author: LUMBARD, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Theodore KOSS et al., Defendants-Appellants.
    Nos. 153, 234 and 480, Dockets 74-1878, 74-1879 and 74-1920.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 25, 1974.
    Decided Nov. 15, 1974.
    Certiorari Denied March 17, 1975.
    See 95 S.Ct. 1402.
    Certiorari Denied April 14, 1975.
    See 95 S.Ct. 1565.

      Richard Wile, Asst. U. S. Atty., New York City (Paul J. Curran, U. S. Atty., and John D. Gordan III, Asst. U. S. Atty., S. D. N. Y., on the brief), for appellee.
    N. George Turchin, New York City (Morris Weissberg, New York City, on the brief), for appellants Theodore Koss and Koss Securities.
    Lawrence Stern, New York City (Edward S. Panzer, New York City, on the brief), for appellant Erwin Layne.
    Before LUMBARD, FEINBERG and OAKES, Circuit Judges.
   LUMBARD, Circuit Judge:

Theodore Koss, Koss Securities Corporation, Erwin Layne, and William McGee appeal from judgments of conviction for mail fraud and other offenses related to the sale of stock in Automated Information Systems, Inc. (AIS) entered on June 14, 1974, in the Southern District, following a thirteen-day trial before Judge Charles M. Metzner and a jury. Each appellant was convicted of conspiring to violate the federal securities and mail fraud laws, 18 U.S.C. § 371, and of committing fraud in the purchase and sale of securities, 15 U.S.C. §§ 78j(b), 78ff, and mail fraud, 18 U.S.C. §§ 1341, 1342. In addition, Koss and Koss Securities were convicted of fraud in the offer and sale of securities, 15 U.S.C. §§ 77q, 77x, and of failing to deposit proceeds from an “all or none” offering promptly in an escrow account, 15 U.S.C. §§ 78o(c) (2), 78ff; 17 C.F.R. § 240.15c2-4(b). Koss was also found guilty of submitting false documents to the Securities and Exchange Commission (SEC) in the course of its investigation. 18 U.S.C. § 1001.

The indictment, filed on September 25, 1973, named the appellants and twelve others as defendants. In addition it named seven unindicted individuals and corporations as co-conspirators, including Michael Hellerman, the principal government witness, and Murray Levine, who also testified for the government. Nine of the defendants pleaded guilty before trial; of them Stephan Zardus, Robert Santis, Steven Adlman, and Robert Kolbert testified for the government. Of the three remaining defendants, besides appellants, the jury acquitted Stephen Hagler, and the court granted a severance to Samuel Weisman and Harold Lassoff.

Appellants raise numerous issues in challenging their convictions. We find the various claims to be without merit, and we affirm the judgments of conviction.

I.

Appellants Koss and Koss Securities Corporation challenge the sufficiency of the evidence. We find that the record viewed, as it must be, in the light most favorable to the government, United States v. Glasser, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Arroyo, 494 F.2d 1316 (2d Cir. 1974); United States v. McCarthy, 473 F.2d 300, 302 (2d Cir. 1972), amply supports the jury’s verdict.

In late 1970 Koss and Koss Securities made an agreement with Robert Santis, the president and owner of AIS, to undertake the public offering of 65,000 shares of AIS common stock at one dollar per share. Koss was to receive fifteen percent of the proceeds, ten percent as commission and five percent for expenses. Santis was trying to raise capital for his small, computer consulting company which had just earned a small profit in its second year of operation. The underwriting was on an “all or none” basis: the moneys would be returned to subscribers and no commission paid to Koss unless all the shares were sold by a certain date. All of the proceeds Koss received from the sale of shares were to be deposited promptly in an escrow account pending completion of the offering, as required by SEC rule 15c2-4 and as indicated in the offering circular.

The offering circular became effective on December 2, 1970. During December Koss was unable to sell more than 15,000 shares. He began to receive payments in December, but did not open an escrow account until December 30, 1970, when he deposited $3000 — comprised not of customers’ checks for AIS shares, but $2875 from Koss Securities’ own account at Shearson, Hammill, another brokerage firm, and $125 from the firm’s own bank account. Although it was not clear when Koss received all the proceeds from the sale of the 15,000 shares, since some customers may have delayed payment until near the expiration date of the offer on March 2, 1971, Koss continued to receive payments in January and February. However, after the December 30 deposit, no deposit was made to the escrow account until March 5, 1971, several days after the offering was completed.

On February 1, 1971, Interstate Equity Corporation, headed by Stephan Zardus, was added as a co-underwriter and the offering circular correspondingly amended. Zardus, however, was able to place less than 4000 additional shares.

At that point Murray Levine, who had recently been an employee of Koss Securities and knew of Koss’ difficulties in disposing of the stock, contacted Michael Hellerman and Murray Taylor, who agreed to sell the remaining 45,600 shares on two conditions: that they receive one-half of the proceeds of the offering, and that they be given complete control over all 65,000 shares so that the market could be manipulated. This required Levine to convince Koss to recommend to his customers that they sell their AIS stock to Hellerman soon after the offering was completed. Hellerman told Levine that he would pay $1.50 for those shares at that time — a profit of fifty cents per share for Koss’ customers.

Levine and Koss thereafter both told Santis that a group had been found to complete the offering. At a mid-February meeting with Levine, Taylor and Hellerman, Santis reluctantly agreed to the kickback arrangement, fearing that without the assistance of Taylor and Hellerman the offering would fail and AIS would receive no new capital. Santis and Levine also gave the required assurances that Koss would turn over the 15,000 shares at $1.50 per share.

Koss’ involvement at that point was somewhat unclear. His later statement to Hellerman that he wanted to “renegotiate” suggests that he did promise Levine before this February meeting that he would turn over the shares at $1.50 per share to the new group. In any event, Koss, if not already, was soon well aware that the group completing the offering was involved in some kind of fraud. After Santis’ first meeting with Hellerman, Santis called Koss several times to say that the group wanted the shares. Koss replied that he would not turn over control of the shares until he knew exactly what the deal was, who was involved, and what his participation would be.

Meanwhile Hellerman formed a partnership for the AIS promotion with Taylor and appellant Layne. By February 26, four days before the offering would have expired, the group had sold the remaining 45,600 shares. They purchased 27,600 of the shares themselves in the names of acquaintances and names taken from the telephone book. The cost of the purchases would be more than offset by the kickbacks they were to receive. On February 26, Hellerman and Taylor met with Santis and Zardus and gave them the names of most of the purchasers they had “found,” as well as the payment for all the shares. Zardus was to send confirmations only to the legitimate purchasers.

Immediately after that meeting, Zardus called Koss and told him that the offering was going to be successful because of the involvement of Hellerman and Taylor. Zardus also stated that he was accepting a reduced commission because Santis had agreed to kick back one-half of the proceeds of the offering to Hellerman and Taylor. Koss now knew, before the offering was completed and any shares had been issued, not only that the group Levine had found planned to manipulate the post-offering market in the stock, but that AIS would receive substantially less capital than the offering circular indicated.

Koss went along with the Hellerman group and did nothing to have the offering circular amended in spite of his affirmative duties as an underwriter to the investing public. Instead he jockeyed to gain a share of the profits from the manipulation. When the offering was completed he delayed paying AIS the proceeds from the 15,000 shares that he had sold, and he still resisted turning over control of the 15,000 shares to the group. He continued to ask Santis what the deal was and what his participation would be. Finally, on March 5, he wired $9,800 from his firm’s bank account to the escrow account, and on March 10 paid AIS $12,500 from the escrow account. That amount represented the proceeds from the 15,000 shares, less Koss’ commission and expense allowance of fifteen percent. The balance of the proceeds from the sale of AIS stock was never deposited to the escrow account.

Santis kicked back to the Hellerman group $31,000 and also gave them a $10,000 “loan” to finance the' early stages of the manipulation. Zardus received a $1500 commission. In the end AIS received no more than $20,000 from the offering, although the offering circular had represented the net proceeds as approximately $55,000.

The post-offering efforts to get control of the shares of Koss’ customers and to drive the price up began in April. Zardus was told by Hellerman that Koss would be calling him to sell AIS shares, and Koss did call shortly thereafter to sell 2,000 shares at $l%e. But Koss also made sales to other brokers, which interfered with Hellerman’s plans, and this precipitated a confrontation with Hellerman in Miami on April 12. Hellerman accused Koss of violating his agreement with Levine; Koss said he wanted to “renegotiate.” He said he knew that there was going to be a big “jiggle” in the stock and he insisted upon keeping some AIS shares, rather than turning them all over at $1.50 per share. An agreement was reached that Koss could retain 5,000 shares, to be sold later at higher prices but only in proportion to the Hellerman group’s sale of its shares. Control over the remainder of the 15,000 shares not already sold to other brokers would be turned over to Hellerman at $1.50 per share.

After this meeting Taylor called Zardus and said Koss would be calling to sell shares at around $1.50, which Koss did (3000 shares). Meanwhile Koss Securities purchased at least 2,800 shares for its own account from its own customers, also at $1.50 per share. It recommended sales by its customers even though the firm planned to purchase and hold up to 5,000 shares to take advantage of expected higher prices. Moreover, during this period, Zardus’ firm was selling AIS to brokers and customers at prices from $2 to $4 per share.

Koss, who was now in frequent contact with Hellerman, soon complained that Hellerman was not allowing him to sell his shares fast enough, and threatened to “bank the market” (sell all his shares on the open market, thereby lowering the price). Hellerman told Koss to open two accounts and sell 2,500 shares into them immediately. Before payment was made, they had a second confrontation on April 22, partially in the presence of Santis and Zardus. Koss repeated his threats to sell unless he was given a bigger piece of the deal and finally Hellerman agreed to pay Koss $2.50 per share for all Koss’ stock, including the 2,500 shares Koss had sold into the two accounts. Layne went to Koss Securities where he picked up 5,000 shares; Hellerman paid Koss $7,500 in installments, but finally refused to pay the last $5,000 in July.

Koss also performed numerous incidental services for which he was paid. By May 6, Hellerman, Taylor and Layne had sold 21,400 shares (all of which they had purchased in telephone-book names), at artificially high prices of $2 to $5% per share. In order to transfer these certificates to unsuspecting purchasers and to negotiate checks payable to telephone-book “sellers,” Hellerman, Taylor, and Layne forged numerous signatures, paid premiums for the cashing of checks with forged endorsements, and secured signature guarantees from brokerage firms for certificates in telephone-book names. Koss was paid one percent of the proceeds of three checks payable to such names and endorsed by Koss Securities, which were cashed at the firm’s bank. Koss also bribed an employee of a member of the New York Stock Exchange to affix signature guarantees to certificates made out to telephone-book names. Koss Securities itself guaranteed many such certificates, even though its normal practice was only to guarantee signatures of persons it knew, or its customers.

By late May, the Hellerman group was concerned with unloading its remaining shares at any price. At the suggestion of Robert Kolbert, who was being paid for finding purchasers for the group’s stock, appellant William McGee agreed to recommend purchases of AIS to Executive Park Securities, a brokerage firm where he had an account and knew the principal brokers, in return for being paid $100 for every 100 shares Executive Park purchased. This kickback arrangement was not disclosed to Executive Park which purchased over 1,500 shares upon the recommendations of McGee and Kolbert. Hellerman paid $1,500 in two installments to Kolbert, who relayed the funds to McGee.

In June the SEC commenced an investigation, and Koss testified before the Commission on June 15. Also in June, Hellerman and Taylor independently went to the United States Attorney to save themselves by telling much of what they knew. The stock sold for $4% per share on June 21, but a week later it had fallen to twenty-five cents per share.

Koss did not testify at trial. Instead, his wife, who was a partner in Koss Securities, testified regarding the business practices of the firm and her husband’s relationship with Murray Levine. Koss also offered character witnesses, plus one witness who had ignored his recommendation to sell AIS. Koss’ defense was that he had no knowledge of the fraud, especially before the offering was completed, and that he did not enter into any agreements with Hellerman to raise the price of AIS shares.

Layne did not testify, nor did he call any witnesses. McGee, however, did tes: tify. He admitted recommending AIS shares to Executive Park, although he had denied this when testifying before the grand jury. But he denied receiving $1,500 from Kolbert.

II.

The government’s evidence, as outlined above, was clearly sufficient to support the jury’s verdict that Koss and Koss Securities were members of a conspiracy to defraud investors by diverting proceeds of a public offering from AIS, and by driving up the price of AIS shares in the post-offering market and selling the group’s own shares to unsuspecting investors at artificially high prices.

Koss knew of the fraud before the offering was completed. His main concern was using his control over the shares he had sold as leverage to secure for himself a substantial share of the profits of the manipulation. His immediate stake in the conspiracy was the receipt of his $2,500 commission for the sale of 15,000 shares, which he otherwise would have lost. Thereafter he was in fact successful in increasing his share of the profits of the manipulation by threatening to sell the 15,000 shares on the open market rather than putting them under Hellerman’s control.

Koss acted in furtherance of the conspiracy during the offering by violating his duty as an underwriter to disclose material information through an amended offering circular. Thereafter, he helped Hellerman gain control over the 15,000 shares he had sold, going so far as to buy AIS from his own customers at below the market price. He also bought shares for his firm, at the same time he was recommending sales to his customers.

The evidence also supports the jury’s verdict that Koss failed to deposit the proceeds of the underwriting promptly in an escrow account as required by SEC rule 15c2-4. Koss sold 15,000 shares, at one dollar per share, in December, after the offering began on December 2. He did not open an escrow account until December 30, when he deposited $3,000 not directly derived from customers’ payments for AIS shares. The government then showed that Koss received two checks in January, and an additional payment in February, and that no deposit was made to the account after December 30 until March 5, 1971, after the offering had been completed. Even then only the net proceeds due AIS from Koss were deposited.

The jury justifiably did not credit Koss’ argument that there was no proof that he received more than $3,000 before the very end of the offering in early March. The greatest difficulty with that explanation was that the December deposit would have had to have been in part an advance deposit intended to cover the payments which the government proved Koss received in January and February. However, such an advance deposit would have served no purpose other than to tie up the firm’s own funds unnecessarily. Moreover, such an advance deposit seems markedly inconsistent with Koss’ attitude toward the account. Koss told Zardus in February not to deposit in escrow a check Interstate had received from an AIS purchaser, because the offering might not be successful. Koss also never deposited a single customer’s check to the account, even though there was no reason not to deposit directly checks which were solely in payment for AIS shares. Finally, the jury could have concluded that one reason Koss delayed paying AIS the net proceeds from the 15,000 shares was that the money had been commingled with the firm’s own funds and used in its business.

The conviction for submitting false documents to the SEC on June 15, 1971, is supported by the record. The “blue questionnaire” submitted by Koss, which he said represented all the trades of the firm and its customers in AIS, indicated sales to Zardus’ firm of only 4,400 shares between April 7 and April 14, 1971, when the evidence at trial was that 5,000 shares had been sold by Koss and Koss customers to that firm. Furthermore, Koss submitted a document which he said contained all the trades in AIS which Koss Securities had made for its own account. Yet Mrs. Koss testified that that document was merely her husband’s position sheet and would “mean nothing,” to someone looking for all the AIS trades made by the house. The government also showed numerous inconsistencies among Koss’ records, especially between those he submitted in June 1971 and those the SEC obtained from the firm in November that year, with regard to trades of AIS shares.

III.

Koss and Layne seek reversal of their convictions on the ground that the government’s use of Michael Hellerman as a witness deprived them of due process of law in that his testimony was incredible, that he masterminded the scheme while under contract with the government, and that the government improperly rehabilitated him as a witness. We find no error in the use of Hellerman as a witness.

The jury was fully advised regarding Hellerman’s relations with the United States Attorney’s Office and the crimes he committed before and after he first cooperated with that office regarding his stock-swindling activities. That being so, it was for the jury to decide to what extent, if any, his testimony could be believed. Hoffa v. United States, 385 U.S. 293, 310-312, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); United States v. Aviles, 274 F.2d 179, 190 (2d Cir.), cert. denied, 362 U.S. 974, 80 S.Ct. 1057, 4 L.Ed.2d 1009 (1960); United States v. Reina, 242 F.2d 302, 307 (2d Cir.), cert. denied, 354 U.S. 913, 77 S.Ct. 1294, 1 L.Ed.2d 1427 (1957). Judge Metzner in his charge fully and fairly cautioned the jury regarding the care it should exercise in evaluating the testimony of an accomplice.

Defense counsel at trial questioned Hellerman intensively and revealed him to be an untiring securities con-artist who, after being barred from the securities industry by the SEC in the early 1960’s, reentered it using the brokerage firm Kelsey & Co. as a front, and became a principal participant in at least seven frauds involving the stock of the following corporations: Imperial Investment Corporation, Belmont Franchising, Inc., At Your Service Leasing, Minute Approved Credit, Globus, Computer Microdata, and finally AIS. As an example of Hellerman’s skill, he caused the stock in Imperial Investment Corporation, a worthless or “shell” corporation, to go from $1 to $25 per share. Heller-man reported income from these swindles of over one million dollars between 1969 and 1972. He also induced persons on at least two occasions to give false information to the SEC, and he admitted having lied, cheated and bribed continually in the course of his numerous swindles.

Hellerman stated that in November, 1970, he entered into an agreement with the United States Attorney’s Office in New York, pursuant to which he agreed to plead guilty to one count of fraud in connection with the Imperial Investment promotion, to give information to the government and to commit no further crimes, in return for nonprosecution for other crimes he had committed. He admitted at trial that he had broken that agreement by subsequently participating in the Computer Mierodata and AIS frauds. Furthermore Hellerman admitted lying to the United States Attorney in June 1971 about his own participation in the AIS scheme, in an attempt to place the blame on Taylor. At that time he was instructed to stay out of the deal but to report developments.

Finally, the defense questioned Heller-man about his new agreement with the government, made when his breach of the prior agreement had been discovered. Hellerman had pleaded guilty to two additional counts of fraud and served a total of only nine and one-half months in jail. He also had agreed to testify for the government, in return for nonprosecution for all his other crimes, so long as he testified truthfully.

Appellants do not now come forward with any additional information of perjury or other crimes committed by Hellerman of which the jury was not advised. Thus their reliance on Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1952) is misplaced. In that case the Supreme Court reversed a conviction and ordered a new trial when it was discovered after trial, and called to the court’s attention by the Solicitor General, that the principal government witness had made numerous untrue statements on related matters in other relatively contemporaneous proceedings. Here, however, the jury had before it a full catalogue of Hellerman’s misdeeds, double dealings and pi’evarieations.

The government must take its witnesses where it can find them. Few are the fraud cases where the government can prove its charges without calling witnesses like Hellerman who have participated actively in the scheme and profited from the fraud.

It is for the prosecution to make the decision as to who shall be the witness and who the accused. While one cannot help but wonder how much value the government received from the bargain from which Hellerman benefited, the court must leave such decisions to the Department of Justice and leave to the jurors the assessment of the testimony.

From the record before us we can only conclude that the government had no responsibility for Hellerman’s part in the AIS stock promotion in the spring of 1971 and that the United States Attorney’s Office knew nothing about it until Hellerman, in light of the anticipated collapse of the market in the stock, went to the United States Attorney and told him of the scheme while attempting to play down his own part in it. At no time did the government condone Hellerman’s illegal activities or encourage him to participate in any questionable conduct. The fact that Heller-man failed to keep his word to stay out of stock swindles was relevant only to the jury’s assessment of his credibility. It is also clear that Hellerman entered into the AIS scheme on his own and not with the intention of securing information for the government. Instead he went to the government only later when it served his purpose to do so.

The Hellerman situation parallels that in United States v. Corallo, 413 F.2d 1306, 1320-1321 (2d Cir.), cert. denied, 396 U.S. 958, 90 S.Ct. 431, 24 L.Ed.2d 422 (1969), where a government informant on other matters entered a particular conspiracy solely on his own and with no intention of securing information for the government. That person’s involvement with the government on other matters was found not to make him a government agent for purposes of that particular case. Similarly, as Hellerman was wholeheartedly a member of this conspiracy, his conduct cannot form the basis of an entrapment or due process claim when he later agrees to testify for the government.

We find nothing in this record which persuades us that there could have been a miscarriage of justice because of the role which Hellerman played as a witness. It was as a witness, and only as a witness, that the government used him.

In any event, we note that the participation of the appellants in the AIS manipulation was so abundantly proven by other evidence which corroborated in essential details almost all of Hellerman’s testimony that it is difficult to see how the jury could have done otherwise than convict them.

With respect to the rehabilitation of Hellerman by the government on re-direct examination, it was not error for the trial court to allow the government to introduce the text of Heller-man’s agreement with the government. On cross-examination defense counsel had tried to establish that Hellerman had a motive to testify falsely because of his desire to avoid .prosecution for the numerous offenses which he at trial admitted having committed. Introduction of the agreement showed that Hellerman in fact was liable to prosecution for all such crimes if he committed perjury while testifying for the government. It was thus properly admitted as completion of an area only partially explored on cross-examination.

IV.

Nor is there any merit to Koss’ remaining claims. First, he argues that he was denied his sixth amendment right to be informed of the charges against him. We find, however, that he has failed to demonstrate that the indictment was insufficient, or that the trial judge abused his broad discretion in denying portions of his bill of particulars. E. g., United States v. Salazar, 485 F.2d 1272, 1277-1278 (2d Cir. 1973), cert. denied, 415 U.S. 985, 94 S.Ct. 1579, 39 L.Ed.2d 882 (1974). Koss complains that he was prejudiced as a result of the trial court’s order because he did not know before trial that the following would be proved against him: the guaranteeing of forged signatures on stock certificates, knowledge of the kickback from Santis to Hellerman, cashing a forged check for Hellerman, and selling 10,000 shares to Hellerman at around $1.50 per share. However, we find no abuse of discretion, since Koss was informed, among other things, that he was charged with having joined, in January or February of 1971, a conspiracy of named persons to commit fraud in the offer and sale of AIS securities and to manipulate the post-offering market; that pursuant to this conspiracy Hellerman and Santis worked out a fifty-percent kickback arrangement in the offering; that Koss Securities’ transactions in AIS as both principal and agent in the first half of 1971 were part of that manipulation; that he bought stock from his customers below market price; and that numerous checks and stock powers were forged by certain named conspirators and others in the process of carrying out the conspiracy.

Koss’ claim that he was prejudiced by the trial court’s exclusion of certain documentary evidence is also without merit. Near the close of trial, and without laying any foundation, Koss’ counsel offered, at one time, all Koss Securities’ customer account cards to show that Koss had not intentionally submitted false documents to the SEC. The trial judge was acting within his discretion to exclude that evidence when defense counsel did not identify even a single entry which supported the defense. Similarly, cancelled checks payable to customers who sold any stock in their accounts in the summer of 1971 were properly excluded when no attempt was made further to identify what the payments were for.

V.

Appellant Layne contends that the trial court’s charge to the jury, although not objected to at trial, constitutes plain error because it failed to apprise the jury that specific intent to commit particular acts conferring federal jurisdiction, such as use of the mails, is required to convict a person of conspiracy under 18 U.S.C. § 371. See United States v. Alsondo, 486 F.2d 1339, 1343 (2d Cir. 1973), cert. granted sub nom. United States v. Feola, 416 U.S. 935, 94 S.Ct. 1932, 40 L.Ed.2d 285 (1974); United States v. Mauro, 501 F.2d 45 (2d Cir. 1974), petition for cert. filed, 43 U.S.L.W. 3033 (U.S. July 25, 1974) (No. 74-9); United States v. Crimmins, 123 F.2d 271 (2d Cir. 1941). We do not agree.

Layne complains principally of that portion of the charge which states that to be a member of the conspiracy one need not have full knowledge of its operations, as long as one becomes a member “with full knowledge of its general scope and purposes.” We do not read that section as negating Judge Metzner’s earlier instruction that the conspiracy must be one to use the mails (or instrumentalities of interstate commerce) in committing the particular fraud charged. Indeed, use of such means seems to be included within the “general scope and purposes” of the conspiracy referred to by the trial judge in the very passage relied upon by Layne.

Layne’s claim that his conviction should be reversed because of the prejudice accruing from his joint trial with Koss is also without merit. The evidence as to his role in the conspiracy was not so disproportionate in relation to that against Koss and Koss Securities that a severance was required. See United States v. Capra, 501 F.2d 267, 281 (2d Cir. 1974); United States v. Rizzo, 491 F.2d 215, 218 (2d Cir.), cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 769 (1974). Moreover, although the trial judge permitted the government to prosecute Koss at the joint trial for submitting false documents to the SEC, after initially severing that count, evidence of Koss’ knowing submission of false documents would nevertheless have been admissible to show Koss’ consciousness of guilt in regard to the other counts charged. E. g., United States v. Tropiano, 418 F.2d 1069, 1080-1081 (2d Cir. 1969), cert. denied, 397 U.S. 1021, 90 S.Ct. 1258, 25 L.Ed.2d 530 (1970).

We have considered the other issues raised by the appellants and find them to be without merit.

The judgments of conviction entered below are affirmed.

      . Rule 15c2--4(b) provides:
      It shall constitute a “fraudulent, deceptive or manipulative act or practice” as used in section 15(c)(2) of the Act, for any broker or dealer participating' in any distribution of securities, other than a firm-commitment underwriting, to accept any part of the sale price of any security being distributed unless:
      ij: # :¡: ❖ sis
      (b) If the distribution is being made on an “all-or-none” basis, or on any other basis which contemplates that payment is not to be made to the person on whose behalf the distribution is being made until some further event or contingency occurs, (1) the money or other consideration received is promptly deposited in a separate bank account, as agent or trustee for the persons who have the beneficial interests therein, until the appropriate event or contingency has occurred, and then the funds are promptly transmitted or returned to the persons entitled thereto, or (2) all such funds are promptly transmitted to a bank which has agreed in writing to hold all such funds in escrow for the persons who have the beneficial interests therein and to transmit or return such funds directly to the persons entitled thereto when the appropriate event or contingency has occurred. 17 C.F.R. 240.15c2-4(b).

      . Koss was sentenced to imprisonment for one year for conspiracy. Imposition of sentence on the other counts was suspended, and Koss was placed on probation for three years. Koss Securities Corporation was fined $2,500 for conspiracy, with sentencing on the other counts suspended. Layne received a one-year sentence for conspiracy, such sentence to run concurrently with an existing four-year sentence presently being served, but not to begin until December 4, 1974, the date Layne would otherwise be eligible for parole. Sentencing on the other counts was deferred. McGee was sentenced to jail for three months and to two years of probation, with sentencing suspended on the other counts.

      . By order of this court, appellant McGee has been permitted to adopt the briefs and oral arguments of his co-defendants on this appeal. He has filed no briefs on his own, nor did he have his own counsel appear at oral argument.

      . Koss attempted to impugn Hellerman’s credibility by relying on selected business records of the firm to show, for example, that it did not have 5,000 shares in the period when Hellerman said Layne had picked up 5,000 shares at Koss Securities.

      . Hellerman was sentenced to two years imprisonment for his three guilty pleas in relation to the Imperial Investment, Belmont Franchising, and At Your Service Leasing promotions. However, his sentence was reduced, without a recommendation from the United States Attorney, to time served (nine and one-half months) in September 1973, presumably because of his cooperation with the government in other trials.
      As part of this agreement Hellerman also agreed to make restitution of $100,000 to defrauded investors. At the time of trial, he had repaid $12,000.

      . It should be noted that Hellerman has testified for the government in six or seven stock fraud cases since entering into his second agreement with the government, including one case, involving Belmont Franchising, recently passed upon by this court. See United States v. Dioguardi, 492 F.2d 70 (2d Cir. 1974), cert. denied, - U.S. -, 95 S.Ct. 134, 42 L.Ed.2d 112 (1974).

      . Even if Hellerman had been working for the government, Koss would have no viable entrapment claim since the evidence of his predisposition was overwhelming. Entrapment, in any event, is a jury question, United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1972), yet Koss’ counsel did not request that the issue be submitted to the jury.

      . All references to organized crime and to threats on Hellerman’s life on account of his testimony were deleted from the agreement before it was introduced into evidence.

      . To prove a conspiracy here the evidence must show beyond a reasonable doubt the existence of each one of the following material elements:
      * * * * *
      Second, that it was part of the conspiracy to do any one of the following:
      (1) that the defendants and co-conspirators unlawfully, wilfully and knowingly, in the offer to sell and sale of securities, by the use of tlie mails, would violate Section 17(a), . . .
      (2) that the defendants and co-conspirators in connection with the purchase and sale of securities, . . . [would use] the mails, to use and employ manipulative and deceptive practices and contrivances in contravention of Rule 10b-5
      (3) that the defendants and co-conspirators, having devised ... a scheme and artifice to defraud, . . . would cause to be delivered by mail, . . . certain matter to be sent and delivered by the Post Office Department ....
      You may find that a defendant acted knowingly and wilfully if he acted voluntarily and purposely and witli specific intent to do something which the law forbids ....
      It is not required that each of the conspirators participate in or have knowledge of all of the conspiracy’s operations. The guilt of a conspirator is not governed by the extent of his participation. lie need not know of all the alleged conspirators. Even if a defendant participated in the conspiracy to a degree less than that of his fellow conspirators or in a relatively subordinate or minor way, he is equally culpable, as long as lie became a member of the conspiracy with knowledge of its general scope and purposes.

      . It should be noted that Layne’s counsel did not object to this aspect of the charge, and did not call to the trial court’s attention any ambiguity which he found in the charge as given.

      . In light of our conclusion, we need not consider the government’s argument that 18 U.S.C. § 371 does not in fact require that conspirators intend to commit that act, such as use of the mails, which in fact establishes federal jurisdiction over the substantive crime involved. See United States v. Alsondo, 486 F.2d 1339, 1343 (2d Cir. 1973), cert. granted sub nom. United States v. Feola, 416 U.S. 935, 94 S.Ct. 1932, 40 L.Ed.2d 285 (1974); United States v. Mauro, 501 F.2d 45 (2d Cir. 1974), petition for cert. filed, 43 U.S.L.W. 3033 (U.S. July 25, 1974) (No. 74-9).


source: Caselaw Access Project

author: IRVING R. KAUFMAN, Chief Judge:

license: Public Domain

text:
    UNITED STATES ex rel. Lois SERO et al., Petitioners-Appellees, v. Peter PREISER et al., Respondents-Appellants.
    No. 299, Docket 74-1944.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 11, 1974.
    Decided Nov. 6, 1974.
    Certiorari Denied April 14, 1975.
    See 95 S.Ct. 1587.
    See also D.C., 372 F.Supp. 663.

      Ralph L. MeMurry, New York City, (Louis J. Lefkowitz, Atty. Gen., on the brief, Samuel A. Hirshowitz, New York City, of counsel), for respondents-appellants.
    Herman Schwartz, Amherst, N. Y. (Edward I. Koren, Amherst, N. Y., Elizabeth B. DuBois, Michael E. Smith, New York City, on the brief), for petitioners-appellees.
    Before KAUFMAN, Chief Judge, and SMITH and TIMBERS, Circuit Judges.
   IRVING R. KAUFMAN, Chief Judge:

This class action presents important procedural questions regarding the present scope of what once was termed “the most celebrated writ in the English law.” Blaekstone, Commentaries, Bk. III, 129. It also calls upon us to decide the more pressing human problem of the proper treatment to be afforded young adults sentenced under a New York statute, subsequently repealed, to four year reformatory terms after conviction for misdemeanors for which adults receive maximum terms of one year or less. The district court, after five opinions and more than two years of litigation, granted writs of habeas corpus ordering release or resentencing of all those serving reformatory sentences under New York Penal Law Article 75. For the reasons elaborated below, we affirm in part, and remand in part.

I.

Until very recently, New York provided a special sentence of imprisonment for most young adults, aged 16 to 21, regardless of the nature of the crimes they had committed. These youths would be given1 terms of unspecified duration, to terminate either upon discharge on parole, or after service of four years of confinement. N.Y. Penal Law, McKinney’s Consol. Laws, c. 40, §§ 75.00, 75.10 (McKinney 1967). Sentences were to be served in youth rehabilitation facilities [reformatories], which the Correction Law distinguished from state prisons. N.Y. Correction Law, McKinney’s Consol. Laws, c. 43, § 314 (McKinney 1968). See also id. § 315. The purpose of this reformatory sentence was “to provide education, moral guidance and vocational training for young offenders,” and to achieve this end the Department of Correction and the State Board of Parole employed special resources. Reformatories had special schools and shops, and parole officers working with young adult offenders had specialized caseloads. Thus, although the maximum terms that could be imposed upon adults for class A and class B misdemeanors were one year and three months respectively, N.Y. Penal Law § 70.15 (McKinney 1967), the special four year reformatory sentence was thought to be justified as a means to effect the unique rehabilitative goals envisioned for young adults. Practice Commentary to N.Y. Penal Law § 75.10 (McKinney 1967).

In 1970, the Correction Law was amended to abolish the distinction between reformatories and prisons. All institutions became correctional facilities, “used for the purpose of providing places of confinement and programs of treatment for persons in the custody of the department.’’ N.Y. Correction Law Article 4 [§ 70(2)] (McKinney Supp. 1974-75), replacing, inter alia, N.Y. Correction Law Articles 3-A, 3-B, 4, 5, 12A (McKinney 1968). Thereafter, inmates serving reformatory sentences as well as other prisoners could be assigned to any of New York’s correctional facilities, where the two groups would work, sleep, eat, and spend recreation time together. The statutory scheme no longer provided young adults with educational or vocational training different from that offered adult prisoners; those serving reformatory sentences also became subject to the same regulations and disciplinary sanctions as older inmates. The commendable goal was to afford young adult offenders, and indeed all prisoners, treatment in accordance with the rehabilitative aims of the New York Correction Law, see N.Y. Correction Law § 70(2); (McKinney Supp. 1974-75); 7 N.Y.C.R.R. § 250.2(a) (1970).

After the 1970 reform of the Correction Law, Lois Sero, Vanessa Carney, and Rita Varner, inmates of the Bed-ford Hills Correctional Facility, began this action under the Civil Rights Act, 42 U.S.C. § 1983 (1970), requesting the convening of a three-judge court, permission to proceed as a class action, and a declaratory judgment that the four year reformatory sentencing scheme, N.Y. Penal Law §§ 75.00, 75.10, was unconstitutional. They claimed that the challenged sections violated the equal protection clause of the Fourteenth Amendment by authorizing a term of confinement for reformatory-sentenced misdemeanants which was substantially longer than that provided for adults by N.Y. Penal Law § 70.15, since unique rehabilitative treatment was no longer provided to young adult inmates. The district court allowed the action to proceed on behalf of the class of reformatory-sentenced misdemeanants, Sero v. Oswald, 351 F.Supp. 522 (S.D.N.Y. 1972), and directed that the issue be submitted to a three-judge court, Sero v. Oswald, 355 F.Supp. 1231 (S.D.N.Y. 1973). After extensive discovery and argument of the case before the three-judge court, however, the Supreme Court decided, in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), that a challenge to the fact or duration of confinement could not be brought under § 1983. Accordingly, the three-judge court was dissolved, and the case was remanded to Judge Lasker for disposition as a petition for habeas corpus. The district judge allowed the case to continue as a class action, United States ex rel. Sero v. Preiser, 372 F.Supp. 660 (S.D.N.Y.1974).

Shortly after the petitioning class had moved for summary judgment, the four-year reformatory sentence provisions of N.Y. Penal Law Article 75 were prospectively repealed, N.Y. Laws 1974, ch. 652, § 7. The bill calling for repeal was sponsored and drafted by the' Department of Corrections. A memorandum submitted by Deputy Commissioner William C. Donnino to the State Assembly explained its purpose:

This bill is a logical culmination of the restructuring of the State correctional system which was commenced by the legislature in 1970 when it created the Department of Correctional Services and abolished the distinction between reformatories and State prisons.
As provided by the 1970 legislation, Article 4 of the Correction Law mandates that every institution operated by the Department of Correctional Services for the confinement of inmates . . . shall be a correctional facility maintained for the purpose of providing places of confinement and treatment with the objective of assisting inmates to live as law abiding citizens. Correctional facilities are classified by functions, such as residential treatment facilities, general confinement facilities and work release facilities. Individuals, regardless of the type of sentence they are serving, are confined in institutions best suited to their needs. For purposes of confinement, treatment, education and vocational training, persons serving reformatory or indeterminate sentences are treated in accordance with rehabilitative goals rather than the type of sentence they are serving. Since reformatories as well as the special purposes they historically served no longer exist, there is no longer a need for reformatory sentences.
Moreover, the sentence is unfair in that it treats young adults more harshly than adults.

This memorandum was submitted on the motion for summary judgment, and upon this and other grounds, Judge Lasker granted writs of habeas corpus to the class. United States ex rel. Sero v. Preiser, 377 F.Supp. 463 (S.D.N.Y.1974). He found that, although longer sentences could, under some circumstances, be imposed on young offenders without violating the Constitution, New York’s extended detention of the petitioning class ran afoul of the equal protection clause. He reasoned that since the treatment received by young adults, as well as all other conditions of custody, were the same as those afforded adult misdemeanants, any basis for longer periods of incarceration had disappeared. Thus, the court ordered the unconditional discharge of those who had already served adult-length terms, and provided for resentencing within thirty days of those who had not. Thereafter, this court denied a stay of the order of release but granted the respondents’ motion for an expedited appeal. We required, however, that those discharged report their addresses monthly to the releasing institution or parole office. By September 3, 1974, more than 500 members of the class had either been freed from correctional facilities or parole, or were in the process of being resentenced.

II.

Although this case presents a number of difficult procedural problems, resolution of several of those questions will be assisted by a more exact understanding of the nature of the petitioners’ substantive claim. Consequently we shall turn directly to the merits of the constitutional issue. The circumstances upon which the class relies in charging a denial of equal protection are relatively uncomplicated. Although the four-year reformatory sentence provisions of New York Penal Law Article 75 were prospectively repealed this year, each member of the class was sentenced under that Article to a term substantially in excess of the adult penalty for the same misdemeanor. And while prior to the 1970 reform of the Correction Law these extended sentences would have been served in reformatories, the petitioners claim that the treatment they now receive, as well as all 'other conditions of their custody, are identical to those afforded adult misdemeanants. It is the combination of these two factors to which they point as a deprivation of their fourteenth amendment rights.

We state preliminarily that neither of the conditions relied upon, considered separately, would entitle the class to the relief it seeks. The claim that longer periods of confinement may not constitutionally be imposed on young offenders has been frequently raised under the parallel provision of the Federal Youth Corrections Act, 18 U.S.C. § 5010 (1970), and uniformly rejected. See, e. g., Caldwell v. United States, 435 F.2d 1079 (10th Cir. 1970); Abernathy v. United States, 418 F.2d 288 (5th Cir. 1969); United States v. Rehfield, 416 F.2d 273 (9th Cir. 1969), cert. denied, 397 U.S. 996, 90 S.Ct. 1137, 25 L.Ed.2d 405 (1970); United States v. Dancis, 406 F.2d 729 (2d Cir.), cert. denied, 394 U.S. 1019, 89 S.Ct. 1640, 23 L.Ed.2d 44 (1969); Carter v. United States, 113 U.S.App.D.C. 123, 306 F.2d 283 (1962). The justification for this was best stated by Chief Justice [then Judge] Burger:

[T]he basic theory of that Act is rehabilitative and in a sense this rehabilitation may be regarded as comprising the quid pro quo for a longer confinement but under different conditions and terms than a defendant would undergo in an ordinary prison.

Carter v. United States, supra, 306 F.2d at 285. Nor is it necessary in this case to decide whether it is permissible or wise to confine youths in the same facility with adult offenders. Recently we upheld against an equal protection challenge the procedures by which juveniles were adjudicated delinquent under the New York Family Court Act, and committed to institutions also housing inmates prosecuted as adults. United States ex rel. Murray v. Owens, 465 F.2d 289 (2d Cir. 1972), cert. denied, 409 U.S. 1117, 93 S.Ct. 930, 34 L.Ed.2d 701 (1973). See also Sonnenberg v. Markley, 289 F.2d 126 (7th Cir. 1961), allowing the confinement in a federal penitentiary of youths- convicted under the Federal Juvenile Delinquency Act, 18 U.S.C. § 5031 et seq. (1970). We are, consequently, presented with two questions on this appeal: whether there is any basis in fact for disputing the claim that these young adult misdemeanants are given identical treatment under the same conditions as adults who have committed the same offenses; and whether the combination, of this circumstance with the extended reformatory sentence for young adults only, amounts to a denial of equal protection. We conclude that it does.

THE CONDITIONS OF CONFINEMENT

The proper response to the respondents’ claim that reformatory-sentenced inmates are in fact confined under conditions different from those imposed on adults can best be formulated by projecting the treatment of these petitioners against the background of the New York Correction Law and its elaboration in the Correctional Department’s Rules and Regulations, 7 N.Y.C.R.R. (1974). Not only does the Correction Law fail to give special treatment of any sort for young adult offenders, but the implementation of the departmental rules explicitly providing for confinement under identical conditions of both adult prisoners and those serving reformatory-length terms demonstrates that there is little merit to any claim that, despite the statutorily authorized treatment, there is- a de facto segregation of young adults from older inmates.

The facilities established by the recent restructuring of the Correction Law are classified in several ways. Because the institutions within the department must be maintained with due regard for the safety of the community and of those-in custody, the law provides for maximum, medium, and minimum security prisons. N.Y. Correction Law § 70(6)(a) (McKinney Supp. 1974-75). Regardless of security classification, facilities- are also designed to serve one or several of seven functions. Id. § 70(6) (b) . Three of these uses — as reception, detention, and diagnostic and treatment centers — are only of a transitory nature, since transfer may be effected once the contemplated temporary end has been served. See id. § 2(5), (7), (9). The remaining four — residential treatment facilities, correctional camps, general confinement facilities, and work-release facilities — are the heart of the correctional system. In different ways, they are intended to effect the ends for which custody is imposed. Obviously, each confines the inmates for purposes of punishment, deterrence, and isolation from the community to which they might occasion danger. N.Y. Penal Law § 1.05 (4, 5) (McKinney 1967). Each is also intended to rehabilitate the offender. Id. § 1.05(5). Thus the general confinement facilities aim at “treatment of persons under institutional programs oriented to education, vocational training and industry;” N.Y. Correctional Law § 2(10) (McKinney Supp. 1974-75); correctional camps are “maintained for the purpose of including conservation work in the program of inmates.” Id. § 2(8). Residential treatment facilities allow inmates “to go outside the facility during reasonable and necessary hours to engage in any activity reasonably related to [their] rehabilitation,” which may include on-the-job training and employment. Id. § 73 (1), (2). Work-release facilities may conduct work-release programs to achieve the same goal. Id. § 2(11).

The statute also provides another method of classification: departmental regulations must specify the age and sex of persons who may be confined at any of the different institutions. Id. § 70(5). No indication is given, however, that the division according to age should parallel the distinction elsewhere made by length of sentence between adults and young adults between the ages of 16 and 21.

Respondents contend that the failure of the Correction Law specifically to provide unique treatment for the class of young adults is not fatal, since the Department of Corrections has implemented that Law in order to confine almost all the class members in institutions reserved for offenders of similar age. More particularly, they claim that 90% of reformatory-sentenced misdemeanants are sent to the Elmira Correctional Facility, the Coxsackie Correctional Facility, or one of the camps under the jurisdiction of the Department. An examination of the departmental regulations makes clear, however, that even within those institutions youths between 16 and 21 are confined indiscriminately with adult offenders, although they must serve longer terms for identical crimes.

Pursuant to the statutory mandate, N.Y. Correction Law § 70(5) (McKinney Supp. 1974-75), that correctional facilities be classified according to the criteria discussed above, the Department of Corrections promulgated its Designation and Classification of Correctional Facilities, 7 N.Y.C.R.R. Subchapter A (1974). Respecting the institutions in which respondents claim most reformatory-sentenced inmates are confined, those provisions state:

100.35 . . . The Elmira Correctional and Reception Center shall be classified as a medium security facility to be used for the following functions :
(b) General confinement facility for males between the ages of 18 and 30; provided, however, that males between the ages of 16 and 18 and males older than 30 may be placed therein for general confinement purposes in accordance with Part 100 [sic] of this Chapter ; and
(d) Work release facility for eligible inmates.
■» * * * -x- *
100.45 . . . (b) [The Coxsackie Correctional Facility] shall be a correctional facility for males between the ages of 16 and 21; provided, however, that males over the age of 21 may be placed, therein for general confinement purposes in accordance with Part 150 of this Chapter.
(c) Coxsackie Correctional Facility shall be classified as a medium security correctional facility to be used for the following functions:
General confinement facility .
* * -x- * -x- *
100.65 . . . (a) There shall be in the department four [correctional camps], . . .
(b) Such institutions shall be correctional facilities for males between the ages of 16 and 25.
(c) [The four camps] shall be classified as minimum security correctional facilities to be used for the function of correctional camps.

Part 150, referred to in connection with the Elmira and Coxsackie Correctional Facilities, provides:

150.1 . . .
(a) The age ranges set forth in this Chapter are basically indicators of inmate maturity level. In any case where an inmate is not within the age range specified for an institution, such inmate may nevertheless be confined therein upon specific written approval of the commissioner or of a deputy commissioner if:
(1) There are reasonable grounds to believe that such person fits in with the maturity level indicated by the age range specified for that institution ; or
(2) Said institution offers a special program that can be of substantial benefit to the health, care or rehabilitation of the inmate.

We also note that Bedford Hills, the institution in whieh all representatives of the class are confined, is presently the only state prison for women. As to it the provisions state:

100.80
(b) Such institution shall be a correctional facility for females 16 years of age or older.
(c) Bedford Hills . . . shall be classified as a medium security correctional facility to be used for the following functions:
(1) General Confinement facility;
(4) Work release facility for eligible inmates.

Several obvious conclusions emerge from this brief review of the departmental regulations. Most significant is that, with the exception of Coxsackie, there is no institution in whieh young adult misdemeanants may not be mixed without distinction among older offenders. Moreover, even at Coxsackie Part 150 allows the detention of misdemeanants above the age of 21 who either may benefit from the program there, or are found to be at a level of maturity similar to the younger prisoners. Finally, we emphasized the admitted fact that there is no segregation of adults from young adults within the various facilities where the members of the class are confined. In each institution listed in-response to the petitioners’ Request for Admissions, reformatory-sentenced inmates are commingled with adults at work, in sleeping quarters, and in the mess hall. Nor are the petitioners provided separate recreational facilities, educational programs, vocational training, counselling, drug addiction, or other programs. All inmates, regardless of the type of sentence being served, are subject to the same rules and disciplinary sanctions and enjoy the same privileges.

Perhaps even more significant than the integration of class members with adult criminals at the institutions mentioned, though, is the fact that no young adult can be assured that he will remain in — or indeed that he will be initially sent to — one of those facilities. The Rules and Regulations provide, for example, that each of the maximum security prisons can be used as a detention center for those 16 and older, and as a general confinement facility for members of the petitioning class in accordance with the provisions of Part 150. 7 N.Y.C.R.R. §§ 100.5 (Attica), 100.10 (Auburn), 100.15 (Clinton), 100.20 (Green Haven), 100.25 (Ossining). Similar regulations apply to the other medium and minimum security institutions, 7 N.Y.C.R.R. §§ 100.27-100.94, most of which allow general confinement of young adults even without the approval required by Part 150. Nor is the likelihood of imprisonment in one of these facilities an empty threat. The Deputy Commissioner for Program Services in the Department of Correctional Services stated that 10% of those initially sent to Elmira, Coxsackie, or the correctional camps would be transferred after a determination that “the best interest of such inmate[s] requires a program with stronger custodial emphasis.” Finally, we find it difficult to credit to any firm departmental policy even the alleged present distribution of class members among the available facilities. For the only detailed survey — made by the Department’s Bureau of Research Statistics — of the places of confinement of misdemeanants serving reformatory sentences demonstrated that as of December 31, 1971, more than half of the 316 such offenders were in facilities other than those mentioned by the Deputy Commissioner. Seventy-eight young adults were confined in maximum security prisons like Attica, Clinton and Green Haven, and only 22 were in the four correctional camps.

THE REHABILITATIVE Quid Pro Quo

What we have said thus far leads us to the conclusion that there can be no rational support for the respondents’ final argument. Their contention is

that the quid pro quo of the extended reformatory sentence is rehabilitative treatment, and it is essentially irrelevant that a program of rehabilitation fitted to the needs of an individual inmate is either shared by other inmates or that a custodial regime suitable to the reformatory sentenced inmates may also be suitable for other inmates, or that reformatory sen-fenced inmates are not segregated from other inmates.

It is, of course, commendable that New York attempts to rehabilitate all convicted misdemeanants sentenced to terms of imprisonment. It is also praiseworthy that the state has tried to gear the various facilities within the jurisdiction of the Department of Corrections to achieve this end in a way which takes account of maturity, need, and the inmate’s willingness to change. And yet to uphold the provisions of Article 75 would mean that one sentenced pursuant to it could be confined for four years in the same institution, under identical conditions, and with exactly the same rehabilitative program as an adult whose term could not under the law exceed three months to one year.

Respondents attempt to justify the extended confinement of young offenders by arguing that the class also receives the benefit of a correspondingly longer rehabilitative program. We are unable to follow this sleight of hand. We do not deny that, where the conditions of detention cannot be characterized as punitive, such an argument has some force. In such instances an extended sentence afford youthful offenders “not heavier penalties and punishment than are imposed upon adult offenders, but the opportunity to escape from the physical and psychological shocks and traumas attendant upon serving an ordinary penal sentence while obtaining the benefits of corrective treatment, looking to . social redemption and restoration.” Cunningham v. United States, 256 F.2d 467, 472 (5th Cir. 1958).

Such was in fact the situation under the pre-1970 law applicable to young adult offenders. As the Practice Commentary to Section 75.10 — written by the present Commissioner of Corrections, Peter Preiser — stated: the “law did not recognize any distinction based upon type of offense in dealing with . . . convicted young offenders. The four-year period . . . provided was selected as a reasonable and meaningful period for the [rehabilitative] purposes” of the statute. Rather than serving punitive ends, the law sought to offer every young misdemeanant “education, moral guidance and vocational training” through the “specialized and concentrated resources” provided by the reformatories in which all were confined. Practice Commentary, supra.

But as is the practice elsewhere, New York has consistently recognized that its other penal institutions serve purposes in addition to rehabilitation. Explicit reference is made to the fact that confinement in those prisons serves the ends of punishment, isolation, and deterrence, N.Y. Penal Law § 1.05(4, 5) (McKinney 1967). For precisely that reason, adult sentences have been tailored to the gravity of the offense — not to the individual’s need for or amenability to rehabilitation. Id. at § 1.05(4). With the repeal of N.Y. Penal Law Article 75 (McKinney 1967), repealed, N.Y.Laws 1974, ch. 652, § 7, the state acknowledged the necessity of employing a similar limiting principle in sentencing young adults who, since 1970, have been confined in the same correctional facilities as adults.

Thus the present penal and correctional scheme leaves the class of reformatory-sentenced misdemeanants in the anomalous position of serving extended terms when “reformatories as well as the special purposes they historically served no longer exist . . . . ” They are, it is true, given rehabilitative treatment; but they are subject as well to the same punitive, deterrent, and isolating conditions as adult prisoners for substantially longer periods of time, and for this treatment we are unable to find any quid pro quo.

III.

Having examined the merits of the petitioners’ claims, we must still consider several vexing procedural issues: whether this habeas corpus proceeding is maintainable as a class action; whether, in light of 28 U.S.C. § 2241(d) (1970), the class may appropriately embrace all young adult misdemeanants held in custody by the state of New York, or must instead be limited to those in custody or convicted and sentenced in the Southern District of New York, where the action below was brought; and, finally, what action may be deemed to satisfy the exhaustion requirements upon which federal collateral relief to state prisoners is conditioned. For the reasons stated below, we find that the class was properly allowed to proceed as defined by the district court.

CLASS ACTION

Although habeas corpus proceedings are referred to as “civil proceedings,” the Federal Rules of Civil Procedure are applicable only “to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in civil actions.” Fed.R.Civ.P. 81(a)(2). The relevant statutory provisions, 28 U.S.C. § 2241 et seq. (1970), offer little help when the petitioners are numerous. Moreover, the “conformity” provision of Rule 81 has been interpreted by the Supreme Court to dictate explicit applicability of the Rules only in those areas of habeas practice which prior to the enactment of the Rules had utilized the modes of civil practice. Harris v. Nelson, 394 U.S. 286, 294, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969). Relying upon the significant expansion of the discovery provisions in the 1938 Rules, as well as the burden which their full implementation would impose upon prison officials, the Harris Court decided that the conformity clause did not permit use of Rule 33 interrogatories in habeas actions. Similar considerativa impel ns te renrlnrle that, t.he class action device should not be imported into collateral actions, at least in its TulTFugoFTis contemplated by Rule 23. Like Rule 33 discovery,"even the original and more restrictive version of Rule 23 which was adopted by the Rules' Enabling Act represented a rather “bold attempt” to encourage class actions, a form of relief traditionally confined to equity practice. C. Wright, Law of Federal Courts, § 72 at 306 (2d ed. 1970); Advisory Committee Notes, Fed.R.Civ.P. 23. There is little evidence, moreover, that even the narrower pre-1938 multi-party proceedings enjoyed any considerable application in habeas corpus actions. Note, Multiparty Federal Habeas Corpus, 81 Harv.L.Rev. 1482, 1493 (1968). Finally, we would hesitate to impose on judicial and correctional officials, by approving full employment of Rule 23, the very substantial burdens of discovery and proof which would be required to rebut even the most frivolous allegations— made “generally without the guidance or restraint of members of the bar,” Harris, supra, at 297, 89 S.Ct. at 1089— that an inmate’s complaint involved predominant questions of law or fact applicable to numerous other prisoners.

To say that the precise provisions of Rule 23 do not apply to habeas corpus proceedings, however, is toto cáelo different from asserting that we do not have authority to fashion expeditious methods of procedure in a specific case. Harris confirms the power of the judiciary, under the All Writs Act, 28 U.S.C. § 1651 (1970), to fashion for habeas actions “appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage.” 394 U.S. at 299, 89 S.Ct. at 1090. We find in the unusual circumstances of this case a compelling justification for allowing a multi-party proceeding similar to the class action authorized by the Rules of Civil Procedure. Our conclusion is based in large measure upon the nature of the claim here presented by Sero and the other young adult misdemeanants whom she would represent. As the discussion of that claim in the preceding section made clear, the charge that the four-year reformatory sentence violates equal protection is applicable on behalf of the entire class, uncluttered by subsidiary issues. Since the 1970 restructuring of the correctional system the treatment which young adults 'have received, as well as all other conditions of custody, have been identical to those afforded adult misdemeanants.

A number of other persuasive justifications enforce our conclusion that the class action device was appropriately used in this case. Because many of those serving reformatory sentences are likely to be illiterate or poorly educated, and since most would not have the benefit of counsel to prepare habeas corpus petitions, it is not improbable that more than a few would otherwise never receive the relief here sought on their behalf. See Developments in the Law — Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1170-71 (1970); Adderly v. Wainwright, 58 F.R.D. 389, 405 (M.D.Fla.1972). Considerations of economy also argue persuasively for such a result. The considerable expenditure of judicial time and energy in hearing and deciding numerous individual petitions presenting the identical issue is thereby avoided, Williams v. Richardson, 481 F.2d 358, 361 (8th Cir. 1973), as is the expense which would be incurred in appointing counsel for each individual who proceeded on his own.

Although we trust it is clear that the precise provisions of Rule 23 are not applicable to these proceedings, our conclusion that an analogous procedure may be employed in-this case is bolstered by the Federal Rules’ delineation of the circumstances which make multi-party actions appropriate. Four prerequisites to a class action are specified by Fed.R.Civ.P. 23(a): (1) the class must be so numerous that joinder of all members is impracticable; (2) there must be questions of law or fact common to the class; (3) the claims of the representative parties must be typical of those made by the class; and (4) it must be shown that the representative parties will fairly and adequately protect the interests of the class. There is no question but that joinder in this case would have been impracticable, if not impossible. The more than 500 members of the class — many of them unidentifiable at the time the action was commenced — far surpass the requirements of numerousness which have been imposed in more straightforward civil actions. See, e. g., Cypress v. Newport News Gen. & Nonsectarian Hosp. Assn., 375 F.2d 648, 653 (4th Cir. 1967) (eighteen); Citizens Banking Co. v. Monticello State Bank, 143 F.2d 261, 264 (8th Cir. 1944) (forty). And although we believe that more stringent standards may be appropriate in deciding whether a habeas action presents substantial and common questions of law or fact, it is apparent that the complaint of the representative parties in this suit states a clear and unitary allegation on behalf of all young adult misdemeanants. Cf. Gesicki v. Oswald, 336 F.Supp. 371 (S.D.N.Y.1971), aff’d, 406 U.S. 913, 92 S.Ct. 1773, 32 L.Ed.2d 113 (1972). Although we are informed that the facilities at Bedford Hills differ from those at many of the other state correctional institutions, that factor is irrelevant to our purposes. This is so because the petitioners do not charge that the state has failed to confine them in the existing institutions best suited to their needs, but that an unconstitutional distinction is made among inmates of each institution — all receiving the same treatment— solely by reason of age. Finally, we find it clear that the representative parties have fairly and adequately protected the interests of the class. The district court found, and we agree, that the parties have been represented throughout by conscientious and experienced counsel, 351 F.Supp. at 528, and they have vigorously prosecuted the claim on behalf of the other members.

SECTION 2241(d)

Even if this action may be appropriately maintained "as a class action, the respondents claim that the district court did not have jurisdiction over all the members of the class to whom its decree would extend. Although all the representative petitioners were, at the time this action was begun, confined at the Bedford Hills Correctional Facility, we are told that some members of the class were neither confined nor convicted within the Southern District of New York. Therefore, the argument concludes, the district court was deprived of jurisdiction as to these persons by 28 U.S.C. § 2241(d) (1970), which provides :

Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him .

A proper understanding of § 2241(d) requires a brief elucidation of its relationship to § 2241(a).

The general grant of habeas corpus jurisdiction has long provided that the Supreme Court, any of its justices, any circuit judge, or any district court could grant the writ “within their respective jurisdictions.” 28 U.S.C. § 2241(a) (1970), formerly 28 U.S.C. § 452 (1940). See Act of Feb. 13, 1925, ch. 229, § 6, 43 Stat. 940; Rev.Stat. § 752; Act of Feb. 5, 1867, ch. 28, 14 Stat. 385. In 1948 that provision was interpreted to mean that a district court lacked subject matter jurisdiction to grant the writ on behalf of a prisoner who was not confined within its territorial boundaries. Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948). It rapidly became apparent, however, that Ahrens was a self-inflicted judicial wound. The court nearest the place of confinement was, perhaps more often than not, by no means the most convenient forum for resolution of the dispute raised by a habeas petition. All the material events would usually have taken place, and all the records and witnesses were generally to be found, near the court which had originally imposed the confinement. Moreover, restriction of jurisdiction to the locus of confinement had the singular disadvantage of imposing on those district courts near detention facilities the burden of entertaining all collateral actions brought by inmates in those prisons. In an effort to rescue the courts from a calamity of their own making, Congress in 1966 enacted § 2241(d), which specified that a habeas corpus petition could also be filed in the federal district in which the court which had entered judgment and sentence was located. See S. Rep. No. 1502, 89th Cong., 2d Sess. (1966); H.R. Rep. No. 1894, 89th Cong., 2d Sess. (1966).

Helpful though it was, the remedy was not complete enough to undo the damage done by Ahrens’s narrow jurisdictional interpretation of § 2241(a). The inadequacy was most convincingly demonstrated by the problem of interstate detainer. In Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), an inmate confined in an Alabama state prison after a felony conviction applied for habeas corpus relief in the Federal District Court for the Western District of Kentucky, seeking to attack a pending Kentucky indictment. Relying in large measure upon the liberalization of intrastate habeas effected by § 2241(d), as well as the post-Ahrens provision of 28 U.S.C. § 2243 (presence of petitioner not required when application presents only issues of law), the Court held that:

So long as the custodian can be reached by service of process, the court can issue a writ “within its jurisdiction” [for purposes of § 2241 (а) ] . . ., even if the prisoner himself is confined outside the court’s territorial jurisdiction.

410 U.S. at 495, 93 S.Ct. at 1130. With respect to Braden’s claim the state of Kentucky was the real custodian, since for purposes of the detainer pursuant to the pending indictment the Alabama correctional officials acted only as agents. Thus the federal district court in Kentucky had jurisdiction to issue the writ.

This straightforward reading of § 2241(a), as the Court certainly realized, was not without its effect upon the interpretation to be given § 2241(d). If the original jurisdictional grant in § 2241(a) was to be construed as coextensive with the scope of service of process, see Fed.R.Civ.P. 4(f), then a jurisdictional reading of § 2241(d) would render that subsection merely repetitious. The Braden Court recognized, further, that the 1966 amendment was motivated, at least in part, by “a desire to insure that the disputes could be resolved in the most convenient forum,” 410 U.S. at 497 n. 13, 93 S.Ct. at 1131, i. e. by considerations traditionally proper to venue. We think it clear, from both the Court’s language' and the language of § 2241(d), that it makes more sense to read this section as a provision fixing venue and aimed at problems of judicial administration whose solution lies in the balance of convenience among various courts. Cf. 83 Harv.L.Rev. at 1161-65.

Before proceeding to a discussion of the venue requirements for this class action, however, we feel constrained to indicate that we need not rest our decision that the district court had jurisdiction over the entire class upon our interpretation of § 2241(d). For even if — contrary to the clear implication of Braden — that section is to be read as jurisdictional, we find compelling reasons for concluding that Congress did not intend the section to preclude determination in one forum of multi-party actions. The parallel practice in Rule 23 class actions provides a basis for our decision. Although the statutory grant of diversity jurisdiction, 28 U.S.C. § 1332 (1970), has from its inception been interpreted to require complete diversity among opposing parties, Strawbridge v. Curtiss, 7 U.S. [3 Cranch] 267, 2 L.Ed. 435 (1806), it is almost equally well-settled that a class action may satisfy § 1332 if there is diversity only between the representative plaintiffs and the defendants. Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673 (1921). The distinction is not difficult to fathom. Limitation of the class in order to achieve diversity would also

result in the determination of the rights of most of the class by a decree rendered upon a theory which may be repudiated in another forum as to a part of the same class.
. If the decree is to be effective and conflicting judgments are to be avoided, all of the class must be concluded by the decree.

Id. at 366-367, 41 S.Ct. at 342. Similar considerations argue persuasively for a like interpretation of § 2241(d), if, indeed, it is to be read as jurisdictional. The interests of judicial economy, the need for fairness among prisoners similarly situated, and the desirability of certainty in the law, all demand a conelusion that will not deal with only some members of the petitioning class, while it leaves others open to the possibility of contrary result in another court. Since the representatives of the class in this case — all inmates at the Bedford Hill Correctional Facility — could properly have proceeded individually in the court below, we find that Judge Lasker correctly concluded that he had jurisdiction over the entire class.

Whether venue in the Southern District of New York was proper as to all class members is a question which need not detain us. The practice in Rule 23 class actions once again furnishes a guide to our decision. Although the same statutory provisions determine venue for Rule 23 as for non-class actions, 28 U.S.C. § 1391(a) (1970) (diversity actions may be brought only. in the district where all plaintiffs or all defendants reside, or in which the claim arose) may be satisfied if only the named parties to a class action meet its requirements. 3B Moore’s Federal Practice ¶ 23.96 (1974); C. Wright, Law of Federal Courts § 72, at 315 (2d ed. 1970). See Dale Electronics, Inc. v. R.C.L. Electronics, Inc., 53 F.R.D. 531, 538 (D.N.H.1971); Research Corp. v. Pfister Assoc. Growers, Inc., 301 F.Supp. 497, 501 (N.D.Ill.1969). Here too, the rationale is not difficult to comprehend. The same need for consistency, fairness and economy which dictated a common-sense construction of the jurisdictional provisions applies as well to those determining venue.

It is clear to us that the representative petitioners satisfy the habeas corpus venue requirements, whether they are to be defined by § 2241(d) or otherwise. Each named petitioner was confined in the district in which the action was brought. Moreover, little added inconvenience was imposed upon the respondents by requiring them to defend against the other class members’ claims, which were identical to those of the representative parties.

EXHAUSTION

The requirement that a state prisoner must first exhaust all state remedies before proceeding with a collateral attack in the federal court is set forth in 28 U.S.C. § 2254(b). The exceptions to this rule are instances where “there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.” Id. It is clear that two of the named plaintiffs, Lois Sero and Rita Varner, as well as another member of the class, Myletta Joyner, have fully complied with the provisions of § 2254 (b). See 351 F.Supp. at 525 n. 3. Thus, the only question with which we are presented is whether their actions may be taken to fulfill the exhaustion requirements on behalf of the class. We find that they may.

The statutory exhaustion provisions serve two salutary purposes. Depriving state courts of the first opportunity to pass on federal constitutional questions would eventually have the unhappy effect of making those courts callous to and ignorant of federal claims. Moreover, other considerations of federalism make clear that it is wise that a federal court decline to inject itself into the orderly administration of state judicial business. But state remedies have been characterized as “ineffective” for purposes of § 2254 (b) not only because they were procedurally inadequate, but also where recent state holdings on a question of substantive law demonstrated that relitigation of the same issue would have proven futile. See, e. g., Reed v. Beto, 343 F.2d 723 (5th Cir. 1965), aff’d on other grounds sub nom., Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Evans v. Cunningham, 335 F.2d 491 (4th Cir. 1964); Dana v. Tracy, 360 F.2d 545, 548 (1st Cir.) (dictum), cert. denied, 385 U.S. 941, 87 S.Ct. 311, 17 L.Ed.2d 221 (1966). This “futility” doctrine, of course, comports with the policies underlying the demand for exhaustion in the ordinary case. We must be sure that the state court has had the opportunity recently to consider the identical claim. Moreover, its decision of the issue must be so clear that any further consideration given similar cases by the state court is likely to be summary, so that a federal court entertaining such a case is not likely to disrupt state judicial administration.

These same considerations lead us to the conclusion that the exhaustion requirements for the petitioning class have been met by the actions of Sero, Varner, and Joyner. The state court proceedings brought by these three presented an identical challenge to the constitutionality of §§ 75.00 and 75.10. Applications for leave to appeal to the New York Court of Appeals were denied on April 20 and on May 16, 1972, less than six months before Judge Lasker’s first decision permitting class status. Under these conditions, we are unwilling to impose upon other members of the class the burden of inundating the state courts with applications which would be as time-consuming as they would be useless.

IV.

What we have said thus far demonstrates that issuance of writs granting release was proper as to those young adults — either in confinement or on parole — who served more time in correctional facilities than the maximum terms provided for adults guilty of the same misdemeanors. We also believe it is clear that those who on the effective date of the district court’s decree had not yet been released on parole, but had at that time served less than the corresponding adult terms, were properly entitled to resentencing. There remains to be determined, however, the treatment due those class members who were already on parole at the time of the decree below, after having served shorter terms in prison than would have been given to adult class A and class B misdemeanants. As to this group the district judge granted release to those whose total time in custody exceeded the maximum adult sentence, and ordered resentencing for the remainder. With this latter determination, we do not agree.

Although extensive discovery was had on the issue of ti’eatment given young adults in correctional facilities, the only evidence relevant to the conditions of parole discloses an issue which we are unable to resolve on the record before us. See United States ex rel. Bradshaw v. Alldredge, 432 F.2d 1248 (3d Cir. 1970). The Statement of Substantial Undisputed Facts submitted by the petitioners on their motion for summary judgment states:

17. There is no special parole service for reformatory-sentenced offenders except that assigned case loads of “Youthful Offenders” (males only) are made to certain parole officers in New York City.

The respondents’ answer, however, “dispute [d] the allegation that the only special parole service which is available to reformatory sentenced inmates concerns Youthful Offenders.” Although Judge Lasker properly found that identical conditions of confinement justified release or resentencing as to part of the class, he made no such determination regarding the parole services available to young adults and adults respectively. Because the provision of unique services would under some circumstances justify a longer period of parole, we remand this issue for further factual determinations and disposition consistent with this opinion. In all other respects we affirm.

      . The inmates also attacked as unconstitutional the provisions of the N.Y. Correction Law, §§ 803, 804 (McKinney 1968) granting good behavior allowances only to those offenders serving indeterminate and definite sentences. This claim has been rendered moot by the enactment of N.Y.L.1974, chs. 652, 653, retroactively granting such time off to members of the petitioning class.
      In addition, the class claimed a violation of due process in New York’s failure to provide a hearing on reformability before the imposition of a reformatory sentence. Because of the disposition it reached on the equal protection claim, the district court found it unnecessary to rule on this issue.

      . Judge Lasker also permitted the class to proceed simultaneously with its declaratory judgment claim under § 1983.

      . We find unpersuasive respondents’ argument, raised for tlie first time on appeal, that the district court improperly considered Donnino’s statement in granting summary judgment and the writs requested. The answer to the petitioners’ Statement of Substantial Undisputed Facts submitted on the motion for summary judgment admitted that, in making the statement to the Assembly, Donnino had acted as the agent of the Commissioner of Corrections.

      . The district court also granted summary judgment on the § 1983 claim, declaring Article 75 unconstitutional to the extent that it authorized the imposition of extended sentences on members of the class. Because of our conclusion on the habeas corpus claims of the reformatory-sentenced inmates, we need not consider whether such a declaratory judgment would be permitted under Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).

      . It is interesting to note, however, that the act also provides: “Such commitment shall not exceed the term which might have been imposed had he been tried and convicted of the alleged violation.” 18 U.S.C. § 5034 (1970). See also Harvin v. United States, 144 U.S.App.D.C. 199, 445 F.2d 675 (en banc) (interpreting parallel provision of the Youth Corrections Act), cert. denied, 404 U.S. 943, 92 S.Ct. 292, 30 L.Ed.2d 257 (1971).

      . We emphasize that the integration of adults and young offenders provided for by the department’s rules is carried out in practice. The affidavit (dated May 10, 1974) of Edward Elwin, Deputy Commissioner for Program Services in the Department of Correctional Services, admits that the Elmira, Coxsackie, and correctional camp facilities “are basically established and operated for the rehabilitation of young offenders. Although individuals up to SO years of age might be placed in Elmira, the other facilities are primarily for individuals 21 years of age or younger.” [Emphasis supplied.] As 7 N.Y.C.R.R. § 100.65 makes evident, the correctional camps are used for the detention of those between the ages of 16 and 25. And some idea of the frequency with which Part 150 is used at the Coxsackie Correctional Facility may be gathered from the fact that, as of December 31, 1971, 13% of those confined there were serving indeterminate sentences.

      . Indeed, it has been more than once suggested that the prisons of our country have not been rehabilitating prisoners. See, e. g., W. Amos, The Philosophy of Corrections: Revisited, 38 Federal Probation 43, 45 (1974); I. Kaufman, Prison: The Judge’s Dilemma, 41 Fordham L.Rev. 495, 499-503 (1973); Hearings before the Sen. Jud. Comm. on Juvenile Delinquency, 91st Cong., 1st Sess., 5194 (1971).

      . In finding class treatment appropriate we do not ignore two further peculiarities of the statutory provisions applicable to habeas corpus proceedings. It is true that, although two earlier versions of the Great Writ were phrased in the plural, Act of Aug. 29, 1842, ch. 257, 5 Stat. 539; Act of Mar. 2, 1833, ch. 57, § 7, 4 Stat. 634, the present Code speaks only in the singular, see, e. g., 28 U.S.C. § 2241 (1970). It seems clear, however, that the change was intended to be more stylistic than substantive, and the courts have frequently entertained joint applications by petitioners convicted at a joint trial. See, e. g., United States ex rel. Poret v. Sigler, 361 U.S. 375, 80 S.Ct. 404, 4 L.Ed.2d 380 (1960); Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923); United States ex rel. Kozicky v. Fay, 248 F.2d 520 (2d Cir. 1957), cert. denied, 356 U.S. 960, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958).
      A less frivolous objection to issuance of the writ on behalf of a large class is that 28 U.S.C. § 2242 (1970) requires that an “[a]p-X>lication ... be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf.” We find here, however, convincing reasons for holding that the application for the petitioners — all between the ages of 16 and 21 at conviction — has been executed by “someone acting in [their] behalf.” This court has recognized for more than half a century that “[t]here are many instances and circumstances under which it may not be possible nor feasible that the detained person shall sign and verify the complaint. Inability to understand the English language or the situation . . . , impossibility of access to the person, or mental incapacity are all illustrations of a proper use of the ‘next friend’ application.” United States ex rel. Bryant v. Houston, 273 F. 915, 916 (2d Cir. 1921). It would seem appropriate to recognize that the age and competence of most members of the class make it unlikely that they would avail themselves of the relief here sought on their behalf.

      . What we have said, supra, concerning the nature of the claim made by all members of the class confirms our view that this action is at least as appropriate for class treatment as those to which the further provisions of Rule 23 would apply. It is clear that subsection 23(b) states conditions in addition to those set out in the first subsection of the rule, since it defines the nature of claims most appropriately entertained in a unitary proceeding. But the situation before us is strongly analogous to the (b) (2) class action. in which “the party opposing the class has acted or refused to act on grounds generally applicable to the class . . . .” Fed.R.Civ.P. 23(b)(2). Further, a decision on the constitutionality of detention under Article 75 would, as a practical matter, most likely be dispositive of the interests of the other members not parties to the adjudication. Cf. Atlantis Dev. Corp. v. United States, 379 F.2d 818, 826-829 (5th Cir. 1967); Nuesse v. Camp, 128 U.S.App.D.C. 172, 385 F.2d 694, 701-702 (1967).

      . We are mindful of the Supreme Court’s recent ruling affording stricter enforcement to the jurisdictional provisions defining “amount in controversy,” 28 U.S.C. § 1332 (1970). Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973). See also Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). These decisions, however, rested in large measure on the need to protect the jurisdictional limitation against expansion by aggregation of claims, 394 U.S. at 339-340, 89 S.Ct. 1053, or by allowing “ ‘one plaintiff [to] . ride in on another’s coattails.’ ” 414 U.S. at 301, 94 S.Ct. at 512. This consideration is irrelevant to the present action. We do not have before us a case where the class action device would admit into the federal court petitioners who otherwise would be unable to meet jurisdictional requirements, since each member could proceed independently in the jurisdiction of his confinement or conviction. A reading of § 2241(d) consistent with Supreme Tribe of Ben-Hur not only avoids the undesirable inconsistencies upon which that decision turned, but also has the advantage of reducing litigation which could otherwise go forward only in numerous individual actions.

      . In Braden — since the case involved the problem of interstate detainer — there was no applicable venue statute. The Court nonetlieless based its choice of forum upon “traditional venue considerations.” 410 U.S. at 493, 499 n. 15, 93 S.Ct. 1123.

      . Because we find it impossible to assess the likelihood that these inmates will be released on parole before they have served adult-length sentences, we find resentencing a more appropriate treatment than that given the remainder of the class, infra.