author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jo Anna Newby CARAWAY, a/k/a Jo Newby and Daniel Elden Scales, Defendants-Appellants.
    No. 72-2198.
    United States Court of Appeals, Fifth Circuit.
    Aug. 3, 1973.

      Melvyn Kessler, Miami, Fla.16 (Court appointed) for Caraway.
    Sky E. Smith, Miami, Fla. (Court appointed) for Scales.
    Robert W. Rust, U. S. Atty., Lawrance B. Craig, II, Asst. U. S. Atty., Miami, Fla., Elliot L. Richardson, Acting Atty. Gen., Robert A. Patterson, Asst. Atty. Gen., U. S. Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and RIVES, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GOD-BOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.
   PER CURIAM:

It now appears that the indictment underlying the appeal in this matter was dismissed by the district court following reversal by a panel of this court, United States v. Caraway, 5 Cir., 1973, 474 F.2d 25, but prior to the issuance of the mandate of this court and prior to the sua sponte determination of the court to consider the appeal en banc. Based on these facts, the parties urge that the appeal is moot. We agree.

The judgments of conviction giving rise to the appeal as well as the panel opinion of this court, supra, are vacated. The indictment having been dismissed, it will be necessary to remand to the district court only for the purpose of setting aside the judgments of conviction on the ground of mootness. See United States v. Munsingwear, 1950, 340 U.S. 36, 39-40, 71 S.Ct. 104, 95 L.Ed. 36; Troy State University v. Dickey, 5 Cir., 1968, 402 F.2d 515, 516-517; Lebus Regional Director v. Seafarers’ Int’l Union, 5 Cir., 1968, 398 F.2d 281, 283, on the procedure to be followed by an appellate court in terminating a case by reason of mootness.

The judgments of conviction and the panel opinion are vacated; the cause is remanded with direction that the judgments of conviction be set aside for mootness.

RIVES, Circuit Judge, with whom WISDOM, GOLDBERG, and GOD-BOLD, Circuit Judges, join, dissenting:

With deference, I submit that careful consideration of the record facts in connection with well-settled rules of law refutes the holding of the en banc Court that this appeal is moot.

The original panel opinion entered January 15, 1973, directed that the judgments of conviction against Caraway and Scales should be reversed and that their cases should be remanded. Six-teen days later, on January 31, 1973, the district court attempted to dismiss the indictments on which the convictions were based. That was five days before the expiration of the twenty-one days usually allowed for the mandate to issue. Rule 41, F.R.A.P. To this good day the mandate has not issued.

On February 14, 1973, the panel amended its opinion but did not change its decision. Upon receipt of the amended opinion the District Clerk advised the Clerk of this Court of the attempted dismissal of the indictments. On April 4, 1973, the following order was entered in this cause:

“BY THE COURT:
“A majority of the Judges in active service, on the Court’s own motion, having determined to have this case reheard en banc,
“IT IS ORDERED that this cause shall be reheard by the Court en banc on briefs without oral argument. The Clerk will specify a briefing schedule for the filing of supplemental briefs.”

The Clerk mailed to all counsel of record a letter specifying a briefing schedule in this appeal and in No. 72-1352, United States v. Sepe, 5 Cir., 474 F.2d 784, which directed counsel as follows:

“The principle question on which the supplemental briefs are desired in both of the cases, is the validity of •the procedure allowing nolle plea with expectation of an appeal, and whether with or without agreement of the District Court the Court of Appeals, has or can take jurisdiction of such an appeal.
“In addition, in the Caraway case, the Court also desires specific supplemental briefs on the possible mootness of that case and the appropriate order, if any, to be entered in view of the dismissal of the indictment by the District Court. The parties are specifically requested to agree on the mutually accepted statement of facts with respect to the mootness problem.”

On May 31, 1973, the United States filed a brief limited to the question of mootness. The “Argument” section is truly brief and can conveniently be quoted:

“While there is some support for the proposition that this Court can recall its mandate to prevent injustice, no support has been found for the proposition that this can be done following dismissal of the cause of action.

The courts have long recognized that an appellate court can recall its mandate during the term of court in which it is issued, Bronson v. Schulten, 104 U.S. 410, 415 [26 L.Ed. 797] ; Sun Oil Company v. Burford, 130 F.2d 10, 13 (C.A. 5) reversed on other grounds, 319 U.S. 315 [63 S.Ct. 1098, 87 L.Ed. 1424]; Meredith v. Fair, 306 F.2d 374, 375 (C.A. 5); Gradsky v. United States, 376 F.2d 993, 995 (C.A. 5); Greater Boston Television Corporation v. F.C.C. [149 U.S.App.D.C. 322], 463 F.2d 268, 276-279 (C.A.D.C.); See generally Rules 1(b)2, 26(b) and 41(b), Fed.R.App.P. These instances, however, entail situations where a party is suffering continuing disabilities from enforcement of the mandate- such as incarceration, monetary penalty, injunctive prohibition, or subjection to administrative regulation. Where, as here, the parties are subject to no liabilities as a consequence of enforcement of the mandate the case does not appear to possess the requisite adversary quality to constitute a case or controversy cognizable by the appellate court, and consequently there is, ‘no longer a subject matter on which the judgment of [the] Court could operate,’ St. Pierre v. United States, 319 U.S. 41, 42 [63 S.Ct. 910, 87 L.Ed. 1199]. Although the Court later modified the specific holding in St. Pierre, it continued to recognize that, ‘a criminal case is moot . . . if it is shown that there is no possibility that any collateral legal consequences will be imposed,’ Sibron v. New York, 392 U.S. 40, 57 [88 S.Ct. 1889, 20 L.Ed.2d 917]. Since no further action is possible on the dismissed charges, it is clear that appellants can suffer no legal consequences thereon.

Instead of filing a brief, the attorneys for the defendants-appellants mailed a letter to the Chief Deputy Clerk, dated May 31, 1973, the body of which reads:

“This is to advise you that undersigned counsel concurs with the conclusion reached by the United States Attorney, Robert B. Patterson in his supplemental brief on mootness in the above styled cause. Therefore, it is the opinion of the undersigned counsel that the above styled cause is moot as to further consideration by this Honorable Court.”

I take no issue with the legal principles stated in the government’s “Argument.” To the contrary, I think those principles sound when applied to a case in which the mandate has been issued by the appellate court. They simply do not apply to the present case in which no mandate has issued. Peculiarly, the principle last stated does become applicable once the en banc per curiam order in the present case has been entered. Once the en banc Court has held that this appeal is moot, it has no further jurisdiction except for the limited purposes recognized in the cases cited in the en banc order. It does not have jurisdiction to enter what amounts to a decision on the merits of the present appeal by setting aside the judgments of conviction, vacating the panel decision, and —to make doubly certain — remanding the cause with direction that the district court also set aside the judgments of conviction.

Be that as it may, at the risk of being tedious, I have stated in some detail the present status of this appeal, because I submit that the record facts clearly demonstrate that the district court had no jurisdiction to dismiss the indictments on which the convictions were based, and hence that this appeal is not moot.

So far as I am aware, the rule in all courts, both state and federal, is that an appeal, duly perfected, divests the trial court of jurisdiction and transfers jurisdiction to the appellate court where it remains until the appellate proceeding terminates and the trial court regains jurisdiction. As said by Chief Justice Hughes for a unanimous Court in Ber-man v. United States, 1937, 302 U.S. 211, 214, 58 S.Ct. 164, 166, 82 L.Ed. 204:

“As the first sentence was a final judgment and appeal therefrom was properly taken, the District Court was without jurisdiction during the pen-dency of that appeal to modify its judgment by resentencing the prisoner. Draper v. Davis, 102 U.S. 370, 371, [26 L.Ed. 121] ; Keyser v. Farr, 105 U.S. 265, 266, 26 L.Ed. 1025; Spi-rou v. United States [2 Cir.], 24 F.2d 796, 797; United States v. Radice [2 Cir.], 40 F.2d 445, 446; United States v. Habib [2 Cir.], 72 F.2d 271.”

See also United States v. Chapman, 3 Cir. 1971, 448 F.2d 1381, 1388 n. 11; United States v. Mack, 1972, 151 U.S. App.D.C. 162, 466 F.2d 333, 340; United States v. Ellenbogen, 2 Cir. 1968, 390 F. 2d 537, 542-543; United States v. Grabina, 2 Cir. 1962, 309 F.2d 783, 785; Dickinson v. Rinke, 2 Cir. 1943, 132 F.2d 884, 885; Rogers v. Consolidated Rock Products Co., 9 Cir. 1940, 114 F.2d 108, 111.

Equally universal is the rule that the time at which jurisdiction revests in the trial court is the date of the issuance of the appellate court’s mandate. As said by this Court: “* * * a Court of Appeals retains jurisdiction, and none is relinquished to the district court, until a mandate or judgment is issued.” Gill v. C.I.R., 1962, 306 F.2d 902, 906.

Clearly, I submit this appeal should not be dismissed as moot. True, insofar as the parties are concerned the result of the per curiam order of the en banc court is the same as that envisioned by the panel’s opinion. That result could properly have been accomplished if the order of the district court had been entered after the issuance of a mandate. Nonetheless, the question of jurisdiction as between the trial court and the appellate court is a matter of extreme importance. The end does not justify the means.

An incidental effect of the en banc court order, which I emphasize was not intended, is to exclude me from participation in decision of the question intended to be considered en banc. That effect circumvents the provision of 28 U.S.C. § 46(c) that, “A circuit judge of the circuit who has retired from regular active service shall also be competent to sit as a judge of the court in banc in the rehearing of a case or controversy if he sat in the court or division at the original hearing thereof.” Much as it might relieve me, I cannot tamely submit to that effect both because temperamentally I am not so inclined and because of the well-established rule that, while it is a Judge’s duty to refuse to sit when he is disqualified, “ * * * it is equally his duty to sit when there is no valid reason for recusation.” Edwards v. United States, 5 Cir. 1964, 334 F.2d 360, 362 n. 2.

Let us clearly understand what the en bane majority is holding. Its holding is that the district court’s attempted dismissal of the indictments following the original panel opinion but prior to issuance of the mandate operates to moot the appeal. The en banc majority holds that, though no mandate has issued, the district court has jurisdiction to render the appeal moot by dismissing the indictments. Meanwhile, this Court is-staying its mandate in order to determine the validity of the procedure by which it originally took jurisdiction of the appeal. Thus the district court can deprive this Court of jurisdiction to consider and decide the case en banc.

Since January 15, 1973, when the district court attempted to dismiss the indictments, the procedural status of the case has radically changed. This Court has, as of April 4, 1973, “ORDERED that this cause shall be reheard by the Court en banc on briefs without oral argument.” The case has not yet been so reheard. Assuming that it is reheard, this Court has the alternative of holding for or against the validity of the procedure allowing an appeal from a conviction based on a nolle plea entered with reservation of the right to appeal, with the permission of the district court, later approved by the Court of Appeals, or of holding that the Court of Appeals acquired no jurisdiction to reverse the judgments of conviction based on nolle pleas. If the en banc Court should reach the latter determination, the original judgments of conviction would remain intact and not subject to review.

In short, the government moved in the district court to dismiss the indictments against Caraway and Scales under the pressure of the opinion and decision of the original panel. It mistakenly assumed that the mandate had issued and that the district court had re-acquired jurisdiction of the case. Naturally the defendants consented. The parties being agreed, the district court failed to appreciate the fact that the mandate had not issued. Now, after the government discovers that the en banc Court may set aside the reversal and may leave the judgments of conviction intact and no longer subject to review, it would have no apparent reason to agree with the defendants that their judgments of conviction be set aside for mootness. Without more appearing, neither the district court nor this Court would approve any such agreement. The record facts considered in the light of well-settled rules of law conclusively demonstrate that this appeal is not moot.

I therefore respectfully dissent.

      . The opinion as amended February 14, 1973 is published in 474 F.2d 25-32.

      . By memorandum dated January 23, 1973, the Chief Judge directed the Clerk as follows:
      “Subject: No. 72-2198 — U. S. v. Caraway [Jan. 15, 1973, RTR, HT, ILG]
      No. 72-1352 — U. S. v. Sepe [Jan. 4, 1973, JPC, ILG, JCG]
      “As I have written the two panels of some concerns I have about these two opinions, will you please hold up the issuance of the mandate until you receive further instructions from the respective panels.”

      “1 Moreover, since the government was the party that moved the dismissal, the government could not appeal the granting of that motion.”

      . In that case the opinion of the Court of Appeals was issued on July 18, 1958, but the mandate of the court was not issued until September 29, 1958. The court held that the date of the mandate was the earliest date at which there was a determination of error in computing income tax and, hence, that notice of deficiency mailed on September 28, 1959 was within the one-year statutory period and was timely. Thus the quoted language from the Grill opinion was not dictum but was the actual holding of the court. To like effect, see Lim Kwock Soon v. Brownell, 5 Cir. 1966, 369 F.2d 808 ; Ferrell v. Trailmobile, Inc., 5 Cir. 1955, 223 F.2d 697; Krock v. Electric Motor & Repair Co., 1 Cir. 1964, 339 F.2d 73, 74; Butcher & Sherrerd v. Welsh, 3 Cir. 1953, 206 F. 2d 259, 262, cert. denied 346 U.S. 925, 74 S.Ct. 312, 98 L.Ed. 418; Walsh Const. Co. v. United States Guarantee Co., 8 Cir. 1935, 76 F.2d 240, 243; Abrams v. Scott, 357 Mo. 937, 211 S.W.2d 718, 721; Turner v. Bragg, 114 Vt. 334, 44 A.2d 548, 549; Horton v. State, 63 Neb. 34, S8 N.W. 146, 147; Egbert v. St. Louis & S.F. R. Co., 50 Okl. 623, 151 P. 228, 230; State v. Casey, 108 Or. 386, 217 P. 632, 633; 3 Barron & Holtzoff (Wright) (Rules ed.) § 1332, pp. 435-438; 5B C.J.S. Appeal and Error § 1959, p. 530 n. 12; 36 C.J.S. Federal Courts § 301(32), p. 1371 n. 1.

      . To like effect, see Laird v. Tatum, 1972, 409 U.S. 824, 837, 93 S.Ct. 7, 34 L.Ed.2d 50; Walker v. Bishop, 8 Cir. 1969, 408 F.2d 1378, 1382; Wolfson v. Palmieri, 2 Cir. 1968, 396 F.2d 121, 124, et seq.; United States v. Hoffa, 6 Cir. 1967, 382 F.2d 856, 861, cert. denied 390 U.S. 924, 88 S.Ct. 854, 19 L.Ed.2d 984; Tynan v. United States, 1967, 126 U.S.App.D.C. 206, 376 F.2d 761, 764; Simmons v. United States, 3 Cir. 1962, 302 F.2d 71, 75; In re Union Leader Corp., 1 Cir. 1961, 292 F.2d 381, 391; Tucker v. Kerner, 7 Cir. 1950, 186 F.2d 79, 85.


source: Caselaw Access Project

author: CONTI, District Judge:

license: Public Domain

text:
    Donald C. CASS, Appellee, v. UNITED STATES of America, Appellant. Francis A. ADAMS et al., Appellees, v. SECRETARY OF THE NAVY et al., Appellants.
    Nos. 72-2633, 72-3028—72-3030.
    United States Court of Appeals, Ninth Circuit.
    Aug. 1, 1973.
    Certiorari Granted Jan. 7, 1974.
    See 94 S.Ct. 864.
    Anthony J. Steinmeyer (argued), Harlington Wood, Jr., Asst. Atty. Gen., Otis L. Packwood, U. S. Atty., Walter H. Fleischer, Robert M. Feinson, Dept, of Justice, Washington, D.C., for appellant United States.
    Charles A. Smith (argued), of Smith & Harper, Helena, Mont., for appellee Cass.

      Before MERRILL and CHOY, Circuit Judges, and CONTI, District Judge.

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

   CONTI, District Judge:

This ease involves the interpretation of 10 U.S.C. 687(a), which permits servicemen to receive readjustment payments upon release from the armed forces. Two issues are involved in this appeal: (1) Whether the “rounding provision” of subparagraph (2) of 10 U.S. C. 687 (a) applies to reduce the eligibility requirement for readjustment pay; and (2) whether the preliminary injunction issued by the District Court in the Adams-Steneman-Youngquist cases would moot this appeal because they would now qualify under any interpretation of the statute.

These actions were instituted by reserve officers on active duty in the Armed Forces. Each had served more than four and a half years and less than five years. Cass was honorably and involuntarily discharged from the Army. Adams, Steneman and Youngquist, captains in the Marine Corps, were ordered to be involuntarily released from active duty under honorable circumstances, but obtained a preliminary injunction which prevented their release until after they had served more than five years. The preliminary injunction was then dissolved while their cases were still pending. In all the cases the trial courts found in favor of the plaintiffs.

With regard to the substantive issue of whether or not 10 U.S.C. 687(a) (2) was properly interpreted by the district court, it is the opinion of this court that it was not.

The relevant statute provides in pertinent part:

“ . . . a member of a reserve component . . . who is released from active duty involuntarily . who has completed, immediately before release, at least five years of continuous active duty, is entitled to a readjustment payment computed by multiplying his years of active service ... by two months’ basic pay of the grade in which he is serving at the time of his release For the purposes of this subsection-—
(1) a period of active duty is continuous if it is not interrupted by a break in service of more than 30 days;
(2) a part of a year that is six months or more is counted as a whole year, and a part of a year that is less than six months is disregarded . . . ”

The district courts [Cass v. U. S., is reported at 344 F.Supp. 550 (D.Mont. 1972).] ruled in favor of plaintiffs, following the rationale of Schmid v. United States, 436 F.2d 987, 193 Ct.Cl. 780, cert. denied 404 U.S. 951, 92 S.Ct. 283, 30 L.Ed.2d 268 (1971). In Schmid the court of claims decided that the rounding provision of 687(a) (2) that “a part of a year that is six months or more is counted as a whole year” applied not only for the purposes of calculating the amount of the readjustment pay owed servicemen eligible for payments, but also in determining whether the five year eligibility requirement was met. Thus, if appellees’ position is correct, their time in service (more than four and a half years) was properly rounded off to five years in the district courts and they were thus eligible and entitled to readjustment payments under 10 U. S.C. 687(a). We disagree and reverse.

The concept of readjustment pay was originally made into law in 1956. That Act of July 9, 1956, 70 Stat. 517, 50 U.S.C. § 1016(a) (1958 ed.) provided in pertinent part:

“A member of a reserve component who is involuntarily released from active duty after the enactment of this section and after having completed immediately prior to such release at least five years of continuous actiye duty, except for [a break] in service of not more than thirty days . is entitled to a lump-sum readjustment payment computed on the basis of one-half of one month’s basic pay in the grade in which he is serving at the time of release from active duty for each year of active service ending at the close of the eighteenth year. For the purpose of computing the amount of readjustment payment (1) a part of a year that is six months or more is counted as a whole year . ” (Emphasis added)

Thus, that Act clearly provided that the rounding provision applied only to the determination of the amount of payment, and not to the eligibility requirement. In 1962, the statute was codified into its present form.

The present form of the statute does not explicitly limit the rounding provisions of computation of the amount of the benefits. However, the clause of the statute which sets the minimum eligibility at five years, appears to be clear on its face and not subject to the interpretation given it by the court in Schmid.

However, even if the statute is arguably ambiguous, the result is unchanged. The rounding provisions conflict with the clear statement that five years is required for eligibility, if the rounding provision applies to eligibility. The use of the rounding provision would serve no useful purpose in determining eligibility. Eligibility is defined in terms of a fixed duration under the statute. The rounding provision could only be applicable in a situation in which a serviceman had served between four and a half and five years. There is no apparent reason why Congress would choose such a circuitous method to determine eligibility.

An examination of the legislative history behind the 1956 and 1962 versions of the statute supports the interpretation argued by appellant. The senate hearings on the 1956 bill specifically considered and adopted the language which limited the rounding provision to the computation of the amount of the payment. 1956-2 U.S.Code Cong. & Admin.News, pp. 3068, 3070.

In 1962, Congress codified the readjustment payment laws. In the process the language that the rounding provision was limited to the computation of the amount of readjustment pay was deleted. However, the senate report on the new law stated that the bill “is not intended to make any substantive change in the existing law”. Senate Report No. 1876, 87th Cong.2d Sess., 1962 U.S.Code Cong. & Admin.News, p. 2456. It would be inconsistent with the above declaration for this court to construe that Congress intended to broaden the eligibility requirements. Therefore, we reverse on the substantive issue of interpretation of 10 U.S.C. 687(a).

With regard to the arguments of Adams, Steneman and Youngquist that the preliminary injunction issued by the district court in their cases served to make them eligible for readjustment benefits under any interpretation of the statute, we disagree.

The case of Paul v. Seamens, 468 F.2d 361 (1st Cir. 1972), held that a preliminary injunction designed to preserve the status quo, cannot count toward retirement benefits. In the case at bar, we have decided for appellant, and therefore the injunction in the district court was improperly issued, and cannot be relied upon to support eligibility for readjustment benefits.

The injunction created no additional rights in appellees that they did not have under the statute in question. Any other decision would allow appellants to “bootstrap” themselves into eligibility.

Therefore, the decisions of the district court are reversed.


author: MOORE, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Luis Arturo GONZALEZ, Appellant.
    No. 1056, Docket 73-1422.
    United States Court of Appeals, Second Circuit.
    Argued July 17, 1973.
    Decided Aug. 9, 1973.
    C. Joseph Hallinan, Jr., New York City (Diamond, Hallinan & Polacek, New York City, of counsel), for appellant.
    Bancroft Littlefield, Jr., Asst. U. S. Atty., New York City (Paul J. Curran, U. S. Atty. for the S. D. of New York, New York City, John D. Gordan, III, Asst. U. S. Atty., of counsel), for appel-lee.
    Before MOORE and OAKES, Circuit Judges and GURFEIN, District Judge.

       Hon. Murray I. Gurfein, United States District Judge for the Southern District of New York, sitting by designation.

   MOORE, Circuit Judge:

Appellant, using the name Luis Arturo Gonzalez (his real name, as subsequently admitted, is Dario Jose Mejia Tobon), appeals from a judgment of conviction entered after a jury trial in the United States District Court for the Southern District of New York. The one-count indictment charged appellant with the crime of possessing with intent to distribute 972 grams of cocaine hydrochloride (cocaine) in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b) (i) (A).

Two errors are asserted on appeal: (1) that an allegedly illegal search and seizure without a warrant was conducted on his suitcase containing the cocaine; and (2) the trial court allegedly made improper remarks to a juror in the process of jury selection. There being no merit to either contention, we affirm.

No issue of any material fact is presented.

Appellant, on September 13, 1972, purchased a round-trip airplane ticket from Barranquilla, Colombia, to New York City. On September 17, 1972, he boarded Pan American Flight # 434 departing Barranquilla and scheduled for Kingston, Jamaica, and Miami, Florida. Upon arriving at Miami he was to transfer to Flight # 504 to New York. At Barranquilla appellant checked his suitcase to New York. At Kingston appellant transferred instead to Flight # 222 for New York, leaving his suitcase bound for Miami on Flight #434. Since Miami was the first port of entry for the suitcase, it had to be examined by Customs agents. During that examination, they discovered cocaine concealed' in the soles of shoes and slippers.

On arrival in New York, appellant, seeking to retrieve his suitcase, called Pan Am to inquire about it. In the meantime, Miami Customs officials had called New York Customs officials to arrange a “controlled delivery” of the suitcase so that the cocaine smuggler might be apprehended.

Upon the arrival of the suitcase at Kennedy International Airport, Customs agents found no evidence of ownership contained therein. In order to remove the bulk of the cocaine, the Customs agents had to tear apart the shoes and slippers. A small quantity of cocaine was left inside a shoe. The torn shoes and slippers were thereupon replaced in the suitcase.

On the morning of September 19, 1972, a Pan Am representative telephoned appellant, at the number provided by the latter, advising him that his suitcase would be delivered to him at the hotel at which appellant had said he was staying. A Customs agent, posing as a Pan Am delivery man, together with another agent, took the suitcase to appellant’s fifth floor hotel room, knocked, received no response, and returned to the lobby. Appellant was in the lobby. He identified the suitcase, produced his matching claim check, and signed a lost luggage receipt. Various agents then followed appellant, who went up to the fifth floor, entered his room, and closed the door. Some ten seconds later, the agents knocked on the door, appellant opened it, and the agents entered and arrested him. The suitcase was already opened and lying on the bed at the time of their entry. .A search attendant to the arrest produced a key to the suitcase, a Colombian passport in the name of Luis Arturo Gonzalez (appellant’s pretended name) and a part of the round-trip airplane ticket.

A subsequent chemical analysis of the cocaine showed it to be 97.5 percent pure. Prior to appellant’s first trial before Judge Tenney, a motion to suppress as evidence the suitcase and its contents was denied.

Appellant’s argument that there should have been a search warrant for the seizure of the suitcase and its contents is without any legal foundation. Inspection of -luggage at ports of entry by Customs agents requires no search warrant, United States v. Ortega, 471 F.2d 1350, 1360 (2d Cir. 1972), cert. denied 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973). The presence of the cocaine was revealed during the Customs search. For all practical purposes, the suitcase was then seized; Customs certainly would not have let the suitcase escape its custody knowing its contents.

The next step in proper police procedure was for the Cu'stoms agents to try and identify the owner of the suitcase and to endeavor to ascertain what confederates, if any, he might have. Arrest in the hotel lobby would have been premature. Where was appellant taking the suitcase, to what room, and who might be present in that room? These eventualities were still unknown to the agents. However, when the agents had identified the room which appellant had entered, and the door had been closed, they had to act immediately. As soon as the case would be opened (as it was in a few brief seconds), appellant would see the torn shoes and could easily attempt to dispose of the incriminating evidence. The seizure of the suitcase and partial search of appellant’s hotel room were incident to the arrest. Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

To say that the agents should have obtained a search warrant to enter the hotel room is to ignore the realities of the situation. As already noted, no search warrant was needed in Miami, when the suitcase was actually seized. Not until appellant revealed himself and his whereabouts by telephone in New York did the agents have any clue as to the identity of the owner of the suitcase. They did not know, even when the suitcase was delivered, where appellant might go or what he would do with it. In short, there was no information they could have given, if they had applied for a warrant, which was then known to them with reasonable certainty. The scene was shifting rapidly. The agents’ duty was to follow appellant and the suitcase — not to leave him for a few hours free behind closed doors to dispose of the cocaine while a warrant was being sought.

As to the juror point of error raised by appellant, the jury system calls for fair and impartial jurors who are to hear both civil and criminal cases, who are to decide issues of fact and, in theory at least, who are to follow the court’s instructions with respect to the applicable law. When juror number 9 questioned her own qualifications in stating that “I don’t know if I can honestly send a man to jail,” she was, in effect, saying that she could not meet the standards of a fair and impartial juror. Under these circumstances, she would have been disqualified not only in this case but in any other criminal case as well. The trial court’s action in suggesting that her name be stricken from the jury roll was merely to avoid future repetition once her views had been so definitely expressed.

Appellant argues that since this colloquy occurred in the presence of the entire jury panel, it tended “to terrify the remaining prospective jurors and make fair inquiry of them impossible.” (Br. at 10). There is nothing in the record to suggest that the jurors ultimately selected failed to meet the jury standards and were unable to reach a fair and unbiased verdict. Nor is there any suggestion that counsel for government and defense were not satisfied with the jurors. In any event, the trial court’s remarks do not constitute reversible error. Compare United States v. Nazzaro, 472 F.2d 302 (2d Cir. 1973) and United States v. Guglielmini, 384 F.2d 602 (2d Cir. 1967) with the facts presented here.

Judgment affirmed.

      . Appellant was sentenced to a term of imprisonment of ten years.

      . A related issue was raised on oral argument, namely, whether an arrest warrant was required under the facts presented since there was ample time to obtain one after appellant had contacted Pan American in New York and prior to his arrest. A nighttime warrantless arrest in a man’s home, when there is ample time to obtain a warrant, may very well be unconstitutional. United States v. Mapp, 476 F.2d 67, 73-74 (2d Cir. 1973). See also, Coolidge v. New Hampshire, 403 U.S. 443, 480 (Stewart, J.), 492, 91 S.Ct. 2022, 29 L.Ed.2d 564 (Harlan, J., concurring) (1971) ; Jones v. United States, 357 U.S. 493, 499-500, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958). We believe, however, that the arrest here is governed by the general rule that “a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony * * Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 286, 69 L.Ed. 543 (1925). See also, Coolidge v. New Hampshire, supra, 403 U.S. at 511 n. 1, 91 S.Ct. 2022 (White, J. concurring and dissenting) ; Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948).
      The Supreme Court in Coolidge and Jones was concerned with the arrest of a person in his own home and at a time (during the night) when he could expect privacy. An arrest at such a time is especially startling, upsetting, and chilling and, therefore, it must be authorized by a warrant unless it falls into one of the special judicial exceptions. Cf. Coolidge v. New Hampshire, supra, 403 U.S. at 478, 91 S.Ct. 2022. Here, however, appellant was arrested during the day in a hotel room to which lie liad just gone. He was in the process of committing a felony, with possession of contraband, and he easily could have disposed of that contraband. The arrest here accordingly does not fall into that category of cases discussed in Coolidge and Jones where “a warrantless nighttime entry for the purpose of arresting a person in his bed” is made. Coolidge v. New Hampshire, 403 U.S. at 480, 481, 91 S.Ct. at 2045.


author: GEWIN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joe D. ROBERTS, Defendant-Appellant.
    No. 72-2463.
    United States Court of Appeals, Fifth Circuit.
    Aug. 9, 1973.
    Rehearing Denied Sept. 5, 1973.
    Craig R. Wilson, West Palm Beach, Fla., for defendant-appellant.

      Robert W. Rust, U. S. Atty., Charles Farrar, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before GEWIN, GOLDBERG and DYER, Circuit Judges.
   GEWIN, Circuit Judge:

After a joint trial before a jury appellant Joe D. Roberts was convicted on two counts of possessing United States Treasury checks stolen from the mails, knowing them to be stolen, two counts of forging the checks, and two counts of uttering the checks, knowing the endorsements to be forged. 2On appeal Roberts makes numerous contentions none of which entitles him to relief. Accordingly the judgment of conviction entered by the district court is affirmed.

Of primary concern to the court in this case is appellant’s assertion that the trial court committed error of constitutional proportions when it instructed the jury that it is permissible to infer guilty knowledge from the unexplained possession of recently stolen property. Although this jury instruction had been approved by this court in many of our prior decisions, it is clearly arguable that our decision in United States v. Cameron somewhat undermined this line of authority and left the status of the unexplained possession instruction subject to doubt. We held that in the circumstances present in Cameron the unexplained possession instruction impermissibly prejudiced the rights of the defendant in two respects: “(1) it permitted the jury to infer the fact of knowledge, one element of the offense, from the fact of possession, the other element of the offense; and (2) it improperly infringed the appellant’s privilege against compulsory self-inerimination under the Fifth Amendment to the United States Constitution.”

Consideration of the applicability of Cameron to the case now before us has been rendered unnecessary, however, by the Supreme Court’s recent decision in Barnes v. United States. **As in our case the petitioner in Barnes had been convicted on two counts of possessing checks stolen from the mails after the unexplained possession instruction had been given to the jury. There was little evidence against the petitioner other than the fact of possession and the absence of any plausible explanation for such possession. Petitioner challenged the instruction on the same constitutional grounds that led us to disapprove it in Cameron.

The Supreme Court rejected this court’s rationale and sustained the use of the challenged instruction. It held that once evidence of possession of recently stolen property is produced and is left inadequately explained, such evidence is sufficient to enable the jury to find beyond a reasonable doubt that the possessor knew the property to be stolen. Since the inference satisfies the reasonable doubt standard, it fully satisfies the requirements of due process. Moreover, the Court ruled that the unexplained possession instruction does not violate the constitutional privilege against self-incrimination. While recognizing that the use of the inference, just like the introduction of evidence against a defendant, tends to increase the pressure on him to testify, the Court nevertheless reasoned that “The mere massing of evidence against a defendant cannot be regarded as a violation of his privilege against self-incrimination.”

The teaching of Barnes, then, is that the use of the unexplained possession instruction fully comports with all constitutional guarantees accorded a defendant caught in the grips of the criminal justice system. Anything we said to the contrary in Cameron has been implicitly overruled. In this case there was strong evidence that Roberts had been in possession of the stolen checks in question, and no explanation for his possession was offered. In addition there was other incriminating evidence. In these circumstances it was entirely proper for the trial court to instruct the jury as to the inference which may be drawn from unexplained possession of recently stolen property.

The remaining contentions made by appellant Roberts are equally unavailing. Roberts argues that the trial court erred in admitting into evidence the extrajudicial confession of his codefendant Shirley Foster. He takes the position that certain admissions contained in the confession were highly prejudicial to him insofar as they referred to stolen checks not in question in his case and that the introduction of the extrajudicial confession denied him his sixth amendment confrontation rights. But these arguments overlook the fact that Foster’s confession appeared to absolve Roberts of guilt in this matter. Since it did not implicate him, its admission into evidence could not possibly have prejudiced him. This court has held that when a codefendant’s extrajudicial admissions do not implicate the defendant, receipt of such admissions into evidence does not violate his right to confrontation. It follows that the trial court did not err when it admitted Foster’s confession into evidence.

Roberts contends that the jury instructions as to what constitutes aiding and abetting were grossly inadequate. We have examined the court’s charge and are satisfied that it sufficiently informed the jury of the necessity of finding both a specific criminal intent and active participation in the crime on the defendant’s part before convicting him of aiding and abetting. We also note that appellant neither objected to these instructions nor offered any better or different instructions.

Finally Roberts argues that the evidence presented by the government is insufficient to support a guilty verdict on the six counts in question. Our painstaking review of the record forces us to disagree. Appellant’s fingerprints were found on both of the stolen checks for the possession of which he was convicted, and the testimony of his codefendant’s younger sister strongly indicated that he knew the checks were stolen and that he actively participated in the forging and uttering of them. In short there was sufficient evidence to support Robert’s conviction on all counts.

We have considered all of the contentions made by appellant and found them to be without merit. Roberts received a fair trial and was found guilty. The judgment of the district court is affirmed.

Affirmed.

      . The co-defendant Shirley Foster, who was tried with Roberts was convicted under certain counts of the indictment, but she is not involved in this appeal.

      . See, e. g., United States v. Robertson, 460 F.2d 1250 (5th Cir. 1972). See also Hale v. United States, 410 F.2d 147 (5th Cir. 1969), cert. denied 396 U.S. 902, 90 S.Ct. 216, 24 L.Ed.2d 179 (1970) ; Welch v. United States, 386 F.2d 189 (5th Cir. 1967) ; and Broom v. United States, 342 F.2d 419 (5th Cir. 1965).

      . 460 F.2d 1394 (5th Cir. 1972).

      . Id. at 1399.

      . 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). Our decision in this case was withheld pending the Supreme Court’s disposition of the same issue in United States v. Barnes which was under consideration at the time of oral argument.

      . Id. at 847, 93 S.Ct at 2363.

      . White v. United States, 415 F.2d 292 (5th Cir.), cert. denied 397 Ü.S. 993, 90 S.Ct. 1128, 25 L.Ed.2d 400 (1969). See also United States v. Lipowitz, 407 F.2d 597, 601-603 (3d Cir. 1969) ; Wapnick v. United States, 406 F.2d 741, 742 (2d Cir. 1968) ; and United States v. Levinson, 405 F.2d 971, 987-988 (6tli Cir. 1968).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Preston Lavern HOWARD, Defendant-Appellant.
    No, 72-2339.
    United States Court of Appeals, Fifth Circuit.
    Aug. 13, 1973.
    Certiorari Denied Dec. 17, 1973.
    See 94 S.Ct. 850.
    A. L. Vickers, Dallas, Tex. (Court Appointed), for defendant-appellant.
    Eldon B. Mahon, U. S. Atty., W. E. Smith, Asst. U. S. Atty., Ft. Worth, Tex., William F. Sanderson, Jr., Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.
    Before GEWIN, GOLDBERG and DYER, Circuit Judges.
   PER CURIAM:

Appellant Preston Lavern Howard was convicted by a jury on one count of possessing goods stolen from interstate commerce; knowing them to be stolen, in violation of 18 U.S.C. § 659. On appeal he contends that the trial court committed the following errors: (1) admitting evidence which was procured by an unconstitutional search and seizure; (2) instructing the jury on the inference to be drawn from the unexplained possession of recently stolen property; (3) improperly excluding as hearsay certain testimony bearing on the question of defendant’s knowledge that the property in his possession was stolen; and finally (4) that the evidence presented by the government was insufficient to support a verdict of guilty. We affirm.

Our primary concern in this case is appellant’s assertion that the unexplained possession instruction given by the trial court is unconstitutional. This assertion is strongly supported by our decision in United States v. Cameron, 460 F.2d 1394 (5th Cir. 1972) upon which appellant relies. In the circumstances of that case we held the unexplained possession instruction improper because: “(1) it permitted the jury to infer the fact of knowledge, one element of the offense, from the fact of possession, the other element of the offense; and (2) it improperly infringed the appellant’s privilege against compulsory self-incrimination under the Fifth Amendment to the United States Constitution.” 460 F.2d at 1399.

In its recent opinion in Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973) the Supreme Court emphatically rejected a challenge to the unexplained possession instruction on the same constitutional grounds that led us to disapprove it in Cameron. That decision clearly and unequivocally teaches that the instruction violates neither the requirements of due process nor the privilege against self-incrimination. Use of the instruction was fully approved once evidence of possession of recently stolen property is produced and is left inadequately explained.

In light of Barnes we are bound to join the Court in registering our full approval of the use of the unexplained possession instruction. Anything we said to the contrary in Cameron has been implicitly overruled. See United States v. Roberts, 483 F.2d 226 (5th Cir. 1973). We conclude that in this ease it was entirely proper for the trial court to instruct the jury on the inference which may be drawn from unexplained possession of recently stolen property.

We also find no merit in the remaining. contentions made by appellant. The search which produced the shirts admitted into evidence against Howard did not violate his fourth amendment rights. - Furthermore the record compiled in this case contains overwhelming evidence that Howard possessed the stolen shirts in question and that he knew them to be stolen. In view of the overwhelming evidence of guilt we are convinced that any error committed in excluding certain testimony of Louise Walker as hearsay was harmless beyond a reasonable doubt. The judgment of conviction entered by the district court is affirmed.

Affirmed.

      . When the instant ease was orally argued the court and counsel were aware that the Barnes case was pending in the Supreme Court. We delayed our decision in this ease until the Barnes decision was released.


author: McWilliams, circuit judge.

text:
    Aubrey Tinsley SADE, Plaintiff-Appellee, v. NORTHERN NATURAL GAS COMPANY, Defendant-Appellant.
    No. 72-1833.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted May 25, 1973.
    Decided Aug. 14, 1973.

      John W. Norman, Oklahoma City, Okl. (H. Lee Turner, Great Bend, Kan., Gene H. Sharp, Liberal, Kan., and Lamp-kin, Wolfe, Abel, McCaffrey & Norman, Oklahoma City, Okl., on the brief), for plaintiff-appellee.
    Robert P. Hall, Oklahoma City, Okl. (Richard W. Fowler, McAfee, Taft, Cates, Mark, Bond & Rucks, Oklahoma City, Okl., and Floyd E. Jensen, Adams, Jones, Robinson & Malone, Wichita, Kan., on the brief), for defendant-appellant.
    Before BREITEN STEIN, McWIL-LIAMS and DOYLE, Circuit Judges.
   McWilliams, circuit judge.

Aubrey Tinsley Sade brought an action sounding in fraud against Northern Natural Gas Company. Upon trial of the matter, a jury returned a verdict in Sade’s favor in the sum of $200,000 and Northern now appeals the judgment entered thereon.

This is the second time this case has been before us. For a detailed recitation of the factual background out of which the present controversy arises, see Sade v. Northern Natural Gas Company, 458 F.2d 210 (10th Cir. 1972). The facts will be set forth here only to the extent necessary to an understanding of the issues raised in the present appeal. In this regard we would note that the issues raised in the present appeal are not related to the issues raised in the first appeal and our prior opinion in nowise disposes of the questions now posed.

Sade was a heavy equipment operator employed by the Dresser Engineering Company, an Oklahoma corporation. Dresser entered into a contract with Northern to perform some construction work on Northern's pumping station near Teseott, Kansas. On July 24, 1965, while working for Dresser on the job site near Teseott, Kansas, Sade was very seriously injured in an explosion which occurred as he was assisting in the installation of a T-conneetion between two existing pipelines. The explosion was catastrophic in proportions, with three persons being killed and nearly a score of workmen being injured, some, such as Sade, suffering severe injuries. This unfortunate event was admittedly caused by one of Northern’s employees, who mistakenly and negligently pressed a switch which permitted gas to be transmitted to the area where Sade and the others were working.

On December 8, 1965, in Oklahoma City, Oklahoma, Sade signed a “Compromise and Settlement Agreement” with Northern, whereby, in return for the sum of $17,500, he released Northern from any liability for his injuries. In this regard, it was Sade’s testimony upon trial that in signing the release it was his intent to release only Northern, and that he did not intend to release Northern’s employees from possible liability for his injuries. Sade further testified that Northern’s attorneys had repeatedly assured him that the agreement had been specially drawn so that it would release only Northern, and not its employees, and that he would be free to thereafter bring suit against Northern’s employees. The release mentioned only Northern and did not mention its employees.

Based on his understanding of the scope of the settlement agreement, Sade next brought a personal injury action in Kansas against certain of Northern’s employees. The answer set up the release theretofore given Northern, and the Kansas trial court granted summary judgment in favor of Northern’s employees on the grounds that the aforesaid release operated as a release of Northern’s employees, as well as Northern. On appeal, this ruling was upheld. Sade v. Hemstrom, 205 Kan. 514, 471 P. 2d 340 (1970).

It was in this setting that Sade instituted the present proceeding against Northern in the United States District Court for the Western District of Oklahoma. The gravamen of the complaint was that Northern had fraudulently procured the release in question by assuring him that he was not releasing Northern’s employees from possible liability for his injuries, when in fact he was releasing any claim he had against Northern’s employees, and that as the result of such fraud he was deprived of his claim against Northern’s employees.

The trial court initially granted Northern’s motion for summary judgment on the ground that the fact that Sade had received workmen’s compensation benefits under Oklahoma law precluded him from maintaining the present fraud action against Northern. On appeal, we reversed. See Sade v. Northern, supra.

As indicated, trial of this case culminated in a judgment in favor of Sade, and against Northern, in the sum of $200,000. Northern’s various contentions as to why the judgment should be reversed are grouped as follows: (1) A claim sounding in fraud cannot be maintained, since the settlement agreement and release were never set aside; (2) the claim is barred under the election of remedies doctrine; (3) the claim is barred as a matter of law under the two-year Oklahoma statute of limitations, 12 O.S. § 95, as amended; (4) improper instruction as to the measure of damages; and (5) certain procedural irregularities occurring during the course of the trial proper. We shall examine these matters, seriatim.

I. No claim in fraud since settlement agreement has never been set aside.

Northern initially argues that though there be a split of authority on the matter, and though the Oklahoma courts have not spoken on the subject, the better rule is that one who releases a personal injury claim by executing a release which is fraudulently procured may not maintain an action in fraud against the one who obtained the release, and that his remedy is to have the release set aside, and then assert his original cause of action against the person or persons purportedly covered by the fraudulently procured release. In support of this proposition, see such cases as Shallenberger v. Motorists Mutual Ins. Co., 167 Ohio St. 494, 150 N.E.2d 295 (1958); Davis v. Hargett, 244 N.C. 157, 92 S.E.2d 782 (1956), and Taylor v. Hopper, 207 Cal. 102, 276 P. 990 (1929).

As indicated, other courts have reached a contrary result. See, for example, Ware v. State Farm Mutual Automobile Ins. Co., 181 Kan. 291, 311 P.2d 316 (1957); Rochester Bridge Co. v. McNeill, 188 Ind. 432, 122 N.E. 662 (1919), and Urtz v. New York Central & H. R. R. Co., 202 N.Y. 170, 95 N.E. 711 (1911). In Ware appears the following pertinent comment, 311 P.2d at 320:

“ * * * n js a well-established rule that where a release of a cause of action is procured by fraud the defrauded party may choose any one of three remedies: (1) he may return the consideration paid for the release, thereby rescinding the transaction; (2) he may sue for a rescission and offer to return the consideration; or (3) he may waive his right to rescind and sue to recover any damages suffered by reason of the fraud perpetrated upon him * *

Counsel agree that the Oklahoma courts have never considered this particular point. We deem Evans v. Burson, 65 Okl. 114, 164 P. 471 (1917), cited by Northern as indicating Oklahoma would follow the rule set forth in Davis, Shal-lenberger and Taylor, supra, to be inap-posite. That case did not involve a fraudulently procured release of a personal injury claim, which is at the heart of the present controversy. Of more help, although still not precisely on target, are such cases as Kennedy v. Raby, 174 Okl. 332, 50 P.2d 716 (1935), and Great American Life Ins. Co. of Hutchinson, Kan. v. Love, 169 Okl. 35, 35 P.2d 948 (1934). In those cases it was held that where a release of rights has been fraudulently procured, an action for damages may be maintained without first obtaining a decree cancelling the release.

In any event, in such circumstance we elect to defer to the judgment of the trial court as to what the Oklahoma law on this subject will be when the Oklahoma courts are confront-ed with the problem. The views of a resident district judge on the unsettled law of his state are persuasive and ordinarily accepted. Binkley v. Manufacturers Life Ins. Co., 471 F.2d 889 (10th Cir. 1973), petition for cert. filed, 41 U. S.L.W. 3637 (U.S., May 23, 1973) (No. 72-1572); Jorgensen v. Meade Johnson Laboratories, Inc., 483 F.2d 237 (10th Cir., filed July 25, 1973), and Vaughn v. Chrysler Corp., 442 F.2d 619 (10th Cir. 1971), cert denied, 404 U.S. 857, 92 S.Ct. 106, 30 L.Ed.2d 98 (1971). We accede to the trial court’s determination that Sade has a claim upon which relief may be granted.

Before leaving this subject, we would note that the factual sequence in the instant case is somewhat different from those in the cases above cited. Here, Sade brought suit against Northern’s employees, and only then found out that such was barred by the release he had given Northern. To thereafter set aside the release would not necessarily enable him to maintain a second action against Northern’s employees. Such an action might well be faced with a plea of res judicata. In any event, when Sade discovered that the release covered Northern’s employees, even though Northern had assured him it did not, his only remedy at that point would appear to be to proceed against Northern on its fraud. More will be said about this particular matter in the next section.

II. The fraud claim is barred by the election of remedies doctrine.

Northern next asserts that under the election of remedies doctrine any claim by Sade against Northern based on fraud is barred by the fact that he had previously instituted, and pursued on through to conclusion, an action in negligence against Northern’s employees in the Kansas courts. In this regard, it is Northern’s contention that in the Kansas proceeding Sade disaffirmed the settlement agreement, and in the present action he affirms the settlement agreement and seeks damages resulting from Northern's alleged fraud. This, Sade cannot do, avers Northern, under the election of remedies doctrine.

In thus arguing, counsel relies on such cases as Oklahoma Co. v. O’Neil, 440 P.2d 978 (Okl.1968); Dudley v. King, 285 P.2d 425 (Okl.1955), and Freeland v. Dolen, 84 Okl. 286, 203 P. 182 (1922). Those cases stand for the proposition that three requirements must be met before the doctrine of election of remedies can be invoked: (1) The existence of two or more remedies; (2) an inconsistency between the remedies; (3) the choice, with knowledge of the facts, of one of the several available remedies; and that if any one of these elements be missing, “then the result of preclusion does not follow.” We have no quarrel with this general statement of the law, but we deem it inapplicable to the present factual situation.

In the first place, we disagree with Northern’s initial premise that in instituting the Kansas action, Sade dis-affirmed the compromise settlement. Rather, as we see it, in instituting the Kansas proceeding it was Sade’s position that the compromise agreement was valid and binding, but that it did not cover Northern’s employees, but only Northern itself. In this regard, as earlier noted, the release made no mention of Northern’s employees, and, according to Sade, Northern’s attorneys repeatedly assured him that the release did not preclude him from suing Northern’s employees. Hence, we fail to see just how Sade was disaffirming the release when he sued Northern’s employees.

Additionally, one of the essential elements under the authorities above cited is that there be a knowledgeable choice of one remedy to the exclusion of other available and inconsistent remedies. In our view, there was no such knowledgeable choice by Sade in the instant case. On the contrary, the knowledge of a remedy by means of an action in fraud against Northern didn’t become known to Sade, with any certainty, till the Kansas courts held that the release covered Northern’s employees, as well as Northern. Prior thereto, Sade was at all times of the view that the release preserved his right to sue Northern’s employees. Under such circumstances, there surely could not be a knowledgeable choice by Sade of one of several inconsistent remedies. Without further belaboring the point, the present action is not barred by the election of remedies doctrine.

III. The claim is barred as a matter of law under the Oklahoma two-year statute of limitations.

It is agreed that the instant case is governed by 12 O.S. § 95, as amended, which provides that an action for relief on the ground of fraud must be brought within two years after the cause of action has accrued, and that the cause of action shall not be deemed to have accrued until discovery of the fraud. The phrase “until the discovery of the fraud” does not necessarily mean until the party has actual notice of the fraud, and fraud is deemed to have been discovered when, on the exercise of reasonable diligence, it could, and should have been, discovered. Walker v. Walker, 310 P.2d 760 (Okl.1957).

The fraud found by the jury in the instant case necessarily occurred on or about December 8, 1965, the date when the release was signed. The present action was not instituted till March 5, 1969. Accordingly, a pivotal question was when Sade could have known, and should have known, that he was the victim of Northern’s fraud in securing the release. If he knew, or should have known, prior to March 5, 1967, then his action is barred by the two-year statute of limitations. If, on the contrary, he only learned of the fraud, and could only have been reasonably expected to thus learn, after March 5, 1967, then his action is not barred by the two-year statute.

Sade instituted his negligence action in the Kansas courts on June 22, 1967, and the Kansas trial court granted summary judgment against him on January 13, 1969. As indicated, Sade instituted the present action on March 5, 1969. It is Sade’s position that he did not learn, nor could he reasonably have been expected to learn, of Northern’s fraud till sometime after he instituted the Kansas proceeding, when Northern's employees in their answer set up the release supplied them by Northern. It is Northern’s position, on the other hand, that Sade should have learned of Northern’s alleged fraud long before March 5, 1967.

The trial court submitted to the jury the issue as to when Sade knew, or should have known, of Northern’s alleged fraud under instructions which in our view adequately advised the jury of the consequences which would flow from its decision on the matter. We find no error in submitting this matter to the jury. The testimony and inferences to be drawn therefrom bearing on this particular issue were conflicting and posed an issue of fact, not one of law. The jury by its verdict has determined that the action is not barred by the two-year statute of limitations, and we are not inclined to disturb its finding.

IV. Improper instructions on the measure of damages.

The jury was instructed that if they found for Sade, they should “compensate him for his losses, if any, which occurred as a direct consequence of * * * [his] reliance on and as a direct consequence of the false representations of the Defendant, if any * * This instruction, though rather broad in its language, would ap-_ pear to be in line with two Oklahoma statutes. 23 O.S. § 61 and 76 O.S. § 2. See, too, the reasoning in Kennedy v. Raby, supra.

Northern objected to this instruction on the ground that the proper measure of damages was the “fair settlement value” of Sade’s claim against Northern, citing such cases as Rochester Bridge Co. v. McNeill, supra, and Urtz v. New York Cent. & H. R. R. Co., supra. This particular objection was overruled and Northern now assigns that ruling as error.

We need not be here concerned with whether the cases cited in the preceding paragraph fully support the proposition for which they are urged. It would at first blush seem to us to be a bit unfair to have Sade’s damages determined on the premise that Sade was required to settle his claim. However, we need not explore all the ramifications of this matter. It is sufficient to say that in our view Oklahoma law, both statutory and case-made, justified the trial court in refusing to instruct the jury that the measure of damages was the figure for which Sade’s claim would have ultimately been settled.

As a corollary of its damage argument, Northern claims it should have been allowed credit for the $17,500 it gave Sade, and for the $35,000 it gave Dresser’s workmen’s compensation carrier in return for the latter’s surrendering its subrogation rights. Evidence pertaining to both of these items was before the jury, and in connection therewith, the jury was instructed to disregard both in assessing • Sade’s damages. Northern argues that the instruction to thus disregard was in error, and that the error can be corrected even at this late date by simply deducting from the judgment, as it now stands, the sum of $52,500 representing the sum of $17,500 and $35,000. In our view, under the circumstances, Northern should be given credit for $17,500, but not for the $35,000 figure.

The evidence pertaining to the $35,000 settlement between Northern and Dresser’s compensation carrier is too meager to really allow a consideration of the matter on its merits. It would appear that in return for the payment by Northern of $35,000, Dresser’s carrier released all subrogation rights which it might have arising out of the payment by it of a number of compensation benefits arising out of the filing of a considerable number of claims by injured workmen. What portion of this $35,000 could be attributed to Sade is impossible to determine. All of which fortifies us in our conclusion that, on the record before us, credit cannot be given Northern for the $35,000 it paid Dresser’s insurance carrier.

However, in our view credit should be given Northern for the $17,500 it paid Sade for a release which has now been held to release both Northern and its employees from liability. Throughout the trial Sade proceeded on the premise that his damages were the sum which he could have reasonably expected to have recovered from Northern’s employees if his cause of action against them had not been barred by the fraudulently procured release. The jury has now set that figure at $200,000. It would appear to us that in such setting Northern should be given credit for the $17,500 previously paid Sade. Such result would appear to be in accord with Southwestern Nat. Life Ins. Co. v. Wampler, 163 Okl. 3, 20 P.2d 189 (1933), where it was held that in an action to recover the balance allegedly due on an insurance policy, it was not necessary to tender back or return the consideration received in a settlement agreement obtained under duress and that it was sufficient to offer to “credit such amount on the judgment.” See also Pecinosky v. Oklahoma Aid Ass’n, 131 Okl. 240, 268 P. 309 (1928).

V. Procedural irregularities occurring during the course of the trial.

At the outset of the trial, the trial judge indicated that he was not going to permit the introduction of evidence that Sade had received workmen’s compensation benefits or evidence that at the time of the accident Northern carried liability insurance which covered its employees. Thereafter, in cross-examining Sade, counsel asked why he would consider suing one of Northern’s employees, instead of Northern itself, and Sade’s answer was to the effect that he assumed the employees were covered by Northern’s insurance. No objection was made to the answer as not being responsive. And in our view the answer would certainly seem to have been invited by the question.

In any event, because of several other instances of the type just related, i. e., the mention of compensation benefits and “insurance,” the trial judge determined to advise the jury that Sade had in fact received compensation benefits and, additionally, that Northern did carry liability insurance on its employees. Whether the trial judge acted wisely in thus advising the jury, or whether he should have let the matter lie where it was, is debatable. In any event, though Northern did object, at least mildly, the matter at the time did not appear to be a major problem. No request for any mistrial, for example, was made. It was only after the verdict had been returned that the matter took on increased significance. Under all the circumstances, we deem any error in this regard to be harmless under Fed.R.Civ.P. 61. When viewed in context, it is not such a matter as would require a new trial.

Additionally, it is argued that counsel for Sade was allowed to improperly cross-examine, to repeatedly argue with Northern’s witnesses, and the like. We have examined those matters and find nothing which would warrant a reversal of the case.

The judgment as entered by the trial court is reduced to the sum of $182,500, plus interest and costs, and, as thus modified, the judgment is affirmed.


author: HOLLOWAY, Circuit Judge.

text:
    Andrew N. JORGENSEN, as special administrator of the Estate of Kimberly D. Jorgensen, Deceased, and Pamela B. Jorgensen, By and Through her father and next friend, Andrew W. Jorgensen, Plaintiffs-Appellants, v. MEADE JOHNSON LABORATORIES, INC., a corporation, d/b/a Oracon, Defendant-Appellee.
    No. 72-1240.
    United States Court of Appeals, Tenth Circuit.
    July 25, 1973.
    Rehearing Denied and Rehearing En Banc Denied Oct. 1, 1973.

      Murray E. Abowitz, Oklahoma City, Okl. (Don Manners, Oklahoma City, Okl., on the brief), for plaintiffs-appellants.
    Alex Cheek, Oklahoma City, Okl. (John D. Cheek and William C. Mc-Alister of Cheek, Cheek & Cheek, Oklahoma City, Okl., on the brief), for defendant-appellee.
    Before HILL, HOLLOWAY and BARRETT, Circuit Judges.
   HOLLOWAY, Circuit Judge.

This diversity suit for personal injuries is brought against Meade-Johnson Laboratories, Inc., the plaintiff claiming that the pharmaceutical company is liable for deformities of his Mongoloid twin daughters. • The claim is that the company’s oral contraceptive product, Oracon, used by the plaintiff’s wife, caused the Mongoloid condition and that the company is liable under principles of strict liability in tort, negligence and breach of express and implied warranties. The' district court dismissed the action for failure to state a claim for relief. 336 F.Supp. 961. Due to the favorable consideration which must be given a complaint on the motion, and principles of Oklahoma law on such bases of recovery, we are unable to agree with the district court.

The complaint essentially alleges these facts. One claim is asserted by the father as administrator for the estate of one twin girl who died at the age of three and one-half years. The other claim is maintained by him as next friend of the surviving twin. The claims with respect to both children are for their personal injuries including retardation, deformity, pain and suffering. The claim by the administrator is in the nature of a survival action for such personal injury, pain and suffering, and does not appear to include any allegations of pecuniary loss for*, a wrongful death suit.

The complaint avers that on or about May 1, 1966, and at different times thereafter, the mother of the twins purchased the company’s Oracon birth control pills and used them for several consecutive months; that immediately prior to November 1, 1966, she ceased taking the pills and became pregnant; and that on July 19, 1967, she gave birth to the Mongoloid twins, Kimberly and Pamela. Kimberly died in March, 1971. It is claimed that the company is strictly liable in tort and for negligence and breach of its warranties in the manufacture and sale of the birth control pills.

The complaint specifically alleges that the company expressly and impliedly warranted that the pills were safe and fit for human consumption. It avers that the company breached its warranties of fitness and safety in that the pills contained compounds and chemicals dangerous and injurious to humans, and in particular the minor plaintiffs. It alleges that the defendant failed to warn the plaintiff’s wife and to label the pills, setting forth the dangerous effects when orally taken. The harmful effects are alleged specifically as follows with respect to the claim for Pamela, the surviving twin:

“Specifically, the aforesaid birth control pills altered the chromosome structure within the'body of the plaintiff's wife, Alta J. Jorgensen, and as a result thereof, a Mongoloid deformity was created within the viable fetus of the minor plaintiffs during the period of development prior to birth.
“The plaintiff further alleges and states that as a direct and proximate result of the negligence and breach of warranty on the part of the defendant, the viable fetus of the minor plaintiffs were exposed to the altered chromosome structure within the mother’s body thereby inducing the condition of monogolism, and said minor plaintiff, Pamela B. Jorgensen, suffered severe, excruciating, and constant pain and suffering and mental retardation and deformity as a result of the aforesaid exposure. In addition, the minor plaintiff, Pamela B. Jorgensen, has sustained permanent injury as a result thereof. . . .”

The claim as to the deceased twin, Kimberly, adopts the above allegations and makes other similar averments and seeks damages for retardation, deformity, pain and suffering.

As stated the district court sustained a motion to dismiss for failure to state a claim. Its memorandum opinion, relying on Morgan v. United States, 143 F.Supp. 580 (D.N.J.), concluded that no such cause of action exists in Oklahoma because the tortious conduct occurred before conception of the children allegedly injured. The court also said that any such right, arising out of injury to the chromosome structure of the mother prior to conception, should be created by the legislature. 336 F.Supp. at 962.

The views of a District Judge on the unsettled law of his’ State are persuasive and are ordinarily accepted. Vaughn v. Chrysler Corp., 442 F.2d 619, 621 (10th Cir.), cert. denied, 404 U.S. 857, 92 S.Ct. 106, 30 L.Ed.2d 98. However we must disagree with the trial court here since from our examination of Oklahoma law, and giving the complaint favorable consideration on the jnotion, we are convinced that the dismissal was incorrect. See Gooding v. Wilson, 405 U.S. 518, 524, 92 S.Ct. 1103, 31 L.Ed.2d 408; Darby’s Estate v. Wiseman, 323 F.2d 792, 795-796 (10th Cir.).

We are admonished by the Supreme Court that the complaint be given most favorable consideration in ruling on a motion to dismiss. It should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80; Keenan v. Looney, 227 F.2d 878 (10th Cir.).

As stated above, in part the district court reasoned that there could be no right of the child arising out of preconception injury to the chromosome structure of the mother, until legislative recognition is given to such a right. However, in giving the complaint the favorable consideration required we must weigh with the remainder of the complaint the allegations that “a Mongoloid deformity was created within the viable fetus of the minor plaintiffs during the period of development prior to birth . . .” and that the “. . . viable fetus of the minor plaintiffs were exposed to the altered chromosome structure within the mother’s body . . .” Thus the pleading should not be construed as being limited to effects or developments before conception.

Moreover regardless of allegations as to when or how the effects developed, the case should not be viewed from the standpoint of alleged effects on the mother, who is not suing, but from that of the twins and the injuries allegedly inflicted on them. If the view prevailed that tortious conduct occurring prior to: conception is not actionable in behalf of j. an infant ultimately Jnjured by the wrong, then an infant suffering personal injury from a defective food product, manufactured before his., conception, ‘"Would be without remedy. Such reasoning runs counter to the various principles of recovery which Oklahoma recognizes for those ultimately suffering in-» juries proximately caused by a defective product or instrumentality manufactured and placed on the market by the defendant. See Jackson v. Cushing Coca-Cola Bottling Co., 445 P.2d 797, 799 (Okl.); Barnhart v. Freeman Equipment Co., 441 P.2d 993, 999 (Okl.); Marathon Battery Co. v. Kilkpatrick, 418 P.2d 900, 914-915 (Old.); White Motor Corporation v. Stewart, 465 F.2d 1085, 1088-1089 (10th Cir.); Marshall v. Ford Motor Co., 446 F.2d 712, 714 (10th Cir.) ; Speed Fastners, Inc. v. Newsom, 382 F. 2d 395, 398 (10th Cir.); see also Gordon, The Unborn Plaintiff, 63 Mich.L. Rev. 579 (1965).

We are persuaded that the Oklahoma courts would treat the problem of the injuries alleged here as one of causation and proximate cause, to be determined by competent medical proof. Such personal injury cases raise factual issues turning on the medical evidence. See Jackson v. Cushing Coca-Cola Bottling Company, 445 P.2d 797, 799 (Okl) ; Hill v. Culligan Soft Water Service Company, 386 P.2d 1018, 1021 (Okl.); Oklahoma Natural Gas Co. v. Graham, 188 Okl. 521, 111 P.2d 173, 174; see also Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93, 96 (treating the cause of a Mongoloid condition as a factual one requiring medical proof); Womack v. Buchhorn, 384 Mich. 718, 187 N.W.2d 218, 219, 222 (referring to advances in medical knowledge in the context of a suit for prenatal injuries); Smith v. Brennan, 31 N.J. 353, 157 A.2d 497, 503; Bennett v. Hymers, 101 N.H. 483, 147 A.2d 108, 110. And such treatment of the problem would accord with the predominant view that an action may be maintained for prenatal injuries negligently inflicted if the injured child is born alive. See Sinkler v. Kneale, supra, 164 A.2d at 94-96, and cases there collected; Womack v. Buchhorn, supra, 187 N.W.2d at 220-222, and cases there collected Annotation, Liability For Prenatal Injuries, 40 A.L.R.3d 1222, 1228.

We feel that the trial court was incorrect in concluding that recognition of such a cause of action must await legislative action. In Oklahoma the basic principles of strict liability in tort, negligence and warranty have been primarily recognized by court decision, even though substantially new bases of recovery were afforded. See, e. g., Barnhart v. Freeman Equipment Co., 441 P.2d 993 (Okl.); Marathon Battery Co. v. Kilpa-trick, supra; Southwest Ice & Dairy Products Co. v. Faulkenberry, 203 Okl. 279, 220 P.2d 257; Crane Co. v. Sears, 168 Okl. 603, 35 P.2d 916; Lone Star Gas Co. v. Parsons, 159 Okl. 52, 14 P.2d 369, 371-372 (recognizing the doctrine of attractive nuisance as a basis of recovery for the minor’s personal injuries) ; and see Vaughn v. Chrysler Corp., supra; Marshall v. Ford Motor Co., supra. Moreover the right to sue for prenatal injury has generally evolved from court decisions. See Sinkler v. Kneale, supra, 164 A.2d at 94-96; Wom-ack v. Buchhorn, supra, 187 N.W.2d at 220-221; Annotation, Liability for Prenatal Injuries, 40 A.L.R.3d 1222, 1226, et seq.

The appellee relies on Padillow v. El-rod, 424 P.2d 16 (Okl.), and Howell v. Rushing, 261 P.2d 217 (Okl.). The district court was of the view that these holdings are inapplicable, and we agree. The cases held only that a wrongful death action may not be maintained for prenatal injuries where a child is stillborn. The Padillow opinion clearly shows that the Oklahoma Court was not considering or ruling on a case where an injured child is born alive. 424 P.2d at 18. Moreover the claims involved in our case are not for wrongful death, as the Padillow and Howell cases were, but for retardation, deformity, pain and suffering during their lifetime.

For these reasons we conclude that the complaint should not have been dismissed. We are convinced the Oklahoma courts would afford an opportunity to present a case on these allegations. It does not appear beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80. Accordingly the judgment of dismissal is vacated and the cause is remanded for further proceedings.

Before LEWIS, Chief Judge and HILL, SETH, HOLLOWAY, McWIL-LIAMS, BARRETT, and DOYLE, Circuit Judges.

ON PETITION FOR REHEARING

This matter comes on for consideration of the petition for rehearing and suggestion for rehearing en banc filed by the appellee.

Upon consideration whereof, the petition for rehearing is denied by Circuit Judges Hill, Holloway and Barrett, to whom the case was argued and submitted.

The petition for rehearing having been denied by the original panel to whom the case was argued and submitted and no member of the panel nor judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, Rule 35, Federal Rules of Appellate Procedure, the petition for rehearing en banc is denied.

      . A survival action for injury, pain and suffering is maintainable in Oklahoma under 12 O.S.A. § 1051, and is distinct from a wrongful death action for pecuniary loss under 12 O.S.A. § 1053. St. Louis & San Francisco R. Co. v. Goode, 42 Okl. 784, 142 P. 1185, 1188.

      . For these reasons and others to follow we are satisfied that the reasoning in the Federal Tort Claims Act decision under Pennsylvania law in Morgan v. United States, supra, relied on by the district court, would not be applied by the Oklahoma courts in the case before us.

      . We, of course, express no opinion on the merits of plaintiff’s factual and medical claims. Various hypotheses concerning the etiology of Down’s Syndrome, or as it is more commonly called, Mongolism, have been discussed in the literature. See Benda, Down’s Syndrome; Mongolism and Its Management (rev. ed. 1969) ; Lilienfeld, Epidemiology of Mongolism (1969) ; “Maternal Health and Mongolism” Lancet, 1972, 312-315. For law review articles dealing extensively with the subject of prenatal tort law see Gordon, The Unborn Plaintiff, 63 Mich.L.Rev. 579 (1965) ; Note, The Impact of Medical Knowledge on the Law Relating to Prenatal Injuries, 110 U. of Pa.L.Rev. 553 (1962).

      . In this connection the district court’s memorandum cites Padillow v. Elrod, 424 P.2d 16 (Okl.), denying recovery in a wrongful death action for prenatal injury to a child that was stillborn. The memorandum refers to a statement by the Oklahoma Court that since an earlier wrongful death decision to the same effect had not been altered by the legislature, the older case would still be followed, gee also State Department of Highways v. Bowles, 472 P.2d 896, 902 (Okl.).
      We feel that such an interpretation from legislative inaction after a court decision does not support the view that the Oklahoma courts would refuse to entertain a suit like this under warranty and tort principles, without legislative sanction. The recognition of such principles of recovery has not been limited to either legislative or judicial action in Oklahoma, but has proceeded by court decisions, such as those cited in the text, infra, and by statute. See, e. g., 12A O.S.A. §§ 2-313, 314 and 315, dealing with express and implied warranties, and Speed Fastners, Inc. v. Newsom, supra, applying the implied warranty of merchantability as provided by the Uniform Commercial Code.


text:
    Anthony T. LEE et al., Plaintiffs, United States of America, Plaintiff-Intervenor and amicus curiae, National Education Association, Inc., Plaintiff-Intervenor-Appellant-Cross Appellee, v. MACON COUNTY BOARD OF EDUCATION et al., Defendants, Colbert County School System, Defendant-Appellee-Cross Appellant.
    No. 72-3015.
    United States Court of Appeals, Fifth Circuit.
    Aug. 10, 1973.
    Solomon S. Seay, Montgomery, Ala., Thomas M. Larson, Dept, of Justice, Education Section, Civil Rights Div., Brian K. Landsberg, Dept, of Justice, Washington, D. C., Jack Greenberg, NAACP, New York City, Wayman G. Sherrer, U. S. Atty., Birmingham, Ala., for appellant.
    Harold V. Hughston, Tuseombia, Ala., Robert L. Potts, Florence, Ala., for ap-pellee.
    Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
   PER CURIAM:

These appeals involve certain teachers in the Colbert County, Alabama, School System who claimed that their rights were infringed by the School Board. The first concerns Amos Malone, who is black, whose complaint was that he had not been offered a principalship vacancy. The district court ordered that Malone be offered a principalship in the School System. The second appeal concerns Thomas Mitchell and Rowena Kil-goar, white, nontenured teachers who complained because they were not reemployed for the 1971-72 school year by the Board. The district court declined to order reemployment of the two nontenured teachers. We- believe the district court reached the correct result in each instance and affirm.

Malone had formerly been the principal of Barton-Red Rock Elementary School which was closed by court order. The school had only 3 teachers, including Malone, and 56 students. The district court had previously issued an order on July 21, 1971, pertaining to Malone in which it found that he had accepted a classroom teaching position in 1969-70 when his school was closed and it had been agreed between him and the Board that his salary, however, would not be reduced below what he had been earning. The court at that time ordered that Malone be given due consideration in filling first vacancies in the future for which he qualified. Thereafter, elementary principalship vacancies occurred and he was not tendered such a position, but they were filled by whites. The Board contended that Malone was not qualified for a principalship vacancy but the district court held that “[t]he evidence established that Malone was no less qualified to be a principal now than he was in 1968.” The alleged derelictions of Malone by the Board were also considered by the trial court which found that Malone had not only continued in the employment of the Board but no disciplinary action had been taken against him. Under the circumstances we agree with the district judge, as expressed in his order filed July 17, 1972, that Malone was entitled to appointment in one of the principalship vacancies. See Singleton v. Jackson Municipal Separate School District, 5 Cir., 1970, 419 F.2d 1211; Lee v. Macon County Board of Education (Muscle Shoals School System), 5 Cir., 1971, 453 F.2d 1104.

The case of Thomas Mitchell and Rowena Kilgoar differs from Malone’s. These white probationary teachers were notified at the end of the 1970-71 year that they would not be rehired for the 1971-72 school year. They were advised in letters by the Board that their contracts were not being renewed ; that the Board had been ordered by the district court to increase the ratio of black to white teachers; and that for financial reasons it was necessary to accomplish a reduction in the number of teachers. Though there were new teachers employed for the school year, including 5 blacks,, no new teacher was hired to fill the positions held by Mitchell and Kilgoar but their teaching assignments were transferred to other tenured teachers. It was the Board’s position, expressed in writing to both of these nontenured teachers, that since “a very high percentage of the teachers in the system have tenure, practically the only way that black teachers could be hired was to replace white teachers without tenure with available black teachers.” Of course, these nontenured teachers did not have a constitutional right to be reemployed. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 2717, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 2717, 33 L.Ed.2d 570 (1972). The action of the Board comports with our prior holdings in Hall v. St. Helena Parish School Board, 5 Cir., 1969, 417 F.2d 801, 811; United States v. Indianola Municipal Separate School District, 5 Cir., 1969, 410 F.2d 626, cert. denied, 396 U.S. 1011, 90 S.Ct. 571, 24 L.Ed.2d 503 (1970); and United States v. Greenwood Municipal Separate School District, 5 Cir., 1969, 406 F.2d 1086, cert. denied, 395 U.S. 907, 89 S.Ct. 1749, 23 L.Ed.2d 220 (1969), in which we pointed out, among other things, that to achieve proper integration of faculty the Board’s responsibility requires that it must withhold approval of teacher contracts if necessary to achieve faculty desegregation.

Affirmed..


text:
    Anthony T. LEE et al., Plaintiffs-Appellants, United States of America, Plaintiff-Intervenor and Amicus Curiae, National Education Association, Inc., Plaintiff-Intervenor, v. MACON COUNTY BOARD OF EDUCATION et al., Defendants, Anniston City School System, Defendant-Appellee.
    No. 73-2002.
    United States Court of Appeals, Fifth Circuit.
    Aug. 10, 1973.
    U. W. Clemon, Birmingham, Ala., Norman Chachkin, Jack Greenberg, New York City, for appellants.
    Solomon Seay, Montgomery, Ala., for N.E.A.
    Brian K. Landsberg, Paul F. Hancock, Attys., Dept, of Justice, Civil Rights Div., Washington, D. C., Wayman G. Sherrer, U. S. Atty., Birmingham, Ala., for amicus curiae.
    Walter J. Merrill, Anniston, Ala., for appellee.
    Before BELL, AINSWORTH AND GODBOLD, Circuit Judges.
   PER CURIAM:

This appeal by private plaintiffs-appellants involves a new plan for student and faculty desegregation of the Annis-ton, Alabama, City Board of Education which was approved on April 9, 1973, by the district court, on joint motion of the Board and the United States.

A short chronological history of this matter is appropriate. We affirmed the order of the three-judge district court approving a plan of desegregation for Anniston, by our decision in this cause dated July 15, 1970. See 429 F.2d 1218 (5 Cir.). The plan was implemented in the 1970-71 school year. On March 4, 1971, the United States moved the district court to require the Board to prepare a new plan of desegregation. A consent order was entered on June 23, 1971 providing for strict enforcement of attendance zone lines. Then, on October 1, 1971, the district court ordered the filing of a new plan by October 25, that the parties file their objections to it by November 8, and set a hearing for November 18 and 19, 1971. The plan was duly filed and the United States filed its response thereto. No objection to the plan was filed by appellants. The hearing was held by the court on November 18 and 19 and 12 witnesses testified concerning the proposed plan and the objection thereto of the United States. Appellants, however, did not participate in the hearing. Thereafter, on December 28, 1971, the Board requested an order from the court to obtain the services of the Auburn University Center For Assisting School Systems With Problems Occasioned By Or Incident To Desegregation, which was granted on January 5, 1972. The Auburn Center made a detailed investigation and submitted a voluminous report which, with a new desegregation plan, was filed by the Board on May 10, 1972. A further hearing was held on June 19, 1972, after the United States had filed its response to the alternate plan objecting thereto, and testimony was taken. Appellants did riot participate in the hearing.

The district court issued its order approving the plan with some modifications on August 15, 1972, and the United States appealed on August 30, 1972. Appellants who had not participated in any of the hearings did not appeal nor did they join the United States in its appeal. While the case was on appeal the United States and the Board jointly requested that we vacate the August 15, 1972 order and remand the case to the district court that a new plan might be presented. We granted the motion on December 20,1972

On January 9, 1973, appellants prematurely filed objections to the proposed plan, but the plan was not actually filed with the court until February 20, 1973 when the Board and the United States jointly moved the district court for approval thereof. On April 9, 1973, the district court, without a further eviden-tiary hearing, on consideration of the joint motion and the objections heretofore filed by the private plaintiffs, approved the plan “with some minor changes suggested by the objections filed by the private plaintiffs and other changes made by the court.” Appellants then brought this appeal.

Anniston is a city of 31,533 people, of whom 10,891 are black. In the last school year, 1972-73, it operated 15 schools with 6,336 students, of whom 3,251 (51.3%) were black. The new plan of desegregation approved by the court provides for much more integration of the school system. The secondary schools will be completely integrated by providing one high school for all students, black and white, where two existed before, and one junior high school for all students where there were two before. Five elementary schools, two formerly black and three formerly white, considered by the Auburn Center Study to be the poorest in physical condition in the system, will be closed and all of the students, white and black, in these schools will be transferred to the formerly Johnston Junior High School. Two all-black schools remain but the plan approved by the district court of April 9, 1973 provides, “The School Board recognizes their obligation to eliminate the racial identity of these schools and will continue to study means of desegregating the facilities. The Board will file a report with the United States District Court for the Northern District of Alabama by June 1, 1974, indicating the steps that have been taken to achieve further desegregation at these facilities and detailing the efforts that will be taken in the future.”

Appellants’ contention that they were entitled to a further evidentiary hearing on their objections is without merit. All of the facts concerning the several alternatives for desegregating the An-niston schools have been thoroughly and completely considered in the record. A further hearing would not be productive of any information not already fully available to the court as the result of prior hearings, none of which was attended by private plaintiffs-appellants who chose not to participate therein. The district court nevertheless considered the objections raised by appellants and made some changes suggested by them. We believe the court has exercised reasonable discretion under the circumstances. It is apparent that substantial progress has been made by the Board. The district court has exercised close supervision over the operation of the plan in the past and we may expect it to do so in the future, especially in light of the requirement that the School District must file a report with the court on October 15, 1973, and annually thereafter, showing the racial composition of each school, students and teachers, number of requests of majority to minority transfers, number of inter-district transfers granted and race of the students transferred, and whether the Board has sold or abandoned any school facility or equipment.

Affirmed.

      . The United States asserts in its brief (p. 5) that plaintiffs were served copies of all documents filed by the Government and were notified of each hearing date.

      . After the appeal from the August 15, 1972 order was lodged with the court, we are informed by the Board and the United States that voluntary negotiations were entered into in an attempt to resolve the questions presented in the appeal. After a two-day conference in Anniston an agreement was reached resulting in adoption by the Board of a new and “drastically different” plan of desegregation for the 1973-74 school year.

      . In their brief appellants allege that they were not served with a copy of the joint motion of February 20, 1973, but the allegation is refuted by the United States which attaches a copy of its letter dated February 22, 1973, showing service of a copy thereof on appellants’ counsel, Mr. . U. W. Clemon.


author: CHAMBERS, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Dennis J. DZIEDZIC, Defendant-Appellant.
    No. 73-1651.
    United States Court of Appeals, Ninth Circuit.
    July 24, 1973-
    Victor Sherman (argued), Beverly Hills, Cal., for defendant-appellant.
    James W. Meyers, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Shelby R. Gott, Stephen G. Nelson, Asst. U. S. Attys., San Diego, Cal., for plaintiff-appellee.
    Before CHAMBERS, HASTIE and CHOY, Circuit Judges.
   OPINION

CHAMBERS, Circuit Judge:

The order appealed from is affirmed.

The mandate shall not issue without a motion therefor and a hearing thereon.

Here we have an unusual ease, to wit:

On May 1, 1972, Dziedzic was sentenced to ten years in the federal penitentiary with a recommendation that the parole board give early consideration to parole.

On August 31, 1972, counsel for Dzied-zic filed a motion to reduce sentence. On Septembei-18,1972, the district judge modified the sentence to provide by his order that the defendant should have probation for five years.

Then on October 20, 1972, the government filed a motion to correct illegal sentence because the motion to reduce sentence had come too late, that is, three days after the 120 day limit of Rule 85, F.R.Crim.P. On December 14, 1972, the district judge indicated that he believed the government was right. Therefore, the sentence of May 1, 1972, was reimposed, but with a proviso that Dziedzic could be on bail pending the parole board decision on parole. The pa4'ole board takes the view that Dziedzic must give up his job, on which he has performed excellently, and report into the penitentiary and await his turn to be considered by the board.

Dziedzic did commit a heinous crime. But the district court believes him thoi*-oughly rehabilitated and does not want him incarcerated. The statute precludes the coui't from reeonsidei'ation now because of the lapse' of time.

Naturally, the board is a little shy, fearing a precedent. It does seem to us that when a court requests in such unusual circumstances that a parole be considered in advance of incarceration, the boai'd will not be setting a dangerous precedent if it is done only on a request of a court.

We respect the board’s right to pass its own independent judgment on the circumstances, but we doubt its position of insisting on possibly ruining the balance of a man’s whole life because of its technicalities. Thus, we make the order we do.

It should be noted that altogether Dziedzic has been incarcei'ated about twenty-five months.

The United States attorney is requested to attempt to secure a parole board heai'ing for Dziedzic on his application for parole without the incarceration requirement.

The government somehow should be flexible enough to accommodate itself to the needs of this case.