author: JAMES M. CARTER, Circuit Judge:

text:
    In re Coordinated Pretrial Proceedings In WESTERN LIQUID ASPHALT CASES. STATE OF ALASKA et al., Plaintiffs-Appellants, v. STANDARD OIL COMPANY OF CALIFORNIA et al., Defendants-Appellees.
    No. 73-1086.
    United States Court of Appeals, Ninth Circuit.
    Oct. 3, 1973.
    As Amended Nov. 30, 1973.
    Certiorari Denied Feb. 19, 1974.
    See 94 S.Ct. 1419.

      See, also, Jud.Pan.Mult.Lit., 309 P. Supp. 157.
    Michael I. Spiegel, Deputy Atty. Gen. (argued), San Francisco, Cal., Edward A. Nugent, Sp. Asst. Atty. Gen., (argued), Salem, Ore., John Havelock; Atty. Gen., Donald Beighle, Asst. Atty. Gen., Juneau, Alaska, Gary K. Nelson, Atty. Gen., Barry Leverant, Alan K. Polley, Asst. City Attys., Phoenix, Ariz., Herbert E. Williams, Donald C. Deagle, Asst. City Attys., Tucson, Ariz., J. La-Mar Shelley, City Atty., Mesa, Ariz., Leonard C. Langford, County Atty., Kingman, Ariz., Milton H. Mares, Deputy City Atty., San Francisco, Cal., Ronald L. Johnson, Chief Deputy City Atty., Robert J. Logan, Deputy City Atty., San Diego, Cal., Frank Wagner, Deputy City Atty., Los Angeles, Cal., Michael R. Downey, Deputy City Atty., M. Van Smith, Santa Clara,. Cal., Frederic P. Furth, John H. Boone, Geoffrey P. Knudsen, Peter C. Haley, Offices of F. P. Furth, San Francisco, Cal., Guido Saveri, Steven Swig, Offices of Joseph L. Alioto, San Francisco, Cal., William H. Ferguson, C. David Shepard, Ferguson & Bur-dell, Seattle, Wash., John Aslin, Larry Nord, Seattle, Wash., James Caplinger, Caplinger & Munn, Seattle, Wash., Ray Siderius, Siderius, Lonergan & Crowley, Seattle, Wash., James Gillespie, Spokane, Wash., Patrick J. Donnelly, Seattle, Wash., James R. Holman, Holman, Lewis & MaeArthur, Tempe, Ariz., Robert L. Bluemle, Phoenix, Ariz., Henry A. Carey, Jr., Carey & Hanlon, Portland, Ore., for plaintiffs-appellants.
    Richard J. MacLaury (argued), Francis R. Kirkham, James B. Atkin, Pillsbury, Madison & Sutro, San Francisco, Cal., Morris M. Doyle, . Graham B. Moody, Jr., Frederic A. Sawyer, Douglas B. Schwab, McCutchen, Doyle, Brown & Enersen, San Francisco, Cal., Moses Lasky, Richard S. Haas, George A. Cumming, Jr., Brobeck, Phleger & Harrison, San Francisco, Cal., Robert D. Raven, F. Bruce Dodge, Morrison, Foerster, Holloway, Clinton & Clark, San Francisco, Cal., Gordon Johnson, Frank D. Mac-Dowell, Thelan, Marrin, Johnson & Bridges, San Francisco, Cal., M. Laurence Popofsky, Heller, Ehrman, White & McAuliffe, San Francisco, Cal., Donald C. Smaltz, Ralph B. Perry,- III, Gross-man, Smaltz, Graven & Perry, Los An-geles, Cal., Max L. Gillam, Philip F. Belleville, Robert E. Currie, Latham & Watkins, Los Angeles, Cal., Richard W. Curtis, Gulf Oil Corp., Los Angeles, Cal., Jack Corinblit, Cor inblit & Shapero, Los Angeles, Cal., Paul G. Bower, Gigson, Dunn & Crutcher, Los Angeles, Cal., William Simon, John Kingdon, Howrey, Simon, Baker & Murchison, Washington, D. C., Patrick J. Donnelly, Lindell & Carr, Seattle, Wash., Bruce R. Merrill, Houston, Tex., Morris Harrell, Rain, Harrell, Emery, Young & Doke, Dallas, Tex., Verne H. Maxwell, Thompson, Knight, Simmons & Bullion, Dallas, Tex., for defendants-appellees.
    William J. Scott, Atty. Gen., John P. Meyer, Sp. Asst. Atty. Gen., Springfield, Ill., Theodore L. Sendak, Atty. Gen., Indianapolis, Ind„ Vern Miller, Atty. Gen., Jack B. Steineger, Sp. Asst. Atty. Gen., Topeka, Kan., Frank J. Kelley, Atty. Gen., Christopher Nern, Asst. Atty. Gen., Lansing, Mich., Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., John M. Desiderio, Asst. Atty. Gen., Chief, Antimonopolies Bureau, Albany, N. Y., Israel Packel, Atty. Gen., Gerry J. Elman, Deputy Atty. Gen., Harrisburg, Pa., Robert W. Warren, Atty. Gen., Bruce Craig, Asst. Atty. Gen., Madison, Wis., Chauncey H. Browning, Jr., Atty. Gen., Gene Hal Williams, Deputy Atty. Gen., Charleston, W. Va., George T. H. Pai, Atty. Gen., Honolulu, Hawaii, Robert List, Atty. Gen., Carson City, Nev., W. Anthony Park, Atty. Gen., Boise, Idaho, Lee A. Freeman, Jr., Sp. Asst. Atty. Gen., Chicago, Ill., Josef D. Cooper, Francis Scarpulla, San Francisco, Cal., Sp. Counsel for Hawaii, Idaho, and Nevada, for amicus curiae.
    Before CARTER and GOODWIN, Circuit Judges, and FERGUSON, District Judge.

       Hon. Warren J. Ferguson, United States District Judge, Central District of California, sitting by designation.

   OPINION

JAMES M. CARTER, Circuit Judge:

This interlocutory appeal was allowed under 28 U.S.C. § 1292(b), from an order of the district court granting partial summary judgment to defendants-appel-lees. In re Coordinated Pretrial Proceedings in Western Liquid Asphalt Cases (N.D.Cal.1972), 350 F.Supp. 1369.

Appellants brought these actions for damages and injunctive relief under Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2, and Sections 4- and 16 of the Clayton Act, 15 U.S.C. §§ 15 and 26. Appellants allege that appellees, suppliers of asphalt, illegally raised and stabilized the price of liquid asphalt, which is used in the construction of public roads, through a conspiracy to fix prices, to submit rigged and collusive bids, to allocate and stabilize the relevant market, and otherwise to eliminate competition. For purposes of summary judgment, these allegations must be assumed to be true.

The district court held in substance that appellants, who indirectly purchased an assumedly price-fixed product through contractors, and who are assumed to be able to show that at least part of the illegal overcharge was passed on to them, are precluded as a matter of law from recovering such damages as they ultimately might be able to prove. The court relied for its decision upon Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968). We reverse.

Facts

The facts are not seriously in dispute. Some of appellants’ purchases of liquid asphalt were made directly from appel-lees. In those instances, the liquid asphalt alone was obtained for application by appellants in road maintenance work. Such direct purchases are not involved in this appeal.

In other instances, the asphalt was only a part of the product supplied to appellants by its contractors after combination with other ingredients, in a road construction project. These purchases were made in one of two ways. Some were made through pre-existing cost-plus contracts, in which appellants agreed to pay the cost of materials as charged to the contractors by suppliers, plus a charge for the contractors’ services. In others, however, the contractors obtained bids from suppliers, then computed their own, overall bid. The appellants then awarded particular projects to the lowest bidder among responsible contractors. The claims under direct and cost-plus purchases survived the motion granted below, and only the remaining indirect purchases are involved in this appeal.

Affidavits submitted by appellants reflect that the usual bidding process, not disputed in substance by appellees, involves certain common steps. The contractor totals suppliers’ sub-bids, adds an amount for his services, including labor and other overhead, and an amount for profit. The total is then re-divided and apportioned to each supply item, but the dollar amount so allocated to each item varies depending on factors such as cost, and method of payment. The overall bid, including allocations to each supply item, is then submitted in competition for the particular project. A contractor is not interested in the level of the price charged by suppliers, so long as he receives at least as low a rate as his competitors.

Occasionally a contractor will use a paving subcontractor, in which case the subcontractor prepares his sub-bid in the same general manner as do contrae-tors. In any case, sub-bids from suppliers and subcontractors are regarded as firm.

Appellees also monitor schedules of future road projects, and from time to time offer quotations to contractors, by which they offer to supply materials such as asphalt at a specific price for a particular project only. Also, appellees manufacture asphalt to comply with specifications published by the governmental bodies, and so certify to the contractors.

In addition, documents obtained from appellees during discovery tend to indicate that they control a high percentage of their direct customers of asphalt, either through acquisition of stock, or indirectly through various financial arrangements, including credit.

Appellants contend that the cost of asphalt to the contractor, including allegedly illegal overcharges, is always passed on to them as the ultimate purchasers. Appellees take the position that • it is only the initial purchaser — the contractor — who is damaged. Any increase paid by the ultimate purchasers, they say, is too remote from the alleged overcharges to be susceptible of proof.

I.

Standing and Liability

The district court said, 350 F.Supp. at 1370-1371, that it would rule for appellants, were its decision not controlled by Hanover Shoe, supra, 392 U.S. 481, 88 S.Ct. 2224. That case held that a supplier being sued by an immediate purchaser for alleged overcharges (in violation of antitrust laws) cannot raise a defense that the immediate purchaser may have recovered all or part of the overcharges by passing them on to his customers.

In Hanover Shoe, however, the product involved, shoe machinery, was not itself resold by plaintiffs. The Supreme Court’s decision was based in part upon the difficulty of showing whether plaintiff shoe manufacturer’s pricing decisions for shoes reflected the illegal overcharge.

“Even if it could be shown that the buyer raised his price in response to, and in the amount of, the overcharge and that his margin of profit and total sales had not thereafter declined, there would remain the nearly insuperable difficulty of demonstrating that the particular plaintiff could not or would not have raised his prices absent the overcharge or maintained the higher price had the overcharge been discontinued. Since establishing the applicability of the passing-on defense would require a convincing showing of each of these virtually un-ascertainable figures, the task would normally prove insurmountable. [Footnote omitted.] On the other hand, it is not unlikely that if the existence of the defense is generally confirmed, . antitrust defendants will frequently seek to establish its applicability [thus requiring long and complicated proceedings].” 392 U.S. at 493, 88 S.Ct. at 2231.

Clearly the Court’s.purpose was to preserve the private antitrust suit and promote compensation to those injured. This purpose could not be achieved with the hindrance of a defense, the proof of which it felt would normally present “insuperable difficulty,” but the mere allegation of which would often lengthen antitrust litigation beyond reasonable bounds.

On the other hand, the Court recognized

“ . . . that there might be situations — for instance, when an overcharged buyer has a pre-existing ‘cost-plus’ contract, thus making it easy to prove that he has not been damaged — where the considerations requiring that the passing-on defense not be permitted in this case would not be present.” Id. at 494, 88 S.Ct. at 2232.

The Court thus left open for future decision cases in which the passing on of the illegal overcharge might be more readily demonstrable. Ours is such a ease. Based on affidavits, the district court assumed that appellants could so show.

The district court held “that an immediate purchaser may recover and that a remote purchaser may not even though the former suffers no money loss and the latter does . . 350 F.Supp. at 1372. The court relied heavily for that conclusion upon Southern Pacific Co. v. Darnell-Taenzer Lumber Co., 245 U.S. 531, 38 S.Ct. 186, 62 L.Ed. 451 (1918), a case under the Interstate Commerce Act. The Supreme Court discussed Darnell-Taenzer in its Hanover Shoe opinion, 392 U.S. at 488 n. 6, 490 & n. 8, 88 S.Ct. 2224, noting that it was a case in which “the possibility that plaintiffs had recouped the overcharges from their customers was held irrelevant in assessing damages.” 392 U.S. at'490, 88 S.Ct. at 2230. At that point in its opinion, however, the Court was simply describing “where the matter stood in this Court when the issue came to be pressed with some regularity in the lower federal courts . . . .” Id. at 491 n. 8, 88 S.Ct. at 2230. It appears obvious to us that the Supreme Court was not enshrining privity as a requirement of the antitrust laws. See Missouri v. Stupp Bros. Bridge & Iron Co. (W.D. Mo.1965), 248 F.Supp. 169, 171-175; Boshes v. General Motors Corp., 59 F.R. D. 589 (N.D.Ill.1973).

The Darnell-Taenzer case was decided at a time when privity was a requirement of tort law. Today, it stands at best for the concept that an offense is complete at the time of injury, regardless of the victim’s later acts in mitigation. Note, 46 S.Cal.L.Rev. 98, 102-04, 109-10 (1972). Privity is not required in antitrust cases. In re Multidistrict Vehicle Air Pollution M.D.L. No. 31 (9 Cir., 1973), 481 F.2d 122 at 129; South Carolina Council of Milk Producers, Inc. v. Newton (4 Cir. 1966), 360 F.2d 414, 417-418, cert, den., 385 U.S. 934, 87 S. Ct. 295, 17 L.Ed.2d 215 (1966); see Perkins v. Standard Oil Co. of Calif.. 395 U.S. 642, 648-650, 89 S.Ct. 1871, 23 L.Ed.2d 599 (1969); Comment, 72 Colum.L.Rev. 394, 396-403; Note, 46 S. Cal.L.Rev. 98, 110 & n. 47 (1972). Recovery was allowed in a pre-Hanover Shoe case markedly smilar to ours. Armco Steel Corp. v. North Dakota (8 Cir.1967), 376 F.2d 206, 210-211. Therefore, while Darnell-Taenzer may solidify an immediate purchaser’s right to damages, it does not preclude recovery by ultimate purchasers. In fact, nowhere in Hanover Shoe does the Supreme Court mention standing, which is our problem herein.

Our case, then, involves “passing on,” not as a defense, but as a theory of recovery in the nature of an offense. Here we are directly confronted with the policy favoring the allowance of recovery to appellants who can prove both the occurrence of an antitrust violation and that they each thereby incurred substantial damage. Speaking of the ultimate consumers in Hanover Shoe, who were retail purchasers of shoes, the Supreme Court noted that they would each have

“ . . . only a tiny stake in a lawsuit and little interest in attempting a class action. In consequence, those who violate the antitrust laws by price fixing or monopolizing would retain the fruits of their illegality because no one was available who would bring suit against them. Treble-damage actions, the importance of which the Court has many times emphasized, 'would be substantially reduced in effectiveness.” Id., 392 U.S. at 494, 88 S.Ct. at 2232.

In our case, this policy favors permitting appellants to demonstrate injury by reason of any passed-on overcharge. The district court squarely held that standing under § 4 of the Clayton Act is limited exclusively to first-line purchasers unless there is a pre-existing cost-plus contract, even assuming that second-line purchasers would be able to show in some instance that they were the ones who bore the burden of the illegal overcharge. We think that result reads Hanover Shoe too literally.

We do not have a case of consumers who have only a minuscule interest in the outcome of the litigation. Instead, appellants are a large number of public consumers of liquid asphalt, who allege that illegal overcharges by appellees resulted in unlawfully high prices to them, for about three million tons of asphalt purchased in some 37,000 contracts. To permit so large a fish to escape the nets is unthinkable.

Moreover, most of the contractors who purchased from appellees and resold to appellants have not' come forward to challenge these alleged violations. Counsel at oral argument pointed out that only one contractor in California, and three in Oregon, have sued appellants — a very small percentage of those involved. No contractors have sued in the states of Arizona, Alaska, and Washington. It is most likely that the four-year statute of limitations, 15 U.S.C. § 15b, has run on those who have not sued. It is understandable that contractors might not sue, in view of (1) their alleged dependence upon appellees for their supply of asphalt, (2) the possibility that they earned a percentage profit on the overcharges, and (3) the control and interdependence alleged between appellees and the contractors. Thus if the present appellants could establish antitrust violations but were precluded from recovering, no one else would sue, and appellees would retain their assumedly illegal profits.

Appellees object that if appellants are permitted to recover, there is a danger of double recovery, since contractors would also have a cause of action. First, this is fallacious because it assumes that contractors will sue, when in fact they have not in the vast majority of these cases. Second, there is no reason why appropriate means cannot be found to properly apportion such damages as ultimately may be assessed, a matter which we shall mention again later. Third, Hanover Shoe was concerned with a defense to liability, not with standing, and not with apportionment of damages. We do not believe that the Supreme Court intended a per se rule with respect to passing on, as can be seen from the language quoted above. The Court was applying policy to a specific ease. We do not think we should sacrifice enforcement of the antitrust laws in this case in favor of considerations of judicial economy when, we must assume, proof of passing on is at hand, and in triable form.

We have recently held that standing in antitrust cases involves a two-step analysis: “identification of the affected area of the economy and then the ascertainment of whether the claimed injury occurred within that area.” In re Mul-ti-district Vehicle Air Pollution M.D.L. No. 31 (9 Cir., 1973), 481 F.2d 122, at 129. (Petition for cert, filed sub nom. Morgan v. Auto Manufacturers Ass’n, No. 73-394, 41 U.S.L.W. 2685.)

We think that appellants here are clearly within the area of the economy which appellees reasonably could have or did foresee would be endangered by the breakdown of competitive conditions. Twentieth Century Fox Film Corp. v. Goldwyn (9 Cir. 1964), 328 F.2d 190, 220, cert, den., 379 U.S. 880, 85 S. Ct. 143, 13 L.Ed.2d 87; Conference of Studio Unions v. Loew’s, Inc. (9 Cir. 1951), 193 F.2d 51, 54-55, cert, den., 342 U.S. 919, 72 S.Ct. 367, 96 L.Ed. 687 (1952). We have previously refused to defeat a cause of action for antitrust violations, merely because the violator chose to deal through intermediaries.. Karseal Corp. v. Richfield Oil Corp. (9 Cir. 1955), 221 F.2d 358, 364-365; see Note, 46 S.Cal.L.Rev. 98, 110 & n. 47 (1972). The broad social object of the antitrust statutes is to end anticompetitive acts in the most comprehensive way. Karseal, supra, at 365. Where the operation and effect of anticompetitive prac'tices was upon the market in which appellants dealt — the “target area” — we found liability. Id. at 364.

Here, appellees dealt through intermediaries, the contractors, who, it is claimed, were in various ways controlled by appellees. That is sufficient to bring this case within our holding in Karseal, supra. See Multidistrict Vehicle Air Pollution, supra, pp. 125 to 130. Even if the contractors were wholly independent of appellees, however, the Supreme Court has indicated that it may impose liability in those circumstances. Perkins v. Standard Oil Co. of Calif., 395 U.S. 642, 647-648, 89 S.Ct. 1871, 23 L. Ed.2d 599 (1969). The question of standing is a question of law for the court. The presence of intermediaries does not bar recovery.

On the other hand, the problems of damages and causation are questions of fact for the jury. Mulvey v. Samuel Goldwyn Productions (9 Cir. 1970), 433 F.2d 1073, 1075 n. 3. Evidence that a price advantage was “passed on, at least in part” to plaintiff’s competitor, inter alia, provides sufficient substance for the question of causation to be submitted to the jury. Perkins, 395 U.S. at 648-649, 89 S.Ct. at 1875.

The Court has held that a retailer who buys through a wholesaler could be considered a “customer” of the original supplier under the Clayton Act. FTC v. Fred Meyer, Inc., 390 U.S. 341, 88 S.Ct. 904, 19 L.Ed.2d 1222 (1968) (§ 2(d) of the Act); Perkins, supra, 395 U.S. at 647, 88 S.Ct. 1871 (§ 2(a) of the Act). Any other result “would allow price discriminators to avoid the sanctions of the Act by the simple expedient of adding an additional link to the distribution chain.” Perkins, supra, at 647, 89 S.Ct. at 1874. This policy not to defeat recovery merely because a defendant has sold through intermediaries is also reflected, we believe, in Hanover Shoe, supra, where without the ultimate consumer at bar, the intermediary was allowed to recover. See West Virginia v. Chas. Pfizer & Co. (2 Cir. 1971), 440 F.2d 1079, 1087-1088, cert. den. sub nom., Cotier Drugs, Inc. v. Chas. Pfizer & Co., 404 U.S. 871, 92 S.Ct. 81, 30 L.Ed.2d 115.

The antitrust laws are to be construed so as to achieve the broad goals which Congress intended to effectuate. Fred, Meyer, Inc., supra,. 390 U.S. at 349, 88 S.Ct. 904. One such policy goal is that there be no hiatus in the enforcement of these laws. See Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 136, 138, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968). Each individual who is injured may sue. Hawaii v. Standard Oil Co. of Calif., 405 U.S. 251, 263, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972). Thus, while we should not impose multiple liability upon defendants, nor give recovery to uninjured plaintiffs, neither should we bar recovery to those who can demonstrate that they bore the burden of the violation. We therefore hold that in the circumstances of this case, the granting of summary judgment to appellees on the damage claims was improper. Of course, facts await proof at trial.

Our holding is limited. We reverse the ruling below that the plaintiffs-appellants may not use “passing on” as a theory of recovery.

We do not risk the danger of multiple recovery. We discuss the problem in-Section II, infra.

We note here that three limitations on antitrust actions will continue to operate so as to prevent or alleviate the problems raised by appellees: (1) standing, (2) proper allocation of damages, and (3) the usual rules of law relating to proof of causation and damages.

Standing, which we discussed supra, is still in the course of development in the law. See Conference of Studio Unions v. Loew’s, Inc., supra; Karseal Corp. v. Richfield Oil Corp., supra; Twentieth Century Fox Film Corp. v. Goldwyn, supra; In re Multidistrict Vehicle Air Pollution M.D.L. No. 31, supra.

II.

Damages

Because on remand the district court may reach the question of damages, we elucidate somewhat further. Although appellants may have difficulty proving damages, our decision shows that we believe they should have an opportunity to do so. There is no reason to hold as a matter of law that they paid no part of the overcharge, and thus cannot recover —especially since that payment was assumed below.

To effectuate the policy of private antitrust enforcement, the cause should proceed on the liability issues, where injury is clearly not remote under the proximate causation analysis of the Mul-tidistrict Vehicle Air Pollution case, and Karseal, supra. Problems of the apportionment of damages, as between an intermediary and an ultimate consumer, may be treated after liability is established, unless it be clear that no ultimate consumer was damaged. If an intermediary is shown to have been damaged by payment of an illegal overcharge which was not passed on to ultimate consumers, appellees’ liability to ultimate consumers, to that extent, may be decreased.

Direct proof of payment is not required, of course, because to require it could prevent enforcement of the antitrust laws. Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264-265, 66 S. Ct. 574, 90 L.Ed. 652 (1946). If an illegal overcharge is proved, then the court can inquire whether the intermediaries paid it. If not, then obviously appellants paid it, and should recover.

However, the amount of the overcharge is not necessarily the total amount of harm to plaintiffs. Purchasers may also have been damaged by being forced to turn to substitute goods, or to discontinue purchasing the price-fixed product. The essence of conspiracy is that the conspirators believe they will recover more from the illegal overcharge than they will lose from diminished sales. Hanover Shoe, supra, 392 U.S. at 492-494, 88 S.Ct. 2224, indicates that the measure of damages includes lost profits. Thus, in passing-on cases, the intermediary should recover the amount of the overcharge that was not passed on, if the proof shows that the ultimate consumers did not pay it all, and any lost profits resulting from increased costs. The ultimate purchasers should obtain the remainder of the overcharge, and any other damages proximately caused. Facts raising reasonable inferences, based upon appropriate market data, should suffice to go to the jury on these questions. See Bigelow, supra, 327 U.S. at 264, 66 S.Ct. 574.

The trebling of damage awards should present no difficulty to the apportionment of damages. It is similar to punitive damages paid by a tortfeasor whose act injures several people. Single damages are assessed in the antitrust case, apportioned among plaintiffs if necessary, and then trebled. Damages must be trebled in this manner to effectuate the legislative judgment of Congress that each person injured should recover three times the damages he has suffered.

It is urged that our decision for appellants would result in requiring appel-lees to twice pay treble damages. As we have said, the amount of the overcharge is not subject to double payment, because appellees’ liability in that regard is to be apportioned after the amount of the overcharge is fixed. Further, each plaintiff (including appellants), be he intermediary or ultimate consumer, will be awarded only such further damages, including lost profits, as he may reasonably prove allocable to him.

“Any person who shall be injured . . . by reason of anything forbidden in the antitrust laws may sue therefor and shall recover threefold the damages by Mm sustained . . . .” [Emphasis added,] See generally In re -Multidistrict Vehicle Air Pollution M.D.L. No. 31, supra, 481 F.2d at 122; Comment, 76 Colum.L.Rev. 394, 397 (1972).

We therefore see no problem of' double recovery, and we believe that if this difficulty should arise in some other connection, the district court will be able to fashion relief accordingly. In addition to the court’s control over its-decree, numerous devices exist. We note that the consolidation of cases, which has already occurred, is one means of averting duplicitous awards. The short, four-year statute of limitations is another; later suits, after final judgment herein, are unlikely. 15 U.S.C. § 15b. In other cases, it may be that statutory inter-pleader, 28 U.S.C. § 1335, could be used by antitrust defendants to avoid double liability. If necessary, special masters may be appointed to handle complex cases. Finally, there are the doctrines of res judicata and collateral estoppel and procedures for compulsory joinder. The day is long past when courts, particularly federal courts, will deny relief to a deserving plaintiff merely because of procedural difficulties or problems of apportioning damages. See Boshes, supra, at 59 F.R.D. 599.

Reversed and remanded for further proceedings in accordance with this opinion.

      . Numerous states, cities, counties, and special districts, and a few contractors, brought suit. The actions were consolidated in the Northern District of California by the Multi-district Litigation Panel, pursuant to 28 U. S.C. § 1407. In re Western Liquid Asphalt (Jud.Pan.Mult.Lit.1970), 309 F.Supp. 157 (1969), 303 F.Supp. 1053.
      Appellants herein are the states of Alaska, Arizona, California, Oregon, and Washington, who purchased both directly and indirectly (through contractors) from appellees, and who appealed under 28 U.S.C. § 1292. Other plaintiffs, who purchased only indirectly, appealed under § 1291. The order appealed from lacked the requisite certificate under Fed.R.Civ.P. 54(b). For that reason, a motions panel of this court dismissed the appeals of these latter plaintiffs, without prejudice to refiling if the required certificate were obtained from the district court. None have refiled.

      . The district court’s opinion below discussed only 15 U.S.C. §§ 1, and 15, which together relate solely to damages, and the motion for partial summary judgment relates to damages. 350 F.Supp. at 1370. However, the court’s holding, see note 3 infra, denies appellants “all relief based upon indirect purchases,” inter alia. 350 F.Supp. at 1373 (emphasis added). We construe this to meau damages only, not injunctive relief, and our opinion is concerned only with the damages issues. However, it is appropriate to note that the requirements for standing regarding injunctive relief under 15 U.S.C. § 26 are different and less stringent in some respects than those for damages under § 15. In re Multidistrict Vehicle Air Pollution M.D.L. No. 31 (9 Cir., 1973), 481 F.2d 122 at 130.

      . The district court’s precise ruling reads: “The defendants’ motion for summary judgment is granted and plaintiffs are denied all relief based upon indirect purchases of liquid asphalt, except in those cases where the indirect purchases of liquid asphalt were made upon pre-existing cost-plus contracts, that is, contracts wherein the plaintiffs agreed to pay the contractors’ costs, whatever they may be, plus a fixed percentage.
      “In my opinion this order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from this order may materially advance the termination of this litigation. Proceedings shall not be stayed unless by order of the court of appeals.” 350 F.Supp. at 1373.

      . In further explanation of this somewhat esoteric process, we quote from one of the affidavits on the subject submitted by appellants, that of William Corn, Manager of Estimating, Highway and Marine Division, of a construction contractor, and a registered engineer.
      “1. Each public road construction contract is composed of a number of separate items of work. Each item of work typically is composed of certain material and labor costs. Certain items may also involve equipment costs.
      “2. The company uses a work sheet to compute the lowest cost to complete each item of work set forth in the contract. The company, in making its computation, ascertains in regard to each item, the actual cost, to the extent applicable, of the material, labor and equipment involved. The cost of those items of work to be covered by a subcontract, such as paving, is ascertained by obtaining bids from one or more subcontractors. ((

      “5. The total bid price is arrived at by adding the costs computed for each item of work and by adding' thereto additional amounts for overhead, contingencies and profit. These amounts vary from job to job.
      “6. Each contract bid form contains a number of contract ‘pay items’. Typical contract ‘pay items’ are ‘_ tons, liquid asphalt, MC250’, and ‘_tons, aggregate’. Once the total bid price is computed, it is divided and spread among the various contract pay items. The dollar amount allocated to each contract pay item is based on many considerations, including cost and the schedule or manner of payment. As a result, the dollar amount stated for each contract pay item, including asphalt, may vary from its actual cost. ...”

      . The district court felt that the complexities of proof of damages, mentioned in Hanover Shoe, supra, were present in this case. 350 F.Supp. at 1372 & n. 1. The court said that if appellants were to make out a prima facie case of damages, then it could not prevent appellees from showing that in particular instances no overcharge was passed on. “This means, of course, an examination of each contract. Whatever else, the effect of Hanover and Darnell-Taenzer is to reject the generalism that because the first in the purchasing chain suffers an overcharge someone late in the chain suffers compensable damage.” Id. at 1372 n. 2.
      It may be that the Supreme Court has ruled out generalized damages claims. But it has inferentially approved specific ones, and we cannot square this with the district court’s own statement that “plaintiffs [appellants] can in some instances prove that the increased cost . . . was in fact borne by the plaintiffs.” Id. at 1370. As we have said, the court has at its disposal several means of inquiring into each contract, if necessary, without the need to completely foreclose recovery on grounds of difficulty of trial. It has never been thought that an antitrust violation is irremediable because done on a grand scale. The Supreme Court spoke of “virtually unascertainable figures” associated with proof that a particular intermediary “could not or would not have raised his prices absent the overcharge or maintained the higher price had the overcharge been discontinued.” Hanover Shoe, supra, 392 U.S. at 493, 88 S.Ct. at 2231. This was in relation to the liability issue, which in our case is obviated by the district court’s assumption that appellants could prove an illegal overcharge which was passed on to them. We have elsewhere mentioned the relaxed proof requirements on the damages issue in antitrust cases. The district court denied appellants standing on grounds of remoteness and judicial convenience, a third and distinct issue with which our opinion deals.

      . See note 3 supra. The issue herein has been raised in other cases. In Minnesota v. U. S. Steel Corp. (8 Cir. 1971), 438 F.2d 1380, 1384, the issue was not decided because it was not ripe, and necessary facts were lacking. In West Virginia v. Chas. Pfizer & Co., supra, 440 F.2d at 1086-1088, the Second Circuit reached a result similar to ours, in determining the proper apportionment of a $100 million settlement offér. The court did not reach the issue herein as a matter of standing, but its discussion is apt.
      In Mangano v. American Radiator & Std. San. Corp. (E.D.Pa.1970), 50 F.R.D. 13, aff’d, 438 F.2d 1187, 1188 (3 Cir. 1971) (per curiam), dismissal was affirmed against ultimate purchasers, for failure to prove that the alleged overcharge was “a causa sine qua non of any payment” they made. However, plaintiffs there had failed to comply with the district court’s discovery ■ order, and the case stands for the procedural point that failure to answer interrogatories may result in adverse determination of the issues which were the subject of that discovery.
      In the same litigation, the claims of public bodies, who bought plumbing fixtures allegedly subject to illegal overcharges, were dismissed because the fixtures had been incorporated into buildings and reached plaintiffs only through several levels of intermediaries. Philadelphia Housing Authority v. American Radiator & Std. San. Corp. (E.D.Pa.1970), 323 F.Supp. 364 and 381. The court there found that the product had passed through several successive unrestrained markets, with independent pricing decisions at each different level. Id. at 385. Such facts indicate in their statement that that case was far different from ours.
      A result similar to ours was reached in Boshes v. General Motors Corp., 59 F.R.D. 589 (N.D.Ill.1973) ; see also Comment, 72 Colum.L.Rev. 394 (1972) ; and was likewise reached in the case of In re Master Key Antitrust Litigation (D.Conn., August 23, 1973, M.D.L.Doeket No. 45).

      . The California contractor’s case is now pending on appeal in this Court. Copp Paving Co., Inc. v. Gulf Oil Co. (9 Cir.), 487 F.2d 202 argued the same day as our case.

      . The Supreme Court has often cautioned against the use of summary judgment in complex antitrust litigation. E. g., Norfolk Monument Co., Inc. v. Woodlawn Memorial Gardens, Inc., 394 U.S. 700, 89 S.Ct. 1391, 22 L.Ed.2d 658 (1968) (per curiam) ; United States v. Diebold, Inc., 369 U.S. 654, 82 S. Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam) ; Poller v. CBS, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) ; see White Motor Go. v. United States, 372 U.S. 253, 263, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963).

      . 15 U.S.C. § 15 reads :


source: Caselaw Access Project

author: ALFRED T. GOODWIN, Circuit Judge:

license: Public Domain

text:
    In re Coordinated Pre-Trial Proceedings In WESTERN LIQUID ASPHALT CASES. COPP PAVING COMPANY, INC., et al., Appellants, v. GULF OIL COMPANY et al., Appellees.
    No. 72-2152.
    United States Court oí Appeals, Ninth Circuit.
    Oct. 3, 1973.
    Certiorari Granted March 25, 1974.
    See 94 S.Ct. 1586.
    See, also, 9 Cir., 487 F.2d 191.

      Jack Corinblit (argued), Martin M. Shapero, Corinblit & Shapero, Los Angeles, Cal., Evelle J. Younger, Atty. Gen., Michael I. Spiegel, Deputy Atty. Gen., San Francisco, Cal., for appellants.
    George A. Cumming, Jr. (argued), Moses Lasky, Richard Haas, Brobeck, Phleger & Harrison, San Francisco, Cal., Richard J. MacLaury, Pillsbury, Madison & Sutro, San Francisco, Cal., Richard W. Curtis, Fred Laymon, Gulf Oil Corp., Los Angeles, Cal., Donald C. Smaltz, Ralph B. Perry, III, Grossman, Smaltz, Graven & Perry, Los Angeles, Cal., Douglas C. Gregg, E. A. McFadden, Union Oil Co. of California, Los Angeles, Cal., for appellees.
    Before CARTER and GOODWIN, Circuit Judges, and FERGUSON, District Judge.

       The Honorable Warren John Ferguson, United States District Judge for the Central District of California, sitting by designation.

   ALFRED T. GOODWIN, Circuit Judge:

Copp Paving and related antitrust plaintiffs appeal from the dismissal of their claims against certain major oil companies and related defendants for want of jurisdiction.

Plaintiffs process asphaltic concrete and sell and deliver paving materials to construction jobs in California. Except for some imported crude oil which may find its way into their end-product, plaintiffs concede that they process California-produced materials and deliver all of their product to California construction sites.

Defendants Gulf Oil, Union Oil of California, and Edgington Oil Company are producers of asphaltic oil; defendants Industrial Asphalt, Inc., and Sully-Miller Contracting Company are competitors of plaintiffs.

Plaintiffs alleged that defendants had violated §§ 1 and 2 of the Sherman Act by conspiracy in restraint of trade and monopolization, §§ 3 and 7 of the Clayton Act by tieing agreements and illegal acquisitions (of Sully-Miller by Union and Industrial Asphalt by Gulf), and § 2(a) of the Robinson-Patman Act by price discrimination.

The district court held, on these facts, that the essential element of interstate commerce was missing from the asserted claims based upon various sections of the Sherman, Clayton, and Robinson-Patman Acts.

This interlocutory appeal was taken pursuant to 28 U.S.C. § 1292(b) because the threshold question of interstate commerce is critical in the further course of this and related litigation.

The district court held that the production of asphaltic concrete, a substantial amount of which was used to construct interstate highways, was neither “in” nor did it “affect” interstate commerce. We hold that the production of asphalt for use in interstate highways rendered the producers “instrumentalities” of interstate commerce and placed them “in” that commerce as a matter of law.

We start with the proposition that Congress in passing the Sherman Act desired to exercise the full extent of its Constitutional power in restraining trust and monopoly agreements. United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 558-559, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944); Rasmussen v. American Dairy Ass’n, 472 F.2d 517 (9th Cir. 1972) (quoting); United States v. South Florida Asphalt Co., 329 F.2d 860, 867 (5th Cir.) (quoting), cert, denied sub nom., R. H. Wright, Inc. v. United States, 379 U.S. 880, 85 S.Ct. 149, 13 L.Ed.2d 87 (1964); United States v. Chrysler Corp. Parts Wholesalers, Northwest Region, 180 F.2d 557, 559 (9th Cir. 1950) (quoting). As the Supreme Court’s reading of the commerce clause has broadened over time, so has its interpretation of the jurisdictional scope of the Sherman Act. See cases collected at Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 230-231, 68 S.Ct. 996, 92 L.Ed. 1328 (1948). Thus, every Sherman-Act holding that jurisdiction does not lie is a holding that the evil alleged is beyond the power of Congress to control. Conversely, a holding that conduct is within the reach of Congress’ constitutional power for some other purpose is entitled to great weight in a Sherman Act case. See Rasmussen v. American Dairy Ass’n, 472 F.2d at 522, 523 n. 13; Fort Lauderdale v. East Coast Asphalt Corp., 329 F.2d 871 (5th Cir. 1964); De Gorter v. F. T. C., 244 F.2d 270 (9th Cir. 1957).

There are, of course, limits to the technique of relying on determinations of the breadth of the commerce power made in one area of congressional regulation in order to determine the breadth of the commerce power in another. First, “interstate commerce is an intensely practical concept drawn from the normal and accepted course of business.” United States v. Yellow Cab Co., 332 U.S. 218, 231, 67 S.Ct. 1560, 1567, 9,1 L.Ed. 2010, 2020 (1947). See North American Co. v. SEC, 327 U.S. 686, 705, 66 S.Ct. 785, 90 L.Ed. 945 (1946); Overstreet v. North Shore Corp., 318 U.S. 125, 128, 63 S.Ct. 494, 87 L.Ed. 656 (1943). Although the power of Congress over commerce is unitary, different evils sought to be regulated may impinge on commerce in different ways and to differing extents, and the power of Congress may vary accordingly. See McLeod v. Threlkeld, 319 U.S. 491, 495, 68 S.Ct. 1248, 87 L.Ed. 1538 (1943). Regulation of business practices through the antitrust laws, for example, may justifiably reach further than some other types of regulation because the antitrust laws are concerned directly with aiding the flow of commerce.

Second, the Congressional power is not over persons but over practices. It is irrelevant that a person is in some way engaged in interstate commerce if the practice complained of is in no way related to that commerce. Yellow Cab Co. of Nevada v. Cab Employers, Automotive & Warehousemen, Local 881, 457 F.2d 1032, 1034 (9th Cir. 1972).

For example, in United States v. Yellow Cab Co., 332 U.S. 218, 67 S.Ct. 1560, 91 L.Ed. 2010 (1947), the Supreme Court held that there was Sherman Act jurisdiction over that portion of a complaint which alleged that the Yellow Cab Company had attempted to monopolize the carrying of passengers between two interstate railroad termini in Chicago, but held that there was no jurisdiction over the allegations that the same company had violated the Sherman Act in its in-tracity carriage. And in Page v. Work, 290 F.2d 323 (9th Cir. 1961), this circuit held that it lacked jurisdiction over a claim by a Los Angeles newspaper that other papers had injured it by diverting some of its legal advertising, a strictly local product, although the newspapers were subject to federal regulation in other ways because they purchased out-of-state newsprint and sold a few papers out of state. While a conspiracy of the newspapers to control the interstate aspects of their business obviously would have been “in” commerce, a conspiracy involving only a strictly local product was only within the power of Congress to control if it “affected” commerce.

A very different function is involved when courts pass on a congressional decision that certain activities affect commerce than when the courts are asked to determine that question for themselves. Katzenbach v. McClung, 379 U.S. 294, 303-304, 85 S.Ct. 377, 13 L.Ed. 2d 290 (1964). A congressional determination that particular activities affect commerce receives deference in court. United States v. Rodriguez-Camacho, 468 F.2d 1220 (9th Cir. 1972). However, under the Sherman Act, Congress has left it to the courts to determine whether activities affect interstate commerce. United States v. Darby, 312 U.S. 100, 120, 61 S.Ct. 451, 85 L.Ed. 609 (1941). Therefore, in reviewing a defendant’s conduct for compliance with the Sherman, Clayton, and Robinson-Patman Acts, the court must make its own decision.

In Overstreet v. North Shore Corp., 318 U.S. 125, 63 S.Ct. 494, 87 L.Ed. 656 (1943), the Supreme Court held that vehicular roads were instrumentalities of interstate commerce and that persons repairing them were “engaged in commerce” and therefore covered by the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. In Alstate Construction v. Dur-kin, 345 U.S. 13, 73 S.Ct. 565, 97 L.Ed. 745 (1953), the Supreme Court extended Overstreet to hold that those engaged in the local production of a road surfacing mixture for local use in an interstate highway were also covered by the Act. The test said to be ■ applicable to these cases was “whether the work is so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than isolated local activity.” Mitchell v. C. W. Voll-mer & Co., 349 U.S. 427, 429, 75 S.Ct. 860, 862, 99 L.Ed. 1196, 1200 (1955).

We agree with the Fifth Circuit in Fort Lauderdale v. East Coast Asphalt Corp., supra,, that those cases control this one. If highway builders and suppliers are “in” commerce because of their close relationship with an instrumentality of interstate commerce for labor relations purposes, they are in commerce for the regulation of price fixing and monopolization. See Mandeville Island Farms, Inc. v. American Sugar Co., supra. See also United States v. Shubert,. 348 U.S. 222, 226-227, 75 S.Ct. 277, 99 L.Ed. 279 (1955). Furthermore it is not incidental activities unrelated to the interstate nexus of these businesses which were alleged to have been involved here, but illegal manipulation of the very costs and products which put these same businesses “in” interstate commerce for purposes of the Fair Labor Standards Act. The reach of Congress’ commerce power for Sherman Act purposes is no shorter than it is for any other purpose.

Plaintiffs asserted claims under the Clayton and Robinson-Patman Acts as well as under the Sherman Act. Section 3 of the Clayton Act prohibits tieing arrangements by “any person engaged in commerce.” For there to be jurisdiction under the Clayton Act § 7, both the “acquired” and the “acquiring” companies must be “in commerce.” Robinson-Pat-man price discrimination jurisdiction depends on the sales involved, as well as the selling company being “in commerce.” Defendants argue that the “in commerce” requirements of these statutes are satisfied only by sales which cross state lines. While recognizing that this position has recently been adopted by another ■ circuit with respect to the Robinson-Patman Act, it should be noted that the court there did not consider, because the facts did not require it to, whether this state-line test also applies to sales of a commodity (such as asphalt used in the construction of interstate highways) which is itself closely linked to an instrumentality of interstate commerce. See Littlejohn v. Shell Oil Co., 483 F.2d 1140 (5th Cir., 1973) (en banc). We see no reason why sales which are “in commerce” because of their nexus with an instrumentality of interstate commerce must also satisfy a state-line test of “in commerce.” To be sure, the statutory language of the Clayton and Robinson-Patman Acts is not as broad and flexible as that of the Sherman Act. Nevertheless, the fact that these acts were intended to supplement the purpose and effect of the Sherman Act supports a uniform interpretation of the “in commerce” requirement present in all three acts. See United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963); Standard Fashion Co. v. Magrane-Hous-ton Co., 258 U.S. 346, 42 S.Ct. 360, 66 L.Ed. 653 (1922). See also Conference Rep.H.R.Rep.No.2951, 74th Cong., 2d Sess. (1936). Nor can we accept defendants’ argument that the plaintiffs must show not only that the parties and sales are “in” commerce but must show that competition was injured before the court has jurisdiction. This is the result of confusing the substantive with the jurisdictional requirements of the antitrust laws. It is not necessary for a plaintiff to prove his whole case in order to give the courts jurisdiction to hear it.

Plaintiff also appeals the district court’s refusal to take pendent jurisdiction of a state antitrust claim against defendants. In view of the complexity of the litigation and number of parties in these consolidated antitrust actions, the refusal was within the discretion of the district court.

The partial summary judgment in favor of all defendants except the defendant Sully-Miller is reversed, and the cause is remanded for further proceedings consistent with the views expressed herein.

The question of the summary judgment in favor of the defendant Sully-Miller is reserved, as it was not properly before this court under Fed.R.Civ.P. 54 (b).

Reversed and remanded.


author: COLEMAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Henry Thomas LEIGH, M.D., Defendant-Appellee.
    No. 73-1615.
    United States Court of Appeals, Fifth Circuit.
    Nov. 8, 1973.
    Rehearing and Rehearing En Banc , Denied Jan. 11, 1974.

      William S. Sessions, U. S. Atty., Wayne F. Speck, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellant.
    Leland D. Sutton, Odessa, Tex., John R. Lee, Kermit, Tex., for defendant-ap-pellee.
    Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
   COLEMAN, Circuit Judge:

Henry Thomas Leigh is a duly licensed doctor of medicine and since December 15, 1959 has practiced as such in Andrews, Texas.

On October 16, 1972 he was indicted in multiple counts for “knowingly and intentionally distributing controlled substances, 21 U.S.C., § 841(a)(1), and for easing the same to be distributed, 18 U.S.C., § 2(b)”.

Each of the counts described the defendant as a medical doctor (M.D.) and charged that he “did knowingly and intentionally distribute and cause to be distributed [the particular prohibited substance] by means of a prescription signed by said defendant”.

In essence the defendant was charged with the basic offense of unlawfully distributing controlled substances, 21 U.S. C., § 841(a)(1). The additional charge that he caused it to be done rests on the general statute defining principals: “Whoever wilfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a crime”; 18 U.S.C., § 2(b). Therefore, the whole matter comes right back to unlawful distribution.

On motion of the defendant the District Court dismissed the indictment for failure to charge an offense, Rule 12(b)(2) F.R.Cr.P.

The United States appeals the dismissal. We affirm.

It has been decided that a doctor can be indicted, tried, and convicted for the unlawful dispensing of a controlled substance, if his prescription is not for a legitimate medical purpose in the usual course of his professional practice, United States v. Bartee, 10 Cir., 1973, 479 F.2d 484, 487.

The appellee, however, has not been indicted for unlawful dispensing. The charge is unlawful “distribution”.

One hundred and sixty years ago Mr. Chief Justice Marshall wrote that an indictment must specify the crime which is to be proved, that the conduct alleged must be an offense against the law, and that one may not be charged with one crime and convicted of another, The Schooner Hoppet & Cargo v. United States, 7 Cranch 389, 11 U.S. 389, 3 L. Ed. 380.

This leads to an examination of the statutory definitions of what constitutes distributing and dispensing controlled substances.

Section 841(a)(1) of 21 U.S.C. begins by saying that:

“Except as authorized by this sub-chapter, it shall be unlawful for any person knowingly or intentionally'—
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or”

It will be noted that the activities separately referred to in this section are: (1) “manufacture”, (2) “distribute”, and (3) “dispense”. A fourth factor is possession with the intent to do any of the three.

Section 802(10) of 21 U.S.C. defines the word “dispense”:

“The term ‘dispense’ means to deliver a controlled substance to an ultimate user or research subject by, or pursuant to the lawful order of, a practitioner, including the prescribing and administering of a controlled substance, and the packaging, labeling, or compounding necessary to prepare the substance for such delivery. The term ‘dispenser’ means a practitioner who so delivers a controlled substance to an ultimate user or research subject.”

This clearly means that a doctor who administers or prescribes a controlled substance is, for the purposes of the statute, dispensing it, although as Bartee, supra, points out, if he performs that function in an unlawful manner he may be indicted, tried and convicted for it.

This view is buttressed by the provisions of 21 U.S.C., § 802(11), defining “distribute”:

“The term ‘distribute’ means to deliver (other than by administering or dispensing) a controlled substance. The term ‘distributor’ means a person who so delivers a controlled substance.”

Obviously, the specific language “other than by administering or dispensing” is not to be ignored.

The conclusion is inescapable, we believe, that the indictment as drawn fails to charge an offense within the terms of the applicable statutes. We note that the District Court continued the doctor under bail to allow the return of another indictment if one should be considered justified.

The Judgment of the District Court is Affirmed.

      . Count 1 is a fair sample of all the counts in the indictment:
      “That on or about June 21, 1971, within the Midland/Odessa Division of the Western District of Texas, HENRY THOMAS LEIGH, M.D., did knowingly and intentionally distribute and cause to be distributed approximately 30 Tuinal capsules, a Schedule III controlled substance by the means of a prescription signed by said defendant dated 0/21/71 with the name ‘Ed Wilson’ following the printed word ‘for’ on same.”


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. William Clyde BROWN, Appellant. UNITED STATES of America, Appellee, v. Hill Eugene JONES, Appellant.
    Nos. 73-1631, 73-1632.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 1, 1973.
    Decided Nov. 16, 1973.
    certiorari Denied April 1, 1974.
    gee g ^

      John E. Hall, North Wilkesboro, N. C. (McElwee & Hall, North Wilkesboro, on brief), for appellants in Nos. 73-1631 and 73-1632.
    N. Carlton Tilley, Jr., Asst. U. S. Atty. (William L. Osteen, U. S. Atty., on brief), for appellee in Nos. 73-1631 and 73-1632.
    Before HAYNSWORTH, Chief Circuit Judge, BRYAN, Senior Circuit Judge, and CRAVEN, Circuit Judge.
   PER CURIAM:

Appellants Brown and Jones were convicted of possession of non-tax-paid spirits; each appeals, alleging that his motion to suppress evidence seized by Alcohol, Tobacco and Firearms Division officers, acting with a warrant, should have been granted. The gist of appellants’ contentions is that in order to obtain facts sufficient to constitute probable cause for the issuance of the search warrant, the ATF officers went to the very place which they sought to search under the authority of the warrant. The first “search” without a warrant was illegal, they argue, because within a constitutionally protected area (the cur-tilage) ; therefore the evidence later seized under a search warrant, which depended upon the evidence uncovered in the prior illegal search for its validity, must be suppressed as the “fruit” of an illegal search. Because we believe there was no “search” in the first instance, we affirm the judgments of the district court.

In each instance ATF agents entered upon the premises of appellants, walked to within a few feet of their barns, detected the odor of fermenting mash or fruit and then proceeded to the magistrate to obtain a search warrant. While we agree that the barns in ques-tion are part of the curtilage, Walker v. United States, 225 F.2d 447 (5th Cir. 1955), we cannot agree, at least so long as the “open fields” doctrine of Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1925) (holding that a trespass does not, of itself, constitute an illegal search) is permitted to stand, that there has been a “search” in violation of the fourth amendment. The ATF officer in neither instance entered into the barn itself, nor attempted to look inside to confirm his suspicions. See Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951 (1931); Walker v. United States, 225 F.2d 447 (5th Cir. 1955); United States v. Mullin, 329 F.2d 295 (4th Cir. 1964). In Taylor the Supreme Court stated:

Prohibition officers may rely on a distinctive odor as a physical fact indicative of possible crime; but its presence alone does not strip the owner of a building of constitutional guaranties against unreasonable search.

286 U.S. at 6, 52 S.Ct. at 467. See also Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

It is a bit disquieting that we must countenance federal snooping around farmers’ barns as a legitimate investigative technique. There must surely be a better way than Hester-type trespass, but it is not readily discerned in light of the strict standards for the issuance of search warrants set out in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Where there is no entry upon -a constitutionally protected area, there can be no “search” within the meaning of the fourth amendment. Appellants’ reasonable expectations of privacy— while extending to their dwellings and the immediate area around them and even to the area occupied by outbuildings such as the barns in question, 25 C.J.S. Curtilage p. 84- — cannot, in light of Hester, be said to include the “open fields” around the barn. The words “persons, houses, papers and effects” do not insulate the air around appellants’ barns from the peculiar odor of fermenting fruit stored within.

Affirmed.

      . Brown and Jones appeal from separate trials involving incidents occurring at different times and places; however, the cases are so factually similar that they were argued together before the panel and are treated together in this opinion.

      . Brown’s barn was sixty-three yards from his house. The agent advanced to within ten yards of the barn, at which point he detected the odor of fermenting apples coming from the barn.
      Jones’ barn was located some two hundred yards from his • dwelling. The officer in this instance walked to within two or three feet of the barn, from which he not only smelled the distinctive odor of moonshine whiskey but also observed a plastic hose and electric wire coming from underground and leading into the barn’s interior.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Nolan J. WILLIAMS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jeri G. MATZA, Defendant-Appellant.
    Nos. 73-1893, 73-1972.
    United States Court of Appeals, Ninth Circuit.
    Nov. 6, 1973.
    Frank O. Bell, Jr., Asst. Federal Public Defender (argued), James F. Hewitt, Federal Public Defender, San Francisco, Cal., for defendant-appellant Williams.
    Herbert W. Yanowitz (argued), San Francisco, Cal., for defendant-appellant Matza.
    Larry Callaghan, Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., John C. Gibbons, F. Steele Langford, James H. Daffer, Asst. U. S. Attys., San Francisco, Cal., for plaintiff-appellee.
    Before CHAMBERS, CHOY and WALLACE, Circuit Judges.
   PER CURIAM:

Williams and Matza appeal their convictions after jury trial for violation of 21 U.S.C. § 841 (a)(1). We affirm.

None of the points raised by appellants on this appeal have merit. But we deem deserving of comment Williams’ contention that the district court erred in refusing to give the jury three requested instructions on entrapment. The instructions say in part that unless the government agent who importuned Williams to sell him narcotics had reasonable suspicion that Williams was already engaged in such illicit selling, he should be acquitted for entrapment. Trice v. United States, 211 F.2d 513 (9th Cir.), cert, denied, 348 U.S. 900, 75 S.Ct. 222, 99 L.Ed. 707 (1954), is cited in support of this contention.

Trice, however, cannot be interpreted as holding that such an instruction is necessary. In Trice the issue was whether the situation there involved entrapment as a matter of law — an issue the court decided adversely to the defendant. While the court quoted from the district court’s instructions, which seemed to incorporate a reasonable suspicion requirement, the instructions were not challenged on appeal. In any ease, the court nowhere approved the quoted instructions. Rather it held that the critical inquiry was whether the defendant was predisposed to commit the crime and pointed approvingly to certain “excuses” set out in United States v. Becker, 62 F.2d 1007, 1008 (2d Cir. 1933), as convincing evidence of predisposition. Among thpse were a defendant’s “willingness” to commit an offense “as evinced by his ready complaisance” in the criminal scheme suggested by the government agent. Trice v. United States, swpra at 518, quoting from United States v. Becker, supra at 1008. Moreover, in Trice the court found further ■ evidence of predisposition in Trice’s easy yielding to a second offer to buy drugs which occurred within two weeks of the first transaction. Both types of evidence could not have been known before the agent approached the suspect and thus could not have been a basis for a reasonable suspicion.

Therefore, it is evident that Trice did not require proof of reasonable suspicion to defeat the defense of entrapment. The law of this circuit is otherwise. As Silva v. United States, 212 F.2d 422 (9th Cir. 1954) — a case which rejected a reasonable suspicion requirement shortly after Trice — holds, it is the predisposition of the defendant, whether known to the agents or not, which is central in determining the entrapment issue. Cf. United States v. Griffin, 434 F.2d 978, 981-82 (9th Cir. 1970), cert, denied, 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971).

        See also United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) in which the Court emphasized that the entrapment rule was designed to protect those innocent people cajoled into committing crimes, not as a tool to cheek overzealous police conduct. The reasonable suspicion requirement would not add to tlie px-otection already afforded tlxe innocent by requiring proof of a defendant’s predisposition. It is, rather, intended to control police conduct.


text:
    Jose Joel JIMENEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-2605
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 13, 1973.
    Certiorari Denied April 1, 1974.
    See 94 S.Ct. 1623.
    Jose Joel Jimenez, pro se.
    James R. Gough, Asst. U. S. Atty., Houston, Tex., for respondent-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 431 F.2d 409, Part I (5th Cir. 1970).

   PER CURIAM:

Jose Joel Jimenez was duly convicted after he pled guilty to two separate offenses of transporting and smuggling marijuana, a violation of 21 U.S.C. § 176(a). He appeals from the district court’s rejection of his Section 2255 petition to vacate his concurrent 15 year sentences. Jimenez contends that his guilty plea was infirm because (1) he was misled and coerced by both his own counsel and the trial court when they mistakenly informed him that by statute the sentence to be imposed did not carry the possibility of probation or parole; (2) the trial judge did not specifically enumerate and advise him of the full panoply of rights that his plea would operate to waive; and (3) the trial judge accepted his plea without determining that it was supported by the facts. Additionally, he asserts that his retained attorney was incompetent. Each and all of these assignments of error are without merit.

Only one point warrants discussion here. A trial court’s use of the actual indictment as the sole source for establishing the factual basis of the plea may not always be adequate to determine “that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty,” especially where the facts and law are complex. See United States v. White, 483 F.2d 71 (5th Cir. 1973); Majko v. United States, 457 F.2d 790 (7th Cir. 1972); United States v. Cody, 438 F.2d 287 (8th Cir. 1971). However, in Jimenez’s case the inquiry made, though based principally on the counts of the indictment, was factually precise enough and sufficiently specific to develop that Jimenez’s conduct on the occasions involved was within the ambit of that defined as criminal. The acceptance of the pleas accorded both with Fed.R.Crim.P. 11 and United States v. McCarthy, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).

Affirmed.

      . Fed.R.Crim.P. 11, Notes of Advisory Oommittee on Criminal Rules.


text:
    Captain C. J. TAYLOR et al., Plaintiffs-Appellees, v. The CITY OF JACKSON et al., Defendants-Appellants, L. J. Sullivan et al., Intervenors.
    No. 73-2462
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit. ,
    Nov. 20, 1973.
    E. Grady Jolly, Jr., Paul O. Miller, III, John E. Stone, Jackson, Miss., for defendants-appellants.
    E. P. Lobrano, Cary E. Bufkin, Jackson, Miss., for Capt. C. J. Taylor.
    George F. Woodliff, Sam E. Scott, Jackson, Miss., for intervenors.
    Before BELL, GODBOLD and GEE, 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:

Captain C. J. Taylor, a Jackson, Mississippi, police officer, seeks to invoke federal jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3), complaining of mistreatment at the hands of the municipal civil service commission of the City of Jackson. The District Court overruled the defendant city’s motion to dismiss. We granted leave to take an interlocutory appeal under 28 U.S.C. § 1292(b). We reverse.

Miss.Code 1972 Ann. § 21-31-1 et seq. authorized creation of the Jackson municipal civil service commission. Section 21-31-13 provides that “[a] 11 appointments to and promotions in [fire and police departments covered by municipal commissions] shall be made solely on merit, efficiency, and fitness, which may be ascertained by open competitive examination and impartial investigation.” Taylor’s complaint alleges that following an organizational shakeup in the Jackson police department, he and many of his fellow officers were victimized by new promotion practices. It alleges in general terms deprivation of rights secured by the First and Fourteenth Amendments to the United States Constitution. None of the specific charges, however, points to even a color-able interference with First Amendment rights to free speech, press, association, and religious observance, or to interference with Fourteenth Amendment rights to due process and equal protection. Fairly read the complaint as amended says no more than that the effects of the challenged new departmental practices fell randomly upon various individuals on the force. This is not enough to rise to constitutional levels. See McDowell v. Texas, 465 F.2d 1342 (5th Cir. 1971) (en banc); Dorsey v. NAACP, 408 F.2d 1022 (5th Cir. 1969). The matters which Taylor alleges in his complaint are matters of state statutes to be raised, if he desires, in the courts of the state.

Reversed.

      . The complaint originally contained allegations of racial discrimination, but plaintiffs amended to withdraw the racial claims from consideration.


text:
    UNITED STATES of America, Appellee, v. Lowell JONES, Appellant.
    No. 73-1769.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 7, 1973.
    Decided Nov. 14, 1973.
    Herbert W. Louthian, Columbia, S. C. [Court-appointed counsel], for appellant.
    Oscar W. Bannister, Asst. U. S. Atty. (John K. Grisso, U. S. Atty., on brief), for appellee.

      Before CLARK, Associate Justice and WINTER and RUSSELL, Circuit Judges.

       Supreme Court of the United States, retired, sitting by designation.

   PER CURIAM:

Upon consideration of the briefs ánd oral argument, we find no reversible error. We note that defendant was found guilty of simple bank robbery, but not sentenced on that verdict. Defendant was also found guilty of aggravated bank robbery and was sentenced on that verdict. Both offenses arose out of the same facts. Since defendant's conviction for simple bank robbery merged into his conviction for aggravated bank robbery, defendant shall be deemed to have been convicted solely of aggravated, bank robbery.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Levy Joseph WILLIAMS, Defendant-Appellant.
    No. 73-2662
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 20, 1973.
    Walter H. Mizell, Dallas, Tex. (Court-appointed) , for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

Appellant Williams plead guilty to a violation of 18 U.S.C. §§ 2113(a). At the time the federal sentence was imposed the appellant was in custody of state authorities under a criminal charge. The federal sentence was to commence when he was released to the custody of a United States Marshal. He now challenges the sentence imposed claiming that his federal sentence should run concurrently with his detention by the state. We find no merit in this contention. His federal sentence was imposed in accordance with the applicable law and the constitutionally protected rights of the appellant.' See Blackshear v. United States, 434 F.2d 58 (5th Cir. 1970) and 18 U.S.C. § 3568.

Affirmed.

      . The violation arose from the robbery of a savings and loan association.


author: TUTTLE, Circuit Judge:

text:
    William D. ARNOLD et al., Plaintiffs-Appellants, v. Bert R. TIFFANY et al., Defendants-Appellees,
    No. 73-1404.
    United States Court of Appeals, Ninth Circuit.
    Oct. 25, 1973.
    Certiorari Denied March 18, 1974.
    See 94 S.Ct. 1578.
    Timothy H. Fine (argued), Richard A. Canatela (appeared), San Francisco, Cal., Wallace L. Rosvall (appeared), Thomas R. Sheridan, of Simon, Sheridan, Murphy, Thornton & Hinerfeld, Los Angeles, Cal., G. Joseph Bertain, Jr., San Francisco, Cal., for plaintiffs-appellants.
    John J. Hanson (argued), Donald L. Zachary, of Gibson, Dunn & Crutcher, Robert C. Lobdell, William A. Niese, of The Times-Mirror Co., Los Angeles, Cal., Wes Spaulding, San Gabriel, Cal., for defendants-appellees.
    Before TUTTLE MERRILL and BROWNING, Circuit Judges.

       Of the Fifth Circuit, sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   TUTTLE, Circuit Judge:

Appellants, seventeen independent news dealers who distribute the Los An-geles Times under individual contracts with the Times Mirror Company, appeal the district court’s dismissal pursuant to Fed.R.Civ.P. 12(b)(6) of their claims under 42 U.S.C. § 1981, § 1982, and § 1985(3).

FACTS

The plaintiffs seek injunctive relief and damages for violations of the Civil Rights Act, Sections 1981, 1982 and 1985(3). The plaintiffs allege that the defendants, who are various officers and employees of the publisher of The Los Angeles Times and one other independent newspaper dealer, “have conspired with invidiously discriminatory animus to deprive on a class-wise basis the Los Angeles Times newspaper dealers including plaintiffs of the equal protection of the laws through intimidating, harassing, causing economic injury and coercing said dealers from exercising their rights under the first and fourteenth amendments to the United States Constitution to peaceably assemble.” Such conspiratorial conduct is alleged to have been taken to prevent plaintiffs from forming and maintaining a newspaper dealers’ trade association.

, On February 26, 1973, the district court heard oral argument on plaintiffs’ motion for preliminary injunction. At an informal conference the next day in which the matter was continued, the counsel for defendants stated their intent to file a motion to dismiss under Fed.R.Civ.P. 12(b) (6) for failure to state a claim upon which relief can be granted in order to test the legal sufficiency of the complaint. Since plaintiffs’ counsel acknowledged that the case law showed that Sections 1981 and 1982 are limited to instances of racial discrimination, sufficiency of the cause of action under Section 1985(3) was deemed decisive. The district court and counsel agreed that the motion should focus on the crucial question of the applicability of Section 1985(3).

For the purpose of ruling on the motion pursuant to Fed.R.Civ.P. 12(b)(6) the district court considered as admitted “the well-pleaded material allegations of the complaint.” Having considered the pleadings and briefs and heard the arguments of counsel, the district court, 359 F.Supp, 1034, concluded that plaintiffs’ complaint failed to state a claim for relief under Sections 1981, 1982, and 1985(3).

LAW

The issue on appeal is whether the district court erred in dismissing plaintiffs’ complaint on the ground that the actions of the publisher of the Los An-geles Times and others in conspiring to prevent through economic reprisals the independent newspaper dealers for the Los Angeles Times from forming and maintaining an association of independent newspaper dealers did not state a cause of action under 42 U.S.C. § 1985(3) as expounded in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971).

The district court in its opinion correctly noted that Griffin is controlling in this case. That court, after discussing the Griffin holding stated:

“ . . . Plaintiffs do not claim that defendants were motivated by racial animus. The critical question which this Court must then decide is what other ‘kind of invidiously discriminatory motivation’ — in addition to racial bias — did the Court have in mind when it used the words ‘class-based, invidiously discriminatory -animus.’
“A close reading of Griffin leads this Court to conclude that the words ‘class-based, invidiously discriminatory animus’ refer, at most, to that kind of irrational and odious class discrimination akin to racial bias — such as discrimination based on national origin or religion. The complaint alleges no such discrimination.
“Furthermore, for this Court to conclude that § 1985(3) was intended to embrace the class urged here — a newspaper dealers’ trade association —would, in effect, amount to treating that section as a general federal tort law.”

We affirm on other grounds discussed below.

The claims which appellants’ complaint must establish to state a cause of action under Section 1985(3) were enumerated by Griffin:

“To come within the legislation a complaint must allege that the defendants did (1) ‘conspire or go in disguise on the highway or on the premises of another’ (2) ‘for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.’ It must then assert that one or more of the conspirators (3) did, or cause to be done, ‘any act in furtherance of the object of [the] conspiracy,’ whereby another was (4a) ‘injured in his person or property’ or (4b) ‘deprived of having and exercising any right or privilege of a citizen of the United States.’ ” 403 U.S. at 102-103, 91 S.Ct. at 1798.

The allegations in the complaint, on their face, fulfill the requirements of elements (1) and (3). In this case, element (2), whose absence caused the district court to grant the motion under Fed.R.Civ.P. 12(b)(6), and element (4b) present substantial questions left unanswered by Griffin.

The Court in Griffin interpreted the language of the element (2) requirement, “purpose (emphasis added) of depriving ... of the equal protection of the laws, or of equal privileges and immunities under the laws,” as indicating a Congressional intent to limit the scope of Section 1985(3). The Court said:

“ . . . That the statute was meant to reach private action does not, however, mean that it was intended to apply to all tortious, conspiratorial interferences with the rights of others.....The constitutional shoals that would lie in the path of interpreting § 1985(3) as a general federal tort law can be avoided by giving full effect to the congressional purpose — by requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment. . . . The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all.” 10 403 U.S. at 101-102, 91 S.Ct. at 1798.

And in footnote 10 the Court explained:

“ . . . The motivation aspect of § 1985(3) focuses not on scienter in relation to deprivation of rights but on invidiously discriminatory animus.” Id.

We do not believe that the allegations by appellants suffice under the purpose requirement of element (2) — -“class-based, invidiously discriminatory animus” — to be actionable under Section 1985(3) as discussed in Griffin. The class, in the present case, is composed of over four hundred newspaper dealers of the Los Angeles Times, each of whom has an independent contract with the Los Angeles Times. The appellants are seventeen of these dealers who allege that the appellees conspired to violate their right of association in forming and maintaining a newspaper dealers’ association. The flaw appears in the appellant’s syllogism when the “animus” alleged herein is compared to that in Griffin. There the motivating hostility was derived from the fact that the plaintiffs were black, members of a racial class against which animus existed, and that the defendants believed them to be civil rights organizers. But here, the appellants were not injured because they were newspaper dealers, the class alleged, but because of their activities in attempting to maintain a dealer association. The animus is directed at and derived from the dealer association and is divorced from the fact that there is a class of newspaper dealers.

The deficiency in the appellant’s complaint is similar to that in Hughes v. Ranger Fuel Corp., 467 F.2d 6, 8-10 (4th Cir. 1972). The plaintiffs there alleged that while engaging in efforts to “turn in” violators of the 1899 Refuse Act, the defendants “pelted them with rocks and otherwise assaulted them, driving them from the scene of the pollution for the purpose of preventing them from securing photographic evidence” for a prospective cause of action in the federal court. The court stated:

“In their complaint, the plaintiffs make no allegations of any class-based motivation on the part of the defendants. . . . There is no averment in the complaint that the defendants attacked the plaintiffs because the latter were environmentalists, as had been suggested in this Court; the allegations of the complaint are specific that the assault was sparked solely by the instant reaction of the defendants to the fact that the plaintiffs were seeking to photograph the defendants, clearly for the purpose of prosecuting them under the Refuse Act. Theirs was a purely spontaneous act, not alleged to be a part of any general pattern of discriminatory action directed to any class, as was the situation in Action v. Gannon (8th Cir. 1971) 450 F.2d 1227.” Id. at 10.

The element (4b) necessary for a cause of action under Griffin requires the appellants to be “deprived of having and exercising any right or privilege of a citizen of the United States.” 403 U. S. at 103, 91 S.Ct. at 1799. The appellants assert a deprivation of their first amendment right of association. Since the first amendment has not been held to be a restraint on private conduct, only on state action, the appellants suggest two novel arguments for sustaining their right. First, the appellants would argue that the elimination of the state action requirement by Griffin extends the right of association under the first amendment as a bar against private interference as well as state action in Section 1985(3) suits. Second, appellants assert that the right of association is one of that bundle of rights held by all persons who are national citizens. S.Since we have affirmed the district court’s decisión on the class-based animus limitation, it is unnecessary for us to reach these issues or the question of the constitutional power of Congress to enact such a statute.

The judgment of the trial court is affirmed.

      . The Court in Griffin, in effect, “held that a purpose to deprive a person of equal rights will be inferred from the racial [or other class-based] motivation of the conspiracy.” The Supreme Court, 1970 Term, 85 Harv.L.Rev. 3, 98 n. 21 (1971). Cf. Griffin v. Breckenridge, 403 U.S. at 102 n. 10, 91 S.Ct. 1790; Azar v. Conley, 456 F.2d 1382, 1385-1386 (6th Cir. 1972).

      . Having found the allegations in the complaint inadequate on the above ground, we find it unnecessary to reach the “class” question on which the district court based its decision.

      . This can be accomplished by reading Section 1985(3) as a substantive law embodying constitutional rights without the state action requirement rather than just a remedial statute. Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971) (en banc) ; Commonwealth of Pennsylvania v. Local Union # 542, Int. U. of Op. Eng., 347 F.Supp. 268 (E.D.Penn. 1972). See Griffin v. Breckenridge, 403 U. S. 88, 90, 103, 91 S.Ct. 1790, 29 L.Ed.2d 38 (1971) ; The Supreme Court, 1970 Term, 85 Harv.L.Rev. 3, 99-100 (1971). Contra, Dombrowski v. Dowling, 459 F.2d 190, 193-196 (7th Cir. 1972). Cf. Place v. Shepherd, 446 F.2d 1239,1246 (6th Cir. 1971).

      . To support the derivation of such a national personal right, the appellants cite Griffin v. Breckenridge, 403 U.S. at 104, 105, 106, 91 S.Ct. 1790; Griswold v. Connecticut, 381 U.S. 479, 483, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) ; N.A.A.C.P. v. Alabama, 357 U.S. 449, 460-461, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) ; De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 81 L.Ed. 278 (1937).

      . See U.S.Const. Amend. XIV, § 5; Commonwealth of Pennsylvania v. Local Union # 542, Int. U. of Op. Eng., supra. Cf. United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Bruce Wayne KIMBRELL, Defendant-Appellant.
    No. 73-1535.
    United States Court of Appeals, Fifth Circuit.
    Nov. 15, 1973.

      Roy Lewis, Jacksonville, Fla. (court-appointed), for defendant-appellant.
    John L. Briggs, U. S. Atty., John D. Roberts, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.
    Before THORNBERRY, SIMPSON and CLARK, Circuit Judges.
   PER CURIAM:

Bruce Kimbrell appeals from his conviction before a jury and sentence for violation of the third paragraph of Title 18, U.S.C. § 1708, the possession of a check stolen from the United States mail, knowing the same to have been stolen. We affirm.

The appellant did not take the stand or offer any other evidence at trial. His first assignment raises the sufficiency of the government’s proof to sustain the guilty verdict, the point having been preserved for appellate review by motion for judgment of acquittal at the close of the government’s evidence.

While there was no direct evidence that the check was stolen from the mails, the proof showed that it was contained in a letter bearing requisite postage deposited in the mails by the maker, Mrs. Audrey Averill, at Merritts Island, Florida, on February 14, 1972, that it was never received by the payee and the addressee of the letter, Howard Mangold, at Jacksonville, Florida, that it was negotiated in February 1972 at a Dixie-Vim gasoline service station in Jacksonville, Florida, by some unidentified person posing as the payee, and that the payee’s purported endorsement was on the back of the check. This endorsement signature was disclaimed by the payee and was shown by expert handwriting testimony to have been written by the appellant Bruce Kimbrell. The service station attendant placed a Florida automobile license tag number, 2-48383, on the back of the check when he accepted it. The license number was taken down from the car of which the person who tendered the check was either the driver or the occupant. This tag number was shown to have been issued for a particular 1964 white Rambler. Through several witnesses the chain of possession of the Rambler was traced from its original owner to Kimbrell in February 1970, when he assumed the payments on the car. A government witness, Raleigh Fowler, testified that in “early 1970” he had occasion to help Wayne Kimbrell move the white Rambler from a place where it was stuck.

In United States v. Martinez, 5 Cir. 1972, 466 F.2d 679, 687, 688, we had occasion to state the elements of the offense involved here:

“To secure a conviction here, therefore, the prosecution had to show that the check actually had been stolen from the mails and that the defendant unlawfully possessed it, knowing that it was stolen.'

We there explicitly rejected the contention by Martinez that he had to know that the securities there involved were stolen from the mails. Id. at 687.

In this ease Kimbrell attacks the sufficiency of the proof to show (1) actual theft from the mails, and (2) the appellant’s possession, citing Martinez, supra; Allen v. United States, 5 Cir. 1968, 387 F.2d 641; Goodman v. United States, 5 Cir. 1965, 341 F.2d 272, and United States v. Hines, 2 Cir. 1958, 256 F.2d 561.

We think that the jury, taking the view of the evidence most favorable to the government, Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, was justified in concluding: (a) that the check was in fact stolen from the mails, (b) further that it was in Kimbrell’s possession, as shown by the fraudulent endorsement in his handwriting, and (c) finally that the fact of his making the forged endorsement was sufficient proof of his knowledge of the stolen character of the check.

Kimbrell also urges that the trial judge erred in failing to instruct the jury as to what constitutes possession, as set forth in his requested charges. While the judge did not define possession in terms, and while we do not approve the unexplained refusal to give appellant’s requested charges or his own definition of this element of the offense, we are persuaded that in the circumstances present and in view of the content of the court’s very complete general charge, prejudicial error in this respect is not demonstrated. Cain v. United States, 5 Cir. 1960, 274 F.2d 598, cert, denied 1960, 362 U.S. 952, 80 S.Ct. 864, 4 L.Ed. 2d 869; Sowers v. United States, 5 Cir. 1958, 255 F.2d 239.

Affirmed.

      . To three years confinement under the indeterminate parole provisions of Title 18, U.S.C. § 4208(a)(2).


text:
    Joseph Paul MOORE, Petitioner-Appellant, v. Hon. John HILL, Attorney General of Texas, Respondent-Appellee.
    No. 73-1854
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 14, 1973.
    Joseph Paul Moore, pro se.
    Dunklin Sullivan, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before BELL, GODBOLD and GEE, Circuit Judges.

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

   PER CURIAM:

On this appeal from denial of a petition for writ of habeas corpus, the latest of several successive federal petitions, the appellant claims ineffectiveness of counsel in 1951 Texas state proceedings in which he was convicted of burglary and his sentence enhanced to life under the Texas recidivist statute, Art. 63, Tex.Pen.Code. Either as part thereof or as an independent ground he alleges failure of counsel to take an appeal from the 1951 proceedings. Also he asserts the uneonstitutionality of the recidivist statute. The District Court dismissed the petition for failure to allege exhaustion of state remedies.

Appellant correctly points out that the district judge who dismissed the petition was the attorney who is claimed to have been ineffective and to have failed to take an appeal in 1951. Undoubtedly the district judge, who dismissed the petition without an evidentiary hearing, overlooked the fact that one of the allegations was directed at his own performance as counsel more than 20 years earlier. Under the circumstances, we have independently examined the tortuous path of appellant’s writ history. It reveals that the intertwined issues of effectiveness of counsel and denial of or failure to appeal were determined adversely to appellant in 1970 in S.D. Texas No. 69-H-129, a federal habeas case before a different United States district judge, following an evidentiary hearing in which appellant was represented by counsel. The petition here appealed from, S.D. Texas No. 73-H-362, was dismissed March 16, 1973, and appeal taken April 3, 1973. Subsequently, in June 1973 in still another habeas case in the same district, S.D.Texas, No. 72-H-1185, and before still another United States district judge, the same claims were raised and were denied on the basis of the 1970 determination.

The constitutionality of the Texas habitual offender statute was determined by the United States Supreme Court in Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), and this issue was raised by petitioner in his 1970 case and there determined adversely to him pursuant to Spencer.

All issues raised by appellant in the instant habeas petition having been determined adversely to him in other federal habeas proceedings, the order of the District Court dismissing the instant petition is affirmed but on different grounds as hereinabove set out.

      . Presumably the two cases proceeded more or less concurrently because appellant styled the instant petition as a petition for a “writ of declaratory judgment.” The District Court correctly recharacterized it as a petition for a habeas writ.


text:
    UNITED STATES of America, Appellee, v. Ollie Herman LINCOLN, Jr., Appellant.
    No. 73-1189.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 4, 1973.
    Decided Nov. 5, 1973.
    Certiorari Denied March 18, 1974.
    See 94 S.Ct. 1562.

      Arthur M. Reynolds, Washington, D. C. (Arthur G. Murphy, Sr., Baltimore, Md., on brief), for appellant.
    Michael E. Marr, Asst. U. S. Atty. (George Beall, U. S. Atty., on brief), for appellee.
    Before BRYAN, Senior Circuit Judge, and RUSSELL and WIDENER, Circuit Judges.
   PER CURIAM:

Convicted under 18 U.S.C. App. § 1202(a) of possessing and receiving firearms in interstate commerce after having previously (on October 17, 1968) been convicted of a felony, Ollie Herman Lincoln, Jr. appeals. His only substantial assignments of error are: (1) that, admittedly, one of the three weapons described in the one-count indictment had not been transported in interstate commerce since the enactment of the criminal statute on June 19, 1968; and (2) that the felony of which he had been convicted was wilful tax evasion, 26 U. S.C. § 7201, not a crime of violence and, therefore, not the type of felony contemplated by the statute.

On consideration of the record and arguments of counsel, orally and on brief, we find the assignment of error without merit and affirm the conviction. United States v. Giannoni, 472 F.2d 136 (9 Cir.), cert, denied 411 U.S. 935, 93 S.Ct. 1911, 36 L.Ed.2d 396 (1973); see United States v. Mullins, 476 F.2d 664 (4 Cir. 1973); 18 U.S.C. App. § 1202(c)(2) defining “felony”; United States v. Mancino, 474 F.2d 1240 (8 Cir.), cert, denied, 412 U.S. 953, 93 S.Ct. 3020, 37 L.Ed.2d 1007 (1973).

Affirmed.


text:
    Jeffrey HART et al., Plaintiffs-Appellants, v. The COMMUNITY SCHOOL BOARD OF BROOKLYN and New York School District #21, et al., Defendants-Appellees, Doctor Harvey Scribner, Chancellor of the Board of Education of the City of New York, Defendant-Appellee.
    No. 405, Docket 73-2290.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 26, 1973.
    Decided Nov. 2, 1973.

      James I. Meyerson, New York City (Nathaniel R. Jones, N.A.A.C.P., Leo Shapiro, Kirschenbaum & Shapiro, New York City, on the brief), for plaintiffs-appellants.
    Hyman Bravin, New York City, for defendants-appellees Community School Board and others.
    Before SMITH, FEINBERG and OAKES, Circuit Judges.
   PER CURIAM:

This litigation comes to us in a curious posture. Plaintiffs, who are students and parents, brought suit over a year ago in the United States District Court for the Eastern District of New York against the Community School Board of Brooklyn, its members, and the Chancellor of the Board of Education of the City of New York, claiming that these defendants were sanctioning a racially unbalanced and under-utilized school, Mark Twain Junior High School # 239. There have been voluminous proceedings below, including a partial trial on the merits of plaintiffs’ application for permanent injunctive relief and backing and filling by plaintiffs as to whether they were pressing a motion for preliminary injunctive relief. The latter culminated in a hearing on July 13, 1973, on plaintiffs’ renewed motion for a preliminary injunction, and in a written order denying the motion, dated July 23, 1973, which refers to an oral opinion of the court. Although we have been favored with six volumes of an appendix, containing 2,941 pages, neither party prior to argument saw fit to furnish us with the transcript containing that oral opinion.

It is now obvious from an examination of the briefs, the various appendices and the transcript of the July 13 hearing that the district court failed to make necessary findings of fact and conclusions of law in denying the motion for a preliminary injunction. Accordingly, we remand for that purpose. We are informed that the district court has set December 10 for a continuation of the full trial on the merits, and hopes to have the case decided by the end of the year. We would applaud such expedition, and nothing in this opinion should be regarded as encouraging any delay in that schedule or in preventing a consolidation under Fed.R.Civ.P. 65(a)(2) of all or part of the hearing on preliminary relief, which is the subject of this appeal, with the trial on the merits for permanent relief.

Case remanded.

      . Should the trial occur -within the time limit set forth above, it might then be unnecessary to proceed with findings of fact and conclusions of law on the motion for preliminary relief.