author: SIMPSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Dr. Marion Ray WINDHAM, Defendant-Appellant.
    No. 73-2883
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 20, 1974.

      W. S. Moore, Julie Ann Epps, Jackson, Miss., for defendant-appellant.
    Robert Hauberg, U. S. Atty., Donald Strange, Asst. U. S. Atty., Jackson, Miss., Meyer Rothwacks, Scott P. Crampton, Asst. Attys. Gen., Richard B. Buhrman, William D. Hyatt, Attys., Tax Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   SIMPSON, Circuit Judge:

This appeal is from conviction and sentence to pay fines totaling $10,000 for two counts of a two-count indictment charging violations of Title 26 U.S.C. Sec. 7201 by knowingly and wilfully attempting to evade and defeat a substantial portion of income taxes owed by appellant for the years 1967 and 1968. The appellant, Dr. Marion Ray Wind-ham, was a physician engaged in general practice in Jackson, Mississippi for a number of years including the tax years involved. The government in keeping with advice to the defendant prior to trial, proved its case by the net worth expenditures method. The guilty verdict was returned June 20,1973.

The defendant on June 27, 1973 filed a lengthy motion for acquittal, or in the alternative, for a new trial, as to which a hearing was held July 6, 1973, exhibits in affidavit form were received, and oral testimony was taken. The trial judge denied this alternative motion by a lengthy opinion-order on July 20, 1973.

On appeal Dr. Windham does not contest the sufficiency of the government’s proof of his guilt. Instead he raises three points of claimed error occurring at his trial which he asserts prejudiced his right to a fair trial. We find no merit in any of the errors asserted and affirm.

The first contention is that it was error to permit Dr. Robert P. Myers, Wind-ham’s former partner, to testify that Windham performed certain operations and did not report the fees therefrom as income. The trial counsel for the government indicated in a pre-trial conference that the government would not prove specific items of unreported income in proving its case. The defense was on notice that Dr. Myers would testify as a prosecution witness, but that since he was away and not available for a statement, no Jencks Act material as to his testimony was available.

In compliance with the requirement of Holland v. United States, 1954, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150, that the government prove a likely source from which the net worth increases could have originated, Dr. Myers was first asked on direct examination whether Dr. Windham performed abortions during the tax years in question and failed to report the income. An objection was raised, and after a colloquy between court and counsel with the jury absent, the trial judge indicated that the question might be put using the words “certain operations” in place of “abortions”. The witness answered affirmatively. Although defense counsel moved for a mistrial, which was denied, he agreed with the court that the “abortion” question had been asked so casually that it was best not to accentuate the incident in the jury’s mind by further allusion to it.

Appellant urges that the testimony was so highly prejudicial as to outweigh its relevance, and that failure to exclude it was prejudicial, citing Ford v. United States, 5 Cir. 1954, 210 F.2d 313, where we reversed a police chief’s tax evasion conviction because of testimony as to graft payments by prostitutes. We read Ford as having been reversed because of the speculative, hearsay nature of the testimony, not because of its content. We think the evi-dentiary purpose of Dr. Myers’ testimony was clear, and we do not find that it was introduced or alluded to in a manner calculated to inflame the jury. United States v. Tunnell, 5 Cir. 1973, 481 F.2d 149 is a recent tax evasion net worth case in which we approved proof of criminal activity (prostitution payoffs) as á likely source of funds. In this case the trial judge’s jury instructions were clear to the point that the defendant was on trial for tax evasion and for no other crimes.

Somewhat the same considerations govern our rejection of the defendant’s claim of prejudice from the rebuttal testimony of two government witnesses to circumstances permitting the inference that he had performed operations at his apartment. During his testimony in his own defense Windham categorically denied on cross-examination that this had ever occurred. One of the witnesses, a maid at the apartment house where appellant lived, testified that she had at times found syringes and bloody towels and sheets in his apartment and on one occasion found a large sum of cash hidden in his bed. The other witness, the apartment house manager testified that one of the appellant’s mattresses was so blood-soaked it had to be destroyed.

This testimony was relevant, it was material in impeachment of Windham’s credibility and it was proper rebuttal. No error occurred when the jury was permitted to consider it.

The testimony of these two witnesses is linked with that of Dr. Myers in appellant’s brief as the basis for contending that the government misled him by not disclosing the nature of this testimony prior to trial. As indicated above, Dr. Myers’ name was furnished, although the nature of his expected testimony was not available and this was stated. That the government’s witness list, gratuitously furnished the appellant without any court order requiring it, did not contain the names of the two rebuttal witnesses is not surprising. Rebuttal witnesses are a recognized exception to all witness disclosure requirements. Prejudice may not be successfully asserted in this connection; Harris v. New York, 1970, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 646, 28 L.Ed.2d 1.

The final contention advanced is that the trial judge commented unfairly on the evidence and damaged the credibility of defendant’s witnesses before the jury on two occasions. The point is without arguable merit.

The first instance occurred when the defendant’s mother took the stand. The main purpose in calling her as a defense witness was to elicit testimony as to substantial direct loans exceeding $50,000, to her son as an explanation of increased funds in his possession and at his disposal during the crucial tax years. She took the stand with her old family Bible under her arm, from which she extracted records and testified as to them. She said she had used the Bible regularly for more than 30 years to record her savings. At this point the trial judge apparently in an attempt at levity interjected a rather innocuous comment:

THE COURT: “That’s a funny place to keep a record in my way of thinking. It is certainly not very favorably impressing.”

MR. KENDALL (appellant’s counsel): “These are the facts, Sir.”

THE COURT: “All right.”

This is the entire incident. No objection to the comment was made prior to the motion for new trial. In the course of his full, fair and complete jury instructions the able trial judge told the jury:

“Any comments made by the court during the course of the testimony is not in any way to be considered as evidence by the jury. The jury must determine its verdict solely upon the evidence that it has heard from the witness stand consisting of testimony and exhibits, and the verdict of the jury must be derived from no other source.
And from any comments that the court has made during the course of the trial, if the jury believes that any comments made by the court is to determine the outcome of this lawsuit, then please disregard any such comments and return a verdict solely on the evidence and testimony introduced during the course of this trial.
I’m not aware of any comments, but I have nothing to do with facts in the case. I am supreme on the question of what the law is in this case, but you are supreme on the question of what the facts are as shown by the evidence, and if I have made any comment which you regard as having any bearing on what the facts are, you may disregard that.”

Assuming arguendo that the trial judge’s comment was improper it is clear to us beyond peradventure that any harmful effect engendered by it was cured by these instructions.

There is even less substance to the second and last complaint of this nature. The defendant on trial produced an expert witness to summarize the evidence. During his testimony a dispute arose between opposing counsel as to whether the expert witness was about to testify to facts which were not in evidence. In making his evidentiary ruling in the jury’s presence the trial judge told defendant’s counsel that the witness could not testify as to facts not in the record, but that he could “put any slant he cared to” on facts in the record. This was an accurate statement of the

law, explaining the settled function of such an expert witness, to interpret the facts in evidence in a manner favorable to his side’s theory of the case. The case cited by appellant in this regard, Bursten v. United States, 5 Cir. 1968, 395 F.2d 976, 983, is totally inapposite to this situation, as well as to the comment about the Bible during the testimony of appellant’s mother.

We find no merit in this appeal. The judgment appealed from is

Affirmed.

      . The appellant was also placed on probation, for five years conditioned upon payment of the fines and settlement of his civil income tax liability for the two years in question.

      . We note in passing that while Dr. Myers was never cross-examined by the defense as to this point, defense counsel alluded to “abortion” frequently and freely in his closing argument to the jury.

      . Interestingly enough, despite these denials, Dr. Windham testified in detail in connection with his motion for new trial as to numerous treatments of patients, usually first aid by him at his apartment. He denied charging a fee for these procedures. They did not include any abortion.


source: Caselaw Access Project

author: JOHN R. BROWN, Chief Judge:

license: Public Domain

text:
    CANAL INSURANCE COMPANY, Plaintiff-Appellant, v. James C. BALDREE, Defendant-Appellee.
    No. 73-3017
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 20, 1974.
    Converse Bright, Valdosta, Ga., for plaintiff-appellant.
    Robert B. Williamson, Sol Altman, Thomas J. Loftiss, II, Thomasville, Ga., for defendant-appellee.
    Before BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   JOHN R. BROWN, Chief Judge:

This appeal raises the sole question whether the trial court erred in not ruling as a matter of law that the geographical limitation of use endorsement in an Insurer’s automobile policy excluded coverage for the occurrence in question. The trial court, declining counter motions for summary judgment because of a supposed ambiguity conflict, submitted the issue of coverage to a jury for a factual determination which impliedly held coverage existed. Whatever doubts we might have — and they are considerable — that this was a case for jury assessment, especially on a record that contained not a single stitch of evidence on the asserted underlying construction or the intention of the parties — we conclude that judge, jury, or a little bit of both got to the right decision and we therefore affirm.

Insurer issued its policy to Assured (James C. Baldree) which concededly was in full force and effect on June 18, 1972, the date of the accident in question. The policy contained a geographical limitation endorsement which specified the radius for each vehicle.

It is undisputed that had the same policy been issued without these geographic limitations a higher premium would have been payable.

The underlying accident occurred during the last leg of a 2,000 mile trip which Assured had taken from the principal garage site in Boston, Georgia to Huntspoint, New York and back to Boston via Washington, D.C. Assured was only ten to fifteen miles from Boston, Georgia when he collided with a truck. Thus the trip itself took the vehicle well outside the restrictive 400 mile radius but the actual collision occurred within the radius.

The Insurer insists that as a matter of Georgia law the terms of the policy were so clear that the trial judge should have entered summary judgment for it initially and in any event directed a verdict for it at trial. To this end Insurer presses Wallace v. Virginia Surety Co., Inc., 1949, 80 Ga.App. 50, 55 S.E.2d 259, as controlling. And well it might since it has a beguiling similarity which would, if indistinguishable, be the Erie floodlight from the latest, highest writing court, Ford Motor Co. v. Mathis, 5 Cir., 1963, 322 F.2d 267, 269, and compel a reversal, a result we would reject if left to our own juridical devices on contract interpretation.

In Wallace the geographic restriction contained two elements the second of which is comparable to part [ii] of Insured’s clause (note 2, supra). But the first was quite different since it constituted a promissory warranty against the operation of the vehicle beyond the radius area.

This is not just an effort on our part to find a distinction. The Georgia Court in positive terms emphasized the operational-use aspect, so much so that it characterized the agreement as a promissory warranty.

Unlike a covenant in terms of operation use of the vehicle as in Wallace, the restriction here speaks only in terms of insurance coverage. The Assured makes no agreement not to use the vehicle beyond the radius. All he agrees to is that the “insurance applies only while” the vehicle is operated “within the radius.” (See part [i], note 2, supra).

Since there is no warranty as to operational use of the vehicle but only a dual provision ([i] and [ii], note 2, supra) excluding coverage, interpretation and application of this geographical restriction to terminate coverage once the perimeter was breached would produce absurd results. The mileage which could be run on any given trip, during any particular time could be virtually unlimited provided only that the radius was not exceeded. And in the course of such journeys practically every kind of driving condition could be encountered, high speed Interstate, through ways, metropolitan city traffic, hilly or flat, town or country roads.

Freed from any specific Erie ruling we think the proper principle to apply is that of suspension of coverage.

Under that doctrine, in the absence of terms which would compel it, the policy does not come to an end. Rather coverage is suspended during the continuation of the violation of policy terms. Coverage under the policy terms is therefore not destroyed but suspended as long as the specific policy violations are occurring. The insurance during this time of suspension is as if no insurance policy had been in force. Travelers Protective Association v. Prinsen, 1934, 291 U.S. 576, 582, 54 S.Ct. 502, 504, 78 L.Ed. 999, 1003.

On the uneontradicted, stipulated facts the insured vehicle was on the occurrence being operated within the specified radius. Coverage was, of course, suspended during the time the vehicle traveled outside the perimeter. Once the vehicle came back within the magic circle under circumstances which do not even remotely raise a question of extraterritorial tant, cf. Henjes, note 12, supra, the insurance reattached to cover an incident occurring within the policy’s geographical area. The policy was an annual one calling for an annual premium and giving annual protection. The reduced premium was accorded because during the annual period coverage might be unavailable if the vehicle went beyond the perimeter. But while in the perimeter the protection charged and paid was fully effective without taint or contamination from the vehicle’s having transgressed the boundary.

Affirmed.

      . Canal Insurance Company.

      . We have inserted bracketed numbers [i], [ii] for ease of reference:
      “In consideration of the premium charged for policy to which this endorsement is attached, it is understood and agreed that
      [i] insurance applies only while the respective vehicles are operated within the radius indicated for each vehicle. It is further agreed that the radius is measured from the garage location indicated on this endorsement . . . and that
      [ii] no vehicle is covered if operated beyond its radius . . . . It is expressly understood and agreed that occasional trips beyond the radius specified are not permitted.”

      . Vehicle Number Garage Location Radius in Miles 1 Boston, Georgia 400

      . All agree that Georgia law should apply as the policy was issued to a Georgia resident. Jacobs v. Merchants Fire Assurance Corp. of New York, 5 Cir., 1938, 99 F.2d 655, cert. denied, 306 U.S. 654, 59 S.Ct. 643, 83 L.Ed. 1052.

      . We assume, without deciding for Georgia-Erie lights, this is a sufficient indicator by the highest, latest writing Court, even though for Georgia courts, judges, and lawyers it may have slight (or no) significance since with a dissent it is not a precedent. Ga.Code Ann. ch. 24-3626 (1971). FidelityPlienix Ins. Co. v. Mauldin, 1970, 123 Ga.App. 108, 179 S.E.2d 525, 527; Freeman v. Martin, 1967, 116 Ga.App. 237, 156 S.E. 2d 511, 514.

      . “The company shall not be liable for, nor will it pay any loss . . . that results from any accident or loss occurring while the . . . automobiles . . . are being operated outside the radius of 500 miles of the place where such automobiles . . . are principally garaged.”

      . “In consideration of the premium at which the policy is written, it is agreed that the automobile . . . described in the policy will be used and operated entirely within a radius of 500 miles of the place where such automobiles . . . are principally garaged.” (Emphasis supplied).

      . “The plaintiff agreed in the first paragraph of the quoted ‘commercial radius endorsement’ not to drive the automobile beyond the 500 mile radius. This agreement showing on its face a consideration therefor constituted a promissory warranty on the part of the plaintiff, which when violated by him in sending his vehicle covered by the policy on a trip to Miami, Florida, beyond that radius, entitled the defendant to declare the policy, for the purposes of that trip, or operation, in its entirety, void.” 55 S.E.2d at 261.

      . As presumably a carrier of ICG exempt commodities, the vehicle could have stayed continuously on the road as it went from place to place in search of cargo for transportation and delivery. For example, the vehicle could have gone from Boston to Tallahassee, to Ocala, to Tampa, to Daytona Beach, to Jackson, to Savannah, to Charleston, to Columbia, to Charlotte, to Asheville, to Augusta, back to Columbia, to Atlanta, to Chattanooga, to Birmingham, to Meridian, to New Orleans, to Mobile, to Montgomery, to Tiffton, to Jacksonville, to Atlanta, to Tallahassee, and back to Boston, never breaching the 400 mile perimeter, for a total of approximately 3,500 miles.

      . Lineas Aereas Colombianas Exp. v. Travelers Fire Insurance Co., 5 Cir., 1958, 257 F.2d 150, 155. See note 11, infra.

      . Fidelity Phenix-Fire Insurance Co. v. Pilot Freight Carriers, 4 Cir., 193 F.2d 812; Hutto v. Atlantic Life Insurance Co., 4 Cir., 58 F.2d 69, 71; Ciaramitaro v. Saskatchewan Government Insurance Office, D.C.Mass., 144 F.Supp. 237, 1956 A.M.C. 928, affirmed, 1 Cir., 234 F.2d 491, 1956 A.M.C. 1400; Waters v. National Life & Accident Insurance Co., D.C.Okl., 61 F.Supp. 957; Fort Worth Lloyds Insurance Co. v. Lane, Tex. Civ.App., 189 S.W.2d 78 (no writ history). See also 29 Am.Jur., Insurance, §§ 751-757; and Annotations, 52 A.L.R. 843 and other cases cited in 257 F.2d at 155, n. 9.

      . As the celebrated case of Henjes v. Aetna Insurance Co., 2 Cir., 1943, 132 F.2d 715, 719, 1943 A.M.C. 27, emphasizes, the consequences of the momentary breach of policy terms must be operationally dissipated before the coverage “reattaches”. This is no factor here since the restriction limitation was as to radius only, not mileage, which could be unlimited if done in the 800 mile circle with the hub of Boston, Georgia.


author: AINSWORTH, Circuit Judge:

text:
    Jean Paul MAS and Judy Mas, Plaintiffs-Appellees, v. Oliver H. PERRY, Defendant-Appellant.
    No. 73-3008
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 22, 1974.
    Rehearing and Rehearing En Banc Denied April 3, 1974.

      Sylvia Roberts, John L. Avant, Baton Rouge, La., for defendant-appellant.
    Dennis R. Whalen, Baton Rouge, La., for plaintiffs-appellees.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty; Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   AINSWORTH, Circuit Judge:

This case presents questions pertaining to federal diversity jurisdiction under 28 U.S.C. § 1332, which, pursuant to article III, section II of the Constitution, provides for original jurisdiction in federal district courts of all civil actions that are between, inter alia, citizens of different States or citizens of a State and citizens of foreign states and in which the amount in controversy is more than $10,000.

Appellees Jean Paul Mas, a citizen of France, and Judy Mas were married at her home in Jackson, Mississippi. Prior to their marriage, Mr. and Mrs. Mas were graduate assistants, pursuing coursework as well as performing teaching duties, for approximately nine months and one year, respectively, at Louisiana State University in Baton Rouge, Louisiana. Shortly after their marriage, they returned to Baton Rouge to resume their duties as graduate assistants at LSU. They remained in Baton Rouge for approximately two more years, after which they moved to Park Ridge, Illinois. At the time of the trial in this case, it was their intention to return to Baton Rouge while Mr. Mas finished his studies for the degree of Doctor of Philosophy. Mr. and Mrs. Mas were undecided as to where they would reside after that.

Upon their return to Baton Rouge after their marriage, appellees rented an apartment from appellant Oliver H. Perry, a citizen of Louisiana. This appeal arises from a final judgment entered on a jury verdict awarding $5,000 to Mr. Mas and $15,000 to Mrs. Mas for damages incurred by them as a result of the discovery that their bedroom and bathroom contained “two-way” mirrors and that they had been watched through them by the appellant during three of the first four months of their marriage.

At the close of the appellees’ case at trial, appellant made an oral motion to dismiss for lack of jurisdiction. The motion was denied by the district court. Before this Court, appellant challenges the final judgment below solely on jurisdictional grounds, contending that appel-lees failed to prove diversity of citizenship among the parties and that the requisite jurisdictional amount is lacking with respect to Mr. Mas. Finding no merit to these contentions, we affirm. Under section 1332(a)(2), the federal judicial power extends to the claim of Mr. Mas, a citizen of France, against the appellant, a citizen of Louisiana. Since we conclude that Mrs. Mas is a citizen of Mississippi for diversity purposes, the district court also properly had jurisdiction under section 1332(a) (1) of her claim.

It has long been the general rule that complete diversity of parties is required in order that diversity jurisdiction obtain; that is, no party on one side may be a citizen of the same State as any party on the other side. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806); see eases cited in 1 W. Barron & A. Holtzoff, Federal Practice and Procedure § 26, at 145 n. 95 (Wright ed. 1960). This determination of one’s State citizenship for diversity purposes is controlled by federal law, not by the law of any State. 1 J. Moore, Moore’s Federal Practice j[ 0.74 [1], at 707.1 (1972). As is the case in other areas of federal jurisdiction, the diverse citizenship among adverse parties must be present at the time the complaint is filed. Mullen v. Torrance, 22 U.S. (9 Wheat.) 537, 539, 6 L.Ed. 154, 155 (1824); Slaughter v. Toye Bros. Yellow Cab Co., 5 Cir., 1966, 359 F.2d 954, 956. Jurisdiction is unaffected by subsequent changes in the citizenship of the parties. Morgan’s Heirs v. Morgan, 15 U.S. (2 Wheat.) 290, 297, 4 L.Ed. 242, 244 (1817); Clarke v. Mathewson, 37 U.S. (12 Pet.) 164, 171, 9 L.Ed. 1041, 1044 (1838); Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1113 n. 1, 1 L.Ed. 2d 1205 (1957). The burden of pleading the diverse citizenship is upon the party invoking federal jurisdiction, see Cameron v. Hodges, 127 U.S. 322, 8 S.Ct. 1154, 32 L.Ed. 132 (1888); and if the diversity jurisdiction is properly challenged, that party also bears the burden of proof, McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Welsh v. American Surety Co. of New York, 5 Cir., 1951, 186 F.2d 16, 17.

To be a citizen of a State within the meaning of section 1332, a natural person must be both a citizen of the United States, see Sun Printing & Publishing Association v. Edwards, 194 U.S. 377, 383, 24 S.Ct. 696, 698, 48 L.Ed. 1027 (1904); U.S.Const. Amend. XIV, § 1, and a domiciliary of that State. See Williamson v. Osenton, 232 U.S. 619, 624, 34 S.Ct. 442, 58 L.Ed. 758 (1914); Stine v. Moore, 5 Cir., 1954, 213 F.2d 446, 448. For diversity purposes, citizenship means domicile; mere residence in the State is not sufficient. See Wolfe v. Hartford Life & Annuity Ins. Co., 148 U.S. 389, 13 S.Ct. 602, 37 L.Ed. 493 (1893); Stine v. Moore, 5 Cir., 1954, 213 F.2d 446, 448.

A person’s domicile is the place of “his true, fixed, permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom . ” Stine v. Moore, 5 Cir., 1954, 213 F.2d 446, 448. A change of domicile may be effected only by a combination of two elements: (a) taking up residence in a different domicile with (b) the intention to remain there. Mitchell v. United States, 88 U.S. (21 Wall.) 350, 22 L.Ed. 584 (1875); Sun Printing & Publishing Association v. Edwards, 194 U.S. 377, 24 S.Ct. 696, 48 L.Ed. 1027 (1904).

It is clear that at the time of her marriage, Mrs. Mas was a domiciliary of the State of Mississippi. While it is generally the case that the domicile of the wife — and, consequently, her State citizenship for purposes of diversity jurisdiction — is deemed to be that of her husband, 1 J. Moore, Moore’s Federal Practice ¶ 0.74 [6. — 1], at 708.51 (1972), we find no precedent for extending this concept to the situation here, in which the husband is a citizen of a foreign state but resides in the United States. Indeed, such a fiction would work absurd results on the facts before us. If Mr. Mas were considered a domiciliary of France — as he would be since he had lived in Louisiana as a student-teaching assistant prior to filing this suit, see Chicago & Northwestern Railway Co. v. Ohle, 117 U.S. 123, 6 S.Ct. 632, 29 L.Ed. 837 (1886); Bell v. Milsak, W.D.La., 1952, 106 F.Supp. 219— then Mrs. Mas would also be deemed a domiciliary, and thus, fictionally at least, a citizen of France. She would not be a citizen of any State and could not sue in a federal court on that basis; nor could she invoke the alienage jurisdiction to bring her claim in federal court, since she is not an alien. See C. Wright, Federal Courts 80 (1970). On the other hand, if Mrs. Mas’s domicile were Louisiana, she would become a Louisiana citizen for diversity purposes and could not bring suit with her husband against appellant, also a Louisiana citizen, on the basis of diversity jurisdiction. These are curious results under a rule arising from the theoretical identity of person and interest of the married couple. See Linscott v. Linscott, S.D.Iowa, 1951, 98 F.Supp. 802, 804; Juneau v. Juneau, 227 La. 921, 80 So.2d 864, 867 (1954).

An American woman is not deemed to have lost her United States citizenship solely by reason of her marriage to an alien. 8 U.S.C. § 1489. Similarly, we conclude that for diversity purposes a woman does not have her domicile or State citizenship changed solely by reason of her marriage to an alien.

Mrs. Mas’s Mississippi domicile was disturbed neither by her year in Louisiana prior to her marriage nor as a result of the time she and her husband spent at LSU after their marriage, since for both periods she was a graduate assistant at LSU. See Chicago & Northwestern Railway Co. v. Ohle, 117 U.S. 123, 6 S.Ct. 632, 29 L.Ed. 837 (1886). Though she testified that after her marriage she had no intention of returning to her parents' home in Mississippi, Mrs. Mas did not effect a change of domicile since she and Mr. Mas were in Louisiana only as students and lacked the requisite intention to remain there. See Hendry v. Masonite Corp., 5 Cir., 1972, 455 F.2d 955, cert. denied, 409 U. S. 1023, 93 S.Ct. 464, 34 L.Ed.2d 315. Until she acquires a new domicile, she remains a domiciliary, and thus a citizen, of Mississippi. See Mitchell v. United States, 88 U.S. (21 Wall.) 350, 352, 22 L.Ed. 584, 587-588 (1875); Sun Printing & Publishing Association v. Edwards, 194 U.S. 377, 383, 24 S.Ct. 696, 698, 48 L.Ed. 1027 (1904); Welsh v. American Security Co. of New York, 5 Cir., 1951, 186 F.2d 16, 17.

Appellant also contends that Mr. Mas’s claim should have been dismissed for failure to establish the requisite jurisdictional amount for diversity cases of more than $10,000. In their complaint Mr. and Mrs. Mas alleged that they had each been damaged in the amount of $100,000. As we have noted, Mr. Mas ultimately recovered $5,000.

It is well settled that the amount in controversy is determined by the amount claimed by the plaintiff in good faith. KVOS, Inc. v. Associated Press, 299 U.S. 269, 57 S.Ct. 197, 81 L. Ed. 183 (1936); 1 J. Moore, Moore’s Federal Practice ¶ 0.92 [1] (1972). Federal jurisdiction is not lost because a judgment of less than the jurisdictional amount is awarded. Jones v. Landry, 5 Cir., 1967, 387 F.2d 102; C. Wright, Federal Courts 111 (1970). That Mr. Mas recovered only $5,000 is, therefore, not compelling. As the Supreme Court stated in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-290, 58 S.Ct. 586, 590-591, 82 L.Ed. 845:

[T]he sum claimed by the plaintiff controls if the claim is apparently made in good faith.
It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of the plaintiff to recover an amount adequate give the court jurisdiction does not show his bad faith or oust the jurisdiction. . to
. . . His good faith in choosing the federal forum is open to challenge not only by resort to the face of his complaint, but by the facts disclosed at trial, and if from either source it is clear that his claim never could have amounted to the sum necessary to give jurisdiction there is no injustice in dismissing the suit.

Having heard the evidence presented at the trial, the district court concluded that the appellees properly met the requirements of section 1332 with respect to jurisdictional amount. Upon examination of the record in this case, we are also satisfied that the requisite amount was in controversy. See Jones v. Landry, 5 Cir., 1967, 387 F.2d 102.

Thus the power of the federal district court to entertain the claims of appellees in this case stands on two separate legs of diversity jurisdiction: a claim by an alien against a State citizen; and an action between citizens of different States. We also note, however, the propriety of having the federal district court entertain a spouse’s action against a defendant, where the district court already has jurisdiction over a claim, arising from the same transaction, by the other spouse against the same defendant. See ALI Study of the Division of Jurisdiction Between State and Federal Courts, pt. I, at 9-10. (Official Draft 1965.) In the case before us, such a result is particularly desirable. The claims of Mr. and Mrs. Mas arise from the same operative facts, and there was almost complete interdependence between their claims with respect to the proof required and the issues raised at trial. Thus, since the district court had jurisdiction of Mr. Mas’s action, sound judicial administration militates strongly in favor of federal jurisdiction of Mrs. Mas’s claim.

Affirmed.

      . The motion was actually made just prior to the testimony of appellees’ last witness, but for purposes of the record counsel stipulated and the court approved that the motion would be considered to have been made at the close of appellees’ case.

      . The original complaint in this case was filed within several days of Mr. and Mrs. Mas’s realization that they had been watched through the mirrors, quite some time before they moved to Park Ridge, Illinois. Because the district court’s jurisdiction is not affected by actions of the parties subsequent to the commencement of the suit, see C. Wright, Federal Courts 93 (1970), page 1400 supra, the testimony concerning Mr. and Mrs. Mas’s moves after that time is not determinative of the issue of diverse citizenship, though it is of interest insofar as it supports their lack of intent to remain permanently in Louisiana.


author: PER CURIAM:

text:
    John J. BLAKE, Petitioner-Appellant, v. UNITED STATES of America et al., Respondents-Appellees.
    No. 73-3345
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 28, 1974.
    John J. Blake, pro se.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., D. Frank Winkles, Asst. U. S. Atty., Tampa, Fla., for respondents-ap-pellees.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

      Rule 18, 5 Cir.; see Isbell Enterprises, Ine. v. Citizens Casualty Company of New York et al., 5 Cir 1970, 431 F.2d 409, Part I.

   PER CURIAM:

The denial of the appellant’s motion to vacate the sentence is affirmed, and we adopt the thorough opinion of the district court which accompanied that denial. It is apparent from a careful reading of the record and the transcript of the appellant’s probation revocation hearing that probation was revoked only after a full, fair, and impartial hearing at which Blake was represented by counsel. Without deciding whether the decision of the Supreme Court in Gagnon v. Scarpelli, 1973, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, should be applied retroactively, we are convinced by our examination of the record and the transcript that the requirements of that decision were fully met by the hearing held by the district court here.


text:
    Millard Dean CARR, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 73-2890
    Summary Calendar.*
    United States Court of Appeals, Fifth Circuit.
    March 1, 1974.
    Millard Dean Carr, pro se.
    John L. Hill, Atty. Gen., Austin, Tex., for respondent-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.
   PER CURIAM:

Carr was found guilty in a Texas state jury trial of assault with intent to rape. The Texas Court of Criminal Appeals affirmed, 475 S.W.2d 755 (1972), appeal dismissed and cert. denied, 409 U.S. 1099, 93 S.Ct. 919, 34 L.Ed.2d 682. Carr appeals the district court’s denial of his application for habeas corpus. The issues before us have been considered by the state court on direct appeal and in collateral proceedings. The district court had before it the trial transcript and the opinion of the Court of Criminal Appeals, and adopted that opinion in lieu of holding an evidentiary hearing. We have carefully reviewed the entire record and are satisfied that the issues raised are without merit.

Affirmed.


text:
    Chester Allen PALMER, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellee.
    No. 73-3192.
    United States Court of Appeals, Fifth Circuit.
    March 6, 1974.
    Chester Allen Palmer, pro se.
    Joel D. Rosenblatt, Asst. Atty. Gen., Miami, Fla., for respondent-appellee.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.
   PER CURIAM:

The order of the District Court in this cause, dismissing the Petitioner’s’ fourth petition for the writ of habeas corpus for failure to exhaust state remedies is

Affirmed.

      . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s Local Rule 9(c)(2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5 Cir., 1969, 412 F.2d 981.


text:
    HOME TELEPHONE COMPANY, Plaintiff-Appellee, v. Lon DARLEY and Rex Darley, Defendants-Appellants.
    No. 73-1993.
    United States Court of Appeals, Fifth Circuit.
    March 6, 1974.
    Rehearing Denied April 16, 1974.
    Jef Feibelman, H. L. Feibelman, Memphis, Tenn., for defendants-appellants.
    Robert H. Weaver, J. Kane Ditto, C. Alton Phillips, Jackson, Miss., for plaintiff-appellee.
    Before COLEMAN, CLARK and GEE, Circuit Judges.
   PER CURIAM:

The judgment appealed from is affirmed on the basis of the memorandum opinion of the District Court, 355 F. Supp. 992 (N.D.Miss., 1973).

Affirmed.


author: KUNZIG, Judge:

text:
    William Howard PAYNE and Elizabeth Payne v. The UNITED STATES.
    No. 281-72.
    United States Court of Claims.
    Jan. 23, 1974.
    Charles E. Robbins, Washington, D. C. , for plaintiffs; William H. Payne, Washington, D. C., attorney of record.
    Charles E. Auslander, Jr., Washington, D. C., with whom was Asst. Atty. Gen. Scott P. Crampton, for defendant; Gilbert E. Andrews, Jr., and Joseph Kov-ner, Washington, D. C., of counsel.
    Before DAVIS, KASHIWA and KUN-ZIG, Judges.

      . The Tenth Circuit Court of Appeals reached a contrary result in United States v. Behle, 316 F.2d 134 (1963). That case, however, involved the interplay of section 1301 and the Code provisions governing charitable and medical deductions, and therefore is distinguishable. Moreover, for purposes of the present case, we choose to follow the reasoning of our own decision in Wilkinson.

   KUNZIG, Judge:

This is a suit for the recovery of $15,-486.60 in federal income tax paid for the year 1966, plus interest on that amount. The dispute before us involves the relationship between the net-operating-loss carryback provision of Internal Revenue Code section 172 and the income-averaging provision of former section 1301. In our opinion, plaintiffs may not create a double tax benefit by combining the operations of these two relief provisions. Consequently, we hold for the Government.

None of the facts is controverted. In 1966, plaintiff William Payne received $713,625 in payment for legal services rendered for the period January 1, 1948 to April 21, 1966, in connection with the claims of the Oklahoma Cheyenne Arapaho Tribes of Indians against the United States Government. In computing their joint tax return for 1966, Mr. Payne and his wife elected to take advantage of the original version of section 1301 of the 1954 Internal Revenue Code, now repealed. This statute provided that the tax on the lump-sum payment should not exceed what the aggregate tax on that amount would have been if it were earned ratably over the 220-month period of employment. In effect, taxation at a rate more favorable to the taxpayer was made possible by “averaging” the income over the period it was earned.

The “spread back” of income yielded a monthly rate of compensation of $3,243.-75. Thus, by using former section 1301, plaintiffs saved approximately $220,000 in taxes on their 1966 income.

The present controversy, however, derives from plaintiffs’ effort to save more. In 1967 and 1968, plaintiffs reported net operating losses of over $31,000 and $22,000, respectively. On June 16, 1969, they filed a claim for refund of $15,486.80 for an alleged overpayment of 1966 taxes. This claim was based upon plaintiffs’ attempt to amend their section 1301 computation of the 1966 tax liability by using Code section 172 to “carry back” net-operating-loss deductions from 1967 and 1968, and applying them against the section 1301 allocations of income for 1964 and 1965. Apart from the 1301 allocations, 1964 and 1965 were themselves net-loss years.

The Internal Revenue Service rejected this claim on the ground that former section 1301 did not actually “shift” income from the year of receipt into prior tax years, but only affected the rate of tax applicable in the year of receipt, and that a net-operating-loss carryback could therefore not be deducted from section 1301 income allocated to such prior years. Plaintiffs here challenge that determination. While a number of judicial decisions on related issues exist, this appears to be a case of first impression.

No dispute exists here as to plaintiffs’ qualification to utilize former section 1301 for the 1966 lump-sum payment or as to the existence of net operating losses in 1967 and 1968. The controversy before us, then, turns on the question of whether the section 1301 computation of tax liability shifts to earlier years income against which net-operating-loss carrybacks can be deducted. We hold that it does not.

As has been demonstrated in the statement of facts above, the purpose of former section 1301 was to ease the abnormal tax burden created by a lump-sum receipt or accrual of long-term compensation by allocating such “bunched” income over the period in which it was earned. Wilkinson v. United States, 304 F.2d 469, 157 Ct.Cl. 847 (1962). In interpreting section 1301 and its companion provisions, the Internal Revenue Service has emphasized that “these sections have no effect on the income tax liability for prior years; they simply provide a special method of computing the amount of tax for the year of receipt or accrual.” Treas.Reg. § 1.1301-1 (1959).

Consistent with this view, this court has ruled that the predecessor statute to section 1301, in allocating earnings to prior years for purpose of tax “averaging,” does not reduce in the year of accrual the amount of actual income against which charitable deductions may be taken. Wilkinson v. United States, supra, 304 F.2d at 471, 157 Ct.Cl. at 853. The “spread back” of income is, thus, only a conceptual one for a specific purpose; it effects no redistribution of funds in an accounting sense. It represents a one-year, one-shot mathematical computation which may not be manipulated to maximize deduction benefits of subsequent years.

A similar result was reached by the Tax Court in a case involving the interplay of the predecessor statutes to sections 1301 and 172. Albert G. Redpath, 19 T.C. 470 (1952). The court there held at 473:

Section [1301] merely limits the tax in the year of income or the year of receipt, it does not provide for the shifting of income or the recomputation of tax liability for other years. * * * Section [1301] is concerned with, and limits, the recomputation of tax while section [172] deals with the computation of net income, or more specifically, with net operating loss deductions.

See Annot., 29 A.L.R.2d 592, 625 (1953).

We believe these authorities govern the present ease. Because former section 1301 did not actually shift income to prior tax years, net-operating-loss deductions could not be carried back to years which were already loss years. Plainly put, section 1301 and the carry-back provisions of section 172 simply were not meant to mix with one another.

In the face of this reasoning, plaintiffs at oral argument brought forth Treasury Regulation 1.1301-2(d) (2) (ii) (1959), which they asserted allows them to effect the net-operating-loss car-ryback in question. We find this view untenable. As made clear by the explanatory illustration in subsection 2(d)(3), which issued contemporaneously with the section here in question, the obfuscated language of regulation 1.1301-2(d) (2) (ii) covered only net operating loss which preexisted the 1301 computation, not a carryback of future net losses. See Treas.Reg. § 1.1301-2(d)(3) (1959). Thus, the regulation on which plaintiffs rely here has no relevance to the present facts.

Because both former section 1301 and section 172 are relief provisions, plaintiffs must clearly prove their qualification for these statutes’ benefits. United States v. Olympic Radio & Television, 349 U.S. 232, 235, 75 S.Ct. 733, 99 L.Ed. 1024 (1955); Breen v. Commissioner of Internal Revenue, 328 F.2d 58, 62 (8th Cir. 1964). In their reliance on Treasury Regulation 1.1301-2(d) (2)(ii), plaintiffs have failed to carry this burden.

Plaintiffs’ interpretation of the regulation would fly in the face of the broader rule of Treasury Regulation 1.1301-1 that the 1301 allocation not be used as a tool to reopen the computation of prior tax years. Moreover, plaintiffs’ reading of the subject regulation is irreconeilable with the Wilkinson and Redpath decisions, which we follow.

Plaintiffs’ final contention is that denial of the attempted net-operating-loss deduction here would put plaintiffs in a position inferior to that of taxpayers who received the same amount of income ratably over the period of employment. The argument is groundless. A man receiving $713,625 in one year is different from a man receiving the same amount over eighteen years. Plaintiffs have already reaped the full bounty of Congress’ grace through their election of the 1301 income averaging option. To allow the compounding of this benefit by linking it to the net-operating-loss car-ryback deduction would be to accord a windfall not contemplated by Congress. We hardly consider plaintiffs penalized by the reduction of the 1966 tax liability by over $220,000 through income averaging. In summary, we find all of plaintiffs’ arguments to be without merit.

Accordingly, defendant’s motion for summary judgment is granted; plaintiffs’ cross motion for summary judgment is denied; and the petition is dismissed.

      . “§ 1301. Compensation from an employment

      “(a) ... If an individual or partnership—
      “(1) engages in an employment as defined in subsection (b) ; and
      “(2) the employment covers a period of 36 months or more (from the beginning to the completion of such employment) ; and
      “(3) the gross compensation from the employment received or accrued in the taxable year of the individual or partnership is not less than 80 percent of the total compensation from such employment,
      “then the tax attributable to any part of the compensation which is included in the gross income of any individual shall not be greater than the aggregate of the taxes attributable to such part had it been included in the gross income of such individual ratably over that part of the period which precedes the date of such receipt or accrual.”
      The Revenue Act of 1964, Pub.L. 88-272 Title II, § 232(a), 78 Stat. 106, amended the income-averaging provisions for taxable years beginning after 1963. Taxpayers who received compensation after 1963 for employment commenced before February 6, 1963, however, could still elect to use the 1954 income-averaging provision.

      . “§ 172. Net operating loss deduction.

      “(a) Deduction allowed. — There shall be allowed as a deduction for the taxable year an amount equal to the aggregate of (1) the net operating loss carryovers to such year, plus
      (2) the net operating loss carrybacks to such year. For purposes of this subtitle, the term ‘net operating loss deduction’ means the deduction allowed by this subsection.
      “(b) Net operating loss carrybacks and carryovers.—
      “(1) Years to which loss may be carried.—
      “ (A) (i) Except as provided in clause (ii) and in subparagraphs (D) and (E), a net operating loss for any taxable year ending after December 31, 1957, shall be a net operating loss carryback to each of the 3 taxable years preceding the taxable year of such loss.
      >H * * * *
      “(2) Amount of carrybacks and carryovers. — Except as provided in subsections (i) and (j), the entire amount of the net operating loss for any taxable year (hereinafter in this section referred to as the ‘loss year’) shall be carried to the earliest of the taxable years to which (by reason of paragraph (1)) such loss may be carried. The portion of such loss which shall be carried to each of the other taxable years shall be the excess, if any, of the amount of such loss over the sum of the taxable income for each of the prior taxable years to which such loss may be carried. * * *”

      . “In computing the tax attributable to the compensation from an employment under this paragraph for any taxable year to or from which compensation is allocated, the effect of amounts of compensation allocated to any taxable year (or from the current taxable year) with respect to a net operating loss carryback or carryover or a capital loss carryover, shall be taken into account. Moreover, in determining the amount of tax attributable to such compensation, a computation shall also be made for any taxable year to which no amount of compensation is allocated but which is affected by a net operating loss carryback or carryover or by a capital loss carryover determined by reference to a taxable year to which amounts are so allocated and which net operating loss carryback or carryover or capital loss carryover is reduced or increased by such amounts so allocated. See subparagraph (3) (iv) (d) and (e) of this paragraph.”