author: PER CURIAM: RONEY, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John K. BRIGGS et al., Defendants-Appellants.
    No. 72-3459
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 2, 1973.
    Doris Peterson, James Reif, Morton Stavis, Nancy Stearns, c/o Center for Constitutional Rights', New York City, Cameron Cunningham, Brady S. Coleman, Austin, Tex., Larry Turner, Gaines-ville, Fla., attys. for defendants-appellants.
    William H. Stafford, Jr., U. S. Atty., Pensacola, Fla., Stewart J. Carrouth, Asst. U. S. Atty., Tallahassee, Fla., William M. Piatt, Internal Security Div., Dept, of Justice, Washington, D. C., attys. for plaintiff-appellee.
    Before WISDOM, GODBOLD and RONEY, 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 is an appeal from the district court’s decision setting bail for each of the eight named defendants in the amount of $10,000 cash or surety bond and denying defendants’ motion to be released on their personal recognizance or in the custody of counsel or upon a 10% deposit of the amount fixed for the bond. Previously, we remanded the cause to enable the district court to comply with rule 9(a) of the Federal Rules of Appellate Procedure by stating in writing the reasons for imposing or refusing to impose conditions of release. United States v. Briggs, et al., 5 Cir. 1973, 472 F.2d 1229. The district court has since issued an order stating its reasons for denying the defendants’ motion to reduce bail. On reexamination of our previous decision, we find that we were not sufficiently explicit in our directions to the district court. We are compelled, therefore, again to remand the cause.

It is complained that the District Court fixed a uniform blanket bail chiefly by consideration of the nature of the accusation and did not take into account the difference in circumstances between different defendants. If this occurred, it is a clear violation of Rule 46(c). Each defendant stands before the bar of justice as an individual. Even on a conspiracy charge defendants do not lose their separateness or identity. While it might be possible that these defendants are identical in financial ability, character and relation to the charge — elements Congress has directed to be regarded in fixing bail — I think it violates the law of probabilities. Each accused is entitled to any benefits due to his good record, and misdeeds or a bad record should prejudice only those who are guilty of them. The question when application for bail is made relates to each one’s trustworthiness to appear for trial and what security will supply reasonable assurance of his appearance.

In its written order, the district court stated that it considered several factors in determining what conditions of release were appropriate. The court relied primarily on the seriousness of the charges alleged in the indictment but also considered the potential penalty which could be imposed if the defendants were convicted, the defendants’ ties to the Gainesville, Florida, community (the site of the trial), and the defendants’ attitude toward the legal system. The court concluded that these factors justified a fixed bond for each of the defendants in the amount of $10,000 cash or surety bond.

The district court’s statement of reasons does not clarify the basic ambiguities in its decision that necessitated our initial remand order. The district court’s order does not consider the factors with respect to each defendant that would justify the conditions of release imposed in this case. Rather, it lumps all the defendants together and concludes that a uniform blanket bail is appropriate. The Bail Reform Act, however, clearly contemplates that each person has the right to separate consideration, to stand or fall on the merits of his own case rather than on the misdeeds of his co-defendants. “Each defendant stands before the bar of justice as an individual.” Moreover, judicial review is effectively thwarted if the appellate court cannot determine the factors relied upon by the district court in reaching its decision. By referring to the eight defendants as if they were a single, homogeneous entity, the district court has prevented consideration of the specific circumstances of each defendant. Here, there are several relevant differences among the defendants. Not all the defendants are charged with the many substantive offenses cited by the district court. Six of the eight defendants are charged with only one offense, conspiracy in violation of 18 U.S.C. § 371; one defendant is charged with both conspiracy and commission of the substantive offenses; and another defendant is charged not with conspiracy but with being an accessory. From the affidavits submitted by the defendants, it also appears that three of the defendants have resided in Gainesville for some time and that one of the defendants owns a home there. Two other defendants have ties in the state of Florida, and one owns a home in Hialeah, Florida. Despite these differing circumstances, the district court set a uniform blanket bail in the amount of $10,000 without stating the reasons for its decision. Without expressing any view as to the merits of the defendants’ claims, we think that at a minimum each defendant is entitled to know the reasons why the particular conditions of release were imposed in his case. The Bail Reform Act expressly requires this.

We therefore remand the cause to the district court for a statement of the reasons for imposing the conditions of release with respect to each defendant.

Remanded.

RONEY, Circuit Judge

(specially concurring):

I concur with the majority because the remand on summary disposition is the quickest way to reach a final conclusion in this matter, given the position that the majority of this panel takes as to the District Court’s order. Otherwise, I would affirm the District Court’s order on the ground that, while the exercise that the remand requires of the District Court might be technically correct and reveal reasons for increased bail as to certain defendants, the District Court’s recitation of those factors common to all defendants convinces me that in no ease could the $10,000 bail requirement be regarded as an abuse of dis-, cretion nor as excessively high bail.’ Under such circumstances, I would ordinarily think that the remand creates an added expense for the defendants and can only result in a needless expenditure of judicial time.

      . Mr. Justice Jackson made the following observation in a concurring opinion in Stack v. Boyle, 1951, 342 U.S. 1, 9, 72 S.Ct. 1, 6, 96 L.Ed. 3, 9, a case very similar to the one at bar:


source: Caselaw Access Project

author: MERRILL, Circuit Judge:

license: Public Domain

text:
    Lawrence HOLZMAN, Appellant, v. L. H. J. ENTERPRISES, INC., Appellee.
    No. 72-1208.
    United States Court of Appeals, Ninth Circuit.
    April 5, 1973.
    Rehearing Denied June 15, 1973.

      Eric T. Lodge (argued), Theodore W. Graham, Luce, Forward, Hamilton & Scripps, San Diego, Cal., for appellant.
    James W. Hodges (argued), Herbert Katz, Hinchy, Katz, Witte, Wood & Anderson, Leland Featherman, San Diego, Cal., for appellee.
    Before MERRILL and KILKENNY, Circuit Judges, and TAYLOR, District Judge.

       Honorable Fred M. Taylor, United States District Judge for the District of Idaho, sitting by designation.

   MERRILL, Circuit Judge:

In this appeal from order of a referee in bankruptcy, affirmed by the District Court, the issue is whether a nonpossessory security interest can, under California law, be taken as to after-acquired items of inventory of a retail merchant.

Appellant is trustee in bankruptcy for Pasqual Patrick Piro, Jr. On July 20, 1966, appellee sold to Piro, doing business as Boys Towne, an inventory of boys’ clothing, receiving in payment a promissory note in the sum of $18,584.-55, secured by an agreement giving appellee a security interest “in all of the inventory of boys’ clothing * * * and any and all additions, accessions and substitutes thereto or therefor.” The security agreement was duly filed and recorded pursuant to state law. At the time petition in bankruptcy was filed, Piro had a substantial inventory of boys’ clothing on hand but only a small portion of it constituted items sold by appellee on July 20, 1966. The rest had been bought by Piro subsequent to that date. The inventory on hand was sold by appellant, as trustee, with appellee’s lien attaching to the proceeds. It was stipulated that $500 of that sum represented that portion of the inventory actually bought July 20, 1966. Appellee claimed that the entire proceeds were subject to his lien.

Section 9102(4), California Commercial Code, reads:

“Notwithstanding anything to the contrary in this division, no nonpossessory security interest, other than a purchase money security interest, may be given or taken in or to the inventory of a retail merchant held for sale, except in or to inventory consisting of durable goods having a unit retail value of at least five hundred dollars ($500) or motor vehicles, house trailers, trailers, semitrailers, farm and construction machinery and repair parts thereof, or aircraft.”

The question is whether a lien on after-acquired inventory can qualify as a “purchase money security interest.” Section 9107, California Commercial Code, defines the term:

“A security interest is a ‘purchase money security interest’ to the extent that it is
(a) Taken or retained by the seller of the collateral to secure all or part of its price; or
(b) Taken by a person who by making advances or incurring an obligation gives value to enable the debtor to acquire rights in or the use of collateral if such value is in fact so used.”

The referee and the District Court ruled that under these statutory provisions appellee’s lien extended to after-acquired inventory and accordingly that the entire proceeds of sale were subject to it. We affirm.

Section 9102(4) is a California departure from the Uniform Commercial Code, which was insisted upon by the state legislature. Appellant contends that this demonstrates legislative intent that pre-Commercial Code restrictions upon inventory lien should continue to apply and that nonpossessory security interests should be restricted to those which had then been recognized: chattel mortgages, conditional sales and trust receipts. As to inventory liens, law prior to the Commercial Code had expressly denied them to retail merchants. We cannot accept this construction.

If a purchase money security interest in retail inventory is to have any commercial usefulness, it must accommodate the resale of the inventory under lien. Resale of that inventory is the very reason for its purchase.

This could be accomplished by an elaborate and cumbersome arrangement whereby the resale of any item subject to lien is permitted by the lienholder, the proceeds of such resale are impounded to apply upon the note, and the lien-holder then consents to use of the impounded sums for purchase of replacement items of inventory, taking a new lien on such new purchases. The floating lien on after-acquired inventory items is but a shorthand version of this arrangement. By consenting to resale of the collateral and use of the proceeds of such resale to acquire replacement items, the seller (lender) has given value to enable the purchaser (borrower) to acquire the new collateral. In effect, he has renewed his advance by releasing the proceeds of resale.

Accordingly in our view the lien on inventory items subsequently acquired as replacement for the original items subject to lien is a “purchase money security interest” under § 9107.

This does not serve to read § 9102(4) out of California’s Commercial Code. Inventory liens remain strictly limited to that which was purchased, or the replacement of that which was purchased. General inventory liens or those for other than purchase obligations are still forbidden. The state requirement for giving notice of the financial arrangements serves to protect future sellers of inventory as well as general creditors.

California courts have not ruled on the issue here presented. Cases on which appellant relies deal with law prior to the Commercial Code or with instances in which notice of the financial arrangement had not properly been given. One court has, however, discussed the question in dicta which support our conclusion. Needle v. Lasco Industries, 10 Cal.App.3d 1105, 1107, 89 Cal.Rptr. 593, 595 (Ct.App. 2d Dist. 1970).

Judgment affirmed.


author: MOORE, Circuit Judge:

text:
    Sonia F. ALLAND, Plaintiff-Appellant, v. CONSUMERS CREDIT CORPORATION, Defendant-Appellee.
    No. 410, Docket 72-1917.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 24, 1973.
    Decided March 28, 1973.

      Bradley R. Brewer, Maull & Soeiro, New York City, for plaintiff-appellant.
    Joseph Feldman, New York City (Jerome Handler, Paul M. Godlin, Schur, Rosenberg, Handler & Jaffin, New York City, of counsel), for defendant-appellee.
    Before MOORE, HAYS and MANSFIELD, Circuit Judges.
   MOORE, Circuit Judge:

Sonia Alland, a citizen of New York, appeals from that part of a final judgment of the United States District Court for the Southern District of New York dismissing on the merits Claim 3 of her complaint, by which she sought to recover $6,066 as reasonable attorney’s fees for costs incurred in suing upon two promissory notes. The district court granted the relief sought on Claims 1 and 2 of the complaint and awarded Mrs. Alland, pursuant to the confession of judgment contained in the notes, $18,200 plus interest, which represented the amount owed by the appellee. Neither party appeals from the judgment as to the first two claims; Mrs. Alland appeals only the dismissal of her Claim 3.

I.

The district court, whose opinion is reported at 54 F.R.D. 252 (S.D.N.Y. 1971), found the following facts. The appellee Consumers Credit Corporation (“the finance company”), an Ohio corporation with principal place of business in Cleveland, was organized in 1951 with money provided by Mrs. Alland’s father, Louis Feldman. The stock of the new corporation was divided among his three children: appellant Sonia Alland, he.' brother Raymond Feldman, and Alex Shepard (or his wife, Helen Feldman Shepard, appellant’s sister). Alex Shepard has been president, chief executive officer, and general manager of the finance company since its inception. On November 1, 1966, appellant and her husband, Alexander Alland, Jr., sold all their stock in the finance company to the company. Alex Shepard, in his capacity as president, executed two promissory notes as part of the sale agreement. Note 1 was payable to appellant, in the amount of $42,000, and Note 2 was payable to her husband, in the amount of $2,000. Both notes provided for payment of principal in installments on stated dates, and both contained an acceleration provision to become operative thirty days after notice of default.

The appellee finance company defaulted on payments due on both notes on November 1, 1970. Notice of default was mailed to appellee on December 9, 1970, and again on January 27, 1971. Acting on behalf of the company, Alex Shepard refused to make payment of the balance owing on either note. Appellant retained counsel in her effort to collect on the notes. Counsel contacted Shepard by telephone on March 2, 1971, for the purpose of informing him that appellant would not commence legal action if appellee made full payment of the amounts owing by March 5, 1971. Shepard indicated his awareness of the default, but he informed counsel that he had decided not to pay until compelled to do so.

Appellant moved ex parte for a judgment by confession in the Southern District of New York on March 27, 1971. In Claim 1 of her complaint appellant sought recovery of the balance owing on Note 1, $17,304 ($16,800 principal plus $504 interest); in Claim 2 she sought recovery of the balance owing on Note 2, $896 ($800 principal plus $96 interest). Claim 3 of the complaint, seeking $6,066 attorney’s fees as “costs of suit” in recovering on the notes, was based on the following language which appeared in both notes:

If any installment of this note, or interest thereon, be not paid within thirty (30) days after written notice that it is overdue, then the entire unpaid balance hereof shall at once become due and payable at the option of the holder hereof, and the undersigned hereby authorizes any attorney at law to appear in any Court of Record in the United States, after the above obligation becomes due as aforesaid, and waive the issuing and service of process and confess a judgment against the undersigned in favor of the holder hereof for the amount then appearing due, together with costs of suit, and thereupon to release all errors and waive all right of appeal, (emphasis added)

The district court, finding that the sale agreement was “a product of arms-length bargaining between the parties,” 54 F.R.D. at 254; that “the corporate promissor was completely familiar with the language of promissory notes and with the legal consequences thereof,” id. at 255; that “both promissory notes were either drafted by defendant’s own attorneys or carefully reviewed by them before being executed by its president, signing officer and sole shareholder, Alex Shepard,” id.; and that “Shepard stated that he was aware that he was in default, but had decided not to pay the notes until forced to do so,” id., entered judgment in favor of appellant on Claims 1 and 2. Id. at 256. As to Claim 3, however, the district court dismissed, ruling that:

Plaintiff’s claim for $6,066 attorney’s fees, however, is denied. “Costs of suit” reasonably refers to mere filing fees rather than attorney’s fees. 54 F.R.D. at 256.

The narrow issue we must determine on appeal, then, is whether the district court erred in ruling that “costs of suit” as used in the parties’ contractual agreement refers only to court filing fees, to the exclusion of attorney’s fees. Resolution of this question depends, we think, on ascertaining the intent of the parties in their use of those words in the agreement.

II.

We note that there is no question of subject matter jurisdiction here; federal court jurisdiction exists by reason of diversity of citizenship. 28 U.S. C. § 1332. And since in the promissory notes the appellee finance company, in case it defaulted, “authorize[d] any attorney at law to appear in any Court of Record in the United States * * * and waive the issuing and service of process and confess a judgment against [the finance company],” appellee consented in advance to in personam jurisdiction in federal district court. See Atlas Credit Corp. v. Ezrine, 25 N.Y.2d 219, 227, 303 N.Y.S.2d 382, 250 N.E.2d 474, 479 (1969). Neither party contests the district court’s ruling that appellee’s “consent to the jurisdiction of this Court as expressed in the two promissory notes was intelligently given.” 54 F.R.D. at 254. See National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 316, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964); Bowles v. J. J. Schmitt & Co., Inc., 170 F.2d 617, 622 (2d Cir. 1948). And although the district court correctly ruled that the entry of a confessed judgment “is a matter of procedure where the federal rules govern” for purposes of Erie, see Bowles, supra, 170 F.2d at 620, questions regarding the interpretation to be given language in the confession of judgment are governed, as are other written agreements, by substantive state law. The general rule is that a federal court will apply the law of the forum state, including that state’s choice of law rules. Klaxon v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 478, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Patch v. Stanley Works (Stanley Chemical Co. Div.), 448 F.2d 483, 487 (2d Cir. 1971); Pryor v. Swarner, 445 F.2d 1272, 1274 (2d Cir. 1971). Under New York choice of law principles, the substantive law of New York is here concededly applicable. See Auten v. Auten, 308 N.Y. 155, 124 N.E.2d 99 (1954); Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963).

Careful research in the New York authorities indicates that no New York court has yet construed the phrase “costs of suit” within the context of a contractual agreement between private parties. Appellee finance company has cited numerous cases that have construed the term “costs”, or “expenses”, to support its argument that the generally understood legal meaning attached to those words excludes attorney’s fees. See, e. g., Matter of Poersch, 28 A.D.2d 1040, 283 N.Y.S.2d 926, 928 (App.Div., 3d Dep’t 1967); Pelella v. Pelella, 13 Misc.2d 260, 265, 176 N.Y.S.2d 862, 867 (Sup.Ct., Kings Co. 1958), aff’d, 9 A.D. 2d 897, 195 N.Y.S.2d 599 (App.Div., 2d Dep’t 1959); Royal Discount Corp. v. Luxor Motor Sales Corp., 9 Misc.2d 307, 308, 170 N.Y.S.2d 382, 383 (App.T., 1st Dep’t 1957); Mutual Life Ins. Co. v. Kroehle, 29 Misc. 481, 483, 61 N.Y.S. 944, 945 (Sup.Ct., N.Y. Co. 1899); Caperna v. Williams-Bauer Corp., 185 Misc. 687, 688, 57 N.Y.S.2d 254, 255 (City Ct., N.Y. Co.), aff’d, 186 Misc. 27, 58 N.Y.S. 2d 876 (App.T., 1st Dep’t 1945). We find these eases to be of little help, however, for we deal in this appeal not with the more commonly used term “costs”, which does indeed carry the technical meaning urged by appellee (i. e., mere court fees), nor with a statute by which a legislative body has provided for the awarding of “costs” to a successful litigant. See Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 720, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967). Rather, we have here a contract in which the words “costs of suit” were intended to carry a meaning as understood by both parties to the agreement.

While it is true that each party to a litigation normally must bear its own expenses, it is clear that the parties may by contract agree to permit recovery of attorney’s fees as part of plaintiff’s expenses in prosecuting suit. See Swiss Credit Bank v. International Bank, Ltd., 23 Misc.2d 572, 573, 200 N.Y.S.2d 828, 830 (Sup.Ct., N.Y. Co. 1960). See also 49 C.J.S. Judgments § 154, p. 287 (1947); 6 J. Moore, Federal Practice, ¶ 54.77[2], at 1349 (1971). And wherever they are valid under applicable state law, contractual rights to attorney’s fees are enforceable in federal court. United States v. Carter, 217 U.S. 286, 322, 30 S.Ct. 515, 54 L.Ed. 769 (1910).

We fully agree with appellee that no ambiguity exists as to what is commonly meant by the term “costs” as that word is used by courts, legislatures, and attorneys, and that the term does not normally refer to counsel fees. Appellee’s lawyers, however, did not employ the term “costs” when they drafted or reviewed the agreement; they chose instead the more expansive “costs of suit”. On this point “we deem it significant, as did the district court, that the appelleepromisor is a finance company which deals daily with promissory notes and confessed judgments, and which must therefore be presumed to be completely familiar with the legal effect of the language used in such notes; that the notes here in question were either drafted by appellee’s attorneys or carefully reviewed by them before being executed by Shepard; and that appellant Sonia Alland is a layman who is not expected to have familiarity with the technical, legal meanings of words which, although ordinary enough to laymen, have assumed specific legal significance when used by lawyers. Notwithstanding the fact that appellant is not expected to be familiar with legal jargon, however, if appellee’s lawyers had used the term “costs” our task here would be much simplified, for that term would have expressed precisely what appellee now urges was intended by “costs of suit”, and there could have been no room for doubt or mistake. But ambiguity was created by appellee’s use of “costs of suit”, and our inquiry thus centers upon what the parties must be reasonably held to have expected from the execution of the document in the form and language used, see Bowles, supra, 170 F.2d at 622. We therefore look for guidance to the rules of construction established by the New York cases, mindful of the well-settled principle that:

In construing contracts, words are to receive their plain and literal meaning, even though the intention of the party drawing the contract may have been different from that expressed. A party to a contract is responsible for ambiguity in his own expressions, and has no right to induce another to contract with him on the supposition that his words mean one thing while he hopes the court will adopt a construction by which they would mean another thing more to his advantage. Calderon v. Atlas Steamship Co., 170 U.S. 272, 280, 18 S.Ct. 588, 591, 42 L.Ed. 1033 (1898).

III.

In Hoffman & Place v. Aetna Fire Ins. Co., 32 N.Y. 405, 412-413 (1865) the New York Court of Appeals early held that:

It is a rule of law, as well as of ethics, that where the language of a promisor may be understood in more senses than one, it is to be interpreted in the sense in which he had reason to suppose it was understood by the promisee. * * * It is also a familiar rule of law, that if it be left in doubt, in view of the general tenor of the instrument and the relations of the contracting parties, whether given words were used in an enlarged or a restricted sense, other things being equal, that construction should be adopted which is most beneficial to the promisee, (citations and emphasis in original omitted)

See also Dennis v. Massachusetts Benefit Ass’n, 120 N.Y. 496, 503, 24 N.E. 843, 844 (1890); Moran v. Standard Oil Co. of New York, 211 N.Y. 187, 196, 105 N.E. 217, 220 (1914); Lee v. State Bank & Trust Co., 54 F.2d 518, 521 (2d Cir. 1931) (“the law of contracts does not judge a promisor’s obligation by what is in his mind, but by the objective test of what his promise would be understood to mean by a reasonable man in the situation of the promisee.”) Since the promissory notes were drafted by appellee’s lawyers or scrutinized by them before being executed by Shepard, the language contained therein must be construed most strongly against appellee, the promisor, Darrow v. Family Fund Soc’y, 116 N.Y. 537, 544, 22 N.E. 1093, 1095 (1889), and in favor of appellant, the promisee, id.; see also Hoffman, supra, 32 N.Y. at 413; Paul v. Travelers’ Ins. Co., 112 N.Y. 472, 479, 20 N.E. 347, 349 (1889); Gillet v. Bank of America, 160 N.Y. 549, 554-555, 55 N.E. 292, 293 (1899). Moreover, the words used should be given the meaning which a layman would reasonably have attributed to them, Moran v. Standard Oil Co. of New York, supra, 211 N.Y. at 196, 105 N.E. at 220; Gillet v. Bank of America, supra, 160 N.Y. at 555, 55 N.E. at 294.

When the foregoing canons of construction are applied to the facts presented, it must be concluded that a reasonable layman would have been justified in believing that in the event appellee subjected him to any cost in suing on the promissory notes appellee would assume liability for all costs of such a suit. It is obvious that the finance company here could have avoided the resulting costs of a lawsuit by not defaulting on the notes, or could have minimized such costs by paying the amounts owing at any time during the early stages of what became a protracted litigation. Instead, appellee chose a course of action which not only put appellant to substantial attorney’s fees, but which reflects a bad faith intent successfully to use the $18,200 owing to appellant at an interest rate (6%) more favorable than could be obtained from a commercial lender, for a period measured by the date of default (November 1, 1970) and the date on which the district court entered judgment in favor of appellant (August 31, 1971). And we note that neither in district court nor in this Court has appellee raised any defense or justification for defaulting on the notes, for dragging appellant through months of costly litigation in two federal district courts, or for burdening the courts with what appears to have been an unmeritorious, indeed, an indefensible, refusal to comply with the contractual agreement.

Appellee, a finance company, is not a stranger to the coercive advantages provided by the confessed judgment device; undoubtedly, it is fully aware that the procedure allows a creditor to avoid formal, lengthy, and expensive legal proceedings in order to collect from his debtor, and that it is precisely for this reason that lenders use the confessed judgment. See, e. g., 49 C.J.S. Judgments, § 134 and cases cited therein; cf. American Cities Co., Inc. v. Stevenson, 187 Misc. 107, 110, 60 N.Y.S.2d 685, 688 (Sup.Ct., N.Y. Co.1946). Certainly, when appellee finds itself in its more customary role as a creditor, and not as here a debtor, it relies on the judgment of confession to avoid the type of attorney’s fees which appellant was here forced to undergo. And yet, occupying the position of debtor in this appeal, appellee, with no apparent justification in law or in fact, sought to frustrate its creditor’s reliance on an ambiguously worded agreement which appears to have been drafted by its lawyers. As a consequence, appellant has had to expend for attorney’s fees alone ($6,066 in district court plus attorney’s fees occasioned by this appeal) more than one-third the amount owed to her by appellee ($18,200) — again, with no defense proffered by appellee.

Appellee’s course of conduct in this action manifests an intention to use our already over-crowded court dockets and the time-consuming judicial process as means to securing financial advantage. Such conduct bespeaks a willingness, therefore, to abuse the processes of the federal court system. This alone might well provide adequate grounds for awarding reasonable attorney’s fees to one in appellant’s position. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 n. 4, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (per curiam) (“a federal court may award counsel fees to a successful plaintiff where a defense has been maintained ‘in bad faith, vexatiously, wantonly, or for oppressive reasons,’ 6 Moore’s Federal Practice 1352 (1966 ed.)”); Stolberg v. State Colleges of the State of Connecticut, 474 F.2d 485, 490 (2d Cir. 1973); Kahan v. Rosenstiel, 424 F.2d 161, 167 (3d Cir.), cert. denied, Glen Alden Corp. v. Kahan, 398 U.S. 950, 90 S.Ct. 1870, 26 L.Ed.2d 290 (1970); Rolax v. Atlantic Coast Line R.R., 186 F.2d 473, 481 (4th Cir. 1951). We need not invoke this Court’s equity power, however, to determine the proper resolution of the present appeal; the agreement of the parties, as construed under applicable New York contract law, provides the answer to the question presented.

Applying the above-cited rules of construction to the contractual agreement before us, we conclude that a reasonable layman in appellant’s position would have been justified in believing that “costs of suit” would include all the reasonable expenses of prosecuting a lawsuit, including attorney’s fees. If appellee had wished to limit its liability for such expenses to mere court costs or filing fees, it would have used the unambiguous term “costs”. We therefore hold that appellant is entitled to reasonable attorney’s fees and that it was error for the district court to dismiss Claim 3 of her complaint. We remand the cause to the district court in order that appellant may present itemized evidence with respect to “costs of suit”, including reasonable attorney’s fees for prosecuting this action both in district court and on appeal. The district court shall enter judgment accordingly, in an amount so determined by it.

      . The language contained in Note 1 was as follows:
      PROMISSORY NOTE
      $42,000.00 November 1,1966
      FOR VALUE RECEIVED, the undersigned promises to pay to the order of SONIA F. ALLAND the sum of Forty-Two Thousand Dollars ($42,000.-00) with interest computed from November 1, 1966 on the unpaid balance at the rate of six percent (6%) per annum, computed and payable quarterly on the unpaid balance, with the first installment of interest to be paid on February 1, 1967. The principal sum due hereunder shall be payable in five (5) equal consecutive annual installments of Eight Thousand Four Hundred Dollars ($8,-400.00) each, the first such installment being due on the 1st day of November, 1967. Payment of one or more installments in advance of the dates herein provided may be made at the option of the maker without penalty.
      If any installment of this note, or interest thereon, be not paid within thirty (30) days after written notice that it is overdue, then the entire unpaid balance hereof shall at once become due and payable at the option of the holder hereof, and the undersigned hereby authorizes any attorney at law to appear in any Court of Record in the United States, after the above obligation becomes due as aforesaid, and waive the issuing and service of process and confess a judgment against the undersigned in favor of the holder hereof for the amount then appearing due, together with costs of suit, and thereupon to release all errors and waive all right of appeal.
      CONSUMERS CREDIT CORPORATION
      By /s/ Alex J. Shepard
      President
      Except for the amounts involved, the language of Note 2 was identical to that of Note 1.

      . On March 25, 1971, Alexander Alland had assigned to his wife all his rights in Note 2.

      . Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

      . But see John Deere Co. of Baltimore, Inc. v. Cerone Equip. Co., Inc., 33 A.D. 2d 257, 307 N.Y.S.2d 129, aff’d, 27 N.Y.2d 926, 318 N.Y.S.2d 143, 266 N.E.2d 822 (1970), where the term “costs” was given a more inclusive meaning. In that case, plaintiff brought a summary judgment action to recover equipment in defendant’s possession, pursuant to an agreement which gave plaintiff a security interest in the equipment. Plaintiff sought to recover, as an item of “costs”, a surety premium of $7,407 which plaintiff had been forced to pay in order to obtain and post the bond necessary to its repossession procedure. -The Appellate Division held, and the New York Court of Appeals affirmed, that where “despite [plaintiff’s] appellant’s unquestionable right to possession of the items of equipment involved, respondent prevented peaceful repossession and rejected an opportunity to satisfy Lis obligation by paying over the amount due,” and, moreover, where defendant- ' respondent had “interposed no defense in tire action that could be denominated in the slightest as meritorious * * * the premium was a reasonable expense necessary to preserve appellant’s unquestioned security rights in the equipment” which appellant was entitled to recover as an item of “costs”. 33 A.D.2d at 258-259, 307 N.Y.S.2d at 131. The court’s order demonstrates that even though the statute relevant to the action (CPLR- 8301, subd. [a], 1)12) did not provide for recovery of the $7,407 bond premium as an item of “costs”, the particular circumstances involved, including defendant’s totally unmeritorious defense, justified the awarding of that amount as part of plaintiff’s “costs.”

      . Even after appellant obtained judgment in the District Court for the Southern District of New York, 54 F.R.D. 252 (S.D.N.Y.1971), appellee delayed further the date of payment. Appellant sought to enforce the judgment in the District Court for the Northern District of Ohio pursuant to 28 U.S.C. § 1963. The record shows that appellee employed various procedural devices to prolong the litigation, and to add further to appellant’s attorney and other fees. See Order of Chief Judge Battisti, District Court for the Northern District of Ohio, No. C71-910 (1971), denying appellee’s motion to quash registration of the judgment rendered by the Southern District of New York.


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. Lester Masao UYEDA, Appellant.
    No. 72-3075.
    United States Court of Appeals, Ninth Circuit.
    March 27, 1973.

      David Bettencourt (argued), Honolulu, Hawaii, for appellant.
    Thomas P. Young, Asst. U. S. Atty. (argued), Robert K. Fukuda, U. S. Atty., Honolulu, Hawaii, for appellee.
    Before BROWNING and GOODWIN, Circuit Judges, and TAYLOR, District Judge.

       The Honorable Fred M. Taylor, United States District Judge for the District of Idaho, sitting by designation.

   PER CURIAM:

Lester Uyeda was convicted of refusing induction. He appeals on several bases, but asserts primarily that his local board erroneously denied him a I-S(c) student deferment.

The I-S(c) classification is nondiscretionary. The local board must grant a I-S(c) to any qualified registrant. To qualify, the registrant must be, at the time he receives his order for induction, “satisfactorily pursuing a full-time course of instruction,” 50 U.S.C. App. § 456(i)(2); 32 C.F.R. § 1625.3(b); and must have enrolled in school before he received his induction order. United States v. Bray, 445 F.2d 819 (9th Cir. 1971). The registrant has the duty of presenting to the local board facts establishing his entitlement to a I-S(c). United States v. Lewis, 448 F.2d 1228 (9th Cir. 1971).

During 1970 Uyeda was enrolled at the University of Hawaii and had a II-S student deferment. He lost this deferment on December 1, 1970, for failure to make satisfactory academic progress. On January 1, 1971, Uyeda received an academic suspension from the University of Hawaii. On January 18, he enrolled for the coming semester at Leeward Community College, where classes were to start on February 1,1971.

The local board did not learn of Uyeda’s suspension from the University of Hawaii until after January 27, 1971, the date that the board sent Uyeda an order to report for induction on February 17. This order had attached to it, however, a letter telling Uyeda that he need not report on that date because he appeared to be eligible for a I-S(c) deferment. On February 2, the local board, having learned of Uyeda’s suspension, directed him to report for induction on February 17.

On February 4, 1971, Uyeda wrote the local board reporting his enrollment at Leeward and requesting a I-S(c) so that he could complete the semester. At the bottom of his letter, Uyeda stated, “I had begun school after my induction order.” If at this time Uyeda had correctly stated the facts to the board, the board would have been required to reopen and reclassify Uyeda I-S(c). 32 C.F.R. § 1625.3(b). However, the board, apparently misled by Uyeda’s statement, believed that he had enrolled after receipt of his order. Uyeda did not fulfill his duty of presenting the facts which entitled him to a I-S(c) at this time. Before the date on which Uyeda was ordered to report, the local board received an authentication of his student status at Leeward. However, this document did not reveal the date of enrollment.

Uyeda did not report for induction on February 17. When requested by the local board to give his reasons, Uyeda replied in a letter which fully set forth the facts entitling him to a I-S(c). The local board nevertheless issued a new order to Uyeda, directing him to report on April 14. He did not report on that date.

At Uyeda’s trial, the first count, charging failure to report on February 17, was dismissed. The first count was a valid count. But Uyeda was convicted of the second count (refusal to report on April 14).

The second order to report was invalid. Before it was issued Uyeda had sufficiently established his entitlement to a deferment. The first order was valid. Before the date of Uyeda’s scheduled induction he had not presented the facts to the local board as required. However, the first order was not the basis for the conviction here. The second order cannot be characterized as a eontinuingduty-to-report order. The second order was fatally defective because it was issued after the board had knowledge of facts precluding such an order. Therefore, Uyeda’s conviction cannot stand.

Reversed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. ONE 1969 PLYMOUTH FURY AUTOMOBILE, SERIAL NO. PM43G9D199088, Defendant. Ford Motor Credit Company, Intervenor-Appellant.
    No. 72-2844.
    United States Court of Appeals, Fifth Circuit.
    April 19, 1973.
    Michael Lowenberg, Molly Bartholow, Dallas, Tex., for intervenor-appellant.
    Frank D. McCown, U. S. Atty., Roger J. Allen, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.
    Before WISDOM, GEWIN and COLEMAN, Circuit Judges.
   PER CURIAM:

Ford Motor Credit Company (FMCC) appeals from a summary judgment forfeiting title and possession of a 1969 Plymouth Fury automobile to the United States. The record owner was charged and convicted of using the automobile for the unlawful transportation of counterfeit federal reserve notes. 49 U.S.C. §§ 781, 782. The owner had paid $100 down; FMCC’s security interest exceeded the value of the car. We affirm.

FMCC contends that: (1) the forfeiture provisions found in 49 U.S.C. §§ 781, 782 were unconstitutionally applied; (2) the forfeiture statutes found in 49 U.S.C. §§ 781, 782 are unconstitutional on their face because they authorize deprivation of property without due process of law and the taking of property from a totally innocent party without just compensation; and (3) 49 U.S.C. § 782 is so discriminatory that it violates due process of law.

These are serious contentions well-briefed and well-argued by counsel for FMCC. There is, of course, a distinction between a title-holder and the holder of a security-interest; a company financing the purchase of automobiles knows that it runs the risk of having its interest forfeited, if the car is used to transport contraband. On the other hand, it is incongruous that an innocent lienor whose equitable interest may far exceed the owner’s interest is in a worse position than an innocent record owner. It may even be said that the forfeiture is an anachronistic relic of deodand.

If this were a case of first impression, we would examine closely and weigh carefully the competing values in the opposing arguments. But we are bound by decisions of this Court too numerous to cite upholding such forfeitures. FMCC argues, however, that in United States v. United States Coin and Currency, 1971, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434, the Supreme Court took a new look at forfeitures and interpreted the statute as applicable only when the owner has “significantly participated in the criminal enterprise”. The Court said:

“The Government contends that the guilt of the owner of the money is irrelevant. . . . If we were writing on a clean slate, this claim that § 7302 operates to deprive totally innocent people of their property would hardly be compelling. Although it is true that the statute does not specifically state that the property shall be seized only if its owner significantly participated in the criminal enterprise, we would not readily infer that Congress intended a different meaning.”

In that case an owner, not a lienor, was involved, a difference that arguably is a significant distinction. In United States v. One 1970 Buick Riviera, 5 Cir. 1972, 463 F.2d 1168, the contentions were similar to those raised here. This Court rejected the due process and just compensation arguments and, importantly, concluded that United States v. United States Coin and Currency was inapplicable.

We note also that 19 U.S.C. § 1618 allows remission or mitigation of the penalty at the discretion of the Secretary of the Treasury:

“[T]he Secretary of the Treasury, if he finds that such fine, penalty or forfeiture was incurred without willful negligence or without any intention on the part of the petitioner to defraud the revenue or to violate the law, or finds the existence of such mitigating circumstances as to justify the remission or mitigation of such fine, penalty, or forfeiture, may remit or mitigate the same upon such terms and conditions as he deems reasonable and just, . . .”

Here FMCC took advantage of this provision but was unsuccessful in convincing the Secretary of the Treasury that he should remit or mitigate the forfeiture of the Plymouth Fury to the extent of its lien interest in the automobile.

The judgment must be affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Clyde Lee DAUGHERTY, Jr., Defendant-Appellant.
    No. 72-2898.
    United States Court of Appeals, Ninth Circuit.
    April 3, 1973.
    Rehearing Denied May 31, 1973.

      Martin Henner (argued), Palo Alto, Cal., for defendant-appellant.
    Joseph E. Reeves, Asst. U. S. Atty, (argued), James L. Browning, U. S. Atty., Chester G. Moore, III, F. Steele Langford, Asst. U. S. Attys., Criminal Division, San Francisco, Cal., for plaintiff-appellee.
    Before WRIGHT and WALLACE, Circuit Judges, and KELLEHER, District Judge.

       Honorable Robert J. Kelleher, United States District Judge, Central District of California, sitting by designation.

   PER CURIAM:

Daugherty appeals from his conviction, after trial by the Court, of failing to report for induction in violation of 50 U.S.C., App. § 462(a). Each of appellant’s arguments has been considered. Only the contention that appellant was “passively misled” by his draft board deserves discussion. For the reasons indicated below we find it without merit and we affirm the judgment.

On February 26, 1971, an order to report for induction on March 24, 1971, at Oakland, California, was mailed by the board to appellant at his address of record in the Oakland area. Because he had moved to Hawaii, the order to report for induction was not received by him until March 7, 1971. On March 9, 1971, appellant wrote a letter to his local board, which was received by the Oakland board on March 15, 1971, stating that he was unable to report as ordered for induction as he was in Hawaii and did not have the money necessary to fly to Oakland, and requesting that his registration be transferred to Hawaii.

On March 22, 1971, the local board replied by letter to appellant’s request informing him that his registration could not be transferred but that he could arrange to transfer his induction to Hawaii by reporting to a Hawaii local board. However, this letter was not received by appellant until March 25, 1971, the day after appellant’s induction date.

Appellant asserts that the local board’s delay in responding to his request for transfer of his registration, which indicated his misunderstanding of the law, amounts to no response since the letter was received after appellant’s induction date.

On this basis appellant invokes United States v. Timmins, 464 F.2d 385 (9th Cir. 1972), for its holding that passively misleading conduct by a local Selective Service Board reasonably relied upon by a registrant may serve as a defense to a criminal chafge of refusing to report for induction. Appellant’s reliance on Timmins is misplaced.

Even if we assume passively misleading conduct on the part of the board, as to which there is some doubt on this record, appellant’s reliance upon that conduct is unreasonable. Appellant testified that he read the instructions contained on his order to report for induction. Appellant knew therefrom of his right and duty to go immediately to any local board and make a written request of transfer of his induction if he was unable to comply with the order to report for induction in Oakland. He had adequate time between March 9th and 24th to do so.

On the entire record, the trial court had ample evidence on which to reject appellant’s contention and to find him guilty.

Affirmed.


text:
    Eugene Harry WARD, Plaintiff-Appellant, v. Harold C. KELLY, Superintendent of Education, et al., Defendants-Appellees.
    No. 72-2279.
    United States Court of Appeals, Fifth Circuit.
    March 16, 1973.
    Nausead Stewart, Melvyn R. Leventhal, Jackson, Miss., for plaintiff-appellant.
    T. H. Campbell, III, John C. Satterfield, Yazoo City, Miss., for defendantsappellees.
    Before GEWIN, SIMPSON and RONEY, Circuit Judges.
   PER CURIAM:

We affirm the District Court’s determination that this is not a proper class action because the size of the class is demonstrably small. Each member of the alleged class could be joined in this litigation without undue burden on the plaintiff.

We reverse and remand on the issues concerning plaintiff’s dismissal, demotion, and failure to be rehired by the school board. A hearing before the school board cannot be substituted as a trial of the issues before the District Court. This case is remanded to the District Court for further proceedings consistent with our opinion in Thompson et al. v. Madison County Board of Education et al., 476 F.2d 676 (5th Cir. 1973), a case in which the District Court followed essentially the same procedure which we find objectionable here.

Affirmed in part and reversed and remanded in part.


text:
    Harry Lee BELL, #016599, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellee.
    No. 73-1260
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 18, 1973.
    Charles W. Musgrove, Public Defender, 15th Judicial Cir. of Fla., West Palm Beach, Fla., for petitioner-appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Nelson E. Bailey, W. Palm Beach, Fla., for respondent-appellee.
    Before WISDOM, AINSWORTH and CLARK, 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:

Appellant, a Florida state prisoner, appeals from the denial by the United States District Court of habeas corpus relief. We affirm.

Bell originally pled not guilty in Florida State Court to an information charging him with grand larceny and three additional offenses. Subsequently he withdrew his plea and entered a plea of guilty to attempted grand larceny. Still later he withdrew this guilty plea. Thereafter the State of Florida filed a new four-count information identical to that originally filed except that the charge of grand larceny was omitted and the charge of robbery was included. A jury found appellant guilty of robbery and possession of a short-barreled shotgun (one of the counts contained in the information).

On direct appeal to Florida State Court, Bell contended his trial, on a charge higher than that to which'he had pled, constituted double jeopardy. The Florida appellate court affirmed the judgment of the trial court on the merits as well as on the basis of waiver brought about by appellant’s failure to raise the issue of double jeopardy at trial. Bell v. State, Fla.App., 1972, 262 So.2d 244.

Appellant again raises the issue of double jeopardy in these federal habeas proceedings. We find his contentions to be without merit. As the Federal District Court correctly observed, the inclusion of an additional charge in a separate information does not constitute double jeopardy. United States v. Jasso, 5 Cir., 1971, 442 F.2d 1054. But there are even more cogent reasons for denying relief. Jeopardy is reached when a jury has been selected and sworn. Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). Jeopardy had not attached when the second bill of information was filed. Bell had voluntarily withdrawn his plea by that time. By his own affirmative action he prevented jeopardy from attaching.

Affirmed.

      . Under Florida law, robbery involves the element of force which is not a factor in the crime of larceny. Florida Statutes §§ 813.011, 811.021, F.S.A.

      , 2. We need not consider the procedural aspect of the case inasmuch as appellant cannot under the circumstances prevail on the merits. Nevertheless, we note that under recent Supreme Court decisions great deference is accorded to rules of criminal pleading peculiar to an individual state, the constitutionality of whicli is not at issue, in determining the validity of a double jeopardy claim, See Duncan v. Tennessee, 405 U.S. 127, 92 S.Ct. 785, 31 L.Ed.2d 86 (1972); Illinois v. Sommerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (February 27, 1973).

      . Reyes v. Kelly, Fla., 1969, 224 So.2d 303, relied on by appellant, is inapposite, Unlike the present case, Reyes did not withdraw, his plea of guilty. Instead the State, for the purpose of indicting Reyes for a more serious crime, attempted to enter a nolle prosequi.


text:
    UNITED STATES of America, Appellee, v. Frederick P. SELBY, Defendant-Appellant.
    No. 755, Docket 73-1044.
    United States Court of Appeals, Second Circuit.
    Argued March 30, 1973.
    Decided April 11, 1973.

      Jay Horowitz, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., and John W. Nields, Jr., Asst. U. S. Atty., of counsel), for appellee.
    Jesse Climenko, New York City (Shea, Gould, Climenko & Kramer and Ira Postel, New York City, of counsel), for defendant-appellant.
    Before FRIENDLY, Chief Judge, LUMBARD, Circuit Judge and THOMSEN, District Judge.

       Of the District Court for the District of Maryland, sitting by designation.

   PER CURIAM:

Frederick P. Selby appeals from a conviction on his plea of guilty to one count of a four count indictment in the District Court for the Southern District of New York. The indictment charged that Selby had engaged in tax evasion in violation of 26 U.S.C. § 7201 for the tax years 1965 and 1966 and in wilful subscription under penalties of perjury to false federal income tax returns for the same years in violation of 26 U.S.C. § 7206(1). The gravamen of both charges was the deliberate omission of interest on a Swiss bank account; Selby claimed he had been advised by an unidentified Swiss lawyer that the interest did not become taxable until brought into the United States.

After pleading not guilty, Selby moved to suppress records relating to the Swiss bank account, alleging that these had been furnished to the Internal Revenue Service in consequence of a representation by Revenue Agent John Flynn to Selby’s attorney, Emilio A. Dominianni, on October 3, 1967, that the Service had not received a letter concerning the Swiss account from F. Roberts Blair, the attorney for Selby’s wife, with whom Selby was having marital troubles, whereas, unbeknownst to Flynn, Blair had delivered such a letter to Special Agent Wolff. After Judge Cannella denied the motion, the Government agreed to accept a plea of guilty to the count charging tax evasion for 1966. The judge imposed a sentence of one year’s imprisonment and a fine of $10,000; however, he directed that Selby be confined to a jail-type institution for only two months, the balance of the prison sentence being suspended and defendant being placed on probation.

The attempt to appeal flies in the face of our decision in United States v. Doyle, 348 F.2d 715, 718 (2 Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965), where we said, quoting from United States v. Spada, 331 F.2d 995, 996 (2 Cir.), cert. denied, 379 U.S. 865, 85 S.Ct. 130, 13 L.Ed.2d 67 (1964), “[t]he cases are legion that ‘[a] plea of guilty to an indictment is an admission of guilt and a waiver of all non-jurisdictional defects.’ ” See also McMann v. Richardson, 397 U.S. 759, 766, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); United States v. Mann, 451 F.2d 346 (2 Cir. 1971). While at the time of the plea there was some discussion of appeal, particularly in the context of 28 U.S.C. § 1292(b) and apparently without realization that the interlocutory appeal statute does not apply in criminal cases, the situation was wholly unlike Jaben v. United States, 333 F.2d 535 (8 Cir. 1964), aff’d without discussion of the point, 381 U.S. 214, 85 S.Ct. 1365, 14 L. Ed.2d 345 (1965), where, as brought out in our Doyle opinion, 348 F.2d at 719, a plea of nolo contendere was accepted on the express condition that the defendant was preserving his right to seek review of his claim that the indictment was barred by the statute of limitations. Although the Judicial Conference of the United States has considered the possible desirability of allowing a defendant to plead guilty but preserve the right to appeal the denial of a suppression motion, Reports of the Proceedings of the Judicial Conference (Mar. 16-17, 1970) at 16, and (Mar. 15-16, 1971) at 41, as the New York Legislature has provided, N.Y.Crim.Proc.Law § 710.70(2) (McKinney’s Consol.Laws, c. 11-A, 1971), nothing has been done to implement this, and we must take the law as it is. Selby could have preserved his right to appeal the denial of the suppression motion by going to the trial for which a jury had already been chosen; instead his counsel worked out an arrangement whereby he was allowed to plead guilty to one count rather than risk conviction on four.

The choice was wise since the suppression motion was wholly lacking in merit. As early as September 14, 1967, Blair told Dominianni that he was going to write the Internal Revenue Service about the Swiss bank account. On September 20 he wrote Dominianni that he had done so. Dominianni’s advice to Selby to make a clean breast in the hope that this might avoid criminal prosecution was based on his belief that the Service would surely learn of the Swiss account from Blair, who was acting not simply out of spite but to keep Mrs. Selby from being prosecuted. Even if the principle of Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed. 2d 104 (1972) — that a promise by one member of a prosecutor’s office must be attributed to the Government even if unknown to his successor — were applicable to a case like this, of which we are extremely doubtful, it is impossible to believe that a lawyer of Dominianni’s experience would have given different advice if he had been told by Flynn that the IRS in fact had received Blair’s letter. Beyond this, Flynn denied that any discussion of the Swiss bank account occurred on October 3, and his notes reflect that on December 12, 1967, long before any records were furnished, he discussed the Swiss account with Dominianni. While Dominianni’s records failed to show any meeting with Flynn on the latter date and he did not recall one, the judge would have been warranted in accepting Flynn’s record about an event in the life of a busy lawyer five years before the hearing. Beyond all this, the record is murky whether the figures concerning the Swiss account were in fact ultimately furnished by Selby at all; such evidence as there is suggests that they were supplied to the IRS by his wife. If we had power to decide the appeal, we would dismiss it as frivolous.

The appeal is dismissed; the mandate shall issue forthwith.


text:
    Mrs. Lorena C. REDDISH, Plaintiff-Appellee, v. LIBERTY NATIONAL LIFE INSURANCE CO., Defendant-Appellant.
    No. 73-1111
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 13, 1973.
    William E. Smith, Americus, Ga., for defendant-appellant.
    J. Frank Myers, Americus, Ga., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

In this case we are asked to decide whether under all the evidence presented the district court committed error in refusing to grant appellant’s motion for judgment notwithstanding the verdict of the jury or in the alternative to grant a new trial. The district court concluded that the appellant did not meet the burden of proof necessary to show that appellee’s husband was within the terms of the exclusion clause stated in the policy.

The insurance policy provided for double indemnity coverage if the insured died as the result of an accident. The insured met his untimely death along with his brother when the plane in which he was riding crashed. The insured’s wife then instituted this present action under review seeking the double recovery under the insured’s policy with the appellant. The appellant defended on the grounds that the double indemnity clause was not applicable to the wife’s claim because of the exclusion clause contained within the insurance contract.

The district court noted that it could not say with assurance that there was no adequate basis for the jury’s conclusion. After reviewing the evidence, we con-elude that reasonable men could reach different conclusions from the evidence presented. See, Boeing v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969). The judgment of the district court is affirmed.

Affirmed.

      . “Exclusions from coverage . . . Benefits for accidental death . . . shall not be payable if the death or loss results directly or indirectly from (f) Operating or riding in or descending from, any kind of aircraft of which the insured was pilot, officer or member of the crew or in which the insured was given or receiving training or instruction or had any duties.”


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Perry FROGGE and Clyde E. Hall, Defendants-Appellants.
    No. 72-2980
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 11, 1973.
    Rehearing Denied May 10, 1973.
    Clyde E. Hall, pro se.
    Marion Lawrence Hicks, Jr., Dallas, Tex. (Court appointed), for Hall.
    Dan C. Rhodes, Houston, Tex. (Court appointed), for Frogge.
    Roby Hadden, U. S. Atty., Dennis R. Lewis, Dale Long, Asst. U. S. Attys., Tyler, Tex., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

The appellants in this case, Robert Perry Frogge and Clyde E. Hall, were charged in a two count indictment with (1) attempting to escape from federal custody, 18 U.S.C. § 751(a), and (2) assaulting two Deputy U.S. Marshals engaged in the performance of their duties, 18 U.S.C. § 111. A jury trial was held and both were found guilty as charged. We affirm.

The appellants assert that the trial court committed the following reversible errors: (1) failed to give an adequate definition of “attempt to escape”; (2) denied appellants’ motion for transfer from the Sherman Division; (3) denied appellants’ motion for a continuance and (4) refused to grant appellants’ motion for the employment of a court appointed polygraph examiner. Frogge makes the additional contention that the evidence was insufficient under count II to convict him of assaulting the two Deputy U.S. Marshals. We have carefully reviewed the briefs and record in this case and find all of these contentions to be without merit.

The trial court’s instructions to the jury concerning the appellants’ defense to the attempt to escape count were, in our opinion, eminently fair. If we were to assume arguendo that the two Deputy U.S. Marshals in charge of appellants accepted the alleged bribe offer and acquiesced in the escape plan as contended by them on appeal, it is highly doubtful that such acquiescence would rise to the level of an affirmative defense. Cf. United States v. Allen, 432 F.2d 939 (10th Cir. 1970); United States v. Greenwell, 379 F.2d 320 (4th Cir. 1967); Mullican v. United States, 252 F.2d 398, 403 (5th Cir. 1958). The trial court, nevertheless, treated the appellants’ acquiescence theory as an affirmative defense and told the jury to return a verdict of acquittal if they believed it. This was done without a specific request on the part of either appellant. We hold that the trial court gave full and adequate instructions to the jury as to all defenses raised for which there was a foundation in the evidence. Perez v. United States, 297 F.2d 12, 15-16 (5th Cir. 1961).

We are similarly unconvinced by the argument that the trial court erred when it refused to authorize the polygraph examinations requested by the appellants. Though a trend may be emerging towards loosening the restrictions on polygraph evidence, see e. g., People v. Houser, 85 Cal.App.2d 686, 193 P.2d 737 (1948), the rule is well established in federal criminal cases that the results of lie detector tests are inadmissible. United States v. Rodgers, 419 F.2d 1315, 1319 (10th Cir. 1969); Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923). Nothing in United States v. Ridling, 350 F.Supp. 90 (E.D.Mich. Oct. 6, 1972), heavily relied upon by the appellants, persuades us to abandon the traditional view.

No discussion of the appellants’ remaining contentions is necessary except to state that the appellants failed to establish reversible error as to any of them. The judgments of conviction are affirmed.

      . The trial court sentenced each appellant to 5 years under Count I and 3 years under Count II.


text:
    Elliott Arthur WILLIAMS, Appellant, v. UNITED STATES of America.
    No. 72-1380.
    United States Court of Appeals, Third Circuit.
    Submitted Feb. 12, 1973.
    Decided March 22, 1973.

      Elliott Arthur Williams, pro se.
    Richard L. Thornburgh, U. S. Atty., Samuel J. Orr, III, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.
    Before VAN DUSEN and ADAMS, Circuit Judges, and BRODERICK, District Judge.
   OPINION OF THE COURT

PER CURIAM:

This appeal presents the issue of whether 18 U.S.C. § 5010(d) requires that a sentence imposed by a district judge on a 19-year-old convicted felon be vacated because the judge did not make a formal finding that the defendant “will not derive benefit from treatment under” 18 U.S.C. § 5010(b) and (c) of the Youth Corrections Act, Chap. 402 of Title 18, 18 U.S.C. § 5005 et seq., even though the judge, at the time of sentencing, indicated in open court that he had given considerable thought to the sentence and had decided not to sentence the defendant under that Act, and in denying a motion to vacate the jugment of conviction and sentence, filed approximately four-and-one-half years after the sentence, stated:

“The fact that the Court did not sentence the defendant under the Youth Corrections Act but sentenced under the statute governing the offense for which he was convicted represented a finding that he would not benefit by treatment under the Youth Corrections Act.”

See Memorandum of March 2, 1972, in Williams v. United States (Civil No. 72-24, W.D.Pa.).

We agree that the record must demonstrate that the district court has made the finding that “the youth offender will not derive benefit from treatment under subsection (b) or (c)” in order to sentence a defendant-youth offender under 18 U.S.C. § 5010(d). See Cox v. United States, 473 F.2d 334, Part III (4th Cir., 1973), and cases cited in notes 2-4 below.

After consideration of this record, we have concluded that the district court order of March 2, 1972, denying the motion to vacate the conviction and sentence, must be affirmed. We note that other federal courts considering subdivision (d) and other subdivisions of 18 U.S.C. § 5010 have held that a sentence under such subdivisions is valid if “the record as a whole” “either explicitly or implicitly” shows that the findings required by the applicable subdivision have been made.

In view of the increasing number of federal cases raising problems similar to that involved in this appeal, and for the guidance of the district courts of this Circuit, we suggest that the findings prescribed by Congress in 18 U.S.C. § 5010(b-d) be made in open court on the record so that the transcript or tape of the sentencing proceeding will clearly disclose that such findings have been made. We do not consider it necessary that the district courts of this Circuit adhere to all the requirements stated as mandatory in United States v. Coefield, 476 F.2d 1152 Part III (D.C.Cir. 1973).

For the above reasons, the order of March 2, 1972, will be affirmed.

      . 18 U.S.C. § 5010(d) provides:
      “(d) If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c), then the court may sentence the youth offender under any other applicable penalty provision.”
      The purposes of the Youth Corrections Act have been set forth in Brisco v. United States, 368 F.2d 214 (3d Cir. 1966), and its terms as applied to persons under 22 years of age described in United States v. Waters, 141 U.S.App.D.C. 289, 437 F.2.d 722, 724 (1970), on remand, 324 F.Supp. 1056 (D.C.1971).

      . See Rogers v. United States, 326 F.2d 56, 58 (10th Cir. 1963).

      . United States v. Waters, 141 U.S.App. D.C. 289, 437 F.2d 722, 725 (1970), on remand, 324 F.Supp. 1056, 1060 (D.C. 1971) ; see also Cox v. United States, supra; Cherry v. United States, 299 F. 2d 325 (9th Cir. 1962).

      . Cf. United States v. Malcolm, 432 F.2d 809 (2d Cir. 1970), and cases there cited, as well as cases cited in notes 2 and 3 above.

      . For example, the requirement of a statement of reasons for the finding under 18 U.S.C. § 5010(d) manifesting, inter alia “an accurate understanding of the scope of his [trial judge’s] discretion under the Act” (476 F.2d at page 1157). Presentence reports are available to the district judges of this Circuit in all such cases and there has been no evidence of the problems which the Ooefield decision indicates have been arising in the District of Columbia.


text:
    In the Matter of Bernard Christian SLAUGHTER v. Andrew J. WINSTON. Bernard Christian SLAUGHTER, Appellant, v. CITY OF RICHMOND, Appellee.
    No. 72-2371.
    United States Court of Appeals, Fourth Circuit.
    Argued April 2, 1973.
    Decided May 1, 1973.
    JeRoyd X. Greene, Richmond, Va., for appellant.
    James R. Saul, Asst. City Atty., for the City of Richmond (Conrad B. Mattox, Jr., City Atty., for the City of Richmond, on brief) for appellee.
    Before HAYNSWORTH, Chief Judge, RUSSELL, Circuit Judge, and BLAIR, District Judge.
   PER CURIAM:

For reasons sufficiently appearing in the opinion of the District Judge, 347 F.Supp. 1221, we conclude that under Virginia law an appropriation of funds by the City of Richmond for the operation of its jails and Office of City Sergeant did not create an ordinary debt subject to garnishment.

Affirmed.


author: PER CURIAM.

text:
    Michael Erin MICK, by his next friend, his father, Billee Scott Mick, Individually and on behalf of all others similarly situated, Appellants, v. Robert SULLIVAN, Principal, Lewis County High School, Weston, West Virginia et al., Appellees.
    No. 72-2160.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 7, 1973.
    Decided April 16, 1973.
    David G. Hanlon, Harrisville, W. Va., for appellants.
    Willis O. Shay, Clarksburg, W. Va. (John S. Holy, Weston, W. Va., on brief), for appellees.
    Before CRAVEN and.RUSSELL, Circuit Judges, and MURRAY, District Judge.
   PER CURIAM.

This is a hair case brought by plaintiff as a class action seeking declaratory and injunctive relief from the application of a public school dress code regulating the style and length of male students’ hair. Even though plaintiff is not now eligible to attend the Lewis County High School, we think the case is not moot since it was brought as a class action.

The district court recognized the law of this circuit that the right to choose one’s hairstyle is one aspect of the right to be secure in one’s person guaranteed by the due process clause and the equal protection clauses of the Fourteenth Amendment. Massie v. Henry, 455 F.2d 779 (1972). Even so, the district court denied relief, expressing its sympathy with the standards and ideals of a sparsely populated, local community as expressed in the school regulation, and its apprehension that long hair might have a potentially disruptive effect on school discipline. Such a basis for decision was specifically rejected in Massie v. Henry, 455 F.2d 779, 783 (4th Cir. 1972).

The judgment of the district court will be vacated and on remand an appropriate judgment will be entered granting the declaratory and injunctive relief sought by the plaintiff and his class.

Vacated and remanded with instructions.


text:
    A. H. ALEXANDER and Mary Alexander, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 72-1014
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 12, 1973.
    Morley H. White, Houston, Tex., for petitioners-appellants.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Tax Div., U. S. Dept, of Justice, K. Martin Worthy, Chief Counsel, Eugene F. Colella, Internal Revenue Service, Washington, D. C., for respondent-appellee.
    Before BELL, GODBOLD and INGRAHAM, Circuit Judges.

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

   PER CURIAM:

In this civil action for assessment of additional wagering income taxes, the taxpayer asserts that evidence gathered by the government for use in a prior criminal action through the device of a search warrant was inadmissible. The taxpayer urges that the Supreme Court’s decision in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), necessitate a declaration that the warrant was per se invalid.

While this circuit has given full effect to a retroactive application of the Marchetti-Grosso rule, United States v. Lucia, 423 F.2d 697 (5th Cir., 1970), cert. denied 402 U.S. 943, 91 S.Ct. 1607, 29 L.Ed.2d 111 (1971), we are not compelled to declare the warrant a nullity. The aforementioned Supreme Court decisions did not abolish the wagering tax statute nor did it abolish the criminal offenses therein specified. Washington v. United States, 402 F.2d 3 (4th Cir., 1968), cert. denied 402 U.S. 978, 91 S.Ct. 1641, 29 L.Ed.2d 145 (1971). They did provide a complete defense to a criminal conviction where the accused properly raises his constitutional privilege against self-incrimination.

In the case at hand we find the warrant to have been proper in all respects. We further find appellants’ remaining contentions without merit.

The judgment of the Tax Court is affirmed.

      . United States v. Scaglione, 446 F.2d 182 at 184-187 (5th Cir., 1971.)


text:
    Lloyd I. HUGHES, Plaintiff-Appellee, v. J. William SHARP, Defendant-Appellant.
    No. 71-2792.
    United States Court of Appeals, Ninth Circuit.
    April 11, 1973.
    Stanley N. Gleis, Robert Ferguson, Beverly Hills, Cal., for defendant-appellant.
    Max L. Gillam, Philip F. Belleville, Joseph A. Wheelock, Jr., Fredric J. Zepp, Latham & Watkins, Los Angeles, Cal., for plaintiff-appellee.
    Before CHAMBERS, HUFSTEDLER and WALLACE, Circuit Judges.
   OPINION

PER CURIAM:

J. William Sharp appeals from an order of the district court holding him in civil contempt for failure to appear at an examination of judgment debtor in proceedings ancillary to execution of judgment. Sharp was fined the amount of his opponent’s attorney’s fees and costs and ordered confined until he had purged himself of the contempt.

Sharp does not contend at this time that he is not the judgment debtor of Hughes. He does contend that he was not properly brought before the court, and that therefore the court lacked personal jurisdiction over him. He also attacks the district court’s subject matter jurisdiction. We express no view on these arguments.

Since Sharp is a party to the pending proceedings, and since those proceedings are still under way, we lack jurisdiction to consider the purported appeal from the district court’s contempt order. That order is interlocutory. See Fox v. Capitol Co., 299 U.S. 105, 57 S. Ct. 57, 81 L.Ed. 67 (1936); Western P.R.R. Corp. v. Western P.R.R. Co., 216 F.2d 513 (9th Cir. 1954); and Hodgson v. Mahoney, 460 F.2d 326 (1st Cir. 1972).

Although this result seems harsh, Hughes was not left without recourse. He can always purge himself of the contempt. Or, he might have moved to quash the process that he now seeks to challenge; and if that motion had been denied, such denial would generally be appealable. Edwin Raphael Co. v. Maharam Fabrics Corp., 283 F.2d 310 (7th Cir. 1960). Finally, he could have sought leave to bring an interlocutory appeal from the contempt order. See 28 U.S.C. § 1292(b).

Notice of appeal was filed on August 4, 1971. The brief for Hughes was filed on April 7, 1972. In that brief Hughes raises the issue of this court’s jurisdiction. The proper course when counsel for Hughes discovered the defect in our jurisdiction was to file a motion to dismiss the appeal. The result of failure to make such a motion has been substantial unnecessary delay in disposition of this cause.

The appeal is dismissed.


text:
    Dohn B. BROADWELL, and Charlotte L. Broadwell, Appellants, v. UNITED STATES of America, Appellee. Waverly C. BROADWELL and Nancy W. Broadwell, Appellants, v. UNITED STATES of America, Appellee.
    Nos. 72-2477, 72-2478.
    United States Court of Appeals, Fourth Circuit.
    Argued April 2, 1973.
    Decided April 18, 1973.
    M. Alexander Biggs and Frank P. Meadows, Jr., Rocky Mount, N. C. (Biggs, Meadows & Batts, Rocky Mount, N. C., on brief), for appellants in Nos. 72-2477 and 72-2478.
    Janet R. Spragens, Atty., Tax Division, U. S. Department of Justice (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwaeks, and Paul M. Ginsburg, Attys., Tax Division, U. S. Department of Justice, and Warren H. Coollidge, U. S. Atty., on brief), for appellee in Nos. 72-2477 and 72-2478.
    Before SOBELOFF, Senior Circuit Judge, and FIELD and WIDENER, Circuit Judges.
   PER CURIAM:

These are actions for refund of federal income taxes. The basic question presented is the perennially thorny issue of whether the profit from the sale of an option on land is properly treated as capital gain or ordinary income.

The plaintiffs, Dohn and Waverly Broadwell, and their respective spouses opted for a jury trial. They made no objection to the instructions given the jury by the District Judge. After the jury’s verdict was entered against them and in favor of the Government, the Broadwells sought to have the District Judge grant either a motion for judgment notwithstanding verdict or a motion for a new trial on the theory that evidence would not support the jury verdict. The District Judge denied these motions and the present appeal ensued.

It may well have been a strategic error for the plaintiffs to opt for a jury trial. Nonetheless, the Broadwells deliberately elected to have the fate of their claim settled by a jury. They chose to have them rather than a judge make the factual inquiry of whether the option in question was held for sale to customers in the course of the sellers’ trade or business. Thus, the only question for the court on this appeal is whether the verdict of the jury was clearly erroneous. See Tidwell v. Commissioner, 298 F.2d 864, 866 (4th Cir. 1962); Lakin v. Commissioner, 249 F.2d 781, 783 (4th Cir. 1957).

Having reviewed the record on appeal, and the briefs of both parties, we find that the Government presented evidence, which if viewed in the light most favorable to it, could support the jury’s verdict. The judgment of the lower court is therefore

Affirmed.


author: JOHN R. BROWN, Chief Judge:

text:
    T. L. BISHOP et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant. Joe MAGEE et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant. Nathan BOUDOIN et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant. GULF TRAWLERS, INC., Sidney E. Herndon, d/b/a Herndon Marine Products Co., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant. JOHNSON & JOHNSON PROCESSORS, INC., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
    No. 71-3550.
    United States Court of Appeals, Fifth Circuit.
    Feb. 27, 1973.
    Ben A. Douglas, Atty., Tax Div., Dept. of Justice, Dallas, Tex., Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., Scott P. Crampton, Asst. Atty. Gen., Tax Div., Meyer Rothwacks, Chief, Appellate Section, Issie L. Jenkins, Atty., Dept. of Justice, Washington, D. C., for defendant-appellant.
    Joseph J. Lyman, Washington, D. C., Eli Mayfield, Palacios, Tex., for plaintiffs-appellees.
    Before JOHN R. BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

The ten year Odyssey of who is the employer — shipmaster or shipowner — of crew members of fishing vessels working on a lay for the payment of FICA and FUTA taxes commenced in an abortive effort to enjoin the Government, Enochs v. Williams Packing Co., 1962, 870 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292; but followed shortly by the unfavorable decision to the Government in Crawford Packing Co. v. United States, S.D., Texas, 1962, 228 F.Supp. 549, aff’d., 5 Cir., 1964, 330 F.2d 194, sustained momentarily in Webb I, United States v. Webb, Inc., 5 Cir., 1968, 402 F.2d 956, but stranded by Supreme Court reversal, 1970, 397 U.S. 179, 90 S.Ct. 850, 25 L. Ed.2d 207, with a holding for the Government in Webb II on remand to us, United States v. Webb, Inc., 5 Cir., 1970, 424 F.2d 1070, and extended articulation of controlling principles in Anderson v. United States, 5 Cir., October 1971, 450 F.2d 567; may hopefully, cf. Parr v. United States, 5 Cir., 1972, 469 F.2d 1156, be closer to an end as we dispose of a series of cases decided subsequent to our per curiam reversal in Webb II, but prior to our October 1971 decision in Anderson.

We hold that the seamen are employees of the shipowner, not the ship-master, and once again reverse.

To bring this nearer to a close what we write is not for those to read who run. Without repetition we start against the background of what has been written and done before. But in the quest for standards to guide both litigants and District Courts we think some things merit brief discussion.

As before, our contrary conclusion does not rest on a rejection of the trial Judge’s findings of fact, so we need not resolve the oft-times troublesome problem of deciding whether our review is of facts as to which the Plimsoll line of F. R.Civ.P. 52(a) cases is the determinant or whether it is a case for unrestricted review as a question of law. We simply determine that the facts found by the District Court are not significantly different from those in Anderson and— as there and in Webb II — we hold that they are insufficient to make out the requisite surrender of control of the vessel by her owner to the master. With that we could perhaps rest without saying more. But in view of the tenacity of counsel for all of the litigating shipowners who has persevered undaunted with that “ant-like persistence of solicitors,” Lyon v. Boh, S.D.N.Y., 1924, 1 F. 2d 48, 50, we think some further discussion is appropriate.

Having failed in Anderson for “application of a sort of brackish form of land-based common law principles,” 450 F.2d at 570 and n. 5, the taxpayers no longer urge us to dilute its salinity. What they seek now is not a maritime law for the Medes and Persians which altereth not. Rather they seek a maritime law of demise charter for injury-death-Jones Act-Sieracki-Ryan-Yaka purposes on a stricter “humanitarian” basis and another parallel, but much looser, standard for “commercial” purposes which would obviously include tax cases.

This argument is essentially built on the cautious words of the Supreme Court as it (i) held that maritime standards should control but (ii) did not undertake to assay either what that law was or what the Fifth Circuit would or should do under it.

In Webb I we stated that if “ * * * we were free to apply maritime law •x- -x- we woui(j reverse * * * because it is clear that under maritime law the captain is the agent of the owner * * * and the crew hands are employees.” Because in this Webb I discussion we had referred to injury/ death/Jones Act situations, shipowners then focused on the Supreme Court’s reservation: “We are not called upon to, and do not, intimate any view on the correctness of the Court of Appeal’s statement on this score.” 397 U. S. at 182, n. 4, 90 S.Ct. at 851, n. 4, 25 L.Ed.2d at 210, n. 4.

But this argument is not sound and, worse, it is two cases too late so far as this panel’s ability or willingness to take action short of an en banc — which we do not suggest. Of importance to the Supreme Court was the question — and its decision — of maritime principles. Having decided that, it properly left the elucidation of those principles to the lower courts. And when it came back to us in Webb II we effectively answered the question that such injury/death cases were a proper source of maritime law. And this was reiterated in Anderson.

But, more fundamentally, there is no basis for thinking, as the District Judge characterized it, that courts have “deviated from the general maritime law in personal injury cases” in determining the existence of a demise charter. There is but a single, not as urged a double, standard: Has the shipowner surrendered virtually complete possession, control and navigation to the non-owner (charterer) ? If so, it is, if not, it’s not, a demise.

More than that, the law respecting injury/death is not some recent intrusion on maritime law. It is a part of the whole. What the maritime jurisprudence would compel is to be influenced by its presence as a part of the whole, not as some supposed outside, foreign principle. And as with any growing decisional-oriented body of law, current developments in response to contemporary problems may well bring about a modification of formerly settled principles m related or adjacent areas.

In Webb II and Anderson we have not depended solely on injury/death holdings. But they have been, now are, and will be — along with the full body of charter party law — a significant permissible source for the conclusion that these arrangements lack that “nearly total relinquishment of control” to constitute “a bare boat, or demise, charter”, 397 U.S. at 192, 90 S.Ct. at 856, 25 L.Ed.2d at 216.

We need not catalogue beyond that done in Anderson the factors, plus or minus, bearing on demise. One is critical, another significant. Although in practice the masters chosen to take over a vessel tended to serve for a considerable time, the Court expressly found that either could terminate at any time — certainly on sale of the catch at the port of arrival. Considering the relative economic disparity between the owner of an expensive ocean-going vessel with high costs for operation, bunkering, maintenance and insurance, and a prospective master whose only investment in the enterprise is his time and energy, this right to terminate is a powerful force. The notion that such a master really has the full command, possession and control of the ship to do as he pleases in that fishing trade is simply not realistic. See Stevens v. Seacoast Co., 5 Cir., 1969, 414 F.2d 1032.

That leads to the other factor we described as significant. Except for extraordinary situations the master was to deliver the catch for sale or receipt at a specified place. Lacking any real economic independence in the employment of the vessel vis-a-vis the shipowner, the master and his crew are really a part of the owner’s enterprise and all of the various parts of the arrangement are simply a means of calculating compensation.

The so-called independence of these masters from detailed orders on how to perform their work is beguiling. But this is not unique to the arrangement. This inheres in the calling of those who go down to the sea in ships. On the most obscure of vessels the master is the Lord of the Quarter Deck. See United Geophysical Co. v. Vela, 5 Cir., 1956, 231 F.2d 816, 819. He may receive a barrage of radio messages but he is in command. Indeed, reserving the right to direct navigational details would violate not only the traditions of the sea which form a significant part of maritime law, but would also expose such an unwitting owner to a certain loss of his right to limitation of liability, 46 U.S.C.A. § 183 et seq.

On the saline standards of maritime law — the common law of the sea — the shipowners retained significant control and the master and crew members are his employees for life, death and taxes.

Reversed.

      . Elizabeth Ann, Inc. v. United States, 5 Cir., 1973, 476 F.2d 980; Carleen F. Inc. v. United States, 5 Cir., 1973, 476 F.2d 981; Mayport Fisheries Company v. United States, 5 Cir., 1973, 476 F.2d 981.

      . See Bishop v. United States, S.D.Texas, May 1971, 334 F.Supp. 415, 421-425, for the Court’s finding of fact.

      . See Anderson, 450 F.2d 570, n. 8, which quotes in full from Webb I.

        . This was preceded by the recital from our Webb I (see note 3, supra) and the Court’s statement:
      “It [Court of Appeals] reviewed the facts and observed that ‘it is clear that under maritime law the captain is the agent of the owner * * * and the crew hands are employees,’ and that ‘if we were free to apply maritime law as a test of the employer-employee relationship we would reverse the decision of the district court.’ ”
      397 U.S. at 182, 90 S.Ct. at 851, 25 L. Ed.2d at 210.

      . Certiorari was denied, 1970, 400 U.S. 902, 91 S.Ct. 138, 27 L.Ed. 138 but the Court is free and just might, re-review it in the current cases. See Hughes Tool Co. v. TWA, 1973, 409 U.S. 363, n. 1, 93 S.Ct. 647, 34 L.Ed.2d 577 [January 10, 1973].

      . “The courts have deviated from the general maritime law in personal injury and wrongful death cases by requiring, for humanitarian reasons, that fishermen, being wards of the sea, not be precluded ipso facto from recovery simply by the construction of an implied demise. The Court does not believe that cases which create an enlarged standard for humanitarian purposes should be considered as changing the general maritime law or the maritime common law.”
      D. C., 334 F.Supp. at 418.

      . We cannot improve on Anderson, 450 F.2d at 572, n. 13, in the articulation of criteria.

      . In Vela, we made the following observation about the authority of the ship master:
      “But navigation in these circumstances is left neither to Judges nor the Elder Brethren of Trinity House nor those who, in the garb of experts, from the security of a swivel chair now lay out the course with great conviction. “The master is the commander of the ship— lord of his little world. He is master in every sense of the word * * * ” The Balsa, 3 Cir., 10 F.2d 408, 409. Whether he has bridge or quárterdeek to stalk, as long as he commands, he is master. It is the Master, then, who must make these decisions and who, clothed with great responsibility, enjoys the greatest and widest of good faith latitude in professional judgment.”
      231 F.2d at 819. But see Avera v. Florida Towing Corp., 5 Cir., 1963, 322 F.2d 155, 164; Boudoin v. McDermott & Co., 5 Cir., 1960, 281 F.2d 81, 87.

      . Shipowners stress some early cases which have held in their situations that to be a demise the charterer did not have to provide fuel, stores, victuals, etc. Significantly, Congress requires this to qualify as a vessel owner for limitation of liability, 46 U.S.C.A. § 186.


text:
    ELIZABETH ANN, INCORPORATED, et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
    No. 71-3376.
    United States Court of Appeals, Fifth Circuit.
    Feb. 27, 1973.
    Scott P. Crampton, Asst. Atty. Gen., Tax Div., Dept, of Justice, Washington, D. C., Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., Michael D. Cropper, Meyer Rothwacks, Issie L. Jenkins, Attys., Tax Div., Dept, of Justice, Washington, D. C., for defendant-appellant.
    Eli Mayfield, Palacios, Tex., Joseph Lyman, Washington, D. C., for plaintiffs-appellees.
    Before JOHN R. BROWN, Chief Judge, and GODBOLD and SIMPSON. Circuit Judges.
   PER CURIAM:

This case is substantially the same as, and controlled by, Bishop v. United States, 5 Cir., 1973, 476 F.2d 977.

Reversed.


text:
    CARLEEN F, INCORPORATED, et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
    No. 71-3377.
    United States Court of Appeals, Fifth Circuit.
    Feb. 27, 1973.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Tax Div., Dept, of Justice, Washington, D. C., Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., Michael D. Cropper, Issie L. Jenkins, Attys., Tax Div., Dept, of Justice, Washington, D. C., for defendant-appellant.
    Eli Mayfield, Palacios, Tex., Joseph Lyman, Washington, D. C., for plaintiffs-appellees.
    Before JOHN R. BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.
   PER CURIAM:

This case is substantially the same as, and controlled by, Bishop v. United States, 5 Cir., 1973, 476 F.2d 977.

Reversed.


text:
    MAYPORT FISHERIES COMPANY et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
    No. 71-3046.
    United States Court of Appeals, Fifth Circuit.
    Feb. 27, 1973.
    Gerald Gallinghouse, U. S. Atty., New Orleans, La., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Fred B. Ugast, Issie L. Jenkins, Attys., Tax Div., U. S. Dept, of Justice, Washington, D. C., for defendant-appellant.
    David E. Hogan, New Orleans, La., Joseph J. Lyman, Washington, D. C., Dorothy Cowen, New Orleans, La., for plaintiffs-appellees.
    Before JOHN R. BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.
   PER CURIAM:

On facts significantly less favorable to taxpayers this case is controlled by Bishop v. United States, 5 Cir., 1973, 476 F.2d 977.

Reversed.