author: SNEED, Circuit Judge:

text:
    Sawako KAKUWA and Pacific Ocean Development Co., Inc., Appellants, v. Adrian C. SANCHEZ et ux., Appellees.
    No. 73-1782.
    United States Court of Appeals, Ninth Circuit.
    June 7, 1974.

      Finton J. Phelan, Agana, Guam (argued), for appellants.
    Howard G. Trapp (argued), of Trapp, Gayle & Co., Agana, Guam, for appellees.
    Before CHOY and SNEED, Circuit Judges, and KING, District Judge.

       Honorable Samuel P. King, United States District Judge, District of Hawaii, sitting by designation.

   OPINION

SNEED, Circuit Judge:

Counsel for the plaintiff opened his oral argument before this Court by observing that this case is a “mess.” In this he is right, although its condition has been achieved substantially through his own ineptness.

The appeal challenges the dismissal by the district court of Guam of Count II of the Plaintiff’s complaint on its merits pursuant to the authority of Fed.R.Civ. P. 37(d) and 37(b)(2)(C). Count I of the complaint, which consisted of the claim of Sawako Kakuwa in her individual capacity, was dismissed by the district court on October 10, 1972 on the ground that she was not the real party in interest, and this action was affirmed by this Court in No. 72-3164. It is our view that notwithstanding the ineptness of counsel the district court erred in dismissing Count II of the complaint.

Plaintiff Pacific Ocean Development Company Inc. is a corporation of Guam, and Sawako Kakuwa is a Japanese citizen residing in Tokyo. The complaint alleges that Masaeki Kakuwa, the now deceased husband of Sawako Kakuwa, and defendant, Adrian C. Sanchez, met in December, 1969 and that as a result of this meeting Sanchez agreed to sell a certain parcel of land to Masaeki. After making a $1,000 down payment on the parcel, Masaeki, Kiyoshi Nakanote, Edward G. Tsutsui, Hisako Tsutsui, and the defendant Adrian Sanchez joined in securing Articles of Incorporation of the plaintiff Development Company. The complaint also alleges that in March, 1970 the purchase price of the parcel was modified to $120,000 and that during that month $16,400 was paid to Sanchez from the individual funds of Masaeki. In June, 1970 the Development Company’s Articles of Incorporation and By-Laws were filed. At the first meeting of its stockholders and directors Masaeki Kakuwa was elected President and Adrian C. Sanchez Treasurer and Assistant Secretary.

The complaint continues by alleging that Masaeki Kakuwa died in January, 1971 and that in April, 1971 Sanchez declared the contract for the sale of the parcel to be cancelled and asserted that he was entitled to retain the down payment as liquidated damages. This retention, despite a demand that it be returned, is characterized as unjust enrichment in the complaint. Moreover, it is alleged that Sanchez breached his fiduciary duties to the Development Company by failing to notify the directors that a second payment of $17,400 was due on March 18, 1971 and by selling the parcel, now allegedly worth $414,000, to others without providing the Development Company an opportunity to avoid the loss of its valuable contract. The complaint closes with a prayer for damages in the amount of $294,000. The defendants deny all the legally relevant allegations.

On September 5, 1972, shortly after the complaint had been filed, counsel for the defendants filed a notice of intent to take the oral deposition of the plaintiff and Sawako Kakuwa in the counsel’s office on September 20 and 21, 1972. After being properly informed of this notice, counsel for plaintiff on September 14, 1972, filed what he denominated as a “Motion To Vacate and Set Aside The Notice of Taking Depositions By Oral Examinations And To Examine By Written Interrogatories Or Upon Written Questions.” In this motion plaintiff’s counsel claimed that Sawako Kakuwa had little information about the case and did not have enough money to come to Guam. He also pointed out that Kiyoshi Nakanote was the only officer of the corporation who had sufficient knowledge of the transactions to answer questions, that he resided in Tokyo and was in poor health and that being absent from Tokyo would impose a great burden on him. The motion concluded by alleging that the plaintiff Development Company had no funds to bring these persons to Guam and requesting that the depositions be taken by written interrogatories. The motion was scheduled for hearing on September 22, 1972, two days after the date set for the initial oral deposition. Plaintiff’s counsel arranged this scheduling believing that his motion stayed the taking of oral depositions.

Neither the plaintiff nor Sawako Kakuwa appeared to give their oral depositions on the dates specified. Thereafter, as already indicated, Count I of the complaint was dismissed. Plaintiff moved for default judgment on October 20, 1972, and six days later the defendants moved for dismissal of Count II pursuant to Fed.R.Civ.P. 37(d) and 37(b)(2)(C). This motion was heard on November 3, 1972. At that time counsel for plaintiff was informed by the court that he should have sought protective orders under Fed.R.Civ.P. 26(c) prior to the dates set for the oral depositions and that his September 14, 1972 motion which was scheduled to be heard subsequent to the deposition dates could not function as a request for such a protective order and did not relieve the plaintiff of the failure to have a designated person available for the oral deposition. Nonetheless, the district court refused to dismiss Count II and directed the plaintiff corporation to pay all costs relative to the taking of the deposition.

On November 8, 1972 the defendants once more served notice of their intent to take the oral deposition of the plaintiff. The deposition date was November 23, 1972. Counsel for plaintiff, on November 21, 1972, filed a request for a protective order directing that the notice to take the oral deposition be quashed on the grounds that Kiyoshi Nakanote had informed him that he had resigned as an officer or director of the plaintiff corporation and that the request was inappropriate “until after a hearing on the notice of motion to set aside the taking of the deposition by oral examination, and directing that it be taken by written interrogatories or questions.” Presumably counsel was referring to his September 14, 1972 motion. The district court ordered the notice of intent to take an oral deposition quashed, but, apparently, it did not consider the question of whether to direct the use of written interrogatories.

Shortly after these events the steps to appeal the dismissal of Count I were undertaken. Then, on December 26, 1972, the defendants once more filed a notice to take the oral deposition of the plaintiff corporation. This time the deposition date was January 8, 1973. On January 5, 1973 counsel for plaintiff filed a “Motion to Vacate and Set Aside The Notice Of Taking Deposition By Oral Examination” and set it for hearing on January 26, 1973, apparently on the assumption that a hearing prior to January 8, 1973 was not proper under the local court rules. In this motion, counsel once more pointed out that Nakanote was no longer an officer or director of the plaintiff corporation, that the only officer and director having knowledge was the defendant Sanchez, and that written interrogatories should be directed to Nakanote. Of course, no officer, director, or managing agent of the plaintiff appeared at the January 8, 1973 deposition.

On January 10, 1973 defendants filed notice of their intent to move to dismiss Count II on February 2, 1973 pursuant to Fed.R.Civ.P. 37(d) and 37(b)(2)(C). When the plaintiff’s January 5, 1973 motion came up for hearing on January 26, 1973, the defendants requested that it be heard on February 2 together with their motion to dismiss. Counsel for plaintiff agreed with this request, and the date was set accordingly.

On February 2 both motions came before the district court. After ascertaining that counsel for the plaintiff contended “that the matter be handled by written interrogatories”, the district court observed that Fed.R.Civ.P. 33 only permitted written interrogatories to be served on “parties” and that, consequently, it could not provide a basis for serving such interrogatories on Nakanote, who was not a “party.” The court then inquired whether plaintiff’s counsel was requesting a protective order, and, when informed that he was, the court once more pointed out that a protective order could not be obtained after the date set for the deposition. The plaintiffs’ counsel pointed out that the local rules require a two week notice, but, in response, the court observed that requests for protective orders are exceptions to such rules. Thereupon, the district court asked plaintiffs’ counsel if he had “any opposition or memorandum in opposition to” the motion by the defendants’ counsel to dismiss the action, and the plaintiffs’ counsel surprisingly responded, “No.” The motion, not surprisingly, was granted.

We cannot escape the conclusion, however, that the district court erred in not recognizing that, under the circumstances of this case, the just procedure would have required the deposition of Kiyoshi Nakanote be taken upon written questions pursuant to Fed.R. Civ.P. 31, utilizing one of the methods prescribed in Fed.R.Civ.P. 28(b) for the taking of depositions in foreign countries. Cf. Hyam v. American Export Lines, Inc., 213 F.2d 221 (2d Cir., 1954). By our foregoing recital of the plaintiff’s counsel’s clumsy efforts to achieve the end which these rules authorize, we wish to make plain our understanding of the exasperation undoubtedly experienced by the trial court. However, the record indicates to us that counsel for the plaintiff adequately revealed the general thrust of his wishes and the circumstances with which he was confronted. Having done so it would be inappropriate to characterize the conduct of either plaintiff’s counsel or the plaintiff as contumacious or in defiance of the court’s authority. Cf. Pioche Mines Consolidated, Inc. v. Dolman, 333 F.2d 257 (9th Cir., 1964), cert. denied 380 U.S. 956, 85 S.Ct. 1081, 13 L.Ed.2d 972 (1965).

Our conclusion is strengthened by the fact that Fed.R.Civ.P. 37 must be read as limited by the Fifth Amendment’s proscription against the deprivation of property without due process of law. Societe Internationale v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). We are prepared to assert that dismissal under the circumstances of this case sufficiently resembles dismissal because of “inability” to comply with Fed.R.Civ.P. 37(b)(2)(C) rather than because of “willfulness, bad faith, or any fault of petitioner” to require that Societe Internationale’s reasoning govern. 357 U.S. at 212, 78 S.Ct. 1095.

Nothing said here is intended to preclude the use of other sanctions authorized by Fed.R.Civ.P. 37(b)(2). Nor do we mean to suggest that should plaintiff’s counsel fail to prosecute this action upon its remand to the district court, involuntary dismissal under Fed. R.Civ.P. 41(b) might not be appropriate.

We hold that the sanction of dismissal was improper under the circumstances of this case.

Reversed and remanded.

       making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.
      On the application of this provision, see K. Davis, Administrative Law Treatise § 29.06 (Supp.1970) and Judge Kalodner’s thoughtful opinion in Charlton v. United States, 3 Cir. 1969, 412 F.2d 390.


source: Caselaw Access Project

author: LIVELY, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Dennis J. WAC, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Al V. RAFTI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Donald VAN GUNTEN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William Paul SCOTT et al., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. George ANTON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John VITANTONIO, Defendant-Appellant.
    Nos. 73-1588 to 73-1593.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 4, 1973.
    Decided June 20, 1974.

      Norman G. Zemmelman and Gerald S. Lubitsky, Toledo, Ohio, for defendants-appellants; Britz & Zemmelman, Harland M. Britz, Toledo, Ohio, on brief for William Paul Scott, William Joseph Scott, Madeline Scott, Ernest Samo and Thomas Clark; John J. Callahn, Toledo, Ohio, on brief, for Dennis Wac; Allan J. Chabler, Toledo, Ohio, on brief, for A1 V. Rafti; Gerald S. Lubitsky, Toledo, Ohio, on brief, for John Vitantonio; Marshall R. Desmond, Toledo, Ohio, on brief, for George Anton; William M. Culbert, Toledo, Ohio, on brief, for Donald Van Gunten.
    Frank A. Justen, Asst. U. S. Atty., for plaintiff-appellee; Frederick M. Coleman, U. S. Atty., Toledo, Ohio, on brief.
    Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.
   LIVELY, Circuit Judge.

This is an appeal from convictions under a single count indictment charging violations of 18 U.S.C. § 1955 and 18 U. S.C. § 2. Eighteen persons were named in the original indictment, and four were found not guilty. Four of the remaining fourteen who were convicted have not appealed. The appeals of the ten remaining defendants have been consolidated and were heard together. The case concerns the handling of bets by persons in the Toledo area and involves athletic and sports events which took place throughout the country. The court tried the case without a jury. No purpose would be served by a detailed recitation of the evidence contained in the transcript. The questions presented on appeal were first raised by way of preliminary motions in the trial court and were properly preserved for consideration here.

The Constitutionality of 18 U.S.C. § 1955

The defendants maintain that the statute under which they were convicted is unconstitutional as applied to them because the evidence does not show that their gambling operation had any effect on interstate commerce. The statute reads in part as follows:

§ 1955. Prohibition of illegal gambling businesses
(a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both.
(b) As used in this section—
(1) “illegal gambling business” means a gambling business which—
(i) is a violation of the law of a State or political subdivison in which it is conducted;
(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and
(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.
(2) “gambling” includes but is not limited to pool-selling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein.
(3) “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.
(c) If five or more persons conduct, finance, manage, supervise, direct, or own all or part of a gambling business and such business operates for two or more successive days, then, for the purpose of obtaining warrants for arrests, interceptions, and other searches and seizures, probable cause that the business receives gross revenue in excess of $2,000 in any single day shall be deemed to have been established.

Although this court has not been called upon to decide the constitutionality of § 1955 on this particular ground, the same challenge was made in United States v. Aquino, 336 F.Supp. 737 (E.D.Mich. 1973). There Judge Kennedy concluded that the statute is constitutional in that it deals with a class of activities which affects interstate commerce and it is not essential that any particular intrastate activities of a particular person or group of persons within the prohibited class of activities actually be shown to have an effect on commerce. Judge Kennedy reached this conclusion on the basis of an analysis of the Supreme Court decisions in Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), and United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941). We are in agreement with the result and reasoning of United States v. Aquino, supra, and hold that § 1955 is not an unconstitutional attempt at federal regulation of purely intrastate activities.

It is contended that § 1955(c) is unconstitutional in that the presumption created therein is without a rational basis. This court has dealt with this argument in two recent cases and has rejected the contention of the defendants herein. We adhere to our decisions in United States v. Palmer, 465 F.2d 697 (6th Cir.), cert. denied, 409 U.S. 874, 93 S.Ct. 119, 34 L.Ed.2d 126 (1972); and United States v. DiMario, 473 F.2d 1046 (6th Cir.), cert. denied, 412 U.S.907, 93 S.Ct. 2298, 36 L.Ed.2d 972 (1973).

It is also claimed that § 1955(c) is unconstitutional in that the presumption contained in it is a “watering down” of the Fourth Amendment requirements of probable cause. This argument assumes that probable cause to issue a warrant or interception authorization may be based on the presumption of § 1955(c) alone. This is not correct. Upon a showing that five or more persons conduct a gambling business for two or more successive days a presumption arises that the “take” is in excess of $2,000 in any single day. Nevertheless, the magistrate or district judge from whom the warrant or interception order is sought must still find probable cause to issue the warrant or order. United States v. Politi, 334 F.Supp. 1318, 1323 (S.D.N.Y.1971). It should be noted that the district judge who issued the two wiretap orders in this case had before him detailed affidavits of F.B.I. agents based on observations and information received from reliable confidential sources and that this information was sufficient to establish probable cause without reference to the statutory presumption. We hold that 18 U.S.C. § 1955(c) does not violate the Fourth Amendment by permitting the issuance of warrants where probable cause has not been established.

The Wiretap Evidence

Much of the evidence in this case consisted of conversations overheard by government agents as the result of two wiretap orders issued by the district court. In addition, gambling paraphernalia which was seized pursuant to a search warrant was introduced. The affidavit upon which the search warrant was based contained a great deal of information which flowed from the wiretaps. The first wiretap order was issued along with a “pen register” order on November 22, 1971. The application was filed by an Assistant United States Attorney for the Northern District of Ohio and was supported by the affidavit of the FBI agent who had supervised the investigation of the case. There was also filed with the application a letter to the Assistant United States Attorney from Henry E. Petersen, Acting Assistant Attorney General of the United States, which authorized the Assistant United States Attorney to make application to a federal judge for an order permitting the interception of wire communications to and from facilities described in the letter for a period of 15 days. These documents satisfied the probable cause requirements for issuing an intercept order and the recitations contained in them indicated that authorization to apply for the order had been granted as a result of procedures which complied with the requirements of 18 U.S.C. §§ 2516 and 2518. Section 2516 provides in part as follows:

(1) The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, . . . .”

On the motion to suppress evidence gained from these wiretaps it was shown that neither the Attorney General nor any assistant attorney general specially designated by him had authorized the application which resulted in the first wiretap order. Instead, Sol Lindenbaum, Executive Assistant to Attorney General John N. Mitchell, affixed Mr. Mitchell’s initials to a memorandum addressed to Acting Assistant Attorney General Petersen authorizing the application. It is maintained by the government that this procedure satisfies the requirements of § 2516 because Lindenbaum, was the “alter ego” of the Attorney General. On the other hand, appellants argue that the procedures of §§ 2516 and 2518 were carefully worked out by Congress and that one of the most important considerations was that the person approving authorization for wiretap applications not only be identifiable, but also be politically responsible. The Attorney General and all assistant attorneys general are appointed with the advise and consent of the Senate whereas the appointment of the executive assistant to the Attorney General is not subject to Senate confirmation.

The Supreme Court has recently held that evidence which is obtained from an interception order based on the procedures followed in obtaining the first authorization in this case is subject to suppression. United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341, (decided May 13, 1974). The Court held that § 2516 may not be construed to permit the Attorney General to delegate authority to approve applications for wiretap authorizations to anyone other than an assistant attorney general. Thus the communications overheard pursuant to the first order were “unlawfully” intercepted, a ground for a motion to suppress under § 2518(10) (a)(i).

In obtaining the second wiretap order in this case the Justice Department followed the procedure described in United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (decided May 13, 1974) and United States v. Martinez, #73-1740, 498 F.2d 464 (6th Cir., decided June 18, 1974). Although there was a misidentification of the officer who authorized the application, since the Attorney General did in fact personally approve the request from a field attorney,, there was substantial compliance with the statutory requirements. Even though there were two separate surveillance orders in this case, it is apparent that much of the information contained in the application for the second order was obtained from electronic surveillance as a result of the first order. In Giordano there were two wiretap orders, the second being an extension order which was personally approved by the Attorney General. The Supreme Court noted that results of the interceptions made pursuant to the first order were recited in detail, as required by § 2518(1) (f), in the affidavit filed in support of the application for an extension. Even if the other evidence, exclusive of information obtained from the illegal order, were sufficient to support the extension order, communications intercepted under that order were subject to suppression. The Court noted that the Act forbids extensions without consideration of information already discovered by means of the original order, and stated — •

In our view, the results of the conversations overheard under the initial order were essential, both in fact and in law, to any extension of the intercept authority. Accordingly, communications intercepted under the extension order are derivative evidence and must be suppressed. 416 U.S. at 533, 94 S.Ct. at 1835.

Though the second application in this case was not literally for an extension order since it added a new suspect and several new telephones, it was filed immediately upon expiration of the first order and related primarily to the same persons and locations. Not being an application for an extension, it was not controlled by § 2518(1)(f). In this respect the present case differs from Giordano and it cannot be said that the results of the conversations overheard pursuant to the first order were “essential in law” to issuance of the second order. Nevertheless, a significant portion of the supporting affidavit filed with the second application consisted of transcripts of conversations overheard and lists of calls monitored pursuant to the first order. This information was relied upon by the applicant and presumably considered by the district judge who granted the second order. While not essential in law under the circumstances of this case, we deem the results of the first order to be “essential in fact” to the granting of the second order.

Congress fashioned an exclusionary rule for illegal wiretap evidence in 18 U.S.C. § 2515, which provides that—

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.

There is no indication that the standard of exclusion to be applied to illegally obtained information disclosed in an application relied upon to grant a new order is less stringent than that applied to illegally obtained information disclosed in an application relied upon to grant an extension. The words “derived therefrom” clearly extend the right of exclusion beyond evidence directly obtained as a result of a surveillance order. This appears to be a codification of the “fruit of the poisonous tree” doctrine. Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939). See United States v. Giordano, supra, dissenting opinion of Mr. Justice Powell, 416 U.S. at 558-561, 94 S.Ct. 1820, 40 L.Ed.2d 341. The record demonstrates a connection between the results of the first order and the asserted need for the second. The reliance on those results in support of the second application indicates that this connection had not “become so attenuated as to dissipate the taint.” Nardone, supra, 308 U.S. at 341; Wong Sun v. United States, 371 U.S. 471, 491, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

We conclude that all evidence obtained from the interception of communications pursuant to the district court orders of November 22 and December 8, 1971 and items seized pursuant to search warrants issued in part on the basis of intercepted communications were derived from the illegal order of November 22 and must be suppressed. In view of this conclusion, it is not necessary to consider other issues which were briefed and argued.

The judgment of the district court is reversed and remanded for further proceedings consistent with this opinion.

       A pen register is a device attached to a telephone line which records on paper tape the telephone numbers dialed from that line. It also records the number of rings on incoming calls, but not the calling numbers. It does not indicate whether outgoing or incoming calls are completed and does not record conversations. The pen registers used in this case were attached to the monitoring devices which recorded conversations.

      . The grounds for a motion to suppress are set forth in 18 U.S.C. § 2518(10) (a) as follows :
      (i) the communication was unlawfully intercepted ;
      (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
      (iii) the interception was not made in conformity with the order of authorization or approval.


author: JOHN R. BROWN, Chief Judge:

text:
    Earl PANIOR and William M. Johnson, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. The IBERVILLE PARISH SCHOOL BOARD et al., etc., Defendants-Appellees.
    No. 73-2797.
    United States Court of Appeals, Fifth Circuit.
    July 22, 1974.
    Rehearing Denied Aug. 13, 1974.

      George M. Strickler, Jr., New Orleans, La., for plaintiffs-appellants.
    William J. Guste, Jr., Atty. Gen., Kenneth C. DeJean, 1st Asst. Atty. Gen., Baton Rouge, La., Samuel C. Cashio, Dist. Atty., 18th Judicial Dist., Maringouin, La., Joseph W. Cole, Jr., Port Allen, La., for defendants-appellees.
    Before BROWN, Chief Judge, and RIVES and DYER, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

The District Court approved a reapportionment plan for electing members to the Iberville Parish School Board (Board). The plan’s operation results in (i) two districts being over-represented by over 21%, two under-represented by over 15% — a total deviation of 37.-45%, and (ii) several incumbents (elected under the previous, concededly malapportioned ward system) being automatically continued in office. Appellants, self described as a class of under-represented black residents of Iberville Parish, claim the new plan violates their federal constitutional rights to fair representation. We agree.

The Board first complains appellants should have pursued a remedy in the Louisiana courts, under the state reapportionment statute. (See note 1, infra). But that ignores the function of the Fourteenth Amendment which secures the equal protection of minorities’ rights from the inequalities imposed upon them by state laws. In particular, this includes not only every citizen’s right to vote, but the right to have that vote count as much as any other voter’s. Reynolds v. Sims, 1964, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506.

The Board, presumably responding to the laudable recent statute requiring equality in Louisiana School Board elections, adopted the challenged 15-district representation plan to replace an earlier state legislatively imposed 9-ward system which had disparities running as high as 48% under and 42% over representation. In contrast to the previous ward plan, the new districts are claimed to have been designed to conform to the four elementary-to-high school sub-systems existing in four “eommunities-ofinterest”, (i) Maringouin, Rosedale, and Grosse Tete, (ii) Metropolitan Plaque-mine, (iii) White Castle, and (iv) a two-district area on the “other” (East) side of the Mississippi River.

At the outset there is the question of whether the governmental responsibilities and operations of the Parish School Board call for the one-man-one-vote standard. On argument the Court called for additional briefs. We are of the clear view that the principle applies. Under Louisiana law the Board has the power to determine the number of schools to be operated by the parish and their location, to employ and discharge all employees of the school system including teachers and principals, to fix salaries of all employees, to purchase property and equipment and to construct schools, to lease and sell school system property, and to assign students to the various schools. See, La.R.S. 17:81-17:87, 17:104, 17:443.

These responsibilities and activities are the substantial equivalent of the governmental operations declared to be adequate in Hadley v. Junior College District, 1970, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45.

Relying on Hadley, federal courts have consistently held elected state boards of education and local school boards bound by the “one person, one vote” standard. Powers v. Maine School Administration District, No. 1, D.Me., 1973, 359 F.Supp. 30 (district board); LoFrisco v. Schaffer, D.Conn., 1972, 341 F.Supp. 743 (local board), summarily aff’d, 1972, 409 U.S. 972, 93 S.Ct. 313, 34 L.Ed.2d 236; Leopold v. Young, D. Vt., 1972, 340 F.Supp. 1014 (district board); Dameron v. Tangipahoa Parish Police Jury, E.D.La., 1970, 315 F.Supp. 137 (Parish school board); Fahey v. Lexalt, D.Nev., 1970, 313 F.Supp. 417 (state board). See also, Dundee v. Orleans Parish Board of Supervisors of Elections et al., 5 Cir., 1970, 434 F.2d 135. And we do not regard subsequent Supreme Court cases dealing with specialized situations as significantly undermining Hadley or its holding.

When it comes to the merits the Board wholly failed to supply a record justification for the 37.45% deviation from numerical equality among the 15 new districts. And in assaying the initial arithmetical achievement of the ideal the deviation is the total of the extreme over-representation and the extreme under-representation (see Dist. A and B as under-represented and Dist. I and J as over-represented. App., infra). Indeed, this seems to have been the source of the trial Judge’s mis judgment on the extent of the disparity and hence, the need for corrective action. For in a number of ways he was positive that the deviation began with zero either up or down, but not both. But in this world of constitutional numbers the test lays the voting strengh of the most disadvantaged voter against that of the most overprivileged. Mahan v. Howell, 1973, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320; Abate v. Mundt, 1971, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399.

The principal factor urged by the Board is the existence of the four so-called communities of interest. Complicating, but a part of that, is the geographical separation of the area on the East Bank of the River. We do not doubt that, as in many essentially rural parishes throughout the state or in counties throughout the land, there are here the four pretty well definable groupings, clusters of people, with the natural commercial and social activities flowing from these concentrations. But these facts do not justify the marked deviation in the election of this body.

There is first the fact of history. In the thirty some years in which the highly disparate 9-ward plan was in effect the school system operated without any indicated difficulty through a 9-man Board elected from ward lines bearing no conscious relationship to the four communities of interest.

When it came time to reapportion as the 1970 law required, the Board acted commendably in seeking the assistance of the staff of the Louisiana School Board Association and the Public Affairs Research Council (PAR). Eleven plans were submitted by PAR and the 15-man plan adopted was substantially a joint product of the Board and PAR. But in laying down guideline criteria to PAR for development of a plan other than those eleven, the Board representatives stressed finding lines which would best assure reelection of the incumbents. And considering that PAR was sought out for its familiarity with the problem of reapportionment of Louisiana governmental units and thereby had a non-legal working knowledge of Supreme Court cases on factors and percentages, it is significant that its Director of Research (see note 7, supra) stated that PAR would not have recommended the 15-man plan adopted.

And all these possible subjective motivations aside, the most important thing is the statutory structure of the Board, its duties and responsibilities. (See note 3, supra). The Board acts as a unit. The Board as a whole has the responsibility for operating all of the schools. The Board’s function and responsibility is not decentralized into the four segments. Granted that it is both understandable and permissible that election lines may be drawn to take into account centers of interest, this cannot justify deviations approaching those here for election to an operative body which has to act as a unit. Not only must it act as a unit, its actions may have parish-wide consequence on voters.

Each voter is, therefore, entitled, so far as practicable, to an equal voice in the ultimate responsibility for such actions whether the brick and mortar are to go to the East Bank or to Metropolitan Plaquemine. Whether any set of conceivable circumstances could justify a situation such as this where two voters in two districts all but equal three voters in two others, we simply hold this case falls far short of that mark. The Supreme Court has approved a 16.4% maximum deviation, Mahan v. Howell, 1973, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320, but it is unlikely to approve a much higher variation — certainly not one more than twice as great. And none of the local factors stressed here measure up either in historical traditions or impossibility of solution to those which led the Court to approve tolerances it would otherwise have struck down in Mahan or in Abate v. Mundt, 1971, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399.

To cap it all off, the 15-man plan, conceived at least in part with a friendly eye toward incumbents (see note 7, supra) did not leave that to chance or voters’ wishes or whims. With respect to those members serving at the time of its adoption the plan itself called for them to complete the terms for which they had been elected under the 9-man ward system with its built-in disparity of 100% (48%+ and 42% — ). Thus, out of a 15-man Board 7 were elected by wards by allocation to Districts which do not at all correspond to the wards from which elected.

Obviously the continuation in office of those elected under an admittedly unconstitutional system and in no real sense ever “elected”, i. e., chosen by voters on the more palatable but still unacceptable plan cannot square with one-man one-vote. With respect to these hold-over-carry-over pre-1972 incumbents these terms should end at the earliest — the word is earliest — possible time. The upshot of this is that we must remand to the District Court with directions to enter appropriate orders. These will include (i) enjoining election (primaries or general) of any Board members under the 15-man plan, (ii) requiring the termination at the earliest possible time of the terms of those who are serving thereunder (or pre-1972 carry-over incumbents ), (iii) requiring the Board to submit an acceptable plan or plans without delay, (iv) requiring further hearings and determinations on an expedited priority basis, (v) the entry of such other orders as are desirable or appropriate in connection with the electoral process to assure the opportunity for voters to vote in 1974 for Board members under a constitutional plan, and (vi) award of attorney’s fees including allowance for services in the Court of Appeals. The mandate shall issue forthwith.

Reversed and remanded.

ON PETITION FOR REHEARING ORDER

The Petition for Rehearing is denied. But the Court does wish to make clear that it did not mean to require earlier action with respect to pre1972 carry-over members than was allowable as to those elected under the 1972 plan. The “earliest possible time” need not be “immediate” and may be considered by the District Judge to be the same for each in order to continue the body in existence pending adoption of a new constitutional plan. The Court meant only that members elected under an impermissible plan may not be carried over (without re-election) into a new plan, regardless of the new plan’s acceptability, simply to provide “continuity”.

APPENDIX

IBERVILLE PARISH SCHOOL BOARD ELECTION DISTRICTS IN EFFECT AFTER MAY 1, 1973

DISTRICT BOARD MEMBERS PER ELECTION DISTRICT POPULATION OF ELECTION DISTRICT POPULATION PER BOARD MEMBER IDEAL POPULATION PER BOARD MEMBER PERCENTAGE DEVIATION FROM IDEAL

A 2.366 2.366 2.050 +15.36%

B 2.367 2.367 2.050 +15.36%

C 2,096 2.096 2.050 +2.24%

D 1,797 1,797 2.050 —12.34%

E 4,183 2,091 2.050 +2.00%

F 2,026 2,026 2.050 —1.17%

G 2,216 2,216 2.050 +8.09%

H 2,146 2,146 2.050 +4.68%

I 1,597 1,597 2.050 —22.09%

J 1,618 1,618 2.050 —21.07%

K 4,171 2,035 2.050 —0.73%

L 4,193 2.096 2.050 +2.24%

      . The statute as amended in 1970 provides: “Each of the parish and city school boards, as heretofore created and organized, is hereby authorized to reapportion itself so that each member of said board represents as nearly as possible the same number of persons. Such reapportionment shall be based upon the 1970 federal census, or a special census as authorized hereinafter, and shall be accomplished and become effective when a school board lias complied with the provisions of R.S. 17:71.4.” LSA-R.S. 17:71.1.

      . At places along the Mississippi in Iberville Parish, the East Bank is really not the East Side of the River. In Louisiana the right ascending bank is always the East Bank.

      . “General powers of board
      “Each parish school board shall determine the number of schools to be opened, the location of the school houses, the number of teachers to be employed, and select such teachers from nominations made by the parish superintendent, provided that a majority of the full membership of the board may elect teachers without the endorsement of the superintendent. The boards shall have authority to employ teachers by the month or by the year, and to fix their salaries; provided that there shall be no discrimination as to sex in the fixing thereof and provided further, that it is not the purpose of this Section to require or direct the reduction of any salary, or salary schedule, presently in force. The boards shall see that the provisions of the state school laws are complied with.
      “Each school board is authorized to make such rules and regulations for its own government, not inconsistent with law or with the regulations of the Louisiana State Board of Education, as it may deem proper.
      “Each school board shall exercise proper vigilance in securing for the schools of the parish all funds destined for the support of the schools, including the state funds apportioned thereto, and all other funds.
      * * * * *
      “Parish school boards may receive land by purchase or donation for the purpose of erecting school houses; provide for and secure the erection of same, construct such outbuildings and enclosures as shall be conducive to the protection of property, and make repairs and provide for the necessary furniture, equipment and apparatus. All contracts for new buildings, and improvements costing more than one thousand dollars, shall be let to the lowest bidder, the board reserving the right to reject any and all bids.
      “They have the power to recover for any damage that may be done to the property in their charge; they may change the location of a school house, sell or dispose of the old site, or of any site which for any reason can no longer be used or which is unused and unnecessary or unsuitable as such, and use the proceeds thereof for procuring a new one.
      LSA-R.S. 17:81.

      . “[T]he trustees can levy and collect taxes, issue bonds with certain restrictions, hire and fire teachers, make contracts, collect fees, supervise and discipline students, pass on petitions to annex school districts, acquire property by condemnation, and in general manage the operations of the junior college. . . . ”
      397 U.S. at 53, 90 S.Ct. at 794, 25 L.Ed.2d at 49.

      . For example, a state judicial elections need not be conducted in a one-man one-vote manner, Wells v. Edwards, 1973, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679. Bodies whose only responsibilities are for planning and administering local water use may have their electorate limited to landowners. Further, those votes may be weighted according to acreage or assessed property value. Associated Enterprises, Inc. v. Toltec Watershed Improvement District, 1973, 410 U.S. 743, 93 S.Ct. 1237, 35 L.Ed.2d 675; Salyer Land Co. v. Tulare Water District, 1973, 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659.

      . See Appendix, page 1237 post, showing details by Districts.

      . The Director of Research, called by the Board as a witness, testified :
      Q. Now, did your organization assist in the preparation of the fifteen member plan?
      A. Well, we did assist,
      * sis * * :¡:
      They asked, for example, can you draw up a plan which will use this type hypothet * * * “Can you draw up a plan with fifteen members and be sure that all incumbents have a seat from which to be re-elected and takes into consideration certain geographic factors. * * * ”
      And this is what was involved in this fifteen member plan, some of these factors.

      . At the present time, 6 Board members elected under the old ward plan still “represent” certain of the new districts. They will be up for reelection on a staggered basis, 3 in 1974, 3 in 1976.
      The factual accuracy of the following from appellants’ brief is unchallenged :
      Neal Malloy who was elected from old Ward 9 will represent district “A” which is approximately half the size of Ward 9. He will serve until 1976. Joseph Distefano was elected from old Ward 6 and has been assigned district “C”, an area approximately one-fourth the size of Ward 6. He will serve until 1976. L. C. Dupont and Carlysle Marix originally elected from Ward 2 have been assigned district “E”, a mere fraction of the old Ward 2. They will serve until 1976. Walter Marionneaux was elected from Ward 8 and he has been assigned district “L” which includes not only all of Ward 8 but also the large majority of old Ward 6. He will serve until 1974. (One of the incumbents to have been elected in 1976 is now deceased.)

      . No Toney v. White, 5 Cir., 1973, 488 F.2d 310 (en banc), problem exists as this suit was filed in January 1972 attacking the old 9-man system and by subsequent proceedings the new 15-man plan and the election then to be held under it.

       Iberville Parish School Board Statistics Incorporated in resolution of February 8, 1972 adopting new plan R. 58, 60-61.


author: PER CURIAM:

text:
    DEGELOS BROS. GRAIN CORPORATION, Plaintiff-Appellant, v. FIREMAN’S FUND INSURANCE COMPANY OF TEXAS, Defendant-Appellee, Orgulf Transport Company, Intervenor.
    No. 73-3157.
    United States Court of Appeals, Fifth Circuit.
    Aug. 15, 1974.
    Carl W. Cleveland, Murray F. Cleveland, Andrew I. Brown, New Orleans, La., for plaintiff-appellant.
    P. A. Bienvenu, New Orleans, for defendant-appellee.
    Donald R. Abaunza, New Orleans, for Orgulf Trans.
    Robert A. Vosbein, New Orleans, for George Engine.
    Before TUTTLE, WISDOM and GEE, Circuit Judges.
   PER CURIAM:

On this appeal we are asked to determine the date from which interest runs on an amount adjudicated to be due on a fire insurance claim in Louisiana. Because we find that this court has previously reached a different conclusion than did the district court, we remand for modification of the judgment.

Plaintiff, Degelos Bros., carried comprehensive fire insurance with defendant, Fireman’s Fund. On May 22, 1969, a serious fire occurred on premises leased by plaintiff from the Port of New Orleans and used for the processing and storage of grain. Plaintiff notified defendant of its fire loss and by letter of September 29, 1969, submitted an itemized claim in the total amount of $276,769.91. On March 4, 1970, following negotiations, plaintiff received $137,954.58 from defendant, reserving the right to claim for additional losses. On May 13, 1970, plaintiff filed suit in Louisiana state court for $138,815.83, which represented the balance allegedly remaining due under the policy, plus interest from the date of judicial demand. Thereafter, based upon diversity of citizenship, the suit was removed to federal court, and on June 7, 1973, judgment was entered in favor of plaintiff for $88,206.40 plus interest from the date of judgment. Plaintiff’s motion to amend the judgment to allow pre-judgment interest was denied.

On appeal, plaintiff contends (1) that interest should run on the judgment from sixty days after submission of proof of loss or, alternatively, (2) that interest should run from the date of judicial demand. Under its first theory, plaintiff also argues that it is entitled to interest on the prelitigation payment of $137,954.58 from sixty days after proof of loss until its receipt over five months later. Defendant replies that the day of entry .of judgment is the correct date, and especially so because no amount became “due” before then since plaintiff’s proof of loss was not “sworn to by the insured” as required by the policy and La.Rev.Stat. § 22:691. Defendant also asserts that plaintiff waived any claim of interest on the pre-litigation payment.

In a diversity case state law governs the award of interest, 28 U.S.C. § 1961 notwithstanding. Texaco, Inc. v. Lirette, 410 F.2d 1064 (5th Cir. 1969); New Amsterdam Casualty Co. v. Soileau, 167 F.2d 767 (5th Cir. 1948). The parties agree that Louisiana’s is the applicable state law. However, the statutes which both call to our attention are not determinative of the date from which interest runs on an insurance claim. In any event, we are spared the task of original statutory construction or firsthand interpretation of Louisiana cases by our previous decision in Reliance Insurance Co. v. Orleans Parish School Bd., 322 F.2d 803 (5th Cir. 1963). There we held that the relevant Louisiana law remained as expressed by the Louisiana Supreme Court in Gettwerth v. Teutonia Ins. Co., 29 La.Ann. 30 (La. 1877), unaffected by the later lower court holding in Isadore v. Washington Fire and Marine Ins. Co., 75 So.2d 247 (La.Ct.App.1954), cited by the fire insurance claimant there and here:

In Gettwerth, however, the Louisiana Supreme Court expressly held that the interest should have been allowed only from the date of judicial demand, and not from sixty days after proof of loss. Appellee cites Isadore v. Washington Fire & Marine Ins. Co., La. App.1954, 75 So.2d 247, in support of his contention. There a Louisiana court of appeals held that interest should run from sixty days after proof of loss rather than from the date of loss. It is not shown, however, that the insurance company in that case raised before the court the third possibility with which we are here concerned: that interest should run from the date of judicial demand. Gettwerth is, therefore, the only Louisiana case which considers the issue directly. The trial judge did not err in following it. 322 F.2d at 809.

Our reading of Louisiana law in Reliance has not been contradicted by Louisiana courts or made obsolete by statutory enactment. Therefore, we are convinced, and controlled, by our holding therein that interest on a fire insurance claim runs from date of judicial demand in Louisiana.

Because no interest commences until judicial demand, none is chargeable on the pre-litigation payment made more than two months before suit was filed.

Our reiteration that interest runs from the date of judicial demand also determines the rate of interest to be applied. At the time suit was filed, Louisiana Civil Code article 1938 read:

All debts shall bear interest at the rate of five per centum per annum from the time they become due, unless otherwise stipulated.

Prior to judgment this Article was amended to increase the legal rate of interest to 7%. But, as held by Louisiana courts in Womack v. Travelers Ins. Co., 258 So.2d 562 (La.Ct.App., 1st Cir., 1972), and Ducote v. Life Insurance Co., 245 So.2d 531 (La.Ct.App., 3d Cir., 1971), the amendment is not retroactive, and the 5% rate effective on the date the interest begins applies until the judgment is paid.

Defendant’s argument that, because plaintiff’s proof of loss was not sworn to as required by the statutory policy, nothing was “due” until entry of judgment is belated. Failure to comply with requirements for proof of loss, is a defense on the merits which, if it had been established at trial, would have barred the plaintiff from any recovery. Having waived the defense at trial, where the stakes were much higher, defendant will not be heard to assert it on appeal. We, therefore, find it unnecessary to reach plaintiff’s reply that, as a matter of Louisiana law, its proof of loss was sufficient and any objection thereto was waived by acceptance and partial payment.

We hold that the judgment must be modified to provide for 5% interest on the full award of $88,206.40 from the date of judicial demand until paid to plaintiff. We, accordingly, remand to the trial court for such modification of the judgment.

Remanded for modification.

      . La.Rev.Stat. § 22:658 provides for a penalty of 12%, plus attorney’s fees, for the insurer’s arbitrary refusal to pay within 60 days of proof of loss. Plaintiff makes no contention that such penalty should have been imposed; and we find no language in the statute which, even by analogy, helps us discern the date on which interest commences.
      La.Rev.Stat. § 22:691 sets out the Louisiana statutory fire policy which was incorporated into the contract of insurance between the parties. It states that the loss shall be payable sixty days after proof of loss, as therein provided, is received and ascertainment of the loss is made either by written agreement or by filing with the insurer of an award. Nothing, however, is said regarding interest. La.Rev.Stat. § 13:4203 states:
      Legal interest shall attach from the date of judicial demand, on all judgments, sounding in damages, “ex delicto”, which may be rendered by any of the courts.
      Only a judgment based primarily on tort liability is regarded in Louisiana as arising “ex delicto.” Thus, the statute has no application to an “ex contractu” judgment such as this. See Davis v. LeBlanc, 149 So.2d 252 (La.Ct.App., 3d Cir., 1963).
      La.Oiv.Code art. 1938, as amended, provides:
      All debts shall bear interest at the rate of seven percentum per annum from the time they become due, unless otherwise stipulated.
      At the time suit was filed the statutory rate was 5%. But the statute never specified when debts became “due.”


author: TUTTLE, Circuit Judge:

text:
    POLLOCK & RILEY, INC., Plaintiff-Appellee, v. PEARL BREWING COMPANY, Defendant-Appellant. W. H. WOOD, Plaintiff-Appellant, v. GULF OIL CORPORATION, Defendant-Appellee.
    Nos. 73-3771, 74-1661.
    United States Court of Appeals, Fifth Circuit.
    Aug. 15, 1974.
    Rehearing and Rehearing En Banc Denied Nov. 22, 1974.

      Keith E. Kaiser, J. Burleson Smith, San Antonio, Tex., for Pearl Brewing Co.
    James R. Warncke, John Oliver, San Antonio, Tex., for Pollock & Riley, Inc.
    Jack N. Price, Longview, Tex., Allen Moore, Odessa, Tex., Charles M. McDonald, Waco, Tex., for Wood.
    W. B. Edwards, William F. Erwin, Jr., Catherine C. McCulley, Houston, Tex., for Gulf Oil Corp.
    Before TUTTLE, WISDOM and GEE, Circuit Judges.
   TUTTLE, Circuit Judge:

On review are consolidated interlocutory appeals in two civil anti-trust actions. The primary issue before the Court is the appropriateness of advising the jury that under the provisions of 15 U.S.C.A. § 15 any awarded damages would be tripled and a reasonable attorneys’ fee plus the cost of the litigation granted.

FACTS

Prior to the voir dire of the jury and the commencement of the trial, in the first named case, Pollock & Riley, Inc. v. Pearl Brewing Co., the plaintiff-appellee, Pollock & Riley, Inc., filed a motion in limine requesting that the district court instruct the defendant-appellant and all defense witnesses to refrain from referring or alluding to, in the presence of the jury, the treble damage and attorneys’ fee provision of the Clayton Act. The district court granted appellee’s motion. Appellant has entered an appeal from the district court’s interlocutory order under 28 U.S.C.A. § 1292(b) on this single question.

The second suit, Wood v. Gulf Oil Corp., poses three questions determined by an interlocutory order of the district court and appealed under 28 U.S.C.A. § 1292(b). During pretrial matters, the plaintiff-appellant, Wood, filed a motion in limine to restrict any reference at any stage of the trial to the treble damage provision of the anti-trust laws. Defendant-appellee, Gulf Oil Corp., opposed the motion, asking the court to inform the jury of the treble damage provision. The district court denied the motion, ruling that the jury should be so advised. In this same interlocutory order, the district court granted partial summary judgment for the appellee on the question of liability for the loss of future net profits, good will, and the fair market value of the plaintiff’s service station equipment, and denied appellant’s proffer of evidence admitted in the case of Lehrman v. Gulf Oil Corp., 464 F.2d 26 (5th Cir.), cert. denied, 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665 (1972), involving a similar anti-trust suit against Gulf.

TREBLE DAMAGE INSTRUCTIONS

The identical question before this Court in both cases is whether a district court should advise the jury in a civil anti-trust suit of the provision tripling the awarded damages and allowing attorneys’ fees and costs. There is direct conflict in the district court decisions before us- — one district court forbade revelation, and the other ordered that the jury be informed. Having considered the policies and reviewed the authorities carefully, we hold that the jury should not be advised of the mandatory tripling provision of 15 U.S.C.A. §_15.

The primary policy supporting our decision is that underpinning the tripling provision itself. The purpose of treble damages is to deter violations and encourage private enforcement of the anti-trust laws. The justifiable fear of anti-trust plaintiffs is that the juries will adjust the damage award downward or find no liability, therefore thwarting Congress’s purpose, because of some notions of a windfall to the plaintiff. One court has even suggested that a jury might take the revelation of the treble damage provision as an intimation from the court to restrict the amount of damages. In sum, we agree with the Court of Appeals for the Tenth Circuit that informing a jury would serve no useful function and its probable consequence would be harmful — an impermissible lowering of the amount of damages.

Second, it is not for the jury to determine the amount of a judgment. Its function is to compute the amount of damages. Congress’s authorization in 15 U.S.C.A. § 15 to triple the award of damages is a matter of law to be applied by the district court without interference from the jury. The fact that the awarded amount will be tripled has no relevance in determining the amount a plaintiff was injured by the anti-trust violation.

The basic point urged against this holding is jury confusion. It is asserted that the treble damage feature of the anti-trust law has been publicized enough so that jurors might have some knowledge of it. The argument goes that a little knowledge without a complete explanation from the court will result in totally erroneous verdicts and damage awards. Our immediate reaction is that a district court can sufficiently instruct the jury to determine only actual damages. In those cases where an accidental revelation occurs, the court can give curative instructions to alleviate confusion. Cf. Standard Industries, Inc. v. Mobil Oil Corp., 475 F.2d 220 (10th Cir.), cert. denied, 414 U.S. 829, 94 S.Ct. 61, 38 L.Ed.2d 63 (1973).

WOOD v. GULF OIL CORPORATION

In Wood v. Gulf Oil Corp., the plaintiff-appellant is alleging violations of the anti-trust law which give rise to damages at two different times. First, the appellant sets out various actions alleged to constitute anti-competitive practices which occurred while the appellant was doing business as a service station dealer for Gulf Oil Corp. and which gave rise to post losses for plaintiff during this period. Second, the plaintiff alleges specifically that Gulf’s threats not to renew his lease forced him to sell his service station resulting in loss of future profits, good will, and the fair market value of his service station equipment. The district court granted partial summary judgment against the appellant on the latter claim of Gulf’s liability for loss of future profits, good will, and fair market value of the service station equipment. The appropriateness of the granting of the partial summary judgment is now before the Court on interlocutory appeal. We reverse.

Clarification of our holding can be derived from an examination of the district court’s language in its partial summary judgment order. The court first ruled on what issues would be left open for trial:

“The extent of the threats, if any, of the Defendant, the nature of those threats, the period covered by the alleged threats are disputed questions of fact and the Court has determined that if the Plaintiff is able to establish threats to terminate his lease or to refuse to renew same, unless Plaintiff used Gulf accessories and ceased to use accessories of other companies and ceased charging a higher price than the price Gulf wanted retailers to charge, such conduct would constitute anti-trust violations and Plaintiff can recover the damages, if any, he may establish commencing January, 1971 — the day he states the threats commenced — until March, 1972, when he disposed of the station.” (Emphasis added).

Next the district court discussed the issue on appeal:

“The Court is convinced that had Plaintiff waited and had Defendant refused to renew the lease, proof of threats to do so would constitute anti-trust violations and he could have recovered future damages. However, the Plaintiff voluntarily disposed of his equipment and the lease and Defendant never refused to renew it. The mere threat of a refusal to renew the lease does not constitute sufficient grounds for the Plaintiff to dispose of his property and lease and them seek damages. Had Defendant refused to renew the lease, then all of the alleged threats would have been admissible to establish that Defendant refused to renew because Plaintiff used other accessories, charged higher prices for gasoline, etc., which would constitute anti-trust violations. . . . Plaintiff’s conduct was premature if Defendant intended to refuse to renew his lease so far as future profits are concerned.”

If the threats to terminate appellant’s lease can constitute a violation of the anti-trust law for purposes of granting damages for part of the period of occupancy, January, 1971 until March, 1972, then we do not understand why such threats would not constitute a violation of the anti-trust law if they were instrumental in forcing appellant to sell his service station. The antitrust law does not require a plaintiff to retain possession of a business oppressed by anti-trust violation until the business is bankrupted or directly shut down by the violator. Lehrman v. Gulf Oil Corp., supra, 464 F.2d at 45.

We certainly agree with the district court that appellant may have voluntarily disposed of his dealership by sale to his brother, and that there may have been no substantial threats of non-renewal or that the threats did not cause the sale. But this is in dispute, resulting in a genuine issue of material fact regarding Gulf’s liability on this issue, as to whether there were threats and if so, if they caused a forced sale.

The defendant-appellee argues that even if there is a factual dispute on the existence of an anti-trust violation, the partial summary judgment can be affirmed because there were no damages caused by the threats to fail to renew the lease. In essence, appellee contends that the appellant testified in his deposition that he received a fair market value for his service station, therefore, incurring no loss of future profits, good will, or value on his equipment.

We agree with the fundamental point that a plaintiff cannot recover in an anti-trust suit both the difference between the fair market value and the price received at the time of the sale, and the loss of future profits. Albrecht v. Herald Co., 452 F.2d 124 (8th Cir. 1971), mandamus denied, 405 U.S. 1063, 92 S.Ct. 1493, 31 L.Ed.2d 810 (1972); Treble Damages, 80 Harv.L.Rev. at 1566, 1577-86 (1967). In Albrecht, the plaintiff was forced to sell his paper route at less than fair market value because of the defendant’s anti-trust violations. The damage award fell into three categories and was similar to the request in this case:

“(1) Plaintiff’s damage prior to sale, consisting of profits lost in the operation of the business by reason of Globe-Democrat’s competition;
“(2) The difference between the fair market value of plaintiff’s business (with all of his customers intact) at the time of the sale and the actual sale price received; and,
“(3) Loss of future profits following the forced sale.”
Albrecht v. Herald Co., supra, 452 F.2d 126.

The court there thoroughly reviewed the precedents and held item three inapplicable as unjustly allowing double recovery. The court reasoned:

“It is our opinion that the plaintiff has received all permissible damages under items one and two, damages occasioned prior to the sale and the full market value on the sale of his route as a going concern, free of the restrictive practices. This value is figured on the basis of his reconstituted route with all 1200 customers. Fair market value would be that price a willing seller could secure from a willing buyer, and the evidence establishes $24,000 as the maximum price attainable . . . The prospect of future earnings is considered in arriving at the fair market value of a given business. Here, undoubtedly the value of the route rested not in its tangible assets of an old truck and paper wrapper (valued $600), but in the exclusive contract for distribution of a well regarded newspaper in a given area. Whatever that fair market value might be, plaintiff has received it. Capitalizing and discounting future profits is one method of figuring present value, but this does not mean that a person is entitled to present value plus future profits.” Id. at 131.

Similarly in the instant case, if there had been no disputed fact concerning whether appellant received the fair market value for his service station, then the partial summary judgment would have been properly granted. The record and briefs reflect, however, that there is grave doubt whether appellant knowingly admitted receiving a fair market value. For instance, the testimony in appellant’s deposition indicates that he did not know what “good will” was, so that it is improbable that any admission of receipt of a fair market value took into consideration value for good will. Therefore on both the issue of liability and damages, there are disputed issues of material fact which make summary judgment improper.

Concerning the third issue, we find that appeal does not properly lie under 28 U.S.C.A. § 1292(b). The order appealed from is a pre-trial ruling excluding evidence admitted in the case of Lehrman v. Gulf Oil Corp., supra, 464 F.2d 26, which involved a similar antitrust action against Gulf. This issue is not one that constitutes a controlling question of law or one that can possibly advance the ultimate termination of the litigation. Control Data Corp. v. International Business Machine Corp., 421 F.2d 323 (8th Cir. 1970); 9 Moore’s Federal Practice ff 110.22 [2] (2nd Ed. 1973). As the court explained in Control Data, where a similar pre-trial ruling excluding evidence was denied appeal:

“. . . When such issues become ‘ripe,’ the district court trying the case will have the benefit of all factual proof governing the question of relevancy. If an offer of proof is made, the trial court will have the benefit of the complainant’s specific theory as to the use of the evidence and will likewise be able to evaluate the admissibility question on the basis of specific objection made. In this context a trial court will be able to make a ruling and this court will be able to pass upon the merits of a litigated question. Our ruling is in no way intended to undermine the salutary value of the consolidated pre-trial order. . . . However, if in any trial certain evidence precluded by pre-trial order becomes relevant by reason of development of proof at trial, it could be reversible error to blindly adhere to the prior order. In this sense we feel questions relating to admissibility of evidence must always and ultimately relate to the trial court’s actual ruling in view of the record there existing.” 421 F.2d at 327.

This reasoning was also echoed by Moore in his treatise:

“It is necessary, however, that the order involve a clear-cut question of law against a background of determined and immutable facts. For that reason such matters as the sufficiency of pleadings and pre-trial rulings as to the admissibility of evidence are not ordinarily certifiable [under section 1292(b)]. Nor are matters that are entrusted to the discretion of the district court if all that is involved is the manner in which the discretion is exercised.” (Emphasis added). 9 Moore’s Federal Practice jf 110.22 [2] at 261.

The appeal on this issue is dismissed.

The decision of the district court in Pollock & Riley, Inc. v. Pearl Brewing Company, is affirmed; the decision in Wood v. Gulf Oil Corporation, is reversed in part and the appeal is dismissed in part.

      . This provision states :
      “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorneys’ fee.”

      . This conflict is more significant and demanding of a resolution because both decisions are from district courts in the same district, the Western District of Texas.

      . tfee Semke v. Enid Automobile Dealers Association, 456 F.2d 1361 (10th Cir. 1972); Sablosky v. Paramount Film Distributing Corp., 137 F.Supp. 929 (E.D.Penn.1955); Webster Motor Car Co. v. Packard Motor Car Co., 135 F.Supp. 4 (D.D.C.1955), rev’d. on other grounds, 100 U.S.App.D.C. 161, 243 F.2d 418, cert. denied, 355 U.S. 822, 78 S.Ct. 29, 2 L.Ed.2d 38 (1957). Contra Bordonaro Brothers Theaters v. Paramount Pictures, 203 F.2d 676 (2d Cir. 1953); Cape Cod Food Products v. National Cranberry Association, 119 F.Supp. 900 (D.Mass.1954).

      . See Bruce’s Juices, Inc. v. American Can Co., 330 U.S. 743, 751-752, 67 S.Ct. 1015, 91 L.Ed. 1219 (1947); Comment, Private Triple Damage Anti-Trust Suits: Measure of Damages for Destruction of All or Part of a Business, 80 Harv.L.Rev. 1566, 1566-67 (1967) (hereinafter cited as Treble Damages).

      . Webster Motor Car Co. v. Packard Motor Car Co., supra, 135 F.Supp. at 11.

      . Semke v. Enid Automobile Dealers Association, supra, 456 F.2d 1361.

      . One treatise writer explained:
      “Unless the trebling provision is clearly explained to the jury, basic misunderstanding may arise which would result in totally erroneous verdicts and judgments. For example, the jury might accept treble the amount of damages with the effect that plaintiff would recover nine times the amount of the actual damages. Or the jury might divide the amount of damages by three.” Timberlake, Federal Treble Damage Anti-trust Actions, § 19.06 at 281-82. (1965).

      . See Lehrman v. Gulf Oil Corp., 464 F.2d 26, 44-47 (5th Cir.), cert. denied, 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665 (1972); Simpson v. Union Oil Co. of California, 411 F.2d 897, 908-910 (9th Cir.), rev’d. on other grounds, 396 U.S. 13, 90 S.Ct. 30, 24 L.Ed.2d 13 (1969); Lessig v. Tidewater, 327 F.2d 459 (9th Cir.), cert. denied, 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046 (1964); Osborn v. Sinclair Refining Co., 324 F.2d 566, 572-573, n. 9 (4th Cir. 1963).

      . In the instant case, the plaintiff should not be penalized in his recovery of damages, if he can show liability, because he took action, the sale of his service station, which tended to mitigate his damages.

      . The dialogue in appellant’s deposition states:
      “Q. So you decided then to get out?
      A. Correct.
      Q. And you made a deal with your brother?
      A. Right.
      Q. Did your brother buy all your stock and equipment from you?
      A. Yes, sir.
      Q. Did he pay you a fair price for it?
      A. Yes, sir.
      Q. You don’t have any complaint about the price you got for your stock and equipment?
      A. No, sir.
      Q. You realized full value for your stock and equipment?
      A. Yes, sir, by selling it.
      Q. By selling it?
      A. Yes, sir.
      Q. You didn’t lose any money by selling your stock and equipment to your brother?
      A. No, sir.
      Q. Gulf didn’t have anything to do with it, you all made the trade by yourself?
      A. No, we didn’t make a trade, I offered it to him at a certain price, and he accepted it, and we—
      Q. Well, you made a trade, you said, ‘all right, I’ll sell it at this price,’ and he said, ‘O.K., I’ll buy it from you.’?
      A. Correct.
      Q. Whatever the price was, you were both satisfied ?
      A. Right.
      Q. Did you have any good will connected with the station?
      A. What do you mean by good will?
      Q. I don’t know, whatever good will is, do you know what good will is?

        A. Well, good will consists of — anything you want it to consist of, I guess.
      Q. Well, did you have any connected with the station?
      A. No, sir, I sold the station for exactly what I give for it, so I don’t guess there was any good will.
      Q. All right, sir, so you sold it for what you thought was a fair value?
      A. Right.”

      . Of course in determining the fair market value, whether by capitalizing and discounting future profits or estimating loss of good will and the value of the service station equipment, the $10,000 received will necessarily have to be set off.

      . This provision states:
      “When a district judge, in making in a civil action an order not otherwise appeal-able under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order : Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.”


author: INGRAHAM, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Andrew Charles NELSON, Paul Miller Harrison, James Welty and Sandra Welty, Defendants-Appellants.
    No. 73-1451.
    United States Court of Appeals, Fifth Circuit.
    Aug. 2, 1974.
    Harry Lee Hudspeth, El Paso, Tex. (Court-appointed), for Andrew Charles Nelson.
    Pat E. Dwyer, El Paso, Tex. (Court-appointed), for Paul Miller Harrison.
    Marc Prelo, Jr., Albuquerque, N. M., for James and Sandra Welty.
    William S. Sessions, U. S. Atty., San Antonip, Teix., Ralph E. Harris, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and INGRAHAM, Circuit Judges.
   INGRAHAM, Circuit Judge:

Among other contentions asserted on this appeal, defendants Andrew Charles Nelson, Paul Miller Harrison, Sandra Welty and James Welty argue, and we think correctly, that the trial court committed reversible error when it failed to instruct the jury on the presumption of innocence. As early as 1895 the Supreme Court recognized that, if the accused requests an instruction on the presumption of innocence, a court must give such an instruction or the conviction cannot stand. Coffin v. United States, 156 U.S. 432, 15 S.Ct. 394, 39 L.Ed. 481 (1895). We very recently reiterated this view in United States v. Fernandez, 496 F.2d 1294 (5th Cir., 1974). [No. 73-1446, June 28, 1974]. In Fernandez the court was concerned with an instruction almost identical to the instruction in question here. Judge Simpson pointed out there that, since Fernandez had not objected to the court’s omission or requested an instruction, the failure to instruct must constitute “plain error” before the conviction will be reversed. But the court emphasized that the failure to so instruct when requested or when the defendant objects makes out reversible error and the accused is entitled to a new trial.

We are not persuaded by the government’s argument that references to the presumption by the court and counsel throughout the proceedings, from voir dire to closing argument, adequately apprised the jury of the presumption of innocence. These referenees coupled with the court’s detailed instructions on burden of proof properly informed the jury as to the requirement that the government must establish beyond a reasonable doubt all the elements of the alleged crime. But even continual references throughout the proceedings do not sufficiently remind the jury at the conclusion of the evidence that, in determining the guilt or innocence of the accused, it must put away from their minds “all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced.” United States v. Thaxton, 483 F.2d 1071 (5th Cir., 1973), quoting 9 Wigmore on Evidence, § 2511, at 407 (3d Ed. 1940).

Additionally, our review of the record supports the conclusion that the defendants properly objected or requested- an instruction on the presumption. With regard to Nelson and both Weltys, the record discloses that trial counsel submitted to the court a requested instruction on the presumption of innocence. As to Harrison, the record does not diseose an objection or requested instruction, but the particular facts of this case require that this omission be excused. When the court instructed the jury at the close of the evidence, no reference was made to the presumption of innocence. When the jury was taken out of the court room, defense counsel, representing a defendant not involved on this appeal, properly objected. Prompted by this objection the court reread the instruction to counsel, but inadvertently included a statement regarding the presumption of innocence. This mistake created the substantial likelihood that the other attorneys present who might have also entered an objection were misled by the court’s inadvertent inclusion of the additional statement and, therefore, did not object.

We also note the contention of James and Sandra Welty that the trial court failed to properly limit the jury’s use of certain co-conspirator declarations. Those declarations are inadmissible against a defendant not present when they were made until the prosecution, by independent evidence, establishes the conspiracy’s existence, and the absent defendant’s participation in it. Other co-conspirator declarations cannot constitute independent evidence, though the prosecution may use hearsay testimony properly admitted under another exception. The court must clearly and carefully limit the jury’s use of co-conspirator declarations at the time of their admission. Lutwak v. United States, 344 U.S. 604, 618-619, 73 S.Ct. 481, 97 L.Ed. 593 (1953); United States v. Apollo, 476 F.2d 156 (5th Cir., 1973). The trial court’s limiting instruction below did not satisfy these requirements.

The trial court’s failure to instruct the jury on the presumption of innocence despite trial counsel’s diligent attempts to point out the error requires us to reverse as to all appellants.

      . The court’s instructions provide in pertinent part ns follows:
      “I must also warn you that in a criminal case, there is absolutely no obligation of the Defendant to prove his innocence. The burden of proving his or her guilt on any one of the counts in the indictment beyond a reasonable doubt rests solely on the prosecution. That burden never shifts and that burden cannot be sustained unless and until the proof offered by the Government in the case convinces you beyond a reasonable doubt of the guilt of the defendant.
      “I am now required to define ‘reasonable doubt. The term reasonable doubt which is used in this charge means a doubt based upon reason arising out of the evidence or lack of evidence in the case. A reasonable doubt is such doubt as leaves the juror’s mind so undecided that he or she does not have an abiding conviction of the defendant’s guilt after a full and fair consideration of all of the evidence in the case.
      “A reasonable doubt is such doubt ns would cause a reasonable, thoughtful and prudent person to hesitate to act if confronted with a question of importance concerning that juror’s own personal affairs. On the other hand, reasonable doubt does not arise from a mere conjecture, speculation or whim, nor does it arise from a reluctance to convict through a feeling of sympathy or mercy. A reasonable doubt is a conscientious belief arising only after a calm, dispassionate and impartial consideration of all of the evidence. It is not necessary for the Government, however, to prove the guilt of the Defendant beyond all possible or conceivable doubt. If that were the rule, few persons, however guilty they might be would ever he convicted by a a jury. It is practically impossible for a person to be absolutely and completely convinced upon any fact, which by its very nature, is not susceptible to exact and precise mathematical proof and certainty.
      “In consequence, the law is such that in a criminal case it is sufficient that the government establish the Defendant’s guilt on any one count in the indictment beyond a reasonable doubt rather than and not necessarily on all possible or conceivable doubt.
      “It therefore becomes your duty to carefully consider all of the evidence before you, and if as a result of the evidence you can and do entertain a reasonable doubt as to the guilt of any one or more of the accused on any one or more of the counts in the grand jury indictment, then you should so find that defendant innocent and it will be your duty to give the benefit of the doubt to the defendant in any case where you have such doubt.
      “On the other hand if all of the evidencie when carefully examined, weighed and considered by you produces in your mind a conviction or belief of the guilt of any one of the accused in this ease beyond a reasonable doubt, as I have defined the term for you, you may then be said to he free from reasonable doubt and should accordingly return a finding of guilty as to each count on which you have no such reasonable doubt.
      “Xow, bear in mind I again charge and instruct you that the grand jury indictment is not evidence. It is not any evidence whatsoever of guilt, and it must not be considered by you as evidence. The indictment is merely tire means by which the grand jury brings the case before a court and jury so that it can be tried and you can hear and decide the case.
      “However, in conclusion and summary, I want to fell you that this is of course the crux of the case, if the Government has established each and all of tire essential elements as I have given them to you contained and charged in the grand jury indictment beyond a reasonable doubt as to any one or more of the defendants, then you should find that defendant, or those defendants guilty on that particular count. On the other hand, if you find that the Government has not established or lias failed to establish each and all of the essential elements in any one of such counts of the indictment beyond a reasonable doubt as to any defendant, then you should acquit that defendant and say so by your verdict of not guilty as to that particular count in the indictment.”