author: GOLDBERG, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Manuel Rivas CISNEROS, Defendant-Appellant.
    No. 73-1987.
    United States Court of Appeals, Fifth Circuit.
    April 1, 1974.

      Alan Brown, Frederick J. Deyeso, Jr., San Antonio, Tex., for defendant-appellant.
    William S. Sessions, U. S. Atty., Joel D. Conant, John M. Pinckney, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.
    Before BROWN, Chief Judge, and GEWIN and GOLDBERG, Circuit Judges.
   GOLDBERG, Circuit Judge:

Manuel Rivas Cisneros appeals from his conviction on one count of distribuíing approximately 4.48 grams of heroin in violation of 21 U.S.C. § 841(a)(1) (1970) , He argues that the trial court exceeded the scope of permissible comment on the evidence with certain remarks to the jury about the demeanor of the chief defense witness. He also argues that the court improperly instructed the jury on the use of evidence of a prior felony conviction. We agree that the trial court committed prejudicial error on each point, and reverse the conviction.

I.

The principal evidence in support of the Government’s case against appellant Cisneros came from Officer Jose C. Lo-soya of the San Antonio, Texas, Police Department, who at the time of the operative events in this case was working as an undercover narcotics officer. According to Officer Losoya, on October 10, 1972, he and an unidentified “cooperating individual” were attempting to make heroin buys in order to gather evidence against street pushers. At about noon appellant Cisneros approached the pair, and after initial introductions by the informant, agreed to make a sale to Officer Losoya, the exchange to take place an hour later at the same location. Thereafter Officer Losoya and the informant met one Victor Rodriguez Lopez, a/k/a “Chocolate,” who also agreed to make a sale to Officer Losoya. Following a rather involved, and for the purposes of this appeal irrelevant, series of events, Victor Lopez, Officer Losoya, and the informant met Cisneros, and Lopez purchased a quantity of heroin from Cisneros using money he had received from Officer Losoya.

Officer Losoya testified that both the initial meeting with Cisneros and the later heroin sale took place in the immediate vicinity of a house on Vine Street, which later investigation revealed was owned by Cisneros’ parents, though it was not the family residence. Officer Losoya also testified that at the time of the second meeting and sale Cisneros was driving a blue Impala, which subsequent investigation showed belonged to Rogelio Cisneros, appellant’s father. Appellant stipulated that he had bought the automobile for his father on September 30, 1972, paying in cash and listing the Vine Street address on the title. Officer Losoya also said that he had seen both Cisneros and Victor Lopez “around the streets” prior to October, 10, 1972.

In response to this evidence defense counsel presented testimony from both Victor Lopez and appellant Cisneros. Lopez admitted his own drug addiction, and conceded that he had sold heroin to Officer Losoya on October 10, 1972, under circumstances substantially similar to those described by the officer. He strongly denied, however, that Cisneros had been in any way connected with the sale, insisting, as he did at his arraignment, that he had sold Officer Losoya part of his personal supply of heroin, from which he often made sales to other addicts to support his own habit. Lopez claimed that he had recognized Losoya’s companion, a black known to him as Grande, as a possible informer, but said that he had never previously seen Officer Losoya.

Witness Lopez gave confusing testimony about his acquaintance with Cisneros prior to October 10, 1972. Because of the importance of this testimony to appellant’s first point of error, we quote from the trial transcript at length.

On Direct Examination (Tr. at 61):

MR. BROWN (for Cisneros): Do you know this man here, Manuel Cisneros ?
LOPEZ: I have seen him.
MR. BROWN: Where did you see him?
LOPEZ: I don’t know. He might live in the neighborhood.
MR. BROWN: You have seen him around the neighborhood there?
MR. LOPEZ: Yeah.
MR. BROWN: Have you ever talked to him?
LOPEZ: No, not just like that.

On Cross-examination (Tr. at 79-80):

MR. PINCKNEY (for the United States): And you stated that you had never met Mr. Cisneros, is that correct ?
LOPEZ: Sir?
MR. PINCKNEY: You never until this day in this courtroom met Mr. Cisneros, is that correct ?
LOPEZ: No, sir.
MR. PINCKNEY: You don’t know Mr. Cisneros, you have never known him?
LOPEZ: Well, I have seen him like that, you know.
MR. PICKNEY: But I mean just in the Courtroom?
LOPEZ: Sir?
MR. PINCKNEY: You had never seen him on the streets, you had never met him or anything ?
LOPEZ: No, sir.

Appellant Cisneros testified that though a frequent visitor in San Antonio, he had lived in Chicago with his wife and children for fifteen years. He said that on October 10, 1972, he was in San Antonio preparing to return to Chicago, and admitted that in August 1972 he had been arrested on a charge of possession of heroin with intent to distribute. He admitted being an addict, but denied that he had participated in any way in the events of October 10, 1972, described by Officer Losoya. He conceded that he had seen Mr. Lopez in the past, and insisted that he had never before seen Officer Losoya.

Because of the importance of the testimony relating to the pre-October 10 relationship between Cisneros and Lopez, we again quote at length from the trial transcript.

On Direct Examination (Tr. at 82):

MR. BROWN (for Cisneros): Now, had you ever seen this man Lopez before ?
CISNEROS: I have seen him several times.
MR. BROWN: Around the neighborhood?
CISNEROS: Yes, sir.
MR. BROWN: Did you know him casually, to say hello to him or something ?
CISNEROS: Yeah, I had seen him, I cannot say exactly. I have been away from San Antonio for approximately—well let’s say fifteen years

On Cross-examination (Tr. at 91-92):

MR. PINCKNEY (for the United States): . . . And you stated on Direct Examination you have never met Mr. Lopez ?
CISNEROS: I have seen him before.
MR. PINCKNEY: Have you spoken to him around that area, around Clark and Vine [the vicinity of the heroin sale] ?
CISNEROS: No—
MR. PINCKNEY: Well, where had you spoken to Mr. Lopez ?
CISNEROS: Like I said, I have been away, and I haven’t seen most of the people in San Antonio because I have been away so long.
MR. PINCKNEY: Did you know Mr. Lopez before you left San Antonio?
CISNEROS: I know Mr. Lopez, I can’t say—well, no, sir, I did not know him before I left Chicago. Fifteen years ago I didn’t know him.
MR. PINCKNEY: When do you remember speaking to him on the streets of San Antonio ?
CISNEROS: I remember seeing Mr. Lopez I would say three years ago at the most.
MR. PINCKNEY: Three years ago?
CISNEROS: Yes, sir.
MR. PINCKNEY: You remember him, he does not recall you ?
CISNEROS: Well, I don’t know whether he recalls me but—
MR. PINCKNEY: But you remember seeing him?
CISNEROS: Yes, sir.

II.

We preface our analysis of appellant’s two points of error with the recognition that in reviewing a trial judge’s instructions and comments to the jury, we must evaluate “the charge as a whole, in its totality, without isolating statements which may appear prejudicial from the context in which they were made.” United States v. Williams, 5 Cir. 1973, 473 F.2d 507, 509; United States v. Jacquillon, 5 Cir. 1972, 469 F.2d 380, 386-387; United States v. Wilkinson, 5 Cir. 1972, 460 F.2d 725. Thus the dry, detached scrutiny of the appellate microscope must be tempered by the Supreme Court’s admonition to “guard against the magnification on appeal of instances which were of little importance in their setting.” Glasser v. United States, 1942, 315 U.S. 60, 83, 62 S.Ct. 457, 471, 86 L.Ed. 680, 706.

Near the end of the instructions to the jury, the court made the following comment, the emphasized portions of which Cisneros claims interfered with his right to a fair trial.

Now, members of the jury, I often do not comment upon evidence presented but the rules of law in Federal Court permit some comments, and I am expressing no opinion, but I am saying to you very frankly that my opinion that somebody is lying in this case. Officer Losoya has given a detailed description of his actions on that day. He made a record of it that day of just what his actions were, and how this whole transaction took place. Now, he is corroborated in one detail by Lopez testifying for the defendant, that Lopez was in his car, but I ask you where, if any place, that Lopez said that Cisneros rode with either Lopez or talked to Officer Losoya. Lopez said that he didn’t even know this man. You saw Mm in Court, you saw Mm on the stand, and you saw him leave. Perhaps something, significant happened, perhaps it didn’t as he was leaving this Courtroom. Perhaps you noticed something that I noticed, perhaps you didn’t. But nevertheless I am just saying that you can judge a person from his actions from the minute he came in the door until he goes out that door. And if any of you noticed anything significant, why, you may, remember and act on it. But we have the testimony of Cisneros who said “Yes, I saw that man around the neighborhood, but I never was in the car with that man that day, never had any Heroin, never got any money, he has to be lying— the Officer has to be lying,” although he had no direct interest in the outcome of this case except for doing his duty. The defendant is vitally interested. You may draw a conclusion, you may reconcile those stories, if they are reconcilable. Or if not reconcilable take the one that you believe and act on it.

[Tr. at 109-10, emphasis added]

Appellant’s challenge requires us to fit the facts of this case within a number of well-settled propositions broadly outlining the powers of a federal trial judge. The starting point for this difficult task "is Quercia v. United States, 1933, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321, in which Chief Justice Hughes, speaking for a unanimous court, made what one distinguished scholar has called “the classic statement” of the common law powers with which federal trial judges are clothed. The Chief Justice wrote:

In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purposes of assuring its proper conduct and of determining questions of law. [citations omitted] In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the part of it which he thinks important, and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. [citations omitted] Under the Federal Constitution the essential prerogatives of the trial judge as they were secured by the rules of the common law are maintained in the federal courts. [citations omitted]

289 U.S. at 469, 53 S.Ct. at 698, 77 L.Ed. at 1324-1325.

The Government’s argument in the case at bar is essentially that the challenged comments fall within the latitude of permitted powers described in Quercia. The judge’s remarks were apparently prompted by his belief that he had seen a signal of encouragement or acknowledgment passing between witness Lopez and Cisneros as Lopez left the stand and passed the defense table. Unfortunately the trial record does not reveal the exact nature of this alleged communication. According to the Government, in its brief and again when pressed at oral argument, Lopez’ actions when he passed the defense table manifested “an obvious and open display of affectionate friendship between himself and the Defendant,” which was “obvious to everyone in the courtroom . . . .” (Brief for Appellee at 3.) On the other hand, counsel for Cisneros, who was also the trial counsel, has, in his brief and at oral argument, described the incident only as the “alleged” and “asserted” visual contact between the two. E. g., Brief for Appellant at 13. This court does not sit to resolve factual disputes regarding what did or did not occur at a trial; nevertheless, we note that the trial judge’s own comments to counsel, outside the hearing of the jury, suggest that whatever he saw was more in the nature of an exchange of looks than an open physical action. In any event, his comment to the jury clearly communicated his belief that he had detected something suspicious in Lopez’ behavior.

The Government would have it that this was merely an example of the trial judge exercising his power to analyze, comment on, or summarize the evidence. United States v. Jacquillon, supra, 469 F.2d at 387; United States v. Dopf, 5 Cir. 1970, 434 F.2d 205, 209; Moody v. United States, 5 Cir. 1967, 377 F.2d 175, 178-179. After all, the demeanor of a witness is part of the evidence, and the trial judge was simply remarking on Lopez’ actions while leaving the witness stand. Admittedly, the court must, if it chooses to comment on the evidence, also instruct the jury that they are the sole judges of the facts and are not bound by the judge’s questions or comments. United States v. Jacquillon, supra; United States v. Musgrave, 5 Cir. 1971, 444 F.2d 755, 761-762; Moody v. United States, supra, 377 F.2d at 179. The trial judge below did give a qualifying, curative instruction, and thus the comments could not have misled the jury and deprived Cisneros of a fair trial.

As a matter of theory we have no quarrel with the argument that

the carriage, behavior, bearing, manner and appearance of a witness—in short, his “demeanor”—is a part of the evidence. The words used are by no means all that we rely on in making up our minds about the truth of a question that arises in our ordinary affairs, and it is abundantly settled that a jury is as little confined to them as we are. They may, and indeed they should, take into consideration the whole nexus of sense impressions which they get from a witness.

Dyer v. MacDougal, 2 Cir. 1952, 201 F.2d 265, 268-269 (L. Hand, J.). Indeed, where credibility of a witness is a central element in a case, the demeanor of that witness is likely to go to the very heart of the decision. Nor do we disagree with the general validity of the other legal principles on which the Government seeks to rely. We are convinced, however, that the propositions urged by the Government do not accurately describe what occurred in the trial below. . For help with that task we turn to several decisions which have sought to define the outer limits of a trial judge’s discretionary power.

Again we begin with Chief Justice Hughes’ opinion in Quercia v. United States, supra:

This privilege of the judge to comment on the facts has its inherent limitations. His discretion is not arbitrary and uncontrolled, but judicial, to be exercised in conformity with the standards governing the judicial office. In commenting upon testimony he may not assume the role of a witness. He may analyze and dissect the evidence, but he may not either distort it or add to it. His privilege of comment in order to give appropriate .assistance to the jury is too important to be left without safeguards against abuses. The influence of the trial judge on the jury “is necessarily and properly of great weight” and “his lightest word or intimation is received with deference, and may prove controlling.” This court has accordingly emphasized the duty of the trial judge to use great care that an expression of opinion upon the evidence “should be so given as not to mislead, and especially that it should not be onesided;” that “deductions and theories not warranted by the evidence should be studiously avoided.” [citations omitted] He may not charge the jury “upon a supposed or conjectural state of facts, of which no evidence has been offered.” [citations omitted]

289 U.S. at 470, 53 S.Ct. at 699, 77 L.Ed. at 1325 (emphasis added).

Through many variations on the Quercia theme sound certain recurrent prohibitions. A trial judge must not appear to be a partisan for the prosecution, or in any way exhibit a prosecutor’s zeal. United States v. Musgrave, 5 Cir. 1971, 444 F.2d 755, 761; United States v. Marzano, 2 Cir. 1945, 149 F.2d 923, 926. Nor may he give testimony, be a partisan witness, or add to the evidence adduced by either side. Blunt v. United States, 1957, 100 U.S.App.D.C. 266, 244 F.2d 355, 365. Most important, he must in no way trespass on the jury’s functions and responsibilities, among the most important of which in terms of this appeal is the right to assess credibility in finding the facts. United States v. Williams, 5 Cir. 1971, 447 F.2d 894, 902; United States v. Dopf, supra, 434 F.2d at 208; cf. United States v. Stroble, 6 Cir. 1970, 431 F.2d 1273, 1278.

Read against the backdrop of these prohibitions, the validity of Cisneros’ complaint is clear. The testimony presented by each side concerning Cisneros’ involvement in the heroin sale was in stark, irreconcilable conflict; indeed, the trial judge’s comment that “somebody is lying’’ aptly characterizes the case. Thus the credibility of the witnesses, particularly Lopez, was of overriding importance. Underscoring the importance of the credibility issue was the probable unequal position from which the witnesses began in the minds of the jurors—on the one hand, a police officer, on the other hand two apparent denizens of the nether world of street dope.

For Cisneros to prevail, the jury had to believe Lopez’ version of the events of October 10. Because Lopez’ credibility could be seriously impaired if it were shown that he and Cisneros were good friends, the pre-October 10 relationship between the two was a very important issue. The testimony given by Lopez and Cisneros about their previous relationship was somewhat ambiguous, but in our opinion was not necessarily inconsistent or irreconcilable. The Government probed the question of this relationship with some vigor, but there was never any evidence from any source to suggest that Lopez and Cisneros had planned or arranged to fabricate exculpatory testimony. It is not implausible that such a thing might have occurred; in this case, however, there was nothing concrete to carry this possibility from the realm of mere speculation, nothing, that is, but the comments from the trial judge.

Certainly a witness’ credibility is measured in part by his demeanor while on the stand. Here, however, the trial judge in effect added evidence about Lopez’ demeanor by bringing to the jury’s attention something they might well have missed. The thrust of the remarks was that something significant had transpired, something which in the judge’s mind reflected on Lopez’ credibility, something which the jury could consider if they had seen it. It strikes us as unlikely that a juror would willingly admit to having missed something the trial judge considered important, and even more unlikely that the jury would decline an invitation to consider something the trial judge clearly believed to be significant. By his comments the trial judge became for a short moment a witness in this trial, testifying about something he had seen. In all probability he intended only to exercise his power to comment on the evidence, but instead he added facts, thus violating one of Quercia’s basic prohibitions. Moreover, he came very close to behaving for an instant as an actual witness for the prosecution. In view of the apparent confusion regarding what actually happened when Lopez left the stand, the judge’s comments also seriously interfered with the jury’s duty of evaluating credibility and finding the facts.

We do not agree with the Government that the cautionary instructions advising the jury of its role as fact-finder preserved the scales of justice in balance. In the first place, the main instruction to that effect was delivered well before the comments on Lopez’ demeanor, which came near the end of the instructions. More important, though we decline to speculate on the probable efficacy of limiting instructions as a general matter, we believe that the comments here challenged were simply too harmful to be cured by the other instructions given to the jury. The credibility issues before the jury were close, difficult, and extremely important. In such a case commenting on the evidence is a perilous endeavor, to be undertaken with caution lest the slightest suggestion of favor for one side or the other from the supposedly impartial moderator tip the balance and impel a decision. Here the trial judge, in the guise of fair comment, overreached, and by adding evidence on the credibility of a key witness seriously impaired appellant’s right to a fair and impartial trial.

III.

At trial appellant Cisneros elected to take the stand on his own behalf. On cross-examination the Government questioned him about a previous felony conviction for possession of heroin with intent to distribute. In regard to the prior conviction evidence the judge instructed the jury as follows:

Now, members of the jury, a prior conviction also may be introduced into evidence, only if it’s a felony, and that may be used to impeach the credibility of the witness. And it is your judgment on that that determines the weight to be given the testimony of one who has been convicted of a felony. And the fact that he was convicted prior is not evidence that he committed the crime charged in this case that is now being tried, and must not be considered as such by you. Members of the jury, we find out the conviction was in a matter that involved Heroin. And prior and subsequent acts of the defendant may be considered by a jury in connection with the likelihood of such a person being involved in a crime of this sort. You can give such weight to that as you care to give, but it may be considered by you as to the likelihood of him engaging in other acts of the same character.

Tr. at 111 (emphasis added). Cisneros argues that the italicized portion of this instruction was prejudicially erroneous because it allowed the jury to consider the prior conviction as direct evidence of his guilt in the subsequent, unrelated case.

Although the use of evidence of other crimes always poses difficult problems in balancing relevance against the dangers of prejudice to an accused and confusion of the issues in the minds of the jurors, this Circuit has long followed the rule that a defendant who takes the witness stand to testify in his own defense puts his character in issue. The Government may then attempt to impeach his credibility by presenting evidence of prior convictions of either felonies, or misdemeanors involving moral turpitude. United States v. Garber, 5 Cir. 1972, 471 F.2d 212, 215-216, and cases cited therein at 216 n.11. See United States v. Sanchez, 5 Cir. 1973, 482 F.2d 5, 7; 2 Wright, supra note 5, § 416 at 194-96. Thus it is clear that the trial court acted properly in admitting the prior conviction for impeachment purposes, and in instructing the jury to that effect.

It is equally clear, however, that the jury may not “use the prior conviction evidence for the purpose of considering either defendant’s general bad character or his disposition to commit crimes,” at least where defendant has made no attempt to show that he is a person of good character. United States v. Garber, supra, 471 F.2d at 216 & 216 n.12. See United States v. Calles, 5 Cir. 1973, 482 F.2d 1155, 1161; United States v. Nakaladski, 5 Cir. 1973, 481 F.2d 289, 296; 2 Wright, supra note 5, at § 409. Yet the challenged portions of the court’s instructions in the case at bar invited the jury to do just that, notwithstanding the lack of any attempt by Cisneros to prove his good character. In fact, not only did the court allow the jury to consider the evidence for a prohibited purpose, but it did so tracking the very words commonly used to describe the prohibition.

The Government, which introduced the evidence for impeachment purposes only, concedes that the challenged instructions were erroneous, but responds that in the light of the entire record the error was harmless beyond a reasonable doubt. We disagree.

We are not persuaded by the Government’s characterization of the case against Cisneros as “exceptionally strong” and “overwhelming.” The only evidence directly linking Cisneros to the October 10 heroin sale was the testimony of Officer Losoya. While it is true that witness Lopez corroborated most of the details of Losoya’s story, he flatly contradicted the only portion implicating Cisneros. The other witnesses for the Government did little more than establish what Cisneros was willing to concede, that he purchased an automobile in which he was seen riding on the day of the sale, and that the property near which the sale occurred belonged to his parents. Of course the Government might have corroborated the most important detail in Officer Losoya’s story with direct evidence in the form of testimony from the informer, but for obvious reasons it chose not to do so.

We believe that this case is squarely controlled by United States v. Garber, supra. There the defendant, accused of transporting in interstate commerce a stolen vehicle knowing it to have been stolen, took the stand and was questioned about his prior Dyer Act convictions. ' In rebuttal summation to the jury the prosecutor twice argued that the prior conviction evidence showed the defendant’s propensity to commit the crime for which he was then on trial. This court concluded that the argument constituted reversible error, although the defendant had not objected at the time of the comments and despite the subsequent instructions by the court that the prior conviction evidence was to be considered only for impeachment purposes.

In his thoughtful and careful opinion Judge Roney, writing for the court, cautioned that

[t]he critical balance between the permissible and impermissible uses of the prior conviction evidence, and the mental discipline required of the jury to restrict the. use of this evidence require that the Court, counsel, and all persons appearing before the jury exercise the same discipline required of the jurors. A prophylactic atmosphere must permeate the trial if this rule of evidence is to be properly applied.

471 F.2d at 216 (emphasis added). In Garber it was the prosecutor who upset the critical balance, disrupted the jury’s mental discipline, and infected the prophylactic atmosphere; in the case at bar it was the Court, and the probability of prejudice to the defendant was magnified accordingly. It may or may not be true that “the criminal justice system expects too much of a juror when it asks him to distinguish between impeaching evidence and substantive evidence,” Id. at 215; it certainly expects too much if it asks him to do so in the face of explicit instructions from the Court to the contrary.

IV.

We do not mean to suggest that criminal trials must be run with the punctilio of the duelist’s code. After all, our Constitution and laws command fair trials, not perfect ones. Yet we do not reverse this case because of trivial peccadillos. We reverse because our criminal justice system guarantees the primacy of the jury over the robed judge in fact finding, and because our jurisprudence premises conviction on guilt of the crime charged, not on antecedent or subsequent sins. The judge’s role is not that of catalyst for a guilty verdict. He sits, not to lead the jury down a direct road to a particular verdict, but to offer guidance along the sometimes meandering road to the truth. He is neither an imperator nor a jury surrogate.

Reversed and remanded.

      . Appellant was sentenced to fifteen years in prison, plus an additional special parole term of ten years.

      . As required by Fed.R.Crim.Proc. 30, appellant’s counsel voiced his objections at the appropriate time, thus preserving the allegations of error for review.

      . The informant did not testify at Cisneros’ trial, and the Government declined to identify him for security reasons.

      . Lopez was named as a co-defendant with Cisneros in the indictment resulting from the October 10 transaction. At the arraignment on February 23, 1973, Lopez pleaded guilty. He told the arraigning judge, who was not the presiding judge at Cisneros’ later trial, that he had not purchased the heroin sold to Officer Losoya from anyone else, but rather had simply used some of his own personal supply. [Record at 14] At the time of Cisneros’ trial, Lopez was awaiting sentencing.

      . 2 Wright Federal Practice and Procedure: Criminal § 488 at 304 (1969).

      . At oral argument counsel for the Government described the action as very close to a “V” for victory sign.

      . In ruling on Cisneros’ objection to the comment, the court said, out of the presence of the jury,
      I will say to you right now that the way he looked back and caught the eye of that fellow would convince anybody that watched it that they were not only friends, but ask him did he do a good job for him. That’s all I said, if they saw it they could consider it.
      TR. at 112.

      . For a summary of oases exploring the propriety of particular comments and remarks by a trial judge, see 2 Wright, supra note 5, at 308 nn. 94 & 95.

      . Now, you as jurors are the trier of the facts. . . . And may I say in referring to the testimony, either counsel or the Court inadvertently says something about the testimony that doesn’t coincide with your recollection of it, you use your own recollection as to what the testimony actually was. Forget anything that either one of us actually said about it, any one of the three of us said about it. And use your own recollection and make your resolutions of the facts based upon your own recollection.
      TR. at 101.

      . See Bruton v. United States, 1968, 391 U.S. 123, 132-133 & 132 n. 8, 88 S.Ct. 1620, 20 L.Ed. 476, 483 & 483 n. 8.

      . The Supreme Court in Quercia reached the same conclusion about the effect of a trial judge’s instruction that his opinion of the evidence was not binding on the jury and that if they did not agree with it they should find the defendant not guilty. There the judge had remarked to the jury that they might have noticed the defendant wiping his hands as he testified, that this usually indicated lying, and that in the court’s opinion the defendant had lied in every respect except when agreeing with the Government. See Moody v. United States, supra, 377 F.2d 175.

      . See TR. at 88-90. Cisneros was convicted for acts occurring on August 23, 1972, only 48 days prior to the violation charged in the instant case. On appeal his conviction was affirmed without opinion on June 26, 1973, United States v. Gonzales, 5 Cir., 478 F.2d 1401.

      . Because the earlier conviction was on appeal at the time of the trial in the instant case, Cisneros also argues that the prior crime evidence should have been excluded altogether. We recognize the existence of a split among the circuits on this issue, see United States v. Franicevich, 5 Cir. 1973, 471 F.2d 427, 430 (Goldberg, J., dissenting). Nevertheless, this Court has only recently directly and explicitly refused to adopt the proposition urged by Cisneros, United States v. Franicevich, supra, followed in United States v. Sanchez, 5 Cir. 1973, 482 F.2d 5.

      . Appellant does not challenge the decision of the trial court to allow the evidence to be introduced or the propriety of the Government’s cross-examination, conceding that if the prior conviction was admissible though still on appeal, it was properly admitted for impeachment purposes. We therefore do not face the question raised by Judge Godbold in United States v. Garber, 5 Cir. 1972, 471 F.2d 212, 218 (concurring opinion), of the propriety of the trial judge’s decision that probative value outweighed prejudicial effects.


source: Caselaw Access Project

author: ALDRICH, Senior Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Gerald JETT, Defendant, Appellant.
    No. 73-1281.
    United States Court of Appeals, First Circuit.
    Argued Jan. 7, 1974.
    Decided Feb. 8, 1974.

      Michael A. Paris, Boston, Mass., with whom Leppo & Paris, was on brief, for defendant-appellant.
    Lawrence P. Cohen, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
    Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
   ALDRICH, Senior Circuit Judge.

Gerald Jett was convicted as a result of jury verdicts on three counts charging disposition of cocaine in violation of 21 U.S.C. § 841(a)(1). His chief claim on this appeal is that, for a number of reasons, he should have received directed verdicts of acquittal. We affirm.

The principal government witness was narcotics special agent O’Brien. He testified to a meeting with Jett in an apartment in Boston. Also present was Loren Jacobs, a government informant who had brought Jett to O’Brien’s attention. Jett produced a plastic bag which he announced contained cocaine for which he had paid $1000 an ounce. He sifted out an ounce and gave it to O’Brien in exchange for $1200. It was, in fact, cocaine. Five days later O’Brien met Jett in a motel in Springfield. Jacobs was not present. Again Jett produced a plastic bag containing a white powder. This time he stated that it was cocaine which “his people in Boston” had obtained from Peru. The bag contained four ounces of cocaine, and O’Brien paid Jett $4300 therefor. Jett then asked O’Brien if he would be willing to purchase a pound, saying that his “man . . . would trust him [Jett] to front the cocaine.” O’Brien indicated willingness, and two days later telephoned Jett, who told him that “he was with his people and that he could do a pound of cocaine that evening.” An appointment was arranged, again at the Springfield motel, and when Jett there produced bags containing a pound and four ounces of cocaine he was arrested. Again, Jacobs was not present. At the trial, although in the courtroom and available to both parties, she was not called.

Entrapment—Inducement by persuasion Jett took the stand. He testified that prior to meeting Jacobs he knew about narcotics, but had never dealt in them; that he made these sales to O’Brien simply on behalf of Jacobs, for a small payment, with her supplying the cocaine, and after her repeatedly begging him to do so for her because of an alleged disability from doing so herself. Citing Kadis v. United States, 1 Cir., 1967, 373 F.2d 370, Jett asserts that, he having introduced evidence of inducement, the burden of proving predisposition was on the government, and that it failed to meet its burden. Jett has, and could have, no criticism of the court’s extensive charge on predisposition; his claim is that the government’s evidence was insufficient to establish it.

This claim must fail for two reasons. In the first place, while it is true that we stated in Kadis that introduction of evidence of inducement placed the burden of showing defendant’s predisposition upon the government, such a burden of persuasion is a matter for the jury. We flagged the fact that this evidence might be disbelieved by citing McDonald v. United States, 1962, 114 U.S.App.D.C. 120, 312 F.2d 847, 849 (whether uncontroverted evidence introduced by defendant on issue upon which he has the burden must be believed depends upon its “weight and credibility.”) The general rule is that where the law attaches some inferential consequence to the introduction of evidence, this means credited evidence—if the jury disbelieves it, it becomes, in effect, no evidence. Thus where the law establishes a presumption in the absence of evidence and a party introduces evidence, it is proper to charge the jury that if it disbelieves the evidence it must adopt the presumption. Brown v. Henderson, 1934, 285 Mass. 192, 189 N.E. 41. So in Masciale v. United States, 1958, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859, where the defendant testified that he was induced by the informer, and the informer did not testify, the Court held that, even though defendant’s evidence on inducement was uncontradicted, the jury was entitled to disbelieve it and conclude he was not induced. Hence, even though the government there offered no evidence of predisposition prior to his contact with the informer, see United States v. Masciale, 2 Cir., 1956, 236 F.2d 601, the defendant was not entitled to a directed acquittal.

Whatever may be the circumstances under which a defendant’s uncontradicted evidence has to be believed, we need not here decide. In the present case defendant’s testimony was far from sufficient to be accepted as matter of law. Since the government’s evidence showed no inducement beyond a mere solicitation or opportunity, the government could have offered no evidence as to predisposition, and taken its chances that the jury would not accept defendant’s testimony. If the jury rejected that testimony the government would have no burden. In point of fact, we find substantial evidence warranting a finding of predisposition. Defendant, inter alia, could be seen as much too at ease when dealing with O’Brien, and too frequently willing, on his own testimony, to accept the informant’s alleged reasons, which we can only regard as increasingly implausible, for allegedly needing him as a facilitator for sales really by her.

Entrapment, etc.—Informant as supplier.

Defendant claims that he was entitled to an acquittal because Jacobs was the supplier of the cocaine. Again, however, all of the evidence supporting that claim came from him. There was, in addition, direct contradiction. O’Brien testified, ante, to statements by defendant of sources which, although not identified, clearly were not Jacobs. Furthermore, Jett’s testimony that Jacobs brought the cocaine to the Springfield motel on the occasion of the last— incompleted—one pound sale, was contradicted by evidence that government agents had maintained a surveillance, and that Jacobs could not have done this. We add that we regard it as inherently incredible that Jacobs, who concededly was not present at the sale, need have, or would, even if she had access to such a large amount, have trusted Jett with a pound and four ounces of cocaine, valued at $1000 an ounce, simply to set him up. There is no suggestion that the government connived, or even knew of any such alleged conduct on Jacobs’ part, let alone financed or supplied her.

On the record defendant contends that he was at least entitled to a charge that if the jury believed him that Jacobs supplied the cocaine (without any condition that they believed the government knew about it), it was either entrapment as matter of law, for which he cites United States v. Bueno, 5 Cir., 1971, 447 F.2d 903, or a sale by the government to itself, and so not within the act. We do not accept Bueno. So long as the jury found predisposition, it would not be intolerable entrapment for an informer to supply the drug unbeknownst to the government. See United States v. Russell, 1973, 411 U.S. 423, 435-436, 93 S.Ct. 1637, 36 L.Ed.2d 366.

Entrapment—Contingent fee

Defendant contends that he was entitled to an acquittal because the informant was paid on a contingent fee basis, citing Williamson v. United States, 5 Cir., 1962, 311 F.2d 441. The evidence does not support the claim. It is true, as must often be the case, that the informant was paid on the basis-of the value of her services. This is not an impermissible contingent fee within the meaning of Williamson. Heard v. United States, 5 Cir., 1969, 414 F.2d 884, 886; United States v. Crim, 4 Cir., 1965, 340 F.2d 989; See United States v. Durham, 5 Cir., 1969, 413 F.2d 1003, cert. denied, 396 U.S. 839, 90 S.Ct. 100, 24 L.Ed.2d 89.

The Indictment—Hearsay

Because of the unavailability of government agent O’Brien when the grand jury was convening, the United States Attorney had another agent read to the jury from O’Brien’s notes as a substitute for his direct testimony. The circumstances, and its consequent hearsay character, were fully explained to the grand jury. Nevertheless, defendant attacks the indictment. An indictment may be based upon hearsay, Costello v. United States, 1956, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397, and we find in the circumstances of this case no reason to make an exception. Defendant’s case of United States v. Estepa, 2 Cir., 1972, 471 F.2d 1132 is totally out of point. Every matter on which the court there relied was absent in the case at bar.

Without deciding whether we would agree with Estepa on its facts, we do agree that it is normally preferable for a grand jury to have something other than hearsay and that we would dislike seeing a practice of hearsay only. By so saying, however, we do not suggest that a defendant is entitled as of right to demand grand jury minutes to see if he can discover whether hearsay, or only hearsay, was used. As the Court only recently observed, “An indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence,” United States v. Calandra, 1974, 414 U.S. 338, at 345, 94 S.Ct. 613, at p. 618, 38 L.Ed.2d 561. We add that we regard with little enthusiasm those cases which suggest that a defendant’s now enlarged right of inspection places some kind of a burden on the government to present particular witnesses to the grand jury.

Defendant asserts that he should have been given the grand jury minutes as Jencks Act, 18 U.S.C. § 3500, material, alleging that the witness before the grand jury was merely a conduit for O’Brien’s testimony and that the witness’s testimony should be treated as O’Brien’s testimony. Defendant was given O’Brien’s actual notes. Beyond that there is no logic to this complaint. Defendant makes a number of other assertions, all of which we have reviewed, but none of which require discussion.

Affirmed.

      . Under what circumstances inducement by an informer does not bind the government is a question we do not reach. We assume it would here.

      . The charge which the court approved in Brown v. Henderson, at 194, 189 N.E. at 42, read as follows.
      “[I]f there is no evidence as to the due care in this case of Mr. Brown, then the presumption controls. When evidence is introduced then you are to consider the evidence. If you believe the evidence the presumption disappears; but just because somebody lias said something and you do not believe a word of that evidence the presumption would control.”

      . We cannot accept defendant’s case of United States v. Bueno, 5 Cir., 1971, 447 F.2d 903. We believe the court fell short in its analysis, and quite apparently was unaware of Masciale v. United States, ante.

      . In Rosenberg v. Baum, 10 Cir., 1946, 153 F.2d 10, at 13-14 the court said,
      “Where unimpeached witnesses testify distinctly and positively to a fact and are not contradicted, their testimony should under ordinary circumstances be credited and have the effect of overcoming presumptions. But that rule is subject to qualifications. There may be such inherent unreasonableness or improbability in the statements made by the witnesses as to deprive them of credit, however positively made. Though unimpeached, the witnesses may manifest such an interest in the question as to dilute their credibility. Their attitude may completely discredit the testimony. Physical facts may dispute it. And other circumstances may render it unworthy of belief. In such case the court or jury is not réquired blindly to adopt the testimony. Instead, the court or jury may in the exercise of sound judgment decline to give it decisive credence, though it is not contradicted by direct adverse testimony.”

        See, also, Andrew Jergens Co. v. Conner, 6 Cir., 1942, 125 F.2d 686, 689.


author: COLEMAN, Circuit Judge:

text:
    MOHASCO INDUSTRIES, INC., et al., Plaintiffs-Appellants, v. ACME FAST FREIGHT, INC., et al., Defendants-Appellees.
    No. 73-2383.
    United States Court of Appeals, Fifth Circuit.
    April 1, 1974.
    Richard W. Dortch, Jackson, Miss., Richard J. Hardy, Thomas A. Phemister, Washington, D. C., Michael P. Regan, Amsterdam, N. Y., for plaintiffs-appellants.
    Bryce Rea, Jr., Patrick McEligot, Washington, D. C., Junior O’Mara, Jackson, Miss., for all defendants-appellees except Acme Fast Freight.
    Samuel Weiner, New York City, for Acme Fast Freight, Inc.
    Before COLEMAN, CLARK and GEE, Circuit Judges.
   COLEMAN, Circuit Judge:

Plaintiffs-appellants, Mohasco Industries, Inc., and its subsidiaries, Chromcraft Corporation, Futorian Corporation, and Monarch Furniture Corporation, sued the defendants-appellees, motor freight carriers, for restitution of excess freight charges collected between January 16, 1968 and December 18, 1970. Upon motion, the complaint was dismissed for failure to state a claim upon which relief could be granted. We affirm.

The National Motor Freight Classification, of which the defendant motor carriers are members, published increased freight rates, effective January 1, 1968, for less-than-truekload shipments of many items of furniture. Protests were immediately registered by the furniture manufacturers, shippers, and dealers. Prior to the effective date, the Interstate Commerce Commission of its own initiative undertook an investigation of the reasonableness of the proposed new rates. The rates, however, were not suspended by the Commission pending the investigation, thus permitting them to take effect on January 16, 1968.

The Interstate Commerce Commission proceedings culminated in a finding by the hearing examiner that the increased rates had not been shown, to be just and reasonable. In an order issued January 13, 1969, the examiner directed cancellation within thirty days. This order was stayed pending review by a Commission Review Board. The Board sustained the hearing examiner and ordered the rates cancelled by June 13, 1969. Again, this order was stayed while the motor carriers petitioned for reconsideration. Finally, on November 2, 1970, the Commission en banc held that the proposed changes were not shown to be just and reasonable, Classification Ratings on Furniture, 1970, 337 ICC 709. The Commission then ordered the increased rates cancelled by December 18, 1970. In compliance with that order, the carriers reinstated the rates which had been in effect immediately prior to January 16, 1968.

On May 12, 1972, eighteen months after the old rates had been placed back in effect, plaintiffs-shippers filed suit in the District Court for the Southern District of Mississippi for restitution of the excess charges collected between January 16, 1968 and December 18, 1970. It was alleged that since the increased rates had not been shown to be just and reasonable, they were necessarily unjust and unreasonable from their inpeption, hence unlawful under the Interstate Commerce Act prohibiting unjust and unreasonable charges. It was further alleged that the carriers had an equitable obligation to refund the amounts collected in excess of the once existing and subsequently reinstated rates. This amounted to $172,258.94.

The defendants-motor carriers moved to dismiss, asserting that the complaint failed to state a claim upon which relief could be granted. Looking to United States v. Associated Transport, Inc., D. D.C., 1972, 347 F.Supp. 650, as authority for its decision, the District Court granted the motion. This appeal followed.

On August 9, 1935, Congress enacted Part II of the Interstate Commerce Act, 49 U.S.C., § 301 et seq., commonly referred to as the Motor Carriers Act of 1935. Prior to this enactment, there had grown up a considerable body of common law supporting a shipper’s right to restitution for unjust, unreasonable, and therefore excessive charges, Arizona Grocery Company v. Atchinson, T. & S. F. R. Company, 1931, 284 U.S. 370, 52 S.Ct. 183, 76 L.Ed. 348; Arkadelphia Milling Company v. St. Louis S. W. R. Company, 1919, 249 U.S. 134, 39 S.Ct. 237, 63 L.Ed. 517; Baltimore & O. R. v. United States, 1928, 279 U.S. 781, 49 S.Ct. 492, 73 L.Ed. 954; Atlantic Coastline R. R. Company v. Florida, 1935, 295 U.S. 301, 55 S.Ct. 713, 79 L.Ed. 1451.

Until 1959 many considered that this common law right of recovery had survived the enactment of Part II of the Interstate Commerce Act by reason of its “savings clause”, 49 U.S.C., § 316(j); Barrows Porcelain and Enamel Company v. Cushman Motor Delivery Company, 1939, 11 M.C.C. 365; Bell Potato Chip Company v. Aberdeen Truckline, 1944, 43 M.C.C. 337.

This view fell prey to a total reversal on May 18, 1959, when the Supreme Court decided T. I. M. E. Incorporated v. United States, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952. As stated by the Supreme Court, the question in T. I. M. E. was:

“Can a shipper of goods by a certificated motor carrier challenge in post-shipment litigation the reasonableness of the carrier’s charges which were made in accordance with the tariff governing the shipment?” [emphasis added.]

Although by a 5-4 vote of the Court, the answer was, “no”. The common law remedy of restitution had not survived the enactment of the Motor Carriers Act of 1935, 49 U.S.C., § 301 et seq.; the “savings clause”, Section 216(j) of the statute, 49 U.S.C., § 316(j), mandated no different result.

Hewitt-Robins, Incorporated v. Eastern Freight-Ways, Inc., 1962, 371 U.S. 84, 83 S.Ct. 157, 9 L.Ed.2d 142, was a case challenging a carrier’s misrouting practices, not the “reasonableness” of rates. The Court allowed an action to proceed for common law recovery of sums paid because of misrouting, but it went to great pains to assert and reassert that the decision in T. I. M. E. stood unaltered and unreversed.

From the foregoing we are convinced that from and after the decision in T. I. M. E., unless Congress by statute should direct to the contrary, the shipper had no remedy in the courts on common law principles by which he could sue, after the fact, for the restitution of charges collected by motor carriers on tariffs duly filed with and left in effect by the Interstate Commerce Commission.

It necessarily follows that should Congress act in the premises, its enactments would provide the sole and exclusive remedy for excessive charges.

In 1965, Congress did act. It enacted the following statute:

“§ 304a. Actions for recovery of charges; limitation of actions, definition ; effective date; action by or against United States
* * *- * « *
“(2) For recovery of reparations, action at law shall be begun against common carriers by motor vehicle subject to this chapter within two years from the time the cause of action accrues, and not after, and for recovery of overcharges, action at law shall be begun against common carriers by motor vehicle subject to this part within three years from the time the cause of action accrues, and not after, subject to paragraph (3) of this section, except that if claim for the overcharge has been presented in writing to the carrier within the three-year period of limitation said period shall be extended to include six months from the time notice in writing is given by the carrier to the claimant of disallowance of the claim, or any part or parts thereof, specified in the notice.
-X- -X- * * * *
“(5) The term ‘reparations’ as used in this section means damages resulting from charges for transportation services to the extent that the Commission, upon complaint-made as provided in section 316(e) of this title, finds them to have been unjust and unreasonable, or unjustly discriminatory or unduly preferential or unduly prejudicial.
“(6) The term ‘overcharges’ as used in this section shall be deemed to mean charges for transportation services in excess of those applicable thereto under the tariffs lawfully on file with the Commission.
“(7) The provisions of this section shall apply only to cases in which the cause of action may accure after June 29, 1949.”
P.L. 89-170, 79 Stat. 651, 49 U.S.C., § 304a.

It is at once apparent that Congress did not alter or expand the “savings clause”, 49 U.S.C., § 316(j).

Thus, the shippers in the instant case had available no relief other than that afforded by the 1965 enactment.

The instant appeal, however, is not concerned with “reparations” under the Act of 1965.

“Plaintiffs chose to pursue restitution, rather than following the then still-available course of an action at law for ‘reparations’ under Section 204a which offered the possibility of partial recovery for shipments delivered within two years prior to filing such an action.”

Appellant’s original brief, page 6.

It is strongly urged that T. I. M. E. has been “greatly eroded” by the impact of subsequent court decisions. The trouble with this argument is that none of these were decisions of the Supreme Court of the United States. These cases, and others pending which have been brought to the attention of the Court, indicate the existence of an organized move to have T. I. M. E. reversed. If that is to happen, it will have to be done by the Supreme Court, not by any of the inferior courts.

Moreover, we consider such cases as Middlewest Motor Freight Bureau v. United States, 8 Cir., 1970, 433 F.2d 212, to be inapposite.

In Middlewest the shippers sought recovery only for the period when a temporary restraining order was in effect, subsequent to an order of the Interstate Commerce Commission. Here, plaintiffs specifically seek recovery of excess payments from the very time the objectionable rates were first initiated.

The judgment of the District Court is Affirmed.

      . Acme Fast Freight, Inc., Arkansas Best Freight System, Inc., Beard Truck Line, Clark Truck Line, Crouch Brothers, Inc., East Express, Inc., Hennis Freight Lines, Inc., McLean Trucking, Merchants Truck Line, Pacific Intermountain Express, Pic-Walsh Freight Company, Robinson Truck Line, Shumpert Truck Line, Spector Freight System, Inc., Springmeier Shipping Company, Universal Carloading and Distributing Company.

      . Section 216(a) of the Act, 49 U.S.C. § 316 (a), imposes upon motor carriers a duty to establish just and reasonable rates; Section 216(d), 49 U.S.C. § 316(d), prohibits any unjust and unreasonable charge and declares such charges to be unlawful.

      . 49 U.S.C. § 316 (j) :
      “Nothing in this section shall be held to extinguish any remedy or right of action not inconsistent herewith.”


author: JOHN W. PECK, Circuit Judge.

text:
    Mae Eleanor SWEENEY, Administratrix of the Estate of Lawrence Robert Sweeney, Deceased, Plaintiff-Appellee, v. AMERICAN STEAMSHIP COMPANY, Defendant-Appellant.
    No. 73-1236.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 10, 1973.
    Decided Feb. 5, 1974.

      William S. Busch, New York City, for defendant-appellant; Cadwalader, Wickersham & Taft, New York City, Marshall, Melhorn, Bloch & Belt, Toledo, Ohio, on brief; (John A. Sullivan, New York City, Arnold F. Bunge, Jr., Toledo, Ohio, of counsel).
    Merritt W. Green, II, Green & Lackey, Toledo, Ohio, for plaintiff-appellee.
    Before EDWARDS and PECK, Circuit Judges, and CECIL, Senior Circuit Judge.
   JOHN W. PECK, Circuit Judge.

The American Steamship Company, defendant-appellant, perfected an appeal in this admiralty case from a judgment entered against it in the amount of $83,-209.22 for the death of an employee seaman. The basic facts are not in dispute.

Appellant owns and operates the U.S. Gypsum, a Great Lakes steamer, which in 1970 operated out of the Port of Toledo, Ohio. Lawrence R. Sweeney, plaintiff-appellee’s decedent, an experienced seaman and licensed engineer, was employed as Third Assistant Engineer on the Gypsum during the 1970 season. When the Gypsum returned to Toledo for the customary winter lay-up, decedent stayed aboard as part of the “after-end” crew which performed the bulk of the lay-up work. In order to lay-up the Gypsum, she was moored alongside the steamer Peter Reiss, which in turn was moored to a dock in the Toledo Harbor.

The lay-up process for Great Lakes vessels is nearly always the same. The work is done by members of the ship’s regular crew who, if they have worked an entire season, receive a substantial bonus for this duty. The purpose of the lay-up is to prepare the ship for the severe winter experienced on the lakes, where the presence of ice prevents year-round operations. The process takes from four to six weeks to complete.

The “forward-end” or deck crew secures the forward end of the vessel and provides a means of access from ship to shore. In this case, since the Gypsum was tied side by side another vessel, the deck crew had to construct a gangway to bridge the gap between the two vessels. In order to do this it was necessary to lower a section of the Gypsum’s steel cable railing. Several stanchions were removed to slack the steel cables, the gangway was placed in the space, and a single length of hemp rope was strung loosely from the nearest standing stanchion to the wooden railings on the gangway to replace the three separate steel cables that made up the normal railing. This task completed, the deck crew departed for the season and the after-end crew continued working on the Gypsum’s machinery.

On December 26, 1970, decedent was scheduled to report for work at 8:00 o’clock a. m. At 9:00 a. m. he appeared in the engine room but was unsteady on his feet and uncoordinated in his movements. The Chief Engineer did not think decedent was able to work and suggested a coffee break. At about 10:00 a. m. the Chief went to decedent’s room and found him asleep in his bunk. Between 1:00 and 1:30 p. m. the Chief again went to the decedent’s room and this time found him sitting at his desk with his head on his arms. He warned him to shape up or go see a doctor. Although the Chief thought decedent was drunk, he detected no odor of alcohol about his person at any time that day, and no liquor bottles were seen.

At approximately 2:00 p. m. the Second Engineer passed decedent’s room and decedent called him in. He was still seated at his desk with his head on his arms. A bottle of medicine was on the desk, but there was no sign of alcoholic beverages in the room. During a short conversation which followed, decedent indicated to the Second Engineer that he was going to see a doctor because he felt ill. The Second Engineer was the last person to see decedent alive.

There was evidence that decedent had been feeling ill for some time prior to the lay-up period, and that he had visited the emergency room of a local hospital complaining of upper abdominal distress as recently as December 20th. At that time his problem had been diagnosed as a stomach disorder and medicine containing atrophine and barbiturates had been prescribed.

Decedent had arranged to meet his wife at a local restaurant at 4:30 p. m. on the afternoon of December 26th. He did not appear at the appointed time, and his wife became somewhat concerned since he rarely was late. After waiting at the rendezvous for some time she left and went to the Gypsum to find him. Nobody aboard the ship knew of his whereabouts. Failing in her efforts to locate decedent, she notified the police that he was missing and returned to her home. The next morning, December 27, 1970, the First Engineer discovered decedent’s body wedged between the sides of the Gypsum and the Peter Reiss in a slightly head downward position near the point where the gangway connected the two ships.

An autopsy revealed that the cause of death was congestive heart failure brought on by prolonged suspension in an inverted position. Time of death was fixed at 6:00 p. m. on the 26th of December, and both the Deputy Coroner and the pathologist agreed that it took approximately two hours for death to ensue after decedent became wedged. There was no doubt that the heart failure was precipitated by the pendant position and not vice-versa.

In the' late afternoon on December 26th the weather in Toledo was cold and snowy. Evidence from various sources indicated that the deck plates of the Gypsum near the gangway, which slanted slightly toward the side of the ship, were covered with snow and ice, and were slippery.

The post mortem included a blood alcohol test. The test, conducted by the Toledo Police Department Crime Laboratory showed a blood alcohol level of .28%. In this regard, the Deputy Coroner testified that a reading of .32% is invariably fatal, and that when the level reaches .26% ordinary people become unconscious. Other experts disputed these conclusions. Evidence also established that alcohol metabolizes at the rate of .01% per hour in the human body, so that decedent’s blood alcohol level at the time he first became wedged must have been .29% or higher. Further, there was expert testimony that it is possible for alcohol in the stomach to diffuse into the blood after .death and cause a higher and deceptive test reading.

The District Judge, sitting as trier of fact, found that in the late afternoon of December 26, 1970, “decedent left his cabin with the intention of meeting his wife; that at the time the deck of the Gypsum was slippery, covered with fresh snow, and the visibility was very poor; that shortly before he reached the gangway, decedent slipped, and in the absence of any useful railing on the edge of the ship at that point, was unable to save himself and plunged head first down between the two vessels; that he was rendered unconscious by the impact with the ship’s hull at the end of his fall, and remained there, with his head downward, until death ensued, about two hours later.”

The Trial Court first decided that the decedent was entitled to proceed under the Jones Act. It then concluded that appellant had violated a Coast Guard Regulation relating to the maintenance of railings and held appellant liable for decedent’s death.

Appellant’s main assignment of error relates to the District Court’s decision concerning the applicability of the Jones Act. Appellant maintains that at the time of decedent’s fall the Gypsum was “out of navigation,” laid up for the winter, was a “dead ship,” and that as a matter of law the Jones Act was inapplicable. It cites Antus v. Interocean S.S. Co., 108 F.2d 185 (6th Cir. 1939); Nelson v. Greene Line Steamers, Inc., 255 F.2d 31 (6th Cir.), cert. denied, 358 U.S. 867, 79 S.Ct. 100, 3 L.Ed.2d 100 (1958), and a number of other cases to support the proposition that a Great Lakes steamer in the proeess of being “laid-up” for the winter is not “in navigation” and the men aboard are not entitled to Jones Act rights. However, as this Court recently reaffirmed in Noack v. American S.S. Co., 491 F.2d 937 (6th Cir., filed February 1, 1974), the question of whether a vessel is “in navigation” is a question of fact properly left to the trier of fact. Absent a finding that the determination made was clearly erroneous, it must be upheld on appeal. Applying the criteria detailed in Noack, we conclude that the District Court’s determination that the Gypsum was “in navigation” was not clearly erroneous.

Appellant asserts that the Trial Court erred because it engaged in surmise, speculation, and conjecture to fix liability for this unwitnessed and unexplained accident. The Supreme Court has stated that the test to be applied in determining the permissible inferences from unexplained events in cases arising under the Jones Act is to be the same as that applied in F.E.L.A. cases. Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 77 S.Ct. 457, 1 L.Ed.2d 511 (1956). That test is “whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1956). The rule was recently reaffirmed in this Circuit. Rodriguez v. Delray Connecting R.R., 473 F.2d 819 (6th Cir. 1973). The trier of fact is thus allowed “a measure of speculation and conjecture . . . to settle the dispute by choosing . the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear.” Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1945). Under these tests, the conclusions reached by the trial court were premised upon permissible inferences.

The trial court found appellant liable because it violated Coast Guard Regulation 92.25-5 (a) which states that “All vessels shall have sufficient guard rails . . . . ” C.F.R. 92.25-5(a). Appellant contends that the above regulation does not apply to “Any vessel while laid up and dismantled and out of commission,” C.F.R. 90.05(a) (3), and even if this exception is inapplicable the hemp rope was an efficient guard. With respect to the first contention, the District Court held that at the time of decedent’s death the Gypsum was not “laid up and dismantled and out of commission,” but rather was in the process of being laid up, dismantled and decommissioned by a crew of which decedent was a member. In addition, we note that during the lay-up process a large crew is aboard, but when the process is completed, only a single watchman remains aboard and he performs only guard duties. We conclude that the District Court correctly determined that the exception had no application in this case.

As to the claim that the hemp rope was an “efficient guard rail,” we hold that its efficiency was a question of fact. There was probative evidence of its inefficiency, and the finding that it was inefficient was warranted under the evidence. And, while it is true that the regulation regarding guard rails can be waived by the Coast Guard after inspection, this does not change the mandatory nature of its command. There was no waiver in this case, but there was a clear violation.

The Trial Judge found that at the time of his fall decedent was sober but weak and ill, a finding directly in conflict with evidence offered by appellant concerning the blood alcohol test. Appellant asserts that the rejection of competent scientific evidence constituted error. There was, however, contradictory evidence relative to decedent’s condition the day of the accident and to his drinking habits in general. Further, some doubt was cast upon the “scientific” evidence by the testimony that at the alcohol level allegedly present in decedent’s blood at the time of his fall an ordinary man would be unconscious. Also, there was evidence indicating that decedent was taking drugs for his stomach disorder. The question thus presented pertains to the weight assigned by the trier of fact to the blood alcohol test. The weighing of evidence is a function of the Trial Judge in a court tried case and his decision cannot be set aside unless clearly erroneous. Rule 52(a), Fed.R.Civ.P. In light of the contradictory evidence noted heretofore, we conclude that the rejection of the test evidence was within thé sound discretion of the Trial Judge.

Appellant raises a number of contentions relating to the computation of damages. We have reviewed these contentions in light of this Court’s holdings in the so-called “Cedarville” cases, United States Steel Corp. v. Lamp, 436 F.2d 1256 (6th Cir.), cert. denied, 402 U.S. 987, 91 S.Ct. 1649, 29 L.Ed.2d 153 (1971); and United States Steel Corp. v. Fuhrman, 479 F.2d 489 (6th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 71, 38 L.Ed.2d 110 (1973), and found them, with one exception, meritless. The exception involves the District Court’s inclusion of “sums payable by the defendant for fringe benefits” in the computation of decedent’s future earnings. The District Court included an amount equal to the sums that appellant would have paid into decedent’s pension fund and other fringe benefit plans over the remainder of his work-life expectancy. Appellant urges, and we agree, that this was clearly erroneous.

As we stated in “Cedarville,” 436 F.2d at 1272, “The primary element of pecuniary loss to the families of the deceased seamen is, of course, the loss of the decedent’s earning capacity . . . for the remainder of the decedent’s work-life expectancy. The basic factor of the lost earning capacity is the monetary wage which the decedent would have earned had he lived, but may also include the value of those fringe benefits which would inure to the benefit of decedent’s family had he lived.” In the ease before us, decedent’s wife is entitled to claim that percentage of his pension and other benefits that she would have received had he lived to his full work-life expectancy, not what his employer would have paid into the plans. The award must be recomputed in accord with the foregoing principles.

The judgment of the District Court is affirmed except insofar as it relates to the computation of damages, and the cause is remanded for further proceedings consistent with this opinion.


author: PER CURIAM.

text:
    David W. GLASSPOOLE, Appellant, v. Howard R. ALBERTSON et al., Appellees.
    No. 73-1881.
    United States Court of Appeals, Eighth Circuit.
    Jan. 18, 1974.

      David W. Glasspoole, filed brief pro se.
    No brief was filed by counsel for appellees.
    Before GIBSON, LAY and STEPHENSON, Circuit Judges.
   PER CURIAM.

Defendant-appellee Judge Howard R. Albertson moves to summarily affirm and to dismiss this appeal under Rules 8 and 9 of this Court. That motion is granted, and the Court on its own motion pursuant to its Rule 9(a) dismisses this civil rights action as to each defendant.

On February 8, 1973, Anne Glasspoole, a defendant in this suit, instituted a divorce action against David Glasspoole, plaintiff herein. The Honorable Howard R. Albertson, County Court Judge of the State of Minnesota, issued a temporary order on February 15, 1973, governing child custody and visitation, disposition of property, child support, aind payment of outstanding bills. The parties were unable to agree on a final stipulation, and no divorce has yet been granted.

On August 23, 1973, the plaintiff herein appeared before Judge Albertson to show cause why he should not be held in contempt for failing to fulfill the requirements of the temporary order of February 15, 1973. On August 28, Judge Albertson ordered the plaintiff to repay $400 monthly to the Washington County Welfare Department, which had been granting payments to Mrs. Glasspoole for aid to dependent children.

Plaintiff brought this civil rights action, pro se, under 42 U.S.C. §§ 1981-1986 and 1994, requesting injunctive and monetary relief in regards to Judge Albertson’s order of August 28th. Plaintiff did not appeal to Minnesota courts from Judge Albertson’s order. Defendants are Judge Albertson; James Lammerts, Mrs. Glasspoole’s attorney in the divorce action; and Anne Glasspoole. The District Court dismissed the action for failure to state a claim upon /which relief may be granted and lack of subject matter jurisdiction. We affirm the dismissal of the action.

In regards to Judge Albertson, dismissal of the suit was correct, since the doctrine of judicial immunity protects a judge from a civil suit for acts performed in the course of his official duties. Staudacher v. Kempe, No. 73-1694 (8th Cir., filed Oct. 25, 1973); Barnes v. Dorsey, 480 F.2d 1057, 1060 (8th Cir. 1973); Milliman v. Friedrich, No. 73-1114 (8th Cir., filed April 17, 1973), cert. denied, 414 U.S. 1066, 94 S.Ct. 574, 38 L.Ed.2d 471 (1973). Dismissal as to Mrs. Glasspoole’s attorney was also correct since he was not acting under color of state law. Staudacher v. Kempe, supra; Barnes v. Dorsey, supra at 1060-1061. Clearly, Mrs. Glasspoole was not acting under color of state law and dismissal as to her was also correct. In addition, although plaintiff need not allege or prove that Mrs. Glasspoofe or her attorney was acting under color of state law to maintain an action under 42 U.S.C. § 1985, plaintiff has not alleged facts showing these defendants conspired with the intended purpose of depriving plaintiff of the equal protection of the law. Barnes v. Dorsey, supra, at 1061.

Plaintiff, therefore, has alleged no sufficient grounds upon which relief can be granted, and this Court on its own motion pursuant to Rule 9(a) affirms the District Court’s dismissal with prejudice as to each defendant and assesses costs against appellant.

Appeal dismissed with costs assessed against the appellant.


text:
    FAIRWAY CENTER CORPORATION, Appellant, v. U. I. P. CORPORATION, Appellee.
    No. 73-1773.
    United States Court of Appeals, Eighth Circuit.
    Feb. 7, 1974.
    Edward W. Dailey and William R. Ruther, Burlington, Iowa, for appellant.
    J. C. Riley, H. C. Walsh and Elmer M. Jones, Burlington, Iowa, for appellee.
    Before GIBSON, LAY and STEPHENSON, Circuit Judges.
   PER CURIAM.

This case comes before us pursuant to appellee’s motion for summary dismissal of appellant’s appeal. See Rule 9(b) of this court. The motion is denied.

Appellee’s only substantial argument is that appellant has not perfected his appeal within the 30 day time requirement of Fed.R.App.P. 4(a). The District Court entered judgment in this case on August 21, 1973. Sometime before August 31, the appellant telephoned the district judge and requested an extension of time to file post trial motions. The District Court granted an extension to September 21, 1973. On September 17, 1973, the parties stipulated that appellant be given additional time, and on September 21, 1973, an order was filed granting appellant until October 15, 1973, to file any post trial motions. On October 15, 1973, appellant filed a motion for a new trial, a motion to extend the time for appeal to this .court, and a notice of appeal. On October 17, 1973, the District Court denied appellant’s motion for a new trial, granted his motion to extend the time for appeal, and ignored the October 15th notice of appeal as being premature. The District Court reasoned that appellant’s failure to timely perfect his appeal was excusable neglect, since the District Court had improperly granted him extensions of time to file post trial motions. The District Court granted appellant 60 days from the filing of the judgment to file his notice of appeal. Appellant filed his notice of appeal on October 19, 1973, which was timely under the absolute 60 day limitation. See, Winchell v. Lortscher, 377 F.2d 247, 251 (8th Cir. 1967).

While we reaffirm the holding of Winchell, we think the facts here constitute a narrow exception predicated on Fed.R.App.P. 4(a) and agree with the District Court that appellant should be allowed to appeal due to excusable neglect. Fed.R.App.P. 4(a); Wolfsohn v. Hankin, 376 U.S. 203, 84 S.Ct. 699, 11 L.Ed.2d 636 (1964); 9 Moore’s Federal Practice § 204.12 [2] at 954-58. Appellee in part argues that Winchell should be applied to the facts of this case and that an evidentiary hearing should have been conducted by the District Court to determine if there was excusable neglect before allowing the application of the extension of time pursuant to Fed.R.App.P. 4(a).

Winchell required an adversary hearing in order to offer the appellant an opportunity to show that his failure to timely appeal was based upon his failure to learn of an entry of judgment. Winchell v. Lortscher, supra at 252, 255. Winchell, however, was not concerned with the special type of excusable neglect recognized by Wolfsohn v. Hankin, supra. Wolfsohn carves out a special category of excusable neglect that allows an appellant to file an otherwise untimely appeal when the District Court has erred in granting an extension of time for a motion for a new trial. Under the Wolfsohn rationale, the appellant’s excusable neglect is due to the error of the District Court in granting an extension of time for a motion for a new trial and thereby misleading appellant as to the proper time in which to appeal. The situation here does not require an adversary hearing to determine excusable neglect, because the important fact to be considered is any error by the District Court in granting extensions of time. Of course, the District Court has this knowledge, since it involves its actions. An adversary hearing, therefore, would not be illuminating and would only serve as a waste of judicial and legal energies. We conclude that the granting of the appellant’s extension of time to appeal due to excusable neglect without affording appellee notice and opportunity to be heard should not preclude appellant from arguing this appeal.

We have examined appellee’s other arguments and find them without merit. However, the following clarifications are necessary. On December 27, 1973, appellant designated parts of the record to be included in the appendix and issues to be argued on appeal. Appellee now has ten days from the filing of this opinion in which to notify the appellant of any other parts of the record to be included in the appendix. Appellant must file and serve his brief and appendix 30 days after the receipt from defendant of any designated parts of the record to be included in the appendix. If appellant receives no designated parts of record from defendant, appellant has 40 days from the filing of this opinion to serve and file his brief. Appellee then shall serve and file his brief within 30 days after service of appellant’s brief. Appellant’s reply brief, if desired, must be filed within 14 days after service of appellee’s brief.

Appellee’s motion to dismiss is denied.

      . Under Fed.R.Civ.P. 59(b), a motion for a new trial must be served not later than 10 days after the entry of judgment. The District Court cannot enlarge this time pursuant to Fed.R.Civ.P. 6(b) for filing of a motion for a new trial under Rule 59(b) or for filing such a motion due to excusable neglect under Rule 60(b). However, Fed.R.App.P. 4(a), cited in the text, does allow an extension of time for filing a notice of appeal due to excusable neglect.

      . In a five to four decision in Wolfsohn, the majority merely reversed the dismissal of the appeal on the authority of Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962) and Thompson v. Immigration and Naturalization Service, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964). Professor Moore explains Thompson and Wolfsohn:

      But it must be stressed that Thompson and Wolfsohn hold only that if, at a time when he may appeal, a party is misled by the words or conduct of the district court into believing that he need not then appeal, he ought not lose his right to appeal by reason of the mistake of the district court. Those decisions do not gainsay the general proposition that an untimely motion has no effect upon the running of the time for appeal.
      Moore’s Federal Practice, supra at 958 (footnotes omitted).

      . Here, the excusable neglect was the inadvertent error by the District Court in granting an extension of time for a motion for a new trial.


author: PER CURIAM:

text:
    John HASSENFLU and James Howell, Plaintiffs-Appellants, v. William A. PYKE et al., Defendants-Appellees.
    No. 73-2388.
    United States Court of Appeals, Fifth Circuit.
    April 1, 1974.
    James G. Clement, Irving, Tex., for plaintiffs-appellants.
    Emory L. White, Jr., Dallas, Tex., for Pyke, and others.
    Bert Bader, Dallas, Tex., for Yarborough and Stephens.
    Robert N. Corey, pro se.
    James S. Robertson, Jr., Dallas, Tex., for Brown, Allen & Co.
    Anthony Atwell, Dallas, Tex., for Hardin.
    Before RIVES, GEWIN and MORGAN, Circuit Judges.
   PER CURIAM:

John Hassenflu and James Howell, the appellants, alleging a securities fraud brought suit against nine defendants. The nine defendants included eight directors and officers of the World Computer Corporation of Dallas, Texas and a brokerage firm. Summary judgment was granted in favor of five of the nine defendants, and the propriety of that order is not contested. Additionally, the cause of action was dismissed with prejudice against the remaining four defendants because of the conduct by the appellants’ counsel.

The only facts of record are those stated in the trial court’s order. At oral argument counsel for all parties recognized the sparsity of the record, and they were fully cooperative in giving their version of the events that transpired. It is inappropriate, however, to base an appellate opinion on assertions dehors the record. Therefore, we do not pass judgment upon the conduct of the appellants’ attorney. Nor shall we-express an opinion as to what disciplinary action may be proper. These are matters to be considered by the district court after a hearing.

We do conclude that dismissal of the complaint with prejudice is essentially punishing the appellants. Dismissal effectively denies them an opportunity to maintain their action. There is no indication that the appellants had any knowledge of or participation in the alleged derelictions of counsel. While we recognize a district court’s authority to supervise and control its docket, parties should not be punished for their counsel’s neglect except in extreme and unusual circumstances. Dismissal of a complaint with prejudice is a drastic remedy.

The order of dismissal is accordingly vacated and the case is remanded to the district court with directions to restore the case to the court’s trial docket. The district court, in its sound discretion, may impose such reasonable sanctions upon counsel for appellants as are appropriate after a proper hearing.

The cost of this appeal will be taxed one-half to appellants and one-half to appellees.

Vacated and remanded with directions.

      . The trial court’s order provides:
      As to Defendants Pyke, Corey, Yarborough and Stephens the court is of the opinion that these Defendants should be dismissed for the following reasons:
      A hearing on the Motions for Summary Judgment was set for April 6, 1973 at 9:00 A.M. by an Order of this court. The case was set for trial on April 23, 1973. On the afternoon of April 5, 1973, this court was notified by Plaintiffs’ [Appellants’] counsel that an agreement had been reached on all the Motions for Summary Judgment. Plaintiffs’ counsel further informed the court that because of this accord, the set hearing was not unnecessary, [sic] The court assented to this request and suggested the Plaintiffs’ counsel notify all other counsel in this case that the hearing on the Motions for Summary Judgment .would be cancelled because of this accord. Plaintiffs’ counsel replied that all other counsel had already been notified that the hearing was cancelled. On April 6, 1973 at 9:00 A.M., all counsel, except Plaintiffs’ counsel, appeared in the court’s chambers apparently ready to argue the Motions for Summary Judgment. None of them were notified that the hearing had been can-celled, nor that an accord had been reached on all the Motions for Summary Judgment. This fact was substantiated by letter to this court dated April 6, 1973. from Plaintiffs’ counsel. As a result of the foregoing, the disposition of this case has been delayed at the expense and time of the Defendants [Appellees].

      . See Flaksa v. Little River Marine Construction Co., 389 F.2d 885, 887 (5th Cir. 1968).

      . See Canada v. Mathews, 449 F.2d 253, 255 (5th Cir. 1971). The court stated, “[Dismissal with prejudice is warranted only in extreme circumstances and only after the Trial Court, in the exercise of its unquestionable authority to control its own docket, has resorted to ‘the wide range of lesser sanctions which it may impose upon the litigant or the derelict attorney, or both.’ ” (footnotes omitted). Also see Durham v. Florida East Coast Ry. Co., 385 F.2d 366 (5th Cir. 1967); Pond v. Braniff Airways, Inc., 453 F.2d 347 (5th Cir. 1972).


text:
    Otis MINAFEE, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 73-3391
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 29, 1974.
    E. Eldridge Goins, Jr., Dallas, Tex. (Court-appointed), for petitioner-appellant.
    Robert C. Flowers, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before GEWIN, GODBOLD 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.

   PER CURIAM:

The district court dismissed the habeas petition of Otis Minafee on the merits of all but one of the contentions raised. Finding that contention had not been exhausted in the state forum, it was dismissed without prejudice.

Although it recognized that the specific constitutional arguments in Minafee’s petition had not been presented to the Texas courts, the district court found that the alleged errors asserted on Minafee’s direct appeal in Texas had been predicated upon the same factual bases as his federal habeas contentions. This factual sameness will not support a holding that such constitutional assertions have been exhausted. See Picard v. Connor, 404 U.S. 270, 277, 92 S.Ct. 509, 513, 30 L.Ed.2d 438, 444 (1971).

The cause is vacated and remanded with instructions to the district court to dismiss without prejudice as to all issues.

Vacated and remanded.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Eugene VAUGHAN, Jr., Defendant-Appellant.
    No. 73-3801
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 1, 1974.

      Donald E. Brutkiewicz, Mobile, Ala. (court-appointed), for defendant-appellant.
    Charles E. White-Spunner, U. S. Atty., Irwin W. Coleman, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, 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:

Vaughan was found guilty of violating 18 U.S.C.App. § 1202(a), possessing a firearm after having been convicted of a felony. He stipulated to facts which would support a conviction, but entered a plea of double jeopardy, having previously been convicted in Municipal Court of assault with a pistol, in violation of Alabama state law, a transaction with the very same pistol involved in the present federal prosecution. The sole issue on appeal is whether Vaughan’s conviction in federal district court was barred by the constitutional prohibition against double jeopardy.

We said in Harlow v. United States, 5 Cir., 1962, 301 F.2d 361, 373-374, cert. denied, 371 U.S. 814, 83 S.Ct. 25, 9 L.Ed.2d 56:

There are always two questions which must be resolved when a defendant in a criminal case interposes a plea of former jeopardy. The first is whether both tribunals before which the defendant was tried derived their authority and jurisdiction from the same sovereign; the second is whether both prosecutions were for the same “offense.” [Footnote omitted.]

Waller v. Florida, 397 U.S. 387, 391-396, 90 S.Ct. 1184, 1187-1188, 25 L.Ed.2d 435 (1970), held that a conviction in municipal court barred a subsequent trial for the same offense in state court because the municipality and the state were not separate sovereign entities. Vaughan’s reliance on Waller is misplaced, for a municipality and the federal government represent two distinct sovereigns. See Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), and Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). This Court has recognized the validity of subsequent prosecutions by different sovereigns since the Waller decision. United States v. Jackson, 5 Cir., 1972, 470 F.2d 684, 689, cert. denied, 412 U.S. 951, 93 S.Ct. 3019, 37 L.Ed.2d 1004 (“An act -denounced as a crime by both federal and state sovereignties is an offense against the peace and dignity of both, and may be punished by each.”); Hill v. United States, 5 Cir., 1971, 452 F.2d 664, 665. There was no bar to Vaughan’s prosecution in federal court.

Additionally, we question, without deciding, whether the municipal and federal prosecutions were for the same offense. As stated in Harlow v. United States, supra, 301 F.2d at 375:

“[T]he test of identity of offenses is whether the same evidence is required to sustain them.” Morgan v. Devine, 237 U.S. 632, 641, 35 S.Ct. 712, 59 L.Ed. 1153.

To sustain a conviction on the federal charge, the Government had to prove that Vaughan possessed a firearm which had traveled in interstate commerce and that the defendant was a convicted felon. This proof would not be required to sustain a conviction of assault with a pistol.

Affirmed.


text:
    Harold DAMES, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellee.
    No. 73-1093.
    United States Court of Appeals, Fifth Circuit.
    April 1, 1974.
    Samuel S. Forman, Miami, Fla., (Court-appointed), for petitioner-appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Arnold R. Ginsberg, Linda C. Hertz, Asst. Atty. Gen., Miami, Fla., for respondent-appellee.
    Before RIVES, GEWIN and RONEY, Circuit Judges.
   PER CURIAM:

Harold Dames appeals from the district court’s judgment denying his application for a writ of habeas corpus. He was convicted on November 19, 1969 of robbery and sentenced to fifteen years’ imprisonment. His conviction was subsequently affirmed. Dames v. State, 235 So.2d 556 (Fla.App.Ct.1970). Thereafter at his behest, his conviction was set aside for grounds not clearly re.vealed by the record before us and he was granted a new trial.

Dames and his court-appointed counsel then entered into a negotiated plea whereby as a result of his plea of guilty to the robbery charge, he would be given a seven-year sentence with credit on the sentence for a six-month period of time out of the two years he had previously served on the vacated conviction. Accordingly, on August 5, 1971, the state trial court accepted Dames’ tendered guilty plea. At that time the following colloquy ensued:

Mr. Taffner [Dames’ court-appointed counsel]: May it please the Court, ., the Defendant wishes to withdraw his plea of not guilty on the charge of robbery based upon the negotiations between counsel for the defendant and the counsel for the State Attorney’s Office, with the approval of the defendant. (Emphasis added) ******
The Court: What are the negotiations ?
Mr. Taffner: The negotiations are a seven-year sentence with credit from February 5, 1971.

After discussing the nature of the offense with Dames, the court directed these pertinent questions to him:

The Court: Have you discussed your plea of guilty with your attorney? The Defendant: Yes, sir.
The Court: Did you agree to plead guilty ?
The Defendant: On my own.
The Court: Did you understand your lawyer?
The Defendant: Yes, sir.
The Court: Are you satisfied with him?
The Defendant: Yes, sir.
The Court: By your plea of guilty, you admit to all the facts; do you know that?
The Defendant: Yes, sir.
The Court: With your plea of guilty, do you understand that you are going to receive seven years in the state penitentiary?
The Defendant: Yes, sir.
The Court: Do you understand me ?
The Defendant: Yes, sir.
The Court: Are you pleading guilty knowing that you will receive or will be sentenced to seven years at the state penitentiary ?
The Defendant: Yes, sir.
The Court: Accordingly, I adjudicate you guilty and sentence you to the state penitentiary for seven years and credit you for time served beginning February 5, 1971.
Did you get what you bargained for in this sentence ?
The Defendant: Yes, sir.

In his petition below and on this appeal Dames has contended that he is entitled to receive credit for the total two years of incarceration that followed his original conviction for robbery in 1970. He asserts that the trial court’s failure to credit him with this period of time violates the prescriptions enunciated by the Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1972). We find this contention to be without merit and affirm.

The record demonstrates that Dames was aware that he would receive a seven-year sentence for his guilty plea and credit for six months previously served. As a result of Dames’ successful attempt to have his previous sentence of fifteen years vacated, he received a greatly reduced seven-year sentence. Moreover, even with this reduced sentence, the negotiated plea provided for six months credit, representing part of the time he had previously served under the vacated sentence.

We are at a loss to discern how the teachings of Pearce have been violated. Appellant has not been punished for exercising his appellate or post-conviction rights which culminated in the state court vacating his original conviction. Indeed, the present record aptly demonstrates that his endeavors were rewarded with a much shorter sentence. The sentencing court surely considered appellant’s previous fifteen-year sentence and the time appellant had previously served. The six-month credit provision is an explicit recognition by all concerned of thé time served on the vacated sentence. See Adams v. Wainwright, 453 F.2d 416 (5th Cir. 1972).

Appellant has received what he intelligently and voluntarily bargained for with the aid of his counsel. At the time of his guilty plea, appellant informed the court that the sentence imposed together with the six-month credit time were the fruits of his negotiated bargain with the state prosecutor. We refuse to undo by post-conviction relief an explicit understanding made at the sentencing stage based on belated and self-serving contentions. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

The judgment of the district court is affirmed.


text:
    Virgil G. LAWSON, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 73-3548.
    United States Court of Appeals, Fifth Circuit.
    March 29, 1974.
    Virgil G. Lawson, pro se.
    Robert C. Flowers, Gilbert J. Pena. Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.
   PER CURIAM:

Lawson, a prisoner of the State of Texas, appeals the district court’s denial of his petition for federal habeas corpus. Because the record before this Court shows that the courts of Texas have never adjudicated the merits of the appellant’s habeas grounds, we believe that the court below should have pretermitted decision until state remedies were exhausted. We therefore vacate the judgment appealed from and remand this cause to the district court with directions to dismiss the appellant’s habeas petition without prejudice to his right to reapply after pursuing his remedies under Art. 11.07, Vernon’s Ann. Texas Code of Criminal Procedure. 28 U.S.C. § 2254(b); Redd v. Louisiana, 5th Cir. 1973, 489 F.2d 766; Kirby v. Beto, 5th Cir. 1973, 472 F.2d 167.

Vacated and remanded.

      . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s Local Rule 9 (c) (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981.