author: LEWIS R. MORGAN, Circuit Judge. GOLDBERG, Circuit Judge

text:
    GRAY LINE MOTOR TOURS, INC., and Toye Bros. Airport Service, Inc., Plaintiffs-Appellants, v. CITY OF NEW ORLEANS et al., Defendants-Appellees.
    No. 73-3791.
    United States Court of Appeals, Fifth Circuit.
    Aug. 5, 1974.

      Ralph L. Kaskell, Jr., Eberhard P. Deutsch, Charles F. Seemann, Jr., Frederick B. Alexius, New Orleans, La., for plaintiff s-appellants.
    Maury A. Herman, Russ M. Herman, New Orleans, La., Blake Arata, City Atty., New Orleans, La., for City of New Orleans.
    Benjamin J. Trombatore, H. A. Vondenstein, Kenner, La., for City of Kenner and Officials.
    Herbert W. Christenberry, Jr., New Orleans, La., for defendants-appellees.
    Before GOLDBERG, SIMPSON and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge.

Plaintiff-appellant, Toye Brothers, for over 30 years was the exclusive local ground carrier of air passengers at the New Orleans International Airport by virtue of a franchise agreement requiring payment of 10% of the gross revenues, with a minimum guarantee. There was no competitive bidding involved in Toye Brothers obtaining this original franchise. In 1972, when Toye Brothers’ franchise contract expired, the New Orleans Aviation Board announced that in the future the ground carrier franchise would be awarded on the basis of competitive bidding. Following such bidding, the transportation franchise was awarded to the New Orleans Transportation Service, Inc., who now has the benefit of preferential parking and access at the airport, in addition to being exempt from a 15% gross receipts use charge imposed on non-franchised carriers. Toye Brothers, although a non-franchised carrier, had refused to pay the 15% charge up to the date of the district court proceedings.

On July 5, 1973, Toye Brothers filed suit in the United States District Court for the Eastern District of Louisiana against the Airport Aviation Board, and others, alleging: (1) that various burdens imposed on Toye Brothers by the Airport Authority, such as restricted parking area and restricted access to the terminal, constitutes interference with interstate commerce, and (2) that the 15% charge on Toye Brothers’ gross receipts was illegally passed under state law and that it violates both the Airport Development Acceleration Act of 1973 and the United States Constitution, Article I, § 8.

After extensive preliminary proceedings, the defendants, New Orleans Aviation Board, and others, moved for a judgment on the pleadings in favor of the defendants under 12(c) of the Federal Rules of Civil Procedure. A hearing was held on September 20, 1973. The district court ruled that the portion of defendants’ motion to dismiss relating to Toye Brothers’ allegations of burdens on interstate commerce and harassment be granted and that considerations for that court of the legality of the 15% gross revenue charge be stayed until the state courts have had an opportunity to determine its legality under state law.

Toye Brothers then appealed that order to the Fifth Circuit, alleging: (1) that the partial dismissal in the lower court was error, and (2) that the stay order was improper.

Before either of these contentions of error can be met, however, this court is faced with the question of whether the district court’s order of September 21, 1973, is such an order as is appealable to this court at this time.

I

Section 1291 of Title 28 of the United States Code provides:

The Courts of Appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . except where a direct review may be had in the Supreme Court.

This final judgment rule is the dominant rule in federal appellate practice. Di Bella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). Generally, an order granting a partial summary judgment is not final and therefore not appealable unless it contains a Rule 54(b) certification. Coulter v. Sears, Roebuck & Co. (5th Cir. 1969), 411 F.2d 1189; Campbell v. Westmoreland Farm, Inc. (2nd Cir. 1968), 403 F.2d 939; Moore’s Federal Practice, Vol .9, § 110.08 [1], pp. 112-113. The finality rule is not, however, without exception. Title 28 U.S.C. § 1292(a)(1) describes interlocutory orders that are appealable as of right. It states: “Interlocutory orders of the district courts . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had by the Supreme Court; . . . ” are appealable as of right.

Was this partial summary judgment tantamount to the denial of an injunction? We find that it was not, and therefore it did not fall under any of the exceptions of the finality rule. This court then has no jurisdiction to consider the question raised as to the first issue presented by the plaintiffs.

The plaintiffs had alleged that because various burdens were placed on them, interference with interstate commerce occurred. The lower court’s order held that although many of the plaintiffs’ passengers were in interstate commerce, plaintiffs’ allegation raised issues purely local in nature which should be properly left to the Aviation Board and the Louisiana state courts for resolution.

The scope of review under 1292(a)(1) exercisable by Courts of Appeals is very limited. As was stated in United States Steel Corporation v. Fraternal Association of Steel Haulers (3rd Cir. 1970), 431 F.2d 1046, at 1048:

This limited review is necessitated because the grant or denial of a preliminary injunction is almost always based on an abbreviated set of facts, requiring a delicate balancing of the probabilities of ultimate success at final hearing with the consequences of immediate irreparable injury which could possibly flow from the denial of preliminary relief. Weighing these considerations is the responsibility of the district judge; only a clear abuse of his discretion will justify appellate reversal.

The test, then, is whether or not the action of the district court was clearly erroneous. We find this not to be a denial of an injunction, but rather the lower court properly controlling what issues it would have before it in trying a specific cause. No jurisdiction exists for this court to consider the partial dismissal. Di Bella, supra.

II

The next question before this court is whether the stay order concerning pending state litigation involving the validity of the 15% gross receipts charge amounts to an injunction and is therefore appealable.

Whether a district court has rendered a decision relating to an injunction for purposes of an interlocutory appeal under the statute is not always easy to determine. However, a district court may not avoid immediate review of its determination simply by failing to characterize or label its decision as one denying or granting injunctive relief. If, for example, an action has the effect of denying the requested relief without actually making a formal ruling, then the refusal of the district court to issue a specific order will be treated as equivalent to the denial of a preliminary injunction and will be appealable. McCoy v. Louisiana State Board of Education (5th Cir. 1964), 332 F.2d 915; United States v. Lynd (5th Cir. 1952), 301 F.2d 818, cert. den., 371 U.S. 893, 83 S.Ct. 187, 9 L.Ed.2d 125.

The fact that injunctive relief is being sought is not sufficient in and of itself to bring a court order issued during the course of an action within the scope of the interlocutory appeals statute. For example, the denial of a summary judgment motion in an action seeking injunctive relief is not appealable as is an order denying an injunction because the only determination that has been made is that there are genuine issues of material fact to be decided at trial. Goldstein v. Cox, 396 U.S. 471, 90 S.Ct. 671, 24 L.Ed.2d 663 (1970); Switzerland Cheese Association, Inc. v. E. Horne’s Market, Inc., 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966); Madry v. Sorel (5th Cir. 1971), 440 F.2d 1329. But, however, it has been held that where a district court grants a defendant’s motion for partial summary judgment which in effect constitutes a final denial of the injunctive relief requested by the plaintiff, then such an order is appealable. Abercrombie & Fitch Co. v. Hunting World, Inc. (2nd Cir. 1972), 461 F.2d 1040.

Whether the order of the district court comes under 1292(a)(1) is, however, not so clear. Considering first the district court’s stay order, with few exceptions, the federal courts have rejected the contention that an order staying an action is appealable under 1292(a)(1).

One exception is for an action in which the plaintiff seeks injunctive relief, including a preliminary injunction, and a stay is granted pending other litigation. It would appear that this circuit has held that in such a situation the stay acts as a denial of an injunction and is appealable under 1292(a)(1). The cases which establish this exception are, however, limited in scope and procedural posture. Furthermore, an inclusion by this court of the present case under this exception, which would broaden the exception even further and do violence to the policy against piecemeal review, should be avoided. See, Wright, The Interlocutory Appeals Act of 1958, 23 F.R.D. 199 (1959).

The Fifth Circuit cases cited to substantiate this exception are Jackson Brewing Company v. Clarke, 303 F.2d 844 (5th Cir. 1962), cert. den., 371 U.S. 891, 83 S.Ct. 190, 9 L.Ed.2d 124 (1962), reh. den., 371 U.S. 936, 83 S.Ct. 305, 9 L.Ed.2d 272 (1962); Wirtz v. Mississippi Publishers Corporation, 364 F.2d 603 (5th Cir. 1966), and Glen Oaks Utilities, Inc. v. Houston, 280 F.2d 330 (5th Cir. 1960). In Jackson, Judge Tuttle stated:

Though the appellant is perhaps correct in asserting, in its brief, that “[i]t is literally impossible to reconcile everything that has been written on this subject by the various Circuits,” we think the rule which has emerged from the various decisions can be stated thus: An order staying or refusing to stay proceedings in the District Court is appealable under § 1292(a)(1) only if (A) the action in which the order was made is an action which, before the fusion of law and equity, was by its nature an action at law; and (B) the stay was sought to permit the prior determination of some equitable defense or counterclaim [footnote omitted].

The Jackson court concluded that the case before them did not meet this two-prong test and therefore was not appeal-able. An examination of the case before us demonstrates that it was not by its nature an action at law and for that reason fails to come under the test as stated in Jackson. See, Baltimore Contractors v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233 (1955); Morgantown v. Royal Insurance Company, 337 U.S. 254, 69 S.Ct. 1067, 93 L.Ed. 1347 (1949).

The Wirtz case dealt with the appealability of a continuance for one year of the Secretary of Labor’s pending action to enjoin defendants from violating the Fair Labor Standards Act. Then District of Columbia Circuit Judge Burger, sitting by designation, held that a continuance of one year operates in this specific context as an effective denial of an injunction and is therefore appealable under 1292(a)(1). Also involved in Wirtz was a 54(b) certification by the district judge as to another aspect of the case. This type situation simply does not exist in the case now before the court.

The Glen Oaks case, however, presents additional problems. There, Judge Jones stated:

We are asked to determine whether error was committed by the district court in the entry of its stay order. But before that question is reached, we consider whether the stay order is appealable. If the order is one which grants or denies injunctive relief an appeal may be taken under 28 U.S.C. § .1292, even though the order is interlocutory and not final. Where the stay order is only a procedural step in controlling the progress of a case is not appealable. United States v. Richardson (5th Cir. 1953), 204 F.2d 552. Where stay orders such as the one before us have been issued in proceedings which, historically, fell into the category of common law actions, such orders were regarded as the equivalent of an injunctive order of a court of equity and were therefore appealable. Baltimore Contractors v. Bodinger, 348 U.S. 176 [75 S.Ct. 249, 99 L.Ed. 233] ... It might follow that the considerations which prompted the relaxation of the rule which previously restricted abstention to cases equitable in character, would justify an elimination of the historical technical rule which regard stay orders in actions legal in nature as injunctive but did not so regard them in equitable causes. The operation of the stay order is the same in the action equitable as in the action legal and if a right of appeal should be allowed or denied in one, the same should be true in the other.

The complaint in Glen Oaks prayed for a temporary restraining order and a final injunction. No other relief was sought. The entry of the stay order, the court said in Glen Oaks, was for all. practical purposes a denial of a temporary in junetion. The court in Glen Oaks went on to say that whether the order is subject to appeal depends on its effect rather than its terminology. Judge Jones then found that the order had such attributes of finality that an appeal could be taken.

A more recent Fifth Circuit opinion seems to settle this question even more conclusively. In Mercury Motor Express v. Brinke (5th Cir. 1973) 475 F.2d 1086, Judge Thornberry held that in a situation where the district court denied preliminary injunctive relief and in the same order stayed further proceedings pending final action by the ICC, jurisdiction under 1292(a)(1) would lie. First, the court in Mercury Motor stated it is clear that jurisdiction will lie under 28 U.S.C. § 1292(a) (1) to review an order denying a preliminary injunction. Judge Thornberry noted that a stay order standing alone that is considered independently of an order denying a preliminary injunction would not be appealable, but, as was noted in his Footnote 6, a stay order which itself had the effect of denying a preliminary injunction would come under 1292(a) (1) jurisdiction. Glen Oaks Utilities v. City of Houston (5th Cir. 1960), 280 F.2d 330. That is the situation we have before us now. This court then does have jurisdiction to review the stay order of the district court.

What then is the scope of the appellate review of the lower court’s stay order? As a general rule, there has been a broad range of discretion to federal district courts to the disposition of motions for a stay of their own proceedings pending action elsewhere. That discretion is not, however, limitless. In the area of stays in favor of pending litigation in another court, there are several exceptions to the general rule of broad trial court discretion. Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226 (1922); Lyons v. Westinghouse Electric Corp. (2nd Cir. 1955), 222 F.2d 184, cert. den., 350 U.S. 825, 76 S.Ct. 52, 100 L.Ed. 737 (1955). In each case the freedom of choice of the court is severely circumscribed. One of these exceptions in which the appellate courts have made some inroads on the freedom of the district courts to refer the parties to another forum is in those cases deemed proper for federal abstention. The Supreme Court has indicated that when the issue in controversy requires that the federal court make a determination based on a previously uninterpreted state statute the interpretation should normally be made by the state courts, subject to final review by the high court. Railroad Commissioner of Texas v. Pullman Co., 312 U.S. 496, at 500, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The author of the Pullman opinion, Justice Frankfurter, wrote in a 1959 decision, “We have required District Courts, and not merely sanctioned an exercise of their discretionary power, to stay their proceedings pending the submission of the state law question to state determination.” Louisiana Power & Light Company v. City of Thibodaux, 360 U.S. 25, at 28, 79 S.Ct. 1070, at 1072, 3 L.Ed.2d 1058 (1959). Thus, district court discretion in this situation is limited, consisting mainly in the determination that the “exceptional circumstances” that are prerequisite to abstention really exist. Meredith v. City of Winter Haven, 320 U.S. 228, at 234, 64 S.Ct. 7, 88 L.Ed. 9 (1943).

The abstention doctrine allows a federal court whose jurisdiction has been properly invoked to postpone decision, pending trial in a state court, if the result might turn on issues of state law that are as yet unresolved. By requiring the parties to litigate first in the state courts this practice may render unnecessary a decision of the federal questions presented. Moreover, it is likely to lessen friction in a federal-state relationship, interference with important state functions, and tentative decisions on questions of state law. The Supreme Court has repeatedly declared that abstention does not involve the abdication of federal jurisdiction, but only the postponement of its exercise. See, e. g., England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959). Thus, absention can be viewed as an elaborate type of stay order justified as an assertion by the court of its equitable powers consistent with the requirements of federalism. Pullman, supra, Glen Oaks, supra.

Was the district court’s abstention by means of a stay order appropriate to the case before it? We find that it was.

Plaintiffs-appellants contended that the 15% gross receipts charged is illegal under both state and federal law. The state law claim was based on the Louisiana Constitution, Article XIV, § 31.6(B), which provides for approval by the city council of all fees and charges passed by the Aviation Board. The City of New Orleans maintains that a municipal ordinance (828 M.C.S. § 4-12.2), which gives the Aviation Board broad authority to execute contracts and concession grants, constitutes “approval” pursuant to the State Constitution. Plaintiffs maintain that the specific approval of the 15% charge is necessary. This issue of state law has never been passed upon the Lousiana courts and obviously may be dispositive of the issues at hand. As was stated in Pullman, supra, “In this situation a federal court of equity is asked to decide an issue by making a tentative answer which may be displaced tomorrow by state adjudication. . . . The reign of law is hardly promoted if an unnecessary ruling of a federal court is thus supplanted by a controlling decision of a state court.”

There is no question then that the federal district court could properly exercise its discretion to await final state determination of the validity of the law in question.

That part of the district court’s order staying the proceeding below is in all respects

Affirmed.

GOLDBERG, Circuit Judge

(dissenting).

Because my opinion on the proper scope of federal jurisdiction in this case —both original and appellate — differs significantly from the majority’s view, I must respectfully dissent. The concepts of nonappealability and abstention are here combined to quarantine appellants’ judicial movement. However, the majority’s melding of these doctrines does not forge a chain any stronger than its individual links; and neither principle, properly applied, renders any of the actions complained of in the district court immune to Article III nisi prius consideration and thereafter appellate scrutiny.

The majority correctly notes that appellants’ complaint stated two separate, though related, causes of action. In its order of September 21, 1973, the district court granted judgment on the pleadings pursuant to Rule 12(c) F.R.C.P. on the claim of harassment by airport and police officials so severe as to constitute a burden on interstate commerce, and stayed proceedings on the permissibility of the 15% use charge on gross receipts “until the state courts have had an opportunity to determine its legality under state law.” My brothers do not reach the action of the district court in disposing of appellants’ claim of operational interference, finding it to be a “partial” judgment unaccompanied by district court certification. To my mind, however, that ruling is subject to review by this Court on its merits as one part of an order that was in all respects final.

There is, of course, no question but that the judgment on the pleadings entered below represents a complete determination by the district court on the merits of the harassment claim. Hence, had appellants raised only that issue in their complaint of July 5, 1973, the judgment would be appealable under the terms of 28 U.S.C. § 1291. Consequently, the majority’s conclusion that, in the language of Rule 54(b) F.R.C.P., the September 21 order “adjudicates fewer than all the claims,” must rest on its belief that the stay of federal proceedings on the use charge did not amount to a final determination on that claim for the purposes of appeal. On the basis of the Supreme Court’s opinion in Idlewild Bon Voyage Liquor Corp. v. Epstein, 1962, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794, however it seems clear that the bells had indeed tolled for Toye Brothers on this point and that the stay, standing alone, would also have constituted a final decision from which an appeal would lie as of right.

In Idlewild, plaintiff had brought suit challenging certain aspects of the New York Alcoholic Beverage Control Law as violative of the Commerce, Import-Export, and Supremacy Clauses of the United States Constitution. The district court stayed the federal action in order to give the New York state courts an opportunity to rule on certain aspects of the litigation. In response to the State’s attack on its jurisdiction to hear the appeal, the Second Circuit held that:

Appellees’ argument that this order was not final and hence unappealable under 28 U.S.C. §§ 1291, 1292 is not well taken. No parallel state actions were pending and there was no state adjudication to await. There was nothing to be done in federal court because the action there had for all intents and purposes concluded. Appellant was effectively out of court—

Idlewild Bon Voyage Liquor Corp. v. Rohan, 2 Cir. 1961, 289 F.2d 426, 428, modified on other grounds sub nom., Idlewild Bon Voyage Liquor Corp. v. Epstein, supra. In its own consideration of the merits, the Supreme Court explicitly approved this holding, noting that “[t]he Court of Appeals properly rejected the argument that the order of the District Court [was not final].” 370 U.S. at 715 n. 2, 82 S.Ct. at 1296. Idle-wild’s teaching, gleaned by both courts and commentators, instructs us that where, as in the present case, no state court action is pending at the time of a federal court’s determination to abstain, the abstention order is a final decision appealable under 28 U.S.C. § 1291. Druker v. Sullivan, 1 Cir. 1972, 458 F.2d 1272; 9 Moore’s Federal Practice ¶ 110.20 [4.2] at 251.

We are faced here with a single order which disposes of two claims in different ways. Either method taken in isolation amounts to a final decision subject to appellate scrutiny at this time. I know of nothing in law or logic which would make the whole order any less than the sum of its parts.

My brothers’ view on the appealability of the judgment on the pleadings makes extended discussion of the merits of that ruling on my part premature. I cannot forbear from commenting, however, that given the stringent requirements for granting such a dismissal and the necessary focus of this litigation on the actual impact of the city’s policies on appellants’ operations, greater inquiry into the facts — as through a hearing on the merits — seems the better course.

With regard to that portion of the order reviewed on its merits, I am unable to agree that the teaching of Railroad Commission of Texas v. Pullman Co., 1941, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, was properly applied by the district court in staying consideration of the 15% charge. I cannot concur in a conclusion that the merits of this controversy are too delicate for the federal touch and that abstention is therefore wise and compelled. Just as state courts are assumed to be open and competent to adjudicate questions of federal law in cases properly before them, see Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, so the doctrine of pendent jurisdiction, see United Mine Workers of America v. Gibbs, 1966, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218; the Article III diversity grant, see Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, and the myriad federal question litigation involving rights and relationships created by the states presuppose the ability of federal courts to interpret and apply state law. Pullman and its progeny do not dispute that general commingling of judicial authority; rather they call upon a federal court to question the propriety of determining matters of state law and the wisdom of proceeding with related issues of federal law only under certain “special circumstances.” Lake Carriers’ Association v. MacMullan, 1972, 406 U.S. 498, 510, 92 S.Ct. 1749, 32 L.Ed.2d 257. Hence, where resolution of a difficult and unsettled issue of state law vitally affecting an area of local concern is preliminary to consideration of a perplexing federal constitutional question, and where authoritative construction of the state statute may well eliminate the need for or limit the constitutional issues.

abstention may be proper in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication.

Harman v. Forssenius, 1965, 380 U.S. 528, 534, 85 S.Ct. 1177, 1182, 14 L.Ed.2d 50.

It is true that in the present case the issue of state law — whether the use charge can be properly imposed by the Aviation Board pursuant to blanket City Council approval — has never been directly addressed by the courts of Louisiana; but the mere absence of definitive state judicial construction does not automatically trigger abstention, Doud v. Hodge, 1956, 350 U.S. 485, 487, 76 S.Ct. 491, 100 L.Ed. 577. Neither perceptible complexities in the state provisions under consideration here nor possibly serious implications of this decision in the overall Louisiana scheme for governing the New Orleans airport have surfaced to justify the timidity of the court below. Moreover, a state court determination that the 15% charge has not received adequate approval by the New Orleans City Council would doubtless bring only a temporary alleviation of the controversy, given the insistence of the city on collection of the fee. Appellants face the prospect of “the delay and expense to which application of the abstention doctrine inevitably gives rise,” England v. Medical Examiners, 375 U.S. 411, 418, 84 S.Ct. 461, 466, 11 L.Ed.2d 440, only to be met at the end of the state road with an affirmance of the Board’s authority or formal adoption by the city of what it has already endorsed.

When inquiry shifts to the federal questions, the cause of abstention is not materially advanced by an examination of the issues thus avoided. Appellants challenge the gross receipts charge as violative of both the Airport Development Acceleration Act of 1973 and the Commerce Clause. Though involving the constitutional principle of federal supremacy, the former argument is exclusively an issue of statutory construction ; and the Supreme Court has explicitly rejected the Pullman doctrine as a method of postponing the interpretation of federal statutes, Propper v. Clark, 1949, 337 U.S. 472, 490, 69 S.Ct. 1333, 93 L.Ed. 1480. Nor has this Circuit’s prior approach to attacks on airport use charges as unduly burdensome of interstate commerce indicated that such challenges pose difficult constitutional questions. See Toye Brothers Yellow Cab Company v. Irby, 5 Cir. 1971, 437 F.2d 806, 811. Pullman does not provide a means for delaying decision whenever a case raises related state and federal questions. Its purpose is to avoid untutored federal interference in complex state regulatory schemes, while permitting the resolution of controversies without resort to “substantial constitutional issue [s] . . . [touching] sensitive area[s] of social policy upon which the federal courts ought not to enter unless no alternative to [their] adjudication is open.” Railroad Commission of Texas v. Pullman Co., supra, 312 U.S. at 498, 61 S.Ct. at 644. Its application to this case serves neither interest.

      . A question was raised during oral argument concerning the effect of the denial of plaintiffs’ request for a 54(h) certification. An order involving injunctive relief issued prior to the entry of final judgment generally may be appealed under the statutory exception to the final judgment rule found in Section 1292(a)(1). That provision not only gives the Courts of Appeals jurisdiction to review interlocutory orders involving injunctions, but also an appeal may be perfected under that statute even when the action involves local claims or multiple parties. In other words, the appellant need not obtain a certification under 54(b) if the order entered by the district court falls under section 1292(a)(1). Injunctive orders then are considered to be outside the scope of Rule 54(b). AVright and Miller, Federal Practice and Procedure, Vol. 10, § 2658. To hold otherwise would mean that the application of the Interlocutory Appeals Statute would be subject to the district judge’s discretion to enter an order and certify and this we find would be contrary to the spirit of the statute. AVright and Miller, Federal Practice and Procedure, § 2962, p. 613.

      . Rule 54(b) of the Federal Rules of Civil Procedure provides in relevant part that: When more than one claim for relief is presented in an action . . . the court may direct the entry of a final judgment as to one or more but fewer than all of the claims . . . only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims . . . shall not terminate the action as to any of the claims and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims ....

      . The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States . except where a direct review may be had in the Supreme Court. 28 U.S.C. § 1291.

      . There is no reference in the record to any state court action over the legality of the 15% use charge on gross receipts; and both the answer filed by appellees in August of 1973 and the September 21 memorandum of the district court indicate that no such proceeding had been instituted prior to the order. The only reference to a state proceeding concerning the use charge comes in the briefs, where appellees state that on December 21, 1973, three months after the abstention order was entered, the City of New Orleans filed suit to collect sums alleged as due from appellants’ airport operations.

      . Conversely, my own view on the finality of the September 21 order makes it unnecessary for me to reach the question of whether the judgment also operated as the denial of a preliminary injunction. I must confess, however, that a reading of the majority opinion has left me considerably perplexed on this point. All of the arguments advanced in support of review of the stay order under 28 U.S.C. § 1292(a)(1) seem equally applicable to the dismissal of the harassment claim, for which injunctive relief was also sought.

      . A claim may be dismissed on the pleadings only where it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 1957, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80. See also Continental Motors Corp. v. Continental Aviation Corp., 5 Cir. 1967, 375 F.2d 857.


source: Caselaw Access Project

author: GEE, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Guadalupe RODRIGUEZ, Victoriano Lozano Vega, Rolando Garcia and Rene Castillo Tamez, Defendants-Appellants.
    No. 73-2008.
    United States Court of Appeals, Fifth Circuit.
    Aug. 5, 1974.

      Anthony J. P. Farris, U. S. Atty., Robert Darden, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Abel Toscano, Harlingen, Tex., for Lozano Vega.
    George W. Storter, Brownsville, Tex. (Court-appointed), for Rene Castillo Tamez.
    Daniel S. Trachtenberg, Houston, Tex. (Court-appointed), for Rolando Garcia.
    L. Aron Pena, Edinburg, Tex., Melchor Chavez, Harlingen, Tex., for Guadalupe Rodriguez.
    Before COLEMAN, AINSWORTH and GEE, Circuit Judges.
   GEE, Circuit Judge:

At the conclusion of their joint trial by jury all four appellants were found guilty as charged for their respective roles in a conspiracy to sell some 106 pounds of marijuana to a federal undercover agent. Specifically, all were found guilty of distributing and possessing with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and conspiring to distribute the same in violation of 21 U.S.C. § 846. In addition, appellants Rodriguez and Vega were convicted of carrying firearms during the commission of a felony in violation of 18 U.S.C. § 924(c)(2). We affirm the convictions on all counts. We do, however, find error in the sentencing proceedings which requires that we Vacate the sentences of Rodriguez and Vega and remand for sentencing.

The testimony of government witnesses, primarily Bonnie Maldonado, a co-conspirator who pleaded guilty, presented the following description of events comprising and surrounding the crime.

While working as a dancer in a club in Harlingen, Texas, Bonnie was approached by a friend whom she knew as Dave, but whom she did not know as the informer he was, concerning the availability of at least fifty pounds of marijuana. Very shortly thereafter, she came in contact with another -friend named Rayford and appellant Garcia, who indicated their willingness to sell well over fifty pounds. With Bonnie as the go-between, an initial deal was made for Garcia and Rayford to deliver 500 pounds of marijuana at a street corner near Rayford’s house at seven o’clock Friday night.

Around six o’clock of the pre-arranged evening, Dave took Bonnie back to his room at the Holiday Inn in Harlingen, where he introduced her to George, an undercover customs agent posing as the prospective buyer. While at the hotel, she called Rayford and confirmed the transaction set for seven o’clock. But, when seven o’clock rolled around, Garcia did not show up at the corner as promised; instead, Bonnie located him at Rayford’s house where he informed her that it was too risky to do business in that neighborhood. Garcia then followed Bonnie back to the corner, where he was introduced for the first time to George, his prospective purchaser. An agreement was made for the delivery to be made at George’s room at the Holiday Inn. George returned to his room to await delivery; instead he received a call from Garcia, saying that he wanted to see the money first. George agreed, and a short time later Garcia showed up at the door accompanied by defendant Tamez. After Garcia and Tamez saw the money, they promised to deliver the dope to the parking lot about an hour to an hour-and-a-half later. An hour-and-a-half after they left Tamez came back to the room and reported that they had run into some trouble, could only deliver 100 pounds that night, but could deliver the other 400 pounds within three or four days. Bonnie went down to the hotel parking lot where Garcia was waiting in a red pickup truck and persuaded him to come up and confirm Támez’s story. He did, and George assented. But then Garcia informed him that he would not use one of his own vehicles to transport the marijuana, whereupon Dave agreed to loan them his car, a green Ford.

Garcia got into the red pickup and told Bonnie and Tamez to follow him in Dave’s car. After leaving the Holiday Inn, Garcia stopped his pickup, and Bonnie saw defendant Rodriguez get out of a white car and into the pickup with Garcia. When they stopped for gas, Garcia told Bonnie to follow him onto the Valley Highway, which leads from Harlingen to Weslaco and then to Pharr. After she and Tamez had followed Garcia and Rodriguez past Weslaco, Bonnie insisted that Garcia pull over and tell her where they were going. Garcia told her that the marijuana was in Pharr. He then asked Tamex to drive the truck, assuring him that Rodriguez was fully familiar with the plan and could show him where to stop. With Garcia driving Dave’s car, he and Bonnie assumed the lead to Pharr where they parked off the highway. When the pickup pulled in behind, Garcia told Bonnie to stay with Tamez in the truck while he and Rodriguez were gone in the car. She and Tamez drove around in the pickup for about twenty minutes and then came back to the spot on the highway to await Garcia’s return. Before too long, the car pulled in behind them, Garcia and Rodriguez got out and into the truck with her and Tamez, and the car departed. This was Bonnie’s first indication that someone else was involved, although she did not see those who let out Garcia and Rodriguez. While in the pickup with the three men, Bonnie noticed that each of them had a gun. After waiting for some time, they took the pickup to a gas station. When Bonnie came out of the restroom, she saw Dave’s car pull in, driven by defendant Vega, who was the sole occupant, and followed by a green pickup. Vega got out of Dave’s car and into one of the pickups. Bonnie got into the passenger side of the car and Garcia got into the driver’s seat, whereupon he told her that they had “made it” and that the marijuana was loaded. They then headed back to Harlingen at a high rate of speed, followed by the red and the green pickups. When they arrived at the Holiday Inn, Garcia yelled at the passing trucks to park across the street. Garcia parked the car at the hotel and left the keys in it. When Bonnie went up to the room to report that the dope had arrived, Garcia rejoined his friends in the pickups. Garcia and Tamez in the green pickup and Vega and Rodriguez in the red then circled the block awaiting Bonnie’s consummation of the deal.

Meanwhile, Bonnie told George that the loaded car was parked out front. As she and George were going down to inspect the load, she advised him that the occupants of the pickups involved were armed. When George opened the trunk, he feigned dissatisfaction that the marijuana was not in bricks, and told her to drive the car around back where he could check it out further. After Bonnie took the car to the rear lot, she noticed a “commotion” across the street and ran up to Dave’s room to warn him that people were getting “busted.” She was met by customs officers and arrested.

Apparently, the commotion noticed by Bonnie was the apprehension of the occupants of the pickups. While she was concluding her job as middleman, the pickups were under surveillance by federal agents. A team composed of customs agents Morrison and Ross pulled over the red pickup as it left a brief rendezvous with the green. Both Vega, who was driving, and Rodriguez, who was a passenger in the red truck, were arrested, along with a third occupant against whom, due to insufficient evidence, the court dismissed all charges at trial. One pistol was taken from Vega, and another found on the floorboard was claimed by Rodriguez. At approximately the same time, a second team of customs agents had stopped the green pickup and apprehended its occupants, Tamez and Garcia. All those arrested were then assembled at the motel, from which they were transported to jail.

Substantial evidence supports each element of the above description, and we accept it as true in evaluating each appellant’s assertion that there was insufficient evidence to convict him. Each of the four also raises other points on appeal more or less specific to him. Containing only a few complaints in common, the appeals are best treated individually.

I.

GARCIA

A. Garcia’s argument that the evidence against him was insufficient to sustain a conviction is meritless. As set out above, the testimony of both Bonnie Maldonado and the undercover agent who posed as the buyer (George) portrayed Garcia as the most visibly active member of this conspiracy. He negotiated the transaction, conducted the expedition to pick up the marijuana, and delivered it to the motel. Such activity constitutes distributing, possession with intent to distribute, and participation in a conspiracy to distribute marijuana— the three counts on which he was charged and convicted. In his defense Garcia offered no plausible explanation of the testimony of the government witnesses. Instead he chose to deny that he even knew Bonnie Maldonado, had ever met with the undercover agent, or had any knowledge whatever of the transaction. He maintained that when arrested he and Tamez were merely riding around in his brother’s green pickup while he cooled off after a squabble with his girlfriend. Obviously the jury chose not to believe Garcia’s story, as they were entitled to do. Grasping at straws, he argues that the government did not prove that the marijuana was not already in the car furnished by “Dave.” Such proof of a negative fact was unnecessary- — and especially so in light of Bonnie’s testimony that the car was loaned only in response to Garcia’s demand that he be furnished a vehicle other than his own in which to transport the dope. Again, his was a farfetched theory totally out of harmony with the evidence presented by the government, and the jury was quite capable of assessing its merit.

B. Garcia complains that the trial court erred in failing to instruct the jury on identification. Such a charge may be appropriate if requested; however, here there was no request or objection to its omission as required by Federal Rule of Criminal Procedure 30. United States v. Esquer, 459 F.2d 431 (7th Cir. 1972), cited by appellant, holds that a jury instruction must be requested except where the failure to instruct “constitutes basic and highly prejudicial error.” This is far from such an instance. Bonnie Maldonado testified that she personally participated in every step of the negotiations with Garcia and that she accompanied him while he made the trip to pick up the weed. Her testimony was amply corroborated by that of the government agents. The undercover agent who posed as George, the prospective buyer, testified to his several personal meetings with Garcia for purposes of arranging the delivery: first on the street corner, and then twice in his motel room. Two customs agents who had the hotel under surveillance testified to having witnessed Garcia’s arrival at the hotel at times critical within Bonnie’s description of the events: one said that he saw Garcia and Tamez go up to George’s room at a time that fell within Bonnie’s description of their visit to count the money; the other testified that he saw Garcia get out of the load car when it returned with the marijuana and get into one of the pickups. Garcia chose to confront all this testimony with an alibi which placed him elsewhere during each of these events. Although such a defense necessarily rested on the hope that the jury would think the prospective witnesses either mistaken or lying, the court was not bound to take it upon itself to dignify such a defense with suitable instructions. Guided by closing argument, the jurors could not have failed to comprehend that acceptance of Garcia’s story would have required that they believe the prosecution witnesses wrong in their identifications.

C. Garcia also complains that the trial court failed to advise the jury fully of the potential unreliability of Bonnie Maldonado’s testimony because of her likely expectation of leniency. Again, no request for such an instruction was made. The court did, however, include a cautionary instruction which was quite adequate under the circumstances. Tillery v. United States, 411 F.2d 644 (5th Cir. 1969), which appellant calls to our attention, is hardly helpful to his position. We there held that it is plain error not to caution the jury where the accomplice’s testimony is “extremely unreliable and self-contradictory and comprises the sum total of the evidence against the defendant.” This is not such a case.

D. Finally, Garcia urges us to find plain error in several statements made by the trial judge in his charge to the jury. He calls our attention to two instances in which the court exhibited a certain animus toward “these people that are making marijuana available to others” and “these peddlers,” terms which he fears the jury interpreted to apply to the defendants. Garcia equates these statements with those in United States v. Musgrave, 444 F.2d 755 (5th Cir. 1971), which we found so prejudicial that a new trial was required despite failure to object. We do not find the indiscretion so serious. Although both statements were unnecessary, and either would have been dangerous had it been emphasized in the instructions, viewing the charge as a whole we find no real possibility of prejudice. The references to “these people” and “these peddlers” fit within the trial judge’s format of explaining the law through the use of hypothetical illustrations, a technique which we find unobjeetionable. In this context, we are convinced that the words were interpreted to refer generally to persons engaged in activities which the narcotics laws were designed to prohibit — a class the jury was left free to determine did not include the defendants. The cautionary instruction —that the jury is not bound by the judge’s comments — the absence of which we found critical in Musgrwoe, was not expressly given; but neither was its curative effect so necessary. Several times, however, the court stressed to the jurors that they were the sole arbiters of the facts, the credibility of the witnesses, and the weight to be given testimony, and that if their recollection of the evidence differed from his, as summarized in the charge, then for them to rely on their own memories. This was sufficient, especially in the absence of an objection or request as required by Federal Rule of Criminal Procedure 30.

II

TAMEZ

A. Tamez’s claim that the evidence was insufficient for the jury to find him guilty of conspiracy, distribution, and possession with intent to distribute has no more merit than Garcia’s. Bonnie Maldonado and the undercover agent who posed as the buyer George testified to his entry into the negotiations and his instrumental role in the run to pick up and deliver the dope. Despite Tamez’s arguments to the contrary, this testimony was sufficient to make a prima facie case of constructive possession and the requisite intent to distribute. His trial strategy was to remain silent, call no witnesses, but attempt to cast a reasonable doubt on the government’s case. That this strategy failed is not surprising. Although Garcia and his alibi witnesses included Tamez in their account of Garcia’s whereabouts on the fateful night, Tamez made no attempt to account for himself or explain why Bonnie and the undercover agent testified to his full involvement. Before us, and before the jury, his counsel argued that the government did not demonstrate that the marijuana was not already in Dave’s car when it was loaned. As we explained in discussing Garcia’s appeal, such an argument was properly, if unsuccessfully, addressed to the jury. It hardly creates, as a matter of law, reasonable doubt of Tamez’s possession or role in the distribution.

B. Tamez argues that the trial judge questioned Robert Noriega, an alibi witness called by co-defendant Rodriguez, so extensively that he, by association, was denied a fair trial.' Because neither he nor any other defendant objected to the judicial cross-examination, we are asked to treat it as plain error under Rule 52(b), F.R.Crim.P., as was done in United States v. Lanham, 416 F.2d 1140 (5th Cir. 1969). Although the judge here came perilously close to assuming the role of a prosecuting attorney, we do not feel that he so abandoned his position of impartiality that he gave the jury an impression that he thought any of the defendants guilty. Viewed most severely, he was testing the recollection and motives of Rodriguez’s alibi witness. Counsel for Rodriguez could have complained to the court about such an undertaking; but, since he did not, we are unwilling to find plain error. Moreover, if any prejudice flowed from this judicial examination, it was not in the direction of defendant Tamez. The challenged alibi did not pertain to Tamez. Noriega’s testimony that he saw Rodriguez and his wife driving alone together in Weslaco during the critical time period lent no support to Tamez’s independent defense, and its impeachment could have done him no appreciable harm.

C. On appeal Tamez argues that his appointed trial counsel was so incompetent that he was denied a fair trial. He complains of his attorney’s advice to remain silent on a plea of not guilty and rely on the alibi presented by co-defendant Garcia, which embraced both Garcia and Tamez — a strategy which he now feels precluded him from asserting entrapment as a defense. Ineffectiveness of trial counsel is not established merely because in retrospect appellate counsel determines that he would have handled the ease differently. But, applying hindsight to this case, it appears that in light of United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), a claim that entrapment resulted from police misconduct, which now seems to be his contention, would not have been a very wise course of action.

He also argues that his trial counsel should have moved for severance and that, even in the absence of such a motion, his joint trial with three other co-conspirators, each of whom were charged with multiple counts, presented a case so complex that no jury could assess it fairly. Concerning this procedure, his appellate brief admits, “This is the law, and it is ‘due process’ at this time, but it is not fair.” We disagree only with the last clause of this statement. As conspiracy cases go, this was a relatively simple one that was confusing only to the extent defense counsel made it so, as was their prerogative. The court would have been well within its realm of discretion in denying a motion for severance, and trial counsel was not incompetent for not making one. See the criteria for ineffective assistance of counsel in Williams v. Beto, 354 F.2d 698 (5th Cir. 1965), and MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960).

Ill

RODRIGUEZ

A. Rodriguez’s claim of insufficiency of the evidence is not quite so meritless as that of Garcia and Tamez. He admits carrying a firearm, but he contends that it was not during the commission of a felony: i. e., he asserts that he did not distribute, possess with intent to distribute, or conspire to distribute marijuana. We conclude that there was sufficient evidence for the jury to find that he did.

The prosecution’s evidence did not show that Rodriguez was in on the negotiations for the sale. It did, however, present a sufficiently incriminating outline of his subsequent role in the conspiracy. Rodriguez was picked up by Garcia as soon as he, Bonnie and Tamez left the Holiday Inn on their way to get the dope. When the foursome stopped along the way and Garcia took over driving the car and instructed Tamez to drive the pickup, he told Tamez that Rodriguez was familiar with the plan and could'show him where to stop. After the two vehicles reached Pharr and again pulled off the highway, Rodriguez climbed into the car with Garcia and left Bonnie and Tamez in the truck. When the car returned, Rodriguez and Garcia got out, and an unidentified party drove it away. When the car again appeared at the gas station, Garcia reported it loaded. Rodriguez traveled back to Harlingen with his fellow conspirators in one of the pickups. He was arrested in Harlingen in the red truck after it had been observed circling the Holiday Inn and its occupants had been seen in communication with those in the green truck. He claimed ownership of one of the pistols found in the truck, confirming Bonnie’s testimony that he was armed while in Pharr.

Rodriguez’s alibi completely contradicted Bonnie’s description of his involvement. According to his testimony, as corroborated by that of his wife Linda and his friend Noriega, he and his wife were driving around in Weslaco until past 11:00 p. m. He had never seen Bonnie Maldonado until after the arrest and knew nothing of any marijuana deal. His first contact with any of his co-defendants was around 11:15 a. m., following an argument with his wife, when he left her with his car in LaFeria and a red pickup driven by defendant Vega picked him up hitchhiking his way back to Harlingen. According to him, he knew nothing of any illegal activities in which his benefactors might have been involved and was arrested before he took his leave of them.

Obviously he hoped the jury would prefer his story to Bonnie’s. Just as obviously they did not. Their verdict was based on sufficient circumstantial evidence to sustain his conviction on all four counts. Contrary to his appellate argument, Bonnie’s testimony constituted a sufficient evidentiary basis for a finding that he constructively possessed the marijuana. As the court instructed the jury, and as we held in Garza v. United States, 385 F.2d 899 (5th Cir. 1967), possession may be either actual or constructive. Constructive possession exists when one has dominion and control over the drug. “Such possession need not be exclusive, but may be shared with others, and is susceptible of proof by circumstantial as well as direct evidence.” 385 F.2d at 901.

B. Rodriguez contends that he was denied a fair trial by his co-defendant’s “perjury” and “incredible” alibis. This contention is absolutely meritless. Their testimony before the jury did not implicate him. Any adverse reflection cast was mutual: Rodriguez’s own alibi was fully as suspect as that of his co-defendants. If his counsel feared a finding of guilt by association, he made no motion for severance. It is just as likely that he hoped the combined weight of the alibis would cause the jury to doubt Bonnie Maldonado’s story. That it did not is not surprising. That he raises this point on appeal is.

C. Rodriguez asks us to hold that he was entrapped as a matter of law. Again his argument has no merit whatsoever. In the first place, there is absolutely no evidence that Rodriguez was “induced” within the meaning of United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). Indeed, he did not waver from his alibi that he was an innocent hitchhiker who knew nothing about any marijuana transaction. Taking this stance, he would not have been allowed to claim entrapment at trial (which he did not), much less on appeal. See United States v. Newcomb, 488 F.2d 190 (5th Cir. 1974). Certainly the undercover tactics here employed were not “ . . . so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction. . . . ” Russell, 411 U.S. at 431, 93 S.Ct. at 1643, 36 L.Ed.2d at 373. See also our discussion in United States v. Register, 496 F.2d 1072 (5th Cir. 1974).

IV

VEGA

A. Like his co-defendants, Vega argues that the evidence was insufficient to support his conviction of distribution, possession with intent to distribute, conspiracy to distribute, and carrying a firearm during the commission of a felony. In his case, the circumstantial evidence was somewhat slim. There was no indication that Vega was involved in the negotiations with the undercover agent. In fact, Bonnie first learned that someone other than she, Garcia, Tamez, and Rodriguez was connected with the conspiracy when Garcia and Rodriguez were let out of Dave’s car on the highway. But later, when the car pulled into the gas station where the other defendants waited, she recognized Vega alone behind the wheel. When Vega got out of the car and into one of the pickups and she and Garcia got into the car, Garcia reported that the marijuana had been loaded. Back in Harlingen when Bonnie and Garcia pulled the loaded car into the Holiday Inn, Garcia called out to the two trucks as they passed to park across the street. The occupants of the red pickup were seen in communication with those of the green as both generally milled around the vicinity of the Holiday Inn awaiting Bonnie’s delivery of the dope and receipt of the money. When the customs officers stopped the red truck, Vega was behind the wheel with his brother-in-law, against whom charges were dismissed, and Rodriguez as passengers. Both Vega and Rodriguez were armed.

True to form, Vega, too, denied knowledge of any marijuana transaction, testified that he had never seen the undercover agent, Bonnie, or Garcia prior to his arrest, and presented an alibi which coincidentally placed him at the wrong place at the wrong time. He made no attempt to account for Bonnie’s seeing him drive Dave’s car. According to his story, he was at home in Pharr all night until his pregnant wife got sick, woke him at 11:00 p. m., and sent him in- his red pickup to Harlingen to bring her grandmother back. Taking his gun with him, he stopped by to get his brother-in-law to accompany him. On their way to Harlingen, at LaFeria, they picked up Rodriguez hitchhiking. When Vega stopped in Harlingen because his truck engine was misfiring, the three were arrested.

The jury was entitled to disbelieve this alibi. Doing so, all elements of the four offenses could properly be inferred from the government’s evidence against him. The jury could quite properly, and quite likely, have found that, when Vega drove the loaded car into the gas station in Pharr and turned it over to Garcia, he possessed the dope with intent to distribute, independent of his constructive possession as a member of the conspiracy. We have discussed Rodriguez’s similar argument above. This court has long held that, when there is no doubt that a conspiracy existed, only slight additional evidence is required to connect a defendant with it. Bradford v. United States, 413 F.2d 467 (5th Cir. 1969); Cohen v. United States, 363 F.2d 321 (5th Cir. 1966).

B. Vega’s assertion that he was entrapped as a matter of law is foreclosed by the same reasoning as is that of Rodriguez. He did not raise the defense below. He could not have, owing to his denial of involvement. And no outrageous conduct by government agents was shown. United States v. Newcomb, 488 F.2d 190 (5th Cir. 1974); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973).

C. Vega claims that the trial court erred in admitting into evidence the hearsay testimony of one customs agent that when he and a fellow officer arrested Vega and his companions, the fellow officer, who did not testify, handed him a pistol and told him that he had removed it from the person of Mr. Vega. It was error to admit this hearsay statement. Silence in the face of an accusation cannot, as the government seems to contend, be the basis for admitting evidence against one who has the constitutional right to remain silent. However, we find the error harmless in light of Vega’s later admission from the stand, when questioned by the judge, that an officer who did not testify got the pistol out of his belt when he arrested him. Such a question from the bench was permissible clarification of Vega’s own previous testimony that he took his pistol with him in the truck that night and his identification, under cross-examination by the prosecution, of one of the pistols which had been introduced into evidence as belonging to him.

V

SENTENCING

The only defendant who complains to us of events at sentencing is Rodriguez, but in investigating his complaint we have discovered error which so jeopardized substantial rights of the defendants that it must be treated as “plain error” under Rule 52(b), F.R. Crim.P.

In Thomas v. United States, 368 F.2d 941 (5th Cir. 1966), we held it a clear abuse of discretion for the sentencing judge to threaten the man before him with a more severe sentence if he did not “come clean” and admit his guilt. As we explained, the defendant retains important Fifth Amendment rights after the jury reaches a verdict, rights which must not be made the price of sentencing leniency. The court cannot place the defendant in the dilemma of either abandoning his Fifth Amendment rights or risking a harsher sentence. This was precisely the situation in which the trial judge placed Garcia, Tamez, Rodriguez, and Vega when they appeared before him for sentencing.

When the judge addressed each defendant, he emphasized that his primary concern was that the individual tell him “the truth” about his involvement in the crime. The court was unambiguous in its message: “I want people to tell me the truth, see. When they don’t tell me the truth, I have no compassion on them.” There was similarly no chance of mistaking what the judge considered to be the truth. After listening to the interchange between the court and his co-defendants, Garcia admitted his participation in the conspiracy, but to a lesser degree than indicated by prosecu-. tion witnesses at trial, whereupon the court sympathetically stated, “Well, at least this boy is telling me the truth.”

As Rodriguez points out, he was the object of the heaviest pressure to confess. After Garcia set the example, the court redirected its attention to Rodriguez:

THE COURT: ... The one I really feel sorry for is you, Rodriguez, but you don’t want to tell me the truth.
DEFENDANT RODRIGUEZ: I owe everything I have, sir.
THE COURT: I’m not talking about owning things or owing. I’m talking about this case. This case here. You were involved in it or not? That is all I want to know? You were not involved in it?
DEFENDANT RODRIGUEZ: I wasn’t.
THE COURT: All right, Well, I don’t believe you.
DEFENDANT RODRIGUEZ: Yes, sir. Plead for mercy then, sir.

The court then turned to Vega, who had also refused to confess, and sentenced him to three concurrent five-year terms in prison. This prompted Rodriguez to make one last attempt, short of admitting guilt, to placate the court. The court’s response: “I don’t like for people to make a fool out of me,” and, “I just hate to have people to think they can get by with things and lie to the court” — followed by a sentence of three years in prison on each count to run concurrently.

At this point, defendant Tamez felt moved to make a qualified confession, whereupon he was sentenced under the Youth Corrections Act, pursuant to Section 5010(b), Title 18, United' States Code.

Finally, Garcia was sentenced to concurrent five-year terms, with all but six months suspended.

This pattern of sentencing, coupled with the heavy pressure, raises the possibility that the court took into consideration in sentencing Rodriguez’s and Vega’s refusals to confess. We emphasize that this is only a possibility. The record also reflects that the judge was privy to information in the presentence report which may have indicated that more severe sentences were called for in théir cases. If this be so, and if such relevant information was the sole reason for the disparities, then lesser sentences may not be indicated.

We, therefore, vacate the sentences imposed on Rodriguez and Vega, thus affording the district court an opportunity to re-sentence them in accordance with this opinion. Because it clearly appears that Garcia and Tamez were not penalized, since each confessed, but were, if anything, rewarded for doing so, we do not vacate their sentences. It need scarcely be said that we have not considered their “confessions” in passing on their appeals, exacted, as they were, at the price of Fifth Amendment rights and dubious of belief in fact —in the circumstances presented, even an innocent man might have “confessed.”

VI

CONCLUSION

Our decision in this case has been considerably delayed by a cursory and thoroughly inadequate Appellee’s Brief, which was of virtually no assistance in evaluating appellants’ points of error.

Recognizing, as we do, the difficulties under which the typical United States Attorney’s office labors, we nevertheless can only deplore the waste of slim judicial resources and the unnecessary delay which has ensued before we could with assurance, as we finally do, conclude that the convictions of all four appellants must be affirmed on all counts, but that the sentences imposed on Vega and Rodriguez must be vacated.

Affirmed in part, vacated and remanded in part.

      . The court instructed the jury as follows:
      Now Bonnie Maldonado was a defendant together with these four defendants here. She has pled guilty. I think she pled guilty on February 1st or the 2nd. I don’t remember exactly when. And I set her sentencing here — put her in jail and I set her sentencing here for March 12th. I haven’t sentenced her. I ordered a presentence report on her. I am going to sentence her.
      Now the government is replying very heavily on the testimony of Bonnie Maldonado, also known as Charlene S. Patios, and also known as Bumpie or Buffie, something like that.
      In connection with her testimony I charge you that Bonnie Maldonado is an admitted felon because she has been convicted before, and that she is under the law an accomplice. The government charges her with participating in this same case that these people are charged in participating. She is an accomplice under the law. She was named in the indictment as a conspirator. She gave evidence here, she has pled guilty.
      But I want to charge you that an accomplice does not become incompetent as a witness because she participated in the crime charged. On the contrary, the testimony of such person alone, testimony of Bonnie Maldonado alone, if believed by you, may be of sufficient weight to sustain a verdict of guilty even though it may not be corroborated or supported by other evidence.
      The government tells us in this case that her testimony is corroborated by agents of the government who came here and testified. But her evidence alone, if believed by you, would be sufficient to convict if by her testimony the government has proved every essential element of the crimes charged here against these four defendants.
      However, you should keep in mind, and I instruct you, that the testimony of an accomplice and admitted felon such as Bonnie Maldonado has to be received by you with caution and weighed with care.
      The defendants tell us you can’t believe Bonnie Maldonado, she is an accomplice, she is a felon, previously convicted. And the government tells us her testimony has been corroborated by testimony of other people, other agents, and you ought to believe them. That is up to you.

      . At one point the trial judge said:
      Now intent to distribute was put in there because what the government was after • was these people that are making marijuana available to others.
      Further along he stated :
      And then at 9:00 o’clock agent Murray tells us Rolando Garcia and this boy Tamez, Castillo Tamez, appears in his room, and they want to know if he has the money, and that he had a flash roll — and the government does make money available, Congress appropriates money not only to pay informants but they appropriate money for these people to use as flash rolls to act as purchasers because Congress feels that it is the only way they are going to get a lot of these peddlers.

      . Contrary to Rodriguez’s contention, the court was not required to disclose to him the contents of the presentence report. See Rule 32(e)(2), U.R.Crim.P.; United States v. Arenas-Granada, 487 F.2d 858 (5th Cir. 1973), and cases cited therein.


author: TUTTLE, Circuit Judge:

text:
    RESPONSE OF CAROLINA, Plaintiff-Appellee, v. LEASCO RESPONSE, INCORPORATED et al., Defendants-Appellants. RESPONSE OF CAROLINA, INC., Plaintiff-Appellee, v. LEASCO RESPONSE, INCORPORATED et al., Defendants-Appellants. DATATRON CORPORATION, d/b/a Response of Louisville, PlaintiffsAppellees, v. LEASCO RESPONSE, INCORPORATED et al., Defendants-Appellants.
    Nos. 73-3362, 73-4008, 73-4009.
    United States Court of Appeals, Fifth Circuit.
    July 31, 1974.
    Rehearing and Rehearing En Banc Denied Oct. 8, 1974.

      John R. Kelso, Harold L. Ward, Miami, Fla., Morton L. Ginsberg, New York City, for defendants-appellants.
    Joseph W. Womack, J. Kirk Wood, Miami, Fla., for plaintiffs-appellees.
    Before TUTTLE, COLEMAN and AINSWORTH, Circuit Judges.
   TUTTLE, Circuit Judge:

Appellant-defendant, Leasco Response, Inc. (Leasco), appeals the issuance of preliminary injunctions in these consolidated cases by the district court as requested by appellees-plaintiffs, Response of Carolina (Carolina) and Datatron Corporation (Datatron). The injunctions grew out of anti-trust actions filed by Carolina and Datatron against Leas-co.

FACTS

Carolina, a North Carolina corporation, and Datatron, a Kentucky corporation, entered into contracts with Leasco, one consisting of a franchise agreement involving certain computer programing (software) and the other a computer equipment lease (hardware). The franchise agreement committed Carolina and Datatron to pay to Leasco a franchise fee and royalty payments equal to 15% of their gross receipts. The equipment lease provided for a monthly rental charge with additional maintenance costs. Carolina ceased, on approximately April, 1972, and Datatron on approximately July, 1973, making rental and royalty payments to Leasco. Shortly after each franchisee terminated contractual payments, they filed the instant suits against Leasco alleging violations of the Sherman and Clayton Acts and certain state laws. One anti-trust allegation charges an illegal territorial restraint in the form of a contract provision requiring a 70% royalty on sales made by the franchisee outside of its primary area of responsibility. The second contends that Leasco discriminates against Carolina and Datatron, as franchisees, in favor of Leasco’s company-owned computer centers (preferential dealings).

On the day prior to Carolina’s filing its action, Leasco brought suit on the contractual agreements in the state courts of North Carolina seeking the unpaid royalties and rentals and the recovery of possession of the leased computer equipment. Carolina maintains that the contracts are void under the federal anti-trust laws and, therefore, unenforceable. The Antitrust laws vest exclusive anti-trust jurisdiction in the federal courts, 15 U.S.C.A. § 4. For that reason, a defense based on federal antitrust law cannot be litigated in the state court action filed by Leasco. As part of its relief in the anti-trust action, therefore, Carolina sought a preliminary injunction against Leasco from prosecuting further the state court suit, alleging that its successful effect would be to end Carolina’s business.

As part of its relief, Datatron also sought an injunction to block any actions by Leasco which would result in the termination of its business. No suits were pending by Leasco against Datatron at the time of the hearing on the preliminary injunction.

The district court agreed with Carolina and Datatron, and issued the requested injunctions. In Carolina’s suit, the court prohibited Leasco from prosecuting the state court action and interfering with the ordinary course of Carolina’s business. In Datatron’s suit, the court enjoined Leasco from failing to perform any act under the contracts and from removing any equipment from Datatron’s possession.

Leasco appeals from the issuance of these preliminary injunctions.

In sum, Leasco challenges the injunctions on the grounds that enjoining the state court action in the Carolina suit and apparently prohibiting the institution of any state court action in the Datatron suit (1) have no legal basis under anti-trust law, specifically, 15 U.S. C.A. § 26, and are not valid under the legal standards governing the granting of preliminary injunctions; and (2) are prohibited by the anti-injunction statute, 28 U.S.C.A. § 2283.

15 U.S.C.A. § 26 AND PRELIMINARY INJUNCTIONS

Injunctive relief is provided as a remedy by law in anti-trust suits, 15 U.S.C. A. § 26. This provision states :

“Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws, including sections 13, 14, 18, and 19 of this title, when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss of damage is granted by courts of equity, under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunction improvidently granted and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue.”

The above statutory provision also incorporates the standards for issuing a preliminary injunction established by equity. These were set out by this Court in Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 572-573 (5th Cir. 1974):

“. . . It [the district court] must exercise that discretion in light of what we have termed ‘the four prerequisites for the extraordinary relief of preliminary injunction.’ Allison v. Froehlke, 5 Cir. 1972, 470 F.2d 1123, 1126. The four prerequisites are as follows: (1) a substantial likelihood that plaintiff will prevail on the merits, (2) a substantial threat that plaintiff will suffer irreparable injury if the injunction is not granted, (3) that the threatened injury to plaintiff outweighs the threatened harm the injunction may do to defendant, and (4) that granting the preliminary injunction will not disserve the public interest. DiGiorgio v. Causey, 5 Cir. 1973, 488 F.2d 527; Blackshear Residents Organization v. Romney, 5 Cir. 1973, 472 F.2d 1197.”

Measured under these principles and the case law and implications flowing from the Supreme Court’s decision in Bruce’s Juices v. American Can Co., 330 U.S. 743, 67 S.Ct. 1015, 91 L.Ed. 1219 (1947), and Kelly v. Kosuga, 358 U.S. 516, 79 S.Ct. 429, 3 L.Ed.2d 475 (1959), we find that the district court’s injunctions cannot stand, because there was no irreparable loss or damage caused by a violation of the federal anti-trust law.

The appellees’ position, in which the district court concurred, is that the franchising and leasing agreements violate the anti-trust law and are invalid. Since Leasco is suing on these contracts in state court where there is no jurisdiction to grant the relief mandated by the anti-trust law, the district court enjoined the pending state court proceeding against Carolina and the institution of a state court suit against Datatron, because irreparable injury would be accomplished by effectively terminating Carolina’s and Datatron’s businesses. There is, however, an erroneous assumption in appellees’ and the district court’s syllogism. The Supreme Court postulated in Bruce’s Juices and Kelly, and lower courts developed the rule, that the anti-trust laws on the theory asserted by appellees, void for illegality, provide no defense for actions under state law for collection of debts for sale of goods and services.

In Bruce’s Juices, a suit filed in state court, the issue squarely presented to the Supreme Court was whether “notes representing the purchase price of goods sold and delivered are uncollectible if it is found that the vendor violated the Robinson-Patman Act.” 330 U.S. at 744, 67 S.Ct. at 1015. The Supreme Court assumed that the anti-trust violations were established and held that Congress had not meant to provide the additional remedy requested of allowing “a buyer to get his goods for nothing because the seller violated the Act. . . .” 330 U.S. at 752, 67 S.Ct. at 1019. Likewise, in Kelly a similar effort to assert an anti-trust defense to a suit filed in federal court for debt on goods sold and delivered was attempted; the Supreme Court reaffirmed the Bruce’s Juices holding:

“As a defense to an action based on contract, the plea of illegality based on violation of the Sherman Act has not met with much favor in this Court.
* * *■ * # *
“In any event, an analysis of the narrow scope in which the defense is allowed in respect of the Sherman Act indicates that the principle of distinction is not what the petitioner claims it to be. The leading case here in which the defense was allowed is Continental Wallpaper Co. v. Lewis Voight & Sons Co., 212 U.S. 227, [29 S.Ct. 280] [53 L.Ed. 486,] much relied on by petitioner. There the Voight Company had made purchases from Continental, a corporation which existed only as a selling agent for numerous wallpaper companies doing business in a pool and selling at prices, alleged to be excessive and unreasonable, fixed through the pool agreement. The Court was of opinion that to give judgment for the excessive purchase price so fixed in favor of such a vendor would be to make the courts a party to the carrying out of one of the very restraints forbidden by the Sherman Act. 212 U.S. at 261, [29 S.Ct. 280]. . . . Past the point where the judgment of the Court would itself be enforcing this precise conduct made unlawful by the Act, the courts are to be guided by the overriding general policy, as Mr. Justice Holmes put it, ‘of preventing people from getting other people’s property for nothing when they purport to be buying it.’ Continental Wallpaper v. Lewis Voight & Sons Co., supra, at 271 [29 S.Ct. 280.] (dissenting opinion). Supplying a sanction for the violation of the Act, not in terms provided and capricious in its operation, cf. Bruce’s Juices, Inc. v. American Can Co., supra, [330 U.S.] at 753-754, [67 S.Ct. 1015], is avoided by treating the defense as so confined.” 358 U.S. at 518, 520-521, 79 S.Ct. at 431, 432.

Both Bruce’s Juices and Kelly carve out an exception under Continental Wallpaper Co. v. Lewis Voight & Sons Co., 212 U.S. 227, 29 S.Ct. 280, 53 L.Ed. 486 (1909), that when the conduct actually prohibited by the antitrust act is sought to be enforced in a state court action, the anti-trust defense is a valid block. In sum, where recovery in the state court proceeding (or a federal court proceeding) is premised on an obligation collateral to but independent of the agreement which violates the anti-trust law and where it is not necessary for the state court in granting relief to depend on or enforce the agreement violative of the anti-trust provisions, there is no illegality to bar the state suit.

Having discovered that appellees’ theory cannot provide a defense to the state court action, unless the Voight exception is met, the question next becomes whether a preliminary injunction can issue under this theory of illegality. We think not. Helfenbein v. International Industries, Inc., 438 F.2d 1068 (8th Cir. 1971); Red Rock Cola Co. v. Red Rock Bottlers, 195 F.2d 406 (5th Cir. 1952). But cf. Milsen Co. v. Southland Corp., supra, 454 F.2d 363. If the contract provisions sued on in the state court do not embody or further the anti-competitive practices, then there has been no irreparable loss or damage from a violation of the anti-trust law.

The Helfenbein case involves facts very similar to the present situation. There was a franchise agreement between the parties which provided for the subleasing of restaurants and equipment, just as here Leasco is leasing computer and related equipment to Carolina and Datatron. Upon default by the franchisees, the franchisor commenced eviction proceedings in state court. The franchisees then, just as in this ease, filed anti-trust suits under the Sherman and Clayton Acts in .federal court against the franchisor (alleging illegal tying agreements) and sought a preliminary injunction from the federal court staying the state court eviction actions. Relying on Bruce’s Juices and Kelly, the court found no loss or damage by a violation of the anti-trust laws as required by 15 U.S.C.A. § 26 and affirmed the denial of the injunctive relief.

There are two important reasons for narrowly construing, as the court did in Helfenbein, the plea of illegality under the anti-trust laws. First, as stressed heavily by the Supreme Court in Bruce’s Juices and Kelly, the availability of such a defense allows contracting parties the benefits of a contract without having to tender consideration. In this case, Carolina and Datatron have accepted from Leasco the use of their computer hardware, their computer software, and their reputation and expertise, without payment. “The Court has refrained from extending judicial sanction to the avoidance of private contracts where to do so is unnecessary. See Bruce’s Juices, Inc. v. American Can Co., 330 U.S. 743, 751-757, 67 S.Ct. 1015, 91 L.Ed. 1219 (1947); D. R. Wilder Manufacturing Co. v. Corn Products Refining Co., 236 U.S. 165, 35 S.Ct. 398, 59 L.Ed. 520 (1915); Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 S.Ct. 431, 46 L.Ed. 679 (1902).” Dickstein v. DuPont, supra, 443 F.2d at 786.

Second, the policy expressed in Bruce’s Juices and applied in Kelly denoted that the. enumerated statutory remedies in the anti-trust law do not provide for or require such a broad anti-trust defense to contract actions. To allow the appellees to obtain free goods and services from Leasco as a compensatory measure in the state court and, additionally, to award triple damages in the federal anti-trust suit would exceed the redress established by the anti-trust statute. 330 U.S. at 756-757, 67 S.Ct. 1015.

Nor can the injunctions be upheld under the Voight exception. The substantial amounts owed Leasco by appellees are not argued to be monies due from appellees under the 70% clause for selling outside their territories of primary responsibility (territorial restraint) , rather the record reflects that appellees terminated all payments. Neither the rentals on the leased computer hardware nor the maintenance costs nor the unchallenged 15% royalties were paid. The appellees contend that to dissolve the injunctions would allow Leasco to put them out of business. We note, however, that this situation is not one of a franchisor terminating a franchisee because of its failure to comply with the practices violative of the anti-trust law, nor that the alleged anti-trust violation so permeated the franchise agreement that to uphold any of its' provisions would be to countenance and enforce an anti-trust violation. Finally, the dictates of Bruce’s Juices and Kelly were applied in Helfenbein even though it was clear that the effect there was to terminate the franchisee’s business.

In addition, the principles of comity and federalism recognized by this Court in Red Rock Cola Co. v. Red Rock Bottlers, supra, 195 F.2d 406, and affirmed in American Radio Association v. Mobile Steamship Association, Inc., 483 F.2d 1, 6-7 (5th Cir. 1973), mitigate against unnecessarily interfering with pending state court proceedings. Red Rock involved a question similar to the issue in this case, whether an injunction could issue under the anti-trust laws to enjoin a state court suit. This Court reversed the issuance of the preliminary injunctions on the grounds of federalism and comity.

We conclude, therefore, that the judgment granting the preliminary injunctions must be set aside.

The judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

      . See section 1 of the Sherman Act, 15 TJ.S. C.A. § 1:
      “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.”

      . The pertinent part of the injunction reads:
      “The Defendant, Leasco Response, Inc., it’s retainers, attorneys, officers, agents, servants, employees and all others in active concert or participation with said Defendant, to whom notice of this order shall come by personal service or otherwise, be and they are each enjoined and restrained until further order of the Court from:
      A) Further prosecuting or calling on for hearing, any motion or other application in Cause No. 73-CVS 8500 styled :
      Leasco Response, Inc.
      vs.
      Response of the Carolinas Inc., et al
      now pending in the Superior Court of Mecklenburg County, North Carolina, which motion or prosecutorial application has as its object either the securing of a money judgment by Leasco against Response or the repossession of computer hardware, attachments, parts, or components which are by their nature essential to the continuing operation of Plaintiff’s business.
      b) Doing any act or thing the effect or probable fruition of which will disturb the status quo of the described State Court litigation in Mecklenburg County pending further order of this Court or any transferee court.
      c) Disconnecting, interrupting or otherwise rendering inoperative, interstate telephone trunks, lines, cables or other links between Plaintiff’s business and Leasco’s computers at Bethesda, Maryland or elsewhere.
      d) Threatening, intimidating, obstructing, or in anywise interfering with the officers, agents, and employees of the Plaintiff, Response of Carolina, Inc. in the ordinary and customary course of its business activities.
      e) Enticing, threatening or intimidating Plaintiff’s customers in any way. The Court intends that Leasco and those acting for it refrain from further soliciting Plaintiff’s customers away, from telephoning, writing or otherwise contacting the Plaintiff’s present customers in pursuit of any objective to encourage said customers not to do business with the Plaintiff for whatever reason, and from calling or writing Plaintiff’s customers advising them that the Plaintiff will go out of business or cease operations on a date certain, or other like conduct.”

      . The pertinent part of the injunction reads:
      “The Defendant, LEASCO RESPONSE, INC., its retainers, attorneys, officers, agents, servants, employees and all others in concert or participation with said Defendant to whom notice of this order shall come by personal service or otherwise, be and they are each enjoined and restrained until further order of the Court from :
      1. Failing or refusing to perform or do any act, deed or thing under any contract or obligation between it and the Plaintiff.
      2. Removing any equipment, components or parts (hardware) from the Plaintiff’s possession, control, custody or property.
      3. From harassment, interruption, or interferring with Plaintiff, its employees or business operations in any way. The Court also intends that no such acts be done by the Plaintiff toward the Defendant.
      4. From refusing within five (5) days to deliver the two drives (described by the witnesses at the hearing) upstairs to the Plaintiff’s equipment room. In this connection and in keeping with the Defendant’s request, Plaintiff may if it desires cause the drives to be moved from storage to the described location, the Defendant to bear the costs of same.
      5. From failing or refusing to properly disconnect the computers components and parts (hardware) now in the possession of the Plaintiff, preparatory to the Plaintiff’s move to new premises; such move now contemplated to take place on or about December 1,1973.

        6. From failing or refusing to properly connect and render operational the computers, parts components (hardware) after the Plaintiff has moved to its ‘new’ premises or quarters.
      7. From refusing to deal with the Plaintiff or do other business pending the conclusion of the above styled litigation.”

      . Of course, the injunction in the Datatron suit would not trample on the dictates of section 2283 against enjoining state proceedings. The Supreme Court explained in Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), that section 2283, is not a bar to a federal injunction preventing the institution of state court proceedings, but only prohibits stays of pending suits. See Barancik v. Investors Funding Corp., 489 F.2d 933 (7th Cir. 1973).

      . Denison Mines, Ltd. v. Michigan Chemical Corp., 469 F.2d 1301, 1309 (7th Cir. 1972); El Salto, S.A. v. P.S.G. Co., 444 F.2d 477, 482—483 (9th Cir.), cert. denied, 404 U.S. 940, 92 S.Ct. 273, 30 L.Ed.2d 253 (1971); Dickstein v. DuPont, 443 F.2d 783, 785-787 (1st Cir. 1971); Sunshine Packers, Inc. v. American Can Co., 395 F.2d 86 (5th Cir. 1968); Lewis v. Seanor Coal Co., 382 F.2d 437, 441 (3rd Cir. 1967), cert. denied, 390 U.S. 947, 88 S.Ct. 1035, 19 L.Ed.2d 1137 (1968).

      . 330 U.S. at 754-755, 67 S.Ct. 1015.

      . 358 U.S. at 520-521, 79 S.Ct. 429.

      . See Milsen Co. v. Southland Corp., 454 F.2d 363 (7th Cir. 1971); Sunshine Packers, Inc. v. American Can Co., supra, 395 F.2d 86; Farbenfabriken Bayer, A. G. v. Sterling Drug Co., 307 F.2d 207, 208-210 (3rd Cir. 1962).

      . The franchise agreement expressly provided for severability of any clause held to be invalid. Superior Bedding Co. v. Serta Associates, Inc., 353 F.Supp. 1143 (N.D.Ill.1972). In Kelly, the Supreme Court found that the provision in the commodity sales contract, where the buyer and seller illegally agreed not to sell on the future’s market, was separable from the contractual promise to pay for the commodities. 358 U.S. at 516-517, 521, 79 S.Ct. 429. Cf. Lewis v. Seanor Coal Co., supra, 382 F.2d 437.

      . The difference between prohibiting this defense as a total block to a state court suit as in Bruce’s Juices, and, in this case, enjoining the state proceedings until the end of the federal action, is not sufficient to distinguish this situation. The injunction here was issued on the basis and reasoning which was rejected in Bruce’s Juices and Kelly.

      . In other words, for any damage inflicted by Leasco on Carolina and Datatron which terminates their businesses, which Carolina and Datatron can demonstrate violates the anti-trust law, triple damages can be claimed in the anti-trust suit.

      . Approximately $86,000 is owed by Data-tron and $267,406 by Carolina.

      . The record reveals that, at least from Datatron, Leasco never received the 70% of the sales receipts for business outside appellees primary area of responsibility. The record does not indicate whether in the state suit against Carolina, Leasco is claiming this 70%. In any event, we note that the Supreme Court in Bruce’s Juices refused the illegality defense even though part of the money sought by the seller represented an illegal differential in the price of the goods. See Helfenbein v. International Industries, Inc., supra, 438 F.2d at 1071.

      . Sahm v. V-1 Oil Co., 402 F.2d 69 (10th Cir. 1968); Broussard v. Socony Mobil Oil Co., 350 F.2d 346 (5th Cir. 1965); Bergen Drug Co., Inc. v. Parke, Davis & Co., 307 F.2d 725 (3rd Cir. 1962); Bateman v. Ford Motor Co., 302 F.2d 63 (3rd Cir. 1962).

      . See Milsen Co. v. Southland Corp., supra, 454 F.2d 363.

      . The decision in Mitchum v. Foster, 407 U.S. 225, 243, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), indicated that the restraints of federalism and comity were still present even if an injunction fell within an exception to 28 U.S.C.A. § 2283. See note 16, infra.

      . Having determined that the injunctions are invalid under 15 U.S.C.A. § 26 and the principles governing the granting of injunctions, there is no necessity to reach the question of whether the anti-trust laws constitute an exception to the anti-injunction statute, 28 U.S.C.A. § 2283. Carolina had contended that the enjoining of the state court in North Carolina fell within the exception language in 28 U.S.C.A. § 2283, either as “necessary in aid of jurisdiction,” Atlantic C. L. R. Co. v. Engineers, 398 U.S. 281, 294-296, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970), or as “expressly authorized by Act of Congress,” Mitchum v. Foster, supra, 407 U.S. at 228, 92 S.Ct. at 2154; Jennings v. Boenning & Co., 482 F.2d 1128 (3rd Cir. 1970), cert. denied, 414 U.S. 1025, 94 S.Ct. 450, 38 L.Ed.2d 316 (1973).