author: GOLDBERG, Circuit Judge:

text:
    John J. TERRELL, Plaintiff-Appellee, v. HOUSEHOLD GOODS CARRIERS’ BUREAU et al., Defendants-Appellants.
    No. 73-2090.
    United States Court of Appeals, Fifth Circuit.
    May 15, 1974.
    Rehearing and Rehearing Eln Banc Denied June 18, 1974.

      Melville C. Williams, Chicago, 111., Jay
    H. Brown, Will G. Barber, Austin, Tex., for defendants-appellants.
    Jack N. Price, Longview, Tex., Fred B. Werkenthin, Austin, Tex., for plaintiff-appellee.
    Before GEWIN, GOLDBERG and IN-GRAHAM, Circuit Judges.
   GOLDBERG, Circuit Judge:

This odyssey began a decade ago when appellee John J. Terrell filed a private antitrust-suit against appellant Household Goods Carriers’ Bureau and ten of its individual carrier members charging violations of sections one and two of the Sherman Act and seeking treble damages under section four of the Clayton Act. Terrell complained that a conspiracy to restrain and monopolize commerce between the defendants and Rand Mc-Nally and Company, not named as a party, had destroyed his business of computing and selling national mileage guides. Their arduous and acrimonious journey has carried the adversaries through one libel and two antitrust trials, and now for the second time to this Court. Here, hopefully, their peregrinations will end.

Most of the details of this voyage have been previously logged, and need not be repeated here. The libel trial ended inconclusively with a hung jury and a settlement. The first antitrust trial resulted in a $375,000 jury verdict against both the Bureau and the individual carriers; the trial court entered judgment on the verdict against the Bureau and judgment notwithstanding the verdict in favor of the individual carriers. On appeal, a majority of the original panel vacated the judgment against the Bureau and remanded the ease for a new trial. Upon rehearing en banc, a majority of this court affirmed the trial court’s judgment against the Bureau on the issue of liability, but reversed for a new trial on the issue of damages. The subsequent trial on damages resulted in a jury verdict against the Bureau for $300,000, which the district court trebled. The Bureau appeals, and we affirm.

I.

Given the length and bitterness of this controversy over the manufacture and sale of national mileage guides, it is certainly not surprising that the parties would disagree on nearly everything about it. For purposes of this appeal, however, they disagree most significantly, and most vehemently, over how to read the road map provided by this Court’s previous en bane decision.

Appellant Bureau maintains that the en banc Court affirmed the initial jury determination that the Bureau had violated the Sherman Act, but commanded retrial on the twin issues of causation and the amount of damage's. At the subsequent trial, appellant argues, the evidence on the issue of causation was insufficient to support the jury’s verdict in favor of the plaintiff, and therefore the trial court erred in refusing the Bureau’s motion for directed verdict and judgment notwithstanding the verdict.

We do not reach appellant’s sufficiency of the evidence argument, for we agree with appellee that the en banc decision establishing liability finally adjudicated the issue of causation, making any subsequent jury verdict on the point irrelevant. Under well-settled principles of law the decision of this court sitting en banc at an earlier stage of this same case represents the law of the ease. See Hodgson v. Brookhaven General Hospital, 5 Cir. 1972, 470 F.2d 729; Gulf Coast B. & S. Co. v. IBEW, Local 480, 5 Cir. 1972, 460 F.2d 105; Love v. Pullman Co., 10 Cir. 1970, 430 F.2d 49; Rachal v. Allen, 5 Cir. 1967, 376 F.2d 999; Prudential Insurance Co. v. Morrow, 5 Cir. 1966, 368 F.2d 813; Lincoln National Life Insurance Co. v. Roosth, 5 Cir. 1962, 306 F.2d 110; 1B Moore’s Federal Practice j[ 0.404 et seq (2d ed. 1974); 9 Moore’s Federal Practice ff 110.25 [2] at 274-75 (2d ed. 1973). As we have noted before,

[t]he “law of the case” rule is based on the salutary and sound public policy that litigation should come to an end. It is predicated on the premise that ... it would be impossible for an appellate court “to perform its duties satisfactorily and efficiently” and expeditiously “if a question, once ■ considered and decided by it were to be litigated anew in the same case upon any and every, subsequent appeal” thereof.

White v. Murtha, 5 Cir. 1967, 377 F.2d 428, 431.

The reach of the law of the case doctrine is not limitless. The better view, for example, is that even when applicable, the doctrine does not carry the same consequences as the rule of res judicata. See 1B Moore’s Federal Practice ¶ 0.404[1] at 405-06 (2d ed. 1974). Thus the law of the case rule applies only to issues that were decided, and “does not include determination of all questions which were within the issues of the ease and which, therefore, might have been decided.” Id. at ¶ 0.404[10], p. 572, quoting from Connett v. City of Jerseyville, 7 Cir. 1940, 110 F.2d 1015, 1028. Nevertheless, the doctrine does mean that the duty of a lower court to follow what has been decided at an earlier stage of the case comprehends things decided by necessary implication as well as those decided explicitly. Id. at 573.

We have also made it clear that the doctrine is not an inexorable command that rigidly binds the court to its former decisions, but rather is an expression of good sense and wise judicial practice. White v. Murtha, supra, 377 F.2d at 431; Poster Exchange, Inc. v. National Screen Service Corp., 5 Cir. 1966, 862 F.2d 571, 574. See 1B Moore, supra, at 573-74. Some circumstances may warrant a re-examination of the earlier decision. For example, the evidence at a subsequent trial may be substantially different, of the controlling authority, in this instance the en banc court or the Supreme Court, may have made a contrary decision on the applicable law. White v. Murtha, supra, 377 F.2d at 432. Nevertheless, the general rule that an appellate court’s decision of issues must be followed in all subsequent trial or intermediate appellate proceedings in the same case is waived for only the most cogent of reasons and to avoid manifest injustice. Id.; Poster Exchange, supra; 1B Moore, supra, at 573-74; 9 Moore, supra, at 275.

In order to recover treble damages under section four of the Clayton Act, Terrell was required to prove a violation of the antitrust laws by the defendants, an injury to his business resulting from the defendants’ wrongful actions, and some indication of the amount of the damage done. Both the fact of damage, or causation, and the amount of damage are questions of sufficiency of the evidence, though the certainty of proof required on each issue differs. As the Supreme Court said in Story Parchment Co. v. Paterson Parchment Paper Co., 1931, 282 U.S. 555, 562, 51 S.Ct. 248, 250, 75 L.Ed. 544, 548,

[Tjhere is a clear distinction between the measure of proof necessary to establish the fact that petitioner had sustained some damage and the measure of proof necessary to enable the jury to fix the amount. The rule which precludes recovery of uncertain damages applies to such as are not the certain result of the wrong, not to those damages which are definitely attributable to the wrong and only uncertain in respect of their amount.

The distinction between the fact of damage and the amount of damage is especially important in a case such as the one sub judice in which the injury to plaintiff may have been attributable to several factors, not all of which can be the basis for liability on the part of the defendant. In such a case the plaintiff need not prove that the defendant’s wrongful actions were the sole proximate cause of the injuries suffered. He must show only, as a matter of fact and with a fair degree of certainty, that defendant’s illegal conduct materially contributed to the injury. Once the important causal link between the actions of the defendant and the injury to the plaintiff has been established, the plaintiff may enter the more uncertain realm of evaluating the portion of the injury that may be attributed to the defendant’s wrongful conduct.

The general verdict of the jury in favor of Terrell and the judgment thereon in the first antitrust trial had the effect of findings in favor of Terrell on the three important elements of his case, violation, causation, and amount of damages. Story Parchment Co. v. Paterson Parchment Paper Co., 1931, 282 U.S. 555, 560, 51 S.Ct. 248, 249, 75 L.Ed. 544, 547. On rehearing the en banc Court did not disturb the jury’s conclusion that the Bureau had violated the antitrust laws. Nor did it question the implicit jury finding that this wrongful conduct was a substantial, material contributing cause of harm to Terrell’s business. Indeed, the en banc Court cited with approval from Judge Coleman’s dissent from the decision of the original panel:

Terrell showed the existence of the monopoly, the vigorous efforts of Household and Rand McNally to preserve that monopoly, that Terrell’s directory, so often on the verge of success, was destroyed by his competitors and the monopoly remains intact to the disadvantage of the shipping public.

Household Goods Carriers’ Bureau v. Terrell, 5 Cir. 1971, 452 F.2d 152, 160. The Court did, however, express its concern that in calculating the amount of Terrell’s damages the jury might have been swayed by improper considerations and might have included elements of injury for which Terrell could not recover from the Bureau.

At the first antitrust trial Terrell attempted to show that certain wrongful actions of the Bureau and the co-conspirators had destroyed his business by preventing him from securing important government business and by causing Rocky Ford Van Lines, a former Bureau affiliate carrier who had switched to Terrell’s guide, and the Oil Field Haulers Association (OHA), Terrell’s first customer, to return to Bureau guides. A portion of Terrell’s ease rested on a letter, the subject of the libel suit, in which the Bureau’s executive secretary Wyche questioned the reliability and authenticity of Terrell’s guides, intimated that use of the new guides might adversely affect the moving industry, and threatened to file a complaint and request for investigation with the I.C.C.

The trial court and the en banc Court agreed that the res judicata effect of the libel settlement barred Terrell from recovering any damages for the libelous nature of the Wyche letter. They also agreed that the No err-Pennington doctrine precluded recovery of damages for business lost as a result of attempts to influence the government officials in the Finance Center of the Department of Defense and the Defense Traffic Management Service. The en banc Court concluded, however, that the trial court’s prophylactic measures, including a pretrial order and jury instructions, were inadequate “to alleviate [the] very real danger that the jury would apply an improper measure of damages.” 452_ F. 2d at 157-158 (emphasis added). After examining the size of the jury verdict and the other evidence on amount of damages, the Court was unable to overcome its feeling that the jury very possibly assessed damages for libel and the loss of the government business. In short, the Court was concerned, not with the fact of damage, but with the extent of damages where there were several contributing factors.

In a private antitrust suit there is no neat dividing line between the issues of liability and damages. In the words of Judge Aldrich, “[o]ne cannot think of private liability for violation of the antitrust laws except in terms of impact and damage.” Haverhill Gazette Co. v. Union Leader Corp., 1 Cir. 1964, 333 F.2d 798, 802, cert, denied, 379 U.S. 931, 85 L.Ed. 329, 13 L.Ed.2d 343. A “finding of damage” would “legally . . . seem a necessary prerequisite” to a “decree of liability . . . labelled final. .” Id. at 803. The en banc decision affirming the original trial court on the issue of liability necessarily encompassed the findings on the legal violation and causation or the fact of damage.

The en banc Court did not, of course, foreclose the possibility that Terrell might be unable to show with the requisite particularity and certainty the amount of damages flowing from the defendant’s wrongful conduct. This is a problem inherent in any case in which several factors besides the defendant’s wrongful actions may have contributed to the plaintiff’s injury. Even if the overall effect be susceptible of reasonably certain measure, it may simply be impossible to identify the quantum attributable to each of the separate strands of cause. This is not to say that the plaintiff may be relieved of his burden of proving the amount of damages, but only that his burden should not be increased by a load he has already successfully shouldered.

Our conclusion is that the en banc decision affirming the finding of liability was, and is, the law of the case on those issues. Appellant may not now complain of the insufficiency of the evidence on the issue of causation.

II.

The scope of our inquiry on this appeal thus narrowed, we turn to the second phase of appellant’s attack on the judgment below. Assuming arguendo that causation was proved, Bureau contends, the trial court erred in admitting the testimony and exhibits by which plaintiff sought to establish lost profits as a measure of damages because the expert evidence was based on assumed facts shown to be untrue and hence was too speculative. Terrell denies that the expert testimony was based on facts shown to be untrue, and argues that the court acted quite properly in admitting the challenged evidence.

The core of Terrell’s evidence on the amount of his lost profits came in the testimony of Walter Bowles, an expert in the marketing and public opinion research business. Using all the evidence available from the first trial as well as his own opinion surveys and a wealth of other data relating to the sale and distribution of mileage guides, Bowles made a market study estimating the size of the total national mileage guide market. He also developed a series of conclusions on which to rely in estimating Terrell’s ability to penetrate the market, and calculated that between 1962 and 1975 Terrell could reasonably have expected to sell 115,000 copies of his guide if he had remained in business. Terrell then presented the testimony of a certified public accountant who had prepared a net profit analysis based on actual known expense figures and the actual and projected sales figures adduced by Bowles.

Obviously Terrell’s task of proving sales that he never made as a means of calculating his damages was a difficult one. Yet as we have already noted, the plaintiff’s burden of establishing the amount of damages is less severe than his burden of proving the fact of damage. Very often the nature of the wrong makes ascertainment of the damages difficult; but the Supreme Court has emphasized that “[i]n such [a] case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show[s] the extent of the damages as a matter of just and reasonable inference, although the result be only approximate.” Story Parchment Co. v. Paterson Parchment Paper Co., 1931, 282 U.S. 555, 563, 51 S.Ct. 248, 250, 75 L.Ed. 544, 548. “[T]he jury may make a just and reasonable estimate of the damage based on relevant data .... In such circumstances ‘juries are allowed to act on probable and inferential as well as [upon] direct and positive proof.’ ” Big-elow v. RKO Radio Pictures, Inc., 1946, 327 U.S. 251, 264, 66 S.Ct. 574, 580, 90 L.Ed. 652, 660.

This indirect type of proof may include estimates based on assumptions, at least so long as the assumptions rest on adequate bases. Hobart Brothers Co. v. Malcolm T. Gilliland, Inc., 5 Cir. 1973, 471 F.2d 894, 902; Locklin v. Day-Glo Color Corp., 7 Cir. 1970, 429 F.2d 873, 879, cert, denied, 400 U.S. 1020, 91 S.Ct. 584, 27 L.Ed.2d 632; Herman Schwabe Inc. v. United States Shoe Machinery Corp., 2 Cir. 1962, 297 F.2d 906, cert, denied, 369 U.S. 865, 82 S.Ct. 1031, 8 L. Ed.2d 85 (1962). Appellant complains that Bowles’ expert testimony violated this stricture in several respects. First, Bowles incorrectly assumed that Rocky Ford Van Lines had been unable to use Terrell’s guide competitively, and that had it been able to do so other household carriers would have bought Terrell’s guide in order to compete effectively. Bowles was also ignorant of Terrell’s lack of success in selling his guide to other rate bureaus, and therefore erroneously assumed these bureaus were Terrell’s prime market. Finally, Bowles mistakenly assumed that Terrell could market at least twice as many guides every other year as the quantity revealed by the evidence.

Appellant has made a spirited attack on Bowles’ testimony, and we have read the arguments with great care. Nevertheless, our reading of appellee’s responses and our study of the record convinces us that the Bureau has not identified “facts upon which Bowles based his testimony [that] have been proved by undisputed evidence to be untrue.” Brief for Appellant at 35. Rather, appellant has demonstrated that Bowles rested his estimates in part on facts that, though in dispute, could from the evidence be found in favor of Terrell and would support the assumptions on which Bowles’ opinion evidence was based. See Autowest, Inc. v. Peugeot, Inc., 2 Cir. 1970, 434 F.2d 556, 566.

The factual' disputes were squarely presented to the jury trying the case. Counsel for the Bureau cross-examined Bowles vigorously, probing and prying at the bases for his conclusions and estimates. Appellant had ample opportunity to discredit Bowles and show the fallacies in his reasoning or testimony. The jury as fact-finder had the task and responsibility of judging the credibility of the witness, resolving the conflicting evidence, and assessing the weight of the expert testimony. Hobart Brothers Co. v. Malcolm T. Gilliland, Inc., 5 Cir. 1973, 471 F.2d 894, 903; Autowest, Inc. v. Peugeot, Inc., 2 Cir. 1970, 434 F.2d 556, 565. The trial judge instructed the jury,

You should consider such expert opinion and should weigh the reasons, if any, given for it. You are not bound, however, by such an opinion. Give it the weight to which you deem it entitled, whether that be great or sleight, and you may reject it, if in your judgment the reasons given for it are unsound.

Under these circumstances we conclude that Bowles’ expert testimony and the exhibits reflecting it were not impermissibly suggestive and were properly admitted by the trial court. Appellant has pointed to no persuasive reason for upsetting the jury’s action, and we cannot find that the findings relating to damages are “beyond the pale of sane judgment.” Hobart Brothers, supra, 471 F.2d at 903.

III.

Despite the massive assault mounted by appellant, our review of the judgment below has been necessarily limited by the law of the case established previously by this court sitting en banc and by the weight that we must accord a jury’s exercise of its responsibilities. Within the narrow field of vision allowed us, we have been unable to detect any significant flaws in the proceedings below. We emphasize that once the causation hurdle has been overcome, the expert on damages need not be armed on the right hand with a slide rule, on the left hand with a computer. He is allowed some economic imagination so long as it does not become fantasy. The judgment of the district court is affirmed.

Affirmed.

      . 15 U.S.C. §§ 1, 2, 15 (1970).

      . Household Goods Carriers’ Bureau v. Terrell, 5 Cir. 1969, 417 F.2d 47, rev’d, 1971, 452 F.2d 152 (on. banc).

      . The judgment n. o. v. in favor of the carriers, affirmed unanimously by the original panel, was not further contested.

        . 15 U.S.O. § 15: “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor . . . and shall recover threefold the damages by him sustained

      . Zenith Radio Corp. v. Hazeltine Research, 1969, 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed. 2d 129; Bigelow v. RKO Pictures, 1946, 327 U.S. 251, 263-267, 66 S.Ct. 574, 579-581, 90 L.Ed. 652, 660-661; Hobart Bros. Co. v. Malcolm T. Gilliland, Inc., 5 Cir. 1973, 471 F.2d 894, 901, cert, denied, 412 U.S. 923, 93 S.Ct. 2736, 37 L.Ed.2d 150; Dailey v. Quality School Plan, Inc., 5 Cir. 1967, 380 F.2d 484, 486-487; Martin v. Phillips Petroleum Co., 5 Cir. 1966, 365 F.2d 629, 632. See generally Note, Private Treble Damage Antitrust Suits: Measure of Damages for Destruction of All or Part of a Business, 80 Harv.L.Rev. 1566, 1571 (1967).

      . See Poster Exchange, Inc. v. National Screen Service Corp., 5 Cir. 1970, 431 F.2d 334, 340, cert, denied, 401 U.S. 912, 91 S.Ct. 880, 27 L.Ed.2d 811; Arthur Murray, Inc. v. Reserve Plan, Inc., 8 Cir. 1969, 406 F.2d 1138, 1149-1150; Dantzler v. Dictograph Products, Inc., 4 Cir. 1962, 309 F.2d 326, 330; Flintkote Co. v. Lysfjord, 9 Cir. 1957, 246 F.2d 368; Momand v. Universal Film Exchanges, 1 Cir. 1948, 172 F.2d 37, 42-44.

      . Weiman Co. v. Kroehler Mfg. Co., 7 Cir. 1970, 428 F.2d 726, 729; Arthur Murray, Inc. v. Reserve Plan, Inc., 8 Cir. 1969, 406 F.2d 1138, 1150; Cherokee Laboratories, Inc. v. Rotary Drilling Services, Inc., 5 Cir. 1967, 383 F.2d 97, 106; Momand v. Universal Film Exchanges, 1 Cir. 1948, 172 F.2d 37, 43. In Haverhill Gazette Co. v. Union Leader Corp., 1 Cir. 1964, 333 F.2d 798, 806, cert, denied, 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343, the court cautioned that the plaintiff need show only that the defendant’s wrongful conduct was a “substantial cause” of the injury, not that it was the “sole” or “the most substantial” cause.

      . See United Mineworkers v. Pennington, 1965, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed. 2d 626; Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 1961, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464.

      . In Haverhill Gazette Co. v. Union Leader Corp., 1 Cir. 1964, 333 F.2d 798, cert, denied, 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343, the trial court had entered a “partial final decree” finding antitrust liability and granting injunctive and declaratory relief. The court of appeals affirmed in part. The trial court then referred the suit to a special master for a determination of the damages caused by the defendant’s wrongful conduct. The trial court affirmed the master’s report even though the master had made an independent and fresh appraisal of the factual issues of causation and damages, and had reached findings that did not “square with” the statements made previously by the trial and appellate courts. Faced with the conflicting findings in the earlier decree and the master’s report, the court of appeals concluded that the decree of liability had to be considered as merely interlocutory, so that the earlier findings on causation would be subject to later revision.
      The case sub judiee is altogether different. The first antitrust trial was not bifurcated, and the court’s judgment was in no sense interlocutory. The en bano decision cast no doubt on the portion of the trial judgment imposing liability on appellant. Even if we were to conclude, which we most certainly do not, that the jury findings in the trial below on the fact of damage, or causation, were inconsistent with the earlier decision on liability, we could hardly decide that the ere banc decision was subject to later revision, especially when nothing in that decision suggested a need to re-evaluate the issue of causation. And neither explicitly nor implicitly did the ere bano Court indicate that appellant on re-trial would be free to show that its wrongful conduct caused no harm to Terrell.

      . The trial judge below, who did not preside at the first antitrust trial, outlined by pretrial order the issues to be tried as (1) what wrongful act of the Bureau caused damage to plaintiff’s business and (2) the amount of any damages. Appellant argues that because Terrell did not cross-appeal on the issue of the correctness of this order, he cannot now complain of any error, and points to the ere bano Court’s similar holding on a different point, see 452 F.2d at 158 n. 18. We note that Terrell did make timely protest to the trial court about the pretrial order, and on appeal has persisted with the argument that the scope of the trial on damages was too broad. We note also that the pretrial order seems to us to represent a reasonable effort by an able trial judge, unfamiliar with the details of the prior lengthy trial and seemingly uncertain regarding the scope of the ere bane mandate on remand, to build and protect the best possible record.

      . One final note is necessary regarding the scope of the ere bano decision. At the damages trial below appellant’s chief argument was that the loss of the OHA business was caused by a contract dispute between Terrell and the OHA that was completely independent of any wrongful actions by the Bureau. While the ere bano opinion is silent on this “independent intervening cause,” our study of the record of the first antitrust trial convinces us that the argument was presented, albeit in a more cursory way, to the first jury. See, e. g., Proceedings of 1st Trial at J273-74. The jury’s general verdict in favor of the plaintiff has to be taken as including a rejection of this theory of causation, and nothing in the ere bmo decision undermined this portion of the jury’s verdict. In other words, this theory of causation, when urged at the damages trial, did not represent substantially new, different evidence that might cast some shadow of doubt on the ere banc version of the law of the case.

      . Appellant argues briefly that the proper measure of damages should have been the “going concern” value of Terrell’s business at the time of its alleged destruction. Since the business had never been profitable, in fact had incurred losses of $150,000 or more, appellant maintains that the going-concern value was zero and that Terrell should have recovered nothing. Our answer is quite simple: the en iano Court specifically approved of the projected lost profits method of computing damages so long as each element of the projection is supported by proven facts. 452 F.2d at 159.
      The correctness of that conclusion is hardly open to doubt. To deny recovery to a businessman who has struggled to establish a business in the face of wrongful conduct by a competitor simply because he never managed to escape from the quicksand of red ink to the dry land of profitable enterprise would make a mockery of the private antitrust remedy. Writing for this court in Lehrman v. Gulf Oil Corp., 5 Cir. 1972, 464 F.2d 26, 45, Judge Wisdom said,
      Particularly is the calculation of damages difficult when the future profits of an enterprise as young as Lehrman’s must be determined, since there is no reliable track record to look back on. But uncertainty cannot end the efforts of the federal courts to redress the harm caused proprietors by violations of the freedom of the marketplace. The wrongdoer must bear the risk of the uncertainty in measuring the harm he causes. Bigelow v. RKO Radio Pictures, Inc., 1946, 327 U.S. 251, 265, 66 S.Ct. 574, 90 L.Ed. 652; Story Parchment Co. v. Paterson Parchment Paper Co., 1931, 282 U.S. 555, 566, 51 S.Ct. 248, 75 L.Ed. 544. The Supreme Court has recently reminded us that “[tjrial and appellate courts alike must also observe the practical limits of the burden of proof which may be demanded of a treble-damage plaintiff who seeks recovery for injuries from a partial or total exclusion from a market; damage issues in these cases are rarely susceptible for the kind of concrete, detailed proof of injury which is available in other contexts.” Zenith Radio Corp. v. Hazeltine Research, Inc., 1969, 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129, 148”
      We find nothing to the contrary in the principal cases cited by appellant in support of the “going concern” argument. In Al-brecht v. Herald Co., 8 Cir. 1971, 452 F.2d 124, for example, the court held that an antitrust plaintiff could not recover both the full present going concern value of his business and loss of future profits because the latter would be included in determining the former. The court also explicitly suggested that where there was no other clear evidence of the value of the business as a going concern, expected future profits might be the only reliable method of computing damages.

      . The results of Bowles’ study were reflected in plaintiff’s exhibit 110, admitted over objection from the Bureau. The net profit analysis, the basis of the dollar damages computation, was introduced, also over defendant’s objection, as plaintiff’s exhibit 97. These exhibits and the testimony underlying them are the focus of appellant’s concern.


source: Caselaw Access Project

author: THORNBERRY, Circuit Judge:

license: Public Domain

text:
    INTERNATIONAL TAPE MANUFACTURERS ASSOCIATION, Plaintiff-Appellee, v. Richard GERSTEIN et al., Defendants-Appellants.
    No. 72-2883.
    United States Court of Appeals, Fifth Circuit.
    May 13, 1974.

      William J. Dunaj, Sp. Asst. Atty. Gen., Miami, Fla., for the State of Florida, Howard S. Smith, Los Angeles, Cal., for defendants-appellants.
    James L. Fisk, Washington, D. C., for plaintiff-appellee.
    Before JONES, THORNBERRY and COLEMAN, Circuit Judges.
   THORNBERRY, Circuit Judge:

Plaintiff-appellee International Tape Manufacturers Association (“ITMA”) contends that the Florida tape piracy statute is in conflict with the federal statute extending copyright protection to sound recordings and thus unconstitutional under the Supremacy Clause. Because the court below prematurely rushed to judgment when the record did not reveal a justiciable controversy we must remand this case for further proceedings.

Appellee is an association whose members “manufaetur[e] tape products by transferring sound recordings on phonograph records or discs with the attempt [sic] to sell or cause to be sold these products in interstate commerce.” Appellants are Florida’s attorney general and state’s attorneys. ITMA argues that appellants should be enjoined from enforcing the Florida tape piracy law because it grants a perpetual copyright for sound recordings and thus defeats the federal policy of giving only limited copyright protection to recordings. Whereas a copyright protects a recording for only fifty-six years, the Florida law gives eternal protection by completely forbidding copying another’s recording for profit without consent.

The procedural history of this case is brief. On January 31, 1972, ITMA filed its complaint asking for declaratory and injunctive relief. On February 7 it filed an “application for designation as class action and for temporary restraining order prohibiting the enforcement of an unconstitutional act,” which the trial court granted March 2. On March 3 defendants/appellants filed motions to dismiss on the grounds that the complaint failed to show, inter alia, federal jurisdiction. The parties submitted briefs discussing the merits of the case and preliminary questions such as jurisdiction, ripeness, and abstention. Dispensing with further pretrial activities, the court below on June 13, 1972, issued a thirty-five page opinion declaring the Florida statute void and enjoining its enforcement.

The trial court had held no hearing, had received no evidence or affidavits, and had given defendants no opportunity to file an answer. There was no discovery. No one had moved for a summary judgment or judgment on the pleadings. The court simply responded to defendants’ motion to dismiss by rendering judgment for plaintiff ITMA.

The abbreviated nature of the proceedings below helps to explain the fatal flaw in ITMA’s case: the absence of a justiciable controversy. More precisely stated, the record does not show a controversy ripe for adjudication, and ripeness is a constitutional, jurisdictional prerequisite to both injunctive and declaratory relief. United Public Workers of America v. Mitchell, 1947, 330 U. S. 75, 67 S.Ct. 556, 91 L.Ed. 754. See O’Shea v. Littleton, 1974, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674.

The general rule for determining whether ripeness exists is easy to state and hard to apply.

The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. ... It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.

Aetna Life Insurance Co. v. Haworth, 1937, 300 U.S. 227, 240-241, 57 S.Ct. 461, 464, 81 L.Ed. 617. The controversy cannot be hypothetical abstract, academic or moot. Id.

The Supreme Court itself recognizes that its test cannot be applied with mathematical certainty.

The difference between an abstract question and a ‘controversy’ . is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy.

Maryland Casualty Co. v. Pacific Coal & Oil Co., 1941, 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826, quoted in Golden v. Zwickler, 1969, 394 U.S. 103, 108, 89 S.Ct. 956, 959, 22 L.Ed.2d 113.

Justiciability is of course not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures, including the appropriateness of the issues for decision by this Court and the actual hardship to the litigants of denying them the relief sought.

Poe v. Ullman, 1961, 367 U.S. 497, 508-509, 81 S.Ct. 1752, 1759, 6 L.Ed.2d 989. In fact at times the ripeness concept has proven so slippery that its application has produced contradictory results. Compare Poe v. Ullman, supra, with Ep-person v. Arkansas, 1968, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228. See K. Davis, Administrative Law Text § 21.03 (3d ed. 1972).

While the case law reveals no precise ripeness formula, it indicates that one challenging a statute must demonstrate that he is immediately injured or jeopardized by its operation. Absent such a showing his case is not ripe, and the court’s adjudication would be an advisory opinion treating a hypothetical case.

In the past plaintiffs have demonstrated injury or jeopardy by showing a previous prosecution coupled with their continuing, or desiring to continue, the illegal activity. See, e. g., Douglas v. City of Jeannette, 1943, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324; Zwickler v. Koota, 1967, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444. At times an official’s threat to enforce the statute against plaintiff has been enough to create ripeness if plaintiff alleged he had engaged, was engaging, or desired to engage in the prohibited activity. See California v. LaRue, 1972, 409 U.S. 109, 93 S.Ct. 390 n. 3, 34 L.Ed.2d 342; Lake Carriers’ Association v. MacMullan, 1972, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257; Public Utilities Commission of California v. United States, 1958, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470. Cf. Police Department of City of Chicago v. Mosley, 1972, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212. And at other times plaintiffs have gotten by with a showing that they reside in the state whose law they challenge and that the law forbids their desired course of action. See, e. g., Roe v. Wade, 1973, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147; Epperson v. Arkansas, 1968, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228.

The cases. suggest that one does not present a ripe controversy if he shows no realistic possibility that the challenged statute will be enforced to his detriment. Compare Poe v. Ullman, 1961, 367 U.S. 497, 81 S.Ct. 1752, 6 L. Ed.2d 989, with Doe v. Bolton, 1973, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201; see Boyle v. Landry, 1971, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696; Younger v. Harris, 1971, 401 U.S. 37, 42, 91 S.Ct. 746, 749, 27 L.Ed.2d 669; Public Service Commission of Utah v. Wycoff Company, 1952, 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291. A specific threat of enforcement is not mandatory, but plaintiffs should somehow demonstrate that the statute poses more than an imaginary threat to their well-being. See Doe v. Bolton, supra (others prosecuted under predecessor statute).

With these observations in mind, we turn now to the instant ease. The record contains no evidence, but merely the allegations in ITMA’s complaint. The complaint states that ITMA’s members are in the business of making tape recordings from phonograph records and selling them in interstate commerce. It does not tell us where the tapes are made or where they are sold. Nor do we know if the members desire to conduct business in Florida in the future. Thus we do not know if the members are now, or ever will be, subject to the laws of Florida.

To muster a threat of prosecution the complaint alleges:

Plaintiff is informed that the filing of criminal complaints is contemplated in that plaintiff has announced his intent of transporting and selling in interstate commerce the products which he manufactures; said sale being in violation of the aforementioned acts if said acts were lawful.

This allegation means only that plaintiff believes its members’ duplicating activities, if carried on in Florida, would violate the Florida tape piracy law; it does not claim a specific threat of prosecution by Florida authorities. There is nothing in the record to show that anyone has been prosecuted, or threatened with prosecution, under the challenged law.

Had the proceedings below continued beyond the complaint and motions to dismiss, the record may have been developed to show a controversy ripe for adjudication. But in its present state it gives us no reason to believe that the Florida tape piracy law impinges in the least on the Association’s activities. It alleges no threat of prosecution; in fact. it fails to describe the nature and location of the members’ activities in sufficient detail to show that Florida law will ever govern them. Since ITMA has shown only an imaginary threat to its members’ well-being, we have before us nothing more than a request for an advisory ruling on the constitutionality of Florida’s tape piracy law. See Gaillot v. Dept. of Health, Education, and Welfare, 5th Cir. 1972, 464 F.2d 598, 599, cert, denied, 409 U.S. 1060, 93 S.Ct. 559, 34 L.Ed.2d 512.

To summarize, the record fails to show a ripe controversy, and its inadequacy is due in part to the trial court’s abbreviation of the proceedings below. Therefore we shall remand this case to permit the parties to establish its factual background in the record and to sharpen the issues controverted. Remanding also will permit the trial court to consider Goldstein v. California, 1973, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163, which was decided subsequent to the trial court’s decision in the instant ease.

Vacated and remanded.

      . (1) As used in this section, unless the context otherwise requires:
      (a) “Owner” means the person who owns the master phonograph record, master disc, master tape, master film, or other device used for reproducing sounds on phonograph records, discs, tapes, films, or other articles upon which sound is recorded, and from which the transferred recorded sounds are directly or indirectly derived.
      (b) “Person” means any individual, partnership, corporation, or association.
      (2) It is unlawful :
      (a) Knowingly and willfully and without the consent of the owner, to transfer or cause to be transferred any sounds recorded on a phonograph record, disc, wire, tape, film, or other article on which sounds are recorded, within the intent to sell or cause to be sold for profit such article on which sounds are so transferred.
      (b) To sell any such article with the knowledge that the sounds thereon have been so transferred without the consent of the owner.
      (3) Any person violating any provision of subsection (2) shall be guilty of a misdemeanor of the second degree, punishable as provided in § 775.082 or § 775.083.
      (4) This section shall neither enlarge nor diminish the right of parties in private litigation. This section shall not be construed in any way to affect §§ 543.02, 543.03, and 543.-04.
      Fla.Stat.Ann. § 543.041 (1972), F.S.A.

      . Any person entitled thereto, upon complying with the provisions of this title, shall have the exclusive right:
      (f) To reproduce and distribute to the public by sale or other transfer of ownership, or by rental, lease, or lending, reproductions of the copyrighted work if it be a sound recording: Provided, That the exclusive right of the owner of a copyright in a sound recording to reproduce it is limited to the right to duplicate the sound recording in a tangible form that directly or indirectly recaptures the actual sounds fixed in the recording: Provided further, That this right does not extend to the making or duplication of another sound recording that is an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording; or to reproductions made by transmitting organizations exclusively for their own use.
      In case of failure of such manufacturer to pay to the copyright proprietor within thirty days after demand in writing the full sum of royalties due at said rate at the date of such demand, the court may award taxable costs to the plaintiff and a reasonable counsel fee, and the court may, in its discretion, enter judgment .therein for any sum in addition over the amount found to be due as royalty in accordance with the terms of this title, not exceeding three times such amount.
      The reproduction or rendition of a musical composition by or upon coin-operated machines shall not be deemed a public performance for profit unless a fee is charged for admission to the place where such reproduction or rendition occurs. 17 Ü.S.C.A. § 1(f) (Supp.1974).

      . U.S. Const. art. VI.

      . See note 9, infra.

      . A copyright is good for an original term of twenty-eight years and an extension of twenty-eight years. 17 U.S.O.A. § 24 (1952).

      . In their motions to dismiss defendants contended that plaintiff had failed to state a claim; that no jurisdiction existed under 28 U.S.O.A. § 1338, the statute plaintiff relied upon; that plaintiff showed no ripe controversy; and that the trial court should abstain under the doctrine of Younger v. Harris. On appeal they raise these points and, in addition, contend that the trial court wrongly decided the case on the merits in view of Goldstein v. California, 1973, 412 U. S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163. Here we reach only the ripeness issue and express no opinion on the others.

      . ITMA claims to have filed an affidavit, but the document it refers to is nothing more than a motion which requests the court to issue a temporary restraining order and designate the suit a class action. Insofar as ripeness is concerned, the motion’s allegations add nothing to the complaint.

      . The various doctrines of “standing,” “ripeness,” and “mootness,” which this Court has evolved with particular, though not exclusive, reference to such cases are hut several manifestations — each having its own “varied application” — of the primary conception that federal judicial power is to be exercised to strike down legislation, whether state or federal, only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action.
      Poe v. Ullman, 1961, 367 U.S. 497, 503-504, 81 S.Ct. 1752, 1756, 6 L.Ed.2d 989.

      . Two sections of the complaint bear on the case’s ripeness.
      II.
      At all times herein mentioned, plaintiff’s members are in the business of manufacturing tape products by transferring sound recordings on phonograph records or discs with the attempt to sell or cause to be sold these products in interstate commerce.
      * * >',i *
      V.
      . . . Plaintiff is informed that the filing of criminal complaints against plaintiff is contemplated in that plaintiff has announced his intent of transporting and selling in interstate commerce the products which he manufactures; said sale being in violation of the aforementioned acts if said acts were lawful. Such prosecution under the unconstitutional provisions of said state statutes are and would be wrongful and unlawful, would create a multiplicity of harassing and vexatious litigation, are imminent and the harm, damage, costs and expenses to be suffered by plaintiff would be irreparable.

      . The opinion in Tape Industries Association of America v. Younger, C.D.Cal.1970, 316 F.Supp. 340, appeal dismissed, 401 U.S. 902, 91 S.Ct. 880, 27 L.Ed.2d 801, a “tape piracy” case in which plaintiffs sought to invalidate the California tape piracy law, provides an example of the kind of background information that is helpful in determining whether ripeness exists. There the parties had shown the location of plaintiffs’ business, its mode of operation, and the prosecutor’s intention to enforce the statute against plaintiffs.


author: LYNNE, Senior District Judge:

text:
    Ernest Lee GRISSOM, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Department of Health and Rehabilitative Services, State of Florida, Respondent-Appellee.
    No. 73-3025.
    United States Court of Appeals, Fifth Circuit.
    May 20, 1974.
    Phillip A. Hubbart, Public Defender, Bennett H. Brummer, Asst. Public Defender, Miami, Fla., for petitioner-appellant.
    Robert L. Shevin, Atty. Gen., Joel D. Rosenblatt, Asst. Atty. Gen., Miami, Fla., for respondent-appellee.
    Before WISDOM and GOLDBERG, Circuit Judges and LYNNE, Senior District Judge.
   LYNNE, Senior District Judge:

Ernest Lee Grissom petitioned the United States District Court for the Southern District of Florida for a writ of habeas corpus, contending that the state trial court had unconstitutionally deprived him of due process of law as guaranteed by the Fourteenth Amendment when it failed to hold a hearing and render a determination on the issue of his. competence to stand trial. The district court denied the petition and we affirm.

Grissom, a 15-year-old junior high school student, was arrested on May 22, 1968, on informations charging him with second degree murder and aggravated assault, after he shot and killed a fellow student and wounded a teacher at his school. Upon the oral motion of the public defender, the trial court on December 9, 1968, ordered that he be committed to a state hospital for psychiatric examination and subsequently scheduled a sanity hearing to be held on February 25, 1969. At the hearing, Grissom called as his own witness a psychiatrist at the hospital who had examined him on three occasions. The psychiatrist testified that Grissom was adequately able to assist court-appointed counsel in his defense and to understand the charges against him. Following this testimony, Grissom moved for and was granted a continuance until March 27, 1969. Although there was some indication at the time that Grissom would later call another psychiatrist to testify on his behalf, he failed to do so, and indeed, produced no further evidence relevant to his competency to stand trial. On April 8, 1969, upon a second motion by the public defender, Grissom was again institutionalized for further examination. On October 21, 1969, he was tried before a six-person jury and found guilty of both charges. The Third Florida District Court of Appeals affirmed his conviction and twenty-year sentence on direct appeal, Grissom v. State, 237 So.2d 57 (Fla.App.2d 1970), and denied his subsequent application for habeas corpus relief. 259 So.2d 738 (Fla.App.2d 1972).

The federal district court below found that Grissom had produced no evidence rebutting the presumption supporting competency and failed to proffer any allegation of incompetency prior to or during the trial. The court therefore denied Grissom’s petition for a writ of ha-beas corpus, from which this appeal has been taken.

The viability of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed. 2d 815 (1966), and Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956), is not questioned by the parties to this appeal. The prosecution or conviction of an accused while he is legally incompetent clearly constitutes a denial of due process of law and state procedures must be adequate to protect against any such abridgement. The constitutionally appropriate standard to be employed in any determination of competency to stand trial, as set forth in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), is “whether he [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” 362 U.S. at 402. This is by no means the same test mandated for determinations of criminal responsibility at the time the crime was committed. The more difficult question, and the one upon which this appeal is predicated, is whether the evidence before the trial court was sufficient to entitle the defendant to a hearing on the issue of competency to stand trial. As this Court noted in Jackson v. Caldwell, 461 F.2d 682 (5th Cir. 1972), cert, denied, 409 U.S. 991, 93 S.Ct. 334, 34 L.Ed.2d 257 (1973), the resolution of this issue has by necessity required an individualized analysis. Certainly extensive hearings and thorough psychiatric examinations are not vital prerequisites to the prosecution of every criminal case. Evidence must be presented which is sufficient to raise a bona fide and reasonable doubt as to the defendant’s competency to be tried at a given point in time. Pate v. Robinson, supra, Jackson v. Caldwell, supra, and Jordan v. Wainwright, 457 F.2d 338 (5th Cir. 1972). In Jordan v. Wainwright, supra, this court stated: “ . . .no sanity hearing is mandated by Pate v. Robinson by a naked suggestion that the defendant may be incompetent. Evidence must be presented which is sufficient to raise a ‘bona fide doubt’ as to the defendant’s competency to stand trial.” 457 F.2d at 339. This is the explicit caveat which has long been imposed upon similarly based habeas corpus proceedings, and which was reiterated by this Circuit in Bruce v. Estelle, 483 F.2d 1031 (5th Cir. 1973):

“Courts in habeas corpus proceedings should not consider claims of mental incompetence to stand trial where the facts are not sufficient to positively, unequivocally and clearly generate a real, substantial and legitimate doubt as to the mental capacity of the petitioner to meaningfully participate and cooperate with counsel during a criminal trial.” 483 F.2d at 1043.

This threshold prerequisite is not what the trial judge may or may not have had in his mind with respect to defendant’s competency at any time prior to commencement of or during the trial. Rather, it is whether evidence was before the trial judge which would be sufficient to clearly and unequivocally create reasonable doubt as to Grissom’s competency to be tried. This is an objective standard. Ordering commitment to a state institution on two occasions and holding an uncompleted sanity hearing do not constitute evidence. Significantly, neither prior to commencement of the trial, nor at any other stage of the proceedings against him, including the trial itself, did Grissom or his counsel suggest to the trial court that Grissom was incompetent to stand trial. The sole assertion made by the defense was that Grissom was insane at the time the offenses were committed. Careful review of the record below reveals that there was no evidence whatsoever presented to the trial judge demonstrative of Grissom’s mental incompetency to stand trial. The similarity of the case sub judice to Jackson v. Caldwell, supra, in which habeas corpus relief was denied, makes the following statements from that case appropriate here:

“In order to keep our inquiry in focus, we repeat that Jackson’s counsel did not raise any question of competency to stand trial. Mental condition at the time of the offense was their sole concern. We are unwilling to hold under the facts as they came out in the 1959 trial for murder that the state trial judge violated Jackson’s constitutional rights by failing to order, sua sponte, that a separate proceeding be initiated to inquire into the accused’s competency to stand trial. The evidence presented to the state judge did not raise a ‘bona fide doubt’ as to Jackson’s competency to stand trial, as the concept of competency was articulated in Dusky, supra, and implemented in Pate v. Robinson, supra, and our en banc decision in Lee v. Alabama, supra.” 461 F.2d at 693-694.

The district court below properly concluded that no evidentiary basis existed which would have supported reasonable doubt on the part of the trial judge with respect to Grissom’s competency. Therefore, the denial of habeas corpus relief is affirmed.

Affirmed.

      . The Bushy standard has been consistently applied by this court. See, e. g., Jackson v. Caldwell, 461 F.2d 682 (5th Cir. 1972), cert. denied, 409 U.S. 991, 93 S.Ct. 334, 34 L.Ed. 2d 257 (1973); Bruce v. Estelle, 483 F.2d 1031 (5th Cir. 1973); and Lee v. Alabama, 406 F.2d 466 (5th Cir. 1969).

      . See also, Wilson v. Wainwright, 445 F.2d 837 (5th Cir. 1971); Tyler v. Beto, 391 F. 2d 993 (5th Cir. 1968) ; Lee v. Alabama, 386 F.2d 97 (5th Cir. 1967) (en banc), cert, denied, 395 U.S. 927, 89 S.Ct. 1787, 23 L.Ed.2d 246 (1968); and Greer v. Beto, 379 F.2d 923 (5th Cir. 1967).


author: PER CURIAM:

text:
    Arthur Lee AVERY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-3089
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 9, 1974.
    Arthur Lee Avery, pro se.
    Gerald J. Gallinghouse, U. S. Atty., Mary Williams Cazalas, Asst. U. S. Atty., New Orleans, La., for respondent-appellee.
    Before BELL, GODBOLD and GEE, 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:

In 1971, in the United States District Court for the Eastern District of Louisiana, petitioner Avery pleaded guilty to a charge that earlier that same year he sold and distributed heroin in violation of 21 U.S.C. § 841(a)(1). He was sentenced to 10 years’ imprisonment which he is presently serving at the Federal Penitentiary at Atlanta, Georgia.

In 1973 Avery filed in the sentencing court a pro se pleading styled a petition for a writ of “habeas corpus in forma pauperis U.S.C. Rule # 2255,” requesting that he be given a “shorter and lighter sentence.” His pertinent allegations follow: (1) He had appeared before the United States Parole Board and was denied parole. (2) He believed that the Board refused to grant him parole because it had considered his presen-tence report which contained a statement taken from him in writing by the F.B.I. (in connection with the present conviction) which statement included a purported admission from him that he had been involved in heroin traffic in 1965. (3) His purported statement to the F.B.I., incorporated in the presen-tence report and in turn considered by the Parole Board, was obtained in violation of his constitutional rights and was an inaccurate and an untrue recordation of what he said to the F.B.I. agent. (4) What he in fact said was merely that he had carried produce from New York to New Orleans, , and he signed the statement believing that it accurately reflected what he had verbalized. (5) He is largely illiterate and did not know when he signed the statement that it contained an admission to earlier participation in heroin traffic, an admission that he had not articulated.

Prior to acting on the petition, the sentencing judge wrote Avery that he had examined the presentence report and that the allegedly erroneous statement did appear in the report. Subsequently the sentencing judge held that insofar as the petition attacked Avery’s sentence it was barred by the passage of time, citing United States v. Granville, 456 F.2d 1073 (CA5, 1972), and insofar as it attacked the Parole Board’s use of the statement it was a claim which could not be asserted in § 2255 proceedings in the sentencing court but could only be maintained in the Northern District of Georgia where Avery was in custody. The sentencing judge’s citation to Gran-ville, a case decided on the basis of expiration of the 120-day time allowed by F.R.Crim.P. 35, implies that he believed that Avery’s allegations did not raise issues cognizable under § 2255 but rather ones which could only be asserted under Rule 35. We think this premise must be reexamined under the teachings of cases indicating that in limited circumstances § 2255 is available to test whether information in a presentence report was relied upon by the sentencing judge and whether the information was erroneous. See, e. g., United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); Haynie v. United States, 474 F.2d 1051 (CA5, 1973); United States v. Espinoza, 481 F.2d 553 (CA5, 1973); Franchi v. United States, 464 F.2d 1035 (CA5, 1972); Lipscomb v. Clark, 468 F.2d 1321 (CA5, 1972); Russo v. United States, 470 F.2d 1357 (CA5, 1972); Baker v. United States, 388 F.2d 931 (CA4, 1968).

Following entry of the dismissal appealed from Avery sought to file in the Northern District of Georgia an attack on the Parole Board’s use of the allegedly erroneous statement. That court, with knowledge of the dismissal order in the federal court in Louisiana, refused to permit filing of the petition in forma pauperis and notified Avery that he must proceed in the Eastern District of Louisiana.

In view of our disposition of Avery’s attack on his sentence, we do not reach the issue of whether venue lies in the Eastern District of Louisiana for the attack on the Parole Board’s use of the statement. In the event the sentencing judge's disposition of the case is not dispositive of Avery’s claim concerning the Parole Board records, he should consider whether venue for that claim lies in his district under 28 U.S.C. § 1391(e) or any other statute, and if venue there is found to be inappropriate, he should consider whether to transfer the cause to the appropriate district under 28 U. S.C. § 1406.

Vacated and remanded.


author: BY THE COURT:

text:
    L. D. HILLIARD, Petitioner-Appellant, v. Dr. George J. BETO, Respondent-Appellee.
    No. 72-1869.
    United States Court of Appeals, Fifth Circuit.
    May 20, 1974.
    Before BROWN, Chief Judge, and WISDOM, GEWIN,’ BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM, RONEY and GEE, Circuit Judges.

       Judge Ingraham, now a Senior Judge, was sitting as a regular active circuit judge at the date this case was considered. Judge Gee was not a member of the Court on that' date.

   BY THE COURT:

The Court on its own motion having taken the case for rehearing en banc, the en banc Court is dissolved and the cause remanded to the panel for disposition. (See following opinion 5 Cir., 494 F.2d 35.


text:
    L. D. HILLIARD, Petitioner-Appellant, v. Dr. George J. BETO, Respondent-Appellee.
    No. 72-1869.
    United States Court of Appeals, Fifth Circuit.
    May 20, 1974.
    Harry H. Walsh, Huntsville, Tex., William T. Armstrong, III, Staff Atty., Weldon, Tex., for petitioner-appellant.
    Crawford Martin, Atty. Gen., E. L. Hamilton, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.
   PER CURIAM:

Following the panel’s decision in Hil-liard v. Beto, 5 Cir., 1972, 465 F.2d 829 the Court on its own motion took the case en banc. Upon further consideration the full Court remanded the case to the panel since even the most conservative reading of the factual allegations of petitioner’s § 2254 complaint shows that he is claiming to be the victim of a broken plea bargain, but there has been no factual hearing to determine whether this claim is -supported. Indeed there was not even so much as a show cause order which would have produced the Texas state court record including the proceedings on receipt and acceptance of the plea and sentencing.

Consequently, as in Gallegos v. United States, 5 Cir., 1973, 476 F.2d 1281 (en banc) withdrawing the panel opinion, Gallegos v. United States, 5 Cir., 1972, 466 F.2d 740 we vacate our prior opinion (465 F.2d 829) and remand to the District Court for an appropriate factual hearing and determination of the plea bargain claim and any matters related to it in the plea and sentencing hearings in the state court.

Vacated and remanded.


text:
    Anthony J. CAPELLA, as Surviving Spouse of Mary E. Capella, Deceased, Plaintiff-Appellant, v. L. R. BAUMGARTNER, M. D., and John F. Pearl, M. D., et al., Defendants-Appellees. Anthony J. CAPELLA, as Administrator of the estate of Mary E. Capella, Deceased, Plaintiff-Appellant, v. L. R. BAUMGARTNER, M. D., and John F. Pearl, M. D., et al., Defendants-Appellees.
    No. 73-2551.
    United States Court of Appeals, Fifth Circuit.
    May 20, 1974.
    Rehearing Denied June 25, 1974.
    See also D.C., 59 F.R.D. 312.
    Sherryl Dunaj, Gerald F. Richman, Miami, Fla., for plaintiff-appellant.
    Frank G. Cibula, Jr., West Palm Beach, Fla., for Bethesda Mem. Hospital.
    Kirsch, Druck & Mills, P. Dianne Weaver, Ft. Lauderdale, Fla., for John F. Pearl, M. D.
    Robert M. Montgomery, Edna L. Caruso, O’Connell & Cooper, West Palm Beach, Fla., for L. R. Baumgartner, M. D.
    Before JONES, THORNBERRY and COLEMAN, Circuit Judges.
   PER CURIAM:

Consolidated both below and here, these were diversity suits for medical malpractice, allegedly resulting in wrongful death. Liability was asserted because of the death of Mrs. Mary Capella, which occurred June 28, 1970. The deceased was an epileptic. She was first hospitalized, as an emergency case, on June 22, 1970. She was discharged on June 27. The evidence for the defendants, disputed by the plaintiff, was that this occurred because Mrs. Capella and her husband insisted on it. The next day she had to be returned, obviously in an extremely precarious condition, and died at 9:32 p. m. of that date. Death was attributed to acute renal failure and potassium poisoning, allegedly induced by a drip administered upon return to the hospital and at a time when high blood urea nitrogen contraindicated such treatment.

Our analysis of the record indicates beyond question that this litigation presented a classical jury case. There was widely conflicting evidence in support of both plaintiff and defense theories and which could have supported a verdict for either side. The verdict was for the defendants.

While appellants submit seven assignments of error, attacking various rulings of the trial Court and the verdict itself, we are of the view that they are legally of no reversible merit. Further discussion would amount to no more than a re-exploration of the ground which the jury covered, thus of no prec-edential value.

Accordingly, the judgment of the District Court is

Affirmed.


author: JONES, Circuit Judge: THORNBERRY, Circuit Judge

text:
    Jerry Leon PATTERSON, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 73-3062.
    United States Court of Appeals, Fifth Circuit.
    May 20, 1974.
    Rehearing and Rehearing Eh Banc Denied June 24, 1974.
    Thornberry, Circuit Judge, concurred specially and filed opinion.
    Melvyn Carson Bruder, Dallas, Tex. (Court-appointed), for petitioner-appellant.

      John L. Hill, Atty. Gen., Gilbert J. Pena, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before JONES, THORNBERRY and COLEMAN, Circuit Judges.
   JONES, Circuit Judge:

The appellant, Jerry Leon Patterson, a prisoner in the custody of the appellee, serving a life sentence for the theft of cattle, seeks reversal of an order of the district court denying his petition for a writ of habeas corpus.

Patterson was arrested on March 7, 1962, and on the same day he made and signed a confession. He was convicted on November 27, 1962. During the trial, pursuant to an order of the court, Patterson was handcuffed and chained. The confession was introduced in evidence. No appeal was taken from the conviction and sentence.

On February 25, 1970, more than seven years after his conviction, Patterson made application to the Texas district court where he had been convicted for a writ of habeas corpus. The relief was denied after an evidentiary hearing. He then sought the issuance of the Great Writ by the district court where another evidentiary hearing was held. His petition was denied and this appeal followed.

Before the district court Patterson contended that he had been denied the right to appeal from his conviction, that his confession introduced in evidence against him was involuntary, that the voluntariness of his confession was determined by the same jury that determined his guilt, and that he was improperly handcuffed and chained during his trial without any instruction being given to the jury. The district court held that the right of appeal had been waived and decided all of the issues before it against the appellant.

After a full evidentiary hearing the district court determined that Patterson, with full knowledge of the right and availability of an appeal, waived his right to appeal. Here it is contended that the state trial court did not inform him of his right to a transcript and appellate counsel which, he says, prevented him from making a knowing and intelligent waiver. Patterson would have us depart from the decision of the Court in Giles v. Beto, 5th Cir. 1971, 437 F.2d 192, where it was held that a state court is not required to inform a convicted defendant in a criminal case of his right to appeal or of the rights incident to the taking of an appeal by an indigent. This ruling was approved in Collier v. Estelle, 5th Cir. 1974, 488 F.2d 929. Both principle and precedent require adherence to the stated doctrine. The facts and the law sustain the district court’s determination that Patterson waived his right of appeal.

The appellant does not urge here, as he did before the district court, that error was committed by submitting the issue of the voluntariness of his confession to the same jury as determined his guilt. He does assert here, as before the district court, that the confession was not voluntary. This question was one of fact and the evidence was more than adequate to support the court’s finding. The contention is without merit.

The contention that Patterson was denied due process because he was shackled during the trial cannot be sustained. At the time of the trial a charge for escaping from custody and a charge for stealing a motor vehicle while he was at liberty after his escape were pending against him. He had made a number of unsuccessful attempts to escape. He was tried in a courtroom where there were several exits which could not be adequately guarded. No abuse of discretion was committed by the judge in ordering Patterson handcuffed and chained during the trial. There was not any error in the failure to instruct the jury with respect to the shackling. No instruction was requested and it is assumed that none was desired.

No error is shown. The decision here reached is not in conflict with this Court’s recent decisions in Collier v. Estelle, supra, or Harris v. Estelle, 1973, 487 F.2d 56.

The judgment and sentence of the district court is

Affirmed.

THORNBERRY, Circuit Judge

(concurring specially):

I respectfully disagree with the majority’s treatment of the first issue, whether Patterson waived his right to appeal. By arguing that he did not knowingly waive his right to appeal, Patterson assumes that he has a federal constitutional right to appeal his state conviction. Certainly the due process clause grants no such right. Griffin v. Illinois, 1956, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Martin v. Estelle, 5th Cir. 1974, 492 F.2d 1120. And the principle of equal protection merely requires that if states choose to permit defendants to appeal, they must allow all to appeal. Id. Patterson does not contend, however, that the State permitted some to appeal while denying him the opportunity. Thus Patterson has raised no constitutional right to appeal, making it unnecessary for us to reach the question of waiver.

Patterson had an opportunity to appeal; his complaint is that he was not advised of the full panoply of rights he would enjoy on appeal. Arguably this grievance should have been advanced by an allegation that his court-appointed trial counsel rendered ineffective assistance by failing to advise him of these rights. See generally Herring v. Estelle, 5th Cir. 1974, 491 F.2d 125; Worts v. Dutton, 5th Cir. 1968, 395 F.2d 341. Then Patterson would have been raising a constitutional claim by contending he had lost his state-created right to appeal through a constitutional deprivation chargeable to the state. But he did not raise that argument, and we need not pass on it here.


text:
    MERCURY MOTOR EXPRESS, INC., et al., Plaintiffs, Florida Texas Freight, Inc., Plaintiff-Appellant, v. Norman C. BRINKE, Defendant-Appellee.
    No. 73-3926
    Summary Calendar.

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

      Bernard C. Pesteoe, Harry A. Payton, Susan Goldman, Miami, Fla., for plaintiff-appellant.
    James J. Kenny, Frank J. Kelly, Miami, Fla., J. Raymond Clark, Washington, D. C., for defendant-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

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

   PER CURIAM:

This appeal presents a peripheral tag end to over ten years of litigation and administrative confrontation between the parties. We affirm the latest district court decision that the plaintiffs-appellants failed to show a clear and patent violation by defendant Brinke of the Interstate Commerce Act.

In 1971, plaintiff freight forwarders collectively sought an injunction under § 417(b)(2) of the Interstate Commerce Act, 49 U.S.C.A. § 1017(b)(2), against Brinke’s operating as a freight forwarder. The district court denied a preliminary injunction and stayed further proceedings pending action by the Interstate Commerce Commission (ICC), which was considering Brinke’s application for a freight forwarder’s permit. On appeal of that decision, we held that application of primary jurisdiction is inappropriate in § 1017(b)(2) litigation and remanded for consideration solely of the question whether plaintiffs could show a “clear and patent” violation of the Interstate Commerce Act. Mercury Motor Express, Inc. v. Brinke, 475 F.2d 1086 (5th Cir. 1973). The’ district court, on remand, concluded that plaintiffs had failed to show such a violation and dismissed their claim for lack of jurisdiction.

Our prior opinion contains a more complete background of the situation than is needed here. The essence of plaintiffs’ claim is that Brinke has been operating as a freight forwarder while possessing only a freight broker’s license from the ICC. As a result of the initial hearing on the motion for temporary injunction, the district court concluded that plaintiffs had failed to establish a clear and patent violation, but the court retained jurisdiction while the ICC considered the case rather than dismissing for lack of jurisdiction. In the district court’s order after remand dismissing plaintiffs’ claim for lack of jurisdiction, the court relied upon its prior conclusion of no clear and patent violation. Appellant freight forwarders now contend that the district court improperly refused to hold further hearings or a trial .after our remand on the issue of clear and patent violation.

Contrary to the appellants’ assertion, we did not remand specifically, for further proceedings but for dismissal for want of jurisdiction if the plaintiffs failed to show a clear and patent violation. Thus, we need not demand more evidence or consideration if the first proceedings, on the conclusions of which the district court relied the second time around, were adequate.

Brinke’s original application for a broker’s permit described the services which he sought to perform. But they included functions both of a broker and freight forwarder. The administrative board apparently failed to discern that his proposed operations were such as are normally performed by forwarders, and he was issued a broker’s license “to operate in accordance with the activities proposed in his application.” From the date of the license, 1964, to the present he has done so. Brinke’s application for a freight forwarder’s license, submitted at approximately the same time, did not fare so well. Though the appropriate ICC functionaries consistently recommended approval of the license, and although the ICC was fully aware of the nature of Brinke’s operations, his application had not received final action at the time of the first district court proceedings. In these circumstances, we conclude that the district court correctly decided that Brinke was not operating in clear and patent violation of the Act.

After our prior decision, the ICC granted Brinke a freight forwarder’s permit and a three-judge court affirmed the ICC order. The three-judge court concluded that Brinke’s past unlawful operations were conducted pursuant to an overbroad, yet nevertheless valid, broker’s license and, thus, were conducted under “color of right.” Because of our conclusion that plaintiffs had not shown a clear and patent violation, we need not consider the effect of the three-judge court decision or explore the relationship between “clear and patent” violation and “color of right” standards.

Affirmed.


text:
    R. N. KELLY COTTON MERCHANT, INC., Plaintiff-Appellee, v. Kenneth YORK, L. M. York, Hugh D. McLane and Charles Cheek, Defendants-Appellants.
    No. 73-3838
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 20, 1974.
    E. Freeman Leverett, Elberton, Ga., for defendants-appellants.
    Eugene A. Epting, Athens, Ga., for plaintiff-appellee.
    Before BELL, SIMPSON 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.

   PER CURIAM:

Appellee is a cotton merchant who brought this diversity action to obtain specific performance of contracts for the sale of cotton by appellant cotton farmers. The contracts were executed in March, 1973, at a price fair at the time but much lower than that prevailing during the fall when delivery was due. The district court granted the relief sought, finding that by virtue of appel-lee’s own contractual commitments to textile mills, to deliver cotton at prices far below then-current market prices, appellee would suffer irreparable injury if appellants failed to perform.

Appellants’ principal contention is that these contracts, being for future delivery of cotton and not having been executed through a recognized commodity change, are invalid under Ga. Code Section 20-602. This statute invalidates commodity futures contracts where no actual future delivery is contemplated, see Fenner & Beane v. Calhoun, 1937, 56 Ga.App. 823, 194 S.E. 51, but these are clearly not such contracts. Section 20-602 also prescribes one circumstance in which contracts for future delivery are valid despite the former prohibition on margin dealing in commodity futures. However, we do not interpret this provision as being the exclusive method by which enforceable contracts for future delivery may be executed, and to so interpret it would place this statute in conflict with both the subsequently-enacted Uniform Commercial Code and also commercial practices which, as shown by this record, are widely accepted in the cotton trade.

Appellants’ other contentions are without merit and need not be discussed. Affirmed.

      . Ga.Code Ann. § 20-602 (1965) :
      “Future delivery contracts of sale, when valid. — All contracts of sale for future delivery of cotton, grain, stocks, or other commodities, (1) made in accordance with the rules of any board of trade, exchange, or similar institution, and (2) actually executed on the floor of such board of trade, exchange, or similar institution, and performed or discharged according to the rules thereof, and (3) when such contracts of sale are placed with or through a regular member in good standing of a cotton exchange, grain exchange, board of trade, or similar institution, organized under the laws of this State or any other State, shall be valid and enforceable in the courts according to their terms: Provided, that contracts of sale for future delivery of cotton, in order to be valid and enforceable as provided herein, must not only conform to the requirements of clauses (1) and (2) of this section, but must also be made subject to the provision of the United States Cotton Futures Act approved August 11, 1916, and any amendments thereto: Provided further, that if this clause should for any reason be held inoperative, then contracts for future delivery of cotton shall be valid and enforceable if they conform to the requirements of clauses (1) and (2) of this section: Provided, further, that all contracts as defined in section 20-601, where it is not contemplated by the parties thereto that there shall be an actual delivery of the commodities sold or bought, shall be unlawful.”

      . Acts 1906, p. 95, Sec. 2, repealed by Acts 1929, p. 245 (codified as Ga.Code Ann. § 20-601 et seq. (1965), provided in part:
      “[Ejvery contract or agreement, whether or not in writing, whereby any person or corporation shall agree to buy or sell and deliver, or sell with an agreement to deliver any wheat, cotton, corn or other commodity, stock, bond, or other security to any other person or corporation, when in fact it is not in good faith intended by the parties that an actual delivery of the articles or thing shall be made, is hereby declared to be unlawful . . .; it being the intent of this Act to prohibit any and all contracts or agreements for the purchase or sale and delivery of any commodity or other thing of value on margin, commonly called dealing in futures, when the intention or understanding of the parties is to receive or pay the difference between the agreed price and the market price at the time of settlement . . . .”

      . Transactions in crops are within the scope of the U.O.O., and contracts for future delivery of crops, whether presently planted or not, are contemplated. Bee Ga.Code Ann. §§ 109A-2-102, 109A-2-105 (1) & (2), 109A-2-107(2). Appellants do not contend that the contracts here fail to satisfy the U.C.C.’s requirements for validity.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Darrell Wayne ELLISON, Defendant-Appellant.
    No. 73-4010
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 20, 1974.
    Ezra Shimshi, Atlanta, Ga. (Court-appointed), for defendant-appellant.

      John W. Stokes, U. S. Atty., Gale McKenzie, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

The jury returned verdicts of guilt against Darrell Wayne Ellison on all three counts of an indictment that charged him with possession of - stolen mail matter — a United States treasury check — with knowledge of its felonious character in violation of 18 U.S.C. § 1708, forging the name of the check’s true payee in contravention of 18 U.S.C. § 495, and uttering and publishing the payee’s forged name with intent to defraud the United States as proscribed by 18 U.S.C. § 495. He appeals from his conviction and the attendant indetermi-nant sentence under the applicable provisions of the Youth Corrections Act, 18 U.S.C. § 5010(b), asserting as error the following:

1. Was the letter that contained the check part of the “mail” at the time the alleged intent to steal existed?

2. Were the court’s instructions on “specific intent” plain error ?

3. Was evidence concerning the landlord’s endorsement on the check in addition to that of the payee admissible?

4. Did the government meet its burden of proof ?

5. Was there independent corroborating evidence to the Appellant’s extra-judicial admissions?

6. Was Appellant’s right to trial by jury violated?

In capsule, the facts stated most favorably to the jury’s verdict showed that Ellison rented space in a rooming house. Mail for all occupants of the premises was deposited in a single letter box. Ellison removed a letter from this box containing a check payable to a former tenant and after forging the payee’s name cashed the check to secure money for drugs. The court specifically charged the jury that Ellison could not be found guilty unless he knew that the check was stolen when he possessed it, that he forged the payee’s name on the stolen check for the purpose of obtaining funds from the United States and that he acted with the intent either to cause loss to another or to bring a gain to himself. The court further charged that drug intoxication could affect the foundation of such intent. These charges were not excepted to.

It is evident on this record that the jury was adequately instructed as to specific intent, which is an essential element of each offense, that defendant’s extra-judicial confession and admissions were sufficiently corroborated by other independent evidence, that the letter containing the check was indeed stolen from the mail, and that the proof amply supports each conviction here. Furthermore, we find that the district judge properly concluded that Ellison’s extra-judicial confession and admissions were voluntary and admissible, and did not rule upon and thereby impermissibly withdraw any issues of fact from the jury. None of appellants assigned errors are valid. Conequently, the judgment of the district court is

Affirmed.


text:
    Katie Ruth ANDERSON et al., Plaintiffs-Appellants, v. J. T. ROBINSON, Individually and as Police Chief of the City of Natchez, Mississippi, etc., Defendant-Appellee.
    No. 73-2638.
    United States Court of Appeals, Fifth Circuit.
    May 16, 1974.
    Herman Wilson, Lawyers’ Committee for Civ. Rights Under Law, Jackson, Miss., Thomas E. Engel, Lawrence D. Ross, New York City, Bernard Jolles, Portland, Or., Lionel G. Hest, New York City, for plaintiffs-appellants.
    Joseph S. Zuccaro, Natchez, Miss., A. F. Summer, Atty. Gen., William A. Al-lain, 1st Asst. Atty. Gen., Charles A.
    Marx, Jackson, Miss., Edwin E. Benoist, Jr., Natchez, Miss., for defendant-appel-lee.
    Before COLEMAN, CLARK and GEE, Circuit Judges.
   PER CURIAM:

In this multiple-party action, appeal is taken from a judgment below adjudicating the claims of fewer than all of the parties plaintiff. No certificate under Fed.R.Civ.P. 54(b) appears in the record, and the parties agree that none has issued. We therefore dismiss the appeal for want of jurisdiction. E. g., Foret v. McDermott, 484 F.2d 992 (5th Cir. 1973).

Should the district court enter a new judgment and issue the Rule 54(b) certificate, the appeal from that judgment may be submitted on the record and briefs prepared for this appeal, supplemented by the new judgment and certificate, and on the oral arguments heretofore heard.

Dismissed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Clarence Willie ROUSE, Defendant-Appellant.
    No. 73-3815
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 13, 1974.

      John W. Rogers, Eric Welch, Atlanta, Ga., for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., Gale McKenzie, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

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

   PER CURIAM:

On March 29, 1973, a lone man robbed the Citizens Trust Bank in Atlanta, Georgia, of $49,925.99. Approximately $29,200 of this amount was in one hundred dollar bills. The day after the robbery Clarence Willie Rouse, the defendant-appellant, bought a new Cadillac by paying $11,100 in one hundred dollar bills, bound in stacks and carried in a brown paper bag. Rouse was subsequently arrested, tried, and convicted of bank robbery in violation of 18 U.S.C. § 2113(a). His only contention on appeal is that it was harmful error to admit testimony concerning his purchase of the Cadillac.

The contested evidence was relevant and probative. “Where there is other evidence of the guilt of the accused and the crime is of such a nature that the acquisition of money may be regarded as a natural or ordinary result of its perpetration, evidence is admissible of the sudden acquisition of money by the defendant . . . at or subsequent to the time the offense was committed, although the source of the money is not definitely traced or identified by the prosecution.” United States v. Manning, 5 Cir. 1971, 440 F.2d 1105, 1110, cert, denied, 404 U.S. 837, 92 S.Ct. 125, 30 L.Ed.2d 69. See also United States v. Iacovetti, 5 Cir. 1972, 466 F.2d 1147, 1153, cert, denied, 410 U.S. 908, 93 S.Ct. 963, 35 L.Ed.2d 270. Three bank employees identified Rouse in court as the robber.

Affirmed.


text:
    Donald JONES, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent-Appellee.
    No. 73-3274
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 15, 1974.
    Donald Jones, pro se.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, La., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Spec. Asst. Dist. Atty., Gretna, La., for respondent-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

After exhausting state remedies Jones sought federal habeas corpus on the ground that the Louisiana grand and petit juries that indicted, tried, and convicted him were unconstitutionally constituted. Adopting the magistrate’s recommendation in which Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), was cited, the District Court refused to grant the writ, because petitioner had raised the jury makeup objections after trial rather than before trial as required by Louisiana rules. We, affirm on the basis of Davis, Marlin v. Florida, 489 F.2d 702 (CA5, 1974), and Rivera v. Wainwright, 488 F.2d 275 (CA5, 1974).

Davis held that under F.R.Crim.P. 12(b), a federal criminal defendant who fails to raise objections to grand jury makeup before the beginning of trial is thereafter properly deemed to have waived them. A majority of the Court held inapplicable the principles developed in earlier cases that when the government claims waiver it must bear a heavy burden of showing a deliberate bypass or understanding and knowing waiver.

Louisiana procedures and the facts of petitioner’s particular situation justify applying Davis in this case. The Louisiana Code of Criminal Procedures states:

B. A motion to quash shall be filed at least three judicial days before commencement of trial when based on any of the following grounds:
* -X- * -X- * *
(2) The general venire or the petit jury venire was improperly drawn, selected, or constituted ....
******
D. The grounds for a motion to quash under Paragraphs B and C are waived unless a motion to quash is filed in conformity with those provisions.

La.C.Cr.P. Art. 535(B)(2), (D). The critical moment under these provisions for grand and petit jury objections comes just three days earlier than the critical moment for grand jury objections identified by the federal rule considered in Davis. Moreover, as in Davis, Marlin, and Rivera, the petitioner was represented by counsel (whose competency is not challenged) before his particular critical moment arrived.

We have considered petitioner’s other claims and conclude they are without merit. '

Affirmed.

      . E. g., Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969).

      . Petitioner was indicted August 26, 1969; counsel was appointed in March 1970; the trial began June 22, 1970.


author: PER CURIAM;

text:
    James THOMPSON, Petitioner-Appellant, v. Leroy N. STYNCHCOMBE, Sheriff, Fulton County, Georgia, Respondent-Appellee.
    No. 74-1280
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 16, 1974.
    Edward T. Floyd, Decatur, Ga., for petitioner-appellant.
    Arthur K. Bolton, Atty. Gen., Lewis R. Slaton, Dist. Atty., Carter Goode, Robert A. Weathers, Morris H. Rosenberg, Asst. Dist. Attys., Atlanta, Ga., for respondent-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

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

   PER CURIAM;

In this habeas corpus appeal Thompson contends the district court should have held that his armed robbery conviction resulted from an illegal search and seizure.

Thompson’s car was parked in the driveway of a residence belonging to one William Middlebrooks when officers came to search the premises for stolen liquor under authority of a valid warrant. While near the driveway one officer noticed that the rear end of Thompson’s car was abnormally low. He shined a flashlight into the car and, because the back seat was ajar, saw liquor bottles in the trunk. Then he pried open the trunk and seized the liquor.

The officer’s search and seizure are amply justified under the plain view doctrine. He had a lawful right to be on the premises, and he saw the liquor simply by peering into the car. The liquor’s presence in an automobile, coupled with the lack of advance knowledge that it would be there, created exigent circumstances that justified its seizure. See Coolidge v. New Hampshire, 1971, 403 U.S. 443, 468, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564; Harris v. United States, 1968, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; Trupiano v. United States, 1948, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663; Walker v. Beto, 5th Cir. 1971, 437 F.2d 1018. The liquor’s seizure was also authorized by the officer’s search warrant, which described the stolen liquor.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Harvey K. GIDDENS and Amanda B. Giddens, Defendants-Appellants.
    No. 73-3980
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 20, 1974.
    Rehearing Denied June 20, 1974.
    Hubert W. Williams, W. .Ford Duane, Orlando, Fla., for defendants-appellants.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Harrison T. Slaughter, Jr., Asst. U. S. Atty., Orlando, Fla., for plaintiff-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

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

   PER CURIAM:

The original indictment charging Mr. Giddens with income tax evasion alleged venue in Chamblee, Georgia. The government admitted it could not prove venue in Chamblee and returned a superseding indictment against both Mr. and Mrs. Giddens alleging venue in the Middle District of Florida.

Relying on a series of cases which stand for the principle that the law of double jeopardy precludes retrial when the district court has ruled in favor of the defendant on facts going to the merits of the case if these facts were adduced at an evidentiary hearing, e. g., United States v. Lewis, 492 F.2d 126 (5th Cir. 1974) [1974, slip op. 2335]; United States v. Velazquez, 490 F.2d 29 (2d Cir. 1973); United States v. Find-ley, 439 F.2d 970 (1st Cir. 1971), Gid-dens insists that the superseding indictment violated his protection against double jeopardy. Ingenious as it is the argument fails. Lack of venue did not go to the merits, was not a defense which would have defeated any indictment alleging the same crime, as were the defenses proved in the cases cited above. The Giddens’ other contentions also lack merit.

Affirmed.