author: NORTHROP, Senior District Judge.

text:
    Sheldon D. CLARK, et al. v. UNITED STATES of America.
    Civ. A. No. N-85-584.
    United States District Court, D. Maryland.
    June 4, 1985.
    Armin U. Kuder, Ralph J. Temple and Philip B. Zipin, of Kuder, Temple & Smollar, P.C., Washington, D.C., counsel for plaintiffs.
    Larry D. Adams, Asst. U.S. Atty., and J. Frederick Motz, U.S. Atty., Baltimore, Md., for the Dist. of Maryland; Michael J. Salem, of the U.S. Dept, of Justice, Washington, D.C., counsel for defendant.
   NORTHROP, Senior District Judge.

The plaintiffs bring this action under I.R.C. § 7422 seeking an order directing the United States to refund a portion of their 1982 and 1983 paid taxes. Plaintiffs claim that the portion of their taxes going to foreign security assistance to the government of El Salvador and to Nicaraguan rebel groups in armed opposition to the Marxist-Leninist Sandinista regime was illegally assessed and spent in violation of the Foreign Assistance Act of 1961, 22 U.S.C. § 2304, the Agricultural Trade Development and Assistance Act of 1954, 7 U.S.C. § 1691, and various international treaties, charters and declarations.

The United States seeks to dismiss this suit under Fed.R.Civ.P. 12(b)(1) and (6) for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. The Court is in receipt of the parties’ memoranda. No hearing is necessary. Local Rule 6. The Court will grant the defendant’s motion as discussed herein-below because the plaintiffs lack standing in this instance as taxpayers to challenge the specific disbursement of foreign security assistance funds.

Although the plaintiffs claim the United States has violated a variety of domestic laws and international agreements, among them only the Foreign Assistance Act creates anything resembling an enforceable limitation on the disbursement of foreign aid to specific entities. See Crockett v. Reagan, 558 F.Supp. 893, 896 (D.D.C.1982), affd 720 F.2d 1355 (D.C.Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 3533, 82 L.Ed.2d 839 (1984). The Act reads in part:

Except under circumstances specified in this section, no security assistance may be provided to any country the government of. which engages in a consistent pattern of gross violations of internationally recognized human rights.

22 U.S.C. § 2304(a)(2).

To prove that the government of El Salvador has engaged in a consistent pattern of human rights violations, the plaintiffs have produced two eyewitness affidavits, and have promised that other witnesses will testify to violations at trial.

The plaintiffs, however, are without standing to challenge the actions of the United States under section 2304 of the Foreign Assistance Act. The instant suit, despite the plaintiffs’ status as taxpayers and the requested tax refund, is not a challenge to the taxing powers of the United States but to the spending power. The plaintiffs allege the United States has illegally spent legitimately collected public funds. As such, this suit must meet the taxpayer standing criteria of Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), and Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

“Standing” is the requirement that the complaining party “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.” Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979). In Frothingham, supra, the plaintiff sought to enjoin the spending of public funds under the federal Maternity Act. She challenged the Act as unconstitutional. She asserted her standing to enjoin these allegedly unconstitutional expenditures because as a taxpayer she would suffer injury by the requirement to pay extra taxes to support the program. The Supreme Court, however, denied the taxpayer standing to sue because she had not shown “some direct injury as the result of the [expenditure] and not merely that [she] suffers in some indefinite way in common with people generally.” Frothingham, supra, 262 U.S. at 488, 43 S.Ct. at 601. “If one taxpayer may champion and litigate such a cause, then every taxpayer may do the same ... in respect of every ... appropriation act and statute that requires the outlay of public money____ The bare suggestion of such a result, with its attendant inconveniences, goes far to sustain the conclusion ... that a suit of this character cannot be maintained.” Id. at 487, 43 S.Ct. at 601. Obviously, the instant taxpayers propose to bring such a suit.

A narrow exception to this strict standing requirement was created by Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). The exception, however, is only available when the taxpayer can establish that the challenged expenditure exceeds specific constitutional limitations other than general grounds of due process imposed upon the taxing and spending power. Id. at 102-103, 88 S.Ct. at 1953-1954; see also, Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 478-81, 102 S.Ct. 752, 761-63, 70 L.Ed.2d 700 (1982). The instant plaintiffs do not propose to specifically challenge the constitutionality of the expenditures at issue.

Rather, the plaintiffs would void the disputed tax portion because it violates a statute, the Foreign Assistance Act. The mere assertion of statutory grounds, however, only raises the issue of whether plaintiffs have standing under the statute asserted. In United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974), the Supreme Court rejected a taxpayer’s standing to challenge under 50 U.S.C. § 403j(b) the asserted failure of Congress to require the President to provide more detailed reports of CIA expenditures. Id. at 175, 94 S.Ct. at 2945. The statute did not provide standing for taxpayer suits because it did not in itself confer any standing to a private party to seek its enforcement. Instead, as a regulation solely affecting conduct between the coordinate legislative and executive branches, only those branches could bring suit to enforce it.

In the instant case, the taxpayer is apparently challenging the asserted failure of both Congress and the President to follow the guidelines of the Foreign Assistance Act in providing aid programs to Central America. The Foreign Assistance Act, however, specifically section 2304, does not create standing for any taxpayer or any private party to sue for its enforcement. It is a section clearly enacted to effect the relationship between the Congress and the President over disbursing foreign aid funds in light of an official policy of concern for human rights. The only parties with standing to seek adjudication under section 2304 are the executive and legislative branches. One need only read the plain language of the section to reach this conclusion. The section requires the executive branch to satisfy certain conditions made by Congress before foreign aid can be disbursed to foreign governments or entities.

Furthermore to grant a private party standing to sue for restraint of either branches’ actions would violate Article III of the Constitution. All questions “relevant to the standing inquiry must be answered by reference to the Art. III notion that federal courts may exercise power only ... when adjudication is ‘consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the judicial process.’ ” Allen v. Wright, — U.S. —, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984), quoting Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 1951, 20 L.Ed.2d 947 (1968). To allow these taxpayers to sue for enforcement of section 2304 would directly confront the traditional limitations upon the judicial branch within Article III. As Chief Justice Burger stated in United States v. Richardson, supra:

Any other conclusion would mean that the Founding Fathers intended to set up something in the nature of an Athenian democracy or a New England town meeting to oversee the conduct of the National Government by means of lawsuits in federal courts. The Constitution created a representative Government with the representatives directly responsible to their constituents____ Lack of standing within the narrow confines of Art. III jurisdiction does not impair the right to assert their views in the political forum or at the polls.

418 U.S. at 179, 94 S.Ct. at 2947 (emphasis in original).

These taxpayers cannot therefore challenge under the statutes and laws asserted herein the legality of any portion of their 1982 and 1983 taxes. Their request for a refund is thereby denied and this action dismissed.

      . Thus, in Crocket v. Reagan, supra, the only reported case under section 2304, the court proceeded to reach and dismiss the suit on the political question issue only because the plaintiffs were members of Congress.


source: Caselaw Access Project

author: CURTIN, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, National Association for the Advancement of Colored People, Inc., Elijah Feaster, Maria Fuller, Beverly Johnson, Darwin Jones, Doris Lewis, David Malone, Robert Middlebrooks, Harrison Mullen, William Stenson, William Westbrook and Nathaniel Wright, Plaintiff-Intervenors, Sherman Abdallah, Richard Cruz, Marilyn Mack, Joanne Rizzo, Christine Salamone, Deidre Wallace and Gwendolyn Williams, Plaintiff-Intervenors, William Blake, Joseph Coniglio, Cindy Diem, Charles Flynn, James Howe, Don Just, James P. Kennedy, Michael J. Krzeminski, Timothy McDonald, Maureen Oakley, Patrick S. O’Mara, Paul Skinner, Kevin Veith, Thomas Vivian, Ronald Zaprzal and Taras Znaczko, Plaintiff-Intervenors, Afro-American Police Association, Inc., Danny Williams, John Dublin, John Clarence Eberhart, Timothy Irving Baldon, Mark Anthony Rice and Vernon Keith Beaty, Plaintiff-Intervenors, v. CITY OF BUFFALO, a Municipal Corporation, and County of Erie, Defendants. UNITED STATES of America, Plaintiff, v. CITY OF BUFFALO, a Municipal Corporation, Defendant.
    Nos. CIV-73-414C, CIV-74-195C.
    United States District Court, W.D. New York.
    June 5, 1985.
    William Bradford Reynolds, U.S. Dept, of Justice, Civ. Rights Div., Washington, D.C. (David L. Rose, and Richard S. Ugelow, Washington, D.C., of counsel), for plaintiff U.S.
    Magavern & Magavern, Buffalo, N.Y. (James L. Magavern, Buffalo, N.Y., of counsel), for plaintiff-intervenors Nat. Ass’n for the Advancement of Colored People, Inc., et al.
    Cravath, Swaine & Moore, New York City (Paul C. Saunders, New York City, of counsel), for plaintiff-intervenors Afro-American Police Ass’n, et al.

      Leonard F. Walentynowicz, Buffalo, N.Y., for plaintiff-intervenors William Blake, et al.
    Sara 0. Naples, Corp. Counsel of the City of Buffalo, Buffalo, N.Y. (Michael B. Risman, Buffalo, N.Y., of counsel), for defendant City of Buffalo.
    Kenneth Kimmerling, New York City, for amicus curiae Puerto Rican Legal Defense & Educ. Fund, Inc.
   CURTIN, Chief Judge.

The Supreme Court’s decision in Firefighters Local Union No. 1784 v. Stotts, — U.S. —, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984), has prompted the United States to file a motion for a prospective modification of a remedial hiring decree filed by the court on November 23, 1979. That decree was based upon this court’s finding (after a lengthy trial) that the City of Buffalo, through its police and fire departments, unlawfully discriminated against blacks, Spanish-surnamed Americans [SSA] and women. See, United States v. City of Buffalo, 457 F.Supp. 612 (1978). The provisions of the decree at issue here are those which require the City to “seek to achieve an interim goal of making 50% of all entry level and/or police officer [and firefighter] appointments from among qualified black and SSA applicants.” Decree at If 3. The decree provides that the hiring goals are to be observed until the minority composition of the police and fire departments equals the percentage of minorities in Buffalo’s labor force, or until the City’s selection procedures are found by the court, after a hearing, to be valid. Decree at ¶ 7. Thus, the decree expressly provides that the hiring goals are temporary. The Department of Justice, which prosecuted this case against the City and which was the principal draftsman of the November 1979 hiring decree, now contends that Stotts requires an end to preferential hiring and that the 1979 decree be modified accordingly. The court rejects this reading of Stotts and denies the government’s motion.

An extended discussion of the impact of Stotts is not necessary. The United States Court of Appeals for the Second Circuit has determined that Stotts does not bar race-conscious relief of the sort in effect in the present cases. EEOC v. Local 638 ... Local 28 of Sheet Metal Workers, 753 F.2d 1172 (2d Cir.1985). The Court of Appeals observed that Stotts was concerned mainly with a district court’s interference with a bona fide seniority plan protected by section 703(h) of Title VII, 42 U.S.C. § 200e-2(h). Id. at 1186.

In these cases, the government conceded at oral argument that the Second Circuit’s decision in Local 638 constrains this court to deny the instant motion. I agree that the position taken by the Second Circuit is contrary to that urged by the government and requires that the motion be denied. I would only add that the differences between Stotts and the cases pending here are so great that there should be no serious question concerning the impact of Stotts. The district court in Stotts authorized relief which permitted minority firefighters with less seniority to displace majority firefighters who had more seniority and were currently working. This was in clear violation of the rule announced in Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), that courts cannot award competitive seniority to persons who are not actual victims of past discrimination. No one currently holding a position in Buffalo’s police and fire departments is in jeopardy of losing his or her position as a result of the hiring order in effect in these cases. Thus, our cases do not present a Stotts problem.

Finally, the court wishes to reemphasize some facts which are common to many cases of this sort. The hiring order which is in effect here is the result of a finding that the City’s selection procedures for the position of firefighter and police officer discriminated against identifiable groups protected by the United States Constitution and federal statutes. At a lengthy trial, the City was unable to prove that the discriminatory impact of its selection procedures was justified by the relationship between its selection procedures and the requirements of police work and firefighting.

The hiring decree expressly provides that the race-conscious hiring goals must end when the City proves that its current selection procedures are valid. The City has undertaken to prove the validity of its procedures for selecting firefighters, and the court shall decide that matter shortly. The City has not as yet requested that the court hold an evidentiary hearing concerning the validity of the police officer selection procedures. Meanwhile, the hiring order now challenged by the Department of Justice only permits the appointment of candidates who have passed the City’s qualifying examinations. The hiring decree affects the City’s selection procedures only to the extent that candidates must sometimes be selected out of rank order to satisfy the minority hiring goals.

Since the selection procedures used by the City have not yet been shown to be accurate predictors of job performance, it is, at this juncture, somewhat presumptuous to say that an injustice is done every time a candidate is selected out of rank order. This court is quite ready to end its involvement in these cases when the City proves that its selection procedures are valid. Indeed, the law forbids the continuation of hiring goals beyond the time when valid selection procedures are in effect, except in special circumstances. United States v. City of Buffalo, 633 F.2d 643, 648 (2d Cir.1980).

The motion to modify the remedial hiring order by striking the minority hiring goals is denied.

So ordered.

      . Other courts have also held that race-conscious remedial action is permissible under Title VII. See, e.g., Vanguards of Cleveland v. City of Cleveland, 753 F.2d 479 (6th Cir.1985); Kromnick v. School District of Pennsylvania, 739 F.2d 894 (3d Cir. 1984); Deveraux v. Geary, 596 F.Supp. 1481 (D.Mass.1984).

      . Interestingly, the Department of Justice still vigorously opposes the City’s continued insistence upon selecting police officer and firefighter candidates in rank order based upon performance on qualifying examinations.


author: EDWARD WEINFELD, District Judge.

text:
    Edwin B. MISHKIN, as Securities Investor Protection Corporation Trustee of Parr Securities Corp. and Mitchell A. Lowenthal, as Temporary Receiver of Parr Investor Services, Corp., Plaintiffs, v. KENNEY & BRANISEL, INC.; William J. Kenney; Raymond J. Branisel; and John J. Regan, Jr., Defendants.
    No. 85 Civ. 3791 (EW).
    United States District Court, S.D. New York.
    June 5, 1985.

      Cleary, Gottlieb, Steen & Hamilton, New York City, for plaintiffs; Thomas J. Moloney, Edwin B. Mishkin, Joanne Zack, Mitchell A. Lowenthal, New York City, of counsel.
    Cadwalader, Wickersham & Taft, New York City, for defendants Kenney & Branisel; Earl H. Nemser, Howard R. Hawkins, Barry J. Dichter, New York City, of counsel.
   OPINION

EDWARD WEINFELD, District Judge.

By order dated May 6, 1985, this Court appointed a temporary receiver of Parr Securities Corp. and later its affiliate Parr Investor Services, Inc. (collectively “Parr”). By further order dated May 17, 1985, the Court granted an application of the Securities Investor Protection Corporation for appointment of a permanent trustee to liquidate Parr Securities Corp. and, accordingly, referred the liquidation proceeding to the Bankruptcy Court. Estimating that the liabilities of Parr exceed $16 million while its combined assets total only $1 million, the temporary receiver and the permanent trustee (collectively “the Trustees”) thereafter commenced this action against the defendants Kenney & Branisel, Inc. (“K & B”), Parr’s former parent, and William J. Kenney, Raymond J. Branisel, and John J. Regan, Jr., K & B’s principal directors and officers.

Under twelve causes of action set forth in the complaint, the Trustees essentially seek to void various transfers of funds from Parr to defendants allegedly effected through manipulative and fraudulent practices by defendants in concert with one Gregory Herbert, a principal of Parr, and which funds were diverted to the defendants’ accounts. Plaintiffs also seek to enjoin the further disposition of assets of K & B through the defendants alleged continuing fraudulent conduct in “winding down” K & B’s business and liquidating its trading positions. Plaintiffs assert that the transfers already made to defendants and those about to be made by defendants to their favored creditors are in derogation of the rights of the Parr creditors represented by the Trustees.

The fraudulent conduct attributed to the defendants and Herbert centered about repurchase transactions, known as “repos,” as to which the underlying securities either were not segregated for the benefit of customers or did not exist. Herbert, prior to the commencement of this action, disclosed his fraudulent conduct in the affairs of Parr to the Securities and Exchange Commission (“SEC”) and entered into a consent judgment against continuing such illegal activities.

The total amount the Trustees seek to recover from all defendants for the benefit of the Parr creditors exceeds $16 million. However, K & B’s net asset position is inadequate not only to meet its acknowledged creditors’ claims but to meet those of the Trustees.

The Trustees assert various claims under three federal statutes: the Bankruptcy Code, the Securities and Exchange Act of 1934, and the Racketeer Influenced and Corrupt Organizations Act. The claims under the Bankruptcy Code, 11 U.S.C. §§ 544, 547, and 548, and the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b) and 78t(a), are sufficient to establish subject matter jurisdiction.

Simultaneously with the commencement of this action, the Trustees applied, pursuant to Fed.R.Civ.P. 64 and Article 62 of the New York Civil Practice Law and Rules (“CPLR”), for an order of attachment as to such property held by or for the benefit of defendants that would satisfy plaintiffs’ demand for judgment up to some $8.6 million. This part of plaintiffs’ application focuses on recovery of certain voidable preferences and fraudulent transfers from Parr to defendants allegedly reflected on Parr’s books and records and confirmed by other sources. In addition, pursuant to Fed.R. Civ.P. 65 and section 279 of the New York Debtor and Creditor Law (“DCL”), the Trustees have applied for a preliminary injunction restraining defendants from making any fraudulent conveyances or transfers of property held by them or for their benefit. The Trustees contend that provisional relief is necessary to preserve the status quo because the defendants are likely to continue to dissipate and dispose of their remaining assets, thereby irreparably injuring plaintiffs by frustrating satisfaction of any judgment to which they are ultimately entitled. The corporate defendant, appearing by its attorneys, consented to a temporary restraining order pending the hearing and determination of this motion, and its counsel also were heard in opposition thereto, as were attorneys for two of three creditors of K & B, to whom funds were about to be transferred on account of their respective claims.

The affidavits, pretrial depositions, documents, and results of a time-limited but intensive investigation by the Trustees amply support the charges of fraudulent conduct and transfer of properties to the defendants, acting in concert with Gregory Herbert, the sole principal of Parr, who, as already noted, entered into a consent judgment in an action instituted against him by the SEC. So, too, there can be little doubt that the defendants are currently engaged in efforts to dispose of their assets. Their past fraudulent conduct and their current actions indicate an intent to defeat and defraud the rights of Parr and its creditors and to impede the Trustees in their efforts to enforce any judgment they might obtain. The defendants’ course of conduct, if not restrained, threatens to denude K & B of its rapidly diminishing assets. The claims asserted by the Trustees against K & B and those against its principals, the individual defendants, in lesser but still substantial amounts, appear to be meritorious and over and above all counterclaims, if any, as may be asserted by any defendant. It is significant that no defendant, corporate or individual, has negated the serious charges of fraudulent conduct made by the Trustees. In these circumstances, plaintiffs have discharged their burden of showing a probability of success on the merits of their claims. Thus, the continued fraudulent depletion of assets by the defendants and the announcement that, unless restrained, K & B intends to use its remaining and limited assets to pay those of its creditors whom it prefers over others, warrant issuance of an order of attachment in favor of the Trustees under CPLR §§ 6201(3) and 6212(a) and the granting of injunctive relief pursuant to DCL § 279(a).

It is no answer, as was urged upon argument of this motion on behalf of three of defendants’ preferred creditors, two national banks and a municipality, that they are innocent of wrongful conduct; that they, too, were good faith participants in repurchase agreements and were victimized by defendants no less than those for whom the Trustees seek recovery; and that they are financially responsible and, upon recovery by the Trustees of any judgment, are subject to suit by the Trustees. This remedy, of course, would entail tremendous delay and require the Trustees to commence three separate actions in three separate jurisdictions, with the needless duplication of time, effort, and expense to the litigants and an unnecessary waste of judicial resources.

Ashland Oil, Inc. v. Gleave and other cases cited in opposition to the Trustees’ application for relief do not require a different result. Each case upon its facts differs from those presented on this application. The Trustees here have made the requisite showing under New York law entitling them to an order of attachment against the assets and properties of the defendants and have established their right to preliminary injunctive relief pending a trial. They have established that there are “actual or pending transfers or dispositions of assets” by defendants. In fact, to deny the Trustees the requested relief would permit the defendants to dispose of the balance of their meager and inadequate assets by transferring them outside the jurisdiction and thereby frustrate the enforcement of any judgment the Trustees may obtain. In these circumstances the preliminary relief plaintiffs seek is entirely appropriate.

It must be borne in mind that the three preferred creditors of the defendants, the National Bank of North Carolina, the National Bank of Georgia, and DeKalb County, a municipality, are not named as defendants in this action and no charge is made against them. The charge of fraudulent conduct as to the transfers, past as well as contemplated, is made against K & B and its principals, the defendants herein. The fact that the banks and the county are innocent of wrongful conduct does not entitle them to defeat the Trustees’ claim against the defendants in this action, whose wrongful conduct against other creditors, whom the Trustees represent, is the subject of this action. The victimized creditors of Parr for whom the Trustees speak were also good faith participants in the repo transactions. The Trustees’ having abundantly established, based upon defendants’ past conduct, an intent on the part of the latter to defraud and frustrate the enforcement of any judgment in the Trustees’ favor warrants the attachment and injunctive relief pending a trial.

The Trustees shall furnish a bond in the sum of $100,000.

Submit proposed order on twenty-four hours’ notice.

      . Securities & Exchange Comm’n v. Parr Securities Corp., No. 85 Civ. 3451, Consent Judgment (S.D.N.Y. May 6, 1985).

      . Parr Securities, No. 85 Civ. 3451, Consent Order (S.D.N.Y. May 17, 1985); 15 U.S.C. § 78eee(b)(3), (b)(4).

      . Parr Securities, No. 85 Civ. 3451, Consent Judgment (S.D.N.Y. May 6, 1985).

      . Notwithstanding the Court’s order referring the Parr Securities liquidation proceeding to the Bankruptcy Court, this Court retains original subject matter jurisdiction under the Bankruptcy Code. See 15 U.S.C. § 78eee(b)(2), (b)(4); 28 U.S.C. § 1334; see also 28 U.S.C. § 157(d).

      . Immediately prior to the filing of this disposition, defendant K & B filed an amended answer asserting counterclaims against the Trustees in the amount of some $12 million. Whereas plaintiffs' application for an order of attachment arises from some $8.6 million in claims, K & B argues, plaintiffs have failed to satisfy the requirement of CPLR § 6212(a) ■ that "the amount demanded from defendant exceeds all counterclaims known to the plaintiff." The Court notes that the total amount of plaintiffs’ claims exceeds $16 million (trebled to $48 million under the RICO claim), though the attachment order is limited to a lesser amount; that plaintiffs have not conceded K & B’s counterclaims are just, see Irving Trust Co. v. Gomez, 550 F.Supp. 773, 774 (S.D.N.Y.1982); see Shearson Hayden Stone, Inc. v. Scrivener, 480 F.Supp 256, 259 (S.D.N.Y.1979); and that K & B’s amended answer is signed by its counsel, who make the allegations upon which the defendants’ counterclaims are asserted. The Court again notes the absence of a single affidavit by any defendant setting forth any evidentiary matter disputing the specific allegations of fraudulent conduct attributed to them.

      . 540 F.Supp. 81 (W.D.N.Y.1982).

      . Id. at 84.

      . See In re Feit & Drexler, Inc., 760 F.2d 406, 416 (2d Cir.1985).

      . See 7A Weinstein, Korn, & Miller, New York Civil Practice, f 6201.12, at 62-35 to 62-36 (1984).


author: REYNOLDS, Chief Judge.

text:
    Joseph W. WOIDA and Mary M. Woida, Plaintiffs, v. UNITED STATES of America, Defendant.
    Civ. A. No. 85-C-108.
    United States District Court, E.D. Wisconsin.
    June 6, 1985.
    Joseph & Mary Woida, pro se.
    Joseph P. Stadtmueller, U.S. Atty., Milwaukee, Wis., Thomas D. Sykes, Trial Atty., Tax Div., U.S. Dept, of Justice, Washington, D.C., for defendant.
   DECISION AND ORDER

REYNOLDS, Chief Judge.

This is an action for refund of a percentage of a $500.00 penalty assessed under 26 U.S.C. § 6702. Federal jurisdiction is based on 28 U.S.C. § 1346(a)(1). Presently before the Court is the defendant United States’ motion for summary judgment. The motion is granted.

The following facts are not in dispute. Plaintiffs Joseph and Mary Woida filed an Internal Revenue Service (“I.R.S.”) Form 1040 for the year ending December 31, 1983. The form is signed by them and dated April 16, 1984. It was accompanied by a completed I.R.S. Schedule A, a leaflet bearing the heading “Do You Know What Your Tax Dollar Buys?,” a second leaflet quoting a Quaker Declaration to Charles II, and a three-page letter to the I.R.S. The Form 1040 appears to be filled out properly except that on line 38, which is where the amount of tax is to be entered, plaintiffs wrote in the amount of $1,168.00 and indicated that this amount was taken from the tax tables in the Form 1040 Instructions. In fact, this amount was not taken from the tax tables. As they explained in the letter, the plaintiffs had withheld an amount purporting to represent sixty-four percent of their computed tax liability. The letter also stated that the plaintiffs had determined that sixty-four percent of their tax dollars would go to military spending, and their religious beliefs prevented them from killing and being party to killing. The letter made references to the “threat of nuclear holocaust,” the “lesson of Nuremberg” and a proposed “World Peace Tax Fund.” Neither the form nor the letter reflects the correct amount that should have been entered on line 38.

The I.R.S. assessed a frivolous return penalty of $500.00 and notified the plaintiffs of the assessment. Pursuant to § 6702, plaintiffs paid the I.R.S. $75.00, which is fifteen percent of the penalty, and filed a claim for a refund. On their claim form, they argued that they were being unlawfully punished for enclosing their explanatory letter with their Form 1040. They contended that this violated their First Amendment rights to freedom of speech and freedom to practice the religion of their choosing. They also argued that the required payment of fifteen percent of the penalty as a prerequisite to the administrative claims process was an unlawful deprivation of property without due process of law. The claim was rejected, and this action followed. Plaintiffs ask that I declare § 6702 unconstitutional, order a refund of the $75.00, and enjoin the I.R.S. from imposing frivolous return penalties on others.

The statute under which the penalty was imposed, 26 U.S.C. § 6702, provides as follows:

§ 6702. Frivolous income tax return. (a) Civil penalty. If—
(1) any individual files what purports to be a return of the tax imposed by subtitle A but which—
(A) does not contain information on which the substantial correctness of the self-assessment may be judged, or
(B) contains information that on its face indicates that the self-assessment is substantially incorrect; and
(2) the conduct referred to in paragraph (1) is due to—
(A) a position which is frivolous, or
(B) a desire (which appears on the purported return) to delay or impede the administration of Federal income tax laws,
then such individual shall pay a penalty of $500.
(b) Penalty in addition to other penalties. The penalty imposed by subsection (a) shall be in addition to any other penalty provided by law.

The legislative history of this section was canvassed in Liljenfeldt v. United States, 588 F.Supp. 966, 969-970 (E.D.Wis.1984), and need not be repeated here. In summary, the statute was enacted in response to the growing phenomenon of tax protesters and frivolous tax protest litigation. The statute provides the I.R.S. with a means of dealing promptly with purported tax returns reflecting frivolous positions, so that the tax collection process is not unnecessarily hampered.

The plaintiffs’ primary contention is that their First Amendment rights have been violated. In their claim before the I.R.S., they asserted that they were being punished for including their letter along with their Form 1040. They argued that if they had not included this, the penalty would not have been assessed. Presumably, they mean that had they simply filed the Form 1040 with the incorrect entry on line 38, the I.R.S. would have corrected the error and notified them of any deficiency, and no frivolous return penalty would have been assessed. Yet, because they chose to be forthright about their religious opposition to military spending and why this compelled them to misstate the amount of tax owed, so the argument goes, they are being punished for expressing their religious beliefs.

Yet plaintiffs cannot deny, and indeed they do not deny, that their religious opposition to military spending actually formed the basis for their decision to withhold a portion of their tax liability. Because the statute is directed expressly to persons whose decision to file a substantially incorrect return is due to a position that is frivolous, the issue is whether the plaintiffs’ decision to withhold a portion of their income tax liability due to their religious opposition to war was frivolous.

It was indeed frivolous. The law on this point is quite clear: a taxpayer may not reduce his federal tax liability by an amount that he believes is used by the federal government for military purposes. First v. Commissioner, 547 F.2d 45 (7th Cir.1976) (per curiam). More generally, the law simply does not contemplate that taxpayers may fill out their returns according to their personal moral or religious beliefs. United States v. Lee, 455 U.S. 252, 260, 102 S.Ct. 1051, 1056, 71 L.Ed.2d 127 (1982). There being no law to support plaintiffs’ position, it can be characterized as frivolous, and the I.R.S. properly did so.

The issue of whether § 6702 and the assessment procedure comport with due process was resolved in Liljenfeldt v. United States. This Court therein held that persons who file returns administratively determined to be frivolous do not have a Fifth Amendment right to a preassessment hearing. 588 F.Supp. at 971-972. Plaintiffs ask that I reconsider this decision. I decline to do so, and note simply that the same result has been reached by other courts that have considered the issue.

In opposition to the defendant’s motion, the plaintiffs do not challenge any assertions of fact, but recite their religious opposition to war and quote Henry David Thoreau and Martin Luther King. While the Court does not question plaintiffs’ sincerity, the fact remains that this country’s foreign policy is established through the workings of a government elected by a majority of voters. Plaintiffs have had their opportunity to express their convictions on election day, and whatever forums for the expression of dissent are now available, the tax collection system is not among them.

THEREFORE, IT IS ORDERED that the defendant United States’ motion for summary judgment is granted, and that plaintiffs pay the balance of the penalty with interest thereon at the rate provided by law.

       While I do not make this a part of my finding that their position is frivolous, I note that the plaintiffs’ position is futile. Obviously, withholding a portion of one’s tax liability does not have the effect of withholding all of one’s contribution to military spending. In other words, you cannot give the I.R.S. a pie with a discrete slice removed, you merely give the I.R.S. a smaller pie. The effect is that the government has a smaller sum to parcel out, to the detriment of defense spending and social welfare programs alike.


author: EDELSTEIN, District Judge:

text:
    UNITED STATES of America v. Donald PAYDEN, Defendant.
    No. SS 84 Cr. 566(DNE).
    United States District Court, S.D. New York.
    June 7, 1985.

      Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for plaintiff; John K. Carroll, Asst. U.S. Atty., New York City, of counsel.
    Robert M. Siméis, P.C., New York City, for defendant.
   OPINION AND ORDER

EDELSTEIN, District Judge:

Defendant Donald Payden (“Payden”) has moved, pursuant to Fed.R.Crim.P. 46(a), for an order releasing him on $250,-000 bail. The government has cross-moved for an order of detention or, in the alternative, for an increase in Payden’s bail to $1 million. Because the court finds that Pay-den has attempted to hire a fellow inmate for the purpose of murdering a key government witness in this case and her daughter, Payden’s bail application is denied and the government’s motion for an order of detention is granted.

BACKGROUND

The facts of this case are set forth in this court’s opinion of December 3, 1984, United States v. Payden, 598 F.Supp. 1388 (S.D.N.Y.1984), rev’d, 759 F.2d 202 (2d Cir. 1985), but the court will review the facts pertinent to this motion. Payden was arrested on August 3, 1984 and brought before a Magistrate who set bail at $250,-000.00. Payden was unable to post this amount and was remanded. On August 13, 1984, Payden was named in a two count indictment charging him with conspiracy to violate the federal narcotics laws, in violation of 21 U.S.C. § 846, and distribution and possession with intent to distribute heroin, in violation of 21 U.S.C. § 841. Payden was arraigned on August 23, 1984 and bail was continued. On October 10, 1984, the government filed a superseding indictment, which added a count under 21 U.S.C. § 848, charging Payden with organizing and supervising a continuing criminal enterprise. Payden was arraigned on the superseding indictment on October 17, 1984. Bail was not discussed. On October 31, 1984, the government moved for an order of detention, pursuant to the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq. After a hearing and based on the record in this case, the court granted the government’s motion for pre-trial detention, finding that “no condition or combination of conditions provide sufficient assurance that the defendant will not continue the conduct alleged in the indictment and appear when required.” United States v. Payden, 598 F.Supp. 1388, 1399 (S.D.N.Y. 1984).

On March 26, 1985, the Court of Appeals for the Second Circuit reversed the order of detention, holding that because the detention hearing was not held on October 17, 1984 — the date of Payden’s “first appearance” before the judicial officer after the filing of the first superseding indictment— the new Bail Reform Act was incorrectly applied to Payden. The court remanded the case “for consideration in accordance with the bail laws under which the court was effectively operating at the time of Payden’s arraignment [on the first superseding indictment on October 17, 1984].” United States v. Payden, 759 F.2d 202, 205 (2d Cir.1985).

On April 22, 1985, Payden moved for an order of release on the $250,000.00 bail set on August 3, 1984. The government cross-moved for an order of detention based on new information. The government alleges that sometime in February of 1985, James Turner, then an inmate at the Metropolitan Correctional Center (“MCC”), informed the superintendent of the MCC that Payden had approached him and asked for his assistance in murdering Claudine J. Jones, a government informant. The court held a hearing on the motions from May 9 through May 13, 1985. James Turner was the only government witness at the hearing. Payden elected not to present any testimony on his own behalf.

I. APPLICABILITY OF THE BAIL REFORM ACT OF 1984

The government argues that the Bail Reform Act of 1984 should be applied to Pay-den. The government contends that under the Bail Reform Act of 1984, the government may seek pre-trial detention of a defendant at a time other than the defendant’s “first appearance” before the judicial officer. In support of this contention, the government relies on 18 U.S.C. § 3142(c), which allows a district judge “at any time [to] amend his order to impose additional or different conditions of release,” and 18 U.S.C. § 3148(a), which provides that an order of detention may issue as to any defendant who violates a condition of his release order. The government also refers the court to United States v. Resek, 602 F.Supp. 1126 (S.D.N.Y.1985), in which Judge Keenan held that the government may seek detention of a defendant after his first appearance, provided the government can demonstrate that there exists “dramatic new information.”

The court finds the government’s argument on this point persuasive; however, the mandate issued by the court of appeals in its March 26, 1985 opinion directs the court to apply the law as it existed prior to the enactment of the Bail Reform Act of 1984. The court of appeals held:

The new Bail Reform Act was incorrectly applied to defendant Payden. Rather than permit a special exception to the first appearance requirement as a result of the timing of this case, thereby potentially weakening the procedural fabric of the Act, we reverse the decision of the district court and remand for reconsideration in accordance with the bail laws under which the court was effectively operating at the time of Payden’s arraignment.

United States v. Payden, supra, 759 F.2d at 205. Even though the Bail Reform Act of 1984 provided for immediate repeal of the Bail Reform Act of 1966, see United States v. Zannino, 761 F.2d 52, 54-57 (1st Cir.1985) (Bail Reform Act of 1984 applies to defendant released on bail under 1966 Bail Act); United States v. Angiulo, 755 F.2d 969, 970-974 (1st Cir.1985) (Bail Reform Act of 1984 applies to defendant incarcertated and seeking release on bail at the time of the passage of the new act), this court is bound by the court of appeals mandate that the old law be applied to Payden.

Under the law as it existed prior to October 12, 1984, the court has the power to revoke bail and remand the defendant if it finds that the defendant has threatened witnesses. United States v. Graewe, 689 F.2d 54, 56-57 (6th Cir.1982) (per curiam); United States v. Wind, 527 F.2d 672, 675 (6th Cir.1975); United States v. Gilbert, 425 F.2d 490, 491-92 (D.C.Cir.1969); see Carbo v. United States, 82 S.Ct. 662, 668, 7 L.Ed.2d 769 (1962) (Douglas, Circuit J.); cf. United States v. Kirk, 534 F.2d 1262, 1280-81 (8th Cir.1976) (detention during trial), cert, denied, 430 U.S. 906, 97 S.Ct. 1174, 51 L.Ed.2d 581 & 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091 (1977); United States v. Cozzetti, 441 F.2d 344, 350-51 (9th Cir.1971) (same). Although this power was not expressly provided for in the Bail Reform Act of 1966, there is ample case authority for the court’s extrastatutory power to revoke a defendant’s bail prior to trial in order to insure the orderly and expeditious progress of the trial. Fernandez v. United States, 81 S.Ct. 642, 644, 5 L.Ed.2d 683 (1961) (Harlan, Circuit J.) (“District courts have authority as an incident of their inherent powers ... to revoke bail.”); see United States v. Graewe, supra, 689 F.2d at 57; United States v. Wind, supra, 527 F.2d at 675; cf. Bitter v. United States, 389 U.S. 15, 16, 88 S.Ct. 6, 7, 19 L.Ed.2d 15 (1967) (per curiam) (“A trial judge indisputably has broad powers to ensure the orderly and expeditious progress of a trial. For this purpose, he has the power to revoke bail and to remit the defendant to custody. But this power must be exercised with circumspection. It may be invoked only when and to the extent justified by danger which the defendant’s conduct presents or by danger of significant interference with the progress or order of the trial.”). Thus, if the court finds substantial evidence that the defendant has threatened or interfered with government witnesses, or that his release would pose a danger to the community, it may remand the defendant without bail before and during the trial.

II. FINDINGS OF FACT

At the hearing, James Turner (“Turner”) testified in support of the government’s application for detention. Evidence produced at this hearing demonstrates that Pay-den has attempted to interfere with government witnesses and that these actions are serious enough to warrant detention. Turner was an inmate with Payden at the MCC. Between August 1984 and January 1985 the two had periodic conversations. During these conversations, Turner told Payden that he had shot a bank guard. Tr. 61. In fact, Turner has a history of committing murder as well as other serious offenses. In 1965 Turner killed a man with a butcher knife over a dispute involving a woman. In 1978, Turner was convicted of bank robbery. In 1985, Turner was again convicted of bank robbery. Turner has admitted that during the latter bank robbery he shot an unarmed guard at the bank. Thus, aware of Turner’s history and his willingness to commit murder, Payden told Turner in January of 1985 that he wanted to kill a government witness whom he then identified as “Diane Turner.” On a number of occasions, Payden asked Turner to kill this witness and offered to “pay [Turner] good” for his services. Tr. at 62. Sometime subsequent to his initial approaches to Turner, Payden was visited by a girlfriend who, Payden told Turner, brought Payden an Indianapolis address of the target witness. When Payden communicated that address to Turner, he informed Turner that he also wanted the witness’ daughter killed.

Payden gave Turner an address and telephone number where Turner could make initial arrangements for the contract murders, should Turner be released and interested in Payden’s proposition. From August of 1984 until his trial on the bank robbery charges in March of 1985, Turner was convinced that he would be “getting out any time.” He had made an application before the court to find him mentally incompetent to stand trial and apparently was confident that such application would be granted. Turner was not tried on the bank robbery charges until March 1985. Thus, at the time Payden approached Turner about the murder contract, both Turner and Payden believed that Turner would not be in prison for long.

Payden contends that there is not sufficient evidence connecting “Diane Turner,” the person Turner states Payden asked him to kill, and Claudine Jones, the government’s witness against Payden. It is well settled that a trier of fact may make inferences from proven facts based on common experience and logic. Epoch Producing Corp. v. Killiam Shows, Inc., 522 F.2d 737, 744 (2d Cir.1975), cert, denied, 424 U.S. 955, 96 S.Ct. 1429, 47 L.Ed.2d 360 (1976). The fact that Payden did not identify Claudine Jones by her correct name is to be expected. Until Payden had firmly secured Turner’s acceptance of the proposed murder contract, Payden had no reason to disclose the target’s real name. Any transaction involving high risk and unlawful behavior, such as what was contemplated here, is likely to be carried out in a clandestine manner through the use of some form of code. However, the descriptive information provided by Payden to Turner clearly identifies Claudine Jones as the target of Payden’s threats. Payden described his target as a woman who was testifying against him. Payden also stated that the target was from Indiana and has a daughter, facts which also apply to Claudine Jones. Finally, Payden stated that the target and Payden’s “brother” were both serving twenty-year sentences for narcotics violations. Both Jerry McGee and Claudine Jones are presently serving twenty year sentences for narcotics violations. The court finds substantial evidence that “Diane Turner” is Claudine Jones.

Payden states a number of reasons why the court should not believe Turner’s testimony. First, Payden contends that Turner has a strong motive for lying. He is up for sentencing before Judge Kram on the bank robbery conviction and his cooperation in this action will likely weigh in his favor before Judge Kram. Moreover, Turner testified that in January of 1985, Payden struck Turner, apparently in an argument over the Superbowl, and broke his glasses. Payden contends that Turner then contrived this story about Payden’s murder solicitations in order to get even with Pay-den. Second, Payden contends that Turner has shown a willingness to lie under oath to further his own interests. In the hearing before this court, Turner candidly admitted on direct examination that he had fabricated his incompetency defense before Judge Kram and feigned insanity in order to avoid incarceration. To further his insanity defense, he had lied to psychiatrists, taken drugs he knew he did not need and perjured himself before the court. Payden argues that the testimony of an admitted liar is not to be believed. Third, Payden refers to reports of psychiatrists who have examined Turner previously and have described him as an anti-social and paranoid personality. Payden characterizes Turner as an individual who “when he imagines himself to have been crossed, predictably attempts to retaliate either physically (by striking, shooting, etc.), or by falsely accusing the party he believes has offended him.” Payden’s Memorandum of Law at 5.

The court, after considering all of these factors, finds Turner’s testimony credible. The court notes that Turner came forward with this information at a time, not only when he had little to gain, but also when it was against his penal interests to come forward. Turner provided this information to the supervisor of the MCC in January of 1985. At that time the trial on the bank robbery charges had not even begun. Moreover, Turner was awaiting a decision by Judge Kram on his incompetency claim. By following proper procedure and exposing Payden’s threats, Turner ran the risk of undermining his own incompetency defense. Moreover, in January of 1985, when Turner reported Payden’s solicitations, the court’s order of detention against Payden was still in effect. Thus, if Turner wanted to “get even” with Payden, he was gaining little by reporting him, because Payden’s prospects for release at that time were not very good in any event.

Moreover, the fact that Turner stands to gain'by his testimony does not mean he is incapable of testifying truthfully. See United States v. Cheung Kin Ping, 555 F.2d 1069, 1073-74 (2d Cir.1977). It must be recognized that any person whom a defendant would seek to hire for the purpose of killing a government witness is likely to have demonstrated a contempt for society’s laws and mores. Indeed, the court would find less credible the allegations that Payden sought out Turner to murder a government witness if Turner were not possessed of highly questionable moral character. Moreover, government informants inform because they know they will receive leniency in return. Thus, the motive to fabricate always attends the testimony of a cooperating witness. Yet, this judge has seen many a defendant convicted beyond a reasonable doubt based on the testimony of government informants. If, after examining the demeanor of the witness and the consistency of his assertions, the court finds the witness’ testimony credible, then the court may accept his testimony, regardless of the witness’ motive and propensity to lie.

The court has considered Turner’s mental state and notes that Judge Kram found Turner competent to stand trial. This finding was based in part on the psychiatric evaluation of William S. Logan, M.D., dated May 3, 1984, who found that Turner was capable of “rational as well as factual understanding of the proceedings against him.” The court finds Turner to be a competent witness. Payden has not satisfied his burden of showing that Turner does not have personal knowledge of the matters about which he has testified, that he does not have the capacity to recall, or that he does not understand the duty to testify truthfully. United States v. Lightly, 677 F.2d 1027, 1028 (4th Cir.1982). Although psychiatrists have noted that Turner has displayed paranoid tendencies, these tendencies do not preclude him from being a competent witness. United States v. Lightly, supra, 677 F.2d at 1028; Shuler v. Wainwright, 491 F.2d 1213, 1223 (5th Cir. 1974); United States v. McFarland, 371 F.2d 701, 704-05 (2d Cir.1966), cert, denied, 387 U.S. 906, 87 S.Ct. 1689, 18 L.Ed.2d 624 (1967).

The court has closely scrutinized Turner’s testimony. Turner’s story was credible and consistently told. It withstood the test of a vigorous and protracted cross examination by Payden’s counsel. Payden points to various instances where Turner contradicted himself or lied in his testimony before this court. Defendant’s Memorandum of Law at 8-9. However, none of these contradictions concern Turner’s recital of Payden’s attempt to murder Claudine Jones. A witness may be inaccurate, contradictory, or even untruthful in some respects, and yet be entirely credible in the essentials of his testimony. Despite vigorous cross examination, during which Turner’s memory as to the details of his meetings with Payden was severely tested, Turner’s testimony remained clear and uncontroverted.

Payden contends that even if Turner’s testimony is true, there is no need to detain Payden because Claudine Jones is being kept by the government in a “safe” facility. See United States v. Leisure, 710 F.2d 422, 426 (8th Cir.1983) (in holding that case was not sufficiently “exceptional” to warrant the remand of defendant without bail, court noted that “the government’s principal witnesses are in the government’s witness protection program or in federal custody.”). The government still “see[s] some danger to Claudine Jones” despite the fact that she is being housed in such a facility. Tr. at 18. Even if the court were to assume that Payden’s release would not endanger the life of Claudine Jones, the court must be cognizant of Turner’s testimony that Payden also wanted Turner to kill Claudine Jones’ daughter. Her daughter resides in the Southern District of New York and has not been enrolled in the witness protection program. The government has not stated whether Claudine Jones’ daughter will be a witness in this case. However, if Payden is released, Claudine Jones will be more likely to refuse to testify to save her daughter’s life. The court will not allow Payden to use Claudine Jones, or anyone else, as hostage and to demand Claudine Jones’ testimony as ransom.

Moreover, the Grand Jury investigation of Payden has not been completed. See In re Grand Jury Subpoena Duces Tecum Dated January 2, 1985 (Robert M. Simeis, Esq.), 605 F.Supp. 839, 853-54 (S.D.N.Y. 1985), appeal argued, No. 85-6066 (2d Cir. Apr. 26, 1985). Accordingly, the court’s interest in protecting witnesses is particularly great in this case. The release of Payden at this juncture may cripple the Grand Jury’s continuing investigation, given Payden’s demonstrated willingness to kill witnesses and the family members of witnesses who testify against him.

Finally, Payden did not present any testimony on his own behalf. See United States v. Wind, 527 F.2d 672, 675 (6th Cir.1975) (in affirming detention of defendant after a hearing in which the district court found that defendant had threatened witnesses, appellate court noted that defendant did not testify or offer any proof).

CONCLUSION

The government has submitted substantial evidence that Payden has attempted to arrange the murder of a government witness and her daughter. Under the “extraordinary circumstances” of this case, Pay-den’s detention before and during trial is necessary to protect future witnesses and to further the interests of judicial administration.

IT IS SO ORDERED.

      . On February 25, 1985, while the court’s detention order was sub judice in the court of appeals, the government filed a second superseding indictment which, in addition to the charges in the first superseding indictment, contained a detailed list of items sought pursuant to the forfeiture provision, including cash, a 25% interest in a company as represented by shares of stock, an automobile and jewelry. The court did not hold a detention hearing on Payden’s "first appearance” before the court on the second superseding indictment because at that time, the court’s December 3, 1984 order of detention was still in effect. The court of appeals decision apparently precludes a detention hearing under the new act at this time based on the "first appearance” requirement.

      . In the December 3, 1985 opinion, this court found that no condition or combination of conditions of Payden’s release will assure the safety of the community. That factual finding was not disturbed by the court of appeals and this court has not been given any new information that would warrant a reconsideration of that finding. Indeed, in light of Turner’s testimony, the prospect of Payden's release poses an even greater danger to the community than the court had originally envisioned.
      Some courts have held that under the Bail Reform Act of 1966, the court has the power to remand a defendant without bail if it finds that defendant poses a substantial danger to the community. United States v. Markowski, 582 F.Supp. 1276, 1278 (N.D.Ind.1984); see also United States v. Graewe, 689 F.2d 54, 56 (6th Cir.1982) (court of appeals affirms district court’s detention order without reaching district court’s determination that defendant's continued drug trafficking posed a danger to the community, warranting his pre-trial incarceration); cf. United States v. Kostadinov, 572 F.Supp. 1547, 1550 (S.D.N.Y.1983) (danger to the community posed by defendant's release made for "extreme and unusual circumstances” warranting denial of bail), aff'd on other grounds, 721 F.2d 411 (2d Cir.1983). But see United States v. Melville, 306 F.Supp. 124, 126-27 & n. 2 (S.D.N. Y.1969). The court does not rely on this ground for remanding Payden. The court relies exclusively on Payden’s interference with government witnesses as the basis for his remand without bail.

      . On March 22, 1985, the government submitted an in camera affidavit in opposition to Payden’s motion to have the government publish a list of its witnesses prior to trial. The in camera affidavit contains allegations that Payden has taken part in several murders and attempted murders. In United States v. Wind, 527 F.2d 672, 676 (6th Cir.1975), the Court of Appeals for the Sixth Circuit held that any reliance by the district court on testimony given at an in camera hearing from which the defendant and his attorney were excluded is error. Accordingly, this court has not relied on the in camera affidavit and gives it no weight with respect to the bail application. The affidavit will only be considered in the court’s determination of Payden’s omnibus pretrial motions, which are presently sub judice.

      It should be noted that the government has not acted improperly in submitting this affidavit. The affidavit was submitted when this court’s detention order of December 3, 1984 was still in effect and four days before the court of appeals had issued its opinion which reversed the order of detention. Thus, the government was not attempting to improperly influence this court as to its bail determination but was merely responding to the court’s inquiry as to why it would be dangerous for the government to disclose its witnesses prior to trial.

      . At the time of Jerry McGee’s arrest, he identified himself as Payden’s half brother. Although the government does not believe McGee is in fact Payden’s half brother, the fact that McGee himself used that nomenclature corroborates Turner's testimony.
      In January.of 1985, the government supplied the court with approximately thirty tapes that it intends to offer at trial against Payden. Mr. McGee is repeatedly identified throughout the tapes as "your brother McGee."

      . Of course the government does not have to prove that Payden has attempted to murder Claudine Jones beyond a reasonable doubt, but only by a preponderance of the evidence.


author: SOFAER, District Judge:

text:
    UNITED STATES of America, Plaintiff, v. CITY OF YONKERS; Gerald Loehr as Mayor of the City of Yonkers; Charles Connolly as Commissioner of Police of the City of Yonkers; City of White Plains; Alfred Del Vecchio, as Mayor of the City of White Plains; John Dolce as Commissioner of Public Safety of the City of White Plains; New York State Department of Civil Service; Victor S. Bahou, as President and Commissioner of the New York State Department of Civil Service; Josephine J. Gambino and James T. McFarland, as Commissioners of the New York State Department of Civil Service, Defendants.
    No. 80 Civ. 7407 (ADS).
    United States District Court, S.D. New York.
    Sept. 17, 1984.

      Rudolph W. Giuliani, U.S. Atty. for S.D. of N.Y., New York City, for plaintiff; Jane E. Bloom, Kathleen R. Roberts, Jane E. Booth, New York City, of counsel.
    Epstein Becker Borsody & Green, P.C., New York City, and Arthur J. Doran, Jr., Corp. Counsel, Yonkers, N.Y., for Yonkers defendants; Susan Schenkel-Savitt, Richard L. Steer, New York City, of counsel.
    Robert Abrams, Atty. Gen. of the State of N.Y., New York City, for State defendants; Melvyn R. Leventhal, Stanley A. Camhi, Martha 0. Shoemaker, New York City, of counsel.
   OPINION AND ORDER

SOFAER, District Judge:

The United States commenced this action against the City of Yonkers, its Mayor and Police Commissioner, the New York State Department of Civil Service, and its President and Commissioners in December 1980. The suit challenged hiring procedures for the Yonkers Police Department, including written examinations administered in 1972, 1973, and 1977, physical agility tests administered in 1973 and 1977, and a height requirement in effect until 1973. The complaint alleged that defendants had engaged in a pattern and practice of discrimination on the basis of race and gender in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2000e-17; the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. § 6716; the Comprehensive Employment and Training Act of 1973, Pub.L. No. 93-203, § 612, 87 Stat. 839, 882 (repealed 1982); and the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d.

In an earlier opinion, this court denied motions for summary judgment filed by both the Yonkers and State defendants. See United States of America v. City of Yonkers, 592 F.Supp. 570 (S.D.N.Y.1984). We declined at that time to decide defendants’ Rule 41(b) motions to dismiss for failure to establish a prima facie case, in order to afford defendants an opportunity further to cross-examine the government’s expert-witness, Dr. Bernard R. Siskin. Defendants having decided not to cross-examine Dr. Siskin further at this time, this memorandum and order now assesses the sufficiency of the United States’ prima facie case.

In support of their motions, defendants make several preliminary legal arguments. The defendants first contend that disparate impact analysis is only appropriate to challenges to “specific, limited, facially neutral employment criteria,” whereas here the United States mounts an “overall challenge” to an allegedly “pervasive pattern or practice of discrimination.” Yonkers Defendants’ Pretrial Brief at 17-18 (April 23, 1984). At trial the United States adduced sparse anecdotal evidence of discriminatory attitudes toward and treatment of minority and female applicants, elicited testimony on patterns of assignment and promotion, attempted to establish the inadequacy of Yonkers’ recruitment efforts, and tried to bring out a perception in the minority community of alienation from the Yonkers police force. The United States now firmly represents, however, that it founds this action wholly on the disparate impact model of employment discrimination and attacks only certain facially neutral selection criteria in the hiring of Yonkers police officers. United States’ Brief in Support of its Prima Facie Case at 1-2, 10 (May 18, 1984); see International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977); B. Schlei & P. Grossman, Employment Discrimination Law 80-205 (2d ed. 1983). In any event, for the most part the evidence of particular instances of discriminatory conduct was unreliable and altogether insufficient. The United States explains that it offered other evidence — such as the refusal of Yonkers officials to allow one woman to retake the physical fitness test when a dispute arose over whether she had run the required distance in one event, and their refusal to allow another woman to take the medical examination when she claimed she had not received notice — only to demonstrate that Yonkers “rigidly applied rules” in a way that precluded affirmative action and that “Yonkers treated minorities and women exactly like white men.” Reply Brief in Support of its Prima Facie Case at 6 n.*. But Yonkers had no obligation to run its testing procedures on a discriminatory basis.

The United States also failed to establish that Yonkers violated Title VII by failing adequately to recruit minorities and women. See e.g., Association Against Discrimination in Employment, Inc. v. City of Bridgeport, 479 F.Supp. 101, 110 (D.Conn.1979), affd in part and vacated, in part on other grounds, 647 F.2d 256 (2d Cir.1981), cert, denied, 455 U.S. 988, 102 S.Ct. 1611, 71 L.Ed.2d 847 (1982). Assuming that Yonkers had a reputation for discrimination and hence an obligation to recruit, the evidence concerning Yonkers’ recruitment efforts suggested that Yonkers engaged in increasingly vigorous and effective campaigns before each test. While Yonkers Personnel Director Jack Christiansen insisted that the City had conducted some minority recruiting in 1972, no other witness could recall such an effort. In 1973, however, Police Chief Polsen issued a press release in English and Spanish announcing the date of the examination and expressing Yonkers’ interest in attracting candidates from all groups in the community in order to remedy minority underrepresentation in the police department. More importantly, the Yonkers Urban League, the Administrator of the Human Rights Commission, and Rita Nelson, a Yonkers police officer, organized a recruitment and training program. ' Nelson testified that she and other Yonkers police officers participated in this campaign and served as instructors for a series of eight, two-hour training sessions; that several ranking officers contributed funds from their own pockets; that the police department contributed the use of its facilities; and that a Spanish-speaking officer was dispatched to speak with Hispanic community groups. A local newspaper and Christiansen testified that Yonkers sought public service spots on local radio. The City prepared and distributed recruitment posters and pamphlets; it also set up a recruitment center in a minority neighborhood and detailed minority police officers to do recruiting. In 1988 Yonkers hired James Barrier, a retired black police lieutenant, to head the 1983 effort. In its campaign evaluation following the 1977 test, Yonkers had observed that, while it had succeeded in attracting significant numbers of women and minorities to register for the exam, members of these groups proved much less likely actually to appear for the test. Yonkers attempted to remedy this problem for the 1983 test by arranging to transport candidates to the testing sites. In addition, it again opened a recruitment center, distributed literature, and detached minority police officers for fulltime recruiting. Yonkers also conducted an extensive training program, with 32 teachers leading classes of 25 persons apiece. All witnesses agreed that the 1983 recruitment effort had been highly successful. Numerical results, which showed that the percentage of women and minorities that had signed up for and taken the examination substantially exceeded their representation in the relevant labor force, bore out this assessment.

The 1973 and 1977 recruitment campaigns were by no means exemplary. The 1977 training program, for example, was criticized for comparing poorly with the test actually administered. And Hispanic community leaders continued to criticize outreach efforts to their community. Overall, however, the record reveals gradually improving and ultimately successful efforts to eliminate any prevailing perceptions in the minority communities that the Yonkers police force was not accessible to them. See Transcript at 922.

Defendants argue further that the evidence thus far presented is insufficient to establish a prima facie case of disparate impact of the selection procedures on blacks, Hispanics, and women. But the United States identifies three specific employment criteria — the 1972, 1973, and 1977 written examinations, the 1973 and 1977 physical fitness tests, and the height requirement — which on their face might well be “facially neutral in their treatment of different groups but ... in fact fall more harshly on one group than another.” Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15. A fourth criterion — the 1972 exclusion of women — is discriminatory on its face. Whatever the utility of disparate impact analysis in evaluating subjective employment criteria or in mounting “a wide ranging attack on the cumulative effect of a [defendant’s] employment practices,” Pouncy v. Prudential Insurance Co., 668 F.2d 795, 800 (5th Cir.1982); compare id. with Schlei & Grossman at 1288 & n. 15, this suit, as presently pressed, is an appropriately circumscribed challenge to specific, objective selection criteria. Compare Carroll v. Sears, Roebuck & Co., 708 F.2d 183, 188-89 (5th Cir.1983) (Wisdom, J.) (employment practices related to training, promotion, termination, and job classification susceptible only to disparate treatment analysis), with id. at 189 (facially neutral testing program subject to disparate impact analysis).

Defendants also contend that as a matter of law disparate impact analysis cannot establish a pattern or practice of discrimination within the meaning of section 707(a). The argument confuses the breadth of discrimination necessary to support the Attorney General’s suit with the means available to prove it. The Supreme Court has advised that in a pattern-or-practice action the government “ultimately had to prove more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts,” Teamsters, 431 U.S. at 336, 97 S.Ct. at 1855, “ ‘single, insignificant, isolated acts of discrimination’ ” would not do, id. at 336 n. 16, 97 S.Ct. at 1855 n. 16 (quoting Senator Humphrey, 110 Cong.Rec. 14270 (1964)). But as the Court’s comparison in Teamsters of the disparate treatment and disparate impact analyses in the context of a section 707(a) suit suggests, see id. at 335 n. 15, 97 S.Ct. at 1854 n. 15, a pattern of discrimination might be proved by either widespread disparate impact or regular disparate treatment. “Either theory may, of course, be applied to a particular set of facts.” Id. For this reason, courts have employed disparate impact analysis in pattern-or-practice suits without comment. See, e.g., United States v. City of Chicago, 573 F.2d 416, 424 (7th Cir.1978) (suit by Attorney General under 42 U.S.C. 2000e et seq.); Walls v. Mississippi State Department of Public Welfare, 542 F.Supp. 281, 309-10 (N.D.Miss.1982) (government challenge under section 707 to educational qualifications and testing program utilizing disparate impact analysis), affd in part, rev’d in part on other grounds, 730 F.2d 306 (5th Cir.1984); United States v. City of Buffalo, 457 F.Supp. 612, 621-22 (N.D.N.Y.1978), modified on other grounds, 633 F.2d 643 (2d Cir.1980). Moreover, because by definition disparate impact analysis must focus on much more than isolated occurrences, it lends itself to uncovering a proscribed pattern or practice. As a practical matter, a well-documented statistical assault might well reveal a pattern of the identified effect. See, e.g., United States v. City of Chicago, 385 F.Supp. 543, 553-54 (N.D.Ill.1974).

Pointing next to the language of section 707(a) which requires that the Attorney General have reason to believe that the identified pattern or practice “is of such a nature and is intended to deny the full exercise” of statutorily protected rights, defendants argue that in order to establish a pattern or practice within the meaning of the statute the United States must demonstrate intention in the constitutional sense. See, e.g., Washington v. Davis, 426 U.S. 229, 238-39, 96 S.Ct. 2040, 2046-47, 48 L.Ed.2d 597 (1976). The courts have uniformly refused to read such a requirement into the statute, however, but have instead respected the evident congressional purpose that the statute reach conduct which is intentional in the relatively innocuous sense of advertence. See Local 189, United Papermakers and Paperworkers v. United States, 416 F.2d 980, 996-97 (5th Cir.1969) (intent requisite to § 707(a) suit “may be inferred from the fact that defendants persisted in the. conduct after its racial implications had become known to them”), cert, denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970); Walls v. Mississippi State Department of Public Welfare, 542 F.Supp. 281, 309 n. 17 (N.D.Miss.1982), affd in part, rev’d in part on other grounds, 730 F.2d 306 (5th Cir.1984); United States v. Local 357 of the International Brotherhood of Electrical Workers, 356 F.Supp. 104, 117 (D.Nev.1973); see also United States v. Bethlehem Steel Corp., 312 F;Supp. 977, 993 (W.D.N.Y.1970); modified, 446 F.2d 652 (2d Cir.1971); see also Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971) (“Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation” (emphasis in original)).

The proof introduced thus far at trial establishes a prima facie case of discrimination. As the Supreme Court has explained:

to establish a prima facie case of discrimination, a plaintiff need only show that the facially neutral standards in question select applicants for hire in a significantly discriminatory pattern. Once it is thus shown that the employment standards are discriminatory in effect, the employer must meet “the burden of showing that any given requirement [has] ... a manifest relationship to the employment in question.” Griggs v. Duke Power Co., [401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971) ]. If the employer proves that the challenged requirements are job related, the plaintiff may then show that other selection devices without a similar discriminatory effect would also “serve the employer’s legitimate interest in ‘efficient and trustworthy workmanship.’ ” Albemarle Paper Co. v. Moody, [422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973) ].

Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977); see, e.g., Connecticut v. Teal, 457 U.S. 440, 446-47, 102 S.Ct. 2525, 2530-31, 73 L.Ed.2d 130 (1982). At this point, the United States need only demonstrate a “significantly discriminatory” effect from the challenged procedures in order to put the defendants to their rebuttal. Statistical evidence is wholly competent for the purpose. See, e.g., Teamsters, 431 U.S. at 339-40 & n. 20, 97 S.Ct. at 1856-57 & n. 20; Bushey v. New York State Civil Service Commission, 733 F.2d 220, 225 (2d Cir.1984); Kirkland v. New York State Department of Correctional Services, 711 F.2d 1117, 1131-32 (2d Cir.1983), cert, denied, — U.S. —, 104 S.Ct. 997, 79 L.Ed.2d 230 (1984); United States v. Wood, Wire and Metal Lathers International Union, Local No. 46, 471 F.2d 408, 414 n. 11 (2d Cir.1973); United States v. Ironworkers Local 86, 443 F.2d 544, 551 (9th Cir.), cert, denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971); Schlei & Grossman, supra, at 1287 (“Statistics are almost totally determinative in adverse impact cases”). The findings as to Title VII apply equally to the Revenue Sharing Act, 31 U.S.C. § 6716(a), see Cohen v. West Haven Board of Police Commissioners, 638 F.2d 496, 499 & n. 4 (2d Cir.1980); United States v. State of New York, 82 F.R.D. 2, 4-5 (N.D.N.Y.1978); Officers for Justice v. Civil Service Commission, 20 Fair Empl.Prac.Cas. (BNA) 179, 185 (N.D.Cal.1978); and to the Omnibus Crime Control and Safe Streets Act, 42 U.S.C. § 3789d(c)(1), see United States v. New York, 82 F.R.D. 2, 4-5; Officers for Justice, 20 Fair Empl.Prac.Cas. (BNA) at 185. Although no court has applied Title VII standards to the Comprehensive Employment and Training Act, the provisions of that statute are similar to those of Title VII, see Comprehensive Employment and Training Act, Pub.L. No. 93-203, § 612(a), 87 Stat. 839, 882 (1973) (repealed 1982).

The United States relies heavily on the report of Dr. Bernard R. Siskin, first presented as an appendix to the United States’ Pretrial Brief but revised several times both during the prima facie phase of trial and well after its close. See, e.g., Siskin Report (April 1984) (appendix to United States Pretrial Brief); Siskin Report (amended April 29, 1984) (Gov’t Exhibit 26E); Siskin Report (July 5,1984). In summary, Dr. Siskin testified that the 1972, 1973, and 1977 written tests had a statistically significant disproportionate impact on black and Hispanic test-takers, that the 1973 and 1977 physical agility tests had a statistically significant disproportionate impact on female test-takers, and that the height requirement had a statistically significant disproportionate impact on female applicants.

The Uniform Guidelines on Employee Selection of the Equal Employment Opportunity Commission prescribe a “four-fifths rule” by which federal agencies charged with the enforcement of equal opportunity law identify significant adverse impact of selection procedures:

A selection rate for any race, sex, or ethnic group which is less than four-fifths (Vb) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact.

See 29 C.F.R. § 1607.4(D); see also 28 C.F.R. § 50.14; 5 C.F.R. § 300.103(c); 41 C.F.R. § 60-3.1. Though not binding, the courts have accorded the guidelines “great deference.” Griggs, 401 U.S. at 433-34, 91 S.Ct. at 854-55; see Bushey, 733 F.2d at 225. Alternatively, the Supreme Court has approved the use of standard deviation analysis to assess the significance of disproportionate impact. See Casteneda v. Partida, 430 U.S. 482, 496 n. 17, 97 S.Ct. 1272, 1281 n. 17, 51 L.Ed.2d 498 (1977); Hazelwood School District v. United States, 433 U.S. 299, 308 n. 14, 97 S.Ct. 2736, 2742 n. 14, 53 L.Ed.2d 768 (1977). ‘[I]f the difference between the expected value [from a random selection] and the observed number is greater than two or three standard deviations,’ a prima facie case is established since the deviation then could only be regarded as caused by some factor other than chance.” Kirkland v. New York State Department of Correctional Services, 711 F.2d 1117, 1131 (2d Cir.1983) (quoting Casteneda, 430 U.S. at 496 n. 17, 97 S.Ct. at 1281 n. 17), cert. denied, — U.S. —, 104 S.Ct. 997, 79 L.Ed.2d 230 (1984).

Evaluated under either of these standards, Dr. Siskin’s statistical report demonstrates that the 1977 written examination had a sufficiently significant disproportionate impact upon black and Hispanic applicants to establish a prima facie case. His report indicates that blacks passed the 1977 test at only 58% the rate of whites, and Hispanics at only 57% that rate. See Tables 201, 401. Studies done by the State and by Yonkers confirm Dr. Siskin’s results as to the 1977 test, at least in broad outline. See Gov’t Exhibits 576, 216. In addition, under either means of evaluation, Dr. Siskin’s statistics show a significant disparate impact upon black applicants in 1973, when blacks passed at only one-quarter the rate of whites. See Table 201. However, while the pass rates for blacks in 1972 and Hispanics in 1972 and 1973 are below eighty percent those of whites, the small samples render the disproportion statistically insignificant in units of standard deviation: for blacks in 1972, 1.19 units; for Hispanics in the same year, 1.88; and for Hispanics in 1973, 1.28. See Tables 201, 401; Transcript 270. The results are roughly comparable using an effective pass rate, which counts as passing only those who received the minimum score necessary actually to be selected, rather than simply placed on an eligible list. See Table 901.

The United States argues that the similarity of the 1972 and 1973 tests makes it appropriate to aggregate the samples for those years, in which event the units of standard deviation for black test-takers rises slightly above three and for Hispanic test-takers slightly above two. In Bridgeport Guardians, Inc. v. Members of the Bridgeport Civil Service Commission, 354 F.Supp. 778, 784-86 (D.Conn.) (Newman, J.), aff'd in relevant part, rev’d in part on other grounds, 482 F.2d 1333 (2d Cir.1973), cert, denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481 (1975), and Chance v. Board of Examiners, 330 F.Supp. 203, 211-12 (S.D. N.Y.1971), aff'd, 458 F.2d 1167 (2d Cir. 1972), the courts aggregated the results of multiple tests before assessing the hypothesized disparities. Arguing that such an approach would be inappropriate here, defendants identify trivial differences between the tests — for example, that fifteen of the multiple-choice questions on the 1972 test had five choices instead of four — and point out that the test questions were not precisely identical. See Transcript at 1435-36, 1482. But the evidence at trial showed that the tests were substantially similar: both consisted of 75 multiple choice questions, including 30 on understanding legal passages, 30 on judgment in situations likely to arise in police work, and 15 on preparing written reports. The scoring formula for each exam was the same. In addition, the deposition testimony of the since-deceased Dr. Sol Kabel, the Associate and then Principal Personnel Examiner at the Department of Civil Service until 1981, which was admitted over defendants’ objections in an unrelated proceeding, demonstrated that both examinations came from the same series and thus were similar in design, concept, and content. See Kabel Deposition at 126-30, 141-44. Further, the state’s use of the tests for the identical position should provide adequate assurance of similarity, for its interest in fair and consistent selection procedures should have provided strong inducement to minimize variations in two tests given for an identical position within the space of one year. See Bridgeport Guardians, 354 F.Supp. at 784.

Moreover, the Casteneda threshold operates to establish an inference as to discrimination only above the line; there is no converse presumption ascribing to chance levels of probability below “two or three.” Equal Employment Opportunity Commission v. American National Bank, 652 F.2d 1176, 1192 (4th Cir.1981) (Phillips, J.), cert, denied, 459 U.S. 923, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982). “[W]ell short of three standard deviations the probability levels for chance as explanation have already dropped far below the point at which courts of law — concerned with proof by the ‘greater weight’ or ‘preponderance’ of the evidence — would presumably have discarded the hypothesis of chance.” Id.; see Guardians Association of New York City Police Department, Inc. v. Civil Service Commission, 630 F.2d 79, 86 n. 4 (2d Cir. 1980) (recognizing that likelihood that actual results will fall more than two standard deviations beyond the expected results is only about 4.6%), cert, denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981). In this case, aggregating the impact of the 1972 test on all minorities by adding the figures for blacks to those for Hispanics produces a disparity of 2.04 units of standard deviation. See Table 403. While not conclusive of discriminatory effect under Casteneda, this level of probability certainly has some probative value. See American National Bank, 652 F.2d at 1192. Finally, the ratio of black passers to white passers on the 1972 test is below the eighty-percent threshold of the Uniform Guidelines, and the ratio of Hispanic passers to white passers on the 1972 and 1973 tests is well below that threshold.

Under these circumstances, the United States has established a prima facie case in the categories it seeks to aggregate. Contrary to Yonkers’ contention, the Chance court did not find aggregation inappropriate. It began its survey of the statistical data by noting “the aggregate pass-fail statistics for the entire group,” which comprised fifty examinations extending over seven years. 330 F.Supp. at 209-10. The court did find the use of small samples troublesome, observing that the low number of minority applicants taking forty-one of the fifty examinations meant that “each such examination, when analyzed individually, cannot be accorded much weight or significance,” and finding it impossible to draw “meaningful conclusions as to differences ... from any one of these 41 examinations.” Id. at 212 (emphasis supplied). It therefore “preferred] the greater fact content found in the larger sample” available for the remaining nine tests. Id. But as its recitation of the aggregate figures makes clear, it accorded these numbers probative value.

The use of aggregation does not mean, as Yonkers seems to assume, that the evidence involved necessarily takes on more significance. Statistics in whatever form are but circumstantial evidence for a given factual hypothesis. See, e.g., Teamsters, 431 U.S. at 340, 97 S.Ct. at 1856; Chance, 458 F.2d at 1173. A need to aggregate to achieve statistical significance may lessen the probative force of the data, which will vary as well with the size of the aggregate sample and the degree of similarity in the tests. Defendants will have the opportunity on rebuttal to attack the evidentiary significance of the aggregate. Furthermore, the need to aggregate may be highly relevant to the remedies that are appropriate if a violation is ultimately established. The data for 1972 and 1973 constituted a far weaker signal to Yonkers of the potentially discriminatory impact of its test than was signalled by the 1977 test, so the propriety of imposing drastic corrective measures for the consequences of using the tests in the earlier years becomes far more questionable.

Yonkers barred women from taking the 1972 patrolman’s examination, allegedly in reliance on state instructions. Yonkers Defendants’ Proposed Factual Chronology ¶¶ 27-28, 33 (June 5, 1984); Gov’t Exhibits 113-14; Transcript 742. Dr. Siskin’s report indicates that the 1973 and 1977 physical agility tests administered to applicants who had successfully completed the written examination had a disparate impact upon women: in 1973 no women passed the test, while 88% of the male candidates did, yielding a disparity of 4.74 units of standard deviation, and in 1977 the percentage of female passers was only 68% that of male passers, yielding a disparity of 4.48 units of standard deviation. See Table 1201. Defendants argue that the small sample sizes make these figures unreliable. The Supreme Court has cautioned that small sample size “may, of course, detract from the value of [statistical] evidence,” Teamsters, 431 U.S. at 340 n. 20, 97 S.Ct. at 1856 n. 20, but standard deviation analysis takes account of sample size as well as degree of disparity in measuring statistical significance. See Transcript 213; Dendy v. Washington Hospital Center, 581 F.2d 990, 992 (D.C.Cir.1978) (per curiam) (“While the numbers involved may have appeared small [35 test-takers, of whom nine were black], statistical analysis showed them to reflect a discriminatory impact that could not reasonably be ascribed to chance alone.”). For the 1973 test, the disparity is so great that the relatively small sample reaches well into the statistically significant range, whereas for the 1977 test a larger sample yields similar results despite the smaller disparity.

Defendants also argue that individual circumstances account for several of the female failures in both tests and that removing these women from the samples would dilute the results into statistical insignificance. Yonkers suggests that in 1973 only two of the four women who took the test actually “failed” because the other two “voluntarily withdrew.” Yonkers does not contend, however, that either woman accrued the minimum points necessary to pass the test before withdrawing, though it suggests that one “could have”; nor does it contend that the personnel administering the test would not have regarded men who withdrew in this manner also as having failed. The women presumably withdrew because they determined that they could not pass. In any case, absent evidence that men were scored differently in this regard, no reason exists to subtract these two women from the failures. Defendants likewise argue that the 1977 sample is flawed because one unsuccessful candidate testified that she had not gotten proper rest before her first try and was ill for her second; because another testified that she would have passed had she not been required to run a disputed extra lap; and because a third testified that she would have passed had she attended the exam but never received notice that it would take place. Yonkers has argued strenuously, however, that it treated all candidates alike in notification and administration of the test. Absent detailed evidence of the state of readiness of each candidate, the exactitude with which each test was administered, or the proportion of candidates who might, through “administrative problems,” have failed to receive notice, the peculiar circumstances of these or any other candidates do not affect the reliability of the sample as a whole.

Finally, where the sample size is relatively small it is appropriate to look to nonstatistical evidence. Here it is uneontroverted that Yonkers did not permit women to take the 1972 patrolman’s examination. Initially, Yonkers Municipal Civil Service Commission personnel refused applications from women for the 1973 test as well, upon the advice of Joseph Silverman of the Municipal Service Division of the State Civil Service Division, see Transcript 1129-30, 1405, 1489; Gov’t Exhibit 1204, but changed its stance some weeks later when Joseph Watkins of the same office advised it to accept women’s applications so long as they could meet other requirements specified in the announcement, see Transcript 1489; Gov’t Exhibit 1204. Yonkers’ reluctance to accept applications from women contributed to the small number of those who took the written test, and thus to the small sample available for the physical test. Yonkers’ conduct further pruned that sampie when it rejected six of the eight female candidates who had passed the written examination for failure to meet the 5'8" minimum height requirement. After two of the rejected candidates filed complaints with the New York State Division of Human Rights, Yonkers agreed to permit the women to take the physical agility test. While the parties dispute whether Yonkers ever notified the underheight women who had not complained, compare Gov’t Exhibit 165 with Transcript 1408-09,1411, only the two complainants appeared. Yonkers should not be permitted to question statistically significant findings on the basis of sample size where the small size of the sample was caused, at least in part, by Yonkers’ own conduct. Cf. Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d 1017, 1021 (1st Cir.1974) (small sample size suggesting discriminatory effect should not be disregarded where limited data “may be traceable to the test’s discouraging effect as well as to unequal recruitment practices”), cert, denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975).

The 5'8" height requirement also had a disparate impact on women. The Supreme Court has approved the use of national statistics to demonstrate the effect of height requirements. See Dothard v. Rawlinson, 433 U.S. 321, 329-30, 97 S.Ct. 2720, 2726-27, 53 L.Ed.2d 786 (1977); see also Vanguard Justice Society, Inc. v. Hughes, 471 F.Supp. 670, 710 (D.Md.1979). Figures from the National Center for Health Statistics for 1971 through 1974 indicate that at the time over 96% of American women were under that height while less than 28% of American men were. See Table 1801. While Yonkers abandoned the requirement before the actual administration of the written exam, its inclusion in the announcement and Yonkers’ initial insistence upon it may have discouraged at least some women from applying.

The record made thus far also includes evidence concerning a decision of Yonkers officials which modestly exacerbated the impact of the City’s 1973 test. In December 1974 Yonkers established an eligibility list from the 1973 examination, which was originally slated to remain in effect for two years. Around that time the Municipal Services Department indicated that the state would administer police officer examinations in February and October 1975. Christiansen recommended on February 3, 1975, however, that the Commission not participate because Yonkers had “adequate lists going through at least August of 1977,” referring to the eligibility list from the 1972 exam, which would not expire until that time, as well as that from the 1973 test. Christiansen conceded that at the time he made this recommendation he did not take into account female and minority representation on the list. The Commission voted to extend the life of the 1973 list an additional year to December 1977. Commissioner Carey testified that the Commission had no information on the makeup by race and gender of the list when they decided to extend it. Christiansen credibly ascribed his reluctance to hold another exam to the severe fiscal crisis Yonkers was then suffering and to his belief that, given the extensive lists already in existence, a new examination would hold out but false hope of eventual employment. Although only twelve appointments — all white males — were made from the 1973 list, this impact nevertheless resu! d from a deliberate, albeit good faith, decision. In 1977 Christiansen recommended that the Commission not extend the 1973 list an additional year explicitly in order to facilitate “a concentrated effort to attract a greater representation of minorities” on a new list.

Finally, Yonkers contends that it has already demonstrated that Dr. Siskin’s data are too unreliable to provide the basis for a finding of discriminatory impact in this case. It first criticizes Dr. Siskin’s use of a “one-sided” or “one-tailed” test. See, e.g., Brown v. Delta Air Lines, Inc., 522 F.Supp. 1218, 1228 n. 14 (S.D.Tex.1980); Harper, Statistics As Evidence of Age Discrimination, 32 Hast.L.J. 1347, 1355 n. 65 (1981). It points out that he has repeatedly amended the raw data on which he bases his analyses and that he admitted on cross-examination to numerous computational errors. See Transcript at 252-56, 264. And, as noted, it questions the techniques, such as aggregation, used to achieve his results, as well as their overall statistical significance. While these criticisms and others yet to be made may prove telling, they do not at this point so undermine Dr. Siskin’s data as to have effectively rebutted the prima facie case. By separate, unpublished order this court has awarded defendants the excess costs involved in evaluating and responding to Dr. Siskin’s revisions, but in the interest of justice it has admitted the final version of his report as the most comprehensive and accurate assessment of the plaintiff’s case. Yonkers and the State will have a full opportunity to rebut that case, and Dr. Siskin’s shifts in analysis will then be fair game.

The data of Dr. Siskin’s report and the other evidence relied on here do

not prove a ... disproportionate impact with complete mathematical certainty. But there is no requirement that they should____ We must not forget the limited office of the finding that [female], black and Hispanic candidates did significantly worse in the examination^] than others. That does not at all decide the case; it simply places on the defendants a burden of justification which they should not be unwilling to assume.

Vulcan Society of the New York City Fire Department, Inc. v. Civil Service Commission of the City of New York, 490 F.2d 387, 393 (2d Cir.1973) (Friendly, J.).

The defendants’ motions to dismiss are denied.

SO ORDERED.