author: WIDENER, Circuit Judge:

text:
    James W. DENNY, Administrator of the Estate of James N. Denny, by Roger L. Smith, Ancillary Administrator of the Estate of James N. Denny, to his own use and to the use of Insurance Company of North America, Appellant, v. SEABOARD LACQUER, INC., Appellee.
    No. 72-1832.
    United States Court of Appeals, Fourth Circuit-
    Resubmitted Sept. 5, 1973.
    Decided Nov. 20, 1973.

      Oliver B. Dickins, Jr., Nashville, Tenn. (Abraham L. Adler, Baltimore, Md., and Moe Levine, New York City, on brief), for appellant.
    Barrett W. Freedlander, Baltimore, Md. (Robert H. Williams, Jr., Raymond F. Altman and Niles, Barton & Wilmer, Baltimore, Md., on brief), for appellee.
    Before WINTER, RUSSELL, and WIDENER, Circuit Judges.
   WIDENER, Circuit Judge:

Plaintiff-appellant, James W. Denny, is the administrator of the estate of James N. Denny (hereinafter Denny) who was killed as a result of an explosion which occurred while Denny was using a quantity of floor sealer which was manufactured by defendant-appellee, Seaboard Lacquer, Inc. (hereinafter Seaboard). In the court below, Seaboard moved for summary judgment, which motion was granted as against Denny but not against other plaintiffs with which we are not concerned in this appeal. For the purposes of disposing of the motion, Seaboard conceded the truth of the factual allegations favorable to Denny. Those facts may be summarized as follows: Denny was a floor finisher by vocation. At the time of the accident, he was engaged in applying a quantity of Seaboard floor sealer to a house which was near completion in Mt. Hope, Alabama. The house was being constructed by Jones Lumber Company, a Tennessee Corporation which builds houses in several states, including Alabama. It is not clear whether Denny worked directly for Jones or for one Strange, a subcontractor of Jones, but the important point is that Denny was using the product in the course of his calling and the product was manufactured by Seaboard.

Denny and two other workers, Wood and Cagle, slept in the house the night before the accident. They had the house closed up due to the cold January weather and they used an electric heater in the bedroom in which they slept. Early in the morning, Denny and Wood arose and went into the kitchen. Denny went into the kitchen first, and, when Wood came in, Denny was having coffee. Denny left the kitchen with a quantity of floor sealer and went toward the front bedroom to begin work. As Denny passed the back bedroom, he rapped on the door to awaken Cagle, who was still sleeping. Denny then went into the front bedroom and began work, and Ca-gle joined Wood in the kitchen.

When Cagle left the back bedroom, he left the door open and the electric heater on. The door to the front bedroom, in which Denny was working, was closed, although Denny probably had a window open. Cagle and Wood were sitting in the kitchen while Denny was working; approximately twenty minutes from the time Cagle woke up and about five minutes from the time Cagle entered the kitchen, he and Wood heard a loud “holler” from Denny. So intense was the heat from the combustion of the floor sealer that Wood and Cagle could not open the door to get out. Wood crashed through a window to escape, and Cagle has no memory as to how he and Denny got out of the house. Wood and Cagle, though severely burned, survived. Denny died two days later.

Of course, it may never be known for certain what occasioned the combustion of the floor sealer. The circumstances certainly point to the open faced, hot coil electric heater in the adjacent bedroom. Denny’s administrator, Wood and Cagle sued Seaboard, and the suits were consolidated. Denny alleged causes of action grounded in negligence, strict liability in tort, implied warranty and wanton conduct. Following a hearing on defendant’s motion for summary judgment, the trial court granted defendant’s motion as against Denny. The district court ruled that Alabama law would govern the substantive aspects of the case. The parties have accepted this ruling on appeal. The district court also necessarily ruled, and Denny conceded, that Alabama courts do not recognize the theory of strict liability in tort, to which Denny originally took no exception here. The court stated that Wood and Cagle had stated good causes of action in negligence but that Denny could not .maintain a cause of action under the Alabama wrongful death act for negligence. The court construed the Alabama wrongful death act as requiring gross negligence or wanton disregard of the consequences by the defendant before an action could be maintained. The court further stated, with reference to • gross negligence or wanton disregard of the consequences, “it is quite clear that the Plaintiffs cannot prove these facts and the Defendant would be entitled to summary judgment in the Denny case.” The trial court also rejected Denny’s implied warranty cause of action under the Uniform Commercial Code (Alabama Code, Title 7A, § 2-314) as stated in the complaint. We are thus faced with three issues on this appeal.

I. Whether the trial court correctly ruled that Alabama law does not recognize ordinary negligence as giving rise to an action for wrongful death?
II. Whether a breach of implied warranty will support a wrongful death action under Alabama law ?
III. Whether the court erred in ruling on motion for summary judgment that defendant’s conduct could not, as a matter of law, be deemed wanton or gross negligence?

An added problem is whether plaintiff should not be allowed to proceed on the theory of strict liability in tort in view of Geohagan v. General Motors Corp., 291 Ala. 167, 279 So.2d 436 (1973).

I

It is familiar learning that, at common law, there was no cause of action for wrongful death. The action died with the person. It is only by virtue of the widespread adoption of wrongful death statutes following Lord Campbell’s Act that such actions are maintainable. Alabama’s statute is:

“Title 7 § 123:
“Action for wrongful act, omission, or negligence causing death.
“A personal representative may maintain' an action, and recover such damages as the jury may assess in a court of competent jurisdiction within the state of Alabama, and not elsewhere for the wrongful act, omission, or negligence of any person or persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, if the testator or intestate could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death. Such action shall not abate by the death of the defendant, but may be revived against his personal representative; and may be maintained, though there has not been prosecution, or conviction, or acquittal of the defendant for the wrongful act, or omission, or negligence; and the damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions. Such action must be brought within two years from and after the death of the testator or intestate.”

On its face, the statute allows a death action to be brought for “the wrongful act, omission, or negligence of any person ... or corporation. . . .” The language “wrongful act, omission, or negligence” appears three times in the body of the act. And it is plainly stated that as a condition for the administrator’s bringing the suit, it must appear that the deceased could have sued for such wrongful act, omission, or negligence had death not occurred. It is clear enough from the statute that, so long as the wrongful act, omission, or negligence is alleged and the deceased could have sued but for his death, the statute recognizes the action. Seaboard contends, however, that the Alabama courts have construed the statute to mean that no action may be brought unless the complaint alleges gross negligence or willful and wanton misconduct. It says that the conduct necessary to come within the purview of the act is the same as that necessary to support an award of punitive damages.

The Alabama wrongful death statute has been in effect since 1872. Seaboard cites no Alabama death cases, and we can find none, which state or hold that negligence will not support a death action. In fact, the Alabama reports are replete with cases illustrating that counts alleging simple or ordinary negligence are sufficient to state a cause of action for wrongful death. E.g., Loveman v. Birmingham Ry., Light & Power Co., 149 Ala. 515, 43 So. 411 (1907); Kansas City, Mobile & Birmingham Ry. Co. v. Sanders, 98 Ala. 293, 13 So. 57 (1892); Richmond & Danville Ry. Co. v. Freeman, 97 Ala. 289, 11 So. 800 (1892); Hubbard v. Thrasher, 26 Ala.App. 252, 157 So. 680 (1934); Brown v. Southeastern Greyhound Lines, 255 Ala. 308, 51 So.2d 524 (1951); Powell v. Atlantic Coast Line Ry. Co., 274 Ala. 533, 150 So.2d 179 (1962). The Supreme Court of Alabama has approved instructions in death eases which charge the jury that defendant may be liable for the failure to use ordinary care. E. g., Brown, supra, instruction No. 28.

While we think it clear that Denny was entitled to have his action proceed on the negligence count, the source of confusion in this case is understandable. The Alabama statute is quite unlike the usual wrongful death act. The life expectancy of decedent at the time of death, his earning capacity, his pain and suffering before death, and the mental anguish of his survivors are all irrelevant considerations under Alabama law. The purpose of the act is not to compensate but to punish. The theory is to prevent homicides by punishing those who cause them. See, generally, Bell v. Riley Bus Lines, 257 Ala. 120, 57 So.2d 612, 615 (1952); Randle v. Birmingham Ry., Light & Power Co., 169 Ala. 314, 53 So. 918 (1910); Richmond & Danville Ry. Co., supra. Thus, the Alabama act is sometimes called a punitive statute and the damages are frequently referred to as punitive. However, damages under the statute are not punitive in the usual legal sense of that word because Alabama allows their recovery in death cases for less than the wanton or malicious conduct, which is the ordinary standard for the imposition of punitive or exemplary damages. Although the use of the word punitive in Alabama jurisprudence, with respect to awards under the death statute, may be unfortunate, we observe that no State is without peculiarities in its law which, while familiar to the native bar, seem ■ strange to outsiders. In any event, as early as 1892, in the case of Richmond & Danville Ry. Co. v. Freeman, 97 Ala. 289, 11 So. 800, the Alabama Supreme Court had referred to such damages as punitive, yet allowed their recovery for negligence. In the Richmond case, the court fully discussed this precise point and spelled out what it meant by punitive damages under the statute and explained the distinction between those damages and exemplary damages in the ordinary legal sense. See Richmond, p. 802; Randle, 53 So. p. 920.

Another source of confusion is the rule in Alabama that a contributorily negligent plaintiff may nevertheless recover from a defendant who is guilty of wanton conduct. For this reason, most of the reported death cases in Alabama include at least one count of willful or wanton misconduct on the part of the defendant. E.g., Brown, supra, 51 So.2d at 526, 527.

Our rejection of Seaboard’s attempt to equate damages under the wrongful death act to exemplary damages, in the traditional sense, is based on other factors. If appellee were correct in its theory that only willful and wanton misconduct may support an award under the death statute, there might be no place in a wrongful death action for the defense of contributory negligence. Yet, in such cases in Alabama, a defendant may plead defenses of contributory negligence, self defense, and assumption of the risk. Breed v. Atlanta, Birmingham & Chattanooga Ry. Co., 241 Ala. 640, 4 So.2d 315 (1941). Appellee’s theory that damages are punitive in the traditional sense is also inconsistent with Alabama law under which an award under the wrongful death act requires no compensatory damages to support a punitive award. E.g., Louisville-Nashville Ry. Co. v. Street, 164 Ala. 155, 51 So. 306 (1910). Punitive damages in the traditional sense normally require a supporting award of compensatory damages. See, generally, 22 Am.Jur.(2d) Damages § 241.

Appellee conceded on oral argument that it knew of no Alabama wrongful death case to support its position, but rather it depends upon guest passenger cases which, by statute, require proof of the breach of a higher degree of care, Lankford v. Mong, 283 Ala. 24, 214 So. 2d 301, and non-death cases in which Alabama follows the general rule that punitive damages, in the ordinary sense of the term, may be awarded for wantonness or such indifference as to amount to intentional wrongdoing. Alabama Great Southern Ry. Co. v. Hill, 93 Ala. 514, 9 So. 722 (1891).

We are unable to find, and our attention has not been invited to, Alabama law, either directly on point or by way of analogy, which supports the construction of the Alabama statute urged upon ps by Seaboard. In a diversity case where the law of the controlling jurisdiction is clear, our duty under Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), is to apply it. We are of opinion that the statutory and case law of Alabama allows a wrongful death action to proceed upon the theory of negligence, and that the trial court’s ruling to the contrary was in error.

II

Appellant contends that Alabama law permits recovery in death actions for breach of implied warranty. The trial court mentioned this cause of action only to state that it was essentially the same as negligence. We must look to the provisions of the Uniform Commercial Code as adopted by Alabama, and the decisions of the Alabama courts to determine whether a death action may be maintained under an implied warranty count. Alabama adopted the UCC, with modifications, in 1966, to apply to transactions entered into and events occurring after midnight, December 31, 1966. Alabama Code, Title 7A, § 10-101. Since the accident in this case occurred on January 19, 1969, the code provisions apply. Section 2-314 of Title 7A of the Alabama Code imposes on a' seller of goods an implied warranty of merchantability. The complaint in this case alleges a breach of that warranty and that such breach was the proximate cause of Denny’s death.

In Geohagan v. General Motors Corp., 291 Ala. 167, 279 So.2d 436 (1973), the Supreme Court of Alabama decided that a cause of action for wrongful death under Alabama law may not arise on account of breach of implied warranty of fitness under the Uniform Commercial Code as there enacted. In that case, the claim against the dealer and General Motors was that, on account of breach of implied warranty of fitness, plaintiff’s decedent was killed in an accident occurring September 5, 1968. The car was purchased new from the dealer on September 30, 1967.

The facts of the instant case and Geo-hagan are indistinguishable so far as they concern the application of the substantive law of Alabama. Accordingly, applying Alabama law, Erie Railroad, supra, we are of opinion the district court was correct in its view that this case may not be maintained as a death action on account of breach of implied warranty of fitness under the Uniform Commercial Code.

Ill

The complaint in this case alleged that Seaboard was guilty of wanton conduct. On defendant’s motion for summary judgment, the trial court ruled against plaintiff Denny on the issue of wantonness. The court stated:

“This, then, is almost a manslaughter rule, a gross negligence rule. Clearly the record here does not show that under any circumstances the Defendant could be held liable under such a standard. Indeed, the question with reference to general negligence is a relatively close one but insofar as gross negligence or wanton disregard of the consequences, it is quite clear that the Plaintiffs cannot prove these facts and Defendant would be entitled to summary judgment in the Denny ease.”

This ruling meant several things for Denny. In the first place, it meant he had no cause of action at all because the trial court was of opinion that neither ordinary negligence nor breach of implied warranty would support a wrongful death action. And, even if ordinary negligence would support a death action, if defendant proved contributory negligence, plaintiff could not prevail because in that event plaintiff would have to show conduct on the part of the defendant amounting to wantonness.

We are of opinion that the trial court erred in granting summary judgment on the issue of wantonness. We believe that an affidavit filed by plaintiff’s expert precluded the necessary conclusion under Rule 56 that there is no genuine issue as to any material fact. See, generally, Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed. 2d 458 (1962). The affidavit of Dr. James A. Church recites that Church tested a quantity of the same kind of sealer that Denny was using at the time of the explosion. Church says, among other things, that:

“Indeed so hazardous are the fumes, even in low concentrations, and so difficult is it to diffuse these fumes to a sufficiently low concentration level that the only adequate manner of diffusion would be through the use of some sorb of forced ventilation, with precautions of course being necessary to assure the absence of ignition sources in such a . system. Any ventilation short of this .would < be insufficient.
“Moreover, the danger involved could and should have been recognized by any competent practicing chemist, or any knowledgatole person familiar with paint and lacquer manufacture, and injuries should have been anticipated and were reasonably certain to occur in the use of such a hazardous material.”

Dr. Church concluded that the material was so hazardous that it should not even be on the market. Seaboard argues that what it should have known is insufficient to support a finding of wanton conduct under Alabama law. It says that only one other incident involving the product at issue herein is reported and in that case Seaboard won the lawsuit; Denny himself had used the product at least fifty times without unusual consequence; the product was adequately labeled; and the applicable United States Government agency approved the product for sale to the general public. While the Church affidavit may certainly have been subject to strong attack, we believe it sufficient to preclude summary judgment in defendant’s favor on this point without further factual development.

Under Alabama law, causes of action predicated upon wanton or willful misconduct turn on the state of mind of the actor with which the' act or omission complained of is done or omitted. Ex parte McNeil, 184 Ala. 420, 63 So. 992, 993 (1913). Where state of mind is at issue, summary disposition should be sparingly used. See Poller, supra, 368 U.S. at 473, 82 S.Ct. 486.

In Rosen v. Lawson, 281 Ala. 351, 202 So.2d 716, 720 (1967), wantonness is defined as follows:

“In wantonness, the party doing the act or failing to act, is conscious of his conduct, and without having the intent to injure, is conscious, from his knowledge of existing circumstances and conditions, that his conduct will likely or probably result in injury.”

While Denny may find proof of wantonness by Seaboard difficult, we think summary rejection of his contention was inappropriate.

We express no opinion as to the merits of whether or not Seaboard’s alleged acts or omissions may have been wanton. Neither do we express an opinion as to whether or not such should be submitted to a jury. But, in cases such as this in which affidavits filed in support of, and opposed to, summary judgment, indicate there may be a dispute of material fact at the trial, we do apply the rule as previously stated in this court in Pierce v. Ford Motor Co., 190 F.2d 910, 915 (4th Cir. 1951), and Kirkpatrick v. Consolidated Underwriters, 227 F.2d 228, 231 (4th Cir. 1955):

“Even in cases where the judge is of opinion that he will have to direct a verdict for one party or the other on the issues that have been raised, he should ordinarily hear the evidence and direct the verdict rather than attempt to try the case in advance on a motion for summary judgment, which was never intended to enable parties to evade jury trials or have the judge weigh evidence in advance of its being presented.”

IV

As a part of his additional memorandum filed at our instance (see n. 2), Denny now presents an additional problem.

In Geohagan, in the concurring opinion of Mr. Justice Maddox, is found the statement that an action for wrongful death will lie in Alabama under the “. . . tort doctrine of strict liability as spelled out in the Restatement (Second) of Torts, § 402A (1965) . . . . ” 279 So.2d at 442.

Denny’s complaint did include a count based on strict liability in tort as set forth in § 402A. At a hearing in the district court, it was conceded that the doctrine of strict liability in tort under § 402A did not apply in Alabama, and the district court noted this concession in its opinion.

Denny now asks us to direct the district court to allow him to proceed on the theory of strict tort liability, although the point has not been heretofore raised in this appeal.

While we must decline at this time to direct the district court to allow Denny to proceed on the theory of strict liability in tort, especially because that court has not before considered the point other than in passing by way of noting the concession, we do believe that the point should be raised in the district court on remand.

Because the facts here appear to indicate the concession was improvidently made, plaintiff having no advance knowledge of the concurring opinion in Geo-hagan, it may very well be that he is entitled to relief under FRCP 60(b)(1) (if timely), or 60(b)(6), or both. We are confident the district court will give consideration to a proper motion on remand, and there is no indication it will exercise its discretion unwisely.

In summary, we are of opinion that (1) ordinary negligence is recognized as giving rise to a cause of action under the Alabama wrongful death statute, (2) bx-eaclx of implied warranty is not recognized as giving rise to a cause of action under the Alabama wrongful death statute, (3) the district court erred in granting summary judgment on the issue of wantonness, and (4) the district court ought to give consideration to a motion (as to the merits of which we now express no opinion) seeking leave to px'o-ceed on the theory of strict liability in tort.

The case must be remanded for proceedings not inconsistent with this opinion.

Affirmed in part, reversed in part, and remanded.

      . See part IV of this opinion.

      . This opinion was originally filed July 9, 1973. Following the original filing, the court learned of the case of Geohagan v. General Motors Corp., 291 Ala. 167, 279 So. 2d 436 (1973), then unpublished, which had been decided in May, and in which a rehearing had been denied on July 5th of this year. The court procured a copy of the opinion from the Alabama Supreme Court. On July 25, 1973, having received no motion for a rehearing, but before the mandate had issued, on our own motion we ordered that issuance of the mandate in this case be stayed and requested supplemental memoranda in view of Geohagan. Such memoranda have now been filed, and the ease was resubmitted in September.


source: Caselaw Access Project

author: FRIENDLY, Circuit Judge: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Pasquale CIOFFI and Eugene Robert Ciuzio, Appellants.
    Nos. 984, 985. Indexes 73-1339, 73-1257.
    United States Court of Appeals, Second Circuit.
    Argued June 21, 1973.
    Decided July 16, 1973.
    Rehearing Denied Oct. 1, 1973.

      Joel A. Brenner, Mineola, N. Y. (Richard I. Rosenkranz, New York City, of counsel), for appellants.
    Peter M. Shannon, Dept. of Justice, Washington, D. C. (Robert Morse, U. S. Atty., E. D. N. Y., and Sidney M. Glazer, Washington, D. C., of counsel), for appellee.
    Before FRIENDLY, FEINBERG and MANSFIELD, Circuit Judges.
   FRIENDLY, Circuit Judge:

Count 1 of the indictment in this case charged that, appellants Cioffi and Ciu-zio “knowingly did possess with intent to use and sell, approximately four hundred forged and counterfeited postage stamps of the denomination of six cents” in violation of 18 U.S.C. § 501; count 2 charged that they had conspired to violate the same section by agreeing to commit the acts set forth in count 1. After trial before Judge Dooling and a jury in the District Court for the Eastern District of New York, they were convicted on both counts and were given concurrent sentences.

The Government’s evidence was as follows: On October 2, 1970, Michael Fiore, an acquaintance of Cioffi and Ciuzio, met them at Cioffi’s barber shop in Plainview, N. Y. Cioffi told Fiore he had some counterfeit stamps and money and asked if Fiore knew anyone who would take the contraband out of the country. Cioffi then handed him a sheet of 100 6¡é stamps and a $100 bill and told him to give the stamps to “your man” and see if he was interested.

Shortly thereafter Fiore met with Secret Service Agent Daniel Marchitello and two other investigators. He told Marchitello that .Cioffi and Ciuzio were selling counterfeit stamps and showed him the 100 stamp sample. Marchitello took 50 and gave the other 50 back to Fiore. That evening Marchitello and Fiore met Cioffi and Ciuzio outside the barber shop. Fiore introduced Marchi-tello as “my man here from Cuba,” and the defendants agreed to speak with him. Cioffi said he had $500,000 worth of counterfeit 6f! stamps and asked if Marchitello could obtain a perforating machine. After a brief negotiation over the price, Ciuzio agreed to a figure of 1 per stamp if Marchitello would buy a large number and take them out of the country. During the discussion, Cioffi indicated that in addition to the stamps, he could produce between $5,000,000 and $15,000,000 of counterfeit currency. If Marchitello would agree to purchase the stamps, Cioffi told him, he would not require him to put up any “front money” for the currency. Marchitello then asked Cioffi for a sample sheet to try on his perforating machine and Cioffi sent Ciuzio to pick one up. Cioffi told Mar-chitello he wanted a commitment on the stamp purchase as soon as possible; Marchitello agreed to contact his own people and get back to Cioffi later. Ciu-zio then returned, handed Marchitello a sheet of 400 counterfeit stamps, and demanded an answer by 11 A.M. the next day. Because he feared possible interference with another agent’s investigation, Marchitello never reestablished contact with either Cioffi or Ciuzio.

Testifying in their own defense, appellants denied that these events had occurred. They attempted to impeach Marchitello’s testimony by focusing on certain inconsistencies in his account of the events of October 2, and attacked Fiore’s testimony on the ground that there was bad blood between Cioffi and Fiore because Fiore had refused to repay $2,000 that Cioffi had lent him.

I.

We must first consider various contentions of appellants based on their earlier trial for a related offense. The earlier prosecution was also brought on a two count indictment and concerned the very same course of conduct. The first count charged that Cioffi and Ciu-zio had attempted to sell stamps they knew to be falsely made, forged and counterfeited, in violation of 18 U.S.C. § 472; the second count charged a conspiracy to violate the same section. The alleged overt acts were the same in both indictments. The evidence at the trial under the § 472 indictment, also before Judge Dooling, was much the same as under the § 501 indictment.

At the close of the first- trial the judge granted a motion by Cioffi for acquittal on the substantive count. Although we might well have concluded otherwise, Judge Dooling ruled that the Government’s evidence was insufficient to show an attempt to sell the stamps. The Government then moved for dismissal of the substantive count as to Ciuzio and this was granted. The jury hung on the conspiracy count. Instead of seeking a retrial on that count, the Government abandoned its efforts under § 472 and procured the instant indictment under § 501. Defendants claim that the second prosecution was barred by the Double Jeopardy clause or, in the alternative, that most of the Government’s evidence should have been excluded on grounds of collateral estoppel, see Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); United States v. Kramer, 289 F.2d 909 (2 Cir. 1961).

The double jeopardy question with respect to the substantive count of the second indictment is not free from difficulty. If the true test remains Chief Justice Shaw’s famous formulation in Morey v. Commonwealth, 108 Mass. 433, 434 (1871), quoted with approval in Ex parte Nielsen, 131 U.S. 176, 187-188, 9 S.Ct. 672, 33 L.Ed. 118 (1889); Carter v. McClaughry, 183 U.S. 365, 395, 22 S.Ct. 181, 46 L.Ed. 236 (1902); Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 55 L.Ed. 489 (1911); Ebeling v. Morgan, 237 U.S. 625, 630-631, 35 S.Ct. 710, 59 L.Ed. 1151 (1915); and Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), namely, that “the evidence required to support a conviction upon one of them [the indictments] would have been sufficient to warrant a conviction upon the other,” the double jeopardy defense must fail. Proof of possession with intent to use or sell is sufficient to support a conviction under § 501, but it would not satisfy the requirements of the charge made under § 472 unless the intent to sell ripened into an attempt. Moreover, proof of an attempt to sell, without evidence of possession, would suffice for a conviction under § 472 but not under § 501.

Although this formulation has never been expressly rejected by the Supreme Court or this circuit, it has been subject to serious criticism. Moreover, the Supreme Court has rather conspicuously refrained from employing the Morey formulation in recent cases such as United States v. Ewell, 383 U.S. 116, 124-25, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); Waller v. Florida, 397 U.S. 387, 390, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970); and Robinson v. Neil, 409 U.S. 505, 511, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973). In at least two cases, Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960), and Marakar v. United States, 370 U.S. 723, 82 S.Ct. 1573, 8 L.Ed.2d 803 (1962), the Government has avoided testing the continued validity of the traditional formulation by requesting the' dismissal of convictions that might have called for reconsideration of the Morey rule. The Government there insisted that its requests for dismissals were based, not on a violation of double jeopardy principles, but on its own policy “that several offenses arising out of a single transaction should be. alleged and tried together and should not be made the basis of multiple prosecutions, a policy dictated by considerations both of fairness to defendants and of efficient and orderly law enforcement,” 361 U.S. at 530, 80 S.Ct. at 451. In both Petite and Marakar, three Justices would have rejected the Government’s “policy of fairness” approach and would have based reversal directly on the Double Jeopardy clause. In United States v. Sabella, 272 F.2d 206, 211 (2 Cir. 1959), we held that the Double Jeopardy clause prohibited a second prosecution after a conviction stemming from the same narcotics sale. Although this court there reaffirmed the Morey doctrine, we refused to extend it to the point of rigid formalism. While the two charged offenses in Sabella each technically included one unique element, the Government was not required to prove either in order to make out a prima fa-cie case. In effect, then, the same proof could support both convictions. In view of the shadow that has been cast over Morey, one is justified in speculating that, unless prosecutors take to heart the recommendations for joinder of all offenses arising out of the same criminal episode or transaction, double jeopardy will be a fertile ground for Supreme Court development in the next decade.

Whatever the future of the Morey formulation may be in the Supreme Court, the facts of this case afford no such temptation to temper it as existed in Sabella. The very basis for the acquittal in the first trial was the judge’s belief that the Government had not presented sufficient evidence to show an attempt to sell; he thought apparently that the’ evidence showed only possession, but that the defendants’ alleged acts had not gone far enough to constitute an attempt. There was thus no bar to a new prosecution under § 501 unless, which appellants have not contended and, because of the required showing of possession, could not reasonably contend, the latter was a lesser included offense.

In any event, if the concurrent sentence doctrine retains some vitality after Benton v. Maryland, 395 U.S. 784, 789-92, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) , compare United States v. Febre, 425 F.2d 107, 113 (2 Cir.), cert, denied, 400 U.S. 849, 91 S.Ct. 40, 27 L.Ed.2d 87 (1970) ; United States v. Gaines, 460 F. 2d 176, 178-80 (2 Cir.), cert, denied, 409 U.S. 883, 93 S.Ct. 172, 34 L.Ed.2d 139 (1972), the double jeopardy objection to the substantive count under § 501 is of little practical importance. The acquittal under the substantive count of the first indictment would not have barred retrial of the conspiracy count on which the jury had hung, although the Government might have been confronted with serious restrictions on the evidence it could introduce, cf. United States v. Kramer, supra, 289 F.2d at 915-16. By submitting that count to the jury, the judge clearly indicated his belief that the evidence was sufficient to warrant a finding that defendants had agreed to attempt to sell the stamps, although not to show they had actually made the attempt. As has been stated countless times, “[t]he essence of the conspiracy charge is an agreement,” see Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358, 364, 98 L.Ed. 435 (1954); there can be a valid conviction for conspiracy even though the object is never attained. See Developments in the Law, Criminal Conspiracy, 72 Harv.L.Rev. 920, 925-27, 944-45 (1959). The same reasoning leads a fortiori to the conclusion that acquittal on the substantive charge under § 472 would not bar, as a matter of double jeopardy, subsequent trial and conviction on the charge of conspiring to violate § 501.

There remains for consideration, on this branch of the case, appellants’ contention that even if the Double Jeopardy clause did not bar the second prosecution, principles of issue preclusion should have prevented the Government from reintroducing the evidence tendered at the first trial. Appellants rely on the portion of our Kramer decision which held that, after the defendants were acquitted on several charges related to the burglary of two Connecticut post offices, the Government could not introduce evidence in a subsequent prosecution to prove that the defendants themselves burglarized the post offices or were responsible for whoever did. 289 F.2d at 914-916. Kramer, however, is readily distinguishable from this ease. Like Ashe v. Swenson, supra, Kramer was the rare case where it was possible to determine with certainty what the jury in the earlier prosecution had decided. Here there is absolutely no basis for belief that when the judge dismissed the substantive count in the § 472 trial, he determined that the evidence was insufficient to show that defendants possessed the counterfeit stamps with intent to use or sell them. In its endeavor to prove the intent required by § 501, the Government was not obliged to truncate its evidence and eliminate parts that might show how far the intent had gone.

II.

Although § 501 is violated by possession “with intent to use or sell,” the indictment under which Cioffi and Ciuzio were convicted charged possession “with intent to use and sell.” The judge’s proposed charge was in the disjunctive. At the request of trial counsel for Cioffi and without objection from counsel for Ciuzio or the Assistant United States Attorney, the judge agreed to delete the words “or sell.” However, on two occasions, the phrase “use or sell” remained in the charge; this inconsistency was not called to the court’s attention by counsel.

Defendants contend that the striking of the words “and sell” was an impermissible amendment of the indictment within the condemnation of Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1886), and its progeny. Apart from the question whether defendants could be heard to complain of an error which counsel for one of them -introduced and in which counsel for the other acquiesced, it appears settled that indictments worded in the conjunctive, charging violations of statutes worded in the disjunctive, can be supported by proof of either of the conjoined means of violating the act. See United States v. Barbato, 471 F.2d 918 (1 Cir. 1973); Gerberding v. United States, 471 F.2d 55 (8 Cir. 1973); United States v. McCann, 465 F.2d 147 (5 Cir. 1972); Joyce v. United States, 454 F.2d 971 (D.C. Cir. 1971); United States v. Price, 444 F.2d 248 (10 Cir. 1971); McGriff v. United States, 408 F.2d 333 (9 Cir. 1969). Since an instruction charging possession with intent to use or sell would have been permissible, the amendment of the indictment to charge only possession with intent to use did not constitute prejudicial error.

However, we must reverse the convictions in this case because the judge erred in instructing the jury as to the definition of the word “use.” After due objection, he told the jury:

The Government must show that the defendant intended to use the stamps. If you conclude that there was an intention to use the sheet of stamps, Exhibit One, as a sample to induce the purchase of a larger quantity of similar stamps, then you may find from that evidence that there was an intention to use the stamps within the meaning of the indictment.

Both the context and the history of the statute indicate that “use” in § 501 means use for a postal purpose, not “use” in a broader, colloquial sense. It is hard to believe, for example, that the knowing use of bogus stamps for a table-cover or wall decoration would violate § 501. On this basis, the proffer of a sample of unperforated stamps to induce a sale may be relevant to show an intent (§ 501) or attempt (§ 472) to sell, but it hardly seems to show an intention to “use” for postal purposes. Even if the evidence were sufficient to show an intention to use in the limited sense, the judge’s instructions permitted the jury to convict appellants for a kind of “use” that exceeds the contemplation of the statute.

Section 501 can be traced back to § 3 of an 1851 act, 9 Stat. 589-90, penalizing “any person who shall forge or counterfeit any postage stamp ... or shall make or print, or knowingly use or sell, or have in his possession with intent to use or sell, any such false, forged, or 'counterfeited stamp.” While these words alone are no clearer than § 501 with respect to the meaning of “use,” significant aid is provided by the immediately succeeding section of the same act, which penalizes any person who “shall use, or attempt to use, in prepayment of postage any postage stamp which shall have been before used for like purposes.”

The 1851 legislation was carried forward into a massive act of June 8, 1972, entitled “An Act to revise, consolidate and amend the Statutes relating to the Post-office Department.” Section 178, the analogue of present § 501, penalized

any person who shall forge or counterfeit any postage stamp, . . . ; [any person] who shall make or print, or knowingly use or sell, or have in . possession with intent to use or sell, any such . . . forged or counterfeited postage-stamp .

17 Stat. 305 (1872). In the preceding § 177 Congress indicated rather clearly what it meant by “use” by saying, in language drawn from § 4 of the 1851 statute, that

any person who shall use or attempt to use, in payment of the postage on any mail-matter conveyed, by mail or otherwise, any postage-stamp or stamped envelope, or any stamp cut from any such stamped envelope, which has been before used for a like purpose, shall forfeit and pay fifty dollars.

Although § 177 migrated to a different title in the Revised Statutes of 1875, while § 178 became §■ 5464, it is reasonably clear that the previous meaning of postal use was continued.

There was no evidence in this case that defendants had any intention to use the counterfeited stamps for large scale mailing of letters; the evidence was rather that they were intent on a sale. In short, when the judge redacted the indictment, he cut out the wrong word; the case should have been submitted to the jury on the basis of possession with intent to sell rather than possession with intent to use. If the judge’s action was based on a belief of insufficiency of the evidence to show possession with intent to sell, he was mistaken. From the evidence presented at trial, the jury could permissibly infer that defendants intended to sell the Sheet of 400 counterfeit stamps they gave, to Marchitello and that they had access to a much larger number of stamps which they offered to sell to Marchitello’s “people.”

There remains the question whether defendants can be tried again under the same indictment, with the jury this time instructed that it can convict on proof of intent to sell, a charge which the judge erroneously removed from the indictment at the defendants’ request and which we direct him to restore. Plainly they can be. It is settled that when a defendant has his conviction reversed on appeal, the double jeopardy clause does not prevent his retrial for the same offense. See Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1, 4-8 (1960). We see no tenable distinction between a case like this where defendants have procured a reversal because the judge submitted the indictment to the jury on a wrong theory and one where they procured reversal because the judge submitted a defective indictment, as in the classic case of United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). Indeed, this case is a fortiori to Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950), which sustained the power of courts of appeals to reverse and remand for a new trial although the prosecution’s evidence at the first trial was insufficient.

In view of our disposition of the case, we need not discuss appellants’ other points beyond saying that we agree with the judge’s ruling which admitted Mar-chitello’s testimony concerning Cioffi’s offer to sell him the counterfeit currency, see United States v. Deaton, 381 F. 2d 114 (2 Cir. 1967); United States v. Kaufman, 453 F.2d 306, 310-11 (2 Cir. 1971), and the many cases there cited. We also agree with the trial court’s ruling that, after Cioffi had testified about his $2,000 loan to Fiore, the Government could ask whether Cioffi had not charged interest at the rate of $60 a week.

The convictions are reversed and the cause is remanded for a new trial consistent with this opinion.

ON PETITION FOR REHEARING

PER CURIAM:

The defendants’ petition for rehearing is addressed solely to the portion of our decision, slip opinion at 501, which held that they could be retried for violation of 18 U.S.C. § 501 on the basis of having possessed counterfeit stamps with intention to sell; they contend that the judge’s redaction of the indictment constituted an acquittal, even though it came about in consequence of their erroneous argument that the evidence was insufficient to show possession with intention to sell.

Petitioners’ initial error is in reading the statute as if it defined two offenses, whereas in fact it defines only one; an accompanying intention either to use or to sell is sufficient to make the possession of counterfeit stamps a crime. Since the judge allowed the case to go to the jury and the jury convicted, neither the judge nor the jury could have intended to acquit the defendants of possession with guilty intention. Indeed, the judge made clear that he believed the jury could find that the defendants possessed the counterfeit stamps with an intention to use them “to induce the sale of larger quantities” over which the jury could have found they had constructive possession; this is all that is needed to justify a conviction of possession with intention to sell.

The case is thus analogous to one where a defendant procures a reversal on the basis of a faulty instruction rather than to an erroneous direction of acquittal ; and the principle of United States v. Ball, 163 U.S. 662, 671-672, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), particularly as explicated by Mr. Justice Harlan in United States v. Tateo, 377 U.S. 463, 465-466, 84 S.Ct. 1587, 12 L.Ed. 2d 448 (1964), forbids acceptance of the defendants’ argument. See also United States ex rel. Jackson v. Follette, 462 F. 2d 1041 (2 Cir.), cert, denied, 409 U.S. 1045, 93 S.Ct. 544, 34 L.Ed.2d 496 (1972).

The petition for rehearing is denied.

      . For convenience, we set forth below the relevant portions of the text of the statutes forming the basis for the two indictments :
      18 U.S.C. § 472: Uttering counterfeit obligations or securities. Whoever, with intent to defraud, passes, utters, publishes, or sells, or attempts to pass, utter, publish, or sell, . . any falsely made, forged, counterfeited, or altered obligation or other security of the United States, shall be fined not more than $5,000 or imprisoned not more than fifteen years, or both. 18 U.S.C. § 501: Postage stamps, postage meter stamps, and postal cards.

      Whoever makes or prints, or knowingly uses or sells, or possesses with intent to sell, any : . . forged or counterfeited postage stamp, postage meter stamp, stamped envelope, postal card, die, plate, or engraving;
      Shall be fined not more than $500 or imprisoned not more than five years, or both.

      . The Government does not dispute that the dismissal granted on its motion had the same effect as the acquittal directed by the judge.

      . Although it would be rare for a seller not to have at least constructive possession, such a case is conceivable, e. g., if A, a middleman, sells B counterfeit owned by and in the possession of C, and the contraband is delivered directly to B by O. The same circumstances could arise, of course, in the case of an attempted sale.

      . See the separate opinion of Mr. Justice Brennan in Abbate v. United States, 359 U.S. 187, 196, 201, 79 S.Ct. 666, 3 L.Ed. 2d 729 (1959) ; his concurring opinion, joined by Justices Douglas and Marshall, in Ashe v. Swenson, supra, 397 U.S. 448, 90 S.Ct. 1189; and Note, Twice in Jeopardy, 75 Yale L.J. 264 (1965). See also Mr. Justice Schaefer’s Traynor lecture, Unresolved Issues in the Law of Double Jeopardy: Waller and Ashe, 58 Calif.L. Rev. 391 (1970). No small part of the difficulties in double jeopardy law is traceable to the fact that the same tests have been applied to acquittals and convictions, although the policy considerations relative to reprosecution are quite different.

      . With tlie support of Justices Douglas and Marshall, Justice Brennan has continued to hammer away at the Court’s reluctance to consider anew what constitutes the “same offence” for double jeopardy purposes. Sounding a theme that originated with his separate opinions in Abbate and Ashe, he has pressed for adoption of a constitutional requirement of joinder for all charges arising out of a “single criminal act, occurrence, episode or transaction,” in concurrences, see Simpson v. Florida, 403 U.S. 384, 387, 91 S.Ct. 1801, 29 L.Ed.2d 549 (1971) ; Harris v. Washington, 404 U.S. 55, 57, 92 S.Ct. 183, 30 L.Ed.2d 212 (1971) ; Robinson v. Neil, 409 U.S. 505, 511, 93 S.Ct. 876, 35 L. Ed.2d 29 (1973), and in dissents from denials of certiorari, see Duncan v. Tennessee, 405 U.S. 127, 130, 92 S.Ct. 785, 31 L.Ed.2d 86 (1972) (writ dismissed as improvidently granted) ; Miller v. Oregon, 405 U.S. 1047, 92 S.Ct. 1321, 31 L.Ed.2d 590 (1972) ; Grubb v. Oklahoma, 409 U.S. 1017-19, 93 S.Ct. 450, 34 L. Ed.2d 309 (1972).

      . In the recent decision in United States v. Nathan, 476 F.2d 456, 458-59 (2 Cir. 1973), the court rejected a double jeopardy attack on a second narcotics prosecution (for conspiracy to violate 21 U.S.C. §§ 173, 174) allegedly relating to the same conduct as was involved in a prior federal prosecution in Florida where the complaining defendant had pleaded guilty to conspiracy to violate 26 U.S.C. § 4704(a). Because of the essential difference in the nature of conspiracy and substantive offenses, it was not true in Nathan — as it was in Sabella —that “the government could sustain the second indictment with the selfsame evidence needed to prove the first.” 272 F.2d at 210. In addition, there was doubt in Nathan whether the second conspiracy charge was the same as the first, see 476 F.2d at 458 n.4; there was no such doubt with respect to the two indictments for substantive crimes in Sabella. The Nathan court did not address itself to Sabella, which counsel failed to bring to its attention.

      . See, e. g., ALI, Model Penal Code-§§ 1.07(2), 109 (Proposed Official Draft 1962) ; ABA, Minimum Standards for Criminal Justice, Joinder and Severance 1.1, 1.3 (1968).

      . Compare Justice Schaefer’s perceptive remark: “The defense of collateral estop-pel will not often be available to a criminal defendant .... Collateral estoppel is therefore of limited value because it is not often possible to determine with precision how the judge or jury has decided any particular issue.” Schaefer, supra note 4, at 394.

      . The inference that Congress was thinking in terms of postal use is heightened by a still earlier precursor of § 501, 5 Stat. 749 (1845), which provided : That if any person or persons shall forge or counterfeit, or shall' utter or use knowingly, any^ounterfeit stamp of the Post Office Department of the United States issued by authority of this act within the United States, or the post office stamp of any foreign Government, he shall be adjudged guilty of felony ....

        The fact that here there was no prohibition of sale indicates that, in condemning “use” of counterfeit stamps, the purpose of Congress was to protect the postal revenues.

      . An 1847 act, which the 1851 statute superseded, further supports the limited construction of the word “use” in the early postal laws. Like the 1851 act, that statute first provided that the Postmaster General should prepare and distribute stamps for the prepayment of postage. Clearly referring to “use” in the postal sense, the act authorized a deputy postmaster to “sell or dispose of any stamps so received ... to any person who may wish to use the same.” (Emphasis supplied). The act then added two penal provisions. The first made it unlawful “for any deputy postmaster to prepare, use, or dispose of any postage stamps not authorized by and received from the Postmaster General”; the second contained a more general prohibition against making, uttering, or forging any postage stamp. 9 Stat. 201 (1847).

      . Section 177 became § 3923 of the Revised Statutes. While § 178 appeared in the title dealing with federal crimes, § 177 was placed in title 46, which collected the statutes relating to the postal service. Also incorporated in that title was § 3924, which was drawn from § 4 of the 1851 act, and which, once again, clearly indicated that the word “use” was intended to be limited to postal use. Section 3924 made it illegal for Post Office employees to
      willfully and knowingly use, or cause to be used, in prepayment of postage, any postage-stamp, . . . which has already been once used for a like purpose or [to] remove, or attempt to remove, the canceling or defacing marks from any such postage-stamp with intent to use or cause the use of the same a second time, or to sell or offer to sell the same, or [to] remove from letters or other mail the stamps attached to the same in payment of postage with intent to use the same a second time for a like purpose, or to sell, or oiler to sell, the same.


author: PER CURIAM.

text:
    Benjamin B. JACKSON, M.D., Plaintiff-Appellant, v. NORTON-CHILDREN’S HOSPITALS, INC., and Certain Committees and Directors thereof, Defendants-Appellees.
    No. 73-1303.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct 2, 1973.
    Decided Nov. 13, 1973.
    Benjamin B. Jackson, M. D., pro se.
    Joseph E. Stopher, Louisville, Ky., for defendants-appellees; Edward H. Stopher, Boehl, Stopher, Graves & Deindoerfer, Bert T. Combs, Tarrant, Combs, Blackwell & Bullitt, John T. Ballantine, Ogden, Robertson & Marshall, Joe A. Wallace and Hubert T. Willis, Louisville, Ky., on brief.
    Before McCREE and MILLER, Circuit Judges, and KRUPANSKY, District Judge.

       The Honorable Robert B. Krupansky, United States District Judge for the Northern District of Ohio, sitting by designation.

   PER CURIAM.

The plaintiff, a licensed physician, sued the hospital for discharging him from the hospital staff, claiming federal jurisdiction on the basis of 42 U.S.C. Secs. 1983 and 1985, and also on the basis of the general federal question statute, 28 U.S.C. See. 1343. The district court in a carefully reasoned opinion sustained the defendant’s motion for summary judgment and dismissed the plaintiff’s action. He was of the opinion that the action of the defendant hospital did not constitute state action within the meaning of Sec. 1983, notwithstanding the receipt by the hospital of Hill-Burton funds and the existence of state regulations governing hospitals. A number of cases support this holding and we are of the opinion that it is correct. Whenever state action has been discovered in the activities of an ostensibly private hospital something more than a partial federal funding is involved. See Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir. 1973); O’Neill v. Grayson County Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973); Place v. Shephard, 446 F.2d 1239 (6th Cir. 1971); Chiaffitelli v. Dettmer Hospital, Inc., 437 F.2d 429 (6th Cir. 1971); Meredith v. Allan County War Memorial Hospital Commission, 397 F.2d 33 (6th Cir. 1968).

The district court further found that plaintiff was accorded due process of law in his discharge even if it should be assumed that state action was present. The record fully supports the conclusion that the plaintiff was accorded proper notice and a fair hearing at all three levels of the administrative process prior to his discharge, including the Personnel Relations Committee, the Executive Committee, and the Board of Directors Medical Staff Liaison Committee. Despite proper notice, plaintiff failed to attend the hearings or to present any evidence to controvert the charges which had been made against him in connection with his conduct.

As to the Sec. 1985 claim, the district court found that the statute was not applicable so as to confer federal jurisdiction inasmuch as the record wholly failed to reveal a “class-based invidious discriminatory animus” or intent on the part of the alleged conspirators. Our examination of the record convinces us that this finding of the district court is entirely correct.

The judgment of the district court dismissing the action is therefore affirmed.

Although we are constrained to affirm the judgment of the district court for the reasons stated herein, we express no opinion concerning the merits of the appellant’s contention's.


author: PER CURIAM:

text:
    In the Matter of PALMAR MILLINERY CO., INC., Debtor-Appellant, v. Morton SPAR, Claimant-Appellee.
    No. 13, Docket 72-1547.
    United. States Court of Appeals, Second Circuit.
    Argued Oct. 15, 1973.
    Decided Nov. 19, 1973.

      Abel Jack Schwartz, New York City (Arutt, Nachamie, Benjamin & Rubin, New York City, on the brief), for debtor-appellant.
    Joel K. Bohmart, New York City (Up-ham, Meeker & Weithorn, New York City, on the brief), for claimant-appellee.
    Before FEINBERG and TIMBERS, Circuit Judges.

       The parties agreed in open court to accept a panel of two judges.

   PER CURIAM:

In October 1969, Morton Spar and Paul Schoenfeld each owned 50 percent of the stock of Palmar Millinery Co., Inc., and .a related corporation and were also two of the principal shareholders of a company in the neckwear business. As part of a business deal under which Schoenfeld and Spar went their separate ways, Spar and Palmar entered into an agreement under which Palmar bought Spar’s shares in Palmar for $75,500, $52,500 payable at the closing and the remainder payable in 23 monthly installments of $1,000 each. This left Schoen-feld as the sole stockholder of Palmar. The initial lump sum and the first nine installments were paid according to the agreement. In July 1970, however, with the last 14 installments unpaid, Palmar filed a petition for a Chapter XI arrangement in the United States District Court for the Eastern District of New York. Shortly thereafter, Spar filed a claim for the remaining installments, all of which had become due under an acceleration clause in the original agreement, and Palmar raised various defenses and counterclaims. After a lengthy trial, the Referee in Bankruptcy awarded Spar a general claim of $8,122.21 against the estate of Palmar. The district court, Walter Bruchhausen, J., confirmed the award.

Palmar raises a number of claims on this appeal. We have considered them all and they are without merit. Palmar argues that it had insufficient surplus to redeem its stock both when the agreement was made in October 1969 and also thereafter when the last 14 notes became due. As to the former claim, the entire series of transactions by which Schoen-feld and Spar separated their business interests and the accounting treatment of key assets indicate that the referee and the district judge were justified in finding that Palmar’s surplus was sufficient when the payment of $52,500 was made. As to the alleged insufficiency of surplus when the notes were accelerated, the possible treatment of Spar’s claim as a general unsecured claim under the plan of arrangement was known to the creditors, who did not object. Moreover, Schoenfeld, as sole stockholder of Palmar, would get an undeserved windfall should Spar’s claim be disallowed, since the claims of all creditors have been discharged by the plan. Under these circumstances, we are not inclined to set aside the concurrent findings of referee and district judge. Palmar’s remaining arguments do not require discussion.

Judgment affirmed.

      . Similarly, Schoenfeld’s interest in the neck-wear company was sold to Spar.

      . Spar’s claim for the 14 installment notes was reduced by offsets allowed to Palmar.


text:
    UNITED STATES of America, Appellee, v. Delmar Earl CHRISCO, Appellant. UNITED STATES of America, Appellee, v. Lewis HOWELL, Appellant.
    Nos. 73-1101, 73-1145.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 12, 1973.
    Decided Nov. 20, 1973.
    Robert H. Garfield, St. Louis, Mo., for appellant Howell.
    Thomas C. Palmer, St. Louis, Mo., for appellant Chrisco.
    Michael W. Reap, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before GIBSON and BRIGHT, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   ORDER OF REMAND

We considered this appeal at the September term of this court. Among other things, appellant Delmar Earl Chrisco contends that he was denied due process of law by being removed from the courtroom during a portion of the process of impaneling jurors in violation of F.R.Crim.P. 43, specifically during the time that his counsel exercised peremptory challenges. Appellant Lewis Howell makes the same contention in his reply brief. Unobjected to at time of trial, this procedure is raised now as plain error under F.R.Crim.P. 52(b), and presents a serious constitutional challenge to the conduct of the trial. See Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 38 L.Ed. 208 (1894) ; Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 36 L.Ed. 1011 (1892) ; Hopt v. People of the Territory of Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884); United States v. Crutcher, 405 F.2d 239, 242-243 (2d Cir. 1968), cert. denied, 394 U.S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1969).

The transcript is void of details concerning the selection of the jury, reciting only parenthetically, “Whereupon the Jury Panel was called into the courtroom and was duly sworn.”

Appellants have submitted affidavits reciting that peremptory strikes were taken in their absence over a noon recess and that, upon reconvening, the jury had already been impaneled. At oral argument, counsel for the government on appeal, who did not serve as trial counsel, conceded that the practice has been followed on some occasions in the United States District Court for the Eastern District of Missouri of permitting defense counsel to exercise peremptory strikes in the absence of prisoner-defendants. However, no proper record of the proceedings has been presented to us.

We might be justified in disregarding a contention on appeal not shown by the record except that counsel for Chrisco on appeal additionally pleads inexperience in the handling of criminal cases. He notes that he as well as the attorney who handled Chrisco’s trial under court appointment actually do not engage in the private practice of law but rather the former is corporate counsel and the latter sales manager for a St. Louis company, and that each possessed little or no experience as trial lawyers. Each appellant has been sentenced to 25 years of imprisonment on account of the convictions.

Under all these circumstances, we believe it appropriate to permit appellants an opportunity to obtain an adequate record on which to present all issues on appeal.

Accordingly, on the court’s own motion, we remand this case to the trial court for preparation of an appropriate record of the proceedings in the impaneling of the jury, including a showing of whether appellants were present in court during the exercise of their peremptory challenge by counsel. Additionally, since the government on oral argument suggests that the doctrine of waiver may bar this claim by appellants, the record should include any circumstances, not presently disclosed in the transcript, bearing on the issue of whether there was a knowing and voluntary waiver of their right to be present at the peremptory challenge stage. See United States v. Crutcher, 405 F.2d 239, 242-243 (2d Cir. 1968), cert, denied, 394 U.S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1969). The supplementary record should be prepared and settled in accordance with the provisions of F.R.A.P. Rule 10(e), (d), or (e), as may be applicable on remand.

Following preparation of the supplementary record, upon request of either party, the trial court should make its findings as to whether defendants were in fact present during the entire impaneling of the jury, including their exercise of peremptory strikes, and should also determine, if necessary, any claim of waiver made by the prosecution.

We request that the supplementary record be prepared promptly and that such record and the record of additional proceedings in the trial court as authorized by this order be promptly returned to this court. We retain jurisdiction except for this limited remand.


text:
    Peter F. LaFRANCE v. George BOHLINGER, Superintendent, Massachusetts Correctional Institution at Norfolk.
    No. 73-1327.
    United States Court of Appeals, First Circuit.
    Argued Oct. 16,1973.
    Decided Oct. 17, 1973.

      Bernard Manning, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., was on motion, for appellant.
    Alexander Whiteside, II, Boston, Mass., by appointment of the court, for appellee.
    Before COFFIN, Chief Judge, and CAMPBELL, Circuit Judge.
   MEMORANDUM and ORDER

Appellee, serving a state felony sentence, was ordered released by the district court, 365 F.Supp. 198, upon his petition for habeas corpus. The district court denied the Commonwealth’s motion to stay the execution of the writ pending appeal. A short while after the writ had issued, the Attorney General of Massachusetts filed in this court a motion for stay pending appeal. We granted a stay of several days, so as to have time to familiarize ourselves with the issues. Soon after, we learned that appel-lee had been released before his attorney or the state correctional authorities had learned of our brief stay order. The latter order has since expired, and a single judge of this court has held a hearing on whether to extend the stay until the appeal is decided.

We find a further stay to be unwarranted. Regarding the timing of the writ, much must be left to the sound discretion of the district judge. Here, the petitioner below had served much, possibly most, of his state sentence. The court may have believed that to stay the writ pending appeal, thus requiring him to serve months more of what it had found to be an unconstitutional sentence, would be too harsh, especially since he can be re-imprisoned if the appeal goes against him.

Without intending criticism of what was done, but solely as a suggested guide for the future, we comment on several aspects of the procedure below:

First, any confusion caused by the overlapping of our temporary stay and the issuance of the writ could have been avoided had the district court itself granted the Commonwealth a stay of several days sufficient to permit it to present to us its request for a stay pending appeal. We do not suggest that district courts should grant even brief “turn-around” stays when appeals are frivolous, or when justice requires that no further delay take place. There may well be cases where, if we knew something of the court’s thinking in denying a stay, we would not feel it necessary to issue our own. However, if a case involves a constitutional issue of some difficulty and if, as here, the petitioner’s conviction had been reviewed and approved at the highest level of the state judiciary, comity usually suggests the advisability of granting the state at least a short respite during which the Attorney General may approach the federal appellate court for a stay.

Second, when ordering issuance of a writ of habeas corpus in these circumstances, we would encourage district courts to consider carefully the advisability of requiring appellee to recognize formally in that court for the purpose of assuring his future availability to the state if the appeal is successful. At the very least, the court should satisfy itself, by making the necessary inquiry, that the released state prisoner will remain available while the appeal is being decided. If the state wins on appeal, it may rightfully expect the federal courts to have taken reasonable precautions to ensure a return to custody of the former prisoner. If no bond is required, it will be helpful to this court, which almost invariably will be faced with a request for stay, if the district court will indicate in writing its reasons for thinking none is needed, so that we will not be in the dark when we are approached. The district court is closer to the facts of the case, and we will be spared an extended hearing on matters of which the trial court is already aware.

A single judge of this court has held a hearing. For reasons already mentioned, we see no need for a further stay. We do, however, condition our denial of a stay upon appellee’s willingness to execute in this court a bond upon personal recognizance. Based upon the circumstances and the representations made at the hearing, we do not require appellee at this time to provide sureties or furnish security.

It is ordered that the motion for stay be, and the same hereby is, denied provided appellee executes a bond agreeing to his being recognized on personal recognizance pending completion of the appellant’s appeal and agrees that he will remain within the District and Commonwealth of Massachusetts and answer all orders of this court. Said bond is to be filed with the clerk of this court by October 19, 1973.


text:
    Jack W. WALKER et al., Plaintiffs-Appellants, v. John J. GILLIGAN, Governor, et al., Defendants-Appellees.
    No. 73-1291.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 11, 1973.
    Decided Nov. 16, 1973.

      William J. Davis, Columbus, Ohio, for plaintiffs-appellants; Joseph Waterman, Columbus, Ohio, on brief.
    Thomas V. Martin, Asst. Atty. Gen., for defendants-appellees; William J. Brown, Atty. Gen., Columbus, Ohio, on brief.
    Before CELEBREZZE, PECK and LIVELY, Circuit Judges.
   PER CURIAM.

Plaintiffs-appellants, husband and wife, brought an action in the District Court on behalf of themselves and all similarly situated married couples in the State of Ohio to test the constitutionality of Ohio Revised Code § 5747.-08(E), which provides that married couples filing a joint federal income tax return must also file a joint Ohio state income tax return. They claim that the Ohio statute creates an unreasonable classification in- contravention of the Fourteenth Amendment and that it also violates their First Amendment rights. The District Court dismissed the application for lack of jurisdiction, relying on the Anti-Tax Injunction Act, 28 U.S. C. § 1341, which provides that:

“The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.”

We conclude that the District Court acted properly. First, it is well-settled that a single judge to whom application is made to convene a three-judge district court may dismiss the action if jurisdiction is lacking. Lion Manufacturing Corp. v. Kennedy, 117 U.S.App.D.C. 367, 330 F.2d 833, 840-841 (1964); Jacob v. Tawes, 250 F.2d 611, 614 (4th Cir. 1957). See also, Crossen v. Breckenridge, 446 F.2d 833, 837 (6th Cir. 1971). Clearly 28 U.S.C. § 2284 is directed to the manner in which a three-judge district court must function once it has been convened and therefore its provisions are invoked only when jurisdiction exists.

Second, we agree with the District Court that there does exist at state law a “plain, adequate and efficient” remedy, thus invoking the prohibition enunciated in § 1341. See, Alger v. Peck, 119 F.Supp. 812 (S.D.Ohio, 1954), aff’d per curiam, 347 U.S. 984, 74 S.Ct. 853, 98 L.Ed. 1148. In addition, federal courts have repeatedly expressed the judicial policy that anticipatory federal adjudication of state tax laws must be avoided where adequate state remedies exist. E. g., Lynch v. Household Finance Corp., 405 U.S. 538, 542 n. 6, 92 S.Ct. 113, 31 L.Ed.2d 424 (1972); Perez v. Ledesma, 401 U.S. 82, 127 n. 17, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971) (Brennan, J., concurring). Any unique considerations which may require an exception to that policy are not apparent here.

Third, even if such unique considerations would otherwise justify interference with the state tax collection, we conclude that the ease should have been dismissed on the authority of Fox v. Norberg, 411 U.S. 911, 93 S.Ct. 1543, 36 L.Ed.2d 303 (1972). In a situation involving a similar statute and similar constitutional claims the Supreme Court therein dismissed the case for lack of a substantial federal question.

The judgment of the District Court is affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Woodrow WILSON, aka Woodrow Wilson, Jr., Defendant-Appellant.
    No. 73-2238
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 15, 1973.
    W. S. Brewbaker, Jr., Montgomery, Ala. (court appointed), for defendant-appellant.
    Ira DeMent, U. S. Atty., D. Broward Segrest, Asst. U. S. Atty., Montgomery, Ala., for plaintiff-appellee.
    Before BELL, GODBOLD and GEE, Circuit Judges.

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

   PER CURIAM:

Appellant, with others, organized a District of Columbia corporation styled “United States Merchant Marine,” provided its officers with nautical titles, and leased space in a Washington office building rejoicing in the title “Headquarters Building.” So equipped, they placed in the mails addressed to various boat owners in Alabama and Texas the following letter, sealed with the “United States Merchant Marine” seal and covering various official-looking forms and registration-fee schedules:

UNITED STATES MERCHANT MARINE
Headquarters Building 2000 P Street, N.W.
Washington, D.C. 20036
Dear Sir:
Effective immediately, the United States Merchant Marine Office of Marine Registry shall accept registration and title applications for privately owned small craft, boats and motors. Please complete the enclosed forms and return to this office within five days.
Very truly yours,
/s/ William E. Blake
William E. Blake
Chief of Operations, USMM

Responses, with fees, resulted.. This prosecution for mail fraud (18 U.S.C. § 1341) and conspiracy to commit mail fraud (18 U.S.C. § 371) followed, resulting in appellant’s conviction and sentence to five years’ imprisonment.

His primary point of error here is that the trial court permitted several recipients of the above missive to testify to the impression which it made upon their minds: a notice of mandatory registration requirements from some agency of the United States. These non-expert opinions on non-technical matters are said to have invaded the province of the jury, thus depriving appellant of due process of law.

The question is not an open one in this circuit: “Testimony concerning the reasons why a witness was misled and what he thought the written instrument meant is proper evidence in a prosecution for mail fraud.” Shale v. United States, 5th Cir., 1968, 388 F.2d 616, 618; Silverman v. United States, 5th Cir., 1954, 213 F.2d 405. These cases, despite the valiant attempt of appellant’s counsel to do so, are indistinguishable from appellant’s, and we adhere to them.

Review of the record below shows appellant’s other contentions to be merit-less.

Affirmed.

      . The equivalent of the corporate president was entitled “Commandant,” of the vice presidents, “Chief of Operations, USMM,” or “Vice-Commandant, USMM, Supplies and Accounts,” etc.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Bennie Cal STONE, Defendant-Appellant.
    No. 73-1501.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 11, 1973.
    Decided Nov. 20, 1973.
    As Amended Jan. 15, 1974.

      R. Martin Galvin, Toledo, Ohio, for defendant-appellant.
    Patrick J. Foley, Asst. U. S. Atty., for plaintiff-appellee; Frederick M. Coleman, U. S. Atty., Toledo, Ohio, on brief.
    Before WEICK, Circuit Judge, O’SULLIVAN, Senior Circuit Judge, and ALLEN, District Judge.

       The Honorable Charles M. Allen, Judge, United States District Court for the West-era District of Kentucky, sitting by designation.

   PER CURIAM.

Appellant appeals from a conviction for transporting a stolen automobile in interstate commei’ee. Appellant urges the Court to reverse the conviction upon the grounds that the trial judge erroneously gave an instruction on aiding and abetting, although the appellant was charged only as a principal in the indictment. Appellant also contends that the evidence was insufficient to convict him.

The evidence shows that Stone was in possession of a stolen automobile in Detroit, Michigan the day after it was stolen. He attempted to sell it to a man named Gillard in Detroit, who refused to buy it. Gillard suggested that he knew a man in Toledo, Ohio who would buy the car, and thereupon the car was driven to Toledo to the lot of one Kimble for the purpose of sale. Subsequently, Kim-ble refused to purchase the car but did some repairs on it, and the car was then taken to Alabama by Gillard, John Malone and one Peyton.

There was testimony presented to the jury from which the jury could believe that appellant drove the car to Toledo and was instrumental in attempting to sell it there, and there was other evidence given by Kimble to the effect that Gillard was the moving figure in the attempted sale and transportation of the car, and that Stone was merely on the lot of Kimble on the occasion and did not play a part in the attempted sale. This evidence was sufficient to authorize the giving of an instruction on aiding and abetting. See United States v. Lester, 363 F.2d 68 (6th Cir. 1966), cert, denied 385 U.S. 1002, 87 S.Ct. 705, 17 L.Ed.2d 542 (1967).

The evidence presented by the government was more than sufficient to authorize the jury’s finding of guilty as to the appellant. Appellant’s basic contentions in this regard go only to the credibility of the witnesses, and while the testimony of the government witnesses was somewhat contradictory, the matter was solely for the determination of the jury. See Hall v. United States, 404 F.2d 1368 (10th Cir. 1969).

The judgment of conviction is affirmed.


text:
    Robert John WOLCOTT, Petitioner-Appellant, v. John J. NORTON, Warden, Federal Correctional Institution, Danbury, Connecticut, Respondent-Appellee.
    No. 1026, Docket 73-1719.
    United States Court of Appeals, Second Circuit.
    Argued June 25, 1973.
    Decided June 26, 1973.
    Certiorari Denied Dec. 17, 1973.
    David Cohen, New Haven, Conn. (Dennis E. Curtis, New Haven, Conn., on the brief), for petitioner-appellant.
    Thomas Maxwell, Jr., Asst. U. S. Atty., New Haven, Conn. (Stewart H. Jones, U. S. Atty., and Andrew B. Bowman, Asst. U. S. Atty., Bridgeport, Conn., on the brief), for respondent-appellee.
    Before LUMBARD, HAYS and TIMBERS, Circuit Judges.
   PER CURIAM:

Petitioner Robert John Wolcott appeals from a judgment entered in the District of Connecticut, Jon 0. Newman, District Judge, dismissing his petition for a writ of habeas corpus and rejecting his claim that under 18 U.S.C. § 3568 (1970) he was entitled to credit against his federal sentence for pretrial incarceration although he had already been given credit for such pretrial incarceration against a state sentence served consecutively. We affirm for the reasons stated in Judge Newman’s opinion. 365 F.Supp. 138 (D.Conn.1973).


text:
    ELECTRONICS CORPORATION OF AMERICA, Plaintiff, Appellant, v. HONEYWELL, INC., Defendant, Appellee.
    No. 73-1260.
    United States Court of Appeals, First Circuit.
    Argued Nov. 6, 1973.
    Decided Dec. 3, 1973.
    Certiorari Denied March 4, 1974.
    See 94 S.Ct. 1491.
    Daniel F. Featherston, Jr., Boston, Mass., with whom Featherston, Homans, Klubock & Griffin, Boston, Mass., was on brief, for plaintiff, appellant.
    James W. Noonan, Boston, Mass., with whom Herrick, Smith, Donald, Farley & Ketchum, Boston, Mass., was on brief, for defendant, appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   PER CURIAM.

After argument and studying the briefs, we have come to the conclusion that we cannot improve on the thoughtful opinion of the district court, 358 F. Supp. 1230 (D.Mass.1973). We therefore affirm on the basis of that opinion. We add only two comments. The first is that appellant makes the pillar of its claim for punitive damages, fees, and costs, despite absence of any proof of actual damages, our statements in the prior case, Electronics Corporation of America v. Honeywell, Inc., 428 F.2d 191, 194 (1st Cir. 1970), that material misrepresentations “will damage” and that in a two-firm market “harm is sufficiently apparent” when such misrepresentations are made. While we cannot fault appellant for seizing on this language, we do not recant. When we spoke of the inevitability of harm we were not addressing the availability of damages but of relief. Because appel-lee’s harmful conduct was discontinued and no actual damage was shown no further relief is indicated. Our second comment is that in relying on the district court opinion, we do not indicate necessary agreement with its conclusion that palming off is not an essential element of a Lanham Act claim. We say this only because such a stance is not necessary for the decision of this appeal.

Affirmed.


text:
    C. J. OLIVER et al., Plaintiffs-Appellees, v. HOME INDEMNITY COMPANY, Intervenor-Appellee. MONSANTO COMPANY, Defendant-Third Party Plaintiff-Appellant, v. A. A. PRUITT, Third Party Defendant-Appellee, v. HYDROCARBON CONSTRUCTION COMPANY et al., Third Party Defendants.
    No. 73-1628.
    United States Court of Appeals, Fifth Circuit.
    Dec. 4, 1973.
    Alvin S. Elisor, Cleveland, Tex., for Oliver.
    David H. Burrow, Houston, Tex., for Oliver and Evans.
    Tom Alexander, Robert C. Floyd, Houston, Tex., for Bruit and Home Indemnity.
    Warner E. Brock, Houston, Tex., for Smith.
    Henry E. Dalehite, Jr., Galveston, Tex., for All-Fab.
    W. Bryant Russell, Houston, Tex., for Topaz.
    Donald R. Hallmark, Houston, Tex., for S.I.P.
    Before TUTTLE, DYER and MORGAN, Circuit Judges.
   PER CURIAM:

The judgment is affirmed on the opinion of the District Court, entitled Amended Memorandum and Order, 56 F.R.D. 370.


text:
    Wayne RAMSAY, Plaintiff-Appellant, v. James BAILEY, M.D., et al., etc., Defendants-Appellees.
    No. 73-2933
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 27, 1973.
    Wayne Ramsay, pro se.
    John L. Hill, Atty. Gen., Melvin E. Corley, Roland H. Allen, Asst. Attys., Gen., Austin, Tex., Ted Butler, Crim. Dist. Atty., Norris W. Yates, Jr., Asst. Crim. Dist. Atty., San Antonio, Tex., for Pugh.
    Thomas H. Sharp, Jr., San Antonio, Tex., for Bailey.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, 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:

It being undisputed that there was no final order or judgment filed in this cause from which an appeal could be taken, the appeal is dismissed for want of jurisdiction.

Dismissed.


text:
    George W. WIEBUSCH and Corinna Jane Wiebusch, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
    No. 73-1416.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 15, 1973.
    Decided Nov. 26, 1973.
    George W. Wiebusch, made argument pro se.
    ' John A. Townsend, Atty., Tax Div., Dept, of Justice, Washington, D. C., for appellee.
    Before VAN OOSTERHOUT and MOORE, Senior Circuit Judges, and WEBSTER, Circuit Judge.

       Honorable Leonard P. Moore, Senior Circuit Judge, Second Circuit, sitting by designation.

   PER CURIAM.

The judgment in favor of the Commissioner is affirmed on the basis of the opinion of the Tax Court (Wiebusch v. Commissioner of Internal Revenue, 59 T.C. 777). The Tax Court has accurately stated the applicable law and has properly applied the law to the undisputed facts. No purpose will be served in attempting to elaborate on the Tax Court’s well-considered opinion,

Affirmed,


text:
    Ronald L. KENNEDY, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent-Appellee.
    No. 73-2351
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 30, 1973.
    Ronald L. Kennedy, pro se.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, La., Abbott J. Reeves, Asst. Dist. Atty., Gretna, LeRoy A. Hartley, Sp. Counsel, New Orleans, La., for respondent-appellee.
    Before GEWIN, COLEMAN 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:

In view of the District Court’s denial of the appellant’s motion for certificate of probable cause, and this Court’s concurrence with the District Court that one should not issue, it is ordered that the above styled and numbered appeal is hereby dismissed for want of a certificate of probable cause, 28 U.S.C., § 2253; Hooks v. 4th District Court of Appeal, Florida, 5 Cir., 1971, 442 F.2d 1042; Hines v. Pitcher, 5 Cir., 1971, 440 F.2d 792; McFrederick v. Florida, 5 Cir., 1958, 261 F.2d 52.

Dismissed.


text:
    In the Matter of P. J. HOLLORAN COMPANY, LAUNDERERS, a corporation, Bankrupt.
    ST. CLAIR LAUNDRY & DRY CLEANING COMPANY, INC., Appellant, v. P. J. HOLLORAN COMPANY, LAUNDERERS, Appellee.
    No. 73-1612.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dee. 11, 1973.
    Decided Dec. 14, 1973.
    Phillip B. Sachs, St. Louis, Mo., for appellant.
    James P. Halloran, St. Louis, Mo., for appellee.
    Before GIBSON and ROSS, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       The Honorable Talbot Smith, Senior District Judge, Eastern District of Michigan, sitting by designation.

   ORDER OF AFFIRMANCE

Upon a careful consideration of the record and of the briefs and arguments of the parties, the Court has concluded that the judgment of the District Court, 362 F.Supp. 370, is based on findings of fact that have not been shown to be clearly erroneous as they pertain to the essential elements of the ease. The issues raised are primarily factual, and the District Court’s finding that the debt asserted by St. Clair Laundry & Dry Cleaning Company, Inc., is not provable for an involuntary petition in bankruptcy has not been shown to be clearly erroneous in fact or based upon any misinterpretation of the law. We believe that an opinion would have no precedential value, and the judgment appealed from is hereby affirmed without opinion. See Rule 14 of the Rules of this Court.


text:
    Emil Al NORMAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-3026.
    United States Court of Appeals, Fifth Circuit.
    Dec. 5, 1973.
    Rehearing Denied Jan. 31, 1974.
    Emil A1 Norman, pro se.
    James E. Bock, Asst. U. S. Atty., San Antonio, Tex., for respondent-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.
   PER CURIAM:

Dismissed. See Local Rule 20.

      . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s local Rule 9 (c) (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure., Kim-brough v. Beto, Director, 5 Cir. 1969, 412 F.2d 981.


text:
    George R. SCHERER and Carolyn D. Scherer, his wife, Plaintiffs-Appellants, v. AMERICAN CYANAMID COMPANY et al., Defendants-Appellees.
    No. 72-3730.
    United States Court of Appeals, Fifth Circuit.
    Dec. 4, 1973.
    John J. Cosner, Jr., Gordon W. Math-eny, Hammond, La., Hugh Miracle, Seattle, Wash., for plaintiffs-appellants.
    H. Martin Hunley, Jr., New Orleans, La., for defendants-appellees.
    Before TUTTLE, DYER and MORGAN, Circuit Judges.
   PER CURIAM:

In this products liability case, involving serious injury to plaintiff from defendant’s drug, the only question is the correctness of the district court’s decision holding the action barred by the applicable statute of limitations, Sections 3536 and 3537 of the Louisiana Civil Code. We find no conflict of evidence touching on this matter which would warrant submission to the jury of the question of concealment by the defendant which would toll the statute. Cf. R. J. Reynolds Tobacco Co. v. Hudson, 314 F.2d 776 (5th Cir. 1963); Breaux v. Aetna Casualty & Surety Co., 272 F. Supp. 668 (E.D.La.1967).

The judgment is affirmed.


text:
    SECURITY SERVICES, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 73-1370.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 4, 1973.
    Decided Dec. 11, 1973.
    Rehearing Denied Feb. 4, 1974.
    Edward R. Reagan, Farmington, Mich., on brief, for petitioner.
    Peter G. Nash, Gen. Counsel, John S. Irving, a Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Michael S. Winer, Richard A. Cohen, Attys., National Labor Relations Board, on brief, for respondent.
    Before PHILLIPS, Chief Judge and PECK and LIVELY, Circuit Judges.
   ORDER

This case is before the court upon the petition of Security Services, Incorporated to review an order of the National Labor Relations Board and upon the cross-petition of the Board to enforce the order. The decision and order of the Board are reported at 201 N.L.R.B. #148.

The court holds that the findings of fact of the Board are supported by substantial evidence on the record considered as a whole.

It is ordered that the order of the Board be, and it hereby is enforced.


text:
    Abdel-Razek A. ABOUEL-NOUR, Plaintiff-Appellee, v. U. S. DEPARTMENT OF LABOR, REGIONAL MANPOWER ADMINISTRATOR, ATLANTA, GEORGIA, Defendant-Appellant.
    No. 73-2916
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 18, 1973.
    Falton O. Mason, Jr., Asst. U. S. Atty., H. M. Ray, U. S. Atty., Oxford, Miss., William Rilberg, Sol. of Labor, U. S. Dept. of Labor, Washington, D. C., Beverley R. Worrell, Reg. Sol., U. S. Dept. of Labor, Atlanta, Ga., John L. Murphy, Chief Gov. Regulations Sect-Cr. Div., James P. Morris, Atty., Washington, D. C., for defendant-appellant.
    Ralph E. Rood, Columbus, Miss., for plaintiff-appellee.
    Before BELL, GODBOLD and GEE, Circuit Judges.

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

   PER CURIAM:

Appellee brought this suit to obtain review, pursuant to the Administrative Procedure Act, 5 U.S.C.A. § 701 et seq., of appellant’s decision denying certification that there were no “qualified, able, willing, and available” workers in the United States to perform a teaching job he then held and wished to take permanently. Under 8 U.S.C.A. § 1182(a) (14) such certification was needed if appellee was to be issued an immigrant visa.

The record shows that after filing the district court complaint, but before that court’s decision, appellee departed the United States; subsequently, his family left to join him. Since that time, appel-lee has failed to respond to numerous letters from his counsel below, and to two letters from the clerk of this court. He also has failed to file a brief on this appeal.

The record strongly suggests that ap-pellee has given up his efforts to obtain an immigrant visa. If so, there would be no case or controversy over which the federal courts could take jurisdiction. We therefore remand to the district court for a factual inquiry into whether this case is moot. Should that court determine that it is, then it must vacate its judgment and dismiss appellee’s complaint.

Remanded with direction.


text:
    HENRY I. SIEGEL CO., INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 73-1342.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 5, 1973.
    Decided Dec. 10, 1973.
    Joseph Martin, Joseph Martin, Jr., Nashville, Tenn., on brief, for petitioner; Martin & Cochran, Nashville, Tenn., of counsel.
    Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel, Alan D. Cirker, Fredric Sagan, Attys. National Labor Relations Board, on brief, for respondent.

      Before WEICK, CELEBREZZE and McCREE, Circuit Judges.
   ORDER

Upon consideration of the briefs and arguments of coúnsel, we are of the opinion that there is substantial evidence in the record to support the order of the Board reported at 202 NLRB No. 125.

It is therefore ordered that the Order of the Board be and it is hereby enforced.


text:
    Harry LEWIS, Plaintiff-Appellant, v. James J. LING et al., Defendants-Appellees.
    No. 168, Docket 73-1564.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 29, 1973.
    Decided Dec. 10, 1973.
    Sidney L. Garwin, New York City (Garwin & Bronzaft, New York City, on the brief), for plaintiff-appellant.
    Robert B. Fiske, Jr., New York City (Arthur F. Golden, Mary E. Wagner, and Davis, Polk & Wardwell, New York City, on the brief), for defendants-ap-pellees Ling, Thayer and Weldon.
    Before MOORE, HAYS and TIMBERS, Circuit Judges.
   PER CURIAM:

On this appeal from a judgment entered after a bench trial in the Southern District of New York, Lloyd F. Mac-Mahon, District Judge, 353 F.Supp. 241, dismissing a stockholder’s derivative action brought on behalf of LTV Corporation alleging that three top officers and directors of LTV committed fraud and breached contracts with LTV because they sold on the public market a portion of their stockholdings in LTV which they had acquired under LTV’s stock option plan, we affirm on the ground that the district court’s findings that defendants bought their option stock for investment and with an intention to hold it as an investment are supported by substantial evidence.

Affirmed.


text:
    Ioannis ZORGIAS and Dimitrios Velentzas, Plaintiffs-Appellants, v. The SS HELLENIC STAR and HELLENIC LINES, LTD., Defendants-Appellees.
    No. 73-1409.
    United States Court of Appeals, Fifth Circuit.
    Dec. 18, 1973.
    Frank S. Bruno, James D. Estopinal, New Orleans, La., for plaintiff s-appellants.
    James H. Roussel, Winston E. Rice, New Orleans, La., for Hellenic Lines, Ltd.
    Before JOHN R. BROWN, Chief Judge, and GEWIN and GOLDBERG, Circuit Judges.
   PER CURIAM:

The. District Court was correct in ruling that the settlement decree of the Greek court was a binding judgment to which res ad judicata consequences should be afforded. In view of this we do not pass upon the correctness of the District Judge’s ruling and decision on the issue of laches.

Affirmed.