author: HEANEY, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Roy Harding GALLINGTON and Wilbur Eugene Streeter, Appellants.
    No. 73-1351.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 17, 1973.
    Decided Dec. 12, 1973.
    Certiorari Denied April 1, 1974.
    See 94 S.Ct. 1613.

      M. J. Galvin, Jr., and Douglas L. Skor, St. Paul, Minn., for appellants.
    Earl Gray, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before HEANEY, ROSS and STEPHENSON, Circuit Judges.
   HEANEY, Circuit Judge.

This is a direct appeal from the defendants’ convictions for kidnapping in violation of 18 U.S.C. § 1201(a) and the denial of their motion for a new trial.

On January 9, 1973, Wilbur Streeter contacted James Goergen, an Austin, Minnesota, antique gun dealer, at his home and represented that he was the agent of a man in Potsdam, Minnesota, who desired to sell his gun collection for $12,000. Streeter met Goergen the next morning and informed Goergen that the sale must be for cash. He introduced Goergen to Roy Gallington, who was represented as being the son-in-law of the seller. Goergen obtained $12,000 in cash from his bank. Thereafter, the defendants and Goergen drove in Goer-gen’s camper truck to a point near Potsdam where the defendants pulled their pistols and robbed Goergen of the $12,000. They then directed him to drive the camper to various points within Minnesota and, ultimately, to LaCrosse, Wisconsin.

While driving in LaCrosse, Goergen observed that a police vehicle was following the camper. He slowed the camper and leaped from it onto the road. Officer Tolvstad, a policeman following the camper, believed it was out of control and moved to stop it with his patrol ear. While in this act, he heard a “thud” and saw a shiny object in the hand of one of the camper’s occupants. The defendants turned off the road and abandoned the camper at a truck stop. The police followed footprints in the snow to a mobile home park where they learned that a stranger had forced a resident, John Farrell, to drive him in Farrell’s automobile. Streeter and Farrell were later apprehended near LaCrosse. A pistol was found in the front seat of Farrell’s car. Gallington was arrested elsewhere by another police officer. He was searched and relieved of a pistol and an envelope containing $12,000 in cash. A bullet removed from the rear of Officer Tolvstad’s patrol car was identified as having been fired from the pistol taken from Gallington.

During March, 1973, defendants and their counsel reached an agreement with the United States Attorney whereby the defendants would plead guilty and the United States Attorney would recommend a sentence of ten years for each defendant with the understanding that the guilty pleas could be withdrawn if the court rejected the plea bargain. On March 12, 1973, a hearing was held before Chief Judge Devitt. The terms of the plea bargain were stated, and the defendants were advised of their rights in full compliance with the Federal Rules of Criminal Procedure and case law.

Judge Devitt closely questioned the defendants to assure that there was a factual basis for all elements of the offense charged. He carefully elicited from the defendants the admission that they had pulled their guns and robbed Goergen prior to entering Wisconsin to establish the interstate nature of the offense. He then accepted the pleas, conditioned upon a subsequent examination of presentence reports.

Judge Devitt later examined the reports and rejected the plea bargain on the ground that the ten-year sentences were inadequate. The defendants were allowed to withdraw their guilty pleas and enter pleas of not guilty. A joint jury trial was then held before Judge Devitt. No objection to his presiding was raised. Both defendants were found guilty, and each was sentenced to a twenty-five-year prison term. The defendants filed a joint motion for a new trial, contending for the first time that they were denied due process because Judge Devitt tried the case. The motion was denied, and this appeal resulted.

The defendants contend on appeal that the trial court erred by: (1) presiding over the trial after rejecting their pleas of guilty; (2) improperly admitting evidence concerning the commission of other crimes; and (3) imposing excessive sentences and relying on improper factors in determining these sentences. They seek a new trial or, alternatively, reduction of their sentences.

We are asked to adopt a per se rule that a judge who conditionally accepts a guilty plea and later rejects it, is disqualified from subsequently trying the case. No claim that Judge Devitt acted prejudicially is made. Rather, the argument is that a defendant is always denied due process if he is tried before a judge who has questioned him as to the factual basis for his guilty plea, conditionally accepted the plea bargain and then rejected it after having read the presentence investigation report.

The defendants argue that a judge who conditionally accepts a guilty plea must limit his examination of a defendant to a determination as to whether the plea is being made intelligently and voluntarily with a full awareness of the rights waived and the consequences of the plea. They contend that the judge must delay questioning a defendant as to the factual basis for his plea until after the judge has read the presentence investigation report and has agreed to accept the plea bargain. Finally, they contend that a judge who rejects a plea bargain, either after reading the presen-tence investigation report or after interrogating the defendant as to the factual basis for the plea, must disqualify himself from further consideration of the case.

We cannot agree with these contentions. It is proper for a judge to satisfy himself that there is a factual basis for a plea of guilty before accepting a plea. This is the case, even though the judge conditions the acceptance of the plea on his being satisfied that the presentence report supports the bargained-for plea. Cf., American Law Institute, Model Code of Pre-Arraignment Procedure § 350.3(5) (T.D. No. 5, 1972) [hereinafter referred to as ALI Model Code]; American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 3.3(b) (Approved Draft, 1968). After rejecting a plea under these circumstances, a judge may excuse himself from further involvement in the case and should give serious consideration to doing so. See, ALI Model Code, supra at 112-113; President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 136 (1967); President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 13 (1967). See also, Brown v. Peyton, 435 F.2d 1352, 1359 (4th Cir. 1970) (Winter, J., dissenting). But ultimately, absent a showing of actual prejudice, the choice lies within the discretion of the trial judge, and we find no abuse of discretion here.

Plea bargaining is susceptible to abuse. Its proper use, however, has been tacitly approved by the Supreme Court, this Court and many study commissions that have reviewed the problem. While a recent report has recommended that plea bargaining be abolished by 1978, we are not prepared to adopt that recommendation.

We caution, however, that if plea bargaining is to be practiced, the requirements of Rule 11, as explicated by the Supreme Court in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), must be followed. Furthermore, the following safeguards must also be implemented: (1) Prosecutors must avoid mischarging, overcharging and threats of heavier sentences for those who do not plead guilty. (2) Judges are to require the agreement to be disclosed in open court at the time the plea is offered and require that the reasons for reaching the agreement be set forth in detail. (3) Judges are not to participate in the bargaining; their role is to be limited to acceptance or rejection of agreements after a thorough review of all relevant factors. They must independently satisfy themselves that acceptance of the agreement adequately protects the rights of the defendant and the interests of justice, and they must set forth their reasons for accepting or rejecting the plea. (4) Defendants must be given an opportunity to withdraw the plea if the bargain is rejected by the judge. In such event, evidence of the plea is not admissible in any civil or criminal proceeding against the person who made the plea or the offer.

We find no merit to defendants’ contention that the trial court erred in admitting testimony as to the offenses which took place after the kidnapping victim, Goergen, escaped from his captors. Specifically, they charge that it was error to admit testimony that a shot was fired at Officer Tolvstad’s patrol car and that it was fired from the pistol found on Gallington’s person at the time of his arrest. Similarly, they object to the admission of the testimony of Farrell that he was kidnapped by Streeter after the latter left the camper and sought to make his escape. The testimony, in our view, was admissible because the acts testified to were integral parts of the offense for which the defendants were charged. See, United States v. Cochran, 475 F.2d 1080, 1082-1083 (8th Cir. 1973). The testimony also served to show the identity of the defendants. See, Drews v. State of Minnesota, 407 F.2d 1307, 1308-1309 (8th Cir. 1969); Abernathy v. United States, 402 F.2d 582, 584 (8th Cir. 1968).

Finally, the defendants ask for a reduction of their sentences, either by this Court or on remand. The sentences imposed are well under the maximum permitted for violations of 18 U.S.C. § 1201, and it appears from the record that this request has not been previously made in the trial court. Accordingly, the contention will not be considered by this Court. See, Glouser v. Van Alstine, 313 F.2d 199, 200 (8th Cir.), cert. denied, 374 U.S. 857, 83 S.Ct. 1902, 10 L. Ed.2d 1077 (1963); 2 C. Wright, Federal Practice and Procedure § 588 at 575-576 (1969).

The Court wishes to express appreciation to the defendants’ appointed counsel for their excellent briefs and argument.

Affirmed.

      . Rules referred to herein are the Federal Rules of Criminal Procedure sales otherwise indicated.

      . The defendants do not argue that Judge Devitt violated Rule 32 by trying the ease after having examined the presentence investigation reports. See, Gregg v. United States, 394 U.S. 489, 89 S.Ct. 1134, 22 L. Ed.2d 442 (1969). He had accepted the guilty pleas, albeit, conditionally and it was permissible under Rule 32(c)(1) for him to have examined the presentence reports before the trial. Cf., Webster v. United States, 330 F.Supp. 1080 (E.D.Va.1971). A proposed amendment to Rule 32 specifically provides that a judge may examine the presentenee report prior to accepting a plea, and the Advisory Committee Note to that amendment states that it is within the discretion of the trial judge to determine whether to recuse himself from presiding over the trial of a case where he has examined the presentence report and then rejected a i>lea bargain. Proposed Amendments to the Federal Rules of Criminal Procedure (Approved by the Judicial Conference, October 27, 1972).

      . See, e. g., Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

      . See, Meyer v. United States, 424 F.2d 1181, 1188, 1198-1199 (8th Cir.), cert. denied, 400 U.S. 853, 91 S.Ct. 92, 27 L.Ed.2d 91 (1970) ; Ford v. United States, 418 F.2d 855, 858 (8th Cir. 1969).

      . American Law Institute, Model Code of Pre-Arraignment Procedures, Art. 350 (T.D. No. 5, 1972) [hereinafter referred to as ALI Model Code] ; American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty, Part III (Approved Draft, 1968) [hereinafter referred to as ABA Standards] ; President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 134-136 (1967) ; President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 9-13 (1967). See also, Proposed Rule 11(e), Proposed Amendments to Federal Rules of Criminal Procedure (Approved by the Judicial Conference, October 27, 1972).

      . National Advisory Commission on Criminal Justice Standards and Goals, Courts, Standard 3.1 (1973) [hereinafter referred to as National Advisory Commission Report].

      . National Advisory Commission Report, supra at Standard 3.6; ALI Model Code, supra at § 350.3(3).

      . National Advisory Commission Report, supra at Standard 3.2 and 3.7; ALI Model Code, supra at § 350.5(1). Proposed Rule 11(e)(2), supra.

      . ALI Model Code, supra at § 350.3(5).

      . National Advisory Commission Report, supra at Standard 3.7; ALI Model Code, supra at §§ 350.3(1) and 350.5(2) ; ABA Standards, supra at § 3.3(a) ; Proposed Rule 11(e)(1), supra. Contra, Note, Restructuring the Plea Bargain, 82 Yale L.Rev. 286 (1972).

      . ALI Model Code, supra at §§ 350.5(4) and 350.6; ABA Standards, supra at § 3.-3(b) ; Proposed Rule 11(e) (4), supra.

      . ALI Model Code, supra at § 350.7; ABA Standards, supra at § 3.4; Proposed Rule 11(e) (6), supra.


source: Caselaw Access Project

author: BROWN, Chief Judge:

license: Public Domain

text:
    INTERNATIONAL LADIES’ GARMENT WORKERS’ UNION, AFL-CIO, Plaintiff-Appellee, v. ASHLAND INDUSTRIES, INC., et al., Etc., Defendants, Norman J. Alfin, Defendant-Appellant.
    No. 73-2017
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 21, 1974.

      Saram Amerling, New York City, Louis H. Bayer, Birmingham, Ala., for defendant-appellant.
    George C. Longshore, Birmingham, Ala., Max Zimny, New York City, for plaintiff-appellee.
    Before BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   BROWN, Chief Judge:

The question presented is whether the District Court erred in setting aside the award of the arbitrator upon the ground that the arbitrator exceeded his authority contained in the collective bargaining agreement in his holding that the underlying collective bargaining agreement was induced by fraud. While we conclude that the arbitrator invaded the province of the Court and thus no error was committed in setting aside its opinion and award, we have to recognize that this unfortunate result was brought about by the initial failure of the District Court to perceive its responsibility for determining the validity of the underlying contract and thus the arbitra-bility of the issues ultimately decided by the arbitrator. But as usual, the fault must lie at the feet of counsel who should have anticipated the problem. We affirm the setting aside of the arbitrator’s award but reverse and remand for further proceedings.

The facts may be stated briefly. The Union executed a collective bargaining agreement on May 1, 1969 with Employer. The contract was signed by Norman J. Alfin, as president of the Employer and also individually. Employer encountered financial problems and ceased operations in October of 1969. The Union filed a § 301 suit against Employer and against president Alfin seeking to recover certain sums owing under the agreement.

A default judgment was taken against the Employer on April 6, 1971. In his answer to the § 301 complaint, president Alfin individually set up as a defense Article XXIX of the collective bargaining agreement which stated that the grievance and arbitration procedure shall be the exclusive means for resolution of disputes arising out of a breach of the collective bargaining agreement. The Union then filed a motion for summary judgment or in the alternative for an order compelling arbitration. On April 11, 1972 the District Court stayed the case pending arbitration. It warrants emphasis that in no way up to this point did Alfin challenge the validity of the underlying collective bargaining agreement.

In the arbitration proceeding, president Alfin advanced the contention that he had been unlawfully induced to make the contract by an agent for the Union. The alleged inducement was said to have consisted of a promise by a Union official that the Employer would become a “registered shop” for, and receive business from, the Villager (a large dress manufacturer) if Alfin signed the contract. President Alfin contended that, having signed the contract individually in reliance on these representations, Employer was never registered as promised and accordingly the Villager began curtailing its work sent to Employer culminating in a final cessation which was ultimately responsible for Ashland going out of business. The written collective bargaining agreement itself contained no references to any such promises by the Union.

The arbitrator found fraud in the inducement of president Alfin’s personal liability under the collective bargaining agreement and concluded that the contract was not enforceable against him. Thus the merits of the grievance (see note 3, supra) as such were not reached by the arbitrator. Thereafter, the Union filed a motion in the District Court to set aside the award on the grounds that the arbitrator had exceeded his authority. The Court granted the motion on February 26, 1973.

In concluding that the trial court did not err in setting aside the award of the arbitrator we are not unmindful of, nor do we succumb to “the temptation of passing on the intrinsic merits of the controversy under the guise of determining whether the dispute is within the promise to arbitrate.” Taft Broadcasting Co. v. Radio Broadcast Technicians Local Union No. 253, 5 Cir., 1962, 298 F.2d 707, 709. The trilogy opinions forewarned courts against making such an invasion of the arbitrational tribunal. In the same air of detached supervision, when parties have agreed to submit questions of contract interpretation to an arbitrator, courts are limited in their roles to ascertaining whether the claims to be arbitrated are governed by the contract. United’ Steelworkers of America v. American Manufacturing Co., supra, 363 U.S. at 567-568, 80 S.Ct. 1343.

Notwithstanding these compelling policy considerations, arbitration is a matter of contract and it follows that the arbitrability of issues is a matter to be determined by the Court on the basis of the contract entered into by the parties. Atkinson v. Sinclair Refining Co., 1962, 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462; John Wiley & Sons v. Livingston, 1964, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898. Courts must review the merits of an arbitration to insure that the arbitrator has confined his decision to interpretation and application of the collective bargaining agreement. Safeway Stores v. American Bakery and Confectionery Workers, 5 Cir., 1968, 390 F.2d 79, 81-82. Thus basic to the orderly effectuation of a national policy designed to minimize industrial strife is the proposition that a party may be required to submit to arbitration only disputes which he has previously agreed to so submit. United Steelworkers of America v. Warrior and Gulf Navigation Co., supra, 363 U.S. at 574, 80 S.Ct. 1347.

Usually the problem turns on whether a particular dispute is within the arbitration agreement as the subject for arbitration. Other times it may go to the sort of remedy which the arbitrator can prescribe to effectuate a decision on a matter admittedly within the scope of arbitrability.

But that is not what happened here. Alfin first set up as a defense to the Union’s § 301 suit the arbitration clause as an exclusive means for resolution of disputes. No one questioned then or now that the disputes (see note 3, supra) were within the grievance clause. The order of stay and reference to an arbitrator was eminently correct. But after being successful in attaining a stay in the District Court pending arbitration, he assumed the inconsistent position of attacking the validity of the very contract which included the arbitration clause which he successfully invoked.

It is our view that Alfin’s attack upon the validity of the underlying contract goes to the heart of whether there is emi/thing to arbitrate — not just what there is to arbitrate — and thus poses a legal question for the Court rather than the arbitrator. The arbitrator who derives his power solely from the contract cannot hold that charter to be legally ineffective. United Steelworkers of America v. Enterprise Wheel & Car Corp., supra, 363 U.S. at 597, 80 S.Ct. 1358; Safeway Stores v. American Bakery and Confectionery Workers, supra, 390 F.2d at 81; Local Union No. 787, International Union of Electrical Radio and Machine Workers v. Collins Radio Co., 5 Cir., 1963, 317 F.2d 214, 216. The parties have found no federal decision contrary to our conclusion. And the only one put forward by Alfin is In The Matter of the Arbitration between Weinrott v. Carp, 32 N.Y.2d 190, 344 N. Y.S.2d 848, 298 N.E.2d 42 (filed April 26, 1973), which we decline to follow.

Thus, the time and place for determination of the validity of the underlying collective bargaining agreement was the § 301 suit first filed by the Union. Though Alfin failed at this time to raise in his pleadings his later contentions concerning the validity of the contract, arguably F.R.Civ.P. 54(c) entitles him to such a determination even if relief was not demanded in his pleadings. Because it is unclear from the record whether the District Court impliedly found the underlying contract to have been lawfully induced, we must remand to the lower Court for its consideration of this issue. If the District Court finds that the collective bargaining agreement (to which Alfin was a party) was valid, it may then proceed to order the particular grievances arbitrated. In the light of the history of this case any such order of supplemental reference to a new arbitrator should be sufficiently specific. If, on the other hand, it finds in the negative, arbitration may not be ordered absent prior contractual agreement.

We affirm the judgment of the District Court insofar as it set aside the award of the arbitrator but remand the case for action not inconsistent with this opinion.

Affirmed and remanded.

      . International Ladies’ Garment Workers’ Union, AFL-CIO.

      . Ashland Industries, Inc.

      . This is the subject matter of the “grievance” submitted to, but never decided by, the arbitrator.

      . United Steelworkers of America v. American Manufacturing Co., 1960, 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; United Steelworkers of America v. Warrior & Gulf Navigation Co., 1960, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; United Steelworkers of America v. Enterprise Wheel & Car Corp., 1960, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d. 1424.

      . Although not crystal clear, the action of the District Court in conjunction with or following the order setting aside the award is sufficiently dispositive to give requisite finality to the orders permitting appeal, at least in the Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, sense.


author: GEWIN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Eugene PETERSON and Donald M. Peterson, Defendants-Appellants.
    No. 73-1748.
    United States Courts of Appeals, Fifth Circuit.
    Jan. 18, 1974.
    Rehearing Denied Feb. 19 and March 29, 1974.

      Phil Burleson, James L. Mitchell, Dallas, Tex., Glynn A. Pugh, Guanajuato, Gto., Mexico, for defendants-appellants.
    Frank D. McCown, U. S. Atty., Fort Worth, Tex., Charles D. Cabaniss, Charles R. Parrett, Asst. U. S. Attys., Dallas, Tex., for plaintiff-appellee.
    Before BROWN, Chief Judge, and GEWIN and GOLDBERG, Circuit Judges.
   GEWIN, Circuit Judge:

This appeal is taken from a judgment of conviction entered against Dr. Donald Peterson for conspiring to defraud an agency of the United States Government, in violation of 18 U.S.C. § 371 (1970). His brother and alleged co-conspirator, James E. Peterson, also before us on appeal, was convicted under the conspiracy charge and on a number of counts under 18 U.S.C. § 1001 (1970) alleging the substantive offenses of unlawfully and knowingly making false statements of material facts to a government agency. They were tried jointly before a jury which found them guilty. The prevarication is designated as the allegedly false certification that physical therapy rendered to patients at an extended care facility was provided by Dr. Peterson or under his personal auspices. Both appellants claim that numerous evidentiary errors were committed below and challenge the sufficiency of the evidence to support the jury’s verdict. Finding these contentions to be of only limited efficacy, we reverse the conspiracy convictions but affirm James E. Peterson’s conviction of the substantive offenses.

I

Before addressing the issues raised on appeal, it is instructive to consider the complicated statutory and factual background which gave rise to the instant prosecutions. James E. Peterson is the owner of Concord Manor, a nursing home approved by the Social Security Administration as an extended care facility and hence qualified to receive payment for hospital benefits rendered to the aged under Title XVIII, Health Insurance for the Aged of the Social Security Act, popularly denominated the Medicare Act. The Act prescribes a bifurcated scheme of remuneration to those extending aid to the elderly. Under Part A, an extended care facility making outlays for room and board and nursing services may be compensated on a per diem rate determined by agreement with its fiscal intermediary, here Mutual of Omaha. Under Part B, doctors rendering physical therapy are remunerated directly by a second fiscal intermediary, here the Group Medical and Surgical Service (Blue Cross-Blue Shield). Prior to July 1, 1968, Part B claims were required to be filed by a physician on government Form SSA-1490D(2), and could not be filed by a nursing home or medical organization comprised of physical therapists. The 1968 amendment, however, altered this filing and compensation procedure by enabling a group of therapists, who form an organization to provide physical therapy and enter into agreements with extended care facilities to render the therapy prescribed by a patient’s doctor, to bill directly for their services. It was this amendment which spurred the organization of Zodiac, Inc. by James Peterson and the fraternal interplay between James and Dr. Peterson. At his brother’s behest Dr. Peterson enlisted as medical advisor to Zodiac, responsible for drafting procedures which would enable it to qualify as a “provider of services.” Upon such qualification, Zodiac would be entitled, under the new amendment, to bill directly for costs incurred in administering physical therapy to Medicare patients.

We turn now to the occurrences which gave rise to the institution of criminal procee'dings against the two defendants. During the first six months of 1968, Zodiac furnished physical therapy to pa>-tients at Concord Manor. This therapy was administered by a registered physical therapist and two therapy aides. Dr. Peterson’s involvement was purportedly confined to drafting procedures for submission to the Social Security agency, pursuant to the new amendment. Nevertheless, in 1969, Group Medical and Surgical Service received requests under his name for payment of medical insurance benefits for Zodiac patients receiving physical therapy from January to June 1968. These requests were submitted on Form SSA-1490D(2), alluded to above, which in box # 14, required that the administering doctor, here Dr. Peterson, certify that he either supplied the services or had them provided under his personal direction. The forms received contained Dr. Peterson’s signature, subsequently learned to have been forged, his personal supplier number, and a post office box address substituted for Dr. Peterson’s registered address. The change of address was intended to divert the checks from Dr. Peterson’s address to that of Zodiac. This was an abortive effort because Dr. Peterson’s supplier number and address were unique to him and payment would be sent to Dr. Peterson automatically notwithstanding the change of address. Ignorant of the forgery and disregarding, as required, the substituted address, Group Medical and Surgical Service remitted claims payments to Dr. Peterson, who after depositing them in his Dallas Clinic Account, upon the same day he received them, drew a new check for the same amount payable to the order of Zodiac. Both convictions stem from the conduct engaged in with respect to the filing of the claims.

II

The fraternal bond, welded by the joint employment of Dr.. James Peterson in the Zodiac endeavors, appears to have been dissipated by the advancement of divergent theories for upsetting their convictions. The only semblance of unity retained throughout this appeal is that both claim that the prosecutors and the jury made “much ado about nothing.” The premise underlying James Peterson’s claim is that his brother was sufficiently involved in the operations of Zodiac affairs to dispel any inference that he, James Peterson, perpetrated a fraud in filing the claims. Conversely, the premise underlying Dr. Peterson’s claim is that the evidence of his involvement in Zodiac affairs and the filing of claims is so meagre that he could not be found to have participated in the conspiracy. We consider their precise contentions advanced seriatim.

James Peterson raises four contentions on appeal, each of which is devoid of merit. The first is that the lower court erred in excluding certain documents relating to Zodiac’s qualification as a provider of services and two prior indictments which were dismissed. Second, the government’s suppression of a letter from HEW addressed to Zodiac warranted reversal under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). And third, the lower court erred in failing to give requested charges and instructions which would have clarified the meaning of the phrase “under his personal direction.” Each of these contentions fails, the first because under F.R.Cr.Proc. 26, it was within the district court’s discretion to exclude the proffered evidence and such discretion was not abused in the instant case, see United States v. Twilligear, 460 F.2d 79, 81 (10th Cir. 1972); United States v. Skillman, 442 F.2d 542, 551 (8th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971), the second, because James Peterson’s characterization of the government’s action with respect to the HEW letter as suppression is illusory, and the third, because the trial judge’s instructions encompassed the substance of what James Peterson desired to have the court propound to the jury. A more formidable impediment to the efficacy of these evi-dentiary arguments is that the excluded evidence would be germane only if the theory upon which his defense is predicated were viable. This theory is that the meaning of the terminology “under his personal direction” contained in box 14 of Form SSA-1490D(2) was ambiguous and hence any misrepresentation in filing the claims for payment was attributable to inadvertence and not to willfulness. The excluded evidence arguably gave credence to the view that some ambiguity prevailed. However, whatever force his theory has derives largely from its generality, for the overwhelming evidence established that Dr. Peterson did not in fact supervise the administering of physical therapy to any particular Zodiac patients. The inefficacy of his theory invariably condemns James Peterson’s fourth challenge, raised below through a motion for judgment of acquittal, and pressed here that the evidence was insufficient to support the jury’s finding that he had made willful misrepresentations on the claim forms filed with Group Medical and Surgical Service. Evidence of Dr. Peterson’s non-involvement in administering physical therapy clearly supports the jury’s finding in this regard. Thus, James Peterson’s conviction on the substantive counts must stand.

Dr. Peterson objects on appeal to two evidentiary rulings and the sufficiency of the evidence to support the jury’s finding that he participated in a conspiracy to defraud the government. He had raised this sufficiency objection in the district court by means of a motion for judgment of acquittal when the government rested its ease, again when James Peterson rested his defense and reiterated it when all parties had closed their testimony by way of an objection to the submission of the case under the district court’s charge. We confine our resolution to the sufficiency grounds.

Under established judicial precedent, a jury verdict must be sustained if there is substantial evidence when viewed in a light most propitious to the government, to support it. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Hernandez, 484 F.2d 86, 87 (5th Cir. 1973); United States v. Arroyave, 477 F.2d 157, 163 (5th Cir. 1973); Lacaze v. United States, 391 F.2d 516, 519 (5th Cir. 1968). This rule, while dictating that deference be extended to jury findings, does not immunize them from attack. An examination of the evidence convinces us that Dr. Peterson’s challenge is well-founded.

In reviewing the evidence marshalled by the government in support of the conspiracy charge, it is critical to note that conduct of Dr. Peterson subsequent to the time that claims were filed with Group Medical and Surgical Service is germane only to the extent that such conduct supports the inference that he had planned with James Peterson to file the claims containing the misrepresentation. Since the conspiracy had run its course eo instante upon the filing of these claims, Dr. Peterson’s conduct upon receipt of checks in payment of claims could not constitute an overt act in its furtherance. See Bollenbach v. United States, 326 U.S. 607, 611, 66 S. Ct. 402, 404, 90 L.Ed. 350, 353 (1946).

The record is devoid of evidence, prior to Dr. Peterson’s receipt of claims checks from Group Medical, which supports the conclusion that he had engaged in the alleged conspiracy. Dr. Peterson steadfastly adhered to the position that he never directed the administering of physical therapy to Medicare patients and that he was ignorant of the forgery of his signature on Form SSA-1490D(2). His testimony was corroborated by Helen Maeker, the registered physical therapist, and Lucille Morton, the secretary who at James Peterson’s behest, forged Dr. Peterson’s signature and attempted to substitute a post office box number for Dr. Peterson’s registered address listed on the claims form. Moreover, it is uneontroverted that Dr. Peterson expressly disavowed any intention to bill for services performed by Zodiac during his abbreviated affiliation and that he severed relations with Zodiac after July 1, 1968, a substantial period of time before March 1, 1969, the date the alleged conspiracy transpired. Finally, there is no evidence that he saw, much less conversed with James Peterson after his disaffiliation, other than upon the day the claims checks were remitted to him. Hence, the jury verdict can only be sustained if Dr. Peterson’s conduct upon receiving the checks supports the inference that he had preordained the false filing engineered by James Peterson.

The evidence adduced by the government at trial established that upon receipt of payment checks from Group Medical totaling $18,000, Dr. Peterson reported their arrival to his brother, deposited them in his clinic account, personally wrote a new check designated accounts payable to Zodiac for the entire amount and delivered it to Zodiac on the very same day. Dr. Peterson admitted that he took this action without making any attempt to contact Group Medical and Surgical Service about the checks and despite the fact that he knew the claims did not involve any of his own patients and that he had not authorized submission of the claims in his own name. The government also attributed significance to testimony elicited on cross-examination of Dr. Peterson which in allegedly impugning his credibility, reflected upon the mendacity of his assertions of noninvolvement in the claims filed.

The countervailing evidence and that which compels the conclusion that the jury’s inference of conspiracy must be set aside revolves around the actions of the alleged confederate, James Peterson. His conduct, in forging his brother’s signature, in supplying his supplier number, and in altering his registered address on the claims filed with Group Medical reflects a protracted effort to divert the checks from Dr. Peterson. Such an effort would appear to be inexplicable if Dr. Peterson were involved in the scheme. In short, Dr. Peterson’s conduct appears to be more Pickwickian than conspiratorial.

Moreover, we cannot overlook the fact that Dr. Peterson was exonerated of the charges contained in the 39 substantive counts of the indictment. Concededly, a conspiracy to commit a crime is a separate and distinct crime from the substantive offense. See Callanan v. United States, 364 U.S. 587, 593, 81 S.Ct. 321, 325, 5 L.Ed.2d 312, 317 rehearing denied, 365 U.S. 825, 81 S.Ct. 687, 5 L.Ed. 2d 703 (1961); United States v. Jasso, 442 F.2d 1054, 1056 (5th Cir.), cert. denied, 404 U.S. 845, 92 S.Ct. 146, 30 L. Ed.2d 81 (1971); Downing v. United States, 348 F.2d 594, 600 (5th Cir.), cert. denied, 382 U.S. 901, 86 S.Ct. 235, 15 L.Ed.2d 155 (1965). But this distinction may become tenuous where, after receiving an “aiding or abetting” charge, a jury exonerates a defendant on the substantive count the elements of which closely approximate, if not parallel, the overt acts alleged in the conspiracy charge. We do not mean to suggest that were additional evidence of conspiracy adduced at trial a jury verdict of guilty on the conspiracy count alone would invariably require reversal. Rather, based on the unique facts presented in the record, it is difficult to conceive of how the jury could exculpate Dr. Peterson as an aider or abettor but yet inculpate him as a confederate.

Ill

For the aforementioned reasons, we hold that the jury lacked sufficient evidence to find Dr. Peterson guilty of conspiracy to defraud an agency of the United States Government. Concomitantly, since this absolution removes James Peterson’s confederate, his conviction on the conspiracy charge must also be reversed. Since neither appellant joined a motion for a new trial with their motions for judgment of acquittal, the appropriate disposition is to reverse and remand with directions that the indictments be dismissed as to the conspiracy counts. See United States v. Apollo, 476 F.2d 156, 158 n. 1 (5th Cir. 1973); United States v. Musquiz, 445 F.2d 963, 966 (5th Cir. 1971); 2 Wright, Federal Practice & Procedure § 470 (Supp.1973). Since we discern no infirmity in James Peterson’s conviction on the substantive counts, we affirm as to that part of the judgment of conviction.

Affirmed in part; reversed and remanded with instructions to dismiss the conspiracy count of the indictment.

      . 18 U.S.C. § 371 (1970) :
      “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.
      “If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.”

      . 18 U.S.C. § 1001 (1970):
      Whoever, in any, matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or documents knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
      The meaning of this statute is at issue in United States v. Lambert, 470 F.2d 354 (5th Cir. 1972), rehearing en banc granted April 17, 1973.

      . 42 U.S.O. § 1395 et seq. (1970).

      . Each provider of services under the Act has a fiscal intermediary who is responsible for insuring the integrity of the program and paying the bills for services rendered by the provider to Medicare beneficiaries.

      . The only way in which Concord Manor could recoup the expenses incurred would be under the Part A cost per diem agreed to by Concord and its fiscal intermediary. During the period in which the alleged felonious .conduct took place, Concord’s per diem rate was $12. The Government claims the filing scheme devised herein was fashioned in order to circumvent the limitations on returns for services rendered under Part A. Under Part B, the claimant could obtain full remuneration for physical therapy. Thus, the remittance by Dr. Peterson of claims for payments enabled Concord Manor to procure greater compensation. Dr. Peterson professed ignorance of the differences in filing under Parts A & B.

      . The full text of box 14 contained on tbe claim filed with group Medical and Surgical Service is as follows:
      “Signature of physician or supplier (a physician’s signature certified that physician’s services were personally rendered by him or under his personal direction.”

      . The excluded evidence tended to show that confusion existed as to whether a physician had to be physically present for physical therapy to be administered under his personal supervision or whether it sufficed if he gave written instructions concerning the proper therapy to be given a particular patient. The dubious inferences drawn by James Peterson from the excluded indictments and the purportedly suppressed HEW letter were claimed to buttress his view concerning the ambiguity in standards.

      . Dr. Peterson objected to the exclusion of evidence that prior to indictment he had initiated a civil suit against HEW to recover Medicare payments withheld from him. He claimed that the instant indictment was procured in retaliation to the civil suit. He also claimed that evidence that Concord’s fiscal intermediary suspended payments because of Concord’s failure to file annual cost reports as required under Part A was irrelevant as to him and that its admission “probably” influenced the jury in its consideration of his guilt under the conspiracy count.

      . An examination of the indictment, the evidence and the position taken by the government at trial and on appeal clearly demonstrates that the essential basis of the charges was not that the appellants defrauded the Government out of money but rather that they made false statements to a government agency which impeded the functioning of that agency. Representative of the Government’s 'position is the opening statement of its attorney at trial:
      “Now count 40 is a conspiracy count. What the Government would show, as far as conspiracy is concerned, is not that they were out to defraud the Government. We are not claiming that there was, it was conspiracy to defraud the Government but not for money.”

      . The grand jury charges alleged that nine overt acts were committed in furtherance of the conspiracy. The first overt act was James Peterson’s application for a post office box in the name of Concord Manor, the next 5 pertained to Dr. Peterson’s alleged action in causing the Form SSA-1490D(2) to be mailed, and the last 3 consisted of the sequence of events transpiring subsequent to Dr. Peterson’s receipt of the claims.

      . As previously indicated in the body of this opinion, under the Part B program computerized by Group Medical and Surgical Service, each provider of services is furnished with a provider number, unique to the supplier of services, which is used on all requests for payment. The supplier also registers an address with the fiscal intermediary to which all claims payments are remitted. The registered address and supplier number serve as controls against disruption of the proper administration of payments made by the fiscal intermediary.

      . Dr. Peterson explained the accounts payable designation on the check as purely a bookkeeping notation which would indicate receipts and disbursement of funds of equal amounts resulting in no gain to him. Dr. Peterson’s treatment of the payment to Zodiac as a business deduction on his tax form was approved by the IRS.

      . The source for the impeaching testimony was a deposition given by Dr. Peterson in the civil suit he filed against HEW and a letter to a program integrity specialist of HEW. In the deposition Dr. Peterson responded that he was “acquainted” with Zodiac Enterprises but “did not know” what it was. In the letter Dr. Peterson explained that he billed for services in order to pay the salaries of therapists. Although these responses lack the lucidity which characterize his denial of involvement, they are not as conclusive of Dr. Peterson’s credibility as the Government would have us believe. Dr. Peterson’s responses in the deposition are so patently inconsistent that they could hardly be attributed to anything other than his misunderstanding of the question propounded. With respect to the letter, Dr. Peterson also maintained that he was uncertain whether he told the integrity specialist that he had billed for services, thereby suggesting that there was a difference between the claims for salaries he admittedly filed and the claims for services which were the object of the instant proceedings. That the letter referred to different claims belies the impeaching force ascribed to it by the government.

      . Even if the record disclosed a motion for a new trial our conclusion would not be altered. The record convinces us that the Government has been given a full and fair opportunity to present all the evidence available oh the conspiracy charge. The facts have been fully developed and no useful purpose would be served by another conspiracy trial.


author: McENTEE, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Louis Irving PERKINS, Defendant-Appellant.
    No. 73-1064.
    United States Court of Appeals, First Circuit.
    Heard Nov. 7, 1973.
    Decided Dec. 14, 1973.
    Conrad W. Fisher, Worcester, Mass., by appointment of the Court, with whom Fisher, Helfenbein & Russell, Worcester, Mass., was on brief, for appellant.
    William A. Brown, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.

      Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

After a trial by jury, appellant was convicted of wilfully and forcibly assaulting two federal officers by means of a dangerous weapon, a rifle, in violation of 18 U.S.C. § 111 (1970). Although he urges numerous grounds for reversal, appellant primarily contends that the jury should have been instructed that the government must establish beyond a reasonable doubt that at the time of the assault he knew the agents were federal officers, and that failure to so instruct constituted reversible error. We affirm.

On the basis of the evidence presented at trial, the jury could reasonably find the following facts. In the early evening of January 5, 1972, Special Agents Drinan and Mullen, assigned to the Federal Bureau of Narcotics and Dangerous Drugs, went to 63 Highland Street, in Worcester, Massachusetts, for the purpose of seeing one Willie Trinidad, a reputed dealer in heroin. At the time they were operating as undercover agents and were dressed accordingly. Trinidad had apparently sold heroin to the agents some time earlier, and the purpose of the January 5 meeting was to arrange for a second purchase. The agents testified that when they reached the premises Trinidad would not let them in, though he did speak to them from behind a locked front door. Dri-nan and Mullen sought to persuade him to make another sale, but their efforts were repulsed. While Trinidad and the agents were thus engaged, appellant’s girl friend went upstairs to tell him what was going on. Appellant, a resident of the premises, also served as the building’s custodian and part of his function was to keep the place free from “undesirables.” After speaking with his girl friend, appellant immediately went downstairs, out the back entrance, and around to the front of the building to confront the agents. In the process, he picked up a four foot wooden club and began to brandish it at them.

Appellant, at the time, had absolutely no idea that these two men were federal officers, and, under the circumstances, he could not reasonably have been expected to know that they were. The agents had never encountered appellant before, and until their confrontation he had never been the object of their attention.

As appellant approached Drinan and Mullen with the club, they were preparing to leave the premises, having apparently concluded that further attempts to persuade Trinidad would be futile. Appellant ordered them to depart, and they responded that they were in the process of doing so. As they left, appellant, still brandishing the club, pursued them for approximately thirty feet and' then told Drinan to get up against the wall. He then called out for someone to get the police. At approximately this time, a group of people emerged from 63 Highland Street, one of whom was carrying a rifle with telescopic sights. Upon seeing this, the agents drew their revolvers and fled. As they did, appellant, who had not yet seen the rifle, dropped his club and retreated. Although the facts are hereafter somewhat hazy, it appears that appellant somehow acquired the rifle, pursued the agents and fired three or four shots at them. The agents were not injured. At this point, other federal agents surveilling the premises closed in and arrested appellant.

At trial, the court instructed the jury that appellant’s lack of knowledge regarding the agents’ status as federal officers was immaterial to conviction under § 111. In light of its other instructions this was correct, but because of the substantial number of prosecutions under this statute, and disagreement in the cases, real or apparent, we believe some elaboration is in order.

Although several early cases had held that such knowledge was a vital element to conviction under this statute, it is now the settled rule in virtually every circuit that, as a general proposition, scieftter need not be proven. As this court has recently stated, the legislative purpose behind § 111 is “to provide federal officers the protection of the federal courts when they are performing their duties. Burdening the government with an obligation to prove knowledge could seriously impede this purpose,” United States v. Langone, 445 F.2d 636, 637 (1st Cir.), cert. denied, 404 U.S. 915, 92 S.Ct. 226, 30 L.Ed.2d 189 (1971), see also United States v. Maynard, 452 F.2d 1087, 1088 (1st Cir. 1971) (per curiam). Moreover, although most criminal statutes enacted by Congress specifically and unmistakably provide for a requirement of scienter, § 111 “contains no words which would indicate that a person who commits one of the proscribed acts must do so with knowledge that his victim is a federal officer ..” United States v. Goodwin, 440 F.2d 1152, 1155 (3d Cir. 1971). Had Congress intended otherwise, “it could easily have made knowledge an essential ingredient.” United States v. Lombardozzi, 335 F.2d 414, 416 (2d Cir.), cert. denied, 379 U.S. 914, 85 S.Ct. 261, 13 L.Ed.2d 185 (1964).

Nonetheless, we are mindful that § 111 is not one of those statutes which have completely eliminated the requirement of mens rea. United States v. Goodwin, 440 F.2d 1152, 1156 (3d Cir. 1971); United States v. Ganter, 436 F. 2d 364, 367 (7th Cir. 1970); United States v. Wallace, 368 F.2d 537, 538 (4th Cir. 1966), cert. denied, 386 U.S. 976, 87 S.Ct. 1169, 18 L.Ed.2d 136 (1967); see Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). But, even without knowledge of the identity of the officer, mens rea would obviously be present in conduct which is unlawful of itself, i. e., an intentional assault.

There are, however, situations in which the defendant’s lack of knowledge of the agent’s status would be relevant. No court that we are aware of has held that a defendant who in good faith, because of ignorance of the officer’s identity, believes that he is acting in lawful defense of his person or property and uses no more than reasonable force in effectuating that purpose, can be convicted simply by proof that in fact he was impeding an officer in the performance of his duties. In such a situation the defendant would lack mens rea unless he knew that his actions would impede a federal officer’s performance of his duties — it is not enough for a conviction under the statute to prove simply the natural consequences of defendant’s conduct, without proof of a criminal intent. In cases of non-assaultive interference with an officer, or of physical resistance sought to be justified as self-defense, if the defendant used no more than reasonable force, there would be no criminal intent in the absence of knowledge of the officer’s status. Hence in these situations proof of such knowledge would be a necessary part of the government’s case.

In keeping with this principle, the district court properly and adequately charged the jury that if the defendant here was ignorant of the officers’ identity he could not be convicted unless he used more force than was necessary to protect the person or property of himself or others; that is, unless the justification of self-defense was not available because of his excessive conduct. The evidence clearly warranted a finding of such excessive force. Defendant has no complaint,

None of defendant’s other contentions have merit. They involve either allegations concerning the admission or exclusion of evidence, as to which the trial court did not abuse its broad discretion, or allegations concern-mg the purported failure of the government to provide the defense with Jencks Act materials, which contention is unsupported by the record.

Affirmed.

      . 18 U.S.C. § 111 (1970) provides:

        “Assaulting, resisting, or impeding certain officers or employees

      Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.
      Whoever, in the commission of any such acts uses a deadly or dangerous weapon, shall be fined not more than $10,000 or imprisoned not more than ten years, or both.”
      Appellant was acquitted on another count alleging assault by means of a wooden club.

      . See Hall v. United States, 235 F.2d 248 (5th Cir. 1956) ; Hargett v. United States, 183 F.2d 859 (5th Cir. 1950) ; Walker v. United States, 93 F.2d 792 (8th Cir. 1938) ; Sparks v. United States, 90 F.2d 61 (6th Cir. 1937) ; United States v. Bell, 219 F. Supp. 260 (S.D.N.Y.1963) ; United States v. Miller, 17 F.R.D. 486 (D.Vt.1955) ; cf. Pettibone v. United States, 148 U.S. 197, 13 S. Ct. 542, 37 L.Ed. 419 (1893).

      . See United States v. Maynard, 452 F.2d 1087 (1st Cir. 1971) (per curiam) ; United States v. Langone, 445 F.2d 636 (1st Cir.), cert. denied, 404 U.S. 915, 92 S.Ct. 226, 30 L.Ed.2d 189 (1971) ; United States v. Lombardozzi, 335 F.2d 414 (2d Cir.), cert. denied, 379 U.S. 914, 85 S.Ct. 261, 13 L.Ed.2d 185 (1964) ; United States v. Goodwin, 440 F.2d 1152 (3d Cir. 1971) ; United States v. Wallace, 368 F.2d 537 (4th Cir. 1966), cert. denied, 386 U.S. 976, 87 S.Ct. 1169, 18 L. Ed.2d 136 (1967) ; Pipes v. United States, 399 F.2d 471 (5th Cir. 1968), cert. denied, 394 U.S. 934, 89 S.Ct. 1207, 22 L.Ed.2d 464 (1969) ; United States v. Ganter, 436 F.2d 364 (7th Cir. 1970) ; United States v. Leach, 429 F.2d 956 (8th Cir. 1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971) ; United States v. Kartman, 417 F.2d 893 (9th Cir. 1969) ; cf. McNabb v. United States, 123 F.2d 848 (6th Cir. 1941), rev’d on other grounds, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), rehearing denied, 319 U.S. 784, 63 S.Ct. 1322, 87 L.Ed. 1727 (1943).

      . United States v. Langone, supra; accord, United States v. Maynard, supra; United States v. Lombardozzi, supra; United States v. Goodwin, supra; United States v. Wallace, supra; United States v. Ganter, supra.

      . See, e. g., United States v. Langone, supra, 445 F.2d at 637 (dictum) ; United States v. Goodwin, supra, 440 F.2d at 1156 (dictum) ; United States v. Wallace, supra, 368 F.2d at 538 (dictum).

      . In fact, most of the early cases stating that scienter must be shown can be seen as requiring it as proof of criminal intent where the defendant has presented evidence negating mens rea. See, e. g., Hall v. United States, supra (substantive offense was resisting arrest which might have been illegal if attempted by private person) ; Hargett v. United States, supra, 183 F.2d at 865 (defendants presented facts raising justification of self-defense and defense of property) ; Walker v. United States, supra (substantive offense was obstruction of justice by interfering with a witness, defendant alleged he was merely consulting with a codefendant and did not realize she was a witness) .


author: SIMPSON, Circuit Judge:

text:
    KNAPP-SHERRILL COMPANY, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
    No, 73-1358.
    United States Court of Appeals, Fifth Circuit.
    Jan. 21, 1974.
    Rehearing Denied March 18, 1974.

      R. Glenn Jarvis, McAllen, Tex., for petitioner.
    Marcel Mallet-Prevost Asst. Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., Willard I. Boss, Clifford Potter, NLRB, Region 23, Houston, Tex., William R. Stewart, Washington, D. C., for respondent. '
    Before BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

Knapp-Sherrill Company (the Company) asks that we review and set aside a Board order finding it in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, (Title 29, U.S.C., Sec. 151 et seq.) for refusal to bargain with the Union certified by the Board as the exclusive bargaining representative of the Company’s employees in an appropriate unit. The board has filed a cross-application for enforcement of its order.

The dispute centers around the proper construction to be accorded to a “Stipulation for Certification upon Consent Election” between the Union and the Company under which the pre-election hearing provided for in Section 9(c)(1) of the Act was waived, the parties agreeing to proceed directly to an election in an agreed-upon bargaining unit which included “[a] 11 production and maintenance employees, including ware-housemen and truck drivers, employed at the Employer’s facilities at . Donna, Texas.” The Stipulation contained standard printed language stating that the election “shall be held in accordance with the National Labor Relations Act, the Board’s Rules and Regulations, and the applicable procedures and policies of the Board.” With regard to voter eligibility the Stipulation provided :

“The eligible voters shall be those employees included within the Unit who were employed during the payroll period indicated below [March 31, 1971], including employees who did not work during the payroll period because they were ill or on vacation or temporarily laid off . but excluding any employees who have quit or been discharged for cause . . . .”

A secret-ballot election was conducted pursuant to the Stipulation on April 29, 1971, in which the Tally of Ballots disclosed that 85 votes were cast for the Union, 84 against. 18 ballots were challenged by the Board agent because the names of the voters casting them did not appear on the eligibility list supplied by the Company. Because there were sufficient challenged votes to affect the election’s result, the Board’s Houston, Texas, Regional Director investigated the challenges and concluded that substantial issues of fact and law were involved and directed a hearing be held. A hearing ensued before a duly designated Hearing Officer, at which all parties appeared and participated.

The Hearing Officer recommended to the Board that challenges to five of the ballots be sustained but that the challenges to the remaining 13 ballots be overruled and the votes counted. Of these 13 ballots, 11 were cast by so-called “temporary seasonal” employees and one by a “regular seasonal” employee. The Company argued initially that all 13 were ineligible under the Stipulation, but now questions only the votes of the 11 “temporary seasonal” employees.

The Company processes and cans tomatoes, carrots, beets, green beans and citrus juice at various seasons of the year and its need for employees varies considerably with weather and crop conditions. Its two departments, production and warehouse, have a combined total of 50 to 60 regular employees who work full time. At the start of the canning of a particular crop this regular work force is supplemented by about 30 to 35 workers considered by the company as “regular seasonals” who work on the processing of. all vegetables. During the early summer six weeks tomato canning season numerous additional employees, 170 to 200 in 1970, for example, are needed. These are called “temporary seasonals” by the Company and they are often used for canning other vegetables than tomatoes during various times of the year. These temporary sea-sonals are not carried on the payroll records except when they are working but when the workload increases hiring preference is given to those who have worked for the Company in the past. As a result many temporary seasonals work for the Company on a regular basis during the busy seasons. An assistant manager testified “they are generally hired year after year because of their ability to perform the duties that they do perform”. He added that while the Company’s business may fluctuate, they have a regular need for temporary sea-sonals at least during the tomato season. This is confirmed by the work history of the temporary seasonals whose ballots are at issue. Most of these have worked at least three or four years for the Company and some have worked there for as many as twenty years.

The Hearing Officer concluded that “ ‘temporary seasonals’ worked under the same general conditions as the regular seasonals whose eligibility is not questioned. The difference rests only in the circumstance that their periods of employment were shorter and less certain than those of the ‘regular seasonals’ . Because of [their] work history and because the record otherwise demonstrates that each had a reasonable expectation of substantial employment from year to year, I find that they shared a community of interest with the Employer’s regular work force and the ‘regular seasonals’.”

The Board (Chairman Miller dissenting) overruled the Company’s exceptions to the Hearing Officer’s Report and Recommendations and on May 15, 1972, issued its Decision and Direction adopting the Hearing Officer’s recommendation that the 13 ballots be opened and counted. The Regional Director opened the ballots and issued a revised tally showing 93 votes for and 88 votes against the Union, to which the Company again objected. The Regional Director recommended that the Board overrule the objection and certify the Union, which action the Board took on June 20, 1972.

The Company thereafter refused to bargain with the Union as the representative of the employees in the certified unit, whereupon the Union filed charges of refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. The Board-over Company opposition requesting a hearing on the ground that it had “evidence which was previously unavailable at the hearing on the challenged ballots, and which is highly pertinent to the issues involved in the case”-granted summary judgment and held that the Company had violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the duly certified representative of its employees in an appropriate unit. The Company was ordered to cease and desist from the unfair labor practices found, to bargain on request and to post appropriate notices. To insure that the employees in the appropriate unit will receive the services of their selected bargaining agent for a reasonable time, the Board fixed the initial period of certification to begin on the date when the Company commences to bargain in good faith with the Union.

The Company’s conceded refusal to bargain is based entirely on the contention that the Board’s certification of the Union is invalid. It contends that the Board erred in determining which employees were eligible to vote in the election. The Company bears the burden of establishing that the Board’s eligibility determination was erroneous. NLRB v. Hondo Drilling Company, 5 Cir. 1970, 428 F.2d 943, 946; NLRB v. Bar-Brook Mfg. Co., 5 Cir. 1955, 220 F. 2d 832, 834; NLRB v. Atkinson Dredging Co., 4 Cir. 1954, 329 F.2d 158, 163-164, cert. denied 377 U.S. 965, 84 S.Ct. 1647, 12 L.Ed.2d 736.

The Stipulation controls unless its provisions are repugnant to the Act or to settled Board policies. As noted the agreement provided that “temporarily laid off” employees are eligible to vote. The dispute in the Board’s proceedings and before us is as to whether particular employees are within this eligibility classification. Absent clear evidence of the parties’ intention to apply some other test, the Board, we think, properly resolved this eligibility question in the same manner as in other cases where the eligibility of employees who do not work full time is in issue, namely, by determining the extent to which these employees share a community of interests with bargaining unit employees. Congress has granted the Board a “wide degree of discretion” in resolving such disputes. NLRB v. A. J. Tower Co., 1946, 329 U.S. 324, 330, 67 S.Ct. 324, 327, 91 L.Ed. 322, 327. We think that the Board’s disposition of the challenged ballots was correct and well “within the sound discretion of the Board”. NLRB v. Tri-Service Drilling Co., 5 Cir. 1970, 432 F.2d 1271, 1274. The challenged employees had a reasonable expectation of recall so as to justify their inclusion in the bargaining unit. Although the Company’s business fluctuated it had a recurring yearly need for temporary seasonals during the tomato season and often during other seasons as well. All the challenged employees came from the same local labor market and all had worked for the Company in past years, some for twenty years or more. Each had been employed in 1971 prior to the March 31 eligibility date and following a brief layoff about that time were in fact recalled to work. While the Company does not maintain a recall list of temporary seasonals, there is support in the record for the Hearing Officer’s finding that its supervisors are directed to give hiring preference to former temporary seasonals who apply.

Although the Company argues that “[t]he Board erred in deciding the challenges in terms of its customary rules rather than in terms of whether they were eligible to vote as provided by and as intended by the parties in the Stipulation for Certification . . we agree with the Board that its responsibility in stipulated unit cases is twofold: “to ascertain the parties’ intent with regard to the disputed employee and then to determine whether such intent is inconsistent with any statutory provision or with established Board policy”. The Tribune Company, 190 NLRB No. 65, (1971); J. Olson Machine Co., 196 NLRB No. 89, (1972); Newhouse Broadcasting Corporation, 198 NLRB No. 60, (1972). In this case there is no evidence that the parties even discussed the inclusion or exclusion of temporary seasonal employees who were not working on the eligibility date, much less that they agreed on the issue. Instead the parties signed a Stipulation containing a standard eligibility clause which reflected, as the Hearing Officer noted, “uniform Board policy”. Under that policy the Board, with the approval of this and other courts, has held that seasonal employees who are out of work because of a decline in their employer’s business but who have a reasonable expectation of reemployment in the future are considered “temporarily laid off” and eligible to vote in a representation election. NLRB v. Hondo Drilling Co., supra; NLRB v. C. H. Sprague & Son, Co., 1 Cir. 1970, 428 F.2d 938, 940; NLRB v. Jesse Jones Sausage Company, 4 Cir. 1962, 309 F.2d 664, 665-667; Brewer & Brewer Materials, Inc., 182 NLRB 788, 793 (1970), affirmed 6 Cir. 1971, 436 F.2d 1383. Inasmuch as the Company has not shown that the parties reached any understanding as to the meaning of the printed eligibility clause, we think the Stipulation should be construed as incorporating the Board rule.

We agree with the Board that no understanding of the ineligibility of this group of employees is shown by reason of the fact that only eleven temporary seasonals on layoff status attempted to vote. The Board correctly observed that temporary seasonals on layoff status

“were intentionally left off the eligibility list furnished by the Employer, because of the circumstance that they were not on the payroll on the agreed-upon eligibility date controlling for non-seasonal employees. Despite this, some of those in the temporary seasonal category but not on the Employer’s list did east ballots. Thus, to the extent that any failure to vote was caused by the action of any participant in the election process, the fault would appear to lie with the Employer in furnishing an incomplete eligibility list.”

We hold that the Board properly construed the Stipulation in the light of established Board policy as approved by the courts. The Union .was properly certified and the Company's refusal to recognize and bargain with the Union as the exclusive bargaining representative of its employees in an appropriate unit was a violation of Section 8(a)(5) and (1) of the Act. The Company’s petition for review is denied and the Board’s Order of January 12, 1973, is directed to be enforced in full.

Petition denied. Cross-Application for Enforcement granted.

      . Reported at 201 NLRB 20.

        . Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local 173.

      . The thirteenth ballot was cast by an employee on military leave on the eligibility date and is not here in issue. The single ballot of the “regular seasonal” employee, Juanita De LaGarza is no longer questioned by the Company.

      . 196 NLRB No. 106.

      . See Mar Jac Poultry Co., Inc., 136 NLRB 785 (1962); NLRB v. Commerce Co., 5 Cir. 1964, 328 F.2d 600, 601, cert. denied, 379 U.S. 817, 85 S.Ct. 32, 13 L.Ed.2d 28; Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enforced, 10 Cir. 1965, 350 F.2d 57.

      . See NLRB v. Waterman S.S. Corp., 1940, 309 U.S. 206, 226, 60 S.Ct. 493, 84 L.Ed. 704; NLRB v. Tri-Service Drilling Company, 5 Cir. 1970, 432 F.2d 1271, 1274, cert. den. 401 U.S. 940, 91 S.Ct. 941, 28 L.Ed.2d 221; Shoreline Enterprises of America v. NLRB, 5 Cir. 1959, 262 F.2d 933, 942.


author: GIBSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. William Lawrence WHITE, Jr., a/k/a Billy White, Appellant.
    No. 73-1492.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 14, 1973.
    Decided Dec. 17, 1973.

      Gary B. Garrison, Des Moines, Iowa, on brief for appellant.
    Allen L. Donielson, U. S. Atty., and Robert L. Fanter, Asst. U. S. Atty., Des Moines, Iowa, on brief for appellee.
    Before GIBSON and ROSS, Circuit Judges, and SMITH, Senior District Judge .

       The Honorable Talbot Smith, Senior District Judge, Eastern District of Michigan, sitting by designation.

   GIBSON, Circuit Judge.

Defendant, William Lawrence White, appeals his jury conviction on a charge of distribution of heroin in violation of 21 U.S.C. § 841(a)(1). He raises four contentions of error on appeal: (1) the District Court erred in giving a flight instruction; <2) the Government’s failure to call the informant as a witness deprived him of a fair trial; (3) the defendant’s motion to dismiss based upon a delay in filing charges should have been granted; and (4) his motion to dismiss due to a delay in trial caused by a withdrawal of a stipulation by the Government should have been granted. The facts necessary to a resolution of these issues will be set out in the course of this opinion.

7. The Flight Instruction

The defendant argues that it was reversible error to instruct the jury that flight could be considered as evidence of guilt. The transaction with which defendant was charged occurred September 27, 1972. A complaint was filed March 7, 1973, and an arrest warant was issued by a United States Magistrate the same day. It was during the attempted arrest of defendant pursuant to this warrant that the flight occurred. March 7th, at some time between 11:00 p. m. and midnight, the four agents of the Drug Abuse and Law Enforcement Agency, who had established surveillance of defendant’s residence earlier in the evening, observed defendant walking in their direction across the street from their position in their car. As he approached, Agent Harker testified that he stepped from the car, identified himself as a federal agent, and said he had an arrest warrant for defendant’s arrest. The defendant then began running from the agents and was caught a block and a half away. Defendant does not deny that he was in flight, although he does dispute that he was told they were federal agents. He testified that he ran because there were several men in the car and he didn’t know any of them or their business with him.

This circuit has recognized the propriety- of introduction of evidence regarding flight and instructing the jury thereon. Golliher v. United States, 362 F.2d 594, 604 (8th Cir. 1966); Gicinto v. United States, 212 F.2d 8, 11 (8th Cir.), cert. denied, 348 U.S. 884, 75 S.Ct. 125, 99 L.Ed. 695 (1954). And it is generally recognized that such a procedure is proper in appropriate cases. See II Wig-more on Evidence § 276 (3rd ed. 1940); accord, Shorter v. United States, 412 F.2d 428 (9th Cir.), cert. denied, 396 U.S. 970, 90 S.Ct. 454, 24 L.Ed.2d 436 (1969). Flight, however, may not be a reliable indication of guilt, Alberty v. United States, 162 U.S. 499, 511, 16 S.Ct. 864, 40 L.Ed. 1051 (1896), and its propriety has been questioned. ' Wong Sun v. United States, 371 U.S. 471, 483 n. 10, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Robinson, 154 U.S.App. D.C. 265, 475 F.2d 376 (1973); United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 376 (1973).

As the instruction itself states, the inference of guilt that may be drawn by the fact of flight only arises “immediately after -the commission of a crime, or after he is accused of a crime that has been committed” (emphasis supplied). If the inference is to have any validity as an indication of guilt, the trial court should assure itself that some evidence exists regarding an accusation of the specific crime charged before instructing the jury that flight may be considered in its determination of guilt. Embree v. United States, 320 F.2d 666, 668 (9th Cir. 1963); but see Shorter v. United States, supra at 430. In the circumstances of this ease, in which it is undisputed that the defendant was not advised of the crime he is now charged with at the time of his flight, the attempted arrest occurred over five months after the transaction charged, and there is no indication that defendant knew at the time of his flight that he was being sought for the crime charged, we do not think the jury could properly draw an inference of guilt from defendant’s flight. The court, therefore, erred in giving the challenged instruction. However, we are convinced that this error was harmless due to the other proof at trial of defendant’s participation in the crime charged. Fed.R.Crim.P. 52(a).

II. Failure to Call the Informant

We find no denial of due process in the fact that the Government failed to produce the informant as a witness. The rule in this circuit is that stated in United States v. Mosby, 422 F.2d 72, 74 (8th Cir.), cert. denied, 399 U.S. 914, 90 S.Ct. 2217, 26 L.Ed.2d 571 (1970):

Absent unusual circumstances such as knowingly concealing evidence favorable to a defendant, the Government has a wide discretion with respect to the witnesses to be called to prove its case. The Government is not ordinarily compelled to call all witnesses competent to testify including special agents or informers.

Accord, United States v. Martin, 482 F.2d 202, 204 (8th Cir. 1973); United States v. Williams, 481 F.2d 735, 737 (8th Cir. 1973).

Here the identity of the informant was known to the defendant before trial. He had testified at the earlier trial of defendant which ended in a mistrial, and in reading that testimony we are unable to find any basis for concluding that the informer’s testimony would have been favorable to the defendant. No adequate justification for circumscribing or limiting the discretion of the prosecutor on whether or not to call the informer has been advanced. Nor was this a case in which defendant relied on an entrapment defense that might require the Government to produce the informant at trial. United States v. Pollard, 479 F.2d 310 (8th Cir. 1973).

III. Delay in indictment

We have recently considered the question of delay in indicting a defendant in United States v. Atkins, 487 F.2d 257 (8th Cir., 1973). The defendant claims his ability to present a successful alibi defense was prejudiced by the over five-month delay between the transaction (September 27, 1972) and the time he was indicted (March 21, 1973). In Atkins the period of delay was six months and a similar claim of prejudice to an alibi defense was presented. We found that defendant had not demonstrated sufficient actual prejudice to establish a denial of due process and so find here.

A delay between the commission of an offense and indictment may be a denial of due process, if prejudicial. Terlikowski v. United States, 379 F.2d 501 (8th Cir. 1967). The defendant must establish that actual, substantial prejudice has resulted from the prosecutorial delay. United States v. Emory, 468 F.2d 1017, 1020 (8th Cir. 1972); United States v. Golden, 436 F.2d 941, 943 (8th Cir.), cert. denied, 404 U.S. 910, 92 S.Ct. 236, 30 L.Ed.2d 183 (1971).

The defendant claimed that at the time of the transaction charged he was camping at Pine Lake State Park, which is 75-80 miles from Des Moines, the site of the crime. The testimony of Mr. and Mrs. Durrell, who were allegedly also at the campgrounds with defendant, was presented, and other disinterested parties testified that they saw two young couples, one black and one white, at the campground that date, although they could not identify the defendant. We note that this was because of the distances involved in viewing the couples at the campground and not due to the delay in indictment. The campground receipt was introduced to show that defendant registered there on September 27, 1972, and a friend testified that she saw the defendant returning to Des Moines the next day, apparently from a camping trip. The Government introduced the testimony of the four DALE agents who had observed the transaction. The defendant was able to present an arguable alibi defense. That the jury believed the Government’s evidence and disbelieved the defendant’s does not demonstrate sufficient actual prejudice to establish a due process violation.

IV. Withdrawal of Stipulation

The defendant contends that the trial court under Fed.R.Crim.P. 48(b) should have dismissed the indictment, because the Government’s withdrawal of a stipulation regarding an absent witness’ testimony created a two-week trial delay. The defendant was indicted on March 21, 1973, and the first trial, which resulted in a mistrial, started on May 7, 1973, less ■than 60 days after indictment. The second trial commenced on May 29, 1973. This contention borders upon being frivolous; moreover, our standard of review is whether the trial judge abused his discretion in refusing to dismiss the indictment. Hodges v. United States, 408 F.2d 543 (8th Cir. 1969). We can find no abuse here.

Without attempting to detail the facts underlying this claim, it appears that there was a failure to communicate between the Assistant United States Attorney and defendant’s counsel regarding the proposed stipulation. The district court had set an April 20, 1973, deadline for the stipulation; otherwise, he felt compelled to change the trial date, originally April 23, 1973. The defendant argues that the stipulation had been entered into by the parties before the court’s deadline. The Government argues that there was an error in the stipulation, and therefore it informed the court on April 20th that it had not been agreed upon. The district court then changed the trial date to May 7, 1973. We believe this was a proper exercise of his judicial discretion and did not prejudice any right of the defendant. We are not presented with the question of whether the Government should have been allowed to withdraw the stipulation, because at the time the court changed the trial date it was not aware that the stipulation had been agreed upon. We believe that the less than 60-day period elapsing between indictment and the date of the first trial demonstrates an expeditious handling of the defendant’s case and dismissal was not required by Rule 48(b).

Judgment of conviction affirmed.

      . The trial was before the Honorable William Hanson, Chief Judge of the District Court for the Southern District of Iowa. The Honorable William C. Stuart held the pretrial hearing upon defendant’s motion to dismiss the indictment.

      . The instruction used by the court is substantially that found in I E. Devitt & C. Blackmar, Federal Jury Practice and Instructions, § 11.18 (2d ed. 1970) and reads as follows:
      The intentional flight or concealment of a defendant immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not of course sufficient in itself to establish his guilt; but is a fact which, if proved, may be considered by the jury in the light of all other evidence in the case, in determining guilt or innocence. Whether or not evidence of flight or concealment shows a consciousness of guilt, and the significance to be attached to any such evidence, are matters for determination by the jury.
      In your consideration of the evidence of flight you should consider that there may be reasons for this which are fully consistent with innocence.

      . Rule 48(b) provides in pertinent part:
      * * * [I]f there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint.


author: ALFRED T. GOODWIN, Circuit Judge:

text:
    CULINARY ALLIANCE & BARTENDERS UNION, LOCAL 703, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 72-2155.
    United States Court of Appeals, Ninth Circuit.
    Nov. 30, 1973.
    Rehearing Denied Jan. 23, 1974.

      Herbert M. Ansell (argued), Ansell & Ansell, Los Angeles, Cal., for petitioner.
    Abigail Baskir (argued), Asst. Gen. Counsel, Washington, D. C., Abraham Siegel, Director, Region 31, NLRB, Los Angeles, Cal., for respondent.
    Before BARNES, TRASK, and GOODWIN, Circuit Judges.
   ALFRED T. GOODWIN, Circuit Judge:

Culinary Alliance & Bartenders Union, Local 703, AFL-CIO, petitions for review of the order of the National Labor Relations Board which denied the union’s request for compensatory damages while granting other relief from an employer found guilty of an unfair labor practice.

Without deciding whether or to what extent the Board may have the power to grant compensatory damages for an employer’s refusal to bargain, we find that damages would be inappropriate in this case, and deny the union’s petition to remand. The Board decision is reported in San Luis Obispo County & Northern Santa Barbara County Restaurant & Tavern Ass’n, 196 N.L.R.B. No. 155, 80 L.R.R.M. 1584 (1972).

The union and the above-named association, a group of employers existing for the purpose, among others, of bargaining with labor organizations, have been parties to collective-bargaining agreements since at least 1965. During the 1971 contract negotiations, the employers’ association hired E. J. Gund and Associates, a labor-consultation firm which enjoyed a reputation for success in bringing about nonunion conditions in establishments formerly unionized. Through the machinations of Gund and Associates, negotiations with the union were effectively brought to a standstill, and employees circulated petitions repudiating the union.

The regional director eventually dismissed the association’s petition for an election, noting that the union had filed a complaint and that a notice of hearing had been issued alleging violations of § 8(a)(1) and (5) of the Labor-Management Relations Act, 29 U.S.C. § 158(a)(1) and (5). The trial examiner entered his intermediate report on January 28, 1972, recommending a decision finding that the association had engaged in unfair labor practices and an order requiring it to bargain collectively. The examiner refused, however, to grant the union’s request for monetary relief.

The union argued that unless the unit employees are compensated for wage increases and fringe benefits which arguably they would have obtained through collective bargaining but lost through the association’s refusal to bargain in good faith, no effective remedy can be had.

The Board affirmed the rulings, findings and conclusions of law of the trial examiner, and specifically adopted his recommended order requiring the association to bargain collectively with the union on request. The Board did not comment on the examiner’s denial of the union’s request for monetary relief. San Luis Obispo County & Northern Santa Barbara County Restaurant & Tavern Ass’n, swpra.

In petitioning this court to review that portion of the Board’s order which denied the additional relief sought by the union, the union recognizes that there is no precedent in this circuit for such supplemental relief.

The first and leading case for the proposition that the Board has the power to award compensatory damages in employer-refusal-to-bargain cases is International Union of Elec. Workers v. NLRB [Tiidee Products], 138 U.S.App. D.C. 249, 426 F.2d 1243, cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 256 (1970). There, the Court of Appeals for the District of Columbia Circuit found that in a case where the company’s refusal to bargain was a “clear and flagrant violation of the law,” 426 F.2d at 1248, the Board’s use of its traditional remedy — a cease-and-desist order — did not adequately effectuate the policies of the Act since it improperly rewarded the company for its intransigence. The court remanded the ease to the Board for further consideration of an award that would include meaningful make-whole relief to the union.

The rule announced in Tiidee Products has been followed in a growing line of decisions by the District of Columbia Circuit (see, e. g., UAW v. NLRB [Ex-Cell-O Corp.], 145 U.S.App.D.C. 384, 449 F.2d 1046, 1048-1050 (1971) ), and has received a good deal of support from law review commentators. See, e. g., Note, NLRB Power to Award Damages in Unfair Labor Practice Cases, 84 Harv.L. Rev. 1670 (1971). Nonetheless, the Board remains unconvinced that it possesses the statutory authority to grant a make-whole remedy for loss of collective-bargaining benefits. See J. P. Stevens & Co., 205 N.L.R.B. No. 169, 84 L. R.R.M. 1092, 1093 (Aug. 27, 1973). Moreover, no other circuit has yet endorsed the position taken by the District of Columbia Circuit.

In this ease we need not decide whether the Board has the power to grant compensatory damages for refusal to bargain, because we agree with the finding of the trial examiner, affirmed by the Board, that the association’s misconduct was not so egregious as to justify the imposition of such an unusual remedy. The District of Columbia Circuit itself has created exceptions to its Tiidee Products rule in cases where the legality of an employer’s refusal to bargain rested on a factually debatable question and where the employer was not engaged in litigation to delay final resolution of the dispute. See, e. g., Retail Clerks Union, Local 1401 v. NLRB [Zinke’s Foods], 149 U.S.App.D.C. 370, 463 F.2d 316, 325 (1972); Southwest Regional Joint Board, Amalgamated Clothing Workers v. NLRB [Levi Strauss & Co.], 142 U. S.App.D.C. 337, 441 F.2d 1027, 1035-1036 (1970); United Steelworkers of America v. NLRB [Quality Rubber Mfg. Co.], 139 U.S.App.D.C. 146, 430 F.2d 519, 520-522 (1970).

Here, the Board found that, while the association did not entertain a good-faith doubt of the union’s majority status on the date it withdrew recognition, the association’s initial impression of widespread employee dissatisfaction was borne out when approximately 94 of the 304 employees wrote letters and signed petitions disavowing the union. Under these circumstances, the Board properly could find that the association’s refusal to bargain was not a “clear and flagrant violation of the law.” Tiidee Products, 426 F.2d at 1248. Moreover, we note that the association has complied voluntarily with the Board’s order; the Board was not required to seek enforcement from this court.

Hence, we affirm the conclusion of the Board that the facts of this case do not call for a compensatory-damages remedy, but we reserve the question whether the Board has the power to award such a remedy for the case in which make-whole relief would be appropriate. See Lipman Motors, Inc. v. NLRB, 451 F.2d 823, 828-829 (2d Cir. 1971); Herald Co. v. NLRB, 444 F.2d 430, 436-437 (2d Cir.), cert. denied, 404 U.S. 990, 92 S.Ct. 532, 30 L.Ed.2d 541 (1971).

The petition to remand is denied.