45 F.Supp. 187 (1942)
UNITED STATES
v.
ATLANTIC COMMISSION CO., Inc., et al.
No. 1710.
District Court, E. D. North Carolina, Wilson Division.
May 14, 1942.
*188 *189 John W. Aiken and Harold L. Schilz, Sp. Assts. to the Atty. Gen., and J. O. Carr, U. S. Atty., of Wilmington, N. C., for the United States.
R. E. Whitehurst, of New Bern, N. C., for S. M. Jones.
L. I. Moore, of New Bern, N. C., for New Bern Oil & Fertilizer Co. and Hugh S. Swan.
L. Bruce Gunter, of Raleigh, N. C., for Farmer's Cooperative Exchange, Inc., and M. G. Mann.
W. A. Lucas, of Wilson, N. C., and George J. Feldman, of Washington, D. C., for Atlantic Commission Co., Inc., and others.
F. E. Kellam, of Norfolk, Va., and Ehringhaus & Ehringhaus, of Raleigh, N. C., for W. T. Phillips and others.
Battle, Winslow & Merrell, of Rocky Mount, N. C., for Thomas P. Thompson and another.
W. R. Ashburn, of Norfolk, Va., and J. Henry LeRoy, of Elizabeth City, N. C., for W. R. Britton and others.
W. R. Ashburn, of Norfolk, Va., and Wade A. Gardner, of Wilson, N. C., for Guy W. Capps.
Rodman & Rodman, of Washington, N. C., for Pamlico Chemical Co. Inc.
Connor & Connor, of Wilson, N. C., and Willcox, Cooke & Willcox, of Norfolk, Va., for Charles F. Burroughs and F. S. Royster Guano Co.
Godfrey Child, of Pocomoke City, Md., for William B. Tilghman, Jr., and others.
Oliver G. Rand, of Wilson, N. C., for Baugh & Sons Co. and G. Allen Ives.
Fred L. Carr, Jr., of Wilson, N. C., for another defendant.
WYCHE, District Judge.
The indictment in the present case was returned by a special Grand Jury for the Eastern District of North Carolina on December 8, 1941. It charges, in the first count, a conspiracy to restrain interstate trade and commerce in potatoes in violation of Section 1 of the Sherman Act, 15 U.S.C.A. § 1; and, in the second count, a conspiracy to monopolize trade and commerce in potatoes in violation of Section 2 of the Sherman Act, 15 U.S.C.A. § 2.
Pleas in abatement, motions to quash, demurrers, motions for bills of particulars, and motions for severance and separate trials have been filed by certain defendants. I am satisfied that the allegations of each count of the indictment are sufficient to allege the commission of an offense against the United States and (except as to certain information ordered to be furnished defendants in the form of a bill of particulars during argument on the motions, as will appear from the record thereof) are stated with sufficient particularity to apprise the defendants of the offenses with which they are charged, in accordance with the requirements of the Fifth and Sixth Amendments to the Constitution. United States v. Cruikshank, 92 *190 U.S. 542, 23 L.Ed. 588; Johnson v. United States, 4 Cir., 5 F.2d 471; Hill v. United States, 4 Cir., 42 F.2d 812, 814; Martin v. United States, 4 Cir., 299 F. 287, 288.
An application for severance and separate trial is addressed to the discretion of the Court, and the general rule is that it is inadvisable to split a case into many parts, to be disposed of piecemeal, in the absence of very strong and cogent reason therefor. This is especially true in conspiracy charges. Dowdy v. United States, 4 Cir., 46 F.2d 417, 421; Tincher v. United States, 4 Cir., 11 F.2d 18, 21; Wood v. United States, 4 Cir., 204 F. 55, 57; Lucas v. United States, 70 App.D.C. 92, 104 F.2d 225, 226; United States v. Fradkin, 2 Cir., 81 F.2d 56, 59. The defendants, Southeastern Chain Store Council, Inc., and Thomas B. Thompson, in their motion for severance predicate most of their argument upon facts contained in an affidavit of the defendants that they are innocent, and that the Government will not be able to prove their guilt. The purpose of a trial is to determine the guilt or innocence of a defendant. It is the duty of the Government to prove at the trial the guilt of these defendants beyond a reasonable doubt, and if it fails so to do the defendants will be acquitted. These defendants do not have the right, any more than any other defendant would have, on this ground, to escape being tried until after their alleged co-conspirators have been convicted. It is my opinion that the reasons advanced for severance and separate trials are not strong enough to require my granting such motions.
By pleas in abatement and motions to quash, the defendants contend that the indictment is invalid because: (1) It was not signed, authorized, or endorsed by the District Attorney for the Eastern District of North Carolina, or any of his duly appointed and authorized assistants, but was signed and prosecuted before the grand jury by a special assistant to the Attorney General and special attorneys appointed under the Act of June 30, 1906, 5 U.S.C.A. § 310, and that such Act is unconstitutional and in violation of the Fifth Amendment to the Constitution. (2) It was based upon incompetent and improper evidence.
The record discloses that the special attorneys were duly appointed, commissioned and qualified as required by the statute, 5 U.S.C.A. §§ 310, 315, and that the District Attorney not only authorized the prosecution, but filed a notification and petition, alleging the necessity of a special grand jury investigation into conditions in the potato industry, upon which judge Meekins signed an order convening a special term for such purposes. The District Attorney and his assistants assisted in the investigation and prosecution, but did not appear before the grand jury.
At the outset it should be noted that a plea in abatement, being a dilatory plea, must be regarded with disfavor by the courts, and every inference must be against the pleader. Olmstead v. United States, 9 Cir., 19 F.2d 842, 845, 53 A.L.R. 1472. Likewise, every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a reasonable doubt. In re Sinking Fund Cases (Union P. R. Co. v. United States), 99 U.S. 700, 718, 25 L.Ed. 496, 504; United States v. United States Industrial Alcohol Co., 4 Cir., 103 F.2d 97, 101.
The Act of June 30, 1906, 34 Stat. 816, 5 U.S.C.A. § 310, provides: "The Attorney General or any officer of the Department of Justice, or any attorney or counselor specially appointed by the Attorney General under any provision of law, may, when thereunto specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which district attorneys may be by law authorized to conduct, whether or not he or they be residents of the district in which such proceeding is brought."
The constitutionality of this statute appears never to have been attacked, except in the case at bar. The other contentions made by defendants here with respect to the application of the statute have been considered and rejected in several cases. United States v. Sheffield Farms Company, Inc., D.C.S.D.N.Y. Feb. 4, 1942, 43 F. Supp. 1; United States v. Central Supply Association, D.C.N.D. Ohio E.D.1941, 37 F.Supp. 890; Shushan v. United States, 5 Cir., 1941, 117 F.2d 110, 133 A.L.R. 1040; May v. United States, 8 Cir., 1916, 236 F. 495, 499.
United States v. Huston, D.C.N.D. Ohio 1928, 28 F.2d 451, relied on by defendants, involved grand jury proceedings conducted in Ohio by a Special Assistant to the Attorney General appointed to conduct proceedings in Missouri and Minnesota. The court in that case held that, upon a proper *191 interpretation of the language of his commission, the Special Assistant to the Attorney General was not authorized to conduct proceedings in Ohio. No such question is presented in the present case, inasmuch as the commissions of Government counsel expressly authorize them to conduct grand jury proceedings in the Eastern District of North Carolina. Likewise, In re Confiscation Cases, 7 Wall. 454, 74 U.S. 454, 19 L.Ed. 196; United States v. Crosthwaite, 168 U.S. 375, 18 S.Ct. 107, 42 L.Ed. 507; United States v. Rosenthal, C.C.S.D. N.Y. 1903, 121 F. 862, relied upon by defendants, are not controlling here, since the Act of June 30, 1906, was evidently passed in order to obviate the effect of those decisions.
With respect to the constitutionality of the statute, defendants rely upon the Fifth Amendment to the Constitution of the United States which provides that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, * * *." Defendants contend that an "indictment of a grand jury" under this amendment means an indictment obtained in accordance with the traditional grand jury procedure, at the common law, at the time this Amendment was adopted; and that, therefore, a later Congressional enactment cannot modify that traditional procedure by permitting the presence of prosecuting attorneys on behalf of the Government during the grand jury proceedings.
However, defendants have cited no decisions of any court in support of this novel contention. In United States v. Thompson, 251 U.S. 407, 409, 40 S.Ct. 289, 64 L.Ed. 333, the Supreme Court, although not discussing the question of constitutionality, apparently gave its approval to the practice of appointing Special Assistants to the Attorney General under the Act of June 30, 1906, which was cited by the Court in its opinion. This may be considered as a tacit ruling that the statute was not unconstitutional. United States v. Sloan, D.C., 31 F.Supp. 327, 331.
Furthermore, defendants' contention would prove too much. It would prevent the service as grand jurors of persons who, by reason of sex or race, were not qualified to serve on a grand jury at the time the Fifth Amendment was adopted, and would chain the courts, in the face of greatly changed conditions, to ancient formulæ and would be a denial of the flexibility and capacity for growth and adaptation in the law which is regarded as its "peculiar boast and excellence". Funk v. United States, 290 U.S. 371, 379-383, 54 S.Ct. 212, 216, 78 L.Ed. 369, 93 A.L.R. 1136; Hurtado v. California, 110 U.S. 516, 4 S.Ct. 292, 28 L.Ed. 232; Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000.
Moreover, as has been stated above, this Court should not overthrow a statute enacted by Congress, a coordinate branch of the Federal Government, except in a case where its unconstitutionality is plain and free from doubt. In a doubtful case, and where no authorities in support of their contention that the statute is unconstitutional have been cited by defendants, it is the duty of this Court to uphold the validity of the Act of June 30, 1906, 5 U.S. C.A. § 310.
In any event, defendants cannot rely upon the above quoted provision of the Fifth Amendment for the reason that the offense charged in the indictment is not an "infamous crime". Whether a crime is infamous within the meaning of the Fifth Amendment must be determined by the character of the punishment that may be imposed. Imprisonment in a penitentiary is infamous punishment whether it be with or without hard labor. Imprisonment at hard labor in any institution for any definite term is infamous punishment. The test does not depend upon the punishment that is imposed but upon the punishment that can be imposed. The penal provisions of the Sherman Act do not permit imprisonment exceeding one year, nor do they direct imprisonment in a penitentiary or at hard labor. The statute does not embody any specific provision making the particular offense infamous. Consequently, violation of the anti-trust laws, as charged by this indictment, is not an infamous crime, and prosecution could have been by information. Duke v. United States, 301 U.S. 492, 57 S.Ct. 835, 81 L.Ed. 1243; United States v. Sloan, D.C., 31 F.Supp. 327.
It was contended in the Sloan case that the Act of May 14, 1930, 18 U.S.C.A. § 753f, authorized the trial court to designate a penitentiary as a type of institution in which the defendant could be confined, if convicted, thus subjecting him to infamous punishment. However, in that case, it was said that: "The act provides that `all persons convicted of an offense *192 against the United States shall be committed, for such terms of imprisonment and to such types of institutions as the court may direct, to the custody of the Attorney General of the United States, or his authorized representative, who shall designate,' etc. (Italics added.) It is conceded that the phrase `for such terms of imprisonment * * * as the court may direct' is subject to the limitation of statutes previously enacted, prescribing specific punishment for violations thereof. If this be true, then it would seem that Congress also intended that the words, `to such types of institutions as the court may direct' would likewise be subject to the preexisting statute, 18 U.S.C.A. § 695, R.S. § 5541, as construed by the Supreme Court, that a person sentenced to imprisonment for a term not exceeding one year may not be confined in a penitentiary, except where the statute expressly provides punishment by imprisonment in a penitentiary." 31 F. Supp. page 330.
It was also pointed out that "it seems that the purpose of the act was to diminish rather than enlarge the power of the courts". 31 F.Supp. page 331.
Since the date of the Sloan case, Congress has twice amended the Act of May 14, 1930. An amendment on October 21, 1941, 18 U.S.C.A. § 753f, related to juvenile offenders and is not pertinent here. The amendment of June 14, 1941, 18 U.S.C.A. § 753f, deleted the words "and to such types of institutions" following the word "imprisonment" in the first sentence of the statute, and also added the proviso: "Provided, That any sentence of imprisonment for an offense punishable by imprisonment for a term of one year or less shall not be served in a penitentiary except with the defendant's consent." The effect of these modifications is likewise to diminish rather than enlarge the power of the district courts. The proviso, preventing sentence to a penitentiary except with the defendant's consent, clearly invalidates any contention defendants might make that the offense with which they are charged is an infamous crime because punishable by confinement in a penitentiary.
Accordingly, it is my opinion that the specially appointed counsel were authorized to conduct the grand jury proceedings in this case and that the omission of the United States Attorney's signature is merely a formality, which does not invalidate the indictment. Caha v. United States, 152 U.S. 211, 221, 14 S.Ct. 513, 38 L.Ed. 415; Frisbie v. United States, 157 U.S. 160, 163-164; United States v. Sheffield Farms, Inc., D.C.S.D.N.Y. Feb. 4, 1942, 43 F.Supp. 1. However, it is my opinion that it is better practice for the United States District Attorney to sign all bills of indictment.
Proceeding to a consideration of the contention that the indictment was not based upon proper evidence, the weight of authority is opposed to inquiry into proceedings before a grand jury when such proceedings on their face are regular, and the question of the sufficiency or insufficiency, competency or incompetency of the testimony adduced before the grand jury is a matter which the Court has no right to inquire into. The reasons for the rule are sound, and to hold otherwise would lead to endless confusion. There is no federal statute regulating proceedings before a grand jury or specifying the kind and degree of evidence necessary to the finding of a true bill. A grand jury is an informing and accusing body rather than a trial body. Its duty is to inquire and investigate. It is not the function of a grand jury to determine the guilt or the innocence of a person accused of crime. That is the duty imposed upon the petit jury. In order to find a true bill it is necessary only that the grand jury determine from the evidence that the person charged is probably guilty. Its duty is to decide from the evidence offered whether there is prima facie ground for criminal prosecution. United States v. Direct Sales Company, Inc., D.C., 40 F.Supp. 917. While the decisions on this question are not uniform, by far the greater weight of the authorities supports the foregoing conclusions. Even the rule in the State of New York, which is more favorable to the position of defendants than the rule in any other jurisdiction, would not sanction the relief prayed for in the present case. United States v. Gouled, D.C.S.D.N.Y., 253 F. 242, 244; Kastel v. United States, 2 Cir., 23 F.2d 156, 157, 158.
The foregoing conclusions reached in United States v. Direct Sales Company, Inc., supra, applies whether the plea asserting that the indictment is based upon improper evidence alleges that the indictment was found without any legal evidence whatever being produced before the grand jury, or whether it alleges that insufficient, *193 incompetent or improper evidence was presented.
Of course, if a clear and positive showing is made to the effect that the impropriety of the evidence introduced before the grand jury is so flagrant as to constitute gross and prejudicial irregularity and fraud in the conduct of the grand jury proceedings, this Court would be warranted in interposing its authority to prevent injustice. But no such showing has been made here. Although certain newspaper editorials, asserting that potato growers were at the mercy of a monopoly and urging them to take action against it, were offered as grand jury exhibits, it appears that these editorials were produced voluntarily by witnesses in order to explain and justify their own conduct with respect to matters properly under investigation by the grand jury, and that Government counsel cautioned the grand jury to disregard the editorials as evidence. Moreover, such editorials purport merely to express, in forceful language, the general opinion prevalent in the potato-growing regions from which the grand jury was drawn, and which had probably already been read by the members of the grand jury, and I cannot presume that they would have been influenced, to the prejudice of defendants, by such newspaper comment in disregard of their duty to be guided by proper evidence. United States v. Terry, D.C., 39 F. 355, 359-361. As was said in that case: "To set aside an indictment because the jury are informed that one or more persons eminent for their official position or their social standing, or that a considerable number of their fellow-citizens or of the public journals, desire an indictment to be found, would be to adopt a rule which would in very many cases prevent the finding of any indictment whatever." 39 F. page 359.
It is also my view, even if the proceeding before the grand jury constituted gross irregularity, that the plea in abatement should not be sustained, because such irregularities were harmless. As stated above, the indictment does not charge an infamous crime and the defendants, therefore, could have been prosecuted by information.
Finally, motions to quash have been filed, urging that the indictment is duplicitous: First, on the ground that the means and methods used to effectuate the conspiracy are charged as separate indictable offenses; and, second, that the averment contained in paragraph 10 in Count 1, reincorporated by reference in Count 2, charges also a violation of Section 14 of the Clayton Act, 15 U.S.C.A. § 24. This paragraph states that whenever in the indictment reference is made to an act, deed or transaction on the part of any corporate defendant, such allegation shall be deemed to mean that the officers, agents and employees of said corporation, and its subsidiaries and affiliates, ordered or did such acts for and on behalf of said corporation while actively engaged in the management, direction and control of its affairs.
An analysis of the indictment convinces me that each alleged offense is sufficiently charged. The suggestion of duplicity, in part, appears to rest upon the assumption that each one of the alleged means and methods is charged as a separate indictable offense. The circumstances upon which the defendants rely establish, at the most, that the indictment, in the course of setting forth facts relevant to the offense which has been charged, discloses the commission of other offenses. Those circumstances, however, do not establish that the indictment in each Count charges defendants with having committed more than one offense. An indictment charging only one offense is not duplicitous merely because it discloses in its relevant facts that the defendants have committed an additional offense. In Rowan v. United States, 5 Cir., 281 F. 137, certiorari denied 260 U.S. 721, 43 S.Ct. 12, 67 L.Ed. 481, the Court states the rule: "A count in an indictment is not double, because it charges several related acts, all of which enter into and constitute a single offense, though such acts may in themselves constitute distinct offenses." 281 F. page 139.
The Circuit Court of Appeals for this Circuit has restated the rule in Dowdy v. United States, 4 Cir., 1931, 46 F.2d 417, 420, in a case of conspiracy to violate the prohibition act: "It is first objected that the indictment sets forth several independent and distinct conspiracies. This objection cannot be sustained. The indictment sets forth one conspiracy formed in the Middle District of North Carolina with a number of overt acts to effect the object of that conspiracy. On the face of the indictment, there is nothing to show that there were several distinct conspiracies. The fact that the conspiracy contemplated numerous violations of law as *194 its object does not make the indictment duplicitous. The gist of the offense is the conspiracy, and it is single, though its object is to commit a number of crimes."
It is immaterial whether the means and methods alleged were undertaken singularly or in concert because in either case they are alleged to have been in furtherance of the basic conspiracy charged in each Count. It is not necessary that each defendant in a conspiracy case perform the same function or play the same part in effectuating the common design. The activities of some conspirators may be different from those of others, some conspirators may not be known to others, and some may have entered the conspiracy at a different time than others, but all may be partaking in a criminal partnership to accomplish a common result. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314; Lefco v. United States, 3 Cir., 74 F.2d 66, 68, 69; Silkworth v. United States, 2 Cir., 10 F.2d 711, 717; Schwartzberg v. United States, 2 Cir., 241 F. 348, 352; Capriola v. United States, 7 Cir., 61 F.2d 5, 9; United States v. McConnell, D.C., 285 F. 164, 167; United States v. Direct Sales Co., D.C.S.C., 44 F.Supp. 623, filed April 27, 1942. The means and methods described in each count in the indictment in this case are alleged in support of the charged conspiracy and not as separate crimes. Consequently, on this ground the indictment is not duplicitous. United States v. Swift, D.C.N.D.Ill., 188 F. 92, 97; United States v. King, D.C.Mass., 229 F. 275, 277; Patterson v. United States, 6 Cir., 222 F. 599, 615-617.
Paragraph 10, which it is contended brings into question possible duplicity under Section 14 of the Clayton Act, states that reference in the indictment "to any act, deed, or transaction on the part of any corporate defendant, * * * shall be deemed to mean that the officers, agents, and employees of said corporation, and its subsidiaries and affiliates, ordered or did such act, * * * for and on behalf of said corporation while actively engaged in the management, direction, and control of its affairs." This paragraph of the indictment is merely descriptive. It seems clear from the examination of the indictment and of Section 14 of the Clayton Act that the indictment charges, in each count, a violation of the Sherman Act and does not charge a violation of Section 14 of the Clayton Act.
Section 14 of the Clayton Act, 15 U.S.C.A. § 24, sought to reach the individuals who were responsible for combinations entered into by corporations in restraint of interstate commerce. It provides that: "Whenever a corporation shall violate any of the penal provisions of the antitrust laws, such violation shall be deemed to be also that of the individual directors, officers, or agents of such corporation who shall have authorized, ordered, or done any of the acts constituting in whole or in part such violation, * * *". If the officer or agent is personally charged with participation in the conspiracy there is no necessity for the application of Section 14 of the Clayton Act. It is now well settled that officers and agents may be indicted with their corporation under the Sherman Act. United States v. MacAndrews & Forbes Co., C.C., 149 F. 823; United States v. American Naval Stores Co., C.C., 172 F. 455; United States v. General Motors Corporation, D.C., 26 F. Supp. 353, certiorari denied October 13, 1941, 314 U.S. 618, 62 S.Ct. 105, 86 L.Ed. ___. Inasmuch as officers and agents may be indicted with their corporation under the Sherman Act in a single count and since they are here so indicted, there is no necessity for an application of Section 14 of the Clayton Act. The corporate defendants and the individuals named in the indictment are charged with a conspiracy among themselves to restrain trade and commerce and to monopolize trade and commerce in potatoes. The charge in its entirety is under the Sherman Act.
The history of Section 14 of the Clayton Act shows that it was passed in order to create a method of punishing directors who took part in certain unlawful conduct under the anti-trust laws. Under Section 1 of the Sherman Act, a combination may be charged with entering into contracts to unlawfully restrain trade, apart from the offense of conspiracy. In some of the earlier cases under the antitrust law, individual defendants sought to escape the application of the law on the ground that it was the corporate defendant that had entered into unlawful contracts and that its officers and agents could not be held unless they were shown to have participated in a conspiracy. Union Pacific Coal Co. v. United States, 8 Cir., 1909, 173 F. 737, 745. Section 14 extended the scope of the personal responsibility for acts of corporations in violation of the *195 anti-trust laws, but it did not create any new specific tests of its own by which violations of the anti-trust laws may be measured, as do some sections of the Clayton Act. Cf. Standard Fashion Co. v. Magrane Houston Co., 258 U.S. 346, 42 S.Ct. 360, 66 L.Ed. 653; United Shoe Machinery Corp. v. United States, 258 U.S. 451, 42 S.Ct. 363, 66 L.Ed. 708.
The contention as to the application of Section 14 was rejected in the General Motors case, supra [26 F.Supp. 355], the Court, stating: "The indictment charges certain individual defendants with conspiring with the other defendants, including corporations in which they are officers. The fact that they are described as officers of the corporations does not mean that their conduct as such officers is complained of, but rather they are charged as individuals, together with the corporations, with violations of the Sherman Anti-Trust Act. This does not render the indictment duplicitous."
Had not the indictment in this case contained the descriptive Paragraph 10, it might have been contended that it was defective in not sufficiently charging with participation in the conspiracy the 17 individual defendants named. In Meehan v. United States, 6 Cir., 1926, 11 F.2d 847, 849, a removal case under an anti-trust indictment for conspiracy to fix prices of malleable steel castings and pipe, a contest was made on the ground that an individual defendant was not sufficiently described in the indictment as having participated in overt acts. The Circuit Court of Appeals held that the use of descriptive language in that indictment similar to that which is found in the indictment now under consideration was "sufficient, either under the general principles involved or section 14 of the Clayton Act." 11 F.2d page 850. See, also, United States v. Mathues, D.C.E.D.Pa.1925, 6 F.2d 149, 153.
No offense under Section 14 of the Clayton Act is charged in the present indictment, and as before stated, the fact that the indictment may disclose that the defendants have committed an additional offense does not make it duplicitous. The indictment specifies in two counts violations of the Sherman Act. To argue that it is duplicitous as charging an additional violation of the Clayton Act is analogous to arguing that it is duplicitous as charging a violation of the general conspiracy statute, 18 U.S.C.A. 88.
It is my view, for the foregoing reasons, that the indictment is certain and definite and not duplicitous, and the motions to quash on this ground, therefore, should be overruled.
An appropriate order will be filed in accordance with the foregoing conclusions.


997 A.2d 792 (2010)
TAYLOR ELEC.
v.
FIRST MARINER BANK.
Pet. Docket No. 112.
Court of Appeals of Maryland.
Denied June 21, 2010.
Petition for writ of certiorari denied.


114 A.2d 392 (1955)
Jessie M. SANTERRE
v.
Joseph TRILLO.
Ex. No. 9526.
Supreme Court of Rhode Island.
May 27, 1955.
Fergus J. McOsker, Providence, for plaintiff.
Joseph V. Ortoleva, Armando D'Iorio, Providence, for defendant.
*393 CAPOTOSTO, Justice.
This is an action in assumption to recover the difference between the sum due on a mortgage of personal property and the amount obtained therefor at a foreclosure sale. The case was tried before a justice of the superior court, sitting without a jury, who rendered a decision for the plaintiff for $574.75 without costs, which sum included interest from the date of the writ. In his brief in support of his bill of exceptions to this court, the defendant relies soley on his contention that the decision is against the law, the evidence, and the weight thereof. Therefore, all other exceptions are deemed to have been waived.
It is unnecessary to review the evidence to any extent. The controversy between the parties, each of whom had the benefit of counsel, arises over the miscarriage of an alleged argeement concerning the foreclosure of a chattel mortgage for $2,550 on property in a restaurant purchased by plaintiff in September 1952. The mortgage, which at that time was held by a finance company, showed an unpaid price for the restaurant and it was then in default. The defendant was one of three endorsers on the mortgage note. Following certain negotiations, mainly through counsel, plaintiff secured a transfer of the mortgage and subsequently instituted foreclosure proceedings with the object of having the personal property covered by the mortgage sold to he rat the auction sale for $2,550, thus apparently acquiring a clear title to such property for herself and at the same time relieving defendant of all obligations on the mortgage note. For some undisclosed reason the plan miscarried. Neither defendant nor his counsel was present at the sale, and the property was sold to plaintiff as the highest bidder for $2,000. The instant case was then brought to recover the balance of $550 due under the mortgage.
In contending for a reversal of the decision in question, which was plaily based on conflicting evidence determinable to a considerable extent on the credibility of the witnesses, defendant argues as if this were a suit in equity to set aside the auction sale of inequitable conduct rather than an action at law in assumpsit which was ultimately tried on a plea of the general issue. It is clear from the language of the trial justice in his decision from the bench that a similar argument was advanced to and properly rejected by him. It is now well settled that the decision of a trial justice on conflicting evidence will not be disturbed by this court unless it is clearly wrong. Since we are unable to reach such conclusion, the exception under discussion is overruled.
All of the defendant's exception are overruled, and the case is remitted to the superior court for entery of judgment on the decision.
FLYNN, C.J., not participating.


143 Conn. 620 (1956)
LINDY'S RESTAURANT, INC.
v.
ZONING BOARD OF APPEALS OF THE CITY OF HARTFORD ET AL.
Supreme Court of Connecticut.
Argued June 13, 1956.
Decided July 17, 1956.
BALDWIN, O'SULLIVAN, WYNNE, DALY and COMLEY, JS.
*621 Leon RisCassi, with whom was William R. Davis, for the appellant (defendant The Hofbrauhaus of Hartford, Inc.).
Harold Strauch, for the appellee (plaintiff).
DALY, J.
The defendant The Hofbrauhaus of Hartford, Inc., hereinafter referred to as the defendant, together with the owner of the building in which the defendant conducts its restaurant business, was granted a variance of the zoning regulations by the unanimous vote of the five members of the zoning board of appeals of Hartford. The plaintiff, the proprietor of a nearby restaurant, appealed to the Court of Common Pleas, alleging that it was aggrieved by the action of the board in granting the application of the defendant, and prayed that the court direct the board to deny the defendant's application. The court rendered judgment sustaining the appeal, and from that judgment the defendant has appealed to this court.
Since September, 1948, the defendant, as a tenant, has conducted at 371 Trumbull Street in Hartford a restaurant business where intoxicating liquors are sold to be consumed on the premises. The leased premises are a part of the Savoy Hotel building, which is located in a business 2 zone. The owner of the property and the defendant jointly applied to the board for a variance authorizing the use of a store at 365 Trumbull Street, in the owner's building, *622 as part of the defendant's restaurant. The hotel lobby separates the front of the store on Trumbull Street from the forefront of the restaurant. Behind the lobby the store and the restaurant are contiguous. The defendant proposes to have an opening made in the inside wall and to have the kitchen and the service and stand-up bars for the sale of alcoholic liquor in the part of the building known as 365 Trumbull Street. Within 1500 feet of the property there are many restaurants, grills and taverns serving alcoholic liquors.
The pertinent portions of the Hartford zoning ordinance provide, in substance, that in a business zone no premises shall be used for a restaurant "serving alcoholic liquor as defined in the Liquor Control Act" if any part of the premises is situated on any part of a lot within 1500 feet of property upon which there is "a restaurant, grill or tavern serving alcoholic liquor"; §§ 42-10(a) (5) (A) (a), 42-11(a) (1); that the zoning board of appeals may determine and vary the application of the zoning regulations in harmony with their general purpose and intent, this power to be exercised only if there is difficulty or unreasonable hardship in carrying out the strict letter of the ordinance and so that the spirit of it shall be observed, public welfare and safety secured and substantial justice done. § 42-20 (5).
Upon the plaintiff's appeal to the Court of Common Pleas, the question for determination was whether the board, in granting the defendant's application, acted legally and within its discretion, as claimed by the defendant, or illegally, arbitrarily and in abuse of its discretion, as claimed by the plaintiff. Benson v. Zoning Board of Appeals, 129 Conn. 280, 281, 27 A.2d 389; Levine v. Zoning Board *623 of Appeals, 124 Conn. 53, 57, 198 A. 173. The court decided the case upon the transcript of the proceedings at the hearing before the board.
It is true, as claimed by the defendant, that as a fundamental proposition the decisions of zoning authorities are to be overruled only when it is found that they have not acted fairly, with proper motives and upon valid reasons. McMahon v. Board of Zoning Appeals, 140 Conn. 433, 438, 101 A.2d 284; Mallory v. West Hartford, 138 Conn. 497, 505, 86 A.2d 668. In the instant case, it is clear from the pertinent provisions of the ordinance recited above that the board would be unwarranted in granting the defendant relief unless it was satisfied that the enforcement of the strict letter of the ordinance would result in "unreasonable hardship" to the defendant. The decisive question presented by the record upon this appeal, therefore, is whether it contains facts which are sufficient to establish this essential. Benson v. Zoning Board of Appeals, supra, 282. As shown by the transcript of the proceedings at the hearing before the board, the only hardship which the defendant will suffer if it is not permitted to use the additional space in carrying on its restaurant business is a financial one. We have repeatedly held that the power to grant a variance must be sparingly exercised. A pecuniary loss does not furnish the difficulty or hardship contemplated by the zoning ordinance. Paul v. Board of Zoning Appeals, 142 Conn. 40, 43, 110 A.2d 619; Heady v. Zoning Board of Appeals, 139 Conn. 463, 467, 94 A.2d 789; Celentano v. Zoning Board of Appeals, 136 Conn. 584, 587, 73 A.2d 101; Devaney v. Board of Zoning Appeals, 132 Conn. 537, 543, 45 A.2d 828. In sustaining the plaintiff's appeal, the court correctly decided that financial hardship did *624 not justify the board's granting the defendant's application for a variance.
There is no error.
In this opinion the other judges concurred.


84 F.3d 18
Basimah R. ABDULLAH, et al., Plaintiffs-Appellants,v.COMMISSIONER OF INSURANCE OF the COMMONWEALTH OFMASSACHUSETTS, et al., Defendants-Appellees.
No. 95-2316.
United States Court of Appeals,First Circuit.
Heard May 7, 1996.Decided May 20, 1996.

Jack E. Robinson, with whom Carpenter & Robinson, LLP, was on brief, for appellants.
Judith Fabricant, Assistant Attorney General, with whom Scott Harshbarger, Attorney General, E. Michael Sloman and Meyer, Connolly, Sloman & MacDonald, Boston, MA, were on brief, for appellees.
Before LYNCH, Circuit Judge, COFFIN, Senior Circuit Judge, and CUMMINGS,* Circuit Judge.
LYNCH, Circuit Judge.

1
Plaintiffs mounted a facial challenge to the constitutionality of the Massachusetts statute requiring the Massachusetts Commissioner of Insurance to establish at least fifteen territories for use in classifying risks for setting automobile insurance rates.  Mass.Gen. L. ch. 175E, § 4(d).  It is claimed this requirement is irrational on its face and thus violates the Equal Protection Clause of the Fourteenth Amendment.  Plaintiffs also assert that the statute on its face results in an unconstitutional taking in violation of the Fifth and Fourteenth Amendments.

2
Plaintiff Basimah Abdullah lives in the Roxbury section of Boston and is aggrieved that policy holders who live in Roxbury, a mostly poor community of color, may pay automobile insurance rates more than two and a half times those paid by policy holders with similar driving records who live in Wellesley, Massachusetts, an affluent suburb of Boston.  She is joined as plaintiff by the National Association of African Americans, Inc.  After considering cross-motions for summary judgment on stipulated facts, the district court granted the defendants' motion and denied the plaintiffs' motion.  We affirm.

3
It is important to be clear about the challenge plaintiffs have chosen to mount.  This is a facial challenge to the statute.  Plaintiffs have stipulated that no fundamental right is involved in the litigation and their challenge does not involve claims of race discrimination.  They do not challenge the group discount provisions of the insurance regulatory scheme, although they do attempt to bring those issues to the attention of the court.  Plaintiffs have appropriately stipulated that insurance risk does correlate with the territory in which the insured lives.  In light of these stipulations and the very narrow review available in a constitutional challenge to economic regulation by a state, grant of summary judgment in favor of the defendants was plainly correct.

The challenged statute requires:

4
For motor vehicle insurance rates, the commissioner shall establish a classification of risks which shall include a designation of not less than fifteen territories.

5
Mass.Gen. L. ch. 175E, § 4(d).

6
In order to prevail, the plaintiffs would have to show that the establishment of a minimum of fifteen territories for use in classifying automobile insurance risks could not be rational.  See Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S.Ct. 2118, 2124, 80 L.Ed.2d 772 (1984).  Indeed, plaintiffs would have to show that no set of circumstances exist under which the statute could be validly applied.  See Reno v. Flores, 507 U.S. 292, 301, 113 S.Ct. 1439, 1446, 123 L.Ed.2d 1 (1993) (facial attack on due process grounds).  Plaintiffs make two arguments, both demonstrating a misunderstanding of the role of the federal courts in reviewing state economic regulation.  They argue that because there is no legislative history setting forth the statute's purpose and because the statute allegedly results in unfairness it is unconstitutional.

7
Plaintiffs seek to reverse the burdens in constitutional economic regulation litigation by saying that the state, in a situation where no fundamental rights are involved, must provide legislative history explaining the purpose of its choice of classifications.  Cf. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 500-04, 109 S.Ct. 706, 725-27, 102 L.Ed.2d 854 (1989) (when legislature employs suspect classification, court reviews legislative findings to support the discrimination visited).  In the absence of legislative history plainly explaining the purpose of an economic regulatory provision, the plaintiffs posit, the statute must be presumed to be irrational.  But there is no such requirement and no presumption.  The Constitution does not impose on state legislatures the requirement of creating a legislative history record to justify economic regulatory legislation.  See FCC v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 2102, 124 L.Ed.2d 211 (1993) ("we never require a legislature to articulate its reasons for enacting a statute").

8
Plaintiffs who claim a statute is irrational bear the burden of showing that it is so.  Id.  ("[T]hose attacking the rationality ... have the burden to negative every conceivable basis which might support it."  (internal quotation omitted)).  That showing of irrationality is not made by simple arguments of perceived unfairness.  The statutory scheme must stand so long as it bears "some rational relationship to a legitimate state purpose."   San Antonio Indep.  Sch. Dist. v. Rodriguez, 411 U.S. 1, 44, 93 S.Ct. 1278, 1302, 36 L.Ed.2d 16 (1973).  We cannot say that on its face the legislative choice of requiring at least fifteen territories is irrational.  It is evident that insureds in different territories pose different risks and it is rational to permit the insurance companies to set premiums to reflect those different risks.  The choice by the legislature to mandate the establishment of at least fifteen territories may reflect a judgment that that number will provide some approximate reflection of the proper number of categories into which this type of risk should be divided.  That the state has chosen to classify purchasers into groupings based on objective characteristics and to use such groupings as a base on which to set rates is surely rational and promotes a more equitable insurance system.

9
In fact, the Commissioner has chosen to create 27 territories, a decision which is also rational on the theory that somewhat more territories more closely reflect the risk associated with the residents of those territories.  The parties have appropriately stipulated that the risk of loss "varies according to the town in which the [insured] vehicle[ ] [is] principally garaged."   They have also stipulated that each state uses some form of territorial subdivision system to set rates and such use of territorial assignment has existed in this country since 1917.  Prior rate-setting schemes in Massachusetts, also implementing some form of territorial system, have twice been held constitutional by the state courts.  See Doherty v. Commissioner of Ins., 328 Mass. 161, 102 N.E.2d 496 (1951);  Brest v. Commissioner of Ins., 270 Mass. 7, 169 N.E. 657 (1930).

10
The scheme itself has been tested in a manner consonant with democracy.  Prior unhappiness about the territorial rating system once led to an initiative petition which would have abolished the use of territories.  The voters rejected the petition by a margin of three to one.  Commonwealth of Massachusetts Election Statistics, Pub. Doc.  No. 43, at 343-45 (1950).  The Commissioner establishes territories in a public proceeding which is subject to judicial review, and we do not understand plaintiffs to complain about these procedures.  Indeed, the federal courts would abstain from considering the constitutionality of a particular decision of the Commissioner defining the territories or setting particular rates.  See Allstate Ins. Co. v. Sabbagh, 603 F.2d 228, 233 (1st Cir.1979) (affirming decision of district court to abstain from such a suit due to intensity of local interest and because Massachusetts had "indicated the importance it place[d] on coherency by concentrating review of all regulatory decisions in one court").

11
Even consideration of the facts surrounding Ms. Abdullah's individual situation does not establish the irrationality of the statute.  The territory in which Ms. Abdullah lives, the Roxbury section of Boston, does reflect greater insurance risks than the territory she has chosen as a comparator, the territory including the town of Wellesley, Massachusetts.  The parties agree that in 1993, the Roxbury territory, Territory 22, had 3.5 times the state average of bodily injury claims, while the Wellesley territory, Territory 2, had half the claims.  Further, if one looks at bodily injury per 100 accidents, the statewide average was 30.6.  The territory in which Ms. Abdullah lives had 56.6 bodily injuries per 100 accidents, while the Wellesley territory had 17.4.  As a final example, although insurance coverage for theft is not compulsory (see Mass.Gen. L. ch. 90, §§ 34A, 34B, 34O;  ch. 175, § 113O), in the Roxbury territory, the theft rate is five times the state average, while the rate in the Wellesley territory is one-half the state average.  These statistics support the rationality of the statutory scheme.

12
Plaintiffs' efforts to bootstrap their Equal Protection claim into some form of takings analysis is neither supported by the case law nor the facts.  Plaintiffs argue that because some ratings schemes have been held unconstitutionally confiscatory to the insurance company if the scheme deprives the company of an opportunity to achieve a fair return, see Aetna Casualty & Sur. Co. v. Commissioner of Ins., 358 Mass. 272, 263 N.E.2d 698, 703 (1970), Ms. Abdullah may assert a claim that the premiums she pays as an insurance purchaser are so high as to be unconstitutionally confiscatory.  Without accepting the premise of the argument or its leap from the property rights of a regulated insurance company to the premiums paid by an insured, the argument suffers from fatal flaws.  The facts asserted in support of the argument are not properly before us.  Ms. Abdullah states in her brief before this court that she pays more than one-third of the value of her car to insure it each year.  This, she says, effectively denies her the use of her automobile, as the Massachusetts legislature requires that automobiles be insured in order to be operated on a public way.  See Mass.Gen. L. ch. 90, § 34B.  And without a car, Ms. Abdullah says, her constitutional right to travel is infringed.  However, the parties agreed to litigate this case on stipulated facts.  The only facts with respect to Ms. Abdullah's personal circumstances that are properly before us are that she "resides ... in the Roxbury section of Boston," that she "owns a private passenger automobile which is garaged in Roxbury and is insured ... under the compulsory automobile insurance laws of the Commonwealth," and that the average rate for the standard package of insurance was higher in the Roxbury territory than in the Wellesley territory.

13
Even were there facts in the record to support Ms. Abdullah's claim, the argument collapses because a foundational piece is missing.  The statutory provision under attack does not per se result in any particular rate being set or premium being charged.  It simply requires that there be at least fifteen territories used in assessment of risk factors, and plaintiffs do not attempt to show that any possible designation of fifteen or more territories would result in a confiscatory rate for Ms. Abdullah.  Moreover, other risk factors such as driver class (which includes number of years of driving experience) and group discounts also go into the assessment of an individual's rates.  The facts before the court do not establish a causal connection between the statute facially attacked and the rates claimed to be confiscatory.  In essence, plaintiff's argument inappropriately asks us to turn this facial challenge to the statute into an as applied challenge.  Cf. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 494-95, 107 S.Ct. 1232, 1246-47, 94 L.Ed.2d 472 (1987) (in facial challenge, "mere enactment" of the statute must deprive plaintiff of economically viable use of her real property);  Gilbert v. City of Cambridge, 932 F.2d 51, 56 (1st Cir.), cert. denied, 502 U.S. 866, 112 S.Ct. 192, 116 L.Ed.2d 153 (1991).

14
Plaintiffs' claim at bottom is that the system is unfair.  It may or may not be.  There is evidence submitted by the defendants that in fact the Commissioner has required certain non-urban areas essentially to subsidize the insurance of persons, such as Ms. Abdullah, living in highly urban areas.  Importantly, however, the question of fairness is not properly addressed to this court.  Those arguments should be made to the state insurance regulatory authorities or to the Massachusetts legislature or directly to the citizenry through the petition process.  Our review is restricted to whether there is any rational basis for this scheme.  There is, and the constitutional challenge must fail.

15
For these reasons, the decision of the district court is affirmed.

*
 Of the Seventh Circuit, sitting by designation


                                                          FILED
                                                           MAR 10 2014
 1
                                                       SUSAN M. SPRAUL, CLERK
 2                                                       U.S. BKCY. APP. PANEL
                                                         OF THE NINTH CIRCUIT

 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                        )        BAP No.    NV-13-1263-JuKiTa
                                   )
 6   KENNETH HUFF and ROSEMARIE    )        Bk. No.    11-53159-BTB
     HUFF,                         )
 7                                 )        Adv. No.   12-05001-BTB
                    Debtors.       )
 8   ______________________________)
                                   )
 9   A & H INSURANCE, INC.,        )
                                   )
10                  Appellant,     )
                                   )
11   v.                            )        M E M O R A N D U M*
                                   )
12   KENNETH HUFF; ROSEMARIE HUFF, )
                                   )
13                  Appellees.     )
     ______________________________)
14
                    Argued and Submitted on January 24, 2014
15                            at Las Vegas, Nevada
16                           Filed - March 10, 2014
17             Appeal from the United States Bankruptcy Court
                         for the District of Nevada
18
          Honorable Bruce T. Beesley, Bankruptcy Judge, Presiding
19                       _________________________
20   Appearances:     Jeffrey L. Hartmann, Esq., of Hartman & Hartman,
                      argued for appellant A & H Insurance, Inc.;
21                    Kevin Darby, Esq., of The Darby Law Practice,
                      argued for appellees, Kenneth and Rosemarie Huff.
22                         _________________________
23   Before:   JURY, KIRSCHER, and TAYLOR, Bankruptcy Judges.
24
25
26        *
            This disposition is not appropriate for publication.
27   Although it may be cited for whatever persuasive value it may
     have (see Fed. R. App. P. 32.1), it has no precedential value.
28   See 9th Cir. BAP Rule 8013-1.

                                      -1-
 1            Judgment creditor A & H Insurance, Inc. (Appellant) filed
 2   an adversary proceeding against chapter 111 debtors, Kenneth and
 3   Rosemarie Huff (collectively, Debtors), seeking denial of their
 4   discharge under § 727(a)(2)(A).       On cross-motions for summary
 5   judgment, the bankruptcy court granted Debtors’ motion, denied
 6   Appellant’s, and entered an order consistent with its ruling.
 7   From this order, Appellant filed a timely appeal.
 8            Because we conclude that Appellant’s § 727 claim against
 9   Debtors was barred as a matter of law, we agree with the result
10   — albeit on other grounds — but VACATE the order based on the
11   bankruptcy court’s erroneous application of the law and REMAND
12   with instructions to dismiss the adversary complaint.
13                                  I.   FACTS
14   A.       Prepetition Facts
15            Appellant filed a lawsuit against Mrs. Huff2 in the Second
16   Judicial District Court in Washoe County, Nevada, alleging that
17   she breached an employment agreement.
18            On April 15, 2010, Mr. Huff received $75,047.30 from an
19   investment that he had made prior to his marriage to Mrs. Huff
20   and four days later he deposited it into Debtors’ checking
21   account.      In March 2011, Mr. Huff withdrew $40,000 from Debtors’
22   checking account and on the same day deposited the funds into a
23   joint account he had with his son (Joint Account).      On July 22,
24
          1
            Unless otherwise indicated, all chapter and section
25   references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
26   “Rule” references are to the Federal Rules of Bankruptcy
     Procedure.
27
          2
            Appellant also named Mt. Rose Insurance, LLC as a
28   defendant, but did not name Mr. Huff.

                                         -2-
 1   2011, Mr. Huff withdrew the $40,000 from the Joint Account and
 2   on the same day deposited the funds into Debtors’ checking
 3   account.     Debtors then purchased an annuity titled in the names
 4   of Mr. and Mrs. Huff with the funds.
 5            After these transfers, on August 9, 2011, following a jury
 6   trial, the state court entered a Corrected Final Judgment on
 7   Jury Award (Judgment) in Appellant’s favor and against Mrs. Huff
 8   in the amount of $303,772.05.3
 9   B.       Postpetition Facts
10            On October 7, 2011, Debtors filed a joint chapter 11
11   petition.     In Schedule B, they listed the annuity in the amount
12   of $40,000 and in Schedule C they claimed the annuity exempt.
13            On January 9, 2012, Appellant filed an adversary proceeding
14   against Debtors seeking denial of their discharge under
15   § 727(a)(2)(A) based on the transfer of the $40,000 from
16   Debtors’ Checking Account into the Joint Account.
17            On February 6, 2012, Debtors answered the complaint,
18   asserting general denials and pleading no affirmative defenses.
19            On March 8, 2012, Debtors filed their disclosure statement
20   and plan.     In their disclosure statement, Debtors described the
21   adversary proceeding filed by Appellant and stated that although
22   they believed they would prevail, if they did not, there would
23   be no discharge entered.      Debtors’ plan was a reorganization
24   plan with Debtors contributing their disposable income to fund
25   the plan.     Debtors classified Appellant as an unsecured creditor
26
          3
27          This amount included $182,821.55 in compensatory damages,
     $10,677.80 in prejudgment interest through June 9, 2011, and
28   $109,294.40 in attorneys fees and costs.

                                       -3-
 1   in the plan.   Finally, Debtors’ plan stated that they would
 2   receive their discharge under § 1141(d)(5).
 3        On March 15, 2012, Debtors filed a motion for summary
 4   judgment in the adversary proceeding.   After Appellant opposed
 5   Debtors’ MSJ on the grounds that it was premature and that
 6   additional discovery was needed, the parties stipulated to
 7   continue the hearing so that they could conduct discovery and
 8   take depositions.   By stipulation, the hearing was continued
 9   many times, and finally to December 20, 2012, so that Appellant
10   could file its cross MSJ.
11        Meanwhile, on September 19, 2012, the bankruptcy court
12   approved Debtors’ disclosure statement.   On October 5, 2012,
13   Appellant objected to confirmation of Debtors’ plan on several
14   grounds.   In its objection, Appellant stated: “The Debtors
15   acknowledge that if the adversary proceeding is successful by A
16   and H as plaintiff, there will be no discharge.”
17        On November 20, 2012, Appellant filed its cross MSJ in the
18   adversary proceeding asserting the following undisputed facts:
19   Debtors had a minor son named Ryan; Mr. Huff and Ryan had the
20   Joint Account at Umpqua Bank; Mr. Huff always maintained
21   possession, dominion and control of the Joint Account; Ryan did
22   not have access to the account and did not withdraw funds from
23   the Joint Account; on March 24, 2011, Mr. Huff transferred
24   $40,000 to the Joint Account; on July 22, 2011, Mr. Huff
25   transferred the $40,000 from the Joint Account back to Debtors’
26   Checking Account; and on August 9, 2011, Appellant obtained its
27   Judgment against Mrs. Huff.
28        Based on these undisputed facts, Debtors maintained that

                                    -4-
 1   they were entitled to judgment as a matter of law.      First, they
 2   asserted there was no “transfer” of property within the meaning
 3   of §§ 101(54)(D) and 727(a)(2)(A) because Mr. Huff never
 4   relinquished or parted with the funds, having had possession and
 5   control over the Joint Account at all times.      Second, Debtors
 6   argued that even if there was a transfer, they were entitled to
 7   the protection of the disclose-and-recover exception defense set
 8   forth in First Beverly Bank v. Adeeb (In re Adeeb), 787 F.2d
 9   1339 (9th Cir. 1986) because Mr. Huff returned the funds to
10   Debtors’ Checking Account before they filed their petition.
11   See In re Adeeb, 787 F.2d at 1334 (“transferred” under
12   § 727(a)(2)(A) means “transferred and remained transferred.”).
13            In November 2012, Appellant filed its cross MSJ, a
14   statement of undisputed facts in support, and the declaration of
15   Stephanie Ittner.4     Appellant argued that a “transfer” occurred
16   under the holding in Bernard v. Sheaffer (In re Bernard),
17   96 F.3d 1279 (9th Cir. 1996) when Mr. Huff withdrew the $40,000
18   from Debtors’ Checking Account and deposited it into the Joint
19   Account.     Appellant also asserted that when the funds were
20   transferred to the Joint Account, Debtors relinquished control
21   and parted ways with the $40,000.       According to Appellant,
22   Mr. Huff was on the Joint Account with his son Ryan because the
23   bank’s policy mandated that a minor could not be the only signor
24   on the account.     Appellant also pointed out that Mr. Huff
25   testified on May 10, 2012, in a deposition that the funds in
26
          4
27          Stephanie Ittner was employed by Hartman & Hartman,
     counsel for Appellant, and transcribed a portion of the recorded
28   § 341(a) meeting of creditors.

                                       -5-
 1   Ryan’s account were “just birthday gifts, could have been
 2   graduation money.    It’s basically Ryan’s.   It was Ryan’s savings
 3   account.”   Based on these facts, Appellant argued that the funds
 4   in the Joint Account belonged to Ryan and Mr. Huff held nothing
 5   but bare legal title - and then, only by virtue of being the
 6   required parental signatory on the account.    Finally, Appellant
 7   argued that Mr. Huff’s testimony at the creditors’ meeting
 8   demonstrated that Debtors had the subjective intent to hinder
 9   and delay their creditors.
10        On December 20, 2012, the bankruptcy court heard the
11   parties’ cross motions for summary judgment and requested
12   further briefing from the parties on issues not relevant to this
13   appeal.
14        On February 7, 2013, the bankruptcy court held a second
15   hearing on the parties’ cross motions for summary judgment and
16   issued a tentative ruling granting Debtors’ MSJ and denying
17   Appellant’s cross motion.
18        The next day, the bankruptcy court issued its ruling.       The
19   bankruptcy court determined that this case was somewhere in
20   between the facts of Adeeb and those in Bernard.     The court
21   found that unlike Bernard, Debtors did not attempt to lie and
22   conceal the movement of funds and did not squander the funds,
23   but rather moved the funds back into Debtors’ Checking Account
24   prior to the entry of the Judgment against Mrs. Huff and their
25   bankruptcy filing.   The court further found that Debtors
26   disclosed the annuity by listing it in their Schedules.
27        The bankruptcy court also noted that the funds were moved
28   in and out of Debtors’ Checking Account and the Joint Account,

                                     -6-
 1   an account that Mr. Huff controlled as evidenced by the fact
 2   that Mr. Huff was able to move the funds between the two
 3   accounts without the assistance or signature of his son.
 4   Because Mr. Huff had control and possession of the funds at all
 5   times, the court concluded that as a matter of law there was no
 6   “transfer” because the definition of a transfer under
 7   § 101(54)(D) requires the “disposing of or parting with
 8   property.”    The bankruptcy court further found that if there was
 9   a transfer, Debtors were entitled to the protection of the
10   disclose-and-recover exception defense under Adeeb.
11   Acknowledging that the case was a close one, the court
12   recognized that § 727 should be liberally construed in Debtors’
13   favor and strictly against Appellant.    In the end, the
14   bankruptcy court adopted its original decision, granting
15   Debtors’ MSJ and denying Appellant’s cross MSJ.
16           On April 11, 2013, the bankruptcy court confirmed Debtors’
17   plan.    The confirmed plan contains no provision whereby Debtors
18   agreed that there would be no discharge in their case if
19   Appellant prevailed in the § 727 adversary proceeding.
20   Moreover, the plan is not a liquidating plan as it contemplates
21   that Debtors will continue to rent some of their properties and
22   contribute their disposable income to the plan for a five-year
23   term.    The order confirming the plan has become final.
24           On May 17, 2013, the bankruptcy court entered the order
25   granting Debtors’ MSJ and denying Appellant’s cross motion in
26   the adversary proceeding.    Appellant timely appealed the
27
28

                                      -7-
 1   bankruptcy court’s order.5
 2                                   II.    JURISDICTION
 3              The bankruptcy court had jurisdiction over this proceeding
 4   under 28 U.S.C. §§ 1334 and 157(b)(2)(J).               We have jurisdiction
 5   under 28 U.S.C. § 158.
 6                                         III.    ISSUE
 7              The ultimate issue is this appeal is whether the bankruptcy
 8   court erred in granting Debtors’ MSJ and denying Appellant’s
 9   MSJ.       Our resolution of this issue turns upon the sub-issue of
10   whether Appellant’s § 727 claim against chapter 11 Debtors was
11   barred as a matter of law.
12                             IV.    STANDARD OF REVIEW
13              We review de novo a bankruptcy court’s ruling on
14   cross-motions for summary judgment.                Trunk v. City of San Diego,
15   629 F.3d 1099, 1105 (9th Cir. 2011).
16
17
18
19
            5
20          The order granting Debtors’ MSJ and denying Appellant’s
     cross motion was a final order because it disposed of the sole
21   claim asserted in the adversary complaint. Under Fed. R. Civ.
     P. 56, generally a separate document embodying a final judgment
22
     that is distinct from the order granting a motion for summary
23   judgment should be entered. See Rule 9021. As of June 4, 2013,
     no separate judgment had been entered on the bankruptcy court’s
24   docket. As a result, the clerk sent notice to the parties
     regarding the separate judgment requirement. On June 12, 2013,
25   Appellant submitted a “judgment” that the bankruptcy court
26   signed, but the judgment was simply a grant of Debtors’ MSJ and
     denial of Appellant’s cross motion. Therefore, no separate
27   judgment has been entered and the separate document requirement
     has been waived. Bankers Trust Co. v. Mallis, 435 U.S. 381, 388
28   (1978).

                                                  -8-
 1                                V.   DISCUSSION
 2   A.       Appellant’s § 727 Claim Against Chapter 11 Debtors Was
              Barred As A Matter of Law
 3
 4            Through its § 727 claims, Appellant seeks to deny Debtors
 5   their entire discharge.     Section 727(a) has no direct
 6   application to this bankruptcy case because Debtors filed their
 7   case under chapter 11.     Section 727(a) appears in subchapter II
 8   of chapter 7 and as such applies “only in a case under such
 9   chapter.”     § 103(b).   Section 727(a) therefore provides no
10   basis, standing alone, to deny a chapter 11 debtor’s discharge.
11   Torrington Livestock Cattle Co. v. Berg (In re Berg), 423 B.R.
12   671, 677 (10th Cir. BAP 2010).
13            However, § 727(a) applies in chapter 11 cases under the
14   limited circumstances described in section 1141(d).      The
15   chapter 11 discharge is triggered by entry of an order
16   confirming the plan (§ 1141(d)(1)) subject to § 1141(d)(5) when
17   the debtor is an individual.6      Section 1141(d)(1)(A) declares
18   that the confirmation of a plan discharges a chapter 11 debtor
19   from all debts arising before confirmation.      Section 1141(d)(3)
20   then creates an exception to this broad discharge, stating:
21            The confirmation of a plan does not discharge a debtor
              if—
22
              (A) The plan provides for the liquidation of all or
23            substantially all of the property of the estate;
24            (B) the debtor does not engage in business after
              consummation of the plan; and
25
26        6
            Under § 1141(d)(5)(A), in an individual’s case,
27   confirmation of the plan does not discharge any debt provided for
     in the plan until the court grants a discharge on completion of
28   all payments under the plan.

                                        -9-
 1        (C) the debtor would be denied a discharge under
          section 727(a) of this title if the case were a case
 2        under chapter 7 of this title.
 3   The three subparts of § 1141(d)(3) are written in the
 4   conjunctive, meaning that an individual chapter 11 debtor will
 5   only be denied a discharge if, in addition to the existence of
 6   grounds for denial of discharge under § 727(a), the confirmed
 7   plan is a liquidating one and the debtor does not engage in
 8   business after the plan has been consummated.    In re Williams,
 9   227 B.R. 589, 593 (D.R.I. 1998); In re Duncan, 2012 WL 5462917,
10   at *3 (Bankr. D. Ariz. 2012) (“If any one of the three subparts
11   cannot be shown, an individual creditor may not proceed solely
12   on the § 1141(d)(3)(C) prong (the § 727 feature of the
13   statute).”).
14        Here, Debtors’ confirmed plan is not a liquidating plan.
15   Although Debtors’ plan calls for some property to be turned over
16   to secured creditors, Debtors will continue to rent some of
17   their properties and also provide payment to creditors with
18   their disposable income over a five-year term.   Therefore, since
19   the first element under § 1141(d)(3)(A) was not met, Appellant’s
20   § 727 claim against Debtors was barred as a matter of law.
21   Accordingly, the matter should have been dismissed.
22   B.   The Bankruptcy Court’s Reasons For Granting Debtors’ MSJ
          Were In Error
23
24        Although the bankruptcy court reached the right result, it
25   did so for the wrong reasons.   To prevail under § 727(a)(2)(A),
26   a plaintiff must show, by a preponderance of the evidence:
27   (1) a disposition of property, such as transfer or concealment;
28   (2) the property belonged to the debtor; (3) the transfer

                                     -10-
 1   occurred within one year of the bankruptcy filing; and (4) the
 2   debtor executed the transfer with the intent to hinder, delay or
 3   defraud a creditor.     Aubrey v. Thomas (In re Aubrey), 111 B.R.
 4   268, 273 (9th Cir. BAP 1990); Grogan v. Garner, 498 U.S. 279,
 5   284 (1991); see Rule 4005.      Here, we are concerned only with the
 6   first element — whether there was a transfer.
 7            Historically, the term “transfer” has been granted a broad
 8   interpretation.     See Pirie v. Chi. Title & Trust Co., 182 U.S.
 9   438, 444 (1901) (stating that the term “transfer” should be
10   interpreted in its most comprehensive sense).     This definition
11   has endured over time.     More recently, in Barnhill v. Johnson,
12   503 U.S. 393, 397 (1992), the United States Supreme Court
13   stated:     “We acknowledge that § 101(54) adopts an expansive
14   definition of transfer. . . .”     The Bankruptcy Code itself
15   defines “transfer” in § 101(54)(D) expansively:     “each mode,
16   direct or indirect, absolute or conditional, voluntary or
17   involuntary, of disposing of or parting with—(i) property; or
18   (ii) an interest in property.”     The broad definition of
19   “transfer” applies in the context of the § 727.     See
20   In re Bernard, 96 F.3d at 1282.
21            In this case, the bankruptcy court quoted the definition of
22   a “transfer” under § 101(54)(D), but emphasized the phrase
23   “disposing of or parting with”, and focused on the fact that
24   Mr. Huff had possession and control at all times over the funds
25   after they were deposited in the Joint Account.7     Even if
26
27
          7
            At no time did the bankruptcy court analyze the “transfer”
28   with respect to Mrs. Huff.

                                       -11-
 1   Appellant’s § 727 claim against Debtors was not barred as a
 2   matter of law, the bankruptcy court’s analysis was misguided and
 3   incorrect as a matter of law.
 4        In deciding whether there was a transfer when it comes to
 5   withdrawals or deposits into bank accounts, we do not write on a
 6   clean slate in construing the phrase “disposing of or parting
 7   with.”   In Bernard, the Ninth Circuit rejected the debtors’
 8   argument that their withdrawals from a bank account were not
 9   transfers when the funds remained in their possession for two
10   reasons.   First, citing Adeeb, the Ninth Circuit reiterated that
11   depletion of assets (or injury to creditors) was not a
12   prerequisite to a denial of discharge under § 727(a)(2)(A).     Id.
13   Second, quoting the legislative history of the statutory
14   definition of a transfer, the court emphasized that the
15   definition of transfer was extremely broad, “[a] deposit in a
16   bank account or similar account is a transfer.”     Id.   (emphasis
17   in original) (quoting S.Rep. No. 989, 95th Cong., 2d Sess. 27
18   (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5813).
19        On this latter point, the Ninth Circuit reasoned that “if
20   depositing money into a bank account is a transfer, then later
21   withdrawing money from that account should be a transfer, too —
22   it ought to be a two-way street.”      To support its conclusion,
23   the court explained that under California law, “[a]s between the
24   bank and the depositor such money becomes property of the bank
25   and the bank becomes the debtor of the depositor for the amount
26   deposited.”   Id.   Based upon this relationship between the
27   depositor and bank, the court found that “[i]nstead of owning
28   money sitting in their accounts, the Bernards owned claims

                                     -12-
 1   against their bank.     When they withdrew from their accounts,
 2   they exchanged debt for money.     Thus, when the Bernards made
 3   their withdrawals they parted with property, satisfying the
 4   Code’s definition of transfer.”     Id. at 1282-83.   In the end,
 5   the Ninth Circuit determined that the debtors’ mere act of
 6   removing the money from their bank account to hinder their
 7   creditors warranted denial of their discharge.
 8            In light of the Bankruptcy Code’s expansive definition of
 9   “transfer,” which literally encompasses “every” mode of parting
10   with an interest in property, and the express holding in
11   Bernard, Mr. Huff’s withdrawal of the $40,000 from Debtors’
12   Checking Account was a “parting with” property, as was
13   Mr. Huff’s deposit of the funds into the Joint Account.     Under
14   the holding in Bernard, there is no ambiguity around the
15   definition of a transfer; withdrawals and deposits into bank
16   accounts clearly qualify.
17            Further, the rationale behind the Ninth Circuit’s holding
18   in Bernard is supportable under Nevada law.      Like California,
19   under Nevada law:
20            The relation between a bank and its depositors is that
              of debtor and creditor. There can be no doubt of this
21            proposition. Money deposited in a bank becomes part
              of its general assets, and the bank simply becomes a
22            debtor of the depositor. The absolute title to the
              money by the mere act of deposit passes to the bank.
23
24   McStay Supply Co. v. John S. Cook & Co., 132 P. 545, 548 (Nev.
25   1912).8     Therefore, by withdrawing the $40,000 from Debtors’
26
          8
27          This position is the majority position in the United
     States. See, e.g., N.Y. Cnty. Nat’l Bank v. Massey, 192 U.S.
28                                                      (continued...)

                                       -13-
 1   Checking Account, Debtors exchanged debt for money and then by
 2   depositing the money into the Joint Account, exchanged money for
 3   debt.       These transactions resulted in a “parting with” property
 4   under the holding in Bernard as a matter of law.         Finally, as
 5   stated in Bernard, the fact that the funds remained in the
 6   possession, custody or control of Mr. Huff does not change the
 7   result because depletion of assets is not a prerequisite to
 8   denial of a bankruptcy discharge under the holding in Adeeb.           In
 9   sum, the bankruptcy court erred in concluding that no transfer
10   occurred.
11           Likewise, the bankruptcy court erred in deciding that the
12   disclose-and-recover defense set forth in Adeeb applied under
13   these facts.      In Adeeb, the Ninth Circuit interpreted the term
14   “transferred” under § 727(a)(2)(A) to mean “transferred and
15   remained transferred.”      787 F.2d at 1344.   The court found that
16   its interpretation of the word “transferred” in § 727(a)(2)(A)
17   was “most consistent” with the statute’s legislative purpose.
18   The court noted that § 727(a)(2)(A)’s language demonstrated that
19   “Congress intended to deny discharge to debtors who take actions
20   designed to keep their assets from their creditors either by
21   hiding the assets until after they obtain their discharge in
22   bankruptcy or by destroying them.”        Id. at 1345.   Based on this
23   observation, the Ninth Circuit concluded that “[t]he only type
24
25           8
           (...continued)
26   138, 147–49 (1904); United States v. Banco Cafetero Panama,
     797 F.2d 1154, 1158 (2d Cir. 1986). See also Restatement
27   (Second) of Trusts § 12, cmt. l (1959) (“A general deposit of
     money in a commercial bank does not create a trust, but a
28   relation of debtor and creditor. . . .”).

                                        -14-
 1   of transfer that has the effect of keeping assets from creditors
 2   is a transfer in which the property remains transferred at the
 3   time the bankruptcy petition is filed.”    Id.
 4        Next, the court found its interpretation supported by the
 5   purposes of the Bankruptcy Code:    the equitable distribution of
 6   the estate among creditors and giving the honest debtor a fresh
 7   start.    Id.   By reading “transferred” in § 727(a)(2)(A) to mean
 8   “transferred and remained transferred,” the Ninth Circuit
 9   reasoned that honest debtors would be encouraged to recover
10   property they have transferred during the year preceding
11   bankruptcy which, in turn, facilitates the equitable
12   distribution of assets among creditors.    Id.   Taking into
13   consideration the debtor’s fresh start, the court noted that its
14   interpretation “permits the honest debtor to undo his mistakes
15   and receive his discharge.”
16            However, the Ninth Circuit held that the debtor’s
17   discharge may be granted only if “he reveals the transfers to
18   his creditors, [and] recovers substantially all of the property
19   before he files his bankruptcy petition. . . .”    Id.   Although
20   Adeeb was an involuntary case, the Panel subsequently revisited
21   the disclose-and-recover exception defense in the context of a
22   voluntary case in Beauchamp.     There, the Panel held that in
23   cases of voluntary petitions, both “disclosure and recovery”
24   must occur before the filing.    In re Beauchamp, 236 B.R. at 733.
25        There is no evidence in the record showing that Debtors
26   disclosed the transfers at issue to Appellant prior to the
27   petition date.    Further, although Mr. Huff transferred the funds
28   back into Debtors’ Checking Account prior to the petition date,

                                      -15-
 1   the recovery requirement under Adeeb means recovery for the
 2   benefit of creditors.   See Pac. W. Bank. v. Johnson (In re
 3   Johnson), 68 B.R. 193, 199-200 (Bankr. D. Or. 1986).      Plainly,
 4   Debtors did not recover the $40,000 for their creditors’ benefit
 5   when they invested it in an annuity they later claimed exempt.
 6          Despite the temporal limitations imposed by Adeeb and
 7   Beauchamp, and the fact that, unlike Adeeb, Debtors neither
 8   recovered for Appellant’s benefit nor disclosed to Appellant the
 9   transfer of the $40,000 prior to the petition date, the
10   bankruptcy court concluded that Adeeb should apply as a matter
11   of law.   The bankruptcy court’s decision to expand the express
12   temporal limitation set forth in Adeeb was in error.      We
13   reemphasize that the disclose-and-recover exception defense is a
14   narrow one:   disclosure and recovery must occur prior to the
15   petition date and recovery must be for the benefit of creditors.
16   Only then can the “honest debtor” receive his or her discharge.
17          Therefore, the bankruptcy court erred in two material ways
18   in granting Debtors’ MSJ:   (1) it found there was no transfer as
19   a matter of law and (2) if there was a transfer, it found the
20   “disclose-and-recover” exception of Adeeb applied, and it does
21   not.   Accordingly, we vacate the judgment based on the
22   bankruptcy court’s erroneous application of the law.
23                             VI.   CONCLUSION
24          For the reasons stated, we agree with the result — albeit
25   on other grounds — but VACATE the order based on the bankruptcy
26   court’s erroneous application of the law and REMAND with
27   instructions to dismiss the adversary complaint.
28

                                     -16-


677 F.2d 1014
UNITED STATES of America, Appellee,v.Victoria Yamamoto WALKER, Appellant.
No. 80-5111.
United States Court of Appeals,Fourth Circuit.
Argued Jan. 5, 1982.Decided May 5, 1982.

William Alden McDaniel, Jr., Washington, D. C.  (Brendan V. Sullivan, Jr., Williams & Connolly, Washington, D. C., Darrel L. Longest, Bernstein & Longest, Rockville, Md. on brief), for appellant.
Joseph T. Melillo, Sp. Asst. U.S. Atty.  (Justin W. Williams, U.S. Atty., Leonie M. Brinkema, Asst. U.S. Atty., Alexandria, Va., on brief), for appellee.
Before WINTER, Chief Judge, WIDENER, Circuit Judge, and WILKINS, District Judge.*
WIDENER, Circuit Judge:

1
Victoria Yamamoto Walker appeals her conviction on two counts of bank embezzlement, in violation of 18 U.S.C. § 656, and two counts of making false entries in bank records, in violation of 18 U.S.C. § 1005.  She was sentenced under the Federal Youth Corrections Act (YCA), 18 U.S.C. § 5010(b), to an indeterminate sentence on each count, to run concurrently.  Various errors have been alleged as to both crimes.  We find no error in the convictions for false entry and therefore affirm as to those.  We vacate the convictions for embezzlement and remand for a new trial.

2
* The government argues that application of the concurrent sentence rule is proper here, thus making consideration of the embezzlement counts unnecessary.  The concurrent sentence rule, applicable when a defendant has received concurrent sentences on multiple counts of an indictment, provides that a reviewing court need not pass upon the validity of defendant's conviction for additional counts once it has affirmed his conviction on one count, but only if "there is no substantial possibility that the unreviewed conviction will adversely affect the defendant's right to parole or expose him to a substantial risk of adverse collateral consequences."  United States v. Truong Dinh Hung, 629 F.2d 908, 931 (4th Cir. 1980).

3
We cannot say that there is no substantial possibility that the embezzlement convictions will not expose Walker to a substantial risk of adverse consequences.  Even the government cannot assure us that Walker's release date on her YCA sentence would not be affected.

II

4
We must therefore consider the embezzlement convictions.  One assignment of error raised requires a new trial on those counts.  The appellant contends, and we agree, that the district court incorrectly removed from the jury's consideration the issue of sole access to the funds involved, from which conversion, an element of the crime of embezzlement, may be inferred.  The instruction at issue reads:

5
Now, as applied to this case, the Court tells you that both the criminal intent and the actual taking of the money by the defendant may be proved by circumstantial evidence in an embezzlement and where the defendant alone has access to the property and that is in this case, money in the cash drawer and a dollar shortage is disclosed and no explanation of the shortage is tendered by the accused you may, but you do not have to reasonably infer from the circumstances that the custodian of the property embezzled the missing funds.  (Emphasis added)

6
While the district court correctly stated that conversion may be inferred from sole access plus an unexplained shortage, United States v. Powell, 413 F.2d 1037 (4th Cir. 1969), it is for the jury to decide if sole access did in fact exist.  The appellant produced evidence at trial which tended to show that sole access did not in fact exist.  In particular, there was testimony from the two depositors involved who could not identify Walker as the teller who accepted their deposits and who gave them their receipts.1  Also, Walker testified that on one of the days in question she found a duplicate key in the lock at her teller window.

7
A criminal defendant has the right to have the jury resolve all questions of fact, and it is error for the district judge to withdraw factual disputes from the jury.  Mims v. United States, 375 F.2d 135 (5th Cir. 1967); United States v. Ornstein, 355 F.2d 222 (6th Cir. 1966); United States v. McKenzie, 301 F.2d 880 (6th Cir. 1962); United States v. Raub, 177 F.2d 312 (7th Cir. 1949); 2 Wright, Fed'l Prac. & Proc. § 371.  The district court committed such error here by stating to the jury that this was a case of sole access.  Such a fact is for the jury to determine.

8
Accordingly, we affirm the conviction on the two counts of false entry (counts II and IV) and vacate the convictions on the embezzlement counts (counts I and III) and remand for a new trial on those counts.2

9
AFFIRMED IN PART; VACATED AND REMANDED IN PART3.

HARRISON L. WINTER, Chief Judge, dissenting:

10
When read as a whole,* I do not think that the instructions of the district court removed from the jury the question of whether this defendant had sole access to the moneys allegedly embezzled.  I respectfully dissent from the majority's contrary conclusion.

I.

11
The theory of the prosecution in this case was that defendant, admittedly employed as a bank teller on the days in question, received a deposit of a $5,000 cashier's check from a certain Evelyn Vines, and three days later a deposit of a $6,000 check from a certain Eileen Perez.  In each instance there was evidence that defendant falsified bank records to show that the checks were cashed rather than deposited and that she converted the proceeds to her own use.  Each depositor was given a receipt showing that the checks were deposited to her account, and the bank honored the receipts when the depositors' accounts were allegedly overdrawn.  Neither depositor could identify the teller who handled her transaction-one thought that the teller was female, the other thought that the teller was male.  However, the bank's records, i.e., the fraudulent cash slips and the fraudulent settlement sheets, bore the signature of defendant.

II.

12
In instructing the jury, the district court repeatedly stressed that the burden was on the government to prove beyond a reasonable doubt all elements of the crime and that a defendant never had the burden or duty of calling any witnesses or producing any evidence.  The district court explained the theory of the prosecution and then gave the instruction which the majority concludes was reversible error:

13
Now, as applied to this case, the Court tells you that both the criminal intent and the actual taking of the money by the defendant may be proved by circumstantial evidence in an embezzlement and where the defendant alone has access to the property and that is in this case, money in the cash drawer and a dollar shortage is disclosed and no explanation of the shortage is tendered by the accused you may, but you do not have to reasonably infer from the circumstances that the custodian of the property embezzled the missing funds.  Now, it does not require you to do so but you might infer from the circumstances, but you are the sole judges of the facts.  (emphasis added)

14
In my view, the phrase "that is in this case" was meant only to mean that there was circumstantial evidence that defendant alone had access to the property but not to foreclose the jury's finding as to who had sole possession.  Had the district court intended to foreclose the issue, the word "in" was superfluous.  My interpretation is reinforced by the fact that in practically the next breath, the court told the jury, "the evidence in this case raises a question for you to determine whether the defendant was, in fact, the criminal actor," and then called attention to the fact that there was no positive identification testimony, adding:

15
However, bear in mind the burden is on the Government not only to show the essential elements of this case, not only to show there was a falsification of checks marked as cash instead of deposit and a shortage in the drawer in the days in question equal to the amount of the check, they must satisfy you beyond a reasonable doubt that this defendant is the one who was solely in possession of that drawer all day, yes, and that she was the one who received the deposits and she is the one who made out and signed these things.  In other words, since there has not been an identification, the burden is on the Government as I say before you can draw an inference from the circumstances or anything.  (emphasis added)

16
Manifestly, a jury explicitly told that its function was to find whether a defendant was solely in possession in order to convict could not reasonably understand that that factual issue was foreclosed.

17
I think that the factual issue of whether or not there was sole possession from which the permissible inference could be drawn was fairly put to the jury.  Since I find no merit in defendant's other contentions, I would affirm the judgment entered on her conviction.

*
 United States District Court for the District of South Carolina, sitting by designation

1
 One depositor, Evelyn Vines, identified the teller that she gave her deposit to as a white woman, while Walker is Japanese.  The other depositor, Eileen Perez, testified that the teller she dealt with was a man

2
 We further find that the convictions for false entry and embezzlement were not so intertwined that it was highly probable that Walker was prejudiced on the false entry counts by the erroneous instruction on the embezzlement counts.  Cf. United States v. Caudle, 606 F.2d 451, 454 (4th Cir. 1979).  The record contains abundant evidence of the false entries.  For example, the evidence shows Walker's signature on the two settlement sheets which reflect the transactions in question as payouts rather than the deposits they were

3
 The dissent argues that the instructions read as a whole are clear.  We disagree.  We think the instructions read as a whole are at best misleading, for in one place the jury is told that they must find sole access and in another they are told that such a finding is left to them.  First instructing a jury in one way and then in another, as was done here, requires reversal for a new trial as has been held in numerous cases on factual situations not substantially different from the one at hand.  E.g. United States v. Pope, 561 F.2d 663 (6th Cir. 1977); United States v. Garza, 426 F.2d 949 (5th Cir. 1970); Gagliardo v. United States, 366 F.2d 720 (9th Cir. 1966); Polansky v. United States, 332 F.2d 233 (1st Cir. 1964); Smith v. United States, 230 F.2d 935 (6th Cir. 1956); Frank v. United States, 220 F.2d 559 (10th Cir. 1955)
While we do not doubt that reading the instructions as a whole is required as hornbook law, we think its application here is an oversimplification and that the correct rule is stated in Frank, supra, at p. 565, quoting McFarland v. United States, 85 U.S.App.D.C. 19, 174 F.2d 538, 539 (1949), as follows:
"If a charge to a jury, considered in its entirety, correctly states the law, the incorrectness of one paragraph or one phrase standing alone ordinarily does not constitute reversible error; but it is otherwise if two instructions are in direct conflict and one is clearly prejudicial, for the jury might have followed the erroneous instructions.  Nicola v. United States, 3 Cir., 1934, 72 F.2d 780, 787; Drossos v. United States, 8 Cir., 1924, 2 F.2d 538, 539."

*
 It is horn book law that this is the rule to be applied.  See United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 1912, 44 L.Ed.2d 489 (1975); Reeves v. Read, 596 F.2d 628, 629 (4 Cir. 1979)


578 F.2d 1159
17 Empl. Prac. Dec. P 8572
Anthony T. LEE et al., Plaintiffs,United States of America, Plaintiff-Intervenor, and Amicus Curiae,National Education Association, Inc., Plaintiff-Intervenor, Appellant,v.PIKE COUNTY BOARD OF EDUCATION et al., Defendants-Appellees.
No. 77-1821.
United States Court of Appeals,Fifth Circuit.
Aug. 25, 1978.

Myron H. Thompson, Dothan, Ala., Solomon S. Seay, Jr., Montgomery, Ala., for appellant.
Oliver W. Brantley, Donald G. Walker, Superintendent of Ed., Troy, Ala., for defendants-appellees.
J. Stanley Pottinger, Asst. Atty. Gen., Civ. Rights Div., Dept. of Justice, Washington, D.C., Ira DeMent, U.S. Atty., Montgomery, Ala., for U.S.A.
Appeal from the United States District Court for the Middle District of Alabama.
Before COLEMAN, TJOFLAT and FAY, Circuit Judges.
TJOFLAT, Circuit Judge:

1
This appeal was taken from the district court's denial of a motion to enforce the remedial provisions relating to teacher salaries of the Pike County, Alabama, school desegregation decree.  The only issue presented is whether the Pike County Board of Education violated the decree by paying the appellant, Eddie K. Jones, a black principal, a lower salary on account of his race.1  The district court found that salary disparities existed among the principals in the Pike County School System, but that they were the result of payment practices applicable to all of the principals without consideration of race.  Record at 40.  There are no facts in the record from which one could draw the conclusion that Jones has been discriminated against because of his race.  Since the district court's findings are, therefore, not clearly erroneous, we affirm.

2
Desegregation efforts in the Pike County School System2 found their way to federal court in the parent case of Lee v. Macon County Board of Education, 231 F.Supp. 743 (M.D.Ala.1964) (three-judge court).  See Lee v. Macon County Board of Education, 429 F.2d 1218, 1219-20 (5th Cir. 1970).  Numerous Alabama school systems were intermittently made parties defendant in that case; ultimately, over one hundred separate school systems were brought under the court's supervision.  Individual plans were submitted for each school system, and many of the plans were incorporated in final decrees entered by a three-judge court.  No appeals were taken from any of these decrees.

3
The final order desegregating the Pike County School System was entered on February 12, 1970, and amended on March 23, 1970.  On March 31, 1970, the three-judge court, which had retained jurisdiction over each of the school systems before it, transferred jurisdiction of the consolidated case to the federal district courts of Alabama in whose territories the defendant school boards resided.  Venue for the Pike County phase of the litigation was consequently laid in the Middle District of Alabama.

4
One of the remedial provisions of the Pike County decree required the School Board to utilize nonracial criteria in determining compensation for professional staff, including principals such as the appellant, Jones.  On May 10, 1976, the plaintiffs and several members of the professional staff, including Jones, filed a motion for further relief, alleging that the Board had violated the 1970 desegregation decree in numerous respects.  During the pretrial proceedings that followed, the movants' claims were reduced to those of three black staff members, Jones being one, who contended that the Board had taken race into account in setting their salaries.  After a hearing on the merits, the district court found that race had not been a factor and denied relief.  Of the three staff members affected by the district court's determination, only Jones has appealed.

5
Jones' claim for relief is not predicated on 42 U.S.C. §§ 1981 or 1983 (1970) or Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 (1970).  It is, instead, simply an application by an intervenor, in a school desegregation case, seeking relief under remedial provisions of a final desegregation order that in part were fashioned by the court to protect his rights.  Under our precedent, he has standing to enforce such rights by applying for relief to the district court presiding over the school case, when jurisdiction to enforce the remedial provisions of the final decree has been retained.  See Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044, 1049 (5th Cir. 1975) Cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976).

6
Jones contends that the district court's finding that racial considerations were not a factor in the Board's establishment of his salary is not supported by the record.  We cannot agree.  Whether we review the finding of nondiscrimination under the clearly erroneous standard of Fed.R.Civ.P. 52 or, as Jones suggests, under the standard applicable to Title VII cases, wherein the issue of discrimination addresses an ultimate fact not subject to the clearly erroneous rule, Causey v. Ford Motor Co., 516 F.2d 416, 421 (5th Cir. 1975), we are convinced that the district court's finding is correct.

7
The conclusion that Jones' salary was never the product of racial bias is made clear from the statistical evidence he introduced to support his claim.  As the district court found, during the three year period covered by the statistical evidence "between two and four of the white principals were paid less than Mr. Jones and . . .  between one and three of the white principals were paid more than Mr. Jones."  Record at 40.  The court also found that elementary principals were generally on a lower pay scale than high school principals; principals with "AA" certificates were paid more than those with "1" certificates; and principals of smaller schools were paid less than principals of the larger schools.  Jones was an elementary school principal, with a "1" certificate, and was in charge of one of the larger elementary schools.  No principal in the system was similarly situated; thus there was no one with whom a direct comparison could be made.  However, when one considers Jones' certification, the length of his tenure and the size of the school he supervised vis-a-vis those of the other principals, it is clear from the statistical evidence that his salary was in keeping with those attained by his colleagues.  Moreover, there is no indication from the statistics that the lower salaries impacted on the black principals.

8
Given a record containing no direct or circumstantial evidence that race played a role in the Board's establishment of the principals' and Jones' salaries, we cannot fault the district court for being "unable to find that unequal treatment appears to follow a racial pattern so as to place the burden on the school board to show by clear and convincing evidence that racial discrimination is not the explanation."  Record at 40.  The judgment of the district court is

9
AFFIRMED.

1
 Appellant alleges that he has been paid less than his nonblack counterparts because of his race since the entry of the decree in 1970, but he offered evidence covering only the school years 1974-75, 1975-76, and 1976-77

2
 Multiple school systems are located in Pike County.  Only the county's school system is involved in this appeal