author: GOLDBERG, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Roberto GOMEZ-ROJAS, and Michael Rece Sutherlin, Defendants-Appellants.
    No. 74-1914.
    United States Court of Appeals, Fifth Circuit.
    Feb. 10, 1975.
    Rehearing Denied March 26, 1975.

      Clarence D. Moyers, Gus Rallis, El Paso, Tex., for Sutherlin and Rojas.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ronald F. Ederer, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and GODBOLD, Circuit Judges.
   GOLDBERG, Circuit Judge:

Appellants Sutherlin and Gomez-Rojas were each convicted by a jury on March 13, 1974, of conspiracy to possess 300 pounds of marihuana with intent to distribute that substance, and of knowingly and intentionally possessing that same marihuana with intent to distribute it, in violation of 21 U.S.C. §§ 846 and 841(a)(1). Although the trial court originally sentenced each appellant to two consecutive five-year terms in prison, with five years special parole, the sentences were later modified to require Sutherlin and Gomez-Rojas to serve the two five-year terms concurrently, with five more years of special parole. Suth-' erlin and Gomez-Rojas complain of various errors in their joint trial. After a careful study of the record, we conclude that Sutherlin’s conviction must be reversed, but that the jury’s verdict must stand as to Gomez-Rojas.

On the morning of November 12, 1973, Special Agent DeHoyos of the Drug Enforcement Administration received a telephone call from a confidential informant, advising DeHoyos that certain individuals at an El Paso, Texas, bar desired to sell a quantity of marihuana for $22,500. At DeHoyos’ request, one . George Smith arranged a meeting on the afternoon of the 12th at a local motel room between DeHoyos, who was posing as a prospective buyer, and Sutherlin, the purported purveyor of contraband. When DeHoyos balked at the price Suth-erlin demanded for the marihuana, Suth-erlin rejoined that he had no control over the price: “I just set up deals for my man and he takes care of the prices and delivers it.” At this point, DeHoyos and Sutherlin adjourned to Smith’s automobile, where DeHoyos showed Suther-lin the color of his money; the pair then walked over to Sutherlin’s truck, from which Sutherlin removed a kilo of marihuana which he claimed was identical in quality to that which he was offering for sale. Sutherlin and the federal agent then proceeded to a public phone, where Sutherlin made a call to an unknown party, hung up quickly, as “his man could not talk then” and would call back, and shortly thereafter answered a call from an unknown party at the same phone. Sutherlin then advised DeHoyos that the deal could go through, but that there were certain procedural difficulties to be resolved first. At that point Suth-erlin left, after arranging to meet De-Hoyos later that evening at a neighborhood restaurant.

When the appointed time came, Suth-erlin and DeHoyos shared coffee and idle conversation until they noticed Gomez-Rojas drive into the restaurant parking lot. Sutherlin remarked, “that is my man,” went out to talk to Gomez-Rojas for several minutes and returned to tell DeHoyos to have George Smith rent a car for the purpose of transporting the marihuana. When Smith arrived with the rental car, Sutherlin told DeHoyos that his supplier would take the car to a warehouse, load it with the marihuana and deliver the vehicle to a prearranged location. Gomez-Rojas, who had left in the interim, returned to the restaurant parking lot and had another private conversation with Sutherlin. Acting on instructions from Sutherlin, DeHoyos drove the rental car to a parking lot adjacent to the Rudolph Chevrolet dealership; Sutherlin then dropped off De-Hoyos and Smith at a motel to await developments.

Soon thereafter, Gomez-Rojas drove into the lot where DeHoyos’ rental car was parked, left his automobile and drove the rental car next door to Rudolph Chevrolet, where another, unidentified individual in a Cadillac traded vehicles with Gomez-Rojas and drove the rented car to an undiscovered location, evading a number of federal agents along the way. Sutherlin and DeHoyos met again an hour later and drove in separate vehicles to the parking lot of a motel, where the rental car was discovered, its trunk loaded with 300 pounds of marihuana. Sutherlin was arrested on the spot and Gomez-Rojas was arrested while in his parked car 100 feet away in the same parking lot.

At trial, Sutherlin took the stand and admitted most of the comings and goings related above; he contended, however, that George Smith was the villain of the piece and that he, Sutherlin, was entrapped. Smith, according to Sutherlin, was a friend who took advantage of Sutherlin’s unhappy financial situation to induce an otherwise innocent citizen to aid him in an illicit business transaction with DeHoyos, whom Smith represented as a marihuana dealer from Albuquerque. Sutherlin alleged that Smith is a paid informer and a Government agent, and that Smith was the source of the marihuana which was found in the trunk of the rental car, so that we are faced with the sordid spectacle of the Government selling marihuana to itself. Sutherlin also claimed that Gomez-Rojas was an innocent bystander who happened to appear in the wrong place at the wrong time. Gomez-Rojas, who works as a salesman at Rudolph Chevrolet, agreed with Sutherlin’s account and, unlike Sutherlin, denied any knowledge of the marihuana transaction.

I. Sutherlin

A.

Sutherlin’s sole defense was entrapment, and his intention to demonstrate the truth of this theory at trial was well-known to the district judge before the trial began. In order to establish his defense, Sutherlin subpoenaed George Smith to testify as his witness on the subject of entrapment. On the day the trial began, however, Smith apprised the trial judge, out of the presence of the jury and before any testimony was heard, of his intention to assert his Fifth Amendment right against self-incrimination if called as a witness. In spite of Sutherlin’s protests, the district court excused Smith without the slightest inquiry into the legitimacy or the scope of his proposed refusal to testify. Furthermore, the court forbade Sutherlin to place Smith on the stand for the purpose of eliciting, a recitation of his name, his address and the Fifth Amendment to the United States Constitution. Thus, at a stroke, Sutherlin was denied the opportunity to examine the individual who, save himself, could testify most thoroughly about the alleged entrapment. Sutherlin argues that this was error. Sutherlin’s complaint involves a complex interplay between the law of entrapment, the informer’s privilege and Smith’s Fifth Amendment right against self-incrimination. We will discuss each factor of the triad in turn.

The United States Supreme Court first recognized and applied the entrapment defense in Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. In Sorrells, Chief Justice Hughes ruled for the Court that as a matter of statutory construction, the entrapment defense prohibits Government officials from instigating a criminal act by persons “otherwise innocent in order to lure them to its commission and to punish them,” 287 U.S. at 448, 53 S.Ct. at 215, 77 L.Ed. at 413, reasoning that Congress passes criminal statutes to deter crime rather than to encourage it. In 1958, in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, and again in 1973, in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366, the Court reaffirmed the principle set out in Sorrells: that “[entrapment occurs only when the criminal conduct was ‘the product of the creative activity’ of law-enforcement officials.” Sherman v. United States, supra, 356 U.S. at 372, 78 S.Ct. at 821, 2 L.Ed.2d at 851. Thus, the entrapment defense turns on the intent or predisposition of the defendant to commit the crime. In 1971, in United States v. Bue-no, 5 Cir. 1971, 447 F.2d 903, this Court ruled that the Sorrells notion of entrapment must apply as a matter of law where a defendant is charged with dealing in contraband where the contraband in question was supplied to and purchased from the defendant by Government officers or paid informers. If the supplier is a paid informer, the defense is available even if the informer entrapped the defendant on his own initiative, and regardless of whether any Government officer knows the source of the contraband. United States v. Bueno, supra. See United States v. Mosley, 5 Cir. 1974, 496 F.2d 1012 and United States v. Oquendo, 5 Cir. 1974, 490 F.2d 161.

Once the defendant presents a prima facie case of entrapment indicating that Government conduct created “a substantial risk that the offense would be committed by a person other than one ready to commit it,” Pierce v. United States, 5 Cir. 1969, 414 F.2d 163, 168, the burden shifts to the Government to prove beyond a reasonable doubt that the accused was predisposed to commit the crime charged against him. United States v. Mosley, supra. Correspondingly, if the defendant establishes a prima facie case of a transaction of the Bueno variety, then the Government must prove beyond a reasonable doubt that the objective facts necessary to a Bueno defense did not occur. Once the Government comes forward with evidence that the defendant was not entrapped, then the case may go to the jury. United States v. Oquendo, supra.

In an ordinary entrapment case, the Government will seek to demonstrate the defendant’s predisposition by pointing to the defendant’s conduct and to his reputation for dealing in contraband. See United States v. Russell, supra. In a Bueno-type ease, however, the Government’s task is more difficult. It may not rely solely on the jury’s decision to believe or not to believe the defendant’s story. United States v. Bueno, supra, 447 F.2d at 906. Since in many cases of this type, of which Bueno itself was one, the only witnesses to the alleged entrapment are the defendant and the Government agent or informer, the Government must call the alleged supplier, its officer or its informer, as a witness. If the purported supplier is unavailable, however, as in our recent case of United States v. Soto, 5 Cir. 1974, 504 F.2d 557, where the informer had died in the interim, the Government may defeat the defense of entrapment by otherwise demonstrating that the contraband came from a non-Government-related source.

From this discussion of the law of entrapment, it is readily apparent that many such cases involve informers. This circumstance creates additional legal difficulties, for such individuals are not readily available as witnesses. The Supreme Court set out the law of informer’s privilege in Roviaro v. United States, 1957, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639:

What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. . . . The purpose of the privilege is the further-anee and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.
The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged. Likewise, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.
A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.
We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration ■ the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors. 353 U.S. at 59-62, 77 S.Ct. at 627, 1 L.Ed.2d at 644-646.

Where a defendant charges that a paid Government informer has entrapped him, Roviaro ordinarily demands disclosure of the informer’s identity, since the defendant’s entire defense rests upon allegations which the informer is in a unique position to affirm or deny. See United States v. Bueno, supra, and United States v. Oquendo, supra; see also Branzburg v. Hayes, 1972, 408 U.S. 665, 698, 92 S.Ct. 2646, 33 L.Ed.2d 626, 649. This requirement involves a legal fiction, in that a defendant who claims entrapment cannot . help but admit that he knows the identity of the informer. The exclusionary scope of the informer’s privilege, however, is so broad as to cripple the defendant’s defense unless the defendant goes through the motions of requiring disclosure, so that he may call the informer as a witness, compel the Government to call him or ask other witnesses questions about the informer. In this case, Sutherlin knows very well who the alleged informer Smith is, and he knew before the trial where Smith could be reached by process, for Smith was served with a subpoena to appear as Sutherlin’s witness. It was then that Smith, apparently on his own motion, informed the trial judge that he would refuse to testify if called, and the district court accepted his claim of Fifth Amendment privilege without more and excused him from testifying.

The Fifth Amendment to the United States Constitution declares in part that “No person . . . shall be compelled in any criminal case to be a witness against himself.” In Hoffman v. United States, 1951, 341 U.S. 479, 486-487, 71 S.Ct. 814, 818, 95 L.Ed. 1118, 1124, the Supreme Court enunciated the standard for measuring when a witness may properly claim his right, against self-incrimination, and thus refuse to respond to questioning:

To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it was asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.

The Hoffman Court also indicated, however, that a simple blanket declaration by the witness that he cannot testify for fear of self-incrimination will not suffice to invoke the privilege, see United States v. Malnik, 5 Cir. 1974, 489 F.2d 682; the mechanism of the Fifth Amendment is not automatic or self-winding. Accordingly, the custom is for the trial judge to examine the protesting witness out of the presence of the jury in order to determine the validity of his claim. Once the court satisfies itself that the claim is well-grounded as to the testimony desired, it may, in its discretion, decline to permit either party to place the witness on the stand for the purpose of eliciting a claim of privilege or to comment on this circumstance. United States v. Lacouture, 5 Cir. 1974, 495 F.2d 1237, cert. denied, - U.S. -, 95 S.Ct. 631, 42 L.Ed.2d 648.

In this case, the Government cannot be penalized, either under the Compulsory Process Clause of the Sixth Amendment or the law of entrapment, because Smith chose to exercise his Fifth Amendment rights, thus making himself as unavailable for purposes of testimony as the deceased informant in United States v. Soto, supra. See United States v. Tatum, 5 Cir. 1974, 496 F.2d 1282. That is not to say, however, that Smith’s claim of privilege was well-founded.

In United States v. Lacouture, supra, the district court held an extensive hearing out of the presence of the jury in order to establish the fact that the witness could legitimately refuse to answer essentially all relevant questions that could be put to her. Here, on the other hand, we have only Smith’s bald assurance that he has a proper Fifth Amendment right to refuse to answer any relevant question that Sutherlin. could ask of him. In such a situation, especially considering the critical nature of his testimony, we conclude that the district court erred in excusing him as a witness. On remand, the trial court must hold a hearing to determine whether Smith’s fear of self-incrimination is well-founded and what the parameters of his. Fifth Amendment rights are in the context of the testimony that Sutherlin wishes to obtain from him. If the court finds that Smith cannot properly invoke the Fifth Amendment with respect to any relevant and material questions which Sutherlin purposes to ask him, then Smith must testify at the new trial. If, on the other hand, the court finds that Smith may legitimately refuse to answer essentially all possible relevant questions, then the district court must decide in its informed discretion whether, in light of Sutherlin’s entrapment defense, Sutherlin should be allowed to elicit Smith’s refusal to testify before the jury or to comment on that refusal.

B.

Sutherlin also objected at trial and argues now that the trial court improperly instructed the jury when it charged that an entrapment defense was made out only if the Government furnished the marihuana to Sutherlin, either directly or through Smith:

In order for there to be entrapment . you would have to find that the Government had delivered or turned over or made available the marihuana that was going to be delivered, that Mr. Sutherlin was going to sell to the agent. . . . Now if you find from the evidence that the Government entrapped Mr. Sutherlin, that they furnished the means, the marihuana, turned it over to the man Smith, or whoever it is to use to entrap Mr. Sutherlin, then [you would have to decide whether the Government proved beyond a reasonable doubt that Sutherlin was not entrapped].

Our previous discussion of the law of entrapment demonstrates that this instruction was indeed erroneous, because entrapment would arise here if Smith had supplied the marihuana to Sutherlin from his own resources and without the actual knowledge of De-Hoyos or any other Government officer. The law does not require that a man be badged in order to be capable of entrapping an innocent citizen. Given the critical relationship of the instruction to Sutherlin’s sole defense, and finding no other part of the instructions which remedies that defect, we conclude that Suth-erlin must have a new trial. In view of our disposition of Sutherlin’s appeal, we pretermit discussion of his other claims of error.

II. Gomez-Rojas

Gomez-Rojas does not claim that he was entrapped, but rather argues that he is innocent of any wrongdoing, and that the evidence introduced against him fell far short of that necessary to support the jury’s verdict against him. In reviewing the sufficiency of the evidence supporting a criminal conviction, we must sustain the jury verdict if, taking the view most favorable to the Government, there is substantial evidence to support it. Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Velasquez, 5 Cir. 1974, 496 F.2d 1009. Although the test for sufficiency is the same whether the evidence is direct or circumstantial, United States v. Moore, 5 Cir. 1974, 505 F.2d 620; United States v. Velasquez, supra; United States v. Warner, 5 Cir. 1971, 441 F.2d 821, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58, we must determine not only that the inferences to be drawn from the circumstantial evidence against Gomez-Rojas are consistent with guilt but that a jury could conclude that those inferences are inconsistent with every reasonable hypothesis of innocence. United States v. Fairchild, 5 Cir. 1975, 505 F.2d 1378; United States v. Ferg, 5 Cir. 1974, 504 F.2d 914; see United States v. Squella-Avendano, 5 Cir. 1973, 478 F.2d 433.

The jury here heard evidence that Sutherlin told DeHoyos at their first meeting that he, Sutherlin, was only a middleman in this transaction, that “my man . . . takes care of the prices and delivers [the marihuana].” DeHoyos testified that while he and Sutherlin were seated in the restaurant, Gomez-Rojas drove into the restaurant parking lot, at which time Sutherlin stated “that is my man” and went out to talk to Gomez-Rojas. After this conversation, Sutherlin instructed DeHoyos to rent a car for the purpose of transporting the marihuana which was the object of their negotiations. There was also testimony that immediately after Smith brought the newly-rented automobile into the restaurant parking lot, Gomez-Rojas returned and had another private conversation with Sutherlin. Federal agents testified that after DeHoyos had driven the rental car to a parking lot next to Rudolph Chevrolet, Gomez-Rojas drove into the same lot, parked his car next to the rental car and entered that car. Almost immediately thereafter, a person dressed similarly to Gomez-Rojas was observed leaving the rental car in the Rudolph Chevrolet lot and exchanging vehicles there with an unidentified individual who drove the rental car to an undiscovered location. Finally, at the time Sutherlin was arrested in the motel parking lot while in the process of exchanging the marihuana for DeHoyos’ cash, Gomez-Rojas was apprehended while sitting in his own automobile 100 feet away in the same parking lot.

Gomez-Rojas and Sutherlin agree on the former individual’s true role in the piece and each defendant took the stand to give a reasonably coherent explanation of Gomez-Rojas’ unfortunate ubiquity on the night of November 12, 1973. Very generally, defendants contend that they had been friends for some time on the night in question, so that when Suth-erlin saw Gomez-Rojas enter the restaurant parking lot, he rushed out to warn the latter away, lest Gomez-Rojas make some amiable remark upon finding Suth-erlin in the restaurant and thereby reveal to DeHoyos the identity that Suth-erlin claims he had not yet divulged. Gomez-Rojas contends that his activities in the Rudolph Chevrolet lot are easily explained by the fact that he is a salesman at that establishment and frequently has to move several cars about on the lot prior to closing for the night; he necessarily adds that the federal agents are mistaken in their contention that one of the autos he moved that night was the rental vehicle used in the marihuana transaction. Finally, Sutherlin and Gomez-Rojas agree that the former had asked the latter for a ride home from the motel that night, not because Suth-erlin actually needed such a ride (he had his own vehicle on hand), but because Sutherlin wanted a friend around when dealing with DeHoyos late at night in a deserted motel parking lot.

Sutherlin and Gomez-Rojas presented the jury with a plausible explanation of Gomez-Rojas’ behavior, an explanation which differs in only a few particulars from what Government witnesses testified that they saw on that night. Be that as it may, the jury rejected the defendants’ story and convicted Gomez-Rojas of the offenses charged against him. Although this is a close case, we cannot say that there is insufficient evidence to support the verdict. A comparison of this case with our decision in United States v. Arroyave, 5 Cir. 1973, 477 F.2d 157, will demonstrate why this verdict must stand.

The defendant in Arroyave was charged with conspiracy to import and possess marihuana and with possession of marihuana with intent to distribute. The evidence there showed that Arroy-ave was a friend of a co-defendant, Po-sada, that Posada’s truck was seen near Arroyave’s home on several occasions and that on the day when a plane carrying the marihuana upon which the charges were based landed in the United States and the marihuana delivered to Posada, Arroyave was observed near the aircraft and spoke to Posada at that time. We found that the evidence against Arroyave amounted at most to guilt by association and that the Government’s circumstantial evidence was insufficient to exclude the possibility that Arroyave knew nothing about the contraband transaction.

Much of the evidence against Gomez-Rojas tends only to establish his guilt by association with Sutherlin, who had admitted his part in the transaction. The evidence which differentiates this case from Arroyave is the testimony by several surveilling federal agents which tends to show that Gomez-Rojas moved the rental automobile from the place where DeHoyos had left it to the Rudolph Chevrolet lot, where another individual drove it into the night, to be loaded with marihuana by unknown hands at an unknown place. Considered in conjunction with the other circumstantial evidence against Gomez-Rojas, this action was sufficient to support an inference by the jury that Gomez-Rojas was a knowledgeable and active member of the conspiracy, and not just an innocent bystander. See United States v. Prieto, 5 Cir. 1974, 505 F.2d 8 and United States v. Sidan-Azzam, 5 Cir. 1972, 457 F.2d 1309. Once the jury made such a finding, it could consider Sutherlin’s alleged statements that “his man” was supplier and that Gomez-Rojas was “his man.” See United States v. Tyler, 5 Cir. 1975, 505 F.2d 1329. The jury could have found that this combination of Gomez-Rojas’ actions and Sutherlin’s statements was inconsistent with every reasonable hypothesis of Gomez-Rojas’ innocence. There was thus sufficient evidence to sustain Gomez-Rojas’ conviction on the conspiracy charge.

Since constructive as well as actual possession of contraband will sustain a conviction under 21 U.S.C. § 841(a), United States v. Ferg, 5 Cir. 1974, 504 F.2d 914, and since the dominion and control over the contraband necessary to constitute such possession can be proven by ' circumstantial evidence, United States v. Richardson, 5 Cir. 1974, 504 F.2d 357, we believe that the evidence here was sufficient to support the jury’s verdict that Gomez-Rojas indeed possessed the marihuana with intent to distribute it.

Gomez-Rojas also contends that the trial court erred in failing to declare a mistrial on two occasions when questions by defense counsel to two federal agents elicited responses indicating that Gomez-Rojas had previously been involved in drug transactions. There is no merit in this argument. Each answer was in fair response to counsel’s inquiry about why it was that the surveilling agents recognized Gomez-Rojas. There is no allegation or evidence of Government impropriety in the matter. See United States v. McKinley, 5 Cir. 1974, 493 F.2d 547.

Gomez-Rojas claims that the district court should not have admitted De-Hoyos’ testimony that Sutherlin stated “[t]hat is my man” when Gomez-Rojas drove into the restaurant parking lot for the first time. The Government rejoins that this statement was admissible against Gomez-Rojas, as it falls within the co-conspirator exception to the hearsay rule. This exception admits hearsay statements made by one conspirator about another, if the statement was made in the course of and in furtherance of the conspiracy. Krulewitch v. United States, 1949, 336 U.S. 440, 69 S.Ct. 716, 93 S.Ct. 716, 93 L.Ed. 790; United States v. Register, 5 Cir. 1974, 496 F.2d 1072. In order to set the predicate for the admission of such testimony, however, the Government must first establish, through independent evidence, a prima facie case of conspiracy with respect to the defendant against whom it is to be admitted. Until that time, the evidence is admissible only against the declarant; once the jury finds that such a foundation has been laid, however, it may consider the hearsay testimony for whatever else it may show. United States v. Tyler, supra; United States v. Apollo, 5 Cir. 1973, 476 F.2d 156; see Lutwak v. United States, 1953, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593.

The trial court here gave a full and accurate cautionary charge to the jury at the time Sutherlin’s statement was offered and the court repeated the charge at the conclusion of the trial. The value of such a charge in these circumstances is highly questionable, especially where, as here, the evidence against the defendant against whom it is offered is completely circumstantial. Furthermore, it is difficult to see what possible value the statement could have if it is not admissible for the purpose of inculpating Gomez-Rojas in the conspiracy. However that may be, the case law clearly compels the conclusion that the statement was properly admitted.

Gomez-Rojas next argues that the trial court’s instructions to the jury constituted a directed verdict of guilty. In reviewing a trial judge’s instructions, we must evaluate the charge as a whole, without isolating statements which may appear prejudicial outside the context in which they were made. United States v. Cisneros, 5 Cir. 1974, 491 F.2d 1068; United States v. Williams, 5 Cir. 1973, 473 F.2d 507; United States, v. Jacquillon, 5 Cir. 1972, 469 F.2d 380. Judged by this standard, although the district court at times appears to have been less than even-handed in its recitation of the evidence, its charge, taken as a whole, was complete and accurate, with the exception already noted with respect to entrapment, about which Gomez-Rojas may not complain.

Finally, Gomez-Rojas charges that the trial was so interspersed with judicial interference with the presentation of his case, and so replete with comments from the bench unfavorable to him that he was denied a fair trial. In considering this very serious charge, we must look to the record as a whole, United States v. Hill, 5 Cir. 1974, 496 F.2d 201; United States v. Ramsey, 5 Cir. 1974, 493 F.2d 457, noting that the district judge, as governor of the trial process, may take measures to ensure that the trial progresses smoothly, and may comment on the evidence, so long as he is careful to instruct the jury that they are the sole judges of the facts. United States v. Cisneros, supra; United States v. Jacquillon, supra. We will affirm a conviction on the basis of a record disclosing significant judicial participation, however, only when we are convinced that the intervention could not reasonably have led the jury to a predisposition of guilt by improperly confusing the functions of judge and prosecutor. United States v. Hill, supra; see generally Quercia v. United States, 1933, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321. Although the trial judge here sometimes seemed less than convinced by some of defendant’s evidence, and at other times displayed considerable impatience with Gomez-Rojas’ presentation of his case, we do not find the sort of judicial advocacy of the Government’s position which would have denied Gomez-Rojas a fair trial.

In summary, Sutherlin’s conviction is reversed; he is entitled to a new trial because of an erroneous jury instruction. If, at a second trial of Sutherlin, Smith again declines to testify, the district court must be careful to ascertain whether and to what extent his claim of right is well-founded, and what effect this finding should have on Sutherlin’s presentation of his entrapment defense to the jury. Gomez-Rojas, on the other hand, had a trial free from reversible error. Although the circumstantial evidence against him is far from overwhelming, it is sufficient to sustain the jury verdict; Gomez-Rojas’ conviction is affirmed.

Affirmed in part; reversed in part and remanded.

      . It is perhaps worthy of note that Smith repeated this performance one week later in connection with the case of United States v. Waddell, 5 Cir. 1975, 507 F.2d 1226, also decided today.

      . In Russell, the Court stressed that the entrapment defense was of a statutory nature and not a constitutional one.

      . In United States v. Oquendo, 5 Cir. 1974, 490 F.2d 161, we determined that there was nothing in United States v. Russell, supra, which undermined the validity of the Bueno rationale.

      . There was some confusion among the several agents who testified about the events in and near the Rudolph Chevrolet lot as to whether the car that Gomez-Rojas drove into the lot was a light brown or beige Ford or a gold Chevrolet (it was the former). We do not believe that such confusion, especially at night, is significant.


source: Caselaw Access Project

author: EDWARDS, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Manuel ORTIZ, Defendant-Appellant.
    No. 73-1044.
    United States Court of Appeals, Sixth Circuit.
    Dec. 12, 1974.

      Joseph A. Dubyak, Cleveland, Ohio (Court appointed), for defendant-appellant.
    • Fredrick M. Coleman, U. S. Atty., Frank A. Justen, Toledo, Ohio, for plaintiff-appellee.
    Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges.
   EDWARDS, Circuit Judge.

Appellant Manuel Ortiz was convicted after jury trial in the United States District Court for the Northern District of Ohio, Western Division, on a charge of receiving and concealing a stolen motor vehicle, in violation of 18 U.S.C. § 2313 (1970). He was sentenced to one year and a day.

The proofs upon which the jury acted included these undisputed facts. Ortiz and a companion were stopped on the Ohio Turnpike when they had no money to pay the toll. A radio check advised the officer who was making out the unpaid toll report that the 1968 Chevrolet Ortiz was driving had been stolen the previous day in New York City. Thereupon Ortiz was arrested, given Miranda warnings, and searched. A car registration and a Bank Americard card in the name of Paula Ortiz of New York City were found and were later introduced in evidence. Paula Ortiz (apparently no relation to appellant) testified that she owned the car in question and that it had been stolen while parked near her work. She also testified that she had been parking her car overnight in the Crotona Park Garage in the Bronx, that the garage kept a key to the car, that she knew appellant Manuel Ortiz since he had worked several weeks at the Cro-tona Park Garage just before the car was stolen and had parked her car. She also said that she had bought the car for $2,600 two years before it was stolen. Paula Ortiz also testified that when the car was returned to her after it had been stolen, it came back with a different key in it, and that there was a key making shop near the Crotona Park Garage.

An employee of the Crotona Park Garage testified that appellant had worked at the garage for several weeks before the theft of the car in question, and added the information that there was a place nearby which made duplicate keys.

Statements from appellant were introduced by testimony of a state highway patrolman and an FBI agent who also testified that Miranda warnings had been given to appellant before questioning. Appellant had first indicated that his companion was the owner of the car and later that he (appellant) had bought the car for $265 in New York City from a man unknown to him. He said that this man had given him the registration and the credit card in the name of Paula Ortiz. At the trial appellant did not take the stand but his companion in the automobile when arrested testified that appellant had told him that he had bought the car for $265 in New York City.

Three appellate contentions are presented: First, that appellant’s statements should not have been admitted, since he did not understand the Miranda warnings due to language difficulty; second, that an FBI agent testified to appellant’s prior arrest record; and third, that the District Judge erred in charging that the jury could infer knowledge that property had been stolen from unexplained possession of property recently stolen and recently transported across state lines.

As to the first issue, we find no error. No motion to suppress appellant’s statements was made and the record would support the finding that Miranda warnings had been given, had been understood, and that the statements now complained of had'been voluntarily furnished.

As to the charge complained of, we find no error. This instruction is clearly within the sanction of a recent Supreme Court opinion. Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973).

The only appellate issue of significance in this case pertains to the testi-' mony of an FBI agent concerning appellant’s prior arrest record. We read the government’s brief as confessing error in this regard. While the claim is advanced that the testimony was inadvertent and appellant’s brief appears to accept this, we do not agree. Agents of the Federal Bureau of Investigation know from their training and experience that records of arrests not resulting in conviction are not generally admissible in evidence and that reference to such on the witness stand usually would be prejudicial and reversible error. The fact that appellant’s trial counsel did not object or move to strike does not serve to waive this sort of error, nor does it excuse the failure of the judge to intervene and strike the offending testimony and instruct the jury to disregard it. Fed.R. Crim.P. 52(b); United States v. Gray, 468 F.2d 257 (3d Cir. 1972); United States v. Garber, 471 F.2d 212 (5th Cir. 1972).

The only reason in this case for this court to fail to treat the introduction of this evidence as plain error is that our review of the whole transcript of the trial convinces us that the evidence of appellant’s guilt was so overwhelming that this example of overkill could not possibly have influenced the outcome or “affect[ed] substantial rights” of appellant. Fed.R,Crim.P. 52(a); Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); United States v. Sidman, 470 F.2d 1158, 1163 (9th Cir. 1972), cert. denied, 409 U.S. 1127, 93 S.Ct. 948, 35 L.Ed.2d 260 (1973). We can think of no possible innocent explanation of appellant’s possession and use of Paula Ortiz’s license, registration and credit card, in addition to her car.

The judgment of the District Court is affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Sylvester WADDELL, Defendant-Appellant.
    No. 74-2041.
    United States Court of Appeals, Fifth Circuit.
    Feb. 10, 1975.

      John P. Searls, Larry Victorson, El Paso, Tex., for defendant-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ronald F. Ederer, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and GODBOLD, Circuit Judges.
   GOLDBERG, Circuit Judge:

On March 22, 1974, defendant-appellant Waddell was convicted by a jury of possession of a quantity of cocaine with intent to distribute that narcotic in violation of 21 U.S.C. § 841(a)(1). Although defendant was originally sentenced to serve a ten-year prison term with five years special parole, the trial judge subsequently reduced his sentence to five years imprisonment and five years special parole. The circumstances of Wad-dell’s apprehension and trial are very similar to those of United States v. Gomez-Rojas, 5 Cir. 1975, 507 F.2d 1213 [Feb. 10, 1975, No. 74-1914], also decided today. Here, as in Gomez-Rojas, the district court erred in its treatment of a defendant’s entrapment defense. We reverse.

On July 3, 1973, George Smith, an alleged Government informer, arranged a meeting in El Paso, Texas, between defendant and federal undercover agent Staton. At that meeting, Waddell tentatively agreed to sell Staton an ounce of cocaine for $1,000 or $1,100. The three men met again on the following day, and Waddell sold Staton 14 grams of cocaine which he had obtained from one Marial, a Mexican national. For the next several months, Smith and Staton urged Wad-dell to make additional sales of contraband, but defendant refused to do so. He was finally arrested on November 13, 1973, the day after the arrests in Gomez-Rojas.

Defendant Waddell, like defendant Sutherlin in Gomez-Rojas, admits participating in the narcotics transaction for which he was charged. He contends, however, that he was entrapped into making the sale by Smith, whom he claims is a paid Government informer. Waddell does not contend, as Sutherlin did, that Smith supplied the cocaine, so that there is no question of the Government selling contraband to itself. See United States v. Bueno, 5 Cir. 1971, 447 F.2d 903. Waddell alleges instead that Smith, a long-time acquaintance, had pressured him for some months to sell various sorts of contraband, but that he, Waddell, had always refused. Finally, in June of 1973, Smith told defendant that he needed to obtain some cocaine in order to pay pressing gambling debts. Waddell argues that only then did he capitulate, contact his friend Marial, and make the sale to Smith and Staton. In a word, Waddell claims that he had no predisposition to commit the crime with which he is charged, but rather that Smith induced him to break the law.

I

Here, as in the case of Sutherlin in Gomez-Rojas, Smith was subpoenaed to testify as a witness for a defendant alleging entrapment. On March 20, 1974, the day before Waddell’s trial was to begin, Smith appeared before the trial judge, who had recently completed the Gomez-Rojas trial, and once again advised the court that, if called as a witness, he would refuse to testify for fear of self-incrimination. Once again, the district court immediately excused Smith, despite Waddell’s protest.

We have discussed the consequences of the district court’s decision to excuse Smith from giving testimony in Gomez-Rojas; the discussion there is controlling here. For reasons set out below, we have concluded that Waddell is entitled to a new trial. At a second trial, if Smith continues to refuse to testify, the trial court must make a searching inquiry into the validity and extent of Smith’s Fifth Amendment claims and then determine what use, if any, Wad-dell may make of Smith’s reluctance to testify at the new trial.

II

Waddell also complains that the district court improperly instructed the jury on the legal basis of his entrapment defense, in that the court failed to advise the jury that entrapment can be perpetrated by paid Government informers as well as by law enforcement officials. The trial judge charged the jury that:

In this case, the fact that someone may have informed the agent that this man [Waddell] was available to make a sale — the Government can accept that. The only thing the Government cannot do as far as entrapment is concerned is to originally put this in his mind. ,
. If somebody urges you to break the law and finally, to get them off your back you go ahead and break the law you would be legally responsible, but if the Government directs somebody to keep harassing him and harassing him, a man that had never engaged in this activity and didn’t have an inclination that way, then that would be an excuse, but the mere fact that an informer notifies the Government and the Government provides the opportunity, that is not entrapment, if the Government wasn’t the one that instigated the harassment, or if this man Smith harassed him and if the Government did not tell Smith to harass this man, then you wouldn’t . have entrapment either.
If you believe [that Smith acted as Waddell alleges he did], then you decide whether the Government was the one that instigated George Smith to harass him over a period of a year’s time or a little over a year’s time, [emphasis added],

Although we must evaluate a jury charge as a whole, without paying particular attention to an isolated statement which is not prejudicial in the context of the total charge, United States v. Cisneros, 5 Cir. 1974, 491 F.2d 1068, it is clear that insofar as this instruction charges that only law enforcement officials can entrap citizens, the instruction is erroneous. The law is that Smith, if he was a paid Government informer, could entrap Waddell, even though no Government officer knew of Smith’s actions, because the Government is deemed to have constructive knowledge of such chicanery; the defense of entrapment cannot be defeated because the trapping was perpetrated by a Government surrogate. Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; United States v. Oquendo, 5 Cir. 1974, 490 F.2d 161; United States v. Bueno, supra; see United States v. Gomez-Rojas, supra. Since this error strikes at the heart of Waddell’s only defense, and since it was not cured elsewhere in the charge, defendant’s conviction must be reversed and his cause remanded for a new trial.

Reversed and remanded.

      . Our disposition of this case is such that we pretermit discussion of Waddell’s other claims of error.


author: PER CURIAM:

text:
    Ernest FREEMAN, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent-Appellee.
    No. 74-3480
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 12, 1975.
    Ernest Freeman, pro se.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, La., Barbara B. Rutledge, Asst. Atty. Gen., John Baker, Joseph Tosterud, Asst. Dist.' Attys., New Orleans, La., for respondent-appellee.
    Before WISDOM, GOLDBERG and GEE, 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.

   PER CURIAM:

Freeman, convicted of armed robbery in the Orleans Parish Criminal District Court, petitions for a writ of habeas corpus. As noted by the court below, the state court record reveals that Freeman personally appeared in court and withdrew his appeal at a time when counsel had already put it in motion. That record also contains Freeman’s letter to his counsel stating that he had made up his mind about the appeal and decided to take his chances in prison. The court below found, that the record clearly reflects Freeman chose not to appeal, deliberately bypassing his appellate remedies in state court. It therefore declined to conduct an evidentiary hearing and dismissed his petition. Its opinion states, in pertinent part:

Where the record conclusively and unequivocally demonstrates that the accused made a conscious and intentional waiver of his right to a thorough and careful examination of his constitutional claim on direct appeal, the denial of federal habeas corpus relief is proper. Bowman v. Wainwright, 460 F.2d 1298 (5th Cir. 1972). A federal habeas corpus judge may, in his discretion, deny relief to an applicant who has deliberately bypassed the orderly procedure of the state courts and who, in so doing, has forfeited his state court remedies. Hairston v. Alabama, 465 F.2d 675 (5th Cir. 1972).
Where the record of a state trial reveals a deliberate bypass clearly and beyond doubt, an evidentiary hearing in the federal courts as to whether there was a deliberate bypass is not required. United States ex rel. Cruz v. La Vallee, 448 F.2d 671 (2d Cir. 1971), cert. den., 406 U.S. 958, 92 S.Ct. 2064, 32 L.Ed.2d 345 (1972).

This is a correct statement of the law.

Affirmed.

      . In his petition to our court, Freeman asserts he did not appeal because he “was not aware of right to appeal.”


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Helen CRABTREE, Hershie Laff, Murray Yunes, Nicholas Hercules Nardone, Defendants-Appellants.
    No. 71-2809.
    United States Court of Appeals, Fifth Circuit.
    Feb. 10, 1975.
    Rehearing Denied May 2, 1975.
    Nicholas J. Capuano, Miami, Fla., for Crabtree.
    Max Lurie, Miami, Fla., for Laff.
    E. David Rosen, Miami, Fla., for Yunes.
    Louis Vernell, Miami Beach, Fla., for Nardone.
    Robert W. Rust, U. S. Atty., Gary L. Betz, Atty., U. S. Dept, of Justice, Miami, Fla., John Robinson, Dept, of Justice, Washington, D. C., for plaintiff-ap-pellee.

      Before THORNBERRY and RONEY, Circuit Judges.

       Hon. One L. Phillips, of the Tenth Circuit, sitting by designation, died after argument but before decision. Consequently, this decision is rendered by a quorum pursuant to Title 28 U.S.C.A. § 46(c) and (d). See Kelly v. Page, 335 F.2d 114 (5th Cir. 1964).

   PER CURIAM:

Disposition of these appeals has been held in abeyance awaiting the decisions of the Supreme» Court of the United States in United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974) and United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). A careful study of these opinions convinces us that these cases must be reversed and remanded for new trials free from the possible taint of evidence which is the product of an illegal wiretap.

All defendants were convicted of using the telephone in interstate commerce to facilitate unlawful gambling activities in violation of 18 U.S.C.A. §§ 1084 and 1952. Much of the evidence against the defendants was derived from two wiretaps, both ordered by the late Judge Ted Cabot. The first tap was ordered on December 1, 1969, and the second, an extension order, on December 11, 1969. Prior to their trial the defendants moved to suppress all such evidence as being illegally obtained. Their motions were denied and their convictions by the court without a jury followed. Upon their appeals to this Court, some factual controversies arose concerning the procedure followed within the Department of Justice in authorizing the wiretap requests in this ease, and we remanded the case to allow the district court to determine the factual issues, as mandated by United States v. Robinson, 472 F.2d 973 (5th Cir. 1973) (en banc). United States v. Crabtree, 475 F.2d 755 (5th Cir. 1973). The District Court for the Southern District of Florida held a hearing on these and other cases involving similar issues and has reported its findings to this Court. United States v. Laff, 365 F.Supp. 737 (S.D.Fla.1973). On the basis of those findings, we reverse the convictions and remand the cases for proceedings not inconsistent with this opinion.

The first wiretap was personally authorized by then Attorney General John N. Mitchell, as reflected by his initials on the “Interception Order Authorization.” The district court found that the discrepancy between this fact and the representation made to Judge Cabot that Assistant Attorney General Will Wilson had been specially designated by the Attorney General to authorize the wiretap application, warranted suppression of the evidence obtained in that wiretap. The district court reached this conclusion without the guidance of United States v. Chavez, supra, which is now available to this Court. Under the authority of Chavez, it is clear that the procedure followed in this first tap did not render the evidence obtained thereby inadmissible and the district court’s decision that the evidence obtained under that wiretap order should be suppressed must be reversed.

The convictions, however, rested partially upon evidence ' obtained under the extension order dated December 11, 1969. As to this evidence, the Government failed to carry its burden of proving that the authorization for the extension order comported in substance with the requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. §§ 2510-2520. It is clear that the initials, “J.N.M.,” on the “Interception Order Authorization” which supported the second wiretap were placed on that authorization by the Attorney General’s Executive Assistant, Sol Lindenbaum, and not by then Attorney General Mitchell himself. Neither Mitchell nor Lindenbaum could remember a specific oral directive from Mitchell for Lindenbaum to initial the order for the Attorney General. See United States v. Laff, 365 F.Supp. at 740 n. 4. Without proof of such a specific order the authorization stands with only the Executive Assistant’s specific prior approval, and that is insufficient to support, the legality of the tap. See United States v. Giordano, supra. Thus, the Government has failed in its burden of proof. We do not reach the issue of whether such a telephonic directive from the Attorney General could have rendered the wiretap authorization procedure acceptable, because the district court could not find as a fact that such directive had been given. See United States v. Roberts, 477 F.2d 57 (7th Cir. 1973), cert. denied, 417 U.S. 908, 94 S.Ct. 2604, 41 L.Ed.2d 212 (1974). Consequently, any evidence derived solely from the extension tap should not have been admitted against the defendants. See 18 U.S.C.A. § 2518(10)(a)(i). It is necessary, therefore, to reverse these convictions.

Since these cases must be remanded for a new trial without the taint of the illegally seized evidence derived from the second wiretap, we need not pass on the other errors alleged by the defendants on these appeals.

Reversed and remanded.


author: CLARK, Circuit Judge:

text:
    EAC CREDIT CORPORATION, Plaintiff-Appellee, v. E. L. KING et al., Defendants, Jess Porter and Joyce Porter, Defendants-Appellants.
    No. 73-3998.
    United States Court of Appeals, Fifth Circuit.
    Feb. 12, 1975.

      Earl Keyes, Jackson, Miss., for defendants-appellants.
    Harmon W. Broom, Jackson, Miss., for plaintiff-appellee.
    W. E. Gore, Jr., Jackson, Miss., for other interested parties.
    Before COLEMAN, CLARK and RO-NEY, Circuit Judges.
   CLARK, Circuit Judge:

In this diversity based action EAC Credit Corporation (EAC) sued to recover financing losses under guaranty agreements which had been executed by the Kings and the Porters in connection with their business operations in Jackson, Mississippi. A jury returned verdicts for EAC on the first three counts of the complaint; the court directed a verdict for defendants on the fourth count. From a judgment imposing joint and several liability against all four defendants in the amount of 50,994.00 dollars, only the Porters have appealed. We affirm on the first two counts and reverse on the third.

I

In late 1965, Mr. King and Mr. Porter, who were then doing business as Jackson Maytag Company, approached EAC with a request for financing in connection with their sales of Speed Queen washers and driers. EAC agreed to provide “floor plan” financing for Speed Queen products, but after reviewing the financial statements of Jackson Maytag, EAC insisted that the account be undergirded by personal guaranties. Accordingly, Mr. Porter and Mr. and Mrs. King each signed separate documents. The document signed by Mr. Porter on September 16, 1965 contained the following pertinent provisions:

I do hereby guarantee to said EAC Credit Corporation, the prompt payment of any and all indebtedness now due or hereafter to become due to the said EAC Credit Corporation, to the extent of a total of $40,000 covering purchases and loans secured by Speed Queen inventory to Jackson Maytag Company, its successors and assigns, for any such goods which may be purchased, shipped, or ordered at any time in the future.
******
This guarantee shall apply only to •merchandise financed on a “floor plan” basis whereby the inventory is being financed for resale and for rental.

When Jackson Maytag Company sought to begin handling Speed Queen products, the Maytag distributor insisted that “Maytag” be removed from the company name. Accordingly, in December 1965 the articles of incorporation of Jackson Maytag Company were amended to change the corporate name to “King-Porter Company, Inc.”

In April 1968 King and Porter decided to expand their dealings in Speed Queen merchandise to include commercial coin-operated washers and driers. Speed Queen .was agreeable, but company policy required that such commercial operations be kept separate from retail sales. Hence, King, Porter and a third man, Mr. Tymes, formed “King-Porter Service Company, Inc.” to handle the commercial merchandise. At about the same time, King and Porter incorporated “King-Porter, Inc.” to operate a second retail store in Jackson. In February 1969, a third business was incorporated as “King-Porter, Corp.”, which, like the second retail store, sold hardware as well as appliances. Mr. King testified that each store was incorporated separately because each had different management and because they wanted to facilitate divestiture in case one location proved unprofitable. Three of the four corporations listed 426 North State Street as the address of their initial registered offices, although only one, King-Porter Co., Inc., actually conducted business at that location.

King and Porter were each fifty percent shareholders in three of the four business corporations; Tymes owned a one-third interest in King-Porter Service Co., Inc. Mr. King and Mr. Porter were respectively president and vice-president of each corporation, although only King took an active part in their operation. Neither of their wives owned an interest in any of the companies.

In 1968 two additional financing arrangements were effectuated. EAC agreed to extend floor plan financing for non-Speed Queen merchandise to be delivered to the King-Porter companies through purchases by EAC from McKee & McRae, Inc., a wholesale distributor in Jackson. EAC also agreed to provide “retail installment” financing under a plan whereby EAC would purchase installment contracts and rental agreements from the King-Porter companies on a non-notification basis, i. e. no notice of the financing transaction would be given to the retail appliance purchaser and the companies would collect payments on the contracts as they fell due.

A second guaranty, executed by both Mr. and Mrs. Porter, was entered into contemporaneously with this additional financing. The terms of this guaranty, dated August 29, 1968, are set out in the margin. The italicized portions represent terms that were typewritten into blanks on a mimeographed document prepared by EAC. The entire final paragraph was also added to the form in typing but with a style of type different from that used to fill in the blanks. Both Mr. and Mrs. Porter testified that at the time they signed this guaranty the blanks were not filled in. Mr. Porter testified that he signed “on the basis of the last paragraph” only. W. A. Royce, Jr., the EAC representative in charge of dealer financing for Speed Queen and the man from whose office the guaranty originated, testified that the second guaranty was prepared “with reference to” the final paragraph. The copies of this guaranty attached to the complaint and identified by Royce at his deposition did not have the blanks filled in. Royce also testified that the furnishing of personal guaranties was a condition precedent to the financing of the King-Porter Company operations by EAC and indicated that he considered any debt owed to EAC by any King-Porter Company ipso facto covered by the guaranties.

Under Mississippi law a guarantor is entitled to have his undertaking strictly construed, and the contract cannot be extended beyond its precise terms. American Oil Company v. Wigley’s Estate, 251 Miss. 275, 169 So.2d 454 (1964). The person claiming under the guaranty has the burden of showing that the debt whose recovery is sought falls within the contractual terms and that all conditions upon the guarantor’s liability have occurred. However, the subjective beliefs and intentions of the parties are relevant to the extent necessary to interpret ambiguities in the written document; and to this end, matters extrinsic to the writing may properly be considered by the trier of the facts.

II

The claims of Counts I and II of the complaint were made up of sums owed to EAC by various individual debtors of the King-Porter companies whose merchandise purchase and rental accounts had been acquired by EAC pursuant to the installment financing agreement. Plaintiff’s Exhibit No. 4 was a list of seventy-one names, each accompanied by an account number and an amount representing the uncollected balance due. This tabulation constituted the only physical evidence in support of the claims made in Count I. Royce testified that the list represented people who owed money to “King-Porter Company” on installment contracts or leases. The supporting documents were offered as evidence but were later withdrawn. Plaintiff’s Exhibit No. 4 was properly admissible as a summary of the accounts, which were physically in court and available for inspection. See New Amsterdam Cas. Co. v. W. D. Felder & Co., 214 F.2d 825 (5th Cir. 1954); Proposed Federal Rules of Evidence, Rule 1006, 56 F.R.D. 183, 345-346 (1973). Count II was supported by Plaintiff’s Exhibit No. 5, which contained another list of debtors. However, this exhibit also included a conditional sales contract or rental agreement corresponding to every name on the list. Each contract or agreement is stamped “Assigned to EAC Credit Corp. by” next to King-Porter Co., Inc.’s name. All of the rental agreements and most of the contracts contain the statement that they are assigned with recourse.

Mr. Porter’s September 16, 1965 guaranty is expressly limited to merchandise financed on a “floor plan” basis (see note 2) and cannot supply the source of liability on these debts. Hence, any recovery against the Porters on the first two counts must be predicated on the final paragraph of the August 29, 1968 document (note 4, supra) which guaranteed certain accounts receivable. The Porters claim that the debts sued on are not “accounts receivable . . . against which [EAC] has or will advance funds”. They contend that the term “accounts receivable” is limited to sums owed on o . open account, and specifically that it does not include debts evidenced by chattel paper of the sort upon which Counts I and II.are based. Royce admitted that this type of chattel paper might more appropriately be described as “contracts receivable”, but maintained that the term as used in the guaranty covered what was in fact transferred.

The words of a guaranty agreement are to be given their ordinary meaning in the absence of an indication that they were used in a special sense. Cf. Miller v. Fowler, 200 Miss. 776, 28 So.2d 837 (1947); Bank of McLain v. Pascagoula Nat. Bank, 150 Miss. 738, 117 So. 124 (1928). A guaranty should be interpreted in accord “with the intention of the parties, as manifested by the terms of the guaranty, in connection with the subject matter and surrounding circumstances, neither enlarging the words beyond their natural import in favor of the creditor nor restricting them in aid of the [guarantor].” Wingo-Ellett & Crump Shoe Co. v. Naaman, 175 Miss. 468, 167 So. 634 (1936).

[T]he words should receive a fair and reasonable interpretation, so as to attain the objects for which the instrument is designed and the purposes to which it is applied. We should never forget that letters of guaranty are commercial instruments — generally drawn up by merchants, in brief language — sometimes inartificial, and often loose in their structure and form; and to construe the words of such instruments with a nice and technical care would not only defeat the intentions of the parties, but render them too unsafe a basis to rely on for extensive credits so often sought in the present active business of commerce throughout the world.

Lawrence v. McCalmont, 2 How. (U.S.) 426, 11 L.Ed. 326 (1844).

In support of their contention that the term “accounts receivable” has a fixed, unambiguous commercial meaning, the Porters draw on a substantial body of case law as well as the Uniform Commercial Code. Where it has been necessary to define the term without reference to intent the courts have generally concluded that it applies only to sums due on open account not evidenced by a security agreement or other writing which reduces the debt to a stated amount.

Prior to adoption of the Uniform Commercial Code by Mississippi in 1968, a definition of accounts receivable consistent with the Porters’ claim appeared in a Mississippi statute that applied to the assignment of accounts receivable. Even if this statute had been in effect in August, 1968 when the second guaranty was signed, it would not preclude a finding of a broader use of the term in the guaranty agreement. The statutory definition does not purport to limit or define these words for all contract usages. The agreement we interpret today does not assign the accounts, but only uses the term to describe an independent transaction.

The Uniform Commercial Code does not define “accounts receivable”, but does by implication perpetuate the prior usage in UCC Section 9 — 106, Miss.Code Ann. § 75 — 9—106, wher? “account” is defined to mean “any right to payment for goods sold or leased . . . which is not evidenced by an instrument or chattel paper.” Chattel paper is defined in Section 9 — 105, Miss.Code Ann. § 75-9-105, to mean “a writing or writings which evidence both a monetary obligation and a security interest in or a lease of specific goods.” The official comments to the Code, not included with the Mississippi codification, define “account” as used in the UCC to mean the “ordinary account receivable.”

It is clear from an examination of Plaintiff’s Exhibit No. 5 that the debts involved in Counts I and II would fall within the Code definition of “chattel paper” rather than “accounts”. If we were concerned here with the transfer of paper between the King-Porter companies and EAC, the transaction would fall expressly within the Code’s ambit, and EAC would be bound to the Code’s meaning of the term chosen. The execution of a guaranty is not a Code transaction. A guaranty is not a “transaction . . . which is intended to create a security interest in personal property or fixtures including goods, documents, instruments, general intangibles, chattel paper, or accounts.” Miss. Code Ann. § 75-9-102(l)(a) (1972). Neither does a guaranty of accounts receivable fall within the coverage of Article 3 of the UCC, Miss.Code Ann. §§ 75 — 3—101 to 75 — 3—805 (1972), the formalities of which apply only to guaranties of commercial paper. See Cities Service Oil Co. v. Collins, 121 Ga.App. 38, 172 S.E.2d 653 (1970). Thus the definitions contained in the Code can only be evidence of what the parties might have intended. Without the compulsion of statutory definition, the meaning of the term is not so well settled or so clearly inapplicable to the transactions sued on that we could say, as a matter of law, that the parties could not by .using it have contemplated the individual account balances created by the sales and leases that took place here. See Annot., 41 A.L.R.2d 1395.

The court below refused a request by the Porters that the jury be instructed that there were no accounts receivable purchased from King-Porter Company. No definition of accounts re-ceivable was submitted or given. The court did instruct the jury that if they believed that the August 29, 1968 agreement was intended to cover only accounts receivable, and if they also found there were no accounts receivable in the case, then they should find for the Porters on that particular guaranty. This procedure properly left to the jury the determination of what the parties intended to include within the ambiguous phrase. By their verdict the jury concluded that the term was meant to encompass any “receivable” whether or not secured. This conclusion is supported by Royce’s testimony and offers no basis for reversal.

Further pursuing their defense that the guaranty language excluded these transactions, the Porters deny that there is any evidence that EAC advanced funds against the paper submitted in support of Counts I and II. They contend that to “advance funds” means to furnish money and take the accounts receivable as collateral, and that the evidence clearly establishes that EAC purchased the receivables from King-Porter. Royce’s testimony on this point was unclear. Several times he represented that EAC bought the receivables from the King-Porter companies, but he also stated that EAC loaned money and took the contracts and leases as “additional collateral.” No documentary evidence, such as cancelled checks or a security agreement on the transferred paper, was offered to clarify the nature of the actual transfer.

However, the Porters’ attempt to draw a distinction between the sale of a receivable and its transfer as security for a loan is unpersuasive. Like “accounts receivable”, the contract phrase “advance funds” has no fixed legal meaning, and its application here raised an issue of fact. Under the Porters’ own interpretation the condition may be found to have been satisfied because there is evidence in the record, in the form of Royce’s testimony, that EAC did advance funds against the receivables. But, the jury could also properly find, from all the circumstances, that the parties intended the agreement to cover EAC’s outright purchase of accounts. Whether the transfer could technically be denominated a loan or a sale, the jury’s verdict placed these transactions within the coverage of the guaranty.

The Porters further contend that the record contains no evidence that some definite amount of money was ever furnished by EAC to the King-Porter companies in return for the receivables, or that any money furnished was never repaid. The record confirms that no documentary evidence was introduced by which the amounts received by the King-Porter companies can be calculated. Royce did indicate, however, that the receivables involved in Counts I and II were part of the installment financing arrangement, the essence of which was the exchange of money for the accounts. When asked to describe the mechanics of the financing operation, Royce stated that “in the case of the accounts receivable, the items of counts one and two, the money was advanced from our office in Cincinnati to King-Porter. . . . ” Neither King nor Porter denied the authenticity of the paper underlying either count or its transfer in connection with the installment financing plan. On the contrary, Mr. King testified that EAC “bought” contracts from each of the companies. Further evidence that the transfers took place is to be found in the notation on each document of its assignment to EAC. Royce also testified that none of the debts claimed in the four count complaint had been paid.

Proof of the precise sum received by the King-Porter companies as consideration for the receivables is superfluous to a determination of the fact of a transfer of funds. The testimony summarized above provided substantial evidence from which the jury could infer that money was in fact furnished by EAC pursuant to the installment financing agreement described in the guaranty. Moreover, the Porters’ failure to raise in their motion for a directed verdict an issue as to the sufficiency of the evidence to prove this element of the plaintiff’s case precludes our consideration of the contention on this appeal. House of Koscot Dev. Corp. v. American Line Cosmetics, Inc., 468 F.2d 64 (5th Cir. 1972).

Finally, the Porters deny that there is any evidence to show that the receivables involved in Count I represent debts owed to “King Porter Co.”, as specified in the guaranty, and not to one or more of the other three similarly named corporations. The parties did little at trial to clear up the confusion surrounding the four similarly named corporations. In their answer to the complaint the Porters claimed that “King Porter Co.” as used in the guaranty referred only to King-Porter Service Co., Inc. However, Mr. Porter testified at trial that he intended to guarantee only the receivables of King-Porter Co., Inc., and that he would not have signed had he thought he was guaranteeing the accounts of all four corporations. Royce testified that EAC extended credit to “King-Porter” and did not distinguish between the four corporations for financing purposes. King admitted that the operations of all four stores were supervised at the North State Street office. . Further, the. proof showed that the bankruptcy proceedings for all four corporations were consolidated because of the hopeless confusion and intermingling of the records for each.

While in less confusing circumstances, the name used in the guaranty might well be held to refer only to the one corporation it most closely resembled, the proof here, taken in the light most favorable to the verdict, as it must be, discloses enough evidence of intercor-porate dealings by these common officers to permit the jury to conclude that the guarantee was intended to cover the retail installment financing of all four corporations. This being the case, it is immaterial that there is no specification of which corporation sold the accounts alleged in Count I. The jury might conclude either that the parties used “King Porter Co.” as a generic appellation for all four corporations, or that, as to EAC, all financing was obtained through King-Porter Co., Inc. and hence any receivables which were the subject of financing were receivables of King-Porter Co., Inc. The evidence would support either rationale, and either answers the Porters’ objection.

Ill

Count III concerned floor plan merchandise obtained from McKee & McRae. The goods were of various brands, but did not include any Speed Queen appliances. A total of over 41,000 dollars worth of such goods were repossessed by McKee & McRae on EAC’s behalf at the time petitions in bankruptcy were filed for all four corporations. McKee & McRae offered to purchase the goods for about 31,000 dollars; the 10,365.72 dollars claimed, in Count III thus represents the difference between the amount owed to EAC by King-Porter on the goods, and the amount received from McKee & McRae, and cannot be traced to specific items of merchandise.

Although this sum is transparently a debt owed to EAC by some or all of the King-Porter companies, it is altogether unclear under which guaranty its recovery is premised. EAC did not specify at trial, and the Porters reassert here their claim that neither guaranty they signed was understood to cover this debt. The agreement of September 16, 1965, signed by Mr. Porter alone extends only to “purchases and loans secured by Speed Queen inventory . . . for any such goods which may be purchased, shipped, or ordered at any time in the future.” The emphasized terms clearly limit liability to the financing of Speed Queen products. Indeed, non-Speed Queen merchandise was not floor plan financed by EAC until 1968. In short, no provision of the 1965 guaranty ■ covers this later extension of credit.

The final paragraph of the 1968 guaranty signed by Mr. and Mrs. Porter as already explained applies only to retail installment financing and that is not pertinent to Count III claims. The Porters’ liability on this count must therefore arise from the printed provisions of the 1968 guaranty. This agreement contains the following printed provision which can be read to include the floor plan financing of non-Speed Queen merchandise: “I (we) do hereby guarantee to the said [EAC] the prompt payment of any and all indebtedness now due or hereafter to become due to the said [EAC] from the said King Porter Co., et al, for any goods which may be purchased, shipped, or ordered at any time in the future.” If entitled to its fullest effect, this paragraph could extend liability far beyond the receivables financing described in the added final paragraph and even beyond the floor plan financing of the earlier guaranty.

Additionally, to the extent “King Porter Co.” as used in the final paragraph might be interpreted to refer only to King-Porter Co., Inc., the extension of coverage to King Porter Co., et al almost surely expands the agreement to all four corporations. However, as previously noted, blanks provided in the guaranty for inserting the name of the debtor were apparently filled in after institution of this suit. Both Royce and Porter agreed that this document was prepared and signed with only the installment financing scheme in mind. Royce also stated that he did not know who filled in the blanks or who authorized it to be done. This vagueness is consistent with the fact that at no time did any witness suggest that the printed provisions of the 1968 guaranty were the source of any liability.

Ordinarily, the construction of written instruments is the responsibility of the court. Here the court, without objection, must have determined that the guaranty was ambiguous in its coverage because it left to the jury the task of attributing a meaning to the language. This sort of responsibility cannot be discharged without a basis in the evidence. EAC had the burden of showing that the parties contracted by some part of what they wrote to underwrite the McKee & McRae debt, yet the record discloses no testimony that would support a conclusion that the parties intended that such a debt be covered by the paragraph quoted above. EAC’s failure to tie the debt it claimed in Count III to this or any other term of the 1968 agreement demands reversal of the verdict for EAC as to this count. The district court is directed to modify the judgment accordingly.

Costs of this appeal shall be evenly divided between the parties except for the cost of reproducing Exhibit P — 7, the entire cost of which shall be assessed to appellee.

Affirmed in part, reversed in part and remanded with directions.

      . EAC Credit Corporation and Speed Queen are both divisions of McGraw-Edison Company.

      . Under this plan EAC was to pay Speed Queen for the merchandise and take a trust receipt on goods shipped to Jackson Maytag. Jackson Maytag was to pay EAC 10% of the invoice price immediately upon the sale or rental of each item, and the balance within ninety days thereafter. In practice, a representative of EAC made a weekly check of the Jackson Maytag inventory against the trust receipts and Jackson Maytag was then billed for any item of merchandise that appeared on the trust receipts but was not in its stock.

      . Although executed contemporaneously with Mr. Porter’s, the guaranties signed by the Kings are significantly different in coverage. The crucial provision in their guaranties reads as follows:
      I (we) do hereby guarantee to the said EAC Credit Corporation the prompt payment of any and all indebtedness now due or hereafter to become due to the said EAC Credit Corporation from the said Jackson Maytag Co. [its successors and assigns] for any goods which may be purchased, shipped, or ordered at any time in the future.

      . For and in consideration of the sum of One Dollar, paid to the undersigned the receipt whereof is hereby acknowledged, and in consideration of the granting of credit and financing by Speed Queen, a Division of McGraw-Edison Company, or EAC Credit Corporation, both hereinafter referred to as “McGraw” to King Porter Co., et al, its successors and assigns of Jackson, Miss.

      I (we) do hereby guarantee to the said “McGraw” the prompt payment of any and all indebtedness now due or hereafter to become due to the said “McGraw” from the said King Porter Co., et al for any goods which may be purchased, shipped, or ordered at any time in the future. It is understood and agreed that this guarantee shall be a continuing guarantee and shall remain valid and cover all purchases until ten days after receipt by the said “McGraw” of a written notice from the undersigned that this guarantee has terminated.
      The undersigned further consents to, and waives notice of any extension or extensions that may hereafter be granted by the said “McGraw” to the said King Porter Co., et al by the acceptance of notes or otherwise of the payment of indebtedness which is secured by this guarantee.
      This guarantee shall be considered and deemed to be in addition to any other guarantee of any other kind or character held by the said “McGraw”, or which it may hereafter secure, and shall not in any wise be affected thereby.
      It is understood and agreed that the execution of this guarantee by me (us) is notice to me (us) of this acceptance and no further notice of its acceptance is required. I (we) do hereby guarantee to the said “McGraw” the prompt payment of any and all indebtedness now due or hereafter to become due to the said “McGraw” from the said King Porter Co. for any accounts receivable of the said King Porter Co. against which “McGraw” has or will advance funds.

      . Count II of the complaint charged “that the defendants pledged fraudulent contracts to the plaintiff; that each and every one of said contracts were fraudulently misrepresented to the plaintiff to procure the respective sums set forth in the sworn itemized statement attached hereto . . .
      After hearing the evidence, the court below indicated a belief that fraud was not the basis of liability. The jury received an instruction on the need for clear and convincing proof to sustain a finding of fraud as well as another instruction, to apply if they found no fraud, on the need for proof by a preponderance of the evidence that the accounts involved were part of the installment financing scheme. When the jury later expressed confusion regarding what burden of proof to apply, the judge instructed them to disregard the allegation of fraud in Count II.
      The Porters have raised no complaint here regarding the jury instructions. Cryptic as they were, the instructions ultimately correctly guided the jury’s deliberations since the fraud theory of liability was not supported by the evidence. On this appeal we treat Count II as presenting a theory of liability identical to that of Count I.

      . On cross examination by counsel for the Kings, Royce examined the documents which corresponded with the first name on the list. He described the basic document as a sales contract and security agreement naming King-Porter Company, Inc. as the secured party, with a notation on its reverse side of assignment to EAC by King-Porter, Inc. He added that all the items in support of Count I were of a similar nature.

      . See In re Varney Wood Products, Inc., 327 F.Supp. 425, 427 (W.D.Va.1971), rev’d, 458 F.2d 435 (4th Cir. 1972); 1A Words and Phrases, “Accounts Receivable.”

      . Accounts receivable shall be deemed to include a right to sums due or to become due on open accounts or contracts. It excludes sums due on and rights represented by judgments, notes, bills of exchange, drafts, acceptances or other negotiable or non-negotiable instruments or agreements for the payment of money, the transfer of which is commonly made by endorsement on and delivery of the instrument or contract or insurance policies; also sums due under and rights represented by a chattel mortgage, bill of salejto secure debt, conditional sales contract, or other instrument reserving title to or creating a lien upon property; sums due or to become due from the United States of America or any department or agency thereof; and sums arising from public or private construction contracts for which the assignor has furnished a surety bond guaranteeing the performance of the contract or the payment of labor and material claims arising therefrom.
      Miss.Code Ann. § 243-01 (1942), repealed by Laws, 1966, ch. 316, Miss.Code Ann. § 75-10-102(l)(e) (1972), effective on and after March 31, 1968.

      . See In re Varney Wood Products, Inc., 458 F.2d 435 (4th Cir. 1972).

      . Examination of the Exhibit 5 documents reveals that the conditional sales contracts are standard Uniform Commercial Code security agreements by which King-Porter Co., Inc., retained a security interest in the transferred merchandise. The rental agreements provide for application of the rental fees against the purchase price if renter desired to purchase the item within 90 days; alternatively, a renter could purchase the merchandise for one dollar after a designated number of rental payments.

      . Miss.Code Ann. § 75-9-102(l)(a), (b) (1972); see Official Comment 2: “Commercial financing on the basis of accounts and chattel paper is often so conducted that the distinction between a security transfer and a sale is blurred, and a sale of such property is therefore covered by subsection (l)(b) whether intended for security or not. . .

      . In EAC’s brief on appeal appears a statement that “[t]here is no evidence that the appellee ever furnished any money to King-Porter Company, Inc., on any of its accounts receivable or any of the contracts that were pledged to the appellee as collateral security There were no monies ever advanced in any of the undertakings nor were any claimed to have been advanced. . EAC apparently sought to foster a theory that the chattel paper which is the subject of Counts I and II was accepted as collateral against the shipment by EAC of merchandise to the King-Porter companies, and that the debts would thus fall within the coverage of the second paragraph in the 1968 guaranty. However, this was not the theory of liability presented to the jury and is without support in the record.


author: GEE, Circuit Judge:

text:
    Jeanette B. FLOWERS, Plaintiff-Appellant, v. TURBINE SUPPORT DIVISION et al., Defendants-Appellees.
    No. 73-3903.
    United States Court of Appeals, Fifth Circuit.
    Feb. 12, 1975.
    Rehearing Denied March 27, 1975.

      Bobby J. Nelson, James M. Simons, Austin, Tex., for plaintiff-appellant.
    Doyle L. Coatney, John W. Davidson, San Antonio, Tex., for defendants-appel-lees.
    Before GEWIN, AINSWORTH and GEE, Circuit Judges.
   GEE, Circuit Judge:

On October 17, 1972, Appellant Flowers filed suit against Appellee Turbine Support Division Chromalloy American Corporation (Turbine) alleging that she had been discriminated against and eventually fired because of her sex, because of her association with minority groups at work, and in retaliation for her opposition to practices made unlawful by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (the Act). As the suit progressed, Flowers proved to be less than the ideal plaintiff; three times show-cause orders had to be issued to goad her into complying with pre-trial orders of the court. Each order was, however, eventually complied with. About two months before the date eventually set for trial, Flowers filed an application for permission to proceed in forma pauperis (IFP). Six days before trial an order was issued denying the motion. Appellant filed a notice of appeal from this order. She also made an oral motion for continuance. This motion was denied. Flowers then unsuccessfully sought emergency relief in the form of a continuance from this Court and the Supreme Court. Appellant appeared for trial on September 24, 1973, the date set, and again sought a continuance — this time in writing. When this request was denied she announced “not ready.” Thereupon, the trial court dismissed her case with prejudice for want of prosecution. F.R.C.P. 41(b).

We are now called upon to decide (1) whether the trial court abused its discretion in dismissing Flowers’ suit and (2) whether it erred in denying her application to proceed IFP.

Turbine has pressed upon us the novel proposition that Flowers announced “not ready” in order to force a dismissal. This she did, according .to Turbine, with the aim of disrupting the orderly procedure of the federal courts by forcing the issue of the earlier denial of her motion to proceed IFP — which it views as an interlocutory order — upon this Court without its first having been certified by the district court. Thus, Turbine accuses Flowers of purposely seeking dismissal to avoid 28 U.S.C. § 1292(b). As Turbine sees it, “There is only one issue in this case and that is whether parties to a lawsuit may circumvent the Federal Rules of Civil Procedure and appropriate Federal statutes to secure Interlocutory Appeal from the denial of [sic] her application to proceed in forma pauperis." The problem with Turbine’s framing of the issue and with the bulk of its argument is that denial of a motion to proceed IFP under 28 U.S.C. § 1915 is appealable, without reference to § 1292(b), as a final decision under 28 U.S.C. § 1291. Roberts v. United States District Court, 339 U.S. 844, 70 S.Ct. 954, 94 L.Ed. 1326 (1950); Kitchens v. Alderman, 376 F.2d 262 (5th Cir. 1967). Flowers was in the process of appealing this order in an orderly fashion when her case was dismissed.

Orders denying applications to proceed IFP are appealable as final decisions for reasons similar to those which prompted the Supreme Court to hold that the order in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) was appealable. An order denying IFP status finally decides an important issue which is collateral to the merits of the case. It is an order which is “too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen, supra, at 546, 69 S.Ct. at 1226. More importantly, it is an order the review of which cannot be deferred until the whole case is decided. Denial of IFP, if erroneous, tends to close the door of the courthouse to the true pauper, forcing him to forfeit his day in court. Such a person has little hope of successfully prosecuting his case to a traditional final judgment. It follows from this that a trial court judge acts at great risk of reversal when he puts a party who has appealed from an order denying him pauper status to trial in the interim. Should the party proceed to trial and lose, the decision on the merits must be reversed if the appellate court holds that IFP was erroneously denied and if the party’s chances to' prevail were prejudiced by the denial. If the party declines to proceed to trial and the court thereupon dismisses his suit for want of prosecution, a reversal of the denial of pauper status will mandate a reversal of the dismissal whenever it appears that denial of the status either prevented the party from proceeding to trial at all or seriously prejudiced his chances to win — unless, of course, there were sufficient, independent grounds for the dismissal.

We have concluded that the court below erred in denying pauper status to Ms. Flowers. Admittedly, a trial court has wide discretion in denying an application to proceed IFP under 28 U.S.C. § 1915. This is especially true, the rubric goes, in civil cases for damages, wherein the courts should grant the privilege sparingly. Weller v. Dickson, 314 F.2d 598 (9th Cir.), cert. denied, 375 U.S. 845, 84 S.Ct. 97, 11 L.Ed.2d 72 (1963). However, in denying such applications a court must not act arbitrarily. Nor may it deny the application on erroneous grounds. Trujillo v. United States, 492 F.2d 128 (5th Cir. 1974). In its order the district court stated that it was denying Flowers’ application for two reasons. The first wás that the application was not timely filed. The second was that Flowers’ lawyers, to whom the court found she had assigned an interest in her cause of action, made no showing that they were paupers. These were not permissible reasons for denying IFP.

There is no requirement under 28 U.S.C. § 1915 that an application to proceed IFP be filed at any particular time. The statute contemplates that a person not a pauper at the commencement of a suit may become one during or prior to its prosecution. In fact, since one may not legitimately make such an application until he becomes a pauper, his application may not be denied simply because he made an initial decision to attempt to pay his own way.

A lawyer who is working on a contingency fee basis is not required to certify that he is a pauper before his client may take advantage of 28 U.S.C. § 1915. Adkins v. E. I. Dupont de Nemours & Co., 335 U.S. 331, 69 S.Ct. 85, 93 L.Ed. 43 (1948). Assignment to one’s lawyers of an interest in a cause of action in conjunction with a contingency fee arrangement is merely security for payment of that fee and does not raise the problems which purchase of a pauper’s lawsuit by a wealthy person would. When the assignment is to the lawyer to secure his fee the rationale of Adkins controls, and pauper status may not be denied on the basis of the wealth of counsel. To rule otherwise would have the effect of creating a disincentive for lawyers to champion the causes of the poor.

The stated bases of the trial court’s denial of Ms. Flowers’ application to proceed IFP were erroneous, and that decision is reversed. We note that there is a question as to whether or not, under prior case law and the facts here, the trial court could correctly have dismissed Ms. Flowers’ application orí the basis that she was not a pauper. Although the issue has been briefed and argued, we do not pass upon it since we are convinced that the court below felt bound to deny Ms. Flowers’ application for the reasons that it gave and thus did not adequately consider the factual situation. This should be considered on remand if Ms. Flowers chooses to renew her application. Having reversed the denial of IFP, we must reverse the dismissal for want of prosecution unless the denial of pauper status neither prevented Flowers from proceeding to trial nor prejudiced her chances of prevailing or unless there was an adequate independent ground for the dismissal.

Flowers could have proceeded to trial as a nonpauper. However, she could have counted on only two witnesses — herself and her mother — voluntarily appearing on her behalf. The remainder of the 20-plus witnesses she believed were essential and the 45 she felt she needed would, she and her lawyer supposed, have to have been subpoenaed in order to insure their attendance. Since denial of pauper status denied her free subpoenas and since the lack of subpoena power made her chances of prevailing tenuous, we must hold that Ms. Flowers’ cause was prejudiced.

The remaining consideration's whether the trial court had sufficient ground, independent of Flowers’ announcement of “not ready” following the denial of IFP, to invoke the ultimate sanction of dismissal. We conclude that it did not. Flowers’ prior dilatory behavior, although reprehensible and undoubtedly frustrating to the court, does not create “a clear record of delay or contumacious conduct,” Durham v. Florida East Coast Railway, 385 F.2d 366 (5th Cir. 1967), of which the announcement of not ready was the culmination. Thus, dismissal was not warranted on the ground that Flowers had not pursued her cause of action in a diligent manner. The other reasons given by the trial court for dismissal were not independent of his denial of IFP status for they merely justified his refusal to grant a continuance, and the request for the continuance had been made necessary by .the denial of IFP.

Reversed and remanded.

      . Prior to instituting the suit Flowers had filed complaints with the Equal Employment Opportunities Commission. The District Director found reasonable cause to believe that Turbine had committed violations of the Act, but the Commission itself did not pursue the matter in court. Instead, on July 18, the District Director issued a right-to-sue letter to Appellant. Action, as required by the Act, was commenced within 90 days.

      . We note that this rule was developed primarily in the Ninth Circuit in a series of cases involving damage suits by prisoners against their keepers. It may be that the federal courts should not be so parsimonious in Title VII suits since Congress, apparently anticipating a special need, has specifically provided that a court may appoint an attorney in these cases and may “authorize the commencement of the action without the payment of fees, costs or security.” 42 U.S.C. § 2000e-5(f)(l).

      . We note that we are not faced here with a case in which the application and affidavit were filed only shortly before trial simply for the purpose of causing delay. Here the application and supporting affidavit were filed on July 30, 1973. A hearing on the motion was held on August 8. At this point the question was taken under advisement. Both filing of the application and the hearing took place prior to the date (August 20) on which a nonjury trial was set for September 24. The order denying the application was finally issued on September 18 — only six days before trial.

      . Once again, “Because of the manner in which we dispose of this case, we pretermit the question whether § 1915(a) limits judges’ discretion to instances of untruthfulness of the affidavit or lack of merit in the claim.” Trujillo, 492 F.2d at 129, fn. 3.

      . It is possible that the trial court as a condition of granting pauper status could have insisted that Flowers’ attempt to persuade her witnesses to appear without subpoena. Also, he might have made a demand that Flowers make some showing as to why she needed so many witnesses. It goes without saying that had there been proof that Flowers listed unnecessary witnesses for the purpose of making the prosecution of her suit appear to be more expensive than it would otherwise have been, the expense of the unnecessary witnesses would have to have been disregarded in any determination of pauper status.

      . Lesser sanctions than dismissal were available to punish this conduct.

      ; We note that at the time of its dismissal this case had been docketed for only eleven months.