author: LAY, Circuit Judge.

text:
    ACME PRECISION PRODUCTS, INC., and William F. Jobbins, Inc., Appellees, v. AMERICAN ALLOYS CORPORATION, Appellant.
    Nos. 72-1360, 72-1585 and 72-1595.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 17, 1973.
    Decided Sept. 25, 1973.
    Rehearings Denied Oct. 30,1973.

      Thomas M. Scofield, Kansas City, Mo., for American Alloys.
    Theodore R. Scott, Chicago, 111., for Acme.
    Veryl L. Riddle, St. Louis, Mo., for Jobbins.
    Before MATTHES, Senior Circuit Judge, LAY and STEPHENSON, Circuit Judges.
   LAY, Circuit Judge.

We are presented with cross appeals arising from a judgment on a counterclaim in favor of American Alloys Corporation based on alleged violations of the antitrust laws in the fraudulent procurement and enforcement of a patent pertaining to an aluminum-magnesium casting alloy, known in the trade as Almag 35.

The original action was commenced on December 22, 1962, by the owner of the patent, Acme Precision Products, Inc. (hereinafter Acme) and William F. Jobbins, Inc. (hereinafter Jobbins II), Acme’s exclusive licensee, against the defendant American Alloys Corporation (hereinafter American Alloys), for patent infringement. In 1967 American Alloys counterclaimed, asserting that the patent had been procured by fraud upon the patent office and that the plaintiffs had continually sold the patented alloy, Almag 35, with knowledge of the fraudulent procurement. The defendant prayed for damages arising from an illegal monopoly in violation of Section 2 of the Sherman Anti-Trust Act, 15 U.S.C. § 2. See Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965). The district court found that the patent was invalid in view of the prior art and the doctrine of obviousness, and dismissed the complaint. Defendant’s counterclaim was likewise dismissed since the court held there was no evidence that the plaintiffs were enforcing the patent with knowledge of fraudulent procurement. Acme Precision Products, Inc. v. American Alloys Corp., 347 F. Supp. 376 (W.D.Mo.1972). On appeal this court held the finding as to lack of knowledge clearly erroneous and reversed and remanded the case for a plenary trial. Acme Precision Products, Inc. v. American Alloys Corp., 422 F.2d 1395 (8th Cir. 1970).

We held that the knowledge of the plaintiffs as to the facts surrounding procurement of the patent was established as a matter of law. Id. at 1397. Similarly, in view of the interlocking structure and relationship of Acme and Jobbins II and the role of C. V. Cooper, who until his death in 1960 served as President of Jobbins II, our prior decision held that the two corporations and their officers continued to enforce the patent with full knowledge of the events surrounding its issuance. Id. at 1398.

This court remanded the case to the district court with the remaining issues being (1) whether there was collusion in obtaining the Willmore ’044 patent by concealing relevant facts as to the prior art and prior public use of the process from the patent office and (2) the existence of the other elements of a § 2 charge under the Sherman Act, i. e., the relevant market for the product involved, the dominant position of the party charged and damages, if any. Id. at 1400.

The district court found fraud in the procurement of the patent, as well as the fact of dominance by Acme and Job-bins II in a defined relevant market. However, the district court refused to award treble damages for lost sales since it found that American Alloys’ loss of sales was not related to the alleged mo-noply or infringement suit. The court did award the defendant $75,260.51 trebled for attorneys’ fees and costs in defending the infringement suit and $50,-000.00 for attorneys’ fees and costs for prosecution of the antitrust counterclaim. American Alloys/ as the counter-claimant, appeals from the denial of damages based on the alleged loss of sales, and the original plaintiffs, Acme and Jobbins II, who procured and enforced the patent, cross-appeal challenging the court’s findings as to (1) proof of fraud, (2) the determination of the relevant market, (3) the dominance of plaintiffs in the market and (4) the award of attorneys’ fees.

We find the district court erred in holding that the proof was sufficient to show that Acme and Jobbins II dominated a relevant market and thus monopolized or attempted to monopolize in violation of the antitrust laws. Thus, the trebling of the award for attorneys’ fees and costs in defending the infringement suit and the award of attorneys fees and costs for prosecution of the antitrust counterclaim were erroneous. We do find sufficient evidence to support the district court’s finding that there was fraud in the procurement and enforcement of the patent. Under these circumstances, it was within the discretion of the district court to award untrebled attorneys’ fees for the expense of defending the patent infringement suit under 35 U.S.C. § 285. Thus, we sustain only the award of $75,260.51 for defense of the infringement suit.

FRAUD ON THE PATENT OFFICE

Although the district court made no specific findings relating to fraud it held that there was overwhelming evidence of fraud in the procurement of the patent. The court found that “the applicant concealed material facts as to prior art and commercial use” and made “deliberate misrepresentations . as to new art in limiting impurities.” 347 F.Supp. at 378.

Upon examination of the record we find sufficient evidence to support the trial court’s conclusions as to fraud. In summary, the record shows that: (1) the Willmore patent application for Almag 35 was granted only after its claims were amended to limit impurities to 0.45%; yet the record is undisputed that Cooper’s Almag was sold commercially as early as 1946 with less than 0.45% impurities; (2) William McKnight of Jobbins I supervised both the Cooper and Willmore patent applications; the record shows that Will-more met with Cooper’s attorney to discuss the two applications with the hope of “salvaging one or more of these applications”; (3) there was close similarity in the beryllium content of both alloys; it was agreed that Cooper was the inventor of Almag 35 with a beryllium content of .05% and above; yet Willmore’s patent application for Almag 35 claimed beryllium ranges at least as high as .07%; (4) Cooper’s alloy had the same tensile strength, elongation and ductility as Almag 35; (5) Wayne Martin, plaintiffs’ expert witness, testified that Willmore’s application inaccurately described the state of the prior art; (6) Cooper received a royalty from the Willmore patent. The close relationship of the parties, more fully detailed in our earlier opinion, 422 F.2d at 1397, when considered with all the facts and circumstances surrounding the issuance of the patent, wherein the examiner granted the letters solely because of Willmore’s limitation on impurities, lends strong support to the trial court’s findings that the patent was obtained and enforced with knowledge of fraud on the patent office. As stated by the Court in Precision Instrument Manufacturing Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 818, 65 S.Ct. 993, 999, 89 L.Ed. 1381 (1945):

“Those who have applications pending with the Patent Office . . . have an uncompromising duty to report to it all facts concerning possible fraud or inequitableness underlying the applications in issue.”

ANTITRUST LAWS: RELEVANT MARKET

Section 2 of the Sherman Act reads in part: “Every person who shall monopolize, or attempt to. monopolize, . any part of the trade or commerce (Our emphasis). Notwithstanding the implications of Lessig v. Tidewater Oil Co., 327 F.2d 459 (9th Cir. 1964), we hold that regardless of the particular charge, i. e., “monopolization” or “attempt to monopolize,” proof of a relevant market is still a prerequisite for establishing a § 2 violation.

As stated so succinctly by the district court in Diamond International Corp. v. Walterhoefer, 289 F.Supp. 550, 576-577 (D.Md.1968):

“It seems to this court clear, both on authority and logic, that when a charge is made of attempt to monopolize, the first question would be — ‘to monopolize what?’ The answer would seem to be ‘the relevant market, toward the monopolization of which the attempt was directed.’ Were this not so, there would be the anomaly that a defendant could be punished for attempting to do what, if accomplished, would be legal. That is, if a defendant in fact acquired a position in a relevant market that did not amount to monopoly, how could it be wrongful for a defendant to attempt, successfully or unsuccessfully to acquire that position — i. e., to try to do that which if accomplished would be valid?”

See also Agrashell, Inc. v. Hammons Products Co., 479 F.2d 269 (8th Cir. 1973).

The district court’s finding relating to the relevant market is wanting for specificity of fact. The court simply states:

“The relevant market was clearly shown. There was no substitute in existence for this high-strength aluminum alloy. Government specifications called for it. It seems obvious that the giant aluminum producers would not have paid the royalty if there were effective substitutes which did not infringe the patent.” 347 F. Supp. at 378.

Undoubtedly one of the reasons for the lack of specificity in the district court’s finding as to the relevant market is the noticeable absence of proof relating to the competitive structure within the aluminum alloy market. American Alloys urges that it has defined the relevant market in its proof that Acme, the owner of the ’044 patent on Almag 35, and Jobbins II, Acme’s assignee, controlled a unique market in which Amal-loy, the alleged infringing alloy owned by American Alloys, provided the only competition.

American Alloys urges that the low level of impurities in Almag 35 and Amalloy give these alloys greater critical strength and that this sets them apart from any other aluminum alloy on the market. It is thus contended that Almag 35 clearly dominates the “relevant market” by controlling more than 70% of the Almag 35-Amalloy market.

The United States Supreme Court’s decision in United States v. E. I. duPont de Nemours & Co., 351 U.S. 377, 76 S.Ct. 994, 100 L.Ed. 1264 (1956), provides the basic guidelines for determining the relevant market under the Sherman Act. DuPont was charged with monopolizing interstate commerce in cellophane. DuPont produced almost 75% of the cellophane sold in the United States. However, the Supreme Court held that the relevant market for determining whether duPont had monopolized trade consisted of all flexible packaging materials, rather than cellophane alone. The evidence showed that duPont produced only 17.9% of all flexible packaging materials sold in the United States.

Although determination of the relevant market is essentially a fact question, see, e.g., United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); International Boxing Club v. United States, 358 U.S. 242, 79 S.Ct. 245, 3 L.Ed.2d 270 (1959), and United States v. E. I. duPont de Nemours & Co., 351 U.S. 377, 76 S.Ct. 994, 100 L.Ed. 1264 (1956); ABA Antitrust Section, Antitrust Developments: 1958-1968 at 25 (1968), nevertheless there are certain legal guidelines applicable to all cases. The duPont test summarized by .the Supreme Court is simply stated:

“The ‘market’ which one must study to determine when a producer has monopoly power will vary with the part of commerce under consideration. The tests are constant. That market is composed of products that have reasonable interchangeability for the purposes for which they are produced— price, use and qualities considered.” DuPont, supra at 404, 76 S.Ct. at 1012.

Throughout the opinion, the Court made it clear that the availability of reasonable substitutes was the significant factor:

“Every manufacturer is the sole producer of the particular commodity it makes but its control in the above sense of the relevant market depends upon the availability of alternative commodities for buyers: i. e., whether there is a cross-elasticity of demand between cellophane and the other wrappings. This interchangeability is largely gauged by the purchase of competing products for similar uses considering the price, characteristics and adaptability of the competing commodities.” DuPont, supra at 380-381, 76 S.Ct. at 999.
“The varying circumstances of each case determine the results. In considering what is the relevant market for determining the control of price and competition, no more definite rule can be declared than that commodities reasonably interchangeable by consumers for the same purposes make up that ‘part of the trade or commerce,’ monopolization of which may be illegal.” DuPont, supra at 395, 76 S.Ct. at 1007.

When one considers the obvious differences between cellophane and other packaging materials, for example, tin foil or saran wrap, it is evident that the Court did not intend to limit the substitution test to fungible goods. “What was important was interchangeability in end use. Of course, the more similar a product is in appearance or use, the better the chance of its being included as a substitute.” Hampton & Hibner, Horizontal Restraints of Trade — The Sherman Act, in Antitrust Advisor 57 (C. Hills ed. 1971).

Nevertheless, application of the test often produces varying results. For example, in International Boxing Club v. United States, 358 U.S. 242, 79 S.Ct. 245, 3 L.Ed.2d 270 (1959), the Supreme Court concluded that championship boxing matches constituted the “cream” of the boxing business, and were a sufficiently separate part of .trade or commerce to constitute the relevant market. See also United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966).

It is clear that every case requires an ad hoc determination of the relevant market. As the court said in Diamond International Corp. v. Walterhoefer, 289 F.Supp. 550, 577 (D.Md.1968), “[t]he decided cases give no real help for an a priori determination of interchangeability.”

The burden of proof as to the relevant market and plaintiffs’ alleged illegal domination of it rests on the claimant, American Alloys. See, e.g., Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 177-178, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965), and duPont, supra 351 U.S. at 381, 76 S.Ct. 994. American Alloys’ proof, as indicated, is simply that other alloys are not competitive with its Amal-loy and Almag 35. The record does not sustain this contention. The evidence produced by plaintiffs is that there is a large market demand for alloys, known as 218, which possess similar characteristics and are used for similar purposes. There are certain differences between the 218 alloys and Almag 35-Amalloy alloys. The A-218 alloy, produced by Olin and Alcoa, omits beryllium, the B-218 alloy produced by Alcoa, does not contain manganese and the Reynolds B-218 alloy omits titanium. However, the only fundamental consequence of these differences appears to be that the critical yield strength of Almag 35 and supposedly Amalloy is greater. In all other respects the alloys are identical. They all possess the same tensile strength and each has the same elongation and ductility. Moreover, as will be discussed, the record is undisputed that the various alloys are interchangeable in 95% of their applications. The only other proof offered by American Alloys is that the 218 alloys are “cheaper.” The record is totally silent as to how much cheaper or as to what effect the price differential has on the market involved.

“[T]he average revenue from all sources for appellants’ championship bouts was $154,000, compared to $40,000 for their nonchampionship programs; that television rights to one championship fight brought $100,000, in contrast to $45,000 for a nontitle fight seven months later between the same two fighters; that the average ‘Nielsen’ ratings over a two-and-one-half-year period were 74.9% for appellants’ championship contests, and 57.-7% for their nonchampionship programs (reflecting a difference of several million viewers between the two types of fights) ; that although the revenues from movie rights for six of appellants’ championship bouts totaled over $600,000, no full-length motion picture rights were sold for a non-championship, contest; and that spectators pay ‘substantially more’ for tickets to championship fights than for nontitle fights. In addition, numerous representatives of the broadcasting, motion picture and advertising industries testified to the general effect that a ‘particular and special demand exists among radio broadcasting and telecasting [and motion picture] companies for the rights to broadcast and telecast [and make and distribute films of] championship contests in contradistinction to similar rights to non-championship contests.’ ” International Boxing Club, supra at 250-251, 79 S.Ct. at 250.

The difficulty with the present record is the overwhelming evidence demonstrating that Almag 35 and Amalloy are in substantial competition with the 218 alloys. Plaintiffs proved that the only specifications calling for the higher yield strength of Almag 35 come from the Atomic Energy Commission and the military. According to plaintiffs’ expert witness this amounts to only 5% of the total demand on all the companies which sell Almag 35, Amalloy and all other competitive aluminum alloys.

This evidence was corroborated by the President of American Alloys, John Clay. He testified that 218 alloys and Almag 35-Amalloy alloys were suitable for many of the same applications. There is additional evidence that many of the sales American Alloys claims it lost to sales of Almag 35 by Jobbins II and its licensees were in fact lost to the 218 alloys.

It is difficult to restrict the market to Almag 35 and Amalloy in light of Mr. Clay’s testimony. Mr. Clay was asked:

“Q. What other alloys are available on the market today or have been in the past few years that serve the same purpose or can be used for the same applications as Almag 35 and Amalloy ? A. Well, I think 218. You have to qualify that, Mr. Scott. You are talking about 218. There is an A-218, B-218 and you will find that some of these, particularly the Alcoa 218, is very close to either Almag or Amalloy, and I think—
“Q. For many applications, at least, it could be used? A. That is right.
“Q. I think you mentioned that you sold Amalloy in competition with some alloy that was made by Aluminum and Magnesium in your direct examination. A. I believe we have, I don’t know the number of it, but I am sure that they made one.
“Q. But you can’t recall that particular alloy? A. No.
“Q. It was suitable for use in some applications for which Amalloy is substituted, is that right? A. Yes, that’s right, and I think that U.S. Reduction had a Magalloy that was in the range of Amalloy or Almag, I am sure they did.
“Q. So that was another one that sometime during this period was competitive with Amalloy and Almag 35? A. Yes.”

We find that the relevant market is much broader than that urged by defendant. Defendant urges that Almag 35 and Amalloy are the “cream” of the market as shown by plaintiffs’ patent and plaintiffs’ own advertising. But this argument is not convincing in view of the overall record of competitive interchangeability of all alloys marketed. As stated by the Supreme Court in du-Pont:

“But where there are market alternatives that buyers may readily use for their purposes, illegal monopoly does not exist merely because the product said to be monopolized differs from others. If it were not so, only physically identical products would be a part of the market. To accept the Government’s argument, we would have to conclude that the manufacturers of plain as well as moisture-proof cellophane were monopolists, and so with films such as Pliofilm, foil, glassine, polyethylene, and Saran, for each of these wrapping materials is distinguishable.” DuPont, supra, 351 U.S. at 394, 76 S.Ct. at 1006.

The argument that buyers would not pay the royalties for Almag 35 if it did not constitute a separate market is unconvincing. Use of a specific product turns on many variables determined by the individual preferences of the specific buyer. Thus, as in duPont, buyers may prefer cellophane because of its alleged superior qualities over some other flexible wrapper and be willing to pay a higher price. Yet this does not of itself place cellophane in a separate market. The “end use” of a product has a greater influence on the determination of “cross-elasticity” than the higher price of a more desirable product.

We conclude that the overall proof is grossly deficient in showing the extent of the relevant market and plaintiffs’ domination of it. The evidence clearly demonstrates that the relevant market includes more alloys than Almag 35 and Amalloy. The district court did not award damages for lost sales. In view of our finding we need not pass on this issue. The finding that American Alloys is entitled to attorneys’ fees under the Clayton Act is reversed; defendant is allowed attorneys’ fees under 35 U.S.C. § 285 for the defense of the infringement suit.

Judgment reversed and remanded for entry of judgment in the sum of $75,-260.51 for attorneys’ fees and costs.

      . The factual history is fully set forth in our prior opinion, 422 F.2d at 1397.

      . Under 35 U.S.C. § 285 the court may allow reasonable attorneys’ fees “in exceptional cases.” Fraud on the patent office is an exceptional case. See Monolith Portland Midwest Co. v. Kaiser Aluminum & Chemical Corp., 407 F.2d 288, 294 (9th Cir. 1969). We deem it inconsequential that the district court made the trebled award under § 15 of the Clayton Act, 15 U.S.C. § 15, rather’than allowing only single damages under 35 U.S.C. § 285.

      . Cf. United States v. E. I. duPont de Nemours & Co., 351 U.S. 377, 76 S.Ct. 994, 100 L.Ed. 1264 (1956). The evidence in duPont relating tó proof of dominance in a relevant market is detailed in Appendix A of the Court’s opinion, 351 U.S. at 405-410, 76 S.Ct. 994.

      . The sales area for Amalloy was described as “roughly . . . through the Ohio Valley, in Wisconsin and up through Toledo, Ohio, Detroit; it takes in Wisconsin, Minnesota, Iowa, Nebraska, Illinois, Missouri, Texas, Oklahoma, Arkansas, Louisiana, Indiana.” American Alloys’ proof as to the geographic sales area of Jobbins II and Acme, as well as Reynolds, Olin, Alcoa, Alcan and “secondary smelters” was only that they covered “a wider area” of the United States.

      . This includes the total sales made by Acme, Jobbins II and all of Jobbins II’s licensees. Plaintiffs alone sold 44.6% of the Almag 35-Amalloy market.

      . The facts upon which this conclusion was based were set out in the opinion:

      . Although price is certainly an important factor in determining the interchangeability of products, it is not the sole consideration. In
        duPont, the Supreme Court noted the existence of price differentials between cellophane and other flexible packaging materials. However, these were not deemed significant enough to make cellophane the relevant market. DuPont, supra at 396, 76 S.Ct. 994. In Bendix Corp. v. Balax, Inc., 471 F.2d 149 (7th Cir. 1972), the Seventh Circuit held that swaging taps, which cost twice as much as cutting taps, were in the same market as cutting taps.

      . Plaintiffs’ expert, Wayne Martin, testified:
      “Q. Is that alloy being sold today in competition with Almag 35? A. Yes, in quite substantial quantities.
      “Q. For what applications? A. Any place where somebody feels they can do just as well without quite such a high yield strength, and there are many applications where this applies. The percentage elongation, the tensile strength is practically the same. So where critical yield strength is not important, somebody could use this alloy and get along all right. Now, the Reynolds Metals Company, they are selling one. I think theirs is called A-218, and it is extremely similar to Almag which William F. Jobbins sells. Their titanium is slightly low.
      “Q. And is that also being sold in competition with Almag 35 today? A. Yes, in quite sizable quantities. They take business. Both of these firms have taken a substantial amount of business away from us with these two alloys.”

      . Ironically, the evidence shows that defendant’s Amalloy could not meet the higher specifications of the Atomic Energy Commission and the military. Under the evidence it would appear only Almag 35 qualified for this specialized market.

      . In Bendix Corp. v. Balax, Inc., 471 F.2d 149 (7th Cir. 1972), the court held that swaging taps and cutting taps were in the same relevant market. The court found reasonable interchangeability between the two products despite the cost differential. The court relied upon the fact that swaging taps were reasonably interchangeable with approximately 50% of the cutting tap market.

      . As tlie Supreme Court indicated in AuPont, “cellophane combines the desirable elements of transparency, strength and cheapness more definitely than any of the others.” DuPont, supra at 398, 76 S.Ct. at 1009. Yet the district court found that:
      “132. The price of cellophane is today an obstacle to its sales in competition with other flexible packaging materials.
      “133. Cellophane has alway been higher priced than the two largest selling flexible packaging materials, wax paper and glassine, and this has represented a disadvantage to sales of cellophane.” Id. at n. 29.


source: Caselaw Access Project

author: HOLLOWAY, Circuit Judge.

license: Public Domain

text:
    WYOMING OUTDOOR COORDINATING COUNCIL et al., Plaintiffs-Appellants, v. Earl L. BUTZ, in his official capacity as Secretary of the United States Department of Agriculture, et al., Defendants-Appellees.
    No. 73-1477.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Aug. 14, 1973.
    Decided Sept. 21, 1973.

      John D. Leshy, Palo Alto, Cal. (Toby Sherwood, Palo Alto, Cal., John R. Hursh, Riverton, Wyo., and Jack Speight, Cheyenne, Wyo., on the brief), for plaintiffs-appellants.
    Robert L. Klarquist, Atty., Dept, of Justice, Washington, D. C. (Wallace H. Johnson, Asst. Atty. Gen., Richard Y. Thomas, U. S. Atty., Cheyenne, Wyo., and Carl Strass, Atty., Dept, of Justice, Washington, D. C., on the brief), for defendants-appellees.
    Richard I. Leedy, Riverton, Wyo. (James L. Hettinger, Hettinger & Lee-dy, Riverton, Wyo., on the brief), for defendant-appellee, Champion International Corp.
    Before SETH, HOLLOWAY and DOYLE, Circuit Judges.
   HOLLOWAY, Circuit Judge.

Appellants seek declaratory, injunctive and mandamus relief against road building and logging in connection with two contracts for the sale of timber from areas in the Teton National Forest in Wyoming which the appellees would carry out without preparation and distribution of an environmental impact statement (EIS) as provided by Section 102(2) (C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.A. § 4332(2) (C). Appellants’ position is that the statute bars performance of the contracts until the requirements of NEPA have been met. The District Court upheld the decision of the federal officials that the sales did not involve a major federal action significantly affecting the quality of the human environment and that the impact statement requirement did not apply. 359 F.Supp. 1178.

We are unable to agree with the District Court. In view of facts that are undisputed as to various actions to be taken under the contracts affecting large undeveloped areas in the Teton Forest, and the strict provisions and policy underlying the statute, we are convinced that the impact statement procedures were required to be followed.

The proceedings and decision in the District Court

At the commencement of the suit the District Court temporarily restrained timber cutting and road building in the sale areas. The Court consolidated the hearing on the preliminary injunction application with the trial on the merits. After trial without a jury the Court entered findings and conclusions favorable to the appellees, dissolved the restraining order and dismissed the cause. After a notice of appeal was filed, this Court granted relief enjoining the carrying out of the contracts pending disposition of the appeal.

The District Court stated its findings and conclusions in detail. They thoroughly outlined the circumstances surrounding the actions contemplated under the timber contracts and the nature of the forest area involved. We need only restate the principal facts from the findings which essentially were as follows.

The timber sale contracts involved were made by the Forest Service with the appellee Champion International Corporation (Champion), on June 30, 1971, and June 30, 1972, involving respectively 7.33 and 8.41 million board feet of timber. The timber covered consists of mature and overmature lodge-pole and similar pine species. Both sales are from areas in the Teton National Forest of Wyoming. The timber would be cut from 46 clearcuts The clearcuts were found to involve about 770 acres in a gross sale area of about 7,700 acres.

The Court found that the land area included in the sales does not contain a pristine forest. Although classified by the Forest Service as a roadless area, it has been traversed for many years by jeep roads. It is also used by ranchers for the grazing of livestock and for the hunting of elk by licensed outfitters and others. The area included in the sales was found to be uninhabited except for various species of wildlife, four outfitter camps and a number of elk.

It was found that the Service made studies in the manner prescribed by the Forest Service Multiple-Use planning procedure, established pursuant to the Multiple-Use Sustained Yield Act of 1960, 16 U.S.C.A. § 528 et seq. These studies included consideration of hunting, livestock grazing, tourism, eyesores, erosion, soil stability, air quality, forest regeneration, fish habitat and other stated factors. Plans including these sales ultimately developed following the studies.

Both of the sales involved were publicly advertised for 30 days before acceptance of bids. An additional Multiple-Use Survey Report was prepared in December, 1970 and January, 1971, with respect to the first sale contract which was ultimately approved in May, 1971. Comments had been received from officials from the Wyoming Game and Fish Commission. With respect to the second sale contract, a Multiple-Use Survey Report Stage 1 was prepared and approved during February and March, 1970. A change was made from an originally planned road of some six miles to service the sales area to a second road of 2.81 miles in length outside of the “road-less area.”

In January, 1973, Environmental Impact Reviews were prepared with respect to the sales. The Forest Service concluded that in view of the lack of significant effect on the human environment and consideration given to wilderness management, environmental statements were not needed for the sales in question.

The District Court also found that Champion was dependent on Forest Service sales to operate its mills at Riv-erton and Dubois, Wyoming. It was found that by October, 1973, Champion will have processed all logs on hand and that without these two sales, the company’s two mills at those towns may have to be closed. Findings as to the substantial economic importance of Champion and the timber industry to Riverton and Dubois and to Fremont County were also made.

We must note that findings were made as to some fact questions' that were in the area of controversy. There was conflicting testimony as to the claim of adverse effect of logging on elk herds'. The Court found that harvest of the timber would have no adverse effect on the livelihood of the elk herds. It was found that additional hunting pressure resulting from roads could be adequately counteracted by closing of roads and regulation of hunting licenses so that no irreparable damage would occur to the elk. The “roadless” character of the area was also a matter of dispute. As stated, the Court found that the area did not contain a pristine forest because it was traversed by jeep roads and used for livestock grazing and for hunting. These findings as to subsidiary dispured facts are supported by substantial evidence and must be accepted as not clearly erroneous. Rule 52(a) F.R.Civ.P.

The District Court found that the administrative record introduced was adequate and supported the decision not to file an environmental impact statement and that the decision was not unreasonable in light of the facts and circumstances. The Court concluded, applying the standard of review which it determined to be proper, that the decision that no statement was required was based on consideration of relevant factors, did not result in any clear error of judgment, was not arbitrary or capricious or an abuse of discretion and was in accordance with law.

Judicial review under standards required by the National Environmental Policy Act

As stated, we must accept the findings including those made on disputed facts and supported by substantial evidence, as we have done. We are persuaded, however, that for reasons to follow, the ultimate conclusion of the District Court was not correct. The finding and conclusion that the EIS procedures did not apply are the dispositive points. The Court’s ultimate determination that the statute’s requirements had not been violated must be reviewed on appeal as essentially a legal conclusion, and not a fact finding subject to the clearly erroneous rule. See United States v. Mississippi Valley Generating Co., 364 U.S. 520, 526, 81 S.Ct. 294, 5 L.Ed.2d 268; United States v. Wholesale Oil Co., 154 F.2d 745, 747 (10th Cir.); Thomas v. Commissioner of Internal Revenue, 254 F.2d 233, 236 (5th Cir.).

We have an additional standard of review question. This is the issue of the proper standard for judicial review in determining whether the Forest Service decision in this case was correct that the procedural EIS requirements did not apply since no major federal action significantly affecting the human environment was involved. As noted earlier, the District Court held that the standard of review to be applied is whether the negative determination by the agency was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

We are persuaded, however, that the administrative decision was not one of discretion such as administrative agencies have in innumerable matters and which is referred to in the general terms of § 706(2) (A) of the Administrative Procedure Act, 5 U.S.C.A. § 706(2) (A). NEPA’s specific requirements in § 102 clearly speak in mandatory terms, and do not leave the determination to administrative discretion. National Helium Corp. v. Morton, 455 F.2d 650, 656 (10th Cir.); Calvert Cliffs’ Coordinating Committee v. Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1114; Citizens for Reid State Park v. Laird, 336 F.Supp. 783, 788 (D. Me.); cf. Parker v. United States, 448 F.2d 793, 797 (10th Cir.), cert, denied sub nom. Kaibab Industries v. Parker, 405 U.S. 989, 92 S.Ct. 1252, 31 L.Ed.2d 455. This Court recently stressed that “[t]he sweep of NEPA is extraordinarily broad, compelling consideration of any and all types of environmental impact of federal action,” National Helium Corp. v. Morton, supra, 455 F.2d at 656, quoting the Calvert Cliffs’ opinion, supra 449 F.2d at 1122.

Of course, there must be a deter-' mination whether the statute applies and some area of judgment is involved. However, we are convinced that the compass of the judgment to be made is narrow and that the determination must be reasonable in the light of the mandatory requirements and high standards set by the statute. See Save Our Ten Acres v. Kreger, 472 F.2d 463, 465 (5th Cir.); Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 424 (5th Cir.); Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 834; Scherr v. Volpe, 336 F.Supp. 886, 888 (W.D.Wis.), aff’d on other grounds, 466 F.2d 1027 (7th Cir.); Natural Resources Defense Council, Inc. v. Grant, 341 F.Supp. 356, 366-67 (E.D.N.C.); see also National Helium Corp. v. Morton, supra 458 F.2d at 656; Calvert Cliffs’, supra 449 F.2d at 1114; but see Hanly v. Kleindienst, 471 F.2d 823, 829 (2d Cir.), cert, denied, 412 U.S. 908, 93 5. Ct. 2290, 36 L.Ed.2d 974 (1973); Citizens for Reid State Park v. Laird, 336 F.Supp. 783, 788-789 (D.Me.); Goose Hollow Foothills League v. Romney, 334 F.Supp. 877, 879 (D.Or.).

We are persuaded that the general reference to discretion in § 706(2) (A) of the Administrative Procedure Act, although applicable to some other reviewable administrative decisions, see Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 28 L.Ed.2d 136, does not apply here to the agency’s determination under NEPA. Under the specific terms of NEPA we feel that the proper standard, as stated earlier, is whether the negative determination was reasonable in the light of the mandatory requirements and high standards set by the statute so as to be “in accordance with law” — another ground of review in § 706(2) (A) which may be applied consistently with the procedural demands of NEPA.

The disposition and appropriate relief

Our ease must be decided under the exacting standards of § 102. While we accept the findings that the harvest of timber would have no adverse effect on the livelihood of the elk, that the area did not contain a pristine forest, that it was traversed by numerous jeep roads, and the other evidentiary findings, nevertheless the undisputed facts remaining present a compelling case invoking the protective procedures of NEPA. As noted there will be 46 clearcut areas with removal of all timber from them, involving some 15.7 million board feet of timber. The clearcuts will cover 670 acres, dispersed through a gross sale area of 10,700 acres. The area is one traversed only by the jeep roads and is basically undeveloped. It is described in the findings as an area now “uninhabited except for various species of wildlife, four outfitter camps, and a number of elk . ” located in the setting of the Teton National Forest.

Under the high standards set by the statute, we cannot agree that the procedural protection of the statute does not apply. We are convinced that a major federal action significantly affecting the human environment is involved, within the meaning of the statute. To this effect Sierra Club v. Butz, 3 ELR 20071 (N.D.Cal.), and other cases are persuasive. In Sierra Club the Court issued a preliminary injunction, concluding that any contracts made by the Forest Service after July 1, 1972, that would change the wilderness character of any inventoried “roadless” or undeveloped area should not be made, and that no timber cutting, road building or acts that would change the wilderness character of such areas should be permitted under such contracts, until an impact statement was filed and acted on.

The defendants argue that equitable relief sought by the plaintiffs would be inappropriate in any event. They point to the finding by the District Court that the plaintiffs failed to sustain their burden of proof that they will suffer irreparable injury without relief. Without deciding whether there would be irrepa-rabie injury to any of the wildlife or permanent destruction of the forests by performance of the contracts, we feel there is an overriding public interest in preservation of the undeveloped character of the area recognized by the statute. This public interest in preserving the character of the environment is one that the plaintiffs may seek to protect by obtaining equitable relief. See National Helium Corp. v. Morton, 455 F.2d 650, 654 (10th Cir.); Scherr v. Volpe, 466 F.2d 1027, 1034 (7th Cir.) ; Parker v. United States, 309 F.Supp. 593, 601 (D.Colo.), aff’d, 448 F.2d 793 (10th Cir.), cert, denied sub nom. Kaibab Industries v. Parker, 405 U.S. 989, 92 S. Ct. 1252, 31 L.Ed.2d 455. The elearcutting of the timber planned obviously will have a significant effect on the environment for many years. Thus the threat of environmental injury without compliance with the statute’s procedures justifies equitable relief.

Moreover we cannot agree with the argument that the plaintiffs’ delay in bringing suit disqualifies them for equitable relief. The District Court made no finding or conclusion of laches or delay in bringing suit and we do not feel that relief should be denied on such grounds in any event. It is true that the planning and studies for these timber sales extended as far back as 1966. However, the final decision to go forward with the sales without impact statements was only made in January, 1973. We do not feel that the circumstances bar equitable relief for the plaintiffs, particularly in view of the public interest sought to be protected by them.

For these reasons we must disagree with the District Court. As our earlier order provided, the judgment is reversed and the cause is remanded with instructions that an order be entered requiring that impact statements be prepared in connection with the timber cutting contracts in issue and that no performance of such cutting contracts shall be permitted until the impact statements be issued in accordance with the National Environmental Policy Act.

      . The plaintiffs-appellants are two citizens’ organizations concerned with conservation and protection of natural resources and two individuals. The individuals are commercial outfitters sponsoring hunts in or near the area. The federal appellees are Government officers who administer programs in the Teton and Shoshone National Forests in Wyoming. Champion International Corporation is the company agreeing to purchase the timber under the contracts in question. No standing question is raised by the appellees.

      . Clearcutting involves the removál of all standing timber in a specified area. The method is graphically shown by exhibits of both parties.

      . The figure of approximately 770 acres was apparently an inadvertent error in the finding. The testimony by the Forest Service Supervisor was that a little less than 700 acres are involved and the exhibits show a total of 670 acres. There appears also to be an inadvertent error as to the gross sale area covered by the two contracts. The 1971 contract describes a sale area of 5,500 acres and the 1972 contract, a- sale area of 5,200 acres so that the gross sale area subject to both contracts is 10,700 acres.

      . The major procedural protections of § 102 (C) include requiring the preparation of a detailed statement covering the following points : (1) probable environmental impact of proposed action, (2) unavoidable adverse environmental effects, (3) alternatives, (4) short-term uses versus long-term productivity, and (5) irreversible and irretrievable commitment of resources. Further, consultation with other related agencies prior to preparation of the statement and circulation of the statement to the President, the Council on Environmental Quality and the public are required prior to the agency’s taking the proposed action.

      . This initial determination whether the protective procedures under § 102 apply is a narrow one, as opposed to the later determination after the agency and others are informed so as to be prepared to make a substantive decision under § 101. See Calvert Cliffs’, supra 449'F.2d at 1114.

      . These salient facts appear primarily in the administrative record. There also was supplementary proof offered by the parties without objection in the District Court. We therefore need not determine whether the evidentiary trial in that Court was within the limited scope indicated by Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106. On the facts within the administrative record, or on those facts as supplemented by evidence taken in the District Court, our conclusion is the same and we must hold that the Forest Service erred as a matter of law in determining that the impact statement procedures did not apply.

      . Appeal docketed, No. 73-1646, 9th Cir., April 11, 1973.

      . For other cases requiring the preparation of an impact statement, see National Helium Corp. v. Morton, 455 F.2d 650 (10th Cir.), (Interior Department’s cancellation of contracts to buy helium) ; Davis v. Morton, 469 F.2d 593 (10th Cir.) (administrative approval by the Bureau of Indian Affairs of a lease agreement involving a potential area of 5,-400 acres of restricted Indian lands) ; Goose Hollow Foothills League v. Romney, 334 F. Supp. 877 (D.Or.) (construction of high rise apartment building in Portland, Oregon) ; Scherr v. Volpe, 466 F.2d 1027 (7th Cir.) (converting two-lane highway to four-lane freeway for distance of 12 miles) ; but see Kis-ner v. Butz, 350 F.Supp. 310 (N.D.W.Va.), wherein the building of 4.3 miles of forest roadway near a black bear habitat area was found not to be a “major federal action.”

      . In response to this holding the Chief of the Forest Service, although maintaining that the Court’s order went beyond the requirements of NEPA, issued a directive to all Regional Foresters that impact statements were to be prepared and filed on developments planned in inventoried roadless areas after July 1, 1972. The Forest Service also says that the directive does not apply to earlier contracts such as these.


author: HILL, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Paul MASTERS, Jr., Defendant-Appellant.
    No. 73-1061.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted July 12, 1973.
    Decided Sept. 14, 1973.
    Rehearing Denied Nov. 12, 1973.

      Peter L. Garrett, Denver, Colo., for defendant-appellant.
    Bruce E. Miller, Topeka, Kan. (Robert J. Roth, U. S. Atty., Edward H. Fun-ston, Richard L. Meyer, Asst. U. S. Attys., on the brief), Topeka, Kan., for plaintiff-appellee.
    Before HILL, SETH and HOLLOWAY, Circuit Judges.
   HILL, Circuit Judge.

Following a jury trial, appellant Masters was convicted of six counts of perjury in violation of 18 U.S.C. § 1621. He was sentenced to five years imprisonment on Count I and five years imprisonment on Counts II, III, IV, V and VI, said sentences to run concurrently. Following the verdict of the jury, Masters moved for judgment of acquittal notwithstanding the verdict or for a new trial; both motions were denied. The court rendered judgment, and from that judgment Masters appeals.

It appears that in August, 1971, appellant, who was being held in the United States Penitentiary at Leavenworth, Kansas, filed a Petition for a Writ of Habeas Corpus with the United States District Court for the District of Kansas. In that petition, Masters alleged that he was “at liberty on July 8, 1971,” that he was arrested without warrant or probable cause, that he was thereafter unlawfully restrained of his liberty, that he had been imprisoned without trial and deprived of the right to confront his accusers, and that his imprisonment was not predicated upon a judgment, conviction or the imposition of sentence by a court of the United States. Masters was allowed to proceed in forma pauper-is, and the warden of the U.S. Penitentiary filed an Answer and Return setting forth lawful reasons for Masters' incarceration, i. e., that he was arrested under the authority of a mandatory release violator’s warrant.

Masters filed a Traverse stating that he was not the same John Paul Masters, Jr. named in the respondent’s Answer and Return, and that he had never been “convicted in any court.” The court below found that a factual issue had been presented, and an evidentiary hearing was ordered to determine the sole issue of the identity of Masters.

It was during this evidentiary hearing on November 9, 1971, that the alleged perjurious statements which constitute the substance of the present indictment were made. Masters appeared as a witness before the district court and, being under oath, testified in response to questions that he was “at liberty” in Fort Madison, Iowa, on January 18, 1965, Count I; that he had not been convicted in the Southern District of Iowa or sentenced to imprisonment for a maximum of five years under provisions of 18 U. S.C. § 4208(c) for study and report, Count II; that he had not been married and did not know one June Masters, Count III; that he had never had a court-appointed attorney by the name of Lawrence Oliver and did not know anyone by that name, Count IV; that he had never been in any court, either state or federal, Count V; and that he had never “served time” in the Iowa State Penitentiary, Count VI. At the subsequent trial the United States proved each of these statements to be false.

Through brief by counsel and several pro se submissions, Masters has alleged numerous reasons for reversing his conviction, many of which are completely groundless. This opinion will consider only the more legitimate claims of appellant in these arguments.

Masters’ first contention is that the indictment, as framed, constituted an undue multiplicity of charges. Though the United States strongly urges that the imposition of concurrent sentences makes a discussion of this contention unnecessary, the Supreme Court has held that the concurrent sentence doctrine is not a jurisdictional rule and concurrent sentences do not remove the elements necessary to create a justiciable case. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

Masters asserts that several of the questions involved, though each asked a different specific fact, were actually the same question in law and correctly argues that the United States cannot charge him in multiple counts by repetitiously asking the same question. However, we hold that the questions in point each involved a separate known fact about the John Paul Masters, Jr. named in the warrant, and thus each answer constituted a separate incident of perjury. The purpose of the hearing was to determine if appellant was the John Paul Masters, Jr. who was convicted in the Southern District of Iowa and sentenced on January 18, 1965, by a federal district court, and who had been released on mandatory release June 7, 1968, from the sentence resulting from that conviction. “The commission of perjury as to one matter does not absolve the witness or afford him immunity as to all other matters covered by his testimony at the same hearing. The obligation to testify truly and the penalty for false swearing is present as to every material answer given by him.”

Masters’ next contention is that the court, sitting in the habeas corpus proceeding, erred in failing to appoint counsel for that purpose. This contention ignores the rule established by this Court that no absolute right to appointment of counsel exists in habeas corpus actions as they are civil and not criminal proceedings. The court could have appointed counsel under 28 U.S.C. § 1915(d); however, that is purely a discretionary power vested in the court in an in forma pawperis proceeding. The test to apply requires petitioner to convince the court there is sufficient merit to his claim to warrant the appointment of counsel. Masters did not request counsel but nonetheless, the court considered appointment and denied it. Additionally, the fact Masters was not represented by counsel is not justification for his making positive statements under oath that were obviously known to him to be untrue. The implications of the oath were explained to him by the court, and his duty was no different than any other witness under oath.

Masters additionally contends that the court below improperly ruled that the statements of the appellant were material as a matter of law. As we stated in Travis v. United States, 123 F.2d 268 (10th Cir. 1941), the issue of materiality, in perjury prosecutions, is one of law for the court to decide. And as we stated in United States v. Whitlock, 456 F.2d 1230 (10th Cir. 1972), for testimony to be material it must be capable of influencing the tribunal on the issue before it. Masters incorrectly asserts that as the testimony did not affect the court in its decision on the issue that it was not material. This actual effect argument was refused in United States v. Allen, 131 F.Supp. 323 (E.D. Mich.1955):

. the actual effect of the false testimony is not the determining factor, but rather its capacity to affect or influence the trial judge in his judicial action on the issue before him.

The trial court’s ruling is clearly not erroneous and is affirmed.

Masters also asserts that it was error to permit witnesses to make references to other crimes of which the appellant was „ previously convicted. The rule is well settled that evidence of prior crimes is not admissible to establish guilt or to show a propensity on the part of the defendant to commit the crime with which he is charged. However, such is not the ease here. To prove appellant guilty of perjury on several of the counts in his indictment it was necessary to show that he was in court, was convicted and sentenced, had served time, and was not at liberty on July 8, 1971. Such proof inherently involves evidence of prior crimes of the defendant. Though this testimony may have prejudiced the jury to some degree, it was material, relevant and competent to show that Masters had perjured himself in the previous hearing.

Repeatedly, in pro se arguments, Masters asserts that 18 U.S.C. § 1621 is unconstitutional on several grounds and that this indictment constitutes double jeopardy as he was previously indicted for perjury by a different grand jury.

The courts have traditionally upheld the validity of laws designed to protect the interests of society in assuring the fair and effective operation- of their courts. No other function is as critical to the operation of the courts as that of fact finding, and no law is more necessary than one to punish deliberate attempts to defraud the courts through perjury. Title 18 U.S.C. § 1621 is a statute narrowly drawn to punish specific conduct that infringes a substantial government interest in protecting the judicial process. It establishes a clear and ascertainable standard of guilt and punishes only those who - are found to willfully state or subscribe any material matter which they do not believe to be true. Appellant’s contentions as to the uneonstitutionality of this statute are without merit.

Appellant's contention that the present indictment constitutes double jeopardy is also without merit. Where, as in this case, a nolle prosequi is entered to one charge, a subsequent indictment containing counts relating to a different offense does not put defendant in double jeopardy.

Lastly, Masters asserts that his statements were technically true or legally true and thus cannot support this conviction. He cites our holding in United States v. Pacheco, 451 F.2d 1000 (10th Cir. 1971), for the proposition that any statement that is true in a technical sense is not a violation of 18 U.S.C. § 1621. However, the holding in that opinion was in regard to the use of the word indictment, which has a technical legal meaning. Masters’ statements do not qualify for such a technical meaning, and the jury was not precluded from finding that at the time he made them he did not believe them to be true.

Just prior to the argument and submission of this case to the court, and on July 5, 1973, the appellant filed with the clerk a document which he captioned “Petition for Writ of Habeas Corpus”. This instrument was filed in the above numbered case and has been considered by the court in connection with that appeal; consideration has been given to the numerous points raised therein by the appellant. We are unable to find any merit in any of the contentions made therein.

Affirmed.

      . Masinia v. United States, 296 F.2d 871 (8th Cir. 1961).

      . United States v. Cason, 39 F.Supp. 731 (W.D.La.1941).

      . Lee v. Crouse, 284 F.Supp. 541 (Kan. 1967), aff’d 396 F.2d 952 (10th Cir. 1968) ; Ratley v. Crouse, 365 F.2d 320 (10th Cir. 1966) ; Plaskett v. Page, 439 F.2d 770 (10th Cir. 1971).

      . Garrison v. Lacey, 362 F.2d 798 (10th Cir. 1966), cert, denied, 387 U.S. 911, 87 S.Ct. 1696, 18 L.Ed.2d 630 (1967).

      . Jackson v. Turner, 442 F.2d 1303 (10th Cir. 1971).

      . United States v. Hendrickson, 200 F.2d 137 (7th Cir. 1957), cert, denied, 345 U.S. 926, 73 S.Ct. 785, 97 L.Ed. 1357.

      . Maestas v. United States, 341 F.2d 493 (10th Cir. 1965).


author: VAN DUSEN, Circuit Judge. BIGGS, Circuit Judge

text:
    Caesar MILES, Administrator of the Estate of Michael E. Miles, Deceased, Appellant, v. William F. RYAN Jr., Frank Wells a/k/a Frank Kings Coach Inn Restaurant Co. also known as the Coach Inn.
    No. 72-1401.
    United States Court of Appeals, Third Circuit.
    Argued June 11, 1973.
    Decided Sept. 4, 1973.

      Stephen M. Feldman, Feldman & Feld-man, and Rubin Mogul Ardmore, Philadelphia, Pa., for appellant.
    Daniel J. Ryan, John J. Walsh, Jr., Joseph G. Manta, and LaBrum & Doak, Philadelphia, Pa., for appellees.
    Before BIGGS, VAN DUSEN and GIBBONS, Circuit Judges.
   VAN DUSEN, Circuit Judge.

Plaintiff 2appeals from a district court judgment for defendant Ryan entered on the jury’s verdict finding the plaintiff was contributorily negligent in a diversity, survival and wrongful death action. Plaintiff contends that the jury’s verdict was against the weight of the evidence, that the district court erred when it excluded evidence of drinking on the part of one of the defendants prior to the accident, and because the district court committed numerous errors in its charge.

The accident causing the decedent’s death occurred on December 17, 1965, on the Pennsylvania Turnpike, west of the Valley Forge service area. Decedent and two passengers were returning home to South Bend, Indiana, at the end of a vacation (N.T. 40). Just prior to the accident, decedent had had difficulty with his vehicle and had pulled into a service area for repairs. In the service area decedent was warned by a State Trooper, Officer Bigus, that the left rear light on the vehicle was not functioning and that he should have the light repaired before continuing on the Turnpike (N.T. 44, 216-18). After fixing the faulty light, the decedent drove a short distance on the highway when the car started to malfunction. The decedent and the occupants decided to attempt to back the car back to the service area (N.T. 46). Shortly thereafter the decedent’s car was struck in the rear by the car driven by defendant Ryan.

Both parties agree that if decedent’s vehicle was on the travelled portion of the Turnpike at the time of the accident, such evidence would sustain a finding of contributory negligence. However, there was sharp disagreement as to the position of the vehicle at the time of the impact. One of decedent’s passengers claimed that the decedent’s car was off the travelled portion of the highway (N.T. 51), but admitted that this was in contradiction to a statement he made to Officer Bigus immediately after the accident (N.T. 59-60, 64). Another witness for the plaintiff, who came to the scene after the accident, also testified that the car was off the highway (N.T. 79, 80). Defendants Wells and Ryan both stated the vehicle was partially on the highway (N.T. 159, 184-185). The defendants’ testimony was corroborated by Officer Bigus, who gave his expert opinion that the point of impact was on the travelled portion of the highway (N.T. 227, 228).

It is not for this court to resolve the seeming inconsistencies in the testimony, but rather for the jury, since it is their function to weigh the testimony and the inferences to be drawn from the evidence. See, e.g., Continental Air Lines, Inc. v. Wagner-Morehouse, Inc., 401 F.2d 23 (7th Cir. 1968); Gebhardt v. Wilson Freight Forwarding Co., 348 F.2d 129 (3d Cir. 1965). A motion for a new trial, based on the ground that the verdict was against the weight of the evidence, is “addressed to the sound discretion of the trial judge and its denial is not ordinarily reviewable on appeal.” Pritchard v. Liggett & Myers Tobacco Co., 350 F.2d 479, 482 (3d Cir. 1965); Sokol v. Gussack, 367 F.2d 576 (3d Cir. 1966) (per curiam). After a careful review of the record, we do not believe the district court abused its discretion when it stated:

“It is this court’s view that there is ample testimony on the record, if believed, to support the jury’s finding of contributory negligence.”

338 F.Supp. at 1066.

The plaintiff next contends that the district court erred when it excluded evidence that Wells had been drinking at some undisclosed time prior to the accident. Plaintiff’s counsel, in chambers, offered the following:

“Mr. Wells told Officer Bigus that he had five to seven ‘V-O’s’ and water to drink within a two-hour period . when he asked if he had anything to drink.
“There will be testimony that he had five to seven shots of whiskey.
“I offer the testimony of Officer Bigus about the five to seven ‘V-O’s’ and water within a two-hour period.” (N.T. 140, 143, 146)

We note that this offer of proof was made with the intention to impeach the credibility of defendant Wells, whom plaintiff’s counsel planned to call even before he had had a chance to see if he could prove his joint venture theory through the testimony of the next witness, Ryan, and before he knew whether defense counsel would call Wells.

This offer was never renewed after Ryan had completed his testimony. Specifically, it was not renewed before, during, or after the testimony of Wells.

It is the rule in Pennsylvania that “[i]ntoxication on the part of a witness at the time of an occurrence about which the witness has testified is a proper matter for the consideration of a jury affecting his credibility.” Commonwealth v. Rouchie, 135 Pa.Super. 594, 7 A.2d 102, 107 (1939); Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956); Commonwealth v. Godfrey, 177 Pa.Super. 640, 112 A.2d 434 (1955). However, the Commonwealth courts caution that “while proof of intoxication is relevant where recklessness or careless driving of an automobile is the matter at issue, the mere fact of drinking intoxicating liquor is not admissible, being unfairly prejudicial, unless it reasonably establishes a degree of intoxication which proves unfitness to drive.” Fisher v. Dye, supra at 476 of 125 A.2d; Morreale v. Prince, 436 Pa. 51, 258 A.2d 508 (1969); see also Kriner v. McDonald, 223 Pa.Super. 531, 302 A.2d 392 (1973); Sentz v. Dixon, 224 Pa.Super. 70, 302 A.2d 434 (1973). A similar standard of proof (drinking intoxicating liquors reasonably establishing a degree of intoxication proving inability to accurately observe and remember events in the testimony) is required when the issue is the credibility of a witness. Commonwealth v. Godfrey, supra at 436 of 112 A.2d.

In an earlier suit we recognized the rule followed in Pennsylvania when we stated in Gensemar v. Williams, 419 F.2d 1361,1363 (3d Cir. 1970):

“Actually, the Pennsylvania courts hold that the mere fact of drinking intoxicating liquors is inadmissible unless it reasonably establishes a degree of intoxication which proves unfitness to drive, Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956). Such evidence is considered so prejudicial that the Pennsylvania Supreme Court has stated that a ‘wise’ procedure in a case where evidence of drinking is offered is for the court first to hear all the testimony out of hearing of the jury in order to determine whether it is sufficient to meet the above-mentioned standard. See Vignoli v. Standard Motor Freight, Inc., 418 Pa. 214, 210 A.2d 271 (1965), wherein the Supreme Court of Pennsylvania noted, ‘The trial court wisely heard the testimony relative to Crise’s alleged intoxication out of the jury’s hearing. In circumstances where the jury could not reasonably reach a finding of intoxication, it is highly prejudicial to permit it to hear evidence bearing on the subject’ (see 210 A.2d at 273).”

The district court properly considered, out of the hearing of the jury, whether the offered evidence reasonably established a degree of intoxication, which affected the capacity of Wells to observe and remember. We cannot find on this record that its finding that plaintiff failed to lay the proper “foundation showing an actual state of intoxication in accordance with the salutory rule of Fisher” (338 F.Supp. at 1067) is reversible error.

In reaching this conclusion, the court may have been influenced by the deposition of Frank Wells, filed in the district court on April 23, 1971. In that deposition, Wells reported that he only had three “V.O.’s” and water, and that he had been able to verify the quantity specifically because after the accident “when I went ... to pay the tab . . it was my tab night. And I know exactly what was on it. And I talked to the guy, and he showed me exactly what we had” (Doc. 32 at 20-21). He further stated that the statement given to Officer Bigus was made in the hospital, while in a great deal of pain, and in an effort to have the Trooper leave him alone (Doc. 32 at 29-31).

At the point in the trial when plaintiff sought to introduce his evidence, the probative value of an admission by Wells that he had been drinking, without the proper foundation that the quantity he had consumed demonstrated an ineapacity on his part to observe and remember details at the time of the accident, would have been far outweighed by the unfair prejudice that would have resulted, since the jury might have imputed the drinking by Wells, to the driver, Ryan. See Harvey v. Doliner, 399 Pa. 356, 160 A.2d 562, 565 (1960), where the Pennsylvania Supreme Court recognized the danger of allowing “the trial to drift on a tide of alcoholic debate far away from the principal issue as to who was responsible for the accident in which the plaintiffs were allegedly injured.” It is well recognized that evidence may not be admitted where its prejudicial effect outweighs its probative value. See McCormick, Law of Evidence, § 185 (2d ed. 1972); 1 Wigmore, Evidence, § 29 (3d ed. 1940). The prejudicial effect of testimony concerning drinking by Wells on the day of the accident that would suggest to the jury that Ryan had also been drinking would be contrary to these recognized authorities.

“ . . . [A]s stated by the learned court below, ‘Whether one may have partaken of some liquor is not a test of one’s credibility and is the type of question, whether answered in the affirmative or negative that may create in the minds of some jurors a most unfavorable inference.’ ”

Furthermore, even if the trial court was incorrect in its determination that plaintiff’s offer of proof failed to demonstrate intoxication, we believe that its exclusion was not reversible error, since the court’s refusal to admit the offered evidence did not affect the substantial rights of the parties. See F.R.Civ.P. 61. The record makes clear that the statements of Wells were merely supportive of the testimony given by Ryan and Officer Bigus.

Plaintiff also alleges that the trial court erred in several points of its charge to the jury. After examining the record and the charge as a whole, it is our opinion that it fairly and adequately submitted the issues in the case to the jury. See Ely v. Reading Co., 424 F.2d 758, 760-761 (3d Cir. 1970).

Therefore, the judgment of the district court will be affirmed.

BIGGS, Circuit Judge

(dissenting).

Although I agree with the majority’s statement of the relevant Pennsylvania law as to the admissibility of evidence of intoxication, I cannot agree with their application of that law to the facts of this case. The plaintiff laid a sufficient foundation to warrant the admission of evidence concerning Wells’ drinking which would have served to impeach Wells’ credibility. The evidence was not only admissible under Pennsylvania law and the Federal rule permitting impeachment of one’s own witness when that witness is an adverse party, but its exclusion constituted reversible error because Wells’ credibility was a crucial issue in the case. In view of the provisions of Rule 43, the majority opinion in supporting the refusal of the district court to receive this evidence apparently relies primarily on what appears to be an arbitrary requirement as to order of proof for I believe my Brethren would concede that the question would have been a proper one on cross-examination. In my view, the plaintiff’s attorney made a sufficient, though inartistic, record of the excluded evidence in accordance with Rule 43(c), F.R.Civ.Proc., 28 U.S.C. Since the learned trial Judge took a most negative position in his statements excluding this evidence, the plaintiff was not required to pursue the matter further. In view of Rule 43(b), the majority opinion seems dedicated to an overfine adherence to the order of proof.

Pennsylvania courts have consistently held that intoxication on the part of a witness at the time of an occurrence about which he has testified is a proper matter for the jury’s consideration as affecting his credibility. Commonwealth v. Rouchie, 135 Pa.Super. 594, 7 A.2d 102 (1939); Commonwealth v. Godfrey, 177 Pa.Super. 640, 112 A.2d 434 (1955). The prejudicial nature of evidence bearing on intoxication has been recognized, however, in circumstances where the jury could not reasonably reach a finding of intoxication. See Gensemer v. Williams, 419 F.2d 1361 (3 Cir. 1970). For example, where the issue is whether a driver operated his automobile in a negligent manner, Pennsylvania courts rule evidence of intoxication inadmissible unless it reasonably establishes a degree of intoxication which proves unfitness to drive. Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956).

The statement of law set out in note 6 of the majority opinion is indubitably correct but what follows herein must be added. The same standard of proof must be required when the issue is the credibility of a witness, i. e., the drinking of intoxicating liquors must reasonably establish a degree of intoxication which proves inability to accurately observe and remember events, for “[w]hether one may have partaken of some liquor is not a test of one’s credibility and is the type of question . that may create in the minds of some jurors a most unfavorable inference.” Commonwealth v. Godfrey, supra at 644, of 177 Pa.Super., at 436 of 112 A.2d.

In the case at bar, plaintiff’s counsel offered to prove that “Mr. Wells told Officer Bigus [the police officer who investigated the accident] that he had five to seven ‘V.O.’s’ and water to drink within a two-hour period when he asked if he had anything to drink. . . .” (Emphasis added.) Plaintiff’s counsel went on to say, “. . . That’s under oath by the police officer.” He then stated,

“I offer the testimony of Officer Bigus about the five to seven ‘V-O’s’ and water within a two-hour period.”

As stated in the majority opinion, the trial court did not believe that the plaintiff had established a sufficient foundation showing an actual state of intoxication. The district court reasoned, “. . . You are just going to say he had drinks. Therefore, his observations are bad. I would think that you would have to give some observations made by somebody of his condition other than the fact that he had six drinks.”

I cannot agree with the district court’s statement. As this court said in Parker v. Reading Company, 363 F.2d 608, 610 (3 Cir. 1966), “. . . [T]he district court seems to have been persuaded that under Pennsylvania law eyewitness testimony of conduct and condition at the time in question is the only way in which intoxication may be proved in a civil case. We have examined the cases but have not been able to discover or infer such a rule.” The more recent Pennsylvania cases are not to the contrary. I believe that evidence of excessive alcohol consumption may be in itself sufficient to prove the requisite degree of intoxication. See Cook v. Phi-la. Transportation Co., 414 Pa. 154, 199 A.2d 446 (1964). While the consumption of “two 7 ounce beers” within the preceding two-hour period would not be sufficient proof, Gensemer v. Williams, supra, eventually the point is reached at which the large number of drinks consumed leads to the logical conclusion that the person was intoxicated.

The statement appears in some of the Pennsylvania decisions that “drinking of intoxicating liquors, in itself, does not prove unfitness to drive.” See e. g., Balla v. Sladek, supra, 381 Pa. at 93, 112 A.2d at 160. But it is clear from the cases that this statement can only be taken to mean that mere evidence that the person had something to drink is not sufficient, for the concern is that “[t]he word ‘drinking,’ where alcohol is involved, carries the inevitable connotation of considerable drinking. Certainly, no one familiar with the idioms of current language would say of a person, who had consumed a single glass of beer, that he had been ‘drinking.’ And yet, in technical correctness, the swallowing of the smallest quantity of a beverage would be ‘drinking’. If a witness were asked: ‘Did you do any drinking?’ he would be required to answer ‘Yes’, even though the extent of his tippling did not go beyond a glass of the mildest ale. Thus it is that the rules of evidence, in the interests of fairness, require a cross-examiner to approach the question of intoxicating liquor with circumspection and maximum appreciation of the misconceptions which can so easily be created on the subject.” Wentworth v. Doliner, 399 Pa. 356, 360-361, 160 A.2d 562, 565 (1960) (Emphasis in original).

Thus the question here becomes whether five to seven drinks of whiskey within a two-hour period one-half hour prior to the collision is a sufficiently large enough number of drinks to reasonably establish Well’s inability to accurately observe and remember the circumstances surrounding the collision. I believe that it is, and the jury should have been allowed to consider the evidence in judging Wells’ credibility.

Although Wells’ testimony would have been supportive of that of defendant Ryan’s as to how the accident occurred, I cannot deem the evidence of Wells’ drinking such a large amount of alcohol in such a short length of time not to be highly relevant in respect to the credibility of his testimony. Wells’ evidence went not only to the support given Ryan’s testimony but was also very relevant on the issue of contributory negligence. And credibility indeed was a most important factor, as the outcome hinged on which witnesses the jury believed concerning the location of the vehicle. It is difficult to conceive how the plaintiff’s case was not seriously prejudiced by the failure to receive this evidence of Wells’ heavy drinking. Under the circumstances, the amount of liquor Wells had drunk seems to me to be proper impeachment evidence.

For the reasons stated, I must respectfully dissent.

      . The plaintiff, Caesar Miles, is the administrator of the estate of the deceased, Michael E. Miles.

      . The jurisdiction of the district court was based on 28 U.S.C. § 1332. Defendants were citizens of Pennsylvania and plaintiff a citizen of Indiana. The complaint alleged that the amount in controversy exceeded $10,000. After the entry of judgment, a March 15, 1972, district court order, supported by an opinion, denied plaintiff’s motion for new trial.

      . The plaintiff alleged defendant Frank Wells, a passenger in defendant Ryan’s automobile, was on a joint enterprise with Ryan at the time of the accident. The jury found to the contrary. That issue has not been raised on appeal.

      . See district court opinion referred to in note 2 above, which is reported in 338 F.Supp. 1065 (E.D.Pa.1972).

      . The defendant Ryan was subject to a subpoena to testify as a witness in a criminal case in Delaware on the morning of the second day of the trial (N.T. 3 — 4). Arrangements were made to have him testify out of turn for the defense on the morning of that day in this case in Philadelphia, so that he could meet his other commitment as early as possible on that day. At the end of the first day of the trial, the judge advised the jury in open court as follows :
      “We will recess now until tomorrow morning, and at the request and agreement of both counsel we would like to get started at 9:35 A.M. because of a conflict in time with one of the witnesses, and we will take that witness first; is that correct?
      “Mr. Feldman: That’s correct.
      “The Court: I hope it doesn’t inconvenience too much, so if you will be here at 9:30 A.M., we will start early and accommodate you.”

      . Neither the odor of alcohol on a party’s breath, see Critzer v. Donovan, 289 Pa. 381, 137 A. 655 (1927), nor the fact that a person had been drinking intoxicating liquor, see Balia v. Sladek, 381 Pa. 85, 112 A.2d 156 (1955), nor testimony that a person had a blood alcohol content which would “affect” his driving, see Billow v. Farmers Trust Company, 438 Pa. 514, 266 A.2d 92 (1970), is sufficient, standing alone, to establish unfitness to drive. The rationale for the exclusion of such evidence has been stated as follows:
      “Certainly if the driver was not intoxicated or- driving under the influence of liquor, the fact that he may have taken a drink has no bearing on the question of his negligence. Such testimony tends to raise in the minds of the jurors another issue— whether he was intoxicated — which, in the absence of other evidence, should not have entered into the determination of the case. Moreover, this question was of such a nature as to create an unfair prejudice against the driver and the owner.” Critzer v. Donovan, supra at 385 of 289 Pa., at 666 of 137 A.

      . See Commonwealth v. Godfrey, supra at 436:

      . Other contentions of the plaintiff have been considered by this court and rejected.

      . F.R.Civ.P. 43(a), 28 U.S.C., provides as follows:
      “Form and Admissibility. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules. All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made. The competency of a witness to testify shall be determined in like manner.”

      . F.R.Civ.P. 43(b) 28 U.S.C., provides as follows :
      “Scope of Examination and Cross-Examination. A party may interrogate any unwilling or hostile witness by leading questions. A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of his examination in chief.”

      . See Transcript 140, 142, 143, 146.

      . The evidence offered by plaintiff’s counsel to the effect that Wells had five to seven drinks is the only evidence which we can consider. AVells had stated in his deposition taken prior to trial that he had three drinks (shots of V.O.), but since the deposition was not offered in evidence at trial or in chambers, it was not evidence in this case and cannot be considered by a reviewing court. Worsham v. Duke, 220 F.2d 506 (6 Cir. 1955) ; Charles v. Judge and Dolph, Ltd., 263 F.2d 864 (7 Cir. 1959) ; United States v. City of Brookhaven, 134 F.2d 442 (5 Cir. 1943). Moreover, there is nothing in the record to support the majority’s speculation that the district court judge may have considered Wells’ deposition in determining if the plaintiff’s attorney had laid a sufficient foundation on intoxication. The majority is reaching in nubibus for a reason to uphold the district court’s exercise of discretion. Their use of Wells’ deposition is speculation and cannot hide the fact that the evidence offered by the plaintiff should have been admitted even under the stringent requirements of Pennsylvania law.