author: JAMES HUNTER, III, Circuit Judge.

text:
    UNITED STATES of America v. Herbert Martin GIMELSTOB, Appellant in No. 72-1625, et al. Appeal of Victor FRIEDLANDER, in No. 72-1622. Appeal of Leonard SHERMAN, in No. 72-1623. Appeal of Joseph TREMARCO, in No. 72-1624.
    Nos. 72-1622 to 72-1625.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 7, 1972.
    Decided Feb. 21, 1973.

      Michael A. Querques, Querques, Isles & Weissbard, Orange, N. J., for Fried-lander.
    Yale Manoff, Weinberg & Manoff, Springfield, N. J., for Sherman.
    Myron P. Maurer, Maurer & Maurer, Newark, N. J., for Tremarco.
    Raymond A. Brown, Brown, Vogelman, Morris & Ashley, Jersey City, N. J., for Gimelstob.
    Herbert J. Stern, U. S. Atty., John J. Barry, James D. Fornari, Richard S. Zackin, Melvin Greenberg, William A. Carpenter, Asst. U. S. Attys., Newark, N. J., for appellee.
    Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges.
   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge.

The central element in this case was a conspiracy to steal certain tin ingots from a warehouse in Port Newark, New Jersey, in violation of 18 U.S.C. § 659.

There were four counts to an indictment which named appellants and other defendants not revelant to this ease. The charges relating to appellants are as follows: all four appellants were charged with violating 18 U.S.C. § 659 by conspiring to take, steal, and carry away goods in foreign commerce with the intent to convert these goods to their own use (Count I). They were also charged with violating § 659 by possessing goods which they knew to be stolen (Count III). Appellants Gimelstob and Tremarco alone were charged with assaulting, opposing, impeding and interfering with an FBI agent in violation of 18 U.S.C. § 111 (Count IV). After the district court granted appellant Gimbelstob’s motion for a judgment of acquittal as to the first violation of § 659, a jury found all appellants guilty as charged. Appellants present a plethora of purported errors, none of which require reversal. Having rejected them en masse, we will proceed to reject them seriatim. Facts will be developed when necessary.

I. THE SEIZURE OF THE STOLEN TIN

All four appellants contend that the FBI’s seizure of the stolen tin was improper because the affidavit supporting the search warrant was legally insufficient. The warrant in question met the standards set out by the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1968). Aguilar set up a two-pronged test to determine the sufficiency of a warrant which is based on tips from a confidential informer: (1) the warrant must show that the informer is credible, and (2) some of the underlying circumstances giving rise to the informer’s conclusions must be present. In this case, the warrant alleged that the informer relied upon had previously disclosed information leading to at least five convictions; and FBI surveillance provided sufficient corroboration for the informer’s conclusions. See Spinelli v. United States, supra at 417-418, 84 S.Ct. 1509. United States ex rel. Henderson v. Mazurkiewicz, 443 F.2d 1135 (3d Cir. 1971); United States v. Singleton, 439 F.2d 381 (3d Cir. 1971); United States ex rel. Kislin v. State of New Jersey, 429 F.2d 950 (3d Cir. 1970). Only a probability of criminal activity is necessary for there to be probable cause, see, e.g., Spinelli v. United States, supra, 393 U.S. at 419, 84 S.Ct. 1509, and here the affidavit for the search warrant showed such a probability.

II. IMPROPER JOINDER

Appellants Sherman and Friedlander argue that it was improper under Rule 8 of the Federal Rules of Criminal Procedure to join the charges against appellants Tremarco and Gimelstob for assaulting an FBI agent with the charges against them on the conspiracy counts. In the alternative, they argue that if joinder was permissible, a severance under Rule 14, Fed.R.Crim.Proc., should have been granted. There is no merit in these arguments. The assault on the FBI agent was clearly related to the conspiracy charges, and Rule 8(b), Fed.R.Crim.Proc., does not require that each defendant be named in each count, so long as the offenses are related. See 8 Moore’s Federal Practice, § 8.06 [2] (Cipes ed. 1972). I Wright, Federal Practice and Procedure, § 144 (1969).

Nor was it improper for the district court to deny appellants’ motion for severance under Rule 14. This motion is addressed to the discretion of the trial court, and appellants have not demonstrated the type of prejudice necessary for us to say that the district court abused its discretion. See 8 Moore’s Federal Practice, supra § 14.02 [1]. I Wright, Federal Practice and Procedure, supra § 227.

III. TESTIMONY OF THREATS TO A WITNESS

A government witness who had been involved in the conspiracy testified that he had been threatened with harm by appellant Friedlander if he were to talk. The witness testified that Friedlander did not state the exact nature of the harm that would' occur, but that the witness understood, from previous conversations with Friedlander, that Friedlander meant that he would be killed. In fact, an attempt was made on the life of the witness, allegedly by appellant Tremarco. However, this attempt was not disclosed to the jury.

Appellants Friedlander, Sherman, and Tremarco agree that testimony of the threat itself was properly admitted, but contend that the district court should not have allowed the witness to explain the nature of the harm that would come to him. On the basis of this testimony and an aborted question, they further argue that the jury was able to infer that the attempt on the life of the witness had been made. They present no authority for this argument.

There is no merit in the contention. The statements as to the kind of harm were relevant to the precise nature of the threats and also tended to establish Friedlander’s guilt. This testimony plus the unfinished question do not lead to the inference that appellants claim that the jury made. Additionally, at that time the district court instructed the jury to disregard the fragment of the question asked and in his jury charge gave a general instruction for them to disregard everything he had previously excluded.

IV. ADMISSIBILITY OF A CARD SEIZED FROM TREMARCO

FBI agents seized a card from appellant Tremarco’s wallet upon his arrest. This card contained various phone numbers, including two unlisted numbers of appellant Gimelstob. Tremarco now claims that this card was improperly seized because the government failed to establish that at the time of its seizure there was a probability that it. could be evidence leading to a conviction or an apprehension of others. Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

Admission of the card was not error. It was logical for the FBI to believe that the phone numbers on the card could disclose further participants in the conspiracy or show a connection between Tremarco and the other defendants. And furthermore, this argument seems “much ado about nothing” since the card is of absolute minimal importance. Its lack of significance combined with the weight of the government’s evidence leads us to the conclusion that any error in its admission would clearly be harmless beyond a reasonable doubt under the Supreme Court’s test in Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

V. “MUG SHOT” OF TREMARCO

Appellant Tremarco contends that it was improper for the district court to allow a “mug shot” (screened to hide identifying marks) into evidence against him. He claims that this impermissibly placed his prior criminal record before the jury. He relied on Barnes v. United States, 124 U.S.App.D.C. 318, 365 F.2d 509 (1966), but that case is distinguishable from his. Our task is to decide whether the district court properly determined that the probative value of the mug shot outweighed whatever prejudicial effects that it had. E. g., Hines v. United States, 470 F.2d 225 (3d Cir. 1972).

In Barnes, there was an in-court identification. No mention of a photographic identification was made on direct examination. Defense counsel chose not to argue to the court that the identification procedures violated Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1969), but, instead, he cross-examined the witness concerning a pretrial photographic identification. While “photographs” were mentioned freely, there was no description of them as “mug shots.”

On redirect examination, the government attorney introduced into evidence two photographs of Barnes which the witness had viewed. While one was a normal snapshot, another was a mug shot. There was tape over the prison numbers on the photograph, and the trial judge emphasized that it covered something detrimental by commenting to the jury that he feared that one of them might inadvertently remove it and see the markings. The court held that the introduction of this “mug shot” improperly placed the defendant’s prior criminal record before the jury even though it was the defense who had first brought out the photographic identification. The court emphasized that the prosecutor could have buttressed the testimony of his witness on redirect examination by introducing solely the snapshot and thus avoiding the prejudice inherent in introducing the mug shot. Furthermore, it does not appear that the defense inquiry in Barnes focused on the appearance of the appellant in pictures which the witness was shown. It instead concentrated on the fact that the identifying witness had been shown only pictures of appellant.

There are similarities to Barnes in this case. An FBI agent made an in-court identification of appellant on direct examination, and no mention of photographs was made. He testified that he had seen appellant near the garage to which the stolen tin had been transported. There was no attempt to suppress the agent’s identification, and on cross-examination the defense attorney brought out the fact that the witness had made a previous photographic identification of appellant. The attorney was particularly concerned with how appellant was dressed, both at the time he was seen by the agent and in the photograph that was shown to the agent. He was attempting to prove that the agent had identified appellant only because appellant had a white tee shirt on in his picture and because the man the agent had seen at the garage also had a white tee shirt on. The following line of questioning occurred:

“Q. In this photograph was he wearing a white undershirt ?
“A No sir, not that I recall.
“Q Do you remember what he was wearing in the photograph?
“A As I recall it was a facial photograph. It was not a photograph of an entire person.
“Q Did it have his shoulders showing?
“A Not that I recall, no, sir.
“Q Just from the chin up, the neck?
“A No, from the chest area. It was a mug-type photograph. [Emphasis added].
“Q Yes, so that from the chest up you would see his shoulders ?
“A Yes, sir.
“Q And if he wore a white undershirt that would be shown clearly in the photograph, would it not ?
“A Yes, sir.
“Q Because the shoulders would be bare, is that right?
“A Yes, sir.
“Q Do you recall whether he had a white undershirt on in that photograph ?
“A No, sir, I don’t.” (Appendix, 1237, 1238).

On redirect, the government was allowed to introduce the photograph of appellant into evidence. Although the masking of the identification marks was much less obtrusive in this case than it was in Barnes and the district court judge’s handling of the photographs must less prejudicial, there are other more significant differences between the cases.

The fact that the photograph viewed was a “mug-type” photograph was already before the jury in response to defense questioning. Since what was shown to the jury was a mug-type photograph, i. e., there were no prison numbers or other marks present, the jury knew no more than they had before as a result of the defense questioning. They already had been alerted by appellant that he had either been in trouble with the police or had had a prison record. Additionally, appellant’s attorney had left with the jury the agent’s statement that he was unsure how appellant had been dressed in the photograph. It was proper for the agent to show the jury that appellant had not been dressed in a tee shirt in the picture. United States v. Guinn, 454 F.2d 29, 37 (5th Cir. 1972). The government attorney did not have the ready alternative available to him that the government attorney had available in Barnes. The probative value of the picture here outweighed whatever prejudicial effects, if any, the introduction of the photograph involved. See Hines v. United States, supra; United States v. Frascone, 299 F.2d 824, 828, 829 (2d Cir. 1962).

VI. SUMMATION BY UNITED STATES ATTORNEY

Appellants Friedlander and Tremarco contend that certain remarks on summation by the government attorney amounted to an unconstitutional comment on their failure to take the witness stand in violation of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). After having examined the prosecutor’s statement and the defense summation argument which prompted it, we conclude that his comment cannot reasonably be so construed. See, e.g., United States v. Giuliano, 383 F.2d 30 (3d Cir. 1967); United States ex rel. Leak v. Follette, 418 F.2d 1266 (2d Cir. 1969), cert. denied, 397 U.S. 1050, 90 S.Ct. 1388, 25 L.Ed.2d 665 (1970). He very briefly addressed himself solely to the failure of appellant’s counsel to cross-examine a government witness on a certain issue. This and the fact that the government attorney’s remark was prompted by an attack on his witness’s credibility by defense counsel in summation both serve to distinguish this present ease from the First Circuit’s decisions in United States v. Flannery, 451 F.2d 880 (1st Cir. 1971) and Desmond v. United States, 345 F.2d 225 (1st Cir. 1965). See United States v. Giuliano, supra, 383 F.2d at 35.

VII. JURY CHARGE AS TO POSSESSION AND GUILTY KNOWLEDGE

Appellants Tremarco and Gimelstob contend that the district court erred in its charge to the jury on the issue of constructive possession relevant to Count III of the indictment which charged appellants with possession of property stolen from interstate commerce. After having examined the charge of the court in its entirety, we are convinced that there was no error.

Tremarco and Gimelstob also argue that there was insufficient evidence to convict them on this count. Since there was sufficient evidence to convict them under 18 U.S.C. § 2 as aiding and abetting an offense we do not have to consider this claim. See Long v. United States, 124 U.S.App.D.C. 14, 360 F.2d 829, 835 (1966) (Burger, J.); United States v. Minieri, 303 F.2d 550, 557 (2d Cir. 1962).

VIII. JURY CHARGE AS TO 18 U.S. C. § 111

Appellants Tremarco and Gimbelstob claim that the district court was incorrect to refuse to charge that under 18 U.S.C. § 111, It is necessary for the actor to know that the person interfered with was a federal officer.

We have held that such knowledge is not necessary for a person to be convicted under § 111. United States v. Goodwin, 440 F.2d 1152 (3d Cir. 1971). Accord, e.g., United States v. Ulan, 421 F.2d 787 (2d Cir. 1970); United States v. McGough, 410 F.2d 458 (4th Cir. 1969); United States v. Marcello, 423 F.2d 993, 1010 (5th Cir.), cert. denied, 398 U.S. 959, 90 S.Ct. 2172, 26 L.Ed.2d 543 (1970); United States v. Leach, 429 F.2d 956, 959 (8th Cir. 1970); United States v. Kartman, 417 F.2d 893 (9th Cir. 1969).

Appellant Gimelstob also argues that the district court defined assault incorrectly in its charge. However, we do not have to consider that question since there was ample evidence that the agent in this case was forcibly opposed, impeded, and interfered with. Therefore the conviction must be affirmed since “the general rule is that when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive . . . the verdict stands if the evidence is sufficient with respect to any one of the acts charged.” Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 654, 24 L.Ed.2d 610 (1970).

IX. EFFECT OF GIMELSTOB’S ACQUITTAL

The district court granted appellant Gimelstob’s motion for a judgment of acquittal as to the charge that he had conspired to steal, take, or carry away tin from foreign commerce. Gimelstob now argues that the jury should have been instructed of this fact since otherwise it would use evidence on that ground against appellant when it considered the other charges against him. He also contends that the district court should have marshalled and segregated the evidence as to him in its charge.

This circuit had held that it is necessary to object at trial to the district court’s failure to marshall evidence against an appellant. United States v. Kenny, 462 F.2d 1205, 1228, 1229 (3d Cir. 1972). Accord, United States v. Armone, 363 F.2d 385 (2d Cir. 1966). Since appellant did not object at trial, he cannot raise this argument in the absence of plain error. Rule 52(b), Fed. R.Crim.Proe. Under the circumstances of this case, we do not think that such error, if any, existed. Compare United States v. Kelly, 349 F.2d 720, 758, 759 (2d Cir. 1965).

The district court instructed the jury that Gimelstob had been severed (instead of acquitted) as to Count I. Appellant’s contention that instead it should have said he was acquitted is unsupported by legal authority, and we dismiss it.

X. JURY CHARGE AS TO CREDIBILITY OF WITNESSES

All appellants except Gimelstob contend that the district court’s jury charge was unfair because it had the effect of taking away appellants’ presumption of innocence. After examining the district court’s charge as a whole, we can state that it was eminently fair. Its charge was not at all similar to the one in United States v. Garza, 426 F.2d 949, 954 (5th Cir. 1970) upon which appellants rely.

XI. SUFFICIENCY OF EVIDENCE

Appellants Friedlander, Sherman and Tremareo contend that the government did not prove that they were part of a conspiracy to carry away tin from foreign commerce, as charged in Count I of the indictment. Apparently, they argue that since the government did not demonstrate that they actually participated in the physical removal of the tin, they could not be proven guilty.

Viewing the evidence in a light most favorable to the government, we are convinced that it did establish that appellants were part of a continuing conspiracy to carry away and distribute the tin. See United States v. McGann, 431 F.2d 1104 (5th Cir. 1970), cert. denied 401 U.S. 919, 91 S.Ct. 904, 27 L.Ed.2d 821 (1971); Nassif v. United States, 370 F.2d 147 (7th Cir. 1966). While once a conspiracy has been established only slight evidence is necessary to support a jury verdict that an individual defendant was a member, see, e. g., United States v. Kenny, supra, 462 F.2d at 1226, there was a great deal of evidence to support the involvement of appellants in this case.

XII. FOREIGN COMMERCE

All of the appellants contend that the government did not establish that the tin was in foreign commerce at the time it was stolen. This contention also must fall. On this issue, each case must be evaluated on its own particular facts. In reaching a determination on whether an item is still within foreign commerce at a given time, one must examine the relationship between the consignee, the consignor, the carrier, the indicia of foreign commerce at the time of the theft and the congressional intent. See United States v. Cousins, 427 F.2d 382, 385 (9th Cir. 1970); United States v. Maddox, 394 F.2d 297 (4th Cir. 1968). The evidence showed that although the tin had reached port and been unloaded to a warehouse, it was still being held by the shipper under the original bills of lading. “An interstate or foreign shipment does not lose its characteristic until it arrives at its final destination and is there delivered.” United States v. Yoppolo, 435 F.2d 625, 626 (6th Cir. 1970). Here, where the tin had not yet been picked up and was still being held by the shipper under its original bills of lading, delivery had not yet occurred.

Appellants Friedlander and Sherman also argue that the district court’s charge on this point was incorrect. This contention is also without merit.

The judgment of the district court will be affirmed.

      . Count II named a defendant not involved in this appeal.

      . The jury heard this sentence fragment: “Did there come a time when Victor Friedlander’s warning to you on August 31st ...” Appendix, 1805-1806.

      . We have, of course, not yet adopted Barnes v. United States, 124 U.S.App. D.C. 318, 365 F.2d 509 (1966), in this circuit.

      . The government attorney stated:
      “I have searched the record. If there is any question, ask the Judge to read it to you. At no time Harry Bogin was on that stand that Mr. Querques or any of the other defense counsel saw fit to cross-examine him on the threats. At no time. Those threats stand before you uncontroverted, unquestioned except in summation.” Appendix, pg. 3469.


source: Caselaw Access Project

author: ROBERT P. ANDERSON, Circuit Judge: ' OAKES, Circuit Judge

license: Public Domain

text:
    Anna MAHRAMAS, Plaintiff-Appellant, v. AMERICAN EXPORT ISBRANDTSEN LINES, INC., and House of Albert, Inc., Defendants-Appellees.
    No. 228, Docket 72-1456.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 14, 1972.
    Decided Feb. 22, 1973.

      Charles Sovel, New York City (Abraham E. Freedman, and Ned R. Phillips, New York City, on the brief), for plaintiff-appellant.
    Joseph T. Stearns, New York City (Haight, Gardner, Poor & Havens, New York City, on the brief), for defendantappellee, American Export Isbrandtsen Lines, Inc.
    William F. McNulty, New York City (Hanner, Onorato & Hogarty and Anthony J. McNulty, New York City, on the brief), for defendant-appellee House of Albert, Inc.
    Before KAUFMAN, ANDERSON and OAKES, Circuit Judges.
   ROBERT P. ANDERSON, Circuit Judge: '

On December 6, 1966 the defendant American Export Isbrandtsen Lines, Inc., (Export) and the defendant House of Albert, a partnership, entered into a contract under the terms of which the defendant House of Albert was granted a concession by Export to maintain, staff and operate the barber and beauty shops on Export’s three large passenger liners. During the life of the contract, one of them, the S.S. INDEPENDENCE, made a voyage to the Mediterranean and back between February 28, 1967 and May 4, 1967. The plaintiff, Anna Mahramas, a professional hairdresser, was at that time employed by House of Albert, and she was assigned to work in the beauty shop on the S.S. INDEPENDENCE on the Mediterranean cruise. While so employed on the vessel, the plaintiff was required to have seaman’s papers and sign ship’s articles, but she was hired and paid solely by House of Albert as called for by the contract, and took orders only from House of Albert’s supervisor on the ship. There was an informal understanding that Export, as the shipowner, would furnish the plaintiff and other employees of House of Albert who were on the ship, subsistence and quarters.

The plaintiff shared a cabin with another beauty shop employee, and used the upper of the two berths in the cabin, to which access was gained by a ladder. It is the plaintiff’s claim that on March 11, 1967, as she started up the ladder to her upper berth, the bottom step gave way; as a result she struck her face against the side of the ladder and fell to the floor of the cabin, straining her lower back.

She brought this action on November 21, 1967 under the Jones Act and under the general maritime law of unseaworthiness, maintenance and cure, and negligence for damages arising out of her shipboard injury. Because of the Jones Act allegations, a jury was impaneled which heard the entire case, but when, at the conclusion of the evidence the trial court dismissed the Jones Act claims, it also discharged the jury and, as there was no diversity of citizenship, decided the remaining admiralty issues itself.

The plaintiff testified that, following the accident, she told her roommate, whose name was Rabar, about the broken ladder and that Rabar said she would get the repair man to fix it for her. The plaintiff did not report the accident or the broken ladder to any of the officers or crew, but said she told everyone in the beauty shop. Sixteen days later she sought medical attention at the dispensary and the surgeon noted she had capped teeth and diagnosed her trouble as neuralgia and prescribed penicillin. She said she told the surgeon she had suffered an accident, but no such thing was recorded by the surgeon. On April 5, 1967 and again on April 30, 1967, the pain in her jaw was diagnosed as diseased roots of her teeth and she was given penicillin; the surgeon’s log, however, makes no reference to an accident or back pains.

She worked every day throughout the voyage. After her return on May 4, 1967 she was treated by two dentists for an infection in her teeth. On June 9, 1967 she had outpatient treatment in the surgery clinic at the United States Public Health Service Hospital on Staten Island for diarrhea, resulting from antibiotics given her for the infected teeth. June 13, 1967, the surgery clinic found her fit for duty. Thereafter she made a last voyage for House of Albert, during August, on another ship.

She complained of back pain for the first time when she returned to the surgery clinic on September 22, 1967 but she denied having had any injury to her back. She returned there twice in the early part of October for difficulty in swallowing and for lower abdominal pain. She again went there on October 17th for abdominal pain and attended the orthopedic clinic which descxúbed her symptoms as a gradual onset of lumbosacral pain and pain in knee and fingers. It was at that time that she first made mention of what the medical record described as a “vague [history] of trauma, March 1967, when she tripped on a step aboard ship and struck her face.” From then on until she commenced the action on November 21, 1967 she made several more visits to the Public Health Hospital for removal of a scar from her knee, lower abdominal pain and swallowing difficulty. On November 24, 1967 she visited the orthopedic clinic where she represented that her back pain had gone away.

The plaintiff’s roommate, Rabar, testified that the plaintiff never mentioned having an accident on the ship or that there was a broken step on the ladder; and Rabar said she never asked anyone to fix the ladder.

Plaintiff, in rebuttal, offered the testimony of one Caparones, another House of Albert employee on the ship, who said the plaintiff had told him she had hurt her jaw when she fell in her stateroom because a ladder was broken. Previously, however, he had said she had not told him how the accident occurred, and he had never'heard about or seen any broken step in her cabin. Outside of the plaintiff’s own testimony, there was no evidence of a broken ladder step or of any accident befalling the plaintiff.

The court dismissed the Jones Act and maintenance and cure claims against Export because it was not the plaintiff’s employer and against House of Albert because it did not own or control the ship. The court then found against the plaintiff on the unseaworthiness and genei’al negligence claims, because she “failed to show by a fair preponderance of the evidence that the accident occurred as she has testified.”

We affirm the judgments of the district court, though on somewhat different legal bases from those relied on by the court below.

This case raises important questions concerning the proper pax'ties to the various admiralty causes of action in an unusual context, that is, one where a plaintiff-employee is injured aboard a ship but is not employed by the shipowner and is not covered by the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (Compensation Act).

At the outset, it should be noted that there is no question raised concerning the propriety of the plaintiff’s actions against the shipowner for unseaworthiness and general negligence. The duty to provide a seaworthy ship extends not only to the owner’s employees but to all “who perform the ship’s service . . with his consent or by his arrangement,” Seas Shipping Co. v. Sieracki, 328 U.S. 85, 95, 66 S.Ct. 872, 877, 90 L.Ed. 1099 (1946). Furthermore, under maritime law, the owner of the ship owes a duty of reasonable care “to all who are on board for purposes not inimical to [the shipowner’s] legitimate interests,” Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S.Ct. 406, 410, 3 L.Ed.2d 550 (1959), and, of course, the owner’s employees cannot be held to be fellow servants of third-party employees, Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 413, 74 S.Ct. 202, 98 L.Ed. 143 (1953), and assumption of risk is no defense in any admiralty action, The Arizona v. Anelich, 298 U.S. 110, 122-123, 56 S.Ct. 707, 80 L.Ed. 1075 (1936); Rivera v. Farrell Lines, Inc., 474 F.2d 255, 257 (2 Cir. 1973) n.1.

The primary questions raised on this appeal, however, go to the proper parties for the purposes of the Jones Act and maintenance and cure. While the origins of those actions, their mode of trial, and the bases and measures of recovery under them are all quite different, the parties to both of these actions are the same — a plaintiff seaman against his employer. The Supreme Court has pointed out that both causes of action depend upon the same relationship between the parties, Fink v. Shepard Steamship Co., 337 U.S. 810, 815, 69 S.Ct. 1330, 93 L.Ed. 1709 (1949), and that the Jones Act, where there is negligence, supplements the remedy of maintenance and cure, O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 43, 63 S.Ct. 488, 87 L.Ed. 596 (1943). Furthermore, the employer may be liable under the Jones Act for negligent failure to provide his employees maintenance and cure, Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368 (1932); Fitzgerald v. A. L. Burbank & Co., 451 F.2d 670, 679 (2 Cir. 1971). Therefore, in determining whether or not a person is a proper party plaintiff or defendant, the Jones Act and maintenance and cure cases may be read interchangeably, Weiss v. Central R.R., 235 F.2d 309, 311 (2 Cir. 1956); Haskins v. Point Towing Co., 421 F.2d 532, 536 (3 Cir.), cert. denied 400 U.S. 834, 91 S.Ct. 68, 27 L.Ed.2d 66 (1970); cf. Braen v. Pfeifer Oil Transportation Co., 361 U.S. 129, 132-133, 80 S.Ct. 247, 4 L.Ed.2d 191 (1959).

Although Mrs. Mahramas was not performing any of the historic functions of a ship’s crew, there is no question that she- was a seaman at the time of her alleged injury and is therefore a proper party plaintiff. The remedies afforded by the Jones Act and maintenance and cure are designed to protect those who perform services upon ships and are exposed to the unique hazards of work upon the sea, Aguilar v. Standard Oil Co., 318 U.S. 724, 727, 63 S.Ct. 930, 87 L.Ed. 1107 (1943); Warner v. Goltra, 293 U.S. 155, 156, 55 S.Ct. 46, 79 L.Ed. 254 (1934), and therefore the benefits should be available to anyone so engaged, even if not in the employ of the ship itself. In Gerradin v. United Fruit Co., 60 F.2d 927 (2 Cir.), cert. denied, 287 U.S. 642, 53 S.Ct. 92, 77 L.Ed. 556 (1932), this court read the Jones Act in pari materia with 46 U.S. C. § 713 which provides that any person “who shall be employed or engaged to serve in any capacity on board [any vessel belonging to a United States citizen] shall be deemed and taken to be a ‘seaman’ . . .” See also, Uravic v. Jarka Co., 282 U.S. 234, 239, 51 S.Ct. 111, 75 L.Ed. 312 (1931); Gahagan Construction Corp. v. Armao, 165 F.2d 301, 305 (1 Cir.), cert. denied, 333 U.S. 876, 68 S.Ct. 905, 92 L.Ed. 1152 (1948), cited with approval in Gianfala v. Texas Co., 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775 (1955).

The courts have long given seamen status to those performing tasks not necessary to the actual navigation of the ship, Warren v. United States, 340 U.S. 523, 71 S.Ct. 432, 95 L.Ed. 503 (1951) (messman); United States v. Atlantic Transport Co., 188 F. 42 (2 Cir.), cert. denied 223 U.S. 724, 32 S.Ct. 525, 56 L.Ed. 631 (1911) (horsemen); The J. S. Warden, 175 F. 314 (S.D.N.Y.1910) (bartender); The Sea Lark, 14 F.2d 201 (W.D.Wash.1926) (musician), and we, therefore, adhere to the test in Gerradin, supra, and hold that the plaintiff, Mrs. Mahramas, was a seaman entitled to the benefits of the Jones Act and maintenance and cure because she was engaged in employment on board a ship.

There has never been any question that the Jones Act applies only between employees and their employers, Moragne v. States Marine Lines, Inc., 398 U.S. 375, 394, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970); Panama R.R. v. Johnson, 264 U.S. 375, 387-388, 44 S.Ct. 391, 68 L.Ed. 748 (1924); Fitzgerald, supra, 451 F.2d at 674, and the Supreme Court made explicit in Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 791, 69 S.Ct. 1317, 93 L.Ed. 1692 (1949), that only one person, be it an individual or a corporation, could be sued as the employer. But Mrs. Mahramas’ right under the Jones Act does not extend, as she argues, to the shipowner as well. An action for maintenance and cure can also be maintained only against the employer because the right arises out of and is implied in the contract of employment, Aguilar, supra, 318 U.S. at 730, 63 S.Ct. 930; Calmar Steamship Corp. v. Taylor, 303 U.S. 525, 527, 58 S.Ct. 651, 82 L.Ed. 993 (1938); Cortes, supra, 287 U.S. at 371, 53 S.Ct. 173; Bartholomew v. Universe Tankships, Inc., 279 F.2d 911, 914 (2 Cir. 1960).

The House of Albert, although admitting that it was Mrs. Mahramas’ employer, claims that she has no cause of action against it because it is not a shipowner-employer. The court below took this position, and some of the cases appear to furnish support for it, see, e. g., Case v. St. Paul Fire & Marine Ins. Co., 324 F.Supp. 352, 353 (E.D.La.1971), dismissed on other grounds, 456 F.2d 252 (5 Cir.1972). It also seems to be suggested by some of the commentators, see, e. g., G. Gilmore and C. Black, The Law of Admiralty, § 6-21, at 285 (1957), but this derives from the language of cases in which the shipowner was the employer and there was no necessity for saying anything about situations in which the employer of a seaman was not a shipowner. Thus many of the cases use the term “shipowner” interchangeably with the term “employer”, but this is done only where the shipowner is the employer. Another difficulty, of course, is that very few seamen, relatively speaking, are in Mrs. Mahramas’ position, that is, not employed by the shipowner and not covered by the Compensation Act.

An employer, although not a shipowner, can still become liable to his employees under the admiralty laws where he has hired them to do maritime work, Sieracki, supra, 328 U.S. at 99-100, 66 S.Ct. 872. The Jones Act was often applied to actions by longshoremen against their stevedoring company employers, see, e. g., International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157 (1926), until such employees were given their sole remedy under the Compensation Act; and maintenance and cure has been awarded to a messman hired by a catering service to work aboard another’s ship, Sims v. Marine Catering Service, Inc., 217 F.Supp. 511 (D.La.1963). The reasoning, as explained in Haverty, supra, 272 U.S. at 52, 47 S.Ct. at 19, is that seamen should not be deprived of their remedies simply “with the accident of their being employed by a stevedore [or other independent contractor] rather than by the ship.”

In determining a seaman’s employer, a court must look to “the plain and rational meaning of employment and employer,” Cosmopolitan Shipping, supra, 337 U.S. at 791, 69 S.Ct. at 1321, which means that the right of control is one of the most important factors to consider, United States v. W. M. Webb, Inc., 397 U.S. 179, 192, 90 S.Ct. 850, 25 L.Ed.2d 207 (1970); Savard v. Marine Contracting, Inc., 471 F.2d 536, 540 (2 Cir. 1972). In Schiemann v. Grace Line, Inc., 269 F.2d 596 (2 Cir. 1959), this court dealt with the question of who was the employer for Jones Act purposes in a factual situation virtually paralleling this one. There a barber was hired by an independent contractor to work aboard a Grace Line ship. There, as here, the plaintiff was not only hired but also paid by the independent contractor and was to be considered his employee. In both cases, the seamen signed articles but were not responsible to the shipowner for working orders nor subject to the owner’s call to duty. This court held that the evidence was such that reasonable men could not differ from the conclusion that the barber was not the employee of the shipowner, and that therefore the trial court properly removed this issue from the jury.

In the present case as in Schiemann, supra, the House of Albert, an independent contractor, was clearly the employer; there was no evidence and no possibility of a reasonable inference to the contrary, and the question was properly taken from the jury and decided by the court, see also, Fitzgerald, supra, 451 F.2d 678-679; Bergan v. International Freighting Corp., 254 F.2d 231, 233 (2 Cir. 1958).

Therefore, Mrs. Mahramas’ claims under the Jones Act and for maintenance and cure were properly dismissed against the defendant Export, the shipowner, because it was not her employer, but the House of Albert was a proper party for the plaintiff to sue on these claims because it was her employer. On the merits of her Jones Act claim, however, she failed to prove any negligence on its part. The House of Albert moved for a directed verdict at the close of the plaintiff’s case and, because we can perceive no theory, nor is one presented by the plaintiff, upon which the House of Albert, its agents or its employees, could have been negligent in connection with the alleged accident, the motion was properly granted by the district court as to the Jones Act claim.

On the other hand, a seaman is entitled to maintenance and cure whenever he is disabled “in the service of the ship” no matter what the cause, The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760 (1903); Koslusky v. United States, 208 F.2d 957, 959 (2 Cir. 1953).

In the present case, however, even if it is assumed, arguendo, what she claims, that her injuries did arise in the service of the ship, the plaintiff offered no proof of loss, and therefore she cannot recover.

The duty to provide maintenance and cure is imposed “to safeguard the seaman from the danger of illness without succor,” but it “does not extend beyond the seaman’s need,” Calmar Steamship, supra, 303 U.S. at 531, 58 S.Ct. at 654. There is no evidence whatsoever that Mrs. Mahramas spent anything for her maintenance or living expenses, but instead she testified that she lived variously with her brothers, her sisters, and her husband in locations in New York, Pennsylvania, and West Virginia and even received unemployment compensation for a period of time. As far as her medical expenses or “cure”, she received most of her treatment at a public service hospital and there is no evidence that she had any out-of-pocket medical expenses. The fact that she never sought maintenance and cure until she instituted this suit, some nine months after the alleged accident, is further indication that she was not suffering illness without aid. Therefore, because there was no proof on this essential element, the plaintiff is not entitled to recover maintenance and cure; and a directed verdict was required on that point as well, Johnson v. United States, 333 U.S. 46, 50, 68 S.Ct. 391, 92 L.Ed. 468 (1948); Stankiewicz v. United Fruit Steamship Corp., 229 F.2d 580, 581 (2 Cir. 1956); Robinson v. Isbrandtsen Co., 203 F.2d 514, 516 (2 Cir. 1953); Field v. Waterman S. S. Corp., 104 F.2d 849, 851 (5 Cir. 1939).

The appellant also argues under the doctine of Fitzgerald v. United States Lines, 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963), that the unseaworthiness and general negligence claims against Export should have been submitted to the jury instead of being decided by the court. Fitzgerald, supra, at 21, 83 S.Ct. 1646, however, simply held that when a Jones Act claim was given to a jury, unseaworthiness and maintenance and cure claims arising out of the same set of circumstances must also go to the jury so that one trier of fact could determine the entire claim. In this case, there was no real Jones Act claim to go to the jury, and the trial court could, as it did, properly take for itself the determination of the remaining admiralty issues. If the rule were otherwise, any plaintiff could receive a jury trial on his admiralty claims simply by alleging a Jones Act count, whether or not he had any evidence to support it, and, of course, the time has still not come when one is entitled to a jury in every admiralty suit. See, Romero v. International Terminal Operating Co., 358 U.S. 354, 359-380, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959).

The judgments are affirmed.

OAKES, Circuit Judge

(dissenting):

The majority has to rely heavily upon Schiemann v. Grace Line, Inc., 269 F.2d 596 (2nd Cir. 1959) (2-1 decision), to reach the result that a shipowner is not responsible to a seaman under the Jones Act if the seaman is also the employee of a ship concessionaire. I think that Sehiemann was erroneously decided, and because it overlooked Supreme Court precedent is not binding upon us. I also think that the result reached by the majority is an unfortunate one that would pave the way for shipowners to contract out ship functions to concessionaires— for example, for providing food to passengers or crew — and thereby to avoid or minimize liability for defective conditions or other negligence on board the ship.

I start with the proposition — conceded by the majority — that a beautician on a cruise ship is a seaman, just as are cooks, mess men, muleteers, bartenders, musicians, telephone operators, laundresses, and even barbers (Schiemann, supra) when they are performing services that render the ship’s voyage economically viable. A cruise ship which tried to attract female passengers without providing hairdressing services would soon be converted to duty as a cargo vessel.

The question is, then, whether a shipowner is liable to a seaman under the Jones Act because of the latter's status qua seaman or whether the test of “employment” used in railroad cases decided under the FELA is determinative. The majority in Sehiemann adopted the FELA test without mentioning the seaman’s status at all. It did so despite Desper v. Starved Rock Ferry Co., 342 U.S. 187, 190, 72 S.Ct. 216, 218, 96 L.Ed. 205 (1952), which held that “Seamen were given the rights of railway employees by the Jones Act, but the definition of ‘seaman’ was never made dependent on the meaning of ‘employee’ as used in legislation applicable to railroads.” Cf. United States v. W. M. Webb, Inc., 397 U.S. 179, 90 S.Ct. 850, 25 L.Ed.2d 207 (1970) (status of captains and crews under PICA and FUTA must be determined by maritime law standards, not usual common law rules). So too Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 372, 53 S.Ct. 173, 174, 77 L.Ed. 368 (1932) (Cardozo, J.), in holding that negligent failure to extend maintenance and cure to a seaman gave rise to a cause of action under the Jones Act, says: “The duty [of maintenance and cure] ... is one annexed by law to a relation, and annexed as an inseparable incident without heed to any expression of the will of the contracting parties.” The Court went on to say, in language pertinent to this case: “We do not read the act for the relief of seamen as expressing the will of Congress that only the same defaults imposing liability upon carriers by rail shall impose liability upon carriers by water. The conditions at sea differ widely from those on land, and the diversity of conditions breeds diversity of duties.” 287 U.S. at 377, 53 S.Ct. at 176. In extending the duty to provide a seaworthy ship to longshoremen in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), the Court referred to historical “notions of status,” 328 U.S. at 91, 66 S.Ct. 872, in rejecting the argument that a shipowner’s duty is limited to those with whom he has a contract for work, and, id. at 97, 66 S.Ct. 872, 878, quoted approvingly the statement of the court below that:

“It seems, therefore, that when a man is performing a function essential to maritime service on board a ship the fortuitous circumstances of his employment by the shipowner or a stevedoring contractor should not determine the measure of his rights. This is the very basis on which the Jones Act was held applicable to give redress to an injured stevedore in International Stevedoring Co. v. Haverty, [272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157 (1926)] . . . .” 149 F.2d 98, 101 (3rd Cir.)

Haverty did extend Jones Act coverage to stevedores and permitted suit against the stevedore company. Haverty showed that even very early in the history of the Jones Act the Court construed the scope of the Act broadly. Similarly in Seas Shipping, supra, a seaworthiness ease, the Court stated:

All the considerations which gave birth to the liability and have shaped its absolute character dictate that the owner should not be free to nullify it by parcelling out his operations to intermediary employers whose sole business is to take over portions of the ship’s work or by other devices which would strip the men performing its service of their historic protection.

328 U.S. at 95, 66 S.Ct. at 877 (emphasis supplied).

Of Jones Act liability, 46 U.S.C. § 688, the same may be said. Cf. Warner v. Goltra, 293 U.S. 155, 157-158, 55 S.Ct. 46, 79 L.Ed. 254 (1934) (Cardozo, J.); Cortes v. Baltimore Insular Line, Inc., supra. As Mr. Justice Black said for a unanimous Court in Garrett v. Moore-McCormack Co., 317 U.S. 239, 248, 63 S.Ct. 246, 252, 87 L.Ed. 239 (1942):

[The Jones Act] is to be liberally construed to carry out its full purpose, which was to enlarge admiralty’s protection to its wards .... Being an integral part of the maritime law, rights fashioned by it are to be implemented by admiralty rules not inconsistent with the Act . . . . (Citations omitted.)

Accord, Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 431, 59 S.Ct. 262, 83 L.Ed. 265 (1939).

It is true that even in Jones Act cases there are various dicta, including Mr. Justice Reed’s in Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 791, 69 S.Ct. 1317, 1322, 93 L.Ed. 1692 (1949) (general agent for owner of ship not liable under Jones Act) to the effect that “ . . . under the Jones Act only one person, firm or corporation can be sued as employer.” With the exception of Schiemann, however, none is in the context of a seaman employed on a ship who is seeking recovery against the shipowner even while he is employed by someone else. In none of those cases, as in Schiemann and this ease, did the shipowner escape responsibility for the seaman’s injury. The only question in those cases was whether an additional defendant was available.

Schiemann mentions none of the Supreme Court cases previously alluded to Desper, Cortes, Seas Shipping, Haverty. Rather, it tracks the railroad cases which involve different underlying common law concepts. Even so, at ordinary common law a person may be the servant of two masters at one time as to one act, if the service to one does not involve abandonment of the service to the other. Restatement (Second) of Agency § 226 (1957). One doubts whether today’s Court facing the problem afresh would decide the lead case on which Schiemann rests, 269 F.2d at 598, Robinson v. Baltimore & Ohio Railroad, 237 U.S. 84, 35 S.Ct. 491, 59 L.Ed. 849 (1915) (Pullman car porter not entitled to FELA recovery against railroad company), as it was decided. Later judicial decisions recognize that the existence of an employee-employer relationship must be determined not technically but in light of the liberal purposes remedial social legislation is designed to serve and in the light of economic reality. E. g., United States v. W. M. Webb, Inc., supra, Rutherford Food Corp. v. McComb, 331 U.S. 722, 723-726, 729-730, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947). See also Cosmopolitan Shipping Co. v. McAllister, supra, 337 U.S. at 790-791, 69 S.Ct. 1317.

The argument made here does not mean that as between the concessionaire and the shipowner they may not contract that the former will save the latter harmless in situations in which the shipowner is held liable to the seaman under the Jones Act. It would mean, however, that by contract with the concessionaire the shipowner could not escape liability to a seaman for the shipowner’s negligence in failing to provide a safe bunk ladder, the claim made here. That liability would accrue in the words of the statute when the seaman suffers “personal injury in the.course of his employment . . . .” A seaman’s “course of employment” in the service of the ship includes using the ladder to his bunk to go to bed. Cf. Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 80 S.Ct. 173, 4 L.Ed.2d 142 (1959) (liability for deck accident aggravating tuberculosis); Hiltz v. Atlantic Refining Co., 151 F.2d 159, 160 (3rd Cir. 1945) (liability for improper cabin ventilation).

To construe the Jones Act as the majority does leaves a gaping hole in its coverage: those who are concededly seamen but hired by a concessionaire are not entitled to recovery under the Jones Act for the shipowner’s negligence; they cannot recover in the usual case against the concessionaire because, except in connection with the equipment or management of the concession, the concessionaire has nothing to be negligent about. They are not wards of the admiralty, they are orphans at sea, with the crumb of concessionaire’s liability for maintenance and cure, but without the bread-and-water sustenance of liability on the part of anyone for negligence under Jones Act principles. In my view such a result could not have been intended by a Congress which had in mind that, as Warner v. Goltra, supra, 293 U.S. at 159, 55 S.Ct. at 48, states, “An ancient evil was to be uprooted, and uprooted altogether. It was not to be left with fibers still clinging to the soil.” A seaman not to be able to recover under the Jones Act against the ship for the ship’s negligence? What hath Congress wrought?

      . The Jones Act, 46 U.S.C. § 688, in pertinent part, reads as follows:
      “Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in eases of personal injury to railway employees shall apply

      . The appellant challenges the sufficiency of the court’s findings of fact pursuant to F.R.Civ.P. 52(a), but, although the findings are brief, they fully state the basis of the court’s decision and are adequate compliance -with Rule 52(a), Lemelson v. Kellogg Co., 440 F.2d 986, 988 (2 Cir. 1971).

      . The Compensation Act is the exclusive remedy for an employee, not a member of the crew of a vessel, against his employer when an injury occurs “upon the navigable waters of the United States,” 33 U.S.C. §§ 902(4), 903(a). Because the injury in this case did not arise upon the navigable waters of the United States, the Act clearly does not apply to this plaintiff, see, Panama Agencies Co. v. Franco, 111 F.2d 263, 265 (5 Cir. 1940).

      . It should be noted, however, that effective November 26, 1972, employees covered by the Compensation Act may no longer bring an action against the shipowner for unseaworthiness, Pub.Law 92-576, § 18 (a).

      . The dissenting opinion assumes and complains that this decision deprives the plaintiff of any right to sue the shipowner for defective conditions or other negligence on board the ship and leaves her with only a right of action for the “crumb” of maintenance and cure. In saying this, however, it disregards the fact that she had the right to maintain and did maintain actions for unseaworthiness and general negligence against Export, which were decided adversely to her on the merits.

      . We do not read the dissent as disputing the need for an employer-employee relationship, but construe it as favoring the broadening of the definition of “employer”.

      . It could be argued that the obligation of maintenance and cure should fall upon the ship because it is only the shipowner, through the master, who can order the vessel into port for emergency medical care in extreme circumstances; however, the ship is required to exercise reasonable care for all those legitimately on board and we see no reason why an employer, not the owner, could not seek indemnification against the owner for any maintenance and cure that he became liable for because of the owner’s negligence. We question the continued validity of The Federal No. 2, 21 F.2d 313 (2 Cir. 1927), to the extent that it would prohibit such an indemnification, see Jones v. Waterman S.S. Corp., 155 F.2d 992, 1000 (3 Cir. 1946).

      . These authorities make it crystal clear that under the Jones Act the shipowner is not always the employer of every person given seaman status aboard the vessel as the dissent claims.

      . Signing ship’s articles makes a seaman subject to the rules and discipline of the ship, but this does not make him the ship’s employee, see Hull v. Philadelphia & R. Ry., 252 U.S. 475, 479-480, 40 S.Ct. 358, 64 L.Ed. 670 (1920).

      . Export provided House of Albert employees with their staterooms and retained full and exclusive control over these quarters ; therefore, House of Albert could not be held negligent for permitting any defects to exist there.

      . See generally Seas Shipping Co. v. Sieracki, 328 U.S. 85, 91, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). For specific occupations that have been held to be “seamen” in varying contexts see, e. g., The Sea Lark, 14 F.2d 201 (W.D.Wash.1926) (musicians); The Baron Napier, 249 F. 126 (4th Cir. 1918) (muleteers); United States v. Atlantic Transport Co., 188 F. 42 (2nd Cir.), cert. denied, 223 U.S. 724, 32 S.Ct. 525, 56 L.Ed. 631 (1911) (horsemen); Neville v. American Barge Line Co., 105 F.Supp. 408 (W.D.Pa.1952), aff’d, 218 F.2d 190 (3rd Cir. 1954) (laundresses); Agnew v. American President Lines, 73 F.Supp. 944, 951 (N.D.Cal.1947), rev’d in part on other grounds, 177 F.2d 107 (9th Cir.), cert. denied, 339 U.S. 951, 70 S.Ct. 838, 94 L.Ed. 1364 (1949) (barbers).

      . Compare Wells Fargo & Co. v. Taylor, 254 U.S. 175, 186-187, 41 S.Ct. 93, 65 L.Ed. 205 (1920), and Byrne v. Pennsylvania R. R., 262 F.2d 906 (3rd Cir.), cert. denied, 359 U.S. 960, 79 S.Ct. 798, 3 L.Ed.2d 766 (1959), with Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 376-378, 53 S.Ct. 173, 77 L.Ed. 368 (1932).

      . Apparently the status theory was not advanced in argument in Schiemann for Chief Judge Clark cast his dissent, 269 F.2d at 599, in terms of control or right to control. He argued that whether the concessionaire or shipowner had the right of control was a jury question, and while the same argument might be made here, I consider Sehiemann binding authority against it.

      . Desper held, however, that a person engaged in seasonal repairs on vessels “laid up for the winter” was not a seaman. 342 U.S. at 190-191, 72 S.Ct. 216.

      . Shortly after Haverty Congress passed the Longshoreman’s Act, 33 U.S.C. § 903 et seq., which replaced the Jones Act as the remedy for longshoremen against their employers. The provisions of the Longshoreman’s Act, of course, specifically incorporate the liberal provisions of the Jones Act such as elimination of assumption of risk and the fellow-servant rule. 33 U.S.C. § 905. They also provide very specific compensation for different types of disability. 33 U.S.C. § 908. Thus, while Congress repealed the result in Haverty with a new statute, it did not change the concept of. extending liberal protection to maritime workers which Haverty advanced.

      . While she retained rights to sue the shipowner for general negligence or for unseaworthiness and while as the majority suggests in footnote 5 these were decided against her, they were decided by the trial judge without the benefit of a trial by jury to which under the Jones Act she would have been entitled and subject, at least as regards her claim of general negligence, to the defenses that she had assumed the risk or had been injured as the result of negligence of a fellow servant.

      . The majority says in its footnote 8 that United States v. W. M. Webb, Inc., 397 U.S. 179, 192, 90 S.Ct. 850, 25 L.Ed.2d 207 (1970) and Savard v. Marine Contracting, Inc., 471 F.2d 536, 540 (2nd Cir. Dec. 26, 1972), make it “crystal clear that under the Jones Act the shipowner is not always the employer of every person given seaman status abroad the vessel.” In W. M. Webb, the Court said, however, that “. . . except where there is nearly total relinquishment of control through a bareboat, or demise, charter, the owner may nevertheless be considered, under maritime law, to have sufficient control to be charged with the duties of an employer.” 397 U.S. at 192, 90 S.Ct. at 856. Here there was neither a bareboat nor a demise charter. In Savard, while rejecting a request to charge that a seaman may have more than one employer for Jones Act purposes, the court held that the trial court properly charged the jury that the seaman there (a diver on a barge under bareboat charter) could be deemed the subagent of his direct employer which hired him as agent for the bareboat charterer and that “the jury could find that under the Jones Act Perini [the bare-boat charterer] was Savard’s employer if it had sufficient control of the operation.” 471 F.2d 541. Here surely Export had sufficient “control of the operation.”


author: JOHN R. BROWN, Chief Judge:

text:
    Faye BOLTON, Plaintiff-Appellee, v. The TRAVELERS INSURANCE COMPANY, Defendant-Appellant.
    No. 72-2568
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 9, 1973.

      Glynn Purtle, Wichita Falls, Tex., for defendant-appellant.
    Bob Wilson, Wichita Falls, Tex., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

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

   JOHN R. BROWN, Chief Judge:

This is a Texas diversity case. Desirous of deciding it with dispatch but worshipping accuracy more dearly than speed we awaited the decision of the Supreme Court of Texas in Latham v. Security Insurance Company of Hartford, Tex., 1972, 491 S.W.2d 100. The questions which this appeal presents which are deserving of serious consideration were dealt with frontally by the Texas high Court which laid down rules for their resolution. Nonetheless, we must still beat a hasty retreat from ignorance to speculation and determine whether we think the Texas Supreme Court would hold, under its second rule announced in Latham, that a party who voluntarily places himself within the Court’s jurisdiction shall be considered to have been “joined”. Believing that the Texas Court would so hold, we reverse the District Court’s dismissal for want of jurisdiction and remand for trial on the merits.

Appellee Bolton was injured within the course and scope of her employment by Walter Kidde & Co. Inc., Webber Aircraft. She filed her claim against Employer and Travelers with the Industrial Accident Board (IAB) of the state of Texas on June 28, 1971. Travelers notified the IAB that the “Charter Oak Fire Insurance Company” was the correct carrier. Travelers and Charter Oak, corporate 'pe.re et fil, shared common claims offices, officers, management and staffs. The IAB found that indeed, Charter Oak was the correct carrier and its award ordered the payment of over $17,000 in a lump sum as compensation for total permanent disability. Appellee Bolton, through her counsel, gave written notice of appeal to the IAB and the parties naming Employer and Charter Oak in the caption which was incorporated by reference in the body of the notice as “the final ruling — and award of * * * [IAB] * * * in the above styled and numbered cause — .” Counsel then filed suit to set aside the Board’s award naming only Travelers as a defendant with no mention of Charter Oak.

If suit is not filed within 20 days of the IAB’s award that award is final. The rule is harshly applied in Texas. Latham, supra, Richards v. Consolidated Underwriters, Tex.Civ.App., 1967, 411 S.W.2d 436, writ ref’d.; Mosqueda v. Home Indemnity Co., Tex.Civ.App., 1969, 443 S.W.2d 901, writ ref’d. n. r. e. (approved in Latham, supra). Very simply, 20 days means 20 days.

The Employee timely filed suit naming Travelers, hut not Charter Oak, in its appeal from the award. Travelers answer came 25 days after the date of the award — well before the date upon which it must appear and defend. F.R.Civ.P. 12. In its answer Travelers affirmatively stated that Charter Oak was the actual insurer and asked that it be substituted for Travelers as the proper defendant. Thus, Charter Oak did not file suit or become a party to a suit — or so the Appellee would have us hold — until sometime after the expiration of 20 days following the award of the IAB.

The Employee then moved for a dismissal, arguing that the District Court did not have jurisdiction of the award to her against Charter Oak because Charter Oak had not filed suit within 20 days and had not been named as a party to a suit filed within the same time period. Agreeing that Charter Oak had not appealed from the award from the Industrial Accident Board by bringing suit or being named as defendant and cross-claiming the District Court held that it had no jurisdiction over a suit between Charter Oak and plaintiff Bolton. Accordingly it dismissed the action for lack of jurisdiction.

In its appeal Charter Oak contended originally that (i) the question should be governed under the precepts of F.R.Civ.P. 1 insofar as it deals with liberal construction and treatment of procedural questions, and (ii) that the entire action which was before the IAB including all of its parties, came before the District Court upon the instigation of suit by any party.

On the first of these bases— though it could be argued forcefully if we had no guidance from Latham — we could now only summarily affirm the holding of the District Court. A statute of limitations cannot be ignored under the rubric of enlightened procedure.

As to the second, we would have been thrown into the thicket of controlling Texas decisions, several from Courts of Civil Appeals with the enigma flowing from the Supreme Court’s not allowing a writ of error. But all the brambles here are gone by virtue of the Texas Supreme Court’s decision in Latham, supra. The struggle there was how to reconcile the irreconcilable.

The opinion of Justice Reavley for a unanimous Court is a fine example of constructive judicial statesmanship. Instead of trying to reconcile the irreconcilable they have chosen — as they have a right and duty to do — the principles that ought to control and spelled them out in categorical fashion. It makes quite clear that parties before the Industrial Accident Board who are not parties to suit either as Plaintiff, Defendant, or by joinder within 20 days from the rendition of the award by the Board must— with one critical exception — accept as inevitable the finality of the IAB's award. This is clearly the import of the third rule as stated in Latham, supra.

However, Latham also specifies in Rule 2, supra, that “Defendants in a law suit to set aside an award of the Board shall have until their appearance date to join other parties who have been before the Board.” This means, of course, that parties can be brought before the District Court after the 20 day statute of limitations has run if they are brought in by a Defendant in an action to set aside the Board’s award.

In our Erie role we could just stop with Rule 2. But we think that behind Rule 2 was the Court’s feeling that this is obviously a sensible construction of the statute since any other would allow an employee to wait 19 days to sue one Defendant-insurer if it were his desire to keep a second insurer out of the litigation to thus lay the trap for increased benefits (see note 5, supra). The sued Defendant-insurer, who might have been happy with a partial compensation award, would of necessity have to give notice of appeal as to other insurers and then sue all other defendants without waiting to be sued itself in order to protect itself from paying a judgment which someone else should have paid. We think it is likewise sensible to hold that a party who voluntarily submits itself to the jurisdiction of the District Court and makes itself liable to all the obligations, disabilities, and control by the District Court, as would be one who is formally joined as a party by cross claim or impleader. F.R.Civ.P. 13 and 14, followed by the usual service of process, is before the Court within the meaning of Rule 2.

It is true that Charter Oak was not joined as a party by the defendant Travelers. But it was as certainly a party after making an appearance by counsel and suggesting a substitution of names as if it had been joined. Employee cannot seriously contend that Appellant-Charter Oak was not before the District Court. Since this appearance had all the effects of joinder and occurred before the appearance day (i. e. answer day) of Travelers — the time limit set by Rule 2, we think that the Texas Supreme Court would hold that Appellant Charter Oak had been “joined” by the Appellant Travelers within the required time.

With that conclusion we sound recall and send the case back to the District Court.

Reversed and remanded.

      . We do not mean to forescast the necessity of a full-blown trial. That decision is the initial prerogative of the District Court, and must abide the event.

      . Travelers and Charter Oak maintained a policy of not defending on the grounds that the wrong insurance company had been sued. Whether assureds or claimants are, as is sometimes boasted, “in good hands” it is refreshing to see “clean hands”.

      . No citation of authority is required to support the proposition that the substantive statute of limitations of the state of Texas controls. However, the time periods allowed for answer and appearance are as clearly procedural.

      . In their answer Defendant said:
      In reply to Paragraph IV of said Petition, this Defendant did not issue the policy of workmen’s compensation insurance, but same was issued by Charter Oak Fire Insurance Company who is also represented by the below named attorneys and does enter its appearance herein and agrees that the name of the Defendant can be changed to properly describe Charter Oak Fire Insurance Company as the carrier of said workmen’s compensation.

      . Counsel for both Travelers and Charter Oak were the same. See, F.R.Civ.P. 11 as to significance of counsel’s signature.

      . Whether the employee’s counsel purposed to catch the opposition napping, he did so. The result is not only that the total permanent lump sum award is final as to Charter Oak, but Employee and counsel reap the additional benefit of 12% penalties plus attorneys fees for non-payment of a final award. Vern.Tex.Rev.Civ.Stat. Ann. Art. 8307 (§ 5a).

      . We reject as spurious the contention of Appellee that Travelers was not before the Industrial Accident Board, and therefore has no standing to bring a third party — Charter Oak — into this litigation. Employee in. her original Notice of Injury and Claim filed with IAB specified Travelers as Employer’s insurer. Travelers continued to be named in form reports by the insurer to IAB and in documents in the Board’s file. It was not until February 14, 1972 that Charter Oak was stated to be the insurer. As stated above Charter Oak was plainly indicated as the insurer in the tabular form award of the IAB.

      . The conflicting cases are set out in our reproduction of the Court’s three rules, infra note 9.

      . As stated by the Texas Supreme Court, the question it faced in Latham, supra was, “[D]oes the filing of a suit against the injured employee by one insurer vacate the entire award of the Board and, in particular, that part of the award in favor of the employee ágainst a second insurer?” Answering in the negative, the Court set out three rules to govern this and similar situations.
      1. All parties to a suit brought by any party to set aside the Board’s award are before the court for all purposes previously presented to the Board. So far as any claim between those parties goes, the Board’s award is vacated. Zurich General Accident & Liability Co. v. Rodgers, 128 Tex. 313, 97 S.W.2d 674 (1936) ; New Amsterdam Casualty Co. v. Merrifield, 74 S.W.2d 185 (Tex.Civ.App.1934, no writ). Since all the parties were before the court, the result reached was correct in Southern Casualty Co. v. Fulkerson, 45 S.W.2d 152 (Tex.Comm.App.1932).
      2. It is not given to the party filing the lawsuit to determine who shall and who shall not be parties thereto. A party to the Board’s award may be willing to accept that award, but if he is brought to court by one of the other parties he may require the presence of third parties. For example, under the facts of Travelers Ins. Co. v. Fox, 364 S.W.2d 859 (Tex.Civ.App.1963, writ ref’d, n. r. e.), in order to protect against a double recovery, the insurance carrier must be permitted to make Fox a party in the lawsuit filed by Lewis to set aside the award. Hereafter, if the carrier fails to do so, he will risk a double recovery, since the holding in that case is now disapproved. Defendants in a lawsuit to set aside an award of the Board shall have until their appearance date to join other parties who have been before the Board.
      3. Those parties to the Board’s award who do not become parties to the suit to set it aside are entitled to stand on that award. Richards v. Consolidated Underwriters, 411 S.W.2d 436 (Tex.Civ.App.1967, writ ref’d), is reaffirmed. Mosqueda v. Home Indemnity Co., 443 S.W.2d 901 (Tex.Civ.App.1969, writ ref’d, n. r. e.) is approved. We disapprove the following: Maryland Casualty Co. v. Baker, 277 S.W. 204 (Tex.Civ.App.1925, writ ref’d); Texas Employers Ins. Ass’n v. Nitcholas, 328 S.W.2d 338 (Tex.Civ.App.1959, no writ); Industrial Accident Board v. Texas Employers Ins. Ass’n, 342 S.W. 2d 213 (Tex.Civ.App.1961, writ ref’d, n. r. e.).


author: KNOCH, Senior Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Stephen Allen NOVAK, Defendant-Appellant.
    No. 72-1393.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 16, 1972.
    Decided Feb. 26, 1973.
    Certiorari Denied June 4, 1973.
    See 93 S.Ct. 2759.

      Robert E. Sutton, Milwaukee, Wis., for defendant-appellant.
    John O. Olson, U. S. Atty., James M. Bablitch, Asst. U. S. Atty., Madison, Wis., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, ENOCH, Senior Circuit Judge, and FAIRCHILD, Circuit Judge.
   KNOCH, Senior Circuit Judge.

Defendant-appellant, Stephen Allen Novak, has taken this appeal from his conviction in a jury trial on a charge of failing to report for civilian work after being classified 1-0 (conscientious objector) by his Local Selective Service Board.

It is defendant’s view that he should have been classified IV-D (minister) having been ordained a Minister of Jehovah’s Witnesses, pursuant to the ordination ritual of that sect. He told the Board that he had become a Minister at the time of his baptism, apparently at the age of sixteen years.

It was undisputed that the Jehovah’s Witnesses is a “recognized” religion under the pertinent regulation in Title 32, Code of Federal Regulations § 1622.43. Defendant contends that he has fulfilled the further requirement of ordination in accordance with the ceremonial ritual or discipline of his Church.

Defendant asserts that the Board subjected him to religious discrimination because, while registrants in other religions need only present certificates of ordination from their superiors to satisfy the Board, defendant was obliged to submit to a hearing on the manner in which he practiced his ministry, the number of hours he devoted to it, the financial support he derived from it and the other secular employment in which he engaged, to determine whether the ministry was his regular and customary vocation, as required by § 1622.43.

He lays special stress on the testimony of one Board member, Edison Lereh, presented only to the Court and not to the jury, that he personally could not accept a boy of fifteen as a recognized minister and viewed defendant’s ordination, some two and one-half years prior to his Selective Service registration, as something other than equivalent to full ordination in some of the other religions, that he did not view a member of Jehovah’s Witnesses as a minister for purposes of Selective Service until he had attained the rank of a full fledged Pioneer by order of the Watchtower Bible and Tract Society headquarters in New York. The only certificate on file from the Watchtower indicated that defendant had been a Vacation ‘Pioneer during the period August 1 to 14, 1966.

Defendant argues that discrimination exists against Jehovah’s Witnesses because consideration was given to the source of his compensation, thus, he says, favoring wealthy churches which pay their ministers, relieving them of the need to seek secular employment.

Defendant’s position is that the jury should have been directed to render a verdict in his favor, but that, failing a directed verdict, the issue of religious discrimination should have been allowed to go to the jury.

As the District Judge said in his opinion on the issue of the lawfulness of the Board’s Order to report for civilian work at a hospital, it is the definition of “minister” by Congress, and as used in the regulations which must determine entitlement to a IV-D classification.

Title 32 C.F.R. § 1622.43 provides for classification IY-D for registrants who are regular or duly ordained ministers of religion as defined in § 16(g) of the Military Selective Service Act. The Act reads:

Section 16. When used in this act —* * * (g)(1) the term ‘duly ordained minister of religion’ means a person who has been ordained, in accordance with the ceremonial, ritual, or discipline of a church, religious sect, or organization established on the basis of a community of faith and belief, doctrines and practices of a religious character, to preach and to teach the doctrines of such church, sect, or organization and to administer the rites and ceremonies thereof in public worship, and who as his regular and customary vocation preaches and teaches the principles of religion and administers the ordinances of public worship as embodied in the creed or principles of such church, sect, or organization.
(2) The term “regular minister of religion” means one who as his customary vocation preaches and teaches the principles of religion of a church, a religious sect, or organization of which he is a member, without having been formally ordained as a minister of religion, and who is recognized by such church, sect, or organization as a regular minister.
(3) The term “regular or duly ordained minister of religion” does not include a person who irregularly or incidentally preaches and teaches the principles of religion of a church, or religious sect, or organization and does not include any person who may have been duly ordained a minister in accordance with the ceremonial, rite, or discipline of a church, religious sect or organization, but who does not regularly, as a vocation, teach and preach, the principles of religion and administer the ordinances of public worship as embodied in the creed or principles of his church, sect or organization, [emphasis added]

From the outset while claiming exemption as a minister, the defendant himself provided data that raised doubts of the ministry as his regular and customary vocation. He clearly indicated that the time which he devoted to his religious work was small compared to the time he devoted to his commercial employment.

We cannot accept defendant’s assertions that an unfavorable comparison was drawn between the ordination ceremonies of Jehovah’s Witnesses and that of other religions. The Board in making its decision did not commit religious discrimination, but merely recognized the difference in use of terms “ordain” and “minister” by Jehovah’s Witnesses as compared to the use of such terms in many other churches. See United States v. Hawver, 7 Cir., 1971, 437 F.2d 850, where this Court took note (at page 851, footnote 1) of the fact that the words “ordain” and “minister” are used by Jehovah’s Witnesses with content such as not to fit easily into the statutory concept of “regular or duly ordained ministers of religion.” See also United States v. Pompey, 3 Cir., 1971, 445 F.2d 1313, 1317-1318. Both cases refer to United States v. Tettenbum, D.Md., 1960, 186 F.Supp. 203, 207-211 and United States F.Supp. 203, 207-211 and United States 822, 837-841, for an explanation of the hierarchy of Jehovah’s Witnesses.

For example, Defendant is one of 76 ministers in his congregation of 92 members. This would be a most unusual situation in many churches.

Mr. Lerch also testified that the Local Board did accept certification by the hierarchy of Jehovah’s Witnesses that a particular minister was ordained and held a church assignment as his regular and customary vocation, just as such certifications were accepted for other religions. He indicated that all such certifications are subject to periodic check for possible changes in status. There was evidence as to one instance in which a registrant (not a member of Jehovah’s Witnesses) was changed from a classification of IV-D to I-A on notification of change in circumstances.

The record reveals no support for any finding of religious discrimination. There was nothing to go to the jury.

The judgment of the District Court is affirmed.

Affirmed.


author: PER CURIAM.

text:
    Chester SAWICKI, Petitioner-Appellant, v. Perry JOHNSON, Warden, Respondent-Appellee.
    No. 72-1951.
    United States Court of Appeals, Sixth Circuit.
    Submitted Feb. 16, 1973.
    Decided March 22, 1973.
    Chester A. Sawicki, in pro. per.
    Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Mich., on brief, for respondent-appellee.
    Before CELEBREZZE, KENT and LIVELY, Circuit Judges.
   PER CURIAM.

This is an appeal pro se from an order of the District Court for the Eastern District of Michigan, Southern Division, denying Appellant’s petition for a writ of habeas corpus. Appellant was convicted by a jury of attempting to break or destroy a safe and contends that he was unconstitutionally denied his right to be represented by counsel.

On February 6, 1969 Appellant was bound over to the Circuit Court. On March 5, after Appellant’s arraignment, the Court appointed counsel for Appellant and his co-defendant. It is Appellant’s contention that during the next 63 days he saw his appointed counsel for a total of approximately five minutes; that the only court appearance made was at a second preliminary examination and that no effort was made to obtain a reduction of the charges, an effort Appellant had been told would be made; that no meeting took place between Appellant and his counsel during the 49 days between the appointment and the preliminary examination; and that after the examination, efforts by Appellant’s family to contact his attorney were unsuccessful. The preliminary examination took place on May 2, 1969. On May 9, 1969, Appellant and his co-defendant sent to the Court a notice of dismissal of their appointed counsel, stating as their reasons his refusal to consult with them and his appearance in court without preparation. The Court, on May 15, advised the two defendants that the dismissal would be permitted with the provision that no other counsel would be appointed on their behalf and that they would either have to obtain their own counsel or represent themselves. Both defendants affirmed their dismissal of counsel on May 17, 1969 and the Court entered an order on May 26, permitting the withdrawal of appointed counsel. In two subsequent letters to the Court, Appellant stated that he was unable to obtain counsel. On July 1, 1969, Appellant appeared for trial without counsel and was convicted.

We reverse the order of the District Court. When serious allegations are made by an indigent defendant that his appointed counsel is not providing adequate representation, they should not be taken lightly. United States v. Morrissey, 461 F.2d 666, 669 (2d Cir. 1972). No hearing was held by the District Court to determine the validity.of Appellant’s allegations. Nor was any investigation made at the time Appellant notified the Court of his desire to dismiss his counsel. Appellant was simply advised by letter that other counsel would not be appointed. It does not appear, therefore, that Appellant’s allegations have been given serious consideration. As the Court in United States v. Morrissey, supra, said:

“The courts cannot give with one hand an indigent defendant the right to appointed counsel and then, with the other hand, effectively take that right away by refusing to recognize the possibility that defendant’s allegations of inadequate representation might prove correct after detailed inquiry.” 461 F.2d at 670 n. 6.

This is exactly what has happened in this case. We do not find that a waiver of counsel can be inferred from Appellant’s dismissal of counsel. At the time of his notice of dismissal he stated, and he has reiterated here, his reasons for wanting counsel dismissed. As we stated in Wilson v. Wiman, 386 F.2d 968 (6th Cir. 1967), cert. denied, 390 U.S. 1042, 88 S.Ct. 1634, 20 L.Ed.2d 303 (1968), “a heavy burden [rests] upon the State to prove that the right to counsel [has] been knowingly and intelligently waived.” 386 F.2d at 969. The record indicates that Appellant expressed his wishes to be represented and that he did not wish to proceed to trial without counsel.

In Coles v. Peyton, 389 F.2d 224 (4th Cir. 1968) cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968), the Court stated the principles to be applied when counsel is appointed for an indigent defendant:

“Counsel for an indigent defendant should be appointed promptly. Counsel should be afforded a reasonable opportunity to prepare to defend an accused. Counsel must confer with his client without undue delay and as often as necessary, to advise him of his rights and to elicit matters of defense or to ascertain that potential defenses are unavailable. Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself enough time for reflection and preparation for trial. An omission or failure to abide by these requirements constitutes a denial of effective representation of counsel unless the state, on which is cast the burden of proof once a violation of these precepts is shown, can establish lack of prejudice thereby.” 389 F.2d at 226.

These matters should be the subject of a thorough investigation when allegations such as Appellant’s are made.

Since there is no dispute over the fact that Appellant was tried without being represented by counsel, the burden is upon the state to prove that he waived counsel. This, they have not done. Accordingly, the order of the District Court is reversed, and the case is remanded for the purpose of holding an evidentiary hearing concerning Appellant’s allegations of denial of representation by counsel.

      . Concerning the allegation of denial of the right to be represented by counsel, the District Court said:
      “Petitioners were apprehended at the scene, advised of their constitutional safeguards and jailed. After arraignment and preliminary examination without the benefit of counsel petitioners were bound over to the Circuit Court for trial. At the Circuit Court arraignment a plea of not guilty was entered and defense counsel was appointed. I-Ie immediately secured a new preliminary examination in order to insure petitioners the full benefit of his representation. However, in the interim between the Circuit Court arraignment and the date of trial petitioners sought the dismissal of appointed counsel. The court, unable to find a sufficient basis to warrant such removal, informed petitioners that he would grant their request provided they understood that no other counsel would be appointed and that they would thus have to obtain their own. Being thus aware of the circumstances, petitioners still insisted upon counsel’s dismissal. They now contend that the court’s refusal to grant additional assistance of counsel was a deprivation of their constitutional right to counsel pursuant to the dictates of Gideon v. Wainwright, 372 U.S. 335 [, 83 S.Ct. 792, 9 L.Ed.2d 799] (1963). “In light of the record before this Court, however, such a claim is groundless. As noted, petitioners were well aware of their right to counsel and the terms by which they were able to dismiss appointed counsel were made explicit. Under these circumstances it is the opinion of this court that by accepting the trial court’s proposition petitioners effectively abandoned any further right to court appointed counsel. Also there is no indication that petitioners were denied ample opportunity to retain private counsel of their choice. The instant claim, therefore, does not warrant relief.”


author: BELL, Circuit Judge:

text:
    Manon FREEMAN, Individually and In Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. T. M. PARHAM, Director of the Georgia Department of Family and Children Services et al., Defendants-Appellees.
    No. 72-2213.
    United States Court of Appeals, Fifth Circuit.
    March 13, 1973.

      Jay E. Loeb, Michael H. Terry, Edward L. Baety, Atlanta, Ga., for plaintiff-appellant.
    Arthur K. Bolton, Atty. Gen., Atlanta, Ga., John W. Stokes, U. S. Atty., Mrs. Charney K. Berger, Asst. U. S. Atty., Atlanta, Ga., Harold N. Hill, Jr. Executive Asst. Atty. Gen., James B. Talley, Carl C. Jones, Asst. Attys. Gen., Atlanta, Ga., for defendants-appellees.
    Before BELL and THORNBERRY, Circuit Judges and GROOMS, District Judge.
   BELL, Circuit Judge:

The sole question on this appeal is whether certain provisions of Title XIX of the Social Security Act, 42 U.S.C.A. § 1396 et seq., require the State of Georgia to provide Medicaid to a class of persons who are currently ineligible for Medicaid under Georgia law. The district court held that the statute does not require the state to provide Medicaid to these persons. We affirm.

In 1970 appellant applied for public assistance under the Georgia program of aid to the disabled. The State Department of Family and Children Services found him to be medically disabled and certified him for assistance. The Department also certified him for Medicaid. This was in accordance with the general terms of the Georgia Medicaid program. Under the Georgia plan, a person who qualifies for public assistance under other federally funded state programs also qualifies for Medicaid.

The appellant’s problems began when he was found to be eligible for Social Security Disability Benefits. These amounted to $116.90 per month. This new income exceeded the maintenance level of $97.00 per month, which determined the appellant’s eligibility for assistance under the aid to the disabled program. The Department of Family and Children Services terminated his assistance under that program. Further, the Department terminated his Medicaid benefits. Because he was no longer eligible for aid to the disabled, he was no longer eligible for Medicaid, under the Georgia plan.

Appellant took an administrative appeal. He argued that his monthly income under Social Security, reduced by his monthly medical expenses, was below the $97.00 maintenance level. The Department rejected this argument. It found that the cost of monthly medical expenses was not deductible from gross monthly income for the purpose of determining eligibility for Medicaid.

Appellant then brought this class action under 42 U.S.C.A. § 1983. He alleged that the Department of 'Family and Children Services had denied him Medicaid benefits to which he was entitled under federal statute. He relied, specifically, on' the “spenddown” provision of Title XIX. 42 U.S.C.A. § 1396a(a)(17). That provision provides in pertinent part:

“A State plan for medical assistance must . . . include reasonable standards . and provide for flexibility in the application of such standards with respect to income by taking into account, except to the extent prescribed by the Secretary the costs (whether in the form of insurance premiums or otherwise) incurred for medical care or . remedial care recognized under State law.”

The appellant maintained that- under this provision his monthly medical expenses should have been taken into account in determining his eligibility for Medicaid. He maintained that he was eligible for Medicaid because his monthly income, less his monthly medical expenses, was below the $97.00 eligibility level. As noted, the district court denied relief.

The appeal is controlled by Fullington v. Shea, 320 F.Supp. 500 (1970), aff’d without opinion, 1971, 404 U.S. 963, 92 S.Ct. 345, 30 L.Ed.2d 282. In that case the plaintiffs were, as here, persons who were ineligible for Medicaid because their gross incomes were too high, but who suffered recurrent medical expenses which reduced their incomes below the eligibility level. They relied upon the spenddown provision as. the basis of their claim.

The Fullington court held, first, that under 42 U.S.C.A. § 1396a(a) (10) (B), the states are not required to provide Medicaid to persons who fail to qualify for other federally funded assistance programs due to their gross incomes being too high. The court held, second, on an in pari materia approach, that if the states are not required to provide Medicaid to such persons, the spenddown provision could not be read to require effectively the same result, even in the case of ineligible individuals whose high monthly incomes, less recurrent medical expenses, are below the eligibility level.

Appellant attempts to distinguish Fullington, on the ground that the holding is limited to the proposition that the state is not required to establish a program for the “medically needy” under § 1396a(a)(10(B). He argues that he does not wish to establish a program for the medically needy. He merely wishes the state to implement the spenddown provision.

This distinction is not persuasive. In Fullington the court refused to give effect to the “spenddown” provision. It did so precisely because it held that under § 1396a(a) (10) (B), the state is not required to extend Medicaid benefits to the class of persons who do not qualify for other assistance programs because their gross incomes are too high. In the court’s view, the plaintiffs before it, who invoked the spenddown provision, were members of that class (the medically needy). Accordingly, they were not entitled to Medicaid as of right.

Thus, it is true that the Fullington court held that the state is not required to institute a Medicaid program for the medically needy. But it is also true that this was the basis of its holding that the spenddown provision is without effect where a state has not elected to cover the medically needy.

Affirmed.

      . The $116.90 in Social Security benefits, minus $50.00 in medical expenses, equals $66.90, which is below the eligibility level of $97.00. Appellant suffers from diabetes and hypertension. His disease can be controlled with proper medication, at an average cost of $50.00 per month,

      . The “medically needy” are persons who do not qualify for other federally funded assistance programs because, and only because, their incomes and financial resources do not satisfy state-imposed requirements.


author: PER CURIAM:

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellant, v. Albert LIVERETT et al., Defendants-Appellees.
    No. 72-1899.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 15, 1973.
    Dorrance Aultman, Hattiesburg, Miss., Natie P. Caraway, Jerome Steen, Jackson, Miss., for plaintiff-appellant.
    Jon A. Swartzfager, Laurel, Miss., for Stanley K. Posey.
    Leonard B. Melvin, Jr., Laurel, Miss., for Calvin Vester Brownlee.
    Paul Holmes, Hattiesburg, Miss., for Albert Liverett and Steven Ledford.
    Before WISDOM, GODBOLD and RONEY, Circuit Judges.

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

   PER CURIAM:

Appellant State Farm Mutual Automobile Insurance Company brought this declaratory judgment action to determine whether its liability under a policy of automobile insurance had been terminated. State Farm alleged that the automobile had been sold by the insured, in violation of the policy’s contractual requirement that the named insured be and remain the sole owner of the vehicle. The District Court found that ownership of the automobile had not been transferred, so it denied State Farm’s prayer for declaratory relief. We affirm.

The automobile in question was owned by the insured, Steven D. Ledford, a resident of Mississippi. On October 9, 1970, the automobile was involved in an accident while being driven by Albert Liverett, a friend of Ledford. State Farm alleged that it is not responsible on the policy issued to Led-ford because, at the time of the accident, ownership of the automobile had been transferred from Ledford to Liverett under an informal arrangement. Thus, the sole issue before the District Court was whether ownership was in Ledford, the insured, at the time of the accident. If so, then State Farm would be liable for the negligence of Liverett, who was driving the car with Ledford’s permission.

State Farm admitted that no formal transfer of title had taken place, as required by Section 8065 of the Mississippi Code. Nor had the automobile been registered with the State of Mississippi as being owned by Liverett. State Farm contended, however, that Ledford had sold the automobile to Liverett on the condition that formal title would be transferred, and a bill of sale written, when Liverett had completely paid for it.

This question was one for the District Court. We have carefully reviewed the evidence presented and, although we recognize that it is the duty of an appellate court to correct clear error even in findings of fact, the choice by the trier of fact here was between two views of the weight of the evidence. Its decision is not clearly erroneous within the meaning of Rule 52(a), F.R.Civ.P., United States v. Yellow Cab Co., 338 U.S. 338, 341, 70 S.Ct. 177, 94 L.Ed. 150 (1949). There is sufficient evidence to support the District Court’s conclusion that, at the time of the accident, Liverett had no legal or equitable ownership interest in the automobile but was using it with the express permission of its owner Ledford.

State Farm also contends that the District Court erred when it chose to disregard Liverett’s testimony in its entirety. At the trial, Liverett’s testimony was admittedly inconsistent with the testimony that he had given in an .earlier deposition. In its memorandum decision, the District Court stated that it was laying aside Liverett’s “versatile” testimony in its entirety, deciding the case on the other “credible and convincing testimony.” The decision to disregard all of Liverett’s testimony was well within the discretion of the District Court. A District Court is not required to choose between two conflicting statements of a single witness if other substantial and credible evidence is available. Cf. In Re Gustav Schaefer Co., 103 F.2d 237, 242 (6th Cir. 1939).

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kung How FONG, a/k/a Kwock Tam Kwoon, Defendant-Appellant.
    No. 72-2666.
    United States Court of Appeals, Ninth Circuit.
    March 5, 1973.
    Certiorari Denied June 11, 1973.
    See 93 S.Ct. 2785.

      J. Frank McCabe, Deputy Federal Public Defender (argued), James F. Hewitt, Federal Public Defender, San Francisco, Cal., for defendant-appellant.
    Dennis Nerney, Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiffappellee.
    Before WRIGHT and WALLACE, Circuit Judges, and KELLEHER, District Judge.

       Of the Central District of California.

   PER CURIAM:

On this appeal from a conviction on two counts involving possession of heroin, appellant urges three assignments of error, none of which we find to justify reversal.

It is argued that the government here was engaged in impermissible creative activity of the type which we condemned in Greene v. United States, 454 F.2d 783 (9th Cir. 1971) and United States v. Russell, 459 F.2d 671 (9th Cir. 1972). Those cases involved government agents whose activities supplied essential elements to the crimes, chemicals necessary to drug manufacture and components with which to make bootleg whiskey.

Here, there was neither entrapment nor creative activity. The government agent and the intermediary were but carrying out the pre-existing plan of the exporter and appellant who was the importer. Appellant was predisposed to commit the crime. See United States v. Granger, 475 F.2d 1022 (9th Cir. 1973).

Appellant complains of the conduct of the prosecutor in the course of closing argument. The complaint has merit because the Assistant United States Attorney stepped out of bounds on at least three occasions, expressing his personal opinion of the appellant and of the evidence and concluding that, if the jurors thought the government witnesses were liars, they should write the Attorney General about it. This last remark was excepted to but the trial court was not asked to admonish the jury or take other appropriate action.

Appellant relies on United States v. Cummings, 468 F.2d 274 (9th Cir. 1972), in which we reversed a conviction for blatantly improper prosecutorial argument to a jury. We there cited a number of authorities with which prosecutors should be familiar. We cite again the American Bar Association Standards Relating to the Prosecution Function § 5.8, which give guidance on arguments to the jury.

We agree with the district judge here that the offensive argument was not prejudicial under the circumstances and it was not plain error under Rule 52(b). See Orebo v. United States, 293 F.2d 747, 749-750 (9th Cir. 1961).

Appellant’s third assignment of error has been considered and is without merit.

Affirmed.