author: GODBOLD, Circuit Judge:

text:
    Harold Raymond HOOKS, Petitioner-Appellant, v. R. V. ROBERTS, Warden, Hillsborough County Convict Camp, Respondent-Appellee.
    No. 72-3621
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 18, 1973.
    Rehearing Denied July 19, 1973.
    Harold Hooks, pro se.
    Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Nelson E. Bailey, West Palm Beach, Fla., for respondent-appellee.
    Before BELL, GODBOLD and IN-GRAHAM, 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.

   GODBOLD, Circuit Judge:

We affirm the order of the District Court denying the petition of appellant Hooks for the writ of habeas corpus. Represented by retained counsel, Hooks was convicted in Florida state court of two counts each of possession and sale of LSD. Prior to this case he had sought post-trial relief in courts state and federal.

Appellant’s present major contention is that he was prejudiced in a constitutional sense on his direct appeal because his attorney, a public defender appointed to represent him in the appeal, failed to confer with him and, as a consequence, the attorney did not raise before the Florida appellate courts trial errors which should have been raised. At the threshold, we lay to rest appellant’s notion that appointed counsel prosecuting an appeal on an adequate trial record is constitutionally required to confer with his client about the legal issues to be presented on appeal. This does not, however, dispose of the question of whether,. independently of what arguably might have been said in an attorney-client conference, the services of appellate counsel did not meet constitutional standards of effective assistance because he omitted to present on the appeal issues which he should have raised. The most direct way to approach this question is that taken by the District Court, which is to examine the alleged trial errors to which appellant refers to see if they contain sufficient merit — actual or arguable — that his appellate counsel can be faulted for not having raised them. They are as follows:

(1) That Hooks was denied the right to speak at his motion for new trial. The habeas court disposed of this by determining as a matter of federal law that a defendant represented by counsel has no such right. This, however, did not answer the question of whether there was possible merit to the assertion as a matter of state law. Hooks has referred us to no Florida law providing that a convicted defendant has the right to speak at hearing of a motion for new trial and we find no such law.

(2) That the trial court erred in admitting into evidence testimony of a deputy sheriff concerning inculpatory statements made by Hooks. The state trial transcript filed with the District Court includes a proper hearing conducted by the trial judge outside the presence of the jury. This reveals that the deputy went to a laboratory to deliver to Hooks’ expert chemist one of the capsules allegedly sold by Hooks to a government agent and to observe tests to be made by the expert, and upon arrival found Hooks at the laboratory. The two engaged in conversation. Hooks was not in custody. There was no evidence that the deputy began the conversation. There was no evidence that he interrogated Hooks. Hooks’ inculpatory statements were, in effect, that he sold the questioned material to naroctics agents, that the agents were well disguised, and that his only available defense was to attempt to show by analysis that the material was not a narcotic. Nothing in Hooks’ statements about which the deputy testified was inconsistent with Hooks’ own position at trial — he did not deny the sale and stood on the defense that the material was not forbidden by law. The objections to these statements made to the trial judge in the hearing outside presence of the jury were that no Miranda warnings were given and that the statements were immaterial. Neither objection was tenable. Post-trial the point is made that when the conversation occurred Hooks had already retained counsel so that the testimony was inadmissible under United States v. Massiah, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Not only is there no showing of the kind of police misconduct which would fall within Massiah, see United States v. DeLoy, 421 F.2d 900 (CA5, 1970), but also no Massiah-based objection was made either at the hearing or later when the deputy testified about the statements. Objection at either time would have given the prosecution the opportunity to inquire into the Massiah issue.

(3) That the trial court erred in refusing to admit into evidence a pamphlet containing a speetograph which Hooks’ expert had relied upon and referred to in his testimony. No basis was shown then, or is shown to this court, for admissibility of the pamphlet.

(4) That Hooks was convicted of two separate offenses consisting of two separate deliveries to two different agents on the same day, and that he was deprived of due process because he was not informed of the facts on which each conviction was based. We have difficulty in understanding this, but it appears to be no more than an attack on the sufficiency of the evidence, an issue raised on direct appeal from the conviction and decided adversely to appellant on an adequate record. The federal habeas court, nevertheless, again considered the issue and rejected Hooks’ argument.

(5) That he was denied the right to speak at sentencing. The habeas judge examined, and we have examined, the minutes which show that Hooks was offered the right to speak and said nothing.

Thus none of the errors allegedly committed by the state trial court possessed sufficient colorable or arguable merit that petitioner’s appellate counsel failed in either diligence or effectiveness by not pressing them on appeal.

A related or overlapping claim by Hooks is that he was deprived of constitutional rights because neither he nor his lawyer had a transcript of the hearing on motion for new trial and of the sentencing proceedings. This claim is tied in with the contentions already disposed of above that appellant was deprived of his right to speak at the motion for new trial hearing and at sentencing. Hooks also asserts that he was not permitted by his attorney to obtain and use the trial transcript. If a defendant is represented by counsel on appeal who has a copy of the trial transcript, there is no constitutional requirement that the defendant also be provided with physical custody of a copy of the transcript. Smith v. Beto, 472 F.2d 164 (CA5, 1973) and United States v. Fay, 230 F.Supp. 942, 948 (S.D.N.Y.1964).

Appellant’s motion to strike the brief of appellee is denied.

The decision of the District Court is affirmed.

      . For the reported history of Hooks’ prior litigation, direct and collateral, see: Hooks v. Colbath, 440 F.2d 1068 (CA 5), cert. denied, 404 U.S. 911, 92 S.Ct. 236, 30 L.Ed.2d 183 (1971) ; Hooks v. Fourth District Court of Florida, 442 F.2d 1042 (CA 5, 1971) ; Hooks v. Florida, 250 So.2d 322 (Fla.App.1971), cert. denied, 253 So.2d 424 (Fla.1971).

      . In. addition to the alleged trial errors, Hooks points to the public defender’s failure to appeal from the trial court’s order setting supersedeas bond for purposes of appeal. This contention, as a springboard for a claim of ineffective counsel, is so lacking in merit as to require no comment.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Henry JENKINS, aka Terry Lee Jenkins, Defendant-Appellant.
    No. 72-3679.
    United States Court of Appeals, Fifth Circuit.
    June 18, 1973.

      Morton Orbach, South Miami, Fla. (court-appointed), for defendant-appellant.
    Robert W. Rust, U. S. Atty., William R. Northcutt, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
   PER CURIAM:

Jenkins was convicted by the lower court sitting without a jury of knowingly and intentionally distributing a controlled substance, heroin, in violation of Title 21, U.S.C., § 841, in consequence of a sale to an undercover U. S. Bureau of Narcotic Drugs agent, Campbell.

Jenkins raises two contentions on appeal: (1) that the United States violated his Fifth Amendment due process rights by using an informer, Giles, who was retained on a contingent fee basis; and (2) that the lower court’s finding that entrapment did not occur, was contrary to the manifest weight of the evidence. We find each contention to be meritless and affirm.

As to the first point, although Giles testified that he made several contacts with drug sellers about this time, and was rewarded financially when a buy was made and not paid when a sale did not take place, it is clear from the evidence that no specific arrangement for payment existed and also that no particular person was the target of the buy effort, but rather that Giles went with agent Campbell to a specified bar to attempt a buy from whomever might be found there. It is also significant that in this case the buy was not made from Jenkins by the informer, Giles, but rather by the agent, Campbell, after Giles solicited Jenkins to provide heroin telling Jenkins that “his cousin’s wife was Jonesing.” Thus, the problem noted in Williamson, note 3, supra, that a contingent fee arrangement “might tend to a ‘frameup’ ” by an informer is not present. The informer did not make the buy. The circumstances present here take this case outside the ambit of Williamson and Bullock.

As to the entrapment issue, the judge as the trier of fact had to make a determination whether the sale was induced by the government, and if there was inducement, whether an unwary criminal or an unwary innocent person was entrapped into committing the offense. We think we cannot on this record set aside the fact-finder’s determination of guilt. Although Jenkins was an eighteen year old with no prior conviction and it was not shown that he had made a prior sale, or had a reputation as a dealer in narcotics, his willingness to commit the crime was convincingly demonstrated by his statement to Campbell after the sale to the effect that “if you need more, I’ll be here”.

We note one other occurrence during the trial. After finding Jenkins not guilty under Count One, charging knowing and intentional possession with intent to distribute the controlled substance (heroin), apparently because when Campbell asked for five bags of “smack,” a $10.00 purchase, Jenkins with only two or three bags on his person had to fill out the order by borrowing two or three bags from a friend, the trial judge cryptically remarked, as to the distribution count, Count Two:

“there is nothing to decide for me, really. I hate to be that blunt about it, but there is no decision I have to make under Count Two. He confirms it. There is nothing for me to decide.”

Taken at its facial meaning, this was not correct. The question certainly remained of whether the appellant had the general intent to distribute when an opportunity was offered. We think however that the judge meant only to say that by his own testimony Jenkins offered proof of the physical elements of the offense. The remark is troublesome but does not afford a basis for a decision that improper standards were used by the trial judge in determining guilt.

Affirmed.

      . The court acquitted Jenkins under Count One of the two count indictment. Count One charged that Jenkins knowingly possessed a controlled substance, heroin, with intent to distribute, also in violation of § 841.

      . Citing and relying upon Williamson v. United States, 5 Cir. 1962, 311 F.2d 441, and Bullock v. United States, 5 Cir. 1967, 383 F.2d 545.

      . That is to say that Jenkins was not induced by government agents to commit a crime which he was not otherwise predisposed to commit, citing Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, and Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848.

      . Jenkins’ understanding of “Jonesing” was “vomiting and their stomachs cramping and all like that. So, you know, they think if they get some heroin, you know, in their systems it will stop.”

      . Pierce v. United States, 5 Cir. 1969, 414 F.2d 163, 166-167, cert. denied 1969, 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425; United States v. Jones, 1973, 473 F.2d 293 [decided February 2, 1973].


author: GOLDBERG, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ORLANDO PAPER CO., INC., Respondent.
    No. 73-1197
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 5, 1973.

      Elliott Moore, Acting Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Harold A. Boire, Director Region 12, N. L. R. B., Tampa, Fla., for petitioner.
    Norman F. Burke, Orlando, Fla., for respondent.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   GOLDBERG, Circuit Judge:

In this case the National Labor Relations Board petitions the court to enforce a Gissel-type bargaining order against respondent, Orlando Paper Co., Inc. In the order the Board adopted the comprehensive decision of the Trial Examiner, which had found (1) that the Union, Teamsters Local No. 385, had achieved a valid card majority, (2) that the Company had engaged in extensive unfair labor practices that tended to undermine the Union’s majority, and (3) that a bargaining order was the most appropriate means to remedy the Company’s violations of the N.L.R.A.

The Company urges that enforcement of the order be denied for two reasons, both of which we find to be without merit. First, it argues that the Board erred in finding that the Company’s unfair labor practices had a tendency to undermine the majority strength of the Union and that in fact the practices did not have that result. The Company argues that since the election process was not impeded, it was inappropriate for the Board to order recognition on the basis of a card majority. We reject the Company’s argument on the facts.

The Trial Examiner found that the Company committed numerous unfair labor practices including, inter alia: threatening the employees with loss of existing benefits if the Union was chosen; promising new benefits for the purpose of discouraging union support; coercively suggesting the formation of an employee committee rather than joining the Teamsters; coercively interrogating individual employees concerning union membership; coercively soliciting employees to oppose union activity; instructing a supervisor to find a prev textual reason for discharging a union áctivist; and conditioning the hiring of new employees on their willingness to oppose the union. The Trial Examiner concluded:

“. . . [T]he possibility of erasing the coercive effects of these unfair labor practices through traditional remedies, even if present, is so slight as to.lead to the conclusion that, on balance, the employees’ majority designation of the Union as expressed in their authorization cards provides in this case a more reliable measure of the employees’ true desires than would be provided by an election.”

The fact that support for the Union continued after some of the unfair labor practices had begun does not necessarily lead to the conclusion that the election process has not been impeded. Cf. Arbie Mineral Feed Co. v. N. L. R. B., 8 Cir. 1971, 438 F.2d 940. Here, the Trial Examiner considered this factor, but he found that despite much continued union support, including a strike, he could not conclude that an election would be untainted. While it is true that cards should only be relied upon where a fair election is unlikely, see N. L. R. B. v. American Cable Systems, Inc., 5 Cir. 1970, 427 F.2d 446, and that a finding of tainted conditions by the Board will be carefully scrutinized, see N. L. R. B. v. General Stencils, 2 Cir. 1971, 438 F.2d 894, there is substantial evidence to support the Trial Examiner’s finding in this case that a fair election could not be held. The unfair labor practices committed by the Company were considerably more egregious than those in many other cases where bargaining orders have been enforced, e. g., N. L. R. B. v. WKRG-TV, 5 Cir. 1973, 470 F.2d 1302, and under the mandate of N. L. R. B. v. Gissel Packing Co., 1969, 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547, it is clear that the issuance of this bargaining order by the Board was well justified, both legally and factually.

The Company’s second contention is that the Board erred in not finding the Union’s card majority tainted by the pro-union conduct of a supervisor, Freeman Harper. See N. L. R. B. v. American Cable Systems’, Inc., 5 Cir. 1969, 414 F.2d 661, 664. Harper, who had recently been promoted from the status of a regular employee within the unit to the position of working foreman, attended the organizational meetings, was present when the Union was discussed favorably in small groups, and ultimately was one of seven employees (out of nine in the Company) who signed authorization cards. There is no evidence that Harper ever spoke out in support of the Union or actively encouraged anyone to sign a card. Harper was the last person to sign a card and his card was ultimately not counted because of his supervisory status. In N. L. R. B. v. WKRG-TV, swpra, we refused to invalidate a card majority where two supervisors had been present at union meetings, had spoken favorably of the union, and had signed authorization cards pri- or to several of the unit members doing so. In WKRG-TV we held that the degree of supervisory participation fell short of the “actual solicitation or active campaigning” that is necessary if the card majority is to be considered tainted by pro-union managerial intimidation. The supervisory participation by Harper, both subtle and overt, was less active than even the minimal amount that existed in WKRG-TV, and therefore, a fortiori, the participation by Harper did not taint the majority in this case.

Finding no error in the decision and order of the Board, the petition is granted and the order is enforced in its entirety.

Enforced.


author: PER CURIAM.

text:
    Alfred Owen HASTINGS, Petitioner-Appellant, v. Harold J. CARDWELL, Warden, Ohio Penitentiary, Respondent-Appellee.
    No. 72-2041.
    United States Court of Appeals, Sixth Circuit.
    Argued June 15, 1973.
    Decided July 17, 1973.

      Charles B. Ebel (Court Appointed), Cincinnati, Ohio, for petitioner-appellant.
    Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, for. respondent-appellee; William J. Brown, Atty. Gen., of Ohio, Columbus, Ohio, on brief.
    Before PHILLIPS, Chief Judge, EDWARDS, Circuit Judge, and NEESE, District Judge.

       Honorable C. G. Neese, United States District Judge for the Eastern District of Tennessee, sitting by designation.

   PER CURIAM.

Appellant appeals from the denial of a petition for writ of habeas corpus in the United States District Court for the Southern District of Ohio. Previously a state court jury had found appellant guilty of armed robbery and he had been sentenced to ten to 25 years.

The offense concerned took place on December 12, 1968, at a filling station in Lancaster, Ohio. A man, later identified by three witnesses as Hastings, robbed the service station attendant at gunpoint. Still later that evening, a man, also identified at trial as appellant, forced another man at gunpoint to drive him to Columbus, Ohio. Shortly after the unwilling ride-giver had been released, Pickway County police arrested Hastings for the kidnapping and a Lancaster police captain drove the filling station attendant to the Piekway County jail where he viewed the appellant through a one-way mirror while appellant was being fingerprinted.

At trial the filling station attendant testified positively as to his identification of appellant, testified that prior to and during the robbery he had had a half-hour to observe him in the lighted filling station, and that he had seen him at the Pickway County jail.

Before the District Court Judge and before us, appellant argues that the one-on-one identification procedure employed at the Pickway County jail was constitutionally impermissible and a violation of his rights to due process of law. He also argues that at the show-up he had been denied the right to counsel, although he had asked for it. In this regard appellant relies upon United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

This court has previously held that in circumstances where there was excellent opportunity for the victim to observe the offender and the identification was made promptly thereafter in the normal course of a police investigation, and under circumstances when a line-up would have been difficult or impossible, there is no per se violation of the due process clause of the Fourteenth Amendment in a one-on-one show-up. See United States ex rel. Penachio v. Kropp, 448 F.2d 110 (6th Cir. 1971), and Hancock v. Tollett, 447 F.2d 1323 (6th Cir. 1971).

If there was any doubt about the Supreme Court’s view on the identification problem, it was certainly laid to rest in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1973). There, dealing with facts which a panel of this court had found to represent a constitutionally impermissibly suggestive identification, where the one-on-one identification occurred six mohths after the crime and the crime had been committed in darkness, a majority of the Supreme Court held that under the “ ‘totality of the circumstances’ the identification [there involved] was reliable even though the confrontation procedure was suggestive.”

We note, of course, that the trial in the instant appeal took place after decision of the Wade, Gilbert, Stovall trilogy, whereas the Neil v. Biggers trial preceded it. The District Judge in this case, however, did not find that the show-up complained of was “so unnecessarily suggestive and conducive to irreparable identification that [appellant] was denied due process of law.” See Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). This was the standard reaffirmed in Neil v. Biggers, supra. As to this issue, we affirm the finding of the District Judge.

Even more conclusively a recent Supreme Court case serves to reject appellant’s claim that he was denied counsel at the show-up complained of, in violation of the Constitution. In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), in another 5-4 opinion, the Supreme Court concluded that the right to counsel “attaches only at or after the time that adversary judicial proceedings have been initiated against him.” Kirby v. Illinois, supra at 688, 92 S.Ct. at 1881. It is clear that the reference is to state action similar to complaint, indictment, or some other filing of the formal charge, since in Kirby, like here, the show-ups occurred immediately after arrest. As to this issue also, we affirm the District Court.

We find no merit to appellant’s contention that the person kidnapped for purposes of escape from the area should not have been allowed to testify and identify appellant.

The judgment of the District Court is affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Edward WILLIAMS, Defendant-Appellant.
    No. 73-1105.
    United States Court of Appeals, Sixth Circuit.
    Argued June 13, 1973.
    Decided July 18, 1973.

      Sanford Rosenthal, Detroit, Mich., on brief, for defendant-appellant.
    John P. Conley, Asst. U. S. Atty., Ralph B. Guy, Jr., U. S. Atty., Flint, Mich., on brief, for plaintiff-appellee.
    Before EDWARDS and PECK, Circuit Judges, and CECIL, Senior Circuit Judge.
   PER CURIAM.

Williams was convicted on four counts of possession of heroin, in violation of 21 U.S.C. § 174 (1970). The search warrant had previously been obtained on information given a federal agent by an informant who had previously proved to be reliable. The search disclosed four plastic bags of heroin containing something like 1600 grams in total. The four bags were found in a basement safe. Three of them were together in a brown paper bag and one was on a nearby shelf.

At trial the government introduced evidence that federal agents had seen Williams at the house in question, that the safe had been sold to Williams, that utilities were in Williams’ name, and that there was a palm print of Williams on the inside of the door of the safe and fingerprints on the bags in the safe, as well as at other places in the basement.

Williams was sentenced to eight years on each of the four counts after a jury verdict of guilty on each count, with the sentences to run concurrently.

Three issues are presented on appeal. The first is that the search warrant was invalid because the affidavit was vague and insufficient, particularly in that it did not allege the date of the informant’s information and, hence, the information might be stale. Inspection of the affidavit, however, clearly rebuts any inference of staleness of information or lack of specificity of the affidavit. As to this issue we affirm.

The second appellate issue is that only circumstantial evidence exists to prove Williams’ possession. Circumstantial evidence is, however, admissible to prove guilt. United States v. Scales, 464 F.2d 371 (6th Cir. 1972). In addition, we believe the facts recited above, if the jury chose to believe them, constituted much more than circumstantial evidence.

The third issue is a contention that under the factual circumstances outlined above, only one offense of possession of heroin should have been charged, and that the facts do not support four separate counts, and four separate sentences.

As to this issue the court is of the opinion that the appellant is correct. In this case we deal with one drug (heroin) found in one safe in appellant’s basement. Under these facts the added fact that the heroin was divided into four plastic bags does not seem to us to be controlling. Other courts have held that multiple counts were legally inappropriate under fact situations much more favorable to the government’s position than ours. Guffey v. United States, 310 F.2d 753 (10th Cir. 1970); Braden v. United States, 270 F. 441 (8th Cir. 1920); United States v. Martin, 302 F. Supp. 498 (W.D.Pa.1969).

The case relied upon principally by the government dealt with three different types of possession of three different quantities of drugs in three different places. See United States v. Privett, 443 F.2d 528 (9th Cir. 1971).

The judgment of conviction and the sentence on the first count is affirmed. The judgments of conviction and the sentences on the other three counts are vacated.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Herbert WEAVER, Defendant-Appellant.
    No. 72-3744
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 25, 1973.
    Edward F. McDowell, court-appointed, Starkville, Miss., for defendant-appellant.
    H. M. Ray, U. S. Atty., Falton O. Mason, Jr., Alfred E. Moreton, III, Asst. U. S. Attys., Oxford, Miss., for plaintiffappellee.
    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.

   PER CURIAM:

Weaver appeals from his conviction for the offenses charged in three counts of a four count indictment involving “moonshine” violations of Title 26 U.S. C. Sec. 5601, and a consequent confinement sentence of nine months as to Count One, to be followed by three years concurrent probation as to Counts Two and Four.

The first question raised on appeal is the propriety of the court’s jury charge of the permissible inference to be drawn from presence at an unlawful distillery in connection with the charge under Count Two of the indictment, carrying on the business of a distiller without having given bond, as prohibited by Title 5601(a)(4). The charge was couched in terms that were unexceptionable. United States v. Gainey, 1965, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658; United States v. Romano, 1965, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210.

The instruction carefully refrained from allowing an inference from presence at the still to be applied to the possession count under Title 26 U.S.C. See. 5601(a)(1), .in obedience to the holding of Romano that “absent some showing of the defendant’s function at the still”, the connection of presence “with possession is too tenuous to permit a reasonable inference of guilt” and that “presence alone unilluminated by other facts [is] insufficient proof of possession.” op. cit. 382 U.S. 136, 140, 86 S.Ct. 279, 282, 15 L.Ed.2d 210, 213

Additionally, the charge was not objected to, either' when the trial judge announced it would be given, or later, when opportunity to object was provided after it had been delivered. See Rule 30, Federal Rules Criminal Procedure.

The second question raised on appeal is whether the evidence was sufficient to sustain the verdict. We conclude that it was when viewed in the light most favorable to the government, Glasser v. United States, 1944, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. Despite opposing testimony from the appellant, his daughter, and a neighbor, centering around a claim that he was working in a nearby field on the date in question, and came to the still area accidently, the government testimony from law enforcement officers, federal and state, showed that Weaver appeared at the still about 11 A.M. of the date of arrest while the still was in operation, and was observed adjusting the flow of butane gas to the fire beneath the still pot, and later examining the whiskey as it ran from the still. Further, the defendant made a statement shortly after his arrest admitting ownership of the still, stating that he was putting about 20 pounds of sugar in each barrel of mash and that each time he ran the still he was receiving two to three gallons of whiskey from each fermenting barrel. After a full separate Jackson v. Denno type hearing, conducted by the trial judge before this statement was permitted to go to the jury, the judge held that it was made by Weaver freely, voluntarily and understandingly after full warnings as to his constitutional rights to counsel and to remain silent.

Error is not demonstrated in the proceedings below. The judgment appealed from is

Affirmed.

      . The convictions were under Count One, for possession of an unregistered distillery, 26 U.S.C. Sec. 5601(a)(1), Count Two for carrying on the business of a distiller without having given bond, 26 U.S.C. Sec. 5001(a) (4), and Count Four, wilful and knowing production of 6 gallons of distilled spirits, not being an authorized distiller. The jury acquitted Weaver as to Count Three, which charged him with making and fermenting 200 gallons of masli fit for distillation and production of distilled spirits, 26 U.S.C. Sec. 5601(a)(7).

      . As pointed out in the text, infra, the conviction under the possession count, Count One was supported by evidence in addition to testimony as to mere presence.

      . Jackson v. Denno, 1964, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.


author: MURRAH, Circuit Judge.

text:
    Ann BARELLI, Plaintiff-Appellant, v. Charles LEVIN, Defendant-Appellee.
    No. 72-1425.
    United States Court of Appeals, Seventh Circuit.
    Argued April 19, 1973.
    Decided July 9, 1973.

      Owen W. Crumpacker, Hammond, Ind., for plaintiff-appellant.
    Edmond J. Leeney, Hammond, Ind., for defendant-appellee.
    Before MURRAH, KILEY and SPRECHER, Circuit Judges.

       Alfred P. Murrah, of the Tenth Circuit, sitting by designation.

   MURRAH, Circuit Judge.

This is an appeal from an adverse judgment on a statutory triple damage claim for alleged fraud and deceit by an attorney in connection with a contingency fee contract in an Indiana divorce case. The operative facts are that Mrs. Barelli retained defendant Levin to prosecute a divorce action against her husband, and agreed to pay Levin 15% of the total amount of the recovery. Levin negotiated a settlement providing that each side would pay its own attorney fee. The court granted the uncontested divorce, and approved the negotiated settlement without specific reference to the fee arrangement.

The settlement provided for alimony payments to Mrs. Barelli, and upon entry of the decree Levin received a check in the amount of $50,000 payable to her. He obtained her endorsement and paid her $42,500, retaining the other 15% as provided in the contingency fee contract. Levin subsequently filed an attorney’s lien against Mrs. Barelli’s alimony judgment, so that each month Mrs. Barelli had to pay Levin 15% of. her alimony check before she could receive payment. When Levin had received a total of $8,242.51, Mrs. Barelli ceased paying, and commenced suit to void Levin’s lien. Levin counterclaimed, seeking the $20,857.50 then due under the contingency fee contract. The state circuit court sustained the validity of the contingency fee contract, and, accordingly, granted Levin judgment on his counterclaim for the $20,857.50.

The Indiana appellate court likened the contract to one to procure a divorce, contrary to public policy, and therefore void. The decision of the state circuit court was reversed only insofar as it granted judgment to Levin on his counterclaim. Barelli v. Levin, Ind.App., 247 N.E.2d 847 (1969). Mrs. Barelli thereupon filed this diversity suit, seeking treble damages under Burns Ind.Stats. § 4-7413, IC 1971, 34-1-60-9, which provides that “[a]n attorney who is guilty of deceit or collusion, or consents thereto, with intent to deceive a court or judge, or a party to an action or judicial proceeding, is punishable for a misdemeanor, and shall also forfeit to the party injured, treble damages, recoverable in a civil action.” Levin moved for summary judgment, supported by an affidavit to the effect that the contingency fee contract was obtained pursuant to the recommended fee schedules of the Hammond Bar Association, where Levin practices, and the Gary, East Chicago, and Indianapolis Bar Associations; that the Indiana Bar Association had similar recommended schedules in divorce actions, and that he was “. . . simply following a long-established procedure in obtaining a contingency fee contract.” These facts are not controverted. Mrs. Barelli countered with an affidavit reading on her complaint, to the effect that Levin perpetrated a fraud on her and upon the court when he induced her to enter into a contingency fee contract, since Indiana law provides that the husband shall pay for the divorce, and that he concealed the contingency fee arrangement from the court.

The Indiana statute, of course, measures the dimensions of Mrs. Barelli’s claim, and the Indiana federal trial judge, correctly we think, construed the Indiana statute to embrace intent to deceive as a “prerequisite to liability.” The trial judge reasoned that, although Mrs. Barelli pleaded the perpetration of a fraud, the only cognizable fraud alleged is the fact of the execution of the contingency fee contract, and the failure to disclose it to the court; and that the mere execution of the contract, in accordance with accepted bar association standards, and failure to disclose, was not susceptible to a finding of intent to deceive, within the meaning of the Indiana statute. We agree.

We do not understand Mrs. Barelli to contend that Levin deceitfully or fraudulently induced her to enter into the contract. Rather, as set forth in her brief, she “. . . charges defendant Levin with inducing her to enter into a contract which was illegal as contrary to public policy and, therefore, void.” She contends that this states a claim under the statute. From this it seems reasonable to suppose that if the contract was legal under the laws of Indiana her complaint would not state a statutory claim for deceit. The contract was legal when made (e/., e. g., State ex rel. Shannon v. Hendricks Circuit Court, 243 Ind. 134, 183 N.E.2d 331 (1962)), and a contract lawful when made does not become intentionally deceitful because it is subsequently declared void as against public policy (see, e. g., National Dairymen Ass’n v. Dean Milk Co., 183 F.2d 349 (7th Cir. 1950), and Dent v. Ferguson, 132 U.S. 50, 10 S.Ct. 13, 33 L.Ed. 242 (1889)).

The judgment is affirmed.


text:
    Clifford N. HERBERT, PlaintiffAppellee, v. MOBIL OIL CORPORATION, a corporation, Defendant-Appellant.
    No. 71-2602.
    United States Court of Appeals, Ninth Circuit.
    June 29, 1973.
    Rehearing Denied Aug. 27, 1973.

      Harry P. Thomson, Jr. (argued), John M. Kilroy, of Shughart, Thompson & Kilroy, Kansas City, Mo., Anderson, Symmes, Forbes, Peete & Brown, Billings, Mont., for defendant-appellant.
    Roland V. Colgrove (argued), Miles City, Mont., Alan F. Cain, of Hughes & Bennett, Helena, Mont., for plaintiff-appellee.
    Before BARNES and CHOY, Circuit Judges, and MURRAY, District Judge.

       Honorable W. D. Murray, Sr., United States District Judge of Montana, sitting by designation.

   PER CURIAM:

This is an appeal from a judgment entered against defendant Mobil Oil Corporation (herein Mobil), in the sum of $75,245.15, after a jury verdict in a personal injury diversity case, and the trial judge’s denial of a new trial. The accident occurred on March 2, 1968; the case was tried on June 1st, 8th, 9th, and 10th, 1971, in Billings, Montana.

The sole error urged is the refusal of the trial court to admit certain hospital records, both on the plaintiff’s direct examination (those of Billings Clinic and Forsythe Hospital); and (after the Billings records were admitted as part of defendant’s case (R.T. 444)) because of the court’s refusal to admit the remaining portion thereof (Forsythe records) during the defendant’s case.

The issue herein is clouded because of insistence by appellant’s counsel that appellee’s counsel “waived” both “foundation and identification” for these hospital records, relying on R.T. 347 for Ex. F. and F(l); and R.T. 446 and 354-7 for Ex.L. (Brief, p. 10) and (Brief, p. 8). It seems clear only that appellee’s counsel waived any authentication of the records from the particular hospitals named, but made and preserved his objection as to their relevancy (R.T. 341 to 347, 356), due to the fact that they antedated the accident by 6 and 10 years, respectively. This clearly was the belief of the trial judge :(C.T., p. 424; and p. 4, paragraph 2 of Order on Motion for New Trial).

From a perusal of the record as a whole, rather than through individual references to it, we agree that no objection to the relevancy of the records — either (a) as to the particular areas of plaintiff’s body injured in the accident as related to the location of alleged previous injuries, or (b) the lapse of time —was waived by appellee’s counsel; although the language he used was somewhat careless.

On the appellant’s case in chief, the defendant-appellant introduced into evidence Ex. F. (the Billings Clinic, 1962 records); but did not offer Ex. F(l), the x-rays attached thereto, nor was any attempt made to lay a foundation for the introduction of Ex. L. (Forsythe Hospital’s 1958 records).

The latter non-introduced records (Ex. L.) had a final diagnosis of “Possible Poliomyelitis Mild”; and treatment was largely hot packs, antibiotics, and pain killing drugs. The hospital records introduced (Ex. F) showed complaints of abdominal pain, and the diagnosis (written by Dr. Moh’s of the hospital) to Dr. Danner, appellee’s personal physician, concluded “low back strain”, a questionable disc at the L(umbar)-4. L-5 level, and “evidence of muscular spasm with straightening of the lumbar spine.”

Dr. Danner, the appellee’s doctor, testified the appellee was operated upon for a “regional ileitis” in 1962, and was treated with ultrasonic heat to an injured “upper back and neck” after a fall in 1963. In 1965, Dr. Danner gave plaintiff two physical examinations for truck driving, in July and November, 1965, and found him in good general health.

Without going into great detail, we note that the most relevant and significant testimony relating to any back injury of plaintiff, claimed by defendant to have existed prior to plaintiff’s fall on defendant’s property, was introduced into evidence. We note also that Dr. Carty, who examined plaintiff on behalf of the defendant a year after the accident, supported plaintiff’s claim of recent back injury. He certainly could have been recalled, had he been wanted. No offer of proof was made, either by expert testimony or otherwise, to connect up the non-introduced evidence and the plaintiff’s complaints at the time of trial, or to support a theory that the “possible poliomyelitis” did, or might, or could, continue or affect the plaintiff’s back, after 1962.

We think it might well be a close question in many personal injury suits whether any previous written record of injury may not be admissible to impeach a person claiming injury, provided he denied any previous injury, and the injuries were relevant to those claimed in the suit. The trial court must have discretion in determining the relevancy of a claimed previous injury to the injury claimed by the plaintiff in the law suit. One injury may be relevant if occurring within a year; one not. One might be relevant ten years earlier, dependant (at least in part) on the history during that interval; while another not. Evidence must always be relevant to be admissible. Winston v. United States, 342 F.2d 715 (9th Cir.1965). Cf. United States v. Baker, 419 F.2d 83, 84 (2nd Cir.1969) and Comm. Ins. Co. v. Orr, 379 F.2d 865, 874 (8th Cir.1967).

Again, the physical location of a claimed previous injury is material, and its relevance must be established. Usually this is done by the person making or supervising the making of the hospital records, or preferably, by the treating physician. Defendant had the opportunity as part of his defense to recall either or both of the two doctors, who first testified (Allard and Carty) to have them establish the relevancy of the earlier records. Although Dr. Allard was held available (R.T. 373-374), he was not recalled. Some of the x-ray records sought to be placed in evidence by defendant during the plaintiff’s case were not re-offered during defendant’s case. No adequate offer of proof was made during the defense with respect to records refused.

We find no clearly erroneous ruling by the trial judge, and if the exercise of his discretion might be judged as error, we find under the circumstances of this case, there was no prejudicial error in his refusal to permit Ex. L in evidence. Rule 61, Fed.R.Civ.Proc.

No other error being claimed, we affirm.


text:
    The RICHLAND TRUST COMPANY, Plaintiff-Appellant, v. FEDERAL INSURANCE COMPANY, Defendant-Appellee.
    No. 73-1021.
    United States Court of Appeals, Sixth Circuit.
    Argued June 7, 1973.
    Decided July 12, 1973.
    Rees Davis, Mansfield, Ohio, for plaintiff-appellant; Robert L. Ross, Ross, Davis & Baran, Mansfield, Ohio, on brief.
    John L. Miller, Columbus, Ohio, for defendant-appellee; J. Paul McNamara, McNamara & McNamara, Columbus, Ohio, on brief.
    Before CELEBREZZE and McCREE, Circuit Judges, and MOYNAHAN, District Judge.

       The Honorable Bernard T. Moynakan, Jr., Chief Judge, United States District Court for the Eastern District of Kentucky, sitting by designation.

   PER CURIAM.

Appellant brought this action to recover on a banker’s blanket bond it had secured from appellee insurance company to protect it from a loss by reason of having given value upon “any securities, documents or other written instruments which prove to have been counterfeited or forged as to the signature of any maker . . . . ” Appellant had extended several loans over a three-year period to a road contractor and the corporations he controlled, but the contractor ultimately became insolvent and the bank was forced to write off the loans. When the bank discovered that the loan applications had been based in part on false financial statements submitted to it by the contractor, it demanded payment from appellee under the above-quoted bond provision. Appellee, contending that false financial statements were not “counterfeited or forged as to the signature of any maker,” declined liability, and this lawsuit resulted.

The district court on November 7, 1972, filed a “Memorandum and Order” granting summary judgment for appellee on the ground that the law of Ohio, which governed the case, required that the word “counterfeit” in a banker’s blanket bond be construed to refer to an imitation of a genuine document that was intended to be taken for the original, and that the word “counterfeit” was modified by the phrase “as- to the signature of any maker.” See Union Banking Company v. United States Fidelity & Guaranty Company, 4 Ohio App.2d 397, 213 N.E.2d 191 (1965). The opinion of the district court concluded:

Granting that in this case the financial statements submitted to plaintiff contained false representations of fact, they were genuine as to form and not imitations or simulations of genuine documents. It follows, therefore, that under the law controlling upon this Court such documents cannot be held as counterfeit within the terms of the bond. Summary judgment will be entered in defendant’s favor dismissing plaintiff’s complaint.
IT IS SO ORDERED.

However, no separate judgment was thereafter entered by the clerk of the court as directed by the last sentence of the court’s opinion. Appellant filed its notice of appeal from the “final order of the District Court” of November 7, 1972, granting summary judgment for the defendant. The appeal was docketed in this court, briefs were filed, and oral argument was heard. Upon consideration, we have concluded that we must dismiss the appeal for lack of jurisdiction because the judgment was not set forth on a separate document.

Fed.R.Civ.P. 58 provides, in pertinent part:

Subject to the provisions of Rule 54(b): (1) upon a general verdict of a jury, or upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless th,e court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories, the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a).

The decision appealed from was a decision denying all relief within the meaning of clause (1) of the rule, and the requirement of the rule that the judgment be set forth on a separate document applies to clause (1) as well as to clause (2). United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (April 16, 1973). As the Court observed in Indrelunas, the present version of Rule 58 was adopted in 1963 to eliminate uncertainty “over what actions of the District Court would constitute an entry of judgment,” 411 U.S. at 220, 93 S.Ct. at 1564, an uncertainty often resulting from the preparation of an opinion or memorandum containing language apparently dispositive, the filing of which was viewed by some court clerks as the entry of final judgment. See United States v. F & M Schaefer Brewing Company, 356 U.S. 227, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958); Notes of Advisory Committee on Federal Rules of Civil Procedure, Fed.R.Civ.P. 58, 28 U.S.C. (1970). As the Advisory Committee observed, “[t]he amended rule eliminates these uncertainties by requiring that there be a judgment set out on a separate document — distinct from any opinion or memorandum — which provides the basis for the entry of judgment.” The 1963 amendment was a “ ‘mechanical change’ that must be 'mechanically applied in order to avoid new uncertainties as to the date on which a judgment is entered.” United States v. Indrelunas, supra, 411 U.S. at 222, 93 S.Ct. at 1565.

Our jurisdiction was invoked under 28 U.S.C. § 1291 (1970), which requires that a “final decision” have been rendered in the district court. Since no separate “judgment” has been entered in the district court in this case, and since “judgment,” as used in Rule 58 is the order from which an appeal lies, Fed.R. Civ.P. 54(a), no “final decision” under 28 U.S.C. § 1291 has been rendered. Accordingly, we lack jurisdiction to entertain this appeal.

Upon the entry of a separate judgment by the district court and the docketing of an appeal in this court, we will hear and determine the appeal on the briefs and argument heretofore submitted by parties, although the parties may elect to file supplemental memoranda or to re-argue the cause.

Appeal dismissed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Edward LEMONS, Defendant-Appellant.
    No. 29149.
    United States Court of Appeals, Fifth Circuit.
    June 19, 1973.
    Rehearing and Rehearing En Banc Denied July 30, 1973.
    Howard Moore, Jr., Atlanta, Ga., for defendant-appellant.
    John W. Stokes, Jr„ U. S. Atty., Jülian M. Longley, Jr., Stanley M. Baum, Asst. U. S. Attys., Atlanta, Ga., for plaintiffappellee.
    Before BELL, INGRAHAM and RONEY, Circuit Judges.
   PER CURIAM:

This appeal is from the conviction of appellant for an alleged violation of the Military Selective Service Act of 1967, 50 U.S.C.A. Appendix, § 462(a), in that appellant failed to submit to induction in the Armed Forces of the United States.

Appellant was registered with Selective Service Local Board No. 62, Atlanta, Fulton County, Georgia. His application for classification as a conscientious objector was denied and he was classified as I-A.

The application for conscientious objector status showed that appellant was opposed to participation in war on the grounds of religious belief and training. While in high school and shortly before he registered for the draft, appellant publicly accepted the religion of Islam, or so-called Black Muslims. His mother was also a member of that faith. He indicated that he would use force only in a manner consistent with his religious beliefs. He set forth a creed or official statement of his religious sect with respect to participation in war as follows:

“We believe that we who declared ourselves to be righteous Muslims, should not participate in wars which take the lives of humans. We do not believe that this nation should force us to take part in such wars, for we have nothing to gain from it unless America agrees to give us necessary territory wherein we may have something to fight for.”

The essence of appellant’s defense was that his I-A classification was invalid in that he was entitled to the conscientious objector classification.

The district court ruled that appellant was not opposed to all wars and that what appellant opposed was fighting in any war unless the United States first furnishes the Muslims some territory. It was thus found that there was a basis in fact for the I-A classification. We agree. Gillette v. United States, 1971, 401 U.S. 437, 91 S.Ct. 828, 28 L. Ed.2d 168; Carson v. United States, 5 Cir., 1969, 411 F.2d 631. Thus we find that the assignment of error contending to the contrary is without merit.

The other assignment of error rests on the contention that the under-representation of blacks on appellant’s draft board constituted a violation of due process of law. This contention is also without merit. See United States v. Gee, 5 Cir., 1973, 479 F.2d 642, this day rendered, and the decisions cited therein,

Affirmed,


text:
    UNITED STATES of America, Appellee, v. Harold MILES, Appellant.
    No. 911, Docket 73-1433.
    United States Court of Appeals, Second Circuit.
    Argued May 3, 1973.
    Decided June 7, 1973.

      Irving Anolik, New York City (Bobiek, Deutsch & Schlesser, New York City, on the brief), for appellant.
    Jeffrey Harris, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., John W. Nields, Asst. U. S. Atty., on the brief), for appellee.
    Before FRIENDLY and HAYS, Circuit Judges, and JAMESON, District Judge.

       Of the United States District Court for the District of Montana, sitting by designation.

   PER CURIAM:

This is an appeal from a judgment of conviction in the United States District Court for the Southern District of New York for distribution, and possession with intent to distribute, heroin in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A). Appellant contends that (1) the cross-examination of the main government witness was improperly restricted, and (2) the district court’s refusal to prohibit the government from calling one Joseph Sapia in rebuttal was improper. We reject both contentions and affirm the judgment of the district court.

In April, 1972 Detective William Dunn called defendant Miles and introduced himself as a friend of Joseph Sapia. Dunn told Miles that Sapia had told him [Dunn] to contact Miles if he needed drugs. Dunn testified that, as a result of this conversation, Miles and he met later in the same day and Miles gave Dunn eleven half bundles of heroin for which Dunn paid $170. According to Dunn’s testimony, a second drug transaction between Dunn and the defendant took place the following day.

In May, 1972, approximately a month after the transactions had taken place, detectives went to the defendant’s apartment to place him under arrest. Although the defendant was not at home the detectives were admitted to the apartment and waited there. In the afternoon, the defendant arrived, accompanied by Joseph Sapia, and was arrested. Sapia then asked the defendant “Do they have you right?” to which the defendant responded that they did. Sapia repeated this question and after receiving the same reply, asked the defendant “What did you do?” To this the defendant replied, “I sold to the man.”

Later at the office of the Assistant United States Attorney, the defendant stated that he had been dealing in narcotics with Sapia for a year and a half. He also indicated that he had carried on Sapia’s drug business while Sapia was away.

At trial the defendant denied that he had sold heroin to Detective Dunn. The defendant also denied making any statement to Sapia at the time of his arrest or later to the Assistant United States Attorney.

Appellant first contends that his cross-examination of Dunn was improperly restricted. Appellant claims that he should have been permitted to question Detective Dunn not only about certain charges that were then pending against Dunn but also about the underlying acts themselves. As brought out in the trial, Detective Dunn had been suspended from the New York City Police Department and had several charges pending against him, including associating with persons of ill repute, failure to make an arrest in a narcotics case, accepting bribes on at least three separate occasions, and receiving $3,500 to acquire a quantity of quinine. Although witnesses cannot generally be impeached in this circuit by evidence of prior misconduct — as opposed to evidence of prior convictions — , see, e. g., United States v. Provoo, 215 F.2d 531, 536 (2d Cir. 1954); United States v. Bowe, 360 F.2d 1, 15 (2d Cir.), cert. denied, 385 U.S. 961, 87 S.Ct. 401, 17 L.Ed. 306 (1966), the district court properly allowed the defendant to show the nature of the serious charges for which Dunn had been suspended, since Dunn might have been motivated to testify in a manner that would ingratiate himself with his superiors. Since the jury had a full and accurate picture of the witness’s misconduct, the district court did not abuse its discretion in refusing to permit defense counsel to develop the facts underlying the charges.

Appellant urges that he was also unduly restricted in cross-examination because he was permitted to bring out only five of the eight charges pending against Dunn. As the district court said, the defense established that Dunn was charged with “as much corruption as could possibly be relevant.”

Appellant claims that he did not know that Sapia would be called and was therefore prejudiced by the government calling him in rebuttal. This contention is without merit. The defendant, Sapia, and the defense counsel had lunch together on the day Sapia was subpoenaed but before he testified. It is impossible to believe that defendant and his counsel did not know that Sapia was going to testify.

Sapia figured prominently in the government’s direct case; he was not called, however, apparently on the belief of the government that the testimony of Dunn and the Assistant United States Attorney was sufficient. The defendant then took the stand, however, and denied the incriminating statement made by the defendant in the presence of Sapia at the time of the arrest. Consequently, the government had a clear interest in calling Sapia to rebut the testimony of the defendant denying this statement.

Affirmed.

      . Appellant does make a third contention —that the trial court erred in refusing to permit defense counsel to inquire as to the present employment of Sapia and the defendant. We do not see the relevance of present employment to the earlier criminal conduct of the defendant at issue in this case.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles Vernon MILES, Defendant-Appellant.
    No. 72-1748.
    United States Court of Appeals, Ninth Circuit.
    July 16, 1973.

      E. Richard Walker, Fed. Public Defender (argued), Sacramento, Cal., for defendant-appellant.
    Bruce Babcock, Jr., Asst. U. S. Atty. (argued), Dwayne Keyes, U. S. Atty., Sacramento, Cal., for plaintiff-appellee.
    Before BROWNING and GOODWIN, Circuit Judges, and WILLIAMS, District Judge.

       Honorable Spencer M. Williams, United States District Judge, Northern District of California, sitting by designation.

   OPINION

PER CURIAM:

This is an appeal of a conviction under 26 U.S.C. § 5861(d) for possession of an unregistered firearm. The sole issue here, as in the district court, is the lawfulness of the search of appellant’s suitcase that disclosed the illegal weapon.

Appellant was employed as a driver’s helper on a United Van Lines moving van. Barton Trevillian was the driver, and in charge. Trevillian drove the van to the Sierra Army Depot, Hurlong, California, to pick up a load of household goods. He drove to the customer’s residence, located in an unrestricted area of the Army base. Trevillian, appellant, and another helper began loading the van. Before the packing was completed, Trevillian drove the van to a truck scale to have it weighed, leaving appellant and the second helper at the residence, packing household goods. The truck scale was located some 20 blocks away within a restricted area of the base containing an ammunition dump. All commercial vehicles entering this area were searched by Army security guards pursuant to Army Regulations 210-10(1-15). A driver who did not wish his vehicle searched could leave; he was simply denied access to the restricted area. A security guard told Trevillian that the van would have to be searched before it could be taken into the restricted area. Trevillian responded, “Look it over all you want.” In the course of the inspection that followed, the guard opened the door to a small compartment on the passenger side of the van and saw a suitcase. He asked Trevillian to open the suitcase; Trevillian did so. The guard reached into the suitcase and discovered a sawed-off shotgun. Trevillian told the guard that the suitcase belonged to appellant. Trevillian testified this occurred before he opened the suitcase; the guard testified it occurred after the gun was discovered.

The administrative search involved here is indistinguishable from the inspection for weapons and explosives of the persons and carry-on baggage of passengers seeking to board commercial aircraft approved in United States v. Davis, 482 F.2d 893 (9th Cir. 1973), the inspection for plant pests and disease of air passengers and their luggage approved in United States v. Schafer, 461 F.2d 856 (9th Cir. 1972), and the inspection for weapons and explosives of briefcases and packages carried into federal buildings approved in Downing v. Kunzig, 454 F.2d 1230 (6th Cir. 1972).

It was held in each of these cases that the public interest in preventing the introduction of dangerous material into the particular area involved was sufficiently strohg to make it reasonable for the government (without a warrant or traditional probable cause) to condition access by any person seeking to enter the area upon submission by that person to an administrative inspection no more intrusive than necessary to meet the need to exclude the dangerous material from the restricted area. As we noted in United States v. Davis, since the need to exclude dangerous material could not justify the search of one who no longer sought to enter, the individual’s right to avoid the search by electing not to seek access to the restricted area must be recognized.

Obviously there was a strong public interest in excluding weapons or sabotage devices from the ammunition dump. It was entirely reasonable to condition entry of a commercial vehicle into this area upon submission of the vehicle and its contents to an inspection sufficient to assure that no such material was present. It is clear from the record that Trevillian was fully aware of this condition upon entry and willingly agreed to satisfy it.

Appellant’s sole contention is that the security guard was nonetheless barred from searching appellant’s suitcase because appellant had not consented to the search or authorized Trevillian to do so.

We reject the contention.

The security officer did not initiate the search of the van and its contents. He had no interest in doing so. His sole interest was in excluding uninspected vehicles from the ammunition dump. Trevillian acted entirely on his own initiative in submitting the van and its contents to inspection so that he might take them into the restricted area; he was not coerced, nor did he act as the instrument or agent of the security officer. Even in a criminal context, such private conduct is not imputed to the police. See Coolidge v. New Hampshire, 403 U.S. 443, 487-490, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Sartain v. United States, 303 F.2d 859, 862-863 (9th Cir. 1962). The security officer was not required to assume that Trevillian was acting improperly, or demand proof of his authority to submit the vehicle and its contents to reasonable inspection as a condition to entry.

Affirmed.


text:
    James R. GULLAGE, Appellant, v. STATE OF SOUTH CAROLINA, William D. Leeke, Director, S. C. Department of Corrections, Appellees.
    No. 72-1445.
    United States Court of Appeals, Fourth Circuit.
    Argued March 6, 1973.
    Decided June 25, 1973.

      Prof. William T. Toal, Greenville, S. C., (Court-appointed) for appellant.
    Robert M. Ariail, Asst. Atty. Gen. of S. C., (Daniel R. McLeod, Atty. Gen. of S. C., Emmet H. Clair, Asst. Atty. Gen. of S. C., on brief) for appellees.
    Before WINTER, RUSSELL and WIDENER, Circuit Judges.
   PER CURIAM:

In this appeal from denial of a writ of habeas corpus, petitioner contends that illegally seized evidence, obtained as a result of a warrantless search, was used to convict him and to induce his confession admitted against him at trial. He also contends that his confession was otherwise unlawfully coerced.

We see no merit in the claim of coercion in the manner in which the confession was obtained. The principal ground for asserting the invalidity of the seizure is the claim that petitioner’s wife may not be said to have consented to the search when she was not advised, nor did she know, that she had a right to withhold her consent; and the validity of the confession, under petitioner’s first theory, depends upon whether it was the product of tainted evidence.

After argument of the ease, we stayed decision pending the Supreme Court’s decision in Schneckloth v. Bustamonte. That case was decided May 29, 1973. 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. It held that the “voluntariness” of consent to a search depends upon the totality of the surrounding circumstances; and while lack of knowledge of the right to withhold consent is a factor to be considered, proof of such knowledge is not required to render consent voluntary. Since the surrounding circumstances in the instant case all point to petitioner’s wife’s consent to the search as a voluntary act, save only the claim that she did not know that she could withhold her consent, we conclude that the search and seizure were valid. It follows that we reject petitioner’s first two contentions.

Affirmed.


text:
    William J. DRENNING et al., v. John H. WILLIAMS, Appellee, v. Lawrence F. ANBRESEN, III, Third-Party Defendant, Appellant.
    No. 72-1813.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) May 14, 1973.
    Decided June 18, 1973.

      Joseph F. Ricchiuti, Liebert, Short, Fitzpatrick & Lavin, Philadelphia, Pa., for appellants.
    Steven R. Waxman, Bolger & Picker, Philadelphia, Pa., for appellee.
    Before VAN DUSEN, GIBBONS and ROSENN, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM.

This appeal challenges the July 5, 1972, order entering judgment n. o. v. in favor of the defendant truck driver in his claim for contribution from the third-party defendant automobile driver. The plaintiffs, passengers in the automobile, were injured when it collided with the defendant’s disabled flatbed trailer which was blocking the westbound lane of the highway. According to the automobile driver’s own testimony (95a-100a, 120a-123a), the truck was some 70-80 feet beyond a dip in the road; he first saw the truck in his headlights immediately upon coming out of the dip in the road (over the crest of the hill forming the western end of such dip), when he was about 60-65 feet from it; and because of his speed, about 50 to 55 miles per hour, he was unable to stop in time. As the district court opinion makes clear, driving at this speed under these circumstances violated Pa.Stat.Ann. tit. 75, § 1002(a), and, under the admitted facts, was negligence as a matter of law. See Drenning v. Williams, 344 F.Supp. 1365 (E.D.Pa. 1972), and cases cited therein.

The judgment of the district court will be affirmed.

      . The third-party defendant conceded that he saw the trailer as soon as he came over the crest of the dip without interference from darkness or any other factor.

      . 75 P.S. § 1002(a) provides that “no person shall drive any vehicle, upon a highway . . . at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead.”

      . The discussion of the facts and cases in this district court opinion makes it unnecessary for us to elaborate upon them here.


text:
    Pauline NENOFF, Plaintiff-Appellant, v. George M. THOMPSON, Defendant-Appellee.
    No. 73-1209.
    United States Court of Appeals, Sixth Circuit.
    Argued June 6, 1973.
    Decided July 13, 1973.

      Kelsey D. Bartlett, Toledo, Ohio, on brief for plaintiff-appellant.
    James R. Jeffery, Toledo, Ohio, of counsel. Spengler, Nathanson, Heyman, McCarthy & Durfee, Toledo, Ohio, on brief for defendant-appellee.
    Before EDWARDS and MILLER, Circuit Judges, and MOYNAHAN, District Judge.

       Honorable Bernard T. Moynahan, Jr., Chief Judge, U. S. District Court for the Eastern District of Kentucky, sitting by designation.

   PER CURIAM.

This is an action brought by appellant, the widow of a man who was killed while a passenger in defendant’s car when it went out of control at an exit ramp of an expressway in Toledo, Ohio. The administratrix of the estate of the deceased had previously brought a wrongful death action in an Ohio state court in which a jury had found no cause for action. Subsequently appellant filed this action for loss of consortium in the federal court before a District Judge in the United States District Court for the Northern District of Ohio, Western Division, asserting jurisdiction on grounds of diversity of citizenship.

The District Judge determined that under Ohio law her damages were limited to the two hours in between the happening of the accident and her husband’s death. He thereupon dismissed the cause of action for lack of the jurisdictional amount of over $10,000.

DeWitt v. Machine Co., 25 Ohio St.2d 40, 266 N.E.2d 563 (1971), says (citing Shaweker v. Spinell, 125 Ohio St. 423, 181 N.E. 896 (1932)):

A spouse may recover only for loss of consortium between the time of injury and death. . . . DeWitt v. Machine Co., supra, 25 Ohio St.2d at 41, 266 N.E.2d at 564.

Our examination of this record shows to a legal certainty that the claims are for less than the jurisdictional amount. Gill v. Allstate Insurance Co., 458 F.2d 577 (6th Cir. 1972).

The judgment of the District Court is affirmed.


text:
    UNITED STATES of America, Appellee, v. Albert Ray KITCHEN, Appellant.
    No. 73-1094.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 12, 1973.
    Decided June 27, 1973.

      David P. Murrin, Minneapolis, Minn., for appellant.
    J. Earl Cudd, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before GIBSON, LAY and ROSS, Circuit Judges.
   ORDER

This cause having been briefed and argued and submitted to this court on its merits on June 12, 1973, is hereby remanded to the trial court for an evidentiary hearing consistent with United States v. Pollard, 8 Cir., 479 F.2d 310, order filed May 18, 1973.

The record demonstrates that the government at a pretrial proceeding assured both the court and defendant that the informant, Sammy Floyd, would be available to testify at trial. The record shows that Floyd did not appear at trial and the trial court excused the government from producing informant on the government’s statement that Floyd’s whereabouts were unknown at the time of trial. The record demonstrates that Floyd may have possessed material knowledge relating to the defendant’s participation in the charge of his distributing cocaine on September 24, 1971.

Therefore in accordance with Pollard, we remand the cause

“ ‘to the trial court for the [limited] purpose of holding a further hearing at which the government shall be given the opportunity of proving if such be the case, that it was genuinely unable through reasonable efforts to produce [Floyd] and also, if such be the case, that the government did not take steps to see to it that [Floyd] would be or become unavailable as a witness. The burden of proving these things should be on the government.’ ”

• The court upon remand may hear such evidence as it deems necessary and proper, and then shall certify its findings to this court.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Lawrence ATKINS, Defendant-Appellant.
    No. 73-1561.
    United States Court of Appeals, Ninth Circuit.
    July 9, 1973.

      Richard H. Muller, Bouneff, Muller, Marshall & Hawkes, Portland, Or., for defendant-appellant.
    Sidney I. Lizak, U. S. Atty., Charles H. Turner, Asst. U. S. Atty., Portland, Or., for plaintiff-appellee.
    Before CHAMBERS, WRIGHT and KILKENNY, Circuit Judges.
   PER CURIAM:

The judgment of conviction is affirmed.

Defendant’s first point is that the court committed plain error in a supplemental instruction given in response to a request by the jury for classification of one of the issues in the case. No objection to the instruction was made although the court specifically queried the parties regarding its propriety. We find that no plain error was committed.

Defendant’s second point is that the sentencing court erred in considering a murder conviction of defendant’s which had been reversed on appeal. See State v. Atkins, 251 Or. 485, 446 P.2d 660 (1968). This contention also lacks merit. A sentencing court may consider evidence of other crimes committed by the defendant even though he was never brought to trial, Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); United States v. Doyle, 348 F.2d 715 (2d Cir. 1965), or was brought to trial and acquitted, United States v. Sweig, 454 F.2d 181 (2d Cir. 1972), unless the evidence was obtained in violation of a constitutional right. Verdugo v. United States, 402 F.2d 599, 610-612 (9th Cir. 1968); contra United States v. Schipani, 435 F.2d 26 (2d Cir. 1970).

While a sentence will be set aside if the sentencing court gives explicit consideration to one or more convictions obtained in violation of defendant’s constitutional rights without also considering the fact and effect of the unconstitutionality, United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the mere fact that an invalid conviction was obtained does not immunize the facts underlying this conviction from consideration by the sentencing judge. It appears on the face of the record in the present case that the sentencing judge was aware that defendant’s murder conviction had been reversed. He was, therefore, entitled to consider the facts underlying the conviction and accord them whatever weight they deserved.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Mary Grace WESTLAKE, Defendant-Appellant.
    No. 73-1402
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 20, 1973.
    Milton E. Grusmark, Miami Beach, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Lawrence B. Craig, III, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

Appellant was convicted by a jury of importing cocaine into the United States, in violation of 21 U.S.C. § 952 (a). On appeal, she raises two points, both of which we consider to be without merit.

First, she argues that the implementation of the jury selection plan for the Southern District of Florida unconstitutionally excludes Cuban immigrants and young adults from jury service. This very contention has been raised and rejected on many occasions in the past. See, e. g., United States v. Gooding, 5th Cir. 1973, 473 F.2d 425; United States v. Blair, 5th Cir. 1972, 470 F.2d 331; United States v. Pentado, 5th Cir. 1972, 463 F.2d 355. Those decisions are dis-positive of appellant’s first contention.

Secondly, appellant argues that 21 U.S.C. § 811, which empowers the Attorney General to modify the “schedules” of controlled substances and narcotics set out in 21 U.S.C. § 812(c), represents an impermissible delegation of legislative power. We decline to reach this point at the present time. Congress initially classified cocaine as a Schedule II Controlled Substance, and the Attorney General has neither rescheduled nor deleted cocaine from the list of controlled substances since the effective date of the statute. Appellant therefore has not been affected by whatever delegation of authority may be embodied in the statute.

The judgment below is accordingly affirmed.


text:
    Whitted MOSLEY, Plaintiff-Appellant, v. OGDEN MARINE, INC., et al., Defendants-Appellees.
    No. 73-1364
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 6, 1973.
    Richard Bounds, Mobile, Ala., Edward P. Turner, Jr., Chatom, Ala., for plaintiff-appellant.
    Alex T. Howard, Jr., Mobile, Ala. (Ogden), for defendants-appellees.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

Appellant Mosley, a shore-based worker employed by Bagwell-Neal, Inc., to perform spot painting work on the tanks of the SS OGDEN WILLAMETTE, sustained injuries in a fall while he was working aboard the vessel. He sued appellees, the vessel’s manager and owner, respectively, asserting two distinct causes of action: first, negligence, and second, unseaworthiness. Appellees moved for summary judgment, basing their motion upon several defensive theories contained in their pleadings. Without articulating reasons for his action, the trial judge granted appellees’ motion for summary judgment as to both of appellant’s causes of action, and ordered the complaint dismissed.

We have recently oberved that, although trial judges are not required to enter findings of fact and conclusions of law when granting motions for summary judgment, such findings and conclusions are permissible and are often quite helpful to appellate review. Steed v. Central of Georgia Railway Co., 5th Cir. 1973, 477 F.2d 1303. This is especially true when, as here, an appellate court cannot ascertain which of several theories formed the basis for the entry of summary judgment. Accordingly, we vacate the judgment below and remand the case to the trial court for entry of reasons in support of the granting of appellees’ motion for summary judgment.

Vacated and remanded.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Bobby Joe MILLER, Defendant-Appellant.
    No. 72-2827
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 20, 1973.
    J. Stacey Freeman, Shreveport, La., for defendant-appellant.
    Donald E. Walter, U. S. Atty., R. Perry Pringle, Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

The sole point on this appeal is whether the defendant was entitled to acquittal because the Government failed to produce expert testimony on the elements of obscenity. Affirmed. United States v. Groner, 479 F.2d 577 (5th Cir. 1973) [En Banc].


text:
    Bernard CHANON, Administrator and Personal Representative of the Estates of William Lewis Carter and Marvin Leroy Hull, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 73-1505
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 2, 1973.

      Sidney Ravkind, Houston, Tex., for plaintiff-appellant.
    Jack Shepherd, Chief, Asst. U. S. Atty., Anthony J. P. Farris, U. S. Atty., Charles B. Wolfe, Asst. U. S. Atty., Houston, Tex., Alfred H. O. Boudreau, Jr., Admiralty & Shipping Dept., Dept. of Justice, Washington, D. C., Kathryn H. Baldwin, Karen K. Siegel, Dept. of Justice, Washington, D. C., for defendant-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

This suit was brought by the administrator of the estates of two men who died when their shrimp vessel was lost in a fierce storm which struck the Galveston area in 1969. The cause of action was predicated on the failure of the United States Government, through its various agencies, to disseminate, for broadcast, weather information.

Although the Government asserts that liability to individuals is precluded because the activity of the weather service in forecasting and disseminating weather information involves a duty running only to the public generally, and alternatively because the claims are based on negligent misrepresentation expressly barred by the Federal Tort Claims Act, 28 U.S.C.A. § 2680(h), we find it unnecessary to address those legal defenses.

The judgment for the Government must be affirmed because the District Court was not clearly erroneous in finding as a matter of fact that no Government employee was guilty of any negligent act or omission, and that the activity of the Government did not constitute a proximate cause of the accident.

Affirmed.