source: Caselaw Access Project

author: THOMPSON, District Judge.

license: Public Domain

text:
    G & C ENTERPRISES, INC., a New Jersey Corporation, Plaintiff, v. WAGE APPEALS BOARD, United States Department of Labor, Defendant.
    Civ. No. 84-1466.
    United States District Court, D. New Jersey.
    Oct. 16, 1985.
    As Amended Oct. 29, 1985.

      Jan M. Schlesinger, Schlesinger, Schlos-ser, Foy & Harrington, Mount Holly, N.J., for plaintiff.
    Irene Dowdy, Asst. U.S. Atty., Trenton, N.J., for defendant.
    Terry R. Yellig, Sherman, Dunn, Cohen, Leifer & Counts, Washington, D.C., Barry M. Bennett, Tomar, Parks, Seliger, Simo-noff & Adourian, P.C., Haddonfíeld, N.J., for intervenor Bldg. & Const. Trades Dept., AFL-CIO.
   OPINION

THOMPSON, District Judge.

This matter comes before the court on the cross-motions of the parties for summary judgment. Plaintiff is G & C Enterprises, Inc. Defendant is the Wage Appeals Board, U.S. Department of Labor. Plaintiff seeks review of an administrative decision pursuant to the Administrative Procedures Act, 5 U.S.C. § 701, et seq.

Plaintiff is a construction contractor covered by the Davis-Bacon Act, 40 U.S.C. § 276a, et seq. The Department of Labor has determined that plaintiff owes over $11,000 in back wages to its employees for fringe benefits for overtime hours worked. Plaintiff appealed the finding through administrative channels to the Wage Appeals Board [“the Board”]. After a hearing and argument, the Board upheld the agency decision. Plaintiff argues that the Board made an error of law in deciding that the Davis-Bacon Act requires an employer to provide fringe benefits for overtime work.

The Davis-Bacon Act establishes wage standards for construction workers hired by government contractors. It provides at 40 U.S.C. § 276a(a):

The advertised specifications for every contract in excess of $2,000, to which the United States ... is a party, for construction ... of public buildings ... shall contain a provision stating the minimum wages to be paid various classes of laborers ... which shall be based upon the wages that will be determined by the Secretary of Labor to be prevailing for the corresponding classes of laborers ... employed on projects of a character similar to the contract work in the city ... in which the work is to be performed ... and every contract based upon these specifications shall contain a stipulation that the contractor ... shall pay all ... laborers ... the full amounts accrued at the time of payment, computed at wage rates not less than those stated in the advertised specifications____

Subsection (b) defines “wages,” “wage rates,” and “prevailing wages” as,

(1) the basic hourly rate of pay; and
(2) the amount of ...
(A) the rate of contributions ... made to a trustee ... pursuant to a fund ... and
(B) the rate of costs to the contractor ... in providing benefits to laborers ... for medical or hospital care, pension ... or other bona fide fringe benefits____

Therefore, the statute has defined “wage” to be composed of both a per hour cash payment, plus a fringe benefit package. Subsection (b) provides, however, that the employer can satisfy the fringe benefit portion, of the wage by either making contributions to a trust fund, by bearing the cost of a benefits program, or by paying the equivalent amount to the employee in cash.

On the face of the statute, the court finds nothing to suggest that when overtime pay is calculated, the “wage” would be calculated as a per hour cash payment, rather than a per hour cash payment plus fringe benefits as provided in the statute.

Plaintiffs interpretation to the contrary is based on a reading of the Contract Work Hours and Safety Standards Act, [“CWHSSA”], 40 U.S.C. § 327, et seq. That act states at § 328(a) that the standard work day is to be 8 hours and the standard work week is to be 40 hours. The statute says,

Work in excess of such standard work day or work week shall be permitted subject to the provisions of this section. For each workweek in which any laborer ... is so employed, wages shall include compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of 8 hours in any calendar day or in excess of 40 hours in the workweek____ '

The Davis-Bacon Act provides:

In determining the overtime pay to which the laborer ... is entitled under any Federal law, his ... basic hourly rate of pay ... shall be deemed to be the rate computed under 111 [i.e., the per hour cash payment portion of wages].

Therefore, reading the CWHSSA in conjunction with the Davis-Bacon Act, the CWHSSA provides that the overtime wage shall include compensation of IV2 times the per hour cash payment. The Davis-Bacon Act provides that the U/2 bonus multiplication apply only to the per hour cash payment, and not that the employer also be liable for IV2 times the fringe benefits for overtime work. Plaintiffs argument that the CWHSSA’s IV2 times bonus be the exclusive amount of wage during overtime is belied by the phrase “wages shall include )>

The legislative history of the Act also supports the Board’s interpretation. The Davis-Bacon Act was originally enacted in 1931 to ensure that government contractors “were free to compete against each other in efficiency, know-how, and skill rather than in terms of their ability to depress the prevailing wage structure in a locality.” House Report No. 308, page 2. The Act was amended in 1964, two years after the passage of the CWHSSA, to provide the first definition of “wages” in the Act. The legislative history states,

There has been a tremendous change in the concept of earnings since Congress enacted the Davis-Bacon Act. Group hospitalization, disability benefits, and other fringe benefit plans were the rare exception in the 1930’s. Today more than 85 million persons in the United States depend upon the benefits they provide. Regardless of the form they take, the employer’s share of the cost of these plans or the benefits the employers provide are a form of compensation. It has become increasingly apparent that if the Davis-Bacon Act is to continue to accomplish its purpose, prevailing wage determinations issued pursuant to the act must be enlarged to include fringe benefits.

Id., at pages 2-3.

The Supplemental Views section of the legislative history further provides,

The cost of fringe benefits should be included when the prevailing wage rate is computed under provisions of the Davis-Bacon Act. When the act was passed in 1931, fringe benefits were for the most part unknown. At that time, a worker received a flat amount, usually so much per hour, and this constituted his whole wage. Today, that is not the case. The so-called fringe benefits are an important part of a worker’s wage, often being given today in lieu of increases in actual cash wages. Therefore, we believe the present law should be amended to permit the inclusion of fringe benefits when the prevailing wage is determined.

Id., at page 10.

The legislative history also provides,

A provision was added which specifically provides that fringe benefits shall not be used in the calculation of overtime. This provision was necessary to prevent penalization of contractors who might pay fringe benefits in cash. The exclusion of fringe benefits from the calculation of overtime also conforms to the Fair Labor Standards Act.

The Board has quoted a statement from Congressperson Sickles demonstrating that he clearly assumed that fringe benefits contributions would be paid on overtime hours in addition to the IV2 times bonus.

The Davis-Bacon Act was passed after the CWHSSA. Congress knew of the lVa times provision of the CWHSSA. In the Davis-Bacon Act, Congress addressed the relationship between that Act and the IV2 times provision. Had Congress intended to further provide that the fringe benefit portion of wages not be paid for overtime work, contrary to the clear statements about fringe benefits contained in the body of the Act, it could have done so. It did not, and in light of the legislative history, the court finds no basis for concluding that such an interpretation is warranted.

Plaintiff also argues that Congress intended that government contract laborers be paid in accordance with private sector laborers. They assert that if fringe benefits are paid on overtime hours, the total wage would be higher than the prevailing wage in the private sector. To the contrary, an intervenor, the Building and Construction Trades Department, has submitted a number of affidavits from union business managers to the effect that union members in the construction industry in New Jersey are paid fringe benefits for overtime work “at least at the standard rate and often at a premium rate.”

Plaintiff also argues that it should be excused from the provisions of the Act because the Act is ambiguous. The Board held that “The 1964 amendments have been in place almost twenty years. The Board has no knowledge of any other contractors having a similar problem. In fact it appears to be standard knowledge in the construction industry that contractors performing work subject to the Davis-Bacon Act must pay fringe benefits for all hours worked, including overtime hours.” Plaintiff neither challenges this finding nor offers an alternative factual statement. In any event, the court finds that the Act is not ambiguous and declines to relieve plaintiff from its obligations.

In conclusion, the Davis-Bacon Act requires that fringe benefits become a portion of all wages paid to covered employees. The Act is to be applied to all hours worked, whether regular time or overtime. Therefore, plaintiff’s motion for summary judgment is denied and defendant’s motion is granted.


author: GOETTEL, District Judge:

text:
    Harold SCHREIBER, Petitioner, v. Dominick R. SALAMACK, Superintendent, Edgecombe Correctional Facility, Respondent.
    No. 85 Civ. 1263 (GLG).
    United States District Court, S.D. New York.
    Oct. 17, 1985.

      Harold Schreiber, petitioner, pro se.
    Mario Merola, Dist. Atty. by Robert L. Shepherd, Asst. Dist. Atty., Bronx, N.Y., for respondent.
   OPINION

GOETTEL, District Judge:

This habeas corpus petition presents several questions, one more interesting than those typically raised following a state felony conviction. The petitioner asserts that he was denied a fair trial because of the prosecutor’s discriminatory use of peremptory challenges during jury selection. Despite this controversial issue, we conclude that the petition must be denied.

I. BACKGROUND

On December 18,1981, the petitioner was convicted by a jury in Bronx County of conspiracy in the fourth degree for planning to destroy a building used by his business. He was sentenced as a second felony offender to an indeterminate term of imprisonment of two to four years, which he is still serving. The conviction was unanimously affirmed by the Appellate Division, without opinion, and the Court of Appeals denied leave to appeal. The petitioner moved to set aside the sentence; that motion was denied.

On May 31, 1984, the petitioner again moved to vacate his conviction, this time raising a new issue. He asserted that his constitutional rights had been violated by the prosecutor’s alleged use of peremptory challenges to systematically exclude white persons from the jury. He based his argument upon McCray v. Abrams, 576 F.Supp. 1244 (E.D.N.Y.1983), aff'd in part and vacated in part, 750 F.2d 1113 (2d Cir.1984). The People asserted that the motion was procedurally barred for failure to raise this issue on appeal. On July 12, 1984, the State Supreme Court denied the motion to vacate conviction, without opinion. Leave to appeal to the Appellate Division was later denied.

A. The Instant Petition

1. Sufficiency of the Evidence Claim

The petitioner raises several issues in this federal habeas corpus petition. The first is that the evidence at trial was legally insufficient to enable a rational trier of facts to have found guilt beyond a reasonable doubt, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This can be dealt with summarily. The principal witness for the prosecution was the prospective “torch.” The petitioner argues that the witness was of such questionable veracity that his testimony should have been rejected by the jury. But, credibility of a witness is a matter for the finder of fact. While the petitioner claims that the witness was an accomplice and that his testimony was not corroborated as required by New York law, People v. Daniels, 37 N.Y.2d 624, 630, 376 N.Y.S.2d 436, 440, 339 N.E.2d 139, 141 (1975), that clearly was not the case. The witness was wired with a recorder on which the petitioner’s co-defendant can be heard planning the destruction of the building. On these tapes, the witness described at length the defendant’s instructions to him concerning the plan to destroy the building and the insurance benefits he might receive. In addition, a wealth of other facts' supported, the prosecution’s case, including a large amount of back taxes owed, a recent increase in the amount of insurance (which brought the insurance above the secured loans against the premises), and other physical evidence concerning the sealed condition of the building intended to promote its destruction. ■

The petitioner makes other unconvincing arguments, such as the fact that the replacement cost of the building exceeded the insurance (not an unusual situation) and that a real estate agent testified that the building might have been sold for more than its insured value. These are not factors that would have prevented any rational juror from returning a verdict of guilty beyond a reasonable doubt in light of the other evidence.

2. Peremptory Challenge Claim

The interesting question in this petition is the attack on the prosecutor’s use of peremptory challenges to strike prospective white jurors. As the petitioner puts it:

A white 65 year old Jewish businessman from Freeport, Long Island, was on trial for conspiracy to blow up his commercial building in the South Bronx. The People’s key witness was a black junkie who was purported to have been hired to do away with the subject building for a mere $1500. By the prosecutor’s own remarks, one must conclude that the reason he excluded whites from the jury was because he was afraid whites would have been unable to identify racially with the witness.

Petitioner’s Memorandum of Law at 27-28. At trial, the petitioner objected to the prosecutor’s use of his peremptory challenges primarily against white jurors. The petitioner did not, however, pursue this argument on appeal. His co-defendant did appeal on this issue, but was unsuccessful.

The respondent argues that the petitioner has waived his right to habeas corpus review of this question because he bypassed the state appellate procedures and failed to show cause for his procedural default and prejudice resulting from the alleged violation. See Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The petitioner replies that, until the federal courts in this circuit changed the law (which occurred long after his appeal had been denied), appealing the peremptory challenge issue appeared pointless. This, he asserts, justifies any alleged bypass of state procedures because “where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures.” Reed v. Ross, — U.S. —, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984). The petitioner also notes that, since the State Supreme Court did not indicate why it denied his renewed motion to vacate the conviction, we cannot be sure the decision was based upon a procedural bypass.

The respondent further argues that the co-defendant raised the peremptory challenge issue on his state appeal while this petitioner did not. The co-defendant’s appeal was denied. See People v. Roman, 106 A.D.2d 261, 484 N.Y.S.2d 389 (1st Dep’t 1984) (affirmance of conviction, without opinion). This argument does more to support the petition than oppose it, since it demonstrates that the state courts have “had a chance to mend their own fences and avoid federal intrusion.” Engle v. Isaac, supra, 456 U.S. at 129, 102 S.Ct. at 1572.

An additional equitable, if not legal, argument is that the co-defendant successfully attacked his conviction in the federal court. Roman v. Abrams, 608 F.Supp. 629 (S.D.N.Y.1985). Judge Brieant granted that petition on May 15, 1985, based on the Second Circuit’s recent decision in McCray v. Abrams, 750 F.2d 1113 (2d Cir.1984), rehearing en banc denied, 756 F.2d 277 (2d Cir.), petition for cert. filed, 53 U.S. L.W. 3671 (March 4, 1985) (No. 84-1426).

Under all these circumstances, we are reluctant to dismiss this petition on the basis of procedural bypass and the failure to give the state courts an adequate opportunity to consider the issue. We turn, therefore, to the merits of the petition.

II. DISCUSSION

A. The McCray v. Abrams Decision

This Court discussed McCray v. Abrams, supra, in our memorandum decision dated April 22, 1985. To recap briefly, McCray, a black man, was charged with robbing a white man. He was tried before a jury comprised of nine white and three black jurors. The trial ended in a hung jury, with either two or all three of the black jurors holding out for acquittal. At a retrial with the same Assistant District Attorney prosecuting, the State exercised most of its peremptory challenges (the State got fifteen, as did the defendant) against black and hispanic jurors. The case went to trial with, at most, only an alternate juror who was black or hispanic. The defendant was convicted. The Appellate Division affirmed without opinion; the New York Court of Appeals affirmed 4-3. People v. McCray, 57 N.Y.2d 542, 443 N.E.2d 915, 457 N.Y.S.2d 441 (1982). The Supreme Court of the United States denied a petition for certiorari 7-2. McCray v. New York, 461 U.S. 961, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983).

McCray then filed a federal habeas corpus petition in the Eastern District of New York. The State, surprisingly, agreed that the discriminatory use of peremptory challenges violates a defendant’s constitutional rights, but argued that McCray had not made a prima facie showing of discriminatory challenges and that, even if he had, an evidentiary hearing should be held. The district court granted the petition and an appeal followed.

The Second Circuit Court of Appeals affirmed 2-1. (There is a strong dissent from Judge Meskill.) Much of the majority-opinion is devoted to distinguishing the Supreme Court’s decision in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Swain held that the State’s exclusion of Negroes from a petit jury by use of peremptory challenges did not violate a defendant’s constitutional right to equal protection of the laws. Id. at 221, 85 S.Ct. at 836. The Court noted the paramount importance of peremptory challenges in assuring the selection of a fair and impartial jury, id. at 219, 85 S.Ct. at 835, and found that

[t]he presumtion in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it.

Id. at 222, 85 S.Ct. at 837. However, the Court went on to note that if Negroes were systematically removed from every jury in case after case, the presumption could be overcome. Id. at 223-24, 85 S.Ct. at 837-38.

The McCray court focuses on the sixth amendment rather than the equal protection clause. It acknowledges that a defendant has no sixth amendment right to a petit jury of a particular composition. Id. at 1128. However, the majority finds that the sixth amendment is violated by the state’s systematic elimination of the possibility that the petit jury will be comprised of a cross section of the community. Id. at 1129. It construes the sixth amendment

to require the court to decide each case on the basis of the acts or practices complained of in that very case, and not to require the defendant to show, as Swain requires for an equal protection claim, that those acts or practices have had undesirable effects in case after case.

Id. at 1130.

The majority notes that “the goal of jury selection is to assure that each juror is free from bias.” Id. at 1131. It then points out that

the notions that all persons who share an attribute, such as the same skin color, will ipso facto view matters in the same way, and that minority groups are less able than whites to decide the case solely on the basis of the evidence, are both fallacious and pernicious____ Any notion that white persons can be objective in viewing a case on its merits and that blacks qua blacks cannot, is particularly objectionable.

Id. It concludes that the prosecution may exercise its peremptory challenges to obtain an unbiased jury panel but may not “excuse jurors solely on the basis of their racial affiliation.” Id.

Under McCray, peremptory challenges are no longer free from judicial scrutiny. A defendant can demonstrate a prima facie violation of his rights by showing that

(1) the group alleged to be excluded is a cognizable group in the community, and
(2) there is a substantial likelihood that the challenges leading to this exclusion have been made on the basis of the individual venirepersons’ group affiliation rather than because of any indication of a possible inability to decide the case on the basis of the evidence presented.

Id. at 1131-32. To rebut this showing, “the prosecution need not show cause for the excuse of the jurors in question but only genuine reasons other than group affiliation.” Id. at 1132.

B. The Co-Defendant’s Habeas Corpus Petition

The co-defendant who, like the petitioner, is white, brought a habeas corpus action in federal court claiming that the State’s systematic exclusion of white jurors denied him a fair trial. Based upon McCray, Judge Brient granted the co-defendant’s petition and directed that he be released unless retried. Roman v. Abrams, 608 F.Supp. 629 (S.D.N.Y.1985). That decision is now on appeal.

The petitioner in our case has argued that we should give deference to Judge Brieant’s decision in his co-defendant’s action. We have the highest regard for Judge Brieant’s wisdom. We agree with many of his observations concerning the impact of the Second Circuit’s opinion in McCray. Both that ease and this indicate the accuracy of the dissenting opinion in McCray, which found the majority opinion unworkable and contrary to the law of this, and almost every other, federal circuit. See id. at 641 (citing McCray, supra, 750 F.2d at 1135 (Meskill, C.J. dissenting)).

We have also examined the record of the hearing held before Judge Brieant with respect to the jury selection in this petitioner’s case. (Judge Brieant tracks the jury selection process through eight rounds in his opinion in Roman v. Abrams, supra, 608 F.Supp. at 632-34, and there is no need to repeat it.) That hearing clearly demonstrates the difficulty of applying the McCray ruling. For example, when the prosecutor was asked what sort of jury he was trying to pick, he responded as follows:

A jury that in my view could call the shots in laymen’s terms, a jury that wasn’t too intellectual that may get caught up on all sorts of perhaps irrelevancies and come up with a million different reasons why not to convict, and I didn’t want a jury that wasn’t too uninformed.

Transcript of Hearing Before Judge Brieant, Feb. 13, 1985, at 55. While this explanation may defy understanding, it is apparent in other parts of the transcript that the prosecutor was concerned about the credibility of his major witness (a black man with an extensive criminal record) and was looking for jurors who might empathize with the witness. The prosecutor was apparently asserting that he was not challenging white jurors because of their race, but rather was affirmatively seeking black jurors who might be more accepting of his major witness.

In addition, numerous practical difficulties were encountered during the hearing. Apparently, no one (including the prosecutor) made any notes identifying the actual race of the prospective jurors. The prosecutor apparently challenged eight white jurors, two hispanic, and one black. Debates developed over whether the challenged hispanic jurors were light skinned or dark skinned. (The ultimate jury selected contained three whites, three hispanics, and six blacks; the prosecution did not use three of its peremptory challenges.) These intricacies led to questions that were sometimes incomprehensible.

In the final analysis, it appears that the prosecutor exercised his peremptory challenges in the manner that he did since: “I wanted jurors whom I believed, based on all of my experiences, would convict.” Judge Brieant found the prosecutor’s explanation of his reasons for his challenges “childish and pretextual as well as unbelievable,” Roman v. Abrams, supra, 608 F.Supp. at 634, but this seems to be a candid response. Furthermore, as Judge Brieant later noted, the whole idea of peremptory challenges is at odds with the necessity of giving reasons. Id. at 638.

C. Jury Selection Principles

1. Intuition versus Discrimination

The simple, direct approach to jury selection of seeking jurors who would convict could be described as discriminatory, either by intent or by impact. However, for hundreds of years trial attorneys have been attempting to identify, from the nature of the case and the parties, what sort of jurors would be favorable or unfavorable to their position and then, on the basis of the limited information available from the voir dire, determine where each prospective juror would fit. In making such determinations, the attorney must attribute personal characteristics to an individual on the basis of his being a member of an identifiable group. This is, of course, an exercise in raw bias. The result is often incorrect, because, inter alia, the group leanings are misperceived or the individual’s allegiances misjudged. However, along with the trial lawyers’ intuitive reaction to a prospective juror’s personality, it is the major basis for exercising peremptory challenges. This was clearly recognized by the Supreme Court in Swain v. Alabama, supra, 380 U.S. at 220-21, 85 S.Ct. at 835-36.

2. Peremptories after McCray

The issue before us is whether the McCray opinion bars all such challenges or only those directed against a “cognizable group in the community,” McCray, supra, 750 F.2d at 1131-32, such as a minority race. While logic might dictate that the same sort of considerations would be applicable to the challenging of white jurors when there is a white defendant, such was clearly not the intention of that decision. Indeed, the majority noted that “[i]n most communities a majority of those eligible for jury duty are white; and as a practical matter, the prosecution does not peremptorily excuse whites simply because they are whites.” Id. at 1121. We see no indication in that decision that the court intended reciprocal treatment for white defendants, since the opinion is overwhelmingly concerned with the rights of minorities.

The attack in the instant petition is to the challenging of white jurors who, in most parts of the country, are an overwhelming majority of the community, not a “cognizable group.” Of course, if a broad interpretation is given to that phrase, most veniremen who are challenged belong to some undesirable cognizable group in the eyes of the challenger. To take an extreme example, a challenge to a juror who had been accused of the same crime as the defendant on trial, but who denies that this would effect his or her impartiality, could be viewed as an attempt to exclude a cognizable group.

The McCray rule also ignores the fact that many challenges are used not for the negative purpose of getting rid of unfriendly jurors but for the positive purpose of obtaining those believed to be favorable to the challenger’s side. Moreover, a prosecutor is not going to waste a peremptory because of racial animus unless he believes that the particular prospective juror may have a strong affinity toward the defendant. As Judge Meskill’s McCray dissent points out,

the actual issue in this case is not whether a prosecutor may systematically exclude members of some group from sitting on juries but whether a prosecutor may use peremptory challenges to exclude individual members of a group because she believes that in that particular case they may be biased in favor of members of the defendant’s group. A competent prosecutor will only strike a member of the defendant’s group in situations where she believes the possibility of that individual having a group bias— even if very small — is greater than the possibility of some other prospective juror having a bias.

Id. at 1138 (footnote omitted).

It is this Court’s belief that, although well-intentioned, the McCray ruling raises innumerable practical difficulties that outweigh its usefulness. See King v. County of Nassau, 581 F.Supp. 493, 501-02 (E.D.N. Y.1984) (discussing problems anticipated as a result of the Eastern District’s decision in McCray). It is not clear from the McCray opinion how extensive the “discriminatory” use of peremptory challenges must be to warrant a mistrial. If, for example, the prosecutor uses four of his six challenges against minority jurors and establishes a non-racial reason for two or three of these challenges, must a mistrial be granted because one or two challenges cannot be supported by a claim amounting to quasi-cause? For that matter, if there is only one Oriental juror and the prosecutor challenges that one without a non-racial explanation, should the court declare a mistrial? The majority opinion seems most concerned with total exclusion, and one out of one leaves none. Certainly, if the defendant is Oriental, it would seem to be a violation under the McCray decision. Moreover, the McCray ruling is applicable only to the prosecutor, thereby giving the defense a substantial advantage. The use of peremptory challenges was also meant to insure the rights of the prosecution. Swain v. Alabama, supra, 380 U.S. at 219-20, 85 S.Ct. at 835-36.

Besides the problems adverted to above, numerous other practical considerations arise. The first and perhaps most sweeping question is whether the identifiable group concept must be one that relates to the defendant and the case on trial. (Eg., can a white defendant object to the challenging of black jurors?) Even if connected to the particular defendant on trial, how is the court to know at the outset which identifiable groups have a relationship to a case? (Depending on how broadly the term is construed, there may be thousands of identifiable groups.) In a particular case, it may not be apparent until the evidence is in what groups are significant to the case. Even if we require all peremptory challenges to be made in writing, so as to keep a record of who challenged which jurors, how are we going to determine whether a previously challenged juror belonged to an identifiable group? Even when there is an obvious advance signal, such as minority defendants, are we to question tan-skinned jurors who have been challenged to determine whether they belong to “cognizable groups” so as to keep accurate records of the challenges used?

III. CONCLUSION

Considering all of the practical difficulties in enforcing the McCray opinion, it is certainly not the wish of this Court to expand its application. Since we do not believe it was the intention of the majority in McCray to consider white persons a “cognizable group,” and since there is no clear indication that the intention of the court was to prohibit affirmative bias (i.e., the selection of black jurors who might be more accepting of the black witness with the criminal record), this Court holds that McCray does not mandate granting this habeas corpus petition. The petition is, therefore, denied. However, in light of Judge Brieant’s contrary conclusion in Roman v. Abrams, supra, we will issue a certificate of probable cause to appeal.

SO ORDERED.

      . In fact, the State Supreme Court issued no written opinion to accompany its July 12, 1984, decision. Thus, we can only speculate on its reasoning. See Titone, Federal Habeas Corpus— Understanding State Procedure, N.Y.L.J., May 9, 1983, at 1, and this Court’s letter response, N.Y. L.J., May 25, 1983, at 2.

      . The Second Circuit affirmed the district court's finding that McCray had made a prima facie showing of discriminatory use of peremp-tories but remanded the case for hearing to afford the state an opportunity to rebut the claimed discrimination.

      . The McCray majority felt that Swain "created a myth that peremptory challenges are sacrosanct.” McCray, supra, 750 F.2d at 1130.

      . It is not impossible that, in following the majority rule in McCray, Judge Brieant was attempting to demonstrate the pitfalls apparent in the literal application of that decision.

      . For example, at page 130 of the transcript, we have this question:
      Q. Finally, Judge, I mean it, you told the jurors during selection in this case, didn’t you, that it was your opinion that jurors who were most like or that people who were most like the person they are to judge would in that situation tend to be more fair?
      This question was objected to and the objection was sustained on the ground that "the record speaks for itself." Throughout the hearing, it was apparent that the prosecutor was having great difficulty recalling what he did and why he did it. The alternative, stopping jury selection for mini-hearings, could avoid this, but at the expense of disrupting the trial.

      . Judge Brieant rejected this as describing "the doughnut without mentioning the hole that goes with the doughnut.” Roman v. Abrams, supra, 608 F.Supp. at 635.

      . The McCray opinion suggests that the failure of the trial court to inquire into the prosecutor’s reasons for peremptorily challenging minorities could cause the appellate courts to order a new trial without further proceedings.

      . For example, if, as happened recently in a case before me, defense counsel challenges the prosecutor’s use of challenges claiming he has attempted to purge the jury of Jewish jurors, how are we to tell whether those jurors already excused were in fact Jewish?


author: MUIR, District Judge.

text:
    UNITED STATES of America v. William T. SMITH.
    Crim. No. 84-00156-04.
    United States District Court, M.D. Pennsylvania.
    Oct. 17, 1985.

      James J. West, Asst. U.S. Atty., Harrisburg, Pa., for U.S.
    John Rogers Carroll, Thomas C. Carroll, Carroll & Carroll, Philadelphia, Pa., for William T. Smith.
   OPINION

MUIR, District Judge.

I. Introduction and Procedural History.

Currently pending before this Court is William T. Smith’s motion for judgment of acquittal and in the alternative for a new trial. On October 22, 1984, a sixteen count indictment was returned against two corporate and five individual Defendants including William T. Smith. Smith’s trial began on March 26, 1985 and ended on June 24, 1985 when the jury returned a verdict of guilty on counts 1, 2, 3, 7, 9, and 12 through 15. Count 1 charged conspiracy; counts 2, 3, and 7 charged mail fraud under 18 U.S.C. § 1341; counts 9 and 12 through 15 charged interstate transportation in aid of racketeering under 18 U.S.C. § 1952(a)(3).

II. Evidence Regarding Multiple Conspiracies.

Smith argues that he is entitled to a judgment of acquittal or a new trial because the Government did not prove a single conspiracy as charged in count 1 of the indictment but instead it proved several smaller conspiracies. He also contends that there is a variance between the events charged in the indictment and the proof at trial which was prejudicial to him.

The Court must grant a motion for judgment of acquittal “... if the evidence is insufficient to sustain a conviction” of the offenses charged in the indictment, Rule 29(a) Fed.R.Crim.P. The standard of review is whether, viewing the evidence in the light most favorable to the Government, the jury’s verdict is supported by substantial evidence. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), United States v. De-lerme, 457 F.2d 156,160 (3d Cir.1972). The issue on a motion for acquittal is whether this Court has reason to believe that there was sufficient evidence on which reasonable persons could find Smith guilty beyond a reasonable doubt; United States v. Pratt, 429 F.2d 690 (3d Cir.1970), United States v. Leach, 427 F.2d 1107 (1st Cir. 1970).

In considering a motion for a new trial, “The Court ... may grant a new trial ... if required in the interest of justice.” Rule 33 Fed.R.Crim.P. Unlike a motion for judgment of acquittal, the motion for new trial is based upon the weight of the evidence, and the Court may weigh evidence and consider the credibility of witnesses. United States v. Pepe, 209 F.Supp. 592, 595 (D.Del.1962), aff'd per curiam, 339 F.2d 264 (3d Cir.1964). The motion for new trial is addressed to the discretion of the Court and the power to grant a new trial on the ground that the verdict is against the weight of the evidence should only be invoked in exceptional cases. Wright, Federal Practice & Procedure: Criminal 2d § 553.

Smith contends that the evidence showed that there were three separate conspiracies embracing Allegheny County, the City of Pittsburgh, and the Commonwealth of Pennsylvania and that Smith was not a member of the two conspiracies involving Allegheny County and the City of Pittsburgh. Smith alleges that the evidence showed three separate mail fraud conspiracies rather than the one conspiracy described in Count 1 of the indictment and also showed three separate conspiracies to violate 18 U.S.C. § 1952 which prohibits interstate transportation in aid of racketeering, rather than the single conspiracy charged in count 1 of the indictment. The evidence was that Smith and others attempted as part of one overall scheme to influence state and local public officials to award FICA recovery contracts to a California corporation, XET, Ltd. d/b/a/ CTA Ltd., and that Smith was working for and on behalf of the corporation with John Tor-quato who was the moving force behind the scheme. Torquato testified that Smith knew about and assisted Torquato’s activities in bribing public officials, that bribes were paid to and goods and services rendered to members of the Scanlon family, Robert Rade Stone, President of the Pittsburgh City Council, and other officials in connection with said scheme. Smith knew that stock in the corporation known as COM-MAX was being delivered to state, city, and county officials as bribes.

Smith was aware of the dealings between the individual Defendants and public officials involved in various FICA recovery contracts. The State Director of Social Security for Public Employees, David Herbert, approved all three contracts and received stock in COM-MAX Corporation. James Scanlon, an Allegheny County official, recommended CTA to the City of Pittsburgh and to the State of Pennsylvania and received free travel and promises of employment for himself and family members. James Scanlon was also instrumental in introducing John Torquato and Defendant Smith to Eugene Scanlon, his brother and Senate Minority leader of the Senate of the Commonwealth of Pennsylvania, who assisted in passage of legislation to facilitate the FICA recovery by CTA on behalf of Pennsylvania school entities.

Torquato testified that he discussed with Smith that COM-MAX stock or stock options had been delivered to David Herbert, the above-mentioned State Director, Robert Rade Stone, President of the Pittsburgh City Council, Scott R. O’Donnell, Chief Clerk to the Commissioners of Allegheny County, and Ronald Schmeizer, Director of Finance of the City of Pittsburgh. It would appear that these public officials were told by Torquato that the money from the state, county, and city FICA recoveries would be used to fund and enhance the COM-MAX Corporation. When there were rumors of an investigation, Defendant Smith created yet another company known as Application Software Systems to conceal the prior delivery of COM-MAX stock to those public officials and to make it more difficult to establish a connection between COM-MAX and CTA. Smith formed this company with full knowledge of its purpose in furthering the single conspiracy. The evidence introduced during Smith’s trial showed beyond a reasonable doubt that Smith was guilty of involvement in one conspiracy involving the awarding of FICA recovery contracts to CTA, Ltd.

Smith argues that there is a variance between the events as charged in the indictment and the proof offered at trial which prejudices a substantial right of Smith and cites United States v. Camiel, 689 F.2d 31 (3d Cir.1982) as authority for this argument. Camiel is distinguishable from this case. In Camiel, the Court held that the evidence showed the existence of two or perhaps even four distinct schemes to defraud, that the evidence was insufficient to support a finding of one scheme and entered a directed verdict of acquittal. The Court applied the doctrine set forth in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) which held that in order for a trial judge to reverse a jury conviction in a mail fraud scheme case, (1) there must be a variance between the indictment and the proof and (2) the variance must prejudice some substantial right of the Defendant. The evidence presented during the Smith trial does not support the argument that there was a variance between the indictment and the proof. The evidence showed beyond a reasonable doubt that there was a single conspiracy; thus, there was no prejudicial variance between the facts set forth in the indictment and the proof at trial.

III. The Court’s Charge Regarding Single and Multiple Conspiracies.

Smith contends that he is entitled to a judgment of acquittal or a new trial because this Court’s additional charge to the jury on June 14, 1985 violated Fed.R. Crim.P. 30 and was prejudicial to Smith.

On June 11 and 12,1985, this Court ruled on counsels’ requested points for charge. We informed counsel that we would cover Smith’s point 30 and Smith’s supplemental point 9 which involve single and separate conspiracies. Transcript, Volume 38, p. 5, and Volume 39, p. 3. Smith’s point 30 is as follows:

If you find that John R. Torquato, Jr. and others were involved in a separate conspiracy or conspiracies regarding the Allegheny County and City of Pittsburgh FICA recovery contracts in which the defendant, William Smith, was not a participant, then your verdict as to William Smith on the entire indictment must be not guilty, (authorities omitted)

Defendant Smith’s supplemental point 9 is as follows:

1. The indictment alleges the existence of a conspiracy to commit mail fraud and, additionally, charges mail fraud itself. An essential element of both charges is that government prove beyond a reasonable doubt the existence of a single scheme to defraud and that the single scheme to defraud not be substantially different from the scheme charged in the indictment.
2. To convict on this aspect of the charges, each of the jurors must find that the government has proved beyond a reasonable doubt that the defendant participated in the same single scheme to defraud and the scheme to defraud in which the defendant is found to have participated is the same scheme as the fraudulent scheme alleged in the indictment. The defendant may not be convicted unless he was a willing, knowing and active participant in the particular scheme to defraud alleged in this indictment.
3. Unless the jury finds beyond a reasonable doubt that the government has proved the existence of a single scheme to defraud, as charged in the indictment, the defendant must be acquitted of the pertinent counts, (authorities omitted) Counsel gave their closing arguments on

June 12 and 13, 1985 and during those closings, no counsel raised the issue of multiple and single conspiracies. On June 13, 1985, this Court instructed the jury that the indictment charges a single scheme to defraud and Smith must have participated in such a scheme or one not substantially different, and that unless the single scheme had been proven, Smith must be acquitted of the pertinent counts. We instructed the jury as follows:

The indictment alleges the existence of a conspiracy to commit mail fraud, and additionally, charges mail fraud itself. An essential element of both charges is that the Government must prove beyond a reasonable doubt the existence of a single scheme to defraud as charged in the indictment.
A Defendant may not be convicted unless he was a willing, knowing and active participant in the particular scheme to defraud alleged in this indictment. Unless the jury finds beyond a reasonable doubt that the Government has proved the existence of a single scheme to defraud, as charged in the indictment, the Defendant must be acquitted of the pertinent counts. The single scheme charged includes the obtaining of FICA recovery contracts from Allegheny County, the City of Pittsburgh and also the Commonwealth of Pennsylvania.
If you find that Mr. Torquato and others were involved in separate conspiracies concerning or regarding Allegheny County or City of Pittsburgh, or Pennsylvania School District FICA recovery contracts, and that the Defendant was not a participant in one or more of these separate conspiracies, then your verdict as to the Defendant on the entire indictment must be not guilty.
By separate conspiracy, I mean a conspiracy that has no connection with another conspiracy except for the fact that John Torquato, Jr., or one or more other individuals, played a role in both conspiracies.
You may, however, find that the Defendant participated in the conspiracy charged in the indictment even if that conspiracy encompassed three related subconspiracies involving different groups of individuals.

Transcript Volume 40 pp. 153-154.

At the conclusion of the charge, counsel for Smith took exception to the portion of the charge that defined separate conspiracies. Transcript Volume 40, p. 188. Smith’s counsel propounded an instruction which he desired directed towards defining separate conspiracies but which in our view was defective. Because it was late in the day and it was inappropriate for the jury to start its deliberations at that time, we directed counsel to confer and attempt to agree upon adequate definitions of single and separate conspiracies for a supplemental instruction the following morning. Transcript Volume 40, p. 188-193.

On June 14, 1985, we conferred with all counsel and in the absence of an agreed instruction, we then gave the following new instruction to the jury on the issue of multiple conspiracies:

“THE COURT: At the end of the Court’s instructions there are always requested changes, and we find that some of the requests that have been made do have merit.
We will give you some further instructions.
Yesterday, I talked very briefly about separate conspiracies. I’m going to ask you to disregard what was said then because we have an elaboration and a correction of it.
* sfc * * * *
A single conspiracy is one in which the Defendants and those with whom they are charged with conspiring share a common goal of the conspiracy set forth in the indictment. Separate conspiracies, although they may have common elements, common participants, common means, some common objectives, or other common factors, but which lack the critical element of common objectives of the conspiracy on the part of all of the participants, do not qualify as a single conspiracy.
* ^ * * *
The gist of a criminal conspiracy may involve numerous transactions and the fact that conspirators individually or in groups perform different tasks in pursuing a common goal does not necessitate a finding of several conspiracies.
Even if a small group is at the heart of an unlawful agreement, others who knowingly participate with core members to achieve a common goal may be members of a single conspiracy.
Accordingly, you may find that a master conspiracy for the obtaining of FICA recovery contracts by a bribery and fraud existed and that more than one subsidiary scheme was involved. You should review the indictment and determine if the master conspiracy charged therein has been proven.

Transcript Yol. 41, pp. 34-36. Parenthetically, the transcript shows the use of the article “a” before “bribery and fraud”. The Court is of the view that the article was never stated and that the transcript is in error.

Smith contends that the giving of the new instruction on June 14, 1985 violated Rule 30 of the Federal Rules of Criminal Procedure and that he was prejudiced by the new instruction. Rule 30 of the Federal Rules of Criminal Procedure states that “The Court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury.” Rule 30 requires the Court to inform counsel of its proposed action upon counsel’s requested points for charge; it does not require the court to give counsel further information about the contents of the charge. Our instruction to the jury regarding conspiracy on June 14, 1985 was not a departure from the requirements of Rule 30. Even if giving the new instruction had violated Rule 30, failure to comply with the requirements of Rule 30 does not ipso facto mandate reversal, Hamling v. United States, 418 U.S. 87, 135, 94 S.Ct. 2887, 41 L.Ed.2d 87 (1974). The question is whether or not the charge in its entirety was fundamentally prejudicial to Smith. United States v. Hartman, 409 F.2d 198 (3d Cir.1969), United States v. Wander, 601 F.2d 1251 (3d Cir.1979).

Smith contends that he was prejudiced by the Court’s giving of the new instruction on June 14,1985 because Smith’s counsel did not have the opportunity to know before his closing argument that an instruction would be given regarding single and multiple conspiracies. This is not a correct statement of what took place at trial. The concepts of single and multiple conspiracies had been raised by counsel for Smith himself in his proposed point #30 and supplemental point # 9. The new instructions related to an issue counsel had been advised would be covered in the charge.

Smith also contends that he was prejudiced because the new instruction altered the Government’s theory of the conspiracy such that the indictment failed to inform Smith of the nature of the charges against him. The new charge was not a change in the Government’s theory that there was one conspiracy and that Smith was a participant in this conspiracy, but was an elaboration on the concept of single and multiple conspiracies.

There are additional reasons why the new instruction did not prejudice Defendant Smith. First, the charge as a whole after the new instruction was given covered the area of conspiracy completely and was an accurate statement of the law. This Court’s primary reason for giving the new instruction was to prevent jury confusion.

Second, it was defense counsel who took exception to the portion of the charge that addressed separate conspiracies and requested an additional instruction defining them. The Court concluded that there might be confusion on the part of the jury regarding separate conspiracies primarily as a result of Smith’s counsel’s exception. In an effort to avoid confusion on the part of the jury, the Court gave the new instruction on the issue of multiple conspiracies. Since Smith was not prejudiced in any way by our giving the new instruction, his request for a judgment of acquittal or for a new trial on this basis will be denied. In short, this issue about a defective charge on single and multiple conspiracies is, in my opinion, a cured Clupea harengus.

IV. The Court’s Charge Regarding Termination of the Conspiracy.

Smith argues that our refusal to give an instruction that the mail fraud objective of the alleged conspiracy ended June 22, 1984 and that the travel act objective of the conspiracy terminated with the last act of travel, June 7, 1984 entitles Smith to a new trial. Smith contends that “... it was error to allow the jury to find that the defendants participated in conspiratorial conduct after the principal object of conspiracy had terminated by the final mailing or act in furtherance of interstate travel.” Smith’s post-trial brief at unnumbered page 20. Smith relies on the case of United States v. Oxman, 740 F.2d 1298, 1304 (3d Cir.1984) to support his argument. In Oxman the Court held that a conspiracy to violate a substantive prohibition in a federal statute ends when the unlawful object has been accomplished. The conspiracy charged in the Oxman indictment ended in June of 1979. The Defendant in that case requested an instruction charging that the jury must have found that the Defendant’s membership in the conspiracy terminated before June of 1979. The Court in Oxman refused the requested instruction and gave a charge stating that the overt act must have occurred between November, 1976 and January 1981. In Oxman, the charge thus permitted the jury to find an overt act beyond the termination date of the conspiracy set forth in the indictment.

The facts of United States v. Oxman are significantly different from the facts in this case. The indictment in United States v. Smith alleges that the conspiracy began on or about January 1, 1983 and continued up to the date of the indictment which was October 22,1984. The indictment in United States vs. Smith alleges continuing offenses which contemplate continual uses of the mails and facilities of interstate commerce up to the date of the indictment, whereas the Oxman case dealt with a conspiracy which had ended on a fixed date.

The charge proposed by Smith (Smith’s supplemental point No. 2) was not given because it was not applicable to the facts of this case. A Court may properly refuse to submit to the jury a requested instruction which incorrectly states the law applicable to the case or would mislead the jury, United States v. Alvarez, 519 F.2d 1036 (3d Cir.1975), or which presents a theory not supported by the trial record, United States v. Bertucci, 333 F.2d 292 (3d Cir.1964). The indictment did not charge that the mail fraud objective of the alleged conspiracy ended on June 22, 1984 or that the travel act objective of the conspiracy ended on June 7, 1984; thus, Smith was not prejudiced by this Court’s refusal to give his proposed supplemental instruction No. 2. This Court properly instructed the jury that

A conspiracy ends when its principal objective is accomplished, when it is abandoned, or when otherwise terminated by some affirmative act. Any agreement to conceal a completed crime made after a crime is committed does not — let me emphasize — does not extend the life of a conspiracy.
Therefore, I charge you that in the absence of an express initial agreement to conceal between the conspirators, you may not find a Defendant guilty of a conspiracy from the mere fact that he agreed to conceal a completed crime or engaged in acts of concealment following the completion of the crime.
Now, that’s a bit difficult and it’s vital and I’m going to read it to you again. (The Court then repeats the instruction.)

Transcript, Volume 40, p. 152. Smith’s argument for a judgment of acquittal or for a new trial on the basis that we improperly instructed the jury regarding termination of a conspiracy is without merit.

V. Sufficiency of the Evidence on the Substantive Counts.

The substantive counts of which Smith was found guilty are three mail fraud counts (Counts 2, 3, 7) and five counts of committing interstate transportation in aid of racketeering (Counts 9, 12, 13, 14, 15). Smith argues that there is insufficient evidence to support the guilty verdicts on these counts.

a. The Mail Fraud Counts.

Count 2 of the indictment charges that Smith and other Defendants caused a letter to be sent from John Torquato to Defendant Smith in which Torquato describes a job on the Pennsylvania Municipal Retirement Board which David Herbert wished Smith and Torquato to obtain for him. Herbert was the State Director of Social Security for Public Employees and was the highest state official in Pennsylvania empowered to authorize FICA refunds. The testimony of Torquato, Herbert, and Kincaid indicated that Herbert was assisting CTA in obtaining FICA recovery contracts because Smith and Torquato had promised to obtain a better state job for him. The letter which is the subject of Count 2 of the indictment was clearly in furtherance of the conspiracy to influence public officials.

Count 3 of the indictment charges that Smith and other Defendants caused Janice Kincaid to send a letter to Smith containing a check for $1,000 on March 7, 1984 payable to the Republican State Committee of Pennsylvania. The evidence shows that the check was sent at the request of Smith to influence the awarding of the FICA recovery contract to CTA relating to the Pennsylvania school districts. Torquato testified that he had directed Kincaid to make the contribution from her own personal account at Smith’s suggestion. Tor-quato later reimbursed Kincaid under the guise of a bonus. The jury could reasonably have found and we are persuaded that the mailing of this check was in furtherance of the conspiracy to influence public officials of which Smith was a participant.

Count 7 of the indictment charges that on June 22, 1984, Smith and other Defendants caused a letter to be sent from Tor-quato to Joseph Oravitz, Executive Director of the Pennsylvania School Board’s Association, enclosing a draft of an opinion from the Chief Counsel to the Treasurer of the Commonwealth. The opinion indicated that CTA had an exclusive contract to recover overpaid FICA funds on behalf of all Commonwealth school entities. The evidence showed that Oravitz was the individual who would have notified the School Boards of the Commonwealth of the fact that CTA had been declared the exclusive FICA recovery agent for all Commonwealth School entities. The fact that this mailing occurred after the contract had been obtained from the Treasurer does not take the mailing beyond the scope of the scheme charged in the indictment as Smith argues. The scheme charged in the indictment had not terminated at the time the letter was sent. Further, the money to pay the bribes promised to the Treasurer of the Commonwealth had not been collected and was at least in part dependent on future FICA recoveries.

b. The Travel Act Counts.

Smith argues that Count 9 of the indictment which charges the use of facilities of interstate commerce by Torquato to send a letter to Defendant Smith on December 16, 1983, is not proved because the record does not show any “overt act thereafter” in furtherance of the travel. 18 U.S.C. § 1952 states that

(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to — ...
(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of the acts specified in sub-paragraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.

Most of the overt acts listed in the indictment relating to the state contract for FICA recovery on behalf of the school entities occurred after the mailing of the letter on December 16, 1983. Torquato enclosed with the letter a $10,000 check for Smith’s work on the Allegheny County contract and in the letter gave Smith advice concerning the best way to influence David Herbert. There was more than sufficient evidence for the guilty verdict on Count 9.

Smith argues that the discrete instances of interstate travel by Torquato in violation of 18 U.S.C. § 1952 were not proven because no subsequent overt act was shown to have occurred in relationship to the travel involved in Counts 9, 12, 13, 14, and 15. Smith again raises the argument that this case involved several separate conspiracies and that Smith did not participate in the conspiracy involving Allegheny County. As we held earlier in this opinion, the evidence showed beyond a reasonable doubt the existence of one conspiracy corruptly to influence public officials to award FICA recovery contracts to CTA. Smith was involved in the entire conspiracy not only through his own acts but also through his knowledge of the activities of other participants and acts done knowingly in furtherance of the unlawful goal. It is not necessary that Smith have known all of his co-conspirators or that he have taken part in each and every activity of the conspiracy in order for him to have been convicted of involvement in the conspiracy. United, States v. Grassi, 616 F.2d 1295, 1303 (5th Cir.1980), cert. denied, 449 U.S. 956, 101 S.Ct. 363, 66 L.Ed.2d 220 (1981). The essence of the crime of conspiracy is the agreement to commit an unlawful act or acts, United States v. Hutto, 256 U.S. 524, 528, 41 S.Ct. 541, 543, 65 L.Ed. 1073 (1921), United States v. Klein, 515 F.2d 751, 753 (3d Cir.1975). The Government has met its burden of proving that Smith entered into an agreement with the specific intent to advance the unlawful goal of attaining for CTA FICA recovery contracts through bribery and fraud.

VI. The Inadi issue; Testimony of John R. Torquato, Jr. Regarding Conversations with Egidio Cerulli.

During the trial Smith objected to the introduction of testimony of John Torquato concerning Torquato’s conversations with Egidio Cerulli on the grounds that the testimony violated the Confrontation Clause of the Sixth Amendment. United States v. Inadi, 748 F.2d 812 (3d Cir.1984), cert. granted, — U.S. —, 105 S.Ct. 2653, 86 L.Ed.2d 271 (1985). The Government believed that Torquato was permitted to testify as to what he heard Cerulli say and this Court permitted the testimony. Smith now argues that the admission of this testimony into evidence was prejudicial and requires the granting of a new trial.

This Court may grant a new trial to Smith “if required in the interest of justice.” Rule 33 Fed.R.Crim.P. A motion for new trial should only be granted where the error at trial is prejudicial. United States v. Smith, 520 F.2d 1245 (8th Cir. 1975). “Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.” Rule 52 Fed. R.Crim.P.

During the trial Torquato testified that he had contacted and then met with Mr. Cerulli, an official in the Democratic Party, to discuss the contract for FICA recovery in Westmoreland County. Torquato testified that Cerulli said “... he [Cerulli] would appreciate it if we would contribute to the Democrats”. Transcript, Volume 4, pp. 73-74.

Smith contends that this testimony of Torquato violates the requirements of the Confrontation Clause as expressed in Unit ed States v. Inadi, 748 F.2d 821 (3d Cir. 1984), cert, granted, — U.S. —, 105 S.Ct. 2653, 86 L.Ed.2d 271 (1985). In Inadi, the Court held that the Government must show, as foundation for admitting out-of-court statements of a non-testifying co-conspirator under Fed.R.Ev. 801(d)(2)(E), that the co-conspirator is unavailable to testify in order for the testimony to comply with the Sixth Amendment’s Confrontation Clause. The Confrontation Clause grants the accused the right to be confronted with the witnesses against him. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The holding in Inadi is based in part upon Ohio v. Roberts, 448 U.S. 56, 63-65, 100 S.Ct. 2531, 2537-39, 65 L.Ed.2d 597 (1980) in which the Supreme Court held that “In the usual case ... the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” 448 U.S. at 65, 100 S.Ct. at 2538.

The Government argues that Torquato’s testimony regarding his conversations with Cerulli was not hearsay because it was not offered to prove the truth of any matters asserted by Cerulli, but only to show the fact that the conversation and solicitation occurred between Cerulli and Torquato. United States v. Bohr, 581 F.2d 1294 (8th Cir.1978). Rule 801(d)(2)(E) of the Federal Rules of Evidence provides that “A statement is not hearsay if — ... The statement is offered against a party and is ... (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” The fact that an out-of-court statement is not being offered to prove the truth of the matter asserted by the statement brings the statement outside of the definition of hearsay and also beyond the scope of the Confrontation Clause, i.e. if the statement of the out-of-court declarant was not being offered to prove the truth of the matter asserted by this statement, the admission of the statement into evidence would not violate the Confrontation Clause. Since Cerulli’s comments were not offered for the truth of their contents, Cerulli's statements were not in violation of the Confrontation Clause as interpreted in Ohio v. Roberts, 448 U.S. 56,100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), and United States v. Inadi, 748 F.2d 812 (3d Cir.1984).

Further, even if we were to find that the introduction of Torquato’s testimony regarding Cerulli’s statements was in violation of the Confrontation Clause, Smith would not be entitled to a new trial because he was not prejudiced in any way by the admission of this evidence. Smith had the opportunity to cross-examine Torquato concerning the statements of Cerulli. Further, the Defendants opposed the giving of a cautionary instruction that the evidence was being admitted solely for the purpose of showing the solicitation of political contributions by Cerulli and not for the truth of showing the involvement of other individuals named by Cerulli. Transcript, Volume 4, pp. 65-71. Most significantly, Torquato’s testimony concerning Cerulli’s statements was a relatively short and unimportant aspect of the Government’s case; Cerulli said nothing about Smith’s involvement in the scheme to bribe public officials; in fact, Smith’s name was not mentioned by Cerulli at all. Transcript, Volume 4, pp. 72-74.

VII. Alcohol Treatment Records.

Smith contends that this Court’s denial of his motions to order disclosure of records of John Torquato and Judy Ellis maintained by alcoholism treatment programs deprives him of his Sixth Amendment right of cross-examination. 42 U.S.C. § 290dd-3 protects the § 290dd-3 records of a patient involved in an alcoholism treatment program conducted, regulated, or assisted by a department or agency of the United States. Such records may only be disclosed under certain circumstances, including “if authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor.” 42 U.S.C. § 290dd-3(b)(2)(C). According to this statute and the regulations published at 42 C.F.R. § 2.61, the records can only be disclosed by a court order based upon a showing of good cause and a finding that the public interest and the need for disclosure outweigh the injury to the patient, to the physician-patient relationship, and to the treatment services. 42 U.S.C. § 290dd-3(b)(2)(C), 42 C.F.R. § 2.64(d). If other competent evidence or sources of information are available, the Court should ordinarily deny the application. 42 C.F.R. § 2.64(e).

During and after a hearing held on April 19, 1985, we weighed the factors indicated in the statute and regulations and determined that the Defendants had not shown good cause for disclosure of the records, and that the public interest and need for disclosure did not outweigh the injury to the patients, to the physician-patient relationship, and to the treatment services. See this Court’s written Orders of April 24, 1985, Docket # 144, and of May 14, 1985, Docket # 159. Smith’s opportunity to cross-examine Torquato and Ellis was not impaired by non-disclosure of the records. There was full evidence that Torquato was an alcoholic and he was subjected to extensive cross-examination regarding his use of alcohol. It is highly unlikely that anything in the records from the alcoholism treatment program could have provided any additional basis for attacking his credibility. See Bell v. State, 385 So.2d 78 (Ala.Cr.App.1980); United States v. Graham, 548 F.2d 1302 (8th Cir.1977). The same is true as to Ellis. Smith was not prejudiced by the denial of his motions for records and is not entitled to a new trial on this basis.

VIII. The Eleven-Person Jury.

Smith argues that he is entitled to a judgment of acquittal or new trial because his constitutional rights were violated when this Court permitted the return of a verdict by eleven jurors. The trial in this case lasted for approximately three months. After the charge the remaining alternate was discharged. On the morning of the fourth day of jury deliberation, one of the jurors was involved in a serious automobile accident while en route to the courthouse and was hospitalized. The Court and counsel consulted with her physician by telephone and learned that it would be months before she could deliberate with her fellow jurors. Defense counsel refused to stipulate to a verdict of eleven jurors. After hearing argument by all counsel regarding the Court’s options, we invoked Rule 23(b) of the Federal Rules of Criminal Procedure and permitted the verdict to be returned by the remaining 11 jurors.

Rule 23(b) provides that

... if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors.

Rule 23(b) Fed.R.Crim.P. The Notes of Advisory Committee on Rules explain that the relevant amendment to Rule 23(b)

addresses a situation which does not occur with great frequency but which, when it does occur, may present a most difficult issue concerning the fair and efficient administration of justice. This situation is that in which, after the jury has retired to consider its verdict and any alternate jurors have been discharged, one of the jurors is seriously incapacitated or otherwise found to be unable to continue service on the jury. The problem is acute when the trial has been a lengthy one and consequently the remedy of mistrial would necessitate a second expenditure of substantial prosecution, defense and court resources.

Notes of Advisory Committee on Rules. The event which arose in this case is precisely the type of situation for which Rule 23(b) was designed. We applied the Rule because of the enormous investment of time and energy in this case by the parties, the court, the jurors, and the public.

The Advisory Committee cites the case of Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) as authority for the pertinent amendment to Rule 23(b). The Court in Williams v. Florida held that the Sixth Amendment right to a jury trial does not include a requirement that the jury consist of 12 persons. In Williams, the Court upheld Florida's refusal to impanel a jury of more than six persons as provided by Florida law and held that a jury of six did not violate the Defendant’s Sixth Amendment rights as applied to the States through the Fourteenth Amendment. Having upheld a six-person jury, the Supreme Court would probably uphold the occasional use of an eleven-person jury pursuant to Rule 28(b) Fed.R.Crim.P. The Court in Williams opened the door to the amendment of Rule 23(b) Fed.R.Crim.P. in stating that

We do not mean to intimate that legislatures can never have good reasons for concluding that the 12-man jury is preferable to the smaller jury, or that such conclusions — reflected in the provisions of most States and in our federal system — are in any sense unwise. Legislatures may well have their own views about the relative value of the larger and smaller juries, and may conclude that, wholly apart from the jury’s primary function, it is desirable to spread the collective responsibility for the determination of guilt among the larger group Our holding does no more than leave these considerations to Congress and the States, unrestrained by an interpretation of the Sixth Amendment that would forever dictate the precise number that would constitute a jury.

Williams v. Florida, 399 U.S. 78 at 103, 90 S.Ct. 1893 at 1907.

Smith fails to cite persuasive authority for his contention that Rule 23(b) is unconstitutional. None of the Court of Appeals’ opinions in this circuit cited by Smith addresses the issue at bar. In our view, Rule 23(b) Fed.R.Crim.P. is constitutional. Our reliance upon Rule 23(b) Fed. R.Crim.P. did not violate Smith’s rights under the Sixth Amendment or under Article III, Section 2 of the United States Constitution.

IX. The Evidence of the Laventhol-Horvath Contract.

Smith argues that the admission of the evidence of the Laventhol-Horvath Contract was irrelevant and prejudicial; however, Smith does not address this argument in any post-trial brief. Laventhol-Horvath is a nationally known accounting firm. The evidence showed that it was willing to enter into a contract to perform the identical FICA recovery services for the Pennsylvania school entities at a substantially lower price than CTA under the contract actually awarded to CTA. This evidence bears on whether or not bribery was involved in the awarding of the contract to CTA; therefore, the evidence of the contract was relevant and properly admitted.

X. The Testimony of Carol Teufel and the Admissibility of Rebuttal Testimony.

Included in his list of reasons for acquittal and in the alternative for a new trial, Smith lists several items which he does not address in any brief. He contends that the testimony of Carol Teufel was irrelevant and prejudicial and that this Court erred in admitting as rebuttal the testimony of James P. Connor, Ralph Tobelman, David Cole, Carol Curry, Gary Seifert, Edward Allen, Kathleen Destralo, and Leo Morris. Since these contentions are not addressed in a brief we assume that Smith is no longer relying upon them as a basis for his post-trial motions. Additionally, we are of the view that such contentions are without merit.

The grounds listed by Smith in his post-trial motions viewed individually and in total do not form the basis for the entry of a judgment of acquittal or for awarding Smith a new trial. An appropriate order will be entered.


author: DORSEY, District Judge.

text:
    Beverly WILKEY v. PYRAMID CONSTRUCTION COMPANY and Majestic Construction Company, Inc.
    Civ. No. H-85-93 (PCD).
    United States District Court, D. Connecticut.
    Oct. 17, 1985.
    Robert Bourne, and Peter Harrington, Certified Student Interns, Philip D. Tegeler, Civil Litigation Clinic, Hartford, Conn., for plaintiff.
    Eliot B. Gersten, Gersten & Gersten, Hartford, Conn., for defendants.
   RULING ON MOTION TO DISMISS

DORSEY, District Judge.

Plaintiff, Beverly Wilkey, was employed by defendants, Pyramid Construction Company and Majestic Construction Company, Inc. Defendants are alleged to own and manage the Sutton Park Apartments in Bloomfield, Connecticut. Plaintiff worked as a part-time rental secretary, who received applications from, and showed and rented apartments to, prospective tenants. Plaintiff, who is white, alleges that it was defendants’ policy to discriminate on the basis of race by depriving black applicants of the opportunity to view and rent apartments on an equal basis with whites. Plaintiff alleges that her opposition to defendants’ asserted policy of racial discrimination, and her unwillingness to adhere to it, caused or contributed to her eventual discharge some ten weeks after she took the position.

Plaintiff seeks money damages and in-junctive relief. Her four-count complaint asserts violations of: (1) Title VIII of the Civil Rights Act of 1968 (also known as the Fair Housing Act), 42 U.S.C. §§ 3601-3631 (“FHA”); (2) the Civil Rights Act of 1866, specifically 42 U.S.C. §§ 1981-1982 (“Civil Rights Act”); and (3) Connecticut’s common law of wrongful discharge, as recognized in Sheets v. Teddy’s Frosted Foods, 179 Conn. 471, 427 A.2d 385 (1980), and Magnan v. Anaconda Indus., 193 Conn. 558, 479 A.2d 781 (1984). Defendants have moved to dismiss all claims. For the reasons below, the motion to dismiss is granted in part and denied in part.

A. FHA Claim

The FHA declares it to be “the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.” 42 U.S.C. § 3601. To give effect to that policy, § 3604(a) makes it unlawful “[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex or national origin;” § 3604(d) proscribes “representing] to any person because of race, color, religion, sex, or national origin that any dwelling is not available for inspection, sale or rental when such dwelling is in fact so available.” Section 3617 protects those who exercise rights guaranteed by the FHA:

It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section ... 3604 ... of this title. This section may be enforced by appropriate civil action.

Plaintiff’s first count is predicated on § 3617. She charges that defendants “coerc[ed], intimidat[ed] and threatened] the plaintiff on account of her having aided or encouraged black persons in the exercise and enjoyment of their rights granted by 42 U.S.C. § 3601 et seq.” Second Amended Complaint at 1126. She alleges that defendants’ coercion, intimidation and interference took the form of reducing her job responsibilities, and then terminating her employment. Id. at 1117. Defendants’ attacks on the viability of the § 3617 claim contained in Count I are without merit.

Defendants first assert that plaintiff has failed adequately to allege steps taken which “aided or encouraged” others in the exercise of their rights. Although defendants acknowledge plaintiff’s claim that she accepted applications from, and showed and rented apartments to, black prospective tenants, defendants characterize that involvement as merely “performing her function as an employee.” Defendants' Memorandum at 4. According to defendants, the FHA requires those who would invoke its protection to take a more “active role” in furthering its objectives— such as, for example, by “recruit[ing] potential black tenants to the location----” Id. (emphasis added). No authority supportive of this proposition has been cited or discovered. “Aid” or “encouragement” under § 3617 does not require anything more — qualitatively or quantitatively — than what plaintiff did here. On its face and as construed by the courts, § 3617 is not limited to plaintiffs whose “aid” or “encouragement” to persons exercising fair housing rights is given outside the confines of their job descriptions.

Nor is there even colorable merit in defendants’ attempt to challenge plaintiff’s standing in this case by seeking to minimize or distinguish the relevance of the decisions in Tokaji v. Toth, 1 Eq. Opp. Hsing Rptr. (PH) f 13,679 (N.D.Ohio 1974) (recognizing a § 3617 claim in favor of apartment building superintendents allegedly forced to vacate their apartments after expressing dissatisfaction with landlord’s policy not to rent to blacks); Smith v. Stechel, 510 F.2d 1162 (9th Cir.1975) (recognizing a § 3617 action in favor of apartment managers fired for renting to blacks and Mexican-Americans); and Vercher v. Harrisburg Housing Auth., 454 F.Supp. 423, 424 (M.D.Pa.1978) (noting that a plaintiff “discharged for his efforts to secure fair housing rights for others ... would clearly have a cause of action under § 3617”). While defendants are not incorrect in noting, Reply Memorandum at 3-4, that the cited authorities do not expressly determine the issue of standing, they hardly leave the question open. Only a highly artificial reading of such decisions — a reading which would suggest that the authoring courts were oblivious to concerns of judicial administration — could permit the argument that these holdings are of no consequence in determining the preliminary standing question.

These authorities will not be so read, and § 3617 is held to be invocable by a rental agent or secretary claiming to have been harassed, demoted and ultimately terminated for resisting and refusing to execute her employer’s allegedly racially discriminatory housing policies. Accordingly, the motion to dismiss Count I is denied.

B. Sections 1981 and 1982

In addition to her FHA claim, plaintiff asserts federal claims under two provisions of the Civil Rights Act codified respectively at 42 U.S.C. § 1981 (guaranteeing all citizens an equal right to contract), and 42 U.S.C. § 1982 (guaranteeing all citizens an equal right to hold and convey property). Following the admonition that “it would be most incongruous to give these two statutes a fundamentally different construction,” Runyon v. McCrary, 427 U.S. 160, 190, 96 S.Ct. 2586, 2604, 49 L.Ed.2d 415 (1976) (Stevens, J., concurring), the Supreme Court has held that housing discrimination practices impinging on equality of contract and property rights may be viola-tive of §§ 1981 and 1982 independently of whether the practices are proscribed by the FHA. See, e.g., Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413, 441-43 & n. 78, 88 S.Ct. 2186, 2189, 2204-05 & n. 78, 20 L.Ed.2d 1189 (1968).

Thus, the remedies provided by §§ 1981 and 1982 are also independent from those provided by the FHA, id. at 416-17, 88 S.Ct. at 2190-91, and may be utilized to grant appropriate relief in a case within the coverage of both the FHA and the Civil Rights Act. The two statutes differ as to the award of attorney’s fees and punitive damages. The FHA generally limits punitive damages in private housing discrimination cases to $1000, and awards attorney’s fees only to prevailing plaintiffs found financially unable to assume them. 42 U.S.C. § 3612(c). A plaintiff who prevails on a claim under the Civil Rights Act is entitled to attorney’s fees without regard to financial status, and punitive damages are not subject to any cap such as the $1000 limitation under the FHA. 42 U.S.C. § 1988.

The FHA and the Civil Rights Act also approach differently the question of standing, particularly with regard to claims by “indirect” or third-party victims of discrimination, as plaintiff appears to be. Compare, e.g., Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972) (indirect victims’ standing upheld under the FHA, Congress having therein expressed an intention to confer standing as broad as the Constitution would allow, i.e., requiring solely that plaintiff be injured “in fact” without “prudential” limitations on the exercise of constitutional jurisdiction), and Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979), with Warth v. Seldin, 422 U.S. 490, 512-14, 95 S.Ct. 2197, 2212-13, 45 L.Ed.2d 343 (1975) (denying standing in a Trafficante -type indirect claim raised under 42 U.S.C. §§ 1981, 1987 and 1983, inasmuch as in said provisions Congress left intact traditional “prudential” limitations on the exercise of federal jurisdiction over claims raised by those whose individual rights would not be vindicated by granting the relief requested).

Defendants’ principal argument regarding §§ 1981 and 1982 is that the standing of an indirect victim of racial discrimination under the Civil Rights Act requires a connection with “an injury to a ... property right ... protected by the express language of the statute ... such as the right to contract [§ 1981] or to deal in real estate [§ 1982].” Reply Memorandum at 7. Defendants appear to assert that because plaintiff acted as an agent for others (i.e., defendants) who owned the property which was the subject of the rental contracts and real estate transactions at issue here, she has suffered no injury to any property or contractual right of her own, and is insufficiently “connected” with the property or contract rights of any putative minority homeseekers to maintain this action.

Our Court of Appeals has recognized that a white person claiming to have suffered job-related reprisals as a result of his efforts to vindicate the rights of nonwhites had standing under § 1981. DeMatteis v. Eastman Kodak, 511 F.2d 306 (2d Cir.1975). See also, Winston v. Lear-Sigler, Inc., 558 F.2d 1266 (6th Cir.1977) (a white plaintiff has standing to sue his former employer under § 1981 for discharging him in alleged retaliation for protesting the alleged discriminatory firing of a black coworker). By virtue of the impairment of her employment status which plaintiff alleges to have been the indirect result of defendants’ discriminatory policies, plaintiff has sufficient standing to pursue her § 1981 claim.

Plaintiff’s § 1982 claim, however, is subject to a more substantial standing objection. In Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969), a white homeowner was held to have standing to pursue a § 1982 claim against a neighborhood association recreational park which had blocked the assignment of his membership share to his black tenant. Unlike the homeowner in Sullivan, plaintiff cannot demonstrate that a property right or interest of her own is involved in this ease.

Accordingly, the motion to dismiss Count II (§ 1981 claim) is denied. The motion as to Count III (§ 1982) claim is granted.

C. Wrongful Discharge

Defendants have moved that the court dismiss plaintiff’s wrongful discharge count, a state law claim brought pursuant to the court’s pendent jurisdiction. Defendants assert that plaintiff has failed to allege facts sufficient to state a claim upon which relief can be granted under Connecticut’s evolving law of wrongful discharge. Plaintiff argues forcefully that her state law claim falls within the contours of the exception to the general rule that employment contracts for an indefinite term are terminable at will. See Sheets v. Teddy’s Frosted Foods, 179 Conn, at 471, 427 A.2d 385.

Notwithstanding plaintiff’s showing, the court deems it inappropriate in this instance to exercise its discretion to hear the state law claim. The Supreme Court has instructed federal judges regarding pendent jurisdiction that “[njeedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of «applicable law.” United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). The federal claims raised by plaintiff provide a vehicle for the presentation of that part of plaintiff’s claim susceptible to treatment as a wrongful discharge claim. Moreover, the remedies available to her under the federal causes of action are as broad, if not broader, than the remedies available for the state law claim. The exercise of pendent jurisdiction, therefore, would be “needless” in this case, and likely to engender “jury confusion in dealing with the differing legal theories of relief.” Id. at 727, 86 S.Ct. at 1139.

Accordingly, defendants’ motion to dismiss Count IV is granted.

SO ORDERED.

      . Plaintiff's motion for leave to file a second amended complaint, which elaborates upon certain factual allegations and adds a claim under 42 U.S.C. § 1981, is granted. Rule 15(a), Fed.R. Civ.P.

      . Defendants have moved in the alternative for a more definite statement of plaintiff’s various claims. The motion is denied. Plaintiff has adequately pleaded to permit defendants to frame an intelligible response. Rule 12(e), Fed. R.Civ.P.

      . Defendants refer to Meadows v. Edgewood Management Corp., 432 F.Supp. 334 (W.D.Va. 1977), which, like the instant case, involved a rental agent who was discharged by management allegedly for aiding and encouraging a tenant to exercise rights guaranteed by the FHA. The court found that plaintiff had failed to prove by a preponderance of the evidence that she actually did aid and encourage that particular tenant. However, the court also specifically found "that section 3617 provides a remedy in a situation where a resident manager ... [is] dismissed by [her] employers because of [her] aid or encouragement to tenants in asserting their right to fair housing." Id. at 335. Thus, Meadows is actually better authority for plaintiff than defendants, because had the rental agent in that case been able to prove her factual allegations, her status as a rental agent would not have prevented the court from sustaining her § 3617 claim.

      . Section 1981 provides:
      All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishments, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
      Section 1982 provides:
      All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.