author: PER CURIAM.

text:
    Ronald Joseph JACKSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-1265.
    United States Court of Appeals, First Circuit.
    Heard Dec. 5, 1973.
    Decided Jan. 2, 1974.
    Anthony J. Turco, Boston, Mass., by appointment of the Court, for appellant.
    Alan R. Hoffman, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   PER CURIAM.

The appellant was indicted in the Southern District of California on June 19, 1967 on two counts of interstate transportation of a forged security, 18 U.S.C. § 2314. He appeared before that court and was released on personal recognizance. He then failed to appear on the date set and was indicted for this -failure under 18 U.S.C. § 3150. In August, 1967, he was arrested by federal authorities in Massachusetts. At a hearing before the district court for bail reduction he indicated that he wanted to proceed under Rule 20 Fed.R.Crim.P. and plead guilty to the California charges. Appellant, the Assistant U. S. Attorney for the District of Massachusetts, and the district judge signed the Rule 20 consent to transfer forms. The court telephoned the Assistant U. S. Attorney for the Central District of California and received his oral consent to the transfer proceedings. The court then accepted the defendant’s guilty pleas and sentenced him to the maximum term for each count, the sentences to run concurrently. This conviction was affirmed.

Appellant recently moved to vacate sentence on the grounds that an unfulfilled plea bargain rendered his plea involuntary. He was represented by counsel in a hearing before a magistrate who found that there had been no promises made. In addition, the magistrate himself raised the question whether the district court had jurisdiction to accept the pleas since Rule 20 requires the written approval of the U. S. Attorney for the district in which the indictment was pending and no such written consent had been given by the California authorities. The magistrate concluded that failure to comply with Rule 20 did not deprive the district court of jurisdiction. Before the district court approved this report, Jackson filed another motion to vacate judgments of conviction and set aside sentence because of non-compliance with Rule 20 and the failure of the court to question the defendant before accepting the guilty pleas under Rule 11 Fed. R.Crim.P. The magistrate recommended that this motion be denied as well; the district court approved both of the magistrate’s recommendations. This appeal followed.

The appellant contends that Rule 20 is a jurisdictional rule and that any technical non-compliance deprives a court in a district where the crime did not occur of jurisdiction. We reject this argument. Rule 20 is a venue-waiving provision. Hilderbrand v. United States, 304 F.2d 716 (10th Cir. 1962); Earnest v. United States, 198 F.2d 561 (6th Cir. 1952); United States v. Gallagher, 183 F.2d 342 (3rd Cir. 1950), cert. den., 340 U.S. 913, 71 S.Ct. 283, 95 L.Ed. 659 (1951); Levine v. United States, 182 F.2d 556 (8th Cir. 1950), cert. den., 340 U.S. 921, 71 S.Ct. 352, 95 L.Ed. 665 (1951). The right of the defendant to trial in the district where the offense was committed may be waived by the defendant under Rule 20 by his written consent to disposition of the case in the district in which he has been arrested. In this case the defendant signed the requisite forms and pleaded guilty, thereby waiving any right to challenge the impropriety of venue. See Bistram v. United States, 253 F.2d 610 (8th Cir. 1958).

The Rule 11 challenge presents a more difficult problem. It is admitted that the district court did not comply with the requirements of that Rule. Had this proceeding taken place after the decision in United States v. McCarthy, 394 U.S, 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) such a failure would automatically mandate vacation of sentence and the opportunity to plead anew. However, the Court has refused to apply this rule retroactively, Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969) reh. den. 395 U.S. 971, 89 S.Ct. 2106, 23 L.Ed.2d 761 (1969). The appellant contends that a special treatment ought to be given to those cases which arose after the 1966 amendment of Rule 11 which made clear the duty of the district court, and that these cases ought to be dealt with under the uniform approach. We cannot agree. The Court could have adopted such a rule but refused to do so. See Halliday at 834, 89 S.Ct. 1498 (Harlan, J. concurring).

The rule that applies to those cases pleaded prior to the McCarthy ruling requires examination in each ease to assure the plea entered was voluntary. Halliday at 833, 89 S.Ct. 1498; Manley v. United States, 432 F.2d 1241 (2d Cir. 1970); Durant v. United States, 410 F. 2d 689 (1st Cir. 1969). Appellant has had such a hearing on his claim that there were bargains made and not fulfilled. But he now contends that he was not informed of, and did not know the maximum sentences which could be imposed if he pleaded guilty. This knowledge goes to the voluntariness of a plea. Counsel for the government, with commendable candor, acknowledges this to be so. The case must be remanded for a hearing on whether the appellant was advised of or was aware of the maximum sentence that could be imposed. If the government, having the burden of proof, Durant at 693, cannot show that appellant was so informed or aware, he must be given the opportunity to plead anew.

Remanded for proceedings consistent with this opinion.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert James SHIPPEE, Defendant-Appellant.
    No. 73-2687.
    United States Court of Appeals, Fifth Circuit.
    Feb. 19, 1974.

      M. C. Mykel, Atlanta, Ga., for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., Stanley M. Baum, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before TUTTLE, GEWIN and RO-NEY, Circuit Judges.
   PER CURIAM:

Robert James Shippee appeals from a judgment of conviction entered by the trial court following his bench trial for refusing induction into the armed services in violation of 50 U.S.C. App. § 462. By its judgment, the district court found that Shippee had not presented a prima facie case of conscientious objector status to his local Selective Service Board. After a careful review of the documents which Shippee presented to his local board as a basis for conscientious objector status and all the surrounding facts elicited in the trial below, we believe the district court was completely correct and thus affirm.

Appellant presents two contentions which he alleges require reversal. First, Shippee asserts that he was prejudiced by the local board’s failure to enunciate the underlying reasons for denying his application or to notify him that he had not made out a prima facie case. Secondly, it is contended that he was denied procedural fairness by the inclusion of a summary of the local board’s hearing in his file which was sent to the Appeal Board.

We find no merit in either of these contentions. Shippee failed to establish a prima facie case before the board and it is apparent that he was not prejudiced by the board’s silence. Secondly, appellant admitted at trial that the summary included in his file was correct and adequately reflected the proceedings conducted at the local board’s hearing. It is thus apparent that he suffered no harm by its inclusion.

Accordingly, the judgment of conviction is affirmed.

      . See United States v. Stetter, 445 F.2d 472, 477 (5th Cir. 1971).


text:
    Reynalda CASTILLO-GALLEGOS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
    No. 73-2189
    Summary Calendar.

    United States Coxcrt of Appeals, Fifth Circuit.
    Feb. 15, 1974.

      Albert Armendariz, Sr., El Paso, Tex., for petitioner.
    Elliot L. Richardson, Atty. Gen., U. S. Dept, of Justice, Washington, D. C., William S. Sessions, U. S. Atty., San Antonio, Tex., William E. Weinert, El Paso, Tex., Troy A. Adams, Jr., Dist. Director, Immigration and Naturalization, New Orleans, La., Ralph E. Harris, Asst. U. S. Atty., El Paso, Tex., for respondent.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

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

   PER CURIAM:

The petitioner, a female native and citizen of Mexico, was admitted to the United States for permanent residence as a special immigrant on December 4, 1967, as exempt from statutory labor certification requirements as the purported wife of a resident alien of the United States.

A Special Inquiry Officer and the Board of Immigration Appeals found that petitioner was not, at the time of her entry, the spouse of a resident alien, and was deportable as being excludable because she lacked the required labor certification under Sections 241(a)(1) and 212(a) (14) of the Immigration and Naturalization Act, 8 U.S.C.A. §§ 1251(a)(1), 1182(a) (14).

A review of the entire record discloses that petitioner’s deportability was established by clear and convincing evidence and that the record is free from prejudicial error. The Petition for Review is

Dismissed.


text:
    ESCO CORPORATION, Appellee, v. The TRU-ROL COMPANY, INC., Appellant. ESCO CORPORATION, Appellant, v. The TRU-ROL COMPANY, INC., Appellee.
    Nos. 73-1836, 73-1837.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 9, 1973.
    Decided Jan. 2, 1974.
    Jerome F. Fallon, Chicago, 111. (Benjamin C. Howard, and Miles & Stock-bridge, Baltimore, Md., on brief), for Esco Corp.
    Patrick J. B. Donnelly, Baltimore, Md. (H. Gregory Skidmore, Niles, Barton & Wilmer, Baltimore, Md., George H. Spencer, and Spencer & Kaye, Washington, D.C., on brief), for The Tru-Rol Co., Inc.
    Before CRAVEN, BUTZNER and RUSSELL, Circuit Judges.
   PER CURIAM:

Esco Corporation sued the Tru-Rol Company for infringement of U.S. Patent No. 2,919,506 covering a type of excavating teeth used on heavy machinery. The district court found that claims 1, 3, 8, 15, 20, 21 and 28 of the patent were valid and infringed. The court granted an injunction prohibiting Tru-Rol from further infringement and awarded actual damages, costs, and reasonable attorney’s fees to Esco. The court, however, denied treble damages and certain additional costs, and Esco appeals from that part of the judgment. Tru-Rol, in turn, appeals from the award of attorney’s fees. Finding no error, we affirm for reasons adequately stated by the district court.


author: MARIS, Circuit Judge.

text:
    Valerie LEWIS, by her next of kin, Mrs. Olive Lewis v. Ruth THOMAS, Principal, Charlotte Amalie High School, et al., Appellants.
    No. 73-1023.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 7, 1973.
    Decided Dec. 26, 1973.
    Curtis E. Tatar, Deputy Asst. Atty. Gen., Dept, of Law, Charlotte Amalie, St. Thomas, V. I., for appellants.
    Ronald T. Mitchell, Mitchell & Hunter, Charlotte Amalie, St. Thomas, V. I., for appellee.
    Before MARIS, GIBBONS and WEIS, Circuit Judges.
   OPINION OF THE COURT

MARIS, Circuit Judge.

This is an appeal by the defendants from an order of the district court granting a permanent injunction restraining the defendants from interfering with the attendance of the plaintiff in the 12th grade class at Charlotte Amalie High School during the school year 1971-1972 and ordering the defendants to expunge from their records all reference to the dismissal of the plaintiff and the failing grades given to her for the last semester of the school year 1970-1971.

It appears that pursuant to the injunction the plaintiff was permitted to complete the 12th grade and that she graduated from the high school in June 1972, prior to the taking of the appeal. The appeal is, therefore, moot and must be dismissed on that ground. While the dismissal of the defendants’ appeal will allow the order of the district court to stand we note that under the law of the Virgin Islands, as set out in the Restatement of Judgments, § 69(2), the order will not be conclusive against the defendants in a subsequent suit on a different cause of action.

The appeal will be dismissed as moot.

      . “§ 69. Effect of Appeal or Inability to Appeal.
      “(2) Where a party to a judgment cannot obtain the decision of an appellate court because the matter determined against him is immaterial or moot, the judgment is not conclusive against him in a subsequent action on a different cause of action.” Restatement, Judgments § 69. Under 1 V.I.C. § 4 this subsection of the Restatement states the common law rule in the Virgin Islands which is applicable to this case.


author: PER CURIAM-:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Cornelius HAMMONS, Defendant-Appellant.
    No. 73-3299
    Summary Calendar.

    United. States Court of Appeals, Fifth Circuit.
    Feb. 19, 1974.
    Ralph Loveless, Mobile, Ala., for defendant-appellant.
    Charles White-Spunner, U. S. Atty., Irwin W. Coleman, Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

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

   PER CURIAM-:

Although defendant correctly asserts that the comment of a witness reflecting upon defendant’s character was inadmissible evidence, a study of the record, the manner in which the comment came in, the trial judge’s instructions to the jury, and the nature of the overall evidence in the ease, convinces us that no reversible error occurred.

Affirmed.


text:
    Bill R. MARLIN, Petitioner-Appellant, v. STATE OF FLORIDA, Respondent-Appellee.
    No. 73-3503
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 15, 1974.
    Bill R. Marlin, pro se.
    Joel Rosenblatt, Linda C. Hertz, Asst. Attys. Gen., Miami, Fla., for respondent-appellee.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

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

   PER CURIAM:

This is an appeal from the district court’s denial of federal habeas corpus relief to Marlin, a Florida state prisoner. We affirm.

After unsuccessfully challenging his conviction on direct criminal appeal, Marlin v. State, Fla.App.1972, 268 So.2d 548, Marlin filed a habeas petition in the court below raising the same contentions as were rejected by the state court. As grounds for relief, Marlin alleged: (1) he was deprived of a fair trial by certain prejudicial remarks made by the prosecutor during the closing argument, as well as by the trial judge’s refusal to strike the testimony of one witness; and (2) the jury panel from which Marlin’s jury was selected was illegally constituted under the Florida Supreme Court’s pronouncement in State v. Silva, Fla.1972, 259 So.2d 153.

Marlin’s first contention does not present error of constitutional magnitude. Bryant v. Caldwell, 5 Cir. 1973, 484 F.2d 65; Buchannon v. Wainwright, 5 Cir. 1973, 474 F.2d 1006.

As to the second contention, the district court held that Marlin was precluded from attacking the composition of his jury for failure to timely object to the jury array. The court concluded that under Davis v. United States, 1973, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216, the failure to timely object must be construed as a waiver of any future challenge to the jury selection. We agree. Rivera v. Wainwright, 5 Cir. 1974, 488 F.2d 275 [No. 73-2982, January 17, 1974].

Affirmed.

      . Counsel for Marlin made an objection to the jury array immediately following its selection. The Florida appellate court found that this did not meet the requirements of Rule 3.300, Fla.Cr.P.R., 33 F.S.A., which requires that the objection be in writing and filed prior to examination, of any prospective juror.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jerry S. NIEZEK, Defendant-Appellant.
    No. 73-2729
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 14, 1974.
    Rehearing and Rehearing En Banc Denied March 28, 1974.
    Everett Lord, Beaumont, Tex., for Sekaly.
    Tanner T. Hunt, Jr., Beaumont, Tex., for Johnson.
    Joe B. Goodwin, Beaumont, Tex., for Niezek.
    Roby Hadden, U. S. Atty., Tyler, Tex., Charles E. Myers, Asst. U. S. Atty., Beaumont, Tex., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

Appellant Niezek appeals from his conviction on a two-count indictment for violations of Title 18, U.S.C., Sections 1955 and 2, and Title 18, U.S.C., Section 371. The evidence was submitted on a written stipulation before the District Court, the appellant having waived his trial by jury. After a careful review of the record, we find no merit in Niezek’s contentions that the evidence was insufficient to sustain his conviction on either count, and we affirm as to both counts.

Affirmed.


text:
    David McGEE, #34333-118, Plaintiff-Appellant, v. UNITED STATES DISTRICT COURT, MACON, GEORGIA, Defendant-Appellee.
    No. 73-2575
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 18, 1973.

      David McGee, pro se.
    William J. Schloth, U. S. Atty., Ronald T. Knight, Asst. U. S. Atty., Macon, Ga., for defendant-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

On appeal from the summary denial below of his Section 2255 petition, McGee challenges the voluntariness of his confession, contending that it was coerced in violation of Miranda and improperly induced by plea bargaining and promises of leniency. Both this court on a direct appeal from the original conviction, United States v. McGee, 464 F.2d 542, 543 (5th Cir. 1972), and the district court below in rejecting two habeas petitions by McGee, have adjudicated this same issue to be without merit. In addition, McGee seeks to contest the effectiveness of his court-appointed counsel, the trial court’s instructions to the jury, and the accuracy of the trial transcript. These contentions, several of which were raised and rejected in the prior habeas proceedings, can, in no event, be reviewed in this court since none of them were presented in the motion before the court below. Chunn v. Clark, 451 F.2d 1005 (5th Cir. 1971); Dryden v. United States, 403 F.2d 1008 (5th Cir. 1968). This appeal is dismissed as a frivolous abuse of legal process.

Dismissed.


author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    SPENCER COMPANIES, INC., Plaintiff-Appellant, v. ARMONK INDUSTRIES, INC., et al., Defendants-Appellees.
    No. 73-1283.
    United States Court of Appeals, First Circuit.
    Argued Nov. 8, 1973.
    Decided Dec. 20, 1973.

      David J. Brody, Boston, Mass., with whom Lewis H. Weinstein and Foley, Hoag & Eliot, Boston, Mass., were on brief, for appellant.
    Nathan T. Wolk, Boston, Mass., with whom Frank D. Aronson and Nathanson & Rudofsky, Boston, Mass., were on brief, for appellees.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

On August 3, 1973, Spencer filed with the district court its complaint against Armonk Industries, Inc., eight other corporate defendants, and four individual defendants alleging common law fraud and federal securities law violations. Spencer alleged that it sold all of the stock of its wholly-owned subsidiary, R. P. Hazzard Co., to Armonk for cash and Armonk’s note payable quarterly over four years and guaranteed by another defendant, New Jersey Industries, Inc. Spencer alleged that the so-called Michael Organization, dominated by the individual defendant, Michael, and his family, and composed of defendants and others, misrepresented Armonk as solvent and capable of paying the note when, in fact, it had commenced a one-year tax liquidation some seven months previously. Spencer seeks to impose a joint and several liability upon all the defendants totalling not only the remaining balance on the note but all the “profits” earned by Armonk and related companies because of their purchase of Hazzard.

On August 7, Spencer moved for a temporary order restraining the defendants from rendering Armonk unable to meet Spencer’s asserted claims by further distributing Armonk’s assets. Spencer gave notice on August 13 to the attorney for Armonk and New Jersey that the motion would be heard on August 15 (before the “emergency” judge, as the judge to whom the case had been assigned was away). The Hearing was’ attended by counsel for Armonk and New Jersey. Spencer said at the hearing that it had not learned of Armonk’s liquidation until a month previously at a deposition in a law suit which Armonk and others had commenced against Spencer. Counsel for Armonk rejoined that

(1) Armonk had been a mere nominee, because the parties had relied on New Jersey’s financial ability, not Armonk’s;

(2) New Jersey had a net worth of over $23,000,000; and (3) Michael and the other defendant constituents of the Michael Organization afforded ample security for the claim.

The court, without findings, denied temporary relief as a “matter of discretion”. Spencer thereafter moved for a preliminary injunction but, upon learning that the emergency judge would not hear the motion and that the regularly assigned judge would not be available until the next month at the earliest, filed this appeal.

If we have jurisdiction of this appeal, it is because the emergency judge’s denial of the motion for a temporary restraining order was tantamount to denial of a preliminary injunction. “In a civil action, an order granting, denying or dissolving a restraining order qua restraining order is non-appealable.” 7 Moore’s Federal Practice ¶ 65.07. Austin v. Altman, 332 F.2d 273 (2d Cir. 1964). Sometimes, however, although the distinction may be “subtle and difficult to draw,” Austin v. Altman, supra, 275, an order denying a temporary restraining order after full presentation by the parties has the effect of the refusal of “an injunction” within the meaning of 28 U.S.C. § 1292(a)(1). Such a situation may exist if the refusal of even temporary relief cuts off the possibility of meaningful interlocutory relief, e. g. refusal to restrain a student’s immediate expulsion from school, Woods v. Wright, 334 F.2d 369 (5th Cir. 1964); refusal to bar a prosecution, United States v. Wood, 295 F.2d 772 (5th Cir. 1961); or vacating an order that had been the sole assurance against mooting the case, Wirtz v. Powell Knitting Mills, 360 F.2d 730 (2d Cir. 1966).

The present order would normally not be in that category. But Spencer, in spite of its diligence, could not obtain a prompt hearing or ruling on its subsequent motion for preliminary injunction; by the time the motion could be considered, the security which it sought might well have vanished. Under the circumstances, Spencer was entitled to treat the initial order, entered after a full hearing, as appealable, thus permitting it to seek an immediate injunction pending appeal (which, as it turned out, we denied). Cf. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); New England Power Co. v. Asiatic Petroleum Corp., 456 F.2d 183 (1st Cir. 1972). Had a hearing on the motion for preliminary injunction been available in normal course, or had Spencer not demonstrated diligence, the legal effect of the order would, of course, have been different.

Turning to the merits, we conclude that the district court did not abuse its discretion in denying injunctive relief. It could reasonably conclude that Spencer had demonstrated neither a probability of success nor a clear likelihood of irreparable harm. Spencer’s claims, in excess of $4,000,000, are gounded in large part not on the outstanding balance of the note (as to which Spencer concedes that under the New Jersey guaranty it is relatively secure) but on a rather novel and complex theory of damages. Without suggesting that Spencer may not yet be able to make out a case, it is difficult to quarrel with the district court insofar as it may have thought that Spencer faced an uphill battle on the merits. To date all installments on the note have been paid when due, although Armonk has sued Spencer in the state courts seeking relief which would affect the obligation. The alleged misrepresentations, going only to the possible value of the note, might arguably support a claim the maximum value of which is the value of the note as it had been represented to be. See 3 L. Loss, Securities Regulation 1628-30 (2d ed. 1961). The question of damages cannot,- at least superficially, be analogized to that faced in Janigan v. Taylor, 344 F.2d 781 (1st Cir. 1965), where the misrepresentation went to the value of the shares, and where the facts were significantly different.

Moreover, there is a major factual' dispute concerning the materiality of any misrepresentations, if made. The defendants assert, and portions of the complaint and purchase agreement seem to bear them out, that Spencer’s arrangements were only nominally with Armonk. Cf. Affiliated Ute Citizens v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972); SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 195, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963). Finally, there are lurking problems concerning the applicability of the securities laws. Is a purely private note a “security”? See Lino v. City Investing Co., 487 F.2d 689 (3d Cir. 1973) and cases cited therein. If not, is a misrepresentation relevant not to the value of the stock but only to likelihood of receiving the promised payment, within the scope of the statutes? Compare A. T. Brod & Co. v. Perlow, 375 F.2d 393 (2d Cir. 1967) with Eason v. General Motors Acceptance Corp., 490 F.2d 654, 656 n. 5 (7th Cir. 1973).

While we do not prejudge any of these issues, we think the district court was within its discretion to conclude that there was uncertainty whether Spencer would ever prevail on the merits.

As for irreparable harm, we have already noted that a sizeable group of corporations and individuals, members of the Michael Organization, are named as defendants. It was not shown that all or-most would be judgment-proof. The district court could have concluded that if Spencer recovered it would not be without sources from which to collect.

Finally, counsel for Armonk represented, albeit in a curiously hedged manner, that all, or virtually all, of Armonk’s resources had already been distributed.

While the assurances were in form and content understandably unsatisfactory to Spencer, we cannot say that the district court was not entitled in its discretion to attach some significance to them. We would add that we shall remain mindful of appellee’s assurances made to us at oral argument which we take as unequivocal representations to this court that Armonk had distributed its assets.

Affirmed.

      . See ITT Lamp Division v. Minter, 435 F.2d 989 (1st Cir. 1970), cert. denied 402 U.S. 933, 91 S.Ct. 1526, 28 L.Ed. 868 (1971); Riseman v. School Committee, 439 F.2d 148 (1st Cir. 1971). Cf. Graham v. Minter, 437 F.2d 427 (1st Cir. 1971).

      . The purchase agreement contains a series of detailed representations and warranties made by New Jersey; , reference is made to New Jersey’s balance sheet, which Spencer inspected. By way of contrast there are no representations about the status of Armonk, which had been “substituted” for another corporation in the Michael Organization only the night before.


text:
    Robert WILLIS, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-2167.
    United States Court of Appeals, Ninth Circuit.
    Dec. 17, 1973.
   OPINION

Before ELY, HUFSTEDLER and SNEED, Circuit Judges.

PER CURIAM:

Counsel Was appointed to represent petitioner in his efforts to vacate his sentence pursuant to 28 U.S.C. § 2255. Apparently dissatisfied with his counsel’s efforts, petitioner moved for assistance of the Court, alleging that counsel had failed to “properly and expeditiously” advance petitioner^ claims. Counsel responded by requesting the District Court to permit his withdrawal as attorney of record for petitioner. In his supporting affidavit, counsel noted that he had reviewed the record and substance of petitioner’s claim and concluded that it was without legal basis. The District Court failed to take action on either petitioner’s or counsel’s motion, but did grant summary judgment in favor of the Government.

As we stated in McCartney v. United States, 343 F.2d 471 (9th Cir., 1965),

Counsel apparently misconceived his role. It was his duty to honorably present his client’s contentions in the light most favorable to his client. Instead he presumed to advise the court as to the validity and sufficiency of prisoner’s motion, by letter.

343 F.2d at 472. Unlike the situation in McCartney, counsel in this case apparently conducted an independent investigation of the adequacy of his client’s claims, and his request to withdraw was apparently in response to petitioner’s claim that he was not being effectively represented. We nevertheless feel that, while it may be proper for counsel in some situations to request permission to withdraw from a case, the net effect of such action should not be to leave petitioner without effective representation. Such representation requires more than an independent investigation that leads counsel to conclude the client's claim has no legal basis. It is for the court to pass on the legal basis of the claim after its presentation by counsel in as favorable a manner as it permits.

We therefore reverse and remand to the District Court with instructions to set aside the judgment and appoint new counsel prepared to investigate and advance petitioner’s claims with full vigor.

Reversed and remanded.

      . We indicated in McCartney, supra, that, “Having thus determined th&t counsel should have been appointed, the District Court should have taken steps to insure effective representation.” 343 F.2d at 472. See also Harders v. California, 373 F.2d 839 (9th Cir., 1967).


text:
    Mary A. JONES, Plaintiff-Appellant, v. Paul W. PRIEBE et al., Defendants-Appellees.
    No. 73-1078.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 9, 1973.
    Decided Dec. 27, 1973.
    Joseph L. Newman, Cleveland, Ohio, on brief, for plaintiff-appellant.
    John P. Berena, Cleveland, Ohio, for defendants-appellees; Frederick M. Coleman, U. S. Atty., Nancy C. Schuster, Asst. U. S. Atty., Cleveland, Ohio, on brief.
    Before WEICK, EDWARDS and LIVELY, Circuit Judges.
   PER CURIAM.

Mary A. Jones has appealed from a summary judgment of the District Court, which judgment affirmed the decision of the United States Civil Service Commission sustaining her dismissal from employment by the Veterans Administration. She had been employed as a clerk-typist and travel clerk, grade GS-3, by the Veterans Administration at its Cleveland hospital. It was part of her duties to issue vouchers authorizing cash disbursements to veterans for specified travel expenses.

On August 6, 1970 Mrs. Jones was given an advance notice of proposed removal from her employment because of five charges of preparing fraudulent vouchers authorizing cash reimbursement of mileage-allowance to post-hospital-care patients.

A hearing was later held before a hearing examiner, who found that Mrs. Jones did prepare the fraudulent vouchers. This finding was upheld at every stage of the administrative review, which included the Administrator of Veterans’ Affairs, the Appeals Examining Office, United States Civil Service Commission, Chicago Region, and the Civil Service Commission Board of Appeals and Review.

Mrs. Jones then sought review of the decision of the Civil Service Commission in the United States District Court. The District Judge, in a Memorandum Opinion and Order, granted summary judgment in favor of the Commission.

Mrs. Jones challenges the sufficiency of the evidence to support the factual findings of the Commission. The scope of review in this type of case is very limited. Determinations of an administrative body can be overturned only if they are not supported by substantial evidence. 5 U.S.C. § 706(2) (E). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938), and it must be enough to warrant denial of a motion for a directed verdict in a civil case tried to a jury. NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed. 660 (1939), and Peoples Bank of Trenton v. Saxon, 373 F.2d 185, 189 (6th Cir. 1967).

An examination of the evidence in this ease reveals that it meets the test of substantiality. The voucher preparation process was based on an index card system which described the various authorizations to which each veteran was entitled. Mrs. Jones was required to check this master file as to each veteran before issuing a voucher. She issued and initialed several vouchers to four persons who were not veterans authorized to receive the same. Extra cards were found in the master file corresponding to names of these veterans, which cards had been typed by Mrs. Jones. One of the extra cards in Mrs. Jones’ own handwriting listed the name of her ex-husband.

Although Mrs. Jones never denied that she prepared the additional cards, she contends that faulty supervision and lax administrative procedures enabled her to do what she did. She claims she made these extra cards from appointment cards that were presented to her. However, this explanation seems unlikely and obviously was not believed by the hearing examiner. As a matter of practice appointment cards would have been presented to her only when and if the persons presenting them had actually received hospital care on that day; hospital records indicated that the persons named on certain vouchers had not been treated on the relevant days in question.

In our opinion there was substantial evidence to support the findings of the Commission.

The judgment of the District Court is affirmed.


text:
    Jerry BISHOP and Phyllis Bishop, Plaintiffs-Appellees, v. DURA-LITE MANUFACTURING CO., Defendant-Appellant.
    No. 73-1013.
    United States Court of Appeals, Sixth Circuit.
    Argued June 6, 1973.
    Decided Dec. 27, 1973.

      David E. Caywood, Dobbs, Gatti & Caywood, Memphis, Tenn., on brief for defendant-appellant.
    Crawford McDonald, McDonald, Kuhn, Smith, Gandy, Miller & Tait, Memphis, Tenn., on brief for plaintiffs-appellees.
    Before PECK .and McCREE, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
   PER CURIAM.

This is an appeal from a decision of the United States District Court awarding plaintiffs-appellees a judgment of $21,666.85, and permitting them to attach and sell an aircraft in the possession of appellant. We affirm the district court’s decision.

On June 20, 1968, plaintiffs filed a suit in the District Court of Ford County, Kansas, against National Outdoor Display, Inc., and Hal Burns, its president, for breach of contract and misrepresentation. In May 1970 plaintiffs were awarded a judgment of $21,666.85 against each of these defendants. Plaintiffs subsequently sought and obtained default judgments against both National and Burns, but these judgments remained unsatisfied. Plaintiffs then filed this diversity suit against Dura-Lite Manufacturing Company, and sought to attach an aircraft that had originally been purchased and owned by National but was now in Dura-Lite’s possession. The district court found that the aircraft was transferred on April 1, 1969 to Dura-Lite by National during the pendency of the plaintiffs’ suit against National. The court also found that National transferred the aircraft to Dura-Lite for a consideration of $9,700, and that, at the time of transfer, Burns, who was president of National and also of Dura-Lite, was aware of the fair market value of the aircraft, which the court found, on the basis of expert testimony, to be $17,000.

The record reveals that Dura-Lite, like National before it, was engaged in the business of manufacturing and selling outdoor signs; that Dura-Lite used the same tools and equipment that National had used; and that Dura-Lite was operated in the same premises that National had occupied. Burns, who was the chief manager of National, remained in that position in Dura-Lite, although Burns testified that his brother, who allegedly contributed some capital to the new enterprise, was also a participant in management of the second company. Burns testified that his wife and brother held the majority of stock in Dura-Lite, but only Burns himself signed the stock subscription list. Burns testified that new money and people were employed in Dura-Lite and that a new line of signs was manufactured and sold.

The court, however, in addition to concluding that there was no significant difference presented in the evidence between National’s operation and that of Dura-Lite, expressly found that “Dura-Lite was formed with the intent to escape liability on the debts prevously accumulated by National.”

Applying Tennessee law, which is controlling in this case, the district court concluded that, although no cases directly in point were found, under Tennessee law “a new corporation which is merely the continuation of an old one and which was formed in order that the old corporation could escape liability on its debts shall be deemed to have assumed the debts and liabilities of its predecessor,” citing Long v. Fischer Typewriter Company, 1 Tenn.Ch.App. 668 (1901). We agree. See also Jennings, N. & Co. v. Crystal Ice Co., 128 Tenn. 231, 159 S. W. 1088 (1913); Vance v. McNabb Coal & Coke Co., 92 Tenn. 47, 20 S.W. 424 (1892). See generally 49 A.L.R.3d 881 (1973), and cases cited therein. Indeed, appellant “does not take issue with the general law as laid down by the learned trial judge, but rather takes exception to the factual conclusions drawn by the trial judge after a review of the evidence.” Brief for appellant at 45.

After a careful consideration of the record, we hold that the findings of fact of the trial judge are not clearly erroneous, Fed.R.Civ.P. 52(a), and we determine that the court did not err in its application of Tennessee law to these facts. Because we agree with the district court’s decision on this ground, which is dispositive, we do not find it necessary to consider the court’s alternative holding that the transfer of the aircraft was a fraudulent conveyance in violation of T.C.A. § 64-312.

The judgment of the district court is affirmed.


text:
    Harold W. RAPP, Appellant, v. Charles L. WOLFF, Jr., Appellee.
    No. 73-1708.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 14, 1973.
    Decided Jan. 2, 1974.
    Harold Wellington Rapp, filed brief pro se.
    Clarence A. H. Meyer, Atty. Gen., and C. C. Sheldon, Asst. Atty. Gen., Lincoln, Neb., for appellee.

      Before BRIGHT and STEPHENSON, Circuit Judges, and STUART, District Judge.

       WILLIAM C. STUART, District Judge, Southern District of Iowa, sitting by designation.

   PER CURIAM.

Appellant Harold W. Rapp has appealed the dismissal of a petition for writ of habeas corpus. The order dismissing his petition was entered by the Honorable Warren K. Urbom following an evi-dentiary hearing on the merits of appellant’s claim.

The substance of appellant’s claim is that a plea bargain entered into by his attorney and the prosecuting attorney in relation to a charge of burglary in Douglas County, Nebraska, was not kept by the prosecuting attorney’s office after appellant pleaded guilty and that the United States District Court erred in not so finding and thus dismissing his petition. In addition, appellant assigns error to the failure of the District Court to find that he was represented by incompetent counsel at the time of his sentencing.

We reject those contentions.

The Court has carefully reviewed the record as before it. This includes a transcript of the hearing conducted by Judge Urbom, in compliance with Santo-bello v. New York (1971), 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427, which contains portions of the transcript from appellant’s sentencing in the Douglas County District Court.

From that record it is quite evident to the Court that the prosecuting attorney both indicated his understanding of the plea bargain, which was to recommend that appellant be sentenced to five years on.the burglary charge, and that he recited the terms of the bargain into the record. The prosecuting attorney present at sentencing was not the one who participated in the bargaining itself. However, the Court does not find that fact fatal to finding that the bargain was kept.

Appellant’s main argument that the plea bargain was not kept stems from the fact that he received a 10-year sentence, instead of the 5-year term that was to be recommended. The sentencing judge in offering appellant the opportunity to withdraw the plea conditioned that offer upon the likelihood, however, that the prosecuting attorney would be free to press additional charges against the defendant. A review of the entire record, including appellant’s two unsuccessful appeals to the Nebraska Supreme Court, see State v. Rapp (1969), 184 Neb. 156, 165 N.W.2d 715; State v. Rapp (1971), 186 Neb. 785, 186 N.W.2d 482, reveals that appellant’s primary contention lies in the fact that the sentencing judge utilized extraneous evidence in handing down the maximum term. This Court holds there is substantial evidence to support the trial court’s finding that the plea bargain was kept. The recommendation was fully recited in the record. The defendant acknowledged that he knew that the sentencing judge is not bound by any such recommendation.

Appellant’s contention "that his counsel at sentencing was incompetent because he did not withdraw the guilty plea after the greater- sentence was handed down is also belied by the record. The sentencing judge gave appellant and his attorney time in which to withdraw the plea, but both decided against it because, according to the sworn testimony of the appellant’s attorney, they both felt the judge had made reversible error by utilizing the extraneous evidence in the sentencing. The decision not to withdraw the guilty plea was one exercised in appellant’s attorney’s independent judgment. There is substantial evidence to support the trial court’s finding that appellant’s counsel was not incompetent.

Affirmed.

      . This was fully discussed in State v. Rapp (1969), 184 Neb. 156, 165 N.W.2d 715. In brief, the sentencing judge 'imposed the maximum sentence because between the time appellant entered his guilty plea and the date of sentencing, he attempted to escape from jail. The sentencing judge used this evidence in determining the sentence and the Nebraska Supreme Court upheld its use although it was not included in the presen-tence report.


text:
    Leroy WALKER, Jr., Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1563.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 13, 1973.
    Decided Jan. 16, 1974.
    Kenneth K. Simon, Kansas City, Mo., for appellant.
    J. Whitfield Moody, Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before BRIGHT and STEPHENSON, Circuit Judges, and STUART, District Judge.

       WILLIAM C. STUART, District Judge, Southern District of Iowa, sitting by designation.

   PER CURIAM.

Leroy Walker, Jr. appeals from a conviction of possession with intent to distribute narcotics in violation of 21 U.S. C. § 841(a)(1). We have carefully reviewed the record and affirm the conviction.

On June 13, 1972, special agents assigned to DALE (Drug Abuse Law Enforcement Task Force) broke into an apartment dwelling located in Kansas City, Missouri, and, in the execution of a search warrant, seized quantities of heroin including approximately 32 grams contained in a plastic bag located upon a dresser top in a bedroom. Law enforcement officers found smaller quantities of heroin in the kitchen. The conviction against appellant rested upon the seizure of narcotics in the bedroom. Appellant and the lessee of the apartment, Ms. Gloria Tucker, were within the premises at the time of the search and seizure.

Appellant raises two issues on this appeal. He first claims that the evidence is insufficient to show him in possession of the heroin, arguing that his mere presence within the apartment will not sustain the guilty verdict. Second, appellant claims error in the trial court’s refusal to instruct the jury regarding the failure of a party to produce an absent witness. Neither point carries any merit.

Regarding the sufficiency of the evidence, appellant argues that United States v. Bonham, 477 F.2d 1137 (3d Cir. 1973) (en banc), requires reversal since it is on all fours with the circumstances of this case. In Bonham, police executed a search warrant by entering the home of appellant’s mother which was occupied by her two accused sons, her daughter, her daughter’s husband, and the infant daughter of one son. In searching the shared bedroom of the two sons, police found narcotics concealed in a hidden recess above the bedroom doorway. The court held that this fact, without more, was not sufficient to sustain the conviction, for:

Here there was nothing except the joint occupancy of the room upon which an inference of possession could be based. A fact finder could only speculate whether both of the room’s occupants or a particular one of them even knew of the cache, much less exercised control over the hidden contraband.
We have not overlooked the testimony of one of the searching officers that suspicious articles other than heroin were found in plain view on a table in the bedroom. But even if the prosecution had proved that these articles were marijuana and phenaphen, as the officer said he suspected, appellant’s awareness of their presence would be no evidence of knowledge that heroin was concealed elsewhere. [477 F.2d at 1139.]

We have no quarrel with this decision, for the Bonham court itself distinguishes a case in which the narcotics are hidden, as in Bonham, from one, like the instant ease, where the narcotics are in plain view. 477 F.2d at 1138-1139; cf. United States v. Davis, 461 F.2d 1026 (3d Cir. 1972). Here, the evidence inexorably points to appellant as constructively possessing the narcotics in question. We briefly detail some of the circumstances.

Although Ms. Tucker had rented the apartment approximately one month before the raid, the evidence indicated that appellant was more than a temporary occupant. He possessed a duplicate set of keys to the apartment. Although Walker was discovered in the nude when law enforcement officers entered the apartment, the searchers found the clothes he had been wearing hung in the bedroom closet near where the heroin was found. Other male clothing hung in the closet, his wallet was on the dresser, and sets of underclothing were in the dresser drawers. Ms. Tucker conceded Walker was a “boyfriend” and the building manager testified to seeing Walker in the apartment complex about 10 or 15 times and noted the overnight presence of Walker’s Cadillac automobile in the apartment parking lot the same number of times.

Upon entry into the apartment, police observed that Walker stood an arm’s length away from a loaded revolver which lay upon a nearby counter top. Ms. Tucker in her own testimony denied ownership of the narcotics and the loaded firearm. While she sought to suggest that Herb Woody Jones, a government informer, had delivered the heroin to the apartment on the day of the search, her testimony in this respect was impeached.

From our review of the record, • we find ample evidence to support a reasonable inference that appellant jointly occupied the premises where the heroin was discovered and that he was in knowing control or dominion over the heroin in question. See United States v. Bridges, 419 F.2d 963 (8th Cir. 1969); United States v. Davis, supra.

As to the second issue, we find no merit to the claim that the court erred in failing to give the “missing witness” instruction. Appellant made no adequate showing that the government at the time of trial possessed the sole power to produce Jones as a witness. Moreover, appellant did not request that the government make Jones available as a witness, either at the time of trial or earlier. There is no error. See Johnson v. United States, 291 F.2d 150, 155 (8th Cir.), cert. denied, 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80 (1961).

Accordingly, we affirm.

      . See, e. g., E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 11.33 (1970) :
      If it is peculiarly within the power of either the prosecution or the defense to produce a witness who could give material testimony on an issue in the case, failure to call that witness may give rise to an inference that his testimony would be unfavorable to that party. However, no such conclusion should be drawn by you with regard to a witness who is equally available to both parties, or where the witness’s testimony would be merely cumulative.
      The jury will always bear in mind that the law never imposes on a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.


text:
    NCR EMPLOYEES' INDEPENDENT UNION, et al., Plaintiffs-Appellees, v. The NATIONAL CASH REGISTER COMPANY, Defendant-Appellant.
    No. 73-1308.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 9, 1973.
    Decided Dec. 18, 1973.
    Certiorari Denied April 29, 1974.
    See 94 S.Ct. 1993.
    Randall N. Bothmann, Cowden, Pfar-rer, Crew & Becker, Dayton, Ohio, on brief, for defendant-appellant.
    Paul H. Tobias, Goldman, Cole & Put-nick, Cincinnati, Ohio, on brief, for plaintiffs-appellees; John A. Fillion, Gen. Counsel, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW) Detroit, Mich., of counsel.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and MILLER, Circuit Judges.
   PER CURIAM.

This appeal questions whether the district court erred when it directed that a labor dispute be submitted to arbitration “without regard to any contractual time or procedural limitation” contained in the collective bargaining agreement. For reasons which we will explain below, we believe that the district court did not commit error.

In January of 1969, the National Cash Register Company executed a collective bargaining agreement with the NCR Employees’ Independent Union. Previously the company, and the union had agreed to a temporary work schedule which controlled the manner by which the employees would return to their jobs after a strike of several weeks. Subsequently, a dispute arose over whether the company had violated this latter agreement by not scheduling certain employees for overtime during the readjustment period. Not satisfied with the company’s response, the union filed suit in February of 1969, in the Common Pleas Court of Montgomery County, Ohio, and requested that the court determine the rights of certain employees to have been scheduled for overtime work. The action was later removed to the United States District Court for the Southern District of Ohio.

The company moved for dismissal, contending that the grievance and arbitration procedures of the collective bargaining agreement contained the sole remedy of the union. Consequently, the court would be without jurisdiction to hear the case. Treating the motion for dismissal as one for summary judgment, the district court held that the temporary work schedule was part of the collective bargaining agreement and disputes arising out of its interpretation must follow the course proscribed in the grievance-arbitration procedures. Appeal was then taken by the union to this Court. We reversed and remanded the case because we found that the district court erred in treating the motion for dismissal as one for summary judgment without notifying the parties and affording them the opportunity to present additional evidence. We closed the opinion with the following paragraph and footnote:

In the event the court proceeds in this manner and again concludes that arbitration is the exclusive remedy on the merits of plaintiffs’ claim of violation of the “Work Schedule,” we think that in the interest of justice and equity the court should direct the parties to proceed to arbitration on the violation issue rather than dismiss the action outright. It follows that if the court should conclude that the plaintiffs’ claim is not governed by any arbitration clause, it would then proceed to determine the plaintiffs’ claim on the merits.

Upon remand the district court again found that the grievance-arbitration procedure of the collective bargaining agreement was the exclusive remedy of the union. The court ordered that the matter be submitted to arbitration “without regard to any contractual time • or procedural limitations contained in Article VII of the Collective Bargaining Agreement.” The company now appeals the order on the ground that the'union must follow the entire grievance-arbitration procedure and be subject to the procedural and time limitations contained therein.

This lawsuit was brought in an atmosphere of confusion as to whether the temporary work schedule was a part of the collective bargaining agreement. Since the schedule related only to a limited period and was not executed at the same point in time as the agreement, the union did not act unreasonably when it concluded that the schedule was not incorporated into the agreement and that its remedy was with the courts, not the grievance procedure. Yet in the course of this lengthy litigation, the period for filing a timely grievance under the agreement expired. We were cognizant of this problem when this case was first before the Court and directed that should the district court find that the grievance-arbitration procedure controlled, it should not allow the company to foreclose arbitration by asserting that the union’s claim was not timely filed. Had we done otherwise, it would have been at the expense of the well-established congressional policy favoring arbitration as a means of preserving union-management peace. See United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 567-568, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 598, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).

Our decision simply means that arbitration remains as a viable means of resolving the dispute. See generally, Boone v. Armstrong Cork Company, 384 F.2d 285 (5th Cir. 1967).

The judgment of the district court is affirmed.

      . The Court in this event should specify the applicable arbitration provision and its order should direct arbitration of the substantive issue without regard to any possible contractual time or other procedural limitations. To enforce its order the Court will retain jurisdiction pending arbitration.


author: AINSWORTH, Circuit Judge:

text:
    John McPHEE, Jr. and Sheri McPhee, Plaintiffs-Appellants, v. OLIVER TYRONE CORPORATION et al., Defendants-Appellees.
    No. 73-1660.
    United States Court of Appeals, Fifth Circuit.
    Feb. 6, 1974.

      J. Joshua Stevens, Jr., West Point, Miss., Howard A. Davis, Milwaukee, Wis., for plaintiffs-appellants.
    James E. Price, Corinth, Miss., for defendants-appellees.
    Before WISDOM, AINSWORTH and GEE, Circuit Judges.
   AINSWORTH, Circuit Judge:

This is an appeal from a district court order granting the motion of the defendant for summary judgment and dismissing the complaint on its merits. We reverse and remand for trial on the merits.

In 1965, John McPhee, Jr. was operating a sawmill for his employer, Erickson Hardwoods, Inc., of Onalaska, Wisconsin, when the log carriage unexpectedly moved and forced him into the saw blade, amputating both of his legs. Corinth Machinery Company, a Mississippi corporation domiciled in Corinth, Mississippi, had installed the sawmill pursuant to an agreement to replace portions of Erickson’s existing sawmill. After receiving the results of an inspection of the existing mill by one of Corinth’s sales representatives, Corinth’s chief engineer determined that the appropriate carriage drive for Erickson’s operation was a unit manufactured by the appel-lee, Oliver Tyrone Corporation, a Pennsylvania corporation with its main office in Corinth, Mississippi. The required carriage drive was then purchased from Tyrone and was delivered to Corinth in Corinth, Mississippi, as a packaged unit with a control lever mounted directly on the side of the unit. The control lever, as manufactured and sold by Tyrone, did not contain a locking device to prevent unintentional movement of the carriage drive.

Upon receipt of the unit, Corinth’s chief design engineer determined that a longer control lever for the carriage drive might be operated and controlled by the sawyer at a distance from the unit itself. The original control lever was removed and discarded, and Corinth manufactured a new control lever, which, like the original, did not incorporate a locking device. Corinth then mounted the carriage drive on its frame husk, and this complete assembly, along with other related items, was shipped to Erickson, which assembled the entire sawmill.

McPhee and his wife, Wisconsin residents, brought a diversity action against Corinth and Tyrone in the United States District Court for the Western District of Wisconsin for damages sustained by them as a result of the aforementioned accident. They contended that the movement of the carriage which initiated the accident occurred without any action on McPhee’s part and that this could have been prevented by incorporating a locking device into the control lever.

The Wisconsin district court dismissed Tyrone for lack of jurisdiction over the person. See Fed.R.Civ.P. 12(b)(2). Pursuant to a special jury verdict, the MePhees were awarded judgments against Corinth in the total amount of $474,349.46, plus interest and costs. In response to a question submitted by the court, the jury found Corinth negligent in “failing to provide a locking device” and in “failing to properly inspect and supervise the installation.” The judgment was affirmed by the United States Court of Appeals for the Seventh Circuit.

Corinth, unable to respond to the entire judgments, negotiated a settlement with the MePhees under which Corinth’s liability carrier paid $100,000, the limits of its policy, and Corinth paid $100,000. As part of the agreement, Corinth also assigned and transferred to the MePhees such claim or claims as Corinth might have for indemnity or contribution against Tyrone.

The MePhees, appellants here, then filed this diversity suit to recover $150,000 from Tyrone. Count I of their complaint seeks indemnity on the theory that Corinth’s negligence was “passive” while Tyrone’s was “active.” This count recognizes the Mississippi doctrine that joint tort-feasors in pari delicto are not entitled to indemnity from each other. See, e. g., Smith Petroleum Serv., Inc. v. Monsanto Chem. Co., 5 Cir., 1970, 420 F.2d 1103, 1112; Home Ins. Co. v. Atlas Tank Mfg. Co., 230 So.2d 549 (Miss. 1970); Bush v. City of Laurel, 215 So. 2d 256 (Miss.1968). Count II of the complaint is based on the theories of breach of implied warranty and strict liability in tort.

Affidavits in support of the summary judgment motion were filed in the district court by Tyrone's chief engineer and by Corinth’s board chairman and chief design engineer; and affidavit in opposition to the motion was filed by appellants’ counsel. The affidavits submitted in support of the motion included pictures and drawings of the unit involved in this suit; the affidavits in opposition contained exhibits and testimony excerpted from the evidence presented at the Wisconsin trial.

The district court granted Tyrone’s motion for summary judgment. 353 F. Supp. 601. With respect to Count I, the court concluded as a matter of law that Corinth’s negligence was active rather than passive, and that under Mississippi law there is no right of indemnity between two such equally culpable tort-fea-sors as Tyrone and the McPhees’ assign- or, Corinth. The court also found that appellants could not recover under the theories of implied warranty or strict liability in tort. The court rejected their contention that there was an implied warranty to furnish a product suitable for the use intended because it was of the opinion that the omission of a locking device on the control lever was “obvious and apparent to all.” Id. at 607. Consequently, under Mississippi law it saw no duty on the part of Tyrone, the manufacturer, to warn Corinth of this “obvious defect.” Id.; see Har-rist v. Spencer-Harris Tool Co., 244 Miss. 84, 140 So.2d 558, 562 (1962). Appellants’ theory of strict liability in tort was rejected on the ground that a substantial change, the attachment of a new control lever, was made in the unit after its sale by Tyrone and before the unit reached the mill. See State Stove Mfg. Co. v. Hodges, 189 So.2d 113, 118 (Miss.1966), cert. denied, 386 U.S. 912, 87 S.Ct. 860, 17 L.Ed.2d 784 (1967).

Summary judgment should be granted only when the moving party is entitled to judgment as a matter of law and when no genuine issue remains for trial, it being quite clear what the truth is. Fed.R.Civ.P. 56(c); Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 728-729, 321 U.S. 620 (1944); Shahid v. Gulf Power Co., 5 Cir., 1961, 291 F.2d 422, 423-424. See also Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945); Eccles v. Peoples Bank, 333 U.S. 426, 68 S.Ct. 641, 92 L.Ed. 784 (1948). After careful examination of the record before us, we do not think these requirements were satisfied. As an appellate court, however, we are not called upon to decide factual issues, but only to determine whether there may be factual issues to be tried. Slagle v. United States, 5 Cir., 1956, 228 F.2d 673; National Screen Serv. Corp. v. Poster Exch., Inc., 5 Cir., 1962, 305 F.2d 647, 651. See also Palmer v. Chamberlin, 5 Cir., 1951, 191 F.2d 532, 540.

In this case, there appear, at the least, to be genuine issues of fact with respect to: (1) whether Corinth’s negligence was active or passive in relation to Tyrone’s responsibility for the accident; (2) whether the omission of a locking device on the control lever constituted an obvious danger; (3) whether Corinth’s attachment of a new control lever constituted a substantial change in the original unit. The district court’s resolution of these issues on the basis of the materials before it was unwarranted. These materials, including evidence adduced at the Wisconsin trial and the jury’s special verdict there, did not provide a sufficient basis on which to draw conclusions of fact and law in this ease.

The facts and cii’cumstances of this lawsuit should be developed through the full inquiry of a trial before the district court below. Since the ultimate questions to be answered in this case are complex and are necessarily entwined with the interpretation of the facts, an explication of the facts before that court is necessary if it is to deal adequately with the applicable law. See, e. g. NLRB v. Smith Indus., Inc., 5 Cir., 1968, 403 F.2d 889, 893; Keating v. Jones Dev. of Missouri, Inc., 5 Cir., 1968, 398 F.2d 1011.

Reversed and remanded.


author: WISDOM, Circuit Judge:

text:
    Paz R. HERNANDEZ, Plaintiff-Appellee, v. The TRAVELERS INSURANCE COMPANY, Defendant-Appellant.
    No. 73-1226.
    United States Court of Appeals, Fifth Circuit.
    Feb. 19, 1974.
    Reheating and Rehearing En Banc Denied April 16, 1974.

      Jerry A. Gibson, Dayton G. Wiley, San Antonio, Tex., for defendant-appellant.
    Les Mendelsohn, San Antonio, Tex., for plaintiff-appellee.
    Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
   WISDOM, Circuit Judge:

The defendant-appellant, Travelers Insurance Company, brings this interlocutory appeal under 28 U.S.C. § 1292(b) from the denial by the district court of Travelers’ motion to dismiss for want of subject matter jurisdiction. The question for decision is whether in a direct action by an employee against his employer’s workmen’s compensation insurer, the insurer shall be deemed a citizen of the state of which the employer is a citizen for purposes of determining whether diversity of citizenship jurisdiction exists. We hold that in such cases a workmen’s compensation insurer should be deemed a citizen of the state of which the insured is a citizen, and accordingly we reverse.

The plaintiff-appellee, Paz R. Hernandez, is a citizen of Texas. He sustained the injuries involved in this suit while he was working for the Parker Transport Company, a proprietorship wholly owned by J. F. Parker. Parker d/b/a Parker Transport Company, and Contractors Hauling, Inc., a Texas corporation wholly owned by Parker, are the named insureds under Workmen’s Compensation and Employer’s Liability Policy No. UB4801599, issued by Travelers. Both Parker and Contractors Hauling, Inc., are citizens of Texas. Travelers is incorporated in Connecticut and has its principal place of business there.

The case turns on a 1964 amendment to the diversity of citizenship jurisdictional statute, 28 U.S.C. § 1332(e). The amendment added the following proviso:

That in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated, or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business.

If this proviso applies to suits brought by a workman against his employer’s workmen’s compensation insurer, then Travelers in this suit must be deemed a citizen of Texas, and there is no diversity jurisdiction. If not, of course, Travelers must be deemed a citizen of Connecticut, and there is diversity jurisdiction.

We have found no circuit court decision in point. The United States district court for the Eastern District of Tennessee, however, has twice considered the precise question at issue here, and both times has held that a suit by a workman against his employer’s insurer was a “direct action against the insurer of a policy or contract of liability insurance” within the meaning of § 1332(c). Vines v. United States Fidelity & Guaranty Co., E.D.Tenn.1967, 267 F.Supp. 436; Lane v. Insurance Company of North America, E.D.Tenn.1967, 268 F. Supp. 345. In Vines, the court found first that a workman’s compensation insurance policy was a “policy or contract of ‘liability insurance’ ”:

The term “liability insurance” is applied to contracts which provide for indemnity against liability. Zieman v. United States Fidelity & Guaranty Co. of Baltimore, 214 Iowa 468, 238 N.W. 100. Liability insurance is that form of insurance by which the insured is indemnified against loss or liability on account of bodily injuries sustained by others, Cushing v. Maryland Casualty Company, (C.A. 5, 1962) 198 F.2d 536, or in a broader sense, against loss or liability on account of injuries to property. State ex rel. Travelers Indemnity Company v. Knott, 114 Fla. 820, 153 So. 304, 155 So. 115. A policy of liability insurance is a policy that indemnifies against the condition of becoming liable. Graves v. National Mutual Casualty Company, 164 Kan. 267, 188 P.2d 945; Dunn v. Jones, 143 Kan. 218, 53 P.2d 918.

267 F.Supp. at 437, The Vines court next found that a direct action against the insurer on the workmen’s compensation policy, allowed by Tennessee’s workmen’s compensation law, was a “direct action” within the meaning of the 1964 amendment. The court therefore held that it had no jurisdiction over a suit precisely analogous to the case at bar.

We agree with the reasoning of the Tennessee district court:

Congress intended that wherever a party claiming to have suffered injuries or damage for which another is legally responsible is entitled to sue the other’s liability insuror [sic] without joining the insured and without having first obtained a judgment against the insured, the insurer shall be deemed a citizen of the State of which the insured is a citizen as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business, for the purposes of determining whether diversity jurisdiction exists.

Vines, 267 F.Supp. at 438-439. We agree, too, that a workman’s compensation policy such as the one involved here is a “policy or contract of insurance” within the meaning of § 1332(c); and that an action such as this is a “direct action” within the meaning of that provision.

The appellee makes a single major argument in opposition to this conclusion. Travelers argues that Congress intended the 1964 amendment to be read in light of its history, and that it should therefore be limited by the conditions which led to its adoption. The 1964 amendment was a response to “direct action” statutes adopted in Louisiana and Wisconsin, allowing direct actions against liability insurers by persons injured in motor vehicle accidents. La.Rev.Stat. Ann. § 22:655 (1959); Wis.Stat. §§ 204.30(4), 260.11(1) (1963). The Supreme Court had held in Lumbermen’s Mutual Casualty Co. v. Elbert, 1954, 348 U.S. 48, 75 S.Ct. 151, 99 L.Ed. 59, that in actions brought under these statutes, diversity jurisdiction existed as long as there was diversity of citizenship between the injured claimant and the insurer, regardless of the citizenship of the insured. As a result of this decision, a large number of automobile accident cases were brought in the federal district courts in Louisiana, creating a considerable burden on the dockets of those courts, which in 1964 were the most crowded dockets in the nation. There is no doubt that the 1964 amendment was motivated by congressional concern over the crowded dockets in Louisiana. See S.Rep. 88-1308, in 1964 U.S. Code, Cong. & Admin.News pp. 2778, 2779-2784; 1 J. Moore, Federal Practice and Procedure ¶ 0.77 [4]; Weckstein, The 1964 Diversity Amendment: Congressional Indirect Action Against State “Direct Action” Laws, 1965 Wis.L.Rev. 268, 269-71. Reviewing this history, the appellee argues that Congress intended that the amendment should apply only to direct actions brought under statutes similar to the Wisconsin and Louisiana statutes — that is, statutes providing for direct actions in motor vehicle or in tort cases.

We cannot accept this argument. Whatever may have been the specific evil prompting congressional action in 1964, Congress chose to remove all direct actions from the diversity jurisdiction. The language of the statute is not subject to a limitation to motor vehicle cases, or to cases where the insured’s liability is imposed by tort law. See Vines, 267 F.Supp. at 438.

If Congress had wished to limit § 1332(c) to tort actions or had wished to exclude workmen’s compensation suits from § 1332, it would have been simple enough for it to have done so by appropriate language. Congress was familiar with the burden workmen’s compensation cases imposed on federal courts. In 1958 it enacted 28 U.S.C. § 1445 prohibiting the removal of “a civil action in any State court arising under the workmen’s compensation laws of such state”. The Judicial Conference of the United States had recommended passage of the statute; the work load of federal courts had “greatly increased because of the removal of workmen’s compensation cases from the State courts to the [district] courts”. Quoted in Sen.Rep. 1830, 85 Cong. 2nd Sess., U.S.Code Cong. & Admin.News p. 3105 (1958). Judge Estes ha's pointed out: “Workmen’s compensation cases arise and exist only by the virtue of state laws. No federal question is involved and no law of the United States is involved in these cases.” National Surety Corporation v. Chamberlain, N.D.Tenn.1959, 171 F.Supp. 591. In that case the district court held that the statute imposed a jurisdictional bar to an action by an insurance carrier brought in the federal district court to set aside án award of the Industrial Accident Board. This Court, in a later case, overruled Judge Estes’ ruling on the ground that it went beyond “the face of the act itself”. If the intent of Congress had been to withdraw these cases from federal jurisdiction, it would have said so by the simple insertion of the words “or filed in the United States District Courts”. Liberty Mutual Ins. Co. v. Horton, 5 Cir. 1960, 275 F.2d 148. The Supreme Court affirmed this Court in a five to four opinion, also stating: “In this situation, we must take the intent of Congress with regard to the filing of diversity cases in Federal District Courts to be that which its language clearly sets forth. Congress could very easily have used language to bar filing of workmen’s compensation suits by the insurer as well as the removal of such suits, and it could easily do so still.” Horton v. Liberty Mutual Ins. Co., 1961, 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890. Similarly, when the language of a congressional act is plain and specific, courts have no more license to shorten the reach of the act than to lengthen it.

Travelers also argues that the proviso to § 1332(c) does not apply because under Texas law, the injured employee is not allowed to sue his employer directly, but is instead relegated to an action against the insurer. His remedy is before the Texas Industrial Accident Board; and in judicial review proceedings after the board has acted, the parties are the employee and the insurer, not the employer. See Vernon’s Ann. Tex.Rev.Civ.Stat., art. 8306, § 3. This fact does not change our conclusion, however. Indeed, the Texas law goes further than a “direct action” statute, which simply permits a suit against the insurer, without joining the insured. The action in Texas against the insurer is still a “direct action”, as we conceive it; the workmen’s compensation context in Texas is still one where, in the words of the Vines court, “a party claiming to have suffered injuries or damage for which another is legally responsible is entitled to sue the other’s liability insur[e]r without joining the insured and without having first obtained a judgment against the insured”.

Beyond this, the appellee relies upon a number of cases holding the 1964 amendment inapplicable. All of these cases are inapposite. Two of them involved suits by the insured, not an injured party, against an insurer, seeking declaratory relief to determine the extent of coverage under a liability policy. Two others involved suits by either the insured or an injured party against the insurer, not on the primary liability, but for failure to settle within policy limits. Three others involved actions on uninsured motorists policies; these cases hold, correctly, that an uninsured motorists policy is not a “policy or contract of ‘liability insurance’ ”. The last, decided by the Eastern District of Tennessee, is a case holding the amendment inapplicable where an insured sued for the use and benefit of injured third parties.

Reversed and remanded with directions to dismiss the complaint.

      . White v. United States Fidelity & Guaranty Co., 1 Cir. 1966, 356 F.2d 746; Walker v. Fireman’s Fund Ins. Co., D.C.Mont.1966, 260 F.Supp. 95.

      . Adams v. State Farm Mutual Auto Ins. Co., N.D.Miss.1970, 313 F.Supp. 1349; Bishop v. Allstate Ins. Co., W.D.Ark.1970, 313 F.Supp. 875; Inman v. MFA Mutual Ins. Co., E.D.Ark.1967, 264 F.Supp. 727.

      . Carvin v. Standard Accident Ins. Co., D.C. Tenn.1966, 253 F.Supp. 232.

      . Bourget v. Government Employees Ins. Co., D.C.Conn.1970, 313 F.Supp. 367; Walker v. Fireman’s Fund Ins. Co., D.C.Mont.1966, 260 F.Supp. 95.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Harold Lee BAGSBY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Nathaniel ENDSLEY, Defendant-Appellant.
    Nos. 73-1944, 73-1945.
    United States Court of Appeals, Ninth Circuit.
    Dec. 13, 1973.
    Charles T. MeCutcheon, LaMesa, Cal., Kevin J. Mclnerney, San Diego, Cal., for defendant-appellant.

      Harry D. Steward, U. S. Atty., Lyn I. Goldberg, James Meyers, Asst. U. S. Attys., San Diego, Cal., for plaintiff-ap-pellde.
    Béfore CHOY and WALLACE, Circuit Judges, and CARR, District Judge.

       The Honorable Charles H. Carr, United States District Judge for the Central District of California, sitting by designation.

   OPINION

PER CURIAM:

Thife is a consolidated appeal from a judgment of conviction after a joint jury trial in which appellants Harold Lee Bags by and Nathaniel Endsley were found guilty of importation, possession with intent to distribute, and conspiracy to import and possess four ounces of heroin. Endsley alone was also found guilty of attempted importation of cocaine. Appellants were sentenced to three year terms on each count to run concurrently. We affirm.

Appellants were arrested at the San Ysidro, California port of entry as they were driving across the border from Mexico. After noticing appellants’ nervous behavior, customs officers ordered them to drive the car to a secondary inspection area. There the officers discovered beneath the car’s right rear ashtray two plastic bags of heroin and one bag of procaine (a cutting agent used to reduce the strength of hard narcotics). The officers also found a smaller quantity of procaine on the person of Endsley.

After thus searching and arresting appellants, the officers noticed one, Jes-see Newton, standing next to the car. Newton, who owned the car, had driven into Mexico with appellants but was walking across the border. When he saw his car being detained, Newton returned to the secondary inspection area. The officers then arrested Newton also.

Before trial, Newton’s case was severed from that of appellants. Thereafter, Newton incriminated appellants as to the purchase of the narcotics when he testified as a government witness.

Appellants raise several alleged errors, but only two related claims involving Newton’s cross-examination merit discussion. Appellants contend they were denied their Sixth Amendment right to confront former co-defendant Newton when the trial court restricted their cross-examination with respect to 1) a polygraph examination taken by Newton; and 2) Newton’s state parole status.

Newton apparently took a lie detector test, but the results were inconclusive since he neither passed nor failed the examination. Counsel for appellant Endsley nonetheless asked Newton about the results of that examination. Counsel, without laying a foundation as to any aspect of the alleged polygraph examination taken by Newton, cunningly asked the following as his first question to Newton on cross-examination: “Mr. Newton, with regard to your testimony in this ease, isn't it a fact that recently you were unable to pass a lie detector test?” The trial court sustained an objection to the question. Appellants claim that was error, not because the results of the tests impeached Newton’s veracity, but because the fact of his having taken the exam was relevant to his state of mind about deciding to testify. This attempts to add a new wrinkle to the use of polygraph examinations since whether Newton passed or failed the examination becomes irrelevant. Instead, the mere taking of the examination itself is advanced for the purpose of attacking credibility by inferring therefrom a motive to testify falsely.

We find no abuse of the trial court’s discretion in rejecting the introduction of the polygraph evidence. United States v. De Betham, 470 F.2d 1367, 1368 (9th Cir. 1972); United States v. Salazar-Gaeta, 447 F.2d 468, 469 (9th Cir. 1971); United States v. Sadrzadeh, 440 F.2d 389, 390 (9th Cir. 1971).

Appellants contend that precluding inquiry into Newton’s state parole status also deprived them of their right to confront this witness against them. Since Newton’s motive in becoming á government witness was not only to avoid prosecution, but also to avoid revocation of his state parole, appellants maintain they should have been able to cross-examine him about the latter. It is well established that the scope and extent of cross-examination is within the trial court’s sound discretion. Smith v. Illinois, 390 U.S. 129, 132, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968); United States v. Haili, 443 F.2d 1295, 1299 (9th Cir. 1971); Beck v. United States, 298 F.2d 622, 629 (9th Cir. 1962). However, when the witness is an accomplice, wide latitude in cross-examination is generally allowed in order to give opposing counsel the maximum opportunity to test the witness’ credibility by exploring his motivations for testifying. Gordon v. United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447 (1953); United States v. Rodriguez, 439 F.2d 782, 783 (9th Cir. 1971); Thurman v. United States, 316 F.2d 205, 206 (9th Cir. 1963).

Newton was cross-examined thoroughly about his motives and expectations in becoming a government witness. Twice he admitted that although the government had made no promises, he was hoping that the federal indictment against him would be dismissed in return for his testimony. The only inquiry foreclosed on cross-examination occurred after Newton admitted being on parole from the California Youth Authority and the trial court allowed no further questions regarding his state parole. Appellants were given a full opportunity, however, to argue to the jury concerning Newton’s motives as to both expectations that federal charges would be dismissed and that state parole would not be revoked. “We therefore hold that there was no prejudicial error in the ev-identiary ruling which is challenged, although at the same time, we reiterate our opinion that wide latitude in the right of cross-examination should always be afforded.” Ray v. United States, 412 F.2d 1052, 1055 (9th Cir. 1969); See Singleton v. United States, 381 F.2d 1, 4 (9th Cir. 1967); Harris v. United States, 371 F.2d 365, 367 (9th Cir. 1967).

Since the sentences are concurrent we do not reach appellant Endsley’s other contentions concerning the attempt to import cocaine. United States v. Moore, 452 F.2d 576 (9th Cir. 1971).

Affirmed.

      . There is no evidence in the record that Newton took a polygraph exam. The only corroboration is contained in the government’s brief where it is stated that according to Newton’s attorney, Newton did take such an examination.


text:
    Sheldon Louis POLAKOFF, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-1483
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 14, 1974.
    Rehearing and Rehearing En Banc Denied March 12, 1974.

      Samuel S. Forman, Miami, Fla. (Court-appointed), for petitioner-appellant.
    Robert W. Rust, U. S. Atty., Miami, Fla., for respondent-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   WISDOM, Circuit Judge:

In this § 2255 case, Sheldon Louis Po-lakoff seeks to void his conviction for fraud by wire and mail fraud. He challenges the legality of the search of his office-warehouse and the seizure of his records. He also seeks credit against his sentence for time spent free on a highly restricted bond. In denying the petition, the district court held that the challenged search was reasonable as incident to a valid arrest, and that even had it been unreasonable, Polakoff had not been prejudiced by it, since nothing taken from his office-warehouse was introduced in evidence at the trial. The court also questioned Polakoff’s standing to object to the search, since title to the records seized had passed to a trustee in bankruptcy prior to the arrest. Finally, the district court concluded that, as in the case of time spent on parole, time spent free on bond is not time “in custody” and will not be credited against a prisoner’s sentence. We affirm.

On the morning of March 21, 1968, Polakoff was served with a subpoena and an involuntary petition in bankruptcy. The petition pertained, at least in part, to an office-warehouse Polakoff maintained under the name of Discount Faire at 1035 East 13th Street, Hileah, Florida. At the same time, the district court appointed a receiver to take charge of Polakoff’s assets. That afternoon, while at the 13th Street property, Polakoff was arrested on a warrant issued on a mail fraud complaint. The building was searched and its contents inventoried by agents of the Federal Bureau of Investigation. The search was made without a warrant, but with the consent of the receiver’s attorney.

In January 1970 Polakoff was tried and convicted of mail fraud and fraud by wire, violations of Title 18, United States Code, Sections 1341 and 1343, respectively. Nothing seized in the FBI’s search of Polakoff’s business premises was introduced in evidence at the trial. He was sentenced to five years imprisonment, but was released on bond pending appeal, until his conviction was affirmed by this Court in United States v. Pollack a/k/a Polakoff, 5 Cir. 1970, 433 F.2d 967.

To the appellant’s assertion that the search of his office and warehouse was unreasonable, the Government makes three replies. The first — that none of the material seized was introduced at trial and that there was an independent basis for all of the Government’s evidence — we need not consider, since we hold that the search was reasonable, and that the evidence could properly have been admitted. Next, the Government asserts that Polakoff has no standing to challenge the constitutionality of the search, because Title 11, United States Code, Section 110 stipulates that once the bankruptcy petition is filed, title to the bankrupt’s records passed to the bankruptcy court, and subsequently to the trustee in bankruptcy. In re American Southern Publishing Co., 5 Cir. 1970, 426 F.2d 160, 163, cert. denied sub nom., Bailes v. First National Bank of Mobile, 400 U.S. 903, 91 S.Ct. 141, 27 L. Ed.2d 140; Kohn v. Myers, 2 Cir. 1959, 266 F.2d 353, 355. In light of our con-elusion that the search and seizure of Polakoff’s records were reasonable, it is not essential that we reach this standing question either, but we decline to rest our decision on that basis. We assume, without deciding, that Kroll v. United States, 5 Cir. 1970, 433 F.2d 1282, 1288-1289, cert. denied, 402 U.S. 944, 91 S.Ct. 1618, 29 L.Ed.2d 112, which denied standing to a bankrupt defendant whose records were actually on the premises of the trustee when seized, would not bar standing where, as here, a petition is filed and a receiver appointed the same day that a warrantless search is conducted on the bankrupt’s premises. To assume the contrary, would permit the use of section 110 as a device to exempt a significant class of warrantless searches from constitutional challenge.

We hold that the search was reasonable. In Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, the Supreme Court limited the permissible scope of warrantless searches incident to a lawful arrest to the area within reach of the arrestee. Here, however, the search in question occurred before that case was decided, so pre-Chimel standards must apply. Williams v. United States, 1971, 401 U. S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388. The pre-Chimel eases simply inquire whether the search was reasonable, giving considerable weight to the district court’s determination of the question. When a valid arrest has been effected, these decisions would authorize a search incident to that arrest which extends beyond the person of the defendant to the surrounding premises under his immediate control, including rooms other than that in which he was arrested. United States v. Rabinowitz, 1950, 339 U.S. 56, 63, 70 S.Ct. 430, 434, 94 L.Ed. 653, 659; Harris v. United States, 1947, 331 U.S. 145, 150-152, 67 S.Ct. 1098, 1101-1102, 91 L.Ed. 1399, 1405-1406. It was such a search that the district court determined to be reasonable here; the appellant has cited no authority which persuades us that the district court’s determination should be altered. In short, we cannot say that the search of Polakoff’s office-warehouse, the place where he was arrested, was unreasonable under the pr e-Chimel cases.

The appellant’s second contention is that he is entitled to sentence credit for the period he spent on highly restricted bond between the time of his arrest and our affirmance of his conviction. He maintains that Title 18, United States Code, Section 3568, which allows credit against sentence for time spent “in .custody”, applies to time he spent free on bond, since he was under travel and social restrictions and was required to report weekly to a probation officer. This, he insists, is “custody”, citing the recent decision of the United States Supreme Court in Hensley v. Municipal Court, 1973, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294. We find this argument to be without merit.

The “custody” contemplated by Section 3568 is that characterized by incarceration; a federal sentence does not begin to run, and credit thus accrue, until the prisoner is received at the place of imprisonment. Scott v. United States, 5 Cir. 1970, 434 F.2d 11, 21 (per curiam). Polakoff, in effect, seeks a determination that he was “serving time” while free on bond, merely because he was under restrictions. We must agree with the Ninth Circuit that “[t]here is no reason for treating time spent on bail as jail time”. Sica v. United States, 9 Cir. 1971, 454 F.2d 281, 282 (per curiam).

The Supreme Court’s decision in Hensley v. Municipal Court, supra, does not compel a contrary conclusion. Hensley stands for the limited proposition that a state prisoner who has exhausted his state remedies and has been released on his own recognizance pending application for federal relief is “in custody” within the meaning of the federal habeas corpus statute, Title 28, United States Code, Sections 2241(c)(3) and 2254(a) . Nothing in the opinion intimates an intention to allow federal prisoners sentence credit for time spent free on bond; by its very terms the decision is a limited one. See Cochran v. United States, 5 Cir. 1974, 489 F.2d 691, which reaches a similar conclusion.

Accordingly, the decision appealed from is Affirmed.

      . Kroll held that a defendant did not have standing to challenge the constitutionality of a search of the records of a corporation of which he was sole shareholder, when the records were in the possession of a trustee. 433 F.2d at 1288. It is beyond dispute that the bankruptcy laws vest title to the property of the bankrupt in the trustee as of the date of the bankruptcy petition, although the trustee may not be appointed until months later. 11 U.S.C. § 110(a) (1970). Yet it can hardly be Kroll’s holding that the moment a petition is filed an allegedly bankrupt defendant forfeits any right to challenge an unconstitutional search of his premises or seizure of his property. The search in Kroll occurred a full year and one-half after the trustee had taken physical possession of the bankrupt’s records and removed them to the trustee’s premises. Furthermore, the court was emphatic in concluding that “no area in which [the bankrupt] had an interest was violated”. 433 F.2d at 1289. Moreover, the court stressed the fact that corporate rather than personal records were involved in the seizure. Finally, the court suggested (but did not endorse) a view that the consent of a receiver to a search may not have the same impact on a bankrupt’s standing as will the permission of a trustee. Id. Here, the receiver’s attorney apparently gave his permission for the search within hours after Polakoff was served with the petition, and months before a trustee was even appointed. The records seized were allegedly personal as well as business-related, were still on the premises of the bankrupt, and were in an area in which, until a few hours before, at least, he had had a clear interest. The applicable standard is more properly found in Jones v. United States, 1960, 362 U.S. 257, 267, 80 S.Ct. 725, 734, 4 L.Ed.2d 697, 706:
      No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a seaeh occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him.

      . Section 3568 provides, in pertinent part:
      The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.

      . Section 2241(c)(3), the provision which extends federal habeas relief to state prisoners, requires that a petitioner be “in custody” before federal jurisdiction will attach. See also 28 U.S.C. § 2254(a).

      . As the Court observed:
      Finally, we emphasize that our decision does not open the doors of the district courts to the habeas corpus petitions of all persons released on bail or on their own recognizance. We are concerned here with a petitioner who has been convicted in state court and who has apparently exhausted all available state court opportunities to have that conviction set aside. .
      411 U.S. at 353, 93 S.Ct. at 1575-1576, 36 L.Ed.2d at 301.


text:
    Thomas ALFIERI, Appellant, v. GENERAL MOTORS CORPORATION, Appellee.
    No. 103, Docket 73-1833.
    United States Court of Appeals, Second Circuit.
    Argued Dee. 3, 1973.
    Decided Dec. 7, 1973.
    James C. Heaney, Buffalo, N. Y., for appellant.
    Arnold Weiss, Buffalo, N. Y. (Raichle, Banning, Weiss & Halpern, Buffalo, N. Y., on the brief), for appellee.
    Before WATERMAN and FEINBERG, Circuit Judges, and GURFEIN, District Judge.

       Of the United States District Court for the Southern District of New York, sitting by designation.

   PER CURIAM:

Thomas Alfieri appeals from an order of the United States District Court for the Western District of New York, John T. Curtin, J., granting summary judgment for defendant General Motors Corporation and dismissing Alfieri’s complaint, which sought restoration of employment benefits for the 18 months during which he alleges he was wrongfully denied reemployment. We affirm, substantially for the reasons given in Judge Curtin’s opinion. 367 F.Supp. 1393 (W.D.N.Y.1973).


text:
    Melvyn Monroe BROWN, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellee.
    No. 73-3665
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 19, 1974.
    John R. Lawson, Jr., Tampa, Fla. (Court-appointed), for petitioner-appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Baya Harrison III, Asst. Atty. Gen., Tampa, Fla., for respondent-appellee.
    Henry E. Williams, Jr., City Atty., Gerald H. Bee, Asst. City Atty., Tampa, Fla., amicus curiae for Halloway and Baker.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

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

   PER CURIAM:

The sole issue in this habeas corpus appeal is the timeliness of the application for a search warrant. The District Court denied relief. This subject was fully explored in Bastida v. Henderson, [1973] 5th Cir., 487 F.2d 860. Upon the authority of Bastida, the judgment of the District Court is Affirmed.


text:
    RAYMOND INTERNATIONAL, INC., a corporation, Plaintiff, v. BOOKCLIFF CONSTRUCTION, INC., a corporation, Defendant-Appellant, v. METROPOLITAN UTILITIES DISTRICT, Third Party Defendant-Appellee.
    No. 73-1485.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 14, 1974.
    Decided Feb. 1, 1974.
    Leo Eisenstatt, Eisenstatt, Higgins, Kinnamon & Okun, Omaha, Neb., for defendant-appellant.
    W. L. Strong, Asst. Gen. Counsel, Metropolitan, Utilities District, Omaha, Neb., for third party defendant-appellee.
    Before MATTHES, Senior Circuit Judge, HEANEY, Circuit Judge, and SMITH, Senior District Judge.

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

   PER CURIAM.

Raymond International, Inc., a New Jersey corporation, filed this lawsuit against Bookcliff Construction, Inc., a Colorado corporation, seeking to recover the amount due under a construction contract involving a well field water collection system for Metropolitan Utilities District’s (MUD) Platte River Water Treatment Plant. Bookcliff filed a third party complaint against MUD and prayed that judgment be rendered in its favor in any amount adjudged to be due from Bookcliff to plaintiff; and also for damages resulting from flooding of the project which was the subject of the construction contract. The controversy between Raymond International and Bookcliff was settled. The third party claim was tried before the court, which found the issues in favor of MUD and from the ensuing judgment Bookcliff has appealed.

We have considered appellant’s contentions and find them lacking sufficient substance to warrant interference with the district court’s soundly reasoned opinion, which is reported at 347 F. Supp. 208 (D.Neb.1972).

Accordingly, we affirm.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ADVANCE CARBON PRODUCTS, INC., Respondent.
    No. 72-3116.
    United States Court of Appeals, Ninth Circuit.
    Jan. 28, 1974.
    Marcel Mallet-Prevost, Asst. Gen. Counsel, William Gaus (Argued), NLRB, Washington, D. C., Roy O. Hoffman, Director, Region 20, NLRB, San Francisco, Cal., for petitioner.
    Charles S. Loughran, Robert M. Cas-sel, San Francisco, Cal. (Argued), Miller, Groezinger, Pettit & Evers, San Francisco, Cal., for respondent.
    Alan C. Davis, Davis, Cowell & Bowe, San Francisco, Cal., for charging party, IBEW Local 1969.
    Before CARTER and GOODWIN, Circuit Judges, and SOLOMON, District Judge.

       Honorable Gus J. Solomon, Senior United States District Judge, for the District of Oregon, sitting by designation.

   ORDER

The application of the National Labor Relations Board for the enforcement of its Order is granted. The Board’s Order appears in 198 N.L.R.B. 105.

The Board will prepare the necessary Order.