession by a convicted felon of firearms transported interstate in violation of section 1202(a)(1).

Andrino was found guilty on all counts at trial by court, waiving special findings of fact. He was sentenced to serve two-year terms on each count, to be served concurrently, but to be served consecutively with the sentences imposed in two prior cases which have also been appealed.

The issues presented for review are as follows:

(1) Whether or not there is a jurisdictional basis for deciding this case. Differently stated, is the congressional grant of jurisdiction to the Federal courts, as required for successful prosecution under § 922(a)(6), a constitutional grant of jurisdiction;
(2) Whether the application of the California and Nevada expungement statutes to the respective State felony convictions operates as a bar to the application of the Federal criminal statutes in question by which Andrino was deemed to be convicted felon and under which he was convicted by the district court;
(3) Whether the Government’s prosecution of Andrino whereby his name appeared as convicted felon on a list of selected suspects maintained for law enforcement purposes, constituted arbitrary discrimination contrary to the Due Process and Equal Protection Clauses of the Fourteenth Amendment ; and,
(4) Whether the absence in the district court record of any showing of representation by counsel in the Nevada State trial, which convicted him on the charge of swindling, renders that conviction constitutionally suspect thereby precluding its usage as an element of the Federal offenses for which Andrino was convicted.

As previously indicated, counts I thru VI charge a violation of 18 U.S.C. § 922(a). 18 U.S.C. § 922(a) states:

“It shall be unlawful—
(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement . . . intended or likely to deceive such importer, manufacturer, dealer or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter. . . . ” (Chapter 44 — Firearms).

Inherent in the basic jurisdictional issue is whether an. interstate commerce nexus is required. 18 U.S.C. § 922(a) (6) contains no reference to interstate commerce.

The Supreme Court has now held that Congress intended to reach wholly intrastate transactions under 18 U.S.C. § 922(a)(6) and that Congress had the power to do so on the theory that such transactions affect interstate commerce:

“Finally, no interstate commerce nexus need be demonstrated. Congress intended, and properly so, that §§ 922(a)(6) and (d)(1), in contrast to 18 U.S.C. App. § 1202(a)(1), see United States v. Bass, supra [404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488], were to reach transactions that are wholly intrastate, as the Court of Appeals correctly reasoned: ‘on the theory that such transactions affect interstate commerce.’ 472 F.2d [592], at 593. See also United States v. Menna, 451 F.2d 982, 984 (CA9), cert. denied, 405 U.S. 963, [92 S.Ct. 1170, 31 L.Ed. 238] (1972), and United States v. O’Neill, 467 F.2d 1372, 1373-1374 (C.A.2 1972).” Huddleston v. United States (1974) 42 U.S.L.W. 4467, 4473, 415 U.S. 814, 94 S.Ct. 1262, 1273, 39 L.Ed.2d 782.

We must, therefore, consider the only other substantial question raised on this appeal — Is the defendant a convicted felon, as that term is used in 18 U.S.C. § 922(a)(6), § 924(a), or 18 U.S.C. App. § 1202(a)(1)?

Andrino’s prior State convictions were for conspiring to commit acts of prostitution in California, and for swindling in Nevada, on October 6, 1959, and on January 4, 1963, respectively. Subsequently, on three separate occasions (June 18, 1970, August 19, 1970, and August 26, 1970) Andrino purchased several firearms from various licensed gun dealers in Arizona. At the time of those purchases, he signed Firearms Transaction Records certifying that he had not been convicted of any crime punishable by a term of imprisonment exceeding one year.

Andrino argues that, as a result of the application of the California and Nevada expungement statutes, Cal.Penal Code, § 1203.4, and Nev.Rev.Stat., § 176.225 (1967), and that, as a result of his belief that he would “never have to be called an exconvict or an exfelon” again, he could not have made the requisite false and fictitious statements on the firarms’ registration forms for which he was convicted under sections 922(a)(6) and 924(a). He cited People v. Taylor, 178 Cal.App.2d 472, 3 Cal.Rptr. 186 (1960) for the proposition that a defendant could not be successfully charged with a violation of Cal.Penal Code, § 12021, prohibiting convicted felons from possessing firearms, in view of the relief available under the California expungemént statute. However, the California legislature amended section 1203.4 in 1961 to provide, in a second paragraph, that dismissal of an accusation under this section does not permit a person to “own, possess or have in his custody or control any firearm capable of being concealed upon the person or prevent his conviction under Section 12021.” Andrino’s expungement occurred after this legislative amendment. Thus, the California legislature, by specific enactment, has negated the very theory under California law by which Andrino seeks to demonstrate the absence of a requisite element for the Federal conviction in question. Conceding this implication, Andrino nevertheless asserts that the California legislature did not specifically exclude from relief under section 1203.4 the particular offense in question — -giving false or fictitious statements to a licensed firearms dealer in connection with the acquisition of small arms. This reasoning is erroneous inasmuch as the expungement statute retains a provision that persons may not own, possess or control small arms, and states that its application does not negate the applicability of the concealable firearms statute, section 12021. Cf. United States v. Hoctor, 487 F.2d 270 (9th Cir., 1973). Since-this analysis suffices to answer Andrino’s contention on this particular point, a similar analysis of the Nevada expungement statute is unnecessary, and perhaps inappropriate in any event inasmuch as the Nevada courts have not passed upon the question.

Finally, with respect to the contention that Andrino alleged a “good faith” belief in the effectiveness of the purge of the State convictions, the facts are strongly weighted against him. The record suggests ambiguity at best as to Andrino’s recollection of the California expungement hearing. Furthermore, Andrino had executed a Felon Registration Form for the Phoenix police subsequent to the three occasions which led to the indictment in this case. Issues as to the credibility of Andrino’s testimony concerning the California expungement hearing, and evidentiary conflicts as to what transpired during the signing of the registration form in Phoenix were resolved by the district court. It is not for the appellate court to reconsider them, or to substitute its inferences pertaining to witnesses’ demeanor or to their testimony. United States v. Nelson, 419 F.2d 1237, 1241 (9th Cir., 1969); but cf. United States v. Squires, 440 F.2d 859, 865 (2nd Cir., 1971).

Andrino’s third contention on appeal is that the Government’s maintenance of his name on a “watch list” of possible suspects was an arbitrary act of discrimination unsupportable under the Fourteenth Amendment. Andrino’s basic discriminatory classification argument was raised in an analogous context in United States v. Thoresen, 428 F.2d 654 (9th Cir., 1970) where appellants contested their convictions under section 2(e) of the Federal Firearms Act, ch. 850, § 2(e), 52 Stat. 1250, 1251 (1938), since repealed by the Omnibus Crime Control and Safe Streets Act of 1968. Laws regulating the purchase of firearms by persons previously convicted of felonious crimes are well within those cases establishing a rational basis for State limitation of personal rights, and such classification is particularly consistent with sound principles where, as under the Federal Firearms Act [see 26 C.F.R. § 177.31(c) (1966)] the 1968 Act provides means by which a classified person may apply for relief from the disabilities imposed thereunder [see 18 U.S.C. § 925(e)]. See United States v. Thoresen, supra, at 658-660; United States v. Synnes, 438 F.2d 764, 771-772 (8th Cir., 1971); vacated on other grounds. 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972); see also United States v. Karnes, 437 F.2d 284, 289 (9th Cir., 1971); cert. denied, 402 U.S. 1008, 91 S.Ct. 2189, 29 L.Ed.2d 430 (1971).

Andrino’s final contention on appeal is that the absence of any statement in the district court record of any representation by counsel in the Nevada State trial resulting in the' conviction for swindling renders that conviction invalid for purposes of application under section 1202(a)(1). Andrino’s position is untenable. Not only did he fail to raise an objection in the district court as to the admissibility of the Government’s record of the Nevada conviction, but Andrino introduced a certified record of the Nevada expungement proceedings, which was predicated upon the validity of the Government’s exhibit, tending to authenticate the original swindling conviction. The stipulation as to the authenticity and the sufficiency of the Government’s document alone is fatal to consideration of this issue for the first time on appeal. Estrella v. United States, 429 F.2d 397, 399 (9th Cir., 1970); cert. denied 400 U.S. 1011, 91 S.Ct. 575, 27 L.Ed.2d 624 (1971); Benson v. United States, 402 F.2d 576, 580-581 (9th Cir., 1968). The embraeement of this document as part of the defense’s case below makes an attack upon its authenticity and sufficiency on appeal a meritless point. In any event, aside from the theoretical possibility of error in defense counsel’s trial tactics in waiving objection, any error is deemed to have been harmless in the face of the evidence presented, and particularly in light of the California conviction’s separate applicability under section 1202(a)(1). Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). Further, thru our utilization of the concurrent-sentence doctrine, resolution of this issue is mooted.

Because the defendant was convicted on each of twelve counts, and received the same sentence on each, which were to be served concurrently, we need not, for the convenience of the Court decide the validity of the convictions in counts seven to twelve, inclusive. See United States v. Gaines, 460 F.2d 176 (2d Cir., 1972). The judgment of conviction as to counts one thru six is affirmed.

      . Section 1203.4, as amended in 1970, reads in part:
      “(a) Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or has been discharged from probation prior to the termination of the period thereof shall, at any time thereafter, if he is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and he shall thereafter be released from all penalties and disabilities resulting from the offense of which he has been convicted.
      “Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess or have in his custody or control any firearm capable of being concealed upon the person or prevent his conviction under Section 12021.”

      . Section 176.225 reads in part:
      “1. Every defendant who :
      (a) Has fulfilled the conditions of his probation for the entire period thereof; or
      (b) Is recommended for earlier discharge by the chief parole and probation officer; or
      (c) Has demonstrated his fitness for honorable discharge but because of economic hardship, verified by a parole and probation officer, has been unable to make restitution as ordered by the court, may at any time thereafter be permitted by the court to withdraw his plea of guilty or nolo contendere and enter a plea of not guilty; or, if he has been convicted after a plea of not guilty the court, may set aside the verdict of guilty; and in either case, the court shall thereupon dismiss the indictment or information against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted.”

      . Section 12021 reads in part:
      “Any person . . . who has been convicted of a felony under the laws of the United States, of the State of California, or any other state, government, or country who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person is guilty of a public offense, and shall be punishable by imprisonment in the state prison not exceeding 15 years, or in a county jail not exceeding one year or by a fine not exceeding five hundred dollars ($500), or by both.”

      . Hoetor can be distinguished in important particulars. The Washington expungement statute, Wash.Rev.Code § 9.95.240 (1957), was given much broader application than section 1203.4. Hoetor noted that the Washington Supreme Court had construed section 9.95.240 to restore a felon’s “ ‘preconviction status as a full-fledged citizen,’ ” Matsen v. Kaiser, 74 Wash.2d 231, 237, 443 P.2d 843, 846-847 (1968) (concurring opinion), and that the Attorney General of Washington had stated that the provisions of Wash.Rev.Code § 9.41.040 (1935), prohibiting certain convicted felons from owning or carrying pistols, do not apply to one who has gained the benefits of section 9.95.240. In direct contrast, the California legislature amended section 1203.4 to expressly provide that the dismissal of an accusation does not permit a person to own, possess or control firearms concealable on the person, or prevent a conviction under section 12021. See discussion, supra. Thus, the two States are at direct variance in treating this particular problem under their laws. Since the determination of Andrino’s status under California law is quite clear in that he should be deemed not exempt from liability under the expungement statute, the remaining question posed and resolved in Hoetor as to a Federal and Washington State conflict is avoided. In that case, the Government sought to demonstrate that the application of the Washington expungement statute did not affect the reach of 18 U.S.C. § 842 (i). (This section falls within Chapter 40 — Importation, Manufacture, Distribution and Storage of Explosive Materials, 18 U.S.C. §§ 841- 848, which provides an enforcement scheme analogous to that in Chapter 44 — Firearms, 18 U.S.C. §§ 921-928, under which Andrino was convicted.) Hoetor found that 18 U.S.C. § 848 demonstrated Congress’ intent not to preempt this particular field to the exclusion of the States unless a “direct and positive conflict” existed between the Federal and State enforcement schemes. 18 U.S.C. § 848; see also 18 U.S.C. § 928. It further found that what differences did exist between Chapter 40 and the Washington statute were not irreconcilable. Therefore, in light of congressional intent not to override prior State law extant in the field, expressly provided in section 848, this Court in Hoetor deemed the application of section 9.95.240, as construed by Washington authorities, to be dispositive of the facts in that case.

      . But cf. Tsimbidy-Rochu v. Immigration & Naturalization Service, 414 F.2d 797, 798 (9th Cir., 1969).


author: PHILLIPS, Chief Judge.

text:
    Adolph K. KRAUSE and Janet S. Krause, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 73-1866.
    United States Court of Appeals, Sixth Circuit.
    Argued April 2, 1974.
    Decided May 30, 1974.

      Donald A. Statland, Chicago, 111., for petitioners-appellants; Calvin Eisenberg, Howard C. Flomenhoft, Chicago, 111., on brief.
    Jane M. Edmisten, Atty., Tax Div., Dept, of Justice, Washington, D. C., for respondent-appellee; Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Michael L. Paup, Attys., Tax Div., Dept, of Justice, Washington, D. C., on brief.
    Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and WALINSKI, District Judge.

       Honorable Nicholas J. Walinski, Judge, United States District Court for the Northern District of Ohio, sitting by designation.

   PHILLIPS, Chief Judge.

Mr. and Mrs. Adolph K. Krause (taxpayers) appeal from a decision of the United States Tax Court, per Judge Samuel B. Sterrett, upholding the Commissioner’s determination of deficiencies in taxpayers’ federal income tax for the taxable years 1964, 1965 and 1966. We affirm.

For a comprehensive statement of the facts, reference is made to the opinion of Judge Sterrett, 57 T.C. 890 (1972).

In 1959 taxpayers created and capitalized a Michigan limited partnership named A. K. Company. Contemporaneously, Mr. Krause created three trusts naming taxpayers’ children as beneficiaries, and Mrs. Krause created three trusts naming their grandchildren as beneficiaries. The childrens’ trusts were each funded with $100 and 50 shares of Wolverine Shoe & Tanning Corp. (now Wolverine World Wide, Inc.). The grandchildrens’ trusts were each funded with $100 and 25 shares of Wolverine stock. Wolverine is an outgrowth of a partnership begun by the Krause family in 1883, and in all years pertinent hereto Mr. Krause was president and a director of Wolverine.

Simultaneously with the execution of the partnership and trust agreements, Mr. Krause executed a series of documents wherein he agreed to transfer his 60 per cent limited partnership interest in A. K. Company to the six trusts in exchange for $100 and 80 per cent of the income received by the trusts from A. K. Company for a period of 16 years. ■ Fifteen per cent of the limited partnership interest was allocated to each of the three childrens’ trusts and five per cent was allocated to each of the three grandchildrens’ trusts.

The Commissioner, claiming that the six trusts were not bona fide partners in the A. K. Company within the meaning of § 704(e) of the Internal Revenue Code of 1954, 26 U.S.C. § 704(e), asserted deficiencies for the calendar years 1964 through 1966 on the basis that all the income received by the trusts was taxable to taxpayers rather than the trusts.

From the adverse decision of the Tax Court upholding deficiencies for the three years aggregating $97,654.07, taxpayers raise three issues on appeal: 1) Were the six trusts bona fide partners in the A. K. Company within the meaning of § 704(e) of the Code? 2) Were taxpayers liable for taxes on the income produced by 25 shares of Wolverine stock held by each of the six trusts? 3) Did the Tax Court err in computing the deficiencies?

I.

After considering all of the factors in this case, the Tax Court correctly found that taxpayers retained too many incidents of ownership for the trusts to be the real owners of the partnership interest. Reference is made to 57 T.C. at 898 for a convincing listing of these incidents of ownership.

Taxpayers do not contest that they retain numerous incidents of ownership over the trusts. Rather they contend that the Tax Court erred in that (a) the trusts are bona fide partners in A. K. Company within the plain language of § 704(e) of the Code, and (b) the principles established in United States v. Byrum, 408 U.S. 125, 92 S.Ct. 2382, 33 L.Ed.2d 238 (1972), a case decided subsequent to the decision of the Tax Court, preclude taxation of the income received by the trusts to them.

Section 704(e) of the Code provides, in effect, that a person may be recognized as a partner for income tax purposes “if he owns a capital interest in a partnership in which capital is a material income-producing factor.” (Emphasis added.) That section was enacted to prevent taxpayers from using the family partnership as a means of splitting family income and thus circumventing the progressive tax rate structure of the federal income tax. The legislative history of the section shows that Congress wanted the Commissioner and the courts to inquire into the question of whether the donee or the purchaser actually owns the purportedly transferred interest; and, in cases where the transferor retained incidents of ownership, it was the Congressional intent that he be taxable on the partnership’s income. H.Rep.No.586, 82d Cong., 1st Sess., p. 33; S.Rep.No.781, 82d Cong., 1st Sess., pp. 39-40; 2 U.S.Code Cong. & Admin. News, pp. 1781, 1813-1815 & 1969, 2008-2010. Further, the Commissioner specifically implemented this Congressional purpose in Treas.Reg. § 1.-704-1(e) (1) (iii). This court recognized the Congressional purpose in Ballou v. United States, 370 F.2d 659, 661-662 (1966).

We are, therefore, unpersuaded by taxpayers’ contention that the plain language of § 704(e) supports taxpayers’ claim that the trusts were bona fide partners in A. K. Company.

Further, taxpayers rely on Byrum, supra, a case in which the Supreme Court held that the powers which a settlor of a trust held over certain trust income were not so great as to require inclusion of the trust in his gross estate under § 2036(a) of the Code. In Byrum, the settlor-decedent transferred to an irrevocable trust for the benefit of his children stock in three corporations which he controlled, retaining the right to vote the transferred stock, to veto the transfer by the trustee of any of the stock, and to remove the trustee and appoint another trustee as successor.

We conclude that Byrum is not controlling in the present case. The estate tax statute involved in Byrum, § 2036(a), is different, in terms of language, legislative history and objectives, from the income tax statute involved in the present ease, § 704(e). Section 704(e) recognizes a person as a partner for tax purposes if he owns a capital interest in á partnership in which capital is a material income-producing factor. On the other hand, § 2036(a) requires the inclusion in decedent’s gross estate of the value of any property which he has transferred by inter vivos gift, if he retained the enjoyment of the property for his lifetime or the right to designate who shall enjoy the income therefrom.

In addition to the fact that the present case involves a family partnership with entirely different language, legislative history and objectives than that contained in § 2036(a), taxpayers here retained greater incidents of ownership than did the settlor in Byrum. Taxpayers control the partnership in which the instant trusts purportedly “own” interests. They are the dominant force in the corporation whose stock forms the principal partnership asset. They have contingent rights to trust income and principal under the trust instruments. Through their power to control the trustees they have the power to realize on those contingencies. The Tax Court correctly concluded that taxpayers “retained a present income interest and reserved the right to reacquire the principal interest.” 57 T.C. at 898.

We, therefore hold that the six trusts were not bona fide partners in the A. K. Company within the meaning of § 704(e). Consequently, taxpayers are taxable on the income attributable to the partnership interest.

II.

In addition to the partnership interests held by the six trusts, each of the trusts held shares of Wolverine stock. The three childrens’ trusts, which were funded by Mr. Krause, held 50 shares of Wolverine stock. The three grandchildrens’ trusts, which were funded by Mrs. Krause, held 25 shares of Wolverine stock. The Tax Court determined that the taxpayers were taxable on the income arising from such holdings to the extent of mutual value, i. e., to the extent of the income on 25 shares of stock per trust. The court’s conclusion in this regard was based on the application of the reciprocal trust doctrine enunciated by the Supreme Court in United States v. Estate of Grace, 395 U.S. 316, 89 S.Ct. 1730, 23 L.Ed.2d 332 (1969), and by the grantor trust provisions contained in §§ 671 through 678 of the Code, specifically § 677(a)(2).

After careful consideration of the relevant trust provisions and the authorities cited by taxpayers, we hold that the Tax Court correctly decided this issue for the reasons set forth in its opinion. 57 T.C. at 899-903. See also, Duffy v. United States, 487 F.2d 282, 284-288 (6th Cir. 1973).

III.

Following the filing of the Tax Court’s opinion, the deficiencies due from taxpayers were computed pursuant to Rule 50 of the Tax Court. Over the objections of taxpayers, the Tax Court adopted the Commissioner’s computation.

On appeal, taxpayers maintain that the Commissioner’s computation was erroneous in that (a) it failed to allow them a credit for the tax paid by the trusts in respect of the income subsequently taxed to taxpayers, and (b) it erroneously ignored the fiscal year of the trusts in determining the amounts to be included in taxpayers’ income.

Section 671 of the Code admittedly provides that when a grantor is to be treated for tax purposes as the owner of a trust that the grantor is entitled to the same deductions and credits as the trust would be entitled to. That section does not, however, provide that the grantor-taxpayer is entitled to credit the taxes paid by the trust against his own tax liability. The trust and the grant- or-taxpayer are separate tax entities. We refuse to permit one to offset a tax liability by claiming a credit for taxes paid by the other absent a statute or regulation permitting such procedure.

We likewise find no merit in taxpayers’ assertion that the Tax Court erroneously ignored the fiscal year of the trusts in determining the amounts to be included in taxpayers’ income. Although the trusts’ fiscal years ended on January 31 (as opposed to the December 31 date on which taxpayers’ taxable year ended), the Commissioner made a factual determination that all trust income taxed to taxpayers was realized during the year that it was taxed to them. This determination is not challenged on appeal.

Affirmed.


author: MULLIGAN, Circuit Judge:

text:
    BRIDGEPORT GUARDIANS, INC., et al., Plaintiffs-Appellees, Cross-Appellants, v. MEMBERS OF the BRIDGEPORT CIVIL SERVICE COMMISSION et al., Defendants-Appellants, Cross-Appellees.
    Nos. 898, 899, Dockets 73-2595, 74-1014.
    United States Court of Appeals, Second Circuit.
    Argued April 30, 1974.
    Decided June 3, 1974.
    Ira Horowitz and Michael P. Koskoff, Bridgeport, Conn., for plaintiffs-appellees.

      J. Daniel Sagarin, Bridgeport, Conn, and Richard Sheiman, Asst. City Atty., Bridgeport, Conn., for defendants-appellants.
    Before WATERMAN, FRIENDLY and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

The appeal and cross-appeal here involve litigation which was commenced on February 24, 1972, in the United States District Court for the District of Connecticut, by the Bridgeport Guardians, Inc., the Housing Police Benevolent Association and several Black and Puerto Rican individuals who had taken but failed merit system examinations for initial appointments and promotions within the Bridgeport Police Department. The defendants, members and the Director of the Bridgeport Civil Service Commission and the Superintendent of the Bridgeport Police Department, were principally charged with administering entrance and promotion examinations which discriminated against Black and Spanish speaking persons on the basis of race, color and/or national origin. Declaratory and injunctive relief was sought under the Civil Rights Acts, 42 U.S.C. §§ 1981, 1983 and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202.

On January 29, 1973, Hon. Jon O. Newman filed a Memorandum of Decision, reported at 354 F.Supp. 778, in which he found that the entrance test was unjustifiably discriminatory in effect, but that the plaintiffs had failed to sustain their burden of proof with respect to the promotion exam. As a remedy, the district court enjoined further use of the entrance examination and imposed hiring and promotion quotas which would have raised the level of minority employment within the Department to about 15%; the hiring quota was designed to introduce 50 Black and Puerto Rican patrolmen onto the force.

On June 28, 1973, we issued an opinion, reported at 482 F.2d 1333, affirming the judgment of the district court except with respect to the promotion quotas. We found that these were not warranted, but remanded to the district court so that it could consider whether other relief was appropriate. Familiarity with our prior opinion is assumed.

On remand, Judge Newman heard the parties informally in open court and in chambers, and on October 3, 1973, filed a Memorandum of Decision formulating and implementing a remedy in conformity with this court’s opinion that any modification of promotion procedures should “apply to all candidates for promotion irrespective of race or ethnic background.” 482 F.2d at 1341. He refused to impose a modified promotion quota or to enlarge the hiring quota, but the time-in-grade criterion for eligibility for promotion was reduced from 3 years to 1 year and the weighting of seniority, and training, experience and general qualifications in the promotion procedure was decreased from 40% to 10%. Moreover, the court determined that the existing eligibility list for the rank of sergeant should cease to be valid one year after the date on which the 15th minority patrolman is appointed.

The plaintiffs urged below and on this appeal that the hiring quota should be increased to 75 so that the 15% minority level is achieved. We agree with the district court that the affirmance of this part of Judge Newman’s initial decree by this court was unqualified - and we see no reason to change the views expressed there. Plaintiffs’ claim that the absence of immediate minority group representation in supervisory ranks undercuts recruitment because of discouragement is effectively answered by the fact that some 271 applications were received from minority members for the examination held after this court’s initial decision. 231 took the exam and 81 were successful. After disqualification for failure to meet announced requirements as well as to pass physical examinations, an eligible list of 35 has emerged.

The defendants have appealed from the determination shortening the life of the sergeant’s eligibility list. They urge that it is an abuse of discretion since promotion candidates are normally entitled to have their rankings stand for a two-year period. We do not agree. The court below is familiar with and sensitive to the issues here, which are delicate as well as intricate. There has been, in our view, compliance with the decision of this court, and the fashioning of the remedy here is a particularly appropriate task for the district court. Coalition for Educ. in Dist. One v. Board of Elections, 495 F.2d 1090, 1094 (2d Cir. 1974) (per curiam).

Plaintiffs further urge that the court below abused its discretion by refusing to grant counsel attorneys’ fees as part of costs. The district court found that it had discretion to award attorneys’ fees, but declined to exercise it here since the litigation was not compelled by the defendants’ “unreasonable, obdurate obstinacy,” the test employed by this court in Stolberg v. Trustees for the State Colleges of Connecticut, 474 F.2d 485, 490 (1973). While attorneys’ fees are permitted in actions brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by express statutory authorization, 42 U.S.C. § 2000e-5(k), the failure of Congress to provide for such fees in § 1983 cases is, in our view, significant. While we do not rule out the possibility that counsel fees might be appropriate in some § 1983 cases, even absent statutory authority, we see no reason to reverse the determination below denying them. In Jordan v. Fusari, 496 F.2d 646, 650 (2d Cir. 1974), this court remanded the question of the propriety of legal fees in a § 1983 action to the district court in view of the inadequacy of the record before the district judge in that case. There is no such problem here. The trial judge was fully aware of all of the facets of this ease, the contribution made by counsel for plaintiffs, as well as the reasonableness of the resistance to the plaintiffs’ claims by the defendants. We do not find any abuse of discretion.

Affirmed.

      . This action was filed before the 1972 amendment to Title VII of the Civil Rights Act of 1964, Pub.L. No. 92-261, § 2(1), (2), 86 Stat. 103 (March 24, 1972), amending 42 U.S.C. § 2000e(a), (b) (1970), which had the effect of extending coverage of the Act to state and municipal employees.

      . We do not overlook the Supreme Court’s recent opinion in Bradley v. School Bd., - U.S. -, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), a school desegregation case commenced in 1961 under § 1983. The Court there held that § 718 of Title VII of the Emergency School Aid Act, 20 U.S.C. § 1617, which became effective on July 1, 1972, see Pub.L. 92-318, § 2(c)(1), 86 Stat. 236, had application to pending litigation and provided a basis for a fee award. Section 718, however, expressly authorizes the recovery of attorneys’ fees in school desegregation suits brought under § 1983. Here no such statute exists,


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Donald M. ZOUKAS, Defendant-Appellant.
    No. 73-1734.
    United States Court of Appeals, Seventh Circuit.
    Argued April 12, 1974.
    Decided May 29, 1974.

      Arthur E. Engelland, Robert S. Bailey, Chicago, 111., for appellant.
    James R. Thompson, U. S. Atty., Jeremy D. Margolis, Asst. U. S. Atty., Chicago, 111., for appellee.
    Before CUMMINGS, PELL and STEVENS, Circuit Judges.
   PER CURIAM.

Defendant was convicted by a jury upon both counts of a two-count indictment. Count One charged a violation of the Mann Act, 18 U.S.C. § 2421, and Count Two, the use of the mails in furtherance of extortion, in violation of 18 U.S.C. § 876.

The evidence showed that Deborah De Witt, now Deborah Ludwell, worked as a prostitute for defendant, beginning in December, 1971. In February, 1972, she traveled by car to New Orleans for the Mardi Gras season with the defendant and another man, Fred Schwartz. While passing through Memphis on their return trip to Chicago, the defendant stopped the ear to ask directions from a young girl, Deborah Wertz. A conversation ensued, defendant learned that she was sixteen years old, and earning money by working as a prostitute.

It was agreed that Wertz “was a member of our family now and . would be going back north with them.” They returned to Wertz’s hotel room, where she collected her belongings. Schwartz said he would not drive north with “jail bait,” and was driven to the bus depot; the other three then returned to Chicago by car.

Wertz and De Witt worked for defendant after arriving in Chicago. On May 2, De Witt quarrelled with the defendant, ended their relationship, and returned to her parents’ home in Dolton. She provided the Vice Control Division of the Chicago Police Department with information concerning defendant’s operation. Apparently as a result of this information, Wertz was arrested on May 9.

On May 22, De Witt’s mother was visited by her sister and brother-in-law. They gave her the envelope which is the subject of Count Two of the indictment. The envelope contained two photographs of Mrs. De Witt’s daughter engaged in the commission of homosexual acts and a letter reading as follows:

“Mrs. De Witt’s oldest daughter in action.
“These pictures and other ones like them are going to be sent to the neighbors; youngest daughter’s graduation ; and relatives.
“The De Witt family will be embarrest [sic] I would say.
“I think Dee should take a vacation for about a year or so. And not make any appearences [sic] against anyone in court or otherwise from this day on. Then the pictures will never be sent.
“Interested Party”

The record indicates that the defendant had induced De Witt and another woman to engage in posed lesbian acts, and had taken the photographs. He represented that they were to be sold for $20 each. The record also indicates that handwriting analysis, and fingerprint analysis connected the defendant with the letter.

Defendant offers three principal arguments for the reversal of his conviction. We cannot accept any of them, and therefore affirm the judgment of the district court.

First. Defendant argues that the district court erred when it allowed the Government to impeach Deborah Wertz for her silence. The principal question of fact in the Mann Act count was whether Deborah Wertz returned to Chicago in defendant’s car, as De Witt testified, or whether she came by bus, as she . testified on cross-examination. Wertz was asked if she had refused to answer any questions posed by the FBI concerning her mode of transportation between Memphis and Chicago. Defendant argues that she had a Fifth Amendment right to remain silent and, consequently, that her remaining silent could not be commented upon consistently with the Constitution.

The right to remain silent, guaranteed by the Fifth Amendment, is a privilege against self-incrimination, drawn from the language “No person . shall be compelled in any criminal case to be a witness against himself . .” It is not entirely clear whether Wertz’s silence was a proper ex-ercise of this privilege, because it is not clear whether the mode of transportation by which Wertz traveled from Memphis to Chicago was relevant to any of her own criminal activity. Nevertheless, since the “privilege afforded not only extends to answers that would in themselves support a conviction but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant,” Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118, we are not prepared to hold that Wertz had no Fifth Amendment privilege in these circumstances.

We reject defendant’s argument because, assuming arguendo that Wertz’s silence was a proper exercise of the privilege, defendant is not entitled to benefit from it. It is clear that evidence excluded by virtue of the privilege against self-incrimination, like evidence excluded by any privilege, is excluded not because the evidence is not relevant —by hypothesis it is — but because of independent policy justifications. Since it is relevant, it should be excluded only when the policies justifying the privilege so require.

We think Wertz’s silence was relevant. She testified that she traveled to Chicago from Memphis by bus; the fact that the prosecutor was able to elicit, on cross-examination, that she refused to tell FBI investigators any story — including the one to which she testified — reflects upon the credibility of that testimony. It was, therefore, useful to the jury. Since we do not understand the defendant to argue, and do not think he properly could argue, that, apart from his constitutional claim, he could make any proper objection to this testimony, we think the district court properly allowed it, unless the Fifth Amendment forbade it.

Whether this relevant evidence should have been excluded turns upon the meaning of the constitutional privilege against self-incrimination. In Couch v. United States, 409 U.S. 322, 328, 93 S.Ct. 611, 616, 34 L.Ed.2d 548, the Supreme Court outlined the scope of the privilege in general as follows:

“It is important to reiterate that the Fifth Amendment privilege is a personal privilege: it adheres basically to the person, not to [the] information that may incriminate him. As Mr. Justice Holmes put it: ‘A party is privileged from producing the evidence but not from its production.’ Johnson v. United States, 228 U.S. 457, 458 [33 S.Ct. 572, 57 L.Ed. 919 (1913).”

More relevant to the case before us, the court continued:

“The Constitution explicitly prohibits compelling an accused to bear witness ‘against himself’: it necessarily does not proscribe incriminating statements elicited from another.”

The privilege then, is one against self-incrimination. It is designed to protect persons from testifying against themselves ; its application in cases like Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931, is to prevent juries from drawing adverse inferences from the fact that a defendant exercised his right to remain silent previously. Its protection only of the one who was entitled to exercise it, is well established:

“The right of a person under the Fifth Amendment to refuse to incriminate himself is purely a personal privilege of the witness. It was never intended to permit him to plead the fact that some third person might be incriminated by his testimony, even though he [was] the agent of such person.” Hale v. Henkel, 201 U.S. 43, 69-70, 26 S.Ct. 370, 377, 50 L.Ed. 652.

Since there was no in-court claim of the Fifth Amendment privilege by the witness, we hold that it was not error to allow the prosecutor to bring to the attention of the jury the fact that a witness had previously remained silent when, arguendo, she had a right to do so. The defendant had no stake in Wertz’s Fifth Amendment rights. Cf. United States v. Castro, 438 F.2d 468, 470 (7th Cir. 1971).

“We hold that . . . the relevance of [the witness’] grand jury claim of privilege outweighed the danger that the jury would draw from it any impermissible inference regarding [the defendant’s] guilt. . . . ” 250 F.2d at 239. Since no claim of prejudice is made here, the rule of those cases is not before us.

Second. Defendant argues that the conduct charged in Count Two of the indictment did not establish a violation of 18 U.S.C. § 876. His position, principally, is that De Witt’s testimony was not “a thing of value” within the meaning of the statute. We believe that it was.

The statute prohibits extortion of “money or [any] other thing of value.” This court has suggested that “any other thing of value” is to be given the broad reading its language implies. “ . . . [W]e think it obvious that Congress intended ... to penalize every extortion demand by mail which is coupled with an express threat . .” United States v. Prochaska, 222 F.2d 1, 2 (1955). Under such broad language, we have no difficulty in concluding that De Witt’s testimony was a thing of value. The defendant’s letter indicates that it was valuable to him; De Witt’s testimony indicates that she valued the right to testify against him; and the common law’s ancient right of the court to everyman’s evidence indicates its value to the people at large. The mere fact that the value could not easily be translated into a monetary figure does not affect its character for purposes of § 876.

The indictment charged, and the evidence proved, a violation of that statute.

Third. Defendant argues that the two offenses were improperly joined under Rule 8(a), F.R.Crim.P. and, alternatively if they were not, the district court abused its discretion in not granting a severance pursuant to Rule 14, F.R.Crim.P.

In United States v. Quinn, 365 F.2d 256, 263 (7th Cir. 1966), we set forth the requirements for a proper joinder under Rule 8(a), as follows:

“ . . . [J]oinder of two or more crimes in the same indictment is permissible only if one or more of the following three circumstances appear . : (1) the crimes must be the same or of similar character, (2) the crimes must be based on the same act or transaction, or (3) the crimes must be based on two or more transactions connected together or constituting parts of a common scheme or design.”

In determining whether those criteria apply, the court should be guided by the extent of evidentiary overlap.

In the case before us, we think the third Quinn criterion is satisfied. The acts charged in both counts constituted parts of one scheme by the defendant, namely, the operation of an illegal ring of prostitution on Chicago’s near north side, knowledge of which defendant wanted to keep away from the police. Within that scheme, an even closer connection existed. De Witt was a principal witness in the Mann Act charge, she worked closely with Wertz, the Mann Act “victim,” in the Chicago prostitution ring, and she could, and did before the letter was sent, provide the police with information which could, and apparently did, lead to the apprehension of the defendant. She provides the significant evidentiary overlap between the counts. De Witt’s testimony, which described the transportation of Wertz from Memphis to Chicago, and the fact that, in Chicago, she worked as a prostitute for the defendant, was critical to the Mann Act charge. The same evidence was admissible on the Second Count to show to what it was that De Witt could testify which might have frightened the defendant into sending the extortionate letter. The joinder was proper.

We think, also, that the district court did not abuse its discretion in denying defendant’s motion for severance, pursuant to Rule 14. The principal grounds for claiming prejudice are the presence of the two photographs mailed in the letter which was the subject of Count Two. The pictures are explicit portrayals of lesbian activity. We do not doubt that there are circumstances in which they might be highly inflammatory. For two reasons, however, we do not think there was prejudice in this case.

First, the pictures are alleged to have tainted defendant’s conviction under the Mann Act. The facts surrounding that charge- -a sixteen year old runaway girl, living by prostitution in Memphis and then coming to Chicago to participate in a fairly sophisticated prostitution business — necessarily made the jury more impervious to the photographs than they might have been in a case involving less sordid facts.

Second, the pictures showed De Witt engaging in the conduct which might have shocked the jury, notwithstanding the nature of the case. But she was the principal witness for the Government. We are not at all sure whether the pictures of her engaging in such conduct were more likely to inflame the jury against the defendant, or against her, the witness, upon whose veracity the Government’s case turned. In a situation of such ambiguity, we cannot say that the district court abused its discretion under the standard applicable in this circuit.

The judgment is

Affirmed.

      . These statutes provide, in pertinent part: § 2421 “Whoever knowingly transports -in interstate . . . commerce . . . any woman or girl for the purpose of prostitution . . ., or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice; . . .
      “Shall be fined not more than $5,000 or imprisoned not more than five years, or both.”

        § 876: “Whoever, with intent to extort from any person any money or other tiling of value, knowingly so deposits or causes to be delivered, as aforesaid, any communication, with or without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to injure the property or reputation of the addressee or of another, or the reputation of a deceased person, or any threat to accuse the addressee, or any other person of a crime, shall be fined not more than $500 or imprisoned not more than two years, or both.”

      . Testimony of De Witt. Tr. 90.

      . Tr. 92.

      . This fact was disputed vigorously at trial; the jury’s verdict requires us, of course, to rely upon the evidence most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 02 S.Ct. 457, 86 L.Ed. 680.

      . Indictment, p. 3.

      . Tr. 107-108.

      . Tr. 233-238; 254.

      . Defendant also offered a fourth argument, lie suggests that it was error to allow the prosecutor to impeach his credibility by bringing his six prior felony convictions to the attention of the jury when he testified only on surrebuttal, and only to his own name. We think there is no merit in this argument. First, it is well-settled that the credibility of any witness is in issue when he testifies, and therefore, is subject to impeachment. There is no reason why this does not apply to a criminal defendant who can elect not to testify. When he waives his right to remain silent, it must be because he has something to say which he wants the jury to believe. Second, there is no basis for making an exception here because, on direct examination, defendant testified only to his own name. The names by which defendant went were a question for the jury. Defendant admitted using three aliases, but denied the use of two others, Tr. 511. Since this denial was in direct conflict with Deborah De Witt’s testimony, his credibility was unquestionably in issue, and impeachment proper.

      . “BY MR. NASH:

        Q Directing your attention to February 19, 1972. This is the day, I believe, you testified you went out to the house on West 64th Place with your parents and the police officers?
      A Which?
      Q May 19, 1972?
      A Yes.
      Q Were you interviewed by an agent of the FBI concerning your trip from Memphis to Chicago?
      A An agent talked to me.
      Q And isn’t it true that you refused to answer any questions?
      MR. ENGELLAND: I am going to object, Judge.
      THE COURT: Repeat the question.
      BY MR. NASH:
      Q Isn’t it true that you refused to answer any questions concerning how you got from Memphis, Tennessee to Chicago, Illinois.
      MR. ENGELLAND: I am going to object, Judge. It is a conversation outside of his presence and it calls for a conclusion.
      THE COURT: You may answer the question.
      BY THE WITNESS:
      A I refused to answer any questions.”
      Tr. 382-383.

      . For purposes of federal law, Wertz was a “victim,” not a “criminal suspect.” Nevertheless she had been arrested by local authorities on May 9, and was possibly liable to prosecution under Article 11 of the Illinois Criminal Code, 38 Ill.Rev.Stat.

      . The Government suggests that since Wertz was not conscious of her Fifth Amendment privilege when she remained silent, the privilege cannot apply. We cannot agree. The knowledge might be relevant to the question whether she had waived her privilege, but the existence of the privilege itself cannot turn upon whether a person knows, or is informed by the police, that the privilege exists. Cf. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.

      . The parties discuss two Second Circuit cases, United States v. Tomaiolo, 249 F.2d 683 (1957), and United States v. Sing Kee, 250 F.2d 236 (1957), cert. denied, 355 U.S. 954, 78 S.Ct. 538, 2 L.Ed.2d 530. Although Tomaiolo can arguably be read as holding the evidence of silence was not relevant, we think both cases may properly be read to stand for the proposition that, where a witness had remained silent under the protection of the Fifth Amendment, the court must balance relevance against prejudice to the defendant. The Sing Kee court stated:

      . See also Rogers v. United States, 340 U.S. 367, 371, 71 S.Ct. 438, 95 L.Ed. 344.

      . This holding is consistent with the Supreme Court’s analysis of Fourth Amendment rights which may not be asserted vicariously. See Alderman v. United States, 394 U.S. 165, 171-176, 89 S.Ct. 961, 22 L.Ed.2d 176.

      . The statute is set out in n. 1, supra.

      . In his brief, defendant questions why he was not indicted for violating statutes prohibiting obstruction of justice, 18 U.S.C. §§ 1503 and 1510. These statutes, he claims, were meant to cover the conduct which he was alleged to have committed. We need not decide whether that claim is correct, for we think the language of the Court of Appeals for the Second Circuit is a complete answer to his position: “ . [T]he settled rule [is] that where criminal statutes overlap the government is entitled to choose among them provided it does not discriminate against any class of defendants.” United States v. Ruggiero, 472 F.2d 599, 606 (1973) cert. denied, 412 U.S. 939, 93 S.Ct. 2772, 37 L.Ed.2d 398. If defendant extorted a “thing of value” under § 876, prosecution under that section was proper.

      . Tr. 114.

      . Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 33 L.Ed.2d 626. See also In re Subpoena to Nixon, 360 F.Supp. 1, 9-10 (D.D.C.1973).

      . Rule 8(a), F.R.Crim.P., provides :
      “Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”
      Rule 14, F.R.Crim.P., provides :
      “If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.”

      . See James v. United States, 416 F.2d 467, 474 (5th Cir. 1969).

      . They were part of the threat involved in Count Two, and hence admissible there.

      . See United States v. Blue, 440 F.2d 300, 302 (7th Cir. 1971).