author: LEWIS R. MORGAN, Circuit Judge:

text:
    UNITED STATES LINES, INC., as owner of the SS AMERICAN ARCHER, etc., Plaintiff, J. K. Polikoff, Plaintiff-Appellant, v. M/V JOSE LUIS AZNAR, her engines, tackles, etc., Defendant-Appellee.
    No. 72-3653
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 15, 1973.
    Jacob Rassner, New York City, Engelbert J. Berger, Cristobal, Canal Zone, for plaintiff-appellant.
    David de C. Robles, Harry H. Allen, Jr., Betty H. Olchin, Roy P. Phillipps, Balboa, Canal Zone, H. Tzanetatos, Republic of Panama, for defendant-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   LEWIS R. MORGAN, Circuit Judge:

The M/V Jose Luis Aznar and its cargo were ordered sold by the United States District Court of the District of the Canal Zone by writ of “Venditioni Exponas” issued on September 27, 1972. The Marshal, pursuant to that order, caused notices to be published in keeping with the district court rules announcing the sale of the ship and cargo for October 30, 1972. At that sale there was only ope bidder, one Roberto Motta, whose J)id for both the ship and the cargo was $60,000.00. The same afternoon of the Marshal’s sale a motion was filed with the district court to disapprove the sale since the amount offered was so low as to constitute a mockery. At a hearing on this motion it was suggested that the lack of enthusiasm of other persons to submit bids was probably due to the ambiguous manner of the wording of the notice of the Marshal’s sale.

After several hearings on this matter it became apparent to the court that other persons would be interested in entering bids if the sale of October 30, 1972, were disapproved and a second Marshal’s sale was ordered. The district court stated that in order to grant the motion to disapprove the original bid of $60,000.00, a guaranteed upset bid in an amount substantially higher would be required.

In order to satisfy the court on this point, one Norman Wolf son from Fort Lauderdale appeared in court and assured the district court that if the ship and its cargo were readvertised he would enter a bid of not less than $100,000.00. Also, one John Glikis stated to the court that as representative for J. K. Polikoff he was willing to enter an upset bid of not less than $110,000.00, and agreed to put up a bond as a guarantee that if the ship and cargo were readvertised he would make such a minimum bid. The court, satisfied with these guarantees, informed all persons present that the ship and cargo would be readvertised and resold.

On November 8, 1972, the court disapproved the Marshal’s October 30th sale to Roberto Motta and directed the Marshal to readvertise the sale of the vessel and cargo and ordered that said sale should be for a sum of not less than $110,000.00. At the second sale the highest competitive bidder offered $360,000.-00 and, therefore, purchased the ship and its cargo. The successful bidder was Alfa II Shipping Company S.A., and the second highest bidder was John Glikis, with a bid of $300,000.00 on behalf of the appellant.

I

Appellant Polikoff contends it was not given an opportunity to object to the resale of the vessel. This court finds upon review of the record that appellant was well aware of the time and place of the resale; that appellant did enter a bid on the resale, and that appellant was well aware that it did not purchase the ship with its bid of $300,000.00. The appellant now contends that it should be allowed to contest this resale.

If the appellant had been in any way prejudiced by the actions of the court on the resale of this ship, then certainly they would have a right to come in and protest this sale. This, however, was not the case below. Appellant was aware of and participated in all of the dealings involved with the resale of the ship from the original upset bid to the resale. Appellant was fully aware of all procedures and transactions and there is no grounds upon which to base its allegations of prejudice.

II

Appellant contends that it was under the impression it had purchased the ship and cargo for $110,000.00 on the basis of the various discussions and statements which were made at the time of the hearing on the motion to disapprove the first sale. The record shows clearly that the court discussed dates for resale and that appellant participated in these discussions.

Furthermore, in appellant’s letter of November 20, 1972, to the judge below, appellant stated that it was concerned about seeing advertisements for the resale in that day’s Journal of Commerce in New York. The appellant stated that its concern was based on the fact that these advertisements could create undue competition as regards the resale. This court finds that the appellant by its own admission was fully aware of the fact that a resale with competitive bidding was going to take place and that it was not purchasing the boat in question for $110,000.00.

Ill

Appellant maintains that ordering and requiring appellant to defray the expenses and costs of the highest bidder at the original sale was error by the court below. The appellant contends that this should have been paid by the successful bidder at resale. While this contention does have some appeal, a careful analysis of the case indicates that the court below acted correctly.

The district court, using its discretion, required appellant to pay the costs of the original purchaser for several reasons. First, paying these costs certainly showed an indication of good faith on the part of appellant as to bidding at the resale. Even more important, if, on resale, the original purchaser was again the highest bidder, then he would be in a situation of repaying himself for the difference in the cost from the original sale and the resale. In other words, if the original purchaser were again successful in purchasing the ship, he would automatically be out all of his costs and expenses as a result of the resale. The court, therefore, required the upset bidder to pay these costs and thus ensured that there would not be an inequitable burden placed upon the original bidder. Judge Learned Hand clearly recognized the possibility of this inequity as early as 1931 in Electric Boat Company v. East Hampton Shipping Company, 2 Cir., 48 F.2d 542. In that case Judge Hand required an upset bidder to pay all costs of the original purchaser prior to any resale.

This court, having considered all assignments of error and discussed those that it deemed meritorious, orders that the court below in all respects is

Affirmed.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Norma TARSHIS, Plaintiff-Appellant, v. LAHAINA INVESTMENT CORPORATION, a Hawaii corporation, d/b/a Royal Lahaina Hotel, Defendant-Appellee.
    No. 71-2725.
    United States Court of Appeals, Ninth Circuit.
    June 21, 1973.

      Daral G. Conklin, George Y. Kimura, of Conklin & Kimura, Honolulu, Hawaii, for plaintiff-appellant.
    Gary N. Hagerman, of Jenks, Kidwell, Goodsil & Anderson, Honolulu, Hawaii, for defendant-appellee.
    Before KOELSCH, WRIGHT and TRASK, Circuit Judges.
   OPINION

PER CURIAM:

This appeal is from a summary judgment of dismissal awarded to Lahaina Investment Corporation, d/b/a Royal Lahaina Hotel, on the ground that no genuine issue of material fact was involved.

Appellant, a citizen of New York, registered with her husband at the Royal Lahaina Hotel at Kaanapali, Maui, on January 27, 1969. The Royal Lahaina with a beach frontage of 400 feet, advertised in brochures that:

“[T]he Royal Lahaina Beach resort stretches along a 3-mile secluded white sand beach on the West side of the Island of Maui. . . . The sea is safe and exhilarating for swimming. . . . ”

However, on the day of appellant’s accident, appellee alleges that four signs were posted along the frontage of the beach, two of which read:

“CAUTION Red flag on beach indicates dangerous surf conditions. Guests please use swimming pools. Mahalo.”
The other two signs read:
“NOTICE to our guests, Red Flag on Beach indicates dangerous surf. Please use swimming pools. Mahalo.”

The red flags (allegedly six in number) were positioned along the edge of Royal Lahaina’s beach frontage, and were admittedly seen by appellant on January 28 when she, her husband and friends, went to the beach to swim in the ocean. Appellant, however, in her affidavit, stated that she did not see the signs warning of dangerous surf conditions, nor did she receive verbal warnings from appellee concerning those conditions. Noting the existence of “slight waves,” appellant and her companions entered the water where, five to ten minutes later, appellant was injured as the result of being thrown on the beach by a “huge wave.”

In granting appellee’s motion for summary judgment the district court assumed, without deciding, that appellee owed appellant the duty to warn her of dangerous conditions in the Pacific Ocean along its beach frontage “which were not known to her or obvious to an ordinarily intelligent person and either were known or in the exercise of reasonable care ought to have been known to the [appellee].” We find this to be a correct statement of the law. See, e. g., Gratto v. Palangi, 154 Me. 308, 147 A.2d 455 (1958); Perkins v. Byrnes, 364 Mo. 849, 269 S.W.2d 52 (1954); see generally, Annot., 48 A.L.R.2d 104.

The court held, however, that the dangers inherent in swimming in the ocean on the day of the accident “should have been known to the [appellant] as an ordinarily intelligent person” and hence appellee was under no duty to warn appellant of the dangerous surf conditions.

Whether or not the ocean fronting appellee’s property would have appeared dangerous to an ordinarily intelligent person is a question of fact inappropriate for summary adjudication. We have recently noted that “ ‘ [i] ssues of negligence are ordinarily not susceptible of summary adjudication’.” Arney v. United States, 479 F.2d 653 (9th Cir., 1973).

Appellant contends that she observed only “slight waves,” and saw nothing to indicate the powerful force exerted by some of them. Appellee presented evidence that the surf on the day of the accident was “like that usually experienced during a typical trade wind day,” but came forward with nothing to show that appellee should have known that the surf was dangerous as the hotel itself cautioned in its signs.

On the basis of this evidence, appellant is entitled to present to a trier of fact her theory that the existence of the powerful, surging surf represented an unapparent, dangerous condition which appellee knew about and of which it failed to adequately warn her.

The judgment is reversed and the cause remanded to the district court.

      . Appellee owns only that part of the beach above the upper reaches of the wash of the waves. Application of Ashford, 50 Haw. 314, 440 P.2d 76 (1968).

      . Mahalo is a Hawaiian word, meaning “thank you.”


author: SIMPSON, Circuit Judge:

text:
    Gerald EATON, Petitioner-Appellant, v. Walter CAPPS, Warden, Respondent-Appellee.
    No. 73-1585
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 5, 1973.
    J. Paul Lowery, Montgomery, Ala. (Court-appointed, not under CJA), for petitioner-appellant.
    William J. Baxley, Atty. Gen., Leslie Hall, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges:

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

   SIMPSON, Circuit Judge:

Following the decisions of the Supreme Court of the United States in Fur-man v. Georgia, 1972, 408 U.S. 238, 92 S. Ct. 2726, 33 L.Ed.2d 346, and companion cases, this court has consistently remanded habeas corpus appeal cases involving state prisoners under death sentence to the appropriate federal district courts with directions to grant the writ if the sentencing state court or the state custodial authorities should fail or refuse within a reasonable time to reduce the state prisoner’s death sentence to life imprisonment or a period of confinement not in excess thereof. Some remands, because of the procedural posture of the particular case, have been for reconsideration by the district court in the light of Furman. See, e. g. Alexander v. Henderson, 5 Cir. 1973, 470 F.2d 1370; Williams v. Henderson, 5 Cir. 1972, 465 F.2d 995; Newman v. Wainwright, 5 Cir. 1972, 464 F.2d 615.

The instant appeal involves a state habeas corpus petitioner under death sentence for first degree murder fixed by his trial jury. Eaton’s case was pending before the federal district court when Furman came down. The action taken by the district judge was (1) to order Eaton removed from Death Row at Kilby Prison, Alabama, to the general prison population pending further state court proceedings, and (2) to direct that the state trial court re-sentence Eaton to the only lawful punishment left in the light of Furman, the life sentence mandated by Alabama law. This appeal followed. We affirm.

What the petitioner appellant terms his “threshold” issue on appeal questions the constitutional validity of his conviction in view of the fact that the portion of the statute under which he was sentenced (note 2, supra) is unconstitutional under Furman, supra, since the Georgia and Texas statutes involved in that case were essentially the same as the Alabama statute under which Eaton’s death sentence was imposed. Eaton, therefore claims that he was entitled to be discharged instanter by the federal habeas court. This contention is indeed wide of the mark As the Per Curiam opinion of the Supreme Court shows, 408 U.S. at 239, 92 S.Ct. at 2727, 33 L.Ed.2d at 347, certiorari was granted limited to the following question: “Does the imposition and carrying out of the death penalty in [these cases] constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?” The holding answers the question in the affirmative. The Per Curiam opinion continues: “The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings.” (Emphasis added). None of the statutes involved is held unconstitutional per se, simply the imposition of death sentences under them. Nothing contained in any of the separate opinions of Justices Douglas, Brennan, Stewart, White and Marshall in concurrence, and the Chief Justice and Justices Blackmun, Powell and Rehnquist, in dissent, indicate that the holding is broader than this.

The several pre-Furman lower court eases cited by petitioner-appellant are completely inapposite to any question raised in his brief. It is clear we think that the effect of Furman v. Georgia and the correct procedure to follow is as we outline at the start of this opinion, and as developed by us in Alexander v. Henderson, supra, Williams v. Henderson, supra, Newman v. Wainwright and similar decisions. The procedure followed by the court below did not significantly depart from the teachings of our cases.

The petitioner-appellant’s two remaining issues, “subsidiary”, he asserts to the above first or “threshold” issue, are determined for all practical purposes by our discussion of his first issue.

He questions the judicial authority of the United States District Court for the Middle District of Alabama to reduce a death penalty for murder in the first degree to imprisonment for life by an order entered in an habeas corpus proceeding. As indicated above, this is not what occurred and the question is not necessary for decision. What the federal district court did was to remand the case to the state trial court for imposition of a corrected sentence in the light of Fur-man.

The last subsidiary issue discussed on brief is whether or not Eaton has the constitutional right to be present when he is re-sentenced, either “by the U.S. District Court or any other court by reduction of his sentence from the death sentence to life imprisonment”. This question was not dealt with by the district judge below and may not be raised before us on this appeal. The lower court (1) simply determined that “while the sentence of death imposed upon Petitioner is unconstitutional, and void, other reasons justify state detention of Petitioner pending correction of his sentence”, order of September 22, 1972, page 6, (2) directed that he be removed from Death Row pending further procedures, as an humane procedure, order of September 22, 1972, pages 6-8, and (3) left the procedures attendant upon re-sentencing to be fixed by Eaton’s state trial judge, order of September 22, 1972, pages 2-5, page 8.

Whether re-sentencing has already taken place on November 15, 1972 (see note 2, supra) or is to take place in the future, if the re-sentencing is in appellant’s judgment subject to attack for constitutionally infirm procedures, his non-presence or otherwise, his first recourse is to the courts of Alabama. Upon exhaustion of Alabama judicial remedies, he will be free to return to the federal district court for correction of state violations of federally guaranteed rights by a further habeas corpus petition under Title 28 U.S.C. Sections 2241 et seq. Any earlier consideration of this issue by this Court or the district court below would be premature.

Affirmed.

      . Involving inter alia, a Witherspoon v. Illinois, 1968, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 capital punishment jury selection question. The district judge had several years previously stayed the federal proceedings to permit exhaustion of state judicial remedies as to other questions raised. The death of petitioner’s counsel had apparently brought the state court proceedings to a standstill.

      . Code of Alabama, 1940, Title 14, Sec. 318 provides in pertinent part:
      “Any person who is guilty of murder in the first degree shall on conviction suffer death, or imprisonment in the penitentiary or imprisonment for life in the discretion of the jury.”
      The order of the court below appealed from did not, as asserted by appellant’s brief, undertake to re-sentence Eaton to imprisonment for life. That order is dated September 22, 1972 and the brief of the appellee asserts, without of course support in the record, that the state trial court resentenced Eaton to life imprisonment mono pro tuno, on November 15, 1972.

      . The three petitioners in Furman and related cases, supra, were convicted under the following statutes:
      Furman, the petitioner in No. 69-5003, was convicted of murder in Georgia and sentenced to death pursuant to Ga.Code Ann. Sec. 26-1005 (Supp.1971) (effective prior to July 1, 1969).
      Jackson, the petitioner in No. 69-5030, was convicted of rape in Georgia and sentenced to death pursuant to Ga. Code Ann. Sec. 26-1302 (Supp.1971) (effective prior to July 1, 1969).
      Branch, the petitioner in No. 69-5031, was convicted of rape in Texas and was sentenced to death pursuant to Vernon’s Tex.Penal Code Ann., Art. 1189 (1961).
      In the interest of space we do not quote the Georgia statutes involved. As the text indicates, they are not dissimilar in content from the Alabama statute involved here, Code of Alabama 1940, Title 14, Sec. 318, in that each permits the trial jury to decide by making or withholding a recommendation to mercy whether the penalty to be imposed shall be death or imprisonment for life.
      The Texas statute, Vernon’s Penal Code Ann. Art. 1189 (1961) provides simply that “A person guilty of rape shall be punished by death or by confinement for life, or for any term of years not less than five.”
      Assessment of penalties by Texas juries in capital cases is mandated by Vernon’s Ann.Code of Criminal Procedure, Art. 37.07, sub. 2(b), effective 1967, formerly Arts. 693, 770 and 750. Other sections of Vernon’s Code of Crim.Procedure provide for jury assessment of penalties in non-capital eases and in capital cases where the death penalty is not sought by the state.

      . He cites, without really indicating what proposition they support, the cases following :
      Stiltner v. Rhay, E.D.Wash., 1965, 258 F.Supp. 487, affirmed 9 Cir. 1966, 367 F.2d 148; Arketa v. Wilson, 9 Cir. 1967, 373 F.2d 582; Rhea v. Edwards, M.D.Tenn.1955, 136 F.Supp. 671; Duncombe v. New York, S.D.N.Y.1967, 267 F.Supp. 103; U.S. ex rel. Mascio v. Ragen, 7 Cir. 1950, 179 F.2d 930.

      . Eaton asserts that the sole relief be sought below was injunctive relief against state authorities to prevent his execution, and that the federal court’s authority to act did not extend beyond affording that relief.


author: ROBERT P. ANDERSON, Circuit Judge:

text:
    RAINBOW LINE, INC., Plaintiff-Appellee, v. M/V TEQUILA (ex Linglee), her engines, tackle, boiler, equipment, etc. et al. Defendants, Empire Commercial Corporation, Claimant-Appellant.
    No. 381, Docket 72-2204.
    United States Court of Appeals, Second Circuit.
    Argued April 4, 1973.
    Decided June 18, 1973.

      Michael Marks Cohen, New York City (Burlingham, Underwood & Lord and John G. Ingram, New York City, on the brief), for claimant-appellant.
    Francis H. McNamara, New York City (Cichanowicz & Callan, New York City, on the brief), for plaintiff-appellee.
    Before KAUFMAN, Chief Judge, and ANDERSON and OAKES, Circuit Judges.
   ROBERT P. ANDERSON, Circuit Judge:

There are three principal issues in this case: what choice of law prevails, whether a breach of charter party gave rise to a maritime lien, and the priority of the lien.

The facts are these. Pursuant to a standard New York Produce Exchange time charter, the vessel LINGLEE, owned by the Simpson Steamship & Navigation Co. (Simpson), was delivered to her charterers, Rainbow Line, Inc. [Rainbow], on December 12, 1969 for a term of six months with options to renew for two additional periods of six months. Rainbow exercised the first of these options. On October 28, 1970, Simpson prematurely withdrew the vessel from service and Rainbow sought damages for this breach of the charter party. On May 13, 1971, an arbitration panel awarded Rainbow $17,849.12.

In the meantime, on March 8, 1971, Simpson, a subsidiary of Windjammer International [Windjammer], sold the LINGLEE to another Windjammer subsidiary, Tequila, Ltd., which renamed the vessel the TEQUILA. As part of this transaction, Empire Commercial Corp. [Empire] loaned Tequila, Ltd., $180,000 on its note secured by a first preferred mortgage on the vessel. Within two months, however, Tequila defaulted on its payments.

In May of 1971 the TEQUILA was arrested in New York upon the complaint of Lewis Nadie who claimed $60,000 for salvage and towage services furnished the vessel when she ran aground off Honduras in November, ,1970. Rainbow and Empire and nine other claimants also arrested the ship for claims totaling $392,312.40. The vessel was sold by the United States Marshal for $162,000.

Most of these claims have been settled out of the proceeds of the sale, and the fund now totals $84,271.81, with just three claims left pending against it— Rainbow’s for $17,217.65 ; Nadle’s for $60,000; and Empire’s for $230,814.47.

This appeal, authorized by 28 U.S.C. § 1292(a)(3), is taken from the order of the district court, which, on the basis of United States admiralty law, held that Rainbow had a maritime lien for the breach of the charter party. If this ruling is correct, Rainbow, under the Ship Mortgage Act of 1920, 46 U.S.C. § 953, would have priority status over Empire and could receive immediate payment of its claim, because Rainbow’s lien attached before Empire recorded its mortgage; however, if Rainbow has no preferred maritime lien, there will be nothing left in the fund for its claim after Empire is paid.

The first issue is what law to apply. Empire contends that British law, which grants no lien for the breach of a charter party, must govern as it was the law of the flag at the time of the breach. Rainbow argues that the court below was correct in applying United States law because it was so intended by the parties to the charter. But maritime liens arise separately and independently from the agreement of the parties, and rights of third persons cannot be affected by the intent of the parties to the contract, The Bird of Paradise, 72 U.S. 545, 555, 18 L.Ed. 662 (1866); see also, Piedmont & Georges Creek Coal Co. v. Seaboard Fisheries Co., 254 U.S. 1, 10, 41 S.Ct. 1, 65 L.Ed. 97 (1920); G. Gilmore & C. Black, The Law of Admiralty, § 9-1, at 481-2 (1957).

This does not mean, however, that there is automatic recourse to the law of the flag. In Lauritzen v. Larsen, 345 U.S. 571, 582, 73 S.Ct. 921, 928, 97 L.Ed. 1254 (1953), the Supreme Court stated that maritime law resolves conflicts by “ascertaining and valuing points of contact between the transaction and the states or governments whose competing laws are involved.” The Court went on in that Jones Act case to put specific importance on three factors: the law of the flag, the allegiance or domicile of the injured seaman, and the allegiance of the shipowner; it gave relatively little weight to the place of the tort, the place of the signing of the employment contract, the accessibility of a foreign forum, or the law of the forum, see Tjonaman v. A/S Glittre, 340 F.2d 290, 291 (2 Cir.) cert. denied 381 U.S. 925, 85 S.Ct. 1561, 14 L.Ed.2d 684 (1965). In Romero v. International Terminal Operating Co., 358 U.S. 354, 382, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), the Court held that the broad principles set forth in Lauritzen were to govern choice of law problems in all maritime cases but “due regard must be had for the differing interests advanced by varied aspects of maritime law.” Thus, “[t]he controlling considerations are the interacting interests of the United States and of foreign countries, . . .” Romero, supra, 358 U.S. at 382-383, 79 S.Ct. at 485-486.

In applying the principles of Lauritzen to this case, it must be borne in mind that the present case was decided on its own facts and the legal problems contained in them, and that no one test can be stated for all maritime lien cases, of. Reese Depegage: A Common Phenomenon in the Choice of Law, 73 Colum.L. Rev. 58 (1973). The present case involves a number of different considerations or potential points of contact between different nations; but because the court below proceeded on a different theory, it made no findings of fact on a number of the issues involved. The record, however, is sufficiently clear on the key points to make a remand unnecessary.

First, there is the registration of the vessel or the law of the flag. At the time of the breach, this was Bahamian or British; at the time of the mortgage and thereafter, it was Liberian. The owners were Simpson, Bahamian, and Tequila, Ltd., Liberian, but both of these corporations were subsidiaries of Windjammer, a United States corporation, having its principal place of business in Florida. Furthermore, Windjammer’s president, Michael Burke, who also appears to have a controlling interest in Windjammer, is a Florida resident. As to the parties on this appeal, Rainbow is a Liberian corporation which conducts all its business through an agent in Puerto Rico; and Empire is a New York corporation with its principal place of business in that state.

Therefore, without attempting to determine which factors should be given the most weight, it can be seen that virtually all of the points of contact in the transactions giving rise to this dispute are with the United States. Some are Liberian, but no one contends that Liberian law should apply. ' The only British contacts are the registration and nominal ownership of the vessel at the time the charter party was breached. These British interests, however, are overshadowed by the fact that the real owners of the vessel, namely Windjammer and Burke, were American, and it is well settled that the courts will look through the facade of foreign registration and incorporation to the American ownership behind it, Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970); Bartholomew v. Universe Tankships, Inc., 263 F.2d 437, 442 (2 Cir.) cert. denied, 359 U.S. 1000, 79 S.Ct. 1138, 3 L.Ed.2d 1030 (1959).

An additional reason for applying American law in this case is that the only party who does not want to use that law is Empire, an American corporation whose claim is based upon a note that stipulates the use of American law. Thus, if there were any doubt on the choice of law point, it could certainly be resolved against a United States citizen who wished to avoid its own country’s laws, cf. Lauritzen, supra, 345 U.S. at 587, 73 S.Ct. 921.

Because there are sufficient factors for using American maritime law, rather than the British law of the flag, cf. Tjonaman, supra, 340 F.2d at 291, we turn now to a consideration of that law.

The arbitration award gave Rainbow damages on all five of its claims: (1) that the vessel did not make the speed guaranteed in the charter; (2) that prepaid charter hire was not refunded; (3) that advances for supplies made by the charterer on the owner’s account were not reimbursed; (4) that it was not indemnified against a claim by a shipper for cargo not carried because of the withdrawal of the vessel from charter; and (5) that it was not reimbursed for its expenses in attempting to arrest the vessel in Tampa. Rainbow, however, only claims a maritime lien for the value of the first four items.

The American law is clear that there is a maritime lien for the breach of a charter party, and because the damages sought to be recovered by Rainbow are all of a maritime nature and flow directly from the breach of the charter, it has a maritime lien.

The Supreme Court, in dicta, in The Schooner Freeman v. Buckingham, 59 U.S. 182, 190, 15 L.Ed. 341 (1955), stated that “charterparties, must, in the invariable regular course of business, be made, for the performance of which the law confers a lien on the vessel.” The truth of this statement is borne out by the fact that in rem jurisdiction in the admiralty exists only to enforce a maritime lien, The Resolute, 168 U.S. 437, 440, 18 S.Ct. 112, 42 L.Ed. 533 (1897); The Rock Island Bridge, 73 U.S. 213, 215, 18 L.Ed. 753 (1867), and a breach of a charter party is cognizable as an in rem action, Morewood v. Enequist, 64 U.S. 491, 493-494, 16 L.Ed. 516 (1859); therefore, the breach of a charter gives rise to a maritime lien.

This court in Schilling v. A/S D/S Dannebrog, 320 F.2d 628, 632-633 (2 Cir. 1963), and the Eros, 251 F. 45 (2 Cir), cert, denied 247 U.S. 509, 38 S.Ct. 578, 62 L.Ed. 1242 (1918), has recognized the existence of such a lien, as have other courts, see, e. g., The Oceano, 148 F. 131, 133 (S.D.N.Y.1906); The Port Adelaide, 59 F. 174, 177 (E.D. N.Y.1893), aff’d as modified on other grounds, 62 F. 486 (2 Cir. 1894), and the commentators, Gilmore & Black, supra, § 9-20, at 517; 1 E. Benedict, The Law of American Admiralty, § 96, at 293-94 (6 ed. 1940); Ray, Maritime Contract Liens, 47 Tul.L.Rev. 587, 597 (1973).

In an attempt to show that Rainbow should have no lien, Empire argues the injustice of permitting this “secret lien” which weakens the security interest of the mortgagee. Yet, even if it were possible to ignore the heavy weight of precedent which confirms Rainbow’s right to a lien, Empire’s argument is not persuasive. A maritime lien for breach of charter has priority over the mortgagee only if it has attached before the mortgage was recorded, 46 U.S.C. § 953; and, if there is such a prior lien, the lienor must act quickly or risk being barred by laches from asserting his claim, The Key City, 81 U.S. 653, 660, 20 L.Ed. 896 (1871). Moreover a sophisticated ship mortgagee is well able to devise adequate protection for itself against priority liens, cf., Harmon, Discharge and Waiver of Maritime Liens, 47 Tul.L.Rev. 786, 805 (1973).

The decision of the district court, granting Rainbow a maritime lien, is affirmed.

      . The court below entered judgment on the arbitration award in Rainbow’s favor for $17,217.65 and this confirmation is not disputed on appeal.

      . There is no question that 46 U.S.C. § 953 applies to this foreclosure in a United States court, even though the mortgage was recorded in Liberia, Payne v. S.S. Tropic Breeze, 423 F.2d 236, 238-239 (1 Cir.), cert. denied, Samadjopoulos v. Nat. West. Life Ins. Co., 400 U.S. 964, 91 S.Ct. 363, 27 L.Ed.2d 383 (1970) ; G. Gilmore & C. Black, The Law of Admiralty, § 9-51, at 578 (1957).

      . Even if Nadie takes priority over Rainbow, there is enough in the fund to pay both in full.

      . Of course, the parties may agree between themselves that in the event of a breach, no such lien will arise, but this cannot adversely affect the rights of third persons.

      . For examine, there is authority for the proposition that a lien for supplies furnished the vessel should be determined by the law of the place of the transaction, see The Scotia, 35 F. 907, 909 (SJD.N.Y. 1888).

      . There is no lien if the charter party is merely executory, The Saturnus, 250 F. 407, 408 (2 Cir.) cert. denied 247 U.S. 521, 38 S.Ct. 583, 62 L.Ed. 1247 (1918) ; The Yalmar, 38 F.Supp. 618, 620 (E.D. Pa.1941), but in the present case the vessel had been delivered to the charterer for some ten months and cargoes had been carried. Delivery of the vessel commences the performance of a time charter and removes it from executory status, The Oceano, 148 F. 131, 133 (S.D.N.Y.1906) ; G. Gilmore & C. Black, The Law of Admiralty, § 9-22, at 521 (1957) ; and, although it would not matter in this case, we disagree with the court in Belvedere v. Compania Plomari De Vapores, S.A., 189 F.2d 148 (5 Cir. 1951), to the extent that it felt that a time charter was executory until the first cargo was loaded.

      . Empire argues that even if there is generally a maritime lien for breach of charter, there is none for the specific claims made by Rainbow. For example, Empire states that because a supplier of necessities would not have a lien in this case, then Rainbow should not have one either. Empire misses the point, however, that Rainbow is not suing merely as the subrogee of the supplier but as a party injured by a direct breach of the charter.

      . Under American ship mortgage law, the mortgagor runs the risk of criminal penalties and civil damages for failure to disclose to the mortgagee the existence of any maritime liens known to him, 46 U.S.C. §§ 924, 941(b), (c).


author: O’SULLIVAN, Senior Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Larry Stephen WHITMAN, Defendant-Appellant.
    No. 72-1535.
    United States Court of Appeals, Sixth Circuit.
    Argued April 10, 1973.
    Decided June 26, 1973.

      William H. Ortwein (court appointed) Chattanooga, Tenn., for appellant; Robert H. Feeney, Chattanooga, Tenn., on brief.
    W. Lloyd Stanley, Jr., Asst. U. S. Atty., for appellee; John L. Bowers,.Jr., U. S. Atty., E. D. Tenn., on brief.
    Before EDWARDS and CELE-BREZZE, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
   O’SULLIVAN, Senior Circuit Judge.

Larry Stephen Whitman appeals from conviction, under a two-count indictment, each of which charged him with knowingly harboring and concealing a person traveling in interstate commerce to avoid arrest for a federal crime. Title 18 U.S.C. § 1071. He was convicted upon jury trial had in the United States District Court for the Eastern District of Tennessee, Southern Division. He was sentenced to three years imprisonment on each count, such sentences to run concurrently.

He asks reversal upon the following grounds: (1) double jeopardy; (2) insufficiency of the evidence; (3) improper cross-examination by the United States Attorney of a witness called by the prosecution; and (4) refusal to give a proffered instruction, requested by appellant.

We affirm as to Count I and reverse as to Count II.

1. Double jeopardy.

One day prior to the first date set for trial, November 24, 1971, the United States Attorney sought to obtain handwriting exemplars from appellant. Such request was refused and the government filed a motion asking the District Judge to compel appellant to supply such exemplars. On the morning of the day set for trial, a jury was selected but was excused before being sworn to provide the judge an opportunity to consider the government’s motion. The motion was granted, but appellant persisted in his refusal. The District Judge found appellant in contempt, but continued the case for two days to provide appellant opportunity to purge himself of such contempt. His refusal continued and the District Judge thereupon dismissed the then selected jury and continued the cause to a later date. When the case again came on for trial, February 28, 1972, appellant moved for dismissal, asserting that he had been placed in jeopardy when the first jury, selected in November, 1971, was excused. His motion was denied.

When appellant’s appeal first came on for hearing before this Court, it was asserted that the first jury had been sworn. The government did not then make an issue of this point. Thereupon, a panel of this Court, upon the assumption that the first selected jury had been sworn, held that appellant’s plea of double jeopardy should be sustained, 473 F.2d 910. We reversed and remanded for dismissal of the prosecution upon our then view that Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963), required such ruling. Our order recited that at the earlier trial, “a jury was selected and sworn.” Thereafter, the government moved for a rehearing, asserting that the first selected jury had not been sworn. Such assertion was supported by relevant affidavits and transcript excerpts. With this showing, our first order was vacated and a rehearing directed. Upon such rehearing, the veracity of the government’s claim that the first jury was not sworn was not challenged. Our own examination of the material now available persuades us that the first jury was not sworn. Downum v. United States, supra, is therefore not relevant to our decision. We conclude that appellant was not placed in jeopardy during the earlier November proceedings.

2. Sufficiency of the evidence.

The activities to apprehend the two fugitives named in Counts I and II of the indictment began when government agents conducted a raid on a house trailer then located in a rural area of Madison County, Alabama. This was in May, 1971. The fugitives, however, were not there found, the trailer was then occupied by appellant Whitman and two female companions. The government agents advised Whitman that they were looking for the fugitives, Larry Edward Hacker and Michael Joseph Famiglietti, later identified in Counts I and II of the Whitman indictment. Whitman was shown pictures of them and advised of the crime that would be involved in harboring them. He denied knowing them or their whereabouts. He said he did not recognize their pictures as men that he had ever seen before. At the mentioned time and location, appellant was driving a 1970 Grand Prix Pontiac automobile with a black vinyl top over a maroon body. This vehicle had Alabama license plates on it which were registered in the name of appellant Whitman. The record also shows that Whitman was then operating a 1965 Blue Comet automobile.

Between July 13 and July 19, 1971, an individual using the name John R. Stevens rented cabins 15 and 10 at Loret Villa, a lake resort in the Chattanooga, Tennessee, area. There was evidence that the John R. Stevens who rented the mentioned cabins was, in fact the appellant, Larry Stephen Whitman, and the two cabins remained registered to, and presumably in the custody of, appellant until their occupants were checked out on July 20. Both of Whitman’s automobiles were parked at the Loret Villa and there was evidence that the fugitive named in Count I was also in the area of cabin 15, rented to appellant. We are satisfied that viewing the evidence and permissible inferences drawn therefrom in the light most favorable to the government, the issue of appellant’s guilt under Count I was properly submitted to the jury. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

There was evidence that a young woman had, in Alabama, joined the fugitive Famiglietti, identified in Count II, sometime in May, 1971, and had gone on a long automobile journey with him. This journey included a stop in Detroit, where Famiglietti purchased a used yellow Cadillac automobile. The young lady said that on her trip she and Famiglietti stopped at a lake resort in the Chattanooga area. She did not, however, identify the place as Loret Villa where appellant was the host in cabins 15 and 10. There was evidence that within the period of time of appellant’s activities at Loret Villa, Famiglietti was shot and killed and that this event did occur within the environs of Chattanooga. There was evidence that a white Cadillac, with Michigan temporary license tags, was seen at Loret Villa during the relevant period of time. However easily a sophisticated inference could be drawn that this was the fugitive’s yellow Cadillac, without more it would not add up to proof that Familglietti was at Loret Villa. We are of the view that there was not sufficient evidence to submit appellant’s charged guilt under Count II for resolution by the jury.

3. Improper cross-examination.

The charged improper cross-examination by the government attorney had to do with a statement given to the FBI by the young lady who had been the traveling companion of the fugitive Famiglietti before his death. Our acquittal of appellant under Count II obviates extensive discussion of this assignment. We are of the view, however, that allowance of the criticized cross-examination was within the discretion of the District Judge, and that no prejudice was visited upon appellant by it. The young lady’s total loss of recollection of important events which were within her own knowledge suggested the need to refresh her recollection by her statement to the FBI. United States v. Cranson, 453 F.2d 123 (4th Cir. 1971).

4. The instructions.

Error is charged in the refusal of the District Judge to give the following instruction.

“Ladies and gentlemen of the jury, I further instruct you that the words ‘harbor’ and ‘conceal’ as used in the statute must be construed narrowly and do not include all forms of assistance. That statute relating tq harboring and concealing a person from arrest prescribes acts calculated to obstruct efforts of the parties to affect arrest of fugitives, but it does not impose a duty on one who may be aware of the whereabouts of a fugitive, although having played no part in his plight, (sic) to reveal this information on pain of criminal prosecution.”

Appellant’s address to us says that, “[t]he Court merely instructed the jury * * * by reading the Statute * * The District Judge, however, instructed the jury,

“The word ‘harbor’ as used in the statute, and used in the indictment, means to lodge or to aid or to care for one who is secreting himself from the processes of the law.
“The word ‘conceal,’ as used in the statute and in the indictment, means to hide or to secrete or to keep out of sight or to aid in preventing the discovery of one who is secreting himself from the processes of the law.”

The refused instruction was argumentative and, in part, had to do with a factual situation not relied upon by the government. We find no fault in refusal of the instruction.

We affirm the conviction under Count I. We reverse as to Count II and direct entry of a judgment of acquittal as to it.

      . Two other issues were presented relating to Count II. Since we reverse as to Count II, we find it unnecessary to discuss these issues.


author: WILLIAM E. DOYLE, Circuit Judge.

text:
    Don Camby LOWTHER, PlaintiffAppellee, v. UNITED STATES of America et al., Defendants-Appellants.
    No. 72-1807.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted May 24, 1973.
    Decided June 20, 1973.

      James H. Harrod, Oklahoma, Okl., for plaintiff-appellee.
    O. B. Johnston III, Asst. U. S. Atty. (William R. Burkett, U. S. Atty., on the brief), for defendants-appellants.
    Before PICKETT, HILL and DOYLE, Circuit Judges.
   WILLIAM E. DOYLE, Circuit Judge.

The government here appeals a judgment of the District Court for the Western District of Oklahoma in favor of plaintiff-appellee awarding him the sum of $892.50 representing the reasonable market value of certain weapons which the government had seized and forfeited. These consisted of two-9 mm German Lugers, a Winchester 30 caliber rifle, one-9 mm Luger-Drum Magazine and two boxes of miscellaneous rifle and sub-machine gun parts.

The events leading up to the seizure are important to an understanding of the problem presented to this court. On March 8, 1970, officers of the Alcohol, Tobacco and Firearms Division of the Internal Revenue Service in the process of executing a search warrant seized the weapons in question from the residence of plaintiff-appellee. He was subsequently arrested and charged in a criminal case for possession of firearms contrary to 26 U.S.C. §§ 5861(d) and 5871. The seizure by the government was pursuant to 26 U.S.C. § 5872 as having been used illegally.

On May 20, 1970, the plaintiff-appellee filed a petition to the Director of the Alcohol, Tobacco and Firearms Division of the Internal Revenue Service claiming the five items of property which had been seized and asking for remission or mitigation of forfeiture of the said items.

On October 8, 1970, appellee was tried in the criminal case and was acquitted on all nine counts. Notwithstanding this, on January 29, 1971, notice was given that the application for remission or mitigation had been denied. On January 7, 1971, apparently without the knowledge of the appellee, the weapons and parts had been destroyed by Alcohol, Tobacco and Firearms Division agents.

Subsequently, on February 23, 1971, plaintiff-appellee filed the present action in the United States District Court for the Western District of Oklahoma. This took the form of a request for review of the Director’s decision. However, at the trial it appeared that the five items had been destroyed and the trial court treated the case as an action for damages, disregarding the plaintiff’s prayer for return of the items. As noted, a money judgment was entered. The basis for the court’s decision was that plaintiff had been acquitted of illegal possession of firearms in a criminal prosecution and that this was in effect an adjudication of the legality of the property and the plaintiff’s right to possess the same. The court reasoned that since the plaintiff was entitled to the possession and was in lawful possession the seizure was necessarily invalid. A seizure to be valid must be pursued, according to the court, by showing that the possession of the items be contrary to Title 26 U.S.C., Chapter 53. Therefore, the court continued, the imposition of the forfeiture contrary to law constituted an unconstitutional deprivation of the plaintiff’s property.

The government asserts that the trial court lacked jurisdiction to grant relief because first, the administrative ruling on the petition for remission or mitigation was final and conclusive and not reviewable either directly or indirectly; secondly, it is contended that a court hearing was available to the appellee only by posting a cost bond within the time requirement of 26 U.S.C. § 7325. Failure to post the bond resulted in a waiver. The question is then whether by applying for remission of the penalty pursuant to 26 U.S.C. § 7327 rather than filing a bond pursuant to 26 U.S.C. § 7325 gave rise to a consent or tacit approval of the action of the Secretary or' his delegate in denying the application.

An important‘factor is that the property here is neither narcotics nor other contraband. On the contrary, it was determined by the trial court to have been innocently used and to have not been illegal per se. Furthermore, the appellee was adjudged by the jury in the criminal case to be not guilty. Thus, the government must justify a taking and forfeiture which was unrelated to any violation of the law and which concerned property which was validly in possession of the appellee. It boils down then to the government’s having destroyed appellee’s property without having any authority in law to do it. Consequently, the action of the Director of the Alcohol, Tobacco and Firearms Division constituted a disregard of the evidence and law in the case and was contrary to the due process clause of the Fifth Amendment.

Prior to the decision of the Supreme Court in United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), there was confusion as to the authority of officers of the government to seize and forfeit property. There were early cases which have held that such authority was absolute. Some of the older cases, on the other hand, held that an acquittal in a criminal case was a bar to the forfeiture and still other cases held that the criminal case and the forfeiture proceedings were interrelated and that the forfeiture could not be validly carried out unless there had been a conviction in the criminal case. Coin & Currency brought about some degree of order. It held first, that the forfeiture is criminal in character; secondly, it recognized the necessity for the owner of the property to have been using it in a criminal activity. It said that the forfeiture penalty is to be imposed only upon those who are significantly involved in a criminal enterprise. See 401 U.S. at 722, 91 S. Ct. 1041. It also questioned whether the forfeiture is an in rem proceeding since it is interrelated with the wrongdoing of the owner.

Also, since Coin & Currency, doubts as to the unlimited discretion of the Secretary have been removed. He may not arbitrarily deny remission in disregard of the evidence and the law and at the same time escape judicial inquiry and scrutiny.

As shown above, the Supreme Court has said that if the situation is sufficiently extreme, there will be court intervention. The form of court intervention is not defined, but this is not entirely new. Even the early cases such as Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684 (1886), have said that acquittal in the criminal case allows the defendant to assert this judgment as a defense in forfeiture proceedings.

This court has, in relatively recent times, recognized the vitality of Coffey. In the case of United States v. One 1956 Ford Fairlane Tudor Sedan, 272 F.2d 704 (10th Cir. 1959), the defendant was prosecuted for the transportation of sugar intended for use in the unlawful manufacture of distilled spirits. The result of this was a verdict of not guilty. Notwithstanding the verdict, forfeiture proceedings were undertaken against the vehicle and the sugar. This court, applying the Coffey case, held that the acquittal in the criminal case barred forfeiture action.

In the ease at bar the trial court did not specify a jurisdictional avenue. It simply ruled that the plaintiff was entitled to recover based on the taking of his property without due process of law. There is, however, a statutory remedy which is peculiarly adaptable to the present case and that is the Tucker Act which authorizes the district court to entertain an action against the United States founded upon the Constitution.

We do not regard as significant the fact that the trial court did not cite the Tucker Act since it acted in accordance with it when it ruled that it had jurisdiction to remedy a taking of property contrary to the Fifth Amendment. While the Tucker Act would not be the appropriate remedy in every case, the peculiar facts here presented giving rise as they do to a palpable taking of property without due process of law render it peculiarly appropriate.

In summary, then, we hold that the officers here acted contrary to law in seizing the property in question; that the Director acted contrary to law in disregarding the evidence and in acting without any tenable legal basis, since the property was innocent and was not being used illegally. Finally, we agree with the trial court that the appellee’s constitutional rights were violated; we hold that the taking without due process gave rise to a remedy under the Tucker Act.

It follows that the judgment should be and the same is hereby affirmed.

      . The trial court’s conclusions are set forth as follows:
      The acquittal of the Plaintiff on criminal charges involving possession of firearms in violation of 26 U.S.C., §§ 5861(d), 5871, is in effect an adjudication of the legality of the property and the Plaintiff’s right to possess the same. The Plaintiff is the actual and rightful owner of the items of personal property set forth in his Petition for Remission or Mitigation of Forfeiture and has complied with all the laws, both state and federal, pertaining thereto. The Defendant’s contention that the property was rightfully forfeited according to the provisions and procedures prescribed in 26 U.S.C. § 7325, is in error since it is paramount to the invoking of that statute that the items of property involved be in violation of Chapter 53, Title 26, United States Code. This Court has determined that the items of personal property as described in the Plaintiff’s Petition for Remission or Mitigation of Forfeiture were not held in violation of law, and as such the Order of the Internal Revenue Service to have the property destroyed was in violation of the Constitution, the laws of the United States, and as such deprives the Plaintiff of his property without due process of law. The imposition of forfeiture on the Plaintiff is penal in nature and causes an unconstitutional deprivation of personal property without just compensation.
      Consequently, the Plaintiff is entitled to a judgment in his favor for the fair market value of the items of personal property as described in his Petition for Remission or Mitigation of Forfeiture that were seized and ordered destroyed by the Internal Revenue Service.

      . Early cases of this court, e. g. United States v. Kemp, 186 F.2d 808 (10th Cir. 1951), United States v. One 1941 Plymouth Tudor Sedan, 153 F.2d 19 (10th Cir. 1946), which state that the Secretary has uncontrollable discretion are wholly inconsistent with Coin & Currency.

      . Cf. Notes 3 A.L.R.2d 738; 27 A.L.R.2d 738.

      . The Court recognized the broad scope of the forfeiture proceedings, but that it is nevertheless subject to limitations of the Constitution. The Court stated:
      An express statutory provision permits the innocent owner to prove to the Secretary of the Treasury that the “forfeiture was incurred without willful negligence or without any intention on the part of the petitioner . . . to violate the law .... 19 U.S.C. § 1618. Upon this showing, the Secretary is authorized to return the seized property “upon such terms and conditions as he deems reasonable and just.” It is not to be presumed that the Secretary will not conscientiously fulfill this trust, and the coiirts have intervened when the innocent petitioner’s protests have gone unheeded. When the forfeiture statutes are viewed in their entirety, it is manifest that they are intended to impose a penalty only upon those who are significantly involved in a criminal enterprise.

      401 U.S. at 721-722, 91 S.Ct. at 1044 (emphasis added) ■ (citations & footnote omitted).

      . The opinion of Judge Breitenstein declared :
      On the ground that the acquittal in the criminal case barred recovery in this case, the trial court directed a verdict in favor of the defendant.
      We are unable to distinguish this case from Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684, wherein it was held that the acquittal of Coffey on various liquor tax charges barred forfeiture proceedings.
      iji SH # #
      Any departure from Coffey and its “uncritical language” must come from the Supreme Court. We are bound by the rule therein announced.
      272 F.2d 70-4-705.

      . It provides that the district court has original jurisdiction, concurrent with the Court of Claims, of
      [a]ny . . . civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of any executive department, or upon any express or implied contract with the United States, or for liquidated damages in cases not sounding in tort.
      28 U.S.C. § 1346(a)(2).

      . This remedy has been applied to forfeiture proceedings by federal courts on previous occasions. United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353 (5th Cir. 1972); Jaekel v. United States, 304 F.Supp. 993 (S.D. N.Y.1969). In JaeTcel the plaintiff’s vehicle was seized as a result of conduct of her daughter. Subsequently, it was sold and the proceeds were turned over to the bank to satisfy the mortgage. An action was brought by the plaintiff alleging that the forfeiture was void in that it deprived her of her property without due process of law. The United States District Court for the Southern District of New York (Judge Bonsai) held that the Tucker Act was a proper remedy.
      In United States v. One 1961 Red Chevrolet Impala Sedan, the Fifth Circuit rejected the government’s contention that the plaintiff had not followed the proper remedy and ruled that the owner of the property invalidly forfeited had a remedy under the Tucker Act. The court did not, however, give effect to the remedy, but due to the fact that the owner had sought to get relief under Rule 60(b) in the forfeiture proceedings, affirmed the action without prejudice to the owner to institute a new suit under the Tucker Act.


author: THORNBERRY, Circuit Judge:

text:
    Allen BROWN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-1125.
    United States Court of Appeals, Fifth Circuit.
    June 29, 1973.
    Charles D. Flinn, Jr., Rome, Ga. (Court-Appointed), for petitioner-appellant.
    John W. Stokes, Jr., U. S. Atty., E. Ray Taylor, Jr., Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee.
    Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
   THORNBERRY, Circuit Judge:

This second appeal from the denial of a federal prisoner’s motion to vacate his sentence under 28 U.S.C. § 2255, presents the question whether appellant waived his rights to file the motion by failing to raise certain allegations on direct appeal from his conviction and by later deciding to seek a reduction of his sentence. On an earlier appeal from a summary denial of appellant’s motion, a panel of this court remanded the case to the court below for an evidentiary hearing on the question of waiver. Brown v. United States, 5th Cir. 1972, 462 F.2d 681. Following a comprehensive hearing, that court denied the motion for a second time, entering a memorandum order holding that appellant had waived his right to file a Section 2255 motion by consciously electing to seek a reduction in his sentence. Although the fact findings made below are unimpeachable, we differ with the court below as to the legal conclusions to be drawn from those facts, and accordingly reverse the judgment and direct the district court to conduct an evidentiary hearing on the merits of appellant’s Section 2255 claim.

On October 22, 1969, appellant was convicted by a jury and sentenced to two concurrent four-year terms for two violations of the Dyer Act, 18 U.S.C. § 2312. On the evening after his trial, one of the jurors in his case, a Mrs. Corneeley, informed appellant’s trial counsel, James A. Robbins, that another juror had discussed matters outside the record with a Government witness during a recess in the jury’s deliberations. The next morning Robbins relayed this information to the trial judge, who suggested that Robbins file a motion and supporting affidavits alleging misconduct affecting the jury. Robbins prepared the motion, but Mrs. Corneeley refused to sign an affidavit or to cooperate in any other fashion.

In the meantime, appellant had been taken from Georgia to Louisiana to face other charges there. He first learned of the possibility of juror misconduct several days after his trial when he telephoned Robbins from Louisiana about an unrelated matter. During this conversation, Robbins told appellant that Mrs. Corneeley had refused to cooperate, and that they could proceed with the direct appeal of appellant’s conviction without waiving appellant’s right to collaterally attack his conviction on the ground of misconduct affecting the jury.

On direct appeal, Robbins did not raise the question as to the alleged communication between juror and witness. Appellant’s conviction was affirmed on May 1, 1970, United States v. Brown, 5th Cir. 1970, 425 F.2d 728; and on May 6, 1970, Robbins visited appellant in the Atlanta Federal Penitentiary to tell him of the outcome of the appeal and to discuss the future of his case with him. At this meeting, Robbins told appellant that three alternatives were open to him: (1) seek review of the conviction in the Supreme Court, (2) seek to vacate the conviction because of alleged juror misconduct, or (3) seek to reduce appellant’s sentence. Robbins pointed out to appellant that obtaining a reversal and right to retrial in the Supreme Court might be an empty victory, because a crucial defense witness, Huff, had told Robbins that he would not be available to testify in a subsequent trial of appellant. As to the second alternative, Robbins predicted that Mrs. Corneeley would continue her refusal to freely testify concerning her allegation of juror misconduct, and that appellant would probably have to compel her testimony. Finally, Robbins told appellant of courthouse gossip to the effect that the trial judge was contemplating a reduction in his sentence. The court below found — and substantial evidence supports the finding — that appellant knowingly and intelligently chose to seek a reduced sentence. In June 1970 appellant himself sent the trial judge a letter requesting such a reduction, and in July Robbins filed a motion to reduce the sentence.

Before either of these motions reached him, however, the trial judge had independently resolved to reduce appellant’s sentence to two concurrent two-year terms, in order to conform the sentence to those assessed against appellant’s two co-defendants. An order reducing the sentence to two concurrent two-year terms had been entered on June 15, 1970, but for some reason neither appellant nor Robbins had been informed of this action. Upon learning of the reduction in sentence, Robbins formally withdrew his motion to reduce appellant’s sentence.

In arguing that appellant waived his right to file a Section 2255 motion alleging misconduct affecting the jury, the Government directs our attention to two distinct events. The first is appellant’s taking a direct appeal from his conviction without asserting possible juror misconduct. It is hornbook law that a Section 2255 motion is not a “substitute for appeal.” E. g., Larson v. United States, 5th Cir. 1960, 275 F.2d 673. Section 2255 affords to federal prisoners a means of collaterally attacking convictions and sentences, and was not intended to provide a vehicle for obtaining review of ordinary trial errors that can and should be raised on appeal. 2 Wright, Federal Practice & Procedure (Criminal) § 595. Accordingly, if a prisoner consciously and deliberately fails to raise such an allegation on direct appeal from his conviction, he is held to have waived his right to file a Section 2255 motion raising that allegation. Larson, supra.

Appellant’s allegation of misconduct affecting the jury, however, could not have been raised on direct appeal. When his appellate brief was filed, the predicate for appellate review of the contention — a recorded event, a timely objection, and a ruling by the trial court — was nonexistent. The necessary development of facts independent of the trial transcript had been obstructed by Mrs. Corneeley’s refusal to cooperate with appellant’s counsel. At the time the direct appeal was taken, there was, in short, nothing to appeal from, in regard to the juror misconduct question. We agree with the court below, that, at least until the May 1970 meeting at the Atlanta Federal Penitentiary, “the possibility of asserting a jury tampering charge had not been abandoned.” Accordingly, we hold that appellant did not waive his right to file a Section 2255 motion by appealing his conviction without asserting possible juror misconduct.

The court below, however, concluded that appellant waived his right to file a Section 2255 motion by “consciously electing” to seek a reduction in sentence, after the discussion with Robbins at the Atlanta Federal Penitentiary in May 1970. The record clearly indicates that appellant’s decision to seek a reduction in sentence was knowing and voluntary. Whether that decision was a true waiver of his right to file a later section 2255 motion, however, is another question. The concept of waiver or election necessarily implies ' the adoption of a course of conduct that is inconsistent with other courses of conduct available to an individual; the question is therefore whether a decision to seek a reduced sentence is inconsistent with a later decision to move for vacation of the conviction.

We find no inconsistency between a motion to reduce sentence and a later collateral attack on the conviction pursuant to Section 2255, which, by the terms of the statute, “may be made at any time.” The motions to reduce the sentence were merely pleas for leniency; the validity of the underlying conviction and, indeed, of the sentence itself was not and could not be put in issue by such motions. 2 Wright, Federal Practice & Procedure (Criminal) §§ 583, 585. On the other hand, a motion to vacate pursuant to Section 2255 is “an independent and collateral inquiry into the validity of the conviction.” United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952). Such a motion is not a step in a criminal prosecution. It is civil in nature, and is governed by the rules and statutes applicable to civil actions. See 2 Wright, Federal Practice & Procedure (Criminal) § 590.

Moreover, it is important to recall that neither of the motions to reduce sentence filed on appellant’s behalf had any effect on his case. The record establishes beyond dispute that the trial judge reduced appellant’s sentence sua sponte, before considering either of the motions. The situation is no different than it would have been if appellant and Robbins had failed to carry out their decision to seek a reduced sentence.

Under these circumstances, we hold that appellant did not waive his right to file a Section 2255 motion by deliberately choosing to seek a reduced sentence. Accordingly, we reverse the judgment below and remand for an evidentiary hearing on appellant’s allegation of misconduct affecting the jury.

      . After the telephone call in October 1969, it is unclear whether Robbins and appellant again discussed the case until the May 6 meeting. At the hearing below, Robbins testified that he “thought” that he and appellant had talked at some time during the interim, but that he was not certain that another conversation had taken place. Appellant, on the other hand, testified unequivocally that there were no contacts between him and Robbins between the time of the October 1969 telephone call and the May 6 visit at the penitentiary.

      . It is impossible to ascertain from the record before us whether the motions for reduction filed both by appellant himself and by Robbins on his behalf, were made pursuant to 28 U.S.C. § 2255, or were filed under Rule 35, F.R.Crim.P. In all likelihood, however, the trial judge would have treated them as Rule 35 motions, because the basis for the motions — and the trial judge’s own reason for reducing the sentence sua sponte — was merely the inconsistency between appellant’s sentence and those of his co-defendants, who had been more deeply involved in the Dyer Act violations than had appellant. In seeking to reduce a sentence that, like appellant’s, was within the maximum prescribed by law, such a purely equitable ground would not have been cognizable under Section 2255. See Cassidy v. United States, E.D.Mo. 1969, 304 F.Supp. 864

      . This is of course subject to the condition that a Section 2255 motion may not encompass allegations that should have been raised on direct appeal. See Larson, supra, and accompanying text.


text:
    Beryl T. NICKERT, Executrix of the Estate of John Nickert, Deceased, Plaintiff, v. PUGET SOUND TUG & BARGE COMPANY, Defendant, Cross-Complainant-Appellant, General Motors Corporation, Defendant, Cross-Complainant-Appellee, San Diego Marine Construction Company, Defendant, Cross-Complainant-Appellee.
    No. 72-1493.
    United States Court of Appeals, Ninth Circuit.
    June 13, 1973.
    See also D.C., 335 F.Supp. 1162.

      Lewis A. Hutchison (argued), of Detels, Draper & Marinkovich, Seattle, Wash., for appellant.
    William A. Helsell (argued), T. Dennis George, of Helsell, Paul Fetterman, Todd & Hokanson, Guttormsen, Scholfield, Willits & Ager, Seattle, Wash., for appellee.
    Before BROWNING and DUNIWAY, Circuit Judges, and THOMPSON, District Judge.

       The Honorable Bruce R. Thompson, United States District Judge, Reno, Nevada, sitting by designation.

   OPINION

PER CURIAM:

Puget Sound Tug & Barge Company (Puget) was the owner of the tug Mercury. San Diego Marine Construction Company (San Diego) was the builder of the vessel, and General Motors Corporation (GMC) was the manufacturer of the tug’s main propulsion engines. On August 27, 1967, John Niekert, the First Assistant Engineer, died as the consequence of a fire on the Mercury. This wrongful death action was brought against Puget, on allegations of the vessel’s unseaworthiness, against San Diego for defective vessel design and manufacture, and against GMC for defective design and manufacture of the vessel’s starboard main engine.

Puget brought a cross-action against both San Diego and GMC for fire damage to the vessel and for indemnity if it should be held liable to plaintiff for Nickert’s death. San Diego also cross-claimed against GMC for indemnity in the event it should be found liable to plaintiff for Nickert’s death and for indemnity in the event it should be found liable for the fire damage to the tug.

At the conclusion of the trial, the jury returned special verdicts, one on the issues between plaintiff and the three defendants, the other on the issues respecting liability and indemnity under the cross-claims between the three defendants. The first verdict resulted in a judgment for damages for wrongful death in favor of plaintiff and against the three defendants which is final and has been satisfied.

Post-trial motions were filed. San Diego moved for a judgment for indemnity against GMC and for dismissal with prejudice of'Puget’s claim against it for fire damage to the vessel. These motions were granted and the rulings have been affirmed on appeal.

Puget’s motion for a new trial was granted. An attempt by GMC to appeal from this order was dismissed, the order being nonappealable. Thus, the action remained pending in the District Court for retrial of the issues between Puget and GMC concerning the latter’s liability to Puget for indemnity against the Niekert judgment and for fire damage to the tug. Both Puget and GMC presented motions for partial summary judgment. After consideration of the motions, the District Court entered the following order which is the subject of the instant appeal:

“If Puget Sound Tug & Barge Company is found negligent in any manner proximately causing or contributing to the fire or the death of John Nickert, it will be denied any relief on its cross-claim for indemnity.”

The trial judge certified that the ruling involves a controlling question of law as to which there is substantial ground for a difference of opinion and that an immediate appeal, as authorized by 28 U.S.C. § 1292(b), may materially advance the ultimate termination of this litigation. An order of this Court granted the petition of Puget Sound Tug & Barge Co. for leave to appeal under 28 U.S.C. § 1292(b). We have concluded that the order granting the appeal was improvidently entered. It is, therefore, appropriate to vacate the order granting the interlocutory appeal. Molybdenum Corporation of America v. Kasey, 279 F.2d 216 (9th Cir. 1960); United States Rubber Company v. Wright, 359 F.2d 784 (9th Cir. 1966).

The question involved in the district judge’s pre-trial ruling is this: When a seaman or his representative is not precluded by statute from suing his employer for personal injury or death, does the decision in Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318 (1952), require that contribution or indemnity be denied among joint tortfeasors?

The trial court answered this question in the affirmative. Other courts have agreed. In re Standard Oil Company, 325 F.Supp. 388 (N.D.Cal.1971) ; American Dredging Co. v. Gulf Oil Corporation, 175 F.Supp. 882 (E.D.Pa.1959). On the other hand, some courts have recently distinguished Halcyon in eases where the proposed indemnitor is not protected by a statute precluding suit against him by his employee. Horton & Horton, Inc. v. T/S J. E. Dyer, 428 F.2d 1131 (5th Cir. 1970); Watz v. Zapata Off-Shore Co., 431 F.2d 100 (5th Cir. 1970); In re Seaboard Shipping Corp., 499 F.2d 132 (2nd Cir. 1971).

While the question is an interesting one, which has not been decided by this Circuit Court, the District Court’s pre-trial ruling thereon is not the type of order which will support the jurisdiction of this Court on appeal under 28 U.S.C. § 1292(b). The trial court’s announcement of its opinion on this question of law, although characterized as partial summary judgment, is nothing more nor less than an hypothetical, advisory opinion. It is subject to revision or reversal at any time by the trial judge to the point where a definitive action has been taken on the question ; for examples, an instruction to the jury, or the adoption of a conclusion of law in a trial to the court. Similarly, an announcement by this Court of its opinion of the trial judge’s tentative opinion would be purely advisory and might place the judge in a difficult, if not untenable position at the time of trial. Assume, for instance, that the Supreme Court had meanwhile expressed itself in terms incompatible with this Court’s ruling, would not the trial court deem itself bound by the pronouncement of this Court as the law of the ease ?

An announcement by a trial court of its then opinion on an abstract question of law prior to the taking of final, definitive action affecting the substantial rights of the parties is not an “order” under 28 U.S.C. § 1292(b) which will support an interlocutory appeal. Such an announcement is purely advisory, hypothetical and tentative on an issue which may never arise. Cf. United States v. Woodbury, 263 F.2d 784 (9th Cir. 1959); Control Data Corp. v. International Business Machines Corp., 421 F.2d 323 (8th Cir. 1970).

The order heretofore entered granting the interlocutory appeal is vacated.


author: PER CURIAM.

text:
    SCREW MACHINE TOOL COMPANY, Plaintiff-Appellee, v. SLATER TOOL AND ENGINEERING CORPORATION, a Michigan corporation, et al., Defendants-Appellants.
    No. 72-1950.
    United States Court of Appeals, Sixth Circuit.
    Argued April 16, 1973.
    Decided June 15, 1973.
    Don K. Harness, Detroit, Mich., for defendants-appellants; Robert L. Boynton, Harness, Dickey & Pierce, Detroit, Mich., on brief.
    William R. Brashear, Livonia, Mich., for plaintiff-appellee; Brashear, Bra-shear & Duggan, Livonia, Mich., on brief.
    Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and LAMBROS , District Judge.

       Honorable Thomas D. Lambros, United States District Judge for the Northern District of Ohio, sitting by designation.

   PER CURIAM.

This is an appeal from an order of the District Court finding the appellants in contempt of a prior order entered in an unfair competition action. The appellee, Screw Machine Tool Company, brought a suit for infringement of registered trademarks and for other acts allegedly constituting unfair competition against the appellant, the Slater Tool and Engineering Corporation. As a result of that suit, a consent decree was entered on October 10, 1966, by Judge McCree which prohibited the appellants from the use of the appellee’s corporate name or from using advertising which might tend to lead one to believe that the appellant was connected with the appellee’s company. Judge McCree also ordered that a retraction be printed.

Subsequently, the appellants were found guilty of contempt for failing to print the retraction. And again, in 1967, in an action brought before Judge Levin, the appellants were found guilty of contempt for violating the consent decree because it had printed its name as “Slater Screw Machine Tool Company” with “Slater” on one line and “Screw Machine Tool Company” on a separate line. Although Judge Levin, in interpreting the consent decree, concluded that the use of the assumed name “Slater Screw Machine Tool Company” in and of itself did not violate the consent decree, he concluded that, in view of the previous acts of the appellants, which created the impression that the appellant company was affiliated with the appellee, any use of “Slater Screw Machine Tool Company” or any other name which sets the words “Screw Machine Tool Company” apart violates the 1966 consent decree because placing the word “Slater” on a different line and in distinguishable type from the rest of the name is likely to cause confusion as to the source of products.

The action from which this appeal was perfected was brought by the appellee as a Motion for Contempt, alleging that the appellants had again violated the consent decree by preparing and circulating two catalogs in which the name Slater Screw Machine Tool Company appears with Slater on a separate line or in a distinct type of print from the words Screw Machine Tool Company, and by printing and distributing brochures and catalogs that are for all practical purposes exact copies of the appellee’s brochures and catalogs. The District Court found that the appellants had violated the consent decree and enjoined the appellants from “in any way, manner or form using or advertising” the appellee’s corporate name, Screw Machine Tool Company. The appellants have perfected this appeal from that judgment.

The appellants’ first contention is that the appellee has no right to prevent anyone from copying its catalogs and brochures because none of these materials have ever been copyrighted by the appellee. While it may be true that, absent other circumstances, uncopyrighted material may be reproduced without limitation as long as purchasers using ordinary care will know whose publications and whose products they are utilizing, the appellants’ actions must be judged in light of the restrictions of the consent decree of 1966. That decree restricts the appellants from the literal use of the appellee’s corporate name and trademarks, from passing off or providing others with the means of passing off in any manner appellants’ products as those of the appellee or as having any connection with the appellee, or from using any marks or doing any acts or things likely to induce the belief on the part of the public that the appellants or the appellants’ products are in any way connected with the appellee or with the appellee’s products.

In light of these restrictions, the issue for the determination of the District Court was whether the actions of the appellants in reproducing parts of the appellee’s catalogs and brochures would induce the belief that the appellant company was in any way connected with the appellee. Since the basis of an action for unfair competition is fraud (Goldwyn Pictures Corp. v. Goldwyn, 296 F. 391, 401 (2d Cir.- 1924)), the material under consideration need not be the subject of a valid common law or statutory trademark or copyright. For example, in Socony-Vacuum Oil Co. v. Oil City Refiners, 136 F.2d 470 (6th Cir.), cert. denied, 320 U.S. 798, 64 S.Ct. 369, 88 L.Ed. 482 (1943), this Court held that an action for unfair competition would lie even where there was no infringement of an exclusive right in the name or symbol. Similarly, the lack of a copyright in the advertising or promotional material used by the appellee is not a defense to an action for unfair competition.

The issue, therefore, is not one of copyright infringement, but whether there would be a great likelihood of confusion from the appellants’ copying and circulating the appellee’s catalogs and brochures. A court must consider more than just superficial comparisons of the material involved; it should also consider the conditions and incidents which form the background of the controversy, and should look not only to the individual violations, but also to the total impression as a whole created by the brochures and catalogs. Stewart Paint Mfg. Co. v. United Hardware Distributing Co., 253 F.2d 568, 572 (8th Cir. 1958); Standard Oil Co. v. Standard Oil Co., 252 F.2d 65, 73-74 (10th Cir. 1958); Albert Dickinson Co. v. Mellos Peanut Co., 179 F.2d 265, 270 (7th Cir. 1950).

The appellee has been circulating its brochures and catalogs since about 1950, and asserts that the trade has come to identify them with the appellee. The materials which the District Court found to be violative of the consent decree are two catalogs and a brochure, circulated by the appellants since about 1966, which are almost identical to the appellee’s, employing the same serial numbers, the same illustrations and the same descriptive material. The appellants use the name “Slater Screw Machine Tool Company” in place of “Screw Machine Tool Company,” but “Slater” is a close enough approximation of the appellee’s trademark “Slitters” to result in a likelihood of confusion, particularly since the appellees generally use “Slitters” in script and the appellants customarily employ “Slater” in script in brochures and promotional material. In addition, the addresses of each are in the Detroit area, and each distributes its promotional material and catalogs nationally.

The District Court found that both of these catalogs were printed after the consent decree and after the interpretative order of 1967. Although there is some dispute as to when the “National Catalog” was printed, the Court’s findings that the appellants could not have had this catalog printed prior to the consent decree and that the appellants’ use of these catalogs was a violation of the consent decree are not clearly erroneous.

In regards to the contempt violations for printing the name “Screw Machine Tool Company” on a separate line, the appellant points out that this violation appeared on only 17 of the several hundred pages in the “Willard Catalog,” and contends that the omission to correct these pages was an oversight, and that such a relatively small number of violations of the consent decree should not warrant a contempt judgment. This argument is unpersuasive for two reasons. First, of the 17 pages, only 6 are reproductions from the appellee’s catalog; the rest are new pages, which indicates that the offending language could not have been the result of an unnsuccessful attempt to delete this language from the appellants’ publications. Secondly, the appellants would not be relieved of responsibility regardless of the number of violations or the cause thereof because they have a positive duty to insure that the forbidden matter does not appear. Singer Mfg. Co. v. Sun Vacuum Stores, 192 F.Supp. 738, 741 (N.J.1961). The frequency of the violations is not material, nor are the good intentions of the violator. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 93 L.Ed. 599 (1949); Babee-Tenda Corp. v. Scharco Mfg. Co., 156 F.Supp. 582, 587 (S.D.N.Y.1957).

We have considered the other contentions of the appellant and find them to be without merit. The judgment of the District Court is affirmed.


author: JAMES M. CARTER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Tony S. HERNANDEZ, Defendant-Appellant (two cases). UNITED STATES of America, Plaintiff-Appellee, v. Sergio T. RAMOS, Defendant-Appellant.
    Nos. 73-1318, 73-1425 and 73-1426.
    United States Court of Appeals, Ninth Circuit.
    June 25, 1973.

      Gerald G. Eastman (argued), James H. Garcia, Phoenix, Ariz., for defendants-appellants.
    Thomas N. Crowe, Asst. U. S. Atty. (argued), William C. Smitherman, U. S. Atty., Phoenix, Ariz., for plaintiff-appellee.
    Before CHAMBERS and CARTER, Circuit Judges, and WOLLENBERG, District Judge.

       Honorable Albert C. Wollenberg, United States District Judge, Northern District of California, sitting by designation.

   OPINION

JAMES M. CARTER, Circuit Judge:

Case #73-1318. Tony S. Hernandez was convicted in a court trial on two felony counts in an indictment and appeals his convictions.

Case #73-1425 and #73-1426. Hernandez and Sergio T. Ramos were each convicted on two felony counts in another indictment tried before a jury. Hernandez appeals in #73-1425 and Ramos in #73-1426.

The four sentences imposed on Hernandez were all made to run concurrently, as were the sentences on the two counts under which Ramos was convicted.

The appeals were consolidated for argument.

Contentions

Hernandez makes four contentions. Ramos makes one contention — that the trial court refused to instruct, as requested by him, on the “procuring agent” theory. We summarily consider Hernandez’ contentions and consider more fully the contention of Ramos. We affirm all convictions.

Hernandez Appeals #73-1318 and #73-1425

(1) Without reciting the evidence in the first trial, we find it sufficient and find no error in the denial of the motion for judgment of acquittal. (#73-1318)

(2) The order of proof is not in question. We find the evidence of the first conspiracy was established by evidence independent of the evidence of which Hernandez complains. Moreover, there was evidence from which the jury could conclude that Hernandez admitted to agent Florence, his participation in the first conspiracy. As to the second conspiracy, Hernandez complains of statements by Ramos supposedly occurring on August 23, 1972, before the inception of the conspiracy. Actually, the statement occurred on August 27, 1972, during the period of the second conspiracy. (#73-1318 and #73-1425)

(3) We hold there were two conspiracies. The test as to identity of offenses is whether the “same offense” is involved in each case. Here there were different parties, different time periods, and different overt acts in the two conspiracies. The required evidence was different. In any event, if there were two conspiracies, there were also two valid substantive counts on which Hernandez was convicted and the concurrent sentence doctrine applies. (#73-1318 and #73-1425)

(4) Hernandez’ claim that the court erroneously admitted an out-of-court admission “concerning overt acts which occurred during a period outside the period stated in the indictment,” is without merit. The record is clear that the court admitted the evidence, not as to overt acts but as an admission against interest. (# 73-1425)

Ramos Appeal #73-1426

Ramos raises a question which is apparently one of first impression under 21 U.S.C. § 841(a) (1) (1970).

The trial judge refused Ramos’ requested instruction on the “procuring agent” theory. The basis for the refusal was that 21 U.S.C. § 841(a)(1) (1970), under which Ramos was charged, was a new statute materially different from former 21 U.S.C. § 174, which was involved in Ramos’ principal case authority, United States v. Prince (3 Cir. 1959) 264 F.2d 850, 852-853.

We affirm and hold a “procuring agent” instruction is improper under a charge based on 21 U.S.C. § 841(a)(1).

21 U.S.C. § 841(a)(1) prohibits distribution of narcotics, as opposed to the facilitation of sale (or facilitation of transportation or concealment) prohibited under former § 174. Former § 174 was part of a conglomeration of over 50 old laws based on Congress’ taxing power, which in 1970 were replaced by a cohesive statutory system rooted in Congress’ powers to regulate interstate and foreign commerce. Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 91-513, 84 Stat. 1236; see 21 U.S.C. § 801; 1970 U.S.Code Cong. & Adm.News, pp. 4571, 4584, 4596.

Under the new statute, “distribute” means “to deliver ... a controlled substance.” 21 U.S.C. § 802(11). “Deliver” means “the . . . transfer of a controlled substance, whether or not there exists an agency relationship.” 21 U.S.C. § 802(8) (emphasis added). Thus, by its terms, the new statute excludes the “procuring agent” defense in toto.

Furthermore, Prince, supra, was a case of facilitation of sale. This circuit refused to apply Prince beyond its specific circumstances, in the facilitation of transporation ease of Vasquez v. United States (9 Cir. 1961) 290 F.2d 897, 898-899. We had earlier indicated disapproval of the defense in a facilitation of sale case. Bruno v. United States (9 Cir. 1958) 259 F.2d 8, 10. Thus it is the law of this circuit, even under the former statutes, that a “procuring agent” may properly be convicted of facilitation of either transportation or sale. Garcia De La Rosa v. United States (9 Cir. 1969) 418 F.2d 562, 563; Vasquez, supra (transportation); Cerda v. United States (9 Cir. 1968) 391 F.2d 219, 220 (per curiam), cert. denied, 393 U.S. 872, 89 S.Ct. 163, 21 L.Ed.2d 142 (sale, concealment, transportation).

Without limiting the new statute, we observe that one who “distributes” (“delivers”) under it is akin to one who “facilitates” under the former statute, at least so far as he is engaged in handling contraband during a narcotics transaction, as here. Cf. United States v. Foster (1 Cir. 1972) 469 F.2d 1, 3 (26 U.S.C. §§ 4704-05). Ramos admitted on the witness stand that he had obtained a package of heroin and given it to the government informer. He thus is clearly guilty of distributing the heroin under 21 U.S.C. § 841(a)(1) (1970).

The judgments of conviction are affirmed in both cases.

      . Defendant’s Requested Instruction No. 6 reads:
      “In determining whether the defendant Ramos was a distributor of the heroin, you must keep in mind the difference between dealing with a purchaser as a distributor of heroin and acting for him as a procuring agent. If you find the defendant Ramos undertook to act on behalf of a prespective [sic] purchaser rather than in his own behalf, and in so doing received the heroin from a third person with whom he was not associated in distributing and thereafter delivered it to the buyer, the defendant Ramos would not be a distributor and could not be convicted of distribution and conspiracy to distribute under the indictment.”