author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Bobby IMPSON, Defendant-Appellant.
    No. 73-1500.
    United States Court of Appeals, Fifth Circuit.
    July 12, 1973.

      Melvyn Carson Bruder, Bennie R. Juarez, Dallas, Tex., for defendant-appellant.
    Frank D. McCown, U. S. Atty., Ft. Worth, Tex., Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   PER CURIAM:

This is an appeal from a conviction for possession of counterfeit currency in violation of 18 U.S.C.A. § 472. No issue other than the validity of the search and seizure of the incriminating evidence either warrants or requires any discussion. On the merits these other contentions are all rejected. Whether the conviction stands affirmed or has to be vacated for a retrial depends upon the hearing which we require incident to the search and seizure.

Sometime on the 16th day of July, 1971, Secret Service Agent Gary Wis-trand reported to the police authorities in Wichita Falls, Texas that James Bobby Impson and Robert Donald Annett would be in the vicinity of Wichita Falls, possibly en route to Sheppard Air Force Base, in a gold-colored 1965 Thunderbird automobile and would be carrying counterfeit money wrapped in a Kentucky Fried Chicken container. At about 11:20 P.M. Officer Jack Cox of the Wichita Falls police, who had been briefed on this information prior to going on duty that day, spotted the car and ordered it to pull over and once halted, asked the occupants to step out. The only basis for stopping the vehicle was the report received. The officer asked for identification and each showed identification indicating that they were the persons named in the Secret Service Agent’s telephonic alert. Cox then looked into the car and saw in plain view on the rear seat the Colonel Sanders Kentucky Fried Chicken container. In the forward section of the car he noticed “some loose change and cash (bills) laying in the console.” Presumably expecting to find the booty, not a thigh, the officer opened up the package and there, of course, was the bogus money.

The difficulty in the case arose from the procedural handling of the suppression hearing prior to the first trial of defendant Impson and the stipulated use made at that time of transcripts from an earlier hearing for co-defendant An-nett. The chronological sequence reveals how the district judge was inadvertently misled. Given the confused state of the record, it is understandable that the trial court thought the stipulation in ef-feet adopted for Impson a wavier of the probable cause issue by Annett’s counsel.

We do not question in the least the correctness of the principle that the searching-arresting officer can act on the basis of information of which he has no personal knowledge which has been relayed to him by police transmission facilities. But if that is the sole cause for the detention and resulting search — as it apparently was here — then the government has the burden of showing that the information on which the action was based itself had a reasonable foundation. Whitely v. Warden of Wyoming Penitentiary, 1971, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306.

But here the government — perhaps also a victim of the inadvertent confusion — made no effort whatsoever to show the nature or source of the information that Secret Service Agent Wis-trand relied upon or which led him to issue this pickup alert. Although the Court has wide latitude in determining whether under F.R.Crim.P. 41(e) a belated motion to suppress can be entertained where it might likely interfere with the course of the trial, we do not believe the Judge rejected it on this basis. Rather, we think that probably out of inadvertent confusion on the part of the prosecutor and the Judge there was a feeling that, as an afterthought and a last ditch effort, counsel for Impson was trying to drag in probable cause when up to that time it was a search warrant issue only.

Nevertheless, whatever the origin of the error, the record demonstrates that the issue was squarely posed and there was no effort by the government to fill this critical void.

At the same time, however, this omission does not go to the validity of the conviction. Whether there is probable cause for the search is not a matter with which the jury is concerned or which could in any way influence its decision. The evidence either is, or is not, admissible and that is a determination in the first instance to be made by the trial Judge. Consequently this is an appropriate place for the application of a Jackson v. Denno, type of post-trial hearing for the Court to determine whether there was probable cause, Turk v. United States, 8 Cir., 1970, 429 F.2d 1327, 1332, for the momentary detention of the gold Thunderbird and if so, whether in the light of that information and the corroboration very quickly obtained by the proven identity of the occupants and the presence of the Kentucky Fried Chicken container, there was probable cause for the balance of the search.

If there was, the conviction stands affirmed. If there was not, then the conviction must be set aside and a new trial had. To accomplish this we vacate the judgment of conviction and remand for consistent proceedings including a resen-tence, F.R.Crim.P. 32, if the search is found valid.

Vacated and remanded.

      . Trial Transcript pp. 47-48.

      . On October 25, 1971, a suppression bearing was conducted on behalf of Annett. Defendant Impson, with his then counsel, was present under subpoena by the Government for possible use on the trial, but no proceedings were had which specifically related to Impson. At least three times during the 1971 hearing, counsel for Annett made statements that he did not question “probable cause.”
      For example, there was this exchange between Court and counsel:
      “THE COURT: So we won’t waste a lot of time in this case — Mr. Drake, have a seat. Mr. Spence, your motion says that there is no probable cause— “MR. SPENCE: [counsel for defendant Annett] : I make no issue on the probable cause, but I do say that there was ample time for the authorities to have obtained a warrant for the search of the automobile or a warrant for the arrest of the individuals who were occupying the automobile.
      “THE COURT: All right.”
      Annett’s counsel relied primarily on the contention that there was adequate time, and hence a necessity, for obtaining a warrant. Subsequently, Annett pleaded guilty and was convicted.
      In October, 1972, prior to Impson’s first trial a suppression hearing was conducted in his behalf. The memorandum in support of Impson’s original motion to sup-X)ress, while primarily focused on the necessity for a search warrant, did raise the probable cause issue. At the hearing on this motion on October 24, 1972, the trial judge accepted the parties’ stipulation to use some 65 pages of testimony and colloquy from Annett’s 1971 suppression hearing in order to conserve time. Of course, the stipulation did not agree to the truth of the testimony, only that the witnesses would so testify. On that record, the motion to suppress was denied. Impson’s first trial ended with a deadlocked jury and mistrial on October 30, 1972.
      On tlie morning of Impson’s second trial, December 13, 1972, his new counsel submitted a new motion to suppress, this time stressing in great detail the probable cause issue.
      The district court judge was concerned over the propriety of the motion for two reasons. First, the Government was unprepared to respond since the new motion was served just shortly before the proceedings began. More significantly, the trial judge was of the view that the stipulation for the use of the October, 1971, suppression hearing record included a waiver of the probable cause issue. On this the judge correctly recalled the statements made by Annett’s counsel at the 1971 hearing which expressly waived the probable cause issue.
      Thus, two facts are apparent: (i) Impson’s attorney at the December 13, 1972 proceedings, did attempt to explain that the stipulation for the use of the 1971 proceedings did not include concessions made by Annett’s counsel, and (ii) no actual evidentiary hearing, uninfected by the judge’s erroneous attribution of the concession eliminating probable cause, was ever conducted to ascertain upon what facts Secret Service Agent Wistrand alerted the Wichita Fails authorities to pick up both Annett and Impson.

      . 1964, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.

      . See, e. g. the following cases in which the appellate court remanded the case for a post-trial hearing:
      Smith v. State of Texas, 5 Cir., 1968, 395 F.2d 958; Black v. Beto, 5 Cir., 1967, 382 F.2d 758; Davis v. Beto, 5 Cir., 1970, 423 F.2d 633; Moreno v. Beto, 5 Cir., 1969, 415 F.2d 154; Hizel v. Sigler, 8 Cir., 1970, 430 F.2d 1398.


source: Caselaw Access Project

author: NICHOL, District Judge.

license: Public Domain

text:
    Thomas M. TOOLEN and Emily Toolen, Appellants, v. Herman Andrew KUTZ, Appellee.
    No. 72-1396.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 12, 1973.
    Decided July 27, 1973.
    Rehearing Denied Aug. 20, 1973.

      Vincent M. Igoe, St. Louis, Mo., for appellants.
    Robert C. Ely, St. Louis, Mo., for ap-pellee.
    Before LAY and BRIGHT, Circuit Judges, and NICHOL, District Judge.

       Chief Judge, District of South Dakota, sitting by designation.

   NICHOL, District Judge.

The parents of Kevin Toolen brought suit in the Circuit Court of St. Louis County for the death of their son pursuant to the Missouri wrongful death statute. V.A.M.S. 537.080. Thereafter, the defendant removed the case to the United States District Court for the Eastern District of Missouri. The case was tried and submitted to the jury on the basis of the Missouri Humanitarian Doctrine. From an adverse verdict and denial of a new trial the plaintiffs appeal.

Briefly, the evidence received at trial, viewed in the light most favorable to the jury verdict, shows that fifteen year old Kevin Toolen was struck and killed on December 10, 1971, at approximately 11:00 p. m., when he was hit by a 1971 Lincoln Continental driven by the defendant, Herman Andrew Kutz. Kevin and his companion, Edward Sahs, were walking home from a church dance, and their route brought them to the three eastbound lanes of Interstate 270 near its intersection with Old Halls Ferry Road, St. Louis County, Missouri, where the accident occurred. The defendant was driving east at a speed of sixty to sixty-five miles per hour in the far left lane adjacent to the grass median. The weather was clear and dry, and there were no obstructions to Kutz’s vision. At some point beyond the above intersection’s overpass the defendant testified that his attention was attracted to the two boys, approximately two hundred feet ahead, “jumping about” in the lane immediately to his right. Other, conflicting testimony at trial placed the defendant’s first awareness of the boys at a position on the shoulder of the highway, just prior to their dash across the Interstate. The defendant recalls releasing the accelerator and, then, slamming on his brakes and skidding into the decedent who had entered the defendant’s driving lane.

Plaintiffs list four points to be raised on appeal. Of the four points so listed they have failed to brief or argue three; consequently, they will be deemed abandoned by this court. The fourth point charges that the trial court erred in instructing the jury as follows:

You are instructed that Kevin Toolen was not in a position of immediate danger until he began running toward the path of defendant’s automobile and defendant was under no duty to slacken his speed until then.

It is the plaintiffs-appellants’ position that the question of where the area of immediate danger commences under the Missouri Humanitarian Doctrine is one of fact for the jury, that the District Court erred in partially defining that area, and that this instruction is prejudicial in that it “does not impose a duty upon Defendant to exercise the highest degree of care once (Defendant) could have known of the danger of Kevin Toolen.”

The defendant-appellee argues that the instruction is not in error because it does not tell the jury the place where the imminent peril arose nor where it commenced, “but merely informs the jury that imminent peril could not have come into existence at anytime prior to a certain point in the chain of events.”

The sole issue for resolution is whether it was prejudicial error for the trial court to instruct as quoted above in a case tried and submitted to the jury on the Missouri Humanitarian Doctrine. We find that it was error to so instruct and reverse and remand for a new trial.

This issue has been confronted in the Missouri State Courts within factual contexts involving car-pedestrian, train-car, and train-pedestrian collisions. The rule expressed in those cases is that the point where the zone of immediate danger commences in cases invoking the Missouri Humanitarian Doctrine is one for the jury under the facts and circumstances of the ease. Sperry v. Tracy Dodge-Plymouth Company, 344 S.W.2d 108 (Mo.1961); Perry v. Dever, 303 S.W.2d 1 (Mo.1957); Pitt v. Kansas City Public Service Company, 272 S.W.2d 193 (Mo.1954); Wofford v. St. Louis Public Service Co., 252 S.W.2d 529 (Mo.1952); Johnson v. Hurck Delivery Service, Inc., 353 Mo. 1207, 187 S.W.2d 200 (1945); Brown v. Alton, 236 Mo.App. 26, 151 S.W.2d 727 (1941); Perkins v. Terminal R. Ass’n of St. Louis, 340 Mo. 868, 102 S.W.2d 915 (1937); Womack v. Missouri R. Co., 337 Mo. 1160, 88 S.W.2d 368 (1935). This rule has been followed by this court in several cases. Rudloff v. Johnson, 267 F.2d 708 (8th Cir. 1959); Illinois Terminal R. Co. v. Creek, 207 F.2d 475 (8th Cir. 1953); Herron v. Wilson, 186 F.2d 72 (8th Cir. 1950).

In factual circumstances such as these the Missouri courts place upon a defendant automobile driver the duty to exercise the highest degree of care to discover the dangerous position into which a careless plaintiff has placed himself. The imposition of this duty was effectively precluded by instructing the jury that the area of immediate danger did not commence until the boys began running toward the path of the oncoming Lincoln. The trial court’s instruction prohibited the jury from finding, under the conflicting evidence, that the boys were in immediate danger in their position on the shoulder of the Interstate Highway at night. The appellants’ evidence, through the testimony of Patrolman Terry Boaz, attributed the defendant-appellee with having seen the boys on the highway’s south shoulder prior to the accident. Thus the District Court’s instruction foreclosed the jury from establishing that the boys were in an area of immediate danger when they were seen standing on the shoulder bordering the superhighway, and, consequently, the highest degree of care was not imposed until they began the ill-fated dash across the Interstate.

It was manifest error for the instructions to have advised the jury when Kevin came into peril. When Kevin came into peril was a fact question for the jury. Wofford v. St. Louis Public Service Co., supra, at 252 S.W.2d 533.

Reversed and remanded for a new trial.


author: HEANEY, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Walter MARTIN, Jr., Appellant.
    No. 73-1041.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 18, 1973.
    Decided July 3, 1973.

      Kenneth J. Bini, St. Louis, Mo., for appellant.
    Michael W. Reap, Sp. Atty., U. S. Dept, of Justice, Office for Drug Abuse Law Enforcement, St. Louis, Mo., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and TALBOT SMITH, Senior District Judge.

       District of Eastern Michigan, sitting by designation.

   HEANEY, Circuit Judge.

Walter Martin, Jr., was convicted on two counts of knowingly and intentionally distributing heroin on August 8, 1972, and August 10, 1972, in violation of 21 U.S.C. § 841(a)(1). He was sentenced to ten years imprisonment and a three-year special parole term on each count, the sentences to run concurrently.

Martin’s first contention is that the trial court erred in denying his motion for a directed verdict of acquittal because entrapment had been established as a matter of law. We find no merit to this contention. There is no evidence in this record to indicate that the government did anything more than afford Martin an opportunity to sell heroin to a government informant on two separate occasions. Martin eagerly accepted the opportunity. He was not an innocent man induced to commit a crime. See, United States v. Richard Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); McWilliams v. United States, 394 F.2d 41, 46-47 (8th Cir. 1968), cert. denied, 393 U.S. 1044, 89 S.Ct. 643, 21 L.Ed.2d 593 (1969).

Martin’s second contention that the government failed to prove that he distributed narcotics to a government informant, Bullock, on August 8 and 10, is without merit. On each occasion, government agents followed the same procedure. They thoroughly searched Bullock for narcotics and found none; they then gave him money to make a purchase; they kept him under continuous observation until he met with Martin; they observed that packets were transferred from Martin to Bullock — in one instance, directly and in the other, indirectly— and that Bullock also transferred something to Martin; they kept Bullock under continuous observation until he returned; and they then searched Bullock and found that he had packets of heroin in his possession. Martin urges that procedure was fatally defective because the eye witnesses were not close enough to Martin and Bullock when the transfers were made to permit them to testify that the packets transferred by Martin to Bullock contained heroin. We do not agree. The evidence, considered as a whole, was sufficient to support a jury finding that the packets transferred contained heroin. See, United States v. Mosby, 422 F.2d 72 (8th Cir.), cert. denied, 399 U.S. 914, 90 S.Ct. 2217, 26 L.Ed.2d 571 (1970); Byrth v. United States, 327 F.2d 917 (8th Cir.), cert. denied, 377 U.S. 931, 84 S.Ct. 1333, 12 L.Ed.2d 295 (1964).

Martin’s third contention is that the trial court erred by refusing to permit government witnesses to be questioned with respect to Bullock’s reputation and his status as a narcotics addict. It did so on the grounds that such testimony would be hearsay. We do not believe that the error, if any, was prejudicial. The crucial issue in the case was whether Martin delivered heroin to Bullock, and the resolution of that issue turned on whether the jury believed the law enforcement officials’ testimony with respect to the procedures followed by them at the times of the sales and particularly the testimony that they saw Martin transfer packets to Bullock. The latter’s reputation would cast little light on either question.

Martin argues that Bullock was an indispensable witness and seems to urge that his conviction should be set aside because Bullock was not called by the government. There is no merit to this argument. The government did not conceal Bullock’s identity or whereabouts, and it was not under the circumstances of this case obligated to call him as a witness. United States v. Mosby, supra, 422 F.2d at 74.

Martin’s fourth contention, that the trial court erred in failing to declare a mistrial when a government witness volunteered on cross-examination that a detective and Bullock had engaged in a conversation “about known drug pushers and so on,” is without merit. The answer was responsive and does not appear to have been a deliberate effort to show that the defendant was a person of bad character. In any event, the answer did not cause such prejudice to the defendant as to require a mistrial.

Martin finally contends that the indictment was fatally defective in that it failed to reveal the name of the purchaser of the narcotics. There is no merit to this contention. See, Aggers v. United States, 366 F.2d 744 (8th Cir. 1966), cert. denied, 385 U.S. 1010, 87 S.Ct. 719, 17 L.Ed.2d 548 (1967).

Affirmed.


author: LEWIS R. MORGAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. The STATE OF FLORIDA and Gulf Power Company et al., Defendants, John R. Tucker et al., Defendants-Appellants.
    No. 72-3563.
    United States Court of Appeals, Fifth Circuit.
    July 12, 1973.

      J. McHenry Jones, Philip D. Beall, John M. Coe, Attys., Pensacola, Fla., for defendants-appellants.
    William Stafford, Jr., U. S. Atty., Pensacola, Fla., Dennis J. Whittlesey, Atty., Peter R. Steenland, Dept, of Justice, Washington, D. C., Daniel S. Dear-ing, Atty., Chief Trial Counsel, Tallahassee, Fla., Kent Frizzell, Asst. Atty. Gen., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before TUTTLE, GODBOLD and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

The United States, owner of the Naval Live Oak Reservation, a 1,377 acre tract of land located in Santa Rosa County, Florida, brought suit in federal district court to quiet title and obtain a declaratory decree as to the tract. The district court found the United States to be the owner and holder of the fee simple title to the land, subject to certain easements and conditions. We affirm.

History

The United States first obtained this land by various conveyances executed between 1828 and 1832. In 1869, all records of these conveyances were destroyed in a court house fire. State taxes were assessed on the reservation in 1870, 1871 and 1872. As a result of nonpayment of these taxes, tax deeds were executed by the State of Florida to certain private individuals. Taxes continued to be assessed on portions of this land until 1932, when the Governor of Florida, pursuant to his statutory authority, executed a document which ceded to the United States all the land in question. Between 1932 and 1947, the United States granted various permits and licenses concerning the use of this land.

The United States, in 1947, conveyed, all of this land back to the State of Florida by a quit claim deed. Part of this conveyance specifically provided:

(1) That said property shall be used exclusively for public park purposes.
(2) That upon breach of the aforesaid restriction by the part [sic] of the second part or any subsequent transferee whether caused by the legal inability of said party of the second part or subsequent transferee or otherwise, all right, title and' interest in and to the property herein transferred shall, at the option of the party of the first part, revert to the party of the first part upon demand made in writing by the War Assets Administration, or its successor government agency,

Immediately after the State of Florida received this land from the United States it brought action to quiet title against the successors in title of the private individuals who purchased the tax deeds for 1870, 1871 and 1872, hereafter referred to as Group A. After lengthy litigation, the Supreme Court of the State of Florida found that the state lost its claim to the land. Daniell v. Sherrill, 48 So.2d 736 (1950). Pursuant to the Court’s opinion, the private individuals, Group A, were found to be owners of the property in question, subject to the terms of the 1947 conveyance from the United, States to the State of Florida. On February 25, 1970, the United States gave notice of its intention to exercise the reverter of the 1947 conveyance and demanded revesting of the title to the land. This right of reentry and reverter was grounded on that portion of the 1947 conveyance which provided that the land should be used “exclusively for public park purposes.”

The United States then instituted this action to quiet title and for declaratory judgment in the Federal District Court for the Northern District of Florida on January 29, 1971. After a non-jury trial, the district court found that the property had not been used exclusively for public park purposes and ordered the title vested in the United States. The district court further found that defendant, Group A’s, arguments concerning the deed, laches, estoppel, waiver, relief against forfeiture, and a Florida limitations statute were all without merit. We agree.

Issues

The contentions of the appellants fall into two categories, contentions of fact and contentions of law. First, the appellants argue that the district court was incorrect in its finding that the Naval Live Oak Reservation was not used exclusively. for public park purposes. Secondly, appellants dispute the findings that the operation of the reverter clause could not be blocked by government regulations, terms of the 1947 deed, laches, waiver, or estoppel.

I

It is urged by appellants that the district court ruled incorrectly on the facts presented below. Appellants contend that clear and convincing evidence was presented which could leave little doubt that the reservation was used for public park purposes.

Rule 52(a) of the Federal Rules of Civil Procedure provides that the findings of fact by a district court in actions tried without a jury shall not be set aside unless “clearly erroneous”. United States v. United States Gypsum Company, 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948), reh. den. 333 U.S. 869, 68 S.Ct. 788, 92 L.Ed. 1147 (1948). Under this rule the determination of the factual content of ambiguous testimony is for a trial court, and such determination can be set aside on review if “clearly erroneous”. Guzman v. Ruiz Pichirilo, 369 U.S. 698, 82 S.Ct. 1095, 8 L.Ed.2d 205 (1962). The rule is also applicable insofar as the district court’s conclusion is based on inference drawn from documents or undisputed facts. United States v. Singer Manufacturing Company, 374 U.S. 174, 83 S.Ct. 1773, 10 L.Ed.2d 823 (1963).

Furthermore, since the jurisdiction of this court is appellate, we have no right to re-try the issues of fact de novo or substitute our judgment with respect to such issues. United States v. United States Gypsum Company, supra; Guzman v. Ruiz Pichirilo, supra; United States v. Singer Manufacturing Company, supra. The function of this court is to determine whether, as a matter of law, the findings sustain the judgment. If, however, the findings of the district court are unsupported by substantial evidence, then the lower court’s decision may be set aside.

The evidence presented before the district court included over 200 exhibits and testimony by more than fifteen individuals. Included in the exhibits were pictures of the land in question, various publications concerning parks, actual no trespassing signs taken from the property, and other similar items. Witnesses testified as to their knowledge of the actual use to which the land in question had been put. The record on appeal also included approximately 170 documents representing the legal proceedings below. This court has examined all the exhibits, testimony and documents involved and we are left with the definite and firm conviction that a mistake has not been committed.

Furthermore, this court is well aware that in many situations a trial court’s findings of a particular fact shade into its conclusion of law. In cases in which the trial court’s findings of fact are based on non-demeanor evidence, the trial court has only to draw the proper conclusions of fact and law from the evidence presented. This court has taken cognizance of that problem in reviewing the district court below, and although this can possibly be considered an unclear area of the law, this court does not find the decision of the district court in the least bit unclear.

Moreover, this court has found that even if it did have the power and authority to review this case de novo, it could only agree with the district court when that court said: “ . . .it appears by clear, convincing and satisfactory evidence that the land has not, since the conveyance in 1947 and during the times pertinent to this decision, been used exclusively for public park purposes; to a large extent it has not been used at all and the uses made of it cannot be characterized as uses for public park purposes.”

II

Appellants also argue that even if the terms of the 1947 conveyance were not complied with, the government is precluded from exercising its right of reentry under the reverter clause because of any one of the following various factors: government regulations, terms of the 1947 deed, laches, waiver, and estop-pel.

This court, having considered appellants’ arguments as to government regulations and terms of the 1947 deed, finds those arguments without merit. Appellants’ contentions as to laches, waiver and estoppel will be briefly discussed by this court because of the variety of interpretations which can be placed on these terms. They, however, also are equally without merit.

Appellants urge that the United States, as to this property, is acting in a proprietory function rather than a governmental one. This court finds that the ceding of land by the United States government to the State of Florida for public park purposes is a governmental function, the action itself being for the benefit of the public.

Whether the defense of estoppel may be asserted against the United States in actions instituted by it depends upon, whether such actions arise out of transactions entered into in its proprietory capacity or contract relationships, or whether the actions arise out of the exercise of its powers of government. The United States is not subject to an estoppel which impedes the exercise of the powers of government, and is not estopped to deny the validity of a transaction or agreement which the law does not sanction. Sanitary Dist. v. United States, 266 U.S. 405, 45 S.Ct. 176, 69 L.Ed. 352 (1925); Utah Power & L. Co. v. United States, 243 U.S. 389, 37 S.Ct. 387, 61 L.Ed. 791 (1916). Nor does an estoppel arise through an act or representation made by an officer or agent without authority to act for the government in the premises. Wilber Nat. Bank v. United States, 294 U.S. 120, 55 S.Ct. 362, 79 L.Ed. 798 (1935); Jeems Bayou Fishing & Hunting Club v. United States, 260 U.S. 561, 43 S.Ct. 205, 67 L.Ed. 402 (1922).

Furthermore, appellants claim that by certain actions of the United States it acknowledged that the land was being used for public park purposes and thereby the terms of the deed were being complied with. It should be remembered, however, that the United States is not bound by declarations of its agents founded upon a mistake of fact unless it clearly appears that the agent was acting within the scope of his authority and was empowered in his capacity as agent to make such declarations. Lee v. Munroe, 11 U.S. (7 Cranch) 366, 3 L.Ed. 373 (1813). The mere mention, therefore, of a Department of Interior official that this land was being used for park purposes is not binding upon the United States in this case.

Appellants have also asserted that the United States cannot now exercise a right of re-entry because of laches; that is, the United States failed to exercise its legal right within the proper time. Not only can laches not be applied as a defense against the United States, but, even if it could, this is not the case for laches. Mount Vernon Mortg. Corp. v. United States by Atty. Gen., 1956, 98 U.S.App.D.C. 429, 236 F.2d 724, cert. den. 352 U.S. 988, 77 S.Ct. 386, 1 L.Ed.2d 367 (1957); Engel v. United States, 6th Cir. 1958, 258 F.2d 50. See also, United States v. Silliman, 3rd Cir. 1948, 167 F.2d 607, cert. den. 335 U.S. 825, 69 S.Ct. 48, 93 L.Ed. 379 (1948).

This court then finds that the United States is not subject to the defenses of laches, waiver or estoppel by virtue of its sovereign immunity and that it is performing a governmental function in ensuring that this land is properly used as a public park. Even if the United States were found to be acting in a pro-prietory manner as opposed to a governmental manner, the defenses themselves, even though applicable, this court finds would not be valid in this case. The appellants were well aware that the United States was planning to enforce its right of re-entry if a public park were not maintained and, furthermore, the United States, throughout the period of time from 1947 to the present, has shown an interest in the status of this land. Therefore, in the conclusion, this court finds that the United States is the rightful owner of this land and the lower court in all respects is

Affirmed.

      . The district court’s exact holding- was: The United States of America is held and found to be the owner and holder of the fee simple title to the land involved herein, less, however, the portion thereof lying below the mean high tide line. Its title, however, is subject to the 120-foot highway easement. The deed itself conveyed the land “subject to existing easements for roads and utilities.” Should there be any, then existing and still extant, not dealt with in this decision, its title would also be subject to them. Respecting all the defendants remaining in the suit, it is entitled to the immediate possession of the portion of the property owned by it, except for the portion thereof contained in the 120-foot easement, and with the further exception of the times allowed herein for the state regarding the 40-foot widening strip, and for the Boy Scouts, Girl Scouts and Gulf Power on the portions used by them. Except as limited herein.

      . The heirs and assignees of these individuals are parties to this litigation and ai-e referred to herein as Group A.

      . These permits and licenses were to local Boy Scout and Girl Scout groups for camping purposes and to the local power company for power line right of ways.

      . In fact, what was presented at trial was both testimentary and documentary evidence as to wbat use the land had been put. In addition to use by both Boy and Girl Scouts, there was evidence as to a temporary pistol range, an elephant grave, a garbage dump, and other rather diverse uses by diverse groups of individuals.

      . The pertinent part of Rule 52(a) to this case is as follows :
      . . . Findings of fact shall not be set aside unless clearly erroneous . . .

      . A Court of Appeals may reverse where there is evidence which, if credible would be substantial, the force and testimony considered as a whole convinces the Court that the finding is so against the great preponderance of the credible testimony that it does not reflect or represent the truth and right of the case. United States v. Schultetus, 5th Cir. 1960, 277 F.2d 322, cert. den. 364 U.S. 828, 81 S.Ct. 67, 5 L.Ed.2d 56 (1961).

      . The Supreme Court has held “A finding [of fact] is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Company, 333 U.S. 364 at 395, 68 S.Ct. 525 at 542, 92 L.Ed. 746 (1948).

      . At one time many courts of appeals took the position that Rule 52(a) did not apply to inferences drawn from undisputed facts, because the trial court’s findings did not depend on its opportunity to observe the demeanor of the witnesses, a court’s refusal to apply Rule 52(a) is now acceptable only when the appellate court is finding “ultimate” facts from, or applying correct legal standards to, undisputed facts. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1970).
      Therefore, under Rule 52(a), not only are findings of fact made by the district court binding on an appellate court unless clearly erroneous, but also tlie rule itself applies to factual inferences drawn from undisputed basic facts.

      . After examining the regulation in question, War Assets Administration Regulation 1, Section 403.19(d)(2), this court finds that the regulation was intended only as a bottom limit or floor, below which the government, should not go. That limit was 20 years, but there was no upward limit on government action. The terms of the 1947 deed are clear in their meaning and in no way conflict with regulation. The regulation itself provides :
      (2) Transfers of property hereunder shall be subject to the following terms, conditions, reservations, and restrictions:
      (i) the property shall be used and maintained for the purpose for which it is conveyed for a period of not less than twenty (20) years: Provided, That in the event such property ceases to be used or maintained for such twenty (20) year period, the property shall in its then existing condition, at the option of the War Assets Administration, or successor Agency, revert to the United States.
      (ii) Such other additional terms, reservations, restrictions, and conditions as may he included hy the War Assets Administration. (emphasis added)

      . It is interesting to note that the United States is not bound by laches even in extreme cases. In the case of United States v. Stein, D.C.Me.1958, 163 F.Supp. 916, the United States there was not subject to the defense of laches in enforcing its right in a claim filed in 1953 for maintenance furnished a Civil War veteran periodically between 1881 and 1908.


author: LEWIS, Chief Judge.

text:
    The Q-PANEL COMPANY, Plaintiff-Appellant, v. Stephen E. NEWFIELD, Defendant-Appellee.
    No. 72-1540.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted March 28, 1973.
    Decided July 2, 1973.
    Rehearing Denied Aug. 8, 1973.

      Arthur L. Cain of Bosworth, Sessions, Herrstrom & Cain, Cleveland, Ohio (Ronald A. Ginsburg, Albuquerque, N. M., on the brief), for plaintiff-appellant.
    James E. Snead, of Jones, Gallegos, Snead & Wertheim, Santa Fe, N. M., for defendant-appellee.
    Before LEWIS, Chief Judge, DUR-FEE, Judge, Court of Claims, and HOLLOWAY, Circuit Judge.

       Sitting by designation.

   LEWIS, Chief Judge.

This appeal reaches us as a side effect of an action tried in the District Court for the District of New Mexico. In the main case plaintiff succeeded in obtaining a judgment declaring United States Patent No. 3,500,682 issued to defendant Newfield to be invalid for obviousness and further dismissing Newfield’s counterclaim for alleged infringement. The single dispositive appellate question is whether the trial court erred in refusing to allow plaintiff to recover attorney fees under the authority of 35 U.S.C. § 285. The cited statute provides:

The court in exceptional cases may award reasonable attorney fees to the prevailing party.

The trial court’s findings and conclusions contain nothing relating to any alleged fraud on the part of Newfield in obtaining the patent and plaintiff’s proposed findings, which would supply a premise for the allowance of attorney fees, were refused by the trial court.

The allowance of attorney fees in a case such as this is not only left to the primary discretion of the trial court but that court’s discretion is severely limited in the first instance to allowance only in “exceptional cases.” Thus plaintiff has the double burden in this court of clearly establishing the existence of an exceptional case and the abuse of discretion by the trial court in not awarding attorney fees. This dual burden is a heavy one, for the awarding of attorney fees in patent cases must be the exception and not the rule.

A finding that a patent is invalid because obvious to one of ordinary skill in the art is not a sufficient premise to trigger an award of attorney fees. The statute contemplates such misconduct upon the part of the losing party as to constitute fraud on the Patent Office or so unfair and reckless as to make it unconscionable for the prevailing party to sustain the expense of counsel. See Purer & Co. v. Aktiebolaget Addo, 9 Cir., 410 F.2d 871, cert. denied, 396 U.S. 834, 90 S.Ct. 90, 24 L.Ed.2d 84. Even less than candid conduct will not dictate the award. Indiana General Corp. v. Krystinel Corp., 2 Cir., 421 F.2d 1023, cert. denied, 398 U.S. 928, 90 S.Ct. 1820, 26 L.Ed.2d 91.

From our review of the record we would term the circumstances leading to the granting of the subject patent to defendant as unusual and containing overtones of loose procedure (particularly in regard to disclosures of the prior art) but not such as would require the trial court to find that plaintiff was abused in an extraordinary case through defendant’s conduct and as a matter of law.

Newfield was employed by the United States Navy at the Mare Island Shipyard Paint Laboratory in San Francisco from June 22, 1964 to April 7, 1967. During this period Newfield was engaged in the testing of paint and other surface coatings. He thus became knowledgeable on the operation and construction of three prominent accelerated weathering testers, the Atlas Twin Arc Weather-Ometer, the Salt Fog Cabinet, and the Cleveland Condensing Humidity Cabinet. All three of these devices are designed to simulate weathering factors and accelerate the consequent effects upon various surface coatings.

During the course of his employment at Mare Island, Newfield concluded that the Atlas Weather-Ometer, the Salt Fog Cabinet and the Cleveland Humidity Cabinet did not individually produce results which correlated with natural weathering effects. Newfield did obtain better results by utilizing the three machines in various sequential combinations. The rotation process, however, was slow and cumbersome. Additionally, it was not able to duplicate the extreme corrosive effect of simultaneous exposure to ultraviolet light and condensation which Newfield had observed in the weather conditions of the San Francisco Bay area. Consequently, Newfield constructed a prototype of the machine covered by the patent in issue. His purpose in this endeavor was to design a single device which would expose coated test panels to both ultraviolet light and condensation and accomplish exposure to these two forces alternatively either in separate cycles or simultaneously.

Newfield claimed that the ability of the prototype and the patented apparatus to simultaneously combine exposure to condensation and ultraviolet light was unique. The record does not refute this. The subsequent judicial determination that the subject matter of each patent claim was obvious to a person of ordinary skill in the art lends little support to any contention of fraud in the basic representation of inventiveness.

Newfield was represented by and relied on Navy patent attorneys throughout the patent application process. Although Newfield on his own initiative submitted a patent rights questionnaire and an invention disclosure form to the Navy while he was employed at Mare Island, it was a Navy patent attorney who broached the subject of a patent application. The attorney, Paul Critchlow, encountered some difficulty in locating Newfield because the latter had terminated his employment with the Navy and changed his address. When he was finally able to contact Newfield, Critch-low stated that he wanted to file a patent application. The entire patent application procedure was handled by Navy patent attorneys and all communications between these attorneys and Newfield were in the form of written correspondence. Newfield’s patent granted the United States a royalty-free license to manufacture and use the patented device.

Certainly these facts are not illustrative of the typical attorney-client relationship in which an attorney is both a faithful advocate whose loyalty to his client is undiluted by the interests of others and an objective counselor whose advice warns of any legal pitfalls which might beset the client. During the patent application process, Newfield was represented by attorneys whose loyalty to him was diluted because of their positions as government attorneys. Even though both Newfield and the government had a mutual interest in the issuance of a patent, the government was not faced with the same risks as a patent applicant. As a consequence, New-field did not have the benefit of interviews and personal contact with counsel whose sole concern was analysis of the facts from the viewpoint of a patent applicant and whose advice could have averted the legal problems raised in this litigation. Although Newfield cannot avoid all responsibility for the acts of the Navy attorneys, this atypical attorney-client relationship illuminates facts which otherwise might indicate deceptive conduct and is relevant in determining whether the instant case is an exceptional one under 35 U.S.C. § 285.

The trial court indicated that deficiencies in the patent application were attributable to the Navy and its lawyers and that defendant did not knowingly participate in any conduct intended to deceive the Patent Office.

The court further stated that “under the circumstances indicated by the record” defendant should not be considered knowledgeable of the intricacies of patent law, nor imputed to be so, and had obtained the patent “by means which appeared proper and correct under the circumstances.” Although these expressed views by the trial court were not entered as formal findings, they suffice to show a basis for the court’s refusal to allow recovery of attorney fees.

All other contentions made by either plaintiff or defendant have been considered and determined to be without dis-positive merit. The judgment is affirmed.

      . Neither the Salt Fog Cabinet nor the Cleveland Humidity Cabinet exposes coated test panels to ultraviolet light. Another prominent weathering tester, the Golden Gate Cabinet, applies only ultraviolet light. The Atlas Weather-Ometer accomplishes exposure to ultraviolet light and condensation in separate cycles. The evidence was inconclusive regarding the ability of this machine to simultaneously expose test panels to these two forces. The documentary evidence neither established nor ruled out the possibility of concurrent exposure in the Atlas Weather-Ometer. Certain testimony, however, tended to negate the possibility of simultaneous exposure because the relative humidity would always be too low to cause condensation during the period of exposure to light. Additionally, the testimony differentiated the process of condensation from the mere application of water and further emphasized the corrosive effect of condensation. Moreover, even though the district court found that a publication printed prior to New-field’s invention discussed simultaneous application of water and ultraviolet light and that the Atlas Weather-Ometer simultaneously exposed test panels to humidity and ultraviolet light, the court made no finding with respect to the prior art’s simultaneous application of condensation and ultraviolet light.


author: INGRAHAM, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Curtis Leroy LOVE and Alto Oglesby, Defendants-Appellants.
    No. 71-2393.
    United States Court of Appeals, Fifth Circuit.
    July 23, 1973.

      Curtis Leroy Love, pro. se.
    Fletcher N. Baldwin, Jr., University of Fla., Gainesville, Fla. (Court Appointed), for Oglesby.
    John L. Briggs, U. S. Atty., Alan C. Todd, Asst. U. S. Atty., Orlando, Fla., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and TUTTLE and INGRAHAM, Circuit Judges.
   INGRAHAM, Circuit Judge:

Labor problems between Overland Hauling Company and Teamsters Local 385 are not new to this court. See NLRB v. Overland Hauling, Inc., 461 F.2d 944 (5th Cir., 1972). The instant criminal case grows out of an incident of violence during a 1969 labor dispute between Teamster Local 385 and Overland Hauling. The issues on this appeal arise from convictions for violation of 18 U.S.C. § 844(i) and 26 U.S.C. § 5861(d) and present questions of constitutional dimension, the resolution of which require a detailed recitation of facts.

Overland Hauling’s Jacksonville, Florida terminal had been on strike for several weeks when its management became concerned for plant security. Its urgings and some underground rumblings of the violent eruption to come brought federal, state and local law enforcement officials to the Overland terminal. A twenty-four hour stake out of the terminal began.

On April 16, 1971, at approximately 10:30 P.M. the waiting officers saw a car approach an isolated area of the Overland Terminal — a spot where the main building was also close to the road. As the ear slowed to a stop the officers observed a big man jump from the passenger side of the car and lob a package trailing sparks onto the roof. The observing agents quickly radioed what they had seen to other agents in cars patrolling the access roads to the terminal. Even as the suspect car pulled away from the building, federal, state and local units were converging. They stopped the car containing defendants Love and Oglesby which had then traveled less than two-tenths of a mile from the building. The defendants were under arrest within sixty seconds of the bomb being tossed.

On radio confirmation of the bombing other agents began to clear the Overland Hauling terminal. The principal agent on the scene warned the occupants of the building by firing his carbine several times and by shouting. The bomb exploded some five minutes after it was tossed, causing property damage but without loss of life or personal injury. Three members of the Teamsters Local 385 on picket line duty at the time of the blast were stopped and searched. After having been detained for some thirty minutes, they were released to continue picketing. It is undisputed in the record that these pickets were stopped and frisked solely as a precaution against further acts of violence and not because they were suspects to the bombing itself.

Love and Oglesby were taken to the local police station where their hands were swabbed with an acetone solution and the swabs preserved for chemical analysis. Their clothing was also searched and crumbs removed from the pockets. The time was approximately midnight. At the arraignment the following morning they appeared with retained counsel. On counsel’s learning of the swabbings, the attorney procured the services of a chemical analyst. The chemistry expert made his presence in the case known to police laboratory officials.

Tests were conducted more than ten days after the arrests and confirmed the presence of nitrate on defendants’ hands, as well as traces of straight dynamite in their clothing. The material on the acetone swabs was consumed in the testing process.

Defendants sought discovery of the government’s scientific evidence under Federal Rules of Criminal Procedure 16(a). The government agreed not only to disclose the report of the acetone tests, but permitted the defendants’ expert to examine the surviving samples of straight dynamite, perform his own tests on the material and examine the government’s scientific methodology of the acetone tests. Due to the consumption of the acetone swabbings, the defendants’ expert was unable to duplicate tests of the swabbings of defendants’ hands.

At trial the prosecution introduced the chief chemist, who testified to the procedures used on the swabs and other trace materials. His testimony showed the presence of nitrate on the hands and straight dynamite in the pockets and on the clothing of the defendants. He also testified that residual traces of straight dynamite were found at the Overland Hauling bomb site. Defendants testified that they worked as truck drivers on a job using nitrate fertilizer, and defendants’ expert testified that the nitrate found by the acetone swabbings could have been from that source. No rebuttal of the straight dynamite found in and on the clothing was presented. Indeed, the defendants’ expert concurred in the prosecution’s expert witness’s analysis of the material he was able to test and the procedures used in the testing of the acetone.

We turn first to appellant Love. By letter to the clerk of this court dated February 8, 1972, Love elected to proceed in this appeal without counsel even though he was notified that counsel would be appointed by the court to represent him on appeal. Love subsequently failed to file an appellate brief. Since Love is not proceeding in forma pauperis, it is therefore appropriate that his appeal be dismissed pursuant to this court’s Local Rule 9(b) for failure to prosecute his appeal, and it is so ordered.

Appellant Oglesby has raised the following issues on appeal: (1) that he was entitled to the presence of counsel when the acetone swabs were taken; (2) that his expert witness should have been notified when the swabs were tested because there was a reasonable expectation that the tested material would be consumed in the process; and (3) that the district court erred in imposing maximum consecutive sentences without disclosure of any part of the pre-sen-tencing report.

Oglesby’s Sixth Amendment contention proceeds on the assertion from United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), that counsel is required at critical stages of the criminal process, and, in his view, what could be more critical than the removal of swabbings. There is no doubt that defendants were validly arrested and that the swabbings were a search and seizure incident to that arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). But the presence of counsel at the taking of the samples was not constitutionally required. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). In considering whether Fourth and Sixth Amendment rights were violated by admission into evidence against a defendant of a palm print taken in the absence of counsel, but after counsel had been requested, we said:

“The record reveals, and Appellant admits, that he was legally in the custody of law enforcement officials stemming from arrest on another unrelated matter. It is undisputed, then, that the custodial officers were well within their authority, and not without Appellant’s rights, to require that he submit to fingerprinting independent of the presence or absence of warnings to accused of his rights to counsel and to remain silent. United States v. Gibson, 5 Cir., 1971, 444 F.2d 275. Neither can it be argued that the Fourth Amendment erected any obstacle to the taking Appellant’s fingerprint exemplars under the facts present here. The obtaining of physical evidence from a person involved a potential Fourth Amendment violation at two different levels — the ‘seizure’ of the ‘person’ necessary to bring him into contact with government agents and the subsequent search for and seizure of the evidence. United States v. Dionisio, 1973, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 [1973], Here the fact Appellant was legally under arrest at the time his palmprint exemplar was taken removes the first level of potential Fourth Amendment infringement. As for the second level, the Supreme Court noted in Davis v. Mississippi, 1969, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed. 676, that while the seizure of the person is clearly subject to Fourth Amendment ‘reasonableness’, the taking of physical evidence in the nature of fingerprinting, or as here palmprints, ‘involves none of the probing into an individuals’ private life and thoughts that marks an interrogation or search.’
“Appellant, upon being apprised of his constitutional rights, properly invoked his Sixth Amendment right to have counsel present before further questioning. The record shows that the interrogation ceased at that point. The taking of Appellant’s palmprints in the absence of counsel did not violate his constitutional rights. We have written that ‘the taking of the fingerprints exemplar is not such a critical stage of the criminal proceedings as would entitle Appellant to the assistance of counsel.’ Pearson v. United States, 5 Cir., 1968, 389 F.2d 684, 686. Furthermore, we think the present appeal analogous to one heard by the D.C. Circuit where they wrote that ‘[N]ot only is the taking of the exemplars not a critical stage of the proceedings entitling an accused to the assistance of counsel, but appellant has pointed to no function counsel could perform, were he present, save the futile advice not to give the sample.’ Lewis v. United States, 1967, 127 U.S.App.D.C. 269, 382 F.2d 817, 819.”

United States v. Sanders, 477 F.2d 112 (5th Cir., 1973). The reasoning of Sanders was re-enforced by the Supreme Court’s recent decision in Cupp v. Murphy, supra:

“The inquiry does not end here, however, because Murphy was subjected to a search as well as a seizure of his person. Unlike the fingerprinting in Davis, the voice exemplar obtained in United States v. Dionisio, supra, or the handwriting exemplar obtained in United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99, the search of the respondent’s fingernails went beyond mere ‘physical characteristics constantly exposed to the public,’ United States v. Dionisio, supra, and constituted the type of ‘severe though brief intrusion upon cherished personal security’ that is subject to constitutional scrutiny. Terry v. Ohio, supra, 392 U.S. 1, at 24-25, 88 S.Ct. 1868 at 1882, 20 L.Ed.2d 889.
“We believe this search was constitutionally permissible under the principles of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. Chimel stands in a long line of cases recognizing an exception to the warrant requirement when a search is incident to a valid arrest. Id., at 755-762, 89 S.Ct. 2034, 2035-2039. The basis for this exception is that when an arrest is made, it is reasonable for a police officer to expect the arrestee to use any weapons he may have and to attempt to destroy any incriminating evidence then in his possession. Id., at 762-763, 89 S.Ct. 2034, at 2039, 2040. The Court recognized in Chimel that the scope of a warrantless search must be commensurate with the rationale that excepts the search from the warrant requirement. Thus a warrantless search incident to arrest, the Court held in Chimel, must be limited to the area ‘into which an arrestee might reach.’ 395 U.S., at 763, 89 S.Ct. at 2040.”
“At the time Murphy was being detained at the station house, he was obviously aware of the detectives’ suspicions. Though he did not have the full warning of official suspicion that a formal arrest provides, Murphy was sufficiently apprised of his suspected role in the crime to motivate him- to attempt to destroy what evidence he could without attracting further attention. Testimony at trial indicated that after he refused to consent to the taking of fingernail samples, he put his hands behind his back and appeared to rub them together. He then put his hands in his pockets, and a ‘metallic sound, such as keys or change rattling’ was heard. The rationale of Chimel, in these circumstances, justified the police in subjecting him to the very limited search necessary to preserve the highly evanescent evidence they found under his fingernails, cf. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908.

The nitrate on Oglesby’s hands was even more likely to vanish than the materials lodged under Murphy’s fingernails, or the alcohol in Schmerber’s blood. The first vigorous scrubbing of the hands would have destroyed Murphy’s material, but merely rubbing the hands would have destroyed the nitrate oils. Moreover, since Oglesby could testify whether the swabbings were actually taken and sealed, counsel could perform no service justifying invocation of constitutional principles. Cf. Wade, supra; United States v. Sanders, supra. No Fifth Amendment challenge has been raised. Cf. Cupp v. Murphy, supra, opinions of Mr. Justice Marshall concurring and Mr. Justice Douglas dissenting in part; but see United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); Holt v. United States, 218 U.S. 245, 252-253, 31 S.Ct. 2, 54 L.Ed. 1021 (1910); Schmerber v. California, supra; Cassady v. United States, 410 F.2d 379 (5th Cir., 1969); Napolitano v. United States, 340 F.2d 313 (1st Cir., 1965). See also United States v. Ryan, 478 F.2d 1008 at 1012 (5th Cir., 1973).

Appellant next contends that the prosecution’s failure to assure the presence of his expert at the chemical analysis of the acetone swabbings constituted prosecutorial suppression of evidence and deprived him of the effective assistance of counsel in confronting the prosecution’s evidence of nitrate which the analysis disclosed. The remedy for the actions should be, according to Oglesby, the exclusion of the result of the tests. The basis for Oglesby’s argument is that the prosecution reasonably expected the swabbings to be consumed in the testing process. Oglesby’s attempt to raise confrontation clause problems is foiled by this court’s en bane decision in United States v. Williams, 447 F.2d 1285 (5th Cir., 1971), rev’g 424 F.2d 344 (1970). The court was there faced with a problem resulting from “[t]he admission of expert witness testimony based upon records not themselves introduced in evidence . . . .’’Id. at 1287. After an extensive analysis of the right of confrontation issue the court concluded that so long as the expert is available for cross-examination and there is “ample opportunity for the defense to probe the authenticity and accuracy of the sources relied upon by [the expert] and the reasoning processes by which he arrived at his [decision],” Id. at 1289 then the admission of the expert’s testimony does not create a confrontation problem. Even though the defendant’s expert should have been permitted to participate in the analysis of the swab-bings, his absence does not require us to serve the conviction because the standard established by Williams was fulfilled here.

Our decision in this regard is supported by the Ninth Circuit’s decision in United States v. Sewar, 468 F.2d 236 (1972), cert. den. 410 U.S. 916, 93 S.Ct. 972, 35 L.Ed2d 278 (1973). Commenting on the admission of expert testimony relating to the concentration of alcohol found in a defendant’s blood when the blood sample had been inadvertently destroyed, the court stated:

“. . . Not every blunder by investigators should result in the exclusion of relevant competent, important evidence. While we would be naif to believe that no investigator would ever behave in the manner conjured up by the trial judge, we cannot administer justice upon the assumption that all or even most investigators will behave in that manner.
“This case is governed by United States v. Augenblick, 1969, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537. It. involved the unexplained loss of a tape on which was recorded a conversation between the accused and an investigator. The tape had been unaccountably lost and so could not be used in cross-examining the investigator, who testified about the conversation. The conviction was by a military court, and the question was raised in a subsequent action for pay, in which Augen-blick claimed that the conviction was constitutionally infirm. The Court of Claims held that the failure to produce the tape denied the accused due process of law. The Supreme Court reversed, in a unanimous opinion by Mr. Justice Douglas, in which he emphasized that the tapes were not suppressed, and held that the question was not one of constitutional dimension.
“Augenblick has been followed in United States v. Augello, 2 Cir., 1971, 451 F.2d 1167, where the police deliberately destroyed a taped recording of a conversation between the defendant and his victim because it was “unintelligible.” Destruction of the tape was held not to require exclusion of the testimony of police officers, who also heard the conversation. Augenblick was also followed in United States v. Shafer, 7 Cir., 1971, 445 F.2d 579, 582, where the government destroyed fuses and powder taken from the defendant because the items were thought dangerous to public buildings.
“In United States v. Bryant, 1971, 142 U.S.App.D.C. 132, 439 F.2d 642, heavily relied upon by Sewar, the court put the issue as ‘whether intentional non-preservation by investigators — as opposed to bad faith destruction or prosecutorial withholding — of discoverable evidence amounts to illegal suppression.’ Bryant, supra, at 644. Plainly, and without going further into Bryant, that case is distinguishable from the present case, where the non-preservation was unintentional.”

468 F.2d 237-238.

In the context of the Jencks Act, 18 U.S.C. § 3500, the Supreme Court has indicated that the circumstances of the destruction of the evidence or material is highly important. It is also made clear that a good faith loss would not invoke the statutory sanctions of exclusion of the evidence. Compare United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969) with Killian v. United States, 368 U.S. 231, 81 S.Ct. 810, 5 L.Ed. 690 (1961), and Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961). Under the circumstances indicated here, it is evident that the preferred procedure under Rule 16, F.R.Crim.P. would be to permit the defendant’s expert to participate in the evaluation of the acetone. It is likewise clear that the destruction of the acetone followed as a consequence of the scientific method and was not the product of governmental suppression. Nevertheless, the policy favoring disclosure indicates that in future cases participation should be allowed. Compare Dennis v. United States, 384 U.S. 855, 870-875, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966).

Finally, Oglesby asks this court to engage in two exercises not generally undertaken by appellate courts. First, he asks that this court directly review the imposition of maximum consecutive sentences for the two charged counts; and, secondly, that the sentence be vacated and the cause remanded for resen-tencing due to the district court’s refusal to reveal any portion of a pre-sen-tence investigation and report. We decline to accept either of these suggestions. A motion for reduction of sentence may be presented to the district court pursuant to Rule 35, F.R.Crim.P.

Oglesby’s remaining contentions are without merit. We therefore Affirm his conviction. Love’s appeal is Dismissed pursuant to Local Rule 9(b).

      . (i) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not more than ten years or fined not more than $10,000, or both; and if personal injury results shall be imprisoned for not more than twenty years or fined not more than $20,000, or both; and if death results shall also be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment as provided in section 34 of this title.

      . It shall be unlawful for any person— (d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.

      . (b) Failure to Prosecute. When an appellant in either a docketed or non-docketed appeal, other than an appeal in forma pauperis from a judgment of conviction or from the denial of a petition for writ of habeas corpus or denial of a petition filed under 28 U.S.C. § 2255, fails to comply with the rules of this Court requiring the processing of such appeal to a hearing, the Clerk shall enter an order dismissing said appeal for want of prosecution, and shall issue a certified copy thereof to the Clerk of the District Court as and for the mandate. In no case shall the appellant be entitled to remedy his default after same shall have been dismissed under this rule, unless by order of this Court.

        . Writing for the en banc court on the confrontation clause question, Judge Morgan stated:
      “The first question before the court is whether the admission of Jeffrey’s expert witness testimony violated Williams’ Sixth Amendment right of confrontation. In its per curiam opinion denying the motion for rehearing, the original panel of this court relied on California v. Green, supra, [399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)] to support its decision that the admission of Jeffrey’s testimony violated the confrontation clause. This reliance by the panel on Green was misconceived. Indeed, Green makes it clear that there is no Sixth Amendment obstacle to the admission of Jeffrey’s testimony.
      “In Green, the Supreme Court held that the admission of the prior inconsistent statement of a witness as substantive evidence in a criminal case did not violate the confrontation rights of the accused so long as the witness was present at trial and available for cross-examination. The relevance of Green to the case at bar is that it represents the most recent effort by the Court to elaborate the nature of the right of confrontation. In its opinion, the Court observed that:
      “Our own decisions seem to have recognized at an early date that it is this literal right to ‘confront’ the witness at. the time of the trial that forms the core of the values furthered by the Confrontation Clause * * *
      399 U.S. at 157, 90 S.Ct. at 1934, 26 L.Ed.2d at 496.
      In support of this statement, the Court quoted with approval from Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39 L.Ed. 409, 411 (1895):
      “The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. * * *

        Green, then, makes it clear that the confrontation guarantee focuses upon ‘the right of the accused to confront and probe each of his accusers — a narrow adversary activity’.
      “Given this view of the confrontation clause, it is evident that the admission of Jeffrey’s testimony did not violate that guarantee. Jeffrey was personally available for cross-examination by the appellant. There was ample opportunity for the defense to probe the authenticity and accuracy of the sources relied upon by Jeffrey and the reasoning processes by which he arrived at his valuation. In light of the reasoning in Green, we conclude that Jeffrey’s presence at the trial and his availability for cross-examination satisfied the constitutional right of confrontation regardless of whether his testimony fell within one of the traditional exceptions to the hearsay rule. Had the Government attempted to introduce the appraisal reports in evidence without calling the expert who had prepared them and offering an opportunity for cross-examination, then Williams’ right of confrontation would have been infringed, but this is not the case at bar.”
      447 F.2d at 1289-1290.


author: AINSWORTH, Circuit Judge:

text:
    Aubrey D. HANSON d/b/a Hanson Paint & Glass Company, Plaintiff-Appellee, v. PITTSBURGH PLATE GLASS INDUSTRIES, INC., Formerly Pittsburgh Plate Glass Company, Defendant-Appellant.
    No. 72-2136.
    United States Court of Appeals, Fifth Circuit.
    June 25, 1973.
    Rehearing Denied Aug. 14, 1973.

      Tom S. Milam, Lubbock, Tex., Smead, Roberts, Harbour, Smith, Harris & French, Longview, Tex., John P. S. O’Connor, Cyrus V. Anderson, Pittsburgh, Pa., for defendant-appellant.
    Scott Baldwin, Carl R. Roth, Marshall, Tex., for plaintiff-appellee.
    Before GOLDBERG, AINSWORTH and INGRAHAM, Circuit Judges.
   AINSWORTH, Circuit Judge:

In this Robinson-Patman price discrimination action, defendant Pittsburgh Plate Glass Company appeals from a judgment in favor of plaintiff Aubrey D. Hanson. We hold that the district court erred in denying defendant’s motions for a directed verdict and for judgment notwithstanding the verdict, and reverse.

Hanson entered the glass industry at the age of 22 when he worked for PPG as a glass cutter in Shreveport, Louisiana, in 1927. Three years later he became a PPG salesman in Northwestern Louisiana, Eastern Texas, Southeastern Oklahoma, and Southwestern Arkansas. In 1946, he established an independent glass retail business in Marshall, Texas. The business máde an average profit of $12,892 for the years 1948 to 1955, but then sustained losses in each succeeding year except for small profits of $613 in 1958 and $204 in 1964.

Hanson’s financial problems began when a new glass retailer, Martex Glass Company, opened in 1952 as a direct competitor in Marshall. Martex became a recognized distributor of Shatterproof Glass Corporation, entitling it to greater discounts than were generally available to Hanson. For example, Shatterproof offered its auto glass to Martex at a discount of about 68 per cent. PPG offered auto glass to Hanson at a discount of about 55 per cent. Another glass distributor, Safelite Glass Corporation, undersold PPG by offering auto glass to all retailers at a discount of about 60 per cent. When Hanson’s business began to decrease, PPG reassessed the situation in an effort to rebuild its volume of sales. PPG decided to approach Martex and offer it the lowest PPG published price, namely, the discount currently available in Marshall only to Hanson. But Martex declined and explained that the glass could be purchased at a lower price from other sources. As a result, on May 4, 1964, the PPG district manager in Shreveport authorized its salesman to “meet the prices being quoted by Safelite Glass Corporation of Dallas, Texas, to Martex Glass Company of Marshall, Texas.” However, PPG continued to follow its own published list in selling to Hanson. Hanson continued to buy from PPG but purchased most of his inventory from Safelite and other suppliers.

Hanson’s debts with various creditors increased as his business declined. He was indebted to the bank, did not pay his rent for five or six months, and postdated his checks. After Hanson fell behind on his account for an amount in excess of $1,000, Safelite discontinued its business with him in 1965. By 1968, Hanson also owed substantial sums to his other suppliers, PPG and Binswan-ger Glass Company.

Hanson closed his business and then filed suit against PPG on April 10, 1968, alleging that defendant treated Hanson’s competitors more favorably than it treated Hanson, thus violating section 2 of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13 (1971). Plaintiff alleged that his “flourishing and profitable business” was destroyed and that he lost past and future profits estimated at $220,000. Plaintiff sought treble damages and reasonable attorneys’ fees as provided by section 4 of the Clayton Act, 15 U.S.C. § 15 (1971). Defendant counterclaimed on Hanson’s overdue note dated February 3, 1965, payable to PPG for $23,983.59 plus interest and attorneys’ fees. The district court granted summary judgment on PPG’s counterclaim for $29,111.45, together with $7,277.86 as attorneys’ fees.

Plaintiff’s claim was tried before a jury. After a trial that lasted several days, with testimony of numerous witnesses and receipt in evidence of over 10,000 exhibits, defendant moved for a directed verdict under Rule 50(a), Federal Rules of Civil Procedure. The district judge denied the motion, and the jury returned a verdict in favor of Hanson for $148,000. PPG filed a motion for judgment notwithstanding the verdict under Rule 50(b), which was also denied. The district judge trebled the verdict of $148,000 to a total of $444,000, and added an allowance of $80,000 for attorneys’ fees. Only PPG appeals so the propriety of the summary judgment against Hanson on the counterclaim is not contested.

Plaintiff grounds his action under the provisions of section 2(a) of the Clayton Act, as amended by the Robinson-Pat-man Act, which forbids “any person to discriminate in price between different purchasers of commodities of like grade and quality . where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them.” 15 U.S.C. § 13(a) (1971). There are three possible defenses available to defendant PPG under the circumstances of this case. First, section 2(a) expressly permits justification for price differentials due to “differing methods” of manufacture. Second, section 2(a) permits another cost justification when “differing . . . quantities” are purchased. Third, section 2(b) provides a defense if the seller lowered its price “in good faith to meet an equally low price of a competitor.”

In assessing whether the defendant carried its burden of defending its price differentials, see Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 44-45, 68 S.Ct. 822, 827, 92 L.Ed. 1196 (1948), to such an extent as to warrant a directed verdict, we are guided by the standard of review enunciated in Boeing Company v. Shipman, 5 Cir., 1969, 411 F.2d 365, 374 (en banc):

On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case —but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n. o. v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.

We find that there is no conflict in substantial evidence and, accordingly, we are compelled to reverse.

Aside from a full transcript of the trial, together with all the exhibits, we have the benefit of a well-organized presentation of the facts submitted in the briefs of both parties which was not available to the jury or district court. Thus we have given unusually close and careful attention to the record herein.

During the trial plaintiff introduced numerous exhibits in an effort to show that the prices charged by PPG to Hanson were higher than those charged by PPG to competitors of Hanson. Plaintiff’s counsel showed his exhibits to the jury on a projector, thereby saving the time of handing each exhibit from juror to juror. Plaintiff’s counsel then interrupted the review of exhibits with a series of questions to Hanson about the history of Hanson’s dealings with his customers. The defense responded with its own testimony, price lists, and invoices of sales by PPG’s competitors. After studying the record we believe it was highly unlikely that the jury or district judge could have fully assimilated the material as presented. During oral argument of this case on appeal, we requested that counsel for plaintiff make a list in a supplemental brief of each transaction supporting his allegations of price discrimination. Counsel for defendant then agreed to review each transaction and justify any price differences between PPG’s invoices to Hanson and to his competitors in a reply brief.

Plaintiff’s counsel prepared a “Chart of Comparable Sales” to show in PPG’s sales to Hanson the invoice number, date, item, and percentage of discount, which was then compared to discounts PPG gave to Hanson’s competitors. Defendant responded to each instance of alleged price discrimination by producing folders of invoices categorically arranged by type of item sold. In addition, defendant supplied summaries by date of the price lists used by PPG and its competitors, such as Safelite, Auto-glass Company, and Carlite.

After reviewing this material we find that the three defenses justify all of the instances of price differentials except a few which are de minimis.

We illustrate how each defense applies to certain transactions as follows: As to the first defense pertaining to price differentials due to “differing methods” of manufacture, the documentation shows that sales listed by Hanson in support of his contention of price'differentials actually involved items where there was justification for the difference based on higher cost of manufacture. Hanson thus lists a purchase from PPG dated April 15, 1964, of %-inch Factrolite at a price of 62 cents per foot and Geldmeier’s purchase from PPG at 35 cents per foot. But reference to the invoices shows that Hanson purchased specially cut size whereas Geldmeier purchased a standard stock size. Both sales by PPG to Hanson and to Geld-meier followed PPG’s published price. The different price reflects the added cost of specially cutting the items and is therefore justified under section 2(a). See Sylvania Elec. Prod., Inc., 51 F.T.C. 282 (1954), reprinted in 2 S. Oppenheim & G. Weston, The Lawyers’ Robinson-Patman Act Sourcebook 921 (1971). See generally P. Areeda, Antitrust Analysis 685 (1967); E. Kintner, An Antitrust Primer 68-70 (1964); F. Rowe, Price Discrimination Under the Robinson-Patman Act 281-82 (1962).

As to the second defense which related to cost justification when differing quantities are purchased, Hanson compared PPG sales without indicating that Hanson bought less on these occasions than his competitor purchased from PPG. Volume discounts are typical for this industry. Any lower price given to Hanson’s competitor followed a price list granting volume discounts. As an illustration, Hanson’s chart compared his purchase of a ^-inch thick mirror on Juné 18, 1965, with Magnolia’s purchase on January 20, 1965, demonstrating that PPG charged Hanson $1.10 per square foot and Magnolia $1 per square foot. Yet the chart failed to compare the volume involved in each purchase. Hanson purchased one mirror of about 41 square feet whereas Magnolia purchased eleven mirrors totaling 429 square feet. PPG’s published price list shows a charge of $1.10 per square foot for a purchase of less than 400 square feet, a charge of $1 per square foot for a purchase of more than 400 square feet, and a charge of 950 per square foot for a purchase of 850 square feet. What PPG charged Hanson and Magnolia conforms exactly to the price list. Magnolia got a lower price by purchasing a sufficient quantity to be eligible for a 100 per square foot savings. We recognize the difficulty of justifying quantity discounts. See United States v. Borden Co., 370 U.S. 460, 82 S.Ct. 1309, 8 L.Ed.2d 627 (1962); Automatic Canteen Co. v. Federal Trade Comm’n, 346 U.S. 61, 68, 73 S.Ct. 1017, 1021-1022, 97 L.Ed. 1454 (1953). See generally P. Areeda, Antitrust Analysis 686 (1967); F. Rowe, Price Discrimination, ch. 10 (1962); Lovett, A Crossroads for the Robinson-Patman Act, 45 Tul.L.Rev. 1, 11-14 (1970). But this case differs in principle from the leading case of Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 42, 68 S.Ct. 822, 826, 92 L.Ed. 1196 (1948), where the quantity discounts were “equally available to all, but functionally they are not.” PPG’s price schedules did not require a purchase of such large quantities as to make the discounts functionally unavailable to Hanson. The discounts were graduated with such small increments that they appear to reflect only the differences in the cost of manufacturing, selling, and delivering items in larger volume.

As to the third defense relating to price differentials to meet competition, in the instances where PPG gave some customers a price differing from the price available to Hanson, PPG met the price offered to the customers by competitors of PPG. Thus PPG followed its own published price list in sales of windshields to Hanson but followed Safelite’s published price list in sales of windshields to Martex.

The meeting of competition defense provided in section 2(b) has been interpreted to be an absolute defense, Standard Oil Co. v. Federal Trade Comm’n, 340 U.S. 231, 71 S.Ct. 240, 95 L.Ed. 239 (1951); Jones v. Borden Co., 5 Cir., 1970, 430 F.2d 568, 572, and applies despite the incidence of damage to nonfavored purchasers. Federal Trade Comm’n v. Sun Oil Co., 371 U.S. 505, 519-520, 83 S.Ct. 358, 367, 9 L.Ed.2d 466 (1963); see C. Austin, Price Discrimination 97 (1959). We believe that a “reasonable and prudent” man would conclude that PPG adopted Safelite’s price list as a reasonable method of meeting the lower price of its competitor, thereby satisfying the test enunciated in Callaway Mills Co. v. Federal Trade Comm’n, 5 Cir., 1966, 362 F.2d 435, 442. See also Jones v. Borden Co., 5 Cir., 1970, 430 F.2d 568, 572; Surprise Brassiere Co. v. Federal Trade Comm’n, 5 Cir., 1969, 406 F.2d 711, 715.

Hanson’s counsel argued to the jury, however, that PPG did not verify its competitors’ offers until after the lawsuit was filed. We note in the record, however, several letters between PPG’s salesman and district manager discussing the need to meet competition from Safelite. There is also other evidence to confirm that PPG acted in good faith to meet competition. Safelite made its prices available to many retailers in the area, so its prices were not secret. A representative of Hanson’s competitor, Ray Lawson of Martex, testified that the lower prices they received from PPG came after a discussion of prices being offered by PPG’s competitors.

Hanson contends that it was indicative of PPG’s “predatory intent” that PPG called on Hanson’s customers and offered them greater discounts than were given to Hanson. But these discounts conform to the competitive prices offered by PPG’s competition. Furthermore, the customers Hanson mentioned were volume purchasers, such as automobile dealers, who reasonably might be expected to deal directly with a manufacturer. When Hanson resigned from PPG in 1946 to establish an independent business, he did not retain an exclusive right to deal with customers in the area of Eastern Texas. He had been the PPG salesman in the area prior to 1946, and, after he left, PPG replaced him with another salesman. Even though there may be some doubt whether the defense of meeting competition is available when used to gain new customers as opposed to retaining old ones, no such distinction is apparent in the statute, and accordingly we follow the reasoning of the decision by the Seventh Circuit in Sunshine Biscuits, Inc. v. F.T.C., 1952, 306 F.2d 48, and find that PPG engaged in reasonable competitive tactics. See generally Hampton v. Graff Vending Co., 5 Cir., 1973, 478 F.2d 527, 537.

Our review of the case convinces us that there is no conflict in substantial evidence, and that a verdict should have been directed for defendant. PPG does not dispute plaintiff’s evidence, but relies on the defenses provided for by the Clayton Act itself (as amended). The differences in prices charged by PPG are in each instance fully supported by one of these defenses and by evidence in which there is no substantial conflict.

Finally, the evidence does not support Hanson’s argument that he went out of business due to PPG’s pricing policies during the relevant period from 1964 to 1968. Hanson’s purchases from PPG during the four-year period never exceeded 26 per cent of his total purchases in any single calendar year and were as low as 1 per cent in one year. These purchases are summarized as follows:

Year
Hanson’s Purchases From All Suppliers
Hanson’s Purchases From PPG
Hanson’s Purchases From PPG As Percentage of Hanson’s Purchases From All Suppliers
1968 $ 6,777 $ 442 6 %
1967 5,227 39 1 %
1966 7,626 192 2 %
1965 18,795 3,493 18 %
1964 17,589 4,573 26 %
(Apr.Dec.)

Nevertheless, competitive injury may be inferred when one set of customers buys at substantially lower prices than other customers. Federal Trade Comm’n v. Morton Salt Co., 334 U.S. 37, 47, 68 S.Ct. 822, 828-829, 92 L.Ed. 1196 (1948). In the present case, any inferred competitive injury is negated by the fact that Hanson had available comparable products from other suppliers at prices equivalent to the prices PPG gave to Hanson’s competitors. See Admiral Corp., FTC Dkt., CCH Trade Reg. Rep. ¶ 17,230, p. 22,304 at p. 22,309 (1965), reprinted in S. Oppenheim & G. Weston, The Lawyer’s Robinson-Patman Act Sourcebook 256, 262 (1971). See also Borden Co. v F.T.C., 5 Cir., 1967, 381 F.2d 175, 180.

A review of Hanson’s profits for the period 1948 through 1968 belies the conclusion that PPG drove him out of business by its pricing policies during the statutory period from 1964 to 1968. During most of the last thirteen years he consistently operated at a loss. It had been eight years prior to the start of the statutory period since Hanson made a substantial profit. His business, therefore, was not, as he contends, “flourishing and profitable” at the time PPG began giving his nearest competitor, Martex, the greater discounts.

The actual causes of Hanson’s failure appear to be the new competition after 1952, the fire that partially destroyed the building in 1963 when he had inadequate insurance to cover his loss, and Safelite’s refusal to deal with him after 1965 when he did not pay his debt. None of these causes can be attributed to the actions of PPG.

Reversed.

      . Since suit was filed, the name of the company has been changed to P.P.G. Industries, Incorporated.

      . Another problem was a fire in 1963 which destroyed part of the building Hanson rented. He did not have adequate insurance to cover his loss.

      . The defense is based on the following language in 15 U.S.O. § 13(a) (1971) :
      . Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods ... in which such commodities are to such purchasers sold or delivered ....

      . The defense is based on the following language in 15 U.S.O. § 13(a) (1971) :
      . Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing . quantities in which such commodities are to such purchasers sold or delivered.

      . “Cost justification” is a term of art frequently employed by commentators to denote section 2(a) defenses for price differentials which reflect differences in the cost of supplying different purchasers. See, e. g., P. Arecda, Antitrust Analysis 684 (1967) ; D. Baum, The Robinson-Patman Act 22 (1964) ; A. Stickells, Antitrust Laws 477-78 (1972).

      . The defense is based on the following language in 15 U.S.C. § 13(b) (1971) :
      . Provided, however, That nothing herein contained shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor.

      . This “Chart of Comparable Sales” was essentially the same as Exhibit A in plaintiff’s original appellate brief. At oral argument, after counsel for plaintiff called Exhibit A the “critical exhibit as far as plaintiff is concerned,” this Court asked, “Do you stand or fall on whether the proof in Exhibit A stands or falls?” Counsel answered, “I will come close to saying, yes sir.” Then he went on to say that the exhibit represents the “bulwark” of purchases in years 1964 and 1965 by Hanson from PPG.

      . Several sales by PPG to Binswanger Glass Company of Shreveport, Louisiana, are in the de minimis category. Bins-wanger was a competitor of PPG, so PPG had no interest in making sales in large quantities at low prices to Binswanger, thereby minimizing any potential harm to Hanson or to the public. The quantity of such sales was small, apparently only occurring as a courtesy which one distributor extended to the other when one had need of an item not in stock. These de minimis sales do not violate section 2(a), since the section applies only where “the effect of such discrimination may be substantially to lessen competition.” (Emphasis added.) See Skinner v. United States Steel Corp., 5 Cir., 1956, 233 F.2d 762, 764.

      . The importance of this factor is reflected in our recent opinion in Hampton v. Graff Vending Co., 478 F.2d 527, 537.

      . Using the examide of automobile glass earlier referred to, we note that PPG’s published price list gave discounts of the following amounts depending on the quantity of windshields purchased:
      52.60% discount for 1 part
      55.00% discount for 2 parts 56.80% discount for 3 parts
      58.00% discount for 4 to 11 parts
      59.80% discount for 12 to 23 parts
      61.00% discount for 24 or over parts
      Safelite, however, offered the following published discounts on windshields, which were greater and resulted in lower prices:
      60% discount for 1 to 2 parts
      61% discount for 3 to 5 parts
      62% discount for 6 to 23 parts
      63% discount for 24 or more parts

        To further illustrate what the proof showed, and applying the above discounts, we have examined a number of PPG sales of windshields listed in plaintiff’s brief and have added a column indicating the volume purchased, ns follows:

        Hanson Invoice. (PPG) Date Volume Discount

      01659 4/13/64 1 52.60%
      01534 4/16/64 2 55.00%
      01579 4/16/64 1 52.60%
      02079 4/22/64 1 52.60%
      04010 5/28/64 1 55.00%
      04365 6/ 4/64 2 55.00%
      06135 7/ 6/64 1 52.60%
      07625 7/31/64 1 52.60%

        Martex Invoice (PPG) Date Volume Discount

      04505 6/ 8/64 11 62.00%
      05856 6/30/64 6 62.00%
      07527 7/29/64 2 60.00%
      It is thus clear that PPG’s charges to Hanson followed the PPG published price list (shown above), and its charges to Martex met Safelite’s published price list (shown above). The only exception is an invoice to Hanson, number 04010, where PPG gave Hanson a greater discount than was warranted by the volume purchased.

      . In a case denying the defense due to inadequate efforts to verify the competitor’s prices, the Supreme Court concluded that “the statute at least requires the seller, who knowingly discriminated in price, to show the existence of facts which would lead a reasonable and prudent person to believe that the granting of a lower price would in fact meet the equally low price of a competitor.” Federal Trade Comm’n v. A. E. Staley Mfg. Co., 324 U.S. 746, 759-760, 65 S.Ct. 971, 977, 89 L.Ed. 567 (1945).

      . Hanson himself on October 1, 1904, ordered six windshields from Safelite, of which five were delivered and one back-ordered, at Safelite’s discount of 62 per cent.

      . Accord, National Dairy Prod. Corp. v. Federal Trade Comm’n, 7 Cir., 1968, 395 F.2d 517, 524 n. 3, contra, Standard Motor Prod., Inc., v. Federal Trade Comm’n, 2 Cir., 1959, 265 F.2d 674, 677. See generally 4 J. von Kalinowski, Antitrust Laws and Trade Regulation, p. 32-73 (1970) : “The better rule is that of the Seventh Circuit.”

      . According to 15 U.S.C. § 15(b) (1971), “Any action to enforce any cause of action ... of this title shall be forever barred unless commenced within four years after the cause of action accrued.” See generally A. Stickells, Antitrust Laws 644 (1972).

      . The 1948-1968 profits are as follows :

        Hanson’s

        Year Profit

        1968 (undetermined loss)
      1967 (undetermined loss)
      1966 ($4,930)
      1965 ($ 132)
      1964 $ 204
      1963 ($13,759)
      1962 ($2,128)
      1961 ($15,452)
      1960 ($6,437)
      1959 N. A.
      1958 $ 613
      1957 ($8,080)
      1956 ($2,874)
      1955 $5,437
      1954 $6,299
      1953 $13,259
      1952 $11,246
      1951 $6,568
      1950 $25,095
      1949 $21,047
      1948 $14,185