text:
    UNITED STATES of America, Plaintiff-Appellee, v. Russell J. MOORE, Defendant-Appellant.
    No. 74-1433.
    United States Court of Appeals, Fifth Circuit.
    Dec. 19, 1974.
    Rehearing Denied Jan. 24, 1975.

      Denis A. Dean, Miami, Fla. (Court-appointed), for Moore.
    Robert W. Rust, U. S. Atty., J. Daniel Ennis, Asst. U. S. Atty., Miami, Fla., William McD. Miller, Washington, D. C., for plaintiff-appellee.
    Before BROWN, Chief Judge, and AINSWORTH and DYER, Circuit Judges.
   AINSWORTH, Circuit Judge:

This appeal stems from a loan brokerage swindle that resulted in a 29-count indictment against 17 defendants. We deal here, however, only with the conviction of appellant Russell Moore on 21 counts of fraud by mail (18 U.S.C. § 1341), fraud by wire (18 U.S.C. § 1343), interstate transportation of a check taken and converted by fraud (18 U.S.C. § 2314) and conspiracy to commit such offenses (18 U.S.C. § 371). Moore’s conviction resulted in an 8-year prison sentence and a $7,000 fine. We affirm.

I.

The jury trial below commenced on November 12, 1973, and the jury returned its verdicts on December 10, 1973. The trial produced in excess of 2,800 pages of transcript while hearing evidence and testimony from some 40 witnesses. We will not attempt to set forth all the evidence, but rather we will summarize it with emphasis on Moore’s part in the scheme.

The defendants’ plan utilized paper corporations in Canada and the United Kingdom, and stemmed from the tight credit situation in the United States in 1970-1971. During this period, businessmen and developers in this country were often unable to obtain substantial loans from conventional lending sources for the purpose of expanding present enterprises or embarking on new ones. The effect of this conventional loan shortage was an active search by prospective borrowers for new lending sources. Loan brokers began doing a brisk business of locating available sources of money and bringing together borrower and lender. For their services, these brokers would receive a fee, usually a percentage of the loan received.

The proof at trial, taken in the light most favorable to the Government, indicated that the scheme was to represent certain defendants as being loan brokers able to persuade a substantial company to loan funds to “qualified” borrowers. Various borrowers (more than 20) contacted the brokers who would indicate that they were in contact with a lending source, and that the company was interested in the borrower’s proposed project. At the time a borrower made an application for a loan with the brokers, the borrower was required to place one half the total brokerage fee in escrow pursuant to written agreement. Russell Moore was President of United Title and Escrow, and acted as escrow agent in approximately 20 deals. A few days after application and deposit of the first half of the fee in escrow, the borrower would be contacted and told that a loan commitment had been arranged. Only after the borrower paid the rest of the brokerage fee into escrow would he be given the name of the company issuing the loan commitment. The escrow agreement all provided that upon issuance of a loan commitment, the escrow account would terminate and Moore would disburse the escrow money to the brokers.

The arrangement had every appearance of commercial reasonableness and regularity, and attracted reputable businessmen from throughout the country. The nub of the scheme, however, was that the conspirators had set up a paper corporation, Anglo-Canadian Group, Ltd. (a Canadian corporation), to issue, the loan commitments. While all the borrowers were assured that Anglo-Canadian had assets in excess of $100 million, Anglo-Canadian’s chief asset was a telephone number in Montreal; Anglo-Canadian’s loan commitments were worthless. Thus, for example, one borrower, United States Capital of Ohio, paid the conspirators a total of $120,000 to obtain a valueless loan commitment for $3 million. Predictably, neither United States Capital nor any of the other borrowers obtained interim financing on the strength of Anglo-Canadian’s meaningless loan commitment. Failing to receive their loans as planned, the frustrated borrowers would return to Moore, demanding their money back. Moore would proclaim that he was merely a neutral intermediary who had nothing to do with the loan transaction, and point out to the enraged businessmen that the escrow contract was drawn up to terminate when a loan commitment was received, and not when a loan was actually obtained.

II.

Although Moore was not the only escrow agent involved in this scheme, a total of $487,500 was placed into the escrows for which Moore was escrow agent. There was testimony at trial indicating that Moore was to receive 10 per cent of all monies placed in escrow with him. More than 20 times, Moore acted as escrow agent for businessmen securing commitments from Anglo-Canadian. Each time, the borrowers returned to Moore, demanding their money back because Anglo-Canadian’s loan commitment was valueless. Moore contended at trial and on appeal that he was acting only as an independent escrow agent, and had no connection with this scheme. His appeal asserts two bases for reversal: (1) the evidence was insufficient to sustain Moore’s conviction on any count of the indictment, and (2) the trial court erred in allowing hearsay testimony to be heard by the jury without the cautionary instruction required by United States v. Apollo, 5 Cir., 1973, 476 F.2d 156.

A. Sufficiency of the Evidence

Based merely on the evidence we have already adverted to, a jury could reasonably conclude that Moore played an active role in the conspiracy, and that he was not a passive and neutral bystander. But there was additional evidence on which the jury could base its conviction. One witness testified that he observed changes being made in the documents relating to Anglo-Canadian loan commitments in Moore’s office under Moore’s direction. Testimony indicated that Moore assured numerous borrowers that Anglo-Canadian had assets in excess of $100 million, giving some of them a company balance sheet to this effect which was totally without foundation. At one meeting, an attorney for a borrower informed Moore that the borrower’s bank had checked out Anglo-Canadian and found it to be “nothing but an office or two and a telephone or two.” Not only did Moore tell the attorney that some mistake must have been made, but he also continued to act as escrow agent in similar situations after receiving this information about Anglo-Canadian. In fact, in a later deal, he assured one borrower that he (Moore) had no reason whatever to doubt that Anglo-Canadian was not what it purported to be.

Taking the evidence in the light most favorable to the Government, we have no hesitation in finding that a reasonable jury could conclude that this evidence is inconsistent with the hypothesis of Moore’s innocence. United States v. Warner, 5 Cir., 1971, 441 F.2d 821, 825, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58. Moore contends that where the case rests on circumstantial evidence, we must take special pains to assure that every hypothesis of guilt is excluded. While some Fifth Circuit cases have suggested that there is a more stringent testing of the sufficiency of the evidence in cases relying on circumstantial evidence, this Court has since stated that “[t]he same test for judging the sufficiency of the evidence should apply whether the evidence is direct or circumstantial.” United States v. Warner, supra, 441 F.2d at 825; see 2 C. Wright, Federal Practice and Procedure § 467, at 258-259. Subsequent cases have made clear that the proper test in all cases is not whether the trial court or the appellate court is able to find the evidence inconsistent with every hypothesis of innocence, but whether a reasonably minded jury could so conclude. Regardless of verbiage and the semantics involved in stating the proper test, we have concluded that there was clearly sufficient evidence for a jury to conclude beyond a reasonable doubt that Moore was an active participant in this sophisticated scheme and is guilty of the charges against him.

B. Lack of a Cautionary Instruction

Moore relies solely on United States v. Apollo, 5 Cir., 1973, 476 F.2d 156, for the proposition that the trial judge committed reversible error in failing to give a cautionary instruction to the jury regarding hearsay testimony, to the effect that coconspiratorial hearsay was inadmissible against persons other than the declarant until such time that the conspiracy was established by nonhearsay testimony. Failure to give such an instruction led to reversal in Apollo. Apollo involved a case where the record was “replete with extrajudicial statements” and where the court permitted “a vertiable flood” of hearsay testimony. 476 F.2d at 163. When the first of this hearsay was offered, “the defendant promptly objected to its introduction without a proper cautionary instruction.” Id. (emphasis added); see also id. at 163-164. Moreover, the trial judge in Apollo not only failed to give a requested cautionary instruction, “but further stated in the presence of the jury that ‘connection with conspiracy must of necessity be established by some hearsay in this kind of case.’ ” 476 F.2d at 163.

The present case differs from Apollo in at least three important respects. First, Apollo addresses the prejudice resulting from hearsay. While Moore’s counsel made over 50 objections to testimony, claiming it to be hearsay, our own review of the record reveals that most of these did not in fact involve hearsay. For example, counsel objected when witnesses testified that Moore was present at certain meetings, that Moore told them Anglo-Canadian was a substantial company, and that Moore assured them he would look into certain matters. These extrajudicial acts and statements were not introduced to prove the truth of the matter asserted; rather, they constituted direct evidence of Moore’s activities and involvement in specific transactions, or his knowledge of facts otherwise established. Not every reference to an out-of-court statement constitutes hearsay. Cf. United States v. Frank, 2 Cir., 1974, 494 F.2d 145, 155. Thus, Apollo is inapplicable here because the objections concerned direct evidence which was properly admitted by the trial court.

Apollo is also distinguishable in that, in the present case, Moore’s counsel failed to make a timely request for a cautionary instruction. Not until the Government’s case was nearly complete, and after the trial had progressed through almost 1,600 pages of transcript, did counsel make a request for a cautionary statement to the jury. The effect of this failure to timely request an instruction is that we can reverse Moore’s conviction only if the court’s failure to give the instruction sua sponte constitutes plain error which significantly and substantially prejudiced Moore. Fed.R.Crim.P. 52(b). There was no plain error here. Apollo may establish that a cautionary instruction must be given if properly requested; it clearly does not require an instruction where none is requested. As this Court has already held in United States v. Jimenez, 5 Cir., 1974, 496 F.2d 288, 291, we conclude that unless manifest prejudice is shown, failure to timely request an Apollo instruction precludes a finding of error on appeal.

More to the point, however, is the fact that there has been and can be no showing by Moore of any prejudice resulting from the failure in this case to give a cautionary instruction to the jury. Moore’s counsel conceded at oral argument that the conspiracy was adequately established by independent evidence. We have concluded on our own review of the evidence that Moore was definitely linked to the conspiracy by nonhearsay evidence. Thus, the jury was entitled to impute the words and actions of coconspirators to each other without limitation. What Moore requests is that we reverse his conviction because the trial court failed to give an instruction which at best was superfluous. It would seem to be harmless error, if error at all, for a court to fail to limit a jury’s consideration of hearsay testimony when the evidence al-iunde strongly indicates both the existence of a conspiracy and a defendant’s participation therein. In such circumstances, the jury may impute acts and statements to coconspirators without restriction, and a cautionary instruction turns out to be a meaningless gesture.

Our conclusion that Moore suffered no prejudice at trial is buttressed by the fact that in this case, unlike Apollo, the trial judge was careful to avoid the prejudice to defendants possible in complex conspiracy trials. Judge King carefully limited the admissibility of witnesses’ statements, struck testimony he found to be irrelevant or overly prejudicial, and even excused one witness when the court determined that the prejudice inherent in the witness’ testimony far outweighed the probative value of the evidence. Such facts negate the possibility that the jury was empowered to use testimony in an unrestrained manner in reaching its verdict.

For these reasons, we conclude that there was no error in the failure to give a cautionary instruction, and that Apollo is not applicable to this appeal. Thus, we do not reach the Government’s contention that it is unwise for trial courts to give cautionary or limiting instructions at the time evidence is introduced subject to subsequent connection to a conspiracy or a coconspirator.

Affirmed.

      . Another person acting as an escrow agent, William Smith, was convicted with Moore on 8 counts and sentenced to 10 years’ imprisonment and a $10,000 fine. Smith’s appeal was dismissed after he took up residence in Costa Rica.

      . A loan commitment was described at trial as a guaranty that, upon completion of a project or development, a lender would give the borrower/developer a permanent mortgage. The loan commitment was thus to be used to repay construction loans obtained initially from sources other than the institution issuing the loan commitment. The borrowers hoped to obtain the interim loans or construction financing on the strength of the loan commitment.

      . See, e.g., Barnes v. United States, 5 Cir., 1965, 341 F.2d 189, 192; Newsom v. United States, 5 Cir., 1962, 311 F.2d 74, 78; Riggs v. United States, 5 Cir., 1960, 280 F.2d 949, 955.

      . See, e.g., United States v. White, 5 Cir., 1974, 493 F.2d 3, 7; United States v. Jeffords, 5 Cir., 1974, 491 F.2d 90; United States v. Polite, 5 Cir., 1974, 489 F.2d 679; United States v. Stephenson, 5 Cir., 1973, 474 F.2d 1353; United States v. Sidan-Az-zam, 5 Cir., 1972, 457 F.2d 1309; United States v. Garza, 5 Cir., 1970, 426 F.2d 949; United States v. Andrews, 5 Cir., 1970, 427 F.2d 539.

      . In Jimenez, the Court further noted that the jury liad been properly instructed both on the conspiracy issue and on the use of a coconspirator’s hearsay testimony. 496 F.2d at 291 & n. 6. Although the charge to the jury is not contained in the record on appeal, we must assume that the jury was properly charged in that no instruction is challenged on appeal.

      . In this regard, we note that Apollo was a weak ease in which excessive, uncautioned hearsay testimony likely created substantial prejudice. As Judge Clark noted in Apollo, “It cannot be gainsaid that the viable evidence in this case was skimpy.” 476 F.2d at 162.


source: Caselaw Access Project

author: THORNBERRY, Circuit Judge:

license: Public Domain

text:
    ST. LOUIS SOUTHWESTERN RAILWAY CO., Plaintiff-Appellee, v. GARVEY ELEVATORS, INC., Defendant-Appellant.
    No. 74-1141.
    United States Court of Appeals, Fifth Circuit.
    Dec. 18, 1974.
    James B. Barlow, Jay S. Garrett, Ft. Worth, Tex., for defendant-appellant.
    Mark Alan Calhoun, Dallas, Tex., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and GODBOLD, Circuit Judges.
   THORNBERRY, Circuit Judge:

Garvey Elevators, Inc. (“Garvey”), acting in effect as a broker, purchased thirty carloads of corn from the St. Louis Grain Company, and resold the grain to Rite Care Corporation (“Rite Care”). St. Louis Southwestern Railroad (“the Railroad”) loaded the grain in East St. Louis, Illinois and regular bills of lading were issued listing the cargo’s destination as Tenaha, Texas, and its owner as Rite Care. The bills indicated that the route from St. Louis would be along Southwestern’s track to Shreveport and thence to Tenaha along the tracks of the Southern Pacific. When the cars carrying the corn arrived in Tenaha, where Rite Care had only a post office box, the Railroad’s agent, acting on his own, diverted the shipment to Rite Care’s plant approximately one mile south of Tenaha. This movement requir * that the cars be switched to the tracks of the Atchison, Topeka and Santa Fe Railway. Garvey paid the freight charges for the run from East St. Louis to Tenaha, but some time later the Railroad issued “corrected” waybills to which an additional charge had been added for the one mile diversion along the Santa Fe’s tracks to the Rite Care plant. Only upon receiving these additional charges did Garvey become aware of the diversion. Consequently, Garvey refused to pay the extra charges; the Railroad then brought this suit to recover them. The district court, upon receiving the jury’s answers to the two special issues upon which the ease had been submitted, entered judgment for the Railroad. We reverse.

The only disputed issue is the interpretation of the bills of lading contract regarding where the shipments were to be delivered. The bills themselves clearly designate Tenaha as the cargo’s destination. The Railroad nevertheless argues that a “custom and practice” existed to the effect that Rite Care always wanted grain shipments brought directly to its plant south of Tenaha. It urges, therefore, that it delivered the grain to its correct destination and is required by law to collect the full freight charge specified in the applicable tariff. Garvey contends (1) that no such custom was proved; (2) that even if it were, they had neither actual nor constructive knowledge of it; and (3) that a carrier can lawfully divert a shipment from its designated destination only when it receives an authorized diversion order or diversion bill of lading.

Initially, there is no substance to the Railroad’s attempt to make a “strict liability” argument that it is required by law to collect the disputed freight charges. Admittedly, all lawful and authorized charges must be collected according to the terms of the tariff, even if the carrier, for example, inadvertently represents that the charge is less than it actually is. See, e. g., Union Pacific Railroad Co. v. United States, Ct.Cl. 1974, 490 F.2d 1385, 1391; Chicago, Burlington and Quincy Railroad Co. v. Ready Mixed Concrete Co., 8th Cir. 1973, 487 F.2d 1263; Southern Pacific Co. v. Miller Abattoir Co., 3 Cir. 1972, 454 F.2d 357, 359. This principle has never been understood to mean, however, that carriers are entitled to recover the charge set by the tariff even if the carriage is unauthorized or illegal. See Mars Express, Inc. v. David Masnick, Inc., 2nd Cir. 1968, 401 F.2d 891; cf. Trans Ocean Van Service v. United States, 1973, 470 F.2d 604, 615, 200 Ct.Cl. 122 (“A contract involves mutuality, and it would be inconsistent with this principle to permit the plaintiff to increase the amount of the line-haul charge merely by selecting unilaterally a warehouse located in a State different from the destination State agreed upon by the parties” in the bill of lading); Southern Pacific Co. v. Brown, Alcanter & Brown, Inc., 5th Cir. 1968, 404 F.2d 187, 191 (“. . . Commodity prepaid the freight to El Paso, the place of destination . Commodity did not know of a shipment beyond El Paso, gave no order for such a shipment, and received no notice that such a shipment was to be or had been made. Commodity has no liability beyond El Paso under its contractual undertaking in the bill of lading”). Because the Railroad is required by law to collect the freight charge specified in the tariff only for authorized carriage, here it needed to prove that the bills of lading contemplated shipment to Rite Care’s plant and not just to Tenaha.

At trial the Railroad attempted to do this by proving that the plain words of the bills were modified between the parties by a custom that Rite Care desired delivery of grain at its plant and not at Tenaha. Although the evidence of this alleged custom was hardly overwhelming, the jury answered YES to this issue :

SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that at the time of the shipments involved herein there was a custom and practice that consignee, Rite Care Corporation, always desired delivery of its railway hopper cars to Rite Care, Texas [L e. Rite Care’s plant south of Tenaha] ?

On the other hand, they answered NO to the only other issue submitted to them:

SPECIAL ISSUE NO. 2
Do you find from a preponderance of the evidence that Garvey Elevators knew or should have known of the custom and practice, if any?

Both parties moved for judgment on the verdict, but the District Judge, for reasons not specified in the record, entered judgment for the Railroad.

Appellee now contends that Garvey’s knowledge or ignorance of the custom is irrelevant. The Railroad cites no authority for this proposition, however, and offers no explanation for why the district court would submit an “irrelevant” issue or why as plaintiff it made no objection to the issue. In fact, contrary to the Railroad’s position, all authorities agree that for a party to be bound by a custom or trade usage that modifies or supplants a written agreement, that party must have actual or constructive notice of the custom or usage. See, e. g., PSG Co. v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 9th Cir. 1969, 417 F.2d 659, 662 n. 7, cert. denied, 397 U.S. 918, 90 S.Ct. 924, 25 L.Ed.2d 99; Belcher v. Birmingham Trust National Bank, N.D.Ala.1968, 348 F.Supp. 61, 126; 3 A. Corbin, Contracts § 557, at 246-247 (1960); Uniform Commercial Code § 1-205(3) and comment 7. Since the jury in this case found that Garvey neither knew nor should have known of Rite Care’s customary practice regarding grain shipments, the plain words of the bill of lading control. Consequently, the Railroad possessed no authority to carry the cargo past Tenaha without a diversion order. Its suit for the recovery of the freight charges on this unauthorized carriage must therefore fail.

Accordingly, the judgment is reversed and the cause remanded for entry of judgment on the verdict for defendant-appellant, Garvey Elevators.

      . Appellees cite in particular 49 U.S.C. § 6(7), which forbids rate discrimination by rail carriers subject to the Act, and 49 U.S. C. § 6(10), which prescribes criminal penalties for such discrimination.

      . At least this is tiie most reasonable reading of tiie record below. In their brief and during oral argument tiie Railroad put forward two modifications of this theory. First, it points out that the bills of lading provide that “carrier . . . agrees to carry to its usual place of delivery at said destination.” Since tiie jury found that Rite Care customarily expected delivery at its plant, the Railroad argues that it delivered at the “usual place of delivery” in accordance with the contract. Second, and as a slight variation of tiie first argument, tiie Railroad apparently contends that all the parties to tiie transaction intended Rite Care’s plant to be the actual place of delivery.
      Regarding the first contention, appellees obviously choose to ignore the words “at said destination.” The phrase obligates the carrier to deliver to the usual place at the destination specified in the bills; it does not authorize the carrier unilaterally to choose a new destination. On the other hand, the evidence itself renders the Railroad’s second contention dubious: Garvey denied any such intent; the bills of lading do not mention the Atchison, Topeka and Santa Fe Railway; and the additional charge claimed by the Railroad for the diversion to Rite Care’s plant is greater than Garvey’s profit on the entire shipment. In any event, the Railroad bore the burden at trial of requesting issues and instructions in support of these theories.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jesus SALDANA, Jr., Defendant-Appellant.
    No. 74-2740
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 20, 1974.
    Robert W. Dupuy, Corpus Christi, Tex. (Court-appointed), for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Edward B. McDonough, Jr., James R. Gough, Ann E. Stool, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

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

   PER CURIAM:

Appellant, Jesus Saldana, Jr., pled guilty to possessing with intent to distribute 64 pounds of marijuana in violation of 21 U.S.C. § 841(a)(1). In this appeal he seeks reversal of - his conviction alleging he was not informed of the consequences of his plea, he was denied his right to a speedy trial, and he had ineffective counsel. A review of the record reveals these allegations to be without merit.

Appellant was arrested on February 28, 1973, indicted on April 17, 1973, arraigned and pled guilty on May 20, 1974, and sentenced on July 21, 1974. At the time of his arraignment and plea, appellant was incarcerated in LaTuna Correctional Institute for a narcotics offense subsequent to the one at bar. Before accepting appellant’s plea the court advised him of his rights, inquired into the facts surrounding the offense, and vigorously questioned him to determined if his plea was free and voluntary.

Appellant now alleges he was not informed of the full consequences of his guilty plea as required by F.R.Cr.P. Rule 11 because he was not told any sentence imposed by the court would be consecutive to the sentence he was presently serving. This argument is without merit. In Tindall v. United States, 5 Cir., 1972, 469 F.2d 92, we considered a similar argument regarding a federal sentence which was to follow a state sentence. We said the rule requires the judge to advise the defendant of the maximum sentence possible, but there is no requirement to advise a defendant of every “but for” consequence which follows from a guilty plea. Here the judge advised Saldana of the maximum sentence possible and carefully questioned him to determine that the plea was voluntary. The court fulfilled the requirement of Rule 11.

Appellant’s next contention, that he was denied a speedy trial because of the 13 month delay between indictment and arraignment, is also without merit. The issue of the right to a speedy trial is non-jurisdictional in nature. Karcher v. Wainwright, 5 Cir., 1973, 476 F.2d 179. A guilty plea, since it admits all the elements of a formal criminal charge, waives all non-jurisdictional defects in the proceedings against a defendant. United States v. Bendicks, 5 Cir., 1971, 449 F.2d 313; Gafford v. United States, 5 Cir., 1971, 438 F.2d 106. Appellant has waived the right he now seeks to assert.

Finally appellant argues his counsel was ineffective because he did not move to have the charges dismissed on the speedy trial issue. A review of the record reveals that counsel had discussed the plea with appellant, that he had not promised him anything, that he had not coerced him into the plea, and that appellant knowingly possessed the marijuana. At sentencing it was revealed the attorney had filed a motion to dismiss, but had waived it because defendant wanted to get the case over with. Counsel met the standard of Lamb v. Beto, 5 Cir., 1970, 423 F.2d 85, by insuring that the plea was knowing and voluntary.

A review of the record reveals no errors of law. The conviction and sentence are affirmed.


text:
    Charles GANDY, by his grandmother and next friend, Eunice G. Gandy, Plaintiff-Appellant, v. PANAMA CITY, FLORIDA, a Municipal Corporation, J. W. Duncan, et al., Defendants-Appellees.
    No. 74-3377
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 23, 1974.
    Jerry W. Gerde, Franklin R. Harrison, Panama City, Fla., for plaintiff-appellant.
    Rowlett W. Bryant, Panama City, Fla., for defendants-appellees.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

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

   PER CURIAM:

Plaintiff Gandy, 15 years old, brought this § 1983 action for compensation and punitive damages against the City of Panama City, Florida, various city officials, and city police officers for alleged “violations of his rights and privileges and immunities guaranteed by the United States Constitution, and its Amendments.” The principal theory of the action involved an allegation of excessive force in the arrest of Gandy for four motorcycle traffic offenses. We affirm the dismissal of the complaint on motion as to all defendants but the arresting officer, and affirm the summary judgment against plaintiff as to him.

The district court dismissed the complaint on motion as to all parties except police officer J. W. Duncan. The complaint was dismissed as to the City of Panama City on the authority of City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), and as to police officer Clay on the ground that the participation of Clay was simply insufficient as a matter of law to sustain § 1983 action. Gandy does not challenge these rulings on appeal. He does, however, contest the dismissal as to the Mayor, City Commissioner, and Chief of Police. We agree with the district court that the plaintiff’s complaint did not state a § 1983 action as to these officials. See Anderson v. Nosser, 438 F.2d 183, 198-199 (5th Cir. 1971).

As to officer Duncan, the sole remaining defendant, the court, finding no genuine issue of material fact, granted Duncan’s motion for summary judgment on the pleadings, affidavits, and depositions. We affirm.

The controlling facts are undisputed. On June 22, 1973, defendant Duncan observed the 15 year old plaintiff operating a motorcycle at an excessive rate of speed and gave prompt and immediate pursuit; however, he was unable to stop Gandy before his arrival and entry into his grandmother’s home. Duncan entered the grandmother’s house, handcuffed the plaintiff, and then transported him in the patrol vehicle to the booking room of the Panama City police station. Gandy was formally given a uniform traffic citation for the following offenses: (1) operating a motor vehicle of greater horsepower than that permitted by the operator’s driving license; (2) operating a motor vehicle with an improper license plate; (3) reckless driving; and (4) eluding a police officer. This citation was signed by Gandy on his own representation that he would appear before the court on the offenses at the time and place stated. He was then transferred from the Panama City police station by the juvenile officer to the Division of Youth Services for the offense of eluding a police officer, over which the municipality did not have jurisdiction. Thereafter, the plaintiff entered a plea of guilty to operating a motor vehicle of greater horsepower than permitted by his license and operating a motor vehicle with an improper license plate. The other charges were dismissed.

We agree with the district court that the handcuffing and transporting of Gandy in the cage of the patrol car under the facts of this case do not make out a case of constitutional proportions required by § 1983. Before this arrest, Gandy had been arrested by the City on approximately five occasions and was known to the arresting officer.

Plaintiff argues that defendant Duncan’s treatment of him in arresting him and carrying him to the police station for booking violated the procedural safeguards for juveniles provided in Florida Statute § 39.03(3). Even if the plaintiff were correct as to the violation, noncompliance with this statute violates no federally protected right. Cf. Adams v. Wainwright, 445 F.2d 832 (5th Cir.), cert. denied, 404 U.S. 860, 92 S.Ct. 160, 30 L.Ed.2d 103 (1971).

After considering the record in this case, we find no error in the decision of the district court that there is no genuine issue of any material fact, and that plaintiff has failed to show a violation of his constitutional rights.

Affirmed.


text:
    Yvonne Marie BOYD et al., Plaintiffs, United States of America, Plaintiff-Intervenor-Appellant, v. POINTE COUPEE PARISH SCHOOL BOARD et al., Defendants-Appellees.
    No. 71-3305.
    United States Court of Appeals, Fifth Circuit.
    Dec. 10, 1974
    David L. Norman, Asst. Atty. Gen., U. S. Dept, of Justice, Washington, D. C., Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., Norman J. Chaehkin, New York City, Murphy W. Bell, Baton Rouge, La., for plaintiff-appellant.
    John F. Ward, Jr., Baton Rouge, La., Samuel C. Cashio, Dist. Atty., Marin-gouin, La., for defendants-appellees.
    A. M. Trudeau, Jr., New Orleans, La., Murphy W. Bell, Baton Rouge, La., Jack Greenberg, Norman J. Chaehkin, New York City, amici curiae.
    Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
   PER CURIAM:

This school desegregation case has had a long and tortuous career, proee-durally in the courts and out where the people live. The latest Court Order, from which the United States appeals, is reported, Boyd v. Pointe Coupee Parish School Board, 332 F.Supp. 994 (D.C.La. 1971). The District Court denied an application for supplemental relief, on the ground' that the school system had become unitary.

As of the entry of the Order, eight of the ten schools in the system did not meet Singleton ratio requirements [419 F.2d 1211 en banc (5 Cir., 1970)]. In one attendance area there was an all black school and another that was virtually all white.

We, therefore, must hold that the Pointe Coupee school system had not attained unitary status and that the Order of the District Court in this respect must be reversed, Ellis v. Board of Public Instruction of Orange County, Florida, 5 Cir., 1970, 423 F.2d 203; Mays v. Board of Public Instruction of Sarasota County, Florida, 5 Cir., 1970, 428 F.2d 809; Lemon v. Bossier Parish School, 5 Cir., 1971, 444 F.2d 1400; Beaumont Independent School v. Department of Health, Education and Welfare (1974) 855 F.2d 504.

A thumbnail sketch of prior events in this District may help put the case in more meaningful focus.

The schools of the Parish first came under the desegregation process in 1969. There was a mass exodus of white students to private schools. Public school attendance during the ensuing years has been as follows:

Year White Black
1968- 69 2375 3643
1969- 70 68C No statistics
1970- 71 1232 3857
1971- 72 1234 3688
1972- 73 1535 3715
1973- 74 1573 3606
1974- 75 1605 3546

Thus, from the attendance low of 680 in 1969-70, white enrollment in five years has increased by approximately 250%, although it yet remains 770 below what it was when the desegregation process was begun. In any event, progress is obvious.

Statistics supplied for 1974-75 reveal the presence of three all black schools: LaBarre Elementary, 104 to 0; Rosen-wald High, 1253 to 0; and St. Alma Elementary, 137 to 0. The other six schools are well integrated.

At Upper Pointe Coupee School, Grades K to 12, current statistics indicate that thirty classes are all black and thirteen are totally white, or almost so. This appears to be the result of a “track system” for pupil class assignment, but segregation by classroom is generally impermissible.

Our attention is directed to the fact that one of the schools is in a remote area of the Parish, separated from the remainder of the Parish by the Atchafa-laya River swamp. The District Court will be entitled to examine the facts in this regard and to shape its remedy in the light of any unreasonable burdens as to this particular school.

The problems as to Singleton ratios appear to be mostly, if not altogether, solved. There are other plans afoot for improving the educational situation in the Parish, but we do not know what progress has been made.

The judgment of the District Court is reversed and the cause remanded for such further proceedings as may be reasonably necessary to bring Upper Pointe Coupee to unitary status.

Reversed and remanded.


author: COLEMAN, Circuit Judge:

text:
    UNITED STATES of America et al., Plaintiffs-Appellees, v. STATE TAX COMMISSION OF the STATE OF MISSISSIPPI et al., Defendants-Appellants.
    No. 73-3034.
    United States Court of Appeals, Fifth Circuit.
    Dec. 13, 1974.

      James Holmes Haddock, Jackson, Miss., Carl F. Andre, A. F. Summer, Atty. Gen. of Miss., Jackson, Miss., for defendants-appellants.
    Robert E. Hauberg, U. S. Atty., James B. Tucker, Asst. U. S. Atty., Jackson, Miss., Wallace H. Johnson, Asst. Atty. Gen., Lands Div., Larry G. Gutterridge, Jacques B. Gelin, Dept, of Justice, Washington, D. C., for plaintiffs-appel-lees.
    Before COLEMAN, CLARK and RO-NEY, Circuit Judges.
   COLEMAN, Circuit Judge:

This is an appeal by the Mississippi State Tax Commission and the Sheriff of Neshoba County from a judgment granting a permanent injunction against the assessment and collection of sales and contract taxes from the Mississippi Band of Choctaw Indians, the Chata Development Company, and the Choctaw Housing Authority. The District Court held that under the federal Constitution and a state exemption hereinafter described the Tribe and its instrumentalities were exempt from such taxes.

We reverse, with directions to dismiss the complaint for lack of jurisdiction.

FACTS

In 1965, to take advantage of low rent federal housing programs, the Mississippi Band of Choctaw Indians acted to establish the Choctaw Housing Authority.

In 1968, the Mississippi Legislature specifically exempted from sales tax “sales to the Mississippi Band of Choctaw Indians, but not to Indians individually”, Section 8, Chapter 588, Miss.Laws, 1968. Exempting one group from the payment of taxes which other groups are required to pay, with no rational basis stated, raises substantial “equal protection” specters. For the purposes of this litigation the validity of the exemption is assumed, but that is an assumption only. In any event, the statutory exemption was granted solely to “the Mississippi Band of Choctaw Indians”, with nothing said as to any separately identifiable agencies or subsidiaries or instrumentalities of the Band.

In 1970, at the request of the “tribal council”, the Chata Development Company was incorporated under the laws of Mississippi as a non-profit corporation but for the purpose of engaging in certain aspects of the construction business [Chata is an ancient method of spelling “Choctaw”].'

In 1971, Chata made a contract with the Choctaw Housing Authority to build some fifty houses for $696,772. On September 9 of that year the Tax Commission instructed Chata to file a return and pay the sales taxes required of a contractor. The “tribal council” replied by letter, claiming the benefit of the 1968 exemption.

In October, the Tax Commission informed Chata that neither it nor the Housing Authority (as distinguished from the Mississippi Band of Choctaw Indians) were exempt from sales tax on purchases and filed its notice of tax lien and judgment in the sum of $19,161.23, solely against Chata, the non-profit corporation. On November 4, 1971, on the tax lien filed, the Tax Commission instituted garnishment proceedings against Chata.

There was no request filed with the State Tax Commission for a hearing, see sources cited in Section 27-65-45, Miss. Code, 1972. There was no suit in the Chancery Court for refund, or appeal to the Supreme Court, as authorized by Section 27-65-47, Miss.Code, 1972, and predecessor statutes. The remedial procedures provided by Mississippi law were wholly bypassed.

On May 18, 1972, the United States rode into the fray. It brought suit on behalf of the Mississippi Band to enjoin the Tax Commission from assessing, collecting, and attempting to collect sales taxes from the Development Company and the Authority. The suit also sought to have declared null and void the tax lien entered against Chata.

The District Court found that the United States was not the real party in interest (Rule 17(a), Federal Rules of Civil Procedure), allowed Chata Development Company, against whom the taxes had been assessed, to join the suit as the real party plaintiff, held that the Mississippi Legislature had exempted the Choctaw Band from the taxes in question, and permanently enjoined the defendants :

(1) from assessing, collecting, or attempting to collect any taxes levied by the provisions of the Mississippi State Tax law from the Mississippi Band of Choctaw Indians, Chata Development Company, and Choctaw Housing Authority;
(2) from assessing, collecting, or attempting to collect from any material men and suppliers furnishing materials to the Mississippi Band, Chata, or the Choctaw Housing Authority any tax under § 10108, Miss.Code Ann., 1942;
(3) from proceeding further to collect the $19,161.23 alleged due in the cause then pending in Neshoba County Circuit Court;
(4) the tax lien was declared null and void.

Appellant State Tax Commission argues that the United States had no lawful authority to bring this action, that the District Court lacked jurisdiction of the parties and the subject matter, and that if a controversy existed it was for state administrative and judicial determination, rather than federal.

When this suit was initially filed, the United States asserte'd jurisdiction on 28 U.S.C. § 1345 and § 1362. In order for § 1345 to apply, suit must be brought by the United States, or one of its agencies or officers thereof. However, the District Court found that the United States was not the real party in interest and ordered that the Chata Development Company, a Mississippi corporation, be joined as a party plaintiff. Chata was joined, and the suit proceeded.

Whether Chata, the corporation, was obligated to pay the sales taxes required of it as the building contractor was the real issue in the case. As already indicated, Rule 17(a), Fed.R.Civ.P. requires that every action be prosecuted in the name of the real party in interest. The United States sought to meet this requirement by alleging that the suit was brought on behalf of the Mississippi Band of Choctaw Indians, that Chata “is an instrumentality and subsidiary of the Tribe, established by tribal resolutions”. In any event, the United States sought no recovery for itself but only on behalf of a corporate taxpayer.

The United States knew that it could not lend its name to a suit for the benefit of private litigants, United States v. San Jacinto Tin Company, 125 U.S. 273, 8 S.Ct. 850, 31 L.Ed. 747 (1888); State of Wisconsin v. First Federal Savings & Loan Association, 7 Cir., 1957, 248 F.2d 804, cert. denied 355 U.S. 957, 78 S.Ct. 543, 2 L.Ed.2d 533; Wright, Law of Federal Courts, 68 (2d Ed., 1970).

This presents a problem because Chata had no contract with the Mississippi Band of Choctaw Indians, the group named in the statute as the beneficiary of the exemption. Moreover, Chata, as the contractor, was a corporation, chartered under Mississippi law. The benefits and privileges of such a charter had been sought and obtained when there could have been no doubt about the status imposed upon corporations by law. The law of Mississippi is that a corporation “is an entity separate and distinct from its stockholders”, Illinois Central Railroad Company v. Mississippi Cotton Seed Products Company, 166 Miss. 579, 148 So. 371 (1933). Thus in an effort to avoid the taxes which Mississippi corporations are required to pay, Chata has cast itself in the untenable role of claiming the benefits and denying the burdens of the status which its incorporators voluntarily sought.

The Mississippi rule is the same as the general rule, that a corporation is a creature of the law and it is a legal personality, separate and apart from that of its owners, Berger v. Columbia Broadcasting System, 5 Cir., 1972, 453 F.2d 991, cert. denied 409 U.S. 848, 93 S.Ct. 54, 34 L.Ed.2d 89; Burnet v. Clark, 287 U.S. 410, 53 S.Ct. 207, 77 L.Ed. 397 (1932); Overstreet v. Southern Railway Company, 5 Cir., 1967, 371 F.2d 411, cert. denied 387 U.S. 912, 87 S.Ct. 1700, 18 L.Ed.2d 634. The corporate fiction is not to be disregarded because of mutuality of corporate names, stockholders and officers. The fact that one entity owns all the stock in the other is not determinative. The test is whether Chata as a corporation actively owned and conducted its own business, Overstreet v. Southern Railway Company, supra.

Chata’s directors are all members of the Band but the testimony revealed that “the tribe is not the corporation” and that the Tribal Council is not the same as the Chata Development Company. The testimony further revealed that 35% of Chata’s employees were not Indians and that the houses being built could be occupied by those who are not Indians.

In these circumstances, applying Mississippi law, we hold that Chata was an entity “separate and distinct” from the Mississippi Band of Choctaw Indians, the group named as the beneficiary of the exemption in Mississippi’s Sales Tax statutes. The United States was attempting to lend its name to a suit on behalf of a private corporation and was not the real party in interest. When it so held, the District Court was right.

In the absence of a justiciable interest on behalf of the United States, 28 U.S.C. § 1345 conferred no jurisdiction.

Neither is 28 U.S.C. § 1362, of any jurisdictional assistance. Chata Development Company is not an Indian Tribe or Band. Even looking through the corporate form to the individual Indian incorporators would not help, for § 1362 contains no general grant of jurisdiction for a suit merely because an Indian is a party, 1 Moore’s Federal Practice, § 0.74 [2.-2],

Since this is a Mississippi tax, imposed on the commercial activities of a Mississippi corporation, we detect no federal question in this case.

This does not eliminate all of the serious jurisdictional questions.

There is a specific Act of Congress, 28 U.S.C. § 1341, which reads as follows :

“The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.”

The application of this statute to Mississippi tax collection procedures had the full dress consideration of this Court in Bland v. McHann, 1972, 463 F.2d 21, cert. denied, 410 U.S. 966, 93 S.Ct. 1438, 35 L.Ed.2d 700 (1973).

We there stated that the statute applied to anticipatory action as well as to ongoing efforts to collect. It also applies to suits for refunds, 463 F.2d at 25. We there reaffirmed the proposition that Mississippi provides a “plain, speedy, and efficient” remedy within the meaning of the statute.

In McHann we concluded:

“Taxpayers’ complaints that the Mississippi remedy is inadequate appear in reality to be an argument that a better remedy would be available in the federal courts. Neither the judicial decisions nor § 1341 requires that the state remedy be the best remedy available or even equal to or better than the remedy which might be available in the federal courts. Section 1341 merely requires that the state remedy be 'plain, speedy and efficient.’ Thus, in view of the district court’s finding, this court’s decision in Monaghan and our own independent review of the available state remedy, we conclude that the Mississippi remedy is plain, speedy and efficient.” 463 F.2d 29.

In McHann we relied, as indicated, upon the jurisdictional holding in Shepherd v. Monaghan, 5 Cir., 1958, 256 F.2d 882, which was a Mississippi sales and use tax case and in which the right to recover improperly collected taxes was specifically held to afford an adequate remedy.

The appellees should have invoked the aid of the State Courts in their quest for relief from the tax liability here at issue. The District Court had no jurisdiction to entertain the effort.

THE STATUS OF CHOCTAW INDIANS IN THE STATE OF MISSISSIPPI

Prior to 1871, when Congress put a stop to the practice, there existed a widespread procedure in which the United States made treaties with the respective Indian Tribes, particularly with reference to the acquisition of Indian lands.

Article 6, Clause 2, of the Constitution provides that all treaties made under the authority of the United States “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”. Consequently, these Indian treaties, when ratified by the Senate, assumed equal status with the Constitution itself as a part of the “supreme Law of the Land”.

Prior to the final removal of the Choctaw Indian TRIBE from Mississippi to the Indian Territory, which occurred pursuant to the terms of the Treaty of Dancing Rabbit Creek, ratified by the Senate February 24, 1831, the United States made the following treaties with the Tribe:

Choctaw Indian TREATIES
(See Hutchinson’s Miss.Code, 1848, Chapter V, pp. 117-136)
Date Place Purpose
Jan. 3, 1786 Hopewell, in north- Defined the boundaries of western South Caro- the Choctaw Nation North lina of the 31° of North Lati-tide, East of the Natchez District.
Dec. 7, 1801 Fort Adams Permitted the conversion of the Natchez Trace into a federal road; ceded 2,245,-720 acres of land between 31° and the Yazoo River.
Oct. 17, 1802 Fort Confederation ' on the Tombigbee To mark the boundary from the Chickasawhay to the-Tombigbee.
Aug. 31, 1803 Ho-buckin-too-pa Ceded 1,000,000 acres.
Nov. 6, 1805 Mt. Dexter Ceded 4,374,244 acres.
Oct. 24, 1816 St. Stephens Ceded land where Columbus, Mississippi, now stands.
Oct. 18, 1820 Doak’s Stand On the Natchez Trace near present day Canton, Mississippi, negotiated by Gen. Andrew Jackson and Chief Pushmataha Exchanged 5,000,000 acres in Mississippi for lands between the Arkansas, the Red, and the Canadian Rivers.
Jan. 20, 1825 Washington Agrees that all Indians living on the exchanged lands in Mississippi may remain there if they so desire and shall receive 640 acres.

The foregoing treaties culminated in the Treaty of Dancing Rabbit Creek, signed near present day Macon, Mississippi, ceding the last of the Tribal domain in Mississippi, 10,500,000 acres.

Contrary to the practice followed in certain notorious cases, the Treaty of Dancing Rabbit Creek required no Indian to leave Mississippi. Permission to remain and become Mississippi citizens was expressly assured.

Article XIV of the Dancing Rabbit Treaty provided:

“Each Choctaw head of a family being desirous to remain and become a citizen of the States, shall be permitted to do so, by signifying his intention to the Agent within six months from the ratification of this Treaty, and he or she shall thereupon be entitled to a reservation of one section of six hundred and forty acres of land, to be bounded by sectional lines of survey; in like manner shall be entitled to one half that quantity for each unmarried child which is living with him over ten years of age; and a quarter section to such child as may be under ten years of age, to adjoin the location of the parent. If they reside upon said lands intending to become citizens of the States for five years after the ratification of this treaty, in that case a grant in fee simple shall issue; said reservation shall include the present improvement, of the head of the family, or a portion of it. Persons who claim under this article shall not lose the privilege of a Choctaw citizen, but if they ever remove are not to be entitled to any portion of the Choctaw annuity.” [Emphasis added],

This article is self explanatory. The last sentence of Article XIV: “Persons who claim under this article shall not lose the privilege of a Choctaw citizen, but if they ever remove are not to be entitled to any portion of the Choctaw annuity”, meant that if the individual deciding to remain in Mississippi should ever choose to join his brethren in the Indian Territory he could not be denied that privilege, but he was to be cut off from any portion of the annuity payable to the Tribe under the Treaty, because he had already received his compensation in the form of land. See, Winton v. Amos, post.

In the beginning, one third (5,000) of the Choctaws elected to remain in Mississippi ; the others were moved West in 1831, 1832, and 1833. Migration continued sporadically, however, and by 1900 only 2,000 Choctaws remained in Mississippi. As a matter of fact, Greenwood Leflore, the head Chief of the Choctaws, whose boyhood home was on the Natchez Trace at French Camp in present day Choctaw County, chose not to go West, became an immensely wealthy man, and exercised his Mississippi citizenship by serving with distinction in the Mississippi State Senate.

The Dancing Rabbit Treaty opens with the following language:

“Now, therefore, that the Choctaws may live under their own laws in peace with the United States and the State of Mississippi, they have determined to sell their lands east of the Mississippi.”

All prior treaties and agreements where inconsistent with the Dancing Rabbit Treaty were declared null and void.

It was further ordained that no part of the land granted the Tribe should ever be embraced in any territory or state, Article IV.

Clearly the Tribe, as an entity, was never to be a part of any state or territory.

Thus, by the specific language of the Treaty, there can be no doubt that when it was ratified by the Senate the tribal character of the Choctaw Indians in Mississippi came to an end.

DeRosier wrote, p. 128, “After more than thirty years of negotiations, the Choctaws had been persuaded to relinquish their precious homeland and emigrate to a new Indian territory in the west”.

In Indian Removal, p. 31, Foreman writes that those who did not go west “preferred to stay and be incorporated in the state”.

Insofar as the Government of the United States was concerned, the Choctaw Indians who remained in Mississippi after Dancing Rabbit were left in limbo for ninety years, less two, (1830— 1918).

Congress passed the Act of May 25, 1918 (40 Stat. at L. 573) appropriating monies for the Bureau of Indian Affairs. Under the heading “MISSISSIPPI” the following was provided:

“For the relief of distress among the full-blood Choctaw Indians of Mississippi, including the pay of one special agent, who shall be a physician, one farmer, and one field matron, $5,000; for their education by establishing and maintaining day schools including the purchase of lands and the construction of necessary buildings, $20,000; for the purchase of lands, including improvements thereon, not exceeding eighty acres for any one family, for the use and occupancy of said Indians, to be expended under conditions to be prescribed by the Secretary of the Interior for repayment to the United States, under such rules and regulations as he may direct, $25,000; for the purpose of encouraging industry and self-support among said Indians and to aid them in building homes, in the culture of fruits, grains, cotton and other crops, $25,000, which sum may be used for the purchase of seed, animals, machinery, tools, implements, and other equipment necessary, in the discretion of the Secretary of the Interior, to enable said Indians to become self-supporting, to be expended under conditions to be prescribed by the said Secretary for its repayment to the United States on or before June thirtieth, nineteen hundred and twenty-five; in all, $75,000 to be immediately available.”

This Act glaringly omits reference to the Mississippi Choctaws as a “tribe” and omits any mention of a “reservation”. Obviously, none existed.

A special agent was sent to Philadelphia, Mississippi, in 1918, and he found that the Choctaws did not attend school and were generally leading an isolated life. The great majority of the Indians were living in Neshoba, Leake, Newton, Scott, Jones, Winston and Noxubee Counties. The poor health, education and economic status of the people led to the establishment of an agency at Philadelphia in 1918.

The land purchase program was initiated in 1921. Under this program, the government would buy a tract of land, sub-divide it into twenty to forty acre plots, and build a small house on each plot. The land was resold to the Indians on a reimbursable basis. From 1921 until 1932, the government bought 3,680 acres of land for the Choctaws. It was sold to 88 Indians on the reimbursable plan. None of it was ever paid for. The United States now holds it in trust for the Indians, Act of June 21, 1939, 53 Stat. 851.

In Winton v. Amos and others, known as Choctaw Indians, 255 U.S. 373, 41 S.Ct. 342, 65 L.Ed. 684 (1921), the Supreme Court had occasion to review, in depth, the status of the Mississippi Choctaws subsequent to the Dancing Rabbit Treaty. It is to be regretted that the lengthy and expositive analysis set forth in the opinion of the Court cannot be repeated here, but at 378, 41 S.Ct. at 344 we find the following:

“The mixed-blood Choctaws who elected to remain in Mississippi were provided for under article 19, while the full bloods who remained and elected to become citizens of the state were provided for under article 14; hence fullblood Mississippi Choctaws have always been called ‘Fourteenth Article claimants.’ Choctaws who remained in Mississippi under that article adopted the dress, habits, customs, and manner of living of the white citizens of the state. They had no tribal or band organization or laws of their own, but were subject to the laws of the state. They did not live upon any reservation, nor did the government exercise supervision or control over them. No funds were appropriated for their support, though much land was given to them. Neither the Indian Office nor the Department of the Interior assumed or exercised jurisdiction over them, and they never recognized them either individually or as bands, but regarded them as citizens of the State of Mississippi, and the Department held it had no authority to approve contracts made with them.”

As late as August 31, 1936, as it appears in the record, the Solicitor of the Department of the Interior ruled that “there is in fact no existing tribe of Indians in Mississippi known as the Choctaw Tribe”.

The matter boils down to whether the Mississippi Choctaws became a tribe and live on a reservation as the result of the Wheeler-Howard Act (approved June 18, 1934, 48 Stat. 984) and the Proclamation of the Department of the Interior issued in 1944.

For the reasons hereinafter set forth our answer to both issues is in the negative.

Section 19 of the Wheeler-Howard Act reads as follows:

“The term ‘Indian’ as used in this Act shall include persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. For the purposes of this Act, Eskimos and other aboriginal peoples of Alaska shall be considered Indians. The term ‘tribe’ wherever used in this Act shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation. The words ‘adult Indians’ where used in this Act shall be construed to refer to Indians who have attained the age of twenty-one years.” [Emphasis added].

The language of Section 19 positively dictates that tribal status is to be determined as of June, 1934, as indicated by the words “any recognized Indian tribe now under Federal jurisdiction” and the additional language to like effect.

The Mississippi Choctaws did not, in June, 1934 fall within the status prescribed by the Act. Their vote in 1935 to accept the benefits of the Act was not authorized by that statute. They could not confer upon themselves the benefit of a law in which, by its very terms, they had not been included.

This omission was not, and could not have been, cured by a Proclamation of the Department of the Interi- or, grounded on the Act of 1934, which in 1944 purported to recognize the tribal organization of the Mississippi Band of Choctaw Indians and which attempted to declare that the lands purchased for their use and held for them in trust is an Indian Reservation. While this Proclamation may, until set aside in appropriate proceedings, be binding on the Secretary of the Interior, a matter about which Mississippi has no standing to complain, and about which we intimate no opinion, there was no authority in the statute cited in its support and the Proclamation is not binding on the State in the exercise of its lawful authority over its citizens, human or corporate.

Deciding the case before us, and purely in a jurisdictional context, we must reject the assertions of the United States that

“The Mississippi Band of Choctaw Indians is an Indian tribe.” and
“The Tribe [is] situated on the Mississippi Band of Choctaw Indians Reservation and in Indian Country in Mississippi over which the United States has exclusive jurisdiction.”

Therefore, if we are mistaken in our first holding that the United States is not a real party in interest in the efforts of the corporation to avoid paying the taxes assessed against it, the result is the same. The District Court remains without jurisdiction to entertain the suit.

We intimate no opinion as to the liability of the corporation to pay the tax. It is a matter of state law and, for lack of jurisdiction, is not before us.

The judgment of the District Court is reversed, and remanded with directions to dismiss the complaint, without prejudice to the right of the plaintiffs to seek any appropriate relief provided by state law.

Reversed and remanded, with directions.

      . McLemore, A History of Mississippi, 1973, p. 88. Anyone interested in the history of this noble tribe of Bed men should read: DeRosier, The Removal of the Choctaw Indians, U. of Tennessee Press, 1970; Debo, The Rise and Fall of the Choctaw Republic, U. of Oklahoma Press, 1961; Foreman, Indian Removal, U. of Oklahoma Press, 1953; Foreman, The Five Civilized Tribes, TJ. of Oklahoma Press, 1934.

      . The United States parted with title to the land either by specific grants in the 1830 Treaty or subsequent patents to private purchasers. It then repurchased this land in the Twentieth Century from the contemporary owners. The State has never by appropriate legislation consented to exclusive jurisdiction by the United States. The government was simply an ordinary proprietor. See Article I, Section 8, Clause 17, United States Constitution; Paul v. United States, 371 U.S. 245, 83 S.Ct. 426, 9 L.Ed.2d 292 (1963).


author: CLARK, Circuit Judge:

text:
    HOHENBERG BROS. COMPANY, Plaintiff-Appellee, v. J. A. KILLEBREW, Defendant-Appellant.
    No. 74-1274.
    United States Court of Appeals, Fifth Circuit.
    Dec. 18, 1974.
    Rehearing and Rehearing En Banc Denied Jan. 21, 1975.

      John W. Barrett, Lexington, Miss., Heber A. Ladner, Jr., Jackson, Miss., for defendant-appellant.
    Arnold F. Gwin, Greenwood, Miss., for plaintiff-appellee.
    Before CLARK and RONEY, Circuit Judges, and RUSSELL, District Judge.
   CLARK, Circuit Judge:

This diversity action was brought by Hohenberg Brothers Company (Hohen-berg), a Memphis-based cotton merchandiser, against J. A. Killebrew, a Mississippi farmer, for specific performance of a purchase and sales agreement covering Killebrew’s cotton crop on approximately 400 acres of land in Holmes County, Mississippi. An unprecedented rise in the price of cotton during the summer months of 1973 best explains why the validity of this seemingly simple contractual transaction is now being contested.

The dispute involves a determination of whether either of two purchase and sales agreements, one agreement having been drafted by each party, constitutes a binding, enforceable contract between the parties. The cause was tried to the court without a jury. The following facts found by the district judge are amply supported by the record. Both parties were represented by agents, D. T. Sayle, Jr., acting on behalf of Kille-brew, as he had done for approximately 30 years, and E. K. Hyman, a Mississippi-based representative of Hohenberg. In February of 1973, at Sayle’s suggestion, Killebrew signed and delivered to Sayle a 1-page purchase and sales agreement form covering the sale of Kille-brew’s 1973 cotton crop. All of the blanks in this document were completed except for the name and signature of the then unknown purchaser. On the second of March, Sayle secured an oral commitment through Hyman that Hoh-enberg would purchase Killebrew’s crop at the prices set forth in the 1-page contract. Hohenberg immediately sent Sayle its standard form 3-page purchase and sales agreement on which was typed the price quotations, cut-off dates and acreage previously agreed upon and identical to the terms which had been inserted in Sayle’s 1-page document. The 3-page document also contained several provisions different from and additional to those found in the 1-page document, but the trial court found no material differences in the two agreements. Upon receipt of the 3-page document, Sayle signed the name of J. A. Killebrew to one copy and returned it to Hohen-berg. The trial court concluded, however, that Sayle acted beyond the scope of his agency in signing Killebrew’s name. Sayle also mailed a copy to Killebrew.

At a later date, found by the district court to probably be at some time during the month of March, Hyman executed the 1-page agreement for Hohenberg, dating it as of March 5, 1973 in conformity with the date of the 3-page agreement. Killebrew received a copy of the 3-page agreement during the middle of March but did not communicate with either Sayle or Hohenberg about it until the first week in August. At that time, in response to an inquiry from Hohen-berg concerning the status of Kille-brew’s crop, Killebrew replied that they did not have a contract. The district court, finding that the 1-page contract was enforceable against Killebrew, granted specific performance pursuant to a stipulation between the parties and awarded attorney’s fees as provided in the contract. We affirm.

Killebrew was under no compulsion to sign the blank 1-page contract other than his desire, having finally decided upon the terms of sale that would fully satisfy his expectations, to rid himself of involvement in the task of locating a consenting purchaser. Consequently, when he delivered the 1-page document to Sayle, he vested Sayle with full authority to take the necessary measures to close a contractual relationship with a purchaser willing to meet the terms set forth. Having vested such authority in Sayle, Killebrew committed himself to be bound by any seasonable acceptance of the contract terms that Sayle could secure. As an incident of this commitment Killebrew assumed an affirmative duty to notify Sayle of any subsequent retraction of the offer. Absent such notification, Sayle could legally bind Killebrew without the necessity of obtaining any further assent from him. This open-ended offer was orally accepted by Hohenberg on the second of March, prior to any change in the market, and confirmed in writing by delivery to Sayle of the 3-page document.

Killebrew’s attempted characterization of Hohenberg’s 3-page document as a substantially different counteroffer, which constituted an automatic rejection of the 1-page document, collapses under the express provisions of Section 75-2-207 of the Mississippi Code of 1972. This section of Mississippi’s version of the Uniform Commercial Code dictates that we view delivery of the 3-page document as a written confirmation of Hohenberg’s acceptance of the 1-page document. These two documents present a classic opportunity for application of Section 75-2-207(1) which rejects the common law mirror image rule and converts what under the common law would have been a counteroffer into an acceptance or confirmation even though the acceptance or confirmation includes terms additional to or different from those offered or agreed upon. See White & Summers, Uniform Commercial Code § 1-2, at 24 (1972). Analysis of the effect of the different and additional terms has been rendered unnecessary by Hohenberg’s desire to enforce only those terms found in the 1-page agreement.

Additionally, under the facts of this case, equity demands that Killebrew not be heard to complain of enforcement of the precise agreement to which he signified his unconditional commitment by the execütion of the 1-page purchase and sales agreement.

Any possible right to reject a seasonable acceptance of the 1-page agreement was forfeited by Killebrew’s failure, upon receipt of Hohenberg’s executed 3-page agreement, to timely notify a representative of Hohenberg of any objection or dissatisfaction. In a case such as this, where a party receives a writing containing essential terms identical to those expressed in a previously executed contract proposal, that party has a duty to speak out if he does not intend to be bound by the terms he proposed. Failing in this duty, his silence constitutes an estoppel. As recognized by the Mississippi Supreme Court in Resolute Ins. Co. v. State, 290 So.2d 599 (Miss.1974): “It has long been an established rule of equity [now adopted by courts of law] that where one by his acts or representations [or even by his silence when he ought to speak] intentionally or through culpable negligence induced another to believe that certain facts exist so that he acts on these facts to his hurt and prejudice, such person may invoke the doctrine of estoppel against one who induces or by his negligent acts causes, a person to act to his hurt on such facts.” Id. at 602 (brackets found in original text); accord, Kel-so v. Robinson, 172 Miss. 828, 161 So. 135 (1935).

The three requirements of estoppel by silence, (1) that the party had a duty to speak, (2) that his failure to speak was either intentional or in negligent disregard of plain dictates of conscience and justice, and (3) that the other party relied on the fact of silence to his detriment, are clearly satisfied under the facts of this case. First, having received an executed 3-page agreement containing terms also found in the 1-page contract offer he had previously signed Killebrew had a duty to promptly notify Hohenberg of his claim that no contract had been finalized. Second, since it was clearly foreseeable that Hohenberg would enter into commitments for either the processing or resale of the cotton, Killebrew’s failure to notify Hohenberg of any objections for some six months after receipt of the 3-page document was in obvious disregard of the dictates of good conscience. Third, Hohenberg relied upon the apparent validity of the contract, executing a second contract covering resale of the cotton. The market purchase of other cotton to satisfy this second contract at the time Hohenberg was notified of Killebrew’s rejection moreover would have cost Hohenberg almost double the amount contracted for with Killebrew. In sum, Killebrew’s March to August silence estopped him to disavow the binding contractual effect of the 1-page contract he had signed after Hohenberg’s acceptance of his terms had been so long and clearly evinced.

The judgment appealed from is affirmed and the cause is remanded to the district court with directions to fix an additional reasonable appellee’s attorney fee on this appeal.

Affirmed and remanded.

      . The evidence is in conflict as to whether Sayle sent to Killebrew a copy of the 3-page agreement with Killebrew’s name signed by Sayle. In view of the district court’s finding that Killebrew was not estopped to deny Sayle’s authority to sign his name or the validity of the 3-page agreement, we assume for the purposes of our decision that the copy sent to Killebrew did not purport to show Killebrew’s signature.

      . Section 75-2-207 provides:
      (1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.
      (2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless :
      (a) the offer expressly limits acceptance to the terms of the offer ;
      (b) they materially alter it; or

        (c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.
      (3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such ease the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this code.

      . The effect of different or additional terms contained in an acceptance or confirmation are governed by Section 75-2-207 (2).


author: PER CURIAM;

text:
    John Frederick BARTELT, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 74-1793
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 26, 1974.
    Victor R. Arditti, El Paso, Tex. (Court-appointed), for plaintiff-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., William B. Hardie, Jr., Asst. U. S. Atty., El Paso, Tex., for defendant-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

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

   PER CURIAM;

Appellant filed a § 2255 motion to vacate the sentence from a jury trial conviction under 8 U.S.C. § 1324(a)(2), the illegal transportation of aliens. He alleged that his retained counsel was ineffective for failing to prosecute and perfect a direct criminal appeal. The District Court denied the motion without a hearing, and we vacated and remanded for an evidentiary hearing. Bartelt v. Guinn, 5 Cir., 1973, 485 F.2d 250.

At the evidentiary hearing the District Judge was faced with the conflicting testimony of the appellant and appellant’s formerly retained counsel, Mr. Moyers, as to their agreement concerning appellant’s appeal from the 8 U.S.C. § 1324(a)(2) conviction and sentence of February 12, 1971.

A copy of a letter dated April 20, 1971 from Moyers to appellant was submitted into evidence in which Mr. Moyers stated that he would not pursue appellant’s appeal since appellant’s alleged new evidence had not been produced and Moyer’s trial fee remained unpaid as well as any payment towards an appeal.

Appellant testified at the evidentiary hearing that his first indication that Moyers would not handle his appeal was in a letter sent to him by Moyers dated April 20, 1971, after the time for appeal. However, Moyers testified that the oral understanding all along was that he would proceed with an appeal only on the conditions that appellant’s alleged new evidence was forthcoming and that appellant pay his’legal fee for the trial and the appeal.

Choosing to credit the testimony of Mr. Moyers, the District Court found that appellant’s retained counsel adequately represented appellant and properly notified him that if legal fees and new evidence were not forthcoming, he could not handle the appeal. Further, the trial court found that appellant was aware from his past criminal record and experience that an indigent is entitled to an appointed attorney on appeal.

On these findings of fact, the District Court denied relief. The findings of the District Court are not clearly erroneous and we therefore affirm. United States v. Gypsum Co., 1948, 333 U.S. 364, 68 S.Ct. 525, 542, 92 L.Ed. 746, 765; Volkswagen of America, Inc. v. Jahre, 5 Cir., 1973, 472 F.2d 557, 559; Hayes v. United States, 5 Cir., 1972, 464 F.2d 1252, 1261; United States v. Strother, 5 Cir., 1972, 458 F.2d 424, 430; Martin v. United States, 5 Cir., 1968, 399 F.2d 708; Fed.R.Civ.P. 52(a).

We have carefully examined the record and are not “left with a definite and firm conviction that a mistake has been committed.” B. H. Bunn Co. v. AAA Replacement Parts Co., 5 Cir., 1971, 451 F.2d 1254, 1260; Lee v. United States, 5 Cir., 1972, 466 F.2d 11, 15; Lanassee v. Travelers Ins. Co., 5 Cir., 1971, 450 F.2d 580, 583, cert. denied, Chevron Oil Co. v. California, 406 U.S. 921, 92 S.Ct. 1779, 32 L.Ed.2d 120; Lentz v. Metropolitan Life Ins. Co., 5 Cir., 1970, 428 F.2d 36, 39; Chaney v. City of Galveston, 5 Cir., 1966, 368 F.2d 774, 776; Gibbs v. Tomlinson, 5 Cir., 1966, 362 F.2d 394, 397; Smith v. United States, 5 Cir., 1961, 287 F.2d 299, 301. The record contains sufficient evidence to support the trial court’s finding.

Affirmed.

      . Attorney Moyers testified at several points throughout the evidentiary hearing that appellant was always aware that the appeal would not be pursued unless certain conditions were met:
      After Mr. .Bartelt was convicted I did talk to him about an appeal. I told Mm that I thought the only grounds of appeal —let me back up and say that after he was already convicted, then he said he had some more witnesses that could prove that the two Government witnesses were lying. This had never been mentioned to me. They were suppose to be some of the family, some of these witnesses. This is the first time I had learned of it. I spoke to him and said we had to show that due diligence was exercised prior to trial and I would proceed with an appeal if he paid my fee, paid the expenses and paid my fee for the appeal, and if in fact these friends could come up with the evidence he claimed they could come up with, we would proceed.
      Transcript of Proceeedings, D.Ct., W.D. Texas, Feb. 21, 1974, at p. 25.
      Q To get the record straight, then, Mr. Moyers, you did contract for the trial only, is this correct?
      A That is correct.
      Q And there was no contract for any appeal whatsoever?
      A No.
      Q And there were never any indications by you that you would handled the appeal for this man?
      A The conditions were if the evidence were presented to me and if the old fee were paid and if the expenses were paid and if the fee for the appeal were paid, but I did not, as I stated in my letter, care to prosecute what I felt was a frivolous appeal financed with my own money.

        Id. at p. 31.

      . The findings of the District Court in its order of February 6, 1974 at the conclusion of the evidentiary hearing are as follows :
      From the testimony offered and the exhibits submitted to the Court, the Court does find and conclude that at the original trial the Petitioner was able and adequately represented by retained counsel. That the Petitioner was fully aware at all times of his rights and of the action and intention of the attorney in this case, that said attorney, in proper time and manner, advised the Petitioner that he would have to have funds with which to prepare the appeal and obtain the Transcript. Petitioner was fully aware of the opinion of his attorney that the only basis for a new trial or an appeal must be based on newly discovered evidence which the Petitioner had promised to obtain for him but wholly failed to do. The Petitioner from his past criminal record and experience was fully aware of his rights. The Petitioner was fully aware of his right to have an attorney appointed to appeal on his behalf if he desired to appeal and did not have funds to do so. By his own testimony at the time the appeal could have been perfected and should have been perfected, Petitioner was able to obtain funds to pay his attorney or another attorney to prosecute his appeal, and consequently was not deprived of any rights. The Court finds that Petitioner because of the opinion of his attorney that the appeal would be useless without newly discovered evidence which Petitioner could not obtain abandoned said appeal.
      The Court finds that his employed counsel was a competent attorney, that he fully and ably represented him and that the Petitioner was not deprived of his right to appeal.