author: BENSON, District Judge.

text:
    JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, Plaintiff, v. Sheryl Denise JACKSON, Appellant, Gwendolyn Wilkinson, Appellee, Anna L. Ray, Administratrix of the Estate of Glasco P. Ray, Deceased et al., Defendants.
    No. 72-1460.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 14, 1973.
    Decided April 20, 1973.
    Rehearing Denied May 16, 1973.

      William F. Maurer, Kansas City, Mo., for appellant.
    Bruce Ricker, Kansas City, Mo., for appellee.
    Before GIBSON and ROSS, Circuit Judges, and BENSON, District Judge.

       Judge Benson, Chief Judge of the District Court of North Dakota, sitting by designation.

   BENSON, District Judge.

This case comes to us on appeal from a judgment and decree entered June 26, 1972, in the above action brought under Title 28, Section 1335, United States Code, wherein the District Court awarded life insurance proceeds, previously tendered by the insuror, John Hancock Mutual Life Insurance Company, into the court’s registry, to the guardian of Appellee Gwendolyn Wilkinson.

One Glaseo P. Ray, (Ray), an employee of the Ford Motor Company, by virtue of his employment, became an insured under the Ford Motor Group Life and Accident Death Insurance Policy No. 17-GCC, issued by the John Hancock Mutual Life Insurance Company, and maintained for the benefit of Ford Motor Company employees. The evidence of coverage was contained in a 29 page certificate-booklet furnished him, which described the Ford Motor Company Employee’s Life and Disability Insurance Program. Ray had the right to name the beneficiary and to change the beneficiary at any time. This was accomplished by filing an application form with the insurance company.

On October 28, 1968, Ray completed the application form and named his half sister, Gwendolyn Wilkinson, as beneficiary. On April 25, 1969, Ray attempted to change the beneficiary by completing a.new application form, naming one “Shirley Ray (Wife)”, as beneficiary. Ray died on July 21, 1969, and the proceeds of his coverage under the group policy became payable.

Both application forms contained the following printed provision:

“I revoke all previous beneficiary nominations, together with any settlement elections and make the above nomination of beneficiary with respect to all insurance provided now or at any time in the future under the above Group Insurance Policies still reserving to myself the privilege of making other and further changes subject to the Policy provisions. If more than one beneficiary is designated, settlement will be made in equal shares to such of the designated beneficiaries (or beneficiary) as survives me, unless otherwise provided herein. If no designated beneficiary survives me, settlement will be made as provided in the policies.”

The certificate-booklet. contained, on page 9, information on beneficiary designation as follows:

“You have the right to name the beneficiary of your choice, and to change your beneficiary at any time. The beneficiary is that designation you have last made as indicated on the records of the Insurance Company. In the event the last named beneficiary dies before you, or if no beneficiary shall have been named, the life insurance will be paid to your wife or husband, if living; if not living, equally to your surviving children; if none survive, to either your mother or father, or to both equally if both survive; if there are no such survivors, to the executor or administrator of your estate.”

Glaseo P. Ray had never married. Although at least two persons by the name of Shirley were shown to have been friendly with Ray, the District Court found the evidence was not sufficient to establish who was the subject of Ray’s second application. The court found the second designation to be void, and applied the doctrine of dependent relative revocation, holding the prior designation of Gwendolyn Wilkinson, as beneficiary, had not been revoked.

The appellant, Sheryl Denise Jackson, was found by the court to be the natural daughter of Glaseo P. Ray. She claims a right to the policy proceeds under the provisions of the contingent beneficiary clause contained in the certificate-booklet hereinbefore set out. It is appellant’s position that the District Court erred in applying the doctrine of dependent relative revocation. Appellant submits that the record does not show Ray’s intent in changing the designation, and similarly there is no showing of any dependent connection between the revocation of the first beneficiary and the designation of the second.

Under the doctrine of dependent relative revocation, if a testator cancels a will with the present intention of making a new one as a substitute, and the new will is not made, or if made, fails for any reason, it will be presumed that the testator preferred the old will. 57 Am.Jur. Wills § 514. The rule is based on the assumption that the testator revoked the prior will with the express intent of creating a new one. Anno. 62 A.L.R. 1367, 1401, 115 A.L.R. 710, 721. The Missouri Court of Appeals, St. Louis, in Sims v. Missouri State Life Ins. Co., 223 Mo.App. 1150, 23 S.W.2d 1075, 1077 (1930), early announced that where the beneficiary designation in an insurance policy is questioned, the language of the policy is to be treated as testamentary in character, and should be given the same interpretation as if the instrument were a will.

In 1955, the Missouri Supreme Court recognized the doctrine of dependent relative revocation and put forth as a basis for the doctrine, the presumption that had the testator known his second beneficiary designation would become invalid, he would have wished his property disposed of as expressed by his original will. Board of Trustees of Methodist Church v. Welpton, 284 S.W. 2d 580, 584 (Mo.1955). The basic rule of construction to be found throughout the cases and annotations, with regards to giving operative effect to the doctrine is that the testator’s intentions must be ascertained and upheld.

The purpose of the doctrine is to give effect to the testator’s true intent. The determination of whether to apply the doctrine turns upon whether the testator’s intention was to revoke the first designation to make effective a new designation or to revoke the first regardless of the effectiveness of the subsequent designation. The doctrine, then, should not be blindly applied in all instances where an invalid beneficiary designation exists.

If, by its application, the doctrine would operate to defeat the real intent of the testator, it should not be applied. Mort v. Trustees of Baker University, 229 Mo.App. 632, 78 S.W.2d 498, 501 (1935). This case set out as one indicia of intent the instruments themselves. “. . . The testator’s intention must be ascertained, if possible, from the four corners of the instrument .” An examination of the certificate-booklet and the two beneficiary forms discloses only an intention to change the beneficiary designation. No clear presumption of intent can be ascribed to either the revocation clause or the contingent beneficiary clause. Both of these clauses were standard form phrases that lack the probative value on the question of intent attributed to similar clauses as found in a formal will. There is every probability that a potential insured would not even be aware of the contingent beneficiary provision found on page 9 of the certificate-booklet. The beneficiary designation form and the contingent beneficiary clause seem to be independent of each other. As a consequence, any inferences to be made as to Glaseo P. Ray’s testamentary intent must arise from evidence other than the instruments themselves. Under Missouri law, if the instrument itself is ambiguous, or if the description is imperfect, the court may resort to extrinsic evidence for the purpose of ascertaining the intended meaning. Here, the designation of “Shirley Ray (Wife)” renders both instruments, when read-together, imperfect and ambiguous.

“The cases hold that, in the construction of a will, where the purpose is to determine a beneficiary thereunder, it is the primary duty of the court to give effect to the intention of the testator as expressed in his will, if the same is not contrary to law or against public policy, and not to put such a construction thereon as will tend to substitute the court’s own ideas or motions for those of the testator; and that, where any doubt or uncertainty arises as to the testator’s intention, extraneous facts will be admissible to explain the language used, regardless of whether the ambiguity be a patent or a latent one, since the court is entitled to be placed in possession of all available information of the circumstances surrounding the testator when he made the will . . .
Of course it must be understood that such extrinsic evidence is admissible, not for the purpose of contradicting or varying the terms of the will, but solely for the purpose of ascertaining the testator’s true intention from the language used . . . (Citations and footnotes omitted). (Emphasis added). Sims v. Missouri State Life Ins. Co., 223 Mo.App. 1150, 23 S.W.2d 1075, 1078 (1930).

In this posture, then, the District Court gave consideration to the surrounding circumstances and conditions existing at the time Glaseo P. Ray executed the second beneficiary form. There was extrinsic evidence before the court that Ray was a heavy drinker; that he was not married at the time of his death, nor had he ever been married; the specific identity of the person designated “Shirley Ray (Wife)” could not be determined; Ray had always been close to his half sister, Gwendolyn Wilkinson, the appellee herein; he had not been affectionate nor had he been close to his daughter, Sheryl Denise Jackson, the appellant; the designation of “Shirley Ray (Wife)” was a manifestation of some sort of mental incapacity.

The evidence is sufficient to support the District Court’s conclusion that had Ray known the intended disposition would be inoperative, he would have preferred the prior designation be given effect. The revocation of the first beneficiary designation was conditional upon the validity of the second.

The judgment of the District Court is affirmed.

      . See generally Anno. 24 A.L.R. 750.

      . See Anno. 24 A.L.R. 750, 62 A.L.R. 1367, 115 A.L.R. 710, 28 A.L.R.2d 521, 95 A.L.R.2d 1256.


source: Caselaw Access Project

author: VAN OOSTERHOUT, Senior Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Tyrone WILKINS, Appellant.
    No. 72-1656.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 16, 1973.
    Decided April 20, 1973.

      John S. Steiner, St. Louis, Mo., for appellant.
    J. Patrick Glynn, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and VAN SICKLE, District Judge.

       Sitting by designation.

   VAN OOSTERHOUT, Senior Circuit Judge.

Defendant Wilkins has taken a timely appeal from his conviction by a jury on a charge of bank robbery in violation of 18 U.S.C. § 2113(a) and the resulting sentence of fifteen years imposed, with authorization for early parole pursuant to 18 U.S.C. § 4208(a)(2).

Defendant urges he is entitled to a reversal by reason of alleged errors committed by the trial court in the following respects:

1. Denial of motion to suppress confession made by defendant to F.B.I. Agent Lummus.

2. Admission over objection to exhibits 7 and 8, photographs of defendant in the bank at the time of the robbery.

3. Denial of defendant’s motion for judgment n. o. v. and alternate motion for a new trial.

We have carefully examined the record and find defendant’s asserted errors lack merit. We affirm the conviction.

We will briefly summarize the underlying facts. Three eyewitnesses positively identified the defendant as the person who on April 19, 1972, entered the Mercantile Trust Company in St. Louis, Missouri, and placed a note before the teller Jean Hejlek reading “give me all the money”, and thereby obtained $4100.00 including $500.00 in bait money. A bank official followed defendant out of the bank, observed him get into a car, and provided the police with the license number and a description of defendant’s car. Such information was passed out by police radio. Officers on patrol shortly after receiving the radio message spotted and stopped defendant’s car which met the description and arrested the defendant, and as an incident thereto seized $4100.00 in currency and the “give me all the money” note, all of which were in plain sight. The money recovered included the $500.00 currency which fully conformed to the description thereof on the bank’s bait money list.

The Government made a strong case with respect to all essential elements of the offense. Defendant’s defense and his testimony as a witness is that he was a drug user and was the victim of a drug-induced flashback or blackout, and that he had no recollection of any events occurring on the date of the bank robbery, and hence requisite criminal intent was not established.

The court held a proper pretrial evidentiary hearing on defendant’s motion to suppress his confession. The testimony of the officers is that the Miranda warnings were given and understood by the defendant, that the defendant stated that he did not want an attorney, and that he would answer such questions as he chose to. There is no proof that any coercion was used. Defendant, after answering some questions, stated in substance that it was rather ridiculous to be questioning him about the bank robbery when it was obvious that he had robbed the bank and they had the money, the ear and him.

Defendant’s position and testimony on the suppression issue is that by reason of the drug flashback he had no recollection of any of the events of April 19. Several officers who observed the defendant testified that at the time of the arrest and at the time of the interview which resulted in the confession the defendant appeared to be normal and competent, and that he appeared to understand what was going on, and they observed no symptoms of the defendant being under the influence of drugs. The court on the record made was justified in determining the confession was voluntary and hence admissible.

Exhibits 7 and 8 are pictures of the bank interior showing defendant’s presence in the bank leaving the cashier’s cage, carrying a paper sack. Mrs. Hejlek testified that she activated the alarm on the floor of her cage which put into operation two bank cameras. She testified that the pictures offered disclosed what would be seen by the cameras at the time of the robbery and that the pictures accurately portrayed the bank interior and the defendant at the time of the robbery. The accuracy of the pictures portrayed is also vouched for by the bank manager who pointed to a calendar in the pictures showing an April 19 date.

Defendant objected to the introduction of the pictures on the ground that no proof was offered that the pictures were taken by the bank cameras and that no one testified that the film was removed from the cameras and that the pictures were produced from such film, and that the photographs should be excluded for lack of proper foundation for their admission. While evidence of the nature set forth in the objection, if available, might be properly offered and eliminate controversy, it is not essential that such evidence be produced when there is reliable evidence that the photographs offered represent what a camera did see at the time of the robbery. Mikus v. United States, 433 F.2d 719 (2d Cir. 1970); United States v. Hobbs, 403 F.2d 977, 978-979 (6th Cir. 1968); see 29 Am.Jur.2d, Evidence § 788.

The accuracy of the tendered exhibits with respect to all relevant matters was vouched for by at least two witnesses in a position to judge “whether the proffered photography is an accurate representation of the scene depicted.” Mikus v. United States, supra, 433 F.2d at 725. The trial court on the record made did not abuse its discretion in receiving the photographs in evidence.

The trial court committed no error in denying defendant’s motion for judgment n. o. v. based on defendant’s motion for acquittal, on the ground that there is insufficient evidence to support a conviction. Defendant’s principal contention is that the Government did not meet the burden imposed upon it to establish that the defendant had a specific intent to violate § 2113(a) and that he could not have had such intent because of a drug induced blackout. The Goverment, relying on United States v. Porter, 431 F.2d 7 (9th Cir. 1970), contends that specific intent is not an essential element of the crime here charged under the first paragraph of § 2113(a). We need not resolve the issue of whether specific intent to rob the bank is an essential element as the trial court gave an instruction requiring a finding of specific intent. No exception was taken to such instruction.

The evidence must of course be viewed in the light most favorable to the prevailing party, here the Government. The lay testimony, particularly in situations where the psychiatric testimony as to incompetency is weak, ordinarily is sufficient to support a finding of specific intent to commit the crime charged. United States v. Leeper, 413 F.2d 123 (8th Cir. 1969).

Our examination of the record convinces us that there is substantial evidence to support the finding of specific intent as well as other essential elements of the offense charged.

With respect to defendant’s motion for a new trial, we are convinced that defendant has not met the burden resting upon him to show that the trial court abused its discretion in denying his motion.

Judgment affirmed.

      . The instruction reads: “Although a stupor due to the use of a some drug is not alone a defense, the fact that a person may have been in a state of drug induced stupor at the time of the commission of a crime may negative the existence of a specific intent. So evidence that a defendant acted or failed to act while in a stupor due to the use of some drug is to be considered in determining whether or not the defendant acted or failed to act with specific intent as charged. If the evidence in the case leaves the jury with a reasonable doubt, whether because of the degree of his drug induced stupor the mind of the accused was capable of forming or did form specific intent to commit the crime charged, the jury should acquit the accused.”


author: PHILLIPS, Chief Judge.

text:
    BEER NUTS, INC., Plaintiff-Appellee, v. KING NUT COMPANY, Defendant-Appellant.
    No. 72-1807.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 29, 1973.
    Decided May 2, 1973.

      Bruce B. Krost, Cleveland, Ohio, for defendant-appellant; Charles R. Rust, Woodling, Krost, Granger & Rust, Cleveland, Ohio, on brief.
    James R. McKnight, Chicago, Ill., for plaintiff-appellee; Teare, Teare & Sammon, Cleveland, Ohio, of counsel.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and McCREE, Circuit Judges.
   PHILLIPS, Chief Judge.

This is an appeal by King Nut Company from the granting of summary judgment in a trademark infringement action brought under § 32 of the Lanham Act, 15 U.S.C. § 1114. The District Court held that King had infringed the trademark “BEER NUTS” owned by appellee, Beer Nuts, Inc., a permanent injunction and an accounting were ordered. We affirm.

Appellee’s predecessor, Brewster Food Service, registered the trademark in 1955 for its brand of shelled, cooked and salted peanuts, which are sold in the tavern market. Beer Nuts, Inc. has used the mark continuously since its registration.

Over the years, King has employed several names to market its brand of similar peanuts. In 1958 the name “KING’S BREW NUTS” was used. Upon discovery of this Brewster contacted King, contending that such a name was an infringement on its trademark. The parties were able to settle this difficulty by entering an agreement on September 15, 1958. That agreement released King from all liability in exchange for King’s promise to refrain from using the name “BREW NUTS” and King’s recognition of Brewster’s ownership and the validity of the trademark “BEER NUTS”. The agreement was concluded by a stipulation that the contract would be perpetual and binding on the parties and their assigns.

In 1968 King began to market its peanuts under the name “KING’S BEER NUTS.” Each package also included a picture of an overflowing stein of beer. Beer Nuts, Inc. objected and King agreed to discontinue its use. Then King began marketing its product under the title “KING’S SNACK NUTS”, continuing the use of the picture. Thereupon Beer Nuts, Inc. brought this suit contending that the words “BEER NUTS” and the continued use of a picture of an overflowing stein of beer on the front of King’s packages constituted infringements. The principal defense asserted was that “BEER NUTS” had evolved into a descriptive term causing the trademark to lose its validity.

On April 11, 1972, District Judge Don J. Young held that King was estopped by virtue of the 1958 agreement from contesting the mark’s validity. The effect of this holding was to deny King the opportunity to present its defense that “BEER NUTS” was a descriptive term not available for appropriation as a trademark. The court further held that the use of the picture and the name “KING’S BEER NUTS” constituted infringements. Judge Young concluded:

“Thus, the only remaining issue before the Court is whether plaintiff is the assignee of Brewster Food Service to the trademark “BEER NUTS.” If plaintiff is, summary judgment will be entered on its behalf . . . .”

On June 12, 1972, Judge Young ruled that the plaintiff had demonstrated that it was the assignee of Brewster Food Service and entered summary judgment.

King first contends that the 1958 agreement does not preclude the assertion of the defense that the trademark was merely descriptive. We find this argument to be without merit. An assertion that a name is merely descriptive is an attack upon the validity of the trademark. A descriptive mark in appropriate situations will not be recognized as a valid trademark. 8 Callmann, The Law of Unfair Competition Trademarks and Monopolies (3d ed.) §§ 74, 74.2.

King next argues that even if the agreement precludes an attack upon the mark’s validity, that agreement should not be.enforced. We recognize that to give effect to such agreements would impede the efficacy of the defense that the words are merely descriptive. It long has been recognized that a mark which is valid and enforceable at one point in time may subsequently evolve into an invalid mark. DuPont Cellophane Co., Inc. v. Waxed Products Co., Inc., 85 F.2d 75 (2d Cir.), cert. denied, 299 U.S. 601, 57 S.Ct. 194, 81 L.Ed. 443 (1936); American Thermos Products Co. v. Aladdin Industries, Inc., 207 F.Supp. 9 (D.Conn.1962), aff’d, 321 F.2d 577 (2d Cir. 1963); Bayer Co., Inc. v. United Drug Co., 272 F. 505 (S.D.N.Y. 1921). In the present case, however, we must weigh the public benefit in considering trademark principles in connection with the policy of upholding the law of contracts.

In Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969), the Supreme Court was faced with the task of balancing conflicting contract and patent law policies. The Court held that a patent licensee was not estopped by virtue of having negotiated a license agreement from asserting that the patent was invalid. On its face Lear might appear to be applicable to trademarks, but we believe a closer analysis mandates a contrary result.

Generally, courts uphold the contract principle that a contracting party may not repudiate his promises solely because he later becomes dissatisfied with his bargain. In Lear this policy was found to conflict with the patent policy that ideas in general circulation should be available for the public good unless protected by a valid patent. 395 U.S. at 688, 89 S.Ct. 1902.

Our patent system awards an inventor exclusive use of his discovery for a limited period of time in return for his granting to the public full disclosure and, at the expiration of his monopoly, the free use of his discovery. This results not only in stimulating inventiveness but also benefits the consuming public when the discovery becomes available at competitive prices. See, Scott Paper Co. v. Marcalus Mfg. Co., Inc., 326 U.S. 249, 66 S.Ct. 101, 90 L.Ed. 47 (1945). Where a monopolist is permitted to operate under color of a patent, which is in fact invalid, “. . . the public may continually be required to pay tribute to would-be monopolists without need or justification.” Lear, 395 U.S. at 670, 89 S.Ct. at 1911. This overriding consideration of the public interest led the Lear Court to conclude that patent law must control.

The principles underlying the law of trademarks are distinguishable. Trademark protection guards the public from being deceived into purchasing an infringing unwanted product. It further protects the owner’s investment in advertising and quality control which is often considerable. Stahly, Inc. v. M. H. Jacobs Co., 183 F.2d 914 (7th Cir.), cert. denied, 340 U.S. 896, 71 S.Ct. 239, 95 L. Ed. 650 (1950). The premise for the defense of descriptiveness was set forth by Judge Hastie in Telechron v. Telicon Corp., 198 F.2d 903, 906 (3rd Cir. 1952):

“The basic reason for refusing, to allow the exclusive appropriation of descriptive words in trademarks is the danger of depleting the general vocabulary available to all for description and denomination of articles of commerce. It is unwise to risk the development of a situation in which those attempting to market their goods will find that they can not use apt normal words or phrases in depicting or characterizing articles because of language preemptions by others. So the legal protection of trademarks is restricted in manner calculated to keep such descriptive words free for all.” Accord, Proxite Products, Inc. v. Bonnie Brite Products Corp., 206 F.Supp. 511, 515 (S.D.N.Y.1962).

The defense of descriptiveness also has been upheld on the basis of the public’s right to have a product properly described. Caron Corp. v. Maison Jeurelle-Seventeen, Inc., 26 F.Supp. 560, 562-563 (S.D.N.Y.1938).

When the balancing test is employed in the instant situation, we conclude that the public interest in guarding against the depletion of the general vocabulary available for the description of articles in commerce is not so great that it should take precedence over the rule of the law of contracts that a person should be held to his undertakings. Such a decision is far from unique. In E. F. Prichard Co. v. Consumers Brewing Co., 136 F.2d 512, 522 (6th Cir. 1943), cert. denied, 321 U.S. 763, 64 S.Ct. 486, 88 L.Ed. 1060 (1944), this court held that a contract declaring one party to be the owner of a trademark would estop the other party from later contesting the mark’s title. In Peyrat v. L. N. Renault & Sons, Inc., 247 F.Supp. 1009 (S.D.N.Y.1965), it was held that a contract between a trademark registrant and another, which permitted the other party to use the mark, would bind the registrant.

King also contends that the District Court erred in determining that the use of the picture of a stein of beer on the front of the King packages constitutes an infringement. The essence of the wrong of trademark infringement is the passing off of the goods of one as those of another. Hemmeter Cigar Co. v. Congress Cigar Co., 118 F.2d 64 (6th Cir. 1941). Under the statute liability is imposed upon those who use a mark likely to cause confusion with a registered mark. 15 U.S.C. § 1114. The test is whether the infringing mark taken as a whole so far resembles the trademark as to be likely to cause a casual or unwary purchaser to mistake it for the original. 118 F.2d at 70. The degree of similarity may be less where inexpensive' goods are involved. This is premised upon the notion that purchasers will pay less attention to the goods they are buying where the goods are relatively cheap. Calimofde, Trademarks and Unfair Competition § 10.24.

It is well settled that words and their pictorial representation are treated the same in determining the likelihood of confusion between two marks. Shunk Mfg. Co. v. Tarrant Mfg. Co., 318 F.2d 328, 50 CCPA 1325 (1963); Pink Lady Corp. v. L. N. Renault & Sons, Inc., 265 F.2d 951, 46 CCPA 865 (1959). As the picture in the present case is to be given the same effect as the word “beer”, we conclude that the District Court’s determination was correct.

King further argues that the District Court erred in failing to compel more complete answers to its .second, third and fourth sets of interrogatories, its requests for admissions, and in failing to permit an amendment to its pleading. The motion to compel answers to the second and third sets of interrogatories was denied for failure to comply with a local rule of court. That rule provided that before a party can seek the court’s aid in discovery, that party must first notify the court of its attempts to resolve the controversy. Since we do not find this rule inconsistent with the federal rules, we hold the District Court’s action was proper. Rule 83, Fed.R.Civ.P.; Joseph v. Norton Co., 273 F.2d 65 (2d Cir. 1959).

The fourth set of interrogatories, the request for admissions and the motion for leave to file an amended complaint, were all filed subsequent to the District Court’s April 11, 1972, opinion. The April 11 opinion found King to be an infringer and held Beer Nuts, Inc. entitled to relief subject to its demonstrating that it is the assignee of the Brewster Food Service trademark. On June 12, 1972, a second opinion was issued wherein the court found that the corporation was the legitimate assignee of the partnership and entered its order of summary judgment. We believe that the April 11 opinion had the effect of partial summary judgment. All material issues were resolved except the assignment issue. As these contentions do not relate to the assignment, we must treat these motions as being made after the entry of summary judgment, and as such it was not improper to deny them. Butler v. Pettigrew, 409 F.2d 1205 (7th Cir. 1969); Weiss v. United States, 199 F.2d 454 (2d Cir. 1952), cert. denied, 344 U.S. 934, 73 S.Ct. 504, 97 L.Ed. 718, reh. denied, 345 U.S. 914, 73 S.Ct. 643, 97 L.Ed. 1348 (1953).

Finally it is argued that summary judgment is improper because genuine issues of material fact remained. Fed.R.Civ.P. 56. King contends that “BEER NUTS” is descriptive when applied to the products involved in this case. Therefore, it asserts a genuine issue of material fact remains. Since King is precluded from contesting the validity of the trademark, the question of descriptiveness becomes irrelevant.

All other contentions made by appellant have been considred and are found to be without merit.

Affirmed.

      . Registration No. 605,905.

      . Members of the Brewster partnership incorporated Beer Nuts, Inc. in 1960 and assigned their trademark to the corporation.

      . Rule 2(a) (6) of the local rules for the United States District Court for the Northern District of Ohio provides:
      “Counsel are encouraged to participate in pre-trial discovery conferences to reduce, in every way possible, the filing of unnecessary discovery procedures. To curtail undue delay in the administration of justice, no discovery procedure filed under Rules 26 through 37 of the Federal Rules of Civil Procedure to which objection or opposition is made by the responding party shall be taken under consideration by the Court, unless the party seeking discovery shall first advise the Court in writing that after personal consultation and sincere attempts to resolve differences they are unable to reach an accord. This statement shall recite those matters which remain in dispute, and in addition, the date, time and place of such conference, and the names of all parties participating therein. It shall be the responsibility of counsel for the party seeking discovery to initiate such personal consultation.”

      . The proposed amendment attempted to raise a completely new issue involving the equitable concept of “clean hands”; it should therefore be distinguished from a situation where the party attempts to conform the pleadings to the evidence.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael MARION and Sanford Hoskow, Defendants-Appellants.
    Nos. 72-1751, 72-1752.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 29, 1973.
    Decided April 25, 1973.

      Peter H. Shumar, Detroit, Mich., for appellants; Neil H. Fink, Detroit, Mich., for appellant Marion and Carl Ziemba, Detroit, Mich., for appellant Hoskow, on brief.
    Harold Hood, Chief Asst. U. S. Atty., for appellee; Ralph B. Guy, Jr., U. S. Atty., on brief.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and McCREE, Circuit Judges.
   PHILLIPS, Chief Judge.

Michael Marion and Sanford Hoskow, appellants herein, were indicted on October 7, 1970, along with seven others. The indictment charged a conspiracy to utter and publish as true and genuine, false and forged United States Savings. Bonds knowing the same to be false and forged, with intent to defraud the United States, in violation of 18 U.S.C. § 495 and 18 U.S.C. § 371. The jury returned a verdict of guilty as charged, and each appellant was sentenced to three years in the custody of the Attorney General. We reverse.

Appellants have assigned several errors. Since we conclude that the District Court erred in failing to include a cautionary instruction in connection with certain comments to the jury regarding the testimony of Eddie Bell, a defendant, who testified as a Government witness, we need not reach the additional contentions.

The Government’s case against the appellants rests principally upon the testimony of the accomplice witness, Bell, who originally was indicted along with the appellants. The first evidence presented by the Government tended to be highly incriminatory toward Bell. He therefore entered a plea of guilty before the prosecution rested. This plea was accepted by the District Court. Subsequently, the Government called Bell as a witness.

At the time Bell’s plea of guilty was entered, the District Court notified all counsel that the determination whether to bring out the fact of the plea would be left to the attorneys. The first defense counsel to cross examine Bell brought out the fact of the plea. He directed several inquiries as to Bell’s motive to change his plea. The witness replied that he did it for revenge, that his plea was free and voluntary and that he had been promised nothing. Later the attorney for the appellant Hoskow again questioned Bell regarding his plea and received similar answers. This attorney further inquired as to whether the witness considered himself guilty of a crime and received an affirmative response. At that time the District Judge stated to the jury that the plea would not have been accepted had the court not been satisfied that there was some factual basis for it.

Later in Bell’s cross examination by the trial counsel for Hoskow, more questions regarding a “deal” with the United States Attorney were asked. This line of questioning continued until curtailed by the court. The District Judge then made a comment to the jury concerning the circumstances and effect of Bell’s plea. These statements are included as an appendix. Important here is the Judge’s statement that he believed the responses to be true that there were no arrangements of any kind and that he would not have accepted the plea had he not believed Bell. Of pivotal significance is the omission to include the cautionary instruction that, regardless of the judge’s opinion, final determination of credibility of the witness is a responsibility reserved to the jury.

We conclude that these comments by the District Judge to the jury effectively deprived the appellants of their right to have the credibility of this witness determined by the jury. Generally a trial judge is permitted to comment upon the evidence, including the credibility of witnesses, so long as it is clear that final determination is left to the jury. Hance v. United States, 299 F.2d 389 (8th Cir. 1962). A trial court must be careful to avoid giving the jury the impression that it is bound by the expressed views of the tyial judge on the issue of credibility. Stevens v. United States, 306 F.2d 834 (5th Cir. 1962). In Stevens reversible error was found in the trial judge’s statement that he would not believe a particular witness even under oath.

A jury composed of laymen will be greatly influenced by a judge’s opinion of credibility. The problem is compounded where, as here, the opinion is not immediately coupled with a caveat that the ultimate decision is for the jury.

In view of our decision, appellants’ motion for bail pending appeal is now moot. The issue of bail pending retrial will be resolved by the District Court.

Reversed and remanded.

APPENDIX

THE COURT: All right. I have been silent long enough on this, and you continue, Mr. Disner, [Trial counsel for the appellant Hoskow] to go back to a matter, and I am going to instruct the jury at this time because of your repeated references to this, going over and over it, what the circumstance was.

Ladies and gentlemen, you are trying four cases here, and I want to say at the outset that the fact that Mr. Bell, who is a witness in this case now on behalf of the Government, has pleaded guilty, should not be taken by you in any way that fact that he pleaded guilty, that any of the other defendants are guilty. That can only be made on the basis of the testimony that you have heard from this witness stand, and at the conclusion of the case under the instructions on the law as I give it to you.

Having said that, though, I want to go on and say this, and then, Mr. Disner, that will end it.

MR. DISNER: I have ended it.

THE COURT: Well, you have opened the door, and I think, in fairness to the defendants, the other defendants other than your client, as well as your clients, and to the jury, this statement should be made:

No judge, ladies and gentlemen, accepts a plea from a defendant in a case, whether on trial, during the course of trial or before trial, unless the judge is convinced, first, that the plea is voluntarily made. That is to say, that no pressure of any kind, no threats of any kind, no deals of any kind are made in order to get the defendant to make a plea of guilty.

A judge must do that in order to protect the person who is making the plea. The judge, moreover, has to satisfy himself that when a witness makes a plea of guilty it is completely voluntary, that he knows what the probable consequences of his plea will be. And, further, when he makes that plea, that there is a factual basis for it.

In other words, a person who hasn’t committed a crime cannot come forward and say, “Judge, I want to confess that I committed a crime.” That wouldn’t be good. There has to be in fact a basis for the judge’s belief and that there was a crime committed. In this particular case, since Mr. Bell, during the course of this trial, and as I say, that the record will now show that Mr. Parzen, his attorney during the course of this trial is in the courtroom, for what reason I know not, but that’s neither here nor there. He is entitled as an officer of this court to be here.

Mr. Parzen and Mr. Bell requested an opportunity to see me in chambers. I not only saw those two, but that was in the presence of Mr. Page, the. Government’s attorney. And both then and on this record, I asked Mr. Bell whether or not there was any plan, arrangement or any kind of a deal whatever to get him to testify as a Government witness. And he answered me, no.

Now, if I had in any way believed that there was such an arrangement, I would not have taken the plea of guilty. Even if I took the plea of guilty, I instructed him that he was under no requirement whatever to appear here as a witness. That just because I had accepted his plea of guilty didn’t require that he now get on the witness stand and testify.

And I wanted to say to you, because I don’t want the record to appear any different than that, that Mr. Bell is appearing here completely voluntarily, because he wants to do it, after having been fully advised that he had no requirement to do so, under the circumstances.

Now, that is the fact and that’s the end of the examination on that point.

      . Allowing the jury to believe that the credibility of a prosecution witness already has been resolved is particularly dangerous where the witness is an alleged accomplice. See, Crawford v. United States, 212 U.S. 183, 204, 29 S.Ct. 260, 53 L.Ed. 465 (1909); Hoffa v. United States, 349 F.2d 20, 53 (6th Cir. 1965), aff’d, 385 U.S. 293, 87 S.Ct. 408, 17 L. Ed.2d 374 (1966), reh. denied, 386 U.S. 940, 87 S.Ct. 970, 17 L.Ed.2d 880 (1967); Williamson v. United States, 332 F.2d 123 (5th Cir. 1964).


author: GODBOLD, Circuit Judge:

text:
    In the Matter of the Extradition of CHAN KAM-SHU, a fugitive from the Justice of the Republic of Liberia. UNITED STATES of America, Appellant, v. Chan KAM-SHU, Appellee.
    No. 72-2476.
    United States Court of Appeals, Fifth Circuit.
    April 6, 1973.

      John L. Briggs, U. S. Atty., Jacksonville, Fla., Alan C. Todd, Asst. U. S. Atty., Orlando, Fla., Murray R. Stein, John L. Murphy, Chief, Administrative Regulations Sec., Crim. Div., Dept. of Justice, Washington, D.C., for appellant.
    Emmett A. Moran, Orlando, Fla., court appointed, for appellee.
    Before JONES, GODBOLD and INGRAHAM, Circuit Judges.
   GODBOLD, Circuit Judge:

This appeal presents two issues in defining the scope and construing the terms of the extradition treaty between the United States and Liberia. First, whether petitioner, a member of the crew of a Liberian flag vessel, who was brought into the United States after allegedly murdering another crew member while the ship was in international waters, is a fugitive from justice within the scope of the Treaty. Second, whether Liberian authorities timely presented a formal requisition for surrender of the petitioner after he was provisionally arrested. The District Court concluded that Liberia had not timely presented the formal request and granted a writ of habeas corpus. We reverse.

On January 30, 1972, Chan Kam-Shu, a crew member aboard the vessel Silver Shelton, allegedly fatally stabbed another crew member. The Silver Shelton was then approximately 22 miles off the Atlantic Coast of Florida. The vessel immediately requested assistance from the United States Coast Guard, which instructed the ship to proceed to the mouth of the harbor at Port Canaveral, Florida, approximately two miles offshore. A Coast Guard cutter rendezvoused with the vessel at that location and carried the injured crewman to a hospital.

An FBI agent investigating the incident found the crewman dead at the hospital. At the invitation of the Silver Shelton’s captain, the agent went aboard the vessel. He elicited statements from crew members and brought Chan ashore to the local jail. The agent testified that he took Chan into custody because the captain requested assistance in investigating the incident and in detaining the suspect, so the agent arrested Chan for the crime, and because both Chan and the captain requested that Chan be taken ashore, fearing that Chan would not be safe aboard ship after killing the other crewman, who was a popular man aboard ship. The Silver Shelton sailed after guaranteeing the cost of Chan’s air transportation to Hong Kong. The FBI concluded its investigation and transferred custody of Chan to the Immigration and Naturalization Service (INS) which paroled him into the country. He remained in jail from the day he was brought ashore, January 30.

The United States notified Liberian authorities of the incident and furnished them the FBI investigation reports. Liberia charged Chan with murder and, by diplomatic note to the United States Department of State on March 27, requested Chan’s extradition to Liberia to stand trial. The U.S. Attorney, under directions from the Justice Department, filed an extradition complaint and requested an arrest warrant in United States District Court on March 31. The District Judge was not satisfied that murder on the high seas was an extraditable offense under the Treaty. He therefore did not issue the arrest warrant until May 8, after receiving an opinion from a State Department legal advisor expressing the view that the offense was extraditable. That same day Chan was arrested and returned to the custody of the U.S. Attorney. He remained in the samé jail. Following the required procedure, on May 22, Liberia delivered to the State Department a duly certified, authenticated, formal extradition request. The request and accompanying documents were forwarded to the U.S. Attorney on June 16.

Meanwhile, on June 2, Chan had petitioned the District Court for a writ of habeas corpus. The court held a hearing and on June 16 entered an order granting the writ, quashing the arrest warrant, and releasing Chan to the custody of INS for deportation. The court found that Liberia had not timely produced the formal extradition papers pursuant to Article XI of the Treaty. We granted the United States’ motion to stay the District Court’s order pending this appeal.

The District Court decided that March 31 was the “date of commitment” for purposes of the Treaty, and, because Chan was still under arrest two months after that date, ordered him released. We conclude that the “date of commitment” contemplated by the Treaty was not March 31 but May 8, the date Chan was arrested pursuant to the court’s warrant. Therefore, the two month period had not expired prior to Chan’s habeas corpus hearing.

Additionally, at argument, this court, sua sponte, raised the question of whether Chan was actually a “fugitive from justice” under the terms of the Treaty. We consider this issue essential- to a proper determination of this appeal and decide that Chan is a fugitive properly extraditable under the Treaty.

I

Article I of the Treaty provides that the two governments will:

. . .deliver up to justice any person who may be charged with, or may have been convicted of, any of the crimes or offenses specified ., and who shall seek an asylum or shall be found within the territories of the other. .

54 Stat. 1733 (1939).

In determining whether Chan is a fugitive from justice within the scope of the Treaty, we assume two possible versions of his entrance into the United States: that the FBI agent arrested Chan in United States waters for a crime committed outside United States jurisdiction, and, alternatively, that the captain and Chan requested that Chan be removed from the ship in fear of his safety.

The FBI agent was authorized to investigate the incident and take Chan into custody both under the FBI’s general power to arrest and under international principles of jurisdiction. A coastal state may exercise its jurisdiction to arrest a person and conduct an investigation aboard a foreign vessel in its territorial sea upon a request for assistance by the master of the vessel. Restatement (2d), Foreign Relations Law of the United States, § 46(2)(a).

On the other hand, if Chan’s removal was based on both Chan’s and the Captain’s request, then the action by the United States authorities was valid under immigration laws. Section 212(d)(5) of the Immigration and Nationality Act, 8 U.S.C.A. § 1182(d)(5)(1970), authorizes the Attorney General, in his discretion, to parole aliens otherwise excludable under that section into the United States for reasons in the public interest. The reasons apparent in this situation, physical protection of Chan and potential extradition, are within the public interest. Klapholz v. Esperdy, 201 F.Supp. 294 (S.D.N.Y. 1961), aff’d, 302 F.2d 928 (2d Cir.), cert. denied, 371 U.S. 891, 83 S.Ct. 183, 9 L.Ed.2d 124 (1962) (parole for purpose of prosecution in the United States); cf. United States v. Cristancho-Puerto, 475 F.2d 1025 (1973). Additionally, the Immigration and Nationality Act supplies the authority for Chan’s detention by INS. Section 232, 8 U.S. C.A. § 1222 (1970), authorizes observation and examination of an alien to determine admissibility. Section 233, 8 U.S.C.A. § 1223 (1970), authorizes removal from the ship and detention of the alien pending an exclusion decision. See also, United States ex rel. Fink v. Tod, 1 F.2d 246 (2d Cir. 1924), reversed on confession of error, 267 U.S. 571, 45 S.Ct. 227, 69 L.Ed. 793 (1925). Thus we conclude that Chan was lawfully brought into and detained in this country.

Next we consider whether Chan is a fugitive within the terms of the Treaty. The courts have long decided that although an individual leaves the jurisdiction in which the crime was committed before the crime is discovered or before charges are brought, he is a fugitive and is extraditable. Application of D’Amico, 177 F.Supp. 648 (S.D.N.Y. 1960); Ex parte Davis, 54 F.2d 723 (9th Cir. 1931); Hogan v. O’Neill, 255 U.S. 52, 41 S.Ct. 222, 65 L.Ed. 497 (1921); Whiteman, 6 Digest of International Law 768. Also, the manner of departure from the jurisdiction in which the crime was committed is not determinative of whether the individual is a fugitive. He only need be found in the territory of the asylum jurisdiction. United States ex rel. Eatessami v. Marasco, 275 F.Supp. 492 (S.D.N.Y.1967); Hammond v. Sittel, 59 F.2d 683 (9th Cir. 1932). In analogous situations involving extradition between states, individuals transported out of the requesting state by federal or state authorities and held by those authorities are extraditable. Innes v. Tobin, 240 U.S. 127, 36 S.Ct. 290, 60 L.Ed. 562 (1916); Brewer v. Goff, 138 F.2d 710 (10th Cir. 1943); Roberts v. Reilly, 116 U.S. 80, 6 S.Ct. 291, 29 L.Ed. 544 (1885). Under either version of the manner of his entrance into the United States and despite his detention in this country, Chan was found within the territory of the United States for purposes of the Treaty and he is extraditable.

II

Secondly, we consider whether Chan was held under arrest beyond the two months allowed by the Treaty. Article XI of the Treaty, in conjunction with 18 U.S.C.A. §§ 3184-92 (1969), provides the procedural framework for extradition of an international fugitive. In the usual case an arrest warrant is sought only after submitting the formal extradition documents to the district court. However, under circumstances which indicate that the individual sought might leave the jurisdiction before formal extradition documents can be obtained, the Treaty contemplates the use of provisional arrest until the formal extradition documents arrive. 18 U.S.C.A. § 3184 (1969) is the authority for United States judicial officers to conduct the requisite proceedings for extradition under a treaty.

In this case the United States authorities sought provisional arrest pending arrival of the Liberian documents. The U.S. Attorney, acting in behalf of Liberia, filed a complaint on March 31. On May 8, when the District Judge was satisfied of the complaint’s sufficiency, he issued an arrest warrant committing Chan to the U.S. Attorney. The record indicates that the documents required under the treaty were forwarded to the U.S. Attorney by June 16.

The procedural scheme contemplated by the Treaty provides for provisional arrest of a fugitive in order to secure his presence pending a formal surrender request and an extradition hearing. The two-month time limitation is an agreement designed to protect the interests of the asylum country, the fugitive, and the requesting country. It protects the asylum country from needless expense and effort in detaining a fugitive longer than reasonably necessary for presentation of the formal request, it protects the fugitive from indefinite incarceration without formal charges and a hearing, it allows the demanding country time in which to prepare and transmit the formal request. In order to carry out these purposes, we interpret the term “date of commitment” to mean the date on which a fugitive is arrested for the sole purpose of extradition. To define “date of commitment” as commit-' ment for any purpose would confuse the asylum country about the duration of its responsibility for detaining a fugitive and would deprive the requesting country of the certainty of the two-month period in which to formally request extradition.

In Jiminez v. Aristeguieta, 311 F.2d 547, 564 (5th Cir. 1964), construing the analogous provision in the United States-Venezuela Extradition Treaty, this court held that the two-month detention period commenced on the date the arrest warrant was executed. Voloshin v. Ridenow, 299 F. 134, 137-38 (5th Cir. 1924) involved the analogous provision in the United States-Chile Extradition Treaty. We held that the period prescribed by that Treaty was measured from the date on which the defendant was arrested on the basis of the complaint. See, Ex parte Reed, 158 F. 891 (D.N.J.1908).

Chan’s commitment and detention under parole on January 30 was not a provisional arrest solely for the purpose of extradition. He was an excludable alien held pending whatever future action the Attorney General and the INS deemed proper, including deportation, immigration into the United States, or arrest for extradition.

The two-month period from Chan’s date of commitment for the purpose of extradition had not expired and the District Court incorrectly released him.

Reversed and remanded.

      . Chan was a resident of Hong Kong, British Crown Colonies, but his citizenship, British, Chinese, or otherwise, is not clear from the record. The British were notified of the incident, but no official British action appears in the record.

      . Article II of the Treaty provides :
      “Persons shall be delivered up according to the provisions of the present Treaty, who shall have been charged with or convicted of the following crimes or offenses:
      “1. Murder . . .
      * * * * *
      “8. Crimes committed at sea:
      (a) Piracy . . .
      (b) Wrongfully sinking or destroying a vessel at sea or attempting to do so;
      (e) Mutiny . . .
      (d) Assault on board ship upon the high seas with intent to do bodily harm.”
      54 Stat. 1733 (1939).
      The opinion stated that the negotiators of the treaty did not intend to preclude extradition for murder at sea by not including it in the paragraph enumerating extraditable crimes committed at sea, rather they formulated that paragraph for the purpose of adding specific crimes which by their terms are capable of commission only at sea. The District Judge accepted that interpretation of the treaty, and we also find that interpretation persuasive. See, Sayne v. Shipley, 418 F.2d 679, 684 (5th Cir. 1969), cert. denied, 398 U.S. 903, 90 S.Ct. 1688, 26 L.Ed.2d 61 (1970).

      . The pertinent portion of Article XI provides :
      “The arrest of the fugitive shall be brought about in accordance with the laws of the respective countries, and if, after an examination, it shall be decided, according to the law and the evidence, that extradition is due pursuant to this Treaty, the fugitive shall be surrendered in conformity to the forms of law prescribed in such cases.

        “The person provisionally arrested shall be released, unless within two months from the date of commitment in the territory of either one of the High Contracting Parties, the formal requisition for surrender with the documentary proofs hereinafter prescribed shall be made as aforesaid by the diplomatic agent or superior consular officer of the demanding government, or, in his absence, by a consular officer thereof.
      “If the fugitive criminal shall have been convicted of the crime or offense for which his surrender is asked, a copy of the sentence of the court before which such conviction took place, duly authenticated, shall be produced. If, however, the fugitive is merely charged with crime, a duly authenticated copy of the warrant of arrest in the country where the crime was committed shall be produced, together with the evidence of criminality mentioned in Article I hereof.” 54 Stat. 1733 (1939).

      . We pretermit the question of whether the provisional arrest under the Treaty was perfected by receipt of the documents by the State Department or whether the Treaty requires that they be filed in district courc. It is unnecessary to consider this question because we find that the “date of commitment” was May 8, which means the two month period had not expired under either filing requirement, and we assume the government will file the extradition documents in district court promptly upon publication of this decision.

      . If, as the evidence indicates, the incident occurred outside United States jurisdictional waters the United States can not prosecute Chan. Liberia, however, may properly exercise its territorial enforcement jurisdiction. Restatement (2d), Foreign Relations Law of the United States, §§ 20, 28, 32 (1965).

      . 18 U.S.C.A. § 3052 (1969).

      . The Attorney General has delegated that authority to the district directors of the INS. 8 C.F.R. § 212.5. No question of procedural irregularity in this regard was raised in this appeal.

      . Chan asserts that the United States should have deported him to Hong Kong shortly after admitting him to this country. This claim seems to stem from a letter in which the Silver Shelton’s owners guaranteed the cost of Chan’s air transportation to Hong Kong. Section 237(a), of the Immigration and Nationality Act, 8 U.S.C.A. § 1227(a) (1970), requires immediate deportation of excluded aliens unless the Attorney General, in his discretion, concludes that immediate deportation is not proper. Additionally the section requires the owner of the vessel on which the alien arrived to bear the deportation expenses. These statutes placed no affirmative duty on the Attorney General to immediately deport Chan.

      . Extradition treaties should be construed liberally, but absent a treaty or specific authority in a treaty the United States generally will not extradite a fugitive. Valentine v. United States, 299 U.S. 5, 57 S.Ct. 100, 81 L.Ed. 5 (1936); Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274 (1912).

      . Analogously, courts are not deprived of jurisdiction to try an accused if illegal methods were used to bring the individual before the court. Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); United States v. Sobell, 244 F.2d 520 (2d Cir. 1957).

      . See fn. 4, supra.

      . § 3184 provides a framework for either an arrest warrant based on a complaint stemming from formal extradition papers, or an arrest warrant for provisional arrest pending arrival of the formal extradition documents.

      . See, Fernandez v. Phillips, 268 U.S. 311, 45 S.Ct. 541, 69 L.Ed. 970 (1925).

      . Despite Chan’s release from provisional arrest and the quashing of the arrest warrant the government could have proceeded immediately with a complaint based upon the official extradition documents, which apparently would be sufficient for another arrest warrant under 18 U.S.C.A. § 3184, and a prompt extradition hearing. The treaty does not provide that all proceedings shall cease, merely that the fugitive shall be released from detention under the warrant and provisional arrest. Karadzole v. Artukovic, 170 F.Supp. 383, 386 (S.D.Cal. 1959).


author: BUTZNER, Circuit Judge:

text:
    OLD DOMINION BOX COMPANY, INCORPORATED, a Virginia corporation, Appellant, v. UNITED STATES of America, Appellee.
    No. 72-2285.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 6, 1973.
    Decided April 18, 1973.

      Edward S. Graves, Lynchburg, Va. (B. C. Baldwin, Jr., and Edmunds, Williams, Robertson, Sackett, Baldwin & Graves, Lynchburg, Va., on brief), for appellant.
    Robert S. Watkins, Atty., Tax Div., U. S. Dept. of Justice (Scott P. Crampton, Asst. Atty. Gen., of the U. S., Meyer Rothwacks and Bennet N. Hollander, Attys., Dept. of Justice, and Leigh B. Hanes, Jr., U. S. Atty., W. D. Va., on brief), for appellee.
    Before BUTZNER and FIELD, Circuit Judges, and MURRAY, District Judge.
   BUTZNER, Circuit Judge:

Old Dominion Box Company, the taxpayer, appeals from a judgment of the district court denying it a refund of income taxes in the amount of $31,796.14 and interest, which it had paid following disallowance by the Commissioner of Internal Revenue of a deduction for a $75,000 charitable contribution to the Dillard Foundation in the fiscal year ending January 1, 1960. Old Dominion claims that it was entitled to the deduction under any one of three theories: (1) the foundation was a qualified charitable organization at the time the contribution was made; (2) Old Dominion was an innocent contributor to the foundation, even though the tax exempt status of the foundation was subsequently retroactively revoked; or (3) the contribution was intended for and did in fact reach the Lynchburg Fine Arts Center, a qualified charity. The jury found against the taxpayer on the first two theories, and the court ruled against it on the third. Perceiving no error, we affirm.

I

Old Dominion, a Virginia corporation located in Lynchburg, Virginia, is controlled by the Dillard family. In 1959 it sold some of its manufacturing plants and from the profits made a $75,000 contribution to the Dillard Foundation. The deduction for this contribution was disallowed following an investigation of the Dillard Foundation by the Commissioner.

The Dillard family created the Dillard Foundation in 1951 to accept donations and disburse funds for charitable purposes, and the Commissioner granted it an exemption from federal income taxes in 1953. Between 1951 and 1963, the foundation made donations in excess of $500,000 to many recognized charities. In 1965, the foundation’s exemption was retroactively revoked because the Commissioner ruled that it had been operated for the benefit of private interests instead of for charitable purposes. The Commissioner determined that the foundation’s dealing in certain securities was a substantial departure from its charitable functions. He took the position that these transactions were designed to enable E. S. Dillard, president of Old Dominion, to claim on his personal income tax returns inflated charitable deductions when he gave some of the securities away. For its part, Old Dominion asserts that the foundation dealt in the securities in the ordinary course of investing funds, a practice permitted to all charitable foundations.

The evidence disclosed that in 1954, E. S. Dillard, who in addition to being president of Old Dominion was an officer and director of the Dillard Foundation, acquired all of the claims against the Brown Dynalube Company and all of its outstanding stock from a transferee of Dynalube’s organizers for $1.00. He immediately paid Dynalube $1,828.24 and transferred to the company all of the claims that he had acquired against it. In return, he received Dynalube’s six per cent debentures having a face value of $85,000. Several months later he paid Dynalube $2,500 for another debenture with a face value of $2,500. Thus, he acquired Dynalube debentures with a total face value of $87,500 in exchange for $4,328.24.

At the time E. S. Dillard acquired the debentures he intended to give them away instead of selling them. Acting on this intention, between 1954 and 1958 he donated $59,000 in Dynalube debentures to the foundation and $26,000 to a church. He deducted the face value of these debentures as charitable contributions on his personal income tax returns.

Beginning in 1956, the foundation disposed of the debentures received from E. S. Dillard by selling them at face value, either to the Massie Construction Company or to the Minor Foundation, which then sold them to Massie. In the meantime, the church sold its $26,000 worth of debentures to Massie or to intermediaries who in turn sold them to Massie.

The Massie Construction Company and the Minor Foundation were informally linked to the Dillard Foundation through William T. Minor, Jr. His family established the Minor Foundation and his father-in-law was the owner of the Massie Construction Company. Minor served at one time or another as attorney and accountant for Old Dominion, E. S. Dillard, the Dillard Foundation, the Minor Foundation, the Brown Dynalube Company, and the Massie Construction Company.

By September 15, 1959, Massie had purchased at face value the entire $87,500 issue of Dynalube debentures— $85,000 from charities, including the Dillard Foundation, or the transferors of charities, and $2,500 directly from E. S. Dillard. Coincidentally, between 1955 and September 15, 1959, the Dillard Foundation had acquired all of the outstanding six percent debenture bonds of the Massie Construction Company, aggregating $96,350, by ■ purchasing $81,-850 at face value and receiving a donation of a $14,500 bond from E. S. Dillard. Throughout this period, the financial condition of both Dynalube and Massie ranged from marginal to precarious.

In August 1959, E. S. Dillard relinquished ownership of Dynalube by giving his stock to the company’s former president. A month later, Massie exchanged its entire holdings of Dynalube debentures, aggregating $87,500, for 875 shares of Dynalube stock. " The Dillard Foundation then traded all of its Massie bonds, having a face value of $96,350, to Massie in exchange for the 875 shares of Dynalube stock and $8,850 in cash. Finally, the foundation donated the 875 shares of Dynalube stock to a church, which in turn sold the stock to the former president of Dynalube for $87.50.

II

Section 501 of the Internal Revenue Code of 1954 exempts from taxation a foundation organized and operated for charitable purposes. The district court properly instructed the jurors that in order for them to hold that the foundation was not operating for charitable purposes they must find that its trading in Dynalube and Massie securities was a substantial part of its activities or diverted a substantial part of its resources. It submitted the case on the following special interrogatories, which the jury answered in the negative:

“1. Did the Dillard Foundation operate at all times during the twelvemonth period ending November 30, 1959 for religious, charitable, and educational purposes?
“2. If the answer to question 1 is ‘No,’ was the Dillard Foundation operating for religious, charitable, and educational purposes when the gift of $75,000.00-was pledged on October 30, 1959?”

The role played by the foundation in inflating the value of the Dynalube debentures reported by E. S. Dillard as charitable deductions on his personal income tax return amply supports the jury’s finding that during the times pertinent to this case, the foundation was not operating for charitable purposes. The foundation’s substantial non-charitable activities destroyed its entitlement to an exemption, regardless of its other charitable undertakings. Cf. Better Business Bureau v. United States, 326 U.S. 279, 283, 66 S.Ct. 112, 90 L.Ed. 67 (1945). Moreover, the foundation’s exemption cannot be preserved on the ground that its dealings in Dynalube debentures generated income for other charitable gifts. Stevens Bros. Foundation, Inc. v. Commissioner, 324 F.2d 633, 639 (8th Cir. 1963), cert. denied, 376 U.S. 969, 84 S.Ct. 1135, 12 L.Ed.2d 84 (1964); cf. University Hill Foundation v. Commissioner, 446 F.2d 701, 703 (9th Cir. 1971), cert. denied, 405 U.S. 965, 92 S.Ct. 1172, 31 L.Ed.2d 240 (1972); United States v. Community Services, Inc., 189 F.2d 421, 425 (4th Cir. 1951). It is, therefore, clear that Old Dominion cannot recover on the ground that the Dillard Foundation was an exempt charity.

III

The Commissioner in the exercise of his sound discretion may retroactively revoke an exemption. Int.Rev. Code of 1954, § 7805(b); Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 184 (1957). The Commissioner, however, has provided by regulation that the charitable deductions of innocent contributors to an organization whose exemption has been forfeited will not be retroactively disallowed. Treas. Reg. § 1.503(e)-1 (1958); Rev.Proc. 64-25, 1964-1 Cum.Bull. 694. In this case, the Commissioner’s ruling revoking the foundation’s exemption expressly limited its retroactive effect to protect innocent contributors, but it stated that this would not preclude disallowance of deductions made by contributors who were aware of the foundation’s activities.

Answering a special interrogatory, the jury found that Old Dominion was not an innocent contributor at the time that it pledged the $75,000 to the foundation. This finding, we conclude, is amply supported by the evidence. D. H. Dillard, chairman of Old Dominion’s board, E. S. Dillard, the company’s president, and W. C. Pritchett, its vice president for finance, were all officers and directors of the foundation. William T. Minor, Jr. served as attorney and accountant for both the company and the foundation. E. S. Dillard and Pritchett played an active role in the foundation’s Dynalube-Massie transactions, and E. S. Dillard was the direct beneficiary of these activities. D. H. Dillard died before this case was tried, and there is no direct testimony concerning his knowledge. The evidence disclosed, however, that during the time the foundation was dealing in Dynalube and Massie securities, he closely followed the foundation’s day to day operations and no significant action could be taken without his approval. From this the jury could infer that he, too, was aware of the activities that led to the revocation of the foundation’s exemption.

Invoking familiar principles of agency, Old Dominion argues that its officers’ knowledge of the foundation’s affairs cannot be imputed to the company because they were not acting within the scope of their employment while engaged in the foundation’s business. This issue raised a factual question, which the trial court submitted to the jury with appropriate instructions. The jury’s rejection of Old Dominion’s position is amply supported by the record. Old Dominion and the foundation were related by more than interlocking directorates. The officers of the foundation used the company’s facilities to transact the foundation’s business, and they performed services for the foundation on company time. The jury was entitled to infer that Old Dominion acquiesced in and approved the participation of its officers in the foundation's work.

Because of the jury’s finding, Old Dominion is not entitled to take advantage of the exception the Commissioner made for innocent contributors in the revocation ruling.

IY

Old Dominion’s third ground for recovery is based on the government’s concession during the trial that the company’s contribution, though made to the foundation, was intended by the company for the Lynchburg Fine Arts Center, an admitted charity, and that the foundation transmitted the contribution to the Center. We do not reach the merits of this claim, for, in agreement with the district judge, we hold that it is barred as untimely.

Old Dominion’s claim for refund stated:

“The disallowance in the tax year ended 1/1/60 of $75,774.69 of charitable contributions made by the taxpayer to Dillard Foundation, Inc. was improper for two reasons: First, the donee was a qualified charitable entity, and, second, the taxpayer innocently made its contributions in good faith in reliance on the donee’s charitable status.”

The company’s complaint originally was based on the two theories set forth in this claim. While the suit was pending in its pretrial stages, but after the period of limitations for an administrative refund claim had run, the company amended its complaint to allege:

“4A. The contribution of $75,000 was intended by the plaintiff for and was duly received by Lynchburg Fine Arts Center, Inc., which was at all relevant times a charitable corporation within the meaning of said Section 501(c)(3), contributions to which were deductible for Federal Income Tax purposes.”

Before instituting an action to recover taxes, a taxpayer must file a claim for refund setting forth the grounds for recovery. Despite the omission of any reference to the foundation as a conduit for the contribution to the Fine Arts Center in its administrative claim for refund, Old Dominion insists that it has complied with the Code. It asserts that its orginal claim was adequate to make the Commissioner aware of the theory set forth in its amended complaint for the following reasons: the original claim stated that the gift was made to a qualified charity; the foundation’s practice was not to retain donations, but merely to serve as a conduit to qualified recipients; on audit, the Commissioner had all of the documents relating to the transactions at his disposal; these documents established that the donation was intended for and did in fact reach the Lynchburg Fine Arts Center, which is a qualified charity. Moreover, Old Dominion contends that its amended complaint was sufficient to present the issue because the amendment did not vary the theory of recovery, but simply specified the facts in greater detail.

The cases interpreting the requirement of a timely claim for refund do not support Old Dominion’s position. In United States v. Andrews, 302 U.S. 517, 524, 58 S.Ct. 315, 319, 82 L.Ed. 398 (1938), the Court said:

“Where a claim which the Commissioner could have rejected as too general, and as omitting to specify the matters needing investigation, has not misled him but has been the basis of an investigation which disclosed facts necessary to his action in making a refund, an amendment which merely makes more definite the matters already within his knowledge, or which, in the course of his investigation, he would naturally have ascertained, is permissible. On the other hand, a claim which demands relief upon one asserted fact situation, and asks an investigation of the elements appropriate to the requested relief, cannot be amended to discard that basis and invoke action requiring examination of other .matters not germane to the first claim.”

Applying this rule, we recently held in Sappington v. United States, 408 F.2d 817, 819 (4th Cir. 1969):

“A claim seeking refund upon one asserted fact situation may not be amended out of time so as to require an investigation of matters not germane to the original claim . While an amendment which only makes more definite matters already within the Commissioner’s knowledge is permissible, the fact of specification of the original claim tends to confine the administrative investigation to that issue.”

The principles stated in Andrews and Sappington govern this issue. The original claim for refund was not general. It specified that the foundation was a qualified charity and that the taxpayer was an innocent contributor. It contained no mention of the Fine Arts Center and no suggestion that Old Dominion was relying on the theory that the foundation served only as a conduit to pass the contribution to an exempt organization. Indeed, the record supports the opposite inference, because the facts alleged in the amendment were inconsistent with the original claim which named the foundation as donee. For this reason it is apparent that the amendment was an impermissible shift to a new and different ground. United States v. Garbutt Oil Co., 302 U.S. 528, 531, 58 S.Ct. 320, 82 L.Ed. 405 (1938).

Nor can Old Dominion prevail simply because the records documenting the purpose of the contribution were examined by the agent who audited the claim. The agent testified that although the documentary evidence pertaining to the contribution was available, its significance as a basis for Old Dominion’s claim was not apparent to him. Furthermore, during the course of his audit no representative of either the foundation or the company explained the pertinence of the records to the claim, and he did not learn of the conduit theory until just before trial. The Commissioner, through his agents, cannot be expected to formulate from raw facts a taxpayer’s unarticulated claim. Cf. Stoller v. United States, 444 F.2d 1391, 1393 (5th Cir. 1971).

Old Dominion urges that the failure of the government to oppose amendment of the complaint constitutes a waiver of any objection to the amendment’s basis . for recovery. We reject this contention for two reasons. First, because, as we have previously held, the amendment constituted a new ground for recovery, no officer of the government could waive the statute of limitations. See United States v. Garbutt Oil Co., 302 U.S. 528, 533, 58 S.Ct. 320, 82 L.Ed. 405 (1938). Second, the amendment was made to paragraph 4 of the complaint, which dealt only with factual matters. Paragraph 10, which set forth the grounds for recovery, remained unamended. When the government learned that the amendment was a ground on which Old Dominion sought recovery, it moved to strike the amendment because it varied from the claim for refund. It is, therefore, clear that the government’s conduct did not constitute a waiver.

The judgment of the district court is affirmed.

      . The Commissioner had previously ruled that E. S. Dillard could not deduct the face value of the debentures which he gave to charity in 1954 and 1955 because sales of the debentures by the charities were not arms length transactions and did not establish fair market value. The Tax Court, after redetermining the value of the debentures, affirmed the Commissioner’s ruling. E. S. Dillard and Jean T. Dillard, 1961 T.C.Mem. 30, 1961 P-H Tax Ct.Mem. ¶ 61,030.

      . Int.Rev.Code of 1954, § 501(c)(3) describes an exempt organization:
      “Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office.”
      Taxpayers are entitled to deduct contributions to exempt charitable foundations by virtue of Int.Rev.Code of 1954, § 170(a)(1), which provides:
      “There shall be allowed as a deduction any charitable contribution (as defined in subsection (c)) payment of which is made within the taxable year . . ."
      Int.Rev.Code of 1954, § 170(c) (2) describes a qualified charity:
      “For purposes of this section, the term ‘charitable contribution’ means a contribution or gift to or for the use of—
      . . . . .
      “A corporation, trust, or community chest, fund, or foundation—
      (A) created or organized in the United States or in any possession thereof, or under the law of the United States, any State or Territory, the District of Columbia, or any possession of the United States;

        (B) organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes or for the prevention of cruelty to children or animals;
      (C) no part of the net earning of which inures to the benefit of any private shareholder or individual; and
      (D) no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation.
      “A contribution or gift by a corporation to a trust, chest, fund, or foundation shall be deductible by reason of this paragraph only if it is to be used within the United States or any of its possessions exclusively for purposes specified in subparagraph (B).”

      . On the merits, Old Dominion relies on Faulkner v. Commissioner, 112 F.2d 987 (1st Cir. 1940). In response, the government asserts that Faulkner is distinguishable on its facts and that the result urged by Old Dominion would negate the provisions of § 170(a) (1) and (e).

      . Int.Rev.Code of 1954, § 6511(a) sets forth the limitations period for filing a claim for refund:
      “Claim for credit or refund of an overpayment of any tax imposed by this title in respect of which tax the taxpayer is required to file a return shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later, or if no return was filed by the taxpayer, within 2 years from the time the tax was paid. Claim for credit or refund of an overpayment of any tax imposed by this title which is required to be paid by means of a stamp shall be filed by the taxpayer within 3 years from the time the tax was paid.”
      The Commissioner has expanded on this requirement in Treas.Reg. § 301.6402-2 (b)(1) (1954):
      “No refund or credit will be allowed after the expiration of the statutory period of limitation applicable to the filing of a claim therefor except upon one or more of the grounds set forth in a claim filed before the expiration of such period. The claim must set forth in detail each ground upon which a credit or refund is claimed and facts sufficient to apprise the Commissioner of the exact basis thereof . . . ”
      Old Dominion made the final payment of the assessment on October 1, 1965. The claim for refund was filed with the Commissioner on September 21, 1967, and the complaint was amended to set forth the new grounds on July 5, 1972.

      . Int.Rev.Code of 1954, § 7422(a) provides that “[n]o suit . . . shall be maintained . . . for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed . . . until a claim for refund or credit has been duly filed . . .” See Treas. Reg. § 301.6402-2 (1954).


author: PER CURIAM:

text:
    Abraham Joseph Neal RHODES, who now uses the name Abraham J. Rosenberg, Plaintiff-Appellant, v. BUREAU OF PRISONS et al., Defendants-Appellees.
    No. 72-3419
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 27, 1973.

      Abraham J. Rosenberg, pro. se.
    Roby Hadden, U. S. Atty., Tyler, Tex., Charles E. Myers, Asst. U. S. Atty., Beaumont, Tex., for defendants-appellees.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.

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

   PER CURIAM:

This is an appeal from an order of the district court dismissing a civil rights action filed pursuant to 42 U.S.C. § 1983 seeking injunctive relief and damages. We affirm, but for reasons somewhat different from those assigned below.

Appellant, a prisoner incarcerated in the Federal Correctional Institution at Texarkana, Texas, filed his complaint in the United States District-Court for the District of Columbia. He sought an injunction against the Bureau of Prisons and the warden at Texarkana, in connection with their alleged interference with his mail and his right to communicate with the courts. The case was transferred on motion of respondents to the court from whence this appeal was taken. Prior to the order of transfer, the appellant had notified the court of his transfer from Texarkana to Eglin Air Force Base. After the order of transfer he filed in the transferor court an amended complaint seeking $25,000 damages from each named respondent. This amendment is a part of the record which was transmitted with the case to the transferee court. The case was then dismissed.

We agree that the claim for injunctive relief was rendered moot by appellant’s transfer out of the district. See Russell v. Henderson, 5 Cir. 1973, 475 F.2d 1138. However, the fact that appellant is no longer confined in the district does not affect his standing to seek damages in connection with the alleged wrongdoings. Culp v. Martin, 5 Cir. 1973, 471 F.2d 814. Nevertheless, standing is of no avail to appellant. Although the district court erroneously dismissed the damage claim as moot, we do not deem it necessary to remand the case for further proceedings since, as a matter of law, appellant has failed to present any legal basis upon which he could recover under 42 U.S.C. § 1983. See Roots v. Callahan, 5 Cir., 1973, 475 F.2d 751 [No. 72-3589, March 20, 1973]; Norton v. McShane, 5 Cir. 1964, 332 F.2d 855, 862; Bethea v. Reid, 3 Cir. 1971, 445 F.2d 1163, 1164; Williams v. Rogers, 8 Cir. 1971, 449 F.2d 513, 517.

Affirmed.