author: SWYGERT, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Donald Alan BUSH, Defendant-Appellant.
    No. 72-1013.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 10, 1974.
    Decided Jan. 7, 1975.

      George C. Pontikes, Chicago, Ill., for defendant-appellant.
    James R. Thompson, U. S. Atty., Gary L. Starkman, Theodore T. Scudder, Asst. U. S. Attys., Chicago, Ill., for plaintiffappellee.
    Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge and FAIR-CHILD, CUMMINGS, PELL, STEVENS, SPRECHER and TONE, Circuit Judges.
   SWYGERT, Chief Judge.

We consider, for the third time, the case of Donald Alan Bush. United States v. Bush, 476 F.2d 1094 (7th Cir. 1973); United States v. Bush, 499 F.2d 815 (7th Cir. 1974). Bush was convicted for willfully failing to submit himself for induction under the Selective Service Act of 1967, 50 U.S.C.App. § 462. He appeals his conviction on the ground that he was improperly denied a conscientious objector classification. We find merit in this contention, and therefore reverse his conviction.

The defendant registered with the Selective Service in Cincinnati, Ohio in 1964. At the time he was an engineering student at Purdue University. Bush was classified II-S, and he held this student deferment for fourteen months, until December of 1965 when he withdrew from the University. On January 4, 1966, he requested an SSS Form 150 in order to apply for classification as a conscientious objector. Bush returned the completed Form 150 on January 11, 1966. On that same day the local board rejected his application for C-0 status and classified Bush I-A. The board gave no reasons for its decision, and Bush did not seek timely review of this classification.

Subsequently, on June 29, 1966, Bush notified his local board that he had enrolled at Ohio State University. On August 8, 1967 the board again reclassified Bush I-A and notified him of his rights to consult an appeal agent, seek a personal appearance, and take an appeal. This time he exercised all of these rights, pressing his claim for a student deferment. The local board, after hearing Bush at a personal appearance, again classified him I-A. The appeal board affirmed the I-A classification on April 11, 1968. On April 29, 1968 Bush was informed that a new form had been received from Ohio State University and that he would therefore be considered for a II-S deferment at the May board meeting. On May 2, 1968 Bush wrote his board indicating he intended to appeal his I-A classification on the ground that he was a conscientious objector, but later the same day he again wrote his board to say that his primary appeal at that point in time was his student deferment and that his C-0 appeal should therefore be “deferred” to a later date. In June of 1968 Bush was granted a student deferment.

Shortly before his graduation, in December of 1968, Bush was again reclassified I-A. On December 2, 1968 he responded by notifying the board that he might require an additional quarter to graduate and that he therefore would require an extension of his II-S deferment. He also indicated that he might appeal a I-A classification on hardship grounds in the event he did graduate in December. On December 14, 1968 Bush notified the board that because of “some very good luck and hard work” he would graduate from Ohio State on that day. He also indicated that his possible hardship appeal hinged on facts which would not be known until January of 1969, and that while he could not, therefore, assert hardship as a basis for appeal until January, he did desire to “open an appeal on the basis of my beliefs (As explained in a C.O. form on record with your office since 1965) . . . .” He concluded by stating that “this is an appeal for classification into the C.O. Class.”

In furtherance of his desire to appeal his I-A classification on the basis of his beliefs, Bush requested an appearance before his local board. After an exchange of correspondence the board scheduled an interview for February 25, 1969 in Cincinnati, Ohio. Bush was in Detroit, Michigan at this time and notified the board that it would be impossible for him to personally attend the scheduled meeting in Cincinnati. He sent a six page outline of his beliefs for consideration by the board in lieu of his appearance. At its meeting on February 25, 1969 the board reclassified Bush I-A. No reasons were given for this decision. Bush was notified of his rights of appeal and he did appeal. On September 15, 1969, the appeal board affirmed the I-A classification. No reasons were given for the appeal board’s action. On June 29, 1970 Bush received a rescheduled induction order and on August 13, 1970 he reported to the Chicago induction station. When his name was called, Bush refused induction.

The defendant contends that his beliefs, as described by his Form 150 filed in 1966 and the six page outline sent to the board in February of 1969, present a prima facie case of conscientious objector status under section 6(j) of the Military Service Act of 1967, 50 U.S.C.App. § 456(j). He further contends that in light of this prima facie showing the local and appeal boards could not lawfully reject his 1969 C-0 claim without stating reasons for their decisions in the matter. Our reading of the relevant cases supports this contention and we therefore reverse Bush’s conviction.

We believe this case is controlled by our decisions in United States v. Lemmens, 430 F.2d 619 (7th Cir. 1970), and United States ex rel. Hemes v. McNulty, 432 F.2d 1182 (7th Cir. 1970). In the Lemmens case we adopted the “prima facie” rule first clearly articulated by the Ninth Circuit in United States v. Haughton, 413 F.2d 736, 739, 742 (9th Cir. 1969). We stated the rule as follows:

We are persuaded that where the validity of a classification rejecting a claim as conscientious objector is in issue, and where the registrant described a belief which on its face fulfilled the legal requirements, the board did not state its reasons for rejection, and the court can not otherwise determine with any degree of assurance that the decision really made by the board properly supported the rejection and had a basis in fact, the court should hold the classification invalid. (Footnote omitted.) 430 F.2d at 624.

Under Lemmens, we must undertake a two-step analysis. We must first decide whether the beliefs stated by Bush, taken on their face and without regard to the question of the sincerity with which they are held, qualify under section 6(j) of the Selective Service Act of 1967 as the basis for a conscientious objector classification. If we find that the beliefs stated by Bush meet these statutory requirements, we must further decide whether the record allows us to determine, with any degree of assurance, the actual basis for the board’s decision, i.e., “the decision really made.” If the basis for the decision is apparent on the record, we simply proceed to analyze that decision as if the board had stated its reasons.

I.

The initial question is whether Bush’s original SSS Form 150 and his subsequent six page memorandum describe a belief or beliefs which qualify under section 6(j). That section provides:

(j) Nothing contained in this title . shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. As used in this subsection, the term “religious training and belief” does not include essentially political, sociological, or philosophical views, or a merely personal moral code.

The key element under this section is the concept of “religious training and belief,” and the main thrust of the Government’s argument to us is that Bush’s beliefs fall within the “essentially philosophical” and “merely personal moral code” exceptions set out in the statute. The contention does not withstand analysis.

On his original Form 150 filed with his local board on January 11, 1966, Bush signed “statement B” which read, “I am, by my religious training and belief, conscientiously opposed to participation in war in any form and I am further conscientiously opposed to participation in noncombatant training and service in the Armed Forces. I, therefore, claim exception from both combatant and noncombatant training and service in the Armed Forces.” In the same form, Bush indicated that he did believe in a Supreme Being. He further described his beliefs at that time by stating:

I believe in the basic Kantian theories (described elsewhere). It is not my belief in a supreme being which motivates me to conscientious objection.
I came to believe in the Kantian theories by living for 19 years — many things contributing to this. I believed in what are the Kantian theories long before I found out that that set of beliefs is the Kantian theory.
I try to make my every action consistant [sic] with my beliefs — I do not (as much as possible — I keep trying to improve on this) lie, cheat, steal, infringe on others’ rights. My life is lived on finding truth and living it.

I shall try to explain what I believe in here in outline form:

I. I believe in categorical imperatives — There are ultimate truths that are formed not because one is inclined to them but by their intrinsic truthfulness, i.e., killing is wrong.
(These explanations are very weak because to explain these things would take several hundred pages)
II. Things should be done from duty things — right things: Categorical imperatives
III. Each man’s actions show what he believes in
IV. I must live by the truth (right)
Imminent human imperative:
No man is God, but each must draw a line as to what he will and will not do. In the use of force I think and believe I would draw mine (I have never been confronted with the situation) in the following way: If a murder [sic] were to attempt to kill someone close to me I would attempt to stop him (I would not kill him).

Almost three full years after Bush filed his initial application for C-0 classification he submitted to his local board a six page memorandum which restated and revised his beliefs relative to formalized religion as that term is commonly understood, and to his personal convictions concerning war. On the first page of this document Bush set out the following outline of his beliefs:

I. God
I do not believe in God, I am an atheist. I hold no belief in a super natural [sic] being, nor do I believe in a heaven or hell or in any of the religious, theological teachings of the bible.
II. Man
I believe that man stands at the pinnacle of the hierarchy of living things. There is no superior being to man. I do not believe in life forms from other worlds (men from outerspace). In all of the universe we the inhabitants of this planet are the highest form of life.
III. Truth
That which is correct, real, in accordance with actual existence. Just as there are physical truths which we call laws of science, so there are moral and ethical truths. These truths are invariable, they are constant through all time, they do not change to suit situations.
IV. Knowledge
Because man has powers of the intellect it is possible for him to know truths. Truths do not grow on trees, they must be sought out,, learned. Everything that exists and or happens has a relation to a truth.
V. Honor
Man should live according to the moral and ethical and physical truths of the universe. Only in living according to the truths which a man knows can he obtain personal honor.
VI. Human Inadequacy
Man himself, is not a God; he is not a super natural [sic] being. Man can not know all truths, he can not hold all knowledge, nor can he at every moment live according to the truths which he knows.

Bush went on to explain the major points of this outline in greater detail in the ensuing pages. Relevant to our discussion are the following passages:

I do not believe in life after death which leads me into a conclusion that whatever I do now with my life is all that there is of meaning to me. Consequently I try to make all of my actions purposeful ones. ... I believe that the present life I am leading is the only one that there will ever be for me and that what I do with it, however I live this particular life of mine will be the measure of my personal worth.
All potential for both good and evil lie therefore in man. The final justification of a man’s life comes in two ways; firstly, to extent that he lives up to his capabilities as a man (every gifted artist should be striving to paint his masterpiece); secondly, to the extent that he can trimpuh over evil (do good) when all of the conditions of his life would dictate that he do evil.
I do feel I am my own judge. What does a man judge himself on? I believe there'is only one basis for judgment — personal honor — the extent to which a man lives in accordance with his beliefs (those things he knows to be truths). For instance you often hear people giving their “word,” that they will do such and such a thing when in fact they have no real plan to do the thing. When I give my word that I will do something, then only death can stop me from doing it and indeed I give my word most frequently to myself, not to other people. . [T]he only thing I really fear is dieing [sic] without honor. This does not mean that I must die with a sword in my hand but rather than I die upholding things which I believe in. In the final analysis, whatever I do must be in accordance with what I believe for I sit in judgment over myself and to live life without, honor is the greatest crime I could commit and it would be a crime against myself.

At the end of his memorandum Bush offered the following summary specifically devoted to his opposition to war: Opposition to War

I. Life is sacred — no man has the right to take another man’s life.
II. Killing is wrong — a moral, ethical truth.
III. War is mass killing.
IV. It is not enough just to say or believe that war and killing are wrong, you have to live, act in accordance with the knowledge that it is wrong.
V. Service in the military is in direct support of things which participate in war — and thereby killing.
VI. I can not in my conscience support the military or its actions by serving in it.
As a consequence, I appeal for a classification into the conscientious objector class so that I may fulfill my obligation to my country in accordance with my beliefs.

These beliefs, while unorthodox in relation to traditional, institutional concepts of “religious training and belief,” nevertheless fall well within the confines of the statutory definition of these concepts as recently interpreted by the Supreme Court and our own court. In Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), Justice Black, speaking for a plurality of the Court, set forth the following analysis of the concept of “religious belief”:

What is necessary under Seeger for a registrant’s conscientious objection to all war to be “religious” within the meaning of § 6(j) is that this .opposition to war stem from the registrant’s moral, ethical, or religious beliefs about what is right and wrong' and that these beliefs be held with the strength of traditional religious convictions. . . . If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual “a place parallel to that filled by . . . God” in traditionally religious persons. Because his beliefs function as a religion in his life, such an individual is as much entitled to a “religious” conscientious objector exemption under § 6(j) as is someone who derives his conscientious opposition to war from traditional religious convictions. 398 U.S. at 339-340, 90 S.Ct. at 1796.

In United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) referred to by Justice Black in the above passage, the Court had held that:

The test might be stated in these words: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition. 380 U.S. at 176, 85 S.Ct. at 859.

While both of these passages had specific reference to the pre-1967 requirement that an individual’s belief be “in a relation to a Supreme Being,” 62 Stat. 612, the Court’s analyses of the beliefs professed by Seeger and Welsh indicate that in both cases the quoted passages were intended to be given the broadest possible application, not only with respect to the “Supreme Being” requirement, but with respect to the “philosophical” and “personal moral code” exceptions as well. Thus, the Court in Seeger held that a stated “belief in and devotion to goodness and virtue for their own sakes and a religious faith in a purely ethical creed,” 380 U.S. at 166, 85 S.Ct. at 854, qualified under section 6(j) even though the petitioner in that case “cited such personages as Plato, Aristotle and Spinoza for support of his ethical belief in intellectual and moral integrity ‘without belief in God, except in the remotest sense.’ ” Id. Similarly in Welsh, Justice Black held that the petitioner there had met the requirements of section 6(j) even though his “conscientious objection to war was undeniably based in part on his perception of world politics.” 398 U.S. at 342, 90 S.Ct. at 1797. Justice Black continued:

Welsh stated that he “believe[dj the taking of life — anyone’s life — to be morally wrong.” App. 44. In his original conscientious objector application he wrote the following:
“I believe that human life is valuable in and of itself; in its living; therefore I will not injure or kill another human being. This belief (and the corresponding ‘duty’ to abstain from violence toward another person) is not ‘superior to those arising from any human relation.’ On the contrary: it is essential to every human relation. I cannot, therefore, conscientiously comply with the Government’s insistence that I assume duties which I feel are immoral and totally repugnant.” App. 10. [Original emphasis.]

Welsh elaborated his beliefs in later communications with Selective Service officials. On the basis of these beliefs and the conclusion of the Court of Appeals that he held them “with the strength of more traditional religious convictions,” 404 F.2d [1078], at 1081, we think Welsh was clearly entitled to a conscientious objector exemption. Section 6(j) requires no more. That section exempts from military service all those whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war. 398 U.S. at 343-344, 90 S.Ct. at 1798.

It is clear beyond any doubt that the beliefs expressed in Bush’s Form 150 and in his subsequent memorandum are of a type that prima facie occupy in his life “a place parallel to that filled by the God of those admittedly qualifying for the exception.” Seeger, supra. Moreover, these documents clearly show the kind of belief which, if sincerely held, “would give [Bush] no rest or peace if [he] allowed [himself] to become a part of an instrument of war.” Welsh, supra. Certainly Bush’s statement of beliefs cannot be fairly distinguished from the beliefs described in this court’s opinion in United States ex rel. Hemes v. McNulty, supra, where the petitioner referred to his own beliefs as “my personal moral code,” and described his concept of “God” as “man’s ability to know love and enter into love relationships.” 432 F.2d at 1185.

Finally we note that Bush’s statement of beliefs indicates very clearly that his opposition is to war “in any form.”

We therefore hold that Bush has stated a prima facie case of conscientious objection to war as contemplated by section 6(j) of the Selective Service Act of 1967.

II.

Having held that Bush has stated a prima facie case of conscientious objection to war we now must determine whether the record in this case clearly indicates that the decisions of the local board and the appeal board were based on some specific ground having a demonstrated basis in fact and a supportable basis in law. The elements of a claim for C-0 status are set out in the Supreme Court’s per curiam opinion in Clay v. United States, 403 U.S. 698, 700, 91 S.Ct. 2068, 2070, 29 L.Ed.2d 810 (1971):

In order to qualify for classification as a conscientious objector, a registrant must satisfy three basic tests. He must show that he is conscientiously opposed to war in any form. Gillette v. United States, 401 U.S. 437, [91 S.Ct. 828, 28 L.Ed.2d 168]. He must show that this opposition is based upon religious training and belief, as the term has been construed in our decisions. United States v. Seeger, 380 U.S. 163, [85 S.Ct. 850, 13 L.Ed.2d 733]; Welsh v. United States, 398 U.S. 333, [90 S.Ct. 1792, 26 L.Ed.2d 308]. And he must show that This objection is sincere. Witmer v. United States, 348 U.S. 375, [75 S.Ct. 392, 99 L.Ed. 428].

Because we have already eliminated the questions of “religious training and belief” and opposition to war “in any form,” our inquiry is limited to whether or not Bush’s stated beliefs were sincerely held. However it is not enough for us merely to find a “basis in fact” for a finding of insincerity. In order to affirm this conviction, and thereby affirm the denial of Bush’s C-0 claim, we would also have to determine with assurance that the local board and the appeal board based their actual decisions on a finding of insincerity and not on an evaluation of the substance of his stated beliefs. Lemmens, supra.

The Government urges five factual bases apparent on the face of the record upon which the local board and appeal board could have determined that Bush was insincere: 1) his participation in a mandatory R.O.T.C. program at Purdue University in 1964, almost two years prior to his initial C-0 claim, 2) an alleged suicide attempt, 3) his employment by Chrysler Corporation, which is a manufacturer of military vehicles and equipment, 4) his failure to reassert his original C-0 claim at every available point instead of relying on student deferments, and 5) his “juggling of priorities” among his deferment claims. An examination of the record reveals, however, that while it is possible that the local and appeal boards could have concluded that one ór more of these facts created an inference of insincerity, there is no way of determining with assurance that they did so or that this was the basis for their ultimate rejection of Bush’s claim. We are therefore bound under Lemmens to reverse this conviction.

The judgment of conviction is reversed and the cause is remanded with directions to dismiss the indictment.

      . Although Bush did in fact initiate an appeal on the basis of hardship, this appeal was withdrawn on April 18, 1969.

      . See also Clay v. United States, 403 U.S. 698, 703-705, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971), and cases cited therein.

      . The government urges that other materials in the file are relevant to the determination of whether Bush has stated a prima facie claim. In effect, it urges that since Bush carries a burden to support his C-O claim he must show sincerity as an element of his prima facie statement. We reject this contention. Sincerity is a question of fact as to which reasonable minds may well differ. One of the primary reasons for the Lemmens rule is to insure that such issues are first considered by local draft boards, and that federal courts know when rejection of a C-O claim by a local board rests on such a consideration rather than on an evaluation of the beliefs themselves. To inject any element of sincerity into the Lemmens prima facie test would defeat this fundamental purpose.
      Nor is this inconsistent with our previous opinion in Bresette v. Knutson, 443 F.2d 179 (7th Cir. 1971). In that case the issue was not the sufficiency of a prima facie statement of conscientious objection to war in the Lemmens situation, but rather the sufficiency of such a statement for purposes of reopening a registrant’s classification under Selective Service regulations. 32 C.F.R. § 1625.2. Moreover, in Bresette the registrant failed to state any beliefs whatsoever, relying instead on a rather emotional, but nevertheless bald assertion of “conscientious objection to the tyranny of your system and the unjust deaths that it enacts.” 443 F.2d at 180. Bresette. is therefore clearly distinguishable.


source: Caselaw Access Project

author: SIMPSON, Circuit Judge:

license: Public Domain

text:
    WOODS EXPLORATION & PRODUCING COMPANY, INC., et al., Plaintiffs-Appellees, v. ALUMINUM COMPANY OF AMERICA et al., Defendants-Appellants. WOODS EXPLORATION & PRODUCING COMPANY, INC., et al., Plaintiffs, Southeastern Pipeline Company, Plaintiff-Appellee-Cross Appellant, v. ALUMINUM COMPANY OF AMERICA et al., Defendants-Appellants-Cross Appellees.
    Nos. 72-2792, 73-1633.
    United States Court of Appeals, Fifth Circuit.
    March 13, 1975.
    Rehearing and Rehearing En Banc Denied April 24, 1975.

      Ross N. Sterling, Leroy Jeffers, Charles T. Newton, Jr., David T. Hedges, Jr., Houston, Tex., for defendants-appellants.
    Herman Wright, Arthur J. Mandell, Levert J. Able, Houston, Tex., for plaintiffs-appellees.
    Before COLEMAN, AINSWORTH and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

We review in these consolidated appeals the proceedings occurring below in this matter since its former appearance here. The facts have been amply stated in our prior opinion, Woods Exploration Co. v. Aluminum Co. of America, 5 Cir., 1971, 438 F.2d 1286, cert. denied, 1972, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 and those of the district court, W.D. Tex.1968, 284 F.Supp. 582, and W.D.Tex. 1969, 304 F.Supp. 845. We will repeat only so much of the background history of the case as is necessary to dispose of the current appeals.

By our opinion at 438 F.2d 1286 we disposed of the issues before us on the prior appeal in the following manner:

(i) We reversed the 'district court’s entry of judgment n. o. v. in favor of the defendants, Aluminum Company of America, and others, (hereinafter usually Alcoa) as to charges by the plaintiffs-appellants there, appelleescross-appellants here, Woods Exploration & Producing Company, Inc., and others, (hereinafter usually Woods) that Alcoa conspired to monopolize, attempted to monopolize, or monopolized the mining and transportation of natural gas from the Appling Field in Jackson and Calhoun Counties, Texas, and directed that the jury verdict in favor of Woods on this issue (the monopolization issue) be reinstated;
(ii) We reversed the district court’s entry of partial summary judgment for Alcoa on the claim of Woods that Alcoa filed false nomination forecasts with the Texas Railroad Commission in an effort to limit Woods’ production of natural gas from the Appling Field and remanded that issue (the false nominations issue) for trial;
(iii) We vacated the district court’s injunction prohibiting Woods from pursuing identical litigation in the state courts of Texas pending resolution of the false nominations issue on remand; and
(iv) We reversed the trial court’s exclusion of the issue of damages flowing from Alcoa’s alleged interference with Woods’ plan for construction of a liquid extraction plant in conjunction with Lumar Gas Pipe Line Company (hereinafter Lumar) and remanded for retrial only on the issue of damages flowing from the interference with the proposed extraction plant (the extraction plant issue).

On remand, Woods explicitly abandoned the false nominations claim, and the district court as to this issue entered a partial dismissal with prejudice. The district court reinstated the jury verdict for Woods on the monopolization issue and entered partial final judgment in Woods’ favor thereon pursuant to Rule 54(b), F.R.Civ.P. Finally, as we had directed, the trial court held a retrial limited to the issue of damages on the extraction plant issue. The retrial resulted in a jury verdict and award of damages in Woods’ favor, and the district court entered final judgment thereon.

Defendants Alcoa and others now appeal from the partial final judgment entered against them on the monopolization issue and from the final judgment against them on the extraction plant issue. For clarity, we treat the two issues separately.

I THE MONOPOLIZATION ISSUE

A. Partial Final Judgment Under Rule 54(b), F.R.Civ.P. Appellants argue that the district court improperly entered partial final judgment on the monopolization issue under Rule 54(b), F.R.Civ.P. because the suit below involved only one claim for relief, and partial judgment is barred under Rule 54(b). Appellees answer that the district court, in entering partial final judgment, did no more than follow the law of the case which we established in our prior opinion, 438 F.2d at 1316: “As to [the monopolization issue] the trial court may, if it wishes, render a partial final judgment under Fed.R.Civ.P. 54.” Appellants respond that since the Rule 54(b) issue was not before this court on the prior appeal, our authorization of the entry of partial final judgment cannot be considered the “law of the case” on this appeal.

We need not consider whether our earlier authorization of the entry of partial final judgment on the monopolization issue is the law of the case, nor need we decide the strict technical question whether the entry of such judgment was proper under the provisions of Rule 54(b), F.R.Civ.P. By our prior direction, the separate appeals from judgment on the monopolization issue and from judgment on the extraction plant issue were consolidated for purposes of oral argument and decision by the court. This consolidation served the underlying purpose of Rule 54(b), which is to prevent prejudice to the parties and unnecessary cost to the public by piecemeal appellate consideration of issues so intimately intertwined as to constitute but one claim. Wright & Miller, Federal Practice and Procedure: Civil § 2654, p. 54 (1973). Remand on this procedural point would be no more than an empty gesture in which we decline to indulge. We affirm the district court’s entry of partial final judgment on the reinstated jury verdict in favor of the plaintiffs on the monopolization issue.

B. Exclusion of Production Evidence. Alcoa strenuously urges that exclusion from the jury of evidence from two Texas Supreme Court decisions, Railroad Comm’n v. Aluminum Company of America, Tex.1964, 380 S.W.2d 599 and Railroad Comm’n v. Woods Exploration and Producing Co., Tex.1966, 405 S.W.2d 313, cert. denied sub nom. Aluminum Co. of America v. Woods Exploration, Inc., 1966, 385 U.S. 991, 87 S.Ct. 602, 17 L.Ed.2d 450 deprived Alcoa of the benefit of evidence from which the jury could have concluded that Alcoa and its associated appellants were incapable of monopolizing or dominating production and transmission of natural gas from the Appling Field. The evidence sought to be introduced was, in sum, that Alcoa’s ownership of approximately 90% of the surface land area in the Appling Field, because of the Va — % proration formula and the limited productive capacity of Alcoa’s large tract wells, did not necessarily support a conclusion that the defendants had the power to “control prices or exclude competition.” United States v. E. I. DuPont de Nemours & Co., 1956, 351 U.S. 377, 391-92, 76 S.Ct. 994, 1005, 100 L.Ed. 1264, 1278-79. Alcoa argues that such power is necessary as a prerequisite to a finding of a violation of § 2 of the Sherman Act, Title 15 U.S.C. § 2.

As pointed out by Woods, we need not consider this point further. It was fully examined and was disposed of by this court on the prior appeal in our ruling on the issue of whether the judgment n. o. v. was properly granted. We then expressed the view:

[W]e hold that the Appling Field clearly constitutes the relevant geographic market, and that the jury could find that defendants possessed sufficient power in that market to monopolize the production of natural gas. 438 F.2d at 1304.

We stated further:

Viewing the Appling Field as the relevant market, we think the jury was warranted in finding that defendants possessed monopoly power in that Field. Defendants contend first that the evidence demonstrates that plaintiffs in fact were able eventually to produce their production quota so that defendants’ lack of monopoly power is apparent. We disagree. While plaintiffs did eventually manage to produce their production quota, they incurred both increased expenditures and lost production due to defendants’ conduct. More important, we do not think that absolute success in excluding competition is an essential element to proving monopoly power under section 2. It is enough that defendants’ market position is such that they have substantial power to thwart competition. The defendants here and their alleged co-conspirators owned or leased approximately 90% of the Appling Field. Their holdings were so situated that they could block transportation from competing wells. We think that the jury could find on this state of the facts that defendants possessed monopoly power in the Appling Field within the meaning of the Act. (Emphasis added) 438 F.2d at 1307. •'

This language demonstrates that Alcoa’s claim is foreclosed by our prior opinion, which is binding on this panel. Cf. Gulf Coast Building & Supply Co., Inc. v. I.B.E.W., 5 Cir. 1972, 460 F.2d 105, 107.

C. The Admission of Pipeline Construction Cost Figures. Alcoa asserts that the trial court improperly allowed the jury to consider the $99,100 cost to Woods’ subsidiary, Southeastern Pipeline Co., to build a gas pipeline to transport gas out of the Appling Field. This undertaking of construction was occasioned by a refusal of Lavaca, an Alcoa subsidiary, to deal with Southeastern and by the refusal of Lumar to accept Woods’ gas for transmission in its pipeline. Alcoa urges that the initial cost of $99,100 for the pipeline was more than offset by profits in excess of $235,000 which Southeastern netted for transporting Woods’ gas for the years 1961 — 64. Alcoa concludes by asserting that damages and not costs are the essence of a section 2 violation and that Woods and Southeastern, far from being damaged by having to construct their own pipeline, actually profited from the venture.

Here again, we find our prior opinion to be dispositive. We stated there that we found the jury computation of damages flowing to Southeastern:

clearly supported by the evidence, consisting of (1) the cost of pipe which had been purchased by Southeastern to connect Woods’ wells to Lumar’s line, and which could not be used since Lumar refused to deal; (2) the unnecessary expense incurred by Southeastern in building a second pipeline running alongside the Lumar line; and (3) the loss by Southeastern of the sale of 16,000 m. c. f. of gas per day occasioned by six weeks’ loss of gas production due to Lumar’s illegally-inspired refusal to deal.
438 F.2d at 1309.

This issue is no longer open upon this appeal. Gulf Coast Building & Supply Co., Inc. v. I.B.E.W., supra.

D. Sufficiency of the Evidence. The Alcoa appellants next contend that the jury verdict finding that Alcoa prevented Wolcott (of Lumar) from signing a pipeline agreement with Woods is against the weight of the evidence and that a new trial is demanded on this crucial issue. The gist of Woods’ argument on this issue at trial concerned a clause in Lumar’s right-of-way agreement which required Lumar to obtain the permission of Mr. F. E. Appling before transporting a specific producer’s gas through the Lumar pipeline. Woods contended, and the jury found, .that Alcoa and its codefendant, Crown Central Petroleum Company (Crown) caused Appling to inform Wolcott that Lumar could not transport Woods’ gas through the Lumar pipeline. The appellants complain that their motion for a new trial on sufficiency grounds filed after the entry of partial final judgment on remand was erroneously denied by the trial court on grounds that this court had found the evidence sufficient to support the jury verdict. Alcoa complains that the trial court, based upon this assertedly erroneous assumption regarding our holding on the prior appeal, failed to discharge its duty to weigh the evidence independently in ruling on the new trial motion.

The Woods group counters that the Alcoa appellants, by failing to file a motion for new trial either (a) in the alternative at the time théy filed their motion for judgment n. o. v. or (b) as a protective measure within 10 days after the entry of judgment n. o. v. in their favor, waived the right to question the admissibility or weight of the evidence. The Woods group asserts that Alcoa’s new trial motion was not filed timely under Rule 50(c)(1), F.R.Civ.P. and that hence Alcoa is precluded from raising the sufficiency issue on appeal. The appellees further urge that even assuming arguendo that the motion was timely filed, the record of the proceedings after remand clearly demonstrates that the trial court carefully weighed the evidence and found it supportive of the jury verdict.

We perceive the appellees’ last-mentioned point to be well taken, and therefore we pretermit deciding whether Alcoa’s motion for new trial was timely under Rule 50(c)(1), F.R.Civ.P. The record on appeal indicates that the trial court upon remand denied Alcoa’s new trial motion only after carefully weighing the evidence. The trial judge stated in colloquy with Alcoa’s counsel:

But no one has pointed out to me the grievous error that the jury made, that there wasn’t any preponderance of evidence favorable to it.
******
I have [the two volumes of testimony from the trial] in my chambers back there and have read them two or three times. I couldn’t see why anything that was said in those statements, or that evidence, would require me to find that the jury — the preponderance of the evidence was the other way at all.
******
So if your reversal is based on propositions that I did not pass on that, you are in error because I did pass on that. And I thought, as did the Court of Appeals, that there was sufficient evidence to sustain the verdict. (App. 820-21, Appeal No. 72-2792).

We cannot say that this ruling constituted an abuse of discretion on the part of the trial judge, and we affirm the denial of the new trial motion alleging insufficiency of the evidence.

E. Computation of Interest. Alcoa’s last contention regarding the monopolization issue is that the trial court erroneously allowed interest on damages from October 10, 1969, the date of entry of the judgment n. o. v. in defendants’ favor, urging that the proper accrual date should instead be June 25, 1972, the date that partial summary judgment was entered in favor of the plaintiffs on remand from this court. The established rule is that computation of interest be made from the date judgment should properly have been entered for the plaintiffs. We affirm as to this issue. Cf. Louisiana and Arkansas Ry. Co. v. Pratt, 5 Cir. 1944, 142 F.2d 847, 849.

II THE EXTRACTION PLANT ISSUE

A. Exclusion of the Monopolization Issue. The Alcoa appellants argue that the trial court improperly excluded from the jury evidence as to the issue of antitrust liability on the trial of the extraction plant damages issue on remand. They claim that plaintiffs’ lawsuit was treated as one cause of action for some purposes and as several causes of action for other purposes, and assert that a retrial on all issues is the only fair way to accomplish complete justice in this suit. Woods counters that the only issue before the trial court on remand was the damages issue, specifically whether Woods’ subsidiary and co-appellee, Southeastern Pipeline Company, Inc. (Southeastern) “had the intention and the preparedness to construct an extraction plant;” and if so, the dollar amount of damages flowing from Alcoa’s interference with the construction of that plant.

Support for appellees’ position exists both in logic and in the law of the case as established in our prior opinion. First, we cannot agree that the extraction plant issue was so wholly separate as to require resubmission of the antitrust liability question to the jury on remand. The jury had found in the first trial that Alcoa and others had conspired “to monopolize [an] appreciable part of the trade and commerce of drilling for, producing, and transporting gas from the Appling Field.” (Emphasis added) This issue was disposed of when partial final judgment was entered after remand from the prior appeal.

It is clear that the building of the proposed extraction plant would have been incidental to the consummation of the pipeline agreement. Hence, the only monopolization issue was related to frustration of the pipeline agreement. Remaining for consideration by the jury on remand were only the questions: (a) whether Southeastern had the intent and preparedness to build the extraction plant jointly with Lumar and (b) whether Southeastern was damaged by frustration of the plans to build the plant, the frustration flowing from Alcoa and Crown’s interference with the pipeline agreement. In the first trial, these questions had been withdrawn from the jury’s consideration by the trial judge. The trial court recognized this when it stated in its unpublished memorandum opinion:

It seems plain that the contemplated joint extraction plant venture hinged on the arrangement permitting Southeastern to transport its gas through Lumar’s pipeline. In the previous trial the jury imposed antitrust liability on defendants for preventing the consummation of the pipeline agreement between Lumar and Southeastern. In this factual context the argument that the monopolization found to exist by the first jury is so unrelated to the extraction plant claim as not to provide any basis for such claim must be rejected. Plaintiff Southeastern has won its case by convincing the jury that defendants interfered with an extraction plant agreement, that this injury was to Southeastern’s business and property, and that the injury was proximately caused by the defendants’ monopolization of the trade or commerce or transporting, drilling for and producing gas as established by the prior jury verdict. (App. at 123, Appeal No. 73-1633)

We agree. The issue on remand was properly limited to the issue of damages flowing from the Alcoa appellants’ alleged interference with the construction of the liquids extraction plant through their concerted activity.

In this connection, it was not error to instruct the jury as to the verdict reached by the first jury in the original trial of case on the monopolization issue. It was necessary for the jury in the second trial to be informed of the outcome of the prior litigation, since the resolution of the issue before it presumed the earlier findings. The claim that such instruction was error is without merit.

B. Exclusion of Expert Testimony. Alcoa next argues that it was error to exclude testimony of its handwriting expert to the effect that Wolcott’s signature on the proposed pipeline contract between Southeastern and Lumar was not genuine. Inspection of the record discloses that the jury was adequately apprised that the signature on the pipeline agreement was not Wolcott’s by the reading of the verdict of the jury in the original trial. By answer to Question Number 4 of that verdict, the prior jury found specifically that Wolcott had not signed the proposed agreement.

C. Jury Instruction 32. Alcoa contends that the giving of Southeastern’s Requested Instruction No. 32 to the jury was error under Rule 49, F.R.Civ.P. since it related to no issue submitted to the jury under the special verdict procedure invoked in this case. The instruction objected to was as follows:

32. You are instructed that under the antitrust laws individual action taken by defendants before the Railroad Commission of Texas and in the courts cannot be considered as evidence against them ... A person individually is privileged under the United States Constitution to take any and all such actions. You are instructed, however, that persons, including corporations, may not combine for the purpose of using governmental agencies and the courts as a means to harass and deter competitors in furtherance of their monopoly. Acts which are in themselves legal lose their character when they become constituent elements of an unlawful scheme. (App. p. 95, No. 73-1633)

Contrary to this contention, we view Requested Instruction 32 as clearly related to the question of Southeastern’s preparedness to go forward with construction of the proposed extraction plant. One of Alcoa’s theories at trial was that the extraction plant was not economically feasable at the time its construction was proposed, because, at that time, Alcoa and others were challenging in Texas courts the legality of the Vz-Va proration formula and the Railroad Commission ruling allowing multiple completions on Woods’ small town-lot wells. In the face of this litigation, Alcoa argued, Southeastern would have been unable to secure financing for construction of the proposed extraction plant.

Requested Instruction No. 32, therefore, informed the jury that the legal challenges to the Va — 2/a formula and the multiple completions allowances might be viewed as part of the overall conspiracy. If the jury took this view, then the economic impossibility of obtaining financing would be traceable to the monopolization effort, and Alcoa would still be liable for damages. In this perspective, the instruction was not improper. Appellants’ other contentions regarding the giving of Requested Instruction No. 32 are without substance.

D. The Sufficiency of the Evidence. Alcoa next contends that the jury’s critical findings (i) that Southeastern had the intent and preparedness to go forward with the proposed extraction plant and (ii) that Alcoa and its co-defendants by their actions frustrated Southeastern’s plans are against the great weight and preponderance of the evidence. The sufficiency of the evidence issue was squarely before the district court on Alcoa’s motion for new trial. The district court, in denying that motion, stated:

The claim of insufficient evidence has no substance. The evidence was strong — though conflicting — that the plaintiffs were ready, willing and able to participate in the extraction plant project. The Court gave the defendants wide latitude in trying to convince the jury that the allowables were not sufficient to run an extraction plant profitably; that plaintiffs could not secure the money necessary to go through with the project because of lawsuits attacking the Vs — % rule as well as their financial status; and that plaintiffs’ testimony, especially Woods’, was not credible on the second trial because their testimony at the first trial that Fred Wolcott’s signature on the proposed pipeline contract was genuine was impeached by the first jury’s verdict. Still the jury decided against the defendants on all of these issues. App. pp. 135-36, No. 73-1633.

The established standard under our decisions for review of the denial of a new trial motion alleging insufficiency of the evidence is whether the trial court has clearly erred in denying the motion, the principle being referred to in most of our cases as “abuse of discretion”. United Broadcasting Co. v. Armes, 5 Cir. 1975, 506 F.2d 766; Faircloth v. Lamb-Grays Harbor Co., Inc., 5 Cir. 1972, 467 F.2d 685, 697; Powell v. McIntire, 5 Cir. 1969, 415 F.2d 333. Careful study of the record in this case reveals no violation of the governing standard by the trial court. We discern no error in its ruling.

E. Damages. Alcoa argues that Southeastern’s hypothetical profits from the proposed extraction plant planned ' with Lumar were too speculative to form a sound basis for a jury computation of damages. Our review of the record discloses that Southeastern introduced competent evidence relating to its probable profits from the proposed extraction plant. While some questions were raised as to the mathematical precision with which these future profits could be determined, this in itself will not suffice to exclude such calculations from the jury’s consideration. As we státed in Lehrman v. Gulf Oil Corp., Cir. 1972, 464 F.2d 26, 45, cert. denied 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665:

Gulf also protests the “speculative” testimony of Ernest Brown and urges us to hold this testimony an inadequate basis for assessing Lehrman’s damages. But Gulf merely protests application of the familiar rule that a wrongdoer is responsible for uncertainty in calculating the damages proximately caused by his own wrongdoing. * * * Once it is apparent that damages must be assessed so as to approximate the future profits of a business, a court and jury necessarily enter into the realm of the imprecise and the uncertain. Particularly is the calculation of damages difficult when the future profits of an enterprise as young as Lehrman’s must be determined, since there is no reliable track record to look back on. But uncertainty cannot end the efforts of the federal courts to redress the harm caused proprietors by violations of the freedom of the marketplace. The wrongdoer must bear the risk of the uncertainty in measuring the harm he causes. Bigelow v. RKO Radio Pictures, Inc., 1946, 327 U.S. 251, 265, 66 S.Ct. 574, 90 L.Ed. 652; Story Parchment Co. v. Paterson Parchment Paper Co., 1931, 282 U.S. 555, 566, 51 S.Ct. 248, 75 L.Ed. 544.

The basis for the damage award in the instant case was not impermissibly imprecise, under the teachings of Lehrman and the cases there cited. Alcoa’s argument in this regard is rejected.

F. Woods’ Cross Appeal as to Damages. Woods asserts that the jury was improperly instructed to deduct from its award the amount that appellees would have had to pay as corporate income taxes on amounts constituting lost income from the proposed extraction plant. But Woods further urges that the judgment be affirmed if reformation of the jury verdict in this respect would require a remand for re-computation of damages by yet another jury. The separate components included by the jury in reaching its money award of $352,223.04 are not now ascertainable. We conclude that correction of the verdict would require such re-submission assuming arguendo its incorrectness as it now stands. See New Orleans and Northeastern R.R. Co. v. Hewett Oil Co., 5 Cir. 1965, 341 F.2d 406, 410. Accordingly, we pretermit discussion of whether the jury should or should not have been instructed to reduce its award by deduction of an estimated amount of corporate income taxes thereon, and affirm as to the cross appeal.

The judgments appealed from are in all respects

Affirmed.

      . Appling owned certain lands in Jackson and Calhoun Counties over which Lumar had obtained easements to construct its pipeline. See the district court opinion at 304 F.Supp. 848-49.

      . See infra, pages 791, 792 of text, subsection D. Sufficiency of the Evidence, and Note 3 thereto, (under Part II commencing page 789, The Extraction Plant Issue) for a discussion of the Fifth Circuit “abuse of discretion” standards governing review of the denial of motions for new trial alleging insufficiency of the evidence.

      . For a discussion of the policies underlying the scope of appellate review of orders denying or granting new trial motions and of the distinctions between the two, see, for example, Massey v. Gulf Oil Corp., 5 Cir. 1975, 508 F.2d 92 (1975); Taylor v. Washington Terminal Co., 1969, 133 U.S.App.D.C. 110, 409 F.2d 145, 147 — 49, cert. denied 1969, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 85; Lind v. Schenley Industries, Inc., 3 Cir. 1960, 278 F.2d 79, 88-90 (en banc), cert. denied 1960, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60. As Judge Godbold pointed out in Massey, supra:
      [T]he operative factors underlying review of a ruling on a new trial motion are deference to the trial judge, who has had the opportunity to observe the witnesses and to consider the evidence in the context of a living trial rather than upon a cold record, deference to the jury’s determination of weight of the evidence and quantum of damages, and the constitutional allocation to juries of questions of fact. We noted [in Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033, 5 Cir. 1970] that where the judge denies the motion and leaves undisturbed the jury’s determination, all factors press in the direction of leaving the trial judge’s ruling undisturbed. But where the judge has granted a new trial, the factors oppose each other. Deference to the trial judge is subjected to opposing tensions of deference to the jury as the body to whom fact finding is constitutionally allocated and deference to the decision which the jury has reached pursuant to that authority. Furthermore, where a new trial is granted on the ground that the verdict is against the weight of the evidence, we exercise closer scrutiny than where the ground is that some undesirable or pernicious influence has intruded into the trial, because to an extent the judge has substituted his judgment of the facts and credibility of witnesses for that of the jury. Thereby we protect the litigants’ right to jury trial. 508 F.2d page 94.
      So it is in the instant case.

      . This evidence included, inter alia, (i) figures representing the amount of gas which would have flowed through the extraction plant from the time of its beginning operation in September 1961 until the time suit was filed in January 1966; (ii) the quantity of liquids which would have been present in the gas and available for extraction; (iii) the amount of liquids which would have actually been extracted by the proposed plant; (iv) the selling price of the liquids over the relevant period; less (v) the cost of transporting the liquids to market and (vi) the cost of building and operating the plant. Evidence was also introduced based upon the operation of an extraction plant which was actually built on the Lumar pipeline.

      . Our opinion on- the second appeal in Lehrman, from the proceedings following remand appears at 500 F.2d 659 (5 Cir. 1974). The discussion there, part IV, pages 667-670 of 500 F.2d, of damages arising from antitrust violations, is helpful and generally supportive of our holding in this case.

      . By the trial court’s giving of Alcoa’s Requested Instruction No. 29:
      29. If you reach and consider the issue of damages submitted to you, you are instructed in connection therewith that under the law the amount of actual damages sustained by plaintiff, if any, by reason of any violation of the antitrust laws would not be subject to federal income tax. Plaintiff Southeastern Pipeline Company bases its claim of damage on the amount of net profit before federal income taxes which it claims it would have made if it had participated with Lumar Gas Corporation in the construction and operation of a gasoline extraction plant on the Lumar line. Any such net profit would have been subject to federal income taxes. Therefore, the amount of federal income taxes should be deducted from the figure of net profits before income taxes arrived at by you in determining any actual damages sustained by plaintiff Southeastern Pipeline Company.


author: DYER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Edward Henry ASHDOWN and Charles E. Graham, Jr., Defendants-Appellants.
    No. 73-3020.
    United States Court of Appeals, Fifth Circuit.
    March 17, 1975.
    Rehearing and Rehearing En Banc Denied April 17, 1975.

      George Milman, for Graham.
    Donald M. Re, Beverly Hills, Cal., for Ashdown.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ralph E. Harris, Asst. U. S. Atty., El Paso, Tex., Robert G. Clark, Sp. Atty., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   DYER, Circuit Judge:

Graham and Ashdown appeal their convictions for securities fraud under 15 U.S.C.A. § 77q(a) and mail fraud under 18 U.S.C.A. § 1341. We affirm.

Both were convicted on ten counts of an eleven-count indictment. All counts involve and incorporate by reference the basic scheme, outlined in Count 1. Graham and Ashdown were charged with employing a scheme to defraud in the offer and sale of common stock in Mountain State Development Co. (Mountain). Counts 1 — 8 (excluding count 5) each charge specific sales and mailings in violation of 15 U.S.C.A. § 77q(a), fraud in the offer or sale of securities by use of the mails. Counts 9, 10, and 11 incorporate the same scheme, but charge specific mailings in violation of the mail fraud statute, 18 U.S.C.A. § 1341. Thus, proof of a mailing in furtherance of the scheme is an element of each count.

Graham was the architect of the multi-faceted scheme. In July, 1967, he bought a controlling interest in Mountain, the stock of which had an “assessability” feature. The next day, at Graham’s instance, Mountain entered into a contract with Graham Oil Company, of which Graham was the general managing partner, to purchase certain oil properties. An assessment of ten cents per share was levied in January, 1968, ostensibly to finance the purchase of the Graham Oil Co. properties. However, some of these properties were subject to prior assignments and liens, a fact which was never disclosed to the shareholders. Mountain received $290,000 from this assessment.

In the same summer, 1967, Mountain acquired two other properties: one, an oil property in Kern County, California, known as the Jones Lease, and the other a small battery company, Laser Power Industries (Laser). Mountain shareholders were informed of these acquisitions by letter.

In the following May, 1968, Mountain sold the assets of Laser to the city of Deming, New Mexico, under an “Industrial Revenue Project.” The city used such projects to encourage industrial growth by buying the assets of a company and then leasing them back to an operating company which was to pay substantial rentals to the city. The city in turn would retire the bonds and interest out of that revenue.

The deal between Mountain and the city of Deming was closed on May 14, 1968. Under their arrangement, Mountain sold the assets of Laser to Deming in return for industrial revenue bonds. The Laser assets including equipment, inventory, goodwill, and patents, were then leased to a newly-formed Mountain subsidiary, Laser Power Industries of New Mexico (Laser New Mexico), which was to build a battery plant in Deming and be the operating company. Mountain also assigned the Jones Lease to Laser New Mexico to “reasonably insure” the success of the project.

The important feature of these industrial bonds is that the city incurs no liability whatsoever. If the operating company does not build a plant and operate it in Deming, the revenue bonds have absolutely no value. Yet they were listed in the 1967 Annual Report as “marketable securities.” The shareholders were never informed of the city’s very limited obligation.

Mountain was headquartered in El Paso, Texas, Graham’s home town. It also maintained a Los Angeles office, with which Edward Ashdown became associated in the fall of 1967, and of which he became “office manager” sometime after the first of the year, 1968. It was at this point that Ashdown became an active participant in the scheme.

The day after the deal between Mountain and Deming was closed, May 15, 1968, Graham and Ashdown transferred controlling interest in Laser New Mexico to Manhattan West Corporation, a small corporate venture. However, a shareholder letter and the annual report, both issued subsequent to the deal, listed both the Jones Lease and Laser as assets of Mountain. The Manhattan West deal was never disclosed.

In July, 1968, Mountain bought certain mining claims in Honduras. Graham and Ashdown went to New York where they engaged a public relations specialist to prepare a press release concerning the Honduran property. The release, prepared and made public August 8, stated that Mountain held claims in Honduras and that “independent engineering surveys and test cores drilled in one ten-mile span of river of the working area are assayed to contain recoverable precious metal of gold and silver valued in excess of $25 million.” The reports on which this estimate was apparently based, later subpoenaed by the SEC, pertained to an entirely different river, and at any rate, did not justify the named figure.

The primary misrepresentations concerning the Deming bonds, the Laser assets, and the Honduran claims, were made in the 1967 annual report, which was distributed in mid-July, 1968, and the August, 1968, press release. Graham was primarily responsible for the preparation of the report, but Ashdown took an active part in its distribution. Both participated in the preparation of the press release. Both Graham and Ash-down traded heavily in Mountain stock, especially after the issuance of the annual report in mid-July and the August 8 press release. Much of Graham’s selling was done through nominee accounts by a broker, Poulsen, in Salt Lake City. Both defendants touted the company and the stock to numerous witnesses.

Each defendant claims that, with regard to him, the evidence was insufficient to sustain his conviction. We find on the contrary that there was ample evidence to support the jury’s finding that there was a scheme to defraud, that both defendants participated in the scheme, and that the mails were used in furtherance of the scheme. Indeed, the evidence was overwhelming.

Apart from the question of sufficiency of the evidence as to each, the defendants raise identical claims. Many of their assertions of error are without merit. Those which we deem worthy of discussion will be treated as to both Graham and Ashdown.

I. VENUE

Although at trial, . Ashdown moved for severance and a transfer to Los Angeles on the grounds of inconvenience and “in the interests of justice,” defendants are here asserting that El Paso was a constitutionally improper venue. They claim that the only connection shown with Texas was the mailing of the annual report, and that the proof was insufficient to indicate that the mailing had anything to do with the scheme. However, the annual report and the misrepresentations it contained were a central part of the scheme. Furthermore, there were a great many other evidentiary connections with El Paso. It was Graham’s home. Poulsen, the Salt Lake stock broker, mailed numerous notes regarding the nominee trading he was conducting to Graham in El Paso. He mailed checks to Graham which were deposited in El Paso banks. Graham maintained the headquarters office of Mountain in El Paso. Books were kept there; employees were paid there; the annual report was edited, printed, and mailed from there. In addition, some of the defrauded purchasers resided there. The Constitution requires that the trial shall be held in the state and district wherein the crime was committed. If there was any one scene of this crime, it was Texas.

II. STATUTE OF LIMITATIONS

The scheme alleged in the indictment covered roughly the period from January 1, 1967, through December 31, 1968. The indictment was returned March 30, 1973. The parties agree that the five-year statute of limitations period of 18 U.S.C.A. § 3282 applies. Count 1 of the indictment, which outlines the scheme, includes several incidents which occurred prior to the limitations period. Graham and Ashdown assert that the jury might have based its guilty verdict on one or more of those acts occurring prior to March 30, 1968, evidence of which they contend was inadmissible. In this contention, they misperceive the law.

The statute of limitations is a defense to prosecution, not a rule of evidence. Therefore, once prosecution is timely instituted, the statute of limitations has no bearing on the admissibility of evidence. It would be a bizarre result indeed if a crime properly prosecuted within the limitations period could not be proven because an essential element, such as intent, could only be established by proof of incidents occurring outside the period.

Here, the evidence which the defendants question helps establish the scheme and the guilty intent. But the crimes alleged in every count are mailings in furtherance of the scheme. All of these mailings occurred within the statutory period; hence, there is no limitations problem. One on-going conspiracy is alleged. Although it began outside the limitations period it ended well within it. It is proper for the jury to infer one conspiracy starting before and ending after the statute of limitations period. United States v. Seuss, 1 Cir. 1973, 474 F.2d 385, cert. denied, 412 U.S. 928, 93 S.Ct. 2751, 37 L.Ed.2d 155. Under similar circumstances, the Tenth Circuit found no statutory bar. In that case, a six-count mail fraud, the defendant made fraudulent representations in advertising letters and circulars. As in this case, the court admitted proof of transactions and events occurring more than five years prior to the indictment. Furthermore, in this case, as in United States v. Blosser, 10 Cir. 1971, 440 F.2d 697, “all uses of the mails shown to prove the offenses charged occurred within the period of the statute of limitations.” Id. at 699. The evidence “bore on the existence of the scheme to defraud, the falsity of representations made, and intent.” Id. Therefore, if the prosecution is timely with respect to the mailings alleged,

[i]t is no defense that the scheme was formed earlier, and proof running back of the statute is admissible to show the scheme and intent if it is connected up with the scheme existing when use of the mails occurred.

Id. See also United States v. Brandom, 8 Cir. 1973, 479 F.2d 830, 831 n. 1. This Court has held that it is not the scheme to defraud, but the use of the mails to execute the scheme which constitutes the offense. Munch v. United States, 5 Cir. 1928, 24 F.2d 518, 519. Thus the prosecution here was timely, as it was within five years of each mailing alleged.

Therefore, there is no merit in the argument that it was error to admit evidence of acts committed beyond the statute of limitations period where the mailing offenses all occurred within the period and the evidence admitted helps establish the scheme.

III. THE MAILINGS

Graham and Ashdown raise numerous claims with respect to the various mailings alleged in the indictment. These claims fall into two general categories: 1) whether the mailings were adequately proven, and 2) whether the mailings were sufficiently related to the scheme to provide a federal jurisdictional base. The mailings variously involve a bulk mailing of the annual report, the mailing of stock certificates and confirmations of purchase, and individual mailings of the annual report after stock was purchased.

A. PROOF OF MAILING

Counts 1 — A allege that individual investors received copies of the 1967 annual report which was mailed in bulk from El Paso to the Mountain office in Los Angeles. Defendants claim that the mailing was not proven. However, there is ample evidence upon which a jury could find that such a mailing was made. The reports were printed in El Paso and delivered to the El Paso office. The secretary testified that they were distributed by mail at Graham’s direction. The secretary in the Los Angeles office testified that they received “a couple of stacks” of the reports in the mail for distribution. This evidence leaves little doubt that a package of the reports was mailed from El Paso to Los Angeles. The Los Angeles office, under Ashdown’s direction, distributed (in most cases, mailed) individual eopies of the report to the investors named in Counts 1-4. Thus, the proof of mailing on these counts was entirely adequate.

B. JURISDICTION

Defendants next contend that the mailings are not sufficiently related to the scheme to defraud to provide jurisdiction. In Counts 6 — 8, the named investors received either stock certificates or confirmations of stock purchase through the mail. Counts 9 — 11 allege specific mailings of the annual report which occurred after the initial stock purchases. Defendants challenge these various mailings as insufficient to confer jurisdiction either because reliance by the investor was not shown, or because mailings after the stock sale could not be “for the purpose of executing” the scheme. Both of these arguments fail.

Specific reliance by the investor need not be shown in a prosecution under 15 U.S.C.A. § 77q(a). Rather, what must be shown is that the scheme had an impact on the investor and that the mails were used in employing the scheme. The Seventh Circuit case on which defendants rely states the proper standard:

[T]he government must show some impact of the scheme on the investor and that the mails were used in those instances where the impact occurred. The mail must be used in employing the scheme however incidental the mailings may be.

United States v. Schaefer, 7 Cir. 1962, 299 F.2d 625, 629 — 30. This standard does not approach a “reliance” requirement.

Here, mailing was a basic part of the scheme. There was ample evidence of the impact of the scheme on the investors in Counts 6 — 8 to support the guilty verdict. Each received stock certificates or confirmations of purchase in the mail; such a mailing provided the jurisdictional base in McDaniel v. United States, 5 Cir. 1965, 343 F.2d 785. This Court stated in that case that such a use of the mails was “not a mere incidental use” but was an “integral part of the transaction.” Id. at 787. Furthermore, the testimony of each investor contained sufficient evidence of the scheme’s impact on him to support the jury’s verdict on these counts. Each was influenced either by the misleading shareholder literature, including the annual report, or by Graham’s representations, both direct and indirect.

Counts 6-11 are all challenged because the mailing involved occurred after the purchase of stock. As we have already noted, the mailings in Counts 6 — 8 are sufficiently connected with the scheme under McDaniel, supra. Counts 9 — 11, charging mail fraud under 18 U.S. C.A. § 1341, were all predicated upon mailings of the annual report. Each investor in these three counts had already purchased stock before receiving the offending mailing. However, it is a well-established principle of mail fraud law that use of the mails after the money is obtained may nevertheless be “for the purpose of executing” the fraud.

The Supreme Court considered this question in United States v. Sampson, 1962, 371 U.S. 75, 83 S.Ct. 173, 9 L.Ed.2d 136, in which salesmen fraudulently obtained applications and advance payments from businessmen and then mailed acceptances to the defrauded victims to lull them into believing the service would be performed. The Court held that such a “lulling” use of the mails was for the purpose of executing the fraudulent scheme. There, as here, the whole scheme contemplated fraudulent activities both before and after payment was received. There is no rule that the money must change hands after the mailing.

The Court recently phrased the test as “whether these mailings were sufficiently closely related to respondent’s scheme to bring his conduct within the statute.” United States v. Maze, 1974, 414 U.S. 395, 399, 94 S.Ct. 645, 648, 38 L.Ed.2d 603. Although in Maze, a credit card fraud, the Court found the mailing insufficient, in doing so, it re-affirmed Sampson. Thus, post-purchase mailings which are designed to lull the victim into a false sense of security, postpone inquiries or complaints, or make the transaction less suspect are mailings in furtherance of the scheme. United States v. MacClain, 10 Cir. 1974, 501 F.2d 1006, 1012; see also United States v. Miles, 8 Cir. 1973, 483 F.2d 1372; United States v. Strauss, 7 Cir. 1971, 452 F.2d 375, 380, cert. denied, 1972, 405 U.S. 989, 92 S.Ct. 1252, 31 L.Ed.2d 455; United States v. Porter, 8 Cir. 1971, 441 F.2d 1204, 1211.

In this case, each of the investors named in Counts 9 — 11 testified as to the “lulling” effect of the mailing. Receipt of the annual report in the mail was to each a factor, or the significant factor, in his retaining the stock in the belief (later proven false) that he had made a good investment. The lulling mailing was an entirely sufficient jurisdictional base', and the evidence entirely sufficient for conviction on these counts.

IV. SENTENCES

Both defendants were found guilty on all ten counts submitted to the jury. Graham received a five-year sentence on Count 1, plus five years for each remaining count to be served concurrently, for a total of ten years imprisonment. Ashdown also received a five-year sentence on Count 1, but only two years concurrently for each remaining count, for a total of seven years imprisonment. Both Graham and Ashdown argue that because one conspiracy is charged and incorporated in all counts, in effect one crime has been committed carrying a maximum sentence of five years, and the sentences should therefore be merged. This argument, too, must fail.

This Court has considered essentially the same question in Sanders v. United States, 5 Cir. 1969, 415 F.2d 621, cert. denied, 397 U.S. 976, 90 S.Ct. 1096, 25 L.Ed.2d 271. That case, too, concerned multiple counts of both mail and securities fraud. In addition, the indictment contained a separate conspiracy count. The defendant in Sanders urged that all the counts alleged but one crime with a maximum sentence of five years. This Court, however, noted that it is well settled that each separate use of the mails constitutes a separate offense and that consecutive sentences may be imposed for the substantive crime and conspiracy. Id. at 626.

In this case, that position is even stronger, because no conspiracy was charged. It avails defendants nothing that the same scheme is incorporated in each count; they were convicted of ten separate offenses based on ten different transactions. Sanders v. United States, supra; United States v. Austin, 10 Cir. 1972, 462 F.2d 724, 737-38; United States v. Amick, 7 Cir. 1971, 439 F.2d 351, 359; see also Pereira v. United States, 1954, 347 U.S. 1, 11, 74 S.Ct. 358, 98 L.Ed. 435; Johnstone v. United States, 5 Cir. 1969, 418 F.2d 1094; Milam v. United States, 5 Cir. 1963, 322 F.2d 104, 109.

V. OTHER ERRORS

Defendants challenge the court’s failure to instruct on a variety of issues. However, the court specifically invited objection to its jury charge but none was made; furthermore, when either Graham or Ashdown sought special limiting instructions, the court repeatedly inquired whether its instructions “satisfied” defense counsel and was assured that they did. Thus, absent plain error, the instructions must stand. Even were we to assume there was error, which we do not, there is without question nothing in the instructions which rises to the level of plain error.

These defendants have leveled a scatter-gun attack on appeal. Other errors asserted include ineffective assistance of counsel, prosecutorial misconduct, lack of confrontation, and prosecution under the wrong section of the statute. We have considered these and find them wholly without merit, even frivolous. When the attack is closely examined, the points raised appear to be an amalgam of tenebrous theory and ingenious casuistry. These cannot be parlayed into a reversal.

Affirmed.

      . The court directed a verdict of acquittal on ( violation of 15 U.S.C.A. § 77q. unt 5 which alleged a telephone conversation in

      . Our review of the record discloses no objection made and no defense raised on the basis of the statute of limitations.


author: JOHN R. BROWN, Chief Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. CERTAIN PARCELS OF LAND Situate IN MONROE COUNTY et al., Defendants, Keytel, Inc., Defendant-Appellant.
    No. 74-1059.
    United States Court of Appeals, Fifth Circuit.
    March 14, 1975.

      Anne C. Booth, Tallahassee, Fla., Toby Prince Brigham, Miami, Fla., for defendant-appellant.
    Charles F. MacMillan, Wallace H. Johnson, Jacques B. Gelin, Atty., Dept, of Justice, Washington, D. C., Robert W. Rust, U. S. Atty., Miami, Fla., Edward J. Shawaker, Atty., Dept, of Justice, Washington,, D. C., for plaintiff-appellee.
    Before BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

The landowner seeks a new trial in this condemnation action brought by the Government to acquire land for a Coast Guard search and rescue facility to serve the middle and upper Florida Keys. Primarily, the property owner would have us conclude that the District Judge was clearly in error when he found that the lots were zoned for single-family (RU-1) rather than commercial (RU — 3) use. After surveying the testimony and documentary evidence, we are convinced that the property was commercially zoned RU-3 as a matter of law and we reverse.

The condemned two and a quarter acre tract is located on Plantation Key, Monroe County, Florida adjacent to the Overseas Highway, U.S. 1, which connects Key West with the southern end of the Florida peninsula. In addition to its immediate deep water access-, the absence of mangrove thickets, the up-to-grade quality of land — eliminating any need for land fill — the availability of docks and an extensive seawall allow the trier of -fact on valuation to conclude that this particular land has exceptional quality. Illustrative of the point is the testimony by one witness for the property owner that these combined attributes make estimating the value of the property difficult because there are no comparable pieces of property remaining in the Keys that have been offered for sale.

The property owner, Keytel, Inc., a corporation whose principal stockholders are military personnel, purchased this property in 1958 for the express purpose of commercial development. At that time no zoning restrictions were imposed but deed restrictions placed on the property by the developer in 1957 limited the use of this tract to single-family dwellings. However, in 1959 these deed restrictions were modified by an addendum to the restrictions which stated that the original restrictions had inadvertently omitted a declaration stating that this particular tract was available for apartment, duplex or motel development.

In 1960 county-wide zoning, adopting the existent deed restrictions, was imposed by the Monroe County Zoning Board. The official zoning records of Monroe County show that the original and present zoning of the county is RU - 3 allowing hotel and motel use. Zoning categories are shown by a color coding system and the RU-3 designation in yellow shows up vividly on the county plat.

All parties initially stipulated as to the commercial zoning of the property but the Government repudiated this pretrial stipulation and obtained an order from the District Judge directing that the value of the property would be determined on the basis of single-family restrictions.

To support its case on appeal the Government cites two documents. These are two letters, one dated July 15, 1971 from the then director of the Monroe County Building & Zoning Department stating that the land was RU-1 and the second document, dated May 2, 1973, was an almost identical letter from his successor, Kermit Lewin. Ironically, the stipulation of commercial status (see note 1, supra) preceded the most recent letter. In addition, to these two letters, the Government maintains that this single-family designation was supported by the layout of the subdivision, the residential nature of neighboring tracts, and “the fact that the property would seem to be zoned RU-1 except for certain yellow crayon marks.” The Government insists that since no one testified as to who specifically colored in the subject property on the map or when, the zoning designations on the official records of Monroe County should be disregarded.

The difficulty we have with this case is not one of law. That is well settled. It is the province of the trial judge to decide all issues, legal and factual, save only for the question of just compensation. F.R.Civ.P. Rule 71A(h). See United States v. Reynolds, 1969, 397 U.S. 14, 90 S.Ct. 803, 25 L.Ed.2d 12 for a discussion of the operation of the rule in the “scope-of-the-project” context. And we are bound by F.R.Civ.P. Rule 52(a) to give utmost consideration to the findings of the trial judge. However, we cannot understand how the Government intractably persisted in its argument in the face of the repudiation by Director Lew-in of his own letter of May 2, 1973 as well as the unambiguous representations of the official zoning documents of Monroe County.

On May 18, 1973 soon after his initial erroneous May 2 letter, Director Lewin wrote again to the Coast Guard attorney correcting his mistake. Appellant offered Director Lewin’s testimony both as to the issue of the mistaken letter and as custodian of the official records, but this testimony was circumscribed closely by the trial judge. Conversely, no evidence was offered by the Government to undermine the authenticity of these documents and, while it is true that the District Judge was not bound by the final decree in the state court action, a determination of the development rights as between all of the adjacent land owners, especially one consistent with the county records, was strong confirmation of the status as reflected by the official records. In addition, there is the fact that the Coast Guard long prior to the condemnation action had leased portions of this very property from appellant for uses which would violate the RU-1 ■ restrictions the Government now asserts.

But we do not place the error on F.R.Civ.P. 52(a) and the trial judge’s findings of fact, but rather on his rejection of conclusive evidence. The testimony of Lewin, the official custodian, and the uncontradicted testimony that the plat with the zoning colors was both the official record and reflected RU -3 status were admissible under both 28 U.S.C.A. § 1732 (the Business Records Act) and 28 U.S.C.A. § 1738 (state records to be given full faith and credit once authenticated). And it was not for the Judge to disparage or discredit them because there was no proof of who did the coloring. The statute eliminates that anachronism. See generally, Louisville & Nashville R. R. Co. v. Knox Homes Corp., 5 Cir., 1965, 343 F.2d 887, 895; Missouri Pacific R. R. Co. v. Austin, 5 Cir., 1961, 292 F.2d 415, 422; cf. United States v. Blake, 5 Cir., 1973, 488 F.2d 101, 104-105.

On oral argument, the Government made the alternative argument that even if the trial judge was incorrect in his assessment of the zoning status, the $140,000.00 awarded appellants by the jury was unaffected by this decision. For example, the Government points to the testimony by expert witnesses that the commercial value of the property would be limited because it was only a two and a quarter acre tract. Nevertheless, we remain convinced that the case should be returned for a new trial on the issue of valuation as RU-3 property because we have no way of knowing how the jury arrived at this figure, operating as they were under such severe limitations imposed by the trial judge. All expert testimony on the issue of commercial value given by appellant’s witnesses was filtered through to the jury under the Judge’s determination that it was RU-1 property and the only opening for higher valuation was the possibility — but just a possibility — that the property might be rezoned to commercial. Appellant is entitled to a trial without laboring under the burden that the property was not what it was — commercially zoned.

Reversed and remanded.

      . The initial stipulation took place on February 21, 1973. Thereafter on May 3, 1973 the Government moved to amend the stipulation based especially on the Lewin letter of May 2.


author: PER CURIAM:

text:
    Thomas C. LILES, Plaintiff-Appellant, v. RIBLET PRODUCTS OF LOUISIANA, INC., et al., Defendants-Appellees.
    No. 74-1353.
    United States Court of Appeals, Fifth Circuit.
    March 14, 1975.
    Troy E. Bain, Shreveport, La., for plaintiff-appellant.
    Benjamin C. King, Shreveport, La., for defendants-appellees.
    Before TUTTLE, WISDOM and GOLDBERG, Circuit Judges.
   PER CURIAM:

This diversity tort action is the result of a Louisiana highway accident. Larry Larkin, an employee of Riblet Products of Louisiana, was at the wheel of his company’s flatbed truck, when it ran into the rear end of an automobile driven by Thomas C. Liles, an employee of State Line Escort Service. Liles is a citizen of Louisiana. Riblet Products and its liability insurer, American Employers Insurance Company, are, respectively, Indiana and Massachusetts corporations.

Riblet Products is engaged in the manufacture, sale, and delivery of mobile home frames twelve or fourteen feet wide. Vehicles transporting loads more than twelve feet wide, under Louisiana law as implemented by the state’s director of highways, must be accompanied by a properly equipped escort vehicle. Riblet Products generally does not use its own employees or escort vehicles for this purpose but engages the services of escort companies. At the time of the Liles-Larkin accident, Riblet Products had entered into a verbal agreement with State Line Escort Service for the required escort.

Liles contends that in the accident he sustained serious injury necessitating' surgery on his back. He brought this suit against Riblet Products, as Larkin’s employer, and against American Employers Insurance Company, as Riblet Products’ insurer, alleging Larkin’s negligence as the cause of his injuries. The defendants filed a motion for summary judgment on the ground that Riblet Products was the “statutory employer” of Liles under the Louisiana Workmen’s Compensation Statute; that, consequently, Liles’ exclusive remedy was against Riblet Products and its insurer for workmen’s compensation. The district court granted the motion.

The district court did not err in concluding that Riblet Products was, as a matter of law, a “principal” under L.S.A. R.S. 23:1061. See, e. g., Arnold v. Shell Oil Co., 5 Cir. 1969, 419 F.2d 43; Isthmian Steamship Company of Delaware v. Olivieri, 5 Cir. 1953, 202 F.2d 492; Foster v. Western Electric Co., 1972 La.App., 258 So.2d 153. Nor did it err in holding that Louisiana decisions establish that a “principal”, liable to an injured employee for payment of workmen’s compensation benefits under L.S.A. R.S. 23:1032, is immune from tort suits brought by such an employee. See Broussard v. Heebe’s Bakery, Inc., 1972, 263 La. 561, 268 So.2d 656. We see no reason, therefore, to abstain or to certify this issue to the Louisiana Supreme Court.

There is no merit to the appellant’s contention that the summary judgment was improper because Riblet’s employee, Larry Larkin, did not enjoy immunity under L.S.A. R.S. 23:1032. Larkin was not a named defendant in this suit, and the district court’s judgment did not purport to reach the merits of any claim Liles might state against Larkin. We affirm the judgment without prejudice to Liles’ rights, if any, against Larkin.

Affirmed.

      . Larkin is a citizen of Louisiana; his joinder would thus have destroyed diversity.


text:
    Domingo ROSAS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-2986.
    United States Court of Appeals, Fifth Circuit.
    March 14, 1975.

      Jeffrey R. Parsons, Houston, Tex. (Court-appointed), for petitioner-appellant.
    Anthony J. P. Farris, U. S. Atty., James P. Gough, Asst. U. S. Atty., Houston, Tex., for respondent-appellee.
    ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
    Before COLEMAN, DYER and RONEY, Circuit Judges.
   PER CURIAM:

In his petition for rehearing appellant asserts that Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974), requires that Trujillo v. United States, 377 F.2d 266 (5th Cir.), cert. denied, 389 U.S. 899, 88 S.Ct. 224, 19 L.Ed.2d 221 (1967), be reviewed by the en banc Court and overruled. Marrero, however, was legislatively reversed on October 26, 1974 with the enactment of Section 2 of Pub.L. 93-481.

This Court recently considered, and rejected, an argument similar to Rosas’ in Herrera v. United States, 507 F.2d 143 (5th Cir. 1975). Relying on this Circuit’s pre-Marrero case law, we there held that Herrera was not entitled to 28 U.S.C.A. § 2255 relief for the failure of the district judge who accepted his guilty plea to disclose that he would be ineligible for parole, because, in fact, Herrera was now entitled to have his application for parole considered. Amaya v. United States Board of Parole, 486 F.2d 940 (5th Cir. 1973), vacated and remanded for reconsideration in light of Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974); United States v. Farias, 488 F.2d 852 (5th Cir. 1974); Trujillo v. United States, 377 F.2d 266 (5th Cir.), cert. denied, 389 U.S. 899, 88 S.Ct. 224, 19 L.Ed.2d 221 (1967).

Like Herrera, Rosas is entitled only to have his application for parole considered and not to § 2255 relief.

The petition for rehearing and petition for rehearing en banc are denied.


text:
    Herbert PATE et al., Plaintiffs, v. DADE COUNTY SCHOOL BOARD et al., Defendants-Appellees, Alice Love and Carswell Washington et al., Intervenors-Appellants, Dade County Classroom Teachers’ Association, Inc., Intervenor.
    No. 74-3181.
    United States Court of Appeals, Fifth Circuit.
    Feb. 28, 1975.

      James W. Matthews, Richard Y. Fed-er, Irma R. Feder, Miami, Fla., for plaintiffs.
    Frank A. Howard, Jr., Miami, Fla., for School Bd.
    Charles E. Miner, Jr., Tallahassee, Fla., for State Bd. of Ed.
    Tobias Simon, Elizabeth J. duFresne, Miami, Fla., for intervenor DCCTA.
    Before BROWN, Chief Judge, and MORGAN and GEE, Circuit Judges.
   PER CURIAM:

This case began in August, 1969, when the Dade County School Board invoked the jurisdiction of the federal court to protect itself against an action in the Florida state court by a citizen who sought to enjoin the school board from implementing a desegregation plan it had approved for the 1969 — 1970 school year. After extensive proceedings over a period of a year, this court in a lengthy opinion reviewed the district court’s orders approving a final desegregation plan after requiring further modification to the student assignment element of the plan and thereafter held that the total plan as modified would effectively desegregate the Dade County School System. Pate v. Dade County School Board, 434 F.2d 1151 (5th Cir. 1970), cert. denied 402 U.S. 953, 91 S.Ct. 1613, 29 L.Ed.2d 123 (1971).

After the decision in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) and its companion cases, the district court entered an order on June 14, 1971, outlining the continuing duty of the Dade County School Board to make the desegregation plan work, recognizing its own responsibility to insure that the school system remained unitary, and giving all parties time to object to the school board’s 1971-1972 pupil assignment plan. Thereafter, on June 18, 1971, the district court approved the plan and relieved the school board of any duty to obtain prior approval of further changes, and fixed the burden as to any further proceedings as follows:

“The burden shall be upon the present intervenors, or any other persons hereafter permitted to intervene, to demonstrate to this Court a prima facie case of the School Board’s failure to act in accordance with the principles outlined in this Court’s order of June 14, 1971. Jurisdiction is retained for this limited purpose.”

At that time, the present appellants not only objected to the 1971-1972 pupil assignment plan, but moved to reopen the case for evidentiary hearings de novo, asserting that the desegregation plan as previously approved by this court was in conflict with the Supreme Court’s opinion in Swann v. Charlotte-Mecklenburg Board of Education, supra. On June 30, 1971, the district court denied further evidentiary hearings and found that the Dade County School System was a unitary system and complied with Swann v. Charlotte-Mecklenburg Board of Education, supra. The appellants appealed to this court from the district court’s orders of June 18 and June 30, 1971, and this court summarily affirmed the district court. Pate v. Dade County School Board, 447 F.2d 150 (5th Cir. 1971), cert. denied 405 U.S. 1064, 92 S.Ct. 1493, 31 L.Ed.2d 794 (1972).

The record shows that the Dade County School Board has taken effective steps to further the desegregation process. When the board, in 1972, found that the pairings of two junior high schools which had been ordered by this court in its 1970 opinion had not worked effectively, the board grouped a third, virtually all white, school to the originally paired schools in an effort to stabilize the situation. This grouping, which involved additional bus transportation, voluntarily ordered by the board, was very recently before this court, and we approved the board’s actions by affirming the dismissal by the district court of a complaint filed by a group of parents. Darville v. Dade County School Board, 497 F.2d 1002 (5th Cir., 1974).

The current proceedings here were initiated on June 20, 1974. In their petition the intervenors in the court below demanded a plenary evidentiary hearing, asserting the hearing was necessary concerning a recent revision by the board of the student feeder plan for one senior high school and a tentative 5-year construction plan which had been approved by the board.

The board filed a motion to dismiss, and the intervenors filed a reply thereto. The district court heard a full and extensive argument which was supplemented by exchange of letters concerning aspects of the construction plan.

On June 30, the district court held that the petitioners had failed to make a prima facie showing under the burden defined in its orders of June 14 and 18, 1971, sufficient to justify action with respect to the high school feeder plan or the demand for consideration of a comprehensive new desegregation plan. The district court scheduled a hearing to consider whether the implementation of the construction plan would adversely affect the existing unitary system. The board has not cross appealed from -the portion of the order scheduling a hearing on the construction plan, and since the tentative construction plan is to be the subject of an evidentiary hearing, this construction plan is not an issue in this appeal. The district court’s denial of intervenors’ claims (a) to enjoin implementation of the board’s 1974 feeder plan, and (b) for the adoption of a comprehensive desegregation plan for the 1975-1976 school year is hereby

Affirmed.


text:
    Walter BELL, Jr., Plaintiff-Appellant, v. The Honorable Judge George D. TAYLOR, and District Attorney Tom Hanna for Jefferson County, Texas, Defendants-Appellees.
    No. 74-3805
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 17, 1975.

      Jesse R. Funchess, Houston, Tex., for plaintiff-appellant.
    Tom Hanna, Crim. Dist. Atty., Jefferson County, Stephen M. Rienstra, Beaumont, Tex., for defendants-appellees.
    Before GEWIN, GOLDBERG and DYER, 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:

Bell seeks to remove his state prosecution for two counts of capital murder and one count of attempting to pass a forged instrument to federal court under 28 U.S.C.A. § 1443, claiming that the alleged refusal of the state trial judge to give him sufficient time to analyze certain physical evidence in the prosecution’s possession was the product of racial prejudice. The district court dismissed the petition without a hearing and remanded the prosecution to the state courts. We affirm.

In Georgia v. Rachel, 1966, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925, the Supreme Court formulated two prerequisites to removal under 28 U.S.C.A. § 1443(1): (a) the person seeking removal must rely on a specific civil right granted by a law stated in terms of racial equality, and (b) must show that denial of this right would necessarily occur in state court due to the operation of a formal expression of state law.

Bell satisfies neither prerequisite. No federal statute authorizes or immunizes the conduct with which he is charged. Greenwood v. Peacock, 1966, 384 U.S. 808, 826-27, 86 S.Ct. 1800, 16 L.Ed.2d 944. Moreover, far from alleging a deprivation of rights' arising from the operation of state law, Bell contends that the state court’s action was taken in derogation of his rights under state law.

Bell finally argues that it was error for the district court to dismiss his petition without a hearing. We disagree. When it plainly appears that the allegations of the petition, even if true, are legally insufficient to state a ground for removal, no hearing into their factual merit is required. Davis v. Superior Court of California, 9 Cir. 1972, 464 F.2d 1272.

Affirmed.

      . 28 U.S.C.A. § 1443(2) is inapplicable because it covers only federal officers and those acting under them. Greenwood v. Peacock, 1966, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944.