author: JAMES M. CARTER, Circuit Judge.

text:
    INDUSTRIAL COMMUNICATIONS SYSTEMS, INC., and Intrastate Radio Telephone, Inc., of Los Angeles, Plaintiffs-Appellants, v. PACIFIC TELEPHONE & TELEGRAPH COMPANY and General Telephone Company of California, Defendants-Appellees.
    No. 73-1032.
    United States Court of Appeals, Ninth Circuit.
    Oct. 4, 1974.

      James G. Rourke, of Rourke & Hol-brook, Santa Ana, Cal., for plaintiffs-appellants.
    Anthonie M. Voogd, of Lawler, Felix & Hall, Charles W. Bender, of O’Melveny & Myers, Los Angeles, Cal., for defendants-appellees.
    Before CARTER and HUFSTEDLER, Circuit Judges, and SCHNACKE,  District Judge.

       Honorable Robert II. Sclmaeke, United States District Judge, Northern District of California, sitting by designation.

   OPINION

JAMES M. CARTER, Circuit Judge.

This is an appeal from the Order of the district court, dismissing the complaint of appellants Industrial Communications Systems, Inc. (“Industrial”) and Intrastate Radio Telephone, Inc. of Los Angeles (“Radio”) on the ground that it failed to present a justiciable case or controversy. Appellees Pacific Telephone and Telegraph Company (“Pacific”) and General Telephone Company of California (“General”) seek to sustain the Order of dismissal on three grounds: 1) non-justiciability; 2) the complaint failed to state a claim upon which relief could be granted; and 3) the California Public Utilities Commission (“PUC”) has primary jurisdiction of the dispute. Although we conclude that the case was justiciable and the complaint stated a claim upon which relief could be granted, the federal court case should have been stayed pending the outcome of the PUC proceedings under the doctrine of primary jurisdiction. We reverse and remand with instructions that the district court stay this case pending the outcome of the PUC proceedings.

FACTS

Industrial and Radio are engaged in the one-way signaling business in the Los Angeles area. One-way signaling is a means for informing a person while he is away from his telephone that someone is attempting to contact him. A subscriber to a signaling service is assigned a number and a small radio receiver that he carries with him. To contact the subscriber, one telephones the signaling utility, waits for a tone, and then dials the subscriber’s number. The utility’s transmitter emits a radio beam keyed to that subscriber’s receiver and the receiver emits a “beep” tone. Thus informed that someone is attempting to contact him, the subscriber telephones a predetermined contact point, such as his office, and obtains the message. The basic technical equipment required to provide one-way radio signaling service is the radio transmitter and the means to connect it with the telephone network.

Industrial and Radio pay to Pacific and General a monthly charge for this dial interconnection under contracts terminable by either party on thirty days’ notice. Industrial and Radio compete with each other for one-way signaling sendee subscribers and are also subject to such competition from other radio common carriers in the Los Angeles area.

On November 1, 1971 the FCC granted construction permits to both Pacific and General to build radio transmitters to be used for providing one-way radio signaling service in the Los Angeles area. These permits authorized the construction by both Pacific and General of facilities to “be operated in coordination” with one another on the same frequency.

On June 1 and June 2, 1972, respectively, General and Pacific each filed an “Advice Letter” with the PUC. These Advice Letters presented revised tariff sheets to the PUC containing information and rates covering the proposed institution of one-way signaling service in Los Angeles. On June 23, 1972, General and Pacific each applied to the FCC for a radio license to operate the transmitters they had built pursuant to the construction permits issued on November 1, 1971.

On June 21, 1972, Industrial requested the FCC to withhold any action on the radio license applications of General and Pacific, and on June 26, 1972, Industrial and Radio filed a complaint with the PUC challenging the tariffs filed with Pacific’s and General’s Advice Letters. The complaint alleged in pertinent part that the rates and conditions of service General and Pacific sought to establish were unfair, anticompetitive, and constituted an unlawful contract, combination and conspiracy in restraint of trade. It was further alleged that Industrial and Radio would suffer prompt and irreparable injury if the proposed tariffs were permitted to become effective. The following day, the PUC suspended the tariffs proposed by General and Pacific and commenced an investigation to determine the reasonableness and lawfulness of the tariffs.

The complaint proceeding and the PUC investigation were consolidated and, on November 10, 1972, a full PUC hearing was commenced, with one of the issues to be determined stated as follows :

“Would it be in the public interest to permit the proposed tariffs filed by Pacific and General to become effective, public interest being deemed to include but not limited to relevant consideration of alleged anti-competitive impact of such action.”

On December 1, 1972, the hearing examiner adjourned the hearings to a future date to be set by the Commission.

Industrial and Radio also filed their complaint in the district court, alleging that Pacific and General were combining, conspiring, and threatening to commit violations of the antitrust laws by proposing to enter the one-way radio signaling business in Los Angeles. The complaint further alleged that their one-way signaling businesses would suffer serious and irreparable injury unless General and Pacific were enjoined from entering the market.

Upon motion by Pacific and General, the district court dismissed the complaint on the ground that, since the PUC had not yet approved the defendants’ tariffs nor had the FCC granted the defendants the requisite radio licenses, “[t]he dispute as presented is, therefore, hypothetical and abstract. It lacks sufficient immediacy and reality to warrant, at this time, possible disharmony between this Court and the agencies charged with the primary regulation of this area of competition.” This appeal ensued.

I.

THE CASE IS JUSTICIABLE

The United States Constitution limits the jurisdiction of the federal courts to the adjudication of “cases or controversies.” U.S.Const., Art. Ill, § 2. This limitation bars federal courts from giving advisory opinions or from considering hypothetical cases. See Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241, 57 S.Ct. 461, 81 L.Ed. 617 (1937). In the usual ease, then, acts which merely threaten injury to one or several parties will not support the finding of a ease or controversy sufficient to give the courts jurisdiction.

However, the authorizing statute in this case, Section 16 of the Clayton Act, 15 U.S.C. § 26, provides aggrieved parties with a suit for “injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws.” (Emphasis added.) The “relief against threatened conduct that will cause loss or damage” is to be granted “by courts of equity, under the rules governing such proceedings.”

The Supreme Court, interpreting Section 16 of the Clayton Act, has specifically held that a party need not prove the fact of injury in order to be entitled to injunctive relief against parties conspiring to violate the antitrust laws. Zenith Corp. v. Hazeltine, 395 U. S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969). Rather, Section 16 “authorizes injunctive relief upon the demonstration of ‘threatened’ injury. That remedy is characteristically available even though the plaintiff has not yet suffered actual injury ... he need only demonstrate a significant threat of injury from an impending violation of the antitrust laws . . . . ” Id. at 130, 89 S.Ct. at 1580 (citations and footnotes omitted).

Industrial and Radio have properly alleged a combination by Pacific and General to enter the one-way radio signalling business in Los Angeles, in violation of the antitrust laws. They have also alleged that such entry into the market would cause them serious and irreparable harm. Because the dismissal came at the pleading stage of the proceedings, they have had no opportunity to prove the acts threatening violation of the antitrust laws. We find, and Zenith Corp. v. Hazeltine, supra, so requires, that the plaintiffs have demonstrated “a significant threat of injury from an impending violation of the antitrust laws.” The dispute is therefore justiciable.

Our finding that the plaintiffs have properly alleged an impending violation of the antitrust laws which, if proved, would entitle them to equitable relief, likewise mandates the conclusion that the complaint states a claim upon which relief can be granted. Whether the violation alleged can be proved is not relevant at this stage of the proceedings.

II.

THE PUC HAS PRIMARY JURISDICTION OF THE DISPUTE

Although the district court dismissed the complaint as non-justiciable, it also noted that determination of the dispute could result in “disharmony between this Court and the agencies charged with the primary regulation of this area of competition.” Pacific and General contend on appeal, as they did below, that if the dismissal was erroneous, the district court proceedings should at least have been stayed pending proceedings by the PUC which has primary jurisdiction of this dispute. We agree.

There are in reality two prongs to the contention that the PUC or FCC, not the federal courts, has jurisdiction over this case. First, Pacific and General contend that the extensive regulation of telephone companies by the FCC under the Federal Communications Act, 47 U.S.C. § 151 et seq., precludes any antitrust actions against them. We reject this contention, both because our conclusion that the PUC has primary jurisdiction warranting a stay in this case renders a broader holding superfluous, and because the relevant case law would appear to indicate that telephone companies are not unconditionally immune from antitrust actions. See, e. g., Otter Tail Power Co. v. United States, 410 U.S. 366, 372, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973); United States v. Philadelphia National Bank, 374 U.S. 321, 350-351, 83 S.Ct. 1715, 1735, 10 L.Ed.2d 915 (1963) (“Repeals of the antitrust laws by implication from a regulatory statute are strongly disfavored, and have only been found in cases of plain repugnancy between the antitrust and regulatory provisions”); International Tel. & Tel. Co. v. General Tel. Co., 351 F.Supp. 1153, 1202-1203 (D.Hawaii 1972). But cf. United States v. Radio Corporation of America, 358 U.S. 334, 349 n. 17, 79 S.Ct. 457, 3 L.Ed.2d 354 (1959).

In Radio Corporation of America, supra, at 349 n. 17, 79 S.Ct. at 466, the Court noted that “Congress has provided that certain actions of telephone and telegraph companies may be exempted from the antitrust laws by the Commission, [47 U.S.C.J § 221(a) and § 222(c)(1).” These exemptions, however, have been specifically and narrowly drawn, and pertain solely to consolidations and mergers. They do not authorize or suggest a blanket exemption from the antitrust laws with respect to the regulation of rates, practices, or services.

The second prong of appellees’ primary jurisdiction argument is that under that doctrine a court should stay proceedings which are properly within the jurisdiction of, and are in fact presently under consideration by, an agency with extensive regulatory powers over the subject matter and parties involved. We agree and conclude that the reasons for applying the doctrine of primary jurisdiction are applicable to this case.

Whether or not the doctrine of primary jurisdiction applies depends on the extent and amount of regulatory powers vested in the governmental agencies involved. In instances where the companies or activities were fully regulated, the doctrine of primary jurisdiction applied. See Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576 (1952); Radio Corporation of America, supra, 358 U.S. at 346-347, 79 S.Ct. 457, 3 L.Ed.2d 354; United States Navigation Co. v. Cunard S. S. Co., 284 U.S. 474, 483-485, 52 S.Ct. 247, 76 L.Ed. 408 (1932). At the other end of the spectrum are those cases concerning the broadcasting industry, where the lack of statutorily mandated control rendered the doctrine inapplicable. See Radio Corporation of America, supra, 358 U.S. at 348-349, 79 S.Ct. at 466 (Radio and television broadcasters “are not included in the definition of common carriers ... as are telephone and telegraph companies. Thus, the extensive controls ... of the Communications Act ... do not apply”) ; Federal Communications Comm’n v. Sanders Bros. Radio Station, 309 U.S. 470, 474, 60 S.Ct. 693, 84 L.Ed. 869 (1940).

Because the jurisdiction of the FCC is limited to “interstate and foreign communication by wire or radio” (47 U.S.C. § 152(a)), regulation of wire or radio communication between points in the same state is reserved to the appropriate state commission (47 U.S.C. § 153(e)). Under this dual regulatory system, the FCC exercises regulatory authority over the initial issuance of radio licenses but defers questions regarding rates, “economic impact” and “need for service” to the state agency, here the PUC.

“Telephone corporations” are comprehensively regulated under the California scheme. No telephone corporation can begin construction of a line, plant, or system in an area unless it has first obtained from the PUC a certificate of public convenience and necessity covering that area. Calif.Pub.Util.Code § 1001. If the PUC finds that any practices, facilities, equipment, or service of a telephone corporation are unreasonable, inadequate, or insufficient, it is empowered to order the company to furnish or construct whatever facilities, equipment or service is needed. Calif.Pub. Util.Code § 761. The PUC’s regulatory authority over rates, practices, and services is likewise both pervasive and continuing. Calif.Pub.Util.Code §§ 455, 489, 728, 729. And, in addition to its extensive specifically enumerated powers, the PUC is vested with omnibus authority to do all things necessary to the exercise of its powers and jurisdiction over public utilities. Calif.Pub.Util.Code § 701.

For over a decade, the PUC has pervasively regulated all “elements which affect the relationship between a radio-telephone utility and the public,” Kidd v. Poor, 64 Cal.PUC 237, 240 (1965), and “a consideration of [antitrust questions] is an essential part of the Commission’s function. . . . [T]he Commission must take into account the antitrust aspects of applications before it.” Northern California Power Agency v. PUC, 5 Cal. 3d 370, 379, 486 P.2d 1218, 1224, 96 Cal.Rptr. 18, 24 (1971).

Where, as here, a regulatory agency possesses such extensive authority and control over a particular subject matter, and where consideration of the same subject matter is sought before that agency and the courts, the possibility of a judicial-administrative conflict should be avoided. Carter v. American Tel. & Tel. Co., 365 F.2d 486, 495 (5 Cir. 1966), cert. denied 385 U.S. 1008, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967) (“the occasion for facing such a possibility ought not to be forced until it is inescapably necessary”).

Another reason for deferring to the PUC is the need to obtain the benefit of that agency’s expertise in ascertaining, interpreting and distilling the facts and circumstances underlying the legal issues. Where an agency is charged with responsibility for regulating a complex industry, it is much better equipped than the courts, “by specialization, by insight gained through experience, and by more flexible procedure,” to gather the relevant facts that underlie a particular claim involving that industry. See Far East Conference v. United States, 342 U.S. 570, 575, 72 S.Ct. 492, 494, 96 L.Ed. 576 (1952). In the present case, the PUC’s review of the nature of the market, the quality of present radiotelephone utility service, the competitive impact of defendant’s entry into the market, and various other issues would be an invaluable aid to the district court. Cf. MCI Communications Corp. v. American Tel. & Tel. Co., 496 F.2d 214, 223-224 (3 Cir. 1974).

Finally, adjudication of this case would necessarily require determination of a key threshold issue which is present in most antitrust cases involving regulated industries — whether the regulatory policy in the particular case can be reconciled with application of the antitrust laws, and if not, whether the scope and nature of the regulatory control exercised in the particular case precludes application of the antitrust laws. See Carter v. American Tel. & Tel. Co., supra, 365 F.2d at 493-497 “[T]he problem is not one of application of the antitrust laws but is one of accommodation of the antitrust policy to the regulatory policy. . . . The courts are obviously well equipped to make initial decisions involving application of the antitrust policy. But, before the particular regulatory agency has defined the particular regulatory policy in the particular case, the courts are not well equipped to make initial decisions involving accommodation of the antitrust policy to the regulatory policy.” 3 Davis, Administrative Law § 19.05, at 25 (1958 ed.). See MCI Communications Corp., supra, at 222.

In a case involving facts virtually identical to the facts in the present case, the district court stayed the federal action pending determination by the FCC,

“after giving due consideration to the likely competitive effects whether granting [defendant’s] application will serve ‘the public interest, convenience, and necessity.’ If the FCC should deny [defendant’s] application, the ■ instant Complaint will be dismissed as moot. If the FCC should grant [defendant’s] application, in whatever form, then plaintiff can renew its request to this Court for immediate injunctive and/or declaratory relief.” Radio Broadcasting Co. v. Bell Tel. Co. of Pa., 325 F.Supp. 168, 170 (E.D.Pa.1971). See also Carter v. American Tel. & Tel. Co., supra.

We endorse this procedure with respect to the present ease.

Therefore, we reverse the order dismissing the complaint in this action and remand with instructions to stay the action pending the final outcome of the PUC proceedings and then to proceed in a manner consistent with this opinion.

      . Plaintiffs liave indicated that they expect to show, inter alia, that Pacific and General have adopted an agreement whereby “Neither company will file for personal signalling system construction permits within their mutual Southern California Region unless in conformance with the joint plans or defer notifying the other company of its intention to proceed alone.” Appellant’s Opening Brief, at 5 n. 3.

        . The contention by Industrial and Radio that because neither the RUO nor the FOO has the authority to determine whether Pacific's and General’s activities will violate the antitrust laws, a stay of the federal action is inappropriate, is without merit. In ('drier, supra, the court stated :
      “That the ultimate decision of the FOO may not be an end to the matter is neither unexpected nor decisive. For the doctrine applies ‘even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to lie judicially defined.’ |The doctrine applies] ‘even if the court thinks that the arrangement alleged to violate the antitrust laws cannot be legally approved by the agency’ for ‘the court should still allow the agency first to pass upon the question.’ ” 365 F.2d at 49!) (citations omitted). See Southwestern Sugar & Molasses Co. v. River Terminals Co., 300 U.S. 411, 420, 79 S.Ct. 1210, 3 L.Ed.2d 1334 (1959).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Roslyn SILVERSTEIN, as personal representative of the Estate of Nathan Silverstein, Plaintiff-Appellee, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants, Hartford Accident & Indemnity Company, Defendant-Appellant.
    No. 74-2607
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 13, 1974.
    Rehearing Denied Feb. 4, 1975.

      Martin J. Sperry, Leonard M. Bernard, Jr., Fort Lauderdale, Fla., for defendant-appellant.
    Donald R. Niles, Fort Lauderdale, Fla., for plaintiff-appellee.
    Fleming, O’Bryan & Fleming, Fort Lauderdale, Fla., for other interested parties.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y. et al., 5th Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

The diversity question presented for decision by this appeal concerns the coverage extended under the oft-interpreted “Temporary Substitute” and “Newly Acquired” provisions of an automobile liability insurance policy. The quirk arose because the automobile involved in this particular accident was owned by the insured when the policy was written.

Arnold Fedele, the insured, had purchased a 1962 Chevrolet automobile in 1968 and had driven it until it became inoperable in 1971. He did not sell this vehicle. In October of 1971, Fedele purchased a 1961 Austin Healy, and at that time purchased from Hartford Accident and Indemnity Company the policy here in dispute. This policy insured the Austin as the described vehicle. The Chevrolet was not specifically mentioned therein. After the policy was issued the Austin was rendered inoperable by an engine fire and was temporarily unrepairable due to a scarcity of necessary foreign parts. Fedele then performed a major overhaul on the Chevrolet with the intention of driving it until he could fix the Austin. In August 1972, two weeks after he had begun operating the Chevrolet and before he had given any information concerning the change to Hartford, he had an accident which resulted in the death of Nathan Silver-stein.

Roslyn Silverstein, as personal representative of Nathan’s Estate, brought this suit for a declaratory judgment against Hartford on Fedele’s policy and against Liberty Mutual Insurance Company, Silverstein’s carrier, under its uninsured motorist provision. Both Hartford and Liberty denied coverage. Hartford argued that since the Chevrolet was owned by Fedele at the time its policy was obtained, the Chevrolet could not be a temporary substitute automobile or a newly-acquired automobile and thus was not an insured vehicle under its policy. Liberty was dismissed without prejudice and no appeal is taken from that action.

The trial court found that the Chevrolet had been totally inoperable when the policy was purchased (“ . . .in the backyard . . . without an engine and apparently without wheels”) and that HartfordVagent, when informed of these facts by Fedele, had told Fedele that he need not include the Chevrolet on the policy since it was not capable of use. That court held that the Chevrolet was covered by the Hartford policy under either the newly acquired or temporary substitute provisions or both.

On appeal, Hartford argues that the policy language unambiguously precludes any coverage for an “owned” automobile as a newly acquired or a temporary substitute vehicle. We disagree. Fedele paid for and Hartford extended coverage to one automobile. Fedele never owned or possessed more than one operable automobile during any part of the policy period. The facts found by the district court demonstrate Hartford never had more than the one-car exposure risk its policy covered. Under the unique facts of this case, the repaired Chevrolet could be considered either a temporary substitute or a newly acquired automobile. Glens Falls Insurance Company v. Gray, 386 F.2d 520 (5th Cir. 1967); Luke v. American Family Mutual Ins. Co., 476 F.2d 1015 (8th Cir. 1973). The thirty-day notice period pertinent to newly acquired automobile coverage had not expired at the time of the accident. We do not reach any issue as to the effect of the information given to and the response of Hartford’s agent.

Affirmed.

      . The relevant portions of the policy’s provisions are as follows:
      AUTOMOBILE COMBINATION POLICY
      HARTFORD ACCIDENT AND INDEMNITY COMPANY
      . . . Agrees with the insured . . . in consideration of the payment of the premium and in reliance upon the statements in the declarations and subject to the limits of liability, exclusions, conditions and other terms of this policy:
      I. Coverage A — Bodily Injury Liability: To pay on beiialf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.
      íjí ¡Js Sjc >H ift
      IV......
      (a) Automobile . . . the word “automobile” means:
      (3) Temporary substitute automobile— under Coverages A, , .an automobile not owned by tlie named insured or his spouse if a resident of the same household, while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction:
      (4) Newly Acquired Automobile — an automobile, ownership of which is acquired by the named insured . if (i) it replaces an automobile owned by . (Trim] and covered by this policy, or the company insures all automobiles owned by the named insured . on the date of its delivery, and (ii) the named insured . . . notifies the company within thirty days following such delivery date;
      V. Use of Other Automobiles: If the named insured . . . during the policy period . . . owns a private passenger automobile covered by this policy, such insurance as is afforded by this policy under [•Coverage] A . . . with respect. to said automobile applies with respect to any other automobile subject to the following provisions :
      (d) This insuring agreement does not apply : (1) to any automobile owned by or
      furnished for regular use to . . . the named insured


author: LEWIS, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert A. LEEDS, Defendant-Appellant.
    No. 74-1050.
    United States Court of Appeals, Tenth Circuit.
    Argued Sept. 9, 1974.
    Decided Nov. 15, 1974.

      William W. Deaton, Albuquerque, N. M., for defendant-appellant.
    Harris L. Hartz, Asst. U. S. Atty., Albuquerque, N. M. (Victor R. Ortega, U. S. Atty., on the brief), for plaintiff-appellee.
    Before LEWIS, Chief Judge, and HOLLOWAY and DOYLE, Circuit Judges.
   LEWIS, Chief Judge.

Robert Leeds appeals from the judgment on his jury trial conviction under 18 U.S.C. § 1153, robbery perpetrated by an Indian in Indian country. He challenges the methods by which Bureau of Indian Affairs investigators and tribal police cooperated in the investigation of the incident from which the robbery charge stemmed. This coordinated investigation, Leeds argues, had the effect of placing him twice in jeopardy in violation of the fifth amendment and was part of a “working arrangement” designed to deny his right to prompt arraignment before a federal magistrate. We conclude that Leeds’ arguments are without merit and we affirm.

Late on the evening of March 3, 1973, a man identified as Leeds entered the home of Roy Day located on the Laguna Indian Reservation near Albuquerque, New Mexico, and at knife point stole Mr. Day’s wallet and the keys to his truck. The robber forced Day’s seventeen-year-old son Kenneth to accompany him in the truck away from the Day residence. Mr. Day called for help. The first to arrive at the Day residence were Officers Lente and Paddock of the Bureau of Indian Affairs; they were followed by Officers Romero and Gooday of the Laguna Tribal Police. After Day explained what had happened, the tribal and BIA officers split up in an attempt to locate the boy and the truck. About half an hour later, Romero and Gooday found appellant Leeds and the truck in the parking lot of a bar in the vicinity. It was later discovered that Leeds had left Kenneth Day unharmed on the road four miles from the Day residence. Shortly after BIA Officers Lente and Paddock arrived in the tavern parking lot, Officer Romero drove Leeds back to the Day residence for identification. En route, Leeds apologized to the tribal officers for the incident at the Day home and admitted that he had also vandalized the Catholic church at nearby Seama, New Mexico, earlier that evening. Officer Romero testified that Leeds appeared at the time to have been drinking. When they arrived at the Day residence, Officer Romero formally arrested Leeds, charging him with disorderly conduct in violation of the La-guna Tribal Code. Leeds pleaded guilty and was sentenced to 30 days in jail.

After Officer Romero had taken Leeds in custody, BIA Officers Lente and Paddock interviewed members of the Day family and then contacted their superior officer for further instructions. On the morning after the incident at the Day residence, a BIA investigator interviewed Leeds in the jail at Los Lunas, New Mexico, and obtained a confession to the robbery. On May 24, 1973, a federal grand jury returned the indictment upon which Leeds was tried.

Leeds first argues that prosecution on the federal robbery charge placed him twice in jeopardy, his conviction under the tribal code having stemmed from the same set of facts as the federal charge, that is, the March 3 incident at the Day residence. We leave aside the question whether an Indian tribe is a sovereign “separate” from the United States under the rule of Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435, because we conclude that, in any event, the acts of the appellant underlying tribal and federal charges differ sufficiently to preclude the application of the double jeopardy clause. Officer Romero, who arrested Leeds on the tribal charge, testified that Leeds was arrested and jailed for his intoxicated condition and for his having admittedly vandalized the Seama church. Although Officer Romero encountered Leeds in connection with his investigation of the robbery, we discern no reason to doubt that he charged Leeds with disorderly conduct based upon the other misbehavior; Romero apparently preferred to leave Leeds’s felony prosecution in the hands of federal authorities. Even if the tribal charge of disorderly conduct surfaced from Leeds’s conduct at the Day residence the fifth amendment’s double jeopardy clause still would not bar federal prosecution for robbery since the elements of the two offenses— disorderly conduct and robbery — are different. Under any applicable test the tribal disorderly conduct charge, whether or not resting on Leeds’s conduct at the Day residence, was a legal stranger to the federal robbery charge. Prosecution on the latter is therefore not barred by the fifth amendment. ■

Leeds next argues that “cooperation” between tribal and BIA officers resulted in Leeds’s incarceration on the minor charge of disorderly conduct and was part of a “working arrangement” designed to enable BIA authorities to circumvent Rule 5(a), Federal Rules of Criminal Procedure, which requires that criminal suspects under federal arrest be brought before a magistrate “without unnecessary delay”. In order to correct what he characterizes as an injustice participated in by federal officers, Leeds urges this court to reverse the judgment of conviction in the exercise of its supervisory powers over the administration of criminal justice.

We note preliminarily what counsel for the appellant seems to assume, that Rule 5(a) does not apply to persons in tribal custody pursuant to charges brought in the tribal court, just as the rule does not apply to persons held in state custody. See Rule 54(a), Fed. R.Crim.P.; 25 CFR § 11.17. Accordingly we believe that the federal law developed to safeguard the rights of persons under federal investigation while in state custody is applicable to suspects, like Leeds, who are held in tribal custody. Thus where federal authorities are alleged to have conspired with state or tribal police in the denial of an arrested suspect’s right to prompt arraignment, the latter must prove actual collaboration toward that end between federal authorities and their state or tribal counterparts. “A bare suspicion that there was cooperation between the two agencies designed to deny fundamental rights is not sufficient, and will not justify reversing the trial judge who had the benefit of hearing the testimony and observing the demeanor of the witnesses.” United States v. Ireland, 10 Cir., 456 F.2d 74, 77.

The evidence in the present case shows that BIA authorities forbore from arresting Leeds not because of any “working arrangement” with tribal officers designed to circumvent Leeds’s right to prompt arraignment, but because of a local BIA policy requiring BIA investigators to check with their supervisors, whenever possible, before arresting on serious federal charges. Leeds’s incarceration on tribal charges here made such delay possible. Although BIA officers participated in the attempt to locate Leeds and the Day boy, tribal officers apprehended and arrested Leeds. The federal officers, significantly, did not influence or participate in the decision to charge Leeds with disorderly conduct. In short, we are unable to find any evidence of a working arrangement in derogation of Leeds's rights.

Affirmed.

      . The pertinent provision of the Tribal Code is as follows:
      Any Indian who shall engage in fighting in a public place, disturb or annoy any public or religious assembly, or appear in a public or private place in an intoxicated or disorderly condition, or who shall engage in any other act of public indecency or immorality, shall be deemed guilty of disorderly conduct and upon conviction thereof shall be sentenced to labor or confinement for a period not to exceed 60 days.

        See also Code of Indian Tribal Offenses: Disorderly Conduct, 25 CFR § 11.49.

      . In United States v. Keeble, 8 Cir., 459 F.2d 757, rev’d on other grounds, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844, the defendant was jailed initially on tribal charges and, while in jail, made incriminating statements relating to a federal offense in response to interrogation by federal officers. The court observed that since the arresting officer was both “an employee of the Bureau of Indian Affairs and a police officer at the reservation,” the defendant was at all times in federal custody and Rule 5(a) applied. In the present ease, by contrast, the arresting officer was employed by, and his authority derived solely from, the tribe. See 25 CFR § 11.-304. Absent some “working arrangement” between tribal and federal investigators — evidence of which we are unable to find — Leeds’s incarceration for the tribal code violation was manifestly tribal in character.


author: PER CURIAM.

text:
    Susie A. LEWIS and Ray F. Lewis, Plaintiffs-Appellants, v. STRICKLAND TRUCK LINES, Defendant-Appellee.
    No. 74-1237.
    United States Court of Appeals, Sixth Circuit.
    Oct. 23, 1974.

      William Stuart Zwick, James S. MacDonald, Knoxville, Tenn., for plaintiffs-appellants.
    R. Hunter Cagle, Poore, Cox, Baker, McAuley, Ray & Byrne, Knoxville, Tenn., for defendant-appellee.
    Before PECK and LIVELY, Circuit Judges, and CECIL, Senior Circuit Judge.
   PER CURIAM.

This is an appeal by plaintiffs-appellants, Susie A. Lewis and Ray F. Lewis, from a judgment on a jury verdict in favor of defendant-appellee, Strickland Truck Lines. The plaintiffs-appellants brought the action in the United States District Court for the Eastern District of Tennessee, Northern Division, to recover damages sustained by them in an automobile collision between their automobile and the truck of the appellee. The sole question at issue on this appeal is whether the trial judge erred in charging on contributory negligence as to the appellant Susie A. Lewis. The appeal is argued and briefed only as to this appellant.

Briefly, the facts are: On August 25, 1972, at about 2:00 P.M., the appellant, Ray F. Lewis, was driving the car, in which his wife Susie was a passenger, west on Interstate 40 in Knox County, Tennessee. As he was in the act of passing the truck of the appellee he observed three cars ahead of the truck, a car pulling a U-Haul trailer. This U-Haul trailer began to sway and cars ahead began applying their brakes. Mr. Lewis applied his brakes, rather sharply, and he lost control of his car. His car spun around and some part of his car made contact with the truck. The automobile of the appellants was damaged and both husband and wife claimed to be injured.

The truck was at all times in its right lane and when the driver observed the Lewis car in trouble he began pulling into the emergency lane. The Lewis car was in the left lane and there were other cars ahead in this lane of traffic. The car with the U-Haul trailer was apparently in the right lane when the trailer began to sway. Mr. Lewis’ speed was variously estimated at 55 to 65 miles per hour. The driver of the truck estimated his speed at the time at 50 miles per hour.

When the trial judge finished his charge to the jury he asked whether either side wanted him to excuse the jury while he called for exceptions or special requests. Both counsel responded in the negative. The judge then asked if the plaintiffs had any objection to any part of the charge or if they had any special requests. Counsel for the plaintiffs, appellants here, answered “no” to both questions.

It is well accepted in Federal practice that,

“No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” Rule 51 F.R.Civ.P.

Neither did counsel raise the question on motion for new trial, to wit:

“Comes the Plaintiffs, by and through their attorneys, and move the Court to grant them a new trial herein because the evidence preponderates against the verdict for the Defendant and said verdict indicates prejudice, passion and caprice on the part of the jury.”

We are of the opinion that the failure to object to the charge when given an opportunity, is determinative of this case. We proceed however, to discuss the argument of counsel for appellant, Susie Lewis.

The defendant’s defense was that the driver of the truck was free from negligence and that the accident was caused by the negligence of Ray F. Lewis, the driver of the automobile. The defendant alleged that should it be found otherwise the plaintiffs were guilty of proximate contributory negligence which would bar their recovery. Thus contributory negligence was put in issue in the pleadings.

In the pre-trial order agreed to by the attorneys, proximate or remote contributory negligence was stated as an issue. In the absence of a motion to take this defense from the jury the trial judge was justified in including it in his charge. In his statements about contributory negligence he did not infer that the appellant, Susie Lewis, was guilty of any negligence and we do not find that his statements were prejudicial to this appellant. If there were any error, it was harmless. Rule 61 F.R.C.P.

The following is a specimen of the use of the “contributory negligence” of the pláintiffs which occurred in several places in the charge:

“* * * so that if the truck driver violated this statute and that violation was the proximate cause of the accident and resulting injuries and plaintiffs were free from contributory negligence, plaintiffs could recover.” Emphasis added.

There is no place in the charge, where as argued by counsel, the trial judge imputes the negligence of the driver of the car to the wife as passenger. He makes a clear distinction,

“Now his wife occupies a different position because she was not the driver of the car, and unless you find her guilty of proximate contributory negligence, if you find the defendant guilty of proximate contributory negligence, she could recover.”

Again the judge made it clear that only proximate negligence on the part of Mrs. Lewis could bar her recovery.

“Now as previously indicated, Mrs. Lewis was not the driver of the car. Before she could be precluded from a recovery, if the jury should find proximate negligence upon the part of the' defendant, the jury would have to find that she was guilty of contributory negligence, that is, that she failed to exercise care for her own safety under the circumstances shown in this record.”

Further, the judge defined contributory negligence.

“Now contributory negligence is negligence upon the part of a plaintiff or plaintiffs. It is contributory if it is the proximate cause of the accident. Where a plaintiff by his own negligence caused, or contributed proximately to cause the accident and his injury, such plaintiff is not entitled to a verdict.”

The jury could apply this law and if it reached this issue in the case it could determine whether or not the appellant was guilty of any proximate contributory negligence.

Finally, the jury having been out only fifteen minutes, it is apparent that it did not reach a point in the case beyond the question of whether or not the driver of the defendant’s truck was negligent. This is consistent with our view of the evidence.

We do not find under the facts of this ease that it rises to a point of plain or fundamental error.

Judgment affirmed.


text:
    UNITED STATES of America, Appellant, v. Juan Antonio SUAREZ, Appellee.
    No. 134, Docket 74-1877.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 18, 1974.
    Decided Oct. 16, 1974.

      Edward R. Korman, Asst. U. S. Atty. (David G. Trager, U. S. Atty. for the E. D. of New York, Raymond J. Dearie, Asst. U. S. Atty., of counsel), for appellant.
    Morrow D. Mushkin, Garden City, N. Y., for appellee.
    Before MOORE, MULLIGAN and ADAMS, Circuit Judges.

       Of the Third Circuit Court of Appeals, sitting by designation.

   PER CURIAM:

This is an appeal by the United States from an order of Judge Dooling of the Eastern District of New York, entered on November 9, 1973, granting the motion of the appellee Juan Antonio Suarez for a judgment of acquittal. Suarez had been charged in a three-count indictment with possession with intent to distribute, distribution, and conspiracy to distribute one-eighth of a kilogram of cocaine. A co-defendant, Alberto Vera, pleaded guilty to one count of the indictment and Suarez went on trial on October 11, 1973. Count three, which charged Suarez with abetting Vera’s possession with intent to distribute, was dismissed by Judge Dooling at the conclusion of the Government’s direct case. The rest was given to the jury on the two counts of conspiracy and the abetting of Vera in distributing the cocaine. The jury failed to reach an agreement, Judge Dooling declared a mistrial, and the trial was terminated.

At the conclusion of the Government’s case, counsel for Suarez had moved for judgments of acquittal pursuant to Rule 29, Fed.R.Crim.P. The motion was denied by Judge Dooling but, after the mistrial, the motions for acquittal on both counts were renewed by counsel for Suarez, and granted in the memorandum and order of Judge Dooling.

While it is clear that the Criminal Appeals Act, as amended by the Omnibus Crime Control Act of 1970 (now 18 U.S.C. § 3731) was intended to authorize an appeal by the Government from an order of a district court terminating a criminal case as far as is constitutionally permissible, in our view the Double Jeopardy Clause prohibits further prosecution. The issue has been exhaustively discussed in our recent opinion, United States v. Jenkins, 490 F.2d 868 (2d Cir. 1973), cert. granted, 417 U.S. 908, 94 S.Ct. 2603, 41 L.Ed.2d 211 (1974). While this case and others presenting similar questions are presently on review before the Supreme Court, we see no reason to delay our decision here. In Jenkins, Judge Lumbard’s dissent was based on the lower court’s characterization of the order appealed from as the dismissal of an indictment. He agreed that if the decision below had been described as an acquittal, the Double Jeopardy Clause would prohibit the appeal. Jenkins, supra, 490 F.2d at 881. No such problem exists here. Judge Dooling’s order provides: “Ordered that the motion of the defendant, Juan Suarez, for a judgment of acquittal is granted.” As Justice Harlan pointed out in United States v. Sisson, 399 U.S. 267, 290, 90 S.Ct. 2117, 2129, 26 L.Ed.2d 608 (1970) it makes no difference that “in this case it was the judge — not the jury —who made the factual determinations . [Jjudges, like juries, can acquit defendants . . . .” Further, there is no doubt here that Judge Dooling’s ruling was based on the evidence presented at the trial, which he deemed insufficient to establish active participation by Suarez in the venture, so as to constitute conspiracy or abetting. As Judge Friendly pointed out in Jenkins, supra, 490 F.2d at 878, even though the lower court ruling be based upon an erroneous legal ground, a new trial is prevented by the Double Jeopardy Clause. We do not reach and express no opinion on the merits of the position taken below. There has been a legal determination of innocence on the basis of the facts, adduced at' the trial, relating to the general issues of the case, and therefore on the basis of Jenkins and the authorities relied upon in the majority opinion, the appeal is dismissed for lack of jurisdiction by virtue of the constitutional ban of the Double Jeopardy Clause.

      . In addition to Jenkins, the applicable cases are United States v. Wilson, 492 F.2d 1345 (3d Cir. 1973), cert. granted, 417 U.S. 908, 94 S.Ct. 2603, 41 L.Ed.2d 211 (1974) (does Doable Jeopardy bar a government appeal from a district court order, entered after a jury verdict of guilty, dismissing an indictment on the ground of unnecessary pre-indictment delay), and Serfass v. United States, 492 F.2d 388 (3d Cir. 1974), cert. granted, 416 U.S. 955, 94 S.Ct. 1967, 40 L.Ed.2d 304 (1974) (does Double Jeopardy bar a government appeal from an order, entered prior to the empanelling of a jury, dismissing an indictment on the basis of a legal ruling by the district court after examination of records and affidavits setting forth the evidence to be adduced at trial).


author: OPINION WALLACE, Circuit Judge: ELY, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Richard Ernest FRITTS, Defendant-Appellant.
    No. 74-1331.
    United States Court of Appeals, Ninth Circuit.
    Sept. 19, 1974.
    Rehearing denied Nov. 15, 1974.
    Certiorari Denied March 24, 1975.
    See 95 S.Ct. 1428.

      William R. McVay (argued), Los An-geles, Cal., for defendant-appellant.
    James Mueller, Asst. U. S. Atty., Tucson, Ariz., for plaintiff-appellee.
   OPINION

Before ELY and WALLACE, Circuit Judges, and POWELL, District Judge.

WALLACE, Circuit Judge:

Fritts was convicted of conspiracy to import marijuana, 21 U.S.C. § 963, importation of marijuana, 21 U.S.C. §§ 952 (a), 960(a)(1), and possession with intent to distribute marijuana, 21 U.S.C. § 841(a)(1). We affirm.

As regards the first claimed error, we do not believe the question of whether Fritts’ attorney would be allowed to testify was properly before the trial court. If it were, there was no offer of proof made as to what he would testify. See United States v. Crowder, 464 F.2d 1284 (9th Cir. 1972), cert. denied, 411 U.S. 908, 93 S.Ct. 1537, 36 L.Ed.2d 198 (1973); McCormick, Law of Evidence § 51, at 110 (2d ed. 1972). We decline to guess, as suggested by Fritts.

The trial judge stated before the jury that the prosecutor had intimidated the witness Palmer. While we decry such conduct, it does not require reversal of this conviction since the record does not disclose that Palmer’s testimony was affected by the intimidation. See Fuller v. Cox, 315 F.Supp. 867, 870 (W.D.Va. 1970).

Finally, Fritts claims reversal is in order because the trial court failed to give, on its own motion, a cautionary instruction on accomplice testimony. We have already rejected the contention. United States v. Randall, 491 F.2d 1317 (9th Cir. 1974). The parallel argument that uncorroborated accomplice testimony cannot lead to a conviction has been similarly rejected. United States v. Castro, 476 F.2d 750 (9th Cir. 1973). Fritts' argument that the government’s use of an accomplice witness after granting him immunity, early parole or other favors violates Fritts’ due process rights is rejected.

Affirmed.

ELY, Circuit Judge

(dissenting):

I respectfully dissent. I can recall no stronger case for a holding that the court’s failure, acting sua sponte, to present a cautionary instruction in respect to the prosecuting testimony of the accomplices constituted reversible error. Concerning this, I have hitherto expressed my general views in United States v. Randall, 491 F.2d 1317, 1321-1323 (9th Cir. 1974) (dissenting opinion).

In the present case, one of the accomplices who testified for the prosecution had been granted immunity in exchange for his incriminating testimony against the appellant, given by the accomplice before the grand jury. For a prior offense, this accomplice had been in the custody of federal penal authorities, but he was freed in advance of the time of the appellant’s trial.

The second accomplice who testified against the appellant was originally charged with the commission of three felonies in connection with the transaction involving the appellant. The prosecution dismissed two of these felony charges before this accomplice presented his testimony incriminating the appellant. Moreover, this prosecution witness had also been in federal custody because of a prior conviction and his application for parole had been rejected because of a pending criminal charge in a state court. But the state prosecution was apparently abandoned quite suddenly, whereupon this accomplice was released from federal custody on the same day that the first accomplice was released, only fourteen days before the occurrence of the appellant’s trial. The Government’s simultaneous releasing of these two felons on the same date would seem to be, of itself, remarkably coincidental.

The third accomplice offered by the prosecution was charged with three felonies arising from the transaction in which the appellant was alleged to have been involved. The Government dismissed all of the charges against this accomplice before he testified for the prosecution.

If the bare recitation of the above undeniable facts does not support my view that the trial judge should have instructed the jury that the testimony of the accomplices should be viewed with extreme caution, if not suspicion, then I doubt that elaborative argumentation could strengthen my foundation.

I would reverse.

       Honorable Charles L. Powell, United States District Judge, Eastern District of Washington, sitting by designation.

      . To me, the failure of Fritts’ defense attorney to request the cautionary instruction is thoroughly inexplicable. Surely, this neglect cannot be attributed to any valid strategic decision. If I am correct, Fritts may possibly bo able to establish, in post-conviction proceedings under 28 U.S.C. § 2255, that he did not receive the effective representation of competent counsel.
      In justice to Fritts’ appellate counsel, it should be noted that he did not represent Fritts at the trial level.


author: HILL, Circuit Judge.

text:
    Grant M. PRISBREY, Trustee in Bankruptcy of the Estate of DeWayne Iver-son, Plaintiff-Appellee, and Zions First National Bank, N.A., Intervening Plaintiff-Appellant, v. V. Glen NOBLE, Defendant-Appellee and Cross-Appellant, and St. Paul Fire and Marine Insurance Company, Substitute Defendant-Appellee and Cross-Appellant.
    Nos. 74-1002, 74-1003.
    United States Court of Appeals, Tenth Circuit.
    Argued Aug. 19, 1974.
    Decided Nov. 5, 1974.

      Richard H. Nebeker, Salt Lake City, Utah, for intervening plaintiff-appellant.
    Hersehel J. Saperstein, Salt Lake City, Utah, for defendant-appellee Pris-brey.
    H. Wayne Wadsworth, Salt Lake City, Utah, for substitute defendant-appellee St. Paul Fire & Marine Ins. Co.
    Before HILL and DOYLE. Circuit Judges, and SMITH, District Judge.

      Honorable Talbot Smith, of the Eastern District of Michigan, sitting' by designation.

   HILL, Circuit Judge.

FACTS

In this action, the appellee trustee in bankruptcy seeks to recover 35,000 shares of stock (or the stock’s fair value as of June 24, 1971) for the bankrupt estate. The intervening plaintiff-appellant, Zions First National Bank, N.A. (Zions), desires the court to declare a first and paramount lien upon the stock for the bank’s behalf to secure a claim against the bankrupt in the sum of $17,316.25 plus interest.

DeWayne Iverson, the bankrupt involved in this case, was president of Iverson Construction Company and was married to Sharolyn Iverson, the daughter of V. Glen Noble. On January 11, 1966, Iverson Construction Company, the Iversons, Noble (then secretary of the construction company) and his wife, and Clifton and Rhoda Clark (Mrs. Iver-son’s grandparents) signed a general agreement of indemnity. In this agreement, the indemnitors covenanted, inter alia, to save St. Paul Fire & Marine Insurance Company (substitute defendant-cross appellant) harmless from and against every claim, demand, liability, loss, etc., sustained because of the company’s execution of bonds on behalf of Iverson Construction Company.

The construction company sustained a loss of $132,905 for its 1970 fiscal year (October 1, 1969 to September 30, 1970). The accountant handling the company’s books testified the company probably had no net worth as of September 30, 1970. Iverson was informed of the loss in December, 1970. Early in 1971, Iverson discussed the construction company’s plight with bonding companies who had executed construction and performance bonds for the construction company’s projects. Iverson notified Noble that the bonding companies were saying that Noble was an indemnifier of all the jobs; Iverson periodically apprised Noble of the construction company’s fiscal status and advised Noble the company was not solvent. On June 10, 1971, a meeting was held to discuss how the construction company’s projects would be completed. Three bonding companies’ representatives, their respective attorneys, Iverson, Noble, and Noble’s attorney were present. After the meeting, Noble told Iverson that if he were required to make payments because of the indemnity agreements it would bankrupt him. • Noble’s attorney told Noble not to worry, that the latter had not signed a perpetuity bond.

By an instrument dated June 14, 1971, Iverson assigned Noble all right, title and interest Iverson owned in certain shares of Valtek Incorporated stock. On June 15, 1971, Iverson went to Zions and said that he needed to take a certificate representing 35,000 .Valtek shares to a transfer company to remove a restrictive legend on the stock and that he would return the stock later that afternoon or on ■ the following morning. Iverson signed a receipt agreeing to replace the stock with 35,000 shares of Valtek' by June 16, 1971. Iverson had had various loans at the bank and had delivered possession of this stock certificate on April 27, 1971, as security when he signed a $15,000 renewal note. Iverson took the single certificate to Intermountain Transfer Company and had the stock broken into three certificates, two of 15,000 shares each and one of 5,000 shares. Shortly after June 17, 1971, the stock certificates were endorsed in blank . and delivered to Noble. According to the pre-trial order, Iverson’s only possible indebtedness to Noble at the time of the execution of the assignment and delivery of the shares was under the 1965 indemnity agreement; the assignment and delivery was for the purpose of securing or indemnifying Noble against any loss which he might sustain because of his signing the indemnity agreement. Nothing was given Iverson by Noble for the shares.

An involuntary bankruptcy petition was filed against Iverson by the three bonding companies on September 22, 1971. A petition for bankruptcy was filed by Iverson Construction Company on December 3, 1971. On November 30, 1971, St. Paul filed suit against the in-demnitors in the District Court for the Third Judicial District in and for the County of Salt Lake, State of Utah, seeking recovery under the indemnity agreement of claims and obligations aggregating in excess of $250,000. Noble filed an answer denying liability. The instant case was filed against Noble by the trustee in bankruptcy of the estate of DeWayne Iverson on August 21, 1971. On November 1, 1972, the trial court granted Zions’ motion to intervene as a plaintiff. Following Noble’s assignment on January 16, 1973, to St. Paul Insurance Companies of all right, title and interest he possessed in the 35,000 shares of Valtek stock, St. Paul became the substitute defendant.

This case was tried to the court on March 16, 1973. The trial court made numerous findings including the following. (1) The bankrupt received fair consideration for the stock within the meaning of 11 U.S.C. § 107(d)(1); thus, the transfer was not fraudulent and voidable under 11 , U.S.C. § 107(d)(2)(a). (2) The transfer was made with an actual intent to hinder, delay or defraud either existing or future creditors (Iverson obtained the stock under false pretenses from the bank which was a creditor holding a valid lien on the stock) and Noble was not a bona fide purchaser under 11 U.S.C. § 107(d)(6) because his antecedent debt was not present fair equivalent value; consequently, the transfer was fraudulent under 11 U.S.C. § 107(d)(2)(d) and voidable under 11 U.S.C. § 107(d)(6). (3) The contingent debt was determined to be provable in bankruptcy and the transfer was voidable as a preference under 11 U.S.C. § 96(a)(1) and (b). (4) Noble was a bona fide purchaser of the shares (Utah Code Ann. § 70A-8-302) as he took the shares endorsed in blank, for value, in good faith and without notice of the fraud. The intervenor therefore had no claim precedent to the trustee. Thus the court declared the transfer to be null and void as against the trustee in bankruptcy but valid as against Zions. “The lien or security title of and said transfer” were ordered preserved for the bankrupt estate’s benefit.

THE 11 U.S.C. § 107(d)(2)(d) CLAIM

Appellant St. Paul argues there is no evidence that Iverson intended to hinder, delay or defraud his creditors by making the stock transfer to Noble; this intent is an essential element of a fraudulent transfer under § 107(d)(2)(d). The trial court, however, specifically held that Iverson obtained the shares under false pretenses from the bank and that this conduct constituted an actual intent to defraud the creditor bank. The finding of a fraudulent intent is a factual determination. Nicklaus v. Peoples Bank & Trust Co., 369 F.2d 683 (8th Cir. 1966). This factual determination of the trial court can only be reversed if it is clearly erroneous. Schafer v. Hammond, 456 F.2d 15 (10th Cir. 1972). See 4 Collier on Bankruptcy, ¶ 67.37, n. 47 at 544 (14th ed. 1971).

Many courts have recognized that a finding of the requisite intent for a fraudulent transfer under § 107 (d) (2) (d) may be dependent on facts which lead to the irresistible conclusion that the transferor’s conduct was motivated by such intent; direct proof of the fraudulent intent is not required. 4 Collier on Bankruptcy, supra, f 67.37[3] at 536-37. There is evidence that an assignment to Noble of the Valtek shares was executed by Iverson on June 14, 1971; Iverson obtained the shares from Zions on June 15, 1971; Iverson signed a receipt agreeing to return the shares to Zions; Iverson subsequently delivered the shares to Noble. Here the transfer occurred between family members, son-in-law and father-in-law. Courts give close scrutiny to intrafamily transactions and “ . . . the relationship of the parties in conjunction with other circumstances often makes a trustee’s case compelling notwithstanding the absence of direct evidence of fraud.” 4 Collier on Bankruptcy, supra, at 542. The trial court also found an intent to prefer one creditor (Noble) over others. The intent to prefer alone does not make a transfer fraudulent under § 107(d)(2) (d) but is an important consideration in determining if an intent to defraud existed. Van Iderstine v. National Discount Co., 227 U.S. 575, 33 S.Ct. 343, 57 L.Ed. 652 (1913).

St. Paul contends the transferee’s good faith prevents a determination of actual intent to defaud. The question of the good faith of the transferee Noble, however, is more appropriate to issues under § 107(d)(6) dealing with the trustee’s preservation of the transfer. St. Paul did not analyze the transfer under these provisions. Concerning § 107(d)(6) the bank argues (1) a transfer is only preserved under this provision if a bona fide purchaser has given less than full consideration or an equity is still available for general creditors, (2) the transfer is preserved for the bona fide purchaser and the remaining equity goes to the bankrupt’s estate, and (3) here the transferee was not a bona fide purchaser and the statute does not authorize the lien’s preservation. This provision, however, does not require a bona fide purchaser before its preservation effect is applicable; on the contrary, if a bona fide purchaser has given present fair equivalent value, the preservation of the transfer for the bankrupt estate’s benefit is not allowed. The trial court determined no present fair value had been given by Noble because only an antecedent debt was involved here. 4 Collier on Bankruptcy, supra, |[ 67.41 at 592-93. Consequently, the savings clause was not applicable to this transfer and the court properly could order the transfer preserved for the benefit of the estate with the trustee succeeding to Noble’s rights.

THE 11 U.S.C. § 96 CLAIM

The trustee claims that the transfer was also a voidable preference under § 96(a)(1) and (b) of the Bankruptcy Act. St. Paul primarily attacks the trial court’s determination that a voidable preference had occurred by arguing the evidence does not show Noble had reasonable cause to believe Iverson was insolvent, which is an essential element of a voidable preference.

St. Paul, in particular, argues knowledge of the corporation’s insolvency would not give Noble reasonable cause to believe Iverson was personally insolvent. Admittedly, the trustee must show more than a mere suspicion of insolvency. Grant v. First Nat’l Bank, 97 U.S. 80, 24 L.Ed. 971 (1878). However, the trustee need not prove the transferee knew of the debtor’s insolvency. Rather, the trustee will have proven this element of a voidable preference if he shows that a creditor has “ . knowledge or notice of facts and circumstances which would incite a person of reasonable prudence under similar circumstances to make an inquiry and, if such an inquiry would lead to the development of facts essential to the knowledge of the situation . . . .” Carroll v. Holliman, 336 F.2d 425, 428 (10th Cir. 1964), cert. den’d, 380 U.S. 907, 85 S.Ct. 889, 13 L.Ed.2d 795 (1965). In Carroll, the court recognized that kinship between a creditor and president of a debtor corporation did not compel a finding of the existence of a reasonable cause to believe debtor was insolvent. In this case, Noble was not only the father-in-law of the debtor but also was an indem-nitor who had been informed of the insolvency of his son-in-law’s major business activity. Iverson had told Noble the only item of value he really had was the Valtek stock. Although only one of seven indemnitors of the surety, Noble had expressed concern that he would be bankrupt if held liable on the agreement; this indicates some understanding of Iverson’s total precarious financial position.

St. Paul also alleges that the record is devoid of any evidence indicating Iverson was personally insolvent at the time of the transfer. The schedules in bankruptcy and the testimony of the accountant relating back these schedules to the date in question were available to the trial court. St. Paul makes no specific challenge to this methodology’s use. 1 Collier on Bankruptcy, supra, ¶ 1.19 at 130.7-.8.

THE BANK VERSUS THE TRUSTEE

The trial court determined the transfer of the stock was null and void as against the trustee and ordered the transfer preserved for the bankrupt estate. 11 U.S.C. §§ 96(b), 107(d)(6). Zions asserts it has a precedent claim and seeks to apply the stock directly to Iverson’s debt it is holding rather than await a pro rata return from the trustee. The trustee, of course, does not rely on rights which Iverson had in the stock but, by virtue of the preservation provisions aforementioned, alleges he has succeeded to Noble’s rights. 9 Am. Jur.2d Bankruptcy § 1126 (1963). The trial court held Noble was a bona fide purchaser of the stock under Utah Code Ann. § 70A-8-302 and this status gave the trustee rights superior to Zions.

Under § 70A-8-302, a person is a bona fide purchaser if he is “a purchaser for value in good faith and without notice of any adverse claim who takes delivery of a security in bearer form or of one in registered form issued to him or indorsed to him in blank.”

Zions attacks the bona fide purchaser determination by alleging no value was given by Noble to Iverson. Value is defined in Utah Code Ann. § 70A-1-201(44) which provides in pertinent part:

a person gives ‘value’ for rights if he acquires them
(b) as security for or in total or partial satisfaction of a pre-existing claim . . .

The pre-trial order indicates consideration, if any, must be found in the earlier execution of the indemnity agreement. Under this agreement Noble and Iverson were co-indemnitors with joint and several liability; if either party discharged more than his proportionate share of the obligation, that party would have a right to contribution from the other. 18 C.J. S. Contribution § 6 (1939). The trial court apparently held this right to contribution, although contingent, was a pre-existing claim which the stock secured. The bank argues no claim was in existence and consequently no value was given. The bank cites 18 C.J.S. Contribution § 4 which states:

The right to contribution is inchoate from the date of the creation of the relation between the parties, but is not complete, so as to be enforceable, until there has been an actual payment, in whole or in part, of the common obligation or until something is done equivalent to a discharge thereof.

The right to contribution arises when the relationship is entered and is enforceable only upon payment by one coobligor of more than his share. McCallister v. Jones, 208 Or. 365, 300 P.2d 973 (1956). Noble’s right to contribution from Iverson came into existence upon execution of the indemnity agreement, but that claim could not be enforced until Noble paid more than his proportionate share of the obligation. This appears to be a contingent claim, an obligation which it remains uncertain if a party will ever become liable to pay. 14 C.J.S. Claim p. 1185 (1939).

No Utah case determining if a contingent debt is a pre-existing claim for purposes of Utah Code Ann. § 70A-1-201(44) has been cited to us. Pre-code law apparently ' found consideration when a pledge was made to secure a pledgor’s contingent liability. Annot., 43 A.L.R. 1069 (1926). See 68 Am.Jur. 2d Secured Transactions § 70 (1973). No intention to change these cases’ results has been indicated.

Noble was a bona fide purchaser; he acquired the stock free of any adverse claim. Utah Code Ann. § 70A-8-301(2). “‘Adverse claim’ includes a claim that a transfer was or would be wrongful or that a particular adverse person is the owner of or has an interest in the security.” § 70A-8-301(l). The trustee by virtue of the preservation order succeeds to Noble’s status. Clearly, any claim by Zions that the transfer was wrongful would be insufficient to overcome the bona fide purchaser status.

As a last defense, Zions contends the general principles of equity require reinstatement of its lien against the stock and preclude the bankrupt estate’s enrichment by the bankrupt’s fraud at Zions’ expense. The cases relied on by Zions do not involve the preservation of a transfer and the priority rights of a trustee as successor to a third party bona fide purchaser. Without the intervention of the trustee in bankruptcy, Noble’s assignee would retain the property. Equitable considerations do not allow a court to set aside the applicable bankruptcy law and to order preferential payments. In re American Fuel & Power Co., 151 F.2d 470 (6th Cir. 1945). The preservation provisions of 11 U.S.C. §§ 96(b) and 107(d)(6) allow preservation for the benefit of the estate and not specific creditors.

CONCLUSION

The trial court’s determination of an intent on Iverson’s part to hinder, delay or defraud his creditors by transferring the shares was not clearly erroneous. Noble did not give present fair equivalent value for the transfer and could not qualify as a bona fide purchaser giving such value under 11 U.S.C. § 107(d)(6). Thus, the transfer may be preserved for the benefit of the estate with the trustee succeeding to Noble’s rights.

The trial court correctly determined that Noble had reasonable cause to believe Iverson was insolvent and consequently a voidable preference had occurred. 11 U.S.C. § 96(a)(1) and (b). The lien or security title was properly preserved for the benefit of the estate.

Based on Utah Code Ann. § 70A-1-201(44), value was given for the transfer of stock when Noble accepted the stock as security for a pre-existing claim —Iverson’s contingent liability to contribute if Noble paid more than his proportionate share of the obligation under the indemnity agreement. Noble was a bona fide purchaser under Utah Code Ann. § 70A-8-302 and the trustee succeeded to Noble’s rights for the benefit of the estate. The bank has no claim to the stock precedent to that of the trustee.

Affirmed.


author: CASTLE, Senior Circuit Judge.

text:
    In the Matter of NIMZ TRANSPORTATION, INC.,
    No. 73-2099.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 20, 1974.
    Decided Nov. 5, 1974.

      Harry E. Clem, Urbana, 111., William A. Widmer, III, Sherman M. Carmell, Chicago, 111., for appellant.
    Terrence L. Vogel, Edward Litak, Danville, 111., for Bankrupt.
    Before CASTLE, Senior Circuit Judge, and FAIRCHILD and SPRECHER, Circuit Judges.
   CASTLE, Senior Circuit Judge.

Petitioner wage claimants appeal from the order of the district court disallowing their claims for unpaid wages and other benefits from the bankrupt, Nimz Transportation, Inc. The court below concluded that the proofs of claim had not been timely filed within the six month period permitted by the Bankruptcy Act, 11 U.S.C. § 93(n) (1970). We reverse.

11 ' U.S.C. § 93 (n) provides that “[e]laims which are not filed within six months after the first date set for the first meeting of creditors shall not be allowed . . . .” The creditors of the bankrupt first met on March 4, 1971, and the six month limitation period therefore expired on September 4, 1971. In April 1973, it was learned for the first time that the referee could not locate the proof of claims and that they were therefore not considered as filed. Upon receiving this information, the attorney for the wage claimants promptly submitted to the referee in bankruptcy a petition to refile the proofs of claim.

At the hearing on the petition, the wage claimants asserted that the proofs of claim were mailed to the clerk of the district court on or about May 20, 1971, and that therefore the claims would have reached the referee well before the expiration of the limitation period on September 4, 1971. Counsel responsible for the filing of the claims detailed the normal mailing procedure used in his law office for outgoing mail, and testified that although his employees could not remember mailing the particular package containing the proofs of claim, he recalled initiating the normal mailing procedures for those claims. The evidence also disclosed that the mailing envelope was correctly directed and bore the proper return address, and that the original cover letter and proofs of claim were not found in a later search of counsel’s law office. The bankrupt did not present any evidence, but it was conceded that the clerk’s file did not contain the proofs of claim. There was no direct testimony, however, by the clerk that these particular claims were not received, or of the procedures used in processing claims received through the mail. At the close of the hearing, the referee denied the petition to refile the claims, and the district court, affirming the referee’s order, concluded that “depositing a claim in bankruptcy in the mails ... is not sufficient to constitute ‘filing’ . . ., and the claim is only ‘filed’ when it is received by the Clerk of the Court or the Referee.”

It is true that mailing alone does not constitute filing, but that filing requires delivery and receipt by the proper party. United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897 (1916). It is also well recognized, however, that a timely and accurate mailing raises a rebuttable presumption that the mailed material was received, and thereby filed. Hagner v. United States, 285 U.S. 427, 430, 52 S.Ct. 417, 76 L.Ed. 861 (1932); Haag v. Commissioner, 59 F.2d 516, 517 (7th Cir. 1932).

Although the record supports the finding of a timely and accurate mailing, we cannot conclude that the presumption of receipt which correspondingly arises has been rebutted. The bankrupt relies on several lower court cases to support the district court’s order that the claims should not be allowed. See, e. g., In re Beattie, 102 F.Supp. 107 (W.D.Mich.1951); In re R. B. Rose Co., 43 F.2d 446 (S.D.N.Y.1930). In those cases, however, the court found that the record established that the various claims were never in fact received. The record here cannot support a similar conclusion.

The court below relied on the fact that the clerk’s files did not contain the proof of claims. However, we agree with the court in Jones v. United States, 226 F.2d 24, 27 (9th Cir. 1955) that this circumstance is by itself insufficient to rebut the presumption of receipt. The record contains no other evidence of nonreceipt, and therefore the present case is unlike In re Super Electric Products Corp., 200 F.2d 790, 793 (3d Cir. 1953) because there the presumption was rebutted by direct testimony that the specific registered letters were not received, and by the fact that thé record indicated that the letters were improperly addressed. Accordingly, here the presumption of receipt must prevail, and we conclude that it must be found that the proofs of claim were received, and therefore filed, before the six month limitation period expired.

The order of the district court is reversed.

Reversed.

      . Under the Bankruptcy Act, proofs of claim may be filed with the clerk of the district court whose duty it is to pass them on to the referee. Bankruptcy Gen. Order 20, 28 U.S.C.A., superseded by Bankruptcy R. 509, 28 U .S.C.A. (Supp.1973) ; 11 U.S.C. § 79(4) superseded by Bankruptcy R. 507(b), 28 U.S.C.A. (Supp.1973).

      . Attorney for the wage claimants requested that the referee take judicial notice of the procedure of the clerk’s office with regard to incoming mail, but the referee did not rule on the request. The record does not indicate that it was noticed sua sponte, and we assume that it was not sinee the procedure followed at any particular time would be disputable and therefore would not be a proper matter for judicial notice. See In re Aughenbaugh, 125 F.2d 887 (3d Cir. 1942).


text:
    CLEAR GRAVEL ENTERPRISES, INC., Plaintiff-Appellant, v. Nolan KEIL, State Director, Bureau of Land Management, State of Nevada, and Rolla Chandler, Chief Division of Technical Services, Bureau of Land Management, Reno, Nevada being agencies of the United States Department of the Interior, United States of America, Defendant-Appellees.
    No. 72-2396.
    United States Court of Appeals, Ninth Circuit.
    Oct. 9, 1974.
    John W. Bonner (argued), Las Vegas, Nev., for plaintiff-appellant.
    Eva R. Datz, Atty. (argued), Lands & Natural Resources Div., Dept, of Justice, Washington, D. C., for defendant-appellees .
   OPINION

Before KOELSCH and KILKENNY, Circuit Judges, and McGOVERN, District Judge.

PER CURIAM:

This is an appeal from a Summary Judgment dismissing an action to set aside a decision of the United States Department of the Interior Board of Land Appeals which held two mining claims null and void for lack of discovery of a valuable mineral deposit.

The issue at law concerning the claims was whether minerals had been found which would justify a person of ordinary prudence in making further expenditures of labor and means upon the property with a reasonable prospect of success in developing a valuable mine. United States v. Coleman, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170 (1968). That is, did the Appellant satisfactorily show that the mineral in question could be extracted, removed and marketed at a profit on October 2, 1953, the date when the lands involved were effectively segregated from mineral appropriation for small tract purposes, 43 U.S.C. § 682a et seq., and on July 23, 1955 when common variety sand and gravel deposits as here involved became no longer locatable. 30 U.S.C. § 611. United States v. Barrows, 404 F.2d 749 (9th Cir., 1968), cert. denied 394 U.S. 974, 89 S.Ct. 1468, 22 L.Ed.2d 754 (1969).

The claims in question were located for sand and gravel on January 21, 1946 and represent the last two of Appellant’s sixteen association placer claims of 160 acres each of sand and gravel deposits in the Las Vegas, Nevada, Valley. Of the fourteen claims previously litigated, seven were ordered patented to the Appellant and the others were declared invalid.

While the marketability of the mineral could have been demonstrated by the Appellant by a showing of its accessibility, its proximity to the market, the demand for it and by the Appellant’s bona fide efforts to develop the claims and compete in the market with the product extracted from those claims, nonetheless, the record demonstrates that Appellant's evidence fell far short of the required showing. Instead, the evidence indicates that although Appellant had between 1952 and no later than 1956 leased all sixteen claims to the second largest sand and gravel-producing company in the area, that company had mined but one of those claims, and the one being mined was neither of the two claims here involved. Other evidence produced at the time of the hearing before the Hearings Examiner further demonstrated that the one mine being operated provided sufficient sand and gravel to meet the needs of the market and that it could yield a sufficient quantity of sand and gravel to provide for any increased share of the market to its producer.

A government geologist testified that he had inspected the claims and that in his opinion, the sand and gravel could not be extracted, removed and marketed at a profit as of July 23, 1955. A government valuation engineer examined the claims, and because a 1955 market had not been demonstrated for the materials on the claims, he, too, reached the same conclusion as the geologist.

Of particular significance is the obvious fact appearing from the record that the quantity of Appellant’s other sand and gravel holdings in the area, when combined with the state of the market, were such as to deter the Appellant from expending money and effort to extract and market the sand and gravel from the claims in question from the time of location in 1946 until approximately 1963. In fact, the lack of development of the claims were such that as of July 23, 1955, the Appellant had not even constructed a road to them.

Based upon the record before it, we conclude that the District Court was correct in dismissing the action by way of Summary Judgment.

Affirmed.

       The Honorable Walter T. McGovern, United States District Judge for the Western District of Washington, sitting by designation.


author: BRIGHT, Circuit Judge.

text:
    Susan Rae BAKER, Appellant, v. STUART BROADCASTING COMPANY, a corporation, et al., Appellees.
    No. 74-1307.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 13, 1974.
    Decided Nov. 13, 1974.

      Benjamin M. Wall, Omaha, Neb., for appellant.
    Kenneth C. Stephan, Knudsen, Berk-heimer, Endacott & Beam, Lincoln, Neb., for appellees.
    Before GIBSON, Chief Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   BRIGHT, Circuit Judge.

Susan Rae Baker initiated this action against appellees, Stuart Broadcasting Company, the Grand Island Broadcasting Company (an affiliate or subsidiary of Stuart Broadcasting Company), James Stuart and Helen Stuart as 100 percent owners of the stock of the two corporations, and Richard Chap-in, president of Stuart Broadcasting Company, alleging that these defendants unlawfully conspired to deprive her of her right to equal protection and due process of law under the Constitution by refusing to employ her at a Grand Island, Nebraska, radio station because of her sex. The action, brought pursuant to 42 U.S.C. § 1985(3) , was dismissed by the district court for failure to state a claim under this section. The court ruled that § 1985(3) did not extend beyond racially-motivated conspiracies. We need not pass on the substantive issue of whether § 1985(3) will afford judicial relief for nonracially-motivated conspiracies because the petitioner’s amended complaint does not allege an actionable conspiracy cognizable under this statute.

In her complaint, Ms. Baker alleged that on or about April 1, 1973, she applied for an advertising and sales position with radio station KRGI in Grand Island, Nebraska. She further claims that she was tentatively hired for this position but was subsequently advised by defendant-Richard Chapin, president of defendant-Stuart Broadcasting Company, that she would not be hired because she was a female. Ms. Baker’s original complaint named Stuart Broadcasting Company as the sole defendant. She subsequently filed an amended complaint adding the additional parties listed above as defendants. Ms. Baker’s sole allegation of conspiracy relates “that the corporate and individual defendants herein named conspired to and did deprive plaintiff of her rights *- * She seeks to extend the purview of § 1985(3) to discriminatory business decisions participated in by members of one business entity.

In dealing with this precise issue of an alleged conspiracy in a business situation, the Seventh Circuit Court of Appeals in Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir. 1972), observed:

We * * * believe that the statutory requirement that “two or more persons * * * conspire or go in disguise on the highway,” is not satisfied by proof that a discriminatory business decision reflects the collective judgment of two or more executives of the same firm. * * *

[I]f the challenged conduct is essentially a single act of discrimination by a single business entity, the fact that two or more agents participated in the decision or in the act itself will normally not constitute the conspiracy contemplated by this statute.

The record shows that Ms. Baker’s complaint is directed at a radio broadcasting company which, through its personnel or owners, declined to employ her. The petitioner does not allege the necessary elements of conspiracy required to maintain a cause of action pursuant to 42 U.S.C. § 1985(3). Dombrowski v. Dowling, supra, 459 F.2d at 196; see Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir.), cert. denied, 409 U.S. 1042, 93 S.Ct. 529, 34 L.Ed.2d 492 (1972); Blackburn v. Fisk University, 443 F.2d 121, 124 (6th Cir. 1971); cf. Hill v. McClellan, 490 F.2d 859 (5th Cir. 1974). The district court properly dismissed the action without prejudice to Ms. Baker asserting her claims of employment discrimination in an action pending in district court brought pursuant to 42 U.S. C. § 2000e-5, see n. 2, supra.

Affirmed.

      . Section 1985 (3) states in relevant part:
      (3) If two or more persons in any State or Territory conspire or go in disguise on t'.e highway or on the premises of another,. for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; * * * in any case of conspiracy set fortli in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspiratox-s.

      . In its dismissal, lxowever, the district court specifically noted that 42 U.S.C. § 2000e-5 of Title VII of the Civil Rights Act of 1964 affords Ms. Baker an opportunity for redress for denial of employment based on sex discrinxixxation.
      At oral argument, the parties advised the court that Ms. Baker has now commenced an actioxx for employment discrinxixxation under Title VII. Apparexxtly Ms. Baker sought relief under § 1985(3) in an attempt to circumvent the delays incident to presenting a claim before the Federal Equal Employment Opportunity Commission and, thereafter, before the Nebraska Equal Employment Opportunity Commission.

      . The Supreme Court, in Griffin v. Breckenridge, 403 U.S. 88, 102 n. 9, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), specifically reserved the question of whether a nonracially-moti-vated conspiracy would be actionable under § 1985(3).


text:
    UNITED STATES of America, Appellee, v. Elbert Lee EASLEY, Appellant.
    No. 74-1271.
    United States Court of Appeals, Ninth Circuit.
    Sept. 27, 1974.
    James T. Ford (argued), Sacramento, Cal., for appellant.
    Bruce Babcock, Jr. (argued), Asst. U. S. Atty., Sacramento, Cal., for appellee.
   OPINION

Before MERRILL and ELY, Circuit Judges, and REAL, District Judge.

PER CURIAM:

Easley was convicted of one count of conspiracy in connection with the handling of counterfeit money (18 U.S.C. § 371) and six more counts, four of passing counterfeit notes, one of attempting the passing of a counterfeit note, and the last, of possession of a counterfeit note, all in violation of 18 U.S.C. § 472. He was sentenced to six concurrent fifteen-year terms of confinement on six of the counts and an additional five-year term of confinement on count one of the indictment, this to be served consecutively. In this appeal, Easley directs the principal portion of his argument to the proposition that the evidence was insufficient to support the conviction of Easley as to several of the counts. His argument as to count one, the conspiracy count, has no merit whatsoever. Both the defendant and his wife were identified as being persons passing counterfeit money on various occasions. While we are doubtful that the evidence was sufficient to justify determinations of Easley’s guilt as to counts two, four, and five, we have no difficulty in concluding that there was no evidentiary deficiency as to counts three, six, and seven. Since the sentences on the counts other than that charging conspiracy were made to run concurrently, we. exercising our discretion, need not elaborate concerning our doubt as to the sufficiency of the prosecution’s evidence pertaining to counts two, four, and five.

Easley also complains over the court’s permitting the prosecution to introduce evidence that Easley had been convicted in 1968 for having passed counterfeit bills produced from the same plate or negative as the counterfeit money involved in the present case. This argument boarders on the frivolous, since the 1968 conviction was comparatively recent and the evidence of such was manifestly material to the issue of Easley’s criminal intent. The court properly admonished the jury as to the restrictive purpose for which the evidence of the prior conviction was received and might properly be considered.

Bearing on count seven, Easley was arrested on June 28, 1973 and, at that time, an agent of the Secret Service found a counterfeit $100 bill in Easley’s possession. The agent testified that he arrested Easley pursuant to an arrest warrant. In this the agent may have been mistaken, since the only warrant in the record before us appears to have been issued on September 5, 1973, over two months after Easley’s arrest. This cannot operate to Easley’s advantage, however, since the record reveals that the agent had adequate probable cause to arrest Easley on June 28th even assuming that no valid arrest warrant was outstanding at the time.

Finally, Easley argues that his conviction should be reversed because the defense and prosecution attorneys conferred when he was not present. The subject of the conference was procedural, involving the scope of possible cross-examination of the defendant. These are the types of conferences wherein an accused need not be present, and, as a matter of fact, it is often desirable that he not be so. It does not appear that Easley requested to be a party to the conference of which he complains, and his attorney participated in the conference voluntarily.

The judgments of conviction are affirmed.

       Honorable Manuel L. Real, United States District Judge, Los Angeles, California, sitting by designation.


author: GURFEIN, Circuit Judge.

text:
    Ray L. ELDRED, Jr., et al., Plaintiffs-Appellees, v. TOWN OF BARTON, NEW YORK, Defendant-Appellant.

    No. 52, Docket 73-2782.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 21, 1974.
    Decided Nov. 25, 1974.
    Donald J. Kemple, Syracuse, N. Y. (Hancock, Estabrook, Ryan, Shove & Hust, Syracuse, N. Y., on the brief), for defendant-appellant.

      Alan J. Friedlander, Waverly, N. Y., for plaintiffs-appellees.
    Before MOORE, OAKES and GUR-FEIN, Circuit Judges.

       Editor’s Note: The opinion of the Court of Appeal in Doe v. Wohlgemuth published in the advance sheets at this citation (505 F.2d 186), was withdrawn from the bound volume upon the Court’s vacation of judgment and grant of rehearing en bane.

   GURFEIN, Circuit Judge.

This is an appeal from a judgment entered upon a jury verdict after a trial before Judge Edmund Port in the United States District Court for the Northern District of New York. Defendant Town of Barton challenges a wrongful death recovery of $91,500 by the administrator of the decedent’s estate and his parents. We affirm.

The action arises from an unwitnessed accident which occurred in the early morning hours of a foggy night on September 3, 1971. The plaintiff’s decedent and his companion who lived in the neighborhood were killed when the car in which they were riding started around a left hand unmarked curve on a hill and left the narrow road, Hill Road, plunging into a glen below. On the plaintiff’s view, which the jury accepted, the vehicle left the Hill Road to its right after running upon loose gravel and broken, rutted edges of the roadway. The edge of the precipice over which the car plunged was at 40° angle below the pavement of the road. There were no curve warning or speed limit signs, no center line or shoulder markings. The guard rails and the wire cable between them were down. The slope at this point breaks quite steeply after rising slightly. The quite steep slope begins only nine feet from where the vehicle left the roadway.

An expert for the plaintiff, a professor of Engineering at Cornell, testified that the road was badly engineered, that it was improperly banked and insufficiently marked, and that erosion had made a hazard of the shoulder. It was his opinion that because of the way the road was banked a vehicle would tend to go off the curve to the right and that the loose gravel would act as “rollers.” A policeman and two other witnesses testified that broken pavement jutted the edge of the road and that loose gravel was on the main roadway. The wire cable of the guard rail protecting the dangerous curve at the site of accident was shown to have been down for several years. Hill Road was a town road maintained by the defendant. The Town had been given notice of all these conditions by a claim filed two years earlier after an accident at the same place.

Faced with this compelling circumstantial evidence, which related both to negligence and proximate cause, the Town did not seriously contest its own negligence. It argued, however, that such evidence was insufficient to prove that its negligence was the proximate cause of the accident. In its view, since tire marks suggested that the car went off the road in a straight line without skidding and since the car was travelling fast enough to hit trees on the steep embankment at the side of the road well above ground level, the proper inference to be drawn was that-the driver’s contributory negligence in operating the car caused the accident. The jury did not agree, perhaps partly because the bases of the trees that were struck were four feet below the level of the road on that steep embankment so that no excessive speed would necessarily be inferred.

Under New York law this Court must take “the view of the proof most favorable to the verdict.” Hannan v. Schmidt, 18 A.D.2d 854, 236 N.Y.S.2d 107 (3d Dept. 1963); Park v. Village of Waverly, 457 F.2d 1139 (2d Cir. 1972). Given that standard of review, we believe that the jury was justified in finding that the defendant Town was negligent and that its negligence was a proximate cause of the accident. Park v. Village of Waverly, supra.

The primary issue urged on appeal is that the evidence was insufficient as a matter of law for submission to the jury. It is also contended that the trial judge erred in refusing to charge that the jury must determine the defendant’s negligence to be the sole proximate cause of the accident in order to find for the plaintiff. We do not read New York law to substantiate either proposition.

While the New York cases involving sufficiency of circumstantial evidence to show negligence and proximate causation are not entirely consistent, we believe that this case is controlled by Wragge v. Lizza Asphalt Construction Co., 17 N.Y.2d 313, 270 N.Y.S.2d 616, 217 N.E.2d 666 (1966). In Wragge, similarly a case involving an unwitnessed auto accident, the Court of Appeals stated that

“[Circumstantial evidence offered by plaintiffs ' need not exclude all other possible causes of the accident. On the evidence produced, viewing it in a light most favorable to plaintiffs, it was more reasonable that the accident was caused by the [defendant’s negligence] . . . than . some other happening which may have caused the driver to lose control of the automobile. The task of weighing and evaluating the evidence belonged to the jury . . . .” 17 N.Y.2d at 321, 270 N.Y.S.2d at 622, 217 N.E.2d at 670.

It is true, as the Town asserts, that other possible causes of this accident (including negligent operation) can be imagined, but, under Wragge, that is not enough to require a directed verdict for the defendant. What is decisive on a motion for directed verdict “is not the number of possible explanations but their relative probability and, in turn, the legal inferences that can most reasonably be drawn from the most probable ones.” Evans v. S. J. Groves & Co., 315 F.2d 335, 343 (2 Cir. 1963). Particularly since New York puts the burden of proof in death cases on the defendant, there was insufficient proof of contributory negligence on the part of plaintiff’s decedent to require a directed verdict for the defendant.

In light of this discussion, we have determined that the trial judge’s refusal to charge the jury that defendant’s negligence must have been the sole cause of the accident was not error. See Pros-ser, Torts, § 41 at 239 (4th Ed. 1973).

We have considered the appellant’s other claims and find them to be without merit. The verdict, while generous, was not excessive.

Affirmed.

      . Jurisdiction is based on diversity of citizenship.

      . In light of our holding in favor of the ap-pellee under New York law and a stipulation made at trial that “New York law will control on all questions except damages” (App. p. 50), we do not reach the appellee’s contention that a federal rule rather than the state rule on sufficiency of evidence should govern. While that question is debatable and apparently undecided in this Circuit (see e. g. Evans v. S. J. Groves & Sons Co., infra, 315 F.2d at 342 n. 2; Simblest v. Maynard, 427 F.2d 1, 4-7 (1970); Park v. Village of Waverly, infra, 457 F.2d at 1140 n. 1 (1972)), its resolution is not necessary since we have decided in favor of the ai)pellee under New York law. See Dick v. New York Life Ins. Co., 359 U.S. 437, 444-445, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959).

      . See, e. g., Boyce Motor Lines v. State of New York, 280 App.Div. 693, 117 N.Y.S.2d 289 (3d Dept. 1952), aff’d, 306 N.Y. 801, 118 N.E.2d 819 (1954), but there was insufficient proof of negligence on the part of the state.

      . See also Park v. AGllage of Waverly, supra, Gurevitch v. State of New York, 309 N.Y. 711, 128 N.E.2d 416 (1955); Huston v. County of Chenango, 253 App.Div. 56, 1 N.Y.S.2d 252 (3d Dept. 1937), aff’d, 278 N.Y. 646, 16 N.E.2d 301 (1938); Rugg v. State of New York, 284 App.Div. 179, 131 N.Y.S.2d 2 (3d Dept. 1954).

      . A simple showing that the car must have gone off the road at high speed is insufficient to prove the negligence of the driver. See Cole v. Swagler, 308 N.Y. 325, 125 N.E.2d 592 (1955).

      . New York tilts the burden in favor of a wrongful death plaintiff by inverting its usual rule that plaintiffs must prove lack of contributory negligence. N.Y.E.P.T.L. § 5-4.21. See Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 (1948).