author: ROSS, Circuit Judge. MATTHES, Senior Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Bobby Lee WILLIAMS, Appellant.
    No. 73-1014.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 14, 1973.
    Decided Aug. 16, 1973.

      Daniel P. Reardon, Jr., St. Louis, Mo., for appellant.
    John A. Newton, St. Louis, Mo., for appellee.
    Before VAN OOSTERHOUT and MATTHES, Senior Circuit Judges, and ROSS, Circuit Judge.
   ROSS, Circuit Judge.

This is an appeal from the conviction of Bobby Lee Williams for making a false statement on an application to purchase a firearm in violation of 18 U.S.C. §§ 922(a)(6) and 924(a). We reverse and remand for a new trial.

On or about September 17, 1970, Williams was convicted in Missouri State Court of carrying a concealed weapon. On October 21, 1970, he was sentenced to one year in county jail on said conviction although under Missouri law the crime charged was a felony and the sentence could have exceeded one year. Williams appealed the conviction to the Missouri Supreme Court.

On May 25, 1971, Williams signed the firearms transaction form in question which indicated that Williams answered “no” to a question as to whether or not he had theretofore been convicted “of a crime punishable by imprisonment for a term exceeding one year?” In this trial Williams claimed he told the salesman that he “had been convicted here in Cape Girardeau, Missouri, and I was sentenced to one year . . . and the case was being appealed . . . ” The salesman denied that Williams had said anything at all about the previous conviction.

On November 1, 1971, a federal jury convicted Williams of making a false statement as charged by the aforesaid federal indictment and Williams was sentenced to a five-year term. The conviction was appealed to this Court. We reversed the conviction and remanded for a new trial on the grounds that prejudicial error occurred when the United States Attorney questioned a witnes's about taking the fifth amendment before the grand jury. United States v. Williams, 464 F.2d 927 (8th Cir. 1972).

On June 12, 1972, the Missouri Supreme Court reversed Williams’ earlier state court conviction of carrying a concealed weapon and ordered that Williams be discharged. State of Missouri v. Williams, 481 S.W.2d 1, 3 (Mo.1972).

On November 8, 1972, Williams was retried in federal court on the indictment charging a false statement made in the purchase of a firearm, and on November 9, 1972, he was again found guilty. This appeal was then taken.

Immediately prior to this last trial, in a conference in the chambers of the trial court, the attorneys and the trial court discussed the question of whether or not evidence could be received concerning the state court conviction, and if so, whether or not the reversal of that conviction by the Missouri Supreme Court could be shown by Williams. The trial court determined that the state court conviction could be shown by the Government but that the reversal of that conviction by the. Missouri Supreme Court on appeal could not be shown by Williams. The trial court permitted an offer of proof of the reversal in the form of a certified copy of the judgment of the Missouri Supreme Court, but sustained the Government’s objection thereto on the grounds that it was irrelevant and ordered the attorneys not to mention or refer to the reversal of the conviction during trial.

Counsel for Williams claimed that the reversal should be admitted for two reasons: First, he claimed that since a prior conviction of a felony was an essential element of the crime charged, that the reversal of the state court conviction required a dismissal of the false statement indictment. Secondly, he claimed that it was prejudicial from an evidentiary standpoint “in branding this man as a convict when he isn’t in fact one — ”. Williams’ counsel did not specifically refer to the question of the effect of showing the conviction on the credibility of Williams as a witness and . did not raise that specific question in his brief. He did raise it in this Court on oral argument.

At the trial, as indicated heretofore, there was a direct conflict between the testimony of the salesman and Williams, thereby directly placing the credibility of Williams as a witness in question. Indeed the trial court indicated that “[t]he only question in this case is whether or not this jury is going to believe he lied about his conviction ft

We turn first to Williams’ assertion that the trial court erred in permitting the Government to allege and prove the prior state court conviction after the conviction had been reversed by the Missouri Supreme Court. The Ninth Circuit has considered this argument and rejected it in a well-reasoned opinion in United States v. Liles, 432 F.2d 18 (9th Cir. 1970). In that case the prior conviction of Liles had been reversed just before his trial on the federal false statement charge, but the word of the reversal did not reach Liles until after he had been tried and convicted of the federal charge. Post trial motions for a new trial were overruled. The Ninth Circuit held that Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 “speaks only of conviction of a felony. It contains no requirement that the conviction be finally upheld on appeal.” Id. at 20. It specifically held that Liles’ possession of a gun “was unlawful for one of his status at the time he possessed it. It is not made lawful by the subsequent reversal of his conviction.” Id. at 21. We agree with the rationale of this holding and apply it to this case. See also DePugh v. United States, 393 F.2d 367 (8th Cir. 1968).

The introduction of the prior state court conviction had the dual effect of showing an essential element of the crime of making the false statement, and also tending to impeach the credibility of Williams as a witness. Having already held that the conviction was admissible to show an essential element of the crime, the sole remaining question is whether or not the fact of the reversal of the conviction should have been admitted, under proper instructions, to mitigate the damage thus done to Williams’ credibility as a witness. We conclude that it should have been admitted for that limited purpose.

In his direct examination Williams stated that he had advised the salesman that he had not served any time on the state court sentence “because the ease was being appealed . . .” Following the trial court’s instructions, he did not refer to the reversal of the conviction. On cross-examination the Government attorney asked Williams at least four questions about his testimony concerning his conversation with the salesman about the appeal. This was an obvious effort to impeach his testimony by pointing up the fact that during his first trial on the false statement charge, Williams did not testify that he told the salesman about the appeal. The effect, of this testimony is speculative, but certainly the jury must have wondered about the outcome of the appeal, and it could have concluded that the failure of Williams to mention the outcome was indicative that the conviction had been affirmed.

It is well settled that in a trial a witness’ acts of misconduct are not admissible to impeach his credibility unless the acts resulted in the obtaining of a conviction. Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 93 L.Ed. 168 (1948). When that witness is the defendant in a criminal trial, we have held the same rule applicable. Schwab v. United States, 327 F.2d 11, 16 (8th Cir. 1964).

We have been unable to locate cases which articulate the impeaching effect of an already reversed conviction. However, the result we reach is suggested by a line of cases dealing with the use for impeachment purposes of a conviction pending on appeal.

A review of the authorities in this area discloses that the Seventh Circuit was one of the first to address this particular question. In United States v. Empire Packing Co., 174 F.2d 16, 20 (7th Cir.), cert, denied, 337 U.S. 959, 69 S.Ct. 1534, 93 L.Ed. 1758 (1949), the court held that the fact that the defendant’s conviction was pending on appeal, as brought out in the trial court, did not render the inquiry about the conviction on cross-examination improper. In so ruling, the court said:

“. . . Unless and until the judgment of the trial court is reversed, the defendant stands convicted and may properly be questioned • regarding said conviction solely for the purpose of testing credibility.”

Although generally cited for the proposition that the defendant’s credibility may be impugned by a conviction even though an appeal is pending, the passage suggests that after reversal, the trial court judgment cannot be used at all for the impeachment.

The Ninth Circuit has repeatedly held that until the judgment of the lower court is reversed, a conviction will stand and the defendant may be questioned regarding the conviction for purposes of impeachment. United States v. Allen, 457 F.2d 1361, 1363 (9th Cir. 1972); United States v. Griffin, 434 F.2d 978 (9th Cir. 1970), cert, denied sub nom. Andrews v. United States, 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971); Bloch v. United States, 226 F.2d 185 (9th Cir. 1955), cert, denied, 350 U.S. 948, 76 S.Ct. 323, 100 L.Ed. 826 (1956). It has also held that where a conviction was found on the previous day, a question upon prior conviction was proper even though the judgment of conviction was not entered until later. United States v. Canaday, 466 F.2d 1191, 1193 (9th Cir. 1972).

The Seventh and Ninth Circuits follow the most restrictive view of the treatment of the situation involving a conviction pending on appeal. As is evident, even that view supports the result in this case that a reversed conviction may not be used for impeachment without at least showing the reversal. Other circuits, although they have not addressed the instant circumstances, espouse a view of the use for impeachment purposes of convictions pending on appeal, that would indicate even more clearly that the already reversed conviction may not be used. In Campbell v. United States, 85 U.S.App.D.C. 133, 176 F.2d 45, 47 (1949) the District of Columbia Circuit Court stated:

“[I]t seems to us wholly illogical and unfair to permit a defendant to be interrogated about a previous conviction from which an appeal is pending. If the judgment of conviction is later reversed, the defendant has suffered, unjustly and irreparably, the prejudice, if any, caused by the disclosure of the former conviction. . . .”

The Court held, however, that the error was not prejudicial. See also Fenwick v. United States, 102 U.S.App.D.C. 26, 252 F.2d 124 (1958); Beasley v. United States, 94 U.S.App.D:C. 406, 218 F.2d 366 (1954), cert, denied, 349 U.S. 907, 75 S.Ct. 584, 99 L.Ed. 1243 (1955).

More recently, this reasoning has been adopted by the Second Circuit relating to the impeaching effect of a guilty plea before a sentence has been imposed. United States v. Semensohn, 421 F.2d 1206, 1208 (2d Cir. 1970).

A middleground on the theory is that advanced by the Fifth Circuit. In United States v. Franicevich, 471 F.2d 427, 429 (5th Cir. 1973), the court held that while a judgment of conviction is not held in suspension pending the outcome of an appeal, the better rule is that a prior conviction, yet unreversed, may be explained to the extent of showing that the conviction is pending on appeal and the jury may then give it such weight as it wishes.

The Eighth Circuit has never clearly delineated its position on the general question of admissibility on cross-examination of a prior conviction then pending on appeal, but the split of authorities in the federal courts on the point was recognized and discussed by this Court in Newman v. United States, 331 F.2d 968, 973 (8th Cir. 1964), cert, denied, 379 U.S. 975, 85 S.Ct. 672, 13 L.Ed.2d 566 (1965).

Again in Edwards v. United States, 333 F.2d 588 (8th Cir. 1964), without espousing which line of authorities the circuit was following, the Court noted that:

“. . . deeply embedded in most, if not all, of the decisions is the prime significance accorded to the possible prejudicial effect that admission of the pending conviction may have had upon the ultimate verdict . . .” Id. at 592.

That case was decided on the basis that the admission of the evidence had no prejudicial effect on Edwards’ rights and did not deprive him of a fair trial.

Most recently, in Drummond v. United States, 350 F.2d 983 (8th Cir. 1965), cert, denied sub nom. Castaldi v. United States, 384 U.S. 944, 86 S.Ct. 1469, 16 L.Ed.2d 542 (1966), the question of the propriety of permitting cross-examination of a testifying defendant with respect to a conviction pending on appeal was again faced by this Court. Again, the Court found that no prejudicial error existed. After a question was asked of the defendant on cross-examination about a prior felony, a bench conference took place and the question was left unanswered. It was later revealed that the defendant had been convicted of a felony but that the appellate court had reversed and ordered the defendant discharged. The reversal took place after the federal conviction which was the subject of the reported appeal. The Court determined that under the circumstances, no prejudicial error had been found:

“. . . It would have been better had the question not been asked. But, although asked, it was not answered and no further comment about the conviction was made by anyone before the jury. [The defendant] had conceded another state conviction in a recent year. . . . ” Id. at 991.

Many of the foregoing cases, though not dealing with the precise question at hand, speak in terms of the use of convictions which are being appealed, as being admissible for impeachment purposes only “unless and until” it is later reversed on appeal. The logical implication of those cases is that the evidence is not admissible where the conviction has already been reversed prior to trial. This is especially true where, as in the cases decided heretofore in this circuit, emphasis is placed on whether or not the defendant was thereby prejudiced.

In this case the state court conviction in question was the only conviction on the record of Williams; this conviction, later reversed, was for carrying a concealed weapon, a charge somewhat related to this charge of a false statement in the purchase of a firearm; the reversal of the state court conviction did not require a new trial but ordered that Williams be “discharged”; there was a direct conflict in the testimony of the sales person and Williams on the only factual question in the case; and the Assistant United States Attorney conceded on oral argument that if there was error, it was prejudicial error. Considering all of these factors, and limiting our holding to the precise factual situation of this case, we conclude that the effect of refusing to allow Williams to show the reversal of the prior conviction was prejudicial error requiring a new trial.

Although Williams’ counsel did not raise the credibility issue directly, he did object to the refusal to admit the evidence showing the reversal on the ground that it had the effect of “branding this man as a convict when he isn’t in fact one — ”. Under Rule 52(b) of the Federal Rules of Criminal Procedure, plain errors which affect substantial rights of the defendant may be noticed even though they are not brought to the attention of the court. Whether we consider this to be an objection relating to credibility albeit inartfully worded, or plain error under Rule 52(b), in our opinion it had the effect of depriving Williams of -,a fair trial and should not be disposed of on the technical basis of counsel’s failure to properly specify the reason for the objection. See United States v. Semensohn, supra, 421 F.2d at 1210.

Reversed and remanded for retrial in conformity with the views expressed in this opinion.

MATTHES, Senior Circuit Judge

(dissenting).

I have no difficulty with that part of the majority opinion holding that a defendant can be convicted for making a false statement regarding his status as a felon on an application to purchase a firearm, despite the subsequent reversal of his sole felony conviction. However, I -disagree with the determination that reversal of appellant’s conviction is necessary because the appellant was not allowed to introduce evidence of the reversal of his state felony conviction on the issue of credibility.

There are basic principles of law which must be considered and should be applied in this case in resolving the evi-dentiary matter. We should refrain from reviewing an issue not raised by objection during the trial, but which is presented for the first time at oral argument on appeal. This principle has been recognized by this and other courts in many cases. Thus, in McNeely v. United States, 353 F.2d 913, 917 (8th Cir. 1965), Judge Gibson, in speaking for the court, stated:

“It is an axiom of trial procedure that counsel must take the initiative in protecting the rights of his clients. The cases are too numerous to cite which hold that to preserve for review any acts or omissions of a trial court the party must make ‘known to the court the action he desires the court to take or his objection to the action of the court and the grounds therefor; . . .’ Rule 51, Fed.R.Crim.P. A party may not stand idly by, watching the proceedings and allowing the Court to commit error of which he subsequently complains. Thomas v. United States, 287 F.2d 527 (5 Cir. 1961).”

In United States v. Mitchell, 463, F.2d 187, 192 (8th Cir. 1972), cert, denied, 410 U.S. 969, 93 S.Ct. 1449, 35 L.Ed.2d 705 (1973), we stated: “It should be noted first that Mitchell did not properly raise this particular point in his brief, and we are not disposed to have theories raised for the first time during oral argument.” See also Thomas v. United States, 287 F.2d 527 (5th Cir. 1961). The rationale for the rule is obvious. The trial judge should not be faulted for commission of prejudicial error where a party does not afford the judge an opportunity to correct the situation of which he subsequently complains.

This ease is a typical one for adhering to the rule above stated. During the colloquy between the judge, the Assistant United States Attorney, and the attorney representing appellant, the court, after denying appellant’s oral motion for dismissal, requested counsel for appellant to state his position on the eviden-tiary aspect of the reversal of the felony conviction. Counsel’s response in no way indicated that he deemed the evidence admissible on the issue of credibility.

Furthermore, appellant’s brief did not submit the credibility issue. Only one point was submitted in the brief, which was to the effect that the court erred in permitting the government to allege and prove a prior felony conviction when the conviction had been reversed, and in denying appellant the right to prove his acquittal on the state charge “all in violation of due process of law.” The credibility question made its appearance for the first time at oral argument. As I understand Rule 51, Fed.R.Crim.P., and the cases interpreting that rule, appellant’s claim of error came too late.

The majority opinion recognizes that appellant’s counsel did not raise the credibility issue directly, but then proceeds to consider the issue as “plain error” under Rule 52(b), Fed.R.Crim.P., which, of course, requires no initial objection in the trial court. But, in so holding, the majority runs counter to what this court has consistently held, that is, that the “plain error” rule is to be invoked cautiously and sparingly, only in exceptional cases, to prevent a clear miscarriage of justice. United States v. Reed, 446 F.2d 1226 (8th Cir. 1971); United States v. Cable, 446 F.2d 1007 (8th Cir. 1971); McNeely v. United States, 353 F.2d 913 (8th Cir. 1965); Black v. United States, 309 F.2d 331 (8th Cir. 1962); Bell v. United States, 251 F.2d 490 (8th Cir. 1958). Also see, e. g., United States v. Sheley, 447 F.2d 455 (9th Cir. 1971), cert, denied, 405 U. S. 1022, 92 S.Ct. 698, 30 L.Ed.2d 672 (1972); United States v. Flanagan, 445 F.2d 263 (5th Cir. 1971), cert, denied, 404 U.S. 1060, 92 S.Ct. 741, 30 L.Ed.2d 748 (1972).

Moreover, having failed to object below to the action of the trial court excluding the evidence, the burden is upon the appellant to demonstrate that the exclusion was so “palpably flagrant” as to affect his substantial rights and constitute “plain error” under Rule 52(b), Fed.R.Crim.P. United States v. Flanagan, supra at 265. See also McNeely v. United States, supra at 917 of 353 F.2d. Viewed objectively, this record does not convince me that exceptional circumstances exist which require the application of the “plain error” rule.

There is nothing to indicate that the government attempted to exploit before the jury the exclusion of the reversal in order to destroy the appellant’s credibility. Additionally, the court did not instruct the jury that the prior conviction of the appellant could be considered in determining his credibility. Rather, the appellant’s credibility was substantially weakened by his own conflicting testimony at the two trials concerning what he had said to the gun salesman.

This record convinces me that the evidence of guilt was strong. The appellant’s credibility was weak, even with the awareness that the state felony conviction had been overturned. Moreover, the majority overlooks the practically uneontroverted showing by the government that the appellant had made yet a second false statement to the gun salesman, concerning his current address. An adequate showing of this second false statement alone would warrant a conviction under the federal statute.

Mr. Justice Frankfurter, concurring in Johnson v. United States, 318 U.S. 189, at 202, 63 S.Ct. 549, at 555, 87 L. Ed. 704 (1943), stated:

“In reviewing criminal cases, it is particularly important for appellate courts to re-live the whole trial imaginatively and not to extract from episodes in isolation abstract questions of evidence and procedure. To turn a criminal appeal into a quest for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution.”

In conclusion, I am not persuaded to believe that the error, if any, was prejudicial, and I am opposed to sending the case back to the trial court for yet another trial.


source: Caselaw Access Project

author: O’SULLIVAN, Senior Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Norris GOSS, Defendant-Appellant.
    No. 73-1164.
    United States Court of Appeals, Sixth Circuit.
    Argued June 8, 1973.
    Decided Aug. 31, 1973.

      Thomas C. Simiele, Rocky River, Ohio (Court appointed), for defendant-appellant.
    John P. Berena, Cleveland, Ohio, for plaintiff-appelleeFrederick M. Coleman, U. S. Atty., William D. Beyer, Asst. U. S. Atty., Cleveland, Ohio, on brief.
    Before PHILLIPS, Chief Judge, LIVELY, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge.
   O’SULLIVAN, Senior Circuit Judge.

We consider the appeal of Norris Goss from conviction, upon jury trial, of armed bank robbery in violation of 18 U.S. C. § 2113(a) and (d). The ease was tried in the United States District Court for the Northern District of Ohio, Eastern Division. Assigned as error are:

First, that the District Judge did not make adequate findings to support his ruling that a confession of guilt by appellant had been voluntarily made, and
Second, that the District Judge failed to give a specific instruction submitting the issue of voluntariness of appellant’s confession to the jury. This, appellant asserts, was commanded by 18 U.S.C. § 3501.

On June 27, 1972, a branch of the Cleveland Trust Company was robbed of some $4,000. The robbery was carried out by some five or six armed men. Two of the robbers jumped over a counter and gathered the money.

On July 8, 1972, appellant was arrested by the Cleveland police and on July 9 two FBI agents interviewed Goss and obtained from him a confession of his participation in the crime. Before this confession was admitted in evidence at the trial, a hearing out of the jury’s presence was conducted by the District Judge to determine whether it had been given voluntarily.

FBI agents who had obtained the confession testified at the preliminary hearing. They stated that before their examination of Goss, he read and signed a statement which gave him the so-called Miranda warnings and acknowledged that he had received them. He told of his participation in the robbery, at which time he had been armed with a 45-calibre pistol. He identified himself in a picture taken by a bank surveillance camera while the robbery was in progress. At trial, he was identified by a bank customer as one of the robbers. Sufficient to say, there was clear evidence of Goss’ participation in the involved criminal enterprise, if his confession was properly admitted.

Appellant’s charge that his confession had not been voluntarily given arises primarily from his statement that his mother had just died and that at the time of questioning by the agents, he was deeply grieved and possessed by a fear that his then detention might deny him the opportunity to attend his mother’s wake and funeral. He said that he was told by the agents that they would try to obtain permission for him to do so. He did not claim, however, that success by the agents in this endeavor was a condition to his signing the confession. It was signed before the agents attempted, but failed to obtain such permission. He also said that his acknowledgment of being given the Miranda warnings had not been signed before he gave his confession. His motion to suppress asserted that these circumstances induced him to give the confession.

He did not repudiate the truth of the contents of his confession; neither did he testify at the trial. At the conclusion of the hearing on appellant’s motion to suppress, the District Judge announced his ruling by the statement,

“The motion is overruled.”

At trial, the voluntariness of appellant’s confession was not put in issue. No effort was made to present to the jury evidence employed at the preliminary hearing to challenge its voluntariness. Out of the presence of the jury, defense counsel repeated the objection made by the original motion to suppress it. Thus, the voluntariness of the confession was not made an issue for the jury’s resolution.

7. Inadequacy of the District Court’s Findings.

The asserted vice of the District Court’s disposition of the motion to suppress the confession resides in the charged inadequacy of his ruling: “The motion is overruled.” In other contexts, such language might indeed be read as expressing a trial judge’s conclusion that the evidence before him was sufficient to satisfy the prosecution’s burden to establish the voluntariness of the confession. However, we believe that today’s law exhibits its quite special anxiety that conviction of those accused of crime may not be based upon a confession unless the voluntariness of such confession be first established by procedures commanded by the United States Supreme Court. Whatever may have been accepted as sufficient prior to the Court’s decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), nothing less than obedience to the rule of that ease will now do. There the Court said:

“These procedures [determination of admissibility of a confession] must, therefore, be fully adequate to insure a reliable and clear-cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend.” 378 U.S. at 391, 84 S.Ct. at 1788.

We think also that a more specific explication of the rule is furnished by Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967), wherein the Court said:

“Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity. Here there has been absolutely no ruling on that issue and it is therefore impossible to know whether the judge thought the confession voluntary . . . 385 U.S. at 544, 87 S.Ct. at 643 (Emphasis supplied.)

We are at once aware that the challenge to the voluntariness of the confession involved in Sims had much more substance to it than the one we deal with here. However, we are not at liberty to substitute our appraisal of the evidence taken on the motion to suppress and say on our own that it portrays “with unmistakable clarity” the voluntariness of appellant’s confession.

We should observe further that we are not at liberty to employ the harmless error rule to sustain the District Court. Certainly if we could pass upon the voluntariness of Goss’ confession and consider it with the other evidence before the jury, we would have little trouble in saying that, whatever the procedural errors, appellant’s guilt was made out beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In considering harmless error in this case, we are limited to the trial evidence, exclusive of the confession. This evidence consisted of a customer of the bank, present at the time of the robbery, making a courtroom identification of appellant as one of the robbers. No one else present in the bank during the robbery identified appellant; the robbers were masked, but the customer said that appellant’s mask, a stocking cap, had fallen off at the moment she saw him jumping over the counter. This witness, like everyone else present, had obeyed the robbers’ command to lie, face down, on the bank floor. An FBI agent did produce at trial one of the pictures taken during the course of the robbery. He did not, however, identify it as a picture of defendant. Its relevancy and materiality arises only from the agent saying that Goss, at the time of the confession, identified the print as a picture of himself. The print was not exhibited to the jury for their evaluation of it as a picture of appellant.

We have, perhaps at needless length, set out the foregoing to explain our unwillingness to find that, without the confession, the evidence of appellant’s guilt was overwhelming. Today’s concern for the rights of those accused of crime dictates that quite special care be exercised in permitting the use of confessions as prosecutorial weapons. Jackson v. Denno, supra, and Sims v. Georgia, supra, enjoin upon us employment of such care in dealing with the case before us.

The ease is remanded to the District Judge for a fresh review of the evidence adduced at the hearing on voluntariness, and an adequate expression from him as to whether or not the voluntariness of Goss’ confession does appear from such evidence, “with unmistakable clarity.” The District Judge shall, after such consideration and the making of the ordered finding, transmit it to this Court.

We will not now grant a new trial, but will await receipt of the findings which we hereby direct the District Judge to make.

We believe this procedure is consonant with the command of Jackson v. Denno, supra, 378 U.S. 368, 395, 84 S.Ct. 1774 (1964). See also the procedure directed by the Eighth Circuit in United States v. Keeble, 459 F.2d 757, 762 (1972), rev’d on other grounds, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (decided May 29, 1973.)

II. Failure to submit issue of volun-tariness to the jury.

18 U.S.C. § 3501(a), provides in part: “If the trial judge determines that the confession was voluntarily .made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.”

At the trial, the FBI agent related what had occurred at the time the confession was signed by appellant. The agent was not cross-examined. Appellant’s version of what was said and done, which had been relied upon in the motion to suppress, was never put before the jury. The only objection to the admission of the confession was defense counsel’s statement, made out of the presence of the jury. He said:

“ * * * we wish to continue our objection to testimony that we believe the agent will testify to, which is the statement made by the defendant to the agents.
“We base this on the same grounds as in the previous motion. * * *
“One additional statement: if the government continues to use this, refer to the statements made by the defendant while he was in custody without benefit of counsel, the defense wishes to lodge a continuing objection to this, and we will not stand up and object each individual time so as to tie up the Court.”

The objection was overruled.

There was no effort made to get before the jury anything to put in issue the voluntariness of the confession. The witness who identified appellant as one of the robbers was not cross-examined. Defendant did not testify, and proofs were closed with defense counsel’s statement that “[T]he defendant will not produce any witnesses or put on a defense.” Thus, no issue as to the volun-tariness of the confession was made. The relevant language of Section 3501(a) requires that the trial judge,

“[S]hall permit the jury to hear relevant evidence on the issue of volun-tariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.”

There having been no challenge, before the jury, as to the confession’s voluntariness, we do not consider that the trial judge was required to have the jurors consider an issue upon which there was no evidence before them. The defense proffered no request for an instruction relevant to voluntarinesss of the confession;' neither, when invited to do so, did defense counsel criticize the Court’s charge for not including such an instruction. The circumstances here do not urge us to find error in the trial judge’s instructions.

The cause is remanded to the District Court for further proceedings as above ordered.


author: LEWIS R. MORGAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellant, v. PELZER REALTY COMPANY, INC., and William G. Thames, Defendants-Appellees.
    No. 72-1609.
    United States Court of Appeals, Fifth Circuit.
    Sept. 5, 1973.
    Rehearing and Rehearing Denied Nov. 19, 1973.

      Ira De Ment, U. S. Atty., Montgomery, Ala., Norman Goldberg, Frank E. Schwelb, Civil Rights Div., U. S. Dept, of Justice, Washington, D. C., for plaintiff-appellant.
    James Garrett, Montgomery, Ala., for def endants-appellees.
    Before COLEMAN, MORGAN and RONEY, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

In a civil action, the United States charged the Pelzer Realty Company, Inc., and its president, William G. Thames, with violating Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq. (the Fair Housing Act). The complaint alleged that the defendants refused to sell homes to black people and discriminated against them in the terms and conditions of the purchase of dwellings. Jurisdiction was asserted under 42 U.S.C. § 3613 and 28 U.S.C. § 1345

The district court decided the case on the pleadings, affidavits, stipulations and depositions. It found that no discrimination was shown, denied relief and dismissed the complaint. We reverse.

I

The Complaint

In its complaint the United States alleged that the defendants pursued a policy and practice of discrimination by (1) refusing to sell homes to black persons and by (2) discriminating against black persons in the terms and conditions of the purchase of a dwelling. Furthermore, the United States alleged that “[t]he denial to black persons of the right to equal opportunity in housing described in this complaint raises an issue of general public importance.” The United States sought to enjoin the defendants from (1) “discriminating against any person in relation to the sale of a dwelling on account of race, color, religion, or national origin; and (2) failing or refusing to take all necessary and appropriate affirmative steps to correct the continuing effects of its discriminatory practices.”

II

Facts of the Case

A. Barnett & Marshall.

The complaint is based primarily on the defendants’ treatment of two black men, Nexton Marshall, Jr. and Arthur Barnett. On May 20, 1970, Marshall, assistant to the president of Alabama State University, saw a Pelzer Realty Co. advertisement for homes in Seth Johnson Estates, in Montgomery, Alabama. He then called his friend, Barnett, head of the placement office at Alabama State, who was also interested in buying a house. Marshall arranged for his wife, Barnett and Barnett’s wife to meet a Pelzer agent, Charles Flanagan, at Seth Johnson Estates to look at the homes. After that meeting, the Bar-netts and the Marshalls decided they wanted to buy homes from Pelzer in Seth Johnson Estates.

The next day Marshall and Barnett met with Flanagan and defendant Thames at the Pelzer Realty offices in Montgomery. At that meeting, Thames told Marshall and Barnett that if he sold two of his 12 vacant houses in Seth Johnson Estates to them he would have a hard time selling the rest of the houses. Thames also offered to build identical houses for the two men at the same price in another part of town. (Thames’ lawyer later suggested to a lawyer representing Barnett and Marshall that Thames was willing to build identical homes for the men at the same price “in any black neighborhood.”) At the same meeting Thames told the men they could probably force him to sell them the houses by suing him, but that he could tie the case up in court for so long they would no longer want the houses.

It was then agreed (at Marshall and Barnett’s suggestion) that the two men would try to find other purchasers. Thames told them that if they found seven other purchasers he would not charge them closing costs and that if they could not find the other purchasers they would have to pay closing costs.

Between May 21 and June 5 Barnett and Marshall tendered token binder checks to Pelzer and signed purchase contract forms (offers to buy). These forms were never signed by Thames, so a contract was never formed.

By June 5, 1970, buyers for the other houses had not been found, and Thames told the two men that unless they found the additional buyers they would have to pay the closing costs on their homes. Thames also said that he wanted a $500 binder from each of them. These additional binders were never paid.

About June 10, Thames told Flanagan that he had found that Barnett had once dishonored a purchase agreement with another realtor, and that he (Thames) thought the two men were just testing the market. He instructed Flanagan to tell the two men that the houses had been sold, withdraw the offers and return the token binders. Thames also, as the district court found, entered into fictitious contracts to sell the houses in which Barnett and Marshall were interested. The district court found that this sham was for the purpose of foreclosing the right of Barnett and Marshall to recontract for the houses.

B. Closing Costs.

The second phase of the government’s case against the defendants consists of evidence that Pelzer as a general practice charged closing costs to black buyers but not to white buyers. All of Pel-zer’s Montgomery customers were white, and all its Tuskegee customers were black. It also found that although white buyers in Montgomery usually paid no closing costs and black buyers in Tuskegee always did, this practice was caused by variations in the geographical markets and not by racial discrimination.

C. Letters.

Finally, the government introduced into evidence several letters sent out by Pelzer to prospective customers and argued that the letters Pelzer sent to customers who identified themselves as black were less enthusiastic and helpful than the letters sent to prospective purchasers who did not identify themselves as black. The court found no merit to this argument.

Ill

Violations of Title VIII

Although the district court found the facts in this case to be substantially similar to the above summary, it concluded that Barnett and Marshall had not been discriminated against because Thames never refused to sell them the houses. In fact, the court found that he specifically admitted that the law forced him to sell them the houses. But we conclude that Thames committed at least three violations of the Fair Housing Act.

A. Grudging acceptance of a customer can hardly be equated with the aggressive sales techniques used by Thames and his agents on other occasions. The court below found that, “Flanagan told Barnett that because Seth Johnson was a white neighborhood, there might be problems with the sales. .” At the meeting the next day, the court found, “it was agreed that Thames had 12 vacant houses in Seth Johnson Estates and that, if he sold one or two of them to blacks, he would have a very difficult time selling the others. .” It was at this same meeting that Thames told the two men that they could force him to sell them the houses, but he might tie the case up in litigation for so long they wouldn’t want the houses when it was over.

Thames violated § 3604(a) when he offered to build identical houses for them in another part of town, and when he threatened to force them into litigation before selling the houses. (This is not to say that a person cannot indicate an intention to challenge a law he believes in good faith to be unconstitutional or otherwise invalid. But that was not what Thames had in mind, since he told Barnett and Marshall they would probably win by suit.) By these statements, Thames and Flanagan let the two men know that they were not particularly welcome as customers, and, while they could get the houses if they really wanted them, they would have trouble doing so. This attitude, which we take to be an honest appraisal of the salesmen’s sentiments, certainly had an effect on the two men, and upon their willingness and ability to bargain with Thames. In addition, the statements paved the way for Thames’ manipulation of the closing costs.

B. One of the government’s crucial assertions in this case is that the two black men were required to find other buyers before Thames would pay their closing costs, but white purchasers of Pelzer homes never paid closing costs. There was uncontradicted evidence in the record that no other buyers of Seth Johnson homes paid closing costs, nor were any white buyers asked to find other buyers. Defendants, however, emphasize that closing costs are an element to be bargained about just like any other aspect of a contract, and that they charged buyers closing costs whenever the market would permit.

This outwardly appealing argument contains two flaws. First, in its advertisements for homes in Montgomery, and in some of its correspondence, Pelzer advertised that it paid closing costs for its customers. Even if this policy were nothing more than a gimmick to attract buyers, the practice of Pelzer in Montgomery was to pay closing costs, and defendants’ treatment of Barnett and Marshall was a departure from this practice.

Second, it is apparent from the nature of Pelzer’s business that payment of closing costs was not merely a gimmick. Most Pelzer homes were relatively inexpensive, the company doing a large portion of its business with military families. Nearly all Pelzer homes were financed with government loans, either through the Veterans Administration (VA) or the Federal Home Administration (FHA). Such homes must be appraised by a government appraiser. See 12 U.S.C. § 1709, 38 U.S.C. § 1810. Thus, when a home is financed entirely by one of these loans, the cash price of the home is partially removed from the bargaining, and the question of who pays the closing costs becomes extremely important. For this reason, the payment of closing costs by the realtor in this situation is not merely a sales gimmick, but a means of price competition.

The district court found that “no white man was ever given the opportunity to save closing costs (including prepaid items), though Thames did, at a later date, advertise that he would waive ■ closing costs on purchase of certain homes.” But it appears that the court meant that no white was ever given the opportunity to save closing costs by going out and soliciting other buyers. There was no evidence introduced that any other buyer of a home in Seth Johnson Estates ever had to pay closing costs at all. In fact, two affidavits from white residents of Seth Johnson stated that they did not pay closing costs and that they were not asked by Thames to seek other purchasers.

We find that Thames’ demand that Barnett and Marshall find other buyers before they could avoid payment of closing costs was discriminatory treatment, and we find further that this discriminatory treatment was racially motivated. It therefore violated 42 U. S.C. § 3604(b). The district court found specifically that “these circumstances would not have occurred in a proposed sale to a white.” We agree.

We need not and do not find that racial prejudice dominated Thames’ mind during the negotiations. It is enough that race was one significant factor he considered in his dealings with the men. Defendants and their attorney continually reiterated Thames’ concern with his financial investment in the unsold houses in Seth Johnson Estates. We do not doubt that his primary goal was to make money, not to violate the Fair Housing Act. But it is not necessary to show that Thames intended to deprive Barnett and Marshall of rights granted by the Act. A violation occurred because his words had that effect. United States v. Mintzes, D.Md., 1969, 304 F.Supp. 1305. See also, Banks v. Perk, N.D.Ohio, 1972, 341 F.Supp. 1175.

C. The district court correctly found that “Thames entered into a fictitious contract to sell the houses” and that “[t]his sham was obviously for the purpose of foreclosing the right of Barnett and Marshall to recontract for one or inore of the houses.” This finding is repeated verbatim in both the district court’s findings of fact and conclusions of law, except that in the conclusions of law the word “fictitious” is replaced with the word “dummy.” Either way, we agree.

The court, however, declined to find that this deception was racially motivated and violative of § 3604(a) because it might have been carried out “to avoid the necessity of a personal slight to Mr. Marshall or to Mr. Barnett or to avoid possible ill will involved in refusing to sell to Mr. Marshall or Mr. Barnett because they both appeared to be facing credit problems. . . .” The court then adds, “No court should infer bad faith or a bad will when good faith or good will is equally as logical under the circumstances.”

With due respect to the district court, we do not feel that good faith or good will is equally logical under the circumstances of this case. Thames and Flanagan had already informed Barnett and Marshall about the trouble they were causing by trying to buy the houses. Thames had already let them know that he wanted them to go out and sell the houses, presumably to other blacks, so that he wouldn’t be unable to sell the rest of the houses to whites after selling two houses to blacks. Thames had already told the men that they had the right to take him to court, but that the resulting suit would be long and costly. No white person was ever forced to go through all these dealings with Thames and Flanagan. We are unable to reach any conclusion other than this: that Barnett and Marshall were treated differently than other Pelzer customers. The sham sales contract and the deceptive sign placed outside the houses fit perfectly into the pattern of discrimination Barnett and Marshall were subjected to, and this court is drawn inexorably to the conclusion that these actions were racially motivated. The placing of “sold” signs in front of the houses in order to foreclose the right of Barnett and Marshall to recontract for the houses violates 42 U.S.C. § 3604(a).

In addition to defendants’ dealings with Barnett and Marshall, we have also considered the district court’s findings with respect to the variations in closing costs between Montgomery and Tuskegee, and with respect to the letters written to prospective customers. We find no error in the district court’s findings in these two areas.

IV

Enforcement by the Attorney General

In order to bring an enforcement action under § 3613, one of two requirements must be met. One possibility is that the Attorney General must have reasonable cause to believe that a person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights granted by the Fair Housing Act. The second possibility is that he must have reasonable cause to believe that any group of persons has been denied any of the rights granted by the Act and that such denial raises an issue of general public importance. In his complaint the Attorney General alleged fulfillment of both of these requirements, although only one is required.

The district court, finding that no discrimination existed, never reached the issue of compliance with § 3613, except in one sentence of its opinion: “While the government’s proof tends to show that this isolated set of circumstances resulted in possible discriminatory treatment of two blacks in seeking to buy houses from Mr. Thames (more properly, from Pelzer Homes, a nondefendant), it has not been proved that such was a part of a pattern or practice of discrimination or that the blacks were prejudiced thereby.”

In a case which concerned violation of a different subsection of § 3604, a Maryland district court correctly cited United States v. Mayton, 335 F.2d 153, 158 (5 Cir., 1964) for the proposition that, “The words pattern or practice were not intended to be words of art.” United States v. Mintzes, supra, 304 F. Supp. at 1314. The court went on to note that the Fair Housing Act provided alternative remedies for its violation, and in considering the appropriateness of a remedy under § 3613, a court should look to the feasibility of alternative remedies. The court said that “in such a case as this conciliation has little or nothing to work on and a private civil action would be prohibitively expensive for the parties to whom the representations were made, who do not stand to gain or lose any money or property by the outcome of such a suit.” Id.

This is a similar situation. The Act has been violated. A private suit by Barnett or Marshall would yield nothing to the two men. The Attorney General and his staff have determined that the case is sufficiently important that they have decided to bring their own suit to enforce the provisions of the statute. The case is a good example of the kind of action which should be brought by the government when violations of the Act are brought to its attention.

It is true that a court must exercise independent judgment as to whether the requirements of § 3613 are fulfilled before granting relief to the government in a suit such as this one. The Attorney General is not authorized to enjoin any violation of the Fair Housing Act; if he were, the requirements of § 3613 would be meaningless. We do feel, however, that a court’s standard of review of the Attorney General’s decision to bring an action under § 3613 should be a limited one. There need not be an actual pattern or practice of resistance or an actual denial that raises an issue of general public importance. The only requirement is that the Attorney General have reasonable cause to believe that such conditions exist.

To fulfill the “pattern or practice” requirement, the discriminations must result from more than an isolated or accidental or peculiar event. United States v. West Peachtree Tenth Corp., 5 Cir. 1971, 437 F.2d 221, 227. See United States v. Hunter, 4 Cir. 1972, 459 F.2d 205, 217. The government must show that any discriminatory act by the defendants was not an isolated or accidental departure from otherwise nondiseriminatory practices.

Under either of these tests, the defendants’ actions in this case qualify as a pattern or practice. The case is not based on a single remark made to Marshall and Barnett during a long series of negotiations. It is not based on an offhand comment made to one person on a single occasion. The government’s complaint is based on the treatment received by two men over a period of several weeks. Several of the remarks were repeated by different people at different times, and the defendant Thames had plenty of time to reflect on the deal he offered the two men. The record shows that he was, in fact, quite concerned about this transaction. Thames was attentive to what was happening; nothing slipped by him. The treatment received by Barnett and Marshall resulted from the policy of Pelzer Realty Company, as enunciated and implemented by its president, Thames.

In view of our finding that the Attorney General could reasonably have believed that a pattern or practice of discrimination was engaged in, we need not reach the question of whether there was reason to believe that a group of persons had been denied rights guaranteed by the Fair Housing Act.

V

Standard of Review

We are thus forced to conclude that the district court erred in finding that Barnett and Marshall were not discriminated against in their dealings with Thames and Flanagan. In reaching this conclusion, we have used nearly all the findings of fact of the district court as they are presented in its opinion. We have merely chosen to place different emphasis on some of the facts, which we have described above. In general, we do not disagree with the findings of fact made by the district court. We do, however, feel that the court failed to attribute the proper degree of significance to certain actions of Pelzer Realty Company and its agents.

In considering the government’s appeal, we are aware of the fact that the case was submitted to the district court on the pleadings, stipulations and depositions. Nevertheless, we must leave the district court’s findings of fact undisturbed unless we find them to be “clearly erroneous.” F.R.Civ.P., Rule 52(a). Volkswagen of America, Inc. v. Jahre, 5 Cir. 1973, 472 F.2d 557. However, we are able to consider everything that the trial judge was able to consider.

The appellant’s burden, under Fed. R.Civ.P. 52(a), of showing that the trial judge’s findings of fact are ‘clearly erroneous’ is not as heavy as it would be if the case had turned on the credibility of witnesses appearing before the trial judge . . . Sicula Oceanica, S. A. v. Wilmar Marine Eng. & Sales Corp., 5 Cir. 1969, 413 F.2d 1332, 1333.

The only finding of fact of the trial judge which we feel compelled to find clearly erroneous under Rule 52(a) is his finding that the defendants did not refuse to sell the houses to Barnett and Marshall.

The Simla Oceánica ease teaches that it is our duty, when these cases are presented for review, to study the entire record thoroughly and to determine whether we are “left with the definite and firm conviction that a mistake has been committed.” (citation omitted) Volkswagen of America, Inc. v. Jahre, supra.

In this case, we are left with the definite and firm conviction that the defendants refused to sell the two houses to Barnett and Marshall. In an ordinary situation, a real estate dealer tries to give a customer every opportunity to complete a transaction, consistent with maintaining his investment. He does not put “sold” signs in front of a house before it is really sold. That kind of action is not consistent with common sense or ordinary business practices. To reemphasize what the district court said in its opinion, “[T]hese circumstances would not have occurred in a proposed sale to a white. . . . ”

Conclusion

The relief requested by the government in this case is really very limited. To demand that the defendants stop “discriminating against any person in relation to the sale of a dwelling on account of race, color, religion, or natural origin” is asking nothing more than that they comply with the law as it has been enacted by Congress. The second prong of the relief is nothing more than a demand that the defendants neutralize whatever may have been the effects of their past noncompliance with the Act. Even Mr. Thames testified that he was not sure whether he had discriminated against blacks in the past. We are sure that in this spirit of compromise and reconciliation, the parties and the district court will be able to work out a decree not inconsistent with this opinion.

Reversed and remanded.

      . 42 U.S.C. § 3604 provides in pertinent part:
      As made applicable by section 3603 of this title and except as exempted by sections 3603(b) and 3607 of this title, it shall be unlawful—
      (a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, or national origin.
      (b) To discriminate against any person in the terms, conditions, or provisions of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, or national origin.

      . 28 U.S.C. § 1345 provides :
      Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.
      42 U.S.C. § 3613 provides:
      Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights granted by this subchapter, or that any group of persons has been denied any of the rights granted by this subchapter and such denial raises an issue of general public importance, he may bring a civil action in any appropriate United States district court by filing with it a complaint setting forth the facts and requesting such preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or persons responsible for such pattern or practice or denial of rights, as he deems necessary to insure the full enjoyment of the rights granted by this sub-chapter.

      . The district court in its pretrial order permitted the case to be so submitted. Rule 16, Fed.R.Civ.P.

      . The exact number is disputed.


author: PER CURIAM.

text:
    Thomas Wayne MILLIGAN, Appellant, v. Laurie Ann MILLIGAN, Appellee.
    No. 73-1382.
    United States Court of Appeals, Eighth Circuit.
    Submitted July 26, 1973.
    Decided July 26, 1973.

      Paul A. Kyyhkynen, Minneapolis, Minn., for appellee.
    Before HEANEY, BRIGHT and ROSS, Circuit Judges.
   PER CURIAM.

Thomas W. Milligan was a defendant in a divorce action brought by Laurie Ann Milligan in the Minnesota courts. Mr. Milligan attempted to remove the action to federal court, but after a hearing, the action was remanded to state court. Mr. Milligan appealed to this Court and Mrs. Milligan has filed a motion for summary affirmance of the order of remand pursuant to Rule 8 of the Rules of this Court. We grant the motion.

On March 16, 1973, a hearing was held in state court on a motion for temporary relief. Mr. Milligan was ordered to pay temporary child support and attorney’s fees. He was ordered to move from the couple’s home and to give up, temporarily, possession of the family auto. Mrs. Milligan was awarded temporary custody of the children.

On April 12, 1973, Mr. Milligan filed a petition for removal of the action to federal court. The substance of the petition was that the prior state court order was the product of unlawful sex discrimination since both parties stood on an equal footing in all respects, including employment experience, income earned, and ability to care for the children. A hearing was held and the district court found that the action was not subject to removal. The court then ordered the action remanded to state court.

In granting the pending motion, we make the following comments:

a. Removal cannot be maintained in this case under 28 U.S.C. § 1441(a) since the citizenship of the parties is not diverse. Blank v. Blank, 320 F.Supp. 1389, 1390 (W.D.Pa.1971).
b. Removal cannot be maintained in this action under 28 U.S.C. § 1441(b) since divorce actions do not engender a federal question, Blank v. Blank, supra, at 1390-1391 & n. 3, and, removal-cannot be maintained where the defendant sets up a federal law as a defense to a nonfederal claim. C. WRIGHT, LAW OF FEDERAL COURTS § 38 at 131 (1971).
c. Normally orders of remand are not reviewable on appeal, except in civil rights cases. LAW OF FEDERAL COURTS, supra, § 41 at 147. 28 U.S.C. § 1447(d).
d. Removal cannot be maintained in this case under 28 U.S.C. § 1443 because removal must be predicated upon a specific right under a law in terms of racial equality. Commonwealth of Pennsylvania ex rel Gittman v. Gittman, 451 F.2d 155, 156 & n. 3 (3d Cir. 1971).

For the foregoing reasons the motion for summary affirmance is hereby granted.

      . Although the motion is denominated a motion pursuant to Rule 9 of the Rules of this Court, we think it proper to consider the motion as one in the nature of a Rule 8 motion,


author: PER CURIAM:

text:
    Denis HANLY, et al., Plaintiffs-Appellants, v. Richard G. KLEINDIENST, as Attorney General of the United States, et al., Defendants-Appellees.
    No. 1128, Docket 73-1948.
    United States Court of Appeals, Second Circuit.
    Argued Aug. 17, 1973.
    Decided Sept. 10, 1973.
    Alfred S. Julien, New York City (Jesse Alan Epstein, New York City, of counsel), for plaintiffs-appellants.
    Joseph P. Marro, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., for the S. D. of New York), for defendants-appel-lees.
    Before MULLIGAN, OAKES and TIMBERS, Circuit Judges.
   PER CURIAM:

This is an appeal from a denial of a preliminary injunction which sought to halt the construction of the Metropolitan Correction Center, one of two buildings comprising the Foley Square Courthouse Annex. Except for one point, discussed below, we would affirm the judgment of the lower court solely on the basis of Judge Tenney’s well reasoned opinion. Judge Tenney held, quite properly we think, that the General Services Administration (GSA) did not act arbitrarily or capriciously in determining, by a supplemental report filed April 6, 1973, reaffirming previous findings, that the Annex would not significantly affect the quality of the human environment under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, and more specifically § 4332(2) (C), as well as under the decisions of this court in Hanly v. Mitchell, 460 F.2d 640 (2d Cir.), cert, denied, 409 U.S. 990, 93 S.Ct. 313, 34 L.Ed.2d 256 (1972) , and Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972), cert, denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973) .

One point, however, was raised on appeal which was not before the lower court. This involves two identical letters sent by GSA, one to Mayor Lindsay and the other to Governor Rockefeller. Appellants claim that the letters constitute an admission by GSA of the significant effect the Annex would have on the environment, thus requiring an impact statement under NEPA. We do not find the letters to be such.

The terms of the last sentences of the letters do not constitute any admission that GSA had found there would be significant impact on the community; rather they refer to “any project which may have a substantial impact on the community.” (Emphasis supplied.) Nor do we believe that these sentences, which appear to be matters of form unrelated to the specifics of the case, were intended to evidence that the GSA Regional Administrator, under whose name they went out, had reached any conclusion on the question whether the Annex would significantly affect the environment.

Consultation and coordination between federal and local officials involving the acquisition of land and construction of a building in an urban environment, especially concerning plans for water supply, sewage disposal, solid waste disposal, etc., should be done as a matter of common sense; it is also required by law. See 40 U.S.C. § 533. And there is no limitation that this be done only when such projects significantly affect the community or its environment.

Deciding as we do that these letters are not admissions by GSA of any significant impact on the community, we need not reach the question whether an action “having a significant impact on community development” under § 401(a) of the Intergovernmental Cooperation Act of 1968, 42 U.S.C. § 4231(a), constitutes an action “significantly affecting the quality of the human environment” under NEPA, thereby requiring an impact statement.

Judgment affirmed.

      . The letters begin with an identification of the parcel of land involved, continue with descriptions and data relative to the buildings in the Annex, including plans for utility services, and finish with the following sentences :
      The Intergovernmental Cooperation Act of 1968, and administrative directives of the President, direct that there be consultation with the appropriate officials in the planning of any federal project which may have a substantial impact on the community.
      Therefore, we would appreciate your cooperation and comments in this endeavor.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Pullarao PENTAPATI, Defendant-Appellant.
    No. 73-1779
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 5, 1973.
    Melvyn Kessler, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Lawrance B. Craig, III, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

Defendant appeals from his conviction on a two count indictment charging him with knowingly and intentionally (1) importing sixty-six grams of cocaine into the United States in violation of 21 U.S.C. § 952(a), and (2) possessing that controlled narcotic with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1). Defendant argues that, as a purely foreign trafficker in narcotics, he is outside the intended ambit of these provisions of the federal narcotic control laws. Finding that the facts of this case do not support defendant’s elaborate legal construction, we affirm.

This case was tried to the court largely on the basis of stipulated facts. The Government, defendant, and defendant’s counsel agreed, inter alia, that defendant arrived in Miami, Florida from Bogota, Colombia on December 25, 1972; and that, at the time he disembarked, defendant knowingly and intentionally possessed sixty-six grams of cocaine. Defendant attacks his conviction for narcotics importation under 21 U.S.C. § 952(a) on the ground that he was merely an international in-transit passenger and could not, therefore, “import” any substance into the United States within the meaning of the statute. This argument is utterly without support in the facts. We are not faced here with the case of the true in-transit passenger who is never brought under the control of the customs authorities. It has been stipulated that defendant left a plane in Miami and, while going through customs, was subjected to a lawful search which netted cocaine. Defendant’s allegation of his intention to depart the United States immediately, even if incontrovertibly established, is of no consequence. The statute looks to the fact of bringing a controlled narcotic within the territorial jurisdiction of the United States, and not to the alleged importer’s subsequent plans. See Daut v. United States, 9 Cir., 1968, 405 F.2d 312, cert, denied, 402 U.S. 945, 91 S.Ct. 1624, 29 L.Ed.2d 114; Pineda v. United States, 5 Cir., 1968, 393 F.2d 139, cert, denied, 392 U.S. 943, 88 S.Ct. 2327, 20 L.Ed.2d 1405; United States v. Morello, 2 Cir., 1957, 250 F.2d 631.

On the second count, charging possession of a narcotic with intent to distribute in violation of 21 U.S.C. § 841 (a) (1), defendant contends that the Government has presented no evidence of an intent to distribute the cocaine within the United States. It is far from clear on the basis of the statute that § 841(a) (1) is meant to reach only the case of an individual who possesses a controlled narcotic in the United States and intends to distribute it here also. However, we need not decide that question of interpretation. This case was argued to the district court on the theory that the statute required an intent to distribute in this country, and the trial judge specifically found an intention to distribute. There is ample evidence to support such a finding.

There was evidence showing that when defendant landed in Miami on December 25 he had in his possession two airline tickets. One booked an open passage to London; the other ticket was dated for that day to Chicago, Illinois. A customs agent testified that defendant had indicated to her that he was planning to fly to Chicago before travel-ling to London and that the sixty-six grams of cocaine were not for his personal consumption, but were intended to be used as samples in setting up a subsequent sale. The trial court was not required to believe defendant’s further contention that he had intended to keep the samples inviolate awaiting a European connection. Consequently, even granting that 21 U.S.C. § 841(a) (1) requires proof of intended American distribution, a matter on which we indicate no opinion, defendant’s conviction on this count withstands attack.

Affirmed.

      . There was substantial evidence indicating that defendant intended a sojourn of some distance within the United States despite his contention to the contrary, for 'at the time of his arrest defendant had in his possession an airline ticket to Chicago, Illinois.


text:
    Louis F. ARCIERI, Plaintiff-Appellee, v. The ERIE LACKAWANNA RAILWAY COMPANY, Defendant-Appellant.
    No. 72-1872.
    United States Court of Appeals, Sixth Circuit.
    Argued June 4, 1973.
    Decided Aug. 29, 1973.

      Robert C. McFadden, Arter & Hadden, Cleveland, Ohio, for defendant-appellant.
    Harold H. Sayre, Metzenbaum, Gaines, Finley & Stern, Cleveland, Ohio, for plaintiff-appellee.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and PECK, Circuit Judges.
   PER CURIAM.

The validity of a six-member jury, prescribed by a local District Court rule, is challenged on this appeal for the first time in this Circuit. The case was tried before a jury of six. Neither party requested a six member jury nor agreed to it.

In Colegrove v. Battin, 413 U.S. 149, 93 S.Ct. 2448, 37 L.Ed.2d 522 (June 21, 1973), the Supreme Court held that a local court rule providing that a jury for the trial of civil cases shall consist of six persons comports with the Seventh Amendment requirement and the coextensive statutory requirement of 28 U.S.C. § 2072, and is not inconsistent with Rule 48, Fed.R.Civ.P. Upon authority of that decision, we hold that the six-member jury rule applied in the present case is valid.

This is an appeal from a jury verdict for the plaintiff in a Federal Employers’ Liability Act case. 45 U.S.C. § 51 et seq.

The railroad did not present any direct evidence as to the circumstances surrounding the accident, but concentrated its defense on the issue of damages. The jury returned a verdict for the plaintiff of $140,000. The District Court ordered a remittitur of $14,000. The railroad appeals.

It is contended that the District Court erred in limiting its grant of remittitur to $14,000 and that the judgment for plaintiff was contrary to the manifest weight of the evidence. In Gault v. Poor Sisters of St. Frances, 375 F.2d 539, 548 (6th Cir. 1967), this court held that refusal of a District Court to grant a remittitur may be reviewed only to determine if the verdict is grossly excessive or “shocking to the conscience.” Here the injured employee was 53 years old at the time of his injury and 56 when the verdict was returned. There was competent evidence that plaintiff is permanently deprived of the opportunity to obtain future gainful employment. In view of the evidence as to his injuries, loss of future earnings and the right of the jury to award damages for pain and suffering, we cannot say that a judgment for $126,000 is grossly excessive or shocking to the conscience of the Court. See, Grunenthal v. Long Island R. R. Co., 393 U.S. 156, 89 S.Ct. 331, 21 L.Ed. 2d 309 (1968).

All other contentions of the railroad have been considered and we find no reversible error.

Affirmed.


text:
    CAPE HENRY BIRD CLUB, an unincorporated association, et al., Appellants, and Conservation Council of Virginia, Inc., and National Wildlife Federation, Inc., et al., Intervening Plaintiffs, v. Melvin R. LAIRD, Secretary of Defense of the United States of America, et al., Appellees. CAPE HENRY BIRD CLUB, an unincorporated association, et al., Plaintiffs, and National Wildlife Federation, Inc., et al., Appellants, v. Melvin R. LAIRD, Secretary of Defense of the United States of America, et al., Appellees.
    Nos. 73-1606, 73-1607.
    United States Court of Appeals, Fourth Circuit.
    Argued Aug. 13, 1973.
    Decided Sept. 18, 1973.
    Gladys Kessler, Washington, D. C. (Berlin, Roisman & Kessler, and Oliver Houck, Washington, D. C., on brief), for appellants in Nos. 73-1606 and 73-1607.
    Dirk D. Snel, Atty., U. S. Dept, of Justice (Wallace H. Johnson, Asst. Atty. Gen., Leigh B. Hanes, Jr., U. S. Atty., Paul R. Thompson, Jr., Asst. U. S. Atty., Edmund B. Clark and Irwin L. Schroeder, Attys., U. S. Dept, of Justice, on brief), for Federal appellees in Nos. 73-1606 and 73-1607.
    Erwin S. Solomon, Hot Springs, Va. (Erwin S. Solomon & Associates, on brief), for appellee, Bd. of Supervisors of Bath County, Va., in Nos. 73-1606 and 73-1607.
    William T. Wilson, Covington, Va., for appellee, Covington-Alleghany County Chamber of Commerce, Inc., and James River Basin Assn, in Nos. 73-1606 and 73-1607.
    C. B. Mattox, Jr., City Atty., and James R. Saul, Asst. City Atty., on brief for appellee, City of Richmond.
    William E. Carson, City Atty., on brief for appellee, City of Covington, Va.
    C. W.' Allison, Jr., Commonwealth Atty., Covington, Va., on brief for appel-lee, Alleghany County, Va., in Nos. 73-1606 and 73-1607.
    Before HAYNSWORTH, Chief Judge, and FIELD and WIDENER, Circuit Judges.
   PER CURIAM:

We believe that the district court correctly decided the issues raised in this appeal, and we affirm on the basis of the district court’s opinion, 359 F.Supp. 404.

In our view, sections 1252(b)(1) and (b)(3) of the Federal Water Pollution Control Act Amendments of 1972, by their very terms, are not applicable to this project. The dam is neither in the survey or planning stage, nor is it before Congress for authorization or construction. Those stages have long since passed.

Inasmuch as the requirements of the National Environmental Policy Act, 42 U.S.C. § 4331 et seq., are applicable to this project, the district judge quite appropriately ordered the Corps of Engineers to supplement their final Environmental Impact Statement so as to include the view of the Administrator of the Environmental Protection Agency. His view was that the 1972 Amendments were applicable and that no value for water quality storage could be assigned as a benefit in the dam project. The Environmental Impact Statement will appropriately reflect those views.

Affirmed.

      . 33 U.S.C. 1252.
      Those sections provide that:
      (b) (1) In the survey or planning of any reservoir by the Corps of Engineers, Bureau of Reclamation, or other Federal agency, consideration shall be given to inclusion of storage for regulation of streamflow, except that any such storage and water releases shall not be provided as a substitute for adequate treatment or other methods of controlling waste at the source.
      (b) (3) The need for, the value of, and the impact of,fr storage for water quality control shall be determined by the Administrator, and his views on these matters shall be set forth in any report or presentation to Congress proposing authorization or construction of any reservoir including such storage.


author: CONTI, District Judge.

text:
    UNITED STATES of America, Appellee, v. Richard David GERSTLE, Appellant.
    No. 73-1298.
    United States Court of Appeals, Ninth Circuit.
    Sept. 6, 1973.

      Sull Lawrence (argued), Beverly Hills, Cal., for appellant.
    John W. Cameron, Asst. U. S. Atty. (argued), Robert L. Meyer. U. S. Atty., Los Angeles, Cal., for appellee.
    Before MERRILL and WALLACE, Circuit Judges, and CONTI, District Judge.

       Honorable Samuel Conti, United States District Judge, Northern District of California, sitting by designation.

   CONTI, District Judge.

Defendant, in this selective service case, was convicted after court trial on two counts of refusal to submit to induction, and has appealed.

Defendant was classified I-A in December, 1970, and did not appeal that classification. On April 6, 1971, he was mailed an order to report for induction on April 20, 1971. He filed a Form 150 for Conscientious Objectors on April 16, 1971. His induction was then postponed until June, 1971. On April 22, 1971, the local board refused to reopen his classification and stated in a letter to defendant that it did not “specifically find that there has been a change in status resulting from circumstances over which you had no control.” (SSF 82) Defendant was then ordered to report for induction on May 25, 1971. On May 24, 1971, he applied for a ministerial deferment. Induction was again delayed and again the local board refused to reopen. Induction was set for November 15, 1971, and defendant failed to report. He was again ordered to report on May 23, 1972, and again failed to report.

Defendant’s appeal is based upon several arguments which will be dealt with below:

(1) Re the C. O. Claim

Appellant makes the argument that the Board was obligated to reopen his classification when he filed his claim after notice of induction. This argument has no merit. In addition, the local board was not required to give reasons for denial of the reopening. Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971).

Appellant further argues that the postponement of his induction to an indefinite date required that the board reopen, whether or not there is a finding of changed circumstance. There is no support for this argument and the court is not persuaded. There was no cancellation of the induction order, nor was there a de facto reopening. In addition, the delay of induction (actual delay was thirty-five days) did not cancel the induction order. United States v. Stow, 474 F.2d 1132 No. 72-1651 (9th Cir. March 8, 1973).

(2) Re the Ministerial Claim

The ministerial claim was also filed after receipt of a notice of induction and the board refused to reopen. Such a claim does not involve a circumstance over which the registrant has no control. Reopening was properly denied. United States v. Maciel, 469 F.2d 718 (1972).

Affirmed.


text:
    Carl John CONNOLLY and Paul Connolly, Plaintiffs-Appellants, v. William V. FARMER, Individually, and as surviving husband of Edith P. Farmer, Defendant-Appellee.
    No. 73-2243
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 12, 1973.
    Kenneth Johnson, Wichita Falls, Tex., for plaintiffs-appellants.
    Jack G. Banner, Wichita Falls, Tex., L. Royce Coleman, Jr., Denton, Tex., for defendant-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

This is an appeal by the plaintiff in a personal injury action in which jurisdiction is founded on diversity of citizenship. Plaintiff was denied all recovery following a jury trial; and the only point of error alleged is that the district judge incorrectly excluded the testimony of a doctor and certain tape recordings containing statements made by plaintiff while under hypnosis. Finding that the ruling below, even if held to be error, did not affect “the substantial rights of the parties,” we affirm. Rule 61, F.R.Civ.P.

This case arose from a tragic automobile accident in Clay County, Texas, on December 21, 1970. Originally both parties brought suit and the cases were consolidated for jury decision. During the trial, however, the actions were severed by mutual agreement, and the instant cause was tried to the jury already impaneled. One hotly contested issue at the trial was the speed at which plaintiff was driving at the time of the accident. Since the parties agreed that the collision occurred while defendant was in the process of making a left turn across plaintiff’s lane, plaintiff’s rate of speed was crucial for determining both defendant’s exercise of due care and plaintiff’s contributory negligence.

Defendant produced several witnesses who testified that plaintiff was going very fast, approximately 90 miles per hour. In the early stages of the trial, plaintiff claimed to be suffering amnesia, and therefore did not contradict or confirm these allegations. A Dr. Humphrey had examined plaintiff, and he testified that the amnesia was legitimate. Plaintiff’s counsel also wanted the doctor to testify to the statements that plaintiff made while under hypnosis and to produce the tapes of those sessions. The doctor’s testimony and the tapes would have indicated plaintiff’s contention that his speed prior to the accident was only 55 miles per hour. Plaintiff proposes that these statements were admissible under long recognized exceptions to the hearsay rule for doctor-patient communications both as a foundation for the doctor’s conclusion that the amnesia was genuine, and as substantive evidence of the speed. Cf. Atlantic Coast Line R. Co. v. Dixon, 5 Cir., 1953, 207 F.2d 899; Meaney v. United States, 2 Cir., 1940, 112 F.2d 538. The able district judge excluded the testimony, finding it inadmissible as substantive evidence and holding that an instruction limiting the evidence to the question of the validity of the doctor’s opinion would not be sufficient to safeguard against use of the hypnosis-induced statements as evidence of plaintiff’s speed.

Plaintiff argues with some persuasion that, at least insofar as it laid the foundation for the doctor’s expert opinion, the evidence excluded below ought to have been admitted. However, we need decide neither this limited question nor the broader issue of admissibility as substantive evidence. At a later stage in the proceedings following the original offer of proof, plaintiff’s memory was restored, allegedly through the use of post-hypnotic suggestion, and he gave his version of the accident. Under questioning from the defense, and over the objection of his counsel, plaintiff informed the jury in general terms of how much information came from pure memory and how much was revealed to him through hypnosis. In effect, the jury did learn the results of the hypnosis, and no prejudice to plaintiff resulted from the exclusion of either the doctor’s testimony or the tapes.

Affirmed.


text:
    UNITED STATES of America, Appellee, v. Anthony LOWERY, Appellant.
    No. 72-1597.
    United States Court of Appeals, Third Circuit.
    Submitted July 2, 1973.
    Resubmitted Sept. 12, 1973.
    Decided Sept. 13, 1973.

      Gilbert J. Helwig, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for appellant.
    Richard L. Thornburgh, U. S. Atty., Samuel J. Orr, III, Kathleen Kelly Cur-tin, Asst. U. S. Attys., Pittsburgh, Pa., for appellee.
    Before GIBBONS, JAMES HUNTER, III and WEIS, Circuit Judges.
   PER CURIAM:

After considering the contentions raised by appellant (1) that the district court abused its discretion in denying appellant’s motion for reconsideration of his modified sentence and (2) that the modified sentence was illegally imposed since the court failed to make an express finding that appellant would not derive maximum benefit from sentencing under 18 U.S.C. § 5010(b), we find these arguments to be without merit and affirm the district court decision.

Despite this affirmance, we are seriously troubled by appellant’s allegation that he is not receiving treatment as a youth offender as required by 18 U.S.C. § 5011. If this is true, and if the circumstances of appellant’s confinement are no different than those of adult offenders, then we have no doubt that some kind of relief is appropriate. As Mr. Chief Justice Burger has stated, “the basic theory of [the Youth Correction Act] is rehabilitative and in a sense this rehabilitation may be regarded as comprising the quid pro quo for a longer confinement but under different conditions and terms than a defendant would undergo in an ordinary prison.” Carter v. United States, 113 U.S.App.D.C. 123, 306 F.2d 283, 285 (1962). See Harvin v. United States, 144 U.S.App.D.C. 199, 445 F.2d 675, 678-682 (1971) (en banc); United States v. Howard, 146 U.S.App.D.C. 10, 449 F.2d 1086, 1092-1093 (1971) (citing Harvin). See generally United States v. Alsbrook, 336 F. Supp. 973 (D.C.1971); United States v. Lowery, 335 F.Supp. 519 (D.C.1971). Consequently, we remand this ease and order that a hearing be held to determine whether appellant is receiving treatment as mandated by 18 U.S.C. § 5011.

The order of the district court will be affirmed and the case will be remanded for further proceedings in accordance with the instructions in this opinion.


text:
    Matthew EASON, Plaintiff-Appellee-Cross Appellant, v. George L. WEAVER, Defendant-Appellant-Cross Appellee.
    No. 73-1833.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 19, 1973.
    J. Walker Harper, Augusta, Ga., for appellant.
    Albert M. Pickett, O. Torbitt Ivey, Jr., Augusta, Ga., for appellee.
    Before JOHN R. BROWN, Chief Judge, DYER and SIMPSON, 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:

This automobile accident diversity case was tried before the court without a jury and a judgment for the plaintiff Eason was entered in the amount of $195,922.00. The defendant Weaver appealed and argues that, under Georgia law, the district court held him to an improperly high standard of care. Ea-son cross-appealed and asserts that the amount of the judgment is insufficient. We affirm.

The only question with which we must concern ourselves on the main appeal is whether Eason was an invitee in the car rented by Weaver and thus Weaver owed him a duty of ordinary care, or whether Eason was a mere guest and thus Weaver owed him only a duty of slight care. See generally Scarborough v. Murray, 1971, 124 Ga.App. 30, 183 S.E.2d 216; Wright v. Dilbeck, 1970, 122 Ga.App. 214, 176 S.E.2d 715; Nash v. Reed, 1950, 81 Ga.App. 473, 59 S.E.2d 259. The district court, applying Georgia law as it was bound to do, concluded that there was an agreement between Eason and Weaver to share the expense of the rented car for the evening and that this was sufficient to make Eason an invitee entitled to the exercise of ordinary care. A review of the record convinces us that this finding is not only not clearly erroneous, Fed.R. Civ.P. 52(a), but is fully supported by the evidence.

There being no question about Weaver’s failure to exercise ordinary care, the only other issue left for our determination is the adequacy of damages raised by Eason’s cross-appeal. Eason was a young soldier and it was stipulated that the computation of any lost earnings would be based on Army pay scales and promotion records, with it assumed that he would have pursued a career in the Army. The damages awarded include an amount for 50 years of lost wages computed in accordance with present pay-scales and retirement pension rates. Eason points out, however, that an expert witness testified, without contradiction, that enlisted men’s pay scales have historically increased approximately 4% a year and that the Consumer Price Index has increased approximately 3% per year. Thus he argues that his award should have been adjusted from present pay scales to incorporate these historical developments. Additionally, he maintains that 10 U.S.C.A. § 1401a, which requires retirement pay to be adjusted according to changes in the Consumer Price Index, also controls the portion of the award attributable to his retirement pay.

The weight to be accorded unimpeached expert opinion evidence is solely for the judge sitting without a jury. While he may consider such testimony, he is not bound to accept it. We have examined the record carefully, with particular reference to the testimony of the expert witness on military pay scales, and we are unable to conclude that the district court’s computation of lost earnings with reference only to present pay scales was clearly erroneous.

Affirmed.

      . Although it was not properly raised before this court, we have noted Weaver’s argument that the damages should be decreased to reflect Eason’s current pension from the Veterans Administration. We similarly can perceive no clear error in the damage award from this source.


author: DYER, Circuit Judge:

text:
    ASSOCIATED METALS & MINERALS CORPORATION, Plaintiff-Appellee, v. SS PORTORIA, her engines, etc., et al., Defendants, Industriale Maritima S.P.A., Defendant-Appellant.
    No. 73-2332
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 20, 1973.

      Kenneth D. Kuykendall, Charles D. Kennedy, Houston, Tex., for Industríale Marítima.
    Frank Catón, Houston, Tex., for Cob-elfret Lines.
    Ralph M. Sharpe, Jr., Houston, Tex., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, 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.

   DYER, Circuit Judge:

This appeal raises two questions: (1) whether an in rem judgment was properly entered against the SS PORTO-RIA even though the vessel was not arrested; and (2) whether the vessel owner, Industríale Marítima S.P.A., is subject to an in personam judgment as a carrier because the voyage sub-charterer of the vessel issued a bill of lading subscribed “signed as per authority of the Master.” Because the district court erroneously resolved both these questions in the affirmative in granting judgment against the vessel and against the owner, we reverse.

The PORTORIA, owned by Industrí-ale, transported a cargo of wire rod from Antwerp, Belgium to Houston, Texas in February and March 1968. The contract of carriage was entered into between Associated Metals & Minerals Corp., the owner of the cargo, and Cobelfret Lines, the voyage sub-charterer from the time charterer, Skaarup Shipping Corporation. Cobelfret issued a bill of lading containing the clause “signed as per authority of the Master.” Because of alleged rust damage to the cargo, Associated brought this action which resulted in an in rem judgment against the vessel, and an in personam judgment against the owner and the voyage charterer.

It is undisputed that no process in rem was issued, the PORTORIA was not arrested, and the owner did not waive attachment of the vessel. Thus it is clear that the district court erred in entering an in rem judgment against the ship. As we said in Dow Chemical Co. v. Barge UM-23-B, 5 Cir. 1970, 424 P. 2d 307, 311:

[N]o process in rem ever issued against the barge and it was not arrested. Attachment subjecting the res to the jurisdiction of the court is a prerequisite to a finding of in rem liability. Lewis v. Maritime Overseas Corporation, D.Or.1958, 163 F.Supp. 453; 1 Benedict on Admiralty § 11 at p. 20; see Ex Parte Republic of Peru, 1943, 318 U.S. 578, at 587, 63 S.Ct. 793, 87 L.Ed. 1014; The Resolute, 1897, 168 U.S. 437, at 439, 18 S.Ct. 112, 42 L.Ed. 533.

Turning now to the in personam liability of the owner, Industríale contends that since the cargo owner’s cause of action was based on the Carriage of Goods by Seas Act (COGSA), 46 U.S.C. § 1300 et seq., there could be in person-am liability only if the owner was a carrier. Relying on a failure of proof by the cargo owner that the vessel owner granted authority to the voyage charterer to sign the bill of lading on its behalf, Industríale asserts that there was no contract between it and Associated, and that the district court erred in entering an- in personam judgment against it. We agree.

In the recent Second Circuit case of Demsey & Associates v. SS SEA STAR, 2 Cir. 1972, 461 F.2d 1009, even though the words “for the Master” appeared on the bill of lading signed by the agent of the voyage charterer, the court concluded that “[bjecause, however, Atlantic [the vessel owner] did not authorize World Bulk’s agent [the voyage charterer] to issue the bills of lading, Atlantic is not liable in personam.” Id. at 1015. It would seem self-evident that it was cargo’s burden to show that the owner was a party to the contract between cargo and the voyage charterer and its failure so to do establishes that cargo never relied upon the owner to perform the contract of carriage, but relied exclusively upon the voyage charterer to insure the proper carriage of goods. See International Selling Corporation v. Aiden Shipping Company, Ltd, S.D.N.Y.1972, 1972 A.M.C. 669; Tube Products of India v. SS RIO GRANDE, S.D.N.Y.1971, 334 F.Supp. 1039; United Nations Children’s Fund v. SS NORDSTERN, S.D.N.Y.1965, 251 F.Supp. 833; Scrutton on Charterparties and Bills of Lading (17th ed. 1964) p. 51.

Because of our disposition of the case we do not reach the other points raised by cargo. The judgment of the district court is reversed and judgment is rendered in favor of the SS PORTORIA, her engines etc., and Industríale Maríti-ma S.P.A.

Reversed and rendered.

      . Cobelfret Lines, the voyage charterer, did not appeal.

      . Section 1301(a) of COGSA defines a carrier as “the owner or the charterer who enters into a contract of carriage with a shipper.”

      . Cargo’s contention that owner’s counsel made a judicial admission of liability and cargo’s alternative argument premised on tort liability of the owner are without merit.