author: GODBOLD, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James F. PHILLIPS, Defendant-Appellant.
    No. 72-2170.
    United States Court of Appeals, Fifth Circuit.
    May 9, 1973.

      Kenneth R. Cain, Ozark, Ala., for defendant-appellant.
    Ira DeMent, U. S. Atty., David B. Byrne, Jr., Wade B. Perry, Asst. U. S. Attys., Montgomery, Ala., for plaintiff-appellee.
    Before COLEMAN, GOLDBERG and GODBOLD, Circuit Judges.
   GODBOLD, Circuit Judge:

Appellant was convicted by a jury of violation of 21 U.S.C.A. § 174 (1972), which proscribes receiving, concealing and facilitating the transportation and concealment of a narcotic drug. There are several substantial and close issues which we need not reach because the entire ease rests upon an invalid warrant-less governmental search of a parcel while in the United States mails. The conviction must, therefore, be reversed and the prosecution dismissed.

On the basis of undisclosed information the postmaster of Ozark, Alabama, was alerted to watch for incoming parcels addressed to James F. Phillips. A sealed parcel arrived addressed to Phillips at an Ozark street address. It bore a stamped notation “air mail special delivery” and postage in the amount of $1.25 but no notation as to the class of mailing. It weighed 11% ounces. Postal authorities were of the opinion that the parcel was fourth class matter, which, while in the possession of postal authorities, may be opened for postal inspection without the necessity of a warrant. Santana v. United States, 329 F.2d 854, 856 (1st Cir.), cert. denied, 377 U.S. 990, 84 S.Ct. 1915, 12 L.Ed.2d 1044 (1964). Cf. 39 U.S.C.A. § 4058(a) (1962) and 39 C.F.R. 135.7 (1972). The package was opened by postal officials and found to contain a white powdery substance which, we will assume for purposes of this opinion, the jury properly could have found was a narcotic. Subsequently, after some of its contents were removed, the parcel was rewrapped and delivered to Phillips.

While fourth class matter is subject to opening for postal inspection, the fourth amendment protects first class mail from warrantless opening for postal inspection, and that constitutional limitation has been carried forward into a statute. Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877 (1877); Oliver v. United States, 239 F.2d 818 (8th Cir. 1957); Webster v. United States, 92 F.2d 462 (6th Cir. 1937); Lustiger v. United States, 386 F.2d 132, 139 (9th Cir. 1967), cert. denied, 390 U.S. 951, 88 S.Ct. 1042, 19 L.Ed.2d 1142 (1968) ; United States v. Van Leeuwen, 414 F.2d 758 (9th Cir. 1969), and 39 U.S.C.A. § 4057 (1962)

The basis for the opinion of postal authorities that the package was fourth class matter was unclear at trial and no clearer in the government’s brief or at oral argument of this appeal. The fee for special delivery service was 45 cents. Postal officials explained that they deducted this amount from the postage of $1.25, leaving 80 cents, which is the minimum fee for any air parcel post package, irrespective of class, weighing less than one pound. 39 U.S.C.A. § 4303(d)(1) (App.1972). A postal inspector was permitted to testify as an expert, over objection, that in his opinion, based upon his experience and postal laws and regulations, the parcel was fourth class. The great, and unexplained, leap in logic by the government and its witnesses is the implicit assumption that a sealed package sent air parcel post is neither first class matter nor entitled to the same privacy as first class matter, and instead, as an affirmative proposition, is fourth class matter. We say “as an affirmative proposition,” because under familiar principles the burden was upon the government to establish that it had the right to make a warrantless search.

Under 39 U.S.C.A. § 4251(a) (App. 1972) first class mail consists of:

[Mjailable (1) postal cards, (2) post cards, (3) matter wholly or partially in writing or typewriting [with certain exceptions], (4) bills and statements of account, and (5) matter closed against postal inspection.

Fourth class mail consists of mailable matters:

(1) not mailed or required to be mailed as first class mail;
(2) within the size and weight limits prescribed for fourth class mail;
(3) not entered as second class mail.

39 U.S.C.A. § 4551(a) (1962). Second and third class classifications have no arguable relationship to this parcel or this ease.

In 1967 Congress amended the postal laws so as to eliminate the preexisting service for heavier [i. e., in excess of eight ounces] “air mail of the first class,” see 39 U.S.C.A. § 4303(d)(2) (1962), repealed by Pub.Law 90-206, Title I, § 102(b)(2), 81 Stat. 614 (Dec. 16, 1967), and so as to establish a new and lower rate for some first class mail items. It did so by blending into one enactment the preexisting concept of “air parcel post” and the eliminated service for “air mail of the first class” and by providing in 39 U.S.C.A. § 4253(b) (App.1972) that “[f]irst class mail weighing more than thirteen ounces shall be mailed at the rates of postage established by section 4303(d) of this title [the rates for air parcel post] and shall be entitled to the most expeditious handling and transportation practicable.” The pertinent legislative history of the 1967 amendments reveals the following:

Air parcels
The rate on air parcels, now mailed at a zone rate, is revised. Beginning with the effective date of the postal provisions of this legislation, airmail weighing more than 7 ounces and first-class mail weighing more than 13 ounces will be combined as one class of mail and will be delivered by the most expeditious means of transportation available.
This is a significant departure from the present method of determining class of mail and postage rates for heavier parcels. Because of the significantly high cost coverage of heavy first-class and airmail parcels, the Post Office Department has recommended and the committee and the House of Representatives have approved a new rate schedule combining these two kinds of heavy mail at a zone rate schedule which is generally lower than present rates for air parcel post or first-class mail. A particular benefit to the public will be the 80-cent nationwide airmail rate for any parcel weighing 1 pound.

2 U.S.Code Cong. & Admin.News, 90th Cong. 1st Sess.1967, p. 2258 at 2262 (emphasis added).

Prior to these 1967 amendments the separate concepts of “air parcel post” and of classes of mail had proceeded along lines of development that were uncorrelated, and at times contradictory. We do not find in the pre-1967 statutory development of the air parcel post concept any guidance on the question of whether the search of the instant parcel violated the fourth amendment.

We conclude that this sealed air parcel sent under the new “one class of mail” could not be opened without a warrant. We reach that conclusion as a matter of law by examining the 1967 amendments in the light of the fourth amendment and of the pre-1967 implementation of that amendment by Congress in the field of postal matter. The beginning point is the Constitution itself and the rights of privacy protected by the fourth amendment. The constitutional guaranty is implemented at least in part by the statutory scheme for classification of mail into — insofar as here applicable — first and fourth class matter; the statute forbidding the war-rantless opening of a first class item; and the supporting regulations that prescribe how first class matter shall be wrapped and marked and how fourth class matter shall be wrapped. 39 C.F. R. §§ 131.2(3) and 135.7 (1972). Ambiguities may arise, such as the sender’s sealing a parcel, which should require it to go as first class matter, 39 U.S.C.A. § 4251(a)(5) (App.1972), but paying only fourth class postage, or, hypothetically, paying only fourth class postage but writing on the parcel “Do not open for postal inspection.” Such ambiguities cast doubt on the proper classification of the item and on the intent of the sender as well. But, indisputably, the privacy of a sealed item bearing the proper amount of postage for a first class item is protected from warrantless opening, not because it is given the appellation “first class” but because the Constitution commands that result. Nothing in the legislative history of the new “one class of mail” suggests that an item possessing the characteristics that had entitled it to the privacy protected by the fourth amendment (and thus formerly to first class status) was intended to have a lesser scope of privacy by being rechar-acterized as within the new “one class” and sent at a new rate lower than the first class rate. Indeed, for items sealed against postal inspection, Congress probably could not constrict the scope of privacy without abrogating the fourth amendment.

An argument can be made that any parcel sent in the new class, sealed or unsealed, is entitled to be treated as though first class mail and exempted from warrantless opening. But we leave determination of that question to some other case in which the issue is squarely raised and adequately presented.

We have reached the conclusion that, as a matter of law, this sealed air parcel should not have been opened without a warrant. There are alternative grounds commanding the same result. First, the burden of proof was upon the government to establish its right to make a warrantless search of a private parcel. The government has not discharged that burden but has merely assumed that the matter was settled by the opinion of one of its employees that the parcel was fourth class. Second, even if it is assumed arguendo that an air parcel sent with correct postage under the new rates can have a classification other than first class matter, and need not enjoy the privacy extended to first class matter, the only other status into which this particular parcel could arguably fall would be fourth class. But the statutes concerning classes of mail and the empirical facts make clear that this parcel was not fourth class. It was sealed, and as already pointed out, it was below the minimum weight for fourth class. While it did not bear first class postage but instead carried the postage of the new rates for the “one class of mail,” the amount of postage exceeded that for fourth class parcel post. 39 U.S.C.A. § 4556 (App.1972).

The case is reversed with directions to dismiss the indictment.

      . Tlie search took place on February 19, 1971, after enactment of the Postal Reorganization Act, Pub. Law 91-375, 84 Stat. 719, on August 12, 1970. The validity of that search, however, is controlled by the requirements of the Constitution and by the statutory provisions, and supporting agency regulations, of Title 39, United States Code, which pre-existed the Postal Reorganization Act. See 39 U.S.C.A. (App.1972).
      The Reorganization Act did not become effective in its entirety until July 1, 1971. During the interim from the date of enactment to the date of commencement of operations of the new Postal Service (July 1, 1971), the Post Office Department continued to operate under pre-existing statutory grants of authority supplemented by those grants contained in the Reorganization Act which became effective before the Postal Service commenced operations. Section 3 of Pub.Law 91-375, 84 Stat. 773, which became effective July 1, 1971, provided that: “The classes of mail, the rates of postage, and fees for postal service prescribed by law or regulation made or adopted prior to the effective date of subchapter II of chapter 36 of Title 39, United States Code, as enacted by section 2 of this Act, shall be in effect according to the terms of such law or regulation until changed in accordance with such subchapter.”
      The section of the Reorganization Act enacted as 39 U.S.C. § 3623, see Pub.Law 91-375, 84 Stat. 761, which became effective January 20, 1971, is merely a directive authorizing the Postal Service to request the Postal Rate Commission appointed by the President under 39 U.S.C. § 3601, to make recommendations on classes of mail and rates. The government’s supplemental brief states that the Commission did not submit recommendations until January 18, 1973, and that as of March 1, 1973, no new regulations had been promulgated incorporating these recommendations.

      . “The Postmaster General may prescribe the manner of wrapping and securing mail not charged with first class postage so that the contents of the mail may be easily examined. He shall charge the first class rate of postage on all matter which cannot be examined easily.”

      . “Sealing
      “Fourth-class mail must be wrapped or packaged so that it can be easily examined. Mailing of sealed parcels at the fourth-class rates of postage is considered consent by the sender to postal inspection of the contents. To assure that their parcels will not be opened for postal inspection, customers should, in addition to paying the first-class rate of postage, plainly mark their parcels First Class or with similar endorsements.”

      . “Opening first class mail
      “Only an employee opening dead mail by authority of the Postmaster General, or a person holding a search warrant authorized by law may open any letter or parcel of the first class which is in the custody of the Department.”

      . Special delivery service is available for any class of mail, 39 U.S.C.A. § 6006 (1962), so the use of that service has no value as an indicator of the class of the parcel.

      . It was error to permit this conclusory testimony on what was either a question of law or a mixed question of law and fact. Additionally the prosecution’s presentation —through conclusory expert testimony— of its claim to a right to make a search without warrant insulated the government from having to point out to the court the statutes, regulations and case law which would have brought to the surface the questions of law involved.

      . It is not claimed, and indeed it cannot be claimed, that there were exigent circumstances which would have prevented the government’s obtaining a warrant before the parcel was delivered.

      . While at the same time reducing from eight to seven ounces the maximum weight for “domestic air mail,” compare 39 U.S.C.A. § 4303(a) (App.1972) with 39 U.S. O.A. § 4303(a) (1962), anil raising the minimum weight for “air parcel post” from seven to eight ounces, compare 39 U.S.C.A. § 4301(2) (App.1972) with 39 U.S.C.A. § 4301(2) (1962). Congress also established new rates for air parcel post. 39 U.S.C.A. § 4253(b) (App.1972).

      . Thus see the legislative history to 39 U.S.C. § 4302 (1964), contained in the official revision notes thereto :
      “Since only one schedule of rates is applicable to air parcel post, the laws which distinguish as between treatment of the various classes of mail are inappropriate to air parcel post. Paragraph 10 of section 475 of title 39 is intended to cover this situation. The subsection clarifies this situation by stating that the Postmaster General shall provide for the special return and for the special services for air parcel post.”
      and the legislative history to 39 U.S.C. § 4301 (1964) :
      “This definition of domestic air mail is derived from the matter preceding the proviso in section 462a. The proviso is covered by section 4304 of this title.
      “The definition of air parcel post is derived from section 475 of title 39.
      “Chapter 13 of title 39 contains three definitions relating to air mail. Section 462 defines air mail as ‘first class mail’ at the special air mail rate; 462a defines ‘domestic air mail’ as embracing ‘all mailable matter being transported as mail by air’ and section 469 defines air mail as ‘mail of any class’ at the air mail rate when used in relation to sections 463 and 469f of said chapter; section 463 which fixed postage rates is superseded by section 463a and section 469f is an obsolete section dealing with claims on annulled air mail contracts.”
      S.Rep.No.1763, 86th Cong., 2d Sess. 58 (1960).

        Compare 39 U.S.C. § 462 (1952 ed.) with 39 U.S.C. § 462a (1952 ed.) and 39 U.S.C. § 469 (1952 ed.).

      . 39 U.S.C.A. § 4057, (1962) quoted in footnote 4, supra.

      . If the post office accepts such parcels unsealed, a matter as to which we are not informed.

      . The argument would run this way. (1) Accepting that Congress did not, and probably could not, by creating the “one class of mail,” extend less privacy than formerly extended to first class mail exceeding 13 ounces, it would be anomalous to conclude that Congress intended a lower status for the other types of items — air mail parcels —also included in the “one class of mail.” Both types of items pay the same rate and are handled in the same manner. And the legislative history, quoted above, is in terms of “one class.” (2) The classifications for mail established by other provisions of the United States Code are second and third class. They have no relevance here. Congress would not have intended to import fourth class standards into the “one class of mail.” The new class begins at “in excess of 7 ounces.” The minimum weight of a fourth class parcel is 16 ounces. 39 U.S.C.A. § 4551 (1962) and 39 U.S.C.A. § 4552(a)(2) (App. 1972). The standards of fourth class, previously restricted to only larger parcels, would hardly be extended by implication, and without any supporting evidence of intent, to smaller parcels as well.

      . In a case remarkably similar to the one before us, a United States District Court and the Eighth Circuit have reached the conclusion that air parcel post is first class matter. Collins v. Wolff, 337 F.Supp. 114 (D.Neb.1972), aff’d, 467 F.2d 359 (8th Cir. 1972). The linchpins of their decisions are first, that after 1967 air parcel post must carry the same postage as first class matter, and, second, that the rate of postage determines whether or not a parcel is first class. We do not adopt that reasoning, because, while the rate for air parcel post and first class items over 13 ounces is the same after 1967, it is not the first-class rate. As the congressional history pointed out, the new and lower rate for the “one class of mail” is lower than previous rates for air parcel post and first class mail (and, of course, lower than the increased rates for first class and air mail).


source: Caselaw Access Project

author: J. JOSEPH SMITH, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellant, v. Luis CASTELLANOS, Appellee.
    No. 680, Docket 72-2337.
    United States Court of Appeals, Second Circuit.
    Argued April 10, 1973.
    Decided May 4, 1973.
    Paul M. Bergman, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. New York, L. Kevin Sheridan, Asst. U. S. Atty., of counsel), for appellant.
    Frank T. Geoly, Fontana & Geoly, Brooklyn, N. Y., for appellee.
    Before SMITH, HAYS, and TIMBERS, Circuit Judges.
   J. JOSEPH SMITH, Circuit Judge:

This appeal presents a single substantive question — may a district court order the dismissal of an indictment on grounds of double jeopardy solely because two previous trials of an accused have resulted in deadlocked juries? Judge Dooling answered that question in the affirmative, and ordered the indictment against Luis Castellanos dismissed, 349 F.Supp. 720. For the reasons below, we reverse.

The relevant facts may be quickly stated. The underlying indictment alleges a conspiracy to sell cocaine. The main government witness at both trials was Horace D. Balmer, a New York City undercover detective, who testified about appellee’s involvement in the alleged conspiracy. At each trial, the defense was presented wholly through the testimony of the defendant himself, who denied any narcotics dealings, and a number of character witnesses. The first jury was discharged after it deadlocked 11 to 1 for conviction; the second after it split 7 to 5 for acquittal.

After the second mistrial, appellee moved for a judgment of acquittal pursuant to Rule 29(c), Fed.R.Crim.P., and “for such other and further relief as to this Court may seem just and proper.” Judge Dooling, in a written memorandum, denied the motion for acquittal, noting that there “was unmistakably an issue for the jury to resolve.” However, concluding that he had the power to grant a motion to dismiss where there had been two previous jury disagreements and the record indicated no special circumstances contributing thereto in either trial, Judge Dooling ordered the indictment dismissed on grounds of double jeopardy. It is this order from which the government appeals.

I.

At the outset, appellee confronts us with a claim that we lack jurisdiction over the appeal. He bases his argument upon the language of 18 U.S.C. § 3731, which provides:

“In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.”

Castellanos contends that since Judge Dooling held that further prosecution was barred by the Double Jeopardy Clause, the statute forbids appeal.

We cannot accept appellee’s argument, which would have the effect of making the district courts the final arbiters of the constitutional meaning of the Clause. An order such as the one here, dismissing an indictment on grounds of double jeopardy prior to the impaneling of a new jury, was clearly appealable under the predecessor to the present § 3731. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). Nothing in either the legislative history or the language of the new statute, Pub.L. 91-644, Title III, § 14(a), 84 Stat. 1890, indicates the slightest intention to cut back the scope of former § 3731. Indeed, quite the opposite seems true, for the statute was described as designed to eliminate “technical distinc-. tions in pleadings as limitations on appeals by the United States,” Conference Rep. No. 91-1768, 91st Cong., 2d Sess.; 1970 U.S.Code Cong. & Admin.News at 5848, and the text of the law itself instructs us that its “provisions shall be liberally construed.”

The reference to the Double Jeopardy Clause in the statute, rather than barring appeal in a case like this, seems designed to meet the unrelated problem posed by the Supreme Court’s interpretation of the old Criminal Appeals Act in United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970). There, the Court construed a provision that allowed appeals “From the decision or judgment sustaining a motion in bar, where the defendant has not been put in jeopardy;”

“. . .as confining the Government’s right to appeal ... to situations in which a jury has not been impaneled, even though there are cases in which a defendant might constitutionally be retried if appeals were allowed after jeopardy had attached.” Id. at 302-303, 90 S.Ct. at 2137.

The Court explicitly rejected Mr. Justice White’s position that the statutory language merely restated the prohibition of the Fifth Amendment, holding instead that the statute forbade appeals from rulings made after jeopardy attached, regardless of whether or not retrial would have been constitutionally barred after appellate review. Id. at 304-306, 90 S.Ct. 2117.

The new statute was apparently aimed at this dilemma, seeking to make the government’s right to appeal coextensive with its ability to retry the defendant if its arguments on the merits should prevail on review. Id. at 306-307, n. 61, 90 S.Ct. 2117. But of course, the government’s ability to retry Castellanos is precisely what is at issue here. At worst then, we lack jurisdiction and must dismiss only if Judge Dooling’s ruling is correct, and conversely, if the order below is in error, we have jurisdiction and must reverse. In short, the question of our jurisdiction is bound up with the merits, and it is to these that we now turn.

II.

As the Supreme Court has recently reminded us in Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), the “fountainhead decision construing the Double Jeopardy Clause in the context of a declaration of a mistrial” is United States v. Perez, 9 Wheat. (22 U.S.) 579, 6 L.Ed. 165 (1824). In that case, speaking for a unanimous Court, Mr. Justice Story held that where a jury is properly discharged for failure to agree upon a verdict and a mistrial declared, the defendant may be put to a new trial without violating the Double Jeopardy Clause:

“We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere.” Id. at 580

This “manifest necessity” standard has been “consistently adhered to,” Somerville, supra, 410 U.S. 458, 93 S.Ct. 1066, by the Supreme Court in the nearly one hundred and fifty years since Perez. Thus, the essential question in each case involving double jeopardy contentions after the declaration of a mistrial has been whether the trial judge abused his discretion in terminating the trial short of verdict. If so, retrial is barred. As might be expected, since trial judges may declare mistrials for a variety of reasons, the inquiry is a factual one, and the Supreme Court has often sharply divided on the issue of whether a particular mistrial declaration meets the “manifest necessity” standard. See, e. g., Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949); Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); United States v. Jorn, supra; Illinois v. Somerville, supra. But at least two common threads run through all these cases: the recognition that the Perez doctrine defines the parameters of analysis, and the agreement that the “classic example” of “manifest necessity” is the discharge of a genuinely deadlocked jury. Downum, supra, 372 U.S. at 736, 83 S.Ct. 1033.

Had Castellanos here claimed that one or both of the mistrials were improperly declared, his double jeopardy claim would be within the analytical framework of the “manifest necessity” formulation. Perez warms that such mistrials should be declared only “with the greatest caution, under urgent circumstances, and for very plain and obvious causes,” 9 Wheat. (22 U.S.) at 580. If it appeared here that there was no “manifest necessity” for the mistrials — that the trial judge acted too quickly, or that it seemed that the jury was not really deadlocked — we might well be able to hold that the Double Jeopardy Clause barred retrial. But such is not the case here. Judge Dooling noted, and neither side disagrees, that the jury deadlocks were genuine, and that there was no sense in leaving the case in either panel’s hands any longer. Indeed, Castellanos does not appear to have objected to either mistrial declaration.

Thus, since each mistrial here concededly met the “manifest necessity” test, any claim of double jeopardy would appear to be barred by Perez and its progeny. Judge Dooling attempted to distinguish Perez, however, on the ground that but one mistrial was there involved. He noted that the Double Jeopardy Clause is designed not only to protect against double punishment, but also against the risk of multiple trials for a single offense. Price v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). Judge Dooling recognized, as has the Supreme Court on repeated occasions, that a criminal trial represents a heavy personal strain for a defendant, and that an accused has an important interest in getting a final verdict out of the first jury he faces. See Jorn, supra, 400 U.S. at 479, 91 S.Ct. 547 (opinion of Harlan, J.); Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). Since these policies behind the Double Jeopardy Clause were threatened by the prospect of a third trial here, Judge Dooling ruled that the Fifth Amendment required dismissal.

We cannot agree. It is obvious that the defendant’s interest in a final determination before the first jury he faces is not the only one here. If that were so, Perez would bar even the second trial, and contrary to the rule of United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), there would be no retrials after appellate reversals. But the eases clearly recognize that the accused’s right to a quick determination on the merits may in some instances be outweighed by the “ends of public justice,” Perez, supra, 9 Wheat. (22 U.S.) at 580, or put another way, “the public’s interest in fair trials designed to end in just judgments,” Wade v. Hunter, supra, 336 U.S. at 689, 69 S.Ct. at 837.

Judge Dooling recognized this tension between the rights of the accused and the public interest, and held that the appropriate balance was struck by limiting the government to two bites at the apple, at least where it appeared that no new evidence would be introduced at a third trial. But such an approach is the kind of “mechanical application of an abstract formula” that the cases condemn. Wade, supra, 336 U.S. at 691, 69 S.Ct. at 838. See also, Illinois v. Somerville, supra. Indeed, the Supreme Court decisions make it clear that it is the Perez standard itself which embodies the appropriate balancing test — the defendant’s interests bar retrial in all but those instances where there is “manifest necessity” for taking the case away from the jury. Since each mistrial was properly declared here, the Perez formulation tips the balance in the government’s favor, and does not constitutionally bar retrial. Accord, People v. Baker, 70 Misc.2d 986, 335 N.Y.S.2d 487 (Sup.Ct.1972). Cf. United States v. Berniker, 439 F.2d 686 (9th Cir.), cert. denied, 404 U.S. 938, 92 S.Ct. 277, 30 L.Ed.2d 250 (1971).

Even assuming arguendo that we could step outside the Perez test and invoke the Double Jeopardy Clause simply because a certain number of mistrials had occurred, we would still conclude that reversal is mandated here. If the appropriate interest of the defendant to be weighed is the avoiding of the harassment - and strain of multiple prosecutions, the situation where the first and second trials efid in deadlocked juries is hardly distinguishable from the case where the third trial occurs after one or more appellate reversals. Yet, in Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734 (1909), the Supreme Court has held that the Double Jeopardy Clause is not violated by retrial after a jury deadlock and an appellate reversal of a conviction. And, in United States v. Persico, 425 F.2d 1375, 1385 (2d Cir.), cert. denied, 400 U.S. 869, 91 S.Ct. 102, 27 L.Ed.2d 108 (1970), we upheld a fifth trial of several criminal defendants, following two appellate reversals and two mistrials.

Moreover, to the extent that factual measurements of the strain of multiple prosecution are possible, this case does not present a particularly unhappy picture. In contrast to the Pérsico defendants, whose first trial took place in 1961 and whose fifth trial took place in 1968, appellant here was first tried in March of 1972, and retried in August of that year. Each trial took only about three days, the defendant’s case rested wholly upon his own testimony and that of character witnesses, and the entire question for the jury was one of credibility. Even assuming that the Double Jeopardy Clause can in some case be invoked solely because of repeated jury disagreements — ■ an assumption we do not here make — this is not that case.

In short, while we commend Judge Dooling’s sensitivity to the rights of the accused, we cannot agree with the order below. Reversed.

      . The distinction may be illustrated by the following hypothetical. Assume that after a jury was impaneled, the trial court declared a mistrial because he thought the day too sunny to spend indoors. Surely, if the order were appealable, a reviewing court would have little difficulty finding it in error. Yet a defendant might well contend that retrial was barred by the Fifth Amendment, since jeopardy had attached upon impaneling of the jury and there was no “manifest necessity” for dee-laration of a mistrial. See the discussion in Part II, infra.

      Under the prior § 3731, the Fifth Amendment question would be irrelevant, for Sisson held appeals to be barred by the attaching of jeopardy, i. e., the impaneling of the jury. Under Mr. Justice White’s interpretation (and present § 3731), the Fifth Amendment question would have to be resolved to determine appealability — if retrial was barred, the appeal should be dismissed, if not, jurisdiction existed to reverse the order.

      . But see Preston v. Blackledge, 332 F.Supp. 681 (E.D.N.C.1971), where the district court held that double jeopardy barred a retrial of state criminal defendants after four deadlocked juries. While we doubt the correctness of the case’s reasoning, it is distinguishable from the one at hand on the basis of numbers, if nothing else.

      . Indeed, a tracing of the labyrinthine Pérsico proceedings indicates that at least one of the defendants, Hugh McIntosh, was tried the fifth time after two deadlocked juries and two reversals. The first trial on the indictment involved Carmine J. Pérsico, Jr., Salvatore Albanese, Ralph Spero, George LaFante, Joseph Magnasco, and McIntosh, and ended in a jury disagreement. The second trial resulted in convictions of all six; Magnasco was killed before sentencing, and we reversed the remaining convictions because of trial errors. 305 F.2d 534 (1962). The third trial ended in a mistrial on the eighth day as to Pérsico, Albanese, and Spero, after Pérsico was shot and wounded. The trial went to conclusion as to McIntosh and LaFante, but the jury disagreed. The fourth trial resulted in the conviction of all five remaining defendants, but we reversed again, for errors in the charge. 349 F.2d 6 (1965). The fifth trial again resulted in convictions of all but LaFante, whom the trial judge ordered acquitted for insufficient evidence.
      So, at the end of the process, Pérsico, Albanese, and Spero were tried the fifth time after two appellate reversals, one deadlocked jury, and one other mistrial; McIntosh’s fifth trial came after two deadlocked juries and two reversals. Thus, even if retrials after jury disagreements might somehow be distinguished from those following appellate reversals or other mistrials, at least one Pérsico defendant was retried after not only the two disagreements on which appellee bases his claim, but two reversals to boot.

      . We recognize that a strict application of the Perez analysis would lead to the conclusion that any number of retrials after jury disagreements did not violate the Double Jeopardy Clause, so long as the “manifest, necessity” doctrine was met in declaring each mistrial. However, it would still remain open for the defendant to argue that such a “trial by attrition” violated the Due Process Clause. Cf. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), holding that no amount of pre-indictment delay, however large, justified dismissal under the Speedy Trial Clause, but leaving open the possibility of due process objections upon a showing of prejudice.

      . Of course, nothing we say today requires a third trial. The point may well have been reached in this case where the government should properly conclude that further efforts at convicting Castellanos will be unproductive, or a poor use of overburdened resources. All that we hold is that a retrial is not constitutionally prohibited.


author: PER CURIAM:

text:
    Edward CHARLES, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellee.
    No. 72-1613.
    United States Court of Appeals, Fifth Circuit.
    May 29, 1973.
    William J. Terry, Tampa, Fla. (court appointed), for petitioner-appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Fla., P. A. Paeyna, Asst. Atty. Gen., Tampa, Fla., for respondent-ap-pellee.
    Before JOHN R. BROWN, Chief Judge, and TUTTLE and INGRAHAM, Circuit Judges.
   PER CURIAM:

In this habeas proceeding Appellant-Charles alleges that his conviction for breaking and entering of “The Little Brown Jug” in Brandenton, Florida, and the resultant 15-year confinement are illegal because (i) the Court improperly instructed the jury on the inference that may be drawn from possession of recently stolen property, (ii) notwithstanding the fact that the charge on the presumption to be drawn from possession might have been correct, Appellant did not have possession of the property, and (iii) that evidence of another crime was improperly admitted denying thereby a constitutionally fair trial. Agreeing with the District Court below that none of these contentions require that the State Court’s judgment be vacated, we affirm.

Appellant’s contentions (i) and (iii) require little comment. The charge on possession of recently stolen property does not deny Appellant’s right not to be a witness against himself. See, Young v. Wainwright, 5 Cir., 1971, 439 F.2d 426 and United States v. Townsend, 5 Cir., 1973, 474 F.2d 209. Townsend, which discusses the field of permissible inferences from possession of recently stolen property, clearly dispels any doubt that an inference, such as was drawn in the present case, rests on a constitutionally “confident assurance that it is more likely than not” that a person possessing property taken during the break-in was the perpetrator of the illegal entry. Appellant’s contention (iii) is without merit. We therefore consider whether Appellant had possession of the property.

Charles and a friend Alderman had been visiting diverse bars in the neighborhood of the break-in. Apparently they hoped that Mr. Alderman could make some money shooting pool but were unsuccessful at putting on a good “hustle”. However, Mr. Alderman, at least, was successful in putting on a good drunk. Departing a service station shortly after midnight they headed toward the Little Brown Jug, where they had been earlier, but stopped three or four blocks short. Alderman deposited Charles on the curb and left the scene to secure a hamburger for himself. A half an hour or so later he returned and saw Charles about a block from where he left him. Charles got into the automobile with a sack in his hands. Aider-man, however, did not see what was in the sack and did not see what Charles did with it after he got into the automobile. They drove to Nick’s bar where Charles got out and Alderman laid out on the front seat of the car and passed out in an alcoholic stupor. When he was awakened by the police who were checking out the car he was arrested for being drunk in public.

Alderman consented to a search of his car. He testified that during the entire evening no person other than he and Charles had access to the automobile until the time the police arrested him. The search occurred some 12 hours after the arrest, with the automobile having been left on the street in front of the police station over night. It was, however, locked, Charles was arrested hiding in the bushes near the parked automobile at the same time that Alderman was in an alcoholic stupor and incapable of breaking and entering. The evidence does not raise even a serious possibility that the stolen property was in the possession of anyone other than Charles. Further, even without the inference from recently stolen property, the evidence was sufficient to support the conviction of Appellant.

Affirmed.

      . Appellant was arrested wlien he w'as apparently about to begin the perpetration of another breaking and entering. The facts of his arrest were clearly relevant to whether or not he possessed certain instruments and clothing used in the commission of the breaking and entering for which he was convicted.

      . The attempted break-in at Nick’s bar was ' the extraneous crime for which Appellant alleges he was unconstitutionally tried — by the admission of evidence concerning its existence — at his trial for the illegal entry of the Little Brown Jug.


author: STEPHENSON, Circuit Judge.

text:
    The SEVEN-UP COMPANY, Appellant, v. FEDERAL TRADE COMMISSION et al., Appellees.
    No. 72-1680.
    United States Court of Appeals, Eighth Circuit.
    Argued April 12, 1973.
    Decided May 31, 1973.

      Earl W. Kintner, and Mark R. Joel-son, Washington, D. C., for appellant.
    James P. Timony, Atty., F. T. C., Washington, D. C., for appellees.
    Before LAY and STEPHENSON, Circuit Judges, and TALBOT SMITH, District Judge.

       Eastern District of Michigan, sitting by designation.

   STEPHENSON, Circuit Judge.

The Seven-Up Company appeals from the order of the District Court dismissing appellant’s claim for lack of subject matter jurisdiction. Seven-Up sought below to enjoin the Federal Trade Commission from further action in its proceedings against Seven-Up, alleging that the administrative proceeding itself is fatally defective without the joinder of Seven-Up’s 470 bottlers as indispensible parties.

Seven-Up, along with several other major soft drink manufacturers, has been charged by the FTC with using an unfair method of competition through its license agreements with bottlers whereby the bottlers agree to not sell outside of designated geographical areas. Seven-Up moved to dismiss the administrative complaint, claiming that the bottlers are in-dispensible parties since they have important contract rights which are at stake in the proceedings. The motion to dismiss was denied by the Hearing Examiner whose order was then upheld by the Commission. Seven-Up then petitioned the District Court for both injunctive and declaratory relief.

The Coca-Cola Company and PepsiCo., Inc., other respondents in the FTC proceedings, have both unsuccessfully presented the identical claim to the Fifth and Second Circuits. Coca-Cola Company v. FTC, 475 F.2d 299 (CA5 1973) and PepsiCo., Inc. v. FTC, 472 F.2d 179 (CA2 1972). We particularly agree with the reasoning of the Fifth Circuit and likewise hold that the action was properly dismissed for lack of subject matter jurisdiction.

Federal Courts have traditionally declined to interfere with on-going agency proceedings under the doctrine requiring exhaustion of administrative remedies. See, McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971); McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) and Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-52, 58 S.Ct. 459, 82 L.Ed. 638 (1938). Furthermore, Congress has here specified a statutory scheme which contemplates judicial review of cease and desist orders issued by the FTC exclusively by a court of appeals. 15 U.S.C. § 45 (c) and (d) provide in pertinent part that:

(c) Any person, . . . required by an order of the Commission to cease and desist from using any method of competition or act or practice may obtain a review of such order in the court of appeals of the United States,
(d) . . . the jurisdiction of the court of appeals . . . shall be exclusive.

This is fully in harmony with § 10 (c) of the Administrative Procedure Act. See 5 U.S.C. § 704 and Coca-Cola, supra, 475 F.2d at 302.

The statutory provisions for review, however, have been held not to preclude district court review under all circumstances. See Elmo Division of Drive-X Co. v. Dixon, 121 U.S.App.D.C. 113, 348 F.2d 342, 343 (1965) and PepsiCo, supra, 472 F.2d at 185. Compare, Coca-Cola, supra, 475 F.2d at 302. It has been held that district courts have jurisdiction to grant relief during agency proceedings which are not yet final in certain specific instances. These include, (1) where the agency has acted in excess of its delegated powers or contrary to a specific statutory mandate. Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958); (2) where the proceedings involve questions of high national interest because of their international complexion. McCulloch v. Socie-dad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963) and (3) where the agency has clearly violated the constitutional rights of the party seeking prior, restraint. Fay v. Douds, 172 F.2d 720 (CA2 1949). Seven-Up clearly has not brought itself within any of these exceptions to the rule against judicial review of interlocutory agency rulings.

Seven-Up further asserts, however, that the FTC’s refusal to join the bottlers as parties in its proceedings amounts to “final agency action for which there is no other adequate remedy in a court” under the Administrative Procedure Act. 5 U.S.C. § 704. We disagree, for while the Commission’s ruling on Seven-Up’s motion at the most amounts to final agency action on the joinder issue, judicial review by a court of appeals can clearly be had once the Commission’s proceedings are concluded. 5 U.S.C. § 704 goes on to provide that an interlocutory agency ruling “is subject to review on the review of the final agency action.” Neither are we convinced that the absence of the bottlers as parties renders the proceedings so fundamentally defective that immediate judicial relief is required. As the Fifth Circuit stated in Coca-Cola, 475 F.2d at 304:

The extraordinary remedy of judicial intervention in agency proceedings still in process is unavailable unless necessary to vindicate an unambiguous statutory or constitutional right, and only when this condition is satisfied will a court look to the general body of equitable jurisprudence and other appropriate sources for the purpose of fashioning relief. To adopt the plaintiffs’ position, on the other hand, would be to make the rule that judicial intervention to “correct” an interlocutory agency ruling is available wherever an agency ruling differed from some equitable maxim.

We conclude that Seven-Up must await a cease and desist order by the FTC, if such is ever to be issued, before jurisdiction will lie for a review of the interlocutory ruling it challenges.

Affirmed.

      . The manufacturers were charged in separate complaints.

      . While we do not reach the merits of the indispensible party issue, we note that the joinder question also contains a dispute as to the underlying facts. The Hearing Examiner allowed any of the 470 bottlers to intervene if they so wished. One intervened. Seven-Up, however, asserts that this right to intervene was “limited” and insufficient. The ETC disagrees. See, e. g., PepsiCo., Inc. v. F. T. C., 472 F.2d 179, 183-184 (CA2 1972).

      . We reject as without merit Seven-Up’s contention that the standard of review on the joinder question, once the agency proceedings are completed, will necessarily be more stringent,


text:
    De Raine O. ANDRY, Plaintiff-Appellant, v. FARRELL LINES, INC., Defendant-Appellee.
    No. 72-2502.
    United States Court of Appeals, Fifth Circuit.
    May 21, 1973.
    Henry L. Klein, Sherman F. Raphael, New Orleans, La., for plaintiff-appellant.
    Michael L. McAlpine, New Orleans, La., for defendant-appellee.
    Before COLEMAN, MORGAN and RONEY, Circuit Judges.
   PER CURIAM:

In this Jones Act case, 46 U.S.C.A. § 688, the District Court denied plaintiff’s motion for a directed verdict on the questions of negligence and unseaworthiness. In answer to special interrogatories, the jury found the vessel seaworthy, the defendant free from negligence, and the plaintiff “100% contribu-torily” negligent. Plaintiff challenges the District Court’s failure to grant a directed verdict and its instructions to the jury regarding the negligence and unseaworthiness. We affirm.

Plaintiff, employed as a “wiper” in the engine room of defendant’s vessel, alleged that, while the vessel was docked, he was struck by the door of an evaporator he was cleaning. He alleged that the door swung shut unexpectedly as the vessel was rolled by a “sneak wave.” No witnesses other than plaintiff testified about the accident, and he sought to sustain his burden of proof solely through his own testimony.

I.

From our examination of the evidence presented, we conclude that, weighing all the evidence, reasonable men could have reached different conclusions. Thus, the motion for a directed verdict was properly denied, and the questions of fact correctly left for the jury to decide. See Mayfield v. Chisholm-Moore Hoist Division, Columbus McKinnon Corp., 467 F.2d 483 (5th Cir. 1972); Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969).

II.

Plaintiff argues that the District Court’s charges on negligence and unseaworthiness were “vague, insufficient, and inadequate.” The standard for appellate review of jury instructions is clear: the charge must be viewed as a whole. If the charge in general correctly instructs the jury on the law, even though a portion is technically imperfect, no harmful error is committed. Bolden v. Kansas City So. Ry. Co., 468 F.2d 580 (5th Cir. 1972); Troutman v. Southern Ry. Co., 441 F.2d 586 (5th Cir. 1971); Webster v. Sea Drilling Corp., 411 F.2d 411 (5th Cir. 1969).

Though presented in a somewhat colloquial fashion, the trial court’s instructions on negligence contained all the essential elements of the standard charge. Plaintiff is particularly disturbed by the court’s use of an automobile simile in discussing causation. The trial court, however, was careful to note the limits of the analogy and explained that the example was employed only for illustrative purposes. The structure and illustrations of a charge are within the trial court’s discretion. The court need not use any particular form of words so long as “the charge as a whole conveys to the jury a clear and correct understanding of the applicable law.” See 2B W. Barron & A. Holtzoff, Federal Practice and Procedure, 471 (1961).

Plaintiff premised his allegation of unseaworthiness on the fact that the evaporator door had no latch to secure it in an open position. He criticizes the charge as to unseaworthiness for its failure to mention the hazards vessels undergo at sea and in port, the observation that failure to secure a door amounted to negligence rather than unseaworthiness, and the omission of a proposed charge that seamen do not assume the risks of their employment. The District Court’s instructions, however, appear to us to be pertinent to the issues and testimony presented. The uncontradicted evidence showed that the evaporator door was opened only when the ship was in port. The aspects of the charge challenged by plaintiff, if error, were harmless and therefore insufficient for reversal. F.R.Civ.P. 51. The jury was fairly instructed, and its verdict for the defendant decided the issues in this case.

Affirmed.


author: FEINBERG, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Paul GUZMAN, Appellant.
    No. 682, Docket 73-1522.
    United States Court of Appeals, Second Circuit.
    Argued April 19, 1973.
    Decided May 7, 1973.

      Jesse Berman, New York City, for appellant.
    George E. Wilson, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., for the S. D. New York, on the brief), for appellee.
    Before CLARK, Associate Justice, and WATERMAN and FEINBERG, Circuit Judges.

       Retired Associate Justice of the Supreme Court of the United States, sitting by designation.

   FEINBERG, Circuit Judge:

Paul Guzman appeals from an order of the United States District Court for the Southern District of New York, Charles M. Metzner, /., refusing to reduce Guzman’s two-year sentence and denying him other requested relief. The sentence was imposed upon Guzman in March 1972 after he had been convicted of failure to report for an armed forces physical examination and failure to report for induction. We affirmed that conviction, 468 F.2d 1245 (2 Cir. 1972), and the Supreme Court denied certiorari, 410 U.S. 937, 93 S.Ct. 1397, 35 L.Ed.2d 602 (1973). Guzman then moved under Fed.R.Crim.P. 32(c) and 35 for the relief denied by the order now under attack.

Guzman raises three points on appeal, two of which are based upon various changes in appellant’s circumstances since his conviction over a year ago. These changes, as presented to Judge Metzner, were that Guzman had married, his wife faced major surgery, he was gainfully employed and had an opportunity to earn badly needed funds by writing one book and collaborating on another, and he was now willing to undertake civilian service as a condition of probation, an alternative to which he had apparently been conscientiously opposed at the time of sentence. Judge Metzner considered these new facts and, in a four-page memorandum, refused to reduce the sentence. Guzman argues that this was somehow an abuse of discretion. The claim is frivolous.

Similarly without merit is Guzman’s argument that the judge should have (1) allowed him to inspect the original pre-sentence report prepared for the March 1972 sentence and (2) ordered an updating of the report. Whatever may have been the proper course in March 1972 had a request then been made for inspection of the report— apparently none was — there was simply no good reason to turn it over a year later. Similarly, there was no need to update the report, because the judge assumed the truth of Guzman’s claim of new circumstances but was not persuaded by them to change the sentence.

Guzman’s final point is the only one of any substance, but it rests upon an equivocal record. Relying upon United States v. Waters, 141 U.S.App.D.C. 289, 437 F.2d 722 (1970), Guzman argues that the district court erred in sentencing him.as an adult without first expressly finding that he should not be sentenced under the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq. There is no doubt that Judge Metzner made no such finding. There is a great deal of doubt, however, that he was ever asked to do so. Guzman’s motion papers, dated and filed March 15, 1973, made no mention of the Act, and the judge’s memorandum opinion did not deal with this argument. Guzman’s counsel, however, maintains in this court that he did raise the point below. As proof, he relies upon his own affidavit, dated March 29, 1973, filed in the district court in support of a motion for a stay of execution of sentence pending appeal. He there swore, after correctly summarizing the relief he had requested in the March 15 motion papers:

On March 16, 1973, counsel for defendant also advised this Court [the district court], through one of the Court’s law clerks, that defendant was also alerting the Court to the possibility of defendant being sentenced under the provisions of the Youth Corrections Act (18 U.S.C. § 5010) and under the provision of 18 U.S.C. § 4208(a)(2), making him immediately eligible for consideration for parole.

One may wonder at this informal method used to urge upon the district court the argument now pressed as the principal ground for reversal. It seems fairly apparent that the judge never considered this point, presumably because it was not brought to his attention. We clearly would be justified in holding that the issue was never properly raised below. However, the claim goes to the legality of the sentence, and will undoubtedly be raised again in a post-conviction petition. Moreover, the legal argument regarding the absence of a finding may disappear once the possibility of applying the Youth Corrections Act is pointed out to the judge in an appropriate way. Finally, it is possible that the judge will decide to extend to Guzman the benefits of treatment under the Act, although we express no view as to that. Therefore, while we do not imply that the judge was in any way remiss, we are remanding to allow the suggestion of Youth Corrections Act treatment to be made properly to the district judge.

In remanding, we do not decide whether a district judge, before sentencing a defendant under 22 as an adult, must make an express finding under 18 U.S.C. § 5010(d) that “the youth offender will not derive benefit from treatment under” the Act, see United States v. Coefield, 476 F.2d 1152 (D.C.Cir. 1973) (en banc), or whether an implied finding is sufficient, compare Cox v. United States, 473 F.2d 334, 337 (4th Cir. 1973) (en banc), with United States v. Jarratt, 471 F.2d 226, 230 (9th Cir. 1972), or whether no finding, express or implied, is required. We hold only that under the circumstances here, including the ambiguous record, there should be a resentencing by the district judge, at which time Guzman may request Youth Corrections Act treatment.

Remanded for further proceedings consistent with this opinion. The mandate shall issue forthwith.

      . The judge did postpone the surrender date to allow Guzman to remain on bail until after his wife’s operation.

      . We regard as frivolous Guzman’s request for resentencing by another judge.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joe Grady MURRAH, Defendant-Appellant.
    No. 72-3491
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 26, 1973.

      James E. Davis, Texarkana, Ark., for defendant-appellant.
    Roby Hadden, U. S. Atty., Dennis R. Lewis, Asst. U. S. Atty., Tyler, Tex., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

Joe Grady Murrah appeals from his judgment of conviction and sentence to concurrent ten and five year confinement sentences for (1) aiding and abetting the robbery of an FDIC insured bank, (Title 18, U.S.C. Secs. 2113(d) and 2), and (2) conspiracy to commit said bank robbery (Title 18 U.S.C. Sec. 371).

The claims of error raised on appeal are (a) improper jury instructions as to consideration of accomplice testimony, (b) improper jury instructions as to the specific intent required to be proved under the substantive count, and (c) impermissible use of hearsay testimony to prove that the bank was FDIC insured at the time of the robbery. We affirm.

Responding to the first contention, we do not find harmful error demonstrated in the instructions given when the several portions of the entire charge are weighed in relation each to the other.

The objection to the instructions concerning requisite specific intent is raised for first time on appeal, not having been preserved for review as required by Rule 30, F.R.Crim.P. Assuming without deciding that the charge might have been appropriately clarified if timely objected to, we reject the attack on it as failing to demonstrate “plain error”. Rule 52(b), F.R.Crim.P.

The entire proof offered with respect to the FDIC insured status of the bank at the time of the robbery is reproduced in the margin. The witness was no longer connected with the bank when he testified, but he had been its president the year before at the time of the robbery. He testified from personal knowledge that the bank’s deposits were in fact federally insured and gave the certificate number, 19936-2 from memory. Of course proof of FDIC insured status is a required element of proof of the offense. Indeed it is necessary to allege and prove it to establish federal jurisdiction. But appellant fails to demonstrate prejudice to him in the overruling of his objections on the grounds of “best evidence” or “hearsay”. No evidence contrary to that of Cureton was offered by appellant. The cases he cites, King v. United States, 9 Cir.1970, 426 F.2d 278, and Kane v. United States, 8 Cir.1970, 431 F.2d 172 do not offer support to our reaching a different result. Indeed Kane, 431 F.2d at 175-176, albeit in dictum, holds that the original insurance certificate while clearly the best evidence, need not be produced.

Affirmed.

      . DIRECT EXAMINATION OF MARVIN THOMAS CURETON BY MR. LEWIS :
      Q. Mr. Cureton, will you please state your full name for the record, please?
      A. My name is Marvin Thomas Cureton.
      Q. Mr. Cureton, how are you currently employed?
      A. I am a vice-president with the First Federal Savings & Loan Association here in Marshall.
      Q. How were you employed, Mr. Cureton, in the first part of 1971?
      A. I was the president of the Security State Bank in Elysian Fields, Texas.
      Q. In the course of that employment, Mr. Cureton, are you able to say that that bank was insured by the FDIC?
      A. Yes, it was.
      MR. DAVIS: Your Honor—
      THE WITNESS: (interrupting) And it is.
      THE COURT: Just a moment.
      MR. DAVIS: I object to his testimony in this regard because being insured by the FDIC, if it is admissible at all, it is a business record. He is no longer the custodian of that business record and the best evidence of the bank’s being insured is the Certificate of Insurance.
      THE COURT: Well, if he knows of his own personal knowledge that it w,as insured by the FDIC, then he can testify to it.
      Overruled.
      What was your answer?
      THE WITNESS: Yes, Sir, it was and is still insured by the FDIC'.
      BY MR. LEWIS:
      Q. Further, Mr. Cureton, are you aware of what the certificate number of the Certificate of Insurance is?
      A. Yes, sir, I have it here. It is 19936—
      MR. DAVIS: (interrupting) Your Hon- or, again I object to it as hearsay.
      THE COURT: Overruled.
      BY MR. LEWIS:
      Q. Go ahead, please, sir.
      A. 19936-2.

      . See further the helpful discussion of the point in a 9th Circuit case decided shortly after King, United States v. Phillips, 9 Cir. 1970, 427 F.2d 1035, 1037. See also United States v. Huff, 5 Cir. 1969, 409 F.2d 1225, 1227, Note 1, (error not committed when allegedly improperly authenticated certificate was received); Ahlstedt v. United States, 5 Cir. 1963, 325 F.2d 257 (uncontradicted but objected to testimony by bank officer that to his knowledge bank was at time of trial federally insured and identification of certificate by that officer was sufficient proof of insurance at time of bank robbery); and Cook v. United States, 5 Cir. 1963, 320 F.2d 258 (bank officer’s unobjected to testimony that bank’s deposits were federally insured held sufficient proof, even though not addressed to date of robbery) .


author: PER CURIAM.

text:
    O. W. DONALD, Plaintiff-Appellant, v. UARCO BUSINESS FORMS, Defendant-Appellee.
    No. 72-1463.
    United States Court of Appeals, Eighth Circuit.
    Jan. 30, 1973.

      Roy Gean, Jr., Fort Smith, Ark., for plaintiff-appellant.
    Hofgren, Wegner, Allen, Stellman & McCord, Chicago, 111., and P. D. Hardin, Fort Smith, Ark., for defendant-appel-lee.
    Before HEANEY, BRIGHT and ROSS, Circuit Judges.
   PER CURIAM.

This is an appeal from an order granting the appellee’s motion for judgment notwithstanding the verdict, D.C., 344 F.Supp. 338. The order followed a jury award of $7,000 to the appellant and against the appellee for copyright infringement.

The appellant obtained a copyright upon the following wording:

“AGREEMENT
“I hereby acknowledge receipt of the above described merchandise, with itemized repairs completed thereto. I promise to pay to the servicer, or order, in full, the amount listed as ‘total’, on, or before the date listed as ‘terms’. Title to said chattel, described hereon by model, make, and serial number, is hereby transferred to the servicer, for service, and or, materials used to repair said chattel. I offer this chattel in lieu of cash for services rendered, and agree not to misuse, secrete, sell, encumber, remove, or otherwise dispose of, or lose possession of said chattel, nor permit nor suffer any lien, encumbrance or charge against said chattel. There is no outstanding indebtedness, lien, mortgage, or other encumbrance against said chattel. I agree that should I fail to pay this indebtedness when due, or breach this contract, the entire unpaid balance shall at once become due and payable, and servicer may without notice, or demand, by law or otherwise, take possession of said chattel wherever located and retain all monies paid thereon for use of said chattel.”

This wording was included on a form used by repair service companies. The copyright notice was printed at the bottom of each form.

The appellant sold a set of these forms to Jensen’s T.V. & Appliance Store, a repair service company in Preston, Idaho. When Jensen’s used the last of appellant’s forms, it asked the appellee to print up a set of forms identical to appellant’s forms. The appellee did so with a single modification — viz., the notice of appellant’s copyright was omitted. The appellant discovered the fact that the appellee had reprinted his form, and brought this suit against it for copyright infringement. The trial court, notwithstanding the jury verdict, found that the copyrighted form did not have the requisite originality necessary for a valid copyright to exist. It found that the copyright was not valid and that, therefore, there was no infringement. We affirm.

The basic standard in copyright law is that only a minimal amount of creativity and originality is necessary to support a valid copyright. Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99 (2nd Cir. 1951). Where a work is based on a work already in the public domain, a valid copyright may not exist in the new work unless it shows more than a trivial variation from the old work. Amsterdam v. Triangle Publications, Inc., 189 F.2d 104 (3rd Cir. 1951). However, if a work is independently created, it is entitled to a copyright even though it is identical to a work in the public domain. Alfred Bell & Co. v. Catalda Fine Arts, supra, 191 F.2d at 103; Fred Fisher, Inc. v. Dillingham, 298 F. 145, 149 (S.D.N.Y.1924).

We have carefully reviewed the transcript of the trial and the records of the lower court, and find that the appellant had knowledge of, and drew upon, legal forms which already existed in the public domain when he drafted his form. Most of the form is phrased in standard legal language. The appellant’s testimony leads us to the conclusion that he had seen similar language many times before.

The basic issue is whether the appellant’s form shows the minimum degree of creativity and originality necessary to support a valid copyright. The appellant argues that he is entitled to a copyright because this is the.first time such language has been used in a service contract even though the language has previously been used in sales contracts which were already existing in the public domain. We do not believe that this difference makes the appellant’s work more than a trivial variation from that already in the public domain. Therefore, the appellant is not entitled to a copyright on his “Agreement.” See, Donald v. Zack Meyer’s T.V. Sales and Service, 426 F.2d 1027 (5th Cir. 1970), cert. denied, 400 U.S. 992, 91 S.Ct. 459, 27 L.Ed.2d 441 (1971); M. M. Business Forms Corp. v. March, Inc., 347 F.Supp. 419 (S.D. Ohio 1972); Gardenia Flowers, Inc. v. Joseph Markovitz, Inc., 280 F.Supp. 776 (S.D.N.Y.1968).

The appellant also alleges on appeal that the appellee engaged in unfair competition. We have examined the record, and it appears that the issue of unfair competition was not submitted to the jury below. Therefore, this issue is not properly before us. In any event, the only allegation of unfair competition was that the appellee copied the appellant’s form verbatim. Such copying alone does not constitute unfair competition. Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964); Grove Press, Inc. v. Collectors Publication, Inc., 264 F.Supp. 603 (C.D.Calif.1966).

Judgment affirmed.

      . A copyright certificate will be issued through a registration procedure in which the validity of the copyright is not examined. 17 U.S.C. § 1. However, such a certificate will not remain in force if the subject matter, which it purports to cover, is in the public domain.. See, 17 U.S.C. § 8; Donald v. Zack Meyer’s T. V. Sales and Service, 426 F.2d 1027 (5th Cir. 1970), cert. denied, 400 U.S. 992, 91 S.Ct. 459, 27 L.Ed.2d 441 (1971).


text:
    UNITED STATES of America, Appellee, v. Dale Ray HALEY, Appellant.
    No. 72-1766.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 13, 1973.
    Decided May 11, 1973.

      Samuel Boyer, Jr., Omaha, Neb., for appellant.
    Thorwald Anderson, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before LAY and STEPHENSON, Circuit Judges, and TALBOT SMITH, District Judge.

       Eastern District of Michigan, sitting by designation.

   STEPHENSON, Circuit Judge.

This appeal presents the question of whether a statutory miscitation in the indictment mandates a sentence within the limits of the miscited statute.

Defendant, Dale Ray Haley, was convicted along with others with conspiring to violate the narcotic laws, Title 26 U.S.C. § 4705(a). A 20-year sentence was imposed. His conviction was previously affirmed by this Court. United States v. Haley, 452 F.2d 391 (CA8 1971), cert. denied, 405 U.S. 978, 92 S.Ct. 1205, 31 L.Ed.2d 253 (1972).

The instant indictment upon which defendant was convicted charged defendant (and others) with conspiracy:

“ . . .to violate Title 26 United States Code, Section 4705(a), that is, to sell, barter, exchange and give away to others narcotic drugs, that is, heroin hydrochloride and cocaine hydrochloride, not in pursuance of written orders, written for that purpose as provided by law in violation of Title 18, United States Code, Section 371.”

Defendant contends that the general verdict of guilty upon the above charge is a conviction of general conspiracy under 18 U.S.C. § 371 and therefore 5 years is the maximum sentence that could be imposed.

In pronouncing sentence the Court recited that defendant had been convicted of conspiring with others “. . .to violate 26 United States Code, 4705(a) in violation of 26 United States Code 7237(b).” At no time during the sentencing did defendant object to the twenty-year sentence being imposed under § 4705(a) and § 7237(b). Neither was this issue raised in his direct appeal. This matter was first raised by defendant in his motion to reduce sentence filed after our affirmance and the denial of certiorari.

The trial court in denying defendant’s motion observed:

“Defendant at this time has not indicated how the miscitation could have prejudiced him in this case. In the indictment it is clear that defendant was charged with conspiracy to violate [26] U.S.C. 4705(a), thus the indictment was not so defective as to misinform defendant of the crime with which he was charged. Nor was there a material variance between the indictment and the proof. United States v. Schrenzel, 462 F.2d 765 (8th Cir. 1972). Further, the jury instructions for conspiracy were unaffected by the miscitation. Without any showing of prejudice defendant’s motion for a correction in sentence cannot be granted.”

The trial court indicated its ruling was without prejudice to the defendant renewing his motion if he could demon-state that he was prejudiced by the mis-citation in the indictment. Thereafter defendant filed a motion for correction of an illegal sentence to which he attached this Court’s opinion affirming his conviction and a copy of the indictment returned against him. No new facts were presented to the trial court at the hearing on the motion to correct an illegal sentence. The motion was promptly denied. We find no evidence that defendant was prejudiced by the statutory miscitation and therefore affirm.

Rule 7(c) Fed.R.Crim.P. provides in part as follows:

“ . . . The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not niislead the defendant to his prejudice.”

In Tanksley v. United States, 321 F.2d 647 (CA8 1963) we held that a miscitation of the statute involved did not require reversal unless prejudice was shown. See also, United States v. Bates, 429 F.2d 557, 559-560 (CA9 1970); Brown v. United States, 112 U.S.App.D.C. 57, 299 F.2d 438, 440 (1962).

In the instant case defendant was charged with conspiring to violate 26 U. S.C. § 4705(a), to sell narcotic drugs. 26 U.S.C. § 7237(b) specifically provides the penalty for conspiring to violate 4705 (a). After review of the record we are satisfied that the miscitation of the general conspiracy statute, Title 18 U. S.C. § 371, did not misinform the defendant as to the charge. Neither was he misled as to the possible penalties involved. Defendant having failed to make any showing that he was prejudiced by the statutory miscitation was properly denied the relief requested.

Affirmed.

      . Defendant was also convicted upon substantive charges of dispensing and distributing heroin, 26 U.S.C. § 4704(a) and selling lieroin, 26 U.S.C. § 4705(a) in the Southern District of Iowa. Sentences imposed were to run concurrently with the instant Minnesota conspiracy charge. Affirmed, United States v. Haley, 452 F.2d 398 (CAS 1971).

      . 26 U.S.C. § 7237(b) : “Whoever commits an offense, or conspires to commit an offense, described in section 4705(a), or section 4742(a) shall be imprisoned not less than 5 or more than 20 years and, in addition, may be fined not more than $20,000. * *
      The editor’s notes to 26 U.S.C.A. § 4705 include as cross references, “Punishment for violation of narcotic laws, see section 7237 of this title.”


text:
    UNITED STATES of America, Appellee, v. John MILLER, Jr., Appellant.
    No. 72-2312.
    United States Court of Appeals, Fourth Circuit.
    Argued March 7, 1973.
    Decided May 16, 1973.

      Andrew S. Fine and Morris H. Fine, Norfolk, Va. (R. Wayne Nunnally and Fine, Fine, Legum & Fine, Norfolk, Va., on brief), for appellant.
    Frank D. Allen, Atty., U. S. Dept, of Justice (David L. Norman, Asst. Atty. Gen., Brian P. Gettings, U. S. Atty., and Mary Planty, Atty., U. S. Dept, of Justice, on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and BOREMAN and WINTER, Circuit Judges.
   PER CURIAM:

John Miller, Jr., a migrant farm labor contractor, was convicted of holding certain persons to involuntary servitude by preventing them from leaving his employ and control 2and of twice failing to furnish them with statements of earnings and deductions. Several grounds for reversal are advanced, but we find merit only in the contention that the district court was too restrictive in limiting the cross-examination of a government witness on his record of prior convictions. We reverse and award a new trial.

At trial, the government’s chief witness was John Gordon Moore. He testified that he was tricked into coming to defendant’s labor camp and once there he was beaten by defendant and forced to work against his will. He testified also that he was given no written statement of his earnings or of the money withheld from his earnings.

Although Moore’s testimony was corroborated in large part by a number of other witnesses, defendant testified in his own behalf and directly controverted Moore. Defendant also offered extensive testimony to show that his camp was not fenced, that there were no guards, that there were no locks, and that farm laborers, including Moore, were free to come and go without restraint. Although there was clearly sufficient evidence from which a jury might conclude that defendant was guilty, the evidence was sharply conflicting and much of the weight of the government’s evidence depended upon the credibility of Moore.

When Moore was cross-examined, defendant’s counsel sought to interrogate him about convictions of crimes involving moral turpitude. In fact, Moore had been convicted of six felonies over the years 1943 to I960. Five were prior to 1954. The record neither reflects their nature nor the punishment imposed. The district court ruled, in response to an inquiry by counsel, that counsel could not inquire about more than one conviction and could not inquire into the nature of even that one. In accordance with the ruling, counsel asked Moore, “Have you been convicted of a crime involving moral turpitude?” and Moore responded, “Yes.” A motion for a new trial, based in part on undue limitation on the opportunity to impeach Moore, was denied.

“Prior criminal convictions for felonies or misdemeanors involving moral turpitude ordinarily constitute material impeaching evidence,” was our statement in United States v. Hildreth, 387 F.2d 328, 329 (4 Cir. 1967). Of course, in that case, we also said that the trial court has discretion to limit such impeachment, especially of a defendant, when there is reason to apprehend that “the prejudicial effect of the earlier convictions . . . will outweigh their possible probative force in impeaching credibility.” Id. 329.

In no sense to depart from this holding, we think that the district court exceeded its discretion in the instant case. Moore was not a defendant. His credibility was a major issue in the case. The district court may properly have refused to permit interrogation about convictions remote in time, depending upon their nature and the extent to which they involved dishonesty or false statements. This is a matter we cannot decide on this record. But we do not think that, having exercised his discretion to permit impeachment on the most recent conviction, the district court should have refused to permit interrogation about the time and place of conviction, the nature of the offense, and the punishment imposed.

Reversed; new trial awarded.

      . 18 U.S.C.A. § 1584.

      . 7 U.S.C.A. § 2045(e).

      . By contrast, defendant had no prior convictions.

      . “How far may the cross-examiner go in his inquiries about convictions? He may ask about the nature of the crime committed, i. e., murder or embezzlement, and the punishment awarded . . . the more reasonable practice ... is [to permit inquiry into] . . . the name of the crime, the time and place of conviction, and. the punishment . . . ” (footnotes omitted). McCormick on Evidence (1972 Ed.) § 43, p. 88. See Beaudine v. United States, 368 F.2d 417, 421-422 (5 Cir. 1966).


text:
    CONTAINER SERVICE COMPANY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 72-1777.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 13, 1973.
    Decided May 8, 1973.
    Peter J. Donahue, Dayton, Ohio, for plaintiff-appellant; Smith & Schnacke, Dayton, Ohio, on brief.
    Donald H. Olson, Atty., Tax Div., Dept, of Justice, Washington, D. C., for defendant-appellee; Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwaeks, Leonard J. Henzke, Jr., Attys., Tax Div., Dept, of Justice, Washington, D. C., on brief; William W. Milligan, U. S. Atty., of counsel.
    Before PHILLIPS, Chief Judge, KENT, Circuit Judge, and McALLIS-TER, Senior Circuit Judge.
   PER CURIAM.

Taxpayer, Container Service Company, seeks a reversal of the District Court’s dismissal of its tax refund suit. We affirm.

The facts are detailed in the District Court’s opinion. 345 F.Supp. 235 (S.D. Ohio 1972). In 1968 the taxpayer established a profit sharing plan for its salaried employees and claims that its contributions made to the profit-sharing trust were tax deductible under 26 U.S.C. § 404(a). Employer contributions to a profit-sharing trust are tax deductible only if the profit-sharing plan is qualified under 26 U.S.C. § 401(a).

The employee coverage requirements are set out in § 401(a)(3) in two alternatives. A plan is qualified if either (A) the plan benefits at least 70 per cent of all employees or 80 per cent of eligible employees if 70 per cent of all employees are eligible or (B) the employer’s eligibility classification does not discriminate in favor of employees who are officers, shareholders, supervisors or highly compensated employees.

In 1968 taxpayer employed twenty persons, of whom five were eligible for the profit-sharing plan in question. In 1969 five of twenty-one employees were eligible. Each year four of the five eligible employees were either officers or supervisors. The Commissioner of Internal Revenue held that the plan was discriminatory under § 401(a)(3)(B), and ruled that it therefore was not qualified. The taxpayer’s claim for a deduction for its contributions was denied. This finding is not irrebuttable, but the taxpayer bears a very heavy burden in attempting to overturn it. Cornell-Young Co. v. United States, 469 F.2d 1318 (5th Cir. 1972); Duguid & Sons, Inc. v. United States, 278 F.Supp. 101, 106 (N.D.N.Y.1967); Ed & Jim Fleitz, Inc., 50 T.C. 384 (1968).

Taxpayer seeks to justify the apparently discriminatory classification by asserting that all of its nonsalaried employees were unionized and that the union, ás a matter of negotiation strategy, withdrew any demand for inclusion in profit-sharing or pension plan in favor of immediate wage benefits. Taxpayer asserts that since it would have been an unfair labor practice for it to have included union members in the profit-sharing plan by unilateral action, the union’s refusal to seek inclusion somehow justifies their exclusion and qualifies the plan as non-discriminatory.

Without ruling on this contention, we hold that there is no evidence in the record that the employees, through their union, were ever offered inclusion in the plan by the taxpayer. The union representatives who negotiated the latest bargaining agreement with the company testified that they were never informed of the plan’s existence or its details, much less tendered inclusion in it. We agree with the District Court that this plan was discriminatory in favor of shareholder-officers and supervisors. Other courts have ruled similarly when faced with the same claim concerning the unionization of non-salaried employees. Loevsky v. Commissioner, 471 F.2d 1178 (3rd Cir. 1973), aff’g, 55 T.C. 1144 (1971); Duguid, supra,; Ed & Jim Fleitz, Inc., supra.

We emphasize that by this decision we neither make nor imply any ruling as to the effect of a union’s refusal of an offer of inclusion in an employer’s profit sharing plan. That situation is not before us.

Affirmed.