author: FEINBERG, Circuit Judge:

text:
    GAF CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    Nos. 49, 50, Dockets 72-1682, 72-1838.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 25, 1973.
    Decided Dec 4, 1973.
    Roger S. Kaplan, New York City (Jackson, Lewis, Schnitzler & Krupman, Allan Sloan, Labor Counsel, GAF Corp., New York City, on the brief), for petitioner.
    John D. Burgoyne, Atty., Washington, D. C. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore, Deputy Asst. Gen. Counsel, H. J. Engel, Atty., Washington, D. C., on the brief), for respondent.
    Before SMITH, FEINBERG and OAKES, Circuit Judges.

      . A principal issue in the Board proceedings was whether the Company had promised the March 1 increase, or had said only that it was being considered or recommended. The administrative law judge found that the increase had been promised. This finding is apparently not attacked in this court, probably for the excellent reason that it is amply supported by the evidence.

   FEINBERG, Circuit Judge:

GAF Corporation (the Company) peti- ■ tions to review and set aside, and the National Labor Relations Board cross-applies to enforce, an order of the Board which found that the Company cancelled a wage increase during a union organizational . campaign and thereby violated sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3). Although the case is a close one, it rests upon a finding of fact which we feel is sufficiently supported by the record. Accordingly, we deny the petition and enforce the Board’s order.

I

The relevant facts, as found by the administrative law judge, may be briefly stated. During the first week in February 1971, the Company had meetings, by shifts, with the guards employed at its plant in Linden, New Jersey, in order to impart information regarding a wage increase. Richard Eschle, the plant’s Personnel Manager, told the guards that, as a result of a survey of wages in the area, the Company had decided to grant the guards an increase in pay, effective March l. This increase to competitive wage levels was substantial: for employees with more than 90 days service, from $2.93 per hour to $3.-50 per hour. Eschle also said that this raise was in addition to a six per cent increase, which had gone into effect on February 1.

At about the same time as these meetings, Local 53, International Union of Police and Protection Employees, IWA (the Union) filed a petition with the Board, seeking certification as the bargaining representative of the Company’s guards. About a week, or two later, the Company held a second series of meetings. At these, Eschle announced that the March 1 wage increase would not go into effect, reading the following statement prepared by an executive of the Company at its New York office:

Gentlemen:
I have asked you to come in today to explain a situation which, unfortunately, I feel very bad about. You remember we met on February 5, at which time we discussed your working conditions, wages and fringes. At that time, I told you that effective February 1, you would receive a wage increase and that the company would seriously consider an additional wage increase effective as of March 1.
Approximately the same time we received a notice from the National Labor Relations Board advising us that you folks have petitioned for an election to be represented by the International Union of Police and Protection Employees — I.W.A.—to represent you in collective bargaining.
It is with regret that your Management, being law-abiding, because of this situation now finds itself in a position where we are seriously concerned about the risks involved in going ahead with the March 1 proposed increase on the grounds that we would be exposing the company to possible legal action for attempting to bribe you or influence you. For this reason, since there is a third party involved now, I must advise you that the increase which we considered for March 1 will not be granted. Again, I repeat, I sincerely regret that we find ourselves in this position.

The March 1 increase was never made effective.

In the Board proceedings, the administrative law judge, after a long discussion of the relevance of the Company’s motive in cancelling the increase, concluded :

(1) that there is no substantial evidence establishing that the Respondent’s motivation in denying the increases was to avoid charges of influencing or bribing employees
(2) from the available evidence that the Respondent’s purpose was not to avoid such charges but more probably to place the onus on the Union for the loss of the increase.

The Board summarily affirmed, concluding that the Company had violated sections 8(a)(1) and (3) of the Act by can-celling a wage increase for its employees because the Union had filed a representation petition. The Board’s order required the Company to cease and desist from such practices; relying on the administrative law judge’s finding that the increase had been promised, the Board also ordered the Company to make its employees whole for any loss of earnings. The petitions to this court followed.

II

We have had a number of cases raising the question whether, in the context of union organizational activity, an employer commits an unfair labor practice by withholding an expected wage increase. While there is a difference of language in these opinions as to whether an improper employer motive must be shown, a common thread of all is that the presence of such a motive justifies an unfair labor practice finding. Here, the administrative law judge and the Board both found, after careful examination of all the circumstances surrounding the Company’s decision to withhold the March 1 increase, that the Company’s purpose was to convince its employees that the Union was responsible for the loss of their wage increase-. We conclude that this finding is supported by substantial evidence and accordingly enforce the Board’s order.

In reaching our conclusion, we rely on the Trial Examiner’s discussion of the necessity for a motive by the Employer to interfere with the employees’ free choice only in the circumstances of this case and only with respect to the violation of Section 8(a)(3).

We had occasion in NLRB v. Dorn’s Transportation Co., 405 F.2d 706 (2d Cir. 1969), in a similar context, to identify two factors strongly indicative of illegal employer motivation in cancelling a pay raise — prior announcement that the raise would take effect on a specific date and efforts to fix the blame for cancellation upon the Union. Id. at 715. Both are present here; the guards had been promised the raise effective March I, and the arrival on the scene of a “third party” was the stated reason for cancellation. Together, these factors shift the burden to the employer to come forward with an explanation for his conduct. And here, despite the Company’s professed concern over exposure to “legal action” if it went ahead, it offered insufficient evidence that this was its actual motive for withholding the increase. The Company did not present testimony from those of its officers who actually made the decision to withhold. Cf. NLRB v. M. H. Brown Co., 441 F.2d 839, 842 (2d Cir. 1971); NLRB v. Dorn’s Transportation Co., supra, 405 F.2d at 713. Eschle, who was called, was not privy to the decision itself, and could only testify to what his superiors had told him, i. e., that the reason for not granting the increase was set forth “in the statement.” Moreover, the Company did not contend that it acted on advice of counsel; in this complex area of labor law, it seems unlikely that laymen striving to conform to the law would venture to make decisions on their own estimate of the legal consequences of their actions. Cf. NLRB v. M. H. Brown Co., supra, 441 F.2d at 842-843; J. J. Newberry Co. v. NLRB, 442 F.2d 897, 899 (2d Cir. 1971).

Citing the “damned if you do and damned if you don’t” reference in Dorn’s and Newberry, the Company points out that the promised increase here was unusually large. Going ahead in the face of union activity, says the Company, would have subjected it to an unfair labor practice charge; therefore, an attempt to avoid that risk was perfectly proper. However, in view of the other circumstances already noted, the administrative law judge was not required to conclude that this was in fact the Company’s motive. The Company also argues that a recent Board decision has “altered” Board law and that, as a result, we should not now enforce the prior Board order here involved. That decision, however, if anything, appears to change Board doctrine in the direction of our opinion in Dorn’s.

We believe that there is substantial evidence on the record as a whole to support the finding of the administrative law judge that the Company’s purpose was not “to avoid charges of influencing or bribing employees,” but was “to place the onus on the Union for the loss of the increase.” Accordingly, the Company’s petition for review is denied, and the Board’s cross-application for enforcement is granted.

      . The Board’s order also found that the Company unlawfully refused to bargain in violation of § 8(a) (5) of the Act. That portion of the order is apparently not contested.

      . The trial examiner’s decision was issued in January 1972. The title was changed to “administrative law judge” in August 1972.

      . Although the statement says that at the earlier meetings Eschle had said only “that the company would seriously consider” the March 1 increase, the Board found, see note 3 supra, that at the earlier meetings the March 1 increase “had been granted and announced to the employees.”

      . The administrative law judge also made the following alternative finding:
      In any event, even if the denial or cancellation was motivated solely by the Respondent’s genuine concern over the possibility of legal action arising from a grant of the March wage increase, I would still find it to be in violation of Section 8(a)(1) and (3). This for the reason that the Respondent has shown no objective basis or necessity warranting apprehension on its part, and arising out of its experience, that granting of the increase would result in charges. The record discloses no reasonable basis for an unfair labor practice or other charge against the Respondent if it had executed the March increase, as it did the February 1 increase. Consequently, the cancellation had the inevitable tendency in the circumstances to interfere with and restrain employee freedom to choose whether to designate a bargaining representative, whatever the Respondent’s actual motive.

      . The Board also noted :

      . NLRB v. Hendel Mfg. Co., 483 F.2d 350 (2d Cir. 1973) ; NLRB v. M. H. Brown Co., 441 F.2d 839 (2d Cir. 1971) ; J. J. Newberry Co. v. NLRB, 442 F.2d 897 (2d Cir. 1971) ; NLRB v. Dorn’s Transp. Co., 405 F.2d 706 (2d Cir. 1969) ; Federation of Union Representatives v. NLRB, 339 F.2d 126 (2d Cir. 1964).

      . Compare J. J. Newberry Co. v. NLRB, 442 F.2d at 900, and NLRB v. Dorn’s Transp. Co., 405 F.2d at 715, with NLRB v. Hendel Mfg. Co., 483 F.2d at 353, and Federation of Union Representatives v. NLRB, 339 F.2d at 129.

      . On this view of the case, we need not discuss the administrative law judge’s alternative finding or the Board’s caveat. See notes 5 and 6 supra.

      . In saying this, we do not mean to imply that reliance on counsel’s advice would be conclusive evidence of a proper motive. See NLRB v. Hendel Mfg. Co., 483 F.2d at 353.

      . Singer Company, Friden Division, 199 N. L.R.B.No. 162 (Oct. 31, 1972).

      . In Singer, the Board did rule that an employer had lawfully withheld an increase. However, the benefits there, as in Newberry and in Dorn’s, were merit increases, whose bestowal and timing were purely within the discretion of the employer. Moreover, the employer did not publicly announce that he would confer no new increases while the union was organizing.


source: Caselaw Access Project

author: BELL, Circuit Judge: COLEMAN, Circuit Judge GEE, Circuit Judge CLARK, Circuit Judge, with whom SIMPSON, Circuit Judge, joins,

license: Public Domain

text:
    Albert C. TONEY et al., Plaintiffs-Appellees, v. N. A. WHITE et al., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Myrtis BISHOP et al., Defendants-Appellants.
    No. 72-3307.
    United States Court of Appeals, Fifth Circuit.
    Dec. 3, 1973.

      John T. Seale, Asst. Dist. Atty., Tallu-lah, La., for defendants-appellants.
    George M. Strickler, Jr., Asst. Atty. Gen., New Orleans, La., for Toney and others.
    J. Stanley Pottinger, Civil Rights Div., Dept, of Justice, David L. Norman, Asst. Atty. Gen., Civil Rights Div., Dept, of Justice, M. Karl Shurtliff, Gerald W. Jones, Attys., Civil Rights Div., Dept, of Justice, Washington, D. C., Donald E. Walter, U. S. Atty., Shreveport, La., for U. S.
    Lloyd N. Cutler, David S. Tatel, Washington, D. C., Herman Wilson, Jackson, Miss., for amicus curiae — Lawyers Committee for Civil Rights, etc.
    Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
   BELL, Circuit Judge:

This appeal arises out of suits filed to set aside the results of a Democratic primary election on the basis of discriminatory conduct against black voters by the Voter Registrar. The primary was conducted on April 4, 1970 in Tallulah, Louisiana, for Mayor, Town Marshall, Members of the Board of Aldermen, and Members of the Democratic Executive Committee. The black candidate for the office of Town Marshall was successful, as was one of the black candidates for the three positions on the Democratic Executive Committee. All other races were won by whites with margins ranging from 24 to 140 votes.

The discrimination occurred within a thirty day period immediately prior to the election. On September 13, 1972, the district court enjoined defendants from engaging in further discriminatory practices, voided the primary election results, except as to the office of Town Marshall, and ordered that a new primary election be held with the voters limited to those persons eligible to vote in the 1970 primary. Toney v. White, W.D.La., 1972, 348 F.Supp. 188.

A panel of this court affirmed on March 19, 1973 as to the prospective in-junctive relief but reversed that portion of the judgment which voided the election and ordered the primary races to be rerun. Toney v. White, 5 Cir., 1973, 476 F.2d 203. On June 1, 1973 the court, on motion of plaintiffs, determined to rehear the matter en banc. It was heard on October 17, 1973, and, after due consideration, we vacate that portion of the panel decision which reversed the district court. The result is that the district court judgment voiding the primary election as to certain races and ordering those primary races to be rerun is reinstated but with the modification, due to the passage of time, that the next regular primary election, which under the Louisiana statutes will be held in March, 1974, be substituted for the special election ordered by the district court.

The panel decision rests on the two-pronged approach that (1) the discrimination in question was not “gross, spectacular [and] completely indefensible”, and (2) that it did not appear that no effective judicial remedy was available to plaintiffs prior to the holding of the election, 476 F.2d at 209, citing Bell v. Southwell, 5 Cir., 1967, 376 F.2d 659, 664.

Reference is made to the prior opinions, 348 F.Supp. 188, and 476 F.2d 203, for a full statement of the facts. It is sufficient for our purposes to set out the operative facts. The racial discrimination in issue consisted of the Registrar purging the voter rolls in a manner directed at black voters but not at white voters. This discrimination was compounded by the use of purging procedures which were not consistent with Louisiana law from the standpoint of notice and opportunity of the registrant to be reinstated. In addition, the list of those voting by absentee ballot, mainly white voters, was not purged as required by Louisiana law. In connection with this latter fact, the district court made the well supported finding that the results of the election could well have depended on the absentee vote and thus on the failure to purge this list.

The pertinent findings and conclusions of the district court are as follows:

(Findings of Fact)
“22. We find that the record does not reveal that the acts of commission and omission of the Registrar were conducted for the specific purpose of diminishing the number and efficacy of black votes and inflating the number of white votes.”
(Conclusions of Law)
“8. Notwithstanding the fact that the record does not reveal any calculated racially motivated purpose for the acts and omissions of the Registrar, the acts and practices of this defendant constitute an unlawful deprivation of the right of qualified Negro voters to vote regardless of race or color as provided by the Fifteenth Amendment and the Voting Rights Act of 1965, especially in light of the State Attorney General’s opinion as to the timing of these acts and practices.”
“10. Where, as here, there has been a history of racial discrimination in the voting process, and a public official applies or neglects to apply the laws pertaining to the purging of voter rolls contrary to the spirit of Louisiana law, the result of which is that a substantial number of Negroes are purged and few whites are purged, when by proper application of the law fewer Negroes would have been purged and more whites would have been purged, we conclude here that Negroes have been discriminated against in the administration of the voting process in violation of the Fifteenth Amendment and of Sections 2 and 11(a) of the Voting Rights Act of 1965 and 42 U.S.C. § 1971(a).”

It was the view of the district court that the remedy of voiding an election was appropriate regardless of the good faith intentions of the election officials once discrimination in fact was proven in the administration of the election process. The election was thereupon voided except as to the office of Town Marshall.

There are three approaches which would lead to affirming the district court’s action in voiding the election. One would be to approve the view of the court that a new election was required, ipso facto, regardless of good faith on the part of the Voter Registrar, once the proof established, as it did, that the voting process was infected with racial discrimination. We pretermit examining this broad rule which does not appear to have a nexus to the substantiality of the discrimination or its effect on the results of the election.

Another would be to examine the finding and conclusion of the district court that the acts of commission and omission of the Voter Registrar were not ra-daily motivated. Finding of Fact 22 and Conclusion of Law 8, supra. Such an examination would be for the purpose of determining the validity of the first premise of the panel decision, that there was no gross discrimination. We also pretermit this approach, given our view, hereinafter set out, that the second premise of the panel decision, i.e., that plaintiffs were not diligent in seeking available pre-election judicial relief, is without adequate foundation. We thus proceed to an examination of this premise of the panel decision.

We reach our decision in the frame of reference of the decided eases involving the question whether to void an election in the face of a finding of racial discrimination in the voting and election process. The first category of cases is represented by Hamer v. Campbell, 5 Cir., 1966, 358 F.2d 215, where pre-election injunctive relief was sought and post-election relief in the form of voiding the election was ordered on the basis that pre-election relief should have been granted. The court said:

“This action does not mean that we necessarily would set aside every election in which a substantial number of citizens have been denied the right to vote. This is not a case where an election is challenged for the first time after it is held. Here appellants attempted to enjoin the election, and failing where they should have succeeded, they were diligent in seeking to have this failure rectified by our reversal prior to the election.” 358 F.2d at 222.

A new election was also ordered in Hadnott v. Amos, 1969, 394 U.S. 358, 89 S.Ct. 1101, 22 L.Ed.2d 336, where pre-election relief was sought and the Supreme Court reversed the decision of the district court which had denied pre-election relief. Hadnott v. Amos, M.D.Ala., 1968, 295 F.Supp. 1003.

Hadnott v. Amos involved the right of black citizens to be candidates. Hamer involved the right of black citizens to become voters and to be candidates. The facts demonstrate in each case that the discrimination could have affected the results of the elections. There is no finding in either ease of an intent to discriminate or of gross or spectacular discrimination. They simply turn on affording post-election relief in the form of a new election where error was found in the denial of pre-election relief sought.

Bell v. Southwell, 5 Cir., 1967, 376 F. 2d 659, is a case of a wholly different type. There the racial discrimination occurred on election day and in the method of holding the election. There was no opportunity to seek pre-election relief, and it was likely that the result of the election would have been the same notwithstanding the discrimination. The court fashioned a new rule in these circumstances: A new election if the racial discrimination was gross, spectacular and wholly indefensible. 376 F.2d at 664.

The holding of Bell v. Southwell is to be compared with Hamer v. Ely, 5 Cir., 1969, 410 F.2d 152, where we affirmed the refusal of the district court to set aside an election. We agreed that the discrimination did not reach the level of those serious violations of voting rights where a state election should be voided, citing Bell v. Southwell, 410 F.2d at 156.

The principle of requiring diligence is seen in McGill v. Ryals, M.D.Ala., 1966, 253 F.Supp. 374, appeal dism’d, 385 U.S. 19, 87 S.Ct. 212, 17 L.Ed.2d 17, in which a new election was denied where no particular election was attacked, where the complaints of racial discrimination were of long standing and where judicial relief had not been sought prior to the election.

The requirement of diligence was also in issue in Smith v. Paris, M.D.Ala., 1966, 257 F.Supp. 901, where the district court found racial discrimination in an election but refused to set aside the election because plaintiffs had known of the discrimination for six or seven weeks. They had waited until the election was in progress before seeking judicial relief. Hamer v. Campbell, supra, was cited as the basis for requiring diligence. On appeal, however, this court modified the district court order to restrict the terms of office involved to two rather than four years by requiring new elections at the next regular elections which were to be held in 1968. Smith v. Paris, 5 Cir., 1967, 386 F.2d 979. The 1968 elections were thereafter set aside on a petition of the United States filed five days before the election. The district court found that the United States was diligent when the question was considered in light of the defendant’s failure to have corrected the system after the district court’s 1966 finding of unconstitutionality. United States v. Democratic Executive Committee, M.D.Ala., 1968, 288 F.Supp. 943.

The instant case does not fit the mold of any one of these eases. It does not fit Bell v. Southwell because of the findings of the district court of no racial motive, a finding which we, as stated, need not consider.

It does not fit within the teaching of Hadnott v. Amos, and Hamer v. Campbell because of the missing element of failure to seek pre-election judicial relief. It clearly contains the other element of those cases: racial discrimination which might have affected the election results.

This leaves then the question of what diligence in seeking pre-election judicial relief was required of plaintiffs under the circumstances. Upon reflection, we conclude that the panel requirement unduly freighted the Fifteenth Amendment right to equal treatment in the election process. As the Supreme Court said in Hadnott v. Amos in the Fifteenth Amendment context of disparate treatment on the grounds of race: “Unequal application of the same law to different racial groups has an especially invidious connotation.” 394 U.S. at 364, 89 S.Ct. at 1104, 22 L.Ed.2d at 341.

The right to vote on an equal basis with other citizens is a fundamental right in a free society; indeed, in any viable form of representative government. It is preservative of all governmental rights. Yick Wo v. Hopkins, 1886, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220, 226. “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Harman v. Forssenius, 1965, 380 U.S. 528, 537, 85 S.Ct. 1177, 1183, 14 L.Ed.2d 50, 57 (poll tax).

We agree with the panel that the law imposes the duty on parties having grievances based on discriminatory practices to bring the grievances forward for pre-election adjudication. We also agree that the failure to require prompt pre-election action in such circumstances as a prerequisite to post-election relief may permit, if not encourage, parties who could raise a claim “to lay by and gamble upon receiving a favorable decision of the electorate” and then, upon losing, seek to undo the ballot results in a court action. 476 F.2d at 209.

This reasoning is sound in the abstract but it must be applied to the facts and circumstances obtaining in the particular case. Here we have a gray area where the discrimination, even if known before the election, was discovered at a late hour.

The district court made no finding on the availability of pre-election judicial relief. The failure of plaintiffs to seek such relief was not asserted as a defense —it was raised for the first time in this court. Ordinarily we would remand for findings of fact but the record here makes it plain that there is no merit in this defense and remand is not warranted. The burden to establish such a defense would be on the Voter Registrar and we turn to the undisputed facts to test the merit of this belated defense.

It was the Registrar who was charged by law, state and federal, with administering the voter registration process. It was the Registrar’s duty to discharge her official duties for the benefit of the electorate and in a lawful manner. Any error of commission or omission on the part of the Registrar giving rise to racial discrimination would result in the loss of constitutional rights to the black voters wholly through the acts or fault of the Registrar. To excuse such conduct on the part of a public official would tend to exalt misfeasance or nonfeasance. On the other hand, citizens having grievances may not lay by to see how the election will turn out before complaining. Given these alternatives, we hold that there is a heavy burden on the Voter Registrar to show that there was a deliberate bypass of pre-election judicial relief.

The facts here make it appear as a matter of law that there was no such bypass. The racially discriminatory purge, for'failure to vote and for failure to report changes of address, began only thirty days before the election. While the notice procedures were inadequate, they nonetheless extended for several days the time required to complete the process. Further, the record does not show that the other discrimination, the failure to purge the absentee voter roll, was known at all to plaintiffs prior to the election. Indeed, the position of the Voter Registrar was that she did not know that she was required by law to purge this list.

We must have in mind that it would have been necessary for the private plaintiffs to obtain counsel or the assistance of the Department of Justice and, in either event, it would have been necessary for counsel to investigate the facts before filing suit. Here an investigation would have entailed a study of all records having to do with purging, or the absence of purging, for failure to vote or to report changes in address. An investigation would have required a study of absentee voting records for recent elections to determine whether the rolls were purged, under Louisiana law, of those who had voted only by absentee ballot and had failed to show good cause for such continued absentee voting. La.R.S. 18: § 1080. It would have been exceedingly difficult for counsel to have had sufficient facts in hand prior to the election to warrant signature of counsel certifying, under Rule 11, F.R.Civ.P., that there was good ground to support claims made in the complaint.

The suit of private plaintiffs was filed promptly after the election, as was the suit of the Department of Justice. Given the facts, we think that each suit was filed with diligence.

We must take care not to hamstring the administration of the Voting Rights Act or to deny rights under the Fifteenth Amendment on a standard less stringent than that of requiring public officials in charge of voting registration and the conduct of elections to show by clear and convincing proof that there was in fact a deliberate bypass of a pre-election judicial remedy. The record precludes such a showing on the part of the Voter Registrar in this case. This leaves a case of discrimination based on race and of such a substantial nature as possibly to have affected the outcome of the election. Thus the district court did not err in setting aside the primary election.

We are advised that the next regular election in Tallulah begins with a primary on March 23, 1974. There has been a lapse of more than one year since the district court entered its order, and only five months remain before the next primary election. In these circumstances, given both the expense of holding a special election and the short terms of office which would remain between the special election and the normal expiration of the present terms of office in July, 1974, we conclude that it is appropriate to modify the order of the district court to permit the 1974 regular elections, primary and otherwise, to be substituted for the special elections required under that order.

As modified, the judgment of the district court is

Affirmed.

COLEMAN, Circuit Judge

(concurring in the result):

Even for an election controversy, this is an unusual case. The District Court held the municipal primary election in Tallulah, Louisiana, to have been a lawful one as to the nominee for Town Marshal but void as to all nominees for other offices. This on its face is a non se-quitur. I assume the en banc Court did not mean to affirm that aspect of the judgment below.

Leaving that aside, I do not see that the en banc opinion does any harm to basic legal principles. Most assuredly it reaches a harmless result, so I concur in the result.

The opinion scrupulously avoids any appearance of denigrating the unassailable principle that pre-election grievances allegedly fatal to the validity of an entire election must promptly be asserted if they are to furnish the catalyst by which that election is to be set aside. Any other rule would make a shambles of the highly esteemed right of franchise and would consequently reduce the lofty language of Yick Wo v. Hopkins to a cynicism. So, I heartly agree with the declaration of the en banc opinion that “citizens having grievances may not lay by to see how the election will turn out before complaining”. At least, it is fortunate that this principle is not to be sacrificed upon the altar of political dissensions existing in one small city in a six state Circuit.

It appears that the sole precedential impact of the decision is to be found in its elaboration upon where the burden of proof lies in cases involving a “lay by”. I doubt that the record appropriately raises this question for our review. If it does, then I would hold that a “lay by” clearly appears from the evidence. It was an undisputable fact that the Registrar pursued a purge not permitted by Louisiana law. Notice appeared in the public press. No more than minimal diligence could have been required to obtain an order in either the state or the federal courts nullifying a purge which was per se illegal. It is equally clear that the objectors waited until they could see how the election came out. Losing by a very narrow margin, they then rushed, as usual, to the federal courthouse. Such maneuvers ought to be discouraged.

In any event, the en banc opinion concludes with the only sensible solution reasonably available at the eleventh hour and fifty-ninth minute — a solution which inevitably would have occurred by operation of law if this case had never been docketed.

Therefore, I concur in the result.

GEE, Circuit Judge

(concurring in the result):

I concur in the result reached by the Court but would go by another way. To me, the record presents overwhelming evidence of a selective application of state law, done out of time and when relief could not be had, to deprive sufficient Negro voters of their franchises to have affected the election results. I find this gross, spectacular and completely indefensible and would proceed upon that established ground. I also agree that, the next regular election impending so nearly, a special election should not now be called in this troubled parish to fill terms which could not exceed a few months.

The majority opinion is cogent and persuasive, yet it seems to me necessarily to rest upon reasoning that, though no intent to discriminate existed, and although the state laws applied are colorblind and valid, yet where their application produces an unequal disenfranchisement between the races, the Constitution is offended. It is true, as the opinion notes, that the purge of voter lists was carried out at an illegal time, but I do not read this as significant to the rationale of the majority opinion.

In such a context as this, we are on sound footing when we admit extreme statistics as evidence of intent to discriminate. But where, as here, we leave undisturbed a specific finding of want of discriminatory intent and proceed on the effect alone of what was done, I fear we are planting dragon’s teeth. For the most punctiliously even-handed and col- or-blind culling of voter lists may — indeed very nearly must — have a disproportionate effect on one segment or another of the electorate. I can find no footing on this logical precipice except at the top or at the bottom; either a discriminatory intent was present or it was not. If it was not, as the majority says is the case here, I am unable to grasp the constitutional offense. It is well to say, and noble, too, that thoughtlessness can be as disastrous to private rights as willful schemes. But the Constitution does not adopt all noble thoughts, and I am not persuaded that it has adopted the concept that unintentional “discrimination” is offensive. Discrimination — in the sense of disproportionate effect — there will be. What we seek is that, when it occurs, it will be just that: unintentional.

CLARK, Circuit Judge, with whom SIMPSON, Circuit Judge, joins,

dissenting:

The en banc opinion “voids” this election under a novel and, I submit, unsound rule. The court holds that in a post-election suit involving unintentional pre-ballot activity which has a disappro-priate racial effect, the election may be set aside unless the defendant Voter Registrar meets “a heavy burden” of showing that plaintiff knowingly, deliberately by-passed pre-election judicial relief. I continue to opt for the more restrictive rule applied by the panel— where a party challenges the pre-election activity of registration personnel, the plaintiff must show that such practices were not known to him, or discoverable with reasonable diligence, in time to have sought relief before the vote was taken. In addition to placing the burden of proof on the party who possesses the facts, the panel rule reinforces the solemnity of the electoral process by cutting off ex post facto attacks from those chargeable with constructive knowledge of inadvertences or errors. As the con-eluding paragraph of Judge Gee’s concurrence aptly demonstrates, application of the anomalous principle of “unintentional discrimination” is particularly paradoxical in election cases. Certainly its use to require elections to be rerun should be restricted to the smallest ambit practicable.

Furthermore, I cannot concur in the en banc opinion on the facts either. The record in this case simply will not support any other determination than that the plaintiffs well knew the essential facts which formed the basis for their belated complaint long enough before election was held to have permitted recourse to the courts without waiting to see if the returns from the polls were to plaintiffs' liking. The district court and panel opinions make it abundantly plain that everything done by the Registrar, Mrs. Bishop, was suspect by both white and black citizens of Tallulah because of the town’s long history of racial controversy concerning voting. Her publication of the purge notice containing the names of 130 blacks and 11 whites was an immediately recognized red flag which plaintiffs sought to investigate. Indeed, the notice was improper on its face under Louisiana law. Her office was open for reinstatement on only four of the ten days required. Counsel for private plaintiffs advised this court on oral argument that when he attempted to view the registration books he was physically ejected from Mrs. Bishop’s office. Taken together, these facts, which were known to the plaintiffs more than three weeks before the election, certainly formed a sufficient predicate for legal action. That still other improprieties regarding absentee balloting were later discovered is cumulative and in nowise detract from a determination that judicial assistance could have been invoked before the voting took place.

With regard that the court cannot discern the hazard to the practical functioning of the political process created by the sweeping rule it has adopted, I respectfully dissent.

      . The complaint of private plaintiffs was filed on May 4, 1970. The complaint of the United States was filed on June 8, 1970 pursuant to the Voting Rights Act of 1965. See 42 USCA, §§ 1971(a) and (c), 1973 and 1973j(d).

      . The panel decision points out that there was no appeal by plaintiffs from the finding of the district court that the record did not establish racial motivation on the part of the Voter Registrar. ■

      . The Voter Registrar here was under a permanent and specific injunction not to discriminate against voters on the basis of race, which injunction was entered at the specific direction of this court. United States v. Ward, W.D.La., 1963, 222 F.Supp. 617, rev’d, 349 F.2d 795 (5 Cir. 1965) modified on reh., 352 F.2d 329 (5 Cir. 1965).

      . In view of this modification we do not find it necessary to consider the action of the district court in bifurcating the primary election by holding it null and void as to all offices save that of Town Marshall, which was won by a black. Cf. Perkins v. Matthews, S.D.Miss., 1971, 386 F.Supp. 6. The inexplicability of this holding is that a black also won one of the other races.

      . See the discussion of Hadnott v. Amos, 394 U.S. 358, 89 S.Ct. 1101, 22 L.Ed.2d 336 (1969) and United States v. The Democratic Executive Committee of Barbour County, 288 F.Supp. 943 (M.D.Ala.1968), in the panel opinion herein. 476 F.2d, at 210-211.

      . All but one member of this court affirm the trial judge’s determination that intentional or gross discrimination is not involved here; neither is this case concerned with incidents occurring during the voting process. We are well committed to the proposition that wrongs of both these sorts may be attacked after an election is held without regard to any bypass or election of remedies rule.


author: CLARK, Circuit Judge:

text:
    Ruby GLOVER (formerly Ruby Andrews) et al., Plaintiffs-Appellees, v. The UNITED STATES of America, Defendant-Appellant.
    No. 72-3546.
    United States Court of Appeals, Fifth Circuit.
    Dec. 13, 1973.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Tax Div., U. S. Dept, of Justice, Washington, D. C., Frank D. McCown, U. S. Atty., Fort Worth, Tex., Eugene G. Sayre, Atty., Tax Div., Dept, of Justice, Dallas, Tex., Michael D. Cropper, Atty., Grant W. Wiprud, Washington, D. C., for defendant-appellant.

      Fred A. Sanders, Robert S. Newkirk, Fort Worth, Tex., for plaintiff-appel-lee.
    Before THORNBERRY, SIMPSON and CLARK, Circuit Judges.
   CLARK, Circuit Judge:

In the light of present precedent, the government concedes it failed to carry its evidentiary burden in this tax case but would have us remand this cause to allow it another chance to supply requisite proof. Finding no change in the law since it defaulted the opportunity to make its case in the trial court, we decline to authorize a second go round.

The ABC transaction which forms the setting for this case, though gone, can-not yet be forgotten. Since the operative facts occurred before Congress sounded the death knell for this once common oil and gas transaction tax device, they must be examined in light of the pre-1969 law. The taxpayers — the B party — acquired oil and gas working interests subject to a production payment. Fort Worth Enterprises, Inc. (Enterprises) — the C party — purchased this production payment with a bank loan which was secured by the payment. Sol Brachman, the father of some of the taxpayers, successively furnished the bank with three takeout letters guaranteeing repayment of substantial portions of the then outstanding loan balance to Enterprises. The guarantee provided that Brachman would be subrogated to the bank’s rights against Enterprises should he have to make good on the loan. The question presented on the merits was whether, under pre-1969 law, the holder of the working interest (taxpayers) or the holder of the production payment (Enterprises) had the taxable and depletable economic interest in the income allocable to the production payment. The trial court held for taxpayers, determining that Enterprises possessed sufficient economic substance to have the requisite economic interest in the income.

Our October 8, 1971 decision, Holbrook v. Commissioner of Internal Revenue, 450 F.2d 134, rehearing en banc denied December 20, 1971, 451 F.2d 1350, held that a guaranty of the C party’s purchase money debt does not in itself require a finding that the holder of the production payment does not bear the ultimate risk of non-production. Rather, the purchaser of the production interest is deemed to have the taxable and depletable economic interest in the income allocable to the production payment if the guarantor has a right of subrogation against the production interest purchaser and if that subrogation right has financial substance. Our decision in Holbrook became final well before the trial court’s opinion here was entered, May 15, 1972. Judgments were entered August 2, 1972. In the case at bar it should be noted that the government does not dispute the fact that the guarantor, Brachman, had a right of subrogation against Enterprises for any losses he might incur; rather, it asserts that this case should be remanded to afford it a second opportunity to establish that the right of subrogation lacked economic substance.

The government directs our attention to Producers Supply and Tool Co. v. United States, 465 F.2d 787 (5th Cir. 1972), which was handed down after the instant case was on appeal. Producers Supply initially involved the same C party, Enterprises, the same guarantor (Sol Brachman), and virtually identical proof as to Enterprises’ assets with respect to closely related taxable years that we have here. However in Producers Supply, contrary to the trial result here, the lower court found that Enterprises was a “dummy” corporation lacking in economic substance. This finding was based solely on evidence of the corporation’s book value introduced by the Commissioner. On the appeal of Producers Supply this court held that such proof of book value, standing alone, was insufficient to carry the government’s burden “for it is beyond question that book value simply does not reflect the true value of any business concern.” However, because Holbrook was reported after the district court judgment in Producers Supply was appealed, this court concluded that the government should be given another opportunity to carry its Hol-brook-announced burden of establishing that the right of subrogation lacked economic substance.

The government argues that just as Holbrook justified a further opportunity to make out its case in Producers Supply, so Producers Supply indicates that the same result should obtain on this appeal. Not so. Far from being the proverbial gray mare, Producers Supply is a horse of quite a different color. The trial court proceedings in Producers Supply preceded our holdings in Hol-brook. The government does not here dispute that it knew of this court’s decision in Holbrook months before the trial court’s decision in this case. In spite of being clearly advised that the burden of proof on this issue belonged squarely to it, the government made no attempt to place any additional evidence before the trial court as to Enterprises’ financial condition, either by a motion to reopen the case or by a motion for a new trial. Having thus elected to stand on its evidence as to book value even after the trial court found it insufficient, the government’s untimely request that it be allowed an additional opportunity to supplement its case comes too late.

The proposition that proof of book value alone is insufficient to establish true corporate fiscal substance certainly did not originate with Producers Supply. The choice by the government to let its case stand on less than the best evidence it could adduce in the face of a ruling by the district court that its proof was insufficient, if a mistake, was not a mistake caused by any change in or new pronouncement of law. Producers Supply merely affirmed that the trial court in the case at bar was right, not wrong. The government has been accorded its day in court. Just as any private citizen, it is only entitled, to one. The decision of the district court is

Affirmed.

      . 26 Ü.S.C. § 636, added by the Tax Reform Act of 1969.

      . Taxpayers Malcolm Brachman and Marilyn Brachman Hoffman are brother and sister. Taxpayers Milton and Herman Lurie are brothers, and are third cousins of Malcolm Brachman and Marilyn Brachman. The Malcolm Brachman Trust and the Marilyn Brachman Trust were created on July 16, 1936, by and between Sol Brachman and his wife, Etta K. Brachman, Settlors, and Ruby Andrews, Trustee. Sol Brachman and his wife are the parents of Malcolm Brachman and Marilyn Brachman Hoffman. The Marilyn Brachman Trust terminated on January 31, 1962, and its assets were distributed to Marilyn as sole beneficiary.

      . In light of our disposition in this case, we need not decide what may be the effect, if any, of the fact that the debt was guaranteed by Sol Brachman and not by the taxpayers. Similarly, we do not reach the effect which the prospective actual value of the oil payment may have had on the legal issues raised.

      . 465 F.2d at 792.

      . Judge Goldberg viewed the matter as one altogether closed.
      . . . it is beyond question that book value simply does not reflect the true value of any business concern. See, e. g., A. Robichek & S. Myers, Optimal Financing Decisions 130-131 (1965) ; E. Solomon, Theory of Financial Management 39-45 (1963).
      [ 465 F.2d at 792 ]


author: HAYS, Circuit Judge:

text:
    Michael and Cynthia PRIDE, minors, by their mother and next friend Bulena Pride, et al., Plaintiffs-Appellants, v. The COMMUNITY SCHOOL BOARD OF BROOKLYN, NEW YORK SCHOOL DISTRICT #18, a body corporate, et al., Defendants-Appellees.
    No. 293, Docket 73-2223.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 3, 1973.
    Decided Nov. 21, 1973.

      Doron Gopstein, New York City (Norman Redlich, Corp. Counsel of the City of New York, and Michael B. Rosen, Brooklyn, N. Y., on the brief), for defendants-appellees.
    James I. Meyerson, N.A.A.C.P., New York City (Nathaniel R. Jones, N.A.A. C.P., New York City, I. Frederick Shot-kin and Delson & Gordon, New York City, on the brief), for plaintiffs-appellants.
    Before HAYS, FEINBERG and TIMBERS, Circuit Judges.
   HAYS, Circuit Judge:

This is our second encounter with the dispute concerning the placement in New York City public schools of children from the Tilden Houses of Brooklyn. In this phase of the litigation plaintiffs moved for a preliminary injunction against an order by the City Board of Education assigning Tilden House children first entering public school to districts other than District 18. The United States District Court for the Eastern District of New York denied the motion. The court found that plaintiffs had failed to show probability of success and irreparable harm or that the balance of hardships weighed decidedly in their favor. We affirm.

I. THE FACTS

The Tilden Houses are located in the predominantly black and Puerto Rican section of Brooklyn known as Brownsville. To the south and southeast of Brownsville lie the racially mixed neigh-bórhood of East Flatbush and the predominantly white neighborhood of Can-arsie. In 1962 the Board of Education, in an effort to promote integration, rezoned the Tilden House children from the neighborhood Brownsville schools, which subsequently became part of District 23, into schools in East Flatbush, which has become part of District 18.

In 1970 much of the authority for governing the elementary and junior high schools of New York City was transferred from the City Board of Education to Community District School Boards pursuant to New York’s School Decentralization Law (New York Education Law, Article 52-A, § 2590 et seq. [McKinney’s 1970 Consol.Laws, c. 820]).

In May, 1971 the Community School Boards of Districts 18 and 23 entered into an agreement whereby Tilden House children would be zoned into their neighborhood schools in District 23 for the school year beginning September 1971. School Chancellor Scribner rejected this agreement, and the City Board of Education and the Commissioner of Education sustained the Chancellor’s decision.

Further difficulties developed when the District 18 Community Board refused to assign Tilden House children to Junior High School 285, the junior high school in District 18 which Tilden House children had previously attended. Chancellor Scribner again reversed the Community Board and ordered it “to assign the Tilden Housing children at the junior high school level either to J-285 . . . and/or to other schools in your district where integrated education would be possible.” The Community Board refused to follow this directive, and Chancellor Scribner superseded the Community Board and ordered that the Tilden House children be given the option of attending Junior High Schools 285, 211 or 68, all within District 18. He also ordered the Community Board to devise a plan designed “ . more nearly to equalize integration in these schools starting with the 1973-74 school year.”

In January, 1973 the Community Board presented its plan. At this time the ethnic compositions of the three junior high schools were as follows:

School Others (white) Black and Puerto Rican

J.H.S. 68 98% 2%

J.H.S. 211 66% 34%

J.H.S. 285 42% 58%

The three schools are in the Canarsie section of District 18. JHS 285 is closest to East Flatbush, while JHS 68 is furthest from East Flatbush and Brownsville. The Community Board projected the following figures for 1975 if the existing zoning continued:

School Others (white) Black and Puerto Bican

J.H.S. 68 85% 15%

J.H.S. 211 70% 30%

J.H.S. 285 50% 50%

The Community Board’s plan provided for zoning the Tilden House children into other districts, though it did not indicate which districts.

In January, 1973 Chancellor Scribner accepted the Community Board’s plan with an amendment providing that the Tilden House children would continue to attend junior high schools in District 18, subject to future review in light of changing population patterns.

The Community Board appealed the decision of the Chancellor to the City Board of Education. The City Board conducted hearings and on March 30, 1973 issued its decision holding that neither the Community Board’s plan nor the Chancellor’s plan fully considered that:

“[m]assive ethnic changes are taking place in many of the elementary schools, particularly those into which the Tilden House pupils are zoned. It is clear that the residential changes in these school zones have resulted in the ‘other’ enrollment becoming the minority. Obviously the changes at the elementary school level have major impact on the junior high schools which are the subject of this appeal.
“This Board finds that neither the plan presented by Community School Board 18 nor the . . . modification of this plan by the Chancellor fully takes these changes into account. The policy of this Board is and continues to be to encourage quality integrated education to the extent feasible.
“The use of children as pawns in boycots and other pressure tactics is demagogic and irresponsible and can have no influence whatever on the decision of the Board of Education. On the other hand, the Board feels that it would be just as irresponsible and demagogic to continue to send out of district minority group youngsters indefinitely into schools with rapidly growing minority registers under the guise of promoting quality integrated education.”
The City Board ordered that:
“commencing in September 1973 Til-den House children newly entering the first grade who would have entered District 18 schools are to be zoned and permitted options to attend schools in other districts. . . . ”

Acting Chancellor Irving Anker later implemented the order by directing that newly entering Tilden House children be zoned into Districts 20, 21 and 22, with parents of each child to select among the designated schools within such districts.

The racial mix and utilization levels of the schools in Districts 18, 20, 21 and 22 are as follows:

Elementary Black Puerto Other Rican (White) Utilization

District 20 9% 11% 78% 73%

District 21 16% 11% 72% 73%

District 22 16% 3% 80% 78%

District 18 35% 6% 58% 89%

Junior High School

District 20 14% 13% 72% 100%

District 21 16% 9% 74% 87%

District 22 15% 1% 82% 101%

District 18 47% 7% 45% 105%

In May, 1973 the Chancellor submitted a list of “designated” schools within Districts 20, 21 and 22 which the Tilden House children were eligible to attend. Of the 37 designated schools all have an “other” enrollment of over 60%, 36 have an “other” enrollment of over 80%, and 12 have an “other” enrollment of over 90%. The five elementary schools in District 18 which the Tilden House children had attended prior to the March 30 order had shown the following ethnic compositions:

Black Puerto Rican Other

PS 135 57.9% 11.4% 30.7%

PS 244 49.9 11.4 38.7

PS 235 57.7 11.2 31.1

PS 233 53.2 12.1 34.7

PS 268 73.6 7.8 18.6

Within District 18 seven elementary schools had “other” enrollments over 60%; in three of these the “other” enrollment was over 90%.

II. THE PRELIMINARY INJUNCTION STANDARD

In our earlier opinion in this case [Pride /] this court stated as follows the standard by which the district court must be guided in deciding upon a motion for a preliminary injunction:

“We repeatedly have emphasized the heavy burden on a party seeking the extraordinary remedy of preliminary injunctive relief. The standard that has evolved is that the moving party ‘assume [s] the burden of demonstrating either a combination of probable success and the possibility of irreparable injury or that [it has] raised serious questions going to the merits and that the balance of hardships [tips] sharply in [its] favor.’ Stark v. New York Stock Exchange, 466 F.2d 743, 744 (2 Cir. 1972) (emphasis added); Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319, 323 (2 Cir.), cert. denied, 394 U.S. 999 [,89 S.Ct. 1595, 22 L.Ed.2d 777] (1969). We find that standard to be particularly appropriate here where there is a strong public interest in the outcome of the dispute. See, e. g., Gulf & Western Industries, Inc. v. Great Atlantic & Pacific Tea Co., 476 F.2d 687, 692-693, 698-699 (2 Cir. 1973) ; Exxon Corp. v. City of New York, 480 F.2d 460 (2 Cir. 1973).
“With this standard in mind, we turn to an examination of the evidence adduced at the hearing below, recognizing that in reviewing the denial of a motion for a preliminary injunction our role is limited. ‘A clear abuse of discretion . . . must be shown to an appellate court in order to obtain a reversal of the trial court’s denial of temporary injunctive relief.’ Checker Motors Corp. v. Chrysler Corp., supra, 405 F.2d at 323; Dino de Laurentiis Cinematografica, S.p.A. v. D-150, Inc., 366 F.2d 373, 374-375 (2 Cir. 1966).”

482 F.2d at 264 (footnote omitted).

III. PROBABILITY OF SUCCESS

The district court considered both the intent and the effect of the March 30 plan of the City Board and found it not discriminatory in either respect. We agree.

(A) Discriminatory Intent

Absence of a discriminatory intent does not necessarily bar a successful equal protection action. Wright v. Council of the City of Emporia, 407 U.S. 451, 461-462, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972); Chance v. Board of Examiners, 458 F.2d 1167, 1175-1176 (2d Cir. 1972). On the other hand proof of discriminatory intent does not by itself render an act violative of equal protection. Palmer v. Thompson, 403 U.S. 217, 224-225, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971). This court recognized the limited significance of intent or motive in its earlier opinion in this case. Pride I, 482 F.2d at 265-267. But a discriminatory motive “may add to the discriminatory effect of the action by intensifying the stigma of implied racial inferiority.” Wright v. Council of the City of Emporia, 407 U.S. at 461, 92 S.Ct. at 2203. Where a discriminatory intent exists a court may scrutinize more carefully the proffered justification for the allegedly discriminatory act. Id.; cf. Green v. County School Board, 391 U.S. 430, 439, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). Moreover, the motivation for a particular act may be part of the “historical context” within which we must examine the act itself. Reitman v. Mulkey, 387 U.S. 369, 373, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). Thus the district court acted properly in receiving evidence on discriminatory intent without considering the issue controlling.

Appellants have emphasized here and in the court below that the City Board reviewed the decision of the Chancellor while under intense pressure from the Community Board of District 18 and from the white residents of Canarsie. They claim this demonstrates that the City Board capitulated to this pressure in reversing the Chancellor and that the March 30 order therefore resulted from an intent to discriminate. The plaintiffs’ evidence on this point consists primarily of a showing that the members of the Gity Board were aware of the racial animosity in District 18. Rarely can a plaintiff expect to find more direct evidence in a case like this: even if the Board members were infected by prejudice they would hardly be inclined to announce the fact publicly. We are bound to view the act in light of its “historical context.” Reitman v. Mulkey, supra. But the awareness of the Board members of conditions in District 18 and their subsequent decision to zone the Tilden House children out of District 18 do not by themselves conclusively prove discriminatory intent. Other reasons, non-discriminatory in nature, could have persuaded the Board. Defendants introduced evidence, including the testimony of Board President Joseph Monserrat and the March 30 statement by the Board (see page 429, supra), that racial animosity did not sway the Board’s decision.

The district court faced an issue of fact. It resolved the issue by finding that the City Board “was unaffected by the local racial prejudice of the residents of District 18,” that the plaintiffs had failed to show intent to segregate, and indeed that the plan showed affirmatively an intent to integrate and that the object of the plan was

“to slow down or reverse the history of the increase of blacks and minority groups in the schools located in the East Flatbush section of District 18 for the purpose of establishing a stable racial mix in said schools.”

In light of the heavy burden of proof borne by a party seeking a preliminary injunction and of the fact that the district court’s conclusions of fact depended in large part on the evaluation of the credibility of viva voce testimony, we cannot say that these conclusions were clearly erroneous. F.R.Civ.P. 52(a).

(B) Discriminatory Effect

As indicated above, the finding of an absence of discriminatory intent is not fatal to plaintiffs’ action. Plaintiffs can still prevail if they can show that the March 30 order had the effect of discriminating against them in violation of the equal protection clause. In this case, however, the relevant facts showed no discriminatory effect.

A comparison of the ethnic compositions of District 18 and Districts 20, 21 and 22, see tables supra, shows that the former has a lower percentage of white students. In particular, the East Flat-bush schools which the Tilden House children previously attended have a much lower proportion of white enrollment than Districts 20, 21 and 22. Moreover, at the time the City Board acted the East Flatbush schools were rapidly becoming more extensively segregated. Thus, in numerical terms the March 30 plan offered the Tilden House children schooling in a more integrated setting.

Numbers alone do not determine whether an act violates equal protection. In Pride I this court considered an act reassigning several Tilden House children from a school with an “other” enrollment of 46% to one with an “other” enrollment of 36%. We upheld the plan on the ground that the Community Board had acted to balance the sizes of first grade classes and that the plan effectuated the objective because the transferee school was less utilized than the transferor school. Pride I 482 F.2d at 267-269. In the instant ease Districts 20, 21 and 22 are less utilized than District 18. See tables supra. This would seem to confirm that the opportunities of the Tilden House children for quality integrated education will not deteriorate, and may improve, under the March 30 plan.

Based on these facts the district court found the March 30 plan to be an “integrative procedure.” We agree. Factors other than ethnic composition and utilization may be significant in determining whether a school assignment plan is discriminatory. But plaintiffs in this action offered no evidence either to rebut the facts referred to above or to show that for any other reason the schooling in Districts 20, 21 and 22 would be any worse than in District 18. We can therefore find no discriminatory effect in the March 30 plan.

(C) The Legal Test Applied by the District Court

Notwithstanding the conclusion that the March 30 plan is intended to improve integration, appellants insist that we reverse because the district court failed to subject the plan to the “compelling necessity” test. Noting that the Board’s plan assigns the Tilden House children to schools on the basis of race, appellants seek to invoke the authority of the cases subjecting state action based on race to the compelling necessity test. They argue further, citing the opinion of the three-judge district court in Lee v. Nyquist, 318 F.Supp. 710, 719-720 (W.D.N.Y.1970), aff’d, 402 U.S. 935, 91 S.Ct. 1618, 29 L.Ed.2d 105 (1971) (mem.), that the plan must fall because defendants have failed to demonstrate that the professed objectives of the plan cannot be accomplished by alternative means which appellants find preferable.

First, appellants misconstrue the function of the compelling necessity test. Cases applying that standard invariably involve state action having a segregato-ry or discriminatory effect. . No court has applied the test where state action has had the effect and objective of reducing discrimination and segregation. See Porcelli v. Titus, 302 F.Supp. 726 (D.N.J.1969), aff’d, 431 F.2d 1254 (3d Cir. 1970); Offermann v. Nitkowski, 378 F.2d 22 (2d Cir. 1967); Deal v. Cincinnati Board of Education, 369 F.2d 55, 61 (6th Cir. 1966), cert. denied, 389 U.S. 847, 88 S.Ct. 39, 19 L.Ed.2d 114 (1967); Springfield School Committee v. Barksdale, 348 F.2d 261, 266 (1st Cir. 1965); cf. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).

Appellants misconstrue Lee v. Nyquist, 318 F.Supp. 710 (W.D.N.Y. 1970), and the significance of alternatives in equal protection cases. In Lee the court considered a statute which prohibited an appointed (as opposed to an elected) board of education from carrying out any plan of school integration. The court found that this served to continue segregation by making it more difficult to deal with racial imbalance. 318 F.Supp. at 716-720. Defendants there argued that the object and effect of the statute would be to promote the community acceptance necessary for the effectuation of local school desegregation. The Court responded:

“In any event, the defendants have failed to show that the purpose they impute to the statute could not be accomplished by alternative methods, not involving racial distinctions. See Hunter v. Erickson, supra, 393 U.S. [385,] at 392, 89 S.Ct. 557 [, 21 L.Ed. 2d 616].” 318 F.Supp. at 720.

In both Lee and Hunter the consideration of alternatives followed a finding that the state action in question had a discriminatory effect. In the instant case the March 30 plan has been found to have an integrative effect. No court has required a party to show the absence of preferable alternatives in such a case. School boards possess wide discretion in all aspects of school administration. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Pride I. 482 F.2d at 268-269; Deal v. Cincinnati Board of Education, 369 F.2d 55, 61 (6th Cir. 1966). This discretion may not be exercised to transgress constitutional limitations. But where this discretion is exercised within constitutional limits we have no power to substitute for it our own preferences or those of appellants.

IV. IRREPARABLE HARM

The district court held that “[p]laintiff has failed to show . that irreparable harm will accrue through denial of this motion.” Appellants contend that this finding is clearly erroneous. They do not contend that Districts 20, 21 and 22 are segregated or that the quality of education there is in any way inferior to that in District 18. But they argue that the Tilden House children will see that their parents have lost a struggle involving intense racial animosities to keep them in District 18 and that this will generate feelings of inferiority. They invoke the holding in Brown v. Board of Education, 347 U.S. 483, 494, 74 S.Ct. 686, 98 L.Ed. 873 (1954), that to separate black children solely on the basis of race may cause them irreparable harm.

In Pride I we recognized “the anguish and frustrations that have been present throughout this controversy,” 482 F.2d at 269, but still found no irreparable harm. Although the facts of this case are different, the distinctions observed in Pride I between that case and Brown apply equally in this case: the March 30 plan does not create or maintain school segregation and the academic quality of Districts 20, 21 and 22 is comparable to or better than that of District 18. We note also that Tilden House children who have attended District 18 schools will continue there under the March 30 plan, with only children newly enrolled to be affected. Thus we face here no dislocation from students having to switch schools. See Pride I, 482 F.2d at 269. With respect to these factors plaintiffs suffer no irreparable harm.

As to the emotional effect on the Til-den House children of reassignment in the wake of the District 18 dispute the lower court faced an issue of fact. Especially in light of the heavy burden borne by appellants in seeking a preliminary injunction we cannot say that the finding of no irreparable harm was clearly erroneous.

V. BALANCE OF HARDSHIPS

The same factors which persuaded us in Pride I that the balance of hardships did not tip sharply in favor of appellants dictate a similar finding in this case. Pride I, 482 F.2d at 269. As in Pride I, many of the factors to be considered are the same as were considered with respect to irreparable harm. Although granting a temporary injunction might not impose great hardship on defendants, neither does denial of the injunction create any hardship for plaintiffs. As stated in Pride I:

“ ‘[t]he children have not been wrenched from a school earlier attended by them. A temporary injunction would not restore them to “status quo.” It is a fair inference that their education will not be advanced by a mid-semester transfer to a different class conducted by a different teacher in a different school.’ And that is reinforced by the passage of time since the district court’s decision.” 482 F.2d at 270-271.

Plaintiffs have failed to show a probability of success on the merits at trial. They have also failed to show that they will suffer irreparable harm from denial of the preliminary injunction or that the balance of hardships weighs decidedly in their favor. Therefore, we hold that the district court properly declined to grant a preliminary injunction.

Affirmed.

      . In an earlier phase of this ease plaintiffs were denied a preliminary injunction against a plan to reassign Tilden House children from one elementary school in District 18 to another in the same district. Pride v. Community School Board of Brooklyn, New York School District # 18, 482 P.2d 257 (2d Cir. 1973).

      . The March 30 plan required assignment of Tilden House children entering the 7th grade to Junior High School 08. Plaintiffs do not challenge this part of the plan.

      . Our recent decision in Otero v. New York City Housing Authority, 484 F.2d 1122 (1973), does not help appellants. In Otero the defendant refused to apply to blacks and Puerto Ricans its own regulation requiring it to offer new public housing first to original residents who had been displaced from the site during construction. The Authority sought to justify this discrimination on the ground that the new housing in question was located in a neighborhood which had experienced a steady decline in percentage of white residents and that it had an affirmative duty to prevent the neighborhood from becoming segregated. We accepted the validity of this justification in theory but remanded to the district court for a determination of whether such action was in fact necessary to maintain an integrated neighborhood. 484 F.2d at 1135. We declared further that the evidence must be “convincing” and that the Authority’s burden is a “heavy one.” Id.
      Appellants argue that the same standards must apply here, but the two cases are very different. Although integration was the object of the action in Otero, the method by which it was achieved was outright denial of new public housing to non-white persons on account of race. The dangers inherent in such action clearly justify the “heavy” burden. In the instant case, however, plaintiffs continue to receive an education at least as good as and more integrated than they had previously received. Under such circumstances no danger of discrimination is present.

      . Appellants have contended that the Tilden House children could also receive a quality integrated education by further integrating the schools within District 18.


author: THORNBERRY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Glen FAULKNER and Linda Forrest Davis Jurek, Defendants-Appellants.
    No. 73-2299.
    United States Court of Appeals, Fifth Circuit.
    Jan. 17, 1974.
    Rehearing and Rehearing En Banc Denied Feb. 19, 1974.

      David L. Wagner, Abilene, Tex. (Court-appointed), for James Glen Faulkner.
    Marvin O. Teague, Houston, Tex., for Linda Jurek.
    Frank McCown, U. S. Atty., W. E. Smith, Asst. U. S. Atty., (Fort Worth, Tex.), for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and INGRAHAM, Circuit Judges.
   THORNBERRY, Circuit Judge:

Appellants Faulkner and Jurek were convicted of knowingly concealing and possessing counterfeit in violation of 18 U.S.C.A. § 472. In this appeal, both appellants contend that the counterfeit itself should not have been admitted in evidence against them since it was uncovered in an unconstitutional search of their car. Additionally, appellant Jurek contends that one of the jury instructions improperly shifted the burden of proof to the defendants. We affirm both convictions.

At approximately 8:40 p. m., Friday, May 9, 1973, Highway Patrolmen John Ferguson and Kenneth Maxwell were operating a radar unit on Interstate Highway 20 about four or five miles west of Big Spring, Texas, when they noticed a car approaching that did not appear to have a front license plate. As the vehicle passed they noted the rear Texas plate hanging at an angle, apparently secured by only one bolt, and the officers decided to investigate.

By the time the officers had caught up with the car, it was stopped in a parking lot. The officers questioned Faulkner about the missing license plate and the ownership of the vehicle. Faulkner explained that his brother-in-law owned the car but that he did not know his name. Jurek claimed that the car belonged to her husband and that she and Faulkner were only friends, contradicting Faulkner’s claim that she was his wife. Suspecting that the car might be stolen, the officers attempted to check its vehicle identification number but discovered that it had been removed, as is common on stolen vehicle. Mrs. Ju-rek gave the officers the license and registration papers to the car but neither the defendants’ names nor the names of anyone they claimed to know appeared on the papers.

Believing the vehicle to be stolen, Officer Ferguson began a search of it for other identification that might prove its ownership. In his search of the glove compartment he discovered a wallet containing personalized checks with the inscription James Faulkner and a large quantity of money, all in twenty dollar bills. Officer Ferguson took the wallet to the patrol car in order to inspect it in the presence of Faulkner. When the officers removed the bills they noted that the first five or six had the same serial number. A further search of the car uncovered more counterfeit twenty dollar bills.

Appellants’ primary complaint is that their arrest for a minor traffic violation —driving without a front license plate —provided no justification for a search of the car. They rely primarily upon Amador-Gonzalez v. United States, 5 Cir. 1968, 391 F.2d 308, where we held unconstitutional a search of defendant’s car for narcotics after he had been stopped for an improper turn. In that case, however, the stop was made by a narcotics agent who already suspected the defendant of possessing narcotics and used the traffic violation as a mere pretext to search for them.

The arrest in the present case was no mere pretext for the search. The officers in the investigation of the crime of driving without a front license plate certainly had the right to ask for Faulkner’s driver’s license and to make reasonable investigative inquiry about the ownership of the vehicle. United States v. Cross, 5 Cir. 1971, 437 F.2d 385; Myricks v. United States, 5 Cir. 1967, 370 F.2d 901, cert. dismissed, 386 U.S. 1015, 87 S.Ct. 1366, 18 L.Ed.2d 474. When Faulkner and Jurek gave the officers conflicting stories about their relationship and the ownership of the car, the suspicion that the car might have been stolen was reasonably aroused. Under these circumstances, the officers acted reasonably in looking for the vehicle identification number. United States v. Johnson, 5 Cir. 1970, 431 F.2d 441. When they discovered that it had been removed, and when they saw that the names on the license and registration papers of the car were not those of either of the defendants nor of anyone they claimed to know, we think there was probable cause to suspect that the ear had been stolen. Under these circumstances we hold, as did the Seventh Circuit in United States v. Jackson, 7 Cir. 1970, 429 F.2d 1368, that a search of the automobile for the purpose of discovering further indicia of ownership was reasonable and permissible. Accord, Meade v. Cox, 4 Cir. 1971, 438 F. 2d 323, cert. denied, 404 U.S. 910, 92 S. Ct. 234, 30 L.Ed.2d 182; Kendrick v. Nelson, 9 Cir. 1971, 448 F.2d 25. There was the necessary nexus between the reason for the arrest and the search to support a warrantless search of the automobile under Williams v. United States, 5 Cir. 1969, 412 F.2d 729. See also United States v. Kelehar, 5 Cir. 1972, 470 F.2d 176; Wellman v. United States, 5 Cir. 1969, 414 F.2d 263; Welch v. United States, 10 Cir. 1966, 361 F.2d 214, cert. denied, 385 U.S. 876, 87 S.Ct. 153, 17 L.Ed.2d 103; United States v. Owens, 7 Cir. 1965, 346 F.2d 329, cert. denied, 382 U.S. 878, 86 S.Ct. 163, 15 L. Ed.2d 119. Since the search was proper, the counterfeit was admissible. See Wellman v. United States, supra.

Appellant Jurek’s second point is that the jury charge improperly shifted the burden of proof to the defendants. She asserts that the district court implied that, since the indictment had been returned by the grand jury, the defendants were obliged to come forward with evidence to overcome it. She quotes the following small excerpt from the charge as support for this:

The grand jury merely determines whether there is probable cause to pass the case on to the Court, and to let a jury hear both sides under our adversary system where the parties are represented by lawyers, and where both parties have the right to bring in witnesses and to cross examine witnesses for the other side.

We find this argument without merit. When seen in full context, it is clear that the charge properly placed the burden of proof on the government. The full charge regarding the burden of proof is as follows:

Before going into the particular principles of law relating to this kind of offense, I want to discuss with you some fundamental principles that apply to every criminal case and that enure to the benefit of every defendant in a criminal case. -
In the first place, the indictment itself is not any evidence whatever of guilt. It is merely a means of method of getting a case into court and of informing the defendant of the nature of the charge against him. You can see the reason for a law like that. When a grand jury considers a case, the defendant is seldom there. In most cases, he is not there at all. He certainly would not have any lawyer there, and there is no cross examination of other witnesses or anything like that. The grand jury merely determines whether there is probable cause to pass the case on to the Court, and to let a jury hear both sides under our adversary system where the parties are represented by lawyers, and where both parties have the right to bring in witnesses and to cross examine witnesses for the other side. So, it is just common sense that a grand jury indictment is not any circumstance or evidence of guilt whatever.
In the second place, every person who comes into court charged with crime is presumed to be innocent of the offense lodged against him; and that presumption stays with him throughout the trial of the case and into your deliberations and remains, unless and until you are convinced that his guilt has been proved beyond a reasonable doubt. When I say “his”, I use it in the legal sense, which includes “her”. It includes both the masculine and the feminine.
In the next place, the burden of proof is always upon the government to establish the guilt of the defendant beyond a reasonable doubt. That means that the government must prove each and every element of the offense charged beyond a reasonable doubt. [If] it has failed to prove one or more of those elements beyond a reasonable doubt, then the defendant is entitled to an acquittal.
“Reasonable doubt” is not a fanciful or an imaginary doubt. The law of reasonable doubt does not require that the prosecution bring in a moving picture of the offense showing to a moral certainty that the defendant on trial is guilty. Reasonable doubt merely means a doubt based on a reason: the kind of common sense doubt based on a reason that would make an ordinarily prudent person hesitate to act in the more important affairs of his life.
Of course, as you go along now and in regard to the charge I have already given and the rest of it, you will take the charge as a whole and not single out any portion and consider it out of context.

Since we find no error in the proceedings before the district court, the judgment is

Affirmed.


author: PER CURIAM:

text:
    Griffin BAKER, Plaintiff-Appellant, v. S/S CRISTOBAL, her engines, tackle, etc., et al., Defendants-Appellees.
    No. 73-2791
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 14, 1974.

      William F. Wessel, Earl J. Higgins, Marvin C. Grodsky, New Orleans, La., for plaintiff-appellant.
    John R. Sehupp, Asst. U. S. Atty., New Orleans, La., John Moncure, Admiralty & Shipping Section, Dept, of Justice, Washington, D. C., for U. S. A.
    Thomas W. Thorne, Jr., New Orleans, La., for New Orleans Stevedoring.
    Before THORNBERRY, GOLDBERG and RONEY, 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.

   PER CURIAM:

Plaintiff appeals the decision of the district court denying him damages for personal injury suffered in the course of his employment aboard the S/S CRIS-TOBAL. At issue on this appeal is whether or not the method of handling cargo aboard the S/S CRISTOBAL rendered the vessel unseaworthy. The district court held that it did not, and we affirm.

Plaintiff, a robust (6 foot 6 inch, 245 pound) 38 year old longshoreman, and his partner Lawrence Blaise, were assigned to remove pallet boards from a wagon in the hold of the ship and place them in a stack to be lifted away by the ship’s gear. Plaintiff was straddling a coupling apparatus on the end of the wagon while he and his partner were moving an empty pallet weighing between 200 and 250 pounds. As he was bending over and lifting the pallet, plaintiff experienced a sharp pain in his back. Surgery was required and plaintiff has since been unable to resume his longshore occupation.

Plaintiff alleges that his injuries resulted from defendant’s negligence in failing to provide a safe place in which to work and adequate personnel, and in failing to take other safety precautions, all of which rendered the vessel unsea-worthy. Specifically, plaintiff contends that the method of handling cargo aboard the S/S CRISTOBAL amounted to a condition of unseaworthiness, causing defendant to be liable for plaintiff’s injuries.

It is well settled that an improper method of handling cargo employed by a stevedore can create an unseaworthy condition. Morales v. City of Galveston, 1962, 370 U.S. 165, 170, 82 S.Ct. 1226, 8 L.Ed.2d 412; Marshall v. Ove Skou Rederi A/S, 5 Cir. 1967, 378 F.2d 193, 196. Thus, the determinative question on this appeal is whether or not defendant employed an improper method of handling cargo.

Plaintiff asserts that the method of handling cargo aboard the S/S CRIS-TOBAL was improper because plaintiff was required to lift boards that were too heavy for his back to support. As sole substantiation for his claim, plaintiff relies upon a Department of Labor publication entitled “Teach Them to Lift,” which sets forth “expert” suggestions concerning limits on weights that can safely be lifted. The publication indicates that weights “[t]o be carried by adult male employed in operations requiring lifting and carrying should not normally exceed forty kilograms, 88.2 pounds.” The following notation was added in italics:

The experts agreed that the daily load could be suitably adjusted to varying working and environmental operations, failing nutrition and fatigue of the worker by adjusting the number of packages and weights to be handled.

As the district court properly noted, even though plaintiff was moving half of a 200-250 pound pallet board, the pamphlet upon which he relies fails to establish his claim for two reasons. First, the suggested limits were intended to be flexible; as noted above, plaintiff is unusually robust and could be expected to have substantially more than average lifting ability. Second, the standards applied to “lifting and carrying,” whereas the evidence in this case indicated that plaintiff was moving the pallet boards with an easier “sliding” or “rolling” motion. Thus, plaintiff has not demonstrated that the method of handling cargo employed by defendant was improper.

The district court found, and plaintiff does not challenge, that the practice of assigning two men to lift boards of the approximate weight involved here was in accordance with accepted standards in the industry and with custom in the Port of New Orleans. As Judge Wisdom has written for this Court:

It is true, of course, that “compliance with the customs and practices of an industry is not in itself due care,” Schlichter v. Port Arthur Towing Co., 5th Cir., 1961, 288 F.2d 801, cert. den., 368 U.S. 828, 82 S.Ct. 50, 7 L.Ed.2d 32, but it is evidence of due care. When the fact finder has relied on such evidence, his findings will not lightly be disregarded unless there is a particularly strong showing of the unreasonableness of the customary practice.

Cia Maritima Del Nervion v. James J. Flanagan Shipping Corp., 5 Cir. 1962, 308 F.2d 120, 123. The principle enunciated in Cia Marítima applies with equal force in the present context, where the charge is improper procedures rather than defective equipment. In the case before us, plaintiff has not made what could be described as “a particularly strong showing of the unreasonableness of the customary practice.”

We are bolstered in our conclusion by evidence that individual longshoremen were free to choose any of the several techniques of moving the pallet boards. Plaintiff and his partner could have altered their allegedly unsafe procedure unilaterally without seeking new equipment or practices from their employer. Specifically, the able district judge found that:

there were alternatives readily available to this crew of two by which they could have handled the pallets in a different way, and they chose purely as a matter of their own work habits to handle it this way.
. The car could have been moved up longitudinally rather than latitudinally to the stacks so that the method of lifting that both men recognized as safe, putting their thighs and leg muscles into the lift, could have been employed.
They didn’t choose to do it because they had lifted these pallets of equal weight many times and found it no problem.

Under these circumstances the district court was fully justified in its conclusion that, “[a]t the most, it can be said only that, engaged in a plan of operation that was safe, the plaintiff chose to employ a particular method that was unsafe, and this does not render the vessel unsea-worthy.”

Affirmed.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael THOMAS and Joseph Yoppolo, Defendants-Appellants.
    No. 73-1148.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 2, 1973.
    Decided Dec. 6, 1973.
    George E. Woods, Detroit, Mich., on brief, for defendant-appellant, Michael Thomas.
    John M. Chase, Jr., Detroit, Mich., on brief, for defendant-appellant, Joseph Yoppolo.
    Ralph B. Guy, Jr., U. S. Atty., Sidney M. Glazer, Kirby W. Patterson, Attys., Crim.Div., Dept, of Justice, Washington, D. C., Alfred G. Kaufman, Detroit, Mich., James E. Kelley, Jr., Sp. Attys., Washington, D. C., on brief, for plaintiff-ap-pellee.
    Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.

      . The record indicates that Lázarov’s oral motion to sever the indictment as to trial for him was granted by the District Court.

   PER CURIAM.

Appellants and two co-defendants were indicted on five counts of counterfeiting in violation of 18 U.S.C. §§ 472, 474, and 501, and on one count of conspiracy to counterfeit in violation of 18 U.S.C. § 371. In a previous action before this Court, in an unpublished opinion we reversed an order of the District Court which sustained the defendants’ motion to suppress evidence obtained under a search warrant. United States v. Thomas, No. 71-1161 (6th Cir. May 25, 1972). Upon remand for trial, co-defendant Andrew Asaro received a directed judgment of acquittal at the conclusion of the Government’s case and co-defendant Michael Lazarov testified for the Government. Appellants were then convicted by a jury on the conspiracy count and four of the substantive counts and were sentenced to concurrent terms of five years imprisonment on each count.

It appears that Asaro was the first witness called to testify by the appellants. Counsel for the appellant Thomas advised the prospective witness that his testimony could lead to a prosecution for misprision of a felony and inquired if he wished to confer with his attorney. Asaro acknowledged the advice but declined the opportunity to seek counsel. Thereupon the Court made an additional explanation of the matter and upon further inquiry from Thomas’ counsel, Asa-ro agreed to consult counsel. A short recess was called to allow Asaro to locate his counsel, who had left the courtroom when his motion for acquittal was granted.

During the recess Asaro was unable to locate his attorney but, as he later testified, during this time he was approached by a secret service agent involved in the case who told him that he would be prosecuted for misprision of a felony if he testified in the case. Asaro testified for the limited purpose of describing the conversation between the agent and himself and the agent was permitted to testify in rebuttal that he only advised the witness that he could be prosecuted if he took the stand. Appellant Thomas’ lawyer was present for a portion of the exchange between Asaro and the agent and attempted to testify in corroboration of Asaro’s testimony, but the Court refused to permit this. The Court reprimanded the secret service agent and the Assistant United States Attorney on whose behest the agent had approached the prospective witness. The Court also denied counsel’s motions for a mistrial and to be relieved as counsel for Thomas. Following this, Asaro failed to testify. The Government advised the Court that Asaro would not be prosecuted if he testified although immunity was not provided. Asaro indicated that he would testify only under subpoena, which was not requested.

On appeal, the appellants contend that the prospective witness Asaro was prej-udicially intimidated and threatened by the Government, in effect driven off the witness stand, thereby depriving appellants of due process of law in violation of the Fourteenth Amendment.

We first turn to the leading case of Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), which clearly established that a party’s right to present his own witnesses in establishing a defense is a fundamental element of due process of law and is protected. The Government’s position, however, is that the factors of what it describes as overwhelming evidence of guilt, the lack of a proffer of Asaro’s testimony and the failure of defense counsel to recall Asaro as a witness substantiate the conclusion that there is insufficient prejudice to justify a new trial.

In this regard the recent case of Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972), is illuminating. In that case, the trial judge gratuitously and severely admonished the sole witness proffered by the defense, who had a criminal record and was then serving á prison sentence, on the dangers of perjury, whereupon the witness refused to testify. The Supreme Court, in reversing the conviction, found that “ . . . the unnecessarily strong terms used by the judge could well have exerted such duress on the witness’ mind as to preclude him from making a free and voluntary choice whether or not to testify.” 409 U.S. at 98, 93 S.Ct. at 353. Although two dissenting Justices suggested that overwhelming evidence of guilt and a “bare allegation of prejudice” should be relevant considerations, the per curiam opinion emphasized the fundamental nature of the accused’s right to present witnesses in his own behalf and did not indicate that any factors such as those urged by the Government here or by the dissenting Justices in Webb should be considered. For reasons detailed below, even if we could consider the factors here urged, we conclude that they would not serve to overcome the prejudice inuring to the appellant as a direct result of the Government’s misconduct.

There is no question but that it was completely unnecessary for the Government to approach the prospective witness. The transcript reveals that both the District Judge and counsel for the co-defendant Thomas went to considerable lengths to advise Asaro that his decision to testify should be based on full knowledge of the consequences, confirmed through his own counsel. Consequently the actions of the Assistant U.S. Attorney, through the secret service agent, in seeking out the prospective witness and on an ex parte basis gratuitously admonishing him cannot be viewed as serving any valid purpose, even accepting the assertions of good faith. Further, considering the caution carefully expressed to Asaro in the courtroom, it is difficult not to regard the Government’s later out-of-court communication with Asaro as an attempt to intimidate.

The Government argues that its later statement to the District Court that Asaro would not be prosecuted based on his testimony was sufficient to overcome any prejudice inuring to the appellant. In this regard the Government stresses that the defense counsel’s failure to recall the witness or to issue a subpoena ad testificandum should be a pivotal consideration. We cannot agree. There is an obvious and considerable difference between the free and open testimony anticipated of a voluntary witness and the perhaps guarded testimony of a reluctant witness who is willing to appear only at the command of the court. Further, the Government’s action here substantially interfered with any free and unhampered determination the witness might have made as to whether to testify and if so as to the content of such testimony. The result is that the misconduct of the Government directly produced an opportunity for the jury to draw prejudicial inferences from the fact that the witness failed to testify. In addition, the appellant makes the point that the Government’s misconduct had a direct bearing on the defense counsel’s trial strategy, suggesting that had Asaro testified appellant might not have. The Government’s statement that it would forego prosecution will not serve to wipe out the prejudicial effect of the event. Nothing short of complete immunity, if even that, could have relieved Asaro’s apprehension, and restored his free and voluntary choice, eliminating the prejudice.

The judgment of the District Court is reversed and the cause is remanded for a new trial.