author: O’SULLIVAN, Senior Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William G. GOBLE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Terry Lee CARTER, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Raymond F. SHAD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Walter K. BYRD, Defendant-Appellant.
    Nos. 73-1764—73-1767.
    United States Court of Appeals, Sixth Circuit.
    March 5, 1975.

      Raymond Lape, Jr., Newport, Ky. (Court appointed), Andrew B. Dennison, Cincinnati, Ohio (Court appointed), Albert C. Hawes and Edward S. Monohan, Covington, Ky. (both Court appointed), for defendants-appellants.
    Eugene E. Siler, U. S. Atty., William Kirkland, Lexington, Ky., for plaintiff - appellee.
    Before PHILLIPS, Chief Judge, and EDWARDS, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge.
   O’SULLIVAN, Senior Circuit Judge.

We consider the appeal of four defendants, William G. Goble, Walter K. Byrd, Terry Lee Carter, Jr., and Raymond F. Shad, from convictions for participation in an automobile theft operation. Jury trial was had in the United States District Court for the Eastern District of Kentucky before the Honorable Mac Swinford.

For reasons stated herein, we affirm.

I. BACKGROUND

A 44-count indictment filed on September 21, 1971, named 24 defendants, including appellants, as having participated in a wide-ranging automobile theft operation involving 50 or more stolen cars. All defendants were charged in Count 1 with having conspired to commit various crimes against the United States, in violation of 18 U.S.C. § 371, which provides:

“§ 371. Conspiracy to commit offense or to defraud United States
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,-000 or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor;”

and some of them, including the appellants, were also charged with various substantive crimes in the remaining 43 counts. These counts alleged the transporting of stolen vehicles in interstate commerce, in violation of 18 U.S.C. § 2312:

“§ 2312. Transportation of stolen vehicles
Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both;”

the receiving, concealing and disposing of such vehicles, in violation of 18 U.S.C. § 2313:

“§ 2313. Sale or receipt of stolen vehicles
Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both;”

the transporting in interstate commerce of false, forged, altered or stolen securities, in violation of 18 U.S.C. § 2314:

“§ 2314. Transportation of stolen goods, securities, moneys, fraudulent State tax stamps, or articles used in counterfeiting.
Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud; or
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transports or causes to be transported, or induces any person to travel in, or to be transported in interstate commerce in the execution or concealment of a scheme or artifice to defraud that person of money or property having a value of $5,000 or more; or
Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities or tax stamps, knowing the same to have been falsely made, forged, altered, or counterfeited; or
Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce, any tool, implement, or thing used or fitted to be used in falsely making, forging, altering, or counterfeiting any security or tax stamps, or any part thereof—
Shall be fined not more than $10,000 or imprisoned not more than ten years or both . . .;”

and the aiding and abetting of such acts, in violation of 18 U.S.C. § 2. Twenty-seven stolen cars were identified in the indictment.

While the facts of the case are important to resolution of appellants’ claims, a complete recitation of the contents of the 13 volumes of trial transcript, amounting to 2,000 pages, would serve no useful purpose. We do, however, set out the following background. The indictment alleged that commencing in January of 1969, and continuing until September of 1971, a large auto theft ring operated in several states, including West Virginia, Illinois, Pennsylvania, Ohio, Indiana and Kentucky. The coordinator of the operation was one William Miller, (an unindicted co-conspirator) who, together with other defendants, stole cars from car lots and other locations, including rental agencies. When stealing from car lots their usual procedure was to obtain serial numbers for door and ignition keys, and to have duplicates made for vehicles that they planned to steal. Instruments such as bolt cutters were occasionally used to break through lot barriers, and drivers of the stolen cars were furnished with identification papers, license plates and other such material when necessary. Vehicles stolen from rental agencies were procured by using false identification papers.

After the cars were stolen, they were received by other defendants who either altered the vehicle identification numbers or sold them to still other defendants who performed the alterations. Such alterations were accomplished primarily by two methods: (a) the first involved removal of the stolen vehicle’s identification plate and replacement with an identification plate taken from a wrecked vehicle of similar model and' year; and (b) the second method involved use of stolen blank registration and title forms on which the vehicle’s true identification number and description were entered, after which the falsified documents were used to obtain title and license plates.

Ultimately, the cars which were the subjects of this vast and elaborate enterprise were either disposed of by sale to innocent purchasers or were retained for use by the defendants personally.

Of the 24 defendants named in the indictment, only eight were fully tried; the remaining defendants apparently entered guilty pleas prior to or during the trial. Of the eight tried, two were found not guilty on all counts; six were convicted of substantive offenses; and five were found guilty on the conspiracy count. Only the above-named four appellants have sought review of their convictions. Their numerous assignments of error will be discussed below. Each appellant was represented by his own retained counsel at trial and each now appeals, in forma pauperis, by his respective trial attorney.

All four appellants raise issues related to conspiracy and severance, and these issues are treated in Sections II and III, infra; Sections IV, V, VI, and VII deal with the various separate claims of error raised by Goble, Byrd, Carter and Shad respectively.

II. CONSPIRACY

As to the conspiracy count of the indictment (Count 1) appellants rely upon what has become a popular style of charging error, and assert that while the Government may have offered evidence to prove the existence of numerous, disconnected conspiracies, it failed to show that the indicted defendants were members of a single — or general — conspiracy. It is said that because Count 1 charged appellants with membership in a single conspiracy in violation of 18 U.S.C. § 371, the District Court erred in denying their various motions for judgment of acquittal on that count.

While the testimony of the more than 70 Government witnesses described the car theft activities, most witnesses could relate only isolated acts of the defendants. Only one witness, William Miller, was able to describe the actual scope of the ring’s activities and identify the respective appellants as participants. Although Miller (who was the kingpin of the operation) was named as a co-conspirator, he was not a defendant in the case; but at the time of trial, he was serving a three-year prison term on other charges arising from his conduct in the total enterprise.

While the trial was in progress, all of the appellants were seated in the courtroom, and as a preliminary question on direct examination Miller was asked: “First of all, as you look around the courtroom ... do you see anyone that you have known in the car stealing business?” His answer was: “Well, I know all of the defendants, yes” and he added that, “ . . . the activities involving each person varied at times. We did many things together. Sometimes we stole cars, sometimes we sold cars, sometimes we retitled.” He was then asked to point out any of his co-conspirators who were present, and in response he named, with others, the four appellants, William G. Goble, Walter K. Byrd, Terry Lee Carter, Jr., and Raymond Shad. He told of the use of fraudulent title papers and when he was asked which of the defendants seated in the courtroom joined in such activity, he answered: “All of the defendants.” When asked: “Who else helped you transport interstate stolen cars knowing that those cars were stolen?”, Miller first responded by his own question: “Of the defendants left?” Receiving the answer, “Yes,” to this, he named four persons, including appellants Shad and Byrd.

In addition to his own involvement in stealing and disposing of cars, Miller acted as coordinator for those defendants who stole ears and for those who sold them. He described his role as follows:

“Q Did you say that you hired people to go get cars?
A Yes.
Q When you hired them to go get a car, what did you furnish to them?
A The key normally, bolt cutters, anything else they might need.
Q What about license plates?
A License plates, title receipts, so forth and so on.
Q What about identification?
A Driver’s license, normally accompanied with a credit card of some type.
Q Where did you get the credit cards?
A I purchased them or was given them by various people. * * * * *
Q How many people did you have working for you to pick up the stolen cars?
A Well, when you say ‘working for me’, actually what would happen is if I needed a car and I knew different people were available to go get a car, or if I needed someone to help sell a car, I just contacted at random, just different people who I had been involved with or associated with previously. And many times, I — they would introduce me to other people and consequently I think this is why there was actually so many people involved with this thing all ended up.”

After automobiles were stolen in this manner, Miller paid three or four hundred dollars for them and then sold them, either personally or through other participants in the theft ring. For example, approximately 12 stolen cars were sold by Miller, in conjunction with Ernest Byrd and appellant Shad, to Latonia Springs Auto Parts, a salvage yard in Covington, Kentucky. The owner of that business, Ronald Heines, testified that he and one Russell Mclntire purchased the cars for an average price of $1,300 which included blank Kentucky registration papers. Both Mclntire and Heines were aware that the cars they purchased from Shad and Ernest Byrd were stolen.

Miller also described the means whereby stolen vehicles were fraudulently titled. He testified that appellant Goble had showed him how to remove a vehicle identification plate from a stolen car and replace it with a plate from a wrecked car of the same model. This practice was also carried on by Ernest Byrd and appellant Walter K. Byrd. Miller also stated that he and appellant Goble occupied the same apartment and during that time they both purchased blank titles which were used in the sale of stolen cars.

The remaining testimony of Miller described how the cars identified in the various counts of the indictment were stolen. He recalled some of the participants in each theft, where each vehicle was stolen, and in most cases the ultimate purchaser of the car.

In reviewing appellants’ convictions under the conspiracy count, our task is to determine whether the above facts and others in the record in total are sufficient to show that there was a general agreement and an objective among the various defendants to steal, transport and re-sell cars, as charged in the indictment, or whether there were merely numerous, separate agreements constituting multiple conspiracies.

The evidence presented at trial shows clearly that not all four appellants participated in each of the car thefts. It is well settled, however, that, “[cjonspiracy law does not require a direct connection with all coconspirators in the sense of person-to-person communication, or even specific knowledge of their identities.” United States v. Greer, 467 F.2d 1064, 1070 (7th Cir. 1972), cert. denied, 410 U.S. 929, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973). See also United States v. Jones, 425 F.2d 1048, 1051 (9th Cir. 1970), cert. denied, 400 U.S. 823, 91 S.Ct. 44, 27 L.Ed.2d 51 (1970); United States v. Andolschek, 142 F.2d 503, 507 (2d Cir. 1944).

Even though in this case the overt acts charged in the indictment occurred over a period of years and involved various combinations of defendants, it was still possible for the jury reasonably to conclude that one conspiracy existed. Moreover, proof establishing the conspiracy was not limited to that supplied by its chief architect, Miller; rather, many relevant pieces and fragments were supplied by other Government witnesses.

In United States v. Nasse, 432 F.2d 1293 (7th Cir. 1970), cert. denied, 401 U.S. 938, 91 S.Ct. 927, 28 L.Ed.2d 217 (1971), 402 U.S. 983, 91 S.Ct. 1657, 29 L.Ed.2d 148 (1971), the Seventh Circuit was faced with an automobile theft operation similar to the one here. The indictment in Nasse contained 30 counts, one of which charged 13 defendants with a conspiracy in stealing motor vehicles, stealing vehicle identification plates from other vehicles and attaching them to the stolen vehicles, preparing counterfeit state titles and transporting the stolen vehicles. One central figure was found to have supervised the theft operations which involved cars stolen in Illinois and Indiana and subsequent sales in Ohio, California, Missouri, Pennsylvania, Indiana and Illinois.

In affirming the defendants’ convictions on the conspiracy count, the Court stated:

“Here . . . the defendants knew that illegal acts on the part of a chain of participants — thieves, counterfeiters, camouflagers, people to transport the stolen autos, and salesmen — were necessary to the total operation. if! * Sfc * * *
“It is true that the participants other than Herman [the central figure] (and perhaps his sons) changed from time to time. Some were shown to have been added and some withdrew, but the participation of some overlapped the participation of others. We deem it reasonable to consider the operations as those of a going concern, understood by all to be so, with changes in personnel, rather than as separate transactions or groups of transactions.” 432 F.2d at 1297.

We are persuaded that the present case, like Nasse, presents a single conspiracy. Although William Miller was the only individual identified as being associated with nearly all of the auto thefts, there was evidence from which the jury could conclude that the other defendants were cognizant of, and agreed to assist in, an ongoing operation. A fair reading of Miller’s testimony, together with that of other Government witnesses, strongly supports the conclusion that the auto theft operation was more than a series of isolated, independent acts. Similar methods of stealing the cars and altering their identification numbers, common outlets for distribution, and the acquaintance of the defendants with others involved in the operation are evident from the record. The absence, or withdrawal, of some defendants from some acts of the theft ring do not change the character of the conspiracy. See, Blumenthal v. United States, 332 U.S. 539, 558-59, 68 S.Ct. 248, 92 L.Ed. 154 (1947); United States v. Nasse, supra, 432 F.2d at 1297; United States v. Varelli, 407 F.2d 735, 742 (7th Cir. 1969); United States v. Levinson, 405 F.2d 971, 985 (6th Cir. 1968), cert. denied, 395 U.S. 906, 89 S.Ct. 1746, 23 L.Ed.2d 219 (1969), 395 U.S. 958, 89 S.Ct. 2097, 23 L.Ed.2d 744 (1969).

III. SEVERANCE

Each appellant asserts that he should have been granted a separate trial. Having determined that there was sufficient evidence to support the charge of a single conspiracy, we believe the District Judge did not err in refusing to grant appellants’ motions for severance. Rule 14, Fed.R.Crim.P., authorizes the granting of a severance, but the grant or denial of such a motion is a matter within the discretion of the District Judge. Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101 (1954); United States v. Vaughn, 422 F.2d 812, 813 (6th Cir. 1970); United States v. Jackson, 409 F.2d 8, 9 (6th Cir. 1969); United States v. Vida, 370 F.2d 759, 765 (6th Cir. 1966), cert. denied, 387 U.S. 910, 87 S.Ct. 1695, 18 L.Ed.2d 630 (1967). Notwithstanding the length of the trial (11 days), and the number of witnesses called (79), and the fact that not all of the testimony of each witness related to each appellant, we find no abuse of discretion in denying the motions for severance.

IV. WILLIAM G. GOBLE

A. Count 6 (Variance)

Goble first asserts that the District Court erred in refusing to dismiss Count 6 of the indictment because of an asserted variance between pleading and proof, in that the indictment referred to transportation in interstate commerce of a stolen 1967 Cadillac Eldorado, whereas the relevant evidence showed that the vehicle in question was a 1967 Cadillac Coupe DeVille.

In ruling upon Goble’s motion, the District Judge stated that the variance between the described body style and the actual body style was not a material one, and we agree.

The rule in this Circuit for determining whether there is a legally significant variance between the indictment and evidence was well stated in United States v. Mills, 366 F.2d 512 (6th Cir. 1966):

“A variance is not to be regarded as material where it is not of a character which could have misled the defendant at the trial, Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314; or where it involves no element of surprise prejudicial to the efforts of the defendant to prepare his defense, United States v. Ragen, 314 U.S. 513, 526, 62 S.Ct. 374, 86 L.Ed. 383, rehearing denied, 315 U.S. 826, 62 S.Ct. 620, 86 L.Ed. 1222; or where it does not affect substantial rights. Rule 52(a), F.R. of Crim.P.; cf. United States v. Haskins, 345 F.2d 111, 114 (C.A. 6). ‘Whether or not a variance is prejudicial is a judgment that must be made on the facts of each case.’ United States v. Russano, 257 F.2d 712, 715 (C.A. 2).” 366 F.2d at 514.

See also United States v. Crowder, 346 F.2d 1 (6th Cir. 1964), cert. denied, 382 U.S. 909, 86 S.Ct. 249, 15 L.Ed.2d 161 (1965). Defense counsel did not contend that the error in the indictment surprised or prejudiced appellant Goble, and we believe that his contention of a material variance is without merit.

B. Counts 1 and 6 (Sufficiency of Evidence)

In Section V of the overt acts portion of Count 1 of the indictment (conspiracy), it was alleged that Goble transported a 1967 Cadillac DeVille [sic] from Covington, Kentucky, to Cincinnati, Ohio, for the purpose of obtaining false registration; and, in Count 6 of the indictment it was charged that Goble transported in interstate commerce a stolen 1967 Cadillac Eldorado, knowing the vehicle to have been stolen. The same vehicle was the subject of both allegations, and in this appeal Goble asserts that there was no showing at trial that he transported the car in interstate commerce.

Testimony at trial showed that a blue 1967 Cadillac Coupe DeVille had been stolen from the Jim Tilly, Inc., used car lot in Lexington, Kentucky, on or about July 15, 1969. William Miller testified that he, Michael Collins, and appellant Raymond Shad had stolen the car and that they delivered it to appellant Goble in Covington, Kentucky for $300. Miller stated that, immediately after selling the car to Goble, he (Goble) removed the vehide identification number plate and installed a different one.

On July 18, 1969, Goble sold this same automobile to one Gregory Ehlman, in Newport, Kentucky. Ehlman testified that he had met Goble at the Kentucky Ford dealership where Goble was employed as a salesman, and that when he agreed to purchase the automobile, it had Kentucky license plates, which Goble told him belonged on a car owned by Goble’s wife. The two men then went together to a bank in Newport, Kentucky, so that Ehlman could finance the purchase of the Cadillac. Prior to entering the bank, Goble advised that Ehlman would have to pay eight-Jiundred dollars over the amount — three thousand dollars — which Ehlman could likely obtain from the bank (making Goble’s “take” on the deal $3,800.00). Ehlman testified that Goble told him not to mention the extra sum of $800 to the banker, because he (Goble)

“was selling these cars besides working over there at the Ford dealer and he didn’t want them [the dealer and the banker] to know about him selling these cars on the side and he told me that he bought a fleet of them and he was selling them, so I figured it was a pretty good deal, he bought quite a few and they were cheaper that way.”

Ehlman further testified that when he and Goble went into the bank

“we sat down and Mr. Goble was right there with me . . . and told him [the banker] the price of the car, not including the eight-hundred dollars that he told me outside not to mention when we got inside. So Mr. Knauf [the banker] was a pretty good dealer, he looked it up in his book and he financed the car and typed out the cheek for Mr. Goble and then we left. Then Mr. Goble — there was no tax on the car and he didn’t have the title to it at the time. He said that he had to get the title and get it straightened out. Mr. Knauf [the banker] asked for the title also. So at that time we went over to Cincinnati to a Ford dealer down in the bottoms over there, I believe it was Fuller Ford, and he went in to try to get a temporary tag and came back out and he said he couldn’t, ‘no good’ [sic] on a temporary tag there. But what the reason was I don’t know. We took the car then down to my place of work in Ludlow and I talked to my boss about it.” (Emphasis added)

Ehlman operated the Cadillac for a short time with license plates belonging to the car owned by Goble’s wife but when he began having mechanical trouble with it, he traded it in at Riverside Ford (Goble’s regular place of employment) in Newport, Kentucky. According to Ehlman, it was not until he traded the Cadillac for a different automobile that Goble supplied him with an Ohio title.

Although the number on the vehicle identification plate of the automobile purchased by Ehlman differed from the number of the car stolen from Jim Tilly, Inc., the evidence at the trial leaves no doubt that the same car was involved — i. e. the 1967 Cadillac Coupe DeVille which Goble sold was in fact the one stolen from Jim Tilly, Inc.

We are satisfied that the witness Ehlman’s words “the car” referred to the stolen 1967 Cadillac Coupe DeVille which Goble sold to Ehlman, and that the words, “we went over to Cincinnati,” referred to a journey from Newport, Kentucky to Cincinnati, Ohio, taken together by Goble and Ehlman, in the stolen car.

In reviewing the sufficiency of evidence with respect to appellant’s interstate transportation of the vehicle, the jury’s determination “must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it,” Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 .L.Ed. 680 (1942), and that view of the evidence includes “inferences reasonably and justifiably to be drawn therefrom.” Battjes v. United States, 172 F.2d 1, 5 (6th Cir. 1949). See also United States v. Rosinski, 487 F.2d 822, 823 (6th Cir. 1973); United States v. Milby, 400 F.2d 702, 705 (6th Cir. 1968); United States v. Decker, 304 F.2d 702, 705 (6th Cir. 1962); United States v. Berkley, 288 F.2d 713, 716 (6th Cir. 1961), cert. denied, 368 U.S. 822, 82 S.Ct. 41, 7 L.Ed.2d 27 (1961).

We hold that there was evidence from which the members of the jury could properly find, as they did, that the Cadillac sold by Goble to Ehlman had been stolen to the knowledge of Goble and that he joined in the interstate transportation of it.

C. Counts 23 and 24

Goble also challenges his conviction on Count 23 (receiving and concealing a 1967 Cadillac Coupe DeVille moving in interstate commerce) and Count 24 (transporting the same vehicle in interstate commerce). Appellant contends that this automobile was not shown to have travelled interstate from Cincinnati, Ohio, to Covington, Kentucky, as alleged in the indictment.

The car in question was originally stolen from the lot of Cal Conell Cadillac Corporation, in Louisville, Kentucky, on or about July 26, 1969, at which time it had a Kentucky registration and license plate. Subsequently, the vehicle identification number plate was changed. William Miller testified that he stole this particular car, and that he gave it to appellant Goble. On October 3, 1969, Goble sold this automobile in Kentucky to Winfred Gray, a resident of Cincinnati.

The Government proceeded to show interstate involvement of the automobile through the chain of title. Government Exhibit 34 was an Ohio title issued August 12, 1969, to one John E. Moore of Cincinnati, for the 1967 Cadillac, with the changed vehicle identification number. This automobile, according to the title, had been previously registered in Kentucky. The title paper further purported to show that on August 15, 1969, the car was sold to appellant Goble for $3,500.00. On that date, Goble applied for and received a Kentucky registration at the Kenton County Clerk’s Office. As proof of ownership, he presented the above-mentioned Ohio title. When appellant sold the car to Winfred Gray on October 3, 1969, he (the buyer) also was issued a Kentucky registration document.

Russell Simmons, Clerk of the Court in Clermont County, Ohio, testified that in order to acquire an Ohio title for an out-of-state car, the car must be physically inspected within the state of Ohio. According to William Miller, no Ohio title was acquired prior to the time that he gave the car to Goble. Miller further testified that appellant Goble kept the car and drove it for a few months with the changed vehicle identification number.

When the above evidence is viewed in a light most favorable to the Government, Glasser v. United States, supra, 315 U.S. at 80, 62 S.Ct. 457, it must be said that there was sufficient proof of interstate transportation of the involved car by Goble. Since appellant Goble was given the car shortly after it was stolen and he thereafter drove it himself for several months, it is a fair inference that Goble procured the Ohio title; and since acquisition of an Ohio title required the presence of the vehicle within the state of Ohio, its transportation to that state could be attributed to Góble. We find no error in the jury’s finding that this 1967 Cadillac was transported in interstate commerce by appellant.

D. Count 22

Count 22 charged Goble with receiving and concealing a 1968 Chevrolet Corvette moving in interstate commerce, in violation of 18 U.S.C. § 2313. It is appellant’s claim that he did not receive and conceal the automobile, and that if he did, the car was no longer in interstate commerce when the receipt and concealment took place.

William Miller testified that the above-described automobile was stolen from Xenia, Ohio, in July or August of 1969, and was taken to Kentucky where it was retitled by Miller. Miller also stated that after he had driven the Corvette for approximately two months, Goble suggested that he sell the car to Riverside Ford, the dealership where Goble and defendant Harry Carter, Sr. were employed.

According to the then general manager of Riverside, Miller did trade in a 1968 Corvette on September 4, 1969, and both appellant Goble and defendant Harry Carter took some part in the trading. In return for the Corvette, Miller received a 1967 Ford Mustang and a check for $1,500.00, which amount was divided among Miller, Goble and Carter. Miller further testified that the Mustang which he received in the transaction just mentioned was later sold by him and that he and Goble divided the proceeds from that sale. These events took place while Miller and appellant Goble were occupants of the same apartment.

Although the above evidence does not show that appellant Goble personally received or concealed the involved automobile, it does show that his participation was sufficient to support a guilty verdict on the ground that he aided and abetted Miller in receiving and concealing it. 18 U.S.C. § 2. An instruction to this effect was given to the jury.

We are also convinced that the period during which Miller used the car did not terminate its interstate character. In Schwachter v. United States, 237 F.2d 640 (6th Cir. 1956), this Court said that “the interstate movement of a car does not necessarily cease when the car stops and transportation of it into the other state ends.” 237 F.2d at 644. The Court went on to say:

“But its character of being a part of interstate commerce does not continue indefinitely after its transportation ends. After a period of time and depending upon what is done with the car, it may no longer be correct to treat it as moving in interstate commerce. Grimsley v. United States, 5 Cir., 50 F.2d 509; Davidson v. United States, 8 Cir., 61 F.2d 250, 255. The acquisition of the car and later sale of it by a person who is in no way connected with the theft and transportation may be under such circumstances as to terminate its interstate character. It is a question of fact under the surrounding circumstances in each particular case. Being a question of fact it is for the jury to determine. Parsons v. United States, 5 Cir., 188 F.2d 878; United States v. Gollin, 3 Cir., 166 F.2d 123, certiorari denied 333 U.S. 875, 68 S.Ct. 905, 92 L.Ed. 1151; Seefeldt v. United States, 10 Cir., 183 F.2d 713, 715.” Id.

Viewing the above-recited evidence in light of the Schwachter standards, we believe that it was within the province of the jury to determine that the involved automobile retained its interstate character. It apparently was not uncommon for those participating in the car theft ring to use a stolen car personally for a period of time and to dispose of it at a later time. There was sufficient evidence for the jury to conclude that this practice had occurred with respect to the 1968 Corvette and such a finding would support a guilty verdict on Count 22.

E. Counts 8 and 38

Appellant Goble was charged in Count 8 with aiding and abetting William Miller in the interstate transportation of a stolen 1969 Ford Econoline, and in Count 38 with aiding and abetting Michael Jerome Collins and Earl Francis Crump in the interstate transportation of a stolen 1970 Oldsmobile Toronado. While apparently conceding that Miller’s testimony supported these charges, appellant argues that “[t]he only evidence of any nature pertaining to the aiding and abetting was presented by the witness Miller, and other witnesses having the opportunity of knowledge of the same events contradicted Miller’s testimony . . ., or Miller provided the only evidence . . ..”

It was for the jury to determine the credibility of the witnesses at trial, including William Miller. Stripped of its rhetoric, Goble’s contention with respect to Count 8 and Count 38 is simply an invitation for this Court to usurp the function of the trier of fact. We decline to do so.

F. Jury Instruction re Testimony of Accomplice

In instructing the jury, the District Judge pointed out that William Miller, together with various other witnesses who testified, were accomplices. His instruction on this subject was as follows:

“Now, you have here in this case several defendants who have testified here, who have pled guilty to the charges contained in this indictment. McQuearry, I believe his name was, McIntyre, Miller, who is named as a conspirator, though not a defendant, because he was heretofore been convicted or entered a plea of guilty to matters growing out of these same incidences, according to the evidence, and possibly others who were named as conspirators who have entered pleas of guilty. Now those defendants are accomplices. In other words, they admit that they did it and they are testifying in the case as to what occurred. And so you are instructed that you should scrutinize very carefully their testimony and weigh it with some degree of suspicion as to whether or not it is true. Simply because they are admitting that they did these things and as accomplices, it is the law that their statements on the witness stand should be carefully scrutinized; not that you shouldn’t carefully consider all evidence, but because they are conspirators their testimony should be weighed.”

Goble does not challenge the correctness of the instruction on the weight to be given to the testimony of an accomplice. Instead, he asserts that the District Judge confused the jury with a later observation about Miller, in particular:

“The United States says that Miller was corroborative of what had already been proven, that these other facts have already been proven and that Miller filled in the gap, so to speak, that they would have had a case even without Miller, . . . .”

Upon our review of the entire record in this case, we believe that this comment accurately states the Government’s reason for using Miller as a witness. It does not, however, indicate that the Court agreed with the Government or that the jury’s role as fact finder was being limited; and, therefore, it was not error.

We also note that at the time the specific instruction about Miller was given, the District Judge stated that Miller was “naturally under attack; by his own admission he is a thief and a robber and one who was not subject to bear a good reputation, . . . ” The jury was then told to “ . . . judge Miller’s testimony as to whether you believe he was telling the truth here on the witness stand . . . whether what he told you from the witness stand was or was not true, and that is true of all witnesses, both witnesses for the United States and the defendants.”

We find nothing improper in the above instructions.

G. Right to Remain Silent

At the request of one or more of the defendants, but over appellant Goble’s objection, the District Judge instructed the jury that the defendants could not be required to testify, and that the jury was to give no consideration to the fact that a defendant did not testify. The procedure employed by the District Judge was proper. See United States v. Epperson, 485 F.2d 514, 516 (9th Cir. 1973); United States v. Schroeder, 433 F.2d 846, 851 (8th Cir. 1970), cert. denied, 400 U.S. 1024, 91 S.Ct. 590, 27 L.Ed.2d 636 (1971), 401 U.S. 943, 91 S.Ct. 951, 28 L.Ed.2d 224 (1971); United States v. Russo, 413 F.2d 432, 434 (2d Cir. 1969); United States v. Kelly, 349 F.2d 720, 768 — 69 (2d Cir. 1965), cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966).

V. WALTER K. BYRD

A. Count 28

Appellant Byrd’s motion for a direction of acquittal of the offense charged in Count 28 — interstate transportation of a 1970 Mercury station wagon from Boone County, Kentucky, to Cincinnati, Ohio — was denied. He now challenges the sufficiency of the Government’s evidence.

The automobile in question was rented from the Hertz Rent-A-Car desk at the Greater Cincinnati Airport in Boone County, Kentucky, on June 3, 1970. An attendant at the Hertz place of business — one Sue Young — testified that a man who identified himself as William Banchy rented a 1970 Mercury station wagon, and that this same car was subsequently reported as stolen and was ultimately recovered on October 14, 1970. At trial, the witness Young testified that the man who had posed as William Banchy was defendant Gary Shirk. Shirk had admitted his participation in acquiring the car when interviewed by an FBI agent.

Some time in August, a 1970 Mercury station wagon was brought to Bob’s Motors used car lot in Cincinnati^ Ohio, and was sold to the lot owner, Robert Lee Chambers. Chambers testified that the involved automobile was brought to his car lot by William Miller and appellant Walter Byrd; and a witness, who was present at the lot when negotiations for sale and purchase were carried on, testified that representations were made by both Byrd and Miller that Byrd owned the car.

William Miller testified that he and appellant Byrd sold the 1970 Mercury station wagon to Robert Lee Chambers in Cincinnati, Ohio, and that this car had originally been rented by Gary Shirk from Hertz. We note the following from Miller’s testimony:

“A. We sold the car, the Mercury station wagon to a Mr. Bob Chambers at Eighth and State Streets in Cincinnati, who was a used car lot [sic] and who I was introduced to by Harry Carter, Sr.” * * * * * *
Q. Now, what were the arrangements on this particular station wagon that was sold over there?
A. Well, we sold the station wagon, Kenneth Byrd, Gary Shirk — I have to say that — disregard Gary Shirk because simply at that time he was later on arrested using one of these credit cards. $ * * * * *
A. Well he [Shirk] was not present, he was in jail. Kenneth Byrd, myself—
Q. When you say Kenneth Byrd, what is the full name?
A. Walter Kenneth Byrd. We sold the car to Bob Chambers.”

Viewing the evidence in the light most favorable to the Government, together with all reasonable inferences, Glasser v. United States, supra, 315 U.S. at 80, 62 S.Ct. 457, and related cases previously set out herein, we hold that there. was sufficient evidence identifying the automobile rented by Shirk as being the same one sold to Robert Lee Chambers by Walter K. Byrd. When read together, the testimony of William Miller, Sue Young and Robert Lee Chambers adequately identifies the automobile listed in Count 28 as being the one stolen by defendant Shirk.

Appellant Byrd argues that there was no evidence that he had transported the vehicle in interstate commerce, but in United States v. Johnson, 412 F.2d 787 (6th Cir. 1969), cert. denied, 396 U.S. 993, 90 S.Ct. 489, 24 L.Ed.2d 456 (1969), an automobile theft case, this Court said:

“Although the only evidence of appellant’s guilt is circumstantial, appellee contends, and appellant concedes, that recent unexplained possession by a defendant of a stolen motor vehicle in another state permits an inference that he stole it and suffices to support a conviction that he transported it interstate commerce. See, e. g., United States v. Bennett, 356 F.2d 500 (7th Cir. 1966), cert. den., 384 U.S. 975, 86 S.Ct. 1868, 16 L.Ed.2d 685 (1966); Beufve v. United States, 374 F.2d 123 (5th Cir. 1967), cert. den., 389 U.S. 881, 88 S.Ct. 122, 19 L.Ed.2d 175 (1967); United States v. Messina, 388 F.2d 393 (2d Cir. 1968), cert. den., 390 U.S. 1026, 88 S.Ct. 1413, 20 L.Ed.2d 283 (1968).” 412 F.2d at 788.

In support of his position, Byrd cites this Court’s decision in United States v. LaRose, 459 F.2d 361, 364 (6th Cir. 1972), in which a conviction was reversed, inter alia, for the reason that application of the rule expressed in United States v. Johnson, supra, 412 F.2d at 788, is limited to instances in which the car was “recently stolen.” In LaRose, however there was an interval of almost two years between the theft and the appellant’s possession of the stolen vehicle in another state, while in the case before us the interval between the theft of the vehicle in Kentucky and its sale by appellant in Ohio was only from June 3, 1970, to a day in August of the same year. Therefore, we conclude that there was no failure of proof on Count 28 as to appellant Byrd.

B. Count 32

In Count 32 appellant Walter K. Byrd and two others were charged with the transportation of a stolen 1970 Chevrolet Impala in interstate commerce from Newport, Kentucky to Indianapolis, Indiana, and Byrd again raises the issue of sufficiency of the evidence.

Harold Mays, the lease manager of Campbell County Motors, Newport, Kentucky, testified that a 1970 Chevrolet Impala was leased from his agency on July 14, 1970, by a man identifying himself as Kenneth W. Hicks. The car was never returned. An employee at Campbell County Motors, Anita Estridge, testified that the man posing as Hicks was in fact appellant Walter K. Byrd.

The car thus leased from Campbell County Motors was later found abandoned near Gainesville, Georgia on September 24, 1970. Among the articles found in the automobile at that time was a note which stated:

“Terry
Call me soon as you get back
683-4836
Ken.”

The indicated phone number was listed under the name of Sherry Byrd, wife of appellant Walter K. Byrd, who was also referred to as Kenneth Byrd.

William Miller testified that the involved vehicle had been leased by Byrd using identification papers of a man named Hicks, and that Miller and defendant Terry Boothe, had driven the car to Georgia after it had been damaged. Miller also testified that the involved car had been driven to Ohio where it was wrecked and that Walter Byrd with defendants Gary Shirk and Terry Boothe were in the car when the wreck occurred. He then went on to say that the car had previously been driven to Indianapolis, Indiana, and when asked who was in the car when it was driven to Indianapolis, Miller said: “All three of us.”

The Government did not specifically clarify the above testimony regarding who was ip, the car in Indianapolis; but we are .of the view that, in context, the words, “all three of us,” could be fairly interpreted by the jury as identifying Boothe, Shirk and appellant Walter Byrd, particularly in light of the very next exchange between Government counsel and witness Miller, which exchange was obviously premised upon the presence of four persons (including Miller);

“Q. How long was that ’70 Chevrolet Impala in either those three persons’ possession or in your possession?
“A. Well, I don’t know how long they had it before they came to me 77
C. Evidence of Misconduct Not Charged in the Indictment

Byrd’s final assignment of error is based upon the admission of testimony regarding criminal conduct not charged in the indictment. Such testimony, it is said, was prejudicial as to this appellant.

Reference to the criminal conduct — an attempted burglary of a fur company in Anderson, Indiana — was first made by a member of the Anderson police department. The officer testified that on November 1, 1970, he was called to investigate a report of an attempted burglary of a fur company, that during his investigation two cars, including a 1970 Pontiac were discovered, and that William Miller and appellant Byrd were arrested.

Although the officer mentioned the fact that these arrests were a result of his being called to the burglary, the District Judge, upon objection by defense counsel, did not allow the witness to give details of the burglary.

The second reference to the burglary was by William Miller. He testified that after defendant Gary Shirk rented a 1970 Pontiac in Dayton, Ohio, Miller, Shirk and appellant Shad drove the car to Indiana. The following from his testimony is relevant:

“Q What did you do then after you couldn’t license it [the rented car]?
A On that weekend we drove the car and attempted to commit a burglary in Indiana, in that particular car. its * * * * *
Mr. Hiltz: I move to strike that. We are not talking about a burglary here.
The Court: Overruled. He may tell the circumstances. * Us * sts , * *
Q All right, when you got to Anderson, what did you do?
A We, so to speak, cased a fur store about two blocks, from their aunt’s house and later on, on a Sunday night of that weekend we were arrested attempting to burglarize this fur store.
Q Who arrested you?
A The Anderson City Police Department.
Q How were you arrested? How did they happen to catch you?
A They—
The Court: Objection sustained. I don’t think there’s any point in going into the details of that incident.”

The above testimony, like that of the policeman, was relevant to a particular act which the Government alleged was part of the conspiracy. The testimony of both witnesses dealt with the theft of a 1970 Pontiac after it had been rented by one of the defendants in Ohio, and as indicated by the District Judge, the circumstances of the arrest of appellant and Miller were relevant.

The principle governing admission of evidence of misconduct not charged in the indictment was stated by this Court in Grant v. United States, 255 F.2d 341 (6th Cir. 1958), cert. denied, 358 U.S. 828, 78 S.Ct. 48, 3 L.Ed.2d 68 (1958):

“In Harper v. United States, 99 U.S. App.D.C. 324, 239 F.2d 945, 946, the rule here applicable was stated as follows: ‘The general rule is that upon the trial of an accused person the prosecution may not introduce evidence of another offense wholly independent of one charged. However, there are many well established exceptions to this rule, so numerous that it has been said that it is difficult to determine which is the more extensive, the doctrine or the acknowledged exceptions. This Court has admitted evidence of other criminal acts when those acts (1) are so blended or connected with the one on trial that proof of one incidentally involves the other, (2) they explain the circumstances of the offense charged, or (3) they tend logically to prove any element of that offense.’. The evidence of the other crime of which appellant complains, is clearly within the purview of the exceptions above mentioned, and was properly admitted by the trial court.” 255 F.2d at 342.

See also United States v. Clark, 437 F.2d 942, 944 (6th Cir. 1971); 1 J. Wigmore, Evidence, § 216 (3rd Ed. 1940).

Under the rule stated in Grant, we believe the District Judge was justified in permitting the witnesses to testify regarding the circumstances of the arrest. As the Government correctly argues, this event was blended with the prior acquisition of the 1970 Pontiac and subsequent attempt to conceal it by using false identification and registration papers. Walter K. Byrd was charged in the conspiracy count and the evidence of the events in Indiana was relevant to that charge.

VI. TERRY LEE CARTER, JR.

Appellant Carter asserts that there was insufficient evidence to support his conviction under Count 2 — receiving and concealing a stolen motor vehicle moving in interstate commerce— in that there was no proof that the car in question had been stolen.

The involved car was a 1968 Cadillac Eldorado. William Miller testified that he, together with appellants Shad and Byrd, stole the car in Champaign, Illinois, in June or July of 1969, and thereafter sold it to appellant Carter (who had previously ordered it from Miller). The sale was for $1,000, a sum which Miller estimated as at least $3,000 below the true value of the car. Carter was aware that Miller filled orders for cars by means of thievery, and that the specific Cadillac that Miller obtained for him was stolen. On September 12, 1969, appellant Carter was arrested by the Covington, Kentucky police while driving the stolen vehicle.

The sum of Carter’s contention is that the Government attempted to prove that the 1968 Cadillac had been stolen from its owner, Gene Smith Auto Sales in Champaign, Illinois, but failed to do so, because the last entry on the title documents kept by the Illinois Secretary of State showed one Robert DeLong, rather than Gene Smith Auto Sales, as the owner of record. This assertion is specious.

It is true that the Secretary of State’s record showed DeLong as the last registered owner of the vehicle; but business records admitted into evidence showed that on June 6, 1969, DeLong had traded the car in to Gene Smith Auto Sales for a newer model. Moreover, the owner of the dealership testified that, in Illinois, assignments of automobile titles to dealers are not submitted to the Secretary of State for recording until the automobile is resold to an individual purchaser.

Thus, the testimony and documentary evidence clearly established that Gene Smith Auto Sales owned the 1968 Cadillac (which was the subject of Count 2 of the indictment) when it was stolen.

VII. RAYMOND F. SHAD

Appellant Shad’s principal allegation of error concerns the District Court’s refusal to exclude the testimony of one Mae McComb, who, as a Government witness, revealed various facets of the auto theft ring’s operation, including meetings between Shad and other defendants, her own conversations with Shad concerning the stolen cars, and certain other of Shad’s activities. The objection made regarding her testimony was that at the time these events occurred, Mae McComb — who was then Mae Caldwell — was Shad’s common law spouse. Upon examination of McComb, the District Judge determined that appellant had failed to prove the existence of a common law marriage. We agree.

Mrs. McComb testified that she lived with appellant in Ohio from mid-1967 to mid-1971, or approximately four years. She received credit cards from various stores during this period and signed them with Shad’s name. Of the two apartments in which appellant and McComb lived, neither was leased to them as husband and wife. Mrs. McComb further testified that the landlord of their second apartment knew they were not married, and that both her name (Mae Caldwell) and Shad’s were listed on the apartment mailbox. Although Shad did, on occasion, introduce Mrs. McComb as his wife, she stated that this did not occur often, and that she told no relatives that she and Shad were married. Mrs. McComb, did, however, use the name of Mae Shad at one of several clubs where she was employed “but it was not to make them believe we were man and wife . . . ”

Upon sufficient proof of “cohabitation and reputation of marriage of the parties,” the state of Ohio recognizes the existence of a so-called common law marriage. Ohio Rev.Code Ann. § 3105.-12. The criteria for recognition of such a union were set forth in Umbenhower v. Labus, 85 Ohio St. 238, 97 N.E. 832 (1912), as follows:

“An agreement of marriage in praesenti when made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, they being so treated and reputed in the community and circle in which they move, establishes a valid marriage at common law . . . ” (Syllabus)

However, common law marriages are strongly disfavored in Ohio as contravening public policy, and, as a result, each of the above-described elements must be proved by clear and convincing evidence. In re Estate of Redman, 135 Ohio St. 554, 21 N.E.2d 659 (1939); In re Estate of Soeder, 7 Ohio App.2d 271, 220 N.E.2d 547 (1966).

Although Shad and Mrs. McComb cohabited for some time, the testimony at trial shows conclusively that there was no agreement of marriage in praesenti between them, and that few people, if any, with whom they associated knew them as husband and wife. Indeed, their own actions, such as the leasing of apartments in their individual names and the maintaining of the' two names on their mailbox, were inconsistent with the claimed marriage. We find no error in the District Judge’s determination on the issue of common law marriage.

VIII. CONCLUSION

In their multiple addresses to us, appellants have made numerous arguments which are not specifically treated in this opinion, either because they are essentially duplicative of presentations made by other parties to this appeal and are covered herein or because they are patently without merit. However, we have carefully reviewed each contention made, against the background of the record in this cause, and on that basis, we are convinced that there are no grounds for reversal.

Accordingly, the judgment of the District Court is affirmed.

      . It is appropriate to note that our task in this case would have been less onerous if either appellants or the Government had seen fit to furnish us with an appendix constructed in accordance with Fed.R.App.P. 30 and good appellate practice. In this respect, counsel for all parties to the appeal failed in their duty to this Court.

      . As discussed in Section IV A, supra, the Cadillac Eldorado referred to in Count 6, in fact, proved to be a Cadillac Coupe DeVille.


source: Caselaw Access Project

author: LEWIS R. MORGAN, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellant, v. CONTINENTAL CASUALTY COMPANY, Defendant-Appellee.
    No. 74-1896.
    United States Court of Appeals, Fifth Circuit.
    May 5, 1975.
    Rehearing Denied June 3, 1975.

      Robert W. Rust, U. S. Atty., Mervyn L. Ames, Asst. U. S. Atty., Miami, Fla., Leonard Schaitman, Michael Kimmel, Attys., Dept, of Justice, Washington, D. C., for plaintiff-appellant.
    Wesley G. Carey, Steven R. Berger, Miami, Fla., for defendant-appellee.
    Before DYER, MORGAN and GEE, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

This case arises, somewhat tangentially, from a contract awarded on June 6, 1966, by the United States Army Corps of Engineers to Mike Bradford & Co., Inc. (hereafter “Bradford”) and Southern Crane Corp., Inc., as a joint venture, in the amount of $273,645.00 for production of eleven hoists to be used in a lock and dam project on the Arkansas River. The joint venture immediately obtained a performance bond for $136,822.50 from appellee Continental Casualty Company (hereafter “Continental”), a corporate surety. On August 16, Bradford subcontracted with McNally Pittsburgh Manufacturing Corporation (hereafter “Mc-Nally”) for fabrication of some of the equipment.

As provided by contract, McNally furnished progress reports known as “work estimates” to Bradford, which forwarded them to the government; the government paid Bradford which was in turn obliged to pay McNally. As of August 30, 1967, four payments totalling $159,-872.13 had been made to Bradford; unfortunately, none of this money had been forwarded to McNally, even though that company had by then completed 66% of the fabrication. Suspecting finally that all was not as it should be, McNally notified the government on December 27, 1967, that it had not yet received payment from Bradford. In an attempt to improve what appeared to be a precarious position, McNally subsequently declared a lien on the partially completed equipment, all of which was still in its plant; the government denied the validity of the lien.

In early March, 1968, Bradford notified the government and Continental that it was financially unable to continue the project. On March 15, the government informed Bradford and Continental that the contract was terminated for default; in the same letter the government stated that McNally was still obligated to deliver the completed equipment and that all of the equipment covered by the progress payments to Bradford were the property of the United States. McNally, as noted, disagreed with this analysis, and asserted that its alleged lien took precedence over any government claim. At this point, the government took the action which has since become the focal point of this litigation: on May 27, 1968, it granted a reprocurement contract to McNally for $291,000.00 for purchase of the hoists. The contract thus ignored. the $159,872.13 in payments already made to Bradford for purchase of the same equipment. On June 5, 1968, the government demanded payment from Continental of $177,227.13 (the second payment of $159,872.13 plus $17,355.00 in reprocurement costs) and on October 13, 1972, it filed suit in federal district court to enforce its claim. On cross motions for summary judgment, the court ruled in favor of Continental as to any liability in excess of the government’s reprocurement costs. The court held that the government’s second payment to McNally for the 66% of the equipment for which Bradford had already been paid prejudiced Continental’s right of subrogation against McNally and therefore released it pro tanto from its obligation to the government. For reasons explained below, we affirm the judgment of the district court.

Ordinarily in a case such as this one, we would initially determine whether state or federal law controls our disposition of the substantive issue. Since the suit was brought in Florida, and the surety bond was made there, and Florida generally applies a lex loci contractu analysis, our choice would be between federal and Florida law. Since we find that there is no difference between the provisions of these two bodies of law in this area, however, we need not decide the choice of law question, but may proceed directly to the substantive problem.

It may be helpful to clarify at the outset precisely what is at issue here. The government insists that the right to subrogation does not accrue in favor of a surety until the surety has performed its contractual obligation, a precondition which Continental clearly did not fulfill. This proposition is true, but it is only a starting point for our analysis of this case; we must decide which party should bear the loss when the government in effect prevents the surety from performing its obligation, thereby negating any possibility of subrogation.

As a creation of equity, subrogation is governed generally by broad equitable principles rather than by strict legal rules. New York Title and Mortgage Co. v. First National Bank of Kansas City, Mo., 51 F.2d 485 (8th Cir. 1931), cert. denied 284 U.S. 676, 52 S.Ct. 131, 76 L.Ed. 572 (1931); Dantzler Lumber and Export Co. v. Columbia Casualty Co., 115 Fla. 541, 156 So. 116 (1934). Therefore, where one of two relatively innocent parties must suffer a loss, the one whose action causes the loss must bear it. Gray v. Jacobsen, 56 App.D.C. 353, 13 F.2d 959 (1926). Further, a surety is entitled to be subrogated to the benefit of all securities and means of payment under the creditor’s control, and any act by the creditor depriving the surety of this right discharges it pro tanto; thus, the creditor must, for the surety’s benefit, apply to the debt all money or security within his control and which he has a right to apply. If he voluntarily surrenders or releases such security, the surety is discharged pro tanto. See Standard Accident Insurance Co. v. Bear, 134 Fla. 523, 184 So. 97 (1938). Of course, the creditor will not always be able to prevent loss to the surety; nevertheless, it must act in good faith and not unreasonably prejudice the surety’s right to subrogation. See United States v. United States Fidelity and Guaranty Co., 236 U.S. 512, 35 S.Ct. 298, 59 L.Ed. 696 (1914); Cf. Gibbs v. Hartford Accident and Indemnity Co., 62 So.2d 599 (Fla.1952).

Applying these broad maxims is of course more difficult than stating them in the abstract. The factual situation in early 1968, and its legal ramifications, were obviously unsettled. The government had paid out more than $159,000.00 for equipment to which it therefore had a valid claim under the terms of the contract. On the other hand, McNally was contending that it had a valid lien on the equipment and that such lien had “attached as soon as the work and material was furnished . . . prior to the passing of any title to the Corps of Engineers.” Clearly, resolving this contest in commercial metaphysics would have taken some time and could have delayed completion of the dam and lock.

As noted above, the government chose to extricate itself from this dilemma by simply abandoning its claim to title in the equipment and paying for it a second time. As the district court summarized:

The one problem with this arrangement ... is that by reletting the contract in this fashion [the Corps] not only obligated the surety to pay the full amount of the bond, but concurrently destroyed its right to be subrogated to the title the Corps held in the hoists at the time of reprocurement. The surety could not now proceed against McNally to replevy the partially completed — and partially paid for — hoists. s}: * sft # * *
The surety had to be given some way to protect its right to be subrogated to the title of the Corps in the hoists at the date of termination, and the [reprocurement contract] effectively destroyed that right.

Additionally, and crucially, the government could have protected Continental’s right without impairing its own interest in speedy completion of the project. It could have initiated litigation against McNally to determine title to the 66% of the hoists for which it had already paid, while at the same time paying into court $159,872.13. While the suit was in progress, it could then have entered into the reprocurement contract with McNally, and demanded payment of the bond by Continental. After paying the bond, Continental would have been subrogated to any right the Corps was eventually determined to have had in the partially completed equipment.

Balancing the equities of the two parties, then, we find that the scales tip in favor of the surety. The government has great discretion in the administration of its contracts, and its interest in their timely completion is entitled to great weight. Argonaut Insurance Company v. United States, 434 F.2d 1362, 193 Ct.Cl. 483 (1970). Here, however, the government could have protected this interest without destroying the surety’s extremely valuable subrogation right; its action here constituted an abuse of discretion, and released the surety pro tanto.

The judgment of the district court is therefore affirmed.

      . Confederation Life Association v. Vega y Arminan, 207 So.2d 33 (Fla.1968).

      . Clause SC-7 of the contract between Bradford and the government provided that, upon payment to Bradford for the work estimates submitted, “ . . . title to all equipment, parts, articles and materials and work progress included in such estimates of work performed shall forthwith vest in the Government. . .”


author: RIVES, Circuit Judge:

text:
    Edward J. PETERSON, Petitioner-Appellant, v. Captain Warren GOODWIN, Corrections Officer, United States Air Defense Center, Confinement Facility, Biggs Field, El Paso, Texas, Respondent-Appellee.
    No. 73-3176.
    United States Court of Appeals, Fifth Circuit.
    May 5, 1975.
    Joseph A. Calamia (court appointed), John L. Fashing, El Paso, Tex., for petitioner-appellant.
    William S. Session, U. S. Atty., C. J. Calnan, Ralph E. Harris, Asst. U. S. Attys., El Paso, Tex., for respondent-appellee.
    Before RIVES, GODBOLD and GEE, Circuit Judges.
   RIVES, Circuit Judge:

An Air Force general court-martial found Air Force Sgt. Peterson guilty of possession and sale of heroin in violation of Article 134, U.C.M.J., 10 U.S.C. § 934, and directed punishment by dishonorable discharge and twenty-eight years’ imprisonment. On appeal, the military authorities reduced the term of his sentence to ten years. This appeal follows denial of a petition for habeas corpus. We affirm.

This appeal, when taken, presented three issues. First, did Sgt. Peterson exhaust his remedies in the military court system? Second, is Article 134, U.C.M.J., 10 U.S.C. § 934, unconstitutionally vague in violation of the Fifth Amendment? Third, did the court-martial have jurisdiction over this case, which involved the off-post possession and sale of heroin?

There is no serious dispute on the first issue. Sgt. Peterson appealed to the Air Force Court of Military Review and the Court of Military Appeals. The appellee now concedes that he has exhausted his military remedies.

The United States Supreme Court has recently resolved the second issue. In Parker v. Levy, 1974, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439, the Court upheld the constitutionality of Article 134. Peterson could not actually have doubted that his sale of heroin to fellow airmen was to “the prejudice of good order and discipline in the armed forces.” He was on fair notice that he was subject to punishment. His contentions that Article 134 is too vague are without merit. Parker v. Levy, supra at 743 — 757, 94 S.Ct. 2547.

The third issue presents a closer question. Sgt. Peterson asserts that the court-martial lacked jurisdiction over his case because his offense had no connection with the Air Force. To dispose of that issue, we must examine the facts. Peterson made two sales of heroin to airmen — the first sale on January 4, 1973 and the second sale on January 5, 1973. The first sale took place off the base while both seller and purchaser were out of uniform and on leave from their military duties. The second sale was made within the confines of Holloman Air Force Base where Peterson was stationed. Peterson concedes that the court-martial had jurisdiction over the sale on the base but denies that it had jurisdiction over the sale off the base. We find that it had jurisdiction over both sales.

As recognized in Relford v. U. S. Disciplinary Commandant, 1971, 401 U.S. 355, 365, 91 S.Ct. 649, 28 L.Ed.2d 102 and O’Callaghan v. Parker, 1969, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 the connection between the military duties of the servicemen and the crime in question is an important factor in determining whether the court-martial has jurisdiction over the offense and the servicemen involved in its commission. Heroin addiction among the servicemen at an Air Force base poses a unique threat to the operation of the base. Unless the airmen can respond quickly to orders and can adequately operate the complicated weapons and material subject to their use, the base will be unable to fulfill its vital functions in the defense of our Nation.

Our conclusion was foreshadowed by the holding of another panel of this Court in Cole v. Laird, 1972, 468 F.2d 829. The panel held that the off-post possession and use of a small amount of marihuana was not service-connected. Chief Judge Brown drew a distinction between the danger to military preparedness from the use of marihuana and the danger from heroin use, stating that “marihuana does not rise to the level of heroin or other physically addictive, ‘hard’ drugs, and the dangers associated with its use . . . are not as great as those associated with heroin . . .” Cole v. Laird, supra at 833. We agree. Heroin addiction presents a serious threat to the good order and discipline of our armed forces. A court-martial has power to deal with that threat. We hold that the sale of heroin by one airman to another is sufficiently related to the functioning of the armed forces for a court-martial to acquire jurisdiction over the offense and the offenders, notwithstanding the attenuating circumstances that at the time of sale both airmen were off base, off duty, and out of uniform.

Affirmed.


text:
    Sarah Ballard HALL, Plaintiff-Appellant, v. TOWER LAND AND INVESTMENT COMPANY, Defendant-Appellee.
    No. 74-2490.
    United States Court of Appeals, Fifth Circuit.
    May 2, 1975.
    Fred Lohmeyer, Bryan, Tex., J. Ralph Howell, Jr., Dallas, Tex., Jack S. Dawson, Oklahoma City, Okl., Scott Bradley, Dallas, Tex., for plaintiff-appellant.
    Hubert D. Johnson, H. Dee Johnson, Jr., Dallas, Tex., for defendant-appellee.
    Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

Appellant Sarah Ballard Hall brought this diversity action to establish her undivided one-half interest in a parcel of real property located in Dallas County, Texas, and to remove appellee Tower Land and Investment Company’s claim against that interest. Finding her action barred by the principle of res judicata we vacate the judgment of the district court and remand with instructions to dismiss the action.

I.

Coffee Cups, Inc., acquired title to the property in question in this suit from P.K. Taylor on or prior to November 8, 1963. On March 17, 1964, appellant’s father, G.E. Hall, wrote a letter to Coffee Cups requesting that it acknowledge that Sarah Hall owned one-fourth of the stock of Coffee Cups, that Sarah Hall “advanced equity money” to purchase the property in question, and that such property was “owned one-half by Sarah B. Hall and one-half by F.C. Karr” but that the title was “carried in the name of ‘Coffee Cup, Inc.’ ” The letter was “accepted” and signed by F.C. Karr for Coffee Cups.

In October of 1964, Coffee Cups contracted to sell the property to Tower. On October 30, 1964, G.E. Hall, individually and as “custodian” for the appellant, as well as Coffee Cups and F.C. Karr executed an instrument in which they acknowledge that Sarah Hall owned 25% of the stock of Coffee Cups. The instrument also noted that by “separate letter agreement,” it was acknowledged that Sarah Hall owned one-half interest in the Dallas County property.

Tower signed a statement at the end of this instrument in which it agreed “the execution and delivery of the instrument by all parties whose signatures are called for” in the instrument and delivery of the stock in Coffee Cups from Sarah Hall to Karr were conditions precedent to Coffee Cups’ obligations under the contract of sale of the real property. On the same date, G.E. Hall, individually and as “custodian” for Sarah Hall, executed a quitclaim deed on the property.

On November 4, 1964, Coffee Cups conveyed the property in question to Tower for $29,000 cash and subject to a $60,000 note secured by a lien on the property. Tower later paid the note and the lien was released.

At all times during the course of these transactions, Sarah Hall was a minor, and G.E. Hall, her father, had never been judicially appointed her guardian or custodian. Also, there is no evidence that record title to the property in question had ever been in the name of G.E. Hall prior to its conveyance to Tower.

On August 16, 1972, Sarah B. Hall filed suit against Tower and its president, R.B. Payne, seeking to establish a trust of record undertaken by Tower for her benefit. Sarah Hall alleged that she and Karr had agreed to convey their interest in the Dallas County property to Tower, that Tower would manage the property for the benefit of all three parties, and that Sarah Hall would receive one-half of the revenues from the property in excess of Tower's investment. Hall further claimed that Tower had fraudulently repudiated this agreement and she was now seeking a judgment of ownership in the property and an award of one-half of the revenues from the property. Alternatively, Hall alleged that she was a minor at the time of these events and the court should therefore void the relevant contracts and instruments purportedly made by her during her infancy and cancel any instruments clouding her title to the property.

On September 12, 1972, Tower and Payne moved to dismiss Hall’s complaint against them pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, alleging that it failed to state a claim upon which relief could be granted. On January 22, 1973, the district judge granted Tower’s motion, but he did not indicate whether his order was “with prejudice” or “without prejudice.” This judgment was never appealed.

On January 19, 1973, after a conference between the trial judge and the parties, but before the announcement of judgment on the first complaint, Sarah Hall filed a new complaint against Tower. This complaint was subsequently amended on July 3, 1973. It sought to void instruments purportedly made on Sarah Hall’s behalf during her infancy and to remove the instruments which cloud her title to an undivided one-half interest in the property. In this complaint Sarah Hall alleged that she was a minor when her interests in the property were purportedly conveyed by G.E. Hall, that he did not have legal capacity to so act, and that Tower knew of Sarah Hall’s interest and G.E. Hall’s lack of capacity when it acquired the property.

In answer, Tower pleaded, inter alia, that the prior judgment operated as a res judicata in the instant case. The district judge did not directly rule on the res judicata question, but instead held that Sarah Hall failed to establish a legal or equitable interest in the property.

II.

We hold that Sarah Hall’s subsequent suit was barred by the principle of res judicata. For a prior judgment to bar an action on the basis of res judicata, the prior judgment must have been rendered by a court of competent jurisdiction, there must have been a final judgment on the merits, and the same cause of action must be involved in both cases. See Wasoff v. American Automobile Ins. Co., 451 F.2d 767, 769 (5th Cir. 1971). Neither party disputes the fact that the district court was a court of competent jurisdiction.

Likewise, the judgment rendered on Sarah Hall’s first complaint was a judgment on the merits. Federal Rule of Civil Procedure 41(b) states, in relevant part:

Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for under this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication on the merits.

The trial court’s dismissal of Hall’s first complaint under Fed.R.Civ.P. 12(b) falls directly under the wording of Rule 41(b), and cases have held that such decisions operate as adjudications on the merits. See Glick v. Ballentine Produce, Inc., 397 F.2d 590, 593 (8th Cir. 1968), and cases cited therein. Moreover, this Circuit has held that granting defendant’s motion to dismiss for plaintiff’s failure to state a claim upon which relief can be granted operates as an adjudication on the merits, and the appellate court will not gó behind the order to determine precisely which issues the trial court decided. See Weissinger v. United States, 423 F.2d 795 (5th Cir. 1970) (en banc).

Finally, we hold that both of Hall’s complaints were based upon the same cause of action. In so determining we adopt the test frequently applied in this Circuit for ascertaining whether two complaints are based upon the same cause of action; if the primary right and duty and the delict or wrong are the same in each action, the cause of action is the same. See Wasoff v. American Automobile Ins. Co., 451 F.2d 767, 769 (5th Cir. 1971); Seaboard Coast Line Railroad Co. v. Gulf Oil Corp., 409 F.2d 879, 881 (5th Cir. 1969).

The alternative pleading in Hall’s first complaint and her second complaint are virtually identical; both actions were brought against the same party seeking the same remedy in regard to the same property. In short, the same alleged right and wrong were involved in both actions — the right of Sarah Hall to possession of the Dallas County property and the refusal of Tower to assent to her demands. Cf. Wasoff v. American Automobile Ins. Co., 451 F.2d 767, 769 (5th Cir. 1971); see also Brown v. Compton, 466 F.2d 1384, 1385 (5th Cir. 1972).

Even if Hall had pleaded only the trust theory of recovery in her first complaint, res judicata would still prohibit relitigation of her claim on a quiet title theory in a subsequent complaint, for in both federal courts and Texas state courts a judgment is final not only as to all matters which were decided but also as to all matters which might have been tried. Wasoff v. American Automobile Ins. Co., 451 F.2d 767, 769 (5th Cir. 1971); Acree v. Air Line Pilots Assn., 390 F.2d 199, 202-203 (5th Cir. 1968), cert. denied 393 U.S. 852, 89 S.Ct. 88, 21 L.Ed.2d 122 (1968).

Since all requirements for the application of res judicata are satisfied, the dismissal of Hall’s first complaint is conclusive as to any other action or proceeding involving the same cause of action. See IB J. Moore, Federal Practice If 0.465[3] (2d ed. 1974). Hall’s second complaint should therefore have been dismissed by the district court.

The judgment of the district court is vacated and we remand the case with instructions to dismiss the plaintiff’s complaint on the basis of res judicata.


author: PER CURIAM:

text:
    Joseph C. CANIZARO, Plaintiff-Appellant, v. KOHLMEYER & COMPANY, Defendant-Appellee.
    No. 74-2014.
    United States Court of Appeals, Fifth Circuit.
    May 2, 1975.
    Peter J. Butler, New Orleans, La., Paul E. Hurley, P. J. Stakelum, III, New Orleans, La., for plaintiff-appellant.
    Charles Kohlmeyer, Jr., Charles E. Hamilton, III, Earl S. Eichin, Jr., New Orleans, La., Roger L. Waldman, New York City, for defendant-appellee.
    Before THORNBERRY, SIMPSON and RONEY, Circuit Judges.
   PER CURIAM:

The appellant, Canizaro, brought suit in the Southern District of New York against a number of New York defendants for damages for claimed violations of Section 12(2) of the Securities Act of 1933, Title 15 U.S.C. § 777(2), and 17 C.F.R. § 240.10b-5 promulgated pursuant to § 10 of the Securities Exchange Act of 1934, Title 15 U.S.C. § 78j, and on various state law principles in connection with a purchase by Canizaro of certain securities in May 1970. A New Orleans, Louisiana based registered broker-dealer, Kohlmeyer & Company (Kohlmeyer), the appellee herein, served as Canizaro’s broker or seller in the actual consummation of the purchase, and was named as a defendant in addition to the New York defendants. Upon Kohlmeyer’s motion, the case against the appellee was severed and transferred to the Eastern District of Louisiana.

Following a full-scale trial on the merits, the district court found for the defendant-appellee on all counts and entered the judgment appealed from. For reasons well stated by the trial court we agree that the plaintiff-appellant Cañizaro failed to prove a violation of either § 12(2) or of Rule 10b — 5, or to prove a case under applicable Louisiana law.

The judgment below was right, and is in all respects

Affirmed.

      . The Findings of Fact and Conclusions of Law of the trial court are reported at 370 F.Supp. 282.


text:
    George BROWN, Plaintiff-Appellant, v. Harlan E. O’LEARY, the First National Bank of Hereford, Hereford, Texas, and William P. Maroski, Defendants-Appellees.
    No. 74-4018
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 5, 1975.
    Robert Scogin, Kermit, Tex., for plaintiff-appellant.
    Mitchell Esper, El Paso, Tex., for Wm. P. Maroski.
    Glenn E. Woodard, El Paso, Tex., for Harlan O’Leary.
    James W. Witherspoon, E. Hazen Woods, Jr., Hereford, Tex., for 1st Nat’l Bk. of Hereford.
    Before GEWIN, GOLDBERG and DYER, Circuit Judges.

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

   PER CURIAM:

This diversity damage suit was specially set for trial on June 17, 1974, before The Honorable Ernest Guinn. On June 9, 1974, Judge Guinn expired. The Clerk advised Scogin, counsel for plaintiff, that he would be notified of a new trial date. In mid-September, 1974, plaintiff’s counsel learned by chance and later confirmed that the action had been dismissed sua sponte by the district court on July 31, 1974, for want of prosecution because of the failure of Scogin to appear at a docket call. Counsel promptly filed a motion to reinstate the cause, later supported by an affidavit, on the ground that he had received no notice of the July docket call and that he would be prepared to try the case at any time set by the Court. Interrogatories and answers had been filed, depositions completed, and proposed pretrial orders submitted. Notwithstanding counsel’s representation of lack of notice, the Court denied plaintiff’s motion to reinstate the cause. We reverse.

There is no evidence of a false claim or dilatory action by plaintiff’s counsel. On the contrary, discovery had been completed and the cause was ready for trial within five months after it was filed. For aught that appears, although the Clerk may have mailed the notice, counsel for plaintiff did not receive it.

We have repeatedly said that, while we will not disturb the district court’s exercise of sound discretion in keeping its calendar under control, we will not approve sanctions that are not commensurate with the dereliction. Link v. Wabash Railroad Co., 1962, 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734; Flaksa v. Little River Marine Const. Co., 5 Cir. 1968, 389 F.2d 885. See Fed.R.Civ.P. 41(b), Durham v. Florida East Coast Ry. Co., 5 Cir. 1967, 385 F.2d 366; Council of Federated Organizations et al. v. Mize, 5 Cir. 1964, 339 F.2d 898. Here, instead of dereliction there was diligence, a lost or misdelivered notice, no motion for default, and no showing of prejudice to any party. Yet the court refused to reinstate its sua sponte dismissal. This was clearly an abuse of discretion.

The judgment is reversed and this cause is remanded to the district court with directions to reinstate the case on the docket for trial on the merits.

Reversed and remanded with directions.


author: SIMPSON, Circuit Judge:

text:
    Albra Christine WHITE, Individually, etc., et al., Plaintiffs, v. TEXAS EASTERN TRANSMISSION CORPORATION et al., Defendants. ST. PAUL FIRE AND MARINE INSURANCE COMPANY and the Bettis Corporation, Defendants-Third-Party Plaintiffs-Appellants, Texas Eastern Transmission Corporation and The Fidelity and Casualty Company of New York, Defendants-Third-Party Plaintiffs, v. CHARLES WHEATLEY COMPANY, Third-Party Defendant-Appellee, Vinson Supply Company, Third-Party Defendant, Home Insurance Company, Intervenor.
    No. 74-1667.
    United States Court of Appeals, Fifth Circuit.
    May 5, 1975.
    Rehearing and Rehearing En Banc Denied June 24, 1975.

      Timothy J. McNamara, Lafayette, La., for third-party defendant-appellee.
    Nicholls Pugh, Jr., Lafayette, La., for defendants-third-party plaintiffs-appellants.
    Bob F. Wright, Lafayette, La., for Al-bra Christine White, and others.
    Fred H. Sievert, Jr., Lake Charles, La., for Tex. Eastern Transmiss. Corp. & Fidelity & Cas. Co.
    James R. Nieset, Lake Charles, La., for Vinson Supply Co.
    Before WISDOM and SIMPSON, Circuit Judges, and NICHOLS, Associate Judge.

       Of the United States Court of Claims, sitting by designation.

   SIMPSON, Circuit Judge:

Murray Granvil White, an employee of the Charles Wheatley Co. (Wheatley), was fatally injured when component parts of a Wheatley Univalve Launch Package upon which he was working exploded. The launch package had been sold by Wheatley to Texas Eastern Transmission Corporation (Texas Eastern) and was installed on a fixed offshore drilling platform located in Block 280 of the Gulf of Mexico offshore of Cameron, Louisiana. White’s widow and daughter were entitled to and received compensation from Wheatley’s insurance carrier in accordance with the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, Title 33, U.S.C. § 901 et seq. (hereinafter “L & H”).

Also instituted by White’s survivors was the present litigation, a civil tort action for damages against Texas Eastern and against the Bettis Corporation, manufacturer of the actuator valve incorporated in the Wheatley launch system.

Bettis Corporation and its insurer, St. Paul Fire and Marine Insurance Company (hereafter collectively referred to as “Bettis”) filed third party complaints against Wheatley. Bettis’ primary position is that it is entitled, in the event of a judgment holding it liable for damages to White’s survivors, to contribution or to indemnity in tort for all or part of such damages.

Wheatley moved to dismiss Bettis’ third-party complaint on grounds that the exclusivity provision of L & H, Title 33, U.S.C. § 905, as construed by this court, precludes such indemnity claims against an employer. The district court entered a Rule 54(b) F.R.Civ.P. order granting Wheatley’s motion to dismiss, and this appeal followed. For the reasons advanced below, we affirm the order of the district court.

Our discussion necessarily begins, and to all effective intents and purposes, ends, with Ocean Drilling and Exploration Co. (ODECO) v. Berry Bros. Oilfield Service, Inc., 5 Cir. 1967, 377 F.2d 511, cert. denied 1967, 389 U.S. 849, 88 S.Ct. 102, 19 L.Ed.2d 118 (ODECO). In that case, employees of Berry Bros, were injured while performing repair work on an offshore drilling platform owned by ODECO. The injured employees received L & H compensation from their employer, and also filed suits in tort against ODECO alleging ODECO’s negligence in failing to furnish a safe place to work. ODECO in turn filed a third-party complaint for indemnity in tort and contract against Berry Bros. The district court granted Berry Bros.’ motion to dismiss the third-party complaint, and we affirmed on appeal.

After disposing of ODECO’s claimed contractual right to indemnity (see note 5, supra), we turned to a consideration of the very issue which is again before us today: “whether a claim for indemnity remains available to ODECO [by analogy, here to Bettis] under maritime tort principles.” 377 F.2d at 513. We held, after citing the exclusive liability provision of L & H, 33 U.S.C. § 905, as follows:

It is thus apparent that the Act’s exclusive liability provision effectively abrogates any independent tort liability of the employer to its employees, thereby eliminating any basis which may have existed for indemnification on a tort theory. Thus, while the employer may continue, even in spite of the exclusive liability provision of the Act, to remain liable for indemnity on the basis of an express or implied contractual obligation, in the absence of such obligation, as here, there simply exists no underlying tort liability upon which to base a claim for indemnity against the employer. See United Air Lines, Inc. v. Wiener, 9th Cir. 1964, 335 F.2d 379, 402-404, cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549; Halliburton Co. v. Norton Drilling Co., supra, 302 F.2d [431] at 434; Brown v. American-Hawaiian S.S. Co., 3d Cir. 1954, 211 F.2d 16, 18; American Mut. Liab. Ins. Co. v. Matthews, 2nd Cir. 1951, 182 F.2d 322, 323-336.

377 F.2d at 514-15. (Emphasis added)

Without more, this would seem to end the matter. For, it is clear from a reading of ODECO and other cases that there must be some underlying tort liability predicated on a breach of the employer’s duty in order for a right of indemnity to arise in a third party. Here, the only breach of duty — and the only resulting theoretical liability — of Wheatley that could be asserted was a duty owed to its employee to assemble the launch package in a non-negligent manner so as to prevent injury to the employee. It is clear beyond doubt under ODECO that § 905 of L & H has extinguished this liability in favor of a compensation scheme. Thus, there remains no underlying tort liability to support Bettis’ indemnity claim.

Appellants present an argument by analogy with cases decided under the exclusive liability provision of the Federal Employees’ Compensation Act (FECA), Title 5, U.S.C. § 8116(c), because of the similarity of the language of FECA to that of L & H. We reject application of these decisions as inapposite to our decision of this appeal for reasons we will briefly set forth.

In the first place, conceding the persuasiveness of such cases in the absence of an authoritative construction of § 905 of L & H, such a situation is simply not present. Secondly, the Supreme Court decisions which have permitted some forms of indemnity under § 8116(c) of FECA may be distinguished on their facts from the instant controversy. Finally, the lower federal courts are themselves divided as to the proper interpretation of § 8116(c) of FECA as applied to tort indemnity claims.

Likewise without merit is appellant’s further contention that the precedential vitality of ODECO’s clear holding has been eroded by subsequent decisions in this circuit. Very recently, in Aetna Casualty & Surety Co. v. Service Contracting, Inc., 5 Cir. 1973, 490 F.2d 299, we adhered to the rule of ODECO in unmistakable language:

[H]aving paid workmen’s compensation to Laster in accordance with the exclusive liability provision of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq., Service Contracting was not subject to any independent tort liability to its employees. Without this underlying tort liability, Service Contracting could not have been liable for indemnity in the absence of a written contract. Ocean Drilling & Exploration Co. v. Berry Brothers Oil Field Service, Inc., 377 F.2d 511 (5th Cir.), cert. denied, 389 U.S. 849 [88 S.Ct. 102, 19 L.Ed.2d 118] (1967). See General Electric Co. v. Cuban American Nickel Co., 396 F.2d 89 (5th Cir. 1968); Halliburton Co. v. Norton Drilling Co., 302 F.2d 431 (5th Cir. 1962).

490 F.2d at 300-01.

Guided by such undeviating precedent from this court, the district court was clearly justified in its dismissal of Bettis’ third-party claim for tort indemnity against Wheatley.

Affirmed.

      . The Univalve Launch Package was part of an apparatus used for cleaning moisture from within natural gas transmission lines connecting offshore drilling platforms. The launcher would disgorge 24 inch balls known as “pigs” into the gas transmission lines when actuated. The actuator, (a “pig launcher” in oil field vernacular) among other uses, opens and closes oil field valves, or actuates them. At the time he sustained his fatal injuries, Murray White was installing a device that would automatically release the balls at predetermined intervals. It is our understanding that the launch system had theretofore required manual operation of the actuator.

      . The Outer Continental Shelf Lands Act, Title 43, U.S.C. § 1331 et seq., provides that the compensation law applying to injuries on these fixed, offshore drilling platforms is that specified in the L & H Act. 43 U.S.C. § 1333(c).

      . The Wheatley launch system was assembled from a number of component parts, some of Wheatley’s manufacture and others purchased by Wheatley from independent suppliers such as Bettis Corporation.

      . A third party claim against Wheatley was also filed by Texas Eastern and, subsequently, by the Vinson Supply Company (Vinson). The third-party complaint of Texas Eastern alleged a contractual right to indemnity based on language appearing on the purchase order forms executed between Texas Eastern and Wheatley. Wheatley made no motion to dismiss Texas Eastern’s complaint, and its viability is not now an issue before this court.
      Vinson Supply Company, like Bettis, was a supplier of component parts for the Wheatleyassembled launch system. Vinson’s third party complaint against 'Wheatley was filed after the entry of judgment against Bettis on its third-party complaint and before this appeal was taken. The district court has withheld disposition of the Vinson complaint pending our decision in this appeal.

      . Bettis also claimed the right to indemnity based on Wheatley’s breach of an implied warranty that it would use the Bettis supplied equipment only in accordance with the specifications and recommendations supplied by Bettis. This is an apparent attempt to invoke the right of indemnification recognized in Ryan Stevedoring Co. v. Pan Atlantic S.S. Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, in a non-vessel oriented context. We clearly rejected any such attempts in Ocean Drilling and Exploration Co. v. Berry Bros. Oilfield Service, Inc., 5 Cir. 1967, 377 F.2d 511, 513 & n.3, cert. denied, 1967, 389 U.S. 849, 88 S.Ct. 102, 19 L.Ed.2d 118.

      . Title 33, U.S.C. § 905, prior to the 1972 amendment, read as follows:
      § 905. Exclusiveness of liability.

      The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liabiity of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee. (Mar. 4, 1927, ch. 509, § 5, 44 Stat. 1426.)
      The effective date of the 1972 amendments to L & H was after the institution of this action below, and the amendments do not enter into the disposition of this appeal. But, for the legislative history of the amendments see 1972 U.S.Code Cong, and Admin.News, p. 4698 et seq.

      . See, e. g. Loffland Brothers Co. v. Roberts, 5 Cir. 1967, 386 F.2d 540, cert. denied 1968, 389 U.S. 1040, 88 S.Ct. 778, 19 L.Ed.2d 830; Drewery v. Daspit Brothers Marine Divers, Inc., 5 Cir. 1963, 317 F.2d 425.

      . In Weyerhaeuser S.S. Co. v. United States, 1963, 372 U.S. 597, 83 S.Ct. 926, 10 L.Ed.2d 1, the Court held that the exclusive liability provision of FECA yielded to the time-honored rule of divided damages in mutual fault admiralty collision cases. The Court indicated that it considered this result dictated by Congress’ expressly providing in the Public Vessels Act, Title 46, U.S.C. § 781 et seq., that the United States be liable just as private shipowners in mutual fault collision cases.
      In Treadwell Const. Co. v. United States, 1963, 372 U.S. 772, 83 S.Ct. 1102, 10 L.Ed.2d 136, the Court simply vacated a holding of the court of appeals and remanded for further consideration by the district court the question whether § 8116(c) barred indemnity claims where the Federal Tort Claims Act, Title 28, U.S.C. § 2671 et seq., was applicable in the light of the Court’s holding in Weyerhaeuser.

      These cases are not dispositive of the L & H exclusivity issue before us here.

      . See, Annot., 12 A.L.R.Fed. 616, §§ 5 and 6 (1972) (Supp.1974), for a collecting and analysis of the divergent views on the reach of FECA’s exclusive liability provision.

      . Appellant cites Sandoval v. Mitsui Sempaku K.K. Tokyo, 5 Cir. 1972, 460 F.2d 1163, and Loffland Bros. Co. v. Roberts, 5 Cir. 1967, 386 F.2d 540, cert. denied 1968, 389 U.S. 1040, 88 S.ct. 778, 19 L.Ed.2d 830, in support of his argument. Sandoval involved the FECA and need not detain us. See nn. 8-9 and accompanying text, supra. In Loffland an employee of a casing contractor was injured in the course of well drilling on an offshore platform similar to the location of Murray White’s fatal injury. In Loffland, Roberts, an injured employee of a casing company, brought suit against Loffland Bros., the drilling contractor, for damages, and Loffland Bros, filed a third-party claim for indemnity against O. D. Casing Crews, Inc., Roberts’ employer. The district court dismissed the third-party complaint and we affirmed without referring to the exclusive liability provision of L & H. We found, instead, that the third-party claim for tort indemnity could not stand because there was no evidence in the record of any negligence on the part of the casing company other than the negligence of the injured employee. Under the doctrine of Drewery v. Daspit Bros. Marine Divers, Inc., 5 Cir. 1963, 317 F.2d 425, we declined to impute the employee’s negligence, which resulted only in injuries to the employee himself, to his employer. There was, therefore, no underlying tort liability upon which Loffland Bros, could base its claim for indemnity.
      We do not read this court’s reliance on a pre-existing common law rule rather than on the exclusive liability provision of L & H, never mentioned in the opinion, as an implicit retreat from the holding in ODECO. Indeed the theory of indemnity in both ODECO and Loffland Bros, is the same: absent some underlying tort liability of the employer, there can be no third-party claim for tort indemnity against the employer. That the court in Loffland Bros, elected to apply this theory under common-law principles rather than under the exclusive liability provision of the L & H is of little significance in assessing ODECO’s continuing potency as precedent.