text:
    BOSTON PROFESSIONAL HOCKEY ASSOCIATION, INC., et al., Plaintiffs-Appellants, v. DALLAS CAP & EMBLEM MFG., INC., Defendant-Appellee.
    No. 73-2592.
    United States Court of Appeals, Fifth Circuit.
    April 7, 1975.
    Rehearing Denied June 4, 1975.

      Ernest E. Figari, Jr., Dallas, Tex., Anthony L. Fletcher, New York City, for plaintiffs-appellants.
    J. Manuel Hoppenstein, William D. Harris, Jr., Roger C. Clapp, Dallas, Tex., for defendant-appellee.
    Before BROWN, Chief Judge, and GODBOLD and RONEY, Circuit Judges.
   RONEY, Circuit Judge:

Nearly everyone is familiar with the artistic symbols which designate the individual teams in various professional sports. The question in this case of first impression is whether the unauthorized, intentional duplication of a professional hockey team’s symbol on an embroidered emblem, to be sold to the public as a patch for attachment to clothing, violates any legal right of the team to the exclusive use of that symbol. Contrary to the decision of the district court, we hold that the team has an interest in its own individualized symbol entitled to legal protection against such unauthorized duplication.

The National Hockey League (NHL) and thirteen of its member hockey teams brought this action to enjoin Dallas Cap & Emblem Manufacturing, Inc., from manufacturing and selling embroidered emblems depicting their trademarks. All plaintiffs assert a cause of action for common law unfair competition. The NHL and twelve of the plaintiff teams have secured federal registration of their team symbols as service marks for ice hockey entertainment services and seek relief under both provisions of the Lanham Act, 15 U.S.C.A. §§ 1114, 1125, which give statutory protection to such marks. The Toronto team has not secured federal registration of its symbol and, thus, has not alleged a cause of action against defendant for infringement of a registered mark under 15 U.S. C.A. § 1114, but is restricted to § 1125 which can encompass unregistered marks. The Vancouver team did not secure registration until after the alleged infringing act and has sued only for injunctive relief under § 1114, not for damages. None of the symbols of the various teams have been copyrighted.

The district court denied Lanham Act relief and granted only limited relief for unfair competition, requiring solely that defendant place on the emblems or the package a notice that the emblems are not authorized by or have not emanated from the plaintiffs. The claim for damages was denied.

The Facts

The controlling facts of the case at bar are relatively uncomplicated and uncontested. Plaintiffs play ice hockey professionally. In producing and promoting the sport of ice hockey, plaintiffs have each adopted and widely publicized individual team symbols. During the 1971-72 season, more than eight million fans attended NHL games where they saw the team marks displayed on the jersey-fronts of the players and throughout the game programs. For each game on national television, between ten and twenty million hockey enthusiasts saw plaintiffs’ marks. Other fans observed the team marks during more than 300 locally televised games a season and on a weekly television series entitled “National Hockey League Action” which is syndicated in over 100 markets. These figures do not include the millions who were exposed to plaintiffs’ marks through sporting news coverage in newspapers, magazines and on television.

Plaintiffs have authorized National Hockey League Services, Inc. (NHLS) to act as their exclusive licensing agent. NHLS has licensed various manufacturers to use the team symbols on merchandise and has granted to one manufacturer, Lion Brothers Company, Inc., the exclusive license to manufacture embroidered emblems depicting the marks in question. In the spring of 1972, NHLS authorized the sale of NHL team emblems in connection with the sale of Kraft candies. That promotion alone was advertised on more than five million bags of candy.

Defendant Dallas Cap & Emblem Manufacturing, Inc., is in the business of making and selling embroidered doth emblems. In August of 1968 and June of 1971, defendant sought to obtain from NHLS an exclusive license to make embroidered emblems representing the team motifs. Although these negotiations were unsuccessful, defendant went ahead and manufactured and sold without authorization emblems which were substantial duplications of the marks. During the month of April 1972, defendant sold approximately 24,603 of these emblems to sporting goods stores in various states. Defendant deliberately reproduced plaintiffs’ marks on embroidered emblems and intended the consuming public to recognize the emblems as the symbols of the various hockey teams and to purchase them as such.

The Law

The complaint alleged that defendant’s manufacture and sale of the team symbols constitutes (1) an infringement of the plaintiffs’ registered marks in violation of 15 U.S.C.A. § 1114; (2) false designation of origin in violation of 15 U.S.C.A. § 1125; and (3) common law unfair competition.

The statutory cause of action emanates from what is commonly called the Lanham Act. 15 U.S.C.A. § 1051 et seq. The Lanham Act defines a service mark as “a mark used in the sale or advertising of services to identify the services of one person and distinguish them from the services of others” and a trademark as “any word, name, symbol, or device or any combination thereof adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others.” 15 U.S.C.A. § 1127. Service mark infringement and trademark infringement are governed by identical standards. The terms can be used interchangeably when the marks are both service marks and trademarks. For convenience we use the word trademark in this opinion to designate both service mark and trademark use of the symbols involved.

A cause of action for the infringement of a registered mark in violation of 15 U.S.C.A. § 1114 exists where a person uses (1) any reproduction, counterfeit, copy or colorable imitation of a mark; (2) without the registrant’s consent; (3) in commerce; (4) in connection with the sale, offering for sale, distribution or advertising of any goods; (5) where such use is likely to cause confusion, or to cause mistake or to deceive. A broadening of the protection afforded by the statute occurred by amendment in 1962 which deleted the previously existing requirement that the confusion or deception must relate to the “source of origin of such goods or service.” Pub.L. 87-772, § 17, 76 Stat. 773 (1962). Continental Motors Corp. v. Continental Aviation Corp., 375 F.2d 857, 860 at n. 8 (5th Cir. 1967).

While this Court has rejected the view that the Lanham Act brought all claims of unfair competition in interstate commerce within the federal question jurisdiction of the federal courts, Royal Lace Paper Works, Inc. v. Pest-Guard Products, Inc., 240 F.2d 814 (5th Cir. 1957), this Court has recognized that 15 U.S.C.A. § 1125 creates a federal cause of action for false representation of goods or services in commerce. American Heritage Life Ins. Co. v. Heritage Life Ins. Co., 494 F.2d 3 (5th Cir. 1974); Alum-A-Fold Shutter Corp. v. Folding Shutter Corp., 441 F.2d 556 (5th Cir. 1971). The statute is broadly worded and proscribes not only “a false designation of origin” but also the use of “any false description or representation, including words or other symbols tending falsely to describe or represent . goods or services” in commerce. The use of an unregistered trademark can constitute a violation of § 1125 where

the alleged unregistered trademarks used by the plaintiff are so associated with its goods that the use of the same or similar marks by another company constitutes a representation that its goods come from the same source.

Joshua Meier Co. v. Albany NoveltMfg. Co., 236 F.2d 144, 147 (2nd Cir. 1956). See Sutton Cosmetics, Inc. v. Lander Co., 455 F.2d 285 (2nd Cir. 1972); Federal-Mogul-Bower Bearings, Inc. v. Azoff, 313 F.2d 405 (6th Cir. 1963); State of Florida v. Real Juices, Inc., 330 F.Supp. 428 (M.D.Fla.1971); Scarves by Vera, Inc. v. United Merchants & Manufacturers, Inc., 173 F.Supp. 625 (S.D.N.Y.1959). See also Hesmer Foods, Inc. v. Campbell Soup Co., 346 F.2d 356 (7th Cir. 1965). See generally I. R. Callman, Unfair Competition, Trademarks and Monopolies § 18.2(b) (1967). Under § 1125, the registration of a mark is not a prerequisite of recovery as it is under § 1114.

Unfair competition is a broader area of the law than statutory trademark infringement. B. H. Bunn Co. v. AAA Replacement Parts Co., 451 F.2d 1254 (5th Cir. 1971). Unfair competition is almost universally regarded as a question of whether the defendant is passing off his goods or services as those of the plaintiff by virtue of substantial similarity between the two, leading to confusion on the part of potential customers. Volks wagenwerk Aktiengesellschaft v. Rickard, 492 F.2d 474, 478 (5th Cir. 1974). As stated in American-Marietta Co. v. Krigsman, 275 F.2d 287 (2nd Cir. 1960),

The whole basis of the law of “unfair competition” ... is that no one shall sell his goods in such a way as to make it appear that they come from some other source. The simplest form of this is to use the name or trademark of another, but the law goes further than that.

275 F.2d at 289. As a general rule, therefore, the same facts which would support an action for trademark infringement would also support an action for unfair competition.

The Case

The difficulty with this case stems from the fact that a reproduction of the trademark itself is being sold, unattached to any other goods or services. The statutory and case law of trademarks is oriented toward the use of such marks to sell something other than the mark itself. The district court thought that to give plaintiffs protection in this case would be tantamount to the creation of a copyright monopoly for designs that were not copyrighted. The copyright laws are based on an entirely different concept than the trademark laws, and contemplate that the copyrighted material, like patented ideas, will eventually pass into the public domain. The trademark laws are based on the needed protection of the public and business interests and there is no reason why trademarks should ever pass into the public domain by the mere passage of time.

Although our decision here may slightly tilt the trademark laws from the purpose of protecting the public to the protection of the business interests of plaintiffs, we think that the two become so intermeshed when viewed against the backdrop of the common law of unfair competition that both the public and plaintiffs are better served by granting the relief sought by plaintiffs.

Underlying our decision are three persuasive points. First, the major commercial value of the emblems is derived from the efforts of plaintiffs. Second, defendant sought and ostensibly would have asserted, if obtained, an exclusive right to make and sell the emblems. Third, the sale of a reproduction of the trademark itself on an emblem is an accepted use of such team symbols in connection with the type of activity in which the business of professional sports is engaged. We need not deal here with the concept of whether every artistic reproduction of the symbol would infringe upon plaintiffs’ rights. We restrict ourselves to the emblems sold principally through sporting goods stores for informal use by the public in connection with sports activities and to show public allegiance to or identification with the teams themselves.

As to 15 U.S.C.A. § 1114.

Plaintiffs indisputably have established the first three elements of a § 1114 cause of action. Plaintiffs’ marks are validly registered and defendant manufactured and sold emblems which were (1) substantial duplications of the marks, (2) without plaintiffs’ consent, and (3) in interstate commerce. The issue is whether plaintiffs have proven elements four and five of an action for mark infringement under the Lanham Act, i. e., whether the symbols are used in connection with the sale of goods and whether such use is likely to cause confusion, mistake or deception.

The fourth requisite of a § 1114 cause of action is that the infringing use of the registered mark must be in connection with the sale, offering for sale, distribution or advertising of any goods. Although the district court did not expressly find that plaintiffs had failed to establish element four, such a finding was implicit in the court’s statement that “in the instant case, the registered trade mark is, in effect, the product itself.”

Defendant is in the business of manufacturing and marketing emblems for wearing apparel. These emblems are the products, or goods, which defendant sells. When defendant causes plaintiffs’ marks to be embroidered upon emblems which it later markets, defendant uses those marks in connection with the sale of goods as surely as if defendant had embroidered the marks upon knit caps. See Boston Professional Hockey Association, Inc. v. Reliable Knitting Works, Inc., 178 USPQ 274 (E.D.Wis.1973). The fact that the symbol covers the entire face of defendant’s product does not alter the fact that the trademark symbol is used in connection with the sale of the product. The sports fan in his local sporting goods store purchases defendant’s fabric and thread emblems because they are embroidered with the symbols of ice hockey teams. Were defendant to embroider the same fabric with the same thread in other designs, the resulting products would still be emblems for wearing apparel but they would not give trademark identification to the customer. The conclusion is inescapable that, without plaintiffs’ marks, defendant would not have a market for his particular product among ice hockey fans desiring to purchase emblems embroidered with the symbols of their favorite teams. It becomes clear that defendant’s use of plaintiffs’ marks is in connection with the sale, offering for sale, distribution, or advertising of goods and that plaintiffs have established the fourth element of a § 1114 cause of action.

The fifth element of a cause of action for mark infringement under 15 U.S.C.A. § 1114 is that the infringing use is likely to cause confusion, or to cause mistake or to deceive. The district court decided that there was no likelihood of confusion because the usual purchaser, a sports fan in his local sporting goods store, would not be likely to think that defendant’s emblems were manufactured by or had some connection with plaintiffs. Cf. Sun-Maid Raisin Growers of California v. Sunaid Food Products, Inc., 356 F.2d 467 (5th Cir. 1966). This court has held that the findings of a district court as to likelihood of confusion are factual and not to be overturned unless clearly erroneous. Hang Ten International v. Sherry Manufacturing Co., 498 F.2d 326 (5th Cir. 1974); American Foods, Inc. v. Golden Flake, Inc., 312 F.2d 619 (5th Cir. 1963). In this case, however, the district court overlooked the fact that the act was amended to eliminate the source of origin as being the only focal point of confusion. The confusion question here is conceptually difficult. It can be said that the public buyer knew that the emblems portrayed the teams’ symbols. Thus, it can be argued, the buyer is not confused or' deceived. This argument misplaces the purpose of the confusion requirement. The confusion or deceit requirement is met by the fact that the defendant duplicated the protected trademarks and sold them to the public knowing that the public would identify them as being the teams’ trademarks. The certain knowledge of the buyer that the source and origin of the trademark symbols were in plaintiffs satisfies the requirement of the act. The argument that confusion must be as to the source of the manufacture of the emblem itself is unpersuasive, where the trademark, originated by the team, is the triggering mechanism for the sale of the emblem.

The plaintiffs, with the exception of Toronto, have satisfied all elements of a cause of action for mark infringement in violation of 15 U.S.C.A. § 1114. Plaintiffs are entitled to an injunction permanently enjoining defendant from the manufacture and sale, in interstate commerce, of emblems embroidered with substantial duplications of plaintiffs’ marks without plaintiffs’ consent, and such other relief as might flow from the facts.

As to 15 U.S.C.A. § 1125.

The district court held that plaintiffs failed to prove a cause of action under 15 U.S.C.A. § 1125 for false designation of origin of the goods in question or for false description by means of symbols. Because all plaintiffs, with the exception of Toronto, have established a cause of action for registered mark infringement, the district court’s decision in regard to a § 1125 cause of action only affects plaintiff Toronto. The district court based its denial of a § 1125 cause of action on two findings of fact: (1) there was no likelihood of confusion as to the source of the emblems and (2) defendant did not make any false representations concerning the origin of the emblems. Our decision that confusion is self-evident from the nature of defendant’s use of plaintiffs’ marks applies with equal force in plaintiff Toronto’s case. We reverse.

On appeal, defendant does not contest that the facts establish the use necessary to give Toronto service mark protection. Defendant simply argues that the mere imitation of a product cannot constitute a false designation of origin or a false representation concerning goods in commerce under § 1125.

In the case sub judice, defendant did not merely copy a product of the Toronto team. Defendant reproduced Toronto’s common law mark on embroidered emblems with the intent that the public recognize and purchase the emblems as the symbol of the Toronto team. In the language of § 1125, defendant used a symbol, Toronto’s mark, which tended falsely to represent goods, the embroidered emblems, in commerce. Where the consuming public had the certain knowledge that the source and origin of the trademark symbol was in the Toronto team, the reproduction of that symbol by defendant constituted a violation of § 1125.

To warrant injunctive relief under § 1125, a plaintiff must demonstrate that the false representations have a tendency to deceive the consumer. Geisel v. Poynter Products, Inc., 283 F.Supp. 261 (S.D.N.Y.1968). Our decision that defendant’s use of plaintiffs’ marks entails a likelihood of confusion under § 1114 establishes that defendant’s identical use of Toronto’s mark constitutes a false representation under § 1125. See Girl Scouts v. Personality Posters Mfg. Co., 304 F.Supp. 1228 (S.D.N.Y.1969). Accordingly, we reverse the decision of the district court and hold that Toronto has established a cause of action under 15 U.S.C.A. § 1125.

As to Unfair Competition.

Although the district court denied plaintiffs relief under the applicable provisions of the Lanham Act, the court found that the actions of defendant constituted unfair competition. The court stated that defendant’s use of plaintiffs’ marks had “. . . the prospect of trading on the competitive advantage the mark originator has to the public which desires the ‘official’ product.” Unfair competition is a question of fact, Yolkswagenwerk Aktiengesellschaft v. Rickard, 492 F.2d 474 (5th Cir. 1974). Our review is narrowly circumscribed by F.R.Civ.P. 52(a). We find that there is substantial evidence which reflects that defendant competed unfairly with plaintiffs and, accordingly, we affirm the decision of the district court in this regard.

The unfair competition cannot, however, be rendered fair by the disclaimer ordered by the district court. The exact duplication of the symbol and the sale as the team’s emblem satisfying the confusion requirement of the law, words which indicate it was not authorized by the trademark owner are insufficient to remedy the illegal confusion. Only a prohibition of the unauthorized use will sufficiently remedy the wrong.

Additional Defenses to Relief

Defendant makes two arguments against an extension of Lanham Act protection to plaintiffs which need consideration. Adopting the district court’s rationale, defendant asserts first, that plaintiffs’ marks when embroidered on emblems for wearing apparel are functional and, thus, serve no trademark purpose and, second, that there is some overriding concept of free competition which, under the instant facts, would remove plaintiffs from the protective am-bits of the Lanham Act.

The short answer to defendant’s arguments is that the emblems sold because they bore the identifiable trademarks of plaintiffs. This fact clearly distinguishes the case from Pagliero v. Wallace China Co., 198 F.2d 339 (9th Cir. 1952), relied upon by the district court. Pagliero involved designs on chinaware which were neither trademarked, patented nor copyrighted. The court found no unfair competition on the ground that the designs were functional, that is, they connoted other than a trademark purpose. “The attractiveness and eye-appeal of the design sells the china,” 198 F.2d at pp. 343-344, not the trademark character of the designs. In the case at bar, the embroidered symbols are sold not because of any such aesthetic characteristic but because they are the trademarks of the hockey teams. Those cases which involved utilitarian articles such as pole lamps, Sears, Roebuck & Co. v. Stiff el Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), fluorescent lighting fixtures, Compeo Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964) and toggle clamps, West Point Mfg. Co. v. Detroit Stamping Co., 222 F.2d 581 (6th Cir. 1955), all involved products which had a consumer demand regardless of their source or origin. The principles involved in those cases are not applicable to a trademark symbol case where the design or symbol has no demonstrated value other than its significance as the trademark of a hockey team.

The argument that the symbols could be protected only if copyrighted likewise misses the thrust of trademark protection. A trademark is a property right which is acquired by use. Trade-Mark Cases, 100 U.S. 82 (1879). It differs substantially from a copyright, in both its legal genesis and its scope of federal protection. The legal cornerstone for the protection of copyrights is Article I, section 8, clause 8 of the Constitution. In the case of a copyright, an individual creates a unique design and, because the Constitutional fathers saw fit to encourage creativity, he can secure a copyright for his creation for a period of 28 years, renewable once. After the expiration of the copyright, his creation becomes part of the public domain. In the case of a trademark, however, the process is reversed. An individual selects a word or design that might otherwise be in the public domain to represent his business or product. If that word or design comes to symbolize his product or business in the public mind, the individual acquires a property right in the mark. The acquisition of such a right through use represents the passage of a word or design out of the public domain into the protective ambits of trademark law. Under the provisions of the Lanham Act, the owner of a mark acquires a protectable property interest in his mark through registration and use.

The time limit on copyright protection not being sufficient for plaintiffs’ purposes, they acquainted the public with their marks and thereby created a demand for those marks. Through extensive use, plaintiffs have acquired a property right in their marks which extends to the reproduction and sale of those marks as embroidered patches for wearing apparel. What plaintiffs have acquired by use, the substantive law of trademarks as it is embodied in the Lanham Act will protect against infringement. There is no overriding policy of free competition which would remove plaintiffs, under the facts of this case, from the protective ambits of the Lanham Act.

Defendant argues to us that the district court decision can be sustained on an alleged antitrust defense. The district court considered the antitrust defense solely in connection with plaintiffs’ unfair competition claim and held that defendant had failed to prove that plaintiffs had used their marks in violation of the antitrust laws. Accordingly, the district court drew an order striking defendant’s antitrust defense, at least insofar as defendant asserted the defense against the unfair competition action. The district court did not reach this defense in connection with the Lanham Act claim, and neither do we. There has been no cross-appeal from the order of the district court striking the defense as asserted against the unfair competition cause of action, and since we affirm the finding of unfair competition and direct only a change in the relief that should have been provided, as to that cause of action the matter is evidently not still open for litigation. Nevertheless, we leave these matters for the district court to unravel on a remand of this case for such further proceedings as are consistent with this opinion.

Reversed and remanded.

      . Boston Professional Hockey Association, Inc. (Boston Bruins); Niagara Frontier Hockey Corporation (Buffalo Sabres); Charles O. Finley & Company, Inc. (California Golden Seals); ■ Chicago Blackhawk Hockey Team, Inc. (Chicago Black Hawks); The Detroit Hockey Club, Inc. (Detroit Red Wings); California Sports Incorporated (Los Angeles Kings); Northstar Financial Corporation (Minnesota North Stars); Madison Square Garden Corporation (New York Rangers); The Philadelphia Hockey Club, Inc. (Philadelphia Flyers); Pittsburgh Penguin Partners (Pittsburgh Penguins); Missouri Arena Corporation (St. Louis Blues); Maple Leaf Gardens, Limited (Toronto Maple Leafs); Medical Investment Corporation (Vancouver Canucks).

      . 15 U.S.C.A. § 1114 reads in pertinent part:
      (1) Any person who shall, without the consent of the registrant—
      (a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive;
      shall be liable in a civil action by the registrant for the remedies hereinafter provided.

      . 15 U.S.C.A. § 1125 reads in pertinent part:
      (a) Any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce, . . shall be liable to a civil action by any person doing business in the locality falsely indicated as that of origin or in the region in which said locality is situated, or by any person who believes that he is or is likely to be damaged by the use of any such false description or representation.


source: Caselaw Access Project

author: LEWIS R. MORGAN, Circuit Judge:

license: Public Domain

text:
    Darrell Gene BLACKBURN, Petitioner-Appellant, v. Armond CROSS, Chairman and Commissioners, Probation & Parole Commission, State of Florida, Respondents-Appellees.
    No. 74-2333.
    United States Court of Appeals, Fifth Circuit.
    April 2, 1975.
    Rehearing and Rehearing En Banc Denied Aug. 6, 1975.

      Philip A. Hubbart, Public Defender, Bennett H. Brummer, Stephen N. Lipton, Asst. Public Defenders, Miami, Fla., for petitioner-appellant.
    Robert L. Shevin, Atty. Gen., Joel D. Rosenblatt, Stephen V. Rosin, So. Miami, Fla., Asst. Attys. Gen., for respondentsappellees.
    Before MORGAN and CLARK, Circuit Judges, and GORDON, District Judge.
   LEWIS R. MORGAN, Circuit Judge:

At issue in this case is the retroactivity vel non of the principle announced in Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972). We believe that the weight of precedent supports the retroactive application of the Wingate principle, and we therefore reverse the district court.

I.

On January 19, 1967, the petitioner was charged in an amended information with (1) breaking and entering a dwelling and unlawfully assaulting a person therein, and (2) attempted crime against nature. The petitioner entered a plea of not guilty and the trial by jury commenced.

At trial, Rosemarie Fletcher identified the petitioner as the person who broke into her apartment and attempted to sexually assault her. She had seen only the profile and back of her assailant, but she furnished police with a description of the assailant and she identified the petitioner in a line-up. In addition to Fletcher, the state presented the testimony of two additional women, Catherine Austin and Patricia McCune, both of whom lived in the same apartment complex as Fletcher. Austin and McCune identified the petitioner as the assailant who had likewise broken into their apartments and had sexually assaulted them.

The petitioner had previously been acquitted after a trial by jury of the assault on McCune. At trial for the assault on Fletcher, McCune’s testimony was admitted over petitioner’s objection as evidence of a similar offense tending to establish the identity of the petitioner as Fletcher’s assailant.

Petitioner testified in his own behalf and presented an alibi defense. In addition to the three positive identifications of the petitioner,.the state presented evidence that four fingerprints of one hand and the thumb print of the other hand lifted from the jalousie window slats of the kitchen door of Fletcher’s apartment (where the breakin occurred) were those of the petitioner.

The guilty verdict was followed by an unsuccessful direct appeal in which the petitioner claimed that McCune’s testimony was improperly admitted into evidence. Blackburn v. State, 208 So.2d 625 (Fla.App.1968). Defendant’s petition for a writ of habeas corpus — alleging that the holding in Wingate should be retroactively applied to his trial, and, hence that McCune’s testimony was inadmissible — was subsequently denied by the district court.

II.

The collateral estoppel notion, upon which petitioner relies, has been applied in the area of criminal law only recently.

In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) a federal habeas corpus petitioner attacked his state conviction for the robbery of one of six men engaged in a poker game. The petitioner had previously been acquitted of the robbery of another one of the same poker players. The single issue in dispute at both trials was whether the petitioner had been one of the robbers. The Supreme Court held that the federal notion of collateral estoppel precluded relitigation of the petitioner’s participation in the robbery and that this rule is embodied in the double jeopardy clause of the Fifth Amendment.

In Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972) this Circuit significantly expanded the Ashe holding. In Wingate a federal habeas corpus petitioner attacked his conviction for the robbery of a small store. At his trial, the state introduced evidence tending to show that Wingate had committed four additional robberies; he had been tried for and acquitted of two of these robberies. In his closing remarks there was heavy reliance by the prosecutor on the evidence of additional robberies.

This court held that Ashe does not merely bar a subsequent state prosecution, the maintenance of which depends upon a successful relitigation of a fact issue which had previously been settled adversely to the state by an earlier acquittal. Rather, the double jeopardy clause, which includes the doctrine of collateral estoppel under Ashe, prohibits the state from relitigating, for any purpose, an issue which was determined in a prior prosecution of the same party. Hence, there is no difference between relitigating an ultimate fact or an evidentiary fact; relitigation of either is prohibited.

III.

Blackburn’s trial occurred before our decision in Wingate. Since the facts before us are virtually identical to those of Wingate, we must determine whether Wingate is to be applied retroactively.

In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Supreme Court held that the Constitution neither prohibits nor requires retroactive application of new decisions. In considering the retroactivity of subsequent rulings, the Court resolved to look at the prior history of the rule in question, its purpose and effect, and whether retrospective effect furthers or retards its operation. Id. at 626, 85 S.Ct. 1731.

Shortly thereafter, the standards for retroactive application were codified in a three-pronged test:

(a) The purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of the new standards. Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967).

“ Foremost among these factors is the purpose to be served by the new constitutional rule.” Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248 (1969). Substantial consideration should be given the last two factors “only when the purpose of the rule in question [does] not clearly favor either retroactivity or prospectivity.” Id. at 251, 89 S.Ct. at 1035; see Michigan v. Payne, 412 U.S. 47, 55, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973); United States v. Scott, 425 F.2d 55, 58 (9th Cir. 1970) (en banc). Moreover,

[w]here the major purpose of a new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truthfinding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances. Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971) (plurality opinion).

Hence, retroactivity has been denied where a new rule serves a broad social policy, Williams v. Estelle, 500 F.2d 206, 208 (5th Cir. 1974), where the rule does not go to the fairness of the trial, or where the flaw in the fact-finding process is either of secondary importance or of infrequent occurrence, United States v. Scott, 425 F.2d 55 (9th Cir. 1970) (en banc) and cases cited therein. But where a new rule is fashioned to correct a serious flaw in the fact-finding process and therefore goes to the basic integrity and accuracy of the guilt-innocence determination, retroactive effect is required. United States v. Scott, supra, at 58 and cases cited therein; see Williams v. Estelle, supra, 500 F.2d at 208.

We must therefore determine the purpose behind the Wingate rule and whether this purpose relates to the integrity of the fact-finding system. The Wingate case, of course, held that the double jeopardy clause, which includes the doctrine of collateral estoppel, prohibits a state from relitigating any issue which was determined in a prior prosecution of the same party. The purpose of this rule is bound up in the whole complex of values that the guarantee against double jeopardy represents. Cf. Tehan v. Shott, 382 U.S. 406, 414, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966).

The policy underlying the prohibition against double jeopardy

is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971).

In order to protect “a man who has been acquitted from having to ‘run the gantlet’ a second time,” Ashe incorporated the rule of collateral estoppel into the guarantee of double jeopardy. Ashe v. Swenson, 397 U.S. 436, 446, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970). Wingate expanded this notion to include evidentiary as well as ultimate facts because

[i]t is fundamentally unfair and totally incongruous with our basic concepts of justice to permit the sovereign to offer proof that a defendant committed a specific crime which a jury of that sovereign has concluded he did not commit. Otherwise a person could never remove himself from the blight and suspicious aura which surround an accusation that he is guilty of a specific crime. Wingate v. Wainwright, 464 F.2d 209, 215 (5th Cir. 1972).

The Wingate court indicated that this evidence of prior acquittals was “prejudicial” and, hence, admission of such evidence could certainly influence the integrity of the fact-finding system. We therefore find that the Wingate rule warrants retroactive application.

IV.

The state argues that any error made in Blackburn’s trial was harmless, but petitioner responds that it would be inappropriate to apply the “harmless error anlaysis” to a double jeopardy claim. We need not decide whether a collateral estoppel claim is susceptible to harmless error analysis, for we find that the error committed in this case could not be adjudged harmless even if the appropriate constitutional standards were applied.

Recent Supreme Court decisions regarding “harmless constitutional error” inquire as to “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967). Only if the court can declare with confidence “beyond a reasonable doubt” that such a possibility is excluded by the record can it declare a constitutional error harmless. Id. at 24, 87 S.Ct. 824; see Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Null v. Wainwright, 508 F.2d 340 (5th Cir. 1973); Vaccaro v. United States, 461 F.2d 626, 637-38 (5th Cir. 1972).

The evidence against Blackburn was quite convincing. However, in his closing argument the prosecuting attorney disparaged the testimony of Fletcher (the alleged victim in the case sub judice) and relied upon the combined effect of all three identifications to establish reliability. Under these circumstances it is impossible for us to conclude that the erroneous admission of McCune’s testimony was harmless beyond a reasonable doubt.

Reversed and remanded with directions to issue the writ, subject to the state’s right to re-try the defendant.

      . Petitioner was paroled on May 1, 1973, from the sentence presently under attack.

      . Petitioner contends that the Wingate court’s application of the modified Ashe principle to a conviction that became final prior to the date of the Ashe decision is indicative of this court’s view of the retroactivity question. That is, petitioner contends that this court applied the collateral estoppel rule retroactively in reversing the denial of habeas corpus relief to Wingate.
      While there is some dicta suggesting that a review of a denial of habeas corpus relief effectively enunciates a retroactive rule, see Johnson v. New Jersey, 384 U.S. 719, 729, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Williams v. Estelle, 500 F.2d 206 (5th Cir. 1974), we need not decide that question because we find that a retroactive application of the Wingate rule is required by the Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) analysis.
      Petitioner also contends that Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973) mandates a retroactive application of Wingate. In Robinson the Supreme Court held that Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970) which barred a state and municipal prosecution for the same act or offense, fully retroactive. The court indicated that “[t]he prohibition against being placed in double jeopardy is not readily susceptible of analysis under the Linkletter line of cases.” Robinson v. Neil, supra, 409 U.S. at 508, 93 S.Ct. at 878.
      We believe that the Supreme Court’s retroactive application of double jeopardy principles, see Robinson v. Neil, supra, lends support to the conclusion that the Wingate decision should be retroactively applied. Cf. Vaccaro v. United States, 461 F.2d 626, 632-33 (5th Cir. 1972). However, we do not believe that Robinson is entirely dispositive of the question before us, for the rationale of Robinson was based upon the fact that double jeopardy principles normally preclude a new trial entirely, while procedural guarantees merely relate to the method of conducting trials:
      The guarantee against double jeopardy is significantly different from procedural guarantees held in the Linkletter line of cases to have prospective effect only. While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial. A number of the constitutional rules applied prospectively only under the Link-letter cases were found not to effect the basic fairness of the earlier trial, but to have been directed instead to collateral purposes such as 'the deterrence of unlawful police conduct, Mapp v. Ohio, supra. In Waller, however, the Court’s ruling was squarely directed to the prevention of the second trial’s taking place at all, even though it might have been conducted with a scrupulous regard for all of the constitutional procedural rights of the defendant. Robinson v. Neil, supra] 409 U.S. at 509, 93 S.Ct. at 878.
      While the Wingate rule is rooted in the principle of double jeopardy, its operation merely precludes the introduction of certain disfavored evidence. In light of the Robinson rationale it would be unreasonable for us to conclude that the Supreme Court in Robinson was addressing itself to the exclusion of evidence of prior crimes and, hence, intended Robinson to apply to procedural guarantees based upon the principle of double jeopardy. We therefore prefer to rest our decision upon the Linkletter line of cases.

      . See Vaccaro v. United States, 461 F.2d 626, 633 (5th Cir. 1972): “We distill from this whole body of cases the Court’s value judgment that people . are not to be punished by procedures which present ‘a serious risk that the issue of guilt or innocence may not have been reliably determined,’ or which produce a ‘clear danger of convicting the innocent.’ Practices, procedures or statutes which present the probability of risk of such consequences must be eradicated and the surest way is to prescribe retroactivity” (footnotes omitted).

      . In his closing argument, the prosecuting attorney said:
      Where is your reasonable doubt about Catherine Austin identifying this man? Rosemarie Fletcher seeing his profile, the thinning hair in the back of the head, possibly her alone I would hate to convict this man on that kind of identification [sic]. I would be loathed too [sic], even in the case of the kind of testimony when you are trying a man by [sic] the heinous crime, but we are trying him because he committed a crime against the laws of the State of Florida. So that Rosemarie Fletcher, with the profile, with the thinning hair, this is very weak, but Catherine Austin, now we’ve got the law of probability working. Take that again. It gets better, much better. Pat McCune. Now we’ve got an identification that is almost nailed down. We’ve got three sensible girls standing up there and never flinching, never turning an eye. Are you going to kick that away like it was trash and rubbish, that kind of identification?


author: BOOTLE, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Paul L. WAYMAN, Paul Howard Noe alias H. P. Knowles, Robert L. Hutcheson, and Victor M. Moore, Jr., Defendants-Appellants.
    No. 73-3664.
    United States Court of Appeals, Fifth Circuit.
    April 3, 1975.

      Theodore S. Worozbyt, Atlanta, Ga. (Court appointed), for Moore.
    Austin T. Smith, Los Angeles, Cal., for Hutcheson.
    Hugh M. Dorsey, III, Atlanta, Ga. (Court appointed), for Noe.
    John W. Stokes, U. S. Atty., William P. Gaffney, Anthony M. Arnold, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.
    Before GODBOLD and MORGAN, Circuit Judges, and BOOTLE, District Judge.
   BOOTLE, District Judge:

On a fifty-three count indictment, alleging violations of 18 U.S.C. § 371 (conspiracy to violate federal law), § 1341 (mail fraud), § 1343 (fraud by wire), and § 2314 (fraudulent inducement of interstate travel), the jury returned verdicts of guilty on various counts against appellants, Paul L. Wayman, Paul Howard Noe, Robert L. Hutcheson, and Victor M. Moore, Jr.; two other persons were found guilty and filed notices of appeal but have not prosecuted their appeals. Appellants raise various issues, but we have determined that no reversible error was committed. We affirm.

I. FACTS

The record in this seven-week trial is voluminous, and it is neither necessary nor desirable to recount all of the facts of the fraudulent scheme as it was perpetrated upon each of the twenty-one victims. Instead, we give the following scenario (drawn from the government’s brief) as typical of the procedure which was repeated with each victim, with slight variations from time to time.

Allied Mortgage Consultants, Inc. [Allied Mortgage] advertised through the Wall Street Journal that it had $200,-000,000 available for loan commitments to borrowers. The victim, a developer or builder seeking a commitment for permanent financing in order to secure construction financing, encouraged by the advertisement, contacts Allied Mortgage and is asked to forward a complete loan package on his proposed project.

The victim then receives a letter from Allied Mortgage advising that the loan committee has expressed favorable interest and that commitment intent was being, made, subject to final approval of evaluation and credit. The letter also states that to complete the package for final committee action, the results of site inspection and evaluation recommendations would have to be prepared and submitted to the loan committee by Allied Mortgage’s independently contracted evaluator. The victim is also informed in this letter of the cost of the evaluation inspection.

The victim then forwards his cashier’s check to Allied Mortgage to cover the inspection and evaluation fee. The inspection is made by an allegedly independent evaluator, in most instances an individual employed by Allied Mortgage for this purpose. No project was ever turned down by the evaluator or Allied Mortgage.

The victim then receives a letter from Allied Mortgage, advising of the committee’s approval and allowing the victim approximately fifteen days to conclude formal application and place one percent of the desired loan amount in escrow prior to the commitment offer. The victim is asked to travel to the Atlanta office of Allied Mortgage with a certified or cashier’s check for one (to three) percent of the loan amount in order to meet with Allied Mortgage personnel, negotiate an escrow agreement, and deliver the check to the escrow agent.

The “independent” escrow agent then advises the victim by mail that he has a firm loan commitment and that the agent will furnish a certified copy for an additional one to three percent of the loan amount. The victim is finally allowed a limited amount of time to obtain the actual commitment from the escrow agent by furnishing payment of the final fee of three to four percent of the loan amount. At this point, or at whatever point negotiations between Allied Mortgage and the victim are broken off, the “independent” escrow agent disburses to Allied Mortgage the funds held in escrow, allegedly pursuant to the escrow agreement.

With this understanding of the scheme, we proceed to a discussion of the issues raised by appellants.

II. ALLEGED JUROR BIAS

Subsequent to trial, appellant Noe moved for a new trial on the ground that he had been deprived of his constitutional right to a fair and impartial jury panel, due to the presence of Dennis Lee Cash as a juror. In support of his allegation of bias, Noe submitted the affidavit of Walter Foster, president of a company which (according to the affidavit) “indirectly controlled” Cash’s employer. Noe had transacted business with Foster, and as a result Foster’s company had suffered a substantial monetary loss. No other factual allegations were made to support the argument of bias. When the court asked on voir dire whether any of the jurors had had any business or social dealings with any of the defendants, Cash remained silent.

There are several problems with Noe’s argument. There is nothing ■ to indicate that juror Cash ever recognized Noe during the trial; Noe concedes that he never recognized Cash but that someone else pointed out to him Cash’s identity. The business transaction took place four years before the trial. The affidavit shows that Foster was biased against Noe, but the quantum leap from Foster’s bias to the conclusion that Cash must also have been biased is a jump we are not prepared to make. We note that Noe did not file an application for the court to question jurors and thereby determine whether Cash knew Noe or was in any degree biased; instead Noe chose to rely upon Foster’s conclusions as contained in his affidavit.

In any trial there is the presumption that the jury is impartial and unbiased; it is incumbent upon the defendant to prove otherwise. Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962); United States v. Robbins, 500 F.2d 650 (5th Cir. 1974). This court stated in United States v. Cashio, 420 F.2d 1132 (5th Cir. 1970) that prejudice will not be presumed but that the defendant has the burden of proving prejudice by a preponderance of credible evidence. This burden must be sustained “ ‘not as a matter of speculation but as a demonstrable reality.’ ” Beck v. Washington, supra. Noe has fallen far short of rebutting the presumption of impartiality. The district court did not err in denying the motion for a new trial based upon the allegation of juror bias.

Appellant Hutcheson also cites as error the alleged bias of juror Cash as to appellant Noe. For the reasons already given, inter alia, his argument is not persuasive.

III. DENIAL OF MOTIONS FOR SEVERANCE, MISTRIAL, AND DISMISSAL

Appellants Wayman, Noe, Moore, and Hutcheson contend that the trial court erred in denying their various motions after the witness J. Wayne Schilling testified that he had had dealings with Wayman and a company called Franchise Funding International but that he had never had any contact with Allied Mortgage. Defendant Shaffer’s attorney moved for a severance on the ground that the nature of the case (fifty-three counts, sixteen named defendants) was too complicated to allow a fair trial. Defendants Fitzpatrick and Donahue joined in this motion and added that, in the alternative, the motion be for a mistrial. Defendant Smith joined in the motion and added the additional ground of mutually harmful defense tactics by different defendants. Appellant Hutcheson moved for a dismissal on the ground that the indictment improperly joined a number of conspiracies in one count charging a single conspiracy. Defendants Fitzpatrick and Donahue amended their motion to include this general ground. Appellant Noe adopted all these motions.' The trial court denied all these motions.

Under Rule 8, Federal Rules of Criminal Procedure, defendants may be joined in the indictment and at trial if “they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” Once the requirements of Rule 8 have been satisfied, it is then within the sound discretion of the trial court whether the defendants will be tried separately or jointly. The appellant has a heavy burden of showing prejudice when a severance is not granted. United States v. Iacovetti, 466 F.2d 1147 (5th Cir. 1972); United States v. Harris, 441 F.2d 1333 (10th Cir. 1971). The mere fact that the conspiracy involved multitudinous and complex transactions is no reason for this court to reverse the denial of the motion to sever or the alternative motion for a mistrial, or the motion to dismiss.

The testimony of Schilling and that of the later witness Anna Harrison was evidence pointing toward a conspiracy other than that charged in the indictment. However, appellants’ reliance upon Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) is misplaced. There the Supreme Court held that the government could not prove one overall conspiracy by showing that there were eight smaller conspiracies; the only nexus among the smaller conspiracies was that one man participated in all of them. The case before us shows at most simply a variance from the indictment, in that there was evidence of a smaller conspiracy in addition to the bigger, overall conspiracy. Proof of multiple conspiracies does not automatically constitute a fatal variance from a single offense as charged in the indictment. “The true inquiry . is not whether there has been a variance of proof, but whether there has been such a variance as to ‘affect the substantial rights’ of the accused.” Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314, 1318 (1935). This point was recognized by the Court in Kotteakos: “Leeway there must be for such cases as the Berger situation and for others where proof may not accord with exact specifications in the indictment.” 328 U.S. at 773, 66 S.Ct. at 1252, 90 L.Ed. at 1571. See also United States v. Cruz, 478 F.2d 408 (5th Cir. 1973); Grissette v. United States, 313 F.2d 187 (5th Cir. 1963).

Here, as in Robinson v. United States, 333 F.2d 950 (5th Cir. 1964), the appellants make the “somewhat technical argument” that whereas the indictment charged a single conspiracy, the proof adduced by the government showed a separate conspiracy and that a fatal variance resulted. Even if we assume that there was a variance, we must still inquire whether the variance affected the substantial rights of the appellants. In Robinson we reiterated our ruling in Jolley v. United States, 232 F.2d 83, 88 (5th Cir. 1960): “If more than one conspiracy was proved, of at least one of which the appellant was guilty, it is clear that there was no variance affecting his substantial rights.” We reach the same conclusion in the case now before us. Our case is more like Berger than Kotteakos, and we find Berger controlling.

IV. CONFLICT OF INTEREST

Appellant Moore seeks reversal because of an alleged conflict of interest which arose because his attorney also represented defendant Ralph Vaughn Thomas. Moore’s previous counsel, Mr. Dorsey, had withdrawn from his representation of Moore because of a conflict of interest between his other client and Moore. The trial court appointed Mr. Atkinson to replace Mr. Dorsey. Later in the same day, Mr. Atkinson informed the court that he had been brought into the case only ten days earlier and that because of the allegations in the indictment Mr. Auld (who represented defendant Thomas), would be more familiar with Moore’s alleged involvement in the scheme. The court then appointed Mr. Auld.

The mere fact that an attorney jointly represents co-defendants is not, per se, a denial of effective assistance of counsel. United States v. Pinc, 452 F.2d 507 (5th Cir. 1971); Gardner v. Wainwright, 433 F.2d 137 (5th Cir. 1970).

Because his prior attorney had withdrawn due to a conflict of interest, Moore knew that a conflict of interest could arise in the case due to the number of co-defendants and the various defenses that each might assert. Nevertheless, Moore stated to the trial court that he wished to have Mr. Auld as his attorney. This court has recently reiterated its holding that “a trial court does not need to advise a defendant of the right to separate counsel in the event of a conflict of interest between co-defendants, where there was neither objection, claim, nor notice to the court of any alleged conflict . . . United States v. Boudreaux, 502 F.2d 557, 558 (5th Cir. 1974). Under the circumstances of this case, we find that Moore’s acceptance of Mr. Auld was a knowing and intelligent waiver of his right to separate counsel.

To warrant a reversal, there must be specific evidence that the defendant was in some way prejudiced by the joint representation. Baker v. Wainwright, 422 F.2d 145 (5th Cir. 1970). Judges are not privy to the aspects of a case not brought out at trial, and there may be facts unknown to the judge but well considered by the attorney that mandate that he conduct his defense in a certain manner; consequently, we must scrutinize any allegation that the defense of one co-defendant was conducted to the detriment of the other co-defendant. We are unwilling to conclude that Mr. Auld’s alleged refusal to let Moore testify on his own behalf was the result of a conflict of interest and was prejudicial to him. The fact that defendant Thomas was in a policy-making position while Moore was just a figurehead president does not necessarily constitute any conflict in Mr. Auld’s representation of the co-defendants, nor does Moore show how this supposed conflict was resolved to his prejudice. Moore’s allegation that during cross-examination only one question was asked concerning him assumes that representation can be measured by the number of questions asked. He fails to show how the extensive cross-examination on the workings of Allied Mortgage was not conducted for the benefit of both co-defendants. See Fryar v. United States, 404 F.2d 1071 (10th Cir. 1968).

V. MOTIONS FOR JUDGMENTS OF ' ACQUITTAL

Both Paul Howard Noe and Victor M. Moore, Jr. appeal from the district court’s denial of their motions for judgments of acquittal based upon insufficiency of the' evidence.

In reviewing a jury verdict of guilty., we, of course, are not free to try the case de novo but are limited to determining where there is sufficient evidence to support the verdict. The rule is well settled that “whether the evidence be direct or circumstantial, the matter is for the jury to decide unless the reviewing court concludes that no reasonable mind could find guilt beyond a reasonable doubt,” and in so doing the court “must make all reasonable inferences and credibility choices as will support the jury’s verdict of guilty.” United States v. Squella-Avendano, 478 F.2d 433, 435, 437, (5th Cir. 1973). See also United States v. Warner, 441 F.2d 821 (5th Cir. 1971).

We do not choose to burden this opinion with the various facts gleaned from the thirty-one volumes of trial transcript which we feel provide ample basis for the verdicts. Once a conspiracy is shown, “slight evidence” is all that is required to connect a particular person with the conspiracy. Lopez v. United States, 414 F.2d 909, 911 (5th Cir. 1969). Our review of the record convinces us that the verdicts are supported by an abundance of evidence.

VI. REQUESTS TO CHARGE

A. Robert L. Hutcheson

Hutcheson’s requests to charge are one-sided and argumentative. Although a defendant is entitled to have the theory of his defense charged to the jury, he is not entitled to have the judge recite all the facts supporting the defense while pointedly ignoring those facts adverse to his position. Paramount Film Distributing Corp. v. Applebaum, 217 F.2d 101, 123 (5th Cir. 1954). Hutcheson’s requests entirely ignore the important fact, for instance, that he, through his secretary, handled Marley commitments after he knew they were worthless. The district court committed no error in refusing to give Hutcheson’s requested charges.

B. Paul L. Wayman

Wayman requested that the judge charge the jury on the duties of an escrow holder as follows:

An escrow holder is neither concerned with nor responsible for defects in validity of instruments delivered, nor does he become guarantor or insurer of the truthfulness of representations in the instruments, other than his own special covenants and promises therein contained, or as contained in the escrow agreement by which he is directed to act. Neither is the escrow holder responsible for private understandings which are neither included in the written terms of the escrow as signed by the parties utilizing an escrow, nor in some other way communicated to him as conditions of the escrow either at or prior to the time the escrow is opened.

The judge refused to give the requested charge. A review of the evidence and of the conspiratorial scheme itself convinces us that the district court did not commit reversible error in refusing to give the requested charge.

The briefs do not say, and we fail to find, that Wayman noted an exception to the court’s refusal to give the requested charge. But assuming an exception was duly noted, the refusal was not error. The charge as requested may be applicable in civil cases where the legitimacy of the escrow is not in question and there are no charges of fraud and collusion against the escrow holder. The law as stated in the requested charge assumes full honesty and good faith on the part of the escrow holder. That assumption embraces one of the very questions at issue in this criminal trial. The government’s theory was that the escrow holder was at the very heart of the conspiracy, knowing all the while that through his cooperation the victims were to be defrauded out of the escrow funds. The requested charge represents only the narrowest view of the functions of an escrow holder and assumes his honesty without even so requiring. We agree with the government’s position that the giving of such charge in this case would be akin to charging that the driver of a getaway car in a bank robbery would be acting legally if he simply obeyed all traffic laws.

VII. REMARKS BY PROSECUTOR IN CLOSING ARGUMENT

The appellants argue that a remark made by the Assistant U. S. Attorney in closing argument warrants a reversal.. Although a prosecutor should not express his personal opinion as to the guilt of a defendant, based upon facts not in evidence, this court has not found it to be reversible error for a prosecutor to express his opinion when it is based solely upon evidence adduced at trial'. Thompson v. United States, 272 F.2d 919 (5th Cir. 1959); see also Schmitt v. United States, 413 F.2d 219 (5th Cir. 1969). Careful analysis of the remark made discloses that government counsel was not even expressing any personal belief in the guilt of the defendants but was simply arguing the weight of the evidence— “the evidence has shown the guilt of these defendants is overwhelming.” The argument objected to was, in effect, the same as a previous argument which was not objected to, viz., “We come in and we have put on a case that we think has proved our case beyond a reasonable doubt.” The time has not yet come when a prosecuting attorney cannot argue the strength of his case — the weight and sufficiency of the evidence — and ask the jury for a conviction.

VIII. HUTCHESON’S DOUBLE JEOPARDY CLAIM

Appellant Hutcheson argues that he has been subjected to double jeopardy. He bases this claim upon a former trial in which he was a defendant, United States v. Trans Continental Insurance Co., No. 72-310 (S.D.Fla.). There are two considerations which have led us to conclude that this contention is without merit.

First, the trial judge in Trans Continental declared a mistrial as to Hutcheson and one other defendant when their trial counsel was injured in an automobile wreck and was unable to continue the trial. It is hornbook law that a defendant may be tried a second time when upon the first trial the court properly declared a mistrial. But Hutcheson says that the mistrial was declared without his consent. A broad reading of certain rather casual language in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) seems to support that argument. Justice Black stated: “This Court, as well as most others, has taken the position that a defendant is placed in jeopardy once he is put to trial before a jury so that if the jury is discharged without his consent he cannot be tried again.” The cases cited by Justice Black to support this statement do not warrant such a broad rule. Indeed, he went on to say that “unforeseeable circumstances” might arise during the first trial making its completion impossible, such as the failure of a jury to agree. The broad rule in Green was explained just four years later in Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961), wherein the Court said:

Where for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objections, and he may be retried consistently with the Fifth Amendment.
367 U.S. at 368, 81 S.Ct. at 1526, 6 L.Ed.2d at 904.

We believe that the particular circumstances in Trans Continental were such that the trial court was justified in declaring a mistrial.

Second, we have looked at the indictment in Trans Continental and compared it with the indictment in the case before us. Although both involved similar alleged schemes to defraud, the precise acts involved are different. No victim mentioned in the Trans Continental indictment is mentioned in the indictment presently before us. Trans Continental Casualty Company, Ltd. is mentioned in the indictment in our case but only to the extent that the defendants represented it to be a financially sound company with substantial funds available for lending. In our review of the record we do not find that any evidence was presented as to the Trans Continental scheme. To support a claim of double jeopardy, Hutcheson must show that the two offenses are in law and in fact the same offense. Dryden v. United States, 403 F.2d 1008 (5th Cir. 1968). The two fraudulent schemes which Hutcheson would have us consider are separate and distinct.

Affirmed.

      . This type of scheme apparently is not without parallel. A similar operation was involved in United States v. Moore, 505 F.2d 620 (5th Cir. 1974).

      . At most, Foster’s affidavit simply states his conclusion that at the time of the business incident four years back, Cash “demonstrated an accordance with [Foster’s] condemnation and attribution of blame and guilt” to Noe.

      . At oral argument in this court, counsel for Noe requested that we order an evidentiary hearing on the question of the juror’s alleged bias. We sit to review alleged errors on the part of the trial court, and we decline the request.

      . Present at one or more of the meetings between Schilling and Wayman was an unidentified Mr. Thomas and a third individual, also unidentified. One of these unidentified individuals represented that he was vice-president of a bank.

      . The following discussion occurred:
      MR. ATKINSON: Prior to selecting a jury, the Court may wish to go on with the matter about Mr. Auld and myself.
      THE COURT: All right, sir. I know of no reason why we shouldn’t do that with the jury present, do you?
      Mr. Moore and Mr. Auld and Mr. Atkinson, would you please come forward then. Mr. Moore, it has been represented to me during the recess that by reason of the nature of allegations in this complaint that Mr. Auld probably is more familiar with your background or relationship to this case than Mr. Atkinson; and Mr. Atkinson has indicated a willingness to be released of the appointment which I previously made of him as your attorney. Mr. Auld has indicated a willingness to assume your representation.
      Now, is it your wish that I should relieve Mr. Atkinson and appoint Mr. Auld as your attorney?
      MR. MOORE: Yes, Your Honor.
      THE COURT: All right, sir. Mr. Atkinson, thank you for your services. I appreciate it. You are now relieved from representing Mr. Moore. Mr. Auld, you are now appointed as Mr. Moore’s attorney.

      . Hutcheson’s requests were as follows:
      22
      There has been proof adduced in this case to the effect that the defendant Hutcheson “checked out” the viability and fiscal responsibility of Marley prior to conducting business with Marley in the following manner:
      (1) By obtaining and relying on Dun & Bradstreet reports reflecting Marley’s financial posture;
      (2) By obtaining and relying on American Express reports bearing on the same issue;
      (3) By relying on the report of one Bob McAfee, a mortgage banker with the Citizens & Southern National Bank who issued a favorable report regarding Marley;
      (4) By checking with Barclay’s Bank in London for the same purpose; and
      (5) By otherwise conducting an investigation in order to establish the fact that Marley was fiscally responsible in order to honor any take-out commitments it issued.
      If you find that the defendant Hutcheson did in fact conduct such investigation and did in fact in good faith rely on the fruit of that investigation, then I charge you that if such findings create in your mind a reasonable doubt as to the defendant Hutcheson’s corrupt involvement in any alleged scheme, then you must find the defendant Hutcheson not guilty of the allegations in the indictment relating thereto.
      23
      The defendant Hutcheson maintains that he in good faith relied on various institutions and individuals all of whom attested to the fiscal responsibility and viability of Morley [sic]. If you find that the defendant Hutcheson did in fact in good faith rely on Dun & Bradstreet reports, American Express reports, the report of one Bob McAfee, a mortgage banker with the Citizens & Southern National Bank and/or on any other institutions or persons who are in the business of or able to check out the fiscal responsibility and viability of mortgage lending institutions, and that such reliance was reasonable under the circumstances, and if therefrom there is created in your mind a reasonable doubt as to the guilt of the defendant Robert Hutcheson, then you must find him not guilty of the allegations in the indictment relating thereto.

      . “But the Government would ask that you return a verdict of guilty, because I believe the evidence has shown the guilt of these defendants is overwhelming.”

      . The government’s supplemental brief informs this court that in February 1973 the Florida trial court granted the government’s motion to dismiss the Trans Continental charges as to Hutcheson.

      . We are informed by brief that the attorney who represented Hutcheson in Trans Continental was injured on a Thursday during the third week of trial. The judge declared a mistrial on the following Tuesday when it was evident that the injured attorney (who was still in the hospital) would not recuperate; the judge also concluded that substitute counsel would not suffice in a trial that had been underway for three weeks.


text:
    MACK TRUCKS, INC., Plaintiff-Appellant, v. ARROW ALUMINUM CASTINGS COMPANY, Defendant-Appellee.
    No. 74-1441.
    United States Court of Appeals, Fifth Circuit.
    April 3, 1975.
    Rehearing Denied May 9, 1975.

      Burt DeRieux, Alfred B. Adams, III, Atlanta, Ga., for plaintiff-appellant.
    James C. Hill, T. Cullen Gilliland, Atlanta, Ga., for defendant-appellee.
    Before THORNBERRY, MORGAN and CLARK, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

On December 6, 1968, in Atlanta, Georgia, a truck manufactured by plaintiff-appellant Mack Trucks, Inc. (hereafter “Mack”) went out of control and struck a truck driven by Charles E. Slagle. Slagle suffered permanent brain damage and was totally disabled; a passenger in his truck was also injured. Four suits, none of which is involved in this appeal, were filed against Mack in Federal District Court for the Northern District of Georgia: two by Slagle and his wife, one by the passenger, and one by the owner of the truck driven by Slagle. Mack settled these suits, incurring an aggregate liability of $223,400.

Mack filed suit in April of 1971 in the same court against defendant-appellee Arrow Aluminum Castings Co. (hereafter “Arrow”) to recover its total expenses in the four original suits, including attorneys’ fees, court costs and interest. Service of process was made on Arrow, an Ohio corporation, under the Georgia “long arm statute,” which provides in pertinent part:

A court of this State may exercise personal jurisdiction over any nonresident, or his executor or administrator, as to a cause of action arising from any of the acts, omissions, ownership, use or possession enumerated in this section, in the same manner as if he were a resident of the State, if in person or through an agent, he:
(a) Transacts any business within this State; or
(b) Commits a tortious act or omission within this State, except as to a cause of action for defamation of character arising from the act Ga.Code Ann. § 24-113.1 (1971).

The parties stipulated that the accident had been caused in part by the failure of a spring bracket cap manufactured by Arrow and incorporated by Mack into the truck. Whether this failure was caused by a defect in manufacture or design, and who bore responsibility for the part’s failure, were not stipulated. Mack’s case was built on a tort theory (that Arrow had been actively negligent in manufacturing the part while Mack had been only passively negligent) as well as contract theories (breach of express and implied warranties and liability under an indemnity clause on the reverse side of the order form for the cap ).

At the close of plaintiff’s evidence, the district judge ruled that the court lacked in personam jurisdiction over Arrow as to Mack’s contract theories. He therefore permitted the jury to consider only Mack’s tort theory. For reasons explained below, we hold that the district court had in personam jurisdiction as to all of Mack’s theories, and we reverse and remand for a new trial.

I.

In a diversity case such as this one, a federal district court may exercise in personam jurisdiction over a foreign defendant only if a state court could do so in the proper exercise of state law, here the long arm statute. Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1933); Arrowsmith v. United Press International, 320 F.2d 219 (2nd Cir. 1963); Stanga v. McCormick Shipping Corp., 268 F.2d 544, 548 (5th Cir. 1959). Recognizing this, the district judge examined Georgia law, and determined that a Georgia court faced with this situation would rule that:

(1) Arrow, having allegedly committed a tortious act outside the state of Georgia (negligently manufacturing the spring bracket cap) which caused injury within the state, was subject to jurisdiction under § (b) of the statute as having allegedly “commit[ted] a tortious act or omission within this State; ”

(2) Arrow was not subject to jurisdiction under § (a) since it could not be said to have “transact[ed] any business” in Georgia;

(3) . . . as the long-arm statute creates a substantive cause of action, independent long-arm jurisdiction must exist for each claim asserted, i. e. tort, breach of warranty, indemnity, etc. This results in a rule which forbids the “tacking” of other claims to one cause-of-action on which long-arm jurisdiction is predicated. Independent long-arm jurisdiction must exist for each claim asserted, (citations omitted).

The district judge concluded, therefore, that since Arrow’s alleged tort gave rise to in personam jurisdiction only for tort claims, and since Arrow had not “transact[ed] any business” in Georgia, the court did not have in personam jurisdiction over Arrow as to Mack’s contract claims.

In the absence of any Georgia court decision precisely on point, the district judge relied on several federal decisions holding that each section of the Georgia long arm statute allows the assertion of in personam jurisdiction only when plaintiff’s claim arises from certain specified conduct by the defendant. For example, in Scott v. Crescent Tool Co., Division of Crescent Niagra Corp., 296 F.Supp. 147, 152 (N.D.Ga.1969), the court held: (1) § (a) of the statute (“transacts any business”) “applies to matters in contract, not to those sounding in tort; ” (2) since the accident on which plaintiff’s claim was based did not arise from the transaction of business but from a tort, the court had jurisdiction under § (b) of the statute, but not § (a).

There is a qualitative difference between the principle enunciated by the court in Scott and that propounded by the district judge in this case, although the inherent imprecision of language tends to obscure it. Essentially, Scott holds that when a nonresident commits a tort in Georgia, and recovery is sought for the consequences of that tort, jurisdiction for the cause of action exists under § (b), but may not be established under § (a), the transaction of business section of the long arm statute. Scott stopped short of holding, however, that a plaintiff, having established jurisdiction for his cause of action under § (b), is restricted to tort theories of recovery; rather, that is precisely what the district judge in this case held.

The question for decision is thus whether a Georgia court would construe “cause of action” in the long arm statute to embrace all legal theories of relief growing out of the jurisdiction generating event, or whether it would hold the phrase to embrace only such theories as concern the limited substantive area of the jurisdiction generating event, e. g., whether a “tortious act” gives rise to jurisdiction for all theories of relief related to that tort, or only for those which themselves sound exclusively in tort. We believe a Georgia court would choose the former interpretation.

Several factors lead us to this conclusion. In J. C. Penney Co. v. Malouf Co., 230 Ga. 140, 196 S.E.2d 145 (1973), the Georgia Supreme Court faced a factual situation strikingly similar to the one involved in this case. There, Penney had been sued by plaintiffs who alleged that they had been injured by products sold to them by Penney. Penney sought to bring in Malouf, the manufacturer of the products, as a third party defendant; in personam jurisdiction over Malouf was asserted under the long arm statute. Plaintiffs’ theory of recovery against Penney sounded in tort while Penney sought indemnification from Malouf under a contract entered into at the time of the sale by Malouf to Penney. While the court’s decision in the case dealt with applicability of an amendment to the long arm statute, its handling of Malouf’s motion for rehearing is relevant to our problem. Malouf’s contention was based on a reading of the long arm statute and Ga.Code Ann. § 81A-114(a) which provides that a defendant may bring in as a third party defendant “a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.” Malouf argued that since Penney had been sued in tort, and since Malouf could not be sued solely in tort, the indemnity contract was not “part' of the plaintiff’s claim” against Penney, and that therefore Malouf could not be made a third party defendant. The Georgia court thus faced the question of what “claim” in the third party practice statute should be read to mean when construed in conjunction with the long arm statute. In disposing of Malouf’s contention, the court stated:

We hold that ... a defendant can bring in a third party non-resident defendant if the third party defendant’s liability to the defendant allegedly arises by virtue of the tort or by virtue of a contract between the defendant and the third party defendant related (for instance, indemnification) to the tort forming the basis for the original action between the damaged plaintiff and the defendant. In such a situation the non-resident third party defendant’s liability to the defendant arises by contract out of “the plaintiff’s claim” against the defendant.
Our third-party practice statute and our Long Arm Statute, in combination, were devised and enacted for the purpose of reaching a party like Malouf and bringing it into a court in Georgia so as to get the issues among and between all the parties settled in one lawsuit. 230 Ga. at 145 — 146, 196 S.E.2d at 149 (emphasis supplied).

Had Mack brought in Arrow as a third. party defendant, Penne/s factual setting would have been duplicated; in personam jurisdiction over Arrow would therefore clearly have existed as to Mack’s contract claims. That Mack instead sought indemnification in a separate suit is to our eyes a difference without a distinction; Penney is conclusive evidence, in our opinion, that a Georgia court would interpret “cause of action” as used in the long arm statute in the same liberal fashion in which the state Supreme Court interpreted “plaintiff’s claim” as used in the third party practice statute. In our case, this would result in the district court’s having in personam jurisdiction as to Mack’s entire “cause of action” including both tort and contract theories; the contract is “related to” the jurisdiction generating tort in precisely the same way in which the Penney-Malouf contract was “related to” the tort in that case.

Another recent Georgia case also leads us to hold that the jurisdiction conferred by the long arm statute embraces all theories of relief “related to” the jurisdiction generating event. In Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 195 S.E.2d 399 (1973), the Georgia Supreme Court adopted the rationale of Gray v. American Radiator Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961) in holding that “ . . .if damage occurred within the state then the tortious act occurred within the state within the meaning of subsection (b) of the Long Arm Statute.” Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 60, 195 S.E.2d 399, 400 (1973). The court then reversed the state court of appeals decision which had held that no jurisdiction existed over the nonresident manufacturers of a floor product either on the basis of the companies’ having transacted business or committed a tortious act within Georgia. The suit involved both tort and contract theories of recovery in both claims and counterclaims for damages incurred in a fire allegedly caused by vapors given off by an adhesive used in laying the flooring. The court of appeals remanded the entire case for trial, in effect allowing the assertion of in personam jurisdiction as to all theories of relief arising out of the jurisdiction generating event, without regard to whether that event was the transaction of business or the commission of a tort.

If a Georgia court were to face the problem with which we deal in. this case, we feel it would also be influenced by the universally broad construction which federal courts have given, in widely disparate contexts, to the phrase “cause of action” or the similar term “claim.” For example, in Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed 1148 (1933) the Court held that a district court, having found for the defendant on plaintiff’s federal copyright infringement claim, nevertheless retained jurisdiction to decide the state law unfair competition claim. “The bill alleges the violation of a single right,” the Court said,

namely, the right to protection of the copyrighted play. And it is this violation which constitutes the cause of action. Indeed, the claims of infringement and unfair competition so pre-. cisely rest upon identical facts as to be little more than the equivalent of different epithets to characterize the same group of circumstances. The primary relief sought is an injunction to put an énd to an essentially single wrong, however differently characterized, not to enjoin distinct wrongs constituting the basis for independent causes of action. Id. at 246, 53 S.Ct. at 590.

Likewise, in American Fire and Casualty Co. v. Finn, 341 U.S. 6, 14, 71 S.Ct. 534, 540, 95 L.Ed. 702 (1950), in interpreting “claim or cause of action” as used in 28 U.S.C. § 1441(c), the removal statute, the Court concluded that:

where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action (footnote omitted).

A similar broad construction has prevailed in still another context. In Backus Plywood Corp. v. Commercial Decal, Inc., 317 F.2d 339 (2d Cir. 1963), cert. denied 375 U.S. 879, 84 S.Ct. 146, 11 L.Ed.2d 110 (1963), the complaint was drafted in terms of three “causes of action,” two in contract and one in tort. The district court granted summary judgment as to the contract “causes” and issued a certificate under Rule 54(b), F.R.Civ.P., stating that its decision was immediately appealable. Rule 54(b) however, is applicable only “[w]hen more than one claim for relief is presented,” and the partial adjudication of a single claim is therefore not appealable even when a 54(b) certificate is issued. In holding the case non-appealable, the Second Circuit explained that

the three “causes of action” in the complaint presented merely three different theories of recovery
“[A]ll of the facts on which plaintiff relies constitute but a single transaction composed of a closely related series of occurrences. . . . F.R. 54(b) cannot be used to appeal a part of a single claim or, as here, to test a single legal theory of recovery . ..” [quoting Schwartz v. Eaton, 264 F.2d 195, 196 (2d Cir. 1959)] 317 F.2d at 341.

II.

Appellant’s second contention is that the district court erred in qualifying the jury as to Travelers Insurance Company, and in removing a venireman who was an agent of Travelers.

It is undisputed that Travelers had insured Mack under a liability policy, and had paid the settlements in the four original lawsuits. Under the Georgia rule, the jury must be qualified as to an insurer if the company has a “pecuniary interest” in the outcome. Atlanta Coach Co. v. Cobb, 178 Ga. 544, 174 S.E. 131 (1933). Mack alleges, however, that the policy was of a variety known as “retrospective risk,” which required Mack to repay to Travelers any amount extended by Travelers to cover Mack’s liability. Indeed, Mack alleges that it had already repaid all amounts paid out by Travelers at the time of trial and that the insurer therefore had no pecuniary interest in the outcome. Mack’s counsel, however, did not make these allegations until the commencement of voir dire; in fact, Mack’s proposed pretrial order stipulates that the jury should be qualified as to Travelers.

Under the circumstances, we need not decide whether the court erred in so qualifying the jury. We merely note that, upon remand, the exact nature of the insurance policy should be determined. The jury should be qualified as to Travelers only if it is shown to have a pecuniary interest in the outcome of the suit.

The judgment of the district court is reversed and the cause is remanded for a new trial.

      . Paragraph nine of the order form provided: WARRANTIES AND INDEMNIFICATION — Seller warrants that (i) all material delivered hereunder shall conform to the specifications herein and any samples approved by Buyer as herein provided, (ii) all material delivered hereunder will be of the highest quality and free from defects (including defects in design when design is Seller’s responsibility), . Seller agrees to indemnify and hold Buyer harmless against any and all liability whatsoever for damages and/or injuries which may be incurred by Buyer by reason of any defect in material (and/or design, if Seller’s responsibility) delivered or furnished hereunder. . .

      . See also Perma Research and Development Co. v. The Singer Co., 410 F.2d 572 (2d Cir. 1969) (if plaintiff will be limited to a single recovery, only a single “claim” is involved); CMAX, Inc. v. Drewry Photocolor Corp., 295 F.2d 695, 697 (9th Cir. 1961) (“The word ‘claim’ in Rule 54(b) refers to a set of facts giving rise to legal rights in the claimant, not to legal theories of recovery based upon those facts.”)

      . A new trial on only some of the issues in a case may be ordered only if the issues to be retried are so distinct and separable from the other issues that trial of them alone clearly may be had without injustice or prejudice to either party. Vidrine v. Kansas City Southern Ry. Co., 466 F.2d 1217 (5th Cir. 1972). Where, as here, the issues are so closely related and originate in the same set of factual occurrences, a partial retrial is inappropriate. We note our disappointment that the able district judge did not allow the jury to pass on all Mack’s claims, and then grant a judgment notwithstanding the verdict if he felt it necessary. Had he done so, we could simply reinstate that jury verdict.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lanis HURST and Thomas Eugene Sims, Defendants-Appellants.
    No. 74-1040.
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed Feb. 10, 1975.
    Thomas Eugene Sims, Lanis Hurst, Timothy A. Fischer (Court-appointed— CJA), Cincinnati, Ohio, for defendants-appellants.
    Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., Loren G. Keenan, Asst. U. S. Atty., for plaintiff-appellee.
    Before WEICK, EDWARDS and CELEBREZZE, Circuit Judges.
   PER CURIAM.

Appellant appeals from his conviction by a jury on a charge of armed bank robbery, in violation of 18 U.S.C. § 2113(a) (1970). Proofs of guilt tendered at trial included eyewitness identification of the defendants by persons in the bank at the time of the robbery and testimony by two witnesses that Sims was in possession of First National City Bank of New York travelers checks (which had been part of the loot taken from the bank) immediately after the date of the robbery. It also included testimony by FBI Agent Crawford quoting Sims, after being advised of his Constitutional rights:

Q What, if anything, did he say to you at that time?
A He stated that he anticipated that he would be arrested on this charge—
THE COURT: Excuse me. I cannot hear you.
A —that he anticipated that he would be arrested on this charge and pretty much resolved himself to the fact that he would be doing twenty years for this offense. He also made a remark that he knew it was bad when he left the place.
Q (By Mr. Heikkinen) Is that the extent of his remarks?
A There was something said in jest somewhat — “You win some, you lose some, and I knew it was bad when I left the place.”
MR. HEIKKINEN: No further questions.

Defendants did not take the stand and the jury verdict was returned within an hour after the Judge’s charge. Each defendant was sentenced to 20 years.

On appeal the only issues presented concern FBI Agent Crawford’s testimony. Appellant Sims asserts that Crawford took notes and destroyed them, in violation of the Jencks Act, 18 U.S.C. § 3500 (1970), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In this instance the FBI Agent testified that he dictated his report and then destroyed handwritten notes which had not been submitted to or signed or approved by the defendant Sims. No request was made for production of the FBI report.

We have previously dealt with this issue and held that where the agent’s report is available and produced on request, the destruction of his interview notes is not a violation of either the Jencks Act or applicable case law. United States v. Lane, 479 F.2d 1134 (6th Cir.), cert. denied, 414 U.S. 861, 94 S.Ct. 78, 38 L.Ed.2d 112 (1973). See also United States v. Lonardo, 350 F.2d 523 (6th Cir. 1965).

The second issue posed by appellants pertains to the FBI Agent’s response to a question bearing on the Miranda warning he gave to defendant Sims. Asked whether Sims had been advised of his Constitutional rights, Crawford replied: “Well, he was displayed an interrogation-advice of rights form. To make it clear, he was in a cell at the time of his initial arrest.”

We have recently had occasion to discuss the volunteering of information which would lead the jury to the conclusion that a defendant had a prior crimi-

nal record. In United States v. Ortiz, 507 F.2d 1224 (6th Cir. 1974), this court said:

The only appellate issue of significance in this case pertains to the testimony of an FBI agent concerning appellant’s prior arrest record. We read the government’s brief as confessing error in this regard. While the claim is advanced that the testimony was inadvertent and appellant’s brief appears to accept this, we do not agree. Agents of the Federal Bureau of Investigation know from their training and experience that records of arrests not resulting in conviction are not generally admissible in evidence and that reference to such on the witness stand usually would be prejudicial and reversible error. The fact that appellant’s trial counsel did not object or move to strike does not serve to waive this sort of error, nor does it excuse the failure of the judge to intervene and strike the offending testimony and instruct the jury to disregard it. Fed. R.Crim.P. 52(b); United States v. Gray, 468 F.2d 257 (3d Cir. 1972); United States v. Garber, 471 F.2d 212 (5th Cir. 1972).
The only reason in this case for this court to fail to treat the introduction of this evidence as plain error is that our review of the whole transcript of the trial convinces us that the evidence of appellant’s guilt was so overwhelming that this example of overkill could not possibly have influenced the outcome or “affect[ed] substantial rights” of appellant. Fed.R.Crim.P. 52(a); Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); United States v. Sidman, 470 F.2d 1158, 1163 (9th Cir. 1972), cert. denied, 409 U.S. 1127, 93 S.Ct. 948, 35 L.Ed.2d 260 (1973). Id. at 1226.

Like the Ortiz case, the volunteered statement by Agent Crawford was not responsive and we do not accept any contention that it was inadvertent. But also like the Ortiz case, the proofs of guilt here are so great that again we deem the harmless error rule applicable. Fed.R.Crim.P. 52(a).

The judgment of the District Court is affirmed.


author: PER CURIAM:

text:
    CLINTON COMMUNITY HOSPITAL CORPORATION, Appellant, v. SOUTHERN MARYLAND MEDICAL CENTER et al., Appellees.
    No. 74-1688.
    United States Court of Appeals, Fourth Circuit.
    Argued Jan. 8, 1975.
    Decided Feb. 10, 1975.
    Certiorari Denied June 23, 1975.
    See 95 S.Ct. 2666.
    William H. Manger, Baltimore, Md., for appellant.
    Edmund B. Clark, Atty., U. S. Dept, of Justice (Wallace H. Johnson, Asst. Atty. Gen., George Beall, U. S. Atty., James M. Kramon, Asst. U. S. Atty., Carl Strass, Gary B. Randall and Lawrence E. Shearer, Attys., U. S. Dept, of Justice, on brief) for appellee Caspar Weinberger, etc., and others.
    Paul M. Nussbaum, Mt. Rainier, Md. (Richard E. Ekstrand and Reichelt, Nussbaum & Brown, Mt. Rainier, Md., on brief) for appellee Southern Md. Medical Center.
    Before BRYAN, Senior Circuit Judge, and WINTER and FIELD, Circuit Judges.
   PER CURIAM:

Pleading the National Environmental Policy Act, the National Housing Act, the Public Health Service Act, the Comprehensive Health Planning and Public Health Services Act, and the Noise Control Act, appellant, Clinton Community Hospital, brought this suit in the Maryland Federal District Court in October, 1973 against the Southern Maryland Medical Center, HEW Secretary Weinberger, and HUD Secretary Lynn to enjoin the construction of SMMC’s hospital. SMMC is a joint venture of several physicians to construct a 200-bed hospital slightly more than three miles due south of a major runway at Andrews Air Force Base in Prince George’s County, Maryland. Appellant is a 33-bed facility located some two miles northwest of SMMC’s proposed site.

Stripped to its essentials, appellant’s argument is that SMMC’s proposed hospital would be adversely affected by its environment, specifically the air base and concomitant air traffic. The District Court granted SMMC’s motion to dismiss and sua sponte dismissed the case against the Secretaries.

The District Judge correctly held that appellant had no standing to sue. In the fourth paragraph of the appellant’s amended complaint it is stated:

“Plaintiff [appellant] has a pecuniary interest in the outcome of this proceeding, inasmuch as the construction of the SMMC hospital two miles from Plaintiff’s existing hospital will result in its eventual closing, since, as a 33 bed hospital, it will be unable to compete with the proposed 200 bed hospital. . .

If it has in fact suffered an injury, appellant’s economic well-being vis-a-vis its competitors is certainly not “arguably within the zone of interests to be protected” by the Federal environmental laws. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

Additionally, as the District Court noted, appellant has failed to state a claim upon which relief can be granted. It contends that injunctive relief is in order because of the impact of the existing environment on the proposed, hospital. Such a claim turns the statutory scheme 180 degrees around. As it is stated, the claim was properly dismissed by the District Court.

For these and the reasons stated by the District Court, we affirm the dismissal of the case. Clinton Community Hospital Corporation v. Southern Maryland Medical Center, et al., 374 F.Supp. 450 (D.Md.1974).

Affirmed.

      . 42 U.S.C. §§ 4331 — 4334 (1970).

      . 12 U.S.C. § 1715z — 7(d)(4) (1970).

      . 42 U.S.C. § 291d(a)(l) (1970).

      . 42 U.S.C. § 246 (1966).

      . 42 U.S.C. §§ 4901-4917 (1972).