author: RONEY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Scott Allen NOLAND, Defendant-Appellant.
    No. 73-3786.
    United States Court of Appeals, Fifth Circuit.
    June 10, 1974.

      Hugh S. Lowe, Austin, Tex. (Court-appointed), for defendant-appellant.
    William S. Sessions, U. S. Atty., Joel D. Conant, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
    Before BROWN, Chief Judge, and GODBOLD and RONEY, Circuit Judges.
   RONEY, Circuit Judge:

Convicted on two drug counts carrying a maximum penalty of five years each, Scott Allen Noland was given enhanced concurrent sentences of ten years on each count by reason of a prior drug felony conviction. Noland appeals the enhanced portion of his sentence on the sole ground that the United States attorney filed with the District Court an information for enhancement one day after sentencing, rather than prior to trial as required by 21 U.S.C.A. § 851. In this case, apparently the first to be decided under this new enhancement section passed in 1970, we hold that strict compliance by the Government with the statutory filing requirement is a prerequisite for an enhanced sentence. We therefore set aside so much of the sentence as resulted from enhancement. We affirm the conviction, however, finding that defendant’s challenge to the venue of the trial is unfounded, and that any prejudice resulting from the prosecutor’s instructions to certain potential witnesses not to talk to the defense was removed by countermanding those instructions in sufficient time to permit defense counsel to prepare his case for trial.

I.

Prior to the passage of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.A. § 801 et seq., the procedure for enhancement for narcotics and marijuana convictions was contained in 26 U.S.C. § 7237(c) (2) (1964) which provided that the United States attorney advise the court after conviction whether the conviction is the offender’s first or subsequent offense, and “ [i] f it is not a first offense, the United States attorney shall file an information setting forth the prior convictions.” The section then gave the offender the opportunity to affirm or deny his identity as the prior offender, and if he denied it, sentence was postponed until a trial by jury on the issue of identity. The section then provided that second offenders “shall be” given enhanced sentences in excess of the sentence that would be given a first offender.

In several cases under this provision, the courts held that an enhanced sentence would not be set aside because of technical defects in procedure, if there had been substantial compliance with the statutory purposes of advising the court of past convictions and of permitting the offender to deny and litigate his identity as the person previously convicted. Good v. United States, 410 F.2d 1217, 415 F.2d 771 (5th Cir. 1969), cert. denied, 397 U.S. 1002, 90 S.Ct. 1131, 25 L.Ed.2d 413 (1970) (defendant admitted previous conviction at sentencing hearing in response to question from the court); King v. United States, 346 F.2d 123 (1st Cir. 1965) (after admitting prior conviction, defendant was sentenced prior to filing of information); United States v. Bell, 345 F.2d 354 (7th Cir.), cert. denied, 382 U.S. 882, 86 S.Ct. 175, 15 L.Ed.2d 123 (1965) (court vacated first offender sentence and imposed enhanced sentence on Government’s motion to vacate and for leave to file information); United States v. Duhart, 269 F.2d 113 (2d Cir. 1959) (enhanced sentence vacated and reimposed after discovery that no information had been filed); Knight v. United States, 225 F. 2d 55 (9th Cir.), cert. denied, 350 U.S. 890, 76 S.Ct. 148, 100 L.Ed. 784 (1955) (Government advised court of defend-

ant s prior convictions, which defendant admitted, but did not file information).

The above provision was repealed effective May 1, 1971 by the Comprehensive Drug Abuse and Control Act of 1970. Pub.L.No.513, §§ 1101(b)(4)(A), 1105(a), 84 Stat. 1292, 1295. Section 411 of that Act, 21 U.S.C.A. § 851, enacted the present procedure for establishing previous convictions. Section 851 opens with the provision that

No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.

The section continues by providing that the court may postpone the trial or the taking of the plea for the purpose of allowing the United States attorney to obtain facts regarding prior convictions, upon a showing that such facts cannot be obtained with due diligence prior thereto. These are the critical provisions to this appeal. The required information stating Noland’s prior conviction was not filed until one day after sentencing. With the precedent of the eases cited above, such procedure would have complied with the prior Act sufficiently to permit the enhanced sentence to stand. But it clearly did not comply with the language of the present controlling Act, and the question posed to us is whether that lack of compliance matters when Noland admitted his conviction at the sentencing hearing and has never in this case challenged its validity. Only after the ten-year sentences were pronounced did the defendant move to reduce them to the maximum allowable for first offenders on the ground the Government had not filed the information as required by section 851. After the motion was served, the Government filed the information and the District Court subsequently denied the motion to reduce sentence.

Neither party has cited to us any cases decided after this section became effective in 1971. The thrust of prior law, which required minimum sentences, was mandatory enhancement. The United States attorney was required to advise the court whether the defendant was a first offender. The court was required to enhance the sentence of a multiple offender, whether or not the prosecutor or the court thought enhancement desirable or necessary. It was in this context of congressionally ordained mandatory enhancement that prior cases upheld enhanced sentences despite procedural defects which did not infringe the defendant’s right to deny and litigate his status.

The legislative history of the Comprehensive Drug Abuse Prevention and Control Act of 1970 reveals that one major goal of the Act was to make more flexible the penalty structure for drug offenses. The purpose was to eliminate “the difficulties prosecutors and courts have had in the past arising out of minimum mandatory sentences.” Mandatory minimum sentencing was abolished to permit greater prosecutorial and judicial flexibility.

In keeping with this purpose, the new statutory scheme contemplates prosecutorial discretion to seek enhancement. The new procedure for establishing previous convictions reflects this change in the nature of enhancement. Section 851 provides that no person shall be sentenced to increased punishment unless the United States attorney files the requisite information before trial or the taking of a guilty plea. Since the information must state the previous convictions “to be relied upon” it is obvious that the prosecutor is permitted to select which previous drug felony convictions the Government will rely upon. Both of these provisions of section 851 demonstrate that it is up to the United States attorney to seek enhancement if sentence is to be enhanced.

In granting this discretion to the prosecution, Congress imposed a strict condition on its exercise. Section 851 is phrased in mandatory language. The words “[n]o person . . . shall be sentenced to increased punishment unless . ” restrict the court’s authority to impose enhanced sentences to cases where the information is filed with the court and served on the defendant before trial. The importance of the time of filing is emphasized first, by section 851’s provision for postponement of the trial if the United States attorney cannot obtain the evidence of previous conviction in timé, and second, by the provision for rectification of clerical mistakes in the information at any time before sentencing, suggesting that they may not be corrected after sentence is pronounced. This latter provision clearly militates against filing after sentence, as was done in this case.

The Government’s argument that Noland was not surprised by the enhanced sentence carries no weight in the face of the plain words of the statute. Admittedly, Noland was advised at arraignment that he could receive ten years on each count. Further, he knew of his previous conviction from the outset, never challenged its validity in this case, and admitted it at the sentencing hearing. Finally, the District Court received pretrial notice of Noland’s record at a bail hearing. But the statute prohibits an enhanced sentence unless the Government seeks it and requires that to obtain enhancement, the Government must file an information prior to trial. Provision for enhanced sentencing is a legislative decision, and the procedure the legislature prescribes to effectuate its purpose must be followed.

Noland’s concurrent sentences must therefore be reduced to the statutory maximum of five years on each count, to run concurrently.

II.

Contrary to Noland’s suggestion that the conviction should be reversed because of improper venue of the trial, a criminal defendant does not have a constitutional right to trial in his home district. See Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964); cf. U.S.Const. art. III, § 2, cl. 3 & amend. VI. While there may be cases where failure to hold a trial in a defendant’s home district would work such a hardship on him as to constitute a denial of due process, this is not one of them. Under Federal Rule of Criminal Procedure 21(b), a motion for change of venue is addressed to the sound discretion of the District Court. United States v. Lyles, 471 F.2d 1167 (5th Cir. 1972); Addison v. United States, 317 F.2d 808 (5th Cir. 1963), cert. denied, 376 U.S. 905, 84 S.Ct. 658, 11 L.Ed.2d 605 (1964). We are satisfied that there was no abuse of discretion here. Noland’s allegations that he was charged with a related crime in the District of Colorado; that his principal counsel was there; that he and his parents, who financed his defense, resided there; and that his schooling there would be interrupted by trial in Texas, are not so compelling as to show an abuse of discretion in the District Court’s denying the motion to transfer the trial from Texas to Colorado. No-land alleged that witnesses in Colorado would be inconvenienced by trial in Texas. The trial judge stated he would make a final ruling on this contention when Noland provided a list of witnesses and .a summary of their anticipated tes-' timony. No list was tendered. Under the circumstances, Noland failed to demonstrate specific facts from which the District Court could have concluded that the convenience of witnesses and the interest of justice required transfer. Lindberg v. United States, 363 F.2d 438 (9th Cir. 1966); see United States v. Kelly, 467 F.2d 262 (7th Cir. 1972), cert. denied, 411 U.S. 933, 93 S.Ct. 1905, 36 L.Ed.2d 393 (1973).

III.

Lastly, Noland was not denied a fair trial by misconduct on the part of the assistant United States attorney in charge of the case. The government contends that even though counsel may have acted improperly in forcing a defense investigator to stop questioning certain potential defense witnesses in the middle of his interrogation and in telling the witnesses not to talk to the defense, Noland has suffered no prejudice. Four days after the incident, following a meeting with the defense attorney, Government counsel gave the defense attorney a note reading:

To Whom It May Concern:
The bearers of this note have my permission to discuss the facts concerning the case in which Stephen Kidder and/or Susan Rigsby are potential witnesses.
Joel D. Conant

This cured any prejudice resulting from the incident, in the context of this case. After securing the note, appellant’s attorney never attempted to re-interview the affected witnesses and nothing in the record indicates they would not have discussed the case with the defense, if requested.

Affirmed and remanded for reduction of sentence.

      . 26 U.S.C. § 7237(c) (2) (1964), 50 Stat. 569, provided:
      After conviction (but before pronouncement of sentence) of any offense the penalty for which is provided in subsection (a) or (b) of this section, subsection (c) or (h) of section 2 of the Narcotic Drugs Import and Export Act, as amended, or such Act of July. 11, 1941, as amended, the court shall be advised by the United States attorney whether the conviction is the offender’s first or a subsequent offense. If it is not a first offense, the United States attorney shall file an information setting forth the prior convictions. The offender shall have the opportunity in open court to affirm or deny that he is identical with the person previously convicted. If he denies the identity, sentence shall be postponed for such time as to permit a trial before a jury on the sole issue of the offender’s identity with the person previously convicted. If the offender is found by the jury to be .the person previously convicted, or if he acknowledges that he is such person, he shall be sentenced as prescribed in subsection (a) or (b) of this section, subsection ió) or (h) of such section 2, or such Act of July 11, 1941, as amended, as the case may be.

      . § 851. Proceedings to establish prior convictions — Information filed by United States Attorney

      (a) (1) No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon. Upon a showing by the United States attorney that facts regarding prior convictions could not with due diligence be obtained prior to trial or before entry of a plea of guilty, the court may postpone the trial or the taking of the plea of guilty for a reasonable period for the purpose of obtainiug such facts. Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence.
      (2) An information may not be filed under this section if the increased punishment which may be imposed is imprisonment for a term in excess of three years unless the person either waived or was afforded prosecution by indictment for the offense for whieh such increased punishment may be imposed.

        Affirmation or denial of previous conviction

      (b) If the United States attorney files an information under this section, the court shall after conviction but before pronouncement of sentence inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and shall inform him that any challenge to a prior conviction which is not made before sen-fence is imposed may not thereafter be raised to attack the sentence.

        Denial; written response; hearing

      (c) (1) If the person denies any allegation of the information of prior conviction, or claims that any conviction alleged is invalid, he shall file a written response to the information. A copy of the response shall be served upon the United States attorney. The court shall hold a hearing to determine any issues raised by the response which would except the person from increased punishment. The failure of the United States attorney to include in the information the complete criminal record of the person or any facts in addition to the convictions to be relied upon shall not constitute grounds for invalidating the notice given in thé information required by subsection (a) (1) of this section. The hearing shall be before the court without a jury and either party may introduce evidence. Except as otherwise provided in paragraph (2) of this subsection, the United States attorney shall have the burden of proof beyond a reasonable doubt on any issue of fact. At the request of either party, the court shall enter findings of fact and conclusions of law.
      (2) A person claiming that a conviction alleged in the information was obtained in violation of the Constitution of the United States shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall have the burden of proof by a preponderance of the evidence on any issue of fact raised by the response. Any challenge to a prior conviction, not raised by response to the information before an increased sentence is imposed in reliance thereon, shall be waived unless good cause be shown for failure to make a timely challenge.

        Imposition of sentence

      (d) (1) If the person files no response to the information, or if the court determines, after hearing, that the person is subject to increased punishment by reason of prior convictions, the court shall proceed to impose sentence upon him as provided by this part.
      (2) If the court determines that the person has not been convicted as alleged in the information, that a conviction alleged in the information is invalid, or that the person is otherwise not subject to an increased sentence as a matter of law, the court shall, at the request of the United States attorney, postpone sentence to allow an appeal from that determination. If no such request is made, the court shall impose sentence as provided by this part. The person may appeal from an order postponing sentence as if sentence had been pronounced and a final judgment of conviction entered.

        Statute of limitations

      (e) No person who stands convicted of an offense under this part may challenge the validity of any prior conviction alleged under this section which occurred more than five years before the date of the information alleging such prior conviction.

      . The House Committee on Interstate and Foreign Commerce, in reporting on the House bill, the version ultimately passed, explained the reasons for revising the penalty structure:
      The foregoing sentencing procedures [penalties revised by the Act] give maximum flexibility to judges, permitting them to tailor the period of imprisonment, as well as the fine, to the circumstances involved in the individual case.
      The severity of existing penalties, involving in many instances minimum mandatory sentences, have led in many instances to reluctance on the part of the prosecutors to prosecute some violations, where the penalties seem to be out of line with the seriousness of the offense. In addition, severe penalties, which do not take into account individual circumstances, and which treat casual violators as severely as they treat hardened criminals, tend to make convictions somewhat more difficult to obtain. The committee feels, therefore, that making the penalty structure in the law more flexible can actually serve to have a more deterrent effect than existing penalties, through eliminating some of the difficulties prosecutors and courts have had in the past arising out of minimum mandatory sentences.
      H.Rep.No.91-1444, 91 St.Cong., 2d Sess., 1970 U.S.Code Cong. & Admin.News, pp. 4566, 4576.


source: Caselaw Access Project

author: RIVES, Circuit Judge:

license: Public Domain

text:
    Joe FLEMING, Plaintiff-Appellee, v. PAN AMERICAN FIRE & CASUALTY COMPANY, Defendant-Appellant.
    No. 73-2285.
    United States Court of Appeals, Fifth Circuit.
    June 6, 1974.

      W. Stanley Rodgers, Huntsville, Ala., for defendant-appellant.
    Paul L. Millirons, Huntsville, Ala., for plaintiff-appellee.
    Before RIVES, WISDOM and MORGAN, Circuit Judges.
   RIVES, Circuit Judge:

Pan American Fire & Casualty Company (hereafter Pan Am) appeals from an $8,586.00 judgment in favor of Joe Fleming (hereafter Fleming), entered after a trial by the court without a jury. We affirm.

On May 21, 1971, Pan Am issued its motor-truck cargo policy to the named insured William W. Hazelwood (hereafter Hazelwood). It was stipulated that the policy was in force and effect on June 12, 1971, when one of the covered vehicles was involved in an accident. The consequent loss is the subject of this suit.

On appeal, the only substantial question presented is whether Fleming had a direct claim against Pan Am on or arising out of its policy. Fleming’s claim was based upon two independent theories: 1. that Fleming had a right to proceed in equity as provided by section 12 of Title 28, Code of Alabama recompiled 1958, either alone or as construed in connection with the preceding section 11 of the same title; 2. that Fleming had become a third-party beneficiary under the terms of the policy itself. Each theory presents a close and difficult question. The district court held with Pan Am under the first theory, but with Fleming under the second. Following the same order of consideration, we conclude that Fleming had a • claim against Pan Am based upon either or both theories. We therefore affirm the judgment of the district court.

On June 11, 1971, Hazelwood was employed by contract made in Texas to haul sixty-five Hereford heifer cattle, the property of Fleming, from Henrietta, Texas, to Madison County, Alabama. The truck was loaded on June 11 and started its movement into Alabama. It was involved in an accident on June 12, 1971, at a point in Alabama about twenty-two miles north of Tuscaloosa, when it struck a tree and burned. Thirty-six head of cattle were either killed or so injured as to render death immediately necessary within the coverage of the policy.

On July 19, 1971, Fleming filed suit against Hazelwood. On September 17, 1971, an agent of Pan Am completed the blanks in a proof of loss and presented it to Hazelwood for his signature. • Such proof of loss was signed by Hazelwood before a Notary Public and returned to Pan Am’s agent. That proof was accepted by Pan Am as sufficient under the terms of the policy. On September 24, 1971, Pan Am issued its draft in the sum of $2,400.00 payable to Hazelwood and City National Bank of Wichita Falls, Texas. The face of the draft contained the inscription, “Nature of payment 13 head yearling heifers killed.” On the back of the draft appeared the following:

“All parties to whom this draft is made payable must endorse it properly (in ink) or the draft will not be pain
******
“Endorsement of this draft by payee or payees is acknowledgment of full settlement, satisfaction, compromise, and discharge of all claims and demands of every nature and kind arising from the loss or accident described on the face hereof and shall apply to all unknown unanticipated injuries or damages as well as those now disclosed.”

Underneath that inscription the draft was endorsed by Hazelwood and the said City National Bank, and it was then paid by the bank upon which it was drawn, and thereafter by Pan Am.

On October 24, 1971, Fleming obtained a judgment by default against Hazelwood in the amount of $14,525.00. That judgment remains unpaid. Fleming received none of the proceeds of the policy of insurance paid by Pan Am to Hazelwood and the City National Bank. Subsequent to that payment, Hazelwood was adjudicated a bankrupt and as against him Fleming’s judgment was discharged in bankruptcy. Fleming’s present action against Pan Am was commenced on January 7,1972.

I.

We consider first whether Fleming had a direct claim against Pan Am based on section 12 of Title 28 of the Alabama Code, either by its own terms or as construed in connection with the immediately preceding section ll.

The district court held as follows:

“This Court rejects plaintiff’s contention that by resort to the rule of in pari materia, the right created by the Code of Alabama, Tit. 28 § 11 (Re-comp.1958), should be imported into the provisions of Section 12 which provides a remedy only. When Section 12 was amended in 1953 by extending the remedy of an injured party to include judgments ‘for loss or damage to property,’ Section 11 was left undisturbed. Failure to amend Section 11 may have been due to legislative inadvertence, on the one hand or, on the other, to a deliberate choice, in the imposition of absolute liability, to differentiate between easily determinable bodily injury or death and loss or damage to property, which might involve a bundle of various rights. For a full discussion of this cannon [sic] of statutory construction, see Erlenbaugh v. United States, 409 U.S. 239, [93 S.Ct. 477, 34 L.Ed.2d 446], 41 L.W. 4081, decided December 12, 1972. In view of the conclusion of the Court that plaintiff was entitled to maintain a direct action on the policy in suit, further discussion of the interplay of Sections 11 and 12 would be purely academic.”

(App.23.)

T?or the reason stated by the district court in the last sentence, supra, we could forego deciding the question now under consideration. We are persuaded otherwise by two considerations: (1) As hereafter developed Fleming’s right to maintain a direct action under the terms of the policy itself is not entirely free from doubt; and (2) we disagree with the district court’s positive conclusion of law, heretofore quoted, and our failure to indicate our disagreement might tend to confuse litigants as to our conception of the jurisprudence until such time as the Supreme Court of Alabama has occasion authoritatively to construe the statutes involved.

Preliminarily, we note that the present diversity action was brought in a federal district court located in Alabama, so that we must look to Alabama law, including Alabama’s law of conflicts, in deciding the nonfederal issues in this case. Klaxon Co. v. Stentor Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L. Ed. 1477.

In light of Klaxon, the applicability and construction of section 12, either alone or in connection with section 11, must be determined in accordance with the law of Alabama. In Macey v. Crum, 1947, 249 Ala. 249, 30 So. 2d 666, the Supreme Court of Alabama held that at least as to a policy insuring the named insured against liability, as distinguished from indemnity against loss, sections 11 and 12 applied without regard to whether the insurance contract was made in Alabama or not, and without regard to whether the named parties to the contract of insurance were residents or nonresidents of Alabama. The Alabama Supreme Court held that, “The lex loci controls the validity and construction of the contract but the lex fori operates on the remedy to enforce it.” 30 So.2d at p. 669.

The opinion in that case is highly instructive as to the nature of the remedy provided by sections 11 ánd 12.

“This court has held that said § 12 and § 11, preceding, when construed together, are more than procedural in character and give the injured party a vested interest (secondary) by way of hypothecation in the amount due the insured by the insurer after the rendition of the judgment against the insured. George v. Employers’ Liability Assur. Corporation, 219 Ala. 307, 122 So. 175, 72 A.L.R. 1438; Lorando v. Gethro, 228 Mass. 181, 117 N.E. 185, 1 A.L.R. 1374, 1378.
***** *
“ * * * the procedure provided in § 12 impairs no contractual obligation and affects no substantive right under the contract of insurance pleaded. It merely provides a remedy for enforcing the agreement of the insurer to pay the damages contracted by the policy to be paid. The statute is a replica of the Massachusetts statute and, following the customary canon of construction, we have adopted the interpretation accorded the statute by the Massachusetts Supreme Court. Globe Indemnity Co. v. Martin, 214 Ala. 646, 108 So. 761; George v. Employers’ Liability Assur. Corporation, supra; Continental Auto Ins. Underwriters v. Menuskin, 222 Ala. 370, 132 So. 883. The Massachusetts court observed in Lorando v. Gethro, supra, that the statute ‘does not enlarge or modify in any respect the substantial liability created by the contract of insurance. It merely enables the person suffering the initial damages, out of which grows the loss to the insured, to acquire a lien against the loss and the right to damages or indemnity arising under the policy, and to enforce it in his own name.’ 228 Mass, at page 187, 117 N.E. at page 188, 1 A.L.R. 1378.
“The equitable remedy thus afforded to collect the judgment debt partakes of the nature of an equitable garnishment, whereby the judgment creditor may collect his judgment from one who owes the judgment debtor and has agreed to pay the liability imposed by the judgment. The authorities are general that one who recovers a judgment for damages may garnish the judgment defendant’s claim on a policy or agreement insuring him against liability (as distinguished from indemnity against loss) for damages of the kind recovered against him by the plaintiff * * *_>> ,

30 So.2d 667, 668.

The remedy provided by section 12 can be exercised only after the injured or damaged party has recovered final judgment against the insured, and only “if the defendant in such action was insured against said loss or damage at the time when the right of action arose.” (Emphasis added.) Clearly, “right of action,” as there used, refers to the right of action against the named insured instead of that against the insurer. It also seems clear that either in connection with section 11, or alone, section 12 gives rise to a lien or vested interest on the part of the damaged or injured person by way of hypothecation in the amount due the insured under the terms of the policy. Fleming having acquired such a lien or vested interest, the insurer could not defeat his right of action by its settlement with the named insured. That much follows from the teachings of Macey v. Crum, supra, and is borne out by the interpretation accorded the replica of the Alabama statutes by the Massachusetts Supreme Court in Lorando v. Gethro, 1917, 228 Mass. 181, 117 N.E. 185, 1 A.L.R. 1374.

Notwithstanding the amendment of section 12 to include judgments “for loss or damage to property” and the failure to similarly amend section 11, we think that section 12 must be construed and applied in the light of section 11. It would be anomalous if section 12 provided a different remedy in the case of a judgment for loss or damage to property from that provided in the case of a judgment for loss or damage on account of bodily injury or death. In both cases, the two sections should be construed together. The construction adopted by the district court almost emasculates the statute in the case of a judgment for loss or damage to property. Its construction limits the effect of the statute so that it merely adds a right to proceed in equity to the then existing right to proceed at lavj by issuing a writ of garnishment to collect the judgment against the named insured. The right to collect by garnishment at law exists independently of sections 11 and 12. See Macey v. Crum, supra, and the many cases cited at 30 So.2d 668. See also Royal Indemnity Co. v. Pearson, 1971, 287 Ala. 1, 246 So.2d 652, 654, and the cases there cited.

Even if section 12 stood alone, it would require a construction which would reach practically the same result as if it were construed with section 11. Indeed, that is the most likely explanation of the failure of the Alabama Legislature to amend section 11 so as to expressly require its application to include judgments “for loss or damage to property.” Standing alone, section 12 provides:

“* * * if the defendant in such action was insured against said loss or damage at the time when the right of action arose, the judgment creditor shall be entitled to have the insurance money provided for in the contract of insurance between the insurance company and the defendant, applied to the satisfaction of the judgment * * * ”

Thus the right of the judgment creditor relates back to the time when his right of action arose but his right is, of course, limited to “the insurance money provided for in the contract of insurance.” Grounds of defense which would be open to an insurer in an action brought by the named insured, would be open to the insurer in a section 12 proceeding in equity brought by the judgment creditor. On the other hand, grounds of defense sought to be created by the insurer subsequent to the accident and loss would not be available in a section 12 proceeding in equity.

We hold that Fleming had a direct claim against Pan Am based on section 12 of Title 28 of the Alabama Code.

II.

We agree with the district court that Fleming had become a third-party beneficiary under the terms of the policy itself. That was the theory supported by Alabama cases which this Court had followed in Pennsylvania Thresherman & F. Mut. Cas. Co. v. Crapet, 1952, 199 F. 2d 850, 853, 854:

“The policy of insurance itself provides that any person who has secured a judgment against the insured, liability for which is insured against, ‘shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy.’ It seems clear to us that under the contract a like jurisdiction is conferred upon a court of law as is vested in a court of equity by the statute. See American Fidelity & Casualty Co. v. Werfel, 230 Ala. 552, 162 So. 103, 106; Employers Insurance Co. of Alabama v. Johnston, 238 Ala. 26, 189 So. 58; Macey v. Crum, 249 Ala. 249, 30 So.2d 666; Continental Auto Ins. Underwriters v. Menuskin, 222 Ala. 370, 132 So. 883; Hughes v. Hartford Accident & Indemnity Co., 223 Ala. 59, 134 So. 461. This Court, therefore, has no authority to review the question of whether the jury’s verdict is contrary to the weight of the evidence.”

Relying upon the Pennsylvania Thresherman case, supra, and the Alabama decisions supporting that case, the district court held that the following clauses in Endorsement Form 102-C of the insurance policy afforded Fleming a direct claim against Pan Am as a third-party beneficiary:

“This policy covers the legal liability of the named insured for the loss, of and damage or injury to, property of any character or description while in the possession and/or custody, actual or constructive, of the insured: and a description of the motor vehicles (trucks and/or trailers), terminals, warehouses or other facilities operated or used under or in connection with the permit or certificate is hereby waived regardless of the cause of such loss, damage or injury, excepting however, those causes which are excepted by the common law in- favor of a common carrier’s absolute liability, even though the vehicles (trucks and/or trailers), warehouses or terminals or other places of receiving and delivering may not be specifically identified herein.
******
“It is also understood, anything in the policy to the contrary notwithstanding that the insurer herein Will pay within limits expressed in this endorsement, unless greater limits are specified in the policy or endorsement attached thereto in which event the greater limits shall apply, all damage which may be recovered against the insured, based on the claims for loss of or damage to property during the term of the policy arising out of the actual operation of such motor freight vehicle (truck and/or trailers) or while such property is in the actual or constructive possession and/or custody of the insured without regard to the solvency or insolvency of the insured, and this policy shall not be exhausted by one recovery bút sueessive [sic] recoveries may be had hereunder, and the payment of a claim does not reduce the amount of insurance by the sum so paid.
* * # * * *
“No defense which is available to the insurer as against the insured under the provision^ of this policy as originally written shall be available to the insurer as against a judgment creditor of the said insured after judgment shall have been rendered against such insured upon any claim for loss of or damage to property growing out of the actual operation of the motor freight vehicle (truck and/or trailers), of the insured or while such property is in the actual or constructive possession and/or custody of the insured, or whether or not, the basic authority granted in the certificate or permit shall have been violated.” (R.p. 13.)

Pan Am claims that the district court ignored the two paragraphs of the endorsement which preceded the quoted paragraphs, viz.:

“It is understood that the policy to which this endorsement is attached is to be offered for filing by the named insured with the Railroad Commission of Texas as a condition precedent to the privilege to operate as a motor carrier within the State of Texas under the authority of a certificate of convenience and necessity or a permit heretofore issued, or which may hereafter be issued and in compliance with the provisions of Chapter 314, General Laws of the Forty First Legislature of Texas, 1929, and amendments thereto and all rules and regulations promulgates [sic] of hereafter promulgated thereunder by the Railroad Commission of Texas, and this endorsement is attached for the purpose of making the provisions of the policy conform to the requirements of the law.
“Coverage hereunder applies to all motor freight vehicles (trucks and/or trailers) belonging to or operated by, or under the direction, or in the ‘for hire’ transportation business of the insured whether particularly identified in this policy or not while the same are being used by the insured in the insured’s business of carrying or transporting property for hire or compensation, and coming within the terms of the motor carrier law.” (R. p. 13.)

Both parties agree that the Texas motor carrier law is applicable only within the territorial limits of Texas. Pan Am argues that the two paragraphs last quoted show that coverage under Endorsement 102-C would apply only to situations where Texas law requires some such endorsement. The case of Alphonse v. W. M. Kinner Transport Co., 5 Cir. 1971, 452 F.2d 700, 703, discloses Texas Railroad Commission Motor Vehicle Endorsement Form 77 which contains a definite limitation that, “the obligations and promises of this endorsement shall be effective only while the automobiles covered by this policy are being operated within the boundaries of the State of Texas.” While the endorsement on the policy here involved shows that it “is attached for the purpose of making the provisions of the policy conform to the requirements of law,” there is no explicit statement in the endorsement that its coverage would not extend to an accident such as the one involved in this case, which was well within the 1000 mile radius marking the territorial coverage of the policy (see n. 7, supra). To say the least, the endorsement here involved was ambiguous. Under the law of Texas (where the contract of insurance was made), the endorsement must be interpreted strictly against the insurer and liberally in favor of the insured. Commercial Standard Ins. Co. v. McKissack, Tex.Civ.App.1941, 153 S.W.2d 997, 1000, 1001. So construed, the endorsement covered the insured’s operation within the permissible 1000 mile radius even though outside the State of Texas. We hold that, under the terms of the policy including this endorsement, Fleming had become a third-party beneficiary with a direct claim against Pan Am.

The judgment of the district court is Affirmed.

      . “§ 12. Remedy of injured party after recovering judgment.- — -Upon the recovery of a final judgment against any person, firm, or corporation by any person including administrators or executors, for loss or damage on account of bodily injury or death, or for loss or damage to property, if the defendant in such action was insured against said loss or damage at the ■time when the right of action arose, the judgment creditor shall be entitled to have the insurance money provided for in the contract of insurance between the insurance company and the defendant, applied to the satisfaction of the judgment, and if the judgment is not satisfied within thirty days after the date when it is rendered, the judgment creditor may proceed in equity against the defendant and the insurance company to reach and apply the insurance money to the satisfaction of the judgment.”

      . “§ 11. Liability of insurance companies on casualty risks; when absolute. — In respect to every contract of insurance made between an insurance company and any person, firm or corporation, .by which such person, firm or corporation is insured against loss or damage on account of the bodily injury or death by accident of any person, for which loss or damage such person, firm or corporation is responsible, whenever a loss occurs on account of a casualty covered by such contract of insurance, the liability of the insurance company shall become absolute, and the payment of said loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss, or damage, or death, occasioned by said casualty. No such contract of insurance shall be can-celled or annulled by any agreement between the insurance company and the assured after the assured has become responsible for such loss or damage, and any such cancellation or annulment shall be void.”
      The two sections as amended effective January 1, 1972, now appear as Title 28A, §§ 484 and 485.

      . In stating the facts, we accept as true the findings of the district court. See Rule 52 (a), F.R.Civ.P.

      . The record does not explain why this Bank joined in executing the proof and was made joint payee in the draft.

      . Quoted in n. 1, supra.

      . Quoted in n. 2, supra.

      . We recognize that any such doubt is, at least for the present, removed by this Court’s decision, subject to review on rehearing either by the panel or by an en banc court. There is little chance of the Supreme Court’s granting certiorari in a diversity case like this. In the event of a reversal of our decision that Fleming became a third-party beneficiary under the terms of the policy itself, consideration might be given to ' proceeding under the authority of the Judicial Article, adopted in December 1973 as an amendment to the Alabama Constitution, for an authoritative construction by the Supreme Court of Alabama of the statutes here involved. See recent discussion of this certification procedure in Lehman Brothers v. Schein, 1974,-U.S.-, 94 S.Ot. 1741, 40 L.Ed.2d 215 at footnotes 5, 6, 7 and 8 and related text.

      . The basic policy involved in this case covered the legal liability (R. pp. 12 and 13) of Hazelwood for loss or damage to shipments of livestock, including loss due to collision of the vehicle and loss due to fire, within a radius of 1000 miles of Wichita Falls, Texas. The place in Alabama where the accident occurred and the cattle were killed or fatally injured lies well within such a radius.

      . Such, for example, as failure or refusal to cooperate in the investigation or defense of the claim as provided in the policy.

      . Such, for example, as accord and satisfaction with the named insured with or without formal release, cancellation of the policy of insurance, etc.


author: GODBOLD, Circuit Judge:

text:
    Harold P. KNIGHT, as Assignee of National Bank of Commerce, Plaintiff-Appellee, v. Edward C. WIROTZIOUS, Defendant-Appellant.
    No. 73-2930.
    United States Court of Appeals, Fifth Circuit.
    June 10, 1974.
    John P. Carlton, Donald B. Sweeney, Jr., Birmingham, Ala., for defendant-appellant.
    Manuel Levine, Birmingham, Ala., for plaintiff-appellee.
    Before BROWN, Chief Judge, and GODBOLD and RONEY, Circuit Judges.
   GODBOLD, Circuit Judge:

Knight sued Wirotzious claiming contribution for having paid their joint and several obligation owed to the National Bank of Commerce. Wirotzious filed a counterclaim seeking contribution from Knight for discharge by Wirotzious of a debt of Saltzman Machine & Fabricating Company that had been guaranteed by the two of them. After a non jury trial the District Court found in favor of Knight on both his claim and the counterclaim.

1. Knight’s claim.

The only issue with respect to the claim is whether the court erred in awarding attorney fees to Knight. The obligation to National Bank of Commerce was in the form of several renewal notes, all of which except the last were executed by Knight and Wirotzious as co-makers. The last renewal note showed Wirotzious as maker and Knight as endorser. The District Court found that the obligation under all the notes was joint and several, that Knight had paid the note which was then assigned to him by the bank, and that Knight was entitled to contribution in the amount of one-half thereof. Also it held that Knight was entitled to a reasonable attorney’s fee, citing Somerall v. Citizens’ Bank, 211 Ala. 630, 101 So. 429 (1924). We agree with Wirotzious that an attorney’s fee was not proper. Knight’s claim arose out of his right of contribution as a joint obligor who had discharged the debt in full and was based upon the implied promise of his fellow obligor to pay his just share. Knight’s right to recover was not predicated upon the note as an evidence of the indebtedness. Yet Knight, given no right to fees by statute or by the law of contribution, relies upon the boilerplate attorney’s fee provision of the notes. We are referred to no authority permitting this, and we find none. Somerall, cited by the District Court, refers to the right of a holder of a note, in a second trial of a suit against an endorser, to recover its attorney fees incurred in an appeal from the first trial. More apposite are cases holding that one who has discharged a note and sues for contribution is entitled to the legal rate of interest and not to the rate provided by the note.

2. Wirotzious’s counterclaim.

Saltzman Machine had a continuing line of credit with City National Bank induced by separate and identical guaranty agreements executed by Knight, Wirotzious and Frank Saltzman. February 28, 1968, City National wrote jointly to Knight and Wirotzious stating that Saltzman Machine had an accounts receivable loan of $38,122.00 which should'be paid in 30 days, and an open note for $11,660.40 which was being reduced $2,000 every 90 days, and “Upon payment of these two notes, we will cancel your blanket guarantee.” Some 15 months later, May 12, 1969, the bank’s liability ledger sheet on Saltzman Machine showed that a balance of $10,101.-32, plus interest, was paid. The payment consisted of Wirotzious’s delivering to the bank his personal note for the balance plus interest and premium for credit life insurance on his life.

Wirotzious’s position is that both his and Knight’s separate guaranties remained .in effect and he, having paid the debt, is entitled to contribution from Knight as co-guarantor. The District Court found that Knight’s guaranty was cancelled because the conditions set out in the letter of February 28 were met. Knight’s argument on appeal is that the court was correct and that in fact both guaranties were cancelled.

Wirotzious contends that Knight’s guaranty could not be terminated by the conditions of the February 28 letter being met, because the terms of the guaranty itself provided for termination only upon written notice given by the guarantor and acknowledged by the bank (which termination would not apply to obligations already incurred by the debtor). We agree with the District Court that the benefit of the guaranties could be waived or surrendered by the bank without regard to the means prescribed for cancellation by a guarantor. Arguably the bank might not be able to surrender the benefit of one guaranty to the detriment of the other guarantor who, subsequently becoming obligated to pay, might have been deprived of his right to contribution. This question we need not explore, because we think that the joint letter to Knight and Wirotzious surrendered the bank’s rights against both guarantors upon performance of the recited conditions.

The District Court found that the conditions were met. The bank maintained a single ledger sheet showing loans, advances and payments for the account of Saltzman Machine, and the balance thereon on February 28 was $49,772.47, the total of the two notes referred to in the letter of that date. Between May 1, 1968 and July 30, 1968 Saltzman Machine paid the bank more than $50,000. Meanwhile, however, the bank had made other advances to Saltzman Machine, represented by new notes. The court found that the payments totalling $50,000 were under Alabama law properly applied to the charges on the bank’s ledger sheet in the order in which the charges accrued, citing Mayer Bros. v. Gewin, 200 Ala. 391, 76 So. 307 (1917), with the result that the notes referred to in the February 28 letter had been paid and, the conditions of the letter having been met, Knight’s guaranty was at an end. We are not able to say that this conclusion is wrong.

Affirmed in part and reversed and remanded in part. Each party shall bear his own costs.

      . Dileo v. Dileo, 217 La. 103, 46 So.2d 53, 57 (1950), (where four co-tenants joined in making notes to town in order to satisfy paving lien assessment and later two of them purchased the notes from town, the two purchasers are entitled to pro-rata reimbursement from the other two co-makers ; but purchasers are not entitled to attorney’s fees or to the interest rate established by the notes, since their suit was not on the notes but for reimbursement); Wettlaufer v. Ames, 133 Mich. 201, 94 N.W. 950 (1903); Appleford v. Snake River Min., Mill. & Smelting Co., 122 Wash. 11, 210 P. 26 (1922); Bushnell v. Bushnell, 77 Wis. 435, 46 N.W. 442 (1890). See also Gordon v. McLemore, 237 Ala. 270, 186 So. 470 (1939) (cotenant claiming from other cotenants contribution of a pro rata share of taxes paid on land not entitled to an attorney’s fee).

      . Wirotzious has since paid the note in full.

      . So that Wirotzious paid Saltzman Machine’s debt to the bank when he was not obligated to do so.

      . The parties attach no significance and we do not to the difference of $10.07 in the ledger figures and the figures in the letter.

      . And presumably Wirotzious’s also, though the court did not refer to that question.

      . The bank officer who calculated the amount to be discharged by Wirotzious’s executing his own note testified that she considered the principal amount to be the aggregate of unpaid balances on the two notes described in the February 28 letter. Wirot-zious himself testified, however, that the accounts receivable note was paid off with Saltzman Machine funds.


author: TUTTLE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Frank AMATO, Samuel Salvatore Bru-nello, Donald Lambert, aka Louis Lamberti, Defendants-Appellants.
    No. 73-2069.
    United States Court of Appeals, Fifth Circuit.
    June 7, 1974.
    Rehearing and Rehearing En Banc Denied July 12, 1974.

      Harvey I. Silverman, Hallandale, Fla. (Court-appointed), for Lambert.
    Arthur W. Tifford, Miami, Fla. (Court-appointed), for Amato.
    Neale J. Poller, Miami Beach, Fla. (Court-appointed), for Brunello.
    Robert W. Rust, U. S. Atty., Miami, Fla., Marshall Tamor Golding, Atty., Dept, of Justice, Washington, D. C., for plaintiff-appellee.

      Before BROWN, Chief Judge, and TUTTLE and SIMPSON, Circuit Judges.
   TUTTLE, Circuit Judge:

Defendants-appellants, Amato, Lambert, and Brunello, were convicted by a jury under the Hobbs Act, 18 U.S.C.A. § 1951 for conspiring to obstruct interstate commerce by extortion achieved by physical violence and threats of violence. On appeal appellants allege numerous errors by the district court. However, we find meritorious only the claim of insufficiency of evidence.

Appellants were indicted with five other co-defendants. The indictment charged a conspiracy continuing over a period of one year, November 1, 1970 through November 1, 1971, to extort money, goods, and services from Sheldon, Frederick, and Selma Arthur and a family corporation, “Oliver’s,” which was a restaurant and cocktail lounge. The government alleged that the evidence demonstrated that the defendants first induced fear in the Arthurs by threatened and actual violence, and then attempted to obtain money and employment for themselves and others at Oliver’s. While unsuccessful, the government argues that the defendants did obtain food, drink, and services without payment. Three of the eight co-defendants were granted judgments of acquittal by thé district court. Two were found innocent by the jury. Appellants, Amato, Lambert, and Brunello, were found guilty.

The Hobbs Act applies to one who “. . . affects commerce or the movement of any article or commodity in commerce, by . extortion or attempts or conspire so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section . . . . ” Appellants assert, individually, that there was insufficient proof on the elements necessary for conviction, specifically: (1) Failure to show an effect on interstate commerce; (2) Failure to prove formation of a conspiracy; (3) Failure to demonstrate each appellant’s intent to join the conspiracy; (4) Failure to prove a reasonable fear on the part of the victims.

INTERSTATE COMMERCE

The essence of appellants’ interstate commerce argument is that the government’s proof only discloses intrastate sales by wholesale liquor and meat suppliers, who purchased their goods from out-of-state, to Oliver’s. Appellants contend that the flow of the interstate goods stopped with the supplier, therefore, the interruption eliminates the interstate nature and effect of any intrastate sale between Oliver’s and the supplier’s. Secondarily, appellants state that there is no evidence that the flow of goods to the supplier ceased or slowed down, affecting commerce, as a result of the conspiracy.

This Court described the manner in which the interstate commerce requirement of the Hobbs Act had to be satisfied in United States v. Nakaladski, 481 F.2d 289, 298-299 (5th Cir. 1973):

“. . . Under the Hobbs Act it is not necessary that the subject of the extortion constitute interstate commerce, or that the purpose of the extortion be to affect interstate commerce. All that is required is that trade be affected by extortion ‘in any way or degree,’ Carbo v. United States, 9 Cir. 1963, 314 F.2d 718, 732; see United States v. Addonizio, supra, 451 F.2d [49] at 77, and that the victim have been induced to part with property through the use of fear.” Id. at 298.

It is clear that:

“The impact of extortion need affect interstate commerce only in a minimal degree, United States v. Hyde, 5 Cir., 1971, 448 F.2d 815, cert. denied, 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745.” United States v. Nadaline, 471 F.2d 340, 343 (5th Cir. 1973).

At trial the government called two witnesses who testified that their employers, one a liquor, the other a meat supplier, purchased their products from out-of-state sources. The government then offered documentary proof, i. e., invoices, that Oliver’s purchased liquor and meat products from these suppliers. Finally, the government demonstrated that Oliver’s was closed for a month because of the action and coercion of the conspirators. From these facts, the court and the jury could reasonably infer an effect on interstate commerce.

The intermediate stop of the goods shipped interstate with the middle man supplier before receipt by Oliver’s, does not make the effect on interstate commerce too attenuated. United States v. Pranno, 385 F.2d 387, 389 (7th Cir. 1967); Battaglia v. United States, 383 F.2d 303, 305 (9th Cir. 1967). Likewise, the evidence of the closing of Oliver’s as a consequence of the conspiracy furnishes sufficient inferences of the reduction of sales from suppliers who purchased out-of-state products. United States v. DeMasi, 445 F.2d 251, 257 (2,d Cir. 1971); United States v. Pranno, supra, 385 F.2d at 389.

APPELLANT BRUNELLO

While inadequate proof of the effect on interstate commerce would have invalidated all convictions, the alleged insufficiency of proof on the other elements of the conspiracy charge have had to be examined individually, as to each appellant. Having carefully reviewed the record we reverse the conviction of appellant Brunello, and affirm the convictions of appellants Amato and Lambert.

Brunello moved for a judgment of acquittal at several points within the trial and at the close of evidence. In addition, he filed a motion notwithstanding the verdict pursuant to Fed.R.Crim. P. 29(c). The district court denied these motions. This Court' has stated most recently in United States v. Jeffords, 491 F.2d 90 (5th Cir. 1974):

“The test in a criminal case to determine whether there is sufficient evidence to submit the case to the jury is:
“On a motion for judgment of acquittal, the test is whether, taking the view most favorable to the Government, a reasonably-minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt. Sanders v. United States, 5 Cir., 1969, 416 F.2d 194, 196; Jones v. United States, 5 Cir., 1968, 391 F.2d 273, 274; Weaver v. United States, 5 Cir., 1967, 374 F.2d 878, 881.
“United States v. Warner, 5 Cir. 1971, 441 F.2d 821, 825, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). See also Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941); United States v. Stephenson, 5 Cir., 1973, 474 F.2d 1353.” Id. at 91.

The government’s case against Brunel-lo is grounded on his involvement with one of the other appellants, Amato, and the Arthurs in two incidents occurring on one night, May 28, during the one year conspiracy. The first incident was Brunello’s participation in an altercation at Oliver’s. He was accompanying appellant Amato, who began the fight. Although the testimony is conflicting on whether Brunello was aggressively aiding Amato or attempting to separate the participants and terminate the fracas, we must take the view most favorable to the government — that Brunello was an active aggressor. During the scuffle, Selma Arthur testified that Brunello warned her that if the police were called that next time both her sons would be killed. For that reason she later testified that she told the police that Brunel-lo was not one of the perpetrators of the altercation. Later that evening, Selma Arthur followed Amato and Brunello to the Gold Doubloon, a neighboring cocktail lounge, to plead that no further injuries be inflicted on her sons. Sheldon Arthur then appeared. He had an automatic hand gun in the waist band of his trousers. Brunello yoked Sheldon around the neck, grabbed the pistol from him, and threatened him. At the request of Amato, Brunello then gave the pistol to Selma Arthur, and the Arthurs left.

No formal agreement is ñecessary to establish a conspiracy, whose existence often is proved by inferences from the actions of the actors or circumstantial evidence of a scheme. United States v. Nadaline, supra, 471 F.2d at 344; United States v. Anderson, 352 F.. 2d 500 (6th Cir. 1965). The question arises, however, whether this single night’s involvement is sufficient to prove Brunello’s intent to join, or knowledge of, the conspiracy. The proof on conspiracy charges, in general, requires:

“In order to establish a person as a participant in a conspiracy, the evidence must show that the accused intended to join and cooperate in the illegal venture. Knowledge that a conspiracy exists is a minimum requirement for establishing the requisite intent. ‘Furthermore, to establish the intent, the evidence of knowledge must be clear, not equivocal.’ Direct Sales Co. v. United States, 319 U.S. 703, 711, 63 S.Ct. 1265, 1269, 87 L.Ed. 1674. See Daily v. United States, 9 Cir., 282 F.2d 818, 821-822. Association with an alleged co-conspirator may raise a strong suspicion of knowledge and intent, but this is not the only reasonable inference which may be drawn from such conduct.” Miller v. United States, 382 F.2d 583, 587 (9th Cir. 1967).

Selma Arthur testified that she had never seen Brunello before or after May 28th. There was no other evidence even portraying Brunello as an associate or close companion of the other conspirators. Both Selma and Fred Arthur testified that Brunello had never solicited free liquor or food, or sought credit, money or employment. In fact, the government has not shown that Brunello had any interest at all in the outcome of the conspiracy. United States v. Noah, 475 F.2d 688, 697 (9th Cir. 1973). Although any violence perpetrated by Brunello cannot be condoned and is reprehensible, the record is devoid of any element of intent to join in an extortion conspiracy in violation of the Hobbs Act. See United States v. Nedley, 255 F.2d 350, 357-358 (3rd Cir. 1958). In sum, we find that as a matter of law the evidence against Brunello on the issue of intent to join, or even knowledge of, the conspiracy was insufficient to submit the case to the jury.

The Judgments of Conviction of Ama-to and Lambert are affirmed.

The Judgment of Conviction and sentence of Brunello is reversed and the case is remanded to the trial court for the entry of a Judgment of Acquittal as to him.

      . This provision provides :
      “(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.
      “ (b) As used in this section—
      “(2) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.
      “(3) The term ‘commerce’ means commerce within the. District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.”

      . Among other errors urged were: (a) Denial of a fair trial by the conduct and hysterics of two prosecution witnesses; (b) Denial of motions for severance; (c) Admission of declarations by co-conspirators contrary to United States v. Puco, 476 F.2d 1099 (2d Cir. 1973), cert. denied, 414 U.S. 844, 94 S. Ct. 1067, 38 L.Ed.2d 82 (1973); (d) The jury instructions on intent; (e) Denial of cross-examination; (f) Designation of an improper time period for the conspiracy in the indictment; and (g) Discriminatory selection of grand and petit juries.

      . See the text of the Hobbs Act, 18 U.S.C.A. § 1951, quoted in note 1, supra.

      . See note 5, infra.

      . Two of the factors causing the closing of Oliver’s were the destruction of the furnishings and the beating of Frederick Arthur allegedly inflicted by defendant Peter Allen and two unidentified men on September 28, 1971. However, defendant Allen was granted an acquittal by the court because of the government’s failure to comply with the Jencks Act. Because of the acquittal, there might be some question of the competence of this evidence to support a conclusion of an effect on interstate commerce if it were the sole cause of the closing of Oliver’s. However, the evidence revealing that Sheldon Arthur felt compelled to ask Lambert and Amato for permission to reopen Oliver’s was sufficient for the jury to infer that other factors, in addition to defendant Peter Allen’s alleged actions, forced the closing of Oliver’s.

      . In DeMasi, the court stated:
      “With reference to the argument that the Government failed to prove an effect on interstate commerce, we note only that the Club purchased its meat in Connecticut and its liquor both nationally and internationally, and that when the Club closed these deliveries were stopped. The requisite effect was proven.” Id.

      . See Roberts v. United States, 416 F.2d 1216, 1221 (5th Cir. 1969) (“In sum, we are left with an abiding conviction that the jury’s verdict of guilty as to Bookout is based upon suspicion and surmise only. She associated with the wrong people and was convicted because of guilt by association only.”); Wood v. United States, 283 F.2d 4, 6 (5th Cir. 1960) (“This record demonstrates that these appellants spent much of their time during the period of the alleged conspiracy in company with proven bootleggers. This fact, coupled with their game of ‘cops and robbers’ in and around the area in which several stills were later found creates a strong suspicion that they had more than a passing interest in the stills and their product. Mere suspicion is, of course, not sufficient to warrant the submission of a criminal case to a jury.”).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Walker GUPTON, Jr., Defendant-Appellant.
    No. 73-3726
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 10, 1974.

      Timothy A. Johnson, Jr., Clearwater, Fla. (Court-appointed), for defendant-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa,' Fla., for plaintiff-ap-pellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   GODBOLD, Circuit Judge:

Appellant was indicted under 18 U.S. C. § 1951 for threatening physical violence to the property of an airline in furtherance of a plan to obstruct interstate commerce by extortion. Convicted and sentenced to the statutory maximum of 20 years, appellant appeals, alleging insufficient evidence and variance between the indictment and the proof. Because in this case the two issues merge, we treat them as one, and we affirm.

The indictment charges the appellant with “threaten [ing] physical violence . in furtherance of a plan to obstruct . . . commerce by extortion .” To attack his conviction he sets up the following logical construct: (A.) under the particular variant of the § 1951(a) crime charged, an indispensable element of the offense is a plan to obstruct commerce by extortion; (B.) the government’s proof went to something else, to wit, a plan to make money; (C.) therefore there was a variance and insufficient evidence. The validity of appellant’s construct depends upon an implied but unstated term. Since that term is wrong, the construct falls.

The unstated term is that the “plan to make money” proved by the government is something other than a plan to obstruct commerce by extortion. That proposition in turn rests upon the notion that a specific intent to obstruct commerce is a necessary element of a § 1951(a) plan. That is not the case. It is settled law that to prove a crime under the first clause of § 1951(a), the government need not show that the accused set out with the specific conscious purpose or desire to obstruct commerce. United States v. Addonizio, 451 F.2d 49, 77 (CA3, 1972). We hold that a plan to obstruct by extortion, which the government must prove as a necessary element of a crime under the fourth clause of § 1951(a), need only be shown to be a plan to embark upon a course of extortionate behavior likely to have the natural effect of obstructing commerce. Since the government in the present case has amply proved such a plan, the conviction appealed from is

Affirmed.

      . The indictment charged him with saying: “Are you the manager? AVe want $200,-000. "Will call back in one hour from this minute. If we don’t get this money, your airplane will be blown out of the sky. If you don’t pay it, the next time it will be a million.”

      . “AYhoever . . . obstructs . . . commerce ... by ... extortion . . . shall be fined ... or imprisoned ... or both.” lant had “mentioned something about wanting to go in on calling an airline and making a bomb threat.” Later, according to Size-more, appellant had specifically said “[t]hat he was going to call the airlines and make the threat.” Appellant went into some detail about what was to be done and Sizemore became convinced that appellant “was going to go through with it.” Sizemore went to the police, and when appellant’s plan eventuated in a telephoned threat, the police were waiting.

      . AYitness Sizemore, a friend and business associate of appellant, testified that appel-


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. Michael ALEXANDER, Appellant.
    No. 926, Docket 73-2041.
    United States Court of Appeals, Second Circuit.
    Submitted March 29, 1974.
    Decided April 9, 1974.
    John T. Elfvin, U. S. Atty. W. D. N. Y., Buffalo, N. Y. (David G. Larimer, Asst. U. S. Atty., of counsel), for appel-lee.
    John J. LaDuca, Rochester, N. Y., (LaDuca, Offen & LeChase, Rochester, N. Y., of counsel), for appellant.
    Before KAUFMAN, Chief Judge, and SMITH and ANDERSON, Circuit Judges.
   PER CURIAM:

Alexander appeals from his conviction for distributing heroin in violation of 21 U.S.C. § 841(a)(1), after a trial before Judge Burke and a jury. In addition to time already served, Alexander was also sentenced to a three-year special parole term.

Alexander’s principal claim on appeal is that the trial court erred in refusing to compel the government to disclose the identity of an informant' known to the defense only as “Randy.” Randy’s testimony, Alexander urges, would substantially have bolstered his claim of entrapment. We find no merit to this contention and, accordingly, affirm the conviction.

On September 26, 1972, Alexander was approached at his home in Rochester by Randy, who introduced him to David A. Lucier, an undercover agent with the Bureau of Narcotics and Dangerous Drugs. At trial, Alexander admitted that in reply to Lucier’s request for drugs, he responded that he could obtain some in ten or fifteen minutes. Although no drugs were transferred at this intitial encounter, at a second episode later the same day Alexander’s friend Johnny Lee Fulton sold heroin to Lucier. Alexander’s testimony indicated that he played a pivotal role in the actual sale by leading Lucier to Fulton and arranging the sale of “half a bundle” of heroin for $85.

Quite simply, Alexander has been hoist with his own petard." Even had Randy been available and fully supported Alexander's account of the day’s events, the appellant’s own damning admissions adequately demonstrated his independent willingness to facilitate a drug sale. This evidence of a predisposition to commit the crime charged was sufficient to demolish Alexander’s contention that he was entrapped. See, e. g. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). Accordingly, since disclosure of an informant’s identity is required only when necessary for a fair disposition of the case, Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), we do not believe that Judge Burke’s ruling was an abuse of discretion in this instance. See United States v. Simonet-ti, 326 F.2d 614 (2d Cir. 1964).

      . Alexander was sentenced on June 25, 1973. He had been in custody since November 8, 1972.


author: SIMPSON, Circuit Judge:

text:
    Jack Roland MURPHY, Petitioner-Appellant, v. STATE OF FLORIDA, Respondent-Appellee.
    No. 73-3528.
    United States Court of Appeals, Fifth Circuit.
    June 10, 1974.
    Rehearing and Rehearing En Banc Denied July 12, 1974.

      Harvey S. Swickle, Miami Beach, Fla., for petitioner-appellant.
    J. Robert Olian, Asst. Atty. Gen., Miami, Fla., Robert L. Shevin, Atty. Gen., Tallahassee, Fla., William L. Rogers, Asst. Atty. Gen., Miami, Fla., for respondent-appellee.
    Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

The lower court, by a reported opinion, Murphy v. State of Florida, S.D. Fla.1973, 363 F.Supp. 1224, denied appellant’s petition for habeas corpus relief from two state sentences received in a single trial, to life imprisonment for armed robbery and consecutively to twenty years imprisonment for assault with intent to commit robbery. We affirm.

The attack upon the state convictions both in the trial court and here is based primarily ¿upon a claim of denial of Fourteenth Amendment due process because of extensive pre-trial newspaper publicity regarding Murphy, known as “Murph the Surf”, and resultant prejudice to his Sixth Amendment right to a trial before an impartial jury. Inasmuch as the background facts are fully set forth in the lower court’s opinion, a brief outline of them will suffice here.

The issues here as below are (1) whether the Florida state trial court erred in denying appellant a change of venue in the light of the pre-trial publicity; (2) whether that court erred in failing to dismiss for cause those trial jurors who knew Murphy was a convicted felon; and (3) whether that court erred in refusing to bifurcate the trial on the issues of guilt and sanity.

Petitioner was arrested with three other persons in January 1968 as they fled the scene in Dade County, Florida of the robbery of Mrs. Olive Wofford, a wealthy resident of Miami Beach. In May, 1968 before his trial for the Wof-ford robbery, the petitioner was arrested and indicted for the double murder in an adjoining Florida county, Broward, of two young women, Terry Rae Kent Frank and Annalie Mohn. These killings became notorious in the press as the “Whiskey Creek Murders.”

Pre-trial proceedings in the Wofford robbery case involved the trial judge’s controversial ruling as to the petitioner’s competency to stand trial. Extensive newspaper coverage again occurred. The robbery charges in the Wofford case were nolle prossed to permit the Broward County trial for the Whiskey Creek Murders to proceed. In August 1968, prior to that murder trial, Murphy and three others were indicted by a federal grand jury for conspiring to transport stolen securities in interstate commerce, charges related to the Whiskey Creek ease and so played up in the press. Murphy was found guilty on March 1, 1969, of one of the Whiskey Creek murders, that of Terry Rae Kent Frank. Again, the trial and its result were extensively publicized by the news media.

Thereafter on August 25, 1969, the state prosecutor refiled the Wofford robbery case. In December of the same year, Murphy pled guilty to one count of the federal indictment. During the early July 1970 pre-trial proceedings in the Wofford case, Murphy moved for change of venue on the basis of prejudicial pre-trial publicity, including the publicity attendant upon the earlier hearing in the Wofford robbery case, the Star of India theft, the Whiskey Creek Murders, and the federal conspiracy charges. The state trial judge deferred ruling on this motion pending voir dire examination of the jury panel. Voir dire commenced on July 27 and was completed on August 10, 1970. Of 78 veniremen questioned, 12 were excused peremptorily by the petitioner, and 8 by the state, 27 were excused for medical or economic reasons and 3 were excused for miscellaneous reasons. 20 were excused because they stated that they had formed an opinion as to petitioner’s guilt and could not give him a fair trial. 8 jurors were selected to serve at the trial, 6 regular and 2 alternate.

Of the 8 selected, 5 had read or heard about the facts surrounding the Wofford robbery through the media, from discussions with friends or through discussions with other prospective jurors. Each of the eight knew that Murphy had previously been convicted either in the Star of India theft or the Whiskey Creek Murders, but each assured the court that he would reach a verdict based solely on evidence introduced at the trial. The court denied the motion for change of venue and the trial proceeded. Murphy’s plea of insanity was rejected and he was convicted and sen-fenced, as noted supra, to life imprisonment and to a term of twenty years consecutive thereto.

The court below carefully weighed the claim of denial of due process on the basis of prejudicial pre-trial publicity, accepting his “duty to make an independent evaluation of the circumstances”, Sheppard v. Maxwell, 1966, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, but imposing upon the petitioner the burden of showing that his conviction was a result of “essential unfairness . . . not

as a matter of speculation but as a demonstrable reality”, Adams v. United States ex rel. McCann, 1942, 317 U.S. 269, 281, 63 S.Ct. 236, 242, 87 L.Ed. 268. The district court was “sensitive to the delicate balance that must be struck as a result of the pervasiveness of modern communications and the need to insure a fair trial for the accused”, 363 F.Supp. at 1226, adopting the approach set forth in United States v. Agueci, 2 Cir. 1962, 310 F.2d 817, cert. denied, 1963, 372 U. S. 959, 83 S.Ct. 1016, 10 L.Ed.2d 12; Irvin v. Dowd, 1961, 366 U.S. 717, 722-723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, and Reynolds v. United States, 1878, 98 U.S. 145, 156-157, 25 L.Ed. 244. The district judge found the presence of some objective criteria, Beck v. Washington, 1962, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98, in the nature and the time span of the pre-trial publicity. We are in agreement with his determination that since the newspaper articles were largely factual rather than inflammatory, and since the dates of the news clippings and edited television news releases were almost entirely between December 15, 1967 and January 24, 1969 (only five articles being presented to the court bearing dates of the period of the jury selection and only one of those being a front-page article) the passage of time is a crucial factor in this case. We find no record basis upon which to disturb his finding that “each of the five jurors who had some knowledge of the facts of the Wofford robbery possessed only a vague recollection of the facts.” 363 F. Supp. at 1229.

We agree with the district court that the failure to grant the motion for change of venue was not a denial of due process.

In this connection the petitioner urges that the language used by Judge Eaton (quoted Note 3, supra) in granting a continuance in the federal conspiracy trial shows that a change of venue was mandated in the Wofford robbery trial in state court. This is a new contention, not relied upon before the district court. These remarks were as Judge Eaton stated, not based on the question of, prejudice, but entirely on his own estimate of the practicalities of the situation and the conservation of his own judicial time. Made as it was sixteen months prior to the state court trial of the Wofford robbery case, and addressed to entirely different considerations, his statement is irrelevant in the context of this habeas corpus petition. We find petitioner’s argument in this respect to be without substance.

The second issue, whether each juror who possessed knowledge of Murphy’s previous felony convictions, should have been excluded for cause is, as stated by the court below, more troublesome, but we affirm his rejection of this ground of attack by his excellent analysis at pages 1229-1230, 363 F.Supp. As pointed out there, Marshall v. United States, 1959, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250, will not support issuance of the writ on this ground, since as the Supreme Court was at pains to point out, 360 U.S. at 313, 29 S.Ct. at 1171, its action was taken in that direct criminal appeal pursuant only to its inherent supervisory powers and not in terms of due process standards. We think the district court correctly appraised the situation in its refusal on grounds of federalism to grant the writ on this ground of the petition. The district court’s holding in this respect is well summarized in the following language:

“Although the situation in Marshall is factually similar to the instant case, the rationale of that opinion militates against Petitioner’s position. This Court, then, finds that a trial by jurors, each of whom has obtained knowledge of a defendant’s past felony convictions through pre-trial publicity does not, in light of the Supreme Court’s refusal to so find, rise to Constitutional proportions when each juror has satisfied the impartiality requirements set forth in Irvin v. Dowd, supra. The Court recognizes that the distinction between acts or occurrences which warrant the exercise of federal supervisory powers and those which reflect a denial of due process is often a nebulous one. Nevertheless, the dictates of federalism compel this Court to abide by that distinction whenever it exists. Petitioner’s claim regarding the effects of pre-trial publicity must fall.” 363 F.Supp. at 1230.

Finally, we agree with the holding below that the final ground of attack, the refusal of the state trial court to grant a bifurcated trial on the issues of guilt and sanity, does not rise to constitutional dimensions. Due process does not require a separate trial and the states and their courts are free to determine whether such issues should be tried separately or together. United States v. Huff, 5 Cir. 1969, 409 F.2d 1225, cert. denied, 1969, 396 U.S. 857, 90 S.Ct. 123, 24 L.Ed.2d 108.

The judgment appealed from is in all respects

Affirmed.

      . Murphy had received nationwide press attention in 1964 for his role in the theft of the “Star of India” sapphire from the New York Museum of Natural History. The public media’s use of the nickname “Murph the Surf” dated from that time.

      . Adopted as correct by both parties to this appeal.

      . A statement made by the presiding judge, U. S. District Judge Eaton, in the course of these proceedings did not occur shortly before the Wofford robbery trial in the state court, as stated by appellant’s brief. The record shows that Judge Eaton’s statement was made at a March 6, 1969 hearing, not at a 1970 hearing, as appellant’s brief seems to indicate. At that hearing Judge Eaton granted a continuance of the case before Mm, No. 68-360, rather than rule on a motion for change of venué. His ruling was based on expediency:
      “I am forgetting the question of prejudice and being very practical about it . . . I think if we tried to do that next week, that we would spend a week on voir dire and never conceivably get a jury. Speaking of the time in Court, I have five other criminal cases I could be trying while we are asking these folks if they know anything about Murph the Surf, because I am telling you, they do. People in this County can tell you who Murphy is, who would not have the slightest idea who Earl Pair-cloth is, and I think that is a fair statement. I am not talking about any prejudicial newspaper coverage at all. It may be that because Mr. Murphy has simply sort of, somehow or another, become pretty good publicity; but the point is, considering for a moment every count in every trial which was ever had was entirely fair, this man is simply too widely known, and so is Griffith and Kuhn, to some degree.”
      As noted in the text, Murphy pled guilty to one count of this indictment in 1969. Judge Eaton thereafter granted a change of venue to Pensacola in the Northern District of Florida to the remaining defendants under that indictment. Their case was tried and disposed of by him in Pensacola in April 1970.

      . We are aware of the view announced in United States ex rel. Doggett, 3 Cir. 1973, 472 F.2d 229, 237-239, that Irvin v. Dowd, supra, and Sheppard v. Maxwell, supra, broaden the Marshall holding so as now to require that its rule be applied to state trials. While the question arose in a prejudicial publicity-change of venue setting in Doggett, we do not seriously doubt that the Third Circuit would apply its holding equally in a situation involving, as presently under discussion, denials of challenges for cause based on a juror’s knowledge of prior convictions. With deference, we disagree with our sister Circuit’s conclusion and decline here to be guided by Doggett.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Hillward John FRUGÉ, Defendant-Appellant.
    No. 73-3973
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 7, 1974.

      George M. Leppert, New Orleans, La. (Court-appointed); for defendant-appellant.
    Donald E. Walter, U. S. Atty., Shreveport, La., for plaintiff-appellee.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

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

   PER CURIAM:

Frugé, convicted by jury of violating the Gun Control Act, 18 U.S.C.A. § 922(a)(6), contends on appeal that his counsel was inadequately prepared and lacked diligence and skill in his representation during trial. He further argues that the evidence was insufficient tb sustain his conviction. We affirm.

At trial Frugé stipulated that he had purchased the weapon in question, had signed Form 4473 in which he stated that he had not been convicted of a crime punishable by imprisonment in excess of one year, but that he had, in fact, been previously convicted of a felony. Thus the only contested factual issue submitted to the jury was whether Frugé knowingly made the false written statement in the purchase of the firearm.

We can find no support in the record for Frugé’s assertion that his counsel was ineffective. His two retained attorneys by stipulation removed from persuasion of the jury some of the Government’s most convincing evidence and put the prosecution to the proof of the most difficult element of the offense, i. e., that Frugé knowingly made a false statement. Moreover, by such tactics Frugé effectively prevented the Government from showing the jury his prior felony conviction. We are of the firm view that an adequate defense was presented. It is not our function to fault trial counsel on the strategy employed. As we recently reiterated in Herring v. Estelle, 5 Cir. 1974, 491 F.2d 125, 127:

[Effective counsel means] not error-less counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.

Nor are we persuaded that counsel’s failure to move for a judgment of acquittal at the close of the Government’s ease bolsters Frugé’s argument of ineffective assistance of counsel. On the record before us, what we said in United States v. Prince, 5 Cir. 1974, 491 F.2d 655, 659, is particularly apropos:

A careful reading of the record reveals nothing to sustain the charge that trial counsel was incompetent or neglectful. . . . There was no motion for judgment of acquittal. The evidence here was sufficient, indeed ample, and to send the case to the jury, and no miscarriage of justice occurred.

Frugé’s second contention that there was insufficient evidence to sustain the conviction gives us little pause. Since there was np motion for a judgment of acquittal at the close of the Government’s case, we will not review the sufficiency of the evidence except to determine whether there occurred a manifest miscarriage of justice. United States v. Hopkins, 5 Cir. 1972, 458 F.2d 1353, 1354; United States v. Baber, 145 U.S.App.D.C. 98, 447 F.2d 1267, 1270 n. 8, cert. denied, 1971, 404 U.S. 957, 92 S. Ct. 324, 30 L.Ed.2d 274; United States v. Wright, 5 Cir. 1970, 427 F.2d 1179, 1180. There is here not a trace of evidence pointing to a miscarriage of justice. On the contrary, the evidence points overwhelmingly to the guilt of Frugé. See United States v. Washington, 5 Cir. 1973, 485 F.2d 578.

Affirmed.


text:
    Norwood E. JONES, Petitioner-Appellant, v. James D. HENDERSON, Warden, U. S. Penitentiary, et al., Respondents-Appellees.
    No. 73-3313
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 6, 1974.
    Norwood E. Jones, pro se.
    Gale McKenzie, Anthony Arnold, Asst. U. S. Attys., Atlanta, Ga., for respondents-appellees.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

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

   PER CURIAM:

Norwood E. Jones, an inmate of the federal penitentiary at Atlanta, Georgia, appeals an order of the district court denying his mandamus petition against prison authorities for alleged obstruction of his mail.

We vacate and remand with directions . to the district court to require appellant to exhaust his administrative remedies in accordance with Bureau of Prisons Policy Statement No. 2001.6, dated February 14, 1974, effective April 1, 1974. See Thompson v. United States Federal Prison Industries, 5 Cir., 1974, 492 F.2d 1082.

Vacated and remanded.


text:
    Charlie B. BROWN, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellee.
    No. 74-1015
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 7, 1974.

      Charlie B. Brown, pro se.
    Robert Olian, Asst. Atty. Gen., Miami, Fla., for respondent-appellee.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

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

   PER CURIAM:

This appeal by a Florida state prisoner involves, in essence, two petitions for habeas corpus relief. The first rested on a bare claim of denial of a speedy trial under the Sixth Amendment coupled with a claim in extenso of a violation of the Florida rule on the subject, Rule 3.191, Fla.R.Cr.P., 33 F.S.A. Appellant had exhausted his available state remedies as to the Florida rule claim without success. The district court denied relief on the merits and we affirm as to the Florida point.

Then on a petition for rehearing in the district court, appellant amplified his position that he had been denied his federal constitutional right to a speedy trial. The district court pointed out in its initial order denying relief that appellant had made no effort to state a claim within the contemplation of the teaching of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The district court denied reconsideration. We view the petition for reconsideration as being in the nature of an additional habeas petition stating a claim based on the federal right to a speedy trial. Appellant particularly sets out allegations of prejudice from the delay. Ordinarily an evidentiary hearing would be required in the development of the factors to be considered under Barker v. Wingo, supra, but we find from the record that this claim has not been exhausted in the Florida state courts. Appellant must exhaust his Florida remedies as a condition precedent to federal relief.

In sum, we affirm the denial of relief under the original petition. Treating the petition for reconsideration as an additional petition, we vacate and remand for dismissal on the ground of failure to exhaust state remedies.

Affirmed in part; vacated and remanded in part.


text:
    Juan M. GODIN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-1531
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 10, 1974.

      Juan M. Godin, pro se.
    John M. Pinckney, III, Asst. U. S. Atty., San Antonio, Tex., for respondent-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

Juan M. Godin appeals from a district court order denying his 28 U.S.C. §-2255 motion to vacate a sentence imposed as a result of his conviction for selling heroin not pursuant to a written order form or from an original package, in violation of 26 U.S.C. §§ 4704(a) and 4705(a). In his 2255 motion he asserts as grounds for relief that the trial court failed to apprise him of his right to appeal as required by Federal Rule of Criminal Procedure 32(a) (2). We affirm.

The record reveals that on April 13, 1970, the jury tendered its verdict of guilty as charged and the trial court entered its judgment of conviction. Subsequent to imposing sentence, but nevertheless on the same day, the district court sent a letter to Godin by registered mail, informing him of his right to appeal. Appearing at the bottom of this letter are the words: “I do not wish to appeal. Signed Juan M. Godin.” Correspondence from his trial attorney, dated April 17, 1970, confirms the fact that Godin did not desire to appeal. Thus, the record supports the conclusion that Godin was informed by the court of his right to appeal and elected not to exercise it.

Nevertheless, Godin contends that the failure of the trial judge to apprise him of his right to appeal in open court contravenes F.R.Crim.Pro. 32(a)(2). This rule stipulates as follows:

“(2) Notification of Right to Appeal. After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of his right to appeal and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis. If the defendant so requests, the clerk of the court shall prepare and file forthwith a notice of appeal on behalf of the defendant.”

Clearly, this rule does not by its own terms mandate that which Godin apprehends. To our knowledge, no court has been of such a view. Thus, although it may be preferable to advise a defendant of his right to appeal in open court, a court is not unequivocally forbidden to do so by the means chosen by the trial court in this case. Godin was apprised of his right to appeal in substantial compliance with the rule.

The judgment is affirmed.