author: J. JOSEPH SMITH, Circuit Judge: OAKES, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Joseph G. HOULE and Victor Diodato, Appellants.
    Nos. 424, 445, 426, Dockets 72-1492, 73-1583, 73-1585.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 15, 1973.
    Decided Dec. 27, 1973.

      Christopher T. W. Ross, Buffalo, N.Y., for appellant Houle.
    Francis X. Murphy, Buffalo, N.Y. (Peter A. Vinolus, Lackawanna, N.Y., of counsel), for appellant Diodato.
    Richard J. Arcara, Asst. U.S. Atty. (John T. Elfvin, U.S. Atty., W. D. N.Y., of counsel), for appellee.
    Before KAUFMAN, Chief Judge, and SMITH and OAKES, Circuit Judges.
   J. JOSEPH SMITH, Circuit Judge:

Appellants Joseph Houle and Victor Diodato were convicted on October 6, 1971, after a trial by jury in the United States District Court for the Western District of New York, John T. Curtin, Judge, on one count of conspiracy and one count of stealing goods in excess of $100 from a truck moving in interstate commerce, in violation of 18 U.S.C. §§ 2, 371 and 659. We affirm in part and reverse in part.

On Saturday, February 6, 1971, a railroad checker discovered that trailer RIZ 507981 was missing from the Bison Ramp in Sloan, New York. Trailer RIZ 507981 had arrived at the ramp “piggyback” via the Rock Island and Pacific Railroad and the Norfolk and Western Railroad from Oakland, Iowa on February 4, 1971. It contained a shipment of beef destined for Erie, Pennsylvania which had a wholesale value of $17,990.-45. The Bison Ramp is an inspection, storage and transfer point on the Norfolk and Western Railroad.

Appellant Houle was employed by the Norfolk and Western Railroad as a police lieutenant at the Bison Ramp at the time of the theft. Appellant Diodato had a trucking business in nearby North Collins, New York. At trial, Norman Keller, an employee of Diodato’s trucking concern, admitted having driven the trailer in question from the ramp to North Collins and then to South Dayton,' New York on the night of February 5, 1971. Keller, described by the prosecution as a “dupe,” testified to Diodato’s role in the robbery. Edward Ring, an accomplice witness, testified to Houle’s involvement in the crime. This testimony, coupled with considerable circumstantial evidence, made out a strong case against appellants on both counts.

A. Appellant Houle

Houle makes four arguments on appeal. First, he contends that there was insufficient evidence from which the jury could have found that he knew that the stolen goods were in interstate commerce, and therefore his conviction on the conspiracy count must be overturned. Because actual knowledge of the interstate character of the stolen goods is not required to establish criminal liability on the substantive count, United States v. Crimmins, 123 F.2d 271 (2d Cir. 1941); United States v. Tyers, 487 F.2d 828 (2d Cir. 1973), this argument relates only to the conspiracy count.

The evidence produced at trial was more than sufficient to establish appellant’s knowledge of the interstate nature of the shipment. In Crimmins, this court stated that a continued indifference to the source of the stolen goods coupled with a knowledge that in some cases the goods had come from outside the state is sufficient to establish this element of the offense. Houle was employed at Bison Ramp, and the jury could infer from that fact that he knew that the ramp is a trans-shipment point for goods in interstate commerce. This alone might satisfy the Crimmins standard. It was also shown that Houle had access to the ramp office records, and that he consulted those records to answer questions put to him by Diodato concerning the stolen shipment. The jury could well conclude that in consulting the records, Houle discovered that Trailer RIZ 507981 was in interstate commerce.

Appellant’s second contention is that Judge Curtin told the jury that appellant was charged with aiding and abetting, whereas the indictment did not state that offense. In fact, the indictment did assert liability under 18 U.S.C. § 2, thereby notifying appellant that he was charged with aiding and abetting.

Appellant next argues that the discovery of new evidence entitles him to a new trial. He claims that after trial he discovered that Keller had been arrested prior to trial and charged with driving while intoxicated, resisting arrest, and criminal mischief in the third degree and that Keller had spoken to the Assistant United States Attorney about these charges prior to the trial below. Houle claims that the Assistant United States Attorney told Keller that he would speak to the district attorney on Keller’s case and advise him that Keller was cooperating with the government in prosecuting appellant. Appellant asserts that this new evidence puts Keller’s testimony in a new light. The court below, after a hearing on the matter, did not agree with appellant.

Newly discovered evidence justifies a new trial only if that evidence is “. . . of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.” Tropiano v. United States, 323 F.Supp. 964, 966 (D.Conn.1971); United States v. On Lee, 201 F.2d 722 (2d Cir.), cert, denied, 345 U.S. 936, 73 S.Ct. 798, 97 L. Ed. 1364 (1953). Assuming, arguendo, that appellant’s claims are true, we are convinced that this evidence does not meet this standard. Significantly, Keller testified to the grand jury and gave statements to the police before his arrest which verify his testimony at trial. It is unlikely that any damage to Keller’s credibility which this evidence might have worked would have been enough to outweigh the evidence pointing to appellant’s guilt.

Finally, Houle argues that the prosecutor’s failure to disclose to him the facts of Keller’s arrest and the conversation concerning the pending prosecution must upset the verdict under the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, this is not a case of purposeful nondisclosure. The prosecution argues that it did not disclose these facts to appellant because it had no duty to do so, as the arrest was a matter of public record and as the evidence was not exculpatory since the arrest was inadmissible under United States v. Acarino, 408 F.2d 512, 515 (2d Cir.), cert, denied, 395 U.S. 961, 89 S.Ct. 2101, 23 L.Ed.2d 746 (1969) , and the conversation was innocuous. While the prosecutor may be correct in these characterizations, it is not for him to make these judgments. Still, this is not an instance of “ . . . deliberate suppression with purpose to obstruct the defense . . . [nor is it! a failure to disclose evidence whose high value to the defense could not have escaped the attention of the prosecution.” United States v. Bonanno, 430 F.2d 1060, 1063 (2d Cir.), cert, denied, 400 U.S. 964, 91 S.Ct. 366, 27 L.Ed.2d 384 (1970) . This nondisclosure must therefore be governed by the test of “. . . whether . . . there was a significant chance that this added item, developed by skilled counsel . could have induced a reasonable doubt in the minds of enough jurors to avoid a conviction.” United States v. Miller, 411 F.2d 825, 832 (2d Cir. 1969). Unlike our dissenting brother, we conclude that in view of the factors noted above the evidence could not have induced such doubt.

B. Appellant Diodato

Appellant Diodato’s first contention on appeal is the same as that of appellant Houle. We reject it because there was sufficient evidence introduced below from which the jury could infer Diodato’s knowledge that the goods were moving in interstate commerce. The jury could have concluded that Diodato knew that Bison Ramp is an interstate facility from Diodato’s contacts with Houle and from his position in the trucking business. Moreover, the jury could have concluded that Diodato discovered that the particular shipment was from outside the state when he asked Houle for details of the shipment.

Appellant’s next argument is the same as Houle’s second point.

We must also reject appellant’s contention that he is entitled to a new trial because of newly discovered evidence. Appellant claims that statements made by Ring at the hearing on Dioda-to’s motion for a new trial contradict Ring’s testimony at trial and that reversal is required by Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L. Ed.2d 104 (1972). At trial, Ring testified that he pleaded guilty to a lesser charge for which he had not yet been sentenced, but he denied that he had been told that his plea was permitted in return for his testimony against Dioda-to. At the hearing, Ring stated nothing to the contrary. The only evidence which supports appellant’s position is one sentence in the government’s brief in opposition to the motion for a new trial to the effect that the government, before trial, “furnished the consideration for Ring’s testimony.”

It appears that the only “consideration” known to Ring was his expectation of leniency in sentencing. Since Ring testified at trial that he hoped to receive such leniency, we think that Ring’s motivation was squarely before the jury and that appellant has demonstrated no untruthfulness in Ring’s testimony.

Finally, appellant objects to the refusal of the court below to allow him to question the prosecuting attorney at the hearing on appellant’s motion for a new trial. The court refused this request in light of appellant’s inability after questioning several other witnesses to show any evidence of an undisclosed agreement between the prosecution and Ring. We find no error in this ruling. At this stage in the criminal process, appellant must demonstrate some substance to his claim before he is entitled to call someone as a witness. Dirring v. United States, 353 F.2d 519 (1st Cir.), cert, denied, 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052 (1964).

C. The Charge

The most troublesome issue in this ease is one that appellants do not raise on appeal. In its charge to the jury, the court below failed to state that knowledge that the stolen goods were in interstate commerce is an element of the conspiracy offense. Defense counsel excepted to the chárge, that knowledge was not necessary, but the charge, and the objection were apparently directed solely to the substantive count, as to which the charge was correct.

The omission in the charge constituted “plain error,” Fed.R.Crim.P. 52(b), which we must notice regardless of counsel’s failure to clarify the basis of the objection and to pursue the matter on appeal. United States v. Alsondo, 486 F.2d 1339 (2d Cir., 1973). While we are satisfied that a jury could infer appellants’ knowledge that the shipment was in interstate commerce from the evidence introduced, knowledge was an essential element of the crime of conspiracy. The existence of that essential element the jury never determined.

Of course, the defect in the charge does not disturb the verdict on the substantive count, in which knowledge of the interstate nature of the stolen goods is not an element.

We affirm the conviction of each appellant on the substantive count and reverse the conviction of each appellant on the conspiracy count and remand for new trial on that count.

Since it is possible that conviction on both counts influenced the determination of the quantum of the concurrent sentences, we leave it open to the court to consider modification of sentence on the substantive count, if so advised, without, however, any intimation that the sentence as imposed was in any way excessive.

OAKES, Circuit Judge

(concurring in part and dissenting in part):

It is difficult to fathom from the majority opinion to what it is referring when it says,

Still, this is not an instance of “. . . deliberate suppression with purpose to obstruct the defense . [nor is it] a failure to disclose evidence whose high value to the defense could not have escaped the attention of the prosecution.”

If, as I believe, the majority is referring to the prosecutor’s omission to tell the defense about the arrest of the witness, Keller, and the pending prosecution of him in the state courts of New York, I of course agree as far as the opinion goes, but as indicated below think it does not reach the critical question. If, on the other hand, the majority opinion is referring to the prosecutor’s failure to disclose to the defense that Keller and the Assistant United States Attorney had had a discussion with reference to the pending state charges as a result of which the Assistant United States Attorney agreed to tell the local District Attorney that Keller was cooperating with the Federal Government in its prosecution, and that indeed the Assistant United States Attorney carried out his commitment to Keller in this regard, then I must disagree, for reasons also set out below.

If I am correct that the majority opinion in the language above quoted is not referring at all to the Assistant United States Attorney’s agreement with Keller and subsequent call, helpful to Keller, to the local District Attorney, then the majority does not anywhere consider the question whether or not this was an instance of deliberate suppression or a failure to disclose evidence the high value of which to the defense was obvious. It seems to me that the impeachment value of such information was obvious to the prosecution, and in light of the critical nature of Keller’s testimony to the case against Houle, there was “a significant chance that this added item [the prosecutor’s agreement with Keller and subsequent telephone call], developed by skilled counsel ., could have induced a reasonable doubt in the minds of enough jurors to avoid a conviction.” United States v. Miller, 411 F.2d 825, 832 (2d Cir. 1969).

Therefore, I would reverse and remand for a new trial on the substantive count also as to appellant Houle.


source: Caselaw Access Project

author: ALDRICH, Senior Circuit Judge.

license: Public Domain

text:
    CIA. MARITIMA SAN BASILLIO S.A. as owners of the S.S. EURYMEDON, Plaintiff-Appellant, v. SHELL CANADA LTD. et al., Defendants-Appellees. SHELL CANADA LIMITED as owner pro hac vice of the S.T. EMERILLON, Plaintiff-Appellee, v. CIA. MARITIMA SAN BASILLIO et al., Defendants-Appellants.
    Nos. 73-1291, 73-1292.
    United States Court of Appeals, First Circuit.
    Argued Dec. 3, 1973.
    Decided Jan. 10, 1974.
    Kenneth H. Volk, New York City, with whom Preti & Flaherty, Portland, Maine, Burlingham Underwood & Lord, New York City, and Martin R. Johnson, Portland, Maine, were on brief, for appellants.
    Benjamin Thompson, Portland, Maine, with whom Thompson, Willard, Smith & McNaboe, Portland, Maine, Haight, Gardner, Poor & Havens, Gordon W. Paulson, New York City, James P. Lansing, and David P. Cluchey, Portland, Maine, were on brief, for appellees.
    Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
   ALDRICH, Senior Circuit Judge.

In these cross libels arising out of a crossing collision in Maracaibo channel, Venezuela, on the night of March 2-3, 1970, the appeals present a single question, whether the court erred in finding appellant’s vessel the only one at fault. This requires a detailed consideration of the evidence, having in mind the heavy burden that is upon appellant that we be firmly convinced that a mistake has been made, McAllister v. United States, 1954, 348 U.S. 19, 75 S. Ct. 6, 99 L.Ed. 20; O’Connor v. Venore Transp. Co., 1 Cir., 1965, 353 F.2d 324, 326. Appellant’s vessel was the freighter EURYMEDON, 480 feet long, 61 foot beam, bound in; appellee’s the tanker EMERILLON, 710 feet long, 96 foot beam, bound out. The vessels collided at approximately right angles. It is undisputed that had EMERILLON arrived at the point of collision only a matter of seconds later, no collision would have occurred.

Relevant facts found by the court (verbatim, or summarized) are as follows.

“5. The Maracaibo channel is a dredged channel approximately 1,000 feet in width, which extends out about twelve miles from the coast of Venezuela from Lake Maracaibo into the Gulf of Venezuela. The channel axis is 009° for outbound vessels and 189° for inbound vessels. The entrance to the channel is marked by Buoy ‘EM,’ a fairway buoy situated directly on the center axis of the channel one and one-half miles beyond Buoys B1 and B2 at the outer end of the dredged channel. EM Buoy has a flashing white light. The dredged channel is marked by buoys at one-mile intervals on either side of the channel, all the way in to the shore. The buoys are equipped with flashing lights, white for the odd numbered buoys on the easterly side, and red for the even numbered buoys on the westerly side.

On the night of March 2-3, 1970, B2 was in place and its light was functioning, but several of the other channel buoys were absent, or extinguished. It was dark, but the weather was clear and the visibility good. The wind was east by north, force 4. EMERILLON was being navigated by her relief master, Captain Lough, well experienced in this particular route. He was assisted by third officer Wilkins, less, but adequately, familiar therewith. EMERILLON proceeded at 12 knots, continually checking her position in the channel by the buoys. She first saw what proved to be EURYMEDON’S lights about 8 miles away to the northeast, apparently heading for the EM fairway buoy. EURYM-EDON, proceeding at 12 knots, reached that buoy just as EMERILLON was passing B6. [That is, EMERILLON was 2 miles short of B2, and EURYM-EDON, at EM, was 1½ miles beyond. See Finding 5, ante.] Because EM’s light was briefly eclipsed, it was apparent to EMERILLON that EURYM-EDON had passed close to and in front of it. At this point EURYMEDON turned, but, because she was light, the combined weather conditions (the court found) slowed her turn and she proceeded to the west of the channel entrance. “In an effort to regain the channel, she executed a sweeping port turn and eventually was heading back in an easterly direction toward the channel entrance.” [viz., toward B2.]

“12. At about 0109-0110, when the master of EMERILLON observed that EURYMEDON was heading back toward the east about to cross the channel across EMERILLON’S bow, and when EURYMEDON was on the port bow of EMERILLON, distant about a mile, showing her green light, EMER-ILLON sounded five short blasts on her whistle, the danger signal, and seconds later heard two faint blasts from EURYMEDON.

In the meantime EURYMEDON, whose officers had not been to Maracaibo before, and were apparently misled by the absence of a number of the channel buoys, had become seriously confused on her port turn, to the extent of thinking EMERILLON was out of the channel. She sounded a 2-blast signal to EMERILLON, indicating a further port turn, Rule 28(a), 33 U.S.C. § 1090(a), and stopped her engines at 0109. Upon hearing EMERILLON’S 5-blast signal, which she mistakenly thought was two blasts, she “resumed speed in steps going from slow ahead to half ahead to full ahead at 0111 and altered [her] course further to port.”

“14. At this time, about 0111, the master of EMERILLON, observing EURYMEDON continuing to swing in an easterly direction, sounded a second danger signal of five short blasts, put his engine on standby and in rapid succession ordered slow ahead, full astern and emergency full astern, and gave hard starboard rudder. It was at this time that EMER-ILLON first realized that EURYME-DON was not going to enter the channel on the channel course and that there was a risk of collision.
“15. When the starboard bow of EU-RYMEDON was approaching Buoy B2, with her watch officer attempting to identify the Buoy by Aldis lamp, and when the two vessels were about one-third of a mile apart, EURYME-DON’S master again sounded a two-blast signal and immediately thereafter heard what he again erroneously thought was a two-blast reply from EMERILLON. He then put EU-RYMEDON’S rudder at hard port, and in rapid succession ordered half ahead, full ahead and emergency full ahead. The time was approximately 0111. When the master observed the stem of EMERILLON approaching amidships of EURYMEDON, he ordered hard starboard rudder, the order was executed, and EURYMEDON started to turn to starboard.
“16. The bow of EMERILLON came into contact with the starboard quarter of EURYMEDON at 0113 at an angle of approximately 88° between the starboard sides of both vessels. The place of collision was northerly of a line between Buoys B1 and B2.

By deposition on April 3, 1970, Captain Lough testified, inter alia, that when he first saw the lights of what proved to be the EURYMEDON she bore NE, about eight miles away; that he concluded she was “heading towards EM buoy to enter the channel”; that under local rules “[a]n inbound vessel is supposed to keep clear of the outbound vessel and not to enter the channel until . the outbound vessel is clear of the channel,” and that both inbound and outbound vessels are supposed to leave the EM buoy to port; that EU-RYMEDON passed the EM buoy when EMERILLON was at B6, and instead of turning into the channel she continued westerly, making a sweeping U-turn to port, “and came back heading in an easterly direction somewhere between B2 and EM buoys”; that when EURY-MEDON “approached what [he] considered was going to be a dangerous” (section or situation) he gave her a 5-blast danger signal; that he was then between B4 and B2; that in a matter of seconds he heard two blasts from EURYME-DON ; that he gave another five short blasts and ordered emergency full astern and the helm put to starboard; that EURYMEDON “carried straight on across the channel and across [EMERIL-LON’S] bow in an easterly direction.”

On cross examination the witness stated that at the point of contact he was slightly to his side of the channel; that EURYMEDON had initially gone to the west; that when “he appeared to be trying to come in here I gave him the [first] five to warn him away. But he continued on. [H]e was trying to come this way.” “Q. To the north of B2 and then to starboard; is that right? A. Yes.” He testified that he had been conning at the center window; that he ordered the third officer to sound the first danger signal; that he walked over and sounded the second one himself while the officer was telegraphing full astern and the helmsman was putting the helm over; that he ordered the first danger signal three or four minutes before the collision, when EURYMEDON was “pretty close to a mile ... on the port bow,” her green light showing; that the second danger signal was about two minutes before the collision when she was “close to [half a mile] . . . coming ahead just fine on my port”; that her range lights were open; that her course was roughly easterly, speed about 12 knots; that the only signal he heard from her was a 2-blast signal between his two danger signals; that he did not hear a second 2-blast.

EMERILLON’S third officer Wilkins testified by deposition on May 13, 1970. Pertinent portions of his testimony will be referred to later.

Discussion — The Issue

Appellant makes an extensive argument to the effect that EURYMEDON was not the burdened vessel, initiating with the circumstance that as she originally approached the EM buoy EMERILLON was on her port hand. Rule 19, 33 U.S.C. § 1081. There are too many reasons why EURYMEDON was the burdened vessel for us to pause over this. However, we hold to the view, irrespective of which is the privileged vessel, that there is a burden of explanation on both vessels when a substantial collision occurs in clear weather with apparently ample opportunity for avoidance available to both. See Sawyer v. McDonald, 5 Cir., 1948, 165 F.2d 426, 429; The West Hartland, 9 Cir., 1924, 2 F.2d 834, 836-837; The Coamo, 2 Cir., 1922, 280 F. 282, 283; Young-Tsze Ins. Ass’n v. Furness, Withy & Co., 2 Cir., 1914, 215 F. 859, 864-865, cert, granted 238 U.S. 634, 35 §.Ct. 938, 59 L.Ed. 1499, pet’n for cert, dismissed, 242 U.S. 430, 37 S.Ct. 141, 61 L.Ed. 409. Although the district court discussed the evidence in great detail bearing on its finding of fault on the part of EURYM-EDON, it did not follow this course in evaluating EMERILLON’S actions. Indeed, it made only one finding that related to this issue — that only at the time of the second danger signal did EMER-ILLON realize that there was a risk of collision. Finding 14, ante. To this it added Conclusion of Law 5, as follows.

“5. EMERILLON was not in any way at fault in this collision. The actions taken by her when it became apparent that a collision was imminent were taken under conditions in ex-tremis in an effort to avoid impending collision. She cannot be faulted for these actions. The Genesee Chief v. Fitzhugh, 53 U.S. 12 How. 443, 461 [13 L.Ed. 1058] (1851); The Favori-ta, 85 U.S. 18 Wall. 598, 603 [21 L.Ed. 856] (1873); Rule 27 of the International Regulations, 33 U.S.C. § 1089.”

Except insofar as the first sentence of this ruling bears on the issue we are considering, Conclusion 5 relates to conduct allegedly taken, or not taken, by EMERILLON following her sounding the second danger signal. The evidence fully warrants the court’s disposition as to this. However, the in ex-tremis rule does not apply to relieve a vessel from the consequences of any negligent conduct that was the cause of its being put in extremis. Bucolo, Inc. v. S/V Jaguar, 1 Cir., 1970, 428 F.2d 394, 396; United States v. M/V Wuerttemberg, 4 Cir., 1964, 330 F.2d 498, 504; Tidewater Assoc. Oil Co. v. The Syossett, 3 Cir., 1953, 203 F.2d 264, 268. This raises in the present case a vital question not articulated by the court. The issue is not when in fact “EMER-ILLON first realized the EURYMEDON was not going to enter the channel on the channel course and that there was a risk of collision,” but whether, in the exercise of due care, she should have realized sooner a substantial possibility of risk. See The Senator Rice, 2 Cir., 1915, 223 F. 524. Even if we interpret the court’s ruling that EMERILLON was not at fault as implying a finding in EMERILLON’S favor on this basic question, the evidence we have from her own witnesses is sufficiently provocative to call for a detailed consideration of the warrantability of such finding.

Discussion — The Resolution

Unfortunately, we have to approach this question not only in the absence of fuller findings by the court, but in the face of a seeming misstatement, and two conflicting findings. To begin with the former, Finding 12 recites that at 0109 Captain Lough saw that EURYMEDON was “heading back toward the east about to cross the channel across EMERILLON’S bow.” If that were literally true, it would be manifestly unreasonable for Lough to envisage no risk of collision until two minutes later, when, with the vessels only a third of a mile.apart (Findings 14 and 15), EU-RYMEDON was continuing into an inevitable contact. This literal meaning of Finding 12, however, is not borne out by the evidence. The finding as to the direction EURYMEDON was heading was amply warranted, but when EURYM-EDON was that far from the mouth of the channel, no one but a seer could tell whether she intended to cross it when she reached it, or to turn into it. Captain Lough testified he believed she intended the latter, and as we shall discuss later, there is every reason to credit him. We will therefore construe the words “about to” in Finding 12 as “on a course that would.”

Secondly, in two separate findings the court gave two different distances for the same circumstance. Finding 12 states that Captain Lough sounded his first danger signal when the vessels were “distant about a mile and seconds later heard two faint blasts from EURYMEDON.” In Finding 13 the court stated that EURYMEDON sounded this signal when EURYMEDON was approaching Buoy B2” and EMER-ILLON was “about two miles away.” Since the collision occurred north of B2, EMERILLON could not have been two miles away when EURYMEDON was already approaching the buoy; EMERIL-LON was two miles from B2 back when EURYMEDON was passing EM, heading westerly. Nor, wherever they were, could the vessels have been two miles apart when the first signals were given.

These findings, the absence of certain other findings, and certain physically impossible testimony of third officer Wilkins, make it initially difficult to grasp the picture, and have caused the parties to lead us down a number of cul-de-sacs. We find, however, taking the court’s basic findings as guideposts, and the testimony of Captain Lough which comports with them to fill in the interstices, that a resolution may be achieved.

Captain Lough did not state the angle that EURYMEDON bore off his port bow when he blew the first danger signal, nor did the court. But whatever it was, and whatever the distance, EURYM-EDON was already showing only her green light, with her range lights open, revealing that she was on a crossing course — a situation that the testimony and the court’s findings indicate never changed thereafter. EMERILLON was on a course to pass east of B2 and Captain Lough concluded, reversing his asserted previous opinion that EURYME-DON was going to wait outside, that she was planning to enter the channel north around B2, viz., also eastward of the buoy. He “gave him the five to warn him away,” that is, to turn away to starboard. It was at once apparent, both from EURYMEDON’S 2-blast signal, and her “continu[ing] on,” that EURYM-EDON did not adopt EMERILLON’S suggestion. It did not follow, however, as appellant urges, that there was an immediate risk of collision. Even if EMERILLON and EURYMEDON were to arrive at the channel mouth simultaneously, with EMERILLON slightly to her own side of the channel, by hugging the buoy EURYMEDON could leave 400 feet or more between EMERILLON and herself. We could not take judicial notice, in the absence of expert testimony, that this would be too close.

However, EURYMEDON, 480 feet long, to turn from an easterly course to enter the channel on a southerly one, close to the buoy, would have to start her turn well before reaching it. When the vessels had progressed to what the court understated as a third of a mile apart, (Finding 15) Captain Lough concluded, from EURYMEDON’S failure to start her turn, that she was not going to turn, or, as the court put it, “was not going to enter the channel on the channel course and that there was a risk of collision,” (Finding 14). In other words, only then did Lough believe that EURYMEDON, instead of entering the channel, was going across it.

This brings us to the vital question of due care. On all the evidence we cannot, with the requisite firmness, conclude that the district court erred in its implied, but necessarily implied, finding that Lough was not at fault for not sooner thinking that EURYMEDON was planning such a course. To a degree a vessel may assume that the other vessel will act reasonably. See The Victory & The Plymothian, 1897, 168 U.S. 410, 426-427, 18 S.Ct. 149, 42 L.Ed. 519. In this ease, for EURYMEDON to continue eastward across the mouth of the channel, quite apart from the danger, as well as the breach of Rule 19, 33 U.S.C. § 1081, involved in crossing EMERILLON’S bow, would make no possible sense. Inspection of the chart shows she would be heading to nowhere. Whatever carelessness EURYMEDON had previously demonstrated, EMERIL-LON, even if she was not the holding on vessel prima facie required to maintain course and speed (Rule 21, 33 U.S.C. § 1083), would know that EURYMEDON had no reason to cross the channel, and every reason to turn south, and out of her way, when she drew near to the channel entrance.

If Captain Lough had been at fault in not realizing sooner that EURYMEDON was not going to turn, we could not regard such a fault as either exiguous, or in extremis. See United States v. M/V Wuerttemburg, ante; A. H. Bull S.S. Co. v. United States, 2 Cir., 1929, 34 F. 2d 614. However, although better directed findings by the district court as to EMERILLON’S faultlessness would have been helpful, we find no reason to reverse.

Affirmed.

      . This meant that EURYMEDON left EM to starboard, instead of to port as required by local rules. The court found this to be a “fatal error.” It is hard for us to regard this as an error of any consequence, and during oral argument we sought to persuade EMERILLON’S counsel to that effect. He resolutely resisted. Consequently, we accepted tlie court’s conclusion. By the same token, however, from the time EURYME-DON passed the EM buoy EMERILLON’S officers, who testified to EURYMEDON’S fault, were on notice that she was being improperly operated.

      . Rule 28(b), International Regulations for Preventing Collisions at Sea, 33 U.S.C. § 1090(b).

      . The exhibit on which this finding is based shows that the engines were fully stopped for only 15 seconds. In view of EURYME-DON’S size, and in the total absence of testimony from any witness, we will not assume that this brief diminution of power had a noticeable effect on her way.

      . The confusion with respect to sound signals can only be explained by the fact that the two vessels sounded them almost simultaneously and the sound of EURYMEDON’S whistle partially blanketed the sound of EMERILLON’S whistle for those aboard EURYM-EDON. See, e. g., Hess Tankship Co. v. S.S. M.L. Gosney, 230 F.Supp. 1, 2-3 (E.D. Va.1963).”

      . Our reference to these rules supports only the first half of Captain Lough’s pronouncement. Moreover, it would seem little short of absurd that one should have to wait for a 12 mile channel 1000 feet wide to clear before one could enter. We note further, as against Captain Lough’s testimony that he had originally expected EURYMEDON to abide by this alleged rule, that EMERILLON had just passed an inbound tanker without even having to slow down.

      . Wilkins’ opinion that at the time of the first danger signal EURYMEDON bore 45° off the bow and was 1% miles west of the channel is demonstrably impossible within the total time span. Even if that were possible, elementary calculation shows Wilkins could not be correct in saying that between the first signal and the second, EURYME-DON’S bearing changed from 45° to 20°.

      . See also n. 3, ante.

      . Captain Lough said about a half mile apart, and as a matter of calculation from subsequent events he must have been correct. On right angle courses at 12 knots the vessels would close one third of a mile in 72 seconds rather than two minutes. If, as we suspect, Lough’s estimate of EURYMEDON’S course was loose, and the angle was more oblique, they would close even quicker. The actual distance, however, is not important, in the absence of evidence that by that time it was too late for EURYMEDON to turn into the channel. In point of fact, mishearing EMERILLON’S signal, she turned the other way.


author: PER CURIAM:

text:
    Larry L. TILLERY, #28355-120, Petitioner-Appellant, v. Richard W. WEITZENFELD, as Sheriff of Manatee County, Florida, et al., etc., Respondents-Appellees.
    No. 73-2632
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 20, 1974.
    Robert H. MacKenzie, Tampa, Fla. (Court-appointed), for petitioner-appellant.
    John J. Blair, State’s Atty., Braden-ton, Fla., Richard W. Seymour, Sarasota, Fla., for respondents-appellees.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

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

   PER CURIAM:

We find ourselves, because of an incomplete record and summary disposition below, unable to rule in this appeal and accordingly vacate the district court order denying a petition for writ of ha-beas corpus and remand for further proceedings.

After being charged, convicted for breaking and entering and sentenced to a term of five years in state confinement by a Florida court in Manatee County on July 12, 1971, the petitioner was delivered to authorities in an adjoining county, Sarasota, for prosecution on an additional state charge pending there, the offense there charged also being breaking and entering. He escaped from the Sarasota County jail and was arrested a day or so later December 11, 1971 by federal officers at the Tampa, Florida International Airport under a federal warrant charging unlawful flight to avoid prosecution based on the escape from jail. Title 18, U.S.C. Sec. 1073. He was lodged in the Hillsbor-ough County Jail at Tampa, Florida as a federal prisoner and the Sarasota County authorities were notified. Neither Sarasota nor Manatee County, nor State of Florida officials took any step to attain his custody. If any of these authorities have later attempted to secure his custody, there is nothing in the record before us to indicate that.

Based on an altercation with arresting officers at the Tampa airport, and resistance to their arrest, petitioner was charged by indictment in the U. S. District Court for the Middle District of Florida with (1) attempting to escape from the custody of the Attorney General or his authorized representative, Title 18, U.S.C. Sec. 751(a), and (2) impeding a deputy United States Marshal in the performance of his official duties, Title 18, U.S.C. Sec. 111. He pled guilty to these charges and was, on April 21, 1972 adjudged guilty and sentenced by a judge of that court to concurrent three year confinement sentences. The commitment also specified that “the sentence imposed herein shall run concurrently with the State sentence he is now serving.” The petitioner is presently confined at the United States Penitentiary, Terre Haute, Indiana under this commitment. Below he sought habeas relief from the Florida detainers lodged with the federal prison authorities. The appeal is from denial of the petition.

Tillery’s petition asserts the right to be discharged from the Manatee County sentence and from the Sarasota County charge. He has made some efforts to exhaust state remedies, sketchily indicated in the record by his letters (and attachments thereto) to the court below and its magistrate, and amplified outside the record by court-appointed counsel’s brief. If he has in fact exhausted state remedies he is entitled to a hearing to determine whether he should be discharged from one of the Florida de-tainers, the one based on pending Sarasota County charges, under a line of authorities developed by the Supreme Court of the United States dealing with state delay in providing speedy trial to prisoners serving sentences in other jurisdictions.

Under Local Rule 18 of the Middle District of Florida, petitions for habeas corpus routinely are initially assigned to a magistrate of that court for attention. The magistrate here issued a rule requiring the two Sheriff respondents to reply to the petition, which was couched both in habeas corpus and mandamus terms, within 20 days and to show cause why the writ of habeas corpus should not be issued. As indicated, supra, note 1, only the Sheriff of Manatee County responded, and he disclaimed any interest in or authority over the petitioner.

Thereafter the magistrate examined the petition, and recommended its denial on the narrow basis that Florida had never relinquished custody to federal authorities. The petition was denied by the district court on the same basis and this appeal ensued, the district judge granting a certificate of probable cause under F.R.App.P. 22(b) and allowing the appeal to proceed in forma, pau-peris. While this decision disposed of the attack on the Manatee County conviction, it left undecided the questions attempted to be raised as to the pending Sarasota County charges.

On the record presented the only determination we are able to reach is that the record brought here is of no value in weighing the merits of that portion of this appeal. We vacate the judgment below and remand to the district court with directions to reconsider the petition as to both detainers.

The Director, Florida Division of Corrections, should be added as a Respondent and directed to attach to his Response a complete record of all state court post conviction proceedings in the Circuit Courts of Manatee and Sarasota Counties, Florida, the Second District Court of Appeals of Florida and the Supreme Court of Florida.

The district court should then determine on the basis of such records whether or not all available state remedies have been exhausted by the petitioner, or in the alternative whether circumstances exist rendering the available state process ineffective. Title 28, U.S. C. Sec. 2254(b) and (c). If further state remedies are available the petition may be dismissed without prejudice.

Should the district court determine that state remedies have been exhausted or are no longer available, an eviden-tiary hearing in that court may or may not be required. If one is held, the procedures outlined in Title 28, U.S.C. Sec. 2254(d) and (e) should be adhered to.

In order that these steps may be undertaken the judgment appealed from is vacated and this cause is remanded to the district court.

Vacated and remanded with instructions.

      . Klopfer v. North Carolina, 1967, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1; Smith v. Hooey, 1969, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607; Dickey v. Florida, 1970, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26; Barker v. Wingo, 1972, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. Hoskins v. Wainwright, 5 Cir. 1971, 440 F.2d 69; 5 Cir. 1972, 472 F.2d 158 (vacated 485 F.2d 1186, 1187) ; 5 Cir. 1973, 485 F.2d 1186, is an instructive example of the proper application of the principles developed by the Supreme Court in the cited cases.
      Of course, impermissible delay in prosecution would apply only to the pending Sarasota County charges. It appears at least from the petition that the present detainers are based upon both the pending Sarasota County charge and also upon the Manatee County conviction.
      The only Florida authority to respond to the petition in the district court, the Manatee County Sheriff, asserted that he had parted with custody of Tillery when he transported him to Sarasota County under court order, and that he has no process whatsoever pending against the petitioner.
      This response might have inspired the district court or its Magistrate to add as a respondent the Director of the Florida Department of Corrections, but it did not.
      No brief has been filed before us by either Sheriff appellee, or by any state authority, although counsel appointed by this court to represent appellant here has produced an excellent brief.

        The claim of Tillery as to the Manatee conviction is that Florida relinquished all claim to him when it failed to take custody upon his arrest and incarceration in the Hills-borough County Jail, Tampa, Florida. This claim was dealt with on the merits adversely to Tillery by the magistrate and district court below on the basis of the established right of the two sovereigns to arrange custody without consulting a prisoner. At any event, the sentence from Manatee County is being served by Tillery in the federal penitentiary under the terms of his federal commitment of April 21, 1972. See text, supra.

      . The magistrate treated the petition as one for habeas corpus only.

      . The record contains no indication, other than the bare statements, not backed by findings, that custody was not relinquished, that either the magistrate or the district judge gave consideration to the question of whether Florida has demonstrated the lack of interest in Tillery requisite to establishing a waiver of jurisdiction. See Shields v. Beto, 5 Cir. 1967, 370 F.2d 1003; Bilton v. Beto, 5 Cir. 1968, 403 F.2d 664; Bullock v. Mississippi, 5 Cir. 1968, 404 F.2d 75; Montos v. Smith, 5 Cir. 1969, 406 F.2d 1243; Dorrough v. State of Texas, 5 Cir. 1971, 440 F.2d 1063; Holtzinger v. Estelle, 5 Cir. 1974, 488 F.2d 517.


author: GODBOLD, Circuit Judge:

text:
    CITY OF NAPLES, Plaintiff-Appellee, v. The PREPAKT CONCRETE COMPANY and American Employers’ Insurance Company, Defendants-Appellants.
    No. 73-1367.
    United States Court of Appeals, Fifth Circuit.
    Feb. 22, 1974.
    Rehearing Denied May 23, 1974.
    See 494 F.2d 511.
    Mark Hicks, Miami, Fla., for American Employers’ Ins. Co.
    John C. Ausley, Tallahassee, Fla., Leslie Hynes, New York City, for Prepakt Concrete Co.
    Carl R. Pennington, Jr., Tallahassee, Fla., Charles K. Allan, Naples, Fla., for plaintiff-appellee.
    Before THORNBERRY, GODBOLD and CLARK, Circuit Judges.
   GODBOLD, Circuit Judge:

Prepakt, an Ohio corporation, and the City of Naples, Florida, entered into a contract that contained an arbitration clause. The contract did not specify the place where arbitration hearings, should they become necessary, would be held, but it implied that any dispute over locale was to be decided by the American Arbitration Association. When a dispute arose the City sued Prepakt and its surety, American Employers’ Insurance Company, in state court in Florida. Prepakt removed the case to the United States District Court for the Southern District of Florida and there successfully moved to stay the City’s suit and to compel arbitration.

Prepakt’s motion did not state where arbitration was to take place nor did the District Judge’s order specify a locale. Prepakt wanted to arbitrate in Cleveland, Ohio, but the City did not. The American Arbitration Association directed, over the City’s objection, that the arbitration take place in Cleveland. The arbitration proceeded there and the arbitrators awarded Prepakt $90,000.

The statute empowering federal courts to compel arbitration states that the “hearing and proceedings shall be within the district in which the petition for an order directing such arbitration is filed.” 9 U.S.C. § 4 (1970). After arbitration was completed, however, different sections of the federal arbitration statute came into play, stating that an application to confirm the award “may be made to the United States court in and for the district within which such award was made,” id. § 9, and that under appropriate circumstances, upon application of a party to the arbitration, the United States court in and for the district in which the award was made may vacate, modify, or correct an award. Id. §§ 10,11.

Pursuant to § 9, Prepakt moved the District Court for the Northern District of Ohio to confirm the award. At this point the City returned to the District Court in Florida, called the Judge’s attention to § 4, and secured an injunction against further proceedings in the matter in any United States court other than the District Court for the Southern District of Florida. Prepakt appeals from that injunction.

Prepakt argues that the Florida federal court departed from the federal arbitration statute by issuing an injunction and thus taking jurisdiction over the parties’ dispute as to the correctness of the award. It urges that §§ 9-11 confer jurisdiction to confirm, vacate, modify, or correct an award exclusively upon the District Court in Ohio. As to the setting of a locale different from that of the arbitration-compelling court, in arguable conflict with § 4, Prepakt insists that the City waived its right to object by waiting too long to bring § 4 to the attention of the District Judge in Florida.

The City frames the issues differently. Arguing that there is a stayed but still pending suit in the District Court in Florida, it insists that nothing has happened to divest that court of jurisdiction to enjoin proceedings elsewhere. Moreover, if the award is reviewed in Ohio rather than Florida, argues the City, it will be necessary to press appeals in two circuits in order to secure appellate review of the Florida District Court’s threshold actions — denying the City’s motion to remand to state court, staying the contract suit, and compelling arbitration — as well as of the Ohio District Court’s decision on the merits of the award.

Section 4’s statement about the proper locale for an arbitration hearing compelled by a federal court is analogous to a venue provision, and thus is waivable. We hold that by agreeing in an arm’s length commercial contract to abide by the A.A.A.’s decision as to arbitration locale in cases of dispute, see note 1 supra,, the City waived its right to oppose an Ohio locale.

The City may be technically correct in urging that the federal court in Florida retained jurisdiction over the stayed lawsuit. Nevertheless, in view of § 9’s command, and for reasons of judicial restraint and comity, the District Judge should have declined to enjoin the confirmation proceeding in the Ohio District Court. See Reed & Martin, Inc. v. Westinghouse Elec. Corp., 439 F.2d 1268, 1272-1273 (C.A. 2 1971). The arbitration hearing had lawfully taken place in Ohio, because of the City’s waiver of the § 4 venue designation. Diversity of citizenship existed and more than $10,000 was in controversy. Therefore, under § 9, the Ohio District Court was the proper court to confirm, vacate, modify, or correct the arbitration award. See id. at 1276.

We are Pot persuaded by the City’s insistence that it will have to appeal in two circuits in order to secure review of all the issues in the case. The stay order and arbitration order were appealable. Since the time for appealing them has long since run out, the City has lost its right to have them reviewed. The denial of the motion to remand, although it would not have been immediately appealable standing alone, nevertheless was reviewable in conjunction with the stay and arbitration orders. See Peters v. Standard Oil of Texas, 174 F.2d 162, 164 (C.A.5 1949). Thus time has run out on it, too.

Finally, we are unpersuaded by the City’s insistence, see footnote 4 supra, that its action against Prepakt’s surety in the Southern District of Florida somehow survives. The surety’s liability is contingent upon Prepakt’s liability. Since the arbitrators absolved Prepakt and entered an award in its favor, the issue of the surety’s liability is necessarily extinguished too, unless, of course, the District Court for the Northern District of Ohio should modify the award in such a way as to hold Prepakt liable.

The injunction of the District Court for the Southern District of Florida is vacated with direction that the arbitration record be transmitted to the District Court for the Northern District of Ohio.

      . The contract incorporated by reference the Construction Industry Arbitration Rules of the American Arbitration Association, which give the A.A.A. power to determine locale in cases of disagreement.

      . The District Court had before it several documents showing that this was the locale contemplated by Prepakt.

      . The court also commanded that the arbitration record be transmitted to it, presumably for confirmation, vacation, modification, or correction.

      . The City buttresses its position by urging that since Prepakt’s surety, American Employers’ Insurance Company, refused to appear or participate in the arbitration proceedings, the issue of the City’s rights against the surety is still before the District Court in Florida.

      . Cf. Farr & Co. v. Cia. Intercontinental de Navegacion, 243 F.2d 342 (C.A.2 1957), in which the Second Circuit held that a party’s contractual agreement to arbitrate in a particular place gave the federal district court of that place (assuming it already had subject matter jurisdiction) in personam jurisdiction for purposes of compelling the party under § 4 to arbitrate. In the present case the contract specified no particular place, but the parties designated a method for choosing a place. See note 1 supra.

      The City urges that Prepakt could have secured an Ohio arbitration locale without fear of transgressing § 4 by petitioning in the federal district court in Ohio to compel arbitration, and that by not having done so Pre-pakt in effect chose Florida as the locale for arbitration (and by implication for review of the award under §§ 9-11). But locale, if disputed, was not for Prepakt to choose at all. Both parties had surrendered that choice to the A.A.A., and it makes no difference whether the A.A.A. made a final choice before the petition to compel arbitration was filed (in which case the petitioning party would have known what court to file in) or afterward.

      . We do not hold that diversity and amount in controversy were necessary to confer jurisdiction under § 9, but only note that in this case they were present.

        . See Southeastern Enameling Corp. v. General Bronze Corp., 434 F.2d 330 (C.A.5 1970), in which we held that an order granting a stay pending arbitration was analogous to an injunction order and lienee appealable under 28 U.S. § 1292(a)(1) (1970). The same rationale applies to orders compelling arbitration. In fact, if anything it applies with additional force in the case of such orders. Compare New England Power Co. v. Asiatic Petroleum Corp., 456 F.2d 183 (C.A.l 1972), in which the First Circuit, unlike this circuit, held a stay order nonappealable yet stated that an order compelling arbitration is appealable.


author: COLEMAN, Circuit Judge: BELL, Circuit Judge

text:
    I. S. JOSEPH COMPANY, INC., Plaintiff-Appellant, v. CITRUS FEED COMPANY, INC., et al., Defendants-Appellees.
    No. 72-3561.
    United States Court of Appeals, Fifth Circuit.
    Feb. 20, 1974.
    Rehearing and Rehearing En Bane Denied April 3, 1974.

      William A. Gillen, Edward M. Waller, Jr., Tampa, Fla., for plaintiff-appellant.
    Monterey Campbell, Bartow, Fla., for defendants-appellees.
    Before BELL, COLEMAN and RO-NEY, Circuit Judges.
   COLEMAN, Circuit Judge:

This is a diversity suit for breach of an alleged oral contract to deliver 10,000 tons of dried citrus pulp for use in the manufacture of pelletized cattle feed. The verdict of the jury was for the defendants, both as to the claim and as to a counterclaim. We affirm.

The plaintiff, I. S. Joseph Company, of Minneapolis, Minnesota, was in the business at Tampa, Florida, of making citrus pulp pellets for sale in foreign markets, particularly Europe. It purchased citrus pulp from various producers in Florida.

The defendant, Citrus Feed Company, with plants at several places in Florida, was in the business of processing bulk, dried citrus pulp as it came from the primary citrus processors who were making frozen citrus juice and the like. Citrus Feed’s method of operation was to set up its tanks, driers, etc., on the property of the primary processors, taking their total output of pulp as originally processed, drying it, and turning it into feed pulp which could thereafter be pelleted, as accomplished in Joseph’s operation.

From 1966 to 1969, Citrus Feed had been selling pulp to Joseph. These sales had been made, however, as the commodity was produced, or substantially so. The use 'of advance contracts by which pulp was purchased ahead of the actual citrus season had not been initiated.

At the onset of the 1969-1970 citrus fruit season, there were negotiations between Citrus Feed and Joseph, handled exclusively by one representative of each, for the purchase and sale of citrus pulp. These representatives were Jenkins, sales manager for Citrus, and Kie-fer, Tampa manager for Joseph. There were no witnesses to their negotiations or to their purported agreements.

On the trial in the Court below Kiefer testified that Jenkins, on August 25, verbally and unconditionally agreed to deliver 5,000 tons of pulp at an agreed price and that on September 25 Jenkins unconditionally agreed to deliver an additional 5,000 tons.

Jenkins, however, testified that he had agreed to deliver only such quantities of pulp as Citrus might process in excess of that required to supply its regular customers.

There was never any formal, written contract.

On August 25, 1969, in separate documents, Joseph mailed to Citrus two “Confirmations of Purchase” for 2,500 tons each of dried citrus pulp, to be shipped between the latter half of December, 1969 through May, 1970. An exactly similar document was sent for the purchase allegedly made on September 25 for 5,000 tons to be “scattered January through June, 1970”. Joseph’s Vice President testified that it was the custom in its Minneapolis operations to send along a duplicate copy which the seller was required to sign and return but that it was not done in this case because things were just not done that way in Florida.

Citrus made no response, written or otherwise, to any of the “Confirmations”.

On October 13, 1969, Joseph wrote a letter to Citrus:

“Just a note to bring you up to date on our export activities and to advise that the 10,000 tons of citrus pulp which we will receive from you during this campaign has been sold to a European consumer and we now look forward to receiving the product and fulfilling the contract with our European buyer.”

It is to be noted that this letter referred to “citrus pulp which we will receive from you”. It did not use terms such as “which you have contracted (or agreed) to deliver”. It did express an expectation of receipt.

This letter pinpoints the date of the sale of the expected tonnage to European purchasers as somewhere around the first of October. This was before Citrus delivered any pulp to Joseph. The European sales thus had to be made in reliance upon whatever Jenkins had agreed to prior to the issuance of the “Confirmations”.

At any rate, Citrus Feed made no response to this letter.

Thereafter, at various intervals between November and February, sometimes on a daily basis, by freight ear or truck, Citrus Feed did ship a total of 2,500 tons to Joseph, at the price named in the “Confirmations”.

According to proof on behalf of Joseph, a Citrus representative told a Joseph representative at a meeting in Lakeland on December 18 that Joseph was lucky to have its contract with Citrus because the price of pulp had gone up and that Citrus would fdlfill its obligations under the “contracts”.

After February, 1970, Citrus made no further shipments and this lawsuit followed, seeking, inter alia, to recover the difference between the claimed contracted purchase price and what Joseph allegedly had to pay elsewhere to cover its commitments to. its foreign purchasers.

The fiscal situation of the parties was affected by the following operative facts: It cost Citrus Feed $19 per ton to produce the pulp. It was obligated to pay the primary producer the difference between $22 and the prevailing market price per ton for raw pulp. If there was a contract with Joseph at $22.50 and the prevailing price in the market place was $25, Citrus would owe the primary producer $3 per ton. Thus its production costs would be $22 a ton and it would realize a net profit of only 50 cents per ton. Serious problems developed when the pulp market price went to $30 per ton in December and much higher thereafter. In a $30 situation, Citrus would have its fixed cost of $19 plus the $8 rebate to the primary processor, which meant that it would lose $4.50 on every ton shipped to Joseph. The market in January rose to $35, which would escalate the net loss to $9.50 per ton. Joseph says this is what motivated Citrus Feed to stop delivering for $22.50 per ton.

In its complaint, Joseph alleged that to meet its European obligations it had to pay $127,000 more for the 7,500 tons of pulp in the open market than it would have cost if obtained at $22.50 per ton and had other costs besides. The case thus presents serious loss potentials for both the appellant and the appellee.

In the meantime, before Citrus Feed stopped its deliveries, another set of circumstances came into play. According to testimony on behalf of defendant-ap-pellee, Joseph was inordinately slow in paying for the delivered pulp. Checks were dated as much as thirty days ahead of the time Citrus received them. This continued in such a fashion that by Christmas Joseph owed Citrus in the neighborhood of $60,000 on unpaid delivery invoices. While this was going on, an official of Joseph led Citrus to believe that they could make an arrangement by which Joseph would thereafter purchase the entire production of Citrus Feed. An official of Joseph insisted that Citrus representatives come to Minneapolis during the Christmas holidays for a conference in this regard. The Citrus Feed men hoped they would be paid during this visit but were afraid to mention it because it might blow up the negotiations for the sale of their entire output. They went to Minneapolis, where they got into a rather stormy argument with Mr. Joseph about whether they were under an unconditional contract to deliver the 10,000 tons named in the prior confirmations. Both as to pay and as to a total sales agreement they departed sackless. To cap it off, Joseph refused to pay for $876.40 worth of Citrus pulp shipped on January 22 and for $2,069.13 worth shipped on February 16. The Defendants counterclaimed for these amounts. Joseph did not deny failure to pay but contended that one shipment was wholly unfit for use and asserted that the other shipment was not paid for because it had become apparent that Citrus Feed was not going to comply with the agreements of August 25 and September 25.

As evidenced by the Complaint and by the Plaintiff’s opening statement to the jury, this law suit began as one for breach of an unconditional oral contract. At the close of all the proof, Joseph moved for a directed verdict as to liability on the grounds: (1) The testimony and the confirmations established a contract as a matter of law; (2) The evidence established a ratification of the contract, accompanied by partial performance; and (3) The . Defendants were estopped to deny the existence of an unconditional oral contract.

Citrus Feed defended on the ground that it had agreed only to deliver excess pulp and on the seeond ground that if there had been a contract Jospeh’s failure to pay promptly, coupled with a refusal to pay at all for two shipments, excused it from further performance. It moved for a directed verdict on the latter ground.

The Trial Judge denied both motions and submitted the case to the jury. The jury found for Citrus Feed.

While there was a general verdict, the jury had evidence from which it obviously could have found that on August 25 and September 25 Sales Manager Jenkins, acting for Citrus Feed, agreed only to deliver excess pulp. On this appeal, however, Joseph travels on the argument that the:

“Plaintiff does not contend that the Confirmations of Purchase became the contract. Rather, the Confirmations of Purchase together with the letter of October 13, the discussion of December 18, the shipment by Defendants, and the silence of Defendants throughout, all create an estoppel which precludes the Defendants from denying that they were unconditionally obligated to sell and deliver 10,000 tons.”

This litigation involved a contract allegedly made and to be performed in Florida. Thus, where applicable, we look to Florida law.

The failure of Citrus Feed to respond to the “Confirmations” sent by Joseph served only to deprive it of a defense under the Statute of Frauds. It did not relieve Joseph of the burden of convincing the jury by a preponderance of the evidence that an oral contract was, in fact, made. This necessarily would include the essential terms of the contract, The Uniform Commercial Code, 19A Fla.Stat.Ann., § 672.2-201, and the accompanying Code comments. By its appellate contentions hereinabove quoted the appellant concedes this point.

We are thus remanded to the issue of contract by estoppel — and that as a matter of law, not as an issue of fact.

In its excellent brief, appellant cites a wealth of cases dealing with the general principles of ratification by silence, es-toppel by silence, estoppel by inaction, estoppel by words or action, estoppel by conduct, and estoppel by acquiescence. These cases are within the peripheral range of this litigation but, in our opinion, are not, as a matter of law, controlling. We, therefore, abstain from re-sweeping the field by an extended discussion of their applicability or inapplicability to the issues presently before us, although that they accurately reflect the law in general is not to be doubted.

We think the matter is capable of solution by looking directly to Florida law.

In the case of Enstrom v. Dunning, 136 Fla. 253, 186 So. 806, 812 (1939) the Supreme Court of Florida enunciated the rule:

“No one should be denied the right to set up the truth unless it is in plain contradiction of his former allegations or acts. If an act or admission is susceptible of two constructions, one of which is consistent with a right asserted by the party sought to be es-topped, it forms no estoppel.”

An estoppel will not be raised against one because he was silent where there was no duty on him to speak, 12 Fla.Jur., Estoppel and Waiver, § 42, page 419.

We must be careful to point out that this entire controversy was between the original parties to the original agreement — they and no others. Joseph knew what the agreement was from the very beginning. Nothing it could have been told would have added to that knowledge. No silence could have left Joseph under any misapprehension of the facts. This was not a case wherein copies of Joseph’s confirmations were forwarded to third parties who relied upon them to their detriment. There was nothing inconsistent about the delivery of the 2,500 tons of pulp. Citrus Feed had orally agreed to deliver — the dispute hinges around the amount it was obligated to deliver. The trial record left the jury free to choose between two inferences, one that Citrus did deliver from excess, the other that it did not. The verdict indicates that the jury accepted the former. These considerations involved inferences to be drawn from known or disputed facts, and about which reasonable men could readily differ. It, therefore, was appropriate to submit the issues to the determination of a jury. This the Trial Court did, with peculiarly clear and succinct instructions which, among other things, informed the jury that it should consider the conduct of the parties during previous citrus seasons as well as during the 1969-1970 season, including the correspondence between them.

As to delay in payments and failure to pay at all, Citrus Feed’s second defense, we find the jury to have been properly instructed and as to that ground the verdict is supported by substantial evidence.

The Plaintiff-Appellant might well have won the verdict in this case. If this had happened it would, on this record, have been impervious to appellate attack. Joseph might have won before another jury at some other time or place. The immutable fact is that it lost. Perceiving no legal error in the trial, we cannot interfere.

Neither do we detect error as to the verdict on the counterclaim.

The Judgment of the District Court is

Affirmed.

BELL, Circuit Judge

(concurring in part and dissenting in part):

I respectfully dissent as to one issue. The theory of the suit was breach of an oral contract. The defenses, as pertinent here, were denial of the existence of the alleged contract and, in the alternative, if a contract existed, a claim of material breach by the plaintiff. Both defenses were submitted to the jury.

Plaintiff contends on appeal that the trial court erred (1) in not determining as a matter of law that there was a contract as alleged and (2) in also submitting the defense of a breach of the contract to the jury. I agree with plaintiff as to the first contention but not as to the second. The jury returned a general verdict and it would be necessary under my view to remand the case for a new trial on the breach of contract defense.

A representative of Joseph negotiated with the sales manager of defendants on two occasions prior to the 1969-70 citrus season for the purchase by Joseph of citrus pulp. The sales manager testified for defendants as follows:

“. . . We came to an arrangement whereby I would not go out and get any additional customers; I wouldn’t go and try to take on a new dairy for the season. Any excess feed that we had during the season we would agree to sell to L. S. Joseph Company. . . .”

Following these negotiations, Joseph issued to defendants three documents entitled “Confirmation of Purchase.” Two were dated August 25, 1969, each confirming a purchase of 2,500 tons of citrus pulp at a stated price. The other was dated September 25, 1969 and was for 5,000 tons at the same price. On October 13, 1969 the representative of Joseph who had carried on the negotiations wrote to the defendants, referring to the 10,000 tons of citrus pulp which was to be received from them and stating that it had been sold to a European customer.

The defendants thereafter delivered 2,500 tons of pulp to Joseph at the agreed price. Meanwhile the market price had increased in stages from $22.-50 per ton to $40.00 per ton. The last shipment was made by defendants on February 16, 1970. In early March and prior to March 6, 1970, they advised Joseph that they would make no further shipments.

Defendants denied that there was a contract, contending that they refused to make a firm contract because Joseph would not agree to a “freeze” clause. The difficulty with this position is that defendants’ sales manager testified to the contrary, i. e., that the agreement was for excess pulp only. This means that defendants would be excused on a pro tanto basis from performing to the extent that no excess was available, whether due to a freeze or otherwise. I am unable to discover any contention by defendants that they failed to deliver because of lack of excess product.

It appears that negotiations continued between the parties for several months over a contract whereunder Joseph would take all of defendants’ production but that these negotiations were unsuccessful. It is to be noted that these negotiations were aside from the contract, if there was a contract, for the acquisition of the 10,000 tons of pulp.

The district court concluded that the question whether a contract existed presented a jury issue. I disagree and am thus also in disagreement with the majority.

I find it unnecessary to go beyond, first, the testimony for defendants that they intended to sell any excess citrus pulp to Joseph, and second, the confirmations of purchases and the letter of October 13 which are consistent with that stated intention. These documents confirmed what defendants say they agreed to do, at least up to 10,000 tons of any excess pulp. This much was undisputed and made the contract as I see it. This view is buttressed by defendants’ shipping 2,500 tons under one of the August 25 confirmations.

The other issue submitted to the jury under the general verdict was the alternative assertion that plaintiff breached the contract. I agree with the majority that this issue was for the jury but, as noted supra, because of the general verdict a new trial on this single issue would be necessary even if my views had prevailed.

      . Oddly enough, in an unusually tedious trial, marked by frequent wrangles over inconsequential matters, neither Joseph nor Citrus made a definite effort to prove the existence or non-existence of such an “excess”, or the amount of it at any given time. In the briefs, our attention is directed to some isolated figures from which we are invited to draw conclusions on this subject. We find this proof too insubstantial to support a view grounded on undisputed evidence. We are not a fact finding Court. We apply the familiar rule that disputed factual issues must be viewed in the light most favorable to the jury verdict.

      . Special interrogatories under Rule 49(b), F.R.Civ.P., might have obviated a new trial.


author: John R. BROWN, Chief Judge:

text:
    Sam Ulysses TURNER, Plaintiff-Appellee, v. John J. McKEITHEN et al., Defendants, Ouachita Parish Police Jury, Defendant-Appellant.
    No. 71-2221.
    United States Court of Appeals, Fifth Circuit.
    Dec. 28, 1973.

      J. Carl Parkerson, Dist. Atty., Gilbert Brown, Jr., Asst. Dist. Atty., Monroe, La., for defendant-appellant.
    Paul Henry Kidd, Robert P. McLeod, Monroe, La., for plaintiff-appellee.
    Before BROWN, Chief Judge, and IN-GRAHAM and RONEY, Circuit Judges.
   John R. BROWN, Chief Judge:

We have held this 1971 Ouachita Parish Police Jury reapportionment case in abeyance pending the Supreme Court’s decision in White v. Regester, 1973, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314, affirming in part, reversing in part, Graves v. Barnes, W.D.Tex., 1972, 343 F.Supp. 704 (three-judge court) and our own en banc decision in Zimmer v. McKeithen, 5 Cir., 1973, 485 F.2d 1297, reversing 5 Cir., 1972, 467 F.2d 1381. On the basis of the highly beneficial guidance provided by these cases, we affirm the District Court’s determination that the Police Jury’s proposed multi-member reapportionment plan unconstitutionally dilutes the potential for political participation by the black community of Ouachita Parish.

The History

This class action, brought by the Challengers on behalf of the registered voters of former Ward 10 of Ouachita Parish, attacking the apportionment of the Parish Police Jury was instituted in February 1970. Under Louisiana law, the Parish Police Jury is charged with the maintenance of roads and drainage, regulation of taverns, levy of taxes and a variety of other responsibilities relating to the health and welfare of the public.

At the commencement of this, litigation, Quachita Parish was divided into ten wards. Seven of the wards each elected a single member to the Police Jury while wards 3, 5 and 10 each elected four members.

As of the 1970 census, blacks constituted 27.4% of the population of Ouach-ita Parish. The great majority of blacks were concentrated within wards 3 and 10 — two of the multi-member wards. Under the existing apportionment scheme, blacks constituted 42.5% of the total population of ward 3 and 37% of the total population of ward 10.

Prior to trial, the parties stipulated that the existing apportionment scheme was unconstitutional due to significant deviations from the “one man — one vote” principle.

The District Court requested that the parties submit reapportionment plans. On May 12, 1971 before the plans were submitted, a hearing was held at which time the Challenger injected the issue of “dilution” of the minority vote into the case. On June 12, 1971, a week before the case was scheduled for trial, the Supreme Court decided Whitcomb v. Chav-is, 1971, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363, in which the question of dilution of the minority vote was discussed in far greater detail than it had been up to that time.

The Police Jury proposed a plan under which the 10 existing wards would be consolidated into three new multi-mem-ber districts without splitting any of the former wards. The Challengers submitted two single-member district plans, one of which provided for six districts, the other for nine.

At a hearing held before the District Court on June 18, the parties presented witnesses and offered evidence in support of their respective plans. The Court found that the Police Jury’s proposed plan was constitutionally defective for two separate reasons.

First, the Court held that the Police Jury had not carried the burden of justifying the 6.1% maximum population variance (per juror) between the largest and the smallest districts considering that the plan submitted by the Challenger and adopted by the Court, provided for a maximum variance of only 3.5%. As a result the plan did not satisfy the “one man — one vote” principle.

Secondly, the District Court found that the Police Jury’s plan was constitutionally defective because the multi-member districts “would tend to dilute’ and cancel out the present voting strength of either one or both of the two large identifiable black areas in Ouachi-ta Parish” and would therefore result in “invidious discrimination.”

The District Court • found that the Challenger’s six district single-member plan complied with constitutional requirements and implemented that plan prior to the 1971 election. The Parish’s first black police juror has been elected pursuant to the plan.

On appeal, the Police Jury urges that (1) the deviations from the “one man— one vote” principle inherent in its proposal were constitutionally justified by legitimate state interests; (2) that its multi-member plan did not unconstitutionally dilute the black voting strength of the Parish; (3) that the District Court did not allow it a sufficient opportunity to prepare its own plans and study Challenger’s.

Since we agree that the District Court correctly concluded that the multi-mem-ber plan submitted by the Police Jury unconstitutionally diluted the black vote, we find it unnecessary to determine whether the District Court’s conclusion on the “population variance” question is consonant with Mahan v. Howell, 1973, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320; and Gaffney v. Cummings, 1973, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298. We turn then to dilution — a question on which the controlling authority is still warm from the presses.

The Standard

Last term in White v. Regester, supra, a Texas case, the Supreme Court sustained a three-judge District Court finding that multi-member districting plans tended to minimize or cancel out the voting strength of blacks in Dallas County and Mexican-Americans in Bexar County. Shortly after the decision in White v. Regester, this Court sitting en banc in Zimmer v. McKeithen, supra, held that the at-large voting scheme employed for electing Police Jurors and School Board members in East Carroll Parish, Louisiana unconstitutionally diluted the voting strength of the black residents of the Parish.

White v. Regester and Zimmer recognized that “access to the political process * * * [is] * * * the barometer of dilution of minority voting strength.” Zimmer, supra, at 1303. Therefore, “the plaintiffs’ burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question — that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.” White v. Regester, supra, 412 U.S. at 766, 93 S.Ct. at 2339, 37 L.Ed.2d at 324.

Both White v. Regester and Zimmer set forth a number of factors which are relevant in determining whether a minority group in fact lacks meaningful access to the political process. Among the factors entitled to consideration are the continuing effects of past discrimination on the minority group’s ability to participate in the political process, the opportunity for the minority group to participate in the candidate selection process, the responsiveness of elected officials to the particular concerns of the minority group, and the strength of the state interest in multi-member or at-large voting.

Furthermore, both White v. Regester and Zimmer recognized that the presence of various structural voting devices such as a majority vote requirement, anti-single shot voting, large districts, and lack of residency requirements in a district or its geographical subdivisions may increase the potential for dilution under a multi-member or ' at-large arrangement. Dilution, as with so many complex factual determinations turns on an aggregation of the circumstances.

The Circumstances

Measured against these guidelines, the District Court correctly concluded that the Police Jury’s multi-member plan was constitutionally unacceptable because it tended to dilute the potential for minority participation in the political process.

In evaluating the opportunities for meaningful access to the political process of the black community in East Carroll Parish, Zimmer recognized the presence of the continuing debilitating effects of the pervasive statewide history of racial discrimination in Louisiana, 485 F.2d at 1306.9 Open, flagrant, unsophisticated, purposeful discrimination against blacks has been the long time pattern in Ouachita Parish. United States v. Louisiana, note 9, supra, 225 F.Supp. at 379-382. A dual school system in Ouachita Parish was only abandoned under Federal Court order.

And the ballot box was opened only to those who satisfied the unconstitutional statewide interpretation test invalidated by United States v. Louisiana.

No contradiction is made of the Challenger’s supplemental brief which tells us that Ouachita Parish was one of eight Louisiana parishes to which Federal Voting Registrars were sent to register black voters pursuant to the Voting Rights Act of 1965. And, as of January 1971, 4,117 Ouachita Parish blacks were listed upon the federal voter registration rolls as contrasted with 2,952 blacks on the state registration roll. Prior to October 3, 1964, 73.6% of the white voting age population of Ouachita Parish was registered as opposed to 10.6% of the black voting age population. As in White v. Regester and Zimmer, so here we recognize that despite recent progress, the inhibiting effects of such blan-tant and pervasive discrimination have not yet been erased.

Unlike White v. Regester and Zimmer where at least a few minority members had been elected, the District Court found as a fact that at the time of trial no black had ever been elected to public office in Ouachita Parish since reconstruction although a number of blacks had run.

The record entitled the District Court to consider the failure to include the black community in the candidate slanting process — perhaps the most important stage of the political process in Ouachita Parish which has been dominated in the past by one political party. Rather, the black vote has been solicited at a stage when the actual candidate selection has already occurred and the possibility for meaningful influence is significantly diminished. Of course this is an old weapon in the arsenal of voter discrimination which the Supreme Court years ago struck down when it changed the Democratic Party of Texas from a private club to a State enterprise.

While there is little evidence in the record that former “representatives” on the Police Jury from the two black areas of concentration have been unresponsive to the interests of the black community, Zimmer recognized that “the particular functions of the police jury” may “not easily lend themselves to unresponsive representation.” The Court continued, however: “Were we to hold that the absence of a claim of representation unresponsive to a minority’s needs foreclosed constitutional attack, the voting strength of minorities could be freely diluted without fear of constitutional restraint.” 485 F.2d 1306-1307 n. 26.

Although the Police Jury apportionment system stipulated unconstitutional contained three multi-member districts, the Parish had hardly evidenced a total commitment to multi-member districting since 7 of the 10 districts elected only one member. By contrast the reapportionment plan submitted to the District Court by the Police Jury provides for only multi-member districts.

Certain of the structural devices which must be regarded with suspicion where the issue of dilution has been properly raised are present in Ouachita Parish. There is no requirement of residency within geographical subdistricts of the multi-member districts under the Police Jury’s proposal. A majority vote requirement and an anti-single shot voting provision appear to apply to the primaries for the election of Police Jurors.

The District Court took notice of the fact that the Police Jury’s proposed reapportionment plan, by tacking substantially white wards onto the two former wards containing the major concentrations of black population would slightly decrease the proportional strength of blacks living in these two identifiable “black” districts. By the same token, of course, the proportional strength of those blacks living in the substantially white wards which were “tacked on” to the wards containing the major concentrations of blacks would be increased. While such increases or decreases in proportional strength resulting from the change from one apportionment system to another may in some cases provide significant evidence of motive or effect, we do not consider these slight variations of compelling significance in this case.

The constitutional problem with the Police Jury’s reapportionment plan is not rooted in the rough edges of the change from the old apportionment system which encompassed the areas of black concentration in multi-member districts, to the new completely multi-member plan. Rather it is that the particular employment of multi-member districts here at issue in the political and historical context of Quachita Parish unduly limits the potential for black participation in the political process.

While a minority group is not constitutionally entitled to an apportionment structure designed to maximize its political advantage, neither may it be enveloped in a structure which will necessarily minimize its potential for meaningful access to the political process. See Graves v. Barnes, 1972, 343 F.Supp. 704, 734, aff’d in part, rev’d in part, sub nom. White v. Regester, supra.

In view of the total factual matrix, we haven’t any doubt that the district court could conclude that the Police Jury’s proposed multi-member reapportionment plan for Ouachita Parish unconstitutionally minimized the access of the black community to the political process.

The Procedure

After determining that the Police Jury’s multi-member plan was constitutionally deficient, the District Court, faced with an upcoming election and a crowded docket ordered that the Challenger’s proposed six district single-member plan be implemented immediately recognizing that “when district courts are forced to fashion apportionment plans, single-member districts are preferable to large multi-member districts as a general matter.” Connor v. Johnson, 1970, 402 U.S. 690, 692, 91 S.Ct. 1760, 1762, 29 L.Ed.2d 268, 270. There is ample evidence in the record to support the District Court’s conclusion that the plan follows “clear and simple boundary lines” and consists of “contiguous” and “compact” districts. Since the two major areas of black concentration are preserved intact no “dilution” issue is created by the plan Thus Challenger’s plan, implemented by the District Court is constitutionally sufficient.

The Police Jury argues that it was not allowed sufficient time to study Challenger’s plan and submit an adequate plan of its own, but the record does not support this claim. Admittedly, the question of minority “dilution” belatedly became the primary issue in what had previously been a “one man- — one vote” case.

At a hearing held with counsel in chambers on May 14, 1971, the Court ordered that time would be allowed for the parties to obtain census enumeration print-outs breaking down the population by race so that the parties could take the issue of “dilution” into consideration in developing their plans.

In another hearing held on June 2, 1971 “there was extensive argument and discussion on the question of the preference of single-member districts versus multi-member districts and the ‘dilution’ of racial voting strength.” At this time, the Challengers submitted a nine district single-member plan. The Police Jury requested and was granted a continuance until June 18 in order to study this plan.

The Challengers submitted a revised nine district single-member plan on June 17. On June 18, the first day of the trial, the Challengers submitted a six district single-member plan and the Police Jury submitted a three district multi-member plan. Since the trial began on June 18, a Friday, and was concluded on June 21, a Monday, both parties were able to study each others plan over the weekend.

On June 21, the Police Jury objected to the admission of Challenger’s six district plan on the grounds that it was irrelevant and immaterial but not on the grounds of surprise. Near the very end of the proceeding, the Police Jury requested a further continuance “to consider another plan.” The District Court denied the request because it would be unable to schedule another hearing before the qualifying deadlines for the upcoming party primaries.

While we recognize that a “legislative reapportionment is primarily a matter for legislative consideration and determination,” judicial relief became appropriate when the Police Jury failed “to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so.” Reynolds v. Sims, 1963, 377 U.S. 533, 586, 84 S.Ct. 1362, 1394, 12 L.Ed.2d 506, 541.

All of this is an afterthought by the Police Jury. Rather, the Police Jury was convinced that its three district multi-member scheme would withstand constitutional challenge on the “dilution” as well as the “one man — one vote” questions and was therefore determined to stand on the plan. There is nothing in the record to suggest that the Police Jury would have tendered its own single-member plan prior to the qualifying deadline had the Court granted its request for a further continuance.

We cannot say that the District Court erred in denying the request in view of the severe time constrictions where it had determined that the Challenger’s proposed plan was constitutionally adequate.

The Relief

In Burns v. Richardson, 1965, 384 U. S. 73, 85, 86 S.Ct. 1286, 16 L.Ed.2d 376, 387, the Supreme Court recognized that “the state remains free to adopt other plans for apportionment and the present interim plan [the Court’s plan] will remain in effect for no longer time than is necessary to adopt a permanent plan.”

If in light of White v. Regester, Zimmer, and our present decision the Police Jury believes that it is able to devise a single-member plan which will satisfy constitutional requirements and better serve its own needs than the plan implemented by the District Court, it is of course free to propose such a plan to the Court for consideration. We express no view on what action, if any, the Court should take on any proposal, but of course until the Court acts otherwise the plan adopted by the District Court will remain in effect, and the burden is on the Police Jury, not the Challenger, to demonstrate a need for modification.

Affirmed.

      . The District Court implemented the Challenger’s substantially similar plans for reapportioning the School Board and the Police Jury. Both plans were originally attacked on appeal. On June 12, 1972, the Court granted the School Board’s motion to dismiss its appeal.

      . See La.Rev.Stat.Ann. 33:1236.

      . Maximum variances as great as 37% existed.

      . Under this plan District I (formerly wards 1, 2 and 10) would elect six members, District II (formerly wards 3 and 4) would elect four members, and District III (formerly wards 5, 6, 7, 8 & 9) would elect five members.

      . The first black member of the Parish School Board was elected under the similar plan adopted for the School Board. See note 1, supra.

      . The Court had discussed the question in previous cases but liad not sustained a finding of dilution. See Whitcomb v. Chavis, supra; Burns v. Richardson, 1966, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376; Fortson v. Dorsey, 1965, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401.

      . White v. Regester, supra, 412 U.S. at 765, 93 S.Ct. at 2339, 37 L.Ed.2d 324-326; Zim-mer, supra, 485 F.2d at 1305.

      . We agree that “multimember districts— * * * in logic of analysis are merely one form of at-large voting.” Zimmer, supra (Clark, J. dissenting) 485 F.2d at 1315.

      . See Judge Wisdom’s opinion in United States v. Louisiana, E.D.La., 1963, 225 F. Supp. 355 (three-judge court), aff’d, 380 U. S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709 for an extensive history of racial discrimination in the electoral process of Louisiana.

      . “Beginning April 15, 1956, the Citizens Council of Ouachita Parish challenged all 5,782 of the registered Negroes. Of these, all but 595 were striken from the rolls.” United States v. Louisiana, note 9, supra, 225 F.Supp. at 379 n. 76. Of course Ouach-ita Parish was not alone. See, e. g., United States v. Ward, 5 Cir., 1965, 349 F.2d 795 (Madison Parish) ; Toney v. White, 5 Cir. (en banc), 1973, 476 F.2d 203 (Madison Parish).

      . Taylor v. Ouachita Parish School Board, 5 Cir., 1970, 424 F.2d 324; 5 Cir., 1969, 420 F.2d 692, D.C.La., 303 F.Supp. 394, 5th Cir., 417 F.2d 801, cert, denied, 396 U.S. 904, 90 S.Ct. 218, 24 L.Ed.2d 180; W.D.La., 293 F. Supp. 84. See also Andrews v. City of Monroe, 5 Cir., 1970, 425 F.2d 1017; Andrews v. City of Monroe, 5 Cir., 1967, 380 F.2d 385, cert, denied, 389 U.S. 840, 88 S.Ct. 77, 19 L.Ed.2d 104; 5 Cir., 1966, 370 F.2d 925.

      . See United States v. Louisiana, note 9, supra, 225 F.Supp. at 381 n. 77. “In at least two parishes, Ouachita and East Feliciana, one ground for challenging Negroes was that they had not interpreted or were not able to interpret a constitutional section, even though the test liad not been used in either parish before the purge * * *.
      The discrimination brought about by the purge and the use of the interpretation test was frozen into the system in parishes such as Bienville, DeSoto, Jackson, Ouachita and Rapides, which have permanent registration.” United States v. Louisiana, note 9, supra at 382.

      . Report of the Louisiana Board of Registration (1971).

      . Political Participation: A Report of the United States Commission on Civil Rights (1968).

      . It is unclear from the record whether any . blacks had run for the Police Jury.

      . See Smith v. Allwright, 1944, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987; Nixon v. Condon, 1932, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984; Nixon v. Herndon, 1927, 273 U. S. 536, 47 S.Ct. 446, 71 L.Ed. 759. See also United States v. Classic, 1941, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (racial discrimination in Louisiana Congressional primary) .

      . Many of whom have not actually lived in the black section.

      . The Parish’s long history of segregation and voter registration discrimination certainly was a relevant evidentiary factor on the likely degree of concern by local officials for the interests of the black community.

      . Not surprisingly, both of the major concentrations of black population were formerly enveloped in multi-member districts.

      . See La.Rev.Stat.Ann. 18 :358. Only a plurality vote is required in the general election, however. La.Rev.Stat.Ann. 18:550.

      . La.Rev.Stat.Ann. 18:351.

      . See notes 4 and 19, supra.

      . From the record it appears likely that the employment of multi-member districts in the areas of black concentration under the previous apportionment scheme — stipulated to be unconstitutional under the “one man-one vote” principle — could have been subjected to successful constitutional challenge for dilution.
      We recognize, of course, that multi-mem-ber representation is not per se unconstitutional. See White v. Regester, supra, 412 U.S. at 765, 93 S.Ct. at 2339, 37 L.Ed.2d at 324. However, where a state or political subdivision attempts to employ multi-member districts in the wake of a history of pervasive racial discrimination, extreme care must be used in order to protect against the potential for dilution.

        Zimmer recognized that multi-member districts may be used

        “where a district court determines that significant interests would be advanced by the use of multi-member districts and [that] the use of single-member districts would jeopardize constitutional requirements .... But these significant interests must not themselves be rooted in racial discrimination. . . .
      The preference may also yield where a district court determines that multi-mem-ber districts afford minorities a greater opportunity for participation in the political processes than do single-member districts.” (Emphasis added). 485 F.2d 1308.
      The plan in question clearly does not satisfy these requirements.
      The Police Jury has failed to offer persuasive justification for the need for multi-member districting in the Parish. In response to the “population variance” issue, the Police Jury asserted that its proposal was intended to include rural and urban territory in each district, so that every juror would have rural roads to maintain (urban roads being maintained by the city of Monroe). This has been recognized as a legitimate legislative goal. See Howard v. Adams County Board of Supervisors, 5 Cir., 1972, 453 F.2d 455, cert, denied, 407 U.S. 925, 92 S.Ct. 2461, 32 L.Ed.2d 812 (Howard I). No reason was given, however, why this couldn’t be accomplished through single-member districts.
      The Police Jury also argued that its plan was intended to preserve former ward boundaries to the extent possible. Given the degree of variance from the “one man-one vote” principle under the original apportionment scheme, it is clear that many of the former boundaries would need to be abandoned. See Howard v. Adams County Board of Supervisors, 5 Cir., 1973, 480 F.2d 978, 980 (Howard II). In addition, both of the Challenger’s single-member plan preserved seven of the original ten districts intact (neees-sarily combining some of them, of course).
      The district court found as a fact that “single-member district plans were easily de-visable for both defendants [Police Jury and School Board] and that there were no ‘insurmountable barriers’ for either [of them] to overcome in devising their own single-member district plan aside from their own refusal to so do.”
      The Court further found “no evidence in the record to explain or justify the 6.1% and 5.5% deviations inherent in the plans submitted by the defendants . . . ”

      . A minority group is not constitutionally entitled to one or more “safe” or majority districts simply because an apportionment scheme could be drawn to reach this result. See Whitcomb v. Chavis, 1971, 403 U.S. at 156-160, 91 S.Ct. at 1875, 29 L.Ed.2d at 383-385; Howard I, supra, 453 F.2d at 458. However, in dilution cases as in school integration cases, the federal courts must be color blind/color conscious. See Zimmer, supra at 1308 n. 27.
      There is no agreement on whether .the political interests of a minority group are best maximized by an overwhelming majority in a single district, bare majorities in more than one district or a substantial proportion of the voters in a number of districts. See, e. g., Wright v. Rockefeller, 1964, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512.

      . Unlike East Carroll Parish with its 6,183 population Ouachita Parish is both rural and urban with a total population of 39,095 and contains Monroe, the fifth largest city in Louisiana.
      Also, unlike East Carroll where blacks constituted a majority of the total population, the blacks in Ouachita Parish are in the minority on a population basis.

      . “[U]sually being railroad lines, the Ouachita River, bayous, existing ward lines, Interstate Highway 20 and the city limits line of the City of Monroe.” Findings of Fact No. 25.

      . In Howard I, supra, 453 F.2d at 458 n. 2, this Court recognized that the dilution principle, though developed in the context of multi-member districting, was applicable to single-member districts as well.

      . District Court’s Findings of Fact No. 7.

      . A multi-member plan would be permissible only if it was capable of meeting the standards set forth in Zimmer. See note 23, supra.