author: ALBERT V. BRYAN, Senior Circuit Judge:

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY et al., Appellees.
    No. 72-2388.
    United States Court of Appeals, Fourth Circuit.
    Argued March 7, 1973.
    Decided April 30, 1973.
    William W. Kehl, Greenville, S. C. (David L. Freeman, Wyche, Burgess, Freeman & Parham, P. A., Greenville, S. C., on brief), for appellant.
    Ernest J. Howard, Greenville, S. C., (Griffin & Howard, Greenville, S. C., on brief), for appellees.

      Before BRYAN, Senior Circuit Judge, and FIELD and WIDENER, Circuit Judges.
   ALBERT V. BRYAN, Senior Circuit Judge:

Appellant, State Farm Mutual Automobile Insurance Company, sought in the District Court a declaration by summary judgment that three automobile liability policies issued by it to the named insureds, John Sam Johnson and Nina Johnson, his wife, did not extend coverage to their daughter, Dorothy Jean Johnson, while driving a “non-owned automobile”. The District Court, 349 F.Supp. 158, found this feature of the policies so ambiguous in meaning as to be of no effect. In consequence, the Court resolved the alleged lack of clarity against the insurer, thus including the daughter within the protection of the policies. We reverse.

The appellant had written these policies upon two automobiles owned by John Sam Johnson and upon one owned by Nina Johnson. On October 17, 1971, Dorothy was involved in an accident when the car which she was driving, and which was not owned by her or her parents, collided with a 1964 -Ford and caused the deaths of all four of the Ford’s occupants.

The provision under interpretation was identical in all of the policies. It stated the indemnity afforded in regard to non-owned cars as follows, with the determinative clause underlined:

“USE OF NON-OWNED AUTOMOBILES
“If the named insured is a person or persons .
“(1) coverages A and B applies [sic] to the use of a non-owned automobile by:
“(a) the first person named in the declarations or,
“(b) his spouse if a resident of the same household, and
“(c) any other person or organization not owning or hiring such automobile, but only with respect to his or its liability for the use of such automobile by an insured as defined in subsections (a) and (b) above. . . .

Fatal ambiguity was seen by the District Judge in section (l)(c)’s giving coverage of a person not owning or hiring the insured automobile “only with respect to his . liability for the use of such automobile by an insured”. The judge reasoned:

“. . . there would be no logical reason for the inclusion of paragraph (l)(c) . . . unless it was intended to extend coverage “A” and “B” to some person other than the named insured and his or her spouse. The first portion of subsection (l)(c), up to the word “but”, appears to do just that. The remainder of this section however, beginning with the word “but”, renders the whole of subsection (1) (c) meaningless, as it limits the coverage of “any other person .” to “his [the other person’s] liability for the use of such [non-owned] automobile by an insured as defined in subsections (a) and (b) above;”, i. e. the named insured and his or her spouse.”

The clause so penalized is less obscure to us. In our construction the offending clause means that the non-owner coverage is only against such liability of a non-owner as might arise from the use of the automobile by the insured, that is, a responsibility imputable to the non-owner by reason of an act of the insured. For example, if the non-owner is the employer or principal of the insured, or stands in any other relation to the insured in which the law would make the non-owner answerable for the insured’s use of the automobile, then only would the non-owner be protected by section (1) (c) of the policy. Here, it does not appear that Dorothy’s collision occurred in the insured’s — her parents’ — use of the non-owned automobile.

This has been the meaning consistently placed upon section (1) (c) and upon its predecessors, which were expressed in substantially the same wording. There has been no deviation from this application of the section’s language, so far as we have discovered. Hamilton v. Maryland Casualty Company, 368 F.2d 768, 773 (5 Cir. 1966); Beasley v. Allstate Insurance Company, 246 S.C. 153, 142 S.E.2d 872 (1965).

As there was no difference between the parties on the facts, and decision rested exclusively on the law question of the correct construction of the policies, the ruling of the District Court will be vacated and the action remanded with directions to sustain the appellant insurer’s motion for summary judgment.

Vacated and remanded with directions.

      . The appellees here — defendants at trial —were the three Johnsons, the personal representatives of those killed in the accident and the owner of the other car in collision.

      . Coverage A provides liability indemnity for bodily injury to another; coverage B provides liability indemnity for damage to property of another.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Henry OBRON, d/b/a Advance Bag and Burlap Company, Plaintiff-Appellant, v. UNION CAMP CORPORATION and Bemis Company, Inc., Defendants-Appellees.
    No. 72-1868.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 6, 1973.
    Decided April 11, 1973.
    Martin J. Adelman, Troy, Mich., for plaintiff-appellant; Allen M. Krass, McGlynn, Reising, Milton & Ethington, Troy, Mich., on brief.
    Edward C. Stringer, St. Paul, Minn., for Bemis Co., Inc.; Briggs & Morgan, St. Paul, Minn., Bodman, Longley, Bogle, Armstrong & Dahling, Detroit, Mich., of counsel.
    Stephen R. Lang, New York City, for Union Camp Corp.; Breed, Abbott & Morgan, New York City, Dahlberg, Mallender & Gawne, Detroit, Mich., of counsel.
    Before WEICK, CELEBREZZE and PECK, Circuit Judges.
   PER CURIAM.

This is an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) from the District Court’s pre-trial order ruling that Appellant passed on to his customers any artificially high prices charged by Appellee Union Camp and that Appellant therefore suffered no damages for purposes of the present treble damage suit under Section 4 of the Clayton Act, 15 U.S.C. § 15. The District Court properly certified the order as involving a controlling question of law warranting this interlocutory appeal under Section 1292(b), and by an order dated July 26, 1972, this Court granted Appellant leave to appeal. The District Court’s Memorandum Opinion is reported at 355 F.Supp. 902.

Appellees are manufacturers of mesh window bags used by vegetable growers to package their products. Appellant is a distributor of these bags manufactured by Appellee Union Camp.

In October 1968 Appellant filed a complaint claiming that he had been injured in his business or property by reason of Appellees’ alleged monopolization and attempts to monopolize in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2, and conspiracy in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. The basis of Appellees’ allegedly illegal conduct is the claim that they maintained and enfoi’ced an invalid patent relating to the manufacture of the window bags, knowing the patent to be invalid.

By agreement of the parties, the District Court made a pretrial determination respecting the applicability of the “passing-on” defense, which, if available to Appellees, would preclude Appellant’s treble damage action. In ruling on this question, the District Court focused on the following undisputed practice of Appellant as a distributor of Appellee Union’s bags:

“[A]fter obtaining an order from a customer for mesh window bags he would submit the order to Union and would be invoiced at Union’s list price less 5%. The bags were ‘drop shipped’, i.e., sent directly from Union to plaintiff’s customer. Plaintiff would bill his customer at Union’s full list price. Thus, whatever price Union imposed on the plaintiff, the plaintiff passed on to his customer plus his 5%.” 355 F.Supp. at 904.

For the reasons set forth in the District Court’s Memorandum Opinion, we agree with the Court’s conclusion that the “passing-on” defense is applicable under the stipulated facts in this suit. Although the Supreme Court’s decision in Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), significantly restricted the availability of this defense, we agree with the District Court’s conclusion that the above method of distribution is comparable to a “preexisting ‘cost-plus’ contract,” under which the Hanover Court suggested the defense might still be applicable. 392 U.S. at 494, 88 S.Ct. 2224. Cf. State of West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079, 1086-1088 (2d Cir. 1971). Indeed, the District Court correctly characterized Appellant’s discount as comparable to a sales commission and observed that “[t]he only reasonable inference is that the plaintiff himself profited by any increase in prices set by defendant Union.” 355 F.Supp. at 906.

We affirm the District Court’s order holding that the “passing-on” defense is valid and applicable under the facts of this case.


text:
    Carl Houston ROBERTS and Roy Malcolm Roberts, Petitioner-Appellants, v. UNITED STATES of America, Respondent-Appellee.
    No. 72-1610.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 16, 1973.
    Decided April 20, 1973.
    Carl Houston Roberts and Malcolm Roberts filed briefs pro se.
    Daniel Bartlett, U. S. Atty., and Wesley D. Wedemeyer, Asst. U. S. Atty., St. Louis, Mo., filed brief for appellee.
    Before LAY and BRIGHT, Circuit Judges, and NICHOL, District Judge.

       Sitting by designation.

   PER CURIAM.

Roy Malcolm Roberts and Carl Houston Roberts, father and son, pursuant to 28 U.S.C. § 2255, appeal from the order of the district court (Judge Regan), 348 F.Supp. 563, denying them relief from their convictions and sentences for assault upon federal officers.

The layman’s brief filed on behalf of appellants raises two issues already considered and found wanting of merit on direct appeal, i. e., that the evidence presented at trial was insufficient to establish guilt, and that appellants were denied their Sixth Amendment right to effective assistance of counsel. Appellants now assert an additional claim that their second trial, which resulted in their convictions, subjected them to double jeopardy in violation of the Fifth Amendment, since appellants’ first trial was improperly aborted while in its third day. We reject these contentions and affirm the determination of the district court.

While the district court opinion clearly demonstrates that appellants’ claims were without merit, we add an additional comment relating to the double jeopardy claim.

The district court aborted the first trial on February 12, 1969, when during cross-examination of defendant Carl Roberts, the prosecutor elicited background information about Carl’s prior felony convictions. Carl’s lawyer, who also represented Roy, moved for a mistrial because of certain comments made by the court. The lawyer representing two other defendants joined in the motion. The trial court then granted the mistrial.

A claim of double jeopardy in violation of the Fifth Amendment does not arise from the later trial of a defendant, following a mistrial declared by the court upon the defendant’s own motion. See United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); United States v. Pappas, 445 F.2d 1194, 1200 (3d Cir. 1971), cert. denied sub nom., Mischlich v. United States, 404 U.S. 984, 92 S.Ct. 449, 30 L.Ed.2d 368 (1971); Houp v. State of Nebraska, 427 F.2d 254, 255 (8th Cir. 1970), cert. denied, 401 U.S. 924, 91 S.Ct. 887, 27 L.Ed.2d 827 (1971); Gregory v. United States, 133 U.S.App.D.C. 317, 410 F.2d 1016, 1018 (1969), cert. denied, 396 U.S. 865, 90 S.Ct. 143, 24 L. Ed.2d 119 (1969); Vacarro v. United States, 360 F.2d 606, 608 (5th Cir. 1966). Gf. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961).

The problem here arises from the joint representation of Carl and Roy by one attorney. The motion for mistrial was not specifically requested on behalf of both defendants and was made while Carl was being questioned about his prior convictions. The request was based upon comments of the court which might be deemed critical of the trial tactics of the attorney. Such comments, if taken as critical of the attorney’s conduct, would seem to taint the proceedings for all parties represented by the attorney. Roy made no objection to his retrial on double jeopardy grounds until this present posteonviction petition. Under these circumstances we think it clearly inferable that counsel’s mistrial request asked for a mistrial for both his clients, Roy and Carl, and that the court granted the request in the interest of all the defendants. See and compare United States v. Walden, 448 F.2d 925, 930 (4th Cir. 1971).

Thus, the record discloses no violation of appellants’ rights under the Double Jeopardy Clause of the Fifth Amendment.

      . The convictions as to these and other defendants were affirmed on direct appeal in United States v. Leach, 429 F.2d 956 (8th Cir. 1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971).

      . The record shows the following:
      Q. (By Mr. Ruzicka [Prosecutor]) How many felonies were you convicted of on that occasion?
      A. [Defendant Carl Roberts] I believe it was two or three. I cleaned the books up for them.
      Q. Two or three?
      A. Yes.
      Q. You mean you co-operated with— is that what you mean?
      A. Yes.
      MR. BRUNTRAGER: [Attorney for Carl and Roy] I object to this, Your Honor, on the grounds this is not proper cross-examination. He is going in an attempt to go behind the convictions.
      THE COURT: Well, he didn’t ask — I don’t recall that you even asked him about this, the convictions, did you?
      MR. BRUNTRAGER: Your Honor, ■ — -will you step up, please?
      (Thereupon the following colloquy ensued among the Court and counsel, at the bench, out of the hearing of the jury:)
      MR. BRUNTRAGER: I object to the Court asking questions of this defense counsel pointing out—
      THE COURT: What I am trying to get at is whether you even asked him about it.
      MR. BRUNTRAGER: I don’t think that was a proper question, but anyway I am objecting to the Court pointing out to the jury by his question that I did not ask him. There was a specific reason for my not asking him. I cannot explain this to the jury, but in any event, inasmuch as the Court has pointed out, that it appears, it must appear to the jury, Your Honor, that I have been hiding this, or attempting to hide it, which is not true, and I would ask that the Court instruct the jury, or admonish the jury to disregard the question asked of counsel, not to place any significance on it, and I would ask that a mistrial he declared.
      MR. GILDEN: [Attorney for two other codefendants] I will join in that.


text:
    Louis GERMANY, Plaintiff, v. The RIVER TERMINAL RAILWAY COMPANY, Defendant-Appellant, and Norfolk & Western Railway Company, Defendant-Cross-Claimant-Appellee.
    No. 72-2095.
    United States Court of Appeals, Sixth Circuit.
    Argued April 2, 1973.
    Decided April 24, 1973.

      Dennis M. Kelly, Cleveland, Ohio, for appellant; George J. Moscarino, Dennis M. Kelly, Kenneth F. Seminatore, Jones, Day, Coekley & Reavis, Cleveland, Ohio, on brief.
    Byron D. Fair, Cleveland, Ohio, for appellee; Byron D. Fair, Thomas V. Chema, Arter & Hadden, Cleveland, Ohio, on brief.
    Before PECK, McCREE and LIVELY, Circuit Judges.
   PER CURIAM.

This case involves an interchange agreement between two railroads. Louis Germany, who is not a party to the appeal, sued The River Terminal Railway (RTR), his employer, and the Norfolk & Western Railway Company (N&W). He recovered a judgment against RTR for injuries caused by a defect in a railroad car of N&W which was under the control of RTR.

In a cross-claim against RTR, the interchange agreement was filed as an exhibit and relied upon by N&W. By a later pleading, RTR, relying on the same agreement, sought to recover one-half the verdict as well as one-half of all costs from N&W. Section 8 of that agreement provided for compulsory arbitration “[I]n case of any disagreement between the parties hereto as to the true construction or meaning of any of the provisions of this agreement, or as to the rights of either party hereunder, or as to any claim arising hereunder . ” The arbitration provisions of the agreement were specifically cited by RTR in a tendered amendment to a pleading in support of its position that the cross-claim of N&W failed to state a claim upon which relief could be granted.

The trial court refused to permit the "filing of the amended pleading which set up the arbitration provisions of the agreement and proceeded to interpret the agreement itself.

The Federal Arbitration Act (9 U.S.C. § 1 et seq.) favors the submission of disputes to arbitration in accordance with the intentions of the parties to an agreement as a means of easing court congestion. Galt v. Libbey-Owens-Ford Glass Co., 376 F.2d 711 (7th Cir. 1967). An agreement to arbitrate may be waived by the actions of a party which are completely inconsistent with any reliance thereon. Burton-Dixie Corp. v. Timothy McCarthy Construction Co., 436 F.2d 405 (5th Cir. 1971). However, waiver may not be inferred from the fact that a party does not rely exclusively on the arbitration provisions of a contract, but attempts to meet all issues raised in litigation between it and another party to the agreement. General Guaranty Insurance Co. v. New Orleans General Agency, Inc., 427 F.2d 924 (5th Cir. 1970).

The District Judge made no finding on the issue of the right of RTR to have the dispute between it and N&W decided by arbitration. Our review of the record convinces us there was no waiver by RTR in the district court proceedings. On appeal RTR has sought to abandon its request for arbitration “in the interest of concluding this dispute as rapidly as possible.” However, the courts are concerned that the salutary results of the policy expressed in the Federal Arbitration Act be realized.

The correct construction of the interchange agreement involved here will necessarily require an understanding of railroad practices and terminology. This can best be achieved by persons familiar with the industry.

The judgment of the district court is vacated and the cause remanded for entry of an order requiring RTR and N&W to submit the issues in dispute to arbitration.


text:
    Thomas A. MOODY, Appellant, v. UNITED STATES of America, Appellee.
    No. 72-1702.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 11, 1973.
    Decided April 20, 1973.
    William D. Sutter, Lincoln, Neb., for appellant.
    William K. Schaphorst, U. S. Atty., and Daniel E. Wherry, Asst. U. S. Atty., Lincoln, Neb., for appellee.
    Before GIBSON, BRIGHT and ROSS, Circuit Judges.
   PER CURIAM.

Thomas A. Moody appeals his conviction, based upon a jury verdict, finding him. guilty of violating the provisions of 18 U.S.C. § 2312 — the Dyer Act. The sole issue on appeal relates to the sufficiency of the evidence. Finding the evidence sufficient, we affirm.

Moody claims on appeal that the Government failed to present sufficient evidence to prove that he transported the stolen auto, or materially assisted in transportation, with knowledge that it was stolen. Moody concedes that the evidence was sufficient to prove the auto was stolen and transported in interstate commerce.

As a preliminary matter we note that the “verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). This principle is of course applicable to Dyer Act cases. See e. g., United States v. Fouchey, 462 F.2d 585, 586 (8th Cir.), cert. denied, 409 U.S. 884, 93 S.Ct. 174, 34 L.Ed.2d 140 (1972). The evidence, viewed in the light most favorable to the Government, may be briefly summarized as follows:

On May 31, 1972, in Houston, Texas, a 1972 auto was stolen. On June 1, 1972, in Auburn, Nebraska, the stolen car was stopped by a Nebraska State Patrolman. Five people were in the auto, including Moody, who was in the back seat of the car. One of the occupants was a hitchhiker who subsequently was released. Moody, after having been informed of his constitutional rights, stated that he knew the ear had been stolen in Houston, but did not know who stole it as it had been parked in front of the place where he resided.

At trial the testimony indicated that three of the occupants of the car and Moody lived together in Houston. Shortly before the car was stolen, the four men decided to go to Chicago, Illinois to seek employment. The alternatives were either to go by bus or “rip off” a car — meaning to steal a car. Moody was present when this last alternative was discussed.

Allen, one of the four men involved here, stole the car in question. He then went to the apartment where the other three lived and picked up Greening and Ondras. The three then went to a friend’s house and picked up Moody. After a six-hour stopover in Dallas, the four proceeded north. During the trip from Houston to Dallas, Greening, Allen and Ondras discussed that the car had been stolen. The three could not remember whether Moody heard .this discussion. Although Moody did not drive the car, Greening testified that Moody purchased gas for the auto. Allen and Moody testified that Moody did not purchase any gas. At trial Moody explained that he thought the car had been loaned to Allen and indicated that he discovered the car was stolen just shortly before he was apprehended in Nebraska.

. First, we think the evidence was sufficient to prove guilty knowledge. Shortly before the car was stolen Moody was present when the possibility of stealing a car was discussed so as to provide transportation for the four to Chicago. Moreover, Moody gave contradictory explanations with regard to how the four came into contact with the auto. When he was arrested Moody stated that the 1972 auto was abandoned in front of the men’s residence, but at trial Moody claimed that Allen had told him the auto had been loaned to Allen. This evidence also tended to prove guilty knowledge.

Second, the evidence is also sufficient to prove ¡that Moody was in joint possession of the auto thus proving the element of transportation. Aside from the fact that there was evidence that Moody had been present when the parties discussed stealing a car and then jointly using it for transportation [which is exactly ¡what happened], there is direct evidence that' Moody paid for some of the gasoline expenses. This Court, Baker v. United States, 395 F.2d 368, 369 (8th Cir. 1968), as well as, other courts, Thomas v. United States, 409 F.2d 730, 732 (10th Cir. 1969); Lawrence v. United States, 400 F.2d 624, 626 (9th Cir. 1968), have indicated, directly or indirectly, that the payment of gasoline expenses is an important consideration in determining whether a defendant may be said to be in possession of an auto for the purpose of determining the element of transportation. ■ Moody claims that the evidence is insufficient because there was a conflict with Greening testifying that Moody did pay for gas, while Allen, also the Government’s witness, and Moody testified that Moody did not pay for gas. In essence, Moody attacks the credibility of Greening, indicating that Greening smoked marijuana during the trip. However, as we have recently said, in another Dyer Act case, “The credibility of the government witness is solely within the province of the jury.” United States v. Miles, 472 F.2d 1145, 1146 (8th Cir. 1973). Although the contradiction weakened the proof, it did not render the evidence insufficient.

For the reasons hereinbefore expressed, the judgment of conviction is affirmed.


author: PER CURIAM;

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael W. McCOY, Defendant-Appellant.
    No. 72-3097
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 25, 1973.
    Tabor R. Novak, Jr., Montgomery, Ala. (court appointed), for defendant-appellant.
    Ira DeMent, U. S. Atty., David B. Byrne, Jr., Asst. U. S. Atty., Montgomery, Ala., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM;

Michael W. McCoy appeals from the district court’s decision denying his motion to withdraw his guilty plea. We affirm.

On February 23, 1972, McCoy was indicted by a federal grand jury on a charge of false registration in violation of 18 U.S.C. § 1341. After a hearing, the district court denied McCoy’s motion to suppress certain evidence. On April 21, McCoy entered a plea of not guilty. He then filed several motions attacking the district court’s decision and the credibility of certain witnesses who testified at the suppression hearing. The court later denied each of these motions. On June 19, McCoy withdrew his plea of not guilty and entered a plea of guilty to the first count in the indictment. After the court accepted the plea, the government dismissed the remaining charges. The court then directed that McCoy be committed under 18 U.S.C. § 5010(e) for a period of 60 days for study and observation.

On August 15, McCoy filed a motion to withdraw his guilty plea. The court denied the motion after a hearing and on August 30 sentenced McCoy to an indeterminate sentence under 18 U.S.C. § 5010(b). McCoy appealed.

There is no absolute right to withdraw a guilty plea before imposition of sentence, Kirshberger v. United States, 5 Cir. 1968, 392 F.2d 782, or after imposition of sentence, United States v. McDaniel, 5 Cir. 1970, 425 F.2d 813. The decision to grant such a motion is left to the sound discretion of the trial court. Rimanich v. United States, 5 Cir. 1966, 357 F.2d 537.

McCoy argues that his guilty plea was entered with reluctance, that he lacked confidence in his attorney, that perjured testimony was offered against him, and that the facts relevant to his plea are disputed. In response, the government asserts that the district court’s order committing McCoy under 18 U.S.C. § 5010(e) for a period of study and observation constitutes an imposition of sentence and that under rule 32(d) of the Federal Rules of Criminal Procedure, withdrawal of a guilty plea should be allowed only to correct a manifest injustice.

We need not decide whether commitment under section 5010(e) constitutes imposition of sentence within the meaning of Rule 32(d) since we find that, even assuming the motion was made before sentencing, the district court did not abuse its discretion in denying the motion. The record shows that before accepting McCoy’s guilty plea the trial court carefully inquired into the factual basis for the plea and concluded that it was voluntarily and knowingly made. McCoy was represented by court-appointed counsel who also advised him of his rights. When McCoy filed the motion to withdraw his guilty plea, the court held another hearing to inquire into the basis for the motion and to permit him to advance any argument in support of his position. The court concluded that the motion should be denied. We cannot say that the trial court abused its discretion in so deciding.

McCoy also raises several questions concerning the district court’s refusal to suppress certain evidence. These issues, however, are clearly non-jurisdictional and were effectively waived by McCoy’s guilty plea. Ortega-Velasquez v. United States, 5 Cir. 1972, 465 F.2d 419.

The decision of the district court must therefore be affirmed.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. James W. ROSS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Sylvester SAIN, Defendant-Appellant.
    Nos. 72-1793, 72-1794.
    United States Court of Appeals, Sixth Circuit.
    Submitted Feb. 14, 1973.
    Decided April 25, 1973.

      James L. Feinberg, court appointed, Detroit, Mich., on brief, for defendant-appellant Ross.
    Emmett S. Long, Detroit, Mich., on brief, for defendant-appellant Sain.
    Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., on brief, for plaintiff-appellee.
    Before PHILLIPS, Chief Judge, KENT, Circuit Judge, and McALLISTER, Senior Circuit Judge.
   PER CURIAM.

Defendants were both convicted of bank robbery and murder, in a jury trial before Judge Theodore Levin. The testimony consisted of that of an accomplice and of several of the bank tellers. Both defendants seek reversal because of the Judge’s alleged refusal to ask certain questions on voir dire, particularly one which asked the jurors if they had any racial prejudice. Both defendants were black; the murdered man was white. There is nothing in the record to indicate that the questions were submitted by the defense counsel or, if they were submitted, in what form they were submitted.

Defendant Ross raises both the issue of the sufficiency of the evidence and the issue relating to the voir dire question. Defendant Sain raises only the voir dire issue.

As for the sufficiency question, the law of this Circuit is clear that accomplice testimony alone would be sufficient to convict. United States v. Haynes, 403 F.2d 54, 55. Of course, in this case more than uncorroborated accomplice testimony was introduced. It should also be noted that the defendant made no motion for acquittal at the conclusion of either the Government’s or defendant’s proof. This precludes raising the sufficiency issue on appeal. United States v. Broadnax, 346 F.2d 119.

As for the voir dire issue, the only evidence before this Court is the affidavit of the defense attorney that he asked the Judge to submit certain questions to the jury. The questions are not in the record at any point. As the Government points out, this Court can hardly rule without the questions being in the record. It has been held by this Circuit that the responsibility for having such off-the-record colloquys recorded stenographically lies with the defense counsel. Cox v. General Electric Company, 302 F.2d 389, 390. The exact form of the questions would be crucial in this situation. The fact that Judge Levin is now dead should also be taken into consideration. The lack of a record precludes review of this issue.

As to the refusal of the trial court to make inquiry of the jurors on voir dire as to possible prejudice arising from the fact that a defendant is a Negro, after timely request therefor, such refusal would be a denial of defendant’s right to a fair trial, in violation of the Due Process Clause of the Fourteenth Amendment. See Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed. 2d 46, decided January 17, 1973.

There having been no request made for such inquiry by the Court during the course of the trial, this issue is not before us.

The judgments are affirmed.


author: PER CURIAM:

text:
    Estelle BENANTE, As Surviving Wife of Carl Benante, Deceased, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, etc., Defendant-Appellee.
    No. 72-3648
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 2, 1973.
    Rehearing Denied June 11, 1973.
    Richard I. Kroop, Miami Beach, Fla., for plaintiff-appellant.
    Anthony Reinert, David L. Willing, Miami, Fla., for defendant-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

This Florida diversity case turns on the construction of the term “injury” as employed in a policy of accidental death and dismemberment insurance. The District Court held that, under the controlling Florida case law, the heart attack suffered by plaintiff’s decedent after running to catch a scheduled airplane flight did not constitute “bodily injury caused by an accident” within the meaning of the policy and therefore denied recovery. We affirm.

The case was submitted to the District Court upon these stipulated facts:

1. The Decedent, CARL BEN-ANTE, was a policy holder of ALLSTATE INSURANCE COMPANY Certificate No. 386 421 150, which policy was in force on July 20, 1971. Said policy is an accidental death and dismemberment insurance and a true copy of same is attached to the Complaint.
2. That on July 20, 1971, CARL BENANTE, now deceased, and his sister ANTONINA QUARTUCCIO, were in the Rome Airport awaiting their flight to New York. Both passengers had their tickets validated and were told by an Alitalia attendant to go to Gate 6 to catch their plane.
3. CARL BENANTE, now deceased, was carrying two handbags weighing approximately five pounds each.
4. Upon their arrival at Gate 6, both passengers were told by the attendant there that their Flight No. 610 was not at Gate 6, but at Gate 1, and that they should hurry to Gate 1 to catch the plane because the plane was about' to depart.
5. Both passengers ran very fast to Gate 1 in order not to miss their flight. Upon their arrival at Gate 1, both were out of breath and exhausted. Upon their arrival at the gate, they were driven by bus to the aircraft. Both passengers were out of breath as they alighted from the bus and started climbing the steps from the ground to the entrance of the plane.
6. Both passengers proceeded to go down the aisle to their seats and approximately half the length of the plane, CARL BENANTE, now deceased, started to fall backwards. He was caught by the stewards and placed in the nearest seat. As soon as he was seated, he died instantly.

Under the terms of the Certificate of Insurance, Allstate Insurance Company promised to pay the insured’s beneficiary $125,000 if the insured died as a result of an accidental injury. According to the certificate,

“Injury” means bodily injury caused by an accident occurring while the insurance is in force and which injury results, within 365 days after the date of the accident, directly and independently of all other causes, in any of the losses to which the insurance applies.

Phrased most precisely, the question upon which recovery depends is whether a heart attack that follows voluntary physical exertion constitutes an accidental bodily injury.

Under Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), federal courts in diversity of citizenship eases must apply the law of the state in which they sit. Moreover, a federal court must follow the decision of an intermediate appellate state court in the absence of other persuasive indications that the highest court of the state would decide otherwise. Six Companies of California v. Joint Highway District, 311 U.S. 180, 61 S.Ct. 186, 85 L.Ed. 114 (1940); West v. American Tel. & Tel. Co., 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139 (1940); Stoner v. New York Life Ins. Co., 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284 (1940); Fuchs v. Harbor Island Spa, Inc., 420 F.2d 1100 (5th Cir. 1970); 1A J. Moore’s Federal Practice ¶ .307 [1] (2d ed. 1965). Only where no state court has decided the point in issue may a federal court make an educated guess as to how that state’s supreme court would rule. See Trail Builders Supply Co. v. Reagan, 409 F.2d 1059 (5th Cir. 1969).

In the case before us, the District Court concluded, and we agree, that a Florida court of appeal has decided the question in favor of the appellee insurance company. In Goldstein v. Paul Revere Life Insurance Co., 164 So.2d 576 (Fla.App.), cert. denied, 170 So.2d 587 (Fla.1964), the Florida District Court of Appeal for the Third District said:

“The question of whether a heart attack which follows exertion is within the terms of an insurance policy insuring against accidental bodily injury, has been the subject of much litigation with many conflicting results. Insofar as Florida is concerned, however, this is a question of initial impression, and we must look to the decisions of our sister states for their experience in regard to this problem.
The states are relatively evenly divided, numerically, between those that hold such a factual situation to be accidental injury and those that reach an opposite result. The ratio decidendi of those courts which hold a strain-induced heart attack to be accidental, reason that the activity’s (lifting, pushing, pulling, etc.) result (heart attack) was unforeseeable, unintentional, unlikely and therefore ‘accidental’ as opposed to intentional.
On the other hand, those states which adopt the opposite view argue two ways. First they say that the heart attack resulted from a voluntary act, i. e., lifting, pulling, straining, etc., and although the result is unexpected it does not diminish the voluntariness of the act. A planned event (lifting a plank) which results in an unexpected manner is not such a non-intentional act as to constitute an accident. Secondly, it is argued that accident, as all other terms, should be defined and given their everyday ‘man-on-the-street’ understood meaning. An accident is usually thought to be an external physical injury as opposed to a disease. It is the opinion of this court that the rule adopted by those courts, holding a heart attack resulting from strain is not an accident or accidental bodily injury, is the sounder proposition.”

164 So.2d at 577-578.

Being Erie-bound, the District Court was correct in applying the Goldstein rule that a heart attack resulting from strain is not an accident or accidental bodily injury.

Affirmed.


text:
    Ramon A. TORRES, Petitioner-Appellant, v. STATE OF FLORIDA, Respondent-Appellee.
    No. 73-1461
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 7, 1973.

      Ramon A. Torres, pro se.
    Barry Scott Richard, Asst. Atty. Gen., Miami, Fla., Robert Shevin, Atty. Gen., Joel D. Rosenblatt, Asst. Atty. Gen., Tallahassee, Fla., for respondent-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

Petitioner Torres alleges that his constitutional right to a speedy trial was denied by the State of Florida because of a seventeen month delay between original arrest and trial. The United States District Court for the Southern District of Florida dismissed the peti-. tion for habeas corpus relief. We affirm.

There are four basic factors to be weighed when considering the claim 'of a prisoner that he was denied a speedy trial: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 38 L.Ed.2d 101 (1972); Arrant v. Wainwright, 5 Cir. 1972, 468 F.2d 677.

Our evaluation of these criteria in light of the factual situation presented by this petitioner leads us to the overwhelming conclusion that the right was not denied. We find that the delay in this case can clearly not be charged to the state. First, the state’s principal witness, a police officer, was unavailable for trial for a substantial period because of four gunshot wounds which he received as the result of the alleged criminal acts for which this petitioner was to be tried. More importantly, much of the delay herein was the result of various legal initiatives undertaken by petitioner and his counsel. In addition to motions which required the refiling of charges, petitioner sought a writ of prohibition in the Florida courts in an effort to prevent his trial. Following the denial of this writ, State ex rel. Torres v. Baker, Fla.App.1971, 247 So.2d 114, the state brought petitioner to trial within four months. It would be extremely difficult to charge the state with failure to try an accused while the accused is himself seeking a writ to prohibit such a trial. We also find that these actions are inconsistent with petitioner’s repeated demands for a speedy trial. While motions denominated such may have been filed, their significance is highly questionable in light of the other efforts which were directed at prohibiting trial. These factors alone seem sufficient in this case to deny relief.

We would also like to note that only the most tenuous claims of prejudice have been suggested by this petitioner. In the original petition for habeas corpus relief, there were no allegations of any prejudice whatsoever. Petitioner has suggested in his brief that two unnamed and otherwise unidentified individuals who would have been available to bolster some unspecified alibi were no longer in the state because of the delay. We agree with the trial court that the prejudice involved in this case was so insignificant as to justify little or no weight.

For reasons set forth above, the dismissal of the habeas corpús petition filed by Torres is

Affirmed.


text:
    Lois G. POPE, Plaintiff-Appellant, v. TRAVELERS INSURANCE COMPANY, Defendant-Appellee.
    No. 72-1705.
    United States Court of Appeals, Fifth Cricuit.
    April 25, 1973.
    Robert A. Pritchard, Jackson, Miss., James E. Sandusky, Meridian, Miss., for plaintiff-appellant.
    John Roach, Jackson, Miss., for defendant-appellee.
    Before JOHN R. BROWN, Chief Judge, and WISDOM and AINSWORTH, Circuit Judges.
   PER CURIAM:

In this diversity action, the plaintiff, Lois G. Pope, sued Travelers Insurance Company for the sum of $40,000 allegedly due her as the named beneficiary of an insurance policy. Travelers defended primarily on the ground that the insured, Mrs. Pope’s deceased husband, had committed suicide, a risk not covered by the policy. The jury found that the insured had intentionally taken his own life and therefore denied recovery on the policy. Mrs. Pope appeals.

The sole issue on appeal concerns the district court’s decision to admit into evidence a certified.copy of the insured’s death certificate. On the face of the certificate was a statement by the coroner that the immediate cause of Pope’s death was a self-inflicted gun shot wound and that Pope had committed suicide. The appellant contends that the admission of the death certificate was improper because the coroner’s statement invaded the province of the jury and attempted to find facts that were for determination by the jury alone.

The parties agree that the certificate is inadmissible under the law. of the forum state, Mississippi. The appellant argues that the certificate is also inadmissible under federal law, specifically the Federal Business Records Act, 28 U.S.C. § 1732. In brief, the appellant asserts that since the coroner’s opinion would have been inadmissible if proffered on oral examination, it cannot be made admissible because included in an official document.

Our review of the authorities reveals a division of opinion on this question. Compare Charleston National Bank v. Hennessy, 5 Cir. 1968, 404 F.2d 539 with McCormick, Evidence § 294 and cases cited therein and Rules 401, 402, 704, 803(6), (8), and (9) of the proposed Rules of Evidence for the United States Courts and Magistrates (1972). We need not pause on this issue, however, since we find that the district court’s error, if any, was harmless. F.R.Civ.P. 61. Without regard to the death certificate, the evidence was overwhelming that the insured committed suicide. The record indicates that the circumstances surrounding the insured’s death were inconsistent with an accident. Furthermore, several witnesses, including the investigating police officer, testified that Mrs. Pope and her mother had stated that the insured threatened suicide on the date of his death. Finally, the trial court instructed the jury that it was not to place any special weight on the coroner’s conclusion but was to consider it along with the other evidence. In these circumstances, we are convinced that any possible error was harmless and that the verdict of the jury must be affirmed.

Affirmed.


author: VAN SICKLE, District Judge.

text:
    UNITED STATES of America, Appellee, v. James PATTERSON, Appellant.
    No. 72-1694.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 15, 1973.
    Decided April 19, 1973.

      Clark L. Holmes, Des Moines, Iowa, filed brief for appellant.
    Alan L. Donielson, U. S. Atty., Des Moines, Iowa, filed brief for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and VAN SICKLE, District Judge

       District of North Dakota, sitting by designation.

   VAN SICKLE, District Judge.

Appellant in this case was indicted on 14 counts of stealing United States Treasury checks in violation of 18 U.S.C. § 1708, and 14 counts of forging endorsements on United States Treasury checks in violation of 18 U.S.C. § 495. 3 counts were dismissed during the trial and he was convicted, by a jury, of the remaining 25 counts.

Appellant contends:

1. That there was a failure of proof that these checks were placed in the United States mails, and
2. That the indictment was fatally defective in that it charged theft from a “mail carrier” when the proof was all to theft from a mail box.

As to point one above, the Government introduced at the trial, without objection, proofs of mailing of the cheeks in question, [Tr. p. 198, Ex. 17, 18 and 19]. This proof is adequate under the rule of this Court in United States v. Mooney, 417 F.2d 936 [8th Cir. 1969].

As to point two, the Supreme Court said in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 631, 79 L.Ed. 1314 [1935]:

“No variance ought ever to be regarded as material where the allegation and proof substantially correspond, or where the variance was not of a character which could have misled the defendant at the trial.”

Also see United States v. Schrenzel, 462 F.2d 765 [8th Cir. 1972],

As a general rule, defects or imperfections in an indictment will not constitute a ground for reversal where they had no tendency to prejudice an accused or to deprive him of any substantial rights. That rule has been applied where, although one or more of the counts were insufficient or defective, the sentence imposed was within that authorized on the good count or counts.

In Marteney v. United States [218 F.2d 258 (10th Cir. 1954) cert. denied 348 U.S. 953, 75 S.Ct. 442, 99 L.Ed. 745], there was a conviction on 29 counts of theft of grain, with five year sentences on each to run concurrently. There, the conviction was not upset for failure of the first 28 counts to allege willfulness, where the 29th count was coneededly sufficient, and the total sentence imposed did not exceed that which might lawfully have been imposed under that count because the defendant was not prejudiced thereby.

Counsel for the defendant admittedly had disclosure of the entire file of the United States. The defendant also had the advantages of an Omnibus PreTrial Conference. The Government’s trial brief, filed prior to trial, states, on page 4:

“The Government’s proof will not show that the mail was taken from a mail carrier, but rather from a letter box or mail receptacle.”

• Also, the 14 counts of forging the Treasury checks are concededly sufficient, and the sentence imposed, five years on each count to run concurrently, did not exceed that which might have been imposed under any one of those 14 counts, [18 U.S.C. § 495], or under any one of the theft counts, [18 U.S.C. § 1708].

Defendant having failed to show that prejudice resulted from the conviction on the 14 counts of possession of stolen checks from the mail, and having been convicted without error on 14 counts of forgery, and sentenced' concurrently on all;

The conviction is affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jorge PALACIO et al., Defendants-Appellants.
    No. 72-3393
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 27, 1973.

      George B. Weires, Miami, Fla., court-appointed, for Palacio.
    Martin Light, Brooklyn, N. Y., for Perez.
    Melvyn Kessler, Miami, Fla., for Cardenas.
    Robert W. Rust, U. S. Atty., Harold F. Keefe, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.

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

   PER CURIAM:

The appellants here were involved in the alleged importation by boat into the United States through Miami, Florida, of approximately 3,625 pounds of marijuana. Their appeal is joint although each has separate counsel.

Appellant Perez was convicted under 21 U.S.C.A., § 963 of conspiring to violate Title 21 U.S.C.A., § 952(a); and also on the substantive charge of illegal importation of marijuana in violation of Title 21 U.S.C.A., § 952(a). The evidence was sufficient as to each of the counts. There is no merit in the claim that the jury system in the United States District Court for the Southern District of Florida is unconstitutional. United States v. Pentado, 5 Cir., 1972, 463 F.2d 355; United States v. Blair, 5 Cir., 1972, 470 F.2d 331; United States v. Gooding, 5 Cir., 1973, 473 F.2d 425. Nor is there merit in the additional claim that the trial court abused its discretion in allowing the jury to separate after having begun its deliberation. Tyler v. United States, 5 Cir., 1968, 397 F.2d 565.

Appellant Palacio was convicted on the conspiracy count in connection with the same marijuana transaction. His assignments of error are precisely those of Perez and are likewise without merit.

Cardenas appeals from his plea of guilty to possessing marijuna in violation of 21 U.S.C.A. § 841(a)(1), on the single ground that the statute is unconstitutional. This ground is without merit. United States v. Lopez and Llerena, 5 Cir., 1972, 459 F.2d 949; United States v. Mather, 5 Cir., 1972, 465 F.2d 1035.

The convictions are Affirmed.


text:
    George R. ENTREKIN, Plaintiff-Appellant, v. Caspar W. WEINBERGER, Secretary, Health, Education and Welfare, Defendant-Appellee.
    No. 73-1419
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 15, 1973.

      Leonard A. Blackwell, Gulfport, Miss., for plaintiff-appellant.
    Robert E. Hauberg, U. S. Atty., L. A. Smith, III, Asst. U. S. Atty., Jackson, Miss., for defendant-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

Mr. Entrekin appeals from the denial of a period of disability or disability insurance benefits under the Social Security Act, 42 U.S.C.A., § 405(g). As usual, the question is whether the decision of the Secretary, affirmed by the District Court, is supported by substantial evidence. In our view, the issue is close, but we cannot retry factual issues here.

Mr. Entrekin has a severe case of diabetes from which he has suffered for nearly thirty years. Both the Veterans Administration and the United States Civil Service Commission, in the application of their standards, have held that he is totally disabled. Nevertheless, there is medical evidence that Mr. Entrekin’s diabetic condition responds well to proper diet and treatment. The disease, after thirty years, has caused little damage to other bodily functions. A depressive reaction, without psychosis, caused by the accidental drowning of the claimant’s wife, also responds to ordinary tranquilizers. A disability of the hand could, according to the medical evidence, be corrected by surgery.

Had we decided the case in the first instance we might have been inclined to hold for Mr. Entrekin. Congress, however, has seen fit to confer that function solely upon the Secretary, subject only to the substantial evidence rule.

Since there is substantial evidence upon which the Secretary could find as he did, we are without the authority to exercise appellant interference.

The judgment of the District Court is

Affirmed.


text:
    Dallas E. WEST and Frances P. West, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
    No. 72-1168.
    United States Court of Appeals, Fifth Circuit.
    April 27, 1973.
    Rudy M. Groom, Melvin M. Engel, Houston, Tex., for plaintiffs-appellants.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Tax Div., Dept. of Justice, Washington, D. C., Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., Howard A. Weinberger, Richard Farber, Attys., Washington, D. C., Tax Div., Dept. of Justice, for defendant-appellee.
    Before TUTTLE, WISDOM and SIMPSON, Circuit Judges.
   PER CURIAM:

The judgment is affirmed for the reasons stated in the opinion of Judge Carl O. Bue, Jr., 332 F.Supp. 1102 (S.D.Tex. 1971), upholding the determination of the Commissioner that the taxpayers derived alimony income in the years 1961-1964 in the amount of $912.23 a month. 26 U.S.C. § 71. The decision of the district court was based on its finding that the evidence compelled its holding:

[T]he parties, as represented by counsel, agreed upon monthly payments to be made for Mrs. West’s support, and maintenance, in an amount reflective both of the plaintiff’s need,and of the extreme difficulty and expense of trying to determine the exact value of the jointly acquired property at the date of divorce. Plaintiffs have not shown by a preponderance of the evidence that a property settlement was intended. Accordingly, under the evidence persuasive to this Court and the applicable law, the periodic payments to the wife are construed as alimony and, therefore, are includable in her taxable income for the years in question.

This is a narrow holding, one confined to the facts presented below.

The district court’s determination not to segregate alleged property settlement payments from alimony payments was consistent with the court’s decision that the parties intended all of the periodic payments as payments in lieu of alimony.

The district court did not err in its rulings on the admissibility of evidence offered by the parties.

The judgment is affirmed.


text:
    Graham L. BLAIR, Plaintiff-Appellant, v. DELTA AIR LINES, INC., Defendant-Appellee.
    No. 72-2602.
    United States Court of Appeals, Fifth Circuit.
    June 5, 1973.
    Richard W. Aschenbrenner, Miami, Fla., for plaintiff-appellant.
    David S. Batcheller, W. O. Mehrtens, Jr., Miami, Fla., for defendant-appellee.
    Before WISDOM, GEWIN and COLEMAN, Circuit Judges.
   PER CURIAM:

For reasons adequately stated in the opinion of the district court, 344 F.Supp. 360 (S.D.Fla.1972), the judgment is affirmed. See also 344 F.Supp. 367 (S.D. Fla.1972).


text:
    A. C. RENT-A-CAR, INC., Plaintiff-Appellant, v. The AMERICAN NATIONAL BANK & TRUST COMPANY OF MOBILE et al., Defendants-Appellees, The CURRY CORPORATION, Plaintiff-Appellant, v. The AMERICAN NATIONAL BANK & TRUST COMPANY OF MOBILE et al., Defendants-Appellees.
    No. 72-2380.
    United States Court of Appeals, Fifth Circuit.
    June 8, 1973.
    Frederick O. Scheske, Miami, Fla., for plaintiff s-appellants.
    Mayer W. Perloff, Oliver J. Latour, Jr., Harry H. Riddick, Mobile, Ala., for defendants-appellees.
    Before WISDOM, DYER and INGRAHAM, Circuit Judges.
   PER CURIAM:

This Court having carefully reviewed the evidence presented to the district court below sitting without a jury, we find the district court’s memorandum of Findings of Fact and Conclusions of Law, 339 F.Supp. 506, to be correct, and the judgment is hereby

Affirmed.


text:
    LOCAL UNION NO. 626 OF the UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO, Appellant, v. DELAWARE CONTRACTORS ASSOCIATION, INC., a Delaware Corporation.
    No. 72-1845.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) May 22, 1973.
    Decided May 23, 1973.
    John Merwin Bader, Bader, Dorsey & Kreshtool, Wilmington, Del., Leonard M. Sagot and Thomas W. Jennings, Ettinger, Poserina, Silverman, Dubin, Ana-pol & Sagot, Philadelphia, Pa., for appellant.
    Vincent J. Arpuzzese, and Frank A. Mastro, Apruzzese & McDermott, Springfield, N. J., for appellee.
    Before KALODNER, ALDISERT and ADAMS, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

This appeal presents the question whether the vacation plan of the appellant Local No. 626 of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, violates the provisions of § 302 of the Labor Management Relations Act of 1947, 29 U.S.C. § 186. We are persuaded by the reasoning of Judge James L. Latchum, 344 F.Supp., 1281 (D.Del.1972), that the plan did violate the statute. See also, Mechanical Contractors Association of Philadelphia, Inc. v. Local Union 420, 265 F.2d 607 (3d Cir. 1959).

The judgment of the district court will be affirmed.


text:
    William H. CONNELLY, Plaintiff-Appellee, v. AMERICAN SECURITY CARD CORPORATION et al., Defendants, Andrew C. Sandell and Frank Adamson, Defendants-Appellants.
    No. 72-3651
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 6, 1973.
    Craig R. Goodman, A. J. Block, Jr., Atlanta, Ga., for Sandell.
    Frank Adamson, pro se.
    Hugh G. Head, Jr., Howard H. Johnston, Atlanta, Ga., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

We are convinced that the evidence fully supports the district court’s findings that appellants Adamson and Sandell made false and fraudulent misrepresentations to appellee Connelly, to his detriment, including the false statement that his check would be held in escrow and would be refundable as agreed in the contract between the parties. We likewise agree that the items of damages and attorney’s fees were correctly assessed by the trial judge.

Affirmed.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. L. B. FOSTER COMPANY, Respondent.
    No. 73-1183
    Summary Calendar.*
    United States Court of Appeals, Fifth Circuit.
    May 31, 1973.
    Elliott Moore, Acting Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Clifford Potter, Director, Region 23, N.L.R.B., Houston, Tex., for petitioner.
    Louis B. Paine, Jr., Houston, Tex., for respondent.
    William N. Wheat, Houston, Tex., for Shopmen’s Local Union No. 694 of the Int. Assn, of Bridge, etc. Workers, intervenor.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.
   PER CURIAM:

Pursuant to section 10(e) of the National Labor Relations Act of 1947, 29 U.S.C. § 160(e) (1971), the National Labor Relations Board seeks enforcement of an order compelling L. B. Foster Company to bargain with Shopman’s Local Union No. 694, which was certified as the bargaining representative of certain employees. In the election there were 10 votes cast for the Union and 8 votes against the Union. At issue on appeal is the validity of the Board’s determination that five employees were ineligible to vote because they were supervisors within the meaning of section 2(11), 29 U.S.C. § 152(11) (1971). The facts of this case are similar to National Labor Relations Board v. Houston Natural Gas Corporation, 5 Cir., 1973, 478 F.2d 467, where the Board expressed an opposite view and we agreed that the employees were not supervisors. Finding the present case indistinguishable from Houston Gas, we conclude that the employees were not supervisors and therefore their votes should have been counted.

Enforcement denied.


text:
    Leon ROBBINS and Jimmy Tillman, Petitioners-Appellants, v. C. Murray HENDERSON, Warden, Respondent-Appellee.
    No. 73-1465
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 6, 1973.
    Leon Robbins and Jimmy Tillman, pro se.
    Ragan D. Madden, Dist. Atty., 3rd Judicial Dist., Ruston, La., William J. Guste, Jr., Atty. Gen., Baton Rouge, La., for respondent-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

It is ordered that this appeal be, and it is hereby, dismissed for want of jurisdiction, due to appellants’ failure to file timely their notice of appeal. Rule 4(a), F.R.A.P.; Tribbitt v. Wainwright, 5th Cir. 1972, 462 F.2d 600.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. David Ross HESBETT, aka William George McIver, Defendant-Appellant.
    No. 73-1737
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 6, 1973.
    Frank C. Fariss, Houston, Tex. (Court Appointed), for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Robert Darden, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

In conformity with the requirements established by Anders v. California, 1967, 386 U.S. 738, 87 S.Ct. 1396, 18 L. Ed.2d 493, we have carefully considered this cause in its entirety, and conclude that there is no arguable merit in the appeal. It is therefore ordered that the motion filed by Frank C. Fariss for leave to withdraw as court-appointed counsel for appellant is granted; the appellant’s pro se motion for appointment of new counsel is denied; and the appeal is dismissed. See Local Rule 20. See also United States v. Minor, 5 Cir. 1971, 444 F.2d 521; United States v. Crawford, 5 Cir. 1971, 446 F.2d 1085.


text:
    UNITED STATES of America, Plaintiff-Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant-Appellee.
    No. 71-2245.
    United States Court of Appeals, Ninth Circuit.
    June 1, 1973.
    Richard A. Scully, Washington, D. C. (argued), Dean C. Smith, U. S. Atty., Carroll D. Gray, Asst. U. S. Atty., Spokane, Wash., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Crombie J. D. Garrett, John J. McCarthy, John M. Dowd, Tax Div., Dept. of Justice, Washington, D. C., for plaintiff-appellant.
    Richard C. Fields (argued), of Moffatt, Thomas, Barrett & Blanton, Boise, Idaho, Eugene I. Annis, of Myers, Reiley & Annis, Spokane, Wash., for defendantappellee.
    Before KILKENNY and GOODWIN, Circuit Judges, and BELLONI, District Judge.

       Honorable Robert C. BeUoni, United States District Judge, District of Oregon, sitting by designation.

   PER CURIAM:

The judgment of the district court, denying plaintiff’s motion for summary judgment and granting defendant’s motion for summary judgment is affirmed for the reasons given therein, as reported in 328 F.Supp. 69 (E.D.Wash.1971).

Affirmed.