author: MANSFIELD, Circuit Judge:

text:
    Michael T. ANDERSON, Plaintiff-Appellee, v. GREAT LAKES DREDGE & DOCK CO., Defendant-Appellant.
    No. 259, Docket 74-1779.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 31, 1974.
    Decided Dec. 17, 1974.

      Joseph A. Cohen, New York City (Sidney A. Schwartz, Alexander, Ash, Schwartz & Cohen, New York City, of counsel), for defendant-appellant.
    John F. Haggerty, Brooklyn, N. Y. (John J. Corcoran, Matthew L. Danahar, Kew Gardens, N. Y., of counsel), for plaintiff-appellee.
    Before LUMBARD, MOORE and MANSFIELD, Circuit Judges.
   MANSFIELD, Circuit Judge:

This seaman’s action for damages for personal injuries allegedly caused by defendant’s negligence and the unseaworthiness of its dredge was tried by a jury in the Southern District of New York and resulted in a verdict awarding $500,000 damages to the plaintiff, which was reduced to $250,000 by reason of plaintiff’s contributory negligence. Defendant appeals, contending that plaintiff failed to prove that the alleged negligence and unseaworthiness caused the accident, that certain of the trial judge’s rulings were erroneous and highly prejudicial to it, and that the damage award was grossly excessive. We reverse and remand for a new trial.

The accident forming the basis of the suit occurred on October 18, 1970, when plaintiff, a crew member engaged in the operation of a winch used to pull wire into an enclosed cab aboard defendant’s dredge (a floating vessel used to dig river channels) and wind it onto a drum, suddenly was pulled or fell into the winch and catapulted over its moving drum, suffering serious injuries. The overall width of the winch was 22 inches, including the rotating drum, which was 10 inches wide and 24 inches in circumference. It was controlled by means of a small hand lever on its right side. At the time of the accident plaintiff was standing to the left of the moving wire, using his right hand to operate the winch lever and his gloved left hand to guide the wire so that it would wind evenly around the drum.

Plaintiff claimed that the accident was caused by defendant’s failure to furnish him with sufficient help to operate the winch and perform certain other related tasks and by a defect called a “fish hook” (a curled broken strand of wire) on the moving cable, which caught his gloved hand and pulled him into the winch. He contended that three men should have been furnished to do his job: one to move the winch lever, a second to pat and guide the wire onto the winch drum and a third to stand at the door of the cab to relay any signals or instructions from the operator of an adjoining scow. The defendant denied these claims, contending that the operation of the winch was a one-man job, that there was no defect in the wire cable being wound onto the drum, and that the accident was caused wholly by plaintiff’s own negligence in positioning himself improperly to the left of the moving wire, which required him to bend his body over it to reach the operating lever, and in touching or tapping the moving wire with his left hand in order to guide it. With the, issues thus joined the case went to trial.

The Trial

Since the sole witness to the accident was the plaintiff, who was alone in the cab when it occurred, his testimony and his credibility were crucial to his case. The trial judge’s rulings on examination and cross-examination of the plaintiff, therefore, assumed more than their usual importance.

The testimony of plaintiff, who was the fij^st witness to take the stand, was relatively uneventful until he described how the accident occurred. He then stated that, after he had started the tugger winch to wind up the wire cable and the drum was making its first three turns, his “hand got caught” on the cable, pulling him toward the drum. Thereupon for eight pages of the transcript the trial judge took the examination out of the hands of plaintiff’s counsel, questioning the plaintiff in detail and at length, and, with the aid of leading questions, inducing plaintiff to demonstrate to the jury by motions and gestures his recollection of how the accident occurred, accompanied by his verbal description. In answer to the court’s inquiry as to how his hand got caught in the wire cable, the following occurred:

“The Witness: I believe it was a fish hook on the wire.
“The Court: A fish hook?
“The Witness: Yes, a piece of wire that broke off.
“The Court: And your hand got caught on that?
“The Witness: Yes, sir.
“The Court: And it pulled it right in: is that what you mean.
“The Witness: Yes, sir.
“The Court [to the jury]: Do you get it? Now [apparently to the jury], you are not allowed to ask any questions. I can ask the questions.
Do you understand what he is doing?
Now I will take any suggestions from the jury as to what you would like to have him demonstrate in connection with this endeavor.
Are there any questions?
“Juror No. 7: I would like to see him demonstrate the speed with which his hand went toward the drum.
“The Court: Can he do that? Can you demonstrate the speed with which your hand went forward to the drum when it got caught on the fish hook?
“The Witness: Quite fast.
“The Court: Show us. Demonstrate it, for heaven’s sake.
“The Witness: My hand got caught and that was it.” (App. 80-81)

Plaintiff further testified that normally three men are assigned to do the wire cable-rewinding job, one to operate the tugger winch lever, one to guide the wire on to the drum and one to stand by the cab door to watch the wire outside and relay signals from the deck to the winch operator.

Upon cross-examination plaintiff conceded that for this particular type of operation only two men went to the cab at the beginning and that there was no standard procedure as to how the five men on the entire job would be dispersed, the assignments being made by the mate. His theory, he testified, was that if another man had operated the winch lever that man might have stopped the winch sooner, before plaintiff “got his hand wrapped around it.” However, his testimony had been that the accident occurred very fast, as the first three turns of the wire, each 24 inches long, were wrapped around the drum, and that plaintiff would know sooner than the lever operator when plaintiff’s left hand had been caught by the wire and pulled into the drum.

In view of the uncertainty of plaintiff’s testimony as to how the positioning of a separate winch operator in the cab might, in the absence of specific proof as to how the accident happened, have prevented it from occurring, plaintiff’s testimony to the effect that his gloved left hand being used to guide the cable on to the drum was suddenly caught by a “fish hook” (i. e., a curled broken strand of wire), assumed considerable importance, since such a defective cable could constitute a separate basis of liability. Accordingly defense counsel confronted plaintiff with his sworn pretrial deposition testimony to the effect that he did not know what happened at the time of the accident. Plaintiff further conceded on cross-examination that he did not know whether there was any “fish hook” on the wire cable being hauled at the time of the accident. Counsel for the defendant thereupon quite properly moved to strike plaintiff’s earlier testimony, given on direct, to the effect that the accident occurred when his gloved left hand had been caught by a “fish hook” and pulled into the drum.

At this point in the trial the court, instead of granting the motion and instructing the jury to disregard the earlier testimony, again took over the questioning of the plaintiff and elicited, in the presence of the jury, testimony to the effect that while plaintiff neither felt nor saw any “fish hook,” he “deduced” that it must have been a “fish hook.” (App. 233). Specifically plaintiff testified, “Your Honor, I said something caught my hand and pulled it. The only thing I could imagine it could be was a fish hook.” In response to the defense’s renewed motion to strike, the court reserved decision in a statement which indicated sympathy for the plaintiff’s position. Defendant’s counsel then, after considerable colloquy between the court and plaintiff, was permitted to read a portion of plaintiff’s sworn pretrial deposition to the effect that he did not know what had happened when the accident occurred. He then sought to bring out that plaintiff had understood the questions put to' him when his deposition had been taken. Earlier the court on its own had elicited from plaintiff that he was “nervous” when the deposition was taken. Now plaintiff testified that he had been “nervous and scared and — didn’t know— what the story was.” (App. 239).

Faced with this explanation of the sharp inconsistency in plaintiff’s testimony regarding the most crucial aspect of the entire case, defense counsel brought out that shortly before trial plaintiff had twice read and then had signed a transcript of his deposition testimony. When the defense then quite properly asked plaintiff whether, after reading through his testimony, he had made any changes to reflect the different version given in his trial testimony, the court sustained an objection, stating:

“The Court: It is clear to me that the witness is now saying that testimony of the answers he gave in that deposition were answers due to fear, et cetera, et cetera.
“Mr. Cohen: To what? I’m sorry, your Honor. I missed a word.
“The Court: Answers that were due to fear; that he had apprehension that he says he had at the time, but he made it clear that the questions and the answers that are reflected in that deposition were the questions put to him and the answers that he gave. That’s an entirely different thing.” (App. 244).

After the defense then elicited from plaintiff that he had read the transcript in his own home, the following occurred:

“Q. When you read it at home you weren’t nervous, were you, sitting in your home reading this?
“A. No, sir.
“Q. Now, at the time you were at home reading this written transcript through at least twice, did you make any changes so as to better express what you say you wanted to express?
“The Court: You still haven’t got the point and you are wrong. You are wrong, sir.
“Mr. Cohen: Your Honor—
“The Court: No, I am saying so and I will give you a chance to correct it. The witness’s position is that the transcript does accurately reflect what he said. He has no power to change it. He wouldn’t dare change a word of that. He can only ask himself ‘Did I say that on that occasion.’ He insists that he did say it. There is no question about that and, therefore, he had nothing to correct, but when he did give that testimony, in certain areas the answers he gave as they are reflected do not constitute the height of accuracy because at the time he was nervous, et cetera. Is that not the position?
“Mr. Danahar [plaintiff’s counsel]: Exactly, your Honor. (Emphasis added) (App. 245-46).
* * * * * *
“The Court: What you are saying is that some of those answers were not accurate because while you did give them, you gave them because you were nervous?
“The Witness: Yes, sir.
“The Court: Isn’t that what you are saying?
“The Witness: Yes, sir.
“Mr. Cohen: May I at this time ask your Honor for a charge to the jury that the Federal Rules of Civil Procedure permit a witness who has testified on a deposition to make corrections in his testimony at the time he signs the same if upon reading it over he finds he made errors?
“The Court: I will not so charge. I will say that that is the position of this witness with regard to that deposition regardless of whether or not there is a rule such as you quote. That’s what his position is. It’s for the jury to determine whether they want to accept it.
“Mr. Cohen: I am asking your Hon- or for a charge to the jury to say that the law permits a witness to make changes in his deposition if upon reading it over he finds errors. I ask your Honor to so instruct the jury that that opportunity was afforded to the witness because I believe your Honor has said to them that he couldn’t possibly make any changes.
“The Court: Sir, you heard what the Court said. You will have your opportunity between now and the time of the charge to say anything further. I refuse to say anything further on that score right now. We have developed what the witness’s position is with regard to that deposition and I have done that as thoroughly as I know how. At any rate, you give me whatever you wish by way of a commentary that I can make at the appropriate time. All I am concerned with, I repeat, is what is this witness’s sworn testimony as he sits on that stand before this Court and this jury and that, I think, has been established. You can argue later on, if you wish, that there was an opportunity; that the law says this, that and the other, but that’s got nothing at all to do with what his position is right now as to his sworn testimony with respect to that deposition. If they want to believe it, that’s their province. If they want to disregard it, that’s their province, but I want them to know what his position is regardless of what the law has got to say; regardless of what the rules may have. Do you get my point?
“Mr. Cohen: Yes, your Honor.
“The Court: That’s the way it is.
“Mr. Cohen: May I, in the absence of the jury, meet with you, opposite counsel and the court reporter?
“The Court: Ladies and gentlemen of the jury, it is now half-past four. You have had a full day. I told you when we started yesterday that the attorneys would do their level best to move this case along and they have. You know, Mr. Danahar could have no idea how long Mr. Cohen will take on cross-examination. This little bit of interplay here runs into a substantial period of time. I would venture to suggest that on this very little item dealing with the point just raised by Mr. Cohen, we might have spent fully 35, 40 minutes. . . . ” (App. 247-49).

After the jury was excused the defense, moving for a mistrial, argued that the court had erred in ruling that the plaintiff could not under the federal rules have corrected the transcript of his deposition testimony and in stating in the jury’s presence that the defense was “wrong” in asking plaintiff whether he had done so. Thereupon the following occurred:

“The Court: . . . [W]hat you are incensed about is that he didn’t change those answers to reflect the truth under circumstances at his home when he was not nervous, and my answer to that is that he was never so instructed that he could change it to accord with the truth and to be more accurate. Mr. Danahar, you, as a lawyer, do you say on the record that you told him he could change it if it was not accurate?
“Mr. Danahar: I say on the record that I did not tell him that they could be changed if they were not accurate.
“The Court: All right.
“Mr. Cohen: May I ask, Mr. Danahar, do you, as a lawyer, state for the record that Mr. Anderson told you there were inaccuracies in his testimony, when he signed it?
“Mr. Danahar: At the particular time that he signed this yesterday, there was a discussion between us, and he acknowledged that there were inaccuracies, one of them being the very inaccuracy that Mr. Cohen has raised just recently.” (Emphasis added) (App. 254).

The defendant’s motion for a mistrial was denied.

When the court reconvened on the following day, the trial judge, in a lengthy instruction to the jury purporting to “clear up any misapprehension” regarding plaintiff’s right to correct his deposition, referred again to the plaintiff’s fear at the time his deposition was taken and advised the jury in response to the suggestion that the plaintiff had had a chance to change his deposition that “it isn’t as easy as that.” Over defense objection the judge then elicited from plaintiff that until the previous day no one had told the plaintiff that he had the right to change any inaccurate answers. ' The court further informed the jury of the previous day’s statement of plaintiff’s counsel, which the court had elicited in a colloquy, that he had never told plaintiff that he had a right to change inaccuracies in his deposition answers before signing and swearing to it. The court then instructed the jury at considerable length regarding the procedure under the federal rules governing a witness’s changing his pretrial deposition testimony, at the conclusion of which the defendant’s renewed motion for a mistrial was denied.

When, upon resumption of trial, defense counsel, without objection by the plaintiff, proposed to read into the record plaintiff's entire deposition testimony, the court, with the jury present, expressed irritation at counsel’s lack of courtesy in failing to advise it of their agreement that this procedure might be followed. (App. 282-83). Defense counsel responded that since there had been a suggestion that he was “picking and choosing” portions of plaintiff’s deposition he wished to avoid any such contention by following a procedure which would permit the jury to have the entire context in which plaintiff’s statements were made. There followed in the jury’s presence a sharp castigation of defendant’s counsel by the court, which is reproduced in the margin.

At this point in the trial the court ordered to his feet a spectator named Ardizzone and interrogated him in the jury’s presence regarding the spectator’s behavior, which the court characterized as showing “disgust openly with what I am doing.” (Later the court described the conduct as “slumping in your seat and turning your head with disgust.”) The spectator denied any such intention and agreed, in response to the court’s admonition to “behave yourself,” that he would do so. The court, however, then pursued his interrogation further, bringing out in the jury’s presence that the spectator was “with the carrier,” which provoked a defense motion for a mistrial that was denied. There followed a lengthy review by the court of its version of the proceedings that had led to its earlier statements, with blame being placed on defense counsel for the court’s predicament.

Prom this point on the record discloses the development of a hostile climate in the courtroom, with expressions by the trial judge in emphatic terms of his displeasure with defense counsel’s conduct of the trial. When defense counsel, for instance, without objection by plaintiff’s counsel, renewed his proposal to read plaintiff’s entire deposition to the jury, including portions that were consistent as well as those that were inconsistent with this trial testimony, in order to “give this jury, the entire flavor of what transpired on the deposition so that they were able to make a judgment on his statement yesterday that he was nervous, or didn’t understand,” the following transpired:

“The Court: Isn’t that what I said in substance yesterday?
“Mr. Cohen: Absolutely, your Hon- or, and I am trying to comply with your Honor’s—
“The Court: No you didn’t. You did not. I was the one who said exactly what you are saying now.
“Mr. Cohen: That’s right, sir.
“The Court: And you are saying it as though you thought of it.
“Mr. Cohen: Oh, no. Judge, I don’t mean to take pride of authorship in that, and I didn’t say that.
“The Court: Now look, mister, I’m getting incensed. First you bring along a ruffian into the courtroom. I don’t say that you conspired with him to have him behave the way he did in my sight. You are above that. But you did not comply with what I directed, and anybody who comes in here at 9:45 or 9:40 to do a job that I layed down is dead wrong and should never have allowed that to happen. There is no reason why this wasn’t completed between you gentlemen last night.
If you wanted to let it go until this morning you should have given yourselves ample time to do it thoroughly. I am not supposed to pickup your mess, your oversights, your failures that you can detect as well as I. You have an obligation to the plaintiff and you have an obligation to the defendant and you have got to do everything right, not this come today, come tomorrow attitude.
The record shows that the way this was done is deplorable, and I regret that the Court got such short shrift at the hands of counsel on both sides.
Let the record further show that Mr. Cohen saw fit to say in front of the jury that he asked to come to see the Judge a minute or two before 10:00 o’clock, and I have already answered that and I would like to also add that when he asked permission to come to the side the very first thing he said, when I inquired what else is there, he didn’t mention anything with regard to the deposition, as the record will show, and at the side bar I said, is there anything else, and he said, no, thank you.” (Emphasis added) (App. 296-97).

Eventually, with the consent of plaintiff’s counsel, plaintiff’s deposition was read in its entirety to the jury. However, at the outset of the reading the court, rejecting a juror’s offer to assist in the reading, remarked, “No, you are there to be sold a bill of goods.” (App. 366). The court furthermore criticized the reading of the entire deposition instead of selected portions, stating, “we have to sit here and have a lot of this stuff read. Entirely unnecessary, and not helpful at all, but there it is when you don’t listen to the Judge and try to figure out some other way.” (App. 431). Defense counsel was criticized by the court for spending “an inordinate amount of time” in reading the deposition and for eliciting from plaintiff a statement that the accident might have been caused by his slipping, since the dredge was in water.

On the issue of liability the defense offered testimony that shortly after the accident plaintiff had said the accident occurred when “the dredge lurched possibly because of a ground swell and he [plaintiff] was thrown over the drum, he [sic] left arm was caught in the cable and he wound around the drum and was tossed to the rear of it.” Defendant further relied on plaintiff’s pretrial deposition testimony to the effect that he did not know how the accident occurred and could not say if he “slipped.” The captain of the. dredge testified that following plaintiff’s accident he completed the job plaintiff had been doing by operating the winch alone, but in a manner somewhat different from that used by plaintiff. The captain stood to the right of the wire being hauled on to the drum, which placed him closer to the operating level and permitted him to keep his right hand on it at all times without leaning over the moving wire. Defendant then offered the testimony of a maritime expert on the operation of ship’s winches to the effect that only one man was needed to operate a winch of the type in question, that the proper method was for the operator to stand to the right side of the drum and incoming wire cable so that no part of his body need bend over the cable, and that it is not good safety practice to stand (as had the plaintiff) on the left side, touch the moving cable, or bend over the moving cable to operate the winch lever.

There being no competent proof that the accident was caused by a “fish hook” on the wire cable, the court eventually granted defendant’s motion to strike plaintiff’s testimony in which he had speculated that his accident might have been caused by a “fish hook.” At the close of the evidence plaintiff’s position, therefore, was that the defendant should have supplied a three-man crew to operate the winch and relay signals and that he was forced to stand in a dangerous position to the left of the moving wire cable so that he could move to the door for signals without stepping over the moving cable. The defendant’s contention in reply was that one man could have safely operated the winch by standing to the right of the cable with his hand constantly on the operating lever, turning off the winch and stepping over the inert cable when it was necessary to go to the cab door for signals, and that plaintiff had failed to show that an inadequate crew was the proximate cause of his accident.

The court delivered a lengthy charge (some 95 pages of the record) to the jury, to which defense counsel excepted on the ground that by tone, emphasis and repetition it favored plaintiff’s position. When the jury, after deliberating during the evening until midnight, resumed on the following morning the court gave an Allen charge. Following further deliberations the jury requested and received from the court a summary of its charge on negligence and contributory negligence, to a part of which defense counsel excepted.

The jury finally rendered a verdict awarding the plaintiff $500,000 less 50%, or $250,000, due to plaintiff’s contributory negligence. Defendant’s motion pursuant to Rules 50(b) and 59, F.R.Civ.P., for judgment n.o.v. or, in the alternative, for a new trial were denied.

DISCUSSION

Defendant concedes that liability may be predicated upon an inadequate or insufficient crew. Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724, 87 S.Ct. 1410, 18 L.Ed.2d 482 (1967); American President Lines, Ltd. v. Welch, 377 F.2d 501 (9th Cir. 1967); American President Lines, Ltd. v. Redfern, 345 F.2d 629 (9th Cir. 1965). However it urges that, assuming arguendo the inadequacy of the crew in this case, there was no proof that it was the proximate cause of plaintiff’s accident. We disagree. There was evidence which, viewed most favorably to plaintiff, would support an inference that with a larger crew the winch might have been turned off sooner or the plaintiff, had his duties been limited to guiding the spooling of the wire, would have been able to take greater precautions against being caught in the moving winch. Although there was contrary evidence, the issue was clearly one for the jury to resolve.

Defendant next contends that it was precluded from fully presenting its position and obtaining a fair trial by reason of the trial judge’s open partiality to the plaintiff’s claim, his hostility to the defense, and his erroneous rulings. Specifically defendant argues that (1) the court frequently took over the examination of witnesses to elicit testimony favorable to plaintiff and to dull the impact of proof that was helpful to the defendant, (2) made erroneous rulings that prevented defense counsel from fully impeaching the plaintiff (e. g., the limitation on the use of plaintiff’s pretrial deposition testimony), (3) demeaned and castigated defense counsel in the jury’s presence, (4) engaged in other highly prejudicial conduct (e. g., the chastisement of Mr. Ardizzone in the jury’s presence, leading to disclosure that he represented defendant’s insurance carrier), and (5) instructed the jury in terms and tone that exceeded the bound of fair comment. Before considering these assignments of error a brief review of the judge’s role in the conduct of a jury trial is advisable.

As we have frequently observed, the district judge, in conducting a criminal or civil trial, acts as more than a mere moderator or umpire. See United States v. Weiss, 491 F.2d 460 (2d Cir. 1974); United States v. Nazzaro, 472 F.2d 302 (2d Cir. 1973). His function is to set the tone of the proceedings and exercise sufficient control to insure that the trial will be an orderly one in which the jury will have the evidence clearly presented. See DiBello v. Rederi A/B Svenska Lloyd, 371 F.2d 559 (2d Cir. 1967). While participation by the trial judge in interrogation of witnesses may properly be done to clarify both legal and factual issues and thus minimize possible confusion in the jurors’ minds, “such intervention should not become the rule,” United States v. D’Anna, 450 F.2d 1201, 1206 (2d Cir. 1971), and must not be indulged in to the point where the atmosphere ceases to be one of “impartiality and detachment,” Pariser v. City of New York, 146 F.2d 431, 433 (2d Cir. 1945).

“He must not . . . usurp the functions either of the jury or of the representatives of the parties and must take care not to give the jury an impression of partisanship on either side. United States v. Curcio, supra, 2 Cir., 279 F.2d [681] at page 685; United States v. Brandt, 2 Cir., 196 F.2d 653.” United States v. DeSisto, 289 F.2d 833, 834 (2d Cir. 1961).

Ours remains an adversarial rather than an inquisitorial system, which depends heavily upon the functioning of legal counsel to elicit the evidence in a sequence and manner that will best enable him to fulfill his role as an advocate, provided the rules of evidence are observed. While a trial judge may understandably become impatient with counsel’s examination of a witness, either because of its ineptness, lack of clarity or organization, or for some other reason, the judge must exercise self-restraint in his interference lest “clarification” only create more confusion or the impression in the jurors’ minds that the judge is hostile to one party’s position. In short the trial judge is called upon to perform the difficult task of maintaining a delicate balance between lack of control on the one hand, and over participation on the other. In such circumstances review is of course an unusually difficult and delicate task.

“As we have recently observed in United States v. Nazzaro, 472 F.2d 302 (2d Cir. 1973), the task upon appellate review of determining whether a judge’s conduct has ‘improperly . shifted the balance against a defendant’ is a difficult one, especially since the printed record cannot convey the atmosphere, the tones of voice of judge, counsel and parties, and their facial expressions. See United States v. Boatner, 478 F.2d 737 (2d Cir. 1973). However, we are relegated to doing the best we can with the aid of the trial transcript, bearing in mind the substance or triviality of the various matters claimed to have been the subject of prejudicial conduct or remarks on the judge’s part. Experience teaches that quotations lifted out of the transcript can often be unintentionally misleading, since they usually fail to give a true or complete picture of the framework for and background of the allegedly prejudicial comments. Counsel, being advocates, also tend to attach excessive significance to some remarks and to overlook counterbalancing portions of the record. For these reasons it is essential, at least where appellant’s brief (as here) raises a substantial issue as to the trial judge’s fairness in conducting the trial, to make a ‘close scrutiny of each tile in the mosaic.’ ” United States v. Weiss, 491 F.2d 460, 468 (2d Cir. 1974) (footnote omitted).

Applying these principles here, the district judge from time to time did engage in extensive questioning of witnesses, particularly the plaintiff, coupled with statements as to the purpose and relevance of certain proof. In most instances, however, he appears from the record to have been seeking solely to clarify the evidentiary picture for the benefit of the jury, without any apparent prejudice to the defendant other than that which would normally accrue from proof of facts that might tend to establish plaintiff’s claim. At times, however, the court’s questioning was unquestionably prejudicial to the defendant. For instance its exploration at length into plaintiff’s “belief” that the accident had been caused by his gloved hand being caught on a “fish hook” was unfortunate for the reason that the testimony turned out to be mere speculation as plaintiff never did establish the existence of any such defect, which would have furnished strong support for his unseaworthiness claim. Defendant understandably maintains that, notwithstanding the court’s later striking of this testimony, continuing prejudice resulted from this questioning. Especially since the court, in its later charge to the jury, reminded the jury of the “fish hook” testimony and instructed that if plaintiff had been inclined to falsify his testimony he could have “insisted that it [the “fish hook”] was actually there.” This reference might better have been left unsaid, since the jurors might after being reminded of it have themselves concluded that the accident was caused by a “fish hook.” However, we must, in the absence of any further showing, assume that the jury abided by the court’s ruling.

The defendant suffered more serious prejudice when its counsel sought to impeach the plaintiff through use of his pretrial deposition and to inquire as to his failure to correct deposition testimony asserted on cross-examination to have been incorrect. Had the matter stopped at this point, the interplay between court and defense counsel would probably not have been sufficiently prejudicial to call for a new trial. However, from this point on the record reveals the development and display of a measure of hostility on the part of the court toward defense counsel, accompanied by questioning of plaintiff by the judge that might be construed as protective rather than as merely investigative in nature (e. g., bringing out plaintiff’s “nervousness” when he was deposed). The hostility continued with the court taking over the examination of the plaintiff and advising defense counsel in the jury’s presence that he was “wrong” in seeking to elicit from plaintiff that he had not sought to correct his pretrial testimony. Then came the scenes in which the court stated that plaintiff had not been advised regarding his right to make corrections, its advice to the jury that this had been confirmed by plaintiff’s counsel (even though the latter had not been examined under oath) and the Ardizzone incident in which the jury learned that defendant was insured.

In our view this series of courtroom exchanges and rulings were seriously prejudicial to the defendant. The credibility of the plaintiff, as the sole witness to the accident, regarding the manner in which it occurred was of crucial importance. This was later reflected by the jury’s difficulty in reaching a verdict, which was rendered only after a series of inquiries by it of the court, leading to supplemental charges, including an Allen charge.

It is true that the district court sought to remedy some of the confusion and prejudice by instructing the jury at length regarding the procedure required by the federal rules to be followed by a witness in correcting deposition testimony. However, these instructions, while technically correct, precluded the defense from ascertaining whether plaintiff called the errors to anyone’s attention and unduly magnified the procedural problem confronted by a witness seeking to correct his deposition testimony. In practice the procedure is relatively simple. The witness simply notes his correction and the reason for it in a word or two in the margin before signing and swearing to the transcript.

The important point for present purposes is that defense counsel should have been accorded the opportunity, without interference by the court, to explore this most important matter with the witness, bringing out for the jury’s benefit what the plaintiff had done when he discovered what he knew to be material errors in his deposition testimony and whether he had asked anyone if he might correct them. If this traditional procedure had been followed, plaintiff’s counsel would then have had the chance, in turn, to rehabilitate the witness by eliciting any circumstances, including his lack of knowledge or understanding of correction procedures, that would explain his failure to rectify his answers. This is the essence of the adversarial system and the function of trial counsel, both of whom in this case were experienced and not lacking in the skills required for adequate representation of clients in the trial of a civil action for damages for personal injuries.

Viewing the record as a whole we are persuaded that the cumulative effect of the court’s statements and rulings, including portions of its instructions to the jury, however well-intended, had a sufficiently prejudicial effect to require that the judgment be reversed and remanded for a new trial before another judge. We accordingly see no need to reach appellant’s third contention concerning the size of the damage award.

      . “Mr. Cohen: If your Honor please, I would like to make a motion to strike that testimony that he gave earlier today since it’s based on what could have been.
      “The Court: Sir, Will you give me a chance to have this thoroughly explored? That’s all I care about. I don’t care who is going where. All I want is that those people should know what is the testimony. That’s my job here. That’s all I care about.
      Now, listen. This morning I remember distinctly because I think I asked that question myself—
      “The Witness: Yes, sir.
      “The Court: When I was demonstrating it. Do you remember?
      “The Witness: Yes, sir.
      “The Court: It was with the drum. I asked you what happened and you said something to the effect that while you were feeding—
      “The Witness: The wire.
      “The Court: The wire, meaning the cable your hand got caught on to, your finger, to a fish hook in the cable.
      “The Witness: Yes, sir.
      “The Court: And before you knew it your hand was pulled right into the drum; right?
      “The Witness: Yes, sir.
      “The Court: What makes you say that there was a fish hook? What do you base that on? You didn’t see it with your eyes, did you? Did you see it with your eyes?
      “The Witness: No, sir.
      “The Court: All right, so how do you know it was a fish hook?
      “The Witness: Because my hand got caught.
      “The Court: So you felt it; is that what you mean?
      “The Witness: I felt my hand being pulled.
      “The Court: But how do you know it was pulled because of a fish hook?
      “The Witness: I believe there was no other reason?
      “The Court: I see. So you deduced— you figured it out that way, that it could not have been any other reason, it must have been a fish hook; is that what you mean?
      “The Witness: Yes, sir.
      “The Court: But actually that’s the sole reason for your saying there was a fish hook?
      “The Witness: My hand got caught and it was pulled.
      “The Court: Couldn’t it have been pulled without a fish hook?
      “The Witness: No.
      “The Court: So you figure in your mind that it must have been a fish hook?
      “The Witness: Yes, sir.
      “The Court: But actually you didn’t either feel or see a fish hook, am I right?
      “The Witness: Your Honor, I said something caught my hand and pulled it. The only thing I could imagine it could be was a fish hook.
      “The Court: All right, we have this answer. That’s his answer.” (App. 231-34).

      . “Mr. Cohen: May I renew my motion, your Honor?
      “The Court: After you are through developing the entire testimony with regard to it. He may have said something that — you have got to bear in mind that the development of testimony, which you know as well as I do, has a great deal to do with the ability of the witness to express himself. We can’t get witnesses made to order in the sense that they have the ability to employ the language which will best express what they want to utter and our function is to take the halt, those who have difficulty, and we have got to be patient enough to stay with it until we extract what it is they wish to convey. It may take 20 times as long, but that’s the only way. With such a witness, at first blush, an answer looks one way and pursuing it a little further, the answer takes on a different complexion. So, if you will bear with an impatient judge who is trying to exercise patience with a witness who concededly has limited powers of expression, which is not that to which he is accustomed, any more than I am accustomed to handling the tools with which he is familiar. If we will bear that in mind, then the Court will have a much clearer picture on which to predicate a ruling as to whether or not his testimony as to the fish hook stands or should be stricken.
      Thank you for your attention.” (App. 234-35).

      . The colloquy continued, with the court expressing irritation with defense counsel’s position.
      “Mr. Cohen: Your Honor referred to my opening and in my opening I said that the claim being made by Mr. Danahar in his opening was contrary to the sworn testimony given by this plaintiff just two months before. Now, in an effort to wedge themselves out of what they said two months before, we get a contention that ‘I was nervous when I testified two months before.’ Judge, you may believe it, or you may think the jury believes it, but I am not bound to accept it in representing my client. We don’t believe he was nervous or didn’t understand. These were simple questions in simple English, and I want to show that even if he was nervous at that time and didn’t well express himself in responding to very simple questions. He had ample opportunity in the two months that have elapsed since when he read this over twice, in the leisure of his home, not surrounded by lawyers, and in the times he spoke to Mr. Danahar, to make corrections of any inaccurate testimony he claims to have given and all I am saying to your Honor is that the Federal Rules permit such testimony to be corrected when it’s inaccurate.
      “The Court: You are ducking the essence of this, Mr. Cohen. I am sorry to have say that, but it’s quite clear that you are. It’s quite clear to me now that Mr. Danahar has spoken up, that Mr. Danahar never told this fairly ignorant, apparently ignorant witness that he could change the answers of the deposition if they did not accurately represent the truth. Whether the rule says so or not, the fact remains that Mr. Danahar did not inform this witness that he could make changes if the answers were not accurate or truthful. Mr. Cohen did not develop that this witness — I repeat, clearly restricted in intelligence — he did not bring out through the witness that the witness knew that the witness could change the answers of the deposition if they did not reflect accurately or truthfully the facts. It is quite clear that the witness and Mr. Danahar addressed themselves to one point, and that is does the deposition reflect the questions that were put and does the deposition reflect the answers that were given.
      Now, I see nothing to the abuse that Mr. Cohen is laboring under. He has gotten the witness to say that some of his answers were not accurate, even though the way they appear in the deposition was the very answer he gave. It seems to me that the very purpose that Mr. Cohen wishes to accomplish has been accomplished. If the jury wishes to adopt his interpretation, and insofar as saying your Honor may believe or the jury may believe or your Honor may think the jury believes — that has nothing at all to do with the issues involved here at all. I am not reflecting on whether I believe the witness or don’t believe the witness. I want the witness’s testimony, however, so the jury can know what his testimony is. To that end, I devoted a lot of time in order to find out just what it is that he wishes to convey. Frankly, I don’t hesitate to say, since Mr. Cohen raised it, that I have considerable doubt as to whether this witness entertained at the time of the deposition the fear and apprehension that he says.
      I am not sure one way or the other, but that, I repeat, has nothing at all to do with the Court’s endeavor, which was to lay before the jury what is the position of this witness with regard to the deposition, and that’s all I am concerned with.
      “The Court: Sir, the record is clear now.
      “Mr. Cohen: Yes, sir.
      “The Court: I think Mr. Cohen has— frankly, I think he pursued the matter beyond necessity. I think he got the witness to answer and was not content with it and as often happens on cross-examination, he overplayed his hand and now he is ready to shift the burden to the Judge because the Judge happened to say, did he have the power to make the accurate answer — to change the answer to reflect greater accuracy. My answer to all of that is simply that there is no harm whatever. Conceding Mr. Cohen is right, there is no harm whatever to bring that out at the appropriate time. It’s got nothing at all to do with what this witness has to convey with regard to his sworn testimony as to that deposition and its contents and what he did when he got it. When he got it, he read it twice from beginning to end and a third time he looked at extracts of it and it was just yesterday that he signed it under circumstances that the record eloquently demonstrates. The oath had to be administered to him in my presence. That’s how belated it was. But those are the facts and it’s clear, overwhelmingly clear that at no time was this witness told that he could change that deposition in order to have it reflect the accuracy that he now maintains it lacks. That’s all there is to it. At the appropriate time we will take up the point dealing with the rules. The jury has his testimony and 1 say, further, it would be pulling the wool over the jury’s eyes— which I am sure Mr. Cohen would not want to do any more than any of us — if we were to leave that record, let that record convey the impression as he sought to have the Court say that this witness had the power to change those answers without first developing that he was on notice that he could do so. That would be highly improper and I do not accuse Mr. Cohen of engaging in such tactic. The witness has sworn that these were the questions, these were the answers he gave and then counsel wants to have the Court charge the jury right there and then that the witness had the power to change those answers if he saw fit in order to accord with what he maintains is more accurate or more truthful.
      “Mr. Cohen: 1 asked for a charge at that time only because your Honor has just before that charged the jury that the witness could not make any corrections and I thought this would be the appropriate time to correct that.
      “The Court: There may be something in that, but I see nothing fatal. I deny the motion in toto. There is absolutely no merit to it as I see it. Now, gentlemen, the Court states further that you both ought to consider whether that entire deposition should be laid before the jury for the reasons already indicated, but for the additional reason that the witness has said that he was asked the same sort of question many times and that on many occasions he gave what he maintains were accurate answers, but on other occasions he did not, and the issue is whether or not Mr. Cohen has picked out only the inaccurate answers and neglected to give the answers of the witness on the other occasions in the course of the deposition which accord with the truth.” (App. 255-60).

      . “The Court: Are you through?
      “Mr. Cohen: Yes, sir.
      “The Court: What was the reason for that tactic?
      “Mr. Cohen: I am sorry, sir? What—
      “The Court: What was the reason for that tactic you just employed right now? Did I say anything to the contrary? Or did I say you owed it as a matter of courtesy to let me hear what your opponent has to say with regard to opposition to what he—
      “Mr. Cohen: I have no objection to that. But I understand that the practice is, your Honor, that I have a right to start to read, when I come to something he objects to he has the right to stand up and object. That is the fashion, it has always been done to my experience.
      “The Court: Well, you are all wrong and you know full well you are all wrong. All you want to do is make a recital. I will let you make a recital at the appropriate time. I don’t want you doing things or saying things that are contrary to my understanding of what took place.” (App. 284).

      . “[The Court]: ... I repeat, yesterday afternoon I told counsel that I think that substantial portions — Who is that man over there? Get up, sir. On your feet. What is your name?
      “Mr. Ardizzone: Mr. Ardizzone.
      “The Court: Are you a witness?
      “Mr. Ardizzone: No, sir.
      “The Court: Are you interested in this case?
      “Mr. Ardizzone: Just to watch the proceedings.
      “The Court: Are you a lawyer?
      “Mr. Ardizzone: No, sir.
      “The Court: Well then, you sit there with respect. Say anything and do anything you want outside. Did you understand what I said?
      “Mr. Ardizzone: Yes, sir.
      “The Court: Get up on your feet when I talk to you.
      “Mr. Ardizzone: Excuse me, sir.
      “The Court: I won’t have you show disgust openly with what I am doing. I know when a man shows it. Do anything you want outside, mister, not in my presence.
      “Mr. Ardizzone: Excuse me, sir. It wasn’t my intention.
      “The Court: Well then, behave yourself.
      “Mr. Ardizzone: Yes, sir.
      “The Court: Come forward. Come forward. Give your name and address for the record. Stand right there. What’s your name?
      “Mr. Ardizzone: Roy Ardizzone.
      “The Court: Where do you live?
      ■ “Mr. Ardizzone: 2047 East 13th Street, Brooklyn.
      “The Court: Are you known to these parties?
      “Mr. Ardizzone: Which parties? Excuse me.
      “The Court: The plaintiff or the defendant?
      “Mr. Ardizzone: To Mr. Cohen.
      “The Court: What have you got to do with Mr. Cohen?
      “Mr. Cohen: May we approach the bench, your Honor?
      “The Court: No. I want this out in the open. What have you got to do with Mr. Cohen?
      “Mr. Ardizzone: I’m with the carrier.
      “The Court: You are with the carrier?
      “Mr. Ardizzone: Yes, sir.
      “The Court: Sit down.”
      (App. 284-86).
      It later was developed that Ardizzone was the manager of the compensation department of the Manhattan office of Kemper Insurance Company, which is the insurance carrier for the defendant. Out of the jury’s presence the court interrogated him and rejected his apology and denial of intent to show disrespect, as follows:
      “The Court: Now, Mr. Ardizzone, I want you to know, and I want the record to show that you distinctly showed in my presence a disrespect by slumping in your seat and turning your head with disgust.
      I have been a fact finder for forty-five, fifty years. I have disbarred lawyers in my time and helped remove Judges. I have exposed crooks in Government and in private industry. I’m a pretty good fact finder, and I know when a man misbehaves in my presence.
      “Mr. Ardizzone: May I make a comment, sir?
      “The Court: No, I want the record to show that I intend to explore this further. You will show respect, not for me, I don’t care about your respect, mister, but for the courts. Some of you fellows act like cheap bail bondsmen. You belittle the courts. You belittle Judges. You sneer. You snort.
      Now, what do you want to say?
      “Mr. Ardizzone: I’m sorry if I gave that impression believe me. That was not my intent.
      “The Court: You are false. It was your intent and you clearly displayed it. And I may very well hold you in contempt.
      “Mr. Ardizzone: I’m sorry if I gave that impression, but it’s—
      “The Court: You are not sorry. That is hypocritical. You are just using your mouth. I repeat, your denial is false.”
      (App. 291-92)

      . “Mr. Cohen: I respectfully ask for a mistrial, if your Honor please.
      “The Court: Denied. Let the record show that yesterday afternoon, on the record, I pointed out that Mr. Cohen possibly inadvertently had given the jury the impression that this witness had been aware that he had the right to change any answer in the deposition, and that he didn’t do it. And I said repeatedly to Mr. Cohen, you know full well that if the witness wasn't told about it he could not possibly have made any change.
      I then turned to Mr. Danahar and I said, what about it? Did you tell Anderson that he could make any change he found necessary, or have it recorded? And he said, no. And he repeated it before you this morning.
      I then said, yesterday afternoon, gentlemen, I think it best that you sit down, in fact, I direct you to sit down as lawyers should and go over the deposition and see what portions of the deposition you can agree on should be placed before the jury. ■They shouldn’t be loaded down with things that aren’t pertinent. In a deposition there is a lot of material sometimes that is not relevant.
      Both of them promised they would do so. I then said, now, look, if there are portions that you disagree on I will have to resolve it. See what you can, however, agree upon.
      You heard it. You were here. I made it clear to Mr. Cohen right in your presence that that was what the agreement was last night, and I was to be told this morning what portions they agreed on and what portions they didn’t agree on.
      Instead Mr. Cohen stands up and says, I want to put the whole deposition in evidence. Mr. Danahar said the whole thing shouldn’t go into evidence, and I object to certain parts of it.
      I then said, as the record will show, you should have first told me, Mr. Cohen, what you people had agreed on pursuant to my direction, and what you did not agree on. You don’t suddenly ignore what the Judge said you were to do, and then say, I offer it in evidence. That can be done later.
      Right now I want to know what they did with my direction, and I want to know what Mr. Danahar has to say with regard to any objections. Therefore I say it was totally unnecessary for Mr. Cohen to get up and make his last recapitulation of what was already clear. That is the status of the record.
      I will excuse the jury and take up these questions of law. What did you want to say before the jury leaves?
      “Mr. Cohen: I would like to say for the record that unfortunately I am placed in a position of confrontation with the Court which is, I believe, an unfortunate thing. A climate has been created in this courtroom where I cannot possibly properly represent the interests of my client. I regret very much it has come about, your Honor. We have known each other for a long time. I sincerely regret under all the circumstances I am really compelled to renew my motion for a mistrial. I don’t think I can properly do justice for my client in this case.
      “The Court: Very well, that is your opinion. I see no reason why a Judge should not have the right to say what he thinks, and I intend to say it as long as I draw a breath.
      You may not like it, sir. I say again to you, that you were wrong.”
      (App. 286-89).

      . Portions of the charge could be construed as leaning in favor of plaintiff’s claims. For instance, in lengthy instructions on the subject of damages the court stated:
      “Do you believe him when he says he can’t hold his baby in his left arm? If you do, is that a matter of difference? Is his earning power the only thing that counts in life? Or is it the ability to hold a baby in your left arm? If it’s true, and if you believe it. Is it true that he can’t play pool? If you believe it, what is that worth?
      “You may want to read books, play golf, work in a laboratory, be a teacher. He wants to play pool. Nothing wrong with that; if you believe him to be deprived of that privilege. The law says it is a matter up to you.
      “Now, there are varying degrees of pain and suffering. The plaintiff contends that the proof warrants your finding that he is now and always will be experiencing substantial periods of pain; that in his case there are few compensatory physical functions upon which he can rely so that life can have its former zest and satisfaction.” (App. 907-08).


source: Caselaw Access Project

license: Public Domain

text:
    John BURNS et al., Plaintiffs-Appellants, v. Richard J. ELROD, Individually and as Sheriff of Cook County, Illinois, et al., Defendants-Appellees.
    Nos. 71-1285, 72-1541.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 23, 1973.
    Decided Jan. 30, 1975.
    Rehearing Denied April 24, 1975.

      John C. Tucker, Gerald D. Chiss, Chicago, Ill., for plaintiffs-appellants.
    Bernard Carey, State’s Atty., Paul P. Biebel, Jr., Asst. State’s Atty., Robert E. Wiss, Thomas A. Foran, Raymond F. Simon, Chicago, Ill., for defendants-appellees.
    Before KILEY, Senior Circuit Judge, and CAMPBELL and GRANT, Senior District Judges.

       Senior Circuit Judge Roger J. Kiley, deceased, did not participate in the decision in this case.

       Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.

       Senior District Judge Robert A. Grant of the Northern District of Indiana is sitting by designation.

   WILLIAM J. CAMPBELL, Senior District Judge.

Plaintiffs appeal from two orders of the United States District Court for the Northern District of Illinois, the first denying their motion for a preliminary injunction and the second dismissing their complaint for failure to state a claim upon which relief might be granted. We reverse and remand the cause for further proceedings not inconsistent with the views expressed herein.

The individual plaintiffs, with one exception, were employees of the Office of the Sheriff of Cook County, Illinois, on and before December 7, 1970. They were not protected by Civil Service or other laws against summary discharge from their employment. Subsequent to December 7, 1970, the date on which Richard J. Elrod took office as Sheriff of Cook County, these plaintiffs were fired, allegedly because they were either members of the Republican rather than the Democratic Party, did not have the requisite political sponsorship from the Democratic Party or because they failed to pledge their political allegiance to, work for or contribute to the Democratic Party. Sheriff Elrod is alleged to be a Democrat. Plaintiff Fred Buckley, at the time the complaint was filed, was still employed by the Sheriff of Cook County, but alleged that he was in “imminent danger” of being fired for the same reasons that allegedly caused the other plaintiffs’ dismissals.

The defendants include Richard J. Elrod, Sheriff of Cook County, at whose direction the dismissals are claimed to have been made; Richard J. Daley, President of the Democratic Organization of Cook County and Chairman of the Democratic County Central Committee of Cook County; the Democratic Organization of Cook County; and the Democratic County Central Committee of Cook County. Plaintiffs charged that Mr. Daley and the defendant organizations were also responsible for the dismissals of plaintiffs, alleging that Mr. Elrod effected the dismissals “under the direction and control of and in conspiracy” with these defendants.

The gravamen of plaintiffs’ complaint is that, because their dismissals were based upon their political association and beliefs, defendants’ conduct violated their rights under the First and Fourteenth Amendments of the Constitution of the United States. As relief, plaintiffs prayed for a declaration of their rights, compensatory and punitive damages, and preliminary and permanent injunctions restraining defendants from conditioning plaintiffs’ employment on constitutionally impermissible grounds, restraining further dismissals on such grounds and ordering reinstatement for unlawfully dismissed employees.

On the grounds that loss of employment did not constitute a sufficient showing of irreparable injury and that plaintiffs had an adequate remedy at law, Judge Hoffman denied the plaintiffs’ motion for a preliminary injunction. Subsequently, Judge Bauer granted defendants’ motion to dismiss for failure to' state a claim upon which relief might be granted. In reaching this conclusion, Judge Bauer relied upon the decision of the Court of Appeals for the Second Circuit in Alomar v. Dwyer, 447 F.2d 482 (1971), cert. denied 404 U.S. 1020, 92 S.Ct. 683, 30 L.Ed.2d 667 (1972). Alomar concluded that there was no constitutional prohibition against the dismissal of governmental employees because of their political affiliations or beliefs.

Subsequent to these orders of the district court, this Circuit announced its decision in Illinois State Employees Union v. Lewis, 473 F.2d 561 (1972), cert. denied, 410 U.S. 943, 93 S.Ct. 1370, 35 L.Ed.2d 609 (1973) which refused to follow the reasoning in Alomar, holding instead that the dismissal of a public employee, not otherwise protected by Civil Service, because of his or her political associations or beliefs violates the First and Fourteenth Amendments of the Constitution of the United States. Although defendants argue that Lewis was wrongly decided and invite our reconsideration thereof, we decline to do so for the scholarly and persuasive reasons articulated in Judge Stevens opinion in Lewis. Plaintiffs’ allegations that they were fired or threatened with dismissal because they belonged to a political party other than that of the office holder’s political party, state a legally cognizable claim entitling them to an opportunity to prove their case.

Defendant Elrod resists this conclusion on the ground that under the rationale of Lewis, the plaintiffs occupy “policy-making” positions as a matter of law. It is maintained that the plaintiffs were deputy sheriffs and that, under Illinois law, this makes them public officials rather than public employees. Lewis recognized “the public executives right to use political philosophy or affiliation as one criteria in the selection of policy-making officials” and that “considerations of personal loyalty, or other factors besides determination of policy, may justify the employment of political associates in certain positions.” Illinois State Employees Union v. Lewis, 473 F.2d 561, 574 (1972). These factors were characterized as a justification for an otherwise impermissible dismissal.

Defendant Elrod reasons that since deputy sheriffs are public officials their dismissal for partisan political reasons is justified under Lewis. We fail to see how the label “public official” or “public employee” advances the real inquiry on whether the particular employee was “engaged directly or indirectly in the formulation or implementation of policies” of the governmental office or agency involved. Illinois State Employees Union v. Lewis, 473 F.2d 561, 578 (Campbell, J., concurring) (1972). The “justification” or defense turns on the specific duties and responsibilities of the particular employee, not his title. Moreover, it appears that the basis for describing deputy sheriffs as “public officials” no longer exists in Illinois, as Section 9 of Article X of the 1870 Constitution of Illinois, S.H.A., was not carried over into the 1970 Constitution of Illinois. We conclude, therefore, that the issue of whether plaintiffs were policy-making employees who may be dismissed for partisan political reasons is a matter of factual defense to be established by defendants at trial.

We consider next the question concerning the denial of plaintiffs’ motion for a preliminary injunction. The district court’s order, by holding that the loss of employment does not constitute sufficient irreparable harm and that the plaintiffs have an adequate remedy at law, suggests that a preliminary injunction would never be appropriate in this type of case. We must reject this conclusion, for clearly more is involved than a simple loss of employment. What lies at the heart of these cases is the constitutional right of governmental employees to associate freely with political groups of their choice without official reprisal for such affiliation. See Illinois State Employees Union v. Lewis, 473 F.2d 561 (1972), cert. denied, 410 U.S. 943, 93 S.Ct. 1370, 35 L.Ed.2d 609 (1973); Kiiskila v. Nichols, 433 F.2d 745 (7th Cir. 1970). Inasmuch as this case involves First Amendment rights of association which must be carefully guarded against infringement by public office holders, we judge that injunctive relief is clearly appropriate in these cases. Since, under Lewis, plaintiffs have made a sufficient showing of probability of success on the merits, the cause is remanded to the district court with instructions to enter appropriate preliminary injunctive relief during the pendency of this cause.

The complaint here was filed by plaintiffs “on behalf of themselves and all other persons who were employees of the Sheriff of Cook County on December 7, 1970 and who were not protected by Civil Service or other laws against arbitrary discharge from their employment.” The district court made no determination regarding the appropriateness of the class action vehicle. As in Lewis, we observe that:

“Whether the district court should now determine that a class action is appropriate, or if so, how the class or classes should be defined, either for discovery or trial purposes, are matters best apprised by the district court in the first instance.” Illinois State Employees Union v. Lewis, 473 F.2d 561, 576 (1972).

Although the class action question must first be determined by the district court, we perceive some threshold difficulties attending that ■ determination. While questions of law may be common to class members, factual issues relating to the reasons for discharge may vary depending upon the individual, as may the asserted justification that an individual occupied a policy-making, position. Finally, assuming plaintiffs can establish liability, the issue of appropriate relief may depend upon factual matters unique to various members of the asserted class. In making these observations, we express no views on the district court’s ultimate determination of the class action issue. Rather, they are intended to illustrate the topics of inquiry that will doubtless occupy the district judge’s attention on remand.

For the reasons stated, the two orders of the district court appealed from are reversed and the cause is remanded to the district court for further proceedings not inconsistent herewith.

Reversed and remanded.

      . See, Nunnery v. Barber, 503 F.2d 1349 (4th Cir. 1974).

      . See also, Note, Patronage Dismissals: Constitutional Limits and Political Justifications, 41 U.Chi.L.Rev. 297 (1974).

      . See e. g., Indiana State Employees Ass’n, Inc. v. Negley, 365 F.Supp. 225 (S.D.Ind.1973), aff'd 501 F.2d 1239 (7th Cir. 1974).


author: O’SULLIVAN, Senior Circuit Judge. ENOCH, Senior Circuit Judge

text:
    HONEYWELL, INC., Plaintiff-Appellant, v. METZ APPARATEWERKE, Defendant-Appellee.
    No. 72-1987.
    United States Court of Appeals, Seventh Circuit.
    Heard Sept. 24, 1973.
    Decided Jan. 7, 1975.

      Sheldon W. Witcoff, Chicago, Ill., for plaintiff-appellant.
    Clarence J. Fleming, Chicago, Ill., for defendant-appellee.
    Before FAIRCHILD, Circuit Judge, and ENOCH and O’SULLIVAN, Senior Circuit Judges.

       Senior Circuit Judge Clifford O’Sullivan of the Sixth Circuit, sitting by designation.

   O’SULLIVAN, Senior Circuit Judge.

Plaintiff-appellant Honeywell, Inc. (Honeywell) brought this action under the Patent Act of 1952, 35 U.S.C. § 1 et seq., in the United States District Court for the Northern District of Illinois, alleging that the four named defendants had infringed two United States patents owned by plaintiff. Upon motion of one of the defendants, Metz Apparatewerke (Metz), appellee here, the District Court determined that it lacked personal jurisdiction over such appellee and dismissed the complaint as to it. Honeywell, Inc. v. Metz Apparatewerke, 353 F.Supp. 492 (N.D.Ill.1972). Insofar as this appeal is concerned, the validity of plaintiff’s patents is not challenged by defendant-appellee Metz; neither does appellee deny that the products manufactured by it and distributed by its codefendants in the United States infringed plaintiff’s patents.

We reverse and remand.

I. STATEMENT OF FACTS'

Appellant Honeywell is a Delaware corporation with its principal place of business in Illinois. It is the assignee of United States Letters Patent No. 3,519,-879 and United States Reissue Letters Patent No. 26,999, both of which cover an electronic photographic flash unit. Appellee Metz is a proprietorship organized under the laws of the Federal Republic of Germany, and produces computerized, electronic photographic flash units which are manufactured in West Germany and shipped to the United States f.o.b. West Germany, with instructions in English. The three defendants below that are not parties to this appeal are: (1) Ehrenreich Photo-Optical Industries (a New York corporation), and (2) Ehrenreich Photo-Optical Industries of Illinois, Inc., both United States distributors of Metz flash equipment, and (3) Bass Camera Company, a Chicago retailer of Metz flash units. The two Ehrenreich firms are separate corporate entities, the Illinois corporation being a wholly owned subsidiary of the New York corporation. The distinction, if any, between these two is not germane to this appeal. Therefore, Ehrenreich of New York and Ehrenreich of Illinois are referred to collectively herein as “EPOI.”

In early 1970, Honeywell granted a license under its patents to two German companies — Rollei and Bauer-Borsch— under which the licensees were permitted to sell electronic flash units in the United States. In June of 1970, Metz began negotiating with Honeywell for a similar license, but negotiations ultimately reached an impasse, and in October, 1970, Metz informed Honeywell that “[s]ince a further delay cannot be accepted . . .1 have decided to effect deliveries [of Metz units] to the United States immediately.” On August 24, 1970, Metz and EPOI had entered into an exclusive distribution agreement, and in November, 1970, after notifying Honeywell, Metz began to market various models of its allegedly infringing electronic flash units in the United States through EPOI. In December, 1970, and continuing since then, defendant Bass Camera Company has been selling such Metz products at retail, having purchased them from EPOI.

The August, 1970, distribution agreement between Metz and EPOI contained the following terms:

(1) Metz appointed EPOI its exclusive distributor of flash units and components within the United States.
(2) EPOI was to deal with its own customers and with Metz as an “independent trader,” and was to bear all expenses arising from its business affairs.
(3) EPOI agreed to exploit its territory in the marketing of Metz flashes, to adequately publicize the units, and to provide after-sale repair service.
(4) EPOI was limited in the number of products it could sell in competition with Metz products. It could not export Metz products outside the granted territory, or delegate its sales obligation, or represent Metz in legal transactions.
(5) EPOI was held to a set quota of Metz products.
(6) Metz agreed to furnish publicity material to EPOI. EPOI was required to submit quarterly reports on its sales.
(7) Goods were to be delivered f.o.b. German seaport or German border, and EPOI assumed all transportation' and insurance expenses thereafter incurred.
(8) Metz warranted its products as to merchantability. After-sale service and warranty repairs were to be done at EPOI’s expense, with 3% of invoice net value to be credited to EPOI as reimbursement for such work.
(9) EPOI was granted certain trademark rights.
(10) Metz agreed to indemnify and hold EPOI harmless regarding any claims of patent infringement.
(11) Metz was granted the right to inspect EPOI premises and obtain information regarding EPOI’s affairs.
(12) The parties had certain termination rights and obligations.
(13) The contract was not assignable.
(14) All contract provisions were to be interpreted according to German law, and Nuernberg was designated as the court of exclusive jurisdiction, unless Metz chose to use New York law and courts.

The record also shows that EPOI serviced and performed warranty work on Metz flash units in Chicago under the name of “Metz Flash ' Service”; and, there was evidence also that on May 17, 1971, the following notice was published in an American trade journal, Photo Weekly:

To: ALL PHOTO RETAILERS
Re: METZ/MECABLITZ FLASH
EQUIPMENT
It has come to our attention that rumors are being circulated throughout the trade to the effect that purchasers of the Metz MECABLITZ flash guns being distributed in this country by Ehrenreich Photo-Optical Industries, Inc. will be liable for damages because of alleged infringement of certain patents owned by Honeywell, Inc.
These rumors are totally without foundation.
Honeywell has instituted a suit in Chicago against Metz and Ehrenreich. Metz has agreed to indemnify and hold harmless Ehrenreich and its customers for any and all claims of patent in-' fringement. The issues of validity of the Honeywell patents and their alleged infringement are being vigorously contested by the defendants in the Chicago litigation.
Ehrenreich Photo-Optical Industries, Inc.
Garden City, New York 11530.

Honeywell commenced suit against Metz on February 26, 1971, and on January 14, 1972, leave to file an amended complaint was granted. Insofar as this appeal is concerned, the amended complaint asserted, in summary, that Metz had infringed Honeywell’s patents in violation of 35 U.S.C. § 271. On March 22, 1971, Metz moved to dismiss the complaint under Rule 12(b) of the Federal Rules of Civil Procedure, contending primarily that the court lacked in personam jurisdiction over Metz.

After an amendment to the original complaint was allowed and filed, Metz renewed its motion to dismiss, and on September 6, 1972, the District Judge granted the motion reciting inter alia that:

“Metz does not have sufficient minimum contacts with the State of Illinois as to warrant this Court exercising in personam jurisdiction over it.
“This Court is of the opinion . that Metz has not transacted any business within the State of Illinois. .
Consequently, this Court holds that Metz is not amenable to service under Illinois’ ‘long-arm’ statute.” 353 F.Supp. at 495.

II. THE ISSUE ON APPEAL

Appellant contends that exercise of personal jurisdiction over Metz was warranted under a subsection of the Illinois long-arm statute, to-wit: Ill.Rev.Stat. Ch. 110, § 17(l)(b), which reads as follows:

“§17. (Civil Practice Act, § 17). Act submitting to jurisdiction— Process
(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any such acts:
* * * * * *
(b) The commission of a tortious act within this State;”
(Emphasis supplied.)

and that Metz was guilty of a “tortious act within this State [Illinois]” by virtue of 35 U.S.C. § 271(b) which provides that

“Whoever actively induces infringement of a patent shall be liable as an infringer.”

III. DID METZ COMMIT A TORTIOUS ACT IN ILLINOIS?

Infringement of a patent is a tort, which would bring Metz within the ambit of Ill.Rev.Stat. Ch. 110, § 17(l)(b) provided that, under the applicable patent law, Metz could be deemed an infringer, and provided that the infringement, if any, was “committed” in Illinois. In Welch Scientific Co. v. Human Engineering Institute, Inc., 416 F.2d 32, 34 (7th Cir. 1969), cert. denied, 396 U.S. 1003, 90 S.Ct. 552, 24 L.Ed.2d 494 (1970), this Court said

“The Illinois long arm statute, Ill.Rev. Stat. Ch. 110, § 17, provides for service when a person or his agent has committed a ‘tortious act’ within the state. Here, defendant is charged with infringing plaintiff’s patent, a tortious act, in Illinois.” 416 F.2d at 34.

In Carbice Corp. v. American Patents Development Corp., 283 U.S. 27, 33, 51 S.Ct. 334, 75 L.Ed. 819 (1931), the Supreme Court said

“Infringement, whether direct or contributory, is essentially a tort, and implies invasion of some right of the patentee.” 283 U.S. at 33, 51 S.Ct. at 336.

See also, Waltham Watch Company v. Hallmark Jewelers, Inc., 336 F.Supp. 1010, 1011 (N.D.Ill.1971).

Section 271(b), of Title 35 U.S.C., upon which appellant relies, may be broadly described as an aiding and abetting statute, and was intended as part of a codification of the case law doctrine of “contributory infringement.” This doctrine was developed at the end of the nineteenth century to prevent appropriation of the benefits of patented inventions through indirect means. 1952 U.S. Code Cong. & Admin.News 2394, 2402. Thus § 271(b) was not designed to subject to liability a party who actually infringes a patent. Gould-National Batteries, Inc. v. Sonotone Corp., 130 U.S. P.Q. 26, 29 (N.D.Ill.1961), but Metz has not been charged with direct infringement through manufacture, use or sale of an invention within the United States. Honeywell alleges that Metz makes and sells the accused devices, but these actsi'j are said to occur in Europe rather than in this country, and although the patent! laws of the United States do not have/ extra-territorial effect, “active inducement” may be found in events outside/ the United States if they result in a/ direct infringement here. Engineered Sports Products v. Brunswick Corp., 362 F.Supp. 722, 727 (D.Utah 1973); Cf., Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 526-527, 92 S.Ct. 1700, 32 L.Ed.2d 273 (1972). The conduct charged to Metz would, if proved, support a finding that Metz was seeking to induce EPOI to infringe appellant’s patents.

By its terms, § 271(b) requires that liability be found only if the inducement is “active,” in the sense that to be held as a contributory infringer, one must purposefully cause, urge or encourage another to infringe. Fromberg, Inc. v. Thornhill, 315 F.2d 407, 411 (5th Cir. 1963); Marston v. Gant, 351 F.Supp. 1122, 1125 (E.D.Va.1972). Analyzing Honeywell’s contentions from this point of view, it can hardly be said that Metz’s alleged involvement in the events related to this case was passive in nature. The essence of the distribution agreement between Metz and EPOI was Metz’s intention to invade the United States market at a time when Metz was fully aware of Honeywell’s United States patents. Metz did not accomplish this purpose directly, but it did provide its distributor, EPOI, with the means to do so. Shipments were made in the knowledge that, under the agreement, distribution would inevitably take place in the United States, and to that end, Metz even furnished EPOI with instruction booklets in English. In addition, Metz agreed to assist in publicizing the flash units; Metz had the right to inspect and obtain information about EPOI’s business affairs; Metz agreed to indemnify EPOI for patent infringement claims; and EPOI received credit against invoices from Metz for after-sale repairs performed in the United States. This network of arrangements is certainly indicative of an active inducement to infringe.

There remains, however, the issue of the second requirement of the Illinois long-arm statute: i. e., that the tortious act be committed “within the State.” In this regard, it need only be said that under Illinois law, it is now well settled that the term “tortious act” inevitably includes the concept of injury, and for the purposes of Ill.Rev.Stat. Ch. 110, l§ 17(1)(b), the situs of the tort is the place where the injury occurs. Consolidated Laboratories, Inc. v. Shandon Scientific Co., 384 F.2d 797, 802 (7th Cir. 1967); Waltham Watch Company v. Hallmark Jewelers, Inc., 336 F.Supp. 1010, 1011 (N.D.Ill.1971); Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 435-436, 176 N.E.2d 761, 762-763 (1961).

Metz attempts to distinguish Gray, supra, in which personal jurisdiction was exercised over a non-resident defendant who had negligently manufactured a safety valve in a state other than Illinois, and had shipped the valve to Pennsylvania, where it was incorporated in a water heater by a third party. The heater was then shipped to Illinois (by the third party), where it subsequently exploded, injuring the plaintiff. Metz contends that in Gray

“[the non-resident defendant] directly participated in the acts which constituted the commission of a tort in the State of Illinois. Personal jurisdiction over [the non-resident defendant] was not based on the mere physical presence of its products within Illinois.
* * * * * *
“The acts of Metz under any theory of inducement of infringement occurred outside of the State of Illinois. Therefore, Metz is not a participant to the alleged tortious conduct which occurs in Illinois. Thus, Gray and other products liability decisions are inapposite to the present case . . . ” (Appellee’s Brief at 9; emphasis in original.)

We believe that the factual distinctions between Gray and the instant case create no effective legal or theoretical difference between the two, in light of the nature of the “active inducement” provision of 35 U.S.C. § 271(b). An induced infringement, such as that alleged by Honeywell, is a tortious act committed within the state of Illinois, within the meaning of Ill.Rev.Stat. Ch. 110, § 17(l)(b), even though it is not asserted that Metz performed any specific act in that state.

We conclude that the facts of this case meet the statutory requirements for exercise of personal jurisdiction by the Court below. There remains, however, the question as to whether such exercise of jurisdiction offends the Constitution.

IV. DUE PROCESS LIMITATIONS

Ultimately, amenability to extra-territorial personal jurisdiction is a question of due process. The long-standing'“presence” test of due process set forth in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878) has been considerably eroded in favor of the less stringent requirement announced in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) that a defendant must

“have certain minimum contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” 326 U.S. at 316, 66 S.Ct. at 158.

The same rule was adhered to in McGee v. International Life Insurance Co., 355 U.S. 220, 222, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957).

Although the parties to this appeal have not raised the point in arguing the issue of minimum contacts, we recognize, of course, that International Shoe and its direct progeny reached the federal judiciary either by way of review of state court judgments or by way of diversity jurisdiction, and as a result, the holdings in those cases have been framed in terms of restraints on state power. In this litigation, on the other hand, a federally created right is at issue, and due process is properly a matter for examination in light of the Fifth Amendment rather than the Fourteenth Amendment.

That is not to say, however, that the International Shoe line of cases is irrelevant to our inquiry here. The due process clause of the Fifth Amendment is essentially a recognition of the principles of justice and fundamental fairness in a given set of circumstances, Galvan v. Press, 347 U.S. 522, 530, 74 S.Ct. 737, 98 L.Ed. 911 (1954); Aetna Insurance Company v. Hartshorn, 477 F.2d 97, 100 (5th Cir. 1973), and, so viewed, on the facts of this case, we can perceive no operative difference between the concept of due process as applied to the states and as applied to the federal government. This and other courts have reached this result, explicitly or tacitly, and have applied the “minimum contacts” standard to federal question cases in which in personam jurisdiction was at issue, and we deem it appropriate to do so here. Fisons Limited v. United States, 458 F.2d 1241, 1250 (7th Cir. 1972), cert. denied, 405 U.S. 1041, 92 S.Ct. 1312, 31 L.Ed.2d 581 (1972); Fraley v. Chesapeake and Ohio Railway Company, 397 F.2d 1, 3-4 (3d Cir. 1968); Volkswagen Interamericana, S. A. v. Rohlsen, 360 F.2d 437, 440 (1st Cir. 1966), cert. denied, 385 U.S. 919, 87 S.Ct. 230, 17 L.Ed.2d 143 (1966); Stanley v. Local 926 of Op. Eng., AFL-CIO, 354 F.Supp. 1267, 1271 (N.D.Ga.1973); SCM Corporation v. Brother International Corporation, 316 F.Supp. 1328, 1333-1334 (S.D.N. ¥.1970); Securities and Exchange Commission v. Myers, 285 F.Supp. 743, 748-749 (D.Md.1968); Japan Gas Lighter Association v. Ronson Corp., 257 F.Supp. 219, 232 (D.N.J.1966). Cf., Goldberg v. Mutual Readers League, Inc., 195 F.Supp. 778, 782-783 (E.D.Pa.1961); Lone Star Package Car Co. v. Baltimore and O. R. Co., 212 F.2d 147, 154-155 (5th Cir. 1954).

The question of minimum contacts has a variety of facets, but its essence is that due process restricts the exercise of in personam jurisdiction to instances in which it would not be unfair to a defendant. Milosavljevic v. Brooks, 55 F.R.D. 543, 547 (N.D.Ind.1972). Thus, the number and extent of contacts which will support exercise of personal jurisdiction are not quantifiable and cannot be determined by application of a rigid formula or rule. In other words, the issue of minimum contacts turns on the specific facts of each case, and the existence or absence of jurisdiction depends on an assessment of the quality and nature of a defendant’s activity. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1233 (1958). The test, then, is a flexible one which emphasizes the reasonableness of subjecting a defendant to suit; and the proper inquiry is whether a non-resident defendant can be said to have invoked, by act or conduct, the benefits and protection of the laws of the forum. International Shoe, supra, 326 U.S. at 319, 66 S.Ct. 154; Hanson, supra, 357 U.S. at 253, 78 S.Ct. 1228; Hutter Northern Trust v. Door County Chamber of Commerce, 403 F.2d 481, 484 (7th Cir. 1968); Consolidated Laboratories, Inc. v. Shandon Scientific Co., 384 F.2d 797, 801 (7th Cir. 1967).

Applying these principles to the case at hand, we hold that Metz had the requisite minimum contacts with the state of Illinois to subject.it to the personal jurisdiction of the District Court. Unlike the situation in Marston v. Gant, 351 F.Supp. 1122 (E.D.Va.1972), upon which Metz relies, Metz was not merely a foreign manufacturer which sold to various foreign exporters, knowing that the exporters would, in turn, sell to distributors throughout the world, including the United States.

Originally, Metz attempted to obtain a license under the Honeywell patents, and from the time that the license negotiations were terminated, Metz was acting with the knowledge that exportation of the accused devices to the United States would infringe Honeywell’s patent rights. Moreover,- by entering into the exclusive agreement for distribution in the United States, Metz purposely promoted American sales and ensured that such infringement would take place, causing injury to Honeywell, a corporation with its principal place of business in Illinois. Subsequently, sales did, in fact, take place in Illinois and these sales obviously generated revenue for Metz, although such revenue passed through EPOI.

To the extent that a corporate defendant avails itself of the privilege of conducting activities in a state, it enjoys the benefits and protection of the laws of that state, International Shoe, supra, 326 U.S. at 319, 66 S.Ct. 154, and we believe that Metz has done so by injecting its products into the Illinois marketplace. Metz urges that its' activity does not fit this mold simply because its products are sold to EPOI “f.o.b. German seaport or German border,” Appellee’s Brief at 11, but that position is not, of course, a realistic evaluation of the nature and quality of Metz’s business affairs, viewed in light of the arrangement with EPOI.

Direct contact with the forum state is not essential to the exercise of personal jurisdiction. Metz may not have physically entered the state of Illinois, but it placed its flash devices in the . stream of commerce under such circumI stances that it should reasonably have ■anticipated that injury through infringeIment would occur there. Jones Enterprises, Inc. v. Atlas Service Corporation, 442 F.2d 1136, 1138-1140 (9th Cir. 1971); Duple Motor Bodies, Ltd. v. Hollingsworth, 417 F.2d 231, 235 (9th Cir. 1969); Eyerly Aircraft Co. v. Killian, 414 F.2d 591, 596-597 (5th Cir. 1969); Keckler v. Brookwood Country Club, 248 F.Supp. 645, 648-649 (N.D.Ill.1965); Gray, supra, 22 Ill.2d at 441-443, 176 N.E.2d at 766. We look to the economic and commercial realities of this case, and in our view, it is not within the contemplation of the concepts of fairness and due process to allow a wrongdoing manufacturer to insulate himself from the long arm of the courts by using an intermediary or by professing ignorance of the ultimate destination of his products.

Lastly, we recognize, as the Supreme Court stated in International Shoe, supra, 326 U.S. at 317, 66 S.Ct. at 158, that “[a]n ‘estimate of the inconveniences’ which would result to” a defendant is relevant to the issue of “minimum contacts.” We have taken this into account and have determined that any inconvenience that may come to Metz in defending this lawsuit is outweighed by the considerations discussed above. Inconvenience alone is not a violation of due process.

We conclude that the activities engaged in by Metz were sufficient to establish minimum contacts with the state of Illinois, and that exercise of personal jurisdiction pursuant to the “tortious act” provision of the Illinois long-arm statute, Ill.Rev.Stat. Ch. 110, § 17(l)(b), would not violate the due process clause of the Fifth Amendment.

Reversed and remanded.

ENOCH, Senior Circuit Judge

(dissenting).

I found Judge Bauer’s opinion well reasoned and persuasive. It seems to me that conjectures concerning the motives of the defendant-appellee are irrelevant here. On the basis of the actions taken I would find that the statutory requirements for exercise of personal jurisdiction were not met. With regret, therefore, I must respectfully dissent.

      . The question of proper venue was presented to and disposed of by the District Court. Relying on 28 U.S.C. § 1391(d) which provides that “An alien may be sued in any district,” the District Court held that . Metz’s motion to dismiss for improper venue will be denied.” 353 F.Supp. at 493. The propriety of such holding is not challenged by appellee. Service of a summons and the amended complaint was made on Metz in accordance with Illinois law, Ill.Rev.Stat. Ch. 110, § 16, as permitted by Fed.R.Civ.P. 4(e). In its motion to dismiss the amended complaint, Metz did not assert any insufficiency in the manner of service of process, and no challenge to the manner of service is made on this appeal.

      . In certain opinions, a test of “minimum contacts” with the United States as an entity (rather than minimum contacts with the state in which the federal court sits) has been applied. Holt v. Klosters Rederi A/S, 355 F.Supp. 354, 356-357 (W.D.Mich.1973); Alco Standard Corporation v. Benalal, 345 F.Supp. 14, 24-25 (E.D.Pa.1972); Edward J. Moriarty & Co. v. General Tire & Rubber Co., 289 F.Supp. 381, 390 (S.D.Ohio 1967); First Flight Company v. National Carloading Corporation, 209 F.Supp. 730, 736-737 (E.D.Tenn.1962). We need not reach such a broad conclusion here.


author: MURRAH, Circuit Judge.

text:
    Spencer Lee RODDY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-1250.
    United States Court of Appeals, Tenth Circuit.
    Argued Nov. 11, 1974.
    Decided Feb. 3, 1975.

      Winston Roberts-Hohl, Asst. Federal Public Defender, Albuquerque, N. M., for petitioner-appellant.
    Ruth C. Streeter, Asst. U. S. Atty., Albuquerque, N. M. (Victor R. Ortega, U. S. Atty., on the brief), for respondentappellee.
    Before MURRAH, HILL and HOLLOWAY, Circuit Judges.
   MURRAH, Circuit Judge.

Appellant Roddy was convicted on pleas of guilty for participation in two bank robberies — the first in New Mexico, the latter in Arizona. He was first convicted and sentenced in Arizona for the latter offense and received an indeterminate sentence under § 5010(b) of the Youth Corrections Act of 1950, 18 U.S.C. § 5005 et seq. Since he was over twenty-two years old, the court was required to and did affirmatively find that Youth Act treatment would be beneficial under 18 U.S.C. § 4209. At the time of sentencing, the Arizona judge was aware that Roddy was a prime suspect for the New Mexico robbery and apparently had been formally charged. Roddy was subsequently convicted and sentenced for the earlier New Mexico robbery and, under 18 U.S.C. §§ 371, 2113, 4202, received an adult sentence of five years to run consecutively to the Arizona indeterminate sentence. At the time of sentencing, the New Mexico court’s pre-sentence report included the pre-sentence report submitted in Arizona as well as the Arizona sentence. The court denied a request for a sentence concurrent with the Arizona sentence, giving as its reason “the fact [that] . . . people’s lives . were seriously endangered” by the New Mexico robbery. Roddy appeals from the denial of a § 2255 petition in the District of New Mexico to modify the New Mexico adult sentence to conform to the Arizona youth sentence. The sole question under these admitted facts is whether, by force of the Youth Act and the respect one court owes the judgment of another, the New Mexico court was required to honor the Arizona indeterminate Youth Act sentence. We think not.

We know, of course, that a sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review.. Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). United States v. Mackay, 491 F.2d 616, 624 (10th Cir. 1973). It is also settled law that the sentencing court may cause sentences imposed on separate counts in the same or separate indictments to run concurrently or consecutively, if so specified in the sentencing judgment. The New Mexico sentence satisfies those requirements. But it is strenuously argued that the consecutive New Mexico sentence should not be allowed to stand, because it frustrates the rehabilitative purposes of the Youth Act and the Arizona sentence thereunder. The precise question is unique and of first impression.

In Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974), the Chief Justice comprehensively reviewed the history and purposes of the Youth Act. He finally concluded that “the Act was intended to preserve unfettered the sentencing discretion of federal district judges”; that, to accomplish rehabilitation of youth offenders, the Act gave federal judges “new alternatives to add to the array of sentencing options previously available to them”; and that the only limitation on such sentencing discretion was the requirement of finding “no benefit” under the Act before sentencing a person under the age of twenty-two years to an adult sentence. Id. at 433, 94 S.Ct. at 3048. The “no benefit” requirement does not control our case because Roddy was over twenty-two years of age, and an adult sentence was therefore mandatory in the absence of an explicit finding of “benefit” under § 4209. Thus, there is nothing in the text or the legislative history of the Act which can be construed to require a sentencing court to give a youth sentence or to honor and give effect to a previously imposed indeterminate youth sentence. The Youth Act does not make a sentence thereunder pre-emptive.

Nor can any such pre-emption be implied or compelled by comity between federal courts. Res judicata and estoppel are surely inapplicable because the two courts were dealing with entirely different subject matters.

Roddy cites and relies upon Price v. United States, 384 F.2d 650 (10th Cir. 1967), where this court upheld the youth sentence given on a multi-count indictment, even though the evidence was insufficient as to one count, because only one youth sentence can be imposed for all the offenses joined in one indictment. Judge Phillips, one of the sponsors of the Youth Act, speaking for the court, pointed out that continued custody after complete rehabilitation would “destroy much of the good that had been attained from guidance, training and treatment [under the Act],” and that “Cumulative or consecutive sentences on each of several counts would not fit into the design and purpose of the Act.” Id. at 652. Although in our case, the youth sentence and the consecutive adult sentence were given for separate convictions before separate courts, their conjunction has the same deleterious effect on the rehabilitative design of the Act.

Even so, in Nast v. United States, 415 F.2d 338 (10th Cir. 1969), we upheld a consecutive adult sentence imposed for an escape made after imposition of a youth sentence for robbery. We concluded that “neither [sentence] is in statutory or constitutional conflict with the other” and that a youth sentence given for one offense “may not properly be construed to bar a sentence under a different Act for another and subsequent offense.” Id. at 340. The same reasoning applies here, whether the adult sentence was given for an offense committed before or after the offense for which the prior youth sentence was given.

As observed in Nast, “the problem raised by appellant is for such legislative consideration as it might enlist, rather than one to be solved as appellant presses upon this court.” Id. at 340. And see also ABA Project on Minimum Standards for Criminal Justice, Sentencing Alternatives and Procedures § 3.5 (Approved Draft 1968).

The judgment is affirmed.

      . The Youth Act applies to a “youth offender,” defined as one “under the age of twenty-two years at the time of conviction.” 18 U.S.C. § 5006(e). For a convicted defendant over twenty-two but not yet twenty-six years of age, the court can sentence under the Youth Act if it believes the defendant will “benefit from the treatment provided under [the Act].” 18 U.S.C. § 4209.