author: HILL, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Dr. Bruce E. HODGES, Defendant-Appellant.
    No. 72-1790.
    United States Court of Appeals, Tenth Circuit.
    Argued Feb. 22, 1973.
    Decided May 21, 1973.

      Roger D. Stanton, Overland Park, Kan. (David K. Fromme, Kansas City, Kan., on the brief), for defendant-appellant.
    Edward H. Funston, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty. and Glen S. Kelly, Asst. U. S. Atty., on the brief), Topeka, Kan., for plaintiff-appellee.
    Before HILL and DOYLE, Circuit Judges, and BRATTON, District Judge.
   HILL, Circuit Judge.

Appellant was charged in a six-count indictment of unlawfully having sold or caused to be sold and delivered to an agent of the Bureau of Narcotics and Dangerous Drugs (BNDD) six separate quantities of dl-methamphetamine HCL tablets, a “depressant or stimulant drug” within the meaning of 21 U.S.C. § 321 (v) (2), in violation of 21 U.S.C. § 331(q) (2). Convictions were had on all counts following a jury trial. On this direct appeal from the convictions, Hodges asserts the commission of numerous errors at the pre-trial, trial and post-trial stages of the case.

The evidence on behalf of the prosecution generally reflects as follows. Hodges was visited on five occasions in February and March, 1971, by an agent of BNDD. On the first three of those visits the agent was able either to purchase from Hodges tablets containing the proscribed drug or obtain prescriptions for such tablets. On the first occasion, February 20, 1971, the agent, after gaining admission to Hodges’ office and introducing himself under an alias name, purchased “about thirty” tablets containing methamphetamine. Two days later he returned and received from Hodges two 60-tablet prescriptions for tablets containing methamphetamine. The prescriptions had been written for the agent and his nonexistent “wife,” whose fictitious name the agent had given Hodges to enable Hodges to write the prescriptions for larger amounts of the tablets. On February 27, 1971, the agent again returned to Hodges’ office and, on that occasion, received three prescriptions: one for the agent under a modification of his assumed name for 30 tablets; one in the agent’s alias name for 40 tablets; and one in the alias name of the agent and his “wife” for 60 tablets. The agent was able to obtain the tablets represented by each of the five prescriptions upon presentation to a local pharmacy. These were admitted into evidence with the stipulation of both counsel in each instance that the tablet vials received by the agent upon presentation of the prescriptions contained the drug called for in the prescriptions. The vial of tablets which the agent purchased from Hodges at their first meeting was also admitted with the stipulation that the vial he received contained the drug tablets.

The agent also visited Hodges on two subsequent occasions, March 11 and March 24, 1971. On neither of these occasions were drugs sold or prescriptions made to enable the agent to secure additional quantities of the drug. The two visits are, however, relevant to this appeal by virtue of the agent having recorded the conversations between himself and Hodges with a small recorder strapped to his body. These recordings form the basis of appellant’s first assertion of error.

Hodges argues that he was entitled as a matter of right to pre-trial discovery and inspection of the tape recordings under F.R.Crim.P. Rule 16(a). He contends he was entitled to this discovery without the necessity of establishing a reason for the discovery as required under F.R.Crim.P. Rule 16(b). Recorded conversations of a defendant clearly fall within the ambit of the discovery provisions of Rule 16. The original motion by Hodges for discovery pursuant to Rule 16(a) (1) requested from the prosecution all tape recordings in its possession of conversations between the defendant and any other person, and particularly between the defendant and a government agent. There was also expressed in the motion a willingness to reciprocate in discovery under the provisions of Rule 16(c). At a pre-trial hearing on the motion, Hodges’ request for the tape recordings was granted. The government then filed its motion for reciprocal discovery under Rule 16(e) requesting the court to condition its prior order granting defendant’s discovery on the defendant’s permitting the government to discover and copy tape recordings made by the defendant of conversations between himself and the agent. On the basis of the willingness to reciprocate expressed in defendant’s discovery motion, the government’s reciprocal discovery motion was granted. No tape recordings of the two above mentioned conversations were subsequently exchanged prior to trial.

Resolution of this question must be on whether it was reversible error for the government to fail to turn over to Hodges the two challenged tape recordings. We would first note that broad limits on discovery of a defendant’s statements have been applied under Rule 16(a), and that “withholding a defendant’s statement should be the exception, not the rule.”

We recognize that in application of the nonmandatory provisions of Rule 16(a) to discovery of recorded conversations of a defendant, there has developed a division of opinion among courts applying the rule. In this case we need not consider this divergence of authority.

In United States v. Skillman, 442 F.2d 542, 550 (8th Cir. 1971), cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L. Ed.2d 63, the court held that the failure of the government to disclose to the defendant a tape recorded conversation of the defendant was not reversible because “[t]he recorded conversation was not a ‘relevant statement’ under the meaning of Rule 16. It was introduced not as a part of the government’s case-in-chief, but on rebuttal. ... It was not admitted for its truth, but was admitted solely for the purpose of [impeachment]. . There was nothing in the statement which had any bearing on the substantive crimes charged.” We would, however, emphasize that our reliance on Skillman is not to be interpreted as a license by which a defendant may be denied prior discovery of relevant materials only to be subsequently confronted with the evidence introduced under the guise of rebuttal. The narrow limits of Skillman dictate that the previously undiscovered material, to be admissible on rebuttal, must have first not been subject to prior discovery as a “relevant statement” and that the evidence, devoid of any substantive probative value, be introduced solely for its impeachment value.

In this case the tape recorded conversations in question were not introduced as part of the prosecution’s casein-chief but only after cross-examination by defense counsel had opened the area to their introduction on redirect examination by the prosecution. Additionally, the conversations contained no statements that were relevant to the substantive offenses for which appellant was indicted. Likewise, the government in its motion for reciprocal discovery indicated its belief that appellant also possessed recordings of the conversations. Without here determining whether the prosecution’s mere expression of its belief would, standing alone, constitute a sufficient showing to impose the strictures of Rule 16(e) on discovery by the defendant, we would note the trial court, in addition, had before it the expressed willingness of the defendant to reciprocate in discovery. Under these circumstances, the restriction of discovery upon the condition of reciprocity was not error. In any event, the failure to require discovery of the recordings was harmless error in view of the weight of evidence confronting the appellant of the charged transactions and the fact that the recordings of conversations occurring subsequent to the dates of the charged transactions, lacked any substantive connection to the transactions charged.

Appellant next asserts the trial court erred in permitting the BNDD agent to testify on redirect examination by the prosecution concerning the fifth visit to Hodges’ office. He contends this visit was not opened on cross-examination; therefore any redirect examination into this area was irrelevant, immaterial, prejudicial and beyond the scope of any prior examination. The scope of redirect examination is committed to the sound discretion of the trial court, and will be reversed only on a showing of abuse of that discretion. The record clearly shows this area of examination was opened on cross-examination with notice of that fact to defense counsel. The prosecution may conduct redirect examination in areas which were the subject of cross-examination. The trial court properly admitted the agent’s testimony concerning the fourth and fifth visits.

Challenge is next made to the introduction and playing in the presence of the jury of the agent’s tape recording of the conversation of the fifth visit on an additional ground. Hodges maintains the recording should have been excluded because portions of the tape were inaudible due to the microphone leads concealed under the agent’s clothing having come in contact with and rubbed against the agent’s clothing. The admissibility of a tape recording on a challenge that it is unintelligible or inaudible is a matter within the sound discretion of the trial judge.

Hodges next contends the trial court erred in overruling his motion for mistrial on the basis of the prosecutor’s improper comments in the course of final argument. The first comment was related to discounting the significance that only a small gain had been realized on the transactions by Hodges. The prejudicial comment related that this gain would not be recorded as income, therefore would be outside appellant’s high income tax bracket. In sustaining defense counsel’s objection that the comment was beyond the bounds of any evidence, the court admonished the jury to disregard the comment and further warned the prosecutor that repetition of the matter would result in a declaration of mistrial. In Bailey v. United States, 410 F.2d 1209 (10th Cir. 1969), cert. denied, Freeman v. United States, 396 U.S. 933, 90 S.Ct. 276, 24 L.Ed.2d 232, we stated at 1214, in assessing the effect of “certain questionable remarks,” that “unless misconduct on the part of the prosecution can be said to have influenced the jury’s verdict, reversal will not be required.” We believe from the record that if any alleged error was committed here it was adequately cured by the prompt admonition to the jury to disregard the comment.

Appellant also complains it was a misstatement of the law relating to entrapment, thereby requiring reversal of the conviction, when the prosecutor stated in closing argument that a government agent, to gain the confidence of a suspect, may make any statement which the suspect will accept and which will form a basis of trust whereby the suspect will commit the offense. The trial court subsequently properly and adequately instructed on the elements of entrapment. The law as outlined by the trial court and only that law is what the jury is presumed to have followed in its deliberations.

Hodges next asserts a question raised by the prosecutor as to why the defendant had not produced other recordings of the conversations made by the defendant himself constituted an impermissible comment on his silence in violation of his Fifth Amendment protections. While it is reversible error for the prosecutor or the trial judge to comment on the failure of a defendant to testify in his own behalf, we do not feel that was the situation here. Rather, in view of the extensive challenges to the accuracy of the recordings by defense counsel and all of the evidence in the case concerning tape recordings, the prosecutor’s remark in noting that no other recording had been shown to rebut the accuracy of the government’s recording was not error. See United States v. Cedar, 437 F.2d 1033 (9th Cir. 1971).

We are last confronted with the argument that the challenged tape recordings establish, as a matter of law, that Hodges was entrapped by the government agent into committing the offenses. He contends the conversations as reflected by the tapes clearly show the drug sales were not willingly made, but rather were made out of fear of threats and coercion associated with the name of another criminal which the agent had used to gain Hodges’ confidence. “Entrapment as a matter of law exists only when there is undisputed testimony making it patently clear that an otherwise innocent person was induced to commit the act complained of by the trickery, persuasion or fraud of a government agent.” United States v. Gibson, 446 F.2d 719, 721 (10th Cir. 1971). It is not improper for the government to set a fair trap for the potential violator so long as the inducement does not extend beyond the creation of an opportunity. The agent’s testimony concerning the first three transactions clearly shows appellant’s predisposition to commit the offenses charged. Entrapment as a matter of law not being established by the record, the question becomes one of fact for determination by the jury. Under the law and the evidence in the case, the jury was clearly justified in rejecting the asserted entrapment defense.

Affirmed.

      . Appellant was indicted under the Federal Food, Drug and Cosmetic Act of 1938 as amended in 1965 (Pub.L. 89-74) and 1968 (Pub.L. 90-639), the applicable statutes at the time of the alleged commission of the offenses, now repealed under § 701(a) of the Drug Abuse Prevention and Control Act of 1970. The subject offenses are now codified at 21 U.S.C. §§ 812, 841.

      . United States v. Bryant, 142 U.S.App. D.C. 132, 439 F.2d 642 (1971) ; Davis v. United States, 413 F.2d 1226 (5th Cir. 1969).

      . “We construe Rule 16(a) as giving defendant almost automatic right to his written or recorded statements or confessions.” United States v. Federman, 41 F.R.D. 339, 341 (S.D.N.Y.1967).

      . United States v. Crisona, 416 F.2d 107, 115 (2d Cir. 1969), cert. denied, DeLyra v. United States, 397 U.S. 961, 90 S.Ct. 991, 25 L.Ed.2d 253.

      . Boone v. Royal Indemnity Company, 460 F.2d 26 (10th Cir. 1972) ; Chapman v. United States, 346 F.2d 383 (9th Cir. 1965), cert. denied, 382 U.S. 909, 86 S.Ct. 249, 15 L.Ed.2d 161.

      . The following colloquy occurred between the trial court and defense counsel:
      THE COURT: . . . , Now, he is opening this up on cross-examination. This is going to open it up for the government if they have anything to the contrary on any conversation, you can understand that.
      MR. BAILEY [defense counsel] : I understand that.

      . See United States v. Walker, 421 F.2d 1298 (3d Cir. 1970), cert. denied, 399 U.S. 931, 90 S.Ct. 2261, 26 L.Ed.2d 799; Copes v. United States, 120 U.S.App.D.C. 234, 345 F.2d 723 (1964).

      . See United States v. Carson, 464 F.2d 424 (2d Cir. 1972), cert. denied, 409 U.S. 949, 93 S.Ct. 268, 34 L.Ed.2d 219; United States v. Skillman, 442 F.2d 542 (8th Cir. 1971), cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63; United States v. Carlson, 423 F.2d 431 (9th Cir. 1970), cert. denied, 400 U.S. 847, 91 S.Ct. 94, 27 L.Ed.2d 84.

      . See United States v. Wilshire Oil Company, 427 F.2d 969 (10th Cir. 1970), cert. denied, 400 U.S. 829, 91 S.Ct. 58, 27 L.Ed.2d 59; Bailey v. United States, 410 F.2d 1209 (10th Cir. 1969), cert. denied, Freeman v. United States, 396 U.S. 933, 90 S.Ct. 276, 24 L.Ed.2d 232.

      . United States v. Cooper, 464 F.2d 648 (10th Cir. 1972), cert. denied, 409 U.S. 1107, 93 S.Ct. 902, 34 L.Ed.2d 688; Ellis v. State of Oklahoma, 430 F.2d 1352 (10th Cir. 1970), cert. denied, 401 U.S. 1010, 91 S.Ct. 1260, 28 L.Ed.2d 546; Braley v. Gladden, 403 F.2d 858 (9th Cir. 1968).

      . United States v. Nolan, 416 F.2d 588 (10th Cir. 1969), cert. denied, 396 U.S. 912, 90 S.Ct. 227, 24 L.Ed.2d 187.

      . United States v. Hill, 469 F.2d 673 (10th Cir. 1972).

      . United States v. Gibson, 446 F.2d 719 (10th Cir. 1971).


source: Caselaw Access Project

license: Public Domain

text:
    Larry E. CLARK and J. Elliott Knoll, Plaintiffs-Appellants, v. UNITED BANK OF DENVER NATIONAL ASSOCIATION, a national banking association, et al., Defendants-Appellees.
    No. 72-1047.
    United States Court of Appeals, Tenth Circuit.
    May 22, 1973.

      Theodore M. Smith, Denver, Colo. (William E. Myrick, Denver, Colo., on the brief), for plaintiffs-appellants.
    Donald C. McKinlay, Denver, Colo. (Paul A. Jacobs, Denver, Colo., on the brief), for defendants-appellees United Bank of Denver National Association and United Banks of Colo., Inc.
    Before HILL, SETH and BARRETT, Circuit Judges.
   HILL, Circuit Judge.

Appellants Clark and Knoll appeal from an order granting defendants’ motion for summary judgment entered by the United States District Court for the District of Colorado. Appellants assert error by the trial court on three grounds: They contend their action was properly brought on an allegation of fraud in connection with the purchase or sale of a security; that the complaint contained allegations that the denial of their loan was done in furtherance of appellees’ intention to establish a monopoly, therefore the antitrust claims were properly stated; and, they challenge the use of summary judgment in an antitrust case.

Clark and Knoll became interested in acquiring The Poudre Valley National Bank (Poudre) in Fort Collins, Colorado. In search of financing with which to acquire approximately 81 percent of the capital stock of Poudre, appellants went to appellee United Bank of Denver National Association (United), a subsidiary of United Banks of Colorado, Inc. (Holding Company), a national bank holding company. The Holding Company had previously declined purchase of the stock in question due to doubts as to the approval of such acquisition by the Federal Reserve Board. Appellants’ loan application was refused by United following a period of negotiation. During the negotiation process, the Federal Reserve Board altered its policy, and it was eventually thought by the officers of the Holding Company that approval by the Federal Reserve Board could be obtained for its acquisition of the stock of Poudre. Negotiations by the Holding Company to acquire control of Poudre were initiated but were soon abandoned upon learning from the owner of the stock that other negotiations were being conducted for the stock. When these other negotiations terminated, the Holding Company was contacted by the owner and it ultimately purchased Poudre as another subsidiary. Roger Knight, Jr., is chairman of the board of United and president of the Holding Company. Norman Dean is a director of. the Holding Company and executive officer of another United Bank owned by the Holding Company. We have distinguished the roles of the Holding Company in the events preceding the filing of the complaint; however, in resolution of the issues raised in this appeal, we have considered the Holding Company and its wholly-owned subsidiary, United, as a single entity.

The basic premise of the action was that the Holding Company had negotiated for the purchase of Poudre while United was contemporaneously negotiating with Clark and Knoll on their loan application to purchase the stock, without disclosing this fact to them. In addition to alleging breach of fiduciary duties, fraud, unfair competition, and breach of warranty, the complaint also alleged fraud in violation of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10(b)-5 promulgated thereunder, 17 C.F.R. § 240.-10b-5. Clark and Knoll, in their complaint, also alleged violations of the Sherman and Clayton Acts, 15 U.S.C. §§ 1, 2 and 18.

The Securities Exchange Act of 1934, § 10(b), makes unlawful the use of any manipulative or deceptive device or contrivance in connection with the purchase or sale of any registered security. Rule/ 10(b)-5 further delineates the proscribed offense. Relying on the language contained in the statute, Clark and Knoll maintain that the loan which they sought from United was for the purpose of purchasing the Poudre stock; that it was fraudulent for United to conceal or fail to disclose the Holding Company’s interest in acquiring the Poudre stock while United was negotiating the loan with Clark and Knoll; and that therefore, within the broad terms of the statute, there was fraud in connection with the purchase or sale of a security.

In Knauff v. Utah Construction & Mining Co., 408 F.2d 958 (10th Cir. 1969), cert. denied, 396 U.S. 831, 90 S. Ct. 83, 24 L.Ed.2d 81, this Court stated at 961 that “[t]he words ‘purchase or sale’ must be defined broadly.” We. there held the term “purchase or sale”' to “include the exchange of shares which occurs as the result of a merger.” In that case we were aided by a tangible event involving the actual transfer of shares of stock. In this case there is no such tangible event. No stock was purchased or sold by Clark and Knoll. To construe loan negotiations for the purpose of purchasing stock to be “in connection with the purchase or sale of any security” would be an overly broad extension of that term. Therefore, we reject the claimed application of the Securities Exchange Act to this transaction.

Appellants advance three arguments in support of the alleged antitrust violations. The first involves an allegation of tying associated with approval of the loan. During the loan negotiations, United received from Clark and Knoll an oral promise to maintain an interest-free deposit in United of at least $1,500,000 in the event the loan was made. In this manner United’s position as correspondent bank would be established. Clark and Knoll contend this condition of the proposed loan agreement, that is, to maintain the substantial interest-free deposit, is a tying arrangement and a per se violation of the Sherman Act. We are first confronted by the failure of appellants to demonstrate the requisite market power over the tying product. The Bank Holding Company Act Amendments of 1970, particularly § 106(b), 12 U.S.C. § 1972, prohibits certain types of tying arrangements within the banking industry. The legislative history, however, indicates that the provision was not intended to interfere with the conduct of appropriate traditional banking practices. Included in these excepted banking practices was the maintenance of traditional correspondent relationships. In light of this, we cannot conclude that such a re-. quirement by United would be a per se violation as a prohibited tying arrangement. Also important in connection with this argument is the fact the complained about tying arrangement never became a part of a final agreement. It was only discussed and considered as a part of the negotiating process. In fact, in the extensive depositions the evidence is entirely lacking to show even that loan negotiations ever reached the point of a formal written application for a loan by appellants. Nor is there any evidence of an oral agreement between the parties concerning even any phase of a loan agreement. In fact, there were only conversations had between appellants and officers of Holding Company concerning the possibility of a loan.

The next argument advanced in support of the antitrust claims alleged in the amended complaint involves an alleged refusal to deal. Depositions which the trial court considered in making its decision clearly demonstrate that United had ample and valid reason to refuse the loan based on appellants’ failure to obtain adequate financial resources and their lack of adequate managerial qualifications in the area of financial institutions. There is nothing in the record considered by the trial court which would indicate the refusal by United was prompted by any other reason. Also, we find no relevant evidence which might even indicate or infer United’s denial of the loan was motivated by a desire on its part to further monopolize the relevant market. Again, we find no evidence in the extensive depositions and record sufficient to even infer a monopoly position with regard to a loan of this amount, nor that in denying the loan United did so out of a desire to further monopolize the relevant market. Such a showing is prerequisite to an asserted refusal to deal claim.

The third antitrust claim advanced by appellants is that of attempt to monopolize. In this context they urge that United’s acquisition of Poudre would give it 35 percent of the total assets of the area. The relevant facts are that Fort Collins, Colorado, a city located about 65 miles north of Denver, was serviced by four banks. The largest bank was The First National Bank of Fort Collins which was owned by Western Baneorporation, Inc., a California-based holding company. In 1967 this bank held approximately 57 percent of the area’s deposits. The Poudre bank was second largest, having approximately 35 percent of the area’s deposits, and was owned by Flour Mills of America, Inc. prior to its acquisition by the Holding Company. The two smaller banks divided the remainder of the area’s banking deposits substantially equally. The Holding Company of which United was a subsidiary did not at that time have any substantial banking contacts in Fort Collins. Its closest subsidiary bank was located at Greeley, Colorado, 30 miles southeast of Fort Collins.

Also in resolving this question the type of merger which would result from the acquisition of Poudre by the Holding Company has considerable importance. In United States v. First National Bank, 301 F.Supp. 1161 (S.D.Miss.1969), five recognized types of mergers are defined ánd described. The fourth of these five types is “a ‘geographic market extension merger’ which is a merger between two firms that produce the same product line but do so in separate geographic markets and are not direct rivals.” United States v. First National Bank, supra at 1190. In further describing this type of merger the court stated, “The geographic market extension merger does not alter the number of competitors that are in the relevant market or their specific locations and the same number of banking alternatives exist after the merger as before. Therefore, the present restraint upon undue use of market power which exists in this market is going to continue to exist for some time after this proposed merger. . . .” Id. The acquisition of Poudre by the Holding Company clearly would be within this definition and would be governed by antitrust factors relevant to this type of merger.

Market shares propounded by appellants are relevant only in horizontal mergers, that is, “a merger 'between two firms who are in direct competition, that is, producing the same product lines and operating in the same geographic markets.” United States v. First Nat’l Bank, supra. In a geographic market extension merger, our consideration of anticompetitive effect is limited “to an evaluation of whether it has the effect of removing a potential market entrant and to a consideration whether [the merging bank], which is not yet in the market, may still be a present competitive force, the presence of which deters ologopolistic practices, whereby its merger with a member of that market may eliminate competition in much the same way that a simple horizontal merger can.” United States v. First National Baneorporation, Inc., 329 F.Supp. 1003, 1011 (D.C.Colo.1971), aff’d per curiam by an equally divided Court without opinion, 410 U.S. 577, 93 S.Ct. 1434, 35 L.Ed.2d 507 (1973).

There appear to be three potential routes of influx into a geographic area by a potential market entrant bank or bank holding company: The first is to establish a bank de novo, that is, create a new bank as a subsidiary following approval by the regulatory agencies. The second method is to develop competition within a geographic area from a present banking location by building closer commercial relationships within that area. The third alternative available to the potential entrant is establishment of a branch bank. In a deposition exhibit, the Board of Governors of the Federal Reserve Board, in a statement as part of its order approving the Holding Company’s acquisition of the Poudre stock, determined the banking needs of the community appeared to be adequately served by the four banks located there, and also that the development of closer commercial relationships between Fort Collins and Greeley, the site of the Holding Company’s closest subsidiary bank, appeared unlikely due to the existing highway structure in the intermediate area. The third potential route of influx, that of establishing a branch bank, is not available to appellees due to statutory prohibition. In addition to these objective factors which make the Holding Company’s influx into the Fort Collins area impractical, the internal documents of the Holding Company consistently show their intention to enter the Fort Collins banking market only by acquiring an existing bank as a subsidiary.

Appellants lastly challenge the use of summary judgment in an action involving antitrust allegations. While it is true that summary judgment is not favored in antitrust cases, we feel, in view of the extensive depositions and deposition exhibits available to the trial court, that summary judgment was proper in this situation.

In view of our disposition of this case, we make no determination of appellees’ challenge that Clark and Knoll lack standing to assert a potential competition claim.

The trial court’s order of summary judgment and dismissal is affirmed.

      . 17 C.F.R.. § 240.10b-5 provides: “It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
      (a) To employ any device, scheme, or artifice to defraud,
      (b) To make any untrue statement of a material fact or to omit to state a maternal fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
      (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person,
      in connection with the purchase or sale of any security.”

      . Fortner Enterprises v. United States Steel Corp., 394 U.S. 495, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969).

      . “In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.” United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919).

      . United States v. Phillipsburg Nat’l Bank, 399 U.S. 350, 90 S.Ct. 2035, 26 L.Ed.2d 658 (1970) ; United States v. Third Nat’l Bank, 390 U.S. 171, 88 S.Ct 882, 19 L.Ed.2d 1015 (1968) ; United States v. First Nat’l Bank & Trust Co., 376 U.S. 665, 84 S.Ct. 1033, 12 L.Ed.2d 1 (1964) ; United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963) ; United States v. Provident Nat’l Bank, 280 F.Supp. 1 (E.D.Pa. 1968) ; United States v. Manufacturers Hanover Trust Co., 240 F.Supp. 867 (S.D.N.Y.1965).

      . See also United States v. Falstaff Brewing Corp., 410 U.S. 526, 93 S.Ct. 1096, 35 L.Ed.2d 475 (1973) ; United States v. Idaho First Nat’l Bank, 315 F.Supp. 261 (D.C.Idaho 1970) ; United States v. First Nat’l Bank, 310 F.Supp. 157 (D.C.Md. 1970) ; United States v. First Nat’l Bank, 301 F.Supp. 1161 (S.D.Miss.1969) ; United States v. Crocker-Anglo Nat’l Bank, 277 F.Supp. 133 (N.D.Cal.1967).

      . See 12 U.S.O. § 36(c) ; 1963 C.R.S. § ' 14-3-1.

      . Semite v. Enid Automobile Dealers Association, 456 F.2d 1361 (10th Cir. 1972) ; Food Basket, Inc. v. Albertson’s, Inc., 383 F.2d 785 (10th Cir. 1967).

      . Depositions available to the court included those of both Clark and Knoll, Roger D. Knight, Jr., Norman M. Dean, Kent Olin, a loan officer of United Bank of Denver, and' Jack N. Greenman, the president of Flour Mills of America, Inc.


author: BRODERICK, District Judge.

text:
    Catherine KOBER, Plaintiff-Appellant, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Appellee.
    No. 72-1133.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 13, 1973.
    Decided May 25, 1973.

      Daniel M. Berger, Berger & Kapetan, Pittsburgh, Pa., for plaintiff-appellant.
    John G. Wayman, Eric P. Reif, Reed, Smith, Shaw & MeClay, Pittsburgh, Pa., for defendant-appellee.
    Ramon V. Gomez, E. E. O. C., Washington, D. C., for amicus curiae.

      Before VAN DUSEN and ADAMS, Circuit Judges and BRODERICK, District Judge.
   OPINION OF THE COURT

BRODERICK, District Judge.

The principal issue before the Court on this appeal is whether the district court should have granted back pay and injunctive relief in an action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. in which the plaintiff-appellant claimed that she was discriminated against in her employment because of her sex. The district judge, in an action tried without a jury, based his refusal to award back pay on Westinghouse’s reliance on the provisions of the Pennsylvania Women’s Labor Law 43 P.S. § 101 et seq.

The judgment of the district court that the plaintiff is not entitled to back pay and injunctive relief is affirmed by this Court. As hereinafter discussed, the law is now clear that the district court was'correct in its determination that the award of back pay and injunctive relief is discretionary; and we have found that there was no abuse of discretion in this case. However, we do not agree with one of the reasons set forth by the district court judge as a basis for denying back pay to the plaintiff. The district court found that Westinghouse’s violation of Title VII of the Civil Rights Act of 1964, section 706(g), was not “intentional” because Westinghouse’s refusal to promote appellant was based upon a state statute which prohibited her from working the hours required by the job. , A denial of back pay on the ground that such a violation is not intentional is contrary to the recent decisions which have been handed down since the district court made its determination in this matter.

In support of their position that the district court improperly denied back pay and injunctive relief, plaintiff-appellant and the Equal Employment Opportunity Commission, as amicus curiae, (hereinafter EEOC), have four principal contentions: (1) the district court erred when it found that Westinghouse did not intentionally engage in an unlawful employment practice in violation of section 706(g) of Title VII, 42 U.S.C. § 2000e-5(g) when Westinghouse failed to promote plaintiff-appellant in reliance on the hour limitations imposed by section 103(a) of the Pennsylvania Women’s Labor Law, 43 P.S. § 103(a); (2) that an award of back pay is required by the decisions of the Fourth and Seventh Circuits in Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971), petition for cert, dismissed, 404 U.S. 1006, 1007, 92 S.Ct. 573, 30 L.Ed.2d 655, and Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969); (3) that even if an award of back pay is discretionary, the district court abused its discretion in failing to award back pay, and, finally, (4) that injunctive relief should have been awarded by the lower court.

Plaintiff-appellant, Catherine Kober, was first employed by defendant, Westinghouse Electric Corporation, appellee herein, in 1944 and on January 1, 1957 she was promoted to the computer operations department of Westinghouse’s Sharon, Pennsylvania, plant. In 1961 she was again promoted to the position of peripheral machine operator. The normal progression of employment for Miss Kober would have been to a job as a Class B computer console operator and then to a position as a Class A computer console operator. If an employee performs satisfactorily in the peripheral machine operator position, the promotion to a Class B computer console operator is virtually automatic in accordance with seniority and the existence of a vacancy, and then if the work in Class B is satisfactory, the promotion to Class A also is virtually automatic in accordance with seniority and the existence of a vacancy. A usual period before promotion from a peripheral machine operator to a Class B computer console operator is one year and a similar period of time intervenes between the Class B and Class A promotion. Miss Kober had the most seniority since 1957, performed satisfactorily in the peripheral machine operator job and would have been appointed to the Class B computer console operator position by the end of 1962 and to the Class A job by the end of 1963. Westinghouse, however, did not promote her to the Class B computer console operator job and thereafter to Class A because under the scheduling procedures of the computer operations division she would have been required to work in excess of five continuous hours without a thirty minute meal or rest break and to work in excess of six days and forty-eight hours a week, and 10 hours a day in violation of the Pennsylvania Women’s Labor Law, 43 P.S. §§ 103(a) and 107. Miss Kober had made frequent requests for promotion prior to the effective date of Title VII (July 2, 1965) but was refused promotion by Westinghouse because of the provisions of the aforementioned Pennsylvania statute. Following the effective date of Title VII, a Class B computer console position became vacant but she was not promoted to it, again based on Westinghouse’s reliance on the Pennsylvania statute.

On December 2, 1965 the EEOC promulgated regulations concerning the relationship between Title VII and state statutes protecting women which were preceded by the following policy statement:

Probably the most difficult area considered in these guidelines is the relation of Title VII to state legislation designed originally to protect women workers. The Commission cannot assume that Congress intended to strike down such legislation. 30 Fed.Reg. 14927 (1965).

The regulations provided:

(c) The Commission does not believe that Congress intended to disturb such laws and regulations which are intended to, and have the effect of, protecting women against exploitation and hazard. Accordingly, the Commission will consider limitations or prohibitions imposed by such state laws or regulations as a basis for application of the bona fide occupational qualification exception. However, in cases where the clear effect of a law in current circumstances is not to protect women but to subject them to discrimination, the law will not be considered a justification for discrimination. So, for example, restrictions on lifting weights will not be deemed in conflict with Title VII except where the limit is set at an unreasonably low level which could not endanger women.
(1) An employer, accordingly, will not be considered to be engaged in an unlawful practice when he refuses to employ a woman in a job in which women are legally prohibited from being employed or which involve duties which women may not legally be permitted to perform because of hazards reasonably to be apprehended from such employment.
(2) On the other hand, an employer will be deemed to have engaged in an unfair employment practice if he refuses to employ or promote a woman in order to avoid providing a benefit for her required by law — such as minimum wage or premium overtime pay.
(3) Where state laws or regulations provide for administrative exceptions, the Commission will expect an employer asserting a bona fide occupational qualification pursuant to this paragraph to have attempted in good faith, to obtain an exception from the agency administering the state law or regulation. 29 C.F.R. § 1604.1(c)(1966).

The following statement of the EEOC of February 23, 1968 appropriately describes the subsequent course of EEOC policy:

[O]n August 19, 1966, the Commission adopted a policy with respect to the processing of cases involving State protective legislation. The Commission stated, in substance, that it would not make determinations on the merits in cases which present a conflict between the Act and State protective legislation where administrative exceptions under State law were unavailable; that in such cases the Commission would advise the charging parties of their right to bring suit within 30 days under section 706(e) of the Act to secure a judicial determination as to the validity of the State law or regulation; and that the Commission reserved the right to appear as amicus curiae in such cases to present its views as to the proper construction of the Act.
Present Commission action. The Commission rescinds the August 19, 1966, policy statement and reaffirms the Guidelines published in the Federal Register on December 2, 1965. The rescission of the August 19 policy statement means that in cases where the effect of State protective legislation appears to be discriminatory rather than protective, the Commission will proceed to decide whether that legislation is superseded by the Act. In such situations the Commission expects to solicit the views of the relevant State authorities in respect to the purpose and effect of the State legislation. 33 Fed.Reg. 3344 (1968).

On February 13, 1967 another vacancy occurred in a Class B computer console operator job and Miss Kober requested the position. She was initially told by Westinghouse that it would apply for an exception from the state with reference to overtime hours and working without a break. About one week later, however, she was advised that Westinghouse’s industrial relations department would not write the necessary letter requesting an exception. Thereafter a male employee with less seniority than plaintiff was given the Class B computer console job and one year later he was elevated to a Class A job.

On March 27, 1967, following Westinghouse’s refusal to promote her, she filed a charge of discrimination under the Act with the EEOC. A finding of reasonable cause was issued on February 15, 1968 on the ground that Westinghouse had not sought an administrative exception pursuant to Rule G-19 from the State Act. Subsequently, during the conciliation stage of the proceedings the conciliator suggested that Westinghouse apply to the Commonwealth of Pennsylvania for an administrative exception to the State Act pursuant to Rule G-19 of the Pennsylvania Industrial Board, which rule became effective on April 23, 1966. The Secretary of Labor and Industry in a letter dated April 17, 1968 authorized Westinghouse to permit Miss Kober to work, as long as she consented, but specifically provided that Westinghouse could not require her to work in violation of the provisions of the Act. On May 27, 1968 plaintiff wrote a letter to the Department of Labor and Industry stating that she was willing to work the same overtime as the men on the Code 12 job. In a letter of June 27, 1968 the Secretary of Labor and Industry advised Westinghouse that plaintiff had specified her willingness to work these extended hours in her letter of May 27, 1968 and concluded:

We trust the foregoing explanation, together with Miss Kober’s written compliance to the extended hours, and our authorization for the elimination of the 30-minute rest or meal period, has cleared the way for Miss Kober to assume the position of computer console operator.

On the same day, the Secretary of Labor and Industry wrote a letter to Westinghouse allowing it to schedule plaintiff “on an eight hour continuous shift basis without a thirty minute meal or rest period after five hours of work.” On October 14, 1968-the EEOC notified her that conciliation had failed and of her right to bring suit for relief under the Act within thirty days. Hence, this lawsuit was commenced by the plaintiff on November 13, 1968. While the suit was pending, in August 1969, the EEOC finally arrived at a position that the conflicting state laws and regulations “have ceased to be relevant to our technology or to the expanding role of the female worker . . . ” “Accordingly, the Commission has concluded that such laws and regulations conflict with Title VII of the Civil Rights Act of 1964 and will not be considered a defense to an otherwise established unlawful employment practice. . . .”29 C.F.R. § 1604.1(b)(1970). Thereafter, here in Pennsylvania, the state’s Attorney General concluded that the conflicting provisions of the Pennsylvania Women’s Labor Law had been repealed by implication by the adoption of the Amendment to the Pennsylvania Human Relations Act of July 9, 1969 (43 P.S. § 951 et seq.), which barred discrimination in employment on the basis of sex in language similar to that of Title VII. Following this opinion, Westinghouse declared that it would henceforth regard the Pennsylvania Women’s Labor Law as repealed, and subsequently on April 1. 1970 Miss Kober was promoted to the first available vacancy in a Class B computer console job.

The district court, although concluding that Title VII had in fact superseded the Pennsylvania Women’s Labor Law, and although finding that Miss Kober had in fact suffered wage loss by her failure to be promoted, refused to award back pay or injunctive relief on the basis that defendant had not “intentionally” engaged in an unlawful employment practice under Section 706(g), 42 U.S.C. 2000e-5(g), because of the barrier of the conflicting state law. However, the district court also concluded that the award of back pay was discretionary and concluded that back pay was inappropriate in the circumstances of this case. The Court, however, did grant a reasonable counsel fee to Miss Kober.

We do not agree with the trial court’s position that Westinghouse did not intentionally engage in an unlawful employment practice in violation of Section 706(g) of Title VII, 42 U.S.C. § 2000e-5(g) when it failed to promote Miss Kober to the Class B computer console operator position because of her sex, based on its reliance on the conflicting provisions of the Pennsylvania Women’s Labor Law, 43 P.S. § 103(a). In situations where employers did not rely on state statutes allegedly in conflict with Title VII, the Fourth, Fifth, Seventh, Ninth, and Tenth Circuits have held that the intentional unfair employment practices included in Section 706(g) are those practices which are engaged in deliberately • rather than accidentally. Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002, 1006 (9th Cir. 1972); Rosenfeld v. Southern Pacific Co., 444 F.2d 1219, 1227 (9th Cir. 1971); Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1201 (7th Cir. 1971) cert. den. 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971); Robinson v. Lorillard Corporation, 444 F.2d 791, 796 (4th Cir. 1971); petition for cert. dismissed, 404 U.S. 1006-1007, 92 S.Ct. 573, 30 L.Ed.2d 655; Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245, 250 (10th Cir. 1970), cert. den. 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237; Local 189, United Papermakers and Paperworkers v. United States, 416 F.2d 980, 996 (5th Cir. 1969), cert. den. 397 U.S. 919, 90 S. Ct. 926, 25 L.Ed.2d 100 (1970). See Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

And the Fifth, Sixth and Ninth Circuits have adopted this line of reasoning and have concluded that in cases where an employer has relied on statutes allegedly in conflict with Title VII that there was an intentional violation of Section 706(g), Manning v. General Motors Corp., 466 F.2d 812, 815-816 (6th Cir. 1972), cert. den. 410 U.S. 946, 93 S.Ct. 1366, 35 L.Ed.2d 613; Schaeffer v. Yellow Cabs, Inc., supra, 462 F.2d at 1006; LaBlanc v. Southern Bell, 460 F.2d 1228 (5th Cir. 1972), aff’g per curiam 333 F.Supp. 602 (E.D.La.1971); Rosenfeld v. Southern Pacific Co., supra, 444 F.2d at 1227; contra; Garneau v. Raytheon Co., 341 F.Supp. 336, 338 (D.Mass.1972); Ridinger v. General Motors Corp., 325 F.Supp. 1089, 1099 (S.D.Ohio 1971); rev'd in light of Manning, supra, 474 F.2d 949 (6th Cir. Oct. 13, 1972); Richards v. Griffith Rubber Mills, 300 F. Supp. 338, 341 (D.Ore.1969).

We conclude that it is now the law that discrimination based on reliance on conflicting state statutes is an intentional unfair employment practice. Intentional unfair employment practices are those engaged in deliberately and not accidentally. No wilfullness on the part of the employer need be shown to establish a violation of Section 706(g).

BACK PAY NOT MANDATORY

We now turn to the issue of whether the district court incorrectly denied Miss Kober back pay. Appellant and the EEOC argue that an award of back pay is required by the decisions of the Fourth and Seventh Circuits in Robinson v. Lorillard Corp., supra, and Bowe v. Colgate Palmolive Co., supra.

In Robinson v. Lorillard Corp., a class action pursuant to Title VII, the district court’s award of back pay to the members of a class who had been the victims of an intentional unfair employment practice as a result of a racially discriminatory seniority system was challenged as an abuse of discretion because of the unsettled state of the law and because of the absence of a specific intent to discriminate. The Fourth Circuit rejected the claim that the trial judge abused his discretion by awarding back pay and said:

back pay is not a penalty imposed as a sanction for moral turpitude; it is compensation for the tangible economic loss resulting from an unlawful employment practice. Under Title VII the plaintiff class is entitled to compensation for that loss . . . Id., 444 F.2d at 804.

Bowe v. Colgate-Palmolive Co. was also a Title VII class action suit challenging, inter alia, that a system of layoffs was discriminatory in that the layoffs were based on separate male and female seniority lists. The district court found, inter alia, that the seniority system was discriminatory and enjoined the employer from using it and awarded back pay only to those members of the class who had filed charges of discrimination with the EEOC. On appeal, the Seventh Circuit held that the district court erred in denying back pay to the members of the class who had not filed claims with the EEOC. The Seventh Circuit said:

The clear purpose of Title VII is to bring an end to the proscribed discriminatory practices and to make whole, in a pecuniary fashion, those who have suffered by it. Id., 416 F.2d at 720.
* -X- * -X- -X- *
42 U.S.C. § 2000e-5(g) requires that if the court finds an intentional unlawful employment practice, it may enjoin the practice “and order such affirmative action as may be appropriate.” This grant of authority should be broadly read and applied so as to effectively terminate the practice and make its victims whole. Id., at 721.

The Fourth Circuit in Moody v. Albemarle Paper Co., decided since the instant case was argued, held that the award of back pay is required by Title VII to the members of a class who are victims of racial discrimination and who succeed in obtaining an injunction unless special circumstances render such an award unjust. The majority opinion reversed the district court and sent the case back to determine an appropriate award of back pay on the ground that there were no special circumstances in the case.

We must admit that these cases from the Fourth Circuit and Seventh Circuit severely limit the circumstances under which a trial judge may deny back pay. However, on this record we are inclined to follow the more persuasive reasoning of the Sixth Circuit in Manning v. General Motors Corp., supra, 466 F.2d at 815-816; the Ninth Circuit in Schaeffer v. Yellow Cabs, Inc., supra, 462 F.2d at 1006-1008; the Fifth Circuit in LeBlanc v. Southern Bell, supra; and the dissenting opinion of Judge Boreman of the Fourth Circuit in Moody v. Albemarle, supra.

In LeBlanc v. Southern Bell, a Title VII action alleging sex discrimination, the district court was presented with facts almost identical to those in the instant case. There the employer refused to promote the female plaintiffs because of a Louisiana Statute forbidding employment of females for more than eight hours a day, and more than forty-eight hours or six days in any consecutive seven-day period. The district court found an intentional violation of Title VII but declined to issue injunctive relief or back pay because of the employer’s good faith and because the employer’s practices were compelled by a state law in conflict with Title VII. The Fifth Circuit affirmed per curiam by holding that the plaintiffs had failed to sustain their burden of showing that the district court had abused its discretion in determining to award back pay. Similarly, in Manning v. General Motors Corp., a Title VII class action suit for sex discrimination, the district court declined to issue either injunctive relief or back pay to female employees who were denied promotion based on the employer’s good faith reliance on Ohio legislation limiting, among other things, the hours of female employment. The Sixth Circuit affirmed, finding “under all the circumstances of this case we cannot conclude that the District Judge abused his discretion in denying back pay to these plaintiffs.” Id. 466 F.2d at 816. In Schaeffer v. Yellow Cabs, Inc., supra,, also a Title VII suit based on sex discrimination, the district court refused to award injunctive relief or back pay to the female employees who had been denied promotion because of California’s female protective legislation. The Ninth Circuit treated the denial of back pay as a matter for the discretion of the district court, saying:

A court may enjoin and award damages, but should only order affirmative action, such as back pay, when such relief is “appropriate.” In a case of damages of this nature, a court must balance the various equities between the parties and decide upon a result which is consistent with the purpose of the Equal Employment Opportunities Act, and the fundamental concepts of fairness. Id., 462 F.2d at 1006.
* * * * * -»
Rather than drawing any hard and fast rule concerning the defense of good faith reliance on a state statute, we believe that in each case the merits of the plaintiff’s claim and the public policy behind it must be balanced against the hardship on a good-faith employer. Id. at 1007.

The Ninth Circuit, however, reversed the district court holding that it had abused its discretion on the ground that an employer should not be entitled to rely on a state female protective statute which had been previously declared unconstitutional by an United States District Court in another district in the same state.

Section 706(g) of Title VII provides: If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or without back pay. 42 U.S.C. § 2000e-5(g). (Emphasis added.)

The statute says that the court may order such affirmative action as may be appropriate, with or without back pay. It is our determination that this language clearly leaves the award or denial of back pay to the discretion of the district court, to be exercised in the light of all the circumstances of each case.

NO ABUSE OF DISCRETION

The only issue, therefore, remaining is whether the lower court abused its discretion in denying injunctive relief and back pay. No basis has been presented on which this court could come to a determination that the trial judge abused his discretion in denying back pay in a situation where he finds that an employer followed the applicable provisions of state law prior to a judicial determination of its invalidity. This is exactly what the Fifth, Sixth, and Ninth Circuits determined in Manning, supra,, 466 F.2d at 816, Schaeffer, supra, 462 F.2d at 1007, f. n. 42, Le Blanc, supra, 460 F.2d at 1229, and Rosenfeld, supra, 444 F.2d at 1227. In the Schaeffer case, the Ninth Circuit held it was an abuse of discretion for the district court to deny back pay in view of the fact that there was a prior judicial determination of the invalidity of the California statutes in that case. We find no abuse of discretion here, as state statutes, like federal ones, are entitled to a presumption of constitutionality until their invalidity is judicially determined. Davies Warehouse Co. v. Bowles, 321 U. S. 144, 153, 64 S.Ct. 474, 88 L.Ed. 635 (1944); Manning, supra, 466 F.2d at 816. Westinghouse did not have the benefit of any judicial or even quasi-judieial determination of the validity of the Pennsylvania statutes until the opinion of the Attorney General on November 14, 1969 and the lower court opinion in this case on March 29, 1971. Furthermore, Miss Kober was promoted to the first available vacancy in April of 1970, after the EEOC finally made a determinative ruling on the validity of conflicting state statutes on August 19, 1969 and after the Attorney General of the Commonwealth of Pennsylvania concluded on November 14, 1969 that the female protective provisions were implicitly repealed by the adoption of the amendment to the Pennsylvania Human Relations Act of July 9, 1969, 43 P.S. § 951 et seq. We certainly cannot find any abuse of discretion by the lower court. As pointed out by the District Court Judge, the employer was caught in a dilemma between the conflicting provisions of state and federal law and acted to end the discrimination against Miss Kober when the first vacancy occurred after the Attorney General ruled that the conflicting provisions of the state law had been implicitly repealed. Westinghouse promoted Miss Kober almost twelve months prior to the judicial determination of the lower court in the instant case that the state statutes were invalid.

Appellant specifically contends that the lower court abused its discretion in refusing to award back pay from April 17, 1968 when the Commonwealth Department of Labor and Industry granted an exception which they contend permitted Westinghouse to promote Miss Kober without running afoul of the Pennsylvania Women’s Labor Law. Westinghouse applied for an exception from the provisions of 43 P.S. § 103(a) asking it be permitted to require Miss Kober to work approximately nine to sixteen hours a day, forty-eight to eighty hours a week, and seven days a week, all of which the statute prohibited in the following language:

(a) Except as hereinafter provided, no female eighteen (18) years of age or older shall be employed or permitted to work in, or in connection with, any establishment for more than six (6) days in any one week or more than forty-eight (48) hours in any one week, or more than ten (10) hours in any one day.
Where the strict application of the schedule of hours, provided for by this section, imposes an unnecessary hardship and violates the intent and purpose of this act, the Secretary of Labor and Industry, with the approval of the Industrial Board, may make, alter, amend, and repeal, general rules and regulations prescribing variations from said schedule of hours. .
43 P.S. § 103(a).

The Secretary of Labor and Industry in a letter dated April 17, 1968 authorized Westinghouse to permit Miss Kober to work hours in excess of those permitted by the State statute, as long as she consented, but specifically provided in paragraph 4 of the letter as follows:

Any action to require or coerce women to work in excess of ten hours a day, forty-eight hours a week, or six days a week will be cause for immediate revocation of this authorization.

This language says that Westinghouse could not require Miss Kober to work hours which would be in violation of the Act. Miss Kober contends, however, that a subsequent letter from the Secretary of Labor and Industry, dated June 27, 1968, makes it clear that an exception had been granted which permitted Westinghouse to promote her to the position in question. The Secretary’s letter contains this language:

The language used in paragraph 4 of the Granting Letter reiterates Section 3 of the Women’s Labor Law. However, before such authorization is granted, we request the signatures of the women involved, signifying their compliance with extended hours. Miss Catherine Kober has so specified her willingness to work these extended hours in her letter of May 27, 1968 (copy enclosed).
* * * * -x- *
We trust the foregoing explanation, together with Miss Kober’s written compliance to the extended hours, and our authorization for the elimination of the 30 minute rest or meal period, has cleared the way for Miss Kober to assume the position of Computer Console Operator.

While this letter sounds broad in its scope it does not change the language set forth in the Secretary’s letter of April 17, 1968 that Westinghouse could not require Miss Kober to work in excess of the hour limits in the Act. In reaching this conclusion, we call attention to Regulation G-19 of the Industrial Board pursuant to which the Secretary issued the exception:

In order to assure female employees in Pennsylvania equal employment opportunities with male employees, in those situations where because of production, service or other requirements and because of a limited supply of trained or skilled employees, an employer establishes for an indefinite period a work schedule in excess of 10 hrs. a day or 48 hrs. a week, or where the nature of the operations creates a periodic need for schedules in excess of 10 hrs. a day, 48 hrs. a week or 6 days a week, female employees over 18 years of age may be permitted, but shall not be required to work in excess of the statutory limitations on hours of work specified in the Women’s Labor Law, provided that a written request from the employer is submitted to the Secretary of Labor and Industry who may after investigation authorize an exception for female employees from the hours limitations of the Women’s Labor Law if he determined that such exception is needed to provide equal employment opportunities.

In our opinion, G-19 does not authorize the Secretary to grant an exception which would have insulated Westinghouse from the provisions of the Act in this case. The limited exception which Miss Kober obtained would have been unfair to Westinghouse in that she could not have been required to work the longer hours specified in the job description. The lower court found that the exception was not “clear cut” and further found that it was doubtful whether the Secretary of Labor and Industry had the power to grant a clear-cut exception. And we agree with this analysis of the so-called “exception” by the lower court. Although on this record some members of the panel might have granted back pay for the period after August 1969, when the EEOC ruled that the Pennsylvania Women’s Labor Law was ineffective since in conflict with Title VII of the 1964 Civil Rights Act, we find no basis on which to hold that the lower court abused its discretion in failing to award back pay based on the alleged exception from April 17, 1968 until April 1, 1970, or for any other period prior to April 1, 1970.

INJUNCTIVE RELIEF

Plaintiff-appellant’s argument that the lower court incorrectly denied injunctive relief is equally without merit, as injunctive relief under the statute is likewise discretionary and the Court finds no abuse of discretion here. We agree with the conclusion of the Sixth Circuit in Manning, supra at 815, that there is no abuse of discretion in refusing to grant “an injunction which could have done no more than restrain the defendant . . . from doing that which it had not been doing for more than a year before the date the District Court Order was entered.”

The judgment of the district court will be affirmed.

      . Manning v. General Motors Corp., 466 F.2d 812, 815-816 (6th Cir. 1972) cert. den. 410 U.S. 946, 93 S.Ct. 1366, 35 L. Ed.2d 613; Schaeffer v. Yellow Cabs, Inc., 462 F.2d 1002, 1006 (9th Cir. 1972) ; Le Blanc v. Southern Bell, 460 F.2d 1228, 1229 (5th Cir. 1972) ; cert. den. 409 U.S. 990, 93 S.Ct. 320, 34 L. Ed.2d 257; Rosenfeld v. Southern Pacific Co., 444 F.2d 1219, 1227 (9th Cir. 1971).

      . Opinion of the Attorney General of the Commonwealth of Pennsylvania to the Pennsylvania Secretary of Labor and Industry, Nov. 14, 1969.

      . Section 706(g), 42 U.S.C. 2000e-5(g) provides, in pertinent part:
      (g) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in an unlawful employment practice and order such affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or without back pay.

      . Moody v. Albemarle Paper Co., 474 F.2d 134 (4th Cir. 1973).

      . The district court found that “[t]here is no dispute that the employment of plaintiff in the position sought would have violated the terms of [the Pennsylvania Women’s Labor Law]” (469 of 325 F. Supp.). Also the record contains this undisputed language from an August 23, 1968 letter of counsel for defendant to the EEOC Conciliator (33a-34a) :
      “In our meeting of Thursday, March 14, 1968, the requirements of the Computer Console Operator’s position were explained to you. It was explained that the position, by its very nature, would require the operator to work well in excess of the hours specified in the statute. The manager of the department documented for you the reasons why the operator would be required to work overtime on a constant basis, and he related to you that past experience had shown that the operator could be required to work from as little as nine (9) to as many as sixteen (16) hours per day, and from as little as forty-eight (48) to as many as eighty (80) per week.
      “During our meeting, you did not dispute that the foregoing accurately represented the operational requirements of the job.
      “In addition, it was pointed out to you that local management would have to possess the authority over the employee assigned to this position to make the performance of the above number of hours of work mandatory, a right it possesses with respect to male employees and with respect to female employees up to the statutory maximum. It was explained that on this operation in particular, local management could not be placed in a position of having the performance of overtime work operational with the employee, a situation that would arise if Miss Kober was placed on the position under the prohibition contained in Pennsylvania law.”


author: GOLDBERG, Circuit Judge:

text:
    Leo BIANCHINI and Joseph (Joe) Omes, Plaintiffs-Appellants, v. HUMBLE PIPE LINE COMPANY, Defendant-Appellee.
    No. 72-2551.
    United States Court of Appeals, Fifth Circuit.
    April 17, 1973.
    Rehearing and Rehearing En Banc Denied June 15, 1973.

      Plauche F. Villere, Jr., New Orleans, La., for Bianchini.
    Frank W. Roccaforte, Joseph R. Raggio, John H. Taylor, Baton Rouge, La., for Omes.
    Murphy Moss, William R. Forrester, Jr., New Orleans, La., for defendant-appellee.
    Before RIVES, GOLDBERG and MORGAN, Circuit Judges.
   GOLDBERG, Circuit Judge:

This is an appeal from the involuntary-dismissal of consolidated diversity actions that arose out of a Í969 marine oil spill. Appellants are oyster farmers who sought to recover against appellee, the Humble Pipe Line Company, for damages to oysters, oyster reefs, and oyster leases resulting from oil emanating from one of Humble’s twelve-inch pipelines submerged in Barataría Bay off Saturday Island in Plaquemines Parish, Louisiana. Humble admitted the spillage had occurred but alleged that the spill was caused solely by an “unknown marine vessel” coming into contact with and rupturing the pipeline. The case was tried to the court, and at the conclusion of appellants’ case, the United States District Judge entered comprehensive findings of fact and conclusions of law and dismissed the actions pursuant to Rule 41(b), F.R.Civ.P. We affirm.

Appellants seek to prevail under any of three alternative theories of liability, which they label (1) strict liability, (2) res ipsa loquitur, and (3) negligence. Before analyzing the trial court’s treatment of these theories, we reiterate that this is a non-jury case in which extensive findings of fact were entered below. Accordingly, any review of the application of those theories of liability must take place within the context of those factual findings, and our first inquiry must be whether those findings can withstand appellate review.

The court below specifically found, inter alia:

(1) On December 5, 1969, an oil slick occurred in the area of Saturday Island in Barataria Bay;

(2) Investigation proved that the oil slick was coming from the Humble pipeline;

(3) The pipe itself was in excellent condition;

(4) The pipeline had been constructed in accordance with a permit issued by the United States Army Corps of Engineers in 1955 and had been maintained in conformity with all requirements and specifications of the Corps;

(5) The pipeline carried only crude oil and a mixture of distillate;

(6) The leak occurred at a point near a passageway or unofficial channel that no prudent boat operator would have navigated with a vessel having a draft in excess of six feet;

(7) A 110-foot section of the pipe was damaged with parallel creases, two of which contained small ruptures through which the oil escaped;

(8) The oil leak resulted from the ruptures, which were in turn caused solely by contact with protrusions from an unknown marine vessel that plowed the mud cover off of the pipeline; and

(9) The oil leak did not result from any negligence on the part of Humble in the placement, maintenance, or operation of the pipeline.

Thus, the District Judge concluded, albeit not in haec verba, that the unknown marine vessel constituted an intervening and superseding cause of the oil spill, i. e., that the damages were in no way caused or contributed to by any negligence on the part of Humble but were caused solely by the intervening force.

Findings of fact are measured on appellate review by the “clearly erroneous” standard. Rule 52(a), F.R.Civ.P. See also McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20; United States v. United States Gypsum Co., 1948, 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746. We have previously said of this test,

“The question is not simply whether the reviewing court would have found otherwise but whether the trial court could permissibly find as it did. The reviewing court should upset a finding only when it ‘is convinced on the whole record that the finding does not reflect the truth and right of the case.’ Wright, Federal Courts § 96, at 432.”

Movible Offshore, Inc. v. M/V Wilken A. Falgout, 5 Cir. 1973, 471 F.2d 268, 271.

Our scrutiny of the instant record does not leave us “with the definite and firm conviction that a mistake has been committed.” See United States v. United States Gypsum Co., 1948, 333 U.S; 364, 395, 68 S.Ct. 525, 542, 92 L.Ed.2d 746, 766; Volkswagen of America, Inc. v. Jahre, 5 Cir. 1973, 472 F.2d 557 (Jan. 30, 1973). To the contrary, we find in the instant record plenteous evidence from which the trial judge could permissibly make these findings, and we reject any suggestion that these fact-findings were “clearly erroneous.”

Operating within the framework of the facts as found by the trial judge, we turn now to a consideration of the trial court’s disposition of the three theories of recovery advanced by appellants. First, appellants urge that this is a case in which Louisiana would apply a rule of “strict” or “absolute” liability and hold Humble liable for the damages caused by the escape of its oil regardless of negligence. Seeking to establish a liability analogous to that created in the classic case of Rylands v. Fletcher, appellants insist that the Louisiana cases applying Articles 667 through 669 of the Louisiana Civil code require that “liability without fault” be imposed here. In support of this theory, appellants argue that the defendant’s activity need not be “ultra-hazardous,” that the defendant’s lack of negligence is irrelevant, and that the presence of any “intervening cause” does not bar liability. In reply, Humble argues that “liability without fault” is not a proper theory by which to hold oil companies liable to oyster-men, that in any event the doctrine applies only where the defendant’s activity is “ultra-hazardous,” and that if negligence is lacking on the part of the defendant, “intervening cause” bars liability.

The treacherous footing awaiting those who seek either to impose or to avoid liability for damages caused by escaping oil has generated much scholarly analysis. See, e. g., Keeton & Jones, Tort Liability & the Oil & Gas Industry, 35 Texas L.Rev. 1 (1956); Keeton & Jones, Tort Liability & the Oil & Gas Industry II, 39 Texas L.Rev. 253 (1961). See also Green, Hazardous Oil & Gas Operations: Tort Liability, 33 Texas L. Rev. 574 (1955). It appears that Louisiana law regarding liability for oil pollution is particularly fugacious, see generally Robertson, Tort Liability for Oil & Gas Operations in Louisiana, 14th Annual L.S.U. Institute on Mineral Law 49 (1967), but we find that we need not immerse ourselves completely in an extended review of the refinements of that jurisprudence. Even assuming arguendo that all other conditions that would call for “liability without fault” are present, we find that Louisiana would not impose liability where (1) the oil company was not negligent, and (2) the calamity was caused solely by a superseding and intervening event.

The “intervening cause” limitation on Louisiana’s doctrine of absolute liability clearly appears in Town of Jackson v. Mounger Motors, supra note 8:

“When the principle [of absolute liability] is applicable, strict liability results from the uses of the property which cause harm to the neighbor, the resulting damage itself constituting ‘fault’ even in the absence of any showing of negligence by the offending neighbor .... [But] it is ‘not applicable to occurrences of an unusual nature directly occasioned by human error’, especially that of an intervening stranger, Arrington v. Hearin Tank Lines, La.App. 2 Cir., 80 So.2d 167, at page 173.”

98 So.2d at 699

“Furthermore, even when the doctrine is applicable, a recognized limitation thereof is that liability does not extend when the damage results from an independent, intervening agency which was unforeseeable by a reasonable person . . . .”

Id. at 700.

Appellants’ reliance on Brantley v. Tremont & G. Ry., supra note 5, is misplaced. In that case the defendant’s activity was a concurrent cause with the intervening event, but Terre Haute Plantation, Inc. v. Louisiana & A. Ry., supra note 8, firmly established that where the sole cause of the damage is the intervention into defendant’s lawful activities of some outside agency or force, liability will not be imposed where defendant was in no way negligent in allowing or failing to prevent the intervention. Here, both the existence of such an intervening cause and the absence of any negligence on the part of Humble were found as matters of fact. Having refused to overturn those fact-findings, we hold that the trial court correctly ruled that “liability without fault” was thus unavailable here.

Appellants’ second theory of recovery rests on their argument that the doctrine of res ipsa loquitur justifies pinioning liability on negligence that should have been inferred from the mere fact that an oil spill occurred. Louisiana requires that three factors be shown before this doctrine may be invoked:

“It is now well established in our jurisprudence that in order for the principle or rule of res ipsa loquitur to apply, it must be shown (1) that the circumstances attending the accident were such as to create an inference of negligence on the part of the defendant; (2) control and management of the instrumentality responsible for the damage or injury was vested exclusively in the defendant; and (3) plaintiff was not in a position to know the particular circumstances which caused the instrumentality concerned to operate to his injury whereas defendant, being in such position, possessed superior knowledge or means of information regarding the cause of the mishap. Dorman v. T. Smith & Sons, 223 La. 29, 64 So.2d 833.”

Murphy Corp. v. Petrochem Maintenance, Inc., La.App.1965, 180 So.2d 716, 724. The parties devote much of their briefing to the question of whether these factors were or were not satisfied in the court below, but we need not address that issue because we find that res ipsa loquitur has no relevance to this appeal.

The doctrine of res ipsa loquitur is little more than an evidentiary technique that allows an injured person, who would not otherwise be able to do so, to show a prima facie case of negligence. Thus, when the doctrine’s initial factors are shown and defendant is the person who had exclusive control of an instrumentality that injured plaintiff in a way that ordinarily would not have occurred unless there was negligence on the part of defendant, the burden shifts to defendant to disprove the inference of negligence or to show that he did not cause the damage. See Watkins v. Gulf Refining Co., supra note 2. Negligence is nonetheless the basis for imposing liability, Langlinais v. Geophysical Service, Inc., La.Sup.Ct.1959, 237 La. 585, 111 So.2d 781, and defendant may clearly avoid an adverse judgment by satisfying the trier of fact that his action or inaction did not cause the harm. Hoyt v. Amerada Petroleum Corp., La.App.1953, 69 So.2d 546, 547-548.

The rule is merely evidentiary, and it may be overcome either by proof that defendant was not negligent or by proof that defendant’s behavior was not a cause of the injury:

“As this court has often said, the doctrine of res ipsa loquitur is a rule of evidence, the applicability of which is to be determined in each case at the conclusion of the trial. When the doctrine of res ipsa loquitur is applicable to a case, the accident which has caused plaintiff’s damages makes out a prima facie case of negligence by the defendant, and the burden is then on the defendant to show absence of negligence on its part.”

Day v. National U.- S. Radiator' Corp., La.Sup.Ct.1961, 241 La. 288, 128 So.2d 660, 664. Furthermore, although it is said that the applicability of the doctrine should normally await the conclusion of the trial, e. g., Langlinais v. Geophysical Service, Inc., swpra, it ceases to apply at whatever point defendant convinces the fact-finder that defendant’s negligence was not responsible. Here, the trier of fact found that (1) the negligence of an unknown marine vessel was the sole cause of the oil spill, (2) Humble was not a cause of the loss, and (3) Humble was not negligent. Those findings are not clearly erroneous and Humble has thus carried its burden of showing that it was not responsible, which it did by showing that someone else was to blame. Without suggesting what the result might be were these three fact findings not present, we hold that res ipsa loquitur is of no avail to appellants on this appeal.

In the light of these same fact-findings, appellants’ final theory of liability, ordinary negligence law, obviously must also fail. It is hornbook law that in order to recover for negligence, plaintiffs must prove that defendant was negligent. That negligence was alleged, but the trier of fact has conclusively determined that Humble was not negligent. That finding not being clearly erroneous, there the journey ends. Movible Offshore, Inc. v. M/V Wilken A. Falgout, 5 Cir. 1973, 471 F.2d 268, 272-273.

We have considered each of appellants’ remaining points of error and conclude that each is without legal merit. The fact that the oil on these troubled waters was floating from Humble’s line is a raw fact that does not by itself establish tortious culpability. The trial court having thoroughly shelled the facts from the allegations, Humble’s ownership of the pipe that was punctured is the only fact upon which the oystermen rely. Standing alone, it cannot shore up the factual deficiencies in this case. There is no doubt that these appellants were in fact injured through no fault of their own. But within the context of the findings of fact entered below, there is equally no doubt that appellants have failed to bring themselves within the borders of any theory that will allow them to cast the legal responsibility for those losses on Humble.

Affirmed.

      . Fletcher v. Hylands, L.R. 1 Ex. 264 (1866) ; Hylands v. Fletcher, L.R. 3 H.L. 330 (1868). Blackburn’s formula was stated as follows:
      “We think that the true rule of law is, that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief, if it escapes, must keep it at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape."
      Lord Cairns limited the doctrine to any “non-natural use” of the land.

      . See, e. g., in addition to the cases cited in notes 3-5 infra, Chaney v. Travelers Ins. Co., La.Sup.Ct.1971, 259 La. 1, 249 So.2d 181 (strict liability for damages caused by vibrations from canal construction) ; Gullatt v. Ashland Oil & Refining Co., La.App.1971, 243 So.2d 820 (mineral lessee “absolutely liable” for destruction of water well by lessee’s blasting operations). See also Watkins v. Gulf Refining Co., La.Sup.Ct.1945, 206 La. 942, 20 So.2d 273 (liability for crop damage caused by a well blowing out) ; Maryland Casualty Co. v. Rittiner, La.App.1961, 133 So.2d 172 (spread of fire from defendant’s work with hot tar).

      . Langlois v. Allied Chem. Corp., infra note 4; Bankston v. Farmers Cooperative Gin, La.App.1960, 116 So.2d 91 (spread of airborne debris from cotton gin).

      . Langlois v. Allied Chem. Corp., La.Sup. Ct.1971, 258 La. 1067, 249 So.2d 133 (inhalation of gas and chemical fumes escaping from chemical company) ; Craig v. Montelepre Realty Co., La.Sup.Ct.1968,
        252 La. 502, 211 So.2d 627 (piledriving) ; Gotreaux v. Gary, La.Sup.Ct.1957, 232 La. 373, 94 So.2d 293 (“strict liability” for drifting herbicide despite compliance with agricultural regulations) ; Fontenot v. Magnolia Petroleum Corp., La.Sup.Ct. 1955, 227 La. 866, 80 So.2d 845 (“absolute liability” for damage to houses resulting from defendant’s blasting operations) ; Wright v. Superior Oil Co., La.App.1962, 138 So.2d 688 (damage to water wells caused by blasting) ; Pate v. Western Geophysical Co. of America, La.App.1956, 91 So.2d 431 (damage to water wells caused by blasting) ; Bruno v. Employers Liability Assurance Corp., La.App.1953, 67 So.2d 920 (damage to neighbors caused by non-negligent piledriving).

      . Brantley v. Tremont & G. Ry., La.Sup.Ct, 1954, 226 La. 176, 75 So.2d 236 (railroad liable for damages caused by cutting hole in dam to allow trapped water, swollen by heavy rains, to drain).

      . Collins v. Texas Co., 5 Cir. 1959, 267 F.2d 257 (Louisiana case: no liability absent negligence for damage to oysters caused by lawful dredging operations) ; Vodopija v. Gulf Refining Co., 5 Cir. 1952, 198 F.2d 344 (Louisiana case: no liability for damage to oysters resulting from lawful dredging) ; Begovich v. Texas Co., E.D.La.1962, 209 F.Supp. 412 (absent negligence, oil company not liable to oystermen for damages caused by non-negligent dredging) ; Vodopija v. Tennessee Gas Trans. Co., E.D.La.1957, 152 F. Supp. 14 (no liability absent negligence for damage to oysters resulting from lawful pipeline construction) ; Doucet v. Texas Co., La.Sup.Ct.1944, 205 La. 312, 17 So.2d 340 (liability for damage to oysters caused by negligent discharge of oil) ; Lauzon v. Trahan Drilling Contractor, Inc., La.App.1971, 247 So.2d 236 (oil company liable for negligently damaging oyster beds), writ ref’d, no error of law, 259 La. 69, 249 So.2d 206; Skansi v. Humble Oil & Refining Co., La.App.1965, 176 So.2d 236 (liability for damage to oyster beds where oil spill inferentially caused by negligence).

      . Cf. Hilliard v. Schuff, La.Sup.Ct.1972, 260 La. 384, 256 So.2d 127 (articles 667-69 not violated by fuel storage unless “substantial hazard” thereby created) ; Langlois v. Allied Chem. Corp., supra note 4 (storage activity itself dangerous).

      . Terre Haute Plantation, Inc. v. Louisiana & A. Ry., La.App.1968, 210 So.2d 566 (railroad not liable for fire spreading from its right-of-way) ; Town of Jackson v. Mounger Motors, La.App.1957, 98 So.2d 697 (owner of used car lot not liable for third person’s backing car into plaintiff’s building, even though owner had left keys in unattended automobile).

      . See also Arrington v. Hearin Tank Lines, Inc., La.1955, 80 So.2d 167; Ybarra v. Spangnard, Calif.1944, 25 Cal.2d 486, 154 P.2d 687.


author: McENTEE, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Richard H. MURPHY, Defendant, Appellant.
    No. 72-1182.
    United States Court of Appeals, First Circuit.
    Heard May 7, 1973.
    Decided June 13, 1973.

      Brian T. Callahan, Medford, Mass., by appointment of the Court, for appellant.
    James B. Krasnoo, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
    Before COFFIN, Chief Judge, ALD-RICH and McENTEE, Circuit Judges.
   McENTEE, Circuit Judge.

Defendant, Richard H. Murphy, a federal meat inspector convicted on ten counts of accepting money from a person, firm, or corporation engaged in interstate commerce in violation of 21 U.S. C. § 622, challenges these convictions on thirteen grounds. We discuss only those which are either not resolved by United States v. Seuss, 474 F.2d 385 (1st Cir. 1973), cert. denied, 412 U.S. 928, 93 S.Ct. 2751, 37 L.Ed.2d 155 (1973), or are not clearly frivolous.

In July 1968 defendant, on the first day of his assignment at State Beef Company, requested payment of $25 per week in exchange for more lenient enforcement of the statutes and regulations which governed the firm’s operations. State Beef’s owner, Abraham Cohen, testified that he paid defendant this sum every Friday from September 11 to October 15, 1968, the period specified in the indictment. In January 1970 defendant was reassigned to Blue Star Kosher Products, Inc. Once again, on his first day in the plant, he informed Blue Star foreman George Goldrich that he expected to be paid, this time, $50 per week. When Goldrieh protested that he did not possess the authority to authorize such payments, Erich Rosengarten, the plant manager of the firm that owned Blue Star, was consulted and eventually payments of $35 per week were agreed upon. Rosengarten testified that he arranged to have defendant paid this sum once each week from April 1 to May 12, 1970, the period in question.

On this background defendant first challenges part III of 21 U.S.C. § 622 on equal protection grounds. Specifically, he contends that this provision draws an impermissible distinction between two similarly situated groups, meat inspectors and meat packers, by making it an offense for inspectors to accept or receive any item of value, irrespective of the intent of the donor, while creating no corresponding offense covering packers. The difficulty with this argument, however, lies in its premise since it is clear that in enacting The Meat Inspection Act of 1907, 34 Stat. 1264, of which the predecessor of § 622, 21 U.S.C. § 90, was a part, Congress was justified in drawing distinctions between the group of federal employees who were to be charged with the enforcement of the Act and the other participants in the meat processing industry. As noted in Seuss, supra at 388 of 474 F.2d, the aim of Congress in enacting this legislation was “to insure that meat products sold to the consumer [would] be clean and safe. [In implementing this policy a] system of federal inspection was created and the inspectors subjected to strict regulation lest their corruption — or the appearance of it — undermine the quality of meat or the public’s trust in their supervision of meat quality.” It is of course entirely reasonable for Congress to decide that the federal inspector — the one with ultimate power to control the products leaving the plant and the one imbued with a substantial public trust — should be treated more strictly than private parties whose offers of money can be refused, who do not have the final word on the produce going to the market, and who may be lowly employees with little power and perhaps are acting without corporate direction. Since the statutory configuration defendant complains of clearly bears a rational relation to the achievement of these legitimate and laudatory legislative goals, we cannot agree that the statute offends the equal protection guarantees implicit in the fifth amendment.

Defendant next contends that the trial court erred in denying in whole or in part his pre-trial motions for a list of all persons expected to testify at trial, for disclosure of any immunity awarded the witnesses who either testified before the grand jury or were expected to testify at trial, and for the production of all exculpatory material in the possession of the government. We find the trial court’s disposition of each of these motions to have been appropriate.

First, with regard to defendant’s request for disclosure of the government’s trial witnesses, since criminal defendants are ordinarily not entitled to this information, see United States v. Glass, 421 F.2d 832, 833 (9th Cir. 1969), and cases cited, it is settled that this motion was addressed to the discretion of the trial court. Given the simple nature of the underlying factual situation in the instant case and the fact that three of the government’s four witnesses were named in the indictment, this discretion was not abused in the denial of this motion. Defendant’s motion regarding transactional immunity was granted in part and denied in part, disclosure being required only at the time of trial and only as to those witnesses who actually testified. This disposition was also correct since, before trial, as defendant recognizes, he made no showing of any compelling need for this information. See Walsh v. United States, 371 F.2d 436 (1st Cir.), cert. denied, 387 U.S. 947, 87 S.Ct. 2083, 18 L.Ed.2d 1335 (1967). Nor do his further contentions that such compelling need became apparent at trial and that he suffered prejudice and was deprived of procedural due process by the belated disclosure of this data withstand scrutiny. As a review of the record reveals, trial counsel never complained that he lacked an adequate opportunity to examine the grand jury testimony of the government’s witnesses during trial and, as is abundantly clear from the transcript, full and skillful use of this testimony was made on cross-examination. Finally, the denial of defendant’s motion for the production of exculpatory material on the government’s representation that it did not possess any such evidence and that any that it did acquire would be made available was also proper. Again, aside from a single allegation that Rosengarten’s testimony should have been turned over because it demonstrated that in making payments he was acting as an individual and not as an agent of Blue Star, a point which is clearly without merit in light of our conclusion in Seuss, swpra, at 390 of 474 F.2d, that no corporate policy need be established to sustain a § 622 violation, defendant raises no other allegation of government failure to make a required disclosure.

Defendant’s next series of complaints are directed to the sufficiency of the government’s proof or to events which occurred at trial. He argues first that the trial court erred in receiving evidence which indicated that he had committed a number of criminal acts, i. e., had accepted a number of illegal payments, in addition to those for which he was being tried. Mindful of the rule that evidence of offenses which are wholly independent of those charged is generally inadmissible, see Fish v. United States, 215 F. 544 (1st Cir. 1914), we note initially that the evidence in question might well have been admissible under exceptions to this rule either to show that defendant acted knowingly or wilfully in accepting these payments or because it was “so blended or connected with the [evidence of the offenses] on trial . . . that proof of one incidentally involve [d] the other. .” Green v. United States, 176 F.2d 541, 543 (1st Cir. 1949), quoting Braeey v. United States, 79 U.S.App.D. C. 23, 142 F.2d 85, 87, cert. denied, 322 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589 (1944). Additionally, however, on the two occasions when this evidence went in, defendant raised no objection. Especially in view of the obvious nexus between this evidence and the offenses on trial, we cannot say that these admissions constituted plain error.

Defendant further suggests that the government’s evidence was insufficient to establish that State Beef and Blue Star were engaged in interstate commerce. This argument is not persuasive, however, in view of the testimony of State Beef’s owner that he purchased meat in New Hampshire and sold it outside Massachusetts and of Blue Star officials that they made purchases in Maine and New Hampshire and sales in Connecticut and New York. Defendant’s further attempt to characterize this evidence as de minimis and therefore inadequate must also fail since to require proof of an extensive participation in interstate commerce would be to place an unduly restrictive burden on the scope of § 622.

The prosecution’s summation is the target of defendant’s next attack. In this regard, he argues, in particular, that the government’s repeated references to him as a “bribe taker” or “money taker” and its allusions to the potential impact “accommodating” meat inspection might have on the quality of meat sold to consumers were so prejudicial that he was deprived of a fair trial. This argument is unavailing for at least two reasons. First, the government is entitled to include an accurate summary of the evidence in its closing statement, see United States v. Miceli, 446 F.2d 256, 260 (1st Cir. 1971), and nothing which defendant has called to our attention indicates that this privilege was abused in the instant case. Unlike De-Christoforo v. Donnelly, 473 F.2d 1236 (1st Cir. 1973), on which defendant relies, the prosecutor did not “testify” as to his personal opinion of defendant’s guilt or innocence. Second, since no objections were taken to the remarks in question, it is clear, under the circumstances, that this summation did not constitute plain error.

Defendant takes issue with the trial court’s instruction in two respects. Without having requested an instruction on either issue, he asserts that the court committed plain error by failing to make mention of the transactional immunity granted the government’s witnesses and by failing to instruct that in order to convict the jury must find a connection between the payments made and defendant’s official duties, the so-called “connection requirement” instruction of United States v. Seuss, supra. Little need be said with regard to the absence of the instruction on the immunity issue other than to note first, that defendant raised no objection to the court’s instructions on this ground, second, that he did make full use of this information on cross-examination, and finally, that the court did direct the jury to consider the witnesses’ “intelligence, motives, . . . state of mind, . . . demeanor and manner” in assessing their credibility. The absence of the connection requirement instruction also gives us little pause. Aside from the fact that this case was tried ten months before our decision in Seuss, thus making the omission of this instruction understandable, the evidence that these payments were made in connection with the performance of defendant’s official duties was abundant. Given the fact that defendant demanded payments on his first day at both packing plants and even specified at State Beef that for $25 per week he would be less forceful in the performance of his responsibilities as an inspector, the court’s failure to give this instruction did not constitute plain error.

Finally, defendant’s request that we review his sentence is without merit. The three year term he received was clearly within statutory limits. His allegation that his receipt of the harshest sentence of all those given meat inspectors prosecuted in the District of Massachusetts in the recent spate of such trials was a denial of equal protection, being unequal or selective enforcement, is substantiated by nothing other than a list of the sentences meted out. In the absence of any affirmative showing of impropriety, United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), we cannot sustain this claim of unequal enforcement.

Affirmed.

      . Part III of § 622 provides :
      “[A]ny inspector . . . authorized to perform any of the duties prescribed . who shall receive or accept from any person, firm, or corporation engaged in commerce any gift, money, or other thing of value, given with any purpose or intent whatsoever, shall be deemed guilty of a felony and shall, upon conviction thereof, be summarily discharged from office and shall be punished by a fine not less than $1,000 nor more than $10,000 and by imprisonment not less than one year nor more than three years.”

      . The denial of defendant’s request for a list of all persons called before the grand jury who were not sworn as witnesses was also proper since defendant demonstrated no compelling need for this data. See Walsh v. United States, 371 F.2d 436 (1st Cir.), cert. denied, 387 U.S. 947, 87 S.Ct. 2083, 18 L.Ed.2d 1335 (1967).

      . This aspect of Seuss also disposes of the claim, raised for the first time on appeal, that the counts of the indictment fail to state an offense because only individuals are identified as donors and not corporations engaged in interstate commerce or individuals acting on behalf of such corporations.

      . From our review of the transcript we do not agree with defendant’s assertion that evidence of the offenses not on trial came into the record on three additional occasions.