text:
    UNITED STATES of America, Plaintiff-Appellee, v. Billy Ray HUFF, Defendant-Appellant.
    No. 74-2834.
    United States Court of Appeals, Fifth Circuit.
    April 28, 1975.

      P. Bruce Kirwan, Federal Public Defender, J. Hue Henry, Asst. Federal Public Defender, Atlanta, Ga., for defendant-appellant.
    John W. Stokes, U. S. Atty., James E. Baker, Gale McKenzie, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.
    Before BROWN, Chief Judge, and MURRAH  and WISDOM, Circuit Judges.

       Senior Circuit Judge of the Tenth Circuit sitting by designation.

   MURRAH, Circuit Judge:

Appellant Huff was indicted, tried, convicted, and sentenced, on two counts for offenses enumerated in 21 U.S.C. § 841(a)(1). Count I charged that Huff alone “on the 15th day of January 1974 . did unlawfully distribute about one and one-half (IV2) grams, net weight, more or less, of 3,4 methylenedioxy amphetamine, a Schedule I controlled substance.” Count II charged that Huff and five others “on the 17th day of January, 1974 . . . did unlawfully possess, with intent to distribute about 449 grams, gross weight, more or less, of methylenedioxy amphetamine, a Schedule I controlled substance.” After guilty pleas by three of those charged, Huff and two codefendants proceeded to trial, where they argued, by motions to acquit and by appropriate objections to instructions, that Count II does not charge a crime and is void, because “methylenedioxy amphetamine,” as distinguished from “3,4 methylenedioxy amphetamine,” is not a controlled substance the possession of which is prohibited by law. The trial court rejected this argument, telling the jury that the words “methylenedioxy amphetamine” in Count II “should be described as 3,4 methylenedioxy amphetamine, the same substance as described in Count One” and with this observation, submitted both counts.

On appeal, Huff reasserts his contention with respect to Count II and argues that the evidence on this void Count II infected his trial on Count I. We agree that Count II is fatally defective and reverse the conviction as to that count. But we do not think the evidence on Count II prejudiced his trial on Count I, and the conviction on Count I is affirmed. For reasons hereafter stated, however, we remand for resentencing.

The basis for Huff’s conviction on both counts was evidence from undercover drug agents who testified concerning purchase from Huff and confiscation from his codefendants’ apartment of a substance commonly known to drug pur- ' veyors as “M.D.A.” The chemical definition of this substance is “3,4 methylenedioxy amphetamine,” and it is so designated in the list of controlled substances in the statute. 21 U.S.C. § 812, Schedule 1(c)(1). According to testimony by the government’s chemists, “methylenedioxy amphetamine” is a different drug; and nowhere in the statute is it listed as a controlled substance.

The prosecution admits that the substance was misdescribed in Count II. But it contends that this was merely a typographical error and that Count II, when read together with Count I as part of the entire indictment, meets the required test of sufficiently apprising Huff of the charge against him and protecting him against double jeopardy. In support of its argument, it cites cases from this and other Circuits. United States v. Miller, 491 F.2d 638 (5th Cir. 1974); Robbins v. United States, 476 F.2d 26 (10th Cir. 1973); United States ex rel. Harris v. Illinois, 457 F.2d 191 (7th Cir. 1972), cert. denied, 409 U.S. 860, 93 S.Ct. 147, 34 L.Ed.2d 106 (1972); United States v. Driscoll, 454 F.2d 792 (5th Cir. 1972); United States v. Farber, 306 F.Supp. 48 (N.D.Cal.1969). In all these cases the test was satisfied, because the indictment charged a crime slightly different but closely related to the one on which proof was offered.

Federal Rules of Criminal Procedure 7(c) states that the indictment “shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” Courts have generally understood and implemented this rule so as to let common sense rather than mere technicalities govern the determination of the sufficiency of an indictment. But even a liberal construction of this simple rule does not dispense with the requirement that an indictment or each count thereof allege all the essential elements of an offense. United States v. Clark, 412 F.2d 885, 891 (5th Cir. 1969). To be sure, “[ajllegations made in one count may be incorporated by reference in another count.” Fed.R. Crim.P. 7(c). But each count of an indictment must be regarded as if it were a separate indictment and must stand on its own content without dependence for its validity on the allegations of any other count not expressly incorporated. See Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932); United States v. Greene, 497 F.2d 1068 (7th Cir. 1974); United States v. Roberts, 465 F.2d 1373 (6th Cir. 1972). Here, the challenged count of the indictment alleges nothing more than an act which is legal. And such a failure to allege a crime cannot be remedied by proof or curative instructions which attempt to incorporate other counts not expressly referred to in the challenged count. A grand jury indictment may be amended only by resubmission to a grand jury, “unless the change is merely a matter of form.” Russell v. United States, 369 U.S. 749, 770-771, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); Stirone v. United States, 361 U.S. 212, 215-217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887).

The addition of the numbers “3,4” would have indeed saved this count, but we cannot regard this defect as a mere technicality, for the chemical and legal definition of these substances is itself technical and requires precision. In sum, the variance between non-criminal conduct, as alleged in Count II, and criminal conduct, which the government attempted to prove under Count II, rises above the level of form, however minute the omission may have been. See Van Liew v. United States, 321 F.2d 664, 670-674 (5th Cir. 1963). The conviction on Count II must be reversed.

In support of his contention that the evidence on Count II fatally infected Count I, Huff refers to the rule excluding evidence of crimes not charged. And see United States v. Broadway, 477 F.2d 991 (5th Cir. 1973); United States v. Abshire, 471 F.2d 116 (5th Cir. 1972). But these cases specifically recognize the well established exceptions for evidence of a “system of criminal activity of which the crime charged is a part” and “elements of the crime charged.” United States v. Broadway, supra, at 994 of 477 F.2d. See also United States v. Bryant, 490 F.2d 1372 (5th Cir. 1974); United States v. Smith, 433 F.2d 1266, 1270 (5th Cir. 1970); United States v. Sutherland, 428 F.2d 1152, 1156 (5th Cir. 1970). The evidence presented with regard to Count II (possession with intent to distribute) could properly show, as to Count I (distribution), a systematic criminal activity or the required elements of possession and intent. The relevance of such evidence is particularly clear because Huff’s entrapment defense on Count I highlighted the elements of intent and predisposition. And we think “the probative value of the evidence outweigh[s] the possibility of prejudice to the defendant.” United States v. Broadway, supra, at 995 of 477 F.2d. As we said in United States v. Meriwether, 486 F.2d 498, 504 (5th Cir. 1973): “Whenever a defendant is tried on a multi-count indictment there is the possibility that the jury will infer guilt on all counts from guilt on one of the individual counts, but this danger has not led us to abandon the practice of using multi-count indictments in proper circumstances.” The trial court here clearly charged the jury that each count must be considered “independently of the other”; and Huff does not challenge the sufficiency of the evidence as to Count I. We conclude that the evidence admitted pursuant to Count II did not prejudice Huff’s trial on Count I, and the conviction on Count I is affirmed.

The appellant attached to his brief an ex parte “memorandum” formally addressed to the trial judge from the Assistant United States Attorney on the subject “Billy Ray Huff — Government’s Sentencing Recommendation in Criminal No. 74-55.” After sentencing, this memorandum was discovered in the court clerk’s file where it was an undocketed and apparently inadvertent inclusion. The instrument was not a part of the record, nor was it certified here. There is no actual proof that the trial judge received it or considered it, but the government does not deny submitting it. And no one suggests that it was ever brought to the attention of the defendant or his counsel before or at the time of sentencing. And the government has defended it here, as if it were accepted practice. We will, accordingly, take note of it, and we emphatically disapprove it, as a prejudicial and impermissible ex parte communication between government counsel and the court.

The memorandum recalled Huff’s conviction on the two counts and the maximum penalty of thirty years or $50,000 or both. The memorandum then proceeded to state the following: (1) the prosecution’s recommendation of a “sentence of at least four years;” (2) a statement concluding that Huff was “experienced in drug dealing” and seemed “familiar with illicit action and the necessary coverup techniques,” based upon his monitoring of police radio and his telephonic techniques, as testified at trial; (3) a statement concluding that “there is no excuse of any nature to justify a 30 year old man using both a 13 year old girl and a 17 year old girl to sell his drugs so that he can simply make a profit” and that he induced the girls to use the drugs, based upon testimony at trial that the girls helped him sell drugs and an account given by one of the girls at a hearing in her own separate case before the same trial judge and at which Huff’s attorney served as the girl’s attorney; (4) a statement that Huff “hung out with the well known pushers” at a recreation center and “appear[ed] to distribute drugs” near his apartment, based upon no positive testimony but related to matters on which Huff was questioned by the prosecutor; and (5) a statement that county drug agents have, for a year, had information naming Huff as a drug dealer, based upon no information contained in the record. The prosecution argues that this was not improper because “All [of the items in the memorandum] were dealt with on the record.” As we have seen, only some of the underlying data was in the record; and the memorandum went beyond the data to suggest what conclusions should be drawn. Other parts of the memorandum were taken from a collateral proceeding and were thus not subject to answer by Huff; and some parts had no basis at all in the record.

The sentencing is, of course, a critical stage of the proceedings against the accused, at which he is constitutionally entitled to be present and represented by counsel. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). While recognizing the limits upon appellate review of the length of sentences, this Court has recognized, “It is our duty to insure that rudimentary notions of fairness are observed in the process at which sentence is determined.” United States v. Espinoza, 481 F.2d 553, 558 (5th Cir. 1973). If the exclusive source of the presentence report is the probation officer, we have taken care to note that the defendant’s right under Fed.R.Crim.P. 32(c)(2) to see and rebut the information is not absolute but is within the discretion of the sentencing judge. United States v. Frontero, 452 F.2d 406 and cases cited at 410 (5th Cir. 1971). Where the defendant was denied the opportunity to rebut prejudicial pre-sentence material the source of which is not identified or verified by the probation officer, and which is relied upon by the sentencing judge, we have vacated sentence and remanded for resentencing. Shelton v. United States, 497 F.2d 156 (5th Cir. 1974); United States v. Espinoza, supra; United States v. Battaglia, 478 F.2d 854 (5th Cir. 1972). And where a pre-sentence memorandum is submitted by the prosecution rather than the probation officer, other Circuits have required disclosure and opportunity to rebut. See Haller v. Robbins, 409 F.2d 857 (1st Cir. 1969) (remand for rehearing to develop evidence as to the truth of the allegations in the prosecution’s pre-sentence ex parte communication); United States v. Solomon, 422 F.2d 1110 (7th Cir. 1970) (formulation of prospective rule requiring disclosure to the defendant of prosecution’s pre-sentence memorandum); United States v. Rosner, 485 F.2d 1213 (2d Cir. 1973) (remand for resentencing by a newly drawn judge, when the original sentencing judge had received ex parte a pre-sentence memorandum from the prosecution and had not disclosed the voluminous contents to the defendant until immediately before announcement of the sentence). As Judge Bailey Aldrich put it in Haller v. Robbins, supra, at 859 of 409 F.2d:

“While the court is entitled to a report of the criminal conduct charged, there is no practical necessity for such to be made by the prosecutor ex parte. Moreover, not only is it a gross breach of the appearance of justice when the defendant’s principal adversary is given private access to the ear of the court, it is a dangerous procedure.”

The memorandum went beyond the record, and more importantly, the manner of its submission deprived the defendant of his fundamental due process right to hear and rebut all that the prosecution has to say against him bearing on the judgment of sentence. Cf., United States v. Howard, 506 F.2d 865 (5th Cir. 1975).

The judgment of sentence is accordingly vacated, and the case is remanded for resentencing by a redrawn judge, at which time the government may, with the permission of the court, offer the memorandum as an argument for the length of the sentence to be imposed. The defendant will, of course, be afforded an opportunity to rebut, without an evidentiary hearing. See Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). We make no suggestion regarding the appropriate sentence.

As to Count I, the conviction is affirmed, the sentence vacated, and the case remanded for resentencing in conformity with this opinion. As to Count II, the judgment is reversed.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    H. L. MOORE, Plaintiff-Appellant, v. J. C. KNOWLES, Individually and in his official capacity as superintendent of the Borger Independent School District, et al., etc., Defendants-Appellees.
    No. 74-3252.
    United States Court of Appeals, Fifth Circuit.
    April 28, 1975.
    Larry Watts, Houston, Tex., for plaintiff-appellant.
    A. B. Hankins, Amarillo, Tex., for Robert Gallaway.
    R. A. Wilson, Amarillo, Tex., for School Trustees.
    Before GOLDBERG, CLARK and GEE, Circuit Judges.
   PER CURIAM:

On January 7, 1970, without a hearing, appellant H. L. Moore was suspended from teaching eighth-grade subjects in the Borger, Texas, school system after female students accused him of improper advances. Between then and now, to his misfortune, the law governing such matters has undergone a period of rapid clarification and development. The shocks of this have registered upon the body of his case and, largely owing to them, it remains before the courts. The parties now agree, however, that at this stage of the ease all has worn away save one narrow issue: had Moore a “property” interest in his job, in the Sindermann sense, so that the hearing required by procedural due process was necessary to his dismissal? This, in turn, boils down to job tenure, and informal tenure at that, since it is undisputed that Moore’s only formal contract was a written one for a one-year term, long ago paid out and satisfied. The court below concluded he did not. Agreeing, we affirm upon the basis of its opinion, reported at 377 F.Supp. 302 (N.D.Tex.1974).

Affirmed.

      . In middle 1970, it appeared, as noted by Judge Wisdom in our opinion on an earlier appeal of this case 482 F.2d 1069, 1072 (5th Cir. 1973), that a reasonable expectancy of reemployment might suffice as a basis for requiring procedural due process in dismissals. The earlier trial of this matter, 333 F.Supp. 53 (N.D.Tex.1971), proceeded upon this premise; and judgment in it was reversed, upon the handing down of Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), by an opinion of this court reported at 466 F.2d 531 (5th Cir. 1972). Obedient to Sindermann, that opinion disavowed the so-called “mere expectancy” rule. On rehearing, after further consideration, that opinion was withdrawn and another, reported at 482 F.2d 1069, substituted, by which a remand was ordered to permit Moore to attempt to show a property interest under the newly-declared Sindermann liberty-property interest rubric. It is from this second trial below that this appeal proceeds.

      . Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).


author: CLARK, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LITHO PRESS OF SAN ANTONIO, Respondent.
    No. 74-3430
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 28, 1975.

      Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., Louis V. Baldovin, Jr., Director, Region 23, N. L. R. B., Houston, Tex., for petitioner.
    Eugene Cotton, Irving M. King, Chicago, 111., for Graphic Arts.
    James F. Gardner, San Antonio, Tex., John H. Doesburg, Phoenix, Ariz., for respondent.
    Before WISDOM, BELL and CLARK, Circuit Judges.

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

   CLARK, Circuit Judge:

The National Labor Relations Board (Board) petitions for enforcement of its order that Litho Press Company cease and desist its violations of Section 8(a)(1) of the Act, which allegedly occurred during an unsuccessful attempt by Graphic Arts International Union (AFL-CIO) to organize the company. The issue presented is whether substantial evidence on the record as a whole supports the Board’s finding that the company interfered with, restrained, and coerced its employees in violation of Section 8(a)(1). We enforce.

The Board found these violations: (1) coercive interrogation of employees concerning union activities; (2) threatening employees with loss of overtime; (3) encouraging formation of a grievance committee rather than unionizing; and (4) barring an off-duty employee from passing out union handbills. The first three of these violations purportedly occurred at a meeting of the employees of the company.

The following facts were found by the administrative law judge and adopted by the Board. Larry Pettit (the sole supervisor of Litho Press’ plant and second in the management hierarchy to the president of the company) and Roy Bingham, an employee, directed all Litho Press employees to attend a meeting conducted by Bingham on company time. Pettit sat next to Bingham at the meeting. Bingham opened the meeting by stating that since he had been left out of the Union’s activity in the plant, he wanted to find out what the other employees knew. After several minutes of silence Bingham asked if anyone had been contacted by the Union. Three out of 50 employees raised their hands. Bingham stated that he was against the Union and if the Union came in, the employees would not be able to work overtime. Further, he stated that he did not think the Union “would work”, and that if the employees wanted a change they should form a grievance committee to present their problems in a petition to the owner and the president. No one spoke in favor of the Union.

The Board contends that these facts sustained a finding of (1) unlawful interrogation by an employer concerning union activities under N. L. R. B. v. Varo, Inc., 425 F.2d 293, 298 (5th Cir. 1970); (2) a threat to deprive employees of existing overtime benefits to deter unionization under N. L. R. B. v. Kaiser Agriculture Chemicals, 473 F.2d 374, 381 (5th Cir. 1973); and (3) that Litho Press unlawfully urged its employees to repudiate an outside union and form their own under N. L. R. B. v. Birmingham Publishing Co., 262 F.2d 2, 7 (5th Cir. 1958).

The Board found that Bingham was not an agent of the company. However, it found that Pettit, a supervisor, directed the employees to attend a±J was present at the meeting. The meeting was held during company time and several employees asked Pettit for permission to leave early, indicating that they did not feel free to leave. Thus the Board found that Pettit, by not disavowing Bingham’s conduct or repudiating his representations, ratified and adopted Bingham’s statements.

The proof further indicated that Bingham was performing functions which would reasonably cause other employees to associate him with management. Bingham did most of his work in an office next to that of the president, although he worked part-time, as a cameraman. Bingham did not wear a uniform as did the other employees. Litho Press’ president testified that Bingham did his “leg work”. One employee testified that Bingham had the power to hire and fire her. Bingham was made head of a department soon after the meeting.

Litho Press contends the facts to be as follows. Bingham was a camera operator, not a representative of management. The meeting was suggested by a group of employees to discuss the pros and cons of unionizing. Bingham was only one of five employees who instigated the meeting. He was chosen as the chairman because he was the most articulate. This group of employees informed the other employees of a meeting to be held in the plant at 4 P.M. that afternoon to discuss the Union. Opening the meeting, Bingham stated that he understood that there was considerable interest in the Union and asked if anyone had anything to say. One employee suggested that the plant go on two shifts to cut down on the amount of overtime. Another employee stated that he liked overtime. Bingham did not comment on the issue of overtime, although he did suggest that a grievance committee be formed. The meeting ended soon thereafter. Neither the owner of the company nor its president was present at the meeting. Pettit, the foreman who was present, made no comment.

Litho Press criticizes the reliance of the administrative law judge on the testimony of one witness that Bingham threatened loss of overtime, when other witnesses testified that he said nothing about overtime. Further, Litho Press contends that Bingham, who made the suggestion of forming a grievance committee, was a voting employee in the unit and was expressly found not to be an agent of management. It is therefore argued that there was nothing to be ratified and adopted by the company, because nothing was said that Pettit should have disavowed.

Assuming Bingham’s identification with management was not established, Pettit’s presence next to Bingham at the meeting under the circumstances found by the Board is sufficient to impute to management the statements the administrative law judge found Bingham made. Cf. N. L. R. B. v. American Casting Service, Inc., 365 F.2d 168 (7th Cir. 1966). A determination of whether the first three alleged violations occurred thus involves a problem of witness credibility. Such credibility resolutions cannot be disturbed unless they are unreasonable. N. L. R. B. v. Varo, Inc., 424 F.2d 293, 297-98 (5th Cir. 1970).

The facts leading to the fourth alleged violation are not disputed. Tip-ton, an employee on vacation, was handing out handbills in the driveway of the plant along with two union representatives. Two employees leaving work stopped to talk to Tipton. Thomas, the owner of Litho Press, came out of the plant and told the group: “If you girls are talking union talk, get off of my property.” The activity took place on the employee’s own time, in a non-work area, and Thomas’ actions were not based on a legitimate employer interest. Since the prohibition was expressly applied to “union talk”, it was discriminatory. William L. Bonnell Co. v. N. L. R. B., 405 F.2d 593, 595 (5th Cir. 1969). Thomas thus enunciated an unlawful no-distribution and no-access rule.

Litho Press contends that there was no evidence that Thomas knew that Tipton was an employee, and that a non-employee can be barred from company property where other means of communication exist. However, Section 8(a)(1) is concerned with the effect of the employer’s conduct, not his state of mind. Welch Scientific Co. v. N. L. R. B., 340 F.2d 199, 203 (2d Cir. 1965).

Alternatively, Litho Press asserts that Tipton should be treated as an employee on vacation whose rights should be distinguished from those accorded an active employee. While such a distinction might be appropos if special circumstances, such as security or productivity, demand it; this circuit recognizes no such differentiation as to one in Tipton’s status. See Republic Aluminum Co. v. N. L. R. B., 394 F.2d 405 (5th Cir. 1968). See also Westinghouse Electric Corporation, Tampa Division, 119 N. L. R. B., 783, 786-87 (1972).

As another alternative, Litho Press maintains that Thomas’ statement to Tipton was a mere request to move back to the sidewalk. There was no threat of enforcement nor were any employees working in the plant told that they could not solicit except on company time and, given these circumstances, no Section 8(a)(1) violation was shown because there was no evidence of the promulgation and enforcement of a rule by sanctions. Leaving aside the fact that Thomas’ stern remark may have carried an implied threat of enforcement, it was specifically directed to “union talk” alone. It is clearly distinguishable from written rules validly regulating conduct of off-duty employees and non-employees and from statements which undertake to construe or apply such valid regulations. Cf. Kaufman-Straus Co., 137 N.L.R.B. 151 (1962). It is not necessary for a sanction to be imposed for violation of an extemporaneous command of this sort to constitute discrimination. See Amalgamated Clothing Workers of America v. N. L. R. B., 124 U.S.App.D.C. 365, 365 F.2d 898, 911 (D.C.Cir. 1966).

Litho Press finally asserts that the Board erred in setting aside the election, since the results were not changed by any of the cited occurrences. We decline to reach this contention since the order for a second election is not before us.

Enforced.

      . Another witness quoted the statement as: “If you are discussing union business, please get off my property or get off my property and stay off my property.” Mr. Thomas did not testify.

      . See McDonnell Douglas Corp. v. N. L. R. B., 472 F.2d 539 (8th Cir. 1973); and Diamond Shamrock Co. v. N. L. R. B., 443 F.2d 52 (3d Cir. 1971).


author: COLEMAN, Circuit Judge.

text:
    Hawley K. CHALLONER et al., etc., Plaintiffs-Appellees, v. DAY AND ZIMMERMANN, INC., et al., Defendants-Appellants.
    No. 74-1555.
    United States Court of Appeals, Fifth Circuit.
    April 24, 1975.
    Rehearing Denied June 2, 1975.

      Norman C. Russell, Texarkana, Tex., for defendants-appellants.
    Cahill Hitt, Texarkana, Tex., for plaintiffs-appellees.
    Before BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   COLEMAN, Circuit Judge.

The premature explosion of an 105 mm. howitzer round in Cambodia, May 22, 1970, while the Armed Forces of the United States were engaged in combat with the North Vietnamese, prompted this diversity suit. Hawley K. Challoner, of Wisconsin, was seriously injured by the explosion. Daniel E. Nelms, of Tennessee, was killed. Suit was grounded upon strict liability principles enunciated by Texas law. There was a jury verdict of $200,000 for Challoner, and a $40,000 award for Nelms’ administrator against Day and Zimmermann. The defendant had manufactured the artillery round in Texas. The difficulties of the case are quickly recognized, but we affirm the judgment of the District Court.

■ Day and Zimmermann is incorporated in Maryland and has its principal place of business in Pennsylvania.

Under Texas law the plaintiffs had the burden of establishing by a preponderance of the credible evidence that a defect in the ammunition was the cause of the premature explosion.

Plaintiffs produced a number of witnesses. The direct evidence was supplied by J ames Schrader, for twenty-eight years an ammunition control specialist for the Army. Schrader testified that the most likely cause of the premature explosion was the existence of cavitation in the explosive material Composition B poured into the artillery round by Day and Zimmermann. This cavitation, said Schrader, resulted in explosion inducing collapse of the Composition B before it had reached the end of the gun tube.

Schrader’s testimony was buttressed by the testimony of an Army Major who investigated the accident. The Major’s opinion was that the explosion was the result of an ammunition malfunction.

Various gun crew members testified that all safety procedures had been followed, which tended to eliminate causes other than ammunition defects, thus corroborating Schrader.

Finally, plaintiffs introduced United States Government reports of tests of ammunition taken from the same lot as the round which had exploded. These reports showed that some of the tested rounds had cavities in the explosive material.

Defendants countered with expert testimony that the defects turned up by the government tests were insufficient to cause a premature explosion. An agent of Day and Zimmermann testified that defendants made the ammunition precisely in accordance with government design; it had fully followed the government approved inspection system designed to uncover any defects. An agent of the United States testified that government inspectors rigidly monitored Day and Zimmermann to assure that the government approved designs and specifications were followed.

The District Judge held that the strict liability principles of Texas law governed and submitted the case to a jury. The assigned errors may be topically considered as follows:

I

Was the District Court Correct in Applying Texas Substantive Law?

Defendants argue that the District Court erred in applying the substantive law of Texas. It says that under the decisions in Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and Klaxon v. Stentor Electric Manufacturing Company, Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), the conflict of law rules of the Texas forum must be applied, and that under Texas conflict of law rules, the law of Cambodia, the place of the injury, governs.

It is not to be denied that the much discussed decision in Klaxon, supra, held, as a general rule, that the conflict of laws rules of the forum applies in a diversity case. The Klaxon Court was “of opinion that the prohibition declared in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, against such independent determinations by the federal courts extends to the field of conflict of laws. The conflict of laws rules to be applied by the federal court . must conform to those prevailing in state courts. Otherwise the accident of diversity of citizenship would constantly disturb equal administration of justice in coordinate state and federal courts sitting side by side”. 313 U.S. at 496, 61 S.Ct. at 1021.

This would mean that, applying Texas choice of law rules, certainly as to the wrongful death, Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182 (Tex., 1968), and Click v. Thuron Industries, Inc., 475 S.W.2d 715 (Tex., 1972), and perhaps as to the personal injury, compare Marmon, supra, and Click, supra, with Couch v. Mobile Oil Corporation, D.C., 327 F.Supp. 897 (1971), and Continental Oil Company v. Lane Wood & Company, 443 S.W.2d 698 (Tex., 1969), the substantive law of Cambodia would control.

For a number of reasons, however, we hold to the contrary. First, there is our decision in Lester v. Aetna Life Insurance Company, 5 Cir., 1970, 433 F.2d 884, cert. denied 402 U.S. 909, 91 S.Ct. 1382, 28 L.Ed.2d 650. Lester was a diversity action on a life insurance policy. Plaintiff-beneficiary was a Louisiana citizen; defendant insurer was a Connecticut insurance company which did business in Wisconsin and which had issued the policy in Wisconsin. The action was begun in Louisiana state court and removed to federal court.

The insurer’s defense was that the policy had been cancelled. Plaintiff claimed the cancellation was ineffective because it was not preceded, as required by Louisiana law, by written notice that premiums were due. Defendant relied on Wisconsin law which required no notice. The issue was whether Louisiana or Wisconsin law governed.

We refused to look to the Louisiana conflict of law rule, deciding that as a matter of federal choice of law, we could not apply the law of a jurisdiction that had no interest in the case, no policy at stake. The Wisconsin law was designed for the protection of Wisconsin insurers. Defendant was not a Wisconsin insurer; thus, Wisconsin had no interest in. the case. On the other hand, since a Louisiana citizen was the insured party, the Louisiana policy of protecting insured parties by requiring notice was at stake. As the arbiter of relations between the states, we deemed it wholly inappropriate to apply any law other than the law of the only jurisdiction that had any real interest in the contest.

The Lester principle controls here. Like Wisconsin in Lester, Cambodia has no interest in this dispute between American litigants. The Cambodian requirement that fault be proved is a policy designed to afford a high degree of protection for Cambodian manufacturers; Cambodia is indifferent to the protection of American manufacturers.

On the other hand, it might be said that Wisconsin, Tennessee, Pennsylvania, and Texas all have a substantial interest in this case. Wisconsin, Challoner’s domicile, and Tennessee, Nelms’ domicile, are strict liability states, Ford Motor Company v. Lonon, 217 Tenn. 400, 398 S.W.2d 240 (1965); Howes v. Hansen, 56 Wis.2d 247, 201 N.W.2d 825 (1972). The policy of these states is to provide maximum protection for their injured citizens. Wisconsin and Tennessee citizens are the injured parties. The Wisconsin and Tennessee policy of affording maximum protection to their injured citizens will be carried out by Texas law since Texas is also a strict liability state, Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex., 1969).

Pennsylvania, the state where defendant has its principal place of business, like Texas, is a strict liability state, Hoffman v. A. B. Chance Company, 346 F.Supp. 991 (M.D.Pa., 1972). The strict liability policy of both Pennsylvania and Texas is designed in part to require a high standard of care of their manufacturers — a policy which would be frustrated by the application of Cambodian law. Thus, application of Texas law will promote the interests of Wisconsin, Tennessee, Pennsylvania, and Texas, while having no effect on the interests of Cambodia which is concerned only with financial protection for Cambodian manufacturers.

In short, these facts fit squarely within the Lester principle. This is a case in which the policies of all jurisdictions having an interest in the dispute will be carried out through application of' Texas law. No jurisdiction will have any policy frustrated by application of that law. In such a situation, Lester dictates that as a matter of federal choice of law, we apply the law of the jurisdictions having a legitimate interest in the contest, any state conflict of law rule to the contrary notwithstanding. However controlling state law may be in most diversity cases, it does not extend so far as to bind a federal court to the law of a wholly disinterested jurisdiction.

In addition to the holding in Lester, we find other compelling reasons for not allowing Texas conflict of law rules to dictate a resort to Cambodian law. One such reason is that the rationale for application of the traditional (place of the injury) conflict rule applied by Texas courts is not operative under the present facts. The traditional conflict rule is grounded upon the premise that sovereign powers have the exclusive authority to determine rights and liabilities arising out of transactions occurring within their borders. As explained by Mr. Justice Story:

I. The first and most general maxim or proposition [of conflict of law] i:> that . . . every nation possesses an exclusive sovereignty and jurisdiction within its own territory. The direct consequence of this rule is that the laws of every state affect, and bind ... all persons, who are resident within it, whether natural born subjects, or aliens; and also all . acts done within it. * sft * * * *
II. Another maxim, or proposition, is, that no state or nation can, by its laws, directly affect, or bind . persons not resident therein, whether they are natural born subjects, or others. This is a natural consequence of the first proposition; for it would be wholly incompatible with the equality and exclusiveness of the sovereignty of all nations, that any one nation should be at liberty to regulate persons . . . not within its own territory.

Story, Commentaries on the Conflict of Laws, 2d ed., 1841.

Under familiar principles of international law, the place of the injury, in this case Cambodia, had no authority to govern the persons or transactions involved in this law suit. As put by Chief Justice Marshall, “A [nation] is understood to cede a portion of [her] territorial jurisdiction where [she] allows the troops of a foreign nation to pass through [her] dominio ”, The Schooner Exchange v. M’Faddo ¡, 7 Cranch 116, 139, 3 L.Ed. 287 (1812).

Thus, the only imaginable reason for applying Cambodian substantive law — the right of a sovereign to govern transactions within its borders — evaporates. Cambodia, under established principles of international law has no right to determine rights or liabilities as between foreign subjects arising out of the military activities of a foreign power.

A third and final reason for not applying Cambodian law lies in the very nature of this Court. We are a Court oí the United States, an instrumentality created to effectuate the laws and policies of the United States. We conclude that in this case we have no warrant, legal or moral, to frustrate well established American policies by an application of the local policies of a foreign government.

The District Court was correct in applying Texas substantive law.

The remaining inquiry, then, is whether Texas law was correctly applied.

II

In Texas, Can Non-Sellers Be Held Strictly Liable?

Defendants direct our attention to the fact that by its literal terms Restatement § 402(a) refers only to sellers. Under their contract with the government, defendants sold nothing. They simply assembled materials purchased by the government. Never having had title to the goods, they were not a seller; hence, defendants say that the principles of strict liability are inapplicable.

While defendants are quite correct in their observation that the express term of Restatement § 402(a) refers only to sellers, the Texas courts have been more liberal, not requiring a literal sale for the attachment of strict liability. Rather, strict liability attaches whenever “the transaction by which a product is transmitted into the stream of commerce is ‘essentially commercial’ in character”, Rourke v. Garza, 511 S.W.2d 331, 336 (Tex.Civ.App.1974); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967); Freitas v. Twin City Fisherman’s Cooperative Association, 452 S.W.2d 931 (Tex.Civ.App.1970).

The ammunition in this case came into commerce via a commercial transaction, here, a “cost plus” contract. This is all that is necessary for the attachment of strict liability under Texas law.

Ill

Was There Error in Instructing The Jury That it Could Find Defendants Liable if Product was Defectively Designed?

Defendants claim there was reversible error in giving the following instruction:

“You are further instructed that a defect in any product can arise from one or two different origins. The first such form of defect is one that arises due to some miscarriage in the production or assembly process so that the product is not produced as it had been planned. An example of a defective product of this type is one which contained a foreign substance or has unintended features. The other form of such defect is one that results from the design of a given product. An example of the defective product of this type is one that was used exactly as designed and intended and yet still was in a defective condition that was unreasonably dangerous to cause of the design. Should you find from a preponderance of the evidence that a defect, if any, in the said 105 Howitzer shell was in a sealed component part of the shell you may infer that such condition existed at the time it was sold.”

This instruction might indicate that the jury should find defendants liable if it found the product was defectively designed. This, defendants say, the jury was not entitled to do since design was exclusively within the control of the government. Numerous cases are cited which have held that a contractor is not liable for injuries caused by the defective design furnished him by another unless the design is so glaringly or obviously dangerous that the contractor should have been alerted. See, e. g., Ryan v. Feeney & Sheehan Building Company, 239 N.Y. 43, 145 N.E. 321, 41 A.L.R. 1 (1924), and Davis v. Henderlong Lumber Company, 221 F.Supp. 129 (N.D.Ind., 1963).

The difficulty with this argument is that the cited cases which absolve defendants who follow defective designs of another were not decided under a strict liability theory. They involved attempts to demonstrate negligence and stand only for the proposition that there is no negligence in following the design of another unless the design is such that the defectiveness was sufficiently obvious to alert a reasonably competent technician to the danger.

In this case, it was not necessary to prove negligence. The theory alleged is strict liability. A strict liability case, unlike a negligence case, does not require that the defendant’s act or omission be the cause of the defect. It is only necessary that the product be defective when it leaves the defendant’s control. A specific example of this principle is found in Comment (f) to Restatement § 402(a) which says that strict liability applies to “wholesalers, retailers, or distributors” who sell defective products, notwithstanding the fact that these parties will not normally be the ones who caused the existence of the defect. Texas cases which have held principles of strict liability to attach even though defendant was not the party who caused the existence of the defect are McKisson v. Sales Affiliates, 416 S.W.2d 787 (Tex.1967), and Sharp v. Chrysler Corporation, 432 S.W.2d 131 (Tex.Civ.App., 1968), holding dealer strictly liable for defect in automobile.

IV

Was There Sufficient Evidence To Allow the Jury to Conclude That the Round was Defective When It Left Defendants’ Hands?

Defendants contend the evidence was insufficient to allow the jury to conclude that the shell was defective. This argument is weighed by the standards we set forth in Helene Curtis Industries, Inc. v. Pruitt, 5 Cir., 1967, 385 F.2d 841, 850, which held that a jury’s verdict must be upheld “if there is a rational basis in the record” for it.

A rational basis for the jury’s verdict in this case was provided by the testimony of plaintiffs’ expert James C. Schrader who said that the most probable cause of the explosion was cavitation in the Composition B material that defendant poured into the projectile. Schrader’s testimony was buttressed by the testimony of various soldiers who swore that all required safety procedures had been followed. Such testimony could justify the elimination of the probability that user neglect caused the premature explosion. Similar circumstantial evidence was held sufficient to support a jury’s verdict in Franks v. National Dairy Products Corporation, 5 Cir., 1969, 414 F.2d 682.

V

Did the Trial Judge Err In Admitting United States Government Reports of Shell Tests?

Following the explosion, the government tested artillery shells drawn from the same lot as the shell which prematurely exploded. These tests showed that a number of the shells had cavities in the explosive material, leaving the jury an opportunity to infer that the shell in question was likely to have had similar cavities.

Defendants argue that the reports were inadmissible hearsay. We do not agree that they were inadmissible. Dallas County v. Commercial Union Assurance Company, 5 Cir., 1961, 286 F.2d 388, held that a federal district court is entitled to admit evidence inadmissible under state law if that evidence is trustworthy and of probative value. Only an abuse of discretion will require reversal.

Here, the evidence was gathered by the government, which had as its sole incentive the determination of whether the shells were, in fact, defective. This assured a high degree of trustworthiness. The fact that other shells in the lot had cavities in the explosive material was relevant since it increases the probability that the shell in question had a similar deficiency. Thus, this evidence was both trustworthy and relevant. The trial judge did not abuse his discretion in admitting it.

VI

Should We Refuse To Apply The Principles of Strict Liability On A Public Policy Basis?

Finally, defendants note that many of the justifications for the adoption of strict liability are not present in this case. For example, defendants argue that this is not a case in which plaintiffs acted in reliance on advertisements or warranties, and is not a case in which strict liability will induce greater care since defendants’ procedures are government controlled. In one respect, defendants are no doubt correct; not all of the reasons that have justified' the move to strict liability are present here. However, the most basic and primary justification for imposing strict liability is present. “The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves”, Foster v. Day & Zimmermann, Inc., 8 Cir., 1974, 502 F.2d 867, 871, quoting Hawkeye-Security Insurance Company v. Ford Motor Company, 174 N.W.2d 672 (Iowa, 1970), which takes the quote from the leading strict liability case of Greenbaum v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 700, 377 P.2d 897, 900 (1963).

We therefore agree with the Eighth Circuit’s rejection of the defendants’ public policy argument.

“In making the grenade and its component parts the defendants knew that it was made for military personnel and that it was to be used by them. We believe the public interest in human life and health requires the protection of the law against the manufacture of defective explosives, whether they are to be used by members of the public at large or members of the public serving in our armed forces.”

Foster v. Day & Zimmermann, Inc., 8 Cir., 1974, 502 F.2d at 871.

In upholding the recovery for wrongful death we are not unmindful of the decision of this Court in Ramirez v. Autobuses Blancos Flecha Roja, 5 Cir., 1973, 486 F.2d 493. In that case a Mexican national, in Texas, bought a bus ticket from a Mexican corporation for transportation from Laredo to Saltillo. In Mexico, while enroute to Saltillo, there was a collision in which the passenger was killed. Texas, of course, had nothing to do with the collision. Citing Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182 (Tex., 1968) we held, in effect, that the Texas wrongful, death statute has no extra-territorial effect. In Marmon it had been held that the law of Colorado, where the deaths occurred, provided the appropriate remedy. Those deaths, however, were caused by pilot error, something Texas had absolutely nothing to do with.

We said that “the Texas Wrongful Death Act as recently and authoritatively construed is not an available remedy where the injury causing death did not occur on Texas soil”.

Nevertheless, in a highly vital respect the present appeal is not like Marmon: the wrongful act, i. e. the defective loading of the shell, occurred in Texas. Thus Texas had the same intimate connection with the death here in question as if a defendant standing in Texas had killed a man by firing a rifle across the state line. Additionally, as already pointed out, the direct culmination of the defective manufacture occurred not in some other state of the American Union, as in Marmon, but on foreign soil in which the foreign government had no jurisdiction over what was taking place. In our considered judgment, then, the Supreme Court of Texas, if it had this appeal, would hold that conventional notions of extra-territoriality do not encompass the peculiar situation we have here and would further hold that the Texas Legislature had in mind no such an extra-territorial limitation when it enacted the Wrongful Death Statute.

The judgment of the District Court is Affirmed.

      . See e. g., Wright, Law of Federal Courts, § 57, p. 236; Horowitz, Toward: A Federal Common Law of Choice of Law, 14 U.C.L.A. Law Review 1190; and Hart, “The Relations between State and Federal Law”, 54 Columbia Law Review at 514. Hart summarizes the case against Klaxon in the following language:
      [Choice of law questions] are essentially federal, in the sense that they involve, by hypothesis, more than one state. To the solution of no other type of controversy is the diversity jurisdiction better adapted,

      . Since a member of the United States Armed Services is involved in this case, the United States also has an interest. However, since “there is no general federal common law”, Erie v. Tompkins, supra, we are unable to say with any substantial degree of certainty what the United States policy is regarding compensation of injured servicemen. We believe, however, that the people of the United States would not desire that their servicemen be subjected to less stringent standards of care than are provided by their own home states.

      . The United States Supreme Court has recognized that not every diversity case will be governed, in all its aspects, by state law. For example, Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964) was a diversity case in which a primary issue was whether recognition should be given petitioner’s title in sugar — title' which had been gained through the Cuban government’s expropriation from a former owner. The court held the question should be resolved by federal law, citing with approval Professor Jessup’s warning of this danger implicit in allowing states to decide questions affecting national relations.
      In Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959), civilian labor union leaders claimed an American military officer had defamed them and, invoking diversity jurisdiction, sued for libel. The officer claimed that since his statements were made in the course of his military duties, it was privileged. The Supreme Court held, inter alia, that despite the fact that the action was founded on state law and despite the fact that diversity of citizenship was the basis of jurisdiction, the validity of the defense was to be judged by federal standards.


author: KRAFT, District Judge.

text:
    E. J. LEE and Lee Boats, Inc., Plaintiffs-Appellees, v. VENICE WORK VESSELS, INC., et al., Defendants, Leander H. Perez, Jr., Defendant-Appellant.
    No. 74-3172.
    United States Court of Appeals, Fifth Circuit.
    April 25, 1975.
    Rehearing and Rehearing En Banc Denied Aug. 18, 1975.
    Sidney W. Provensal, Jr., New Orleans, La., for defendant-appellant.
    William L. Crull, III, F. Irvin Dymond, New Orleans, La., for E. J. Lee.
    Booth Kellough, New Orleans, La., John E. Bailey, William G. Duck, Houston, Tex., for Gulf Oil Corp.
    Charles W. Lane, III, New Orleans, La., for Rebel Well Ser. Inc.
    J. Barnwell Phelps, George W. Pig-man, New Orleans, La., for Jump Corp.
    K. J. Gilly, James K. Irvin, New Orleans, La., for J. Ray McDermott & Co.
    Before WISDOM and DYER, Circuit Judges, and KRAFT , District Judge.

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

   KRAFT, District Judge.

The question for determination in this case, before this Court on an interlocutory appeal for which leave was granted, is whether a private cause of action for treble damages under the antitrust laws survives against the heirs of an alleged wrongdoer, where the suit was instituted long after the decedent’s death and after his estate had been administered and distributed among his heirs and the administrator of his estate had been released. We conclude it does not.

The United States instituted a civil antitrust action against a number of defendants, including Leander H. Perez, Sr. (Perez, Sr.) on November 6, 1967, asserting unlawful conduct on his part in 1965. Perez, Sr. died March 19, 1969. Letters of Administration on his estate were issued on April 24, 1969 to his son, Leander H. Perez, Jr. (Administrator). The suit by the United States against Perez, Sr. was dismissed on May 7, 1969, but continued against the remaining defendants. On November 24, 1971 the administration of the estate of Perez, Sr. was concluded, the heirs were put in possession and the Administrator was released. On April 10, 1972 the United States action against the remaining defendants was terminated by the entry of a final consent decree.

Appellees, on December 29, 1972, filed a private civil antitrust action for treble damages naming “Leander H. Perez, Jr. Administrator of the Estate of Leander H. Perez, Sr.” as one of several defendants. Following a motion to dismiss on the ground that there was no longer an administrator in being, appellees, with leave of court, amended the complaint on December 31, 1973 by adding the four heirs, including Perez, Jr., as defendants. Upon the heirs’ motion to dismiss the court below denied the motion of Perez, Jr. and withheld ruling on the motion of the other three heirs pending an evidentiary hearing. Perez, Jr., with requisite permission, has appealed.

Since the federal statute which created the appellees’ right of action made no provision for abatement or survival, recourse must be had to the federal common law. Barnes Coal Corp. v. Retail Coal Merchants Ass’n (4 Cir. 1942), 128 F.2d 645, 648. It will be noted that 28 U.S.C. § 2404 provides that a civil action for damages by the United States shall not abate on the death of a defendant, but shall survive and be enforceable against his estate. No provision is made for survival or enforcement beyond that. The silence of Congress on abatement and survival of private civil antitrust actions cannot be reasonably construed to indicate an intent to extend to private antitrust plaintiffs a greater right, in respect of survival of the cause of action, than is accorded the United States.

This Court, in Rogers v. Douglas Tobacco Board of Trade (5 Cir. 1957), 244 F.2d 471 held that a private antitrust action survived against the personal.representatives of a defendant who died after service of process upon him. ■ Neither this decision nor 28 U.S.C. § 2404 affords any real guidance to the solution of the present problem, since the statute contemplates and the decision deals with the death of a defendant against whom an action is already pending.

No authority has been unearthed by the court below or by our own research or that of counsel for a private civil antitrust suit directly against the heirs of a decedent against whom and against the representative of whose estate no such action had been filed. We think this is of some significance, in light of the myriad cases which have considered questions of abatement and survival over more than two centuries.

We are mindful that “[t]he common law is not a static but a dynamic and growing thing. Its rules arise from the application of reason to the changing conditions of society. It inheres in the life of society, not in the decisions interpreting that life; and, while decisions are looked to as evidence of the rules, they are not to be construed as limitations upon the growth of the law but as landmarks evidencing its development.” Barnes Coal Corp. v. Retail Coal Merchants Ass’n, supra (128 F.2d p. 648). Many of the cases in the development of survival of actions at the common law resulted from efforts to lessen or avoid the harsh and unjust effects of the abatement of a cause of action upon the death of the wrongdoer. In this context it may be fairly said, we think, that the quest has been for reasoned justice. This does not necessarily entail an unending expansion without concern for its consequences. Under existing law, the present case raises the question not of survival of the cause of action, but rather the extent and duration of that survival. Here, in an effort to achieve reasoned justice, we think it essential to weigh and balance the interests of the appellees against those of the heirs whom the appellees now seek to hold accountable.

We are not persuaded by appellees’ argument that it would be inherently unfair to deny them the right to sue the heirs of Perez, Sr., since it was the appellees’ own inaction which caused their present problem. Appellees may well have confused the effect of the suspension of the statute of limitations during the pendency of and for one year after the termination of the suit by the United States with the survivability of their cause of action. They urge, without warrant, that the suspension of the limitations’ statute enabled them to remain inactive with impunity, so long as their suit was brought before its expiration. The suspension provision does not necessarily achieve that result. It only extends the time during which suit may be brought against the alleged wrongdoer or against those as to whom, upon his death, the cause of action survived under the federal common law.

The appellees were aware both of the suit by the United States and of the death of Perez, Sr. Though the four year statute of limitations was tolled until and for one year after the entry of, the final consent decree against the surviving defendants on April 10, 1972, nothing precluded appellees from instituting their action against Perez, Sr. before his death or, thereafter, against the Administrator during the administration of his estate, which began April 24, 1969 and ended November 24, 1971. Appellees filed no claim in the administration of the estate nor did they oppose the release of the Administrator. Their suit against the Administrator some thirteen months after his release indicates the degree of appellees’ inattention and their unwarranted assumption that the administration of the estate was still in progress, though a simple search of the appropriate state court record would have disclosed otherwise. Appellees’ persistent failure to exercise their claimed rights despite ample opportunity justifies neither their claim of inherent unfairness nor warrants an extension of the survival of their cause of action beyond the Administrator to the heirs.

In contrast, appellees now seek to call upon the heirs to prepare for and defend against a claim that Perez, Sr., from 1965 until his death in May, 1969, conspired with others to restrain interstate trade and commerce and to establish a monopoly, though the heirs are not alleged to have participated in the alleged unlawful conduct. Unless the heirs were disposed to permit the evidence of appellees to go unchallenged, they must, of necessity and long after the events complained of, seek tó discover and establish acts and statements of Perez, Sr., now dead six years, which tend to or do disprove or affirm allegations of the participation of Perez, Sr. in the asserted conspiracy.

Had Perez, Sr. been sued or had the Administrator been sued before the completion of the administration of the estate and his discharge the assets of the estate, undiminished by federal estate taxes or by state inheritance or death taxes, would have been available in the event of recovery of damages by the appellees. Now, the net assets of the estate, necessarily smaller in amount, have been distributed. If appellees’ cause of action were to be held to survive against the heirs, could each heir be held liable only to the extent of that heir’s net inheritance; or, if not, to what extent? Could the heirs be held liable jointly or severally? If the heirs’ respective inheritances have been commingled with their own assets in such fashion as to make identification of the inheritance impossible or if such inheritances shall have been wholly or partially expended or encumbered or diminished in value by events or the passage of time, to what degree could each heir be called upon to respond to any recovery? These self-evident problems, and others, difficult of just solution, which would be created by extending survival of the cause of action beyond the Administrator to the heirs reminds us, somehow, of the fabled end of “Humpty-Dumpty”. All could have been avoided by appellees’ attention to the exercise of their rights. All furnish, we think, sound reason for holding that the survival of appellees’ cause of action terminated upon the distribution of the estate to the heirs and the release of the Administrator. Any different conclusion would not be reasoned justice to the heirs.

Accordingly, we determine that the appellees’ cause of action was improperly asserted against the heirs of Perez, Sr. and reverse the order of the court below, with directions to grant the motion for dismissal by the defendant, Leander H. Perez, Jr. and to act upon the motions of Chalin O. Perez, Joyce Perez Gelpi and Betty Perez Carrere consistently with this opinion.

Reversed and remanded.

      . 28 U.S.C. § 1292(b), Rule 5, Federal Rules of Appellate Procedure.

      . 15 u.s.c. § 15.

      . 15 U.S.C. § 16(b).

      . “Humpty-Dumpty sat on a wall Humpty-Dumpty had a great fall All the King’s horses
      And all the King’s men Couldn’t put Humpty-Dumpty together again.”


author: LEWIS R. MORGAN, Circuit Judge: CLARK, Circuit Judge

text:
    Gary MANESS, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellee.
    No. 74-1538.
    United States Court of Appeals, Fifth Circuit.
    April 25, 1975.
    Rehearing En Banc Granted Sept. 2, 1975.

      Albert G. Caruana, A.C.L.U. of Fla., Bennett H. Brummer, Asst. Public Defender, Miami, Fla., for petitioner-appellant.
    J. Robert Olian, Asst. Atty. Gen., William L. Rogers, Asst. Atty. Gen., Miami, Fla., for respondent-appellee.
    Before MORGAN and CLARK, Circuit Judges, and GORDON, District Judge.
   LEWIS R. MORGAN, Circuit Judge:

Petitioner-appellant Gary Maness filed a petition for a writ of habeas corpus, attacking his conviction for manslaughter by the state of Florida. He complains solely that he was denied due process of law by the state trial court’s application of the voucher rule to prevent his cross-examination of a witness called by him, and to exclude evidence impeaching that witness. Under the voucher rule, a party calling a witness “vouches” for that witness’ credibility, and therefore may not attack it. We find no denial of due process in the state court’s application of Florida’s evidentiary rules, and we affirm the district court’s denial of the petition.

I.

Maness was convicted of manslaughter in the death of his infant daughter, Misty, who died as a result of injuries which included multiple bruises and fractures of her left arm and right thigh. After an investigation, Maness was arrested for his daughter’s death. He made a sworn statement that he had struck Misty twice on the afternoon before he and his wife had taken her to the hospital for treatment of the injuries from which she died four days later. He also stated that this had occurred while Linda, his wife, was on a brief shopping trip.

At trial, Maness recanted his confession, and testified that he had confessed only to keep his wife, whom he believed to be pregnant, from going to jail. He also testified that he did not know how Misty had been injured, but that he believed the injuries were self-inflicted.

The issue in this appeal revolves around the trial testimony of Linda Maness. Linda was not called as a witness for the state. Petitioner Maness therefore called her as a defense witness, and immediately sought to treat her as an adverse witness so that he could cross-examine and impeach her. The trial court ruled that she was not an adverse witness and therefore, under the Florida voucher rule, Maness could not impeach her testimony. Linda testified that she had gone shopping on the afternoon in question and returned to find the child injured. She also testified that she did not know how Misty had sustained her injuries.

Maness sought to introduce three items of evidence, all of which were excluded, in order to contradict Linda’s testimony. First, he sought to introduce some letters written to him by his wife in which she allegedly stated that she knew Maness had not killed Misty, and that she had not gone to the store on the afternoon in question. Second, Maness attempted to call his sister-in-law, Dana Maness, to testify that Linda had made statements to her exculpating Maness (but not inculpating herself). Third, Maness also attempted to have his mother testify as to an out-of-court statement made by Linda to her, which he hoped would cast doubt on Linda’s credibility by contradicting one detail in her testimony. All of this evidence was excluded by the state trial court on the authority of the Florida voucher rule.

II.

Maness grounds his case for federal habeas corpus relief upon the single case of Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), which held that a Mississippi trial court’s rigid application of that state’s voucher and hearsay evidentiary rules had resulted in a denial of due process. Maness argues that factual parallels between his case and Chambers demand the same result here.

Chambers was convicted of murdering a policeman who was killed in the aftermath of a barroom brawl involving a sizeable crowd. After chambers’ arrest, another man, Gable McDonald, made a confession to police which he later repudiated. At Chambers’ trial, there was little hard evidence that Chambers had shot the officer, and part of Chambers’ defense was to show that it was in fact McDonald who had committed the crime. Since the state did not call McDonald, Chambers had to call him as his own witness. He introduced McDonald’s written confession, but on cross-examination by the state, McDonald repudiated it as having merely been part of a scheme initiated by one Stokes to get Chambers out of jail, whereupon they would all share in the proceeds of a lawsuit Chambers would bring against the city. Since McDonald had been called by the defense, he could not be cross-examined by Chambers’ attorney under the Mississippi voucher rule, which is for all practical purposes identical to the voucher rule of Florida whose application is challenged here by Maness. Furthermore, Chambers offered three different witnesses who would have testified that McDonald had admitted that it was he, not Chambers, who shot the officer. None of these three out-of-court confessions was allowed into evidence under the Mississippi hearsay rule which does not recognize admissions against penal interest as an exception to the hearsay exclusion. Thus the combined effect of the Mississippi hearsay and voucher rules prevented Chambers from introducing testimony which strongly implicated McDonald, rather than Chambers, as the guilty party.

Maness has argued that Chambers should be read as holding that the voucher rule cannot be applied in a state criminal proceeding if it operates to hamper the defendant’s development or presentation of a defense theory. Maness also recognizes that the holding in Chambers was closely tied to the facts in that ease, but asserts that there is no appreciable difference between his case and Chambers’, if his interpretation of Chambers, stated above, is correct.

We believe, however, that the interpretation of Chambers offered by Maness is too broad. The Supreme Court did question the wisdom of the common law voucher rule in the context of criminal trials, particularly in the situation faced by Chambers: a witness vital to the defense yet unlikely on direct examination to give favorable defense testimony could be brought to the witness stand only by the defense’s foregoing the ability to cross-examine and impeach that witness. However, the Court did not base its reversal of Chambers’ conviction on a violation of his Sixth Amendment right to confront the witnesses against him. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Rather, the Court concluded that a combination of the voucher rule and the hearsay rule, as applied, “denied [Chambersl a trial in accord with traditional and fundamental standards of due process.” Chambers, supra, 410 U.S. at 302, 93 S.Ct. at 1049. In reaching this conclusion, the Court carefully and extensively pointed out that the hearsay statements excluded from Chambers’ trial were “made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability.” Chambers, supra at 300, 93 S.Ct. at 1048. The cumulative effect of the trial court’s rulings rendered Chambers’ defense “far less persuasive than it might have been had he been given an opportunity to subject McDonald’s statements to cross-examination or had the other confessions been admitted.” Chambers, supra at 294, 93 S.Ct. at 1045.

It is apparent from a reading of the Supreme Court’s opinion that Chambers’ trial was a palpable miscarriage of justice. The state court had excluded evidence that strongly pointed the finger of guilt at McDonald while the evidence against Chambers was minimal. Furthermore, McDonald’s inculpation spelled Chambers’ exculpation, since the state’s evidence precluded the theory that more than one person was responsible for the killing. Chambers, supra at 297, 93 S.Ct. 1038.

We cannot read Chambers as broadly as Maness would have us, because the Court explicitly stated, “In reaching this judgment, we establish no new principles of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedure.” Chambers, supra at 302, 93 S.Ct. at 1049. If Chambers was intended to cast a pall of unconstitutionality upon all state voucher rules, it would have established a new principle of constitutional law. Likewise, if Chambers meant to suggest that due process is denied when the exclusion of defense evidence pursuant to longstanding rules of evidence results in a less persuasive defense, it would also have established a new principle of constitutional law.

In deciding this case on the basis of Chambers, we are presented with a question of degree: was Maness’ defense “less persuasive” to such a degree that we must conclude that his right to a fair trial was violated? While Maness would argue that superficial factual parallels control the outcome, we believe it is necessary to closely examine the effect on his defense worked by the voucher rule’s application.

The strongest point of Maness’ argument is that he should have had the opportunity to subject Linda to cross-examination. Chambers held that an accused’s Sixth Amendment right to confront witnesses “against” him is not strictly limited to the confrontation of witnesses called by the state. Chambers, supra at 297 — 98, 93 S.Ct. 1038. Chambers’ inability, because of the voucher rule, to cross-examine McDonald was thus one prong of the Court’s holding that Chambers had been denied due process. At Maness’ trial, Linda testified that he had slapped Misty in the face on the day in question. In addition, her extrajudicial statement to Dana Maness and her letters to Maness, as well as Maness’ own testimony (contrary to his sworn statement) put her present in the home during the period when Misty apparently sustained the fatal injuries. Maness’ defense involved at least a veiled accusation that Linda, rather than he, inflicted the injuries. It would certainly have furthered “the integrity of the fact-finding process,” Chambers, supra at 295, 93 S.Ct. at 1046, if Maness had been allowed to cross-examine her.

Secondly, there is the written evidence of the letters from Linda to Maness which purportedly contain material tending to exculpate Maness. Unfortunately, these letters are not part of the record on appeal and it is therefore impossible to evaluate with any assurance the possible impact they may have had on Maness’ defense. We note, however, that the state trial court initially excluded these letters because of their irrelevance to Linda’s testimony; it also ruled that they did not contradict Linda’s testimony that she was not at home on the afternoon in question. Such a ruling is an indication that the content of the letters, when viewed in context, was less persuasively favorable to Maness’ defense than the abbreviated allegation of their contents in the habeas petition.

Thirdly, Maness points to the exclusion of the testimony of Dana Maness, to whom Linda allegedly admitted that Maness had not touched the baby, that Linda did not know what had happened and had not gone to the store during the afternoon in question. We are reluctant to attribute to this hearsay testimony from Maness’ sister-in-law the same degree of trustworthiness and reliability which the Supreme Court found in the testimony of the three witnesses to whom McDonald confessed in Chambers. In Chambers, there was independent corroboration of McDonald’s admission. Maness asserts that the out-of-court statements here have indicia of reliability. However, this assertion rests primarily upon the fact that Maness’ testimony, his sister-in-law’s proffered testimony and the letters which have not been made available to us all cross-corroborate each other.

Finally, there is the testimony of Ruth Maness, the petitioner’s mother. She would have testified that Linda told her that some baby blankets found in the Maness home in the course of the police investigation had become bloodied as a result of Linda’s menstrual period. This extrajudicial statement contradicts Linda’s testimony that the source of the blood was the baby’s cracked gum, thereby raising a question of Linda’s overall credibility. Again, as with Dana Maness, we do not find in a close relative’s testimony the “persuasive assurances of trustworthiness” cited by the Court in Chambers, supra at 302, 93 S.Ct. 1038.

The application of the voucher rule in Maness’ case undoubtedly worked to his detriment. Some evidence which suggests his innocence was excluded. However, the net effect of Linda’s testimony, petitioner’s own testimony, the excluded letters, and the proffered testimony of Ruth and Dana Maness is that neither petitioner nor Linda knew what caused Misty’s death. Petitioner offered the rather unrealistic explanation that the baby may have fallen down, gotten caught in her crib, or hit herself in the head with her bottle. This trial record, our inability to find any positive indicia of the reliability of the hearsay testimony of Ruth and Dana Maness, and the unavailability of the letters for our inspection lead us to conclude that the voucher rule’s application did not deprive Maness of a trial in accord with notions of fundamental fairness embodied in the due process clause.

The common law voucher rule has occasionally been the subject of criticism .by the federal judiciary. See Chambers, supra at 295 — 97, 93 S.Ct. 1038; United States v. Prince, 491 F.2d 655, 659 (5th Cir. 1974); United States v. Torres, 477 F.2d 922 (9th Cir. 1973); United States v. Freeman, 302 F.2d 347 (2d Cir. 1962). Its demise in the federal courts is at hand; Rule 607 of the recently promulgated Federal Rules of Evidence, effective July 1, 1975 provides: “The credibility of a witness may be attacked by any party, including the party calling him.” Nevertheless, it is clear that state evidentiary rules need not be mirror images of evidentiary rules applied in the federal courts in order to pass constitutional muster. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). “The due process clause has always been interpreted as permitting the states wide latitude in fashioning rules of evidence and procedure.” Bassett v. Smith, 464 F.2d 347, 351 (5th Cir. 1972). Chambers has not altered this principle; indeed, it explicitly reaffirmed “the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.” Chambers, supra, 410 U.S. at 302, 93 S.Ct. at 1049. Under all the facts and circumstances, we simply cannot say that Maness was denied his right to a fair trial.

The judgment of the district court denying the petition for a writ of habeas corpus is

Affirmed.

CLARK, Circuit Judge

(dissenting).

The divine plan that put the tender life of Misty Maness into the hands of her parents is both unknowable and incomprehensible. The distinction which the majority perceives between the proof wrongly excluded in Chambers v. Mississippi and that refused in the case at bar is almost as obscure to me.

The state’s case against Gary Maness was predicated upon his confession. The defense was built upon its repudiation. Gary tried to show that he “took the blame” because of a concern for his wife Linda, enhanced by a belief that she was pregnant. Dana Maness, his sister-in-law, offered testimony which tended to exculpate Gary and corroborate his recantation. The missing letters from wife Linda, according to our only information as to their content, not only supported Dana’s statements but also substantiated the theory of Gary’s defense. Misty received fatal wounds while she was in the custody of Gary or Linda, or both of them. Gary’s confession assumed sole responsibility, subject to the implausible possibility of self-injury. Linda’s letters and Dana’s statements tended to cast more than a reasonable doubt that Gary alone was guilty. The letters and testimony were excluded solely because of the Florida voucher rule which sanctified Linda’s testimony from attack by Gary.

As I perceive the due process principle announced in Chambers, it commands that every material source of evidence as to what was said and done by the principal players in this domestic tragedy should be laid before the triers of fact. At a minimum, it seems to me that this case must be remanded for a determination of the authenticity and content of Linda’s letters. If these were her letters and read as described, it further is my view that habeas corpus relief should be granted and Florida should be required to retry Gary in a fair proceeding which admits all of the facts in testing for the truth.

I respectfully dissent.

      . The letters from Linda Maness which were proffered at trial were not submitted with the petition for a writ of habeas corpus filed by Maness in the district court below. The district court found that in the letters written by Linda, “she allegedly admitted that she was pregnant; that she knew petitioner had not done it; that she felt guilty about what she was doing to petitioner; and that she was not at the store during the afternoon of April 14, 1971.” (Emphasis added.)

      . In its findings of fact, the district court stated that the exclusion of Dana Maness’ testimony was based upon the hearsay rule.

        The briefs of both parties on appeal, however, point out that the state tria! court excluded her testimony on grounds of the voucher rule. Our disposition of Maness’ contentions would be the same, however, whether the exclusion was based upon voucher or hearsay; hence we find it unnecessary to determine whether the district court’s finding of fact was “clearly erroneous.”

      . Maness was convicted on October 5, 1971. Chambers, supra, was decided by the United States Supreme Court on February 21, 1973. The district court determined that there was no question of the retroactivity of Chambers because the Supreme Court stated that it was announcing no new principle of constitutional law. Chambers, supra, 410 U.S. at 302, 93 S.Ct. 1038. In affirming the district court’s denial of habeas corpus relief to Maness, we express no view on the question of Chambers' retroactivity.