author: FIELD, Circuit Judge:

text:
    Ethel L. RIDGELY, Administratrix of the Estate of Susanna Hape, Appellee, v. SECRETARY OF the DEPARTMENT OF HEALTH, EDUCATION & WELFARE OF the UNITED STATES of America, Appellant.
    No. 72-2181.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 8, 1973.
    Decided April 3, 1973.
    Robert E. Kopp, Atty. U. S. Department of Justice (Harlington Wood, Jr., Asst. Atty. Gen., George Beall, U. S. Atty., Walter H. Fleischer and Stanton R. Koppel, Attys., U. S. Department of Justice, on brief), for appellant.
    Robert Barker Harrison, III, Baltimore, Md. (George W. White, Jr., and Buckmaster, White, Mindel & Clarke, Baltimore, Md., on brief), for appellee.
    Before CRAVEN, FIELD and WIDENER, Circuit Judges.
   FIELD, Circuit Judge:

The Secretary of Health, Education and Welfare appeals from an order of the district court which ruled that Mrs. Ethel L. Ridgely, Administratrix of her mother’s estate, was entitled to judicial review of a decision of the Social Security Administration Appeals Council and, additionally, held that the hearing examiner’s findings were not supported by substantial evidence.

The decedent, Mrs. Hape, was hospitalized for treatment of a broken hip at Baltimore County General Hospital from March 15, 1970, until April 1, 1970. On April 1 she was transferred to Foxleigh Nursing Center, an extended care facility, where she remained until September 17, 1970, when she was returned to the hospital and died a few days later. The Social Security Administration granted coverage through June 10, 1970, but denied payment for the remaining twenty-nine days to July 9,1970.®

Mrs. Ridgely sought $497.20 in hospital insurance benefits under the Medicare program which was disallowed by the hearing examiner upon a determination that the treatment afforded Mrs. Hape was not skilled nursing care but only custodial in nature, which is excluded from coverage. The Appeals Council affirmed the hearing examiner’s opinion which became the final decision of the Secretary.

Mrs. Ridgely filed a complaint in the district court seeking judicial review of the adverse administrative decision under 42 U.S.C. § 1395ff(b). The Secretary moved the court to dismiss the ease upon the ground that judicial review under the Act is limited to cases in which the amount in controversy exceeds $1,000. Despite the deficiency in the jurisdictional amount, the district court concluded that judicial review was appropriate under the alternative jurisdictional provision of “entitlement” to benefits.

As of the date of this controversy Section 1395ff(b) provided:

“Any individual dissatisfied with any determination under subsection (a) of this section as to entitlement under part A or part B, or as to amount of benefits under part A where the matter in controversy is $100 or more, shall be entitled to a hearing thereon by the Secretary to the same extent as is provided in section 405(b) of this title, and, in the ease of a determination as to entitlement or as to amount of benefits where the amount in controversy is $1,000 or more, to judicial review of the Secretary’s final decision after such hearing as is provided in section 405(g) of this title.” (Emphasis supplied.)

The district court conceived the issue to be whether Mrs. Ridgely was entitled to the benefits rather than a dispute as to amount, and noted that the hearing examiner had also framed the issue in terms of entitlement and not a question of the amount which might be due. The district court relied on Cardno v. Finch, 311 F.Supp. 251 (E.D.La.1970), which in a case quite similar to this concluded that judicial review was available based on the “entitlement” provision of Section 1395ff(b). We agree with the district court and the opinion in Cardno that the reasonable construction of the statutory language limits the amount in controversy requirement only to judicial review of determinations as to the amount of benefits, and that determinations as to entitlement to benefits are properly subject to judicial review regardless of the amount.

Counsel for the Secretary has pointed out to us that the language of Section 1395ff(b) was changed by the Social Security Amendments of 1972, under which the term “entitlement” was eliminated and judicial review limited to the question of eligibility to receive benefits or cases where the amount in controversy was $1,000 or more. The purpose of the amendment as stated in the Senate floor- debate was to clarify the original intent of the law that “entitlement” was intended to mean eligibility for any benefits of medicare but not to decisions on a claim for payment for a given service. 118 Cong.Rec. 17048, 17049 (Oct. 5, 1972). Counsel suggests that this amendment and its legislative history confirms the Secretary’s position in the present controversy. It may well be that the amendment was designed to eliminate ambiguity in the statute as originally enacted, but in our opinion under the statutory language prior to the 1972 amendment judicial review of Mrs. Ridgely’s claim was appropriate.

With respect to the merits, the district court properly recognized that it could not try the case de novo and that its function was to apply the substantial evidence test to the Secretary’s findings.

A careful review of the record by the district court disclosed that the Secretary’s determination that Mrs. Hape needed only care of a custodial nature was based solely on the records of the extended care facility, and the district judge found that the hearing examiner had been unduly selective in his reliance upon only those portions of the facility’s records dealing with treatment of Mrs. Hape and disregarded other portions which indicated that her condition was such that more than custodial care was required.

In reaching this conclusion the district court held that the examiner should have considered every aspect of Mrs. Hape’s physical condition in making the determination rather than relying upon the treatments immediately required as the determinative factor. The court found support for this rationale in Sowell v. Richardson, 319 F.Supp. 689 (D.S.C.1970), where it was held that even if no treatment was required the condition of the patient might be so unstable or unsatisfactory as to require the extended services covered by the Medicare program. This determinative approach of Sowell has been followed in Reading v. Richardson, 339 F.Supp. 295 (E.D.Mo. 1972) and Brewerton v. Finch, 320 F.Supp. 68 (N.D.Miss.1970).

The district court further found that the hearing examiner attached little or no significance to the opinion of Dr. Greenstein, the doctor who sent Mrs. Hape to the extended care facility following her treatment in the hospital. In the course of this controversy, Dr. Greenstein wrote a letter of clarification to the Secretary stating that Mrs. Hape “did require the supervision of professional nurses and that she did specifically require professional nursing care.” The district court found nothing in the record to refute Dr. Greenstein’s opinion and observed that it should have been accorded substantial weight in determining whether Mrs. Hape required skilled nursing care in accordance with Brewer-ton v. Finch, supra. In Brewerton, the court held that where there was no evidence to the contrary the opinion of the attending physician of the patient should be given great weight, and that where the hearing examiner had disregarded the physician’s evaluation, the resultant decision by the Secretary was not supported by substantial evidence. The substantial weight to be accorded the opinion of the attending physician under such circumstances was also recognized in Reading v. Richardson, supra, where the court reviewed the legislative history of this phase of the Medicare program, particularly the report of the Senate Committee on Finance, 1965 U.S.Code Cong, and Adm.News, p. 1986, and stated “[t]he Committee thus made clear its intention that responsibility for determining whether a patient required skilled nursing care would rest primarily with the physician.” 339 F.Supp. at 301. Finally, the district court found nothing in the record to indicate any justifiable basis for the decision to change Mrs. Hape’s status from one which required skilled nursing care during the initial seventy-one days to mere custodial care during the last twenty-nine days of her period of coverage.

Upon consideration of the record, briefs and oral argument, we agree with the conclusion of the district judge that the Secretary’s decision was not supported by substantial evidence.

Affirmed.

      . Ridgely v. Secretary of Dept. of Health, Ed. & Welf, 345 F.Supp. 983 (D.Md.1972).

      . 42 U.S.C. § 1395d(a) (2) provides for payments for extended care services up to 100 days during any “spell of illness.”

      . Custodial care is excluded from coverage under 42 U.S.C. § 1395y(a)(9), but the term is not defined in the Act. Sowell v. Richardson, 319 F.Supp. 689 (D.S.C. 1970) interpreted custodial care as any treatment which need not be provided in an institutional setting by trained and skilled professional personnel.

      . Act of Oct. 30, 1972, Pub.L.No.92-603, Title II § 2990(a), 86 Stat. 1464.

      . Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389 at 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Thomas Carlton BLECKLEY, Defendant-Appellant.
    No. 72-3362
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 10, 1973.
    Rehearing Denied April 30, 1973.
    C. Frank Strickland, Jr., Gainesville, Ga., for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., Robert L. Smith, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

This is an appeal from a judgment of conviction entered on a jury verdict that Bleckley wilfully and by means and use of a dangerous weapon, a 30-30 rifle, forcibly assaulted a United States Deputy Game Warden who was engaged in the performance of his official duties, in violation of 18 U.S.C.A. § 111.

Bleckley’s sole point on appeal is that the Government failed to prove his sanity beyond a reasonable doubt and that he was entitled to a directed verdict of acquittal.

Bleckley’s defense of insanity at the time of the offense was properly submitted to the jury on conflicting evidence under a correct charge conforming to the standards of Blake v. United States, 5 Cir. 1969, 407 F.2d 908.

“As we said in Blake ‘the evidence could go either way.’ Here the jury found that it went against the defendant. The jury need not be bound by defendant’s expert testimony, especially since there are ‘material variations between the experts themselves * * *.’ Mims v. United States, 5 Cir., 1967, 375 F.2d 135, 143. It was for the jury, not the Court.” United States v. O’Neal, 5 Cir. 1970, 431 F.2d 695, cert. denied, 401 U.S. 917, 91 S.Ct. 898, 27 L.Ed.2d 818.

Affirmed.


author: PER CURIAM.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellant, v. SCENIC SPORTSWEAR, Respondent-Appellee.
    No. 72-1735.
    United States Court of Appeals, Sixth Circuit.
    March 22, 1973.
    Walter C. Phillips, Director Region 10, N. L. R. B., Atlanta, Ga., Michael F. Messitte, N. L. R. B., Marcel MalletPrevost, Asst. General Counsel, N. L. R. B., Washington, D. C., on brief, for petitioner-appellant.
    Alfred W. Yadnais, Chattanooga, Tenn., William P. Hutcheson, Humphreys, Hutcheson, Moseley & Clements, Chattanooga, Tenn., on brief; Richard Adelman, Battle, Fowler, Stokes & Kheel, New York City, of counsel, for respondent-appellee.
    Before McCREE and KENT, Circuit Judges, and McALLISTER, Senior Circuit Judge.
   PER CURIAM.

This is a petition by the National Labor Relations Board for enforcement of its order dated April 21, 1972 and reported at 196 N.L.R.B. 72.

The complaint alleged “ . . . that the respondent violated Section 8(a)(1) when on June 29, [1971] it announced and granted wage increases and three paid holidays to its employees for the purpose of thwarting the Union’s organizational campaign and that respondent further violated Section 8(a)(1) when on July 20, [1971] it engaged in surveillance of its employees’ union activities.”

The Trial Examiner exonerated respondent on the wage increase charge, but, with respect to the surveillance allegation, he found that five female employees from respondent’s Chattanooga plant were on their 30 minute lunch break and sitting on the church steps across the street from the plant listening to a union organizer when Mr. Romita, the assistant to the president, walked up and said he was there "to see that you don’t tell these girls a bunch of lies.” Romita then intimated that this union had caused the closing of the two factories where he had previously been employed. From these and other facts, the Trial Examiner found that “[w]hether or not properly characterized as ‘surveillance’, Romita’s conduct which was designed to, and had the effect of, disrupting and interfering with Allen’s [an organizer for the International Ladies’ Garment Workers’ Union] attempt to meet with the employees and freely discuss with them union representation constituted, I find, unlawful interference with the employees’ Section 7 rights and, as such, was violative of Section 8(a)(1) of the Act.” The Board issued a cease and desist order and required the posting of notices.

Upon review and consideration of the entire record, and having in mind the deference to be paid to the expertise of the Board, we hold that the weight of evidence supports the Board’s finding of an 8(a)(1) violation. We hold further that the Board’s order is appropriate to remedy the violations found to have occurred.

The respondent’s other major contention is that it was denied procedural due process because it was found guilty of an offense different from that charged in the complaint and that, since it had not been apprised of the unfair labor practice found, it was not afforded an opportunity to present evidence to refute it.

In 1938, the United States Supreme Court held that a slight variation between the findings- and the complaint does not violate due process so long as the complaint informs the respondent of the acts which constitute the charged unlawful behavior and respondent is given an opportunity to respond. NLRB v. Mackay Radio and Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381 (1938). This court has on previous occasions said that Board complaints need not meet the strict particularity in pleading required of indictments, declarations at law, or bills in equity. Consumers Power Co. v. NLRB, 113 F.2d 38 (6th Cir. 1940). Their principal function is to provide notice, NLRB v. Johnson, 322 F.2d 216 (6th Cir. 1963), cert. denied, 376 U.S. 951, 84 S.Ct. 968, 11 L.Ed.2d 971 (1964), and this function is met whenever the acts found can be “fairly comprehended in the language of the complaint.” Tex Tan Welhausen Co. v. NLRB, 419 F.2d 1265, 1270 (5th Cir. 1969), vacated and remanded, 397 U.S. 819, 90 S.Ct. 1516, 25 L.Ed.2d 805 (1970), on remand 434 F.2d 405 (5th Cir. 1970).

From an examination of the entire record and briefs, we hold that respondent was fully apprised by the complaint of the nature of the unlawful conduct found by the Board and was given ample opportunity to present evidence and argument before the Trial Examiner to refute the finding of interference with its employees’ Section 7 rights.

Judge KENT would deny enforcement. He views the record as not supporting the conclusion that Romita was interfering with the employees’ Section 7 rights because the charged unfair labor practice involved only a single occurrence and there was no evidence that the employees were engaged in organizational activity, had any desire to listen to the organizer, ask him questions, or even talk to him.

Enforcement granted.


author: BOREMAN, Senior Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Bobby Richard WHITE, Appellant.
    No. 72-1114.
    United States Court of Appeals, Fourth Circuit.
    Argued June 6, 1972.
    Decided March 20, 1973.

      Roy G. Hall, Jr., Winston-Salem, N. C. (Court-appointed counsel), for appellant.
    Bradley J. Cameron, Asst. U. S. Atty. (William L. Osteen, U. S. Atty., on brief), for appellee.
    Before BOREMAN, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges.
   BOREMAN, Senior Circuit Judge:

Bobby Richard White, tried by the court without a jury, appeals his conviction on an indictment which charged him with making a false report, willfully, maliciously, and with reckless disregard for the safety of human life, concerning an attempt to do an act which would be a crime prohibited by Title 18 U.S.C. § 32, in violation of 18 U.S.C. § 35(b). We affirm.

Shortly after midnight on the 17th of June, 1971, White entered a Piedmont Airlines jet which was parked for the night in the airport in Winston-Salem, North Carolina. He was carrying a cloth handbag. Confronting Captain Leon Fox, the only person aboard, White stated that the bag contained nitroglycerin and sulfuric acid and ordered Fox to fly him to Cuba, stating “If I drop this bag it will blow us to bits. I don’t give a damn.” Fox made preparations to comply with White’s command and the plane was actually refueled to capacity. At trial Fox testified that he was convinced White was serious because of the latter’s statement.

Fox advised White that he would need a crew to assist him and White permitted only one other person to come aboard, Warren Tadlock, vice-president of flight operations for Piedmont Airlines, who suspected that the bag contained nothing harmful because he had some information that White had handled the bag carelessly earlier in the evening. Tadlock was ordered to crawl forward on his hands and knees along the aisle to the co-pilot’s seat and, while he was doing so, White held the bag on his back. Tadlock seized the bag from White’s grasp when the latter’s attention was diverted by the unexpected arrival of a federal sky-marshal who then subdued White. The bag was subsequently found to contain nothing but personal effects.

White was sentenced to a five-year term of imprisonment but after a period of observation and study pursuant to 18 U.S.C. § 4208(b), he was resentenced to a term of four years.

On appeal, White presents two issues: (1) the indictment is fatally defective for failing to allege all the essential elements of the crime in that it fails to allege specifically the intent required to constitute a violation of § 32, and also in that it fails to cite the particular clause or paragraph of 18 U.S.C. § 32 claimed to have been violated by his alleged acts and conduct; (2) no crime has been committed because § 32 requires an intent to damage or destroy an aircraft and his threats were always conditional.

In support of its argument that the indictment is not defective, the prosecution relies on United States v. Chunn, 347 F.2d 717, 720 (4 Cir. 1965):

“ 'It is enough to sustain an indictment that the offense be described with sufficient clearness to show a violation of law, and to enable the accused to know the nature and cause of the accusation and to plead the judgment, if one be rendered, in bar of further prosecution for the same offense. . . .

Even prior to Chunn this court had approved the concept and practice of liberalized criminal pleadings so long as the indictment contains a concise and definite statement of the essential facts constituting the offense charged. Finn v. United States, 256 F.2d 304, 306 (4 Cir. 1958). See also Hagner v. United States, 285 U.S. 427, 431-433, 52 S.Ct. 417, 76 L.Ed. 861 (1932), and Rule 7(e) F.R.Crim.P.

Title 18 U.S.C. § 35(b) requires the combination of three elements to constitute a crime: (1) willfully and maliciously, or with reckless disregard for the safety of human life, imparting false information, (2) knowing such information to be false, (3) concerning an attempt being made or to be made to do an act which would be a violation of chapter 2 of Title 18 U.S.C. (i.e., here 18 U.S.C. § 32).

It is important to bear in mind that the substantive offense of which White stands convicted is the violation of § 35 (b) pertaining to the giving of false information and that White is not charged with a substantive violation of any of the provisions of 18 U.S.C. § 32. Therefore, with this caveat, we look to 18 U.S.C. § 32 to determine the essential elements of a crime thereunder.

The first paragraph of § 32 (see footnote 3) makes it a crime to willfully damage or destroy a civil aircraft used or employed in interstate commerce; the paragraph contains no reference to the means employed to accomplish the damage or destruction.

The second paragraph of § 32 makes it a crime to willfully do certain acts with respect to an engine, propeller, appliance, or spare part of such aircraft, with intent to damage or destroy such aircraft.

The third paragraph of § 32 makes it a crime to willfully place any destructive substance in or upon any such aircraft “with like intent.”

Thus, it clearly appears that the second and third paragraphs which refer to “such aircraft” must be read and considered in connection with the first paragraph which pertains to a civil aircraft used or employed in interstate commerce. The second paragraph provides that the proscribed acts must be done with the intent to damage or destroy the aircraft. Obviously, the phrase in the third paragraph — -“with like intent”— must be construed to mean the intent to damage or destroy such aircraft.

As we construe the remaining paragraphs of § 32 they can have no possible relevance in the instant case. White complains that the indictment should have specified a particular paragraph of § 32 rather than the entire section. However, an examination of the record discloses beyond doubt or question that counsel for White was fully aware of the nature of the charges at all times. From the discussion and argument before the court by defense counsel and counsel for the prosecution, it is clear that the case was tried upon the theory and with the understanding that the indictment was intended to charge defendant with knowingly giving false information concerning an attempt to do an act which would be a crime prohibited by the third paragraph of § 32, i. e., placing a destructive substance aboard the aircraft. This understanding on the part of the defendant and his counsel is further evidenced by their contention that the charge in the indictment that the defendant gave false information with respect to the placing of a destructive substance aboard the aircraft was insufficient to charge a violation of § 35(b) unless accompanied by an allegation that the information given disclosed the intent to damage or destroy the aircraft, such intent being an essential element of the crime prohibited by § 32.

It is interesting to look to 18 U.S.C. § 35 as first enacted, to take note of the subsequent changes therein from its original form, and to examine the very few cases decided thereunder.

In Smith v. United States, 283 F.2d 16 (6 Cir. 1960), the defendant was convicted of conveying to a federal agency in charge of an airport control tower, by telephone, false information that a bomb was on an outgoing civil aircraft. While the question presented in the instant case was not there involved, our attention is attracted to the wording of the one-count indictment drawn under § 35 in its original form, as follows:

“Robert James Smith did willfully impart and convey and cause to be imparted and conveyed, false information, knowing the same to be false, concerning an attempt and alleged attempt being made and to be made to willfully place and cause to be placed a destructive substance, to wit: a bomb, in, upon and in proximity to a civil aircraft used, operated and employed in interstate commerce with intent to damage, destroy, disable and wreck such aircraft, a crime prohibited by section 32, Title 18, United States Code, a part of Chapter II, Title 18, United States Code, . . . . ” (Emphasis added.)

In support of his contention that the indictment in the ease before us is fatally defective for failure to charge the false communication of the essential element of intent to damage or destroy the aircraft, as provided in § 32, White relies upon Carlson v. United States, 296 F.2d 909 (9 Cir. 1961). In that case an information was drawn under § 35, the misdemeanor statute in the form as originally enacted, and charged that the defendant

“. . . did wilfully impart and convey to Gayle Zimmer, a stewardess, false information concerning an alleged attempt being made to wilfully place a destructive substance, to wit: explosives, upon American Airlines Flight number 8, a civil aircraft used, operated and employed in interstate commerce, well knowing such information to be false.” (296 F.2d at 910)

The court concluded that in order to determine the elements of the offense sought to be charged it was necessary to examine 18 U.S.C. §§ 32 and 35. Upon such analytical examination the information was held to be fatally defective. At 296 F.2d p. 911 the court stated:

“The act concerning which false information was given, as alleged in the information (the wilful placing of explosives upon an aircraft) finds its counterpart only in the third paragraph of section 32, quoted above. But, under that paragraph of section 32, the wilful act there described is not a crime unless done ‘with like intent,’ namely, the intent stated in the second paragraph of section 32, ‘to damage, destroy, disable, or wreck any such aircraft; . . . ’
“This indispensable intent factor of the second element of the crime described in section 35 is wholly missing from the language of the information. Stated differently, the alleged false information was not (as required in order to constitute an offense) that explosives had been wilfully placed on an aircraft with intent to damage the aircraft, but was only that explosives had been wilfully placed on an aircraft.”

The court went on to note that the only false reports which are forbidden by § 35 are those concerning an act which would be a crime prohibited by “this chapter” and pointed with approval to the form of the indictment in Smith v. United States, supra, observing that the Smith indictment evidenced the same construction of the statute as the Carlson court placed upon it.

The next reported case involving a prosecution under 18 U.S.C. § 35 in its original form is United States v. Allen, 317 F.2d 777 (2 Cir. 1963). There the defendant and a friend, Roth, were at the ticket counter of an airline in Connecticut and Roth was intending to fly to Chicago. Roth had two bags, one large and one small. An attendant took the large bag a short distance down the counter for weighing, asking whether Roth was to carry the small bag. The defendant handed Roth the small bag, asking “Is that the bag with the bomb in it?” The attendant, then about six feet away, looked toward the defendant who said to Roth, “I don’t think he likes me.” The bags were searched but revealed no bomb and Roth took the plane to Chicago. In Allen the form of the information was not set forth but was referred to in the introductory paragraph of the opinion (p. 777) as a “one-count information charging wilful conveying of false information, known to be false, concerning an alleged attempt to damage a civil aircraft, in violation of 18 U.S.C. § 35 (the bomb hoax or false tip statute), a misdemeanor, . . .” The court in Allen expressly rejected the decision of the Ninth Circuit in Carlson, supra, and stated as the basis for its - holding:

“The legislative history is persuasive that specific evil intent was not required, for the House Report No. 1979, 84th Congress, 2nd Session, on the bill which became this Act contains this language: ‘The committee has amended the bill to make it clear that the legislation is intended to cover fictitious reports, as well as false reports that attempts are being made or contemplated. It is obvious that such false alarms can seriously disrupt air-carrier service, whether such reports are the work of pranksters or of subversive or other malicious elements.’ 2 U.S.Code Congressional and Administrative News, 84th Congress, 2nd Session, 1956, p. 3146. This language surely expresses the intent to cover words spoken in jest as well as those uttered with the specific purpose to harm the carrier by interruption of traffic.” (317 F.2d at 778.)

The committee report to which reference is made in the foregoing quotation from Allen pertained to proposed changes in and amendments to the form of the bill as originally introduced into the Congress which bill, as amended by committee, was enacted into law as 18 U.S.C. § 35. The intent with which the Congressional Report was concerned was the purpose of the perpetrator of the hoax in making his false report. The language of the report has no application to the issue in the present case since we are here concerned with the intended use of a destructive substance only as falsely communicated to the airline official. Although the information in Allen was drawn under § 35 as originally enacted, the word “willfully” had been removed by the amendment of 1961 at the time the Allen court handed down its decision. In that connection the court observed:

“The amendment to this Act by the 1st session of the 87th Congress in 1961 removing ‘wilfully’ from the misdemeanor section is no indication that practical jokers were not intended to be covered by the earlier Act, for the Act as amended still makes conveying of the false information without malice a misdemeanor, while it adds a felony provision when done wilfully and maliciously or with a reckless disregard for human life. Allen’s statement, even if meant for a jest, would today fall within the misdemeanor section, as we hold it did under section 35 before the amendment.”

The conviction of Allen was affirmed.

In United States v. Sullivan, 329 F.2d 755 (2 Cir. 1964), cert. denied, 377 U.S. 1005, 84 S.Ct. 1943, 12 L.Ed.2d 1054 (1964), the defendant was tried and convicted of a misdemeanor by a jury upon an information drawn under 18 U.S.C. § 35(a). The substance of the charge was that the defendant, while aboard a certain aircraft which was being used for and employed in interstate air commerce, imparted and conveyed the false information that he then and there had “a power T.N.T. bomb aboard in his luggage, which information concerned an attempt to do an act which would be a crime prohibited by Title 18 United States Code, section 32, the said defendant . . . knowing the information to be false. (Title 18 United States Code, section 35(a)).” The identical issue presented in Allen, supra, was before the court in Sullivan and at page 756 the court stated:

“To be sufficient, the information need not allege specifically a threat to destroy the plane, nor is there any required allegation of malice or evil purpose. These points were clearly decided by this court in United States v. Allen, . . . .We found support for this result in the legislative history of the act. The Committee on the Judiciary of the House of Representafives, in reporting the 1961 amendment to 18 U.S.C. § 35, had this to say about the subsection here involved:
‘Subsection (a) would make it a misdemeanor for anyone to impart or convey information about a false bomb or bomb hoax, knowing the same to be false, even though such an act was done without malice. 2 U.S.Code Congressional and Administrative News, 87th Congress, First Session, 1961, p. 3053.’ ”

We are unable to find support in the quoted Congressional Report for the position taken by the court. The phrase “even though such an act was done without malice” can only be construed to apply to the purpose behind the act of the perpetrator of the hoax. The phrase cannot logically be construed to mean that the requirement of § 32 of “intent to damage or destroy” in placing the bomb on board an aircraft, were it true, is not an essential element. Such a construction would fly in the face of the unambiguous language of the statute that the false report must concern “an attempt or alleged attempt being made or to be made, to do any act which would be a crime prohibited by this chapter.” We look to the unambiguous words of the criminal statute to determine its meaning and not to the purported intentions of a congressional committee.

Another case from the Second Circuit, United States v. Rutherford, 332 F.2d 444 (2 Cir. 1964), cert. denied, 377 U.S. 994, 84 S.Ct. 1922, 12 L.Ed.2d 1046 (1964), involved an information drawn under 18 U.S.C. § 35(a) and the court merely stated its reliance upon its earlier decision in United States v. Allen, 317 F.2d 777, without further discussion.

The Government contends that the Second Circuit cases, namely, Allen, Sullivan and Rutherford, supra, are apposite here. Our research has failed to disclose any reported case involving a prosecution under 18 U.S.C. § 35(b), the felony section. The cases hereinbefore cited and discussed from the Sixth, Ninth and Second Circuits involve misdemeanor charges under either § 35 as originally enacted or as amended and re-enacted in 1961 as § 35(a). We do not accept any of those decisions as persuasive authority in our search for the correct answer to the question presented here; we are constrained to observe only that they reflect the law of the respective circuits from whence they came in misdemeanor prosecutions.

To constitute a substantive violation of the third paragraph of 18 U.S. C. § 32 more is required than merely placing a destructive substance aboard an aircraft; such act must be accompanied by an intent, at least, to damage the aircraft. We reach the conclusion that by incorporation of the reference to § 32 in the indictment there is no charge of a violation of § 35(b) unless the false information concerning the placing of a destructive substance on board the aircraft includes, expressly or by implication, information concerning an intent to damage or destroy the plane. However, the statement of this conclusion does not dispose of this appeal.

The indictment in the instant case (see footnote 1) specifically alleges that White falsely reported that he had a bag containing a destructive substance “with which he could destroy the aircraft.” White argues that the words of the indictment must follow the language of the statute and that the use of the word “could” is insufficient to charge the intent to damage or destroy the aircraft since it is conditional or ambiguous. We disagree. It is not a requirement of the Federal Rules of Criminal Procedure that an indictment follow the exact language of the statute although in many, if not most, instances that would appear to be the better practice. It is sufficient if the indictment sets forth the essential facts constituting the crime charged with words of “similar import.” Hall v. United States, 410 F.2d 653, 659 (4 Cir. 1969), cert. denied, 396 U.S. 970, 90 S.Ct. 455, 24 L.Ed.2d 436 (1969); United States v. Chunn, 347 F.2d 717, 719 (4 Cir. 1965); United States v. Martell, 335 F.2d 764, 765 (4 Cir. 1964); Finn v. United States, 256 F.2d 304, 306 (4 Cir. 1958). Accord, Hockenberry v. United States, 422 F.2d 171, 173-174 (9 Cir. 1970). United States v. Zarra, 298 F.Supp. 1074, 1077-1078 (M.D.Pa.1969), aff’d, 423 F.2d 1227 (3 Cir. 1970), cert. denied, 400 U.S. 826, 91 S.Ct. 52, 27 L.Ed.2d 56 (1970).

The words “with which he could destroy the aircraft” carry with them the unmistakable implication of a communication of the intent which is an essential element of a substantive violation of the third paragraph of § 32. Consideration of the indictment as a whole leads us to conclude that all essential elements of the crime are sufficiently set forth therein.

White’s final challenge is to the sufficiency of the proof to sustain the conviction. He contends that there would have been no substantive violation of § 32 even had he actually been in possession of a destructive substance since he did not have or indicate the intent to damage or destroy the aircraft and even stated that he did not wish to do so unless forced to it.

White erroneously characterizes his actions, statements and conduct as expressions of a desire to destroy the plane but accompanied by a statement that he would not do so. However, from the events which were developed by the evidence White’s threats were of certain, imminent harm to the aircraft unless an alternative should be provided by compliance with his demand that he be flown to Cuba. The law of criminal assault is filled with examples of such qualified threats which have served as the bases of convictions.

For the reasons herein stated the conviction is affirmed.

Affirmed.

      . The charging part of the indictment is as follows:
      On or about June 18, 1971, in the County of Forsyth, in the Middle District of North Carolina, BOBBY RICHARD WHITE, while aboard a Piedmont Airlines aircraft, Flight number 25, an aircraft which was being used for and employed in interstate commerce, wilfully and maliciously and with reckless disregard for the safety of human life, imparted and conveyed the false information that he then and there had a bag containing nitroglycerin and sulfuric acid with which he could destroy the aircraft, which information BOBBY RICHARD WHITE knew to be false and which concerned an attempt to do an act which would be a crime prohibited by Title 18, United States Code, Section 32; in violation of Title 18, United States Code, Section 35(b).

      . 18 U.S.C. § 35(b) in pertinent part:
      (b) Whoever willfully and maliciously, or with reckless disregard for the safety of human life, imparts or conveys or causes to be imparted or conveyed false information, knowing the information to be false, concerning an attempt or alleged attempt being made or to be made, to do any act which would be a crime prohibited by this chapter . . . shall be fined not more than $5,000, or imprisoned not more than five years, or both.

      . § 32. Destruction of aircraft or aircraft facilities
      Whoever willfully sets fire to, damages, destroys, disables, or wrecks any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce; or
      Whoever willfully sets fire to, damages, destroys, disables, or wrecks any aircraft engine, propeller, appliance, or spare part with intent to damage, destroy, disable, or wreck any such aircraft ; or
      Whoever, with like intent, willfully places or causes to be placed any destructive substance in, upon, or in proximity to any such aircraft, or any aircraft engine, propeller, appliance, spare part, fuel, lubricant, hydraulic fluid, or other material used or intended to be used in connection with the operation of any such aircraft, or any cargo carried or intended to be carried on any such aircraft, or otherwise makes or causes to be made any such aircraft, aircraft engine, propeller, appliance, spare part, fuel, lubricant, hydraulic fluid, or other material unworkable or unusable or hazardous to work or use; or
      Whoever, with like intent, willfully sets fire to, damages, destroys, disables, or wrecks, or places or causes to be placed any destructive substance in, upon, or in proximity to any shop, supply, structure, station, depot, terminal, hangar, ramp, landing area, air-navigation facility or other facility, warehouse, property, machine, or aparatus used or intended to be used in connection with the operation, loading, or unloading of any such aircraft or making any such aircraft ready for flight, or otherwise makes or causes to be made any such shop, supply, structure, station, depot, terminal, hangar, ramp, landing area, air-navigation facility or other facility, warehouse, property, machine, or apparatus unworkable or unusable or hazardous to work or use; or
      Whoever, with like intent, willfully incapacitates any member of the crew of any such aircraft; or
      Whoever willfully attempts to do any of the aforesaid acts or things— shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.
      Note: “Destructive substance” mentioned in the third paragraph of § 32 above is defined in 18 U.S.C. § 31 as follows:
      “Destructive substance” means any explosive substance, flammable material, infernal machine, or other chemical, mechanical, or radio-active device or matter of a combustible, contaminative, corrosive, or explosive nature; . . .

      . Section 35 was first enacted as a misdemeanor statute by Act of July 14, 1956, 70 Stat. 540, in the following form:
      § 35. Imparting or conveying false information
      Whoever willfully imparts or conveys or causes to be imparted or conveyed false information, knowing the information to be false, concerning an attempt or alleged attempt being made or to be made, to do any act which would be a crime prohibited by this chapter or chapter 97 or chapter 111 of this title— shall be fined not more than $1,000, or imprisoned not more than one year, or both.

      . By Act of October 3, 1961, 75 Stat. 751, the statute was amended by the deletion of the word “willfully” from the original version, was re-enacted with no other changes and designated as § 35(a). The same Act of October 3, 1961, also created § 35(b), the section involved in the instant case and reproduced in footnote 2, supra. It will be observed that § 35(b) contains the words “willfully and maliciously, or with reckless disregard for the safety of human life,” and that a violation of this section is made a felony. By Act of July 7, 1965, 79 Stat. 210, Congress further amended § 35(a) to substitute a civil penalty of not to exceed $1,000 in place of the fine and imprisonment provisions of the 1961 misdemeanor version but this amendment has no relation to the question now before the court.

      . The 1961 amendments were requested by the Justice Department in an Executive Communication from the Attorney General of the United States to the Speaker of the House of Representatives and reasons for the request were assigned:
      Our efforts to curb the high incidence of false bomb reports necessarily have included the prosecution of people who claimed they had no intention to create any apprehension or disturbance but were merely playing a practical joke. In prosecuting such individuals, we have taken the position that the word ‘willfully,’ as used in section 35, does not necessarily embrace any evil purpose but comprehends merely a voluntary and conscious imparting or conveying of the false information with which the statute deals. However, the courts have not uniformly adopted our position. Adding to the judicial confusion over the applicability of the statute in prankster cases is the disinclination on the part of jurors to accept our position, resulting in undue acquittals in such cases. [Emphasis added.]
      To clarify the statute, and to render it more effective, I submit to the Congress a bill which would make it a felony for one to convey a false report willfully and maliciously, or with reckless disregard for the safety of human life, and a misdemeanor to do so with knowledge of its false character even though without malice or reckless disregard for human life. Such a statute would clearly show the congressional intention to make it a criminal offense to give false reports even without an evil or reckless motive and would provide a more adequate penalty for those whose actions warrant it. (1961 U.S. Code Cong. & Admin.News, p. 3053)
      The proposal of the Attorney General as to amendments was adopted in the Senate Report accompanying the bill to amend original § 35.
      Sen.Rep. No. 1055, 87th Cong., 1st Sess., 1961; 1961 U.S.Code Cong. & Admin.News, p. 3053:
      The committee believes that the proposed legislation, as recommended by the Attorney General and as approved by the House of Representatives, is meritorious and recommends it favorably.
      It is apparent from the foregoing quotations that the purpose of the amendments was to “reshape” the statute to eliminate the confusion which had arisen in connection with attempts to prosecute pranksters for misdemeanors under § 35 as originally enacted. However, the addition of § 35(b) was designed to make it a felony to voluntarily and consciously impart or convey false information with an “evil purpose,” i. e., willfully and maliciously, or with reckless disregard for the safety of human life.

      . See Carlson v. United States, 296 F.2d 909, 911 (9 Cir. 1961).

      . Appellant states in his brief that his threats were to be equated with the common-law example: “If it were not assize time, I would not take such language from you,” which did not constitute an assault.

      . Among the threats uttered by White to Captain Fox was the following: “Well, I don’t want to take any children’s father with me, but unless we get going, I am going to drop this and blow us up.”

      . Compare White’s statement in note 9, supra, with the threat “Turn around, or I will blow your head off,” which threat constitutes an assault. 6 Am.Jur.2d § 30, p. 32.


author: TIMBERS, Circuit Judge:

text:
    SECURITIES AND EXCHANGE COMMISSION, Plaintiff-Appellee, v. EVEREST MANAGEMENT CORPORATION et al., Defendants-Appellees, Competitive Associates, Inc. and Competitive Capital Corporation, Applicants for Intervention-Appellants.
    No. 239, Docket 72-1782.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 18, 1972.
    Decided Dec. 18, 1972.

      Meyer Eisenberg, Washington, D. C. (D. Barry Morris and Lawler, Sterling & Kent, Washington, D. C., on the brief), for applicants for intervention-appellants.
    Milton S. Gould, New York City, for defendants-appellees, Laventhol, Krekstein, Horwath & Horwath.
    Paul Gonson, Asst. Gen. Counsel, SEC, Washington D. C. (Walter P. North, Acting Gen. Counsel, David Ferber, Solicitor, and John M. Turner, Jr., Atty., SEC, Washington, D. C., on the brief), for plaintiff-appellee.
    Before MOORE, MULLIGAN and TIMBERS, Circuit Judges.
   TIMBERS, Circuit Judge:

This appeal presents the question whether victims of alleged securities fraud are entitled to intervene in an SEC enforcement action as of right under Fed.R.Civ.P. 24(a)(2) or, alternatively, whether the district court abused its discretion in denying permissive intervention under Fed.R.Civ.P. 24(b)(2). We hold that appellants were not entitled to intervene as of right and the district court did not abuse its discretion in denying permissive intervention. We affirm.

I.

On November 11, 1971, the SEC brought an action in the Southern District of New York to enjoin 44 defendants from violating, inter alia, the anti-fraud provisions of the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Advisers Act of 1940 and certain provisions of the Investment Company Act of 1940 designed to prevent self-dealing and gross abuse of trust. The complaint contained 45 counts which charged defendants with a broad scheme of stock manipulation, bribery, and fraud involving many investors.

On January 5, 1972, appellants — Competitive Associates, Inc., an open-end investment company, and Competitive Capital Corp., the investment adviser, of Competitive Associates — filed a motion to intervene as plaintiffs in certain counts against certain defendants in order to assert claims for money damages. They sought to intervene in 3 of the 45 counts in order to assert claims against 7 of the 44 named defendants. The proposed intervenors’ complaint sought money damages of $6,000,000 based on alleged violations of various antifraud provisions of the federal securities laws and based also on what the proposed intervenors’ complaint described as “Breach of Fiduciary Obligations and Fraud.”

After hearing oral argument on the motion to intervene on February. 22, 1972, at which time the motion was opposed by counsel for the SEC and by counsel for various defendants, the district court, David N. Edelstein, Chief Judge, entered an order on March 22, 1972 denying the motion. We affirm.

II.

Appellants’ first contention on appeal is that they were entitled to intervene as of right pursuant to Rule 24(a)(2).

This claim, although originally asserted in the district court, was withdrawn at the time of argument below and before the court decided the intervention motion. Under these circumstances, appellants are foreclosed from raising this claim on appeal. See United States v. Lipton, 467 F.2d 1161, 1168 (2 Cir. 1972); Winnick v. Manning, 460 F.2d 545, 550 (2 Cir. 1972); United States v. Deutsch, 451 F.2d 98, 117 (2 Cir. 1971), cert. denied, 404 U.S. 1019 (1972); United States v. L. N. White and Co., 359 F.2d 703, 710-11 (2 Cir. 1966).

Aside from the lack of timeliness, there is no merit to the claim. Rule 24(a)(2) provides:

“Upon timely application anyone shall be permitted to intervene in an action': ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”

It is true that appellants have “an interest relating to [a] . . . transaction which is [a] subject of the action” and that their interest is not adequately represented by existing parties because only appellants claim damages. The remaining issue, therefore, is whether appellants are “so situated that the disposition of the action may as a practical matter impair or impede [their] ability to protect that interest.” We hold they are not.

^Appellants concede that they will not be precluded by res judicata or collateral estoppel from bringing their own action for money damages regardless of the disposition of the SEC action. Appellants’ essential argument is that if intervention is denied they will be required to bear the financial burden of duplicating the SEC’s efforts; and, not having the SEC's investigative staff and resources available to them, they may be unable to develop as complete and reliable a record as they might if intervention were allowed. This is not the sort of adverse practical effect contemplated by Rule 24(a)(2). Whatever bearing such considerations might have upon the exercise of a district court’s discretion on a motion for permissive intervention, we hold that such considerations do-, not require intervention as of right, j

III.

Appellants’ second contention is that the district court abused its discretion in denying permissive intervention pursuant to Rule 24(b)(2) which provides in relevant part:

“Upon timely application anyone may be permitted to intervene in an action: ... (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. ... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.”

Of the two factors to be considered in determining whether permissive intervention should be granted, there can be no doubt here that appellants’ claims and the SEC’s claims in the main action have a number of common questions of law and fact. The remaining issue, therefore, is “whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” We hold that the district court did not abuse its discretion in concluding that it would.

There is some surface appeal to the claim that victims of securities fraud should be allowed to intervene in an SEC enforcement action based on the same fraud. As appellants here argue, they as intervenors would be able to take full advantage of the superior resources and investigative facilities of the SEC. They also might be spared much effort in presenting their case at trial. The federal courts consistently have favored vigorous enforcement of the securities laws through private actions. See J. I. Case Co. v. Borak, 377 U.S. 426, 432 (1964); Fischman v. Raytheon Mfg. Co., 188 F.2d 783, 786-87 (2 Cir. 1951); Speed v. Transamerica Corp., 235 F.2d 369, 373 (3 Cir. 1956). To allow private litigants to intervene in an SEC enforcement action might be said to conform to this policy.

Despite the surface gloss of this argument favoring intervention, we hold that the district court did not abuse its discretion in denying permissive intervention.

The SEC’s workload, despite its limited budget and staff, would be substantially increased if such intervention were allowed. Additional issues would have to be tried in the main action. SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 185-94 (1963). For example, a private party seeking damages would have to prove scienter and causation, elements of proof not required in an SEC injunction action. Mutual Shares Corp. v. Genesco, Inc., 384 F.2d 540, 547 (2 Cir. 1967). Already complicated securities cases would become more confused and complex. The SEC can bring the large number of enforcement actions it does only because in all but a few cases consent decrees are entered. The intervention of a private plaintiff might tend to discourage or at least to complicate efforts to obtain a consent decree. We hold that the complicating effect of the additional issues and the additional parties outweighs any advantage of a single disposition of the common issues. See Lip-sett v. United States, 359 F.2d 956, 959-60 (2 Cir. 1966).

Moreover, the importance to a private litigant of being permitted to intervene in an SEC action strikes us as exaggerated by appellants. They claim that they would not have access to the SEC’s extensive resources and information regarding this particular action if a consent decree were to be entered. As the SEC candidly informs us, however, the parties and the courts in private litigation often can obtain information from SEC investigations where such information can be given without prejudice to further enforcement proceedings or other law enforcement interests. Furthermore, if a consent decree is not entered, the private litigant will have the benefit of the tactics and strategy of the SEC in the prosecution of the action.

Finally and of crucial importance here, Rule 24(b) necessarily vests broad discretion in the district court to determine the fairest and most efficient method of handling a case with multiple parties and claimsTj Whether, under unusual circumstances, it might be appropriate for a district court to allow a private party to intervene in an SEC enforcement action, suffice it to say that this is not such a ease. The record in the instant case overwhelmingly supports the propriety of the district court’s exercise of discretion in denying permissive intervention. We are fortified in our reluctance to reverse such a discretionary order by the reliable information that there is not a single reported case in which an appellate court has reversed solely because of an abuse of discretion in denying permissive intervention. 7A Wright and Miller, Federal Practice and Procedure § 1923, at 631-32 (1972).

We hold that the district court did not abuse its discretion in denying permissive intervention.

Affirmed.

      . At the conclusion of the argument of this appeal on December 18, 1972, we affirmed from the bench in order to permit the SEC enforcement action in the district court to go forward without further delay. In view of the importance of the questions presented and the sparseness of authority regarding the issues involved, however, we believe that we should briefly state the reasons for our affirmance of the order of the district court. Hence this opinion.

      . The traditional view was that an appellate court would reverse if a district court had erroneously denied intervention as of right; but that the order was not appeal-able, and the appeal should be dismissed, if the district court had properly denied intervention. Levin v. Ruby Trading Corp., 333 F.2d 592, 594 (2 Cir. 1964). This made appealability turn on the merits. The only consequence of such a restriction on appealability was that, on finding that the district court was correct, the appellate court would dismiss the appeal rather than affirm, we have held, however, that a district court’s order denying intervention is final for purposes of appeal; and that it should be reviewed on the merits and affirmed if intervention was properly denied Ionian Shipping Co. v. British Law Ins. Co., 426 F.2d 186, 188-89 (2 Cir. 1970). We follow that rule here.

      . In view of our holding on the merits, we dismiss as moot the SEC’s motion to strike that portion of appellants’ brief dealing with intervention as of right and to dismiss that portion of the appeal dealing with permissive intervention.

      . It has been held that stare decisis by itself, in a proper case, may supply the practical disadvantage that is required for intervention under Rule 24(a) (2). Nuesse v. Camp, 385 F.2d 694, 702 (D.C.Cir. 1967); Atlantis Development Corp. v. United States, 379 F.2d 818, 828-29 (5 Cir. 1967). This is not such a case., Among other reasons, the SEC is adequately representing the interests of appellants insofar as the stare decisis problem is concerned.

      . Appellants rely heavily on the Fifth Circuit’s holding in Radial v. Hill, 435 F.2d 59 (5 Cir. 1970), cert. denied, 403 U.S. 904 (1971), that the determination of issues in an SEC injunction action would not have collateral estoppel effect in a subsequent private action brought against the same defendants and based on the same transaction. Appellants argue, accordingly, that, unless intervention in the present SEC action is permitted, a total relitigation of the issues would be required in a subsequent action.
      [...quired in a subsequent action. Suffice it to say that in our view it is preferable to require private parties to commence their own actions than to have SEO actions bogged down through intervention.

      . But, lest we forget, see Appeal of the United States Securities and Exchange Commission, 226 F.2d 501 (6 Cir. 1955).


author: RONEY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. DUNHAM CONCRETE PRODUCTS, INC. et al., Defendants-Appellants.
    No. 71-2791.
    United States Court of Appeals, Fifth Circuit.
    March 23, 1973.
    Rehearing and Rehearing En Banc Denied May 23, 1973.

      James A. McPherson, New Orleans, La., Ossie B. Brown, Baton Rouge, La., for defendants-appellants.
    Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., Howard E. Shapiro, Stephen Rubin, Harry First, Carl D. Lawson, Wilford L. Whitley, Jr., Attys., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before RIVES, WISDOM and RONEY, Circuit Judges.
   RONEY, Circuit Judge:

This case involves a federal statute, now repealed, that is asserted to immunize a defendant from criminal prosecution under the antitrust laws for transactions about which he had testified in a private antitrust case, at a time when the statute was effective. We hold that a proper reading of the statute fails to immunize the defendant, that there is no merit to the claims of error in the grand jury proceedings that produced the indictment, and that the trial proceedings contain no reversible error. We affirm the convictions.

A jury convicted three corporate defendants and their part-owner and manager Ted F. Dunham, Jr. of (1) attempting to monopolize trade in concrete products, in violation of Section 2 of the Sherman Act, 15 U.S.C.A. § 2, and (2) conspiring to affect commerce by attempting to obtain property through physical violence, in violation of the Hobbs Act, 18 U.S.C.A. § 1951. On the Sherman Act count, Louisiana Ready-Mix Company and Dunham Concrete Products, Inc. were each fined $30,000, Anderson-Dunham, Inc. was fined $40,000, and Ted Dunham was fined $30,000 and was sentenced to six months in prison. On the Hobbs Act count, Louisiana Ready-Mix and Dun-ham Concrete were fined $5,000 each, Anderson-Dunham was fined $10,000, and Ted Dunham was fined $10,000 and was sentenced to three years in prison, with two and one-half years suspended. Dunham’s prison sentences are to run consecutively.

Although all defendants filed a notice of appeal, only Anderson-Dunham, Inc. and Ted Dunham, Jr. have prosecuted their appeals. The appeals of the other two corporate defendants, Louisiana Ready-Mix Company and Dunham Concrete Products, are therefore dismissed. Rule 12(c), F.R.A.P.

I. Immunity

In 1967 Dunham, certain Dunham corporations, and a labor representative were sued in a private antitrust action that sought treble damages for an alleged conspiracy to restrain trade in the Baton Rouge, Louisiana, concrete products market. Dunham was deposed three times by the private plaintiff during the preliminary stages of the civil litigation. The testimony elicited from him in the first two depositions covered matters that later constituted the substance of the Sherman Act violations, and the third deposition dealt with Dun-ham’s knowledge of the alleged Hobbs Act violation. We assume that Dun-ham’s deposition testimony would qualify him for immunity if the immunity statute is applicable. The corporate defendant Anderson-Dunham, Inc., does not claim immunity because the statute specifically applies only to natural persons and, moreover, a corporation has no Fifth Amendment privilege through which immunity may be asserted. George Campbell Painting Corp. v. Reid, 392 U.S. 286, 88 S.Ct. 1978, 20 L.Ed.2d 1094 (1968).

The question is whether a person, who testifies in a private civil antitrust suit in which the Government has no involvement, is entitled to immunity from criminal prosecution under 15 U. S.C.A. § 32. The Government contends that, because only the Government can grant immunity, the statute does not apply to nongovernment litigation.

Dunham contends that he is entitled to immunity (1) under the wording of the statute, (2) because permitting immunity here would further the legislative purpose of Section 32, and (3) because prior ease law tends to support his view of the scope of the statute.

Enacted as part of the general appropriations act of February 25, 1903, Section 32 provides that

“No person shall be prosecuted or be subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence, documentary or otherwise, in any proceeding, suit or prosecution under sections 1 through 7 of this title and all Acts amendatory thereof or supplemental thereto, and sections 8 to 11 of this title .. . .”

Act of February 25, 1903, c. 755, § 1, 32 Stat. 904.

We note that this decision will be one of limited effect. Sections 32 and 33, which grant a broad transactional immunity, have now been repealed by Public Law 91-452, Title II, §§ 209, 210, 84 Stat. 929 (October 15, 1970). The current immunity statute, 18 U.S.C.A. § 6002, permits only a narrowed use immunity, and Section 6003(a) explicitly states that immunity is to be conferred by the District Court “upon the request of the United States attorney.” Under the current statute, then, only the Government can confer immunity. Hence, our decision here will affect only appellant Dunham and such other antitrust criminal prosecutions, if any, in which the defendants testified in private litigation prior to October 15, 1970, the effective date of repeal for Sections 32 and 33.

The District Court held that Dunham was not immune under Section 32 from prosecution. This holding was correct. To hold otherwise would be contrary to the wording of the statute, its legislative history, and its purpose.

1. Section 32 was enacted as part of the general appropriations act of February 25, 1903, that declared in part:

“That for the' enforcement of the provisions of the [Interstate Commerce] Act . . . the [Sherman] Act . . . and . . . [the antitrust provisions of the Wilson Tariff] Act, . . . the sum of five hundred thousand dollars ... is hereby appropriated . . to be expended under the direction of the Attorney-General in the employment of special counsel and agents of the Department of Justice to conduct proceedings, suits, and prosecutions under said Acts in the courts of the United States: Provided, That no person shall be prosecuted or be subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence, documentary or otherwise, in any proceeding, suit, or prosecution under said Acts.”

32 Stat. 903-904 (1903).

The language of the appropriation portion of the statute indicates that the purpose of the appropriation was to fund judicial enforcement activities by the United States. See United States v. Welden, 377 U.S. 95, 84 S.Ct. 1082, 12 L.Ed.2d 152 (1964); United States v. Monia, 317 U.S. 424, 63 S.Ct. 409, 87 L.Ed. 376 (1943). The money was “to be expended under the direction of the Attorney-General in the employment of special counsel and agents of the Department of Justice . . . .”32 Stat. 904. These Justice Department personnel were “to conduct proceedings, suits, and prosecutions” under the then-current antitrust laws. 32 Stat. 904. In addition, the immunity proviso in question here was appended.

Dunham argues that, if Congress had intended that only the Government be authorized to accord immunity under Section 32, the statute would read “Government proceeding, suit by the United States or prosecution.” We disagree. We think that the “proceedings” to which the statute refers are the same “proceedings” with which the appropriation as a whole is concerned. Thus, since the “proceedings, suits, and prosecutions” referred to in the appropriation section of the bill were those brought by the Justice Department, so also must those terms, when used in the immunity proviso, refer to those “proceedings, suits, and prosecutions” conducted by “special counsel and agents of the Department of Justice.”

This reading of the phrase in question has previously been approved by the Supreme Court in another context. In United States v. Welden, supra, the defendant in a criminal antitrust prosecution had previously testified under subpoena before a Congressional subcommittee under subpoena about the same matters. Welden moved to dismiss the indictment on the ground of immunity under Section 32, contending that the language in the proviso applying to “any proceeding” encompassed more than the nearly identical language in the previous clause in the statute authorizing court enforcement by the Department of Justice and was broad enough to cover Congressional investigations. The Supreme Court, however, rejected this contention and stated: “By any common-sense reading of this statute, the words ‘any proceeding, suit, or prosecution under said Acts’ in the proviso plainly refer to the phrase ‘proceedings, suits, and prosecutions under said Acts in the courts of the United States,’ in the previous clause.” 377 U.S. at 97, 84 S.Ct. at 1084 (Court’s emphasis). Hence, to read Section 32 as Dunham seeks would require us to read the phrase one way in one clause, and to construe it another way in a subsequent clause. This we cannot do. The phrase must be given the same meaning in both clauses.

2. The legislative history of Section 32 indicates very little about its intended scope. The appropriation was viewed by its sponsors as legislation that would strengthen antitrust enforcement by the Attorney-General. 36 Cong.Rec. 411-12 (1902). The immunity section itself was also intended to facilitate antitrust enforcement. Because it had proven “extremely difficult to establish the existence of combinations or conspiracies without the testimony of persons who [were] guilty parties thereto,” an immunity provision would have “great utility in aiding in effectively enforcing the antitrust laws.” H.R.No.1506, 56th Cong., 1st Sess. 2; 33 Cong.Rec. 6478 (1900).

The legislative history of the 1906 amendment to the immunity statute, 34 Stat. 798, 15 U.S.C.A. § 33, however, confirms our view that Congress intended for Section 32 immunity to be granted solely by Government officials. Section 33 specifically limited immunity under existing immunity statutes to persons testifying under oath and in obedience to a subpoena. The Senate version of Section 33, S. 5769, read substantially like the present statute, but the House version extended immunity only to a person “who, as a witness on the part of the Government in any proceeding authorized by any of said statutes, testifies on oath or in obedience to a subpoena produces relevant evidence.” 40 Cong.Rec. 8738 (1906) (emphasis added). The floor manager of the bill in the House, Representative Littlefield, stated that “[w]e do not intend that any person shall have the power to offer immunity to a witness except the Government of the United States . . . .” 40 Cong.Rec. 8739 (emphasis added). Although Congressman Littlefield preferred the House version, he admitted that both the House and Senate bills expressed the same intent and accomplished precisely the same purpose. Thus, Section 33 was intended to limit immunity, including Section 32 immunity, to those instances where a responsible Government official would offer it.

3. Finally, to hold that Section 32 authorizes a private plaintiff to immunize antitrust violators would be to disregard the legislative purpose of the. statute. The underlying purpose of the immunity clause was the same as that of the appropriation: to strengthen antitrust enforcement by the Attorney-General.

Dunham argues that, by permitting private plaintiffs to confer Section 32 immunity, Congress would have been strengthening antitrust enforcement by encouraging and by facilitating private enforcement. Although the courts have historically emphasized the importance of the private antitrust action as a means of achieving the policy goals of the antitrust laws, see, e. g., Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968); Byram Concretanks, Inc. v. Warren Concrete Products Co., 374 F.2d 649 (3d Cir. 1967); Rutherford v. United States, 365 F.2d 353 (9th Cir.), cert. denied, 385 U.S. 987, 87 S.Ct. 598, 17 L.Ed.2d 449 (1966); Monarch Life Ins. Co. v. Loyal Protective Life Ins. Co., 326 F.2d 841 (2d Cir. 1963), cert. denied, 376 U.S. 952, 84 S.Ct. 968, 11 L.Ed.2d 971 (1964), private civil actions can only supplement, and not supplant, governmental efforts both civil and criminal. As the Supreme Court stated in holding that a private antitrust decree does not bar a subsequent Government injunction, “it is the Attorney General and the United States district attorneys who are primarily charged by Congress with the duty of protecting the public interest under these laws.” United States v. Borden Co., 347 U.S. 514, 518, 74 S.Ct. 703, 706, 98 L.Ed. 903 (1954). Hence, a construction of Section 32 that would have hindered Government action, civil or criminal, would not be effectuating the legislative intent underlying Section 32.

Dunham’s proposed construction of Section 32 might indeed hinder governmental enforcement of the criminal provisions of the antitrust laws. . First, the decision to prosecute or not to prosecute criminal violations of the antitrust laws would become a decision to be made, not by responsible Government officials, but by private antitrust plaintiffs. A zealous antitrust plaintiff could easily immunize an entire industry from criminal prosecution under the antitrust laws.

Second, the possibility of collusive suits must be reckoned with. If Dun-ham’s view of the Congressional intent were correct, co-conspirators could have used each other to confer immunity from criminal prosecution. Dunham discounts this fear contending that the courts could guard against collusive suits by permitting Section 32 immunity to attach only if the defendant had testified or had produced evidence in a bona fide adversary proceeding. The intent of the Act, however, was to ease prosecution, not to complicate it.

Third, under Dunham’s view of Section 32, the Government’s power to offer immunity in exchange for information would have been extremely limited. Potential defendants would have had an alternate source of immunity, the private plaintiff, and the Government’s power to determine which persons should be prosecuted would have been substantially lessened. Yet this tool to expose anti-competitive conspiracies was, according to one of the drafters of the immunity statute, one of the basic needs underlying the enactment of the statute. See H.R.No.1506, supra.

In view of the legislative history and the clear intent of the statute, we hold that Section 32 authorized immunity from criminal prosecution only to the extent that the Government actively acquiesced.

4. Although we are told that this is the first case to present to an appellate court the question of whether a private plaintiff may confer Section 32 immunity, the available case law almost uniformly supports the Government’s position in this case. Welden v. United States, supra, held that Section 32 immunity applied only to persons testifying in judicial proceedings and did not apply to persons testifying before committees or subcommittees of Congress. United States v. Monia, supra, held that a witness who, under subpoena, testified before a grand jury about an alleged Sherman Act violation obtained immunity from prosecution for that offense, even though he did not claim his Fifth Amendment privilege against self-incrimination. In construing 15 U.S.C.A. § 33, 34 Stat. 798 (1906), the 1906 amendment to Section 32, the Court stated in dictum that the purpose of the amendment was “to protect the Government’s interests by preventing immunity unless the prosecuting officer, or other Government official concerned, should compel the witness’ attendance by subpoena and have him sworn.” 317 U.S. at 429, 63 S.Ct. at 411. Welden, supra, restated this view, declaring:

“United States v. Monia, 317 U.S. 424, 429-430, [63 S.Ct. 409, 412, 87 L.Ed. 376], recognized that ‘the sole purpose’ of the 1906 statute was to limit immunity to persons ‘who, in obedience to a subpoena, testified or produced evidence under oath,’ so that the decision whether or not to grant immunity would be that of the appropriate ‘Government officials,’ rather than of private citizens anticipating indictment.”

377 U.S. at 106, 84 S.Ct. at 1089. Thus, both Welden and Monia indicate that the decision to grant immunity under Sections 32 and 33 was not intended to be left to private citizens.

Several Circuit and District Court cases support this view of Section 32. For example, in a private antitrust suit, H. Wagner & Adler Co. v. Mali, 74 F.2d 666 (2d Cir. 1935), the Second Circuit held that the District Court had erred by requiring defendants to answer interrogatories that were possibly incriminating. In dictum, the Court stated that Section 32 would not cure the impropriety because it could not confer an immunity from criminal prosecution. According to the Court:

“[s]ince the body of the statute is concerned with proceedings brought by the Department of Justice, it would seem a natural construction to limit similarly the proviso. Moreover, it would be an amazing thing to allow a private suitor to confer immunity upon a defendant or other witness by calling him in a private action.”

74 F.2d at 670. See also E. H. Rohde Leather Co. v. Duncan & Sons, Inc., 15 F.2d 103 (W.D.Wash.1926).

Dunham relies on two cases, one of which is not on point and the other of which has limited precedential content. The former, Rutherford v. United States, supra, held only that Section 32 immunity may be granted to a defendant in a Government suit for monetary damages under the Sherman Act. The Ninth Circuit’s holding in Rutherford is not inconsistent with our present holding, because there the Government actively participated in the decision to grant immunity. Dunham’s other case is an unreported decision of the District Court for the Western District of Washington, Sabado-Ollero, Inc. v. United Dairymen’s Ass’n, Civil No. 7144 (W.D.Wash., Aug. 31, 1970), mandamus ref. sub nom. United States v. Sabado-Ollero, Inc., 432 F.2d 1359 (9th Cir., 1970). The District Court there required a defendant to give deposition testimony in a private antitrust suit after being granted Section 32 immunity. The immunized defendant was deposed by the private plaintiff, and the United States applied to the Ninth Circuit for a writ of mandamus to compel the District Court to rescind and vacate its order that granted immunity. In a per curiam order, without ruling on the merits, the Ninth Circuit refused the Government’s mandamus petition. The witness had already been compelled to testify under the District Circuit order of immunity, so the Ninth Circuit’s order could have been based on the unfairness that would have occurred if it had not protected a defendant-witness who had been compelled to testify under a District Court order granting him immunity. To this extent, it is not persuasive precedent in this case.

II. Grand Jury

Appellants contend that the indictment should have been dismissed because a Government grand jury witness (1) testified before the grand jury as an expert on the antitrust problems of the concrete building materials industry, when in actuality he was not a qualified expert; (2) improperly summarized for the grand jury the Government’s presentation; (3) offered an expert opinion to the grand jury on the precise point to be determined by it; (4) improperly referred to an earlier grand jury proceeding by not relating the earlier testimony in its entirety; (5) gave wholly hearsay testimony, based upon other grand jury witnesses’ testimony and upon documents subpoenaed by the grand jury and its predecessor ; and (6) was provided copies of grand jury exhibits, without a court order, in violation of Rule 6(e), F.R.Crim.P.

The witness was Ernest Hays, an economist with the Economic Section of the United States Justice Department’s Antitrust Division. His specific function before the grand jury was to compare the pay scales and other terms of two Teamsters Union contracts. The contracts themselves (one was with appellant Anderson-Dunham, Inc., the other with a competitor) had already been submitted to the grand jury as exhibits by a previous witness, and Hays’ testimony pointed out particular contractual provisions that were more favorable tó appellant Anderson-Dunham, Inc. His testimony focused on two subjects: the lower wage scales paid by AndersonDunham, Inc. and the absence of an arbitration clause in the Anderson-Dun-ham labor contract, a clause present in the competitor’s contract. Appellants argue that Hays’ testimony “improperly influenced” the grand jury’s decision to indict.

Upon a careful reading of Hays' grand jury testimony, we conclude that appellants’ objections to it are groundless and that the District Court correctly refused to dismiss the indictment.

First, Hays did not testify as an expert; he simply made arithmetical computations and compared the provisions of two labor contracts. At no time was Hays asked his “expert opinion” about anything.

Second, nowhere in Hays’ grand jury testimony does he “argumentatively summarize” the Government’s presentation. Appellants fail to indicate precisely where this alleged summary may be found, and we must conclude that Hays” testimony was not improper in this respect.

Third, nowhere did Hays offer an expert conclusion on the “precise point” to be determined by the grand jury. His testimony was explanatory and descriptive, and it offered no conclusions based upon expert judgment.

Fourth, appellants contend that Hays’ testimony was improper because it made an incomplete reference to testimony given before a previous grand jury. Reading the testimony, we can find only one instance where such a reference was made, and that was where Hays pointed out that, although they reached different numerical results, his arithmetic computations merely confirmed to conclusions of the witness who had testified before a previous grand jury. Appellants cite In re Grand Jury Investigation of Banana Industry, 214 F.Supp. 856 (D.Md.1963), for the proposition that the Government, when referring to testimony heard by a previous grand jury, must read the entirety of the testimony to the current grand jury. Unlike the Banana Industry case, though, appellants here can point neither to carefully prepared and highly selective summaries nor to any prejudicial effect from the partial reference. In this context, the partial reference to testimony before a previous grand jury did not constitute a ground for dismissing the indictment.

Fifth, appellants contend that part of Hays’ grand jury testimony was hearsay, is therefore incompetent, and consequently was improper. Assuming that this contention is correct, it nontheless states no legal basis for dismissing the indictment. Courts are not required to dismiss indictments based solely upon hearsay evidence. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956).

Even if Hays’ grand jury testimony was that of an unqualified expert, was an argumentative summary, and was opinionated on the precise point or points to be determined by the grand jury, there would not be sufficient cause for dismissing the indictment.

The rule is clear that Government officials may assist the grand jury in analyzing the evidence before it. For example, in United States v. United States District Court, 238 F.2d 713 (4th Cir. 1956), cert. denied sub nom. Valley Bell Dairy Co., Inc. v. United States, 352 U.S. 981, 77 S.Ct. 382, 1 L.Ed.2d 365 (1957), the Fourth Circuit held that the grand jury could return a valid indictment even after hearing a digest of testimony prepared by Government counsel. According to the Court, “[i]n investigations of this sort [antitrust], it is necessary that the grand jury have the aid of counsel, not only in examining witnesses but also in digesting the great mass of evidentiary matter produced before them . . . . ” 238 F.2d at 720-721. And in United States v. Rintelen, 235 F. 787, 791 (S.D.N.Y.1916), Judge Augustus Hand observed: “Assuming that a grand jury were simply supplied with the witnesses and nothing more . what sort of an investigation would be had, or intelligent consideration secured, in a difficult or complicated matter?”

An indictment, regular on its face and returned by a legally constituted grand jury, is presumed to be founded on competent evidence, United States v. James, 290 F.2d 866 (5th Cir.), cert. denied, 368 U.S. 834, 82 S.Ct. 60, 7 L.Ed.2d 36 (1961), and the law is well established that the submission to a grand jury of some incompetent proof is not a ground for dismissing the indictment. See United States v. Nunan, 236 F.2d 576 (2d Cir. 1956), cert. denied, 353 U.S. 912, 77 S.Ct. 661, 1 L.Ed.2d 665 (1957); see also Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958) (illegally obtained evidence); Coppedge v. United States, 114 U.S.App.D.C. 79, 311 F.2d 128 (1962), cert. denied, 373 U.S. 946, 83 S.Ct. 1541, 10 L.Ed.2d 701 (1963) (perjured testimony). Hays’ testimony here constituted only a small part of the evidence presented to the grand jury, and appellants cannot, and in fact do not, dispute that at least some competent evidence was presented to the grand jury. That is sufficient to sustain the indictment. United States v. Tane, 329 F.2d 848 (2d Cir. 1964); Coppedge v. United States, supra.

Finally, as the Sixth point, appellants argue that the indictment should have been dismissed because Hays, without a court order as required by Rule 6(e), F.R.Crim.P., was given access to otherwise secret grand jury exhibits to help prepare his grand jury testimony. Apart from the question of whether appellants have standing to remedy the alleged breach of grand jury secrecy, the remedy in any case would not be to dismiss the indictment. Instead, as courts have recognized, if the Government abuses the grand jury in this way, a contempt citation will be adequate to halt any impropriety and to protect grand jury secrecy. See, e. g., United States v. United States District Court, supra, 238 F.2d at 721; In re Petroleum Industry Investigations, 152 F.Supp. 646 (E.D.Va.1957).

III. New Trial

Appellants contend that multiple trial errors, alone or cumulated, entitle them to a new trial. We disagree.

1. Appellants argue that the trial court violated their Sixth Amendment Right of Confrontation when it permitted two Government witnesses to testify as to declarations of deceased alleged co-conspirators. Appellants complain that “it is impossible to cross-examine a dead man.” Out-of-court statements of a co-conspirator, made in furtherance of the conspiracy and during its pendency, have long been held admissible in the federal courts as a settled exception to the hearsay rule. See Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953); United States v. Johnson, 466 F.2d 508 (5th Cir. 1972); United States v. Harvey, 464 F.2d 1286 (5th Cir. 1972); United States v. Williamson, 450 F.2d 585 (5th Cir. 1971), cert. denied, 405 U.S. 1026, 92 S.Ct. 1297, 31 L.Ed.2d 486 (1972); United States v. Fischetti, 450 F.2d 34 (5th Cir. 1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478 (1972); United States v. Nall, 437 F.2d 1177 (5th Cir. 1971); McGregor v. United States, 422 F.2d 925 (5th Cir. 1970); Holsen v. United States, 392 F.2d 292 (5th Cir. 1968), cert. denied, 393 U.S. 1029, 89 S.Ct. 640, 21 L.Ed.2d 573 (1969); Orser v. United States, 362 F.2d 580 (5th Cir. 1966); C. McCormick, Law of Evidence § 244 at 521-24 (1954); 4 Wigmore on Evidence § 1079 (3d ed. 1940); cf. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). The admission into evidence of statements made by a declarant who was dead at the time of trial has also long been permitted. See, e. g., Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892). Accordingly, “[t]he death of a coconspirator will not render inadmissible statements made by him during the pendency of the conspiracy.” 2 Wharton, Criminal Evidence 187 (12th ed. 1955). See Lewis v. United States, 38 F.2d 406 (9th Cir. 1930). Admission of these statements did not, therefore, constitute error.

2. Appellants assert that, in the trial court’s preliminary instructions to the jury, the court did not give appellants’ requested charge as to the distinction between direct and circumstantial evidence, and, according to appellants, the subsequent proper charge given at the close of the trial only confused the jury and did not cure the earlier error. This contention is meritless. Appellants fail to point out any alleged defects in the charge and do not show how the charge harmed them. We have carefully examined both charges, and any possible error in the preliminary charge was surely cured by the subsequent instructions.

3. Appellants object to the testimony of Roland Stevens, a Government witness. Stevens testified that, in the years 1955 to 1957, he encountered difficulties in operating a ready-mix concrete company in competition with appellant Anderson-Dunham, Inc. He further testified that, during the same period of time, Dunham attempted to force him to agree to divide the ready-mix concrete market between them. Appellants contend that this testimony was inadmissible because it recounted events remote in time to the period from 1966 to 1969 covered by the indictment. Although criminal defendants may not be convicted for acts occurring prior to the period of time spanned in the indictment, federal courts in antitrust cases have, for the purpose of showing intent, consistently admitted evidence of conduct prior to the time covered by the indictment. See, e. g., United States v. Reading Co., 253 U.S. 26, 40 S.Ct. 425, 64 L.Ed. 760 (1920); Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911); United States v. Schine, 260 F.2d 552 (2d Cir. 1958), cert. denied, 358 U.S. 934, 79 S.Ct. 318, 3 L.Ed.2d 306 (1959); Kansas City Star Co. v. United States, 240 F.2d 643 (8th Cir.), cert. denied, 354 U.S. 923, 77 S.Ct. 1381, 1 L.Ed.2d 1438 (1957); American Tobacco Co. v. United States, 147 F.2d 93 (6th Cir. 1944), aff’d 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946); United States v. Pullman Co., 50 F.Supp. 123 (E.D.Pa.1943), aff’d by an equally divided court, 330 U.S. 806, 67 S.Ct. 1078, 91 L.Ed. 1263 (1947); 2 Wigmore on Evidence § 302 (3d ed. 1940); cf. Federal Trade Commission v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010 (1948); Panotex Pipe Line Co. v. Phillips Petroleum Co., 457 F.2d 1279 (5th Cir. 1972). The jury was here instructed to consider this “background evidence” solely for the purpose of showing the purpose and character of the particular transactions covered by the indictment, so it was proper to admit evidence of a course of conduct engaged in in previous years to assist the jury in attempting to determine whether or not appellants possessed the requisite intent to restrain trade during the years covered by the indictment.

4. Appellants argue that their cross-examination of Wallace Heck, a Government witness, was unduly restricted by the trial court. Heck was an alleged victim of the charged conspiracy, and appellants sought to impeach his credibility by showing that he had settled a state court civil suit that had criminal implications. The trial court correctly sustained Government counsel’s objection to this line of questioning, because only prior convictions of felonies or of misdemeanors involving moral turpitude are admissible in evidence to impeach the credibility of a witness. Leary v. United States, 383 F.2d 851 (5th Cir. 1967), rev’d on other grounds, 395 U.S. 6, 89 S.Ct. 1532', 23 L.Ed.2d 57 (1969). See also Brown v. Coating Specialists, Inc., 465 F.2d 340 (5th Cir. 1972).

5. Appellants assert that the trial court erred in reading the indictment to the jury as part of the charge and in permitting the jury to take a copy of the indictment into the jury room. The trial court, both at the beginning of the trial and in its final instructions, specifically instructed the jury that the indictment was not evidence but was merely the formal manner by which the Government accuses a person of a crime. In the light of these clear instructions, and in the absence of a timely objection on either point, we hold that the trial court committed no error in reading the indictment to the jury, see Kroll v. United States, 433 F.2d 1282 (5th Cir. 1970), cert. denied, 402 U.S. 944, 91 S.Ct. 1618, 29 L.Ed.2d 112 (1971), nor did it abuse its discretion by permitting the jury to have a copy of the indictment present during their deliberations, see United States v. Smith, 460 F.2d 1323 (5th Cir. 1972); United States v. Green, 433 F.2d 946 (5th Cir. 1970).

6. Appellants object to a written message sent by the trial court to the jury. Appellants contend that the message imposed a deadline for reaching a verdict and “blasted them into a conviction.” The record does not show, however, what this written message stated, so we cannot speculate about its effects. Appellants did not request that the contents of this message be included in the trial transcript, nor have they sought to supplement the record under Rule 10(c), F.R.A.P. The burden of supplementing the record is on the party seeking to enlarge the transcript, and a failure to comply with Rule 10(c) leaves the matter outside the record. Browder v. United States, 292 F.2d 44 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 366, 7 L.Ed.2d 193 (1961). An appellate court cannot go behind the record, Smith v. United States, 343 F.2d 539 (5th Cir.), cert. denied, 382 U.S. 861, 86 S.Ct. 122, 15 L.Ed.2d 99 (1965), so appellants’ contention must be rejected for want of a sufficient record on appeal. Cf. Sanford Brothers Boats, Inc. v. Vidrine, 412 F.2d 958 (5th Cir. 1969).

Affirmed.

      . Congress has not enacted Title 15 of the United States Code into positive law, so the Statutes at Large take precedence over the codification. United States v. Welden, 377 U.S. 95, 98, 84 S.Ct. 1082, 12 L.Ed.2d 152 n. 4 (1964).


text:
    Charles LEE, Plaintiff-Appellant, v. Yamashita Shinnihon KISEN, Defendant-Appellee, J. P. FLORIO & CO., INC., Third Party Defendant-Appellee.
    No. 71-1094.
    United States Court of Appeals, Fifth Circuit.
    April 2, 1973.

      Frank S. Bruno, New Orleans, La., for plaintiff-appellant.
    James G. Burke, Jr., Thomas W. Thorne, Jr., B. Ralph Bailey, New Orleans, La., for J. P. Florio & Co., Inc.
    Before JOHN R. BROWN, Chief Judge, and MOORE and RONEY, Circuit Judges.

       Hon. Leonard P. Moore, Senior Circuit Judge of the Second Circuit, sitting by; designation.

   RONEY, Circuit Judge:

This appeal raises the question of whether the district judge properly transferred the case to the admiralty docket because the plaintiff failed to establish the requisite jurisdictional amount for a civil action, in which he would have been entitled to a jury. Holding that this is not one of those rare cases where it appears to a legal certainty that the claim is for less than the jurisdictional $10,000, we reverse and remand for a jury trial.

The action arises out of injuries suffered by the longshoreman plaintiff, Charles Lee, when he was loading cargo on a vessel. Plaintiff’s position is that the injury occurred because of the faulty and negligently placed dunnage flooring on the vessel. A 600-pound drum which Lee was moving fell into an aperture between layers of dunnage and onto a piece of dunnage that broke, causing the drum to smash the ring finger of his right hand.

Filed as a diversity suit under general maritime law, the complaint alleged negligence of the shipowner and unseaworthiness of the vessel and demanded a jury trial. At the conclusion of plaintiff’s case, the Court granted defendant’s motion for directed verdict on the negligence claim and submitted the unseaworthiness claim to the jury. When the jury deadlocked, the trial judge dismissed it, ruled that the plaintiff had failed to prove the jurisdictional amount requisite to civil jurisdiction, and transferred the cause to the admiralty docket. The Court rendered judgment for defendant on the merits, and plaintiff appealed. From the commencement of the lawsuit, the defendants had been urging the Court either to dismiss the cause for lack of jurisdiction or transfer it to the admiralty docket, and the trial judge frequently expressed doubt that the plaintiff could satisfy the jurisdictional requirements.

The action of a longshoreman for personal injury occurring on a vessel in navigable waters can be brought on the civil side of the federal District Court when there is diversity of citizenship, the requisite jurisdictional amount of the claim, and personal jurisdiction of the defendants, all present in this case. 28 U.S.C.A. §§ 1331, 1332; see M. Norris, Maritime Personal Injuries § 82. Plaintiff has the burden of proving to the Court that the damages sought meet the jurisdictional requirement. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). But to justify dismissal by the Court, it must appear to a legal certainty that the claim is really for less than the jurisdictional amount. St. Paul Mercury Indemn. Co., v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938); see Opelika Nursing Home, Inc. v. Richardson, 5 Cir., 448 F.2d 658 (1971).

For this reason, the trial judge, considering the jurisdictional amount claim on three separate occasions, each time deferred ruling on the question until the end of the trial. The Court’s basis for ultimately finding plaintiff’s jurisdictional claim was insufficient was that, even assuming that proposed, additional surgery were necessary, Lee had shown only nine weeks and two days of lost wages (approximately $1,850), minimal medical expenses, and residual disabilities which the Court thought suspect. In the Court’s view, the balance of the damages sought on the plaintiff's claim for pain and suffering could not bring the amount to the $10,000 level. The possibility of residual disability is the key to our decision.

After medical treatment, plaintiff returned to work, during his union’s strike, as a carpenter and then to his regular employment. Lee testified that his hand hurt every time he struck or strained his fingers and that this condition had continued for the two-year period prior to trial. Defendant endeavored to impeach plaintiff with subsequent contradictory testimony and with undisputed evidence that Lee had sought no medical care from the time of his discharge from immediate treatment in January, 1969, until shortly before the trial in July, 1970.

The employer’s doctor, who had treated Lee after the accident, testified that, although the bone chip had not united, the injury had healed routinely and the nonunited fracture would not cause any difficulty. Upon Lee’s complaints of pain, however, the doctor suggested minor surgery. Shortly before trial, plaintiff was examined by an orthopedic surgeon, who also found the fracture not to have united, but who did not recommend further surgery because of the possible discomfort from scar tissue which would be created by removal of the bone fragments. The surgeon did not testify, however, and his report was merely proffered in evidence.

Although discretion is vested in the trial court to determine whether the claim meets the jurisdictional amount, Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111 (1939), the standard— whether expressed in terms of good faith or legal certainty — clearly favors those parties seeking to invoke the jurisdiction of the federal court. See Opelika Nursing Home, Inc. v. Richardson, supra.

It does not appear to this Court that plaintiff’s jurisdictional claim was made in bad faith or that, if his evidence is taken as true and viewed most favorably to him, it can be said to a legal certainty that a reasonable jury could not have found the pain and suffering inherent in plaintiff’s claimed residual disability to be in an amount sufficient to invoke federal civil jurisdiction. We cannot agree, consequently, with the trial court’s dismissal of this civil action for lack of jurisdictional amount.

We affirm the trial court’s granting a directed verdict on the negligence claim. On remand, consequently, only the issue of unseaworthiness remains for consideration. It is unnecessary for us to consider the other points of plaintiff’s appeal which relate to alleged trial errors.

Reversed and remanded.