author: JAMES M. CARTER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Eugene William CLAY, Defendant-Appellant (two cases).
    Nos. 72-1964 and 72-2639.
    United States Court of Appeals, Ninth Circuit.
    April 2, 1973.

      James J. Brown (argued), Las Vegas, Nev., for defendant-appellant.
    Alice A. Wright, Asst. U. S. Atty. (argued), William C. Smitherman, U. S. Atty., Patricia Whitehead, Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellee.
    Before BROWNING and CARTER, Circuit Judges, and JAMESON, District Judge.

       Honorable William J. Jameson. United States District Judge, for the District of Montana, sitting by designation.

   JAMES M. CARTER, Circuit Judge:

Clay was convicted by a jury and sentenced on two counts: (1) aiding and abetting the importation of 100 pounds of marijuana, in violation of 21 U.S.C. §§ 952(a) and 960(a)(1), and (2) possessing the marijuana with intent to distribute the same, in violation of 21 U.S. C. § 841(a)(1).

On appeal from the conviction in No. 72-1964, Clay raises three issues: (1) the sufficiency of the evidence on both counts; (2) whether the trial court erred in its instructions on reasonable doubt; and (3) whether the trial court erred in denying a motion for a bill of particulars. We affirm in Case No. 72-1964.

In No. 72-2639, Clay moved for a new trial on the basis of newly-discovered evidence and the trial court denied the motion. He appealed from the ruling. We affirm in Case No. 72-2639.

I.

The Sufficiency of the Evidence

The facts adduced at trial, largely from the testimony of government agents, amply support the convictions. Briefly summarized, the facts show that narcotics agents received information that a white 1964 Ford carrying marijuana would cross the border from Mexico into Gadsden, Arizona, on October 16, 1971. Such a vehicle was seen in the parking lot of a bar in Gadsden, and shortly thereafter Clay drove up, parking his 1967 Malibu near the Ford.

The Ford was driven by an unnamed Mexican, to whom Clay spoke. The Ford then departed Gadsden toward the south and the border. It was later seen returning north from the border, and trailed to Denny’s Restaurant in Yuma. There, it parked next to Clay’s 1967 Malibu. Clay was present as the Mexican loaded the Malibu with sacks that later turned out to be the marijuana in question.

Clay then crossed the parking lot, entered another car owned by him — a 1959 Ford Ranchero — and drove it to a Mobil truck stop. Clint Daniels, the co-defendant, was in a nearby cafe, and Clay was observed sitting with Daniels. Clay then departed in his Ranchero, and Daniels later left in Clay’s 1967 Malibu. Daniels was followed and stopped by agents who seized the marijuana.

We are unable to say that the evidence was insufficient to support the convictions. Especially we note that Clay conversed with the Mexican two times within a few hours, met with Daniels who later was arrested with the contraband, and was present while the contraband was loaded into his own car.

II.

The Instruction on Reasonable Doubt

The complete instruction on reasonable doubt was as follows:

“The burden of proof in this case rests with the prosecution from beginning to end of trial to establish beyond a reasonable doubt every fact essential to the conviction of the defendant. The defendant has no burden to sustain. The defendant is not required to prove his innocence. It is enough that his evidence, if, when taken with the prosecution’s, raises a reasonable doubt as to his guilt, and in that case he must be acquitted.
Now, a reasonable doubt means precisely what the term implies. It is a doubt based upon reason. It does not mean every conceivable kind of doubt, it does not mean a doubt which is imaginery or fanciful or one that is capricious or speculative. It simply means an honest doubt that appeals to reason and is founded upon reason.
If in this case, after you have considered all the evidence, you have such a doubt in your mind as would cause you or any other prudent man or woman to hesitate in some matter of grave concern in your own lives, then you have such a doubt as the law contemplates by the term ‘reasonable doubt.’
A defendant can not be convicted unless his guilt of the crime charged is established to a moral certainty and beyond a reasonable doubt, but the law does not require such a degree of proof as, excluding the possibility of error, produces absolute certainty, because such proof is rarely, if at all, possible. Moral certainty alone is required, that is that degree of proof which produces conviction in an unprejudiced mind.
Now, a reasonable doubt may arise not only from the evidence produced but also from a lack of evidence. Since the burden is upon the prosecution to prove the accused guilty beyond a reasonable doubt of every essential element of the crime charged, a defendant has the right to rely upon failure of the prosecution to establish such proof. A defendant may also rely upon evidence brought out on cross-examination of witnesses for the prosecution.
The law does not impose upon a defendant the duty of producing any evidence. You are to consider the strong probabilities of the case. A conviction is justified only when such probabilities exclude all reasonable doubt as I have defined that term for you. And whenever, after a careful consideration of all the evidence, your minds are in that state where a conclusion of innocence is indicated equally with a conclusion of guilty, or if there is a reasonable doubt as to whether the evidence is so balanced, the conclusion of innocence then must be adopted.
And without it being restated or repeated, you are to understand that the requirement that a defendant’s guilt be shown beyond a reasonable doubt is to be considered in connection with and as accompanying all the instructions-that are given to you.”

Clay contends that the italicized portion of the instruction above (1) interjected a preponderance concept, and (2) by inference it places on the defendant the burden to produce some evidence and therefore tended to confuse the jury on the Government’s burden of proof.

Appellant relies in part on the following eases where somewhat similar language, in combination with other errors in instructions, was found to require reversal. United States v. Link (3 Cir. 1953) 202 F.2d 592, 594 (“. . . if you find the evidence . . . equally balanced . . . you must acquit .” “. . . [Y]ou put [the evidence] in the scales and you weigh it in your minds [and if you] believe that the evidence . . . is as equally consistent with . . . innocence . as it is with . . . guilt, you must acquit . . . . ”); United States v. Hughes (2 Cir. 1968) 389 F.2d 535, 537, cert. den., 396 U.S. 867, 90 S.Ct. 145, 24 L.Ed.2d 120 (1969) (“. . . if you find that the evidence . is as consistent with innocence as with guilt, or that it is more likely that the defendant is innocent than guilty, then you should acquit him.”); United States v. Guglielmini (2 Cir. 1967), 384 F.2d 602, 606 (emphasis deleted) (“. . . if you find a probability of innocence, reasonably, then you have a reasonable doubt.”).

In our case the instruction on burden of proof beyond a reasonable doubt ran seven paragraphs. In six places therein the court referred to the Government’s burden to prove the defendant guilty beyond a reasonable doubt. In two places the court stated the defendant had no burden to sustain.

In' the next to last paragraph the court used the quoted language, “[If] your minds are in a state where a conclusion of innocence is indicated equally with a conclusion of guilty or if there is a reasonable doubt as to whether the evidence is so balanced, the conclusion of innocence then must be adopted.” In the same paragraph immediately before the quoted language the court stated, “A conviction is justified only when such probabilities exclude all reasonable doubt .” and immediately following the quoted language, in the final paragraph the court again stated “the requirement that a defendant’s guilt be shown beyond a reasonable doubt . . . ”

We do not approve the questioned language or any reference to a balancing test in an instruction on burden of proof beyond a reasonable doubt. But considering the whole instruction there was no reversible error.

Attempts to enlarge upon the standard instruction on burden of proof and reasonable doubt can lead to error and are often more confusing than helpful. In Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1950), there was assigned as error a refusal to give an instruction that when the Government’s evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt. The court stated “. . . that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction ... is confusing and incorrect . . . .’’Id. at 139-140, 75 S.Ct. at 137. Accord, United States v. Nelson (9 Cir. 1969), 419 F.2d 1237.

District Judges would be well advised to review their standard instruction on burden of proof and reasonable doubt and eliminate all references to “probabilities” or “balancing of evidence” as such language was used in Link, Hughes and Guglielmini, supra.

III.

The Denial of the Motion for a Bill of Particulars

Clay’s motion for a bill of particulars requested information as to the day, time, and place of the commission of the offenses alleged in the indictment, and his role or participation therein. To deny or grant a bill and the extent thereof rests in the sound discretion of the trial court and its decision will not be disturbed absent an abuse of discretion. Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545 (1927); Cooper v. United States (9 Cir. 1960), 282 F.2d 527, 532.

Although the court denied the motion for the bill, it granted Clay full discovery. We find no abuse of discretion.

IV.

The Motion for a New Trial

A trial court has the power to deny a motion for new trial, without remand to it, while the case is on appeal. United States v. Hays (9 Cir. 1972), 454 F.2d 274; United States v. Frame (9 Cir. 1972), 454 F.2d 1136, cert. den., 406 U.S. 925, 92 S.Ct. 1794, 32 L.Ed.2d 126.

The motion was based on an affidavit of Daniels, who was a co-defendant and a fugitive at the time of trial.

Daniels, in his affidavit, attempted to clear Clay and take the entire blame for the offense. In part, the affidavit stated:

“I saw Gene [Clay] at Denny’s in Yuma and switched cars with him. I had previously made arrangements to pick up my marijuana there and Gene [Clay] arrived when we were making the switch.”

The movant must show, among other things, that the new evidence is not merely cumulative, and would probably produce an acquittal. Pitts v. United States (9 Cir. 1959), 263 F.2d 808, 810, cert. den., 360 U.S. 919, 79 S.Ct. 1438, 3 L.Ed.2d 1535; Gallegos v. United States (9 Cir. 1961), 295 F.2d 879, 881; United States v. Cousins (9 Cir. 1970), 429 F.2d 1271, 1272, cert. den., 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed. 396, and United States v. Martinez (9 Cir. 1970), 436 F.2d 12, 15, cert. den., 401 U.S. 959, 91 S.Ct. 969, 28 L.Ed.2d 244 (1971).

The proposed evidence was cumulative and rather than probably producing an acquittal, it tended to further incriminate Clay.

Nor was the court required to hold an evidentiary hearing. Clay cites cases from other circuits holding that in certain circumstances an evidentiary hearing should be held. No Ninth Circuit cases are cited. Assuming the trial court, in its discretion, may hold an evidentiary hearing, we hold that the trial court here did not abuse that discretion.

Judgment is affirmed. Bail is revoked now.


source: Caselaw Access Project

author: SEITZ, Chief Judge.

license: Public Domain

text:
    James A. GORSO v. BELL EQUIPMENT CORPORATION, a corporation, v. The MARLEY COMPANY, a corporation and Societe de Construction Mecaniques de Bugey and Tichauer et Cie. Appeal of SOCIETE DE CONSTRUCTION MECANIQUES DU BUGEY and Tichauer et Cie, in No. 71-2035, (five cases). Jack CHICONELLA v. BELL EQUIPMENT CORPORATION, a corporation, v. The MARLEY COMPANY, a corporation and Societe de Construction Mecaniques du Bugey and Tichauer et Cie. Clyde A. TEVIS v. BELL EQUIPMENT CORPORATION, a corporation, v. The MARLEY COMPANY, a corporation and Societe de Construction Mecaniques du Bugey and Tichauer et Cie. Harry J. PHILLIPS v. BELL EQUIPMENT CORPORATION, a corporation, v. The MARLEY COMPANY, a corporation and Societe de Construction Mecaniques du Bugey and Tichauer et Cie. Amedio VITALE v. BELL EQUIPMENT CORPORATION, a corporation, v. The MARLEY COMPANY, a corporation; Societe de Construction Mecaniques du Bugey, and Tichauer et Cie.
    Nos. 71-2035 to 71-2039.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 14, 1972.
    Decided March 2, 1973.
    As Amended April 5, 1973.

      Kim Darragh and Raymond H. Conaway, of Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, Pa., for appellant.
    James E. Coyne, Lancaster, Mentzer, Coyne & Duffy, Pittsburgh, Pa., for appellee.
    Before SEITZ, Chief Judge, and ALDISERT and ROSENN, Circuit Judges.
   OPINION OF THE COURT

SEITZ, Chief Judge.

This appeal arises out of the denial by the district court, 330 F.Supp. 834, of a motion to dismiss two impleaded defendants for lack of personal jurisdiction. The district court certified the question for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), and this court accepted the appeal. Pennsylvania law applies since federal jurisdiction here is predicated upon diversity of citizenship.

Appellants are two French companies, Societe de Construction du Bugey and Tichauer et Cie. The former manufactures a tower crane used in the construction industry; the latter is its exclusive world sales agent. These two companies were impleaded by the original defendant and present appellee, Bell Equipment Corporation. Bell is a New York corporation which previously represented appellants in the United States as their national sales agent. Bell has maintained an office in Pennsylvania at all times relevant to this suit.

Through Bell, one of appellants’ tower cranes was sold in December, 1965 to the Marley Company, a Kansas corporation engaged in construction. It was delivered in February, 1966 to a Marley jobsite in Beverley, Ohio and was used on that site until its completion in early 1968. That February, it was moved to a new jobsite at Huff, Pennsylvania. Bell aided Marley in setting up the crane at both the Beverley and the Huff sites. In October, 1968, while being used at Huff, the crane collapsed and injured several workers, plaintiffs herein.

The French companies are not registered to do business in the Commonwealth of Pennsylvania nor do they maintain an office in the state. At the time of the sale of the crane, they possessed a national sales agent, Bell; but apparently neither of the two cranes of appellant Societe’s manufacture which Bell sold in the United States was sold or delivered in Pennsylvania. However, Bell maintained an office in Pennsylvania throughout this period.

By the summer of 1968, Bell had terminated its relationship with appellants. However, even though it had ceased to represent the two French firms, it continued to service in Pennsylvania the crane which it had sold to Marley.

While the crane was being used at Huff, individual delivery on six orders was made to the jobsite from the Societe factory in France by appellant Tichauer. Five of these orders had been placed by Marley on December 1, 1967, some three months prior to the removal of the crane to Pennsylvania; we believe these five orders constitute one transaction. A sixth order was also placed; however, on the record before us, it is impossible to determine when it was made. For purposes of our decision, we will assume it was made subsequent to the crane’s removal to the Huff jobsite and represents a separate transaction. Marley was forced to order these parts directly from appellants in France because by that time, Bell had ceased to represent the two French firms. No solicitation by appellants was involved; rather, Bell had advised Marley to contact appellants directly since there was no domestic distributor of the parts These parts were ordered from, and invoiced to, Marley's central office in Kansas City, Missouri. They were drop-shipped to the Pennsylvania construction site.

After a hearing, the district court concluded that sufficient contacts existed between Pennsylvania and appellants for personal jurisdiction to lie consistent with both constitutional and state statutory requirements. In reviewing this determination, two questions are posed: (1) whether state statutory requirements in fact have been met; and (2) if so, whether personal service can be made upon appellants consistent with due process requirements of the Fourteenth Amendment.

I. THE EVOLUTION OF THE PENNSYLVANIA STATUTE.

In 1968, Pennsylvania amended the terms of its “long-arm” statute as applied to foreign corporations so as to extend its reach. It presently states:

For the purposes of determining jurisdictions of courts within this Commonwealth, the doing by any corporation within this Commonwealth of a series of similar acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object, or doing a single act in this Commonwealth for such purpose, with the intention of thereby initiating a series of such acts, shall constitute “doing business.” For the purposes of this subsection, the shipping of merchandise directly or indirectly into or through this Commonwealth shall be considered the doing of such an act in this Commonwealth.

15 P.S. § 2011(C). This was the final step in a series of legislative responses to successive judicial interpretations of amendments to the “long-arm” statute. In each case, the state courts had construed the legislative purpose as not intending to extend jurisdiction over a foreign corporation in a specified instance even though it was constructively present within the state. Each time, the legislature thereafter had amended the statute so as to broaden its scope.

For our purposes, only the last two amendments of the statute need be examined. The first amendment in 1963 involved the companion statute to § 2011(C) — § 2011(B) [15 P.S. § 2011(B) (1967)]. Previous to the amendment, the statute had read, in part:

Any foreign business corporation which shall have done any business in this Commonwealth, without procuring a certificate of authority to do so from the Department of State, shall be conclusively presumed to have designated the Secretary of the Commonwealth as its true and lawful attorney authorized to accept, on its behalf, service of process in any action arising [out of acts or omissions of such corporation] within this Commonwealth. .

Based upon this language, the Supreme Court of Pennsylvania had held that before jurisdiction over a foreign corporation would lie, the tortious activity sued upon must have arisen out of an act or omission by the foreign corporation while it was actually present within the state. Rufo v. Bastian-Blessing Co., 405 Pa. 12, 173 A.2d 123 (1961). The legislative response in 1963 was to amend § 2011(C) by striking out the requirement of “acts or omissions” within the Commonwealth — the language upon which the state supreme court had predicated its decision.

The second, and most recent, step came in response to judicial interpretations of the “doing business” and “entry” requirements found in the predecessor of § 2011(C). The Superior Court of Pennsylvania construed the statute as not extending jurisdiction over a foreign lamp manufacturer which dealt through independent contractors in Pennsylvania. Cecere v. Ohringer Furniture Co., 208 Pa.Super. 138, 220 A.2d 350 (1966). This decision was based upon the interpretation the Supreme Court of Pennsylvania had given these terms. See, e.g., Miller v. Kiamesha-Concord, Inc., 420 Pa. 604, 218 A.2d 309 (1966). The superior court concluded that although the Commonwealth had the constitutional power to reach the defendants, the legislative intent, as interpreted by the state supreme court, was not to extend state jurisdiction to those limits permissible under due process.

Two years later, in 1968, the legislature passed the current version of § 2011(C). It deleted the “entry” requirement and stipulated that “the shipping of merchandise directly or indirectly into or through this Commonwealth shall be considered ‘doing business.’ ” In so doing, the legislature eliminated the requirement of an actual corporate presence as a condition precedent to the exercise of jurisdiction over a foreign corporation. Rather, it made jurisdiction depend upon whether the corporation derived revenues from activity within the state; the distribution and marketing system which it set up for deriving those revenues was rendered immaterial for jurisdictional purposes.

An additional factor which has been seen as influencing the passage of the 1968 amendment was the adoption by the Supreme Court of Pennsylvania of the position of § 402A, Restatement of Torts 2d, on strict liability in tort for defective products. The supreme court thereby sought to provide better protection for state residents against defective products. Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). The passage of the amendment complemented these efforts by providing a local forum for suits against foreign manufacturers of such products.

II. JUDICIAL INTERPRETATIONS OF THE 1968 AMENDMENT.

Since its passage, the Supreme Court of Pennsylvania has not had occasion to consider the new amendment and to define conclusively its scope. However, the federal district courts and the Superior Court of Pennsylvania each have had cases presenting the issue. Of the two eases considered by the superior court, only one provides any guidance; the other diverged onto the issue of whether the foreign corporation could be served consistent with due process mandates.

The superior court case relevant for our consideration involved a contract between a foreign corporation and an announcer for one of its subsidiary corporations. The court held the plaintiff had failed to show that either the subsidiary corporation was merely a paper corporation for purposes of convenience or that more than one of these contracts with the parent corporation had been executed with employees of the subsidiary. Therefore, since only the one transaction was shown to have occurred involving the foreign corporation within the Commonwealth, and since there was no basis in the record for piercing the “corporate veil” between the subsidiary and the foreign parent, the latter was not “doing business” within the Commonwealth for purposes of the statute. Lit v. Storer Broadcasting Co., 217 Pa.Super. 186, 269 A.2d 393 (1970).

Of those federal district courts which have considered the new amendment, a case before the District Court for the Eastern District of Pennsylvania was most closely analogous to our own. In that case, a crane manufactured by a Swedish company and similar in design to appellants’ was being used on a construction project in Philadelphia. While being used on this site, it collapsed and injured several people. As here, the manufacturer had a national distributor; but none of its cranes had been sold in Pennsylvania. The crane which collapsed had been brought in by the purchaser — also a construction company, but only after it had been used on several other jobsites. Service was attempted on the Swedish company, which challenged the jurisdiction of the court. On these facts, the district court held the manufacturer amenable to service.

The court focused upon the statutory stipulation that the “[shipment] of merchandise . . . indirectly into this Commonwealth” satisfied the “doing business” requirement. The court concluded that under this language, any product for which there is a national distributor has been “indirectly shipped” into the Commonwealth by the manufacturer whenever it is subsequently brought into the Commonwealth. For purposes of determining whether this indirect shipment has occurred, it is irrelevant who brought the instrumentality into the state. Further concluding the Supreme Court of Pennsylvania had liberally construed the term “doing business” — which had been in the statute prior to the 1968 amendment, the court held the addition of the “indirect shipment” language in the amendment to extend jurisdiction of the state courts to the constitutional limit. Therefore, as to any manufacturer with a national distributor, should his product be brought subsequently into the Commonwealth and while there cause injury due to defective design and/or manufacture, statutory prerequisites for jurisdiction over that manufacturer on a suit arising out of the injury would be satisfied. Benn v. Linden Crane Co., 326 F.Supp. 995 (E.D.Pa.1970).

This theory, adopted by the district court in Benn and urged upon us by appellee Bell herein, has been characterized as the “stream of commerce” theory. Its basic premise is that by having a national distributor, the manufacturer has put his product into the national “stream of commerce.” Under this theory, the manufacturer need only: (1) have a national distributor; and (2) be able to reasonably foresee that his product might be used anywhere. Therefore, for purposes of a subsequent injury, he is constructively doing business in every state and cannot complain should he thereby become amenable to one state’s jurisdiction. If his product should come into a state, and because of the manufacturer’s tortious conduct cause injury in that state, he is consequently subject to that state’s jurisdiction regardless of who transported the instrumentality of the injury into the state. Applying this to the instant case, appellants did have a national distributor and could reasonably foresee that a construction crane would not be permanently affixed to any site but rather would be transported from jobsite to jobsite. Therefore, under this theory, the subsequent transportation of the crane into the Commonwealth by Marley constituted an “indirect shipment” by appellants for purposes of the statute.

Central to this concept of “stream of commerce” is the definition given the term “place of the tort.” For these purposes the place of the tort is not where the defective design or manufacture of the product occurred; instead, it is the site at which the tortious conduct culminates in injury. Thus, the defectively designed or manufactured product carries the manufacturer’s tortious conduct with it. When that defect finally causes injury, the manufacturer is constructively considered to have committed the tortious act at the site of the injury because that is where the latent defect bloomed into a tort. In fact, this concept of “place of tort” has been adopted in Pennsylvania. See, e.g., Wilk v. Ensign Bickford Co., 421 Pa. 161, 218 A.2d 778 (1966). Therefore, appellee Bell’s contention that the cause of the injury here being sued upon was defective design and/or manufacture of the crane alleges a corporate act by appellants within Pennsylvania.

The district court in the instant case adopted the theory set out in the Benn opinion as its own and refused to dismiss appellants for lack of jurisdiction. 330 F.Supp. 834, 836 (W.D.Pa.1971).

III. THE STATUTORY REQUIREMENT OF “DOING BUSINESS” WITHIN THE COMMONWEALTH.

For jurisdiction to lie under § 2011(C), a foreign corporation must do a “series of similar acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object, or a single act in this Commonwealth, . . . with the intention of thereby initiating a series of such acts.” The last interpretation rendered this language was in 1967, a year before the current amendment. In construing the “series . . . or a single act” language, which has remained unchanged into the current statute, the court stated: “The statute contemplates a systematic course of conduct as contrasted with isolated or sporadic occurrences (Greco v. Bucciconi Engineering Co., 246 F. Supp. 261 (W.D.Pa.1965)).” Myers v. Mooney Aircraft, Inc., 429 Pa. 177, 185, 240 A.2d 505, 510 (1967). In Bueciconi, the decision cited by the court, the district court concluded that the state supreme court had construed the “doing business” requirement as not extending state jurisdiction to the constitutional limit.

The 1968 amendment eliminated the requirement of an actual presence or “entry” into the Commonwealth. Additionally, it added the “shipment” language so as to extend jurisdiction over foreign corporations regardless of the vagaries of each individual company’s distribution and marketing system. However, neither of these changes affected the actual context surrounding the "doing business” requirement. Therefore, we conclude the validity of the definition of “doing business” rendered by the Supreme Court of Pennsylvania in the Myers decision was unaffected by the subsequent amendment. Because the legislature in the 1968 amendment did not change the wording in light of the state supreme court’s decision in Myers, we are constrained to say the current Pennsylvania statute was not intended to extend the jurisdiction of the Pennsylvania courts to the maximum consistent with constitutional due process.

Having concluded the state statute does not reach the constitutionally permissible limit, our determination becomes whether, within the parameters of the state statute as previously defined by the state supreme court, appellants were doing business within the Commonwealth.

First, because of the 1968 amendment, it is immaterial whether Bell be classified as an agent or an independent contractor. Second, we note no sales of appellants’ crane have been made in Pennsylvania. Third, although Bell maintained an office in the Commonwealth at all times relevant to this case, the relationship between appellants and appellee Bell had terminated before the instant cause of action arose. Appellants thereby ended their contacts with the Commonwealth through Bell. This cessation of contacts with the state assumed a finality since there appears to have been no new national distributor appointed and since there had been no prior sale within the state. Therefore, the record establishes that prior to the collapse of the crane, appellants Societe and Tichauer had ceased to perform through an agent “a series of similar acts for the purpose of thereby realizing pecuniary benefit . or . a single act . . . for such purpose, with the intention of thereby initiating a series of such acts” within Pennsylvania. Thus, we conclude that statutory prerequisites for “doing business” by appellants under the terms of the 1968 amendment cannot be satisfied through the terminated agency of appellee Bell.

The acts of appellants within this Commonwealth since their termination of the business relationship with Bell remain to be considered. These are: (1) the tortious act of appellants within the Commonwealth, to wit, the collapse of the crane allegedly due to defective design and/or manufacture; and (2) the delivery of spare parts into Pennsylvania proximous in time to the collapse of the crane.

The Bueciconi case — the decision of the federal district court cited with approval by the Supreme Court of Pennsylvania in Myers — provides perspective on whether these post-termination acts were sufficient to establish the requisite contacts with the state for purposes of “doing business.” There, a machine of defendant’s manufacture had been brought into Pennsylvania although defendant company itself had no business dealings within the state. As here, no sale had been made within the Commonwealth. Subsequently, the user had problems with the machines; in order to iron them out, the president of the defendant company made several trips into the state. This, the district court had held, did not constitute “doing business” for purposes of the statute in the absence of other indicia of “doing business.” In the language of the Supreme Court of Pennsylvania, this would be “isolated or sporadic occurrences” rather than a “systematic course of conduct.” We note that as in the instant case, the tort occurred in Pennsylvania and was consequently an additional act of the defendant company within the Commonwealth under the “place of tort” theory.

Although there were six deliveries within the state, they represented no more than two transactions between the parties, one of which culminated some time before the crane was removed to Pennsylvania. We believe the five separate deliveries within the Commonwealth pursuant to the December 1 transaction represented one “shipment” for purposes of § 2011(C), and the sixth delivery pursuant to the second transaction represented a second “shipment.” In this context, we are unprepared to say the two shipments of spare parts into the state combined with the constructive tortious conduct within the state together demonstrated a systematic course of conduct within Pennsylvania by appellants. Rather, they are no more than sporadic occurrences and resultantly, are insufficient to satisfy statutory prerequisites for the exercise of personal jurisdiction by the state courts in the absence of a prior in-state sale. Since federal jurisdiction in the instant ease is predicated upon diversity of citizenship, the district court here can reach no farther than could a state court. Therefore, we are constrained to hold that personal jurisdiction does not lie over these appellants under the terms of the Pennsylvania “long-arm” statute. Having so concluded, it is unnecessary to consider whether service can be effected upon these appellants consistent with the dictates of the Due Process Clause of the Fourteenth Amendment.

IV. CONCLUSION.

In conclusion, we hold appellants conducted insufficient activities within the Commonwealth as to render them amenable to personal service under the terms of the Pennsylvania “long-arm” statute, 15 P.S. § 2011 (Purdon Supp. 1972). Therefore, the district court erred in denying appellants Soeiete and Tichauer’s motion to dismiss for lack of personal jurisdiction.

Accordingly, the order of the district court will be reversed and the case remanded to the district court for further proceedings.

      . Marley was also impleaded by Bell but is not involved in the instant appeal.

      . As with Marley, the plaintiffs are not involved in the instant appeal.

      . There appears to be no dispute as to the operative facts. In addition to the recitation of facts in the district court’s opinion, elements of our statement of facts have been gleaned from the interrogatories, depositions, and exhibits filed in the district court.

      . DiLido Hotel v. Nettis, 215 Pa.Super. 284, 257 A.2d 643 (1969).

      . We note that had appellants effected a sale of one of their cranes within the Commonwealth, each of these elements might have assumed a distinctly different importance for purposes of satisfying state statutory prerequisites for the exercise of jurisdiction.

      . Subsequent to the filing of this opinion, appellee Bell’s counsel brought to our attention a new amendment to § 2011(C), effective February 15, 1973. The new act reiterates the bases for jurisdiction in § 2011(C), discussed in this opinion. Additionally, it has a new subsection providing that the jurisdiction of the courts of the Commonwealth is to extend to the maximum allowed under the Constitution of the United States. 42 P.S. § 8309(b) (Pardon’s Stat.Legis.Supp.1973).
      The contested service was effected under the now repealed statute; however, the provisions for effecting service under both the old and the new statutes are the same. Compare 15 P.S. § 2011(B) (1967) with 42 P.S. § 8307 (Purdon Stat. Legis.Supp.1973). From this, appellee Bell urges that it has made effective service under the terms of the new statute, and that the new statute is to be retroactively applied to the instant case. However, the only service which has been effected is that made under the prior statute, which we have held not to reach appellants. We do not believe that ineffective service under the old statute can be validated merely by the subsequent passage of a new jurisdictional statute with more inclusive provisions.
      Since Bell has not attempted service under the new statute, we need not consider any remaining issues on retroactive versus prospective application nor on the constitutional efficacy of such service if made.


author: TRASK, Circuit Judge:

text:
    George M. HEDLA et al., etc., Appellees, v. Blaine McCOOL et al., etc., Appellants. George M. HEDLA et al., etc., Appellants, v. Blaine McCOOL et al., etc., Appellees.
    Nos. 71-1985, 71-2017.
    United States Court of Appeals, Ninth Circuit.
    April 10, 1973.

      Richard A. Helm (argued), Edward W. Tucker, Burr, Pease & Kurtz, Anchorage, Alaska, for Blaine McCool and others.
    Allen McGrath (argued), McGrath & Flint, Anchorage, Alaska, for appellee George M. Hedía.
    Before MERRILL, DUNIWAY and TRASK, Circuit Judges.
   TRASK, Circuit Judge:

These appeals are from judgments on claims and counterclaims arising from a contract between Hedla & Sherwood (accountants) and McCool & McDonald (architects). The district court awarded $12,587 plus costs and attorneys’ fees to accountants and denied relief to architects. The court obtained jurisdiction because of diversity of citizenship under 28 U.S.C. § 1332. The appeal is before us by virtue of 28 U.S.C. § 1291.

Little dispute exists as to the basic facts although some of the collateral issues are not as clear. Architects and accountants entered into a written agreement on or about September 2, 1964, for architectural services to be performed for accountants. Neither McCool nor McDonald was an architect licensed by the State of Alaska at the date of the signing of this agreement. The contract was for the construction of a building at a cost of approximately $96,000. Although the cost figure was not stated in the contract, it was discussed and understood. When the plans were completed, they were delivered to accountants so that construction bids could be obtained. The low bid amounted to the sum of $195,544.20 including the cost of some basement and foundation work already completed and the cost of some ceramic tile already purchased. Efforts of the architects to redesign in order to bring the building cost to a figure approximating the accountants’ proposal were unavailing.

Because of the disparity between the estimated cost and the low bid the accountants notified the architects that they were terminating the contract and would employ another architect. This they did, but lost the expected use of the building for approximately a year because of the delay.

A statute of the State of Alaska provides that it is unlawful for a person to practice or offer to practice architecture in the state unless he is registered and licensed.

Alleging breach of contract, the architects sued for recovery of fees and infringement of common law copyright because accountants had made use of the architects’ plans. The accountants asserted in defense that the contract was unenforceable because architects were unlicensed, and filed a third party action against the architects for damages caused by delay and improper design.

On cross motions for summary judgment, the defense of unenforceability of the contract because of the failure of the architects to be licensed in Alaska, was sustained. The trial court also dismissed the counts of the complaint based upon common law copyright and wrongful appropriation of plans. The architects’ complaint was thus dismissed in its entirety. Finally, the trial court granted the accountants’ motion for summary judgment as to the liability of the architects for failure to furnish useable plans pursuant to the contract. Trial was held before the court on the only issue remaining which was the amount of damages sustained by the accountants. Those damages were fixed at $30,030 for loss of building use, less $17,443 which the accountants would have had to pay for expenses had the building been in use, or a net sum of $12,587 plus attorneys’ fees and costs. The court denied recovery for the cost of ceramic tile which accountants had purchased for the new building but did not use, because no evidence was produced as to its present value.

The architects appeal from the summary judgment which denied them all relief upon their complaint, and from the money judgment entered against them. The accountants appeal from the refusal of the court to award recovery to them for the cost of the tile and to award prejudgment interest.

We believe the trial court was correct in all particulars and affirm.

Architects contend that if they do not perform much work within the state and have no continuous business there, the Alaska statute does not apply. They point out that because the work on the plans was done principally, if not completely, in Seattle where they were licensed, they were not practicing professional architecture “in the state.” Reliance is placed upon Gaisford v. Neuschatz, 201 So.2d 635 (Fla.Dist.Ct.App. 1967) and Johnson v. Delane, 77 Idaho 172, 290 P.2d 213 (1955).

The Alaska professional code, however, has a provision which will not permit such a narrow construction. Section 08.48.190 states:

“A registered professional . architect who is not a resident of the state or does not have an established place of business in the state but who possesses the qualifications required by this chapter shall qualify under this chapter before he may solicit business for, enter into contracts for, or perform professional services requiring registration or a permit.”

In addition, the evidence disclosed this was not an isolated transaction.

Architects also point out that because their plans were submitted to and approved by an engineer registered in Alaska they are not in violation of the laws of Alaska. They point to Dick Weatherston’s Associated Mechanical Services, Inc. v. Minnesota Mutual Life Insurance Co., 257 Minn. 184, 100 N.W.2d 819 (1960), in support of their position. In that case, however, the unlicensed architect had been employed as a contractor, not as an architect. All of his plans and designs were submitted to the owner’s licensed architects for approval. The case here more closely parallels Food Management, Inc. v. Blue Ribbon Beef Pack, Inc., 413 F.2d 716 (8th Cir. 1969), where the court held that the company was practicing engineering and architecture within the state because the firm with which they were associated and which was licensed, was not performing the entire service and was not in charge of the work. The rule relied upon by accountants has solid support in the authorities as being for the protection of the public. Snodgrass v. Immler, 232 Md. 416, 194 A.2d 103 (1963); Lapuk v. Blount, 2 Conn. Cir. 271, 198 A.2d 233 (1963); Hickey v. Sutton, 191 Wis. 313, 210 N.W. 704 (1924); see Restatement of Contracts § 598, comment a at 1110 (1932). The differences in conditions in Alaska from those in the “lower 48” justify the requirement of an Alaskan license as a matter of state policy for the protection of its citizens.

After the contract had been terminated, the accountants employed a licensed Alaskan architect and gave him the plans. This included the floor plans prepared by the accountants in the first instance and given to the architects. The Alaskan architect incorporated about 15% of the unlicensed architects’ plans in his own work product in preparing new plans which would be within the accountants’ proposed cost range. Architects claim the right to recover damages for infringement of their common law copyright and the appropriation of their work.

Architects rely principally on Ashworth v. Glover, 20 Utah 2d 85, 433 P.2d 315 (1967), and Vic Alexander & Associates v. Cheyenne Neon Sign Co., 417 P.2d 921 (Wyo.Sup.Ct.1966), to support this claim. In neither of those cases does there appear to have been an illegal contract. Here, however, there was an illegal contract, and that illegal contract must necessarily be relied upon to recover in any theory of common law copyright or quantum meruit. In other eases cited by architects an illegal contract was involved, but the court allowed recovery because suit was brought not upon the illegal contract but upon a separate contract. That situation does not prevail here. In Ryan v. Mike-Ron Corp., 226 Cal.App.2d 71, 37 Cal.Rptr. 794 (1964), relief was granted even though there had been an illegal contract. It did so because it felt that justice could be done without disserving the public interest. Architects’ reliance on Ryan overlooks the fact that the contract there was not prohibited by statute and only a small part of the consideration for the bargain involved motor vehicles, the sale of which required particular formalities in the contract. The court recognized the general rule which is applicable here.

“As a general rule, however, a guilty party to an illegal contract cannot recover in quasi contract for the benefit conferred.” 37 Cal.Rptr. at 796.

There is no reason to expect that the courts of Alaska would not follow/the general rule. In such cases where there appear to be no state decisions we give great deference to the judgment of the district court for an assessment of what might be expected were the state court to rule upon the problem. Bigjoe v. Pioneer American Insurance Co., 446 F.2d 28 (9th Cir. 1971). We have no reason here to believe his judgment was not correct.

The final matters for consideration concern the right of the accountants to recover damages for loss of use of the building and for the cost of tile which accountants bought and did not use, together with the claim of offset by the architects.

Generally if a contract is illegal, neither party may recover on it. Associated Press v. Taft-Ingalls Corp., 340 F.2d 753 (6th Cir.), cert. denied, 382 U.S. 820, 86 S.Ct. 47, 15 L.Ed.2d 66 (1965); Harriman v. Tetik, 56 Cal.2d 805, 17 Cal.Rptr. 134, 366 P.2d 486 (1961). The court leaves the parties where they are on the theory that it will not aid either wrongdoer. Singleton v. Foreman, 435 F.2d 962 (5th Cir. 1970); Whitney v. Continental Life & Accident Co., 89 Idaho 96, 403 P.2d 573 (1965). However, where one of the parties is ignorant of the illegality he is not precluded from the recovery of damages by the nonperformance of the bargain by the other. Singleton v. Foreman, supra, 435 F.2d at 969; Redke v. Silvertrust, 6 Cal.3d 94, 98 Cal.Rptr. 293, 490 P.2d 805 (1971).

Said the trial court with reference to knowledge of illegality by the accountants :

“At no time since either the beginning of this case, some four years past, or the ruling by this Court declaring the contract illegal, have defendants ever asserted, except during oral argument on their motion for summary judgment, one day before trial, that plaintiffs (accountants) knew of or even supposed that defendants were not licensed to practice architecture within the State of Alaska. Since defendants have failed to raise this issue in a timely manner, little justification exists to present it at this late date as a genuine issue in this case. Therefore defendants may be afforded relief for damages, if any, sustained under the illegal contract.” C.T. at 244-45.

The architects in their brief before this court assert that the accountants were aware of the fact that architects were not licensed. Appellants’ Brief at 27. The statement is not documented and we have not found any evidence to support it. The accountants deny the truth of the statement in their brief and assert there is no evidence to support it. On such a record the court’s finding of liability for the architects’ breach of the agreement and award of damages for loss of use is justified. This total was in the sum of $12,587. The testimony on the basis of which computation was made was conflicting. We do not find that it was clearly erroneous.

Accountants also sought recovery for the cost of ceramic tile which was purchased for the building but never used. The tile belongs to the accountants and is in their possession. No evidence was offered to establish the present value so that any loss could be computed. The court was therefore correct in denying recovery for this item.

In a final effort to obtain relief, the architects argue that if they are unable to recover affirmatively against the accountants for the value of their services rendered on the contract, or in quantum meruit, then they should be permitted to offset accountants’ recovery in the amount the architects would have been entitled to recover had the contract been enforcible. Reliance is placed upon three California decisions to support this position.

Apart from the decisions, the basic difficulty with the architects’ position is that the court made no finding of any amount which they would have been entitled to recover had the contract been enforcible. They were employed to produce plans for the construction of a building approximating a certain cost. They failed to do so. Under those circumstances they would not have been permitted to recover anything under the contract. The California eases permitting offset were decided under a statute different from that which was in force in Alaska. Culbertson v. Cizek, 225 Cal.App.2d 451, 37 Cal.Rptr. 548, 560 (1964); Steinwinter v. Maxwell, 183 Cal.App.2d 34, 6 Cal.Rptr. 496 (1960); S & Q Construction Co. v. Palma Ceia Development Organization, 179 Cal.App. 2d 364, 3 Cal.Rptr. 690, 692 (1960). They were cases where a contractor, not an architect, was seeking equitable offset for work done. Accountants point out that the California statute requiring licensing of a contractor is one which is malum prohibitum and not malum in se. Steinwinter v. Maxwell, supra, 6 Cal. Rptr. at 499. In the present case a fine or imprisonment may be imposed upon an architect for violation of the licensing laws. Alaska’s statute is not simply prohibitory, but rather reflects a sufficiently grave policy against illegality which justifies denial of relief to the architects under the circumstances of this case.

The accountants claim for prejudgment interest was disallowed. Under the doctrine of State v. Phillips, 470 P.2d 266 (Alaska 1970), prejudgment interest should be awarded, “unless for some reason peculiar to an individual case such an award of interest would do an injustice.” 470 P.2d at 274. Here the court disallowed prejudgment interest. Among the court’s findings of fact was the finding that “[t]he delays in the prosecution of this suit are not chargeable to either party.” C.T. at 275. We do not find the court’s ruling with respect to prejudgment interest is clearly erroneous.

The judgment is affirmed.

      . “Registration required. It is unlawful for a person to practice or to offer to practice professional engineering or professional architecture in the state unless he is registered and licensed.” AS 08.48.150.
      There is also a statute which makes it a misdemeanor for an unauthorized person to practice professional architecture in the state. Either fine or imprisonment may be imposed. AS 08.48.400.

      . The trial judge stated in his memorandum and order that the accountants made no claim for a refund of $1,941.44 which constituted the amount paid by them to the architects as partial payment for architectural services. Among factors that are influential in determining whether restitution or some other judicial remedy will be granted to a party who has rendered part of an illegally bargained-for exchange are : “the degree of criminality or evil, the comparative innocence or guilt of the parties, the extent of public harm involved, the moral quality of the conduct of the parties, and the severity of the penalty or forfeiture that will result from refusal of relief.” 6A Corbin on Contracts § 1534' at 818; accord, Restatement of Restitution § 140.
      Following an evaluation of the factors in this case, we agree with the trial court’s conclusion that the equities are sufficiently satisfied by permitting the situation to remain as it is.


author: DAVIS, Judge:

text:
    UNITED STATES of America, Appellee, v. Angel DOMENECH, Appellant.
    No. 585, Docket 72-2258.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 15, 1973.
    Decided April 12, 1973.

      Alfred Lawrence Toombs, New York City, for appellant.
    John J. Kenney, Asst. U. S. Atty., S. D.N.Y. (Whitney North Seymour, Jr., U. S. Atty., John D. Gordan III, and John W. Nields, Jr., Asst. U. S. Attys., S.D. N.Y., of counsel), for appellee.
    Before FRIENDLY, Chief Judge, OAKES, Circuit Judge, and DAVIS, Judge.

       Of the United States Court of Claims, sitting by designation.

   DAVIS, Judge:

Appellant Angel Domenech was indicted, with co-defendants Morales and Pereira, for conspiring to distribute and possess with intent to distribute over 100 grams of heroin (count 1), and for the substantive offense of distributing and possessing the same amount of narcotics (count 2). Domenech was tried alone before a jury, acquitted of conspiracy but convicted of the substantive offense. He was sentenced as a young adult offender (18 U.S.C. § 4209) to treatment and supervision under 18 U.S.C. § 5010(b) until discharged under 18 U.S.C. § 5017(c). On this appeal he does not challenge the sufficiency of the evidence which it is unnecessary' to recite in detail. For present purposes, it is enough that there was proof that Domenech delivered in the presence of federal agents a wrapped package which turned out to contain heroin, and there was also evidence of prior separate discussions concerning a narcotics transaction between the agents and (i) Pereira and Domenech, (ii) Pereira and Morales, (iii) Pereira alone, and (iv) Domenech alone. Appellant and his wife presented exculpatory evidence to the effect that he knew nothing about any heroin transaction (he denied having had the conversations to which the agents had testified), he simply delivered the package on request as a favor, and thought it contained marijuana.

The first of the appeal points is that Pereira, appellant’s brother-in-law, who was summoned by the defense, should have been compelled by the court to testify even though he made it clear when first called that he would claim his privilege against self-incrimination. The trial judge excused him without requiring any questions to be put. Pereira, whom appellant assumed would be a helpful witness (see note 3, infra), had shortly before pleaded guilty to the conspiracy count but had not yet been sentenced (see note 1, supra); the second (substantive offense) count was still outstanding against him but was fully expected to be dismissed upon senteneing. Appellant’s contention is that the witness, having already pleaded guilty and been convicted, could no longer rely with justification on the Fifth Amendment privilege (cf. United States v. Gernie, 252 F.2d 664, 670 (2d Cir.), cert. denied, 356 U.S. 968, 78 S.Ct. 1006, 2 L.Ed.2d 1073 (1958); United States v. Romero, 249 F.2d 371, 375 (2d Cir. 1957)), and should have been directed to testify.

We hold, however, that the court below committed no error in excusing Pereira. There is some doubt, in the first place, whether appellant is in a position to complain since his counsel neither asked the judge to direct Pereira to answer questions or to rule that the privilege was improperly asserted. Counsel appeared to acquiesce in Pereira’s statement that he would not testify.

In any event, the claim of privilege was well-taken. Count 2 still remained open against Pereira and his testimony, whether or not it helped Domenech, could very well have further incriminated himself on that offense. Though it was very likely that count 2 would be dismissed, that had not yet occurred and Pereira can hardly be faulted for taking the most cautious position. Even on the conspiracy charge to which he had pleaded guilty, evidence compelled at Domenech’s trial could well hamper a possible attempt by the witness to withdraw his plea before sentence. See State v. Tyson, 43 N.J. 411, 204 A.2d 864, 866-867 (1964), cert. denied, 380 U.S. 987, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965). Moreover, under the existing precedents it was open to the State of New York to prosecute Pereira on the same heroin transaction (Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959)), and his Fifth Amendment privilege included a right against self-incrimination under the state penal laws. See Kastigar v. United States, 406 U.S. 441, 456-457, 92 S. Ct. 1653, 32 L.Ed.2d 212 (1972); United States v. Chandler, 380 F.2d 993, 997 (2d Cir., 1967). In short, if Pereira had refused a direct order to testify, a contempt judgment against him could not be allowed to stand since in no way would it be perfectly clear that the answers would not possibly incriminate. Hoffman v. United States, 341 U.S. 479, 488, 71 S.Ct. 814, 95 L.Ed. 1118 (1951); United States v. Chandler, supra.

Appellant urges that the Government deliberately left count 2 open against Pereira in order to insure that he would not testify for appellant. There is no adequate proof of this charge; leaving the remaining counts open until sentence on the counts to which an accused has pled is the common practice — a reasonable procedure which avoids complexities where the defendant moves before sentence to set aside his guilty plea. In this instance the possible consequence of following the normal usage was to give Pereira a good excuse for refusing to take the stand, and thus of avoiding the dilemma, on the one hand, of a possible perjury charge or a feared impact on his sentence if he testified favorably to Domenech, or, on the other, of giving evidence against his close relative. But we see no escape from holding that Pereira had a constitutional right to act as he did, and, in the absence of any proof of deliberate manipulation or pre-arrangement by the United States Attorney, there is no penalty we can or should impose on the Government because the witness’s exercise of his right, for his own purposes, may have redounded to the prosecutor’s advantage.

The second issue is whether the court below erred in giving the “Allen” charge when the jury reported itself in disagreement after some hours of deliberation. This court has consistently and recently upheld normal versions of the “Allen” instruction (see, e. g., United States v. Birrell, 447 F.2d 1168, 1173 (2d Cir., 1971), cert. denied, 404 U.S. 1025, 92 S.Ct. 675, 30 L.Ed. 675 (1972); United States v. Bowles, 428 F.2d 592, 595 (2d Cir.), cert. denied, 400 U.S. 928, 91 S.Ct. 193, 27 L.Ed.2d 188 (1970); United States v. Hynes, 424 F.2d 754 (2d Cir.), cert. denied, 399 U.S. 933, 90 S.Ct. 2270, 26 L.Ed.2d 804 (1970)) and we are of course bound by those rulings. There is no occasion to consider whether en banc reconsideration should now be had of this general area (see United States v. Martinez, 446 F.2d 118, 119-120 (2d Cir.) cert. denied, 404 U.S. 944, 92 S.Ct. 297, 30 L.Ed.2d 259 (1971)) since appellant did not, at the trial, challenge the “Allen” charge as such, but only a single one of the trial judge’s statements. The disputed sentences were: “This case, if the jury disagrees, will be retried. Another jury will be chosen from the same sources that you were and it will hear probably the same evidence.” Appellant attacks this remark on the ground that Pereira could be compelled to testify after his sentencing and that his evidence on a retrial would be materially different from the testimony introduced at the trial just completed. By-passing the point that Pereira might still be able to claim his privilege even after sentencing, particularly because of the possibility of state prosecution, see supra, the immediate answer is that a retrial would probably take place before Pereira’s sentencing; Morales, who failed to turn up for his joint trial with appellant but did appear later that day, was in fact tried a very few days later (see note 1, supra) and in all likelihood a retrial of Domenech would have been scheduled for the same time. In these circumstances, the challenged part of this “Allen” charge was not a misrepresentation, and though it is not to be commended for general use it does not appear in this instance to have been unfairly coercive.

On the morning on which the judge was to give his charge, one of the jurors was 10 minutes late; over a defense objection, the court replaced this absent juror with an alternate and then discharged the tardy juror when she appeared shortly after the charge was begun. This episode raises the third point on appeal. Given the current conditions of transportation in the City of New York, some other presiding officers might have waited a bit longer, but we certainly cannot say that the judge abused his discretion by insisting on going ahead after 10 minutes. Nor is there any basis for finding an undue impact on the jury either in the mere act of excusing the juror or in the way it was done. We would have to strain much too far to discern any bias or prejudice against the defendant in this episode.

Lastly, appellant complains of statements made by Pereira to the agents in Domenech’s absence which were admitted subject to connection. Although there was no specific later ruling by the trial court, appellant failed to move to strike the evidence at the close of the prosecution’s case, and took no exception to the charge which told the jury it could consider the testimony. This being so, we find no error. There was in fact ample independent evidence of Domenech’s connection with the conspiracy and, as the case comes to us, we must assume that the judge was satisfied of that connection, under the rule of United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir., 1969), cert. denied, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970). The status of the evidence aliunde is not vitiated by the fact that it came from the same federal agents who testified to the disputed declarations. There is no such disqualifying rule of law, and, especially in the light of the conviction on count 2, we cannot accede to appellant’s broadside contention that the jury’s acquittal on the conspiracy charge shows that it must have disbelieved everything the agents said on the stand.

The result is that neither singly nor in combination do the challenged acts of the trial court amount to reversible error.

Affirmed.

      . Pereira previously pleaded guilty to the conspiracy count (see infra) and Morales did not appear for the scheduled trial. He was tried a few days later and pleaded guilty to one count after that trial began.

      . This language apparently followed the charge sustained in United States v. Thomas, 282 F.2d 191, 195 (2d Cir., 1960), except that that instruction did not qualify “the same evidence” by “probably”.

      . When Pereira was interrogated by the same trial judge on his guilty plea, shortly before Domenech’s trial, he made statements which could be understood as tending to exculpate Domenech. In particular he denied the one overt act in the conspiracy count which referred to a conversation between Pereira and Domenech.

      . Since the case was scheduled to go to the jury that day, the trial court may have wanted to avoid, as much as possible, a night sitting. As it turned out, the verdict was not returned until 9 p. m.