author: WILLIAM E. MILLER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jack Anthony LUCIDO, Defendant-Appellant.
    No. 72-2111.
    United States Court of Appeals, Sixth Circuit.
    Argued June 8, 1973.
    Decided Oct. 24, 1973.
    Philip A. Gillis, Detroit, Mich., for defendant-appellant.
    Fred M. Acuff, Jr., Appellate Section, Crim. Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee; Ralph B. Guy, Jr., U. S. Atty., E. D. Mich., Sidney M. Glazer, Atty., Dept, of Justice, Haskell Shelton, Laurence Leff, Sp. Attys., Dept, of Justice, Washington, D. C., on brief.
    Before PHILLIPS, Chief Judge, and MILLER and LIVELY, Circuit Judges.
   WILLIAM E. MILLER, Circuit Judge.

This case is an appeal from a conviction in the district court on one count of using interstate telephone facilities to carry on a gambling operation. The defendant, Jack Lucido, was tried on a three count indictment, one conspiracy count under 18 U.S.C. § 371, and two substantive counts of using interstate telephone facilities to carry on a gambling operation in violation of 18 U.S.C. § 1952. The jury returned a verdict of guilty on one of the substantive counts and not guilty on the other. It acquitted the defendant on the conspiracy charge.

Appellant’s principal contention on appeal is that his acquittal on the conspiracy charge entitles him to a new trial on the substantive charge because of prejudice resulting from the introduction of hearsay evidence. Since we deem this issue to be dispositive other issues will not be discussed.

A major part of the evidence introduced against Lucido by the government was the testimony of two I.R.S. agents concerning telephone conversations of a third person, one Donald Dawson, while he was talking to some one named “Jackie” in Centerline, Michigan, on December 20 and 21, 1969. This testimony is the fruit of eavesdropping conducted by the government agents against Dawson. The agents were located in a motel room in Phoenix, Arizona, adjacent to a motel room occupied by Dawson and his wife. The agents listened through a door between the two rooms to Dawson’s end of the conversation with “Jackie”. The agents’ testimony of what Dawson said when used against the appellant is, of course, hearsay. Although such evidence is normally barred from use by the hearsay exclusionary rule, it was admitted by the trial court as statements of a co-conspirator in the furtherance of a conspiracy, and hence as an exception to the hearsay rule. However, acquittal on the conspiracy charge makes necessary inquiry into the possible prejudice that resulted from the introduction of this evidence. Absent the conspiracy charge was there any other exception to the hearsay rule that would make the agents' testimony concerning Dawson’s conversations admissible against the appellant ?

The government urges that such testimony would be admissible against Lucido under the rule that declarations made in furtherance of an illegal joint venture are admissible against the other partners in crime. See United States v. Jones, 438 F.2d 461 (7th Cir. 1971); United States v. Holmes, 452 F. 2d 249 (7th Cir. 1971), cert. den. 405 U. S. 1016, 92 S.Ct. 1291, 31 L.Ed.2d 479 (1972); United States v. Rinaldi, 393 F.2d 97 (2d Cir. 1968), cert. den. 393 U.S. 913, 89 S.Ct. 233, 21 L.Ed.2d 198 (1968). This well-recognized rule is applicable only in situations where independent evidence establishes prima facie an illegal joint venture. E. g. McMahan v. United States, 424 F.2d 1216 (7th Cir. 1970). No such independent evidence exists in this case. Since such testimony is the basic element in the circumstantial evidence against Lucido, its prejudicial effect on the substantive charge is unmistakable.

This case is an example of the potential hazards to a fair trial when the charge of conspiracy coupled with substantive charges confers upon the government a substantial procedural advantage. The Supreme Court has long recognized the dangers incident to the use of a conspiracy charge by government prosecutors. E. g. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940). This is not to say that the selective use of the conspiracy charge may not be a valid and necessary practice in proper law enforcement. What must be guarded against are the potentialities for injustice so clearly perceived by Mr. Justice Jackson in his oft-quoted statement, in his concurring opinion in Krulewitch v. United States, 336 U.S. 440, 457, 69 S.Ct. 716, 725, 93 L.Ed. 790 (1949):

There is, of course, strong temptation to relax rigid standards when it seems the only way to sustain convictions of evildoers. But statutes authorize prosecution for substantive crimes for most evil-doing without the dangers to the liberty of the individual and the integrity of the judicial process that are inherent in conspiracy charges. We should disapprove the doctrine of implied or constructive crime in its entirety and in every manifestation. And I think there should be no straining to uphold any conspiracy conviction where prosecution for the substantive offense is adequate and the purpose served by adding the conspiracy charge seems chiefly to get procedural advantages to ease the way to conviction.

Although Mr. Justice Jackson was concerned with review of a conspiracy conviction, the spirit of his condemnation is equally applicable in this case.

Since the jury has found that the conspiracy was not established, the government’s admissible evidence on the substantive charge is vastly reduced. The purpose of rules of evidence is to preserve procedural fairness for all parties to a proceeding. To permit hearsay evidence to support a substantive charge on the theory of the “conspiracy” exception where the charge of a conspiracy has been specifically rejected by the jury would not only undercut the very foundation of the exception, but would magnify the dangers to the liberty of the individual and the integrity of the judicial process which gave Mr. Justice Jackson so much concern in the conspiracy cases. The hearsay was admitted below only because of the conspiracy charge which was not established. Therefore, the defendant is entitled to a new trial on the substantive charge. United States v. Johnson, 334 F.Supp. 982 (1971), aff’d 462 F.2d 608 (8th Cir. 1972).

Reversed and remanded for a new trial.

      . The government’s entire case against Lucido consists of circumstantial evidence; however, much of it pertains to Dawson who is not a defendant. The I.R.S. agents’ recollection of the telephone conversations was that they concerned discussions of placing and receiving bets. The agents also testified to a search of Dawson’s home and the discovery therein of bet sheets and other indicia of gambling activities.

      . The legality of this eavesdropping is not raised on appeal. Our disposition of this case makes it unnecessary for us to express an opinion on the matter.

      . The cited case refers to the co-conspirator rule; however, the analysis for the illegal joint venture rule must be, by its very nature, the same.

      . Even though the court may have charged the jury to disregard the hearsay evidence in considering the substantive charges, the re-suit would be the same since the record is barren of any other evidence on the substantive charges.


source: Caselaw Access Project

license: Public Domain

text:
    John Henry HEAD et al., Plaintiffs-Appellants, v. TIMKEN ROLLER BEARING COMPANY et al., Defendants-Appellees.
    No. 72-1994.
    United States Court of Appeals, Sixth Circuit.
    Argued April 4, 1973.
    Decided Oct. 12, 1973.

      William D. Wells, New York City, for appellants; Irwin W. Barkan, Barkan, Barkan & Neff, Columbus, Ohio, on brief.
    Nancy E. Stanley, Washington, D. C., for United States, amicus curiae; William A. Carey, Gen. Counsel, Julia P. Cooper, Associate Gen. Counsel (Acting), Beatrice Rosenberg, Joseph T. Eddins, Attys., E.E.O.C., Washington, D. C., on brief; Howard Besser, E.E.O.C., Cleveland, Ohio, of counsel.
    Lawrence D. Stanley, Columbus, Ohio, for appellees; David M. Selcer, Porter, Stanley, Platt & Arthur, Columbus, Ohio,. John G. Ketterer, John F. Buch-man, Day, Ketterer, Raley, Wright & Rybolt, Canton, Ohio, on brief; Clay-man, Jaffy & Taylor, Columbus, Ohio, of counsel.
    Before WEICK, MILLER and KENT, Circuit Judges.

       Judge W. Wallace Kent died May 28, 1973.

   WILLIAM E. MILLER, Circuit Judge.

This is an appeal by the plaintiffs from an order by the district court in a civil rights case finding unlawful employment discrimination but denying relief. Thirteen named plaintiffs, twelve blacks and one white, all employees of Timken Roller Bearing Company (herein the Timken Company or Timken) brought this class action on behalf of themselves and all similarly situated employees in the Columbus, Ohio, plant of Timken. The complaint alleged racial discrimination by Timken and the labor union representing Timken’s employees at the Columbus plant, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.

The gravamen of the complaint is that Timken and the labor union had agreed on a system of seniority and transfer that effectively denied blacks the opportunity to obtain many jobs that prior to the effective date of the Civil Rights Act of 1964, had been assigned almost exclusively to whites. The suit was dismissed as to the labor union and no appeal is taken from such dismissal.

The court below divided the consideration of the case into two time periods, pre-1968 and post-1968. The significance of the demarcation is that in 1968 the Timken Company changed from a departmental seniority transfer system to a plant-wide seniority transfer system. Some limited bid occupations were exempt from the plant-wide system. The entire pre-1968 system and the limited bid provision of the post-1968 system were challenged as discriminatory by the plaintiffs. The plaintiffs also moved at the close of their evidence to amend their complaint to allege an additional cause of action under the Civil Rights Act of 1866, 42 U.S.C. § 1981, specifically to obtain the benefit of alleged racially discriminatory activities by the company prior to the effective date of Title VII (July 2, 1965).

The court below denied the motion of the plaintiffs to amend their pleadings. It also declined to grant any relief to the plaintiffs despite its holding that Tim-ken had violated the Civil Rights Act of 1964. The court thus refused to enter an injunction against Timken, or to award back pay or reasonable attorney’s fees as prayed for. From that decision the plaintiffs have appealed.

Four issues are presented: (1) Whether the court below erred in denying the plaintiffs’ motion for leave to amend; (2) Whether the court below erred in not awarding back pay to the plaintiffs despite its holding that prior to 1968 Timken had violated Title VII; (3) Whether the court erred in not enjoining Timken’s limited bid system; and (4) Whether the court abused its discretion in not awarding reasonable attorney’s fees to the plaintiffs.

Under Rule 15(b) of the Federal Rules of Civil Procedure, the federal courts are obligated freely to allow amendments to the pleadings. If the amendment is not timely the court must weigh the cause shown for the delay against the resulting prejudice to the opposing party. In Nevels v. Ford Motor Co., 439 F.2d 251, 257 (5th Cir.1971), the court said:

While it is generally true that leave to file amendments should be freely given, Fed.R.Civ.P. 15(a), amendments should be tendered no later than the time of pretrial, unless compelling reasons why this could not have been done are presented. [A trial judge’s] decision must weigh good cause shown for the delay in moving, vis a vis dilatoriness of counsel resulting in last minute surprise and inability of opposing counsel to meet the tendered issue. See Albee Homes, Inc. v. Lutman, 3 Cir. 1969, 406 F.2d 11, 14; Inland Container Corp. v. Atlantic Coast Line R.R., 5 Cir. 1959, 266 F.2d 857, 861, 3 J. Moore, Federal Practice §§ 15.-08(4), 16.12 (2d ed. 1968).

Rule 15(b) is not a carte blanche, allowing parties to amend their pleadings at any time. Proper analysis is, as stated, to weigh the cause shown for the delay against the resulting prejudice to the opposing party.

Admittedly, the district court did find pre-1965 discrimination and the plaintiffs insist, therefore, that the issue whether the company discriminated in the past was actually litigated in the case. This argument presents two problems germane to appropriateness of the denial of leave to amend. First, there was more presented by the proposed amendment than an issue of pre-1965 discrimination. The issue of whether the defendants were liable under § 1981, even granting discrimination, would also have to be litigated. Secondly, the prejudice to Timken, if any, and what it would have to prove in order to defeat the claim would also have to be considered. The plaintiffs would not have a significantly heavier burden but Timken would indeed be required to offer evidence much different from that which it would be expected to offer against the plaintiffs’ other claims.

Was there good cause for the delay and if so, how does it weigh against the factors already noted? The plaintiffs insist that the discovery of “new” law justified the delay. This so-called new law was the case of Brown v. Gaston County Dyeing Machine Co., 457 F. 2d 1377 (4th Cir. 1972). The plaintiffs’ view is that this case was a novel decision articulating a new theory of damages. Brown perhaps is the first case actually to hold that pre-Title VII acts of racial discrimination in employment may be remedied by back pay under § 1981. However, even the members of the court deciding Brown were in disagreement as to the novelty of the decision. We find it unnecessary, however, to venture an opinion on this topic. Whether Brown was the first case to award back pay for pre-Title VII racial discrimination in employment is largely irrelevant. The plaintiffs cite in their brief numerous cases for the proposition “that § 1981’s applicability extends to private acts of racial discrimination in employment and that it is concurrent with and independent of Title VII’s applicability.” These authorities, (Caldwell v. National Brewing Co., 443 F.2d 1044 (5th Cir. 1971), cert. den. 405 U.S. 916, 92 S.Ct. 931, 30 L.Ed.2d 785 (1972), being the leading case) do establish § 1981 as a separate and concurrent cause of action with Title VII. The court in Caldwell held that a person may purposely avoid filing with the Equal Employment Opportunity Commission and seek an independent remedy for employment discrimination under § 1981. These decisions make it apparent that back pay for pre-Title VII racially discriminatory acts in employment was potentially available under § 1981 before the Brown decision. We find therefore that there was no just cause for delay and that the district court’s denial of the motion for leave to amend the pleadings was not an abuse of its discretion.

Did the district court err in not awarding back pay to the plaintiffs despite its holding that prior to 1968 Timken had violated Title VII? On this issue we are concerned only with a time period beginning July 2, 1965, the effective date of Title VII, and ending November 4, 1968, the termination date of Timken’s unit or departmental seniority system.

The district court held that prior to the effective date of the Civil Rights Act of 1964, Timken hired along racial lines and that this coupled with the pre-1968 unit or departmental seniority system constituted a policy of racial assignment that denied black employees equal opportunity. We agree with this holding. We also agree with the district court’s holding that the 1965-68 seniority system was not justified by a “business necessity”.

Although the plaintiffs prayed for back pay as part of their relief, the district court did not directly meet the issue in its opinion. Back pay is clearly an appropriate remedy for Title VII violations. This remedy has been recognized as appropriate by several courts in Title VII class actions. In one of the early eases awarding classwide back pay, Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 720 (7th Cir. 1969), the court expressly considered the proper remedy for persons who had been denied equal opportunities as a consequence of an illegal seniority system:

The clear purpose of Title VII is to bring an end to the proscribed discriminatory practices and to make whole, in a pecuniary fashion, those who have suffered by it.

In Robinson v. Lorillard Corp., 444 F.2d 791, 802 (4th Cir.) cert. den. 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971), the Fourth Circuit, adopting the analysis in Bowe with respect to the nature of back pay awards under Title VII, stated:

The back pay award is not punitive in nature, but equitable — intended to restore the recipients to their rightful economic status absent the effects of the unlawful discrimination.

In light of the congressional intent courts should extend

a wide scope to the act in order to remedy, as much as possible, the plight of persons who have suffered from discrimination in employment opportunities. Rowe v. General Motor Corp., 457 F.2d 348, 354 (5th Cir. 1972).

The finding of discrimination by the district court, in addition to the nature of the relief (compensatory as opposed to punitive), and the clear intent of Congress that the grant of authority under Title VII should be broadly read and applied mandate an award of back pay unless exceptional circumstances are present.

Congress evidently intended that the award of back pay should rest within the sound discretion of the trial judge. Although appellate courts are loathe to interfere with the exercise of such discretion by a trial court, it is recognized that it is not free from appellate scrutiny. In Moody v. Albemarle Paper Co., 474 F.2d 134, 141 (4th Cir. 1973), the Fourth Circuit said:

Discretion in a legal sense necessarily is the responsible exercise of official conscience on all the facts of a particular situation in the light of the purpose for which the power exists. Bowles v. Goebel, 151 F.2d 671, 674 (8th Cir. 1945) (emphasis added). Thus in determining the proper scope of the exercise of discretion, the objective sought to be accomplished by the statute must be given great weight. Hecht Co. v. Bowles, 321 U.S. 321, 331, 64 S.Ct. 587, 88 L.Ed. 754 (1944). Where a district court fails to exercise discretion with an eye to the purposes of the Act, it must be reversed. Wirtz v. B. B. Saxon Co., 365 F.2d 457 (5th Cir. 1966) ; Shultz v. Parke, 413 F.2d 1364 (5th Cir. 1969).

We find no reasonable basis for denial of such relief on the present record. The 1968 change in Timken’s seniority system does not ameliorate the injury already suffered. Good faith by Timken either during the 1965-68 period or thereafter is not a valid defense to a claim for back pay. The court in Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972), went to great lengths to emphasize the good faith of the defendant. Nevertheless, the court remanded the case, stating that the district court on reconsideration “will, of course, include the appropriate remedy, back pay, limited or full, etc., as needed to effectuate the Act.” Id. at 360.

In United States v. I. B. E. W., Local No. 38, 428 F.2d 144, 151 (6th Cir. 1970) (per Edwards, J.) this Court said:

Assuming, as the District Judge plainly did, and as we do, that the new leadership is in utter good faith, it has no mean task ahead in eliminating ingrained discriminatory practices of past decades. In many respects a more specific court order, plus retention of jurisdiction, might serve to support the stated objectives of the new administration of Local 38. And, in any event, such relief is authorized by the Act and called for in this record. United States v. Hayes Int’l Corp., 415 F.2d 1038 (5th Cir. 1969).

“Business necessity” is recognized as a defense to an award of back pay under Title VII. In determining whether the 1965-68 seniority system was justified by “business necessity” the district court stated:

While Timken has convinced the Court generally that it is engaged in a high-technology business and that many of its employees must be highly skilled in Company operations, it has failed to demonstrate that every position at the Company plant is so complex or specialized as to require, without exception, step-by-step job progression within a single department.

This holding seems to refute the defendant’s contention that business necessity was a consideration in the district court’s failure to award back pay. However, the situation is made more complex by the High Production Plant Program (HPP) used by Timken during the 1965-68 period. The district court found that:

A reorganization of the Columbus plant beginning in 1965 resulted in the creation of a “High Production Plant Program.” Old departments were eliminated, new departments were created and some departments were consolidated. The period of reorganization created job dislocation
When an employer or union has discriminated in the past and when its present policies renew or exaggerate discriminatory effects, those policies must yield, unless there is an overriding legitimate, non-racial business purpose. Id. at 989 [Emphasis supplied.] by transfer and lay-off. Jeopardized employees, i. e., those whose jobs would be eliminated, were granted preference in transfers. During the period July, 1965 to November, 1968 this program displaced 339 employees.

Timken urges this Court to accept two factual assumptions. First, that the, HPP played a preeminent part in the district court’s denial of relief; and second, that back pay was not awarded because the plaintiffs failed to show that transfers made outside of the HPP were discriminatory.

The district court did hold that the HPP was a “valid business policy and was non-diseriminatory in its effect.” The plaintiffs have not challenged this holding. They have asserted that the approximately 270 transfers made outside the HPP during the 1965-68 period were discriminatory and were not affected by the business necessity of the HPP. We agree with this conclusion. Timken stresses that every request for a transfer made by a black employee was granted. Even if this is accurate, (as to which the record is unclear) it is irrelevant. The question is not whether Timken prohibited blacks from advancing to better jobs, but whether it discouraged them. The district court found that the unit or departmental seniority transfer system did inhibit or discourage transfers.

We thus conclude that the district court erred in not awarding back pay to the plaintiffs for the period July 2, 1965 to November 4, 1968. Evidence as to specific damages may be presented at the hearing upon remand to assess the amounts of back pay for the employees entitled thereto. It should be noted that a back pay award is limited to damages that are actually suffered. Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971).

We consider now whether the district court erred in not enjoining Timken’s limited bid system. In November, 1968 Timken introduced a new post and bid system based on plant-wide seniority. The plaintiffs have conceded the validity of this system, yet some jobs at Timken are not included in the post and bid system. These jobs are included in another transfer system called the limited bid transfer system. This system has been challenged by the plaintiffs as discriminatory or at least as perpetuating past discrimination.

Before an injunction should be issued in a Title VII case of this nature it should be determined whether the challenged system was discriminatory and, if so, whether it was justified by a business necessity. The district court in this case has held that the limited bid transfer system was not discriminatory, and that even if it was, it was justified by a business necessity.

Clearly, the limited bid system is not discriminatory per se. Here, however, we do not begin with a clean slate since the plaintiffs were subjected to past discrimination. Thus the limited bid system must be examined in light of the residue of past practices.

Examination of the record before us shows that the limited bid sys-tern does indeed perpetuate the effects of prior discrimination. The district court noted obliquely the residual effects of past discrimination when it said:

Thus, while blacks now occupy 32 percent of all qualifying jobs and 25 percent of all limited bid jobs plant-wide, a substantial proportion of these jobs are in the four predominantly black departments to which they and their class were mostly assigned before 1965.

A system neutral on its face but which in its actual effect perpetuates prior discrimination is prohibited by Title VII. The Supreme Court made this clear in Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971):

Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.

Thus a policy limiting transfers to entry level jobs, United States v. Hayes, 456 F.2d 112 (5th Cir. 1972), educational requirements for transfer, Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), a system of departmental seniority, Papermakers and Pap-erworkers, Local 189 v. United States, 416 F.2d 980 (5th Cir. 1969), cert. den. 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970), and a no transfer rule, Jones v. Lee Way Motor Freight, 431 F. 2d 245 (10th Cir. 1970), cert. den. 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971), have been enjoined, not because they were facially discriminatory, but because they perpetuated originally segregated departmental or job assignments. Timken’s limited bid system has the same effect and must be enjoined unless it is justified by a business necessity.

The district court held in the alternative that even if the post-1968 system was discriminatory in effect, it was justified by the business necessity test, We are not prepared to say that this conclusion is erroneous, but an examination of the court’s analysis reveals at least that the test was not properly applied.

The court placed the burden of proving the absence of business necessity on the plaintiffs. This, in our opinion, was error. If an employment practice, though facially neutral, is shown to have a differential impact on minority employment, it is prohibited unless the employer can prove business necessity. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Moody v. Albemarle Paper Co., 474 F.2d 134 (4th Cir. 1973).

The court’s error arose from its failure to take into account one necessary element of the test. The test consists of two discrete parts as set forth in Robinson v. Lorillard Co., 444 F.2d at 798:

The test is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business. Thus, the business purpose must be sufficiently compelling to override any racial impact; the challenged practice must effectively carry out the business purpose it is alleged to serve; and there must be available no acceptable alternative policies or practices which would better accomplish the business purpose advanced, or accomplish it equally well with a lesser differential racial impact.

The first prong of the test was correctly applied by the court below but there was no finding or holding that the limited bid system could not be replaced by another plan that would be just as efficacious for Timken’s business purpose with a lesser racial impact. This must be considered on remand.

As stated, the district court found discrimination but awarded no relief. Since we remand the case for further consideration of the issues indicated herein, we deem it inappropriate to consider at this juncture the district court’s denial of attorney’s fees. A successful plaintiff stands in a different light from an unsuccessful one on this question. Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971). On remand, the district court will reconsider the matter of attorney’s fees in light of our rulings herein and other relevant factors.

The district court’s judgment is affirmed in part, reversed in part, and the case is remanded for further proceedings not inconsistent with this opinion. Plaintiffs-Appellants will recover from Defendants-Appellees the costs on appeal.

      . A more detailed description, of the seniority-systems is set forth at appropriate points in this opinion.

      . (b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not -within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

      . Civil Rights Act of 1866, 42 U.S.C. § 1981. The statute provides:
      All persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens. . . .

      . Judge Butzner, speaking for the majority in Brown, obviously did not consider this theory novel when he said:
      The district judge’s findings establish that the company violated 42 U.S.C. § 1981 by denying Brown a welding job because of his race from the time he applied in 1960 until he was employed as a welder-trainee in 1961. Brown, therefore, is entitled to back pay measured by the difference between the wages he would have earned had he been initially employed as a welder-trainee and his actual wages. Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011 (5th Cir. 1971) ; Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), cert, denied, 401 U.S. 948, 91 S.Ct. 935, 28 L.Ed. 2d 231 (1971) ; Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th Cir.), cert, denied, United Order of Am. Bricklayers and Stone Masons, Local 21 v. Waters, 400 U. S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970).
      Judge Dupree, dissenting, considered the awarding of back pay under § 1981 for pre-Ti-tle VII discrimination as novel when he said:
      Cited by the majority in support of the back pay award in this ease are two cases from the Fifth Circuit and one from the Seventh. These cases hold that Section 1981 affords a right to sue for “private” racial discrimination in employment and that this right was not repealed by the enactment of Title VII of the Civil Rights Act of 1964. Other courts have reached the same conclusion. None of these cases involved an award of back pay for a violation of Section 1981 which occurred prior to Title VII, however, and diligent research has failed to unearth such a case. Since Section 1981 for the first one hundred years of its existence was construed to apply only to state action and not to affect dealings between private individuals, this paucity of precedent is readily understandable. [Footnote omitted.] 457 F.2d at 1384-1385.

      . Caldwell v. National Brewing Co., 443 F.2d 1044 (5th Cir. 1971) cert. den. 405 U.S. 916, 92 S.Ct. 931, 30 L.Ed.2d 785 (1972) ; Young v. I. T. T., 438 F.2d 757 (3rd Cir. 1971) ; Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011 (5th Cir. 1970) ; Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970) ; Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th Cir. 1970).

      . Although this Court has never expressly held that this type of relief is available under § 1981, nor do we intend to do so in this opinion, we have in Johnson v. City of Cincinnati, 450 F.2d 796 (6th Cir. 1971), favorably cited the authorities referred to in the plaintiffs’ brief, (see n. 5 supra.) In holding that 42 U.S.C. § 1982 was not superseded by the Fair Housing provisions of the Civil Rights Act of 1968, 42 U.S.C. § 3601, we referred to these § 1981 precedents as analogous. It is therefore not an unreasonable or illogical position to argue that the analysis in Johnson supports an adoption of the co-existence theory of Title VII and § 1981.

      . The unit or departmental seniority system and its effects were described by the district court:
      Between 1965 and 1968, pursuant to the 1965 Basic Labor Agreement entered into between the defendant Union and the Company, the plant operated under a unit, or departmental seniority system. Under this system an employee gained seniority only in the department to which he was assigned. In some instances, more than one line of progression was available within one seniority unit, but the ability of an employee to obtain a better paying job was limited by the availability of such jobs within the department or seniority unit to which he was assigned. While interdepartmental transfers were permitted on an informal basis, this system created an unequal situation, since all potential transferees under such system would be required to begin at the entry-level job of their new department and would thereby lose accumulated seniority protection against lay-offs. Such impediment bore no relationship to an employee’s ability and served only to inhibit transfers between units. Such a system likewise prevented all employees from having an equal opportunity to acquire on-the-job training for better paying jobs, irrespective of ability or aptitude for such jobs.

      . 42 U.S.C. § 2000e-5(g) provides in part: If the court finds that the respondent has intentionally engaged in ... an unlawful employment practice charged in the complaint, the court may order such affirmative action as may be appropriate, which may include back pay ....
      Discussing the Congressional intent of the relief section of the 1972 Amendments to Title VII, the Senate-House Conference Report states:
      The provisions of this subsection are intended to give the courts wide discretion exercising their equitable powers to fashion the most complete relief possible. In dealing with the present section 706(g) the courts have stressed that the scope of relief under that section of the Act is intended to make the victims of unlawful discrimination whole, and that the attainment of this objective rests not only upon the elimination of the particular unlawful employment practice complained of, but also requires that persons aggrieved by the consequences and effects of the unlawful employment practice be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination.” Section-by-Section Analysis, Congressional Record (H.1863), March 8, 1972.

      . See Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.) cert. den. 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971) ; Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir. 1971) ; Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969). No case has been found that allowed classwide back pay in a 23(b)(2) class action where final injunctive relief was not deemed appropriate. This issue is not before us at this time. Its relevancy will depend on the district court’s determination on remand as to the appropriateness of an injunction. The issue would be whether a 23(b) (2) class can be sustained where injunctive or declaratory relief is not granted.

      . This Court in Manning v. International Union, 466 F.2d 812 (6th Cir. 1972), denied back pay despite a showing of discrimination. That case is easily distinguishable from the case at hand, for in Manning the defendants were caught between two statutes, one directing them not to discriminate and one directing them to discriminate.

      . In defining the “business necessity” test in Local 189, United Papermakers and Pap-erworkers v. United States, 416 F.2d 980 (5th Cir. 1969), the court said :

      . In Bowe v. Colgate-Palmolive, supra, the Fourth Circuit, in considering back pay in a situation analogous to the- one before this Court, said:
      The court should also ascertain the feasibility of computing the damage to those who, while not laid off, were denied the opportunity to bid on higher paying jobs for which they may have been qualified. 416 F.2d 721 n. 12

      . The district court described the limited bid system in its opinion:
      Although most occupations at the plant are now subject to the post and bid system on a plant-wide basis, 101 jobs, known as “limited bid” jobs, are not available for general bidding. These generally involve a relatively higher degree of skill and are higher paying than other noncraft positions at the plant and include such jobs as sheet metal worker, fireman, gaugesetter/checker, lineman, head operator, project inspector, refrigeration mechanic, carpenter and stock checker. Each limited bid position has a corresponding “qualifying occupation,” and the only employees who may bid for such positions are those who have the requisite qualifications.

      . We observe that the district judge in a pretrial order mentioned the possibility of referring the case to a special master in the event that damages should be allowable. We have not discussed this question since no damages were allowed by the district court and the issue is not before us. On remand, it will be necessary for the district judge on the facts of the present case to determine his authority in this respect.


author: SPRECHER, Circuit Judge.

text:
    Lydia L. MORALES, Plaintiff-Appellant, v. James A. HAINES, Mayor of Harvey, Illinois, et al., Defendants-Appellees.
    No. 72-2012.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 20, 1973.
    Decided Oct. 11, 1973.

      F. Willis Caruso, Chicago, Ill., for plaintiff-appellant.
    William F. Donahue, Harvey, Ill., Edward T. Havey, Chicago, Ill., for defendants-appellees.
    Before KILEY, FAIRCHILD and SPRECHER, Circuit Judges.
   SPRECHER, Circuit Judge.

The complaint was brought under 42 U.S.C. §§ 1982, 1983, 3604 and 3612 to challenge the refusal of the defendant, City of Harvey, Illinois, to permit construction within its boundaries of houses financed under Section 235 of the Federal Housing Act, 12 U.S.C. § 1715Z.

The plaintiff is a black citizen who entered into a contract to purchase a house to be built by Maridan Construction Company in Harvey and to be financed under Section 235. Maridan had previously constructed about 400 Seetion-235-financed houses in Harvey and in the summer of 1970 had received all necessary federal clearances and commitments to build 90 more such houses in Harvey, including the one contracted to be purchased by plaintiff.

Late in the summer of 1970, the defendants administratively decided that the city would not allow any more Section 235 houses to be built within the city limits. To implement this decision the defendants refused to issue any building permits for such housing, including the one to be built for plaintiff. About one year later, on September 27, 1971, the city council adopted Resolution No. 868, which gave formal recognition to this decision and provided that no permits would be issued for such housing for a period of one year from the date of the resolution.

Upon a trial without a jury, the district court held that the “refusal of building permits for Section 235 houses violates the Equal Protection Clause of the Fourteenth Amendment” inasmuch as the basis for classification, which was “the financial means of the prospective owner,” is impermissible. 349 F.Supp. 684, 686.

The complaint had sought a permanent injunction, actual and punitive damages, and attorneys’ fees. The district court permanently enjoined defendants from refusing to issue a permit for the construction of a Section 235 or other federally financed, guaranteed or subsidized house to plaintiff. Actual and punitive damages and attorneys’ fees were denied.

Although the plaintiff’s notice of appeal purported to appeal the entire judgment, plaintiff has not challenged the permanent injunction relief but only the court’s denial of actual and punitive damages and attorneys’ fees. The plaintiff further challenged the court’s failure to find racial discrimination and argued that damages and attorneys’ fees would, or at least could, result from such a finding.

The complaint expressly prayed for actual and punitive damages and attorneys’ fees, and the claim for relief was founded on 42 U.S.C. §§ 1982, 1983, 3604 and 3612.

Section 3604 makes it unlawful to make unavailable or deny a dwelling, or to discriminate in the terms, conditions or privileges of sale of housing “because of race, color, religion or national origin.” Section 3612(c) provides that the court “may award to the plaintiff actual damages and not more than $1,000 punitive damages, together with reasonable attorney fees in the case of a prevailing plaintiff: Provided, That the said plaintiff in the opinion of the court is not financially able to assume said attorney’s fees.”

Section 1982 provides that “[a] 11 citizens of the United States shall have the same right . . . as is enjoyed by white citizens to purchase . . . [and] hold . real . . . property.” Although damages and attorneys’ fees are not expressly mentioned, compensatory (Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 238-240, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969)) and punitive damages (Lee v. Southern Home Sites Corp., 429 F.2d 290, 293-295 (5th Cir. 1970)), and attorneys’ fees (Lee v. Southern Home Sites Corp., 444 F.2d 143, 144-148 (5th Cir. 1971)) may be awarded in a § 1982 ease.

Punitive damages (McDaniel v. Carroll, 457 F.2d 968 (6th Cir. 1972)) and attorneys’ fees (Monroe v. Board of Commissioners, 453 F.2d 259, 262-263 (6th Cir. 1972)) may also be awarded in a § 1983 case.

Thus the finding of the presence or absence of racial discrimination is material to the resolution of the plaintiff’s prayers for actual and punitive damages and attorneys’ fees and that finding should be made. “Where the trial court fails to . find on a material issue, . . . the appellate court will normally vacate the judgment and remand the action for appropriate findings to be made.” 5A J. Moore, Federal Practice ¶ 52.06 [2], at 2718 (2d ed. 1971).

That part of the judgment denying actual and punitive damages and attorneys’ fees is vacated. The ease will be remanded for appropriate findings on racial discrimination and for the determination of actual and punitive damages and attorneys’ fees in the light of those findings. Cash v. Swifton Land Corp., 434 F.2d 569, 572 (6th Cir. 1970). See also Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (attorneys’ fees awarded where injunction benefits persons other than plaintiff). In all other respects, the judgment is affirmed.

Affirmed in part; vacated and remanded in part.

      . The district court found: “Section 235 financed houses are not distinguishable from other homes in their price category. A Section 235 house is not permitted to exceed $24,500 for a four-bedroom single family dwelling, under Department of Housing and Urban Development regulations. It must meet local and federal housing standards and regulations in the same way as any other newly constructed home. It can be purchased under conventional financing, Veterans Administration financing or standard F. H.A. financing. Section 235 relates only to the Federal Government subsidy in the form of a partial payment of some percentage of the mortgage interest. The exact percentage of the mortgage interest paid by the Government is based on factors relating to cost, interest, and the recipient family’s net income and number of children.” Morales v. Haines, 349 F.Supp. 684, 685 (N.D.Ill.1972).

      . The court found that in view of its finding of financial discrimination “it is unnecessary to decide whether the decision to ban additional Section 235 houses was motivated to any extent by the likelihood that such houses would be occupied by blacks or by a desire to control ‘racial balance.’ ” 349 F. Supp. 684, 686-687.


author: HILL, Circuit Judge.

text:
    UNITED STATES of America, Plain tiff-Appellee, v. Ronald COPPOLA, Defendant-Appellant.
    No. 73-1170.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Aug. 14, 1973.
    Decided Oct. 25, 1973.
    Rehearing Denied Nov. 16, 1973.

      Raymond J. Daniels, Providence, R. I. (John F. Cicilline, Providence, R. I., and Carroll Samara, Oklahoma City, Okl., on the brief), for defendant-appellant.
    Jeff R. Laird, First Asst. U. S. Atty., Oklahoma City, Okl. (William R. Burk-ett, U. S. Atty., on the brief), for plaintiff-appellee.
    Before HILL and SETH, Circuit Judges, and SMITH, District Judge.

       Honorable Talbot Smith, District of Michigan, sitting by designation.

   HILL, Circuit Judge.

Ronald Coppola was indicted for executing a scheme to defraud James Mathis of horses having a value in excess of $5,000 in violation of 18 U.S.C. § 2314. He subsequently was convicted by a jury in the Western District of Oklahoma and sentenced to the maximum penalty allowed.

The record discloses that Mathis was the manager of a registered quarter-horse .ranch near Norman, Oklahoma. In November, 1971, Louis Baccari induced Mathis through the use of interstate telephone calls to haul four quar-terhorses from Norman to Providence, Rhode Island, for the express purpose of selling them. After hauling the horses to Providence, Mathis was introduced by Baccari to a man called “Ray Cianci”, actually Coppola, who allegedly was the prospective buyer. After introductions, Mathis and Baccari proceeded to discuss a sale price and eventually agreed upon a price of $10,500 for three of the horses; Cianci then wrote out a counter-check for the agreed amount. After receiving the countercheck, Mathis left the three horses and returned to Oklahoma. Shortly thereafter he presented the countercheck for collection but was refused payment because no such account existed.

Mathis immediately notified authorities of the fraudulent scheme. Approximately a year later Baccari and Coppola were arrested and charged with inducing Mathis to use interstate commerce in the execution of a scheme to defraud Mathis of property having a value of over $5,000. Baccari pleaded guilty to this charge in the District of Rhode Island, and Coppola was found guilty in the Western District of Oklahoma of aiding and abetting Baccari in the fraudulent scheme.

Coppola’s first argument on appeal is that he was deprived of a fair trial by an impartial jury when the trial court instructed the jury at one place in the instructions that the government must establish each of the three essential elements of the offense charged by a preponderance of the evidence rather than beyond a reasonable doubt. Coppola argues that charging a jury on preponderance of evidence is plain error because it leaves the jury with the impression that the government’s burden of proof is less than beyond a reasonable doubt.

Coppola’s trial counsel did not object to this questioned instruction at the time it was given, nor did he mention this error in' his motion for a new trial. Failure to timely object would normally preclude objection on appeal. F.R. Crim.P., Rule 30, 18 U.S.C. The one exception is when the improper instruction constitutes plain error because it seriously affects substantial rights of the accused. F.R.Crim.P., Rule 52(b), 18 U.S.C.; United States v. Nelson, 448 F.2d 1304 (10th Cir. 1971); Wright v. United States, 301 F.2d 412 (10th Cir. 1962).

Determining what constitutes plain error is no easy matter. As the United States Supreme Court has noted, defining plain or reversible error is an almost impossible task; it is something you know when you see it. Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L. Ed.2d 793 (1964). One of the clearest definitions we have found on the subject states that plain error is “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.” United States v. Summerour, 279 F. Supp. 407, 410 (E.D.Mich.1968).

In deciding whether the instructions constitute plain error we will review the instructions as a body rather than looking to one isolated sentence. Russell v. United States, 429 F.2d 237 (5th Cir. 1970); Bynum v. United States, 133 U.S.App.D.C. 4, 408 F.2d 1207 (1968), cert, denied, 394 U.S. 935, 89 S.Ct. 1211, 22 L.Ed.2d 466; United States v. Summerour, supra. In the court’s charge, time and again it was stated that presumption of innocence continues until such time as the guilt of the defendant is shown to the jury’s satisfaction beyond a reasonable doubt. Shortly after the allegedly prejudicial instruction was given, while still speaking on the same subject, the trial court stated: “You of course may not find any Defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the Defendant participated in its commission.” This instruction, along with the other reasonable doubt instructions, sufficiently clarifies any ambiguity raised by the “preponderance of evidence” instruction. As the jury was charged that they must consider the instructions as a whole rather than relying only on parts of them, we are convinced the inadvertent instruction was harmless error. United States v. Beyer, 426 F.2d 773 (2d Cir. 1970); see Scurry v. United States, 120 U.S.App.D.C. 374, 347 F.2d 468 (1965), cert, denied, 389 U.S. 883, 88 S.Ct. 139, 19 L.Ed.2d 179.

Appellant next asserts he was improperly indicted; that he was unable to prepare a proper defense because the indictment charged him solely as a principal although the prosecution proceeded and the court charged on the theory that he was an aider and abettor. This argument may be summarily refuted because the law does not require the aider and abettor statute to be specifically pleaded or that accused be charged with being an aider or abettor. United States v. Adams, 454 F.2d 1357 (7th Cir. 1972), cert, denied, 405 U.S. 1072, 92 S.Ct. 1523, 31 L.Ed.2d 805; United States v. Trollinger, 415 F.2d 527 (5th Cir. 1969). As appellant has made no showing that his defense was hindered by the prosecution’s aiding and abetting theory we find no grounds for reversal.

Appellant also suggests his case was improperly tried because the judicial district of Oklahoma lacks both jurisdiction and venue to hear this case. His position is that all acts of inducement causing Mathis to travel from Oklahoma to Rhode Island with the horses were perpetrated by Baccari while in the States of Rhode Island and New York, and as the acts of inducement were all performed outside Oklahoma, that judicial district lacks jurisdiction and venue to hear this case. We disagree, for under 18 U.S.C. § 3237 (a) it is clear that violation of § 2314 is a continuing offense which may be prosecuted in any district from which commerce moves. It necessarily follows that as the substantive crime was committed in Oklahoma, the crime for aiding and abetting may also be tried in that district. United States v. Jackson, 482 F.2d 1167 (10th Cir. 1973); United States v. Kilpatrick, 458 F.2d 864 (7th Cir. 1972).

Appellant also charges error in admitting into evidence “in-court” eyewitness identifications because they were tainted by improper pretrial law enforcement identification procedures. When Mathis reached Providence, Rhode Island, late in the afternoon of a dreary November day, he was briefly introduced to a “Ray Cianei”. For approximately one hour Mathis and Baccari discussed sale prices of the horses while Cianei stood by about ten yards away; after this discussion Cianei gave Mathis the countercheck and Mathis then left for Oklahoma. Approximately a year later Mathis and David Ashford, an employee who had traveled with Mathis to Rhode Island, were shown six or seven photographs by the Federal Bureau of Investigation. Only Mathis identified Coppola as the man who was called Cianci. Approximately two months after viewing the photographs a lineup was conducted in Oklahoma City and this time both Mathis and Ashford identified Coppola as Cianei. At trial the prosecution was allowed over appellant’s objection to ask Mathis and Ashford if they had identified Coppola at the lineup. Appellant’s objection was that due to the great lapse of time between the original incident in November, 1971, and the showing of photographs approximately a year later, followed by a lineup two months later, there is a possibility that misidentification has resulted. Appellant suggests that since Mathis and Ash-ford were in the presence of Cianei at most one hour, since during most of that time Mathis was engaged in conversation with Baccari while Cianei stood by about ten yards away, and since this incident occurred late in the afternoon on a dark and dreary November day nearly a year before the identification took place, any identification of Coppola at the lineup probably resulted from reviewing the pictures rather than actually seeing him in Rhode Island.

We are aware that improper employment of photographs by police may sometimes cause witnesses to err in identifying criminal suspects. Despite the hazards of initial identification by photographs, however, this procedure is still an effective tool in criminal law enforcement if the procedure followed is not so suggestive as to give rise to a substantial likelihood of misidentification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967,19 L.Ed.2d 1247 (1968). As our court has noted previously, to determine whether the identification procedures were impermissibly suggestive we must look to the totality of circumstances. United States v. Milano, 443 F.2d 1022 (10th Cir. 1971), cert, denied, 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 258. The record discloses that during the hour Mathis and Coppola were together Mathis had several opportunities to observe Coppola closely. Baccari introduced Coppola to Mathis upon Mathis’ arrival in Providence. Mathis turned over the horses to Coppola after the agreement was consummated, and he also handed appellant the registration papers. During all of these negotiations Coppola was usually no more than ten yards away from Mathis. Approximately a year later Mathis was shown the six or seven photographs by only one FBI agent. This agent merely asked Mathis to look at the pictures and decide if he had seen any of the men before. No record of the people involved in the photographs was discussed and there was no suggestion that one picture should be picked out over the others. It is apparent that Mathis identified Coppola from his own recollection and thus we find no impermissible suggestion in the government’s use of photographs.

Appellant charges that Ashford’s lineup identification was error because it resulted from viewing appellant’s photograph which carried on it the inscription “Rhode Island”. We reject this argument for several reasons. First, the inscription on the photograph was not likely to cause misidentification because Ashford had an excellent opportunity to observe Coppola in Rhode Island, and in all other respects the photo spread was lacking in the slightest hint of suggestibility. United States v. Faulkner, 447 F.2d 869 (9th Cir. 1971), cert, denied, 405 U.S. 926, 92 S.Ct. 974, 30 L.Ed.2d 798. Second, Ashford testified that he did not make an identification of appellant from the photograph; his identification first occurred at the lineup in Oklahoma City. Hence impermissible suggestibility does not arise in relation to Ashford.

Appellant’s final argument is that he was denied effective assistance of counsel because the trial court refused to grant a continuance although counsel was employed by appellant only a few days before the trial. The facts indicate that at arraignment on November 2, 1971, appellant appeared with John Cicilline as his retained counsel. Cicilline filed numerous pre-trial motions on appellant’s behalf, sat at the counsel table throughout the trial, and still continues as his counsel on appeal. Several days before the December 13, 1972, trial date appellant decided that he wanted another attorney to assist in- the conduct of the trial, so Peter Zaccagnio was employed. Zaccagnio on the day of trial requested a continuance and further requested continuances throughout the trial. Appellant now asks our court to reverse his conviction because his trial counsel was not given sufficient time to prepare for the case; thus appellant was denied effective assistance of counsel. Our court in United States v. Davis, 436 F.2d 679 (10th Cir. 1971), was confronted with the identical problem and replied by stating:

The Sixth Amendment guaranty that the accused in a criminal proceeding shall enjoy the right to have the assistance of counsel means effective assistance, as distinguished from bad faith, sham, mere pretense or want of opportunity for conference and preparation. (At 681).

Appellant was represented by Gicilline for approximately thirty days before the trial, and as indicated, such counsel had effectively filed pre-trial motions which benefitted both appellant and newly employed counsel. The record discloses that Zaccagnio worked with Cicilline during the trial and hence we fail to find from the record any indication that appellant was denied effective assistance of counsel. On the contrary, the record discloses that appellant enjoyed the services of able counsel; he was convicted on the strength of the government’s case rather than counsel’s lack of preparation. Goforth v. United States, 314 F.2d 868 (10th Cir. 1963), cert, denied, 374 U.S. 812, 83 S.Ct. 1703, 10 L.Ed.2d 1035.

This case is affirmed in all respects.

      . 18 U.S.C. § 2814. Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transports or causes to be transported, or induces any person to travel in, or to be transported in interstate commerce in the execution or concealment of a scheme or artifice to defraud that person of money or property having a value of $5,000 or more;
      Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.

      . 18 U.S.C. § 2.

      . To the Indictment, the Defendant has entered a plea of not guilty, which casts upon the Government the burden of proving the essential allegations of the Indictment to your satisfaction beyond a reasonable doubt before yon would be justified in returning a verdict of guilty as to the Defendant.
      This presumption of innocence continues until such time as the guilt of the Defendant is shown to your satisfaction beyond a reasonable doubt, and if, upon a consideration of all the evidence, facts and circumstances in the case, you entertain a reasonable doubt of the guilt of the Defendant as to the crime charged against him, you must give him the benefit of that doubt and return a verdict of not guilty as to the Defendant.
      A reasonable doubt is a doubt based upon reason and common sense — the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that you would be willing to rely and act upon it unhesitatingly in the most important of your own affairs.
      You are instructed that an intent to commit the crime set forth in the Indictment by the Defendant now on trial is an essential element of the crime charged, and the burden is upon the Government to establish such intent to your satisfaction beyond a reasonable doubt.
      As a general rule, the law makes no distinction between direct and circumstantial evidence, but simply requires that before convicting a Defendant, the jury be satisfied of the Defendant’s guilt beyond a reasonable doubt from all the evidence in the case.
      You of course may not find any Defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the Defendant participated in its commission.
      If you find from the evidence in this case and under these instructions beyond a reasonable doubt that the Defendant on trial is guilty of the crime charged against him in this case then you should find the Defendant guilty.

      . Any offense involving the use of the mails, or transportation in interstate or foreign commerce, is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce or mail matter moves.


text:
    LEECH LAKE AREA CITIZENS COMMITTEE et al., and John P. Pilburn, et al., Appellants, v. The LEECH LAKE BAND OF CHIPPEWA INDIANS et al., Appellees, v. Robert HERBST et al., Appellees, v. UNITED STATES of America, Appellee, v. STATE OF MINNESOTA, Appellee, v. Glenn BIXENSTINE et al., Appellees.
    No. 73-1384.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 16, 1973.
    Decided Nov. 1, 1973.
    Bernard P. Becker, Legal Aid Society, Minneapolis, Minn., made argument for Leech Lake Band of Chippewa Indians, and others.
    Morris Sherman, Asst. Atty. Gen., St. Paul, Minn., made argument for the State of Minnesota.
    C. John Forge, Jr., Independence, Mo., made argument for Leech Lake Area Citizens Assn., and others.
    Before HEANEY, BRIGHT and ROSS, Circuit Judges.
   ORDER FOR SUMMARY AFFIRMANCE

This matter comes before this court upon a motion for summary affirmance of an order of the district court (Chief Judge Devitt) which denied an, application for intervention made by the Leech Lake Citizens Committee and others in the underlying action which was then pending in district court. We grant the motion for summary affirmance.

The underlying litigation commenced in 1969. The Leech Lake Band of Chippewa Indians brought an action against Robert L. Herbst, Commissioner of Natural Resources of the State of Minnesota, to determine the rights of the Chippewa Indians to fish, hunt, and harvest wild rice on the public lands and waters of Leech Lake Indian Reservation in Minnesota. In a second action, also for declaratory judgment, the United States brought an action for similar relief against the State of Minnesota. The two cases were consolidated and the case proceeded to trial and judgment. Leech Lake Band of Chippewa Indians v. Herbst, 334 F.Supp. 1001 (D.Minn. 1971). Thereafter, appeals and cross-appeals were filed here. Before the appeal was heard, we remanded the case to the district court for the entry of a consent judgment since the parties had agreed upon a settlement of the dispute subject to the State of Minnesota enacting legislation in conformity with the settlement agreement. Pending final settlement and after our remand of the case to the district court, the appellants here sought to indirectly become parties to the dispute by bringing an action for injunction to prevent any final settlement of the underlying litigation. The district court dismissed the action, Leech Lake Cit. Com. v. Leech Lake Band of Chippewa Ind., 355 F.Supp. 697 (D.Minn.1973). No appeal was taken.

Thereafter on March 22, 1973, these appellants directly applied to the district court for intervention in the existing action. The court denied the application and this appeal followed.

The record also discloses that, pending appeals and cross-appeals in the underlying action, the present appellants sought to intervene on that appeal. We denied the motion on June 8, 1972, but granted leave to said parties to file a brief amicus curiae.

Thus, the record shows that persons asserting the alleged interests of these appellants have several times directly or indirectly sought intervention in the underlying action. The prior orders denying intervention have become final. The present motion to intervene raises no new matters. The record discloses no basis for intervention as a matter of right under Rule 24(a)(2), F. R.Civ.P. The general interests of all citizens of Minnesota, and others, were represented by the State of Minnesota in the underlying action. Moreover, if as alleged, officials of Minnesota have acted in a manner contrary to the state or federal constitutions in effecting a settlement of the underlying litigation, such contention raises an issue separate from the matters heretofore litigated and settled in the underlying litigation. Additionally, the district court committed no error in denying intervention on a permissive basis under Rule 24(b), F. R.Civ.P., because of the late stage of litigation in which the motion for intervention was brought and because the denial of earlier efforts to intervene had already become final.

We have carefully considered the files and records herein, the briefs of the parties to this appeal, and oral arguments presented by counsel. We hold this appeal to be frivolous and without merit. We grant appellees’ motion for affirmance pursuant to Rule 9(b) of the Rules of this Court.

It is so ordered.

      . That provision reads:
      (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

      . That provision reads :
      (b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. * * * In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

      . As pertinent, this rule reads as follows:
      Rule 9. Summary Disposition.

      3 3 * 3 3
      (b) On The Motion Of The Parties. The appellee may file a motion for summary disposition of a docketed appeal. A motion to dismiss an appeal may be based on the contention that * * * (2) the appeal is frivolous and entirely without merit. A motion to affirm may be based on the ground that the questions presented for review are so unsubstantial as not to need further argument. A motion for summary disposition may be on alternative grounds.
      * * * * *


author: LEVIN Judge. H. CAMPBELL, Circuit

text:
    UNITED STATES of America, Appellee, v. Russell SAWAYA, Defendant-Appellant.
    No. 73-1205.
    United States Court of Appeals, First Circuit.
    Submitted Aug. 14, 1973.
    Decided Oct. 26, 1973.

      Russell Sawaya, on brief, pro se.
    James N. Gabriel, U. S. Atty., and Wayne B. Hollingsworth, Asst. U. S. Atty., on memorandum, for appellee.
    Before COFFIN, Chief Judge, Me-ENTEE Judges. and CAMPBELL, Circuit
   LEVIN Judge. H. CAMPBELL, Circuit

Russell Sawaya appeals from the denial of his pro se petition to vacate sentence filed under 28 U.S.C. § 2255. Sawaya is currently serving a five-year sentence imposed on April 5, 1971, following his plea of guilty to charges of possessing and transferring $150,000 in counterfeit federal reserve notes in violation of 18 U.S.C. §§ 472, 473. Citing United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), he contends that the district court, when imposing sentence, improperly took into account prior convictions which, because uncounselled, were constitutionally invalid.

Sawaya’s original § 2255 petition alleged merely that the sentencing court did not have a “certified record” of prior convictions and had considered convictions that were invalid: The United States Magistrate, to whom the petition was referred, inferred from Saway-a’s citing of Tucker that “he might be relying on the fact that he was without counsel during some of the prior convictions.” The Magistrate reviewed the transcript, a copy of which he appended to his report, and concluded that there was nothing therein to indicate that the “judge had considered Sawaya’s prior record.” The Magistrate recommended dismissal of the claim for that reason and also because “nowhere does it appear that any prior conviction of Sa-waya has been set aside for the reason that he lacked counsel.”

After the court dismissed the petition, Sawaya moved for reconsideration, asserting that the sentencing judge had had a pre-sentence report before him listing prior convictions and that the invalidity of the prior convictions (which it now appears were state convictions) should be decided by the federal court. The motion for reconsideration was denied, and the present appeal filed.

On appeal, Sawaya for the first time lists the specific data, purportedly in the pre-sentence report, to which he objects. This falls into four categories: (1) convictions as to which Sawaya does not claim he was uneounselled; (2) uncoun-selled traffic violations with no disposition indicated; (3) a series of proceedings, allegedly uncounselled, stemming from neglect or non-support of an illegitimate child, in which he was given probation; and (4) an allegedly uncoun-selled guilty plea in a 1951 juvenile court proceeding, when Sawaya was 15, resulting in a year of probation for assault and battery with a dangerous weapon.

We would ordinarily not consider allegations of fact not presented to the district court. But appellant is incarcerated and acting pro se; no interest would be served by delay. We accordingly consider the data alleged on appeal as if forming part of the original § 2255 petition.

Turning to the substance of the claim, it is obvious that Sawaya cannot complain to the extent the judge was advised of prior counselled convictions. In Tucker, the judge had given exploit consideration to previous felony convictions which had later been overturned as unconstitutional under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed.2d 799 (1963). The first category of data thus fails to demonstrate possible error. Nor do we see impropriety in the judge's awareness of the motor vehicle cases, whether counselled or uncounselled. Sawaya does not allege that he was imprisoned or that there was any likelihood of imprisonment or even that the recorded dispositions were adverse. There is no reason to suppose that those cases resulted in invalid convictions. See Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).

The non-support convictions are open to greater question. Conviction in Massachusetts for non-support carries a permissible two-year sentence. M.G.L. c. 273, §§ 15, 16. Although Argersinger precludes imprisonment without appointed counsel or waiver thereof, it is, possible to read it as validating uncounselled minor-offense proceedings where the punishment is less than imprisonment. Sweeten v. Sneddon, 463 F.2d 713 (10th Cir. 1972); but cf. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed.2d 799 (1963). If so Sawaya’s nonsupport convictions may be valid eve.n if uncounselled unless they are major offenses as a matter of federal constitutional law. Even if Argersinger invalidates uncounselled non-support convictions imposing only probation, it may not be relevant to the offenses in question because the Supreme Court has yet to hold Argersinger retroactive.

In any event, it would be premature for us to attempt to resolve these difficult constitutional conundrums. Sawaya’s contentions may well be capable of disposition on non-constitutional grounds. Ashwander v. T. V. A., 297 U.S. 288, 346-348, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (concurring opinion). The circumstances of the present case, unlike those of Tucker, do not compel us to conclude that Sawaya’s prior record had an appreciable influence on the sentencing judge. Moreover, even if the nonsupport convictions affected the sentence, we do not yet know if Sawaya was without counsel, was entitled to state-provided counsel, or validly waived any right he may have had to the assistance of counsel. The uneounselled convictions in Tucker had been declared void in state collateral proceedings before the § 2255 petition was filed. Until these factual issues are resolved, the possible unconstitutionality of the nonsupport convictions is not ripe for adjudication.

The fourth category of data mentioned by Sawaya relates to a juvenile proceeding in 1951. At that time Sawaya pled guilty to an offense which would have resulted in a criminal felony proceeding but for his age. Due process requires that a child and his parents be informed that he has the right to be represented by counsel and that the state will appoint counsel for the indigent. In re Gault, 387 U.S. 1, 34-42, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). However, Tucker does not hold that a sentencing judge may not be aware of prior convictions, even constitutionally infirm ones. It holds only that the court must be aware of the infirmities. Consequently, a determination would have to be made as to whether the sentencing judge actually knew or assumed that Sawaya’s juvenile proceeding in 1951 was uncounselled.

While the ultimate merits .of Sawaya’s claim have yet to be established, it was prematurely dismissed as facially invalid. In comparable cases other circuits have held that the petitioner is entitled to have the district court determine whether his original sentence would still be appropriate were the challenged prior convictions to be treated as void. Lipscomb v. Clark, 468 F.2d 1321, 1323 (5th Cir. 1972); Brown v. United States, 483 F.2d 116 (4th Cir. 1973) 5; cf. McAnulty v. United States, 469 F.2d 254, 255 (8th Cir. 1972). Only if the court concludes that the sentence would not be appropriate is the petitioner entitled to a hearing on the validity of the convictions.

Adopting the procedure described in Lipscomb, we remand to the district court with directions that it review the records of trial and pre-sentence report and determine if, treating the state convictions (other than traffic violations) alleged to have been uncounselled as void, the sentence given would still be appropriate. If the district court finds the sentence still appropriate, an order so setting forth shall be deemed by us to be sufficient compliance with Tucker, and the petition may be dismissed.

If, however, the district court finds that should these prior convictions be disregarded the sentence is no longer appropriate, it should grant Sawaya an ev-identiary hearing on his claim that the prior convictions were uncounselled and, if so, unconstitutional. If the district court sustains petitioner’s claims, it may then properly resentence.

Under our decision in Halliday v. United States, 380 F.2d 270, 274 (1st Cir. 1967), aff’d 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), the case, on remand, will ordinarily not go to the original sentencing judge. Cf. McAnulty v. United States, supra. We do not intimate, however, that § 2255 petitions covering this particular issue may never be disposed of with propriety by the original sentencing judge if circumstances require. See final paragraph, Halliday, supra, 380 F.2d 274.

Reversed and remanded.

      . This is a questionable interpretation. Common practice, as well as counsel’s remarks, indicate that the judge must have had a copy of the pre-sentence report, including defendant’s prior record, before him on the bench. At the sentencing, following the government’s brief recommendation of a six-year sentence, defendant’s counsel spoke as follows:
      “The defendant’s prior criminal record, I believe, goes back to 1951 when the defendant was 15 years of age. Your Honor has that in front of him. I will not repeat the record.
      1 believe the record will reflect that since 1954 the defendant has not been in court charged with any felonies.
      There has been since 1954 a series of motor vehicle violations, a drunkenness arrest, drunkenness in connection with a companion complaint, assault and battery, a misdemeanor ; another assault and battery which [sic] I believe one was dismissed and one resulted in a fine.”
      The transcript shows nothing else about Sa-waya’s prior record; and we have no way of telling whether the sentencing court was influenced by it. Sawaya’s own attorney obviously had an opportunity to review it.

      . Despite the very narrow language chosen by the Court, Argersinger could also be read as extending the right to assistance of counsel at trial whenever the loss of liberty is a possibility. Hernandez v. Craven, 350 F. Supp. 929, 937 (C.D.Cal.1972). Troubled by the existence of numerous petty criminal offenses for which an accused rarely faces a realistic possibility of incarceration, one court has chosen a middle ground, interpreting Ar-gersinger as requiring counsel whenever mandated by “fundamental fairness.” Wood v. Superintendent, 355 F.Supp. 338 (E.D.Va. 1973).

      . The last of the offenses in question was in 1961. The right to counsel in criminal trials enunciated in Gideon has been held to be retroactive, Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963), as has the right to counsel in juvenile proceedings. Kemplen v. Maryland, 428 F.2d 169 (4th Cir. 1970) ; Powell v. Hocker, 453 F. 2d 652 (9th Cir. 1971). Several courts have held that Argersinger will also be applied retroactively. See, e. g., Cordle v. Woody, 350 F.Supp. 479 (E.D.Va.1972) ; Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972) ; People v. Morrissey, 52 Ill.2d 418, 288 N.E.2d 397 (1972). Others, fearful of administrative problems, have not. Potts v. Superintendent, 213 Va. 432, 192 S.E.2d 780 (1972) ; cf. Garrett v. Puckett, 348 F.Supp. 1317 (W.D.Va. 1972).