text:
    UNITED STATES of America, Appellee, v. Elaine BRYANT, Appellant.
    No. 674, Docket 72-2294.
    United States Court of 'Appeals, Second Circuit.
    Argued March 7, 1973.
    Decided June 4, 1973.

      Phylis Skloot Bamberger, New York City (Robert Kasanof, The Legal Aid Society, New York City, on the brief), for appellant.
    Bernard J. Fried, Brooklyn, N. Y. (Robert A. Morse, U. S. Atty., and L. Kevin Sheridan, Asst. U. S. Atty., Brooklyn, N. Y., on the brief), for appellee.
    Before LUMBARD and TIMBERS, Circuit Judges, and WYZANSKI, District Judge.

       Senior District Judge of the District of Massachusetts, sitting by designation.

   TIMBERS, Circuit Judge:

Appellant Elaine Bryant appeals from a judgment of conviction entered upon a jury verdict returned July 18, 1972 after a five day trial before John R. Bartels, District Judge, in the Eastern District of New York, finding appellant guilty on one count of conspiracy to import cocaine into the United States, in violation of 21 U.S.C. § 952(a) (1970).

The chief issue on appeal is whether the trial judge committed reversible error in allowing in evidence a certain tape recording and a transcript of the tape before first examining the tape for audibility and the transcript for accuracy. A subordinate claim of error, raised for the first time on appeal, asserts a violation of appellant’s Fifth Amendment right to remain silent.

We affirm.

I.

On February 10, 1972, one Alberto McKenzie arrived at John F. Kennedy International Airport on a flight from the Republic of Panama. During a routine customs inspection, it was discovered that he was carrying in his coat three bags of cocaine weighing a total of about four pounds.

According to the evidence developed during the government’s direct case, McKenzie, a Panamanian citizen, was transporting cocaine for a man who called himself Surcidor Many. McKenzie and Many had become acquainted at a bar in Colon, Panama. After several meetings, Many asked McKenzie if he wanted to earn some money by taking cocaine to the United States. McKenzie accepted the offer. He was given money for an airline ticket, an extra $100 for expenses, three packages of cocaine, and a gold ring. He was instructed to deliver the cocaine and the ring to a person in New York City named “Elaine” who “lives with Beverly”. McKenzie was given Elaine’s telephone number and was told to call her upon arrival. He was to be paid $1500 at the time of delivery of the cocaine. He was told to tell customs inspectors that while he was in the United States he would be staying with a person named “Sisto Martinez”.

After his arrest, McKenzie agreed to cooperate with customs agents by executing the plans for delivery of the cocaine. From the customs office, he called the telephone number given to him by Many and spoke to a person who identified herself as Elaine. She gave him her address and told him to come right over. The entire telephone conversation between McKenzie and Elaine was monitored and taped with the consent of McKenzie. Later the tape was transcribed. Both the tape and transcript were admitted without objection at appellant’s trial. No claim of error is raised on appeal regarding the admissibility of this tape and transcript.

McKenzie was provided with three simulated packages containing flour and a small amount of cocaine. He was outfitted with a Kell transmitter (a bugging device). Accompanied by customs agents, he proceeded to Elaine’s address which had been given to him over the telephone. The agents remained outside the apartment in the adjacent hallway. McKenzie was greeted by appellant to-whom he delivered the cocaine and the ring. When McKenzie requested payment, appellant told him that she would have to call “Sisto” about it. McKenzie appeared to be in a hurry; so appellant gave him $500 and told him to come back the next day for the other $1000. The entire conversation between McKenzie and appellant was monitored and recorded by an agent stationed in the hallway. As with the earlier wiretap recording, the customs agents made a transcript of this latter recording. Both the tape and transcript of this conversation were admitted as evidence at appellant’s trial. Appellant does challenge the admissibility of this tape and transcript.

At about 11:30 P.M. on February 10, immediately after this conversation at appellant’s apartment, the agents entered the apartment. They arrested appellant and one Beverly Davis who also was in the apartment at the time. Appellant was advised of her constitutional rights by Agent Keller, one of the arresting officers. She declined to make a statement. She and Davis were taken to the customs office at 201 Varick Street for processing.

At approximately 12:30 A.M. on February 11, appellant again was advised of her rights, this time by Agent Sessa, another of the arresting officers. She expressly waived her rights and made an oral statement to Agent Sessa. Appellant stated that she knew McKenzie, whom she had told to come to her apartment when he called her, and that she had given him $500, telling him that “tomorrow I would give him the other $1000.00.” She stated that McKenzie had brought with him three packages and a gold ring with the initials “E.B.” When asked by Agent Sessa what was in the packages, she answered “cocaine”. When asked who was to pick up the packages, she declined to answer. At that point the interview was terminated by Agent Sessa. The processing and interviewing was completed at about 2:00 A.M. Appellant was permitted to rest for the remainder of the night.

At about 10:00 A.M. the next morning, February 11, appellant made a second statement in the office of Assistant United States Attorney Sheerin. Dur-. ing this interview appellant answered the question she previously had refused to answer. She stated that Jose Cisco Martinelli called her on February 8 to tell her to anticipate McKenzie’s arrival with the packages on February 10. She also stated that Martinelli told her that he would pick up the packages sometime after February 11.

At trial, appellant sought to defend herself by testifying in substance that she was not aware that she was participating in an unlawful conspiracy. She testified that she had dated a man named Cisco Martinelli; that, while Martinelli was visiting in Panama, they communicated several times by telephone; that the day before her arrest, Martinelli had called her, told her that a friend named Albert was coming to New York, and asked that she lend Albert $500; that Martinelli had said that his friend would have a ring for her and a package which Martinelli wanted her to hold until Martinelli’s return to New York. She further testified that Albert had called, had come to her apartment, and had asked for $1500 rather than the expected $500; and that, upon being surprised by this excessive request, she offered to call Cisco but, since Albert wanted to join his friends, he took $500. Finally, appellant denied making any statements to Agent Sessa. She testified that all she did was write down Martinelli’s name while she was in the United States Attorney’s office.

II.

Appellant’s first contention is that the trial judge improperly permitted the jury to listen to the tape recording of the conversation between McKenzie and herself at her apartment, and improperly permitted the jury to examine a transcript of that tape recording. In support of her contention, appellant makes three interrelated arguments: (1) that the judge failed to examine the tape and transcript and failed to rule on their admissibility out of the presence of the jury; (2) that the tape should have been excluded because it was substantially inaudible; and (3) that the transcript should have been excluded because it did not accurately reflect what was recorded on the tape.

At a pre-trial suppression hearing, the entire transcript of the Kell transmission of the conversation between McKenzie and appellant at the latter’s apartment was read aloud. The garbled or inaudible portions were identified. The tape was not played at this time. In fact, the first time the judge heard the tape was when it was played to the jury. The judge did not listen to the tape to determine its audibility or to ascertain the accuracy of the transcript before both were presented to the jury. This procedure was improper.

The correct procedure would have been for the judge to have had the tape played out of the presence of the jury so that he could have ruled on any objections before the jury heard the recording. Gorin v. United States, 313 F.2d 641, 651-62 (1 Cir. 1963), cert. denied, 379 U.S. 971 (1965); Todisco v. United States, 298 F.2d 208, 211 (9 Cir. 1961), cert. denied, 368 U.S. 989 (1962); Monroe v. United States, 234 F.2d 49, 55 (D.C.Cir. 1956), cert. denied, 352 U.S. 873 (1956). Such procedure would have enabled the judge to rule on all objections, including the competence of the tape, before it was played to the jury. And the transcript should have been compared against the tape before the transcript was given to the jury. See United States v. Lawson, 347 F.Supp. 144, 148 (E.D.Pa.1972).

Nevertheless, failure to follow this procedure does not require reversal. The indicated procedure is intended to avoid a mistrial or reversal resulting from an inaudible and prejudicial tape being played to the jury or an inaccurate transcript being submitted to them. Cf. United States v. Tortorello, 480 F.2d 764, 785, n. 18 (2 Cir. 1973). The absence of a preliminary examination by the judge is not in itself ground for reversal. We turn to a consideration of whether the tape and transcript in the instant case were inadmissible and prejudicial.

(A) Admissibility of the Tape

Appellant did not object to admission of the tape on the ground that it was inaudible. We have examined the record and find that at no point, either before or after the tape was played, did defense counsel object to the jury’s listening to the tape. Accordingly, appellant is not entitled as a matter of right to raise this issue on appeal. United States v. Wright, 466 F.2d 1256, 1259 (2 Cir. 1972). Despite appellant’s failure to object to the admission of the tape, however, we could notice the alleged error under Fed.R.Crim.P. 52(b). See United States v. Indiviglio, 352 F.2d 276 (2 Cir. 1965) (en banc), cert. denied, 383 U.S. 907 (1966). For the reasons stated below, we decline to do so.

Although we have not listened to the tape, we have read the transcript of the tape. Moreover, we have examined the record to observe the reactions of the judge and the jurors as they listened to and commented on the garbled portions of the tape. It is plain that some parts of the tape were totally inaudible. Other parts were so garbled that only some jurors were able to understand what was being said. But the mere fact of some inaudibility does not require exclusion :

“Unless the unintelligible portions are so substantial as to render the recording as a whole untrustworthy the recording is admissible, and the decision should be left to the sound discretion of the judge.’’ Monroe v. United States, supra, 234 F.2d at 55.

We cannot say that the parts of the tape which are clearly audible are without evidentiary value. Nor can we say that the inaudible parts are so substantial as to render the remainder more misleading than probative. While the chain of recorded conversation was weak in places, it was never completely broken. Moreover, the jury was fully apprised of the possible inaccuracy and unreliability of the tape through the testimony of witnesses and the arguments of counsel.

Whether a recording is sufficiently audible to be probative is a matter within the sound discretion of the trial judge. United States v. Weiser, 428 F.2d 932, 937 (2 Cir. 1969), cert. denied, 402 U.S. 949 (1971); United States v. Kaufer, 387 F.2d 17, 19 (2 Cir. 1967). Here the trial judge did not abuse his discretion in admitting the tape in evidence.

Finally, we note that the judge recognized that parts of the tape were difficult to understand and sought to alleviate the problem. He gave the jurors ample opportunity to comprehend what was being said. First, the tape was played through completely in the courtroom, but the jurors had trouble understanding it — chiefly because the only playback equipment available to the government was inadequate for a room as large as the courtroom. The judge then moved the jury and counsel to the jury room, a more confined area, to listen to the tape again. Finally, the jurors were permitted to listen to the tape individually through a set of headphones. We are satisfied that this procedure had the effect of enabling the jurors to understand most of the tape.

But even assuming that it was error to admit the tape, we are satisfied that, for the same reasons that the admission of the transcript of the tape was not prejudicial error, the admission of the tape itself could not have been so prejudicial as to call for reversal.

Under these circumstances, we hold that the failure of the trial judge to listen to the tape before it was played to the jury was not plain error sufficient to warrant reversal.

(B) Admissibility of the Transcript

Appellant did object to the admission of the transcript of the tape just referred to on the ground that the transcript was inaccurate. As early as the pre-trial suppression hearing, she requested a hearing to determine whether the transcript conformed with the tape. When the transcript was offered in evidence, appellant objected on the ground that it was self-serving and incomplete. This objection was renewed several times while the jury was comparing the tape with the transcript. The claim has been preserved for appeal.

The judge allowed the jury to use the transcript solely as an aid in understanding the tape. He allowed such use only after Agent Featherly, the agent who prepared the transcript, testified that the transcript was true and accurate. We have approved the procedure of admitting transcripts as an aid in listening to tape recordings where the transcripts were stipulated to be accurate. United States v. Koska, 443 F.2d 1167, 1169 (2 Cir.), cert. denied, 404 U. S. 852 (1971). See also Fountain v. United States, 384 F.2d 624, 632 (5 Cir. 1967), cert. denied sub nom. Marshall v. United States, 390 U.S. 1005 (1968); United States v. Hall, 342 F.2d 849, 853 (4 Cir.), cert. denied, 382 U.S. 812 (1965). In the instant ease, however, there was no stipulation as to the accuracy of the transcript. It appears that certain words and phrases were omitted from and added to the transcript. Under these circumstances, it was improper to admit the transcript in evidence.

While it would have been better to have excluded the inaccurate transcript entirely, we are satisfied that appellant was not prejudiced. The overall procedure which the judge followed was intended to prevent the jury from being misled by any errors in the transcript. The judge admitted the transcript subject to any corrections which might appear from playing the tapes. Each juror was instructed to strike out on his copy of the transcript any statements he personally did not hear when the tape was played. Thus, the jurors were warned that the transcript might be inaccurate and not to rely heavily upon its accuracy. Once the judge realized the problems with the playback equipment and the inaudibility of portions of the tape, his instructions went even further:

“It is the tape recorder that counts, not the transcript. The transcript was given to you in order that this might assist you in understanding the tape recorder.
* # *
I will ask you to just rely upon what you actually heard from the tape recorder.
If you haven’t heard it from the recorder, then you disregard the transcript, if the recorder does not conform.
As I said before, the transcript was given to you only to assist you in hearing the actual tape.”

We are satisfied that these repeated cautionary instructions eliminated whatever harmful effect that might otherwise have resulted from any discrepancies between the tape and the transcript. See United States v. Lawson, 347 F.Supp. 144, 149 (E.D.Pa.1972). We hold that the judge, through his careful and emphatic instructions, cured whatever initial error may have been committed in allowing the jury to see the inaccurate transcript.

Furthermore, the primary evidentiary function of the tape and transcript was to corroborate or dispute the testimony of McKenzie and appellant. The audible portions of the tape, as reflected in the transcript, were completely consistent with the testimony of McKenzie. And they also were consistent with the testimony of appellant. Indeed, the testimony of appellant and that of McKenzie differed only as to the portions that were not audible, and as to the meaning to be given to the audible words in the context of their meeting. We are left with the firm conviction that appellant was in no way prejudiced.

We hold that admission of the tape recording and the transcript, under the circumstances of this case, did not constitute reversible error.

III.

Appellant’s second contention is that the admission in evidence of statements she made during the interview with Assistant United States Attorney Sheerin on the morning of February 11 violated her Fifth Amendment privilege against self-incrimination. •

Appellant’s argument is as follows. She did agree during the early morning hours of February 11 to make a statement to Agent Sessa, after being informed of her rights. She then answered many questions. But when Agent Sessa asked her who was to pick up the packages of cocaine, she refused to answer. Agent Sessa then terminated the interview. Before the interview could be resumed, appellant argues, it was necessary for the government interviewer to repeat the warnings required by Miranda v. Arizona, 384 U.S. 436, 467-79 (1966), and to have reasonable grounds to believe that appellant voluntarily had changed her mind about not making any further statements. United States v. Collins, 462 F.2d 792 (2 Cir.) (en banc), cert, denied, 409 U.S. 988 (1972). The record does not indicate whether Sheerin, before he resumed the interview later that morning, gave new and adequate Miranda warnings or whether there was a reasonable basis for his inferring that appellant had changed her mind. Appellant contends that the admission in evidence of her statements to Sheerin constitutes reversible error.

The record discloses, however, that appellant did not claim in the district court that the admission of these statements violated her Fifth Amendment privilege. Prior to trial, a preliminary hearing was held to determine whether certain evidence should be suppressed. Included among the evidence challenged at the hearing were the oral statements made by appellant to Agent Sessa several hours after her arrest and those made to Assistant United States Attorney Sheerin later that morning. The grounds urged by appellant for suppression were that “the warnings that were read to [appellant] were unclear as to the right that she had at that present time to have an attorney present” and that there was an unreasonable delay in the arraignment of appellant. The judge denied the motion to suppress on these grounds and they have been abandoned on appeal.

At the pre-trial hearing, appellant did not claim that her statements made to Sheerin at the second interview should be suppressed on the ground that the interrogation had been terminated when she refused to answer Sessa’s last question. Nor was this claim asserted at any time during the trial. Appellant’s failure to raise this specific claim in the district court precludes her from raising it on appeal. United States v. Repetti, 364 F.2d 54 (2 Cir. 1966); United States v. Indiviglio, 352 F.2d 276, 279 (1965) (en banc), cert. denied, 383 U.S. 907 (1966).

In Indiviglio, we held that a specific objection, if overruled, will be preserved for appeal only to the extent of the grounds specified, and no further. 352 F.2d at 279. Here the objection in the district court to the admission of appellant’s statements to Sheerin clearly was not based on the claim that appellant might have indicated to Sessa that interrogation must cease. Consequently such claim is not available to appellant on appeal.

This case is a striking illustration of the wisdom of the rule that an objection must state accurately the basis for the claimed inadmissibility and must state such basis with a reasonable degree of specificity. See, e. g., United States v. Frascone, 299 F.2d 824, 827 (2 Cir.), cert. denied, 370 U.S. 910 (1962); United States v. Ladson, 294 F.2d 535, 538-40 (2 Cir. 1961), cert. denied, 369 U.S. 824 (1962). The reason for requiring that the specific ground for objection be made clear is to afford the trial judge an opportunity to remedy any claimed error and to afford the government an opportunity to come forward with evidence relative to the claim of admissibility, and thereby to avoid unnecessary further proceedings. The grounds for inadmissibility asserted in the district court here required the judge to determine only whether the pre-arraignment delay was reasonable and whether the initial warnings reasonably apprised appellant of her right to counsel. A precise objection on the grounds now asserted for the first time on appeal would have required a pre-trial hearing to be held on the circumstances surrounding the Sheerin interview. Alternatively, upon proper objection at trial, the judge might have conducted a voir dire into these circumstances before admitting in evidence appellant’s statements to Sheerin. Either inquiry might have satisfied the judge that the interview was entirely proper. On the other hand, a proper and timely objection might have resulted in suppression of the statements made by appellant to Sheerin. Appellant’s failure to make such objection left these matters unexplored. We hold that it is too late in the day for appellant to raise this claim for the first time on appeal.

Affirmed.

      . The one count indictment, returned February 17, 1972, charged appellant and defendant Alberto McKenzie with conspiring amongst themselves and with others to import into the United States from the Republic of Panama approximately four pounds of cocaine, a Schedule II controlled narcotic substance, in violation of 21 U.S.C. § 952(a) (1970). McKenzie originally pled not guilty. On July 12, 1972, after being advised of his rights, he withdrew his plea and entered a plea of guilty as charged. He testified as a government witness at appellant’s trial. On September 15, 1972, he was sentenced to a three year prison term and to a special parole term of three years.
      On November 10, 1972, appellant was sentenced to a five year prison term, pursuant to 18 U.S.C. § 4208(a) (2) (1970), and to a special parole term of three years. She has been enlarged on bail pending appeal.

      . The tape recording of the earlier telephone conversation between McKenzie and appellant was of a high quality with almost all the conversation coming through clearly. Its admission was not objected to by defense counsel. Similarly, the transcript of that tape also was admitted in evidence without objection.

      . The power to notice plain error is one that we exercise only where the fundamental fairness of the trial is affected. See, e. g., United States v. Haynes, 291 F.2d 166, 167 (2 Cir. 1961). Only if serious injustice was inflicted upon a defendant, or if he was convicted in a manner inconsistent with fairness and integrity of judicial proceedings, will we exercise our power under the plain error rule. See United States v. Atkinson, 297 U.S. 157, 160 (1936). Neither situation is present here.

      . We recognize that in a proper case it may be appropriate to admit a transcript to assist the jury in comprehending a tape recording. In such case, it would be advisable to follow the procedure approved in United States v. Carson, 464 F.2d 424, 436-37 (2 Cir.), cert. denied, 409 U.S. 949 (1972).


source: Caselaw Access Project

author: STEPHENSON, Circuit Judge.

license: Public Domain

text:
    CONTINENTAL GRAIN COMPANY, Appellee, v. FEGLES CONSTRUCTION COMPANY, INC., Appellant.
    No. 72-1572.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 10, 1973.
    Decided June 29, 1973.

      Appeal from the United States District Court for the District of Minnesota. Hon. Earl R. Larson, U. S. D. C. Judge.
    M. W. Gaughan, Minneapolis, Minn., for appellant.
    Mary Jeanne Coyne, Minneapolis, Minn., for appellee.
    Before ROSS and STEPHENSON, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       Of the Eastern District of Michigan, sitting by special designation.

   STEPHENSON, Circuit Judge.

This is a diversity case in which Fegles Construction Company, Inc. (Fegles) appeals from the denial by the trial court of its motion for a directed verdict. The jury, by special verdicts, held that Fegles was negligent in its design and construction of a grain drier for appellee Continental Grain Company (Continental) and assessed Fegles’ percentage of the total negligence to be 80%. Judgment in favor of Continental was entered in the sum of $56,060.39. Fegles contends (1) that the guarantee provision of the contract between the parties constitutes a complete defense to the action; (2) that the action is barred by two Minnesota state statutes of limitation on actions and (3) that there was insufficient evidence of negligence to warrant the trial court in submitting the case to the jury. For example, Fegles contends the damages which occurred were the result of settlement of the soil and fill for which it was not responsible under the contract. We are required, of course, to review the evidence in the light most favorable to the prevailing party who is entitled to the benefit of all inferences which could reasonably be drawn from the evidence. A. B. McMahan Company v. Amphenol Corporation, 443 F.2d 1072, 1076 (C.A.8 1971). We find the cause was properly submitted to the jury.

In 1959 Fegles contracted with Continental to design and construct a grain storage facility on Continental’s property adjacent to the Minnesota River at Savage, Minnesota. The soil at the proposed site was soft, loose and unable to support the weight of substantial structures, necessitating the use of piling for support of the facilities to be constructed. The structure in question, a grain drier, was to be erected on a concrete slab which overlapped the foundation of adjacent grain silos. The silos’ slab was supported by east-in-place concrete piling. The remainder of the drier’s slab, which rested upon 19 feet of fill, was to be supported by timber piling. All of Fegles’ work with respect to the grain drier was completed by November 17, 1960.

Shortly after completion Fegles discovered a gap developing between the edge of the drier’s foundation and the wall of the silos. By December 16, 1960, the gap had increased to 1 y2 inches with a % inch slope in the slab supporting the drier. In short, the edge of the slab supported by the wood piling was sinking. On February 27, 1961, Continental informed Fegles that the gap and slope had increased to 1%" and 1%" respectively; that the grain drier was “out of plumb” and should be “shimmed up” and that the slab’s elevations should be periodically checked. On April 12, 1961, Fegles reported that “All movement appears to have ceased at this time. No corrective action contemplated immediately. Continued checking will be carried on.” The next week Fegles informed Continental that all corrective work would be completed by the end of April. The grain drier was never shimmed but operated for eight years until January 3, 1969, when it toppled over to the ground. It was then discovered that the drier’s' slab had a slope of up to 7%”. Expert testimony was given to the effect that the drier collapsed because of (1) defective design in that one end of the slab was supported by concrete piling and the other by wood piling and (2) faulty construction of the foundation in that the wood piling had not originally been driven down to bedrock, so that later settling occurred at the end of the slab supported by the wood piling.

We think it clear that sufficient evidence of negligence existed to warrant submitting the case to the jury. The record would support findings that Fegles had a duty to use reasonable care in the design and construction of the drier, that Fegles breached such duty, and that such breach was a direct cause of the drier’s collapse and resulting damages.

Fegles further contends that the guarantee provision of the contract constitutes a complete defense to the action. In paragraph 19 of the contract, Fegles guaranteed “all materials and workmanship for a period of two years after acceptance of the work by [Continental] and shall replace any defective materials and/or workmanship that may develop in this period without expense to [Continental].” The trial court held that the contract did not preclude this action for negligence and instructed the jury to remove such evidence from its consideration. The trial court’s interpretation of applicable state law is entitled to great weight. Luke v. American Family Mutual Ins. Co., 476 F.2d 1015, at 1019 n. 6 (8th Cir., filed Nov. 2,1972).

Continental’s acceptance of the work became effective December 15, 1960. Therefore, if appellant’s contention is correct, Continental’s remedies against Fegles for faulty design and construction became foreclosed on December 15, 1962.

In Minnesota, parties to a construction contract may limit their liability for negligence by providing exclusive remedies within the agreement. Great Northern Oil Co. v. St. Paul Fire and Marine Ins. Co., 189 N.W.2d 404, 407 (Minn.1971); Independent. Consolidated School District No. 24 v. Carlstrom, 277 Minn. 117, 151 N.W.2d 784 (1967) and Independent School District No. 877 v. Loberg Plumbing & Heating Co., 266 Minn. 426, 123 N.W.2d 793 (1963). See, Clements Auto Company v. Service Bureau Corporation, 444 F.2d 169, 188 (C.A.8 1971). The contract, however, must clearly indicate the intent of the parties to make the stipulated remedies exclusive. Independent No. 24, supra, 151 N.W.2d at 786-787 (and cases cited at 787, n. 4). “The question of whether or not the remedy is exclusive turns upon the intention of the parties as revealed by the language of the contract as a whole; the specific provisions relating to the remedy; and all the facts of a particular case.” Independent No. 2U, supra at 787.

The object or purpose of the contract in question was the construction of a grain storage facility, including several large structures only one of which was the grain drier. The entire project took nearly 16 months to complete. With such a multitude of structures to be erected over a long period of time, the parties provided that Fegles would replace any defective materials or workmanship that might develop within two years following Continental’s acceptance of the work. We believe, however, that this provision falls far short of providing either expressly or by clear implication, an exclusive remedy for negligence in design and construction. Paragraph 19 does not limit Fegles’ liability for its negligence, but rather entitles Continental to demand corrective action to remedy defects without first showing fault by law attributable to Fegles. Furthermore, paragraph 5 of the contract states that payment by Continental does not operate to relieve Fegles “from its obligation or liability to replace any work if it be afterward discovered to have been improperly done . . . nor as a waiver . . . as to the durability of the work. Construing the contract in its entirety, we conclude that the contract does not evince a clear intent by the parties to provide an exclusive remedy for negligence in design and construction. Continental, therefore, is not prevented by the. terms of. the contract from maintaining this action.

Fegles also asserts that the action is barred by either of two Minnesota statutes of limitation on actions. Minn.Stat.Ann. § 541.05(1) and (4) provide for a 6 year limitation on actions upon a contract and for injured personal property. Since the case was submitted to the jury on the theory of negligence alone, § 541.05(1) is obviously inapplicable. We doubt the applicability of § 541.05(4) but would also reject it for the reasons set forth below in our discussion of the second limitation statute.

Minn.Stat.Ann. § 541.051 provides that no action to recover damages for any injury to property, real or personal, arising out of the defective condition of an improvement to real property, shall be brought against the person who designed or constructed the improvement more than two years after discovery thereof, nor in any event more than 10 years following the completion of the construction.

Construction of the grain drier was completed in November 1960. The drier toppled over on January 3, 1969, and this action was commenced on October 19, 1970. The action was brought within the 10 year period. However, Fegles charges that the defective condition was “discovered” by Continental within the meaning of the statute in late 1960 or early 1961, rendering the two-year limitation applicable. We disagree.

Generally, a statute of limitation begins to run at the time of the negligent act. In Minnesota, the harshness of this rule has been recognized and the statute does not begin to run until damage has resulted. It is not necessary for the final or ultimate damages to be known or predictable, however, the statute begins to run when some damage occurs which would entitle the victim to maintain a cause of action. See Dalton v. Dow Chemical Co., 158 N.W.2d 580 (Minn.1968). Section 541.051 also requires that the defective condition be first “discovered” before the two year period of limitation begins to run.

The record reveals that the slab settled at one end shortly after completion of the project and that Continental became aware of this movement. Fegles, however, in 1960 informed Continental that the slab had ceased to settle. The record also discloses that both parties had an expectancy of some settling of the fill below the slab upon which the grain drier was affixed. Under these circumstances, we believe Continental was justified in accepting the structure which worked properly up until it collapsed on January 3, 1969. At the time the project was completed, Continental acquired a structure which it cannot be reasonably charged with knowing of the defective condition. The grain drier operated perfectly in spite of the minimal slope in the slab. Certainly no damage had yet occurred. There is no evidence that Continental was aware of the further settling of the slab which occurred prior to the collapse of the drier in 1969. Therefore, we conclude that the two year limitation in the statute is not applicable to Continental's claim.

Affirmed.

      . Fegles also contends in its briefs that es a matter of law, it could not be held liable for the drier’s collapse because the “sole, independent intervening, superseding cause of the collapse was [Continental’s] lack of maintenance in failing to shim under the legs of the drier. Questions of causation, of course, are particularly for the jury to determine. And the jury was fully instructed in this respect. Here, however, appellant neither objected to the instructions on causation nor included the above contention as ground for its motion for judgment n. o. v. Appellant may not raise the contention for the first time on appeal and we could choose not to consider it. However, we note that the jury assessed 20% of total negligence causing the collapse and damage against Continental. Thus, undoubtedly the jury found that Continental was contributorily negligent in failing to shim the legs of the grain drier and assessed partial fault accordingly. We are satisfied that jury’s findings as to negligence are supported by the evidence.

      . On January 11, 1961, one month prior to its “discovery” of the gap between the slab and adjacent silo. Continental agreed to December 15, 1960 as the acceptance date under the terms of the contract.

      . In Independent No. 24, supra, the contract provided for a one-year period in which the contractor was to remedy any defects and also provided that “final payment” constitutes a waiver of all claims other than those arising from faulty work appearing after final payment.

      . The question of whether a fifty foot high structure on a concrete slab which rest upon concrete and wooden piling constitutes personal property under Minnesota law was neither raised in the briefs nor argued.

      . Section 541.051 provides, in pertinent part
      Limitation of action for damages based on services or construction to improve real property.
      “Subdivision 1. Except where fraud is involved, no action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of any improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision, or observation of construction or construction of such improvement to real property more than two years after discovery thereof, nor, in any event more than ten years after the completion of such construction.”

      . See also, Chrischilles v. Griswold, 260 Iowa 453, 150 N.W.2d 94, 99-101 (1967) (action against architect for negligent design) and Prosser, Law of Torts, § 30 (4th ed. 1971).

      . Adopting Fegles’ position, as was aptly pointed out at oral arguments, would flood the courts with suits by new home purchasers who have recently discovered a thin crack in their basement walls.


author: THORNBERRY, Circuit Judge:

text:
    NORTHSIDE IRON AND METAL COMPANY, INC., et al., Plaintiffs-Appellants, v. DOBSON AND JOHNSON, INC., and The Third National Bank, Defendants-Appellees.
    No. 73-1200

    Summary Calendar.

    United States. Court of Appeals, Fifth Circuit.
    July 5, 1973.

      R. Elliott Dunn, Jr., Gainesville, Ga., for plaintiffs-appellants.
    John T. Marshall, Gary N. Ackerman, Atlanta, Ga., for Third National Bank.
    Ronald L. Reid, William C. Humphreys, Jr., Atlanta, Ga., for Dobson and Johnson, Inc.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   THORNBERRY, Circuit Judge:

The district court dismissed, on authority of the bank venue statute, 12 U.S.C.A. § 94, plaintiffs’ action against defendant Third National Bank for fraud and deceit and denied plaintiffs’ motion to remand the case to a Georgia state court. On this appeal, plaintiffs contend that the bank venue statute violates the Due Process Clause of the Fifth Amendment, that in the alternative the defendant bank waived whatever immunity from suit in Georgia which the bank venue statute conferred on it, and that the case was improperly removed from a state court to the federal district court. Finding each contention to be without merit, we affirm.

Plaintiffs are eight subcontractors who were engaged to supply labor and materials for construction of a government warehouse in Duluth, Georgia. Defendant Third National Bank, a national bank established in Davidson County, Tennessee, was to provide construction financing for the warehouse. A dispute developed with regard to the financing arrangements, and the plaintiffs sued Third National and one other defendant for fraud and deceit in the Superior Court of Gwinnett County, Georgia. Defendants removed the case to the Federal District Court for the Northern District of Georgia. The district court granted Third National’s motion to dismiss as to it, denied plaintiffs’ motion to remand the case to state court, and certified its order as a final judgment under Fed.R.Civ.P. 54(b).

The basis of the dismissal was the bank venue statute, 12 U.S.C.A. § 94, which provides:

Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.

A national bank is “established” or “located” “only in the place where its principal office and place of business is as specified in its organization certificate.” Buffum v. Chase National Bank, 7th Cir. 1951, 192 F.2d 58, 60, cert. denied 342 U.S. 944, 72 S.Ct. 558, 96 L.Ed. 702 (1952). Even establishment of a branch office in another district will not suffice to “locate” the bank there for venue purposes. United States National Bank v. Hill, 9th Cir. 1970, 434 F.2d 1019. In essence the statute confers on national banks immunity from suit outside the district, territory, county, and city where it is located. Although the language of the statute is permissive — specifying that actions against national banks “may be had” in the district where it is located —it is now authoritatively settled that the effect of the statute is mandatory; national banks may be sued only on their home ground. Mercantile National Bank v. Langdeau, 1963, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523; Michigan National Bank v. Robertson, 1963, 372 U.S. 591, 83 S.Ct. 914, 9 L.Ed.2d 961.

It is undisputed that Third National is established in Tennessee and had a right under the bank venue statute to decline to be sued outside its district in Tennessee. The only question as to the applicability of the venue statute in this case is raised by appellants’ argument that the bank waived its § 94 immunity from suit in Georgia by committing fraudulent acts there. A bank may waive the protection of § 94, Michigan National Bank v. Robertson, supra, either by express declaration or by failing to assert the privilege when sued outside its district. First Charlotte National Bank v. Morgan, 1889, 131 U.S. 141, 10 S.Ct. 37, 33 L.Ed. 282. Further, a waiver may be inferred from conduct inconsistent with the assertion of the privilege. In order to constitute a waiver, the declaration or conduct relied on must demonstrate “a voluntary and intentional relinquishment or abandonment of the privilege.” Buffum v. Chase National Bank, supra, 192 F.2d at 61; Helco, Inc. v. First National City Bank, 3rd Cir. 1972, 470 F.2d 883. Merely doing business in a foreign district, even through a branch bank or a wholly owned subsidiary located there, does not constitute a waiver of the privilege. Helco, Inc. v. First National City Bank, supra-, Fisher v. First National Bank, S.D.Iowa 1972, 338 F.Supp. 525, appeal dismissed, 8th Cir. 1972, 466 F.2d 511. We think it clear that commission of a tort in a foreign district is also an insufficient basis for inferring waiver of the venue privilege.

Appellants attack the constitutionality of the bank venue statute under the Due Process Clause of the Fifth Amendment and the Equal Protection principle embodied in it arguing that the statute is patently arbitrary, unreasonable, and discriminatory. While the statute does confer a special benefit on national banks, we cannot agree that it lacks a rational basis. “National banks are federal instrumentalities and the power of Congress over them is extensive. . . . Unquestionably Congress had authority to prescribe the manner and circumstances under which the banks could sue or be sued in the courts.” Mercantile National Bank v. Langdeau, supra, 371 U.S. at 558, 83 S.Ct. at 522. In all cases which have dealt with the statute, including each of the ones cited above in this opinion, its constitutionality has never been doubted.

The historical purpose of the bank venue statute was to protect national banks against inconvenience and disruption in the conduct of their business which might result from removal of records to a foreign district for purposes of defending a lawsuit. First National Bank v. Morgan, supra, 132 U.S. at 145, 10 S.Ct. at 38. While it is undoubtedly true, as appellants point out, that technological advances in transportation and communication in the past century have reduced the potential hardship to a bank of defending a lawsuit in a foreign district, we cannot say that such distant litigation would not normally entail some inconvenience for the bank and disruption of its business, or that the special treatment accorded national banks has no rational basis. If the venue statute is to be amended or repealed, Congress is the body which must act to do so and the body to which appellants’ argument should be addressed.

Finally, appellants argue that the case was improperly removed to federal court and that the district court, instead of dismissing, should have remanded to the state court. We conclude, however, that the removal was proper under 28 U.S.C.A. § 1441(c), under which a whole case may be removed to federal court when it encompasses separate and independent claims, at least one of which would be removable if sued upon alone.

Section 1441(c) reads:
Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.

Professor Moore has illustrated the applicability of § 1441(c) to a multiclaim case in the following hypothetical:

[I]f A and B suffer personal injuries at the hands of X, and A and B join in an action because of a common question of law or fact, there is a joinder of two separate and independent claims. If the defendant could then remove the A-X litigation had A’s claim been sued upon alone, then the entire action is removable under § 1441(c), and the litigation involving the claims of both A and B goes into .the federal court.

IA Moore’s Federal Practice ¶ 0.162[1] at 621 (1965); see also id. ¶ 0.163[4-5] at 710. This hypothetical case is indistinguishable from the one at bar.

Each of the eight plaintiffs had a separate and independent claim against defendants, which could have been sued upon alone without joinder the other plaintiffs. There was diversity of citizenship between defendants on the one hand, who were citizens of Tennessee, and each of seven of the eight plaintiffs, who are citizens of Georgia or North Carolina. Of these seven plaintiffs, five have claims for compensatory damages which exceed $10,000. Thus, for each of these five claims diversity of citizenship supplies a federal jurisdictional basis, and each, considered separately, was therefore removable to the federal district court under 28 U.S.C.A. § 1441(a). Since some of the independent claims joined in the case were removable, the whole case was properly removable under § 1441(c).

The judgment of the district court is affirmed.


author: MOORE, Circuit Judge:

text:
    BEECH-NUT, INC., Plaintiff-Appellant, v. WARNER-LAMBERT COMPANY, Defendant-Appellee.
    No. 356, Docket 72-1940.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 22, 1973.
    Decided June 19, 1973.

      Leslie D. Taggart, New York City (Albert Robin, Frank J. Colucci, Watson, Leavenworth, Kelton & Taggart, Alfred J. Hedal, Harry O. Ansorge, New York City), for plaintiff-appellant.
    Stanton T. Lawrence, Jr., New York City (James G. Foley, Philip T. Shannon, George F. Long, III, Pennie, Edmonds, Morton, Taylor & Adams, New York City), for defendant-appellee.
    Before MOORE, HAYS and OAKES, Circuit Judges.
   MOORE, Circuit Judge:

This case involves a “struggle between corporate titans,” in their efforts to create and market cylindrically packaged confections having as their purpose the purification of breath. Breath, quite an essential element to human existence, has with the advent of the advertising profession, received notoriety (as might be expected) by having the unfortunate consequences of “bad” breath presented to the public in an in terrorem way. These titans, from motives possibly altruistic, but more probably financial, have sought to alleviate this unfortunate bodily affliction by manufacturing a product which will change breath from “bad” to “good”. The evils of bad breath have been dramatized to us as causing potential young lovers to find each other quite unacceptable until, by the use and alchemy of breath fresheners, the evil is cured and a happy courtship is commenced or renewed. All this is accomplished by dentifrices which “cleanse the breath while cleaning the teeth”, mouth sprays which achieve the same result, and candy confections.

The defendant-appellee, Warner-Lambert Company (defendant), for some time has sold cylindrically packaged breath mints known as “Clorets” and “Certs”. Beech-Nut, Inc., plaintiff-appellant (plaintiff), sells the well-known cylindrically packaged confection “Life Savers”. If “Life Savers” is excluded as a possible breath mint, defendant with its “Clorets” and “Certs” is said to account 'for over 98% of the breath mint market.

Believing that such a seeming monopoly should be corrected, plaintiff decided to enter the breath mint market and, also, to capitalize on its “Life Savers” popularity by adding some breath freshening ingredients to a confection labeled “BREATH SAVERS”. This product was in the high-impulse-low-price category and was to be sold from display racks usually found on counters of the vendors. Three geographically different market areas, covering nine states, were selected for test marketing, and large sums of money (estimated at over $1,-000,000) were expended by plaintiff on development, packaging, and promotion of its “BREATH SAVERS”. The results were good and plaintiff plans to proceed to market this product on a national básis.

Seeing its field about to be invaded, defendant was not slow in its counterattack. It brought forth, in a very short time, its own breath mint product which it labeled “BREATH PLEASERS”. Naturally, the invaded plaintiff took umbrage at the counter-sally, and commenced legal action. The suit, for trademark infringement and unfair competition, originated in Supreme Court, New York County, and a preliminary injunction was sought against defendant’s potential marketing of its “BREATH PLEASERS”. Before there was any hearing in Supreme Court, New York County, the suit was removed by defendant to Federal district court. There the suit came before the trial court upon plaintiff’s motions to remand to the State court and for a preliminary injunction. The court denied both motions. Plaintiff appeals to this Court from the order denying these motions, reported at 346 F.Supp. 547 (S.D.N.Y. 1972).

Although the trial court optimistically believed that the remand motion “If not quite abandoned, is no longer pressed with vigor”, this phase of the action has gathered renewed strength on appeal: well over one-half of plaintiff’s brief on appeal is devoted to the district court’s failure to remand.

Despite considerable doubt created by the language of the statute as to whether Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)) covers mere trademark infringement and unfair competition, the many cases decided since its enactment leave no doubt that, as construed by the courts, the claims advanced here may properly be brought under this section. Therefore, the claims set forth in the complaint could have been brought under Section 43(a) — hence, “removal was not improper.”

As to the denial of a preliminary injunction, we have previously stated that

[t]he award of a preliminary injunction is an extraordinary remedy, and will not be granted except upon a clear showing of probable success and possible irreparable injury. Clairol, Inc. v. The Gillette Co., 389 F.2d 264, 265 (2d Cir. 1968).

The district court found that there was

a substantial prospect that plaintiff will eventually fail rather than succeed in its claim of trademark infringement. 346 F.Supp. at 549.

In addition the court noted:

[TJaking everything together, the court concludes that plaintiff will probably lose the case at the end and should not have at this stage the extraordinary remedy it seeks. Id.

To determine whether Judge Frankel erred in this determination, we turn briefly to the merits of plaintiff’s case. The essential and primary element in any action based upon common law infringement, unfair competition, or violation of the Lanham Act is deception. Plaintiff bases its claim of deception primarily upon imitation of packaging. The names themselves “BREATH SAVERS” and “BREATH PLEASERS” are quite dissimilar except for “Breath”, as to which plaintiff possesses no exclusive rights. In the field of “breath fresheners”, there are already many candies or mints which claim to obtain this praiseworthy objective under such titles as “Breath Sweet”, “Breath Allure”, “Chlorophyll Breath Mints”, “Breath Buds”, “Breathlets”, “Breath Takers”, “Breath Beads” and “Breathgards”. Nor is the fact that the competing “Breath Savers” and “Breath Pleasers” are both wrapped in cylindrical packages, determinative — so are many candies.

The colors of the three flavors are quite similar, but there can be no monopoly on color.

In testing for likelihood of confusion in the impulse-purchaser market, a court must disregard minutia of differences and look to the overall appearance of the package as seen by a potential purchaser. Joseph Schlitz Brewing Co. v. Houston Ice & Brewing Co., 250 U.S. 28, 39 S.Ct. 401, 63 L.Ed. 822 (1919). Such a purchaser in all probability will not discuss before purchase the merits of the product with the sales clerk and inquire whether the mint with “MH2” will be more efficacious in solving his temporary problem than the mint produced under “Formula KG40”. He wants to eliminate bad breath as quickly as possible. On the counter he sees packages in display racks bearing the name “BREATH SAVERS” in large white letters against a blue or green background. Only upon close inspection will he see in small type the legend, “The Breath Mint From Life Savers”. However, once he knows the source, he will naturally associate this breath mint with the well-known' “Life Savers”. And if he finds the product pleasant and effective, he may become a regular customer. “BREATH PLEASERS” on the other hand will catch the potential purchaser’s eye with its large yellow lettering, also against a blue or green background. Even were defendant’s name known to the purchaser through the purchaser’s knowledge of defendant’s various pharmaceutical products, he would not know that the Warner-Lambert Company was the manufacturer of “BREATH PLEASERS” because its name does not appear on the package as displayed; nor is the buyer reminded that “BREATH PLEASERS” come from the same manufacturer as “Certs” or “Clorets”.

In short, we agree with Judge Frankel that the two products’ names and packages are sufficiently different so that a purchaser desirous of obtaining a product manufactured by “Life Savers” would not be deceived into believing that the “Life Savers” company was the source of “BREATH PLEASERS”. The product “BREATH PLEASERS” is in competition with “BREATH SAVERS”, but not in that type of unfair competition which would warrant the granting of a preliminary injunction ; if there is unfair competition here, plaintiff will have a full opportunity to develop this at trial.

The order of the District Court is affirmed.

      . 346 F.Supp. 547, 548 (S.D.N.Y.1972).

      . Id.

      . See Federal-Mogul-Bower Bearings, Inc. v. Azoff, 313 F.2d 405 (6th Cir. 1963) ; Sutton Cosmetics (P.R.) Inc. v. Lander Co., 455 F.2d 285 (2d Cir. 1972) ; 28 U.S.C. § 1338.

      . 346 F.Supp. at 548.


author: PER CURIAM:

text:
    Ottis Mayo JONES, Plaintiff-Appellant, v. Gertrude BALES et al., Defendants-Appellees.
    No. 72-3333.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 21, 1973.
    Ottis Mayo Jones, pro se.
    Gertrude Bales, pro se.
    Louis C. Woolf, Knoxville, Tenn., and John E. Dougherty, Atlanta, Ga., for Cheatham and Waggoner.
    John W. Stokes, Jr., U. S. Atty., and Beverly B. Bates, Asst. U. S. Atty., Atlanta, Ga., for Kirksey and Taylor.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

The judgment of the district court is affirmed on the basis of the reasons stated and authorities cited in the final order, Jones v. Bales, N.D.Ga.1972, 58 F.R.D. 453.


author: JAMES M. CARTER, Circuit Judge

text:
    Yale SIMONS, Plaintiff, v. UNITED STATES of America, Defendant.
    No. 71-2263.
    United States Court of Appeals, Ninth Circuit.
    July 19, 1973.
    A. Alexander Katz, Phoenix, Ariz. (argued), for plaintiff.
    Michael B. Scott (argued), William C. Smitherman, U. S. Atty., N. Warner Lee, Asst. U. S. Atty., Phoenix, Ariz., for defendant.
    Sheldon Mitchell, American Civil Liberties Union, Phoenix, Ariz., for amicus curiae.
    Before CARTER and HUFSTEDLER, Circuit Judges, and PREGERSON, District Judge.

       Honorable Harry Pregerson, United States District Judge, Central District of California, sitting by designation.

   OPINION

JAMES M. CARTER, Circuit Judge

(dissenting):

The majority has made the following order:

“The cause is remanded to the district court for the limited purpose of its answering the following question:

“In dismissing the ‘petition’ for lack of jurisdiction, did the court deem the ‘petition’ theretofore amended to state a claim under the Tucker Act (28 U.S.C. § 1346(a)(2)), as requested by petitioner-plaintiff in his memorandum filed March 17, 1971?”

The order is an exercise in futility. The majority is apparently intrigued by the prospect of a constitutional attack on the present statutes governing forfeiture of automobiles.

The appellant filed in the United States District Court a “petition” for a remission of forfeiture of an automobile. The United States was named as respondent. Appellant was not a party to thé security agreement on the car but was an accommodation endorser of a promissory note. Later, after paying off the note, he claimed to be subrogated to the title to the car.

The district court, on the Government’s motion, dismissed the action for lack of jurisdiction.

The petitioner in a reply memorandum in the district court had requested the pleading be amended to show reliance on the Tucker Act, 28 U.S.C. § 1346(a)(2). No motion, as such, was made to amend the “petition”. He urges here jurisdiction under that Act to support his claim.

The district court correctly dismissed for lack of jurisdiction. Unlike most forfeiture eases, the Government is not the plaintiff.

We need not determine now, or when the case comes back to us, whether the court relied upon the Tucker Act, 28 U.S.C. § 1346, for dismissal of the action. Under the law of this Circuit, even where the Government is the plaintiff in the action, obviating any problem of the right to sue the Government under the Tucker Act, our cases squarely hold that there is no jurisdiction in the court to grant the relief requested. United States v. Andrade (9 Cir. 1950), 181 F.2d 42; United States v. Bride (9th Cir. 1962), 308 F.2d 470, 474, and United States v. One 1967 Ford Mustang (9 Cir. 1972), 457 F.2d 931. See United States v. Wagner (9 Cir. 1970), 434 F.2d 627.

There are cases in other circuits which hold that the Tucker Act, 28 U.S.C. § 1346, provides jurisidction for an action against the Government to mitigate a forfeiture. United States v. One 1961 Red Chevrolet Impala Sedan (5 Cir. 1972), 457 F.2d 1353 (Tucker Act jurisdiction conceded by the Government); Menkarell v. Bureau of Narcotics (3 Cir. 1972), 463 F.2d 88, and Jaekel v. United States (S.D.N.Y.1969), 304 F.Supp. 993. We can find none in the Ninth Circuit.

Even if the district court, in answer to the question posed to it in the order, states that it deemed the petition amended to state a claim under the Tucker Act, we would still have to affirm under the authorities above, or take the case in banc to overrule them.

This is the poorest possible case for an in banc hearing. The petition was one for remission of forfeiture in the form ordinarily filed with the proper administrative agency. Contrary to Rule 11, Fed. Rules of Civil Procedure, neither the “petition” nor the “amended petition” was signed by an attorney. No motion, as such, was made to amend.

There is a serious question as to petitioner’s standing to contest the forfeiture. He was not a party to the security document under which the car was financed. He was only a guarantor of a promissory note. Petitioner complains of lack of notice of the forfeiture proceedings. The Government should not be required to make a title search to ascertain whether someone, not a party to a security agreement on a car under forfeiture proceedings, should receive notice of those proceedings.

In United States v. One 1967 Ford Mustang, supra, Judge Ely rejected a constitutional attack on forfeiture procedures and after citing cases stated, “We are not convinced that we should undertake to breach or hurdle the foregoing wall of authority. Nor, we think, can we override the authority which Congress has delegated to the Attorney General in respect to remission proceedings in cases like these.” 457 F.2d at 932.

The judgment should be affirmed and the case put to rest.