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Caselaw Access Project

2024-08-24T03:29:51.129235

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UNITED STATES of America, Plaintiff-Appellee, v. Marta RODRIGUEZ and Raul Jesus Alverez, Defendants-Appellants. No. 72-1909 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 9, 1973. Rehearings Denied May 17, 1973. Lewis Williams, Eugene J. Howard, Miami, Fla., for Rodriguez. Donald I. Bierman, Miami, Fla., for Alverez. Robert W. Rust, U. S. Atty., Barbara E. Vicevich, Asst. U. S. Atty., Miami, Fla., for United States. Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges. Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5th Cir. 1970, 431 F.2d 409, Part I. PER CURIAM: Appellant Marta Rodriguez was convicted by a jury of distribution of heroin and cocaine, of possession of those narcotics with intent to distribute them, and of conspiracy to commit the foregoing offenses. Appellant Raul Alverez was convicted after a separate jury trial of conspiracy to possess and distribute the narcotics. Alverez contends that the evidence was insufficient to support his conviction. The record shows that Alverez was to obtain narcotics, destined for Chicago, from an anonymous “connection,” and was to give the narcotics to an alleged co-conspirator, Rene Vandenades, in Miami, Florida. The Government, through the testimony of a paid informant, proved that Alverez met Vandenades and/or the informant in Miami on three occasions. At the first meeting, Alverez said that his “connection” was reluctant to deal with Vandenades because Vandenades was “hot”; but he told Vandenades to go to the beach that afternoon. The first meeting was abruptly terminated when a companion of Alverez told the group that he suspected that they were under surveillance. Later that day, Alverez met the informant for a second time. Alverez again said that the connection was afraid that Vandenades’ involvement might result in the loss of “four or five kilos,” worth a considerable sum, but told the informant to rent a car and be prepared to leave for Chicago the following morning. Alverez did not appear at the appointed time the next morning, but during his third meeting with the informant that night he explained that he had been unable to appear because he was trying (unsuccessfully) to get “something” from the connection. At this third meeting, Alverez asked Vandenades to accompany him the next day to negotiate with the connection. This was the sum of the Government’s direct evidence against Alverez. The remainder of the testimony showed that Vandenades abandoned the scheme of sending narcotics to Chicago and decided to send them instead to New York. The informant, accompanied by Marta Rodriguez, drove Vandenades to a service station where he took the narcotics from the trunk of his car; the informant and Rodriguez then drove around Miami while Vandenades made up smaller packages of narcotics in the back seat of the informant’s car. The Government’s case against Alverez was hardly conclusive, but viewing the evidence in the light most favorable to the Government we believe there was sufficient evidence upon which the jury could base a finding of guilt beyond a reasonable doubt. In none of Alverez’s meetings with Vandenades or the informant were the words “narcotics,” “heroin,” or “cocaine” used; but a special agent of the Bureau of Narcotics and Dangerous Drugs testified that when Alverez said “kilos” he was using the common reference to a quantity of narcotics. Moreover, we cannot accept the contention that Alverez did nothing in furtherance of the conspiracy, because the record clearly demonstrates that Alverez was negotiating with the connection for the narcotics, and enlisted Vandenades’ aid when the connection appeared ready to abandon the deal. Finally, even considering Vandenades’ change of plans with regard to the destination of the narcotics, we are not prepared to say that the jury could not reasonably conclude that Alverez’s negotiations with the connection enabled Vandenades to ultimately obtain the narcotics. Therefore, we reject Alverez’s claim that there was insufficient evidence to warrant his conviction. We have considered the other contentions of both appellants, and find them to be without merit. Affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

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James A. McCRAVY, Petitioner-Appellee, v. Robert MOORE, Warden, Tennessee State Penitentiary, Respondent-Appellant. No. 72-1863. United States Court of Appeals, Sixth Circuit. Argued Feb. 7, 1973. Decided April 3, 1973. R. Jackson Rose, Asst. Atty. Gen., Nashville, Tenn., for respondent-appellant; David M. Pack, Atty. Gen., State of Tennessee, of counsel. Eric D. Christiansen (court appointed), Burkhard & Christiansen, Green-ville, Tenn., for petitioner-appellee. Before MILLER, KENT and LIVELY, Circuit Judges. KENT, Circuit Judge. This is an appeal by the State of Tennessee from the District Court’s order granting the petitioner-appellee’s application for a writ of habeas corpus, filed under the provisions of 28 U.S.C. § 2254. Appellee was convicted in the State Courts of Tennessee of the forcible rape of his wife’s 14-year old sister. The offense was alleged to have occurred while the appellee’s wife was at work. Within a very short time appellee was apprehended by the police. The police went to his home where the offense was alleged to have occurred, and when his wife returned the police informed her of the arrest and asked permission to search the house for evidence. The record shows that the wife consented and immediately departed for the hospital to see her sister. The police entered the house and found in the bedroom towels, sheets and a bedspread, all of which were covered with blood. These articles were introduced at the trial, Appellee’s conviction was appealed and affirmed when the Supreme Court of Tennessee refused to review the conviction. The District Court granted the petition for writ of habeas corpus on the theory that the search of the Appellee’s home was illegal under Tennessee law despite the consent to the search given by the wife. In affirming the dismissal of the State post-conviction petition the Tennessee Court of Appeals, East Section, had this to say: “Specifically the petitioner complains that the rules of law relied on in the opinion of-this Court (Eastern Section at Knoxville, 1969) holding that his wife ‘had the right and did waive the right the defendant had to rely upon the Constitutional prohibitions against unreasonable searches and seizures’ as set out in Lester v. State, 216 Tenn. 615, 393 S.W.2d 288, is not the same rule of law followed in other jurisdictions.” McCravy v. State, No. 30 (Tenn.Crim.App. Jan. 4, 1971). It appears obvious to this Court that the Tennessee Court of Appeals made a ruling upon the legality of the search under Tennessee law with which we find no fault. Thus, the only issue presented here and the only issue with which the District Court should have been concerned was whether the search was made in violation of the Constitution, or Laws, or Treaties of the United States. The rule has been clearly stated in Frias v. Wilson, 373 F.2d 61, 62 (9th Cir. 1967): “ * * * the issue in a federal court remains whether judged by federal standards a petitioner was accorded the minimum guarantees afforded by the United States Constitution.” In the instant case it appears that while the Appellee and his wife had had some difficulties because of his claimed excessive drinking and association with other women, nevertheless, it is clear that they had equal right to possession and occupancy of the home which was searched. The ability of such a joint occupant of premises to consent to a search has been before the United States Courts on numerous occasions. Most of the Courts, including this Court, in United States v. Alloway, 397 F.2d 105 (6th Cir. 1968), have held that a joint occupant may authorize a search. See also United States v. Hughes, 441 F.2d 12 (5th Cir. 1971), cert. denied 404 U.S. 849, 92 S.Ct. 156, 30 L.Ed.2d 88 (1971); United States v. Wilson, 447 F.2d 1 (9th Cir. 1971), cert. denied 404 U.S. 1053, 92 S.Ct. 723, 30 L.Ed.2d 742 (1972); White v. United States, 444 F.2d 724 (10th Cir. 1971); United States v. Cataldo, 433 F.2d 38 (2nd Cir. 1970), cert. denied 401 U.S. 977, 91 S.Ct. 1200, 28 L.Ed.2d 326 (1971); United States v. Bamberger, 456 F.2d 1119 (3rd Cir. 1972), cert. denied 406 U.S. 969, 92 S.Ct. 2424, 32 L.Ed.2d 668 (1972). In Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), the United States Supreme Court held that the seizure of incriminating clothing found in a duffle bag used by defendant and his cousin, the search of which was consented to by the cousin, was legal, saying at page 740, 89 S.Ct. at page 1425: “Since Rawls was a joint user of the bag, he clearly had authority to consent to its search.” Appellee’s argument in regard to difficulties and animosity toward a husband affected by a search to which the wife had consented was considered and rejected in United States v. Lawless, 465 F.2d 422 (4th Cir. 1972), and in Stein v. United States, 166 F.2d 851 (9th Cir. 1948), cert. denied 334 U.S. 844, 68 S. Ct. 1512, 92 L.Ed. 1768 (1948). We are forced to the conclusion that the Appellee’s wife, having an equal right to access and occupancy of the premises, had the right to consent to the search. Thus the search did not violate any Constitutional right of the Appellee within the meaning of Title 28 U.S.C. § 2254, and the District Court was in error in granting a writ of habeas corpus. The case will be reversed and remanded to the District Court for dismissal of the petition. . § 2254. (a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Miss Thais HARRIS, Plaintiff-Appellant, v. CITY OF HOUSTON, TEXAS, Defendant-Appellee. No. 72-3279 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 28, 1973. Rehearing Denied April 27, 1973. Thais Harris, pro se. Joseph G. Rollins, Sr. Asst. City Atty., Houston, Tex., for defendant-appellee. Before BELL, GODBOLD and INGRAHAM, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409. PER CURIAM: In 1970, appellant filed a petition removing two Houston municipal ordinance violation charges to the federal district court under the authority of 28 U.S.C.A. § 1443. The charges arose out of appellant having more than three dogs on her premises, and also in failing to have a kennel license. As background, she contended and now contends that the charges were filed as part of a conspiracy against her by her neighbors and city officials because of her half Greek ancestry and because her neighbors are of German and British descent. The district court denied removal in 1970. This appeal is from the denial of the motion of appellant, filed in 1972, praying that the district court order dismissal of the ordinance violation charges. We construe the denial in 1970 as tantamount to remanding the ordinance violation cases and thus there was no jurisdiction in the district court to consider appellant’s motion, filed in 1972, to dismiss the same charges which were still pending in the Municipal Court of the City of Houston. Out of an abundance of caution, however, we consider the 1972 proceedings as an additional removal petition. See 28 U.S.C.A. § 1446(c). So considered, remand was again due for the reason that, as in the 1970 removal, there was no showing whatever of the violation of a right which rests on a federal law providing for equal civil rights stated in terms of racial or national origin equality. Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966); Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966). Appellant has proceeded pro se and we add the additional statement for clarity: She is not entitled under any known authority to remove the municipal charges in question to the federal court. Affirmed.

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Caselaw Access Project

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2024-08-24T03:29:51.129683

Lonnie Keith LEE, Plaintiff-Appellant, v. WASHINGTON PARISH, STATE OF LOUISIANA, Defendant-Appellee. No. 72-3740. United States Court of Appeals, Fifth Circuit. April 9, 1973. Lonnie Keith Lee, pro se. William Guste, Atty. Gen., Baton Rouge, La., Woodrow W. Erwin, Dist. Atty., Franklinton, La., John N. Gallaspy, Asst. Dist. Atty., Bogalusa, La., for defendant-appellee. Before WISDOM, AINSWORTH and CLARK, Circuit Judges. PER CURIAM: The appellant, who is a prisoner of the State of Louisiana, filed a federal habeas corpus petition in the district court challenging the validity of his conviction for attempted murder. In his petition the appellant conceded that he had not exhausted his remedies within the Louisiana courts, but argued that his attempts to comply with 28 U.S.C. § 2254 had been thwarted. The district court dismissed the action finding that he had an adequate remedy in the form of his direct criminal appeal pending in the Louisiana Supreme Court. The appellant filed a timely notice of appeal from the district court’s dismissal order and the case was docketed in this Court. We dismiss the appeal for want of jurisdiction. Despite his notice of appeal from the district court’s adverse ruling, the appellant neither requested nor obtained a certificate of probable cause. Section 2253 of Title 28 of the United States Code unequivocally states that an appeal from the denial of a state prisoner’s habeas petition may not be taken unless a certificate of probable cause is granted either by the district court or by this court. See also Rule 22(b), F.R.App.P.; Hooks v. Fourth District Court of Appeal, 5th Cir. 1971, 442 F.2d 1042; Hines v. Pitcher, 5th Cir. 1971, 440 F.2d 792; McFrederick v. Florida, 5th Cir. 1958, 261 F.2d 52. It would be improper for this Court to make the initial determination of whether a certificate of probable cause should be granted or denied. Stewart v. Beto, 5th Cir. 1971, 454 F.2d 268. This Court has advised the appellant that he should apply for a certificate of probable cause in the district court, but he has failed to follow our instructions. The lack of a certificate of probable cause is jurisdictionally fatal. This appeal is Dismissed. . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s local Rule 9(c)(2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981.

f2d_476/html/0286-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

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UNITED STATES of America, Appellee, v. Jose Luis GARCIA, Appellant. No. 72-3179. United States Court of Appeals, Ninth Circuit. April 5, 1973. James M. Gattey, Gregorich, Gattey & Hunt, San Diego, Cal., for appellant. Harry D. Steward, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty., Chief, Grim. Div.; James W. Meyers, Asst. U. S. Atty., San Diego, Cal., for appellee. Before BROWNING and ELY, Circuit Judges, and SOLOMON, District Judge. Honorable Gus J. Solomon, United States District Judge, Portland, Oregon, sitting by designation. OPINION PER CURIAM: Garcia was convicted of two drug offenses proscribed by 21 U.S.C. § 174. His offenses were committed, and he was indicted, before May 1, 1971, the date when the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. 91-513, 84 Stat. 1236, 21 U.S.C. § 801 et seq., became effective. That Act repealed the provisions of 26 U.S.C. § 7237(d), which had provided for mandatory sentences for offenses such as those committed by Garcia and had further provided that the provisions of 18 U.S.C. § 4202, permitting parole, should not be applicable to such cases. On this appeal, Garcia makes only one contention, i. e., that he was entitled, contrary to the District Court’s interpretation, to the application of the mSre lenient provisions of the 1970 Act. He bases his contention on the fact that his conviction and sentence occurred after the effective date of the Act. Very recently, a similar contention was rejected by the Supreme Court of the United States. Bradley v. United States, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973). Accordingly, the judgment of the District Court is affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Travis Lloyd BALL, Plaintiff-Appellee, v. DELTA MARINE DRILLING COMPANY et al., Defendants-Appellants. No. 72-2655. United States Court of Appeals, Fifth Circuit. April 11, 1973. Lawrence J. Ernst, New Orleans, La., for Delta Marine and Fidelity & Cas. Co. Patrick E. Jones, Metairie, La., for plaintiff-appellee. Before TUTTLE, THORNBERRY and DYER, Circuit Judges. PER CURIAM: We have carefully considered the grounds for appeal and with a single exception find them to be without merit. We conclude that the verdict and judgment as to liability for Ball’s injury must be sustained. The one error which we find occurred relates to the refusal of the trial court to instruct the jury that any award made for future loss of earnings should be discounted to present values where the defendant specifically requested such a change. Travelers Insurance Company v. Garfield Hurst, 343 F.2d 160 (5th Cir., 1965) clearly implies that such a charge, if requested, should be given. The court there stated: “We note that no instruction was requested on this point and that no objection was made upon failure to give such an instruction. On oral argument, counsel for the appellant stated, in effect, that he made a tactical decision not to object after the jury had been retired because of his fear of overemphasizing the quantum of damages. In the circumstances of this case and in light of the damages which were awarded, we do not feel that the absence of such a charge constitutes plain error.” 343 F.2d at 161. See also United States v. Varner, 400 F. 2d 369, 373 (5th Cir., 1968). Here the request was duly made, and on failure of the court to give it, the court stated: “Mr. Reporter, put in the record . . . give the defendant an exception to all written charges . . . requested by the defendant which were refused.” This obviated the necessity for counsel to renew his objection at the close of the charge. We conclude that the error was substantial and prejudicial to the defendant and conclude that therefore the verdict for damages cannot stand. The case is remanded to the trial court for the purpose of submitting only the question of damages to the jury under proper instructions. The judgment is vacated and remanded to the trial court for further proceedings not inconsistent with this opinion. Vacated and remanded.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Robert Earl BRECKENRIDGE, Plaintiff-Appellant, v. Governor Preston SMITH, et al., Defendants-Appellees. No. 72-3825 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 3, 1973. Robert Earl Breckenridge, pro se. Crawford Martin, Atty. Gen., Austin, Tex., for defendants-appellees. Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges. Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: This appeal is taken from an order of the district court denying the petition of a Texas state prisoner for a “declaratory judgment” and for the writ of habeas corpus. We affirm. Appellant was convicted upon trial by jury of possession of marijuana, a narcotic drug, puruant to Article 725b, Vernon’s Ann.Texas Penal Code. He was sentenced to 18 years imprisonment. In his petition filed below, appellant requested the impanelling of a three-judge court to consider the constitutionality of Article 725b. He urged that the law is constitutionally unsound in that it erroneously classifies marijuana as a narcotic drug and sought to have the crime reduced to misdemeanor status and the penalty reduced in addition to his immediate release. This Court has previously found Article 725b to be constitutionally sound, rejecting the same arguments which appellant offers. Rener v. Beto, 5th Cir. 1971, 447 F.2d 20. Appellant is not entitled to relief. The judgment below is affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

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Donald E. MORAN, Appellant, v. FORD MOTOR COMPANY, a Corporation, Appellee. No. 72-1417. United States Court of Appeals, Eighth Circuit. Submitted Feb. 12, 1973. Decided April 20, 1973. Martin A. Cannon, Omaha, Neb., for appellant. John B. Henley, Omaha, Neb., for appellee. Before LAY and BRIGHT, Circuit Judges, and NICHOL, District Judge. Sitting by designation. LAY, Circuit Judge. The plaintiff, Donald E. Moran, appeals from the judgment dismissing his claim for personal injury damages allegedly arising from the defendant Ford Motor Company’s breach of warranty and negligence. Plaintiff’s injuries were incurred in an automobile accident on July 9, 1967, near Millard, Nebraska, when his car swerved off the road and overturned. Plaintiff claims that Ford Motor Company breached its duty to furnish a ear reasonably fit for the purposes intended and was negligent, inter alia, in the design and assembly of the wheel suspension system. After plaintiff presented his case before a jury the district court granted defendant’s motion for a directed verdict holding that plaintiff had failed to make a submissible case for the jury. On appeal plaintiff raises three grounds of error: 1. Whether the trial court erred in directing a verdict for the defendant for the reason that plaintiff failed to offer sufficient evidence to sustain a prima facie case; 2. Whether the trial court erred in simultaneously refusing a continuance and forbidding the testimony of Herbert Egerer, an engineer and metallurgist, because his name was not promptly communicated to the defendant in compliance with pretrial orders; and 3. Whether the court properly excluded the expert opinion testimony of Robert Stungis, an automobile repairman. We find it unnecessary to respond to plaintiff’s contentions 1 and 2 because of our reversal based on plaintiff’s last contention, i. e., the exclusion of the expert testimony of the witness Robert Stungis. The accident occurred on July 9, 1967, while Moran was driving his 1966 Ford Mustang on a dry, paved highway. He testified that the ear began to “shimmy,” then suddenly it veered left across the road and rolled over. Following the accident it was discovered that the right front upper ball joint of the car’s suspension system was separated. Plaintiff contends that said upper ball joint of the suspension system was defective prior to the accident. Thus he presented considerable evidence at trial to show that although the right side of the front fender collapsed against the right wall of the engine compartment upon impact, the right front wheel and tire were not damaged. Plaintiff’s theory is that the wheel had become detached prior to impact because otherwise the wheel would have been within the wheel well at the time of impact and the tire and wheel would have been damaged. Plaintiff called as an expert witness Robert Stungis, an owner and operator of a body and fender shop. Stungis had been in the .auto repair business for eighteen years and had frequently examined wrecked cars. In doing so he had on many occasions inspected suspension systems to discover what parts were broken or worn, what had caused the damages and what pressures were exerted that might cause damage. He stated that he was familiar with the function and operation of a ball joint and that from his experience in the auto repair business he was able to recognize visible wear patterns on most automobile metal parts. Although the trial court allowed Stungis to point out wear that was readily observable, the trial judge did not permit him to testify whether the lower ball joint post was worn, whether the ball was set in the socket straight, whether the wear patterns were uniform, whether he could distinguish between a wear produced condition and one that was produced by an accident, or whether he had an opinion on how the wear oceurred. The trial judge believed Stungis was “unquestionably qualified to do repair work” but he was not “qualified metallurgically-wise, or to demonstrate cause.” A witness may be qualified as an expert based upon his knowledge, skill, experience, training or education. See generally Hill v. Gonzalez, 454 F.2d 1201 (8 Cir. 1972); Harris v. Smith, 372 F.2d 806 (8 Cir. 1967); Skyway Aviation Corp. v. Minneapolis, Northfield & Southern Railway Co., 326 F.2d 701 (8 Cir. 1964); cf. United States v. Atkins, 473 F.2d 308 (8 Cir. 1973); Rules of Evidence for United States Courts and Magistrates, Rule 702, 56 F.R.D. 183, 282 (1972). The test is whether the witness’ training and experience demonstrate a knowledge of the subject matter. Hill v. Gonzalez, supra, 454 F.2d at 1203. And practical experience as well as academic training and credentials may be the basis of qualification. Grain Dealers Mut. Ins. Co. v. Farmers Union Coop. Elevator & Shipping Ass’n., 377 F.2d 672, 679 (10 Cir. 1967); cf. United States v. Atkins, supra. See also Mathine v. Kansas-Nebraska Natural Gas Co., Inc., 189 Neb. 247, 202 N.W.2d 191 (1972). Whether a witness is qualified to testify as an expert is normally within the discretion of the trial court. See, e. g., Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962); United States v. Atkins, supra; White v. United States, 399 F.2d 813 (8 Cir. 1968); Rhynard v. Filori, 315 F.2d 176 (8 Cir. 1963). However, as this court observed in Twin City Plaza, Inc. v. Central Surety & Insurance Corp., 409 F.2d 1195, 1203 (8 Cir. 1969): “If the witness, based upon his background skill, possesses extraordinary training to aid laymen in determining facts and if he bases his answer upon what he believes to be reasonable scientific or engineering certainty, generally the evidence should be admitted, subject, of course, to the cross-examination of the adversary. The weaker the scientific opinion or the less qualified the expert, the more vigorous will be the cross-examining attack and undoubtedly the less persuasive will be the opinion to the trier of fact.” In the instant case we believe Stungis possessed sufficient knowledge and practical experience to make him well qualified as an expert witness. The failure to permit his testimony resulted in prejudicial damage to plaintiff’s attempt to prove causation. We refuse to speculate, as defendant urges, as to whether plaintiff could have proved a submissible case with Stungis’ testimony. To answer this question requires resolution of a hypothetical record not before us. This we have no power to do. We reverse and remand for a new trial. . The suit was originally filed in February 1968. It was subsequently dismissed without prejudice after the same suit was refiled on June 3, 1971.

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Caselaw Access Project

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BERTIE’S APPLE VALLEY FARMS, an Idaho corporation, et al., Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees. No. 72-2741. United States Court of Appeals, Ninth Circuit. March 29, 1973. Lloyd J. Webb, Webb, Pike, Burton & Carlson, Twin Falls, Idaho, for plaintiffs-appellants. Sidney E. Smith, U. S. Atty., Thomas C. Frost, Asst. U. S. Atty., Boise, Idaho; Dale Kent Frizzell, Asst. Atty. Gen., Dept, of Justice, Washington, D. C., for defendants-appellees. Before MERRILL, ELY and WRIGHT, Circuit Judges. PER CURIAM: Plaintiffs sued in state court to quiet title to real and personal property. The government successfully petitioned under 28 U.S.C. § 1444 to remove to the district court where the action was dismissed. The district court dismissed this action as one against the United States to which it had not consented. The United States is immune from suit except where it consents. United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Plaintiff contends that Congress has given its consent to suit in this case in 28 U.S.C. § 2410, which provides in relevant part: “ . . . the United States may be named a party in any civil action or suit in any district court, or in any State court having jurisdiction of the subject matter (1) to quiet title to . real or personal property on which the United States has or claims a mortgage or other lien.” The United States does not claim a mortgage or other lien interest in the property involved herein. Rather, the United States claims title to the property, pursuant to an order of the Referee in Bankruptcy for the District of Idaho, who confirmed a sale by the trustee to the Small Business Administration. Congress in § 2410 did not consent to suits against the United States where the United States claims a title interest as distinguished from a lien interest. See Wells v. Long, 68 F.Supp. 671 (D.Idaho 1946) aff’d on other grounds, 162 F.2d 842 (9th Cir. 1947). The order of the district court is affirmed.

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Caselaw Access Project

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Benjamin F. DAUGHTERY, Appellant, v. Warden HARRIS, U. S. Leavenworth Prison, Appellee. Thomas J. PIPER, Jr., Appellant, v. C. E. HARRIS, Warden, Leavenworth Penitentiary, Individually and in his Official capacity, Appellee. Nos. 72-1363 (L-2035), 72-1620 (L-2132). United States Court of Appeals, Tenth Circuit. April 10, 1973. Rehearing Denied in No. 72-1363 May 9, 1973. Donald E. Cordova, Denver, Colo., for appellants. Bruce E. Miller, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., Topeka, Kan., with him on the brief), for appellee. Before LEWIS, Chief Judge, McWILLIAMS, Circuit Judge, and CHRISTENSEN, District Judge. LEWIS, Chief Judge. Appellants appeal from separate judgments of the United States District Court for the District of Kansas denying injunctive and declaratory relief from rectal searches conducted by officials of the United States Penitentiary at Leavenworth, Kansas. The proceedings in both cases were in forma pauperis. Because the basic facts and issues are identical the appeals were consolidated for argument before this court. Appellants are inmates at the United States Penitentiary, Leavenworth, Kansas. Appellant Daughtery was subjected to two rectal searches by a physician’s assistant preparatory to being transferred to the custody of the United States Marshal’s Office for transportation to a court appearance. Appellant Piper was also given a rectal examination prior to the United States Marshal’s transporting him to testify in court. The purpose of these searches is to locate any concealed contraband which could be used to threaten the security of a marshal or the court. The authority to undertake rectal searches stems from a grant of power to the Bureau of Prisons, 18 U.S.C. §§ 4041, 4042, to manage and regulate all federal penal and correctional institutions. The Director of the Bureau of Prisons is empowered to formulate policies and procedures for commitment, control and treatment of inmates in federal institutions. 28 C.F.R. §§ 0.95, 0.96, 0.97. Prison officials at local institutions are also authorized to promulgate procedures consistent with their peculiar needs and problems. Pursuant to this authority the Bureau of Prisons and officials at the United States Penitentiary, Leavenworth, Kansas established procedures concerning the discharge of inmates to the United States Marshal’s Office. Policy Statement No. 7300.53 of the Bureau of Prisons requires a United States Marshal to exercise every precaution when transferring prisoners, including conducting thorough searches of the person. Due to specific problems which have arisen with the transfer of prisoners in the District of Kansas, prison officials at Leavenworth developed local procedures concerning contraband and searches before releasing prisoners to the United States Marshal’s Office. This directive states: Effective immediately, dress-out procedures for all inmates to be released to the custody of the U. S. Marshals or U. S. Deputy Marshals will be conducted in the basement of the Administration Building. The Receiving and Discharge Officer will carry the dress-out clothing and escort the inmate to the release room at the time the Marshal arrives to assume custody. The inmate will be given a “strip shake-down” removing all institutional clothing and a rectal examination given by the M.T.A., and dressed in release clothing which will be thoroughly shaken down in the presence of the Marshal or his Deputy. (Director of the United States Penitentiary, Leavenworth, Kansas, October 18, 1971.) It is the validity of this “strip shakedown” and rectal examination procedure which is brought into question on appeal by appellants’ contention that such procedures violate constitutional guarantees of privacy and prohibitions against unreasonable searches and seizures. Appellants’ assertions must be examined in light of the basic rule that control and management of federal penal institutions lies within the sound discretion of the responsible administrative agency. Judicial relief will only be granted upon a showing that prison officials have exercised their discretionary powers in such a manner as to constitute clear abuse or caprice. Perez v. Turner, 10 Cir., 462 F.2d 1056, 1057; Evans v. Moseley, 10 Cir., 455 F.2d 1084, 1086. The district court, based upon the pleadings and after taking judicial notice of facts contained in other files and records of the court and facts subject to judicial knowledge, summarily denied relief. We affirm, rejecting appellants’ contentions that the searches are a basic violation of their right to privacy unless special cause is shown in justification and that, in any event, the searches must be conducted by medical doctors and in complete privacy. Leavenworth is a maximum security institution containing many dangerous inmates and any consideration of the penitentiary’s security regulations must be realistic. There are many known incidents of concealed contraband being carried by prison inmates in the rectal cavity. Several serious episodes, including the wounding of a court officer, were attributable to the ability of inmates to smuggle weapons out of prison. Given these circumstances coupled with an increasing need to assure the safety of our law enforcement and court officials, this policy of allowing rectal searches must be considered reasonable unless contradicted by a showing of wanton conduct. Graham v. Willingham, 10 Cir., 384 F.2d 367, 368. To hold that known cause comparable to that required for a search warrant in private life must precede such a search would be completely unrealistic. It is usually the totally unexpected that disrupts prison security. Of course, any search should be conducted by prison officials under judicious circumstances. Cf. Bethea v. Crouse, 10 Cir., 417 F.2d 504, 506. Rectal examinations are not medically dangerous as such and while such an examination when done for diagnostic purposes requires professional expertise a search for contraband does not. The searches were here conducted according to the directives issued by the Bureau of Prisons and the Leavenworth administration and the examinations were carried out by trained paraprofessional medical assistants in a designated area and under sanitary conditions. Also, there was no attempt on the part of officials or medical personnel to humiliate or degrade the appellants. The conclusion, therefore, to be drawn from a survey of the facts is that the rectal searches in question were, and are, a necessary and reasonable concomitance of appellants’ imprisonment. The judgments of the district court are severally affirmed. . The Chief Correctional Supervisor at the United States Penitentiary, Leavenworth, Kansas has stated that a typical but incomplete list of contraband items would include the following: Weapons of any type, sawblades, narcotics, intoxicants, barbituates, money, pornography, single edge razor blades, or any item which might be used to effect an escape, or any unauthorized books, magazines, newspapers, clothing, medicines, tools, foodstuffs, etc. (Directive of the Chief Correctional Supervisor, United States Penitentiary, Leavenworth, Kansas.)

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UNITED STATES of America, Appellee, v. Michael Francis O’NEILL, Appellant. No. 72-1995. United States Court of Appeals, Ninth Circuit. April 2, 1973. Martha Goldin, Atty. (argued), Alan Saltzman, Saltzman & Goldin, Hollywood, Cal., for appellant. D. Henry Thayer, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for appellee. Before HUFSTEDLER and GOODWIN, Circuit Judges, and SKOPIL, District Judge. Honorable Otto R. Skopil, Jr., United States District Judge, District of Oregon, sitting by designation. SKOPIL, District Judge: Michael Francis O’Neill appeals from a conviction for refusal to submit to induction in violation of 50 U.S.C. App. § 462(a). Appellant registered with Local Board No. 82 in 1967, and the board classified him 1-A in 1969. He was ordered to report for induction on August 4, 1969, but was found unacceptable because of pending criminal charges. In September, 1970, he was ordered to report for an induction physical and, when he failed to report, became available for induction pursuant to Local Board Memorandum No. 106. On March 11, 1971, the board mailed appellant a Notice to Report for Induction on March 24, 1971. He failed to report on that date. Appellant’s father died on January 23, 1971. On March 22, 1971, appellant informed Vera Fleck, the local board’s executive secretary of the death of his father. He said that his imminent induction would result in a hardship for his mother. Appellant was given a Dependency Questionnaire. On March 23, the complete questionnaire was filed, together with a statement from appellant’s mother, a letter from a doctor, and a letter from an attorney. Vera Fleck prepared a summary of the appellant’s hardship claim on a “call sheet.” She read the summary over the telephone to three members of the local board. The board njembers were telephoned individually. Each decided the registrant’s classification should not be reopened nor his induction postponed. Appellant was informed of this determination by telephone and letter. He was advised to report for induction as ordered. A registrant, to be granted a reopening of his classification after an induction order is issued, must make two ;prima facie factual showings. First, he must show that there has been a change in his status resulting from circumstances beyond his control. 32 C.F.R. § 1625.2 prohibits reopening without a specific finding by the local board of such a change. Second, he must present facts which would justify a different classification. United States v. Stacey, 441 F. 2d 508, 510 (9th Cir. 1971); United States ex rel. Brown v. Resor, 429 F.2d 1340, 1343 (10th Cir. 1970). Appellant states he satisfied both conditions. Appellant contends the procedure used was unauthorized and does not meet the requirements of 32 C.F.R. § 1625.2. He makes three arguments: 1) 32 C.F.R. § 1625.2 requires the local board to “specifically” find the newly sought classification resulted from a change in circumstances over which the registrant had no control. The converse is also true. Where the classification is not reopened, the board must specifically find that the claim is either factually insufficient or matured before he received the induction order. United States ex rel. Brown v. Resor, 429 F.2d at 1343. 2) The board’s discretion to reopen must be based on a review of all the information available to it, not on selective information furnished by the executive secretary. United States v. Miller, 455 F.2d 358, 360-361 (9th Cir. 1972); United States v. Ford, 431 F.2d 1310 (1st Cir. 1970). 3) The board’s procedure in permitting the executive secretary to give some of the board members a summary of the new information received over the telephone and making a brief notation in the minutes of action does not satisfy the requirements of either (1) or (2). The members of the board did not consider, discuss, or vote as a board on appellant’s claim. This failure to act as a board violates the reopening procedure. United States v. Walsh, 279 F.Supp. 115, 120-121 (D.Mass.1968). The procedure by which a local board must determine whether a registrant meets both of his prima facie burdens presents difficult problems. Here, the determination was made by separate telephone calls between the'clerk and three of the board members. A similar procedure was held invalid in United States v. Walsh, supra. There a registrant was declared delinquent after refusing to submit to a physical examination required by his 1-A-O classification. He sought to have the board reopen and reconsider his case. If he submitted new facts which made out a prima facie case for a different classification, the local board was required to reopen his case. The court found it was unnecessary to decide “whether the additional facts presented by the defendant required the local board as a matter of law to reopen and consider anew the defendant’s classification. The defendant, however, was entitled under 32 C.F.R. § 1625.4 to have such additional facts considered by the local board.” Id. at 120-121. The court found the failure to meet to consider, discuss, and vote as a board violated the implicit requirements of 32 C.F.R. § 1604.52(d). In order to properly perform their classification function, the local board members must receive and consider all relevant communications from or concerning registrants. 32 C.F.R. § 1622.1(c); United States v. Kelly, 473 F.2d 1225 (9th Cir., 1973). Mulloy v. United States, supra, also emphasized the importance of the classification reopening procedure and held a local board may not arbitrarily refuse to reopen a registrant’s classification. Appellant’s board did not act arbitrarily. It attempted to accommodate his last-minute request. We cannot say that his claim was so lacking in merit that there was no reasonable basis to reopen his case. When a registrant presents a non-frivolous claim for a classification change after receipt of his induction order, the local board members must consider all of the new information in order to determine whether the dual prima facie burden has been met. United States v. Kelly, supra. The presentation of selective information by the clerk-in separate telephone conversations with only three members of the board does not fulfill the requirements. This failure violated § 1604.56 and was prejudicial. Since we reverse on reopening requirement grounds, we need not reach the question of whether appellant met his dual prima facie burden. Reversed. . Accord, Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970). . Now 32 C.F.R. § 1604.56, which provides in pertinent part: “A majority of the members of the local board shall constitute a quorum for the transaction of business. A majority of the members present at any meeting at which a quorum is present shall decide any question of classification. Every member present, unless disqualified, shall vote on every question or classification.” . § 1622.1(c) in effect at the time herein, and is now 32 C.F.R. § 1622.1(a). . The Selective Service System is not precluded from establishing timeliness rules, but no such rules existed in this case.

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Thomas R. PRINCE, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee. No. 72-3610 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 26, 1973. Robert R. Bryan, Birmingham, Ala., for petitioner-appellant. William J. Baxley, Atty. Gen., Don C. Dickert, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee. Before WISDOM, AINSWORTH and CLARK, Circuit Judges. Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N.Y., 431 F.2d 409, Part I (5th Cir. 1970). PER CURIAM: This is another appeal by Thomas R. Prince from the district court’s denial of a habeas corpus petition. As in his former petition filed in November 1971, Prince alleges that he has been denied his constitutional right to a speedy trial as guaranteed by the Sixth and Fourteenth Amendments. This court affirmed the dismissal of his previous petition on the jurisdictional ground that at the time of filing Prince was not in custody pursuant to a judgment of a state court as required for relief under 28 U.S.C. § 2254(a). Prince v. Bailey, 464 F.2d 544 (5th Cir. 1972). While Prince has now been convicted and sentenced to serve a term of 20 years on the robbery charges which were the subject of his former habeas proceedings, this second petition for relief is still premature. His conviction is on direct appeal in the state court system of Alabama. 28 U.S.C. § 2254(b) and (c) make it crystal clear that courts of the United States are bound to refrain from exercising their power under § 2254 so long as a petitioner has any effective right to obtain relief from constitutional errors under remedies provided by the courts of the state ordering his custody. The district court lacked jurisdiction to grant relief and, therefore, the denial of the writ is Affirmed. . An appeal from his conviction was docketed April 20, 1972, in the Alabama Court of Criminal Appeals, from whence no decision has yet issued.

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Joseph GREMILLION, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, RespondentAppellee. No. 72-3404 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 12, 1973. Joseph Gremillion, pro se. William J. Guste, Jr., U. S. Atty., S. J. Dileo, Jr., Sp. Counsel, Baton Rouge, La., for respondent-appellee. Before BELL, GODBOLD and INGRAHAM, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409. PER CURIAM: Appellant, a Louisiana state prisoner serving a sentence for armed robbery, was denied federal habeas relief without an evidentiary hearing and now appeals. There was a full evidentiary hearing in the state habeas court and the district court ruled on the basis of the state record. We affirm on that basis and the appertaining law. The only assignment of error here which requires discussion is the contention that the bill of information on which appellant pled guilty was invalid due to an alteration. The bill also charged a co-defendant. It appeared that after appellant’s plea, the bill was in fact altered in connection with the plea of the co-defendant so as to charge a different and lesser crime as to the co-defendant. The result was that the bill no longer charged the appellant with a crime. The charge against him had, however, been recorded in the minutes of the court at the time of his plea. We hold that this alteration of the original bill does not rise to the level of a substantial federal question. Affirmed. . The other assignments of error found to be without merit by the district court on the basis of the state record are: 1. Appellant’s attorney waived formal arraignment without the knowledge or approval of the applicant; 2. his plea of guilty was entered by counsel, rather than by appellant personally ; 3. his guilty plea was not knowingly or voluntarily entered because he did not personally enter the plea. Also he was not advised of the charges against him and of the consequences of the plea; 4. counsel did not represent the applicant’s best interests because he offered the applicant $5,000 to plead guilty and clear his co-defendant; and 5. that his counsel was incompetent.

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Leonard LAMAR and John Miller, Plaintiffs-Appellees-Cross Appellants, v. ADMIRAL SHIPPING CORPORATION, Defendant-Third-Party Plaintiff-Appellant-Cross Appellee, v. SHAW COMPANY, Third-Party Defendant-Appellee. No. 72-2097 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 22, 1973. Rehearing Denied April 26, 1973. John H. Schulte, Miami, Fla., for appellant. Arthur Roth, Miami, Fla., for Leonard Lamar and John Miller. Richard F. Ralph, Miami, Fla., for Shaw Co. Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc., v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I. DYER, Circuit Judge: We are called upon once again to determine whether a shipowner, having paid damages for personal injuries suffered by a longshoreman on board its vessel, may recover indemnity from the longshoreman’s stevedore employer on the theory that the stevedore breached its WWLP. The district coui't dismissed the third party complaint on the merits. We reverse. Plaintiffs Lamar and Miller cross-appeal from the district court’s refusal to apportion their attorneys’ fees so that they would be borne by the plaintiffs and the compensation carrier for whose benefit the fund was created. We affirm. Lamar and Miller were employed by Shaw as longshoremen to discharge cargo from the M/V NICA, owned by Admiral. The vessel was equipped with an aluminum accommodation ladder or gangway approximately thirty feet long and thirty inches wide with thirty steps. It was affixed to a turntable at the top with a through bolt, and the turntable was held in place with through bolts and plate. The base rested level on the cement apron of the dock on a roller. The steps were level. In the early morning a Boarding Clerk, Immigration Officer, Customs Officer, Public Health Officer, and Department of Agriculture Officers used the gangway without incident. O’Brian, the stevedore superintendent for the discharging of cargo, inspected the gangway and found it to be bowed from top to bottom, eight to twelve inches out of alignment almost midway its length. At 0800 hours two gangs of longshoremen totaling twenty-two men proceeded single file up the ladder. Eight or nine men were on the gangway when it tipped over injuring the plaintiffs. O’Brian told the chief officer that the gangway had tipped over because of the bow in it together with the weight of the longshoremen and ordered a safety line installed to prevent the gangway from tipping over again. A sign was posted limiting the use of the gangway to one person at a time. The district court found that the ship’s gangway was slightly bowed and that it tipped while plaintiffs were on it; that the vessel was unseaworthy by reason of the condition of the gangway; and that the plaintiffs were injured as a proximate result of the unseaworthiness. These findings are not attacked on appeal. With respect to the indemnity question the district court found: The stevedore’s superintendent saw the slight bow in the gangway even before he, his company’s boarding clerk, and the government boarding officials used it to both board and leave the vessel. The gangway appeared to him to be in good repair and safe because it was affixed at the top to the vessel, it rested evenly on the level concrete block, and its steps were even. In my view, there was an adequate basis for the superintendent’s conclusion, and his failure to take steps to secure the gangway with lines or to limit the number of persons using it at one time did not amount to a breach of the stevedore’s warranty of workmanlike performance. We are of the opinion that the district court improperly dismissed the action over against the stevedore. The legal principles to be applied in determining the question of liability for indemnity for the breach of the WWLP are now so well settled that we forego a discussion of them at length. It is enough to say that in the factual context of this case even though the vessel’s equipment is unseaworthy, “if the stevedore brings this condition into play, he is liable to indemnify the owner for any damages which may be sustained because of the breach of warranty.” Crumady v. “The Joachim Hendrik Fisser,” 1959, 358 U.S. 423, 79 S.Ct. 445, 3 L. Ed.2d 413. But the stevedore is chargeable only with knowledge of defects discernible by a reasonable, but cursory, inspection and is not responsible for latent defects. Vaccaro v. Alcoa Steamship Co., 2 Cir. 1968, 405 F.2d 1133. See Delaneuville v. Simonsen, 5 Cir. 1971, 437 F.2d 597. “There is a related rule that defects which are in fact observed cannot be overlooked. If the stevedore has knowledge of a defect it should correct it or require it to be corrected by the ship’s officers.” T. Smith & Son, Inc. v. Skibs A/S Hassel, 5 Cir. 1966, 362 F.2d 745. It is undisputed that the gangway was bowed almost midway from eight to twelve inches. It was not a latent defect but was observed by the stevedore superintendent who thought it was “slightly unusual.” He had never seen a bow in a gangway before. The stevedores, through the superintendent, “rendered a substandard performance which led to foreseeable liability” of the vessel. Their standard of performance has been succinctly defined —“to do the job properly and safely.” Ryan, swpra. This standard is not met when the stevedore’s superintendent is placed on notice that a gangway, which is to be used by longshoremen to board the vessel, is obviously bowed out of alignment in an unusual manner so that it would likely be unstable. Even the stevedores’ marine surveyor could do no better than opine that he could see nothing drastically wrong with the condition of the gangway and that it was not excessively dangerous. But drastic and excessive conditions are not the measure of performance under the WWLP. When both experts’ testimony is considered, with only a cursory glance at the photographs of the gangway, the conclusion is inescapable that the superintendent should have taken steps to properly discharge his duty to further inspect. The fact that the gangway is secured at the top to the vessel and is riding evenly on the ground surface does not indicate that it is safe and stable when it is obviously bowed in the middle. “In short, he must not assume that a safe condition exists when he has notice that such may not be the case; and his judgment is not vindicated by the fact that three men used the ladder without incident before the accident.” Smith v. Jugosalvenska Linijska Plovidea, 4 Cir. 1960, 278 F.2d 176, 181. It follows that the judgments dismissing the third party action on the merits must be reversed. We now turn to the cross-appeal of plaintiffs Lamar and Miller. They concede that Liberty Mutual Insurance Company, insurers of Shaw Company, is entitled to a lien for the full amounts expended by it for compensation and medical benefits under the Longshoremen’s Act, but they cross-appeal contending that the Florida Compensation Act, § 440.39 F.S.A., should be applied so that the insurance company will bear its equitable share of the legal fees and expenses of litigation. Alternatively, relying on Cleveland Chouest v. A & P Boat Rentals, 5 Cir. 1973, 472 F.2d 1026, the cross-appellants argue that since their attorney created the fund for the benefit of Liberty Mutual, and since its counsel contested, on behalf of the third party defendant, the damages sought by the cross-appellants, their attorney is entitled to reasonable fees to be paid out of the fund. We think neither position is sound. It is plain from the record that the payments for compensation and medical benefits were made to the cross-appellants under the Longshoremen’s Act. The Florida Workmen’s Compensation Act is wholly inapplicable. Thus, its provision for an equitable apportionment of legal fees and expenses is of no moment. Chouest is inapposite here for two reasons. First, Lamar and Miller stipulated that from their recoveries the medical and compensation payments received by them would be repaid to Liberty Mutual, free of any claim for attorneys’ fees. Second, Miller was awarded $3,021.65 for medical expenses, lost wages, and general damages with the proviso that Liberty Mutual had a lien of $1,640.65 to be deducted from the award. Lamar was awarded $15,272.60 for medical expenses, lost wages, and general damages, with the proviso that Liberty Mutual had a lien of $5,792.39 to be deducted from the award. Chouest does not stand for the broad proposition posited by cross-appellants. The reallocation principles it established “need be undertaken only in very limited circumstances”. 472 F.2d at 1037. Chouest was concerned with the proper allocation between longshoreman and employer-intervenor (compensation carrier) of the proceeds of the longshoreman’s recovery against a negligent shipowner, in a situation where the proceeds were insufficient to provide both full reimbursement for the employer’s compensation payments and the attorney’s fee of the longshoreman’s lawyer. 472 F.2d at 1030. In the instant case, the question of reallocation does not arise because it is clear “the amount of the recovery is sufficient both to reimburse, the intervenor and pay the plaintiff’s attorney.” 472 F.2d at 1037. The judgment of the district court dismissing the third party actions on the merits is reversed with directions to enter judgment for Admiral against Shaw. The judgment of the district court denying an allocation of plaintiffs’ attorneys’ fees between plaintiffs and Liberty Mutual is affirmed. Affirmed in part and reversed in part. . Warranty of Workmanlike Performance. Ryan Stevedoring Co. v. Pan Atlantic S. S. Corp., 1952, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133. The problems of indemnity and attorney fee allocations spawned by Rijan are now largely put to rest by the 1972 Amendments to the Longshoremen’s and Harbor Worker’s Compensation Act, 33 U.S.C.A. § 901 et seq.

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Eloy Pedro GARCIA, Plaintiff-Appellant, v. MURPHY PACIFIC MARINE SALVAGING COMPANY, Defendant-Appellee. No. 72-3516 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 9, 1973. Bruce C. Waltzer, George F. Riess, New Orleans, La., for plaintiff-appellant. L. J. Lautenschlaeger, Jr., New Orleans, La., for defendant-appellee. Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc., v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I. DYER, Circuit Judge. Garcia, a crew member of the M/V Cable, sued the owner, Murphy Pacific, for personal injury damages under the Jones Act, 46 U.S.C.A. § 688, and under the Doctrine of Seaworthiness of the general maritime law. The jury returned a verdict for Murphy Pacific. The district court denied Garcia’s motion for new trial and judgment N.O.V. We affirm. For about a week Garcia had been assisting Fuquay, another crew member, in splicing cable, an ordinary function aboard the vessel while it was in port. The splicing was accomplished by cleaning the ends of the cable with diesel oil and a brush to remove the protective grease coating. Some of the oil and grease necessarily fell to and accumulated on the steel deck. To prevent the crew members engaged in the splicing operation from slipping on the deck, canvas, burlap bags, and sawdust were spread over the area. At the time of the accident Fuquay was handling the Marlin spike and Garcia was pulling the strands of wire through the splice. Garcia’s feet suddenly slipped out from under him, and in turning to the right in order to catch himself with his hands and arms while falling, he experienced pain in his lower back. Garcia specifies two errors on appeal: the jury was manifestly in error in its failure to find that the Cable was unseaworthy and its crew negligent; and Garcia was denied his day in court,, as the result of the inattentiveness or dozing of one of the members of the jury. Garcia argues that the jury must not have understood the rather complex principles involved in a determination of liability under the general maritime law and under the Jones Act and that it was manifestly in error in incorrectly applying the legal principles involved. We disagree. A careful review of the record convinces us that the issues tried were properly submitted to the jury and that its findings should stand. There was evidence to show that oil was on the deck; that safety measures were taken by spreading burlap sacks, canvas, and sawdust on the decks; that the cleaning and splicing was a normal function when the vessel was in port; that diesel oil is customarily used in connection with the splicing; and that there was nothing unusual in the way in which the operation was conducted. There was also evidence with respect to the experience of Garcia in connection with the splicing operation and the supervision, or lack of it, of Garcia. In Lieberman v. Matson Navigation Company, 9 Cir. 1962, 300 F.2d 661, the court succinctly stated the principles here involved saying: While it is true that the requirement to furnish a seaman a seaworthy vessel is absolute, it is untrue that this duty is limitless. “The standard is not perfection, but reasonable fitness.” Mitchell v. Trawler Racer, Inc., 1960, 362 U.S. 539, 550, 80 S.Ct. 926, 933, 4 L.Ed.2d 941. The owner is not an insurer. Neterer v. United States, D.C.Md.1960, 183 F.Supp. 893. “In other words, a seaman is not absolutely entitled to a deck that is not slippery. He is absolutely entitled fo a deck that is not unreasonably slippery.” Colon v. Trinidad Corp., D.C.N.Y.1960, 188 F. Supp. 97 at 100. “The temporary presence of water upon the deck does not constitute unseaworthiness — to hold otherwise would make the shipowner an insurer.” Garrison v. United States, N.D.Cal.1954, 121 F.Supp. 617. Whether unseaworthiness or negligence are a proximate cause of the accident are questions of fact. Borgen v. Richfield Oil Corp., 9 Cir. 1958, 257 F.2d 505. The burden of proving either is on appellant. Selby v. United States, 2 Cir. 1959, 264 F.2d 632; Lipscomb v. Groves, 3 Cir. 1951, 187 F.2d 40. From the evidence presented, the jury could have found that the Cable’s owner had acted as a reasonably prudent person would have under the circumstances, hence there was no negligence; and that there was no unseaworthiness because the Cable was reasonably suited for its intended purpose and the work area was reasonably safe. On the other hand, the jury could have determined that there was negligence in the way the work was performed, or that because of the oil the area was unsafe and thus the vessel was unseaworthy. Under these circumstances we are not at liberty to redetermine facts found by the jury. Under the rule of Lavender v. Kurn, 1946, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916, whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. Finally, we are unpersuaded that Rogers v. United States, 5 Cir. 1972, 452 F.2d 1149, upon which Garcia heavily relies, dictates a different result. In Rogers the plaintiff was required to stand and work in oil and water in the bilge for several hours and subsequently slipped and was injured. Nothing had been done to avoid or minimize the danger of slipping, except an occasional unsuccessful attempt to pump the bilges. In the case sub judice, however, it was necessary to utilize diesel oil in the splicing operation with its consequent drippings but canvas, burlap, and sawdust were used for the very purpose of avoiding or minimizing the danger of slipping. While we might agree with Garcia’s contentions had the question of fact been left to us, we can no more redetermine facts found by the jury than the district court can predetermine them. “For the Seventh Amendment says that ‘no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.’ ” Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 1962, 369 U.S. 355, 359, 82 S.Ct. 780, 783, 7 L.Ed.2d 798, Aguirre v. Citizens Casualty Company of New York, 5 Cir. 1971, 441 F.2d 141, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58. By post trial motion for a new trial Garcia contended that he was denied his day in court because one of the jurors was allegedly inattentive or periodically dozing during the trial. The district court denied the motion and we think its ruling was proper. It appears that the juror was curled up in her chair from time to time and kept her eyes closed frequently during the trial. The trial judge noticed this but also noted that the juror gave evidence that she was listening. There was no evidence offered that the juror was in fact asleep or inattentive. Because the context in which alleged juror misconduct arises is different in every case, whether a new trial should be granted must be decided on an ad hoe basis. In this case we cannot say that the evidence supported a finding of juror misconduct. The judgment of the district court is Affirmed. . The trial judge found : I am not satisfied that (she) was ever asleep at any time during the trial. I am not satisfied in this case that the interest of justice would be served by my granting a new trial on the hypothesis that this juror was inattentive. . Xo objection was made by Garcia’s counsel during the trial and no affidavits were submitted by either Garcia or his counsel in support of the motion for new trial because they were unaware of the situation. Of course, a party, with knowledge of a juror’s misconduct, must make a timely objection and is not permitted to take his chances on a favorable verdict and if unfavorable get a second bite of the apple.

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UNITED STATES of America, Plaintiff-Appellee, v. Michael Anthony SINACOLA, Defendant-Appellant. No. 72-1760. United States Court of Appeals, Seventh Circuit. Argued Feb. 28, 1973. Decided April 3, 1973. Rehearing Denied April 24, 1973. Albert H. Beaver, Roger D. Klaus, Chicago, Ill., for defendant-appellant. James R. Thompson, U. S. Atty., William T. Huyck, Glynna W. Freeman, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee. Before SWYGERT, Chief Judge, and STEVENS and SPRECHER, Circuit Judges. SPRECHER, Circuit Judge. The main point argued in this appeal is whether a theft or embezzlement of interstate goods occurred prior or subsequent to the defendant’s surrender of his possession of the goods. Defendant Michael Anthony Sinacola was sentenced after a jury trial to six months in prison and two and one-half years probation for violation of 18 U.S. C. § 659. According to the testimony of Roy Thurman Wagner, the owner of a company which bought submersible sump pumps and sold them to contractors to install in homes, defendant, an employee of Associated Truck Lines, Incorporated, regularly delivered to Wagner’s company pumps which Wagner purchased from Piqua Machine & Mfg. Co., in Piqua, Ohio. On November 13, 1970, Wagner ordered what amounted to 239 cartons of pumps and 8 cartons of repair parts from Piqua with a total value of about $18,000 for delivery about November 23. On the latter date, defendant came to see Wagner and asked why he hadn’t delivered any pumps to Wagner lately. Wagner explained that the 247 cartons were presumably leaving Piqua that very day. Defendant then suggested “why don’t we see if we can get this one free.” When Wagner asked how, defendant replied that “we can get them at the truck dock, delivered to you with no freight bill . . . .” After more conversation, Wagner testified that “I finally agreed that he would steal the pumps at the dock and I would accept the pumps,” with the proceeds to be “split 50-50.” The 247 cartons of pumps were delivered by Piqua to the Chicago freight docks of Associated Truck Lines by means of an Associated truck trailer which arrived from Dayton, Ohio, on November 27, 1970. The trailer was unloaded and its contents distributed among several of Associated’s docks for ultimate delivery to the various consignees. The 247 cartons consigned to Wagner were delivered to dock 60, assigned to defendant, and loaded on trailer 622, also assigned to defendant. Defendant arrived at the Associated terminal before the normal starting time of 8:00 o’clock in the morning and at 8:20 he left the terminal with trailer 622. About 9:00 o’clock, defendant drove his truck'into the Wagner Company garage. Defendant told Wagner that “Santa Claus had come early and nobody had saw [sic] him and he didn’t have to take the freight bill.” The pumps were unloaded by Wagner and the defendant, during which time defendant said that he would be entitled to $9,000 and could he get $4,000 in cash right away. Wagner told him that he could only raise the cash by selling the pumps. The conversation at that time also emphasized that the scheme involved “no invoices” and defendant told Wagner that there would be no freight bills. The unloading was completed by 9:30 and defendant eventually returned to the Associated terminal, reaching there at 10:40 in the morning. Wagner then moved most of the pumps to a garage he had rented for the purpose across the alley from his home. At about 3:00 o’clock that afternoon, defendant telephoned Wagner and told him to call Associated and complain about not receiving the pumps, which Wagner proceeded to do on both November 30 and December 1. On December 4, an FBI agent visited Wagner and the pumps were subsequently recovered from Wagner by the FBI. Defendant’s primary contention is as follows: “Whether the defendant, Michael Sinacola, be viewed as an employee, agent or bailee, it is apparent that there was no unlawful possession or taking of his employer’s goods until that time when the co-defendant, Roy Wagner, took the first illegal act — notifying Associated Truck Lines that he had not received the pumps, and this act occurred after defendant, Michael Sinacola, had relinquished possession, thus making it impossible as a matter of law for him to be guilty of the offense of possession of stolen property.” Government Exhibit 2 is a copy of the “way-bill,” which was prepared in the regular and ordinary course of Associated’s business, as testified to by Associated’s Chicago manager. A copy of the way-bill is required to be signed by the consignee as a receipt acknowledging delivery to the consignee of the goods shown on the way-bill, in this case 247 cartons of power pumps and service parts. The crux and genius of defendant’s scheme in this case was to get the pumps out of Associated’s terminal without defendant taking the “freight bill” or “invoice” and without Wagner signing the way-bill when he received the merchandise. In United States v. Fusco, 398 F.2d 32 (7th Cir. 1968), Malone was a truck driver for Mobil Oil Corporation. In 1967, he was scheduled to deliver 8500 gallons of gasoline to a Hyde Park gasoline station. He delivered all but 470 gallons which he then delivered to Fusco’s station and sold to him for $40.00. Malone then cranked receipts from his truck’s automatic meter for 8500 gallons and turned them in to Mobil as evidencing delivery of 8500 gallons to Hyde Park. Both Fusco and Malone were charged with violations of 18 U.S.C. § 659. The conviction of Fusco was reversed by this Court on the ground that he was a receiver of stolen goods rather than a thief since the theft occurred at the Hyde Park station and not later at Fusco’s station. This Court said at 398 F. 2d 35: “In this case, Malone purposely left the delivery tickets in the meter after he acquired dominion over the 470 gallons of gas with a view to disposing of them later, thus evidence of his ‘intent to convert [these gallons] to his own use and of the completion of the crime’ at the Hyde Park station.” In the present case, defendant purposely left the way-bill at the Associated terminal (“Santa Claus had come early . and he didn’t have to take the freight bill”) after he acquired dominion over the 247 cartons of pumps with a view to disposing of them later through Wagner. In United States v. De Normand, 149 F.2d 622 (2d Cir.), cert. denied, 326 U. S. 756, 66 S.Ct. 89, 90 L.Ed. 454 (1945), the defendants were hijackers charged with violations of 18 U.S.C. § 409, the predecessor of § 659. The driver of one of the trucks involved parked it in the street when he went for coffee. When he returned the defendants took him back to his terminal at gunpoint and placed him bound and gagged in an empty truck. They then left the terminal and headed back toward the original parked truck but were arrested before they reached it. The truck remained sealed and none of its contents had been removed or even touched. The court rejected the contention that the statute had not been violated “because there was no asportation of the truck or any of its contents.” In affirming defendants’ convictions, Judge Swan said at page 624 that “[t]he unlawful ‘taking’ of constructive possession should serve to complete the offense Likewise in United States v. Padilla, 374 F.2d 782 (2d Cir. 1967), a helper on a truck was able to slip some merchandise out of a carton in his truck without breaking the sealed carton. He concealed two pairs of slacks removed from the carton in the front cab of the truck. His conviction under 18 U.S.C. § 659 was affirmed, the court saying at page 785: “Here Padilla actually reduced the slacks to his physical possession, exercised dominion over them with intent to convert them to his own use and hid them for later disposition.” In the present case, when defendant left the terminal without the way-bill he acquired constructive possession (as opposed to the custody he would have exercised as an honest employee) over the 247 cartons; he exercised dominion over them with intent to convert them to his own use; and he violated 18 U.S.C. § 659. United States v. Belcher, 448 F.2d 494 (7th Cir. 1971), is very similar to this case. Belcher was a truck driver for Hires Trucking Company. Claffy was a loader of freight for Acme Fast Freight. One day Claffy inadvertently loaded some merchandise on Belcher’s truck. When Claffy later inquired about the merchandise, Belcher told him that he had sold it. Thereafter, Claffy frequently threw items not intended for Hires Trucking Company or its consignees onto Belcher’s truck and Belcher paid Claffy from $20 to $100 for each such load. Through police surveillance, Claffy was observed loading unauthorized merchandise on Belcher’s truck and as he was about to drive away, Belcher was stopped and the police officers searched his truck. Belcher said, “How did this stuff get on my truck? That is not my freight. I don’t know how it got there.” A jury found Belcher guilty of violations of 18 U.S.C. § 659 for theft of merchandise for which he did not have freight bills. On appeal one of Belcher’s contentions was want of proof of asportation. This Court said in affirming his conviction, at 448 F.2d 499 : i “There was sufficient proof from which the jury could have concluded that defendant wilfully caused the acts to be done by Claffy. If Claffy were charged with the acts here in dispute, it is clear the asportation argument would be without merit.” The proposed new federal criminal code includes in the term “theft” embezzlement as well (Final Report, § 1731) and codifies the concept of theft as follows (§ 1732): “A person is guilty of theft if he: (a) knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another with intent to deprive the owner thereof; “(b) knowingly obtains the property of another by deception or by threat with intent to deprive the owner thereof, or intentionally deprives another of his property by deception or by threat; or “(c) knowingly receives, retains or disposes of property of another which has been stolen, with intent to deprive the owner thereof.” Under all of these authorities the theft or embezzlement occurred here when the defendant left the terminal without the necessary shipping documents and with the intent to steal the merchandise. This act was no different than if defendant or Wagner broke into the Associated terminal the night before and stole the Wagner goods, intending to charge Associated with their loss. Nor is it of any more consequence that defendant conceivably could have returned to retrieve the shipping documents than it would be for defendant or Wagner to break into the terminal on the succeeding night to return the goods. Furthermore, even if it could be assumed that the theft did not occur at the time of departure from the terminal, it most certainly occurred during the thirty to forty minutes that defendant and Wagner jointly unloaded the 247 cartons with intent to steal them by failure to receipt the way-bill. During that period the two of them had joint possession of the stolen goods. The district court properly instructed the jury in regard to defendant’s theory that if the theft in fact occurred when Wagner telephoned Associated on two succeeding days following the delivery by defendant, then defendant would not have had possession of stolen goods. The court instructed the jury as follows: “Whether the property was stolen is a question of fact to be determined by the jury from all of the evidence you have heard. “If you find from all of the evidence that the sump pumps involved here were not stolen until or after the time at which Roy Wagner received and accepted the pumps and later denied receiving them, then you cannot convict the defendant of the crime charged.” Defendant has also argued that some of the government’s exhibits were admitted without proper foundation and ■ that consequently the government failed to prove the interstate character of the shipment of the 247 cartons. § 659 provides in part: “To establish the interstate or foreign commerce character of any shipment in any prosecution under this section the waybill or other shipping document . . . shall be prima facie evidence of the place from which and to which such shipment was made.” Steve Generis, the Chicago manager of Associated Truck Lines, Incorporated, testified that Government Exhibit 2, the way-bill showing shipment of 247 cartons of sump pumps and service parts from Dayton, Ohio to Chicago, Illinois, was prepared and maintained by his company in the regular and ordinary course of its business. In addition, the testimony of several witnesses established the interstate character of the stolen merchandise. Under these circumstances we need not decide whether the foundation for the introduction of cumulative evidence of the interstate character of the goods, such as the sump pump manufacturer’s invoice and bill of lading (Government Exs. 1 and 3) was adequately laid by the testimony of the recipients of those documents (Wagner and Associated) instead of by a representative of the sump pump manufacturer. We have considered defendant’s other arguments and find them to be without merit. The judgment of conviction is affirmed. Affirmed. STEVENS, Circuit Judge (dissenting). Sinaeola had physical possession of the goods for a limited period on November 27, 1970. They were loaded on trailer 622 by other employees of the carrier; he hauled them to their assigned destination; and he completed their delivery by helping the consignee unload the trailer. Had he opened a carton, caused someone else to place loot on his trailer, acquired constructive possession of another truck by kidnapping its driver, or departed for an unauthorized delivery point, for the purpose of converting goods to his own use, a statutory theft would certainly have occurred. But the times when, and the places where, Sinacola had possession of the goods described in the indictment were without exception authorized by the shipper, the carrier, and the consignee. However evil his subjective intent, I am therefore persuaded that no theft occurred before the goods were delivered to the consignee. Conceivably the confusing evidence relating to the missing shipping documents would support the conclusion that Sinacola “stole” the goods when he drove away from the terminal. I assume conduct, plainly at odds with normal procedure, coupled with an intent to convert, might be a theft within § 659. As the case was argued and submitted, however, the jury was not required to find that any unauthorized overt act was performed by defendant before he completed his delivery of the goods to the consignee. In short, the conviction may rest on nothing more than authorized conduct accompanied by wrongful intent. In my opinion this is not enough. . The pertinent part reads: “Whoever has in his possession any such goods or chattels [which constitute an interstate shipment of property], knowing the same to have been embezzled or stolen . . . [s]hall in each case be fined not more than $5,000 or imprisoned not more than ton years or both [if the goods exceed $100 in value].” . The facts that Wagner already was or shortly would become the owner of the goods and that defendant was on his way to deliver the goods to AVagner is immaterial under the circumstances of this case. “Property in the hands of a bailee may be stolen by the general owner; as for instance, where it is taken with intent to charge the bailee with its value.” Mill, Criminal Law § 110 at 347 (1934). “A man may be guilty of a felony, in stealing his own goods from a pawnbroker, with whom he had pledged them, or from any one to whom he had entrusted them, with intent to charge said bailee their value.” Blackstone, Commentaries on the Law 848 (Gavit ed. 1941). . AVe are not confronted here with the problem of United States v. Fusco, 398 F. 2d 32 (7th Cir. 1968), where the theft occurred prior to the receipt of the goods by the ultimate recipient (such as Wagner here), thus making the ultimate recipient guilty as a receiver of stolen goods instead of as a thief. Here Wagner pleaded guilty to violations of 18 U.S.C. § 659, was placed on probation for two years and fined $3,000, and did not appeal. . This theory of the timing of the theft might have been more tenable than the terminal-departure theory had not the defendant been the mastermind of the whole scheme. . United States v. DeNormand, 149 F.2d 622, 624 (2d Cir. 1945) (“By that act they deprived the carrier of power to exercise control or dominion over the truck and acquired such power for themselves; thus, whatever possession the carrier or its employee had was transferred to them.”). . United States v. Padilla, 374 F.2d 782, 787-788 (2d Cir. 1967) (“[T]he evidence clearly showed that Padilla took physical possession of the slacks, exercised dominion over them to the exclusion of the owner. .. . ”). . United States v. Belcher, 448 F.2d 494, 499 (7th Cir. 1971) (“There was sufficient proof from which the jury could have concluded that defendant wilfully caused the acts to be done by Claffy.”). . United States v. Fusco, 398 F.2d 32 (7th Cir. 1968) (When the driver curtailed delivery of the full order at the Hyde Park station and left for Fusco’s place of business, he “took possession for his own purposes at the Hyde Park station.” Presumably the driver’s illegal intent existed from the moment he left the Hammond terminal, but the theft did not occur until he committed an overt act inconsistent with his authorized mission. I do not believe a driver’s possession can be both lawful and unlawful at the same time). . Helping to unload the trailer would seem to be within Sinacola’s authority to make delivery to the consignee. He had neither the right nor the duty to obtain a signed receipt until that was done. . The legal question of whether, and if so when, a theft occurred is unusually sophisticated because the consignee was both the owner of the goods and Sinacola’s co-conspirator. Sinacola never did anything to deprive the owner of his right to possession. Nevertheless, in collusion with the owner, Sinacola theoretically could steal the goods from Associated, which was both his employer and the owner’s carrier-bailee. While Sinacola had physical control of the goods, he either held lawful possession on behalf of the carrier or unlawful possession on behalf of his co-conspirator. I do not believe his possession could be both lawful and unlawful at the same time; in my opinion an overt act of “appropriation” inconsistent with his lawful status was required to consummate the theft. The instructions to the jury failed to define this critical factual issue. The jury was instructed as follows: “The Government must prove that these sump pumps had been stolen and unlawfully taken from an interstate shipment of freight. With regard to that, merchandise is considered stolen and unlawfully taken, if it has been appropriated from its lawful owner or possessor with the intent to deprive the owner or possessor of the rights and benefits of ownership or possession. * * * * * ■ “If you find from all of the evidence that the sump pumps involved here were not stolen until or after the time at which Roy Wagner received and accepted the pumps and later denied receiving them, then you cannot convict the defendant of the crime charged.” Tr. 9, 11. The defendant had requested a more careful instruction: “Knowing possession of stolen property is dependent upon defendant’s dominion and control over the stolen property, and this dominion and control, to amount to unlawful possession, must be such that it exceeds defendant’s lawful control and custody in the ordinary course of business.” Defendant’s Requested Instruction No. F. “If you find from all the evidence that the pumps were placed on a trailer driven by the defendant in the normal course of the business of Associated Truck Lines, and delivered to the consignee, Roy Wagner, in the normal course of the business of Associated Truck Lines, then you must find that the pumps were not stolen before or during the time in which the defendant is alleged to have had possession.” Defendant’s Requested Instruction No. J.

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UNITED STATES of America, Petitioner-Appellee, v. Danny Otha ARMSTRONG et al., Defendants, Michelle Sobel Perlman, Respondent-Appellant. No. 73-1488 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 6, 1973. Phillip D. Hardberger, San Antonio, Tex., Charles W. Tessmer, Ronald L. Goranson, Dallas, Tex., for respondent-appellant. William S. Sessions, U. S. Atty., James W. Kerr, Jr., Asst. U. S. Atty., San Antonio, Tex., for petitioner-appellee. Before WISDOM, AINSWORTH and CLARK, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, et al., 5 Cir. 1970, 431 F.2d 409, Part I. WISDOM, Circuit Judge: The appellant, Mrs. Michelle Sobel Perlman, was incarcerated after being held in civil contempt by a federal district court for refusal to answer questions before a grand jury under 28 U.S.C. § 1826. She appeals from the judgment of civil contempt. We remand the case for a further hearing. Brian Perlman, husband of Michelle Perlman, was indicted by the federal grand jury for the Del Rio Division of the Western District of Texas on June 6, 1972, together with several codefendants. The indictment charged Brian Perlman and his codefendants with a variety of narcotics violations under 21 U.S.C. §§ 841(a)(1), 846, 960(a)(1), and 963. The federal district court set trial for October 16, 1972. The government then severed the cases of Brian Perlman and one codefendant, and postponed their trial pending the extradition of another defendant from Canada. While Brian Perlman’s trial was pending, the government on February 13, 1973 obtained an order requiring Mrs. Michelle Perlman to testify before the grand jury in connection with an investigation of suspected violations of 21 U.S.C. §§ 841(a)(1), 846, 960(a)(1), and 963. The court subsequently entered an order granting Mrs. Perlman use immunity pursuant to 18 U.S.C. § 6003. Mrs. Perlman filed a motion to quash the appearance, invoking the marital privilege and asking to limit the testimony to matters not occurring in Mexico or Texas. The court held a hearing on February 20, 1973, to determine the extent to which the marital privilege would curtail Mrs. Perlman’s testimony. The government agreed that Mrs. Perlman could not be made to testify against her husband, but requested the court to order her to testify against the other defendants. The court then severed Brian Perlman’s case from the other defendants and ordered Mrs. Perlman to testify before the grand jury, with the limitation that she was not to testify to any matters concerning her husband. The court further ordered the grand jury not to divulge any of her testimony. Mrs. Perlman’s attorney informed the court that she would rely on the marital privilege as grounds to refuse to supply any information except her name, address, and date of her marriage. Mrs. Perlman was called before the grand jury later that same day. After her grand jury appearance the court held a hearing, where in response to the court’s questions Mrs. Perlman acknowledged that she had appeared before the grand jury and had refused to answer any questions. The court then held her in contempt, committed her to the custody of the marshal, and set bond at $150,000. The following day, February 21, the court held another hearing. Mrs. Perl-man again admitted that she had not answered any of the questions put to her before the grand jury. When the court inquired whether any of these questions related to the activities of her husband, she replied: “His name wasn’t mentioned, but I feel that it is connected.” After Mrs. Perlman and her attorney stated that she would continue to refuse to testify, the court held her in contempt and remanded her to custody without bail until such time as she should purge her contempt by testifying. Mrs. Perlman raises four points on this appeal. She contends that (1) the district court should have given her Miranda warnings before questioning her about her failure to testify; (2) the marital privilege prevents her from giving any testimony about the case, since her husband is a defendant; (3) the order granting use immunity was insufficient to protect her against possible prosecution by the governments of Texas and Mexico; (4) there was insufficient evidence to show that she was in contempt. There is no merit to Mrs. Perl-man’s first three points. Her reliance on Miranda is totally inapposite. We are not concerned here with a station-house interrogation. The trial court questioned Mrs. Perlman in open court, on the record, in the course of a judicial proceeding. Her attorney was present. Miranda warnings were not required here, just as they are not required when any other witness or defendant is questioned in open court. The marital privilege does not extend so far as to bar Mrs. Perlman from giving testimony about her husband’s codefendants which does not implicate her husband. The basic purpose of the rule that one spouse is incompetent to testify against the other spouse is to preserve family peace by preventing husband and wife- from becoming adversaries in a criminal proceeding. Hawkins v. United States, 1958, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125. Brian Perlman’s codefendants thus fall outside the scope of this rule. Mrs. Perlman could be called as a witness at their trials. See United States v. Fields, 3 Cir. 1972, 458 F.2d 1194; O’Brien v. United States, 8 Cir., 1924, 299 F. 568. Similarly, she cannot refuse to testify before the grand jury about their activities. Her husband capnot be harmed by her testimony, since síie is not to testify as to matters implicating him, and since his trial has been severed. 3 Wharton’s Criminal Evidence § 777, at 113-14 (12th ed. 1955). Mrs. Perlman’s testimony before the grand jury could not increase her risk of being prosecuted by another jurisdiction. The State of Texas would be barred from making use of any testimony obtained under a federal grant of immunity. Murphy v. Waterfront Commission, 1964, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678. Further, the secrecy of the grand jury proceedings is a sufficient safeguard against any danger of foreign prosecution. In re Tierney, 5 Cir. 1972, 465 F.2d 806. We agree, however, with Mrs. Perlman’s contention that there was insufficient evidence to support a finding of contempt. Mrs. Perlman’s admissions to the district court established only that she had refused to answer any of the questions put to her before the grand jury. There was no evidence before the district court to indicate that any of those questions related to matters about which Mrs. Perlman had been ordered to testify. Indeed, Mrs. Perlman expressed her opinion that the questions implicated her husband. The trial court apparently did not question the government attorney or any of the grand jurors, all of whom were present in court at the February 20 hearing, as to the nature of the questions asked Mrs. Perl-man. Nor was the transcript of the grand jury proceedings before the district court; the government has made this transcript available for the first time to this Court on appeal. Moreover, we cannot agree with the government’s suggestion that the statements of Mrs. Perlman and her attorney that she would refuse to answer any and all questions established contempt in violation of the statute, where there was no evidence that she actually refused to answer questions which did not implicate her husband. We express no opinion as to whether the transcript of the grand jury proceedings establishes that Mrs. Perlman was in contempt. The case is remanded to the district court for a hearing to reconsider the finding of contempt in light of the grand jury transcript and any other relevant testimony as to the events occurring before the grand jury. . The Court: Mrs. Sobel, did you appear before the grand jury. Mrs. Perlman : Yes, sir. The Court: Did you give testimony? Mrs. Perlman : No, sir. . The following interchange took place among the court, Mrs. Perlman and her attorney: The Court: Mrs. Perlman, did you appear before the grand jury yesterday? Mrs. Perlman : Yes, sir. The Court: And did the U. S. Attorney tell you that you were not to answer any questions about your husband or any of his activities? Were you given that warning? Mrs. Perlman: Yes, sir. The Court: And were you asked certain questions? Mrs. Perlman: Yes. The Court: Now, during the period of time that you were asked these questions, where was your lawyer? Mrs. Perlman: He was outside the room. The Court: In other words, he was available though for you to consult with? Did you ever feel the need to consult with him about any of the answers to the questions you were asked? Mrs. Perlman: I consulted with him twice. The Court: You went out of the room and consulted with him twice. All right. And did you refuse to answer all questions that you were asked by the grand jury? Mrs. Perlman : Yes, sir. The Court: Were any questions asked of you about the activities of your husband in connection with any part of this alleged grand jury indictment? Mrs. Perlman: His name wasn’t mentioned, but I feel that it is connected. The Court: All right, just tell us how you feel it was connected? Mr. Hardberger: I hate to interrupt, hut I think for her to adequately explain that answer to the Court would be a violation of the husband and wife— The Court: You are asking her not to answer, is that right? You are instructing her not to answer? Mr. Hardberger: Yes, Your Honor, but with respect to the Court, and I would like to explain to the Court why I’m saying that. Because if she— The Court: Are you advising her not to answer these questions that the grand jury propounded to her, after having given her use immunity and under the instructions that this Court has given her to answer? Mr. Hardberger: Yes, Your Honor, I am . The extent of this privilege in the federal courts is a matter of federal law. Fed. R. Crim.Pro. 26. Thus the two Texas cases relied on by Mrs. Perlman, Dobbs v. State, 1908, 54 Tex.Cr.R. 579, 113 S. W. 921, and Dungan v. State, 1898, 39 Tex.Cr.B. 115, 45 S.W. 19, are not controlling here. . The hearing need not comply with the full procedural requirements of Rule 42, Fed.R.Crim.Pro. Shillitani v. United States, 1966, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622; In re October 1969 Grand Jury, 7 Cir. 1970, 435 F.2d 350; In re Giancana, 7 Cir. 1965, 352 F.2d 921.

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Anthony FALLETTA, Plaintiff-Appellant-Appellee, v. COSTA ARMATORI, S.p.A. GENOA, Defendant and Third-Party Plaintiff-Appellant-Appellee, v. UNIVERSAL TERMINAL & STEVEDORING CORP., Third-Party Defendant-Appellant-Appellee. Nos. 597, 598 and 599, Dockets 72-1946, 72-2634 and 72-2035. United States Court of Appeals, Second Circuit. Argued March 22, 1973. Decided April 5, 1973. Edward D. Lory, Brooklyn, N. Y. (Paul A. Gritz, Brooklyn, N. Y., on the brief), for plaintiff-appellant-appellee. Michael D. Martocci, New York City (Yamada & Martocci, New York City, on the brief), for defendant and third party plaintiff-appellant-appellee. Albert S. Commette, New York City (Brown, Quencer & Commette, New York City, on the brief), for third party defendant-appellant-appellee. Before SMITH, FEINBERG and MANSFIELD, Circuit Judges. FEINBERG, Circuit Judge: We have here a familiar longshoreman-shipowner-stevedore legal battle ; what is somewhat unusual, however, is that all three parties appeal from the judgment of the trial court. After a non-jury trial in the United States District Court for the Southern District of New York, Judge Lawrence W. Pierce held, first, that defendant Costa Arma•tori S.p.A. Genoa, owner and operator of the vessel Paola Costa, was liable to plaintiff Anthony Falletta on theories of unseaworthiness and negligence; that plaintiff had been contributorily negligent to the extent of ten per cent in causing the accident, reducing his award to approximately $5,855; and finally, that as a result of plaintiff’s contributory negligence, his employer, Universal Terminal & Stevedoring Corp., was required to indemnify the shipowner. As indicated, none of the parties is happy with this result. Plaintiff-longshoreman was • injured while cargo was being unloaded from the ship. He was struck in the head just above the right eye by a free-swinging “burton boom lazy guy” — in Judge Pierce’s less esoteric term, a steel wire. The impact knocked plaintiff down and he injured his shoulder. Plaintiff was left with a scar over his eye and, as the judge found, “a permanent partial loss of use of the right arm.” On appeal, both plaintiff and his stevedore employer claim that the judge erred in holding plaintiff contributorily negligent. The stevedore has an even greater interest than plaintiff in establishing that proposition. The finding of contributory negligence cost plaintiff only $650 (reducing by ten per cent his damages of approximately $6,500). But in the shipowner’s action against the stevedore, based upon the latter’s breach of warranty of workmanlike service, plaintiff’s contributory negligence became the sole basis for holding his employer, the stevedore, liable for the full amount of plaintiff’s recovery ($5,855), as well as for such incidental items as counsel fees. By contrast, while not denying its own negligence, the shipowner claims that the finding that plaintiff was only ten per cent contributorily negligent was clearly erroneous. How much more would have been correct the shipowner does not squarely say, except to assert that plaintiff’s “own negligence substantially contributed to the cause of the accident.” The judge held plaintiff contributorily negligent because he was working in a dangerous place without paying sufficient attention to what was going on elsewhere on the deck. Plaintiff had been instructed by his hatch boss to remove certain hatch covers preparatory to unloading that hatch, and was in the process of doing so when the accident occurred. In addition, when plaintiff started his work, the ship’s crew had not yet started the unrigging operation that led to the accident. Therefore, up to that point plaintiff was not negligent; all appear to agree on that. But, according to the judge, when plaintiff observed the crew enter the area and begin to work as usual, i. e., to unrig, he knew or should have known of the danger to his safety and he was therefore under an obligation to stand clear of the danger zone. The difficulty with this theory is that a number of longshoremen were working on the hatch in full view of the ship’s crew when the latter began to disengage the jumbo boom and negligently unshackled the burton boom lazy guy. If plaintiff could see the deck crew some distance away, as the judge emphasized, they obviously could see him. The judge assumed as much and also concluded that the crew members “should have warned plaintiff prior to commencing the concededly potentially dangerous unrigging operation.” Under the circumstances here, plaintiff could not properly be regarded as negligent. As we noted under somewhat different circumstances in Sheehan v. Moore-McCormack Lines, Inc., 441 F.2d 360, 363 (2d Cir. 1971): . . the longshoremen had a right reasonably to assume that ... a warning would be given and they were under no obligation to anticipate that there would be a failure to fulfill that duty. Judge Pierce felt that Sheehan was distinguishable because in that case responsible officers of the ship were in the area supervising the activities of the crew and longshoremen, while plaintiff here could not “reasonably entrust his safety entirely to anyone in particular.” But on these facts we do not regard that distinction as an adequate reason for ignoring the principle of Sheehan. Plaintiff here could justifiably rely on non-negligent unrigging by the ship’s crew. Cf. International Terminal Operating Co. v. N. V. Nederl. Amerik Stoomv. Maats., 393 U. S. 74, 89 S.Ct. 53, 21 L.Ed.2d 58 (1968) (per curiam). The shipowner calls our attention to Cannady v. S. S. Carlin Fassio, 1966 A.M.C. 2434 (D.N.J.), aff’d per curiam, 358 F.2d 304 (3d Cir. 1966), but there the known, visible, overhead risk of harm to the plaintiff was much greater. We hold that the district court’s conclusion of contributory negligence, to which the “clearly erroneous” standard of appellate review does not apply, see J. Gerber & Co. v. S. S. Sabine Howaldt, 437 F.2d 580, 594 (2d Cir. 1971); Mamiye Bros. v. Barber Steamship Lines, Inc., 360 F.2d 774, 776-778 (2d Cir.), cert. denied, 385 U.S. 835, 87 S.Ct. 80, 17 L.Ed.2d 70 (1966), cannot stand on this record. The judgments for plaintiff against the shipowner and for the shipowner against the stevedore are reversed with instructions to enter a new judgment for plaintiff and a judgment for third-party defendant stevedore in accordance with this opinion. . This triangular controversy should soon be a thing of the past by virtue of the Longshoremen’s and Harbor Workers’ Compensation Act Amendments. P.L. 92-576, § 18, 86 Stat. 1251 (1972). The amendments increased workmen’s compensation benefits available to an injured longshoreman from his employer, elimnated a longshoreman’s recovery against the shipowner for unseaworthiness although continuing to allow it for negligence, and eliminated stevedore indemnity to the shipowner for such damages. See U.S.Code Cong. & Adm.News, pp. 4702, 4704-4705 (1972). . The stevedore also argues that the shipowner was not entitled to indemnity in any event because its crew was guilty of “conduct sufficient to preclude recovery” relying, e. g., on Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U.S. 563, 567, 78 S.Ct. 438, 2 L.Ed.2d 491 (1958), and Bertino v. Polish Ocean Line, 402 F.2d 863, 866 (2d Cir. 1966). . On this view of the case, it is unnecessary to deal with the stevedore’s remaining argument. See note 2 supra.

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UNITED STATES of America, Plaintiff-Appellee, v. Jordan M. SCHER, Defendant-Appellant. No. 72-1321. United States Court of Appeals, Seventh Circuit. Argued Nov. 1, 1972. Decided March 30, 1973. Rehearing Denied April 26, 1972. George D. Crowley, Warren R. Fuller, Richard L. Manning, Chicago, Ill., for defendant-appellant. James R. Thompson, U. S. Atty., William T. Huyck, Glynna W. Freeman, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee. Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and PELL, Circuit Judge. PELL, Circuit Judge. Defendant Jordan M. Seher, M.D., a psychiatrist practicing in Chicago, was charged in a three-count indictment with willfully and knowingly attempting to defeat and evade payment of a portion of his federal income taxes due for 1964, 1965, and 1966, in violation of 26 U.S.C. § 7201. After a bench trial, Dr. Scher was found guilty on all counts and received a sentence of three years’ probation, the first 90 days to be served in a jail-type institution. Scher concedes that there were understatements in each of the indictment years resulting from the cashing of patients’ fee checks. The sole issue on this appeal is whether the evidence was sufficient to establish that the defendant had the requisite criminal intent. As an appellate court, we cannot, of course, decide anew the defendant’s guilt or innocence. See Kotteakos v. United States, 328 U.S. 750, 763, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Rather, our task in this case is to determine if a rational trier of fact could have found beyond a reasonable doubt that Dr. Scher violated 26 U.S.C. § 7201. In so doing, we must view the evidence and all reasonable inferences therefrom in the light most favorable to the Government. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). I Scher’s certified public accountant for the years in question, Frank Baker, relied on the doctor’s bank deposits to compute the gross income from his medical practice. During those years, Scher had only one checking account. From the defendant’s office files or from his employees, Baker obtained the monthly bank statements. He then totalled the deposits made during the calendar year. Next he deducted certain items, such as patients’ returned (NSF) checks, from the annual deposits total. Because Dr. Scher was paid primarily by check, if these checks were not cashed but were deposited in the bank account, that account over a year’s time would reflect the defendant’s gross income from his medical practice for that year. Beginning in 1963, however, Dr. Scher, or one of his employees at his direction, cashed some of the incoming checks at two currency exchanges near the doctor’s office. According to deposits journals that the defendant’s staff maintained, checks were cashed at least sixteen times during the three-year period covered by the indictment. Each transaction involved from one to twenty-one checks and from $1024.80 to $4019.72. Dr. Scher personally endorsed the checks to be cashed. After each transaction, the proceeds were given to the defendant, who placed them in a private safe in his office. The accounting method adopted by Baker differed from that used by his predecessor, Erwin Waxier, who had prepared Dr. Scher’s returns for the calendar years 1960 through 1962. In addition to reviewing the defendant’s bank statements and cancelled checks, Waxier analyzed a receipts journal containing the names of the patients billed, the amounts received, and the dates of receipt and a disbursements journal, both of which were kept in Scher’s office. Waxier would then compare the total amount of the receipts as recorded in the receipts journal, which, inter alia, listed all checks received, whether deposited or cashed, with the total amount of the deposits indicated on the bank statements. For the years that Waxier prepared the returns, the total bank deposits agreed with the total entries in the receipts journals. However, during these years, Scher was depositing in his bank account substantially all the patient fee checks he received. At trial, Baker stated that he had never discussed with Scher the method by which he computed Scher’s income. Exclusive reliance on the “bank deposits method” of determining income supposedly had been his own idea. Waxier also testified that when he had worked for Scher he had not explained to him how he calculated the income. Scher contends that this and other testimony disproves the validity of the trial judge’s finding of willfulness. The maintenance of accurate records by Scher’s employees and the defendant’s openness in cashing the checks allegedly were inconsistent with a willful intent to evade taxes. Apparently Scher attributes the understatement of his income in 1964, 1965, and 1966 to poor communication between Baker and himself and to the accountant’s “sloppiness” or incompetence. Defendant relies on United States v. Pechenik, 236 F.2d 844 (3d Cir. 1956), in which the Third Circuit overturned the conviction of a corporation president for willful evasion because the record failed to reveal probative evidence linking the defendant with the corporation’s erroneous accounts books and tax returns. Although both Pechenik and the present case involve charges of individual criminal liability for tax evasion, there could well be underlying differences between the situation of a corporation officer who perforce must depend upon bookkeepers, auditors, and accountants for the preparation of books relating to financial matters not under his personal dominion and the situation of a person dealing with his own individual income all of which was derived from personal services rendered by him. II We first note that “a taxpayer cannot shift the responsibility for admitted deficiencies to the accountants who prepared his returns if the taxpayer withholds vital information from his accountants, or takes positive áction designed to mislead them.” Bender v. Commissioner of Internal Revenue, 256 F.2d 771, 774 (7th Cir. 1958). That Scher did not conceal his check cashing from his employees does not foreclose the conclusion that he was consciously reticent about telling his accountant about the practice. Baker, unlike his predecessor, visited Scher’s office only a day or two each year, in February or March. Second, because the parties stipulated to many of the facts, the credibility of the witnesses, especially Baker and Scher, is important here. We must rely heavily on the evaluation of the trier of fact as to the credibility of the witnesses. The district court judge obviously found Baker a less than credible witness. Baker himself conceded that he simply could not remember “each and every conversation since I have been engaged with [the doctor] over nine years ago.” Further, even the “cold” record suggests that the accountant had been evasive, irritable, and somewhat inconsistent at trial. The judge also found Dr. Scher to be an unpersuasive witness. The defendant correctly points out that a finding of guilty cannot be predicated solely upon disbelief of witnesses’ testimony. See United States v. Pechenik, supra. However, we do not therefore conclude that such disbelief is irrelevant to our review. Cf. Judge Learned Hand’s statement that “the carriage, behavior, bearing, manner and appearance of a witness — in short, his ‘demeanor’ — is a part of the evidence. . . . [W]e have again and again declared, and have rested our affirmance of findings of fact of a judge, or of a jury, on the hypothesis that this part of the evidence may have turned the scale. Moreover, such evidence may satisfy the tribunal, not only that the witness’ testimony is not true, but that the truth is the opposite of his story . . . .” Dyer v. MacDougall, 201 F.2d 265, 268-269 (2d Cir. 1952) (footnote omitted). We also disagree that the trial judge relied on no positive evidence. “It is clear that the Government need, not adduce direct proof of intent. It may be inferred from the defendant’s acts. . The same applies to knowledge that additional amounts were due, and a jury may return a verdict of guilt under this section, [26] U.S.C. § 7201, based upon circumstantial evidence alone.” United States v. Spinelli, 443 F.2d 2, 3 (9th Cir. 1971). See also W. La Fave & A. Scott, Handbook on Criminal Law §28, esp. at 203 (1972). Baker testified at trial that he had had no discussion with the defendant as to what books and records Scher kept. Yet Baker stated that, during the years in question, he had examined the disbursements journals, and he admitted that he had known of the existence of books listing checks received, although he claimed he had never seen them, had made no inquiries about them, and had not known who in the office maintained them. Waxier regularly had requested from defendant’s employees — and had removed from Scher’s office for study —both the receipts journals and the disbursements journals. One reason Baker gave'for his failure to consult the journals was his wish to avoid disturbing the defendant’s confidential relationship with his patients by knowing their names. Although he denied at trial that Scher had ever cautioned him about doctor-patient confidentiality, he had earlier testified before the grand jury that he had discussed that topic with Scher and that Scher had not wanted him to have that information. In his trial testimony, the defendant denied that he had told Baker not to look at any documents that had patients’ names on them. Dr. Scher knew that all his receipts had been entered in office books. Indeed, his staff gave him the volumes when completed. Although he testified that he had never instructed his employees not to give the records to his accountant, when Baker failed to ask him for records, he did not offer him the receipts journals (or even the deposits journals) or order an employee to show them to Baker. Furthermore, he never mentioned to Baker that he or others at his direction had cashed thousands of dollars worth of checks. This information not having been communicated and the accountant having failed to examine the books initially on his own, his knowledge of the true status of his client’s income never departed from its Cimmerian refuge, a situation susceptible of easy and quick remedying by the imparting of the withheld information. Baker testified that each year he spent a day or two in the defendant’s office gathering data for the tax returns and that he had brief discussions with Scher two or three times on each of those days. On the worksheets Baker developed for 1965 and 1966, the gross income figure had been listed “per deposits.” The accountant declared, however, that he had not shown Scher these worksheets. Instead, Baker would ask the defendant about particular items and would tell him the gross figures he had calculated. From the defendant’s records, the Government determined that in 1964 checks totalling approximately $16,500 had been cashed, that in 1965, the sum had been about $12,300, and that in 1966 the total had been $8400. Thus, there was a substantial discrepancy between the gross income that Baker quoted to the defendant and the total fees Scher had actually received. Although the defendant had not kept his own personal account of the check cashing totals, he testified that, at least as to 1964, he had known thqt he had cashed thousands of dollars worth of checks. The trial judge obviously considered Scher’s failure to notice and comment on these discrepancies a circumstance suggesting that the defendant had been less than open with his accountant. Scher apparently also gave Baker no positive information in response to Baker’s asking if he knew of “any other items which would probably be recorded in the income tax return.” In 1966, a revenue agent interviewed Scher and Baker regarding Scher’s 1964 return. He inquired whether “receipts [were] received entirely by check and [were] deposited in total in one checking account by taxpayer’s secretary.” The record is unclear as to who answered the query, Baker or the defendant, but an affirmative answer was given and both were present. In 1968, a special agent of the IRS interviewed the defendant and his accountant. He read aloud part of the audit report made by the revenue agent in 1966, including the statement: “Receipts are received almost entirely by check and deposit [ed] in total into one checking account by the taxpayer’s secretary.” [Emphasis added.] The special agent then asked Scher “had that same practice followed in 1963 as well as 1964?” and the defendant stated it had. The agent then explained that the Government had learned that some checks from patients had been negotiated at a currency exchange and that the agent wished to determine whether they had been reported as income. Once Scher understood that the agent was speaking about checks cashed in 1964, he accused his former wife of forging endorsements on patients’ checks and of cashing them in 1963 and 1964. He did not mention the checks that he had had cashed, which, as indicated, represented a substantial amount of money. Further, Scher specifically denied cashing any checks in 1963 or 1964 at a certain currency exchange, which exchange, the trial evidence showed, had been used for Scher’s check cashing activities. At trial, Scher could remember, little of this conversation he had had with the special agent in 1968. It is to be noted that this damaging testimony as to Seher’s proclivity for “covering-up” was not put in for impeachment purposes. Scher had not yet testified, and the misstatements had their own independent probative value. Dr. Scher denied at trial that his cashing of the checks at the currency exchanges and placing the proceeds in a private safe was for the purpose of evading his tax obligations. He explained his hoarding of thousands of dollars by detailing personal and professional problems he had had at the time. The money allegedly gave him a sense of security. He also claimed that, in addition to his other problems, he had had financial difficulties. Accountant Waxier, he thought, had left his employ because he had been too slow in paying him his fees. According to the defendant, the cash hoard remained unused until 1968, when he invested some of it in stocks. From the above evidence, the trier of fact could reasonably have inferred that Dr. Scher was deliberately withholding necessary information from his accountant and that he was attempting to use the resulting inadequate communications with Baker to his advantage. From the circumstances presented, some of which by themselves seemed innocent, the judge was justified in finding a damning pattern. The Government’s case satisfied the requirement of Spies v. United States, 317 U.S. 492, 499, 63 S.Ct. 364, 368, 87 L.Ed. 418 (1943), that a “willful and positive attempt to evade tax” means more than a “[w]illful but passive neglect of the statutory duty.” Defendant admitted that he was experiencing financial problems. The employment of an accountant using a different method of computing income from that followed by his predecessor was indeed fortuitous for Dr. Scher, who had begun to cash cheeks in substantial amounts. The district judge could reasonably have found it highly questionable that Baker, a CPA with over thirty years’ experience, would, without any knowledge of his new client’s practices, adopt the “bank deposits method” of calculating that client’s income. But the ultimate responsibility returns to Scher’s concealment. The inconsistencies in Baker’s testimony and the knowledge he displayed of Seher’s procedures, e. g., that the defendant was paid primarily by check, support the inference that Baker had been led to believe that the method he adopted accurately reflected Dr. Scher’s gross income. The trial judge also properly noted that the defendant was not completely isolated from the preparation of his income tax returns. Baker did discuss tax matters with him each year. It was within the province of the trier of fact to disbelieve that these discussions concerned deductions and expenses only and that the defendant could have failed to be aware of the great discrepancies between the amount of fees he actually received in a year and the gross income figure that his accountant cited to him. Finally, the defendant's evasiveness and misstatements when interviewed by the special agent of the IRS in 1968 strongly suggest conscious wrongdoing. And, as the trier of fact commented, the defendant’s explanation of why he cashed the checks rather than depositing them in a bank — where he could have earned interest, which, presumably, would have enhanced the sense of security large sums gave him — and his ultimate use of his tax-free hoard bolster the inference that defendant was willfully attempting to evade his income taxes. Although it is true, as we noted in footnote 1 of this opinion, that there were errors in the questioned income tax returns which redounded to Scher’s favor, this is a matter of argument only, and we cannot say that it is sufficient to do away with the willful intent to evade as found by the trier of fact. Having considered the totality of the circumstances and the inferences that one could reasonably draw from them, we hold that the evidence was sufficient to suppbrt the district court’s verdict. Accordingly, the judgment of conviction is affirmed. Affirmed. . The indictment alleged that Dr. Scher had underpaid $1,949.57 in income taxes in 1964, $3,800.52 in 1965, and $2,719.45 in 1966. Taxable Income Tax Due Indictment Indictment Year Per Return Per Return Taxable Income Tax Due 1964 $ 9,031.45 $1,925.06 $14,546.73 $3,874.63 1965 8,317.39 1,682.43 18,776.42 5,482.95 1966 11,206.64 2,576.13 18,279.06 5,295.58 These figures do not reflect the total amount of gross income not reported as the returns also failed to include some allowable deductions and there was some double reporting of income. Our inquiry is directed to the matter of willful intent as to the omission of income, although, of course, we do not ignore in deciding this ease the fact that not all of the taxpayer’s derelictions were in his own favor. . 26 U.S.C. § 7201 (1971) reads: “Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution.”

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UNITED STATES of America, Plaintiff-Appellee, v. Sam De STEFANO and Edward Speice, Defendants-Appellants. Nos. 72-1407, 72-1408. United States Court of Appeals, Seventh Circuit. Argued Dec. 4, 1972. Decided Feb. 12, 1973. Amended Order April 20, 1973. James B. Martin, Peter W. Boznos, Melvin B. Lewis, Chicago, Ill., for def endants-appellants. James R. Thompson, U. S. Atty., Gordon B. Nash, Jr., William T. Huyck, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee. Before CASTLE, Senior Circuit Judge, and FAIRCHILD and CUMMINGS, Circuit Judges. CASTLE, Senior Circuit Judge. Appellants Sam De Stefano and Edward Speice were convicted by a jury verdict rendered on March 16, 1972 of endeavoring to induce a prospective witness not to testify in a pending federal case, in violation of 18 U.S.C. § 1503 (1970). On this appeal, defendants have raised many objections to the propriety of the proceedings in the district court. Their major objections are that: 1) the indictment was insufficient to charge a violation of 18 U.S.C. § 1503, 2) the district judge deprived the defendants of their constitutional rights to confront witnesses against them and to due process of law by his refusal to subpoena the witness whom the defendants allegedly threatened, and 3) the district judge erred in giving what the defendants characterize as an “expanded AUenBrown ‘dynamite charge’.” Our consideration of these and other arguments raised by both defendants convinces us that the conviction of appellant De Stefano should be affirmed, and the conviction of appellant Speice should be reversed and remanded for a new trial. The trial of the defendants commenced on March 9, 1972. The first government witness was James P. Braseth, a group supervisor of the Federal Bureau of Narcotics and Dangerous Drugs. Mr. Braseth testified that on February 22, 1972 he had one Charles Crimaldi in his protective custody and was escorting him into the Dirksen Federal Building in Chicago to testify in the trial of Anthony Esposito, who was charged with illegally transferring cocaine to Crimaldi. Braseth testified that he and Crimaldi entered an elevator in the federal building and punched the control button thereon for the 18th floor. The elevator proceeded to the second floor, where its doors opened. Just as the doors were about to close, defendant Speice stuck his arm between them, causing them to reopen automatically. After glancing inside the elevator, Speice called to someone who was apparently in the corridor: “Hurry up. Look who’s here.” Then defendant De Stefano appeared, and both he and Speice entered the elevator together with two men whom Braseth did not recognize. De Stefano stood directly in front of and face to face with Crimaldi, and Speice stood within two feet of De Stefano, also facing Crimaldi. Looking at Crimaldi, De Stefano said to him: “My eyes are dimming, but I think I know you. My memory is fading, too. It must be old age.” Then, coming closer to Crimaldi, pointing his finger and gritting his teeth, De Stefano declared in a loud, angry voice: “I understand your eyes are failing — are dimming, and your memory fading permanently this week.” Braseth observed spittle on De Stefano’s mouth as he voiced these words, and noticed that De Stefano emphasized the words “your” and “permanently” by raising his voice and smashing his fist into his hand. At that point defendant Speice looked at Crimaldi and stated: “Have you done any fishing lately?” Crimaldi made no response to the remarks of either defendant, but with his face flushed, he trembled as he listened. Braseth also testified that from his knowledge, acquired while posing as an undercover agent, the phrase “Have you done any fishing lately?” was a means of intimating that the person addressed would shortly end up as fish bait, his body cut up into small pieces and dumped into a convenient body of water. Defendant Speice testified that he went to the federal building on February 22, 1972 at the request of De Stefano, who needed a drived' to take him to confer with people who were involved in trials there. Speice and De Stefano then went to the second floor cafeteria, where De Stefano, in mistakenly thinking that a patron there was someone he knew, apologized with a statement that he supposedly made quite regularly: “My eyes are dimming and my memory is fading.” After leaving the cafeteria, Speice approached the closing doors of the elevator and caused them to reopen. Saying nothing, he and De Stefano entered. At this point he saw Charles Crimaldi, whom he hadn’t seen for years and who now “looked like he was about to die” because he was shaking and had a flushed face. Looking at Crimaldi, De Stefano made his “usual statement”: “Evidently you must know me. My eyes are dimming . . . .” Speice did not recall hearing De Stefano predict that Crimaldi’s memory or eyes would fade. Realizing the tension in the elevator and thinking that Agent Braseth was going for his gun, Speice then tried to calm the atmosphere by innocently asking Michael Polesti, who had also gotten on the elevator on the second floor: “Have you done any fishing lately?” Speice also testified that Braseth and Crimaldi got off at the 18th floor, and that after he and De Stefano got off on the 21st floor, De Stefano asked him whether he had seen the “nut” on the elevator and speculated that that person must have jumped one of De Stefano’s bonds or owed him money. When Speice told him that the nervous person was actually Chuck Crimaldi, De Stefano did not believe him at first, but then decided to go back to the 18th floor and to attempt to talk to Crimaldi. They were unsuccessful in this attempt. Appellant De Stefano did not testify under oath. I. Sufficiency of the Indictment The grand jury returned the following indictment against the defendants: That on or about February 22, 1972, at Chicago, Illinois, in the Northern District of Illinois, Eastern Division, Sam De Stefano and Edward Speice, defendants herein, did knowingly, willfully and corruptly endeavor to influence, obstruct, and impede the due administration of justice in that on or about the date aforesaid the defendants did corruptly and by threat of force endeavor to induce a prospective witness, Charles Crimaldi, not to testify in the case of United States of America vs. Anthony Esposito, 71 CR 980, which was set for trial on that date in the United States District Court, Northern District of Illinois, Eastern Division; In violation of Title 18, United States Code, Section 1503. Defendant De Stefano seeks to invoke the holding of Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L. Ed. 419 (1893), to prove that this indictment fails to state a violation of 18 U.S.C. § 1503. That eighty-year-old decision stated that, in order to allege the crime of intimidating a witness, the indictment must charge that the defendant a) knew that the person he threatened was a witness and b) had knowledge or notice that the witness was to testify in a proceeding pending in a federal court. We find that the indictment returned by the grand jury against the defendants was sufficient. The allegations contained therein are certainly more detailed than those of the indictment returned against the defendant in Pettibone. The indictment charges that the defendants acted “knowingly” in violation of 18 U.S.C. § 1503; this allegation of knowledge encompasses the required mens rea for the crime. See United States v. Zolli, 51 F.R.D. 522, 526 (E.D.N.Y.1970). It also sets out “facts that show knowledge or notice,” United States v. Pettibone, 148 U.S. at 206, 13 S.Ct. at 546, that Crimaldi was a witness in a pending proceeding. Anderson v. United States, 215 F.2d 84, 89 (6th Cir.), cert. denied, 348 U.S. 888, 75 S.Ct. 208, 99 L.Ed. 698 (1954). It is also doubtful whether the common law devotion to legal formalities which fathered the Pettibone decision should govern us today. The Supreme Court has clearly stated that the “old common law rules of criminal pleading” have yielded to the modern practice of disregarding formal defects in indictments. Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861 (1932). Instead, the important function of a present-day indictment is to apprise the defendant of the nature of the offense with which he is charged, and to make an adequate record so that the defendant can plead any conviction or acquittal resulting from the indictment as a bar to future prosecutions. United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92 (1953), Hagner v. United States, supra, United States v. Henderson, 471 F.2d 204 at 205 (7th Cir. 1972); Fed.R.Crim.P. 7(c). In accord with this contemporary view of pleading, decisions dealing with 18 U.S. C. § 1503 have held that an indictment worded merely in the language of that statute is sufficient, United States v. Bell, 351 F.2d 868, 874 (6th Cir. 1965), cert. denied, 383 U.S. 947, 86 S.Ct. 1200, 16 L.Ed.2d 210 (1966), Holland v. United States, 245 F.2d 341, 342 (5th Cir. 1957), even though the indictment contains no express allegations that the defendant knew that the person he threatened was a potential witness in a pending criminal proceeding. Seawright v. United States, 224 F.2d 482, 483 (6th Cir.), cert. denied, 350 U.S. 838, 76 S.Ct. 76, 100 L.Ed. 748 (1955), Parsons v. United States, 189 F.2d 252, 253 (5th Cir. 1951), United States v. Zolli, 51 F. R.D. 522 (E.D.N.Y.1970). Defendant has suggested no reasons to depart from the holdings of these decisions. Nor has he provided any persuasive reasons why this court should add to the necessary elements for charging a violation of 18 U.S.C. § 1503 by requiring that the indictment state the words of threat and the persons to whom the threats were uttered. Defendant De Stefano’s reliance upon cases involving threats to the life of the President of the United States and refusal to answer questions posed by the House Un-American Activities Committee involve different statutes, factual situations and first amendment policy considerations which make their holdings inapposite to the instant case. II. Failure of the District Court to Subpoena Crimaldi as a Witness The defendants argue on appeal that the district court erred in refusing to order Charles Crimaldi to testify at their trial, either as a court or defense witness. They contend that Crimaldi’s testimony would throw light on such questions as what occurred in the elevator on February 22, 1972, and what the words “Done any fishing lately?” actually mean in both common and underworld parlance. The record reveals that when Speice and De Stefano learned that the government did not plan to produce Charles Crimaldi to testify about the threats made to him in the elevator, they sought to have him subpoenaed as a court or defense witness. At first, government agents intimated that they did not know where Crimaldi was; later they admitted knowing his whereabouts, but reported that Crimaldi had insisted that he could not testify against his former juice-racket employer De Stefano because of his deathly fear that De Stefano would cause him harm. The agents did, however, arrange for Speice’s attorney to talk to Crimaldi by telephone. The person at the other end of the line who identified himself as Crimaldi stated that he was afraid of coming to Chicago to testify because he did not believe that the government could protect him. If the government could not prevent John and Robert Kennedy from being killed, he reasoned, it could not ensure his safety either. At the outset, we note that the question of whether a witness can or must be produced to testify at trial implicates two constitutional considerations. The first allows a defendant to secure the appearance of certain witnesses that can provide relevant and helpful evidence for his defense; it is based both on the sixth amendment right of the accused “to'have compulsory process for obtaining witnesses in his favor” and on the “fundamental requirement of fairness” for criminal trials inherent in the due process clause of the fifth amendment. Roviaro v. United States, 353 U.S. 53, 60, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The second constitutional consideration precludes the use of testimony against a defendant without affording him the opportunity to cross-examine the person testifying, when the evidence adds substantial and even critical weight to the case against the accused; this safeguard is based upon the sixth amendment right of confrontation. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Both these considerations are involved in the instant case: the first is implicated in the case against De Stefano, the second in the ease against Speice. a) Right to Secure Witnesses. Defendant De Stefano argues that his right to compulsory process meant that Crimaldi’s fears of retaliation could not excuse his refusal to appear, the government’s failure to disclose his wherea-. bouts during trial, or the district court’s denial of all motions to subpoena him. He submits that the right to demand the production of witnesses is vested in a defendant without qualification. As both sides admit, there are few, if any, cases bearing on the question of whether the government must produce a witness who refuses to testify because he is allegedly fearing for his life. The proper resolution of this issue, we believe, is to consider first whether the government was constitutionally required to produce Crimaldi; only then is it necessary to decide whether Crimaldi’s expressions of fear relieved the government of this obligation. A court violates an accused person’s rights to compulsory process and to fundamental fairness at his trial when it denies him the ability “to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.” Washington v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019 (1967), Roviaro v. United States, 353 U.S. at 63-64, 77 S.Ct. 623. United States v. Seeger, 180 F.Supp. 467, 468 (S.D.N.Y.1960). Unless the witness denied to the defendant could have produced relevant and material testimony for his defense, there is no constitutional violation. Although there is some controversy as to the allocation and substance of the burden of proof for showing the materiality of a witness’ testimony (see, e. g., the majority and dissenting opinions in United States v. Skeens, 145 U.S.App.D.C. 404, 449 F.2d 1066 (1971)), the record in the instant case contains no factual indication that Crimaldi’s testimony would help defendant De Stefano. The record reveals only the sworn testimony of Agent Braseth that he had repeatedly tried to convince Crimaldi to testify, but that Crimaldi had continually refused. Defendant De Stefano has raised only intriguing speculations as to what Crimaldi might testify to. He suggests that Crimaldi might testify that he was not physically displaying fear in the elevator; but such testimony is quite unlikely, since both defendant Speice and De Stefano himself (although not under oath) testified that Crimaldi appeared frightened. He also suggests that Crimaldi might testify that it was De Stefano’s mere presence —and not his words — that caused Crimaldi’s fearful reactions; but this testimony, if given, would not negate the government’s case, for it is not necessary to prove that a witness was actually intimidated by the threats, but only that the threats had a reasonable tendency to intimidate. United States v. Carzoli, 447 F.2d 774 (7th Cir. 1971), cert. denied, 404 U.S. 1015, 92 S.Ct. 673, 30 L.Ed.2d 662 (1972). See also Knight v. United States, 310 F.2d 305, 307 (5th Cir. 1962). Nor did the particular circumstances of this case make Crimaldi’s testimony material. Several cases have suggested that when an informer is the only witness to a transaction other than the accused or the police, the informer’s testimony automatically becomes material and vital to the accused’s defense so that the government must reveal his identity. Roviaro v. United States, 353 U.S. 53, 63-64, 77 S.Ct. 623 (1957), United States v. Barnett, 418 F.2d 309, 311 (6th Cir. 1969). Here, however, witness Crimaldi was not the only one who could controvert, explain, or amplify the testimony of Agent Braseth. Defendant Speice took the stand to testify to his version of the elevator incident; defendant De Stefano, acting as his own counsel, was able to bring in his version by his questions during trial; and both defendants had the option of calling Michael Polesti, a friend of theirs who got on the elevator at the second floor, as a witness. Since there is no indication that Crimaldi would provide material and relevant evidence for defendant De Stefano, we find that the failure of the district court to subpoena Crimaldi did not violate De Stefano’s right to compulsory process for witnesses in his favor. b) Right of Confrontation. Defendant Speice argues on appeal that he was denied his right to confront and cross-examine the witnesses against him when Agent Braseth testified concerning the sinister meaning Crimaldi gave to the inquiry, “Done any fishing lately?”. We find that the failure of the district court to sustain objections to the indirect testimony of Crimaldi concerning the meaning of this question was a violation of Speice’s sixth amendment rights. After Agent Braseth had testified that Speice had directed the question, “Done any fishing lately?” to Crimaldi after De Stefano had made his dramatic threats about Crimaldi’s fading memory and eyesight, government counsel sought to elicit the true meaning of Speice’s question. Braseth related that in the past ten years during which he was a federal agent, lie had gone underground and posed as a gangster many times, and had made hundreds of criminal associations. In the course of these associations he had heard expressions such as “fish bait,” “We’re going fishing,” and “He’s going to be fish bait,” and that all these expressions meant that some person would be cut up and dumped into the lake. On cross-examination, however, Braseth’s testimony took a different color. He testified that the only other time he had heard someone talk about “taking a person fishing” (aside from the elevator occurrence) was many years before when a tavern owner used it to intimate that he was going to kill a stool pigeon. The following exchange then occurred: Q. And yet you told the Grand Jury that this is something that trigger men and murderers for the crime syndicate used, right ? A. Yes sir. That is what Mr. Crimaldi told me. Speice’s counsel moved to strike the portion of the answer relating to what Crimaldi told Braseth about the meaning of “Done any fishing lately?”, but the motion was denied. On re-direct examination the government further elicited Crimaldi’s testimony, through Agent Braseth, about the meaning of the disputed question. Braseth testified that he knew that “Have you done any fishing lately?” was a crime syndicate expression used by murderers for dumping a cut-up victim into a lake because Crimaldi told him so. Braseth also insisted that his interpretation of Speice’s question was the same that Mr. Crimaldi had put on it. In its closing arguments to the jury, the government emphasized three times over objection that Speice’s expression was a subtle threat to kill Crimaldi, for that was what it meant to Crimaldi. The net effect of these repeated reminders to the jury of what interpretation Crimaldi put on the question “Done any fishing lately?” was to make Crimaldi a witness against Speice without granting Speice an opportunity to cross-examine Crimaldi as to his reasons for regarding the words as a threat, rather than an innocent inquiry into his sporting activities. It is plain that Crimaldi’s testimony — through Agent Braseth — added “substantial, perhaps even critical, weight to the Government’s case in a form not subject to cross-examination,” Bruton v. United States, 391 U.S. 123, 128, 88 S.Ct. 1620, 1623, 20 L.Ed.2d 476 (1968), and deprived Speice of his right to confront the witnesses against him. Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). For this reason, we find that the admission of the testimony relating to Crimaldi’s interpretation of the remarks, over the objection of the defendant, violated his right of confrontation as guaranteed by the sixth amendment of the United States Constitution. III. Deliverance of Supplemental Charge to the Jury. Defendant De Stefano has also presented a thoughtful argument attacking both the wording of a supplemental charge delivered to the jury during its deliberations and the circumstances under which it was delivered. The jury began its deliberations at 5:45 p. m. on March 15, 1972 and continued, with time out for dinner, until 10:00 p. m. that evening. The next morning one of the jurors awoke with a slight headache, and promptly took two aspirin for relief. Finding that the aspirin upset her empty stomach, she skipped breakfast, but joined the other jurors to commence deliberations at 8:00 a. m. Noticing her distress, however, the jurors suggested that a nurse or doctor might be available, and sent an inquiry along these lines to the trial judge. By order of the judge, the sick juror was taken to the health unit, where she was given a medication commonly used for upset stomachs and was told to lie down for a while. After an hour, she pronounced herself fit to continue deliberations, and she rejoined the jury at 10:30 a. m. At 11:00 a. m. the trial judge gave the following instruction, which he claimed was in conformity with the mandate of this court in United States v. Brown, 411 F.2d 930 (7th Cir. 1969), cert. denied, 396 U.S. 1017, 90 S.Ct. 578, 24 L.Ed.2d 508 (1970): In a large proportion of cases absolute certainty cannot be expected. The verdict must be the verdict of each individual juror and not a mere acquiescence in the conclusion of others. Each of you should examine the questions submitted with proper regard and deference for the opinions of each other, and you should consult with one another and deliberate with a view to reaching an agreement if it can be done without violence to individual judgment. It is your duty to decide this case if you can conscientiously do so. In the course of your deliberations a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous. No juror should surrender his honest conviction as to the weight or the effect of the evidence solely because of the opinion of his fellow jurors or for the mere purpose of returning a verdict. Each juror must decide the case for himself, but only after impartial consideration of the evidence with his fellow jurors. If a large number of jurors favor conviction, the smaller number of jurors should consider the reasonableness of their doubt when it makes no impression upon the minds of other jurors who are equally intelligent and impartial and who have heard the same evidence. If, on the other hand, a much-larger number of jurors favor acquittal, the smaller number of jurors should ask themselves whether they might not reasonably doubt the correctness of their judgment. Likewise, the jurors in a majority favoring a finding for either party should ask themselves whether they might not reasonably doubt the correctness of their judgment when it makes no impression upon the minds of the minority jurors, equally intelligent and impartial as they are, and who have heard the same evidence. If you fail to agree on a verdict the case is left open and undecided. Like all eases, it must be disposed of some time. Any future jury must be selected in the same manner and from the same sources as you have been chosen, and there is no reason to believe that the case would ever be submitted to twelve men and women more competent than you to decide it, or that the case could be tried any better or more exhaustively than it has been here, or that more or clearer evidence could be produced on behalf of either side. Let me again remind you, as I did in my instructions yesterday, that you are to consider the guilt or innocence of these defendants individually, based upon the evidence in regard to each of these defendants individually. Ladies and gentlemen, you may now retire and reconsider the evidence in the light of this instruction. Defendant De Stefano argues that he was prejudiced by the giving of the supplementary charge because 1) the language of the charge actually was outlawed by this court in Brown, and was sufficiently coercive to deprive him of trial by an impartial jury, and 2) the circumstances under which it was given made it inherently coercive. In United States v. Brown, supra, this court was asked to hold that a version of the charge sanctioned in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L. Ed. 528 (1896) (the “Allen charge”) was per se coercive and unconstitutional as a deprivation of due process and a denial of the right to trial by an impartial jury. Refusing to so hold, this court noted that supplemental instructions served a “beneficial role in the adjudication of eases despite the possibility of rare prejudice to the defendant.” 411 F.2d at 932. Nevertheless, this court, in an attempt to articulate some standards for the delivery of supplementary charges, directed under its supervisory power that district courts within this circuit “comply with the standards suggested by the American Bar Association’s Trial by Jury publication” Id. at 933, and instruct juries in a “manner consistent with the recommended standards.” Id. at 934. Ironically, the controversy over the supplemental charge in this case results from the failure of the Brown decision to be as precise as it intended to be in its identification of the objectionable elements of the Allen charge and its articulation of standards; for defendant De Stefano disputes whether the trial judge at his trial instructed the jury in a “manner consistent with the recommended standards.” Obviously, the judge gave the jury the entire instruction contained in the ABA Standards— but he also added several other sentences that are the center of controversy. The issue, then, is whether these additional sentences conform to or detract from the ABA Standards. The Brown opinion provides little guidance in our determination of whether the elements of the supplemental charge added by the trial judge to the ABA Standards violated the spirit of Brown. We are told by commentators that the ABA Standards, by virtue of their uninducing nature, may have to be supplemented by other instructions in order to get juries to pursue meaningful deliberations. United States v. Thomas, 146 U.S.App.D.C. 101, 449 F.2d 1177, 1192 (D.C.Cir.1971) (Robb, J. dissenting), Note, Supplemental Jury Charges Urging a Verdict — The Answer is Yet to Be Found, 56 Minn.L.Rev. 1199, 1214 (1972), Comment, The Allen Charge: Recurring Problems and Recent Developments, 47 N.Y.U.L.Rev. 296, 315 (1972). In fact, the ABA Standards do not prohibit the addition of any other instructions or require the use of any particular language, but merely identify five points on which the jury should be advised. ABA Standards, supra note 8, at 146. But the Brown opinion provides no guidance for ruling upon the propriety of additions to the ABA Standards, for it did not exhaustively articulate what aspects of the Allen charge it found inconsistent with the ABA Standards or objectionable for other reasons. Note, Supplemental Jury Charges Urging a Verdict, supra, at 1206. Consequently, we must consider what aspects of the Allen charge the Brown decision most likely found objectionable, whether the addition of the ABA instructions would correct any coercive impact of the elements of the Allen charge that were used in the supplemental charge delivered in the instant case, and whether the supplemental instruction, as a whole, was within the spirit of the Brown decision. Our review of Brown, other judicial opinions, and various commentaries reveals almost a unanimous consensus as to what is objectionable about the language of the Allen charge. We believe that the supplemental charge given by the district court corrected or moderated the potentially coercive elements of the Allen charge that these authorities have implicated. Probably the single greatest source of potential coercion in the traditional Allen charge is its wording singling out the minority and directing them alone to re-examine their thinking, thus turning the deliberation process into a sort of “Gallup Poll” mechanism. Commentators have suggested that any suggestion to the minority to reconsider its view should be balanced by a similar suggestion to the majority to reconsider its view in the light of the arguments of the minority, and by the admonition to jurors that they should not abandon their views if they are honestly convinced. The supplemental charge delivered in Mr. De Stefano’s trial contained these “balancing elements” to remove any potential coercion inherent in the admonition to minority jurors only. Commentators have also attacked the notice to jurors contained in variations to the Allen charge that if they do not decide the case, it must be retried. The instant supplemental charge has deleted such language and has substituted it with language that courts have found more acceptable. Finally, the critics object to the language in the Allen charge that implies that there is a duty to decide the case so that jurors should listen to each other with a disposition to be convinced. The supplemental charge given by the trial court, however, deleted any language coercing the reaching of a verdict and, instead, specifically told jurors not to surrender conscientiously held convictions. Defendant De Stefano argues, however, that the supplemental charge delivered by the district court contained significant aberrations from the ABA Standards, and that pursuant to Brown this court should reverse his conviction under its supervisory power. Dissecting the supplemental charge given by the trial judge, he cites several allegedly coercive aspects of it. We find that, taken together, these objections do not demonstrate a substantial departure from the spirit of the Brown decision to merit reversal of the defendant’s conviction. Although we are of the opinion that the charge must be considered as a whole in order to gauge its effect upon the jury, we will consider what we think are the more important of the defendant’s individual attacks on the charge. Defendant De Stefano first argues that the admonition to the jury that “absolute certainty cannot be expected” is actually a denigration of the reasonable doubt standard. He contends that since the instruction on reasonable doubt was not given with the supplemental instruction, the jury could have construed this admonition as allowing a different standard than that of reasonable doubt for finding him guilty. The defendant did not request that the trial judge re-instruct the jury on the meaning of the reasonable doubt standard when he learned that the supplemental charge was to be given. See, United States v. Hynes, 424 F.2d 754, 758 (2d Cir.), cert. denied, 399 U.S. 933, 90 S.Ct. 2270, 26 L.Ed.2d 804 (1970). Although we do not believe that the use of this instruction should be encouraged, we cannot say that it vitiated the reasonable doubt standard, for the remainder of the instruction three times told the jurors to consider the reasonableness of their doubts and instructed them to abandon their previously formulated opinions about the evidence only if they were “convinced” that their opinions were “erroneous.” Defendant De Stefano also objects to the supplemental instruction because it contains too many exhortations to jurors to listen to the opinions of others. But the instruction also admonishes the jurors not to abandon positions conscientiously held, and tells them not to abandon their own opinions if to do so would do violence to their individual judgment. In fact, the exhortations in the supplemental charge only encouraged the jurors to do what they were supposed to do —to engage in a group deliberation that will screen out errors, negate biases, and eliminate erroneous hypotheses. Finally, defendant argues that the portion of the supplemental charge telling the jury that “no more or clearer evidence could be produced on behalf of either side” is prejudicial because the jury could have interpreted it as a sign that Crimaldi had disappeared, probably because De Stefano and Speiee had actually carried out their threats. This argument overlooks the facts that during the trial the defendants themselves made pointed references to the failure of the government to produce Crimaldi, and that they thus created the distinct impression that it was the government who was responsible for Crimaldi’s absence. Furthermore, the trial judge repeatedly instructed the jury to base its verdict only on the evidence presented in the courtroom. We find, therefore, that the wording of the supplemental charge is consistent with Brown so that the reversal of defendant De Stefano’s conviction pursuant to our supervisory power is not required. Defendant De Stefano also argues that the peculiar circumstances surrounding the delivery of the supplemental charge made it coercive. He contends that the judge was pressuring the jury into a hasty verdict because of his realization that the sickness of the juror with the upset stomach could have prevented the agreement on any verdict. The evidence indicates, however, that the particular juror had already expressed her satisfaction with her health and her ability to deliberate before she returned to the jury room. Furthermore, no language in the instruction urged a speedy verdict, and the defendant can point to no other evidence of coercion under the circumstances other than his own speculations on the motivation of the judge in delivering the charge. We find that the presence of the ill juror did not make the delivery of the supplemental charge coercive under these circumstances. United States v. Grosso, 358 F.2d 154 (3d Cir. 1966), rev’d on other grounds, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968). Nor was the timing of the charge coercive per se or a violation of the ABA Standards. Defendant argues first that the charge should have been given with all the other instructions before the jury retired for its deliberations and that it could be given later only if all the other instructions were also repeated. The ABA Standards, however, plainly indicate that: If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). Thus, the ABA Standards do not require that the supplemental charge be given before deliberations begin; nor do they require the repetition of all the other instructions with the supplementary charge when the jury has been unable to agree. Defendant De Stefano’s second argument about the timing of the charge relies upon United States v. Contreras, 463 F.2d 773 (9th Cir. 1972), where the court reversed a conviction after the trial judge gave the Allen charge to a jury which had asked instead for instructions on evidence and points of law. The court said that the Allen charge should be given only when it is warranted, and the failure of the jury to indicate that it was deadlocked indicated that the supplemental instruction was not warranted. We find Contreras distinguishable on its facts — for here the jury did not show confusion about the law, but rather an inability to reach a verdict. Since the ABA Standards allow the delivery of a supplementary charge when a court perceives such a situation, and since reviewing courts ordinarily grant trial judges discretion in determining whether to give such a charge, we cannot follow Contreras in the circumstances in this case. Furthermore, the fact that the jury did not indicate that it was deadlocked before the instruction was given may actually be taken as evidence that the charge was not coercive, since under such circumstances dissenting jurors would be less likely to believe that the trial judge was trying to shake their decision. In addition, the fact that the jury continued to deliberate for at least four more hours after the supplemental charge was delivered indicates that instead of it having the coercive effect of the majority running roughshod over the minority, the supplemental charge caused the jury to take additional time to deliberate. We find, then, that neither the language of the supplementary charge nor the circumstances under which it was delivered warrant a finding that it was a violation of the defendant’s constitutional rights or inconsistent with our earlier Brown decision. IV. Other Objections Defendant De Stefano has also raised an assortment of other objections. We do not believe that any or all of these objections taken together merit reversal of his conviction. For the above reasons, the conviction of defendant Sam De Stefano is affirmed, and the judgment of conviction of Edward Speice is reversed and remanded for further proceedings. FAIRCHILD, Circuit Judge (concurring in part, dissenting in part). I concur in reversal of the judgment against Spcice. With all respect, I reach different conclusions on two propositions, which would also lead to reversal as to De Stefano. First: I think both defendants were entitled to the government’s assistance in serving a subpoena on Crimaldi. Perhaps he would have defied it, raising an issue for the court to resolve, but the prosecution should not be interposed between the defendant and his sixth amendment right to compulsory process. His testimony was so critical to the determination of truth in these circumstances that the defendants should not be required to demonstrate the extent to which his testimony would be favorable to them, as compared with the testimony of Braseth. Second: I consider portions of the supplementary charge objectionable under United States v. Brown, 411 F.2d 930 (7th Cir. 1969): (1) The admonition that absolute certainty cannot be expected; (2) the directions to the jurors who are in the minority to reexamine their views; (3) the portion which suggests that a different jury will be no better able to decide the case if left open by the present jury. Before SWYGERT, Chief Judge, and FAIRCHILD and CUMMINGS, Circuit Judges. AMENDED ORDER This matter comes before the Court on the motion of Julius Lucius Echeles, counsel for the defendant-appellant, suggesting the death of the defendant-appellant Sam DeStefano on April 14, 1973. The appellant’s conviction was affirmed on February 14, 1973, and a petition for rehearing and a suggestion of a rehearing en banc was filed by appellant on February 23, 1973. Prior to appellant’s death, a majority of the circuit judges who are in regular active service voted pursuant to Rule 35(a) of the Federal Rules of Appellate Procedure to rehear the appeal en banc. It is ordered that the appeal is dismissed as moot and the district court is directed to enter an order vacating the judgment of conviction and dismissing the indictment as moot. . On cross-examination Speice modified his testimony by saying lie “thought” ho heard De Stefano say: “My eyes are fading” but wasn’t sure. But when cross-examined by De Stefano, Speice flatly dcnied that he heard De Stefano say anything about his eyes fading. . De Stefano’s wife was apparently in the bail bond business. . The Pettibone indictment charged that the defendants conspired “to corruptly and by force and threats obstruct and impede the due administration of justice” and, thereafter, in pursuance of the conspiracy did “obstruct and impede the due administration of justice The indictment contained no allegation that the defendants acted knowingly; nor did it name the witnesses who were threatened or the court proceeding involved. . De Stefano refused to participate in tire telephone conversation. . When Speiee’s counsel was cross-examining Braseth about Crimaldi’s reactions to the threats uttered by the defendants, De Stefano interrupted and said: “May I acknowledge, without consulting him, Mr. Braseth is telling the truth in regards to him (Crimaldi) flushing. 1-Ie did flush. I am sorry, but he did flush, and that is a true statement that Mr. Braseth made. He did more than flush.” . In Gareoli, the defendant warned a person being questioned by FBI agents to be quiet, or else she would end up in a trunk. At trial, the person who received this apparent threat said she regarded defendant’s words as a joke. The court said that it was not necessary for the government to prove that the defendant’s words were interpreted as a threat in order to convict the defendant. Alternatively, the court said that the agent’s testimony that the witness demonstrated physical signs of fear was sufficient to show that the words were taken as a threat. . Indirect admission of Crimaldi's testimony without affording Speico his right of confrontation, however, did not amount to prejudicial error against De Stefano so that his conviction should be reversed. The evidence in the record is quite sufficient to establish that De Stefano uttered words that had a “reasonable tendency under the circumstances to place another in fear.” Landry v. Daley, 280 F.Supp. 938, 962 (N.D.Ill.1968), rev’d on other grounds, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971), and that De Stefano acted in such a manner while speaking these words to underscore their threatening nature. There is also sufficient circumstantial evidence to support jurors’ inferences that De Stefano knew that Grimaldi was to be a witness in a trial being conducted in federal court. Odom v. United States, 116 F.2d 996, 998 (5th Cir.), rev’d on other grounds, 313 U.S. 544, 61 S.Ct. 957, 85 L.Ed. 1511 (1941). . American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury § 5.4 at 145-46 (Approved Draft 190S) [hereinafter cited as ABA Standards |. 5.4 Length of deliberations: deadlocked jury. (a) Before the jury retires for deliberation, the court may give an instruction which informs the jury: (i) that in order to return a verdict, each juror must agree thereto; (ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without, violence to individual judgment; (iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors ; (iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and (v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere punióse of returning a verdict. (b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals. (c) The jury may be discharged without • having agreed upon a verdict if it appears that there is no reasonable probability of agreement. . United States v. Fioravanti, 412 F.2d 407, 417 (3d Cir.), cert. denied, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969), Burrup v. United States, 371 F.2d 556, 559 (10th Cir. 1967) (Phillips, J., concurring), Note, Supplemental Jury Charges Urging a Verdict — The Answer Is Yet To Be Found, 56 Minn.L.Rev. 1199, 1210 (1972), Comment, The Allen Charge: Recurring Problems and Recent Developments, 47 N.Y.U.L.Rev. 296, 315 (1972). Note, Due Process, Judicial Economy and the Hung Jury: A Re-Examination of the Allen Charge, 53 Va. L.Rev. 123, 143 (1967). . United States v. Flannery, 451 F.2d 880, 883 (1st Cir. 1971), United States v. Sawyers, 423 F.2d 1335, 1340 (4th Cir. 1970), Mangan v. Broderick & Bascom Rope Co., 351 F.2d 24, 30 (7th Cir.), cert. denied, 383 U.S. 926, 86 S.Ct. 930, 15 L.Ed.2d 846 (1965), Supplement to Report of the Committee on the Operation of the Jury System of the Judicial Conference of the United States 2 (1969), Comment, On Instructing Deadlocked Juries, 78 Yale L.J. 100, 140 (1968). With reference to the argument by defendant De Stefano that the address to both the majority and the minority to reexamine their respective positions is contrary to the ABA Standards, the following comment is instructive: Since the ABA charge encourages each juror not to hesitate to re-examine his thinking the minority may argue that both the majority and minority position should be rethought. This device makes it as clear as possible that the court is not favoring majority thinking solely because it is majority thinking. Note, Supplemental Jury Charges, supra note 9, at 1212 n. 75. In essence, what the trial judge in the instant case, did was to make obvious what the ABA Standards implicitly tell jurors to do. . Comment, The Allen Charge, supra note 9, at 302. . United States v. Brown, 411 F.2d 930, 933 (7th Cir. 1969), cert. denied, 396 U.S. 1017, 90 S.Ct. 578, 24 L.Ed.2d 508 (1970), United States v. Flannery, 451 F.2d 880, 883 (1st Cir. 1971). . United States v. White, 382 F.2d 445, 450 (7th Cir. 1967). See also, Brandom v. United States, 431 F.2d 1391, 1399 (7th Cir. 1970), cert. denied, 401 U.S. 942 91 S.Ct. 950, 28 L.Ed.2d 223 (1971) where an instruction substituting the language “the case is left open and undecided and like all eases, it must be disposed of some time” for the language “the case must be retried” was found to be preferable to the Brown instruction. . Note, Supplemental Jury Charges, supra note 9, at 1212-13. . C. Joiner, Civil Justice and the Jury 26-27 (1962). See also, Johnson v. Louisiana, 406 U.S. 356, 361, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), Apodaca v. Oregon, 406 U.S. 404, 379, 92 S.Ct. 1628, 1642, 32 L.Ed.2d 184 (Powell, J. concurring, in an opinion filed with Johnson v. Louisiana.) . During closing argument, for example, De Stefano argued: Then let’s go to the main witness, their chief witness Crimaldi. I have demanded, subpoenaed .and done everything to bring him here. When the government objected to this line of argument, Speiee’s counsel interjected : I believe Mr. De Stefano misunderstood your Honor’s ruling. I am sure your Honor is not telling him that he cannot comment upon the failure of the government to bring in Mr. Crimaldi. Although De Stefano and Speice’s counsel were ordered to desist in their remarks about Crimaldi’s absence, the jury nevertheless got the inevitable impression that the government was responsible for his nonappearance. . United States v. Martinez, 446 F.2d 118, 119 (2d Cir.), cert. denied, 404 U.S. 944, 92 S.Ct. 297, 30 L.Ed.2d 259 (1971), United States v. Seasholtz, 435 F.2d 4, 7 (10th Cir. 1970). . United States v. Bambulas, 471 F.2d 501 at 506 (7th Cir. 1972); United States v. Pope, 415 F.2d 685, 690-691 (8th Cir. 1969), cert. denied, 397 U.S. 950, 90 S.Ct. 973, 25 L.Ed. 132 (1970).

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Caselaw Access Project

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2024-08-24T03:29:51.129683

COLUMBIA BROADCASTING SYSTEM, INC., et al., PlaintiffsAppellants, v. TELEPROMPTER CORPORATION and Conley Electronics Corporation, Defendants-Appellees. No. 353, Docket 72-1800. United States Court of Appeals, Second Circuit. Argued Jan. 11, 1973. Decided March 8, 1973. Asa D. Sokolow and Seymour Graubard, New York City (Rosenman, Colin, Kaye, Petschek, Freund & Emil, New York City, for appellant Columbia Broadcasting System, Inc.; Marshall, Bratter, Greene, Allison & Tucker, New York City, for appellant Calvada Productions; Alexander & Green, New York City, for appellant Jack Chertok Television, Inc.; Graubard, Moskovitz, McGoldrick, Dannett & Horowitz, New York City, for appellant Dena Pictures, Incorporated, on the brief), for appellants. Robert C. Barnard, Washington, D. C., and Julius Levy, New York City (Cleary, Gottlieb, Steen & Hamilton, New York City, R. Michael Duncan, Washington, D. C., of counsel, and Katz, Rosensweig & Sindle, David Z. Rosensweig, New York City, of counsel, on the brief), for appellees. Paul, Weiss, Rifkind, Wharton & Garrison, Herman, Finkelstein, Simon H. Rifkind, Jay H. Topkis and Paul L. Laskin, New York City, on the brief, amicus curiae for American Society of Composers, .Authors and Publishers. Stuart F. Feldstein, Charles S. Walsh and Stephen A. Gold, Washington, D. C., on the brief, amicus curiae for National Cable Television Association, Inc. Phillips, Nizer, Benjamin, Krim & Ballon, Louis Nizer, Gerald Meyer and Gerald F. Phillips, New York City, of counsel, on the brief, amicus curiae for Motion Picture Association of America, and others. Before LUMBARD, KAUFMAN and MANSFIELD, Circuit Judges. LUMBARD, Circuit Judge: Plaintiffs-appellants, Columbia Broadcasting System, Inc. (CBS), Calvada Productions, Jack Chertok Television, Inc., and Dena Pictures, Incorporated appeal from a final judgment entered after trial in the Southern District. Appellants commenced this copyright infringement action against defendantsappellees, Teleprompter Corporation (Teleprompter) and its subsidiary Conley Electronics Corporation, who own and operate numerous Community Antenna Television (CATV) systems throughout the country. Appellants are creators and producers of television programs that were protected by statutory copyrights and that were licensed to television stations affiliated with the CBS Television Network, a division of CBS, and to several independent television stations. The complaint alleged that the Teleprompter cable systems intercepted the signals of television stations broadcasting appellants’ copyrighted works and then channeled these programs to their paying subscribers without authorization or license, thereby infringing appellants’ copyrights. After trial, the district court, holding that the reception of telecasts of appellants’ copyrighted programs by Teleprompter’s CATV systems and the distribution of these programs to CATV subscribers did not infringe appellants’ copyrights, entered judgment dismissing the complaint. From that judgment, appellants have taken this appeal. The pertinent facts were the subject of two lengthy stipulations and are basically undisputed. The legal issue concerns the proper interpretation to be given to § 1(c) and (d) of the Copyright Act of 1909, 17 U.S.C. § 1(c) and (d). This provision gives the copyright holder the exclusive right, inter alia, to perforin the copyrighted work. The issue here, therefore, is whether Teleprompter’s CATV systems “performed” the copyrighted works within the meaning of this provision. In resolving this question, we are not writing on a clean slate, for the Supreme Court, on somewhat different facts, considered the meaning of “perform” in this provision in Fortnightly Corp. v. United Artists, Inc., 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968). Relying on Fortnightly, the district court held that the CATV systems here did not “perform” the copyrighted works. The allegations of infringement were limited to an illustrative group of copyrighted programs. Similarly, the complaints charged five specific and illustrative CATV systems with having infringed appellants’ copyrights, although presumably other CATV systems owned by Teleprompter conducted similar activities. As a result, the copyright claims at issue involve, and are limited to, the operations of Teleprompter’s CATV systems in five cities at stated periods: Elmira, New York in November 1964; Farmington, New Mexico in November 1964, June 1969, and March 1971; Rawlins, Wyoming in June 1969; Great Falls, Montana in June 1969; and New York City in June 1969 and March 1971. A knowledge of the operations of each of these systems is essential to an understanding of our resolution of the issues. Elmira: In November 1964, the date of the only infringement alleged with regard to the Elmira CATV system, the system had the capacity to carry twelve television channels. It received and provided its viewers with the programs of ten television broadcast stations located in Elmira and in communities varying from 46 to 173 miles away. Broadcasts from CBS affiliates, as well as from some stations with other network affiliations, in Buffalo (119 miles), Scranton (76 miles), Syracuse (64 miles), and Binghamton (46 miles) were received off-the-air at the system’s antenna site on a hill adjacent to Elmira and were made available to the system’s subscribers. Because of distance and topographical conditions, satisfactory reception of the stations in Buffalo and Scranton is not available by means of rooftop antennas in most locations in and around Elmira. Satisfactory reception of the Syracuse stations is available only in some locations in the northern portion of Elmira. One of the Binghamton stations can be satisfactorily received from rooftop antennas, but the other station cannot. In addition, the Elmira system had two channels that were provided by means of microwave links. One of these was licensed to the school system, which originated educational programming that was transmitted by microwave from the schools to the CATV system for distribution. The second microwave link served to connect the system with an antenna nearer New York City, where a New York independent station was received off-the-air. None of the copyrighted programs was broadcast by this independent station. Farmington: On two of the dates of alleged infringement, November 1964 and June 1969, Teleprompter operated a five-channel system in Farmington. The system received and distributed to its subscribers the signals of four broadcast stations, all of which were received off-the-air on antennas located on a mesa thirty miles from Farmington. Originally, all the stations were from Albuquerque, New Mexico (144 miles from Farmington); later, a station from Durango, Colorado (43 miles) was added during periods when one of the Albuquerque stations was not broadcasting. Because of distance and mountainous terrain, reception of the Albuquerque stations directly off-the-air by means of rooftop antennas was not feasible. However, the Albuquerque stations, including a CBS affiliate that broadcast several of the copyrighted programs, were received in Farmington on rooftop antennas because they were rebroadcast by “translators” under a license issued by the Federal Communications Commission and pursuant to authorization given by CBS and the station. The mountainous terrain also made it impossible to receive by means of rooftop antennas the Durango station, which is also a CBS affiliate. This Durango station, however, entered into a letter agreement with the Farmington CATV system in which it authorized the latter to distribute the station’s programming to its subscribers. By March 1971, the third date of alleged infringement, the system had been rebuilt with twelve-channel equipment. At this time, it received and distributed the broadcasts of nine stations: four from Albuquerque, one from Durango, and four independent stations from Los Angeles (600 miles from Farmington). Obviously, the Los Angeles stations were not receivable from rooftop antennas in Farmington. These stations were received on an antenna located approximately fifty miles from Los Angeles and linked with the Farmington system by a microwave system, 1300 miles in length. On the one additional channel available to the system in 1964 and 1969, it originated some limited programming, which consisted of general interest programs such as local news, sports, and movies, an automated time and weather scan, and occasionally some educational programs. When the channel capacity had increased in 1971, the automatic time and weather scan was originated on a non-broadcast channel on a full-time basis. On a second non-broadcast channel, educational programming was offered. And on the third available channel, the CATV system originated twenty hours per week of general interest programs. Rawlins: At the time of the alleged infringement, in June 1969, the Rawlins CATV system had a twelve-channel capacity. The system received and made available to its subscribers programming from six broadcast stations, five from Denver, Colorado (184 miles from Rawlins), on which the copyrighted programming was carried, and one from Casper, Wyoming (87 miles from Rawlins). The system received the Denver stations, which could not be received in Rawlins from rooftop antennas, off-the-air on antennas located ninety miles from Denver, and transmitted them by microwave link to Rawlins. The Casper station was received off-the-air on an antenna located at the edge of town. Because of mountainous terrain, reception of the Casper station directly off-the-air by rooftop antennas was not generally possible; however, the Rawlins audience did receive its broadcasts as a result of rebroadcasts by a translator. At the time of the alleged infringement, the only program origination on non-broadcast channels that the CATV system produced was an automated time and weather scan. Great Falls: The Great Falls CATV system was a twelve-channel system at the time appellants allege it to have infringed their copyrights. It received and distributed to its subscribers programming of nine broadcast stations. Three of the stations (including the one that broadcast the program whose copyright is alleged to have been infringed) were in Spokane, Washington (286 miles from Great Falls), one was in Lethbridge, Canada (163 miles away), two were- in Salt Lake City (466 miles away), and one was in Helena (71 miles away). The system received the signal of each of these stations off-the-air by means of antennas located at varying distances from the originating stations (17 to 95 miles) and transmitted it by microwave to a point in Great Falls, from which it was distributed by cable to the system’s subscribers. Because of distance, mountainous terrain, and the limitations of the individual stations, the Great Falls audience could receive none of these broadcast stations by means of rooftop antennas. In addition, the system received the signals of two Great Falls stations off-the-air by means of antennas located in the community, and distributed these signals to its subscribers. On a non-broadcast channel, the system offered an automated time and weather scan. On another non-broadcast channel, the system originated ten hours per week of movies and local interest programs. New York: At the time of the first alleged infringement, in June 1969, Teleprompter’s New York CATV system had a twelve-channel capacity. By March 1971, the time of the second alleged infringement, its capacity had increased to thirteen channels. Under the terms of the system’s franchise, it must receive and distribute all eleven New York City stations and is barred from importing any stations from outside New York City. From time to time, microwave has been used to connect the system’s main antenna with two subsidiary antennas. The signals of the New York stations were received off-the-air by these antennas and distributed by cable to the subscribers. The New York system, on its non-broadcast channels, offered several forms of automated originations, in addition to originating from forty to seventy hours of local and general interest programming per week. In connection with one of the latter types of originations, a sports event, the Teleprompter system sold some commercial time and interconnected with other CATV systems in the New York area. I. Fortnightly Corp. v. United Artists, Inc. The starting point in our analysis of appellants’ copyright-infringement claims must, of course, be the Supreme Court’s decision in Fortnightly Corp. v. United Artists Television, Inc., supra. In deciding whether the Fortnightly CATV system “performed,” within the meaning of the Copyright Act, the programming that it provided to subscribers, the Court applied a functional test and held that the CATV system there involved was functionally related more to the television viewer, who does not “perform,” than to the television broadcaster, who does “perform.” In this regard, Mr. Justice Stewart, speaking for the Court, said: The television broadcaster in one sense does less than the exhibitor of a motion picture or stage play; he supplies his audience not with visible images but only with electronic signals. The viewer conversely does more than a member of a theater audience; he provides the equipment to convert electronic signals into audible sound and visible images. Despite these deviations from the conventional situation contemplated by the framers of the Copyright Act, broadcasters have been judicially treated as exhibitors, and viewers as members of a theater audience. Broadcasters perform. Viewers do not perform. . When CATV is considered in this framework, we conclude that it falls on the viewer’s side of the line. Essentially, a CATV system no more than enhances the viewer’s capacity to receive the broadcaster’s signals; it provides a well-located antenna with an efficient connection to the viewer’s television set. (Emphasis added.) 392 U.S. 390, pp. 398-399, 88 S.Ct. 2084, pp. 2088-2089. The teaching of Fortnightly is that a CATV reception service that receives broadcast signals off-the-air from an antenna or other receiving equipment erected within or adjacent to the community it serves, and distributes the programming received to subscribers, does not “perform” the programs and, thus, is not subject to copyright liability, even though the subscribers could not otherwise receive the programs without the aid of CATV. Appellants correctly note that the operations of each of the CATV systems involved here were different and broader than those of the system before the Supreme Court in Fortnightly. Fortnightly’s system provided a simple reception service and consisted of “antennas located on hills above each city, with connecting coaxial cables, strung on utility poles to carry the signals received by the antennas to the home television sets of individual subscribers.” Fortnightly, p. 392, 88 S. Ct. p. 2085. Although Fortnightly was decided in 1968, the litigation in that case had been instituted in 1960, and, as a result, the Court considered CATV in a state of technology that was then eight years out-of-date. Hence, the Court did not have before it a system that originated programming on non-broadcast channels, that sold commercials on its origination programming, that had the capacity to interconnect with other CATV systems, that utilized microwave links in bringing broadcast signals to its subscribers, and that imported signals from stations located hundreds of miles away from the community that the system was intended to serve. Appellants’ counsel inform us that the Supreme Court was made aware of the changing technology of CATV by counsel for amici and by counsel for Fortnightly (who represent Teleprompter here). Indeed, the Court’s opinion in at least two places implied that it was aware of this fact and was not necessarily laying down a broad rule to apply to all CATV systems regardless of the nature of their operations. The question before us is whether the character of CATV is so changed by the additional services that the cable systems here have undertaken that their total operation, including the reception service, under the Fortnightly functional test, have become functionally equivalent to those of a broadcaster, and thus these systems should be deemed to “perform” the broadcast programming that they distribute. The additional operations undertaken by these CATV systems, which appellants contend distinguish this case from Fortnightly and bring about this asserted metamorphosis in the character of CATV, are the following: 1) origination of programming on non-broadcast channels, and the sale of commercial time on such non-broadcast programming; 2) interconnection with neighboring CATV systems; 3) use of microwave links in bringing broadcast programming to subscribers; and 4) the importation of distant broadcast signals from outside the area served by the CATV system. We shall consider in order the effect of each of these operations on the application of the Fortnightly doctrine to the CATV systems involved. II. Non-broadcast Program Origination At the outset, we reiterate that what is involved here is the origination of programming on channels not used for the distribution of broadcast signals and the sale of commercials on such non-broadcast channels. We do not have before us, and thus do not consider, the question of what the effect would be on the Fortnightly doctrine if programs originated by the CATV system were used to replace selected broadcast programming received from network or independent stations that would otherwise have been distributed without alteration to subscribers on broadcast channels. Similarly, we do not have before us a CATV system that sold commercials on broadcast programming to replace the commercials sold and transmitted by the broadcast station. Although the Supreme Court noted in Fortnightly that it was not dealing with a CATV system that originated non-broadcast programming, we fail to see why a system’s program origination on channels other than those on which it relays broadcast programming should alter the result in Fortnightly. Obviously, the system “performs” those programs that it originates for distribution to its subscribers. However, we do not see the logic in appellants’ contention that this program origination serves to convert the CATV system into a “performer” of those programs that it distributes to its subscribers on broadcast channels. Even though the origination service and the reception service are sold as a package to the subscribers, they remain separate and different operations, and we cannot sensibly say that the system becomes a “performer” of the broadcast programming when it offers both origination and reception services, but remains a nonperformer when it offers only the latter. In support of their contention, appellants point to Associated Music Publishers, Inc. v. Debs Memorial Radio Fund, Inc., 141 F.2d 852 (2d Cir.), cert. denied, 323 U.S. 766, 65 S.Ct. 120, 89 L. Ed. 613 (1944). In that case, the defendants had argued that they should not be subject to copyright liability for programs that they broadcast without advertising support but merely as a service to their listeners. This court rejected that contention, noting that the programs, even without advertising, served to increase the total number of station listeners and thus helped to maintain the station as a successful financial entity. Appellants argue that Debs supports their position that the various functions of the CATV systems should be considered as a whole to determine whether the system is functionally equivalent to a broadcaster, in which event it should be deemed a “performer” with regard to all programming it relays to its subscribers. This argument is but a general statement of appellants’ particular contention that non-broadcast program origination converts the system into a “performer” with regard to broadcast programming distributed to subscribers. Debs, however, does not support either proposition. The issue there was not whether the programs had been “performed” — indeed, having broadcast the programs, the station could hardly contend it was not a “performer”- — but whether the programs had been performed “for profit”; and one can readily see that indirect “profit” accrued to the station in Debs as a result of its unadvertised broadcast of these programs. That decision is not authority for appellants’ broad proposition that the operations of .a CATV system must be viewed and evaluated for copyright purposes as a whole; and, thus, neither can it support the contention that a system’s non-broadcast program origination converts it into a “performer” of broadcast programs distributed to subscribers by its reception service. Therefore, we hold that the fact that certain of the CATV systems involved here originated programming on non-broadcast channels did not make them “performers,” for copyright purposes, of broadcast programming distributed to subscribers. A contrary approach would be unnecessarily wooden and mechanical in its application of copyright law to CATV. With regard to the sale of commercial time on non-broadcast programming, although this is another step bringing cable origination programming in competition to some extent with broadcast programming, again, we do not agree with appellants’ position that there is some sort of “spill-over” effect by which the system becomes a “performer” with regard to its reception service. III. Interconnection As noted earlier, Teleprompter’s New York CATV system has occasionally interconnected its facility with those of the two other CATV systems operating in the New York area. Appellants analogize this activity to the networking that is common among broadcast stations, and they point to this as another factor making the New York system functionally equivalent to a broadcaster. However, the only interconnection with which we are concerned occurred in two instances of sporting events that the system originated on non-broadcast channels. There was no interconnection here relating to the reception of any telecast of appellants’ copyrighted programs, or indeed of any broadcast programming, received by the system and distributed to subscribers. Therefore, we are not presently in a - position to evaluate what effect interconnection may have on CATV copyright liability if and when it ever reaches the point at which it is equivalent to a network of CATV systems. In light of the minimal interconnection we have before us, we must agree with the district court that “[w]hatever this brief interconnection may portend for the future, it [did] not transform [Teleprompter’s] present CATV system into a broadcasting network as [appellants] suggest.” IV. Microwave A relatively recent development in CATV technology that was not before the Court in Fortnightly is the use of microwave to transmit a broadcast signal from the point of its reception off-the-air to the point from which it is distributed by cable to the homes of subscribers. Typically, microwave is used to import distant signals into the CATV community, an activity the effect of which on the issue before us we shall consider below. However, the use of microwave is not necessarily limited to this activity. Appellants contend that the use of microwave, in and of itself, is sufficient to make a CATV system functionally equivalent to a broadcaster and thus subject to copyright liability for all the programming it receives and distributes to its subscribers. We are unconvinced by this contention. Neither do we believe that the use of microwave makes the system a “performer” only of that programming with respect to which the microwave is used. Microwave utilizes point-to-point communication and is merely an alternative, more economical in some circumstances, to cable in transmitting a broadcast signal from one point in a CATV system to another. Hence, we see no reason to attach legal significance, in terms of copyright liability, to the decision to utilize microwave links. V. Importation of Distant Signals Appellants’ final and, in the end, most persuasive contention relates to the fact that certain of the CATV systems involved here distributed to their subscribers signals from broadcast stations located many miles from the communities served by the systems. In CATV parlance, this is known as the importation of distant signals. This activity was not before the Supreme Court in Fortnightly, and appellants contend that that decision did not signify that a CATV system does not “perform” a copyrighted television program when it brings the signal in from another community, often from another television market, and distributes that signal to subscribers. The CATV system ' in Fortnightly brought television signals to viewers who could not otherwise have received them. However, these signals were already in the community and were not imported by the CATV system from another community, as is evidenced by the fact that the system received them from an antenna located in or directly adjacent to the CATV community. It was only because of topographical conditions in and around the community that residents could not receive the signals on their receivers. Thus, it was the office of the CATV system in Fortnightly to use its advanced antenna technology and equipment to overcome these adverse conditions and thereby to bring the signals to members of the community. The Supreme Court held that, in performing this function, the CATV system did not “perform,” within the meaning of the Copyright Act, the programming carried on those signals. However, in United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968), decided just one week before Fortnightly, the Court explicitly recognized that this was only one of two major services that CATV systems render to the communities they serve. In this regard, Mr. Justice Harlan, speaking for the Court, stated at p. 163, 88 S.Ct. at P. 1998: CATV systems perform either or both of two functions. First, they may supplement broadcasting by facilitating satisfactory reception of local stations in adjacent areas in which such reception would not otherwise be possible; and second, they may transmit to subscribers the signals of distant stations entirely beyond the range of local antennae. When a CATV system is performing this second function of distributing signals that are beyond the range of local antennas, we believe that, to this extent, it is functionally equivalent to a broadcaster and thus should be deemed to “perform” the programming distributed to subscribers on these imported signals. See Select Theatres Corp. v. Ronzoni Macaroni Co., 59 U.S.P.Q. 288 (S.D.N.Y., 1943), cited in Fortnightly, 392 U.S. at 398, n. 23, 88 S.Ct. 2084, for the proposition that “broadcasters perform.” The system’s function in this regard is no longer merely to enhance the subscriber’s ability to receive signals that are in the area; it is now acting to bring signals into the community that would not otherwise be receivable on an antenna, even a large community antenna, erected in that area. In Fortnightly, the CATV system distributed the programs to an audience to which they would not otherwise have been presented. But the Court did not find this fact significant for copyright purposes. The Court found that the CATV system made these programs available to this new audience by providing it with the services of an advanced antenna. It then reasoned that, since a television viewer was privileged to view whatever programs he could receive using any available antenna, a CATV system should not be deemed a “performer” for copyright purposes when it provided this antenna service as a commercial venture. When a distant signal is involved, CATV is again distributing television programming to a new audience that could not otherwise have viewed it. However, in this case, the new audience is one that would not have been able to view the programs even if there had been available in its community an advanced antenna such as that used by the CATV system. The added factor in such a case is the signal transmitting equipment, such as microwave links, that is used to bring the programs from the community where the system receives them into the community in which the new audience views them. The viewer’s ability to receive the signal is no longer a product solely of improved antenna technology; rather, it results from the system’s importation of the signal into the CATV community from a separate, distant community. As a result, we no longer have a system that “no more than enhances the viewer’s capacity to receive the broadcaster’s signals.” Fortnightly, p. 399, 88 S.Ct. p. 2089. We hold that when a CATV system imports distant signals, it is no longer within the ambit of the Fortnightly doctrine, and there is then no reason to treat it differently from any other person who, without license, displays a copyrighted work to an audience who would not otherwise receive it. For this reason, we conclude that the CATV system is a “performer” of whatever programs from these distant signals that it distributes to its subscribers. There remains, however, the difficult problem of defining what is a distant signal. The range of a television signal is a function of many factors, including the current state of broadcast and reception technology. Some of these factors, such as topography, are unchanging in a particular area. But broadcast and reception technology are in a constant state of flux. Moreover, in determining the range of a broadcast signal, it may not be enough to say that the signal is or is not receivable in the community served by the CATV system. The fact that the signal can be received may not be meaningful unless it can project an image that is acceptable according to industry norms. Thus, it seems clear that a precise judicial definition of a distant signal is not possible. The FCC, for purposes of the CATV signal-carriage requirements, at one time categorized signals as “distant” and “local” in terms of their ability to be received a substantial portion of the time by a substantial portion of the homes in the area by means of home antennas. However, we find this definition unsuitable for copyright purposes because we believe that any definition phrased in terms of what can be received in area homes using rooftop antennas would fly in the face of the mandate of Fortnightly. Thus, in the absence of legislation on this matter, we must undertake to establish some standard for determining what is a distant signal for copyright purposes. Any determination that „a particular television signal is “distant” must, of course, be made with respect to its proximity to a specific local area, which we have termed the CATV community, served by the CATV system and designated in a franchise issued to it by a state or local government body or regulatory authority. To say that a particular signal is already in the community, which is to say there is no need to import it through a relay or retransmittal device (such as microwave, cable, satellite, or the like), is to indicate that it can be received in the community during a substantial portion of the time by means of an antenna, such as a large community antenna or other receiving device, that is available under current technology. Thus, the meaning of “distant signal” must be determined in light of the current broadcasting and receiving technology. In this regard, we find that it is easier to state what is not a distant signal than to state what is a distant signal. Accordingly, we have concluded that any signal capable of projecting, without relay or retransmittal, an acceptable image that a CATV system receives off-the-air during a substantial portion of the time by means of an antenna erected in or adjacent to the CATV community is not a distant signal. This seems to us to be required by Fortnightly. When the community from which the signal originates, which we term the originating community, and the CATV community are different, and when the signal is initially received by the system at a location in or near the originating community and then transmitted to the CATV community by microwave or cable, a strong presumption arises that it is a distant signal. The alleged infringer is then under a heavy burden to show that the signal is not a distant signal — that is, that it would be equally receivable off-the-air in the first instance and would project an image of similar quality, if there were substantially similar receiving equipment located in or adjacent to the CATV community. Unless this burden is met, the signal should be deemed a distant signal, and the CATV system would not be within the ambit of Fortnightly with respect to that signal. Similarly, when the signal is initially received by the CATV system on an antenna or other receiving device located between the originating community and the CATV community, the signal should be deemed a distant signal in the absence of a contrary showing by the CATV system. We do not necessarily mean that the antenna or receiving device on which the signal is initially received cannot in any case be located outside the city limits of the community that has franchised the CATV system. We can envision various legitimate circumstances, such as the desire to take advantage of a tall building, hill, or other topographical feature, that might cause the system to desire to locate its antenna or receiving device in an area closely neighboring the community that it serves. Such an antenna placement is not motivated by the desire to be closer to the signal’s point of origin in order to receive it before its strength is dissipated and then to transmit to another location — presumably the motive that ordinarily underlies a system’s decision to locate its antenna outside the community that it serves. Therefore, we would treat such a case in the same manner as those in which the antenna is located within the CATV community. However, we wish to make clear that the distances we envision here are small, and that any system that locates its antenna more than a few miles from the CATV community should bear the burden of showing that the signals it receives and distributes are not in fact distant signals. VI. Conclusion In light of what we have said, we conclude that the CATV systems in New York City and Elmira were properly held not subject to copyright liability. In the case of New York City, it was stipulated that the Teleprompter system did not at any time import distant signals. As to Elmira, although it appears that the system did import and distribute one distant signal from New York City, it is stipulated that none of the programs at issue involving alleged copyright infringement were carried by that station. The remaining stations distributed by the Elmira system were stipulated to have been received by an antenna located on a hill directly neighboring the city, and were thus not distant signals. Therefore, the Elmira system was properly held not subject to copyright liability with respect to programming carried on these signals. On the other hand, the Rawlins CATV system imported five Denver stations from a distance of 184 miles. It was on these Denver stations that the programs at issue were carried. The system received these stations on an antenna located 90 miles from Denver. Therefore, we conclude that these Denver signals were presumptively distant signals and that, in distributing the programs carried on these stations, the Rawlins system “performed” the copyrighted programs and thereby infringed appellants’ copyrights. For the same reason, we hold that the Great Falls system “performed” the copyrighted programs, which were distributed to subscribers through the importation of a signal originating in Spokane, Washington (284 miles from Great Falls) and received by antennas located 55 and 67 miles from Spokane. The Farmington system provides potentially the clearest example of distant signal importation, in that signals originating in Los Angeles, California, 600 miles away, were distributed to subscribers. Only one of the Los Angeles stations broadcast any of the copyrighted programs at issue. Inasmuch as this station was received off-the-air by an antenna located a substantial distance from Farmington and then transmitted to the Farmington CATV system for distribution, it is presumptively a distant signal under our holding, and Teleprompter must be held to have “performed” the copyrighted program. The other alleged infringements relate to programs that were carried by stations located in Albuquerque (144 miles) and Durango, Colorado (43 miles). These signals were received by the CATV system on an antenna located on a mesa 30 miles outside of Farmington. We believe that a distance of 30 miles is too great to sustain an assertion that the antenna is adjacent to the CATV community. Instead, on these facts, we must treat the system as one that has located its antenna outside the CATV community. Thus, in the absence of a contrary showing by Teleprompter, these signals should also be deemed distant signals and the system should be held to have “performed” the copyrighted programs and thereby infringed the copyrights. Of course, each system deemed to have imported distant signals must be afforded an opportunity to show that, although the receiving antenna was located outside the CATV community, the particular signal could have been received in a similar fashion by an equivalent antenna located in or adjacent to the CATV community. We seriously doubt that the Rawlins and Great Falls systems could sustain this heavy burden because of the great distances involved. Similarly, it is doubtful that the Farmington system will be able to make such a demonstration with regard to the Los Angeles station. However, the Farmington system may be in a somewhat better position with regard to its carriage of the Albuquerque and Durango stations. The alleged infringement resulting from this activity concerned programming broadcast by two CBS affiliates — one from Albuquerque and one from Durango. The parties have stipulated that “[p]ursuant to permission granted by CBS and by [the Albuquerque affiliate], the signals [of the affiliate] were rebroadcast [by a translator system] located near Farmington . . . All of the signals embodying the programs as to which infringement by the Farmington CATV is alleged . . . were rebroadcast by these translators.” It was further stipulated that, as a result of these translators, “[t]hese signals . . . could be received by residents of Farmington on rooftop antennas.” From these facts, we conclude, without the need for further showing by Teleprompter, that these Albuquerque stations could have been received by a CATV antenna located within Farming-ton of substantially similar sophistication to that erected on the mesa. Thus, it is clear that the Albuquerque stations were not distant signals, and there is no need to remand to the district court for findings on this point. On the other hand, the stipulation indicated that the signals of the Durango affiliate were not rebroadcast and could not be received by means of rooftop antennas. Thus, if the system is unable to demonstrate that the Durango station is not a distant signal, it must then be regarded as a “performer” of the programming distributed to subscribers on that station. Since the copyrighted programs were distributed to subscribers on both the Albuquerque and the Durango stations, this leads to the conclusion that the Farmington system was a “performer,” and thereby infringed the copyright, when it distributed the programs on the Durango station, but was not a “performer,” and did not infringe, when it distributed the same programs on the Albuquerque station. Although this result is somewhat lacking in symmetry, in the final analysis it will probably result in minimal damages, if any, being imposed on the Farmington CATV system; for we find it hard to see what damages appellants can have sustained, or what profits Teleprompter earned, from the carriage of the Durango broadcasts in light of the system’s simultaneous non-infringing distribution of the programs on the Albuquerque CBS affiliate. By the simple turn of a knob, the viewers who saw the programs on the Durango station could have viewed them, as a result of the efforts of the same CATV system, on the Albuquerque station. However, we think that, unless the Durango station is shown not to have been a distant signal, there was at least a technical infringement of the copyright with regard to that station. Accordingly, in light of our disposition of the issues on this appeal, we affirm the district court’s holding that Teleprompter’s Elmira and New York City CATV systems did not infringe appellants’ copyrights; we reverse the district court’s decision with regard to Teleprompter’s Rawlins, Great Falls, and Farmington CATV systems, without prejudice, however, to Teleprompter to proceed in the district court within a reasonable time to show that any of these systems did not in fact import distant signals; and we remand to the district court for further proceedings, including the determination of damages, as are not inconsistent with this opinion. The complex problems presented by the issues in this case are not readily amenable to judicial resolution. As the Supreme Court said in Fortnightly, “[w]e [must] take the Copyright Act of 1909 as we find it,” and do the best we can. We hope that the Congress will in due course legislate a fuller and more flexible accommodation of competing copyright, anti-trust, and communications policy considerations, consistent with the challenges of modern CATV technology. Affirmed in part and reversed and remanded in part. . The original action was commenced on December 11, 1964. Attempts to consolidate this action witli United Artists Television v. Fortnightly, 255 F.Supp. 177 (S.D.N.Y.1966), aff’d 377 F.2d 872 (2d Cir. 1967), rev’d 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968), in the district court were unsuccessful. The parties voluntarily stayed proceedings in this case while Fortnightly was on appeal. After the Fortnightly decision, supplemental complaints were filed on December 15, 1969 and May 17, 1971. . Appellants claim to have been injured because Teleprompter’s CATV systems distributed signals of stations carrying the copyrighted programs to viewers who could not otherwise have received them. When a CATV system brings a program into its market from a more distant television market, appellants assert that this has a serious adverse impact on the copyright holder’s ability to license that program for later presentation in the importing market. We have been informed by one of the amici that a copyright holder usually licenses his programs first to a network and later to local stations for broadcast. The larger markets are ordinarily licensed first because of the greater demand caused by competition among the more numerous broadcast stations in those markets. We are told that if a CATV system brings into the smaller markets programs that are broadcast by network or independent stations in the larger markets, it reduces the potential audience for that program when it is later licensed for exhibition by a local station. As a result, the fee that the station in the smaller market is willing to pay for the right to broadcast the program will diminish, appellants assert, to the injury of the copyright holder. Teleprompter has argued that the copyright holder can demand a greater fee from the broadcast station in the larger market in light of the greater audience that will now view the programs as a result of CATV. However, appellants have responded, and we must agree, that the amount that a broadcast station is willing to pay for the privilege of exhibiting a copyrighted program is economically tied more to the fees that advertisers are willing to pay to sponsor tlie program than to some projected audience size. No evidence was presented in the court below to show that regional or local advertisers would be willing to pay greater fees because the sponsored program will be exhibited in some distant market, or that national advertisers would pay more for the relatively minor increase in audience size that CATV carriage would yield for a network program. Indeed, economics and common sense would impel one to an opposite conclusion. . By pre-trial order, the trial of this case was divided into separate stages. The first stage, on appeal here, concerned the issue of whether or not Teleprompter had infringed appellants’ copyrights. . “Any person entitled thereto, upon complying with the provisions of this title, shall have the exclusive right: (c) To deliver, authorize the delivery of, read, or present the copyrighted work in public for profit if it be a lecture, sermon, address or similar production, or other nondramatic literary work; to make or procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, delivered, presented, produced, or reproduced; and to play or perform it in public for profit, and to exhibit, represent, produce, or reproduce it in any manner or by any method whatsoever . . . and (d) To perform or present the copyrighted work publicly if it be a drama or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced or reproduced; and to exhibit, perform, represent, produce, or reproduce it, in any manner or by any method whatsoever . . .” . The term, “off-the-air,” will be used throughout this opinion to indicate the reception of broadcast television signals by means of an antenna or similar receiving equipment. We use the term, “broadcast,” in accordance with the definition given to “broadcasting” in 47 U.S.C. § 153 (o). Thus, “off-the-air” reception does not include the reception of microwave transmission. See note 6, infra. . A microwave link involves the transmission of signals through the air. However, microwave transmission in itself is not broadcasting. A broadcast signal, according' to 47 U.S.C. § 153(o), is transmitted by a broadcaster for “ f reception] by the public.” In the case of microwave, the signal is focused and transmitted in a narrow beam aimed with precision at the receiving points. Thus, microwave transmission is point-to-point communication. The receiving antenna must be in the patli of the signal beam. If the transmission must cover a considerable distance, the microwave signal is transmitted to the first receiving point from which it is re-transmitted to another receiving point, and this process is repeated until the signal reaches the point from which it is distributed by cable to subscribers. . A “translator” is a television broadcast translator station that is authorized to rebroadcast a specific station’s signals. . Teleprompter has not attempted to show that this letter agreement amounts to an authorization or license for its carriage of the copyrighted programs. The parties stipulated that no such authorization or license was requested or received. . This consisted of an automated camera that scanned clock and weather dials. . A “non-broadcast channel,” as used in this opinion, is a channel that offers a CATV system’s own original programming but does not offer programs received from broadcast stations. . See Fortnightly Corp. v. United Artists, Inc., 392 U.S. 390, 392 n. 6, and 399 n. 25, 88 S. Ct. 2084, 20 L.Ed.2d 1176 (1968). . Note 11, supra. . The Federal Communications Commission has adopted rules, which appear in 47 C.F.R. § 76.201, requiring CATV systems with more than 3,500 subscribers to commence program origination, which is known in industry parlance as “cablecasting.” These rules were suspended pending judicial review of the FCC’s CATV rules. Although FCC authority over CATV was sustained in United States v. Midwest Video, 406 U.S. 649, 92 S.Ct. 1860, 32 L.Ed.2d 390 (1972), the FCC has not yet reinstated the rules. . Although we consider them separately, the use of microwave and the importation of distant signals are often very closely connected, in the sense that microwave links are the usual means by which a OATV system imports distant signals. As is evident from the experience of the Xew York system, however, it is possible for microwave to be used apart from distant signal importation, and it is in this sense that we consider in this section of the opinion the effect of microwave on the application of Fortnightly to CATY systems. . This was phrased in terms of the Grade B contour, which marks the boundary along which acceptable reception of the signal is expected to be available 90 percent of the time at the best 50 percent of the locations. Sec 47 C.F.R. §§ 73.683 and 73.684. With respect to locations outside its Grade B contour, a signal was considered a “distant signal” by the FCC. Recently the FCO has promulgated regulations that give a broader definition of distant and local signals for purposes of the signal-carriage requirements of CATV systems. 47 C.F.R. §§ 76.59, 76.61, and 76.63. See 37 Fed.Reg. 3263 (Feb. 12, 1972). . The franchise represents a grant to the CATV system of authority to run its cables through the public streets and facilities of a city, town, or county to the homes of its subscribers. Almost 5,000 such franchises have already been granted, with the number continuing to increase. See Barnett, State, Federal and Local Regulation of Cable Television, 47 Notre Dame Lawyer 681,702 (1972). Although the franchises have for the most part been issued by local autiiorities such as cities and towns, at least five states (Connecticut, Nevada, Rhode Island, Vermont, and Hawaii) have in effect laws subjecting CATV to state regulation, and more appear to be in the process of enacting such state regulatory schemes (e. g., Massachusetts, Illinois, New York and New Jersey), probably because of the disadvantages associated with local as compared with state regulation, id. at 698-708. Hence it may be anticipated that some state agencies may, as part of their new regulatory schemes, create local franchise areas or regions within the state based upon community of interest and population concentrations, as has been done by Connecticut. Id. 701-02. As used by us, the term “CATV community” is limited strictly to the specifically designated local area for which the franehise is granted by the state or local authority, which may not be expanded or enlarged by interconnection, merger of two or more franchised areas, or other means. We do not have before us, and thus do not consider, the hypothetical case in which the area for which the franchise is granted is not local, but state-wide or comprising a broad region. We are aware of no such franchises presently granted or under consideration. For the moment, we can say that the “CATV community” we envision is essentially a local entity, the parts of which share substantial common interests. . By “relay or retransmittal,” we do not mean the authorized rebroadcast of the signal by a translator station, or the like. See note 19, infra, and accompanying text, where we indicate that the mere use of a translator does not, without more, make the signal a “distant signal,” as that term is used in this opinion. It should bo noted that microwave transmission, in the context of CATV distant-signal importation, does not constitute a broadcast or a rebroadcast. “Broadcasting” is defined at 47 U.S.C. § 153 (0) as “the dissemination of radio communications intended to be received by the public, directly or by the intermediary of relay stations.” . Teleprompter lias argued that it is insulated from copyright liability by a license implied in law. This court explicitly rejected this argument in our Fortnightly decision. United Artists, Inc. v. Fortnightly Corp., 377 F.2d 872, 880-884 (2d Cir. 1967), rev’d. 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968). The Supreme Court in Fortnightly refused to embrace this argument when it rejected the Solicitor General’s proposed compromise resolution of that case, although it did not necessarily reject this lino or reasoning. See 392 U.S. 401-402, 88 S.Ct. 2084. Teleprompter argues that the terms of our decision on this issue in Fortnightly would not necessarily apply to the facts presented by three of the five GATV systems involved here — Elmira, New York City, and Farmington. In light of our resolution of this case, we need not deal with this contention with regard to the Elmira and New York City systems. As to the Farmington system, our decision with regard to the Albuquerque stations obviates the necessity to consider the license-implied-in-law issue. See Part IV, ■infra. On the matter of the Durango station, see note 20, infra. In other respects, we decline to re-examine our prior decision on this issue in Fortnightly. . Although these signals were receivable because they were rebroadcast by translators, our earlier statement of the governing standard, “that any signal capable of projecting, without relay or transmittal, an acceptable image that can be reached off-the-air ... by means of an antenna . . . erected in or adjacent to the CATV community is not a distant signal,” does not make the Albuquerque stations distant signals. We were not referring to an authorized rebroadcast of the signal. . Wo do not believe that the carriage of the Durango stations falls within our reservation of decision in Fortnightly on the issue of license implied in law, since the Durango station’s broadcasts were not receivable off-the-air by means of rooftop antennas in Farmington. See 377 F.2d at 884.

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John A. HILBERT, III, Petitioner, v. The Honorable John F. DOOLING, Jr., in his capacity as United States District Judge for the Eastern District of New York, Respondent. No. 423, Docket 72-2144. United States Court of Appeals, Second Circuit. Argued Nov. 1, 1972. Decided March 12, 1973. Phylis Skloot Bamberger, New York City (Robert Kasanof, The Legal Aid Society, New York City, of counsel), for petitioner. Raymond J. Dearie, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. N. Y., L. Kevin Sheridan, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for respondent. Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y. (Richard J. Davis, John W. Nields, Jr., Asst. U. S. Attys., New York City, of counsel), for U. S. Atty., S. D. N. Y., as amicus curiae. Before FRIENDLY, Chief Judge, and KAUFMAN, HAYS, FEINBERG, MANSFIELD, MULLIGAN, OAKES and TIMBERS, Circuit Judges. MANSFIELD, Circuit Judge: The question raised by this petition for a writ of mandamus is whether dismissal of a criminal charge pursuant to Rule 4 of our Second Circuit Rules Regarding Prompt Disposition of Criminal Cases (hereinafter “Prompt Disposition Rules”) is with prejudice and thus precludes reindictment for the same offense. Because of the exceptional importance of the issue at the time when the petition was filed, we heard the petition en banc. See F.R.App.P. Rule 35(a)(2). We conclude that such a dismissal is with prejudice and that mandamus is the appropriate remedy in this case. Accordingly we order the writ granted and .the second indictment dismissed. On August 5, 1971, the petitioner, John A. Hilbert, III, and one Bruce A. Turnbull, were arrested by agents of the United States Customs Service. The government contends that at the time of their arrest, Hilbert and Turnbull were in possession of two cartons containing approximately 12 kilograms of marijuana which had allegedly been imported into the United States at Kennedy Airport from Jamaica, West Indies. The two cartons were delivered under government control to a house which was then placed under surveillance. The defendants were arrested a short time after they were observed leaving the house and placing the packages in a car. Neither defendant was incarcerated. On February 3, 1972, two days before the expiration of the six-month deadline by which the government was required by Rule 4 to be ready for trial, an indictment (the “First Indictment”) was filed charging Hilbert with possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841 and 18 U.S. C. § 2. February 17, 1972 was then fixed for the arraignment, at which the defendants pleaded not guilty. On March 10, 1972, at a pretrial conference before Judge Dooling, the defendants moved for the dismissal of the indictment for failure to comply with Rule 4. Six days later, and over seven months after the arrests, the United States Attorney filed a notice of readiness. In a memorandum and order dated March 22, 1972, Judge Dooling, finding the government not ready for trial within six months from the date of arrests and finding none of Rule 5’s exclusions applicable, granted the motion to dismiss. On May 30, 1972, the grand jury handed down a “superseding” indictment charging the petitioner with the same offense. The defendants moved for the dismissal of this second indictment on the ground, among others, that Rule 4 precluded reindictment. On June 14, 1972, Judge Dooling denied the motion, holding that a new six-month period commenced as of May 30, 1972, the date of the second indictment. It was with respect to this order that Hilbert petitioned this Court for a writ of mandamus pursuant to F.R.App.P. Rule 21 and 28 U.S.C. § 1651. The Prompt Disposition Rules were adopted pursuant to our supervisory power and 28 U.S.C. § 332. The Rules are designed to alleviate the problems of delay in criminal cases by setting standards stricter than the minimum period prescribed by the applicable statute of limitations or required by the Sixth Amendment. See Statement of the Circuit Council to Accompany Second Circuit Rules Regarding Prompt Disposition of Criminal Cases. However, the Rules do not mandate trial within a specified period of time, as has been urged by some. See, e. g., American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial 40 (1968). Instead, we have taken a more moderate course, focusing primarily on prevention of prosecutorial delay as a means of implementing the public interest in disposition of criminal charges with reasonable dispatch. Rule 4 provides that “the government must be ready for trial within six months from the date of the arrest, service of summons, detention, or the filing of a complaint or of a formal charge whichever is earliest. If the government is not ready for trial within such time, or within the periods as extended by the district court for good cause under rule 5, . the charge shall be dismissed.” (Emphasis added). The onus on the prosecution is somewhat alleviated by Rule 5, which authorizes the district court to grant extensions of the six-month period where justified by reason of such circumstances as other “proceedings concerning the defendant,” the unavailability of material evidence, the unavailability of the defendant, or “[o]ther periods of delay occasioned by exceptional circumstances.” However, the government is put on notice that if it does not comply with the Rules, which provide ample leeway for the legitimate needs of preparing a prosecution, it will be foreclosed from proceeding with the prosecution. In summary, the Rules are designed to require the government to be ready to try cases promptly, subject to certain types of delay generally recognized as arising from legitimate or unavoidable causes. The purpose of Rule 4 is to insure that regardless whether a defendant has been prejudiced in a given case or his constitutional rights have been infringed, the trial of the charge against him will go forward promptly instead of being frustrated by creeping, paralytic procedural delays of the type that have spawned a backlog of thousands of cases, with the public losing confidence in the courts and gaining the impression that federal criminal laws cannot be enforced. Although Rule 4, in providing that the “charge shall be dismissed” whenever the government is not ready for trial within the six-month period as extended, does not state explicitly that the dismissal shall be “with prejudice,” our intent to mandate such a dismissal is readily apparent from the language, purpose and internal logic of the Prompt Disposition Rules. The use of the imperatives “must” and “shall” and of the word “charge” manifest an intent not only that the dismissal be mandatory but that it have a binding effect. If the Council had intended to give district courts the discretionary power to dismiss with or without prejudice, it would have used permissive language of the type found in Rule 48(b) of the F.R.Cr.P., which provides in pertinent part that “[T]he court may dismiss the indictment, information or complaint” (emphasis added) and, like F.R.Cr.P. 48, it would have referred to the document containing the charge, i. e., the indictment, rather than use the more inclusive term “charge.” Cf. F.R.Cr.P. Rules 3 and 7(c). Our intent is further manifested by the overall structure of the Prompt Disposition Rules, which specify a gamut of exceptions under which the six-month period could be extended. This detailed and painstaking delineation would have been largely fruitless if the sole sanction for non-compliance were a dismissal which did not preclude reindictment. As the Statement of the Circuit Council to Accompany Second Circuit Rules Regarding Prompt Disposition of Criminal Cases provides: “If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defend- “The public interest requires disposition of criminal charges with all reasonable dispatch. The deterrence of crime by prompt prosecution of charges is frustrated whenever there is a delay in the disposition of a case which is not required by some good reason. The general observance of law rests largely upon a respect for the process of law enforcement. When the process is slowed down by repeated delays in the disposition of charges for which there is no good reason, public confidence is seriously eroded.” ant who lias been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information, or complaint.” If the government were permitted to re-indict after a Rule 4 dismissal, our Prompt Disposition Rules would for the most part be rendered a dead letter, since the government would have less incentive to push forward to trial. Moreover, if reindictment were permitted, the defendant in some instances might actually be placed in a worse position by the Prompt Disposition Rules than if they had not been adopted. Under preexisting procedures he would continue to face trial in the single pending proceeding, represented by the same trial counsel and having the benefit of expenses incurred for one bail bond and one lawyer. Reindictment, on the other hand, would start a new proceeding, which could result in a second arrest, necessitating the retention of new legal counsel, the posting of a new bond, and other steps, all at a further cost in terms of money, time and psychological distress. Cf. Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). The instant case is illustrative. Judge Dooling, by permitting reindictment and by finding that Rule 4’s six-month period ran from the date of the reindictment, May 30, 1972, in effect allowed the government at least 16 months from the date of the original arrest to be ready for trial and concomitantly placed the defendants in the position of risking duplicative expenses and protracted fear not only of the second prosecution but of the possibility of a third case if the court should dismiss the second indictment for failure of the government to be ready according to the Prompt Disposition Rules. Such a result certainly clashes with the underlying purposes of those Rules. Our view that dismissal without prejudice would seriously undermine the Rules is shared by the American Bar Association’s Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial, 40-41 (1968), which states “that the only effective remedy for denial of speedy trial is absolute and complete discharge. Prosecutors who are free to commence another prosecution later have not been deterred from undue delay.” The government suggests that the Circuit Council is powerless to promulgate a rule having the effect of mandating dismissal with prejudice because of the government’s non-readiness within six months plus such extensions as are granted by the district court. We disagree. Title 28 U.S.C. § 332 provides in pertinent part: “Each judicial council shall make all necessary orders for the effective and expeditious administration of the business of the courts within its circuit. The district judges shall promptly carry into effect all orders of the judicial council.” The genesis of § 332 was “an Act to provide for the administration of the United States courts. . . . ” Ch. xv, § 306, 53 Stat. 1223, 1224 (Aug. 7, 1939). Under the guidance of Chief Justice Groner of the Court of Appeals for the District of Columbia Circuit, a Committee of the Judicial Conference, working with a committee appointed by the Attorney General, drafted the 1939 bill, S. 188, which was subsequently enacted by Congress with minor modifications. Report on the Powers and Responsibilities of the Judicial Councils, H.R.Doc.No.201 at 4, 87th Cong., 2d Sess. (1961) (hereinafter “1961 Report”). That bill was designed to provide the newly established Judicial Councils with the tools needed to deal effectively with such problems as judicial delay. Chief Justice Groner emphasized in his testimony presenting the bill to the Senate Committee on the Judiciary that: “[T]he criticism of the courts is due to delay. . “Those matters this bill undertakes to provide for by outlining certain duties of the judicial council. Under the present judicial set-up we have no authority to require a district judge to speed up his work or to admonish him that he is not bearing the full and fair burden that he is expected to bear, or to take action as to any other matter which is the subject of criticism. . “The bill also provides what is not now true, that it shall be the duty of the district judges, when admonished or when matters are otherwise brought to his attention by the judicial council, to take ivhatever steps are thought to be necessary to correct those things which ought not to exist in a well run judicial system.” S. Rep.No.426, 76th Cong., 1st Sess. (1939) (emphasis added). This statement by one of the principal drafters of the bill, made at a hearing of the Senate Committee which originated the legislation, is entitled to considerable weight. Cf. SEC v. Robert Collier & Co., 76 F.2d 939, 941 (2d Cir. 1935). The view that the powers of § 332 were intended to be expansive was echoed by Congressman Emanuel Celler, former Chairman of the Committee of the Judiciary of the House, who was a conference committee member and a manager at the time of the original enactment and by a group of distinguished jurists who, after conducting a study of the powers of the Judicial Councils, concluded that “the responsibility of the councils ‘for the effective and expeditious administration of the business of the courts within its circuit’ extends not merely to the business of the courts in its technical sense (judicial administration), such as the handling and dispatching of cases, but also to the business of the judiciary in its institutional sense (administration of justice), such as the avoiding of any stigma, disrepute, or other element of loss of public esteem and confidence in respect to the court system. . . . ” 1961 Report, supra at 8-9. The text of § 332 corroborates the legislative history and purpose of the Act. Former Chief Judge Lumbard accurately characterized the statute when he said “As this language is about as broad as it could possibly be, there is no doubt that Congress meant to give to the eouncils the power to do whatever might be necessary more efficiently to manage the courts and administer justice,” Lumbard, The Place of the Federal Judicial Councils in the Administration of the Courts, 47 A.B.A.J. 169 (1961) (emphasis added). Similarly Chief Justice, then Judge, Burger, deploring the councils’ failure to use their powers, noted that § 332 is “all-embracing and confer [s] almost unlimited power. Any problem — whatever it may be — relating to the expeditious and effective administration of justice within the circuit is within the power of the Circuit Judicial Council.” Proceedings of the Attorney General’s Conference on Court Congestion and Delay in Litigation 58 at 59-60 (1958). Thus Congress’ intent, as manifested by both the language and history of the act, was to give the Councils broad powers to deal with the evil of judicial delay. Our Prompt Disposition Rules, following § 332’s mandate, have attempted to attack this problem, with an effective sanction, i.e., dismissal with prejudice for tardy prosecutorial behavior. Although Rule 4 and Rule 48(b), F.R. Cr.P., deal with the same general subject matter — the court’s power to dismiss for delay — we do not find any inconsistency between the two rules. Rule 48(b), which provides for dismissal by the court “ [i] f there is unnecessary delay. . . .,” is merely a restatement of “the inherent power of the court to dismiss a case for want of prosecution,” Committee Note to Rule 48, 8A Moore’s Federal Practice if 48.01. Dismissal under Rule 48 may be without prejudice, see, e.g., Mann v. United States, 113 U.S.App.D.C. 27, 304 F.2d 394, cert. denied, 371 U.S. 896, 83 S.Ct. 194, 9 L.Ed.2d 127 (1962)—or it may be with prejudice, see, White v. United States, 126 U.S.App.D.C. 309, 377 F.2d 948 (1967)—indeed it must be with prejudice where it is on Sixth Amendment grounds or where prosecution is barred by the statute of limitations. Our Speedy Trial Rules merely flesh out the skeleton of Rule 48, giving content to the sweeping phrase “unnecessary delay” by substituting a more precise, albeit still flexible, six-month rule. Having spelled out in detail the conditions for dismissal with prejudice, the need for discretionary power to dismiss without prejudice ceases to exist where such conditions are met. Nor does Rule 4 deprive the district court of discretion except under circumstances where, in the Council’s opinion, it would be an abuse of discretion not to dismiss with prejudice. The district court retains the power to determine in its discretion whether the period within which the government must be ready should be extended beyond six months for any one or more of the reasons specified in Rule 5; and pursuant to Rule 48(b) the 'district judge may still decide that unless the government in exceptional cases is ready to proceed to trial in less than six months, the indictment will be dismissed without prejudice to reindictment. Thus nothing in Rule 48(b) implies that it is the exclusive source of the court’s power to dismiss an indictment because of delay or that it precludes mandatory dismissal with prejudice under specified circumstances. Indeed, dismissal with prejudice is required by the Sixth Amendment where the delay is of constitutional proporRule 48(b), therefore, merely confirms the court’s general power in the area. tions. The cases suggesting a contrary conclusion are distinguishable and do not rule out discretionary dismissals with prejudice under circumstances falling short of constitutional or statute of limitation infirmities. In Mann v. United States, 113 U.S.App.D.C. 27, 304 F.2d 394, cert. denied, 371 U.S. 896, 83 S.Ct. 194, 9 L.Ed.2d 127 (1962), the government itself raised the possibility of a dismissal (which suggests that the dismissal was pursuant to Rule 48(a) not Rule 48(b)), and as most of the delay was of the defendant’s “own making,” the trial court “clearly expressed its intent to award the dismissal without prejudice to further prosecution should the government later uncover the missing evidence.” 304 F.2d at 397. See United States v. Chase, 372 F.2d 453, 463-464 (4th Cir.), cert. denied, 387 U. S. 907, 87 S.Ct. 1688, 18 L.Ed.2d 626 (1967), which also arose under Rule 48(a). Although some of the language in United States v. Apex Distributing Co., 270 F.2d 747, 750-751 (9th Cir. 1959) (en banc), where dismissal was based on the government’s failure to comply with pretrial discovery orders, appears to reject dismissal with prejudice except in instances when reindictment is barred by the statute of limitations (or, presumably, by the Sixth Amendment) the context is entirely distinguishable since the court there had no occasion to consider the effect of detailed rules of the type here under consideration, which give the government fair and reasonable notice of the consequences of its non-readiness. Although Chief Judge Friendly in United States v. DiStefano, 464 F.2d 845 (2d Cir. 1972), which held that the dismissal of the indietment there pursuant to Rule 48(b) was not appealable by the government under a specific jurisdictional statute, stated that the dismissal did not “bar” another prosecution, it does not appear that the district court had purported to dismiss with prejudice. Furthermore the court found “nothing in the colloquy to suggest” that the dismissal was pursuant to Rule 4 of our detailed Prompt Disposition Rules, which is the issue here under consideration. There remains the question of whether mandamus is the appropriate form of relief. We conclude that it is. “The peremptory writ of mandamus has traditionally been used in the federal courts only ‘to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’ Roche v. Evaporated Milk Assn., 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943).” Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967); see DeBeers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 89 L.Ed. 1566 (1945); United States v. Dooling, 406 F.2d 192 (2d Cir.), cert. denied, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224 (1969); United States v. Weinstein, 452 F.2d 704 (2d Cir. 1971), cert. denied, 406 U.S. 917, 92 S.Ct. 1766, 32 L.Ed.2d 116 (1972); cf. Note, Supervisory and Advisory Mandamus Under the All Writs Act, 86 Harv.L.Rev. 595, 622 (1973). As we have found that Rule 4 of our Prompt Disposition Rules mandates dismissal with prejudice, the district judge was without power to deny the motion to dismiss the second indictment. Unlike the situation in Will v. United States, supra, where mandamus sought by the government was denied, the Court noting that the delay occasioned by piecemeal review could affeet “the constitutional precepts that a man is entitled to a speedy trial and that he may not be placed twice in jeopardy for the same offense,” 389 U.S. at 98, here the denial of the writ, by allowing the second indictment to stand, would jeopardize these important rights. The petition for writ of mandamus is granted and the district court is directed to dismiss with prejudice the second indictment of the petitioner. FRIENDLY, Chief Judge (dissenting) : However desirable the result reached by the majority may be from a policy standpoint, I cannot agree that either 28 U.S.C. § 332 or the inherent supervisory power of a court of appeals authorizes a judicial council to direct by rule how a district judge shall exercise his discretion in determining whether dismissal of an indictment shall be with or without prejudice. The legislative history of § 332, recited in my brother MANSFIELD’s excellent opinion, has an import to me just the opposite of what it has to the majority. I agree that § 332 gives the judicial council a plenitude of powers with respect to the administration of the district courts, not only over the work of individual judges but over the courts themselves. However, Chief Justice Groner’s reference to the then lack of authority “to require a district judge to speed up his work or to admonish him that he is not bearing the full and fair burden that he is expected to bear, or to take action as to any other matter which is the subject of criticism” cannot fairly be expanded, without unduly defying the principle of ejusdem generis, to telling a district judge that he must invariably exercise his judicial discretion with respect to the effect of the dismissal of an indictment in a particular way. The majority’s reading also seems to me to put more weight on the very general remarks of Representative Celler, twenty-two years after § 332 was enacted, than they can fairly bear. The action of our Judicial Council in fleshing out F.R.Cr.P. 48(b) by giving specific content to the phrase “unnecessary delay” seems to me to have gone to the verge of its power under § 332. I can find no basis for taking the further step of holding that Congress meant to empower a judicial council to adopt a rule that would withdraw the district judge’s discretion, admittedly afforded by Rule 48(b), to dismiss either with or without prejudice as he deemed appropriate. While refusal to dismiss with prejudice in a particular case may be an abuse of discretion, the remedy for this is not mandamus, Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967), but appeal from a conviction on a new indictment if conviction there would be. I should have written in greater depth save for the fact that, with the adoption of F.R.Cr.P. 50(b) and of district court rules for the prompt disposition of criminal cases thereunder, the power of the Judicial Council to direct dismissal with prejudice for violation of its Rules for the Prompt Disposition of Criminal Cases will now be academic for the future. Rule 50(b) clearly empowers a district court, with the approval of the reviewing panel, to provide that dismissal shall be with prejudice, as has now been done. However, it is worth noting that Rule 4 of the district court rules which have been approved in our circuit, see fn. 2 to the majority opinion, affords a measure of flexibility not contained in the Second Circuit Rules for the Prompt Disposition of Criminal Cases, which, having well served the important purpose that led to their adoption, have now been repealed on the effective date of the new district court rules. I would deny the writ. . Rule 4 provides : “4. In all cases the government must be ready for trial within six months from the date of the arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest. If the government is not ready for ti'ial within such time, or within the periods as extended by the district court for good cause under rule 5, and if the defendant is charged only with non-capital offenses, then, upon application of the defendant or upon motion of the district court, after opportunity for argument, the charge shall be dismissed.” . The importance of the issue has been somewhat diminished as a result of the recent adoption by the various district courts within the Second Circuit of new rules for the prompt disposition of criminal cases pursuant to Rule 50(b), F.R.Cr.P., which became effective on October 1, 1972. These local rules specify in more detail the circumstances under which a charge is to be dismissed with prejudice. Our decision, therefore, governs only those dismissals during the period from July 5, 1971, when the Prompt Disposition Rules went into effect, to April 1, 1973, when the new local district court rules become effective. . The First Indictment contained two counts. The first count charged both Hilbert and Turnbull with willful possession of marijuana, a violation of 21 U.S.C. § 841, and 18 U.S.C. § 2. The second count separately charged Turnbull with unlawful importation of marijuana (in violation of 21 U.S.C. § 952(a) and 18 U.S.C. § 2). . Rule 5 of the Prompt Disposition Rules provides: “In computing the time within which the government should be ready for trial [the following periods should be excluded by the district court] : “(a) The period of delay while proceedings concerning the defendant are pending. . “(b) The period of delay resulting from a continuance granted by the district court at the request of, or with the consent of, the defendant or his counsel. “(c) The period of delay resulting from a continuance granted at the request of a prosecuting attorney if: (i) the continuance is granted because of the unavailability of evidence material to the government’s ease. “(d) The period of delay resulting from the absence or unavailability of the defendant. . “(e) A reasonable period of delay when the defendant is joined for trial with n. codefendant as to whom the time for trial has not run and there is good cause for not granting a severance. “(f) The period of delay resulting from detention of the defendant in another jurisdiction. “(g) The period during which the defendant is without counsel for reasons other than the failure of the court to provide counsel for an indigent defendant or the insistence of the defendant on proceeding without counsel. “(h) Other periods of delay occasioned by exceptional circumstances.” . The second indictment included three counts. The first two counts were essentially the same as their ' corresponding number in the first indictment. See note 3 supra. The third count charged Turnbull with conspiracy under 21 U.S.C. §§ 846 and 963, in violation of 21 U.S.C. § 841 (a) (1) and § 952 (a). As to petitioner, Hilbert, the indictments were identical. As to defendant Turnbull, though we need not decide the issue, the addition of a conspiracy count based on essentially the same transaction would not appear to be legally significant for the purpose of determining whether the charge should be dismissed under Rule 4 of the Prompt Disposition Rules. . Rule 48(b) of F.R.Cr.P., dismissal by court, provides: . Nothing we have said should be construed as precluding reindictment when there have been extraordinary circumstances such as fraud upon the court in obtaining the dismissal, suppression of evidence by a defendant, or the like, which would warrant an extension of time. . For a detailed delineation of the legislative history of 18 U.S.C. § 332, see Chandler v. Judicial Council, 398 U.S. 74, 89-129, 90 S.Ct. 1648, 26 L.Ed.2d 100 (Harlan, J., concurring). As of the 1948 Amendment, § 332, 62 Stat. 869, 902 (June 25, 1948), the provision was largely in its present form with subsequent amendments limited to language and syntactical modification. . Congressman Celler stated: “[I] know it was the intention of the Congress to charge the judicial councils of the circuits with the responsibility for doing all and whatever was necessary of an administrative character to maintain efficiency and public confidence in the administration of justice.” Forward, 1961 Report, supra at v. . The Special Committee to study the Powers of the Judicial Councils arose from the September 1960 Judicial Conference. The Committee consisted of Chief Judge Harvey M. Johnsen of the Eighth Circuit, Chairman; Chief Judge J. Edward Lumbard of the Second Circuit; Circuit Judge Richard T. Rives of the Fifth Circuit ; Chief Judge Royce H. Savage of the Northern District of Oklahoma and Chief Judge Roszel C. Thomsen of the District of Maryland. The Judicial Conference, after a few modifications, adopted the report at its session of March 13-14, 1961. . Rule 48(a) of the F.R.Cr.P. which deals with dismissals by the attorney for the government provides : “The Attorney General or the United States Attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant.” . Title 28, § 1051(a) provides: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of tlieir respective jurisdictions and agreeable to the usages and principles of law.”

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UNITED STATES ex rel. George WHITMORE, Jr., Relator-Appellant, v. Bernard J. MALCOLM, New York City Commissioner of Correction, et al., Respondents-Appellees. No. 286, Docket 72-1706. United States Court of Appeals, Second Circuit. Argued Oct. 27, 1972. Decided Jan. 22, 1973. Rehearing En Banc Granted March 1, 1973. Order April 23, 1973. Myron Beldock, New York City (Beldock, Levine & Hoffman, New York City, and Arthur H. Miller, Brooklyn, N. Y., of counsel), for relator-appellant. Hillel Hoffman, Asst. Atty. Gen. of New York, New York City (Louis J. Lefkowitz, Atty. Gen. of New York, and Samuel Hirshowitz, Asst. Atty. Gen., New York City, of counsel), for respondents-appellees. Aaron Nussbaum, Asst. Dist. Atty., Brooklyn, N. Y., as amicus curiae for the People of State of New York. Before MOORE, HAYS and MULLIGAN, Circuit Judges. MOORE, Circuit Judge: This is an appeal from an order of the United States District Court for the Eastern District of New York, Hon. Walter Bruchhausen, Judge, entered on May 31, 1972, which denied without a hearing appellant’s petition for a writ of habeas corpus. We affirm the order of the District Court. I. In November, 1964, George Whitmore, Jr., was tried by a jury in Kings County, New York, and convicted of the crimes of attempted rape in the first degree and assault in the second degree. The trial justice set aside this conviction because of jury misconduct and widespread unfavorable publicity. People v. Whitmore, 45 Misc.2d 506, 257 N.Y.S.2d 787 (Sup.Ct.1965). Whitmore was tried a second time on these same charges in May, 1966. He was again convicted. This conviction was set aside by the Appellate Division of the Supreme Court of the State of New York because the defense had been improperly limited in its cross-examination regarding Whitmore’s confession. People v. Whitmore, 27 A. D.2d 939, 278 N.Y.S.2d 706 (1967). On May 15, 1967, Whitmore was again tried for these crimes. The jury found him guilty, and on June 8, 1967, he was sentenced to concurrent terms of five to ten years for attempted rape and two and one-half to five years for assault. This conviction was appealed. The Appellate Division remanded the matter to the trial court for a hearing to determine whether the identification of Whitmore by the victim of the assault had been tainted by an improper show-up identification at the police station. People v. Whitmore, 30 A.D.2d 877, 293 N.Y.S.2d 712 (1968). This hearing, like the trial, was held before Justice Helfand, Supreme Court, Kings County. After an extensive hearing the court concluded that the in-court identification of Whitmore by the complainant had been independent of the improper police station show-up and that this in-court identification could have been made without the objectionable procedure at the station. While his appeal from this conviction was still pending in the Appellate Division, Whitmore moved in the trial court to dismiss the indictment or for a new trial based on newly discovered evidence. On December 30, 1969, the trial justice denied this application because he believed this “newly discovered evidence” had been available to Whitmore prior to his third trial and that it would not have affected the verdict of the jury in any case. The Appellate Division affirmed Whitmore’s conviction and the orders of the court denying his motion to suppress the identification testimony and his application for a new trial. People v. Whitmore, 35 A.D.2d 607, 313 N.Y.S.2d 433 (1970). The New York Court of Appeals affirmed Whitmore’s conviction in a four to three decision. 28 N.Y.2d 826, 322 N.Y.S.2d 65, 270 N.E.2d 893, (1971). The Supreme Court denied certiorari. 405 U.S. 956, 92 S.Ct. 1180, 31 L.Ed.2d 233 (1972). Whitmore filed a petition for a writ of habeas corpus in the Eastern District of New York five years after his third trial and conviction and eight years after the crime had been committed. His petition sought release on bail pending determination of his case and asserted violations of constitutionally guaranteed rights. The District Court heard argument of appellant’s claims, refused to hold an evidentiary hearing, and dismissed the petition. A certificate of probable cause was denied by the District Court; such certificate was granted by this Court on July 18, 1972; appellant’s application for bail pending appeal was denied. II. A brief account of the facts is required to understand appellant’s claims and our disposition of this appeal. Shortly after midnight, April 23, 1964, Mrs. Elba Borrero was assaulted as she returned home from work. Her attacker grabbed her from behind and forced her into an alley. Before the attacker could carry out his expressed intention of killing and raping her, Patrolman Isola of the New York City Police Department arrived and broke up the attack. Officer Isola chased the perpetrator and'fired four shots at him, but was not able to apprehend him. Isola’s official police report, his personal notebook, and the first alarm given to police radio cars described Mrs. Borrero’s attacker as a male Negro, twenty to twenty-five years old, five feet nine inches tall, weighing 165 pounds. About 7:00 A.M. that same morning, Isola, who had resumed his patrol, came upon Whitmore at a laundromat close to the scene of the Borrero attack. Whitmore was five feet six inches tall, weighed 130 pounds, and had a light complexion and pockmarked face. Although Isola had come within fifteen feet of Mrs. Borrero’s attacker and had shone a flashlight at him, he did not then suspect that Whitmore might be that man. Isola asked Whitmore a few questions and then continued on his beat. Because ten days earlier there had been a rape-murder of one Minnie Edmonds only a few blocks from where Mrs. Borrero was attacked, and because the detective investigating the Edmonds’ crime, Detective Aidala, believed there was a similarity between these two crimes, Detective Aidala took over the Borrero case from the detective to whom it had been assigned. Aidala contacted Isola, interviewed Mrs. Borrero, and on April 24, 1964, accompanied by Isola, took Whitmore into custody. III. Whitmore was brought to the police station early that morning. Mrs. Borrero was summoned a few moments later. She viewed Whitmore standing alone in a room and identified him as her assailant. By midnight of April 24, 1964, after having been in custody for seventeen hours, Whitmore had “confessed” to the Borrero attack, the Edmonds murder, and to the rape-murders of two other young women named Wylie and Hoffert. The charges against Whitmore in the Edmonds case were later dropped. The Wylie-Hoffert confession has since been proved false. Whitmore’s confession in the Borrero case was not used in his third trial on those charges because of a mutual misconception on the part of all the attorneys and the trial justice that Miranda v. Arizona applied to retrials after its effective date. Without the confession the case against Whitmore rested entirely on the identification of him by Mrs. Borrero. Discrepancies between the first descriptions of the attacker, which do not describe Whitmore and which presumably came from Mrs. Borrero, and Mrs. Borrero’s description of the assailant after she had seen Whitmore at the police station, have led appellant to question her identification of him at all three trials. Since this attack on Mrs. Borrero’s identification was the heart of his defense, when certain items of “newly discovered evidence” were developed at the identification hearing, Whitmore moved to dismiss the indictment or, in the alternative, for a new trial. At the identification hearing Mrs. Borrero disclosed that she had actually viewed Whitmore twice at the early morning show-up on April 24, 1964. Each of these views was through a peephole into a room in which Whitmore stood alone. For the second, previously unreported viewing, Whitmore was told to wear his hat and coat. Appellant claims that this second show-up was required because Mrs. Borrero did not at first recognize him. Appellant further claims that a guilty verdict would not have been returned if the jury had known that there had been two show-ups. Appellant believes that this information, together with his other evidence, including the inconsistencies between the first description of the attacker and Mrs. Borrero’s later descriptions (which more accurately describe Whitmore) create a strong case against the Borrero identification. Since the State’s entire ease rested on this identification and since appellant asserts that the second showup was new evidence which would have enabled Whitmore to successfully attack this crucial identification, appellant argues that the New York courts at the very least, should have granted him a new trial. Appellant notes that this additional piece of information might well have led defense counsel to “tell the jury the whole shameful story of the events at the stationhouse on the day of the confessions and of Mrs. Borrero’s identification.” (Appellant’s Reply Brief, p. 4.) At the identification hearing, Whit-more’s attorney also learned that Detective Aidala had interviewed an eyewitess to the attack on Mrs. Borrero. Aidala’s notebook contained the following remarks: Sister-in-law saw he [sic] grab me from her window. (Celeste Viruet . . .) [addresses and phone numbers] M — Negro Tan or beige coat — long coat — cloth. No hat. 5'7" or 8" — 26 or 7 years. This description, if it came from Celeste Viruet, is an independent description which Whitmore claims is favorable to him. Whitmore argues that the Viruet description would have been especially helpful to the defense since it too describes a man, older and taller than Whitmore, who was wearing a long coat and no hat. The claim is made that this evidence would have opened up new lines of attack on Mrs. Borrero’s identification of Whitmore. Appellant further claims that he should not have been indicted by a grand jury or convicted by a trial jury which did not have the opportunity to consider the description of an eyewitness, which description, he says, is favorable to him. Appellant charges that New York has “deliberately suppressed” both these items. The result of this “suppression”, Whitmore believes, was that he has been denied due process of law and that his petition for a writ of habeas corpus should, therefore, be granted. IV. The “additional” show-up, during which Whitmore wore his coat and hat, occurred only a few minutes after the “first” show-up. There is no evidence that it was Mrs. Borrero who requested that Whitmore don his hat and coat so that she could better identify him; indeed, she testified that she did not make this request. We know that as soon as she caught sight of Whitmore she became frightened and began to cry. It was after she had regained her composure that she viewed the suspect again, this time with his hat and coat on. Appellant’s suggestion that Mrs. Borrero must have requested to see Whitmore with his hat and coat because she could not recognize him otherwise is contradicted by the undisputed fact that immediately upon seeing him she said, “This is the man,” and became very distraught. This recognition at the first instant is bolstered by her becoming upset and frightened immediately thereafter. We cannot say that the police in charge of this show-up should have insisted that Mrs. Borrero continue to look through the peephole while Whitmore donned his coat and hat. The “second” viewing occurred between ten and thirty minutes after the “first”. Under the circumstances we have no difficulty concluding that there was only one show-up which was understandably interrupted when Mrs. Borrero became upset upon recognizing the man whom she believed, only thirty hours before, had threatened to kill and rape her. And even if we did agree that there were two show-ups here, this fact could not be deemed to be of sufficient import in this case to warrant the granting of the petition sought here. The defense has attacked Mrs. Borrero’s identification of Whitmore at three separate jury trials. Appellant places great emphasis on the fact that the initial descriptions of the attacker, which presumably would have come from Mrs. Borrero herself, do not describe Whit-more at all. In addition, appellant points out that while the early descriptions affirmatively state that the attacker was not wearing a hat, Mrs. Borrero later claimed that he was wearing one. Appellant also suggests a possible motive for the apparent changes in Mrs. Borrero’s description of her assailant. A reward of $10,000 had been offered for the capture of the Wylie-Hoffert murderer(s). After Mrs. Borrero had identified Whitmore she visited some lawyers to discuss collecting this reward. All of the above, however, has been fully explored in three jury trials and at the identification hearing. It has not persuaded any of those who have considered it. We do not believe that the additional knowledge of the “second” show-up could have changed the result in this case. A further reason for refusing to deem this “second” show-up “new evidence” requiring a new trial, a federal evidentiary hearing, or the granting of a petition for a writ of habeas corpus is that all the arguments presented to us now were considered at Justice Helfand’s post-trial identification hearing. Whitmore’s claim that this is important new evidence was rejected there and appealed and argued to the Appellate Division and the New York Court of Appeals. Having been rejected in each of these courts, this aspect of the case merits no further consideration in the Federal Courts. V. Appellant’s claim that the prosecution suppressed evidence of the only eyewitness to the crime is similarly insufficient to warrant any federal interference in his State imprisonment. From the sketchy reference in Detective Aidala’s notebook it appears that Mrs. Borrero told Aidala that her sister-in-law had seen the perpetrator grab her. The description that follows the name and address of Celeste Viruet seems to indicate that Aidala later talked to her and copied this description from her. This is not clear but it is a fair inference from these sketchy notes. At the identification hearing ordered by the Appellate Division after the third trial some five years after the crime and the investigation, Detective Aidala was not certain that he had talked with Celeste Viruet and gotten that description from her. Whitmore’s attorneys state that they did not know of this eyewitness until the post-trial identification hearing held in April, 1969. The State contends that the existence of the eyewitness was not deliberately kept from defense counsel and that the attorneys who represented Whitmore in the Edmonds case had Aidala’s notebook at that trial and must have noted the reference which counsel now finds so important. Whitmore’s present counsel argues that the page on which these notes appear was not available to counsel at the Edmonds trial and that even if it were, it would have been of no interest since there was nothing on that page concerning the Edmonds case. Appellant’s argument here is that Mrs. Borrero’s identification could have been better attacked had his attorneys known of this eyewitness'. However, regardless of whether Whitmore’s attorneys knew about the eyewitness before the hearing, they did learn of her during that hearing. Appellant had convinced the Appellate Division of the necessity for such a hearing. That was the proper occasion in which to attack the identification of Whitmore by calling the eyewitness to determine what she knew and with whom she had spoken in 1964. No attempt was made to call that witness at the identification hearing. Justice Helfand found: The Court finds that Mrs. Borrero would have been able to identify the defendant in Court even if the objectionable procedure in the station house had not been followed. * * * [T]he Court concludes that her in-Court identification was of an independent source and origin and in no way predicated upon the tainted show-up at the station house. * * There was the unmistakable ring of truth to her testimony. It was direct; it was positive; it was clear and convincing. Minutes of Hearing, April 8, 1969, at 656-57. This determination by the trial justice was reviewed in the Appellate Division and argued twice in the Court of Appeals. The same arguments Whit-more makes here, he has previously made in each of these courts. The standard of proof at the identification hearing was that the evidence must be “clear and convincing” that the identification was untainted. People v. Ballott, 20 N.Y.2d 600, 606, 286 N.Y.S.2d 1, 6, 233 N.E.2d 103 (1967); People v. Rahming, 26 N.Y.2d 411, 416, 311 N.Y.S.2d 292, 296, 259 N.E.2d 727 (1970). Query, what was there, if anything, in the Viruet description that could possibly upset this finding and affirmance on appeal? Mrs. Borrero’s identification was direct and positive, clear and convincing. Mrs. Viruet had described the attacker as five feet seven inches tall; Whitmore is actually five feet six inches tall. She claimed he was wearing a long coat; Whitmore’s coat was a three-quarter length. She said the attacker had no hat; Mrs. Borrero claims there was a hat. The only significant difference at all between the eyewitness description and Whitmore himself concerns the hat. The hat Whitmore was wearing when he was arrested was one which can be worn close to the head so that it might not be easily discerned from a distance at 1:00 A.M. on a dark night. The description given by this eyewitness does not merit the label “new evidence”. It is virtually identical to the other descriptions, except where it better describes Whitmore than these other reports. Thus, even if Whitmore’s counsel had not known about the lady in the window, the discovery of her existence after trial does not warrant the granting of a new trial, and denial of such a new trial cannot be seen as a violation of Whitmore’s right to due process of law. VI. In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the Supreme Court stated the role of the writ of habeas corpus: Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man’s imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release. * * * Vindication of due process is precisely its historic office. 372 U.S. at 402, 83 S.Ct. at 829. Appellant here claims that he has been denied due process because the State suppressed evidence favorable to him and because the State refused to grant him a new trial upon the discovery of “new evidence”. The standards for granting petitions for habeas corpus based on allegations of newly discovered evidence are set forth in Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963): Where newly discovered evidence is alleged in a habeas application, evidence which could not reasonably have been presented to the state trier of facts, the federal court must grant an evidentiary hearing. Of course, such evidence must bear upon the constitutionality of the applicant’s detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus. The Court continues by noting that: The conventional notion of the kind of newly discovered evidence which will permit the reopening of a judgment is, however, in some respects too limited. * * * If, for any reason not attributable to the inexcusable neglect of petitioner, * * * evidence crucial to the adequate consideration of the constitutional claim was not developed at the state hearing, a federal hearing is compelled. 372 U.S. at 317, 83 S.Ct. at 759. (emphasis added) Neither the second show-up nor the eyewitness qualifies as evidence which “bear[s] upon the constitutionality of the applicant’s detention”. This is obvious with respect to the show-up; it should also be obvious from a reading of the description which the eyewitness gave to Detective Aidala. Analysis of either piece of “new” evidence only provides additional proof of Whitmore’s guilt. Neither can be characterized as an item of “evidence crucial to the adequate consideration of the constitutional claim.” Appellant also asserts that his petition should be granted because the State deliberately suppressed both items of evidence. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held that: [T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. 373 U.S. at 87, 83 S.Ct. at 1197. We believe, however, that both of these items of evidence would make the State’s case against Whitmore even stronger. Since we are, therefore, not dealing with a case where “evidence favorable to an accused” has been kept from him, we need not consider appellant’s claim that the evidence here was suppressed by the prosecution. In sum, we believe that Judge Bruchhausen acted properly when he denied appellant’s petition for a writ of habeas corpus. The order is affirmed. MULLIGAN, Circuit Judge (dissenting) : I agree with the majority that the so-called suppression of a- second show-up of Whitmore constitutes no basis for federal action here. The State has already conducted a post-trial evidentiary identification hearing at which Mrs. Borrero testified and was cross-examined. There is no new evidence and no suppression. The alleged suppression of the existence of an eyewitness to the assault on Mrs. Borrero, in my view, presents a compelling ground for the holding of the evidentiary hearing denied the appellant by the court below. Appellant urges here, as he did in the district court, that it was not until the Spring (March-May) 1969 post-trial evidentiary hearing that counsel for Whit-more ever learned that there was an eyewitness to the assault on Mrs. Borrero. It was then ascertained that Detective Aidala who was in charge of the Minnie Edmonds’ murder investigation and took over the Borrero case because of a possible similarity of modus operandi, kept a notebook which indicated that Celeste Viruet, the sister-in-law of the victim, had seen her being grabbed in the early morning of April 23, 1964 while looking out of her apartment window. Counsel for Whitmore in all three Borrero trials have submitted affidavits denying that they ever knew of or were advised of the existence of Celeste Viruet, the silent witness in the window. Celeste Viruet was never called by the State in any of the trials nor has she ever appeared in any evidentiary or other proceeding relating to Whitmore. The State makes no contention that defense counsel was ever specifically advised of the existence of this witness. The State only claims that the notebook of Detective Aidala was made available to counsel for Whit-more when he was being defended on the charge of murdering Minnie Edmonds. The record does not at all establish that even in this other case where counsel’s concern was for a different crime, all pages of the notebook were made available. This is a disputed fact and no evidentiary hearing has ever been conducted on this question in any State proceeding. In this case Whitmore’s guilt ultimately rested solely upon the identification by the victim. The significance therefore of an eyewitness to the crime in the preparation of Whitmore’s defense is obvious. See Roviaro v. United States, 353 U.S. 53, 64, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). There are disputed questions of fact here which have never been determined in any State court evidentiary hearing. The existence of Celeste Viruet was disclosed in the Spring, 1969 evidentiary hearing after Whitmore had been convicted. However, the question to be determined in that proceeding was whether the one-man show-up of Whitmore tainted Mrs. Borrero’s subsequent in-court identification. Hence, Judge Helfand was not concerned about the role of Celeste Viruet. The Court: I permitted you to go far afield about the business of the sister-in-law. I am going to exclude any further questions about it. She was not a witness before me and whether he interviewed her or did not interview her or she gave him certain information, has some slight bearing on the issues here. Q. Did Mrs. Borrero tell you that her sister-in-law saw-— The Court: No, that is excluded; I don’t care what she told her. It is excluded. Now go to something new. Enough about the sister-in-law. Mr. Beldock: Yes, your Honor. (Transcript of hearing at 522, 523). Subsequently, Whitmore moved to dismiss the indictment on the ground of the suppression of this evidence. This motion was denied by Judge Helfand by order dated December 30, 1969, without a hearing. Under the circumstances, an evidentiary hearing is mandated in the federal district court: Where the facts are in dispute, the federal court on habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts. Townsend v. Sain, 372 U.S. 293, 312-313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963) (footnote omitted); see 28 U.S.C. § 2254(d). The majority here seeks to avoid Townsend v. Sain by finding that the new evidence of the eyewitness does not bear upon “the constitutionality” of Whitmore’s detention nor is it “crucial” since in any event her testimony would not help Whitmore but would in fact strengthen the State’s case against him. Neither proposition is tenable. The claim here is not that the defendant didn’t know about an eyewitness to the crime but rather that the State knew and deliberately suppressed and concealed her existence from the defense. This is unquestionably of constitutional magnitude. Brady v. Maryland, 373 U. S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The argument of the State adopted by the majority here that we can disregard Celeste Viruet’s existence because her testimony would have only hurt the defense and helped the State, has to be rejected. The description in Aidala’s notebook while not accurately describing Whitmore, has only the virtue of being more accurate than that contained in the original police alarm which was presumably supplied by Mrs. Borrero. We don’t even know for sure if the description in the book was supplied by Celeste Viruet since Aidala wasn’t positive that he had even interviewed her. In any event what the lady in the window saw and what she might testify to, is not known since she has never appeared in any proceeding to date. The fact that there was another eyewitness not called by the State in a case which in substance depended primarily upon Mrs. Borrero’s identification of her assailant, cannot be disregarded. Having taken a position that the evidence of Celeste Viruet would be somehow “favorable” to the State, the majority concludes “we need not consider appellant’s claim that the evidence here was suppressed by the prosecution.” However, a federal court’s task is to determine both materiality of the evidence and whether its suppression was intentional or inadvertent. United States v. Keogh, 391 F.2d 138, 146-148 (2d Cir. 1968) and 440 F.2d 737, 741 (2d Cir.), cert. denied, 404 U.S. 941, 92 S.Ct. 285, 30 L.Ed.2d 254 (1971). Neither factor can be ascertained here without an evidentiary hearing. PETITION FOR REHEARING EN BANC GRANTED A petition for rehearing containing a suggestion that the action be reheard en banc having been filed herein by counsel for the appellant, and a majority of the judges in active service having voted in favor of such rehearing, It is hereby Ordered that said petition be and it hereby is granted. Reconsideration will be had, without further oral argument, on the record and on the briefs heretofore filed and to be filed. The parties are requested to file further briefs on or before March 16, 1973, addressed, but not limited, to the progress of the investigation presently being conducted by the Kings County District Attorney. ORDER It is hereby ordered that the motion made herein by Myron Beldock, Esq., counsel for the relator-appellant in the form of a letter dated April 10, 1973 is granted, the district court’s order denying the petition for habeas corpus is vacated, and the appeal is dismissed as moot. . Minutes of Hearing conducted by 1-Ion. Walter Bruehhausen, United States District Judge, Eastern District of New York, dated May 23, 1972. . Bee discussion of this show-up infra. New York law is clear that where the pretrial identification procedure is unnecessarily suggestive or conducive to erroneous identification, the state must show by clear and convincing evidence that the in-eourt identification was not the product of, and was not affected by, the improper pretrial sliow-up. People v. Logan, 25 N.Y.2d 184, 191, 303 N.Y.S. 2d 353, 358, 250 N.E.2d 454 (1969); People v. Ballott, 20 N.Y.2d 600, 606-607, 286 N.Y.S.2d 1, 6, 233 N.E.2d 103 (1967); People v. Rahming, 26 N.Y.2d 411, 416, 311 N.Y.S.2d 292, 296, 259 N.E.2d 727 (1970). . The hearing held by Justice Helfand in 1969 is recorded in 659 pages of transcript. . Unreported Order of Justice Helfand, New York State Supreme Court, Kings County, dated December 30, 1969. . In its Miranda decision the Supreme Court cited Whitmore’s “confession” as an egregious example of the false confessions which can result from custodial interrogations. Miranda v. Arizona, 384 U.S. 436, 455 n. 24, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Whitmore was tried for the Edmonds murder in April, 1966, after his conviction in the first Borrero trial liad been set aside. The trial resulted in a hung jury, and on April 30, 1966, a mistrial was declared. Two months later the Edmonels indictment was dismissed because it was believed that the Miranda decision (June 13, 1966) required the retrial of the appellant without the use of certain critical admissions which had been used in the first trial. . The Wylie-Hoffert murders, which occurred in Manhattan in August, 1963, attracted nationwide attention. The charges against Whitmore for these murders were dismissed before his second trial in the Borrero case, which occurred in May, 1966. One Richard Robles was subsequently convicted of these murders. People v. Robles, 27 N.Y.2d 155, 314 N.Y.S.2d 793, 263 N.E.2d 304 (1970). . In 1969 the Supreme Court ruled that Miranda did not apply to “post-Miranda retrials of cases originally tried prior to tliat decision.” Jenkins v. Delaware, 395 U.S. 213, 213-214, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969) (footnotes omitted). See also, People v. Sayers, 22 N.Y.2d 571, 293 N.Y.S.2d 769, 240 N.E.2d 540 (1968), cert. denied, 395 U.S. 970, 89 S.Ct. 2107, 23 L.Ed.2d 759 (1969). . These descriptions are contained in Patrolman Isola’s notebook, in his official report of the incident, in the police blotter, and in tlie record of tlie alarm given to police radio cars. They generally agree that the perpetrator weighed about 165 pounds, was from five feet seven to five feet nine inches tall, was between twenty and twenty-seven years old, and was not wearing a hat. Mrs. Borrero denies that she was the source of these descriptions. She now claims that she had originally described the attacker as under five feet seven inches, about 155 pounds with a light coriiplexion and heavily pockmarked face, and wearing a hat. Whitmore had a light complexion and his face is pockmarked. See the description by Celeste Viruet in Detective Aidala’s notebook infra. . See discussion of the origin of this description infra. . The definite statement that the attacker was not wearing a hat agrees with the early descriptions of the perpetrator. See n. 9 supra. It directly contradicts Mrs. Borrero’s testimony. This description is the only one which does not describe the attacker’s coat as three-quarter length. . See n. 6 supra. . The case was ordered reargued after the first argument in the New York State Court of Appeals. The second argument focused on “whether defendant’s guilt was established beyond a reasonable doubt as a matter of law.” 28 N.Y.2d 587, 319 N.Y.S.2d 620, 268 N.E.2d 331 (1971). . A strong dissent was filed by Judge Breitel who believed that the proof was insufficient, as a matter of law, to establish guilt beyond a reasonable doubt. 28 N.Y.2d 826, 322 N.Y.S.2d 65, 270 N.E.2d 893 (1971). Mr. Beldock: That’s the description you got from the sister-in-law who saw this happen from the window; right? Det. Aidala: Oh, that’s possible. It might be from the sister-in-law. You could be right there, Counsellor. (Transcript of Hearing at 508-09.)

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2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. Larry DICKINSON and Gibbs Adams, Defendants-Appellants. No. 72-3275. United States Court of Appeals, Fifth Circuit. April 9, 1973. Frank M. Coates, Jr., Baton Rouge, La., for defendants-appellants. E. Barrett Prettyman, Jr., Robert R. Bruce, Lawrence R. Velvel, Columbus School of Law, Washington, D. C., amicus curiae, for The Reporters Committee for Freedom of the Press. Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., Douglas M. Gonzales, U. S. Atty. (M. D.), Baton Rouge, La., Mary Williams Cazalas, James D. Carriere, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee. Before JONES, GODBOLD and INGRAHAM, Circuit Judges. PER CURIAM: A prosecution for murder was pending in a state court of Louisiana. An action was brought in the United States District Court for the Middle District of Louisiana to enjoin the prosecution in the state court. A hearing was held in the Federal court. Statements were made with respect to matters which would probably be the subject of testimony in the state court in the event the state court proceeding was not enjoined. The district court with the intent of preventing prejudice to the holding of a fair trial in the state court ordered that no publicity be given by press or otherwise with respect to the substantive statements. The appellants, newspaper reporters, violated the court’s order by writing reports outlining the testimony. They were brought before the district court, a hearing was held, and they were convicted of contempt and fines were imposed. An appeal to this Court was taken and the decision and judgment of this Court was made. The judgment of the district court was vacated and the cause was remanded for further proceedings as directed by this Court’s opinion. United States v. Dickinson, 5th Cir. 1972, 465 F.2d 496. On remand the district court made further findings and adhered to and confirmed its finding of willful contempt and adhered to the penalties previously imposed, 349 F.Supp. 227. The newspaper reporters have again taken their appeal to this Court. We do not have on this appeal any issue of free press-fair trial. The determination which we make is that the prior opinion and decision of this Court established the law of the case from which we do not depart. Orderly judicial procedure requires that there be an adherence to a decision upon an earlier appeal of the same case. William G. Roe & Co. v. Armour & Co., 5th Cir. 1969, 414 F.2d 862; White v. Murtha, 5th Cir. 1967, 377 F.2d 428; Rachal v. Allen, 5th Cir. 1967, 376 F.2d 999; Lumbermen’s Mutual Casualty Co. v. Wright, 5th Cir. 1963, 322 F.2d 759. Although the Court has power to adopt a position different from that of the earlier appeal, we are not persuaded that such action is required in this cause. It is to be noted that the appellants did not seek a rehearing or make application for certiorari of the decision on the prior appeal. The judgment of the district court is affirmed.

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Frances FISHER, Appellee, v. James SNYDER et al., Appellants. No. 72-1599. United States Court of Appeals, Eighth Circuit. Submitted Feb. 15, 1973. Decided April 16, 1973. Charles W. Baskins, North Platte, Neb., and William P. Mueller, Ogallala, Neb., for appellants. Theodore L. Kessner, Lincoln, Neb., for appellee. Before LAY and BRIGHT, Circuit Judges, and NICHOL, District Judge. Sitting by designation. BRIGHT, Circuit Judge. Appellants, as members of the school board of a rural Nebraska county district, dismissed appellee, Frances Fisher, as a high school teacher at the close of the 1972 school year, giving as a reason her “unbecoming conduct” outside the classroom. Mrs. Fisher thereafter brought an action against the members of the board under 42 U.S.C. § 1983, alleging that constitutionally impermissible reasons underlay their dismissal action. The district court ordered her reinstatement, and the board members bring this appeal. We affirm the district court. The relevant facts are not in dispute. Mrs. Fisher, a middle-aged divorcee, was employed at the high school in Tryon, Nebraska, from 1970 to 1972. Her married son, then 26 years old, lived and taught in the neighboring town of Stapleton, Nebraska. Mrs. Fisher lived alone in a one-bedroom apartment. On several occasions, young ladies, married couples, and young men, who were friends of her son, visited Tryon. Because hotel and motel accommodations were generally sparse and unavailable in Tryon, Mrs. Fisher followed the advice of the secretary of the school board and allowed these guests to stay overnight at her apartment. Cliff Rowan, age 26, was a particularly frequent visitor. Rowan’s parents lived in California. He, therefore, regularly visited Mrs. Fisher during his school vacations and at other times, and she referred to him as her second son. In the spring of 1972, Rowan spent about a week in Tyron visiting school classes as a means of fulfilling certain of his college requirements. Mrs. Fisher made arrangements with school administrators for this visitation and it was reported in the local newspaper. Following Rowan’s visit, the school board notified Mrs. Fisher that her contract would not be renewed at the end of the 1972 school year. At her request, pursuant to provisions of Nebraska law, the board afforded Mrs. Fisher a hearing relating to the notice of dismissal. Following this hearing, the board made findings justifying the dismissal which, as here pertinent, read: (a) Frances A. Fish [sic] is a single woman. (b) That on several occasions during the current school year men, not related to Frances A. Fisher, stayed in her apartment in Tryon, McPherson County, Nebraska, on several occasions ranging from one night to a period of at least one week, this constitutes conduct unbecoming a teacher. The district court held the dismissal impermissible as arbitrary and capricious in violation of Mrs. Fisher’s right to substantive due process under the Fourteenth Amendment. As a further basis for its decision, the court determined that the board, in dismissing Mrs. Fisher, invaded her constitutionally protected rights of association and privacy. Affirming on the substantive due process ground, we do not reach the issues of association or privacy. Nebraska by statute requires that notice and a hearing be given nontenured teachers who are to be terminated. Neb.Rev.Stat. § 79-1254. The appellees concede that the school board, in dismissing Fisher, complied with the statute, and its judgment, therefore, must be afforded judicial deference “so long as the board does not act unreasonably, arbitrarily, capriciously, or unlawfully.” Smith v. Board of Educ., 365 F. 2d 770, 782 (8th Cir. 1966); see Bradford v. School Dist. No. 20, 364 F.2d 185, 189 (4th Cir. 1966); Johnson v. Branch, 364 F.2d 177, 180-181 (4th Cir. 1966), cert. denied, 385 U.S. 1003, 87 S. Ct. 706, 17 L.Ed.2d 542 (1967); Brooks v. School Dist., 267 F.2d 733, 739 (8th Cir.), cert. denied, 361 U.S. 894, 80 S.Ct. 196, 4 L.Ed.2d 151 (1959). However, a high school teacher may successfully argue that his dismissal was arbitrary and capricious if he can prove: * * * that each of the stated reasons [underlying his dismissal] is trivial, or is unrelated to the educational process or to working relationships within the educational institution, or is wholly unsupported by a basis in fact. [McEnteggart v. Cataldo, 451 F.2d 1109, 1111 (1st Cir. 1971), cert. denied, 408 U.S. 943, 92 S.Ct. 2878, 33 L.Ed.2d 767 (1972).] Drown v. Portsmouth School District, 451 F.2d 1106, 1108 (1st Cir. 1971); see Cook County College Teachers Union, Local 1600, AFT v. Byrd, 456 F.2d 882, 889 (7th Cir.), cert. denied, 409 U.S. 848, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972); Freeman v. Gould Special School Dist., 405 F.2d 1153, 1167 n.9 (Lay, J., dissenting); Johnson, supra, 364 F.2d at 181-182; cf. Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). Thus, while a school board may legitimately inquire into the character and integrity of its teachers, see Beilan v. Board of Public Educ., 357 U.S. 399, 405, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958); Adler v. Board of Educ., 342 U.S. 485, 493, 72 S.Ct. 380, 96 L.Ed. 517 (1952); Jenkyns v. Board of Educ., 111 U.S.App.D.C. 64, 294 F.2d 260, 261 (1961); James v. West Virginia Bd. of Regents, 322 F.Supp. 217, 228-230 (S.D.W.Va.1971), it must be certain that it does not arbitrarily or capriciously dismiss a teacher based on unsupported conclusions drawn from such inquiries. In seeking to justify the dismissal in this case, the school board argues that the evidence developed at the board hearing supported its finding Mrs. Fisher guilty of conduct unbecoming a teacher. In the board’s view, “the inferences from her social behavior are that there was a strong potential of sexual misconduct.” The board does not actually accuse Mrs. Fisher of immoral conduct but “of social misbehavior that is not conducive to the maintenance of the integrity of the public school system.” [Appellants’ Brief at 12,13.] But here, there is no proof of improper conduct. The only whit of evidence offered as support for the board’s conclusion that Mrs. Fisher was guilty of unbecoming conduct was the fact that she had overnight guests. But the presence of these guests in her home provides no inkling beyond subtle implication and innuendo which would impugn Mrs. Fisher’s morality. Idle speculation certainly does not provide a basis in fact for the board’s conclusory inference that “there was strong potential of sexual misconduct” and that, therefore, Mrs. Fisher’s activity was “social misbehavior that is not conducive to the maintenance of the integrity of the public school system.” We agree with the district court that “At most, the evidence may be said to raise a question of Mrs. Fisher’s good judgment in her personal affairs, when measured against an undefined standard which someone could suppose exists in a small town in Nebraska.” Fisher, supra, 346 F.Supp. at 398. The record, furthermore, contains considerable evidence tending to negate any inference of improper or immoral conduct by Mrs. Fisher. She did not attempt to conceal the presence of her house guests but instead openly inquired of the school board’s secretary about motel accommodations in Tryon for these guests. She was advised to keep them in her home because other accommodations were so limited. She formally introduced one of her guests at school so that he might observe classes to satisfy college requirements. The local Avon lady, wife of the pastor of a church in Tryon, called at Mrs. Fisher’s residence on a Saturday morning during the 1970-1971 school year. Although Mrs. Fisher was apparently awakened by the visit, she invited the pastor’s wife into her apartment. A young man who had been an overnight guest was also present in the apartment, and the three drank coffee together. Two citizens of Tryon called as witnesses for the school board were subpoenaed. Their testimony cast no aspersions upon Mrs. Fisher’s character or her fitness as a teacher. No evidence of a community reaction against Mrs. Fisher has been presented, compare with James, supra, 322 F.Supp. at 229 (student teacher denied student teaching assignment in circumstances of strong community reaction to published accounts of his radical activities), nor has she been shown incapable of maintaining discipline in her classes because of any inferences of impropriety drawn by her students or their parents. This evidence, in the context of our review of the entire record, convinces us of the correctness of the district court’s determination. The openness of the association, and the age differential between Mrs. Fisher and her guests, would seem to belie any inference of impropriety. The school board’s inference of misconduct was arbitrary and capricious and therefore constituted an impermissible reason for terminating her employment, since the inference lacked any valid basis in fact. Accordingly, we affirm the judgment of the district court. . Fisher v. Snyder, 346 F.Supp. 396 (D.Neb.1972). . Mrs. Fisher’s age is not disclosed by the record. The brief filed by amici curiae states that she is 55. . Tryon has a population of less than 100. . The statute provides : Any contract of employment between an administrator or a teacher who holds a certificate which is valid for a term of more than one year * * * shall be deemed renewed and shall remain in full force and effect until a majority of the members of the board vote on or before May 15 to amend or to terminate the contract at the close of the contract period; Provided, that the secretary of the board shall, not later than April 15, notify each administrator or teacher in writing of any conditions of unsatisfactory performance or other conditions because of a reduction in staff members or change of leave of absence policies of the board of education which the board considers may be cause to either terminate or amend the contract for the ensuing school year. Any teacher or administrator so notified shall have the right to file within five clays of receipt of such notice a written request with the board of education for a hearing before the board. Upon receipt of such request the board shall order the hearing to be held within ten days, and shall give written notice of the time and place of the hearing to the teacher or administrator. At the hearing evidence shall be presented in support of the reasons given for considering termination or amendment of the contract, and the teacher or administrator shall be permitted to produce evidence relating thereto. . Russell Kemp, a school board member, stated at the April 19th board hearing that he had heard conversation from “different places here in town” that men frequented Fisher’s apartment. “Just about any place you wanted to ask, as far as that goes.” . The superintendent of schools testified that in observing Mrs. Fisher’s classes, he had “always found them in good order.”

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UNITED STATES of America, Plaintiff-Appellee, v. Charles ALDEN, a/k/a Charles Alden Boyd, Defendant-Appellant. No. 71-1717. United States Court of Appeals, Seventh Circuit. Argued Nov. 3, 1972. Decided March 30, 1973. Michael P. Toomin, Chicago, Ill., for defendant-appellant. James R. Thompson, U. S. Atty., Richard M. Williams, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee. Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and PELL, Circuit Judge. PELL, Circuit Judge. Alden appeals from his conviction on all three counts of an indictment founded on 18 U.S.C. § 2113(a) and (d). There was no dispute about the factual basis of the indictment. On June 5, 1970, Alden, then in his late sixties, handed a teller in the South Chicago Savings Bank a note demanding money and referring to a back-up man elsewhere in the bank. He departed with $9500.00 in a paper bag. On November 6, 1970, at the same bank, Alden presented a similar note to a different teller located near the scene of the first incident. He departed without any money. On November 12, 1970, he again appeared at the same bank with a similar note which was presented to a third teller also in the same general area of the bank. He departed hastily without his note being honored. He was apprehended outside the bank. During the course thereof, using a toy pistol, Alden squirted a window washing fluid containing ammonia into the face of a bank employee. The only apparent attempt Alden made to disguise his appearance at any time was the wearing of a gauze patch over one lens of his glasses during the third incident. These basic facts were not controverted by Alden. His attempted defense, which was made clear in both opening statement and closing argument of his counsel, was that he lacked the requisite mental intent. The present appeal relates to the intervening period of time between these two oral articulations of the defense, as to which Alden contends that his continuing efforts to substantiate his defense were thwarted by an unfair trial. We agree and reverse. By way of general support of a number of the challenged rulings precluding testimony in response to defense questions to witnesses, the Government attaches talismanic significance to the lack of offers to prove: make an offer of proof precludes the reviewing court from passing upon the trial court’s exclusion of evidence.” It is true that reference has been made in the cases to this lack. The emphasis appears to be that the reviewing court without the benefit of the offer was unable to judge whether the exclusion was prejudicially erroneous. See, e. g., Trust Co. of Chicago v. Erie R. Co., 165 F.2d 806, 810 (7th Cir. 1948), cert. denied, 334 U.S. 845, 68 S.Ct. 1513, 92 L. Ed. 1769. The other side of this particular coin, however, is that “a formal offer of proof is not necessary where the record shows, either from the form of the question asked or otherwise, what the substance of the proposed evidence is.” Iva Ikuko Toguri D’Aquino v. United States, 192 F.2d 338, 374 (9th Cir. 1951), cert. denied, 343 U.S. 935, 72 S.Ct. 772, 96 L.Ed. 1343 (1952). Trial counsel certainly would be well advised not to take the calculated risk of being rescued by this obviousness standard; however, in the present case we are compelled to the conclusion that in numerous instances there could not have been other than an awareness of that which would have been forthcoming from the witnesses if they had been permitted to answer. So long as substantial rights are affected, Rule 52(a), Fed.R.Crim.P., if “a question is proper on its face and indicates an answer favorable to the appellant, no offer of proof is necessary.” Harris v. Smith, 372 F.2d 806, 815 (8th Cir. 1967). Of course, there should be a showing of relevancy and materiality. Here the expected answers clearly could have had an impact on “substantial rights” since they pertained to the essence of what was admittedly Alden’s only defense. We also note that frequently the objections to questions were nonexplicit and counsel’s attempts to discover the basis of the ruling or to argue law were summarily cut off by the district court. “Failure to Turning to the specifics of the defense effort, we first are concerned with the proposed testimony of two psychiatrists brought to the stand by Alden. Dr. David A. Rothstein had examined the defendant on January 11, 1971. Upon learning of this, the Government moved for a psychiatric examination which was ordered and was thereafter conducted by Dr. Richard Marohn on January 18 and 23, 1971. Copies of their respective findings were tendered both to the prosecution and to the defense. Both psychiatrists were called as witnesses by Alden but for all practical purposes they might as well have stayed at their offices. The opportunity that Alden had of demonstrating whether or not there was verity to his defense of mental incompetency is illustrated more graphically by extracts from the record than it would be by our characterizations thereof. Thus, the following is set forth from the transcript of Dr. Rothstein’s appearance on the witness stand: BY MR. TOOMIN: Q Doctor, based on the examination that you made on the date in question, what, if any, diagnosis were you able to make ? A My diagnosis— MR. WILLIAMS: Objection at this time for the record, your Honor, for failure to see any relevancy to the dates of the offenses. THE COURT: I sustain the objection. MR. TOOMIN: Your Honor, do I understand that the objection— THE COURT: I am not here to answer questions. You asked the question and if the United States Attorney wants to object, he may. It is my responsibility to rule on the objections. BY MR. TOOMIN: Q Doctor, based on the examination that you made on January 11, 1971, were you able to arrive at any diagnosis, if any, as to the defendant’s condition on June 5, 1970? MR. WILLIAMS: Objection at this time, your Honor. THE COURT: I sustain the objection. BY MR. TOOMIN: Q Doctor, as a result of your examination of the defendant on January 11, 1971, were you able to reach a diagnosis based on a reasonable degree of medical certainty as to the defendant’s mental condition on June 5, 1970, on which date he is accused of robbing the South Chicago Bank? MR. WILLIAMS: Objection. THE COURT: I sustain the objection. * * * * * -X- BY MR. TOOMIN: Q Doctor, did you make any clinical observations of the defendant during the course of the examination? MR. WILLIAMS: Objection, your Honor. THE COURT: I sustain the objection. -» * -X- * -X- -X- BY MR. TOOMIN: Q Doctor, what were the results, if any, of your examination on January 11, 1971 ? MR. WILLIAMS: Objection as to relevancy. THE COURT: I sustain the objection. ■ * -X- * -X- -X- -X- BY MR. TOOMIN: Q Dr. Rothstein, recalling your attention to the date of your examination on January 11, 1970, [sic] would you relate to the ladies and gentlemen of the jury what, if any, physical observations you were able to make of the defendant ? MR. WILLIAMS: Objection, your Honor. THE COURT: I will sustain the objection to that question. BY MR. TOOMIN: Q Did you have occasion on that date to see the defendant ? A Yes, I did. Q What, if anything, do you recall at that time that you saw of the defendant ? MR. WILLIAMS: Objection, your Honor. THE COURT: I sustain the objection. BY MR. TOOMIN: Q Can you describe the defendant on that date, sir ? MR. WILLIAMS: Objection. THE COURT: I sustain the objection. Apparently out of a sense of utter' frustration, counsel discontinued his efforts at this point, and the Government lacking any evidence to counter did not cross-examine. Dr. Marohn’s appearance on the stand relating to his examination a full week more remote from the time of the crimes than that of Dr. Rothstein was accorded substantially similar treatment. Insofar as we can gather from- the record, the Government’s objection was based and sustained on the ground of relevancy, i. e., that the examinations were too remote from the date of the offenses, even though the incident on which count three was based occurred only two months before Dr. Rothstein’s examination and the most remote of the three incidents happened some seven months earlier. While there was no offer of proof made, it is fair to say that the district court evinced no interest in what the content of the answers might be. Compliance with the technical rules of evidence does not necessitate exercises in futility. In Wright v. United States, 102 U.S. App.D.C. 36, 250 F.2d 4 (1957) (en banc), the Government argued remoteness as a reason for exclusion. The court there brushed the contention aside with a footnote, 250 F.2d at 9, fn. 2: “Moreover, whether, despite time lapse between the offense and the examination, a psychiatric opinion can be formed as to the accused’s mental condition on the crucial date is a medical question within the competence of the qualified expert witness. The expert’s qualifications being conceded, the court should be reluctant to exclude from evidence any relevant opinion which the expert feels able to give on the basis of observed or hypothetical facts. Of course, the fact basis of the opinion is a circumstance to be considered by the trier of the facts in determining the weight to be given to the opinion.” In United States v. Davis, 411 F.2d 570 (5th Cir. 1969), it was held that the trial court did not err in admitting testimony by a doctor as to his analysis of the defendant’s mental state based on observation commencing six months after the offense. See also United States v. Westerhausen, 283 F.2d 844 (7th Cir. 1960). It is our holding that the district court clearly abused its discretion in not permitting the doctors to testify. We, in so holding, adopt the rule set out in II Wigmore on Evidence § 233, at 25 (3d ed. 1940), to the effect that since conditions of mental disease are more or less continuous, “ [i] t is therefore proper, in order to ascertain the fact of its existence at a certain time, to consider its existence at a prior or subsequent time.” In holding that the evidence was improperly excluded, we reject the Government’s attempt to distinguish the cases cited above on the grounds that in the present case there was no evidence of prior psychosis nor was there a claim of incompetency by the defendant. Neither of these factors impinge on the thrust of the cases on which we have relied. While the cutting off at the initial stage of the testimony of the professional expert witnesses is sufficient unto itself to dictate reversal, we do note that this phase of the case was merely one manifestation of what would seem to be a belief on the part of the district court that the defense was without merit. While the other errors on which we base this observation may not be repeated in the event the case is retried, they will be briefly adverted to as we have not lightly reached the conclusion noted above. Thus, the Government was successful in having its objection sustained to a detailed hypothetical question to Dr. Roth-stein on the basis that the question did not include all of the facts in evidence. The Government in support of its position relies on eases such as Harris v. Smith, supra, 372 F.2d at 812. It is no doubt true, as indicated in that case, that where a hypothetical question omits facts which so qualify the facts included that an answer would be misleading, the court should sustain an objection. We do not find the omitted facts as specified in the Government’s objection to be of the character to justify the application of the Harris rule. Thus, it was objected that the question did not reflect certain matters that the defendant had recalled specifically in his testimony in the case. These facts were all before the jury and could without difficulty have been the subject of cross-examination of the psychiatrist to ascertain whether they would cause him to change his opinion. The witness was a professional and if the facts were insufficient for him to express an opinion he could have so stated. If, however, he did express an opinion in response to the question and the Government thought the facts were insufficient or that he would express a different opinion if other established facts had been in the question, it, of course, would have been free to utilize these facts in cross-examining him. The Government in essence was insisting upon putting into the question all evidentiary facts having any relationship to the issue before the court. Harris, supra, 372 F.2d at 812, expressly recognized that this is not necessary. We think the better view is that if the question does not omit facts of such significance as to cause the answer to be misleading and if it includes enough that the expert can give an opinion, it is not necessary that all material facts be included. The safeguards lie in cross-examination. II Wigmore, supra, § 682, at 807, and 1970 Pocket Supplement at 309. McCormick on Evidence § 14, at 34 (2d ed. 1972). We also note that the Advisory Committee’s Note on Rule 705 of the proposed Rules of Evidence for United States Courts and Magistrates, 56 F.R.D. 183, 285 after referring to the extensive criticism of the hypothetical question, indicates that the expert need not on direct examination disclose the underlying facts or data on which his opinion is based unless the judge requires otherwise. After the objection was sustained and counsel had been told by the court, “This is your last chance,” an effort was made, at rephrasing the question. The effort covers ten pages of the transcript. Then, “MR. WILLIAMS: Objection. “THE COURT: I sustain the objection.” Following this nonilluminating colloquy, the court recessed over the noon hour. At the afternoon session, the following occurred: MR. TOOMIN: Yes, if the Court please. There was an objection prior to the recess for lunch and the Court sustained the objection. At this time I would again ask the grounds of the objection of the Government. THE COURT: You may state the grounds. MR. WILLIAMS: The grounds are the form of the question, the fact that the witness is asked to assume facts not in evidence in answer to the question. THE COURT: I would say that is a fair statement and an accurate one of the objection, and a valid objection, or they are valid objections. MR. TOOMIN: Your Honor, I would further ask for more specificity as to the facts which were stated in the hypothetical which are allegedly not in evidence. THE COURT: You keep referring to things as facts. Facts are not found, sir, to be facts until the tryers of the facts find them to be facts. MR. TOOMIN: I am aware of that, your Honor. I am merely saying that as to the assumed facts in the hypothetical— THE COURT: You keep referring to facts. If I am trying the facts, if I am the tryer of the facts in a non-jury case, they are not facts until the testimony is in and then relying on the evidence, oral or documentary, if any, they become facts. You know the Federal Rule provides for the submission of proposed findings of facts and conclusions of law. The jurors are the finders of the facts and have the responsibility for finding the facts. The responsibility for finding the facts is vested in the jury. They are not facts, evidence is not considered facts, until it is demonstrated by the evidence. The mere fact that a witness says something doesn’t make it a fact. Bring in the jury, Mr. Marshal. The trial then resumed and the effort at putting a hypothetical question was abandoned, the “last chance” having not made the grade. On appeal, the Government favors this court, as it did not the court or defendant below, with what it, now at least, found objectionable in the question, being that it included as a factor “having in mind your examination [of the defendant] as you have testified.” Since the doctor was not allowed to testify to very much the factor does not seem of great significance. Also by its terms the question seems to limit the fact to that to which the doctor had testified, which, of course, was a fact in evidence. Even if this had been construed to refer to all that the doctor had learned in his examination, most of which, as we have indicated, were not facts in evidence, it strikes us that a fair trial could have been accomplished by a simple specification of the erring portion and by directing the doctor to answer the question with that particular fact eliminated from his consideration. While a district court judge is under no duty to conduct a refresher course in the rules of evidence for counsel, he presumably is an interested participant in the quest for truth. We would not quickly fault a trial judge for not permitting an endless succession of long, improperly put questions, but here, if this was all the Government had in mind, and it is all that has been related to us on this appeal, fairness would seem to have indicated a quick excision and permitting the question to be answered. We, of course, do not know what included premising facts the court thought were not in evidence. Finally, Alden contends that there was reversible error in the court’s refusal to allow lay witnesses to give an opinion as to his sanity at a time contemporaneous with the offenses where such witnesses had known defendant over a period of many years. The two lay witnesses were a Reverend Vernon and his wife. Vernon was a minister of a Chicago church and a public school teacher. The Government on this appeal counters Alden’s contentions by averring there was no error because in the discretion of the trial court the witnesses did not have a proper foundation or sufficient opportunities to observe Alden. It perhaps is arguably correct as to whether a foundation was actually laid when we note in the record that objections, without statement of reasons, were successively sustained to questions to Reverend Vernon as to whether in connection with his church duties he had had occasion to counsel Alden, whether he had had occasion to observe him in 1970, and whether he had had occasion to see him during the month of November 1970. There are two phases of the present matter. First, there is the question of lay witnesses testifying as to their observations of the person in question without the expression of an opinion as to mental capacity. Here the trial court should be liberal in admission, as any acts, conduct, declarations, spoken words, appearance, and manner of speech on the part of the person involved would be relevant to the issue. Even brief observation would not exclude the evidence but merely go to its weight, Mason v. United States, 402 F. 2d 732, 738 (8th Cir. 1968), cert. denied, 394 U.S. 950, 89 S.Ct. 1288, 22 L.Ed.2d 484 (1969). The second phase of the matter involves the expression of an opinion by the lay witness. Here we are of the opinion, with which the Government apparently agrees, that the opinion can only be expressed where the witness has been qualified by sufficient association with an opportunity to observe the subject, Mason, supra, 402 F.2d at 739. The basic fault in the present case is that Alden was not permitted through the doorway of establishing the foundation. Even if he had been permitted to do so, and we do note that it was in evidence that Reverend Vernon had been given a power of attorney by Alden and had known him as a friend for a great many years and had known him well in church functions, it is apparent from the record that the opportunity for his expressing an opinion would not have been accorded. We refer as illustrative of the basis of our belief in this respect to one final extract from the transcript: BY MR. TOOMIN: Q Reverend Vernon, based upon your associations with the defendant over the last twenty years, and based upon your experiences as both teacher and minister and your work in counseling people and associating with those who have been mentally ill in the past, do you have an opinion as to whether on June 5, 1970, the defendant Charles Alden Boyd was— MR. WILLIAMS: I am going to object at this time to the leading form of the question, your Honor. I believe we are still on direct examination. THE COURT: Yes, this is direct examination. You are asking a clearly leading question, a question that suggests the answer. While I believe that I am required to let you complete your question, and you may complete it, I shall then sustain the objection to it. You may not ask questions, the answers to which are suggested by the form of the question. BY MR. TOOMIN: Q Do you have an opinion, sir, as to whether on November 5, 1970, the Defendant Charles Alden Boyd was capable of knowing right from wrong ? MR. WILLIAMS: Objection. THE COURT: I sustain the objection. Without determining whether the question may or may not have been objectionable on other grounds, we note the objection was squarely placed and sustained on the ground that the question was leading. We cannot comprehend how a question which calls for a yes or no answer as to whether a person has an opinion is leading and suggestive of the answer. The defendant did make an offer of proof as to the Vernon testimony. With confessedly some amazement, we observe that the Government objected to the offer of proof and that this objection was sustained. In the state of the resulting record, it is scarcely surprising that the district court refused to give defendant’s proffered instruction on the issue of insanity although even here the evidence of the modus operandi of Alden might have suggested either that he was foolhardy or that he failed to have sufficient mental capacity to have been guilty of the crimes charged. We do not deem it necessary, however, either to analyze the proffered instruction or to determine whether there was a totality of factual evidence such as to justify the giving of an insanity instruction. We do not think it likely, if the case is retried, that the state of the record will present this particular problem. For the reasons we have set forth herein the judgment of the district court is reversed and the case is remanded for a new trial. Reversed and remanded. HASTINGS, Senior Circuit Judge. I concur only in the result reached by the majority in this case.

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NUCOR CORPORATION, Appellant, v. TENNESSEE FORGING STEEL SERVICE, INC., et al., Appellees. No. 72-1209. United States Court of Appeals, Eighth Circuit. Submitted Dec. 5, 1972. Decided March 14, 1973. Rehearing Denied April 17, 1973. Ernest S. DeLaney, Jr., Charlotte, N. C., for appellant. Hershel H. Friday, Little Rock, Ark., and John G. Rocovich, Jr., Roanoke, Va., for appellees. Before MATTHES, Chief Judge, and GIBSON and HEANEY, Circuit Judges. HEANEY, Circuit Judge. Nucor Corporation appeals from the denial by the District Court of its request that the defendants be enjoined from using construction plans allegedly copied from plans drawn by Nucor. Nu-cor also sought the return of the original plans and other property taken by the defendants White and Munn without permission. The trial court, D.C., 339 F.Supp. 1305, denied the plaintiff’s requests for relief, with one exception. It required Munn to return certain property to the plaintiff. We affirm with respect to the latter issue, but otherwise reverse. Nucor Corporation is a manufacturer of steel joists under the trademark Vulcraft for use in the building industry. It operates a number of joist manufacturing plants in the United States, including one in Grapeland, Texas. The construction plans for the Grapeland plant were drawn by Nucor employees at an estimated cost of $20,000. When the Grapeland plans were completed in the latter part of 1967, between fifteen and thirty sets of the plans were sent to White and he, in turn, sent them to contractors and subcontractors to obtain construction bids. White was employed by Nucor as Manager of Construction and supervised the construction of the plant. The plant was completed in 1968. In the fall of 1971, while White was still an employee of Nucor, he was asked by Munn, then President of Tennessee Forging, to have plans drawn for construction of a steel joist plant in Hope, Arkansas; the plant to be operated by Tennessee Forging. White agreed to have the plans drawn, and Munn agreed to pay him for his services. On November 22, 1971, White visited the Grapeland plant. He requested and was given a complete set of the Grape-land construction plans. He did not state why he wanted the plans, but was accompanied by Nucor’s President, with whom he discussed the planned construction of a Nucor plant in Indiana. In early December, White approached Gene K. King at the latter’s engineering .firm, presented him with Nucor’s Grape-land plant plans and requested that King design a joist plant, using the Nucor plans as a guide. He further instructed him to make certain modifications to the plans. King completed the plans and delivered them to White on January 12, 1972. A few days prior to the delivery, King learned from White that the plans were being drawn for Tennessee Forging. On January 14, 1972, White resigned from Nucor and opened his own consulting firm. Shortly thereafter, White and Munn firmed up their earlier understanding. They agreed that White would receive $2,700 for costs incurred by him in having the plans prepared, and that he would be retained as a consultant to Tennessee Forging at an annual fee of $25,000. Construction commenced in mid-January, 1972. Nucor initiated this action against the defendants on-February 21, 1972. It alleged that its common law copyright in the Grapeland construction plans had been infringed, and that White and Munn had breached their obligation as employees of Nucor not to disclose their employer’s trade secrets or other confidential information to competitors. Nu-cor requested injunctive and such other relief as might be appropriate. The trial court held that even if Nu-cor had a common law copyright in the Grapeland plans, it lost this copyright by general publication. It also held there had been no infringement of Nu-cor’s copyright because there were substantial differences between the Grape-land and Hope plans, and that there was no breach of a trust by White. It refused to enjoin construction of the building. On this appeal, Nucor contends that it had a common law copyright in its Grapeland plans, that it did not abandon this copyright or make a general publication of it, and that the defendant, White, infringed on this copyright. It also argues that White obtained the Grapeland construction plans because of his confidential relationship with Nucor, that he breached the obligation of trust he owed to Nucor, and that as a result, the defendant, Tennessee Forging, was unjustly enriched. Because the defendants have now completed the building, Nucor asks that we remand the matter to the District Court with instructions to that court to enjoin the defendants from further use of the plans, to require them to return the Grapeland plans to Nucor, and with further instructions to permit Nucor to amend its complaint to request damages from the defendants for the improper use of the plans and to proceed to trial on the issue of damages. The matter was tried below on the theory that Arkansas law controls. We accept that approach, but note that there is little Arkansas law directly on point. We are, thus, faced with the difficult task of attempting to determine how the Arkansas Supreme Court would decide the matter if it were presented to that court. In this task, we give special weight to the determination of local law by the trial court but, nonetheless, conclude that it erred. We do so out of a firm conviction that the Arkansas Supreme Court, if faced with this matter, would conclude that the defendants’ conduct did not meet the high standards required of corporate officers and managers in Arkansas, and that the plaintiff was entitled to relief from the defendants’ inequitable conduct. We also believe that the Arkansas Supreme Court would be inclined to follow the view of the law expressed in the cases we cite. The first question is whether Nucor had a common law copyright in the Grapeland plans. The plans consisted of approximately thirty sheets of detailed blueprints and shop drawings, which Nucor had designed in its engineering department in 1967 and which were followed in constructing the Grape-land plant. The trial court held in its opinion that: “The ‘roll of plans’ for the Grapeland plant was the property of NUCOR and NUCOR had a common law right of copyright in it. * * * ” This holding was correct. Architectural plans such as Nucor’s are protected by common law copyright. Nimmer, The Law of Copyright, § 26 (1967); Katz, Copyright Protection of Architectural Plans, Drawings, and Designs, 19 Law & Contemp.Prob. 224, 229 (1954). We reject the defendants’ argument that Nucor’s plans were so unoriginal that they were not entitled to protection. While the concept of a T-shaped building is not entitled to copyright protection, detailed plans and drawings of a specific building are. The trial court, however, found that Nucor lost its common law copyright protection through general publication. It stated that the following activities, when considered in their totality, constituted such publication: (1) Sending approximately thirty sets of plans to contractors and subcontractors because— (a) the plans contained no notice that they were confidential or limited as to circulation, (b) no deposits were required from the contractors or subcontractors, and (c) there was no requisite that they be returned. (2) Permitting any and all interested persons to see, visit and inspect the building in all stages of construction and the entire plant when in operation after construction was completed. (3) Distributing ten thousand catalogs and forty thousand annual reports containing aerial photographs of the exterior of the Grapeland plant. We reject the trial court’s holding.’ First, a distribution of plans to potential contractors and subcontractors for bidding purposes does not constitute general publication. See, Read v. Turner, 239 Cal.App.2d 504, 48 Cal.Rptr. 919, 40 A.L.R.3d 237 (1966); Ashworth v. Glover, 20 Utah 2d 85, 433 P.2d 315 (1967). This is true even though the plans are not marked confidential, are not required to be returned, and can be obtained without paying a deposit. Cf., Pressed Steel Car Co. v. Standard Steel Car Co., 210 Pa. 464, 60 A. 4 (1904). Second, an owner does not lose his common law copyright by permitting interested persons to view and inspect a building during and after construction. The trial court bolstered its contrary conclusion with the observation that: “->:- -x- * While competitors and members of the general public did not inspect specific building plans in connection with their touring of and observing the plants, the evidence reflects that there is nothing on the plans (and in particular nothing on the plaintiff’s plans for its Grapeland plant) which would not be readily apparent to any competitor or knowledgeable person touring or observing plaintiff’s plants.” We do not believe that displaying a building during or after construction, or publishing photographs of it, can be said to be the equivalent of publishing the building plans. While the observation of the building in person or through photographs may provide the basis for designing a similar building through a trained observer’s initiative, it cannot provide the excuse for copying from plans without permission. See, De Silva Construction Corp. v. Herrald, 213 F.Supp. 184 (M.D.Fla.1962); Edgar H. Wood Associates, Inc. v. Skene, 347 Mass. 351, 197 N.E.2d 886 (1964); Smith v. Paul, 174 Cal.App.2d 744, 345 P.2d 546, 77 A.L.R.2d 1036 (1959). Cf., Tabor v. Hoffman, 118 N.Y. 30, 23 N.E. 12 (1889). Third, the distribution of catalogs and annual reports — which included photographs of the exterior of the Grapeland plant — does not constitute a general publication of its plans. We believe that Shanahan v. Macco Construction Co., 224 Cal.App.2d 327, 36 Cal. Rptr. 584 (1964), relied on by the defendants, is inapposite. There, the plaintiff had distributed several thousand brochures to the public, in addition to newspaper and magazine advertisements, all of which contained detailed representations or reproductions of that plaintiff’s plans. Nucor merely included an exterior photograph of the plant in the cited publications. This did not amount to a general publication of its detailed plans. Finally, the activities — when viewed in their totality — do not constitute a general publication. The trial court’s alternative holding that even if there was no general publication, Nucor’s common law copyright was not infringed, is also in error. The court found that while the Hope and Grapeland plans were similar in some respects, they were substantially different in many other ways. It apparently believed that where there are substantial differences, infringement has not occurred. That view is in error. “In order to constitute an infringement * * it is not necessary that the whole or even a large portion of the book [plans] shall have been copied. It is sufficient if a material and substantial part shall have been copied, even though it be but a small part of the whole. * * * ” (Citations omitted.) Henry Holt & Co. v. Liggett & Myers Tobacco Co., 23 F.Supp. 302, 303 (E.D. Pa.1938). See also, Hedeman Products Corp. v. Tap-Rite Products Corp., 228 F.Supp. 630 (D.N.J.1964). We have carefully reviewed the record and find that the court’s conclusion that “the similarities are not of such nature as to be exclusive or protected to Nucor” is erroneous. Uncontroverted evidence shows that material sections of the Hope plans were exact reproductions of sections of the Grapeland plans and that there are other similarities in design and details. While the defendants could have designed and constructed a joist plant without the aid of Nucor’s plan, the fact remains that the defendants’ designer, King, used the Grapeland plans in producing the Hope plans, and the many similarities between the two sets of plans were the product of King’s copying and not the. product of independent design. The essence of the infringement is that the defendants “appropriat[ed] * * * the fruits of another’s labor and skill in order to publish [construct] a rival work [plant] without expending the time and effort necessary to achieve the same result independently * * Hedeman Products Corp. v. Tap-Rite Products Corp., supra at 634. The second question is whether White breached an implied obligation not to disclose Nucor’s plans to competitors. The trial court held no breach occurred because the plans were not trade secrets. However, we believe that the Arkansas Supreme Court suggested in Witmer v. Arkansas Dailies, 202 Ark. 470, 151 S.W.2d 971 (1941), that employees have a high duty not to disclose confidential information received by them as employees to competitors regardless of the fact that the information disclosed might not technically be considered a trade secret. See also, Raines v. Toney, 228 Ark. 1170, 313 S.W.2d 802 (1958). This view is consistent with that expressed in the Restatement (Second) of Agency, §§ 395 and 396 (1958). See also, Restatement of Torts, § 759 (1939). We think it is the correct view. The record strongly supports the conclusion that the Grapeland plans were confidential and that White breached the implied duty of an employee not to disclose confidential information to a competitor. It is replete with uncontradicted testimony by Nucor’s officials that the Grapeland plans were considered by the firm to be confidential information. While this testimony may be self-serving, the trial court found that visitors and competitors were not allowed to view the Grapeland plans. Indeed, it is clear that the only outsiders who were allowed to see the plans were those contractors and subcontractors who received sets of the plans for the sole purpose of submitting bids on the construction of the Grapeland plant. That disclosure would not destroy the confidential character of the plans as they were submitted to the contractors for the limited purpose of bidding. See, Pressed Steel Car Co. v. Standard Steel Car Co., supra. Furthermore, it is clear from the record that White had received copies of the plans solely by virtue of his position as a Nucor employee so that he might use them for the benefit of Nucor. He was never given permission to use these plans for the benefit of anyone but Nu-cor, and the record strongly suggests that such permission would not have been granted if he had sought it. The seriousness of White’s breach of trust is not lessened by the fact that King may have had the skill to prepare plans for the Hope plant without utilizing the Grapeland plans. As is cogently stated in Tabor v. Hoffman, supra 118 N.Y. at 37, 23 N.E. at 13: « * * * Even if resort to the patterns [plans] of the plaintiff was more of a convenience than a necessity, still, if there was a secret, it belonged to him, and the defendant had no right to obtain it by unfair means or to use it after it was thus obtained.” See also, Franke v. Wiltschek, 209 F.2d 493 (2nd Cir. 1953); Smith v. Dravo Corp., 203 F.2d 369 (7th Cir. 1953); Kalinowski, Key Employees and Trade Secrets, 47 Va.L.Rev. 583 (1961). We hold both that Nucor’s copyright was infringed and that White breached an implied duty not to disclose Nucor’s confidential information to a competitor. At the time Nucor served its complaint, only minimum construction had begun, and the proper disposition would have been to grant Nucor’s request for a permanent injunction. Dismissal of Nucor’s complaint was error. Now, the Hope plant is substantially completed, and to enjoin its construction would be futile. Yet as it is clear that Nucor has been wronged and that the defendants, White and Tennessee Forging, have benefited from this wrong, it is appropriate that Nucor be afforded the following relief : (1) That the defendants be permanently enjoined from making further use of Nucor’s Grapeland plans, and that they be required to return the Grapeland plans to Nucor. (2) That Nucor be permitted to amend its complaint to claim damages from the defendants for the fair value of the Grapeland plans, and that it be permitted to prove its damage in an appropriate proceeding. Affirmed in part, reversed in part, and remanded to the District Court for disposition consistent with this opinion. . Mr. Munn was employed as Vice President of Nucor and General Manager of its joist plant in Florence, South Carolina, between September, 1964, and February, 1971. Munn allegedly took Nucor’s steel joist designs and production time study and cost data when lie left that company. The District Court ordered Munn to return any property of Nucor that was in his possession. There is no cross appeal as to the propriety of that order. Munn thus entered into this appeal only with respect to the part he played in arranging for Nucor’s plans to be made available to Tennessee Forging Steel Service, Inc. . After Munn left Nucor in February of 1971, he was employed by Congaree Iron and Steel Company until September 21, 1971. He joined Tennessee Forging Steel Service, Inc., on October 1, 1971. Munn’s testimony reveals that even while he was employed by Congaree, he had discussions with White and two South Carolina businessmen concerning the possible construction of a steel joist plant somewhere in Arkansas. The Hope, Arkansas, location was apparently decided on in October, and construction was planned to begin in mid-January, 1972. . These modifications included the length and width of the plant, the dimensions of the bay areas, column sizes, truss design, and crane rail design. . In Larry Luke, et al. v. American Family Mutual Insurance Company, 476 F.2d 1015 (8th Cir. 1972), petition for rehearing en banc granted, December 27, 1972, Judge Lay stated: “Although this court gives special weight to the determination of local law by a federal district judge, a court of appeals cannot be irrevocably bound by a district judge’s choice of one of two or more alternative rules to follow in a diversity case. To hold otherwise would be to abdicate our appellate responsibility;.” (Footnote omitted.) . See, e. g., Raines v. Toney, 228 Ark. 1170, 313 S.W.2d 802 (1958). . The Arkansas Supreme Court has indicated on a number of occasions that in equity matters, a court must be a court of conscience and seek to afford relief which will do substantial justice to all. See, e. g., Whitaker & Co. v. Sewer Improvement District No. 1, 229 Ark. 697, 318 S.W.2d 831 (1958). . The prevailing law respecting the effect of publication upon common law copyrights was stated in Edgar H. Wood Associates, Inc. v. Skene, 347 Mass. 351, 197 N.E.2d 886, 892 (1964): “ * * * Only a general publication terminates a common law copyright. It is ‘such a disclosure, communication, circulation, exhibition, or distribution of the subject of copyright, tendered or given to one or more members of the general public,, as implies an abandonment of the right of copyright or its dedication to the public.’ * * * A limited publication is ‘one which communicates a knowledge of its eon-tents under conditions expressly or impliedly precluding its dedication to the public.’ * * * Further, to be general a publication must be such ‘ ‘ . . . as to justify the belief that it took place with the intention of rendering . . . (the) work common property.’ ” ’ * * * While the test is properly one of intention, it is clear that the unexpressed, subjective intention of the creator cannot be allowed to govern * * * ; rather the implications of his outward actions to the reasonable outsider are controlling.” (Citations omitted.) . We are convinced that the better view of the law and that which Arkansas would follow was correctly stated by Katz, Copyright Protection of Architectural Plans, Drawings and Designs, 19 Law & Pontempt.Prob. 224, 236 (1954) : “ * * * An architectural plan is a technical writing. It is capable of being copied only by similar technical writings, that is, by other plans, etc. A structure is the result of plans not a copy of them. It follows that building a structure and opening it to the public gaze cannot be a publication of its plans.” (Emphasis included and footnotes omitted.) See also, Nimmer, Copyright Publication, 56 Colum.L.Rev. 185, 197 (1956), where the author suggests: “ * * * . [A] sine qua non of publication should be the acquisition by members of the public of a possessory interest in tangible copies of the work in question.” (Emphasis included.) . “§ 395. Using or Disclosing Confidential Information “Unless otherwise agreed, an agent is subject to a duty to the principal not to use or to communicate information confidentially given him by the principal or acquired by him during the course of or on account of his agency or in violation of his duties as agent, in competition with or to the injury of the principal, on his own account or on behalf of another, although such information does not relate to the transaction in which lie is then employed, unless the information is a matter of general knowledge.” “§ 396. Using Confidential Information after Termination of Agency “Unless otherwise agreed, after the termination of the agency, the agent: # sk :H * * “(b) has a duty to the principal not to use or to disclose to third persons, on his own account or on account of others, in competition with the principal or to his injury, trade secrets, written lists of names, or other similar confidential matters given to him only for the principal’s use or acquired by the agent in violation of duty. . This Court, in a prior diversity case interpreting Arkansas law, quoted with approval the following statement from an annotation in 165 A.L.R. 1453, 1454: “ ‘The law is well settled that one of the implied terms of a contract of employment is that the employee will hold sacred any trade secrets or other confidential information which he acquires in the course of his employment, and that therefore an employee who has left his employment is under an implied obligation not to use trade secrets or other confidential information which he has acquired in the course of his employment, for his own benefit or that of a rival, and to the detriment of his former employer.’ ” Tlapek v. Chevon Oil Company, 407 F.2d 1129, 1133 (8th Cir. 1969). . In addition to that evidence, this conclusion is supported by Plaintiff’s Exhibit 12, a letter of June 17, 1966, from Nucor’s attorney to some of its former employees, which states that Nucor even at that point in time considered its blueprints and similar property to be proprietary information which could not be used by those former employees without written permission of the company. . The City of Hope, Arkansas, was joined in this suit solely to insure that an injunction could be issued against the proper party. The plaintiff concedes that the City has not engaged in any wrongdoing. We, therefore, affirm the trial court’s dismissal of the complaint as to it. On the other hand, there is evidence in the record indicating that Munn was a knowing and active participant in the scheme to obtain Nucor’s plans for Tennessee Forging. Under such circumstances, it is inappropriate to sustain the trial court’s dismissal of the action with respect to Munn. His liability will have to be determined on remand.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Dean WALLING et al., Plaintiffs-Appellants, v. BEVERLY ENTERPRISES, a California corporation, Defendant-Appellee. No. 71-1510. United States Court of Appeals, Ninth Circuit. April 9, 1973. John P. Hanrahan (argued), Los Angeles, Cal., for plaintiffs-appellants. Thomas H. McGovern (argued), William F. Rinehart, H. Stephen Cranston, MacDonald, Halsted & Laybourne, Los Angeles, Cal., for defendant-appellee. Before MERRILL, HUFSTEDLER, and CHOY, Circuit Judges. CHOY, Circuit Judge: Appellants (West Texas Shareholders), owners of all the shares of West Texas Medical Center, Inc. (West Texas), a Texas corporation, brought this action against Beverly Enterprises (Beverly), a California corporation, for alleged violations of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 781(b), and SEC Rule 10b-5, 17 C.F.R. § 240.10b-5, and for breach of contract. Federal jurisdiction is based solely on the securities law violations. The district court held that West Texas Shareholders had failed to state a claim for relief under federal securities law and therefore dismissed the action for lack of subject matter jurisdiction. The validity of this ruling is the sole issue presented on appeal. We reverse. The federal securities claim asserted by West Texas Shareholders arose from an agreement dated August 26, 1969, between Beverly and West Texas Shareholders, for an exchange of all of the common stock of West Texas for common stock of Beverly. The total value of the Beverly stock consideration, $2,700,000, was payable in one down payment and three annual installments. Each of the four payments was to have a fixed value of $675,000 and the number of shares to be issued representing each payment was to be determined by the average closing price of Beverly stock on the American Stock Exchange during the ten day trading period preceding the payment date of the installment. Thus, substantial fluctuations in the trading price of Beverly stock would have a significant effect on the consideration West Texas Shareholders were to receive. The arrangement, however, was never consummated because Beverly refused to proceed, claiming that it had received information that West Texas’s hospital building was in need of major repair and that it could not obtain a firm commitment from its own insurance carrier to include West Texas within its insurance plan. West Texas Shareholders attempted to accommodate Beverly, but the parties were unable to settle their differences and this suit was filed. In reviewing a dismissal of a complaint for failure to sufficiently allege jurisdiction, we must accept the allegations in the complaint as true. Vine v. Beneficial Finance Co., Inc., 374 F.2d 627 (2nd Cir.), cert. denied, 389 U.S. 970, 88 S.Ct. 463, 19 L.Ed.2d 460 (1967); 2A J. Moore, Federal Practice ¶ 12.08 (2d ed. 1972). Disregarding the inordinate verbiage in their amended complaint, West Texas Shareholders in substance allege that Beverly entered into the reorganization agreement with the intent not to perform its obligations unless it later determined that it was in its best interests to do so, and that Beverly intended to raise and did raise fictitious excuses for refusing to fulfill the agreement. Alternatively, West Texas Shareholders allege that Beverly executed the agreement with the intent to speculate on fluctuations of the price of its stock at the expense of West Texas Shareholders, and that Beverly executed the agreement with the intent of refusing to consummate the reorganization unless it could obtain additional concessions from them to which it was not legally entitled. West Texas Shareholders also allege that Beverly established a pattern in its acquisition program of entering into other reorganization agreements with stockholders of other corporations with only a limited intention of performing. West Texas Shareholders contend that the above actions constitute acts, practices, or a course of business which operated as a fraud or deceit upon them under § 10(b) and Rule 10b(5). We must decide whether entering into a contract to sell securities with only a limited intention of performing is a fraud cognizable under § 10(b) and Rule 10b-5 and whether the allegations of fraud in this complaint are sufficiently well pleaded. We hold that the district court erred in dismissing this action. At the outset we note that “[s]ection 10(b) must be read flexibly, not technically and restrictively. Since there was a ‘sale’ of a security and since fraud was used ‘in connection with’ it, there is redress under § 10(b), whatever might be available as a remedy under state law.” Supt. of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 12, 92 5. Ct. 165, 169, 30 L.Ed.2d 128 (1971). “And the fact that the transaction is not conducted through a securities exchange or an organized over-the-counter market is irrelevant to the coverage of § 10(b).” Bankers Life, supra at 10, 92 S.Ct. at 168. Likewise “[n] either § 10(b) nor Rule 10b-5 contains any language which would indicate that those provisions were intended to deal only with fraud as to the ‘investment value’ of securities . . . ” A. T. Brod & Co. v. Perlow, 375 F.2d 393, 396-397 (2nd Cir. 1967). Proceeding on the assumption that the allegations in the complaint are true, and that any ambiguities must be resolved in favor of the pleading, Gillibeau v. City of Richmond, 417 F.2d 426, 430 (9th Cir. 1969), it seems clear that West Texas Shareholders have stated a claim which the district court had jurisdiction to entertain. Entering into a contract of sale with the secret reservation not to fully perform it is fraud cognizable under § 10(b). We think the case at bar is governed by the rationale expressed in Perlow, supra and Commerce Reporting Co. v. Puretec, Inc., 290 F.Supp. 715 (S.D.N.Y. 1968). Perlow involved an action by a broker against his customers to recover the losses suffered by the broker when the customers refused to pay for securities they had ordered but which had dropped in price. The broker alleged that the customers placed buy orders with the intent of paying for the securities only if the market value increased. The Second Circuit found that this was a fraudulent scheme. In direct accord with Perlow and perhaps more in point is Puretec, where the plaintiffs alleged that the defendant contracted to sell defendant’s stock to plaintiffs without any intention of consummating the deal if they could obtain a better price and terms from someone else. The court found that properly pled such allegations were sufficient to support a § 10(b) claim. Beverly, however, contends that the district court properly dismissed the action because the complaint does not sufficiently allege fraud in that it fails to meet the requirements of F.R.Civ.P. 9(b) because no acts, words or other conduct are alleged showing its intent or state of mind at the time of the execution of the agreement. Rule 9(b) requires that the circumstances constituting fraud must be stated with particularity. But “[r]ule 9(b) does not require nor make legitimate the pleading of detailed evidentiary matter.” 2A J. Moore, Federal Practice ¶ 9.03, at 1930 (2d ed. 1972). Nor does Rule 9(b) require any particularity in connection with an averment of intent, knowledge or condition of the mind. It only requires the identification of the circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations. Trussell v. United Underwriters, Ltd., 228 F.Supp. 757, 774 (D.Colo.1964); Gottlieb v. Sandia American Corp., 35 F.R.D. 223, 224 (E.D.Pa.1964). Therefore, while mere conclusory allegations to the effect that defendant’s conduct was fraudulent in violation of Rule 10b-5 are insufficient, Shemtob v. Shearson, Hammill & Co., 448 F.2d 442, 444 (2nd Cir. 1971), here West Texas Shareholders have done much more. They have stated the time, place and nature of the alleged fraudulent activities. The fraud was entering into the August 26, 1969 agreement with only a limited intention of performing. This is a sufficient averment. 2A J. Moore, Federal Practice ¶ 9.03, at 1925-28 (2d ed. 1972). The circumstances constituting the alleged fraud have been pled with sufficient definiteness to advise Beverly of the claim it must meet. Rekeweg v. Federal Mutual Insurance Co., 27 F.R.D. 431, 434 (N.D.Indiana 1961), aff’d on other grounds, 324 F.2d 150 (7th Cir. 1963), cert. denied, 376 U.S. 943, 84 S.Ct. 798, 11 L.Ed.2d 767 (1964). However, we want to make it clear that as the court in Perlow, supra, said, West Texas Shareholders have not proven that Beverly’s failure to consummate the agreement constituted a device or artifice to defraud. Not every breach of a stock sale agreement adds up to a violation of the securities law. Whether there is actionable fraud or a mere breach of contract depends on the facts and circumstances developed at the trial or on a motion for summary judgment. The pleading rules, designed to avoid and reduce long and technical allegations, are necessarily supplemented by procedures including summary judgment which enable a party to have a judgment in a relatively short time if there is actually no bona fide claim presented. Beverly is at liberty to avail itself of these procedures and thereby seek to avoid what otherwise might be protracted litigation. Perlow, supra, 375 F.2d at 398. Moreover, if the federal claim is dismissed prior to trial, the state claims should be dismissed as well so that federal jurisdiction will not be abused. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Lanning v. Serwold, 474 F.2d 716 (9th Cir., 1973). Reversed and remanded. . In pertinent part, Section 10(b) provides : “It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange— * # Si* ❖ ❖ (b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.” . The rule provides: “It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, (a) To employ any device, scheme, or. artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (o) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person in connection with the purchase or sale of any security.” . The breach of contract claims are included under the doctrine of pendent jurisdiction. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). . It should be noted that Beverly’s stock has in fact fluctuated widely. In September, 1969 the stock was selling at approximately $27 per share. Since then it has traded for as high as $45 per share and as low as $9 per share. . There is a sufficient contractual relationship so that West Texas Shareholders have standing as purchasers or sellers under the rationale of the “aborted purchaser-seller” cases. Mount Clemens Industries, Inc. v. Bell, 464 F.2d 339, 342 (9th Cir. 1972). . “It has been the law under the mail fraud statute ever since a Supreme Court decision in 1896 [Durland v. United States, 161 U.S. 306, 16 S.Ct. 508, 40 L.Ed. 709] that ‘to promise what one does not mean to perform, or to declare an opinion as to future events which one does not hold, is a fraud.’ ” 3 L. Loss, Securities Regulation 1436—47 (1st ed. 1961); accord, Keers and Co. v. American Steel and Pump Corp., 234 F.Supp. 201, 203 (S.D.N.Y.1964). . Rule 9(b) provides: “Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.” . We note that Beverly’s intent at the time it entered the agreement may be proven by reference to subsequent events.

f2d_476/html/0398-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

ESTATE of Martin M. MELCHER, etc., Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. ESTATE of Martin M. MELCHER, etc., Petitioners-Appellees, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant. Nos. 71-1650, 71-1651, 71-2377 and 71-2378. United States Court of Appeals, Ninth Circuit. March 20, 1973. Hilbert P. Zarky (argued), of Mitchell, Silberberg & Knupp, Los Angeles, Cal., for petitioners-appellants. Janet R. Spragens, Atty. (argued), Thomas L. Stapleton, Meyer Rothwacks, Attys., Scott P. Crampton, Asst. Atty. Gen., Tax Div., Dept, of Justice, Washington, D.C., for respondent-appellee. Before DUNIWAY and HUFSTEDLER, Circuit Judges, and ZIRPOLI, District Judge. The Honorable Alfonso J. Zirpoli, United States District Judge for the Northern District of California, sitting by designation. OPINION ZIRPOLI, District Judge. Appellants Doris Day Melcher and the estate of her deceased husband, Martin M. Melcher, appeal parts of a Tax Court decision assessing tax deficiencies for the years 1953 through 1956 and finding an overpayment for the year 1957. In those years Martin Melcher and his wife filed joint tax returns, which included income and deductions claimed on account of a tax avoidance scheme, a Livingstone-type transaction, in which the taxpayers claimed deductions for large' interest payments for an alleged indebtedness incurred in connection with the “purchase” of Federal Land Bank Bonds, and claimed a capital gain at the time the bonds were sold. This court has consistently held that in a Livingstone-type transaction there is no real purchase of bonds, no genuine indebtedness incurred, and consequently, no deductible interest expense created. See Cahn v. Commissioner, 358 F.2d 492 (9th Cir. 1966); Williams v. Commissioner, 323 F.2d 656 (9th Cir. 1963); MacRae v. Commissioner, 294 F.2d 56 (9th Cir. 1961), cert. denied, 368 U.S. 955, 82 S.Ct. 398, 7 L.Ed.2d 388 (1962); Kaye v. Commissioner, 287 F.2d 40 (9th Cir. 1961). Appellants concede that the Tax Court properly disallowed use of any expenses associated with this scheme as interest deductions pursuant to § 23(b) of the Internal Revenue Code of 1939 or § 163(a) of the Internal Revenue Code of 1954. They argue, however, that the Tax Court erred in not granting post-trial motions seeking to raise the issue that the out-of-pocket expenses in the transaction are deductible as a theft loss, and in holding that the out-of-pocket expenses are not deductible as a capital loss. 1. Theft-loss Deduction After the death of Martin Melcher in April, 1968, disputes arose between Doris Day Melcher and Jerome Rosenthal, the attorney who represented the Melchers in the Tax Court, concerning alleged mismanagement of the Melchers’ financial affairs, breaches of fiduciary relationships, and improper representation of the Melchers’ interest in the Tax Court. Subsequent to the trial in the Tax Court, but before entry of the Findings of Fact and Opinion, Doris Day Melcher dismissed Rosenthal and engaged present counsel. Following entry of the Tax Court opinion, motions were filed asking the court to reopen the proceedings to allow appellants to assert a theft-loss deduction for out-of-pocket expenses incurred in the transaction pursuant to Nichols v. Commissioner, 43 T. C. 842 (1965). We do not hold that Nichols was correctly decided. We need not reach that question, because even if it were, reversal would not be required here. The motions and accompanying affidavits alleged that Rosenthal was guilty of misconduct in arranging this Livingstone-type transaction for the Melchers, and that Rosenthal purposely chose to omit a Nichols theft-loss claim in order to prevent discovery of his misconduct. The motions first asked that the Findings of Fact and Opinion be modified so as to allow the theft loss for the year 1953 on the basis of the existing record. The motions also requested an opportunity to present further evidence regarding the theft loss for the years 1954 through 1956, and for the year 1953 if the motion to modify were denied. Reopening the hearing for the latter three years, but not for 1953, was necessary, appellants argued, because prior to 1954 theft losses could be deducted in the year sustained, but after 1954, they have had to be deducted in the year discovered. Compare Int.Rev.Code of 1939 § 23(e) with Int.Rev.Code of 1954 § 165(e). The Tax Court initially responded to the motions by requiring that appellants lodge proposed amendments to their petitions and file a short memorandum outlining the number of witnesses and exhibits that would be presented if the matter were reopened, and estimating the number of days of further trial that would be necessary. Thereafter, the Tax Court denied the motions, and later denied a motion to reconsider. Appellants argue that the Tax Court abused its discretion in refusing to reopen the proceedings. A motion to reopen and hear further evidence is addressed to the sound discretion of the Tax Court, and a denial of such a motion will not be reversed on appeal in the absence of extraordinary circumstances showing a clear abuse of discretion. See Henry Van Hummell, Inc. v. Commissioner, 364 F.2d 746, 751 (10th Cir. 1966), cert. denied, 386 U.S. 956, 87 S.Ct. 1019, 18 L.Ed.2d 102 (1967); Mensik v. Commissioner, 328 F.2d 147, 151 (7th Cir.), cert. denied, 379 U.S. 827, 85 S.Ct. 55, 13 L.Ed.2d 37 (1964). The court readily agrees with appellants that the judiciary must be sympathetic to claims that an injustice has been perpetrated because an attorney has breached his fiduciary duty to his client, and in a proper case a failure to reopen a hearing to consider such a claim might constitute abuse. In the present case, however, the Tax Court’s decision not to reopen cannot be reversed, because appellants have failed to show that further hearings would have changed the result. See ARC Realty Co. v. Commissioner, 295 F.2d 98, 107 (8th Cir. 1961). The Nichols case does not make a theft-loss deduction available to every taxpayer disappointed by the court’s conclusion that sham interest payments in a Livingstone-type transaction are not deductible. See Dooley v. Commissioner, 21 T.C.M. 1633, 1646 (1959), aff’d, 332 F.2d 463 (7th Cir. 1964). Rather, the taxpayer who seeks to salvage even this tax advantage must present “credible evidence that the form of the transaction was of critical importance to [him], and that [he] entered into it only after having been deceived . . as to its nature.” Nichols v. Commissioner, 43 T.C. at 887. Martin Melcher’s testimony shows that this is not such a case; he testified that he relied totally on his attorney, made no attempt to understand the transaction, and had no knowledge of the details of the transaction or the applicable tax provisions. In view of this evidence, it was incumbent upon appellants to proffer evidence in their motion to reopen the proceedings that would overcome the implication of Melcher’s testimony that no theft loss resulted and would show that appellants were denied an opportunity to present the issue because of Rosenthal’s conflict of interest. It is unclear from the pleadings appellants filed precisely what evidence they intended to produce if the hearing were reopened. Assuming that they were offering to prove everything- suggested by the pleadings, the evidence still would not have shown that they are entitled to a Nichols theft-loss deduction. Most of the evidence would tend to show only that Rosenthal was guilty of misconduct in other matters he handled for the Melchers; this, of course, does not establish that they experienced a theft in the course of this transaction. The only evidence specifically relating to this transaction is that Rosenthal arranged a Livingstone-type transaction for himself at a lower rate of interest, and thus, a lower out-of-pocket expense, than the rate of interest he arranged for Melcher. The higher interest rate, however, would have resulted in tax savings for Melcher several times the additional out-of-pocket expense if the tax scheme had succeeded. The difference, therefore, may reflect nothing more than the different tax deduction needs of Melcher and Rosenthal; it would not prove a theft by Rosenthal. In short, even assuming the truth of all the evidence appellants may have intended to proffer, the total record still indicates that Rosenthal recommended that Melcher take advantage of what, at the time, was believed by many competent tax attorneys to be a “tax loophole,” and Melcher accepted the advice. Cf. Miles v. Livingstone, 301 F.2d 99, 101-102 (1st Cir. 1962). Melcher was certainly no stranger to tax-avoidance schemes, as indicated by his testimony concerning the other issue before the Tax Court. On the basis of the evidence offered, the Tax Court could not conclude, as required for a Nichols theft-loss deduction, that Melcher “parted with money on the strength of . false representations and [was] thus swindled . . . within the meaning of the criminal law.” 43 T.C. at 887. Hence, it was not error for the Tax Court to deny the motions to reopen the hearing. Although it is unclear, appellants also seem to argue that the court ought to hold that a theft-loss deduction should be allowed for the year 1953 even though appellants were not permitted to amend their pleadings to raise the issue in the Tax Court. This court clearly has the power to do this. See MacRae v. Commissioner, 294 F.2d 56, 59 (9th Cir. 1961), cert. denied, 368 U.S. 955, 82 S.Ct. 398, 7 L.Ed.2d 388 (1962). The evidence, however, as discussed above, does not show that appellants are entitled to a theft-loss deduction. 2. Capital-Loss Deduction Relying on MacRae v. Commissioner, supra at 60, appellants argue that the Tax Court erred in holding that the out-of-pocket expenses are not deductible pursuant to § 1234(a) as a loss attributable to the failure to exercise an option to acquire property. There is some question whether MacRae, which involved provisions of the Internal Revenue Code of 1939, can be applied to the provisions of the Internal Revenue Code of 1954. See Lewis v. Commissioner, 328 F.2d 634, 639-640 (7th Cir. 1964); Brown v. United States, 396 F.2d 459, 465-467, 184 Ct.Cl. 410 (1968); Treas. Reg. 1.1234-1(f) (1959). This issue, however, need not be resolved here, because appellants have not established a right to a deduction even if MacRae is still viable. In MacRae the court held that the taxpayer had entered into a contract that allowed him at any time to call in the notes from the lendor, cancel the indebtedness, and stop the running of interest. Had he done so, MacRae would not have lost his out-of-pocket expenses, so the court concluded that the loss was deductible pursuant to § 117(g)(2) of the Internal Revenue Code of 1939. In the present case, Melcher had only the limited right to terminate the transaction by giving notice to the lendor no less than ten nor more than thirty days prior to October 1, 1957, which was the maturity date of both the note and the purportedly pledged bonds. If Melcher gave the required notice, at that time the bonds would have been sold and the market price applied to the payment of the note. By exercising the option, Melcher could have avoided the interest on the balance owed under the note between the date he acted and October 1, a period of no more than thirty days. This savings, however, would have been offset by the difference in the sale price of the bonds on that date and the sale price on October 1, because near to the time that Federal Land Bank Bonds are to be redeemed at par by the issuer their sale price is approximately the par value less interest for the period between the sale date and the redemption date. Thus, the only possible loss that might have resulted from the failure to exercise the option would be a de minimus interest differential — an amount far less than Melcher’s out-of-pocket expenses. If such a small loss had been incurred, appellants made no attempt to prove what it was, and they are, therefore, not entitled to deduct it. See Factor v. Commissioner, 281 F.2d 100, 110 (9th Cir. 1960), cert. denied, 364 U.S. 933, 81 S. Ct. 380, 5 L.Ed.2d 365 (1961); Tax Court Rules of Practice 32. Affirmed. . Section 23. Deductions from Gross Income. [1939 Code.] In computing net income there shall be allowed as deductions: . . . . (b) Interest. All interest paid or accrued within the taxable year on indebtedness, except on indebtedness incurred or continued to purchase or carry obligations (other than obligations of the United States issued after September 24, 1917, and originally subscribed for by the taxpayer) the interest upon which is wholly exempt from the taxes imposed by this chapter. . Section 163. Interest. [1954 Code.] (a) General Rule. — There shall be allowed as a deduction all interest paid or accrued within the taxable year on indebtedness. . Section 23. Deductions from Gross Income. [1939 Code.] In computing net income there shall be allowed as deductions : ... . (e) Losses by individuals. In the case of an individual, losses sustained during the taxable year and not compensated for by insurance or otherwise— . . . (3) of property not connected with the trade or business, if the loss arises from fires, storms, shipwreck, or other casualty, or from theft. . Section 165: Losses. [1954 Code.] (a) General Rule. — There shall be allowed as a deduction any loss sustained during the taxable year and not compensated for by insurance or otherwise. (e) Theft Losses. — For purposes of subsection (a), any loss arising from theft shall be treated as sustained during the taxable year in which the taxpayer discovers such loss. . Section 1234. Options to Buy or Sell. [1954 Code.] (a) Treatment of f/ain or loss. — Gain or loss attributable to the sale or exchange of, or loss attributable to failure to exercise, a privilege or option to buy or sell property shall be considered gain or loss from the sale or exchange of property which has the same character as the property to which the option or privilege relates has in the hands of the taxpayer (or would have in the hands of the taxpayer if acquired by him). (b) Special rule for loss attributable to failure to exercise option. — For purposes of subsection (a), if loss is attributable to failure to exercise a privilege or option, the privilege or option shall be deemed to have been sold or exchanged on the day it expired.

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Hussein DEMIRAGH, on behalf of himself and all others similarly situated, Plaintiff-Appellee, and Mildred Freeland, Intervening Plaintiff-Appellee, v. Joseph DeVOS, Director of Welfare, City of Stamford, Defendant-Appellant. No. 431, Docket 72-1421. United States Court of Appeals, Second Circuit. Argued Feb. 15, 1973. Decided April 10, 1973. Ronand M. Schwartz, Asst. Corporation Counsel (J. Robert Bromley, Corporation Counsel, Stamford, Conn., of counsel), for defendant-appellant. Roger E. Koontz, Stamford, Conn., for plaintiff-appellee and intervening plaintiff-appellee. Before FRIENDLY, Chief Judge, OAKES, Circuit Judge, and DAVIS, Judge. Of the United States Court of Claims, sitting by designation. OAKES, Circuit Judge: The City of Stamford, Connecticut, appeals from a judgment of District Judge Clarie declaring Municipal Ordinance 219 unconstitutional on its face, as in violation of the equal protection clause. The ordinance’s title states its purpose: DECLARING IT A HEALTH HAZARD WHEN VACANCY RATE IN HOUSING FALLS BELOW 2% AND THAT ANY PERSON BECOMING A STAMFORD RESIDENT DURING THIS TIME SHALL NOT BE ELIGIBLE FOR WELFARE BENEFITS, NOR SHALL BE ABLE TO RECEIVE SUCH BENEFITS. We agree with Judge Clarie that, because the ordinance did not have state wide effect, 28 U.S.C. § 2281 did not require the convening of a three-judge court, D.C., 337 F.Supp. 483. Moody v. Flowers, 387 U.S. 97, 101-102, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967). We agree also that the durational residence requirement is invalid under Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); King v. New Rochelle Municipal Housing Authority, 442 F.2d 646 (2d Cir.), cert. denied, 404 U.S. 863, 92 S.Ct. 113, 30 L.Ed.2d 107 (1971); and Rivera v. Dunn, 329 F. Supp. 554, 556 (D.Conn.1971) (three-judge court), aff’d summarily, 404 U.S. 1054, 92 S.Ct. 742, 30 L.Ed.2d 743 (1972) . The intervening plaintiff Freeland moved from Maryland, where she was receiving public assistance, to Stamford in October of 1971 to live near her daughter. On December 1, 1971, she was notified by the Director of City Welfare that she was ineligible under the ordinance to receive further payments. She would otherwise have been entitled under §§ 17-3a and 17-273 of the Connecticut General Statutes to receive them. At the time of filing her intervening complaint on January 14, 1972, she was a patient at a Stamford hospital suffering from a back injury, without assets and unable to support herself. The trial court received evidence from the Director of City Welfare to the effect that Stamford had since the ordinance was adopted on August 15, 1971, at all times had a housing vacancy rate below the 2 per cent prescribed by the ordinance. The City Health Director testified to a housing crisis, with inadequate numbers of units, and overcrowding. The Mayor testified as to Stamford’s problems with people “flocking in” from New York City and claimed that the ordinance had a health, not a fiscal, purpose. But the trial court found, and we wholly agree, that “[t]he City failed to establish a necessary connection between the ordinance’s one-year residency classification, as a qualifying condition precedent to establishing eligibility for welfare assistance, and the claim that its objectives were to alleviate a health hazard, because of inadequate local housing.” The only connection that the City really advances, to quote from its brief, is that to allow in-migrants who are in need of welfare benefits to continue to locate in Stamford, completely without any limitation when there is insufficient housing available for them, would create and is creating a severe and discriminatory hardship to those residents already living in the City, but who have been unable to find decent housing. Under any approach we might take to equal protection analysis, the Stamford ordinance cannot be sustained by this state interest. We say this without in any way failing to recognize that the right to travel abridged by the Stamford ordinance has only recently been reaffirmed as a “fundamental” one, requiring the showing of a “compelling” state or local interest to warrant its limitation. Graham v. Richardson, supra; Shapiro v. Thompson, supra. See also Rivera v. Dunn, supra (summary affirmance). Indeed, only the other day the “fundamental right”“compelling state interest” formulation was referred to with approval in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); see also Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). One may inquire whether, under the circumstances that the City relies upon, hardship to present residents, all “in-migrants” should not be excluded from Stamford, not just those “who are in need of welfare benefits. . . . ” But even under the narrower test recently explicated in our own Boraas v. Village of Belle Terre, 476 F.2d 806 (2d Cir., 1973), at 813, whether absent a “fundamental right” the legislative classification is in fact substantially related to the object' of the statute, the statute would fail. See also Gunther, The Supreme Court, 1971 Term, Foreword, In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1 (1972). As mentioned above, the classification drawn by the statute is grossly undermclusive in terms of the statute’s objective. Unless one assumes that welfare payments are so substandard as not to permit locating- “healthful” Stamford housing and that all non-recipients of welfare can afford and find such “healthful” -Stamford housing, the rationality of the classification between those who require welfare and those who do not becomes even more doubtful. When added to this questionable classification is another classification between those who apply for welfare after residing in Stamford for one year and those who do so after residing for a shorter period of time, the “rationality” of the ordinance totally escapes one; why not make the standard for eligibility ten year’ residence, or twenty, since each higher limit would presumably do more to eliminate Stamford’s housing crisis. Given the nature of the classification made by the Stamford ordinance, it is doubtful whether it would survive even the “minimum rationality” test of the old equal protection analysis, Shapiro v. Thompson, supra, 394 U.S. at 638, 89 S.Ct. 1322; King v. New Rochelle Municipal Housing Authority, supra, 442 F.2d at 649, much less any higher standard. The City, presumably not with tongue in cheek, argues that “A man who is provided with food and clothing by a municipality but is fortuitously deprived of decent shelter is the unwitting victim of municipal despair.” Wherever the remedy may lie, through federal housing aid, revenue sharing, making other cities and areas more attractive to welfare recipients, changing the welfare system, providing more jobs and job training for the indigent, or doing some thing else, it is constitutionally impermissible for a municipality to wall welfare recipients out. We could say more accurately perhaps that if Stamford’s ordinance were upheld other cities would, we suspect, quickly follow suit with similar ordinances, to wall welfare recipients in the ghettos and urban slum areas where they now live. This court, unless and until directed otherwise by higher authority, will have no part of this, however much we may sympathize with the plight or dilemmas of the cities confronted with the problem of housing the poor. Judgment affirmed. . The text of the ordinance is as follows: Whenever the vacancy rate in Housing as reported by the Director of Health, shall fall below 2%, it shall be deemed to constitute a health hazard ; and that any person who shall apply for welfare assistance who has not resided within the City of Stamford for one year prior to the date of said application, shall be ineligible for any assistance during the existence of said Health Hazard. However, the Department of Public Welfare shall be authorized to provide necessary temporary assistance or care until arrangements are made for said applicant’s return. This Ordinance shall take effect upon its adoption. Stamford, Conn., City Ordinance No. 219 (Aug. 15, 1971). . The original plaintiff’s case was mooted rather ironically by his leaving Stamford for Texas. . This was substantiated by figures showing that during the fiscal year ended June 30, 1971, Stamford with an estimated population of 111,300 people had total relief expenditures of $271,970; hospital costs of $77,000; and administrative and operating expenses of $185,000. Since the State reimbursed the city $337,000 the net cost to the city was only $196,970. . One might also inquire whether Stamford liad taken adequate steps to provide suitable housing. Cf. Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968). Furthermore, as Judge Clarie pointed out below, Stamford has many other resources, including health and building codes, to insure the quality of its current housing supply. However unpleasant it may be to those in charge of city affairs to contemplate, there are other ways of meeting the problems of an urban area with an “in-migration” of poor people than erecting a wall around the city to exclude them, either by a “health” ordinance, as here, or by exclusionary zoning or otherwise. See Note, The Equal Protection Clause and Exclusionary Zoning After Valtierra and Dandridge, 81 Yale L.J. 61 (1971). . ■ Income group clustering of the poor in the central city is a common phenomenon of the demography of American metropolitan areas and suburban land use restrictions may aggravate the phenomenon. See Branfman, Cohen & Trubeck, Measuring the Invisible Wall: Land Use Controls and the Residential Patterns of the Poor, 82 Yale L.J. 483 (1973). The Stamford ordinance here, were it widely adopted, would be another device insuring the isolation of the urban poor. As the Mayor of Stamford here conceded, as bad as Stamford’s housing situation was, it still was far better off than New York City’s.

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FARMERS’ AND MERCHANTS’ BANK, a corporation, Appellant, v. UNITED STATES of America, Appellee. No. 72-1883. United States Court of Appeals, Fourth Circuit. Argued Jan. 8, 1973. Decided April 6, 1973. Thomas N. Chambers, Charleston, W. Va. (Benjamin G. Reeder, Morgantown, W. Va., Louis S. Southworth, II, Charleston, W. Va., Reeder & Shuman, Morgantown, W. Va., and Jackson, Kelly, Holt & O’Farrell, Charleston, W. Va., on brief), for appellant. Charles R. Burnett, Atty., Tax Div., U. S. Dept, of Justice (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Bennet N. Hollander, Attys., Tax Div., U. S. Dept, of Justice, Paul C. Camilletti, U. S. Atty., and James F. Companion, Asst. U. S. Atty., on brief), for appellee. Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and WIDENER, Circuit Judge. ALBERT V. BRYAN, Senior Circuit Judge: A refund of 1964 Federal income taxes was sued for by the Farmers’ and Merchants’ Bank of Morgantown, West Virginia in April 1972, but the District Court sustained the Government in denying the tax benefit on which the bank’s claim rested.- The bank appeals. Its claim, amounting to $36,410.20 plus interest, arose in the computation of the bad debt deduction allowed for income tax purposes. 26 U.S.C. § 166 (Internal Revenue Code of 1954.) Since 1948, with the permission of the Secretary of the Treasury, the bank had utilized the uniform ratio method of calculating its reserve for bad debts, pursuant to 26 U.S.C. § 166(c). The formula for establishing the annual addition to this reserve, it was stipulated, “involved the application of an average loss experience factor for the determination of the ratio of losses to outstanding loans for the taxable year”. For 1964 this factor when based upon the ratio of outstanding loans thought by the bank to be eligible produced for appellant bank $61,066.91, and this sum was therefore deducted from its taxable income. The bank here contends that under a mistaken belief of their ineligibility, loans known as “Federal funds sold”, explained in stipulation 8, infra, amounting to $1,200,000 were omitted from the aggregate outstanding loans in computing its 1964 bad debt reserve; that if this amount had been included, the reserve would have been $133,909.31 instead of $61,066.91, a difference of $72,842.40; and the bank would have then been assessable with $36,410.20 less in taxes — the amount now in suit. The point of this appeal is that the Government in 1964 let some other banks include Federal funds sold as outstanding loans in calculating their bad debt reserve, but without reason denied this privilege to the appellant. It does so by a 1968 Internal Revenue ruling, infra, that allows the benefit of such an inclusion only to a bank which claimed it in its return for a taxable year prior to November 1968. Thus, it refused appellant this privilege because it was not asserted in its 1964 return but, rather, by way of a timely claim for refund filed in 1966. The facts of the case were agreed by the parties and, essentially, the bank’s claim evolved from the following provisions of the stipulation: “8. In March, 1964, officials of Mellon National Bank and Trust Company outlined a procedure to officials of plaintiff known in banking circles as ‘Federal funds sold.’ ‘Federal funds sold’ is a term used to describe a loan from one bank to another which is collaterally secured by United States Government securities owned by the borrower. The loans are normally of short duration, from one to three days in most cases. The purpose of the transaction, in the case of the borrower, usually is to meet reserve requirements and, in the ease of the lender, is to loan excess reserve funds. . “10. The first transaction in ‘Federal funds sold’ by plaintiff occurred in April, 1964. The amount of Federal funds loaned to Mellon during 1964 ranged from a low of $0 to a high of $2,000,000 on October 6, 1964. On December 31, 1964, the bank had outstanding a ‘Federal funds sold’ loan to Mellon in the amount of $1,200,000. “11. ... It was the plaintiff’s intention to add to its bad debt reserve for 1964, and to deduct in arriving at its taxable income for such year the maximum amount allowable under the method or formula prescribed by [the Government formula to establish the reserve]. “16. If this Court should determine that the plaintiff is entitled to include the aforesaid ‘Federal funds sold’ loan of $1,200,000 to Mellon among its eligible loans outstanding for purposes of the formula computation, the plaintiff’s maximum addition to its reserve for bad debts for 1964, is $133,909.31, or a sum of $72,842.40 larger than the maximum addition as computed in its 1964 income tax return. “19. On or about April 9, 1966, the plaintiff filed with the District Director of Internal Revenue for the District of West Virginia, Parkersburg, West Virginia, a claim for refund of 1964 income taxes. . “20. By letter dated January 27, 1969, the District Director of Internal Revenue, Parkersburg, West Virginia, transmitted to plaintiff a copy of an examination report respecting plaintiff’s 1964 and 1965 Federal income tax returns. . . . Said examination report denies plaintiff’s claim for refund of 1964 Federal income taxes in the amount of $36,421.20. The reason given for disallowance of the claim was stated . . . to be that ‘Recently the National Office [of the Internal Revenue Service] ruled that the claim for refund, is not allowable based on Revenue Ruling 68-630.’ .” (Accent added.) The inequity of the Government’s position appears on a reading of Revenue Ruling 68-630. It is said to “clarify” the bad debt reserve computation. The ruling, in effect, declares that the course pursued by the appellant in not including ‘Federal funds sold’ was always the correct course. Nevertheless, the clarification indulges the “incorrect” banks to retain their gains while declining on a procedural point to accord the appellant enjoyment of the same indulgence. The unfairness is compounded by the stipulated fact that 68-630 was promulgated more than two and one-half years after the refund claim was filed — the rules of the game were changed at the end of the contest. Revenue Ruling 68-630 in its apt parts provides as follows: “SECTION 1. PURPOSE. The purpose of this Revenue Ruling is to clarify certain questions regarding the eligibility of items for inclusion in the loan base by banks using the uniform. reserve ratio method of computing annual additions to reserves for bad debts. “SECTION 8. MONEY MARKET INVESTMENTS. Accordingly, it is held that banks using the uniform reserve ratio method .. . must exclude from the loan base upon which annual additions to a reserve are calculated the following money market obligations: (1) ‘Sales’ or ‘loans’ of Federal funds irrespective of the purchaser or borrower. . “SECTION 10. EXTENT OF APPLICATION WITHOUT RETROACTIVE EFFECT. The position stated in this Revenue Ruling clarifies certain questions that have arisen concerning computation of the loan base but does not represent a change in a previously published position of the Internal Revenue Service. It would, therefore, normally be applied to all open taxable years. However, in view of the nature of the deduction for additions to a reserve for bad debts, over-all tax deductions to taxpayers here involved would not be significantly affected by the timing of the application of this Revenue Ruling. Therefore, under the authority of section 7805(b) of the Code, the position stated herein will not be applied by the Service to deductions claimed for taxable years ending on or before November SO, 1968, to the extent that such deductions were based on inclusion of the following items in the loan base (accent added): (4) ‘Sales’ or ‘loans’ of Federal funds. . “The amount of the deduction for an addition to the reserve for bad debts for a taxable year must be based upon the amount contemporaneously entered on the taxpayer’s books during the taxable year, or as soon as practicable after the close of the taxable year, and cannot be subsequently increased.” The Government attempts to salve its discrimination by embracing the discretion vested in the Secretary of Treasury by 26 U.S.C. § 7805 as follows: (b) Retroactivity of regulations or rulings. — The Secretary or his delegate may prescribe the extent, if any, to which any ruling or regulation, relating to the internal revenue laws, shall be applied without retroactive effect.” But here the Secretary abused his discretion, for “The Commissioner cannot tax one and not tax another without some rational basis for the difference”. Justice Frankfurter concurring in United States v. Kaiser, 363 U.S. 299, 308, 80 S.Ct. 1204, 1210, 4 L.Ed.2d 1233 (1960). No rational basis is found here for differentiating between the appellant and the other banks. Fortunately, such use of discretion is reviewable, Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 184, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957), and we decry it. The Government would excuse the arbitrary retroactivity of revenue Ruling 68-630 by saying that it was not a departure from prior rulings, since the Government had never given permission to any bank to use Federal funds sold in calculating a bad debt reserve. But this assertion dissolves on scrutiny. The Government had approved the very method of computing the bad debt reserve followed by the appellant and over the years had deliberately withheld disapproval of Federal funds sold as eligible loan-predicates for fixing bad debt reserves. It was quite aware of this practice and unequivocally tolerated it with full knowledge of its prevalence. That this acquiescence was accepted by the banks, as well as acknowledged by the Government, is evidenced by the need for clarification emphasized in the ruling and by the anointment of the practice for years prior to November 1968. Such a reversal of position, as applied to this taxpayer, is too inequitable to be permissible. Cf. Exchange Parts Company of Fort Worth v. United States, 279 F.2d 251, 254, 150 Ct.Cl. 538 (1960). Added argument against the appellant relies upon the last paragraph in Section 10 of Ruling 68-630, supra, providing that the reserve cannot be “subsequently increased” after the close of the taxable year. True, the appellant does endeavor to increase its 1964 reserve, but not by the injection of a later accrued sum. The addition is simply a correction of previous figures. Surely this is not the kind of increase forbidden in the ruling, for either the Government or the taxpayer may rectify an earlier erroneous return. This again demonstrates that the appellant’s claim was rejected because it was made in the form of a refund request instead of in an original deduction. Finally, the Government suggests that the instant claim should fail because the benefit accruing to the “incorrect” banks will be “washed out in* later years” and that all banks will then be on the same footing. But this is no ground for withholding from this taxpayer the asserted deduction, for the Government’s suggestion is no more than a prediction ■ — one that did not prove true between 1964 and 1968. Moreover, the argument totally ignores appellant’s right to equal treatment for the specific tax year involved. Our mandate will vacate the judgment at trial and direct the District Court to order the refund for which the Farmers’ and Merchants’ Bank of Morgantown sued. Vacated with directions. . See Mimeograph 6209, C.B. 1947-2, 26; modified Rev.Rul. 54-148.

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UNITED STATES of America, Plaintiff-Appellee, v. Frank RAGANO, Defendant-Appellant. No. 72-2594. United States Court of Appeals, Fifth Circuit. April 9, 1973. Michael L. Kinney, St. Petersburg, Fla., John R. Parkhill, Edward M. Waller, Jr., Tampa, Fla., for defendant-appellant. John L. Briggs, U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee. Before BELL and THORNBERRY, Circuit Judges, and GROOMS, District Judge. GROOMS, District Judge: The appellant was convicted on Count III, of a three count indictment, of a violation of 26 U.S.C.A. § 7206(1). Count III related to appellant’s 1968 return and charged that on June 16, 1969, appellant knowingly made a false declaration in his claim to have sold 20 shares of Two Seasons, Inc. stock for $230,022.20 that he had purchased for $50,000.00, and that the income of $180,022.20 was properly treated as a long term capital gain. In late 1964 and early 1965 appellant assisted S. A. Rizzo in obtaining a $5,000,000.00 loan from the Pension Fund of the Teamster’s Union. The loan was to be used to buy and develop 700 acres of land just north of Miami-, Florida. The land which had an appraisal value of $9,500,000.00 was purchased for $3,500,000.00. Two Seasons, Inc. was organized by Rizzo for the purpose of acquiring, holding and developing the land. The property purchased, together with the balance of the loan proceeds, was transferred by Rizzo to the corporation. On January 3, 1967, a certificate representing 20 shares of Rizzo’s stock in Two Seasons, Inc., a 40% interest, was transferred to appellant, who on the same date executed a non-interest bearing demand note to Rizzo in the amount of $50,000.00. On March 24, 1967, appellant’s stock certificate was cancelled, and reissued to Rizzo, ostensibly for use by Rizzo as collateral. On November 6, 1967, the shares were reissued to appellant, who claimed that during the interim the stock was in effect held in trust for him by Rizzo. On January 12, 1968, appellant transferred his stock to Rizzo in consideration of the cancellation of the $50,000.00 note of January 3, 1967, and Rizzo’s assumption of appellant’s indebtedness to the County National Bank of North Miami Beach in the amount of $68,364.08, to the Central Bank of Tampa in the amount of $51,108.12, and to Two Seasons, Inc. in the amount of $60,550.00, a total of $230,022.20. Beginning in 1965 and over a period of approximately three years Two Seasons paid fees and expenses and made loans to or on behalf of appellant of $252,332.09. However, no amount was paid on the principal sum of $50,000.00. The Government’s basic charge stems from its claim that the real consideration for the issuance of the twenty shares of Two Seasons stock was not a $50,000.00 debt evidenced by the note but fees earned by appellant in procuring the loan from the Pension Fund. A careful review of the evidence covering more than eleven hundred pages of the transcript, leads us to the definite conclusion that the sufficiency of the evidence as to appellant’s guilt was for the jury under the guiding principles so frequently announced. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680; Gordon v. United States, 438 F.2d 858, 867 (5th Cir.). In reaching this conclusion we could not overlook appellant’s testimony at a hearing in June 1968, before the Shevin Committee of the Florida legislature in the course of its investigation into organized crime, in which he testified that the Two Seasons stock was a part of his fee — “a combination of attorney’s fees and I am in hope of finder’s fees.” Nor appellant’s deposition of October 7, 1968, taken in connection with a libel suit that he filed against Time, Inc., wherein he deposed that he had achieved ownership of the stock, “partially for legal services and partially as a finder’s fee.” Nor his second deposition on December 26, 1968, in the same case wherein he again deposed to substantially the same statement; nor his testimony in this ease as follows: ■ “[B]ut the ultimate result was that I gave him $50,000 note for the stock, and that’s how I was able to acquire the stock, regardless of how I labeled it. Q. Regardless of how you labeled it, sir? A. That’s right. If you recall. Mr. Dempsey, I said this time and time again, it is a combination of finder’s fee and legal fees. I left that up to my accountant. I left it up to the IRS Agent. But when you come down to it, whether after all that is said and done, I never would have gotten the stock without the $50,000 note.” This answer appears to sum up appellant’s construction of the consideration for the stock as well as his qualifications of prior statements. Likewise, on the issue of wilfulness and intent we have not overlooked appellant’s evidence that he laid the whole transaction before the agents preceding the filing of his 1968 return and that he cooperated with them in supplying whatever information that he had in his possession. The fact that appellant bared his breast to the investigating agents and extended his cooperation would not exempt him from prosecution and the penalties of the law, if he, nevertheless, proceeded to do what the law proscribed. Counts I and II of the indictment were grounded upon appellant’s alleged failure to report the receipt of the value of the stock as income for 1967, and in making a false statement as to same, respectively. The jury found appellant not guilty on these counts. He contends that there is such repugnancy and inconsistency between the not guilty verdicts on Counts I and II and the guilty verdict on Count III, that Count III cannot stand. Throughout the trial appellant took the position that the stock had no value on the date of its acquisition in January 1967; that its enhancement from zero to the sum for which it was sold in 1968 resulted from the development of the property during that period. Under this theory the jury could well have found that there was no value to report for 1967, or, at least, could have held that there was ample doubt about the value. Other assumptions could be, but will not be, indulged as a basis of the jury’s verdict on Counts I and II. The court did not err in denying appellant’s motion for judgment of acquittal on the ground of inconsistency of verdicts. Dunn v. United, States, 284 U.S. 390, 52 S.Ct. 40, 76 L.Ed. 520; United States v. Panzavecchia, 446 F.2d 1293 (5th Cir.). Appellant insists that there was error to reverse in the action of the court in admitting the testimony of Revenue Agent Greenwald of an alleged admission by appellant as to Rizzo’s testimony before the Florida State Beverage Commission to the effect that appellant had earned the stock “as a finder’s fee, an attorney’s fee.” The issue was first presented in the course of the prosecution’s opening statement and was represented to the court as being an admission by appellant of Rizzo’s testimony. Over objection the court ruled that appellant having responded to the statement, the statement of the agent became “res gestae of admission.” The question was again presented in the course of the direct examination of appellant’s accountant, Andretta. The court stated that anything that appellant said in- the course of the interview with the agent would constitute “an admission exception to the hearsay rule,” and that it was necessary in order to determine the extent of the admission to have not only what appellant said but what was said to appellant. The court further stated that he would instruct the jury that it could not consider the comments made by Rizzo to prove the truth of the assertions of Rizzo, but that the jury could consider the comments in the context of appellant’s response. When Greenwald took the stand, counsel for appellant reminded the court that he had objected to the conversation in the October 1968 conference as to what Rizzo had testified to when the accountant was called. The court replied by instructing the jury as to the consideration to be given to the conversation, the statement of Rizzo, and the response of appellant, following which Greenwald testified that: “A. I told Mr. Ragano that I was aware of testimony that Rizzo had given to the State Beverage Department, wherein Mr. Rizzo had testified that Ragano had received the stock for services rendered. I asked Mr. Ragano whether that was true, whether they were legal fees. Mr. Ragano replied no, it was not for services rendered in that he had bought the stock for $50,000 note. He said the books of Two Seasons would bear this out. “Q. Did he indicate if he was aware of Mr. Rizzo’s testimony ? “A. He said he was aware of it.” Greenwald also testified with respect to a further conference in May 1969, when Mr. Adair, an agent now deceased, was present: “A. Mr. Adair pointed out to Mr. Ragano that the statements of Rizzo that the stock had been given to Ragano as a legal fee, and that there was no other consideration. Ragano said that he did not know why Rizzo had testified this way, but it was not true.” Defendant’s witness Whyte was cross-examined as to a telephone conversation between him and Greenwald which related to the witness’s awareness that Rizzo had testified before the Beverage Commission that the stock had been given to appellant for services rendered. In his closing argument the prosecutor put the matter flatly as follows: “[A]nd we know from the evidence that Mr. Rizzo testified that the payments of stock which had been made to Mr. Ragano in January of 1967 were payments to Mr. Ragano for legal fees.” Appellant neither tacitly nor expressly admitted the alleged statement by Rizzo. On the contrary he flatly denied the truth of any such statement. Certainly in the face of his denial, appellant’s knowledge of Rizzo’s testimony can hardly be construed as an admission. Where the witness’s total response adds up to a clear-cut denial, even any theory of implied admission is not available. McCormick, Handbook of the Law of Evidence, at 528 (1954 Ed.); Com. v. Twombly, 319 Mass. 464, 66 N.E.2d 362, and People v. Wysocki, 267 Mich. 52, 255 N.W. 160. “A flat denial [is] in no sense an admission.” Twombly, supra. The confrontation clause of the Sixth Amendment is not'violated as long as “the declarant is testifying as a witness and subject to full and effective cross-examination.” California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed. 2d 489. But here Rizzo did not testify, and, of course, was not subject to cross-examination. In short the prosecutor succeeded in getting Rizzo’s testimony before the jury and in exploiting it in his closing argument without calling Rizzo as a witness. He now seeks to avoid the consequences of his action by a resort to the harmless error rule and the court’s instruction that the jury could not consider what Greenwald related as having been said by Rizzo as going to the truth of Rizzo’s statement. Successfully getting Rizzo’s statement before the jury was not the result of a passing incident but of a persistent and sustained effort. The court’s instruction anticipated an inculpatory response by appellant that did not materialize, and was consequently misdirected. In the recent case of United States v. Johnson, 5 Cir., 439 F.2d 885 (1971), where hearsay testimony was introduced solely to show that customs agents were on the lookout for defendant, and not to show the truth of what the informer said, and where the court accepted the ruling and instructed the jury accordingly, Judge Rives, speaking for this court, said: “The government next argues that the statements of the informer at most constituted harmless error under Fed.R.Crim.P. 52(a). Erroneous admission of evidence can often be corrected by appropriate jury instructions. Conner v. United States, 5 Cir. 1963, 322 F.2d 647. But before a constitutional error can be held harmless, the court must believe it harmless beyond a reasonable doubt. Chapman v. California, 1967, 386 U.S. 18, 22-24, 87 S.Ct. 824, 17 L.Ed.2d 705.” In Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476, the court ruled that it could not “accept limiting instructions as an adequate substitute for petitioner’s constitutional right of cross-examination,” in the context of a joint trial, where a co-defendant implicated petitioner in a written confession, but did not take the stand. In Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, where it was held that the trial court was in error in admitting the transcript of the testimony of an absent witness taken on a preliminary hearing when the defendant was without counsel, the court stated: “There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.” In Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790, involving a hearsay statement by a co-conspirator to the complaining witness some six weeks after transportation in violation of the Mann Act, the court stated: “It is contended that the statement attributed to the alleged co-conspirator was merely cumulative evidence, that without the statement the case against petitioner was so strong that we should hold the error harmless under 28 U.S.C. (1946 ed.) § 391. In Kotteakos v. United States, 328 U.S. 750 [66 S.Ct. 1239, 90 L.Ed. 1557], we said that error should not be held harmless under the harmless error statute if upon consideration of the record the court is left in grave doubt as to whether the error had substantial influence in bringing about a verdict. . . . We cannot say that the erroneous admission of the hearsay declaration may not have been the weight that tipped the scales against petitioner.” Barton v. United States, 263 F.2d 894 (5th Cir.), was a case involving the admissibility of an unsigned statement of a co-defendant given out of the presence of the defendant, Mitchell, and a motion for a severance. The court in reversing ruled: “The sole reliance for Mitchell’s protection was the court’s instruction to the jury, several times repeated, not to treat the statement as evidence against Mitchell. Considering the substance and terms of Barton’s statement, we doubt whether it was at all possible to carry out that instruction. To do so certainly would require twelve minds more perfectly disciplined than those of the average human jurors. * * * * * * “The Government argues that a separate trial for Mitchell would have made no difference in the outcome, because ‘Mitchell was bound hand and foot by the most awesome array of evidence imaginable, quite apart from the confession of Barton.’ We cannot, however, substitute ourselves for the jury, whose duty it was to pass upon Mitchell’s guilt or innocence.” See also, Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934. Appellant’s “admissions” with respect to the consideration for the stock were not unequivocal but qualified. The jury should have been permitted to consider their weight unburdened by inadmissible hearsay. We conclude there was error and that the evidence of guilt in this case was not so overwhelming as to render the error harmless, as was found by the Supreme Court in Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340, and by this court in Hoover v. Beto, 5 Cir., 467 F.2d 516, under the facts of those cases. Appellant challenges the action of the court in overruling his motion to strike the answer of witness Brock as to why appellant should have reported the receipt of the stock in his 1967 return. The witness answered: “Because this is the year that he received pay for services rendered in the form of stock.” Though the question and answer related primarily to the 1967 return involved in Count I, the answer went to the key issue involved in Count III — the crux of the Government’s charges against appellant in reporting the transaction as a long term capital gain rather than ordinary income. The Court is not unmindful of the modern trend to abandon the rule allowing experts to express an opinion upon ultimate issues when the opinion is otherwise admissible. The mere qualifying of a witness as an expert, Paschal v. United States, 306 F.2d 398 (5th Cir.), does not necessarily render his every conclusion immune from challenge. Experts “ought not to [be] asked or allowed to state their conclusions on the whole case.” United States v. Spaulding, 293 U.S. 498, 506, 55 S.Ct. 273, 277, 79 L.Ed. 617. “It is generally agreed that testimony of an essentially factual nature should not be predicated on the opinions, inferences and conclusions of others.” Paschal, supra. The Sixth Circuit in Kentucky Trust Co. v. Glenn, 6 Cir., 217 F.2d 462, had for consideration the claim that certain trusts had been created in contemplation of death. The question and the answer by the agent of the Internal Revenue Service were as follows: “ ‘Upon what facts or circumstances, did you base your determination that the Trust estates were part of Mr. Schmidt’s estate?’ The answer was: ‘Well, my determination was made by the fact that the Will, the Trust instruments and the life insurance policy assignments were all made at practically the same time.’ ” The court, in ruling that the trial court erred in overruling the objection, stated: “The testimony of the government witness as to why he made the determination to the effect that the trusts in question were made in contemplation of death invaded the province of the jury and permitted the witness to express his opinion as to the ultimate fact. The witness should not have been permitted to testify, in effect, why he believed the deceased made the trusts in contemplation of death. The testimony was incompetent and prejudicial.” The court erred in overruling appellant’s motion to strike. The court’s instruction on presumption of the knowledge of the law was not such as to constitute plain error under Rule 52(b), Fed.R.Crim.P. There was no objection to the charge. The first part of the instruction is identical to the charge before the court in Edwards v. United States, 334 F.2d 360 (5th Cir.), Note 3, and held to be not such plain error as to require a reversal. The last sentence properly submitted to the jury the question of appellant’s ignorance of the law as that question related to specific intent. The court’s action finds support in Wardlaw v. United States, 5 Cir., 203 F.2d 884, where it was held that whether the defendant acted under a bona fide misconception of income tax law in failing to report income was for the jury on the issue of knowledge and willfulness. Taking the court’s instruction as a whole, we likewise find no error in any failure of the court to define the essential elements comprising the offense charged in Count III. Appellant claims that he was denied a fair trial because of the cumulative effect of a series of prejudicial and unfair tactics by counsel for the Government. We have carefully considered these claims, and must frankly state that in certain particulars counsel went to the outer limits of legality. However, in those particulars the court was prompt and firm in its efforts , to eradicate any resulting prejudice; and in view of such efforts we are reluctant to and will not hold that it did not succeed in doing so. Although the court’s action in overruling the objections to the admission in evidence of the income tax returns of Rizzo and Two Seasons, Inc., was not challenged on this appeal, we, however, in the interest of trial economy deem it proper to direct attention to the decision of the Ninth Circuit in Greenbaum v. United States, 80 F.2d 113, 125, as to the correctness of such action. The judgment of conviction is reversed and the cause is remanded for a new trial. Reversed and remanded. THORNBERRY, Circuit Judge (specially concurring): I agree that the conviction should be reversed and the ease remanded for a new trial because the admission into evidence of Agent Greenwald’s report of Rizzo’s statement contravened the hearsay rule and the Confrontation Clause of the Sixth Amendment. Rizzo made the statement in question- — that Ragano had received the stock as “a finder’s fee, and attorney’s fee” — under oath before the Florida Beverage Commission in the course of applying for a liquor license. Since Ragano denied the truth of Rizzo’s prior-hearing statement when confronted with it, the statement was not an admission and should have been excluded under the hearsay rule. C. McCormick, Evidence, §§ 269, 270 (2d ed.1972). Because Rizzo was not subject to cross-examination by Ragano when he made the statement and did not testify at trial, his statement was likewise inadmissible under the Confrontation Clause. California v. Green, 1970, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489. Further, I agree that despite the district judge’s limiting instruction to the jury the constitutional error cannot be said to have been harmless beyond a reasonable doubt in the context of this case. Bruton v. United States, 1968, 391 U.S. 123, 135, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476; Chapman v. California, 1967, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Since our ruling on the hearsay-confrontation issue is sufficient to dispose of this appeal, I would not reach the other asserted errors. . “Any person who— (1) Declaration under penalties of perjury. — Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter; shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000, or imprisoned not more than 3 years, or both, together with the costs of prosecution.” . Much evidence was taken as to another note of July 16, 1965, executed by appellant to Rizzo in the amount of $50,000.00. Appellant claims that that note evidenced the purchase price of the 20 shares of stock, but that he was unable to borrow money to pay off the note and that Rizzo would not issue the stock; that he was informed that the note had been lost; that Rizzo wished a new note; that he agreed to give a new note if the stock was issued to him ; and that the January 3, 1967, note was executed and the stock issued pursuant to that understanding. . “It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it. United States v. Manton, 2 Cir., 107 F.2d 834, 839.” . “[I]n considering the sufficiency of the evidence we do not determine whether it establishes guilt beyond a reasonable doubt, but only whether the evidence would permit the triers of fact to find the defendants guilty beyond a reasonable doubt.” . Counsel for appellant stated that lie would object when the time came, in reply to which the court ruled that it was not necessary to object. . “THE COURT: Ladies and Gentlemen of the Jury, in telling you what transpired between himself, Mr. Greenwald, and the defendant in the form of conversation, it is anticipated that Mr. Greenwald is going to relate the conversation, and in relating the conversation ho will say some things that Mr. S. A. Rizzo told him in the defendant’s absence. In other words, during his conversation with the defendant, he may occasionally say, ‘Mr. S. A. Rizzo said such and such to me. and what do you have to say about that,’ or words to that effect. “Now, you may not consider what he relates, the witness relates as having been said by S. A. Rizzo out of the defendant’s presence. You may not consider that as going to the truth of the matter of the statement that S. A. Rizzo said, but you may consider the defendant’s response to those statements.” . See proposed New Federal Rules of Evidence, Rule 704 and note thereunder. . “It is not necessary for the prosecution to prove that the defendant knew that a particular act or failure to act is a violation of law. Unless and until outweighed by evidence in the case to the contrary, the presumption is that every person knows what the law forbids, and what the law requires to be done. However, evidence that the accused acted or failed to act because of ignorance of the law, is to be considered by the Jury in determining whether or not the accused acted or failed to act with specific intent, as charged.”

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Raymond L. HALL, Appellant, and Quaker City Industries, Inc., a corporation of New York, v. U. S. FIBER & PLASTICS CORPORATION, a corporation of New Jersey. No. 72-1212. United States Court of Appeals, Third Circuit. Argued Jan. 9, 1973. Decided April 5, 1973. Lawrence I. Lerner, Lerner, David & Littenberg, Newark, N. J., for appellant. Alfred P. Ewert, Morgan, Finnegan, Durham & Pine, New York City, Milton, Keane & DeBona, Jersey City, N. J., for appellee. Before McLAUGHLIN and VAN DUSEN, Circuit Judges, and GREEN, District Judge. OPINION OF THE COURT PER CURIAM: This is a patent infringement case involving an above ground swimming pool. Plaintiffs charged that similar pools manufactured and sold by defendant infringed their patent, which covered a certain type of walk-around deck surrounding the basic pool frame. The patent in suit was held by appellant Hall and was licensed exclusively to Quaker City Industries, Inc., the other plaintiff below. The district court, 341 F.Supp. 978, held plaintiff Hall’s patent invalid and not infringed by defendant U. S. Fiber and Plastic Corporation. Hall appeals only the question of invalidity and not non-infringement so that the portion of the decision pertaining to non-infringement became final. During oral argument, the attorney for appellee suggested that appellee had no interest in the matter since he had conclusively not infringed, and therefore could be in no way affected by any possible change in the validity holding on appeal. In that position appellee asserts that the appeal should be dismissed as moot, since no case or controversy existed between the parties, as is constitutionally required for this court’s jurisdiction. Considering all the circumstances, the panel recommended that each side submit supplemental briefs on the point of mootness, so that an accurate and fair decision could be reached. The parties have so complied. Appellant first contends that Electrical Fittings Corp., et al. v. Thomas & Betts Co., et al., 307 U.S. 241, 59 S.Ct. 860, 83 L.Ed. 1263 (1939) and Altvater et al. v. Freeman, et al., 319 U.S. 359, 63 S.Ct. 1115, 87 L.Ed. 1450 (1943) are similar to the appeal before us. They do enable this court to consider the validity of the suit patent. We disagree with appellant’s interpretations of the Thomas and Betts decisions because the case at bar is not only readily distinguished but should be. In Electrical Fittings, the court concluded that the contested patent there was valid but not infringed. The defendant appealed the validity holding which was, in effect, against his interests since in future litigation, that result could be res judicata against him. The Supreme Court’s opinion showed concern for this possible injustice to the plaintiff, and held that the defendants were entitled to have that portion of the decree eliminated. Therefore, the Court of Appeals had jurisdiction to hear the appeal and consider the decree of validity, for the purpose of doing complete justice to the defendants. See Electrical Fittings Corp., supra, 307 U.S. p. 242, 59 S.Ct. 860. In the present litigation the patent was declared invalid and not infringed and the appeal was by plaintiff on the question of validity. Therefore no injustice could be done even indirectly to the defendant as the entire decisión was in his favor. He did not appeal because he had nothing more to gain or lose by a change in the validity determination. The Altvater suit, like Electrical Fittings, involved a holding of patent validity, which had not been infringed. There, however, the alleged infringer counterclaimed, asserting the invalidity of the patent, and actively sought such a declaration. A judgment thereon, would then have been open to appeal, for there would still have existed an active controversy, defendant having established his continued interest by his counterclaim. That was not the situation in the present appeal as no .counterclaim of invalidity was ever entered. Therefore it is readily seen that the Electrical Fittings opinion does not control the particular problem in the instant appeal. Appellant admits in his brief, that our question in issue here has already been passed upon by a number of the circuits, which generally have decided that appeals of this type are moot and that the lower court judgment of patent invalidity will not be vacated. Cover v. Schwartz, 133 F.2d 541 (2 Cir. 1942); Scaramucci v. Universal Manufacturing Co., Inc., 359 F.2d 388 (5 Cir. 1966). Appellant questions what he alleges is the harshness of such holdings and cites Hayes Spray Gun Co., et al. v. E. C. Brown Co., 291 F.2d 319 (9 Cir. 1961) as standing for the proposition that circuit courts have jurisdiction to review holdings of patent invalidity under circumstances as are argued in this appeal. In Scaramucci v. Universal Mfg. Co., supra, the Hayes decision was criticized and it was pointed out how the Supreme Court, relying on Cover v. Schwartz, supra, determined in Altvater v. Freeman, 319 U.S. 359, 63 S.Ct. 1115, 87 L.Ed. 1450 (1943) “To hold a patent valid if it is not infringed is to decide a hypothetical case.” We agree with the Fifth Circuit that where no case or controversy exists, even in patent disputes such as this, a court of appeals is without jurisdiction and will not render an advisory opinion. It also seems strange that appellant should claim in the harshness of so holding, when to accept his theory and claim for jurisdiction, would cause appellee to be party to a cause which he has no interest whatsoever, and nothing at all to gain or lose. He would have no reason to spend time preparing a defense where he has nothing to defend against. This would obviously call for an advisory opinion by the court and would create unwarranted hardship to appellee. The harshness which appellant alleges could befall him because of the holding of invalidity, is based on his interpretation of Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, et al., 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), which concluded that a plaintiff patent owner may be collaterally estopped from asserting his patent in a second action before a second court where the patent has been found invalid in an earlier litigation. There are, of course, circumstances under which Blonder-Tongue would allow a second court to reconsider the validity of the same patent on appeal, depending upon whether the party against whom estoppel is sought had a full and fair opportunity to litigate his claim in the first action. (Blonder-Tongue, p. 347, 91 S.Ct. 1434). Whether the circumstances in the instant matter would dictate ¡.the invocation of the collateral estoppel doctrine in future litigation, we need not and cannot now determine. Blonder-Tongue deals exclusively with a second action before a second court. The case at bar is still the first action within the Blonder-Tongue doctrine. In Carter-Wallace, Inc. v. Otte, 474 F.2d 529 (2 Cir. 1972), Judge Friendly mentioned that whether the district court’s judgment below and this court’s dismissal of the appeal as moot will deprive the district court’s judgment of its collateral estoppel effect is a query for other courts where that effect can be asserted. This is not such a court. Appellant urges then, the possibility of harsh result to him versus the strong policy against advisory opinions and the unfair problems which would develop to appellee. Plainly the question is moot and this court has no right under the facts and law before us to attempt to pass upon it. This appeal as it stands presents no claim or controversy between the parties. It will be dismissed as moot. . We note that the Restatement of Judgments, § 69 (2), provides: “ § 69. EFFECT OF APPEAL OR INABILITY TO APPEAL. “(2) Where a party to a judgment cannot obtain the decision of an appellate court because the matter determined against him is immaterial or moot, the judgment is not conclusive against him in a subsequent action on a different cause of action.” See also comment d, page 317, of that section.

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HIRAM CLARKE CIVIC CLUB, INC., etc., et al., Plaintiffs-Appellants, v. James T. LYNN, Individually and as Secretary of the Department of Housing & Urban Development, et al., Defendants-Appellees, Libo, Inc., Intervenor-Defendant-Appellee. No. 72-1268. United States Court of Appeals, Fifth Circuit. April 3, 1973. Hellmut A. Erwing, O. K. Jerden, Houston, Tex., for plaintiffs-appellants. Anthony J. P. Farris, U. S. Atty., Jack Shepherd, Chief Asst. U. S. Atty., Theo W. Pinson, III, James R. Gough, Asst. U. S. Attys., W. Edwin Denman, Vernon E. Fewell, Houston, Tex., Kent Frizell, Asst. Atty. Gen., Edmund B. Clark, Larry G. Gutterridge, Attys., Dept, of Justice, Washington, D. C., for defendants-appellees. Before JOHN R. BROWN, Chief Judge, and MOORE and RONEY, Circuit Judges. Hon. Leonard P. Moore, Senior Circuit Judge of the Second Circuit, sitting by designation. RONEY, Circuit Judge: In this action appellants seek to enjoin the federal funding of a proposed low and moderate income apartment project in Houston, Texas. Appellants contend that the failure of the Department of Housing and Urban Development to file an environmental impact statement bars it from further funding of the project. The District Court denied injunctive and declaratory relief. We affirm, holding that the threshold determination made by HUD not to file an environmental impact statement under the National Environmental Policy Act of 1969, 42 U.S.C.A. § 4321 et seq. was not unreasonable and must therefore be upheld. See Save Our Ten Acres v. Kreger, 472 F.2d 463 (5th Cir. 1973). The proposed project against which this action is directed is a 272-unit apartment complex to be known as the Artistocrat Apartments and to be constructed on a fifteen acre tract near West Airport Boulevard and Hiram Clarke Road in Houston, Texas. The estimated cost of the project is some $4,181,330, and a loan to the private developer, approximately $3,763,200, is to be insured by HUD Under Section 236 of the National Housing Act, 12 U.S.C.A. § 1715z-l(j), which provides federal mortgage insurance for housing projects designed for low and moderate income residents. The apartments have an average value of $15,400 and the project contains courtyards, open spaces, children’s playgrounds, a swimming pool, and a 6,500 square-foot community center. Appellants, homeowners in the immediate area surrounding the site of the proposed apartments, initially opposed the project through local zoning boards and other governmental administrative bodies. Finding no success, appellants then challenged the HUD funding decision. On appeal, as in the District Court, they contend first, that HUD failed to comply with its own regulations implementing NEPA and second, that, even if HUD’s actions complied with its own regulations, the requirements of the Act itself remain unfulfilled. I. Under NEPA, Congress has established a system of procedures for federal agencies to follow in making decisions that might have an impact on the environment. Section 102(2) (C) of the Act, 42 U.S.C.A. § 4332(2) (C), which sets out the concept of the environmental impact statement, requires that “all agencies of the Federal Government shall (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment” a detailed statement on the proposed action’s envionmental effects. This rather general legislative language received explication in the interim guidelines of April, 1970, published by the Council on Environmental Quality, the agency established by Title II of NEPA, 42 U.S.C.A. §§ 4341-4347, to serve as a research, resource, and advisory body in the Executive Office of the President of the United States. These guidelines became final, without important alteration, in April, 1971. Section 3 of the guidelines directed federal agencies to promulgate their own procedures for “identifying those agency actions requiring environmental statements . . . Council on Environmental Quality, Guidelines § 3, 36 Fed.Reg. 7724 (April 23, 1971). Section 5(a) (ii) defines “action” as including projects supported in whole or in part by federal loans, subsidies, or other forms of funding assistance. Guidelines, supra, § 5(a) (ii), 36 Fed. Reg. 7724 (1971). These CEQ guidelines are merely advisory, because the CEQ does not have the authority to prescribe' regulations governing compliance with NEPA. Greene County Planning Board v. Federal Power Commission, 455 F.2d 412 (2d Cir. 1972). Following these CEQ guidelines, however, HUD published Circular 1390.1 setting forth the detailed procedures that it would employ for screening all HUD projects to insure its compliance with the Act as to each project. HUD Circular 1390.1 established certain “thresholds” that are used to isolate those projects that may be major federal actions significantly affecting the quality of the human environment. A project passing the first threshold is then given special environmental consideration and study. This means that the project must be thoroughly investigated, and the HUD office involved must either file a “negative statement,” indicating that approval of the project application is consistent with established HUD policy and standards and that it would have no significant adverse effect on the environment or, if unresolved environmental issues or concerns remain, must draft and circulate a detailed environmental impact statement. “Special Environmental Clearance” for projects and major changes: That additional review of environmental consequences which shall be applied to larger size projects or projects with greater environmental significance (including all projects above thresholds in Appendix A) and to projects which are controversial with regard to whether or not HUD and other appropriate environmental policies and standards are being met, or precedent-making in the sense that important environmental circumstances are not treated in HUD’s central office guidance documents. For this purpose, the HUD Environmental Clearance Worksheet (see Appendix B) is suggested. All special environmental clearances shall result in either (a) a negative statement signed by the head of the HUD field office (or his designated Environmental Clearance Officer), indicating that approval of the application is consistent with established HUD policy and standards and would have no significant adverse effect on the environment, or (b) if there are still unresolved environmental issues and concerns, the drafting and circulating ot a 102(2) (C) environmental statement. A negative statement or a 102 (2) (C) environmental statement shall become part of the application file and shall accompany the application through the HUD review and decision process. The “threshold concept” used to screen proposed applications of the kind under review here establishes the rule that proposed apartment projects of one hundred or more units require a “Special Environmental Clearance.” Additionally, paragraph 3 of HUD Circular 1390.1, Appendix A, states that “controversial” or “precedent-making” HUD projects must be given “Special Environmental Clearance.” The precise question before us, then, is whether HUD complied with the mandate of NEPA and with its own guidelines. The standard for reviewing HUD’s decision has been explicated by this Court in our recent opinion in Save Our Ten Acres v. Kreger, supra. In SOTA, we held that the decision of a federal agency not to file an environmental impact statement, when reviewed by the courts, should be tested by a stricter “reasonableness standard,” instead of by the well-settled rule that, in the absence of fraud, administrative findings of fact are conclusive if supported by any substantial record evidence. This more penetrating standard is necessary because “[t]he spirit of [NEPA] would die aborning if a facile, ex parte decision that the project was minor or did not significantly affect the environment were too well shielded from impartial review.” SOTA, at page 466. This case, though, differs from the SOTA case in the procedures and standards employed by the District Court to evaluate HUD’s determination that an environmental impact statement was not required. Unlike in SOTA, where the District Court denied relief solely on the basis of its review of the agency’s administrative record, the District Court here conducted a full-scale trial on the issue, hearing witnesses and taking evidence from parties involved. Hence, the District Court’s decision here rests upon two independent bases: the record of HUD’s considerations and the Court’s own findings. This is not to say, though, that this procedure is mandatory whenever someone challenges an agency’s failure to file an environmental impact statement. Rather, as we said in SOTA, only if a plaintiff raises substantial environmental issues should a court proceed to examine and weigh the evidence of both the plaintiff and the agency to determine whether the agency reasonably concluded that the particular project would have no effects that would significantly affect our environmental quality. Only if the plaintiff can show an inadequate evidentiary development before the agency should the District Court supplement the deficient administrative record by taking evidence on the environmental impact of the project. We reiterate, as we stated in SOTA, that it is not the province of the courts to review the agency decision on the merits as to the desirability vel non of the proposed project. Instead, it is the courts’ function to insure that the mandate of the statute [NEPA] has been carried out and that all relevant environmental effects of the project be given appropriate consideration by the responsible official whenever it is unreasonable to conclude that the project is without the purview of the Act. SOTA, supra, at page 467 (emphasis added). II. On December 1, 1969, the private developer, LIBO, Inc., applied to HUD for federal mortgage insurance available under Section 236 of the National Housing Act, 12 U.S.C.A. § 1715z-l(j). On July 16, 1971, HUD issued a Firm Commitment to assist the proposed project, promising to supply both federal loan insurance and mortgage payment subsidies. NEPA became effective on January 1, 1970, and on April 30, 1970, the interim guidelines for implementing NEPA were issued. As we have pointed out earlier, these guidelines were issued in final form, with only minor changes, on April 23, 1971. On June 19, 1970, HUD issued a memorandum establishing interim internal procedures for implementing NEPA. Specific policies and procedures applicable to HUD offices in the Fort Worth Region were established by HUD Circular FW 1300.2, issued March 1, 1971, and received by the Houston HUD office on March 15, 1971. This Circular introduced the “threshold” and “negative statement” concepts. On July 16, 1971, HUD issued Circular 1390.1 establishing nationwide departmental policies governing the implementation of NEPA, including specific “threshold” and “negative statement” procedures. On September 21, 1971, CEQ General Counsel approved HUD’s “negative statement” procedures. Appellants filed their complaint on October 18, 1971. At this time, the Houston HUD office reviewed the entire project for the second time. Although the project had been in the HUD “pipeline” prior to the effective date of NEPA and before HUD Circular FW 1300.2, paragraph 3, directed that there must be evidence of “significantly adverse” environmental impact before the provisions of HUD Circular 1390.1 (the HUD Circular implementing NEPA) apply to applications in the HUD “pipeline” prior to March 15, 1971, the Houston HUD office, nevertheless, worked up a “Special Environmental Clearance.” Under the direction of the Multi-Family Appraiser, a HUD “Environmental Clearance Worksheet” was prepared, considering population density and distribution, adequacy of sewer and water facilities, vehicular traffic, ingress and egress, noxious odors, inharmonious property uses, deteriorating neighborhood influences, adequacy of community support facilities, location in relation to the general area, the proposed management plan for maintaining the apartments, and the value of the property and the kind of development that could otherwise be expected on the property. This “Worksheet” was reviewed by the same officials who had previously evaluated it, the Chief Valuator, the Chief Architect, and the Multi-Family Coordinator, but this time with special emphasis on environmental impact. Their review concluded that the proposed project would not produce the significant environmental impact contemplated by NEPA. The Chief Underwriter and Environmental Clearance Officer then prepared a “negative impact” statement. After full staff consultation, the Director of the Houston HUD office concurred in the “negative statement.” After a careful examination of the trial testimony and the supporting HUD documents, we conclude that the District Court correctly held that, as a matter of law, HUD was not required by NEPA to file an environmental impact statement covering the proposed apartment project. Although the District Court here did not have the benefit of our opinion in SOTA when it reviewed the HUD decision, its findings amply support the agency decision. As the Director of the Houston HUD office testified, appellants have raised no environmental factors, either beneficial or adverse, that were not considered by HUD before it concluded that this apartment project would produce no significant environmental impact. On this record, then, it was not unreasonable for HUD to determine that an environmental impact statement was not required. Appellants argue that the HUD actions here do not comply with the final CEQ Guidelines. They especially contend that Section 5(b) of the Guidelines, 36 Fed.Reg. 7724 (1971), which requires that an environmental impact statement be prepared where the proposed federal action “is likely to be highly controversial,” requires HUD to file an environmental impact statement here. Apart from the question of what constitutes a “highly controversial” federal action, a question which must surely be answered in the negative in this case, appellants misperceive the authority of the CEQ Guidelines. Unlike agency regulations, which have the force of law, these Guidelines are merely advisory because the CEQ was not given authority to prescribe regulations governing compliance with NEPA. Greene County Planning Board v. FPC, supra. Appellants next contend that HUD’s standard of determining “significant effect” incorrectly equates “significant” with “adverse.” Appellants argue that HUD’s determination was necessarily based on an incomplete investigation, since HUD was concerned only with adverse impact. They point to CEQ Guideline 5(c), which states : Section 101(b) of the Act indicates the broad range of aspects of the environment to be surveyed in any as- • sessment of significant effect. 36 Fed.Reg. at 7725 . (1971). Once again, though, possible HUD noncompliance with CEQ Guidelines raises no legal issue. But the deeper question remains of whether this HUD practice, that of determining that an environmental impact statement is unnecessary if no adverse environmental effects can be forecast for the federal action in question, complies with NEPA. Appellants argue that NEPA requires that an agency file an environmental impact statement if any significant environmental effects, whether adverse or beneficial, are forecast. Thus, they argue, by considering only adverse effects HUD in effect did but one-half the proper investigation. We think this contention raises serious questions about the adequacy of the investigatory basis underlying the HUD decision not to file an environmental impact statement. A close reading of Section 102(2)(C) in its entirety discloses that Congress was not only concerned with just adverse effects but with all potential environmental effects that affect the quality of the human environment. Nevertheless, any deficiency in this HUD procedure does not require the preparation of an environmental impact statement for this project. The District Court in a full evidentiary hearing fully explored the controlling factors and concluded that the project in question was not a major federal action significantly affecting the quality of the human environment within the Congressional meaning of the National Environmental Policy Act. Affirmed. . Cooperation of agencies ; repons ; availability of information ; recommendations ; international and national coordination of efforts The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall— * * * * * (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes; 42 U.S.C.A. § 4332. . Paragraph 3 states :

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

John C. MEYERS & Lucy B. Meyers et al., Plaintiffs-Appellants, v. C & M PETROLEUM PRODUCERS, INC., et al., Defendants-Appellees. No. 72-2632. United States Court of Appeals, Fifth Circuit. April 10, 1973. Rehearing and Rehearing En Banc Denied May 24, 1973. H. Lehman Franklin, Jr., Statesboro, Ga., Hull, Towill, Norman, Barrett & Johnson, Wyckliffe A. Knox, Jr., Augusta, Ga., for plaintiffs-appellants. William A. Zorn, Jesup, Ga., for defendants-appellees. Before COLEMAN, MORGAN and RONEY, Circuit Judges. COLEMAN, Circuit Judge: Section 771, Title 15, United States Code provides as follows: § 77Z. Civil liabilities arising in connection with prospectuses and communications. Any person who — • (1) offers or sells a security in violation of section 77e of this title, * * * * * * shall be liable to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security. In this appeal the sole issue is whether, under the pleadings and the facts, plaintiffs-appellants waived the right of recovery provided by the above statute. The District Court submitted the issue to a jury, which found for the defendants, with judgment accordingly. We reverse and remand, with directions that judgment be entered for plaintiffs for the recovery specified by § 771. C & M Petroleum Producers, Inc., is a Georgia corporation with its principal office and place of business in Jesup, Georgia. The corporation was organized for the purpose of buying and selling mineral leases in gas and oil wells in Ohio. The Company began to offer to sell and deliver these securities to certain residents of Georgia and Florida. The purchasers-appellants paid C & M a total of $23,750 for their interests in the wells. Although no registration statement has been filed with the Securities and Exchange Commission as required by § 5 of the Securities Act of 1933, the mails, telephone, and other means of interstate transportation and communication were employed by C & M in these offers, sales, and deliveries. Being informed of non-compliance with the registration requirements of the Securities Act of 1933 and the Georgia Securities Act of 1957, C & M wrote purchasers-appellants on May 27, 1969, advising them of the status of the matter and offering to repurchase their interests in the wells. The letter stated: “We are advised that as a result of having sold you an interest in the above mentioned gas wells, we are in violation of the Georgia Securities Act of 1957 as amended and the Securities Act of 1933 as amended. These Statutes provide that we should have registered this interest as a security before offering it to you for sale. Consequently, in view of our violation of the Georgia and Federal Statutes, we hereby offer to repurchase from you said interest for the sum of money paid by you for said interest, less any monies received by you therefrom. This offer to repurchase the above described interest from you shall terminate ten days after the date hereof. In other words, you have ten days to decide whether you want to keep your interest or not. Enclosed is a copy of this letter on which you are requested to indicate your preference. You will also find herewith a stamped, self-addressed envelope in order that you may return the enclosed copy to us promptly. Very truly yours, C & M Petroleum Producers, Incorporated. Herman Morris. “1. I desire that my interest be repurchased ( ). “2. I do not desire that my interest be repurchased ( ). “If we have not received a reply within ten days, we will assume that you wish to keep your interest in the referred well or wells.” The purchasers did not accept this proposal. Their attorney wrote C & M that he felt it impossible to determine the feasibility of accepting or rejecting the purchase offer unless first given data which would reflect the actual value of the securities. This clearly meant that the purchasers did not wish to surrender the securities if they were worth more than had been paid for them. The letter raised no other impediment to the return of the stock. It indicated an unwillingness to accept the remedy provided by the statute. The purchasers took no further action and the ten day period expired. C & M then revoked the offer to repurchase. Thereafter, the purchasers received and accepted $1,472.91 in income from the wells. On December 23, 1969, the purchasers brought suit to recover the consideration paid for the securities, with interest, less the income received therefrom. As already stated, the District Court allowed into evidence C & M’s ten day repurchase offer as bearing on whether the purchasers had waived their rights under §§ 5 and 12(1) of the Securities Act of 1933 [15 U.S.C., §§ 77e and 771]. The jury found that the purchasers-appellants had waived their rights and judgment was entered for C & M. Appellants assert two grounds for reversal : that the defense of waiver is not available in a suit arising under § 12(1) of the Act, and that the repurchase offer itself violated the registration requirements of the Act. Since, except for the self-imposed ten day limitation, the C & M letter was an offer to provide the remedy prescribed by statute, we find no merit in the second argument. This leaves remaining only the contention that by the express provisions of the Securities Act mere waiver was not, and could not be, a defense to this suit. We recognize, of course, that ordinarily one may waive constitutionally guaranteed rights if it is intentionally and voluntarily done, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). As to the sale of unregistered securities, however, Congress has specifically placed waivers in a different context. 15 U.S.C., § 77n, provides that: “Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this sub-chapter or of the rules and regulations of the Commission shall be void.” Can-Am Petroleum v. Beck, 10 Cir., 1964, 331 F.2d 331, was a case in which undivided interests in oil and gas leases had been sold in violation of §§ 77e and 771 of the Act. The Court held that the remedial aspects of the Securities Act cannot be waived, either directly or indirectly, citing Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953). The appellees here, defendants in the court below, sought to establish a waiver in the manner and form already set forth. Contrary to the general rule applicable to other transactions, this has been expressly prohibited by the Congress for the purpose of making the Act as effective as possible. If C & M had unconditionally tendered the refund of the purchase price together with interest, less income received from the securities, coupled with a demand for the return of the securities, and had the purchasers rejected such an unconditional tender and demand they would have impaled themselves upon such an estoppel as recognized by the Court of Appeals for the Ninth Circuit in the cases of Straley v. Universal Uranium and Milling Corporation, 1961, 289 F.2d 370, and Royal Air Properties, Inc. v. Smith, 1964, 312 F.2d 210. What the appellees did was to make an offer to repay the purchase price and accept return of the securities, but they imposed their own ten day limitation upon the acceptance of the offer. When .the offer was not accepted within the prescribed time the sellers cancelled it, restoring the parties to the position they occupied before the offer was made. While, as the jury found, this could be enough to establish a waiver, it was not enough to create an estoppel, lacking, as it did, an unconditional tender and demand. Our opinion in this case is not to be construed as holding that purchasers of unregistered securities may reject the remedy provided by law when unconditionally tendered and thereafter, at their option, dally around while interest is running and increment is occurring, only to bring suit, at their pleasure, sometime within the statutory period. Such a course is on its face a distortion of the remedy provided by Congress. Neither is this opinion to be construed, as holding that once a purchaser receives such an unconditional tender and demand he may take the attitude of accepting it only if it is to his pecuniary advantage to do so. Without cavil, he must accept or reject. He cannot eat the cake and keep it, too. Our holding in this case is that while the defendants-appellees established a waiver, the statute permits none. For these reasons, the judgment of the District Court must be reversed and the cause remanded, with directions as hereinabove set forth. Reversed and remanded, with directions. RONEY, Circuit Judge (specially concurring) : I concur in the decision that the failure of the purchasers to accept the repurchase offer of the sellers did not constitute an effective waiver of rights under the statute. The matter is completely within the control of Congress, which provided that Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this sub-chapter or of the rules and regulations of the Commission shall be void. (Italics added) Section 14, Securities Act of 1933, 15 U.S.C.A. § 77n. Since apparently an intentional, formal, written waiver executed either before or after the acquisition of securities is void, a fortiori any waiver that might be inferred from less formal acts must also be void. Although I understand the other comments in the opinion to be only an explanation of the holding, I would not pass on the possibility of an estoppel until confronted with a case to which that doctrine might be applicable.

f2d_476/html/0430-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

HARPER & ROW PUBLISHERS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 72-1218. United States Court of Appeals, Eighth Circuit. Submitted Jan. 8, 1973. Decided April 16, 1973. Steve R. Semler, Atty., N. L. R. B., Washington, D. C., for respondent. Michael J. Tannler, St. Louis, Mo., for petitioner. Before MATTHES, Chief Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, Senior District Judge. Hon. Talbot Smith, Senior United States District Judge, Eastern District of Michigan, sitting by designation. TALBOT SMITH, Senior District Judge. This case had its origin in an effort by certain of the employees of the Petitioner, Harper & Row Publishers, Inc. (hereinafter, the “Company”), to unionize their plant, affiliating with (originally) Teamsters Local 682. Upon Complaint issued, a hearing was held, as a result of which the Trial Examiner concluded that the Company had committed unfair labor practices in violation of Sections 8(a)(1), (3) and (5) of the National Labor Relations Act and recommended remedial action, including an order that the Company bargain with Teamsters Local 682. The Board (with the Chairman dissenting as to one point) sustained the Trial Examiner and ordered that the Company cease and desist the unfair practices found, and take certain affirmative action, including an order to bargain. The matter is before us on the Company’s petition to review and on the Board’s cross-application for enforcement of its order. We have jurisdiction under Sections 10(e) and (f) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151 et seq.). Again we are faced with the bargaining order problem. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); N.L.R.B. v. Arrow Specialties, Inc., 437 F.2d 522 (8th Cir. 1971); Howard Mfg. Co., Inc. v. N.L.R.B., 436 F.2d 581 (8th Cir. 1971); N.L.R.B. v. Regal Aluminum, Inc., 436 F.2d 525 (8th Cir. 1971); Ace-Alkire Freight Lines, Inc. v. N.L.R.B., 431 F.2d 280 (8th Cir. 1970); Hy-Vee Food Stores, Inc. v. N.L.R.B., 426 F.2d 763 (8th Cir. 1970), cert. denied, 400 U.S. 879, 91 S.Ct. 120, 27 L.Ed.2d 116 (1970). Although we grant enforcement in part, we will not sustain the Board’s bargaining order. In view of the fact that such order involves, and to a large degree depends upon the Board’s findings as to the unfair labor practices charged (and found) we will examine in some detail the evidence relevant thereto. The Company is engaged in the publication, sale and distribution of books and other printed materials. In Troy, Missouri, it maintains a warehouse, the facility involved in the present controversy. Early in March, 1971, two employees, William Creech and Dennis Hickman, contacted Anthony Parrino, the business agent of Local 682, and arranged a meeting at the home of Mary Geraldine Creech to discuss unionization. At this meeting all of the employees present signed authorization cards for the Union. The following day, March 11, there was much activity in and around the plant respecting the signing of authorization cards, as well as on subsequent days. By March 15th, some four days later, Local 682 had obtained cards signed by 45 employees, including one signed by an office clerical' employee. (At this time there were approximately 80 employees at the warehouse, including nine office clerical employees). The following day, March 16, Eugene Walla, President of Local 682, accompanied by Anthony Parrino, went to the Company’s office and asked to see the Plant Manager, John Misiura. The Trial Examiner credited Walla’s version of the meeting, namely, that he (Walla) “had secured authorization cards for representation of employees of his particular firm” and asked if “he. would recognize the local union as the bargaining agent for these employees.” Mr. Misiura replied that “he didn’t believe that we represented anybody” and that “we could get off his property immediately.” Mr. Noto (the plant engineer) who was standing nearby stated that they couldn’t negotiate, that their supervisors were in New York and their lawyers in St. Louis. Walla replied that they did not seek negotiations at that time but merely recognition of Local 682 as the bargaining representative, warning Misiura not to discriminate against any employees who had sought representation by Local 682. Misiura replied that he had told them once to get off the' grounds and threatened to call the sheriff. Walla and Parrino then left, with Walla’s announcement that “I think I will just throw a picket around here tomorrow.” That night a strike was voted and on the following day picketing began. On the same day Local 682’s attorney filed with the Board’s Regional Office a Petition for Election. In late March, counsel for the Company and Local 682 discussed practical means for settling the strike. It was agreed to seek an early election. President Walla at a meeting on Sunday, April 4, recommended a discontinuance of the strike and the picketing was discontinued the next morning, April 5. The 8(a)(1) violations involve what were found to be threats, coercive interrogations, and promises. The day (March 11th) following the meeting at the home of Geraldine Creech was, as noted above, a day of great unionizing activity. In Plant Engineer Noto’s words “. . .a big beehive of something was up.” Mr. Misiura questioned employees Lavern Creech and Emmett Cope as to whether or not they had signed union cards. He also asked whether Ronnie Hurst was acting in the effort at unionization, learned that he was, and that Creech, Hickman, and the temporary girls were interested in the union movement. Misiura later called in Horst, questioned him regarding his union views, asked if he had signed a card, and requested his cooperation in reporting on the union activities of other employees. Mr. Noto also questioned his subordinates concerning the union cards, stated that if a union got in, the Company “would not provide as many benefits.” In addition, he reminded employee Winter that he was still a temporary employee and not permanent and, in addition, that with a union there would be loss of certain benefits. In addition it was found that the Company, on March 16th, granted wage increases to Class II personnel, in a hasty action attempting to demonstrate the lack of need for union representation and to discourage the organizing efforts then going on. Grants of additional wage increases and other benefits were also found to have been made during the strike for the same purposes. Subsequent to the strike it was found that Jerry Creech had not only been assigned new and different work, intended to hamper her on-going union activities, but that her work (and that of Oscar Westoff) had been criticized in a manner intended to warn them of the Company’s disapproval of their active roles during the strike. It was also found that the Company had been guilty of anti-union discrimination in violation of Section 8(a)(3) and (1) of the Act in the discharge of employees Creech and Hickman, who had been active in the organizing activities. Similar violation was found in the layoffs of Temporary Class II women (who had been particularly critical of their pay differentials) on both March 11 and March 16, for the purpose, it was found, of presenting an object lesson to other employees of serious adverse consequences attendant upon adherence to the union movement. The Company’s refusal to rehire James Floyd stemmed, it was found, also from his joining in the strike. An additional result of the strike, it was found, was the Company’s continuing discrimination, in violation of Section 8(a)(3) and (1) of the Act, against Temporary Class II women after the strike, in that they were not fully reinstated to their former positions. Violation of Section 8(a)(5) and (1) of the Act was found in the Company’s refusal to bargain collectively with Local 682. The Union alleged in the complaint, as amended, consisting essentially of all warehouse and maintenance employees, was found to be an appropriate unit. We have heretofore summarized the circumstances of the meeting between Misiura, Noto, Walla, and Parrino, at which time, the Trial Examiner found, there was a “summary rejection” of Walla’s request for recognition. To most of the above the Company, in the course of extensive proceedings before the Trial Examiner, offered various explanations. As to conversations held, and which were found to be coercive and restraining, the version of its witnesses was often at direct variance with the version of the union witnesses. Thus, as to the Misiura-Cope-Creech meeting on March 11, which the Examiner has interpreted as coercive, it is argued that the matter of the union cards came out, not through probing by Misiura, but as volunteered by the employees, and that such discussion, including Horst’s “pushing for the Union,” in the context of the entire conversation, did not descend to the level of coercive interrogation. Similarly with respect to the Noto-Mozier-Coose discussion of the same date. The references to cards, it is agreed, came up in the course of an hour and forty minute conversation in which many other matters were discussed. The inquiries as to cards was said to be casual, and at no time were coercive threats made. As to the NotoWinter conversation, with its alleged reminder to Winter that he was only a temporary employee, the Company argues that Winter had in fact been made permanent, and to his knowledge, days before the conversation and hence his testimony was confused and unreliable. The discrimination allegedly practiced against the temporary employees in their March 11 lay-off is sought to be justified on the ground that critical electronic equipment on which these employees relied (to keep them supplied with orders) was broken down, with the result that the Company could not employ their services. Routine business operation was also the evidence adduced as to the March 16 increase in pay, it being argued, with supporting testimony, that the pay differential involved had been under study for some time, and that home office approval of the increase had not been received by Misiura until March 15th, and hence the pay increase, involving a fundamental change in pay structure, simply could not have been a spontaneous reaction to Walla’s claim. We think it would serve no useful purpose to further elaborate upon the pro’s and con’s of these various incidents. We are not called upon to weigh the testimony, to array charge against explanation. Our problem, rather, is whether there is substantial evidence in the record as a whole to support the Board’s determinations, bearing in mind that it may draw reasonable and fair inferences from the evidence it finds to be creditable. Arbie Mineral Feed Co. v. N.L.R.B., 438 F.2d 940 (8th Cir. 1971). Mindful of the teachings of Universal Camera Co. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), we have carefully reviewed the entire record and are left with the firm conviction that the Board’s findings as to the 8(a)(1) and (3) violations are supported by substantial evidence. We now turn to the bargaining order. It was the order of the Board, affirming the Trial Examiner’s rulings, findings, and conclusions, and adopting (with slight modifications) his recommended order, that “The Respondent, Harper & Row Publishers, . . . shall “(f) Upon request, recognize and bargain collectively with the above-named labor organization, as the exclusive representative of all employees in the appropriate unit stated in the Conclusions of Law above with respect to rates of pay, wages, hours of employment and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement.” The Trial Examiner had concluded that “. . . the Respondent’s all-pervasive unfair labor practices precluded its employees from exercising a free choice in an election . . . ” The Company vigorously contends that such conclusion is unjustified on the record and the bargaining order likewise unsupported thereon. Our guidelines is this area are found in N.L.R.B. v. Gissel Packing Co., supra. Particularly pertinent for our present problems is the Court’s holding that “It is for the Board and not the courts, however, to make that determination, based on its expert estimate as to the effects on the election process of unfair labor practices of varying intensity. In fashioning its remedies under the broad provisions of § 10(c) of the Act (29 U.S.C. § 160(c)), the Board draws on a fund of knowledge and expertise all its own, and its choice of remedy must therefore be given special respect by reviewing courts.” 395 U.S. at 612, n. 32, 89 S. Ct. at 1939. We take it, however, that the Court’s emphasis, thus stated, was not intended to overrule its well-known statement in Universal Camera Co. v. N.L.R.B., supra, that “Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function” in order to do justice between the parties and thus . fulfill their ultimate responsibilities. N.L.R.B. v. General Stencils, Inc., 438 F.2d 894 (2nd Cir. 1971). Although the Company, as we have noted, raised various defenses and objections to the cards, we find that there is substantial evidence to support the Board’s view that the union represented a majority of the appropriate bargaining unit at the time it demanded recognition. That there were numerous unfair labor practices is clear. The employer obviously did not want a union in the plant. But what is not clear upon the record, far from there being substantial evidence thereof, is that these practices had any undermining effect, indeed, any demonstrable effect upon unionization, or would have upon the election machinery. It has been established that the union had a majority on March 16th. Prior to this date had occurred the Mozier-Noto conversation, the Winter incident, the Misiura-Cope-Creech coercion, the layoff of March 11th, and the discharges of Creech and Hickman. The wage increases to Class II personnel, constituting interference and restraint, occurred on March 16th. The record is barren of any erosion of union support by company action subsequent to its attainment of a majority. In fact the record demands the opposite conclusion: additional authorization cards were signed on the day after the strike, picket lines of 10 or 12 people were “up at all times,” meetings were held, in fact one in a large meeting hall in the neighboring town of Wentzville. There is thus affirmative evidence that the unfair practices did not undermine the union majority and it is significant to us in appraising the causal connection between unfair practices and union erosion, N.L.R.B. v. Drives, Inc., 440 F.2d 354 (7th Cir. 1971) that the unfair practices preceded in large part of the successful card signing campaign. “Evidently”, as the court observed in N.L.R.B. v. General Stencils, supra, “the American working man who wants a union has enough sturdiness and sufficient confidence in the union’s ability to protect him that he is not cowed by employer threats . . . ”. The situation before us is essentially that described in our opinion in Arbie Mineral Feed Co. v. N.L.R.B., supra, where, in ruling upon the bargaining order there before us we held “(3) Where the evidence establishes that the unfair labor practices produced little or no impact upon the employees’ allegiance to the union, we deny enforcement.” 438 F.2d at 945. An additional problem, however, with respect to the enforcement of the bargaining order is presented by the events of March 29th. As a result of discussion within Joint Council No. 13 of the Teamsters (a council of all the Teamsters’ Locals in the St. Louis area) it had been decided that Local 688 was a more appropriate local to represent the warehouse workers than Local 682, which had obtained the authorization cards and had requested recognition. Accordingly Local 682 scheduled a meeting of the Company employees in Wentzville on the night of March 29th. This meeting was attended by 32 employees and presided over by President Walla of Local 682. He explained that the work of the Company’s employees was not within the jurisdiction of Local 682, a construction local, that Local 688, which customarily represented warehouse employees, could represent them better, that Local 682 had a high dues structure but that the Company’s employees, who were on a lower wage schedule, would be paying the same dues, presenting a situation which would breed dissatisfaction. The matter was put to a vote, the majority voted to go into Local 688, sign their authorization cards, and the meeting was turned over to Mr. Dunn, an organizer for Local 688. Mr. Dunn generally supported President Walla’s analysis of the situation respecting the two unions. Cards were passed out before the meeting adjourned and all employees present signed with Local 688. The result of the meeting was clearly an affiliation with Local 688. As President Walla put it “When they voted they knew they were going with 688.” Anthony Parrino, business agent for Local 682, expressed the same understanding, namely, that Local 688 was to take over the representation, “that’s what the meeting was about.” Local 688, however, did not want the Company’s employees. The Executive Officer of Local 688, Mr. Gibbons, notified Walla that they (688) were not interested in representing the Harper & Row people. Walla replied to Gibbons that Local 682 would never again relinquish jurisdiction over the employees concerned. Another meeting of the employees was then called by Walla. They were informed of the most recent development and that Local 682 would be representing them, would “take them all the way through now.” There was no vote at the meeting. No cards reinvesting Local 682 with authority were signed and Local 688 faded out of the picture. The strike continued, using Local 682 materials on the picket lines. The Board, however, has held, adopting the Trial Examiner’s bargaining order, that Local 682 never lost its majority status through the foregoing, stating that “we would take a different view, however, had the employees abandoned 682 and made a genuine and unconditional shift to another union.” The reference to “unconditional” is apparently upon the theory that the shift over to Local 688 was upon a condition, namely, that Local 688 actually take over as the bargaining agent. The Board apparently relies here upon the testimony of one William Schneider, described as a representative of Teamsters Joint Council 13, who in turn quotes Mike Dunn, a representative of Local 688, as having so told the meeting. But accepting that the remark was in fact made, it was no more than a remark. There was no discussion thereof, nothing hinged on it, no warning to the membership of their situation should the take-over not occur, and, significantly, there is no mention of, or allusion to, in the minutes of the meeting of this remark, now asserted to govern, in legal effect, the entire situation as a condition subsequent. It is abundantly clear on the record, of course, that Local 688 never did take over. But it is equally clear that the employees made a genuine and unconditional shift to Local 688 and there is no substantial evidence that they did so upon condition subsequent. What actually happened simply was that the membership was talked out of Local 682 by its President and signed up with Local 688, only to be rejected a few days later by the Local of their new affiliation. In this unusual situation, peculiarly appropriate is the admonition in Gissel, supra, that once having a union majority, together with employer unfair practice, “effectuating ascertainable employee free choice becomes as important a goal as deterring employer misbehavior.” (395 U.S. at 614, 89 S.Ct. at 1940) Here the union majority was not lost through the Company’s unlawful practices but through voluntary disaffiliation by the employees themselves. The employee free choice, upon the peculiar facts of this case, should not be held to rest upon the card authorizations of March 16th. We have examined the remaining issues argued by the parties and find that they are either without merit or controlled by the foregoing. In sum, we deny enforcement of the bargaining order. In all other respects the order of the Board is enforced. . The full name of the Union is Construction, Building Material, Ice and Coal, Laundry, Dry Cleaning and Industrial Laundry and Dry Cleaning Drivers, Helpers, Warehousemen, Yardmen and Allied Workers — Local Union 682. It is an Affiliate or Constituent Unit of the International Brotherhood of Teamsters, Chauffeurs, AVarehousemen and Helpers of America. . The Order is reported at 196 N.L.R.B. No. 50. . Upon its opening in May, 1970, the Company set up two major hiring classifications, Class I and Class II. Class I, a higher pay bracket, consisted of men performing heavier work and Class II was largely composed of women doing lighter work. Within each class there were both “temporary” and “permanent” employees, the latter enjoying higher pay and benefits not granted to the temporary emjdoyees. . The Chairman did not agree with the balance of the panel that the Company discriminated against striking employees by adoption of a new wage increase schedule. . The Company argues that Local 6S2’s request for bargaining included office clerical employees, a unit not appropriate for collective bargaining, which inclusion also constituted a variance between the unit with respect to which bargaining was requested and that alleged in the complaint as amended to be the appropriate unit. The objection is not well taken, we agree, in view of the fact that the Company failed to ground its refusal to bargain on this basis, Colecraft Mfg. Co. v. N.L.R.B., 385 F.2d 998 (7th Cir.). Moreover the variance was insubstantial. Brewery and Beverage Drivers Local No. 67 v. N.L.R.B., 257 F.2d 194 (D.C.Cir.1958). . Ap. 92-93 . Ap. 90 . App. 205 . App. 217 . App. 227 . fn. 2, App. 127-128

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Edmund R. STEINMAN, Plaintiff-Appellant, v. SPECTOR FREIGHT SYSTEM, INC., et al., Defendants-Appellees. No. 512, Docket 72-2014. United States Court of Appeals, Second Circuit. Argued March 19, 1973. Decided April 9, 1973. Walter J. Brinson, Kenmore, N. Y., for plaintiff-appellant. Francis F. Sulley, Chicago, Ill. (Vedder, Price, Kaufman & Kammholz, John P. Jacoby, Chicago, Ill., Flaherty, Cohen & Grande, Buffalo, N. Y., on the brief), for defendant-appellee Spector Freight System, Inc. Paul A. Crotty, Buffalo, N. Y. (McMahon & Crotty, Joseph M. Crotty, Buffalo, N. Y., on the brief), for defendantappellee Truck Drivers Local No. 449. Before SMITH, FEINBERG and MANSFIELD, Circuit Judges. FEINBERG, Circuit Judge: On the first appeal in this litigation, we reversed an order of the United States District Court for the Western District of New York, which had granted summary judgment to defendants Spec-tor Freight System, Inc. and Truck Drivers Local No. 449, and we remanded the case for further proceedings. 441 F.2d 599 (1971). Familiarity with our prior opinion will be assumed. Upon remand, Judge John T. Curtin decided to put aside the breach of contract question until he had first tried the issue whether defendant Local 449 had breached its duty of fair representation to plaintiff Edmund R. Steinman in presenting his case in a grievance proceeding initiated by him after his discharge in September 1966. A non-jury trial was held on this issue, at which seven witnesses testified. Thereafter, the judge found that plaintiff had not proved that Local 449 had failed to represent him fairly on his 1966 grievance, and ordered judgment for both defendants. Appellant Steinman argues that the procedure followed by Judge Curtin was improper under our earlier opinion. It is true that we there emphasized that plaintiff had not yet received a fair hearing on the merits of his grievance, to which he was entitled. But we did so in the context of the issue then before us, which arose as follows. In March 1968, a National Labor Relations Board trial examiner found that Local 449 had failed to represent Steinman fairly in the proceeding before the Joint State Grievance Committee, in which Stein-man had been unsuccessful on the merits. As a result of the trial examiner’s order, Local 449 asked the State Committee, and ultimately the Eastern Conference Joint Area Committee, to grant Stein-man a rehearing, but this was refused. In Steinman’s subsequent suit under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, Judge Cur-tin granted summary judgment for defendants on the theory that the denial of a rehearing by the State and Area Committees barred the court action. It was in that context that we held on the prior appeal that summary judgment was improper; Steinman was not barred from pursuing his action because he was entitled to a fair hearing on the merits somewhere, and there was no proof on the record as it then was that he had received such a hearing. The record before us on this appeal is entirely different. Judge Curtin has now ruled that Steinman did get a fair hearing in the original proceeding before the State Committee. Contrary to appellant’s only argument to us, our prior opinion did not prevent the judge from trying the fair representation issue first. The defense that Local 449 actually had represented Steinman fairly was raised in both Spector’s and the Local’s answer. Because of the prior summary judgment, that issue had never been tried in the district court. We expressly noted in our prior opinion that “we are not passing upon any other defenses to plaintiff’s suit that may be raised by Spector or Local 449.” 441 F.2d at 604 n. 9. Certainly, under Vaca v. Sipes, 386 U.S. 171, 186-187, 196, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), the judge could choose to hear the issue of fair representation first. As for the effect on this litigation of the trial examiner’s earlier decision, his finding of inadequate representation was certainly not binding on Spector, which was not a party to the unfair labor practice proceeding. Strip Clean Floor Refinishing v. New York District Council No. 9, 333 F.Supp. 385, 392 (E.D.N.Y.1971); 2 K. Davis, Administrative Law Treatise § 18.05 (1958); cf. Old Dutch Farms, Inc. v. Milk Drivers Local 584, 359 F.2d 598, 603 n. 7 (2d Cir.), cert. denied, 385 U.S. 832, 87 S.Ct. 71, 17 L.Ed.2d 67 (1966). The wisdom of the identity-of-parties requirement is demonstrated in this case, because Spector, at the trial on remand, was able to produce additional evidence and thus provide a much more complete record than apparently had been available to the trial examiner. The question whether the trial examiner’s finding was binding on Local 449 in this action was not raised below after remand and is not pressed before us. Finally, appellant does not claim that Judge Curtin’s findings on the question whether Local 449 had fairly represented Steinman are clearly erroneous. This shows good judgment, for the judge’s careful 14-page opinion on the merits of that issue is quite persuasive. The judgment of the district court is affirmed. . Steinman v. Spector Freight System, Inc., Civil No. 1968-341 (W.D.N.Y. Feb. 16, 1972). . After remand, appellant did not object to Judge Curtin’s separate trial order when it was first entered, Steinman v. Spector Freight System, Inc., Civil No. 1968-341 (W.D.N.Y. Sept. 27, 1971), or even when appellant filed his trial memorandum. In fact, appellant’s first such objection came after he had rested his case, and this was not only tardy but vague. . The trial examiner relied principally upon the fact that the union representative had not apprised the State Grievance Committee of Steinman’s prior opposition to Spector’s layover rules and had not even attempted to introduce the minutes of Steinman’s 1965 grievance proceeding. In contrast, Judge Curtin noted: “The State Committee had a copy of the minutes of plaintiff’s 1965 case and was fully aware of plaintiff’s complaints about the Richfield dispatch procedures.” Steinman v. Spector Freight System, Inc., supra note 1, at 10. . Steinman’s complaint also contained a claim for unpaid layover wages. It is quite clear from Judge Curtin’s opinion that plaintiff did not meet his burden of showing that “pressing a grievance would have been futile.” 441 F.2d at 604.

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John W. DeWALT, Petitioner-Appellant, v. COMMANDING OFFICER, FORT BENNING, GA., et al., Respondents-Appellees. No. 72-2575. United States Court of Appeals, Fifth Circuit. April 13, 1973. M. C. Mykel, Atlanta, Ga., for petitioner-appellant. William J. Schloth, U. S. Atty., Charles T. Erion, Asst. U. S. Atty., Macon, Ga., for respondents-appellees. Before COLEMAN, MORGAN and RONEY, Circuit Judges. PER CURIAM: Petitioner, a 1st Lieutenant in the United States Army, seeks release from military service as a conscientious objector. The Army rejected his claim. The District Court dismissed his petition for writ of habeas corpus. We affirm. The sole question is whether there was a sufficient factual basis to support the Army’s denial of petitioner’s request for discharge as a conscientious objector. From our study of the record, we conclude the District Court properly determined that the Army’s disposition of petitioner’s request was substantiated by the facts. While at Wheaton College (Illinois), John DeWalt enrolled in the compulsory two-year Reserve Officers Training Corps (R.O.T.C.) program and then continued his military studies in the elective, advanced program for two years. Upon graduation, he accepted a commission as a lieutenant in the United States Army and reported for active duty in November, 1969. He completed basic and advanced infantry training, flight school and additional preparation for combat assignments. Orders for Viet Nam duty were delayed to permit him to further his training. Not until April 1971, after receiving final orders for a Viet Nam assignment, did petitioner apply for discharge from the Army as a conscientious objector. Completing all requirements of the comprehensive application pursuant to Army Regulations 635-20, DeWalt asserted that his opposition to war in any form resulted from family and church teachings, college philosophy and religion courses, related reading, and his experiences in military service. Supporting letters attested to the sincerity of his convictions. DeWalt was interviewed by his commanding officer, a field grade officer, a chaplain, and a psychiatrist. The commanding officer, recommending disapproval of the request, did not doubt DeWalt’s sincerity, but questioned his judgment in accepting costly military training while doubting whether he could serve his country in combat. The field-grade hearing officer shared this view, emphasizing the impact of the imminence of Viet Nam duty on petitioner’s thinking. The chaplain found petitioner’s objections to military service to be sincere and recommended approval of his claim. The psychiatrist offered no medical contradictions to this conclusion. The Department of the Army returned DeWalt’s application to his commanding and hearing officers for further remarks concerning the depth and sincerity of petitioner’s convictions. Both officers reiterated their observations that petitioner’s convictions and request were sincere, but emphasized their impressions that his position was not carefully reasoned. They thought DeWalt was more concerned with his discharge from service than either his commitment to the Army or the fact that another man with similar training would have to undertake combat duty in his stead. The Department of the Army then denied DeWalt’s request upon the ground that his professed views were not truly held. Subsequent to the District Court’s dismissal of this petition for habeas corpus, petitioner was granted an injunction from being removed outside the continental United States until final disposition of this appeal. Discharge from military service is available only because of a privilege granted by the executive branch of the federal government and not as a constitutional right. See In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795 (1945); United States v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302 (1931). That privilege is based upon regulations reflecting the Supreme Court’s standards for conscientious objection. Army Regulation, 635-20, par. 3; Army Regulation 614-106, par. 26(2); Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970); United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). To qualify for discharge from military service as a conscientious objector, an applicant must satisfy the same criteria as one seeking draft classification as a conscientious objector: (1) That he is opposed to war in any form, Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971); (2) That his objection is grounded in deeply held moral, ethical, or religious beliefs, Welsh v. United States, supra; and (3) That his convictions are sincere. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955). The Army cannot merely disbelieve an applicant for conscientious objector discharge if his case is prima facie, see Rothfuss v. Resor, 443 F.2d 554 (5th Cir. 1971), but must have a basis in fact for denial. See United States v. Henderson, 411 F.2d 224 (5th Cir. 1969). The review of the Army decision is one of the narrowest known to the law. See Blalock v. United States, 247 F.2d 615 (4th Cir. 1957). The task of this Court is not to impose its own views of human nature upon the Army’s conclusion, but to determine whether that conclusion is supported by fact. Because the test of sincerity is necessarily subjective, therefore, any facts which east doubt on DeWalt’s sincerity are relevant to the inquiry and may support the Army’s denial of his request. We conclude that there is such a basis in fact for the Army’s denial of DeWalt’s request. Having applied for and accepted extensive combat training, petitioner did not seek a discharge until war zone duty was imminent. An applicant’s timing in filing for discharge has often been seen to cast doubt on his sincerity. See Rothfuss v. Resor, supra; United States v. Henderson, supra. The reports of petitioner’s commanding and hearing officers emphasized that only after he obtained extensive military assistance or financial education and training did he elect to file for conscientious objector status. The officers further indicated that they were convinced more of his sincerity in desiring discharge from the Army than the genuineness of his pacifist inclinations. While in July, 1970, DeWalt qualified as an expert with both the M-16 rifle and the .38 caliber pistol, he sought to be excused on conscientious grounds from weapons qualification less than a year later, after his application for discharge. Moreover, nowhere in the record does petitioner suggest the manner in which his studies or reading directed his decision to apply for discharge. He admits that none of his religious training prior to military experience taught that all wars are immoral. See Cohen v. Laird, 439 F.2d 866 (4th Cir. 1971); Speer v. Hedrick, 419 F.2d 804 (9th Cir. 1969). We conclude, consequently, that the Army’s denial of petitioner’s request was supported by fact. Affirmed.

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Virginia BLACKWELL et al., Appellants, v. C. C. THOMAS, Jr., et al., Appellees. S. J. VANDROSS et al., Appellants, v. W. Marvin LANE et al., Appellees. Nos. 72-2097, 72-2065. United States Court of Appeals, Fourth Circuit. Argued Jan. 11, 1973. Decided April 3, 1973. Laughlin McDonald, Columbia, S. C. and Neil Bradley, Atlanta, Ga. (Charles Morgan, Jr., Norman Siegel and Morris Brown, Atlanta, Ga., on brief), for appellants in Nos. 72-2065 and 72-2097. Alexander S. Macaulay, Asst. Atty. Gen. (Daniel R. McLeod, Atty. Gen. of South Carolina, Malcolm C. Woods, Jr., Marion County Atty., on brief), for appellees in No. 72-2065. Donald V. Myers, Asst. Atty. Gen. of South Carolina (Daniel R. McLeod, Atty. Gen., and Alexander S. Macaulay, Asst. Atty. Gen., of South Carolina, on brief), for appellees in No. 72-2097. Before WINTER, CRAVEN and FIELD, Circuit Judges. WINTER, Circuit Judge: In two class actions, the contention that women and blacks were systematically excluded from grand and petit juries in Dillon and Marion Counties, South Carolina, respectively, was asserted. In No. 72-2097 (Blackwell v. Thomas, involving Dillon County), the district court dismissed the case as moot on the basis of stipulated facts. In No. 72-2065 (Vandross v. Lane, involving Marion County), the district court gave judgment for defendants on the ground that plaintiffs had failed to make out a prima, facie case of discrimination. The appeals were briefed and argued seriatim, but since they involve common questions of law, we decide them together. In No. 72-2097 (Dillon County), we affirm. In No. 72-2065 (Marion County), we vacate the judgment and remand for further proceedings. I. Both cases involve South Carolina’s jury selection scheme, the statutory basis of which passed constitutional muster in Franklin v. South Carolina, 218 U.S. 161, 30 S.Ct. 640, 54 L.Ed. 980 (1910). See also Carter v. Green County, 396 U.S. 320, 334-335, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970). By virtue of § 38-52, Code of Laws of South Carolina (1971 Cum.Supp.), the jury commissioners of each county must prepare annually a list of electors, between the ages of twenty-one and sixty-five, “of good moral character” and free from all legal exception, from which jurors are drawn. § 38-61, Code of Laws of South Carolina (1962 Ed.). While § 38-52 requires only that “not less than two from every three of such electors qualified” shall be included on the jury list from which jurors are drawn, the statute is silent as to when, in what manner, and by whom the reduction in number is to be made if the commissioners conclude to use less than the whole. Since there is no fixed neutral formula for a reduction in numbers, there may or may not be deliberate or inadvertent systematic exclusion depending upon how the statute is administered in various counties of the state. II. No. 72-2097 The statistics stipulated in Blackwell disclosed a “substantial disparity” between the portion of presumptively qualified blacks and women and the number of representatives of these two groups who actually served on juries in Dillon County from 1969 through June, 1971. Since this disparity coincided with the opportunity for discrimination inherent in the South Carolina statute, a prima facie case would have been established so that the state would have the burden of explaining how the disparity occurred and proving that it was not the result of actual discrimination. Stephens v. Cox, 449 F.2d 657 (4 Cir. 1971). However, after plaintiffs filed their complaint in Blackwell, the Solicitor of Dillon County petitioned Judge James A. Spruill, Jr., of South Carolina’s Fourth Judicial Circuit, for an order requiring that a new jury list be prepared. This relief was sought because new yearly lists had not been prepared in December, 1969 and December, 1970, as required by state law. Judge Spruill granted relief and ordered the preparation of a new list. It was stipulated that this new list was prepared by the county’s jury commissioner ; . . . using the most current registration list of electors between the ages of twenty-one and sixty-five years. Said registration list reflected a total of approximately 6,269 such electors in Dillon County, of whom 4,469 (71%) were white, 1,800 (29%) were nonwhite, 2,988 (48%) were male, and 3,281 (52%) were female. The new jury list was comprised of all those names appearing on that registration list. A copy of the new jury list was then prepared so that each individual name could be inserted into a separate capsule of the type appended hereto and made a part hereof, and each of those capsules thus prepared was placed in the new jury box. (emphasis added). Since the box from which the grand jury and petit juries were drawn contained the names of all of the electors of Dillon County, no opportunity to discriminate existed; and, not surprisingly, the petit jury panels drawn for the rest of 1971 consisted of 27% blacks and 42% women, and the grand jury consisted of 22% blacks and 55% women. We agree with the district court that, as a result of the selection procedure actually followed and the statistical result which obtained with reference to the new list, no justiciable case or controversy remained to be settled. Plaintiffs, however, contend that equitable relief should have nevertheless been granted to insure against systematic exclusion in the future selection of jurors in Dillon County. Nothing in the statutory scheme, they point out, mandates that the names of all registered voters be placed in the jury box from which jury lists are drawn; nor can it be said with absolute certainty that the pre-June 1971 pattern of discrimination will not reappear. S.E.C. v. Medical Committee for Human Rights, 404 U.S. 403, 406-407, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972); United States v. Phosphate Export Asso., 393 U.S. 199, 202-204, 89 S.Ct. 361, 21 L. Ed.2d 344 (1968); and United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953) govern our ruling with respect to this contention. They establish the proposition that voluntary cessation of illegal conduct may render a claim for equitable relief moot, but only “if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Phosphate Export Asso., 393 U.S. at 203, 89 S.Ct. at 364. Without that assurance the case will not be moot, because “[t]he defendant is free to return to his old ways.” W. T. Grant Co., 345 U.S. at 632, 73 S.Ct. at 897. Whatever discrimination may have been practiced in the selection of juries in Dillon County prior to June 1971, it is evident that prompt and effective corrective action was achieved by the intervention of a state judicial officer as soon as deficiencies were brought to his attention. In this regard, it is not without significance that prior to the filing of plaintiffs’ suit in the district court, neither plaintiffs nor anyone else sought corrective action in the state court. In the light of these facts, we cannot hypothesize that either the jury commissioners will not comply strictly with state law in the future as they have been directed to do by a state judge, or that the state judiciary will not immediately rectify any discrimination in the selection of future juries if complaint is made to them. Since we conclude that there is no “cognizable danger of recurrent violation,” W. T. Grant Co., 345 U.S. at 633, 73 S.Ct. at 898, we think the case is moot, and we affirm its dismissal by the district court. III. No. 72-2065 The jury selection procedures in Marion County have never been the subject of state court investigation and possible state court corrective action. Although the district court found that jurors were selected from all qualified electors of the county and predicated its opinion on that finding, the record is devoid of any evidence or stipulated fact to support it. Thus, the case comes to us with the questions unanswered as to whether the jury commissioners exercised their statutory authority to select the names of two out of three electors to place in the box from which jurors are drawn, and if so, how the selection was made. It is conceded that the voting lists showing names of electors which were furnished them contained racial designations. We must therefore consider the case as one in which deliberate or inadvertent systematic exclusion might have occurred since, as we have noted, (a) the South Carolina statute requires that only the names of two out of three electors shall be used and makes no provision as to how the reduction is to be made, and (b) the lists of electors furnished to the jury commissioners contained racial designations. In Marion County, blacks comprise 51% of the aggregate population, 44% of the population between the ages of twenty-one and sixty-five, and 41% of the registered voters. Women comprise 53% of the aggregate population and 54% of the population between the ages of twenty-one and sixty-five. The percentage of women among registered voters is apparently unknown. The membership of the 1970 grand jury was 22% black and 28% women. The membership of the 1971 grand jury was 33% black and 28% women, while that of the 1972 grand jury was 28% black and 33% women. With regard to membership of petit juries, in 1970, 35% were black and 52% were women; in 1971, 32% were black and 53% were women; and in 1972, 29% were black and 52% were women. Thus, while the percentage of women on petit juries throughout the period was almost exactly the same as the percentage of women in the aggregate population and the population between the ages of twenty-one and sixty-five (the only figures with which a comparison can be made), there was a not insubstantial deviation of blacks on grand and petit juries throughout the period compared to the percentage of blacks among registered voters of the county. Particularly with respect to petit juries, the underrepresentation of blacks became progressively more marked from year to year within the three-year period. The district court relied on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) in concluding that the underrepresentation of blacks and women was not sufficient to prove racial discrimination; and on its authority, defendants urge us to find that there was not a “substantial disparity” so as to warrant relief or even further investigation. As to women, we agree that the disparity was, not substantial, even though we do not know the percentage of women among the electorate. With respect to blacks, we conclude otherwise. As to them, the stipulated underrepresentations of 6% in 1970, 9% in 1971, and 12% in 1972 are not insubstantial, although we do not presently conclude that they constitute a “substantial disparity.” While Swain concluded, on the facts of that case, that “[w]e cannot say that purposeful discrimination based on race alone is satisfactorily proved by showing that an identifiable group in a community is underrepresented by as much as 10%,” 380 U.S. at 208-209, 85 S.Ct. at 829, Swain was not a case in which the same opportunity for exclusion as exists under the South Carolina jury selection statutes was present. Where, as here, the opportunity for systematic exclusion exists, we think the disparity sufficiently great to warrant an evidentiary exploration of how the jury selection statutes are administered to see if the two elements which would warrant relief under Stephens v. Cox, supra, coalesced. We will vacate the judgment and remand for that purpose. Affirmed in No. 72-2097; vacated and remanded in No. 72-2065. . § 38-52. Jury lists. — The jury commissioners of each county shall, in the month of December of each year, prepare from the official enrollment books of qualified electors a list of such electors of their county, qualified under the provisions of the Constitution, between the ages of twenty-one and sixty-five years and of good moral character as they may deem otherwise well qualified to serve as jurors, being persons of sound judgment and free from all legal exceptions. Such list shall include not less than two from every three of such electors qualified under the provisions of the Constitution, between the ages of twenty-one and sixty-five years and of good moral character, to be selected without regard to whether such persons live within five miles or more than five miles from the courthouse. . §§ 38-100 and 38-102, Code of Laws of South Carolina (1962 Éd. and 1971 Cum. Supp.) also provide for the disqualification of those convicted of certain crimes, as well as prescribe other grounds of disqualification. . The facts as stipulated show that blacks comprised 42% of the entire population, 34% of the population between the ages of twenty-one and sixty-five, and 29% of the registered voters of the county. Women comprised 52% of the entire population, 53% of the population between the ages of twenty-one and sixty-five and from 52 to 57% of the registered voters of the county. Petit juries for the years 1969 through June 1971, respectively, contained 10.5%, 7%, and 8.5% blacks and 21.5%, 29%, and 22.5% women. The representation of blacks and women on grand juries during the same period was similarly disproportionate when the actual representation was compared to total population, population between the ages of twenty-one and sixty-five, and registered voters. . The district court said : Since all the names on the list [of qualified voters] are used, the jury commissioners do not have the power to exercise any subjective judgment as to whose name goes into the jury box, and therefore there is no opportunity to reduce the representation of any race or group by deleting some of its members. . The district court did state, with respect to blacks, “since the percentage of. disparity has increased in the last three years, the jury commissioners should be alert to the possibility that if these percentages continued to increase, they may find themselves back before the Court.” In the closing paragraph of its opinion, the district court repeated: For the present time there has been no showing of racial discrimination or any illegality or impropriety in the handling of the jury system in Marion County and therefore this complaint must be dismissed. However, should the statistical variation continue to increase, as shown by the figures for the last three years, and there is any proof in the future of an opportunity for discrimination, the results of a similar case brought in the future might well be different. . For commentary critical of the Swam decision, see e. g. Finkelstein, The Application of Statistical Decision Theory to Jury Discrimination Cases, 80 Harv.L. Rev. 338 (1966); Comment, Swain v. Alabama: A Constitutional Blueprint for the Perpetuation of the All-white Jury, 52 Va.L.Rev. 1157 (1966); Note, Fair Jury Selection Procedures, 75 Yale L.J. 322 (1965). . When Carter v. Jury Commissioner, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970) and Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970) are closely studied, it is obvious that what constitutes a “substantial disparity” depends in large part upon the mechanism by which any disparity results. If the disparity proceeds from objective criteria, i. e., age, educational attainment, registration to vote, etc., the 10% test of Swain may be safely employed. But if the disparity proceeds from the application of subjective tests, under which there is wide opportunity for intentional racial discrimination, the tolerable disparity is diminished.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Jonathan BOYCE (F. Gordon Boyce, Administrator of the Estate of Jonathan Boyce, Deceased, substituted in the place and stead of), Plaintiff-Appellee, v. PI KAPPA ALPHA HOLDING CORPORATION, Defendant-Appellant. No. 72-1540. United States Court of Appeals, Fifth Circuit. Feb. 1, 1973. Rehearing Denied April 20, 1973. Steven R. Berger, Raymond J. Dwyer, Miami, Fla., for defendant-appellant. Larry S. Stewart, L. Edward McClellan, Jr., Miami, Fla., for plaintiffappellee. Before JOHN R. BROWN, Chief Judge, MOORE and RONEY, Circuit Judges. The Honorable Leonard P. Moore, Senior Circuit Judge of the Second Circuit, sitting by designation. MOORE, Circuit Judge: This is an appeal from a Florida common law negligence action which was removed from the Florida State court to Federal District Court on grounds of diversity jurisdiction. The complaint alleged that plaintiff-appellee Jonathan Boyce on July 20, 1970, was an invitee at the Pi Kappa Alpha Fraternity House on the University of Miami campus (hereinafter “Pike House”), premises owned by defendant-appellant Pi Kappa Alpha Holding Corporation, and that as a result of defendant’s negligence, plaintiff was caused to dive into an empty swimming pool and to sustain paralytic injuries. The cause came on for trial by jury on October 13, 1971. After several days of testimony special interrogatories were submitted to the jury which required them to determine- the status of the plaintiff on defendant’s property, the negligence of the defendant, and the degree of negligence, if any. The jury determined that plaintiff’s status had been that of an invitee, that defendant had been negligent, and that defendant’s conduct constituted willful and wanton negligence, the latter determination precluding a jury finding on the question of plaintiff’s contributory negligence. The plaintiff was awarded damages in the amount of $850,000. On appeal from that verdict, and judgment thereon, the defendant-appellant here asserts numerous points of error. Resolution of this appeal must necessarily commence with a recitation of the facts surrounding this most unfortunate event. On July 20, 1970, plaintiff-appellee Boyce was a student at the University of Miami in Coral Gables, Florida, and a member of the Phi Delta Theta social fraternity. Then 23 years old, he was attending the university’s summer session. At approximately 2:00 P.M. on that date plaintiff, his fraternity roommate Charles Parker, and several others went to the Varsity Inn, a student beer parlor which they frequented, on the average, once or twice weekly. The small group remained at the Inn until 5:30-6:00 P.M., socializing and drinking beer. The beer was purchased primarily in pitchers measuring approximately twelve inches high by six to seven inches wide. Although plaintiff could not recall precisely the amount of beer he consumed during this 3-3% hour period, he testified at trial to having drunk more than five glasses (Trial Transcript, hereinafter “Tr.”, at p. 571), while his roommate testified that he himself had consumed “a pitcher or two” (Tr. at 223). Other testimony established that plaintiff ate nothing from noon onwards that day. At approximately 6:00 P.M. the group decided to take up a collection among themselves and to purchase a 15% gallon keg of beer, for consumption that evening. The keg was bought and set up at the Phi Delta Theta house and the small group, including plaintiff, at 7:00-7:30 P.M., resumed the drinking begun in the early afternoon at the Varsity Inn. At 8:30 P.M. plaintiff’s girl friend, Nancy Lindberg, arrived at the party with her roommate, Susan Bowen. Miss Lindberg testified that, during the time she was present, she observed plaintiff consume “four or five” twelve-ounce cups of beer. (Tr. 261, 277). The plaintiff testified that he could not recall the precise quantity he had consumed during the evening. At approximately 11:30 P.M. either plaintiff or Parker suggested that they and the girls go to the Pike House, two blocks distant and the only fraternity on campus having a swimming pool, for a late night swim. Apparently, all intended to swim dressed in street clothes. (Tr. 231). The group departed for the Pike House, plaintiff carrying Miss Bowen draped over his shoulder, and Parker and another (one “Dennis”) carrying Miss Lindberg between them, their hands and arms in chair-like fashion. The plaintiff and Miss Bowen arrived at the darkened pool area several minutes before the other three. Playfully, Boyce threatened to throw Miss Bowen into the pool, but protesting, she was able to persuade him to set her down. He placed her down, apparently with his back to the pool, and then he either dived or jumped into an empty pool, at a depth of four to five feet, landing on his back. On hitting the pool floor plaintiff instantaneously severed his spinal cord, causing virtual total paralysis from the shoulders down. At trial the theory of plaintiff’s case was (1) that plaintiff had been an invitee on the defendant’s premises, by virtue of defendant’s express and implied invitations to plaintiff to use the swimming pool; (2) that although plaintiff had never used the pool he had seen it full numerous times in the past and had no knowledge that the pool lacked a filter system, which necessitated that it be fully emptied for purposes of cleaning; (3) that defendant was negligent in constructing and maintaining its pool in violation of a city ordinance, in not providing adequate lighting around the pool area, and in not giving some warning (e. g., fencing the pool off during the emptying procedure) to indicate that the pool was dry and in a hazardous condition; (4) that defendant’s negligence was the proximate cause of the injury, and that the negligence was of a “willful and wanton” nature; and (5) that plaintiff could thus recover for past and future medical expenses, loss of future earnings, and pain and suffering. While denying that it was negligent in any way, defendant raised the affirmative defense that plaintiff, a trespasser, or at best a licensee, on its property, had been contributorily negligent in failing to exercise due care for his own safety. Defendant argued that, although the pool area was quite dark, the light provided by nearby street lamps and the moon was sufficient to enable plaintiff to have seen that the pool was empty, had he bothered to look; that, although violation of the city ordinance (failure to fence and lock the pool) constituted negligence under Florida law, the totality of the circumstances involved, as a matter of law, could in no way support a finding of willful and wanton negligence ; that the issue of willful and wanton negligence, as a matter of law, should thus be withheld from the jury; and that the issue of contributory negligence was for jury determination. Because in arriving at its verdict the jury did not determine the question of plaintiff’s contributory negligence (see Special Interrogatories, note 1, supra), and because we rule that the Trial Judge erred in submitting the issue of willful and wanton negligence to the jury, we reverse the judgment below and remand the cause for a new trial, with instructions as indicated hereafter. We note at the outset that Florida law controls. Analyzing the evidence in a light most favorable to the plaintiff-appellee, as we must upon a challenge to the sufficiency of evidence to support the jury verdict, Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en bane), we are of the opinion that the facts recited do not support a finding of willful and wanton misconduct by defendant. It is well settled that whether or not the totality of a situation evidences gross negligence or willful and wanton misconduct is a jury question, subject, however, to an initial determination by the trial judge that sufficient evidence exists to justify submitting the issue to the jury. Hodges v. Helm, 222 So.2d 418, 420 (Fla.1969); Carraway v. Revell, 116 So.2d 16, 22 (Fla.1959); Cormier v. Williams, 148 Fla. 201, 4 So.2d 525, 526 (1941). The narrow issue we must here determine is whether the conduct of defendant meets the test of “willfulness and wantonness” established by Florida law. Although numerous jurisdictions have abandoned attempts to distinguish among degrees of negligence, see 57 Am.Jur. § 94 and cases there cited, Florida apparently continues to hold fast to its common law tradition. Recent Florida decisions have drawn fine distinctions among the traditional categories of negligence: (1) “ordinary negligence”; (2) “gross negligence”; and (3) “willful and wanton negligence”, the latter being considered a “more culpable” form of misconduct, that is, conduct which is more in the nature of an intentional wrong. In Carraway v. Revell, supra, the Supreme Court of Florida attempted the admittedly difficult conceptual task of defining the “degrees” of negligence inherent in the just stated categories. After assigning each to its comparative level of culpability by noting that “gross negligence * * * is that kind or degree of negligence which lies in the area between ordinary negligence and willful and wanton misconduct,” the court quoted from an earlier opinion, Bridges v. Speer, 79 So.2d 679, 682 (Fla.1955): We think the rule which would more nearly solve the problem than any other would be one which recognized that simple [ordinary] negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons or property whereas gross negligence is that course of conduct which a reasonable and prudent man would know would probably and most likely result in injury to persons or property. To put it another way, if the course of conduct is such that the likelihood of injury to other persons or property is known by the actor to be imminent or “clear and present” that negligence is gross, whereas other negligence would be simple negligence. 116 So.2d at 22-23. (emphasis in original.) If, as the quoted language indicates, a finding of gross negligence requires knowledge, actual or constructive, by the actor that injury to another is imminent or “clear and present”, then, a fortiori, a finding of willful and wanton negligence under Florida law must meet the knowledge requirement, and more. In a more recent case, Glaab v. Caudill, 236 So.2d 180, 184 n. 13 (Fla.D.C.A.2, 1970), the court stated: Since Carraway v. Revell, * * * we now perceive “willful and wanton” conduct to be criminal negligence, amenable to punitive redress, whereas gross negligence as such is necessarily something less. We therefore distinguish a “conscious disregard of consequences” [gross negligence] from that “wantonness or recklessness, * * * or that reckless indifference to the rights of others which is equivalent to an intentional violation of them. (emphasis in original.) Extracting from these pronouncements the essential elements of willful and wanton misconduct, we note that (1) the actor must have knowledge, actual or constructive, of the likelihood that his conduct will cause injury to other persons or property; and (2) the conduct must indicate a reckless indifference to the rights of others, that is, conduct which may be termed equivalent to an intentional violation of those rights. See 57 Am.Jur.2d, Negligence §§ 101-105, 65 C.J.S. Negligence § 63(38). To take our analysis a step further, the cases teach that willful and wanton negligence may be of two types: (1) that involving an affirmative act by the defendant; and (2) that involving a failure to act, or an act of omission, by a passive defendant. The first type is the more usual, as, for example, the conduct we dealt with in Horne v. Georgia Southern & Florida Ry., 421 F.2d 975 (5th Cir. 1970), where the defendant railway company was found to be willfully and wantonly negligent when its trainman overtly (affirmatively) backed a train over a busy pedestrian crossing, failing to keep a lookout (reckless disregard) despite prior express warnings (actual knowledge) that injury was likely to result at the crossing. The train hit, then dragged to death, the plaintiff’s wife. We said there, quoting from an early Florida Supreme Court opinion: Where a party has inflicted an injury intentionally, or where it has been done through negligence, and hence unintentionally, and his conduct in doing it has been wanton or reckless of its injurious consequences, the contributory negligence of the person injured is not a defense to an action brought by him for such injury, [citations omitted] 421 F.2d at 980. In the cases involving a defendant’s failure to act, the conduct of the passive defendant has been held to be willfully and wantonly negligent only if the totality of the circumstances involved warrants such a finding; for example, if the actor knows that injury will likely result from his failure to take steps to correct a known danger on his property. See City of Boca Raton v. Mattef, 91 So.2d 644, 648 (Fla.1956); Banks v. Young Men’s Christian Ass’n of Greater Miami, 176 So.2d 570, 571 (D.C.A. 3), cert. denied, 183 So.2d 213 (Fla.1965). In City of Boca Raton the court, denying recovery for an alleged wrongful death of plaintiff’s husband, held that a property owner’s failure to act constitutes willful and wanton negligence only if the owner has knowledge of the danger or hazard, and knowledge that the plaintiff is about to be confronted with the danger. 91 So.2d at 648. Similarly, in Banks the defendant had failed to provide handrails or safety devices on stairs, allegedly in violation of a municipal ordinance, just as here the appellant violated the city swimming pool ordinance; the plaintiff, a licensee, was injured as a result of a fall on slippery stairs. The court held that defendant’s violation of the ordinance and its failure adequately to protect the plaintiff fell short of willful and wanton negligence. 176 So.2d at 571. See also Britz v. LeBase, 258 So.2d 811, 813-814 (Fla.1972). It is clear to us from the authorities cited that the appellant’s conduct in the instant case similarly falls short of willful and wanton negligence. We reach this conclusion by noting that the facts presented fall into the “failure to act” or “failure to protect” category of eases — plaintiff’s injury resulted from a condition on defendant’s premises, and not from an overt or affirmative act by defendant. Although defendant might have been held liable for negligence in failing to provide adequate lighting, in failing to fence in and lock its pool (in violation of the ordinance), and in failing to give adequate warning that the pool was dry and thus hazardous during the cleaning operation, we do not perceive here the “reckless indifference to the rights of others, that is, conduct which may be termed equivalent to an intentional violation of those rights” necessary under Florida law for a finding of willful and wanton negligence. In summary, the facts will not support a conclusion that defendant had a design, purpose, or intent to cause the injury here incurred or that there was a knowing and intentional failure on defendant’s part to perform such acts as might have prevented the injury. We hold that it was error for the court below to submit the issue of willful and wanton negligence to the jury when the evidence, as a matter of law, did not support a finding of that degree of negligence. While the tragedy inherent in the facts presented evokes the sympathy of this Court, the case should have been submitted to the jury with instructions based upon those principles of negligence law applicable to the evidence adduced. We have noted the other points raised by appellant and we are of the opinion that their resolution should properly be reserved for retrial below. The judgment appealed from is, therefore, reversed, and the cause is remanded for a new trial not inconsistent with the conclusions we have reached. JOHN R. BROWN, Chief Judge (concurring) : I concur fully in the Court’s decision and Judge Moore’s opinion for us. As this case points up a procedural problem of great importance and in which I have taken a special interest, I offer this concurrence in which my Brothers also join. I add this only to point out once again the remarkable utility of the general charge with special interrogatories under F.R.Civ.P. 49(a). See, Brown, Federal Special Verdicts: The Doubt Eliminator, 1968, 44 F.R.D. 338. What sets this case apart is that the trial judge — probably from an unfamiliarity with this device born out of a local traditional submission on a general charge, general verdict structure — went both too far and not far enough. The result is that the case must now be remanded for a wholly unnecessary retrial and probably a second and likewise unnecessary appeal. Added to this deficiency, which springs from the way the special interrogatories were structured when used with a general verdict, it was (albeit unknowingly) transformed from a 49(a) to a 49(b) verdict with all the shortcomings of that ancient and now discredited method. The resourceful trial judge was certainly on the right track in using interrogatories. But where he did not go far enough was in structuring the question on contributory negligence (Int. No. 5) to a “no” answer to wanton or willful (Int. No. 4). For since we have now held that there is sufficient evidence to sustain the finding of simple negligence (Int. No. 2) with proximate cause (Int. No. 3) we would be able to put this case to rest once and for all had the jury been allowed to answer contributory negligence (Int. No. 5) independent of the answer to wanton/willful (Int. No. 4). Had there been no conditional submission to Int. No. 5 a “yes” answer, in view of our legal holding on insufficiency of wanton/willful, would now result in a complete reversal and rendition. On the other hand, a “no” answer would permit us to affirm the judgment on the basis of simple negligence. Conditional submission is sometimes appropriate and occasionally required. But where there is a possibility both factually and on legal theories of synthesizing a valid verdict for or against a particular party conditional submission should be carefully avoided. That was the case here. For it was foreseeable that (i) upholding a wanton/ willful verdict would be a formidable (and now unsuccessful) task, (ii) the jury, independent of what it did on wanton/willful or what might happen to the finding on J.N.O.V. or appeal, could (and did) find simple negligence, and (iii) at the same time find no contributory negligence. The legal theories on wanton/willful and simple negligence/ contributory negligence were distinctly separate. What the Judge needed was answers on the critical facts of each theory. He could then enter a judgment corresponding to those fact-findings and we, on appeal, could affirm, modify or reverse the judgment according to whatever disposition the law would require if one or more of the distinctive findings were set aside as a matter of law. ■ In this day and time of explosive docket increases it is unfortunate that one of the busiest trial courts in the Fifth Circuit must now re-try the whole case on simple negligence and damages with a prospect of a second appeal to this court whose docket has exponentially increased over 400% since I960. But as with life generally this squandering of precious judicial resources may turn out to be a blessing. This and other recent cases point up sharply the oft-times simple structural changes which would make the 49(a) special interrogatory verdict complete for whatever adjustments the law demands. Finally, the use of special interrogatories and a general verdict is not only fraught with hazards while all the while depriving the court of the flexibility of 49(a), its use is wholly unnecessary. For if, as is likely, the Judge cast it in this form as a means of having the jury fix the amount, if any, of damages, that could more readily be done by adding as Int. No. 7 a simple inquiry to state the answers in dollars. The 49(a) verdict is indeed the doubt eliminator. Marvelous as it is with an elasticity which allows the Court to deal with nearly every contingency it is both a blessing and a burden. For the travail of anticipating all of the likely contingencies and then constructing the verdict in a way which will permit the jury intelligently and purposefully to supply the answers rests squarely on the trial court. See, Rorem v. Halliburton Oil Well Cementing Co., 5 Cir., 1957, 246 F.2d 427, 432; R. B. Company v. Aetna Insurance Company, 5 Cir., 1962, 299 F. 2d 753, 759 and Barrios v. Louisiana Construction Materials Company, 5 Cir., 1972, 465 F.2d 1157 [1972]. That is the lesson of this case. That is why progress comes even from unintended unseen mistakes. ON PETITION FOR REHEARING AND/OR CLARIFICATION PER CURIAM: It is ordered that appellee’s petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied; and it is Further ordered, that appellee’s request for certification to the Florida Supreme Court is denied. As to the request for clarification, the request is granted to the extent that the trial on remand is to cover the issues of defendant’s negligence and proximate cause; contributory negligence, if any, of the deceased; and damages. . The Special Interrogatories submitted to the jury, and the jury’s responses thereto, were as follows: 1. What was the status of the Plaintiff at the time of his going upon the premises of the Defendant? (Check one) (a) Invitee V (b) Licensee (c) Trespasser 2. With respect to the status of Jonathan Boyce as you find it in Interrogatory No. 1 and the duty owed to him under that status, do you find from the greater weight of the evidence that the defendant was negligent? Answer “yes” or “no”. Answer Yes 3. If your answer to Interrogatory No. 2 is “yes”, do you find from the greater weight of the evidence that the defendant’s negligence was a legal cause of plaintiff’s injuries? Answer “yes” or “no”. Answer Yes 4. If your answer to Interrogatory No. 3 is “yes”, do you find from the greater weight of the evidence that the defendant’s conduct was wanton or willful? Answer “yes” or “no”. Answer Yes 5. If your answer to Interrogatory No. 4 is “no”, was plaintiff himself negligent? Answer “yes” or “no”. Answer [not answered] 6. If your answer to Interrogatory No. 5 is “yes”, was plaintiff’s negligence a contributing legal cause of the injury complained of? Answer “yes” or “no”. Answer [not answered] (Trial Record, pp. 576-77.) Under Florida law, contributory negligence is not a defense to willful and wanton misconduct. Johnson v. Rinesmith, 238 So.2d 659, 660 (Fla.D.C.A. 3, 1970), Horne v. Georgia Southern & Florida Ry., 421 F.2d 975, 980 (5th Cir. 1970), Florida Southern Ry. v. Hirst, 30 Fla. 1, 11 So. 506, 513 (1892). . Neither the plaintiff nor the witness Bowen could testify as to the precise manner by which entry into the pool was made. . The plaintiff expired on January 14, 1972, approximately three months after judgment was entered below. Counsel for appellee indicated that death was not caused by any injuries involved in this litigation. (Appellee’s Br. at p. 11 n. 4). . Testimony from various witnesses at trial supported the finding that plaintiff was an invitee. In exchange for invitations to the parties of other fraternities or sororities, the Pike House some time in the past had issued a “standing invitation” to members of other fraternities and sororities to use the pool, and it was common practice for such members to use the pool both on “special” and other occasions. (Tr. at 128-30) The plaintiff also testified to having received a personal invitation to use the pool “any time” from an officer of the Pike House. Although the question of plaintiff’s “status” was properly submitted to the jury, and the evidence supported the ’ finding that he was an “invitee”, this issue may now be academic under Florida law, by virtue of Camp v. Gulf Counties Gas Co., 265 So.2d 730 (Fla.D.C.A. 2, 1972). This case appears to abolish in Florida the distinctions which previously have been drawn regarding the duties owed to invitees, licensees, and trespassers, and to substitute therefor a single duty of reasonable care under the circumstances existing. See 265 So.2d at 731, where the court states: We extrapolate, from a recent decision of our Supreme Court [Post v. Lunney, 261 So.2d 146 (Fla.1972)] a trend toward the sound view that there is not, as Lord Dunedin once suggested, “an absolutely rigid- line” separating invitees, licensees and trespassers. [citation omitted] It now seems clear that our court has come to the view that “The duty is not to invitees as a class, but to the very person himself who is lawfully there. What is reasonable care in regard to him depends on all the circumstances of the case.” See also Smith v. Arbaugh’s Restaurant, Inc., 469 F.2d 97 (D.C.Cir. 1972). . Section 9.09 of the Ordinances of the City of Coral Gables, enacted in 1961, requires that (e) * * * Unless the pool is entirely screened in, it must be surrounded by a protective wall or fence four feet (4') in height * * *. (f) Gates in the protective fence and/or wall required by the Zoning Code shall be the spring lock type, so that they shall automatically be in a closed and fastened position at all times. Gates shall also be equipped with a safe lock and shall be locked when the swimming pool is not in use. It was conceded by the appellant that the pool violated this ordinance, and that under Florida law violation of an ordinance constitutes negligence; but appel-. lant argued that either standing by itself, or as part of the total circumstances involved in this case, violation of this ordinance does not give rise to willful and wanton negligence. . At trial defendant-appellant attempted to establish that the plaintiff had been intoxicated when he dived into the pool. At page 13 of its Brief on appeal, however, appellant concedes that “ * * * there was no direct testimony that Boyce was intoxicated when he went into the pool. Some witnesses testified that Boyce did not seem intoxicated (Tr. 54, 171, 217, 271), though one police officer could smell alcohol when rendering aid. (Tr. 65).” Careful reading of the Transcript shows that every witness testifying indicated the opinion that Boyce did not appear intoxicated, that he spoke distinctly with no slurring, and that he was “sharp” and “lucid” immediately prior to and after the accident. The witnesses so testifying included the campus security officer (Tr. 84), the rescue personnel (Tr. 79-80), the attending physician at the hospital (Tr. 399), as well as the plaintiff’s companions that evening. Even the police officer alluded to supra by the defendant indicated that the alcoholic fumes he smelled while rendering aid to the plaintiff appeared to emanate from one other than the plaintiff. (Tr. 69-70). . At trial there was conflicting testimony as to whether there existed any lighting by which plaintiff could have seen that the pool was empty. There were outside lights around the pool area, regulated by an automatic timer, but these were not turned on. Testimony did not establish why the timer did not operate properly on the night of July 20, 1970. The trio of Parker, Lindberg and “Dennis”, arriving at the pool minutes after Boyce had suffered his injury, also had great difficulty in determining whether there was water in the pool. Parker and Lindberg testified that the trio approached the pool and that Parker and “Dennis” -were about to throw Miss Lindberg into it, and in fact began to do so, only to pull her back upon hearing Boyce holler that the pool was empty. Lindberg was caught in mid-flight by a leg, hitting her head on the side wall of the pool as a consequence. (Tr. 214-15, 268, 286-87) . See Carraway v. Revell, 116 So.2d 16 (Fla.1959); Glaab v. Caudill, 236 So.2d 180 (Fla.D.C.A. 2, 1970). . See note 1, supra, to the Court’s opinion. . In addition to the answers to the interrogatories the jury was supplied and filled out this form of general verdict: “WE, the Jury, find in favor of the plaintiff, Jonathan Boyce, and against the defendant Pi Kappa Alpha Holding Corporation, and assess damages in the sum of $850,000. SO SAY WE ALL. . . . /s/ W. Burdette Hunton Foreman” In the formal judgment the trial court quoted this general verdict and without any reference to the interrogatories entered final judgment for Boyce for $850,000. . See my recent concurrence in Wolfe v. Virusky, 5 Cir., 1972, 470 F.2d 831 in which I point out the dangers of a witting or unwitting lapse into 49(b). . For example, negligence (Int. No. 2) and proximate cause (Int. No. 3) compels it lest the jury either be confused by answering proximate cause with no negligence or risk returning an inconsistent verdict. . Though the figures are now out of date see, Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I; NLRB v. Amalgamated Clothing Workers of America, 430 F.2d 966 (5 Cir., 1970). . See, In re Double D Dredging Co., Inc., 5 Cir., 1972, 467 F.2d 468 [1972]; see also Burns v. Anchor-Wate Co., 5 Cir., 1972, 469 F.2d 730 [1972]. . I have previously discussed the trial Judge’s burden at some length. “Pitfalls there are, to be sure. But these abound in the law, indeed in any process of thoughtful deliberation looking toward resolution. And nearly all can be avoided by the sort of forethought which ought to characterize the solemn, awesome jury submission which is the climax, or near climax of the whole trial. More than that, to attain the great utility of the 49(a) Special Verdict the Judge is forced to think, and think hard. That is a virtue in itself. ‘The fact is that one of the sometimes unexpected, but wholesome results of special interrogatories jury submission is to emphasize the absolute necessity that there be first a clear understanding of the precise legal issues for jury resolution and then a translation of them into articulate questions which may be authoritatively answered by a simple categorical. In a general way this is to say that not only is it the jury’s imprecision which is hidden by the traditional general charge and verdict. Many juridical errors of omission and commission by court and counsel are likewise perpetually concealed.’ R. B. Co. v. Aetna Ins. Co., 5 Cir., 1962, 299 F.2d 753, 756-757. The thinking has to begin with the construction of the charge itself and particularly the climatic questions to be propounded and the types of alternative answers to be employed. This involves a bit of dreaming by the Judge with counsel by anticipating all of the likely, probable answers and then testing these several likely results against the possible existence of conflict or the type or types of judgments which could be rendered under them. With the celebrated vagaries of jury reaction, the Judge and counsel have hardly done their ‘homework’ unless they have constructed a submission which will reasonably meet these contingencies.” Brown, Federal Special Verdicts: The Doubt Eliminator, 1968, 44 F.R.D. 338 at 351.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Appellee, v. George NATHAN et al., Appellants. Nos. 493, 495, 503, 504, Dockets 72-1895, 72-1905, 72-1999, 72-2038. United States Court of Appeals, Second Circuit. Argued Jan. 26, 1973. Decided March 16, 1973. Ronald E. DePetris, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. N. Y., L. Kevin Sheridan, Asst. U. S. Atty., on the brief), for appellee. Jesse Berman, New York City (Lawrence Stern, New York City, on the brief), for appellant Nathan. Joseph Stone, New York City, for appellants Brown, Boulier and Nash. Before MOORE, HAYS and FEINBERG, Circuit Judges. FEINBERG, Circuit Judge: In August 1970, a one-count indictment was filed in the United States District Court for the Eastern District of New York, charging 21 defendants with conspiracy to violate the narcotics laws. 21 U.S.C. §§ 173, 174 (now 21 U.S.C. §§ 952, 960). The indictment also identified five co-conspirators who were not listed as defendants. Eleven of those charged in the indictment were tried in 1971. Ten were found guilty, and this court affirmed their convictions. United States v. Vega, 458 F.2d 1234 (2d Cir. 1972). In June 1972, the four defendants involved in this appeal — George Nathan, Robert Brown, Clarence Nash, and Rene Boulier — were brought to trial on the same indictment before Chief Judge Jacob Mishler and a jury. The Government’s case rested principally on the testimony of two co-conspirators. The jury could properly have found that the four appellants had worked for or dealt with a group headed by one Jesus Torrado, one of the 21 indicted and now a fugitive, who was based in New York City. Heroin and cocaine were imported into the country through Miami, and purchased there by Torrado’s men. They then brought the drugs to New York City and made sales to buyers in the city and elsewhere. Three of the four appellants were identified by Government witnesses as having purchased substantial quantities of narcotics from Torrado, apparently on a fairly regular basis. The fourth appellant — Rene Boulier — was described as a member of Torrado’s organization, performing such tasks as preparation and delivery of heroin and cocaine. All four appellants were convicted, and they now appeal on divers grounds. I. Double Jeopardy and a Prosecutorial Promise The most substantial argument raised on appeal is based upon legal proceedings that took place in the United States District Court for the Southern District of Florida. Appellant Boulier was indicted there with 12 others on October 14, 1969 for his role in a drug importation and distribution conspiracy. Seven or eight of the 36 participants named in the Florida indictment were also identified as co-conspirators in the instant indictment in New York, which was filed ten months later. On December 20, 1971, a superseding information was filed in the Florida court, charging that Boulier, together with three named individuals (two of whom had also been named in the New York indictment), and others unknown, had conspired to violate 26 U.S.C. § 4704(a) by purchasing and selling heroin not in or from the original stamped package. Boulier pleaded guilty to the information, and the original Florida indictment was dismissed. Boulier asserts that his guilty plea to the federal information in Florida precluded his conviction under the New York indictment by operation of the Double Jeopardy Clause. Judge Mishler rejected this claim, concluding that the conspiracy alleged in the information was separate from and not merely one component of the conspiracy described in the New York indictment. We need not decide whether the two conspiracies charged were identical in fact. It is sufficient to observe that the two convictions were based upon different statutory violations; the second, unlike the first, required a showing of defendant’s knowledge of illegal importation. That a defendant may be punished for multiple violations of the narcotics laws arising from a single transaction is well settled, see Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1957); and we are not aware of any constitutional requirement that all such violations must be tried together. See, e. g., United States v. Jones, 334 F.2d 809, 811 (7th Cir. 1964), cert. denied, 379 U.S. 993, 85 S.Ct. 707, 13 L.Ed.2d 613 (1965). Boulier advances another argument based upon the Florida proceedings. The supersession of the original indictment by the information and Boulier’s guilty plea were the outgrowth of an agreement between the federal prosecutor in the Southern District of Florida and Boulier’s attorney. Under this agreement, Boulier was to provide federal authorities with information concerning the sale and distribution of narcotics in the United States and Latin America. In exchange, the indictment would be dismissed, Boulier would plead guilty to the lesser charge in the information, and would receive probation. In addition, the United States Attorney in that district apparently assured Boulier that the Government would agree to the dismissal of the indictment pending in the Eastern District of New York. Based upon the latter promise, which was obviously never carried out, Boulier urges that the Government should be estopped from prosecuting him in this proceeding. We put to one side such questions as the authority of one United States Attorney to bind another or the proper remedy for a defendant who has been deceived by such a promise. The record indicates that Boulier failed to carry out his part of the bargain by refusing to disclose the promised information and hence is in no position to invoke the agreement now. II. Evidence of Later Crimes All four appellants challenge the introduction of evidence of a series 'of post-conspiracy transactions and, in the case of George Nathan, two arrests for possession of cocaine. As to the former argument, evidence of a conspirator’s post-conspiracy activity is admissible if probative of the existence of a conspiracy or the participation of the alleged conspirator. Lutwak v. United States, 344 U.S. 604, 617-619, 73 S.Ct. 481, 97 L.Ed. 593 (1953); United States v. Bennett, 409 F.2d 888, 893 (2d Cir.), cert. denied, 396 U.S. 852, 90 S.Ct. 113, 117, 24 L.Ed.2d 101 (1969). Hence the prosecution could properly introduce evidence that appellants had, on a number of occasions after August 1968, engaged in drug transactions and other activities that usually accompany such criminal conduct. Appellant George Nathan specifically complains about the Government’s use of rebuttal testimony by two police officers, who described the circumstances of Nathan’s two post-conspiracy arrests on drug charges. Neither arrest led to a conviction, and Nathan asserts that they should not have been used against him by means of extrinsic proof. However, appellant opened the door to such an inquiry through his own testimony. On direct examination he declared that he did not use cocaine or heroin and had never engaged in the transportation or distribution of any narcotic drug; on cross-examination, while admitting the two arrests, he denied that he had possessed narcotics at the time of his second arrest or that he had known of the presence of drugs in his apartment at his first arrest. The testimony of the officers suggested the strong likelihood that Nathan had in fact been knowingly in possession of cocaine on both occasions, and the trial judge could therefore, in his discretion, admit such testimony to disprove Nathan’s assertions. See Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L. Ed. 503 (1954); United States v. Keilly, 445 F.2d 1285, 1289 (2d Cir. 1971), cert. denied, 406 U.S. 962, 92 S.Ct. 2064, 32 L.Ed.2d 350 (1972) (limiting United States v. Glasser, 443 F.2d 994 (2d Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 96, 30 L.Ed.2d 95 (1971)). III. Brown’s Business Card and His 1945 Arrest At trial, the Government introduced into evidence a business card of appellant Robert Brown, who owned a record store. Brown challenges the admission of the card as unwarrantedly prejudicial. The card in question had been taken from Jesus Torrado’s apartment when he was arrested. The relevance of the card is that it served as circumstantial evidence of Brown’s involvement with Torrado and the conspiracy. Used for this purpose, introduction of the card was proper. See United States v. Canieso, 470 F.2d 1224, 1232 (2d Cir. 1972); United States v. Armone, 363 F. 2d 385, 403-404 (2d Cir.), cert. denied, 385 U.S. 957, 87 S.Ct. 398, 17 L.Ed.2d 303 (1966). Brown called three character witnesses to vouch for his reputation for veracity. On cross-examination, two of them were asked whether they were aware that Brown had been arrested in 1945 for possession of a knife and a revolver and in 1968 for possession of a dangerous weapon. Brown claims that the reference to the earlier arrest was improper because of its remoteness and its tenuous relationship to his veracity. We doubt whether knowledge of such an ancient event of this nature is a prerequisite for a reliable accounting of a defendant’s reputation for honesty in the community. Cf. United States v. Puco, 453 F.2d 539, 543 (2d Cir. 1971) (impeachment of defendant on cross-examination by 21-year old conviction held improper). However, at trial Brown did not specify the grounds now asserted to exclude evidence of the 1945 arrest. See United States v. Silverman, 430 F.2d 106, 125-126 (2d Cir. 1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L. Ed.2d 123 (1971). In addition, he did not object to the much more damaging reference to the 1968 arrest. In view of these circumstances and the trial court’s very broad discretion as to the permissible scope of cross-examination of character witnesses to test the basis for their statements, see Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L. Ed. 168 (1948), Brown has not made a “clear showing of prejudicial abuse of discretion.” Id. at 480, 69 S.Ct. at 221. IV. Speedy Trial and Sufficiency Claims Appellant Brown was arrested in June 1970 and indicted in New York two months later. He was not tried until June 1972 and urges that the indictment should have been dismissed, as he requested below, because this delay deprived him of his right to a speedy trial. We disagree. Although the gap between arrest and trial was two years, there' apparently was no purposeful delay and both sides were partly responsible for the slow pace of the proceedings. See Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Most significantly, Brown had been scheduled to go to trial in June 1971 with the first group of alleged conspirators, but he requested a severance, which, when granted, led to a substantial delay. Moreover, he demonstrates no constitutionally cognizable prejudice. See id. at 532, 92 S.Ct. 2182. Finally, we note that since the Government was ready for trial in June 1971, there was no violation of this circuit’s Rules Regarding Prompt Disposition of Criminal Cases, which went into effect shortly thereafter. Appellants Brown and Nash argue that the Government failed to establish — as it must under section 174, see United States v. Agueci, supra note 5 — that they knew that the drugs in question had been illegally imported. This argument ignores the evidence that both appellants were at various times in possession of quantities of heroin. As Judge Mishler charged, this is sufficient to justify an inference that they were aware that it had been illegally imported. See, e. g., Turner v. United States, 396 U.S. 398, 408-418, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). V. Miscellaneous Contentions Finally, appellants offer a number of additional reasons for reversal, including the prosecutor’s assertedly prejudicial summation, allegedly improper venue in the Eastern District, and the discovery of “new” evidence with regard to appellant Nash. On the first point, we find that the challenged prosecutorial remarks, when placed in context, are for the most part unobjectionable and that such error as may have occurred was of minor significance. As to venue, the use by the conspirators of John F. Kennedy International Airport for flights to Miami and Detroit to obtain or sell narcotics was a sufficient basis for venue to lie in the Eastern District. With regard to the third point, the evidence in question — hospital and doctor’s records showing that Nash had been hospitalized for a few days in late July 1969 — would have been of little or no help to appellant’s case and, in any event, could have been sought during the pendency of the trial. We have considered the other points raised by appellants, but none warrants further discussion. Affirmed. . Two of these co-conspirators testified for the prosecution in this case. The other three have been convicted in the United States District Court for the Southern District of Florida of violating 21 U.S.C. § 174. . Of the remaining six defendants, five are fugitives and one has pleaded guilty to a separate charge. . Appellant George Nathan was sentenced to 15 years in prison and a $20,000 fine. The other three appellants each received a prison term of ten years and a fine of $10,000. . Based upon the facts presented to us, this would appear to be a close question. See United States v. Wilshire Oil Co., 427 F.2d 969, 976 n. 12 (10th Cir.), cert. denied, 400 U.S. 829, 91 S.Ct. 58, 27 L.Ed.2d 59 (1970) (defendant must establish such identity by a preponderance of the evidence). It is true that the two conspiracies overlap in time (the Florida information alleged a conspiracy lasting from April 15, 1968 to October 23, 1969; the New York indictment charged a conspiracy that continued from January through August 1968), that two of Boulier’s three co-conspirators named in the Florida information also were identified as participants in the eonspiracy at issue here, and that the criminal activity in both conspiracies involved distribution of narcotics. But these common elements in themselves do not necessarily establish a double jeopardy violation. See United States v. Barzie, 433 F.2d 984 (2d Cir. 1970) (per curiam), cert. denied, 401 U.S. 975, 91 S.Ct. 1194, 28 L.Ed.2d 324 (1971). More serious, however, is the Government’s admission that one of the two overt acts alleged in the information — apparently the more serious one — “may well be the same as” one of the acts listed in the New York indictment. Moreover, and perhaps most significantly, the testimony of the government agent offered at the Florida hearing to test the basis for Boulier’s guilty plea described the conspiracy there charged in terms that at least suggest that it may be the same as the conspiracy here in question. . Such knowledge is required under 21 U.S.C. § 174, see United States v. Agueci, 310 F.2d 817, 824-826 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1016, 10 L.Ed.2d 12 (1963), although in certain situations it can be established by inference based upon possession. See part IV infra. . The Court in Gore decided this question on both constitutional and legislative grounds. . This situation is to be distinguished from the one dealt with in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), cited by appellant. In that case, six men had been robbed while participating in a poker game. Ashe was tried for robbing one of the victims and was acquitted. He was then tried for robbing another of the players and was convicted. The Supreme Court reversed on the ground that the first jury had determined that Ashe had not participated in the robbery, a necessary element in the conviction by the second jury. In a concurring opinion in Ashe, id. at 448, 90 S.Ct. 1189, as well as in a separate opinion in Abbate v. United States, 359 U.S. 187, 196, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), Justice Brennan urged the Court to decide that all violations growing out of a single transaction must be tried together. While this may frequently be the preferable practice, see United States v. Jones, supra, 334 F.2d at 812, it has not been held to be required by the Double Jeopardy Clause so long as the proscription of Ashe is not transgressed. See, e. g., United States v. DeMarrias, 441 F.2d 1304 (8th Cir. 1971). See generally Comment, Ashe v. Swenson: Collateral Estoppel, Double Jeopardy, and Inconsistent Verdicts, 71 Colum.D.Rev. 321 (1971). . The original indictment charged a conspiracy to violate former 21 U.S.C. § 174, punishable by a minimum sentence of five years in prison. The information charged a conspiracy under 18 U.S. C. § 371 to violate 26 U.S.C. § 4704(a), which did not preclude the possibility of probation. . Following Boulier’s failure to provide the information, the Florida prosecutor recommended a three-year sentence on his guilty plea, and Judge Joe Eaton sentenced him to two years in prison. . Judge MisMer carefully, instructed the jury as to the limited purpose for which such evidence could be used. . The related activities consisted of exchanging or transferring large sums of cash. In a separate argument appellants urge that there was a fatal variance between the indictment and the proof. In substance, however, this point is merely a variation of their argument against the introduction of evidence of post-conspiracy conduct, and it has no merit. . He also argues that the card should have been excluded because the Government did not establish a chain of custody. This claim is without merit since the agent who had seized the card had written an identifying number on it, which he recognized at trial. . Brown claims only that the delay permitted the Government to call an additional witness. He does not allege that his own preparation was hampered. Moreover, he was free on bail during the two-year period. . The effective date of the Rules was July 5, 1971. . With respect to the cocaine, Judge Mishler charged that an inference of knowledge may be drawn from the proven possession of at least one kilo of the substance during the pendency of the conspiracy. See United States v. Gonzalez, 442 F.2d 698, 705, 709 (2d Cir.) (en banc), cert. denied, 404 U.S. 845, 92 S.Ct. 146, 30 L.Ed.2d 81 (1971). . Two such flights were listed in the indictment and proved as overt acts in furtherance of the conspiracy. . A Government witness, Stanton Garland, testified that in “[t]he latter part of July 1989” he saw Nash hand $17,000 to Nash’s father (named in the indictment as a co-conspirator), who in turn gave the money to Jesus Torrado, presumably in payment for narcotics. The fact that Nash was in the hospital for a few days in late July scarcely amounts to a refutation of the testimony in question. . A recess of five days was called after Garland had testified. Thus, Nash had ample opportunity to obtain the records when he was already aware of tlieir arguable relevance to the Government’s case against him.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Audrey S. HARTEL, Plaintiff-Appellant, v. The LONG ISLAND RAIL ROAD COMPANY, Defendant-Appellee. No. 104, Docket 72-1452. United States Court of Appeals, Second Circuit. Argued Oct. 25, 1972. Decided March 28, 1973. Arnold B. Elkind, New York City, for plaintiff-appellant. George M. Onken, Jamaica, N. Y. (Jay E. Gerber, and Paul C. Saunders, New York City, of counsel), for defendant-appellee. Before MOORE, HAYS and MULLIGAN, Circuit Judges. MOORE, Circuit Judge: Some time between 6:30 and 7:00 A. M. on Sunday, February 18, 1968, John Hartel, a ticket agent for the Long Island Rail Road Company (LIRR) arrived at the Mineóla, Long Island, railroad station to open the ticket office. He entered the waiting room to open the steel shutter covering the ticket window. While so doing, one of three men with a gun stepped up behind him and announced a hold-up. When Hartel attempted to flee, he was shot in the back and killed. Plaintiff-appellant in this action, Hartel’s widow, sought to recover damages from her husband’s employer in her own right and as administratrix of her husband’s estate under the Federal Employers’ Liability Act (FELA) 45 U.S.C. § 51 et seq. The trial court found that plaintiff had “introduced no evidence showing that defendant should have reasonably foreseen the possibility of a holdup at the Mineóla Station” and granted defendant’s motion for a directed verdict. From the judgment dismissing the complaint, plaintiff appeals. In addition to charging error in directing a verdict in favor of the defendant, plaintiff asserts that four proffered items of evidence were improperly excluded. An essential ingredient in plaintiff’s case was that she establish that the LIRR should have foreseen that a criminal attack (robbery and murder) might be made upon its ticket agent at the Mineóla station. In reviewing this directed verdict this Court must view the evidence and all inferences therefrom in the light most favorable to the plaintiff. O’Connor v. Pennsylvania R. R., 308 F. 2d 911 (2d Cir. 1962). We have done this, and affirm the decision of the court below. The FELA provides: Every common carrier by railroad * * * shall be liable in damages to any person * * * or, in ease of the death of such employee, to his or her personal representative, * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier * * *. 45 U.S.C. § 51. To establish her case plaintiff had to show that the danger to her husband from armed criminals was, or should have been foreseen by the defendant. Once this was shown, a further showing that defendant was negligent in whole or in part in failing to minimize this danger would have been required. In attempting to demonstrate the foreseeability of the criminal assault which caused her husband’s death, plaintiff offered to prove that in the preceding four years there had been ten robberies or attempted robberies at defendant’s stations located between 4.7 and 29.8 miles from the Mineóla station. Two of these had occurred in the month immediately preceding the Mineóla holdup. Judge Levet refused to permit this proof. Plaintiff here argues that evidence of prior holdups should have been admitted to show that the LIRR did have knowledge of the dangers ticket agents faced. In each of the cases cited by plaintiff to support this position, however, the courts have specifically limited evidence of prior incidents to those occurring at the exact locus of the incident giving rise to the litigation. In addition, they have required that the circumstances under which such incidents occurred must have been substantially the same as those in the action brought. Thus, in Cahill v. New York, N. H. & H. R. R., 236 F.2d 410, 411 (2d Cir. 1956), the case most heavily relied upon by plaintiff, a listing of the collisions which had occurred at a particular intersection was admitted to show the railroad’s knowledge of the danger of such incidents at that place. In the instant case no prior robbery had occurred at the Mineóla station. Therefore, Judge Levet was correct in excluding the evidence of prior robberies. See also Plough v. Baltimore & O. R. R., 164 F.2d 254, 256 (2d Cir. 1947). Plaintiff also sought to introduce testimony concerning a conversation between herself and a staff attorney of the LIRR named Donnelly. Just before Hartel’s funeral Donnelly, who had been Hartel’s friend, told plaintiff that her husband had once mentioned to him that he was afraid of working at the Mineóla station. Direct testimony by Donnelly was not offered. In addition, it was not shown that Donnelly was authorized to receive notice of dangerous working conditions or that, by this conversation, Hartel had intended to give the LIRR such notice. Under these circumstances it was not error for Judge Levet to exclude such hearsay testimony. Schilling v. Delaware & H. R. R., 114 F. 2d 69, 71 (2d Cir. 1940). By attempting to introduce correspondence and testimony as to conversations between the ticket agents’ union and the LIRR, which related to requests for increased protection for ticket clerks from the dangers of armed robbery, plaintiff sought to demonstrate defendant’s awareness of the risks its employees faced. When it was determined that neither this correspondence nor the union leader’s conversations with railroad management made specific reference to the Mineóla station, this evidence was excluded. Plaintiff made no offer of evidence which would have shown that there was any unusual danger at the Mineóla station. To be admissible to show the foreseeability of a criminal assault upon an employee for which an employer could be held liable under the FELA, we think that the evidence must be such that it did in fact call, or should have called, to the employer’s attention the special dangers found at a particular location. In this regard the case of Inman v. Baltimore & O. R.R., 361 U.S. 138, 80 S.Ct. 242, 4 L.Ed.2d 198 (1959) is instructive. There an intoxicated motorist was violating five traffic statutes when he ran down a train flagman. The Supreme Court affirmed the decision of the Ohio Court of Appeals reversing a jury verdict for plaintiff. In his concurring opinion Justice Whittaker emphasized the complete failure of the evidence to show that the negligence of the railroad had contributed in any way to the flagman’s injury. Reduced to substance, the simple facts are that petitioner, a crossing flagman, while standing in a well-lighted intersection alongside a passing train in the nighttime and swinging a lighted red lantern in each hand, was struck, knocked down and run over by a drunken driver. What, I ask, did respondent do or omit that caused or contributed to cause that casualty? How could it have prevented the casualty? Petitioner says that respondent failed to provide him with “enough protection”. About the only way, as I perceive, that respondent could protect its crossing flagmen against injury from such lawless conduct by third persons would be to provide them with military tanks and make sure they stay in them while within or moving about crossing-intersections in the performance of their duties — and I am not even sure that this method, though ironclad, would be certain protection to a flagman against lawless injury by third persons, for someone might shoot him, an act not very different, it seems to me, from the drunken driver’s conduct which injured petitioner in this case, and for which injuries he insists, and four members of this Court agree, a jury should be permitted to require respondent to pay damages. How this can be thought to square with any known concept of “negligence” is beyond me. 361 U.S. at 142, 80 S.Ct. at 244. Plaintiff’s final point is that a confession of one of the perpetrators of the felony murder of Hartel should have been admitted into evidence to show the circumstances under which the robbery occurred. In this case it was not error to refuse to admit any evidence detailing the circumstances of the robbery when the foreseeability of the crime was not established. Although absent foreseeability, plaintiff’s case was deficient as a matter of law, the Trial Court also said: “[0]n judicial appraisal, I find that negligence on the part of the defendant railroad could have played no part in the death of plaintiff’s intestate.” We agree. Even if the LIRR had installed, as plaintiff now suggests, either a steel shutter opening from the inside or a peep-hole which might have enabled the agent to observe persons in the waiting room, these measures would not have protected him from assault and murder. The judgment below, dismissing the complaint, is affirmed. HAYS, Circuit Judge (dissenting): I dissent. There was enought evidence to present a jury question on whether the railroad exercised due care to make the employee’s place of employment reasonably safe. As the Supreme Court has pointed out, Congress expressed a strong preference for jury determination of actions arising under the FELA. See, Rogers v. Missouri Pacific Railroad Co., 352 U. S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). This is especially true when the issue involved is the negligence of the railroad. “The Congress when adopting the law [FELA] was particularly concerned that the issues whether there was employer fault and whether that fault played any part in the injury or death of the employee should be decided by the jury whenever fair minded men could reach those conclusions on the evidence.” 352 U.S. at 508, 77 S. Ct. at 449. In the instant case, when the evidence is viewed, as we must view it, in the light most favorable to the appellant, it is clear that a jury could properly find that the employer’s failure to install a peephole in a situation where the danger was great and the corrective action required only a small effort, was negligence and that this negligence played some part in the employee’s death. The trial court also erred in excluding evidence which tended to establish the defendant’s knowledge of the hazards to which the ticket agent was exposed. The testimony of the union official concerning his conversations with railroad officials tended to establish that the defendant was aware that the steel doors with no peephole presented a safety problem. “I requested that the steel doors be removed from this station [Mineóla], as well as other stations, and also that a peephole be put in there and a silent alarm to protect the employees, including protection when they open these offices at six and six thirty in the morning.” The exclusion of evidence of prior holdups at defendant’s ticket offices was also error. In FELA cases, where foreseeability has been an issue as in the instant case, proof of prior accidents has been held admissible. See, Cahill v. New York, New Haven & Hartford R. Co., 236 F.2d 410 (2d Cir. 1956); Plough v. Baltimore & Ohio R. R. Co., 164 F.2d 254 (2d Cir.), cert. denied, 333 U.S. 861, 68 S.Ct. 740, 92 L.Ed. 1140 (1947). The majority holds that these cases do not require admission of the evidence of prior holdups in the instant case, because the holdups did not occur “at the exact locus of the incident giving rise to the litigation.” I do not read these cases so narrowly. I would allow the evidence to be admitted since it tended to establish defendant’s knowledge of the hazards to which the ticket agent was exposed. . Hartel v. Long Island Rail Road Co., 356 F.Supp. 1192 (S.D.N.Y. filed Mar. 3, 1972). . Id. . There had been one robbery in 1964, four in 1966, three in 1967, and two in January, 1968, just prior to the crime in question here. During two of these completed or attempted crimes, the ticket agent had been assaulted. . Several questions concerning the admissibility of this confession were briefed by the parties. The confession, rather than direct testimony, was offered because the perpetrator, serving a lengthy sentence for this crime, had refused to discuss it without first talking to a lawyer. Since no evidence concerning how the crime was committed could have been admitted until it was shown to have been foreseeable, we express no view on the other possible grounds for excluding this confession. . See note 1, supra.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Arthur Ben LEWIS, Jr., Petitioner-Appellee, v. Harold J. CARDWELL, Warden, Respondent-Appellant. No. 72-1679. United States Court of Appeals, Sixth Circuit. Argued Dec. 8, 1972. Decided April 5, 1973. Jeffrey L. MeClellant, Asst. Atty. Gen., for respondent-appellant; William J. Brown, Atty. Gen. of Ohio, on brief. Bruce A. Campbell (Court-appointed), Campbell, Boyland & Schwarzwalder, Columbus, Ohio, for petitioner-appellee. Before PHILLIPS, Chief Judge, and WEICK and MILLER, Circuit Judges. WILLIAM E. MILLER, Circuit Judge. This appeal is before the Court for review of a judgment and order of the district court conditionally granting a writ of habeas corpus pursuant to the power vested in that court by 28 U.S.C. § 2241. The case arises from a brutal shotgun slaying for which the appellee, Arthur Ben Lewis, Jr., was indicted, tried and subsequently found guilty of first degree murder by a state trial court jury. It is well to remember that this Court’s sole duty in this case, as in all similar eases, is to determine whether the petitioner’s constitutional rights were violated, regardless of the evidence pointing to the guilt of the accused. The single issue presented for resolution is the correctness of the District Court’s holding that the appellee’s fourth and fourteenth amendment rights were violated by the admission at his trial of evidence obtained from a warrantless seizure and subsequent search of his automobile. The District Court’s exhaustive and comprehensive opinion is reported in 354 F.Supp. 26 (S.D.Ohio 1972). Since we are in full agreement with the opinion, we find it unnecessary to do more than to emphasize and further clarify several points made below. Only the skeletal facts relevant to the single search and seizure question need be summarized here. During the course of investigating this July 19, 1967, slaying, the law enforcement officers focused their attention on the appellee. On July 24, 1967, Delaware County Deputy Sheriff Lavery, one of the officers assigned to the case, talked with the appellee at his place of business and at that time viewed his 1966 Pontiac automobile. From other information gathered in the investigation Lavery believed that the appellee’s car had been used to push the murder victim’s automobile over a river embankment at the scene of the crime. On September 28, 1967, Deputy Lavery and an official from the State Attorney General’s office again interviewed the appellee and on October 9, 1967, the appellee was contacted by telephone and requested to appear the next day at the offices of the Division of Criminal Activities in Columbus, Ohio, for further questioning. Early the next morning, October 10, 1967, Deputy Lavery obtained a warrant for the appellee’s arrest but did not attempt to procure a warrant for the search of his car. The appellee arrived at the offices of the State Attorney General shortly after 10:00 A.M. October 10, 1967, where several staff members of the Division of Criminal Activities and Deputy Lavery questioned the appellee for a substantial part of the day. The arrest warrant was not served on the appellee until approximately 5:00 P.M. that afternoon, an event which occurred shortly after the arrival of his attorneys. Around the time of appellee’s arrest the law enforcement officials obtained the keys and the claim check for the appellee’s car which was parked in a pay parking facility about a half block from the state offices. One of the state officials then called a wrecker to seize the automobile. The seizure was effected in this manner, with the result that none of the investigators personally viewed the vehicle or ascertained whether the car was in fact parked in the lot. The seizure was made without obtaining a warrant. A lab technician viewed the car in the impounding lot on‘October 11, 1967, and searched the trunk of the car. He also removed paint samples from the exterior surface of the appellee’s automobile, consisting of the outer coat of paint and the two primer coats underneath. At the appellee’s trial this technician testified that he found no difference in the color, texture or the order of layering of paint of these samples as compared with foreign paint marks found on the victim’s car. The respondent raises three grounds in attempting to support the warrantless seizure and subsequent search of the appellee’s automobile: first, that the search of the automobile was with the consent of the appellee; second, that the search was incident to a valid arrest; and third, that the vehicle itself was an instrumentality of the crime in plain view which the officers had probable cause to believe was used in the commission of a felony. As a corollary to the third contention, the respondent claims that no search was in fact conducted since no items were seized from the interior of the car but rather that the paint scrapings were removed from the exterior surface of the vehicle as a result of a scientific examination of an instrumentality of the crime. The district court’s finding, which we deem to be correct, that the first two contentions were without merit is so fully discussed in its opinion that nothing further need be said with respect to these issues. We confine ourselves to some additional observations concerning respondent’s third contention. Initially, what may be termed a point of semantics needs clarification. The respondent’s use of the term “instrumentality of the crime” is an attempt to raise the ghost of an outmoded concept which was laid to rest by the Supreme Court in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), where the Court dispensed with the “mere evidence” distinction which had worked its way into the law of search and seizure. Mr. Justice Brennan’s words deserve repetition: Nothing in the language of the Fourth Amendment supports the distinction between “mere evidence” and instrumentalities, fruits of crime, or contraband. On its face, the provision assures the “right of the people to be secure in their persons, houses, papers, and effects . . .,” without regard to the use to which any of these things are applied. This “right of the people” is certainly unrelated to the “mere evidence” limitation. Privacy is disturbed no more by a search directed to a purely evidentiary object than it is by a search directed to an instrumentality, fruit, or contraband. A magistrate can intervene in both situations, and the requirements of probable cause and specificity can be preserved intact. Moreover, nothing in the nature of property seized as evidence renders it more private than property seized, for example, as an instrumentality ; quite the opposite may be true. Indeed, the distinction is wholly irrational, since, depending on the circumstances, the same “papers and effects” may be “mere evidence” in one case and “instrumentality” in another. 387 U.S. at 301-302, 87 S. Ct. at 1647. Mr. Justice Stewart also reiterated the demise of the “instrumentality of a crime” and “mere evidence” distinction in Coolidge v. New Hampshire, 403 U.S. 443, 464, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The respondent’s third contention is thus premised on an unwarranted assumption. As aptly stated by the district court: “The instrumentality theory assumes that any object used in the commission of a crime may be seized at any time without a warrant as long as the officers have probable cause to believe that the object was used in the commission of a crime and the officers are lawfully in a position to view the object.” 354 F.Supp. at 41. We fully approve the district court’s answer to this premise: “The police cannot seize an automobile on the theory that it is an instrumentality of a crime which is in plain view in calculated disregard for the Fourth Amendment requirement that application be made to a judicial officer for a search warrant absent exigent circumstances.” 354 F.Supp. at 41. Since no exigent circumstances existed in this case the respondent’s instrumentality theory must fail. The district court indicates that for purposes of deciding the case it is “assuming” that the officers were in a position legally to apply the plain view exception to the warrant requirement. However, the facts of this ease clearly establish that even though the officers had probable cause to seize appellee’s automobile they in fact never observed the vehicle at all but rather merely dispatched a wrecker to the site where they believed the car was parked. Stated in its simplest form there can be no “plain view” when there is no “view” at all. To attach such an extension to the plain view exception to the warrant requirement would undercut the very, foundations of fourth amendment protections and consequently such a proposition is untenable. It is for this very reason that Mr. Justice Stewart, in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), emphasized the importance of inadvertence in discovering the evidence when applying the plain view doctrine. We are in accord with this reasoning. Hence, when law enforcement officers have prior knowledge amounting to probable cause establishing the nexus between the article sought and the place of seizure a warrant must be obtained in order to protect the fourth amendment principle that warrantless seizures are per se unreasonable in the absence of exigent circumstances. The respondent’s contention that no search was in fact conducted of the vehicle because the paint scrapings were removed from the exterior surfaces of the car during a scientific examination of evidence of the crime is also untenable. This reasoning is unsound because it is based on the premise that the car was properly seized without a warrant —a contention which we have held to be incorrect under any of the theories advanced by the respondent. Also we cannot agree that standing alone, the police actions involving the vehicle were not a search. As correctly stated by the district court in footnote 10 of its opinion: Respondent also apparently argues that there was no search and seizure because the only thing seized — paint —was from the exterior of the car. No cases are cited supporting this novel proposition. Admittedly, testimony .describing the exterior color of the car would not run afoul the Fourth Amendment if the witness had lawfully been in a position to observe its color. However, the intrusion herein was not limited to an observation of the exterior of the automobile. A search was conducted of the layers of paint beneath the visible surface of the vehicle. 354 F.Supp. at 35. In our view the action of the police lab technician in lifting the layers of paint from the exterior car body was as much a search as his opening the trunk of the vehicle. The judgment of the district court is affirmed. . The district court opinion states : Accordingly, it is ordered that the writ of habeas corpus issue ninety days after the filing of this Opinion and Order, and that petitioner be released - from custody, unless within such ninety day period State officials initiate action for a new trial of petitioner. If State officials initiate action for a new trial, it is ordered that no writ of habeas corpus shall issue. Lewis v. Cardwell, 354 F.Supp. 26 (S.D.Ohio (1972). . The district court found that the keys were actually obtained from the appellee’s attorney who relinquished them to the state officials under protest to avoid a physical confrontation. The full details of this incident are recounted in the lower court’s opinion. What is important for our purposes is that the court found that the appellee did not consent to the seizure and search of his automobile. This finding is not clearly erroneous. . The district court spells out the lack of exigent circumstances at several points in its opinion. Of particular significance is the fact that the police had planned for several weeks to seize the vehicle but made no effort to obtain a warrant. . The Court is cognizant of the fact that Part II 0 of Mr. Justice Stewart’s opinion was only concurred in by three other justices. However, another justice, Mr. Justice Harlan did concur in the judgment in that case and consequently the evidence seized from the Coolidge automobile was suppressed. Further, Mr. Justice Harlan concurred in Part II D of Mr. Justice Stewart’s opinion, a section specifically designed to counter the arguments “that can be made against our interpretation of the ‘automobile’ and ‘plain view’ exceptions to the warrant requirement.” Coolidge v. New Hampshire, 403 U.S. 443, 473, 91 S.Ct. 2022, 2042, 29 L.Ed.2d 564 (1971). This Court has accepted the full reasoning of Mr. Justice Stewart’s opinion concerning the plain view and automobile exceptions just last year in Cook v. Johnson, 459 F.2d 473 (6th Cir. 1972). We reaffirm the correctness of that position. See Annot., 29 L.Ed.2d 1067, 1073-1078 (1972). . This same error appears in the Ohio Supreme Court’s opinion on the appellee’s appeal, State v. Lewis, 22 Ohio St.2d 125, 258 N.E.2d 445 (1970). There the court, relying on People v. Teale, 70 Cal.2d 497, 75 Cal.Rptr. 172, 450 P.2d 564 (1969), upheld the search as proper since the car was an instrumentality of the crime. However, the Ohio Supreme Court failed to note that in Teale the initial seizure of the automobile was justified as being incidental to the defendant’s arrest. Respondent’s reliance upon Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) is misplaced since the underlying premise of the Supreme Court’s holding in that case was that the initial seizure of the vehicle was properly made pursuant to the California Narcotics statute, providing for seizure and forfeiture proceedings. Therefore, the seizure was not constitutionally infirm. . On this appeal the respondent cites two cases which he considers analogous to the police actions here. Both cases involve the police obtaining a vehicle’s serial number by opening the door of a car already properly in police custody. In both cases the police acted without a warrant. In United States v. Graham, 391 F.2d 439, 442 (6th Cir. 1968), this Court stated : Where police obtain an article for safekeeping from a suspect taken into custody pursuant to a lawful arrest, we find no authority which requires them to get a search warrant before examining the article for the purpose of finding a serial number by which the article might be accurately identified. [Emphasis added]. This Court went on to hold: It is here concluded and held that an examination of an automobile properly in police custody is not a search thereof, and that evidence of the serial number of such car is not excludable from evidence because it was obtained in the course of such an examination. 391 F.2d at 443 [Emphasis added]. This Court relied on Cotton v. United States, 371 F.2d 385 (9th Cir. 1967), in Graham, supra. In Cotton the Ninth Circuit stated: They [the police] also had a duty to keep a record of the property that they had impounded so that it could be returned to the suspect or to its owner in due course. For reasons stated below, we do not think that the mere opening of the door of the car for the purpose of making such a record was, under the circumstances, a search, but if it was, the circumstances under which it was done make that search an entirely reasonable one. 371 F.2d at 392. The court in Cotton, supra, also specifically limited its holding, stating: When Cotton acquired the car, the serial number and motor number came with it. And we would limit the right to check [the identification number] to those cases in which there is a legitimate reason to do so. 371 F.2d at 393. See also, United States v. Pearson, 448 F.2d 1207 (5th Cir. 1971); United States v. Johnson, 431 F.2d 441 (5th Cir. 1970). We would note that other courts have held that obtaining vehicle serial numbers by opening a car door under similar circumstances is an illegal search. See, e. g., Simpson v. United States, 346 F.2d 291 (10th Cir. 1965). The Graham and Cotton cases are clearly distinguishable from the instant case. In both cases the vehicles were already properly in police custody — -a situation different from the facts before us. Also both Graham and Cotton were Dyer Act cases and are limited to the situation where the police obtained the serial number of cars for identification purposes.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Lawrence B. THOMAS, Appellee and Cross-Appellant, v. E. J. KORVETTE, INC., Appellant and Cross-Appellee. Nos. 71-2061, 71-2062. United States Court of Appeals, Third Circuit. Argued Jan. 8, 1973. Decided March 26, 1973. As Amended May 3, 1973. F. Hastings Griffin, Jr., Philadelphia, Pa., for E. J. Korvette, Inc. James E. Beasley, Philadelphia, Pa., for Lawrence B. Thomas. Before McLAUGHLIN, VAN DUSEN and ROSENN, Circuit Judges. OPINION OF THE COURT McLAUGHLIN, Circuit Judge. This appeal is based on the entry of judgment in plaintiff Lawrence Thomas’ favor in accord with F.R.Civ.P. 59, as explained in 6A Moore’s Fed.Prac. 59.15 [1]. The sum of $150,000 was awarded to Thomas on his malicious prosecution suit against E. J. Korvette. Motions for a new trial and judgment n. o. v. were denied by the trial court, D.C., 329 F. Supp. 1163. Also involved is a cross-appeal by plaintiff-appellee on the amount of damages. The jury awarded $750,000 to plaintiff Thomas, but this amount was remitted by the trial judge from $750,000 to $150,000. The action was brought against Korvette’s by Thomas, who was the security head at Korvette’s King of Prussia, Pa. store at the time of the incident in question. On November 12, 1965 Thomas was seen by another store employee coming down an escalator to the ground floor with a package under his arm. He was observed looking around a bit at the bottom of the escalator and again glancing about while directly in front of an outside door of the store. This was approximately 11:30 A.M. Thomas left the store with the package. There was no evidence at this time that the package had been paid for. Thomas was then seen placing the package in the trunk of his automobile which was in the store parking lot. On the report of this by the observing employee to the store management, a security officer from one of Korvette’s other stores was summoned to investigate. A Mr. Smith was the investigator called upon, who was experienced in the field. Smith confronted Thomas with questions concerning the alleged package in his car. Thomas claimed that he did have two games in his trunk with an attached register receipt, signifying his payment. Thomas opened his car trunk and an inspection produced no receipt or even any tape residue on the game package. Thomas claimed that the questioning of a specific cashier and register tape would verify his story. Such did not turn out to be the case. Thomas refused to take a polygraph test at that time. He had previously undergone such a test, at the time of his appointment as security head, and was familiar with its usage and format. On the basis of these facts, Smith determined that there was a bona fide case against Thomas and so he called for the police. On the arrival of police (7:20 P.M.) Thomas claimed that he had purchased the two items in the toy department, carried them to his car through the front door, and placed them in the trunk of his auto. The police, considering the facts as presented and the story, felt that there was a sound cause of action (P. 678a) against Thomas. The complaint against Thomas was then signed by employee Brown who had witnessed Thomas’ actions in leaving the store with the game. These were all of the facts concerning the incident which Brown had to predicate his filing of the complaint. There was a hearing before a Justice of the Peace at which time many factual disputes became evident. Thomas here had a further explanation as to the events on the day in question. He alleged, in effect, that he had carried the first game out of the store while following a suspected shoplifter. He asserts that he placed it in his trunk for convenience and paid for it later in the afternoon when he paid for a second game which he had put in his trunk along with the first game. He produced, at this time, a receipt from the toy department cash register from the date in question, but it did not correspond exactly to the price of the two games plus tax. He alleged some error by the check-out girl as the cause of this discrepancy. As a result of the conflict in factual accounts and the small sum of money involved, the Justice of the Peace decided to discharge the case putting costs of $11 on defendant Thomas. Thomas thereafter instituted this action for malicious prosecution against Korvette. The elements for a cause of action for malicious prosecution are stated in Res. Torts (1938) § 653. Summarizing, the Restatement says that if the proceedings were initiated (1) without probable cause, and (2) with the primary purpose other than that of bringing an offender to justice, a private person who initiated such proceedings might be held liable, in cases where a criminal proceeding had been instituted by defendant against plaintiff and where termination of the proceedings was in favor of the accused. Although there are numerous grounds raised on appeal at this time the result in all malicious prosecution cases is primarily affected by whether or not there was probable cause for the filing of the complaint. Probable cause in malicious prosecution matters is defined in Miller v. Pa. R.R. Co., 371 Pa. 308, 314, 89 A.2d 809, 812 (1952) as “reasonable ground of suspicion supported by circumstances sufficient to warrant an ordinary prudent man in the same situation in believing that the party is guilty of the offense.” See also, Neczypor v. Jacobs, 403 Pa. 303, 308, 169 A.2d 528, 530 (1961) which states, “By probable cause is not meant an actual state of guilt. One is justified in launching a criminal prosecution if the facts convince him, as a reasonable, honest and intelligent human being, that the suspected person is guilty of a criminal offense. The arresting person may be in error, but if his error is an honest one, not motivated by personal malice, bias, or revenge, the law will hold him harmless, regardless of the eventual result of the criminal prosecution.” The problem arises with regards to who should decide that question in this litigation. The trial court allowed the jury not only to make special factual determinations, but also to decide the ultimate question concerning the existence of probable cause. Korvette disputes this disposition by the trial judge declaring that this is a decision solely for the court. Korvette asks for a judgment n. o. v. but according to 5A Moore’s Fed.Prac. 50.07 [2], such may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a “one-way” verdict proper, judgment n. o. v. should not be awarded. The court must view the evidence in the light most favorable to the party who secured the jury verdict. In light of the factual conflict, obvious from the different versions of the story told here, there is no foundation to order a judgment n. o. v. However, motions for a new trial are based on the court’s discretion and “the appellate court will exercise its power to review the lower court’s ruling and reverse when the lower court * * * failed to exercise its discretion; or where the trial court abused its discretion.” 6A Moore’s Fed.Prac. 59.05 [5]. Our query therefore is to determine if there was prejudicial error by the trial court in this suit which adversely affected substantial rights of appellant as to dictate a new trial on the merits. An examination of the Restatement of Torts and how it has been interpreted by pertinent Pennsylvania case law will help to decide this question. Restatement of Torts, § 673, Comment d, adopted by Pennsylvania in Miller v. Pa. R.R. Co. 371 Pa. 308, 89 A.2d 809 (1952) considering this type situation, states: “ * * * upon the issues of favorable termination and probable cause, the jury has only the function of finding the circumstances under which the defendant acted. The court determines whether, under those circumstances, the termination was sufficiently favorable to the accused, and whether the defendant had or had not probable cause. Where there is no conflict in the testimony as to what the circumstances were, the court has no need for finding of the jury. The jury is not called upon to act unless there is a conflict in the testimony which presents an issue of fact for its determination. “The respective functions of the court and jury in determining the issue of probable cause, can be exercised by them in one of two ways. The better but less usual method is to require the jury to find a special verdict setting forth the circumstances under which they find that the proceedings were initiated. Upon these findings the court then determines whether the defendant had probable cause. The usual method is for the court to charge the jury under what combination or combinations of circumstances, which may be found under the evidence, the defendant did or did not have probable cause for initiating the proceedings.” (Emphasis supplied). Each side here has mentioned Simpson v. Montgomery Ward, 354 Pa. 87, 46 A. 2d 674 (1946) which discussed the restatement and cited certain words which, they feel, support their respective positions on the point. Korvette urges that Simpson holds, in malicious prosecution suits, the question of probable cause for the criminal prosecution must be decided by the court. Thomas cites Simpson, supra, as standing for the proposition that where there is a conflict in testimony, the trial judge must submit the issue of probable cause to the jury. We think that each side is correct to an extent. This appeal provides a good discussion of the law in the area and illustrates the complicated function of determining probable cause in problems containing factual conflict. Res. 673, Comment d, provides two solutions to the type of issue before us; a “better” as well as the “usual” method. This appeal presents notice of the difficulty which a jury might have distinguishing probable cause from obvious guilt and innocence in certain areas. In that kind of dilemma, Simpson recognizes the necessity of judicial determination of probable cause. This is the situation in which Res. 673d dictates using the “better but less usual method” of determining probable cause, according to Simpson. That designated situation being where “jurors are likely to confuse the issue of the guilt or innocence of the defendant in the criminal case, out of which the civil action originated with the basic issue, whose determination decides the civil action. That basic issue is the want of probable cause for the criminal prosecution”, Simpson, 354 Pa. at 92, 46 A.2d at 676. In the instant matter, this specific situation (the high likelihood that the jury might confuse guilt or innocence with probable cause) did exist, and yet even so, the question was submitted to the jury. The problem can be seen plainly through the undisputed facts and circumstances in this appeal. The attorney for Thomas accentuated and compounded the difficulty by his summation when he told the jury “Did he steal those games? That is the only question because when you get the answer to that question, then all of the legal questions about probable cause, reasonable investigation, and all that, fall right into place * * (489a). Furthermore, the trial judge himself recognized the morass which this statement created for the jury when he remarked, at sidebar, as appellant notes in his brief, “Let me point out that your (plaintiff’s counsel) entire argument to the jury was directed to the issue of guilt or innocence, virtually your entire argument.” Those statements and the complicated nature and confusing tone of much of the evidence presented at trial, make it very clear that this was an excellent example of why a probable cause question is for the court to decide after the jury has answered appropriate special interrogatories, even though there was conflict in the testimony. Some indication of the jury’s confusion of the real question here might be evidenced by their inquiry on rendering a verdict, at which time they were extremely concerned with what would become of the police and arrest records of Thomas as a result of their actions. Submission of the question of probable cause to the jury was certainly not harmless error, since the jury, because of its finding of “no probable cause” came up with an enormous award in Thomas’ favor. “An improper submission * * * of a material issue to the jury is another ground for a new trial.” Moore’s Fed. Prac. 59.08 [2], There were additional factors present which also show the necessity of a new trial. Korvette has questioned the district court’s actions in permitting plaintiff to introduce evidence on a 1969 slander claim. Korvette asserts this to have been most damaging to its defense; that alleged slander was not pleaded or included in the pre-trial order and was barred by the statute of limitations. Some mention of that claim had been made at the pre-trial solely with respect to the damage item of loss of earning capacity, (p. 23a). It was determined admissible only to serve to “possibly shed light on any claim of malice in connection with the original transaction.” (p. 31a). However, through the action of the trial court granting Thomas’ motion to amend his complaint, it allowed an entirely new claim to be considered by the jury while it was passing upon the original contention of the plaintiff. The decision of whether or not to permit a change (in the pre-trial order) is within the discretion of the trial judge and “appellate interference with this discretion should be kept at a minimum.” Ely v. Reading Co., 424 F.2d 758 (3 Cir. 1970). We wholeheartedly agree with and follow that conclusion in its proper place but, in this instance we have the kind of circumstance which produced manifest injustice by its late addition. There was much evidence offered on this separate slander issue, which was not done merely to show malice. In our case, a verdict had been reached on the slander alone and the assertion of damages had even been argued. Finally, after all this had been given in great detail to the jury, the trial judge stated that the 1969 slander charge, as such, was barred by the statute of limitations, and consideration of it should be limited to the assertion of malice. We are satisfied that the insertion of the slander attack was not merely harmless error or “favorable to defendant.” It is impossible to guarantee that a jury of laymen would be able to cast the testimony concerning slander completely aside, in reaching its decision on damages. Thomas’ lawyer made deliberate reference to it, when discussing the question of punitive damages. From the sum which the jury awarded plaintiff, ($750,000) it is crystal clear that the prejudicial effect of the admission of this testimony even if relevant to, and admitted only for, the issue of malice, far outweighed its probative value. It should not have been allowed into evidence. The manner in which it was used, was not covered at pre-trial and under the circumstances, it should not have been allowed at trial. It definitely had an unwarranted detrimental effect on appellant’s defense. A new trial on the merits is necessary in this appeal. There are many interrelated allegations of error, all of which must be examined and can be disposed of by a new trial. The defendant is entitled to have the district court judgment amended to enter judgment for it on the 1965 slander court and to provide for a new trial in accordance with this opinion. ROSENN, Circuit Judge (concurring). This is an appeal from a judgment for damages growing out of an incident at the Korvette Store at King of Prussia, Pennsylvania, on November 12, 1965. Pennsylvania substantive law applies since federal jurisdiction here is based upon diversity of citizenship. Thomas, appellee and cross-appellant, was arrested on November 12, 1965, while employed by Korvette as its security chief at its King of Prussia store. At about 11:30 A.M. on that day he was observed by Brown, the assistant manager, taking a package out of the store and placing it in the trunk of his parked automobile. Brown immediately reported the incident to the store manager and, thereafter, procured Smith, an experienced security manager at one of its other stores, to investigate the incident. Following Smith’s investigation, the local police were called, a complaint was filed, and Thomas was arrested. He was released by Magistrate Williams on bail for a later hearing. At the hearing, Magistrate Thomas heard testimony of the prosecution, after which he stated that the sum involved “isn’t important enough to hold” defendant Thomas for court and dismissed the case upon payment of the costs of prosecution by the defendant. Thomas later brought an action for false arrest, malicious prosecution, libel, and slander. The jury found in favor of Korvette on the libel count, and the trial judge instructed the jury not to award damages on the basis of a 1969 slander count. In a bifurcated trial, after first determining liability on the remaining counts, the jury returned a verdict for the appellee, Thomas, in the sum of $250,000 compensatory and $500,000 punitive damages. These were remitted except for $100,000 and $50,000 respectively. On this appeal, Korvette raises a number of issues, namely, did the court err in: (1) Submitting the question of probable cause to the jury; (2) denying Korvette’s motion for judgment n. o. v. on the false arrest and malicious prosecution counts; (3) denying the motion for judgment n. o. v. on a 1965 slander count; and (4) permitting introduction of evidence as to the 1969 slander. Because society is concerned with balancing effective enforcement of the criminal law against protecting the individual from “unjustifiable and oppressive litigation of criminal charges,” courts have laid down rules to safeguard private persons who aid in the enforcement of the law against suits for malicious prosecution. In balancing these interests, the Pennsylvania Supreme Court apparently regards the interest of society in law enforcement as the more important. See Miller v. Pennsylvania R.R. Co., 371 Pa. 308, 310, 89 A.2d 809, (1952). Therefore, an action for malicious prosecution will not lie unless there has been a previous unsuccessful criminal proceeding that was prosecuted without probable cause and with malice. The plaintiff has the burden of proving each • element. Want of probable cause is an indispensable element of the action. It is determined as of the date the prosecution was initiated and is in no sense dependent upon the guilt or innocence of the accused. Byers v. Ward, 368 Pa. 416, 421, 84 A.2d 307, 310 (1951). In Miller v. Pennsylvania R.R. Co., 371 Pa. 308, 314, 89 A.2d 809, 811-812 (1952), the Pennsylvania Supreme Court defined probable cause as “a reasonable ground of suspicion supported by circumstances sufficient to warrant an ordinary prudent man in the same situation in believing that the party is guilty of the offense.” I. ALLOCATION OF FUNCTIONS BETWEEN JUDGE AND JURY. The crucial question raised here is whether, in the trial of an action for malicious prosecution, the determination of the presence or lack of probable cause is for the court or the jury. The trial judge, in denying Korvette’s motion for judgment n. o. v., held that the question was for the jury. He concluded that there were disputed factual issues with respect to probable cause, and that “it would have been error to declare that, as a matter of law, there was probable cause in this case.” The trial judge submitted interrogatories to the jury in which he asked them to determine whether there was probable cause for the arrest of Thomas on November 12, 1965, and whether there was probable cause to press his prosecution on November 18, 1965, the date of the hearing. The normal rule of law is that questions of fact are for the jury and questions of law are for the court. Because of societal concerns in protecting from intimidation citizens who aid public justice, however, and because of the difficulty for jurors of distinguishing between the issue of lack of probable cause and the issue of defendant’s criminal guilt or innocence, variations in this principle of law have developed in malicious prosecution suits. In Curley v. Automobile Finance Co., 343 Pa. 280, 290, 23 A.2d 48, 53 (1941), the court noted that the general rule did not prevail in malicious prosecution cases, “for in such cases the trial judge and not the jury determines whether or not the prosecutor in the criminal case (i. e., the defendant in the civil action trying) had an honest belief in the existence of a probable cause for the prosecution’s initiation.” In Simpson v. Montgomery Ward & Co., 354 Pa. 87, 46 A.2d 674 (1946), the court had a further opportunity to review the question. It reversed a judgment in favor of plaintiff Simpson, concluding that the trial judge “committed a fundamental error when he submitted the basic existence or nonexistence of probable cause for the arrest of Mrs. Simpson to the jury.” It stated: There is no principle more firmly embedded in the law than the principle that in case of malicious prosecution, the question of want of probable cause for the criminal prosecution which gave rise to the civil action, is a question not for the jury but for the court. Simpson appeared to approve the analysis in the Restatement of Torts that there are two possible courses of action for the trial judge in exercising his responsibility to decide probable cause in the event of controverted factual issues: The respective functions of the court and jury in determining the issue of probable cause can be exercised by them in one of two ways. The better but less usual method is to require the jury to find a special verdict setting forth the circumstances under which they find that the proceedings were initiated. Upon these findings the court then determines whether the defendant had probable cause. The usual method is for the court to charge the jury under what combination or combinations of circumstances, which may be found under the evidence, the defendant did or did not have probable cause for initiating the proceedings. Restatement of Torts § 673, comment d at 437. In a later case, Miller v. Pennsylvania R. R. Co., 371 Pa. 308, 89 A.2d 809 (1952), the Pennsylvania Supreme Court adopted comment d. See Hugee v. Pennsylvania R. R. Co., 376 Pa. 286, 289, 101 A.2d 740, 742 (1954). II. FEDERAL OR STATE LAW. With these precedents in mind, it is appropriate to discuss what law — state or federal — governs this issue. The problem of the relationship between state and federal law is a perennial one. The most significant Supreme Court proclamation for our purposes is Byrd v. Blue Ridge Electrical Cooperative, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958). In that ease, a workman brought an action to recover damages for personal injuries suffered in the course of his job constructing electric lines. His employer was hired to construct the lines for the defendant cooperative. The cooperative defended on the ground that the state workmen’s compensation statute made its remedy exclusive against the cooperative as well as the plaintiff’s immediate employer, because the work being done was part of the cooperative’s trade, business or occupation.” The established practice in the state courts was to have the question whether work was part of the defendant’s “trade, business or occupation” decided by the judge, not the jury. The Court held that the federal courts should, instead of following state practice, employ a federal rule and let the jury decide this question. It reasoned: The federal system is an independent system for administering justice to litigants who properly invoke its jurisdiction. An essentia] characteristic of that system is the manner in which, in civil common-law actions, it distributes trial functions between judge and jury. . Id. at 537, 78 S.Ct. at 901. Moreover, it noted that “there is a strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal courts.” Id. at 538, 78 S.Ct. at 901. This policy should prevail unless the state rule is bound up with state-created rights and obligations or unless the policy is outweighed by the objective of preventing litigation from coming out one way in federal court and another way in state court. Id. Applying these principles, I have concluded that the choice between the two methods detailed in Restatement of Torts § 673, comment d, of treating the probable cause issue is a procedural question which a federal court should resolve according to its policies and standards. Pennsylvania courts do not regard the particular allocation of functions between judge and jury as a matter bound up with the fundamental rights of the parties, but as a procedural matter. The procedural character, in their view, is illustrated by the options available to the trial judge. See Simpson v. Montgomery Ward & Co., 354 Pa. 87, 46 A.2d 674 (1946). The choice would not here affect the outcome in any predictable fashion. Moreover, this circuit has previously held that a rule attempting “to define when the jury must decide, as its function, whether the particular elements of liability exist” impinges on a field reserved for federal law. Gatenby v. Altoona Aviation Corp., 407 F.2d 443, 446 (3d Cir. 1968); see Lind v. Schenely Industries, Inc., 278 F.2d 79, 84 (3d Cir.), cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60 (1960). The resolution of this issue is one of the “details related to its own conduct of business” on which a federal court need not follow state law. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 555, 69 S.Ct. 1221, 1230, 93 L.Ed. 1528 (1949); cf. 1 J. Moore, Federal Practice ¶0.312 (2d ed. 1959). Our next inquiry is whether federal policy should permit the trial judge to exercise the option of submitting disputed questions of fact in terms of the ultimate legal question as to the existence or nonexistence of probable cause to the jury or, rather, require that he follow the admittedly better rule? Under the better rule, the court would decide the legal question of probable cause based upon special findings of the jury as to any disputed questions of fact. In exercising our supervisory power over procedural rules this court should require the federal courts in this circuit to follow the latter course except, possibly, in the most unusual circumstances. This is compelled by several considerations: the great difficulty for the laymen on the jury in separating the question of guilt or innocence in the criminal proceeding from the question of probable cause for the prosecution; plexity involved in instructing the jury as to the proper verdict based upon its choice among the many different possible combinations of factual findings ; and the importance to society and the courts of encouraging citizens to aid in prosecuting violators of the law. the com- Because the trial court submitted the basic issue of probable cause to the jury, I believe defendant is entitled to a new trial. In that trial, the court should instruct the jury to find only the facts. He should submit special interrogatories pertaining to the critical, disputed issues of fact. He should not ask the jury any questions requiring legal conclusions, such as whether any of the individuals representing the defendant possessed a reasonable belief in the plaintiff’s guilt. III. JUDGMENT N.O.V. ON FALSE ARREST AND MALICIOUS PROSECUTION. Korvette argues that it is entitled to judgment n. o. v. on the actions for false arrest and malicious prosecution because, inter alia, Thomas failed to prove lack of probable cause for the prosecution and improper motive, and it enjoyed statutory immunity for the arrest. The trial judge was of the opinion that there was probable cause for Thomas’ original arrest but concluded that the question was for the jury. We recognize that on this appeal the facts must be viewed in the light most favorable to Thomas. Thomas acknowledged at trial the following basic facts: He had removed the Getaway Chase game from the Korvette store and placed it in the trunk of his car at about 11:30 A.M. without paying for it. When he opened the trunk of his car in the presence of Smith later in the day, after he allegedly made the payment, the two games were there and the register receipt could not be found. When he and Smith returned to the security office at the store, Smith at Thomas’ request, pulled “the detail tape from the end register” and, in an effort to corroborate Thomas’ claim of payment, “went over the detail tape looking for a total sale of $10.69” (the price of the two games plus tax). Smith said he could not find the amount <fti the tape and suggested that Thomas might have been mistaken as to the register at which the alleged payment was made, and that he might possibly have gone through one of the other two registers. Smith suggested pulling the detail tapes from the other two registers. Although Thomas insisted that he was not mistaken, Smith, nonetheless, went out and checked. Upon his return, about five minutes later, he reported that he was unable to find the appropriate amount on the tapes of the other'two registers. Smith suggested that Thomas take a lie-detector test or polygraph examination. Thomas refused. At the. trial of this action, Thomas testified that when the cashier of the “end register” was called by Smith to the security office and questioned whether he had made a purchase at her booth she replied affirmatively. She was asked whether he purchased the two games found in his trunk and, at first, she said, “I think so.” She then said, however, “I am not positive.” Thomas acknowledged that the store rules laid down in the security manual for employees clearly prescribed that employee purchases were to be paid for and left at the sale department until they could be picked up and taken to the time clock area. Thus, by the time Smith called the police, the merchandise had been found in the trunk of Thomas’ car, Thomas was unable to produce a receipt, none of the register tapes supported the alleged purchase, there was an apparent violation of written security regulations, and Thomas had refused to submit to a lie-detector test or polygraph examination. He also testified at trial that he refused to tell the police his version of the facts because “I had been advised by my attorney not to make a statement.” Under these circumstances, Brown finally signed a complaint in the evening. Magistrate Williams found that there was probable cause for the issuance of process. This proof without more would have failed to establish lack of probable cause and presence of improper purpose; on the contrary, it would have established probable cause as a matter of law. The one constraining factor that prevents me from concluding that there was probable cause as a matter of law is the testimony given by Thomas on cross-examination that he had told Smith prior to the arrest that his friend Ward, a former security employee at the store, had witnessed his payment for the games. Thomas’ testimony on this point is extremely suspect since he never mentioned Ward to the police on the evening of the alleged theft or at the preliminary hearing. Nevertheless, it was the jury’s obligation to evaluate his credibility and to make the pertinent finding of fact. If the jury believed Thomas that he told Smith about Ward, in light of the apparent corroboration by the cashiers (equivocal as it was) of Thomas’ claim to have purchased the games, then in these particular circumstances I believe that Pennsylvania law would place a burden on the store personnel to attempt to check with Ward prior to commencing a prosecution. Korvette also contends that under Pennsylvania statutory law, it was entitled to detain Thomas without liability for false arrest. Under this statute, any person willfully concealing unpurchased goods or merchandise of any store is prima facie presumed to have so concealed it with the intention of converting it to his own use. The statute further provides in part that: Persons so concealing such goods may be detained, in a reasonable manner and for a reasonable length of time, by a peace officer or a merchant or a merchant’s employee in order that recovery of such goods may be effected. Such detention . . . shall not render such peace officer, merchant or merchant’s employee, criminally or civilly, liable for false arrest, false imprisonment or unlawful detention. 18 Pa.Stat. § 4816.1. The apparent intent of this statute is to afford merchants some leeway in deciding whether to detain and prosecute someone they suspect of theft. Even under Thomas’ version at trial, he was. prima facie presumed to have concealed the first game with the intent to steal it at the time he removed it, since he admits he had not paid for it at that time. Our focus, however, must be on the time of detention and prosecution. At that time Thomas alleged the goods were purchased. He testified at trial that he told Smith that Ward would corroborate the payment. In view of this disputed testimony, I cannot say as a matter of law that the statutory presumption attaches. Pennsylvania could provide that a person may be detained whenever he cannot produce a receipt for goods allegedly purchased, but it has not. The trial judge was of the opinion that a separate question for the jury was whether, “the production of the receipt at the Justice of the Peace hearing should have, or did, convince the defendant’s employees of plaintiff’s innocence.” I believe that this should not have been a separate inquiry and that, even if it were, the facts as to the existence of probable cause did not change materially- The preliminary hearing on November 18, 1965, was not conducted by the issuing authority, Williams, but by Justice of the Peace Frank Thomas. At this hearing, Brown and Smith .appeared and gave testimony and were' subjected to searching cross-examination by counsel for Thomas. Thomas, however, did not testify. His counsel merely produced a cash register receipt that Thomas allegedly found on the day following his arrest in the trunk of his ear, in the sum of $10.35, not $10.69, the price of the two games plus tax. The receipt that was produced indicated that it was issued on November 12, 1965, at about 4:15 P.M. (Smith arrived at the store at 4:00 P.M. to conduct the investigation.) In my opinion, the hearing, if anything, increased the reasonableness of Korvette’s belief in Thomas’ guilt. Thomas’ trial version of the events was put into the record at this hearing. It conflicted with his earlier version contained in the police report. This conflicting version combined with the production of the alleged register receipt with its discrepancies and reflecting payment at about 4:15 P.M. could only have increased Korvette’s suspicion. “[Probable cause] is not confined to the truth of the matters that lead to the prosecution, but extends to their appearanee as indicating the guilt or innocence of the accused.” Bryant v. Kuntz, 25 Pa.Super. 102, 106 (1904) [Emphasis added]. Moreover, the question whether the receipt should have convinced Korvette of plaintiff’s innocence is not relevant since Korvette took no action after the hearing and the magistrate decided to dismiss the case because of the sum involved. Whether judgment n. o. v. should have been entered on the false arrest and malicious prosecution counts is an extremely close question in this case, but it appears that the court did not err since there was a crucial, disputed question of fact pertaining to the alleged communication to Smith of Ward’s presence at the time of payment for the games. IV. THE SLANDERS. A. The 1965 Slander Thomas also claimed that Korvette had slandered him several days after his arrest. To prove this cause of action, he called Mary Turner, an employee of Korvette. She testified that several days after the November 12 arrest, Smith asked her whether Thomas had purchased anything on the day of the arrest. She replied that she saw Thomas go through the end register but did not know what he purchased. She proceeded to testify over objection that: He said the reason he was asking me is because Mr. Thomas had over a thousand dollars’ worth of toys or something to that effect. [Emphasis ours.] The court submitted the slander claim to the jury on the basis of an allegation in paragraph 8 of the complaint charging Korvette with speaking and publishing false and defamatory words on November 12, 1965. The complaint does not state the defamatory words uttered and, as the trial judge noted in his opinion, “the plaintiff’s pre-trial statement and the final pre-trial order were singularly uninstructive with respect to this incident.” Despite these deficiencies, the court permitted this testimony to go to the jury because the incident was closely related to the main thrust of plaintiff’s claim. In my opinion, however, this testimony is insufficient to support an independent cause of action because of plaintiff’s failure to carry his burden of proof on an essential element. 12 Pa. Stat. § 1584a(1)(d) specifically provides that the plaintiff in a defamation action has the burden of proving “[t]he recipient’s understanding of [the communication’s] defamatory meaning.” See Harbridge v. Greyhound Lines, Inc., 294 F.Supp. 1059 (E.D.Pa.1969). This statute is a verbatim incorporation of Restatement of- Torts § 613(1) (d). The Restatement comment on this section explains that the plaintiff is relieved of this burden only if the communication is defamatory on its face. Restatement of Torts § 613, comment on subsection (1) at 301. The alleged statement is not defamatory on its face. In its cryptic context, it cannot be said that the defamation is obvious. The statement is ambiguous and equivocal. It can be reasonably construed to refer to toys purchased or otherwise acquired by Thomas, although it is doubtful that this was the intention. Therefore, Thomas had the burden of proving that Mrs. Turner understood the words to be defamatory. He did not carry his burden. Moreover, Mrs. Turner was not certain of the exact words used — “they were something to that effect.” She did not elaborate. The trial court, for these reasons, erred in refusing to direct a verdict of the defendant at the conclusion of the evidence and to enter judgment n. o. v. on this count. B. The 1969 Slander Since this case must be retried, comment should be made with respect to the admissibility of testimony relating to an alleged 1969 slander. According to the evidence, Thomas applied for a job with the Miley Detective Agency in February 1969. Snyder, an employee of Miley, testified at trial that in checking Thomas’ background he telephoned Korvette’s King of Prussia store. After he informed the operator of what he wanted he was referred to a man who identified himself as the security manager. Snyder testified that the Korvette employee asked him to wait and, after leaving the telephone for a few minutes, came back and said, “Well, if you want a thief working for you, go ahead and hire him.” Snyder said he was then told that Thomas had been arrested for larceny by employee in November 1965 and that when he was arrested in 1965 he lied about his actions “and on that basis he could not be trusted, and he was fired the same day.” The trial court admitted this evidence and instructed the jury that it could be used to “shed light on the existence of malice or ill will relating back to the incident of November 1965.” I think this was an abuse of discretion. This evidence was irrelevant on the question of malice. The individual who allegedly spoke these words was not identified and his authority to give character information about employees was not clearly established. Over three years had elapsed between the arrest and this telephone conversation. Moreover, there was no evidence to connect Smith or Brown, who initiated the 1965 arrest and prosecution, with the 1969 conversation. Finally, there was nothing to indicate that the speaker knew that the statements were untrue; nor was there anything to show that anyone at Korvette’s responsible for the making or retaining of the records or anyone connected with the prosecution knew the statements to be false. Unless they were thought to be untrue they would not indicate malice — even on the part of the phantom speaker. The prejudicial effect of the admission of this evidence outweighed its very speculative probative value. For the reasons stated in this opinion I would reverse the judgment of the district court and remand the case with directions to enter judgment n. o. v. on the 1965 slander count and to retry the false arrest and malicious prosecution counts in accordance with this opinion. Judge Van Dusen concurs in this opinion, as well as in Judge McLaughlin’s opinion, subject to the understanding that (a) the procedure described in Part II of this opinion as to the submission of special interrogatories to the jury shall govern at the new trial, and (b) the 1969 slander evidence was irrelevant on the issue of malice and should not have been admitted, as stated under IV-B of this opinion. . The store policy was to attach receipts to the packages by means of cellophane tape. Thus it was felt by Smith that had there been a piece of tape affixed at one time to the package or packages, there would at least have remained some evidence of tape residue, even if the receipt itself were now missing. . Act of June 24, 1939, P.L. 872 § 816.1, added July 5, 1957, P.L. 501 § 1, as amended 18 P.S. § 4816.1 subsection (b) provides in pertinent part: “(b) Any person wilfully concealing unpurchased goods or merchandise of any store * * * either on the premises or outside the premises of such store, shall be prima facie presumed to have so concealed such article with the intention of converting the same to his own use without paying the purchase price thereof within the meaning of subsection (a) of this section * * * Persons so concealing such goods may be detained, in a reasonable manner and for a reasonable length of time, by a peace officer or a merchant or a merchant’s employee in order that recovery of such goods may be effected. Such detention by a peace officer, merchant or a merchant’s employee shall not render such peace officer, merchant or merchant’s employee, criminally or civilly liable for false arrest, false imprisonment or unlawful detention.” . Store policy was to total all sales singly on the register so that no mistake would be made in totals. However, it was admitted that some of the clerks did not absolutely follow this policy at all times and instead added the cost of more than one item in their heads. . The Justice of the Peace did not feel this case deserved serious attention saying “The amount of money involved isn’t important enough to hold him.” (for court) P. 717 (a) “ * * * I am not worried about the 11 bucks for a deal like this.” P. 718(a) . The term abuse, when applied to a court’s exercise of its discretion is peculiarly of legal significance, wholly unrelated to the meaning of the same term when used in common parlance. Action that would be necessary in ordinary affairs to make one guilty of an abuse, connotes conduct of a different grade than what is meant when a court is said to have abused its discretion. Abuse of discretion in law means that the court’s action was in error as a matter of law. And when such abuse exists, reversal will be ordered. . For the type of special questions, see those suggested by the Supreme Court of Pennsylvania in Simpson v. Montgomery Ward & Co., 354 Pa. 87, 46 A.2d 674 (1946). . This slander claim was based on an alleged ’phone call made in February 1969 by a Mr. Snyder of Miley Detective Agency, to Korvette’s security department. Mr. Thomas had applied for a Job with Miley at this time, and Snyder was supposedly calling Korvette’s to check Thomas’ background. Snyder testified that he was put directly on the line with a man identifying himself as the security manager. Snyder told this man that he intended to hire plaintiff for a position of trust. (236a). This man at Korvette’s was then said to pause, check some records, and then tell Mr. Snyder that Thomas was a “thief,” that he didn’t know whether criminal charges were still pending, and that plaintiff “could not be trusted.” (236a-37a). . In view of the reversal of the district court judgment, the cross-appeal at No. 71-2062 will be dismissed as moot. . Restatement of Torts, chapter 29, introductory note at 380. . Simpson v. Montgomery Ward & Co., 354 Pa. 87, 46 A.2d 674 (1946); Miller v. Pennsylvania R.R. Co., 371 Pa. 308, 314, 89 A.2d 809, 811 (1952). . The trial judge, discussing in his opinion the disputed factual issues, stated: Plaintiff testified that the cashier corroborated his purchase of the toys, whereas the defense evidence was squarely contrary. The defendant’s evidence was that it would be a clear violation of company regulations for the plaintiff to take merchandise out through the front doors of the store, even if it had been purchased; whereas the plaintiff testified that this was common practice, and that managerial employees were exempt from any such regulation. There was a dispute as to whether the two packages were tied together when they were found in the trunk of plaintiff’s car, and even as to the color of the string with which they were tied, and the significance of this circumstance. There were further issues with respect to the extent and reasonableness of defendant’s investigation of the incident, the information supplied by the plaintiff and other employees, whether the circumstances of the production of the receipt at the Justice of the Peace hearing should have, or did, convince the defendant’s employees of plaintiff’s innocence, and many others. . The jury returned special verdicts as to probable cause and malice in response to the interrogatories as follows: 1. Was there lack of probable cause for the arrest of the plaintiff on November 12, 1965? Tes. 2. Was there lack of probable cause to press the prosecution of the plaintiff on November 18, 1967? Yes. 3. In prosecuting the plaintiff, was the defendant motivated by malice? Yes. . 354 Pa. at 91, 46 A.2d at 676. The court, in explaining the basis for the deviation from the general rule in this type of case, stated: It has been immemorially held that the public interest requires that the legally trained mind of the judge and not the more or less emotional minds of jurors, decide whether or not there was probable cause for the initiation of the prosecution. Jurors are likely to confuse the issue of guilt or innocence of the defendant in the criminal case out of which the civil action originated with the basic issue whose determination decides the civil action. That basic issue is the want of probable cause for the criminal prosecution. Id. at 92, 46 A.2d at 676. . This difficulty is illustrated by the admission, in this case, of the testimony of Ward, who allegedly witnessed Thomas’ payment for the games allegedly stolen. His testimony was only relevant to the ultimate issue of guilt or innocence. It was irrelevant to the issue of whether Korvette possessed a reasonable belief in Thomas’ guilt. In a malicious prosecution or false arrest suit, the relevant inquiry is the reasonableness of the perceptions of the accusers. Therefore, the only relevant matter pertaining to Ward was what Thomas told Smith about him prior to the arrest. Apparently, the parties here did not realize this important distinction. . The growth and magnitude of shoplifting and employee theft in this country, and its enormous burden on society, is revealed in reports of several federal agencies. A study, by the Small Business Administration, of crime against small business, embodied in a report transmitted to the United States Senate Select Committee on Small Business, April 3, 1969, estimated the cost to small business of “ordinary crimes” at $1.4 billion for the year 1967, although the crimes under consideration were defined relatively narrowly. For 1970, this loss for ordinary crimes, including shoplifting and employee theft, was estimated at approximately $4.8 billion. Forty-one percent of this sum reflected losses in shoplifting and employee theft. A study by The Rand Corporation conducted for the Department of Justice, November, 1971, discloses that the cost of private crime prevention in 1969 exceeded $3.3 billion. See Preliminary Staff Report of Bureau of Domestic Commerce, U.S. Department of Commerce, The Economic Impact of Crimes Against Business 9 (February 1972). This report of the U.S. Department of Commerce also observes: While shoplifting appears to be the most serious problem for retail establishment, most observers believe that because of the reluctance of businessmen to admit the magnitude of their employee theft problem, that figure is seriously understated. Some believe that employee theft accounts for substantially more loss than shoplifting by customers. Total inventory losses which result almost entirely from shoplifting and employee theft are estimated as high as four to five percent of sales at some stores. This is virtually equal to the normal profit margins in retailing. Id. 9-11. . Restatement of Torts § 673, comment on clause (a) at 438, states: [A] jury has no function to perform with reference to the issue of probable cause unless there is a conflict in the testimony as to the circumstances under which the defendant acted in initiating the proceedings. If these circumstances are admitted by either party or if the evidence upon them is clear and uncontradicted there is no need for a finding of the jury to give the court information upon which to determine the existence or nonexistence of probable cause. This is apparently now the law of Pennsylvania. See Hugee v. Pennsylvania R.R. Co., 376 Pa. 286, 289, 101 A.2d 740, 742 (1954); Miller v. Pennsylvania R.R. Co., 371 Pa. 308, 89 A.2d 809 (1952). . During the course of the trial, the trial judge indicated to counsel that he contemplated instructing the jury, or at least commenting strongly, that there was probable cause for the original arrest. In a colloquy with counsel a few minutes later, he stated: [I]t seems to me rather clearly that there is probable cause for the original transaction. The only issue would be whether with the information at hand at the time of the justice of the peace hearing whether probable cause still existed at that point. In short, as of the time, they didn’t have any evidence of any purchase at all; I don’t see how you can’t say there wasn’t probable cause, but that is a matter for the jury. I am going to let them pass on it. . Thomas contended that the rule was not applicable to him, the store manager, assistant store manager, or the floor manager. This asserted inapplicability, however, is irrelevant to the question of probable cause, since there was no evidence that either Smith or Brown, at the time of the arrest and prosecution, considered the regulations inapplicable. . The police report of this investigation, however, offered in evidence at trial by Thomas, discloses that he did give a statement, which varied substantially from his testimony at trial and differed from the statement of his counsel at the hearing before Justice of the Peace Thomas. The record reveals that defendant’s representatives had such statement ed plaintiff to the police available to them prior to the start of that hearing. They knew Thomas had been interrogated by the police. The police report reflects the presence at the police station of Korvette’s representatives when the police investigating officer, Detective Sergeant Nasielski, arrived for the interrogation of Thomas. The latter’s testimony discloses their continued presence after the interrogation. . 18 Pa.Stat. § 4816.1. When an amendment was enacted in 1959 to prohibit a magistrate from reducing the offense from larceny to shoplifting as defined in the statute, the legislative 'history in the state House of Representatives reveals that the primary purpose of the statute “was to eliminate the enormous bulk of malicious prosecution [actions]. .” 1959 Pa. Legislative Journal, at 1798 (June 16, 1959) (statement by Mr. Ellberg, one of the sponsors of the bill in the House). . Brown estimated the time as 4:15 P.M. at the hearing, on the basis of the number of the sale and time the register tape was confiscated. (Although the transcript of such hearing was not included in the evidence submitted to the jury, the court ruled that it would be put into the record for consideration by it in making its rulings on the questions that were not to be submitted to the jury.) In his report to the police officer, Thomas stated that he had made the purchase of the two games at about 11:30 A.M. At trial, however, he testified that he paid for the two games at about 2:30 P.M. At trial of the instant case, Thomas testified that he searched the trunk of his car the day following the arrest, that he removed the spare tire and found the receipt, produced at the magistrate’s hearing, “down inside the spare-tire wheel . . . with the stick tape attached.” He neither notified Korvette of his find nor produced the alleged receipt for them, which might have led Korvette to drop the charges. He not only acknowledged that the receipt produced at the hearing “was in the wrong amount,” but that he personally made no search of the trunk when he first opened it for Smith. The receipt admittedly bore discrepancies in the dollar amount of the purchase and in the number of items. . Judgment n. o. v. might be justified on this ground alone on the basis of the rule that in actions for libel or slander, “the false and defamatory matter should be pleaded in haeo vería.” Foltz v. Moore McCormack Lines, 189 F.2d 537, 539 (2d Cir.), cert. denied, 342 U.S. 871, 72 S.Ct. 106, 96 L.Ed. 655 (1951). The purpose of the rule, as stated in Foltz, is “to enable the court to decide the issues of whether the words as used apply to the plaintiff and tend to degrade him in the eyes of the community. . . .” Before words are deemed to be defamatory per se, the proof of what was uttered should also be unequivocal. Proof of the spoken word involves not only an accurate recollection of what was said but accuracy in the auditor’s perception (the physical sensation) of the word sounds. In addition, some words are frequently susceptible to variable meanings, depending upon the inflection, tone, and circumstance in which they were used. The danger of a misunderstanding is too great to permit equivocal proof in a ease such as this. For example, consider the possibility that Smith spoke just one word differently than the statement attributed him in substance by the witness. No defamatory connotation would be possible if Smith in fact said, “Mr. Thomas purchased over a thousand dollars worth of toys.”

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

GOVERNMENT OF the VIRGIN ISLANDS v. Emerito TORRES, Appellant. No. 72-1835. United States Court of Appeals, Third Circuit. Argued Feb. 2, 1973. Decided April 4, 1973. As Amended May 7, 1973. Edward J. Ocean, Christiansted, St. Croix, V. I., for appellant. Julio A. Brady, Asst. U. S. Atty., Christiansted, St. Croix, V. I., for appellee. Before VAN DUSEN, ROSENN, and HUNTER, Circuit Judges. OPINION OF THE COURT ROSENN, Circuit Judge. Emérito Torres appeals to this court from his judgment of conviction on March 16, 1972, for premeditated murder. He was tried to a jury in the District of the Virgin Islands and was sentenced to life imprisonment. His appeal raises a number of alleged trial errors, the most important of which is the failure of the trial judge to decide as a matter of law that the Government’s key witness was an accomplice to the crime. We find no error and affirm. The body of Nelson DeFoe, the victim, bearing stab wounds in the head, neck, and chest, and multiple fractures of the scalp and face, was found on December 6, 1970, in a ravine close to his house. The Government’s case depended primarily on the testimony of Basilio Felix. Felix testified that on the day of the murder, Saturday, December 5, 1970, he and a friend, Enrique Valasquez, met Torres and Marcial Santana. Torres offered them a ride into town in his black Volkswagen, and, on the way, at Torres’ behest, the group decided to find a house to burglarize. They drove to DeFoe’s, where Felix walked into the garage and took a radio. After carrying it to Torres’ ear, he and Torres went to the house. They approached an open glass door and saw DeFoe reclining inside. DeFoe asked what they wanted, and Torres replied that they were looking for some man. DeFoe then accompanied them to their car, where he saw his radio and demanded its return. According to Felix, Torres said that he was going to kill DeFoe because the latter had seen their faces and the license number of the car. Felix testified that both he and Valasquez objected and refused to have any part in the murder. They retreated down the road about twenty feet from which point they observed Torres stab DeFoe several times in the neck and chest with an ice pick that had been in the car. DeFoe fell to the ground, and Santana took the jack out of Torres’ car and hit the victim in the face and head. Felix further testified that Torres and Santana pushed the body into the ravine at the side of the road. Although Felix suggested that they leave, Torres refused; and all four reentered the home and removed some jewelry, a television set, a gun, and a safe. They placed the goods in DeFoe’s car, and then drove both cars to a densely grown area where Torres opened the safe. They abandoned DeFoe’s car and departed together in Torres’ black Volkswagen. In driving the Volkswagen from the DeFoe residence, Valasquez had hit a tree and dislodged a fender. Because the wheel was bent in this accident, the car eventually failed them at a point near Centerline Road. There they encountered Juan Santos who at their request pushed them up to Estate Profit. Felix testified that the group arrived at DeFoe’s residence between 12:00 P.M. and 1:00 P.M. and that, although he did not remember the exact time, they parted company when it was getting dark, approximately at some time between 4:00 P.M. and 6:00 P.M. He also testified that they absconded with two watches from DeFoe’s home. One of them was a round hook-on watch with a “painted gold” band which he described as follows: Well, the band, has, you know, from where the part of the watch joined, it had like two lines of iron made out of gold and then both sides, that is what you hook onto your wrist. Another Government witness, Jose Felix, testified that he saw Torres with Santana in the black Volkswagen on the morning of December 5, 1970. He also saw Torres later that day driving with Santana in the Volkswagen, minus a fender. On December 10, 1970, Torres had shown him two watches that he said were stolen. One of the watches was gold with two wires, the type that slips over the wrist and has no clasp. Gilberta Cruz Rivera, who was present at the time of the meeting between Torres and Jose Felix, also saw the watches; he corroborated the latter’s account of the event and the description of the watches. Doreen Jerz, Mrs. DeFoe’s employer and a Government witness, testified that she knew the DeFoes personally, that DeFoe’s body was found the day after the murder at the side of the road in front of the house, and that Mr. DeFoe owned a thin, round watch with an unusual gold band. The band was a bracelet type that did not come together in the back. Two thin strips of gold, with a piece of scroll work between them, comprised the band. Torres took the stand and testified that he was not acquainted with any of the Government witnesses and that on the day of the murder he was at home in Estate Profit. He said he worked from early in the morning until approximately 4:00 P.M., when he accompanied his father, Elias Torres, his mother-in-law, Juanito Acosto, a friend, Saulo Saldana, and Santana to the hospital, where Santana was treated for an overdose of drugs. Each of these persons corroborated Torres’ story as to the hospital trip and placed the time of arrival at the hospital at some time between 4:00 P.M. and 5:00 P.M. and the time of departure at 9:00 P.M. to 10:00 P.M. They testified that Santana was unconscious when he arrived and that the attending physician immediately began to treat him. They said he was kept in the emergency room four to five hours and then admitted to the hospital. Elias Torres, Juanito Acosto, and two other witnesses, Nathaniel Carmona, who allegedly worked with Emérito Torres on the car, and Jose Olivo, a neighbor, verified the appellant’s testimony about having been home all day. Appellant then called Judith Margras, the medical librarian from the hospital where Santana was treated. She testified that Santana was treated for a drug overdose on December 5. On cross-examination she said the time of treatment noted by the attending physician was 10:00 P.M. and the time he was actually admitted to the hospital was 10:30 P.M. She testified that the records did not, however, show the actual time when the patient was brought into the emergency room. Appellant’s lawyer endeavored to examine her further to prove that Santana was treated prior to 10:00 P.M. Specifically, he asked her to count the number of patients the emergency room doctor treated on his shift after seeing Santana and prior to going off duty. The court refused to allow this. Although he did not explain specifically his purpose to the trial court, defense counsel now argues that he wanted to prove that doctors work eight-hour shifts and that the attending doctor began his shift at 4:00 P.M. and treated thirty-eight patients after Santana. He would then have argued that the doctor could not have treated Santana as late as 10:00 P.M. because he could not have seen thirty-eight patients in the period of an hour and one-half. In rebuttal of Torres’ testimony that he did not know Basilio Felix, the Government called 'Juan Santos, who testified that on a Saturday in December at about 2:30 P.M. he had seen Felix and Torres on the Centerline Road in a % Volkswagen. At the request of Felix and Torres he pushed the automobile up Centerline Road to Estate Profit. He said there were two other persons in the car but he could not identify them. He could not recall the precise date but testified that this was the only time he had ever done this. The information charging Torres with the alleged crimes initially contained two counts. The first count charged appellant with premeditated murder in violation of 14 V.I.C. § 922(a)(1) and felony murder in violation of 14 V.I.C. § 922(a) (2); the second charged burglary in violation of 14 V.I.C. § 443. At the conclusion of the evidence, the court granted the Government’s motion to amend the information by dismissing count II and by deleting reference in count I to section 922(a)(2). The Government asked for this amendment on the ground that it had failed to prove an essential element of count II, namely, that defendant entered the DeFoe residence. Defendant did not object to the amendment. In accordance with the Virgin Islands statute providing that no conviction may be based, upon the testimony of an “accomplice” unless corroborated by such other evidence as tends to connect the defendant to the crime, the court submitted to the jury the question whether Basilio Felix was an “accomplice.” On appeal, Torres claims the district court erred: (1) in submitting to the jury the question whether Basilio Felix was an accomplice; (2) in permitting the Government to amend the information at the conclusion of the evidence; (3) in limiting his examination of Judith Margras; and (4) in permitting the Government witnesses’ testimony about the allegedly stolen watches. The first and most substantial issue involves the treatment of Felix’ possible status as an accomplice. 14 V. I. C. § 17 provides: No conviction can be had upon the testimony of an accomplice unless it be corroborated by such other evidence as tends to connect the defendant with the commission of the crime. The corroboration is not sufficient if it merely shows the commission of the crime or the circumstances of the commission. An accomplice is generally a person who could have been charged with the same offense as the person he testifies against, either as principal or accessory. United States v. Nolte, 440 F.2d 1124, 1126 (5th Cir. 1971); Phelps v. United States, 252 F.2d 49, 50 n. 3 (5th Cir. 1958). Although the Virgin Islands statute limits the use of testimony of an accomplice, it is silent as to whether the court or the jury has responsibility for determining if a given witness is an accomplice. Case law in other jurisdictions, however, indicates that when the facts are undisputed, the question is one of law for the court, and that when the facts are in dispute, the question is for the jury. See Annot., 19 A.L.R.2d 1352. Moreover, the denial by a defendant of the commission of the crime is not deemed ipso facto to create a factual dispute. In this case, it might be argued that the only reasonable inference from the undisputed evidence was that Felix was an “accomplice” within the meaning of the statute. Torres was charged with premeditated murder, felony murder, and burglary. Basilio Felix could arguably have been charged with felony murder, defined in 14 V.I.C. § 922(a)(2) as including murder committed in the perpetration of burglary. The Government’s dismissal of the burglary charge against Torres due to an evidentiary failure at his trial would not preclude a similar charge or a murder charge against Basilio Felix. Moreover, the purpose of the accomplice statute would seem to suggest its application to the facts of this case. As pointed out in Government of Virgin Islands v. Solis, 359 F.2d 518 (3d Cir. 1966), the statute was designed to provide a degree of protection against the well-known danger that a participant in the indicted crime may seek to save himself by falsely incriminating a cohort. History is replete with accounts of such human frailties. See Phelps v. United States, 252 F.2d at 52. Because of Felix’ admitted participation, at least in the burglary, that danger exists here. We need not, however, decide whether the accomplice issue was properly submitted to the jury or was a legal question for the court, since it becomes material only if there was no corroborative evidence tending to connect defendant with the crime. Although insubstantial and inconclusive of guilt, the testimony of Jose Felix and Gilberta Cruz Rivera, combined with the testimony of Mrs. Jerz, was ample corroboration of the alleged accomplice and fulfills the statutory requirement, since it “tends to connect” Torres with the DeFoe crimes and corroborates Basilio Felix’ testimony. The testimony of Juan Santos is also significantly corroborative within the meaning of the statute. This testimony was sufficient to allay the fear that Basilio Felix was fabricating Torres’ alleged connection with the murder. The district court did not abuse its discretion in permitting the amendment of the information at the close of the evidence. F.R.Cr.P. 7(e) authorizes an amendment at any time before verdict “if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” In this case, appellant had been charged with both premeditated murder and felony murder, and sections of the Virgin Islands Code enumerating each of these types of first degree murder were cited in the information. The amendment did not charge him with a different offense; rather, two of the three offenses with which he had been charged were dropped. Appellant was not prejudiced by the ruling. The trial court did not err in limiting appellant’s examination of Margras, the medical librarian. The proof would have been very speculative for several reasons. In the absence of proof of the number of persons normally treated between the hours in question, information as to how many patients the attending physician treated that night after Santana and prior to midnight would not fix the time at which Santana was treated. Appellant did not offer to prove the time at which the doctor in question arrived and departed on the day in question. In addition, proof that Santana was treated prior to 10:00 P.M. would be of negligible value, since the precise time could not be established. Moreover, proof that Santana’s treatment was prior to 5:00 P.M. would not be inconsistent with appellant’s participation in the crime as described by Basilio Felix) Balancing the probative value of the proposed evidence against the danger of confusing the jury and distracting them from the main issue is a matter for the discretion of the trial court. See, e. g., United States v. Bowe, 360 F.2d 1, 15 (2d Cir.), cert. denied, 385 U.S. 961, 87 S.Ct. 401, 17 L.Ed.2d 306 (1966); Rule 403, Proposed Rules of Evidence for United States Courts and Magistrates. Nor did the court abuse its discretion in admitting the testimony pertaining to the watches. The testimony was relevant, any possible variation or imprecision in the descriptions being a matter for the jury. The descriptions were sufficiently similar to permit the jury to find that the watches described by the three other witnesses were one and the same as the watch described by Basilio Felix. The judgment of the district court will be affirmed. . The information read, in relevant part: COUNT I The United States Attorney charges: On or about the 5th day of December, 1970, in the Virgin Islands of the United States, Judicial Division of St. Croix, Emérito Torres and Marcial Santana while acting together and in concert did, wilfully and unlawfully with malice aforethought and premeditation kill one Nelson DeFoe by stabbing him with an icepick and inflicting wounds about the head of Nelson DeFoe in furtherance of another crime, to wit: burglary in the second degree, in violation of Title 14 V.I.C., § 922(a)(1) (2). COUNT II On or about the 5th day of December, 1970, in the Virgin Islands of the United States, Judicial Division of St. Croix, Emérito Torres and Marcial Santana, did, knowingly and unlawfully break and enter the dwelling of one Nelson DeFoe while said Nelson DeFoe was present therein with the intent to commit a crime, to wit: larceny, in violation of Title 14 V.I. C., § 443.- DATED: November 26,1971. . We also note that appellant did not request a specific ruling from the trial judge on this issue. It is well established that the court of appeals will not pass upon issues not raised in the court below unless the error be so fundamental in nature as to deprive the defendant of fundamental justice. See, e. g., United States v. Moore, 453 F.2d 601 (3d Cir. 1971).

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MESA OIL COMPANY, an Arizona corporation, Appellant, v. BUSINESS MEN’S ASSURANCE COMPANY OF AMERICA, a Missouri corporation, Appellee. No. 71-1204. United States Court of Appeals, Ninth Circuit. March 6, 1973. Rehearing Denied May 9, 1973. Donald D. Meyers (argued), Phoenix, Ariz., for appellant. Douglas L. Irish (argued), Lewis & Roca, Phoenix, Ariz., for appellee. Before ELY, CARTER and TRASK, Circuit Judges. ELY, Circuit Judge: Appellant, Mesa Oil Company (Mesa) was the named beneficiary of a life insurance policy issued by appellee, Business Men’s Assurance Company of America (BMA), on the life of Cletus Chamberlain. The accidental death provision of that policy contained the following exclusion : “RISKS NOT COVERED No benefit will be paid if death results directly or indirectly from taking any . . . drug, voluntarily or involuntarily; . ” Chamberlain, the insured, died as a result of the combined effect of barbiturates and alcohol. BMA refused to pay the accidental death benefits, and Mesa brought this suit. The District Court, assuming its diversity jurisdiction, awarded BMA summary judgment. The question presented is whether the meaning of the word “drug,” as used in the insurance policy, so clearly includes barbituric acid that there is no room for doubt on that point among reasonable men. The policy fails to provide a definition or explanation of the term “drug.” Arizona law, which is, of course, here controlling, requires undefined insurance policy terms to be defined in the common everyday language of the average layman rather than in either technical medical terms or as statutes would define them. Malanga v. Royal Indemnity Co., 101 Ariz. 588, 422 P.2d 704 (1967); Dickerson v. Hartford Accident & Indemnity Co., 56 Ariz. 70, 105 P.2d 517 (1940). Further, undefined terms in an insurance policy are to be construed strictly in favor of the insured. United American Life Insurance Co. v. Beadel, 13 Ariz.App. 196, 475 P.2d 288 (1970); Malanga v. Royal Indemnity Co., supra, and Brenner v. Aetna Ins. Co., 8 Ariz.App. 272, 445 P.2d 474 (1968). Finally, if the undefined term appears in an exclusionary clause, an even stricter standard of construction must be applied. Brenner, supra. Mesa, after noting that there is no definition of the term “drug” in the contract, offers three dictionary definitions of the term in attempting to demonstrate that even these common sources are in disagreement over the term’s definition. Mesa then contends that the absence of a policy definition, combined with the differences in dictionary definitions, required the court to deny the motion for summary judgment. We disagree. In Malanga v. Royal Indemnity Co., supra, the insured decedent died from the combined effect of alcohol and barbiturates. The insurance company refused to pay the accidental death benefit to the decedent’s wife, relying upon the following terms of the insurance policy: ‘This insurance is against loss . . . resulting directly and independently of all other causes from accidental bodily injuries sustained during the term of the policy . . . ’ (emphasis added).” 422 P.2d at 706 (emphasis in original). As in the present ease, the key term (“bodily injury”) was not defined in the policy. The insurance company there claimed that bodily injury was limited to those cases wherein some cut, bruise, or rupture appeared on part of the body. The court declined to accept this limitation and ruled that the decedent’s death was so clearly included within the meaning of the term “bodily injury” that “ . . .we think it is impossible to conclude otherwise.” 422 P.2d at 707. In United American Life Insurance Co. v. Beadel, supra, the insured also died from the synergistic effect of alcohol and barbiturates. The insurer there involved also refused to pay accidental death benefits, claiming, inter alia, that an exclusionary clause in the policy denied recovery “if death results directly or indirectly . . . from any poison . . . accidentally or otherwise taken. . . ” 475 P.2d at 290. The term “poison” was not defined in the policy. The Arizona court, in determining whether the poison exclusion limited recovery, noted that the term poison, “[c]ommonly speaking, . . . conjures up such names as arsenic or cyanide.” 475 P.2d at 291. The synergistic effect of alcohol and barbiturates, however, was held to be so far from the mainstream connotations of the term “poison” as to defeat the insurance company’s claim. Thus, the court held that “this accident is covered by the policy terms and is not excluded as poison.” 475 P.2d at 292. In the case at bar it is suggested that the undefined term “drug” is so ambiguous as to leave reasonable doubt whether barbiturates fall within its parameters. The trial court, however, was of the opinion that “anyone who has lived long enough to be exposed to the ‘boob tube’ for any length of time has a pretty good idea of what a drug is. * * * I believe that barbiturates are a ‘drug’ within the meaning of the policy.” Further, appellant’s own brief notes that “In the present case, the word ‘drug’ normally suggests to the average layman such substances as heroin, morphine, cocaine, etc.” We are convinced, and believe that the Arizona courts would so hold, that barbiturates also constitute a paradigm substance that the common layman would classify as a drug. The use of barbituric acid in the form of a depressant, often referred to as a “downer,” has become, unfortunately, extremely commonplace in our society. “Drug use is nearly universal in this country. Millions of Americans use drugs every day for the tranquilizing, stimulating and hallucinogenic effects upon their brains. The great bulk of this drug use is legal and unrelated to crime. For example, 27,478,000 prescriptions were written for stimulants and 80,267,000 for barbiturates in 1968. The National Institute of Mental Health estimates that eight billion amphetamine, barbiturate and methamphetamine pills were legitimately manufactured in the United States in calendar 1969 — enough for 40 doses for every man, woman and child in this country.” Thus, while it may have been questionable whether barbiturates constitute a “poison,” or whether the effect produced by their use in combination with alcohol constitutes “bodily injury,” we think it is beyond dispute that any ordinary layman would consider barbiturates to be “drugs” within the meaning of the term. In reaching this decision we are not unmindful of the requirement to construe undefined policy terms strictly in favor of the insured, nor of our duty to apply an even stricter standard of construction where, as here, the undefined term appears in an exclusionary clause. We are nonetheless of the opinion that the District Court’s dispositive conclusion below was correct. This opinion is reinforced by the proposition, which has been frequently emphasized, that “We are required to attach great weight to the district judge’s determination as to the law of the particular state in which he sits.” Insurance Co. of North America v. Thompson, 381 F.2d 677, 681 (9th Cir. 1967). See also Turnbull v. Josephine Bonkowski et al., 419 F.2d 104 (9th Cir. 1969); Owens v. White, 380 F.2d 310 (9th Cir. 1967). Affirmed. TRASK, Circuit Judge (dissenting): Were I deciding this case as an original question I would write much as the author of the majority has done. However, as a diversity case to be decided according to the law of Arizona, I am unable to distinguish it from Malanga v. Royal Indemnity Co., 101 Ariz. 588, 422 P.2d 704 (1967), and United American Life Insurance Co. v. Beadel, 13 Ariz. App. 196, 475 P.2d 288 (1970). Those decisions appear to me to require reversal. . Mesa’s brief sets out the following examples of dictionary definitions of the term “drug”: “Black’s Law Dictionary, Fourth Edition (1951), defines ‘drug’ as being: ‘The general name of substances used in medicine; any substance, vegetable, animal, or mineral, used in the composition or preparation of medicines; any substances used as a medicine. . . . ’ Webster’s Third International Dictionary defines ‘drug’ not only as a substance used as a medicine or in the making of medicines, but also as ‘something narcotic in its effect.’ The Random House Dictionary of the English Language (Random House, Inc., 1967) defines ‘drug’ not only as a medicinal substance or a narcotic but also as ‘a chemical substance administered to . prevent or cure disease or otherwise enhance physical or mental welfare’ and ‘any personal hygienic items sold in a drug store. . ABA Special Comm, on Crime Prevention and Control, New Perspectives on Urban Crime 25 (1972).

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UNITED STATES of America, Appellee, v. Richard Lee BOULEY, Appellant. No. 72-1617. United States Court of Appeals, Fourth Circuit. Argued Jan. 8, 1973. Decided April 2, 1973. George S. Daly, Jr., Charlotte, N. C., for appellant. Hugh J. Beard, Jr., Asst. U. S. Atty. (Keith S. Snyder, U. S. Atty., on brief), for appellee. Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and WIDENER, Circuit Judge. ALBERT V. BRYAN, Senior Circuit Judge: For failure to submit to induction under the Military Selective Service Act, Richard Lee Bouley, on April 11, 1972 in the Federal District Court at Charlotte, North Carolina, was convicted of a violation of 50 App.U.S.C. § 462. From this judgment he now appeals, asking acquittal or, at least, a new trial. His contention is that the induction order was invalid because his local selective service board denied him due process of law in failing to reopen his 1-A classification, and give him deferment as a member of the United States Marine Corps Reserve. We affirm. A chronology of the events of the case is necessary: 1. Bouley registered in 1964, and was classified 1-A. 2. In 1966 he enlisted in the Marine Corps Reserve at Charlotte, after being ordered to report for induction. 3. Thereupon a DD Form 44 noting his enlistment was sent by the Reserve to the local board. 4. On February 16, 1966 the board classified Bouley as 1-D, which meant a deferment of his induction. 32 CFR § 1622.13(f). 5. In February 1968 Bouley’s business carried him to Miami, Florida. 6. On February 15, 1968 the Charlotte Reserve unit sent to his local board a DD Form 44 showing an inter-unit transfer. 7. Shortly thereafter he decided to return to Charlotte, but no new DD form was sent to the local board establishing his departure from the Miami unit and his retransfer to the Charlotte unit. 8. A DD form is good for only one year. Local Board MEMORANDUM No. 1 issued September 3, 1948, as amended November 15, 1967. 9. On April 23,1969 not having heard from the Charlotte unit or from Bouley since February 15, 1968, his local board at Charlotte classified him as 1-A, thereby subjecting him to immediate call for service. 10. On the same day the local board sent Bouley notice of this classification and of his right to make a written request for a personal appearance before the board. 11. Thereupon Bouley telephoned the board’s secretary and asked to meet with the board. He was advised: “There is a Board but you cannot come and face [them], you cannot come up and talk to them, you have to write a letter,” and saying further that if the board wished to see him they would let him know. 12. On May 21, 1969 Bouley wrote the board as follows: “Dear Sirs, “I would like to explain my position as far as the Marine Corps Reserve was concerned before I was reclassified 1-A. “I was attending drills regularly up to January of 1968 when business required me to Miami Fla. I then got in touch with my reserve unit and had ' them transfer me to Miami. “After arriving in Miami I found that I wasn’t going to be able to stay as the business was not going to work out. I then called the Miami unit and explained my problem. They said they would send my papers back to Charlotte when they arrived. “I went to make the next drill at the Charlotte unit and they told me that my papers were not back and I was not considered in the unit until they were. I then asked the Sergeant to check with Miami and let me know when he found out something. “I never heard anything from them, so I went back to the unit. They told me that they had received part of my papers but some had not been received. “I left them an address that I could be reached at and told them to let me know when they heard something. That’s the last I heard from them until I received the letters from the draft board. “I would like an opportunity to go back and talk to the reserve unit to see if I can be accepted back into the unit before you folks take any further action. “Thank you, “/s/ Richard L. Bouley” 13. On May 27, 1969 Bouley was ordered to report for induction on June 13, 1969. 14. On May 28, 1969 the Board informed him by letter that it “must have official notice from your unit that the transfer has been completed”, and asked that he attend to the matter at once. 15. On June 13, 1969 Bouley failed to report for induction. 16. On May 5, 1971 Bouley appeared at the local board and was then forwarded for induction, which he refused. 17. As of May 5, 1971 no official information with reference to Bouley’s Reserve status had been received by the board, the last DD form having been received on February 15, 1968. 18. Bouley was indicted on September 22, 1971. 19. On March 27, 1972 he moved the court for discovery of any notes or memoranda of the Regional Counsel of the Selective Service System on which the Counsel based his conclusion that Bouley’s cover sheet had been reviewed and found “procedurally correct”. Bouley then also sought discovery of “[a] 11 documents regarding defendant’s participation in the U.S. Marine Corps Reserve at any time from January 1, 1966 through February 26, 1971”. 20. On April 6, 1972 the motion for the Marine Corps records was granted, but in answer the Government filed an affidavit to the effect that, after diligent search, it was ascertained that all such records had been destroyed “in the due course of business”. However, some of them were later found and produced. Discovery of the notes and memoranda was refused on the ground that any obligation of disclosure was excepted by 5 U.S.C.A. § 552(b)(7) as an investigatory file “compiled for law enforcement purposes”. Refusal was also placed on Rule 16(b) F.R.Crim.P., which in this regard is substantially similar to the statute. Bouley’s contention now is that his local board should have reopened his 1-A classification following the receipt of his letter of May 21, 1969, supra. The position of the Government is that under the selective service regulations, in order for Bouley to maintain his deferred status it was absolutely necessary for him to have the Marine unit at Charlotte file with the Board Form DD-44, showing his reacceptanee into the unit. Without it the Board had no authority whatsoever to reclassify him as deferred by reason of enlistment in the Reserve. Responding, Bouley insists that the failure to file a DD Form 44 upon his return to Charlotte was due to the Marine Corps’ neglect to do so, inasmuch as he claims to have presented himself to the Charlotte unit immediately upon his return from Miami in February 1968, and twice thereafter. We cannot say that the Board was in error in not reopening his classification. As was declared in United States v. McDuffie, 443 F.2d 1163, 1166 (5 Cir. 1971): “ . . . The registrant bears the burden of clearly establishing his right to the exemption, and ‘the board has no affirmative duty to ascertain whether or not the registrant qualifies for the exemption.’ McCoy v. United States, 403 F.2d 896, 899-900 (5th Cir. 1968). See also Robertson v. United States, 417 F.2d 440, 445 (5th Cir. 1969); Camp v. United States, 413 F.2d 419, 422 (5th Cir. 1969); Clay v. United States, 397 F.2d 901, 916 (5th Cir. 1968). ...” In Mulloy v. United States, 398 U.S. 410, 416, 90 S.Ct. 1766, 1771, 26 L.Ed.2d 362 (1970) the Court said that the board should reopen a registrant’s classification upon “nonfrivolous allegations of fact . . . not . . . previously considered . . . unless”, the Court added, “the truth of these new allegations is conclusively refuted by other reliable information in the registrant’s file.” The statements made in Bouley’s letter of May 21, 1969 were not new. The Board was informed of all of its material assertions when DD Form 44 was received on February 15, 1968. This form is the only means through which the board is informed of the registrant’s fulfillment of his obligation to serve in the Reserve. It is “needed to determine claims for . . . exemptions and deferments” allowed by the Act. 32 CFR 713.2104(a). Under Local Board Memorandum No. 1, the form had to be furnished the local board “initially, annually, and immediately upon a change in his reserve membership status”. Deferment was effective only “as long as he satisfactorily participates” in the Reserve. 32 CFR 713.2104(a). Such reports were required to be submitted not later than October 15 of each year. In this instance, that date would have been October 15, 1968. For some fifteen months Bouley did not even attempt to inform the board of any difficulty he was having in obtaining the DD form on his return to the Charlotte unit in February, 1968. Certainly this court would not be warranted in reversing his conviction, or directing the suspension of the judgment on review until Bouley could account to the selective service board for his default. Even then, the resolution of whether he was entitled to an extended deferment would be for the board and not the court. The discovery pressed by Bouley was correctly decided by the District Court. At all events, the documents sought would not affect the finding of the District Court upon Bouley’s guilt. Affirmed.

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CUMMINS SALES & SERVICE, INC., Plaintiff-Appellee-Cross Appellant, v. LONDON AND OVERSEAS INSURANCE COMPANY and Provincial Insurance Company Defendants-Appellees-Cross Appellants, v. DEUTSCHE DAMPFSCHIFF. GES. “HANSA”, Defendant-Appellant-Cross Appellee. No. 28600. United States Court of Appeals, Fifth Circuit. March 21, 1973. Rehearing and Rehearing En Banc Denied May 17, 1973. Robert M. Julian, Houston, Tex., for defendant-appellant-cross appellee. Jon W. Montague, Houston, Tex., for defendants-appellees-cross appellants. Philip C. Wrangle, Houston, Tex., for plaintiff-appellee-cross appellant. Before GEWIN, THORNBERRY and CLARK, Circuit Judges. THORNBERRY, Circuit Judge: Cummins Sales and Service, Inc., brought this suit in admiralty to recover for damage to cargo that was insured by defendants London and Overseas Insurance Company and Provincial Insurance Company (“Underwriters”) and that was shipped from Tripoli, Libya, to Houston, Texas, aboard the M/S GOLDENFELS, a vessel owned by defendant Deutsche Dampfsehiff. Ges. “Hansa” (“Hansa”). On an earlier appeal from a judgment for Cummins against Underwriters and for Underwriters over against Hansa, this court remanded for entry of findings and conclusions, 5 Cir., 426 F.2d 312. We now affirm the judgment as to liability but remand for a re-determination of damages. The cargo in question was the component parts of a prefabricated metal building. In January 1967, Mid-East Supply Company, a Libyan corporation forty-nine percent of whose stock was controlled by a Cummins affiliate, contracted to purchase the building from a British concern, Taylor Woodrow, Ltd. Terms of the sale were twenty-five percent cash against documentary sight drafts, with the balance to be paid in four equal six-month installments. Taylor Woodrow shipped the building, in the form of 276 packages, to Mid-East in Tripoli aboard the SS WALTER, which arrived in Tripoli on March 3, 1967, and discharged the cargo in good order and condition. Those components which were in boxes and crates were stowed in an uncovered barge in Tripoli harbor, while the structural steel components were stowed on the dock in the open. On March 30, 1967, while the cargo remained at Tripoli harbor, Cummins, for reasons not material to the instant appeal, assumed Mid-East’s obligation to purchase the building, in return for Taylor Woodrow’s arranging to re-ship the building to Cummins in Houston. Acting on instructions from Taylor Woodrow, T. Gargour & Fils, Ltd., the Tripoli firm which had handled the shipment on the outward voyage from London, made arrangements for re-shipment aboard the GOLDENFELS. After the cargo had been loaded aboard the GOLDENFELS on May 6-7, 1967, T. Gargour & Fils issued a Hansa bill of lading covering the cargo. Although the master of the GOLDENFELS did not sign the bill of lading, it was issued on a Hansa form with the master’s knowledge. With two minor exceptions not relevant here (“one drum short shipped”; “one crate broken, contents loose”), the bill of lading was “clean”: there was nothing in the bill of lading to suggest that the cargo was not taken aboard the GOLDENFELS in good order and condition. After intermediate stops, the GOLDENFELS reached Houston and discharged her cargo on June 26, 1967, In the meantime, on April 24, 1967, Cummins had paid Taylor Woodrow the twenty-five percent down payment which was then overdue from Mid-East. And on May 24, 1967, while the cargo was still enroute from Tripoli, Cummins accepted sight drafts with the clean bill of lading attached, and agreed to pay them at six-month intervals over two years. When the cargo was discharged at Houston, it was damaged. Although Cummins claimed a constructive total loss under Underwriters’ policy of insurance, the marine surveyors employed by Cummins denied that the cargo was a constructive total loss, and estimated the damage at between $10,690 and $12,500. A construction company executive, Mr. L. J. Howard, testified by deposition that the damage amounted to “seventy-five percent of the cost of the building”; but later in the deposition, Howard stated that the seventy-five percent figure did not represent a monetary estimate of the cost of repairs or replacement, but was only an estimate of the number of components that had suffered any damage, ranging from minor damage to complete destruction. In addition, a marine .surveyor employed by Hansa estimated the maximum damage at $20,000. Cummins did not attempt to repair or replace the damaged components, and was able to salvage them for only $11,000, in mid-1969. After awarding judgment for Cummins, the trial court computed damages by multiplying the revised sale price of the building ($50,307.60) by seventy-five percent (the figure supplied by Mr. Howard), and by subtracting from the resulting figure the $11,000 in proceeds from the salvage sale. Judgment was entered for $26,730.70, together with $500 incidental expenses, plus interest and costs. On appeal, Hansa challenges the determination of the liability question favorably to Cummins, and is joined by Underwriters in contending that the damages awarded were excessive. Cummins, on the other hand, contends that the damages awarded were too low. In order to make a burden-shifting prima facie case under the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. §§ 1300-1315, Cummins had to show receipt of the cargo by the carrier in good condition and arrival of the cargo at Houston in damaged condition. Demsey & Associates v. S. S. SEA STAR, 9th Cir. 1972, 461 F.2d 1009; Daido Line v. Thomas P. Gonzalez Corp., 9th Cir. 1962, 299 F.2d 669; Mamiye Bros. v. Barber Steamship Lines, Inc., S.D.N.Y.1965, 241 F.Supp. 99, aff’d, 2d Cir., 360 F.2d 774, cert. denied, 385 U.S. 835, 87 S.Ct. 80, 17 L.Ed.2d 70 (1966). The damaged condition of the cargo upon its outturn at Houston is not questioned; and the clean bill of lading covering the cargo shipped on the GOLDENFELS is sufficient proof, for purposes of Cummins’ prima facie case, of receipt of the cargo by the carrier in good- condition. Demsey, supra; Daido Line, supra. Although Hansa argues that Gargour & Fils, who actually issued the bill of lading on a Hansa form and who signed it, had no authority to do so from the master of the GOLDENFELS, the master’s testimony contains no suggestion that Gargour & Fils had no authority to issue the bill of lading. Hansa attempted to rebut this prima facie showing by offering evidence that the cargo had suffered extensive damage through improper stowage and exposure to the elements at Tripoli before being loaded aboard the GOLDENFELS, but the trial judge refused to consider any evidence of pre-shipment damage. In defense of this ruling, Cummins and Underwriters invoke the principle that a carrier is estopped from impeaching a clean bill of lading in a suit by one who has given value in reliance on the bill of lading. See, e. g., Pacific Micronesian Lines, Inc. v. New Zealand Insurance Company, 9th Cir. 1966, 366 F.2d 333; The CARSO, 2d Cir. 1931, 53 F.2d 374. Cummins claims that it gave value in reliance on the bill of lading when, on May 24, 1967, while the cargo was still enroute to Houston, it accepted sight drafts with the clean bill of lading attached. In support of its claim that this principle of estoppel does not apply to the instant case, Hansa advances three arguments. First, it contends that Gargour & Fils was acting as Cummins’ agent in arranging for re-shipment aboard the GOLDENFELS and that Gargour & Fils’ knowledge of the condition of the cargo when it was loaded aboard the vessel is attributable to Cummins as principal. The record, however, does not support this assertion. It is not clear exactly whose agent Gargour & Fils was. In a March 29, 1967, letter to Cummins, Taylor Woodrow referred to Gargour & Fils as “the Tripoli agents of the steamship company [Transmarin] which carried the [building] on the outward shipment,” and it is conceivable that Gargour & Fils was Hansa’s Tripoli agent as well. It is clear, however, that Gargour & Fils acted on instructions from Taylor Woodrow, not from Cummins. Secondly, Hansa points out that the terms of Mid-East’s contract with Taylor Woodrow were “C.I.F. — Tripoli,” and that Mid-East thus took title to the prefabricated building in London during February 1967. The thrust of this argument is somewhat unclear. On the one hand, Hansa may be arguing that Cummins, through its forty-nine percent control of Mid-East, took title to the building in February 1967, and thus could not have relied on the clean bill of lading in May 1967, when it accepted the sight drafts. On the other hand, Hansa may be pointing out that the re-shipment contract between Taylor Woodrow and Cummins contained the same C.I.F. term as was present in the Taylor Woodrow-Mid-East contract, and thus that Cummins took title to the building in Tripoli, prior to the issuance and negotiation of Hansa’s bill of lading. Neither of these arguments, however, is relevant to a determination of Cummins’ rights as against the carrier, because a C.I.F. term merely allocates the risk of loss of goods in transit as between the buyer and the seller (Taylor Woodrow). Gilmore & Black, The Law of Admiralty, 96, 97 (1957). Thirdly, Hansa contends that Cummins unconditionally obligated itself to pay Taylor Woodrow for the building on March 30, 1967, that Cummins actually paid Taylor Woodrow the twenty-five percent down payment on April 24, 1967, and therefore Cummins did not change its position in reliance on the clean bill of lading by accepting the sight drafts approximately one month later. This argument, however, overlooks the fact that in a sale such as this one, requiring payment against documents, the purchaser’s unconditional obligation to pay for the goods does not arise until presentment of drafts with a bill of lading attached. Uniform Commercial Code § 2-320(4); Gilmore & Black, supra at 99-104. And although Cummins did pay the twenty-five percent down payment before issuance or negotiation of the bill of lading, it had no reason at that time to believe that the cargo would be otherwise than in good order and condition. Accordingly we hold that Cummins, like the consignees in The CARSO, supra, gave value in reliance on the bill of lading when, in May 1967, it accepted the sight drafts with the clean bill of lading attached. Hansa was therefore estopped from attempting to show preshipment damage; and because Hansa did not carry its burden of disproving negligence or unseaworthiness or of establishing one of the exceptions to liability under COGSA, we hold that the trial court properly resolved the question of liability favorably to Cummins. We turn briefly to the question of damages. The basis for the trial court’s computation was Mr. Howard’s statement that the damages amounted to “seventy-five percent of the cost of the building.” The trial court multiplied this percentage by the invoice cost of the building in London, roughly $50,000, and subtracted the $11,000 in salvage sale proceeds from the resulting amount, yielding a net recovery of roughly $27,000 (plus incidental expenses, interest, and costs). In our view, this method of computing damages was erroneous, reflecting a misinterpretation of Mr. Howard’s testimony. As Mr. Howard later explained, the seventy-five percent figure did not represent a monetary estimate of the extent of the damage or the cost of repair or replacement. Rather, it was an estimate of the number of components, by quantity, that had suffered some damage, from minor damage to complete destruction. Thus, the percentage figure was not intended to serve as the basis for computation of money damages. At the same time, we must reject Cummins’ claim that the cargo was a constructive total loss, even under the liberal American rule that a constructive total loss occurs if costs of repair or replacement exceed one-half the value of the cargo. Gilmore & Black, supra at 77. Aside from Mr. Howard’s seventy-five percent figure, which, as we have seen, cannot be translated into a monetary damage estimate, the trial produced estimates of repair and replacement costs ranging from $10,690 to a maximum of $20,000. Cummins offered evidence that the sound value of the components in 1967 was $41,275; that the invoice cost was $50,307.60; and that the insured value was $55,326.19. It is apparent that the highest meaningful estimate of damage ($20,000) did not exceed one-half of even the lowest of these valuations ($41,275). We therefore remand the case for redetermination of damages: Upon remand, the trial-court should apply the long-settled rule that the measure of damages is the difference between the market value of the cargo in sound condition in Houston on the date the GOLDENFELS arrived (June 26, 1967), and the market value of the damaged cargo in Houston at that time. See, e. g., Encyclopaedia Brittanica, Inc. v. S.S. HONG KONG PRODUCER, 2d Cir. 1969, 422 F.2d 7, Holden v. S.S. KENDALL FISH, 5th Cir. 1968, 395 F.2d 910; Atlantic Mutual Insurance Company v. Poseidon Schiffahrt, 7th Cir. 1963, 313 F.2d 872. Absent other evidence of the market value of the damaged cargo in Houston on the date of outturn, the proceeds of the salvage sale may be taken as establishing the market value. If no market for the cargo in sound condition existed in Houston on or about June 26, 1967, then Cummins is entitled to the reasonable cost of repairs. Affirmed in part; reversed and remanded in part.

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RUIDOSO RACING ASSOCIATION, INC., Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 72-1355. United States Court of Appeals, Tenth Circuit. Argued and Submitted Jan. 9, 1973. Decided April 4, 1973. Edward Heilbronner, Washington, D. C. (Edward L. Kane, Haskins, Lewis, Nugent & Newnham, La Jolla, Cal., and Sparber, Zemel, Roskin & Heilbronner, on the brief), for petitioner-appellant. Richard S. Halberstein, Atty., Tax Div., Dept, of Justice (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks and Elmer J. Kelsey, Attys., Tax Div., Dept, of Justice, on the brief), for respondent-appellee. Before BREITENSTEIN, McWILLIAMS and BARRETT, Circuit Judges. BREITENSTEIN, Circuit Judge. For the taxable years 1959, 1960, and 1961, the Commissioner of Internal Revenue determined that the total federal income tax deficiencies of Ruidoso Racing Association were $417,000 and that the fraud penalties under § 6653(b) of the Internal Revenue Code of 1954 were $208,000. The Tax Court sustained the Commissioner, see T.C.Memo. 1971-194, and the taxpayer has appealed. Taxpayer is a New Mexico corporation which during the years in question operated a horse racetrack at Ruidoso Downs, New Mexico. At that time its majority stockholder and chief executive officer was Eugene V. Hensley who formulgated policy, maintained complete control of the corporation records, and ran the corporation’s day-to-day business. Hensley’s skill as a racetrack promoter and operator was not equalled by his skill in keeping records or by his ability to comply with federal income tax laws. He was convicted on four counts of income tax evasion and four counts of false returns, all based on his 1959 and 1960 returns and the taxpayer’s returns for the same years. The conviction was affirmed. Hensley v. United States, 10 Cir., 406 F.2d 481. In that opinion we pointed out the use of false invoices and the deduction as business expenses of gratuities to friends and relatives. 406 F.2d at 483, 484. The findings of the Tax Court in the instant case outline with meticulous care the many transactions and occurrences which formed the basis for the Commissioner’s determination and the procedures which the Commissioner used in reaching his results. We will be concerned only with those details necessary to an understanding of this opinion. The taxpayer acknowledges that improper deductions were claimed on its tax returns as a result of the manipulations of Hensley and the false invoices secured by him. The first question relates to whether the Tax Court correctly found that there was a fraudulent intent which would toll the three-year statute of limitations, see § 6501(c)(1) of the Internal Revenue Code of 1954, and which would justify the imposition of the § 6653(b) penalties. The Commissioner has the burden to prove fraud for each year by clear and convincing evidence. United States v. Thompson, 10 Cir., 279 F.2d 165, 167. It is not necessary that the Commissioner prove the precise amount of the underpayment resulting from fraud but only that “any part” thereof is attributable to fraud. Int.Rev.Code of 1954, § 6653(b), and Estate of W. Y. Brame, 25 T.C. 824, 831, aff’d per curiam, 5 Cir., 256 F.2d 343. The determinative issue is whether the fraud of Hensley may be imputed to the corporation. A corporation is not absolved from liability for the fraudulent acts of an agent by the fact that the agent derived personal benefit therefrom. Gleason v. Seaboard Air Line Ry., 278 U.S. 349, 353, 357, 49 S.Ct. 161, 73 L.Ed. 415; Auerbach Shoe Co. v. Commissioner, 1 Cir., 216 F.2d 693, 697. The pertinent questions are (1) whether the corporate agent so controlled the corporation that the corporate entity is destroyed and the corporation becomes the individual’s alter ego and (2) whether the agent was acting in behalf of and not against the corporation with the result that the corporation benefited from his fraudulent acts. Asphalt Industries, Inc. v. Commissioner, 3 Cir., 384 F.2d 229, 234; and Botwinik Brothers of Mass., Inc. 39 T.C. 988, 996. If either (1) or (2) applies, the fraud of the agent may be imputed to the corporation. During the years in question, Hensley owned or controlled 62% of taxpayer’s stock, was a member of its board of directors, and was its chief executive officer. Regardless of Hensley’s potential control of the corporation, practical restraints inhibited the exercise of that control. He was only one of three members of the board of directors. The New Mexico Racing Commission had ordered him to reduce his stock holdings below 40%. His full exercise of control might well have jeopardized taxpayer’s relations with the Racing Commission. His potential for taking money out of the corporation was more limited than in the ease of a sole stockholder. About 40% of any dividend would go to other stockholders. Cf. Federbush v. Commissioner, 2 Cir., 325 F.2d 1, 2. In the circumstances we are not faced with an alter ego situation. The question, then, is whether the taxpayer benefited from Hensley’s fraudulent acts. At the outset we reject the argument that benefit is shown by the financial success of the corporation under Hensley’s stewardship and that the corporation condoned Hensley’s fraudulent acts. The issue is whether Taxpayer urges that no fraud may be found for the year 1961 because the taxpayer filed a “clean return” for that year. The taxpayer sought to avoid carrying Hensley’s fraud into the 1961 return by instructing its accountant to perform a thorough audit for that year, those acts resulted in a tax benefit to the corporation. A tax benefit could arise in two ways, understatement of income and overstatement of business expense deductions. With regard to the first, the Tax Court found that the taxpayer’s sales of beverages, not recorded on its books or records or reported on its income tax returns, were: 1959 — $73,894.-78; 1960 — $90,340.20; and 1961— $71,334.26. These sales arose from the taxpayer’s operation of two bars. Taxpayer showed that on occasion it provided free drinks to newsmen, television and radio people, celebrities, horseowners, and big bettors, but it maintained no record of the amount of beverages which it provided gratis. We will return later to the question of liquor sales. It is enough to say at this time that the failure to report bar income reduced total income and, hence, produced a tax benefit for the corporation. Although mere understatement of income does not establish fraud, James Nicholson, 32 B. T.A. 977, 989, aff’d, 8 Cir., 90 F.2d 978, and fraud with intent to evade tax must be affirmatively established, United States v. Thompson, 10 Cir., 279 F.2d 165, 167, the omission of the bar receipts from income is a factor which may not be disregarded in this case. Business expenses were increased through the use of false invoices and fictitious record entries. In considering this phase of the case we are not concerned with items which benefited Hensley, his relatives, and his friends and which were improperly charged to, and paid by, the corporation. The pertinent items include the false enhancement of operational and administrative expense during each of the three years, the treatment of purchase of capital assets as rental thereof, and the expensing of building supplies and labor used for capital construction. As to the last item, taxpayer says that it results from Hensley’s lack of accounting understanding and ability, but we are not impressed. The difficulty is that the accountant told the IRS that there was nothing he could do about false invoices. The taxpayer relies heavily on Asphalt Industries, Inc. v. Commissioner, 3 Cir., 384 F.2d 229, and Botwinik Brothers of Mass., Inc., 39 T.C. 988. In Asphalt Industries, the company stock was owned equally by two individuals. The question was whether the fraud of one could be imputed to the company and the court held that it could not. In Botwinik there were several stockholders and the holding was that the fraud of a minority stockholder could not be imputed to the company. Each decision recognizes that to impute fraud in a tax case it must be shown that the agent was acting in behalf of, and not against, the interests of the corporation. Asphalt Industries and Botwinik are distinguishable from the case at bar. Botwinik involved the misstatement of corporation income resulting from a minority shareholder’s attempt to cover her embezzlement. The fraud was not perpetrated to benefit the corporation as in the case at bar. In Asphalt Industries the culpable agent was found to have dominated the corporation’s affairs and intended to effect corporate tax saving by his fraud but the court appeared unwilling to impute fraud to the corporation when the burden of the 50% penalty would fall on an innocent shareholder. Such a consideration is not relevant in the case at bar. A minority stockholders’ derivative suit against Hensley was settled in 1963. In 1969, an agreement for the sale by Hensley and his ex-wife of their stock in taxpayer provided that if the tax liability in the case at bar exceeded $325,000, including penalties and interest, the sellers should reimburse the buyer in the proportion that their stock bore to the total outstanding stock. Such protective measures were not present in Asphalt. Moreover, the fraud penalty is remedial in nature and is a safeguard for the protection of revenue, intended to reimburse the government for the expense of investigation and the loss from fraud. United States v. Thompson, 10 Cir., 279 F.2d 165, 166. Protection of innocent shareholders thus may not be an appropriate concern so long as the other elements necessary to impute fraud to the corporation are present. The Tax Court found that the affirmative evidence of fraud during all three years was overwhelming. The existence of fraud is a question of fact, and, hence, the Tax Court’s findings are final unless clearly erroneous. Commissioner v. Duberstein, 363 U.S. 278, 291-292, 80 S.Ct. 1190, 4 L.Ed.2d 1218. On the record presented, no other finding than that of the Tax Court is within the realm of reason. The Tax Court held that, viewing the record in its entirety, the fraudulent acts of Hensley should be imputed to taxpayer. We agree because we are convinced that in each taxable year the fraudulent acts were in substantial part for the tax benefit of, and intended to be for the tax benefit of, the taxpayer. Accordingly, the statute of limitations was tolled, see § 6501(c)(1), and fraud penalties were properly imposed under § 6653(b). These conclusions make it unnecessary to consider whether the limitation period for 1961 was extended by agreement. Our next concern is with the validity of the deficiency assessments, which are presumptively correct. Wallis v. Commissioner, 10 Cir., 357 F.2d 313, 314. The burden is on the taxpayer to show the invalidity of the Commissioner’s action. Helvering v. Taylor, 293 U.S. 507, 515, 55 S.Ct. 287, 79 L.Ed. 623. With regard to unreported income, the taxpayer must prove that the determination is arbitrary or erroneous, and if it does so the Commissioner must satisfy the court as to the existence and amount of unreported income. Ibid. The unreported bar sales fall into this category. The Commissioner computed the deficiency for unreported sales by taking the amount of liquor purchased and by assigning percentage amounts to sales and promotion. The amount thus determined to have been sold was divided by the standard size of the drinks sold and multiplied by the minimum price therefor. With the exception of draft beer sales, the taxpayer’s objections merit little consideration. Taxpayer says that the Commissioner’s method was arbitrary because it failed to take into account spillage, breakage, and theft. Taxpayer assumes these conditions and adduced no proof that they would have materially affected the amounts found by the Commissioner. The showing is insufficient and does not defeat the presumption of correctness. Taxpayer says that the Commissioner failed to take into account bottle sales. It is enough to say that the testimony of bottle sales was ambiguous and unsatisfactory. The Commissioner ignored beginning and ending inventories and based his determination on purchases. If there were such inventories, we cannot find them in the record. The frequency of purchases makes it doubtful that inventory was a significant factor. As neither beginning nor ending inventory was taken into account, the effects thereof are, at the most, problematical. In any event, the taxpayer presented no evidence that lack of inventory consideration destroys the validity of the Commissioner’s determination and, hence, failed to meet its burden. Draft beer sales are in another category. The uncontradicted evidence is that taxpayer made no draft beer sales and that all sales of draft beer were made by a concessionaire. This evidence may not be disregarded. Potucek v. Cordeleria Lourdes, 10 Cir., 310 F.2d 527, 531, cert. denied 372 U.S. 930, 83 S.Ct. 875, 9 L.Ed.2d 734. However this error of the Commissioner does not destroy the presumption of validity as to the balance of the deficiency. Draft beer transactions were separately computed by the Commissioner and are severable from the balance of the deficiency. All that is required is that the case be remanded for a recomputation which excludes draft beer sales. The taxpayer has a greater burden with regard to deductions. Because these are allowed only as a matter of legislative grace, the taxpayer must establish not only error or arbitrary action but also must sufficiently persuade the fact finder as to the amount of deduction which is allowable on each claimed item. United States v. Olympic Radio & Television, Inc., 349 U.S. 232, 235, 75 S.Ct. 733, 99 L.Ed. 1024, and Burnet v. Houston, 283 U.S. 223, 227, 51 S.Ct. 350, 75 L.Ed. 1439. Taxpayer does not dispute the propriety or correctness of each individual adjustment made for the taxable years. Instead, it attempts to discredit the entire determination by consideration of particular items. The first has to do with the capitalization of certain expenditures for maintenance, repairs, and labor. The Tax Court found, and we agree, that the taxpayer’s records failed to adequately separate repair expenses and capital expenditures. The Commissioner capitalized 75% of the taxpayer’s disbursements for building materials and an equal proportion of labor costs. In effect, taxpayer argues that the Commissioner’s action was arbitrary because it failed to take into account each board, nail, and hour of labor. The Tax Court found that the method used was reasonable. There was testimony that the 75% figure was based on interviews with those familiar with construction in the area and a personal inspection of the racing plant by the examining revenue agent. Absent accurate accounting, the use of a percentage was not arbitrary. Anson v. Commissioner, 10 Cir., 328 F.2d 703, 706-707. The taxpayer’s next attack is on the increase in useful life of depreciable assets. We do not agree with the taxpayer’s interpretation of the pertinent schedules. In any event, the allowance of a certain useful life for one year does not preclude the Commissioner from determining a longer useful life for another year and, if there is an error in any year, the burden of proof is on the taxpayer. Broadhead v. Commissioner, 5 Cir., 254 F.2d 169, 170. The claimed inconsistency of the Commissioner is no substitute for proof of actual error. See Gasper v. Commissioner, 6 Cir., 225 F.2d 284, 288. During the years in question the taxpayer had an airplane and pilot. The Commissioner computed the amount attributable to airplane expense and then disallowed 75% of that amount which was assigned to personal use of the plane by Hensley. Taxpayer offered no evidence of the correct amount of airplane expense. The plane’s logbook was not introduced. In the absence of records showing the use of the plane, the Commissioner’s percentage estimate was not arbitrary. Anson v. Commissioner, 10 Cir., 328 F.2d 703, 706-707. Indeed, an accountant for taxpayer had suggested to it the use of a percentage for computing airplane expense. The taxpayer attacks the Commissioner’s disallowance of substantial deductions which have been lumped together under the category of “operating expenses.” Within this group are a wide variety of disbursements which were identified with varying degrees of accuracy by witnesses whose testimony was not convincing. The Tax Court held that the showing was insufficient to overcome the presumption of validity, and we agree. The ease is remanded to the Tax Court for the determination of the receipts from beverage sales without the inclusion therein of draft beer sales, Otherwise, the opinion and order of the Tax Court are sustained. Each party shall bear its own costs.

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Michael C. CALLAN and Thomas J. Callan, Jr., Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 26774. United States Court of Appeals, Ninth Circuit. March 28, 1973. Minot W. Tripp, Jr. (argued), Robert M. Winokur, Taylor, Winokur & Schoenberg, San Francisco, Cal., for petitioners-appellants. John A. Townsend, IRS (argued), Johnnie M. Walters, Asst. Atty. Gen., Dept, of Justice, K. Martin Worthy, Chief Counsel, IRS, Meyer Rothwacks, Thomas L. Stapleton, Tax Division, Dept, of Justice, Washington, D. C., for respondent-appellee. Before MERRILL and ELY, Circuit Judges, and SOLOMON, District Judge. Honorable Gus J. Solomon, United States District Judge for the District of Oregon, sitting by designation. PER CURIAM: The issue here presented for review is whether certain transactions entered into by a dissolved corporation which, after dissolution, had been determined to be a personal holding company during a period of its existence, qualified for the deficiency dividends deduction under § 547 of the Internal Revenue Code. Appellants each owned fifty percent of the stock of Callan Investment Company, a California corporation. On March 12, 1965, the corporation was dissolved and all assets and liabilities were distributed equally to the Callans in exchange for their capital stock. A certificate of winding up and dissolution was filed with the Secretary of State of California. By state law, West Cal.Corp. Code § 5400 (West 1954), a dissolved corporation “nevertheless continues to exist for the purpose of winding up its affairs, prosecuting and defending actions by or against it, and enabling it to collect and discharge obligations * * *.” In 1968 the Commissioner determined that for the taxable year ending February 28, 1965, and the period ending March 12, 1965, the corporation was a personal holding company, having undistributed personal holding company income. Deficiencies in the payment of taxes were determined in the sums of $13,943.28 and $671.86. The Commissioner further determined that appellants, as transferees of the assets of the corporation, were jointly and severally liable for the deficiencies. On March 22, 1968, a special meeting of the corporation’s board of directors was held and resolutions were adopted requesting the shareholders to contribute a total of $21,000 “to enable this corporation to discharge its obligations.” Appellants were authorized to establish a bank account and draw checks on it. The account was established. Appellants paid $21,000 into it. The board of directors then held another meeting. Pursuant to Internal Revenue Code § 547 they purported to declare “deficiency dividends” in the amounts of $19,918.98 and $959.82, payable to appellants as shareholders. These sums were paid out of the special bank account. On May 13, 1968, the corporation filed a claim for a deficiency dividends deduction. The Commissioner disallowed the claim. Later, appellants filed amended income tax returns for the calendar year 1968, reporting an increase in income in the amounts of the “deficiency dividends” received from the corporation. The Tax Court upheld the deficiencies determined by the Commissioner. It held the purported distribution in 1968 was not a genuine distribution for purposes of Internal Revenue Code § 316 (b)(2) and therefore did not qualify for the deficiency dividends, deduction under Internal Revenue Code § 547. For the reasons set forth in its opinion, 54 T.C. 1514, we agree. Affirmed.

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Siamack ZAIMI, Appellant, v. UNITED STATES, Appellee. No. 23933. United States Court of Appeals, District of Columbia Circuit. Argued April 13, 1971. Decided Feb. 7, 1973. Robert C. Maynard, Washington, D. C., with whom Ralph J. Temple, Washington, D. C., was on the brief, for appellant. Warren R. King, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty., at the time the brief was filed, John A. Terry and Henry F. Greene, Asst. U. S. Attys., were on the brief, for appellee. Before WRIGHT, ROBINSON and WILKEY, Circuit Judges. SPOTTSWOOD W. ROBINSON, III, Circuit Judge: This appeal is from affirmance by the District of Columbia Court of Appeals of a judgment of the District of Columbia Court of General Sessions convicting appellant, Siamack Zaimi, of “bring[ing]” the Shah of Iran “into public disrepute” in purported violation of D.C.Code § 22-1115. Zaimi contends that that section imposes an unconstitutional restraint on freedom of speech and that the evidence at his trial was insufficient to warrant conviction. We conclude that the activities upon which Zaimi’s conviction rested did not infringe Section 22-1115. Accordingly, and without reaching Zaimi’s constitutional arguments, we reverse. I On June 12, 1968, while the' Shah of Iran was in temporary residence at Blair House during an official visit to the United States, Zaimi and a companion, Khosro Kalantari, became principals in two incidents on the sidewalk across the street from Blair House. The first occurred about 12:30 p. m. when, as the Shah was getting into a car en route to the White House, Zaimi and Kalantari stepped off the curb and “shouted” in a foreign language. The second episode took place about 2:10 p. m. while the Shah was inside Blair House. Zaimi and his companion were again observed on the sidewalk, and Zaimi was carrying “something wrapped” under his arm. Police officers approached, inquired as to what it was, and were told that it was a banner which Zaimi intended to unfurl when the Shah came out of Blair House. The officers seized the banner, informing them it would be unlawful to display it within five hundred feet of Blair House while the Shah was staying there. Then followed the events which precipitated their arrests. Failing in efforts to persuade the officers to return the banner, Kalantari, and then Zaimi, mounted a curbing beside the sidewalk and each began “shouting,” partly in English and partly in a foreign tongue. As described at trial, Kalantari declared “that the Shah was selling out to American capitalists” and Zaimi “said approximately the same thing.” The speeches lasted about five minutes; about thirty people were standing nearby and “[t]hey just watched what was going on.” It appears without controversy that Zaimi and Kalantari were then within five hundred feet of Blair House, and that neither had a permit to engage in speeehmaking at that point. Officers advised the pair that they were violating íhe law and, when they refused to desist, placed them under arrest. Zaimi and Kalantari were jointly prosecuted on an information laying two charges under Section 22-1115. The first was that they “did [i]ntimidate, coerce, harass and bring into public disrepute an officer of a foreign government . . . within five hundred feet of a building being used and occupied by the representative of a foreign government . for an official purpose without a permit from the Chief of Police . The second charge was that they “did congregate within five hundred feet of such building . and refuse to disperse after having been ordered so to do by the police authorities. . . . ” At the conclusion of trial, without a jury, the District of Columbia Court of General Sessions granted a defense motion to dismiss the second charge, but found both guilty on the charge, in the court’s words, “that they did bring into public disrepute an officer of a foreign government, the Shah of Iran. . . . ” Each was sentenced to pay a fine of $100 or spend five days in jail. The District of Columbia Court of Appeals rejecting Zaimi’s constitutional and insufficiency-of-evidence claims, affirmed and the case is here for our review. II For convenience of analysis, we reproduce Section 22-1115 in toto. It provides : It shall be unlawful to display any flag, banner, placard, or device designed or adapted to intimidate, coerce, or bring into public odium any foreign government, party, or organization, or any officer or officers thereof, or to bring into public disrepute political, social, or economic acts, views, or purposes of any foreign government, party, or organization, or to intimidate, coerce, harass, or bring into public disrepute any officer or officers or diplomatic or consular representatives of any foreign government, or to interfere with the free and safe pursuit of the duties of any diplomatic or consular representatives of any foreign government, within five hundred feet of any building or premises within the District of Columbia used or occupied by any foreign government or its representative or representatives as an embassy, legation, consulate, or for other official purposes, except by, and in accordance with, a permit issued by the superintendent of police of the said District; or to congregate within five hundred feet of any such building or premises, and refuse to disperse after having been ordered so to do by the police authorities of the said District. This was the statute upon which Zaimi was charged, tried and convicted, and the first effort it beckons is one to ascertain just what species of conduct its multifarious provisions restrict. As even the most careful examination of this section discloses, the reach of some of its prohibitions is far from certain. In two of its several aspects, the meaning of Section 22-1115 rings clearly. One is the portion following the only semicolon — the fifth prohibition, making it unlawful “to congregate within five hundred feet of any such building or premises, and refuse to disperse after having been ordered so to do by the police authorities of the said District.” It is apparent merely from a reading that this interdiction is functionally as well as grammatically separate from those preceding it. The other aspect in which the statutory language presents no difficulty is the first prohibition, making it unlawful “to display any flag, banner, placard, or device designed or adapted to intimidate, coerce, or bring into public odium any foreign government, party, or organization, or any officer or officers thereof.” It is evident, as the parties recognize, that there can be no violation of this injunction without a “display” of a “flag, banner, placard, or device” which is “designed or adapted” to produce one or more of the enumerated consequences. The remaining provisions of Section 22-1115, however, are not nearly so distinct. The second prohibition relates to conduct intended “to bring into public disrepute political, social, or economic acts, views, or purposes of any foreign government, party or organization.” The third prohibition refers to activity calculated “to intimidate, coerce, harass, or bring into public disrepute any officer or officers or diplomatic or consular representatives of any foreign government.” The fourth prohibition is aimed at behavior undertaking “to interfere with the free and safe pursuit of the duties of any diplomatic or consular representatives of any foreign government.” The question, however, is whether Section 22-1115 means that “[i]t shall be unlawful [simply] to” achieve a result specified in these three provisions, or whether it means that “[i]t shall be unlawful to display any flag, banner, placard, or device designed or adapted to” achieve the prohibited result. Thus we are confronted by the problem whether the second, third and fourth prohibitions of Section 22-1115 intercept conduct which does not involve the “display” of a “flag, banner, placard, or device designed or adapted” to bring about one or more of the effects condemned. Stated differently, the problem is whether an offense under Section 22-1115 is committed simply by utterances unaccompanied by a “congregating]” or a “display” of a “flag, banner, placard, or other device” which is “designed or adapted” to accomplish an end which the section undertakes to forbid. If not, it follows that Zaimi did not trespass upon the statute for, as the trial judge found, there was no “congregating]” and, as the uncontradieted evidence demonstrated, the banner which Zaimi at one time carried was never “display [ed].” We have not previously had occasion to examine the scope of Section 22-1115 in this regard. In Frend v. United States, this court was summoned primarily to resolve a First Amendment challenge by four defendants in a situation where an infraction was beyond peradventure. As the opinion in that case states, “[t]he evidence abundantly shows that all four defendants flagrantly violated the terms of the” statute, for “[a]t the time of the arrest, each defendant was parading in the public streets in front of the Austrian or the German embassy with a number of other persons, some of whom were carrying banners or placards inscribed with language . . . intended and calculated to bring into contempt the German Government.” Since “this congregation of people with opprobrious signs and songs in the streets in front of the embassies was a concerted, prearranged plan intended ‘to bring into public disrepute political, social, or economic views' . . . of [a] foreign government,’ ” the conclusion was that “[i]n the circumstances, and without stopping to determine whether each of the defendants was then displaying one of the placards mentioned, we think that all are guilty under the provisions of the local law making it an offense to aid and abet in a violation of a law.” Neither in Frené nor in any other case have we been called upon to determine whether. Section 22-1115 tolerates a conviction where the allegedly offensive conduct consisted wholly in spoken words. The parties did not deal with this problem in their briefs or oral arguments. When, after submission of the case, it became apparent to us that it lay at the threshold, we invited supplemental memoranda addressed to it. The parties responded, each arguing that Section 22-1115 covers speech as well as demonstrative acts. We have carefully considered these presentations, and have ourselves investigated the matter independently. We detail herein the fruits of our study. Our starting point is the language of Section 22-1115, and it is obvious that it is readily susceptible to either of two possible constructions. By one— which the parties advocate — the statute would limit the need for “display” of a “flag, banner, placard, or device” to the first prohibition. If this is what the statute means, the second, third and fourth prohibitions could be violated by utterances without more. On the other hand, Section 22-1115 may with equal facility be construed as extending the need for “display” of a “flag, banner, placard or device” to each of its prohibitions except the fifth, forbidding “congregateing].” By this interpretation, utterances alone would not bring the person making them within the purview of the statute. Rather, Section 22-1115 would proscribe only two acts: (a) the “display,” without a permit and within five hundred feet of premises used by representatives of a foreign government of a “flag, banner, placard, or device designed or adapted” to bring about results made taboo by the first four prohibitions; and (b) the “congregat[ing],” within the five hundred foot area, of persons who refuse to disperse upon request of the police, whether or not there is such a display. Ill- Lacking a decisive indication in the statutory text as to the choice properly to be made between these two constructional alternatives, we turn to the legislative history for such assistance as it may afford. Section 22-1115 had its genesis in a joint resolution introduced by Senator Pittman, Chairman of the Senate Committee on Foreign Relations. As offered, the resolution, to the extent pertinent to the question here, contained two discrete provisions. One, which was to forerun Section 22-1115, specified It shall be unlawful [1] to display any flag, banner, placard, or device designed or adapted [a] to intimidate, coerce, or bring into public odium any [i] foreign government, [ii] party, [iii] or organization, [iv] or any officer or officers thereof, or [b] to bring into public disrepute [i] political [acts, views, or purposes], [ii] social [acts, views, or purposes], or [iii] economic acts, views, or purposes of any [i] foreign government, [ii] party, or [iii] organization, or [c] to intimidate, coerce, harass, or bring into public disrepute any [i] officer or officers or [ii] diplomatic or consular representatives of any foreign government, or [d] to interfere with the free and safe pursuit of the duties of any diplomatic or consular representatives of any foreign government, within five hundred feet of any building or premises within the District of Columbia used or occupied by any foreign government or its representative or representatives as an embassy, legation, consulate, or for other official purposes, except by, and in accordance with, a permit issued by the superintendent of police of the said District; or [2] to congregate within five hundred feet of any such building or premises, and refuse to disperse after having been ordered so to do by the police authorities of the said District. That it shall be unlawful to display any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement, or the political, social, or economic views or purposes of any individual or group, upon any portion of any public highway, street, or alley, including the sidewalks and parkways on both sides thereof, within the District of Columbia adjacent to or within five hundred feet of any building or premises used or occupied by any foreign government or its representatives as an embassy or for diplomatic or other official purposes, except by, and in accordance with, a permit issued by the superintendent of police of the said District; or to congregate upon any such portion of any highway, street, alley, sidewalk, or parkway, and refuse to disperse after having been ordered so to do by the police authorities, of the said District. The other, directed toward loitering on public thoroughfares in the vicinity of such premises, specified that It shall be unlawful for any person or persons, singly or in groups, to loiter upon any portion of any public highway, street, alley, sidewalk, or any parkway along the same, within the District of Columbia adjacent to any premises used or occupied by any foreign government or its representatives as an embassy or for diplomatic or other official purposes. Senator Pittman’s resolution was referred to the Senate Committee on Foreign Relations, which promptly reported a measure to the Senate. The Committee’s version was quite similar to the first provision of the Pittman proposal: [I] t shall be unlawful to display any flag, banner, or device or design adapted to bring into public notice any party, organization, or movement, or the political, social, or economic acts, views, or purposes of any individual, party, group, or organization within 500 feet of any building or premises within the District of Columbia used or occupied by any foreign government or its representatives as an embassy or for diplomatic or other official purposes, except by and in accordance with the permit issued by the superintendent of police of the said District; or to congregate within 500 feet of any such building or premises and refuse to disperse after having notice so to do by the police authorities of the said District. The Committee, however, dropped the Pittman provision dealing with loitering. Plainly, the resolution offered by Senator Pittman undertook proscription only of picketing, congregating and loitering near diplomatic sanctuaries. The first provision would have made unlawful only some “display” of a “flag, banner, or device designed or adapted to bring” certain things “into public notice,” when the “display” occurred in close proximity to premises used by foreign governments or their representatives and without a permit authorizing that action; or some “congregat[ing]” on public thoroughfares in the vicinity of such premises, coupled with a refusal to disperse after being ordered to do so by police. The same must be said for the resolution reported out by the Senate Committee on Foreign Relations. Neither version would have condemned any conduct unassociated with some form of “eongregat[ing]” or some “display” of a “flag, banner, or device” having a particularized design or adaptation. And although Senator Pittman’s offering would also have imposed a ban upon loitering, the Committee omitted it. When the resolution came up for debate in the Senate, Senator Pittman declared that its first proscription “merely prohibits a display of flags or banners within 500 feet of an embassy or legation or consulate when the flags or banners or devices are intended to bring into public notice an organization or party or group.” The motivation for the resolution, he explained, was the need to protect diplomatic sanctuaries in the United States in order to secure proteetion of American citizens abroad, particularly those seeking shelter within our own sanctuaries in countries experiencing internal conflict. Queried by Senator La Follette as to whether “anything has happened in the City of Washington which . . . threatened or endangered the life of any of the representatives of other governments,” Senator Pittman read a statement of a police inspector describing the picketing of four embassies, and a letter from then Secretary of State Hull urging adoption of the resolution. The bill reported by the Committee on Foreign Relations, however, was not to engage the attention of the Senate for very long, for Senators Pittman and La Follette each offered amendments as complete substitutes for the Committee’s version. It was the Pittman amendment, with but a single modification, which was to emerge as the present Seetion 22-1115. The La Follette amendment, on the other hand, adopted an entirely different approach. It would have amended an existing statute prohibiting disorderly conduct and assemblages, and unquestionably would have forbidden some types of vocal communication as well as some displays of banners and placards. Despite the textual differences in the Pittman amendment, neither upon its introduction nor at any point during the lengthy debate that followed did Senator Pittman unequivocally indicate a desire to expand the restriction on communication beyond displays of the type which the Committee’s resolution would have outlawed. The Senator emphasized his purpose to protect the safety of occupants of diplomatic sanctuaries from demonstrations likely to erupt in mob violence, and referred repeatedly to displays of banners and placards. At no time, however, did the Senator or any of his colleagues make any statement clearly indicative either of an intention to intercept mere utterances or an understanding that his amendment would do so. Some amount of discussion followed inquiries to Senator Pittman as to why his goals would not be attained by the amendment tendered by Senator La Follette. That amendment, as we have said, would have forbidden some kinds of utterances as well as displays of some kinds of banners and devices. The colloquies ensuing upon such inquiries underscore Senator Pittman’s concern over picketing rather than speechmaking. When Senator Vandenberg questioned Senator Pittman’s reluctance to accede to Senator La Follette’s substitute, Senator Pittman replied: The Attorney General is very anxious to assure them that their homes will be safe from .any attacks, that their families will be safe from any attacks or intimidation, and that their government shall not be brought into disrepute, and that odium shall not be placed upon them right in their faces by the display of placards and banners in front of their embassies or legations. When Senator Vandenberg pointed out that the La Follette amendment would “prohibit not only the things to which [Senator Pittman’s] resolution refers but a great many other things,” Senator Pittman argued that the La Follette proposal, while it does not meet the material questions at all, is in the nature of an insult to the very principle and policy that the nations have recognized with regard to ambassadors and ministers since the beginning of government. We are to put them in the same position, it is understood, as passersby on the street; if the picketers do not indulge in any swearing or use obscene language, then the ambassadors or ministers have no right whatsoever to complain. And when Senator La Follette insisted that Senator Pittman “tell the Senate, if my amendment were agreed to, what could take place that . . . would . [be] objectionable if the police enforced the law,” Senator Pittman retorted: [You ask me] what they can do besides insult? What can they do without using obscene language? What can they do without swearing? Those are the acts against which [Senator La Follette’s substitute] protects. What can they do? They can inscribe on a banner and hold it right in front of the entrance of an embassy. Thus Senator Pittman, the author and proponent of the amendment which ultimately became Section 22-1115, rejected a specific prohibition against oral communication. In the ■ waning moments of debate, Senator La Follette focused on the part of Senator Pittman’s amendment making it unlawful “to bring into public notice . . . any political, social or economic acts, views, or purposes of any foreign government, party, or organization, or to intimidate, coerce, harass, or bring into public disrepute. . . . ” Senator La Follette declared that Senator Pittman “has again and again indicated that he does not believe that the people in this country have the right or should have the right, no matter how well they conduct themselves, no matter how proper or appropriate their representations may be, to go within 500 feet of any premises occupied by the representative of any government accredited to this country.” Senator Pittman replied: There is hardly any use is discussing the matter any longer with the Senator. The language shows that it refers to the carrying of banners or devices. If the Senator still thinks that the offense is walking up and down, I cannot agree with him. The significance of this response derives from the fact that the language of the Pittman amendment to which Senator La Follette referred is outside the clause which contains the language “to display any flag, banner, placard, or device designed or adapted. . . . ” Shortly after this duologue, the debate ended. Senator La Follette’s substitute bill was voted down; Senator Pittman accepted a proviso to his substitute which, as thus modified, was passed. The Pittman version then traveled the route to enactment without further change or debate. In sum, Section 22-1115 began as a committee-fashioned joint resolution framed in language which could leave no doubt as to its inapplicability to spoken as distinguished from written and symbolic communications. Although that formulation was soon displaced by Senator Pittman’s amendment, which eventuated as the enacted measure, no difference in goals or proscriptions material to this case was urged or acknowledged. Although it was never said flatly that the Pittman substitute was limited to displays of banners and like paraphernalia, such events as possessed some degree of positivity suggest that it was. And although throughout the long debate the participants constantly and consistently referred to picketing and demonstrating with banners and similar devices, we find not a single statement reliably indicating either advocacy or understanding that the Pittman measure would forbid spoken words. So truly amazing that fact would be if the Pittman measure had been so intended that it is difficult to believe that it was. IV Against this backdrop we measure the contentions of Zaimi and the Government — the latter assuming the burden—that the prohibitions of Section 22-1115 extend to speech as well as other types of conduct transpiring without a permit within the geographical limits set by the section. The Government first asserts that since both the first and the third prohibitions refer to “any officer or officers,” they become redundant unless the third is indulged operation without displays of the type the first eoncededly demands. We cannot agree with this argument. We perceive no significant duplication in the two provisions, and in any event the Government’s interpretation would not remove it. Moreover, “[w]hile courts should interpret a statute with an eye to the surrounding landscape and an ear for harmonizing potentially discordant provisions, these guiding principles are not substitutes for congressional lawmaking.” These considerations apply with even greater force to the Government’s argument that the first and second prohibitions are redundant. We cannot accept these or other feeble suggestions as a panacea for the grave uncertainty bred by the statutory language and history in terms of any embargo on vocal acts. The Government resorts also to the congressional debates in an effort to buttress the construction it espouses. We are told that some of the remarks evince a purpose to proscribe not only picketing with banners and similar devices but every form of conduct intruding upon the inviolability of diplomatic premises. Save for one misread colloquy, the Government does not identify any remarks of that sort, and our own study of the debates has not enabled us to. Lastly, the Government refers to three isolated remarks during debate as demonstrations of a legislative intent to ban utterances. We have discussed those remarks previously, and it suffices to repeat that we cannot read them so boldly. More fundamentally, the Government’s arguments miss the point. The crucial inquiry is not whether Section 22-1115 covers utterances ambivalently, but whether it “plainly and unmistakably” does so. The governing principle is that penal statutes are to be interpreted with exactitude, a rule deriving sustenance from considerations more ancient than the Nation itself. “Reasonable precision. in the definition of crime has been regarded as a desideratum by free people since the early days of the common law.” Moreover, the specification of criminal offenses is peculiarly the business, not of courts, but of legislatures. Criminal statutes are thus “to be construed strictly, not loosely;” “[s]tatutes will not be read to create crimes . . . unless the purpose so to do is plain,” and “ambiguity” concerning the ambit of criminal statutes “should be resolved in favor of lenity.” Nowhere is the need for definitional precision greater than in situations where the statute intrudes upon an area which draws protection from the First Amendment. So it is that “one ‘is not to be subjected to a penalty unless the words of the statute plainly impose it.’ ” Criminal statutes are not to be broadened beyond the fair import of their language; they “may not be held to extend to cases not covered by the words used.” “Before one may be punished, it must appear that his case is plainly within the statute; there are no constructive offenses.” It is evident that Section 22-1115, as applied to utterances; without more, does not meet these wholesome standards. Whatever meager conclusions as to its applicability to oral communications may be drawn from its text and its legislative history, it must be conceded that the section is seriously equivocal on that score. That, we think, is fatal to the conviction under review. We realize that disreputation may be wrought by word of mouth as well as by displays of signs and banners. But “[t]he fact that a particular activity may be within the same general classification and policy of those covered does not necessarily bring it within the ambit of the criminal prohibition.” On the contrary, “[w]e should not derive criminal outlawry from some ambiguous implication,” and “judicial enlargement of a criminal act by interpretation is at war with a fundamental concept of the common law that crimes must be defined with appropriate definiteness.” At the very least, Section 22-1115 is equally conducive to dual interpretations. By one, oral communications do not impinge upon it; by the other, they may. In our view, the case for the first construction is compelling. For “when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.” As the Supreme Court has admonished: This principle is founded on two policies which have long been part of our tradition. First, “a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.” Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. This policy embodies “the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.” Thus, where there is ambiguity in a criminal statute doubts are resolved in favor of the defendant. Perhaps the most striking circumstance in this case is that if Congress had really intended to forbid utterances, it would have been easy enough to have made that plain. Indeed, Senator La Follette did just that in the amendment which Senator Pittman flatly rejected. Section 22-1115 meticulously specifies the consequences against which it erects protection for foreign governments and their representatives, and makes it crystal clear that at least some of its provisions are bulwarks against displays of written and symbolic communication, but it nowhere mentions the spoken word as a prohibited medium. Section 22-1115 thus stands in sharp contrast with the newly enacted Act for the Protection of Foreign Officials and Official Guests of the United States. That legislation pursues objectives not essentially variant from those underlying Section 22-1115, and provides for foreign emissaries in the states safeguards comparable to those afforded by Section 22-1115 and other statutes in the District. One of the Act’s provisions closely resembles Section 22-1115 but, very significantly, it puts in plain English its prohibition against “utter[ances]” of “any word, phrase, sound, or noise” as well as against “parades, pickets, [and] displays [of] any flag, banner, sign, placard, or device.” And the debates on the Act are replete with discussion of its circumscription on utterances, leaving no doubt as to the understanding and intent of Congress in that respect. We perceive no reason why, had Congress intended Section 22-1115 to bar oral as well as demonstrative conduct, it could not have been similarly explicit. Section 22-1115, as we have said, clearly imposes a ban upon “congregating]” within five hundred feet of “building [s] or premises” used or occupied by representatives of foreign governments and refusal “to disperse after having been ordered so to do by the police authorities.” We conclude that the remaining provisions of Section 22-1115, properly construed, come into play only where there is a “display” of a “flag, banner, placard, or device designed or adapted to” produce one or more of the several consequences specified in those provisions. These demonstrative elements, we hold, are es- \ sential, and speech alone is not prohibited. The trial judge dismissed the count of the information charging Zaimi and Kalantari with “congregating],” and uncontroverted evidence at their trial demonstrates that neither did more than make utterances. We do not reach the question whether Congress might validly proscribe conduct of the type in which Zaimi and his companion engaged. We say only that in Section 22-1115 Congress has not done so. The judgment of the District of Columbia Court of Appeals is reversed, and the case is remanded with instructions to dismiss the information against. Zaimi. So ordered. WILKEY, Circuit Judge (concurring) : I concur in the result reached and in Judge Robinson’s very scholarly and thorough opinion. The actions for which the appellant was charged and convicted simply were actions which were not intended to be prohibited by the language of the statute (D.C.Code, § 22-1115), which the legislative history, as of the 1937 date of enactment, makes clear, whatever the present or recent administrative understanding of the effect of the statute. The conviction therefore cannot be allowed to stand. The fact that the recent administrative interpretation of this statute has not been the same as that now promulgated by this court, plus the enactment of certain legislation in October 1972, obliges me to raise a caveat. It seems undeniable on the basis of Judge Robinson’s careful legislative history research that the correct interpretation of § 22-1115 is that the prohibited conduct necessarily involves the display of a flag, banner, placard, or device designed to accomplish the prohibited objectives. This is the construction set forth in our opinion (footnote 41), it is supported by the construction of the original bill introduced by the Senate Foreign Relations Committee and Senator Pittman’s substitute bill which ultimately became law, and by the dialogue between Senator Pittman and Senator La Follette, whose substitute bill (not adopted) would clearly have prohibited speech, gestures, or other acts to accomplish the objectives admittedly prohibited by § 22-1115. So much for the history at the time the statute was enacted. My caveat is that this interpretation of D.C.Code § 22-1115 does not square with the new 1972 Act for the Protection of Foreign Officials and Official Guests of the United States, quoted in pertinent part in footnote 120 of the court’s opinion. The court’s opinion comments, “That legislation pursues objectives not essentially variant from those underlying Section 22-1115, and provides for foreign emissaries in the states safeguards comparable to those afforded by Section 22-1115 and other statutes in the District.” (Footnote references omitted.) The 1972 Act for the Protection of Foreign Officials and Official Guests of the United States in its comparable provision (18 U.S.C. § 112(c) ) begins: “Whoever within the United States but outside the District of Columbia and within one hundred feet of any building or premises belonging to or used or occupied by a foreign government. . ” It then proceeds to prohibit among other things, “(1) parades, pickets, displays any flag, banner, sign, placard, or device, or utters any word, phrase, sound, or noise, for the purpose of intimidating, coercing, threatening, or harassing any foreign official. . ” It seems to me that when the last Congress in October 1972 enacted a statute which “pursues objectives not essentially variant from those underlying Section 22-1115,” but made that statute only applicable outside the District of Columbia, the Congress proceeded on the assumption that the existing statute in the District of Columbia provided the same protection for the foreign emissaries. If that assumption be true, then Congress apparently assumed that, not only was the displaying of any flag, banner, sign, placard, or device which would intimidate, coerce, threaten, or harass a foreign official prohibited, but likewise prohibited by the existing D.C. Code § 22-1115 under which appellant Zaimi was convicted, erroneously as we now hold, were also actions described as “or utters any word, phrase, sound, or noise” for the same purposes. If our opinion today is correct, then "Congress by the 1972 legislation "provided much more protection’ -against harassment and intimidation for foreign emissaries outside the capital of our coüntry than is now provided in Washington, D.C., itself. It is doubtful if Congress intended to do this. It appears that Congress in 1972 incorrectly assumed the interpretation of D.C.Code §-22-1115 as set forth in footnote 40 in pur opinion today, which would have, sustained the conviction of Zaimi. It is doubtful if Congress analyzed the D.C. statute as we do in footnote 41, which we hold correct and which is supported by the history of the enactment 'of that legislation in 1937. If my comparison of D.C.Code§ 22-1115 with the newly enacted Public Law. No. 92-539 (1972) (18 U.S.C. § 112(c)) is correct, and Congress did enact the latter under a misapprehension as to the limited coverage of D.C.Code § 22-4115, then Congress may make the protection of foreign emissaries in the nation’s' capital uniform with that afforded throughout the United States in one o£ several ways. Congress could repeal -flie limiting words “but outside the District of Columbia” of 18 U.S.C. § 112(c) and make-clear that the new statute is designed to displace D.C.Code § 22-11X5 as law in the District of Columbia ajsofq Or; Congress could enact appropriate portions of Public Law 92-539 as part of the D.C.Code and repeal the present D.C.Code § 22-1115. Lastly, if in fact Congress is satisfied to have differing degrees of protection afforded foreign official guests inside and outside the national capital, then it can do nothing and permit the U.S.Code and D.C.Code provisions to reflect those differing degrees of protection. . Zaimi v. United States, 261 A.2d 233 (D.C.App.1970). . Now the Superior Court of the District of Columbia. D.C.Code § 11-901 (Supp. V 1972). . See text infra at note 19. . “It shall be unlawful to display any flag, banner, placard, or device designed or adapted to intimidate, coerce, or bring into public odium any foreign government, party, or organization, or any officer or officers thereof, or to bring into public disrepute, political, social, or economic acts, views, or purposes of any foreign government, party, or organization, or to intimidate, coerce, harass, or bring into public disrepute any officer or officers or diplomatic or consular representatives of any foreign government, or to interfere with the free and safe pursuit of the duties of any diplomatic or consular representatives of any foreign government, within five hundred feet of any building or premises within the District of Columbia used or occupied by any foreign government or its representative or representatives as an embassy, legation, consulate, or for other official purposes, except by, and in accordance with, a permit issued by the superintendent of police of the said District; or to congregate within five hundred feet of any such building or premises, and refuse to disperse after having been ordered so to do by the police authorities of the said District.” D.C.Code § 22-1115 (1967). . A related contention is that so much of the information upon which Zaimi was tried as undertook to charge the offense for which he was convicted did not allege a violation of § 22-1115. . Zaimi and Kalantari are Iranian nationals then studying in the United States. Kalantari is not a party to this appeal. . Some few facts are in dispute, but none of the disputes affects our disposition in the least. . The record contains no translation or indication whatever as to what was said. It suggests, rather, that police officers nearby did not understand the message. . The banner was a piece of canvas, two feet by eight and one-half feet, upon which the words “Shah, Puppet of United States Imperialism” were printed iii lettering ranging from three and one-half to six inches in height. Uncontradicted evidence at Zaimi’s trial establishes that the banner was never unfolded by Zaimi or Kalantari and that, of course, it could not be read while folded. As Government counsel conceded at trial, neither Zaimi nor Kalantari was charged with displaying the banner. See text infra at notes 16-17. . The reference ostensibly was to § 22-1115. See note 4, supra. . At trial, Zaimi testified that he talked about the situation in Iran and the 600 million dollars [the Shah] came to borrow. . . . [I] said, well, that the arms that [the Shah] bought were going to be used to suppress the people of Iran, as he has done several times before. And I also asserted that it was his purpose also that the United States back up the Shah of Iran and pick up the burden of Iran in order to suppress the Iranian people. . See note 4, supra. . See note 4, supra. . Officer Carl W. Mattis, the Government’s sole witness, testified that Zaimi and Kalantari were told “[t]hat they were in violation of the law — that they would have to discontinue the shouting and move on.” See note 15, infra. . Officer Mattis testified that, at the time of the arrests, he stated to Zaimi “[t]hat they had been placed under arrest and charged with disorderly conduct.” No such charge eventuated, however, in the information upon which Zaimi was tried. See text infra at notes 16-17. . See note 125, infra. . See note 18, infra. . The dismissal was apparently predicated upon the court’s view that two people cannot “congregate” within the meaning of § 22-1115. See Kinoy v. District of Columbia, 130 U.S.App.D.C. 290, 298, 400 F.2d 761, 769 (1968); Hunter v. District of Columbia, 47 App.D.C. 406, 409 (1918). We intimate no view on that aspect of the case. . See note 4, supra. . But see Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971). Our disposition of Zaimi’s conviction renders unnecessary any consideration of the validity of the sentence. . Zaimi v. United States, supra note 1. . Pursuant to D.C.Code § 11-301 (1967). See District of Columbia Court Reorganization Act of 1970, Pub.L. No. 91-358, tit, I, §§ 146(a)(1), 199(b)(4), 84 Stat. 473, 565, 598 (1970). . D.C.Code § 22-1115 (1967). . See text supra at note 23. . See text supra at note 23. . See text supra at note 23. . See text supra at note 23. . See text supra at note 23. . See text supra at note 23. . See text supra at note 23. . See text supra at note 23. . See note 18, supra, and accompanying text. . See note 9, supra, and accompanying text. There was nothing in the evidence at Zaimi’s trial suggesting that he possessed any “flag, banner, placard, or device” other than the banner which the police officers took from him before it was displayed. . 69 App.D.C. 281, 100 F.2d 691 (1938), cert. denied, 306 U.S. 640, 59 S.Ct. 488, 83 L.Ed. 1040 (1939). . Id. at 282, 100 F.2d at 692. . Id. . Id. . In Frend, the court did encounter the contention that § 22-1115 confers an unbridled discretion as to the issuance of permits mentioned. Id. at 283, 284, 100 F.2d at 693, 694. The provision relating to the granting of permits was interpreted as an authorization to do so only in eases where use of the permit would not violate the statute. Id. at 284, 100 F.2d at 694. Thus construed, we rejected the claim of invalid delegation of authority to issue permits. Id. . See text supra at note 23. Compare United States v. Bass, 404 U.S. 336, 339, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). . So interpreted, Section 22-1115 would read: It shall be unlawful [1] to display any flag, banner, placard, or device designed or adapted [a] to intimidate, coerce, or bring into public odium any [i] foreign government, [ii] party, or [iii] organization, or [iv] any officer or officers thereof, or [2] to bring into public disrepute [a] political, social, or economic acts, views, or purposes of any [i] foreign government, [ii] party, or [iii] organization or [3] to intimidate, coerce, harass, or bring into public disrepute [a] any officer or officers or diplomatic or consular representatives of any foreign government, or [4] to interfere with the free and safe pursuit of the duties of [a] any diplomatic or consular representatives of any foreign government, within five hundred feet of any building or premises within the District of Columbia used or occupied by any foreign government or its representative or representatives as an embassy, legation, consulate, or for other official purposes, except by, and in accordance with, a permit issued by the superintendent of police of the said District; or [5] to congregate within five hundred feet of any such building or premises, and refuse to disperse after having been ordered so to do by the police authorities of the said District. . By this construction, Section 22-1115 would read: . E. g., Miller v. Udall, 115 U.S.App.D.C. 162, 165, 317 F.2d 573, 576 (1963). . 81 Cong.Rec. 7962 (1937). . S.J.Res.No.191, 75th Cong., 1st Sess. (1937). . Id. . 81 Cong.Rec. 7962 (1937). . S.Rep. No. 1072, 75th Cong., 1st Sess. 1 (1937). . See text supra at note 44. . See text supra at note 44. . See text supra at note 47. . 81 Cong.Rec. 8484 (1937). The Senator further explained: It will be observed that such parties or groups may go within 500 feet of an embassy with any banner or flag or device they wish, provided they have the permission of the chief of police. The reason for that is obvious. There might be a perfectly peaceful parade down the street past an embassy, having nothing to do whatever with the embassy or the ambassador or the country which he represents. On the other hand, the very purpose of the parade might be to criticize the ruler of some government or its ambassador or minister, in which case I personally believe it should not be permitted. As to congregating near an embassy, there is no punishment provided except and unless the parties refuse to disperse when so ordered. 81 Cong.Rec. 8484 (1937). . Id. at 8484, 8485. . Id. at 8485. . Id. at 8486. The inspector’s statement concentrated almost exclusively on picketing, frequently by large numbers of people, with accompanying banners and signs. Aside from one instance of chanting, it made no mention of vocal communications. . Id. . Id. at 8518-8519. . See note 78, infra. . Present D.C.Code § 22-1107 (1967). . Senator La Collette's substitute originally proposed to amend D.C.Code § 22-1107 (1967) in the respects denoted by the italicized language: Unlawful assembly; profanity, etc., in public places, etc. — It shall not be lawful for any person or persons within the District of Columbia to congregate and assemble in any street, avenue, alley, road, or highway, or in or around any public building or enclosure (including any building or . premises used or occupied by any foreign government or its representatives as am, embassy or for diplomatic or other official purposes), or any park or reservation, or at the entrance of any private building or enclosure, and engage in loud and boisterous talking or other disorderly conduct, or to insult (by use of banners, placards, or otherwise) or to make rude or obscene gestures or comments or observations on persons passing by, or in their hearing, or to crowd, obstruct, or incommode the free use of any such street, avenue, alley, road, highway, or any of the foot pavements thereof, or the free entrance into any public or private building or enclosure; it shall not be lawful for any person or persons to curse, swear, or make use of any profane language or indecent or obscene words, or engage in any disorderly conduct in any street, avenue, alley, road, highway, public park or enclosure, public building, church, or assembly room, or in any other public place, or in any place where from the same may be heard in any street, avenue, alley, road, highway, public park or enclosure, or other building, or in any premises other than those where the offense was committed, under a penalty of not more than $25 for each and every offense. 81 Cong.Rec. 8519 (1937). . See note 59, supra. . Near the onset of debate following introduction of his amendment, Senator Pittman stated: What the joint resolution seeks to do is to protect these sanctuaries and the diplomats and their families within them. It has no other purpose. I seek not to protect its occupants so much from insult as to provide for their safety, te protect against the arousing of the hatred of a people because of mistreatment of the representatives of their government, to protect them in the free and safe use and enjoyment of their sanctuaries. Mr. President, we have reports from the police department as to a number of incidents that have occurred here during the past year or so in front of various embassies. Not only do such incidents amount to discourtesy, not only is it what amounts to a refusal to protect and maintain the inviolability of the homes of ministers and ambassadors and their families, but it evidences a failure to protect their safety, when demonstrations in any form are allowed to be made before a legation or an embassy which are likely to incite mob violence. I do not believe that the people themselves who display the banners and placards have in their hearts the intention of doing injury or damage. What is the result of such display and such demonstration? Do Senators think the wife of the ambassador or the children of the ambassador in the building know the intent of the people who are marching up and down in front of the building, with all kinds of devices which display inscriptions that are critical of the ambassador or his country or which tend to bring into odium or disrepute their country or their ambassadors? Do Senators think the wife and the children know what the people who are on the outside are going to do? No. They are in their home in fear and trembling. As a matter of fact, I think we can prove, if it shall be necessary, that some foreign representatives have found it necessary to move their families away from their official homes during such periods of picketing. Id. at 8587. . The debate is replete with such references by nearly all of the participants. Id. at 8586-8593, passim. . There were two or three remarks which in isolation might be taken as hinting that perhaps a violation might occur without display of a placard or the like. See 81 Cong.Rec. 8589 (remarks of Senator Pittman), 8592 (remarks of Senator Barkley). By our appraisal, when read in context they do not, and in any event we would deem such vague allusions valueless. What for us is far more significant is the total absence during the lengthy debate of any statement plainly signifying either a purpose to so extend the interdiction or an understanding that the interdiction would be so broad. Compare United States v. Bass, supra note 39, 404 U.S. at 345-346, 92 S.Ct. 515. . See note 59, supra. . See note 59, supra. As Senator Da Follette emphasized during debate, “[ujnder the amendment which I have offered they would be prevented from insulting anyone by word of mouth or by use of a banner, placard, device, or otherwise.” 81 Cong.Rec. 8589 (1937). . 81 Cong.Rec. 8587 (1937). . Id. at 8587-8588. . Id. at 8588. . Id. . Id. . Id. at 8589. . Senator Pittman, during one of his retorts to Senator La Follette, denied that enforcement of the District’s unlawful assembly law, D.C.Code § 22-1107 (1967), would achieve the goal of His amendment: But in some cases there has been no great assemblage. There were only five or six persons. They were not interfering with the traffic of the street. They were not using any language at all, but they carried placards which were critical of the governments represented by the embassies. Back and forward they walked, all day long. That is not illegal under any law of which I know. I am trying to have it made illegal, provided such devices and banners carry upon them a reflection on the government represented by the ambassador, and if they bring that government into odium, no matter whether or not there is now a law against it. It is not illegal picketing in any sense of the word, but it is calculated to frighten those within the building. It has frightened them, and such things should not be permitted. I do not believe we should allow the picketing of a foreign ambassador or a foreign minister or any picketing so close to him that it will cause fright. Id. at 8592. . Id. . Id. . Id. (emphasis supplied). . See text supra at note 23, and notes 40, 41, supra. . 81 Cong.Rec. 8593 (1937). . The proviso was advanced by Senator La Follette and was accepted by Senator Pittman without objection. It read : Provided, however, That nothing contained in this joint resolution shall be construed to prohibit picketing, as a result of bona-fide labor disputes regarding the alteration, repair, or construction of either buildings or premises occupied, for business purposes, wholly or in part, by representatives of foreign governments. Id. (emphasis in original). . Id. . See id. at 8728 (joint resolution — the Pittman substitute — referred by House to its Committee on Foreign Affairs) ; id. at 8792 (reported by Committee on Foreign Affairs without amendment) ; 83 Cong.Rec. 1575 (1938) (passed by House); id. at 1678 (signed by Speaker of House) ; id. at 1681 (signed by Vice President) ; id. at 1746 (approved by President Roosevelt). . See note 63, supra, and accompanying text. . Zaimi simply adopts the Government’s arguments in this regard. . See text supra at note 23 and notes 30-31, 40-41, supra. . See text supra at note 25. . The words “officer or officers” in the first prohibition, unlike those of the third, refer to officers, not only of “foreign government,” but also those of “foreign . part[ies], or organization[s].” See text supra at note 23. So, while the two provisions do extend their protection to some of the same people, the first also embraces groups not touched by the third. Compare United States v. Bass, supra note 39, 404 U.S. at 342, 92 S.Ct. 515. . If, as the Government contends, the third prohibition covered the entire spectrum of communication, it is obvious that the first prohibition would add nothing to the statute. . United States v. Bass, supra note 39, 404 U.S. at 344, 92 S.Ct. 515. . The first prohibition runs against bringing “into public odium any foreign government, party, or organization,” and the second against bringing “into public disrepute political, social, or economic acts, views, or purposes of any foreign government, party, or organization.” See text supra at note 23. The one protects the “foreign government, party, or organization” itself, and is complemented by the other’s protection of their “political, social, or economic acts, views, [and] purposes.” Compare United States v. Bass, supra note 39, 404 U.S. at 342-343, 92 S.Ct. 515. . The Government says the legislative debates reveal a central purpose to guarantee diplomatic personnel ingress and egress without hindrance, and that the fourth prohibition — a ban on “interfering] with the free and safe pursuit of the duties of any diplomatic or consular representative of any foreign government,” see text supra at note 23 — cannot achieve this unarticulated xmrpose without inclusion of utterances within the activities it forbids. It seems to us more likely that if the statute emanated from a purpose of that magnitude, somebody would have said so. The Government also says that since the five hundred-foot limitation and the permit requirement appear as modifying clauses after the first four prohibitions, the fact that the “display” requirement does not also apXJear there shows that the latter was not intended to apply to all o^ the prohibitions. We think this circu ’’tance indicates little one way or the oth>. . See Parts II, III, supra. . This colloquy centered on the sufficiency of Senator La Follette’s amendment to achieve Senator Pittman’s objectives. See text supra at notes 64-71. Although Senator Pittman several times referred to picketing with banners and placards, not once during this colloquy did he mention communication merely by speech. See text supra at notes 64-71. . See note 63, supra. . United States v. Bass, supra note 39, 404 U.S. at 348, 92 S.Ct. 515, quoting United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 61 L.Ed. 857 (1917). . United States v. Campos-Serrano, 404 U.S. 293, 297, 92 S.Ct. 471, 30 L.Ed.2d 457 (1971); United States v. Boston & M. R. R., 380 U.S. 157, 160, 85 S.Ct. 868, 13 L.Ed.2d 728 (1965); Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 3 L. Ed.2d 1041 (1959); FCC v. American Broadcasting Co., 347 U.S. 284, 296, 74 S.Ct. 593, 98 L.Ed. 699 (1954); United States v. Resnick, 299 U.S. 207, 209, 57 S.Ct. 126, 81 L.Ed. 127 (1936); Copper Plumbing & Heating Co. v. Campbell, 110 U.S.App.D.C. 177, 180-181, 290 F.2d 368, 371-372 (1961). . Ricks v. District of Columbia, 134 U.S. App.D.C. 201, 204, 414 F.2d 1097, 1100 (1968). This consideration not only underpins the canon of strict construction of criminal statutes but it also has achieved constitutional status on its own. As we stated in Ricks: That precept, virtually from the birth of the Nation, has occupied a position of honor in the scheme of constitutional values, and for justifications of the highest order. Fluid language which sweeps citizens under the penumbra of penal legislation without warning is abhorrent. The 'imposition of criminal liability for behavior which a person could not reasonably understand to be prohibited offends the most rudimentary considerations of fairness. “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” Thus “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Id. at 204-205, 414 F.2d at 1100-1101, quoting, in turn Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 2d 888 (1939), and Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926) (remainder of footnotes omitted). See also Grayned v. City of Rockford, 408 U.S. 104, 106-121, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). . E. g., United States v. Bass, supra note 39, 404 U.S. at 348, 92 S.Ct. 515; United States v. Boston & M. R. R., supra note 94, 380 U.S. at 160, 85 S.Ct. 868. . United States v. Boston & M. R. R., supra note 94, 380 U.S. at 160, 85 S.Ct. at 870. As the Supreme Court there stated, “[s]uch are the teachings of our cases from United States v. Wiltberger, 5 Wheat. 76 [5 L.Ed. 37], down to this day. Chief Justice John Marshall said in that case: ‘The rule that penal laws are to be construed strictly, is, perhaps, not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals ; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.’ Id., p. 95. ” See also cases cited supra note 95. . United States v. Noveck, 271 U.S. 201, 204, 46 S.Ct. 476, 477, 70 L.Ed. 904 (1926). . Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955). See also United States v. Bass, supra note 39, 404 U.S. at 347, 92 S.Ct. 515; Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971). . See, e. g., Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 684-685, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968); N.A.A.C.P. v. Button, 371 U.S. 415, 423-433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). . United States v. Campos-Serrano, supra note 94, 404 U.S. at 297, 92 S.Ct. at 474, quoting Keppel v. Tiffin Savs. Bank, 197 U.S. 356, 362, 25 S.Ct. 443, 49 L Ed. 790 (1905). . United States v. Resnick, supra note 94, 299 U.S. at 209-210, 57 S.Ct. 126. See also Pierce v. United States, 314 U.S. 306, 311-312, 62 S.Ct. 237, 86 L.Ed. 226 (1941). . United States v. Resnick, supra note 94, 299 U.S. at 209, 57 S.Ct. at 127. . Id. at 210, 57 S.Ct. at 127. See also Nelson v. United States, 109 U.S.App. D.C. 392, 395, 288 F.2d 376, 379 (1961). . See Part II, supra. . See Part III, supra. . United States v. Boston & M. R. R., supra note 94, 380 U.S. at 160, 85 S.Ct. at 870. See also United States v. Williams, 341 U.S. 70, 81, 71 S.Ct. 581, 95 L. Ed. 758 (1951); United States v. Weitzel, 246 U.S. 533, 542, 38 S.Ct. 381, 62 L.Ed. 872 (1918). . United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221-222 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952). See also Toussie v. United States, 397 U.S. 112, 122, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970); Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958). . Pierce v. United States, supra note 102, 314 U.S. at 311, 62 S.Ct. at 239. See also Kraus & Bros., Inc. v. United States, 327 U.S. 614, 621-622, 66 S.Ct. 705, 90 L.Ed. 894 (1946); Ricks v. District of Columbia, supra note 95, 134 U.S.App. D.C. at 204-206, 414 F.2d at 1100-1102. . See notes 40-41, supra, and accompanying text. . United States v. Universal C. I. T. Credit Corp., supra note 108, 344 U.S. at 221-222, 73 S.Ct. at 229. See also United States v. Bass, supra note 39, 404 U.S. at 347, 92 S.Ct. 515; United States v. Campos-Serrano, supra note 94, 404 U.S. at 297, 92 S.Ct. 471; Toussie v. United States, supra note 108, 397 U.S. at 123, 90 S.Ct. 858; Ladner v. United States, supra note 108, 358 U.S. at 177-178, 79 S.Ct. 209. . Quoting McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931), and citing United States v. Cardiff, 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200 (1952). . Quoting H. Friendly, Mr. Justice Frankfurter and the Reading of Statutes in Benchmarks, 196, 209 (1967). . United States v. Bass, supra note 39, 404 U.S. at 348, 92 S.Ct. at 522. . See text supra at notes 64-72, and note 59, supra. . See text supra at note 25. . Pub.L. No. 92-539, 86 Stat. 1070 (1972). . “The Congress finds . . . that harassment, intimidation, obstruction, coercion, and acts of violence committed against foreign officials, or family members in the United States or against official guests of the United States adversely affect the foreign relations of the United States.” Act for the Protection of Foreign Officials and Official Guests of the United States, Pub.L. No. 92-539, § 2, 86 Stat. 1070-1071 (1972). See also Part III, infra. . “[T]his legislation is intended to afford the United States jurisdiction concurrent with that of the several States to proceed against those who by such acts interfere with its conduct of foreign affairs.” Act for the Protection of Foreign Officials and Official Guests of the United States, Pub.L. No. 92-539, § 2, 86 Stat. 1070, 1071 (1972). . Section 301(c) of the Act, 18 U.S.C. § 112(c) (Supp. _ 19_), provides: Whoever within the United States but outside the District of Columbia and within one hundred feet of any building or premises belonging to or used or occupied by a foreign government or by a foreign official for diplomatic or consular purposes, or as a mission to an international organization, or as a residence of a foreign official, or belonging to or used or occupied by an international organization for official business or residential purposes, publicly— (1) parades, pickets, displays any flag, banner, sign, placard, or device, or utters any word, phrase, sound, or noise, for the purpose of intimidating, coercing, threatening, or harassing any foreign official or obstructing him in the performance of his duties, or (2) congregates with two or more other persons with the intent to perform any of the aforesaid acts or to violate subsection (a) or (b) of this section, shall be fined not more than $500, or imprisoned not more than six months, or both. Section 301(e), 18 U.S.C. § 112(e) (Supp. II 1972), however, limits the foregoing: Nothing contained in this section shall be construed or applied so as to abridge the exercise of rights, guaranteed under the first amendment of the Constitution of the United States. . See 118 Cong.Rec.H 7233-39 (daily ed. Aug. 7, 1972), S 15118-27 (daily ed. Sept. 18, 1972). See also the committee reports: S.Rep.No.1105, 92nd Cong., 2d Sess. at 18-19 (1972); H.R.Rep.No. 1268, 92nd Cong., 2d Sess. at 6-10, 16-18 (1972). . See text swpra at note 24. . See note 41, supra. . See note 18, supra, and accompanying text. . See text supra at notes 8-10. AVe note, too, that the information did not charge the display of the banner which Zaimi at one time had. See text supra at notes 16-17 and note 9, supra. . Constitutional issues will not be addressed where adjudication of a nonconstitutional issue adequately disposes of the case. United States v. Thirty-Seven Photographs, 402 U.S. 363, 374, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971); Clay v. Sun Ins. Office, 363 U.S. 207, 209-211, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960); Communist Party v. Subversive Activities Control Bd., 351 U.S. 115, 122, 76 S.Ct. 663, 100 L.Ed. 1003 (1956); Neese v. Southern Ry. Co., 350 U.S. 77, 78, 76 S.Ct. 131, 100 L.Ed. 60 (1955); Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 136-137, 67 S.Ct. 231, 91 L.Ed. 128 (1946). . Public Law No. 92-539, 86 Stat. 1070 (1972). 18 U.S.C. § 112(c). . The legislative history of 18 U.S.C. § 112(c) strongly supports this analysis. In a report accompanying a predecessor bill that contained language identical to the bill that eventually became Section 112(c), the House Committee on the Judiciary made the following statement: [Section 112(c)] is not made applicable to the District of Columbia because a District law of long standing affords similar protection to foreign officials in the Nation’s Capital. See D.C.Code, Section 22-1115, supra. H.R.Rep. No. 1202, 92nd Cong., 2d Sess. 20 (1972). An even more significant statement was made in the Committee Report that accompanied the House Bill that eventually was enacted, with minor amendments, into law: The purpose of subsection 112(c) is to protect the peace, dignity and security of foreign officials when they are at their place of work. This provision would not apply to the District of Columbia because the District law already affords even more extensive protection to foreign officials in the Nation’s Capital. (D.C.Code § 22-1115) While the District law has a “500-foot rule,” the narrower radius has been adopted for the more general provision of this bill in order to minimize interference with the freedom on ingress and egress of individuals in the vicinity of foreign government offices in congested metropolitan areas. H.R.Rep. No. 1268, 92d Cong., 2d Sess. 9 (1972) (emphasis added). In a similar vein the Report of the Senate Committee on the Judiciary said the following: The provisions of subsection (c) are not made applicable to the District of Columbia because a District law of long standing affords similar protection to foreign officials in the Nation’s Capital. (Section 22-1115, D.C.Code.) S.Rep. No. 1105, 92d Cong., 2d Sess. 19 (1972). . The State Department likewise appoared to equate the 1972 national legislation with that already applying in the District of Columbia. In commenting on). Public Law 92-539 after it had passed the House, in August 1972 the State Department. Bureau of Public Affairs, in its publication “Foreign Policy Outlines,” re’/.. “Protection of Foreign Diplomats” said' .Protection for missions: Diplomatic 'missions in Washington are given a ."statutory protection (under D.C. law) which prevents demonstrations within 500--feet of their respective establish-' pents, and are provided with a special Federal protection service along with local, police protection. Similar protective measures for foreign missions outside Washington are incorporated in the current legislation. The anti-picketing ban is extended by the new legislation to diplomatic establishments in New York and elsewhere in the U.S., when the picketing is for the purpose of intimidating, coercing, or harassing any foreign official or obstructing him in the performance of his duties. Also, the radius provided in the new legislation for diplomatic missions outside Washington is reduced to 100 feet in the interest of allowing public access to buildings adjacent to missions in the more congested areas.

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Ethel L. WATTS, as Aunt and next friend for Patricia Sumlin and John T. Sumlin, minors, et al., Appellants, v. John G. VENEMAN, Acting Secretary of Health, Education and Welfare. No. 72-1260. United States Court of Appeals, District of Columbia Circuit. Feb. 12, 1973. Byron K. Welch and Rosalyn B. Bell, Washington, D. C., were on the brief for appellants. Harold H. Titus, Jr., U. S. Atty., Kathryn H. Baldwin and William Kanter, Attys., Department of Justice, were on the brief for appellee. Before McGOWAN, TAMM and WILKEY, Circuit Judges. PER CURIAM: In this action two distinct groups of illegitimate children seek Social Security benefits allegedly due them as the children of a deceased fully insured wage earner. • The children of deceased wagé‘eai*ríer ‘ Jones (the Marlowe claimants), although illegitimate, had been recognized by Jones, were living with Jones at the time of his death, and were dependent* upon Jones for their support. -It was agreed by all parties that these children were eligible to receive payments under the applicable Social Security laws. - The amount'of these payments was reduced to zero, however, because decedent Jones died with two legitimate children in' addition to the illegitimate children . who are represented in this suit. The, law provides that when a wage earner., dies with both legitimate and illegitimate-children, the payments due the legitimate children shall be paid first; if the payments due the legitimate children consume all of the amount payable to the dependents of the deceased, the illegitimate children receive nothing. Thus, although both the legitimate and the illegitimate children were dependents of the deceased and although the illegitimates could have received benefits had there been no legitimate children, the illegitimate children of deceased wage earner Jones received nothing. The illegitimate children of Jones protest and claim that due process requires that the Social Security payments be apportioned equally among the children of Jones regardless of their status. The position of the children of the deceased wage earner Sumlin (the Watts claimants) is substantially different from that of the Jones children. Sumlin had never acknowledged his children, was not supporting them, and was not at the time of his death living with his children. The children of Sumlin were denied benefits not because of any precedence granted legitimate children (on the record before us it does not appear that there were any other children), but because they did not fulfill the statutory requirements necessary to qualify as dependents. Under these requirements an illegitimate child could receive benefits if (1) the father had recognized, either in writing or pursuant to court order, his alleged children; (2) the father had been ordered by a court to contribute to the children’s support; (3) the children .were living with or receiving support from the father at the time of the father’s death; or (4) if under the intestacy laws of the wage earner’s domicile •the illegitimate children could inherit property. The Sumlin children do not contend that they qualify under the first three methods described above; they also do not contest the validity of these requirements. Rather, they attempt to obtain benefits under the provision that permits payments if the intestacy laws of the decedent’s domicile allow illegitimates to inherit from their father. It is quite clear from a reading of the intes- . tacy laws of the District of Columbia that illegitimates in the position of the Sumlin children may not inherit. The Sumlin children, therefore, attack the constitutionality of the District of Columbia intestacy laws, claiming that it violates due process for the statutory scheme to permit legitimate children to inherit while denying this privilege to similarly situated illegitimates. On cross motions for summary judgment, the trial court granted the Government’s motion and held that neither group of children was entitled to relief. For the reasons stated below, we reverse as to the children of decedent Jones and affirm as to the children of decedent Sumlin. I. The Children of Decedent Jones The Supreme Court’s summary affirmance of the lower court decisions in Richardson v. Griffin and Richardson v. Davis established the right of the children of decedent Jones (the Marlowe claimants) to receive the Social Security payments they seek. The judgment in Richardson v. Griffin granted relief to an entire class of illegitimate children, of which the children of decedent Jones are a part. We are assured by the Government that these children are or soon will be receiving such payments. Since Griffin establishes the right of the children of Jones to recover what they seek here, that decision is res judicata of this matter; neither this court nor the court below can grant any further relief. We, therefore, reverse the judgment of the trial court as to the children of decedent Jones and remand the case with a direction that the trial court dismiss that portion of the action on the basis of the res judicata effect of Richardson v. Griffin, supra. II. The Children of Decedent Sumlin The Griffin and Davis cases mentioned above has no application to the children of decedent Sumlin (the Watts claimants). For the reasons given below, we are persuaded that the trial court was correct in denying the Sumlin children the relief they requested. To the extent that appellants contend that the District of Columbia intestate succession statute is unconstitutional because it does not permit illegitimates to inherit as freely as legitimates, their argument must fail. The Supreme Court in Labine v. Vincent recently affirmed the constitutionality of an intestacy statute which discriminated against illegitimate children in a manner similar to that of the District of Columbia scheme. In that decision the Court declined to extend the holdings of two earlier decisions that had imposed limitations on the distinctions a state might draw between legitimate and illegitimate children: Levy did not say and cannot fairly be read to say that a State can never treat an illegitimate child differently from legitimate offspring. The Court continued by noting that traditionally states have been permitted to make policy judgments in the area of inter-family relations: But the power to make rules to establish, protect, and strengthen family life as well as to regulate the disposition of property left in Louisiana by a man dying there is committed by the Constitution of the United States and the people of Louisiana to the legislature of that State. Absent a specific constitutional guarantee, it is for that legislature, not the life-tenured judges of this Court, to select, from among possible laws. Further, we see no problem with the incorporation of the District of Columbia intestacy laws into the Social Security laws for purposes of determining the eligibility for payments to illegitimates. In considering this incorporation, it is vital that one bear in mind the purpose in making Social Security payments to dependent minors and the nature of such payments. The entire thrust of the Social Security laws relevant to dependents is to "provide benefits to those who were . most likely to have relied upon the deceased for their support. In light of this overriding purpose, it is well-established that Social Security benefits are not -accrued property rights. One’s ability to receive benefits is not dependent solely upon the biological relationship between the decedent and his children, but also upon the probability that the children were dependent for support upon the deceased. Congress in enacting the Social Security laws made various judgments about the probability that children are dependent. For example, it seems more logical that illegitimates would be dependent' upon their father if he has recognized them, or if in fact he is contributing" to their support. The incorporation of a state’s intestacy laws for purposes of determining eligibility is in furtherance of this scheme. If an illegitimate child may not inherit, then the child’s support following the father’s death is less likely, to be dependent upon what was receivéd upon the deceased’s death than if the child could receive property following the wage earner’s demise. It must be remembered that the Social Security laws do not exclude all illegitimates from eligibility for payments. In this case, for example, the children of decedent Jones were and are fully eligible for support. Rather, the laws are reasonably designed to disqualify a class of illegitimates who are less likely, as a class, to possess the requisite biological or legal relationship to or economic dependency on the wage earner. III. Conclusion For the reason given above, the judgment as to the children of decedent Jones is reversed and the case remanded with a direction that the cause be dismissed. With regard to the children of decedent Sumlin, the action of the trial court is affirmed. So ordered. . This eligibility was based on the provisions of 42 U.S.C. § 416(h)(3) (1970). . 42 U.S.C. § 403(a) (1970). . Provision for these first three methods of qualification may be found in 42 U.S.C§ 416(h) (3) (C) (1970). The final metod of qualification is found in 42 U.S.C. § 416(h)(2)(A) (1970). . District of Columbia law provides that “the illegitimate children of a female . . are capable to take real and personal estate by inheritance from their mother ... in like manner as if born in lawful wedlock.” 19 D.C.Code § 316 (1967). The purpose of this provision was to remove the common law disability of inheritance through the maternal line. Southern R. Co. v. Hawkins, 35 App.D.C. 313, 21 Ann.Cas. 926 (1910). The existence of this special exemption for maternal inheritance indicates that the common law disability was intended to remain for paternal inheritance. . Watts v. Veneman, 334 F.Supp. 482 (D.D.C.1971). . 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 (1972). . 409 U.S. 1069, 93 S.Ct. 678, 34 L.Ed.2d 659 (1972). . Duke Power Co. v. Greenwood County, 299 U.S. 259, 267, 57 S.Ct. 202, 81 L.Ed. 178 (1936). . 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971). . Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968). . Labine v. Vincent, supra, 401 U.S. at 536, 91 S.Ct. at 1019. . Id. at 538, 91 S.Ct. at 1021. . S.Rep.No.404, 89th Cong., 1st Sess. 101 (1965), U.S.Code Cong. & Admin.News 1965, p. 1943. . Flemming v. Nestor, 363 U.S. 603, 610-611, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960).

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UNITED STATES of America v. George E. JONES, Appellant. No. 72-1867. United States Court of Appeals, District of Columbia Circuit. Argued April 25, 1973. Decided May 14, 1973. Rehearing Denied July 10, 1973. Lawrence Speiser, Washington, D. C., for appellant. Richard L. Beizer, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Roger M. Adelman, Asst. U. S. Attys., were on the brief for appellee. Joseph F. McSorley, Asst. U. S. Atty., also entered an appearance for appellee. Before WILBUR K. MILLER, Senior Circuit Judge, and TAMM and ROBB, Circuit Judges. PER CURIAM: Appellant was convicted by a. jury of unlawfully distributing heroin. 21 U.S. C. § 841(a) (1970). The only issue meriting discussion involves the admission, over defense counsel’s objection, of certain testimony relating to a .Similar transaction for which appellant was never tried. Finding no abuse of discretion, we affirm. I As a result of two alleged narcotic transactions appellant was arrested pursuant to a warrant on October 14 and indicted on December 17, 1971, for separate violations of 21 U.S.C. § 841(a) (1970) allegedly occurring “on or about June 10 and June 19, 1971. Prior to trial, the government discovered that the June 10 date was in error. A superseding-indictment charging appellant with the same violations, but on June'9 and June 19, was subsequently returned.-air. though appellant was not apprised of the change until late March of the following year. Before trial began in April of' 1972. defense counsel successfully moved for dismissal of the charges concerning the June 9 transaction on the grounds that, appellant was now seriously prejudiced in his attempt to reconstruct the. events of that day coupled with the unjustified and unexplained neglect of the government. The prosecuting attorney immediately disclosed his intention to introduce evidence concerning the earlier transaction for the limited purposes of establishing identity and “that this defendant sells narcotics out of his house,” a proposal which was sustained over objection by defense counsel. II The government’s case-in-chief comsisted primarily of the testimony of Officer Price, as buttressed by supporting personnel of the narcotics division. Price served as an undercover narcotics agent during much of 1971, and it was in this capacity that he came to know appellant. He testified to two purchases from appellant. First, on the afternoon of June 19, he encountered a sometime acquaintance, James Bealle, on the street. A brief conversation ensued, during which Price probed Bealle about acquiring narcotics. Bealle led him to appellant’s home where Price and appellant engaged in a brief conversation concerning narcotics, culminating in a sale by appellant to Price. Price testified that after departing he returned home, field tested the drugs and received a positive reaction, placed them in an envelope labeled with the time of the transaction and its location, and recorded a description of appellant. The envelope was subsequently turned over to his superior for further testing and preservation pending charges. The prosecutor then asked Price: Now, was June 19, 1971, the first time that you had ever seen this defendant ? To this and following questions Price responded that he met Bealle early in the evening of June 9 and, upon making a similar inquiry concerning narcotics, was taken by car to the home of appellant. They were introduced and a nearly identical transaction transpired between Price and appellant. Price further testified that the substance which changed hands was positively identified as heroin and that it was subsequently labeled and processed by the police in a manner similar to that recounted earlier. Immediately after the testimony concerning the events of June 9 the trial judge instructed the jury, in a manner previously agreed to by both counsel, as to the limited purpose for which the evidence was introduced: Ladies and gentlemen of the jury, evidence has been introduced that the defendant committed an offense similar in nature to the one for which he is now on trial. This evidence was admitted solely for your consideration of whether it tends to show the identity of the defendant as the person who committed the offense with which he is charged, and whether or not it tends to show that the defendant had a scheme or design to commit crimes of the sort with which he is now charged. You are not required to so consider this evidence, and whether you do so or not is a matter within your exclusive province. You may not consider it as tending to show in any other respect the defendant’s guilt of the offense with which he is charged. This instruction was repeated at the conclusion of trial. Ill We begin with the general proposition that evidence of prior criminal conduct is inadmissible, where character is not in issue, to prove disposition to commit crime from which the jury may infer that defendant committed the crime charged. Since such evidence is frequently relevant, the doctrine is rooted not in considerations of probative value but in collateral considerations of the confusion it may engender, the undue influence it may have on the jury, perhaps for the wrong reasons, and the unfairness occasioned by forcing an individual to prepare a defense which might necessarily encompqss a substantial part of his life. Here, however, the government argues that the testimony was relevant to show identity and common plan. We agree that the bulk of the testimony regarding the June 9 transaction was clearly admissible to establish identity, particularly in light of appellant’s defense — a denial that the June 19 meeting occurred. The difficult problem is presented by testimony indicating that narcotics passed hands on June 9, evidence which is less clearly relevant to identity. We need not press the identity question further, however, since the additional evidence is admissible to establish a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other. United States v. Fench, 152 U.S. App.D.C. 325, 470 F.2d 1234, 1240 (1972). The government was entitled to argue that the transaction of June 9 was a prelude which logically and naturally led to the transaction of June 19. We are presented with nearly identical transactions occurring within an eleven day span: both occurred in the home of appellant; both involved the sale of small quantities of the drug heroin; both were initiated through the same “contact”, Bealle, and were consummated at the same unit price in his presence; and both occurred in the late afternoon or early evening. See United States v. Jones, 438 F.2d 461, 466 (7th Cir. 1971). The June 9 sale was highly relevant in this sense, a conclusion enhanced by appellant’s denial that he sold narcotics to officer Price on June 9, that he even saw Price on June 19, and, indeed, that he ever had any relationship with narcotics traffic. * Equally important, the policies which militate against admission of unquestionably relevant evidence and which underlie the rule concerning criminal character evidence are only marginally active. The transactions occurred in close proximity to each other and within ten months of trial. In addition to himself, appellant was able to present two witnesses to the June 9 rendezvous. He thus had little ground to argue that the “unfair surprise” occasioned by the June 9 testimony undermined his efforts to rebut. The two transactions were simple and easily separable, thus creating little risk of confusion. Finally, the potential prejudice to defendant was no more than that which inheres whenever similar evidence is adduced. The possibility of abuse implicit in such evidence is clearly recognized and the recognition is manifested by the discretion vested in the trial judge to exclude it where the possible prejudice may outweigh the probative value. United States v. Fench, supra, 470 F.2d at 1240. The possibility alone is not sufficient to generally exclude all such evidence particularly where, as here, the safeguard of full instructions as to the limited purpose of the evidence is available and the instructions are given. The problem is sufficient, however, for us to note that the prosecution would be wise to preserve such evidence for rebuttal, after the defense case has been sharpened and the judge may therefore more accurately consider the degree of relevancy and the potential for abuse. See United States v. Crawford, 438 F.2d 441, 448 (8th Cir. 1971) and United States v. Adams, 385 F.2d 548, 551 (2d Cir. 1967). Having considered this and other issues presented on appeal, we conclude that the discretion vested in the trial judge was not abused. Affirmed. . But see Robinson v. United States, 148 U.S.App.D.C. 58, 459 F.2d 847, 855-858 (1972), where this court examined the relevancy of nearly identical evidence to establishing identity alone: To jurors, no less than to judges, the reliability of an eyewitness identification is apt to increase as the opportunities for observation of the subject and mental retention of his image are broadened, and as the reasons for close scrutiny and accurate recollection become more special. A witness who ventures an identification of a party simply on the basis of one encounter may well be believed, but the identification bids fair to command greater respect when accompanied by a showing that the witness encountered the party on other occasions, and that he had an important reason for studying and remembering his distinctive features. (Footnotes omitted.) . See also Proposed Fed.R. Evidence 404, H.R.Doc. No. 93-46, 93d Cong., 1st Sess. 7 (1973). . We are similarly unconvinced that' dismissal of the June 9 charge because of the delay between commission of the act and correctly indicting appellant should necessarily have resulted in exclusion of all evidence relating to that event since different considerations inure in each decision. Whether a charge should be dismissed is a decision reached after considering the reasonableness of the delay and the resulting harm. Robinson v. United States, 148 U.S.App.D.C. 58, 459 F.2d 847, 851 (1972). Since no excuse was tendered for the mistake, which resulted in more than three additional months of delay in terms of appellant being apprised of the charges against him, the trial judge may well have felt that little or no consideration need be devoted to whether appellant was prejudiced. In deciding whether to admit the evidence for limited purposes, on the other hand, potential prejudice became a key consideration and the trial judge concluded that it would be minimal, particularly where limiting instructions were immediately given. . While considering the role potential for abuse should play in determining whether to admit evidence relevant for some other purpose but inadmissible if offered to show bad character, one noted commentator makes the following observations : [A]n exception [to admissibility] as is here suggested would handicap the State in its prosecution of the man of cumulative criminal daring. The greater the criminal brought to bar, the more closely the traces of his crimes were involved in other misdeeds, the more stupendous his scheme of crime culminating in the act charged, so much the more safe and invulnerable would he have rendered himself, if the law were made thereby to lose this evidential material. By every spot of blood with which he taints the steps of his criminal progress, he succeeds in increasing the safety of his new crimes. . . . “No man,” in the neat phrase of Mr. Justice Brewer, “can by multiplying crimes diminish the volume of testimony against him.” 1 J. Wigmore, Evidence 712 (3d ed. 1940).

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UNITED STATES of America v. Clinton L. PHILLIPS, Appellant. No. 72-1859. United States Court of Appeals, District of Columbia Circuit. Argued April 23, 1973. Decided May 16, 1973. Dorothy R. Burakreis, with whom Heathcote W. Wales, Sherman L. Cohn and Linda Blumenfeld * (all appointed by this court), were on the brief, for appellant. Richard S. Vermeire, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry and Kenneth Michael Robinson, Asst. U. S. Attys., were on the brief, for appellee. Before WRIGHT and TAMM, Circuit Judges, and DAVIES, Senior District Judge. Student counsel appointed pursuant to Rule 20 of tlie General Rules of this court. Of the United States District Court for the District of North Dakota, sitting by designation pursuant to 28 U.S.C. § 294 (d) (1970). PER CURIAM. The appellant, charged in a two-count indictment with second degree murder, a violation of 22 D.C.Code § 2403 (1967), and with carrying a dangerous weapon without a license, a violation of 22 D.C. Code § 3204 (1967), appeals from his conviction of the latter crime. We reach only appellant’s contention that the prosecutor’s improper closing and rebuttal arguments were so highly prejudicial as to require reversal. On no fewer than three occasions, once during closing and twice during rebuttal, the prosecutor sought to draw an analogy between the crime charged against appellant and those involving Sirhan Sirhan, James Earl Ray, [Richard] Speck and Jack Ruby. “While such an argument is always to be condemned as ‘an appeal wholly irrelevant to any facts or issues in the case,’ Viereck v. United States, 318 U. S. 236, 247, 63 S.Ct. 561, 566, 87 L. Ed. 734 (1943), and as a dereliction of the prosecutor’s high duty to prosecute fairly, see Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), in the context of current events, raising the spectre of [heinous crimes] . . . was an especially flagrant and reprehensible appeal to passion and prejudice. Although the prosecutor ‘may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.’ Berger v. United States, supra, 295 U.S. at 88, 55 S.Ct. at 633; Viereck v. United States, supra, 318 U.S. at 248, 63 S.Ct. at 567.” Brown v. United States, 125 U.S.App.D.C. 220, 224, 370 F.2d 242, 246 (1966). Reversed.

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Daniel JACKSON, Appellant, v. Luther ROBINSON. No. 71-1950. United States Court of Appeals, District of Columbia Circuit. March 20, 1973. As Amended March 27, 1973. Joseph Pauli, Washington, D. C., for appellant. Harold H. Titus, Jr., U. S. Atty. and John A. Terry, Asst. U. S. Atty., entered appearances for appellee. Before BAZELON, Chief Judge, and LEVENTHAL and ROBB, Circuit Judges. Circuit Judge ROBB did not participate in this Opinion. BAZELON, Chief Judge: This is a motion for stay of Jackson’s appeal from a denial by the District Court of his petition for habeas corpus. In the interval between filing of the appeal and its consideration by this court, Jackson has been afforded partial relief on his petition, and he has filed a new petition in the District Court seeking the remaining relief to which he feels entitled. Nevertheless, he now asks this court to stay proceedings and retain jurisdiction on his appeal “because of the asserted power of the Hospital to return him to maximum security without even a minimal due process hearing.” Although we are deeply troubled by appellant’s plight for reasons which are developed below, we nevertheless deny his petition for stay. He must therefore choose whether to pursue his appeal or dismiss it. Daniel Jackson was committed to St. Elizabeths Hospital on March 3, 1969 by the District Court after having been found not guilty by reason of insanity of burglary and rape charges. Jackson is mentally retarded, at the lower end of the mild retardation range. He was a patient in the John Howard Pavilion since his admission in 1969. In August of 1970 he was transferred to a minimum security ward and eloped from the Hospital shortly thereafter. He voluntarily returned with his mother approximately one week later. After a brief stay in a minimum security ward, he was placed in maximum security. In the petition for habeas corpus from which Jackson has appealed, he asserted that he was being illegally confined in maximum security as punishment for elopement and without minimal due process afforded him. Jackson further alleged that he should be treated as a substantially retarded person under 21 D.C. Code, ch. 11, and released from St. Elizabeths. On the basis of the testimony of the psychiatrist in charge of Jackson’s ward, the District Court found that the Hospital’s medical opinion that Jackson “has failed to demonstrate proper motivation and behavior to merit a transfer from the maximum security ward” is “reasonable in view of the relevant information available to it.” The court held that therefore Jackson was being legally detained in maximum security. The court further held that since Jackson had not shown that he was entitled to unconditional release under 24 D.C. Code § 301(e), he was not a feeble-minded person as defined in 21 D.C.Code § 1101 and was not entitled to treatment under that chapter. Jackson challenged both holdings in his appeal, notice of which was filed on October 28, 1971. Appellant’s brief was filed on September 15, 1972. On November 10, 1972, Jackson filed the petition for stay of proceedings in this court which is now before us. In this petition, Jackson asserts the following: 1. Since filing this appeal, appellant has been afforded partial relief in that he has been placed in minimum security and has been given ground privileges at St. Elizabeths Hospital. As a result, he does not wish to be treated as a feeble-minded person. 2. He has reason to believe that a new habeas corpus action may cause his release or conditional release thus giving him the relief he requested. 3. Nevertheless, he desires this Court to retain jurisdiction because of the asserted power of the Hospital to return him to maximum security without even a minimal due process hearing. It appears that Jackson is attempting to insure judicial scrutiny of a future transfer into maximum security, at least during the pendency of his new petition for habeas corpus in the District Court. We recognize the importance of the issue which Jackson is trying to keep alive. Numerous complaints to the District Court and to this court have attacked the lack of adequate administrative procedures to afford minimal due process to patients confined in or transferred to maximum security wards in the John Howard Pavilion. There are indications that the cases actually considered by this court may be merely the tip of the iceberg. Certainly we know that it is often impossible for a patient to obtain full judicial review of hospital procedures and dispositions involving cognizable rights before his complaint is rendered moot by a change in his circumstances — transfer, grant of conditional release or other remedial efforts —as has happened in this case. We are disturbed to think that this reality allows the Hospital to refrain from adopting the record-keeping and decision-making procedures which we have construed both statute and the Constitution to require. We repeat our by now familiar litany urging the Hospital to establish internal review and grievance procedures to supervise placement in maximum security, as well as release and treatment practices. And we are even more concerned that the hospital may be able to deliberately render issues moot prior to judicial consideration, and thus avoid the case-by-case review of complaints and grievances which serve as the “safety catch” on any administrative system. Jackson seeks to fashion his own remedy to the potential problem of mootness by having this court stay its consideration of the issue, retain jurisdiction and “hover in the wings” should his rights be placed in jeopardy again. This we decline to do, since Jackson’s case would perhaps then raise substantially different factual grounds relevant to immediate relief which would require de novo hearing. Furthermore, the issue could properly be raised in Jackson’s petition for habeas corpus, which we assume from this motion is now pending in the District Court. Finally, Jackson may be able to obtain the relief he seeks by pursuing the instant appeal. He may not have lost his right to a determination of the validity of his previous confinement in maximum security —either because that confinement may have continued collateral consequences or because the case presents a question of substantial importance which is likely to recur and which may be impossible to reach while the confinement continues. In this posture, we are reluctant to agree that fresh challenges to Jackson’s confinement in maximum security should be brought directly to this court and we therefore deny the petition for stay. ON APPELLANT’S MOTION TO WITHDRAW APPEAL On March 20,1973, the date of issue of this opinion, it was brought to the attention of this court for the first time that Jackson had submitted a motion to withdraw this appeal on February 14, 1973. Upon a petition of St. Elizabeths Hospital in a new proceeding, on February 8 the District Court approved the Hospital’s request for Jackson’s conditional release. In these circumstances, this court sees no reason to deny appellant his choice not to pursue this appeal, and his motion to withdraw it is granted. . In 1970 Jackson petitioned for release charging substantially the same violations of his rights. The District Court discharged the writ and Jackson apparently ' did not appeal. . Jackson v. Robinson, Findings of Fact and Conclusions of Law, HC No. 85-71, issued October 19, 1971, citing Williams v. Robinson, 139 U.S.App.D.C. 204, 208, 432 F.2d 637, 641 (1970) and Tribby v. Cameron, 126 U.S.App.D.C. 327, 328, 379 F.2d 104, 105 (1967). . If pursuant to the new writ Jackson is released from the Hospital, presumably it will no longer have the power to detain him in maximum security. If his writ is denied, there is some question whether Jackson will pursue this appeal -in its stead. . Covington v. Harris, 136 U.S.App.D.C. 35, 419 F.2d 617 (1969); Dixon v. Jacobs, 138 U.S.App.D.C. 319, 427 F.2d 589 (1970); Williams v. Robinson, 139 U.S.App.D.C. 204, 432 F.2d 637 (1970); Jones v. Robinson, 142 U.S.App.D.C. 221, 440 F.2d 249 (1971); Justin v. Jacobs, 145 U.S.App.D.C. 355, 449 F.2d 1017 (1971); Waite v. Jacobs, 154 U.S.App. D.C. _, 475 F.2d 392; Moffitt v. Robinson (Crim. No. 1450-69 pending in District Court). . From the cases seen by this court in the seven years since Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451 (1966) highlighted the lack of administrative and record-keeping procedures at St. Elizabeth’s, there is no indication of the adoption of any general revision of procedure or regulations. . For example, Williams v. Robinson, 139 U.S.App.D.C. 204, 432 F.2d 637 (1970). And see Justin v. Jacobs, supra note 4, 145 U.S.App.D.C. at 358, 449 F.2d at 1020. . See cases cited note 4, supra. We note that in this case the District Court’s determination with regard to the “reasonableness” of the Hospital’s decision was apparently based entirely on the testimony of the psychiatrist at the hearing. In Williams v. Robinson, supra note 4, 139 U.S.App.D.C. at 209, 432 F.2d at 642 we held that: “except as noted below, when a patient at Saint Elizabeths seeks to challenge the legality of hospital decisions regarding the treatment accorded him or the manner of his confinement, the hospital may not rely upon information or explanations not in the patient’s hospital record to justify its decision.” . See Rouse v. Cameron, supra note 5, 125 U.S.App.D.C. at 371 n. 22, 373 F.2d at 456, n. 22; Bolton v. Harris, 130 U.S. App.D.C. 1, 10, n. 58, 395 F.2d 642, 652 n. 58 (1968); Covington v. Harris, supra note 4, 136 U.S.App.D.C. at 45, 419 F.2d at 627. . Cf. Covington v. Harris, supra note 4, 136 U.S.App.D.C. at 42, 419 F.2d at 624. . See, e. g., Jones v. Robinson, supra note 4, 142 U.S.App.D.C. at 222, n. 1, 440 F. 2d at 250, n. 1; Justin v. Jacobs, supra note 4, 145 U.S.App.D.C. 355, 449 F.2d 1017; Hudson v. Hardy, 137 U.S.App.D.C. 366, 424 F.2d 854 (1970); Matthews v. Hardy, 137 U.S.App.D.C. 39, 420 F.2d 607 (1969). . Jemison v. Robinson (Civ. No. 927-70, D.D.C. three-judge court, Oct. 19, 1970); cf. Alton & Southern R. Co. v. International Association of Machinists, 150 U.S.App.D.C. 36, 463 F.2d 872 (1972). Consideration of Jackson’s appeal on these grounds would afford relief only to him. A more exhaustive investigation into existing Hospital procedures and their effects on patients’ rights, and into the problem of mooting out complaints, could be obtained only through a class action.

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UNITED STATES of America, v. James L. COCKERHAM, Appellant. No. 71-1955. United States Court of Appeals, District of Columbia Circuit. March 28, 1973. Bruce J. Terris, Washington, D. C. (appointed by this court), was on the brief for appellant. Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Robert A. Shuker and Robert E. L. Eaton, Jr., Asst. U. S. Attys., were on the brief for appellee. Before McGOWAN and MacKINNON, Circuit Judges, and WINTER, United States Circuit Judge for the Fourth Circuit. Sitting by designation pursuant to 28 U.S.C. § 291(a). PER CURIAM: In this appeal from a jury conviction of second-degree murder, the contentions which merit discussion are that the District Court erred in failing to ask certain questions during its voir dire of prospective jurors, in admitting inflammatory evidence, and in its control of the conduct of trial respecting the presentation of appellant’s insanity defense. Appellant was indicted for the murder of, and taking indecent liberties with, a seven-year old girl whose cause of death was exsanguination from a deep slash wound across the throat. She was also strangled and scalded, and suffered a blow to the back of the skull and injuries from a sexual assault. At trial appellant revealed he would not in any material way contest the facts of the crime, but would instead rely entirely on the insanity defense. Having decided to conduct the voir dire himself as was his right, Fed. R.Crim.P. 24(a), the trial judge solicited proposed questions from the parties. Appellant proffered fourteen, of which seven were rejected. He contends the rejected questions were designed to ascertain attitudes towards the insanity defense, and that failure to ask them deprived him of information essential to the exercise of peremptory challenges and challenges for cause. Without citation to authority, and we can find no federal cases to support this particular proposition, compare Brundage v. United States, 365 F.2d 616 (10th Cir. 1966), appellant urges that the rejection of such questions violated his right to an impartial jury. The record suggests that the trial judge appears to have believed the insanity defense to be an inappropriate subject for examination on voir dire. While we do not think this proposition stated so broadly is a safe guide to the conduct of criminal trials, we cannot say that under the circumstances here presented the action of the trial judge constituted an abuse of the broad discretion that was his to exercise in conducting the voir dire. Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 75 L.Ed. 1054 (1931). Of the seven questions rejected, only four were directly related to the insanity defense, and one of these four would have revealed only the neutral fact of prior jury service when the defense was raised. Of the remaining three, the trial judge covered one in substance by his questions concerning prior study in psychology or psychiatry, and prior employment in mental institutions. The final two questions essentially probed the willingness of the veniremen to accept the insanity defense. Absent any indication in the record that would negate the presumption of prospective jurors’ impartiality toward the defense, cf. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Connors v. United States, 158 U.S. 408, 415, 15 S.Ct. 951, 39 L.Ed. 1033 (1895); and, in view of the careful examination conducted by the court which consumed approximately forty-five pages of transcript, we think it was not reversible error to omit further questioning. Appellant urges that the admission of certain items of evidence was prejudicial error. We sympathize with all parties involved in the trial of such a case as this, and, while our review is designed to- detect the introduction of unduly prejudicial material, we recognize the inevitability of some inflammatory material reaching the jury as the Government properly attempts to prove its case. Appellant attempted to stipulate all facts of the crime proof of which would have tended to have inflammatory impact, and argues now that he had a right to so stipulate. We agree with other courts that have considered the matter and held there is no such right, and find that the trial judge acted properly in refusing to require the Government, which had agreed to several stipulations, to agree to others offered. United States v. Brickey, 426 F.2d 680, 686 (8th Cir. 1970); Alire v. United States, 313 F.2d 31, 34-35 (10th Cir. 1962), cert. denied, 373 U.S. 943, 83 S. Ct.. 1554, 10 L.Ed.2d 699 (1963); Parr v. United States, 255 F.2d 86, 88 (5th Cir.), cert. denied, 358 U.S. 824, 79 S.Ct. 40, 3 L.Ed.2d 64 (1958). And, in our examination of the record, we find that, while the advisability of permitting certain testimony may be in doubt, taken as a whole the trial judge did not abuse his discretion in permitting evidence of the murder to be introduced. The Government’s proof went both to establishing elements of the crime and to showing circumstantially that appellant' perpetrated the crime in a manner inconsistent with his defense of insanity. Its probative value thus sufficiently outweighed the danger of unfair prejudice to justify its admission. See Rule 403, Proposed Rules of Evidence for United States Courts and Magistrates, 56 F.R.D. 183, 218. Appellant contests the admission of his handwritten statement made to a psychologist who appeared as an expert witness for the defense, and who was using the statement in court to refresh his recollection. The psychologist acknowledged the statement to be a part of the basis for his diagnosis, and, apart from its discoverable nature, it was an appropriate subject for cross-examination and especially important for proper jury consideration of the insanity defense. Brawner, supra note 3, 152 U.S. App.D.C. at 26, 471 F.2d at 994 and cases cited at n. 45. Appellant also contends that the admission of evidence of his sexual assault on the victim within the meaning of 22 D.C.Code § 3501(a) (Supp. V, 1972) was reversible error since the court eventually dismissed the indecent liberties charge for insufficient evidence, a claim appellant had made in his pretrial motion. The record reveals sufficient medical evidence to support the decision to allow the Government to proceed with its case in the first instance, and the testimony it brought forth merely added detail to what the jury was aware of generally from appellant’s own statement to the psychologist, held admissible above. Affirmed. . In responding to appellant’s objection to the failure to ask questions which would reveal juror attitudes toward the insanity defense, the trial judge said: “It isn’t their attitudes. It is the law they have to comply with.” Later he said: “We know the insanity defense is a very technical legal charge they have to get. It is like asking jurors if they agree with tire presumption of innocence and burden of proof. I will instruct them in due course. I won’t ask anything on insanity.” . The suggestions that a number of citizens condemn those suffering from mental illness, see. e. g., United States v. Brawner, 153 U.S.App.D.C. 1, at 19 n. 26, 471 F. 2d 969, at 987 n. 26 (1972), and that some jurors may resist the insanity defense, particularly given vengeful attitudes likely to prevail concerning the serious offenses for which insanity is commonly raised as a defense, see, e. g., Goldstein, The Insanity Defense 24, 42, 214-15 (1967), or because they fear inadequate confinement might result from an acquittal by reason of insanity, see, e. g., Kalven and Zeisel, The American Jury 404-05 (1966), combine to reveal the possible existence of attitudes which the voir dire is designed to disclose. Thus where, for example — unlike here — the examination of jurors is otherwise brief and limited in scope, or elicits an indication of possible bias against the defense, it would seem inappropriate to refuse an inquiry into the matter at the risk of denying a defendant protection from juror partiality. See generally Annots., 112 A.L.R. 531 (1938); 99 A.L.R.2d 7, 23 n. 15 (1965). Tiie trial judge appeared to rest his decision on the ground that the insanity defense, like the presumption of innocence and burden of proof, is a proposition of law to be governed by the court’s instructions to the jury. To the extent the analogy is an apt one, the cases which address the exclusion of questions from the voir dire concerning propositions of law, i. e., the presumption of innocence and the reasonable doubt standard, do not say their inclusion would be improper. United States v. Crawford, 444 F.2d 1404, 1405 (10th Cir. 1971) cert. denied, 404 U.S. 855, 92 S.Ct. 98, 30 L.Ed.2d 95 (1972); United States v. Williams, 417 F.2d 630, 631 (10th Cir. 1969); United States v. Gillette, 383 F.2d 843, 849 (2nd Cir. 1967); Grandsinger v. United States, 332 F.2d 80, 81 (10th Cir. 1964); Stone v. United States, 324 F.2d 804, 807 (5th Cir. 1963). And, insofar as they rely upon the efficacy of the court’s instructions to the jury — as did the trial judge here — to hold the exclusion of such questions not to constitute an abuse of the court’s discretion, we note this reliance may on occasion be misplaced. Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). . The questions asked by the trial judge provided sufficient opportunity for such an indication to have appeared. When an indication of bias of another sort did arise, the trial judge displayed a conscientious desire to insure a fair voir dire, as illustrated by his asking one of the questions earlier rejected — concerning prejudice against a defendant with a prior record of car theft convictions — to a juror who revealed his family had been the subject of numerous such thefts. . For example, three descriptions of the victim’s neck wound were permitted. However, given the proper admissibility of some description of the wound which caused the death, the clinical nature of the - most complete description of that wound, and the proper admission of other evidence similarly inflammatory, we are unable to say that reversible error occurred. We note also in this regard that, had appellant gained stipulations as to these and other facts, they still would have been announced to the jury as were the other stipulations.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

FOOD STORE EMPLOYEES UNION, LOCAL NO. 347 AMALGAMATED MEAT CUTTERS and Butcher Workmen of North America, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 71-1550. United States Court of Appeals, District of Columbia Circuit. Argued April 17, 1972. Decided March 21, 1973. As Amended April 3, 1973. Rehearing Denied May 18, 1973. Mozart G. Ratner, Washington, D. C., and Judith A. Lonnquist, Chicago, Ill., with whom Albert Gore, Chicago, Ill., was on the brief, for petitioner. Robert E. Williams, Atty., N. L. R. B., of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of court, with whom Marcel Mallet-Prevost, Asst. Gen. Counsel, and Steven R. Semler, Atty., N. L. R. B., were on the brief, for respondent. Before BAZELON, Chief Judge, and McGOWAN and LEVENTHAL, Circuit Judges. McGOWAN, Circuit Judge: In this direct review proceeding under the National Labor Relations Act, we are concerned only with remedies. The wrongs — consisting of Section 8(a)(1) and (5) violations — were before us in Food Stores Employees Union, Local 347 v. NLRB, 139 U.S.App.D.C. 383, 433 F.2d 541 (1970). We there granted enforcement of the Board’s order, but, in response to the Union’s contention that the Board should have gone further in providing adequate relief, we remanded the case to the Board for reconsideration of the Union’s requests in this regard. Although the Board has increased somewhat the range of the relief granted by it initially, the Union has renewed its complaint to this court that the Board has fallen short of proper effectuation of the policies of the Act. To the limited extent hereinafter indicated, we find this to be true; and we enlarge the remedies accordingly. I The employing company, Heck’s Incorporated, is not a stranger to the processes of the Board. Operating a chain of discount stores in the Southeast, this is the eleventh time that its resistance of union organization has embroiled it in Board proceedings. In none has it prevailed at the Board level, and its fortunes in the Courts of Appeals have been only marginally better. In its first opinion in this case, the Board characterized Heck’s as having “a labor policy in all of its stores that is opposed to the policies of the Act.” In its Supplemental Decision following upon our remand, the Board asserts that “it is by now clear that [Heck’s] conduct here is but part of a pattern of unlawful anti-union conduct engaged in by [Heck’s] top officials throughout [its] entire operations for the purpose of denying to all of its employees the exercise of those rights guaranteed the employees by Section 7 of the Act;” and, viewing Heck’s conduct not “in isolation” but “in the total context,” the Board characterized Heck’s unfair labor practices as “clearly aggravated and pervasive.” The unfair labor practices involved in this case grew out of the Union’s effort to organize the employees of Heck’s store in Clarksburg, West Virginia. The 8(a)(1) violation was found by the Board to reside in unlawful questioning and threatening of employees, and management polling by nonsecret ballot to ascertain the degree of employee support for the Union. The 8(a)(5) dereliction consisted of a refusal to bargain despite the existence of cards showing a majority in favor of the Union. The remedies initially afforded by the Board included a bargaining order, and the conventional command that the employer cease and desist from interfering with Section 7 rights. Appropriate notices of the relief given were directed to be posted at all of Heck’s stores. The Union’s requests for additional relief at issue on the remand were as follows: 1. A copy of the notices ordered to be posted should also be sent to the home of each Heck’s employee, and the president and vice-president of Heck’s should be required to read the notices to employees at all Heck’s locations. 2. To facilitate Union access to employees, Heck’s should (a) provide the union with a list of names and addresses of all its employees; (b) afford the Union access to company bulletin boards and other posting places; (c) permit Union use of employer facilities in non-working parts of the stores during non-working hours; and (d) permit the Union to call a meeting in each store on company time in facilities customarily used for employee meetings. 3. Heck’s should be ordered to bar-, gain with the Union on a company-wide basis, i. e., the Board should recognize a bargaining unit encompassing all the stores in the Heck’s chain. 4. The General Counsel should be ordered to seek injunctions under § 10(j) of the Act whenever a complaint issues against Heck’s. 5. Heck’s should be ordered to reimburse employees for the loss of wages and fringe benefits that would have obtained if it had not flagrantly violated § 8(a)(5) by refusing to bargain about a contract. 6. Heck’s should be ordered (a) to pay the Union the amount of dues and fees which would have been paid by the employees of the Clarksburg store during the period of Heck’s refusal to bargain; and (b) to compensate the Union for its litigation expenses, including reasonable attorney’s fees, and for excess organization expenses caused by the unfair labor practices to which it was subjected. The proceedings upon remand consisted of the receipt by the Board of statements of position from the General Counsel, the Union, and Heck’s. After consideration of these statements, the Board issued a Supplemental Decision and Amended Order, which enlarged the remedies in the following respects: 1. The notices required to be posted at all of Heck’s stores are also required to be mailed to each employee at his home. 2. The Union is to be afforded access for a one-year period to.’ Heck’s bulletin boards, and other places where notices to employees are customarily posted, for the posting of Union notices, bulletins, and other organizational literature. - 3. The Union is to be furnished by Heck’s with a list of all of its employees’ names and addresses, such list to be kept current for a one-year period. Dissatisfied with the degree to which the Board thus moved in the direction of meeting its requests, the Union petitioned for review in this court'. The Board has responded in defense of its actions, but Heck’s, although its position on remand was that no additional relief was in order, has not intervened and is not now before us. II We turn first to the controversies that remain with respect to non-monetary relief. All of the additional relief given on remand was of that character, and it is now unchallenged. The Union does not appear to press its contention that the notices — now required to be mailed as well as posted — also be read by the company officers; and we do not, in any event, disturb this exercise of the Board’s discretion. The union does complain of the failure to give it access to the employees on company property. The Board was of the view that this privilege was not demonstrably necessary to the effectiveness of the Union’s organizing efforts, especially in the train of the Board’s action in requiring that the Union be furnished with the list of employees’ names and addresses. Until this latter expedient had been tried and found wanting, the Board thought that the problems inevitably attendant upon Union activity on company property need not be anticipated. This is an exercise of judgment which we are not disposed to overturn. The Union also persists in its assertion that the bargaining order, which presently embraces only the unit at the Clarksburg location, should be made company-wide. The Board, emphasizing that the Union’s organizing campaign has been, as in the case of Clarksburg, conducted on a store-by-store basis, and that there is no claim that the Union represents a majority of all the employees or a majority in any location other than those presently covered by bargaining orders, alludes to the novelty of this kind of relief, especially in the light of Section 7’s explicit guarantee of the right of employees to refrain from representational bargaining. Despite the unrelieved history of the omission of this device from the Board’s remedial arsenal, the Board has purported to consider the proposal on its merits. Its conclusion was that the Union’s very success in gaining majorities in a number of single locations indicates that its potential for successful organization elsewhere is substantial — a potential which, indeed, has been presumably increased by the enlarged relief currently being given. Under these circumstances, the Board thought it both unnecessary and unwise to risk trenching upon the policies of Section 7 in the absence of proof that the Union would be helpless without this extraordinary relief. These considerations seem to us rational in nature and well within the range of respect traditionally to be accorded by us to the Board’s determinations. Ill The remaining components of the Un-. ion’s prayer for additional relief involve monetary compensation. They are four in number. 1. Legal Fees and Litigation Expenses. It is the Union’s submission that, where it is necessary to exhaust legal procedures in order to attain rights accorded it by the Act, it should be reimbursed for its counsel fees and other litigation expenses, at least in respect of an employer who, like Heck’s, has been found by the Board to have engaged in a deliberate “pattern of unlawful anti-union conduct.” The Board, however, stressed the fact that the Act assigns the laboring oar to the General Counsel in the prosecution of an unfair labor practice charge, and that the participation of the charging party is not central to the public purposes of the statute but, rather, incidental to that party’s efforts to assure protection of its own private interests. With this statutory framework, said the Board, “the public interest in allowing the Charging Party to recover the costs of its participation in this litigation does not override the general and well-established principle that litigation expenses are ordinarily not recoverable.” There are, it seems to us, obvious difficulties with this approach, certainly in the case of an employer who appears to look upon litigation as a convenient means of delaying — and thereby perhaps avoiding — the fatal day of union recognition and collective bargaining. We need not pursue those difficulties in detail, however, for the reason that the Board itself has subsequently departed from the rationale upon which its refusal of litigation expenses in this case is based. In its Supplemental Decision and Order, 194 NLRB No. 198, issued after remand by this court in International Union of Electrical, Radio & Machine Workers, AFL-CIO v. NLRB (Tiidee Products, Inc.), 138 U.S.App.D.C. 249, 426 F.2d 1243 (1970), cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 256 (1970), the Board ordered the additional relief of payment to both the labor organization and the Board of their litigation expenses in both the Board and court proceedings. In doing so the Board reasoned that the Congressional objective of achieving industrial peace through collective bargaining “can only be effectuated when speedy access to uncrowded Board and court dockets is available.” It went on to conclude that, “in order to discourage future frivolous litigation, to effectuate the policies of the Act, and to serve the public interest we find that it would be just and proper” to order reimbursement of both the Board and the Union for their expenses incurred in the investigation, preparation, presentation, and conduct of the cases before it and in this court. We think the considerations which motivated the Board to give this enlarged relief in Tiidee are also operative here. Although the Board in its Supplemental Decision in this case has nowhere characterized the litigation as frivolous, it has used the language of “clearly aggravated and pervasive” misconduct; and in its original opinion it questioned Heck’s good faith because of its “flagrant repetition of conduct previously found unlawful” at other Heck’s stores. It would appear that the Board has now recognized that employers who follow a pattern of resisting union organization, and who to that end unduly burden the processes of the Board and the courts, should be obliged, at the very least, to respond in terms of .making good the legal expenses to which they have put the charging parties and the Board. We hold that the case before us is an appropriate one for according such relief. 2. . Organizing Costs. In its Supplemental Decision after remand, the Board lumped litigation expenses and excess organizational costs together in its discussion. It prefaced that discussion by saying that “ . we are not unmindful of the probability that the Charging Party has spent more money on organizational costs and attorneys’ fees than it would have spent had [ Heck’s] not refused to bargain.” It concluded, however, not to make any allowances in this regard for the reasons articulated by it in denying litigation expenses. This rationale, as we have seen, generally turned upon what the Board considered to be the subordinate role of a charging party in the scheme of the Act. As in the case of litigation expenses, the Board, upon remand in Tiidee, has shifted its ground with respect to organizational costs. In its Supplemental Decision in Tiidee, the Board did not allow the claim for excess organizational expenses, but it justified that action solely on the ground that “ . . . the Union was selected by the employees after a 2-month campaign at the first election held;” and, because of this circumstance, the Board found “ . . .no nexus between Respondent’s unlawful conduct here under examination and the Union’s preelection organizational expenses . ” Thus, in Tiidee the Board appears to have denied organizational costs because it believed that, on the facts of that case, no unusual organizational costs had been incurred. This obviously is quite a different thing from saying that the policies of the Act forbid the allowance of such costs in cases like the one before us, where the Board has in terms indicated its awareness of “the probability” that such costs were experienced by reason of Heck’s intransigence. Under these circumstances we find nothing in the Board’s Supplemental Decision which constitutes an adequate justification for the denial of extraordinary organizational costs to which the Union was exposed by reason of Heck’s policy of resisting organizational efforts and refusing to bargain; and we think that provision for such costs should have been included in the remedies fashioned by the Board on remand. 3. Union Dues and Fees. In its Supplemental Decision dealing with the Union’s claim that it should be reimbursed for union dues and fees lost by it during the period when Heck’s was refusing to bargain, the Board asserts that the only predicate for such relief would be a finding by it that, had there been bargaining, it would have resulted in the inclusion of a union security clause which would have required payment of dues and fees as a condition of continued employment. The Board concludes that “[W]hile the execution of such an agreement is of course a possibility, we cannot conclude that it is so strong a probability that any loss of dues or fees must be deemed to have resulted from [Heck's] unlawful refusal to bargain.” The Union, in challenging this conclusion, argues alternatively that (1) the likelihood of the successful negotiation of a union security clause is substantial in the light of the prevalence of such clauses in collective bargaining agreements, or (2) even if it be assumed that no such contract would have ensued, the willingness of Heck’s to bargain at all would have resulted in the voluntary payment of union fees and dues by at least some of the 26 employees who signed the authorization cards. We have difficulty with each of these hypotheses. It is undoubtedly true that union security clauses have attained a wide degree of use, but it also remains true that an employer may bargain to impasse with respect to such a demand, and that the Board may not impose that obligation upon the employer. H. K. Porter Co. v. NLRB, 397 U.S. 99, 90 S. Ct. 821, 25 L.Ed.2d 146 (1970). We also think it speculative in the extreme to suppose that employees would voluntarily begin paying initiation fees and dues to a union which has been denied recognition and failed to produce a contract. There is nothing in the record to show —and the Union does not represent to us — that it made any effort to assess dues and fees during the period of its travail with Heck’s. In the absence of such evidence, there is some reason to suppose that union policy, generally and in the case of the Union here involved, is not to make any effort to collect dues and fees, at least in the case of newly organized employees, until the fruits of union membership are brought home in the form of a signed agreement. It would, in any event, present formidable problems of proof to try to determine at this late date which employees would, if they had ^been asked, have paid fees and dues during the period in question. Short of assuming that all would have done so — an assumption for which there seems little foundation in the realities of human nature — the inquiry would be an exercise in futility. In any event, the loss, if any, of such dues and fees will, we think, be offset to some extent by the relief we have directed in respect of extraordinary organizational costs. 4'. Compensation for Lost Benefits. The additional remedy of making its •members whole for the wage and other fringe benefits which might have accrued from the bargaining process is the matter principally pressed by the Union. In its Supplemental Decision, the Board initially reiterated its position, stated in Ex-Cell-0 Corporation, 185 NLRB No. 20, that it was wholly lacking in statutory authority to give relief of this nature. However, it went on to conclude that, even if it had the power' to act, this would not be an appropriate case in which to do so. It pointed to the opinions of this court subsequent to Tiidee, in which we have held the make-whole remedy inapplicable where the refusals to bargain rested on “debatable” issues, as contrasted with those which we, as in Tiidee, have characterized as “patently frivolous.” Referring to the precise circumstances of this ease, the Board concluded that the latter category did not embrace a defense which failed solely by reason of the credibility determinations of the Trial Examiner. The union, although harassed from the beginning of its organizing campaign at the Clarksburg store, within a few days represented to Heck’s that it had in hand the signed authorization cards of a majority of the employees; and it requested recognition and bargaining. The response of Heck’s was to file a petition for an election. When the election was held some six weeks later, the Union lost by a vote of 16 to 19, although this result was subsequently nullified by reason of the employer’s unfair labor practices. The Trial Examiner found that the General Counsel had failed to prove that Heck’s lacked a good faith doubt of the Union’s majority status and that, accordingly, there was no 8(a)(5) violation. In making this determination, the Trial Examiner focused first on the substance of Heck’s refusal to recognize the Union on the basis of the cards. The administrative hearing record shows that Heck’s introduced testimony by certain employees as to intimidation and other circumstances which, if it had been believed, would have eliminated enough cards to vitiate the majority status claimed by the Union. Although the Trial Examiner ultimately found each of the cards to have been validly obtained, he noted that the determination turned upon some close questions concerning the credibility of witnesses. The Trial Examiner also emphasized the fact that Heck’s had promptly filed an election petition after the demand was made, and that Heck’s had had some prior experience with card-based bargaining demands from the Union which later proved unwarranted. The Board took its stand principally upon what it termed to be the long history of disregard by Heck’s generally of its obligations under the Act. Thus the Board’s finding of bad faith was based not on a determination that Heck’s objections to this particular demand for recognition were insubstantial, but rather on Heck’s repetition in the period preceding the election of conduct found in prior proceedings to have been illegal. We agree with the Board’s conclusion that an employer’s good faith must be judged in the entire context of its behavior, and indeed our determination that some additional remedies are required in this case is based on Heck’s consistent and repeated demonstration of antiunion animus. However, the factors which influenced the Trial Examiner on the issue of good faith remain undisturbed by the Board’s decision and are relevant to the appropriateness of the make-whole remedy. In the light of these circumstances, we are not inclined to say that the Board’s treatment of this issue on remand is beyond the wide range of latitude traditionally accorded the Board in the matter of remedies. The Supreme Court, although ultimately accepting the signed card approach in Gissel as a basis for creating the recognition and bargaining obligation, did at the same time refer to cards as “admittedly inferior to the election process.” The employer here appears to have had some basis for questioning the result of the card approach, and it exhibited its readiness to invoke the election process. We do not, accordingly, revise the Board’s failure to provide an additional remedy in the form of a make-whole provision. We grant enforcement of the Board’s Amended Order, as the same shall be further enlarged upon remand by the inclusion of the additional remedies of litigation costs and organizational expenses discussed hereinabove. It is so ordered. . The long history of this struggle is as follows: Heck’s Discount Store, 150 NLRB 1565 (1965), enforced per curiam, 369 F.2d 370 (6th Cir. 1966); Heck’s Inc., 156 NLRB 760 (1966), enforced as modified, 386 F.2d 317 (4th Cir. 1968); Heck’s Inc., 158 NLRB 121, enforced per curiam, 387 F.2d 65 (4th Cir. 1967); Heck’s Inc., 159 NLRB 1151 and 159 NLRB 1331 (1966), consent decree entered (4th Cir. No. 11,390 June 13, 1967); Heck’s Inc., 166 NLRB 186 and 166. NLRB 674 (1967), enforced as modified 390 F.2d 655 (4th Cir. 1968) and 398 F.2d 337 (4th Cir. 1968), modified and remanded sub nom. NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); Heck’s Inc., 170 NLRB 178 (1968), enforced in part, re-mantled in part in light of NLRB v. Gissel Packing Co., supra, 135 U.S.App.D.C. 341, 418 F.2d 1177 (1969); Heck’s Inc., 171 NLRB 777 (1969); Heck’s Inc., 172 NLRB No. 255 (1969), enforced in part, remanded in part, 139 U.S.App.D.C. 383, 433 F.2d 541 (1970); Heck’s Inc., 174 NLRB 951 (1971). . The Fourth Circuit refused to enforce an 8(a)(5) order to bargain in NLRB v. Heck’s Inc., 386 F.2d 317 (4th Cir. 1967), on the ground that the card majority had been obtained through improper participation of supervisory personnel. In N.L.R.B. v. Heck’s Inc., 398 F.2d 337 (4th Cir. 1968), the court declined enforcement of an order to bargain, but that decision was reversed by the Supreme Court sub nom. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). This court, while enforcing the Board’s order in part in Food Store Emp. U., Loc. 347, Amal. Meat Cut. v. NLRB, 135 U.S.App.D.C. 341, 418 F.2d 1177 (1969), remanded, in light of Gissel, for further findings as to whether the employer’s refusal to bargain was accompanied by independent unfair labor practices which precluded a fair election. . In its Supplemental Decision, the Board at the outset noted that the Union requested this particular relief and the General Counsel opposed it, and thereafter made no further reference to the matter. Similarly, there was no discussion of this item by either the Union or the Board in their briefs and arguments before us. In these circumstances we do not pursue the matter, except to remark that the General Counsel’s statement on remand emphasizes his continuing sensitivity to the obligations imposed upon him by Section 10(j). He also pointed out that the final order to be entered by the Board in this case runs against Heck’s, and cannot operate to impose obligations on the General Counsel. It may be that the matter was not pressed upon the Board in the light of these representations. . Neither do we disturb the Board’s rejection of a related Union proposal, which was' supported by the General Counsel, that the Board enter now a bargaining-order with respect to any single-store unit as 'to which the Union hereafter secures a card majority or otherwise achieves bargaining rights. The Board, in addition to believing that this was not essential to the employees’ ability in the future freely to choose their bargaining representatives, pointed out that disputes over representation issues would, under this approach, presumably have to be decided by the courts of appeals acting with the aid of special masters — a circumstance that promises neither greater expedition in handling nor more expert resolution in result. We have no warrant to fault the Board for taking these considerations into decisive account. . N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 612 n. 32, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203, 216, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964); International Union of Electrical, etc., Workers v. N.L.R.B., 138 U.S.App.D.C. 249, 426 F.2d 1243, 1250 (1970), cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L. Ed.2d 256. . These reimbursable expenses were described by the Board as “reasonable counsel fees, salaries, witness fees, transcript and record costs, printing costs, travel expenses and per diem, and other reasonable costs and expenses.” . In his statement of position on remand, the General Counsel supported the Union’s entitlement to extraordinary organizational costs. His comment was that where the Union was required by Heck’s unfair labor practices “to expend additional funds in organizational activity over and above those normally required . . . [Heck’s] should be ordered to reimburse the Union for these additional expenditures.” . Counsel for the Board in their brief in this court attempt to supply a number of reasons why excess organizational costs should not be taken into account, such as their assertedly speculative nature and their invitation of collateral litigation which burdens the Board’s administration of the Act. These are counsel’s reasons, not the Board’s; and, under familiar principles of judicial review of administrative agencies, we appraise the Board’s actions only in terms of the latter. . The Board raised, although it pretermitted, a question as to its power to provide a remedy in respect of union dues and fees, because of the restrictions on payments by employers to employee representatives imposed by Section 302 of the Act. Because of the disposition we make of this claim we need not pursue this issue of authority, although it would appear that Section 302 is addressed to other circumstances than those involved here. . In its rejection of a claim of this kind on remand in Tiidee, the Board noted that the labor organization involved in that case had asserted that “ . . . because it is union policy not to collect initiation fees and dues until a contract is executed, it has received nothing from the unit employees throughout the course of this proceeding . . . ” The Board purported first to view this claim as “partaking of a request for a make-whole remedy, which wo have declined to order, since presumably the dues and fees sought would have come from lost wages . ” Although it may be that the Board here is confusing the substantive merits of a make-whole remedy with the wholly manageable problem of preventing a double recovery, the Board went on to conclude that, since the union as a matter of policy did not seek initiation fees and dues prior to negotiation of a contract, it saw no reason to cause the employer to assume the risk of that passivity. . In Bangor & Aroostock R. Co. v. BLFE, 143 U.S.App.D.C. 90, 442 F.2d 812 (1971), this court held that (lues and fees could be recovered by a union as damages in respect of improper job abolitions. A uni on shop clause in the collective bargaining agreement there involved made it plain that, but for the employer’s action, dues and fees would have been paid. The uncertainty claimed was whether men hired to fill the positions would have joined the plaintiff union .rather than its competitor. The court there thought that the evidence supported a reasonable inference that they would, thereby justifying the placing of the burden of proof as to the uncertainty on the employer. In the case before us, union policy would have resulted in no re- • ceipt of dues and fees even during' an unduly prolonged bargaining period. . International Union, UAW v. NLRB (Ex-Cell-O Corporation) 145 U.S.App. D.C. 384, 449 F.2d 1046; Id., 145 U.S. App.D.C. 390, 449 F.2d 1058 (1971); Steelworkers v. NLRB (Quality Rubber Mfg. Co.), 139 U.S.App.D.C. 140, 430 F.2d 519 (1970); Amalgamated Clothing Workers v. NLRB (Levi Strauss & Co.), 142 U.S.App.D.C. 337, 441 F.2d 1027 (1970). In Ex-Cell-O, the union requested and won the election, but the employer refused recognition on the basis of union activity which allegedly precluded a fair election. In Quality Rubber, the employer refused recognition on the basis of cards, but did not seek an election. The result turned on issues of credibility which, although resolved against the employer, were found to be consistent with good faith. In Levi Strauss & Co., the union requested an election after the employer refused recognition on the basis of cards. The union lost, but the employer was ordered to bargain because it was found to have engaged in unfair labor practices during the period preceding the election. Again the resolution turned on conflicting testimony. . Heck’s Inc., 159 NLRB 1151, 159 NLRB 1331, consent decree entered (No. 11,390, 4th Cir. June 13, 1967); N.L.R.B. v. Heck’s Inc., 386 F.2d 317 (4th Cir. 1968). . The Board is equipped with a broad arsenal of remedies which it may employ in the case of a persistent violator. Rather than require application of such remedies on an all-or-nothing basis, it seems to us preferable to preserve sufficient flexibility to adjust the relief granted to the particular facts of each case. There are, as in everything else, degrees of flagrancy — and variations in its pattern.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America v. Robert MILLER, Appellant. No. 72-1393. United States Court of Appeals, District' of Columbia Circuit. Argued March 1, 1973. Decided March 21, 1973. Rehearing Denied April 18, 1973. Robert A. Cantor, with whom Gerald B. Greenwald (both appointed by this court) and John G. Manning, Washington, D. C., were on the brief, for appellant. David M. Bullock, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. and John A. Terry, Asst. U. S. Atty., were on the brief for appellee. Roger M. Adelman, Asst. U. S. Atty., also entered an appearance for appellee. Before McGOWAN and WILKEY, Circuit Judges, and ROBERT VAN PELT. Senior United States District Judge for the District of Nebraska. Sitting by designation pursuant to Title 28, U.S.Code, Section 294(d). PER CURIAM: This appeal is from a denial by the District Court of a motion to vacate sentence under 28 U.S.C. § 2255. Convicted by a jury of federal narcotics offenses, 26 U.S.C. § 4704(a) and 21 U.S.C. § 174, appellant received the mandatory minimum sentence of ten years. This court remanded for reconsideration of sentence in the light of our holding in Watson v. United States, 141 U.S.App. D.C. 335, 439 F.2d 442 (1970) (en banc), with respect to eligibility under the Nan cotic Addict Rehabilitation Act, 18 U.S. C. §§ 4251-55 (1970). The District Judge thereupon committed appellant for observation and report under Title II of NARA. The NARA staff at Danbury found that appellant was an addict, but concluded that he was not likely to respond affirmatively to the treatment program in use at Danbury. The report urged, however, that appellant should be in a program involving methadone maintenance and individual therapy. The District Court, without (so far as appears from the record) giving appellant or his counsel notice of the report or an opportunity to be heard with respect to it, ordered appellant recommitted to the Attorney General to continue serving his ten-year sentence. Appellant asserts that this improperly cut off his right to allocution. Without finding it necessary to deal with the matter solely in terms of allocution, we do not view this as a satisfactory way of proceeding when the report came back from Dan-bury. Had appellant or his counsel been apprised of the contents of the report and been afforded a chance to make representations based upon it, it may be that the court would, at the least, have coupled with its sentence a recommendation or request that appellant be afforded treatment. As it is, appellant spent some 15 months in the D.C. jail after his recommitment and has since been at Lorton, in neither case, insofar as we can tell from the record and the representations at oral argument, with opportunity for treatment of his narcotics problem. We remand for reconsideration of the sentence after notice and hearing with respect to the Danbury report. In so doing, we intimate no views with respect to precisely what other alternatives, if any, are available to the court by way of response to the Danbury suggestions. At oral argument before us, for example, counsel suggested that the nature of the particular program in being at Danbury may perhaps not be taken as defining the range of treatment available under a NARA commitment. In any event, counsel may make such representations upon remand as he believes to be warranted. It is so ordered. . Appellant’s other contentions in the appeal presently before us are grounded upon our opinion in Watson. They are without merit because of the clear evidence of record that appellant was trafficking in narcotics. . The concluding paragraph of the Dan-bury report is as follows : Our staff finds that Mr. Miller is an addict. Because of his needs as he expresses them and his reluctance to participate in the NARA Program, we do not recommend that he be committed for treatment under the Narcotic Addict Rehabilitation Act. Hopefully, some other resource may be found through which Mr. Miller can attempt methadone maintenance and individual therapy. He would appear to be a good candidate for this form of treatment provided fairly close supervision could be established.

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Caselaw Access Project

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2024-08-24T03:29:51.129683

Peter KOCHLACS et al., Plaintiffs-Appellants, v. LOCAL BOARD NO. 92 et al., Defendants-Appellees. No. 72-1274. United States Court of Appeals, Seventh Circuit. Argued Oct. 27, 1972. Decided Feb. 23, 1973. Donald S. Frey, Evanston, Ill., for plaintiffs-appellants. James R. Thompson, U. S. Atty., and William T. Huyck, and Ann P. Sheldon, Asst. U. S. Attys., Chicago, Ill., for defendants-appellees. Before HASTINGS, Senior Circuit Judge, and FAIRCHILD and PELL, Circuit Judges. PELL, Circuit Judge. Plaintiffs appeal from the dismissal of their amended complaint. Typified as a class action, the suit named as defendants four specified selective service boards and the “National Selective Service System Office, Washington, D.C.” and purportedly sought relief on behalf of theological students and ministers who have refused their 4-D classifications and registration cards, “all of whom made such refusal not to participate in the War Selective Service System (even by holding 4-D classifications) because of their commitment to their Christian religious beliefs.” Injunctive and declaratory judgment relief was sought. The four named plaintiffs were allegedly entitled to 4-D exemptions, 32 C. F.R. § 1622.43. Plaintiffs Kochlacs and Bates were students at Garrett Theological Seminary and plaintiffs White and Heuerman were ministers of the United Methodist Church. All had turned in their 4-D classification cards to their respective boards and all but Heuerman their registration cards, “in protest of the continuance of the War Selective Service System.” Kochlacs had received an order from his board to report for induction and he had refused to comply with the order “for the reason that his religious beliefs call him to a higher obedience above that obedience demanded of him by the laws of the United States Selective Service System.” There is no indication that he had been prosecuted for his refusal. The other three named plaintiffs allegedly expected similar orders of induction. There is no allegation, however, that any of them had been reclassified from 4-D. A violation of First Amendment rights was claimed by the four as well as for the members of the class. It is the plaintiffs’ view that there is an unconstitutional violation of their freedom of religion for them to have to participate in the Selective Service System in any way. They thus seek to be exempted from all requirements, including, apparently, the registration requirements. We find this contention without merit. Title 50 U.S.C. App. § 456(g), in setting out the exemption for ministers and students preparing for the ministry, specifically states that they are exempted from training and service, but not from the registration provisions of the section. Thus ministers are entitled to no extraordinary treatment as to the registration requirement. In United States v. Henderson, 180 F.2d 711 (7th Cir. 1950), cert. denied, 339 U. S. 963, 70 S.Ct. 997, 94 L.Ed. 1372, this court had before it a similar challenge to the registration requirements. That challenge was rejected by the court and plaintiffs have given us no reason to reconsider that well-reasoned opinion. Moreover, we note that the Selective Service System does provide administratively for the handling of those who are conscientiously opposed to war. The congressionally ordained administrative structure has been repeatedly upheld by ■the Supreme Court on a balancing of the broad power of Congress to raise armies as against primary First Amendment rights. See United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Although their underlying contention must be rejected, plaintiffs contend that the dismissal of their complaint was still incorrect when considered in the light of Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S. Ct. 414, 21 L.Ed.2d 402 (1968), which allowed preinduction review in spite of § 10(b)(3) of the Military Selective Service Act of 1967, and held that a divinity student could not be punitively reclassified for returning his classification card. Plaintiffs contend that they live in constant fear of a retaliatory reclassification as occurred in Oestereich and that such a fear is not unrealistic since such a reclassification was visited upon Kochlacs. Further, they contend that all members of their class are similarly concerned. We have no difficulty in affirming the district court’s dismissal as to all plaintiffs except Kochlacs. An examination of the contentions of the other three named, plaintiffs shows that none has even been threatened by his board with reclassification. In essence, these plaintiffs can only point to isolated actions by local boards (e. g., Kochlacs’s board) for their expressed fear that they will be reclassified in violation of the thrust of Oestereich. We, in effect, are asked to assume that local boards will disregard the Oestereich clear mandate against punitive reclassifications. We do not conceive that mere suspicion without some reasonable basis entitles a person to sue an agency of the Government to prevent that agency taking action which is in violation of the law. There must be some substance to the fear and we can find none for the three plaintiffs. We also note that the regulation under which the local board declared the registrant in Oestereich to be a delinquent, 32 C.F.R. § 1642.4(a), has been omitted from the most recent edition of the regulations. Plaintiffs cite Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), to support their position that fear is enough. We do not so read Dombrowski where the chilling or fear certainly did not border on the chimerical. In sum, we will not assume that local boards and the operative apparatus of the Selective Service System will act in blatant violation of the law as set out in Oestereich. What we have said with regard to the specific cases of the three plaintiffs would a fortiori be applicable to those unnamed but theoretically fearing students and ministers who had supposedly repudiated jurisdiction over themselves by the Selective Service System. We find no basis for a class action in this instance. As we have indicated, Kochlacs presents a more troublesome case as he allegedly suffered exactly the deprivation visited on Oestereich, i. e., a punitive reclassification because of returning cards to his board. There are, however, significant factual distinctions between the cases. First, Kochlaes’s local board acted after the decision in Oestereich. Arguably this might make the action of the board more reprehensible and unsupportable because of being in violation of the holding of the Supreme Court. But upon further analysis it would be reasonably predictable that upon appeal within the administrative framework of the System there would be a reversal. In Oestereich, the board was operating under a properly adopted regulation. This would not now be true. Even if a particular local board was not aware of the elimination of the regulation, we would not assume that the higher echelons of Selective Service would be unaware thereof. We note that Kochlacs, consistent with his view that he should be exempt from any contact with the Selective Service System on grounds of freedom of religion, never appeared before his local board, never requested a personal appearance, and never took an administrative appeal from his reclassification as I-A. Thus, he is in the situation of the defendants in McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969), and McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971). In McKart, the Court held that the defendant in a criminal prosecution for refusing induction was not barred from defending on the ground that he was entitled to a deferment as a sole surviving son, IV-A, even though he had not taken an administrative appeal. The Court emphasized that the question was solely one of law and that the record was sufficient. In contrast, the Court in McGee held that the defendant could not raise his claim to a deferment as a student studying for the ministry (or a conscientious objector) because he had failed to ask for a personal appearance or appeal his classification. On the surface, the present case is close to McGee since both deal with divinity students, but the distinction does exist in that in McGee the local board had no real evidence in its files that the registrant was entitled to a 4-D. Here, Kochlacs’s file had evidence of his status since the board had previously granted him a 4-D exemption, and, allegedly, the only reason the board reclassified him was that he returned his cards. We do not have to resolve this difficult question, however, since both McGee and McKart were cases involving defense to criminal prosecutions. Kochlacs, although he has refused to report for induction, has never been indicted. It is our view that the exception to the bar on preinduction review (not habeas corpus or defense to a criminal charge) set out in Oestereich should not be applied in a case such as the present one where there is no reason to think an appeal would be fruitless and where there has been no exhaustion of the administrative remedies within the Selective Service System. Kochlacs contends that his case is exactly like Oestereich’s and therefore there was blatantly lawless misconduct. But as Mr. Justice Harlan in his concurrence emphasized, Oestereich also had the element that a regulation of the Selective Service System was being challenged. Such “a challenge to the validity of the administrative procedure itself not only renders irrelevant the presumption of regularity, but also presents an issue beyond the competence of the Selective Service Boards to hear and determine. . To withhold pre-induction review in this case would thus deprive petitioner of his liberty without the prior opportunity to present to any competent forum — agency or court — his substantial claim that he was ordered inducted pursuant to an unlawful procedure. Such an interpretation of § 10(b)(3) would raise seriohs constitutional problems, and is. not indicated by the statute’s history, language or purpose.” 393 U.S. at 242-244, 89 S. Ct. at 419-420. (Footnotes omitted.) We recognize that the Court did not draw the line in this way in Oestereich, see Fein v. Selective Service System Local Board No. 7, 405 U.S. 365, 375, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972). However, in deciding whether the rationale of McKart or of McGee controls on the issue of exhaustion, it is our opinion that it is crucial to the integrity . of the System to require in cases of allegedly aberrant behavior by a local board in improperly classifying a registrant, when not based on the uniform application of a duly adopted controlling regulation as in Oestereich, that the Selective Service System itself be given a chance to deal with the mistake and rectify it through its appellate procedures. As the Court said in McGee v. United States, supra, 402 U.S. at 484, 91 S.Ct. at 1568, “After McKart the task for the courts, in deciding the applicability of the exhaustion doctrine to the circumstances of a particular case, is to ask ‘whether allowing all similarly situated registrants to bypass [the administrative avenue in question] would seriously impair the Selective Service System’s ability to perform its functions.’ 395 U.S., at 197.” In the present ease, we think that that question must be answered in favor of requiring exhaustion. This does not mean that such exhaustion would have to be required in a case involving habeas corpus or criminal defense. The balance is different and we do not pass on this question other than to note that the balance may lead to a different result since the threat to the integrity of the System is substantially less in that type of case as noted by Congress when it passed § 10(b)(3) barring most preinduction review. We rest our decision on one further basis. As the Court noted in McKart, “[c]ertain very practical notions of judicial efficiency come into play as well. A complaining party may be successful in vindicating his rights in the administrative process. If he is required to pursue his administrative remedies, the courts may never have to intervene.” 395 U.S. at 195, 89 S.Ct. at 1663. Here, we find no reason for thinking that the Appeals Board would have let this allegedly improper reclassification stand if Kochlacs had shown that his case was actually identical to Oestereich. Thus, when we read the considerations of efficiency in pari materia with those of exhaustion and the congressional disfavor of preinduction review, we believe that exhaustion is also mandated in the present ease. Once again, the balance is substantially different in a case where § 10(b)(3) is not concerned. Further, the balance might be different if the case were like Oestereich’s, where the local board and the appeals board were operating under a presumably valid regulation and thus the challenge was not to aberrant board behavior but to the process itself. Finally, we sense no compelling interest in granting access to the courts in situations where the relief sought is .readily available through more expeditious and less expensive administrative procedures, particularly where there is a basis for the thought that the courts are being used, inter alia, because of their greater exposure to the news media as a vehicle to publicize views, no matter how sincerely those views may be held. For the reasons set forth hereinbefore, the judgment of dismissal is affirmed. Affirmed. FAIRCHILD, Circuit Judge (concurring in part, dissenting in part). Respectfully, I would reverse the dismissal as to Kochlacs, and affirm in all other respects. . The Government's motion to dismiss asserted that the court lacked civil jurisdiction over the subject matter pursuant to 50 U.S.C. App. § 460(b)(3), § 10(b) (3) of the Selective Service Act, and that the complaint failed to state a claim upon which relief can be granted. Rule 12(b) (1) and (6), Fed.R.Civ.P., was the basis of the respective points. In its ruling sustaining the motion, the district court indicated that the plaintiffs lack standing, thereby apparently finding § 10(b) (3) applicable. Subsequently, the court also indicated that the comidaint had been dismissed because it did not state a cause of action. While a motion to dismiss is ordinarily directed to the allegations of the complaint and if a claim for relief could conceivably be proved thereunder the motion should not be granted, here the district court in its order of dismissal did refer to the “pleadings, briefs, and affidavits” spread of record before the court. Affidavits were filed in support of plaintiffs’ motion for a temporary injunction. In our review, we have considered not only the allegations of the complaint but matters advanced by plaintiffs in the affidavits and brief. These matters, of course, reflect upon the aspect of whether a claim for relief could conceivably have been proved. . Subsequent to the filing of the suit a change of Selective Service Regulations placed theology students in a deferred 2-D classification while ministers would remain in a 4-D exemption status. For the purposes of this appeal we do not consider the distinction of significance, Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 463, 90 S.Ct. 661, 24 L.Ed. 2d 653 (1970), and therefore shall collectively refer to the plaintiffs, as they have in their complaint, as being entitled to a 4 — D classification. . This provision was in the Act prior to the 1971 amendments and was carried over by those amendments into the present law. . The companion case to Oestereich, Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968), upheld the constitutionality of § 10(b) (3) as a bar to preinduction judicial review in cases in which the draft board had exercised its statutory discretion in evaluating the evidence of the registrant’s conscientious objector claim. . In Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970), the registrant sought preinduction review of his local board’s punitive reclassification of him from a student deferment. Breen appealed his reclassification but, while that appeal was pending, sought an injunction in the district court against any possible induction. The district court dismissed for want of jurisdiction, not mentioning failure to exhaust the administrative appeals remedies. However, during the pendency of Breen’s appeal to the Court of Appeals, the Selective Service Appeal Board ruled against him and upheld his reclassification. We believe that this action mooted any possible claim by the Government that Breen was barred from preinduction review for failure to exhaust his administrative remedies. In Breen, it was arguable until the decision of the Supreme Court whether or not Oestereich controlled. . In Fein v. Selective Service System Local Board No. 7, 405 U.S. 365, 92 S.Ct. 1062, 31 L.Ed.2d 298 (1972), the Government virtually conceded that Fein had a valid defense if he refused induction, yet it opposed vigorously allowing that defense to be raised by preinduction review. The Court accepted this distinction and denied such review. 405 U.S. at 380, 92 S.Ct. 1062.

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Caselaw Access Project

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UNITED STATES of America, Plaintiff-Appellee, v. Roy Ernest DAY, Defendant-Appellant. No. 72-1898. United States Court of Appeals, Sixth Circuit. Argued Feb. 6, 1973. Decided April 5, 1973. George I. Cline, Morehead, Ky., for defendant-appellant; George I. Cline, Diederich, Cline & Wilhoit, Morehead, Ky., on brief. Kenneth P. Glover, Office of Regional Counsel, Bureau of Alcohol, Tobacco and Firearms, Cincinnati, Ohio, for plaintiff-appellee; Eugene E. Siler, Jr., U. S. Atty., E. D. Kentucky, James Cook, Asst. U. S. Atty., E. D. Kentucky, Lexington, Ky., on brief. Before PHILLIPS, Chief Judge, LIVELY, Circuit Judge, and YOUNG, District Judge. Honorable Don J. Young, United States District Judge for the Northern District of Ohio, sitting by designation. PHILLIPS, Chief Judge. Appellant, Roy Ernest Day, was convicted in May 1972, after a jury trial, of dealing in firearms without a license. 18 U.S.C. § 922(a)(1). At the same trial, he was also convicted of five counts of receiving and possessing firearms in interstate commerce. 18 U.S.C. App. § 1202(a)(2). Day was sentenced to a total of five years imprisonment and fines totalling $10,000. The evidence elicited at trial showed that, on four separate occasions in early 1970, Day sold a total of seven handguns to Special Investigator Charles H. Stone of the Alcohol, Tobacco and Firearms Division of the Treasury Department. All of the sales took place in Day’s home in Morehead, Kentucky. A search warrant, obtained by Treasury agents after relating the above mentioned four sales in an affidavit to a United States Commissioner, was executed on March 20, 1970, at which time a total of 96 firearms, worth about $12,000, were seized from Day’s home and adjacent house trailer. Sixty of the guns were new hand guns still in the manufacturer’s original packages. There also was testimony from Day himself on cross-examination that he had sold at least one other gun to at least one other person. During the trial, the Government called as one of its witnesses Special Investigator Sylvester Yockey of the Alcohol, Tobacco and Firearms Division. The apparent purpose of Yockey’s testimony was to show that the guns possessed by Day had been manfactured outside the state of Kentucky and had moved in interstate commerce before Day possessed and received them. Two separate and distinguishable types of testimony were offered by Yockey. First, he testified where the guns were manufactured and gave testimony, based on a document prepared by the historian of the Smith & Wesson gun manufacturing firm, as to the approximate dates of manufacture of the guns bought by the agents in the sales and seized in the search of Day’s house. The document from which Yockey was testifying listed the various models produced by Smith and Wesson and the serial numbers of the models and the periods during which they had been produced. For example, at one point in his testimony Yockey was asked the approximate date of manufacture of a .38 Smith & Wesson model 12, serial number C951878. He replied as follows: “The .38 Smith and Wesson model 12 was produced by Smith and Wesson from 1948 through 1968. The serial number range started at C-l and ended at C-l,000,000. At the serial number range C-951,878 would appear to be about the first of 1968.” The defense objected to this evidence as hearsay. The objection was overruled. After a trial recess, Yockey testified as to the exact dates of manufacture and shipment of the guns in evidence. Apparently this information was obtained by telephone during the recess from an agent in Yockey’s office and was the result of the investigation conducted under Yockey’s supervision. The report itself was never introduced as evidence by the Government, nor was its introduction or presence ever sought by the defense. On appeal, Day asserts error in his conviction under 18 U.S.C. § 922(a)(1), his conviction under 18 U.S.C. App. § 1202(a)(2), and in the admissibility of certain testimony of Yockey. We examine these contentions separately. I. 18 U.S.C. § 922(a)(1) Conviction. Three contentions are urged upon this court regarding Day’s conviction under § 922(a)(1) for engaging in the business of dealing in firearms without a license. First, Day claims that Congress, in enacting the statute, intended to punish only those who deal in firearms in interstate commerce. His reliance on United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), to support this interpretation of the statute is misplaced. Bass was a decision interpreting § 1202(a) (1) of the Omnibus Crime Control and Safe Streets Act of 1968. Although convictions under one statute often accompany conviction under the other, as in this case, the statutes are not identical and, actually, are quite different. The statute interpreted by Bass makes it a crime for a person in any one of five categories to “receive[s], possesses], or transport[s] in commerce or affecting commerce, . . . any firearm . ” The Supreme Court, in its majority opinion announced by Mr. Justice Marshall, ruled that the phrase “in commerce or affecting commerce” modifies “receive” as well as “possess” and “transport.” The Court held this as a matter of statutory construction on the basis of a reading of the statute and the accompanying legislative history. It is important to note that Bass was based on statutory construction grounds, .not constitutional grounds. The Bass decision and its analysis of § 1202(a)(1) are totally inapposite to the question before this court — the proper interpretation of § 922(a)(1). The statute at issue here provides: “922. Unlawful acts. — (a) It shall be unlawful— (1) for any person, except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms or ammunition, or in the course of such business to ship, transport, or receive any firearm or ammunition in interstate or foreign commerce.” The indictment below made no reference to any interstate nexus and Day claims this was fatal error. He asserts that Congress intended to bar only interstate unlicensed dealing in firearms. He apparently contends that the phrase “in interstate or foreign commerce” modifies “importing, manufacturing or dealing in firearms.” This statute, unlike the section construed in Bass, is not ambiguous. The statutory language is unmistakably clear. Two separate classes of offenses are outlined. One type is the engaging in “the business of importing, manufacturing, or dealing in firearms or ammunition.” The other type of proscribed activity is shipping, transporting or receiving any firearm “in interstate or foreign commerce.” A license is required for both types of activity. Section 922(a)(1) was first enacted as part of Title IV of the Omnibus Crime Control & Safe Streets Act of 1968. P.L. 90-351. It was later re-enacted as part of Title I of the Gun Control Act of 1968. P.L. 90-618. The section is the same in both Acts. Unlike the Bass statute, there is available in the case of § 922(a)(1) clear and convincing legislative history: “Section 922(a)(1). — This paragraph proscribes any person from engaging in the business of importing, manufacturing, or dealing in firearms or ammunition (destructive device) without a license. The prohibition goes to both an unlicensed person engaging in a firearms business and such a person who, in the course of that business, ships, transports, or receives, a firearm or ammunition in interstate or foreign commerce. Thus, the paragraph makes it clear that a license is required for an intrastate business as well as an interstate business. The present Federal Firearms Act (15 U.S.C. 902(a)) merely prohibits the interstate or foreign shipment or receipt of firearms by a manufacturer or dealer unless he has a license.” S.Rep. No. 1097, 90th Cong., 2d Sess., 1968 U.S.Code Cong. & Admin.News, pp. 2114, 2202 (emphasis added). The House report on the same section when it was later passed as part of the Gun Control Act of 1968 reflects the identical Congressional intention: “Section 922(a)(1). — This paragraph proscribes any person from engaging in the business of importing, manufacturing, or dealing in firearms or ammunition without a license. The prohibition goes to both an unlicensed person engaging in a firearms business and such a person who, in the course of that business, ships, transports, or receives, a firearm or ammunition in interstate or foreign commerce. Thus, the paragraph makes it clear that a license is required for an intrastate business as well as an interstate business. . . . ” H.R.Rep. No. 1577, 90th Cong., 2d Sess., 1968 U.S.Code Cong. & Admin.News, pp. 4410, 4418 (emphasis added). There can be no doubt that the Congress intended, and through its words accomplished, the regulation of unlicensed intrastate sales of firearms. Three other circuits have been asked to impose the language of Bass to § 922(a)(1) and have found, as we do, that it is inapplicable. Mandina v. United States, 472 F.2d 1110 (8th Cir. 1973); United States v. Redus, 469 F.2d 185 (9th Cir. 1972); United States v. Ruisi, 460 F.2d 153 (2d Cir.), cert. denied, 409 U.S. 914, 93 S.Ct. 234, 34 L.Ed.2d 176 (1972). The second argument advanced by Day regarding his § 922(a)(1) conviction is that even if Congress intended to punish unlicensed intrastate firearms sales, it was powerless to do so and was acting unconstitutionally. In Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), the Supreme Court analyzed anew the scope of Congressional power to regulate purely intrastate activities under the Commerce Clause. As the Court stated: “The Commerce Clause reaches, in the main, three categories of problems. First, the use of channels of interstate or foreign commerce which Congress deems are being misused, Second, protection of the instrumentalities of interstate commerce, Third, those activities affecting commerce.” 402 U.S. at 150, 91 S.Ct. at 1359. The Perez Court reaffirmed, under the third category of Congressional power, that Congress can constitutionally regulate a class of activities if that class has an effect on interstate commerce. “Where the class of-activities is regulated and that class is within the reach of federal power, the courts have no power ‘to excise, as trivial, individual instances’ of the class.” 402 U.S. at 154, 91 S.Ct. at 1361. See also Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964); United States v. Darby, 312 U.S. 100, 120-121, 61 S.Ct. 451, 85 L.Ed. 609 (1941). At issue in the Perez case was a federal act banning intrastate extortionate credit transactions. 18 U.S.C. § 891 et seq. The Supreme Court, it should be noted, repeatedly has upheld Congressional regulation of purely intrastate activity. United States v. Wrightwood Dairy Co., 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726 (1942) (intrastate milk prices); Mulford v. Smith, 307 U.S. 38, 59 S.Ct. 648, 83 L.Ed. 1092 (1938) (intrastate tobacco markets); Simpson v. Shepard, 230 U.S. 352, 33 S.Ct. 729, 57 L.Ed. 1511 (1913) (intrastate rail rates). As the Supreme Court wrote in the Heart of Atlanta case, supra: “If it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze.” 379 U.S. at 258, 85 S.Ct. at 358. Just as Congress made findings that intrastate credit transactions were part of a class of activities amenable to federal regulation, the Act before this court reveals detailed findings of the interrelationship between the business of selling guns and interstate crime and interstate trafficking in guns. Congress found specifically that: “[0]nly through adequate Federal control over interstate and foreign commerce in these weapons, and over all persons engaging in the business of importing, manufacturing, or dealing in them, can this grave problem (interstate trafficking in firearms) be properly dealt with . ” P.L. 90-351, § 901(a)(3), 82 Stat. 225 (emphasis added). See S.Rep. No. 1097, swpra, at pp. 2163-66. This court is unwilling to strike down these findings. Congress need not make specific findings that there is an effect on interstate commerce by a specific activity. 402 U.S. at 156, 91 S.Ct. 1357. There has been federal legislation regulating interstate commerce in firearms since the Federal Firearms Act, 52 Stat. 1250, was enacted in 1938. This regulation has been upheld by the courts. Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied sub nom., Velazquez v. United States, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718 (1943), rehearing denied, 324 U.S. 889, 65 S.Ct. 1010, 89 L.Ed. 1437 (1945). Congress certainly had the power to regulate intrastate gun sales which have an effect on interstate commerce in firearms. We hold § 922(a)(1) to be constitutional. Accord, Mandina, supra, 472 F.2d at 1114. Day’s final assertion of error regarding his § 922(a)(1) conviction is that there was insufficient evidence presented to the jury that he was “engaged in the business ... of dealing in firearms.” The District Judge in this case instructed the jury that: “Dealer . . . means one that is engaged in any business of selling, repairing or pawning firearms and that business is that which occupies the time, attention and labor of the man for the purpose of livelihood or profit.” This definition of what “engaged in the business” means apparently was borrowed by the District Judge from the decision in United States v. Gross, 313 F.Supp. 1330, 1333 (S.D.Ind.1970), aff’d, 451 F.2d 1355 (7th Cir. 1971). See also Stone v. District of Columbia, 91 U.S.App.D.C. 140, 198 F.2d 601, 603 (1952); cf. Kaneshiro v. United States, 445 F.2d 1266 (9th Cir.), cert. denied, 404 U.S. 992, 92 S.Ct. 537, 30 L.Ed.2d 543 (1971). There is no statutory standard defining “engaged in business.” We hold that this judicial definition is an adequate reflection of the plain meaning of the phrase and approve it. The evidence shows that four separate sales over two months were made by Day to the Government agent. Day admitted on cross-examination to at least one other sale. Ninety-six guns, including 60 in their original packages, were found in the search of the house. It should also be pointed out that the Government agent testified that each time he made one of the purchases, Day told him that he could get him any kind of gun he wanted. This evidence, we hold, was sufficient to show that Day was engaged in the business of selling guns. II. 18 U.S.C.App. § 1202(a)(2) Conviction Day attacks his conviction for possessing guns in violation of § 1202(a)(2). It was established at trial by uncontroverted evidence that Day was dishonorably discharged from the United States Army on April 13, 1945. His objection is not specific but apparently he contends that the punishment of one who was dishonorably discharged from the service over 25 years before possession and receipt of the firearms in question is unreasonable and violative of the concept of equal protection. He also claims that the right to bear arms is somehow fundamental and protected by the Constitution. Day also claims that Congress, in enacting § 1202(a)(2), as part of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, acted without hearings or a committee report. Lacking this, he contends there is no support for legislative findings in § 1201(1) of the Act, 18 U.S.C.App. § 1201 (1), that the possession of firearms by those who have been dishonorably discharged constitutes “a burden on commerce” or the finding in § 1201(3), 18 U.S.C.App. § 1201(3) that it is “an impediment or a threat to the exercise of free speech.” As to the alleged right to bear arms, Day’s claim is meritless. There is no absolute constitutional right of an individual to possess a firearm. United States v. Miller, 307 U.S. 174, 178, 59 S. Ct. 816, 83 L.Ed. 1206 (1939). In Katzenbach v. McClung, 379 U.S. 294, 303-304, 85 S.Ct. 377, 383, 13 L.Ed.2d 290 (1964), the Supreme Court set out the applicable standard under which the Congressional classification here presented must be tested: “[W]here we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.” This court, in Stevens v. United States, 440 F.2d 144, 151 (6th Cir. 1971), examined the validity of the statute forbidding convicted felons from possession of firearms. 18 U.S.C.App. § 1202(a)(1). We upheld this classification. Although Stevens is no longer good law on the statutory interpretation of § 1202(a), in light of Bass, its viability on the constitutional question of whether the Congress can forbid certain classes of people from possessing firearms is hereby reaffirmed. Other courts have also upheld the statute’s bar of possession of a firearm by a convicted felon in the face of equal protection attack. United States v. Synnes, 438 F.2d 764, 771 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972); United States v. Rubino, 320 F.Supp. 613 (M.D.Pa.1970); United States v. Wiley, 309 F.Supp. 141 (D.Minn.1970), aff’d, 438 F.2d 773 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 686, 30 L.Ed.2d 657 (1972). Possession of a firearm by a person dishonorably discharged from the Armed Services, while not as dangerous, perhaps, as possession by a convicted felon, is sufficiently risky to justify Congressional regulation. As Senator Russell Long stated in the debate on the bill on the floor of the Senate: “[T]his is a matter of saying that if he cannot be trusted to carry arms for Uncle Sam, he cannot be trusted to carry arms on the streets. This kind of person is part of the criminal element in many instances, the kind of person who does not know how to behave properly, and is a hazard to others when he possesses firearms.” Stevens, supra, 440 F.2d at 155. Although it is true, as Day contends, that there were no committee reports on § 1202(a), there was considerable debate on the floor of the Senate. This is set out at 440 F.2d 152 as an appendix to this court’s Stevens opinion. We hold that the finding by Congress that possession of guns by those dishonorably discharged from the armed services is hazardous was rational. We decline to overturn it. Day voices concern that although he was convicted under § 1202(a) for possession of these guns in 1970, his discharge under less than honorable circumstances took place 23 years before the enactment of the statute. Viewing this concern as an allegation that the statute was an ex post facto law, we reject it. United States v. McCreary, 455 F.2d 647, 648 (6th Cir. 1972). Day’s assertion that the statute is somehow fatally tainted by lack of hearings or committee reports is meritless. III. Yockey’s testimony Day objects to the admission of Special Investigator Yockey’s testimony regarding the approximate dates of manufacture and then the exact dates of manufacture and of shipment in interstate commerce. It is asserted that this testimony was inadmissible hearsay. The Government seeks to justify the Yockey testimony concerning the approximate dates of manufacture of the guns by claiming that, as an expert witness, Yoekey had a right to testify from hearsay documents in the expression of his opinions. Jenkins v. United States, 113 U.S.App.D.C. 300, 307 F.2d 637 (1962) (in banc); but see McCormick, Law of Evidence, § 15. The Government seeks to justify the admission of the testimony as to the precise dates of manufacture and shipment by reference to 28 U.S.C. § 1732, which is a codification of the business records exception to the hearsay rule. The Government claims that the investigative report was part of the business of the Alcohol, Tobacco and Firearms Division of the Treasury Department. This court finds it unnecessary to decide the hearsay question, however, because we find the testimony objected to irrelevant and its admission not prejudicial. The apparent purpose of the testimony was to show that the guns found in the possession of Day and sold by him to the agent had moved in interstate commerce and had moved after the effective date of § 1202(a)(2), which was June 19, 1968. This was apparently thought necessary to satisfy the requirement of Bass, supra, that there be shown in a § 1202(a) prosecution for possession and receipt of firearms a “nexus” with interstate commerce. As the Bass Court stated: “. . . the Government meets its burden here if it demonstrates that the firearm received has previously traveled in interstate commerce.” 404 U.S. at 350, 92 S.Ct. at 524. If there is competent evidence to show that the guns possessed and received by the defendant were manufactured in a state outside of Kentucky, the state of possession in the present case, the conclusion is inescapable and the inference is permissible that the gun has traveled in interstate commerce before reaching the defendant. It should be noted that there is no requirement that the interstate commerce be shown to have been directly to Day. United States v. Brown, 472 F.2d 1181 (6th Cir. 1973). In this case, there was competent evidence before the jury to indicate that the guns found in appellant’s possession were manufactured in Hartford, Connecticut, and Springfield, Massachusetts. Thus, the interstate nexus requirement of Bass was satisfied. It should be pointed out that the testimony placing the date of manufacture and interstate commerce movement of the guns after the effective date of the statute was similarly unnecessary. There is no requirement that the guns move in interstate commerce after the effective date of the Act. United States v. Oclit, 343 F.Supp. 447 (D.Hawaii, 1972). The statute punishes the possession, which obviously took place after the Act was passed, not the interstate commerce. Affirmed. . 18 U.S.C. § 922(a) (1) reads: “922. Unlawful acts. — (a) It shall ' be unlawful— (1) for any person, except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms or ammunition, or in the course of such business to ship, transport, or receive any firearm or ammunition in interstate or foreign commerce.” . 18 U.S.C.App. § 1202(a)(2) reads: “1202. Receiving, possession, or transportation of firearms by certain persons — Definitions.— (a) Any person who— $ $ $ >H (2) has been discharged from the Armed Forces under dishonorable conditions, or $ * * * $ and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act [June 19, 1968], any firearm ■ shall be fined not more than $10,000 or imprisoned for not more than two years, or both.” . Although we find it unnecessary to rule on the question of whether the special investigator was actually qualified as an expert at the trial, it should be pointed out that there was no declaration ■ of the witness as an expert and when the District Judge overruled the defense objection to Yockey’s testifying from the Smith & Wesson document, he did not do so on the basis of Yockey’s alleged status as an expert witness. In fact, the Government made no request at the trial to qualify Yoekey as an expert witness. It is extremely doubtful whether the subject matter of Yockey’s testimony, the dates of manufacture of the guns, was amenable to -expert testimony. . The Government does not explain how § 1732, which permits introduction of a “writing or record” into evidence, would permit an oral statement of a telephoned report as evidence.

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Caselaw Access Project

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Eugene M. BAZAAR et al., Plaintiffs-Appellees, v. Porter FORTUNE et al., Defendants-Appellants. No. 72-2175. United States Court of Appeals, Fifth Circuit. Feb. 27, 1973. Rehearing and Rehearing En Banc Granted May 9, 1973. Heber Ladner, Jr., Sp. Asst. Atty. Gen. of Miss., A. F. Summer, Atty. Gen., Jackson, Miss., for defendants-appellants. William P. Joyner, Alix H. Sanders, Oxford, Miss., for plaintiffs-appellees. Before JOHN R. BROWN, Chief Judge, and THORNBERRY and MORGAN, Circuit Judges. LEWIS R. MORGAN, Circuit Judge: This appeal grows out of a confrontation between students and officials at the University of Mississippi over the content of a certain issue of the student literary publication Images. The District Court for the Northern District of Mississippi entered a temporary restraining order prohibiting the University from interfering with the publication and distribution of this magazine. This court, to avoid publication which would moot the serious legal issue involved, issued a stay of that temporary restraining order pending review of the case on the merits. After careful consideration, we affirm the decision of the district court ordering the University of Mississippi not to interfere with the publication and distribution of this magazine. I. The magazine in question, Images, is a University chartered and recognized student publication at the University of Mississippi. Since its conception in 1969, Images has published several issues on a more or less irregular basis. The magazine was designed for presentation of student-written and student-edited literary compositions. The relationship of the University of Mississippi to this student publication has been gleaned by this court after careful examination of the record. Interdepartmental communications between officials ,of the University establish that Images was to be a student literary journal published with the advice of the English department. The publication was to be reproduced at the University’s central duplicating facility, with an anticipated press run of 500 copies. The 1969 costs for this service was set at approximately $300.00. From the outset it was understood by all that the amounts collected from sales of the magazine would be used to offset, hopefully in toto, this printing cost. Student editors and faculty members would, of course, contribute their time and effort without remuneration. There was a further provision that in the event the sales of the magazine fell short of recouping the total publication cost, the English department would underwrite any loss from its current activities budget. There is also evidence that the magazine, at least for this past academic year, received a $400.00 grant from the Associated Student Body Activities Fund, which is, in turn, collected from student fees. In actual operation, the magazine was staffed and run by students with editorial advice from an English department appointed adviser, Dr. Evans Harrington, Professor of English at the University. The magazine was closely connected with a course in creative writing maintained as a regular portion of the English department’s curriculum and taught by Professor Harrington. It was intended that the core of student materials for publication in Images come from student efforts in this creative writing course with the possible use of other student submitted materials. The magazine was apparently not designed for widespread circulation, but rather was to be limited to approximately 500 copies per issue and to be offered for sale primarily to students at the University through University bookstore facilities. II. Until the issue of Images set for publication in the spring of 1972, there had apparently been no conflict between University officials and the magazine’s editorial board and no attempts of censorship or control by the University’s hierarchy. After the spring issue had been edited into final form and sent to central duplicating, however, a dispute arose. The superintendent of the University’s printing facilities informed Chancellor Porter Fortune that the University should take a close look at the stories to be published. The Chancellor then acted to hold up binding and distribution of the spring issue. He formed a committee consisting of the deans of the various University departments which was to determine if the material in the magazine was suitable for publication. It is not very clear in the record what types of hearings or evaluation this committee gave the magazine. There are allegations that it consistently refused to receive statements from the students or from their adviser, Professor Harrington. This panel of deans decided that publication would be “inappropriate”, apparently basing its decision on matters of “taste”. The University then refused to finish binding the journal or allow its distribution. The reluctance of the University to allow the publication and distribution of this magazine centers on two short stories which are contained in the issue. Both stories were originally written by a student in the creative writing course for presentation and criticism by the class. The themes of the two stories are interracial love and black pride. The author of the stories is an 18-year-old regularly-enrolled black student at the University of Mississippi. In framing its objections to the stories, the University was careful to disclaim any unhappiness with the presented themes. Rather, the University based its entire objection to both stories solely upon the grounds of the inclusion therein of what must be termed some quite “earthy” language. It appears to be the University’s position that because of its connection with this magazine it has the right to prevent publication and distribution solely because it has determined that this language is inappropriate and in bad taste. III. It is necessary to have a clear grasp of the nature of the stories, their characters, and the manner in which the language found objectionable by the University is used. The objectionable portions consist of what are commonly known as “four-letter words”, often colloquially referred to as “obscenities”. They include use of “that four-letter word” generally felt to be the most offensive in polite conversation. While the University does not specify which words it most objects to, we assume that this epithet and its derivatives are high on the list. We feel that it is imperative, however, to stress the manner in which these words are used and the alleged literary justification for their use. The protagonist of each story is a black male growing up in and confronted by a basically white society. Each of the two “heroes” is suggestive of a latter-day, black Holden Caulfield, struggling to find himself in the world. As what could be termed a natural and necessary phase of character development, the “heroes” of these stories occasionally talk and think in a vernacular which is definitely not suited for parlor conversation. It must be realized that these characters are young blacks who often express themselves by using somewhat crude epithets of the street. The language, while admittedly unacceptable in some quarters, is readily recognized as commonplace in various strata of society, both black and white. The tendency to use such language would seem more prevalent among young males in less-favored social groups of all races. In short, it could well be considered strained and artificial for these characters to speak and think in proper prep school diction. We also note that the language is not used in a manner which would be termed “pandering”. The words are not used in a sexual sense nor are there vulgar passages describing such activities. Throughout the work, the “offensive” words are usually used as modifiers strictly included for their effect and to convey a mood. They are not used in any literal sense. While some may feel that they are used a bit too often, this is a difficult matter to judge and rests largely with individual taste. Certainly, it seems an unsuitable standard for governmental censorship. Thus, the sole question presented in this case is whether or not a university, under these circumstances, may prevent publication and distribution of a student publication solely on grounds of “taste” and “appropriateness” merely because certain words appear therein, no matter in what context and for what reasons the words are used. IV. It is well established that not all rights to freedom of speech and the press are lost by those who attend state-supported colleges and universities. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972). In this case it has become incumbent on the University of Mississippi to justify the censorship it has sought to exercise herein. Despite several rather ingenious arguments put forth by the University, we feel their efforts have failed. We find it necessary to address only two specific issues in this opinion. First, does the University here have the status of a private publisher with the right to choose what it will or will not publish. Secondly, if this special status cannot be afforded the University, has the University demonstrated sufficient “special circumstances” to justify censorship. The University as Publisher The facts before us in this case do not establish the University’s claim that it here stands in the shoes of a private publisher. The evidence shows that the University’s financial connection with this endeavor was somewhat tenuous. There was no special appropriation for this magazine. Rather, as envisioned from the outset, it was intended to be self-supporting, with the University supplying printing facilities, more or less on open account, with the costs for such services to be repaid from sale proceeds. The English department, it is true, agreed to underwrite any loss out of current funds, but this was expected to be irregular, small, and indeed hopefully never necessary. Furthermore, part of the financing for this current year came as a separate grant from the student activity funds of the Associated Student Body. As to considerations other than monetary, the University points to the fact that this publication will bear a statement saying that it is published by students at the University with the advice of the English department. We do not feel that this simple statement, even if joined with the somewhat speculative financial connection, is enough to equate the University with a private publisher and endow it with absolute arbitrary powers to decide what can be printed. Moreover, there is a more basic reason why the University cannot be accorded the omnipotent position it seeks. The University here is clearly an arm of the state and this single fact will always distinguish it from the purely private publisher as far as censorship rights are concerned. It seems a well-established rule that once a University recognizes a student activity which has elements of free expression, it can act to censor that expression only if it acts consistent with First Amendment constitutional guarantees. As was stated in American Civil Liberties Union of Virginia v. Radford College, 315 F.Supp. 893 (W.D.Va., 1970): There have been a number of cases in the last several years involving Constitutional challenges on first amendment grounds to the actions of college administrators. A perusal of these cases makes clear a recurring theme that once a public school makes an activity available to its students, faculty, or even the general public, it must operate the activity in accord with first amendment principles Neither can a state university support a campus newspaper and then try to restrict arbitrarily what it may publish, even if only to require that material be submitted to a faculty board to determine whether it complies with “responsible freedom of the press”. Id. at 896-897. Antonelli v. Hammond, 308 F.Supp 1329 (Mass.1970), involved issues strik ingly similar to the ones, present in thi, case. Students at Fitchburg State College, a state-supported institution of high learning in Massachusetts, published, with University support, a campus newspaper, The Cycle. In that case, the student newspaper published a story, “Black Mooehie”, written by Eldridge Cleaver. The paper’s usual printer, whose daughter was a student at the college, read the article prior to printing and objected strenuously to its content. He brought this matter to the attention of the President of the University who held up this issue of The Cycle. The primary reason for objection to the article given by the University was that it contained “obscene” language. In addition to preventing publication of this issue of The Cycle, the President of the University set up an advisory board which would have to give its prior approval to all articles and materials intended for publication in the newspaper. The court in Antonelli expressly considered the claim of the University that it had the power to censor because it paid the funds for publication of The Cycle: We are well beyond the belief that any manner of state regulation is permissible simply because it involves an activity which is part of the university structure and is financed with funds controlled by the administration. The state is not necessarily the unrestrained master of what it creates and fosters. Thus in cases concerning school-supported publications or the use of school facilities, the courts have refused to recognize as permissible any regulations infringing free speech when not shown to be necessarily re- ' lated to the maintenance of order and discipline within the educational process. See, e. g. Dickey v. Alabama State Board of Education, 1967, N.D. Ala., 273 F.Supp. 613; Snyder v. Board of Trustees of University of Illinois, 1968, N.D.Ill., 286 F.Supp. 927; Brooks v. Auburn University, 1969, N.D.Ala., 296 F.Supp. 188; Zucker v. Panitz, 1969, S.D.N.Y., 299 F.Supp. 102; Smith v. University of Tennessee, 1969, E.D.Tenn., 300 F.Supp. 777; Close v. Lederle, 1969, D.Mass., 303 F.Supp. 1109. Id. at 1337. The principles enunciated in these two cases have been derived from a long line of legal opinions dealing with the struggle between college students and university administrators over matters involving freedom of speech and expression. The cases involving student publications are quite similar to, and owe> much of their rationale to, those cases which have been characterized as “open forum” cases. This circuit has recognized the strong constitutional guarantees where an attempt was made by a university to prevent an invited speaker from giving an address by simply refusing to pay for his appearance. Brooks v. Auburn University, 5 Cir. 1969, 412 F.2d 1171. The University has apparently conceded that the above rule is indeed the governing standard. The University, however, seeks to distinguish this literary publication, Images, from a campus newspaper or campus annual. The counsel for the University admitted at oral argument that it was the University’s position that they could not censor either the campus newspaper, The Daily Mississippian, or the campus annual, The Ole Miss. In light of this frank admission, we are somewhat at a loss to see the distinction between the magazine Images and either of these publications. Both the newspaper and annual are paid for through University administered funds. In fact, it is our understanding that both these other publications, while paid for by students, are in reality financed by a non-waivable fee which is paid by every student as part of his regular tuition fees at the time of his enrollment for the current term. Both of those publications are clearly, on their face, identified with the University. The University attempts a distinction by pointing out that here Images was to be published with the “advice” of the English department, although it does not show any evidence that the other publications are not similarly subject to “advice”. They go so far as to suggest that this means it will be identified as speaking for the English department and thus the University. We do not feel this factor is very relevant. The advice contemplated was directed at helping the students in choosing material of literary merit for publication and, indeed, in this case the material objected to was approved by the English department’s appointed adviser for the magazine, who testified in this case on behalf of the student editors, author and magazine. Thus, we see no difference between this and other University publications which the University concedes, quite correctly in our opinion, that it cannot censor except within constitutional limitations. The literary magazine, Images, is certainly within the broad class of publications to which the broad rule enunciated in Antonelli was designed to apply. Special Circumstances Having disposed of any claim by the University that it has an arbitrary power because of its relationship with Images to censor its content, we now turn to the issue of whether the censorship imposed in this case was justified under the rationale of “special circumstances” permitting the state to circumscribe certain activity which would otherwise fall within the generally protected area. We are convinced that no such special circumstances exist in this case. There has been no claim that publication of this magazine containing these short stories would or could lead to any significant disruption on the University campus. Basically, the special- circumstances which the University seeks to have this court recognize consist of matters of taste and the right of the University to prevent activities which it would feel would lead to criticism of it from outside sources. There was also, at one time, a claim by the University that publishing these articles might subject it to state prosecution under the state obscenity laws. The University apparently never attempted to show that the materials herein were legally obscene and it appears now that they have dropped this contention altogether on appeal. The court is satisfied that these stories as written do not meet the standard of legal obscenity. We do not, however, automatically say that the University is in all cases forbidden from interference in First Amendment cases unless it can show that a legal definition of obscenity is satisfied. We simply do not have to reach that issue in the disposition of this case. Assuming arguendo that the University does indeed have a power to impose some restrictions on language which does not measure up to legal obscenity, we do not feel that the language objected to in this case, used as it is, would give sufficient grounds for interference. This analysis will also be sufficient to dismiss the “taste” and “appropriatenéss” arguments of the University. We have previously pointed out the nature of the words involved in these short stories and the manner in which they are used by the author. We feel that we are past the point in this country today where the mere use of any single word in a public arena can be immediately branded as so tasteless or inappropriate that its use is subject to unbridled censorship or restriction by government authority. The short stories involved in this case, as noted contain the word which has historically been viewed as the “worst” obscenity. With regard to this very four-letter word, the Supreme Court has stated that: While the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because government officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual. Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1971). In that same opinion, the Court noted another factor which is relevant in this case. The Court refused to sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated. * * * * -X- -X- Finally, and in the same vein, we cannot indulge in the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results. Id. at 26, 91 S.Ct. at 1788. As we have previously noted in this opinion, much of the literary justification for the use of these words in the short stories rests on the emotive feeling and mood they are designed to create. They bear both on the development of the central characters and also may be read to serve as part of the comment which this author intends to make to his reader through these stories. Thus, we feel it would be extremely difficult to censor these words merely for their presence in the story because of their possible relation to the themes which the author strives to present. Furthermore, we cannot help but take note that these words have been recognized as not that unusual when found in connection with college students and use on college campuses. In fact, at the hearing below, one of the witnesses, a student at the University of Mississippi, stated that he had heard all of the words contained in these short stories spoken on' campus by University of Mississippi students, and that, indeed, he believed he had heard them spoken by faculty members. The University also admits that commercial publications are sold on the University campus which contain these words and other words which it would classify as “distasteful”. For instance, the evidence establishes that the magazine Playboy is sold on campus at various bookstore facilities. Furthermore, the University admits that the Kudzu, an “underground” newspaper which admittedly contains “ragged” language similar to that found objectionable in these stories, had been previously sold without interference on the University campus. The only attempted distinction by the University is that here they are more connected with this magazine since it is published by students and with the advice of the English department. As noted, we do not feel that that mere distinction waives all constitutional privileges of the students involved. Finally, the court feels that it is extremely significant that the University admits that works in its library and, indeed, works that are assigned to students as required reading for courses contain the same words, used in much the same way, as are found in these stories to which the University now objects. It is also admitted that these same words objected to by the University here appear frequently in well-respected literature, especially that of the twentieth century. These words are often found in the works of such accepted literary figures as J. D. Salinger, James Baldwin, Norman Mailer, Bernard Malamud, and Truman Capote, to name but a few. Similar language is also abundant in many recent best-sellers, including Love Story, The Godfather, Portnoy’s Complaint, The Adventurers, and Valley of the Dolls. Even the works of William Faulkner, an author indelibly associated with Oxford and the University of Mississippi, contain a high number of “obscenities” much like the words under attack here. Thus, here the University is seeking to restrain the use of certain words which it acknowledges are often used in literary compositions and words which are found in the books it offers for student reading through its library. Finally, we note that the testimony established that the University goes so far as to prescribe as required reading at least one work which includes most, if not all, of the words found in these short stories. It also contains the word to which the University, we would surmise, most strenuously objects. Professor Harrington testified that as part of his course in the twentieth century novel, he assigned as required reading the recognized literary masterpiece Ulysses, written by James Joyce. We note that once, years ago, that work was also subject to attempts at censorship by governmental authorities in this country. See United States of America v. One Book Called “Ulysses”, 5 F.Supp. 182 (S.D.N. Y., 1933), aff’d. United States v. One Book Entitled Ulysses by James Joyce, 2 Cir. 1934, 72 F.2d 705. Anyone familiar with the soliloquy of Molly Bloom will recall that her statement includes many of the same words found objectionable here. Thus, students who take this course in modern novels are required to read at least one work which includes the same or very similar words to the ones here condemned. This, indeed, begins to become a strange double standard. Since the University is relying primarily on a claim that these stories are too tasteless and inappropriate to be connected with the University, merely because of the words which appear in the stories, we find that justification particularly hard to accept as compelling because of the admitted facts we have set out above. There has been testimony by a literary expert that these stories have literary merit and that was also the collective judgment of the student editorial board. The University has not really attacked literary merit, but has instead focused its argument on the mere presence in the story of these words. Yet these words appear and are more or less forced upon any student who takes certain courses at the University. It does not seem necessary to get into a discussion of whether or not the stories of this author have as much literary merit as a novel by James Joyce. That is irrelevant to the consideration of the issue as it has been framed by the University itself. We do not see how the University can draw a line, based on the grounds it asserts, between these short stories, which are intended only for those persons, mostly students and under five hundred in number, who pay one dollar for the issue, and a novel which students are required to buy and read in order to receive course credit. While the anomaly present in this factual situation is not really necessary for the legal opinion we render in this case, we think it should be pointed out because it illustrates the folly in making matters of free speech and word usage turn on a state’s interpretation. As far as the words are concerned, the words themselves, their mere presence can be no less offensive because they appear in a recognized literary triumph rather than in the first attempts by one who 6ould be characterized a budding young author, out to “forge in the smithy of [his] soul the uncreated conscience of his] race”. Finally, the University attempts to invoke the special consideration that publication of this story, as long as it acknowledged any recognized connection with the University of Mississippi, would endanger the current public confidence and good will which the University of Mississippi now enjoys. See Duke v. North Texas State University, 5 Cir. 1972, 469 F.2d 829. While we recognize that such considerations can go into the determination of whether a given interference with freedom of speech is justified, we feel it is also very clear that use of such a rationale should be handled gingerly and applied only in what can be characterized as most extreme eases. We do not read Duke as saying that a university has the right to restrict any activity involving free speech or expression merely because it might cause adverse reaction in the newspapers or because some segment of the state’s population might be unhappy with the university’s actions. Duke was itself a very close case, and we feel it should be read restrictively to apply only where the actions involved are quite extreme in light of the educational purposes of a university. We see no such factors here. As a final word, we can only reiterate that speech cannot be stifled by the state merely because it would perhaps draw an adverse reaction from the majority of people, be they politicians or ordinary citizens, and newspapers. To come forth with such a rule would be to virtually read the First Amendment out of the Constitution and, thus, cost this nation one of its strongest tenets. It would be unthinkable to say that the University of Mississippi could censor and forbid publication of an article in its law school journal on the grounds that the article concerned some sensitive issue, such as forced busing or abortion, which, because of the resolution reached in the article, the University determined would create an overwhelmingly adverse reaction among members of the bar and the public. The First Amendment simply took the power to make such judgment out of the hands of the state. The University alleges that it here is acting to preserve what it considers an acceptable level of decency in this publication. That statement, however, illustrates the core issue of this problem — what level of “decency” and who should decide when it has been reached. As previously noted, the use of the language is, at the very least, arguably justified in a literary context. It is not used suggestively nor does it approach pandering. The words are not being forced on an unwilling audience through public display. There is no chance of violent disruption from their use. The nature of the language is no longer really that unusual in current literature, films, and conversation — especially among the young. The trend to its use, both in spoken and written, arts, while not to be commended, certainly must be recognized. “An acceptable level of decency” is obviously not a static proposition nor one easily determined. One needs only look around to see that things considered horribly “indecent” a few years ago are quite commonplace today. It is for this reason that, where modes of expression are involved, the First Amendment casts a heavy burden on any governmental body which seeks to censor on the grounds of “public decency”. As the Supreme Court stated in Cohen v. California, supra: Against this perception of the constitutional policies involved, we discern certain more particularized considerations that peculiarly call for reversal of this conviction. First the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. 403 U.S. 15 at 25, 91 S.Ct. 1780, at 1788. Thus, we conclude here that the University has not shown sufficient special circumstances to justify the interference it is attempting to impose on the full exercise of First Amendment freedoms. As previously noted, we do not in this opinion mean to say that no language or conduct short of legal obscenity can be regulated by a college or university when a student literary publication is involved. We do not have to reach that issue here. We are satisfied that on the facts of this case the University has not demonstrated that the language used in parts of these stories is so unusual, so condemnatory, that the requisite special circumstances have been achieved. In closing, we must take note of the historical role of the University in expressing opinions which may well not make favor with the majority of society and in serving in the vanguard in the fight for freedom of expression and opinion. As the United States Supreme Court has recently reaffirmed: The precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools”. Shelton v. Tucker, 364 U.S. 479, 487 [81 S.Ct. 247, 5 L.Ed.2d 231] (1960). The college classroom with its surrounding environs is peculiarly the “market place of ideas” and we break no new constitutional ground in reaffirming this Nation’s dedication to safeguarding academic freedom. Keyishian v. Board of Regents, 385 U.S. 589, 603 [87 S.Ct. 675, 17 L.Ed.2d 629] (1967); Sweezy v. New Hampshire, 354 U.S. 234, 249-250 [77 S.Ct. 1203, 1211, 1 L.Ed.2d 1311] (plurality opinion of Mr. Chief Justice Warren), 262 [77 S.Ct. 1217] (1957) (Mr. Justice Frankfurter’s concurring opinion). Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 2346, 33 L.Ed.2d 266, 279 (1972). Therefore, we feel it is incumbent on this court to deny the University the power to restrict what must be recognized as a legitimate manner of expression on the basis of the justifications it seeks to assert in this case. From our careful consideration of this case, we note with some sadness an undercurrent which permeates this whole controversy. We see no real spirit of compromise or accommodation on the part of either side. Throughout the record in this case we sense an air of confrontation, derived both from the actions of the students and the adminis-. tration. The students are accused of deliberately taunting the University, throwing down a gauntlet which they knew the University must accept. For its part, there are numerous allegations, generally admitted, that the University and its chosen committee repeatedly refused to hear the students or their advisers, and to consider their points of view. It would seem to this court that perhaps a greater spirit of accommodation could have avoided the necessity of a costly and time-consuming resort to the federal courts. Perhaps some mutual editing could have removed much of the offensiveness which the University objected to. Perhaps the well-known practice of initial letters followed by blanks or dashes could have conveyed the meaning without unduly upsetting the University officials or the author. Perhaps a stated disclaimer as to content on the part of the University would have been sufficient. But from the record before us, neither side really made an attempt at compromise. This is an unfortunate situation, especially where the conflict is between a University and its students and between censorship and expression. For the reasons stated in this opinion, we hold that the district court was correct in granting the order restraining the University from further interference with the printing of the Magazine Images and that order is hereby Affirmed. ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC. Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges. BY THE COURT: A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc, It is ordered that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs. . There was evidence that there was a mailing list of about 25 subscribers with the rest of the magazines to be sold on campus. It was admitted that commercial success was not an aim of the publication. . Evidence at the hearing below established that the University had no rules or regulations on the content of student publications, and that the University had never in the past attempted to prevent publication of a student periodical. . In addition to these stories, the issue contained several poems and illustrations. . Although only eighteen, the author was classified as a first semester junior. . Salinger, J. D., The Catcher in the Rye. . The only viable difference between the Antonelli case and the one at bar is related to this advisory board. We feel that difference is not relevant to the legal issues involved. One other factual difference which bears on the legal issue is that in Antonelli the article and issue of The Oyele in dispute was, indeed, published by another printer at the expense of private individuals and then distributed on the campus. Here the restraints imposed by the University have continued to hold publication of this issue of Images in abeyance. . Professor Harrington, author of one novel and several shorter works of fiction, testified as to literary merit and style at the hearing below. . We note that at least one Circuit Court of Appeals has suggested that one of the objectionable terms present in the stories, literally referring to an incestuous son but more commonly used as an abusive epithet, is not that unusual or condemnatory when it reaches the tender young ears of high school seniors. Judge Bailey Aldrich, writing for the First Circuit in Keefe v. Geanakos, 1969, 418 F.2d 359, addressed a situation involving the possible punishment of a high school teacher who read an article to a senior class which repeatedly used the epithet referred to above. In speaking directly to the school board’s alleged fear of adverse parental reaction, the learned jurist stated : With regard to the word itself, we cannot think that it is unknown to many students in the last year of high school, and we might well take judicial notice of its use by young radicals and protesters from coast to coast. No doubt its use genuinely offends the parents of some of the students — therein, in part, lay its relevancy to the article. Hence, the question in this case is whether a teacher may, for demonstrated educational purposes, quote a “dirty” word currently used in order to give special offense, or whether the shock is too great for high school seniors to stand. If the answer were that the students must be protected from such exposure, wo would fear for their future. We do not question the good faith of the defendants in believing that some parents have been offended. With the greatest of respect to such parents, their sensibilities are not the full measure of what is proper education. [Footnotes omitted]. Id. at 361-362. . See, e. g., The Catcher in the Rye. . See, e. g., Another Country. . See, e. g., Prisoner of Sex. . See, e. g., The Tenants. . See, e. g., In Cold Blood. . Again we refer to the opinion of Judge Aldrich in Keefe v. Geanakos, supra, note 8, for in that case he was confronted with a situation where the high school library contained at least five separate works by five separate authors which contained the word used in class by the teacher under attack. We can only restate his salient comment: Such inconsistency on the part of the school has been regarded as fatal. [Citation omitted]. We, too, would probably so regard it. At the same time, we prefer not to place our decision on this ground alono, lest our doing so diminish our principal holding, or lead to a bowdlerization of the school library. 418 F.2d at 362-363. . As to literary merit, Professor Harrington testified for plaintiffs that he felt the stories had literary merit. Chancellor Fortune did not address literary merit directly but did state that he felt any literary merit was offset by the use of the objectionable language. . See Joyce, James, A Portrait of the Artist as a Young Man, Viking Press, Ellmann ed., 1964, page 253. . For instance, we find the Duke ease easily distinguishable. First, we were there dealing with somewhat different principles of law since it involved an employer-employee relationship. Furthermore, that case involved quite vitriolic and vulgar personal attacks on the administration of the university made by a teacher who had not yet achieved tenure. They were certainly not made in the relatively sterile context of a literary composition. The statements and the way they were presented were, in the opinion of the court, enough to cast considerable doubt on whether the person making those statements could effectively continue ns an instructor, working with an administration she had so crudely attacked. Finally, the procedural devices present in the Duke case, at least as the procedures followed have been outlined to us, are significantly different from those in this case. . Under questioning at the hearing, Chancellor Fortune did testify that he felt such a statement would not have been enough for the university.

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UNITED STATES of America, Plaintiff-Appellant, v. Leslie Hugh OUTLAND, Defendant-Appellee. No. 72-1930. United States Court of Appeals, Sixth Circuit. Argued Feb. 15, 1973. Decided April 12, 1973. Robert P. Hurlbert, Asst. U. S. Atty., for plaintiff-appellant; Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., on brief. Richard M. Lustig (Court appointed), Zemke & Lustig, P. C., Southfield, Mich., for defendant-appellee. Before PHILLIPS, Chief Judge, MILLER, Circuit Judge, and McALLISTER, Senior Circuit Judge. PER CURIAM. The Government appeals from the District Court’s suppression of evidence seized under two search warrants. The facts of the case are detailed in the District Court’s opinion. 345 F.Supp. 1250 (E.D.Mich.1972). For the herein stated reasons, we reverse and remand for an evidentiary hearing. The District Court suppressed the evidence for two reasons: (1) postal and customs authorities waited 85 days after seizing the contraband in a Customs inspection of two mailed packages before seeking search warrants the day before delivering the packages; (2) the affidavits upon which the warrants were based were insufficient because they did not establish a chain of custody of the contraband during the 85 days and did not indicate how the Customs agent knew the packages were to be delivered the following day. This court holds that the affidavits were sufficient under the Supreme Court’s mandate in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1964), to test affidavits for warrants “in a commonsense and realistic fashion.” The underlying circumstances were sufficiently presented to the magistrate to justify the issuance of the warrants. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The chain of custody of the contraband would possibly be necessary to show guilt beyond a reasonable doubt at trial, but was not necessary for the finding of probable cause for the issuance of the warrant. Cf. United States v. Harris, 403 U.S. 573, 584, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1970). When the magistrate was told by the Customs official in his affidavit that the packages, then in the hands of a postal inspector, would be delivered by the United States Postal Service, there was probable cause to believe such packages would be so delivered. As for the delay between the seizure of the contraband and the seeking of the warrants, we find nothing in the record to show that this delay was unreasonable. We remand this case for an evidentiary hearing at which the District Court will adduce the reasons for delay and any possible prejudice to the defendant caused by the delay. The mere showing of delay does not per se transform the legal seizure, United States v. Beckley, 335 F.2d 86 (6th Cir.), cert. denied, Stone v. United States, 380 U.S. 922, 85 S.Ct. 921, 13 L.Ed.2d 807 (1964), into a violation of the Fourth Amendment. The District Court’s use of United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970), to support its holding on the delay is erroneous. That case concerned domestic mail not international mail, as in the case at bar. As this court stated in Beckley, supra: “Fourth Amendment standards applicable to mail matter moving entirely within the country are not applicable to mail matter coming in from outside the country. . . . ” 335 F.2d at 88. Reversed and remanded. . Both affidavits read, in part, as follows: “Information was furnished to Gary Wade, Special Agent, Bureau of Customs, Detroit, Michigan, from George Murto, Supervisor of the International Mail Division, Detroit, Michigan, on September 8, 1971, that a package addressed to: (here addresses were inserted in each affidavit) had been subjected to a routine Customs examination on September 8, 1971 by George Murto and found to contain approximately two pounds of suspected hashish concealed in a candle. That on December 3, 1971 it is suspected that the above described package will be in said residence after 9:00 o’clock A.M. by reason of its delivery in the ordinary course of mail delivered by the United States Postal Service, and said package is now in the custody of Postal Inspector Russel B. Mabry, Detroit, Michigan. Further, that Special Agent Gary Wade performed a field test on the suspected hashish and received positive results. An inquiry directed to Postal authorities indicated that the addressee is residing at and receiving mail at the above address, /s/ Gary E. Wade, Special Agent, Bureau of Customs.”

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ST. PAUL FIRE AND MARINE INSURANCE COMPANY, v. Herbert Phillip LACK, Appellant, v. Charles M. IVEY, Jr., Administrator of the Estate of Mary Carolyn Lack, Appellee. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellant, v. Herbert Phillip LACK, Appellee, and Charles M. Ivey, Jr., Administrator of the Estate of Mary Carolyn Lack, Appellee. Nos. 72-2294, 72-2295. United States Court of Appeals, Fourth Circuit. Argued Feb. 5, 1973. Decided March 29, 1973. Joseph E. Elrod, III, Greensboro, N. C. (Perry C. Henson and Joseph E. Elrod, III, Greensboro, N. C., on brief), for appellant in No. 72-2294. William D. Caffrey, Greensboro, N. C. (Eugene W. Purdom and Jordan, Wright, Nichols, Caffrey & Hill, Greensboro, N. C., on brief), for appellant in No. 72-2295. Martin W. Erwin, Greensboro, N. C. (Jack W. Floyd, Smith, Moore, Schell & Hunter, Greensboro, N. C., on brief), for appellee Charles M. Ivey, Jr., in No. 72-2294 and for appellees in No. 72-2295. Before RUSSELL and FIELD, Circuit Judges, and BRYAN, District Judge. ALBERT V. BRYAN, Jr., District Judge: Herbert Phillip Lack (Lack), after fatally shooting his wife during a marital dispute, pled guilty to the charge of “voluntary manslaughter.” Charles M. Ivey, Jr., the Administrator of the Estate of Mary Carolyn Lack (Administrator), then instituted in a North Carolina state court a civil suit for wrongful death against Lack alleging negligence. The St. Paul Fire and Marine Insurance Company (St. Paul) had previously issued an insurance policy to the.decedent, agreeing to pay on her behalf, all amounts which she, or her spouse, should become legally obligated to pay in a personal injury action. The policy relieved the company of the duty to defend or pay if the act giving rise to the action was intentional. Contending that it was not obligated under this exclusionary clause to defend or cover any judgment against Lack since he had “intentionally” killed his wife, St. Paul sought a declaratory judgment against Lack in the District Court to this effect. The District Court stayed the state court proceedings, and allowed the Administrator to intervene and assert a cross-claim against Lack for wrongful death. In a bifurcated procedure, a jury found that Lack unintentionally killed his wife and therefore St. Paul was obligated to extend coverage and to defend him. A second jury then held Lack, and consequently St. Paul, liable in 'damages to the Administrator for the decedent’s wrongful death. I. The first issue presented is whether the District Court erred in instructing the jury that “voluntary manslaughter” could be interpreted as an admission to either the intentional or culpably negligent killing of a person without malice. Under North Carolina law it appears that voluntary manslaughter is the intentional unlawful killing of a human being and therefore an instruction incorporating culpable negligence as an alternative finding is improper since it does not require intent as a necessary element. See State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129 (1971); State v. Rummage, 280 N.C. 51, 185 S.E.2d 221 (1971). Although this instruction may have been improper it does not constitute reversible error. It is apparent by a reading of the charge in its entirety that the jury was explicitly told to base its verdict, when weighing the admission of guilt, on what Lack “intended at the time he pled guilty to voluntary manslaughter” rather than upon ■ definitional distinctions; and that the issue upon which the case turned, namely, Lack’s intent or absence of it at the time of the killing, was adequately put to the jury. II. The jury was also instructed to construe any exclusion under the terms of the policy in favor of the insured and against St. Paul. Even if this was error because no ambiguity existed in the policy, it is harmless when the charge is considered as a whole. The jury was adequately charged that the quantum of proof to be met by the plaintiff, St. Paul, was no more than a preponderance of the evidence. III. St. Paul contends that Lack’s guilty plea should have been conclusive as to his intent and binding in a subsequent civil suit. Since jurisdiction here is based on diversity, the law of the state where the District Court sits, North Carolina, controls questions of res judicata and collateral estoppel. Graves v. Associated Transport, Inc., 344 F.2d 894 (4th Cir. 1965). Taylor v. Taylor, 257 N.C. 130, 125 S. E.2d 373 (1962), establishes that a criminal conviction precludes relitigation of the same issue in a civil suit where one stands to profit from his own wrong. This, however, is distinguishable from the circumstances at bar. Here we have the product of a plea bargaining arrangement rather than a result of litigation of the issues which determine guilt. Consequently, application of the doctrine of res judicata or collateral estoppel would serve only to frustrate the expeditious administration of criminal justice accomplished through the plea bargaining process. Stout v. Grain Dealers Mutual Insurance Co., 307 F.2d 521 (4th Cir. 1962), is not to the contrary. There, the court’s holding was limited to a factual determination on the record that the explanation of the admission of guilt was, as a matter of fact, inadequate to rebut the case made out by the plea. Accordingly, a plea of guilty is to be considered as no more than an admission which may be explained rather than a conclusive statement which is binding when there has been no initial litigation of the issues. IY. The District Court entered an Order on September 1, 1971, assessing travel and subsistence expenses of Lack as part of the taxable costs of the suit for wrongful death. This being a matter solely within the discretion of the trial judge it will not be reversed. 28 U.S.C. §§ 1821 and 1920. V. The final question is whether the verdict should be reduced under the Wrongful Death Act. N.C.Gen.Stat. § 28-173. At common law one responsible for the death of another cannot profit by his own wrongdoing and share in the wrongful death award. Therefore, under the controlling cases of Cox v. Shaw, 263 N.C. 361, 139 S.E.2d 676 (1965), and Cummings v. Locklear, 12 N.C.App. 572, 183 S.E.2d 832, cert. denied 279 N. C. 726, 184 S.E.2d 883 (1971), the award must be reduced by the statutory share of the wrongdoer. The Administrator argues that this result is precluded by the “slayer statute” which excludes the wrongdoer from taking by declaring him to have constructively died prior to the deceased. N.C.Gen.Stat. §§ 31A-3 & 31A-4. It would not reduce the award but would enable the other beneficiaries, in this ■ case two children of the deceased, to share Lack’s statutory interest in the deceased’s estate. The first jury, however, at the urging of Lack and the Administrator, has by its verdict eliminated Lack as a slayer, since the statute defines a slayer as a person who wilfully and unlawfully kills another. Moreover, the slayers’ exclusion appears to apply only to inheritance from the decedent’s “estate,” while wrongful death awards have consistently been deemed not to pass through the personal estate of the deceased but rather • to arise out of a right of action belonging peculiarly to the personal representative for the benefit of the intestate successors. See Broadnax v. Broadnax, 160 N.C. 432, 76 S.E. 216 (1912); Hoke v. Atlantic Greyhound Corporation, 226 N.C. 332, 38 S.E.2d 105 (1946); Stetson v. Easterling, 274 N.C. 152, 161 S.E.2d 531 (1968). The ease is remanded to the District Court for entry of an order reducing the award by one-third. Affirmed in part; reversed in part and remanded.

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UNITED STATES of America, Appellee, v. Rudolph A. TROPEANO, Defendant, Appellant. No. 72-1337. United States Court of Appeals, First Circuit. Argued March 6, 1973. Decided April 10, 1973. Lawrence F. O’Donnell, Boston, Mass., with whom Francis X. Aylward, Boston, Mass., was on brief, for appellant. Michael J. Madigan, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee. Before COFFIN, Chief Judge, ALD-RICH and McENTEE, Circuit Judges. ALDRICH, Senior Judge. Defendant, a government meat inspector, convicted of violations of 21 U.S.C. § 622 (“Bribery of or gifts to inspectors or other officers and acceptance of gifts”) by the receipt of money and meat products, from a processor, lists fifteen points on his appeal. A number are answered by our recent decision in United States v. Seuss, 1 Cir., 1973, 474 F.2d 385. A larger number need no discussion, either because they do not possibly involve plain error, or because they do not possibly involve error of any sort. Two matters remain. Defendant’s trial took place after the conviction of some other defendants on similar charges. After testimony had started, defendant’s counsel learned that some of the jurors had sat in a previous case. Defendant moved for a mistrial. The court denied the motion, on the ground that the objection came too late and because the jurors were not disqualified as a matter of law. The second portion of this ruling was clearly correct. United States v. Ragland, 2 Cir., 1967, 375 F.2d 471, cert. denied 390 U.S. 925, 88 S.Ct. 860, 19 L. Ed.2d 987, and cases cited at 476 n. 2. On the record, the first was, also. Defendant knew there had been previous trials. Although it would have been a simple matter to request the court to inquire of prospective jurors at the time of impanelling whether they had sat before, defendant did not do so. Had he done so the court should probably have regarded the disclosure as a ground for challenge for cause. Indeed, defendant had not even consumed his peremptory challenges. Defendant’s counsel offers as excuse a conversation with a deputy clerk which led him to believe he was going to get “fresh” jurors. This circumstance does not appear of record with any clarity. Even if we were to assume it did, it would not constitute an adequate excuse. A trial is a serious matter. It is not within the scope of the duties of a deputy clerk to supply such information. The clerk’s office is often helpful and, from experience, parties may find the advice of a clerk on all sorts of matters to be valuable. Counsel must, however, take their own chances on such informal instruction, particularly in a situation like the present, where first hand information and the ability to protect oneself is readily available. The government is rarely if ever estopped by a statement of an official outside his authority. Cf. United States v. Rossi, 9 Cir., 1965, 342 F.2d 505. If the rule were otherwise, courts would be obliged to forbid their clerks to have any contact with counsel except in the rigid performance of their statutory duties. The bar would be the first to object to such a rule. The alternative is that counsel must make their own decision whether to trust such informal information, or, as we have sometimes found the problem to be, and would seem here, to trust their own understanding of what the clerk may have said. In this case, if in fact counsel correctly understood the clerk and the clerk was mistaken, it is the defendant who properly must bear the consequences. In fact, in much clearer cases, as where the clerk’s office fails to send out a notice, the loss falls on the party who relied on the clerk’s office instead of checking the record. See, e. g., Buckley v. United States, 10 Cir., 1967, 382 F.2d 611, cert. denied 390 U.S. 997, 88 S.Ct. 1202, 20 L.Ed.2d 97. Secondly, defendant complains that the prosecutor violated the rule forbidding his stating in argument his personal belief in defendant’s guilt. The now objected-to statement was as follows. “Do you recall that I said in my opening statement perhaps improperly, it is not a very nice story, because I believe that is true, it is not a very nice story. It is a story that happened.” We consider that a listener would take the first part of this statement as the prosecutor’s concurrence in the sorry nature of the tale told by the government’s witnesses. It would have been better had he made the second sentence less direct: “I ask you to find that it happened.” “I submit that it happened.” “The government witnesses were clear in their testimony . . .” etc. But while we regret the form, we do not find it so positive that we must reverse. Nonetheless, the lesson to the prosecutor should be obvious; “I believe” is a dirty verb. Affirmed. . All that appears is that counsel informed the clerk that he wanted a fresh jury. It does not appear now, nor was the claim made to the district court, that the clerk informed him that, without more, he was going to get one. . We cannot forbear remarking, from viewing the record, that the same sauce should be applied to the gander.

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Robert N. WORTHINGTON and Svaja V. Worthington, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, RespondentAppellee. No. 72-1808. United States Court of Appeals, Tenth Circuit. April 10, 1973. Scott P. Crampton, Asst. Atty. Gen., and Thomas L. Stapleton and Charles R. Burnett, Attys., Tax Div., Dept, of Justice, have filed a memorandum in support of summary affirmance on behalf of appellee. Before LEWIS, Chief Judge, and PICKETT and McWILLIAMS, Circuit Judges. PER CURIAM. Appellants appeal from an adverse decision of the Tax Court sustaining the Commissioner of Internal Revenue’s assessment of a tax deficiency for the year 1968 in the amount of $552.38. The issue before the Tax Court was whether $2,700.00 received by appellant during the taxable year 1968 as a teaching assistant in the English Department of the University of New Mexico was excludable from gross income for that year under the provisions of Section 117 of the Int.Rev.Code of 1954. The Tax Court found that it was not. We agree. The facts are not in dispute. In the fall of 1967, appellant was hired by the University as a teaching assistant in the Department of English at a remuneration of $270.00 per month. She had successfully completed work on her masters degree and was working toward her doctorate. As a teaching assistant, she taught four sections of freshman English. She taught two sections per semester during the school years 1967/1968 and 1968/1969. She had complete control of her own classes and was not directly under the supervision of the English Department other than being provided with information or a syllabus covering the subject matter to be taught. The funds which.were used to pay teaching assistants at the University, and appellant in particular, were allocated from the instructional segment of the University’s budget. Loans, scholarships, and fellowships were allocated from the student aid segment • of the University's budget. The primary criteria used by the state Board of Educational Finance in determining the number of teaching assistants to be included in the instructional segment of the University’s budget in a given year is the projected enrollment at the University for the year for which the budget is being prepared. During the year in issue, the University would have had to hire additional instructors to teach freshman English had the budget not allowed for the hiring of teaching assistants. Appellants excluded from their gross income for the taxable year 1968 the $2,700.00 received by appellant for teaching freshman English. This amount was disallowed by the Commissioner who was of the opinion that the amount represented compensation for services rendered and thus was not within the provisions of Section 117, or, alternatively, if it were considered as a scholarship or fellowship, that it fell within the proviso of Section 117(b)(1). The Tax Court conducted a two-day hearing following which it sustained the assessment. The Court concluded, “In the instant case the record amply shows that petitioner [appellant] was paid to work rather than paid to study.” The court found it unnecessary to consider the applicability of Section 117(b)(1) in view of its conclusion that the payment to appellant in 1968 represented payment for services rendered and that such payment did not constitute a scholarship or fellowship. We have carefully reviewed the proceedings in the Tax Court, the Tax Court’s opinion and cases cited therein, as well as those cited by appellants, and conclude that the decision of the Tax Court was correct. Upon docketing, the parties were notified that we were considering summary affirmance, and of their right to file a memorandum in support of their respective positions. Appellee took advantage of such opportunity, and we now have before us appellee’s memorandum in support of summary action. Appellants did not file a memorandum in opposition to summary action. Nevertheless, after a careful and thorough review of the records and files in this case, we are convinced that the judgment of the Tax Court was correct. Affirmed. . Mr. Robert Worthington joined - in his wife’s petition in the Tax Court since they filed a joint return for the year 1968. Our references to appellant refer to Mrs. AVorthington only. . “Sec. 117. Scholarships and fellowship grants. “(a) General Rule. — In the case of an individual, gross income does not include— “(1) any amount received— “(A) as a scholarship at an educational institution (as defined in section 151(e) (4)), or “(B) as a fellowship grant, including the value of contributed services and accommodations ; and “(2) any amount received to cover expenses for — • “ (A) travel, “ (B) research, ‘‘(C) clerical help, or “ (D) equipment, which are incident to such scholarship or to a fellowship grant, but only to the extent that the amount is so expended by the recipient. “(b) Limitations.— “(1) Individuals who are candidates for degrees. — In the case of an individual who is a candidate for a degree at an educational institution (as defined in section 151(e)(4)), subsection (a) shall not apply to that portion of any amount received which represents payment for teaching, research, or other services in the nature of part-time employment required as a condition to receiving the scholarship or the fellowship grant. If teaching, research, or other services are required of all candidates (whether or not recipients of scholarships or fellowship grants) for a particular degree as a condition to receiving such degree, such teaching, research, or other services shall not be regarded as part-time employment within the meaning of this paragraph.” . The Board serves essentially as a coordinator of the various budget requests presented by state operated schools. It analyzes the requests and forwards them to the state legislature which usually adopts the Board’s recommendations.

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Dr. William BOOTH, Plaintiff-Appellant, v. GARAN, INCORPORATED, Defendant-Appellee. No. 72-2975. United States Court of Appeals, Fifth Circuit. April 6, 1973. William Liston, Winona, Miss., Harvey T. Ross, Clarksdale, Miss., James E. Upshaw, James Y. Dale, Greenwood, Miss., for plaintiff-appellant. Hassell H. Whitworth, Jackson, Miss., for defendant-appellee. Before BELL, INGRAHAM and RONEY, Circuit Judges. PER CURIAM: Plaintiff brought this Mississippi diversity action in nuisance against a manufacturer who dumped allegedly harmful chemical wastes into a ditch adjoining plaintiff’s property. Plaintiff contended that the odors and vapors created by defendant’s effluent discharges injured his respiratory and ventilatory systems, but the jury found for the defendant on the ground that the discharges were not harmful. On appeal, plaintiff argues, first, that the District Court erred when it refused to grant his motion for a judgment notwithstanding the verdict, and second, that the Court erred when it refused to grant his motion for a new trial. We affirm. As to the motion for judgment notwithstanding the verdict, a review of the trial testimony convinces us that “the evidence [was] of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions . . . ” Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969). Hence, the case was properly submitted to the jury. As to the motion for a new trial, plaintiff contends that erroneous instructions of the District Court “hopelessly confused” the jury. Additionally, plaintiff contends that the District Court erred when it permitted the defendant to introduce experimental evidence. Special interrogatory number one reads: Do you find from a preponderance of the evidence in this action that the waste material discharged from defendant’s . . . plant into the open ditch in question from November 1968 to the present created noxious or toxic vapors or fumes in the area of plaintiff’s residence? The District Court instructed that the terms “toxic” and “noxious” meant “something poisonous” and “something harmful or destructive to man or other organisms,” respectively. The jury answered “No” to the interrogatory, thereby finding that plaintiff had failed to prove that the discharge from defendant’s plant actually carried with it fumes or vapors that could have damaged plaintiff. After thoroughly examining the Court’s instructions, we are persuaded that the jury was not confused or misled, nor was the admission of the experimental evidence reversible error. A District Court has wide discretion to admit evidence of experiments conducted under substantially similar conditions, Ramseyer v. General Motors Corp., 417 F.2d 859 (8th Cir. 1969), and plaintiff here has failed to establish an abuse of that discretion. It should be noted that this case involves no property nuisance claim. Plaintiff’s action for interference with the use and- enjoyment of his property is the subject of another suit, and defendant concedes that, in that case, at least nominal damages might be required even if the vapors and fumes were merely obnoxious and not physically injurious. A review of the evidence, however, convinces us that the negative answer to the controlling special interrogatory resulted not from error of the Court but from the plaintiff’s failure of proof. Affirmed.

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UNITED STATES of America, Plaintiff-Appellee, v. Curtis G. STILLS, Defendant-Appellant. No. 72-2959. United States Court of Appeals, Fifth Circuit. April 3, 1973. Paul Carmouche, Shreveport, La., for defendant-appellant. Donald E. Walter, U. S. Atty., David R. Lestage, Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee. Before COLEMAN, MORGAN and RONEY, Circuit Judges. COLEMAN, Circuit Judge: Curtis C. Stills was charged with the distribution of approximately 0.502 grams of heroin in violation of 21 U.S.C. § 841(a)(1). He was found guilty after a jury trial and at sentencing was found to be eligible for treatment under the Narcotics Rehabilitation Act, 18 U.S.C. 4254. The appellant raises two contentions of error: first, the District Court should have granted the motion for judgment of acquittal because entrapment was shown as a matter of law; second, the District Court should have sustained the objection to testimony of a government witness as to what he had heard about defendant’s reputation for selling narcotics. We affirm. Entrapment as a Matter of Law The facts surrounding the alleged sale of the heroin are in dispute. The testimony of two government agents was that the defendant instigated the sale of the heroin; the defendant claims that the government agents asked him to purchase the heroin. The “resolution of conflicting testimony and the inferences to be drawn from it in assessing the defense of entrapment must be left to the jury”, United States v. Villafana, 5 Cir, 1972, 455 F.2d 478, 479. Testimony of Defendant’s Reputation as a Narcotics Peddler Joe King, a cooperating individual, testified in rebuttal as follows: Q. All right. Have you heard that the defendant has, in fact, dealt in heroin? A. Yes, sir, I have heard it. MR. CARMOUCHE: [Defendant’s attorney] That’s hearsay evidence, Your Honor. 'X* -Jf -X- * *X- -X* Q. Have you heard the reputation of the defendant, Curtis Stills, either to sell or not to sell heroin, discussed? A. Yes, sir, I have heard that he was. Q. You have heard it discussed? [Objection] A. Yes, sir, I have. Q. All right. And what was the discussion to what effect? That he sold or did not sell heroin ? A. That he sold. Defendant contends that such testimony was hearsay. The District Court allowed the testimony on the basis of the decisions in United States v. Robinson, 5 Cir, 1971, 446 F.2d 562, cert. denied, 404 U.S. 959, 92 S.Ct. 323, 30 L.Ed.2d 277, and Thompson v. United States, 5 Cir., 1968, 403 F.2d 209. This action was not error. In United States v. Robinson, supra, we said: “Appellant’s argument disregards the law of this circuit. We have repeatedly held that once the defense of entrapment is raised the government may introduce hearsay testimony concerning the defendant’s past reputation as bearing upon the defendant’s predisposition to commit the crime and the reasonableness of the conduct by the government agents. Washington v. United States, 5 Cir., 1960, 275 F.2d 687; Rocha v. United States, 5 Cir., 1968, 401 F.2d 529; Thompson v. United States, 5 Cir., 1968, 403 F.2d 209. Moreover, in the case of Thompson v. United States, supra, this court specifically approved the use of reputation evidence in the form of testimony which the witness gleaned from the reports of a local police department. The district court was therefore correct in admitting the testimony concerning Robinson’s past reputation for illegally selling drugs.” The judgment of the District Court is Affirmed. . Section 841(a)(1) provides as follows: Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. . The government offered this testimony as to the defendant’s reputation in order to rebut entrapment.

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Learness MELANCON, Plaintiff, v. INSURANCE COMPANY OF NORTH AMERICA and Automobile and Casualty Underwriters, DefendantsAppellees, v. COATING SPECIALISTS, INC., Defendant-Appellant. No. 72-3309 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 30, 1973. Rudolph R. Schoemann, New Orleans, La., for defendant-appellant. Thomas M. Bergstedt, Lake Charles, La., John Rixie Mouton, Lafayette, La., Donald V. Organ, Donald M. Pierce, New Orleans, La., for defendants-appellees. Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges. Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I. PER CURIAM: Alleging that his work aboard the M/V SNIPE aggravated or caused his silicosis or pneumonoconiosis condition, plaintiff sued Insurance Company of North America, State Automobile and Casualty Underwriters, and Coating Specialists, Inc. for damages under the Jones Act and maintenance under the General Maritime Law. The district court granted summary judgment for the Insurance Company only and declared in its judgment “This is a final judgment within the meaning of Rule 54(a) of the Federal Rules of Civil Procedure.” Defendant Coating Specialists, which had purchased Jones Act liability coverage from the Insurance Company, appeals from this summary judgment. We dismiss this appeal for lack of jurisdiction. In a multiple party suit, such as this one, a summary judgment adjudicating the claims or rights and liabilities of fewer than all the parties. is not a final appealable judgment within the meaning of 28 U.S.C. § 1291 unless the district court makes (1) an “express determination that there is no just reason for delay” and (2) “an express direction for the entry of judgment.” Fed.R.Civ. P. 54(b). Since the district court did not make the requisite “express determination,” this court is without jurisdiction to entertain the appeal. Bailey v. Rowan Drilling Company, 5th Cir. 1971, 441 F.2d 57; United States v. Crow, Pope and Land Enterprises, Inc., 5th Cir. 1973, 474 F.2d 200; see 6 J. Moore, Federal Practice, ¶ 54.34 [2.2] n. 10 (2d Ed. 1972). After .summary judgment for the Insurance Company was granted, Coating Specialists moved for leave to file a third party complaint against the Insurance Company, and the district court denied this motion without any reference to the final judgment status of its order or to the question whether any just reason for delaying an appeal from the order existed. Coating Specialists appeals from the denial of the motion, and this appeal has been consolidated with the summary judgment appeal for consideration by this court. This second appeal must also be dismissed. Even if, as we assume here without deciding, the denial of Coating Specialists’ motion to file a third party complaint might be appealable if certified by the district court under Rule 54(b), see 6 J. Moore, Federal Practice, ¶ 54.36 (2d Ed. 1972), it is clear that the denial of the motion is not appealable without the requisite Rule 54(b) certification. If the trial court enters a new judgment and accompanies it with .a proper Rule 54(b) certificate, the second appeal may be submitted on the record and briefs prepared for this appeal as supplemented by the new judgment and certificate. See 3 Barron and Holtzoff, Federal Practice and Procedure § 1193 at 26 (Wright Ed. 1958). Dismissed.

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Josephine PARKER and Judi Greenlee, Plaintiffs-Appellants, v. GENERAL TELEPHONE COMPANY OF the NORTHWEST, INC., DefendantAppellee. No. 71-1547. United States Court of Appeals, Ninth Circuit. April 11, 1973. Rembert Ryals (argued), David E. Williams, Critchlow, Williams, Ryals & Schuster, Richland, Wash., for plaintiffs-appellants. George J. Tichy (argued), Spokane, Wash., for defendant-appellee. Before KOELSCH and WRIGHT, Circuit Judges, and BELLONI, District Judge. Honorable Robert C. Belloni, United States District Judge, District of Oregon, sitting by designation. PER CURIAM: Josephine Parker and Judi Greenlee were employed by General Telephone Company. Plaintiffs alleged that they were discriminated against in the course of employment because of their sex. Charges were filed by plaintiffs with the Equal Employment Opportunity Commission (EEOC), pursuant to Section 706(a) of Title VII, Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(a). Plaintiffs made no filing with the state. The EEOC concluded that reasonable cause existed to -believe the truth of plaintiffs’ charges. Plaintiffs filed their complaint in district court after informal efforts to resolve the dispute proved unsuccessful. The district court dismissed the action on the grounds that plaintiffs had failed to notify the state of their claims, and that such notice was necessary, under 42 U.S.C. § 2000e-5(b), as a preliminary to federal jurisdiction. We find that the dismissal of plaintiffs’ complaint was in error. “The district court shall retain jurisdiction for a time sufficient to allow the EEOC to notify [the appropriate state commission] and to allow that commission the statutory deferral period in which to act upon it. If the [Washington] commission elects not to act, the district court may then proceed as the rights of the parties may then appear.” Motorola, Inc. v. Equal Employment Opportunity Commission, 460 F.2d 1245, 1246 (9th Cir. 1972), citing Crosslin v. Mountain States Telephone and Telegraph Co., 400 U.S. 1004, 91 S.Ct. 562, 27 L.Ed.2d 618 (1971). Defendant, in its answer, maintained that the conditions for venue enumerated in Section 706(f) of Title VII, Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 (f), were not satisfied with respect to Plaintiff Greenlee. While this issue was neither briefed nor argued by the attorneys on appeal, the record does indicate that the practices complained of by Plaintiff Greenlee occurred in the State of Idaho. Nonetheless, venue may rest on some other basis set forth in the statute. The trial judge addressed himself to the problem, however, the issue remains unresolved. Oii remand, the trial judge is directed to consider and determine the matter of venue with respect to Plaintiff Greenlee. Remanded.

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Paul DUHART, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 72-1505. United States Court of Appeals, Sixth Circuit. Argued Feb. 1, 1973. Decided April 18, 1973. Cary Rodman Cooper (court apptd.), Hayward, Cooper, Straub, Walinski, Cramer & Co., Toledo, Ohio, for petitioner-appellant. Erie D. Chapman III, Asst. U. S. Atty., Toledo, Ohio, for respondent-appellee; Frederick M. Coleman, U. S. Atty., on brief. Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges. PER CURIAM. In July 1965, a jury verdict was returned against appellant finding him guilty of bank robbery and assault in violation of 18 U.S.C. § 2113(d). A motion for new trial was denied and appellant was sentenced to 25 years imprisonment. There was no appeal. In January 1969, appellant filed a petition for a writ of habeas corpus which was treated as a motion to vacate sentence pursuant to 28 U.S.C. § 2255. The motion was denied by the District Court in March 1972 without an evidentiary hearing. This appeal followed. Appellant has specified a number of grounds in his appeal and we view two of those as having substance. In denying appellant’s petition, the District Court held that a question as to the legality of an arrest could not properly be a subject of a motion to vacate sentence. Appellant argues that he was illegally arrested and, as a result, the subsequent search and seizure of evidence in his car was illegal. He claims he is entitled to a hearing by virtue of Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969). Kaufman established that search and seizure issues could be properly raised on § 2255 motions. Some courts, e. g., Hayes v. United States, 419 F.2d 1363 (10th Cir. 1969), cert. denied, 398 U.S. 941, 90 S.Ct. 1856, 26 L.Ed.2d 276 (1970), are reported to have limited Kaufman to search and seizure situations. Our reading of those cases indicates that they merely affirm the principle that an arrest alone, without more, is not ground for a collateral attack in a proceeding to vacate sentence. But cf., Eagleston v. United States, 448 F.2d 1389, 1390 (10th Cir. 1971). Of course, it is settled that to justify a search incident to arrest, the arrest must be valid. See, Henry v. United States, 361 U.S. 98, 102, 80 S. Ct. 168, 14 L.Ed.2d 134 (1959); see, also, Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), where it was held that a search incident to an arrest which was based on an illegally issued warrant may not be sustained. Since search and seizure issues can now be properly raised on motions to vacate, it follows that where such motions allege an illegal search and seizure based on and incident to an illegal arrest, consideration of the illegal arrest is within the ambit of Kaufman. Such a conclusion is implicit in the Kaufman decision and is not an extension thereof. Thus we conclude that the District Court erred in not considering the allegation. Appellant also claims that he was deprived of the effective right to appeal. It appears that appellant’s retained trial attorney had timely moved for a new trial but upon the denial of the motion, the attorney ceased his efforts on appellant’s behalf. Appellant alleges that his counsel deceived him into thinking that an appeal was being taken and that he did not find otherwise until one year after his trial. The appellant was sent to prison within ten days after sentencing and there is some correspondence in the record which indicates he thought an appeal was being prosecuted. The District Judge did not advise appellant of his right to appeal at the time of sen-fencing, or at any other time. In dismissing the petition, the District Court relied on dicta in Desmond v. United States, 333 F.2d 378 (1st Cir. 1964). There the petitioner argued his attorney deceived him regarding his right to appeal. The Court of Appeals remanded the case for an evidentiary hearing on the matter. The Court then intimated that a less than prompt motion might preclude a hearing. Here, the District Court observed that the three year delay from the time appellant was aware that his attorney would not prosecute an appeal for him precluded him from raising it on the motion to vacate. That conclusion is in apparent conflict with our decision in Davis v. United States, 464 F.2d 1009 (6th Cir. 1972). There, this Court reversed the District Court’s findings of fact, after an evidentiary hearing upon a § 2255 motion, and found that appellant had not been advised of his right to appeal by his attorney or the court following his 1959 conviction. The Court held that this was a denial of the effective assistance of counsel and ordered resentencing. See, also, Powers v. United States, 446 F.2d 22 (5th Cir. 1971). The standard for determining the necessity of holding an evidentiary hearing on motions to vacate is found at 28 U.S.C. § 2255. The statute requires a hearing “. . . unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” Here, we can not reach that conclusion regarding either issue discussed above. We intimate no view as to the merits but merely hold that the record before us does not conclusively show that the appellant is entitled to no relief. The judgment is reversed and the cause remanded for further proceedings consistent with this opinion. . Rule 37(a)(2), F.R.Crim.P., was in effect in 1965 and required a court to advise a defendant of his right to appeal after imposition of sentence if defendant was not represented by counsel. This rule was amended in 1966. See, Rule 32(a) (2), F.R.Crim.P.

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Mary TAYLOR et al., Plaintiffs-Appellants, v. The CITY OF MILLINGTON, a municipal corporation formed under the laws of the State of Tennessee, et al., Defendants-Appellees. No. 72-1817. United States Court of Appeals, Sixth Circuit. Argued Feb. 15, 1973. Decided April 18, 1973. David Lambert, Memphis, Tenn., for plaintiff s-appellants. James W. Watson, Memphis, Tenn., for defendants-appellees; Watson, Lewis & Knolton, Memphis, Tenn., of counsel. Before WEICK, CELEBREZZE and PECK, Circuit Judges. PER CURIAM. The suit in the District Court was a class action to desegregate two public housing projects operated by the Millington Housing Authority of Millington, Tennessee [MHA], one of which projects, known as the Bill Knight Road project, was located within the city limits, near a school attended by all white pupils, and was occupied entirely by white tenants. The other project was located outside the city limits, near an elementary school whose pupils were all Negroes, and was occupied entirely by Negro tenants. Both schools have since been desegregated. The District Court found that MHA had initially assigned tenants to the two projects based entirely on race and that it continued to do so until the adoption of the Civil Rights Act of 1964. After passage of that statute MHA instituted a “Freedom of Choice” policy whereby white and Negro applicants were permitted to select the particular project in which they desired to live. Under this policy white applicants continued to select the all-white project, while Negro applicants continued to select the all-Negro project, and both applicants were encouraged to do so by MHA. HUD adopted a regulation for the assignment of eligible applicants to dwelling units on a community-wide basis, and implemented it by a circular dated July 10, 1967, requiring MHA within ninety days to adopt a plan setting forth assignment policies which would require selection of tenants on a non-discriminatory basis. MHA, by resolution, adopted such a plan on October 10, 1968, but has done very little to implement such plan until the present suit was filed. The District Court found that the policies of MHA operated to segregate the races and were in violation of law. The Court said, however,— “. . . that there has been no malevolent intent or even intentional discrimination practiced by the defendants before us in the sense of invidious, active and willful acts directed against these plaintiffs by reason of their race.” The Court also found there had been some discrimination in the all-Negro project, which discrimination was not racial but it delayed acceptance of applications of some of the plaintiffs. The Court, relying on Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and the Civil Rights Act, entered an injunction enjoining the defendants from maintaining a policy of segregation in the two housing projects and mandatorily ordering it to treat all applications of black applicants in equal fashion with those of white applicants, having due regard for lawful preferences and priority considerations allowable under HUD guidelines with regard to space in the Bill Knight Road project. The Court, although finding that there was no evidence of damage, awarded $50-damages to Novella Taylor, and $50-damages to Rosa Cobbs. It also assessed an attorney’s fee of $400 and costs against the defendants. By order subsequently entered, the Court ordered $50 to Mary Emma Taylor instead of Novella Taylor. Significantly, the Court did not find that any of the plaintiffs had ever specifically requested assignment to the all-white project. Plaintiffs filed a motion to amend and clarify the findings of the District Court. The District Court, in its order acting thereon, reiterated that— “. . . defendants must adhere to applicable, proper and legal H.U.D. regulations and requirements relative to its further course of rental units and they must treat all black applicants equally with white.” The Court did not order the defendants to place any particular plaintiff in any particular unit, but retained jurisdiction for a period of one year in order to insure that the intendment of its order would be carried out. The Court suggested to the defendants and their counsel, the following: “(1) [that] they review existing applications promptly and place them in order of preference, priority, and time of filing and that they make the result of such review available to plaintiffs’ attorney and to the Court. “(2) that they furnish a copy of their review to the Housing and Urban Development office having jurisdiction over compliance to the guidelines of Millington Housing Authority for its approval and/or suggestions together with a copy of this order and the Court’s Memorandum Opinion.” This request was complied with and the defendants so reported to the Court. Since the community-wide list was prepared, a total of nine vacancies occurred in the projects; six were filled with black applicants, and three with white applicants. Of the six black applicants, three were rented units in the formerly all-white project and the other three went to the all-black project. No white applicants have as yet expressed willingness to be assigned to the all-black project. In their appeal, the plaintiffs do not complain about the injunction and mandatory order entered by the District Court; their complaint is that the orders do not go far enough to integrate the races in both projects. We would question the authority of the District Court to uproot the present tenants living in both projects, and because of their race, to assign them to different projects in order to effect a racial balance or quota. We think the District Court has chosen the right course to retain jurisdiction and to compel compliance with HUD regulations and policies, which should ultimately operate to further integrate the races. The judgment of the District Court is affirmed except as to the award of $50-damages to each of two plaintiffs, which awards are vacated.

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Floyd C. GREEN, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee. No. 72-2589 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 6, 1973. Harry H. Walsh, Staff Counsel for Inmates, Texas Dept, of Corrections, Huntsville, Tex., for petitioner-appellant. Crawford C. Martin, Atty. Gen., Robert Darden, Asst. Atty. Gen., Austin, Tex., for respondent-appellee. Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: In this, his second round of federal habeas corpus petition, Petitioner challenges his conviction for robbery on the basis that the use of his sworn testimonies in a previous trial against a co-defendant violated his Fifth and Sixth Amendment rights under Miranda. The able trial judge found Petitioner’s contentions to be without merit and declined to issue the writ. We agree. It is elementary that the stringent requirements of Miranda apply only when the Defendant is in custody. United States v. Montos, 5 Cir., 1970, 421 F.2d 215; Archer v. United States, 5 Cir., 1968, 393 F.2d 124; Evans v. United States, 5 Cir., 1967, 377 F.2d 535; United States v. Akin, 5 Cir., 1970, 435 F.2d 1011. Petitioner’s alleged inculpatory statements were given during the course of a judicial proceeding and after the Petitioner had been informed of his Fifth Amendment right to remain silent by the state trial judge. This is not the invidious subterfuge which the Court faced in Massiah v. United States, 1964, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. Likewise, the mere absence of petitioner’s counsel at the co-Defendant’s trial does not impugn his testimony. United States v. DeLoy, 5 Cir., 1970, 421 F.2d 900; United States v. White, 5 Cir., 1971, 451 F.2d 696. The Petitioner had ample opportunity to refuse to testify or to request the advice of counsel. See United States v. Priest, 5 Cir., 1969, 409 F.2d 491. The judgment will be Affirmed.

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George Clary NEAL, Petitioner-Appellant, v. UNITED STATES MARSHAL AT SOUTHERN DISTRICT OF GEORGIA et al., Respondents-Appellees. No. 72-3495 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 16, 1973. John J. Sullivan, Savannah, Ga., for petitioner-appellant. R. Jackson B. Smith, Jr., U. S. Atty., Augusta, Ga., Murray R. Stein, John L. Murphy, Chief, U. S. Dept. of Justice, Washington, D. C., for respondentsappellees. Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I. PER CURIAM: In his habeas corpus petition, Neal seeks review of the district court’s determination that he is extraditable to Canada. Neal admits that he is the same person against whom the Government of Canada has pending criminal charges for obtaining money by false pretenses and for possession of stolen property. Moreover, it is uncontroverted that these charges are enumerated extraditable offenses within the extradition treaties between the United States and Canada; that these offenses are felonies under the criminal laws generally in force within the United States; and that the applicable statutes of limitations have not expired. Accordingly, the only issue that we need decide on appeal is whether the district court erred in holding that there was probable cause to believe that the crimes charged were committed in Canada and that Neal may have committed them. A careful review of the record convinces us that there was sufficient evidence to establish the requisite probable cause and, therefore, the judgment of the district court is Affirmed.

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The FIRESTONE TIRE & RUBBER COMPANY, Plaintiff-Appellee, v. INTERNATIONAL UNION OF the UNITED RUBBER, CORK, LINOLEUM AND PLASTIC WORKERS OF AMERICA, AFL-CIO, et al., Defendants-Appellants. No. 72-2189. United States Court of Appeals. Fifth Circuit. April 13, 1973. George E. Barrett, Nashville, Tenn., George Vasko, Gen. Counsel, United Rubber Workers Int’l, Akron, Ohio, for defendants-appellants. Robert L. Thompson, George B. Smith, Atlanta, Ga., S. B. Lippitt, Jr., Albany, Ga., Walter B. Connolly, Jr., Akron, Ohio, for plaintiff-appellee. Before GEWIN, GOLDBERG and SIMPSON, Circuit Judges. PER CURIAM: This is an appeal from the entry of an order denying a stay pending arbitration and enjoining the defendant-union from pursuing any actions or proceedings arising out of the contract breach at issue in this lawsuit. We affirm. This action was initiated by plaintiffappellee, Firestone Tire & Rubber Company [Firestone] against defendants-appellants, the International Union of the United Rubber, Cork, Linoleum and Plastic Workers of America, Local No. 887 of that Union, and several individuals. In the suit Firestone sought injunctive relief and damages for violation of the no-strike provision contained in the collective bargaining agreement. After considerable procedural jockeying, the Union filed a motion in the court below on March 29, 1972, seeking a stay of the court proceedings pending arbitration. After hearing argument on the motion, the district court found that the collective bargaining agreement did not contemplate arbitration of no-strike clause breaches. In an order dated April 11, 1972, the district court denied the stay pending arbitration and enjoined the Union: “from commencing or continuing, or causing the commencement or continuation, either directly or indirectly, of any action, suit, proceeding, case, controversy, or other form of litigation or dispute against the Plaintiff herein (including without in any way limiting the generality of the foregoing, the action presently pending as Civil Action No. C72-196 in the United States District Court for the Northern District of Ohio), which are based upon, arise out of or are related to the transactions or occurrences which are the subject matter of the Plaintiff’s complaint herein; provided, however, that the foregoing shall not be deemed or construed as restricting, prejudicing or adversely affecting in any manner the rights of any or all of the Defendants herein to assert in this proceeding any defense or counterclaim that may be available to any or all of such Defendants to or against the claims asserted by the Plaintiff herein.” It is from the entry of the above order that the Union brings this appeal. As a threshold matter, Firestone argues that (a) the order appealed from is non-appealable, and (b) the case is moot. It is true that an order denying a stay pending arbitration is non-appealable where the underlying suit seeks equitable relief. See Wallace v. Norman Industries, Inc., 5 Cir. 1972, 467 F.2d 824; Southeastern Enameling Corp. v. General Bronze Corp., 5 Cir. 1970, 434 F.2d 330; Jackson Brewing Co. v. Clarke, 5 Cir. 1962, 303 F.2d 844; New England Power Co. v. Asiatic Petroleum Co., Inc., 1 Cir. 1972, 456 F.2d 183; J. M. Huber & Co. v. M/Y Plym, 4 Cir. 1972, 468 F.2d 166; Buffler v. Electronic Computer Programming Inst., Inc., 6 Cir. 1972, 466 F.2d 694; Standard Chlorine of Del., Inc. v. Leonard, 2 Cir. 1967, 384 F.2d 304; 9 Moore’s Federal Practice ¶ 110.20 [.4-1]. The order appealed from here, however, went beyond merely denying a stay. It enjoined any and all proceedings, including arbitration, that might have been pursued by the Union. An injunctive order of this type is clearly appealable, 28 U.S.C. § 1292(a)(1). Firestone also challenges the justiciability of this appeal based upon the fact that subsequent to the submission of this appeal on February 6, 1973, the underlying suit went to trial and on March 9, 1973, the United States District Court for the Middle District of Georgia issued a memorandum opinion containing findings of fact and conclusions of law. The Union, seeking reversal, urges us to decide the case. Firestone urges us to find in mootness a refuge from decision. If Judge Bootle’s decision, in fact, left nothing of the order appealed from to pass upon, then our jurisdiction would be ousted. We do not sit to render advisory opinions as to the interpretation of collective bargaining agreements. This is not, however, such a case. We are unable to say for a certainty that had we found the district court’s injunction erroneously entered the Union would have been remediless. Inasmuch as we are affirming the injunction and thereby leaving the status quo undisturbed, it is unnecessary to catalogue the potential remedies had we reversed and decided the case should never have gone to trial. The justiciability of a controversy should not be dependent upon the result reached. It suffices to say that had we reversed, the possibility for some relief was present and we therefore conclude that the order appealed from is not moot. See Flight Eng. Int’l Ass’n v. National Mediation Board, 1964, 119 U.S.App.D.C. 171, 338 F.2d 280, 282; see also Southwestern Bell Tel. Co. v. Communication Wkrs. of Ab., 5 Cir. 1971, 454 F.2d 1333, 1334; Allen M. Campbell Co. Gen. Con. Inc. v. Lloyd Wood Const. Co., 5 Cir., 1971, 446 F.2d 261, 264. The Union challenges the district court’s finding of non-arbitrability by contending that Art. XI, § 3(b) of the collective bargaining agreement evidences an intent of the parties to arbitrate the question of union fault prior to the commencement of a court suit for breach of the no-strike clause. The court below considered the contract as a whole, particularly the wholly employee-oriented grievance machinery, and concluded that the issue was non-arbitrable. As the district court properly recognized, “First, there is a strong national policy favoring labor arbitration and an order to arbitrate pursuant to an arbitration clause should not be denied unless it may be said with “positive assurance” that the arbitration clause does not reach the dispute in question. United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (I960).” The basis of arbitration is, however, contractual and unless the parties have provided for arbitration in the collective bargaining agreement, the court is powerless to compel arbitration. Numerous cases have held that breaches of a no-strike clause are not subject to arbitration where (1) the grievance provisions of the agreement neither explicitly nor implicitly provide for such arbitration, and (2) the contractual grievance machinery is wholly employee oriented. E. g., Atkinson v. Sinclair Refining Co., 1962, 370 U.S. 238, 82 S.Ct. 1318, 8 L. Ed.2d 462; G. T. Schjeldahl Co., Packaging Machinery Division v. Local 1680, IAM, 1 Cir. 1968, 393 F.2d 502; Boeing Co. v. International Union, 3 Cir. 1967, 370 F.2d 969. The district court correctly applied this principle to the instant contract, and we affirm its finding that the company was not obligated to seek arbitration of the no-strike breach. Although the provisions of Art. XI, § 3(b), when viewed in isolation, might possibly raise an ambiguity as to arbitrability, when placed in the context of the whole contract, particularly the employee-oriented grievance procedures, there can be no question that the parties did not intend arbitration of no-strike breaches. Affirmed. . This suit was originally filed in Georgia State Court and removed to federal court by the Union. Simultaneously with its petition for removal, the Union filed an action against Firestone in the state court in Ohio alleging that Firestone breached the contract by filing the suit in Georgia. Firestone had that action removed to federal court in Ohio. The Ohio proceeding was then consolidated with the Georgia suit in the court below. . That portion of the appeal directed at the district court’s injunction of the Ohio proceedings was dismissed as moot by order of this Court on October 2, 1972. . Art. XI, § 3(b) of the contract reads: “The Company agrees that in consideration of the carrying out of the responsibilities placed upon the International Union and the respective Local Unions and their officer’s, agents and members in Paragraph (a) of this Section that the Company will institute no action for monetary damages against the International Union or the respective Local Unions or their officers, agents or members for breach of said Paragraph (a).”

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Bernice M. STANLEY, etc., Plaintiff-Appellee, v. UNITED STATES of America et al., Appellees. Appeal of MIDWEST CONSTRUCTION CO., INC., First Third-Party Defendant and Second Third-Party Plaintiff. Bernice M. STANLEY, etc., Plaintiff-Appellee, v. UNITED STATES of America et al. Appellants. Nos. 72-1354, 72-1355. United States Court of Appeals, First Circuit. Argued March 7, 1973. Decided April 13, 1973. John W. Ballou, Bangor, Me., with whom Mitchell & Ballou, Bangor, Me., was on brief, for Midwest Construction Co., Inc. Ronald R. Glancz, Atty., Department of Justice, with whom Harlington Wood, Jr., Asst. Atty. Gen., Peter Mills, U. S. Atty., and Morton Hollander, Atty., Department of Justice, were on brief, for United States. Thomas Schulten, Portland, Me., with whom Perkins, Thompson, Hinckley, Thaxter & Keddy, Portland, Me., were on brief, for Bernice M. Stanley. Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges. ALDRICH, Senior Circuit Judge. Plaintiff’s intestate, Stanley, was killed when he fell from a platform inside a Navy antenna tower. Stanley was an employee of a subcontractor of Midwest Construction Co., which was engaged in painting a complex of low-frequency radio towers at Cutler, Maine. Plaintiff, barred by the receipt of workmen’s compensation from suing Stanley’s employer for negligence, brought suit against the government, alleging defective design of the tower. The government claimed over against Midwest, asserting its negligence and breach of its undertaking to “take proper safety . . . precautions to protect . . . the workers.” The district court, in a comprehensive opinion, 347 F.Supp. 1088, found for the plaintiff in her suit against the government, and for the government against Midwest. Both defendants appeal. The tower in question, No. S-O, is an elongated triangular prism, its three legs arising 979 feet from the apexes of a triangular base 12 feet on a side. The sides are skeletal, with a horizontal beam about every 12 feet, with a single diagonal cross of tie-rods, or windrods, so called, in the space between. The inside is empty, except that every 70 feet there is a triangular grating, or platform, 12'xl2'xl2' with a 2'x3' rectangular aperture, or cut-out, to afford access to a ladder which runs down the side to the platform next beneath. These apertures are staggered from platform to platform, as the ladder shifts from one side of the tower to another as one progresses from one platform to the next. Although there was no testimony on the subject, this seems an obvious safety feature, so that the platform at the base of the ascending ladder would be solid. The effect of this, of course, is to require everyone ascending or descending the tower to dismount the ladder and cross over at each platform. The principal purpose of the platform, apart from providing strength to the structure, is to serve as a place of rest. There are no guardrails around the cut-out, and none around the outside of the platform. On the day in question Stanley and two other men were engaged in painting the tower, some 700 feet up. It was Stanley’s second day on the job. He was 20 years old, and without experience or even training in high work. Because of his inexperience he was assigned to work from the platforms, which was thought to be safer. The other workers were a short distance above him, using simply the beams and windrods for support. They clambered about, applying the paint with a mitten. Stanley, having an easier foothold, was using a paint roller on a 6-foot rod, which required both hands. Shortly before the accident he was observed standing in a corner by one leg of the tower on an essentially triangular portion of the platform which was of a small area, because immediately in back of him was the ladder cut-out. He was reaching up with the roller and in no apparent difficulties. Shortly thereafter the other workers heard a clatter, that they took to be the fall of the roller and handle onto the platform, and they then saw Stanley in the air dropping down to the platform below. He died of a crushed skull. The dispute at the trial revolved about two issues — whether the government was liable because of failure to supply guards to the ladders’ cut-outs, and whether Midwest was liable for not taking precautions in view of the absence of such protection. The court found for the plaintiff against the government on the issue of absence of guardrails, and for the government against Midwest on the ground that it should have provided Stanley with a safety belt and attachment, which, it found, would have served as an adequate substitute. One of Stanley’s co-workers testified, without contradiction, that the belt offered them by the contractor did not fit the ladder safety device, and was not usable for the work they had to do. No serious attack is made by anyone on the court’s finding that a different belt should have been provided, or by Midwest on the court’s finding liability over. Having in mind the contractor’s general assumption of safety responsibility as part of its contract, an attack on either of these conclusions would be difficult to sustain. Midwest’s basic position on appeal is that the government was not liable, and that accordingly Midwest was not. Concededly the conclusion follows if the predicate is correct. Plaintiff’s case against the government is based principally upon the testimony of her expert, one DeTarnowsky. DeTarnowsky, relying upon a published American Standard Safety Code for Floor and Wall Openings, Railings, and Toe Boards, testified that good safety practice called for guardrails around the ladder cut-outs. Asked whether these apertures, and their consequent dangers, were not fully obvious, he stated that a man engaged in painting might have his attention diverted, and temporarily “forget” their existence, or proximity. The court accepted this testimony, and on this basis found for the plaintiff. DeTarnowsky conceded that the absence of a guardrail did not constitute a danger to persons climbing the tower, who could be expected to pause on the platform only for a rest. For such persons there would be nothing to distract their attention from the existence of the aperture. To this must be added, because of the court’s obligation to look at the record as a whole, United States v. United States Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746, certain uncontradicted and inherently credible testimony introduced by the defendants that as to such other persons guardrails would have been affirmatively detrimental. It appears that the towers are climbed with some regularity, as the Navy maintains a crew of four persons engaged in servicing the antennae and cables. Such individuals would have to pass through the gate at each platform as they passed from one ladder to the next to reach the top. Not only would this have been an inconvenience, but for them guardrails presented an actual danger. The government safety expert testified, “I think that when they designed this, they considered that any man who used this platform and this ladder would be incumbered by either equipment or by the roller which is a belt which sticks out in front of you, [a safety device used by Navy personnel, not the paint roller] as you know, that he would possibly hang that up on the railing and they decided, and I think properly, not to put a railing around the opening here.” While DeTarnowsky disagreed with the witness vis-a-vis a painter who worked on the platform, he did not contradict the witness’ general conclusion that a guardrail would be an incumbrance to other users, nor, considering the evidence, and the physical structure, do we think he could have. The expert testimony, accordingly, comes to this. The platform, without rails, was a dangerous place for a painter, particularly an inexperienced painter, to work. It was perhaps more dangerous than such a painter might appreciate. On the other hand, as to all other persons, who manifestly used the tower far more frequently, and who would have to traverse apertures 26 times for a single ascent, guardrails were not only not needed, but were to some degree contra-indicated. Furthermore, the special danger applicable to painters could, as the court found, be obviated by the use of safety belts with a tag line attachment. The law of Maine is that a landowner is normally not liable to third parties for dangers that are open and obvious. Orr v. First National Stores, Inc., Me., 1971, 280 A.2d 785, 797. While there is an exception where obviousness may not be enough, Isaacson v. Husson College, Me., 1972, 297 A.2d 98, this is applicable only when the landowner has reason to believe that apparent obviousness will not be sufficient. In the case at bar the government was not dealing with ordinary business invitees, but with specialists, of whom more could be expected. Cf. Gowdy v. United States, 6 Cir., 1969, 412 F.2d 525, cert. denied 396 U.S. 960, 90 S.Ct. 437, 24 L.Ed.2d 425; Barrett v. Foster Grant Co., 1 Cir., 1971, 450 F.2d 1146. It had provided in its contract that the contractor should attend to safety. The court’s “hold[ing] that the United States should reasonably have foreseen that painters, particularly if inexperienced, might lose both sight and consciousness of the nearby, unguarded ladder hole in the otherwise safe platform and back, trip or otherwise fall into it unless safety precautions were taken,” is at best irrelevant in the absence of any evidence that the government should have supposed that the contractor would employ inexperienced workers on such a dangerous job and, more particularly, that it would fail in its obligation to take the safety precautions its workers required. The court’s finding of negligence on the part of the contractor seems clear. With respect to the government, however, looking at “all the circumstances,” as we are cautioned to do in Orr v. First National Stores, Inc., ante, 280 A.2d at 798, it seems peculiarly inappropriate to charge it for not installing guardrail protection for the occasional painter, who could be otherwise protected, at increased risk to the tower’s regular users. The government did what it should, and cannot be held liable. There is, accordingly, nothing for which the third-party defendant must indemnify it, and both complaints must be dismissed. . Midwest objected to the admission of De-Tarnowsky’s testimony as a violation of the pre-trial order’s commitment to give reasonable advance notification of any additional witnesses. We agree that the pretrial order was violated (see also F.R. Civ.P. 26(b)(4)), but this did not, per se, make the testimony inadmissible. Violation merely gives opposing counsel the opportunity to assert prejudice. Midwest might properly have asked for a continuance or, this being a non-jury case, for leave to put on a rebuttal witness later. It did neither. . See cases, post. . On the issue of proximate cause defendants argue at length that it was entirely speculative whether this was the reason that Stanley fell through the hole, suggesting that he might equally have lost his footing, either when about to step onto the ladder, or while on the ladder itself. While it is true that it does not appear what Stanley was doing at the instant of fall, we consider that the very fact that there was a dangerous condition in his immediate presence warranted a finding that it was more likely that he succumbed to the danger than that he injured himself independently. Although Stanley was inexperienced, the evidence was that he was strong and without physical defects. Conversely, we need not discuss certain theories of government liability advanced by the plaintiff at the trial and rejected by the district court, one of which is reargued by the plaintiff. No error appears in this connection. . The court properly rejected the government’s argument that hand rails would have interfered, electrically, with the operation of the tower, but this was another matter. . Although not necessary in the present case, we believe the burden of establishing the exception should be substantial. Otherwise, since whenever a party has been injured the warning has in fact been ineffective, there will be a danger of the exception being found to swallow up the rule. . The district court distinguished Gowdy on the ground that there was there another, safer, way in which the plaintiff could have done his work. It failed to take, however, the next step and discuss that, vis-a-vis the government, there was a safer way the present plaintiff could have done his work, namely with a safety belt that was the contractor’s responsibility. Governmental negligence is equally negated. . The Court found, Negligence in selecting a contractor has apparently been abandoned in plaintiff’s post-trial memorandum, and properly so in view of the absence of evidence. An allegation of the government’s failure to maintain adequate supervision over the contractor has not been pressed. This again seems sensible in the absence of evidence of retained control beyond the right to inspect and object. See W. Prosser, Handbook of the Law of Torts § 71 (4th ed. 1971).” 347 F.Supp. at 1090.

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STATE OF NEW JERSEY, Plaintiff-Appellee, v. Harry Joseph KAISER and Harry J. Kaiser, as Administrator of the Estate of Susan Kaiser, Deceased, Defendants. United States of America, Intervenor-Appellant. No. 72-1075. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) Feb. 13, 1973. Decided March 13, 1973. Herbert J. Stern, U. S. Atty., Newark, N. J., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwax, Bennett N. Hollander, Thomas H. Boersehinger, Tax Div. Dept, of Justice, Washington, D. C., for appellant. Walter J. Dorgan, Gross, Demetrakis, & Donohue, Hackensack, N. J., Albert S. Gross, of counsel, for appellee. Before VAN DUSEN and ADAMS, Circuit Judges, and BRODERICK, District Judge. OPINION OF THE COURT PER CURIAM: The conflicting claims of the United States and Bergen County, New Jersey to a large sum of money, seized during a search of premises suspected of being the site of a gambling operation, form the basis of this appeal. Central to the resolution of these competing claims is the determination whether that fund, to wit $265,000, represents an instrumentality of illegal activity and thus contraband, forfeitable to the state or county, or an accumulation of funds or profits derived from illegal activity, and thus subject to a lien asserted by the United States. The facts giving rise to this controversy are fully explicated in the opinion of the district court, 338 F.Supp. 42, and need only summarization at this point. On July 14, 1960, a raid pursuant to a search warrant was conducted on a house in North Arlington, New Jersey. This house was occupied at that time by Harry Kaiser, Susan Kaiser and Edna Kaiser. The search of the first floor of the house uncovered numbers slips, gambling paraphernalia and a sum of cash totaling slightly more than $18,500. The second floor of the house contained two bedrooms. The search of one of the bedrooms produced $3,650. in a chest of drawers. Further, search of that room revealed a fireproof steel strongbox. Because the Kaisers did not have a key for it, the police had to force open the box. When opened, the box was found to contain $265,000. Beyond this large sum of money, the search produced clothing and two prescriptions, indicating that this bedroom had been occupied by one Joseph Moriarity. Later investigation revealed that Moriarity had in his possession keys which would open the strongbox. Joseph V. Moriarity has an extensive record of involvement in illegal gambling. See Farley v. $168,400.97, 55 N. J. 31, 259 A.2d 201 (1969). In August, 1947, a federal income tax delinquency was assessed against Moriarity and demand for payment made. In 1955, a judgment on this delinquency was entered. Thus, the Federal government has a lien on property belonging to Moriarity. And the claims of the Federal government exceed $265,000. New Jersey has a statutory schema requiring forfeiture of certain seized contraband. N.J.Stat.Ann. § 2A: 152-6 provides that, when seized, “any furniture, implement, device or machine, made or used for the purpose of gambling” becomes the property of the county. It is the county’s burden, however, to prove illegal use. Krug v. Board of Chosen Freeholders, 3 N.J.Super. 22, 65 A.2d 542 (App.Div.1949). N.J.Stat.Ann. § 2A: 152-7, enacted after 152-6, permits the assumption that if money is seized in connection with an arrest for violation of the gambling laws the money is prima facie contraband and forfeitable. Both statutes require, however, that there be an active employment of the money in a gambling operation. See Krug v. Board of Chosen Freeholders, supra. The district courtp relying on Spagnuolo v. Bonnet, 16 N.J. 546, 109 A.2d 623 (1954), stated its belief that the source of the money, not the present utilization of the sum, determines whether it is an element in a gambling enterprise for the purpose of the state forfeiture. Finding that the money was the product of a gambling enterprise, the district court determined that the money was forfeitable. Therefore, it reasoned, the money was not an asset of Moriarity’s and hence not subject to the lien of the Federal government. Thus, the district court held that the state’s claim to the money was to prevail. The district court issued its opinion on October 15, 1971. On January 25, 1972, this Court decided the case of Stapleton v. $2,438,110. Stapleton also involved Moriarity, his tax lien, and money found belonging to him. In Stapleton, as here, there were competing claims for the money, the state claiming that the money was forfeitable under the state statutory arrangement, the Federal government asserting its rights under the tax lien. Implicit in the opinion of the Court and explicit in the concurring opinion of Judge Adams was the differentiation between funds seized which are actually in use in furtherance of a gambling operation and funds which have passed out of the operation and become accumulated profits. In holding that the funds in Stapleton were to go to the Federal government, that case makes clear that only funds actively used in a gambling operation are forfeitable to the state. The determinative issue thus can be stated fairly simply. If the $265,000. is money that is being used as an element in a gambling operation revealed in the search, then, pursuant to the New Jersey statutes, the money is forfeitable to the state. If, however, the money is not an element in the enterprise but “an accumulation of profits from gambling, ‘the stake for which men gamble’ or the product of gambling,” following Staple-ton, it is not subject to state forfeiture. If the money is forfeitable, the Federal lien does not attach because the fund cannot be deemed the property of Moriarity. On the other hand, if the sum is not forfeitable, then, assuming that the sum is Moriarity’s, it becomes subject to attachment by operation of the lien. Our review of the findings of the district court indicates that the $265,000. was not actively used in a gambling operation but was an accumulation of profits or proceeds, of some enterprise, not necessarily the one revealed in the July 14, 1960 search. The numbers operation uncovered in the search of the Kaiser’s house appeared to have receipts for the day totaling approximately $12,000. Uncontradicted expert testimony showed that the cash reserve, or “bank,” necessary to support a numbers operation need be only one-half of the daily handle. Thus, the $265,000. clearly was not the “bank” of that operation. Indeed, the district court stated, “ [I]t was accumulated out of illegal gambling operations. . . . The fact that the $265,000. may not have been used in the daily operation and financing of the gambling business being conducted in the Kaiser residence would in no way affect the presumption that the money was the proceeds of a gambling operation.” Under our holding in Stapleton, these findings require that the fund be awarded to the United States under the lien against Moriarity rather than be forfeited to the state as contraband. Therefore, the judgment of the district court must be reversed. The case will be remanded to the district court for the entry of a judgment in conformity with this opinion. Costs to be taxed to each side. . 454 F.2d 1210 (3d Cir.), cert. denied, 409 U.S. 894, 93 S.Ct. 111, 34 L.Ed.2d 151 (U.S. Oct. 10, 1972). . The Stapleton opinion made reference to the decision of the district court in this case. Although the opinion states that the money seized in this case was “proven to be a part of a current gambling operation” our review of the record and the opinion of the district court indicate the contrary, as will be discussed infra. . 454 F.2d at 1222. . As the Kaisers have disclaimed any rights, title or interest in the $265,000. there can be no question but that the sum is Morinrity’s. . State of New Jersey v. Kaiser, 338 F. Supp. 42, 45 (D.N.J.1971).

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UNITED STATES of America, ex rel. Isiah MACON, Appellant, v. Howard YEAGER, Principal Keeper of the New Jersey State Prison. No. 72-1170. United States Court of Appeals, Third Circuit. Submitted Oct. 17, 1972. Argued on Reconsideration Jan. 17, 1973. Decided March 30, 1973. Gary A. Kroop, Stepacoff, Koch & Kroop, Perth Amboy, N. J., for petitioner-appellant. Terry Philip Green, New Brunswick, N. J., for appellee. Before ADAMS and GIBBONS, Circuit Judges and LAYTON, District Judge OPINION OF THE COURT ADAMS, Circuit Judge. In this appeal, the petitioner seeks review of a decision by the district court denying his application for a writ of habeas corpus. This Court is urged to hold that petitioner’s constitutional rights were violated and that error, not harmless in nature, was committed, when at his state trial, the prosecutor commented during his summation to the jury the petitioner consulted an attorney the day after the alleged crime was committed and suggested that from this the jury should question the innocence of petitioner. Petitioner, Isiah Macon, was convicted in state court of manslaughter and sentenced to serve a term of not less than seven nor more than ten years. It appears that petitioner and one Abrahms had been in a minor traffic accident in New Brunswick, New Jersey. The deceased, Ralph Sasso, arrived at the scene of the accident and became' involved in the discussion between Macon and Abrahms. Both Sasso and Macon had been drinking that evening. During the ensuing altercation Sasso was killed by Macon’s gun. The details of the events leading up to Sasso’s death are in dispute. The state’s evidence indicates that when, in the course of the argument, Sasso placed his hand on Macon’s shoulder, Macon stepped back, drew a gun, shot Sasso twice, and then drove away with friends. Petitioner’s version of the events indicates that Sasso interfered in a racially abusive and aggressive manner, punched Macon twice, assaulted Macon with the help of friends, and was shot by Macon’s gun, which was fired accidentally by Macon during the course of the struggle. It is uncontradicted that after the incident, Macon and his friends drove away and Macon instructed them to give no statements and to take no action until he had consulted his attorney. Macon testified that, alone, he then drove aimlessly around, threw the gun out the car window, parked his car in a place he could not recall, walked home, put his blood-stained shirt away, went to bed, and the next morning telephoned his lawyer and was later arrested. In view of the different accounts of what had happened at the time of the shooting, it thus became crucial for the jury to determine which characterization of the facts was true, the state’s or Macon’s. If the jury credited the state’s evidence, it could very well have brought in a verdict of murder. On the other hand, a belief in petitioner’s testimony and other defense evidence might have supported the view that Sasso’s death was either accidental or the result of Macon’s attempt to repel aggression. During his summation to the jury, the prosecutor commented upon Macon’s actions following the shooting incident: “Then what does he do? He drives along and can’t tell us where. The gun goes out the window. An act of innocence? “The car is left somewhere and he doesn’t remember where. An act of innocence ? “He goes home and puts the shirt down in the chest, a torn shirt. Then he goes to bed. He says he had trouble sleeping. He gets up the next morning and lo and behold, what does he do? He calls his lawyer. These are acts of innocence? (Emphasis added) “I say, ladies and gentlemen, his story is implausible, impossible and you can judge by his own conduct, unbelievable.” (Emphasis added) The defendant made no objection to the comment and did not request the trial judge to offer any instruction to the jury regarding it. Macon’s appeal of his manslaughter conviction to the Appellate Division of the New Jersey Superior Court was rejected. The conviction was later affirmed by the New Jersey Supreme Court, State v. Macon, 57 N.J. 325, 273 A.2d 1 (1971), which lowered his term of incarceration from seven to ten years to two to seven years. Having exhausted his state remedies, Macon sought federal habeas corpus relief, asserting that the prosecutor’s statement about his call to a lawyer violated his Sixth Amendment right to counsel, as applied to the states through the Fourteenth Amendment. The district court denied the writ, holding that, although constitutional error was committed, “the effect on the trial was not sufficiently prejudicial as to require the granting of petitioner’s request for the Writ.” 336 F.Supp. at 71. It should be noted that petitioner does not argue that he was denied counsel or that his defense was presented by a lawyer of less than adequate ability. Rather, Macon claims that the prosecutor’s statement concerning his telephone call to counsel sought, or at least may reasonably be expected to have tended, to raise in the minds of the jurors an inference of guilt and, as a result, penalized him for the exercise of his constitutional right to counsel. New cases deal directly with the question whether a prosecutor’s comment to the jury concerning a defendant’s exercise of the right to counsel is constitutional error. The district court concluded that Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), presented a situation sufficiently analogous to require recognition that constitutional error was committed here. In Griffin, the prosecutor stressed the defendant’s failure to take the stand and urged upon the jury the inference that such failure demonstrated the defendant’s inability to deny his guilt. Holding such prosecutorial comment violative of the Fifth Amendment privilege against self-incrimination, the Supreme Court deemed the statement “a penalty imposed by the courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.” 380 U.S. at 614, 85 S.Ct. at 1232. The Griffin Court focused its inquiry upon whether the petitioner had been .“compelled . . . to be a witness against himself,” U.S.Const. Amend. V, whereas in the present case, the relevant constitutional provision called into question is the Sixth Amendment right to counsel. For the purpose of the “penalty” analysis, however, we perceive little, if any, valid distinction between the privilege against self-incrimination and the right to counsel. It can be argued, with equal vigor and logical support, as to. either the Griffin situation or the present case, that a prosecutor’s comment seeking to raise in the jurors’ minds an inference of guilt from the defendant’s constitutionally protected conduct constitutes a “penalty” on the free exercise of a constitutional right. If we were writing on- a tabula rasa, the “penalty” argument perhaps could be examined from different viewpoints. One mode of analysis would focus upon the person asserting that his rights have been “penalized” and determine whether he has been adversely affected by the state’s use of his constitutionally protected conduct. An alternative analysis would focus upon the particular constitutional right in question and determine whether, and if so to what extent, the state’s use of constitutionally protected conduct has or will “burden” the right, i. e., deter the defendant or others from engaging in the particular constitutionally protected activity. The Griffin majority has accepted the former analysis, at least in the criminal context. In contradistinction to the “absolutist” approach to the “penalty” question employed by Justice Douglas in Griffin, Justice Stewart, in a dissenting opinion in Griffin, urged utilizing an approach that would examine “the concept of compulsion [within] reasonable bounds,” 380 U.S. at 620, 85 S.Ct. at 1236, and would measure the advantages and disadvantages of a rule permitting the prosecutor or judge to comment upon a defendant’s silence at trial. His view, however, was not accepted by the majority. It would appear that the “absolutist” Griffin approach to the “penalty” argument has been diluted somewhat in other contexts. See Shapiro v. Thompson, 394 U.S. 618, 634, 638 n. 21, 89 S. Ct. 1322, 22 L.Ed.2d 600 (1969) (right to travel interstate); Walker v. Yucht, 352 F.Supp. 85 (D.Dela., filed Dec. 6, 1972) (3-judge court). Whatever the proper “penalty” approach may be under different circumstances, however, Griffin holds broadly that, at least in the criminal context, the relevant question is whether the particular defendant has been harmed by the state’s use of the fact that he engaged in constitutionally protected conduct, not whether, for the particular defendant or for persons generally, the state’s reference to such aetivity has or will burden the exercise of the constitutional right. This particular “penalty” analysis would appear to apply equally to the present case as to the Griffin situation. Thus we are constrained to agree with the district court that the prosecutor’s comment to the jury was constitutional error. However, we are unable to conclude, as the district court did, that such error was “harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The Supreme Court has stated that an error of constitutional dimension is not harmless if “there is a reasonable possibility that [it] might have contributed to the conviction.” Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963). The state must “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman, supra, 386 U.S. at 24, 87 S.Ct. at 828. In the present case, because critical portions of the evidence were disputed, the credibility of the petitioner as a witness was a central issue. This is not a situation where the case against the petitioner was otherwise “so overwhelming” that the constitutional error did not, beyond a reasonable doubt, contribute to the conviction. Cf. Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). The prosecutor’s comment concerning Macon’s consultation with counsel the day after the shooting incident would appear to have been directed to, and may have had the effect of, raising in the jurors’ minds the inference that petitioner was, or at least believed himself to be, guilty. Such an inference might certainly tend to cause the jury to disbelieve Macon’s version of the story. Under these circumstances, the possibility of prejudicial impact is present and we, therefore, are unable to conclude that the prosecutor’s comment was “harmless beyond a reasonable doubt.” We recognize that in reversing the district court’s harmless error ground for decision this Court may be thought to be simply substituting its subjective judgment for that of the district court and the state courts. Thus, the New Jersey Supreme Court, in a well-reasoned and articulate opinion by Chief Justice Weintraub, concluded, much like the district court judge, that the prosecutor’s comment was “thoroughly harmless” because “the point defendant attributes to the prosecutor was indeed pointless and a jury would readily understand this to be so. Nor does the result of the trial even faintly suggest harm. Defendant fared as well as he could have hoped.” 57 N.J. at 335, 273 A.2d at 6. While the error may not have contributed to petitioner’s conviction, this Court is simply unable to conclude, on the basis of an independent examination of the record, that “there is [not] a reasonable possibility that [it] might have contributed to the conviction,” and this is the test mandated by the Supreme Court in Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963). Frequently, appellate courts are called upon, in performing an appropriate reviewing function, to determine whether any error that has been committed may be adjudged “harmless.” So often, this is an assignment not free from deep concern. But because it is required, we must resolutely and objectively discharge it, whatever our own personal predilections may be. The judgment of the district court will be reversed, and the case remanded to the district court for action consistent with this opinion. . United States ex rel. Macon v. Yeager, 336 F.Supp. 69 (D.N.J.1972). . In addition to covering at some length the constitutional right and harmless error issues raised in the present appeal, infra, the New Jersey Supreme Court discussed the point that by failing to object and to request a disapproving instruction concerning the prosecutor’s comment, Macon waived his right to claim error. 57 N.J. at 333-335, 273 A.2d 1. Although the state has an interest in treating errors raised at trial differently from those not timely challenged, see Henry v. Mississippi, 379 U.S. 443, 452, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), federal courts considering habeas corpus petitions are not bound by the state procedural rule and must permit a petitioner to raise constitutional issues for the first time in the federal proceeding so long as state procedures have not been deliberately bypassed. See, e. g., Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). There is nothing in the record to indicate that any deliberate bypass occurred in this case. Accordingly, there is no warrant for remanding the cause to the district court to deal with this matter. . See Baker v. United States, 357 F.2d 11, 13-14 (5th Cir. 1966); Fagundes v. United States, 340 F.2d 673, 677 (1st Cir. 1965); Jones v. United States, 111 U.S.App.D.C. 276, 296 F.2d 398, 408-411 (1961) (Fahy, J. dissenting), cert. denied, 370 U.S. 913, 82 S.Ct. 1260, 8 L.Ed.2d 406 (1962); Commonwealth v. Haideman, 284 A.2d 757 (Pa.Sup.Ct.1971) (affirmed by equally divided court) (Roberts, J. dissenting); of. Sharp v. United States, 410 F.2d 969, 972-973 (5th Cir. 1969) (Brown, C. J. dissenting). . Evidence concerning Macon’s consultation with counsel was injected into the case by the prosecutor during cross-examination of petitioner: “Q. You told [your companion] not to tell anyone about this? “A. I said don’t say anything about it until I see my lawyer. “Q. When did you first get ahold of your lawyer? “A. The next morning. “Q. As to your arrest? “A. Before my arrest. “Q. When is the next time that you knew for sure that Mr. Sasso was shot? “A. When the police picked me up and take me to Somerset Jail down there. “Q. If that is so, why did you call [your lawyer] at seven o’clock before they picked you up? Why did you call your lawyer before they picked you up if that is so?

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Albert MENGARELLI, Petitioner-Appellant, v. UNITED STATES MARSHAL IN AND FOR the DISTRICT OF NEVADA, Respondent-Appellee. No. 71-1621. United States Court of Appeals, Ninth Circuit. March 30, 1973. Carl F. Martillaro, Carson City, Nev., M. E. Balt, Weehawkin, N. J., for petitioner-appellant. Bart M. Schouweiler, U. S. Atty., Las Vegas, Nev., for respondent-appellee. Before MERRILL, TRASK and WALLACE, Circuit Judges. MERRILL, Circuit Judge: Following a jury trial, appellant was convicted of conspiracy to evade or defeat the federal excise tax imposed on wagers and to file false income tax returns. Judgment was affirmed on appeal. Mengarelli v. United States, 426 F.2d 985 (9th Cir. 1970). Appellant then sought to vacate his conviction under 28 U.S.C. § 2255. Following an evidentiary hearing his motion was denied, 325 F.Supp. 358. This appeal followed. Appellant contends that in the course of his trial his constitutional rights were violated in two respects. First, he alleges that the charge to the jury by the trial judge amounted to comment on appellant’s failure to testify in his own behalf. Appellant’s defense consisted of only one witness who testified briefly as to appellant’s good character. The district judge instructed the jury that “The law does not compel a defendant in a criminal case to take the witness stand and testify, and no presumption of guilt may be raised and no inference of any kind may be drawn from the failure of a defendant to testify.” Further, during the course of the charge to the jury the court on six occasions instructed that “The law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.” No objection to the charge was interposed and no request was made that such instructions not be given. It is well established in this Circuit that in absence of objection it is not plain error to give the charge in question. United States v. Ballard, 418 F.2d 325 (9th Cir. 1969); United States v. Jones, 406 F.2d 1297 (9th Cir. 1969); Coleman v. United States, 367 F.2d 388 (9th Cir. 1966). Appellant contends, however, that reiteration of the charge in this case amounted to impermissible comment by the trial court upon his failure to testify. We cannot agree. The problem posed by the instruction is that it is a two-edged blade and that the jury in a particular case may react to either edge. Appellant would have us convert it into a one-edged blade and accept as matter of law the proposition that the more the charge is reiterated, the less attention the jurors will pay to it; that they will react more strongly to the fact that it is given at all, while paying no heed to the substance of that which is reiterated. We cannot accept this proposition. For all we know, in this case, reiteration may have been the only way to drive home to the jury the substance of the charge and to overcome the perhaps unforgettable fact that no defense had been tendered. It is trial counsel for the defendant who is best able to appraise the jury; to gauge the effect upon them of failure of the defendant to take the stand or present evidence in defense and to judge how best to proceed under the circumstances. Failure to request that the charge not be given, or to object to its reiteration, can only be construed by us as trial strategy. Second, appellant contends that he did not receive adequate representation by counsel. The court below in this proceeding reviewed the competency of appellant’s attorney, as disclosed by the trial record, and concluded that a competent and professional job had been done. Our review of the record provides no basis for disagreement with this conclusion. Appellant’s principal basis for his contention that representation was inadequate was counsel’s failure to object to the charge to the jury in the respects already discussed. Where counsel otherwise perform in a fully competent manner, a choice of trial tactics, even though deemed unwise in retrospect, can rarely be said to rise to the level of a deprivation of a constitutional right. Cf. Johnson v. Craven, 432 F.2d 418, 419 (9th Cir. 1970). We are wholly unable to conclude that the tactics adopted here were so clearly inappropriate as to deprive appellant of adequate representation. Other complaints of the manner in which counsel conducted the defense as specified by appellant we find to be without substance. Judgment affirmed.

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Edward FALLIS, himself and on behalf of all Mormons in the U. S. Penitentiary, etc., Petitioner-Appellant, v. UNITED STATES of America et al., Respondents-Appellees. No. 72-3076 Summary Calendar. United States Court of Appeals, Fifth Circuit. Feb. 8, 1973. On Rehearing March 14, 1973. Edward Fallís, pro se. John W. Stokes, Jr., U. S. Atty., Anthony M. Arnold, Asst. U. S. Atty., Atlanta, Ga., for respondents-appellees. Before GEWIN, COLEMAN and MORGAN, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I. PER CURIAM: Appellant Fallís, a Mormon presently incarcerated at the federal penitentiary in Atlanta filed a petition for a writ of mandamus, alleging that the prison authorities were guilty of discrimination and harassment toward him and other members of his faith. The District Court for the Northern District of Georgia entered an’order denying relief on all of petitioner’s alleged grounds save his claim of alleged discrimination in access to the telephone. Oh that issue, the court ordered the government to show cause within ten (10) days why this appellant should not be allowed equal access to the telephone. ' [1] The district court has not, as far as can be determined from the apparently complete record before us in this case, entered a final judgment which addresses this one reserved issue. The only order entered thus far is the one which expressly leaves this issue for later determination. Thus, the district court has not yet ruled on all of the alleged grounds for relief and the only order entered thus far cannot be appealed at this time. McLish v. Roff, 141 U.S. 661, 12 S.Ct. 118, 35 L.Ed. 893 (1891); Howell v. Terminal Railroad Association, 5 Cir. 1946, 155 F.2d 807. Therefore, for lack of a final and thus appealable order, this appeal must be and is Dismissed. ON PETITION FOR REHEARING It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby granted. It appears to the court that a final order denying all relief was entered by the district court on January 12, 1973, although not transmitted to this court. We, thus, now have an appealable order and we find that this case is appropriate for summary disposition without oral argument. Petitioner Fallís objects to various specified actions taken by federal penal authorities at the Atlanta facility, alleging an unconstitutional interference with the religious freedom of Mormons within that institution. First petitioner alleges that on one isolated occasion an elder of his church was not admitted to the prison. The facts clearly show that the sole reason for the nonadmission of the elder was that no advance clearance had been obtained by the regular approved elder who accompanied the visitor. Such clearance is required before visitors can enter unescorted by prison personnel. There is no allegation that this was anything more than an isolated instance of failure by the visitor to follow known rules. Petitioner also objects to the refusal of prison authorities to allow Mormon “Family Home Evenings” whereby a Mormon elder and his family “adopt” a convict and visit him in prison for counseling. No other religions are allowed such “family visits” and facilities for such are not available. Thus, these first two practices of the federal authorities are allowable “minor restrictions” on appellant’s rights. See Walker v. Blackwell, 5 Cir., 1969, 411 F.2d 23; Elam et al. v. Henderson, 5 Cir., 472 F.2d 582 (opinion dated Jan. 15, 1973). Appellant’s other contentions are without merit and the order of the district court is Affirmed.

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UNITED STATES of America, Plaintiff-Appellee, v. BOARD OF EDUCATION, INDEPENDENT SCHOOL DISTRICT NO. 1, TULSA COUNTY, OKLAHOMA, et al., Defendants-Appellants, Aaron Lee Smith et al., Intervenors-Appellees, Julie Wilkerson et al., Intervenors-Appellants. Nos. 72-1555, 72-1789. United States Court of Appeals, Tenth Circuit. April 10, 1973. John R. Scott, Atty., Dept, of Justice (David L. Norman, Asst. Atty. Gen., Brian K. Landsberg, Atty., Dept, of Justice, and Nathan G. Graham, U. S. Atty., on the brief), for plaintiff-appellee. David L. Fist, Tulsa, Okl. (C. H. Rosenstein, Tulsa, Okl., on the brief), for Board of Education, Independent School District No. 1, Tulsa County, Oklahoma, and others, defendants-appellants. Sylvia Drew, New York City (Jack Greenberg, James M. Nabrit, III, New York City, and James O. Goodwin, Tulsa, Okl., on the brief), for Aaron Lee Smith, and others, intervenors-appellees. C. B. Savage, Tulsa, Okl., submitted on brief for Julie Wilkerson, and others, intervenors-appellants. Before BREITENSTEIN and DOYLE, Circuit Judges, and KERR, District Judge. BREITENSTEIN, Circuit Judge. This is another chapter in the history of the desegregation of the Tulsa, Oklahoma, public schools. The background and underlying facts are set out in our opinions in United States v. Board of Ed., Ind. S. D. No. 1, Tulsa Co., 10 Cir., 429 F.2d 1253, and 10 Cir., 459 F.2d 720. The only question now before us is whether the district court erred in denying the application of the Board of Education for a stay of an integration plan relating to certain elementary schools. The trial court found that four of the Tulsa elementary schools were de jure segregated, and by a September 3, 1971, judgment ordered the school district to formulate a plan for the desegregation of these schools. We affirmed. See 459 F.2d 720. The Smith group of intervenors applied for certiorari on the question of whether other schools, determined to be de facto segregated, should also have been subject to the desegregation order. See 41 L.W. 3139. The certiorari application is still pending in the United States Supreme Court. On November 15, 1971, the district submitted a desegregation plan which it proposed to implement for the 1972-73 school year. The plan called for the clustering and pairing of the affected black schools with predominately white schools. On December 27, 1971, the court approved the plan with minor modifications and ordered its implementation for the 1972-73 school year. No appeal was taken from this order. On May 3, 1972, the district petitioned the district court for a stay of the December 27 order. The district contends that the implementation of the elementary school desegregation plan will have adverse effect on the district’s educational program and that the elementary school desegregation should await the completion and acceptance of a desegregation plan for the junior high schools. After an evidentiary hearing, the district court found that the plan could be implemented without making drastic reductions in the educational program of the district and without an adverse impact on all the students in the district, and denied the stay. The district recognizes the heavy burden which it bears in trying to upset a denial of a stay of an order abolishing de jure segregation. The Supreme Court has emphasized the obligation of school districts to terminate dual school systems at once. Alexander v. Holmes County Board of Education, 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19; see also Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 14, 91 S.Ct. 1267, 28 L.Ed.2d 554. In essence the argument of the district is that its decision on educational priorities takes precedence over the mandate requiring desegregation. We believe that such a question of priorities is no longer open. See Brewer v. School Board of City of Norfolk, Virginia, 4 Cir., 456 F.2d 943, 947, cert. denied 406 U.S. 933, 92 S.Ct. 1778, 32 L.Ed.2d 136. The constitutional mandate must be obeyed. The Wilkerson group of intervenors argues that the district court abused its discretion by not giving effect to § 803, P.L. 92-318, 86 Stat. 372, which provides that the effectiveness of an order requiring transportation of any student “for the purposes of achieving a balance among students with respect to race * * * ” shall be postponed until all appeals have been exhausted. We doubt the applicability of § 803 to a case such as that before us where the purpose is not to achieve balance but to end de jure segregation. See Drummond v. Acree, 409 U.S. 1228, 1229, 93 S.Ct. 18, 34 L.Ed.2d 33 (Powell, Circuit Justice). In any event the question is moot because this court’s decision affirming the district court order for the desegregation of the elementary schools was filed May 5, 1972, see 459 F.2d 720, and the time for certiorari has run. The pending certiorari application by the Smith group of intervenors concerns an unrelated issue. No appeal was taken from the December 27; 1971, order approving the desegregation plan for the elementary schools. Accordingly, there is no appeal pending which might bring § 803 into operation. We are convinced that the district court did not abuse its discretion in denying the application for a stay. Affirmed.

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UNITED STATES of America, Plaintiff-Appellee, v. Ross William MONTGOMERY and Gordon Montgomery, Defendants-Appellants. No. 72-1801. United States Court of Appeals, Ninth Circuit. March 30, 1973. James T. Ford (argued), Philip V. Sarkisian, Sacramento, Cal., for defendants-appellants. William B. Shubb, Asst. U. S. Atty., (argued), Dwayne Keyes, U. S. Atty., Sacramento, Cal., for plaintiff-appellee. Before BROWNING and GOODWIN, Circuit Judges, and WILLIAMS, District Judge. Honorable Spencer Williams, United States District Judge, Northern District of California, sitting by designation. WILLIAMS, District Judge: Defendants Ross Montgomery and Gordon Montgomery were convicted in the Eastern District of California of violating 18 U.S.C. § 1852. The statute provides in relevant part: “Whoever cuts or wantonly destroys any timber growing on the public lands of the United States shall be fined not more than $1,000 or imprisoned not more than one year, or both. , This section shall not prevent any miner or agriculturist from clearing his land in the ordinary working of his mining claim or in the preparation of his farm, for tillage, or from taking the timber necessary to support his improvements, or the taking of timber for the use of the United States; nor shall it interfere with or take away any right or privilege under any existing law of the United States to cut or remove timber from any public lands.” Defendants admit cutting down a tree on public lands but contend that they have a right to do so as members of the Pit River Indian Nation. This right, it is argued, stems from the aboriginal title claimed by the Pit River Indians in the public lands where the violation occurred. The trial court held that the aboriginal title of the Pit River Indians to these lands has been extinguished. Citing a judgment of the Indian Claims Commission, the trial court found that the “Indian title” was legally extinguished (1) by the Private Land Claims Act of 1851 and (2) by the physical conquest by concentrated military action culminating in the Battle of the Infernal Caverns in 1867. [Memorandum and Order, at page 2, citing Pit River Indians v. United States, 7 Ind.Cl.Comm. 815 (1959)]. The defendants argue vigorously that the ruling is in error. However, this court need not express an opinion on the relative merits of these arguments as Congress did not intend to exclude the Pit River Indians from the proscriptions of 18 U.S.C. § 1852. A careful reading of the statute reveals that it was drafted by Congress with precision. It contains specfic exemptions for miners, farmers, and the United States. Aboriginal title is not exempted and defendants have not cited relevant authority to support their contention that it is a right or privilege within the meaning of 18 U.S.C. § 1852. In addition, the court notes that Congress has enacted a complex legislative scheme controlling the removal and sale of timber from Indian lands without reference to a right of aboriginal title. See 25 U.S.C. §§ 196, 399, 406 and 407. The convictions are affirmed. . The concept of “aboriginal title” is defined by the Supreme Court as a right of occupancy to certain lands held by the Indians that is not recognized as ownership and may be terminated by the United States without compensation. Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 75 S.Ct. 313, 99 L.Ed. 314 (1955).

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UNITED STATES of America, Plaintiff-Appellee, v. Henry Martin RAMOS, Defendant-Appellant. No. 72-1520. United States Court of Appeals, Ninth Circuit. March 29, 1973. James M. McCabe (argued), Benjamin F. Rayborn, Fed. Defenders, San Diego, Cal., for defendant-appellant. Mac Amos, Jr., Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., James W. Meyers, Asst. U. S. Atty., Stephen G. Nelson, San Diego, Cal., for plaintiff-appellee. Before CHAMBERS and HUFSTEDLER, Circuit Judges, and EAST, Senior District Judge. Honorable William G. East, Senior Judge, United States District Court for the District of Oregon, sitting by designation. EAST, Senior District Judge: On March 31,1971, the appellant, Henry Martin Ramos (Ramos), and a co-defendant, Richard Steven Martinez (Martinez), were indicted on two counts. Count two charges Ramos and Martinez with intent to defraud the United States by knowingly receiving, concealing and facilitating the transportation and concealment of some 108 pounds of marijuana, in violation of 21 U.S.C. Section 176a. The defendants were tried by the District Court without a jury. Ramos and Martinez each testified generally to Ramos’ innocence. The District Court found both defendants guilty and sentenced each to custody. This court has jurisdiction pursuant to 28 U.S.C. Sections 1291 and 1294. We affirm. The evidence presented on the government’s case in chief we narrate as follows: On March 20, 1971, an agent of the Border Patrol stopped a 1966 Mustang at a checkpoint on Interstate 8 near Ocotillo, California, approximately three miles from the Mexican border, in order to inspect the vehicle for the presence of aliens. Martinez was driving the car and Ramos was riding as a passenger. After stopping the vehicle the agent directed it to the side of the road, toward a second agent who was observing the vehicle being stopped for his inspection of the car. The agent asked the driver to open the trunk and he replied that he did not have the key. The occupants were asked to exit the vehicle and step to the rear of the car. The agent removed the rear seat and detected the odor of marijuana. Forty-nine kilos of marijuana were removed from the trunk after an agent had forced it open. Both defendants were placed under arrest and handcuffed. Martinez was placed in a patrol car near the load car where he remained until removed from the scene. Ramos was first placed on a dirt pile near the side of the road, some ten feet distant, where he remained until custom agents removed him to a patrol vehicle approximately 50 to 60 feet distant from the area of the load car. Some 30 minutes later, a custom agent (Polish), who was watching Ramos, started to return to the area of the load car upon summons, when he saw a key lying in the dirt near the roadway approximately ten feet distant from the open door of the vehicle in which Ramos was held. Martinez was never seen in the area where the key was found. Subsequently the key was determined by a locksmith to be the key to the trunk of the load vehicle. We examine the evidence under these rulings of this Circuit: “This court has held that when one drives a car laden with contraband, there is a substantial basis from which the trier of fact may infer that the driver has knowing possession of the contraband. United States v. Dixon, 460 F.2d 309 (9th Cir. 1972); United States v. Ascolani-Gonzalez, 449 F.2d 159 (9th Cir., 1971); “It is equally well established that a passenger may not be convicted unless there is evidence connecting him with the contraband, other than his presence in the vehicle. United States v. Thomas, 453 F.2d 141, 143 (9th Cir., 1971), cert. denied, Lucas v. United States, 405 U.S. 1069 [92 S.Ct. 1516], 31 L.Ed.2d 801 (1972); Bettis v. United States, 408 F.2d 563, 567 (9th Cir. 1969).” See United States v. Zamora-Corona, 465 F.2d 427 (9th Cir. 1972); “On an appeal based upon insufficiency of evidence, the evidence produced at the trial must be viewed in the light most favorable to the Government, together with the reasonable inferences which may be drawn therefrom.” Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Crosson, 462 F.2d 96 (9th Cir. 1972); “Possession of marijuana may be constructive rather than actual and such possession may support a conviction.” Moreover, “Possession may be established by circumstantial evidence.” United States v. Zumpano, 436 F.2d 535, 538 (9th Cir. 1970). “The word ‘possession’ as used in [Sec.] 176a, embraces both actual and constructive possession.” Petley v. United States, 427 F.2d 1101, 1106 (9th Cir. 1970), cert. denied, 400 U.S. 827, 91 S.Ct. 55, 27 L.Ed.2d 57, and “Circumstantial evidence is not inherently less probative than direct evidence.” United States v. Nelson, 419 F.2d 1237, 1239 (9th Cir. 1969). It is manifest that the possessor of the key to the trunk of the load car had ready control of the contraband therein, and we conclude that the evidence was sufficient to warrant the finding of guilt. The circumstance of the site of the key in the close proximity of Ramos and at a distance from Martinez inexorably enmeshed Ramos with the key. Further, the trier of the facts could reasonably and rationally infer therefrom that Ramos had possession of the key from sometime before he left the load car until he with scienter surreptitiously divested himself of it at the finding site. The ruling of the District Court was not compromised by the subsequent self-serving testimony of the defendants. “Trier of fact is not compelled to accept and believe the self serving stories of vitally interested defendants. Their evidence may not only be disbelieved, but from the totality of the circumstances, including the manner in which they testify, a contrary conclusion may be properly drawn.” United States v. Cisneros, 448 F.2d 298, 305 (9th Cir. 1971). The judgment of conviction is affirmed.

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UNITED STATES of America, Plaintiff-Appellee, v. Calvin STUBBS and James Jackson, Defendants-Appellants. No. 72-1742. United States Court of Appeals, Sixth Circuit. Argued Feb. 8, 1973. Decided April 6, 1973. Dennis W. Archer, Detroit, Mich., for defendants-appellants; Hall, Stone, Allen, Archer & Glenn by Elliott S. Hall, Alex J. Allen, Jr., Detroit, Mich., on brief. Jill Wine Volner, Washington, D. C., for plaintiff-appellee; Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., Gerard P. Martin, U. S. Dept. of Justice, Washington, D. C., on brief. Before EDWARDS and McCREE, Circuit Judges, and YOUNG, District Judge. Honorable Don J. Young, United States District Judge, Northern District of Ohio, sitting by designation. PER CURIAM. Appellants Stubbs and Jackson were convicted before a United States District Judge in the Eastern District of Michigan, Southern Division, of interference with commerce by means of extortion and of conspiracy to so interfere, in violation of the Hobbs Act, 18 U.S.C. § 1951 (1970). Both were found guilty as principals under 18 U.S.C. § 2 (1970). Stubbs received two seven-year concurrent sentences, and Jackson received two five-year concurrent sentences. Jackson was a building contractor and Stubbs was founder and president of Local 124, United Construction and Trades Union, which was a Negro building trades union organized in opposition to the predominantly white Detroit Building Trades Council. Much of appellants’ brief on appeal is devoted to the claim that Jackson was pursuing a laudable activity in providing needed housing and Stubbs was pursuing a similarly laudable activity in providing needed employment for black tradesmen. The testimony at trial, however, also provided the jury with ample evidence upon which to conclude (as it obviously did) that Stubbs and Jackson conspired to require a man named Sledge and an attorney named Fechheimer to pay $43,000 to Jackson in connection with a building project called the Gladstone Project (which sum Sledge and Fechheimer obviously did not think was owed), and that Stubbs threatened repeatedly to kill Sledge and/or Fechheimer, and offered in addition to kill Sledge’s wife and eight children unless this payment was made. The principal legal defense on appeal is that Jackson didn’t make any threats and, hence, was entitled to have his motion for acquittal granted. There was testimony, however, from which the jury could have found that Jackson made the first demand upon Sledge for the $43,000; that subsequently he told Stubbs about his demand and about Sledge’s refusal; that he also was responsible for bringing Stubbs to a meeting in Fechheimer’s office where threats previously made to Sledge were repeated by Stubbs, and that Jackson walked out of the meeting with the $43,000 which had been extorted by Stubbs’ threats. Under these facts we find no error in the District Judge’s denial of the motion for acquittal. Appellants also seek reversal and new trial, alleging that testimony given by those threatened about Stubbs’ reputation for violence was not admissible. The rule in extortion cases differs from the general rule however. The Second Circuit has stated it as follows: In a Hobbs Act case, the Government must prove that property was extorted from the victim by threats of violence or because of the victim’s fear. Hence appellant’s reputation for violence is relevant as one of the crucial factors in determining this element. Inasmuch as the prosecution provided appellant with advance warning that this evidence would be introduced and the district court carefully cautioned the jury on the limited use of this testimony, there was no error. United States v. DeMasi, 445 F.2d 251, 257 (2d Cir.), cert. denied, 404 U.S. 882, 92 S.Ct. 211, 30 L.Ed.2d 164 (1971). See also United States v. Tropiano, 418 F.2d 1069 (2d Cir. 1969), cert denied 397 U.S. 1021, 90 S.Ct. 1262, 25 L.Ed.2d 530 (1970); Carbo v. United States, 314 F.2d 718 (9th Cir. 1963); United States v. Marchesani, 457 F.2d 1291 (6th Cir. 1972). Additionally, this court has just considered the same issue and followed the reasoning of the above-cited decisions. United States v. Billingsley, 474 F.2d 63 (6th Cir. 1973). We find no reversible error in the District Judge’s instructions to the jury. There was no objection at trial to the instructions now objected to, and we find that they contain no plain error. Fed.R.Crim.P. 30, 52(b). The judgment of the District Court is affirmed.

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Anthony B. CATALDO and Ada W. Cataldo, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. No. 411, Docket 72-1595. United States Court of Appeals, Second Circuit. Argued Jan. 24, 1973. Decided March 27, 1973. Anthony B. Cataldo, New York City, for appellants. Joseph M. McManus, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Bennett N. Hollander, Tax Division, Department of Justice, Washington, D. C., on the brief), for appellee. Before MOORE, HAYS and MANSFIELD, Circuit Judges. PER CURIAM: This is an appeal from a decision of the United States Tax Court, 30 T.C.M. 934 (1971), which determined that there was a deficiency in the amount of $1,-467.91 in the income tax returns of the taxpayers-appellants for the calendar year 1966. The Tax Court also imposed a penalty of $73.40 for the negligence of the taxpayers in keeping their books and records and in preparing their returns (Section 6653(a) of the Internal Revenue Code of 1954). We affirm. Appellant Anthony Cataldo is a cash basis taxpayer who has been a practicing attorney in New York State for many years. During 1966 Cataldo received a number of payments of amounts due on behalf of clients. From such payments Cataldo deducted his legal fees. On his income tax return for 1966 Cataldo reported each such deduction as a legal fee equal to 25 per cent of the total amount of money received. Cataldo claimed that an additional amount from each of the payments received on behalf of clients was “reimbursement” for expenses incurred in previous years in the handling of the matters for which the payments were made. The remainder of the payments after the deductions for legal fees and for expenses was paid out to the clients in whose behalf the payments were made. On his 1966 tax return appellant Cataldo also claimed certain items as deductions for expenses incurred in the ordinary course of his business. The Commissioner objected to these deductions. The Commissioner contends, and the Tax Court agreed, that prior to the trial of this case the taxpayer and the Commissioner entered into a binding oral agreement regarding the disputed deductions for expenses. Cataldo claims that no such binding agreement exists. The Tax Court found that the taxpayer had unreported income in the amount of $427.48 representing the difference between the amount shown by the evidence actually to have been deducted as legal fees and the 25 per cent deductions reported. The Tax Court also disallowed the deduction of income of $1,327.37 reported as “reimbursement” for expenditures on behalf of his clients. Finally, the Tax Court upheld the imposition of a 5 per cent negligence penalty — amounting to $73.40 — pursuant to Section 6653 (a) of the Internal Revenue Code of 1954. Taxpayer’s motions for reconsideration of the findings of fact and for a new trial were denied and this appeal followed. We affirm the challenged findings of the Tax Court. The taxpayer has virtually conceded that he failed to report $427.88 of the amount he received as legal fees. The taxpayer on his current returns deducts his expenses in handling his legal accounts as these expenses occur and does not wait to charge these amounts against the payments when they are received in subsequent years. The Commissioner claimed that Cataldo had already deducted his expenses in the years prior to 1966 when the expenses were incurred and that his deductipn of the expenses from payments received in 1966 was an unjustifiable duplication. Since the taxpayer failed to prove (for example by presenting his returns for prior years) that the reimbursements were not duplicative, the Tax Court’s determination in favor of the Commissioner on this issue must be affirmed. The record is clear that on February 23, 1971, the parties agreed to settle the question of the amounts of certain disputed expense deductions claimed by the taxpayer. There was no suggestion that the agreement was contingent upon the settlement of all of the issues in the case as the appellant vigorously argues. We therefore find that the agreement was valid and binding on the taxpayer. Finally, there is ample evidence in the record to support the Commissioner’s claim that the taxpayer was negligent in keeping books and records and in preparing his income tax returns and to sustain the imposition of the penalty provided by Section 6653(a). . Section 6653(a) reads in pertinent part: “Section 6653. Failure to pay taw (a) Negligence or intentional disregard of rules and regulations with respect to income or gift taxes. — If any part of any underpayment (as defined in subsection (c) (1)) of any tax imposed by subtitle A or by chapter 12 of subtitle B (relating to income tax and gift taxes) is due to negligence or intentional disregard of rules and regulations (but without intent to defraud), there shall be added to the tax an amount equal to 5 percent of the underpayment.” . Appellant Ada Cataldo is a party to these proceedings solely by virtue of having filed a joint Federal income tax return with her husband Anthony Cataldo. Therefore, Anthony Cataldo will be referred to in this opinion as the taxpayer.

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Rudolph A. SCHULTZ, Plaintiff-Appellee, v. EVELYN JEWELL, INC., and Steamship Mutual Insurance Company, Defendants-Appellants. No. 71-3617. United States Court of Appeals, Fifth Circuit. April 18, 1973. Michael L. McAlpine, New Orleans, La., for defendants-appellants. James A. Wysocki, New Orleans, La., for plaintiff-appellee. . Before GEWIN, BELL and GODBOLD, Circuit Judges. GODBOLD, Circuit Judge: Plaintiff filed suit claiming damages for injuries sustained in an assault by Pettis, a fellow crew member of a shrimp trawler, claiming unseaworthiness of the vessel and negligence of its owners. In a jury trial defendant’s motion for a directed verdict was denied. The jury found the vessel seaworthy but the owners negligent and plaintiff 20% eontributorily negligent, and awarded damages to plaintiff. If there survives an action for negligence, not swallowed up by the doctrine of unseaworthiness for employment of a “defective crew,” Clevenger v. Star Fish & Oyster. Co., 325 F.2d 397 (CA5 1963), the plaintiff did not present sufficient evidence to take the negligence issue to the jury. The court erred in denying defendant’s motion for a directed verdict, consequently the case must be reversed. The only crew members of the vessel were the captain, plaintiff and Pettis. The vessel returned to port after a fishing trip and was docked. Pettis was allowed to live aboard the boat when it was at dock. The captain, and then plaintiff, went ashore. Plaintiff returned later to retrieve a cigarette lighter and found Pettis and friends from other vessels dining on fish from the trawler’s catch. An argument ensued between plaintiff and Pettis over division of the catch, and the affray ensued. According to the evidence Pettis had drunk two cans of beer. The only evidence of negligence by the captain was that he had introduced, or allowed the introduction, of either two cans or a six-pack of beer aboard the vessel; he had docked the shrimper near a saloon and left plaintiff and Pettis aboard unsupervised; and he had failed to designate how the catch should be divided. This was insufficient evidence to permit submission of negligence to the jury. Boeing v. Shipman, 411 F.2d 365 (CA5 1969). Plaintiff also refers to negligence based on the theory that his assailant was a person of known vicious character or one whom the master or officers should have known was of vicious character. 2 Norris, Law of Seamen, § 691 p. 397; Kyriakos v. Goulandris, 151 F.2d 132 (CA2 1945). The only evidence to which plaintiff can point in support of such a theory is that Pettis was a large and powerful man, bigger and stronger than plaintiff, and possessed of a full set of whiskers which caused him to be known as “the Beard.” This is no evidence at all of viciousness. Reversed. . There was no evidence that the captain knew that Pettis was a drinking man.

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Robert L. CARDILLO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 72-2934 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 28, 1973. Joel Robrish, Miami, Fla. (Court appointed but not under ACT), for petitioner-appellant. Robert W. Rust., U. S. Atty., Raymond B. Ray, Asst. U. S. Atty., Miami, Fla., for respondent-appellee. Before WISDOM, AINSWORTH and CLARK, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: In this petition under 28 U.S.C. § 2255 (1971), Robert L. Cardillo seeks to withdraw a guilty plea accepted by the District Judge on September 17, 1971, which resulted in a three-year sentence to run consecutively with a fifteen-year sentence imposed in another ease. Petitioner alleges, that his plea was involuntarily entered in violation of the principle announced in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), because he was induced to enter the plea by an unkept promise of a concurrent sentence. The promise was made by the Government when Cardillo first pled guilty on July 28, 1971. However, prior to sentencing Cardillo made a motion to withdraw his plea, and the motion was granted due to confusion about the agreement. When Cardillo came to trial on September 17, 1971, he once again asked to plead guilty, this time knowing he did so without the benefit of any promise from the Government regarding a concurrent sentence. Affirmed.

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WHITNEY NATIONAL BANK OF NEW ORLEANS, Appellant, v. TRANSAMERICA INSURANCE COMPANY, et al. No. 71-1987. United States Court of Appeals, Third Circuit. Argued Oct. 3, 1972. Submitted En Banc Dec. 13, 1972. Decided March 14, 1973. John J. Monigan, Stryker, Tams & Dill, Newark, N. J., William T. Sutphin, Princeton, N. J., for appellant. Charles H. Hoens, Jr., Lum, Biunno & Tompkins, Newark, N. J., for appellees. Before SEITZ, Chief Judge, and KALODNER, HASTIE, VAN DUSEN, ALDISERT, ADAMS, and GIBBONS, Circuit Judges. OPINION OF THE COURT HASTIE, Circuit Judge. A national banking corporation, domiciled and doing business in Louisiana, filed this action for breach of contract against a group of insurance companies, severally incorporated in states other than Louisiana, that had joined in insuring the bank against certain risks. Invoking diversity jurisdiction, the Louisiana plaintiff elected to sue in the District Court for the District of New Jersey. The contract in question is a standard “Bankers Blanket Bond”. The bank suffered the loss in suit when a borrower defaulted and warehouse receipts that the bank had accepted as security for the loan proved to be worthless or, at best, worth only a small fraction of their apparent value. Whether the bond insures against this loss depends essentially upon the interpretation of a clause in the bond that protects the insured against loss through extending credit “on the faith of . any written instruments which prove to have been counterfeited . . . . ” Holding that the warehouse receipts were not “counterfeited”, the district court denied recovery. When this appeal from that decision was argued to a panel of this court question arose about the correctness of an earlier relevant, and perhaps controlling, decision of this court. Accordingly, this appeal has been submitted to the court en banc for decision. This dispute arises out of secured loans aggregating more than $3,400,000 that the plaintiff bank made to Allied Crude Vegetable Oil Refining Corp. in September, 1962. As collateral the bank accepted documents which on their face were duly executed non-negotiable warehouse receipts of warehousing and tank storage companies that were wholly owned subsidiaries of American Express Co. Subsequently, new warehouse receipts were substituted for those originally deposited. Each of the warehouse receipts showed on its face that a specified large quantity of crude soybean oil was stored and being held at a specified place by the issuing warehousing company. However, after the borrower defaulted it was discovered that at the time the warehouse receipts were issued the oil actually in the warehousing company’s field storage tanks was at most a small fraction of the amount shown in the warehouse records upon which the pledged warehouse receipts had been based. The warehousing companies administered tank farms with capacity for storage of hundreds of million pounds of oil. During a normal week millions of gallons of oil would be accepted for storage and pumped into the field tanks and millions of gallons would be claimed by holders of warehouse receipts and pumped out for delivery to them. No particular oil was segregated and held for a particular bailor. Rather, the responsibility of the bailee was to hold in its custody at all times a total quantity of oil equal to the aggregate quantities shown on outstanding warehouse receipts. The wrongdoing in this case involved repeated incorrect measurements and false reports of the amounts of oil in storage. Apparently this gigantic swindle was contrived by the bailor, Allied Crude Vegetable Oil Refining Corp., with the witting or unwitting assistance of employees of the warehousing bailee. The district court made no finding as to details of the scheme. As has been stated, the bond in suit insured the bank against losses suffered by reliance upon instruments “which prove to have been counterfeited .” The bond also contained general language excluding from its coverage losses resulting from fraud, except as otherwise specifically provided. All parties recognize that the loss in suit resulted from a gross fraud. However, if the warehouse receipts upon which the bank relied were, as the bank contends, “counterfeited” within the meaning of the bond, the insurer is liable. The parties agree that in this diversity case the interpretation of the contract of insurance is governed by Louisiana law. But neither the research of the parties nor our own has disclosed anything in the Louisiana statutes or decisions that provides decisive guidance to the interpretation of “counterfeited” in the present context. In Fidelity Trust Co. v. American Surety Co., interpreting the same language of a standard bankers bond in a case governed by Pennsylvania law, this court concluded that “counterfeited” did cover certain assignments of accounts receivable. Each account was evidenced by a duplicate'invoice, duly executed on the borrower’s regular billing form and unexceptional on its face. However, some of these invoices were fraudulent in that they represented purported sales that in fact had not taken place. In that case we found nothing in Pennsylvania law that would guide us in the interpretation of the bankers bond. Thus our problem of interpreting the bond was essentially like the one that confronts us now. We held that, where no sale had in fact been made, a duly executed invoice for a fictitious transaction was “counterfeited”. However, almost all of the courts that have had occasion to interpret the standard bankers bond since that time have reached a contrary result. These cases decide that “counterfeited” connotes spurious or imitative execution of a document as distinguished from the document's explicit or implicit misrepresentation of facts other than the genuineness of execution. The cited cases constitute impressive authority contrary to our earlier decision. We are persuaded that they are soundly reasoned. Accordingly, we no longer will follow Fidelity Trust Co. v. American Surety Co. The judgment will be affirmed. . The then standard bond did not define “counterfeited”. We are told that “counterfeited” is defined in the form of bond now used. . Fidelity Trust Co. v. American Surety Co., 3d Cir. 1959, 268 F.2d 805. . Supra note 2. . Maryland Casualty Co. v. State Bank & Trust Co., 5th Cir. 1970, 425 F.2d 979 (warehouse receipts); First National Bank of Memphis v. Aetna Casualty & Surety Co., 6th Cir. 1962, 309 F.2d 702 (warehouse receipts); Exchange National Bank of Olean v. Insurance Co. of North America, 2d Cir. 1965, 341 F.2d 673 (invoices); North Carolina National Bank v. United States Casualty Co., 4th Cir. 1963, 317 F.2d 304 (invoices); Capitol Bank of Chicago v. Fidelity and Casualty Co. of N. Y., 7th Cir. 1969, 414 F.2d 986 (accounts receivable); State Bank of Poplar Bluff v. Maryland Casualty Co., 8th Cir. 1961, 289 F.2d 544 (chattel mortgages). But cf. United Pacific Ins. Co. v. Idaho First National Bank, 9th Cir. 1967, 378 F.2d 62 (cashier’s check).

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William Ernest DICKERSON, Individually, etc., et al., Plaintiffs-Appellants-Cross-Appellees, v. CONTINENTAL OIL COMPANY, Charles N. Duddleston d/b/a Duddleston Welding Company, Defendants, and Insurance Company of North America, Intervenor-Appellee-Cross-Appellant. No. 72-2479. United States Court of Appeals, Fifth Circuit. April 6, 1973. William B. Baggett, R. Scott McClain, Lake Charles, La., for plaintiffs-appellants. Thomas M. Bergstedt, Lake Charles, La., for intervenor-appellee. Before JOHN R. BROWN, Chief Judge, and THORNBERRY and MORGAN, Circuit Judges. PER CURIAM: The narrow question is whether on remand following an earlier appeal, Dickerson v. Continental Oil Company, 5 Cir., 1971, 449 F.2d 1209, the trial court could now declare that interest should be allowed on the amounts admittedly due the Intervenor compensation carrier under the Longshoremen’s Act. How this came about and how the trial court answered it is set out in Judge Hunter’s opinion in the Appendix. We get to the same result but by a different route. It is perfectly plain that without characterizing the omission of interest from the judgment as a “clerical mistake” or otherwise, the trial Judge was clearly of the view that on usual principles of subrogation, both statutory and equitable, to make it whole the carrier was entitled to interest on the sums paid out in medical and compensation benefits. Although we may assume without deciding that upon the issuance of our mandate of remand (which did not affect this portion of the judgment, which was silent as to interest, note 1, supra) the trial court could not add to or modify that portion of the judgment to provide interest or even entertain a 60(b) or similar post-remand request to do so without first seeking permission from the Appellate Court, Rogers v. Consolidated Rock Products Co., 9 Cir., 1940, 114 F.2d 108; Rhodes v. Houston, D.C.Neb., 1966, 258 F.Supp. 546, cert. denied, 397 U.S. 1049, 90 S.Ct. 1382, 25 L.Ed.2d 662; Wilson Research Corp. v. Piolite Plastics Corp., D.C.Mass., 1964, 234 F.Supp. 234; Albion-Idaho Land Co. v. Adamas, D.C. Idaho, 1945, 58 F.Supp. 579, this consequence flows from our mandate, not because of any actual or supposed restrictions on F.R.Civ.P. 60(b) post-judgment relief. Since terms, as such, no longer exist, this Court has the innate power to recall and then relax its mandate on a proper showing. Meredith v. Fair, 5 Cir., 1962, 306 F.2d 374. The more orderly way is, of course, for the party affected to formally petition this Court to relax or modify its mandate to permit the trial court to take the requested action. But in a structure of rules which at every stage envisages the attainment of substantial justice with a minimum of technicalities, there is no insurmountable need for such a formal motion. We can, and as we have before, Bros. Incorporated v. Davidson, 5 Cir., 1964, 330 F.2d 65, 67, we treat the present appeal as in effect, a post-judgment-post-mandate request. Assuming, without deciding, that the District Court’s order was ineffectual, we treat the appeal as a request to relax our mandate which we grant and thereby infuse vitality in order. See, Rogers v. Consolidated Rock Products, supra. Affirmed. APPENDIX HUNTER, District Judge: Judgments were rendered by this court on November 14, 1969. Plaintiffs timely filed a motion to amend the judgment in their favor to allow interest from date of judicial demand. Our final judgment read : “The plaintiffs’ motion to allow interest from date of judicial demand rather than date of judgment is granted, and the original judgments are modified in that particular.” Appeals were taken to the Court of Appeals for the Fifth Circuit. Judgments were affirmed on September 28, 1971. 449 F.2d 1209. Defendants have now paid off the full amount of the judgments in each case and obtained releases from all plaintiffs and from the intervening compensation insurer, IN A. Pursuant to Louisiana law the plaintiffs were paid in accordance with their prayer for legal interest from date of judicial demand on the entire amount awarded in each case. INA contends that it is entitled to that part of the judicial interest attributable to its intervention. Plaintiffs, on the other hand, have paid to intervenor the principal amount of the intervention in each case. The amount in dispute is in excess of $15,000. This money has been placed in the Registry of the Court pending judicial determination of the dispute. Plaintiffs correctly assert that INA is now trying to amend, rewrite and revise a judgment dated March 4, 1970, affirmed September 28, 1971. It is true that intervenor made no complaint as to the non-allowance of interest by post-trial motion or by appeal, although intervenor did appeal from other aspects of the judgment adverse to it. Plaintiffs’ argument that intervenor’s present endeavor fails under Rule 59(e) and Rule 60 has merit. Especially is this true in view of the Fifth Circuit’s opinion in Transit Casualty Company v. Security Trust, 441 F.2d 788, to the effect that 60(b)(1) and 60(b) (6) are not pari passu and are mutually exclusive. Nevertheless this court has broad equitable power under 60(b)(6) which may be invoked to prevent extreme hardship. I have grave reservations as to whether the situation here falls within that category, but considering the action here to be an independent one seeking relief to reform a judgment (West Va. Oil v. Breece Lumber, 5 Cir., 213 F.2d 702), we will conclude as follows: 1. INA is to receive interest (5% in this ease) from date of their intervention until paid on all sums paid prior to the date of their intervention. 2. INA is to receive interest (5%) on all other amounts from date of “payment”, as opposed to date of judicial demand. * * * «• # /s/ Edwin F. Hunter, Jr. UNITED STATES DISTRICT JUDGE . AMENDED JUDGMENT IT IS ORDERED, ADJUDGED AND DECREED that there he judgment against Continental Oil Company, and in favor of: [Here is listed the amounts allowed to 12 Plaintiffs] together with legal interest on each of the aforesaid judgments from the date of judicial demand until paid. IT IS FURTHER ADJUDGED AND DECREED that the Insurance Company of North America be paid by preference and priority out of each award for any and all amounts paid out pursuant to the Longshoremen’s and Harbor Workers’ Compensation Act. The Insurance Company of North America is to be given credit against any future exposure under the Longshoremen’s Act. * $ $ $ * . What we regard as the equivalent of what may have been done has in fact been done. In response to the Court’s post-argument memoranda the carrier has, in effect, requested this Court to amend or clarify its prior mandate. Although here the cart came before the horse, it is inconsequential in view of our holding. . We reject the cross appeal of the carrier as frivolous.

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Leonard LONDON et al., Plaintiffs-Appellants, v. The EAST FELICIANA PARISH POLICE JURY et al., Defendants-Appellees. No. 72-3111. United States Court of Appeals, Fifth Circuit. March 13, 1973. Stanley A. Halpin, Jr., George M. Strickler, Jr., New Orleans, La., for plaintiffs-appellants. John F. Ward, Jr., Baton Rouge, La., for East Feliciana School Board. David L. Norman, Asst. Atty. Gen., Civil Right Div., Dept, of Justice, Washington, D. C., Richard Kilbourne, Dist. Atty., Clinton, La., for East Feliciana Parish Police Jury. William J. Guste, Jr., Atty. Gen., of La., Baton Rouge, La., for McKeithen. Before TUTTLE, THORNBERRY and DYER, Circuit Judges. PER CURIAM: Plaintiffs, registered voters in East Feliciana Parish, Louisiana, brought suit in the district court to challenge the constitutionality of the apportionment, of the East Feliciana Parish School Board. Following some related hearings in a companion case, the district court ordered the School Board to submit a reappointment plan to the Attorney General of the United States within ten days. After its first plan was rejected, the School Board submitted a modified plan, which was approved by the Attorney General. The district court, faced with impending School Board elections, denied each party’s motion for summary judgment and denied the plaintiff’s request for a trial, but did allow the parties tefi days to submit depositions on the merits. Based largely on these depositions, the district court, 347 F.Supp. 132, concluded that the plaintiffs had not satisfied their burden of proof, upheld the plan against the constitutional challenge, and ordered its immediate implementation. We reverse. As this court stated in Thompson v. Madison County Board of Education, 5 Cir., 1973, 476 F.2d 676: Due process mandates that a judicial proceeding give the affected parties an opportunity to be heard on the allegations asserted in the complaint and to present evidence and argument on the contested facts and legal issues framed by the answer to the complaint. This did not occur in the court below. The district court, in an attempt to avoid undue interference with the upcoming elections, entered its judgment without affording the parties “a full and fair trial on the claims properly before the court.” Id. at 678. We thus must return this case to the district court so that the plaintiffs may have an adequate opportunity to develop their case in accordance with the principles stated in Madison County School Board, supra. With the case in this posture it would, of course, be inappropriate for us to indicate our views on the constitutionality vel non of the School Board’s reapportionment plan. Reversed and remanded. . The plaintiffs also challenged the apportionment of the parish Police Jury. This aspect of the case below was settled by a consent decree after the Police Jury’s reapportionment plan was approved by the Attorney General of the United States.

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UNITED STATES of America, Plaintiff-Appellee, v. Alex NOLAN and Dun Dun Hemingway, Defendants-Appellants. No. 72-2769 Summary Calendar. United States Court of Appeals, Fifth Circuit. April 17, 1973. Harry Connick, New Orleans, La. (Court-appointed), for defendants-appellants. Gerald J. Gallinghoüse, U. S. Atty., Robert L. Livingston, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee. Before BELL, GODBOLD and INGRAHAM, Circuit Judges. Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: In conformity with the requirements established by Anders v. California, 1967, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 we have carefully considered this cause in its entirety, and conclude that there is no arguable merit in the appeal. It is therefore ordered that the motion filed by Harry Connick, Esquire, for leave to withdraw as court-appointed counsel for Appellant is granted, and the appeal is dismissed. See Local Rule 20; United States v. Minor, 5th Cir. 1971, 444 F.2d 521; United States v. Crawford, 5th Cir. 1971, 446 F.2d 1085.

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Application of The BISSETT-BERMAN CORPORATION. Patent Appeal No. 8932. United States Court of Customs and Patent Appeals. April 26, 1973. George F. Smyth, Smyth, Roston & Pavitt, Los Angeles, Cal., attorneys of record, for appellant. S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents; R. V. Lupo, Washington, D. C., of counsel. Before MARKEY, Chief Judge, RICH, BALDWIN, LANE, Judges, and ALMOND, Senior Judge. ALMOND, Senior Judge. This is an appeal from the decision of the Trademark Trial and Appeal Board, 167 USPQ 640 (1970), affirming the examiner’s refusal to allow appellant’s application to register the mark “E-CELL” for electrolytic cells on the ground of likelihood of confusion, within the meaning of section 2(d) of the Trademark Act of 1946 (15 U.S.C. § 1052(d)), with the registered trademark “E” for electrical circuit components. The record reveals that this is appellant's second attempt to register the mark E-CELL. The response of the board to appellant’s first attempt was to affirm the decision of the examiner refusing to register the mark because of likelihood of confusion with the same E mark involved in this appeal (153 USPQ 691). No review was sought of the board’s decision, appellant allowing its application to become abandoned to afford opportunity to file an application at a subsequent time under section 2(f) of the Trademark Act of 1946 (15 U.S.C. § 1052(f)). After elapse of the five-year period prescribed in section 2(f), appellant filed the instant application. The examiner refused registration on the ground of likelihood of confusion with the same E mark notwithstanding appellant’s assertion that the mark had obtained “secondary meaning” and was entitled to registration under section 2(f). The examiner observed that he did “not believe that Section 2(d) can be nullified by evidence under Section 2(f).” Appellant’s contention that its mark had obtained “secondary meaning” was supported by an affidavit of its president which substantially attested as follows: (1) that the mark had been used in commerce since 1963 on applicant’s electrolytic cells; (2) that ten million dollars in sales of electrolytic cells had ■been made; (3) that the mark E-CELL had acquired a secondary meaning; (4) that there is a substantial difference between the goods (electrolytic cells) on which the subject mark is used and the goods (resistors, capacitors and semiconductors) on which the registered mark is used; (5) that within applicant’s knowledge and belief the registrant (Erie Resistor Corporation) has not marketed, does not market, and does not intend to market electrolytic cells; and (6) that applicant is not aware of any actual confusion between the registered mark E for electrical circuit components and appellant’s mark E-CELL for electrolytic cells. We think it pertinent to point out that on the issue of likelihood of confusion involving these same marks, finally determined adversely to appellant here in that earlier proceeding, the board observed : The asserted differences between applicant’s goods and those set forth in the registration are matters which were or should have been argued before the Board in the prior proceedings; and, apparently, they were not sufficient to persuade the Board that confusion in trade was not likely to occur. In fact, the only new circumstances introduced in this record is the fact that applicant, since the decision in question, has enjoyed substantial sales of “E-CELL” electrolytic cells without any evidence of conflict with registrant’s “E” components coming to its attention. However, this cannot conclusively establish in a proceeding of this character that confusion has not or could not occur. But, in any event, it is clear from the express language of Section 2(d) that the test to be applied thereunder is likelihood of confusion rather than actual confusion. The issue is whether appellant’s mark E-CELL for electrolytic cells so resembles the mark E for electrical circuit components as to be likely to cause confusion within the meaning of section 2(d). This is the dominant issue irrespective of whether appellant has established that its mark has acquired a “secondary meaning.” Comparison of the language of sections 2(d) and 2(f) renders it clear that section 2(f) does not negate the requirements of section 2(d) embracing the matter of likelihood of confusion. In pertinent part, section 2(f) reads as follows: Except as expressly excluded in paragraphs (a)-(d) of this section, nothing in this chapter shall prevent the registration of a mark used by the applicant which has become distinctive of the applicant’s goods in commerce. (Emphasis added.) It is obvious that what is expressly excluded in paragraph (d) is registration of “a mark which so resembles a mark registered in the Patent Office * * * as to be likely, when applied to the goods of the applicant, to cause confusion * * It is apparent therefore that the express exclusion under section 2(d) constitutes a bar to registration which cannot be negated by evidence produced under section 2(f). The conclusion is inevitable, therefore, that whether or not appellant’s mark has acquired a secondary meaning is not controlling on the only question on appeal, viz., likelihood of confusion between the two marks. When we consider the marks as a whole and the commercial impression they make, it is our view that customers familiar with goods sold under the E mark might assume that goods bearing the mark E-CELL emanate from the same source. A comparison of the two marks reflects the common use of the letter “E,” the difference being that appellant’s mark uses the word “CELL,” which is merely suggestive of the goods associated with the mark. The dominant portion of appellant’s mark is the same as that of registrant’s mark, viz., E. The respective goods in each case are electrical equipment. Therefore, in our view the marks are so similar as to be likely to confuse purchasers as to the origin of the goods. We think it significant that we find nothing of record to controvert the statement of the board in its previous decision (153 USPQ at 692) that: The photographs submitted with the application show that applicant’s cell includes a transistor, two resistors, and a tube of some sort. The cited registration covers capacitors, resistors, semiconductors and combinations thereof. This constitutes an unrefuted finding of the similarity of components used by appellant in constructing its electrolytic cell to those electrical components associated with registrant’s mark. The main thrust of appellant’s argument relating to likelihood of confusion is based on the affidavit of its corporate president that he is not aware of any actual confusion resulting from appellant’s use of the mark and any use by Erie of the E mark. The fact that appellant is not aware of any actual confusion is not conclusive that actual confusion does not exist or that there is no likelihood of confusion. This principle was aptly stated in In re Apparel, Inc., 144 USPQ 330, 331 (TTAB 1964): Moreover, the statement by applicant’s president that for more than fifteen years it has used its mark * * * without a single instance of confusion with the cited registered mark coming to his attention cannot conclusively establish in a proceeding of this character that confusion has not or could not occur. But, in any event, it is clear from the express language of Section 2(d) that the test to be applied thereunder is likelihood of confusion rather . than actual confusion. Appellant argues that res judicata was improperly applied in this case. In fact, this principle was not applied below. The decision of the board, while referring to its previous decision involving the same two marks, concluded that the “new circumstances” intervening subsequent to its previous decision were not persuasive to negate the likelihood of confusion noted in its earlier decision. We find no reversible error in the decision below, and it is accordingly affirmed. Affirmed. . Serial No. 303,258 filed July 22, 1968. . No. 751,588 registered June 25, 1963. . Affirmed 336 F.2d 1022, 54 CCPA 733 (1966).

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J. Allan CAMPBELL and John C. Babcock, Appellants, v. Albert WETTSTEIN et al. Patent Appeal No. 8805. United States Court of Customs and Patent Appeals. April 5, 1973. Sidney W. Russell, Arlington, Va., John Kekich, Kalamazoo, Mich., attys. of record, for appellants. Joseph G. Kolodny, Summit, N. J., atty. of record, for appellee. Wenderoth, Lind & Ponack, Washington, D. C., of counsel. Before MARKEY, Chief Judge, and RICH, ALMOND, BALDWIN and LANE, Judges. RICH, Judge. This appeal is from the decision of the Board of Patent Interferences awarding priority of invention to Wettstein et al. (hereinafter Wettstein), the senior party, as to four counts relating to certain 7a — lower alkyl-19-rior androstene steroid compounds. Wettstein is involved on his patent No. 3,301,879, issued January 31, 1967, on application serial No. 324,854, filed November 19, 1963, which the board held entitled to the January 25, 1963, convention priority date of a corresponding Swiss application for constructive reduction to practice of the interference subject matter. Campbell et al. (hereinafter Campbell) are involved on application serial No. 446,395, filed April 7, 1965. The board found, as the basis of its decision, that certain biological evaluation tests performed by Campbell’s witnesses “are insufficient to establish ' an actual reduction to practice of the invention of the counts.” We disagree, and reverse the decision of the board. The Subject Matter The counts which correspond to claims 1-4 of the Wettstein patent, read as follows : 1. A 19-nor-androstene of the formula in which Ri and R3 each represent a member selected from the group consisting of a free, an esterified and an etherified hydroxyl group, R2 represents a lower alkyl group and R4 stands for a member selected from the group consisting of hydrogen, lower alkenyl, lower alkinyl, halogenated lower alkenyl and halogenated lower alkinyl, and R3 and R4 taken together represent oxygen, the above ésterified hydroxyl groups being derived from carboxylic acids having at most 20 carbon atoms and said ether groups being members selected from the group consisting of hydrocarbon and halogenated hydrocarbon except for the ether oxygen linkages. 2. A4-3:17P - dihydroxy - 7a - methyl - 17a - ethinyl - 19 - nor - androstene. 3. A4-3:17p - diacetoxy - 7a - methyl - 17a - ethinyl - 19 - nor - androstene. 4. A4-3:17 - dihydroxy - 7a - methyl-19-nor-androstene. According to the Wettstein patent specification, the above 19-nor-andros-tene compounds * * * possess valuable pharmacological properties. Inter alia they display in test animals anabolic-androgenic activity with a particularly high ratio of the anabolic to the androgenic effect. This enables them to be used as anabolic agents. A particularly high anabolic action is found in those compounds of the Formula 1 [same as in count 1, supra] in which Ri and R3 each represents a free or esterified hydroxyl group, R4 a hydrogen atom or a methyl or ethyl group and R2 stands for a methyl group. Moreover, the compounds, and especially those which have an unsaturated hydrocarbon radical in 17a position, those for instance in which R4 is an ethinyl group, have antigonadotropic, gestagenie and anti-hypercholesterinemic action. Other than general disclosure that the new androstenes “may be used as medicaments * " * in the form of pharmaceutical preparations” in various specific dosage units and forms “suitable for enteral or parenteral administration,” as well as three examples relating to preparation of certain dosage forms, the Wettstein patent contains nothing further relating to the usefulness of the claimed compounds. Campbell’s specification contains similar disclosure. It observes that compounds including those within the scope of the counts * * have anabolic and androgenic activity of improved therapeutic ratio of the former versus the latter. They also exhibit improved solubility properties in oil vehicles, e. g., sesame oil, cotton-seed oil and like substances for intramuscular injection, thus permitting more effective doses of steroid to be administered in a practical volume of oil and thereby prolonging the duration of biological effect. They also possess anti-fertility, anti-androgenic and anti-estrogenic activities. They also have the ability to reduce the level of cholesterol in the blood and consequently are of therapeutic value in the treatment or prevention of atherosclerosis. The foregoing properties make the new compounds useful in medical and veterinary practice. The compounds of the invention can be prepared and administered to mammals, birds, humans, and animals, in a wide variety of oral or parenteral dosage forms * * *. The Evidence Campbell has taken testimony and introduced documentary evidence, both relating primarily to activities during the period July 1962 to February 1963, to establish actual reduction to practice of four steroid compounds identified as compound A (count 4 and a species of Count 1), compound B (count 2 and a species of count 1), compound C (a species of count 1) and compound D (count 3 and a species of count 1). The doeumentary exhibits relating to each of those compounds are correlated with them by identical capital letter designations. Wettstein was not represented at the taking of depositions of Campbell’s witnesses so there was no cross-examination, nor did he adduce any rebuttal evidence. No question has been raised by either the board or Wettstein with respect to Campbell’s corroborated proofs that, prior to January 25, 1963, Wettstein’s earliest date, Campbell conceived, actually prepared, and identified the four compounds above-mentioned. The controversy revolves around the legal adequacy of certain biological tests to which the above compounds were subjected to determine their usefulness as an anti-fertility agent. To that evidentiary matter we now turn. The record establishes that Campbell, working under the direction of his eo-inventor, Babcock, synthesized compounds A, B, and C in the summer of 1962 and compound D in mid-January of 1963. Shortly after synthesis and isolation of the compounds, he submitted them to Upjohn’s Biological Screening Office and requested that they be tested, inter alia, for anti-fertility activity. Standardized biological evaluation request forms were used for that purpose. The anti-fertility screen and assay was carried out by Lyster, a research associate of nearly 25 years experience in the Biological Screening Office, and his assistant, Cornette. Lyster testified that the test procedure applied by him was one designed to show the property of anti-fertility, and had been described in a 1961 journal publication which he had co-authored and which is in evidence as Exhibit P, Supplement No. 1. The results of the tests were recorded on certain pages of Lyster’s notebook, copies of which are in evidence as Exhibits Al-6, Bl-6, Cl-6, and Dl-6. Subsequently, the test results were formally reported by Lyster to various Upjohn research personnel on standardized forms, copies of which comprise record Exhibits Al-5a, Bl-5a, Cl-5a and 5b, and Dl-5a. Those exhibits bear dates of September 4, 1962; August 20, 1962; August 20, 1962; and February 19, 1963, respectively. The notebook pages and Lyster’s reports show on their face that each of compounds A, B, C, and D inhibited pregnancy of the subject animals at several dosage levels. Referring to the reports and results summarized therein, Lyster testified that each of compounds A, B, C, and D possessed “significant anti-fertility activity.” Other recipients of the reports circulated by Lyster — in particular, Campbell and Dr. Shepherd (head of the Biological Screening Office at the time the tests were conducted)' — testified in substance that the reports were relied on by Upjohn research personnel for the truth and accuracy of the results reported therein, and that they also were of the opinion, based on the reports, that compounds A, B, C, and D were “very active,” or had “interesting” to “highly interesting” or a “high order of” activity, as anti-fertility agents. The Decision of the Board The board agreed with the evaluation by Wettstein of the screening test data in the Campbell record, that it “represents no more than an initial test to determine (along with other tests and toxicity data) whether or not additional work should be done, leading to a reduction to practice.” In according “little weight” to those tests, it further noted that the tests include “no toxicity data at all, nor the presence of controls,” and that “meager amounts” of the four compounds were employed. With respect to the testing of compound A, the board observed that Lyster testified that he administered the compound to the test animals by subcutaneous injection, whereas the method in the publication Lyster referred to as disclosing the procedure he followed “was confined to oral administration”; consequently, said the board, “we cannot give much weight to Lyster’s testimony that the compound in question had anti-fertility properties.” Finally, having earlier noted that no witness for Campbell nor any documentary evidence offered by him had shown what significance “a biological screen is to a person skilled in the art relating to compounds contemplated for use as pharmaceuticals or therapeutics,” the board took judicial notice of portions of three publications relating generally to screening tests conducted by pharmacology laboratories in further support of its conclusion that “the screening tests for anti-fertility performed by Lyster or persons under his supervision are insufficient to establish an actual reduction to practice of the invention of the counts «• -x- * >> In response to Campbell’s request for reconsideration, the board concluded that the three publications above referred to “are in the nature of opinion evidence introduced for the first time by us in our decision,” that the part of its decision relying on them “was in error,” and that its decision should be modified to the extent that it “be read with the exclusion of any reference to” those publications. It otherwise adhered to its award of priority to Wettstein. OPINION We see no serious contention on the part of the board or by Wettstein that clinical testing in humans, approval by the Food and Drug Administration, or commercial usefulness is necessary for a reduction to practice of the present invention. Cf. In re Hartop, 311 F.2d 249, 50 CCPA 780 (1962); In re Anthony, 414 F.2d 1383, 56 CCPA 1443 (1969). Having been granted a patent on the basis of his disclosure of usefulness in “test animals,” Wettstein is not in a favorable position to argue that Campbell must show tests on human beings in order to prove an actual reduction to practice. Blicke v. Treves, 241 F.2d 718, 44 CCPA 753 (1957). Moreover, the interference counts contain no limitation relating to intended use or to discovered properties of the claimed compounds. Accordingly, under well-established precedent, evidence establishing substantial utility for any purpose is sufficient to show reduction to practice. Archer v. Papa, 265 F.2d 954, 46 CCPA 835 (1957); Blicke v. Treves, supra. Although Campbell’s assignee’s ultimate purpose undoubtedly is the treatment of humans, successful testing and use in standard laboratory animals is adequate for a reduction to practice of the compounds under the guidelines of Archer v. Papa and Blicke v. Treves, supra. See also In re Krimmel, 292 F.2d 948, 48 CCPA 1116 (1961); In re Bergel, 292 F.2d 955, 48 CCPA 1102 (1961), and In re Hitchings, 342 F.2d 80, 52 CCPA 1141 (1965). The board’s main criticism of Campbell’s biological test data — and Wettstein’s principal criticism too — is that those animal tests are of such a preliminary, tentative nature that “other tests,” along with further “toxicity data,” are necessary before anti-fertility activity can be reasonably ascertained and an actual reduction to practice occurs. The board did not explain what “other tests” it would require in the present circumstances, and the record does not make it clear what further tests, if any, should be required. We find no substantial evidence of record to support the board’s conclusion that further tests are necessary. Indeed, the preponderance of the evidence appears to be to the contrary. There is considerable uncontradicted and credible testimony of Campbell and his witnesses that, based on Lyster’s tests, they were satisfied compounds A, B, C, and D had useful anti-fertility properties. It cannot be gainsaid that each of those compounds was effective in preventing fetus implants in the uteri of rats at appropriate dosage levels. That they were relatively safe in their effectiveness for that purpose, at least to the point of not producing death by reason of acute toxicity in the test animals, is also apparent. Campbell has demonstrated by a preponderance of the evidence that the compounds, when administered to a standard experimental animal, possess the significant property of preventing pregnancy — the intended purpose — and were tolerated by the animals during the test periods. We think that is enough. As stated in In re Krimmel, supra, * * * we hold that when an applicant for a patent has alleged in his patent application that a new and unobvious chemical compound exhibits some useful pharmaceutical property and when this property has been established by statistically significant tests with “standard experimental animals,” sufficient statutory utility for the compounds has been presented. •X- * -X- We hold as we do because it is our firm conviction that one who has taught the public that a compound exhibits some desirable pharmaceutical property in a standard experimental animal has made a significant and useful contribution to the art, even though it may eventually appear that the compound is without value in the treatment of humans. See also Carter-Wallaee, Inc. v. Riverton Laboratories, Inc., 433 F.2d 1034 (2d Cir. 1970). We see nothing of record to establish that Lyster’s tests are per se insufficient or that a battery of additional tests, including further toxicity tests, are needed before one can properly conclude that the compounds possess useful anti-fertility activity in test animals. Apparently recognizing the deficiency of his case, and in a further attempt to “provide evidence” that several other types of anti-fertility and toxicity tests are necessary in order to adequately determine the propriety of an initial conclusion as to a compound’s activity and the desirability of extended study of it, Wettstein urges us “to'consider, even if by judicial notice,” the content of several additional publications not of record which are appended to his brief. The purpose of the publications, says Wettstein, is to make this court aware “of what is meant by assays and screens in anti-fertility research * * The propositions sought to be established by reference to the controverted publications are, we think, matters to be established by appropriate record evidence and are not matters to be resolved by reliance on judicial notice. Wettstein had the opportunity, if he wished to do so, to challenge the credibility and conclusions of the Campbell witnesses by way of cross-examination, rebuttal testimony of his own, or timely introduction of documents. He did not avail himself of those opportunities. It is now too late to accomplish by indirection what he could have done directly. We decline to take judicial notice of those publications. Martin v. Snyder, 214 F.2d 177, 41 CCPA 1010 (1954); In re Cofer, 354 F.2d 664, 53 CCPA 830 (1966). The board and Wettstein have assigned additional reasons for according Lyster’s tests “little weight”: (1) “meager amounts” of the four compounds were employed, and (2) the tests included no “controls,” i. e., animals to which no active compound was administered. The board’s comments regarding the small amount of each compound used by Lyster vis-a-vis the total amount of each compound submitted by Campbell for use in testing no doubt are derived from the calculations it independently made as to the amount utilized. As Campbell points out in his brief, those calculations are in error on the low side by a factor of 21, the board having calculated merely one aminal’s dosage for one day and having overlooked the. fact that the tests were carried out in triplicate over a period of seven days. The board did not explain why the use of less than the total amount of compound submitted for testing should unfavorably affect its view as to the weight to which the tests are entitled. We regard the surplus of each compound remaining after conclusion of the tests as irrelevant. Nor do we attribute any overriding significance to the fact that the tests as carried out by Lyster may not have included control animals to which no test compound was administered. It is apparent from the documentary exhibits relating to each compound that larger doses of compound successfully inhibited pregnancy in some groups of animals, while sufficiently small doses were partially or totally unsuccessful in preventing pregnancy in other groups of animals. We agree with Campbell that in this kind of testing the appearance of pregnancy in the latter groups of animals corresponds, in effect, to the result achieved by the presence of a control. Finally, as one further reason for not according “much weight” to Campbell’s evidence that compound A possessed anti-fertility properties, the board noted that the compound was administered to the test animals subcutaneously rather than orally as set forth in the published procedure allegedly followed. We are at a loss to understand why the board thought that the route of administration would make any crucial difference in showing the anti-fertility property. Indeed, the record shows that compound C was administered to test aminals both subcutaneously and orally, with the result that pregnancy was inhibited in both instances at effective dosage levels. Then, too, the affidavit filed during the prosecution of the Wettstein application (footnote 2, supra), evidences similar results with respect to compound D. In the absence of any record evidence that the route of administration is significant or critical for purposes of determining activity — and neither the board nor Wettstein has directed our attention to such evidence — we give no effect to that supposed variance from published experimental procedure in ascertaining the weight otherwise to be accorded the evidence. In conclusion, and according the evidence on behalf of Campbell the weight to which we think it is entitled, we hold that Campbell has established by the requisite preponderance of the evidence an actual reduction to practice of compounds A, B, C, and D. As a consequence of its conclusion that none of the biological tests performed by Lyster was adequate to establish an actual reduction to practice, the board also considered whether Campbell had shown — in addition to his acknowledged prior conception — reasonable diligence from a time prior to January 25, 1963, the date of Wettstein’s conception, to his own constructive reduction to practice on April 7, 1965. Inasmuch as we have found that Campbell completed actual reduction to practice of compounds A, B, and C (counts 1, 2, and 4) prior to January 25, 1963, there is no need to discuss diligence with respect to them. As to compound D, since we have found that Campbell conceived compound D on January 14, 1963, and had actually reduced it to practice by January 31, 1963, when he knew the results of the anti-fertility tests on compound D — long before his April 7, 1965, constructive reduction to practice but shortly after Wettstein’s January 25, 1963, date of conception — it becomes necessary to decide only whether Campbell was reasonably diligent from a time prior to January 25, 1963, to his January 31, 1963, date of actual reduction to practice, a period considerably shorter than that considered by the board. We have no difficulty in determining that there was reasonable diligence with respect to compound D during that period. The record shows that Campbell synthesized compound D on January 14, 1963; that he submitted it for anti-fertility testing and structure analysis on January 16 and 17, 1963; that he received various analytical reports confirming his proposed structure on January 18-21, 1963; that Lyster and Cornette submitted compound D to the anti-fertility assay earlier described on January 21, 1963; that said assay requires approximately nine days to complete; that on completion of said assay the experimental animals underwent autopsy on January 29, 1963, at which time the compound was found to prevent implants at several dosage levels; that Campbell favorably compared the anti-fertility assay activity of compound D with other related steroids, including the commercial steroid “Norlutin,” in a confidential monthly summary report dated January 31, 1963, to his superior, Dr. Hogg; and that Hogg testified that he was informed of the results obtained by Campbell at least as early as February 21, 1963, as shown by his signature appearing on Campbell’s report as of that date. We think those activities constitute reasonable diligence during the critical period beginning prior to January 25, 1963, and nothing Wettstein has argued persuades us to the contrary. Taxation of Costs One matter remains, relating to taxation of costs. We have found that 20% of certain papers which appellee Wettstein asked to be included in the transcript of record are unnecessary for a fair understanding and consideration of the issue presented by Campbell’s reasons of appeal. Accordingly, the cost of printing such material is assessed against Wettstein, with the cost of printing the remaining 80% to be assessed against Campbell. The decision is reversed. Reversed. . Campbell’s application is assigned to the Upjohn Co. and the Wettstein patent is assigned to Ciba Corp., now Ciba-Geigy Corp. . That journal article describes the procedure as follows: The compounds were administered orally to mature Sprague-Dawley female rats in single daily doses from the day prior to insemination for a total of seven days. On the ninth day of the test the rats were sacrificed and their uteri examined for implantation sites. The “MEDMo” was considered the lowest dose at which no implantation sites were observed. In discussing procedure followed by him with respect to Compound D, Cornette confirmed the above modus operandi: Q-15 Will you now look at Exhibit Dl-6 and tell me what that is, if you know. A It is the same type of record as we were talking about before, where compounds were set up, injected between these dated 1/21 and 1/27, animals were autopsied on 1/29 and pregnancies were determined at that time. Interestingly, an affidavit of record filed during the prosecution of the Wettstein application establishes that Ciba personnel followed similar experimental procedure in determining anti-fertility activity of certain steroids, one of which corresponds to Compound D. We quote from the affidavit: 6. Determination of inhibitory activity on blastocyst implantation by the following procedure: Adult female rats were fertilised (fertilisation being confirmed by the presence of spermatozoa in the vaginal smear) and treated for 7 days as from the following day. Autopsy was performed one day after the completion of treatment, and both uterine horns were then examined for nidated blastocysts. The results are presented in Table VI. Inhibition of blastocyst implantation in 75% of the animals treated is produced by 3 mg./kg./day s. c. [subcutaneously] of A2 *4 - 3,17p - diacetoxy - 17a - ethinyl - 19 - nor - androstene, and by approximately [sic] 10 mg./kg./day p. o. [orally]. The same response is obtained with 0.3 mg./kg./day of 7a - methly - A4 - 3,17(5 - diacetoxy - 17a - ethinyl - 19 - nor - androstene subcutaneously or orally. These results show that 7a - methyl - A4 - 3,17(3 - diacetoxy - 17a - ethinyl - 19 - nor - androstene is 10 times more potent than A4 - 3,17(3 - diacetoxy - 17a - ethinyl - 19 - nor - androstene subcutaneously and about 30 times more potent orally. . The three, rather general publications of which the board originally took judicial notice to support its position contain no reference to the signifiance or appropriate scope of screening procedure in the anti-fertility field. The board correctly held, we think, that those materials were not properly part of the record or subject to judicial notice, and properly excluded any reference to them in accordance with its decision on reconsideration. . As Campbell has pointed out in his brief, administration of the compounds to the test animals produced no demonstrable symptoms of toxicity over the one-week period and they were tolerated by the animals at dosages of four to 20 times the minimum effective dose for .inhibiting pregnancy. . Actually, Lyster was asked on direct examination, and replied affirmatively, whether he now reaffirmed statements he had made in an affidavit earlier filed under Rule 204(c), in evidence as Exhibit G-Supplement 1. There he averred that, prior to November 23, 1962, pregnancy was prevented in rats to which certain amounts of compounds A, B, and 0 in sterile water containing 0.25% methyl cellulose had been administered, whereas “he observed pregnancy in all of the rats treated with only sterile water containing 0.25% methylcellulose.” [Emphasis in original.] There is no documentary evidence in Exhibits A, B, or O which supports that testimony relating to the use of only the sterile water-methyl cellulose material. . The board did not find fault with activities on behalf of Campbell during the period January 14, 1963, to February 19, 1963, but found “no evidence relative to continuous activity directed specifically to the compounds of the counts, from a time after February 19, 1963 up to April 7, 1965, the filing date of the involved Campbell application.” [Original emphasis.]

f2d_476/html/0650-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Application of Russell M. LUCK and Gordon C. Gainer. Patent Appeal No. 8842. United States Court of Customs and Patent Appeals. April 26, 1973. W. D. Palmer, Pittsburgh, Pa., attorney of record, for appellants; Blair R. Studebaker, Pittsburgh, Pa., of counsel. S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents; Fred E. McKelvey, Washington, D. C., of counsel. Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and ALMOND, Senior Judge. MARKEY, Chief Judge. This appeal is from the decision of the Board of Appeals, adhered to on reconsideration, affirming the rejection of all the claims of appellants’ application, serial No. 772,439, filed October 25, 1968, for “Lamp Coating,” as unpatentable under 35 U.S.C. § 103 over Pipkin in view of Crissey et al. and Boyd. We affirm. The Invention The invention relates to an external coating for an incandescent lamp envelope (e.g. a Christmas tree lamp) which is adapted to both indoor and outdoor use and may be applied by a dip-coating process. The claims are drawn to the resultant coated glass envelope, claim 1 being representative: 1. A hollow light-transmitting lamp-bulb-shaped glass member adapted to surround a source of radiations, a coating carried on the external surface of, said glass member, said coating comprising a mixture of: (a) a polymer consisting essentially of polymethylmethacrylate having a tack point temperature of at least 170 °C. and an inherent viscosity of at least 0.44; (b) from 0.1% to 10% by weight of said polymethylmethacrylate of an organofunctional silane having organic functional groups and silicon functional groups, organic functional groups of said silane reacted with said polymethylmethacrylate and silicon functional groups of said silane reacted with the surface of said glass member to couple said polymethylmethacrylate to said glass member; (c) from 2% to 20% by weight of said polymethylmethacrylate of an additive organic substance which is at least substantially transparent, has a boiling temperature at atmospheric pressure of at least 250 °C., and is completely soluble in said polymethylmethacrylate polymer within the temperature range of from -40°C to 170° C.; and (d) said coating having been affixed to said glass member by applying thereon a liquid organic solvent having dissolved therein said polymer, said organofunctional silane and said additive organic substance, and said coated glass member thereafter being baked. Dependent claims 2-9 define limitations such as specific silanes in (b), organic substances in (c), or coloring substances. Independent claim 10 is drawn to the preferred embodiment, 0.3-3% of component (b) and 5-15% of component (c). The Prior Art The primary reference Pipkin discloses glass lamp bulbs externally coated with a lacquer composition which may be based on methacrylate esters. The coating is applied in a mixture of organic solvents, the solvents then being removed. Crissey et al. disclose methylmethacrylate polymer coatings, pigmented or clear, for ceramic articles, wherein 10-50% by weight (based on the weight of the polymer) of a plasticizer is included. The correlation is set forth between plasticizer and physical properties of the coating, such as cracking, crazing, flexibility and durability. A solvent is employed in application and removed by air-drying or baking. Boyd, though directed to size compositions for glass fibers rather than coatings for light bulbs, teaches the use of a coupling agent to promote adhesion to the glass fibers of the polymeric coating, which may consist primarily of polymethylthacrylate. Organic silanes are described as suitable agents, with the nature of organic radical not being critical “except the greater the degree of compatibility with the resinous material, the greater the coupling power between the resinous material and the grass surface.” In these particular compositions the silane coupler is present in amounts of 0.-8-3.5% by weight, the polymer 1-7% and the aqueous carrier 75-98%. The Rejection The examiner considered it obvious to' modify the basic coating of Pipkin by including the silane coupler of Boyd to improve adhesion and the plasticizer of Crissey et al. to improve the physical characteristics of the coating. An affidavit submitted in an attempt to establish criticality for the upper limit of 10% for the silane in the present coating was found to be unpersuasive. Moreover, determination of optimum amounts of silane for a particular coating was considered within the realm of routine experimentation for one of ordinary skill in the art. The process limitation set forth in part (d) of claims 1 and 10 was not regarded as significant with respect to patentability of the claimed article for two reasons. First the organic solvent vehicle was no longer present in the product per se and second, an affidavit purporting to demonstrate the difference between the present coating and a coating using an aqueous vehicle provided no actual comparisons thereof. In sustaining, the board agreed that appellants had failed to show that the use of a somewhat smaller ratio of silane to methacrylate (Boyd using a minimum of 11.4%) was significant. On reconsideration, the observation was added that “[i]t is a routine matter to determine optimum proportions for a given silane.” The correspondence of appellants’ ingredient (c) to conventional plasticizers was noted, a fact made evident by a review of the specification. On the matter of the process limitation, the board stated: * * * Insofar as the coated glass is concerned, it is immaterial whether the coupling agent was carried in water or in an organic solvent, since the carrier is no longer present in the finished article. In any event, we consider it obvious to use an organic solvent, because this is the vehicle in Pipkin and in Crissey et al. OPINION Appellants rest their case for unobviousness on the amount of silane coupler employed in the lamp coatings' and the method of application, as set forth in the process limitation. It is urged that nowhere in the prior art is it suggested to use a silane coupler in the proportions employed by appellants or to apply a coating containing such coupler in an organic solvent. The disclosures of Boyd are said to lead only to the use of much greater amounts of the silane in an aqueous vehicle. We cannot accept appellants’ contentions. The function of the silane in improving adhesion of polymeric material to a glass substrate was known, as was the effect of the plasticizer on the physical properties of the coating. Under § 103 not only are the teachings of the prior art taken into consideration but also the level of ordinary skill in the pertinent art. Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 15 L. Ed.2d 545 (1966). In the present case, we must agree with the Patent Office that the determination of optimum amounts of the silane to achieve its recognized effect would lie within the ambit of ordinary skill in the art. The relevant affidavit of the coinventors evidences no more than routine testing to ascertain the most favorable proportions for this particular application. No critical upper limit is established. No unexpected result is demonstrated. Hence we find no basis for patentability in the amount of silane coupler. As for the method of application, it is well established that product claims may include process steps to wholly or partially define the claimed product. See In re Brown, 459 F.2d 531, 535, 59 C.C.P.A. - (1972) and the case cited therein. To the extent these process limitations distinguish the product over the prior art, they must be given the same consideration as traditional product characteristics. In the present case, we cannot agree with the Patent Office that the absence of the carrier in the final product renders the carrier immaterial. The method of application could well result in a difference in the coated article, regardless of the fate of the solvent. But we do find that the Patent Office has established a prima facie case of obviousness for the product even with full weight being given to the process limitation. The Pipkin and Crissey et al. references specifically teach the use of an organic solvent. Hence such a solvent is an obvious alternative to the aqueous carrier of Boyd, no criticality having been taught by Boyd for the combination of silane and water. Appellants’ affidavit alleging that the use of an aqueous vehicle would result in an “extremely poorly adherent and unsatisfactory” coating fails to provide the rebuttal evidence necessary to overcome this prima facie case. As pointed out by the examiner, no comparative tests are presented for evaluation. Accordingly, on the record before us, the process limitation adds no distinguishable characteristic to the claimed product. The decision of the board is affirmed. Affirmed. . U.S. 2,781,654, issued February 19, 1957. . U.S. 2,934,509, issued April 26, 1960. . U.S. 3,082,183, issued March 19, 1963.

f2d_476/html/0653-01.html

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Application of UNIVERSAL OIL PRODUCTS COMPANY. Application of UNIVERSAL OIL PRODUCTS COMPANY. Patent Appeal Nos. 8906 and 8933. United States Court of Customs and Patent Appeals. April 19, 1973. John T. Lanahan, Des Plaines, Ill., of record, for appellant; Sidney W. Russell, Arlington, Va., of counsel. S. ffm. Cochran, Washington, D. C., for the Commissioner of Patents; John W. Dewhirst, Washington, D. C., of counsel. Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and ALMOND, Senior Judge. RICH, Judge. These consolidated appeals are from decisions of the Patent Office Trademark Trial and Appeal Board affirming the examiner’s refusal to register two word marks for services. We affirm. No. 8906 involves the mark PACOL sought to be registered for “research, development, evaluation, market and economic studies, consultation, design, engineering, and technical services in connection with a process for the dehydrogenation of normal paraffins” in Class 100 and for “construction, installation. operation and servicing for others of a process for the dehydrogenation of normal paraffins” in class 103. No. 8933 involves the mark PENEX sought to be registered for “research, development, evaluation, market and economic studies, consultation, design engineering and technical services for others in connection with an isomerization process.” The applicant, Universal Oil Products Company, is the same in each case and the evidence it supplied to support the applications is in large part identical. The same legal issues are present in the two appeals. The board decision in PENEX was rendered two months after the decision in PACOL and largely relies thereon for support. Refusal of registration for both marks was on the ground that the specimens did not evidence use thereof to identify the services named in the applications. The specimens filed demonstrate that PACOL is used by appellant as the name of a process for converting n-paraffins to corresponding n-olefins by direct catalytic dehydrogenation and that PENEX is used as the name of a process for the continuous catalytic isomerization of normal pentane and hexane and mixtures thereof. In each case one specimen is a 12-page brochure entitled “UOP Processing Guide” which describes briefly the PACOL and PENEX processes as well as eleven other processes of “UOP.” Nowhere in this brochure, however, is there a reference to PACOL or PENEX services. The back page of the brochure is headed “WHAT’S YOUR PROBLEM?” and contains a column of description under the subheading “UOP’s engineering, technical and marketing services are available to help you find the answer.” There is no question but that it shows appellant to be in the business of rendering such services. Particularly relied on are the statement in the subheading, just quoted, and the statements thereunder that UOP is equipped to design and build any plant incorporating any of its processes and to train refinery personnel for its operation and maintenance. * * * Additionally, UOP offers economic, marketing, and management services to the petroleum industry — * * *. The essence of the argument in these appeals is that appellant would have us rule that the use of the marks sought to be registered on processes which, presumably, it licenses others to use, coupled with its rendition of services, constitutes use of PACOL and PENEX as service marks under the law. Section 3 of the Lanham Act (15 U.S.C. § 1053) provides for the registration of “service marks.” Section 45 (15 U.S.C. § 1127) defines “service mark” as “a mark used in the sale or advertising of services to identify the services of one person and distinguish them from the services of others.” The Patent Office position is that, so far as the records in these appeals show, neither PACOL nor PENEX has been so used. We see no error in that conclusion. The requirement that a mark must be “used in the sale or advertising of services” to be registered as a service mark is clear and specific. We think it is not met by evidence which only shows use of the mark as the name of a process and that the company is in the business of rendering services generally, even though the advertising of the services appears in the same brochure in which the name of the process is used. The minimum requirement is some direct association between the offer of services and the mark sought to be registered therefor. See Ex parte Phillips Petroleum Co., 100 USPQ 25 (Com’r. Pats.1953). There is no evidence of such association before us. The advertising of the services is under no mark at all and is in a brochure offering to license or install processes bearing a dozen or more different names. Appellant would have us hold that “the association of services with a name of a process" is sufficient to warrant registration of that name as a service mark. The argument starts from the premise that PACOL and PENEX are process names rather than marks associated with services. The proposition put to us is that the names of processes ought to be registrable as “service marks” under the Lanham Act. The tenuous reasoning in support of this proposition is based on dictum in In re Radio Corporation of America, 205 F.2d 180, 40 CCPA 1025 (1953), where this court, in discussing registration of the slogan “The Music You Want When You Want It,” said: We believe it equally true that Congress intended a service mark to function in such a fashion as to identify and distinguish those things of an intangible nature, such as services, in contradistinction to the protection already provided for the marks affixed to those things of a tangible nature such as goods and products. From this statement appellant argues that service mark registration was set up “not for services alone, but for ‘intangible things’,” that a process is an intangible thing, therefore, a mark or name used for a process should be registrable as a service mark. We reject this argument. Whatever the court in the Radio Corporation opinion may have intended, we are sure it was not that every mark used in connection with an intangible is registrable as a service mark. No such question was under consideration and the next sentence of the opinion is, “Clearly had Congress intended service marks to apply to goods or products, we believe it would have so stated.” (Emphasis ours.) The discussion was whether the slogan was being used on a radio program or to promote the sale of RCA Victor Red Seal Records. The court held it was being used to promote the sale of records — tangible things — and was therefore not registrable as a service mark and affirmed the Patent Office. It is clear enough to us that a “process,” per se, is not a “service.” A process can be carried out for oneself or for others; it can be licensed to others to carry out for themselves, which appears to be what UOP does. Carrying out a process for others could be rendering a service as, for example, operating a laundry. But that is not the kind of thing UOP does. It helps others to carry out processes but in so doing or in advertising its willingness to do so in the specimens of record it has not associated PACOL or PENEX with its services. Direct association is the minimum it must show. The decisions of the board in both appeals are affirmed. Affirmed. . Opinion below reported at 167 USPQ 245. . Application serial No. 274,562, filed June 22, 1967. . Opinion below abstracted at 167 USPQ 576. . Application serial No. 302,157, filed July 5, 1968. . Appellant’s brief states that in another application to register PENEX as a service mark a specimen therein includes the statement “Penex and Platforming engineering, technical, and marketing services are available upon request,” and that the application was approved. The Patent .Office brief confirms that registration No. 940,145 was issued thereon on Aug. 1, 1972. The solicitor says this merely “highlights the deficiency in the cases on appeal.”

f2d_476/html/0657-01.html

Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

UNITED STATES of America, Plaintiff-Appellee, v. William Hanworth KINCAID, Defendant-Appellant. No. 72-1909. United States Court of Appeals, Ninth Circuit. April 10, 1973. As Amended April 30, 1973. The United States District Court for the Central District of California, E. Avery Crary, J., found defendant guilty of refusing to submit to induction and of willfully failing to provide the local board with his current mailing address on two occasions, and he appealed. The Court of Appeals, Eugene A. Wright, Circuit Judge, held that although the circumstances may have left registrant confused, he was not relieved of the responsibility of making appropriate inquiries about his draft status, as the plain language of SSS Form 110 should have indicated to him that he should explore the avenues of relief open to him within the Selective Service System; accordingly, under the facts of the case, the failure of the registrant to exhaust his administrative remedies precluded him from raising the defense that his classification had no basis in fact. Martha Goldin, Atty. (argued), Alan Saltzman, Saltzman & Goldin, Hollywood, Cal., for defendant-appellant. Paul H. Sweeney, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee. Before WRIGHT and WALLACE, Circuit Judges, and EAST, District Judge. Of the District of Oregon. EUGENE A. WRIGHT, Circuit Judge: Appellant was convicted on three counts of an indictment charging him with violating 50 U.S.C. App. § 462(a). In Count I he was charged with refusing to submit to induction on May 25, 1971. In Counts II and III he was charged with willfully failing to provide the local board with his current mailing address on two occasions in 1967, once about June 26 and once about December 12. We affirm the judgment of conviction on Count I and employ the concurrent sentence principle to decline review of Counts II and III. Appellant contends that his conviction on Count I should be reversed because (1) thei'e was no basis in fact for his I-A classification, and (2) the local board failed to consider his late request for a hardship deferment. A. Exhaustion of remedies. The district court found that appellant’s failure to exhaust his administrative remedies within the Selective Service System precluded the court from considering the contention that there was no basis in fact for the I-A classification. Appellant had contended that unusual circumstances gave the district court discretion to excuse the failure to exhaust. The court felt that it had no such discretion in this case. A recitation of the facts is in order. Appellant first registered with a local board in Santa Barbara, California on January 9, 1967. He was classified I-A on June 15, 1967 and found physically acceptable for service on March 5, 1968. On April 9,1968 he was ordered to report for induction on May 6. He reported as ordered but refused to submit to induction. On May 17 appellant wrote to the local board explaining that he had refused to submit to induction because of conscientious objection to war. In November of that year he requested, received, completed and returned SSS Form 150, the special form for registrants claiming conscientious objector (1-0 or I-A-O) status. On February 19, 1969 the United States Attorney’s office declined to prosecute the May 6 refusal and suggested to the local board that it should consider the merits of appellant’s 1-0 claim. The local board did so on April 7, 1969 and decided not to reopen appellant’s classification. Appellant was sent SSS Form C-140L advising him of this action, the form containing no advice of appeal rights as none existed from the refusal of a local board to reopen a classification. On May 13, 1969 appellant was again ordered to report for induction. At appellant’s request the place of reporting was moved to Oakland and he reported there as.ordered on July 9, 1969 but refused induction. For this refusal he was tried and acquitted in October 1970. On February 8, 1971 the State Director ordered appellant’s local board to reopen his classification and consider the merits of his 1-0 claim. This was done and the board rejected his claim on March ■ 2. On March 8 appellant was sent SSS Form 110 notifying him of his I-A classification and advising him of his right to appeal. Appellant requested neither a personal appearance nor an appeal. On April 22 he was ordered to report for induction on May 25. It was appellant’s refusal to submit to induction on May 25 that caused this prosecution. Appellant contends that on these facts the district court should have exercised its discretion and excused the failure to appeal from the I-A classification of March 8, 1971 because appellant was unaware that his 1-0 claim had been rejected. In support of this contention he cites numerous cases in which the courts have relaxed the exhaustion requirement. None is in point, however, in the present case. In Glover v. United States, 286 F.2d 84 (8th Cir. 1961) the court reversed a judgment of conviction, finding that no basis in fact existed for defendant’s I-A classification and that his failure to exhaust administrative remedies should be excused because of “extremely exceptional and unusual circumstances.” Id. at 91. In Glover, the facts were that the registrant had appealed once from the denial of his claim for conscientious objector status. Although he had submitted no additional information in support of his claim his classification (and those of all others who had claimed but not been granted 1-0 status) had been reopened at the direction of National Headquarters for re-examination in light of two recent Supreme Court decisions. Defendant did not appeal from the I-A classification issued as a result of reopening but the court of appeals concluded that it would be inequitable to apply the exhaustion doctrine to bar review of his classification under these facts. In view of his earlier, unsuccessful appeal, the court felt that defendant was justified in believing that another appeal would be “repetitious, fruitless and vain.” Id. at 90. See also United States v. Hayden, 445 F.2d 1365 (9th Cir. 1971); United States v. Goss, 6 SSLR 3044 (N.D.Cal.1972); but see United States v. Holby, 345 F.Supp. 639 (S.D.N.Y.1972). Even if we followed Glover, it would not govern the present case because appellant here had never appealed from the issuance of a I-A classification. It would have been totally unreasonable for him to dismiss as an idle gesture the opportunity to appeal his classification. United States v. Deans, 436 F.2d 596 (3d Cir. 1971). The other cases cited by appellant are further from the mark. In Donato v. United States, 302 F.2d 468 (9th Cir. 1962), we remanded for further consideration by the district court because of a showing by the defendant that he may have been physically prevented from taking an appeal within the allotted time. See also United States v. Peeler, 5 SSLR 3633 (E.D.N.C.1972). In Wills v. United States, 384 F.2d 943 (9th Cir. 1967), we excused the defendant’s failure to exhaust administrative remedies for two reasons: first, because his objection to his classification raised a constitutional question “on which the courts have little reason to defer to administrative determination . ” Id. at 945, and second, because the notice of classification from which defendant had not taken an appeal did not tell the full story, to wit, that defendant had been declared a delinquent. The notice of delinquency was not sent until after the time for appeal had expired. Neither factor is present in the instant case. In United States v. Davis, 413 F.2d 148 (4th Cir. 1969), the court reversed a judgment of conviction because the failure of the local board to advise defendant of the availability of a government appeal agent, as required by Local Board Memorandum 82, deprived defendant of a substantiál procedural right. The court held that failure to exhaust appellate remedies is no bar to the presentation to the court of facts showing that the local board failed properly to advise the registrant of his right to appeal. This holding makes eminently good sense but it has no application where, as here, the local board did follow prescribed procedures in notifying appellant of his right to appeal. Finally, United States v. Thompson, 5 SSLR 3595 (D.Or.1972), heavily relied upon by appellant, is also factually inapposite. There the court found that the combination of three unique factors was “sufficient to mislead the defendant and to cause his failure to appeal.” These were (a) the unusual classification language written on his Form 110, (b) the fact that unlike on previous occasions no Form 217 (advice of appeal rights) was sent (although the Form 110, as in the present case, did contain such an advice of rights), and (c) the fact that within the time allowed for taking an appeal defendant was sent a notice cancelling an outstanding induction order. Under these circumstances, the court felt that defendant was justified in believing that no action had been taken on his 1-0 claim. As the present case is factually distinguishable we need not decide whether this court should follow Thompson. Although the circumstances here may have left appellant confused, we cannot accept the premise of appellant’s argument that he was relieved of the responsibility of making appropriate inquiries about his status. The plain language of SSS Form 110 should have indicated to him that he should explore the avenues of relief open to him within the Selective Service System. We said in United States v. Lansing, 424 F.2d 225, 227 (9th Cir. 1970): “[I]n view of the ease with which appellant could have inquired of the board and learned the true status of his claim, we do not think it unreasonable to hold that he had no privilege to remain in ignorance. ...” We conclude that the district court was correct in deciding that under the facts of this case it had no discretion to excuse the exhaustion requirement. This case falls well within the settled rule in this circuit that failure to exhaust administrative remedies precludes a registrant from raising as a defense in a criminal prosecution the claim that his classification had no basis in fact. United States v. Maciel, 469 F.2d 718 (9th Cir. 1972); Lockhart v. United States, 420 F.2d 1143 (9th Cir. 1969); United States v. Deans, supra. See also McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971); United States v. Zmuda, 423 F.2d 757 (3d Cir. 1970). B. The claim for a hardship deferment. On April 28 and May 21, 1971, subsequent to his receipt of the order to report for induction, appellant told the local board that he was married and that his wife was expecting a child in July and he asked to be considered for a hardship deferment. The clerk conveyed this to the board members who decided that the new informations submitted by appellant did not justify a delay of induction. Appellant contends that the record shows the information was communicated to the members of the board only in the context of a request for postponement of his induction and that his request for reopening his classification was not considered as such. Assuming that the record supports this contention it is of no help to appellant. The failure of the board to consider this request for a different classification was prejudicial only if the information made out a prima facie case for a different classification because of a change in circumstances (1) subsequent to the mailing of the induction order (2) beyond the control of the registrant. United States v. Stacey, 441 F.2d 508 (9th Cir. 1971). The information submitted did not make out such a case. Appellant’s marriage, even if subsequent to April 22, was not an event beyond his control. United States v. Dell’Anno, 436 F.2d 1198 (9th Cir. 1971). If appellant’s wife was expecting a child in July it is apparent that they had anticipated it long before April 22. There was no post-induction order change of status. United States v. Hulphers, 421 F.2d 1291 (9th Cir. 1969). The conviction on Count I is affirmed. . References to “failure to exhaust administrative remedies” in the following discussion describe only the situation where a claim for a classification other than I-A has been presented to the local board but no appeal has been taken from the decision of the board to deny the claim. In judicial opinions the phrase “exhaustion of remedies” is sometimes used to describe the situation where the registrant has made no attempt to seek a classification other than I-A. E. g., United States v. Pringle, 438 F.2d 1216 (1st Cir. 1971); United States v. McDuffie, 443 F.2d 1163 (5th Cir. 1971); United States v. Smogor, 415 F.2d 296 (7th Cir. 1969); Alexander v. United States, 435 F.2d 117 (9th Cir. 1970). It is better to distinguish such cases from our present situation. See McKart v. United States, 395 U.S. 185, 204r-207, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) (opinion of Mr. Justice White, concurring in the result). Only misleading conduct on the part of the Selective Service System or its agents will excuse the failure by the registrant to present his claim for an exemption or deferment to the local board in the first instance. United States v. Sanders, 470 F.2d 937 (9th Cir. 1972); United States v. Timmins, 464 F.2d 385 (9th Cir. 1972). Accord: United States v. Cordova, 454 F.2d 763 (10th Cir. 1972); United States v. Wilson, 345 F.Supp. 894 (S.D.N.Y. 1972). But see United States v. Fargnoli, 458 F.2d 1237 (1st Cir. 1972). And such misleading conduct operates not to relax the exhaustion doctrine but as a complete defense to the charge. . To a certain extent Wills and Wolff v. S.S. Local Board No. 16, 372 F.2d 817 (2d Cir. 1967), anticipated McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) which held that exhaustion of administrative remedies is not required where the lawfulness of the registrant’s classification turns solely on an issue of statutory (or constitutional) interpretation. See also United States v. Bender, 469 F.2d 235 (8th Cir. 1972); United States v. Eades, 430 F.2d 1300 (4th Cir. 1970); Ramos v. United States, 319 F.Supp. 1207 (D.R.I.1970). Cf. United States v. Davila, 429 F.2d 481 (5th Cir. 1970).

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Caselaw Access Project

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Lieutenant (JG) Daniel S. ISBIT, Petitioner-Appellant, v. SECRETARY OF DEFENSE et al., Respondents-Appellees. No. 72-2187. United States Court of Appeals, Fifth Circuit. April 18, 1973. Gerald H. Goldstein, San Antonio, Tex., for petitioner-appellant. Anthony J. P. Farris, U. S. Atty., James R. Gough, Olney G. Wallis, Asst. U. S. Attys., Houston, Tex., for respondents-appellees. Before COLEMAN and SIMPSON, Circuit Judges and ESTES, District Judge. PER CURIAM: Lt. (JG) Daniel S. Isbit, a commissioned officer in the regular United States Navy, submitted an application for discharge as a conscientious objector. The application was formally denied by the Chief of Naval Personnel, Lt. Isbit then filed his petition for the writ of habeas corpus in the United States District Court for the Southern District of Texas, seeking release as a conscientious objector. The District Court not only reviewed the administrative record and briefs of counsel but proceeded to hear testimony oliunde the administrative record upon which Lt. Isbit’s application for discharge had been denied. The primary issue in this kind of habeas corpus proceeding is whether the denial of the discharge had a “basis in fact”. Over objection, the District Court heard testimony from Admiral Billy D. Holder, Chief of the Naval Air Advance Training at Corpus Christi, as to factors bearing upon Isbit’s conscientious objector status. One week after this Court heard oral argument in this appeal, the Supreme Court of the United States decided Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106. The judgment of the District Court in this case should be reconsidered in the light of that decision. In particular, the District Court should decide from the same record which the naval authorities had before them the issue of whether there was a basis in fact for the denial of conscientious objector status to Isbit, In Re Tavlos, 5 Cir., 1970, 429 F.2d 859, 863; Helwick v. Laird, 5 Cir., 1971, 438 F.2d 959, 965. The judgment of the District Court is vacated and remanded for further proceedings not inconsistent herewith. Vacated and remanded.

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Caselaw Access Project

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Eloise ADELT, Appellant, v. RICHMOND SCHOOL DISTRICT, etc., et al., Appellees. No. 26796. United States Court of Appeals, Ninth Circuit. April 9, 1973. Eloise Adelt, in pro. per. John B. Clausen, Contra Costa County Counsel (no appearance), Martinez, Cal., for appellees. OPINION Before HAMLEY, DUNIWAY and ELY, Circuit Judges. PER CURIAM: The Order of dismissal by the District Court is affirmed. It is apparent that this appeal arises from a suit wherein the appellant sought to relitigate issues which had theretofore been resolved adversely to her, both in the California and Federal Courts. See Adelt v. Richmond School District, 250 Cal.App.2d 149, 58 Cal.Rptr. 151 (1967); Adelt v. Richmond School District, 439 F.2d 718 (9th Cir. 1971).

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Caselaw Access Project

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NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GOSHEN LITHO, INC., Respondent. No. 591, Docket 72-2013. United States Court of Appeals, Second Circuit. Argued March 26, 1973. Decided April 18, 1973. Joseph A. McCabe, Rockville Centre, N. Y. (McCabe & Huschle, Rockville Centre, N. Y., of counsel), for respondent. William L. Corbett, Atty., N. L. R. B. (Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Paul J. Spielberg, Atty., N. L. R. B., of counsel), for petitioner. Before FRIENDLY, Chief Judge, LUMBARD, Circuit Judge, and THOMSEN, District Judge. Of the District Court for the District of Maryland, sitting by designation. PER CURIAM: The National Labor Relations Board seeks enforcement of its order issued against Goshen Litho, Inc. (Company) on May 9, 1972. In its decision and order, 196 NLRB No. 139, the Board found that the Company (A) had violated § 8(a)(1) and (2) of the NLRA by its coercive activities directed toward two local unions and its support and assistance to a third, and (B) had violated § 8(a) (3) and (1) by discharging or laying off four employees in 1968 and five employees in 1970 and constructively discharging R. Bradshaw, another employee, because of their union activities. It ordered that a third election be held, that the Company cease and desist specified activities, and that the Company “make whole” the ten employees in the manner directed by the Trial Examiner and reinstate R. Bradshaw to his former position or a substantially equivalent position, without prejudice to his seniority or other rights and privileges. The Company contends that substantial evidence on the whole record does not support finding (B), above. We are satisfied that the findings of the Board are supported by substantial evidence on the record considered as a whole, with one exception: we find incredible the testimony that R. Bradshaw was directed to clean up oil under a press while it was in operation, and conclude that there is no substantial evidence on the record considered as a whole to support the finding that his walking off the job was caused by harassment or that he was constructively discharged. Except for the relief directed to be given R. Bradshaw, the order of the Board will be enforced.

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Caselaw Access Project

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UNITED STATES of America, Appellee, v. John Wyatt MULLINS, Jr., Appellant. No. 72-2348. United States Court of Appeals, Fourth Circuit. Argued March 8, 1973. Decided April 10, 1973. Robert W. Mann, Stuart, Va. (court-appointed counsel), for appellant. Ronald D. Hodges, Asst. U. S. Atty. (Leigh B. Hanes, Jr., U. S. Atty., on brief) for appellee. Before BRYAN, Senior Cricuit Judge, and WINTER and BUTZNER, Circuit Judges. PER CURIAM: Having before been convicted of a felony, John Wyatt Mullins, Jr. on February 11, 1972 in Martinsville, Virginia, was found in possession of a .32 caliber Clarke revolver. Thereafter he was convicted in the District Court of a violation of 18 U.S.C. App. 1202(a), punishing any felon “who receives, possesses, or transports in commerce or affecting commerce . any firearm. . . . ” In addition to his possession of the revolver, the undisputed evidence showed that it had been transported from Santa Monica, California to Atlanta, Georgia on March 12, 1971, and from there shipped on September 30, 1971 to a department store in Martinsville. ' The trial court charged the jury ‘-‘that the Government may meet its burden of proving a connection between commerce and the receipt or possession of a firearm by a convicted felon if it is demonstrated that the firearm received or possessed by a convicted felon had previously traveled in interstate commerce”. On Mullins’ appeal this instruction is assigned as reversible error. His point is that the Government had to establish a nexus between the receipt or possession of the revolver and its movement in interstate commerce, and none was proved. We think the instruction was correct and the verdict of guilty thereunder unimpeachable. United States v. Bass, 404 U.S. 336, 350, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971); United States v. Brown, 472 F.2d 1181 (6 Cir., 1973); United States v. Giannoni, 472 F.2d 136 (9 Cir., 1973). Affirmed.

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Caselaw Access Project

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Richard L. ANDERSON, Plaintiff-Appellant, v. David W. REYNOLDS and W. L. (Joe) Gee, Defendants-Appellees. No. 72-1443. United States Court of Appeals, Tenth Circuit. April 10, 1973. Ronald C. Barker, Salt Lake City, Utah, for plaintiff-appellant. Veri R. Topham, and Harold G. Christensen, Worsley, Snow & Christensen, Salt Lake City, Utah, for defendantsappellees. Before MURRAH, SETH and DOYLE, Circuit Judges. MURRAH, Circuit Judge. In this suit against state narcotics agents, Dr. Anderson seeks redress in damages for the deprivation of his civil rights by wrongful arrest. During a routine drugstore investigation the agents noticed that an unusually large number of narcotics were being prescribed by the physician. The agents then visited Dr. Anderson’s office, gave him the Miranda warnings, and asked to see his patient-treatment records. Dr. Anderson produced Treasury Department records showing orders from drug suppliers, but refused to produce other records requested by the agents. At a subsequent, similar meeting the agents informed Dr. Anderson that it was a crime to refuse access to the requested records, but the doctor again declined to comply with their requests. Upon this disclosure to the Salt Lake County Attorney’s Office, the Chief Criminal Deputy prepared a complaint charging Dr. Anderson with failure to permit inspection of records in violation of Section 58-13a-34, U.C.A., 1953, and authorized issuance of a warrant for Dr. Anderson’s arrest. The complaint was sworn to in the presence of a Municipal Judge, and the warrant issued. Dr. Anderson was then arrested at his office. These charges were subsequently dismissed prior to preliminary hearing, and Dr. Anderson’s wife was convicted of forgery of the questioned prescriptions. The physician then filed this suit, alleging that the narcotics agents deprived and conspired to deprive him of his civil rights by arresting him in retaliation for his refusal to permit inspection of his patient-treatment records, thereby injuring his professional reputation in violation of 42 U.S.C. §§ 1983 and 1985 (3). Pursuant to a jury-waived trial, the trial court, D.C., 342 F.Supp. 101, held upon to decide here. Dr. Anderson does that the investigation was conducted in good faith, that the agents made full and fair disclosure to the County Attorney’s Office and the Municipal Judge, and that the arrest was neither the result of any conspiracy nor a violation of civil rights. We affirm the judgment for the defendants. Dr. Anderson contends that the patient-treatment records requested by the agents are privileged records under Section 78-24-8(4), U.C.A., 1953, which provides that a physician cannot be “examined, in a civil action,” as to information required in attending to his patients. But the physician-patient privilege, recognized and protected by that section, is specifically confined to civil actions, and manifestly has no applicability to investigations under Section 58-13a-34, U.C.A., 1953. Dr. Anderson further contends that he is not required to keep or permit inspection of the records demanded by the agents, inasmuch as the record-keeping statute pertains only to drugs administered, dispensed, or professionally used by him “otherwise than by prescription,” and, additionally, that his privileges against unreasonable searches and seizures and self-incrimination under the Fourth and Fifth Amendments protect him against a warrantless search of his records. These contentions present interesting questions, but not the ones we are called upon to decide here. Dr. Anderson does not contend that his records were illegally searched; rather, his claim is that his arrest was a “penalty” imposed upon him because he refused to permit such an inspection — a claim of malicious prosecution. Cf., e. g., Madison v. Mantor, 441 F.2d 537 (1st Cir. 1971). “Under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved.” See Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). And see also Valdez v. Black, 446 F.2d 1071 (10th Cir. 1971). Nor is he liable if the law under which he acts is subsequently invalidated. See Pierson, supra. Our only question, then, is whether Dr. Anderson’s arrest was justified by a showing of probable cause. Based upon painstaking findings of fact, the trial court concluded that the prosecution was reasonably warranted and was, therefore, instituted in good faith; that the warrant of arrest, having been issued by a judicial officer upon the sworn complaint prepared by the County Attorney’s Office, cannot be the basis for civil rights or false arrest liability against the enforcement officers who executed it. The judgment is affirmed. . Sections 58-13a-21 and 58-13a-25, U.C.A., 1953, provide in presently material part that every physician shall keep a record of drugs administered, dispensed, or professionally used by him other than by prescription. . Section 58-13a-34 provides that prescriptions, orders, and records required under the registration sections shall be opened for inspection by federal, state, county, and municipal officers whose duties include enforcement of the narcotics laws. . Section 1983 provides in presently material part that every person who, under color of any statute, causes any person to be deprived of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. Section 1985 provides in presently material part that if two or more persons, conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing or attempting to enforce, the right of any person to the equal protection of the laws, the party so injured or deprived may have an action for the recovery of damages, against the conspirators. . Cf. e. g., United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), with Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970). See also, e. g., Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); and Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967).