author: GOLDBERG, Circuit Judge: GODBOLD, Circuit Judge.

text:
    Frank J. ROBINSON et al., Plaintiffs-Appellees, v. COMMISSIONERS COURT, ANDERSON COUNTY, and the Honorable N. R. Link, County Judge, Anderson County, Texas, Defendants-Appellants.
    No. 74-1766.
    United States Court of Appeals, Fifth Circuit.
    Dec. 23, 1974.

      Richard Brooks Hardee, Tyler, Tex., Jerry L. Calhoon, Billy H. Gragg, Palestine, Tex., for defendants-appellants.
    David R. Richards, Austin, Tex., for plaintiffs-appellees.
    Before GOLDBERG, GODBOLD and MORGAN, Circuit Judges.
   GOLDBERG, Circuit Judge:

This case results from a gerrymander of precinct lines in Anderson County, Texas, to dilute the black vote in County Commissioner elections. Unfortunately, the disrespect of voting rights is not a recent innovation in county government in Texas. See generally, Graves v. Barnes, W.D.Tex.1972 (3 judge), 343 F.Supp. 704, aff’d in part sub nom. White v. Regester, 1973, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314; Avery v. Midland County, 1968, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45. Nor, unfortunately, is unconstitutional dilution of voting rights only a very old part of our history. See, e. g., Graves v. Barnes, W.D.Tex.1974 (3 judge), 378 F.Supp. 640. Caesar found Gaul divided into three parts. Here we are confronted with a County Commissioners Court which has cut the county’s black community into three illogical parts in order to dilute the black vote in precinct elections, acting as a modern Caesar dissecting its private Gaul. Such apportionment poisons our representative democracy at its roots. Our constitution cannot abide it.

The district court ordered reapportionment by a prescribed plan, and we affirm its decision. We are always reluctant to displace apportionment decisions from the legislative hands to which they are ordinarily entrusted; our reluctance in this case is overcome by our profound disappointment in the irresponsibility of the exercise to which the local legislative bodv has devoted itself.

I

On December 21, 1973, Plaintiffs-Ap-pellees Frank J. Robinson, Rodney Howard, and Timothy S. Smith, black residents and registered voters of Anderson County, Texas, initiated this suit in the Federal District Court for the Eastern District of Texas against the Commissioners Court and the County Judge of Anderson County (hereinafter Commissioners Court), charging that the then existing apportionment of Anderson County into election precincts was constitutionally unsound under the Fourteenth and Fifteenth Amendments. The Commissioners Court, presided over by the County Judge, is the governing body of Anderson County and is invested with statutory responsibility for districting. Texas Const. Art. 5 Sec. 18, Vernon’s Ann.St.

After a January 30, 1974, hearing on plaintiffs’ motion for a preliminary injunction, the district court entered an order on February 9, 1974, postponing deadlines for the party primaries preceding the Anderson County Commissioners general election. On February 9, the Court also entered an order joining as Defendants Louise C. Graser, Democratic Chairwoman of Anderson County, and Billy Gragg, Republican Chairman. These added defendants were served February 20, 1974, with process requiring an answer within twenty days. On March 5, 1974, the district court held a hearing on the merits, at which the plaintiffs presented a proposed reapportionment plan. The defendant party chairpersons were not present at the March 5 hearing. On March 15, the district court issued an opinion, concluding that the existing precinct lines in Anderson County constituted “a racially motivated gerrymander [prohibited by] Wright v. Rockefeller, 1964, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512, and Gomillion v. Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110, as well as an apportionment scheme operating to minimize or cancel out the voting strength of the black community, White v. Regester, 1973, 412 U.S. 755, 93 S.Ct. 2342, 37 L.Ed.2d 314; Whitcomb v. Chavis, 1971, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363.” Accordingly, the district court entered an order enjoining the Commissioners Court from failing to reapportion the election precincts in a manner consistent with the plaintiffs’ proposed plan, awarding costs and attorneys’ fees against the Commissioners Court, and enjoining defendants Graser and Gragg from failing to postpone certain filing deadlines for the upcoming primaries. Gragg and the Commissioners Court appeal the district court’s March 15, 1974 order. The Commissioners Court argues that the district court was in error in concluding that the existing apportionment plan was constitutionally unsound, that the Commissioners Court was improperly denied an opportunity to submit an alternate plan or to be heard on the feasibility of the adopted plan, and that the reapportionment plan adopted by the district court constituted an impermissible gerrymander itself. Defendant Gragg argues that he was improperly enjoined without a hearing. We affirm the district court’s reapportionment order; we dismiss Gragg’s appeal as moot, and thus vacate the postponement order insofar as it binds him.

II

According to 1970 census figures, which the trial court correctly relied upon as its best evidence of current population distribution, Anderson County contains a population of 27,789. Palestine, the county seat and most significant municipality, has a population of 14,525. Whites make up 20,737 (75%) of the total county population, blacks 6,972 (25%); in Palestine the population is 10,753 (74%) white, and 3,712 (26%) black. The area of greatest black concentration in the county lies in the southwest quadrant of the City of Palestine, within census enumeration districts 21, 22 and 23. Of the 2,219 residents within these census districts, 1,835 (83%) are black; thus, this concentration represents approximately 26% of Anderson County’s total black population.

Anderson County is divided into four precincts, each of which elects one Commissioner to the County Commissioners Court. The County Judge is elected at large. Before 1969, one precinct included the entire of the City of Palestine with its half of the county population, and the remaining expanse of the county was divided among the three other precincts.

In 1969, the Commissioners Court reapportioned Anderson County on the basis of voter registration statistics. Each new precinct contained a part of Palestine. More significantly, the black concentration in Palestine was diced into three parts, each in a different new precinct. In September, 1973, the Commissioners Court modified its 1969 district-ing, effective January 1, 1974, but preserved the fragmentation of the black community along the same lines.

Plaintiffs maintain that the black vote in Anderson County was unconstitutionally diluted by means of this apportionment. The standards for decision in dilution cases are developed primarily in cases dealing with multimember districting. See e. g., White v. Regester, 1973, 412 U.S. 755, 765-770, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314, 324-326; Whitcomb v. Chavis, 1971, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363; Burns v. Richardson, 1966, 384 U.S. 73, 88, 86 S.Ct. 1286, 1294, 16 L.Ed.2d 376, 388, Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401, 405; Turner v. McKeithen, 5 Cir. 1973, 490 F.2d 191; Zimmer v. McKeithen, 5 Cir. 1973 (en banc), 485 F.2d 1297. But

we have no hesitation in applying [those tests to] measure the constitutionality of reapportionment plans involving only single-member districts. In each instance, we are required to determine the same question, whether or not there has been an unconstitutional manipulation of electoral district boundaries so as to minimize or dilute the voting strength of a minority class or interest.

Howard v. Adams County Board of Supervisors, 5 Cir. 1972, 453 F.2d 455, 458 n. 2. We recognized in Zimmer v. McKeithen, supra, 485 F.2d at 1305 that “[t]he Supreme Court has identified a panoply of factors, any number of which may contribute to the existence of dilution.” Some of these are applicable in their detail only in the context of multimember districting. The most significant and general factors also obtain in cases such as the matter at bar, however, where the dilution of a racial group’s voting strength has been arranged by shifting single-member precinct boundaries. Thus,

[w]here a minority can demonstrate a [legal, customary, or practical] lack of access to the process of slating candidates, the unresponsiveness of legislators to their particularized interests, a tenuous state policy underlying the preference for [the established] dis-tricting, or that the existence of past discrimination in general precludes the effective participation in the election system, a strong case is made. . The fact of dilution is established upon proof of the existence of an aggregate of these factors. The Supreme Court’s recent pronouncement in White v. Regester, supra, demonstrates, however, that all these factors need not be proved in order to obtain relief.

Id. See also Turner v. McKeithen, 5 Cir. 1973, 490 F.2d 191, 194.

These standards compel the conclusion that the district court was correct in ruling that the black vote in Anderson County was unconstitutionally diluted under the Commissioners Court’s apportionment. To begin with, we find sufficient evidence to support the district court’s findings that in a general but realistic way the voting strength of the black community in Anderson County “continues to suffer from the effect of oppressive and restrictive voting legislation and racial discrimination generally in the State of Texas. See White v. Regester, [supra, and that] the Commissioners Court of Anderson County has been generally unresponsive to the needs and interests of the black community . ” Specific demonstrations in the record include maintenance of segregation in public schools until 1967, and in other public facilities until 1963, summary dismissal of the county’s black home demonstration agent, and abolition of that agency office, appointment of a juvenile officer who had been forced out of his previous position as deputy sheriff in response to a racial incident. Significantly, while blacks have achieved some recognition in Palestine and School Board politics, no black has ever been elected or appointed to county office, or appointed by the County Commissioners to any board or commission. See generally Leflore County Bd. of Election Comm’rs, supra, 502 F.2d at 624. Turner v. McKeithen, supra, 490 F.2d at 194-195; Zimmer v. McKeithen, supra, 385 F.2d at 1306.

The most crucial and precise instrument of the Commissioner’s denial of the black minority’s equal access to political participation, however, remains the gerrymander of precinct lines so as to fragment what could otherwise be a cohesive voting community. Despite the gross population disparities between precincts, no redistricting in any form was effectuated until 1969, when blacks in Anderson County finally organized and elected Plaintiff Smith the first black Democratic Precinct Chairman — and, thus, the first member of the policy-making County Democratic Executive Committee — in modern times. Compare Moore v. Leflore County Bd. of Election Commissioners, supra, 502 F.2d at 624. Under the County Commissioners’ 1969 apportionment of Anderson County, the County was divided into precincts by two lines, running roughly north-south and east-west, and meeting in Palestine. Were these lines straightened out, they would have left the black community of Palestine compact and cohesive in the southwestern precinct, number two. As the lines were drawn, however, a single wedge intruded from precinct one to capture the central third of the black concentration, and another peninsula extended from precinct four to draw off the westernmost third; thus only one third was left in precinct two. This dismemberment of the black community in the 1969 redistricting — along lines substantially maintained by 1973 adjustments effective January 1,1974 — had the predictable effect of debilitating the organization and decreasing the participation of black voters in county government. Plaintiff Smith was not reelected, and, of course no black has been elected to any county post since. The district court determined on this record that the County Commissioners’ apportionment was designed precisely to dilute the black vote and, mindful of the trial court’s peculiarly local perspective, we find no reason on this record to reject that conclusion as clearly erroneous. Cf. Gom-illion v. Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110.

The Commissioners Court sought at trial and seeks here to legitimize its apportionment by showing that its precinct lines were simply a product of an attempt primarily to equalize population between precincts in accordance with Reynolds v. Sims, supra, and secondarily to equalize rural road mileage among precincts. It is clear, however, that the mere fact that an apportionment plan may satisfy some legitimate governmental goals does not automatically immunize it from constitutional attack on the ground that it has offended more fundamental criteria. And on this record, there is ample evidence to justify the district court’s discounting the Commissioners Court’s asserted rationale. As to population equalization, the evidence is uncontradicted that the Commissioners Court apportionments ignored all census data regarding population distribution, relying instead on voter registration statistics. The result was unjustified population deviation among precincts (as defined in the plan effective January 1, 1974), reaching 11% between precincts three and four. See generally Ely v. Klahr, 1971, 403 U.S. 108, 115 n. 7, 91 S.Ct. 1803, 1807, 29 L.Ed.2d 352, 357; Burns v. Richardson, 1966, 384 U. S. 73, 90-97, 86 S.Ct. 1286, 1295, 16 L.Ed.2d 376, 390-393. By contrast, the plan adopted by the trial court clearly demonstrates the feasibility of constructing cohesive precinct lines based on 1970 census enumeration districts and recognized physical boundaries which diminish deviation to a fraction of one percent. We have noted that the equalization of county road mileage between Commissioners is a “legitimate planning objective” in reapportionment, Moore v. Leflore County Bd. of Election Comm’rs, 5 Cir. 1974, 502 F.2d at 626, [1974]; Howard v. Adams County Bd. of Supervisors, 5 Cir. 1972, 453 F.2d 455, 456. But there was no suggestion here that equalization of responsibility for rural road mileage had ever been considered important in allocating precincts in Anderson County before 1969. Rural mileage did not suddenly become a reality in 1969; more likely the rising political consciousness of the black population was 1969’s significant new reality. Indeed, before 1969, little rural mileage had been entrusted to the Commissioner whose precinct included the municipal half of the county. Moreover, there is no suggestion in the record that the rural precinct boundaries — which, as the district court found, followed neither census districts nor logical boundaries— could not easily have been adjusted to equalize population and road mileage without gerrymandering in Palestine. Thus obtaining equal division of rural road mileage is an insufficient ratiocination for this constitutionally impermissible districting: here it was not a reason at all — merely an excuse for perpetuating a governing body unrepresentative of the black citizenry.

We find ample support for the district court’s findings of fact, and affirm its conclusion that the Commissioners Court’s apportionment effective January 1, 1974, was constitutionally unacceptable.

Ill

The Commissioners Court raises two basic objections to the district court’s adoption and implementation of the plaintiffs’ proposed districting plan.

It argues first that the district court erred in implementing its remedy simultaneously with its invalidation of the existing apportionment, because “judicial relief becomes appropriate only [if the Commissioners Court] fails to reapportion according to federal constitutional requisites in a timely fashion after having an adequate opportunity to do so,” Reynolds v. Sims, 1964, 377 U.S. 533, 586, 84 S.Ct. 1362, 1394, 12 L.Ed.2d 506, 541, and because there was no opportunity even to raise objections to the feasibility of the adopted plan. We find no merit in these contentions.

The Commissioners Court was afforded an adequate opportunity to litigate the merits of the apportionment plan adopted by the district court. The complaint advised that the relief sought would include a reapportionment of Anderson County into Commissioners precincts, and at the hearing on the preliminary injunction the Commissioners Court was advised that the plaintiffs would present their proposed plan at the hearing on the merits. At the March 5, 1974, trial on the merits, the plaintiffs presented their plan, with supporting testimony, and the Commissioners Court did establish, and had an opportunity to develop, its objections to the proposed plan.

Moreover, the trial court did not err in adopting the plaintiffs’ plan as effective for the November, 1974, election of two Anderson County Commissioners, and for the preceding May primaries. Plaintiffs had proposed a plan drawn on census enumeration districts and recognized boundaries which contained no significant population variance and restored the dismembered black community in southwest Palestine to a single precinct. The Commissioners Court neither proposed an alternative plan, suggested why a constitutionally acceptable plan could not be implemented in time for the upcoming election, nor requested additional time to prepare an alternative plan to be effective for the election. Apparently its position was that the district court should delay consideration of relief until the Commissioners Court reevaluated its precinct lines as it had originally scheduled, during its August, 1974, term. The “adequate opportunity” language in Reynolds v. Sims, supra, does not mean, however, that a federal court must invariably await legislative action after it declares existing apportionment unconstitutional before it directs a proper apportionment. To the contrary, as the Supreme Court established in Reynolds v. Sims, supra, 377 U.S. at 585, 84 S.Ct. at 1393, 12 L.Ed.2d at 541; “once a . legislative apportionment scheme has been found to be unconstitutional, it would be the unusual ease in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan.” Moreover, in approving relief designed by a district court “faced with severe time pressures” on account of an impending election, the Supreme Court observed in Mahan v. Howell, 410 U.S. 315, 332, 93 S.Ct. 979, 989, 35 L.Ed.2d 320, 334, that

[application of interim remedial techniques in voting rights cases has largely been left to the district courts. Reynolds v. Sims, supra, 377 U.S. at 585, 84 S.Ct., at 1393, 1394 [12 L.Ed.2d at 541]. The courts are bound to apply equitable considerations and in Reynolds it was stated that “[i]n awarding or withholding immediate relief, a court is entitled to consider the proximity of a forthcoming election . . .” Ibid.

We conclude that, given the compelling constitutional infirmities in the existing apportionment scheme, the district court did not err in adopting the only plan offered for implementation in time to resume orderly progress toward the November, 1974, election. See, e. g., Mahan v. Howell, supra; Connor v. Johnson, 1971, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268; Turner v. McKeithen, supra, 490 F.2d at 196-198; Graves v. Barnes, W.D.Tex.1972 (3 judge), 343 F.Supp. 704, 736, aff’d in part sub nom. White v. Regester, supra; Graves v. Barnes, W.D.Tex.1974 (3 judge), 378 F.Supp. 640 at 663.

The Commissioners Court next attacks the substance of the reapportionment plan adopted by the trial court on the ground that it results in one precinct’s containing a 53% black population. The district court’s plan, in addition to respecting the integrity of the black community in southwest Palestine, follows established census enumeration lines and recognized physical boundaries, including Palestine city limits, and reduces population variance among precincts to less than one percent, according to 1970 census figures. The Commissioners Court, of course, submitted no alternatives. Its alternative here is essentially that the trial court, after correctly determining that the Commissioners Court had impermissibly gerrymandered so as to dilute the vote of a racial group, should have rejected the plaintiffs’ proposed reapportionment and designed a remedy which would accomplish the same dilution as the original invalid apportionment. We find the able district court’s plan a proper exercise of its equity powers. See Zimmer v. McKeithen, supra, 485 F.2d at 1308.

IY

Defendant Gragg, the Republican Party Chairman for Anderson County, argues as a final specification of error that the trial court erred in ordering the Chairpersons of the Anderson County Republican and Democratic parties to postpone certain filing deadlines. The County Democratic Party Chairwoman does not appeal. These defendants had no substantive interest in the reapportionment itself which would make them necessary parties to the reapportionment order. The trial court apparently accepted the plaintiffs’ argument that the party chairpersons were properly subject to the postponement order, pursuant to Fed.R.Civ.Proc. 71, if not otherwise. We cannot consider the issue now, however, because the filing deadlines as postponed and the primary election date have already passed, and the order did not apply to future elections; the issue is moot as between Gragg and these plaintiffs. See, e. g., DeFunis v. Odegaard, 1974, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164; Hollon v. Mathis Independent School Dist., 5 Cir. 1974, 491 F.2d 92; United States Servicemen's Fund v. Killeen Independent School Dist., 5 Cir. 1974, 489 F.2d 693. See also Gooden v. Mississippi State Univ., 5 Cir. 1974, 499 F.2d 441 (citing recent cases).

V

In sum, the constitutional geometries of representative districting do not add up to minimizing black electoral clout. Demographic manipulation to accomplish racial dilution, like many other ethnic relics, has been constitutionally interred.

The district court’s order is affirmed insofar as it binds the Anderson County Commissioners Court and County Judge; the appeal of the Anderson County Republican Party Chairman is dismissed as moot, and the order of postponement, insofar as it applied to the County Republican Party Chairman is accordingly vacated.

GODBOLD, Circuit Judge.

I concur in the result.

      . Counsel for the plaintiffs advised the trial court that he had notified them of the hearing, but tlie quality and timing of that notification was not explored.

      . The District Court amended its March 15, 1974 order on March 21, 1974, and on March 22, 1974, to provide for tenure of current commissioners as representatives of the newly drawn precincts, to suspend residency deadlines, and to effect technical corrections in its March 15, 1974 order. The substance of these adjustments is not in controversy.

      . In Howard v. Adams, 5 Cir. 1972, 453 F.2d 455, 457-458 we recognized that
      to establish the existence of a constitutionally impermissible redistricting plan, in the absence of malapportionment, plaintiffs must maintain the burden of proving (1) a racially motivated gerrymander, or a plan drawn along racial lines, Wright v. Rockefeller, 1964, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512; Gomillion v. Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110; Sims v. Baggett, M.D.Ala. 1965, 247 F.Supp. 96, or (2) that “. . . designedly or otherwise, a[n] . . . apportionment scheme, under the circumstances of a particular ease, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” Burns v. Richardson, 1966, 384 U.S. 73, 88, 86 S.Ct. 1286, 1294, 16 L.Ed.2d 376. See Whitcomb v. Chavis, 1971, 403 U.S. 124, 143-144, 149, 91 S.Ct. 1858, 29 L.Ed.2d 363.

        Accord, Zimmer v. McKeithen, supra. These two categories of invalidity are, of course, not mutually exclusive. We need not explore here the extent of their overlap in single member district cases such as that at hand; and we pretermit consideration of whether Gomillion v. Lightfoot alone would resolve this case.

      . The division of the county here was thus quite different from that approved in Howard v. Adams County Bd. of Supervisors, supra.

      . See White v. Regester, supra, 412 U.S. at 769, 93 S.Ct. at 2341, 37 L.Ed.2d at 326.

      . A third consideration suggested by one witness for the Commissioners Court was to arrange the intersection of three precincts at the County Courthouse to enable three justices of the peace to use those facilities and still sit within tlieir districts. But this required only a slight “dogleg” in precinct four, and “affected the population count very little.” Appendix at 177.

      . Although Plaintiffs urge to the contrary, we pretermit, as did the trial court, consideration of whether this deviation alone suffices to establish the unconstitutionality of the Commissioners Court’s apportionment.

      . Furthermore, apparently no attention was devoted to municipal road mileage in drawing the 1969 or 1974 precinct lines, although the county occasionally shared responsibility for maintaining city roads. Appendix at 186.

      . Anderson County is divided into 37 census enumeration districts. All of these districts are compact except for numbers 13 and 19, both of which consist of scattered and unattached but discreet pockets around the City of Palestine. All of census enumeration district 19 is included in one precinct. District 13 is divided between two precincts, but its independent components are each wholly within one i>recinct or the other.

      . The Commissioners Court’s brief raises this issue, presumably for the benefit of co-appellant Gragg, who has simply adopted the Commissioners Court brief as his own. The order to postpone filing dates did not run against the Commissioners Court; thus they have no standing to appeal it.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Raymond WERTIS, Defendant-Appellant.
    No. 74-1742.
    United States Court of Appeals, Fifth Circuit.
    Dec. 20, 1974.
    Rehearing Denied Feb. 10, 1975.

      Ronald I. Strauss, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Miami, Fla., Marty Steinberg, Spec. Atty., U. S. Dept. Justice, Miami Strike Force, Miami, Fla., Thaddeus B. Hodgdon, Atty., Appellate Section, Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before GEWIN, AINSWORTH and GEE, Circuit Judges.
   PER CURIAM:

Record evidence indicates that in 1970 Appellant Wertis, then a Dade County police sergeant, was selling copies of grand jury subpoenas to participants in an illegal bookmaking enterprise operating in the North Miami area. He was furnished these by his wife, a telephone company employee. Since these subpoenas were issued in order to gather subscriber information about telephone numbers of suspected bookmakers, Wer-tis’ vendees were eager to know whether and when their numbers were listed. On more than one occasion they were able, by use of Wertis’ information, to close operations at a listed number and so anticipate and evade the investigation. Convicted on three counts of conspiracy to conduct and abetting the operation of illegal gambling, as well as conspiracy to obstruct Florida law, he received concurrent two-year terms on each. He advances five points on this appeal.

As his lead point, Wertis asserts error in the district court’s refusal to permit his counsel to conduct an in-person voir dire or to ask the jury questions in certain areas supposedly not touched on by the court’s inquiries. The district court has broad discretion in the conduct of the voir dire examination and may do so to the exclusion of counsel. F.R.Crim.P. 24(a); Hawkins v. United States, 434 F.2d 738 (5th Cir. 1970). As for the complaint of refusal by the court to ask additional questions proposed by appellant’s counsel, the portions of the record to which we are cited reveal no such request, but a mere exposition by counsel of areas in which he would ask questions were he permitted to do so. The impression left by the passage upon which appellant relies is of a strong and reiterated request by counsel himself to interrogate, with an indication that nothing else would serve— not of a request that the court ask further questions. Anyhow, the “areas” in which he manifested interest were either improper for voir dire or adequately covered in the court’s very thorough interrogation of the jurors. The point is meritless.

Complaint is next made that asserted Brady material was produced too late to be of maximum use to the defendant: at rather than before trial. The items concerned are statements and “rap sheets” tending in minor ways to impeach the testimony and in more significant degree to degrade the characters of unindicted co-conspirator witnesses. In main, this is classic Jencks Act matter, required to be disclosed only after each witness had testified and usable by the defense only for impeachment; minor inconsistencies which tend to impeach the government’s theory of witnesses in small degree do not elevate Jencks Act statements to the status of Brady materal. United States v. Harris, 458 F.2d 670 (5th Cir. 1972). Nor as to these or the rap sheets does appellant appear to have been harmed by the timing of disclosure, the subject of his sole complaint, having used the frail weapons so presented him to full advantage.

Wertis’ final complaint which merits brief discussion is that the court erred in refusing to permit a psychiatrist to opine whether a principal prosecution witness “ . . . would . have a tendency to be reliable as a witness in distinguishing the truth from non-truth, realities from fantasies . ” Such a question as that proffered is beyond the competence of any witness. Peeled of its thin veneer of jargon, it amounts to no more than an inquiry whether the witness is to be believed by the jury or not. And though it approaches somewhat to the admissibility line, it lies at about the same distance on its wrong side as those approved in Partin lie on its right. These concerned the existence vel non of a deviant mental condition and the effect of that condition on the witnesses' capacity to see and hear. The Partin inquiries test the witnesses’ capacity and competence; the instant ones place the psychiatrist in the posture of a com-purgator (or anti-compurgator). At all events, the exclusion of this inquiry was plainly harmless: the witness who was its subject was only one of several who testified to essentially the same matters, and his credibility was placed in hot issue by use, among other materials, of the medical records, later admitted in evidence.

Appellant's final two points are foreclosed by the concurrent sentence doctrine.

Affirmed.

      . 18 U.S.O. §§ 2, 371, 1511 & 1955.

      . This is especially so in view of counsel’s statement, just before asking to interrogate personally, that he had “no further questions.”

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . 18 U.S.C. § 3500.

      . The point is wrapped (and well-nigh concealed) in another: complaint of the exclusion of certain medical records upon which the excluded testimony would be based. Since they were offered solely for this impermissible purpose,, their exclusion at that point was not harmful.

      . United States v. Partin, 493 F.2d 750 (5th Cir. 1974).

      . That one of the counts upon which he was convicted was multiplicitous with another, and that two of the counts properly carry lesser punishments than he received.


author: LEWIS R. MORGAN, Circuit Judge:

text:
    J. S. SKINNER, Jr., etc., et al., Plaintiffs-Appellees, v. W. Bruce WHITE, A. Lamar Reid, etc., Jefferson National Equities, et al., Defendants-Appellants.
    No. 73-2695.
    United States Court of Appeals, Fifth Circuit.
    Dec. 23, 1974.

      L. Murray Alley, Jos. F. Johnston, W. S. Starnes, Birmingham, Ala., for defendants-appellants.
    James L. Shores, Jr., Charles E. Clark, Birmingham, Ala., for Jefferson Memory Co.
    James E. Clark, Birmingham, Ala., for St. Sec. Life Ins. Co.
    William B. Hairston, Jr., Birmingham, Ala., for Cumberland Capital.
    To Eric Embry, Clifford Reeves, Stanford J. Skinner, Birmingham, Ala., for plaintiff s-appellees.
    Before GODBOLD and MORGAN, Circuit Judges, and BOOTLE, District Judge.
   LEWIS R. MORGAN, Circuit Judge:

This appeal is from a judgment of contempt and the attendant sanctions entered against defendants-appellants. The underlying facts are intensely complicated, but will be presented summarily since the issues on appeal concern only the contempt proceeding itself. For reasons stated below, we reverse the judgment of the district court.

The initial complaint was filed on November 1, 1968, by appellee J. S. Skinner, Jr., on behalf of himself and all other owners of interment rights in two cemeteries. The named defendants were W. Bruce White, A. Lamar Reid, Jefferson National Equities Corporation (hereafter “Equities”), Jefferson Memory Corporation (hereafter “Memory”), and certain other corporations not involved in this appeal. State Security Life Insurance Company (hereafter “State Security”) was later joined as a defendant. State Security, the owner of the real property on which the two cemeteries are located, is a publicly held life insurance company. Memory, a subsidiary of Equities, owns 420,000 shares of State Security stock, and prior to the suit operated the cemetery under a management contract with State Security. Memory was the beneficiary of four trusts created to fund the maintenance and care of the cemeteries; White, Reid, and Clarence Bishop, Jr., were directors of Memory. At the time the suit was instituted, Reid was also trustee of the four trusts. The gravamen of the complaint was mismanagement and diversion of assets from the four trusts.

Defendants denied several of the allegations and raised affirmative defenses, but extensive discovery delayed trial for almost three yeax-s. On October 18, 1971, upon commencement of the non-jux-y trial, the district judge announced that he had determined that the suit was maintainable as a class action. Rather than try the case, attorneys for all parties then engaged in three days of settlement negotiations, apparently hoping to produce a mutually acceptable monetary judgment sufficient to fund the four trusts and pay plaintiff’s attorney’s fees and expenses. On October 21, after a brief hearing, the district judge entered findings of fact and conclusions of law. Among the more important provisions were the following:

(1) that Reid would be replaced as trustee by Exchange Security Bank, would turn over to the bank the trust assets, and would be excused from any further accounting;

(2) that since 1964, the assets of the four trusts had been diminished in value and that a contribution by Memox-y of $615,000 would adequately fund the trusts and cover plaintiff’s attorney’s fees;

(3) that one of Memox-y’s chief assets, the 420,000 shares of State Security, was hypothecated for presently existing indebtedness;

(4) that in the event of a future hy-pothecation of Memory’s State Security stock within five years of the date of the decree, Memory would immediately pay $50,000 to the trustee, and in the event of a sale of the stock during the five years, Memory would pay the sale proceeds up to $50,000 to the trustee;

(5) that the trust instruments would be amended to make the trustee subject to futux-e control by the district court.

On November 15, 1972, Skinner petitioned the court to require appellants to show cause why they should not be held in contempt of court for having allegedly violated certain provisions of the 1971 decx-ee. Four specific violations were alleged :

(1) that Equities, rather than Memory, had made the required $50,000 payment to the trustee upon the sale of part of Memory’s State Security stock in October, 1972;

(2) that Memory had filed two law suits which “could substantially affect the effectuation of the decree in this case”;

(3) that Memory had failed to make payments due under the decree;

(4) that Memory had failed to make semi-annual audit reports to the court and trustee as required by the trust instruments attached to the decree.

Shortly after the opening of the contempt hearing, on January 23, 1973, plaintiff’s counsel made an announcement which dramatically altered the course of the proceedings and spawned the issues argued before this court. “Well, these two law suits will disclose some things,” he said,

. which were actions taken at the time that we were negotiating the decree in the case that constitute a fraud upon the court and upon the plaintiff in this case in the entering into of the decree which we say is a contempt of this court.

Over appellants’ protests that they were unprepared to defend themselves against this charge, the court conducted a two-day hearing culminating in a judgment of contempt against appellants. The court’s judgment makes no reference to the four charges in appellee's petition; rather, it appears to rest on a finding of “fraud on the court” in negotiating the October, 1971, decree, and in diverting a portion of Memory’s assets.

As instances of the first type of conduct, the court found that:

(1) The $350,000.00 loan of October 15, 1971 which was collateralized with the stock of State Security Life Insurance Company owned by Jefferson Memory Company was never disclosed to any attorney appearing before the Court in this matter prior to or at the time the decree of October 21, 1971, was entered;
(2) The decree of October 21, 1971, was obtained by fraud committed on this Court by Jefferson National Equities Corporation, State Security Life Insurance Company, A. Lamar Reid, and W. Bruce White. . . .

The diversion ruling was limited to one finding of fact;

The Court finds ... a diversion and misapplication of assets of Jefferson Memory Company by W. Bruce White and A. Lamar Reid, which misapplication was aided and assisted by . . . State Security Life Insurance Company, and the Jefferson National Equities Corporation, each acting with knowledge of the actions and conduct of each of the others. The said diversion of assets, and the failure to disclose those diversions, constitute a fraud upon and contempt of this Coui’t.

Among the many sanctions imposed by the court were the following:

(1) the unpaid balance ($470,245.34) of the judgment rendered against Memory in the October, 1971, decree was declared due immediately;

(2) White, Reid, Equities, and State Security were held liable to Memory for $468,408.00, the amount of Memory’s assets found to have been diverted;

(3) a contract between Equities and State Security for the sale of 110,532 shares of Memory’s State Security stock was made the property of Memory;

(4) a 1968 voting trust agreement governing Memory’s State Security stock was “cancelled, abolished, and held to be null and void and of no effect”;

(5) the debt of Richard V. Moore, President of State Security, to Equities and 58,976 shares of State Security stock pledged to secure the debt were declared to be the property of Memory;

(6) a lien was established on all Memory’s assets in favor of Exchange Security Bank, the court-appointed trustee, for the amount of any present and future liability to “all purchasers of markers, merchandise, and prepaid interment services . . . ”;

(7) White and Reid were removed as directors and officers of Memory, and Equities was enjoined from voting its stock in Memory;

(8) Clarence E. Bishop, Jr., a director of Memory, was ordered to organize a non-profit corporation to perform the services previously performed by Memory, and State Security was ordered to negotiate a new cemetery management contract with the non-profit corporation.

Appellants’ first contention is that the proceeding below failed to satisfy the most basic requirements of a valid contempt proceeding; it was impossible, they say, to determine whether they were being tried for civil or criminal contempt. In this contention we think they are clearly correct.

The essential distinctions between civil and criminal contempt are that :

(1) civil contempt lies for refusal to do a commanded act, while criminal contempt lies for doing some forbidden act;

(2) a judgment of civil contempt is conditional, and may be lifted if the con-temnor purges himself of the contempt, while punishment for criminal contempt is unconditional;

(3) civil contempt is a facet of the original cause of action, while criminal contempt is a separate cause of action brought in the name of the United States;

(4) the notice for criminal contempt must indicate the criminal nature of the proceeding. Gompers v. Buck’s Stove and Range Company, 221 U.S. 418, 441-445, 31 S.Ct. 492, 55 L.Ed. 797 (1911); De Parcq v. United States District Court for Southern District of Iowa, 235 F.2d 692, 699 (8th Cir. 1956), 11 Wright and Miller, Federal Practice and Procedure, § 2960 (1973).

The hearing below demonstrated traits of both criminal and civil contempt. For example, a charge of “fraud on the court,” implies a direct insult of the court’s dignity and authority, and therefore would seem to be in the nature of criminal contempt. Kienle v. Jewel Tea Company, 222 F.2d 98, 99 (7th Cir. 1955); Walling v. Crane, 158 F.2d 80, 83 (5th Cir. 1946).

A second indication of the criminal nature of the proceeding is that it did not possess one of the essential prerequisites of a civil contempt hearing: it was not predicated on disobedience of a prior court order. Boylan v. Detrio, 187 F.2d 375, 378-379 (5th Cir. 1951). As indicated above, the contempt judgment here rested on a finding of “fraud on the court,” in (1) misrepresentation and non-disclosure in procurement of the October, 1971, decree, and (2) undisclosed diversions of Memory’s assets. Neither of these findings was based on disobedience of a prior court order.

The nature of the sanctions is a third factor indicating that the proceeding could not have been civil. Clearly, some of the sanctions imposed by the district court would not terminate upon appellants’ compliance with the terms of the decree. As this Court said in Lance v. Plummer, 353 F.2d 585, 592 (5th Cir. 1965):

since sanctions imposed in civil contempt proceedings must always give to the alleged contemnor the opportunity to bring himself into compliance [with the prior court order], the sanction cannot be one that does not come to an end when he repents his past conduct and purges himself.

See also International Business Machines Corp. v. United States, 493 F.2d 112, 115 (2nd Cir. 1973) wherein the court stated, “The hallmark of civil contempt is that the sanction imposed is only contingent and coercive.”

Despite all this, the trial court seems to have viewed the proceeding as one for civil contempt, since it cited the Federal Rules of Civil Procedure as governing its conduct. Additionally, the sanctions were not imprisonment or a fine payable to the government, the only varieties of punishment permissible for criminal contempt under 18 U.S.C. § 402. Finally, the pleadings seem to assume that the contempt proceeding is a mere extension of the original action; plaintiff’s attorneys, not the government, prosecuted the case in their client’s name.

This mélange of civil and criminal traits prevents, even on appeal, a determination of the true character of the proceedings; obviously, the parties encountered at least as much difficulty in divining its nature while it was going on. We thus face a situation similar to that which we encountered in Clark v. Boynton, 362 F.2d 992, 994 (5th Cir. 1966) where we said:

The simple fact is that no one, simply no one, is able to determine whether this was begun, tried, or ended as a case for criminal contempt, civil contempt, or both, or whether someplace down the trail, begun as one it was transmuted into the other. This is, of course, one thing about which there may not be any doubt if a contempt order is to stand. Cliett v. Ham-monds, 5 Cir., 1962, 305 F.2d 565.

For this reason alone, therefore, the district court judgment must be reversed. Even if we were to find, however, that the proceeding was clearly civil or criminal, the judgment would still have to be reversed, since the procedural requisites for either type of hearing were absent. Assuming the trial to have been criminal in nature, reversal would be mandated by the court’s failure to follow the requirements of Federal Rule of Criminal Procedure 42(b) as to adequate notice. Clark v. Boynton, 362 F.2d 992, 996 (5th Cir. 1966). Additionally, as noted above, the sanctions imposed were impermissible as part of a criminal contempt judgment.

Our assessment of the proceeding is similar if we assume that it was civil in nature. Pleading requirements of Rule 8, Federal Rules of Civil Procedure, were not satisfied, since the charge of “fraud on the court” was not made until after the hearing had begun. Additionally, the court adjudicated “diversion of assets” claims by Memory, claims which were extraneous in a hearing devoted solely to the issue of contempt. As noted above, civil contempt can rest only on contravention or disobedience of a prior court order, a situation not present here. Finally, because the sanctions imposed were not contingent on the alleged contemnor’s failure to comply with the order, they exceeded the range of permissible civil contempt sanctions. Lance v. Plummer, 353 F.2d 585, 592 (5th Cir. 1965).

Appellants’ second contention, that they had inadequate notice of the contempt charges, is likewise meritorious. As we have observed, appellees’ show cause motion made no mention of the fraud on the court charge; rather, it was introduced for the first time during the hearing itself. This is constitutionally inadequate notice, violative of appellants’ rights under the due process clause of the Fourteenth Amendment. The proposition that reasonable notice is one of the indispensable elements of due process requires no citation. And, of course, an alleged contemnor is entitled to the protection of the due process clause. Cooke v. United States, 267 U.S. 517, 537, 45 S.Ct. 390, 69 L.Ed. 767 (1925).

Here, appellants were prepared to answer, and did defend themselves against, the four charges in the original petition. Despite their protests that they had had no notice of the fraud on the court charge, they were required to proceed with a two-day hearing on this dangerously imprecise, issue. Although what constitutes “reasonable” notice varies depending on the factual context, such vague, oral, untimely notice as occurred here is clearly not reasonable. See Matusow v. United States, 229 F.2d 335 (5th Cir. 1956); Philippe v. Window Glass Cutters League of America, 99 F.Supp. 369, 374-375 (W.D.Ark.1951). The Supreme Court long ago condemned the adjudication of contempt charges raised for the first time at the hearing itself. In Ex parte Bradley, 7 Wall. 364, 372-373, 19 L.Ed. 214 (1868), the court wrote:

The judges admit that the rule to show cause . . . called upon him to answer simply for the act and conduct specified as for a contempt; yet they insist that, after the return of the [defendant attorney] to the rule in answering the contempt, they had a right in considering the answer, if any other offense appeared therein cognizable by the court, it was competent to take notice of it, and inflict punishment accordingly.
We cannot assent to this view. It assumes the broad proposition, that the attorney may be called upon to answer an offense specified and, when the answer comes in, without any further notice or opportunity of defense or explanation, punish him for another and distinct offense. Certainly no argument can be necessary to refute such a proposition. It violates the commonest and the most familiar principles of criminal jurisprudence.

Finally, fraud on the court is exactly the sort of serious, complex charge for the defense of which adequate preparation is most necessary; timely notice was not a mere formality here, but the key to appellants’ ability to defend themselves. Two members of the bar were being called upon to defend themselves instantly against the charge that they had- perpetrated a fraud on a federal judge in a matter so factually complex that the judge himself admitted at the end of the hearing that it would be “difficult for most anyone ... to get a complete grasp of [it] . . . in two days.” Under these circumstances, appellants simply did not receive due process.

Appellants raise numerous objections to the district court’s findings of fact. Because of the procedural inadequacies which precluded a fair and complete hearing, however, we need not consider whether these findings were correct.

For the reasons stated above, the order of the district court is reversed and the case is remanded.

      . A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment. Rule 42(b), Federal Rules of Criminal Procedure.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. James D. DUCHARME, Defendant-Appellant.
    No. 74-2013.
    United States Court of Appeals, Ninth Circuit.
    Oct. 29, 1974.

      John Rakus, Sacramento, Cal., for defendant-appellant.
    Dwayne Keyes, U. S. Atty., Sacramento, Cal., for plaintiff-appellee.
    Before MERRILL and HUFSTED-LER, Circuit Judges, and TAYLOR, District Judge.

       Of the District of Idaho, sitting by designation.

   PER CURIAM:

The appellant has appealed from his conviction on two counts of having knowingly and wilfully supplied false information on his Employees Withholding Exemption Certificates in violation of Title 26 U.S.C. § 7205. He was sentenced to serve a period of six months on each count, to run concurrently, to be confined in a jail-type institution for 60 days to be served on weekends, and the balance of the sentence of imprisonment was suspended and appellant was placed on probation for a period of three years. As a condition of probation, appellant was ordered to pay a fine of $500 and the costs of prosecution.

After carefully reviewing the record, we are of the opinion that the conviction of appellant should be affirmed, but that the sentence imposed must be, and hereby is, modified by eliminating therefrom only the condition of probation that appellant pay “the costs of prosecution.” Section 7205 does not authorize the assessment of costs in addition to a fine as do other sections of Title 26, e. g., 7201, 7202 and 7203. The maximum fine authorized for a violation of § 7205 is $500 and the assessment of costs of prosecution is tantamount to increasing that fine.

Appellant, protesting the withholding of income tax from his wages, elected to file false withholding tax forms, in order to make certain that no taxes would be withheld, by specifying a sufficient number of nonexistent dependents, by falsely declaring he incurred no liability for Federal income tax for the previous year (1971) and that he would not incur any liability for income tax for 1972.

The offense under § 7205 is proven when a person, required by law to complete and file an income tax withholding exemption certificate, intentionally uses the form to supply false information. United States v. Smith, Wright, and Poulsen, 487 F.2d 329 (9th Cir. 1973); United States v. Milton Harold Ironfield, (9th Cir. slip sheet No. 74-1031 dated September 19, 1974); United States v. Malinowski, 472 F.2d 850 (3rd Cir. 1973). It is clear from the record that appellant filed the forms knowing the information supplied thereon was false.

A primary contention argued by appellant is that the instruction on the issue of wilfullness was inadequate and incorrect for the reason that the court did not include the words “bad purpose” or “evil motive,” as requested. He argues that United States v. Bishop, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973) required the trial court to include the requested language. We do not agree. The court clearly instructed the jury in regard to the applicable law and the meaning of “wilfull” even though the language used did not include the words “bad purpose” or “evil motive.” The instructions given by the court were in substantial compliance with Bishop and appellant’s requested instruction would not have added anything. United States v. Smith et al., supra; United States v. Hawk, 497 F.2d 365 (9th Cir. 1974).

Appellant argues that he was denied a speedy trial in that eight months elapsed between the date of the offense and the indictment, and a delay of 11 months between indictment and trial. The record shows that there was no attempt by the government to delay the trial and no assertion by appellant of denial of a speedy trial until the morning of the trial. Moreover, appellant has not shown any prejudice as a result of the claimed delay. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) holds that the guarantee of a speedy trial is applicable only after a person has been accused of a crime. The delays as shown by the record here do not justify appellant’s speedy trial argument under the rule as set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

Appellant has raised several other issues and after carefully considering them we are of the opinion that none of them have any merit. Appellant was accorded a fair and impartial trial and no reversible error occurred thereat.

Affirmed.

      . Section 7205 provides:
      “Any individual required to supply information to his employer under section 3402 who willfully supplies false or fraudulent information, or who willfully fails to supply information thereunder which would require an increase in the tax to he withheld under section 3402, shall, in lieu of any other penalty provided by law (except the penalty provided by section 6682), upon conviction thereof, be fined not more than $500, or imprisoned not more than 1 year, or both.”

      . “You are instructed that in this matter, in order to constitute the offense charged against the defendant, you must find that he willfully supplied false or fraudulent information to an employer under Section 3402, Title 26, United States Code. If you find that the iigure written upon the W-4 form were [sic] entered as a result or mistake, inadvertence, or error, that is nonsufficient to constitute the offense charged against the defendant.”
      # s& s;< ♦
      “An act is done knowingly, if done voluntarily and intentionally with complete awareness and not because of mistake or accident.
      An act is done willfully if done voluntarily and intentionally, with the specific intent to do something the law forbids, that is, with the intent to disobey or disregard the law.
      You may not treat the defendant’s belief and the uneonstitutionality of the income tax as a possible negation of criminal intent. The defendant’s motivation in this case, the fact that he was engaged in a protest in his sincere belief that he was acting in a good cause, is not an acceptable legal defense or justification.
      The offenses charged in the Indictment are complete when a person required by law to complete and file a withholding form knowingly and willfully uses the form to supply false information to his employer. It is not necessary for the government to show that the defendant intended to defraud the government or his employer or that the government or his employer relied upon the false form or that the government lost revenue as a result of the defendant’s actions.” [R.T. pg. 406-407]


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Rocco Salvatore LUPINO, Appellant.
    Nos. 74-1339 and 74-1340.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 17, 1974.
    Decided Nov. 5, 1974.
    Certiorari Denied March 17, 1975.
    See 95 S.Ct. 1401.

      Douglas Thomson, St. Paul, Minn., for appellant.
    Joseph Walbran, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before GIBSON, Chief Circuit Judge, and LAY and STEPHENSON, Circuit Judges.
   PER CURIAM.

On October 24, 1972, the defendant Lupino was sentenced to two years on each of two counts of receiving a firearm as a convicted felon and five years on a related conspiracy charge. The district court, the Honorable Miles W. Lord presiding, directed that the sentences were to run consecutively with one another and to run consecutively with a state sentence previously imposed. We affirmed the convictions. United States v. Lupino, 480 F.2d 720 (8th Cir.), cert. denied, 414 U.S. 924, 94 S.Ct. 257, 38 L.Ed.2d 159 (1973).

Thereafter a motion to reduce the sentence was filed pursuant to Rule 35, Fed.R.Crim.P., and the district court modified the original sentence by directing that the nine-year federal sentence be served concurrently with rather than consecutively to the state sentence. The court at that time expressly stated in its written order that the sentence was to begin “from the time that state sentence was imposed.” The Director of the United States Bureau of Prisons accepted the court’s recommendation and designated the Minnesota State Prison at Stillwater as the place of confinement.

Shortly after sentencing, the United States Attorney wrote to Judge Lord stating that his amended judgment was defective and should be corrected. Judge Lord held a hearing on April 29, 1974, and stated that he intended in the amended judgment that the “sentences run concurrently with the state sentence from the date of October 24, 1972.” This was the date the original federal sentence was imposed. The defendant contended that under the original sentence the federal term had commenced on April 7, 1960, and that since nine years had already passed prior to December 17, 1973, his sentence expired at the time he entered federal custody. On April 29, 1974, Judge Lord amended his order so that the federal sentences would run concurrently with the state sentence from the date of imposition of the federal sentence, to wit, October 24, 1972.

Defendant challenges the district court’s power to amend the sentence under Rule 36, Fed.R.Crim.P., as it did on April 29, 1974. He concedes that the erroneous sentence would constitute a windfall; he nevertheless urges that the district court’s error was not a clerical one and not subject to amendment under Rule 36. He also says that the modification has the impermissible effect of increasing a sentence after its imposition.

It is clear from the transcript at the time of sentencing that the court intended that the federal sentence was to run from the time of the sentencing proceeding. Tit. 18 U.S.C. § 3568 states:

The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. .

The statute concludes: “No sentence shall prescribe any other method of computing the term.”

This clearly demonstrates that the erroneous sentence rendered by the district court was in derogation of this act. As such it was a nullity and any illegal sentence may be corrected at any time under Rule 35, Fed.R.Crim.P. Apropos here is Mr. Justice Black’s statement in Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947):

This Court has rejected the “doctrine that a prisoner, whose guilt is established, by a regular verdict, is to escape punishment altogether, because the court committed an error in passing the sentence.” In re Bonner, supra, [151 U.S. 242] at 260, [14 S.Ct. 323, at page 327, 38 L.Ed. 149]. The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner. See King v. United States, 69 App.D.C. 10, 15, 98 F.2d 291, 296. In this case the court “only set aside what it had no authority to do, and substitute [d] directions required by the law to be done upon the conviction of the offender.”

Id. at 166-167, 67 S.Ct. at 649.

Under these circumstances we need not discuss the applicability of Rule 36 and whether the error may be deemed a clerical one.

Judgment affirmed.

      . Lupino’s state sentence for kidnapping was for a period of 2 to 80 years, and was imposed on April 7, 1960. See State v. Lupino, 268 Minn. 344, 129 N.W.2d 294 (1964). He was on parole at the time of the commission of the federal crimes and on September 19, 1972, was returned to the state penitentiary as a parole violator.


text:
    Peter L. CLEARY, Appellant, v. NATIONAL DISTILLERS AND CHEMICAL CORPORATION, a Virginia corporation, and McMinnville Sunshine Dairy Inc., an Oregon corporation, Ap-pellees.
    No. 72-2460.
    United States Court of Appeals, Ninth Circuit.
    Oct. 29, 1974.

      George M. Joseph (argued), of Bemis, Breathouwer & Joseph, Portland, Or., for appellant.
    Cleveland C. Cory (argued), of Davies, Biggs, Strayer, Stoel & Boley, Portland, Or., for appellee National Distillers.
    Harry W. Devlin (argued), Mc-Minnville, Or., for appellee McMinnville Sunshine Dairy.
   OPINION

Before KILKENNY and SNEED, Circuit Judges, and JAMESON, District Judge.

PER CURIAM:

Cleary appeals from a directed verdict in favor of appellees in a treble damage suit under the Sherman Act, 15 U.S.C. § 1 et seq. Appellant alleges that appel-lees, National Distillers and Chemical Corporation (National) and McMinnville Sunshine Dairy, Inc. (Sunshine), combined to restrain trade by preventing him from purchasing from National, a hydrocarbon detection device known in the dairy business as a “snifter.”

The sole issue on appeal is the sufficiency of the evidence supporting appellant’s claim that appellees engaged in a concerted refusal to deal. We find appellant’s evidence, taken as a whole, is insufficient and, therefore, affirm.

In considering a motion for a directed verdict, the court must give the party against whom the motion is made the benefit of all reasonable evidentiary inferences. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 699, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962); Independent Iron Works, Inc. v. United States Steel Corp., 322 F.2d 656, 661 (CA9 1963), cert. denied 375 U.S. 922, 84 S.Ct. 267, 11 L.Ed.2d 165. This is no less true in an antitrust case. However, if there is no substantial evidence to support the claim, the court must direct a verdict. Chisholm Bros. Farm Equip. Co. v. Int’l Harvester Co., 498 F.2d 1137 (CA9 1974). Such a result is dictated by the facts in this case.

Appellant’s proof consisted of: (1) that he contacted National and expressed a desire and a need for a snifter; (2) that he was given the “run arround” by National; (3) that National sold snifters to other dairies, including Sunshine, in appellant’s area; (4) that Sunshine’s snifter was installed on the same day it entered into a lease contract with National; and (5) that after appellant sold his dairy to another party, appellant received an offer from National to lease a snifter. This evidence is wholly inadequate to sustain appellant’s claim.

First of all, appellant presented no evidence that he made a firm demand or offer to buy a snifter. All we have is evidence of preliminary negotiations. A demand and refusal is a prerequisite to a claim of concerted refusal to deal. Royster Drive-In Theatres v. American Broadcast, etc., 268 F.2d 246 (CA2 1959), cert. denied 361 U.S. 885, 80 S.Ct. 156, 4 L.Ed.2d 121 (1959); Wilwaukee Towne Corp. v. Loew’s, Inc., 190 F.2d 561 (CA7 1951); cert. denied 342 U.S. 909, 72 S.Ct. 303, 96 L.Ed. 680 (1952). A plaintiff can have no relief when his failure to obtain a desired product is attributable to his own failure to make a request. Dahl, Inc. v. Roy Cooper, 448 F.2d 17, 19 (CA9 1971).

Furthermore, a claim of concerted refusal to deal obviously cannot stand unless there is evidence of concert. An individual distributor acting alone has the right to deal with whomsoever he pleases. Richetti v. Meister Brau, Inc., 431 F.2d 1211 (CA9 1970), cert. denied 401 U.S. 939, 91 S.Ct. 934, 28 L.Ed.2d 219 (1971). Unless there is evidence of an agreement or other concerted action by appellees, appellant’s claim is baseless. Klor’s, Inc. v. Broadway-Hale Stores, 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959); Dahl, Inc. v. Roy Cooper, supra, 448 F.2d at 19.

The only evidence presented by appellant which might establish an agreement or conspiracy between appellees is hearsay, which was properly rejected by the district court. The proponent of a conspiracy must lay a proper foundation of independent evidence before hearsay evidence can be admitted. Flintkote Co. v. Lysfjord, 246 F.2d 368 (CA9 1957), cert. denied 355 U.S. 835, 78 S.Ct. 54, 2 L.Ed.2d 46. Here, there was no such independent evidence presented. In these circumstances, appellant’s allegations of concerted action must fail.

Our study of the record and the law convinces us that the district court did not err in granting appellees’ motion for a directed verdict.

Judgment affirmed.

       The Honorable William J. Jameson, Senior United States District Judge for the District of Montana, sitting by designation.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ana Roberto MIRANDA, Defendant-Appellant.
    No. 74-2217.
    United States Court of Appeals, Ninth Circuit.
    Oct. 23, 1974.

      Howard G. Trapp, Trapp, Gayle, Teker, Weeks & Friedman, Agana, Guam, for defendant-appellant.
    Duane K. Craske, U. S. Atty., District of Guam, Agana, Guam, for plaintiff-ap-pellee.
    Before MERRILL and HUFSTED-LER, Circuit Judges, and TAYLOR, District Judge.

       Honorable Fred Taylor, District Judge, District of Idaho, sitting by designation.

   OPINION

PER CURIAM:

We reverse Miranda’s conviction for importing heroin and for conspiring to import heroin because the district court erred in admitting prejudicial hearsay testimony over appropriate objection.

Miranda entered Guam by commercial airplane carrying heroin with her personal effects. She was searched, and the heroin was found, when she arrived at the airport. Her motion to suppress was denied, and no error is claimed based upon the search.

As part of the Government’s case-in-chief, the prosecutor asked customs agent Flores what he knew about Miranda before she was searched. Over defense counsel’s hearsay objection, the following colloquy took place:

“A. March 1st, 1973. I was talking with Lieutenant Roberto, the Commander of the Narcotics Section, regarding several people known to be smuggling drugs into Guam. And it was brought up that a person, namely Ana Miranda a/k/a Ana Hemsing, left for Hong Kong. She is about 40 years old. She is expected to return any time. And, furthermore, he mentioned that this person may be bringing drugs into Guam.
“Q. In this case, who was the suspect?
“A. The name appeared on the information that I typed and distributed to the field offices was Ana Miranda, also known as Ana Hemsing.
“Q. What happened next concerning this particular defendant?
“A. The next occasion that I had concerning the information on Ana Miranda, also known as Ana Hemsing, was on May 8th, 1973, I was at the Intelligence Office again and talking to Lieutenant Roberto on regarding drugs.
“Q. And will you stop and tell us who Lieutenant Roberto is?
“A. He is Commander in charge of the Narcotics Section, the Intelligence Unit, Department of Commerce, Government of Guam.
“Q. Proceed.
“A. And he told me at the point on May 8th, 1973, that the person, namely Ana Miranda, also known as Ana Ilemsing, is one of the eight suspects that he had received from a reliable source. He also mentioned that he had a memorandum pertaining to these eight names of suspects. And in this particular memorandum it was mentioned that the eight people are selling heroin and dealing heavy in Guam. One of the names mentioned in this memorandum is Ana Miranda, also known as Ana Hemsing.”

No explanation, other than overzeal-ousness, emerges to excuse the prosecution’s bringing this inadmissible, inflammatory testimony before the jury. The evidence was not conceivably relevant for any nonhearsay purpose. The antecedent motion to suppress left no room for prosecutorial surprise. The admission of this testimony was too devastating to permit us to invoke the harmless error rule.

Reversed and remanded.


text:
    George J. SCHONHOLTZ, Plaintiff-Appellant, v. AMERICAN STOCK EXCHANGE INC. et al., Defendants-Respondents.
    No. 238, Docket 74-1795.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 7, 1974.
    Decided Nov. 25, 1974.
    Sidney B. Silverman, New York City (Silverman & Harnes, New York City, on the brief), for plaintiff-appellant.
    John J. Loflin, New York City (R. Scott Greathead and Lord, Day & Lord, New York City, on the brief), for defendant-respondent American Stock Exchange.
    Elizabeth M. Taylor, New York City (John B. Daniels, Robert P. Mitchell, and Winthrop, Stimson, Putnam & Roberts, New York City, on the brief), for defendants-respondents Ramsey, Re, Farrell, Rochlin & Erdman and Bear, Stearns & Co.
    Before KAUFMAN, Chief Judge, and ANDERSON and MULLIGAN, Circuit Judges.
   PER CURIAM:

Schonholtz brought suit against the American Stock Exchange (ASE) and the firm of Ramsey, Re, Farrell, Rochlin and Erdman [Ramsey], the specialist in Levitz stock on behalf of the class of individuals who purchased Levitz Furniture Corporation common stock on the ASE between October 20, 1969 and August 24, 1971 to cover short sales. He claimed that insiders and institutions owned so large a portion of the 5,573,895 Levitz shares outstanding that the “float” — or public ownership — was “only” 1.3. million shares. This, he asserted, was inadequate in light of existing demand, and gave rise to liability based on ASE Rules 170 and 177, § 6 of the Securities Exchange Act, and rule 10b-5. Judge Lasker dismissed the action under Fed.R.Civ.P. 12(b)(6), and we affirm.

The gist of Sehonholtz’s complaint is that Ramsey and ASE failed in their obligation to insure a market in which float would be adequate, yet the complaint fails to disclose a source for such an obligation. Rule 170 of ASE, on which he relies most heavily, limits the affirmative duty of the specialist to “assist in the maintenance, insofar as reasonably practicable, of a fair and orderly market” to a requirement that he

engage, to a reasonable degree under the existing circumstances, in dealings for his own account . . . when lack of price continuity or lack of depth in the full lot market or temporary disparity between supply and demand . . . exists or is reasonably to be anticipated.

ASE Rule 170(d). It is thus apparent that the rule is concerned with temporary dislocations in trading, rather than a condition of inadequate float which might persist, as Schonholtz alleged, for two years.

Indeed, the very definition of “fair and orderly” which Schonholtz cites in his brief (P. 24), demonstrates the error of his reliance on the rule:

“Fair” and “honest” presumably encompass the notion of freedom from manipulative and deceptive practices of all kinds and may be regarded as positive expressions of the act’s ban on such practices, acts, and devices. “Orderly” presumably implies efficiency and economy of operations, but also embraces concepts of regularity and reliability of operation — “a market which does not ‘fold up’ when the pressure on dealers becomes too heavy” and the concept of avoidance of wide price swings within relatively short spans of time.

Securities and Exchange Commission, Report of Special Study of Securities Markets, H.R. Doc. No. 95, 88th Cong., 1st Sess., pt. 2, ch. V, 14,15 (1963).

Even the most charitable reading of Schonholtz’s allegation that Levitz stock traded at artificially high prices falls short of a charge that the market had “folded up” or otherwise failed to comply with the elements of the above definition. Thus, even if a private right of action otherwise exists for violation of Rule 170, a matter which we need not decide, see Colonial Realty Corp. v. Bache & Co., 358 F.2d 178 (2d Cir.), cert. denied, 385 U.S. 817, 87 S.Ct. 40, 17 L.Ed.2d 56 (1966), no valid claim is asserted here.

Schonholtz’s reliance on ASE Rule 177 is equally misplaced. It is farfetched to assume that the specialist’s duty under Rule 177(a) to report “unusual activity or price change” imposes upon him the obligation to report an inadequate float that allegedly persisted for two years, a matter which is hardly “activity,” surely not a “price change,” and certainly not “unusual.” And it is obvious that the market conditions alleged by Schonholtz are by no means conventionally thought of as “material information,” the subject of Rule 177(b).

Given that the facts alleged show no violation of ASE rules, the claims based on § 6 and rule 10b-5 fail as well. Schonholtz maintains that under § 6, the ASE has the duty to enforce its rules and the securities laws, and is liable to a private party if that duty is violated. Without pausing to discuss the merits of this assertion, see Baird v. Franklin, 141 F.2d 238 (2d Cir.), cert. denied, 323 U. S. 737, 65 S.Ct. 38, 89 L.Ed. 591 (1944), we note that no valid claim based on a failure to enforce rules can exist.when no rules were violated. Similarly, the 10b-5 claim is based on an alleged implied representation by ASE and Ramsey that the float in Levitz stock was adequate. But the complaint does not suggest any possible source for such an implied representation other than the ASE rules and § 6, nor do we perceive any. Thus, at most ASE and Ramsey represented that all relevant statutes and ASE rules were complied with; and it is apparent from what we have already said that none of Schonholtz’s allegations establishes that this representation was false.

Affirmed.

       Bear, Stearns & Co., Ramsey’s parent, was also joined as a defendant because of the claim it was a “controlling person” under § 20 of the Securities Exchange Act, and the complaint was dismissed as to it as well,


text:
    F. X. MESSINA CONSTRUCTION CORP., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and the Secretary of Labor, Complainants, Respondents.
    No. 74-1202.
    United States Court of Appeals, First Circuit.
    Heard Oct. 7, 1974.
    Decided Nov. 5, 1974.
    Robert Hoag Gordon, Boston, Mass., for petitioner.
    Harry R. Silver, Atty., Dept, of Justice, with whom Carla A. Hills, Asst. Atty. Gen., William J. Kilberg, Solicitor of Labor, Benjamin W. Mintz, Associate Solicitor for Occupational Safety and Health, Michael H. Levin, Washington, D. C., counsel for Appellate Litigation, Stephen C. Youhay, Asst. Counsel for Appellate Litigation, Nancy Norman, Atty., and Stephen F. Eilperin, Atty., Dept, of Justice, Washington, D. C., were on brief, for respondents.
    Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
   PER CURIAM.

This is a petition to review a decision of the Occupational Safety and Health Review Commission (OSHRC) that petitioner willfully violated the employment safety provisions of section 5(a) of the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. § 654(a), as defined by regulation promulgated by the Secretary of Labor pursuant to section 6 of the Act, 29 U.S.C. § 655. Petitioner concedes that its failure to shore, sheet, brace, slope, or otherwise support a trench of a depth greater than five feet, which permitted the collapse of the trench and the death of an employee, constituted a “serious” violation of the OSHA, but challenges the conclusion of the OSHRC that such failure was “willful” under section 17(a) of the Act, 29 U.S.C. § 666(a).

The Commission’s conclusion of willfulness was fully warranted. Petitioner was obviously aware of the shoring requirements applicable in cases of trenches exceeding five feet in depth, having been convicted of a previous violation within a year. In the present case its foreman, Wilfred Bisson, himself measured the depth of the trench the afternoon before the accident, recording a distance of á]/2 feet from the ground surface to the top of a transite water main just uncovered. At that point Bisson knew that “we had quite a distance to go to reach the depth that we needed. . . . [W]e would have to clear . . . off [the pipe] and start digging in . . . ” The following morning Bisson began that operation, instructing James DeMenezes to dig around and beneath the water main, which of necessity would result in passing the five foot mark. Yet, knowing this, and that the men were already beginning to dig, he left without giving any instructions as to shoring. The Commission could properly conclude that Bisson did not expect, under these circumstances, that the men would install the shoring the moment five feet was reached, even though, in the past, there had been general instructions. Bisson neither ordered shoring nor returned to the trench until the shouts of his men informed him that DeMenezes had been buried beneath the mud. Such indifference to the requirements of law may alone represent a willful statutory violation see United States v. Illinois Central R. R., 1938, 303 U.S. 239, 243, 58 S.Ct. 533, 82 L.Ed. 773, and is not met by Bis-son’s private determination that in this case it would not be dangerous. The regulation unambiguously forecloses such discretion. In addition, we believe the Commission was justified in taking Bis-son’s testimony to mean that he had consciously decided not to shore the trench at that time because it would have been difficult, although not impossible, to do in the presence of the transite pipe; again, a factor precluded under the regulation.

Petitioner, through its foreman, made its choice, a conscious, intentional, deliberate, voluntary decision, which, regardless of a venial motive, properly is described as willful. Brennan v. Heard, 5 Cir., 1974, 491 F.2d 1, 3; Coleman v. Jiffy Farms, Inc., 5 Cir., 1971, 458 F.2d 1139, 1142, cert. denied, 409 U.S. 948, 93 S.Ct. 292, 34 L.Ed.2d 219; Nabob Oil Co. v. United States, 10 Cir., 1951, 190 F.2d 478, 480.

The order of the Occupational Safety and Health Review Commission is affirmed.

      . The regulation at issue is recorded at 29 C.F.R. 1926.652:
      “Specific Trenching Requirements
      (b) Sides of trenches in instable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. . . .”

      . See section 17(c), (k), 29 U.S.C. § 666(c), (j).

      . (a) “Any employer who willfully or repeatedly violates the requirements of section 654 of this title, any standard, rule, or order promulgated pursuant to section 655 of this title, or regulations prescribed pursuant to this chapter, may be assessed a civil penalty of not more than $10,000 for each violation.”


author: OAKES, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Edward PRAVATO, Appellant.
    No. 150, Docket 74-1760.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 27, 1974.
    Decided Nov. 11, 1974.
    Phylis Skloot Bamberger, New York City (William J. Gallagher, The Legal Aid Society, New York City, of counsel), for appellant.
    Gary A. Woodfield, Asst. U. S. Atty. (David G. Trager, U. S. Atty. for the Eastern District of New York, Paul F. Corcoran, Asst. U. S. Atty., of counsel), for appellee.

      Before LOMBARD, FEINBERG and OAKES, Circuit Judges.
   OAKES, Circuit Judge:

Appellant Pravato appeals from a judgment of conviction in the United States District Court for the Eastern District of New York, Edward R. Neaher, Judge, under the Federal Bank Robbery Act. We affirm the conviction but vacate his sentence under Count One, based on a violation of 18 U.S.C. § 2113(a), leaving standing his sentence of 20 years’ imprisonment under Count Two, based upon a violation of 18 U.S.C. § 2113(d).

The principal claim on appeal is that the consent of a single-family house holder, Mrs. Joan Syracuse, to the search of a room which appellant had occupied for three days as a nonpaying guest did not extend to permit the search óf his open suitcase lying on the bed, from which a scrap of paper bearing the notation “Sal father 561-665-5979” was seized. The telephone number was that of Frank Polisi, the father of Salvatore Polisi, appellant’s codefendant, who, like appellant, was identified at trial by bank employees and in surveillance photographs. It is, by now, clearly established that “Consent to a search by one with access to the area searched, and either common authority over it, a substantial interest in it or permission to exercise that access, express or implied alone validates the search.” United States v. Gradowski, 502 F.2d 563, 564 (2d Cir. 1974). See also United States v. Matlock, 415 U.S. 164, 170-171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); United States v. Jenkins, 496 F.2d 57, 71-72 (2d Cir. 1974). Appellant argues, however, that Mrs. Syracuse’s consent to search her guest room cannot extend to the search of his suitcase over which she had no joint use or rights, even though the suitcase was left open (so that his “expectation of privacy,” if that has any bearing in this context, cannot be said to have been very great). The Government argues on the other hand that the cases upholding consent searches generally have permitted the incidental search of a non-consenting party’s personal property, such as the dresser drawers and diaper bag found in a closet in Matlock, supra; the duffel bag in Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), where, however, there was joint use of the bag by the consenting party, the Court refusing to engage in the “metaphysical subtleties” raised by the appellant’s claim that the joint use was limited to a compartment in the bag, 394 U.S. at 740, 89 S.Ct. 1420; the cardboard boxes in the closet in United States v. Robinson, 479 F.2d 300 (7th Cir. 1973) (2-1 decision); or the zipper bag in the motel room in White v. United States, 444 F.2d 724 (10th Cir. 1971). This intriguing question — whether consent to search a room carries with it, willy-nilly, the right to search all the contents of the room — is not clearly reached on these facts since Pravato’s suitcase was open, even though arguably the scrap of paper was not “in plain view.” We need not reach it on the law for we are satisfied that the admission of the scrap of paper, which only served to demonstrate a nexus between the co-defendants, and not to link either with the bank robbery, was harmless error, at least as to appellant, beyond a reasonable doubt, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), in light of the in-court identifications of him and the surveillance photos showing his robbery participation.

Appellant further contends that the court charged the jury beyond the scope of a jurisdictional stipulation that the Franklin Bank was insured by the F.D.I.C. and had $25,000 taken from it on May 3, 1971, by stating the stipulation as if it included the element of taking by the use of force, violence and intimidation necessary for a robbery conviction. Perhaps because there was ample evidence of force (the use of a handgun by appellant), violence (pointing the gun at employees) and intimidation (e. g., a teller, Mrs. Albert, was told to lie on the floor and testified that she was “in a state of shock” and “scared”), no objection was taken to this erroneous statement in the charge. We do not consider that there was plain error here; counsel, for good reason, was undoubtedly pursuing the trial tactic of not contesting the issue of force and violence, preferring to rely rather on the issue of misidentification based on, in his words, “terror and fright.”

The district court’s concurrent sentences for violations of both subsections (a) and (d) were erroneous and on the authority of Gorman v. United States, 456 F.2d 1258 (2d Cir. 1972) we vacate the sentence on Count One, but affirm the conviction.

Judgment affirmed; sentence on Count One vacated.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Waring MARRIFIELD, John Hobart McEarchern, Roy Wayne Nelson, Sam Lee Presley, Joseph Paul Poulos, Jr., and Albert Lowry Slaughter, Defendants-Appellants.
    No. 73-3464.
    United States Court of Appeals, Fifth Circuit.
    Dec. 3, 1974.
    Thomas M. Haas, Mobile, Ala. (Court-appointed), for Marrifield, McEarchern, Poulos, Slaughter.
    John G. Corlew, Pascagoula, Miss., for Poulos on rehearing.
    Fielding L. Wright, Jr., Pascagoula, Miss., for Marrifield on rehearing.
    Charles White-Spunner, U. S. Atty., Mobile, Ala., for plaintiff-appellee.
   ON PETITION FOR REHEARING

Before GEWIN, GODBOLD and CLARK, Circuit Judges.

PER CURIAM:

It is ordered that the summary calendar opinion in this cause, issued July 12, 1974, 496 F.2d 1278, be and the same is hereby vacated, and this cause shall be removed from the summary calendar.