author: LEWIS, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael Sherwood NEWMAN and Andrew Forga Coldwell, Defendants-Appellants.
    Nos. 73-1540, 73-1541.
    United States Court of Appeals, Tenth Circuit.
    Feb. 6, 1974.
    John B. Jarboe, of Jarboe & Keefer, Tulsa, Okl., for appellant Newman.
    Leslie L. Conner and James M. Little, Oklahoma City, Okl. (Leslie L. Conner, Jr., Oklahoma City, Okl., and Irvine E. Ungerman, Tulsa, Okl., with them on the brief), for appellant Coldwell.
    Ben F. Baker, Asst. U. S. Atty. (Nathan G. Graham, U. S. Atty., N. D. Okl., with him on the brief), for appellee.
    Before LEWIS, Chief Judge, and HOLLOWAY and McWILLIAMS, Circuit Judges.
   LEWIS, Chief Judge.

Appellants Newman and Coldwell have directly appealed from their convictions for possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). Jury trial was waived and the trial was before the United States District Court for the Northern District of Oklahoma.

Uncontroverted evidence introduced at trial revealed that at approximately one o’clock on the morning of September 1, 1972, Border Patrol Agent George Jackson was on duty observing traffic at a turnpike gate on the east end of the Will Rogers Turnpike near Miami, Oklahoma. He first observed appellants Newman and Coldwell as they approached thé gate in a pickup truck bearing Texas license plates. The vehicle, which carried an attached camper shell, was driven by Coldwell. Newman and a large German Shepherd dog were seated beside him in the front of the truck. As Coldwell stopped the truck to pay his toll, Agent Jackson looked through a small window in the camper and espied a large container covered with clothes.

Jackson asked that the vehicle be pulled over to the side of the road and subsequently joined the appellants at a spot 40 or 50 yards from the turnpike gate. He asked Newman and Coldwell where they were from and they informed him that they were from Texas. They were questioned as to the ownership of the truck and Newman responded that it belonged to his brother. Cold-well was asked what was within the container in the back and he answered that it held mirrors. Jackson indicated that he wanted to look into the container because it was large enough to contain an alien. Coldwell advised him that a crowbar would be needed to open it and went to the front of the truck to get a lug wrench. He then returned to the rear of the camper shell and opened it. Agent Jackson entered the camper and observed a large deepfreeze, a large wooden box, and an antique trunk. Jackson also testified that he smelled the odor of marijuana when the rear of the camper was opened.

Coldwell was unable to open the wooden container with the lug wrench. When Jackson informed him that he wanted to look inside the trunk also, Coldwell told him that he would have to get the key. He then returned to the cab of the truck, ostensibly to get the key, and departed abruptly with Newman. As they left, the deepfreeze and the trunk slid from the camper onto the highway pavement.

Jackson pursued in his patrol car and came upon the abandoned truck about a quarter of a mile up the road, but he was unable to find either of the appellants. After assistance arrived Jackson drove the truck, which still contained the wooden box, back to the turnpike gate. He subsequently opened all three containers, which were found to hold a total of approximately 741 pounds of marijuana. Newman and Coldwell were later apprehended and charged with the crime of which they now stand convicted. They have challenged these convictions on several grounds, but in the view which we take of this case we deem it unnecessary to consider each contention raised. We hold that the marijuana which provided the basis for these convictions was illegally seized pursuant to an illegal warrantless search conducted without probable cause. Its use as evidence was therefore improper and demands reversal.

The fact that the turnpike gate is located over 700 miles from the Mexican border clearly precludes consideration of this case as one involving a border search. Thus no peculiarly broad powers attach to the border patrol agent and the government’s case here must rise or fall on the existence of probable cause. Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596.

The government contends that numerous factors point to the existence of probable cause. It argues that Agent Jackson’s long years of experience, the Texas license plates, the large containers, and the fact that great numbers of illegal aliens had previously been discovered at this very checkpoint all indicate a sound basis for giving Jackson probable cause to believe that Coldwell and Newman were transporting illegal aliens. The government also relies, as did the court below, on United States v. Saldana, 10 Cir., 453 F.2d 352, as justification for Jackson’s conduct in the case at bar. We find the government’s contentions unpersuasive.

The reliance on Saldana is misplaced, as that ease is clearly distinguishable on its facts. There two agents stopped a pickup truck with three individuals of Mexican descent in the front seat. When asked for immigration papers the passengers separately replied that they had “swum the river.” The court held that at that time there arose probable cause to believe that a crime was being committed. A subsequent search was therefore justified as incident to a valid arrest.

No such circumstances exist here. We do not question the right of a Border Patrol Agent to briefly detain an individual for the purpose of ascertaining his nationality. To this extent Agent Jackson’s initial stopping of the appellants’ vehicle in the case at bar was, in and of itself, not illegal. But we find nothing in the record, to support an independent finding of probable cause to conduct a search of the rear of the camper. Jackson testified that neither appellant possessed any characteristics which led him to believe that they were of Mexican extraction, that he had never before seen the pickup truck, that there had been no prior surveillance of the appellants, and that there was no advance indication or warning that the appellants were approaching the turnpike gate. Nor is there any indication of suspicious behavior on the part of either appellant prior to the initiation of the search.

To uphold a finding of probable cause on the facts presented would effectively authorize the search of each and every vehicle passing through this checkpoint with a border state license plate and sufficient capacity to conceal a human body; the inherent potential for abuse under such a rationale is virtually unlimited. It is significant to note in this respect that Agent Jackson admitted that he was “just indiscriminately stopping vehicles.” This type of activity is not prohibited per se but cannot be escalated to frustrate the fourth amendment.

When Agent Jackson proceeded to the rear of the camper to investigate its contents he initiated an illegal warrantless search. The conclusion is inescapable that the invalidity of this action tainted all subsequent events leading to the ultimate seizure of the marijuana. Everything was triggered by the original illegal intrusion and the contraband evidence was thus inadmissible as the “fruit of the poisoned tree.” Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. Under these circumstances the government’s theory of abandonment is without merit. See Fletcher v. Wainwright, 5 Cir., 399 F.2d 62.

Reversed.

      . This fact has no determinative significance as the odor of marijuana was detected after the search was in progress. The odor of the drug did not trigger the search as in United States v. Bowman, 10 Cir., 487 F.2d 1229.


source: Caselaw Access Project

author: VAN OOSTERHOUT, Senior Circuit Judge.

license: Public Domain

text:
    TRI-STATE MOTOR TRANSIT CO., Appellant, v. UNITED STATES of America, Appellee. TRI-STATE MOTOR TRANSIT CO., Appellee, v. UNITED STATES of America, Appellant.
    Nos. 73-1308, 73-1383.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 14, 1974.
    Decided Jan. 31, 1974.
    Albert Thomson, Kansas City, Mo., for Tri-State Motor Transit Co.
    Paul Anthony White, Asst. U. S. Atty., Kansas City, Mo., for the U. S.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and STEPHENSON, Circuit Judges.
   VAN OOSTERHOUT, Senior Circuit Judge.

The issue presented by this appeal is whether, with respect to shipments made by the Government, Tariff MF-I.C.C. No. 56 allows plaintiff Hughes Transportation, Inc-, (now Tri-State Motor Transit Co.), to charge for transportation on the basis of mileage from the point of origin to destination over the route the freight was actually carried via points of interchange (Richmond, Kentucky and Charlotte, North Carolina) as claimed by plaintiff, rather than on the basis of the short line route between points of origin and destination under the Household Goods Carriers Bureau Mileage Guide No. 8, as contended by the Government.

Plaintiff’s complaint contains eighty-four counts. This ease was tried to Judge Hunter without a jury. All facts were stipulated. Jurisdiction in the trial court is based on 28 U.S.C. § 1346(a)(2). Judge Hunter filed a memorandum opinion, not published, which contains detailed findings of fact, conclusions of law, and the basis of decision. By stipulation it was agreed that certain specified counts be dismissed and that judgment in an agreed amount be entered on certain other specified counts. On the counts remaining in controversy on this appeal, which involve the issue set out at the opening of this opinion, Judge Hunter upheld the Government’s contention that the rate should be computed on the short line mileage basis and dismissed plaintiff’s complaint as to such counts. Plaintiff has taken a timely appeal from such judgment. The Government took a cross-appeal but has filed no brief in support thereof. The Government’s cross-appeal is dismissed.

The decision in this case turns upon the interpretation of Tariff MF-I.C.C. No. 56 which was in full force at all times here material. Pertinent portions of the tariff are set out in the trial court’s opinion. It is undisputed that the plaintiff and its connecting carrier, C. I. Whitten Transfer Co., under their operating authorities, were required to travel via the interchange points mentioned in handling the transportation here involved and that they did so. It is also established that travel through the interchange points resulted in considerably more mileage than a direct route from point of origin to destination.

As a basis for interpreting the tariff, the court quoted extensively from the interpretation guidelines set out by this court in Penn Central Co. v. Mills, Inc., 439 F.2d 1338, 1340-1341 (8th Cir. 1971), and followed such guidelines. The Government in support of its contention that the transportation charge should be based on the short line rate places principal reliance on Item No. 50 of the tariff which reads in pertinent part:

This tariff is governed, except as otherwise provided herein by the following described publications: Mileage Guide No. 8, MF-I.C.C. No. 139 issued by Household Goods Carriers Bureau, Inc., Agent.

Mileage Guide No. 8 provides for computation of transportation charges on the short line route basis.

Plaintiff stresses the words “except as otherwise provided” in Item 50 and contends other sections of the tariff set forth in the trial court’s opinion otherwise provide. The trial court rejected such contention, and adopted the Government’s interpretation of the statute, stating as a basis:

A review of the stipulations and evidence in this cause in light of the principles outlined above, convinces that plaintiff’s contentions are without merit and that there is no clear provision in the Tariff which operates as an exception to Item 50 regarding the applicability of mileage Guide No. 8 to shipments here in issue. Thus, under the terms of Tariff MF-I.C.C. No. 56 the computation of distance for determining the rate applicable to the shipments in issue is pursuant to Mileage Guide No. 8, and under the terms of this Guide the short line route rather than the route through the interchange points is the proper route for purposes of distance commodity rate computation.
No provision of Tariff MF-I.C.C. No. 56 specifically provides how mileage-distance will be computed when a joint shipment moves through an interchange point. However, by reference to Mileage Guide No. 8, Item 50 of the Tariff incorporates the Rules of that Guide including the provision that “Distances between any two points shall be determined by use of the following rules regardless of mileage that may be determined to exist by other methods of compilation and regardless of actual route which carrier may select to perform the transportation service.” This provision is clear in its wording and intent, and in order to create an exception to this provision the Tariff provisions would have to be equally clear. Further Item 60 of the Tariff infers the applicability of Mileage Guide No. 8.
The provisions of the Tariff upon which plaintiff relies to create an exception to the applicability of Mileage Guide No. 8 are at most ambiguous regarding the compuation of distances when shipments move through interchange points. Neither Items 10, 130, or 220(b) considered separately or conjunctively with the other portions of the Tariff clearly provide the method of mileage computation on joint shipments through interchange points.
* * * * *
Mileage Guide No. 8 when incorporated into the provisions of a Tariff creates certainty in the computation of mileage-distance from point of origin to destination. As provided in the Guide, the determination of mileage made pursuant to its Rules is applicable regardless of the Route actually traveled by the carrier. The certainty of this method of distance-mileage computation should only be abolished by a clear and specific exception in the terms of the Tariff. There is no such clear exception regarding interchange points in Tariff MF-I.C.C. No. 56.

No cases have been cited or found interpreting this or similar tariffs. M. I. O’Boyle & Son, Inc. v. United States, 303 F.2d 446, 157 Ct.Cl. 603 (1962), lends some support to the view adopted by the trial court. We agree with the trial court’s interpretation of the tariff and affirm the judgment on the basis of the trial court’s well-reasoned unreported opinion.

The parties have stipulated with respect to the judgment to be entered if the Government prevails on the interpretation issue. Judgment has been entered pursuant to the provisions of such stipulation.

The judgment is affirmed on the plaintiff’s appeal. The Government’s cross-appeal is dismissed.

Costs taxed to plaintiff.

      . The Government on oral argument advised doned. the court that its cross-appeal has been aban-


author: GURFEIN, District Judge.

text:
    Slater WILLIAMS, Plaintiff-Appellant, v. Robert P. FROEHLKE, Secretary of the Army, Defendant-Appellee.
    No. 229, Docket 73-1682.
    United States Court of Appeals, Second Circuit.
    Submitted Dec. 6, 1973.
    Decided Jan. 14, 1974.

      Paul J. Curran, U. S. Atty., S. D. N. Y. (Taggart D. Adams and V. Pamela Davis, Asst. U. S. Attys., of counsel), New York City, for defendant-appellee.
    Covington, Howard, Hagood & Holland, New York City (George Donald Covington and Lawrence S. Cumber-batch, New York City, of counsel), for plaintiff-appellant.
    Before WATERMAN and FEINBERG, Circuit Judges, and GURFEIN, District Judge.

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

      . As a matter of statutory construction, this has been held to embrace military jurisdiction over a member of the armed forces who committed a crime against a German civilian in Germany. Puhl v. United States, 376 F. 2d 194 (10 Cir. 1967).

   GURFEIN, District Judge.

Slater Williams was a soldier serving in the United States Army in Germany. On July 12, 1960, while the country was at peace, Williams, in civilian clothes robbed a German citizen in Germany. He was tried by a general court-martial, and on September 25, 1960, convicted of robbery (10 U.S.C. § 922) , disrespect (10 U.S.C. § 891) and eomnfunieation of a threat (10 U.S.C. § 934). He was sentenced to five years at hard labor and a dishonorable discharge. Appellant served his term and then brought an action in the United States District Court for the Southern District of New York to compel defendant Froehlke, Secretary of the Army, to set aside his conviction and to order the Army Board for Correction of Military Records to grant him an honorable discharge. He based jurisdiction on 28 U.S.C. § 1361 (“in the nature of mandamus”).

Williams contended that under O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1961), the court-martial had no jurisdiction to try him for the offense of robbery against a civilian while he was away from the Army post. He also asserted other grounds not pressed upon this appeal.

The Secretary moved to dismiss the complaint, or for summary judgment, asserting inter alia, that (1) O’Callahan should not be applied retroactively; and (2) that, even if O’Callahan is applied retroactively, there was jurisdiction in the court-martial, because O’Callahan does not apply to courts-martial held outside the territorial limits of the United States.

Judge Lasker, in a carefully considered opinion, granted the motion for summary judgment in favor of the defendant. He held that O’Callahan was retroactive in its application under the decision of this Court in United States ex rel. Flemings v. Chafee, 458 F.2d 544 (2 Cir. 1972), noting that certiorari had been granted sub nom. Warner v. Flemings, 407 U.S. 919, 92 S.Ct. 2461, 32 L.Ed.2d 805 (1972). Judge Lasker could not foresee, of course, that the Supreme Court would reverse this Court in Warner v. Flemings, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed. 2d 873 (1973), also cited as Gosa v. Mayden. He properly concluded that, since he was bound by the decision of this Court to the effect that O’Callahan was, indeed, retroactive, he was required to determine whether O’Callahan was to be applied extraterritorially. Judge Lasker decided that it was not. This appeal follows.

We now face the issues: (1) Did a majority in the Supreme Court hold that O’Callahan was retroactive? (2) Assuming O’Callahan to be retroactive, did the court-martial have a constitutional as well as a statutory jurisdiction to try Williams for the crime of robbery committed against a German civilian in Germany?

The decision of this Court in Flem-ings, supra, was reversed by a vote of 7 to 2. Four justices based the reversal upon the ground that O’Callahan was not to be applied retroactively, while Mr. Justice Stewart and Mr. Justice Douglas concluded, as did Mr. Justice Rehnquist in a separate opinion, that the crime involved in Flemings was “service connected” so as to support proper jurisdiction in the court-martial even under O’Callahan.

In the companion case of Gosa v. Mayden, however, the sole issue was whether O’Callahan was to be applied retroactively, since the Government had conceded in the Court of Appeals “that the offense was not service connected.” 413 U.S. at 665, 93 S.Ct. at 2929. See Gosa v. Mayden, 450 F.2d 753 (5 Cir. 1971).

The Supreme Court, squarely faced with the issue (which it had found unnecessary to decide in Relford v. United States Disciplinary Commandant, 401 U.S. 355, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971)) divided in Gosa v. Mayden, supra, on whether O’Callahan was to be applied retroactively. Four justices, the plurality opinion being written by Mr. Justice Blackmun, held that O’Callahan was not to be applied retroactively. Mr. Justice Marshall wrote a dissenting opinion, concurred in by Mr. Justice Brennan and Mr. Justice Stewart, in which he determined that O’Callahan must be applied retroactively because O’Callahan had decided that there was no constitutional jurisdiction in courts-martial to adjudicate nonservice-connect-ed offenses. Mr. Justice Rehnquist agreed that under controlling precedents O’Callahan would have retroactive effect, but voted to overrule O’Callahan. Mr. Justice Douglas did not reach the merits in Gosa because he believed that the issue was simply whether appellant’s failure to raise the O’Callahan issue in the military courts had made the matter res judicata. Since O’Callahan was not overruled, Mr. Justice Rehnquist must be counted with the dissenters in Gosa as believing that O’Callahan is retroactive. Mr. Justice Douglas’ view on the issue remains unexpressed.

In these circumstances, sitting as an intermediate appellate court, we think that if this case can be decided without a specific ruling on whether O’Callahan is retroactive, we should do so. We affirm on the ground that, even if O’Callahan is retroactive, its reach does not extend to the jurisdiction of courts-martial in peace time to try non-service offenses committed by servicemen against foreign persons in foreign lands.

The Uniform Code of Military Justice provides in Article 122 (10 U.S.C. § 922) that “[a]ny person subject to this chapter who . . . takes anything of value from [a] person . against his will, by means of force or violence ... is guilty of robbery . .” Williams was a person “subject to this chapter.” 10 U.S.C. § 802. And “[t]his chapter applies in all places.” 10 U.S.C. § 805.

There is no doubt of the congressional intention to subject persons by virtue of their status as servicemen to military jurisdiction. Nor had there been serious question that military jurisdiction based on status was within the constitutional power of the Congress under Art. I, § 8, cl. 14 of the Constitution, “To make Rules for the Government and Regulation of the land and naval Forces.” Kinsella v. Singleton, 361 U.S. 234, 240-241, 243, 80 S.Ct. 297, 300, 4 L.Ed.2d 268 (1960), Reid v. Covert, 354 U.S. 1, 22-23, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957).

When the problem of jurisdiction over a nonservice-connected offense by a person in the armed services was presented in O’Callahan, the majority decision on “jurisdiction” could have been determined either on the basis of a lack of constitutional jurisdiction of the court-martial to adjudicate, — a true jurisdictional lack — or on the basis of a statutory interpretation that subjected the military competence to its narrowest terms consistent with Fifth and Sixth Amendment guarantees. If the nub of the decision were the former, its implication would be that the constitutional power granted to establish courts-martial did not extend to offenses which were not service connected. If the latter, “jurisdiction” would not be a matter of the competence of the tribunal to adjudicate, but rather, as Mr. Justice Douglas has told us recently, “jurisdiction” may mean a requirement that constitutional guarantees exist, even though the competence of the tribunal is otherwise assumed. See Gosa v. Mayden, supra, 413 U.S. at 689, 93 S.Ct. at 2941, and note 5. Since he was the author of O’Callahan, Mr. Justice Douglas’ gloss upon his own opinion implies that the plurality in that case was not thinking of lack of jurisdiction to try civilian offenses in the strict sense of a lack of tribunal competence, but rather as a balancing of individual rights against a conceded constitutional competence of the tribunal. His comment in Gosa that “petitioner was not tried by a kangaroo court or by eager vigilantes but by military authorities within the framework established by Congress in the Uniform Code of Military Justice” 413 U.S. at 689, 93 S.Ct. at 2941, supports this view.

Mr. Justice Blackmun agreed that the question of O’Callahan had been “whether . . the exercise of jurisdiction by a military tribunal, pursuant to an act of Congress, over his nonservice-con-nected offense was appropriate when balanced against the important guarantees of the Fifth and Sixth Amendments.” 413 U.S. at 677, 93 S.Ct. at 2935. He rejected the notion that O’Callahan had held “that a military tribunal was and always had been without authority to exercise jurisdiction over a nonserviee-connected offense.” Id. Mr. Justice Marshall’s opinion, on the other hand, said that O’Callahan “can only be understood as a decision dealing with the constitutional limits of the military’s adjudicatory power over offenses committed by servicemen.” 413 U.S. at 694, 93 S.Ct. at 2943.

With Mr. Justice Rehnquist wishing to overrule O’Callahan entirely, there seems to be a clear majority which believes that O’Callahan does not hold that there is an absolute lack of jurisdiction in military tribunals to try servicemen for nonservice-connected offenses.

We in turn, then, adapt the technique of O’Callahan to determine the issue here presented. Is there an imbalance between Art. I, § 8, cl. 14 jurisdiction over soldiers who commit civilian offenses in peace time and the requirements of Article III and the Fifth and Sixth Amendments?

We may assume first that the cases prohibiting the trial of civilians by military tribunals, cf. Reid v. Covert, supra, 354 U.S. at 81, 77 S.Ct. 1222, are not controlling, for appellant was not a civilian. We may also assume that Williams, as a soldier, came under the Art. I § 8 cl. 14 power of the Congress to regulate the land and naval forces. Reid v. Covert, supra, 354 U.S. at 20, 77 S.Ct. 1222. Nor do we doubt the power of the Congress to provide for the regulation of the land and naval forces when they are serving in foreign countries. Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 139-140, 3 L.Ed. 287 (1812); Coleman v. Tennessee, 97 U.S. 509, 515, 24 L.Ed. 1118 (1878).

In United States ex rel. Toth v. Quarles, 350 U.S. 11, 23, 76 S.Ct. 1, 8 L. Ed. 8 (1955), the Court did instruct us, however, that “[determining the scope of the constitutional power of Congress to authorize trial by court-martial presents another instance calling for limitation to ‘the least possible power adequate to the end proposed.’ Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 230-231 [5 L.Ed. 242] (1821).”

Recognizing the jurisdiction of our military courts in Germany to try military personnel for crimes committed there, the question is whether the power “would be adequate to the end proposed” if servicemen were immune from court-martial for civilian offenses committed abroad in peace time.

The conflict between the individual right to be indicted by a Grand Jury (Fifth Amendment) and trial by jury (Sixth Amendment), on the one hand, against the court-martial jurisdiction, on the other hand, depends in the first instance on whether the individual rights sought to be preserved are available to the accused. In the O’Callahan case, the crime was committed in Hawaii, then a territory of the United States, where the right of jury trial and indictment by Grand Jury were available. Here the crime of robbery was committed in Germany. While constitutional rights may follow the soldier abroad, the Constitution itself does not provide him with an Article III federal court in the vicinage where he may be tried. Nor is robbery in a German city a federal crime presently cognizable by Article III courts, See United States v. Bowman, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149 (1922).

Even though pursuant to the Constitution in Art. Ill, § 2, el. 3, the Congress can provide that where a crime is committed in no state, the defendant may be tried in the district to which he is first brought (18 U.S.C. § 3238) (Reid v. Covert, supra, 354 U.S. at 8, 77 S.Ct. 1222), there must still be federal criminal jurisdiction for a trial properly to occur in an Article III court. While Germany has agreed to consider waiving jurisdiction over the soldier where the crimes are in concurrent jurisdiction, NATO Agreement on Status of Forces, Art. VII(3); 4 U.S. Treaty Series 1792, 1800 (1953), it could not, of course, create a system of American courts for his trial. Under the treaty, the United States courts were assumed to be military courts. The Congress has neither provided for Article III Courts nor even for legislative courts to function in Germany; nor made the crime of robbery in Germany a federal crime, except as provided in the Code of Military Justice (10 U.S.C. § 922).

The Supreme Court in Relford, supra, noted that O’Callahan had involved an offense committed “within our territorial limits [and] not in the occupied zone of a foreign country.” 401 U.S. at 365, 91 S.Ct. at 655. We think that the emphasis on individual rights in O’Callahan implied their application only within our territorial limits, and that it is not of consequence that Germany does not happen to be an “occupied zone of a foreign country,” Relford, supra, but a foreign country not under occupation.

Toth v. Quarles, supra, concerned a civilian who had been discharged from the Army, and held that, as a civilian, he could not be tried by the military for a murder allegedly committed in Korea while he was in the service. The question involved did not relate to the fact that the alleged crime had been committed in a foreign country. The holding was that, having regained civilian status, he was not constitutionally amenable to military jurisdiction under Congressional power to regulate the armed forces. We think the constitutional defect was of status, not of situs. Toth did not concern itself with territorial jurisdiction.

Since O’Callahan, the Fourth and Seventh Circuit Courts of Appeals, the Court of Claims and the Court of Military Appeals have each concluded by independent reasoning that there is no constitutional prohibition against the power of Congress to provide in a Code of Military Justice that general courts-martial shall try servicemen for offenses committed in foreign countries which are, concededly, not service connected. Wimberly v. Laird, 472 F.2d 923 (7 Cir. 1973); Bell v. Clark, 437 F.2d 200 (4 Cir. 1971); Gallagher v. United States, 423 F.2d 1371, 191 Ct.Cl. 546 (1970), cert, denied, 400 U.S. 849, 91 S.Ct. 58, 27 L.Ed.2d 86 (1970); United States v. Keaton, 19 U.S.C.M.A. 64 (1969).

We think the Congress has the constitutional power under Art. I § 8 cl. 14 “to make Rules for the Government and Regulation of the land and naval Forces,” that such rules may provide for courts-martial and that there is no territorial limitation on where they may sit.

We are left then with the question whether the limitations in the Fifth and Sixth Amendments must be applied, nevertheless, to limit that jurisdiction.

The Court of Appeals for the Seventh Circuit in Wimberly v. Laird, supra, has held that because the soldier was in Germany as the result of his status as a member of the Army, there was a sufficient connection between his offense and his service status to characterize his crime as “arising within the land or naval forces” for purposes of the exception in the Fifth Amendment. We agree. The United States Army could hardly disinterest itself in crimes of violence committed against civilians by military personnel without impairing its mission. Gallagher v. United States, supra, 423 F.2d at 1373.

And so far as the Sixth Amendment is concerned, there can literally be no “trial by an impartial jury of the State and district wherein the crime shall have been committed,” for no federal courts exist in Germany, and trials in the United States would not, in any event, have juries “of the State and district wherein the crime was committed.”

The choice is, practically, between trial in a German civilian court and trial by an American court-martial. The witnesses are in Germany. To require their transportation to the United States is, in any event, beyond our power to command, for they are not subject to our process. It was undoubtedly thought a boon to the accused to permit his trial in a court-martial rather than in a foreign court where the soldier might be subjected to varying degrees of xenophobia. But assuming that the soldier feels, on the contrary, that he may be better off in a foreign court than in an Article I court-martial, there is no constitutional guarantee that says he has a right to be tried in the foreign court. Pursuant to the treaty power, the United States has given Germany priority in the trial of offenses committed within its territory, and reserved to itself, if there is a waiver, trial in the military tribunal, which is the only United States court available. We think there was no mandate on the Congress to create Article III courts to be the repositories of the concurrent jurisdiction with Germany under the treaty, even if the obvious international obstacles to their creation were overcome.

Affirmed.

      . Article 122 of the Uniform Code of Mill tary Justice.

      . Jurisdiction is not challenged on this appeal. We note that in Warner v. Flemings, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973), the Supreme Court assumed there was jurisdiction, for it decided the case on the merits.

      . The Hawaii Constitution, Art. 1, §§ 8, 11, adopted in 1950, required indictment by a Grand Jury and trial by jury.

      . The Agreement confers on each respective government exclusive jurisdiction over crimes which are cognizable under that government’s law, but which are not cognizable under the law of the other government. Concurrent jurisdiction between the sending and receiving states is recognized over all other crimes with the primary jurisdiction allocated according to the nature of the crime. In the case of robbery, Germany had primary jurisdiction which it waived. The waiver provision is valid. See Wilson v. Girard, 354 U.S. 524, 77 S.Ct. 1409, 1 L.Ed. 1544 (1957).

      . Although the nation is not in a “time of war or public danger,” that limit to the exception of the Fifth Amendment from courts-martial applies only to the militia, and not to “the land or naval forces.” Johnson v. Sayre, 158 U.S. 109, 115, 15 S.Ct. 773, 39 L.Ed. 914 (1895) ; see also Ex parte Mason, 105 U.S. 696, 701, 26 L.Ed. 1213 (1881).

      . The history of the statutory jurisdiction of courts-martial to try civil offenses committed by the military is recited in O’Callahm, supra, 395 U.S. at 271-272, 89 S.Ct. 1683.

      . Cf. Wilson v. Girard, supra, where the Supreme Court held that there was no constitutional right not to be tried in a foreign court. One cannot help wonder whether appellant at the time of his trial would have chosen a German court rather than an American military court. For a discussion of the acceptability of foreign civil courts as alternative tribunals, see Note, Military Law —Military Jurisdiction over Crimes Committed by Military Personnel Outside the United States, 68 Mich.L.Rev. 1016, 1039 (1970).


author: LUMBARD, Circuit Judge: MANSFIELD, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. James M. De ANGELIS, Appellant.
    No. 444, Docket 73-2314.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 21, 1973.
    Decided Jan. 15, 1974.
    Certiorari Denied April 22, 1974.
    See 94 S.Ct. 1970.

      David A. Depetris, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. New York, and Paul B. Bergman, Asst. U. S. Atty., on the brief), for appellee.
    Henry J. Boitel, New York City (Frank Santo, New York City, on the brief), for appellant.
    Before LUMBARD, MANSFIELD and MULLIGAN, Circuit Judges.
   LUMBARD, Circuit Judge:

James M. De Angelis appeals from a judgment of conviction in the district court for the Eastern District (Judd, J.), entered July 27, 1978, after a jury convicted him on a four count indictment charging possession of cocaine with intent to distribute it and also the subsequent. distribution of the same, each on two separate occasions, in violation of 21 USC sec. 841(a)(1) and 18 USC sec. 2. The appellant was sentenced to concurrent terms of imprisonment of five years on each of the four counts, plus a parole term of seven years.

On June 7, 1973, the first day of the trial, a co-defendant, Joseph Matranga, pled guilty to all four counts of the indictment and thereafter testified at trial as a witness for the defense. Matranga was sentenced at the same time as the appellant to concurrent terms of imprisonment of three years on each count, plus a parole term of five years.

In challenging his conviction, the appellant contends: (1) that the government prosecutor made an unwarranted and prejudicial argument to the jury concerning Matranga’s credibility; (2) that the trial court abused its discretion by allowing the principal government witness to remain in the courtroom during the trial; (3) that the court also abused its discretion in allowing the government to cross-examine the appellant concerning a prior conviction; (4) that the court’s charge to the jury was prejudicial to the appellant; and (5) that it was error for the trial court to have denied the appellant’s request for a hearing to inquire into the government’s failure to produce a known informant.

We find the appellant’s contentions without merit and accordingly affirm the conviction.

I.

The government’s case at trial consisted primarily of the testimony of five agents of the Bureau of Narcotics. The agents’ testimony was that on two occasions, April 13, 1972, and May 12, 1972, the appellant and Matranga participated in transactions involving the sale of cocaine to Special Agent Jordison, an undercover agent of the Bureau and the government’s principal witness at trial.

Jordison testified that on April 12, 1972, he was introduced to Matranga at the latter’s apartment in Brooklyn by an informant, Marilyn Masick. Jordison expressed his interest on that occasion in purchasing cocaine. The sale of an ounce of cocaine for the following day was later arranged between Matranga and Jordison by telephone, the price to be 3800. The sale was completed the next afternoon, as agreed upon. According to Jordison, the appellant brought the cocaine to Matranga’s apartment shortly after Jordison’s arrival, transferred it to Matranga, who sold it in turn to Jordison. The appellant left upon the completion of the transaction, remarking that all was “cool” (i. e. no police undercover activity), that the quality of the merchandise was “good”, and that he hoped more business could be done with Jordison in the future. The appellant’s automobile and his arrival and departure at Matranga’s apartment building were observed and photographed by a surveillance team of narcotics agents.

Jordison kept in touch with Matranga over the ensuing weeks, expressing his continued interest in cocaine. The surveillance of Matranga’s apartment building was also maintained. On May 10, 1972, the appellant was again observed and photographed entering and leaving the building. He also drove the same car as in April. The same day Jordison arranged with Matranga by telephone a larger purchase of cocaine, tentatively to take place on the 11th.

On the evening of the 11th, the appellant was again observed at Matranga's building, but no photographs were taken since it was after dark. Jordison also went to Matranga’s apartment, where Matranga showed him an eighth of a kilogram of cocaine, and gave him a sample (later tested to be 60.5% pure). The price was to be $2600. Jordison delayed the purchase until the following day, and was told by Matranga that he would be provided an eighth of a kilogram of like quality. Jordison did not encounter the appellant at Matranga’s apartment on the 11th.

On May 12th Jordison went again to Matranga’s apartment. Once again the appellant brought the cocaine after Jord-ison’s arrival. He transferred it to Matranga, who sold it to Jordison, after which Matranga gave a large although unspecified part of the purchase money to the appellant. Again the appellant’s arrival and departure in the same car were observed by the surveillance team. The agents also trailed the appellant after he left and photographed him and the car when he stopped at a car wash. The eighth of a kilogram was later tested to be 47.3% pure.

Matranga was subsequently arrested on November 11, 1972, and the appellant on December 11, 1972. The government’s reasons for the delay in the arrests were explained to be the hope to unveil further “connections” through Matranga, who had in the meantime changed apartments. As to the appellant, the agents knew him only as “Jimmy” and it was not until his car was later discovered that he was traced to his mother’s home in Brooklyn.

The principal witnesses for the defense were the appellant and Matranga. In regard to the April 13th transaction, they testified that the appellant had come to Matranga’s apartment in search of his girlfriend, whom he claimed he often found there. De Angelis denied any use of drugs or any trafficking in them, and specifically denied participation in any sale of cocaine on the 13th. Matranga’s testimony supported this, as did that of Zohira Torres, who was one of two women who had been present in Matranga’s apartment at the time.

In regard to the May 12th transaction, De Angelis testified that he was not in Brooklyn at the critical time but was on the way to eastern Long Island in the company of two friends, Art Dor-an and Anthony Palumbo, both of whom also testified in support of this alibi. Matranga also claimed, despite the disparity in purity percentage, that the one-eighth kilogram of cocaine purchased by Jordison on the 12th was the same that he had shown him the previous evening.

Matranga also testified that he had an alternate source of the cocaine sold to Jordison. The source was alleged to be two men, one also named “Jimmy” and the other called “Carlos”, with whom he occasionally did business at a bar in Coney Island. Matranga stated that this trafficking on his part was almost entirely to obtain drugs to relieve his sciatic condition.

The appellant also placed in evidence the surveillance photographs which had been taken of him in April and May and which had been turned over to the defense prior to trial. Since no photograph had been taken of the appellant at Matranga’s building on May 12th, these photographs presented a scenario consistent with the defense version of the events.

The jury ultimately rejected the de- • fense and found De Angelis guilty on all counts.

II.

A — The Prosecutor’s Summation concerning the Coercion of Matranga

During the cross-examination of Ma-tranga, the prosecutor established that Matranga had at one point subsequent to his arrest agreed to cooperate with narcotics agents in leading them to further “connections” in the drug trade, but that he had later backed out of the agreement because his source had threatened him and his family. On redirect examination, Matranga said that he had been threatened not by “Jimmy” De Angelis but by his alleged source in Coney Island, the “Jimmy” of “Jimmy” and “Carlos”.

In summation, the prosecutor reviewed this evidence as follows:

And then ladies and gentlemen, Agent Jordison gets a call and Matranga says he can’t cooperate because he has been threatened. Now ladies and gentlemen, it is true he was threatened and ladies and gentlemen it is true he was threatened by his source and ladies and gentlemen it is true he was threatened by his source Jimmy, but now he comes in here and testifies that it was a different Jimmy. Ask yourselves why would a man who has plead [sic] guilty to the whole thing, why would he do it? Why? Why would he come in and testify for this man? Ladies and gentlemen he was threatened by this man, James De An-gelis. . . . Matranga was threatened, threatened by this man because this man was afraid Matranga would give him up.

Despite the fact that he made no objection to this language, or to the prosecutor’s questions on cross-examination, the appellant now claims that these remarks were prejudicial to him in that the prosecutor’s credibility was thereby placed in conflict with Matranga’s before the jury. In support of this contention, the appellant relies on United States v. Puco, 436 F.2d 761 (2nd Cir., 1971), and United States v. Block, 88 F.2d 618 (2nd Cir., 1937). We do not find these cases in point.

In both Puco and Block, through the use of detailed leading questions on cross-examination, the prosecutor was able to place before the jury pretrial incriminating statements of the witness which were not in evidence and which the witness’s own testimony on the stand flatly contradicted. Moreover, in each of those cases the witness, unlike Matranga, had denied his complicity in the alleged crime. Also in Puco it was to the trial prosecutor that the witness had made the prior inconsistent statement which the prosecutor had then spread before the jury.

Here Matranga had admitted his guilt. He admitted that he and his family had been threatened. And he admitted that the threat came from his source “Jimmy”. The prosecutor’s summation did no more than recapitulate the witness’s own testimony and argue why it was not to be believed. We do not think that his further urging the jury to draw the inference that the source known as “Jimmy” and the appellant were one and the same was improper. It is the accepted and proper purpose of summation to make such arguments regarding the purpose and credibility of any witness so long as there is sufficient support therefor in the record before the jury. As we find such support here, we conclude that the summation was well within permissible limits.

B — Presence in the Courtroom of Agent Jordison

Agent Jordison was the government’s first witness. Thereafter he was permitted to remain at the counsel table over defense objection. The grounds for objection were that the defense intended to elicit contradictory testimony from the other agents to follow on the stand (all members of the surveillance team at Matranga’s building) and that Agent Jordison’s presence would inhibit such testimony. The appellant relies on the géneral rule of the sequestration of witnesses, and while he concedes that the matter is one of discretion for the trial court, United States v. Pellegrino, 470 F.2d 1205 (2nd Cir., 1972), cert, denied, 411 U.S. 918, 93 S.Ct. 1556, 36 L.Ed.2d 310 (1973), he claims there was an abuse of discretion here because of the critical nature of Jordison’s testimony.

In our opinion, there was no abuse of discretion on the part of the trial court. Jordison was the first witness called. There is no showing that his remaining in the courtroom resulted in any prejudice to the appellant. Here there was far less possibility of prejudice than was present in Pellegrino, where the agent whose presence was objected to was the last witness for the prosecution. Even so, we held that the court’s ruling in Pellegrino was not an abuse of discretion. We similarly hold that on the facts of this case there was no abuse of discretion here.

C — De Angelis’s Prior Conviction

Prior to placing De Angelis on the stand, his counsel requested a ruling prohibiting the government from impeaching his credibility by reference to a 1966 New Jersey conviction for transporting and possessing some 2800 cartons of untaxed cigarettes, for which he had been fined $1000. The trial court denied the request. As a consequence the defense was constrained to elicit a summary of the prior conviction from the appellant at the beginning of his testimony. This was further referred to by the prosecution in cross-examination.

The appellant now claims that the court’s ruling was an abuse of discretion and prejudicial to him. However, a trial court is required to exclude use of a prior conviction for impeachment only if evidence of such a conviction “negates credibility only slightly but creates a substantial chance of unfair prejudice,” United States v. Palumbo, 401 F.2d 270, 273 (2nd Cir., 1968), cert, denied, 394 U.S. 947, 89 S.Ct. 1281, 22 L.Ed.2d 480 (1969). Otherwise the trial court has wide discretion to permit such impeachment testimony, particularly in instances when a prior conviction has involved a crime relating to honesty or integrity. United States v. DiLorenzo, 429 F.2d 216, 220 (2nd Cir., 1970), cert, denied, 402 U.S. 950, 91 S.Ct. 1609, 29 L.Ed. 120 (1971); United States v. Palumbo, supra; Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967).

Here the appellant’s prior conviction was neither remote in time from the present offense nor unrelated to his veracity. See United States v. Puco, 453 F.2d 539 (2nd Cir., 1971). Nor was it so similar to the offense charged that the jury was likely to slip into the belief that the crime alleged was merely a repetition of one previously proven. While some prejudicial effect is bound to result from any testimony regarding a witness’s prior conviction, that effect here did not so outweigh the probative value of the testimony as to require its exclusion. The offense was relevant and proper for the jury to consider in evaluating the appellant’s credibility. Consequently, to permit the testimony was not an abuse of discretion. United States v. Palumbo, supra.

D — The Trial Court’s Charge to the Jury

The appellant contends that the trial court’s charge to the jury, through its selection of examples from the testimony to illustrate the nature of the evidence, through some inaccuracies in recapitulation, and through inadvertent bias towards the prosecution, improperly enhanced the government’s case. We disagree.

We have reviewed the court’s charge “in the context of the whole trial record, particularly the evidence and the arguments of the parties”, United States v. Tourine, 428 F.2d 865, 869 (2nd Cir., 1970), and have found it fair and thorough. What factual errors there were were minor and not prejudicial. The only possibly improper comment by the court, that “it would have been a simpler case if the defendant and Mr. Matranga had been arrested immediately after the sale on April 13 or the sale on May 12,” which might have seemed to intimate that the court disbelieved the defense version of how these sales were made, was carefully corrected by the court:

Ladies and gentlemen of the jury, there may have been one misleading statement that I made. I said the case would have been simpler if the defendants were arrested immediately after the sales on April 13th or May 12th. I didn’t mean I am telling you that there was a sale by this defendant at that time. I was simply pointing out the fact that you have to decide the facts on the evidence before you and you can consider whether the Government was delinquent in not making an arrest at that time or whether there was an excuse for the delay. . . . [My] comments are not intended to indicate any opinion on my part as to guilt or innocence.

We find no prejudicial error- in the charge as corrected.

E — The Missing Informant

Lastly the appellant contends that the failure of the government to make the informant Marilyn Masick available to the defense was a denial of due process requiring at minimum a hearing below on the reasons for her unavailability.

When first mehtion of the informant arose during the cross-examination of Agent Jordison, defense counsel advised the court that he could probably produce the informant. At a later point defense counsel asked Jordison if he could “produce Marilyn if directed by the Court,” to which Jordison replied, “I am not sure.” But no request for such a direction was made to the court at that time. Later still, in a colloquy at the bench, defense counsel stated that he “would ask to have her produced-.” However, when it was clear that defense counsel had as much information available concerning Miss Masiek’s whereabouts as did the government, the matter of her production at trial was pursued no further, apart from a request by defense counsel for a general charge to the jury on the unavailability of witnesses, which the court granted.

Thus no formal request for a hearing was made at trial, nor any request for an adjournment to provide time to locate Miss Masick, nor any request for the government’s help in tracing her. Nor was any showing made of how her possible testimony would have been useful to the appellant. Furthermore, in spite of the court’s suggestion that he do so, appellant’s counsel did not call a witness available to him, John Kroll, who the appellant claimed had information regarding Miss Masick’s unavailability.

We find there was no denial of due process under these circumstances and that there is no reason to remand the case for a hearing. The informant, contrary to the appellant’s claim, was not “an intricate part” of the transactions in question. She was at most a “mere introducer” and never participated in the sales themselves. United States v. Russ, 362 F.2d 843, 845 (2nd Cir.), cert, denied, 385 U.S. 923, 87 S.Ct. 236, 17 L.Ed.2d 146 (1966). As such her production at trial was not required, nor any hearing into her unavailability, unless the appellant could make a showing of prejudice stemming from her absence. And no such showing has been made out here. Indeed, the only indication of the informant’s possible testimony, an unsigned statement made to narcotics agents, suggests that her testimony would have corroborated the government’s case.

Furthermore, this was not a case of an unknown informant. The defense knew her identity, but made no showing that any effort had been made to locate her. Under these circumstances, there was no error in the trial court’s rulings. United States v. Russ, supra; United States v. Cooke, 339 F.2d 183 (2nd Cir., 1964); see Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

Affirmed.

MANSFIELD, Circuit Judge

(concurring in an Opinion in which Circuit Judges LUMBARD and MULLIGAN concur):

I concur completely in every portion of Judge Lumbard’s thorough and carefully considered opinion. I would like to add a few words regarding appellant’s attack upon the propriety of the prosecutor’s summation.

Recently we have had occasion to take prosecutors to task for improperly asserting their personal knowledge of facts or their personal belief as to the credibility of witnesses. United States v. White, 486 F.2d 204, 205-207 (2d Cir. 1973); United States v. Bivona, 487 F.2d 443, 445-448 (2d Cir. 1973) ; United States v. Santana, 485 F.2d 365, 370-371 (2d Cir. 1973); United States v. Drummond, 481 F.2d 62 (2d Cir. 1973); United States v. LaSorsa, 480 F.2d 522, 526 (2d Cir. 1973), cert, denied 414 U.S. 855, 94 S.Ct. 157, 38 L.Ed.2d 105 (1973); United States v. Fernandez, 480 F.2d 726, 741 n.23 (2d Cir. 1973); United States v. Miller, 478 F.2d 1315, 1317 (2d Cir. 1973), cert, denied, 414 U.S. 851, 94 S.Ct. 144, 38 L.Ed.2d 100 (1973); United States v. Pfingst, 477 F.2d 177 (2d Cir. 1973), cert, denied, 412 U.S. 941, 93 S.Ct. 2779, 37 L.Ed.2d 400 (1973). In at least three of these cases the prosecutor’s intemperate remarks were provoked by or responsive to improper statements made by defense counsel in his summation. See Santana, LaSorsa and Bivona, supra. Yet aside from deploring such defense tactics, we have had little or nothing to say on the subject. I think that it is high time that steps be taken to insure that defense counsel will observe their duties under the ABA Code of Professional Responsibility (1971), DR 7-106(C)(3), (4), and refrain from conduct that not only tends to goad the prosecutor into possible improprieties but to undermine respect for the administration of justice.

In the present case the prosecutor’s summation was clearly within permissible bounds. However, when we look back to the defense counsel’s summation which immediately preceded it we find that appellant’s counsel repeatedly voieed his personal knowledge of facts and his personal opinion of the credibility of witnesses, in total disregard of the Code. For instance, referring to an attorney-client conference which he apparently had had with appellant before trial he stated:

“However, James De Angelis didn’t come to me and say ‘Let them prove me guilty. I didn’t do it.’ He said ‘No, no. I want to tell the truth. I want to _ take the stand.’; After I heard the story, I went into the facts of the case. ... I think James De Angelis was an honest witness. . . .” [420]

He continued with several similar statements, including the following:

“On cross-examination we found out it was there on the 11th and the camouflage about pharmaceutical — well, it threw me for a loop until I found out it was just that it was 100 percent purity. I thought they were talking about different cocaine. [416]; I am not even a federal agent and I know all those things. . [418];
* -X- -X- * * -X-
“Only the witnesses you heard for the government, as far as this case goes — I am not interested in the surveillance agents. I have reports. I have a table of reports. [420]
•x- * * -x- * *
“After I heard the story I went into the facts of the case and by the way, the only time I knew about this girl Angel was Thursday or Friday because of one of the reports given to me by Mr. De Petris which, by the way, he is required to do and that report gave a description of this girl. It was only in that way that we located this girl and you heard her testimony. You believe her. [423]
•X- -X- -X- * * -X
“Again it is a normal procedure for an undercover agent to wear a kel set [microphone and recorder], I don’t care what the government says, use your common sense—
“The Court: Stick to the evidence, Mr. Light.
“Mr. Light: There was some testimony there was no kel set to record the conversations. . . . You’re not a witness to it. So, get a recording of what was said and then try to overcome that when your voice is on it. Well, we have nothing like that on April 13. ., . . They want you to believe this and don’t forget we had not [sic] burden of proving ourselves innocent and I think we did a pretty good job. . . . [428-29]
“ . . . Only when I questioned the agent and I was given the report by Mr. DePetris did I found out about May 11 and that is when you found out about May 11. We never knew that the eighth of a kilo was there on May 11.” [430] (Emphasis added)

It is ironic that defense counsel, upon such a record, should have the temerity to attack the prosecutor’s summation. But more important from the standpoint of administration of justice is the fact that such conduct on the part of defense counsel seems to be tolerated as the accepted norm in the defense of criminal cases.

Recently the Chief Justice of the United States and the Chief Judge of this Court have commented upon the necessity for improving the quality of the trial bar, particularly in the defense of criminal cases. See N.Y. Law Journal, Nov. 27, 1973, p. 1, col. 3 (John F. Sonnett Lecture by Chief Justice Warren E. Burger at Fordham Law School); N.Y. Law Journal, Dec. 7, 1973, p. 5, cols. 1-6 (Address by Chief Judge Irving R. Kaufman at Annual Dinner of N.Y. County Lawyers Assn.). An important starting point is to curb improprieties on the part of trial counsel of the type revealed here, which seem to be on the increase. This, of course, will require steps to be taken toward more vigorous enforcement of the Code of Professional Responsibility, more active supervision by trial judges and greater education of the trial bar with respect to its ethical responsibilities.

      . During the cross-examination of Matranga by the prosecutor, defense counsel did request the court to caution the jury that the questions posed by counsel were not part of the evidence. This request was promptly granted.

      . '“DR 7-106(0) In appearing in his professional capacity before a tribunal, a lawyer shall not:

        'Jfi s{s Sji sfc
      “.(3) Assert his personal knowledge of the facts in issue, except when testifying as a witness.
      “(4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.”

      . Appellant is represented by a different counsel on this appeal.


author: HASTIE, Circuit Judge.

text:
    Emilio DeANGELO v. Howard YEAGER, Principal Keeper of the New Jersey State Prison, State of New Jersey and Howard Yeager, Appellants in No. 72-1584. Anthony J. MARTINO v. Howard YEAGER, Principal Keeper of the New Jersey State Prison, State of New Jersey and Howard Yeager, Appellants in No. 72-1585. Rosemarie STANGO v. John RUSH, Principal Keeper of the Essex County Penitentiary, State of New Jersey and John Rush, Appellants in No. 72-1586.
    Nos. 72-1584 to 72-1586.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 12, 1973.
    Decided May 21, 1973.

      Joseph P. Lordi, Michael H. Stieber, Newark, N. J., for appellants.
    Robert R. Blasi, Elmer J. Herrmann, Jr., Herrmann & Blasi, Newark, N. J., for appellees.
    Before BIGGS, HASTIE and JAMES HUNTER, III, Circuit Judges.
   OPINION OF THE COURT

HASTIE, Circuit Judge.

The appellees are state prisoners who have been incarcerated pursuant to convictions of violations of the New Jersey gambling laws. The district court granted them writs of habeas corpus on the ground that their convictions had been obtained through evidence, gambling paraphernalia, that had been seized in execution of search warrants issued without probable cause.

These appeals by the appropriate state officers present the familiar problem of what, in a constitutional view, constitutes probable cause for the issuance of a search warrant when a magistrate acts in reliance on an affidavit of a law enforcement officer that in turn is based in major part upon an informant’s tip.

Because the affidavits in these cases do not differ significantly in content, only one of them need be discussed. The text of the affidavit in DeAngelo’s case is as follows:

“ . . . through information received from a reliable informant who has given information on previous occasions which resulted in arrests and convictions and who has and must remain anonymous states that telephone number 684-4970 is being used for Lottery Bets and Bookmaking Bets all day from Monday to Saturday by a white male, Emilio DeAngelo of 464 No. 11 St. to which the telephone number is connected to. This address is a one family dwelling, Red Brick house.
“The undersigned made observations and investigations on Monday, February 24, 1969 from 10:00 A.M. to 12:00 noon and again on Tuesday, February 25, 1969, from 11:00 A.M. to 1:00 P.M. and again from 2:00 P.M. to 3:30 P.M. and during these observations the undersigned did observe several white males and females walk to the said location, stay for a short period of time and then leave. Also this telephone number has been called several times and most of the time the telephone was busy, and when it was not busy a man would answer after a short ring and just say hello. The telephone number was again redialed and again the telephone was busy for a few minutes and after a short period upon redialing a man would again answer after a short ring, just saying hello.
“I have just and reasonable cause to suspect and believe and do suspect and believe that the following goods to wit: and property namely papers, records, memoranda, slips, paraphernalia used in connection with the crime of lottery 2A:12-3 and bookmaking 2A:-112-3 are concealed on the premises of 464 No. 11th St., a one family brick dwelling and persons therein as well as on the person of Emilio DeAngelo, White Male, height about 5'7" to 5'10" weight about 180 to 195 lbs.”

The principles applicable to the determination of probable cause in these cases are set out in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), eases that have been discussed at length in our recent decision in United States v. McNally, 3d Cir. 1973, 473 F.2d 934. Therefore, this opinion will merely state without elaboration the impact of the rulings of Aguilar and Spinelli upon the present affidavits.

It is the rule of Aguilar that “[ajlthough an affidavit [submitted to support the issuance of a search warrant] may be based on hearsay information . . . the magistrate must be informed on some of the underlying circumstances from which the informant concluded that” evidence of crime was to be found in the place to be searched. 378 U.S. at 114, 84 S.Ct. at 1514. The affidavit we now are considering, like the Aguilar affidavit, gives no information as to the factual basis of the informant’s conclusion that a stated telephone number at a stated address “is being used for lottery bets and bookmaking bets”. Here, as in Aguilar, the magistrate had no basis for exercising his required independent judgment whether the informant’s conclusion was more than surmise or repetition of rumor.

Recognizing this deficiency, the appellant argues that the informant’s statement is adequately corroborated and substantiated, as was done and approved in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), by the affiant officer’s own observations which he set out in his affidavit. Here the officer stated that during several afternoons he personally observed “white males and females walk to the said location, stay for a short period of time and then leave”. Moreover, on several occasions telephone calls to the place in question resulted in busy signals. At other times the person who answered merely said “hello”.

If the informant himself had offered these facts as the basis of his conclusion that bets were being taken on the premises, in so stating he would have disclosed that he was merely speculating as to the suspected activity. For there was nothing in the observed occurrences that was suggestive of bet taking or any other wrongdoing. As the Supreme Court ruled in Spinelli, an informer’s tip may not be used to give “suspicious color” to observed “innocent-seeming conduct” and then the observed conduct used to substantiate the tip. 393 U.S. at 415, 89 S.Ct. 584.

Finally, we have not mentioned the affiant’s statement that on other occasions the present informant’s tips had led to convictions. This may have given the magistrate some basis for concluding that the informant was not an irresponsible person. But the magistrate must be enabled to exercise independent judgment upon more than the informant’s general credibility. He must be presented with data sufficient to enable him to judge whether any essential conelusory statement of the informant is more than speculation or surmise, even though past experience may suggest that the informant was not an irresponsible person. The magistrate had no such basis for independent judgment here.

The judgments will be affirmed and the mandates of this court shall issue forthwith.


author:
LAY, Circuit Judge.
      BRIGHT, Circuit Judge

text:
    Dean HALES et al., Appellees, v. GREEN COLONIAL, INC., a corporation, et al., Appellants, v. Harold MUNROE, Third Party Appellee.
    Nos. 73-1122, 73-1136 and 73-1139.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 16, 1973.
    Decided Jan. 17, 1974.
    Rehearing and Rehearing En Banc Denied Feb. 6, 1974.

      Dan Hale, St. Joseph, Mo., for Dover. Joseph K. Houts, St. Joseph, Mo., for Green.
    James Borthwick, Kansas City, Mo., for Iowa Plumbers.
    Thomas A. Sweeney, Kansas City, Mo., for Munroe.
    Michael E. Waldeck, Kansas City, Mo., for appellee.
    Before LAY and BRIGHT, Circuit Judges, and G. THOMAS EISELE, District Judge.

       G. THOMAS EISELE, United States District Judge for the Eastern District of Arkansas, sitting by designation.

   LAY, Circuit Judge.

This is an appeal from money damages awarded for the destruction of a building and its contents by a fire allegedly caused by a defective heater. The trial court submitted the cause to the jury on the theory of strict liability under Missouri law. The jury awarded plaintiffs $102,594.00. The trial court overruled defendants’ motion for a judgment notwithstanding the verdict and their alternate motion for a new trial. We affirm.

Plaintiffs, Dean Hales, Bernadine Hales and James Mogg, were the owners and operators of a Ben Franklin Store in Hamilton, Missouri. In June of 1970, they moved the location of their store to a remodeled building. To determine the heating needs of their new store they contacted Harold Munroe, a licensed plumber and heating installer, who along with a representative of Green Colonial, Inc., an Iowa supplier of heating equipment, visited the premises. Munroe determined that both a 300,000 BTU heating unit and a 150,000 BTU heating unit were necessary to sufficiently heat the store. Munroe ordered from Green Colonial two Peerless brand heaters, specifying that they burn LP gas (propane) since Hamilton had no natural gas supply. Green Colonial in turn placed the order for the two Peerless heaters with Iowa Plumbing Supply, Inc., a distributor in Des Moines, Iowa (IPS). Dover Corporation was the manufacturer of Peerless heater units.

IPS furnished to Green Colonial one 150.000 BTU propane heater and one 300.000 BTU natural gas unit with a conversion kit so that it could be used with propane gas. Green Colonial sent these units on to Munroe. Both of the heaters were installed by Munroe and connected to a propane gas tank by the Solar Gas Company of Hamilton. In October of 1970 Munroe converted the 300.000 BTU natural gas heater by using a conversion kit sent to him from Dover. The conversion kit is manufactured by a different company but Dover supplies them to be used for converting their natural gas heaters. In making the conversion Munroe reduced all the orifices, reduced the elbow pipe and substituted an LP gas valve for the one used for natural gas. He likewise changed the blue tag which was on the natural gas heater to a red tag which designated a propane heater. The red tag along with the orifices, valve and elbow pipe constituted the packaged conversion kit sent by Dover to Munroe. Dover did not send any instructions with the kit. Munroe testified he had made conversions before and was familiar with the procedure. The heaters were operated for approximately a week at which time they were inspected by Munroe. He found the flame to be normal.

In early November the plaintiffs began noticing strange popping and exploding noises coming from the 300,000 BTU heater. On December 10, the gas company representative came and adjusted the gas pressure to 11 inches of water column, the specified setting required by Dover. According to Dover’s experts the reading was taken erroneously and was made at the wrong place. The noises continued and on December 18, a fire caused by the larger heater ignited the combustible contents of the store and destroyed the building.

Plaintiffs brought suit against Green Colonial, Dover and IPS. Dover sought indemnity against Harold Mun-roe, the installer. Green Colonial and IPS brought cross-claims for indemnity against Dover. The jury returned a verdict against the three defendants. Prior to the submission of the case to the jury, the trial court dismissed the claim against Munroe. The court has reserved its ruling on the cross-claims by Green Colonial and IPS against Dover.

On appeal several grounds of error are raised by the defendants. We find only two issues deserve extended consideration: (1) whether the evidence was sufficient to submit the defendants’ liability under the doctrine of strict liability; and (2) whether damages awarded for consequential loss are proper in Missouri under strict liability. We have reviewed the other grounds of error and find they facially lack merit and do not warrant discussion.

In regard to the first issue the defendants contend that (a) there has been no showing of an unreasonably dangerous defect, (b) the product was substantially changed from the condition in which Dover originally sold it, and (c) the plaintiff was guilty of contributory fault.

THE DEFECTIVE HEATER

Plaintiffs’ evidence that the Peerless heater, as converted, was defective rests solely on the testimony of Alfred Ben-berg, a consulting engineer and architect, registered in the State of Missouri. After examination of the Peerless unit he opined that the heater was defective for two reasons: (1) it did not have a flame tube which would ignite all the burners simultaneously, and (2) the air shutter bar was designed in such a manner as to cause delayed ignition regardless of how it was adjusted. He testified that these two defects caused the heater to backflash thereby igniting combustible goods on display in the store. Defendants attack this testimony as being speculative and without any scientific or engineering certainty. They couple this attack with the fact that their expert witnesses, also licensed engineers, suggest that the burner was operating without sufficient gas pressure and that this in reality caused the fire. They urge that the manual setting of the air adjustment bar by Mr. Mun-roe, the installer, along with the improper pressure set by the gas company caused a delayed ignition and the resulting fire. The defendants also offered testimony that the particular heater in question had been certified as being safe and properly designed by the American Gas Association, a trade organization for the natural gas industry.

Plaintiffs’ evidence as to causation causes this court, as it did the trial court, a good deal of difficulty. Mr. Benberg’s opinion that the air adjustment valve did “not provide sufficient air adjustment to be sure that you get an even distribution through the burners” is not amplified or explained. This theory was not developed in any detail during either the direct or cross examinations. As the defendants suggest Mr. Benberg’s explanation is confusing to say the least.

Defendants’ engineer points out that LP gas requires 10% less air for combustion than natural gas. His testimony was that the adjustment of the air vent cannot in any way affect the velocity of the gas but simply affects the mixture of the air with the gas, thus determining whether there will be a rich or lean combustion. Plaintiffs urge on appeal that the fault with the air vent lies with the fact that the air adjustment bar is not designed to allow for individual adjustment to any one of the 18 burners. The record shows, however, that Mr. Benberg did not attribute the cause of the fire to the absence of individual adjustment. His testimony points up that the triangular flanges or fingers on the bar can be individually adjusted. Mr. Benberg’s complaint is that there is not an even distribution throughout all the burners. Without further explanation we find Mr. Benberg’s bare conclusion concerning the air bar insufficient to sustain the verdict.

However, notwithstanding this shortcoming, we find it a fair inference from his testimony that the basic heater lacked a flame tube in the back of the burners which would provide uniform ignition from the single pilot light. This is explained by Mr. Benberg as follows:

A. The effect of not having a flame tube or a carryover tube is that the flame must jump from one burner to the other, two inches, as a matter of fact. Whereas, if they had a carry-over tube the flame would be, a perforated lighter tube, the flame continues for the entire length and they would all light up at the same time. Now, they have to jump a total of two inches. But this is — or over two inches, as a matter of fact. This is particularly undesirable when it’s LP gas because of the fact that LP gas is lighter and it comes out and then it will drop down, whereas natural gas, that will come out in a cone, you’ll have a much easier distribution or propagation of the flame. But you have two inches to jump here, and it just, in my opinion, can’t do it, properly and safely.

Plaintiff Dean Hales’ own testimony was that on one occasion shortly before the fire the unit “exploded so hard” that it “bent the metal bottom down.” Plaintiffs’ theory, as urged on appeal, is that the gas dropped down, collected in the botton of the unit and because of imperfect ignition, finally exploded.

Benberg’s testimony concerning the absence of the flame tube was not subjected to any cross-examination. Defendants challenge it on appeal on the basis that one of their witnesses, Robert Mackley, the chief engineer for Peerless Division of Dover, explained that the unit has a continuous series of ports, called carry over ports, on the back, which ignite simultaneously. It was conceded by the defense that there was no flame tube as such on the unit but that the continuous ports constituted its equivalent. The unit along with photographs are in the record. The exhibits demonstrate that there is not a continuous connection on the 18 burners. This evidence was before the jury. We find the exhibits when coupled with plaintiffs’ explanation are sufficient to create a reasonable inference that the heating unit was defective in that delayed ignition could result by reason of the absence of a flame tube. See Tucker v. Central Hardware Co., 463 S.W.2d 537 (Mo.1971).

NO “SUBSTANTIAL” CHANGE

Missouri has adopted § 402A of the Restatement (Second) of Torts (1965), which permits the liability of the supplier of a chattel to be determined under the doctrine of strict liability. See Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362 (Mo.1969). This court has recently reviewed the Missouri cases as they relate to strict liability and defective design. See Hoppe v. Midwest Conveyor Co., Inc., 485 F.2d 1196 (8th Cir. 1973).

In the instant case the trial court instructed the jury as follows:

First, defendants sold the Peerless heater unit manufactured for use with natural gas, and
Second, that the Peerless heater unit as manufactured by defendant Dover was defective and, therefore, dangerous when put to the use reasonably anticipated, and
Third, that the defendant Dover supplied the parts designed to convert the natural gas heater to a propane gas heater, and if .«you further find that when such parts were properly installed to convert the natural gas heater to a propane gas heater said heater as converted was in substantially the same condition as it would have been if originally sold by defendant Dover for use with propane gas, and
Fourth, plaintiffs used the Peerless heater unit in a manner reasonably anticipated and that as a direct result of defects in the Peerless heater unit as sold by defendants plaintiffs’ building and the contents were caused to be destroyed by fire as a result of such defects, then your verdict would be for the plaintiffs and against the defendants.

Defendants challenge the third paragraph of the above instruction, asserting that since the heater was converted from one using natural gas to one using LP gas it was no longer in the same condition as it was when it left the hands of Dover. They therefore urge that the doctrine of strict liability is not applicable.

It is true that when the heater left Dover it was designed only for the use of natural gas. We assume for purposes of our discussion that the unit was properly designed for natural gas. The defendants contend that since the unit was substantially changed when converted to a propane heater the defendant manufacturer is not liable under § 402A of the Restatement. The difficulty with the defendants’ argument is that the evidence shows Dover manufactured its natural gas units so they could be converted for LP gas. And in fact the particular conversion unit was sent by Dover to Munroe for this very purpose. The evidence also shows that Munroe was paid by Green Colonial for the work of converting the unit to LP gas since Munroe had orginally ordered an LP gas unit but instead was supplied with a natural gas one. Furthermore the evidence establishes that although the defendants’ engineers called Munroe’s work “sloppy” his conversion was done only with the parts furnished him in the conversion kit. There is nothing to show that Munroe did not install the parts within normal tolerances or that the conversion itself contributed to the fire.

The law recognizes that there can be strict liability of a supplier even though the product is altered or changed if it is foreseeable that the alteration would be made and the change does not unforeseeably render the product unsafe. In effect the question involved is simply whether the intervening alteration of the product was the superseding cause of the injuries. Mazzi v. Greenlee Tool Co., 320 F.2d 821 (2d Cir. 1963). Cf. Dennis v. Ford Motor Co., 471 F.2d 733 (3d Cir. 1973). As the Second Circuit recognized:

[T]he mere fact that there has been some alteration of the product does not, as a matter of law, relieve the manufacturer of liability otherwise attaching to it. ... This, it seems, to us, must be the essence of any doctrine of “substantial alteration”, and if the evidence was such that the jury could reasonably have found that the alterations in question were not a superseding cause of the injury, it was error to direct a verdict on that ground.

Mazzi, supra 320 F.2d at 826.

See also Sharp v. Chrysler Corp., 432 S.W.2d 131 (Tex.Civ.App.1968). Missouri has recognized that the alteration of a product does not by itself render the doctrine of strict liability inapplicable. See Williams v. Ford Motor Co., 411 S. W.2d 443, 450 (Mo.App.1970). Where the inadequacy of the change or alteration is the sole cause of the damage then the question is one of law for the court. Swindler v. Butler Mfg. Co., 426 S.W.2d 78 (Mo.1968). However, where the evidence is conflicting, it is generally a question for the jury to determine whether the defect is traceable to the time the product left the manufacturing company. See Williams v. Ford Motor Co., supra; Anderson v. Klix Chemical Co., 256 Or. 199, 472 P.2d 806 (1970).

CONTRIBUTORY FAULT

Defendants also urge that plaintiffs were guilty of “contributory fault” since they had prior knowledge that the heater was not working properly. Under the doctrine of strict liability plaintiffs cannot be guilty of contributory fault unless they had knowledge of the specific defect and continued to use the heater knowing it to be dangerous. See Williams v. Ford Motor Co., 454 S.W.2d 611 (Mo.App.1970). In Morrow v. Caloric Appliance Corp., 372 S.W.2d 41 (Mo.1963) (en banc), the facts were somewhat similar. The Supreme Court of Missouri rejected an instruction charging plaintiffs with knowledge of the dangerous potentialities of a stove, even though they knew it was not functioning properly. The court said plaintiffs “should not be required to anticipate that the valve controlling the left burners was also defective.” Id. at 57. In the present case the facts show that when the plaintiffs observed and heard the popping noises they called the gas company whose serviceman came out and regulated the pressure. Defendants assert that the gas company improperly lowered the pressure. However, defendants’ experts admitted they were not aware of a pressure regulator on the back of the stove. Plaintiffs’ rebuttal by the gas company serviceman was to the effect that the regulator on the back of the stove was the controlling regulator and that he had properly taken the pressure at the right place. All of these facts were for the jury. In view of the favorable verdict for the plaintiffs they are entitled to the presumption that the jury rejected the defenses of contributory fault and the improper pressure as intervening causes.

We conclude that the evidence was sufficient to sustain the verdict for the plaintiffs.

DAMAGES

The defendants maintain that under the doctrine of strict liability damages for destruction of property and consequential losses are not recoverable in Missouri. The assertion is that the Missouri cases dealing with strict liability have involved only physical harm. This overlooks Morrow v. Caloric Appliance Corp., 372 S.W.2d 41 (Mo.1963) (en bane), as well as the subsequent adoption by the Missouri Supreme Court of Restatement (Second) of Torts § 402A (1965), which extends the doctrine of strict liability to property damage as well as physical harm.

Defendants contend that consequential damages such as loss of profits, the cost of repairs and the expense of cleaning up after the fire are not recoverable under strict liability. We deem the cost of repairs and clean-up as an integral part of the direct property damage incurred. We are, however, somewhat troubled by the $8,000.00 awarded for loss of profits. This is an indirect economic loss and thus must be classified as consequential damages. The argument is made that strict liability is akin to an action for implied warranty and that consequential damages are not actionable under that theory in Missouri. See Smith v. Ford Motor Co., 327 S.W.2d 535 (Mo.App.1959); Krauskopf, Products Liability, 33 Mo.L.Rev. 24 (1968).

The question of the recovery of consequential damages under strict liability was originally discussed by the California Supreme Court in Seeley v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (Cal.1965) (en banc). There, the primary distinction was drawn between tort recovery for physical harm and property damage and an action in warranty to recover for economic loss. The theory is basically that the law of warranty still governs the economic relationship between the parties. Many decisions have followed See-ley. See Bright v. Goodyear Tire & Rubber Co., 463 F.2d 240 (9th Cir. 1972); Southwest Forest Industries, Inc. v. Westinghouse Electric Corp., 422 F.2d 1013, 1020 (9th Cir.), cert, denied, 400 U.S. 902, 91 S.Ct. 138, 27 L.Ed.2d 138 (1970); Noel Transfer & Package Delivery Service, Inc. v. General Motors Corp., 341 F.Supp. 968 (D.Minn.1972); Farr v. Armstrong Rubber Co., 288 Minn. 401, 179 N.W.2d 64 (1970); Melody Home Mfg. Co. v. Morrison, 455 S. W.2d 825 (Tex.Civ.App.1970). Contra, Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (N.J.1965).

The cases where the damage has been limited to the “loss of the bargain” have generally been strictly commercial transactions involving parties in privity, sometimes with disclaimers, or where the subpurchaser or the ultimate consumer is involved the claim for relief has been based solely on economic loss without accompanying damage to the plaintiff’s other property. We are not here dealing with the typical “loss of bargain” issue. There is no claim that loss of profits were caused by the defective heater inadequately heating the building or that the plaintiffs incurred damages from loss of use of the heater. Cf. Seeley v. White Motor Co., 63 Cal.2d 9, 45 .Cal.Rptr. 17, 403 P.2d 145 (1965) (en banc) (loss of profits claimed from defective truck). Here the defective heater burned plaintiffs’ building and disrupted their business for eight months. Loss of profits by reason of the tortious destruction of the plaintiffs’ business was a foreseeable damage ordinarily cognizable in tort liability and therefore we find it to be compensable under Missouri law. See Restatement of Torts §§ 927 and 928 (1939).

The judgment is affirmed.

BRIGHT, Circuit Judge

(dissenting).

Only rarely and with great reluctance do I ever vote to overrule a jury verdict in a civil ease, but I would do so here to avoid an obvious miscarriage of justice.

The manufacturer, Dover Corp., did not supply the heater in the condition which allegedly caused the fire in plaintiff’s store building. Dover supplied its wholesaler, Iowa Plumbers Supply, with a 300,000 BTU Peerless natural gas heater. When Iowa Plumbers received an order from Green Colonial, Inc., a supplier of heating units, to supply a 300,000 BTU propane heater to Harold Munroe, a plumber servicing plaintiff’s store, it sent the natural gas heater and a conversion unit which Dover supplied for customers but which it did not manufacture. Green Colonial passed this unit on to the plumber, Munroe, who attempted to make a proper installation.

The record shows the plumber, Mun-roe, to have been less than an able artisan. When the time came in the fall of the year to light the heater which had been installed during the prior summer, the local propane distributor, Solar Gas Company, discovered that the plumber had connected the natural gas heater to the propane gas line without installing the conversion kit — creating an extremely dangerous situation. The propane serviceman disconnected the heater from the gas service. Plumber-Monroe then ordered a second conversion kit from his supplier, Green Colonial, and made the installation.

Although the plaintiffs complained of the operation of the heater, the plumber upon learning of this “trouble” with the heater, sought to make adjustments himself without advising his supplier. Munroe asked the propane gas serviceman to check the pressure. The latter found the pressure high in his estimation and turned down the pressure valve, reducing the gas pressure to the heater.

Credible expert testimony indicated that the gas serviceman should have increased rather than decreased the pressure in the line. Finally, the undisputed testimony established that the plumber upon installing the smaller orifices in the heater during conversion to propane gas use failed to properly align these orifices on an equal plane.

What we have here is the case of a manufacturer being held liable for merely supplying a heater — approved by industry standards — which others altered, installed, and serviced. It seems to me that the - doctrine of strict liability should not apply in such a case, unless plaintiff establishes that a defect existed in the heater when it left the plant.

The existence of such a defect rests solely on the testimony of plaintiff’s expert, Alfred Benberg. The majority aptly and properly characterizes his air-adjustment theory as “confusing” and “insufficient to sustain the verdict.” Nevertheless, the majority finds a basis for the verdict in the same witness’ testimony that the absence of a flame tube constituted a factory defect which caused the explosion in the heater.

The flaw in witness-Benberg’s analysis is that, while criticizing the absence of the flame tube, he made no comment concerning the alternate method chosen by Dover to quickly spread the flame in its Peerless heaters. Dover’s chief engineer and a designer of the Peerless heater testified without dispute that the Peerless heater contains a form of flame tube, a continuous row of “carry-over ports” running the total length of the heater. He further testified that a prototype of the Peerless heater was tested under standards of the industry as promulgated by the American Gas Association. The heater met the standard for ignition of main burners and was certified as meeting industry standards including national safety standards. Witness-Benberg simply failed to recognize the existence of a flame tube differing in construction from flame tubes on other heaters with which he apparently was familiar. The Benberg testimony thus does not represent sufficient evidence on which to sustain this verdict.

A representative of the American Gas Association (testing) laboratories testified:

Q. Now, do you have a standard there by which this heater was tested that has to do with the operation and the ignition of the main burners? A. Yes, that would be covered in the ignition test that we conduct. For example, under Section 2.5.2 there is this standard or this provision, “The arrangement of main burners, burner valves and pilot burners shall be such that when only the pilot burners are in operation the gas from any burner or combination of burners will be effectively ignited without delayed ignition, flashback or danger to the appliance under the condition of tests specified under 2.5.1, Clauses A to D, inclusive.”
Q. Now, before you go on, Mr. Kampman, was this heater tested against that standard in the laboratory of the American Gas Association? A. That prototype was tested, yes.
Q. Right. And did it pass the test? A. It did.

Judges properly should give the juries great leeway in assessing the experts’ opinions. But in cases, such as this one, where the expert’s testimony gives an opinion ignorant of the actual operation of the product in question, the opinion, must be ignored and a verdict, resting wholly on such opinion set aside.

I conclude that plaintiff presented no evidence of probative weight showing the heater to be defective when it left the factory. Thus, I find no basis to assess any liability against appellant-manufacturers or the appellant-suppliers. I would reverse the judgment.

      . Munroe explained that he had either used or misplaced the original conversion kit sent him at the time the heater was originally furnished.

      . We find no error in this. We think it clear if Dover is liable to plaintiffs for furnishing a defective heater which caused the fire it would not be legally passible for it to obtain indemnification for alleged faulty installation. Nor do we find error in the dismissal of the claim before it was submitted to the jury as the defendants assert.

      . Although the parties urge us to pass on the merits of the cross-claims “to avoid piece-meal appeals” we decline to do so. There is no judgment on the cross-claims by the district court and any ruling we could now give would be advisory. This we lack power to do.

      . Q. (By Mr. AValdeck) Mr. Benberg, with regard to the air shutter bar and the flanges on it, what is the effect of the flanges with regard to the venturi principle? A. By the flanges you mean these triangular fingers that stick up?
      Q. The fingers. A. It reduces the velocity of the stream and — rather it increases the velocity of the stream.
      The Court: Talking about air or gas?
      The AVitness: The mixture of air and gas, because this particular — it reduces the gas stream, or rather increases the velocity of the gas stream, and therefore
      Mr. Hale: Now, Your Honor, I’m confused whether he means that when you mové this finger over into the stream of gas, Mr. Benberg, are you testifying that increases the velocity of the gas stream?
      The AVitness : That’s right.
      Q. (By Mr. AAaldeck) Go ahead, Mr. Benberg. A. Therefore, you will get some air pulled in. How much I don’t know.

      . In Tucker v. Central Hardware Co., 463 S.W.2d 537 (Mo.1971), plaintiffs expert witness, Dr. Koopman, provided sufficient basis to submit the issue of an alleged defective cable as causing a fire. The Missouri Supreme Court observed:
      In our opinion the testimony of Doctor Koopman was sufficient to permit the jury to find that the more reasonable probability was that the fire resulted from a defect in the cable for which defendant was responsible, i.e., which existed at the time of installation of the cable. Such was the burden of plaintiffs. They were not required to produce “absolutely positive” proof. “The finding, however, must be based upon probative facts, and a verdiet founded on speculation and conjecture cannot stand. American Cyanamid Co. v. Fields, supra [4 Cir., 204 F.2d 151]. Probative facts may be established by circumstantial evidence, and while circumstantial evidence need not have the quality of absolute certainty, Ferrell v. Sikeston Coca-Cola Bottling Co., Mo.App., 320 S.W.2d 292, the circumstances must point to the desired conclusion with such a degree of certainty as to make that conclusion reasonable and probable and must rise above the stature of guesswork, speculation or surmise. Gray v. Williams, Mo. App., 289 S.W.2d 463. Plaintiff’s evidence must be viewed in the light most favorable to him, and he is entitled to the benefit of all inferences reasonably arising from the evidence. American Cyanamid Co. v. Fields, supra.” Green v. Ralston Purina Company, Mo.Sup., 376 S.W.2d .119, 123-124 [1-4]. Koopman’s testimony was substantial evidence justifying a submission of plaintiffs’ cause.

        Id. at 540.

      . These facts at least as they apply to Green Colonial are analogous to the automobile dealers servicing and making mobile a new car at the request of the manufacturer. Of. Vandermark v. Ford Motor Co., 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168 (1964) (en banc).

      . The claim of implied warranty and one in strict liability are said to be treated alike, at least in Missouri. Keener v. Dayton Electric Mfg. Co., 445 S.W.2d 362, 364 (Mo. 1969).

      . An excellent discussion of the problem of consequential damages in strict liability cases is found in Note, Economic Loss in Products Liability Jurisprudence, 66 Colum.L.Rev. 917 (1966).

      . Although loss of profits was denied because of inadequate proof, in Jack L. Baker Companies v. Pasley Mfg. & Distrib. Co., 413 S.W.2d 268 (Mo.1967), a negligence suit involving an explosion and fire, the Supreme Court of Missouri said :
      The rule in this state with respect to loss of anticipated profits resulting from actionable conduct of another is that they “are recoverable only when they are made reasonably certain by proof of actual facts which present data for a rational estimate of such profits.” Yaffe v. American Fixture, Inc., Mo., 345 S.W.2d 195, 199. In Tnemec Company, Inc. v. North Kansas City Development Co., Mo., 290 S.W.2d 169, 174, this court stressed that the evidence must be sufficiently definite and certain for the jury to make a reasonably accurate estimate of the loss without resorting to speculation. The court said: “Tliis court and the court of appeals of this state have been strict in evaluating the sufficiency of the evidence warranting a recovery of damages for loss of profits. Our courts have refused to permit a jury to speculate, without substantial basis, as to what might be probable or expected profits as an element of damages.”

        Id. at 270. See also Conley v. Kansas City Ry., 259 S.W. 153 (Mo.App.1924) ; Smith v. Chicago & A. Ry., 127 Mo.App. 160, 105 S. W. 10 (1907).

      . Section 927 provides that:
      Where a person is entitled to a judgment for the conversion of a chattel or the destruction of any legally protected interest in land or other thing, the damages include
      (a) the exchange of value of the subject matter or the plaintiff’s interest therein at the time and jilace of the conversion or destruction, or a different value where that is necessary to give just compensation, and
      (b) the amount of any further loss suffered as the result of the deprivation, and
      (e) interest from the time at which the value is fixed or compensation for the loss of use.
      Section 928 provides that:
      Where a person is entitled to a judgment for harm to chattels not amounting to a total destruction in value, the damages include compensation for
      (a) the difference between the value of the chattel before the harm and the value after the harm or, at the plaintiff’s election, the reasonable cost of repair or restoration where feasible, with due allowance for any difference between the original value and the value after repairs, and
      (b) the loss of use.