author: SCHATZ, District Judge.

text:
    UNITED STATES of America, Appellee, v. William Mirl JARBOE, Appellant.
    No. 74-1557.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 11, 1974.
    Decided March 24, 1975.
    Rehearing Denied April 14, 1975.

      Lane D. Bauer, Kansas City, Mo., for appellant.
    J. Whitfield Moody, Asst. U. S. Atty., Kansas .City, Mo., for appellee.
    Before ROSS and STEPHENSON, Circuit Judges, and SCHATZ, District Judge.

       ALBERT G. SCHATZ, United States District Judge, District of Nebraska, sitting by designation.

   SCHATZ, District Judge.

William Mirl Jarboe was found guilty by a jury of aiding and abetting the commission of a bank robbery, in violation of 18 U.S.C. §§ 2 and 2113(a), and he brings this appeal alleging the trial judge gave erroneous and prejudicial instructions to the jury.

In August of 1972, the defendant Jar-boe was paroled from the Oklahoma State Penitentiary where he had been acquainted with one James Al\ -n Klein. In September, 1972, Klein escaped from prison and contacted the defendant in Louisiana, where he was working. The defendant and Klein later met in Oklahoma and traveled together to Missouri during which time Klein told the defendant of a successful bank robbery he had accomplished in Dallas, Texas, and an unsuccessful bank robbery he and another man had attempted in San Diego, California. On October 20, 1972, Klein entered a bank in Independence, Missouri, and took money at gun point from one of the tellers. Klein fled from the bank on foot to a location about two blocks away where the defendant was waiting in a car. Klein entered the car with the money and the defendant drove away. They returned to the motel in Independence in which they were staying, disposed of the car, and later that same day they traveled to Topeka, Kansas, and ultimately to San Antonio, Texas. There Klein gave the defendant $500 and the two men parted company. Klein and Jarboe were later apprehended separately and an indictment was returned against both men charging each with two counts of bank robbery and one count of interstate transportation of a stolen motor vehicle. Klein pled guilty to all three counts and the trial proceeded against the defendant Jarboe alone. The government’s case against the defendant was based on the aider and abetter statute, 18 U.S.C. § 2, since there was no evidence that he entered the bank while the money was being stolen. Only Count I, alleging violations of 18 U.S.C. §§ 2 and 2113(a), was submitted to the jury and the defendant was found guilty.

At the trial the defendant did not contest the fact of the robbery or that he was in the places at the times alleged by the government. His testimony was that Klein had sought him out in Louisiana, had forced him to go from Oklahoma to Independence, Missouri, to this particular bank, and that Klein had stolen the money without telling the defendant in advance of his intention to do so. He further testified that he was shocked when Klein jumped into the car with the bank’s money and that Klein forced him to accompany and assist Klein until they split up in Texas. On cross-examination, however, the defendant admitted that when Klein told the defendant to let him out of the cal* near the bank just prior to the robbery, the defendant knew that Klein intended to “case” the bank and the defendant was aware of Klein’s recent efforts to rob Texas and California banks.

The legal theory upon which the defense was based was that the robbery was complete at the moment Klein left the bank, and that even if, after that moment, the defendant intended to assist Klein, the defendant could not then be an aider and abetter of Klein in the bank robbery, but was at most an accessory after the fact. At the close of the evidence, the defendant requested Instruction No. 17, which he felt embodied this legal theory. The trial judge modified the instruction by adding the italicized portion below and gave it as follows:

Mere presence at the scene of the crime and knowledge that a crime is being committed are not sufficient to establish that the defendant aided and abetted the crime, unless you find beyond reasonable doubt that the defendant was a participant and not merely a knowing spectator.
To convict the defendant William Mirl Jarboe of aiding and abetting bank robbery, you must find beyond a reasonable doubt that at the time of the actual robbery Jarboe shared defendant James Allen Klein’s specific intent to examine and rob the Chris-man-Sawyer Drive-in Bank, on October 20th, 1972, or at some time in the reasonably near future, but it is not necessary that you find beyond a reasonable doubt that the defendant Jar-boe knew that James Allen Klein intended to rob said bank in the early afternoon of October 20th, 1972, while defendant Jarboe waited in the Cadillac automobile on Englewood Court Street.

The trial judge then gave Instruction No. C — 2 of his own composition:

You are further instructed that the act of escaping with the money stolen in a bank robbery is a substantial element of the crime of bank robbery. Therefore, if the evidence proves beyond a reasonable doubt that the accused Jarboe knowingly, intentionally and willfully aided James Allen Klein in escaping after the robbery of the Chrisman-Sawyer Drive-in Bank, the accused Jarboe is guilty of the offense of bank robbery, even if Jarboe did not know the bank robbery was going to take place while he waited in the Cadillac on Englewood Court.

The defendant argues that the above instructions are incorrect as a matter of law-, and that the giving of these instructions and the refusal of the tendered No. 17 denied the defendant the opportunity to have the jury consider a valid legal theory.

These instructions told the jury, in effect, that it should convict the defendant if it found either of two situations to have occurred:

1) If at the time the money was taken the defendant shared Klein’s intent to examine and rob the bank on that day or at some time in the reasonably near future; or

2) If after the taking of the money by Klein, the defendant aided Klein in escaping.

In Johnson v. United States, 195 F.2d 673 (8th Cir. 1952), this court explained the requirements for conviction under the aider and abetter statute:

To be an aider and abetter it must appear that one so far participates in the commission of the crime charged as to be present, actually or constructively, for the purpose of assisting therein. Thus, one who gives aid and comfort, or who commands, advises, instigates or encourages another to commit a crime may be said to be an aider and abetter. Generally speaking, to find one guilty as a principal on the ground that he was an aider and abetter, it must be proven that he shared in the criminal intent of the principal and there must be a "community of unlawful purpose at the time the act is committed. As the term “aiding and abetting” implies, it assumes some participation in the criminal act in furtherance of the common design, either before or at the time the criminal act is committed. It implies some conduct of an affirmative nature and mere negative acquiescence is not sufficient.
195 F.2d at 675.

The language “in furtherance of the common design, either before or at the time the criminal act is committed” clearly encompasses the first situation above and that described in Instruction No. 17. This language has recently been repeated with approval, United States v. Untiedt, 493 F.2d 1056 (8th Cir. 1974), and there was no error in giving an instruction embodying these principles.

Instruction C-2, which described the second possible situation above, is directly at odds with the defendant’s theory of the law. The defendant relies upon United States v. Irving, 141 U.S.App.D.C. 216, 437 F.2d 649 (1970), in which the Court of Appeals held that the following example given by the trial judge to the jury described the offense of accessory after the fact under the District of Columbia Code, not the offense of aiding and abetting:

Further, though, if B came out of the bank and said, “I have just robbed it, I have got this sack full of money, let’s go,” and then B got in A’s car and A took off and ran knowing that the crime had been committed, and helping in the escape, he could be liable (as an aider and abetter).
437 F.2d at 650.

Insofar as Irving suggests that a robbery is complete prior to the immediate escape, and hence that no further aiding and abetting could occur at that point, we do not feel that it is correct. In United States v. Pietras, 501 F.2d 182 (8th Cir. 1974), we held that the offenses described in 18 U.S.C. § 2113(d) and (e) extend at least to the hot pursuit following the physical departure from the bank, a pursuit which in that case extended to a nearby town for a period of something less than half an hour:

While the interpretation urged by Pietras might be placed upon the language of the statute, there is nothing in the legislative history of the original Bank Robbery Act to suggest that the two sections were to receive diverse treatment. S.Rep.No. 537, 73d Cong., 2d Sess. (1934); H.Rep.No. 1461, 73d Cong., 2d Sess. (1934); H.Rep.No. 1598, 73d Cong., 2d Sess. (1934); 78 Cong.Rec. passim (1934). Indeed the letter of explanation by the then Attorney General who recommended the bill suggests that the two sections were nearly coterminous. However, lest no effect be given to § 2113(e)’s additional reference to “avoiding . . . apprehension” and “freeing himself . . . from confinement” contingencies, we hold that “committing any . . . (robbery)” as used in both § 2113(d) and § 2113(e) extends at least to a hot pursuit that follows the physical departure from the bank building. In this respect we affirm the reasoning of the district court in denying Pie-tras’ motion for a mistrial:
(Y)ou cannot complete your taking until you have terminated the possibility of the item being recovered, it would appear to me an escape effort immediately following the taking is a part of the taking process.....501 F.2d at 187.

We now hold that the offense described in 18 U.S.C. § 2113(a) extends for a similar period — i. e., hot pursuit — and that Instruction C — 2 as given by the trial judge in this case was correct.

After deliberating for approximately two hours, the jury sent the trial judge a note requesting clarification of the instructions concerning the defendant’s actions after the money was taken by Klein from the bank. After consultation with counsel, the trial judge re-read certain of the instructions, including Nos. 17 and C — 2, and added No. C — 4, which read:

If you find that after the commission of a crime of bank robbery by Klein the defendant Jarboe “continued to be related to” Klein and that defendant Jarboe did not “attempt to disclose information willingfully to proper authorities,” these circumstances can be considered by you together with all the other facts and circumstances in evidence in determining the guilt or innocence of Jarboe. These circumstances do not, standing alone, prove that the defendant is guilty of the offense charged. If, however, the evidence proves beyond a reasonable doubt that the defendant willfully, knowingly, and intentionally participated in the commission of the bank robbery by aiding Klein in commission of the robbery, or in escaping with the stolen money after the bank robbery, the accused Jarboe is guilty of the offense of bank robbery. If you find that the evidence does not prove beyond a reasonable doubt that Jarboe willfully, knowingly and intentionally participated in the commission of the bank robbery or in escaping with the stolen money after the robbery, you should acquit him.

In light of the previous discussion, we find no error in the re-reading of Nos. 17 and C — 2 or in the addition of C-4. Admittedly, the phrase “escaping with the stolen money after the robbery” was somewhat imprecise since the escape was a part of the robbery, but the instruction as a whole was sound and did not prejudice the defendant nor preclude him from having a fair trial.

Accordingly, we affirm the judgment of conviction.

      . 18 U.S.C. § 2:
      (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
      (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
      18 U.S.C. § 2113(a):
      (a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or
      Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny—
      Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.


source: Caselaw Access Project

author: ALBERT V. BRYAN, Senior Circuit Judge: WINTER, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Larry Drake ATKINSON, Appellant. UNITED STATES of America, Appellee, v. Amos Manuel DUBOIS, Appellant.
    Nos. 74-1648, 74-1646.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 6, 1974.
    Decided March 11, 1975.

      Joel A. Brenner, Mineóla (Diller & Schmukler and Howard J. Diller, New York City, on brief), for appellant in No. 74-1648.
    Roland C. Braswell, Goldsboro, N. C. (Court-appointed), for appellant in No. 74-1646.
    Joseph W. Dean, Asst. U. S. Atty. (Thomas P. McNamara, U. S. Atty., and Jack B. Crawley, Jr., Asst. U. S. Atty., on brief), for appellee in Nos. 74 — 1646 and 74-1648.
    Before BRYAN, Senior Circuit Judge, and WINTER and BUTZNER, Circuit Judges.
   ALBERT V. BRYAN, Senior Circuit Judge:

Heroin was illegally possessed and distributed in Wilmington, North Carolina by Larry Drake Atkinson and Amos Manuel Dubois while acting together on July 16, 1973, and by Atkinson alone on July 17, according to their four-count indictment under the Comprehensive Drug Abuse Prevention and Control Act of 1970. Atkinson was convicted of illegal possession and distribution of heroin on both days; Dubois was convicted only of possession on July 16. In their appeal, we discern no error requiring reversal.

The prosecution was built almost entirely upon evidence given by undercover informer Charles Pennington. It was enough to allow the jury to find the defendants’ guilt beyond a reasonable doubt. Prom it the jury could have found the facts, and apparently did, as they are now recounted from Pennington’s narration of them.

Working with the Wilmington police authorities, he kept surveillance, between mid-June and mid-July, of the home of a Jackie Hayes in Wilmington. At the instance of an undercover policeman, he called at her home at least three times before July 16, where among others he saw and met appellants Atkinson and Dubois.

Occasionally Atkinson sought to enlist Pennington in the sale of heroin. Accepting the suggestion, on July 16 with money furnished by the police, Pennington purchased from Atkinson at the Hayes residence a small quantity of heroin, saying he wanted to be assured of its quality. Dubois’ participation on this day consisted of handing Pennington two glassine packages, each containing one gram of heroin.

After a short visit, Pennington withdrew, rejoined his police ally and turned his purchase over to him. A like visit was made on July 17 and he obtained another two glassine packages with a gram of heroin in each. The evidence does not put Dubois there at that time. These bags were also immediately given to Pennington’s undercover companion, who in both instances was waiting elsewhere. All four packages with the heroin in them were passed on to the police department and, ultimately, to the official chemist who found the contents of each of the four packages to be heroin.

Initially the defendants suggest the unconstitutionality of the Act in its application here. The point is that no Federal authority existed for the punishment of a wholly intrastate possession and distribution. The position is not tenable. Congressional findings on which the legislation rested disclosed that intrastate possession, distribution and sale of drugs such as heroin directly and injuriously effected the introduction of them into other States to the injury of the public health and welfare there. 21 U.S.C. §§ 801, 812. Thus the statutory definition and proscription of transactions of “controlled substances”, 21 U.S.C. § 812(b), entirely within a State is altogether constitutional. . United States v. Lopez, 459 F.2d 949 (5 Cir. 1972). Cf. White v. United States, 399 F.2d 813 (8 Cir. 1968).

A subsequent defense pressed by both Atkinson and Dubois is that the Government violated the Jencks Act, 18 U.S.C. § 3500, providing, as apt here:

“(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order, the United States to produce any statement (as hereinafter defined) of the witness in possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.”

Recalling Pennington’s evidence, it will be' noted that the case’s critical dates are July 16 and 17, the days on which the heroin was illicitly possessed or distributed. Detailed, Pennington’s testimony is that he encountered Atkinson four times before July 16.

These instances were first, the latter part of June 1973 at the home of Jackie Hayes, where he went on a call from Cooper, her fiance. Atkinson came to the house during this time.

Next, a few days later while at the Hayes home, on the invitation of Cooper, Pennington was asked to give Cooper a ride to Goldsboro, North Carolina. He did so and took Cooper to a shopping plaza. He saw Atkinson sitting in his own car about 30 feet away. Cooper got out of Pennington’s car and walked over to Atkinson’s. He returned with a small paper bag, whereupon Pennington and Cooper drove back to Wilmington.

Afterwards, in early July in the Hayes home, he was introduced to Atkinson who encouraged him to engage in street distribution of heroin, pointing up probable profits. Later Pennington drove home and called his undercover police partner. He related the Atkinson conversation to him and arranged to meet him at the police headquarters the following day. .

The fourth time Pennington saw Atkinson before July 16 was on July 15 at the Hayes home. This came ' about through preplanning with his informer companion, who was “working” that area of Wilmington. Pennington had made a purchase from Jackie Hayes’ brother and from him had learned that Atkinson was then at the Hayes home. On going there he saw Jackie Hayes, Atkinson and Dubois. He had not seen Dubois for more than a year before, and then in wholly different circumstance and purpose.

Next day, Monday, July 16, after meeting his undercover operative at 10:30 a. m., Pennington went to the Hayes residence and made the earlier mentioned purchase of heroin in the two glassine packages. This act was repeated on July 17, also as previously described. Immediately after each of these six events Pennington wrote an account of his activity. These handwritten notes he gave to his wife or left them at home, except for those of July 16 and 17, which he delivered each day to his police partner for filing with the authorities. The others he had never shown to his partner nor to any of the police.

During cross-examination of Pennington his two accounts, memoranda or reports covering July 16 and 17 were produced by the Government and he was cross-examined from them. Defense counsel demanded production, under the Jencks Act, of the notes Pennington had made after each of the four earlier times he had seen or been in contact with Atkinson.

Pennington declined to disclose the location of his home and wife because she was then under the protective custody of the Government. With her or at home Pennington placed the notes. Cf. United States v. D’Angiolillo, 340 F.2d 453, 457 (2 Cir. 1964), cert. denied 380 U.S. 955, 85 S.Ct. 1090, 13 L.Ed.2d 972 (1965). The United States Attorney stated that he had never seen these reports and had never been aware of their existence. The Court sustained Pennington’s position and pronounced the Government’s failure to produce these writings to be free of error.

To begin with, none of the unproduced memoranda or reports qualified as a “statement” within the Jencks definition. Cf. Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). They were not made for use by the Government, but simply as personal notations of Pennington of “conversations that took place”. These writings were not a detail of “drug purchases” such as those for July 16 and 17. Nor were they used by Pennington on the witness stand.

In Goldman v. United States, 316 U.S. 129, 132, 62 S.Ct. 993, 995, 86 L.Ed. 1322 (1942), the Court spoke to the point:

“We think it the better rule that where a witness does not use his notes or memoranda in court, a party has no absolute right to have them produced and to inspect them.”

Though prior to the Jencks Act (enacted in 1957), Goldman’s teaching has been constantly followed since the passage of this legislation. It was cited by the Fifth Circuit in Spurrier v. United States, 389 F.2d 367, 368 (1967), cert. denied 391 U.S. 922, 88 S.Ct. 1814, 20 L.Ed.2d 658, (1968), to this statement:

“We conclude that the trial court did not err in not requiring witness Hall to produce memoranda made by him to refresh his recollection if they were not in fact so used by him. See Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942) and Needelman v. United States, 5 Cir., 261 F.2d 802.”

Needelman v. United States, just cited, enlarged on the point, id. at 806:

“Narcotic agent Rudd did not use his memoranda or notes to refresh his recollection while testifying, but admitted that he refreshed his recollection from them before testifying. Such memoranda or notes made contemporaneously by the witness for the purpose of refreshing his own recollection are not strictly within the rule of Jencks v. United States, 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, or of the statute passed to meet that decision, 18 United States Code § 3500, which relate to formal written statements or reports made by the witness and signed or otherwise adopted or approved by him. Unlike such statements or reports, the mere memoranda or notes could not be directly introduced for impeachment purposes, but might be used as a basis for cross-examining the witness. The case of Goldman v. United States, 1942, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1332, holding that it is discretionary with the trial court to require or not to require a witness to produce memoran-da or notes from which he had refreshed his recollection before taking the stand, was not overruled by Jencks, supra.

Again, the District of Columbia Circuit in McGill v. United States, 106 U.S.App.D.C. 136, 270 F.2d 329, 331 (1959) touched the subject:

“The witness stated that he had made notes on the case which he had read to refresh his recollection prior to coming to court but that he had not used them in testifying. Demand being made for the production of the notes, the court held that if the officer had referred to the notes on the witness stand for the purpose of refreshing his recollection while he was testifying, then counsel, upon request, was entitled to look at those notes; but that if the witness had used those notes simply to refresh his recollection before coming to court, counsel would not be entitled to require their production.
“We believe that the so-called ‘Jencks’ statute, 18 U.S.C. § 3500 (Supp. V, 1958), governs and that the notes demanded were not required to be produced under the terms of that statute. Cf. Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287. Accordingly, the refusal of the trial court to order their production for the use of the defense was not error.”

Furthermore, no deception was practiced on the defendants, inadvertently or deliberately, in respect to the Pennington memoranda. This was the factor of disapproval expressed in Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) and in Barbee v. Warden, 331 F.2d 842, 846 (4 Cir. 1964). Here neither the United States Attorney’s office nor the police were aware of the existence of any such notes. All of the Pennington memos they knew of or had, i. e. those of July 16 and 17, had been delivered to the defendants.

In any event, non-production of the Pennington memoranda was harmless error. United States v. Missler, 414 F.2d 1293, 1304 (4 Cir. 1969). No prejudice was shown. Pennington had been minutely cross-examined by each of the two defense attorneys. Crimes had been committed only on July 16 and 17; the notations of them had been adduced. There is no claim or indication whatsoever that any of the conversations or contacts occurring before these two days were in the slightest exculpatory of the defendants.

The latest word on the question appears in our decision of United States v. Atkinson, et al., 512 F.2d 1235 (1975). There it was emphasized that the prosecutor had no “duty under the standard set in Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) to disclose information to the defense when it is not even charged that Government attorneys were in possession of the information”. (Accent added).

Still another defense of both Atkinson and Dubois was the prosecution’s failure to have Pennington, while on the witness stand, to identify the packages and contents exhibited to the jury as those received by him at the Hayes residence on July 16 and 17. While this was an available method of proof, the identification was sufficiently made by the means adopted by the prosecution. It consisted of tracking the packages to, through and from every hand into which they passed until they reached the chemist. Each of the handlers, beginning with Pennington and ending with the chemist, vouched the exclusiveness of their custody.

Each defendant endeavored to prove an alibi, but the Government’s evidence was sufficient to warrant the jury in agreeing that the accused were present at the time and place of the crimes charged to them. Further, we perceive no impermissible injection of prejudicial testimony by the prosecution. Nor was there error in the Court’s definition of reasonable doubt.

Finally, neither Atkinson’s 12-year sentence nor Dubois’ four years can be counted as amounting to unusual or excessive punishment affronting the Eighth Amendment. Both defendants were more than 22 years old, and no obligation rested upon the court to inquire whether either would be benefitted by treatment under the Youth Corrections Act, 18 U.S.C. § 5005, although permissibly adaptable to them by virtue of the Young Adult Offenders Act, 18 U.S.C. § 4209.

The judgments on appeal should stand.

Affirmed.

WINTER, Circuit Judge

(concurring):

I concur in the judgment of the court and all of the opinion except the reasoning which supports the holding that there was no violation of the Jencks Act when the government failed to produce Pennington’s handwritten notes of his meetings with drug dealers and sellers prior to the meetings of July 16 and 17, 1973. While I agree that these notes of earlier meetings were not discoverable under the Jencks Act, I reach this conclusion on a different basis from that articulated by the majority.

The notes involved were Pennington’s handwritten memoranda made by him after and as a result of his meetings with drug dealers and suppliers. Pennington had these meetings in his capacity as a paid government informer — paid by the state. Except for the notes of the meetings of July 16 and 17 which were turned over to the police, the notes of other meetings were not shown to the police or turned over to any government authority or the fact of their existence disclosed. They were retained by Pennington or his wife, or left at home, 3,500 miles away, where Pennington and his family were lodged in protective custody by the federal government until Pennington’s presence as a witness at the trial was required.

I have no doubt that Pennington’s notes were “statements” within the meaning of 18 U.S.C. § 3500(e)(1) (1975 Cum.Supp.), because they were made by Pennington and obviously “adopted or approved by him.” The Act does not require that a writing be made at the solicitation of the government, or for the purposes of the government investigation, or even for the purpose of giving testimony in .court. See Rosenberg v. United States, 360 U.S. 367, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959). But, even though “statements,” their production was not mandated by the Jencks Act because it encompasses only “any statement ... of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.” (Emphasis added.) 18 U.S.C. § 3500(b). By no stretch of the imagination do I think that on the facts presented it could be concluded that the unknown, undisclosed handwritten memoranda were “in the possession of the United States,” and this should be the end of the issue.

Defendants contend that since Pennington was a government informer and he and his family were in protective custody, the statements were within the “possession of the United States” within the meaning of § 3500, and, alternatively, that Pennington was “a trained and knowledgable police agent in a joint state-federal investigation.” I reject both arguments. Protective custody of Pennington and his family was no more possession by the United States of the undisclosed notes than it was possession by the United States of Pennington’s wearing apparel, jewelry (if any), other personal belongings or the members of Pennington’s family who were lodged with him. To state the proposition is to refute it. Second, Pennington was a paid informer — not a police officer. Moreover, Pennington was paid by the State of North Carolina as part of a cooperative federal-state venture; his possession was at most possession by the state. Possession by the state is not enough to warrant production under the Jencks Act in a subsequent federal prosecution. United States v. Conway, 415 F.2d 158 (3 Cir. 1969), cert. denied, 397 U.S. 994, 90 S.Ct. 1131, 25 L.Ed.2d 401 (1970); United States v. Harris, 368 F.Supp. 697, 708-09 (E.D.Pa.1973).

To summarize, I am of the view that purely as a matter of statutory construction, the Pennington notes sought to be obtained were not discoverable under the Jencks Act. Government of Virgin Islands v. Rodriguez, 300 F.Supp. 860, 865 (D.V.I.1969), aff’d 423 F.2d 9 (3 Cir. 1970), is precisely on point. I would not rest my decision on Goldman, decided before enactment of the Jencks Act, and its progeny — even those Courts of Appeals cases decided after enactment of the Jencks Act. In the first place, Goldman may not properly be applied here since adoption of the Jencks Act; Rosenberg, supra, held that a letter written by a witness to the F.B.I. expressing fear that her memory as to events in issue was poor was discoverable under the Act, although in that case nonproduction was harmless error. Rosenberg thus rests, as I do, on the statute and not a nice distinction as to whether a witness’ own writing was used out-of-court to refresh his recollection or whether it was used in-court as an aid to testimony. See also Campbell v. United States, 373 U.S. 487, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963). To me, the better-reasoned Court of Appeals decisions are also based upon the statute and explicitly or impliedly reject the distinction. See Bergman v. United States, 253 F.2d 933 (6 Cir. 1958). See also Bradford v. United States, 271 F.2d 58 (9 Cir. 1959); Holmes v. United States, 271 F.2d 635 (4 Cir. 1959); United States v. Berry, 277 F.2d 826 (7 Cir. 1960).

      . 21 U.S.C. §§ 801, 841(a)(1) (1970).


author: GODBOLD, Circuit Judge:

text:
    ROTO-ROOTER CORPORATION and Gerald R. Abbott d/b/a Roto Rooter Sewer Service, Plaintiffs-Appellants, v. Kenneth O’NEAL et al., Defendants-Appellees.
    No. 74-1423.
    United States Court of Appeals, Fifth Circuit.
    May 14, 1975.
    Paul L. De Verter, II, Houston, Tex., for Roto-Rooter.
    Stewart W. Forbes, El Paso, Tex., for Gerald R. Abbott.

      William J. Derrick, El Paso, Tex., Ben C. Buckingham, Des Moines, Iowa, for plaintiffs-appellants.
    Dean Hester, El Paso, Tex., for defendants-appellees.
    Before RIVES, GODBOLD and GEE, Circuit Judges.
   GODBOLD, Circuit Judge:

Plaintiff, Roto-Rooter Corporation, an Iowa corporation was granted a federal registration in 1954 for its service mark “Roto-Rooter” for municipal, industrial and domestic sewer, drain and pipe cleaning service. The mark dates back to 1935. In 1963 it was granted registration for its design form of the same mark for the services of cleaning sewer, oil and water pipes, field and drain tile, and conduits for electrical cable. In 1965 plaintiff Gerald R. Abbott, a licensee of Roto-Rooter, established a Roto-Rooter Sewer Service in El Paso, Texas, serving that city and the surrounding county and adjacent parts of New Mexico.

Defendant Rotary De-Rooting, Inc., a Nevada corporation, owns state trademarks in Nevada and California for the term “Rotary De-Rooting” in conjunction with a drawing of an angel utilizing a sewer cleaning machine and a slogan “the sewer man with a conscience.” It conducts sewer service operations through its own employees or through franchises principally in cities in California and also in Nevada and Texas. Defendant George B. Hess commenced a Rotary DeRooting Sewer Service operation in El Paso in 1973 in competition with the Roto-Rooter franchise. Promptly thereafter Roto-Rooter notified defendants it claimed infringement and commenced this action for infringement and unfair competition.

After trial the District Court denied relief to plaintiffs. It concluded that there was no evidence of any statistically significant confusion in relation to the value of business done by plaintiffs in the El Paso community, that the name “Rotary DeRooting Sewer Service” was not deceptively or confusingly similar to the Roto-Rooter name, and that any person exercising ordinary care could readily distinguish . the trade names utilized by the parties. The court also found that Roto-Rooter was bound by laches, because it had actual knowledge beginning in 1968 that defendant Hess and his predecessors had continuously employed in the Las Vegas, Nevada, area the trade name Rotary De-Rooting Sewer Service in direct competition with a franchise of Roto-Rooter. We reverse.

Infringement of a registered mark is governed by 15 U.S.C. § 1114(1) which imposes liability against “use likely to cause confusion, or to cause mistake, or to deceive.” Proof of actual confusion is not necessary — likelihood of confusion is the appropriate inquiry. Continental Motors Corp. v. Continental Aviation Corp., 375 F.2d 857 (CA5, 1967); American Foods, Inc. v. Golden Flake, Inc., 312 F.2d 619 (CA5, 1963); Frostie Company v. Dr. Pepper Company, 341 F.2d 363 (CA5, 1965). In this circuit likelihood of confusion is determined by evaluating a variety of factors including the type of trademark at issue; similarity of design; similarity of product; identity of retail outlets and purchasers; identity of advertising media utilized; defendant’s intent; and actual confusion. While proof of actual confusion is not required to sustain a claim of infringement, the view of this court is that it is the best evidence of likelihood of confusion. World Carpets, Inc. v. Dick Littrell’s New World Carpets, 438 F.2d 482, 489 (CA5, 1971).

The decision of the trial court must be reversed ’ for two interrelated reasons. The court appears to have employed an incorrect legal standard, and, when examined under correct standards, plaintiffs’ evidence established the likelihood of confusion required by the law of this circuit. The trial court referred to absence of evidence of statistically significant confusion. The test is, of course, likelihood of confusion.

The plaintiffs presented evidence of actual confusion — under World Carpets the best evidence of likelihood — by the testimony of four persons who had mistakenly employed defendants although intending to use the service of plaintiffs. The District Court considered their testimony “not statistically significant.” However, as this court said in World Carpets, “reason tells us that very little proof of actual confusion would be necessary to prove the likelihood of confusion.” 438 F.2d at 489. Additionally, the court found that the four persons had “simply made an error” which “resulted from carelessness or inadvertence rather than from any confusing similarity between either the names or the advertisements of the parties.” The record does not support this finding, either directly or as an inference. Cross-examination, rather than demonstrating carelessness or inadvertence, showed that the four persons had ma'de their mistakes because of reliance upon the similarity of defendants’ name to that of plaintiffs’. This is precisely the type of error that 15 U.S.C. § 1114 seeks to protect against. Also, witness Hoffman, one of the two stockholders in the defendant company, the licensor of Rotary De-Rooting franchises, testified:

Q Can you give examples of what you are talking about [in referring to the word “rooter” as meaning a particular type of service with a particular type of machine, as opposed to a particular company]?
A Well, occasionally when you go on a job people say — you will knock at the door and they say “Oh, are you the Roto-Rooter man?” and we say “We are Rotary De-Rooting.” and they say “Well, that is the same thing.”.

In March 1968 plaintiff RotoRooter Corporation sent an infringement letter to a business in Las Vegas, Nevada, operated by the predecessor of Rotary De-Rooting, Inc., and under the.Rotary De-Rooting Sewer Service name. Roto-Rooter then had a franchise in Las Vegas, and it claimed that the Rotary De-Rooting Sewer Service name infringed the Roto-Rooter name. However, no litigation was instituted by Roto-Rooter or its Las Vegas franchise against Rotary De-Rooting, although Roto-Rooter did sue others in the Las Vegas area claiming infringement. In 1970 defendant George Hess worked for the Las Vegas franchise of Rotary De-Rooting Sewer Service. In 1971 he purchased that franchise. In January 1973, after acquiring from Rotary De-Rooting, Inc., the right to use the Rotary De-Rooting Sewer Service name in the El Paso area, Hess began operations in El Paso. Within a month Roto-Rooter notified him of alleged infringement, and suit was filed in April 1973. Thus the impact of the failure of Roto-Rooter to police its rights by litigation in the Las Vegas area must be traced from Rotary De-Rooting, Inc.’s, predecessor, to Rotary De-Rooting, Inc., thence to Hess in Las Vegas, and finally to Hess in El Paso, where another RotoRooter franchise was operating. Bearing in mind these circumstances and the fact that March 1968 to February 1973 is slightly, less than five years, we think that the equitable defense of laches was not properly invoked in this case.

The District Court found that plaintiffs had failed to prove secondary meaning. But proof was unnecessary with respect to the registered marks. Curtis-Stephens-Embry Co. v. Pro-Tek-Toe Skate Stop Co., 199 F.2d 407 (CA8, 1952); Vandenburgh, Trademark Law and Procedure, 2d Ed., 1968, § 2.20 at 59. Reversed and remanded.

      . See American Foods, supra, 312 F.2d at 624.

        Id.

      . Sears, Roebuck & Co. v. All States Life Ins. Co., 246 F.2d 161, 166 (CA5), cert. denied, 355 U.S. 894, 78 S.Ct. 268, 2 L.Ed.2d 192 (1957).

      . American Foods, supra, 312 F.2d at 624; see also Continental Motors, supra, 375 F.2d at 861.

      . American Foods, supra, 312 F.2d at 624; see also Continental Motors, Supra, 375 F.2d at 861.

      . American Foods, supra, 312 F.2d at 625.

      . American Foods, supra, 312 F.2d at 624.


author: DYER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Andrew SCASINO a/k/a Bob White, Pasquale Scasino a/k/a Pat White, Donald Hepburn, Joseph Lo Paro, Harry Cowen, William T. Mayo, John Biagio Scasino, Lois Bowden Hamlen, Marion Cigalese Efantis a/k/a "Chickie”, James Rand, Izaac M. Silber, and Richard Curran, Defendants-Appellees.
    No. 73-2855.
    United States Court of Appeals, Fifth Circuit.
    May 16, 1975.

      Robert W. Rust, U. S. Atty., Miami, Fla., James A. Rothchild, Atty., App. Sec., Crim. Div., Dept, of Justice, Washington, D. C., Marilu Marshall, U. S. Dept, of Justice, Miami, Fla., for plaintiff-appellant.
    Melvyn Kessler, Miami, Fla., for Andrew Scasino, Pasquale Scasino, Donald Hepburn, John Biagio Scasino.
    Arthur Massey, Miami, Fla., for Joseph Lo Paro.
    Joseph Pardo, Miami, Fla., for James Rand and Izaac Silber.
    Arthur Stark, Miami, Fla., for Harry Cowen.
    Angelo Ali, Miami, Fla., for Richard J. Curran.
    Donald I. Bierman and Neal R. Son-nett, Miami, Fla., for Lois Bowden Ham-len.
    Louis Lesperance, Miami, Fla., for William T. Mayo.
    Before WISDOM and DYER, Circuit Judges, and KRAFT, District Judge.

       Senior District Judge of the Eastern District of Pennsylvania, sitting by designation.'

   DYER, Circuit Judge:

Defendants were indicted on one count of conducting a gambling operation and one count of conspiracy to run a gambling operation which had remained in operation continuously for more than thirty days, had a gross revenue of more than $2,000 in a single day, and involved five or more persons in the conduct, management, supervision, direction and ownership of a gambling operation in violation of 18 U.S.C.A. § 1955 and 18 U.S.C.A. § 371. They also were charged with five counts of unlawfully, willfully and knowingly using a facility in interstate commerce with intent to promote, manage, establish and carry on a gambling operation in violation of 18 U.S.C.A. § 1952. Prior to trial defendants moved to suppress evidence obtained from a wiretap and search on the grounds that the evidence was tainted by a prior illegal wiretap. The district court granted the motion and the government appeals. Because defendants have no standing to challenge the first wiretap and consequently cannot suppress the second wiretap and search as derived therefrom, we reverse.

The government’s evidence consisted primarily of telephone conversations intercepted pursuant to court authorized electronic surveillance (Scasino wiretap) from December 17 to December 23, 1971, and gambling paraphernalia seized under search warrants executed on January 6, 1972. The finding of probable cause for the wiretap was supported by information from a confidential informant, observations of government agents, and transcripts of four telephone conversations intercepted in a prior wiretap (Vi-tanza wiretap). The probable cause for the January, 1972, search was based on the results of the Scasino wiretap.

Subsequent to. the execution of the two wiretaps the Vitanza wiretap was discovered to contain a Giordano defect and was therefore illegal. The defendants in this, case moved to suppress the evidence obtained from the Scasino wiretap and the January, 1972, search as tainted fruit of the illegal Vitanza wiretap. The district court in granting the motion found that the Vitanza wiretap gave substantial impetus to the investigation of this case and that the government failed to demonstrate an independent basis of probable cause for the Scasino wiretap. Because defendants have no standing to suppress the illegal Vitanza wiretap or evidence derived therefrom, we find it unnecessary to pass on the correctness of the district court’s determinations.

Standing is governed by 18 U.S.C.A. § 2518(10)(a), which provides that any “aggrieved person” may suppress the contents of an unlawfully intercepted communication or evidence derived therefrom. “Aggrieved person” is defined in 18 U.S.C.A. § 2510(11) as “a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed.” Strongly supportive of the government’s position that defendants are not aggrieved persons is United States v. Gibson, 4 Cir. 1974, 500 F.2d 854. Gibson attempted, as the defendants did here, to suppress a second wiretap, the probable cause of which was based partly on intercepted conversations obtained from a prior wiretap defective under Giordano. The initial illegal (Mantello) wiretap provided information to support a finding of probable cause for the issuance of a wiretap order against Commings. The Commings tap provided evidence damaging to Gibson. Since Gibson was not directly implicated by the Mantello wiretap, the court concluded that he was not a person “aggrieved” by that wiretap and held suppression to be improper. We are faced with a similar factual situation. The Vi-tanza wiretap directly implicated Andrew Scasino since his conversations were overheard, but there was no allusion to these defendants or their conduct. It gave impetus to the investigation of Andrew Scasino and to the Scasino wiretap, which lead to the discovery that these defendants were engaged in illegal gambling activities. But, as in Gibson, they were not directly implicated by the initial wiretap.

Defendants attempt to distinguish Gibson by asserting that the gambling operations which were the targets of the Vitanza and Scasino wiretaps constituted but one gambling operation. They argue that since the government requested postponement of the Vitanza wiretap inventory disclosure until the Scasino interceptions were completed, the government must have treated the two operations as but one operation. If that is the case, defendants argue, the Vitanza wiretap was “directed” at them, making them “aggrieved persons” within 18 U.S.C.A. § 2510(11). They suggest that the term “aggrieved persons” covers not only those persons whose conversations were intercepted or on whose premises the conversations occurred, but also those persons named in the wiretap order. Although defendants were not specifically named in the Vitanza wiretap order, the order did cover “others as yet unknown.” Consequently, the defendants urge that since the Vitanza wiretap was aimed at an operation of which the Scasino operation was a part, they were among “others as yet unknown,” and the wiretap was therefore directed at them.

We need not determine whether those named in a wiretap order, including those arguably covered by language such as “others as yet unknown,” have standing to suppress evidence derived from an illegal wiretap, since, because it is clear from the record that not one but two independent gambling operations were involved, the first wiretap could not have been “directed” at these defendants. The operation which was the subject of the Vitanza wiretap was supervised and directed by Vitanza. The second operation, the target of the Scasi-no wiretap, was controlled by Andrew Scasino and Pasquale Scasino. Each operation employed its own collectors to accept wagers on behalf of the operation. The Scasino operation relied significantly on “layoffs” of large bets from smaller operators. Vitanza made lay-offs to persons known only as “Vic” and “Paul,” but did not lay-off to the Scasino operation. Both operations had independent sources of “line information” or odds on various sporting events. None of Vitanza’s confederates were involved in the Scasino operation, and none of the defendants or other Scasino confederates were involved in the Vitan-za operation. The only thread to connect the two operations was the interception of four conversations between Vitanza and Andrew Scasino, out of more than one thousand conversations heard in the Vitanza wiretap, in which Scasino passed line information to Vitan-za. The actual conduct of the two operations never touched. The postponement of the Vitanza inventory was logical. Since Alfred Vitanza and Andrew Scasi-no, heads of the respective operations, were acquainted, Vitanza could have tipped Scasino to the fact of the Vitanza tap, and the federal investigation of Sca-sino could have been prejudiced by Scasi-no’s resulting caution. It does not follow that the two operations were conducted as a unit. Thus, the record clearly shows two independent operations sharing a miniscule bit of information.

In the circumstances of this case the defendants clearly cannot be considered aggrieved persons within the meaning of the statute. The Supreme Court in Alderman v. United States, 1968, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, has read the legislative history of the wiretap statute as intending the statute to reflect the existing law of standing in wiretap cases. See also United States v. King, 9 Cir. 1973, 478 F.2d 494, 506; United States v. Ahmad, M.D.Pa.1972, 347 F.Supp. 912, 933, aff’d in part, rev’d in part on other grounds, 3 Cir. 1973, 482 F.2d 171. Under prestatutory fourth amendment law,' one does not have standing to suppress an illegal wiretap unless his conversations were overheard or the conversations occurred on his premises. Alderman, supra, 394 U.S. at 176, 89 S.Ct. 961. See also Goldstein v. United States, 1941, 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312; United States v. Kane, 5 Cir. 1971, 450 F.2d 77.

Consequently, under 18 U.S.C.A. § 2510(11) an “aggrieved person” is one who participated in the intercepted conversation or on whose premises the conversation occurred. United States v. King, supra at 506; In re Dellinger, 2 Cir. 1972, 461 F.2d 389, 392; United States v. Ahmad, supra at 933; United States v. Iannelli, W.D.Pa.1972, 339 F.Supp. 171, aff’d, 3 Cir. 1973, 477 F.2d 999. None of the defendants involved in this appeal were participants in any conversations intercepted by the Vitanza wiretap, nor did any of the conversations occur on their premises. They therefore are not “aggrieved persons” of the Vitanza wiretap, and they are precluded from asserting its illegality. Thus, since one cannot assert indirectly what he cannot assert directly, defendants have no standing to suppress evidence obtained from the Scasino wiretap or from the January, 1972, search as evidence derived from an illegal wiretap. £>ee Alderman, supra, 394 U.S. at 171-76, 89 S.Ct. 961, and cases cited therein.

Reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

      . In United States v. Giordano, 1974, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341, an order authorizing or approving the interception of wire or oral communications was determined to be defective since the application for the order was not authorized by the Attorney General or by an Assistant Attorney General specially designated by the Attorney General as required by 18 U.S.C.A. § 2516(1). Accord, United States v. Robinson, 5 Cir. 1973, 472 F.2d 973.

      . To uphold the suppression order of the district court defendants suggested on oral argument that the Scasino wiretap be treated as an extension of the illegal Vitanza wiretap. When a statutorily authorized extension of an illegal wiretap under 18 U.S.C.A. § 2518(5) is involved, then no standing question is raised since the original wiretap is simply continued for a longer period of time and therefore if suppression is appropriate for the original, it is appropriate for the “extension.” United States v. Giordano, 1974, 416 U.S. 505, 529-33, 94 S.Ct. 1820, 40 L.Ed.2d 341. Giordano involved the extension of the original wiretap for a period of time beyond that authorized in the original order at the same telephone number that was the subject of the original wiretap. We are not confronted with an extension order or even anything analogous to an extension order of the Vitanza wiretap, but rather with two separate wiretaps, months apart, at two separate, independent gambling operations and different telephone numbers.

      . In its recent wiretapping and eavesdropping legislation, Congress has provided only that an “aggrieved person” may move to suppress the contents of a wire or oral communication intercepted in violation of the Act. Title III, Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 221 (18 U.S.C. § 2518(10)(a) (1964 ed. Supp. IV)). The Act’s legislative history indicates that “aggrieved person,” the limiting phrase currently found in Fed.Rule Crim.Proc. 41(e), should be construed in accordance with existent standing rules. See S.Rep.No.1097, 90th Cong., 2d Sess., at 91, 106. Id. at 175, n. 9, 89 S.Ct. at 968.

      . Defendant Andrew Scasino was a party to four conversations intercepted in the Vitanza wiretap. However, he died in March, 1973, prior to the April, 1973, suppression hearing. Consequently, the issue, as to him is moot.


author: PER CURIAM:

text:
    Leroy CALLAHAN, Plaintiff-Appellant, v. H. M. PRICE, etc., et al., Defendants-Appellees.
    No. 74-1029.
    United States Court of Appeals, Fifth Circuit.
    May 16, 1975.
    Fred L. Banks, Jr., Jackson, Miss., for plaintiff-appellant.
    Wm. B. Compton, Meridian, Miss., Harold W. Davidson, Carthage, Miss., for defendants-appellees.
    ON PETITION FOR REHEARING
    (Opinion December 13, 1974, 5 Cir. 1974, 505 F.2d 83.)
    Before COLEMAN, CLARK and RO-NEY, Circuit Judges.
   PER CURIAM:

In the petition for rehearing it is asserted that the panel misapprehended the chronology of some of the facts in this case. The response to the petition concedes the point. The mistakes reflected in the panel opinion occurred through dependence upon the appellant’s brief for a recitation of the facts. The facts were not there set forth in chronological order. The chronology apparently seemed of no particular importance to the appellant, except on petition for rehearing. We conclude that the exact chronology is of no decisional consequence. The hearings before the school board were extensive and involved numerous witnesses with continual switching of time frame in questions and answers. The evidentiary hearing before the district court was partially repetitious of facts covered in the hearings before the Board.

The parties now agree that the following portion of the panel opinion, 505 F.2d at 85, is chronologically incorrect in that these events did not occur during the 1970 — 71 year as indicated in the paragraph immediately preceding the following quotation:

He set about to assure equal participation in all of the school’s activities by placing blacks on the cheerleader squad in representative numbers, by allowing blacks to participate fully in homecoming and fund raising activities, and by placing blacks on the local board of trustees. These actions incurred the wrath of several of the white patrons of the school. Callahan was referred to in derogatory terms, signs were painted along the route he traveled to his farm each day, and, on occasions, threats were passed along to him and to his friends and supporters.
In spite of this opposition to Callahan he was reemployed for the 1971-72 school term.

The following events occurred during the fall months of the 1972-73 school year, after rather than before the run-in with the popular football coach in the 1971 — 72 school year:

(1) Placing blacks on cheerleader squad in representative numbers;
(2) Allowing blacks to participate fully in homecoming and fund raising activities;
(3) Placing blacks on local board of trustees;
(4) Callahan referred to in derogatory terms;
(5) Signs painted along the route Callahan traveled to his farm;
(6) Occasional threats passed along to Callahan, his friends and supporters.

The panel opinion is in apparent error also for indicating that Superintendent Price recommended Callahan for reemployment in 1971 and 1972. He was in fact recommended for these two terms of employment by the Leake County superintendent of education, the predecessor to Superintendent Price, who did not take office until January 1972. Superintendent Price then recommended Callahan for reemployment for the 1972 — 73 school term. This recommendation was made in January 1972. At that time Price testified that he was unaware of any opposition to Callahan, which “bloomed out” later in the spring of 1972 when petitioner Callahan failed to recommend football coach Johnny McCloud and three other teachers for rehiring for the school year 1972-73.

A review of the record convinces us, however, that the facts, when correctly apprehended, although not as strong as originally recited in the panel opinion, nevertheless support the conclusion that we cannot hold to be clearly erroneous the finding of the trial court that, despite the fact that some of the opposition to Callahan was racially motivated, Superintendent Price’s decision not to reemploy Callahan was based on considerations and opposition unrelated to any efforts of the principal to comply with court-ordered desegregation. Although the original panel opinion may have misapprehended the correct chronology, the district court did not. In the view of the panel, on the first chronology, Callahan’s unpopularity because of his racial activities was exacerbated by the Coach McCloud incident and the failure to recommend him for reemployment. In the correct view of the facts, the unpopularity because of the run-in with the football coach and other teachers was exacerbated by his activities in relation to the black students. One hand washes the other. The smooth working operation of a school is of utmost importance to the education of its students, particularly in a school attempting to implement court-ordered desegregation. As we concluded in the original opinion filed in this case, the findings and conclusions of the district court are supported by substantial evidence and are not clearly erroneous under F.R.Civ.P. 52(a).

The petition for rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the petition for rehearing en banc is denied.


author: LEWIS R. MORGAN, Circuit Judge:

text:
    NATIONAL ROPES, INC., Plaintiff-Appellant, v. NATIONAL DIVING SERVICE, INC., et al., Defendants, First National Bank in Little Rock, Intervenor-Appellee-Appellant, National Electric Coil, Intervenor-Appellee.
    No. 74-1258.
    United States Court of Appeals, Fifth Circuit.
    May 16, 1975.

      Donald F. Geffner, Richard F. Ralph, Miami, Fla., for plaintiff-appellant.
    J. Kirk Wood, Clifford B. Wentworth, Miami, Fla., for 1st Natl. Bank in Little Rock.
    John N. Moore, III, Key West, Fla., for Natl. Electric Coil.
    George D. Gold, Miami, Fla., for Natl. Diving Service.
    Before BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

This appeal comes to us for a determination of the interests of competing parties in certain wire rope and electric lifting magnets which were sold by two of the parties on appeal to an enterprise known as National Diving Service, Inc. (NDS), not a party to this appeal. It was argued before us as a contest between a secured party who had an interest in the rope and magnets as collateral under an after-acquired property clause, and the two vendors who sold the respective items to NDS. The district court awarded the wire rope to the secured party, but found that the magnet vendor’s claim to the magnets was superior to the interest of the secured party. For the reasons set forth more fully below, we reverse the judgment of the district court and the case is remanded.

I. FACTS

The two vendors who now claim an interest in the goods sold by each to NDS are National Electric Coil (“Coil”), a division of McGraw-Edison Company, an Ohio corporation, and National Ropes, Inc. (“Ropes”), a New York corporation. During July and August 1972, Coil sold two sets of lifting magnets to NDS, and Ropes filled two orders for wire rope from NDS. The magnets and rope were to be used in an operation to salvage steel from a vessel sunk in the Caribbean. The salvage operation was being organized in Key West, Florida; hence the magnets and rope were shipped there and placed upon the vessel “Real Gold.” NDS was incorporated in Arkansas, however, and maintained its principal place of business in Little Rock, Arkansas.

All sales to NDS by Coil and Ropes were on an open account basis. Neither vendor took a purchase money security interest in the goods sold. Both, however, made routine credit checks in Arkansas before extending credit to NDS. In the course of checking NDS’ credit references both vendors made telephone calls to the First National Bank in Little Rock (“Bank”), the other party to this appeal. Both Ropes and Coil were informed by a Bank officer that NDS had outstanding loans from the Bank. Neither vendor was told by the Bank of any existing security agreements between NDS and the Bank. Nor did either vendor check the Arkansas public records to find out whether the Bank had filed notice of any security agreements.

There was at least one security agreement between the Bank and NDS at the time Ropes and Coil made their phone calls to the Bank, a “General Pledge Agreement” dated June 9, 1972. Contemporaneously with the signing of this agreement, a standard financing statement was filed in Arkansas, noticing a security interest in certain equipment owned or thereafter acquired by NDS. An identical financing statement was filed in Florida on January 30, 1973, after the commencement of this litigation.

The litigation over possession of the equipment sold by Coil and Ropes began November 29, 1972, when Ropes filed a complaint in admiralty against NDS and the vessel “Real Gold,” asserting a maritime lien over the reels of wire rope. Shortly thereafter the Bank filed a motion to intervene as a defendant, asserting a security interest in the wire rope. Subsequently, Coil also moved to intervene, asserting a right to possession of the magnets which were on board the “Real Gold.” The Bank claimed that the magnets also fell under its security interest.

As for the wire rope sold by Ropes, the district court directed a verdict against Ropes on its maritime lien claim and also concluded, “Its only position is that of an open account creditor which has no right to the possession of goods in which [Bank] has a superior security interest.”

Coil claimed that its sale to NDS was made in reliance on written misrepresentations of solvency by the officers of NDS, giving rise to a right of reclamation under Fla. Stats.Ann. § 672.2—702(2). It also claimed to have made a demand for adequate assurance of performance under Fla. Stats.Ann. § 672.2-609, which assurance had not been given, thereby repudiating the sale under Fla.Stats. Ann. § 672.2 — 609(4). Coil asserted that it had elected to void the sale. Further, Coil showed that it had filed suit in the Florida state courts against NDS and the owner of the “Real Gold” for a writ of replevin.

The district court found that these provisions of the Uniform Commercial Code relied upon by Coil gave Coil “the right to repudiate or rescind the sale and reclaim the goods.” It also concluded:

The goods sold by [Coil] to [NDS] did not attach to the security interest given by [NDS] to [the Bank] because
(a) that security interest covered equipment located only in Little Rock, Arkansas;
(b) it was of a type which is not used normally in more than one jurisdiction;
(c) [Bank] did not disclose to, and in fact willfully withheld from [Coil], the fact that it, the bank, had a security agreement covering after-acquired property, thereby breaching its obligation of good faith; and
(d) the security interest held by [the Bank] had not been perfected in any of the states where the magnets and accessory equipment were stored at the time of attachment of the security interest.

Ropes has appealed the award of possession of the wire rope to the Bank, and the Bank has appealed the award of the lifting magnets to Coil.

II. THE BANK’S SECURITY INTEREST

The concepts of attachment and perfection of security interests, and the documents which relate to those concepts, have often been confused and intertwined in the litigation of this case. The arguments of some of the parties and the district court’s findings of fact indicate an assumption that the Bank’s security interest, if it existed at all, arose by virtue of the financing statements filed in the Arkansas public records. The function of such financing statements, however, is not to create a security interest but to perfect an interest that has already attached. Fla.Stats. Ann. §§ 679.9-302, -303.

The only security agreement between the Bank and NDS admitted into evidence is a General Pledge Agreement. The financing statement executed the same day covered “All Equipment now owned by, or hereafter acquired, located at, and pertinent to the National Diving Service, Inc., 3006 S. University, Little Rock, Arkansas.” The vendors, Ropes and Coil, have vigorously argued that this financing statement’s description does not include goods shipped directly to Key West, Florida from their plants or warehouses, located variously in Ohio, New York or Louisiana, because those goods were never “located at, and pertinent to” the Arkansas place of business of NDS. This argument would be relevant only if we were concerned with determining whether the Bank’s security interest were perfected or unperfected. The more critical issue is whether the underlying General Pledge Agreement provides a basis for the attachment of a security interest to the magnets and rope upon their acquisition by NDS.

Set forth in the margin are the portions of the General Pledge Agreement upon which the Bank bases its claim that the magnets and rope became collateral for the Bank’s loans and advances to NDS as soon' as they came into the possession of NDS’ Key West operation. The Bank relies particularly upon that part of paragraph two of the Agreement which states: “the said Bank shall also have a lien . . . upon all property of the undersigned of every name and nature whatsoever, delivered to the Bank for safekeeping or otherwise . .” The Bank invites us to interpret this phrase as comprehending a security interest in all property of NDS, including after-acquired goods, regardless of whether such property is in the Bank’s possession or retained in the possession of NDS.

Unfortunately, the posture of this litigation is not ideal for construing the Agreement. One of the parties to it, the pledgor NDS, was not involved in the trial, and there was no testimony from any of its principals as to its intent in making the contract. The Bank has offered no evidence of a course of dealing or usage of trade which would establish under Fla.Stats.Ann. § 671.1 — 205(4) that the General Pledge Agreement means anything other than what it says on its face. We have only a conclusion in the testimony of one Bank officer that the General Pledge Agreement covers the goods involved here, and the fact that a financing statement which was executed simultaneously notices a security interest in “Equipment,” including after-acquired equipment. Although the execution of the financing statement is some indication that NDS intended to assign goods such as the rope and magnets as collateral, the financing statement itself is insufficient to make that assignment. Moreover, the Bank has not contended that the two documents should be read together. Rather, it asserts that under the notice filing system established by the Uniform Commercial Code, Fla.Stats. Ann. § 679.9-402, the financing statement is “only a simple notice which indicates merely that the secured party may have a security interest in the collateral described.” (Emphasis in the Bank’s brief, p. 24.)

Applying Arkansas state law principles regarding rules for the construction of contracts, we must read the General Pledge Agreement as a whole, with the purpose of effectuating the intent of the parties. See United States v. R. D. Wilmans & Sons, Inc., 147 F.Supp. 232 (E.D.Ark.1956), aff’d, 251 F.2d 509 (8th Cir. 1958); United States v. Wooten, 121 F.Supp. 130 (W.D.Ark.1954). We do not find either the particular phrase relied on by the Bank or the language of the General Pledge Agreement as a whole amenable to the interpretation given it by the Bank.

The result sought by the Bank can be reached only by focusing narrowly upon the phrase, “all property of the undersigned of every name and nature whatsoever, delivered to the said Bank for safekeeping or otherwise,” which appears in the latter part of paragraph two. In order to sustain the Bank’s position, we would be required to find either that the words, “all property of the undersigned of every name and nature whatsoever,” are not modified or qualified by the further description, “delivered to the Bank for safekeeping or otherwise,” or that the words “or otherwise” were intended to relate back to “delivered to the Bank,” rather than to “for safekeeping.”

While there is some plausibility in the Bank’s interpretation, it seems to circumvent the context in which the phrase appears. It is certainly just as plausible to find that the phrase was not intended to stand alone, but is limited by the words which follow, and that “or otherwise” refers to “for safekeeping” so that the purpose for which property is delivered to the Bank does not affect the Bank’s interest in the property. Under this construction, this phrase gives the Bank a security interest only in property delivered to it. Thus our examination of the particular language is inconclusive at best and we must examine other parts of the Agreement to see what light is shed upon the phrase that is critical to this litigation.

Significantly, the words “for safekeeping or otherwise” occur again in paragraph four, in a context which makes it difficult to accept the Bank’s argument regarding “or otherwise.” That paragraph provides that under certain conditions,

all indebtedness and liabilities shall at the option of the said Bank become and be immediately due and payable . . . , and the said Bank in such event may thereupon . sell any and all property of [NDS] of every name and nature whatsoever, delivered, conveyed, transferred or assigned to the said Bank as security for any indebtedness or liability of [NDS] to the said Bank, or for safekeeping or otherwise, or coming into the possession of the said Bank, or the possession of any one for it in any manner whatsoever . . . . (Emphasis added.)

In this context, it is apparent that “or otherwise” refers to and enlarges “for safekeeping” rather than “delivered to the Bank.” It is logical to assume that the words were intended to convey the same meaning both times they were used. Bee Willingham v. Life & Casualty Insurance Co. of Tennessee, 216 F.2d 226, 227 (5th Cir. 1954).

Moreover, examining the Agreement as a whole in an effort to determine the intent of the parties, we find that it appears to have two basic purposes. First, it appears to be designed to supplement other credit arrangements between the Bank and NDS, including other security agreements which assign specific property as collateral. The preamble provides: “whenever [NDS] shall become or be . . . indebted to the said Bank for money loaned . . . , the said Bank shall' then and thereafter have the following rights and powers in addition to those created by the circumstances under which such indebtedness or liability may arise against [NDS] . .” (Emphasis added.) The Agreement then goes on to set forth the rights and powers of the Bank over collateral which consists of shares of stock (paragraphs five and six), or life insurance (paragraph eight).

The second principal purpose of the Agreement seems to be to create a security interest in the Bank in all NDS property which is directly or indirectly in the Bank’s possession or control. In paragraph two this is stated as a lien, while paragraph three provides, “any moneys or other property at any time in the possession of said Bank belonging to [NDS] . . . may at all times at the option of said Bank be held and treated as collateral security . . . .” These provisions, particularly paragraph three which clearly applies only to property or assets in the Bank’s possession, are superfluous if paragraph two operates to convey a security interest in all of the assets then owned and thereafter acquired by NDS, as the Bank argues.

Paragraph four also contains language which is unnecessary surplusage if we accept the Bank’s interpretation of the Agreement. There, NDS agrees “at any time and from time to time upon demand of the said Bank to deliver, convey, transfer or assign to the said Bank as security for any and all indebtedness and liabilities of [NDS] to the said Bank, collateral security of a value and character satisfactory to the said Bank it

The Agreement provides in a very detailed and meticulous manner that NDS property in the Bank’s possession shall be loan collateral. The drafters of the Agreement attempted to leave no stone unturned in the description of the possessory nexus which forms the basis of the Bank’s security interest. Thus in the immediate context of the phrase which the Bank relies upon, the Agreement speaks of property “delivered to the said Bank for safekeeping or otherwise, or coming into the possession of said bank, or into the possession of any one for it, in any manner whatsover . .” Elsewhere, the Agreement spells out that moneys and other property in the Bank’s possession, deposits, balance of deposits or other sums credited or due NDS from the Bank may be held as loan collateral. It is inconsistent with this attempted comprehensiveness to assume that the parties would create in a few vague words a security interest in the potentially vast range of property and goods which composes the assets of NDS. For example, it would be an ordinary business caution to specify at least that the security agreement covered both real and personal property, equipment and inventory, wherever located and whether owned by NDS at the time of making the agreement or later acquired.

The language relied upon by the Bank to establish its secured position relative to the magnets and rope simply cannot be read to have the sweeping effect claimed by the Bank. The creation of a security interest in each and every present and future asset of a debtor is by no means an insignificant commercial transaction. Common sense suggests that parties to such an agreement would not make known their intent with a single obscure and ambiguous phrase buried in a much longer document. In the final analysis, the ambiguity in the General Pledge Agreement must be the Bank’s undoing, since it was the party which drafted the Agreement. A document must be construed most strongly against the party which drafted it. Inman v. Milwhite Co., 292 F.Supp. 789, 794 (E.D.Ark.1967); United States v. R. D. Wilmans & Sons, Inc., supra, 147 F.Supp. at 239. The ambiguity therefore cannot be resolved in the Bank’s favor. The Bank failed to establish that the documents executed by NDS gave it a security interest in either the wire ropes or the lifting magnets involved here.

Therefore, that portion of the district court’s judgment awarding the wire rope to the Bank must be reversed. It does not necessarily follow, however, that National Ropes is entitled to possession based on the facts established by this record. Ropes has not appealed the directed verdict against it on its maritime lien claim. The district court correctly found that Ropes’ status is that of an open account creditor. Ropes has weakly asserted on appeal that it has a right to possession by virtue of a vendor’s lien, arising solely because it sold and delivered goods to a purchaser who did not pay for them. This is not sufficient to create a purchase money security interest under Fla.Stats.Ann. § 679.9— 107. Nor has Ropes made any argument that any provisions of Article 2 of the Uniform Commercial Code entitle it to repossess the reels of wire rope. On remand, of course, Ropes may establish that there is a set of facts and a legal theory that entitle it to the right of possession.

III. COIL’S RIGHT TO RECLAMATION

Although Coil, as an open account creditor, was in that fundamental respect situated identically to Ropes, the district court awarded possession of the lifting magnets to Coil, finding Coil’s right to reclaim the magnets to have arisen under Fla.Stats.Ann. § 672.2-702(2), dealing with the buyer’s insolvency, and Fla.Stats.Ann. § 672.2 — 609(4), dealing with the right to adequate assurance of performance.

The record does not support the application of these two Uniform Commercial Code provisions to Coil’s sale of the magnets. Critical to a right to reclaim under Fla. Stats. Ann. § 672.2— 702(2) is the buyer’s receipt of goods while insolvent. Coil produced no evidence that NDS was insolvent when it received either shipment of the magnets. Furthermore, the seller’s demand for reclamation must, under the terms of § 672.2-702(2), be made within ten days of the buyer’s receipt of the goods. Coil did not assert its right to reclaim within the applicable ten day limitation.

Nor may Coil claim the benefit of a written misrepresentation of solvency within three months before delivery of the goods, which would have the effect of dissolving the ten-day limitation for reclamation of the second shipment of magnets.

Between the first and second shipment of magnets, NDS provided Coil with a financial statement pursuant to a telephone request. A Coil officer testified to a later conversation in which an officer of NDS purportedly admitted that the financial statement “was not the true financial picture” of NDS. This hearsay testimony was the only evidence as to the accuracy or inaccuracy of the financial statement. Even accepting that it sufficiently establishes that there was a written misrepresentation, it does not show that NDS was insolvent at the time the misrepresentation was made; hence it cannot be accepted as a written “misrepresentation of solvency” within the meaning of Fla.Stats.Ann. § 672.2-702(2).

The district court’s factual basis for applying Fla.Stats.Ann. § 672.2— 609(4) is not clear. The district court made no finding that Coil had “reasonable grounds for insecurity” with respect to NDS’ performance, Fla. Stats. Ann. § 672.2-609(1), which would have justified a demand for adequate assurance of due performance; nor would the record support such a finding at the time the demand for assurance was supposedly made.

The statute also requires such a demand to be in writing. The letter upon which Coil relies for this purpose is not a demand for adequate assurance, but rather a request that NDS accelerate payment for the first shipment, even though payment was not yet due. There is therefore no factual basis for holding that NDS repudiated the contract by operation of Fla.Stats.Ann. § 672.2-609(4).

The judgment of the district court is reversed and the case is remanded for proceedings not inconsistent with this opinion.

      . Uniform Commercial Code Form 1.

      . Ropes has not appealed this directed verdict.

      . The Bank counters this contention of the vendors with the argument that this description is sufficient under Fla.Stats.Ann. § 679.9-110, which provides that any description of personal property is sufficient, “whether or not it is specific if it reasonably identifies what is described.” The Bank argues that the financing statement’s description is sufficient to suggest a course of inquiry to other creditors. There is a fundamental problem with this argument here, however, because further inquiry by the vendors into the General Pledge Agreement itself would no doubt have led them to conclude, as we have, that it does not comprehend the equipment they were contemplating selling to NDS.

      . Section 679.9-204(1), Fla.Stats.Ann., provides: “A security interest cannot attach until there is agreement (§ 671.1-201(3)) that it attach and value is given and the debtor has rights in the collateral. It attaches as soon as all of the events in the preceding sentence have taken place unless explicit agreement postpones the time of attaching.” We are concerned here about the first of the three requirements set forth in this statute, that there be an agreement that the security interest attach.

      . The first two paragraphs of the General Pledge Agreement provide:
      KNOW ALL MEN BY THESE PRESENTS, That the undersigned, in consideration of financial accommodations given or to be given renewed to or at the request of the undersigned by The First National Bank in Little Rock, Little Rock, Arkansas, do hereby agree with the said Bank that whenever the undersigned shall become or be directly or indirectly or absolutely or contingently indebted or liable to the said Bank for money loaned to or for money paid to or for the use or account of the undersigned, or for any overdraft, or upon any endorsement, draft, bill of exchange, note, guaranty, letter of credit, or other obligation or in open account or in any other manner whatsoever, the said Bank shall then and thereafter have the following rights and powers in addition to those created by the circumstances under which such indebtedness or liability may arise, against the undersigned or its or their successors, heirs, executors, administrators or assigns, namely:
      All property of every name and nature whatsoever, delivered, conveyed, transferred or assigned by the undersigned to the said Bank as security for any such indebtedness or liability of the undersigned to the said Bank, shall also be held by the said Bank as security for any other indebtedness or liability of the undersigned to the said Bank whether now or at anytime hereafter existing, and the said Bank shall also have a lien upon any balance in any deposit accounts of the undersigned with the said Bank from time to time existing, and upon all property of the undersigned of every name and nature whatsoever, delivered to the said Bank for safekeeping or otherwise, or coming into the possession of said Bank, or into the possession of any one for it, in any manner whatsoever as security for any indebtedness or liability of the undersigned to the said Bank whether now or at any time hereafter existing. (Emphasis added.)

      . There is no dispute that the wire rope and lifting magnets fell within the definition of “equipment” contained in Fla.Stats.Ann. § 679.9-109(2).

      . Under Florida choice of law rules, a contract is interpreted in accord with the law of the state where the contract was made, in this case Arkansas. Center Chemical Co. v. Avril, Inc., 392 F.2d 289, 290 (5th Cir. 1968).

      . Section 672.2-702(2), Fla.Stats.Ann. provides:
      Where the seller discovers that the buyer has received goods on credit while insolvent he may reclaim the goods upon demand made within ten days after the receipt, but if misrepresentation of solvency has been made to the particular seller in writing within three months before delivery the ten day limitation does not apply. Except as provided in this subsection the seller may not base a right to reclaim goods on the buyer’s fraudulent or innocent misrepresentation of solvency or of intent to pay.

      . Section 672.2-609, Fla.Stats.Ann., provides:
      (1) . . . when reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance ... (4) After receipt of a justified demand failure to provide within a reasonable time not exceeding thirty days such assurance of due performance as is adequate under the circumstances of the particular case is a repudiation of the contract.