author: AINSWORTH, Circuit Judge:

text:
    Joseph V. MALINAUSKAS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-1256.
    United States Court of Appeals, Fifth Circuit.
    Dec. 19, 1974.

      Gregory A. Presnell, Orlando, Fla. (Court-appointed), for petitioner-appellant.
    Jeffry Jontz, Robert Leventhal, Asst. U. S. Atty., Orlando, Fla., for defendant-appellee.
    Before BROWN, Chief Judge, and AINSWORTH and DYER, Circuit Judges.
   AINSWORTH, Circuit Judge:

Joseph V. Malinauskas, appellant, unsuccessfully sought relief in the District Court under 28 U.S.C. § 2255, contending that his prior guilty plea of having violated the federal bank robbery statute, 18 U.S.C. § 2113, was invalid upon essentially two grounds: (1) that he was mentally incompetent to plead guilty; and (2) that he was under the influence of drugs at the time of the plea.

This appeal presents a question of law which has not previously been answered by this Court. We must determine the proper criteria for assessing the degree of mental competence required, of an accused who pleads guilty, to satisfy the demands of voluntariness under Rule 11, Fed.R.Crim.P. The contention of appellant is that competency to plead guilty voluntarily is of a higher degree than competency to stand trial. The District Court in its order denying relief obviously equated the two standards. We agree and, finding no merit to petitioner’s additional contentions, affirm.

Petitioner was indicted on two counts of violations of 18 U.S.C. § 2113. On arraignment, petitioner, represented by retained counsel, entered a plea of not guilty or not guilty by reason of insanity. Subsequent to arraignment petitioner was examined by Dr. Michael Gut-man, psychiatrist, and Dr. Robert Edel-man, psychologist, who consulted with each other and then rendered written reports to petitioner’s counsel.

Dr. Gutman reported that he interviewed petitioner and evaluated him in accordance with counsel’s request. He found “no evidence of psychotic thinking or behavior.” Petitioner was “friendly and cooperative and appeared to be quite depressed over his present plight. There were strong leanings toward antisocial acting out, but there was also evidence of a very deep inner insecurity and feeling of inadequacy and lack of self-confidence and self-esteem. His intellectual functioning was very good and there was no evidence of organic deficit in his judgment. He showed a tendency toward understanding of what was right and what was wrong, but his ego control mechanisms indicate that he does not always have the ability to display control over his impulses.” Dr. Gutman concluded his report on petitioner by stating:

“I do not feel that this man is psychotic, nor does he fit either the Mc-Naughten’s [sic] Rule or the American Law Institute criteria for lack of criminal responsibility. I believe he is responsible for his acts. He is able to aid and assist counsel in his own defense.”

Dr. Edelman reported the significance of results of certain psychological evaluation tests administered to petitioner. He interpreted his behavioral pattern as “consistent with self-punitive behavior because of its inept, obvious and eventually self-defeating nature.” His diagnostic impression on the basis of behavioral observation and test responses was “dissociative reaction.”

As a result of these reports petitioner, again represented by retained counsel, withdrew his pleas on April 27, 1971 and entered a plea of guilty to Count 2 of the indictment, whereupon the Government dismissed the first count. Appellant was sentenced to thirty years’ imprisonment at the Atlanta federal penitentiary.

This section 2255 petition was subsequently filed and an evidentiary hearing granted, for which counsel was appointed to represent petitioner. Prior to the hearing, petitioner by motion requested that seven witnesses, who allegedly observed his conduct prior to his plea, be subpoenaed to testify in regard to whether or not petitioner was mentally competent to enter an intelligent and voluntary plea. Appellant contended in his motion that the testimony of each of the seven witnesses, five of whom were incarcerated convicts, would corroborate his contention that his plea of guilty was the product of a mental disorder which created an irresistible impulse to suffer self-punitive action, that he had suicidal tendencies and that he was under the influence of drugs at the time that he changed his plea. The District Court permitted the subpoenaing of Edsel Griffin, a prisoner who had been incarcerated in the same cell block with petitioner, and the prison chaplain, James Bryan, who had ministered to petitioner prior to the entry of his plea, but denied the motion in respect to the additional five potential witnesses.

At the evidentiary hearing the District Court heard testimony of petitioner, his former retained counsel, the two witnesses subpoenaed at the request of petitioner, Doctors Gutman and Edel-man, who had reexamined petitioner prior to the hearing, and Dr. Robert James MacMurray, psychiatrist, whom the judge had appointed to examine petitioner several days before the hearing.

Although there was testimony to the effect that petitioner was depressed, emotional, neurotic and tending toward self-punitive behavior, there is nothing in the evidence which would have caused the district judge to conclude that petitioner was mentally incompetent to intelligently and voluntarily plead guilty. To the contrary, Dr. Gutman, who had examined petitioner prior to his plea and again before the evidentiary hearing, was of the opinion that petitioner was mentally competent to stand trial, was aware of and understood the charges against him and capable of assisting counsel in his own defense. Dr. Mae-Murray’s testimony corroborated that of Dr. Gutman. While Dr. Edelman expressed some doubt as to petitioner’s ability to plead guilty, he admitted that had he been aware of petitioner’s social history and involvement in prior crimes, he would have reconsidered his diagnosis.

The standard for mental competence of an accused to voluntarily plead guilty.

Counsel for appellant expressly admits that the district judge complied with all the “technical requirements of Rule 11,” but contends that a different medical-legal standard should apply to the volun-tariness of a guilty plea and that a defendant’s competence to stand trial is not determinative of the issue.

Based on the evidence adduced at the hearing, the District Court found “that the petitioner was competent to understand the nature of the proceedings against him and to assist his counsel in those proceedings at the time of the change of plea on April 27, 1971.” We have no difficulty in finding that the conclusion by the District Court is abundantly supported by both the medical and lay evidence and the record itself at the time of change of plea. This, however, does not fully answer appellant’s contention. Admittedly, the District Court applied the Supreme Court’s standard for judging an individual’s competency to stand trial, set out in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960), in the following language: “[T]he test must be whether [the accused] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.”

While appellant concedes that the test for competency to enter a guilty plea has not been precisely stated by the Federal Courts, he nevertheless contends that the standard of competency should be higher for the entry of a plea than that applied for a person to stand trial. In the case of In Re Williams, D. D. C. 1958, 165 F.Supp. 879, 881, cited by appellant, the psychiatric testimony established that petitioner did not completely understand the nature of a guilty plea or the nature of the punishment to be meted out. The court said: “The issues involved in the plea of guilty and the consequences which attach to a plea require a greater degree of awareness than the competency to stand trial.” The D. C. Circuit quoted the Williams test in McCoy v. United States, 1966, 124 U.S.App.D.C. 177, 363 F.2d 306, 307 n. 3. There the court, in addressing itself to the discretion vested in the court to refuse to accept a plea of guilty voluntarily made with an understanding of the nature of the charge, cautioned that “the plea should not be refused without good reason” and cited the Williams language for comparison. Language from United States v. Kincaid, 4 Cir., 1966, 362 F.2d 939, also relied on by appellant, is merely suggestive of the need of expansion of judicial inquiry beyond the requirements of Rule 11. The rule, commented the court, “requires something more than conclusionary questions phrased in the language of the rule. It contemplates such an inquiry as will develop the underlying facts from which the court will draw its own conclusion.” Id. at 941. This observation by the court in Kincaid is in no way inconsistent with the District Court’s application of the express and implied requisites of Rule 11. At the time of the entry of the guilty plea, defense counsel informed the' court, in Malinauskas’ presence, of the psychiatric and psychological examinations conducted and the results of those examinations which militated against the plea of insanity. Thereafter, the court in an effort to determine if defendant acquiesced in counsel’s advice ascertained from defendant that he had been represented by his attorney since shortly after apprehension, that he had had opportunity to consult with counsel during that time and that he was satisfied with the representation given him.

In arguing for a higher standard of competence for a voluntary guilty plea, appellant refers us to certain language in Johnson v. United States, 5 Cir., 1965, 344 F.2d 401, and White v. United States, 5 Cir., 1972, 470 F.2d 727. In White we remanded for the purpose of having the District Court order an examination of petitioner under 18 U.S.C. § 4244. We said, “We have no doubt that the level of competency required to enter a plea must he at least as high as that required to assist in defense, which is the standard of § 4244.” 470 F.2d at 728. (Emphasis added.) In Johnson we noted that “Whereas ‘insanity’ might be necessary for an acquittal, a lesser mental disorder might prevent a defendant from standing trial, and a still lesser degree might vitiate a waiver of counsel.” 344 F.2d 401, 406 n. 13. (Emphasis added.) Neither the language in White nor in Johnson can serve as a predicate for holding, as appellant urges us to, that the competency required of an accused to enter a voluntary plea of guilty is of a higher degree than the competency to stand trial. We agree with the Tenth Circuit that the test of mental competency at the time of trial or the entering of a plea in a criminal case is the same. See Dusky v. United States, 362 U.S. 402, 403, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960); Wolf v. United States, 10 Cir., 1970, 430 F.2d 443, 444; Crail v. United States, 10 Cir., 1970, 430 F.2d 459, 460; Wolcott v. United States, 10 Cir., 1969, 407 F.2d 1149, 1151. See also United States v. Webb, 1 Cir., 1970, 433 F.2d 400.

The District Court fully complied with Rule 11.

Appellant admits that the court technically complied with Rule 11, but inconsistently argues that full compliance was not made. We are aware of course that when constitutional rights are at issue, mere formalistic recitations regarding the voluntariness of a guilty plea will not suffice. See, e. g., Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); United States v. Anderson, 5 Cir., 1972, 468 F.2d 440. This, however, was not the ease here. At the change-of-plea proceedings the court went to great lengths to ascertain that the accused was pleading guilty of his own volition. The record indicates no confusion or lack of awareness on the part of petitioner when he elected to change his plea. Numerous and repetitive questions directed to him by the court for the purpose of determining petitioner’s understanding of the proceedings, his voluntariness in entering a guilty plea and the consequences of that plea, were answered unhesitatingly and intelligently. The basis for appellant’s contention appears to be that the court failed to inquire specifically into the competency of defendant to plead guilty. Considering, however, that the court had knowledge that the medical experts had reported defendant mentally competent and that defendant’s withdrawal of his insanity plea was based on those psychiatric evaluations, we are at a loss to discern what more was expected, or could have been learned, from further judicial inquiry in this regard. Understandably, under certain circumstances not present here, further investigation of competence is required to determine the voluntariness of the plea. If, for example, in the present case, after having pled not guilty by reason of insanity plaintiff had withdrawn that plea without obvious or declared justification, it would have been incumbent on the court to make further inquiries and possibly provide for psychological or psychiatric evaluation. But here that evaluation of competency had preceded the plea change. Kincaid, supra, strongly relied on by petitioner, is unlike the present case since Kincaid for the first time requested psychiatric help at the plea proceedings. Such a suggestion might have caused the District Court to require investigation and evaluation into Kincaid’s competence. The court’s failure in this regard, however, was remedied by remand for an eviden-tiary hearing. In the instant case there was not only prior psychiatric evaluation which obviously motivated the change of plea, but defendant was also accorded an evidentiary hearing which merely confirmed what had already been established — that defendant was competent to plead guilty. Moreover, the district judge and petitioner’s retained counsel, who were present at both the plea-change proceedings and the evidentiary hearing, had the advantage of observing petitioner’s demeanor and assessing from a layman’s viewpoint his mental alertness and awareness of the proceedings. Counsel Barnett, who had met with petitioner on numerous occasions prior to his conviction, observed no abnormal behavior by petitioner on the day that petitioner changed his plea.

The dominant purpose of the Rule 11 inquiry is the ascertainment by the court of the voluntary character of the guilty plea. The inquiries designed to rule out threat, coercion and plea bargaining, as improper motivations for the plea, or to establish the accused’s awareness of the rights he will forfeit and the maximum sentence to which he may be subjected, are all means designed to assure the court that the plea is in fact voluntary. Mental competence to plead guilty is another such factor. If the court is not convinced of the competency of a defendant there are methods for resolving the doubt by psychological evaluation. Here, not only was the court repeatedly assured of defendant’s voluntariness, it also had the benefit of the psychological diagnosis of competence. “The voluntariness of [an accused’s] plea can be determined only by considering all of the relevant circumstances surrounding it”, Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970), and “[t]he nature of the inquiry required by Rule 11 must necessarily vary from case to case.” McCarthy v. United States, 394 U.S. 459, 467 n. 20, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969). We are convinced that the inquiry by the court on the issue of voluntariness fully complied with the requirements of Rule 11.

There was no violation of the attorney-client privilege.

In his motion to vacate judgment and conviction petitioner put into issue the question of his mental competency at the time of the guilty plea. Mr. Barnett, petitioner’s prior retained counsel, who had consulted with petitioner before the change-of-plea proceedings and who appeared with him in court on that day, was called by the Government as a witness. Counsel testified that from his observations and discussions with petitioner he could find no indication that he was incompetent or under the influence of drugs. Our recent decision in Clanton v. United States, 5 Cir., 1974, 488 F.2d 1069, disposes of petitioner’s contention that the testimony violated the attorney-client privilege.

There was no abuse of discretion by the court in denying the motion to permit issuance of writs of habeas corpus ad testificandum.

Following the evidentiary hearing, petitioner filed a motion for rehearing alleging that the court abused its discretion in refusing to issue subpoenas to four of the five incarcerated felons requested as witnesses to substantiate his contention that he was in a drugged condition at the time of his plea. As already noted, one of the five witnesses, Edsel Griffin, was permitted to testify. Griffin corroborated petitioner’s testimony, that petitioner was under the influence of drugs on the day in question. The court found the testimony of both petitioner and Griffin unreliable and incredible. On motion for rehearing counsel for petitioner was permitted to file affidavits of each of the proposed witnesses in regard to the testimony which they would expect to give. The district judge found that the content of the affidavits were merely cumulative of that already heard and disbelieved from the witness Griffin, and inconsistent with the credible evidence already adduced and with his own knowledge as a result of presiding at the time that petitioner pled guilty. Consequently, he denied the motion for rehearing. Appellant admits that it is within the court’s discretion whether to grant a request for issuance of writs of habeas corpus ad testifican-dum. Goldsby v. United States, 160 U.S. 70, 16 S.Ct. 216, 40 L.Ed. 343 (1895). We find no abuse of discretion here.

Affirmed.

      . Appellant contends on appeal that the court erred:
      (1) In failing to fully comply with Rule 11, thereby constituting automatic prejudice and requiring that petitioner be allowed to re-plead.
      (2) In concluding that petitioner was mentally completed to idead guilty.
      (3) In concluding that petitioner’s mental capacity to plead guilty was not impaired by drug usage or influence.
      (4) In refusing to grant writs of habeas corpus ad testificandum and by its denial of petitioner’s motion for rehearing respecting the issue of drug usage.
      (5) In overruling petitioner’s objections to the testimony of prior retained counsel.

      . Count II of tlie indictment charged that “On or about March 18, 1971, at Orlando, Florida, in the Middle District of Florida, Joseph V. Malinauskas wilfully and unlawfully and with felonious intent, did take by force and violence and by intimidation, from the person and i>resence of Ralph C. Haslar and Lillie E. Tompkins, $8,704.00 in money and other property consisting of uncancelled checks, belonging to and in the care, custody, control management and possession of the American Federal Savings and Loan Association, Azalea Park Branch, the deposits of which were then insured by the Federal Savings and Loan Insurance Corporation, and Joseph Y. Malinauskas in avoiding or attempting to avoid apprehension for the commission of the aforesaid acts, did force Ralph C. Haslar and Lillie E. Tompkins to accompany him without their consent; in violation of Title 18, United States Code, Section 2113(e).”

      . Dr. MacMurray testified that lie had examined petitioner and that he had read Dr. Gutman’s and Dr. Edelman’s prior evaluation. It was Dr. MacMurray’s opinion that at the time petitioner pled guilty he was mentally competent to so plead and that his plea was intelligently and voluntarily made. Dr. MacMurray was told by petitioner that he had been sentenced to thirty years in Atlanta, and realizing the type of individual he would face in Atlanta, something he did not know he was in for, he decided to put in his petition for a new trial. Dr. Gutman described petitioner as suffering from a “certain chronic character and behavior disorder” and possessing impulses toward self-punitive action; it was his opinion that these elements would not preclude a person guilty of an offense from competently, voluntarily and intelligently entering a plea of guilty to that offense. Dr. Gutman reiterated that it was his opinion prior to petitioner’s change of plea that petitioner was mentally competent to stand trial, was aware of and understood the charges against him and capable of assisting counsel in his own defense, and that there was no change in his former position or findings. Dr. Edelman testified that he had administered three psychological tests to petitioner. Ilis evaluation of the tests was that petitioner “was extremely depressed. I had some doubts as to his ability to render appropriate plea because of these elements.” lie concluded from the tests that petitioner had a hysterical personality, which he explained as a neurotic condition, a disassociated type. If Dr. Edelman had known about petitioner’s prior crimes he said it probably would have cast some doubt on the validity of his impression.
      The chaplain minister, James II. Bryan, testified that although the majority of inmates are depressed about their status in life, that petitioner’s depression was deeper than that of the average inmate. The fact that petitioner felt that he had a death sentence facing him, in the chaplain’s opinion, had an effect on petitioner. Petitioner testified that lie was under the influence of drugs at the time he changed his plea. His ex-cell-block prisoner witness, Edsel Griffin, corroborated that testimony. Mr. William Barnett, petitioner’s retained counsel, who appeared in court with him on the day of the plea change, testified that there was no indication that petitioner was incompetent to voluntarily and intelligently enter a plea of guilty on that day, or that he had been taking drugs.

      . See also Blake v. United States, 5 Cir., 1969, 407 F.2d 908, 910 (en banc); Merrill v. United States, 5 Cir., 1964, 338 F.2d 763.

      . Counsel stated:
      “Pursuant to our plea of not guilty by reason of insanity, we had Mr. Malinauskas examined by Dr. Michael Gutman, a physician specializing in psychiatry and a Diplomat in the American Board of Psychiatry and Neurology and a gentleman experienced in such matters and has testified in this Court and qualified as an expert here and also under his direction, Dr. Robert Edelman, who is a psychologist, examined Mr. Malinauskas. Both rendered reports to our office and both have consulted with each other and it is their opinion that Mr. Malinauskas is responsible for his acts and is able to aid and assist counsel in his own defense and they were advised and understood the various tests used by this Court, the lay tests and the more familiar tests and Mr. Malinaus-kas does not come under any of the tests that we are speaking of. This has been gone into — I mentioned this to the Court since it was raised to the Court as an issue, we wish to withdraw both pleas of not guilty by reason of insanity and enter a plea of guilty on Count Two.”

      . See Machirbroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Bryan v. United States, 5 Cir., 1974, 492 F.2d 775 (en banc).

      . See McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).

      . See Marvel v. United States, 380 U.S. 262, 85 S.Ct. 953, 13 L.Ed.2d 960 (1965); United States v. Blair, 5 Cir., 1972, 470 F.2d 331.

      . See Johnson v. United States, 5 Cir., 1965, 344 F.2d 401.

      . 18 U.S.C. § 4244.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Howard J. ST. JULES, Petitioner-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellant.
    No. 74-2010.
    United States Court of Appeals, Fifth Circuit.
    Dec. 20, 1974.
    John L. Hill, Atty. Gen., Dunklin Sullivan, Asst. Atty. Gen., Austin, Tex., for respondent-appellant.
    James H. Randals, Staff Counsel for Inmates, Huntsville, Tex., for petitioner-appellee.
    Before BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   PER CURIAM:

Our most recent case dealing with the constitutional impact of trying a defendant while clothed in prison garb is Williams v. Estelle [1974], 500 F.2d 206. The controlling law on that subject requires no further elaboration.

Howard James St. Jules is a Texas prisoner, serving a sentence for burglary with enhanced punishment, Article 63, Vernon’s Ann.Texas Penal Code. See St. Jules v. State, Tex.Civ.App., 438 S.W.2d 568 (1969), in which the issue presently to be discussed was not raised.

On application for the writ of habeas corpus, the District Court, after an evi-dentiary hearing, found that St. Jules was tried while attired in prison clothes and that under the circumstances the error was not harmless. The Attorney General of Texas has appealed.

Upon the appellate record, briefs, and oral argument we are of the opinion that the findings of the District Court are not susceptible to “clearly erroneous” condemnation. The judgment must, in this respect, be affirmed.

We find it unnecessary to reach, or intimate any opinion, as to the voluntary or involuntary character of a purported confession which the Texas Court of Criminal Appeals found to be voluntary and which the District Court found otherwise. If the State of Texas elects to retry St. Jules, as it has a right to do within a reasonable time, this issue can be resolved on a fresh, and possibly more complete, record.

Affirmed.


text:
    PENN FISHING TACKLE MFG. CO., Plaintiff-Appellant, v. Paul PENCE and Ken A. MacPike, Individually and d/b/a Penco Tackle Company, Defendants-Appellees.
    No. 74-1182.
    United States Court of Appeals, Fifth Circuit.
    Dec. 20, 1974.
    Lynn C. Higby, Panama City, Fla., Zachary T. Wobensmith, II, Zachary T. Wobensmith, III, Philadelphia, Pa., for plaintiff-appellant.
    Joe J. Harrell, Norton T. Bond, Pensacola, Fla., for defendants-appellees.
    Before BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges.
   PER CURIAM:

Plaintiff-appellee brought suit alleging that defendant’s use of the name “Penco” on its fishing equipment infringed plaintiff’s rights in its trademark “Penn.” After a non-jury trial, the district court found no infringement. We affirm.

Our inquiry is limited to whether the lower court’s finding is “clearly erroneous.” Rule 52(a) Federal Rules of Civil Procedure. The trial court applied the proper legal test, whether úse of the allegedly infringing mark is likely to confuse consumers as to the source of the product. American Foods, Inc. v. Golden Flake, Inc., 312 F.2d 619 (5th Cir. 1963). The evidence consisted largely of conflicting testimony by each party’s witnesses as to whether such confusion was likely. The district judge rested his finding of no infringement not only on his evaluation of this testimony, but also on the lack of direct competition between the parties and the visual dissimilarity of the marks. We cannot say he was clearly erroneous in so ruling, and the judgment is therefore

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. 55 GAMBLING DEVICES and Nick Putch, d/b/a Southern Music & Cigarette Company, Defendant-Appellant.
    No. 74-1117.
    United States Court of Appeals, Fifth Circuit.
    Dec. 23, 1974.
    See also D.C., 353 F.Supp. 66.
    Herman F. Soekrider, Jr., Shreveport, La., for defendant-appellant.
    Donald E. Walter, U. S. Atty., L. Edwin Greer, Asst. U. S. Atty., Shreveport, La., Fred Bennett, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.
    Before GEWIN, AINSWORTH and GEE, Circuit Judges.
   PER CURIAM:

This case involves the forfeiture of 55 gambling devices seized by the Federal Bureau of Investigation from the appellant Nick Putch. The use of the gambling devices was held to be in violation of 15 U.S.C. § 1173(a)(3) and they were ultimately condemned to the government.

The appellant’s sole contention on appeal is that he had no knowledge of the requirement in 15 U.S.C. § 1173(a)(3) to register with the attorney general before engaging in the gambling device business. Our examination of the record convinces us that even if knowledge on the part of the appellant was necessary to validate the forfeiture, there was sufficient evidence to sustain the comprehensive statement of the district court that it found no support for any of appellant’s defenses. Testimony was taken specifically for the purpose of establishing whether the appellant had knowledge of the registration requirements. The testimony revealed that appellant had been engaged in the gambling device business for many years, and that in the course of his business he received literature from companies advertising gambling devices. Samples of this literature, which included warnings about registration requirements, were introduced in evidence. It is clear that the district court could have fairly inferred that a person engaging in the gambling device business over an extended period of time, and who was regularly receiving advertising circulars like the kind shown to include warnings, had knowledge of the registration requirements of the statute.

Affirmed.


author: CLARK, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Edward COOK, Defendant-Appellant.
    No. 74-1164.
    United States Court of Appeals, Fifth Circuit.
    Dec. 20, 1974.
    Rehearing and Rehearing En Banc Denied Feb. 13, 1975.

      Julius Lucius Echeles, Chicago, 111., for defendant-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., Scott P. Cramp-ton, Asst. Atty. Gen., Tax Div., Meyer Rothwacks, Chief, Appellate Sec., John P. Burke, Murray S. Horwitz, Attys., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before COLEMAN, CLARK and RO-NEY, Circuit Judges.
   CLARK, Circuit Judge:

Edward Cook appeals from his jury conviction on five counts of willfully evading income taxes from 1966 through 1970 in violation of 26 U.S.C. § 7201. Through the diligent efforts of new counsel in this court, he advances six grounds for reversal, the last four of which, since not properly presented below, must constitute plain error to be reviewable here. First, he contends that the government’s evidence was insufficient to overcome his “cash hoard” defense. Second, he argues that the evidence failed to establish willful evasion. His third, fourth and fifth grounds assign, individually and cumulatively, three instances of prosecutorial conduct: unsupported attempts to impeach key defense witnesses during cross examination, closing argument use of a court-excluded statement by defendant, and closing argument statements that the defendant “was lying” and failed to testify. His final plain error contention relates to a lesser-included-offense instruction. We affirm.

Following the expenditures method, the government sought to show that Cook, who was unemployed, had an income of approximately 13,000 dollars from nontaxable sources for the five years; had not filed returns for any of the years; yet, had spent approximately 150,000 dollars. See United States v. Penosi, 452 F.2d 217, 220 (5th Cir. 1971). Neither Cook’s defense below nor the present appeal focuses on these matters. Rather his defense was that prior to January 1, 1966, he had accumulated cash and other assets of a value in excess of 150,000 dollars, which were the source of the funds spent. See, e. g., United States v. Newman, 468 F.2d 791, 794 (5th Cir. 1972).

To address the sufficiency question, we must record the evidence presented at trial in some detail. The Government’s proof established that Cook had not filed income tax returns for any of the years in question and that treasury agents had made an exhaustive search which failed to discover any assets held by defendant prior to January 1, 1966, other than two cars valued at 5,850 dollars. This conclusion was supported by evidence that Cook had been infrequently employed prior to 1966 and that, during the prosecution years, he had “financed” several purchases. It was stipulated that the defendant was totally unemployed and earned no income whatsoever from 1944-1948, 1951-1960 and 1964-1965, and that he received no gifts or bequests nor inheritance from his mother at her death in 1967. His former wife, Geraldine, whom he married in February, 1961; separated from in 1962; reunited with in 1965 and divorced in May 1966, testified, inter alia, that defendant did not have a job in 1961 when they were married and that she did not know if or when he got his first job after that. She had to work as a secretary for a short time during the marriage. She had no knowledge that defendant had a safety deposit box, or any jewelry, or a coin collection. In addition, she testified that not only had they borrowed money from the family when they were short of cash, but they had also financed the purchase of a 1965 Oldsmobile. F.B.I. Special Agent Guil-foile testified that he had known Cook’s current wife, Joan, even before 1966, butdiad never known her to be gainfully employed. By Cook’s own statement, his employment record prior to 1951 had been sporadic and insubstantial. In fact, his only sustained employment was from 1962-1964 when he received a salary of 250 dollars per week as an employee of a jewelry company. Also tending to negate the existence of pre-1966 assets was the evidence that Cook had to obtain credit for several purchases during the prosecution years. In 1967 he purchased a 59,500 dollar house and assumed both a first and second mortgage. He also financed part of the purchase price of a 12,566 dollar Donzi Boat and a new Oldsmobile automobile.

Other evidence established abundant facts about Cook’s financial activities and resources and numerous inconsistencies in his personal representations about them. In August, 1969, for example, defendant told F. M. Beirne, a local police officer, that he was still under investigation by the Internal Revenue Service because of not filing an income tax return. Beirne further quoted Cook as saying his standard explanation for this was that his wife was wealthy and that since he had never held a job or earned 600 dollars annually, he was not required to file an income tax return. This statement is in direct conflict with Cook’s credit card and loan applications during the prosecution years in which he consistently represented himself to have an income of 18,000 or 20,000 dollars per year. The source of his income was variously shown as deriving from self-employed, semi-retired, or retired activity in stocks, bonds and investments, or the cosmetic business. Evidence of other business activity by the defendant during the prosecution years included Cook’s ordering of locksmith’s tools under the trade name Cook’s Key and Hobby Shop and his representation in 1967 that he was in the perfume business or had something to do with a do-nut establishment.

Cook made substantial outlays of cash in the covered period. Included were the purchase of five cars, for which he paid out cash ranging in an amount from 2065 to 3700 dollars; a 6200 dollar initial payment on the Donzi Boat, and an 18,000 dollar cash payment for a lot. In at least two of the prosecution years, Cook’s total cash payments (28,601.65 and 22,261.21 dollars) were more than double the payments for purchases he made by check.

Defendant’s proof included no documentation of his pre-1966 ownership of assets. He did, however, produce three witnesses to support his claim that substantial asset ownership accounted for his spendings in the tax period. They were Howard Brodsky, a bondsman; Ronald Hanson, a business friend; and Richard Chapman, a self-employed dealer in jewels. Brodsky’s contact with Cook was as a bail bondsman on an unrelated criminal charge. In his testimony to the jury the relationship was merely described as one requiring Cook to place collateral with Brodsky. Brod-sky testified that in 1963 and 1964 Cook had safety deposit boxes containing a gold coin collection, diamonds (including a canary diamond appraised for more than 75,000 dollars), cash, and other assets which in total value exceeded 150,000 dollars. He further stated that he took possession of these items and in 1966 and 1967 redelivered their contents to Cook. Hanson testified he had known Cook in Chicago, that in December of 1965 he had borrowed 35,000 dollars in cash from Cook to establish a wig business, and that in about February or March of 1966, when the projected venture did not materialize, he returned these funds.

Cook also presented testimony from Richard Chapman to the effect that Chapman shared offices and a telephone with one Herman Gordon, who was a wholesale diamond merchant. Chapman testified that in the summer of 1968 he witnessed a transaction in which Gordon paid Cook 85,000 dollars in cash for a large canary diamond. Inferentially, this diamond was similar to a diamond Brodsky testified he observed to be in Cook’s safety deposit box in 1963.

It is essential to affirmance to find that the jury was furnished adequate proof of the defendant’s net worth at the opening of the tax period in question. United States v. Penosi, supra; Marcus v. United States, 422 F.2d 752, 755 (5th Cir. 1970). In this case, the inferences to be drawn from the evidence of little or no income prior to 1966 and credit purchases after January 1, 1966 together with the special agent’s testimony that Cook’s net worth on January 1, 1966, the beginning of the prosecution years, was less than 6,000 dollars were opposed by the testimony of Brodsky, Hanson and Chapman. The fact that a conflict existed, however, is im-. material, because viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the record contained substantial evidence from which the jury could conclude beyond a reasonable doubt that the agent’s testimony was accurate.

Similarly a reasonably minded jury could validly draw inferences from the government’s circumstantial evidence of credit purchases accompanied by large and extensive dealings in cash, and inconsistent statements as to the sources of his finances that, beyond a reasonable doubt, Cook was living on taxable income received in the subject period upon which he willfully evaded taxation rather than on a cash hoard accumulated previously. United States v. Nazien, 504 F.2d 394 (5th Cir. 1974); United States v. Warner, 441 F.2d 821, 830 (5th Cir. 1971); United States v. McGlamory, 441 F.2d 130, 135 (5th Cir. 1971) . These permissible inferences would be sufficient to establish affirmative evasion. Spies v. United States, 317 U.S. 492, 499, 63 S.Ct. 364, 87 L.Ed. 418 (1943). See also United States v. Newman, 468 F.2d 791, 794 (5th Cir. 1972).

Cook’s remaining assignments of error are raised for the first time in this court. They were not even brought before the trial court in his post trial motions. To permit review, the plain error threshold must be crossed. See, e. g., United States v. Smith, 502 F.2d 512, 519 (5th Cir. 1974). Acknowledging this to be the standard, Cook urges it was plain error for the prosecution to imply, in its cross examination of defense witnesses Howard Brodsky and Richard Chapman, that it possessed impeaching information without thereafter offering supporting evidence when the questions were answered adversely. Cf. United States v. Constant, 501 F.2d 1284 (5th Cir. 1974). Since failure to introduce rebuttal on these points is more likely to have aided than harmed defendant, and since his counsel capitalized on the lack of such rebuttal in closing arguments, we refuse to try the issue for the first time in this court under the plain error rule.

Cook’s criticisms of the closing arguments urge that the prosecutor impermissibly utilized a statement which had been made by Cook to an IRS agent, but which had been ruled inadmissible by the court. Assuming this was error at all, the problem for treating it as plain error is that the very same statement had been admitted in evidence through Officer Beirne. If objection had been timely made and the court’s ruling had been made retroactively applicable to the IRS agent's testimony, the problem could have been clarified without prejudice. This is precisely the kind of matter that cannot qualify as plain error.

Cook further contends that the court committed plain error when it allowed the prosecutor to argue:

“Today I want to tell you, this case is not difficult to decide. It is an extremely large amount of evidence coming in here which shows that the defendant, No. 1 spent the money, made many admissions as to taxable income. Only to the Internal Revenue Service and to you does he need hide because he has a technical income, because he had a cash hoard. It is evidence on the record that such a cash hoard did not exist. He was lying and purposely and willfully evading the income tax.” (Emphasis is added)

The government asserts that the “hide” allusion in this statement was intended to point out the contrast between Cook’s admissions on loans and credit applications of income around 20,000 dollars a year and his later assertion that he didn’t earn 600 dollars a year. They also urge that the comment was meant to question the existence of defendant’s asserted cash hoard. The use of the phrase “he was lying”, while confessedly ill advised and inappropriate, is said to have been based on a permissible belief inferred from the evidence. See, e. g., United States v. Greenberg, 268 F.2d 120, 123-124 (2nd Cir. 1959).

In the abstract, the argument is clearly objectionable.

. . . [Pjrosecutors should exercise utmost restraint and caution in fashioning arguments which may tend to support the suggestion of a comment on the failure of a defendant to testify. Additionally, expressions of personal opinion as to the credibility of witnesses for the prosecution should be avoided. “It is as much his [the prosecutor] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one”.

United States v. Rhoden, 453 F.2d 598, 600 (5th Cir. 1972) quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314, 1321 (1935).

However, to establish the “hide” comment as an allusion to the defendant’s refusal to testify requires an inference which is altogether too tenuous to support plain error reversal. We note that the opening words of this sentence couple the revenue service with the trial court jury in speaking of those from whom Cook need “hide”. Since the revenue service performs an extrajudicial function of investigation, its mention tends to disassociate the tenor of the remarks from the hiding of courtroom testimony. It is entirely plausible to construe the thought intended to be conveyed as a challenge to the jury to use Cook’s own prior representations that he had income as a basis for rejecting the defense assertion that his large spend-ings came from a prior accumulation and that he had no income over 600 dollars for any of the years. This is what the trial was mainly about. The failure of defense counsel to object helps to confirm that the argument was sufficiently ambiguous to deny it classification as an error which plainly deprived defendant of any substantial right.

Whatever prejudicial effect might have obtained from the “lying” comment, was diminished both by an express disclaimer by the prosecution and by defense counsel’s use of the prosecutor’s argumentary indiscretions in an attempt to tura the “lying” remark against the prosecution. At the beginning of this closing argument, the prosecutor stated:

I want my discussion to be based on the evidence you have heard in this courtroom. As I said at the outset, what lawyers say is not evidence, no matter how important we think it is, it is not evidence and it is not properly considered by you in arriving at the verdict. It is to aid you. If your recollection of the evidence differs from what I said, follow your recollection. You are the people who are to evaluate the evidence.

While the comment was altogether improper and an objection would surely have brought corrective action, we must weigh the degree to which the prosecutor’s argument may have affected a substantial right belonging to the defendant. We conclude that the prejudicial effect was slight, while the evidence of guilt was substantial. See United States v. Rodriques, 503 F.2d 1370 (5th Cir. 1974); United States v. Rhoden, 453 F.2d 598 (5th Cir. 1972). “Without putting our imprimature on every remark made by the prosecutor, we perceive no plain error which should be noticed in the absence of objection. .” United States v. Jenkins, 442 F.2d 429, 435 (5th Cir. 1971); United States v. Scaglione, 446 F.2d 182, 188 (5th Cir. 1971).

Finally, appellant argues that misdemeanors under Section 7203 (failure to file) are not lesser included crimes under Section 7201 (willful evasion) and, thus, that the giving of a lesser-included-crime instruction was erroneous. The failure to bring the error complained of here to the attention of the trial court would bar its assignment as error under Fed.R.Crim.P. 30, unless it fell under Rule 52(b). But the instruction here involved was not error at all. The misdemeanor provisions of Section 7203 involve a willful omission of failing to file a return. The felony provisions of Section 7201 includes the broader offense of willful commission of an attempt to evade or defeat the tax. Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 1010, 13 L.Ed.2d 882 (1965); Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943). See, United States v. Bishop, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973). Cf. United States v. Bowness, 504 F.2d 391 (5th Cir. 1974).

We have carefully considered appellant’s auxiliary arguments and find them equally without merit.

Affirmed.

      . Fed.R.Crim.P. 52(b) provides: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” See C. Wright, Federal Practice and Procedure, § 856.

      . An agent of the Internal Revenue Service testified that Cook made essentially the same statement to him. Subsequent to the admission of this evidence, the Court ruled that the failure to give Coow administratively required warnings, Int.Rev.Manual § 9384.2, rendered this testimony excludable. The record reveals that at this point counsel for Cook made the deliberate strategic choice to leave this testimony in the record rather tham having it highlighted by a specific direction from the Judge that the jury should disregard it.

      . The witness Brodsky answered these questions in the negative:
      "Q. Isn’t it a fact, sir, you told them (F. 15.1. Agents) those coins were submitted to you by Martin Katz and were owned by Martin Katz?
      Q. Isn’t it a fact you also later told them you returned the gold coins not to Clarence, but John Cook?
      Q. Isn’t it a fact you told the F.B.I. agent it was returned to Clarence Cook?

        % i',t

      Q. Didn’t you tell the F.B.I. that the 27 carat diamond was owned by Martin Katz?
      The questions to and answers by the witness Chapman were:
      Q. Are you telling me as an expert in the diamond business that all diamond merchants deal exclusively in cash?
      A. I didn’t say . . . exclusively . . . I say primarily.
      * * * * *
      Q. But you are not prepared to state whether this is the custom throughout the diamond trade?
      A. I would say that it is ... on a wholesale level between diamond brokers.

      . See note 2, supra, and accompanying text.

      . Defense counsel argued that it constituted “unfair tactics” to “try to create prejudice in the minds of the jury by inflection, innuendos, insinuations” and that the prosecution was attempting to “inflame people” by “twist[ing] the truth”. Then he came to the point:
      Now, I resent it. I personally resent it calling my client a liar.
      Now he is an American citizen and he is entitled to every kind of a courtesy; every kind of a right and privilege that you or I should be entitled to in this Court of Law. Why is he a liar? Because he tried to prove in a particular time, in 1963, he had a valuable diamond and he had a gold coin collection. And you call him a liar?
      Well, let us see. Now, who is lying here ?
      I don’t call anybody a liar, but I say who is making the mistake? Who is making the false innuendo?


author: GEE, Circuit Judge: GEE, Circuit Judge

text:
    Luke BONURA, Jr., Plaintiff-Appellee, Cross-Appellant, v. SEA LAND SERVICE, INC., Defendant-Appellant, Cross-Appellee, Atlantic & Gulf Stevedores, Inc., Intervenor.
    No. 74-1012.
    United States Court of Appeals, Fifth Circuit.
    Dec. 20, 1974.
    Rehearing and Rehearing En Banc Denied Feb. 13, 1975.
    See 512 F.2d 671.

      Ralph E. Smith, New Orleans, La., for defendant-appellant, cross-appellee.
    Frank J. D’Amico, New Orleans, La., for plaintiff-appellee, cross-appellant.
    Bertrand M. Cass, Jr., New Orleans, La. for Atlantic & Gulf Stevedores.
    Before GEWIN, AINSWORTH and GEE, Circuit Judges.
   GEE, Circuit Judge:

Luke Bonura, a longshoreman, was injured aboard S/S Maiden Creek when he fell during cargo loading operations at New Orleans in December of 1969. This suit against Sea Land Service, Inc. (Sea Land), the owners of Maiden Creek, an action predicated upon both negligence and unseaworthiness of the vessel, followed. The trial court found as a matter of law that Maiden Creek was unseaworthy and that her unseaworthiness caused Bonura’s injuries. He therefore directed a verdict of liability against Sea Land and submitted only the issue of damages to the jury. The jury returned a verdict of $175,000 for Bonura. After receiving the verdict the trial court indicated that it intended to grant a new trial unless Bonura would remit $50,000 of the jury’s award. Bon-ura consented, and a final judgment of $125,000 was entered. From this judgment Sea Land has appealed, and Bon-ura has cross-appealed.

Sea Land contends that the trial court erred (1) in directing a verdict of “liability,” (2) in failing to submit to the jury an instruction on the issue of Bon-ura’s purported comparative negligence, and (3) in submitting to the jury an issue of loss of future wages. On his cross-appeal, Bonura maintains that the trial judge abused his discretion in ordering a remittitur. A majority of this Court concludes that the trial court committed no reversible error, and its judgment is, therefore, affirmed.

The district court held that the S/S Maiden Creek was unseaworthy as a matter of law. This holding was based upon its conclusion that reasonable men could not differ about whether working conditions aboard at the time of Bonura’s accident violated two subsections of the then-current version of the Safety and Health Regulations for Longshoring. Specifically, the trial court believed that there could be no doubt that subsections (b) and (c) of 29 C.F.R. § 1504.32 had been violated.

While this Court has held that an inquiry into whether or not a ship is unseaworthy is usually a question to be decided by the trier of fact, Neveaux v. Central Gulf Steamship Corp., 503 F.2d 961 (5th Cir. 1974); Morales v. City of Galveston, 291 F.2d 97, 98 (5th Cir. 1961), aff’d, 370 U.S. 165, 82 S.Ct. 1226, 8 L.Ed.2d 412 (1962), it has also recognized that violations of the Safety and Health Regulations for Longshoring make a ship unseaworthy as a matter of law. Carey v. Lykes Bros. Steamship Co., 455 F.2d 1192, 1194 fn. 2 (5th Cir. 1972), and cases cited therein. It follows that a trial judge correctly directs a verdict of unseaworthiness when he finds in a particular case that all the facts and inferences point so strongly and overwhelmingly towards a violation of one or more of the sections of those regulations that reasonable men could not disagree that a violation existed. Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969).

We would hestitate to affirm the trial court solely on its determination that there was without question a violation of subsection (c), since there was some dispute in the evidence as to whether two crews were working at different levels in Maiden Creek’s hatch. However, a detailed review of all the evidence presented compels the conclusion that Bonura was required to work at a spot — either at the edge of a hatch section or atop piled cargo — which was more than eight feet high and where no protective safety net had been rigged. Since the failure to provide a safety net under such circumstances is a clear violation of subsection (b), the Maiden Creek was unseaworthy.

See Land complains that it was entitled to a jury instruction on the issue of Bonura’s purported comparative negligence. A majority of this Court, however, is in agreement with the district court that no evidence was presented which would, even construed most favorably to Sea Land, indicate comparative negligence on the part of Mr. Bonura would lose wages in the future, tive negligence it would have been confusing, as well as erroneous, for the trial court to have submitted an instruction on that subject to the jury. Urti v. Transport Commercial Corp., 479 F.2d 766 (5th Cir. 1973).

Sea Land’s final contention on appeal is that the trial court erred in submitting to the jury the issue of loss of future wages. The issue should not have been submitted, according to Sea Land, for two reasons. First, Sea Land argues, there was no evidence that Bon-urs would lose wages in the future. Second, Sea Land continues more specifically, the jury was given no guidance by way of expert testimony which would enable it to estimate rationally the present value of Bonura’s loss of future wages, if any. This is so, according to Sea Land, because there was no evidence concerning his work life expectancy, nor was there any actuarial evidence concerning the possible value of Bonura’s loss or the accepted mathematical methods, including the use of realistic interest rates, of reducing gross loss to present value. Sea Land does not complain of the substance of the trial court’s instruction itself.

As to Sea Land’s first contention concerning loss of future wages, there is a simple answer. Although Bonura was working as a longshoreman at the time of trial, there was adequate evidence upon which to base the submission of an instruction on loss of wage earning capacity. There is no doubt that Bonura suffered a significant hearing loss in certain frequency ranges. There was also testimony that his fall affected his sense of balance. Both of these infirmities can reasonably be assumed to have the effect of making 'Luke Bonura a less desirable longshoreman. In addition, Mr. Bonura testified that since the accident there had been days on which a pain in his neck and back prevented him from reporting to work.

Sea Land’s second contention on the future loss of wages issue presents more difficulty. The Third Circuit has held that, “ . . . once evidence is presented and recovery is sought for future lost earnings, the jury is entitled to receive evidence and appropriate mathematical guidance on the method of reducing lost future earnings to present worth, if they are to act rationally and ‘not upon mere conjecture and guess.’ ” Ballantine v. Central Railroad of New Jersey, 460 F.2d 540, 544 (3rd Cir.), cert. denied, 409 U.S. 879, 93 S.Ct. 133, 34 L.Ed.2d 133 (1972). See also Russell v. City of Wildwood, 428 F.2d 1176 (3rd Cir. 1970) and Haddigan v. Harkins, 441 F.2d 844 (3rd Cir. 1970). However, the Third Circuit seems to stand alone in making either expert, actuarial evidence concerning the present value of future loss or mathematical guidance on the method of reducing gross loss to present value prerequisite to the submission of loss of future wages to the jury. The Sixth, Seventh and Eighth Circuits have all rejected this approach. They have not conceded that “the application of the present worth rule is beyond the understanding and capabilities of most lay persons serving on juries,” Ballantine, supra, 460 F.2d at 543, but, rather, have presumed that jurors are capable enough and aware enough of modern economics to be able to reduce gross loss to present value intelligently once they have been instructed to perform this function. Heater v. Chesapeake and Ohio Railway Co., 497 F.2d 1243, 1249 (7th Cir. 1974); Duncan v. St. Louis-San Francisco Ry. Co., 480 F.2d 79, 87 (8th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 69, 39 L.Ed.2d 109 (1973); Baynum v. Chesapeake and Ohio Ry. Co., 456 F.2d 658, 660-661 (6th Cir. 1972); Pennsylvania Railroad Co. v. McKinley, 288 F.2d 262, 265 (6th Cir. 1961). Believing as we do in the ability of the modern American jury, we align ourselves with the majority of the circuits which have spoken on this question. We hasten to note, however, that we believe that it is decidedly the better practice to present the jury with either expert mathematical testimony or actuarial tables to aid it in its task of reducing gross future lost earnings to their present value. Nothing in our opinion should be read as discouraging attorneys or the court from affording the jury as much guidance in this respect as is reasonable. We hold only that such actuarial and mathematical evidence is not an absolute prerequisite to the submission of an instruction on lost future wages when evidence of such a loss has been presented.

Bonura on his cross-appeal complains of the $50,000 remittitur which he consented to under protest as the price for the trial court’s denial of Sea Land’s motion for a new trial. It has long been the rule, and there can scarcely be any doubt at this late date, that a federal district court has the power to condition the denial of a motion for a new trial upon consent to a remittitur. Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935). This Court has held that the ordering of a remittitur under such circumstances is subject to appellate review in spite of the fact that it has been consented to, provided that the consent was given under protest. United States v. 1160.96 Acres of Land, 432 F.2d 910, 912 (5th Cir. 1970); Steinberg v. Indemnity Insurance Co. of North America, 364 F.2d 266, 268 (5th Cir. 1966) The standard for review, however, is strict; and the trial court will be reversed only if the party opposed to the remittitur shows an abuse of discretion on the part of the judge. Gorsalitz v. Olin Mathieson Chemical Corp., 456 F.2d 180 (5th Cir.), cert. denied, 407 U.S. 921, 92 S.Ct. 2463, 32 L.Ed.2d 807 (1972); Steinberg, supra; Delta Engineering Corp. v. Scott, 322 F.2d 11 (5th Cir. 1963), cert. denied, 377 U.S. 905, 84 S.Ct. 1164, 12 L.Ed.2d 176 (1964). The reason for this strict standard is that the court’s power to condition a denial of a new trial upon consent to a remittitur is founded upon its power to grant a new trial for exces-siveness of verdict. This latter power is, itself, reviewable only for a grave abuse of discretion. Brents v. Freeman’s Oil Field Service, Inc., 448 F.2d 601 (5th Cir. 1971); Tucker v. Bethlehem Steel Corp., 445 F.2d 390 (5th Cir. 1971). See Manning v. Altec, Inc., 488 F.2d 127, 130-133 (6th Cir. 1973). A district judge’s discretion as to remitti-tur is circumscribed by the Seventh Amendment: He must not substitute his judgment of damages for that of the jury. We have, therefore, held that the trial court may not require remission of a sum which would reduce the verdict below the maximum award which is reasonably supported by the evidence. Jenkins v. Aquatic Contractors & Engineers, 446 F.2d 520, 522 (5th Cir. 1971); Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033, 1046-1047 (5th Cir. 1970), modified, 456 F.2d 180, cert. denied, 407 U.S. 921, 92 S.Ct. 2463, 32 L.Ed.2d 807 (1972). In examining the problem of the validity of a suggested remittitur, however, the first question is not whether the amount remitted is correct. Rather, the first question is whether the trial judge abused his discretion in ordering any re-mittitur at all. In answering this question, an appellate court will find an abuse of discretion only when it appears that the jury’s original verdict was clearly within the universe of possible awards which are supported by the evidence. Manning v. Altec, Inc., supra. If the jury's verdict is not clearly within this ambit, then the trial court has not abused its discretion in demanding some remittitur in return for the denial of a motion for a new trial. Once it has been determined that the trial court has not abused its discretion in demanding some remittitur, then the appellate court must determine whether the amount of the award which remains after the re-mittitur reflects the maximum award which the evidence will support or whether it merely represents the trial court’s opinion of what the proper award should have been. At this point deference will be given to the trial court’s determination since he, and not the appellate court, was present during the ebb and flow of the trial, and it will be presumed that the amount which he has chosen is the amount which will reduce the jury’s verdict to the “maximum possible” award unless the party opposed to the remittitur can point to credible evidence which would support a greater recovery.

In the case before us for decision we have determined, after a review of the evidence, that under these standards the trial court did not abuse its discretion in requiring a remittitur. Nor have we found credible evidence which would support an award of more than $125,000.

Affirmed.

GEE, Circuit Judge

(dissenting):

I respectfully dissent from that portion of the majority opinion which holds Sea Land was correctly denied an instruction on Bonura’s comparative negligence. While I agree wholeheartedly with the holding of Urti v. Transport Commercial Corp., 479 F.2d 766 (5th Cir. 1973) that a comparative negligence issue should not be submitted when there is a complete absence of evidence of negligence on the part of an injured party, I do not feel that that case governs the case under consideration. Urti is a classic “no-evidence” case; here, by contrast, there was ample evidence to support a finding of some negligence on the part of Bonura.

According to his own testimony, Mr. Bonura was aware before he fell of the fact that he was working in an area where safety nets should have been rigged. He was also aware of the fact that they had not been rigged. Since he was an experienced longshoreman, a jury could reasonably have concluded that he must have known or, at least, should have known that the absence of the safety nets made his working conditions much more hazardous than they would have been had a net been properly rigged. Yet it is undisputed that Bon-ura neither ceased working nor demanded or even requested that a net be rigged to protect him from falling.

This Court has held that the fact that there has been a violation of the Safety and Health Regulations for Longshoring even a flagrant one, does not preclude a shipowner from benefiting from the doctrine of comparative negligence. Denenea v. Shipping Enterprise Corp., 486 F.2d 549 (5th Cir. 1973); Denny v. Jugoslavenska Oceanska Plov., Kotor Yugoslavia, 455 F.2d 1277 (5th Cir. 1972); Phipps v. S/S Santa Maria, 418 F.2d 615 (5th Cir. 1969); Manning v. M/V Sea Road, 417 F.2d 603 (5th Cir. 1969). We have held further that working in an area made unsafe by a violation of the regulations can itself be negligence, if the worker has knowledge of the violation and of the dangerous condition which it has created. See, e. g., Phipps v. Santa Maria, supra, 418 F.2d at 616; Denenea v. Shipping Enterprise Corp., supra, 486 F.2d at 550. Moreover, it is generally accepted that the failure to inform superiors of unseaworthy conditions so that these conditions might be corrected can, also, under certain circumstances, be considered negligence. Mroz v. Dravo Corp., 429 F.2d 1156, 1164 (3rd Cir. 1970); DuBose v. Matson Navigation Co., 403 F.2d 875 (9th Cir. 1968); see also Rivera v. Rederi A/B Nordstjernan, 456 F.2d 970 (1st Cir.), cert. denied, 409 U.S. 876, 93 S.Ct. 124, 34 L.Ed.2d 128 (1972). But see Rivera v. Farrell Lines, Inc., 474 F.2d 255 (2nd Cir.), cert. denied, 414 U.S. 822, 94 S.Ct. 122, 38 L.Ed.2d 55 (1973) which would restrict this doctrine to unsafe conditions which are not open and obvious.

Given the state of the law as outlined above, I believe that there was a plain jury question as to Bonura’s comparative negligence. Specifically, I believe that the jury should have been allowed to decide whether, considering all the facts of this case, a reasonable man with Bonura’s experience in longshoring would have continued to work without a safety net having been rigged or would have failed to inform his superiors of the known hazard and demanded, or at least requested, that it be eliminated. It is ironic that the same want of a net, a want equally apparent to both sides, should be held at once to inculpate the defendant and exculpate the plaintiff- — • both beyond the possibility of reasonable disagreement. Bonura admits that he knew the net should have been there but was not. The condition obviously was dangerous. Our holding, and that below, requires a determination that reasonable men could not differ whether his continuing to work under these conditions, without so much as a request that mandated precautions for his own safety known to him be observed, was prudent. I cannot do so.

      . The accident occurred on December 11, 1969. At that time the following section of the Safety and Health Regulations for Long-shoring was in effect as 29 C.F.R. § 1504.-32:
      § 1504.32 Stowed cargo and temporary landing platforms (a) * * *
      (b) When an edge of a hatch section or of stowed cargo more than 8 feet high is so exposed that it presents a danger of an employee falling, the edge shall be guarded by a safety net of adequate strength to prevent injury to a falling employee, or by other means providing equal protection under the existing circumstances.
      (c) When two gangs are working in the same hatch on different levels, a safety net shall be rigged and securely fastened so as to prevent men or cargo from falling.
      29 C.F.R. (Labor) has been modified since 1969, but this section has remained unchanged. It is, however, now 29 C.F.R. § 1918.32.

      . There was some dispute as to exactly how far Bonura fell, but each witness called testified that he fell at least eight feet. The only evidence presented which would indicate that Mr. Bonura fell less than eight feet is a statement found in a medical report which relates that Bonura, in recounting the history of his accident to a doctor just after he regained conciousness at the hospital, said that he fell about six feet. In light of the overwhelming evidence that Mr. Bonura in fact fell more than eight feet the existence of the medical report did not require the trial court to submit the issue of liability to the jury. Boeing v. Shipman, supra.

      . Other circuits disagree with us on the ap-pealability of remittiturs. See generally 9 J. Moore, Federal Practice j[ 203.06, at 721-722 (2d ed. 1973) and cases cited therein.

      . The facts in TJrti are as follows :
      On November 15, 1966, while aboard the S.S. Tamara Guilden in the port of Haifa, Israel, Angel Urti, the plaintiff, was ordered to paint draft numbers on the stern of the vessel. He was lowered over the side of the vessel in a pontoon. The bosun, operating the winch, lowered the pontoon at Urti’s signal. To bring himself closer to the vessel, Urti used a two-inch breasting line which was attached to both the pontoon and to a pad-eye, a U-bolt, attached to the side of the vessel. The pontoon was supported by four one-inch wire lines attached to a bridle or ring which was in turn attached to the winch. The bosun told the plaintiff that he would slacken the wire lines, thus shifting more weight to the breasting line and causing it to become taut. This would naturally pull Urti closer to the ship. As the pontoon was being lowered in this fashion, the manila breasting line broke causing a shift in the position of the pontoon. The plaintiff fell forward striking his forearm and shoulder against the metal bridle or one of the wire cables. TJrti at 768.
      Mr. Urti had not selected, provided or rigged any of the equipment used. Neither he nor the bosun had noticed any visible defects in the manila line. Although the job which he was assigned to perform was usually done by two men, there was no reason to assume that Urti knew or had reason to know that his working alone created any undue hazard. There was no evidence that Mr. Urti gave improper instructions to the bosun which might have caused excessive strain on the breasting line. In short, although it turned out that Urti was working under what proved to be unsafe conditions, there was no evidence that he helped to create the conditions or that he was aware of the potential hazards and ignored them. He was simply doing a job which he was ordered to do. He had no reason to question the appropriateness of his orders.


text:
    Peter DASSINGER, d/b/a Peter Dassin-ger Modeling Studios, Plaintiff-Appellant, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Defendant-Appellee.
    No. 74-2171
    Summary Calendar.

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

      Darleen M. Jacobs, New Orleans, La., for plaintiff-appellant.
    Raymond J. Salassi, Jr., New Orleans, La., for defendant-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

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

   PER CURIAM:

Plaintiff-appellant Dassinger owns and operates a modeling and motion picture studio in New Orleans, Louisiana. At various times between December 1, 1970, and September 80, 1971, potential clients contacted defendant-appellee South Central Bell's [Bell’s] directory assistance service and asked for plaintiff’s business number. Dassinger alleges that the Bell operators on several of those occasions refused to impart the requested information, on the ground that the number was a semi-private one which could not be given out to the general public. After some of these frustrated customers contacted Dassinger by other means and informed him of the difficulty, plaintiff filed this lawsuit in federal district court on the basis of the federal diversity jurisdiction, complaining that the conduct of Bell’s employees had caused some potential clients to go elsewhere with lucrative contracts, to his great financial and emotional detriment. On April 4, 1974, the district court dismissed the complaint for want of jurisdiction and at the same time granted Bell’s motion for summary judgment against Dassinger. We believe that the district court should neither have dismissed the suit for lack of jurisdiction nor have awarded summary judgment to Bell. We reverse.

The jurisdiction of a federal court in a diversity case such as this one is limited to actions in which the matter in controversy exceeds $10,000. Dassinger has made a formal allegation that the amount in controversy does in fact exceed $10,000 and he has supplemented that formal allegation with two affidavits from frustrated clients tending to show that the conduct of Bell’s employees caused him to lose two contracts with a total face value of $50,000.* Unfortunately, plaintiff has not indicated how much of this $50,000 would have been profit. Bell contends, on the basis of Dassinger’s unhappy business history, that whatever profits Dassinger might have made on the contracts would not have satisfied the requirements of federal jurisdiction.

Although discretion is vested in the trial court to determine whether the claim meets the jurisdictional amount, Gibbs v. Buck, 1939, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111, the Supreme Court has formulated a rule of liberality to govern dismissal for want of jurisdiction. The amount stated in the complaint is itself dispositive of jurisdiction, unless it appears or is in some way shown that the amount stated is not claimed in good faith. For these purposes, good faith is deemed to be lacking only when it appears to a legal certainty that the claim is really for less than the jurisdictional amount. Horton v. Liberty Mutual Ins. Co., 1961, 367 U. S. 348, 353, 81 S.Ct. 1570, 1573, 6 L.Ed.2d 890, 894; St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82 L.Ed. 845, 848; Burns v. Anderson, 5 Cir. 1974, 502 F.2d 970; Mas v. Perry, 5 Cir. 1974, 489 F.2d 1396.

It does not appear that plaintiff's jurisdictional claim here was made in bad faith or that, if his evidence is taken as true and viewed most favorably to him, it can be said to a legal certainty that a reasonable jury could not have found that the loss by Dassinger of the two contracts resulted in damages sufficient to invoke federal jurisdiction. See Lee v. Risen, 5 Cir. 1973, 475 F.2d 1251; Opelika Nursing Home, Inc. v. Richardson, 5 Cir. 1971, 488 F.2d 658. It follows t. ;t the trial court should not have dismissed the complaint for lack of jurisdictional amount.

Turning to the trial court’s order of summary judgment against plaintiff, we note at the outset that the court had already found that it had no jurisdiction over the action, so that it had no power to render a judgment on the merits against either party. Heyward v. Public Housing Authority, 5 Cir. 1956, 238 F.2d 689; 10 C. Wright & A. Miller, Federal Practice & Procedure § 2713. Even if the district court had originally found that it had jurisdiction over the lawsuit, it should not have granted Bell's motion for summary judgment. In considering a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, the district court must construe all pleadings liberally in favor of the party against whom the motion is made, James Talcott, Inc. v. Allahabad Bank, Ltd., 5 Cir. 1971, 444 F.2d 451, cert. denied, 404 U.S. 940, 92 S.Ct. 280, 30 L.Ed.2d 253, and the motion should be granted only where the moving party is entitled to judgment as a matter of law and the record clearly shows that no genuine issue of material fact exists. Aulds v. Foster, 5 Cir. 1973, 484 F.2d 945; Ranger Ins. Co. v. Algie, 5 Cir. 1973, 482 F.2d 861; Pennsylvania v. Curtiss National Bank, 5 Cir. 1970, 427 F.2d 395.

In this case, quite apart from the fact that Rule 56 does not permit trial by affidavit, Benton-Volvo-Metairie, Inc. v. Volvo Southwest, Inc., 5 Cir. 1973, 479 F.2d 135, there were unresolved factual disputes between the parties with regard to whether Bell’s employees actually acted improperly and if so, whether Dassinger was damaged thereby. Since these issues form the heart of this dispute, the motion for summary judgment should not have been granted.

Reversed and remanded.

      . 28 U.S.C. § 1332 provides in pertinent part:
      (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between-
      (1) citizens of different States ....

      . Plaintiff actually alleges damages in the amount of $625,000 resulting from loss of business, mental anguish and emotional stress and strain. His non-business claims have led to an extensive discussion by both parties as to whether the action sounds in tort or in contract, a dispute rendered significant by the general Louisiana rule that no damages for pain and suffering may be awarded for breach of contract. Louisiana Civil Code, art. 1934; see Sahuc v. United States Fidelity & Guaranty Co., 5 Cir. 1963, 320 F.2d 18; Lee Lumber Co. v. Union Naval Stores Co., 1917, 142 La. 502, 77 So. 131; Moreau v. Marler Ford Co., La.App.1973, 282 So.2d 852. We leave the resolution of this matter to the district court on remand.

      . Rule 56 of the Federal Rules of Civil Procedure provides, in pertinent part:
      (b) . . .A party against whom a claim . . . is asserted . . . may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.