author: BIGGS, Senior Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Bernard JERRY, Appellant, and Edgar Saunders.
    No. 72-1528.
    United States Court of Appeals, Third Circuit.
    Submitted under Third Circuit Rule 12(6) Nov. 30, 1972.
    Final Briefing Sept. 12, 1973.
    Decided Nov. 16, 1973.

      Before BIGGS, KALODNER and ADAMS, Circuit Judges.
    Francis P. Massco, Bowser & Massco, Pittsburgh, Pa., for appellant.
    Richard L. Thornburgh, U. S. Atty., Pittsburgh, Pa., Jay C. Waldman, Kathleen Kelly Curtin, Asst. U. S. Attys., Pittsburgh, Pa., for appellee.
    James A. Strazzella, Philadelphia, Pa., Curtis R. Reitz, Philadelphia, Pa., of counsel, amici curiae.
   OPINION OF THE COURT

BIGGS, Senior Circuit Judge.

This appeal is from a judgment of conviction, based on a plea of guilty. The appellant Jerry has raised questions concerning the propriety of the trial judge’s acceptance of his guilty plea and a subsequent refusal to allow the plea to be withdrawn. Because of peculiar procedural occurrences below, this court appointed Amicus Curiae to brief possible issues emanating therefrom.

On September 28, 1971, the Western Pennsylvania National Bank was robbed. Edgar Saunders was apprehended near the scene of the crime, and some of the stolen money and other evidence was recovered. Saunders pleaded guilty. Two days later, Jerry surrendered to the FBI and signed a statement admitting his role as driver of the getaway car for Saunders. Jerry was indicted on two counts charging him with offenses relating to bank robbery in violation of 18 U.S.C. § 2113(a) and (d), to which he entered a plea of not guilty. At a November 17, 1971 hearing, Jerry was permitted to change his plea to guilty on Count one, violation of Section 2113(a). Count two, violation of Section 2113(d), was dismissed. On January 6, 1972, Jerry was sentenced to a maximum term (20 years), and for a study pursuant to 18 U.S.C. § 4208(b) and (c).

After the three month commitment study, Jerry returned to court on April 6, 1972 for final sentencing, at which time he informed the court that he wished to withdraw his guilty plea. The district judge ascertained from Jerry the reasons for requesting withdrawal of the plea, and the Government requested an opportunity to examine Jerry’s allegations and suggested that he be examined under oath and that defense counsel be called as a witness. The court granted defense counsel’s motion to withdraw from the case and postponed further action on Jerry’s motion to withdraw the plea until a transcript of the entry of plea could be obtained and new defense counsel procured.

On April 27, 1972, the court entered a written order permitting Jerry to withdraw his plea of guilty. Francis P. Massco, Esq., was appointed to represent Jerry.

The next day, the Government filed motions for continuance'of the trial date and reconsideration of the order allowing withdrawal of the guilty plea. The motion for reconsideration, inter alia, alleged that “[t]here was no sworn testimony or competent evidence before the Court ... on the issue of whether defendant was entitled to withdraw his plea,” and that “the orderly administration of criminal justice would be severely prejudiced by defendant’s being permitted to withdraw his plea of guilty upon unsworn, undocumented self-serving allegations made without opportunity to the government to explore or rebut them. The government would be prejudiced in that it has lost one count of the indictment, and in that considerable time and effort would be required to attempt to relocate certain key witnesses and reprepare this case for trial.” Relief in the nature of a “superseding order denying defendant permission to withdraw his plea of guilty, at least pending hearing and argument on the matter”' was requested.

The record does not indicate service of the Government’s motion for reconsideration on counsel then representing Jerry, Mr. Massco. Rather, the certificate of service accompanying the motion indicates that the motion was served on Mr. Bowser, the attorney appointed on April 26 and replaced by Mr. Massco on April 27.

On May 1, 1972, the court, acting on the Government’s motion for reconsideration, entered an order stating, “Because no hearing had been held, the Order of April 27, 1972 was improvidently issued and is hereby rescinded.” The order further scheduled a hearing to be held on May 9 and directed defense counsel to file a formal written motion for withdrawal of the guilty plea.

At the conclusion of the May 9 hearing, after testimony and argument, the court denied Jerry’s motion to withdraw his guilty plea. Jerry subsequently was sentenced to a term of imprisonment for seven years. This appeal followed.

I.

Before proceeding to the dispute surrounding the acceptance of the guilty plea and the subsequent refusal by the district court to allow it to be withdrawn, we first consider issues pertaining to the permissibility of the district court’s order rescinding its prior order which had granted Jerry’s motion to withdraw his guilty plea.

A. The Power of the District Court to Rescind an Order

The first question is whether the district court had the power to rescind its order of April 27, 1972 entered through mistake or “improvidence”. At common law, the general rule, in criminal as well as civil cases, was that judgments, decrees, and orders were within the control of the court during the term at which they were made, and they could be modified, vacated, or set aside by that court. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931). John Simmons Co. v. Grier Brothers Co., 258 U.S. 82, 42 S.Ct. 196, 66 L.Ed. 475 (1922), affirmed the complete power of a federal court over its interlocutory orders. The Court stated: “[I]f an interlocutory decree be involved, a rehearing may be sought at •any time before final decree, provided due diligence be employed and a revision be otherwise consonant with equity.” 258 U.S. at 90-91, 42 S.Ct. at 199. The Federal Rules of Criminal Procedure, 18 U.S.C., however, make no provision for rehearing and modifying or setting aside an order entered through mistake. Does the absence of this power from the Rules, which “were intended to constitute a comprehensive procedural code for criminal cases in Federal courts,” preclude its existence? We think not. F. R.Crim.P. 57(b) provides: “If no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules or with any applicable statute.” Nothing in the Rules limits the power of the court to correct mistakes made in its handling of a case so long as the court’s jurisdiction continues, i. e., until the entry of judgment. In short, the power to grant relief from erroneous interlocutory orders, exercised in justice and good conscience, has long been recognized as within the plenary power of courts until entry of final judgment and is not inconsistent with any of the Rules.

Although research has not uncovered any cases so construing the criminal rules, nor have we been referred to any particularly helpful criminal cases, decisions under the Federal Rules of Civil Procedure do provide some guidance. The Civil Rules, 28 U.S.C., as originally promulgated, contained a somewhat limited provision for relief from a judgment or order. F.R.Civ.P. 60(b) originally provided:

“Mistake; Inadvertence; Surprise; Excusable Neglect. On motion the court, upon such terms as are just, may relieve a party or his legal representative from a judgment, order, or proceeding taken against him through his mistake, inadvertence, surprise, or ' excusable neglect. The motion shall be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order, or proceeding, or (2) to set aside within one year, as provided in Section 57 of the Judicial Code, U.S.C., Title 28, § 118, a judgment obtained against a defendant not actually personally notified.” (Emphasis added.)

This rule applied to interlocutory as well as final orders and did not authorize the court to grant relief from an order entered because of the court’s mistake. Despite the fact that Rule 60(b) was generally thought to cover the field, the inherent power of courts to set aside and reconsider interlocutory orders was nevertheless held not to be precluded or limited by the rule. In Bucy v. Nevada Construction Co., 125 F.2d 213, 217 (9 Cir. 1942), the court stated that “Rule 60 does not affect, interfere with, or curtail the common-law power of the federal courts, but . . . the broad power, which was theirs by the common law, to deal with situations where . . . relief should be granted from manifest error, remained inherent in the courts.” According to 7 Moore’s Federal Practice, [[ 60.16 [4], at 86 (1972), “[T]he Ninth Circuit reached a correct result in holding that the district court still had power over the order, since it was interlocutory and the action was still pending before the court.” See Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 862 (5 Cir. 1970), which, in holding that despite the inapplicability of F.R.Civ.P. 60(b), the district court could at any time prior to final decree rescind an interlocutory order, attested to the continued vitality of the Supreme Court’s decision in John Simmons Co. v. Grier Brothers Co., supra. See also, Cohn v. United States, 259 F.2d 371, 376 (6 Cir. 1958), and Nielsen v. Arabian American Oil Co., 206 F.2d 391 (5 Cir. 1953).

We think the principle of the Buey case is sound whether the case sub judice be civil or criminal: so long as the district court has jurisdiction over the case, it possesses inherent power over interlocutory orders, and can reconsider them when it is consonant with justice to do so. See United States v. Bryson, 16 F.R.D. 431, 435 (N.D.Cal. 1954), aff’d., 238 F.2d 657 (9 Cir. 1956), 243 F.2d 837 (9 Cir. 1957), cert, denied, 355 U.S. 817, 78 S.Ct. 20, 2 L.Ed.2d 34 (1957).

B. The Need for Notice and an Opportunity to be Heard on the Motion for Reconsideration

The district judge entered his order on April 27, 1972 allowing Jerry to withdraw his guilty plea without notice to the Government. Also as we have stated, the district judge on May 1, 1972, acting on the Government’s motion for reconsideration, entered an order rescinding his April 27 order as “improvidently issued” because no hearing had been held. The record does not disclose that Jerry or his then attorney, Mr. Massco, received notice of the Government’s motion. However, even assuming that the lack of notice and an opportunity to be heard deprived Jerry of due process of law so as to render the rescinding order constitutionally invalid, such infirmity was cured by the hearing subsequently afforded him on May 9.

Jerry was provided with full opportunity to present objections to the reconsideration of the motion to withdraw his guilty plea and to argue that the court’s order of April 27 was correct and should be followed, and Jerry’s counsel in fact did so. Jerry’s motion to withdraw his plea of guilty, filed May 5, 1972, in addition to addressing the grounds for withdrawal, also averred that “the Order of * * * [the District Court] dated April 27, 1972 allowing * * * [Jerry] to withdraw his plea of guilty is final and binding.” The request for relief was to withdraw the plea of guilty “in accordance with the prior Order of * * * [the] Court dated April 27, 1972.” At the hearing on May 9, counsel for Jerry strenuously objected to the court’s reconsideration of the motion to withdraw the guilty plea: “I would like the record to show we clearly state we filed the formal motion [of May 5] to withdraw the plea on Order of the Court. By no means do we admit your original Order was improvidently entered.” Counsel further asserted that “[t]he Order of the Court of April 27 allowed the defendant to withdraw his plea and we feel the Government has the burden to go forward to hear [sic] why that Order should have been rescinded.” The Government, however, had met the burden of showing why the order should have been rescinded and reconsidered by calling the judge’s attention to the undisputed fact that the order was entered on the basis of unsworn allegations made without opportunity for the Government to explore or rebut them and without any evidence to support them. Recognizing that the Government had met its burden and that the procedure was inadequate, the district judge stated, “I entered the Order improvidently,” and in point of law, such decision was correct. See United States v. Mainer, 383 F.2d 444 (3 Cir. 1967). Testimony was then taken and complete argument made by opposing counsel as to whether the guilty plea should be withdrawn.

Jerry was therefore not prejudiced by the asserted lack of due process. Rights were not finally adjudicated by the May 1 order, which was in effect merely an interim measure pending a hearing on May 9 to settle the matter.

C. Constitutional Limitations on the Power to Reimpose the Plea of Guilty

1. Double Jeopardy

Jerry must be considered to have been convicted by the entry of his plea of guilty just as if a jury had found a verdict of guilty against him, and jeopardy therefore attached with the acceptance of his guilty plea by the district court. Having been removed from jeopardy by the order of the court allowing withdrawal of his guilty plea, did the reimposition of his guilty plea place him in jeopardy for a second time a violation of the Fifth Amendment?

In our opinion, it did not. As is the case where a defendant by his own motion causes a verdict to be set aside, thereby waiving his constitutional protection against being “twice put in jeopardy” for purposes of re-trial for 'the same offense, so too where a defendant by his own motion causes the withdrawal of his guilty plea, he has waived his right not to be put in jeopardy a second time. See United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964). By requesting that the district court remove him from the jeopardy of the guilty plea, Jerry clearly consented to being “twice put in jeopardy.” “The Fifth Amendment’s prohibition against placing a defendant ‘twice in jeopardy’ represents a constitutional policy of finality for the defendant’s benefit in federal criminal proceedings.” United States v. Jorn, 400 U.S. 470, 479, 91 S. Ct. 547, 554, 27 L.Ed.2d 543 (1971). That policy has not been offended in the case at bar, where no final judgment was entered and Jerry has not been subjected to the harassment of successive prosecutions.

The situation is somewhat complicated by the fact that the form of the second jeopardy was not what Jerry had in mind when he impliedly waived his protection against double jeopardy. No doubt he wanted a second jeopardy to attach by means of trial, not by reimpo-sition of his guilty plea. But the reconsideration of his motion and the reimpo-sition of the guilty plea under the facts of this case no more violates the double jeopardy provision than does the entry of an order by an appellate court reversing a conviction and remanding for a new trial followed by the subsequent reinstatement of the conviction upon rear-gument by a court en banc. See Spinelli v. United States, 382 F.2d 871 (8 Cir. 1967), reversed on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

2. Rights to Trial by Jury .and to Confront One’s Accusers, and Privilege against Compulsory S elf-Incrimination.

Several constitutional rights are waived when a plea of guilty is entered: the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment, the right to trial by jury guaranteed by the Sixth Amendment, and the right to confront one’s accusers protected by the Sixth Amendment. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Assuming for present purposes that Jerry’s plea of guilty was a valid one, so that the rights referred to were not constitutionally protected, did the district court’s order of April 27, 1972, which allowed Jerry to withdraw his guilty plea, restore such rights absolutely, to the effect that the court’s subsequent order dated May 1, 1972 rescinding that prior order operated to unconstitutionally deprive Jerry of those rights?

This is indeed a most vexing problem. The withdrawal of a guilty plea seemingly returns a defendant to a pre-trial status where the constitutional rights in question here are crucial to a fair adjudication. On the other hand, if the power of a judge with respect to a motion for withdrawal of a guilty plea is ended when he grants it and he cannot vacate his order for sufficient cause, it seems apparent that the administration of justice might be impeded or even fail. Unfortunately there does not appear to be any authority on the question. But analogy with comparable situations and sound policy dictates that the power of the district judge be upheld in this instance.

When a new trial is granted by a trial court after a verdict of guilty by a jury, the ease stands as if there had been no trial. The defendant, as here, may be considered to possess all the constitutional rights inherent in that pretrial status. Yet, if upon proper reconsideration, the order granting the motion for a new trial is vacated and the new trial denied, the case stands where it was left by the verdict of the jury. Fine v. Commonwealth, 312 Mass. 252, 44 N.E.2d 659 (1942). This is in line with the general rule that when a court vacates an order previously entered, the legal status is the same as if the order never existed. Mitchell v. Joseph, 117 F.2d 253 (7 Cir. 1941). The order having become a nullity, no rights, constitutional or otherwise, can be considered as accruing from it. This is not to say that a trial judge may constitutionally rescind every order or judgment and thereby treat it as never having existed. For example, entry of a judgment of acquittal is final and cannot be reviewed without running astray of the double jeopardy clause. Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962). But so far as the case at bar is concerned, the order rescinded was entirely interlocutory and the district court retained the jurisdiction necessary to question and correct its decision. Just as this court, in carrying out our statutory directive to render such “appropriate” order as is “just under the circumstances,” may rehear and revise a prior judgment or order while we retain jurisdiction, i. e., until our mandate has issued, even though the original order may cause constitutional rights to accrue, so too the district court, in exercising its power to permit the withdrawal of a guilty plea where such action is fair and just, may reconsider and revise its prior order while it retains jurisdiction even though the prior order would cause constitutional rights to attach if left unchanged.

We therefore conclude that a trial judge, to whose discretion is entrusted the duty to permit the withdrawal of a guilty plea prior to sentencing when it is fair and just to do so, should be free to change his ruling if after further deliberation he concludes that justice so requires. A most obvious case is one in which the motion has been granted upon perjured testimony or some other fraud upon the court. In the present case, inadequacies in the procedure necessitated correction. The effect of the court’s original order was nullified by the subsequent order of rescission.

II.

We next turn to the issues originally raised by Jerry in this appeal:

A. Validity of the Guilty Plea

Jerry contends that his plea of guilty entered on November 17, 1971 should not have been accepted by the court. Focussing on the fact that he still professed his innocence to the charges against him, he claims that an insufficient factual basis existed for the court’s acceptance of his plea.

At the November 17 hearing, Jerry said that he had no knowledge that Saunders intended to rob a bank and that he had driven Saunders to the scene of the crime believing that Saunders was going to purchase liquor. The following colloquy then ensued:

“THE COURT: What is it that you are pleading guilty to, then ?
“MR. JERRY: I am pleading guilty to the circumstances of evidence against me.
“THE COURT: Evidence of what?
“MR. JERRY: Of statements.
“THE COURT: You mean the fact that you gave a statement to the FBI?
“MR. JERRY: Yes, sir, and to the other statements.
* * * * * *
“THE COURT: You have pleaded guilty to an indictment against you of bank robbery or aiding and abetting in a bank robbery. I want to know what facts there are about what you did that make you think you are guilty of that charge ?
“MR. JERRY: Oh, I am not guilty of the charge. Actually, in actuality, I am not, but the circumstances of the situation compels me to bring me before the mercy of the Court.”

The statements referred to by Jerry included a signed 'confession by him given to the FBI. In this statement, Jerry admitted knowing that Saunders intended to rob a bank and explained his participation. There was also a signed statement by Tina Jackson, who had accompanied Jerry and Saunders in the robbery, detailing Jerry’s role in the crime, and a summary of an FBI agent’s interview with Catherine Jones, another woman accompanying the two men, which again implicated Jerry in the robbery. Saunders too had signed a statement admitting his own participation and describing Jerry’s. All these statements and the summary of Miss Jones’ interview were read into the record at the hearing. Jerry’s attorney explained that he had reviewed all the evidence, especially the four confessions implicating Jerry, and the possibility of suppressing Jerry’s confession, and advised him that his conviction was an “overwhelming possibility” and that he should consider a plea, and “. . . it is on that basis that he is pleading.” Jerry did, however, state that he was unsure, and the court called a short recess so that he could again confer with hi's attorney.

After the recess, Jerry informed the court that he had decided to plead guilty, counsel detailed what his advice to Jerry had been, and the court accepted the plea. The district judge explained his decision as follows: defendant at and before the taking of the guilty plea, but the Supreme Court held if it were voluntarily made, it would be accepted. So, this Court, I believe, has discretion under the circumstances, whether or not to accept the plea. I have given it very serious thought and I conclude that I should accept the plea. I am taking into consideration the fact that Mr. Saunders gave an exculpatory statement under oath before this member of the Court about a week ago, shortly after he pled guilty to participation in the same robbery, as well as pleading guilty to a savings and loan robbery which occurred some three weeks previously.

“The Court has reviewed, in the interim, the ease of North Carolina versus Alpert [Alford] in 400 U.S., page 25, [91 S.Ct. 160, 27 L.Ed.2d 162] which seems particularly applicable to this case. In that situation also, there was a protestation of innocence by the

“I am taking into consideration the demeanor and appearance of Mr. Saunders, my evaluation of how he would appear as a witness before a jury. I am taking into consideration Mr. Jerry’s appearance and demeanor and method of speaking and how I feel he might impress a jury.

“While I think experience in jury trials tends to make one feel less and less able to predict what a given verdict will be under a given situation, I feel that my experience would tend to confirm the opinion of Mr. Conner that it is very likely a jury would return a guilty verdict in this case.

“The statements made by the defendant, Mr. Jerry, the statement made by the witnesses to the Government all seem more likely and more reasonable than the version given by Mr. Jerry today of what transpired.

“I doubt if believing that a jury would accept the fact that Mr. Jerry knew nothing of the purpose of the trip to the shopping center, was unaware of what Saunders planned to do.

“With all these things in mind, I choose to exercise my discretion to accept the guilty plea.

“Very well, Mr. Jerry, we will accept your guilty plea and I will order a presentence report. As soon as the report is received, I will allow your attorney, Mr. Conner, to review it in advance of the hearing, and we will enter sentence after that.”

A review of the record makes clear that Jerry was fully advised of his rights and voluntarily entered the plea of guilty. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), established that a defendant’s protestations of innocence are not inconsistent with a voluntary, knowing, and understanding guilty plea, and the court may properly accept such plea where it is supported by a strong factual basis in the record. The evidence produced by the Government at the November hearing met that standard. The statements of the witnesses and Jerry’s prior confession constituted strong evidence of actual guilt and severely contradicted the version given that day by Jerry. We conclude therefore that the validity of the guilty plea cannot seriously be questioned.

B. Withdrawal of the Guilty Plea

A hearing was held on May 9, 1972, to consider Jerry’s motion for withdrawal of his guilty plea. Among those testifying was John S. McCarthy, an FBI agent who had worked on the case. Agent McCarthy testified concerning evidence recovered shortly after the robbery: stolen money, the shirt, beige wool knit hat, and pink panties (used for a mask) worn by the robber, the pillowcase used to carry the stolen money, and a pistol and cartridges (other ammunition for the pistol was found in the car Jerry had been driving). He stated that these items were disposed of by the FBI on April 7, 1972 “since the guilty plea was entered and he [Jerry] was sentenced.” The shirt, beige wool knit hat, pink panties, and pillowcase had been discarded, the money put back in circulation, and the gun and ammunition returned to local police.

At the conclusion of the hearing, the district court denied Jerry’s motion for withdrawal of his guilty plea, stating, “The case of Stratton [sic — United States v. Stayton, 408 F.2d 559 (3 Cir. 1969)] emphasizes that the Court in a situation to which I think this case applies may permit the withdrawal of a plea, if that seems fair and just. The Court goes on to say it doesn’t mean every motion for withdrawal before sentence be granted. There is no absolute right to withdraw a guilty plea and the right to do it is within the sound discretion of the Trial Court.

“The Court also goes on to show if there is substantial prejudice to the Government, then in the Trial Court’s discretion, the motion may be denied. ******
“. . . My order of a few days ago, which was improvidently entered, was based on a feeling that in most cir-cumstanees a defendant should be permitted to go to trial, if no other intervening circumstances made that course unjust.
“I admit that when I signed that order, I failed to consider the possible prejudice to the Government. I am now convinced that prejudice to the Government requires that I refuse to accept the defendant’s motion to withdraw the guilty plea. The destruction of the evidence will hinder the Government in its prosecution and I do not feel that after this length of time that the defendant should be permitted to withdraw his plea and proceed to trial when the Government’s chances of a successful prosecution have been weakened.”

It is readily apparent that the district court applied the standard to be used when motions for withdrawal of a guilty plea are filed before sentencing. Under that standard, the district court may, in its discretion, permit a defendant to withdraw his guilty plea and have a trial if for any reason the granting of the privilege seems fair and just. United States v. Stayton, 408 F.2d 559 (3 Cir. 1969); United States v. Vallejo, 476 F.2d 667 (3 Cir. 1973). However, the right to withdraw a guilty plea is not an absolute one. Attention must be paid to the surrounding circumstances, including any substantial prejudice which would inure to the Government. United States v. De Cavalcante, 449 F.2d 139 (3 Cir. 1971); United States v. Stayton, supra. The granting of such motion “lies within the sound discretion of the trial court and its determination will only be disturbed where it has abused its discretion.” United States v. Vallejo, supra, 476 F.2d at 669.

Under the facts of this case, we cannot find that the district court abused its discretion. Although the physical evidence disposed of was worn and/or carried by Saunders during the robbery, it was referred to in Jerry’s written confession and described in the statements made by companions Tina Jackson and Catherine Jones. In view of the likelihood that any testimony by Jerry at a trial would contradict his confession, and the distinct possibility that Miss Jackson and Miss Jones would also contravene their earlier statements, the discarded evidence would serve the important function of corroborating the details of their prior statements. It was therefore within allowable judicial discretion to consider this significant potential prejudice to the Government as determinative in denying the withdrawal of the plea.

We thank the Amici for their able and diligent assistance in solving the problems presented by this case.

The judgment of the district court will be affirmed.

      . The parties were given the opportunity to file responses to the Amicus brief. Only the Government has done so.

      . The evidence retrieved, in addition to bank’s money, included the shirt, hat and mask (female panties) used in the robbery, a pillowcase in which the money had been placed, and a pistol and ammunition. See Transcript, April 6, 1972, at 46.

      . Transcript, Nov. 17, 1971, at 18-20.

      . Transcript, April 6, 1972, at 3-10.

      . John Bowser, Esq., had been appointed to represent Jerry on April 26, but was replaced by Mr. Massco the next day. Mr. Bowser and Mr. Massco perhaps are law partners.

      . The motion, filed May 5, 1972, stated as follows:
      “MOTION TO WITHDRAW PLEA OF GUILTY
      “AND NOW, comes the Defendant, Bernard Jerry, by his Attorney, Francis P. Massco, and moves this Honorable Court to permit the Defendant, Bernard Jerry, to withdraw his plea of guilty and to reinstate the Order of Court of April 27, 1972 permitting said withdrawal, and in support of said motion represents as follows:
      “1. The Defendant contends that his guilty plea entered on November 17, 1971, was not intelligently entered as the Defendant contends he was improperly advised by prior counsel of record.
      “2. The Defendant avers that he was under the impression that he was not scheduled for formal and final sentencing until after the completion of the study of him and that he could withdraw his plea of guilty at any time prior to the formal and final sentencing.
      “3. The Defendant avers that manifest injustice would result to him if he is not permitted to withdraw his plea of guilty.
      “4. The Defendant avers that he is not guilty of the charges contained in the indictment.
      “5. The Defendant avers that the United States of America would not be prejudiced by permitting him to withdraw his plea.
      “6. The Defendant avers that he was persuaded to enter a guilty plea after being advised that certain evidence in the possession of the United States Government was impossible to rebut.
      “7. The Defendant avers that he was not aware of the possible results of entering a guilty plea and that he was not aware of the possible alternatives available to him.
      “8. The Defendant has no objection to and is agreeable to the reinstatement of the second count of the indictment.
      “9. The Defendant avers that this formal written motion for withdrawal of his guilty plea is being made pursuant to Order of this Honorable Court dated May Í, 1972 and the Defendant further avers that the Order of this Honorable Court dated April 27, 1972 allowing him to withdraw his plea of guilty is final and binding.
      “WHEREFORE, Defendant moves this Honorable Court to enter an Order allowing him to withdraw his plea of guilty in accordance with prior Order of this Court dated April 27, 1972.
      “Respectfully Submitted
      Francis P. Massco
      Bowser & Massco
      Attorney for Defendant”

      . While none of these issues were raised by Jerry’s counsel below or on this appeal, they are fundamental to the fairness of the proceedings below and deserve recognition on appeal. See F.R.Crim.P. 52(b) ; United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 80 L.Ed. 555 (1936) ; Government of Virgin Islands v. Smith, 445 F.2d 1089, 1094 (3 Cir. 1971).

      . Note to Rule 57, Notes to Rules of Criminal Procedure (March 1945).

      . F.R.Civ.P. 60(b) was extensively revised in 1946, becoming applicable to final judgments, orders, and proceedings.

      . See Notes of Advisory Committee on 1946 Amendments to Rules, F.R.Civ.P. 60, subdivision (b).

      . Transcript, May 9, 1972, at 4.

      . Id.

      . Id.

      . United States Constitution, Amend. V, states in part: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb * *

      . The validity of the plea is discussed in Part 11(A), infra.

      . See 28 U.S.C. § 2106 (1970).

      . See, e. g., Forman v. United States, 361 U.S. 416, 80 S.Ct. 481; 4 L.Ed.2d 412 (1960), where the original order of the Court of Appeals directed entry of a judgment of acquittal, which would of course ordinarily cause the defendant’s double jeopardy rights to accrue, but on rehearing, a new trial was ordered.

      . See United States v. Stayton, 408 F.2d 559 (3 Cir. 1969).

      . F.R.Crim.P. 11 provides that . . The court may refuse to accept a plea of guilty, and shall not accept such plea without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. . . . The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.”

      . Transcript, Nov. 17, 1971, at 8.

      . Id. at 8-9.

      . Id. at 16-17.

      . “The Court: Mr. Jerry, you have heard the statement that the prosecution has and I have heard your version of how this incident occurred. Do you realize if the jury believed what you told me today, you would probably be acquitted?
      Mr. Jerry: Yes, sir, I know that.
      The Court: If the jury, on the other hand, believes the statement you gave the. FBI and the statement which was read that was given by the two girls in the car, the possibilities are that the jury could convict you.
      Do you understand that?
      Mr. Jerry: Yes, sir.
      The Court: Do you still wish to plead guilty?
      (Long pause.)
      Mr. Jerry: Your Honor, I am- in an unde-cisive statement.
      The Court: Do you want some more time to talk with your attorney?
      Mr. Jerry : Yes, sir.
      The Court: Let’s take a ten-minute recess.
      (Brief recess.)
      The Court: Let the record show that we are resuming at 12:20, from 12:00 o’clock.” (Transcript, Nov. 17, 1971, at 27-28.)

      . “The Court: Mr. Jerry, you have had an opportunity to think about this and to talk with your attorney. What is your decision?
      Mr. Jerry: Guilty, Your Honor.
      The Court: You have decided to plead guilty?
      Mr. Jerry: Yes, sir.
      Mr. Conner: Your Honor, I have advised Mr. Jerry that we can’t rely on the Government calling the other three persons as witnesses against him, but we might probably rely on them, in his defense, and if they gave totally exculpating testimony at the trial, they would be faced with the Government cross-examination on the basis of the statements, both oral and written, that were read today.
      He is aware of those possibilities.
      I have advised him of the applicable law as I know it, of the effect of these statements, of the effect of his own statement, of the possibility of suppressing his statement and of the probability at the time of trial, which I assess as heavily weighted against a verdict in his behalf.
      The Court: Then you do recommend a guilty plea?
      Mr. Conner: On the basis of my conversations with Mr. Jerry that have taken place on three or four occasions at the jail where we went over the events of this particular day and the remarks made in his statement, I have advised him that he should plead.
      The Court: All right.” (Transcript, Nov. 17, 1971, at 33.)

      . Transcript, Nov. 17, 1971, at 33-35.

      . Id. at 4-6. See also Transcript, May 9, 1972, at 23.

      . Transcript, May 9, 1972, at 49.

      . Id. at 69-70.

      . We need not reach the Government’s contention that a motion to withdraw a guilty plea made after entry of the initial sentence, but prior to entry of the “final” sentence pursuant to 18 U.S.O. § 4208(b), should be regarded as made after imposition of sentence, thereby calling for the application of a stricter standard (“to correct manifest injustice” — see F.R.Crim.P. 32(d) ; see also Sherman v. United States, 383 F.2d 837 (9 Cir. 1967)), for even under the more liberal pre-sentence standard the district court’s ruling must be upheld.

      . See Brief of Appellant, p. 11, which states, “The government ... is concerned because the actual robber and the two female companions will exculpate the Appellant.”


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Marvin A. WURZER et al., Plaintiffs-Appellants, v. UNIVERSITY OF HOUSTON and Lamar University et al., Defendants-Appellees.
    No. 73-2714
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 7, 1973.
    Rehearing and Rehearing En Banc Denied Dec. 28, 1973.
    Peter D. Williamson, Houston, Tex., Phillip Bordages, Beaumont, Tex., for plaintiffs-appellants.
    John L. Hill, Atty. Gen., Sam L. Jones, Jr., Asst. Atty. Gen., Austin, Tex., for defendants-appellees.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

Plaintiffs requested a three-judge court to hear their suit challenging the constitutionality of Texas statutes which prescribe different college tuition fee schedules for residents and nonresidents and establish a one-year presumption of nonresidency for recent transferees into the state. The District Court denied the request for a three-judge court on the ground that the complaint presented no substantial federal question.

The District Court predicated its decision on Starns v. Malkerson, 326 F.Supp. 234 (D.Minn.1970) (Three-Judge), aff’d, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971), and Weaver v. Kilton, 357 F.Supp. 1106 (E.D.Tex.1973). In Starns, the United States Supreme Court summarily affirmed a Three-Judge District Court’s decision upholding the validity of Minnesota’s tuition differential between resident and nonresident students and the State’s presumption of nonresidency for those who had lived in Minnesota for less than one year. In Weaver, a Three-Judge Court in the Eastern District of Texas upheld the constitutionality of the Texas Statute here under attack.

The issue on this appeal is whether a substantial question remains concerning the constitutionality of the Texas statutes in light of these prior decisions.

The role of prior decisions vis-a-vis convening a Three-Judge District Court was recently discussed by the Supreme Court in Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973).

In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions which merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281. A claim is insubstantial only if “its unsoundness so clearly results from the previous decisions of this Court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.”

In light of the discussion, we do not think Stams and Weaver rendered the constitutional claims against these Texas statutes insubstantial.

Stams was decided on somewhat different facts from those alleged in the case at bar. In Stams, the plaintiffs were married women who moved to Minnesota and attempted within the one year period to enroll as resident students. In the case sub judice, the complaint alleges that a number of the plaintiffs have lived in Texas more than one year; a number of the plaintiffs are unmarried females; some plaintiffs are under 21 years of age; some are receiving support from, or are living with parents ; some were born in Texas, left, and returned later; some worked full-time before entering the respective school attended; and some have paid State taxes for varying periods.

In addition, the holding in Stams has been questioned by Justices Marshall and Brennan in their concurrence in Vlandis v. Kline, 412 U.S. 444, 93 S.Ct. 2230, 37 L.Ed.2d 63 [1973].

I recognize that in Starns v. Malker-son, 401 U.S. 985 [91 S.Ct. 1231, 28 L.Ed.2d 527] (1971), we summarily affirmed a district court decision sustaining a one-year residency requirement for receipt of in-state tuition benefits. But I now have serious question as to the validity of that summary decision in light of well-established principles, under the Equal Protection Clause of the Fourteenth Amendment, which limit the States’ ability to set residency requirements for the receipt of rights and benefits bestowed on bona fide state residents. See Dunn v. Blumstein, 405 U.S. 330 [92 S.Ct. 995, 31 L.Ed.2d 274] (1972); Shapiro v. Thompson, 394 U. S. 618 [89 S.Ct. 1322, 22 L.Ed.2d 600] (1969).

Id. at 93 S.Ct. 2238.

Weaver, as a case from the Eastern District of Texas, has only advisory value in the Southern District of Texas. The strength of the case as a precedent here is further lessened because it apparently could have been disposed of without reaching the constitutional issue.

Thus, having failed to allege the jurisdictional statutes necessary to invoke limited, federal jurisdiction, the instant complaint is fatally defective^ and must be dismissed.
Even though Plaintiff has not shown any jurisdictional prerequisites, some comment on the merits seems advisable in view of the popular sentiments and interest in the issues. Therefore, for purposes of discussion the Plaintiff’s Complaint will be treated as if jurisdiction had been properly pled and proved.

357 F.Supp. at 1108.

The prior decisions do not “inescapably render the claims frivolous” and a three-judge court should have been requested. We, of course, intimate no opinion as to the ultimate disposition of the merits of the controversy,

Reversed and remanded.


text:
    David Richard CAILLE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-2614.
    United States Court of Appeals, Fifth Circuit.
    Nov. 26, 1973.
    David Richard Caille, pro se.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ralph E. Harris, Asst. U. S. Atty., El Paso, Tex., for respondent-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.
   PER CURIAM:

David Richard Caille appeals from an order of the district court, denying his motion attacking his sentence, filed pursuant to 28 U.S.C.A. § 2255. We vacate the judgment below and remand the cause for further proceedings.

Appellant, represented by counsel, was convicted upon his plea of guilty of possessing, with intent to distribute, approximately two pounds of marihuana in violation of 21 U.S.C.A. § 841(a) (1). He was sentenced on December 6, 1972, to a prison term of three years and fined $3000.00. There was no direct appeal.

Thereafter, the appellant petitioned the court below for a reduction of sentence in accordance with Rule 35, Federal Rules of Criminal Procedure. The district court denied the motion on January 29, 1973, but also added a special parole term of three years to the sentence, which is the minimum required by 21 U.S.C.A. § 841(b).

The appellant, in the present proceedings, attacks the enhancement of his sentence on grounds that he was not present in the court for this addition to it. He further contends that it was an error to sentence him twice for the same conviction. The court below denied relief, holding that the motion attacking the sentence had no merit, but stating no written reasons for the ruling.

Appellant is not entitled to relief on grounds that he was “sentenced twice.” When the district court became aware that the mandatory special parole term provided by 21 U.S.C.A. § 841(b)(1) (A) had not been imposed, it had a duty to comply with the statute. Bozza v. United States, 1947, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818; United States v. Thomas, 2 Cir. 1973, 474 F.2d 1336, affirming, United States v. Thomas, E.D. N.Y.1972, 356 F.Supp. 173; Orrie v. United States, 8 Cir. 1962, 302 F.2d 695.

In the Bozza case, the prisoner had been convicted of offenses which carried mandatory sentences of fines as well as imprisonment, but the court had sentenced him only to terms of imprisonment. Some five hours later the court recalled Bozza and imposed the minimum mandatory fines, as well as terms of imprisonment within the limits provided by statute. On appeal, Bozza contended that the district court had no power to increase his sentence once he had begun to serve it, he having been removed after the first sentencing to a jail for transportation to the place where the sentence was to be served. The Supreme Court upheld the resen-tencing of Bozza on the conviction under the one count of the indictment which it affirmed. The Court stated its reasoning as follows:

“ * * * Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such, prior conviction, impose a special parole term of at least 3 years, in addition to such term of imprisonment
“It is well established that a sentence which does not comply with the letter of the criminal statute which authorizes it is so erroneous that it may be set aside on appeal, Reynolds v. United States, 98 U.S. 145, 168-169, 25 L.Ed. 244; Murphy v. Massachusetts, 177 U.S. 155, 157, 20 S.Ct. 639, 640, 44 L.Ed. 711, or in habeas corpus proceedings; In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149. But in those cases it was recognized that an excessive sentence should be corrected, even though the prisoner had already served part of his term, not by absolute discharge of the prisoner, but by an appropriate amendment of the invalid sentence by the court of original jurisdiction, at least during the term of court in which the invalid sentence was imposed. Cf. De Benque v. United States, 66 App.D.C. 36, 85 F.2d 202. In the light of these cases, the fact that petitioner has been twice before the judge for sentencing and in a federal place of detention during the five hour interim cannot be said to constitute double jeopardy as we have heretofore considered it. Petitioner contends, however, that these cases are inapplicable here because correction of this sentence so as to make it lawful increases his punishment. Cf. United States v. Benz, 282 U.S. 304, 309, 51 S.Ct. 113, 75 L.Ed. 354. If this inadvertent error cannot be corrected in the manner used here by the trial court, no valid and enforceable sentence can be imposed at all. Cf. Jordan v. United States, 4 Cir., 60 F. 2d 4, 6, with Barrow v. United States, 54 App.D.C. 128, 295 F. 949. This Court has rejected the ‘doctrine that a prisoner, whose guilt is established, by a regular verdict, is to escape punishment altogether, because the court committed an error in passing the sentence.’ In re Bonner, supra at 260, 14 S.Ct. 323. The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner. See King v. United States, 69 App.D.C. 10, 15, 98 F.2d 291, 296. In this case the court ‘only set aside what it had no authority to do and substitute[d] directions required by the law to be done upon the conviction of the offender.’ In re Bonner, supra at 260, 14 S.Ct. 323. It did not twice put petitioner in jeopardy for the same offense. The sentence, as corrected, imposes a valid punishment for an offense instead of an invalid punishment for that offense.” (Footnotes omitted.) 330 U.S. at 166, 167, 67 S.Ct. at 648, 649, 91 L.Ed. at 821, 822.

In Orrie v. United States, 8 Cir. 1962, 302 F.2d 695, the prisoner had been sentenced to serve two years on an offense which carried a five-year mandatory minimum term. Three days later, the court had Orrie returned before it and resentenced him to serve five years. The district court’s denial of his motion to vacate the sentence was affirmed on appeal. The appellate court held that since the sentence first imposed was illegal, Rule 35, F.R.Crim.P. authorized the trial court to correct it at any time.

In a case similar on its facts to the case sub judice, the Second Circuit recently affirmed without opinion, the district court’s denial of Rule 35 relief. United States v. Thomas, 2 Cir. 1973, 474 F.2d 1336, affirming, United States v. Thomas, E.D.N.Y.1972, 356 F.Supp. 173. In the Thomas case, the district court upheld its subsequent addition of a three-year special parole term to a sentence of imprisonment which had been imposed some months earlier.

The New York district court reasoned that “Since the special parole term is a mandatory addition to the regular term of imprisonment, the sentence to a special parole term which was inadvertently omitted does not constitute an illegal increase in the sentence.” 356 F.Supp. at 174. We agree.

We reach a different conclusion concerning the appellant’s contention that he was entitled to be present at the proceedings wherein his sentence was modified. Rule .43, F.R.Crim.P., provides in pertinent part that “The defendant shall be present ... at the imposition of sentence. . . . ” An exception stated by the Rule is that “The defendant’s presence is not required at a reduction of sentence under Rule 35.” See United States v. McCray, 10 Cir. 1972, 468 F.2d 446.

It is clear to us that addition of the three-year special parole term made the new sentence more onerous than it was previously. Accordingly, the appellant has the right to be present at such re-sentencing, in compliance with the relevant provision of Rule 43. See U. S. v. McCray, supra; United States v. Brown, 5 Cir. 1972, 456 F.2d 1112; Cook v. United States, 1 Cir. 1948, 171 F.2d 567, cert, denied 1949, 336 U.S. 926, 69 S.Ct. 647, 93 L.Ed. 1088; see also Williamson v. United States, 5 Cir. 1959, 265 F.2d 236.

The district court apparently was of the opinion that appellant need not be present because the special parole term imposed was the minimum authorized by the statute. In our view, however, imposition of the special parole term was not merely a ministerial act. If the district court had been aware at the time of sentencing that the special parole term must be imposed, it may well be that a shorter prison term would have been awarded. On remand that course will be open to the district court.

Accordingly, we vacate the judgment below insofar as it held that the appellant was not entitled to be present when his sentence was amended by addition of the special parole term. The cause is hereby remanded to the district court with directions to resentence the appellant in proceedings at which he shall be present, and represented by counsel if he so desires.

Vacated and remanded, with directions.

      . 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. Kim-brough v. Beto, Director, 5 Cir. 1969, 412 F.2d 981.

      . Section 841(b)(1)(A) of Title 21 provides in pertinent part as follows;

      . This point was not raised or adverted to in the Thomas case, supra.


author: WISDOM, Circuit Judge:

text:
    E. Elwood LEWIS and James McDonald, Plaintiffs-Appellants-Appellees, v. WALSTON & CO., INC., Defendant-Appellee, Jackie DeCasenave, Defendant-Appellant.
    No. 72-3535.
    United States Court of Appeals, Fifth Circuit.
    Nov. 23, 1973.

      Michael Nachwalter, Miami, Fla., for plaintiffs-appellants.
    Cromwell A. Anderson, Jr., Miami, Fla., for defendant-appellee.
    Before WISDOM, GODBOLD and IN-GRAHAM, Circuit Judges.
   WISDOM, Circuit Judge:

The plaintiffs, Elwood Lewis and James McDonald, brought this suit against Walston & Co., a brokerage firm, and its registered representative, Mrs. Jackie DeCasenave, to recover for losses they sustained on the purchase of unregistered securities. They sue under §§ 12(1) and 12(2) of the Securities Act of 1933, 15 U.S.C. § 77Z(l)-(2) (1970), and under the Florida Blue Sky Law, Florida Statutes § 517.21. After a jury verdict for $70,000 in favor of the plaintiffs against both defendants, the trial judge, 347 F.Supp. 995, granted judgment notwithstanding the verdict in Walston’s favor, but refused to set aside the verdict against Mrs. DeCasenave. The plaintiffs appeal from the grant of judgment n. o. v. in favor of Walston, and Mrs. DeCasenave appeals from the denial of judgment in her favor. We reverse the judgment for Walston, and affirm the judgment against Mrs. DeCasenave.

I.

The two plaintiffs were both longtime customers of Walston’s Fort Lau-derdale office before the events leading up to this suit began. Mrs. DeCasenave had regularly serviced Lewis’s account for about a year and McDonald’s account for about three years. This suit concerns the plaintiffs’ purchases of stock in Allied Automation, a company that until it went into receivership had been developing a machine for converting all forms of currency into money orders. Lewis purchased $50,000 worth of stock in this company in three different blocks between January and April 1969; McDonald purchased $20,000 in two different blocks between January and June 1969.

From November 1968 on Mrs. De-Casenave touted Allied Automation to the plaintiffs by telephone and whenever they came in to the Walston office on business. She told them about the company, and about its plan for developing the money changing machine; in the Walston offices she showed them pictures of the machine and literature on the company; she voiced optimistic opinions about the appreciation potential of the company’s stock. In early December 1968, in the Walston offices, she introduced McDonald and Lewis to one F. N. (“Jim”) James, an officer of Allied-Automation. After that introduction, she continued to tout the stock as a “potential IBM”. She told the plaintiffs that the company would go public at a price between $13.50 and $15 per share, but that they could then purchase the stock at the “ground floor” because a certain number of shares could be allocated to them at a price of $5 per share. She falsely stated that Walston would be “taking a position” in the stock.

On January 3, 1969, Mrs. DeCasenave arranged a meeting among Lewis, McDonald, James, and Ron Lucas, James’s partner in a partnership called International Industries. Lucas, who was also an Allied Automation officer, had come to Fort Lauderdale from the company’s headquarters in Alexandria, Virginia, apparently for the express purpose of arranging a deal with Lewis and McDonald. The four met first at the Wal-ston office, then went to a nearby coffee shop where they met for at least one and a half hours negotiating their deal, and returned to the Walston offices, where they consummated the deal. On the morning of the meeting Mrs. De-Casenave had again told McDonald that Walston would be taking a position in Allied Automation. She also told him that Lucas would meet in the afternoon with Jim Gaff, Vice President and Manager of Walston’s Fort Lauderdale office. Mrs. DeCasenave, in the presence of McDonald and Lewis, took James and Lucas into Gaff’s office at Walston where they spent about 25 minutes with Gaff. In consummating the deal at the Walston office, Lewis gave Lucas and James his personal check for $10,000 for 2,000 shares of Allied Automation stock at $5 per share. In return, James and Lucas, in the name of their partnership, issued him a receipt and an “investment letter” covering the 2,000 shares. The “investment letter” stated that Lewis had purchased the shares for investment purposes only and not for distribution or resale. He received no stock certificates, either on January 3 or on any later date; his understanding was that stock certificates would be issued to him only when the company went public. Mrs. DeCasenave assured him that the “investment letter” was an ordinary letter of purchase of stock.

McDonald also agreed to buy Allied Automation stock at the January 3, 1969, meeting, but he did not have the cash available to give the partnership his personal check. He agreed to purchase 3,000 shares for $15,000. A few days after January 3, he delivered his check for $15,000 to the partnership’s bank. McDonald, however, according to his own testimony, did not intend to hold all 3,000 shares for himself and he did not pay for the stock entirely with his own funds. He testified that he bought only $5500 of that stock for himself; the rest he purchased for four of his relatives. This included 200 shares ($1,000 worth) for his father, Alex McDonald; 200 shares ($1,000) for his uncle, Peter McDonald; 1100 shares ($5,500) for William Johnston, an in-law of McDonald’s; and 400 shares ($2,000) for Joe Gordon, the husband of Johnston’s niece. McDonald got the money for these blocks of stock from the parties for whom he bought them, except that he appears to have purchased the stock he was to give his father with money borrowed for that purpose from Johnston. But, although he purchased the stock for his relatives with their money, the “investment letter” that Lucas-James partnership gave him in return for his $15,000 cheek — the only evidence of stock ownership given him or anyone else — showed McDonald to be the purchaser of the entire 3,000 share block. McDonald testified that he intended to distribute the stock to his relatives on Allied Automation going public.

After the January 3. meeting, Mrs. DeCasenave continued to tout Allied Automation, and she kept Lewis and McDonald abreast of developments in the company. In March, she called Lewis, who was then vacationing in North Carolina, to tell him that an additional 1,000 shares of Allied Automation were available. When Lewis returned to Florida, he went to Mrs. DeCasenave’s office at Walston; on March 17, he purchased the additional thousand-share block at Mrs. DeCasenave’s desk. Later Mrs. De-Casenave again called him to tell him more stock was available; and Lewis bought his final block of shares — 7,000 shares for $35,000 — at a meeting at his home with James. Lewis testified that all the negotiations for this purchase were conducted in Mrs. DeCasenave’s Walston office. McDonald made his final purchase of 1,000 shares for $5,000 on June 19, 1969. This purchase, too, was made after Mrs. DeCasenave had called McDonald to tell him that an additional 1000 shares had been allocated to him at $5 a share; she advised him to take them, and he did.

Mrs. DeCasenave procured most of the purchase price for the plaintiffs by selling listed stocks out of their accounts at Walston and providing checks from the proceeds for the plaintiffs to use in purchasing stock in Allied Automation.

According to his own testimony, Gaff, the Vice President and Manager of the Fort Lauderdale office knew about Allied Automation and its plans for producing a money-changing machine; and he knew that Mrs. DeCasenave was interested in and was touting the stock. Gaff testified that he knew that Lewis was interested in the stock, but said that he did not recall whether Mrs. De-Casenave had ever told him of McDonald’s interest in the stock. Gaff said that he had told Mrs. DeCasenave that she “ought to stick to her own business and run stocks instead of trying to talk about pies in the sky all the time”. According to Lewis’s testimony, Gaff also had advised him against purchasing the stock; Lewis said Gaff had told him that there were “too many listed stocks on the board to be investing in a company like this where there could be a margin of risk”. But Gaff admitted that he had never ordered Mrs. DeCasenave to make an investigation of Allied Automation, that he never tried to get Mrs. DeCasenave to desist from her efforts to get the plaintiffs to buy the stock, and that he never sought to communicate to the plaintiffs that he did not want De-Casenave to get involved in deals in the stock.

Mrs. DeCasenave raises three issues on appeal. She contends (1) that the evidence was not sufficient to support the verdict against her and that the district court therefore erred in denying her motion for judgment n. o. v.; (2) that McDonald was not the “purchaser” of the stock bought in his relatives’ behalf, and that he therefore does not have standing to recover for losses suffered from the purchase of that stock; and (3) that the district court erred in refusing to direct a verdict on the plaintiffs’ claim under the Florida Blue Sky Law. The plaintiffs’ appeal consists of an attack on the district court’s action in setting aside their verdict against Walston. They argue that Walston could have been held liable under federal law on any of three different theories of liability, and that the evidence was sufficient to establish Walston’s liability on any of the three grounds. They also argue that the evidence supported a verdict against Walston on the state law claim.

We take up Mrs. DeCasenave’s appeal first.

II.

Liability for the sale of unregistered securities is absolute under § 12(1) of the Securities Act of 1933. A purchaser may recover regardless of whether he can show any degree of fault, negligent or intentional, on the seller’s part. Liability is established if the plaintiff proves three elements: (1) that no registration statement covering the securities involved was in effect; (2) that, in the language of the statutes, the defendants were “person [s] who [sold] or offer [ed] to sell” the securities; (3) that the mails, or facilities for interstate transportation or communications were used in making the sale. In this case, since the parties stipulated that the first and third elements were present, the only question for the jury to decide was whether Mrs. DeCasenave “sold” the Allied Automation stock, within the meaning of § 12(1).

Mrs. DeCasenave of course was not a “seller” in the most common sense of that word, that is, she was not the party who parted with the securities sold and received the consideration given in exchange. That, however, is not conclusive under § 12(1), for the courts have recognized that other parties who. participate in the negotiations of or arrangements for the sale of unregistered securities “sell” those securities within the meaning of § 12(1). See Cady v. Murphy, 1 Cir. 1940, 113 F.2d 988; 3 L.Loss, Securities Regulation at 1714-16 (2d ed. 1961). Brokers have long been held liable as sellers under § 12(2), as have other parties responsible for bringing about sales of securities they themselves do not own. Hill York Corp. v. American International Franchises, Inc., 5 Cir. 1971, 448 F.2d 680; Lennerth v. Mendenhall, N.D.O.1964, 234 F.Supp. 59. In Hill York, this Court announced the test applied in this Circuit to determine whether a participant in the arrangements for a sale “sells” securities within the meaning of § 12(1). The test is whether the party is the “proximate cause” of the sale.

The first and principal ground Mrs. Casenave asserts for reversal of the judgment against her is that the evidence adduced át trial did not provide a substantial basis for concluding that she was the proximate cause of the sale of Allied Automation stock. We find this contention altogether untenable. Mrs. DeCasenave does not dispute the facts that she touted the Allied Automation stock heavily to the plaintiffs, arranged the January 3 meeting, and notified the plaintiffs that there was additional stock available before each of the plaintiffs’ later purchases. The jury could permissibly infer from these facts that Mrs. DeCasenave’s actions were a “substantial factor” in bringing about the plaintiffs’ purchases, and thus the “proximate cause” of those purchases. Moreover, both plaintiffs testified that throughout their dealings in Allied Automation they had “relied on [their] broker”; and, although they are interested witnesses, the judgment of their credibility was for the jury. Viewing the evidence “in the light and with all reasonable inferences most favorable” to the plaintiffs, it is impossible to say that “the facts and inferences point so strongly and overwhelmingly” in Mrs. DeCasenave’s favor that reasonable men could not have found for the plaintiffs-. Boeing Co. v. Shipman, 5 Cir. 1969, 411 F.2d 365, 374. The district court therefore properly denied Mrs. DeCasenave’s motion for judgment notwithstanding the verdict.

Mrs. DeCasenave’s second ground concerns only the $9500 worth of stock McDonald purchased with his relatives’ money. Mrs. DeCasenave’s position is that only the relatives, and not McDonald, had standing to recover for losses on this stock. She notes that § 12(1) grants a right of recovery against a seller only to “the person purchasing such security from him”, and she suggests that McDonald’s recovery here subjects her to a risk of double liability.

We cannot accept this contention, for it seems to us that the record compels the conclusion that McDonald was recognized as the “purchaser” of this stock. To be sure, the record does indicate that the money for the purchases was supplied by his relatives and that McDonald intended, on the stock’s going public, to distribute shares to his relatives proportionate to the amounts they had paid. But the key fact is that the stock purchased with the relatives’ money was purchased in McDonald’s name and as far as the parties were concerned, he was, for all intents and purposes, the owner of the stock. McDonald, like Lewis, was never issued certificates on the Allied Automation stock he bought; the only document evidencing his ownership was the letter of investment intent, and that letter showed McDonald as the sole purchaser of the entire block of shares. All those involved recognized that McDonald was the purchaser of the entire block of shares and would retain title until some then undetermined future date. On this state of the record, we can only conclude that McDonald was entitled to sue on the entire block of shares; and that the relatives would not have been entitled to sue the defendants in their own names prior to the Allied Automation’s going public. McDonald’s recovery was therefore appropriate; since the relatives did not have the right to sue, Mrs. DeCasenave was not subject to any risk of double liability.

Mrs. DeCasenave’s third ground concerns the propriety of the plaintiffs’ recovery under the Florida Blue Sky law. Our holding on her first two grounds establishes her liability for the full amount of the plaintiffs’ losses under federal law and makes it unnecessary for us to consider this question.

III.

The plaintiffs attack the award of judgment n. o. v. in Walston’s favor by arguing that the evidence was sufficient to support a verdict against Walston on any one of three theories. They contend that the evidence supports (1) the conclusion that Walston itself proximately caused the sale of stock to the plaintiffs, and thus was a “seller” of the securities within the meaning of the Hill York case; (2) the conclusion that in taking the actions the jury found proximately caused the sale, Mrs. De-Casenave was clothed with apparent authority from Walston; and (3) that in taking those actions, Mrs. DeCasenave was acting within the line and scope of her employment. We do not address the first two of these contentions, because we find that the evidence supported a verdict against Walston on the third theory, and that the award of judgment n. o. v. in Walston’s favor must therefore be reversed.

The American Law Institute’s Restatement (Second) of Agency describes what is meant by the term “within the scope of employment” in the following manner:

(1) To be within the scope of employment conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.
(2) In determining whether or not the conduct, although'not authorized, is nevertheless so similar or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered:
(a) whether or not the act is one commonly done by such servants;
(b) the time, place and purpose of the act;
(c) the previous relation's between the master and servant;
* * * # * *
(f) whether or not the master has reason to expect that such an act will be done;
(g) the similarity in quality of the act done to the act authorized;
(h) whether or not the instrumentality by which the harm is • done has been furnished by the master to the servant;
(i) the extent of departure from the normal method of accomplishing an authorized result; and
(j) whether or not the act is seriously criminal.

American Law Institute, Restatement (2d) of Agency § 229. . Accepting this section as setting forth the relevant principles, we think it clear that there was an evidentiary basis for finding that Mrs. DeCasenave was acting within the scope of her employment in taking the actions the jury found constituted the proximate cause of the plaintiffs’ purchases. Those actions included touting a stock, making recommendations, keeping customers informed of developments in a company whose securities thé customers were considering buying, and arranging the mechanics of a purchase- and-sale transaction. These are “acts commonly done” by brokers, within the meaning of § 229(2)(a); at the very least, they would be “simila[r] in quality” to acts brokers are routinely authorized to perform. Mrs. DeCasenave used the Walston offices regularly in arranging the transaction; and she used her position as the representative wh,o serviced McDonald’s and Lewis’s accounts to. recruit them as purchasers of this new company’s stock. Thus, to this extent, the “instrumentality by which the harm [was] done [was] furnished by the master to the servant”, within the meaning of § 229(2) (h).

Walston argues that Mrs. DeCasenave’ was acting beyond the scope of her employment. For example, Walston did not deal in unregistered securities. Moreover, Mrs. DeCasenave and the brokerage house did not perform their usual roles as brokers; that is, the transaction did not involve the broker’s placing an order through the house’s New York office, which was then executed by the central office. In this regard, they note that Walston never stood to receive, and never did receive, any commission or other financial benefit from the direct and essentially private exchange Mrs. DeCasenave arranged. In addition, Wal-ston points to Gaff’s testimony that he advised Mrs. DeCasenave against dealing in the stock, and to Lewis’s testimony that Gaff advised him to the same effect.

None of these superficially supportive bases for Walston’s argument precludes the conclusion that Mrs. De-Casenave’s actions were within the scope of her employment. That Walston did not deal in unregistered’ securities addresses only the question whether Mrs. DeCasenave’s conduct was authorized; as our discussion above and the quotation from the Restatement indicate, however, conduct may be within the scope of employment even if it is unauthorized, if it is sufficiently similar to authorized conduct. That the transactions did not involve the execution of an order through the brokerage house also does not necessarily mean that Mrs. DeCasenave’s acts were without the scope of her employment. Brokers may and do take many actions in the course of their dealings with customers that do not relate directly to transactions executed through the brokerage house; these actions are not for that reason necessarily beyond the scope of the brokers’ employment. That Walston did not receive any financial benefit from the transaction is not of controlling importance. If a particular act is authorized, or sufficiently similar to an authorized act, finding that act to be within the scope of employment does not require that the act have conferred any particular benefit, financial or otherwise, on the employer.

Finally, Gaff’s testimony that he advised Mrs. DeCasenave against continuing to hawk Allied Automation does not preclude a finding that Mrs. DeCasenave acted within the scope of her employment. In the first place, the precise wording of Gaff’s admonition makes it clear that his words were intended not as an instruction given in his official capacity, but rather as personal counsel to Mrs. DeCasenave. He told her that she should “stick to her own business and run stocks instead of trying to talk about pies in the sky all the time”, and that “[f]or every deal that you try to put together on an underwriting or a new issue of something like that, you might work for years before you get one deal”. It was to Jackie DeCasenave’s personal interest, not the interests of Walston & Co., that Gaff appealed. Second, Gaff, in spite of his position as manager of the office, did nothing beyond issuing this scarcely forbidding warning to Mrs. DeCasenave. Gaff’s advice to Lewis also fails to defeat the possibility that Mrs. DeCasenave was acting within the scope of her employment. That too was only investment advice: Gaff told Lewis there were too many listed stocks for him to be investing where there was a “margin of risk”. Such advice conveyed no meaning that Mrs. DeCasenave was acting outside the scope of her authority in promoting Allied Automation.

Thus we find that there was evidence to support the jury’s conclusion that Mrs. DeCasenave was acting within the scope of her employment. The district court’s grant of judgment n. o. v. must therefore be reversed.

Our holding makes it unnecessary for us to consider the contentions advanced by the plaintiffs that the evidence supported Walston’s liability on either of two other' theories. In addition, since our holding establishes Walston’s liability under federal law for the full amount of the plaintiffs’ loss, it is unnecessary for us to consider the second issue raised by the plaintiffs, that the evidence was sufficient to support a jury verdict against Walston . under Florida law.

The judgment in favor of the plaintiffs' against Mrs. DeCasenave is affirmed. The judgment in favor of Wal-ston & Company is reversed and the case is remanded to the district court to enter a judgment for the plaintiffs against Walston & Company in favor of the plaintiffs.

      . Originally the plaintiffs also alleged violations of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1970), and rule 10b-5 promulgated under that section, 17 C.F.R. § 240.10b-5 (1972). The trial judge directed verdicts against the plaintiffs on these counts of the complaint. The plaintiffs do not challenge the propriety of that action here.

      . The receipt issued by the partnership for the $15,000 it received was made out jointly to McDonald and William Johnston. The receipt did not in any way constitute evidence of stock ownership; the only evidence of that was the investment letter issued entirely in McDonald’s name.

      . Section 12(1) provides in full:
      Any person who—
      (1) offers or sells a security in violation of section 77e of this title [making it unlawful to use the mails or other facility of interstate commerce or transportation or communication to sell an unregistered security], shall be liable to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security.
      77 Ü.S.C. § 77i(l) (1970). This case was submitted to the jury both under § 12(1) and under § 12(2), 77 U.S.C. § 771(2) (1970). Section 771(2) provides a civil remedy against a person who sells or offers to sell a security by means of a prospectus or oral communication containing a misrepresentation of or omission to state a material fact. On appeal, however, both the plaintiffs and Mrs. DeCas-enave concentrated on the question of the sufficiency of the evidence to support liability under § 12(1). For this reason, our discussion is concerned exclusively with that question. Since we find that the evidence supported the verdict under a § 12(1) theory, it is unnecessary for us to consider whether it also could have supported a finding that she was liable under § 12(2).

      . See note 3 supra.

      . See note 2, supra.


author: SIMPSON, Circuit Judge:

text:
    Marcos GARCIA, Plaintiff-Appellant, v. The QUEEN, LTD., and Fidelity and Casualty Company of New York, et al., Defendants-Appellees.
    No. 73-2025
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 13, 1973.

      Thomas M. Carney, William M. Alper, Miami, Fla., for plaintiff-appellant.
    Frank A. Lane, Miami, Fla., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   SIMPSON, Circuit Judge:

We review a final judgment below denying relief to the plaintiff-appellant, Marcos Garcia, in his suit for damages against his employer, The Queen, Ltd., and his employer’s two insurers. The district court concluded, inter alia, that, as a matter of law, an insurance policy labelled as a workmen’s compensation policy issued by one insurer to the appellant’s employer did not provide coverage for damages where as here the relief sought was by a maritime remedy. For reasons which we explicate below, we reach the view that the insurance coverage under that policy was broader than determined under the district court’s theory of coverage. We reverse as to this issue.

THE FACTS

Garcia was employed as an able-bodied seaman by The Queen, Ltd., a Delaware corporation which had purchased the S/S QUEEN ELIZABETH (The Queen). It was planned to convert the ship into a hotel and restaurant. At the time that the appellant’s alleged injuries occurred, The Queen was lying at dockside in Port Everglades, Florida, pending completion of a permanent berth for her at that port. On December 17, 1969, appellant was engaged, pursuant to orders given by his superiors, in hoisting a steam generating machine from dockside to the deck of The Queen by means of lifeboat davits. In the course of this endeavor, the steam generating machine moved suddenly, apparently causing the plaintiff to fall and receive bodily injury.

THE TRIAL

Appellant filed suit in the court below against his employer, The Queen, Ltd., and the employer’s two insurers, Fidelity and Casualty Company of New York (Fidelity) and The United Kingdom Mutual Steamhip Assurance Association, Ltd (Bermuda). Damages were sought under the Jones Act, 46 U.S.C. Sec. 688, for unseaworthiness of the vessel, and for maintenance and cure. Fidelity was sued on the basis of a policy entitled “Workmen’s Compensation and Employer’s Liability Policy” issued by it to The Queen, Ltd. and in force at the time of appellant’s accident. The specific provision of the policy under which relief was sought, Part B, bound the insurer to pay:

“[A] 11 sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident * * * sustained . . . by any employee of the insured arising out of and in the course of his employment by the insured * *

Fidelity denied liability for appellant’s claim on grounds: (i) that the policy was a workmen’s compensation policy and was not designed or sold to cover maritime injuries to maritime employees, and (ii) that the appellant was not a seaman and therefore not entitled to proceed under the maritime theories advanced by him as a basis for his action.

As discovery and other pre-trial procedures progressed, counsel for both parties found themselves unable to agree whether Part B of the Fidelity workmen’s compensation policy afforded coverage where damages were sought under maritime theories of recovery. Accordingly, the trial judge ordered that “the issue of insurance coverage be tried before the issue of liability and damages.” For this purpose, plaintiff’s counsel waived his right, previously claimed, to trial by jury on the issue of insurance coverage and trial — supposedly limited to the one issue — was held before the district court sitting without a jury on December 4,1972.

At trial, orders and stipulations as to its limited nature notwithstanding, evidence was introduced concerning the ultimate question of Fidelity’s liability under the policy issued to The Queen, Ltd., and the district judge in his opinion entered findings of fact and conclusions of law concerning both coverage and liability. The judge concluded as a matter of law: (i) that Part B of the workmen’s compensation policy did not afford coverage for the appellant’s injuries; (ii) that The Queen was not a ship but a land structure; (iii) that The Queen was not in navigation at the time of the alleged injury; and (iv) that the appellant was not a seaman at the time of the alleged injury.

Before considering the trial court’s conclusions on insurance coverage, we must determine whether its departure from its self-imposed limits on the scope of the trial constituted an abuse of discretion on the part of the trial judge in violation of constitutional principles.

TRIAL BY JURY OR BY THE COURT?

Trial by jury is a right guaranteed to parties in suits at law by the Seventh Amendment to the Constitution. The guarantee is reiterated in the Federal Rules of Civil Procedure, Rule 38(a), which requires that “[t]he right of trial by jury . . . shall be preserved * * * inviolate.”

Plaintiff’s counsel in the instant ease, both in the original and amended complaints demanded the right to a jury trial on all issues triable of right by a jury. The issues determinative of liability, whether The Queen was in navigation at the time of the alleged injury, and the issue of damages were issues of fact properly for a jury to decide.’' The procedure below deprived the appellant of his right to a jury trial on the issues of liability and damages. In the circumstances of this case, the district judge abused his discretion in reaching the issues of liability apart from that of coverage under the insurance policy in question. Accordingly, we vacate the findings of fact and conclusions of law made by the district judge as to Fidelity’s liability to the appellant under the workmen’s compensation policy issued to appellant’s employer, The Queen, Ltd.

INSURANCE COVERAGE

We determine that as a matter of law Part B of the workmen’s compensation insurance policy issued by Fidelity to The Queen, Ltd., provided coverage for damages sought under the maritime theories of recovery upon which this suit is predicated: the Jones Act, unseaworthiness, and maintenance and cure. We are guided to this conclusion by several district court decisions in this circuit inv'olving similar policy provisions in similar contexts. Voisin v. Ocean Protein, Inc., E.D.La.1970, 321 F.Supp. 173; Brickley v. Offshore Shipyard, Inc., E.D.La.1967, 270 F.Supp. 985; Keys Engineering Co. v. Boston Insurance Co., S.D.Fla.1961, 192 F.Supp. 574. Brief discussion of the Brickley case will be helpful in indicating the reasons for our holding.

The question was squarely presented in Brickley, whether a maritime worker, suing under maritime theories might recover damages under Part B of a standard workmen’s compensation and employer’s liability policy. There, the plaintiff filed suit against his former employer, Offshore Shipyard, Inc., and Offshore’s insurer, Fidelity and Casualty Company of New York, the same insurer as in this case. The plaintiff sought damages for injuries sustained aboard a barge operated by Offshore. The plaintiff stated as grounds upon which he sought recovery: (i) the Jones Act, (ii) the warranty of seaworthiness, and (iii) the general maritime law of negligence. The plaintiff further stated that recovery was sought solely under a policy entitled “Workmen’s Compensation and Employer’s Liability Policy” issued by Fidelity and Casualty. Part B of the policy provided that the insurer was obligated:

“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident or disease * * * sustained * * * by any employee of the insured arising out of and in the course of his employment by the insured -X- * -X- »

270 F.Supp. at 987. In addition, the policy contained a provision which excluded from its coverage injury sustained by “ ‘a master or member of the crew of any vessel.’ ” Id.

Fidelity and Casualty argued that coverage under the policy was not afforded for suits brought under maritime theories of recovery. The basis for this argument was Fidelity and Casualty’s position that coverage under Part B was impliedly restricted “to accidents to employees and suits by them for damages where the employee sues on a theory grounded in his employee relationship with the insured . . .” Id. Fidelity argued that the suit having been brought under maritime theories not grounded in the employment relationship, coverage would not lie.

The court looked to the plain wording of the policy and rejected the attempt to read any such implied restriction into the policy. After reciting the terms of Part B, the court stated:

“Coverage under that wording encompasses any accident sustained by an employee of the insured which arose out of and in the course of his employment. The legal theory under which such an employee might institute suit is totally irrelevant under the terms of the policy. The only requirement for coverage is that the injury be sustained by the employee during his employment. We cannot read the terms of the policy to imply that the legal theory under which a suit may be brought by an employee must “arise out of” the employment relationship.”

Noting that Fidelity was arguing the existence of an ambiguity in the policy when in fact there was none, the court ruled first that the construction of a policy of insurance was a matter of law for the court and second that, “were there any real and substantial ambiguity in . . . the policy, that ambiguity would, as a matter of law, have to be construed against the insurance company” under State Mutual Life Assurance Co. v. Dorsey, 5 Cir. 1956, 357 F.2d 600. On this basis the court denied Fidelity’s motion for summary judgment on the question of insurance coverage.I

We approve and adopt the approach taken by the court in Brickley. It is black letter Florida law that:

“If the language of the policy is plain and unambiguous, the words must be given their commonly accepted meaning. When the meaning of the policy provision is clear and free from doubt, it will be enforced as written and resort will not be made to extrinsic evidence for the purpose of arriving at a proper construction of the language used.”

State Liquor Stores v. United Fire Insurance Co., Fla.App.1971, 243 So.2d 228, 230. See Jacksonville Adjustment Bureau v. National Ben Franklin Fire Insurance Co., S.D.Fla.1924, 1 F.2d 800. In the instant case, the language of the insurance policy could scarcely be more definite. The policy states:

“The company . . . agrees * * * to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * sustained ... by any employee of the insured arising out of and in the course of his employment by the insured * *

Here we have (i) an employee of the insured, (ii) who allegedly sustained bodily injuries, (iii) in the course of his employment by the insured. The language of the policy unmistakably obligated the insurer to pay whatever damages might be awarded if the employer is found to be liable. We so hold.

Because the ultimate questions of liability and damages must still be determined, we remand this case to the district court for further proceedings, including a trial by jury on the issues of liability and damages under the insurance policy issued by Fidelity to The Queen, Ltd., unless counsel withdraws the request therefor.

Vacated in part, reversed in part, and remanded to the District Court for further proceedings.

      . Service of process on the latter company was quashed upon the grounds that it was not doing business in the State of Florida. The suit proceeded thereafter against the two remaining defendants, The Queen. Ltd. and Fidelity. Bermuda is not involved in this appeal.

      . It is interesting to note that Fidelity had initiated voluntary compensation payments to appellant after his injury, but later discontinued those payments on the ground that the appellant was a seaman and therefore not covered under the policy. However, at the time payments were discontinued, Fidelity allegedly thought that the appellant was employed by the Cunard Lines and not by its insured, The Queen, Ltd. The basis for this assumption is unclear from the record.

      . In his motion for a preliminary pre-trial conference, plaintiff’s counsel indicated the existence of this problem. (R 224). At a later date, in a reply memorandum in support of his motion for partial summary judgment, plaintiff’s counsel urged that the threshold question to be decided in the case was :
      Whether Coverage B — Employer’s Liability is applicable to any judgment obtained in this cause . . . . As counsel have advised the Court, there is every possibility that once this insurance problem is determined, this claim can be settled. In fact, serious settlement discussions were temporarily suspended to permit this issue to be judicially determined.

      . In point of fact, the construction of the insurance policy was strictly a matter of law for the court to decide and not a matter on which the plaintiff had a right to a jury trial. United Services Automobile Ass’n v. Porras, Fla.App.1968, 214 So.2d 749.

      . The gradual broadening of the inquiry beyond the bounds of the question of coverage is easily documented. In his motion for summary judgment, appellant’s counsel addressed himself solely to the question of whether coverage obtained under Part B of the workmen’s compensation policy where recovery was sought on the basis of maritime remedies. The Queen, Ltd.’s counsel by his reply memorandum, nonetheless moved beyond the question of mere coverage and addressed himself to issues bearing entirely upon the question of ultimate liability, e. g. whether the appellant was a seaman and whether The Queen was a vessel (see note 6, infra.) in navigation. By his reply memorandum, Garcia’s counsel responded on the issue of appellant’s status as .seaman-non-seaman, but still focused his attention to the question of insurance coverage: “The parties . . . are seeking a determination whether Coverage B — Employers’ Liability is applicable to any judgment obtained in this cause.”
      In appellant’s final memorandum prior to trial, the question of coverage appears in the main to have become submerged in the question of ultimate liability. The memorandum states: “The ultimate issue which divides the parties is whether The Queen Elizabeth was a vessel . . . (R 385). Plaintiff’s counsel thereupon cited authority for the proposition that the boat was a vessel. (R 385-88). The reply memorandum of The Queen, Ltd.’s counsel concerned itself entirely with The Queen’s status as vessel or land structure.
      At trial, both sides introduced testimony and evidence going to the question of ultimate liability. This was in spite of the statement by appellant’s counsel at the opening to the trial that:
      By agreement of counsel and the approval of the Court, what we are doing here today is trying separately, non-jury, waiving the jury for this issue, the question of insurance coverage in the ease Garcia v. The Queen, Ltd.
      We conclude that both counsel and the court below were undecided regarding the issues to be tried, notwithstanding the force of statements such as the one cited above.

      . These findings were determinative of the question of liability given the maritime theories under which the appellant was proceeding in the court below. Recovery under (i) the Jones Act, (ii) for unseaworthiness, or (iii) for maintenance and cure, depended in each instance upon the appellant’s demonstrating that he was a seaman at the time of the alleged injury. In order to prove seaman status he was required to prove (i) that the vessel aboard which the alleged injury occurred was in navigation at the time that the alleged injury occurred; (ii) that the appellant was aboard the vessel primarily as an aid to navigation; and (iii) that his connection with the vessel was more or less permanent. McKie v. Diamond Marine Co., 5 Cir. 1953, 204 F.2d 132, 136. Of course, failing proof of status as a seaman, appellant could recover for unseaworthiness upon a showing that he was a Yaka-Sieracki seaman, a harbor worker performing tasks aboard ship normally performed by seamen under the doctrine of Reed v. S/S YAKA, 1963, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed. 2d 448, and Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. See Clark v. Symonette Shipyards, Ltd., 5 Cir. 1964, 330 F.2d 554.
      Under the Yaka approach, Garcia could recover only provided that the vessel aboard which he was injured was in navigation at the time of the alleged injury. Roper v. United States, 1961, 368 U.S. 20, 82 S.Ct. 5, 7 L.Ed.2d 1; West v. United States, 1959, 361 U.S. 118, 122, 80 S.Ct. 189, 192, 4 L. Ed.2d 161; Drake v. E. I. DuPont de Nemours & Co., 5 Cir. 1970, 432 F.2d 276; Bodden v. Coordinated Caribbean Transport Inc., 5 Cir. 1966, 369 F.2d 273. Recent amendments to the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U. S.C. Sec. 901 et seq., have foreclosed suits by harbor workers against shipowners based on the theory of unseaworthiness. Pub.L. 92-576, 92d Cong. 2d Sess., 86 Stat. 1251. Under the amendments, harbor workers are now allowed to sue for damages from shipowners only on grounds of negligence.

      . This Court has held that the question whether an individual plaintiff is a seaman is a question of fact for the jury to decide. McKie v. Diamond Marine Co., 5 Cir. 1953, 204 F.2d 132. Since determination of seaman status involves a determination whether the vessel aboard which the individual was injured was in navigation at the time of the injury, Id., this latter question is also one for the jury to decide.
      Likewise, this Court has held that the question of damages is properly a question for the jury to decide. Phoenix Indemnity Co. v. Givens, 5 Cir. 1959, 263 F.2d 858, 863.

      . See, e. g., Beacon Theatres, Inc. v. Westover, 1959, 359 U.S. 500, 79 S.Ct. 948, 3 L. Ed.2d 988. In Beacon Theatres, the Supreme Court addressed itself to the question whether a trial judge, under the Federal Rules of Civil Procedure, when faced with suits in law and equity involving common questions of fact, and where one party had demanded a jury trial on questions of fact in the suit at law, had discretion to try the equitable claim before the legal claim — and by so doing, invite a situation in which the judgment in the equitable suit, either by res judicata or collateral estoppel, would deprive the party demanding a jury trial-on the legal issues to his right to such a trial. The Court decided that the trial judge had a “very narrowly limited” discretion in this area, and said further that:
      “only under the most imperative circumstances, circumstances which in view of the flexible procedures of the Federal Rules we cannot now anticipate, can the right to jury trial of legal issues be lost through prior determination of equitable claims.” Id. at 501-511, 79 S.Ct. at 957, 3 L.Ed.2d at 997-998.
      Under the teachings of Beacon Theatres, we think the effect of the trial judge’s considering and ruling upon the question of liability in a trial by stipulation and order limited to the single issue of insurance coverage, was to deprive appellant of his right to a jury trial on issues of fact.

      . Findings of fact of the district judge numbered 6 & 7.

      . Conclusions of law of the district judge numbered 2 & 3.

      . The Brickley court noted however that Fidelity might ultimately prevail on the question of insurance coverage if it could show that the plaintiff had been a “master or member of the crew of any vessel” at the time of his alleged injury; for such a showing would have placed the plaintiff within the ambit of the exclusionary provision of the policy and without the scope of coverage. 270 F.Supp. at 987.