source: Caselaw Access Project

author: AINSWORTH, Circuit Judge:

license: Public Domain

text:
    Rudolph G. GUZMAN, #215272, Petitioner-Appellee, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellant.
    No. 73-2626.
    United States Court of Appeals, Fifth Circuit.
    May 3, 1974.
    John L. Hill, Atty. Gen. of Texas, Lonny F. Zwiener, Joe B. Dibrell, Asst. Attys. Gen., Larry F. York, First Asst. Atty. Gen., Austin, Tex., for respondent-appellant.
    William T. Armstrong, Staff Counsel for Inmates, Texas Dept, of Corrections, Weldon, Tex., Harry H. Walsh, Atty. in Charge, Huntsville, Tex., for petitioner-appellee.
    Before BROWN, Chief Judge, and AINSWORTH and MORGAN, Circuit Judges.
   AINSWORTH, Circuit Judge:

This is an appeal from the district court’s grant of habeas corpus relief. The sole issue raised is whether appel-lee’s Fourth Amendment rights were violated by the admission in evidence at his state court trial of six capsules of heroin found in his possession. We hold that the capsules were properly admitted at the trial; and we reverse.

I.

On February 27, 1969, two members of the Special Services detail of the Austin, Texas, Police Department, Sergeant Hersom and Officer Taylor, obtained a warrant authorizing a search for narcotics of the premises of Jessie Reyna Soliz “and other person or persons unknown to affiants by name, age, or descripton.” The warrant, which also called for the arrest of Soliz, was issued upon an affidavit by the officers stating that they had received information from a reliable informant that Soliz was keeping and selling narcotics at his residence; that the informant had, within the prior forty-eight hours, seen Soliz sell narcotics to narcotics users from a fingerstall kept on his person; and that a narcotics rig was kept in the house for addicts who wished to inject the narcotics immediately. The officers further related that their detail had maintained a surveillance of the Soliz residence and that several persons known to be addicts and users of narcotics entered the house, stayed for a few minutes, and then left.

On February 28, 1969, the warrant was executed by three other members of the Special Services detail, Captain Gann, Sergeant Lewallen, and Sergeant Spain. As the officers approached the back door of the Soliz residence, Mrs. Soliz opened the door, whereupon she was advised that the three were police officers. She was further informed that they had a search warrant for the premises, and she was given a copy of the warrant. The officers then entered the house and proceeded through the kitchen and the dining room and into a bedroom, in which they found Rudolph Guzman, appellee, seated on the bed next to a woman. As the officers entered the bedroom, appellee jumped to his feet. He appeared to be startled and frightened. While appellee was getting to his feet, Captain Gann and Sergeant Lewal-len took physical control of him. As Captain Gann held appellee by his left arm, Sergeant Lewallen frisked appellee and removed from his right front pocket a fingerstall in which were six gelatin capsules containing a brownish, powdery substance subsequently determined to be heroin. After a plea of not guilty and a nonjury trial, appellee was convicted of unlawful possession of a narcotic drug, heroin, and was sentenced to 17 years’ imprisonment. Over objection of appellee’s counsel, the gelatin capsules were admitted at the trial. The conviction was affirmed by the Texas Court of Criminal Appeals, and, after the exhaustion of state remedies, federal habeas corpus relief was granted by the district court below.

II.

The Fourth Amendment secures the right to be free from “unreasonable searches and seizures.” E. g., Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1969). Since the ultimate standard set forth in the amendment is reasonableness, e. g., Cady v. Dombrowski, 413 U.S. 433, 439-440, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973); United States v. Edwards,-U.S.-, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), it is clear that the Amendment does not speak in absolute terms, Terry v. Ohio, supra, 392 U.S. at 9, 88 S.Ct. at 1873; Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960); United States v. Ragsdale, 5 Cir., 1972, 470 F.2d 24, 27; United States v. Lipscomb, 5 Cir., 1970, 435 F. 2d 795, 800, cert. denied, 401 U.S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331 (1971). The courts have long shown a willingness to examine and balance the two basic values at stake in the area of search and seizure: the practical demands of effective criminal investigation and law enforcement; and the interest of citizens in freedom from rash interferences with their privacy. See, e. g., United States v. United States Dist. Ct., E.D. of Mich., S.D., 407 U.S. 297, 314-315, 92 S.Ct. 2125, 2135, 32 L.Ed.2d 752 (1972); Ker v. California, 374 U.S. 23, 32, 83 S. Ct. 1623, 1629, 10 L.Ed.2d 726 (1963); Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948); Carlton v. Estelle, 5 Cir., 1973, 480 F.2d 759, cert. denied, 414 U.S. 1043, 94 S.Ct. 546, 38 L.Ed.2d 334 (1973). See generally Note, Warrantless Searches and Seizures of Automobiles, 87 Harv. L.Rev. 835 (1974). Upon consideration of these values in the context of the facts and circumstances of this case, we conclude that the search of the appellee and the seizure of the narcotics did not violate the Fourth Amendment: the search was made with probable cause and the exigencies of the situation required that' the search be conducted without a warrant. See, e. g., Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Ker v. California, supra, (plurality opinion); McDonald v. United States, 335 U.S. 451, 454-455, 69 S.Ct. 191, 192-193, 93 L.Ed. 153 (1948); Johnson v. United States, 333 U.S. 10, 15, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

III.

The delicate weighing of the interests of privacy and law enforcement which defines the Fourth Amendment is reflected in the first instance in the required proof of the existence of probable cause as a predicate of a valid search or arrest. See, e. g., Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) ; United States v. Sanchez, 5 Cir., 1969, 412 F.2d 1177, cert. granted in part and judgment vacated, cert, denied in part, 397 U.S. 320, 90 S.Ct. 1130, 25 L.Ed.2d 338 (1970). As defined long ago, probable cause is constituted by “facts and circumstances . . . such as to warrant a man of prudence and caution in believing that the offense has been committed . . . . ” Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035, 1036 (1878); see Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925); Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879 (1949). Probable cause deals in terms of the probabilities associated with the everyday practical and factual considerations of reasonable men. See, e. g., Brinegar v. United States, supra, at 176, 69 S.Ct. at 1311; United States v. Colbert, 5 Cir., 1973, 474 F.2d 174, 178-179 (en banc) (Brown, C. J., concurring). “Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.” Id., 338 U.S. at 176, 69 S.Ct. at 1311.

Determinations of probable cause are best made by viewing the facts of a particular situation as a whole. See, e. g., United States v. Lopez-Ortiz, 5 Cir., 1974, 492 F.2d 109; United States v. Doyle, 5 Cir., 1972, 456 F.2d 1246; Bailey v. United States, 1967, 128 U.S.App.D.C. 354, 389 F.2d 305, 308-309. Each case must be decided on its own facts and circumstances, for no formula exists for calculating probable cause. Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374 (1931); see, e. g., United States v. Johnson, 1973, 154 U.S.App.D.C. 393, 475 F.2d 977. Consideration of several factors leads us to conclude that the search of appellee in this case was based on probable cause.

The Austin police were told by a reliable informant that narcotics were being sold to narcotics users by Soliz at his house. Sales were made by Soliz, the informant related, from a fingerstall. Surveillance by the officers who procured the warrant revealed that several persons known to them as narcotics addicts and users proceeded in and out of the house, each one staying for only a few minutes. On this basis, an independent judicial officer determined — and his determination is not here challenged —that there was probable cause to believe that narcotics were kept and sold at the Soliz residence. The warrant also recited that paraphernalia were kept on the Soliz premises for users who wished to inject the narcotics immediately. In addition, Sergeant Hersom, one of the affiants for the search warrant, had received information that appellee was staying at the Soliz residence and was dealing in narcotics. Sergeant Hersom testified, however, that in the course of his surveillance he had not seen appellee at the house.

When the officers executing the warrant entered the bedroom of the Soliz house and found appellee, Captain Gann and Sergeant Lewallen grabbed him as he jumped to his feet. Captain Gann testified at the trial that he had known appellee for several years; that he was aware that appellee had a prior criminal record, though he did not know the nature of the convictions; and that he had information that appellee was a user of narcotics. Appellee’s presence at the Soliz residence thus confirmed the warrant’s recitation that there were other narcotics users on the premises. Further, it lent credence to Sergeant Hersom’s information that appellee was dealing in narcotics at the Soliz residence. See Ker v. California, 374 U.S. 23, 37, 83 S.Ct. 1623, 1631-1632, 10 L.Ed.2d 726 (1963) (plurality opinion).

Pursuant to departmental policy, Sergeant Lewallen, in the interest of protecting the three officers in the room, then frisked appellee for weapons. During the frisk, Sergeant Lewallen came across an object in appellee’s right front pocket, which, upon removal, he found to be a fingerstall containing six gelatin capsules. The frisk produced no other seizable materials.

Though we do not decide whether Sergeant Lewallen could reasonably have believed that the rubber fingerstall containing the capsules was a weapon that should be removed for the officers’ protection, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the fact that Sergeant Lewallen felt such an object in the course of the pat-down must be considered in determining probable cause. First, users and sellers of narcotics frequently carry the substance on their persons in capsules, thumbstalls, and similar objects, F. Bailey & H. Rothblatt, Handling Narcotic & Drug Cases § 298 (1972); second, the search warrant in this case specifically stated that Soliz was selling narcotics to users from a fingerstall that he carried on his person; and, third, the criminal activity recited in the warrant involved not only the possession of narcotics, but their sale, that is, the transfer of narcotics from one person to another. In light of these and the aforementioned elements, Sergeant Lewallen was not required to ignore the object he discovered in the course of his frisk. A search for narcotics may be justified where an officer’s search for weapons unexpectedly produces evidence providing or contributing to probable cause to believe that a person possesses narcotics. See Pace v. Beto, 5 Cir., 1972, 469 F.2d 1389, 1390-1391. Considering this and the facts and circumstances as a whole, probable cause existed for searching the appel-lee’s pocket and for seizing the finger-stall containing the capsules of narcotics.

IV.

We turn now to the question whether this case presents exigent circumstance to justify the search of appellee without obtaining a warrant. Qualification as exigent circumstances turns “in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.” Camara v. Municipal Court, 387 U.S. 523, 533, 87 S.Ct. 1727, 1733, 18 L.Ed.2d 930 (1967); see, e. g., Walker v. United States, 1963, 117 U.S.App.D.C. 151, 327 F.2d 597, cert. denied, 377 U.S. 956, 84 S.Ct. 1635, 12 L.Ed.2d 500 (1964). The Supreme Court has identified several factors that it considers exigent: (1) an alerted criminal fleeing or likely to take flight; (2) contraband, stolen goods, or weapons as the objects of the search; (3) lack of a prior opportunity for the defendant to destroy incriminating evidence; (4) objects of the search that may be quickly and easily removed or destroyed; (5) easy access of the criminal to the objects of the search; (6) availability of confederates to aid the criminal in fleeing or in the destruction of the objects of the search; and (7) lack of time in which the search warrant could have been secured. See, e. g., Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948) ; McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (plurality opinion); Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L. Ed.2d 564 (1971) (plurality opinion). See also Note, Warrantless Searches and Seizures of Automobiles, 87 Harv.L.Rev. 835 (1974). All of these elements were present in the case before us.

The Austin police officers went to the Soliz residence armed with a search warrant evidencing probable cause to believe that narcotics were used and sold on the premises to be searched. In executing the warrant, the officers discovered appellee, whom they had little or no reason to believe would be there. Appellee’s reaction upon seeing the officers indicates that for him their visit was quite unexpected. In his pocket, appellee had a fingerstall containing six capsules of heroin, the mere possession of which is a crime. This contraband was small and easily destroyed, and appellee’s access to it was simple. Appellee had every reason to remove or destroy the contraband, and he had not, after seeing the police, had an opportunity to do so. The officers saw, moreover, at least four other persons on the premises who could aid appellee either to flee or to rid himself of the contraband.

After appellee had been frisked, the officers had probable cause to believe that he concealed narcotics in his pocket. Unless appellee was briefly detained and his pocket searched, he could walk from the premises with the contraband. It would be unreasonable in this situation to expect the police to seek a warrant prior to their search — and after their frisk — of appellee in the hope that appellee would be at the Soliz premises with the narcotics when they returned. See Carlton v. Estelle, 5 Cir., 1973, 480 F.2d 759; cert. denied, 414 U.S. 1043, 94 S.Ct. 546, 38 L.Ed.2d 334 (1973); United States v. Johnson, 1973, 154 U.S.App.D.C. 393, 475 F.2d 977, 979; Walker v. United States, 1963, 117 U.S.App.D.C. 151, 327 F.2d 597, 600, cert. denied, 377 U.S. 956, 84 S.Ct. 1635, 12 L.Ed.2d 500 (1964). Clearly, time was of the essence: if appellee’s pocket was not searched immediately, either appellee would flee or the contraband on his person would be removed or destroyed. The Fourth Amendment does not protect under such circumstances. Searching appellee without a warrant was reasonable under the Amendment, for “the exigencies of the situation made that course imperative.” McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948).

Stressing the particular circumstances presented by this case, we hold, therefore, that the six gelatin capsules containing heroin were properly admitted in evidence at appellee’s state court trial. Accordingly, the judgment of the district court is

Reversed.

      . At tliis time, there were nine persons in the Special Services detail.

      . In addition to Mrs. Soliz, appellee, and the woman seated on the bed with him, the officers saw on the Soliz premises a young woman believed to be the daughter of Mrs. Soliz and a small child.

      . For the protection of the officers involved, it is the policy of the Austin Police Department to conduct a weapons search of anyone in a house that is the subject of a narcotics search warrant.

      . A fingerstall or thumbstall is an elastic rubber object placed over a finger or thumb by such persons as bookkeepers to avoid cutting their fingers when turning pages.

      . The district court held that the search and seizure of appellee was unreasonable for these reasons: (1) a warrant directing the search of a house does not authorize the search of any person, such as appellee, who might be found there; (2) the warrantless search of appellee was unjustified because (a) it was not within the scope of a frisk under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and (b) it was not valid as a search incident to an arrest because “there was nothing to indicate that Guzman was or had been engaged in the commission of a crime.”

      . In full, the Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

      . We do not reach the question whether ap-pellee may have been validly searched pursuant to the authority of the narcotics search warrant for the Soliz premises. See, e. g., State v. DeSimone, 60 N.J. 319, 288 A.2d 849 (1972) ; State v. Wise, 284 A.2d 292 (Del.Super.Ct.1971) ; Nicks v. United States, 273 A.2d 256 (D.C.Ct.App.1971) ; Mascolo, Specificity Requirements for Warrants under the Fourth Amendment: Defining the Zone of Privacy, 73 Dick.L.Rev. 1, 19-20 (1968) ; 58 Cornell L.Rev. 614 (1973).

      . “Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests.” Brinegar v. United States, supra, 338 U.S. at 176, 69 S. Ct. at 1311. See also United States v. Seay, 5 Cir., 1970, 432 F.2d 395, 400, cert. denied, 401 U.S. 942, 91 S.Ct. 949, 28 L.Ed.2d 223 (1971).

      - In the context of this case, probable cause may take the forms of probable cause to believe that the person who is the subject of the search possesses seizable objects or that he has committed a criminal offense. Since we are concerned with a search for narcotics, the mere possession of which is a criminal offense, these forms of probable cause merge,

      . It is not contended, and we do not think, this, frisk was unwarranted. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . It would not be unreasonable, for example, to assume that appellee was a customer or dealer who was purchasing or selling narcotics and was holding some in his pocket.

      . Stated differently, this means that the search for narcotics is not tainted by the fact that probable cause for this later search derives, solely or partially, from an earlier search for weapons. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (plurality opinion ; id. at 510, 91 S.Ct. at 2060 (White, J., dissenting).

      . “The test of probable cause is not the articulation of the policeman’s subjective theory but the objective view of the facts.” Dodd v. Beto, 5 Cir., 1970, 435 F.2d 868, 870. Probable cause is determined upon the objective facts available for consideration by the law enforcement agency conducting the search or arrest. E. g., Stassi v. United States, 5 Cir., 1969, 410 F.2d 946, 952 n. 7; United States v. Ragsdale, 5 Cir., 1972, 470 F.2d 24; United States v. Lopez-Ortiz, 5 Cir., 1974, 492 F.2d 109; United States v. Stratton, 8 Cir., 1972, 453 F.2d 36, cert. denied, 405 U.S. 1069, 92 S.Ct. 1515, 31 L.Ed.2d 800; White v. United States, 8 Cir., 1971, 448 F.2d 250, 254, cert. denied, 405 U.S. 926, 92 S.Ct. 974, 30 L.Ed.2d 798 (1972) . See also United States v. Pentado, 5 Cir., 1972, 463 F.2d 355, 361, cert. denied, 410 U.S. 909, 93 S.Ct. 963, 35 L.Ed.2d 271 (1973) .

      . See Coolidge v. New Hampshire, 403 U.S. 443, 462, 471, 91 S.Ct. 2022, 2035-2036, 2041, 29 L.Ed.2d 564 (1971) (plurality opinion) ; id. at 519, 91 S.Ct. at 2064 (White, J., dissenting). But see Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L.Ed.2d 782 (1967).

      . Most of the information received by the police from the informant concerned the sales activities of Soliz. Surveillance had shown that narcotics users proceeded in and out of the house. 'At the time the warrant for the Soliz premises was sought, however, the only knowledge the affiants had concerning appellee was the information Sergeant Hersom had received that appellee was staying at the Soliz residence and was dealing in narcotics there. During the period of his surveillance, though, Sergeant Hersom had not seen appellee at the Soliz premises. Ap-pellee, furthermore, was not known to have substantial control over the premises; he was known merely as a visitor. In view of this and the fact that appellee had not been seen in the course of surveillance by Sergeant Hersom, the affiants could not reasonably be expected to assume that appellee was on the Soliz premises at the time the warrant was sought or that he would be there when the warrant was executed. It was not until the warrant was executed that several of the factors contributing to probable cause for the search of appellee came into play; namely, appellee’s presence on premises where narcotics were sold and used; awareness in this context of appellee’s use of narcotics and his prior criminal record; and the information resulting from the frisk.
      This situation is to be contrasted with that in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). That case, as Justice Stewart emphasized in his plurality opinion, dealt “with a planned warrantless seizure.” Id. at 471 n. 27, 91 S.Ct. at 2041 n. 27 (emphasis in original) ; see, e. g., United States v. Lisznyai, 2 Cir., 1972, 470 F.2d 707, 710, cert. denied, 410 U.S. 987, 93 S.Ct. 1516, 36 L.Ed.2d 184 (1973).

      . Had appellee been detained to prevent destruction of the contraband, while a warrant was sought, an arrest would have occurred since his freedom of movement would have been curtailed, see, e. g., Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959) ; Vernon’s Ann.Texas Code Crim.Proc. art. 15.22 (1966), thus defeating the purpose of a warrant, see United States v. Robinson, — U.S. —, —, 94 S. Ct. 467, 472, 38 L.Ed.2d 427 (1972), and cases cited therein.


author: GODBOLD, Circuit Judge:

text:
    Evelyn WEEKS, surviving spouse of Norman Lee Weeks, Sr., deceased, Plaintiff-Appellant, v. ALONZO COTHRON, INC., Alonzo Cothron, S. A. Ekblom, Jr., and E. R. Albury, Jr., Defendants-Third Party Plaintiffs-Appellees, v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY and Matson Surety, Inc., Third Party Defendants-Appellees.
    No. 73-1095.
    United States Court of Appeals, Fifth Circuit.
    April 29, 1974.
    Rehearing Denied June 10, 1974.

      Oliver Wiley Folmar, Vacation Village, Fla., Oliver W. Brantley, Troy, Ala., Clinton Green, Miami, Fla., for plaintiff-appellant.
    Duane Anderson, Miami, Fla., for third party plaintiff.
    Thomas J. Schulte, Miami, Fla., for American Mut. Liability.
    Melvyn G. Greensphan, Miami, Fla., for Matson Surety.
    Jeanne Heyward, Miami, Fla., for Cothron and others and American Liability Ins. Co.
    Before THORNBERRY, GODBOLD and CLARK, Circuit Judges.
   GODBOLD, Circuit Judge:

This is the third appeal in this case, brought pursuant to the election provision of the Longshoremen’s and Harbor Workers’ Act, 33 U.S.C. §§ 901-950, against an employer-shipowner who failed to “secure payment of compensation as required.”

The suit, alleging negligence, was brought by the widow in April 1969, for damages for the death, occurring in the navigable waters of Florida, of Norman Lee Weeks, Sr., a nonseaman. The District Court dismissed for want of subject matter jurisdiction. On appeal we reversed, holding that the District Court sitting in admiralty had jurisdiction by reason of the Florida wrongful death statute which covered claims arising from negligence occurring on the navigable waters of Florida. We noted that the cause of action was not based upon unseaworthiness and that our decision in Moragne v. States Marine Lines, Inc., 409 F.2d 32 (CA5, 1969), was then pending before the Supreme Court after grant of certiorari. In Moragne we had held, pursuant to the Florida Supreme Court’s answer to our certified question, that the Florida wrongful death statute did not give rise to an unseaworthiness cause of action for the wrongful death of a longshoreman on the navigable waters of Florida. Thereafter the Supreme Court decided Moragne, holding that an action lies under general maritime law for death caused by unseaworthiness of a vessel on state navigable waters without regard to the limited scope of the state wrongful death statute. Plaintiff then amended her complaint to add a claim based on unseaworthiness. Following a nonjury trial, the court denied relief on both grounds.

On the second appeal we again reversed, holding that there was liability based on unseaworthiness (and preter-mitting consideration of negligence), and remanded for determination of damages. From a damage award of $38,855.39 plaintiff again appeals.

I. Contributory negligence

Plaintiff’s damages should not have been reduced by 50% on the basis of decedent’s contributory negligence.

The employer-defendant and the decedent were subject to the Longshoremen’s Act, and since the employer failed to secure payment of compensation as required, the plaintiff could elect, under 33 U.S.C. § 905, to “maintain an action in admiralty for damages on account of such . . . death.” Id. Plaintiff made that election. She alleged Cothron’s obligation to secure payment of compensation and its failure to do so. Cothron contended that it did carry prescribed insurance coverage, and impleaded its compensation carrier as a third-party defendant. The policy on its face showed, however, that there was no coverage for claims under the Act, so defendant amended its third-party complaint to request reformation of the policy and impleaded its insurance agent, alleging that the agent had been instructed to secure the prescribed coverage but had negligently failed to do so. The District Court found that the defendant did not carry the required coverage but allowed indemnity over against the insurance agent and the compensation carrier. Thus it is clear that throughout the proceedings plaintiff has prosecuted this action pursuant to the election provisions of § 905. The unambiguous command of § 905 is that in a suit allowed to be maintained by that section contributory negligence may not be urged in defense. The sentence following the language allowing an action in admiralty, quoted above, states:

In such action the defendant may not plead as a defense . . . that the injury was due to the contributory negligence of the employee.

Appellee concedes that § 905 abolishes contributory negligence as a bar to the suit if the claim sounds in negligence but argues that where the claim sounds in admiralty § 905 does not abolish the application of decedent’s negligence as an element of calculating damages under the admiralty concept of comparative negligence. This construction, unsupported by authority and contrary to the language of § 905, would erode the purpose of that section as an inducement for employers to secure compensation, and it is contrary to our holding on the second appeal when, having concluded that the vessel was unseaworthy, we did not deal with the theory of negligence, saying, "The determination of damages on remand would be the same, regardless of the theory of recovery.” 466 F.2d at 580.

Finally, appellee suggests that the present action could be maintained by virtue of a judicially created exception to the Longshoremen’s Act’s exclusivity provision and that, therefore, the § 905 exception with its attendant disal-lowance of contributory negligence as a defense is inapplicable. In Reed v. S.S. Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L. Ed.2d 448 (1963), the Supreme Court held that despite the Longshoremen’s Act’s provision that compensation liability of an employer under the Act is exclusive and in lieu of all other liability on his part, one employed by a shipowner as a longshoreman can sue the employer-shipowner for the ship’s unseaworthiness. See also Jackson v. Lykes Bros. S.S. Co., Inc., 386 U.S. 731, 733, 87 S.Ct. 1419, 1421, 18 L.Ed.2d 488, 490 (1967); Scopaz v. S.S. Santa Luisa, 372 F.2d 403 (CA2, 1967). Thus Yaka provided an exception to exclusivity which applies whether or not the employer-shipowner has secured compensation under the Act. Since the present case involves an employer who was also the shipowner, appellee would have us conclude (1) that this suit is pursuant to the Yaka exception and (2) that in suits pursuant to Yaka, the general maritime law principle of comparative negligence applies. We need not decide whether comparative negligence applies in suits pursuant to Yaka, however, for whether or not this is such a suit it is also an action brought pursuant to § 905 and, consequently, an action to which that section’s disallowance of certain defenses, including the defense of contributory negligence, applies. Even if comparative negligence applies in pure Yaka suits, the concurrent applicability of the § 905 exception must operate to render that doctrine inapplicable. If it did not so operate, § 905 could not serve as an incentive to employers-shipowners to secure compensation in accordance with the Longshoremen’s Act since they could lose nothing by failing to secure compensation. In granting longshoremen the ability to sue employers-shipowners for unseaworthiness, Yaka did not restrict the rights of longshoremen authorized to sue “in admiralty” under § 905 or undermine the incentive provided by that section to compliance by employers with the compensation scheme established by the Act.

II. Damages to the wife

The cause of action in this case, both before and after amendment of the complaint, was asserted pursuant to the election provision of § 905. An argument can be constructed that § 905 creates for longshoremen employees of a shipowner a statutory cause of action for wrongful death arising from unseaworthiness, rather than simply allowing assertion of such a cause derived from another source, and that the incidents and contours of this statutory cause of action are not necessarily the same as those of the judicially created Moragne cause of action against a shipowner for wrongful death arising from unseaworthiness. We are unable to accept such a construct as relevant here. Whether or not § 905 created an unseaworthiness cause of action for a longshoreman’s wrongful death which existed prior to Moragne, in the circumstances of this post -Moragne case an admiralty cause of action for wrongful death occurring in a state’s territorial waters asserted pursuant to § 905 must conform to the shape of a cause of action under Moragne except to the extent that § 905 expressly modifies those contours.To hold otherwise would be to further complicate, without reason, the already recondite subject of the scope of damages under Moragne. A contrary holding would also run counter to the analysis of Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, and Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), employed by the Supreme Court in Reed v. S.S. Yaka, supra

Because Moragne standards apply, the District Court must reconsider the damages awarded to the decedent’s widow. Those damages were determined under the standard of “fair and just compensation for the pecuniary loss sustained,” a standard drawn from the Death on the High Seas Act and from Jones Act cases. The recent Supreme Court discussion of Moragne damages contained in Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974) indicates that such damages comprise elements beyond those included in the DOHSA standard. Id. at 583-592, 94 S.Ct. at 814-818, 39 L.Ed.2d, at 20-24. Damages awarded to the widow must be reconsidered in light of Gaudet.

III. Damages to children

The trial judge denied relief to the two minor children on the grounds that they were not parties to the suit, that neither testified, and that the pecuniary value of their loss of nurture and guidance was not established.

The children should not be denied relief because they were not named as parties. Section 905 provides that an elective death action brought pursuant thereto shall be by decedent’s “legal representative.” It is not necessary for us to decide whether this is a word of art referring to a duly appointed administrator or executor, because no question has been raised of the widow s standing to sue. For purposes of this case at least we must assume that the widow is the appropriate “legal representative” entitled to sue for “damages on account of such . . . death,” 33 U.S.C. § 905, including any damages that the gloss of Moragne and Gaudet permit her to collect for and on behalf of the minors. The District Court may protect the children’s interests in any such awards through the entry of appropriate protective orders.

While the District Judge noted that the children did not testify, we do not believe their testimony was necessary nor do we understand the District Court’s opinion to hold that it was. Their mother, the plaintiff widow of the decedent, described in some detail the nature of the nurture and guidance provided by their father.

As we understand it, the thrust of the District Court’s holding was not that the nature of the father’s nurture and guidance was inadequately defined, but rather that the plaintiff submitted no evidence of a quantifiable “pecuniary” value which could be assigned to the nurture and guidance. The District Court derived its requirement that such evidence be submitted from Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417 (1913). But Vreeland was a case under the FELA limiting recovery thereunder to “pecuniary” loss, a limitation which, as we noted earlier, Gaudet refused to apply mechanically to Moragne actions. Thus the District Court must reconsider the applicability of Vreeland to this case. The District Court should permit proof to be offered on the issue of the monetary value of the children’s loss of nurture and guidance, if, in the view of the District Judge, such evidence is necessary.

IV. Life expectancy

Decedent was age 50 at the time of death in August 1968. He was employed as a member of a three-man crew pumping water out of a barge and applying patches to its leaks. He died when, wearing a diving mask, he dove under the barge to insert a patch and bolt into a leaking spot. His life expectancy under standard tables was 23 years. Plaintiff’s expert computed the future value of decedent’s earnings on an expectancy of his working 15 years to age 65, assuming that he was in good physical condition and would be able to perform heavy manual work until age 65. The expert admitted on cross-examination that his ultimate monetary average would be altered or modified depending upon specific case history as to decedent’s previous earning ability and capacity, his ability to perform the work required of him and his ability to hold a job by reason of health. He acknowledged that a previous existing infirmity that would have very much impaired decedent’s ability to work at the same pace and at the same labor would alter his opinion and could be “a pertinent factor.” The trial court concluded:

In fact, there is a very serious question as to whether or not he would have lived to age 65 with his heart condition and drinking problem. The greater weight of the credible evidence indicates, and I so find, that the deceased would not have worked past age 60, or a total of ten years, if, in fact, he lived that long from the date of his death.

Weeks’ two brothers died of heart attacks at the age of 43 and 46, his father died of a stroke and his mother was a diabetic. He smoked two or three packages of cigarettes a day, and, according to his doctor’s notes had a “heavy alcohol intake” which the doctor characterized as half a pint of liquor daily. He had a slightly enlarged liver. In 1966 Dr. Cohn examined him for chest pains and referred him to a specialist in internal medicine. An EKG revealed an abnormal heart beat and inferior wall injury pattern, compatible with injury to the heart muscle. Hospitalization was prescribed because of a suspected coronary or coronary insufficiency based on the abnormal EKG with acute symptoms. Weeks refused hospitalization and alternatively the doctor prescribed two weeks bed rest and nitroglycerin. The internist testified that the heart muscle would heal with a scar but the basic disease would not disappear. In early 1967 Dr. Cohn saw Weeks again for symptoms of angina. Another doctor, a specialist in gynecology, examined Weeks approximately three months before his death for a life insurance policy, listened to his heart and perceived no abnormalities but took no EKG. Bearing in mind decedent’s family history, his medical history, and the type of work he did, we are unable to say that the trial court erred in concluding that his work expectancy would not exceed 10 years.

V. Interest

We cannot say that the District Court’s award of only 4% as prejudgment interest was an abuse of discretion. See Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583 (CA2, 1961).

VI. Mathematical differences

Plaintiff’s expert testified to what decedent’s earnings would have been to age 65. At one point he testified to a total of $86,692, but at another to underlying figures producing a total of $89,692. The District Court stated that the $86,692 figure was right, but in its own calculations (reducing the age-65 figure to an age-60 figure) appears to have actually used the higher figure. To avoid further differences of opinion on remand, we have examined the expert’s testimony and conclude that the figure of $89,692 is the correct age-65 figure.

In reducing the award for decedent’s future earnings to the 10 year life expectancy (age 60) figure, the District Judge appears to have taken two-thirds of the expert’s figure for a 15 year life expectancy (age 65) period. Strictly speaking, the correct computation is more complex since the present value of future income becomes smaller the more remote in time the receipt of that income, so that deducting one-third of the total as the adjustment for eliminating the last five years would produce an excessive adjustment.

Thus the case is affirmed in part and reversed and remanded in part for reconsideration of damages. The plaintiff should, if she desires, be permitted to offer additional evidence in support of components of damage heretofore denied by the court, except for funeral expenses with respect to which at no time has any evidence been offered.

      . 33 U.S.C. § 905.

      . Weeks v. Alonzo Cothron, Inc., 426 F.2d 674 (CA5, 1970).

      . Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970).

      . Weeks v. Alonzo Cothron, Inc., 466 F.2d 578 (CA5, 1972).

      . See Gould v. Bird & Sons, Inc., 5 Wash.App. 59, 485 P.2d 458 (1971). Almost all American compensation acts permit the employee to sue the employer who has rejected or failed to comply with the act, and almost invariably as part of such permission to sue the employer is deprived of his common law defenses of assumption of' risk, contributory negligence and negligence of a fellow servant. Schweitzer, Workmen’s Compensation Law (perm, ed.) § 91.

      . In the District Court’s opinion and order now before us the court erroneously stated that the suit was not brought pursuant to the Act. In its findings made in connection with the judgment involved in the second appeal the court had correctly found that the suit as amended was brought pursuant to the Act.

      . It is not apparent that § 905 modifies the cause of action, as distinguished from the defenses which may be asserted, at all.

      . The Supreme Court’s holding in Yaka may be modified by a 1972 amendment to the Longshoremen’s Act adding subsection (b) of 33 U.S.C. § 905. Since this case arose prior to the amendment, we do not consider what impact, if any, it would have on our analysis here.

      . 46 U.S.C. § 762.

      . Despite the finding of lack of proof the court noted that if these elements had been properly pleaded and proved he would have awarded $6,000 to the minor son and $2,500 to the minor daughter. Obviously, if there was insufficient evidence of pecuniary value these figures are purely hypothetical.

      . See section II, supra.

      . Additionally, we note that Vreeland itself deals with damages for minor children’s loss of nurture and guidance only in dictum, that it mentions such damages at all to distinguish them from a spouse’s loss of “care and advice,” and that it does not in and of itself unambiguously require that the monetary value of the nurture and guidance lost should be a subject of proof. Whether such a requirement has been imposed by Vree-land’s progeny or whether the requirement should be inferred from Vreeland are, of course, distinct questions which, because of their interrelation with the questions raised by Gaudet, we leave open for determination by the District Court.


author: TUTTLE, Circuit Judge:

text:
    FIREMAN’S FUND INSURANCE COMPANY and Luckenbach Steamship Company, Inc., Plaintiffs-Appellants, v. Robert H. BERGERON, Deputy Commissioner, United States Department of Labor, Defendant-Appellee.
    No. 73-2385.
    United States Court of Appeals, Fifth Circuit.
    May 1, 1974.
    Dewey R. Villareal, Jr., Nathaniel G. W. Pieper, Tampa, Fla., for plaintiffs-appellants.
    Oscar Blasingame, Asst. U. S. Atty., Tampa, Fla., John L. Briggs, U. S. Atty., Jacksonville, Fla., William J. Kil-berg, Sol. of Labor, Peter Brennan, Sec. of Labor, U. S. Dept. Of Labor, Washington, D. C., for defendant-appellee.
    John D. Shofi, William D. Douglas, Tampa, Fla., for Roosevelt Lowe.
    Before BROWN, Chief Judge, and TUTTLE and SIMPSON, Circuit Judges.
   TUTTLE, Circuit Judge:

This is an appeal by plaintiffs Luck-enbach Steamship Co., Inc., an employer, and Fireman’s Fund Insurance Company, its insurance carrier, from the district court’s grant of summary judgment upholding the defendant deputy commissioner’s compensation order pursuant to the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. The deputy commissioner’s order held that claimant Lowe’s attorney’s telephone call to the deputy commissioner indicating that he would file an application for review of Lowe’s claim was adequate to toll the running of the one year limitation period under 33 U.S.C. § 922 because the deputy commissioner put a written memorandum of the call in his file. We affirm.

In 1960 while employed as a longshoreman by appellant Luckenbach Steamship, Lowe was injured when he fell in the hold of the vessel and was paid compensation and medical expenses by appellant Fireman’s Fund. After a hearing in 1965 before the deputy commissioner, Lowe was awarded further compensation which Fireman’s Fund paid until May 29, 1969, at which time Fireman’s Fund claimed that Lowe had received the statutory maximum for a partial disability. On May 29, 1969, Lowe served the deputy commissioner with written notice that payments had been stopped.

On June 9, 1969, Lowe’s attorney telephoned the deputy commissioner who wrote and filed the following memorandum regarding that call:

“The writer received a telephone call from C. J. Hardee, the claimant’s attorney. Mr. Hardee disputes the form BEC-208, and states that the employer and carrier have taken credit in the sum of $17,280 for some $6,100 they regained on a lien against the third party and some $3,000 net to the claimant.
“Further, Mr. Hardee claims the claimant is permanently totally disabled and will file for a review under § 22 of the Act.
“When such filing is received, please return the case to me for further handling.” (Emphasis supplied).

On December 23, 1970, the deputy commissioner wrote Lowe’s attorney inquiring whether Lowe intended to apply for a modification of his compensation order. On December 30, 1970, Lowe’s attorney responded stating “We do plan to file an application for review in this claim and request that you do not close the case. We will do so just as soon as possible.” On April 8, 1971, a petition for modification of Lowe’s compensation award was mailed to the deputy commissioner and to Fireman’s Fund. On January 20, 1972, the deputy commissioner after a hearing determined that the claimant’s modification application was timely filed, but that Lowe had received all compensation to which he was entitled under the 1965 award. The deputy deferred consideration of the merits of Lowe’s claim of total disability. The deputy commissioner’s order concluded:

“The memorandum recording Attorney C. J. Hardee’s telephone call to Deputy Commissioner William M. O’Keeffe June 9, 1969 constitutes a timely filed application for review under Section 22.”

Appellant Fireman’s Fund filed suit in the district court challenging the deputy commissioner’s determination that the telephone memorandum constituted an adequate application for review of an earlier award under 33 U.S.C. § 922. Claimant Lowe intervened. Fireman’s Fund asserted that it was only first apprised at the January 20, 1972 hearing of the deputy commissioner’s memorandum of the June 9, 1969 telephone conversation with Lowe’s attorney. The district court granted summary judgment for the deputy commissioner.

Section 22 of the Longshoremen’s Act, 33 U.S.C. § 922, provides in pertinent part:

“ . . . upon the application of any party in interest, on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, . review a compensation case in accordance with the procedure prescribed in respect of claims in section 919 of this title, . . .” (Emphasis supplied).

The sole question presented is whether the memorandum recording of the phone conversation suffices as a claimant’s “application” for modification within the statutory proscription that such an application be filed “prior to one year after the date of the last payment of compensation.”

Although decisions have not interpreted what constitutes an application under section 922, courts have determined what suffices as a claim under section 919. Since claims under section 919 must be filed, it has been held that they must be in writing. Employers Liability Assurance Corp. v. Donovan, 279 F.2d 76, 78 (5th Cir.), cert. denied, 364 U.S. 884, 81 S.Ct. 165, 5 L.Ed.2d 105 (1960). This Court in Employers Liability, supra, stated:

“No particular form of claim need be used. The requirement of a claim is met if a writing, even though an informal one, of the injured employee or his attorney discloses an intention to assert a right to compensation. Atlantic & Gulf Stevedores v. Donovan, supra; . . . ”

The following “informal” writings have qualified as adequate claims to toll the running of the one year statutory period of filing for a compensation award: (1) a letter from an attorney to the deputy commissioner requesting compensation, Atlantic & Gulf Stevedores, Inc. v. Donovan, 279 F.2d 75 (5th Cir. 1960) ; (2) a letter requesting compensation but misfiled by the deputy commissioner because of its reference to the wrong claim numbers, Beegan v. Brady-Hamilton Stevedore Co., 346 F.2d 857, 859-860 (9th Cir. 1965); (3) an attorney’s claim letter directed to an employer’s insurance carrier which in turn was transmitted to the deputy commissioner, Budson Co. v. Oikari, 270 F.Supp. 611, 614 (N.D.Ill. 1967); (4) an attorney’s letter to the deputy commissioner requesting a formal application blank that was never sent, Louisiana-Texas Waterways Co. v. United States Employees’ Compensation Commission, 19 F.Supp. 396 (W.D.Ky. 1935).

In McKinney v. O’Leary, 460 F.2d 371 (9th Cir. 1972), the claimant appeared at the deputy commissioner’s office, following which a written memorandum was prepared and filed by the deputy commissioner, reciting that “claimant” would return or have his attorney “contact us if he wants to file a claim.” The court not only found this memorandum sufficient to constitute the necessary claim, admittedly largely because the parties in essence stipulated so on appeal, but also noted “various types of informal writings have been liberally construed in determining whether a claim has been filed pursuant to 33 U.S.C. Sec. 913(a).” Id. at 373.

Similarly, this Court has recognized that the Longshoremen’s Act is to be liberally construed in favor of claimants. See Young and Co. v. Shea, 397 F.2d 185 (5th Cir. 1968), reh. denied, 404 F.2d 1059, cert. denied, 395 U.S. 920, 89 S.Ct. 1771, 23 L.Ed.2d 237 (1969). The trend of decisions appears to be that any written notice by or on behalf of the claimant within one year evidencing an intention to make a claim will be treated as sufficient to toll the running of the statutory period for filing a claim. Therefore, we conclude that the memorandum recording by the deputy commissioner of the telephone message from claimant’s attorney that “the claimant is permanently totally disable and will file for review under Section 22 of the Act” is sufficient to constitute an application for modification under 33 U.S.C. § 922.

The judgment is affirmed.

      . Section 19 of the Longshoremen’s Act, 33 U.S.C. § 919, provides for the initiation of claims under the act, whereas, Section 22, 33 U.S.C. § 922, governs the modification of compensation awards on grounds of change in conditions or because of a mistake in a determination of fact by the deputy commissioner. Section 919 states:
      “Subject to the provisions of section 913 [which bars claims filed one year after the injury] of this title a claim for compensation may be filed with the deputy commissioner in accordance with regulations prescribed by the Secretary at any time after the first seven days of disability following any injury, or at any time after death, and the deputy commissioner shall have full power and authority to hear and determine all questions in respect of such claim.”


author: CLARK, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Walter Trice McKINLEY, Defendant-Appellant.
    No. 73-2882.
    United States Court of Appeals, Fifth Circuit.
    April 29, 1974.
    Rehearing Denied May 29, 1974.

      Barry Hess, Mobile, Ala., for defendant-appellant.
    Charles White-Spunner, U. S. Atty., Irwin W. Coleman, Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.
    Before GEWIN, GOLDBERG and CLARK, Circuit Judges.
   CLARK, Circuit Judge:

Walter Trice McKinley was indicted for violating 21 U.S.C. § 841(a)(1) by possessing a Schedule I controlled substance (heroin) with intent to distribute it. His defense was entrapment. On this appeal from his conviction, McKinley makes two arguments for reversal: (1) the limits placed upon his cross-examination of the government’s primary witness deprived him of an effective cross-examination and (2) the lower court abused its discretion in not granting a mistrial after an improper statement by the same witness incurably prejudiced him. We affirm.

McKinley admitted that he procured heroin for Sam Battles, an individual who, it later developed, was cooperating with the government at the time. McKinley’s sole defense was that he was entrapped into making the sale. Generally, his version of what occurred was that Battles, an acquaintance of some ten years, contacted him and asked him to obtain some heroin for a “sick cousin” from Pineville, Alabama. Battles’ persistent pleas for compassion overcame McKinley’s reluctance, and his humanitarian instincts caused him to agree to act as procuring agent. He then obtained the heroin from one Catherine Douglas, transferred it to Battles, and subsequently, remitted money obtained from Battles to Ms. Douglas. The Me-Kinley-Battles “connection” occurred at Battles’ service station near Mobile. At the trial undercover agent Claude Smith of the Bureau of Narcotics and Dangerous Drugs (BNDD) testified for the government. Smith had posed as Battles’ sick cousin and was present at the service station when McKinley delivered the heroin to Battles. On direct examination Agent Smith testified mainly as to how this transaction occurred. On redirect on the crucial entrapment defense issue of predisposition, Agent Smith testified that two Mobile police officers and one Pritchard, Alabama police officer told him that McKinley was “one of the sources in Mobile who was selling narcotics of various types.” McKinley took the stand in his own behalf and admitted being convicted in 1965 of possession of marijuana, but denied ever being involved in selling drugs. After admitting he obtained the heroin for Battles’ “sick cousin” and describing the events at the service station, he stated that his only incentive had been to act as a “good Samaritan.” In rebuttal Ralph Jordan, a city detective with the Mobile police department, testified that he had information from confidential informants that McKinley was “one of the major dealers in narcotics in the City of Mobile.” Additionally, a deputy sheriff with the Mobile County Sheriff’s Department and a detective with the Pritchard Police Department testified that they had received information that McKinley was selling heroin during the period leading up to the transaction for which he was on trial.

I.

McKinley argues that the trial court denied him his sixth amendment right to effective cross-examination when it would not allow him to ask Agent Smith where he lived, what aliases he had used in other drug investigations, and how long he remained in Mobile after this incident. He relies on Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931); and Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). The government objected to disclosing Smith’s address on grounds of relevancy and materiality, stating: “[i]t [Smith’s address] is immaterial and irrelevant in view of the nature of the witness’ occupation. His residence is totally immaterial and should not be a matter of public serunity (sic).” In reference to disclosing aliases used in other eases, the government objected on grounds of relevancy, concluding with “to allow [counsel] to fully discover any and everything this man has done in all drug investigations is totally irrelevant and prejudicial to the United States.”

In Alford v. United States, supra, a mail fraud ease, a former employee of the accused gave “damaging testimony” on direct examination. On cross-examination after a materiality objection by the government, the trial judge refused to let the defendant ask this witness where he lived. The Supreme Court stated in reversing, that “it is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them.” (Emphasis added) 218 U.S. at 692, 51 S.Ct. at 219, 75 L.Ed. at 628 (1931). In Smith v. Illinois, supra the question of guilt or innocence hinged upon a credibility choice between the accused and the principal state witness, who was testifying under an assumed name. The Court there held that the trial court’s failure to require divul-gence of the witness’s real name and home address deprived the accused of the right to effective cross-examination included within the sixth amendment’s confrontation clause. In both Smith and Alford the Court recognized that the trial judge can compromise this right in order to protect a witness from “questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate [the witness].” The protection of the witness from physical harm is included within these categories. See Smith v. Illinois, supra (White, J., concurring); and United States v. Alston, 460 F.2d 48 (5th Cir. 1972) and cases cited therein.

Smith and Alford require as a constitutional minimum that a defendant be given an opportunity to place the prosecution’s witnesses in their proper setting and test the weight of their testimony and their credibility before the jury. However, once a defendant has been accorded this basic constitutional right, the outer parameters of his cross-examination are committed to the sound discretion of the trial judge. See C. Wright and A. Miller, Federal Practice & Procedure, § 416.

The government first argues that solicitude for Agent Smith’s safety justified not allowing McKinley to elicit his address on cross-examination. This argument raises the issue of whether the vaguely worded objection to the divulgence of Smith's address would be sufficient to restrict what otherwise would be a constitutional right on this ground. See, e. g., Alston v. United States, supra; United States v. Varelli, 407 F.2d 735, 750-751 (7th Cir. 1969); and United States v. Persico, 425 F.2d 1375 (2d Cir. 1970). However, we pretermit deciding this issue because of our disposition of the threshold issue of whether McKinley was denied an effective cross-examination.

In Alford, Smith, and Alston v. United States, the testimony of the witness sought to be cross-examined was either crucial to the government’s case (Smith and Alston); or at least extremely damaging to the accused (Alford). Thus, the credibility of the witnesses was, of necessity, a major issue in the trial of vital importance to each defendant. The instant case is altogether different. Under well established fifth circuit principles, by asserting the defense of entrapment, McKinley admitted the acts charged. See, e. g., United States v. Newcomb, 488 F.2d 190 (5th Cir. 1974), United States v. Williamson, 482 F.2d 508 (5th Cir. 1973), and the cases cited therein. Most of Agent Smith’s testimony consisted of describing the commission of the crime, i. e., the transaction between McKinley and Battles which Smith witnessed and which McKinley freely admitted on the stand. Although Smith’s version of what transpired differed slightly from McKinley’s, this difference was not of significance. The real issue in the case was whether Sam Battles induced McKinley into committing a crime he was otherwise not predisposed to commit. Agent Smith was not privy to Battles’ conversations with McKinley and did not testify as to their substance. Thus, the credibility of Agent Smith was only marginally at issue in this case.

Additionally, McKinley was allowed to place Agent Smith in his proper setting before the jury. Smith was not an informer of unknown background but was a full-time salaried employee of the Justice Department. McKinley was allowed to discover his true name, his age, occupation, length and grade level of employment, his supervisor’s name, the exact location of his office, the names of other BNDD agents working on the Mobile Task Force, the date the Task Force came to Mobile, the date Smith began working on this case, and the aliases he had used while working on this case.

Under these circumstances, the refusal to allow McKinley to inquire as to Smith’s residence and other aliases did not thwart effective cross-examination. Given the minimal weight of Agent Smith’s testimony in resolving the issue of predisposition, the fact that his credibility was only tangentially put in issue, and the extensive background information which was elicited from him about his proper setting; we hold that McKinley was not denied his sixth amendment right to an effective cross-examination and that the trial judge was within his discretion in not allowing McKinley’s counsel to ask the proposed questions. See United States v. Twomey, 460 F.2d 400 (7th Cir. 1972); United States v. Teller, 412 F.2d 374, 379-380 (7th Cir. 1969), cert. denied, 402 U. S. 949, 91 S.Ct. 1603, 29 L.Ed.2d 118 (1971); United States v. Lawler, 413 F.2d 622, 627 (7th Cir.), cert. denied, 396 U.S. 1046, 90 S.Ct. 698, 24 L.Ed.2d 691 (1969); and United States v. Lee, 413 F.2d 910, 915 (7th Cir.), cert. denied, 396 U.S. 1022, 90 S.Ct. 595, 24 L. Ed.2d 515 (1969).

II

McKinley also argues that the trial court abused its discretion in not granting his motion for a mistrial after an unresponsive interjection by Agent Smith on redirect incurably prejudiced his defense. These events developed in the following manner. On cross-examination counsel for McKinley asked Agent Smith if Battles had given McKinley any marked money. After an affirmative answer, counsel then asked if this marked money was “later recovered from the defendant.” Smith’s response was that he did not “think any money was recovered.” On redirect, the government, brought out the fact that McKinley’s arrest occurred five months after the incident. Then the following question was asked. “Do you know whether any money was recovered from the defendant at that time?” Smith’s response was, “No, I don't know if there was any money. I know some narcotics were recovered.” Defense counsel then moved to strike Smith’s answer. The court granted this motion and the jury was instructed to disregard the italicized portion of Smith’s statement. After securing this relief, McKinley moved for a mistrial on the basis that striking the statement and instructing the jury to disregard it, as he had requested, was really not the proper remedy.

When a defendant asserts the defense of entrapment hearsay reputation evidence is admissible to prove his predisposition to commit the crime. See, e. g., United States v. Simon, 488 F.2d 133 (5th Cir. 1973), and United States v. Stills, 476 F.2d 592 (5th Cir. 1973). Whether this would include hearsay testimony as to subsequent specific acts (possessing narcotics at the time of arrest) is a question we need not decide. Nor, need we decide whether the prejudice created by Smith’s statement was cured by the cautionary instruction granted at McKinley’s request. It is unnecessary to reach these points, because we are convinced that interjection of this statement into the context of this trial was harmless error under Fed.R.Crim.P. 52(a).

At the outset, we carefully scrutinized the record for any intimation that the statement was purposefully interjected by the government. Defense counsel’s line of questioning appears to be aimed at raising the inference in the jury’s mind that since no marked money was recovered at the time of McKinley’s arrest, then McKinley might have transferred the money to Catherine Douglas, as he stated. It was perfectly proper for the government to point out on redirect that the arrest occurred five months after McKinley was given the money and that, in any event, Smith did not know whether any money was recovered. Smith’s supplemental statement was entirely unresponsive. In these circumstances, given the propriety of the line of questioning, we can perceive no question of prosecutorial bad faith.

The objectionable statement was merely cumulative of other evidence that was eventually properly placed before the jury. After the jury had heard a Mobile city detective testify that McKinley was “one of the major dealers in narcotics in the City of Mobile,” and had listened to a Mobile deputy sheriff and a Pritchard detective state that McKinley had been engaged in selling heroin, the single statement that narcotics were recovered from McKinley when he was arrested paled into insignificance. This probable lack of prejudice was reinforced by the court’s prompt action in instructing the jury to disregard the unresponsive comment. The strong proof of widespread narcotics activity, which went into the record without objection, rendered the possibility that Smith’s comment prejudiced the question of predisposition gossamer indeed. Additionally, Agent Smith testified on redirect as to what he had heard about McKinley’s reputation for dealing in drugs, and the jury was made aware of McKinley’s prior marijuana conviction. In view of all of the testimony in the record, we hold that the interjection of this isolated statement into this case did not have a “substantial influence” on the jury. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), and United States v. Stein-koenig, 487 F.2d 225 (5th Cir. 1973).

Affirmed.

      . Battles was dead by trial time, shot, apparently from ambush, with a high-powered rifle. The jury, however, was not told of the circumstances of Battle’s death.

      . See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), reaffirming the majority opinion in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932).

      . Hearsay reputation evidence is admissible to prove predisposition in an entrapment case. See, infra, p. 552.

      . The Sixth Amendment confrontation clause applies to state trials. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L. Ed.2d 923 (1965).

      . This fringe involved Smith’s cumulative testimony as to what some officers had told him about McKinley’s reputation for dealing in drugs.

      . Our ultimate holding on this issue is fully maintainable on another ground. Even if the restrictions placed upon the cross-examination of Agent Smith amounted to error of constitutional dimensions, such error was “harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1969) ; and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

      . See, e. g., Odom v. United States, 377 F.2d 853 (5th Cir. 1967); and McMillan v. United States, 363 F.2d 165 (5th Cir. 1969).


text:
    UNITED STATES of America, Plaintiff-Appellant, v. ONE (1) 1969 BUICK RIVIERA AUTOMOBILE SERIAL NO. 69-49487 EUC 187877, Defendant-Appellee.
    No. 73-2877.
    United States Court of Appeals, Fifth Circuit.
    May 1, 1974.
    Robert N. Reynolds, Asst. U. S. Atty., Robert Rust, U. S. Atty., Miami, Fla., for plaintiff-appellant.
    Earl L. Denney, Jr., Edna L. Caruso, West Palm Beach, Fla., Wm. M. Howell, Jacksonville, Fla., for defendant-appel-lee.
    Before BROWN, Chief Judge, and TUTTLE, and SIMPSON, Circuit Judges.
   TUTTLE, Circuit Judge:

The issue on appeal is narrow and straight forward: Whether a dismissal with prejudice of a criminal indictment charging violations of 21 U.S.C.A. § 841(a)(1) and § 952(a), marijuana importation, bars a subsequent forfeiture action brought under 19 U.S.C.A. § 1595a(a) and 49 U.S.C.A. § 781, when the two actions arise out of the same transaction ?

The case was submitted to the district court on stipulated facts on the basis of which both parties moved for summary-judgment. Robert Gustin, intervening claimant and owner of the defendant-car, had used the car to drive to the post office in Delray Beach, Florida, where he picked up two packages of marijuana which had been sent to him from Jamaica, British West Indies. After procuring the two packages, he placed them in the trunk of the defendant which was in the parking lot adjacent to the post office. Gustin was arrested and charged with unlawful importation of marijuana and possession with intention to distribute. These charges were dismissed with prejudice by the same court which had the instant forfeiture case before it. When the present action was brought, the district court disallowed the forfeiture action. 358 F.Supp. 358 (S.D.Fla. 1973). We reverse.

The district court and the appellee rely on the punitive nature of the forfeiture, United States v. United States Coin and Currency, 401 U.S. 715, 718, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), and the prior adjudication, the dismissal with prejudice of the criminal suit, to defeat the forfeiture on collateral estoppel, Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684 (1886); United States v. Rosenthal, 174 F. 652 .(5th Cir. 1909), or double jeopardy grounds. We disagree and uphold the forfeiture on the basis of the Supreme Court’s affirmance of our decision in United States v. One Lot Emerald Cut Stones and One Ring, 461 F.2d 1189 (5th Cir.), aff’d per curiam, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972), and on the plain meaning and purpose of the statutes.

The Supreme Court decision in One Lot Emerald Cut Stones and One Ring distinguishes the earlier Coffey holding, on the collateral estoppel consequence of an acquittal on a prior criminal charge, on the grounds that it may have failed on an issue not present in the civil forfeiture proceeding, i. e. intent. 409 U.S. at 234-235, n. 5. Of course, in this case, there is no indication that any issue was actually litigated by the dismissal with prejudice of the prior criminal charge. Additionally, the Supreme Court pointed out that the doctrine of collateral estop-pel does not take into account the different burdens of proof in criminal and civil suits. 409 U.S. at 235.

Concerning the double jeopardy claim, it is sufficient to cite further the Supreme Court language in One Lot Emerald Cut Stones and One Ring:

“If for no other reason, the forfeiture is not barred by the Double Jeopardy Clause of the Fifth Amendment because it involves neither two criminal trials nor two criminal punishments. ‘Congress may impose both a criminal and a civil sanction in respect to the same act or omission; for the Double Jeopardy Clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense.’ Helvering v. Mitchell, supra, [303 U.S. 391] at 399 [58 S.Ct. 630, 82 L.Ed. 917]. See also United States ex rel. Marcus v. Hess, 317 U.S. 537, [63 S.Ct. 379, 87 L.Ed. 443] (1943).” 409 U.S. at 235-236.

Forfeiture under these statutes, 19 U.S. C.A. § 1595a(a) and 49 U.S.C.A. § 781, is a civil sanction. 286-237. Cf. 409 U.S. at

The statutes, 19 U.S.C.A. § 1595a(a) and 49 U.S.C.A. § 782 provide under the facts of this case for civil proceedings resulting in forfeiture on the showing of two elements. The first is that the substance has been illegally imported, not necessarily by the owner of the defendant-vehicle. One Lot Emerald Cut Stones and One Ring v. United States, supra, 409 U.S. at 234. The second is that the defendant-vehicle must have been used in the facilitation of transporting, concealing, possessing (or otherwise under the language of the statute) the prohibited substance. From the stipulated facts between the parties, both these elements of proof are present. Cf. 19 U.S.C.A. § 1615.

Reversed and remanded.

      . The district equated the dismissal with prejudice with an acquittal.

      . Reliance on United States v. United States Coin and Currency, supra, 401 U.S. at 718, for the proposition that a forfeiture, although called civil, is criminal in nature for purposes of invoking double jeopardy, is misplaced. Cf. One Lot Emerald Cut Stones v. United States, supra, 409 U.S. at 236 n. 6. This case was concerned only with the issue of whether a forfeiture was sufficiently punitive in nature to allow the invocation of the fifth amendment right against self incrimination. 401 U.S. at 721-722, n. 10.

      . This provision states :
      “(a) Except as specified in the proviso to section 1594 of this title, every vessel, vehicle, animal, aircraft, or other thing used in, to aid in, or to facilitate, by obtaining information or in any other way, the importation, bringing in, unlading, landing, removal, concealing, harboring, or subsequent transportation of any article which is being or has been introduced, or attempted to be introduced, into the United States contrary to law, whether upon such vessel, vehicle, animal, aircraft, or other thing or otherwise, shall be seized and forfeited together with its tackle, apparel, furniture, harness, or equipment.”

      . This provision states:
      “Any vessel, vehicle, or aircraft which has been or is being used in violation of any provision of section 781 of this title, or in, upon, or by means of which any violation of said section has taken or is taking place, shall be seized and forfeited: Provided, That no vessel, vehicle, or aircraft used by any person as a common carrier in the transaction of business as such common carrier shall be forfeited under the provisions of this chapter unless it shall appear that (1) in the case of a railway ear or engine, the owner, or (2) in the case of any other such vessel or the owner or conductor, driver, pilot, or other person in charge of such vehicle or aircraft was at the time of the alleged illegal act a consenting party or privy thereto: Provided further, That no vessel, vehicle, or aircraft shall be forfeited under the provisions of this chapter by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while- such vessel, vehicle, • or aircraft was unlawfully in the possession of a person who acquired possession thereof in violation of the criminal laws of the United States, or of any State.”

      . An amelioration of the harsh effect of forfeiture on an innocent owner is provided by the proviso in the statutory provisions and 19 U.S.C.A. § 1618 (Supp.1973), providing for remission by appeal to the Secretary of Treasury. See United States v. United States Coin and Currency, supra, 401 U.S. at 721.


author: DYER, Circuit Judge:

text:
    ATLANTIC BANANA COMPANY, Plaintiff-Appellee, v. STANDARD FRUIT & STEAMSHIP COMPANY, Defendant-Appellant.
    No. 73-2941.
    United States Court of Appeals, Fifth Circuit.
    April 26, 1974.
    Rehearing Denied June 11, 1974.
    As Modified on Clarification June 27,1974.

      H. Barton Williams, Bernard Marcus, Paul A. Gaudet, Eberhard P. Deutsch, New Orleans, La., for defendant-appellant.
    Walter J. Suthon, Jr., Nigel E. Raf-ferty, Walter W. Christy, John Blackwell, New Orleans, La., for plaintiff-ap-pellee.
    Before DYER, MORGAN and RO-NEY, Circuit Judges.
   DYER, Circuit Judge:

In this diversity action, Standard Fruit and Steamship Company appeals from the district court’s judgment that a binding contract existed between Standard and Atlantic Banana Company for the purchase, importation and sale of Ecuadorian bananas and that Standard was liable for breach of the agreement. The district court awarded Atlantic $566,530.60 in damages, plus interest from the date of the interlocutory decree imposing liability. We affirm the court’s determination of liability, but reverse in part with respect to damages.

In 1960, the highly competitive American banana market was in disarray as a result of excessive importation of fruit from Central America. To stabilize import levels and reduce mounting corporate losses, Standard initiated negotiations with other banana importers concerning the establishment of importers’ cooperatives. Through joint efforts with competitors in purchasing and importing fruit, Standard hoped to achieve an orderly supply of bananas and thereby alleviate flooded market conditions. Standard’s overtures were rewarded, as Ecuadorian Fruit Import Corporation, which operated on the east and west coasts, agreed during the summer of 1960 to enter into an importing arrangement with Standard. Spurred by this success, Standard then contacted various importers operating in Gulf markets, Standard’s traditional competitive area, including Atlantic Banana Company of Miami, Florida. After several meetings, Atlantic and Standard orally agreed in December, 1960, to enter into a cooperative venture covering three Gulf ports. Under the agreement, Standard’s purchasing subsidiary would purchase Ecuadorian bananas for the accounts of both parties; both Standard and Atlantic would charter vessels to ship the fruit; the bananas would be unloaded and sold by the parties’ subsidiaries in the Gulf ports; and the parties would divide net profits equally pursuant to a monthly accounting. The parties agreed that Standard would assume primary responsibility for unloading and selling fruit discharged in New Orleans and that Atlantic would handle bananas shipped into Tampa and Galveston. The initial term of the cooperative venture was to expire on June 1, 1961, with automatic extension for another year unless notice of termination was given prior to April 30, 1961.

The parties began operations under the cooperative in early 1961. During the ensuing period of active and successful operations, successive written drafts of a formal contract were prepared by Standard and presented to Atlantic. No draft was signed by Atlantic, however, since various adjustments and modifications were continually being made by the bipartite committee which constituted the cooperative’s governing body and since no draft fully incorporated all terms already agreed upon. When the notice date in April, 1961 passed without either party’s terminating the agreement, Standard’s executive on the bipartite committee telegrammed Atlantic suggesting that until execution of the written agreement the parties should “continue informally under [the] terms [of the] unsigned contract.” Consistent with Standard’s suggestion, the parties continued under the arrangement without benefit of a written contract until April, 1962, when Atlantic, pursuant to a fervent request by Standard’s chief counsel, signed and returned a proposed draft prepared by Standard, which provided inter alia for six-months’ notice of termination. Along with the signed draft, Atlantic sent a five-point cover letter containing certain suggestions and amendments, each of which was acceded to telephonieally by Standard’s counsel before Atlantic signed the agreement. Upon receipt of the signed draft and cover letter, however, no Standard officer with executive authority signed or executed either document. Standard’s corporate secretary did attest to the written draft and placed the corporate seal thereon, but no other Standard officer ever signed the draft.

During the course of the negotiations concerning the written draft, a dispute arose over profits being realized by Atlantic on its stevedoring operations in Tampa and Galveston. Standard protested that under the arrangement all charges were to be at cost, with neither party realizing profits at the expense of the other. Atlantic rejected this interpretation, pointing out that the parties had initially agreed on fixed rates for stevedoring, as opposed to an “at cost” basis, and argued that Atlantic’s entire profit from the cooperative stemmed exclusively from its efficient stevedoring operations. Atlantic accordingly refused to alter its stevedoring rates, whereupon Standard threatened on several occasions to terminate the venture unless its interpretation prevailed. The parties’ relationship deteriorated during the remainder of 1962, and in December of that year, Standard notified Atlantic that the cooperative would be dissolved in March, 1963, despite Atlantic’s final capitulation on the stevedoring issue and its protest that the three-months’ termination notice was inadequate under the termination provision of the agreement. Following the dissolution of the cooperative in March, Atlantic revived its Ecuadorian purchasing operations,' which had been suspended during the existence of the cooperative, and chartered necessary vessels, but was unable to resume full-scale operations until June, 1963. This action for breach of contract followed.

The district court concluded that the parties had entered into a binding oral agreement in December, 1960; that the written accord of April, 1962 was also valid and enforceable; and that Standard’s notice of termination constituted a material breach of the agreement. Damages were ascertained for the following items: (1) the net profits which Atlantic would have realized during the three-month period extending from the termination of the contract until Atlantic’s full resumption of operations; (2) stevedoring profits which Atlantic’s subsidiaries would have realized but for the breach; (3) recovery for Atlantic’s overpayments to Standard during the term of the contract; (4) recovery of sales costs during the existence of the agreement for bananas marketed by Atlantic in excess of its commitment to sell fifty percent of the cooperative’s bananas, and (5) one-half of the net income realized from the sale of bananas aboard the M/V ONDINE and the M/V HAR GILEAD, two vessels in the service of Standard’s separate cooperative with Ecuadorian Fruit Import Corporation and which were diverted from New York to New Orleans as a result of a longshoremen’s strike on the east coast.

CONTRACT VEL NON

After a thorough review of the record, we are convinced that the district court rightly determined that the parties entered into a valid oral contract in December, 1960. The record is replete with evidence that the parties reached agreement on the material terms of the cooperative in late 1960. Statements and actions by both Standard and Atlantic following this oral accord completely belie the contention that the parties were merely engaged in a loose association precatory only in effect and terminable at will. In communicating with Atlantic, as well as its own stockholders and other importers, Standard referred to the arrangement as a “contract” or “agreement.” Highly specific terms governing various aspects of a complicated business arrangement were fully agreed upon, and the parties undertook full performance of the venture for a substantial period of time. In reliance upon Standard’s greater purchasing abilities in Ecuador, Atlantic dissolved its buying subsidiary and released certain vessels previously under charter. Conversely, Standard benefited directly from Atlantic’s effective sales organizations in Tampa and Galveston, which enhanced Standard’s penetration of markets served by those ports. Enjoying greater profits under the cooperative, both parties acted throughout the venture as if they were contractually bound by the 1960 agreement. As one of Standard’s own officers succinctly stated at trial: “[W]e were importing fruit every week, [so] there must have been some sort of agreement. One just doesn’t do this without any agreement.”

Despite this evidence, Standard urges that mere “joint operations” were being conducted, numerous details of which were never fully agreed upon, and that as a consequence no “meeting of the minds” was ever reached. Underlying Standard’s contention is the unfounded thesis that if subsequent disputes arise over material terms of an agreement, then the terms themselves are without binding force. Standard does not dispute, nor could it, that material details of this complex venture were sufficiently agreed upon in December, 1960 to permit successful operations over a lengthy period. For example, there is no disagreement that stevedoring rates under the cooperative were fixed by the parties at exact amounts. What Standard argues is that the parties had different subjective views as to what these fixed rates represented and that this variance in subjective attitude rendered contractual assent nugatory. Even assuming arguendo the validity of this subjective theory of contract law, we cannot find clearly erroneous on the evidence of record the judge’s conclusion that profits on the parties’ various operations were, in fact, originally contemplated. On the contrary, substantial testimony supports the view that Standard itself was realizing profits of five cents or more on the ten cents per stem purchasing commission, ostensibly designed to cover administrative costs, while simultaneously taking Atlantic to task for enjoying profits from stevedoring rates, precisely fixed by the parties, at a level below that charged by Standard’s own stevedoring firm, and commensurate with Atlantic’s then prevailing rates applicable to other customers.'

This record abundantly supports the conclusion that more than informal, non-obligatory “joint operations” were conducted, even though the agreement was never signed by both parties after being reduced to writing. Moreover, under Louisiana law, where one party drafts a contract and presents it to the offeree for signing, the contract is valid and binding upon the offeree’s acceptance even if the offeror subsequently fails or refuses to sign the document. Thus, even accepting Standard’s argument that execution of the formal contract was a condition precedent to liability under Louisiana law, Sterkx v. Gravity Drainage Dist. No. 1 of Rapides Parish, La.App.1968, 214 So.2d 552, 553, substantial Louisiana authority supports the conclusion that a binding formal agreement was entered into by the parties. See Auto-Lec Stores v. Ouachita Valley Camp No. 10, W.O.W., 1936, 185 La. 876, 171 So. 62, 64; Dyer v. Varnell, La.App.1960, 121 So.2d 598, 599.

In addition, no serious contention can be made that the parties intended to enter legally binding relations only upon subsequently reducing the oral agreement to writing. See, e, g., Breaux Brothers Construction Co. v. Associated Contractors, Inc., 1954, 226 La. 720, 77 So.2d 17; Ferre Canal Co. v. Burgin, 1901, 106 La. 309, 30 So. 863. Instead, the evidence is clear that, as prudent businessmen, the parties simply intended to memorialize their already obligatory agreement, rather than create a condition precedent to liability.

Since a valid oral agreement was reached on all material terms of the venture, Standard committed an actionable breach by its premature termination of the cooperative, an action inconsistent with the obligation which it assumed. L.S.A.-C.C. art. 1931; United Shoe Stores Co. v. Burt, La.App.1932, 142 So. 370, 371. Its threats of termination issued prior to December, 1962, were under no reasonable view actual notice of termination, as Standard would now have it, and thus inadequate notice of cancellation was afforded. Even assuming that the formal, written contract was binding on neither party, we nevertheless conclude that the document, with its provision for six-months’ notice of termination, accurately reflected in this respect the terms of the binding oral accord entered into earlier. Indeed, the written draft signed by Atlantic specified that it was executed as of July 1, 1961, although it was in actuality signed only in 1962. Furthermore, even if we accept Standard’s argument that no precise notice provision governing a post-June 1, 1961 termination was agreed upon at meetings following the original termination notice date of April 20, 1961, the six-months’ notice called for by the parties themselves in the written draft constitutes, under the circumstances of this complex business arrangement, “reasonable notice” which the law requires to terminate a valid contract. Cf. Sylvan Crest Sand & Gravel Co. v. United States, 2 Cir. 1945, 150 F.2d 642, 644.

DAMAGES

The court’s itemization of damages, including lost profits to Atlantic’s subsidiaries on stevedoring, is fully supported by the evidence, except with respect to damages arising from Standard’s refusal to remit to Atlantic proceeds from the sale of fruit aboard the ONDINE and HAR GILEAD. The evidence unmistakably shows that these two ships were connected with Standard’s entirely separate import cooperative with Ecuadorian Fruit Import Corporation and were discharged in New Orleans only because of a forced diversion from New York. The significance of this separate ownership of the cargo is that the contract between Standard and Atlantic expressly provided that the parties could continue to compete with each other during the existence of the cooperative. We agree with Standard’s contention that the discharge of these two vessels by another cooperative fits squarely within this understanding by the parties, as reflected in the written draft. Moreover, Atlantic had no interest whatsoever in the cargo under any theory of the transaction until the vessels’ arrival in New Orleans. It is of critical importance in this respect that the terms of the Standard-Atlantic arrangement provided that bananas would be purchased in Ecuador for the accounts of both parties. Atlantic would thus become liable to Standard under the cooperative arrangement at the time of purchases of bananas in Central America. With respect to the cargo of the ONDINE and HAR GILEAD, on the other hand, Atlantic indisputably was subjected to no liability to Standard at any point, since the fruit was purchased and shipped for the account of an entirely different arrangement. Viewed in this light, these two transactions are clearly outside the coverage of the cooperative. This element of damages cannot stand. L.S.A.-C.C. art. 1934; Harper v. Home Indemnity Co., La.App 1962, 140 So.2d 653, 660.

In all other respects, including the award of interest from the date of the interlocutory decree finding liability, the judgment is correct. We therefore affirm as to liability and as to damages except those damages arising from the shipments on the ONDINE and HAR GILEAD, which we reverse. The case is remanded to the district court for further proceedings consistent with this opinion.

Affirmed in part, reversed in part and remanded.

      . It is true that a Standard intra-company memorandum, a copy of which was delivered to Atlantic, stated that Standard’s president had signed the contract. It is also true that affixing the corporate seal on a contract constitutes prima facie evidence that it was affixed by proper authority. The evidence shows, however, that Standard’s president actually signed a different, tripartite cooperative agreement which was mistakenly assumed by the author of the memorandum to be the Standard-Atlantic contract. Despite the prima facie effect of the secretary’s affixing Standard’s corporate seal, a determination that the written contract was duly entered into and was therefore binding on the parties is unnecessary to the result in this case, since an enforceable oral agreement was assented to by both parties.

      . As the district court found, the parties began operations under the oral agreement almost immediately, before a formal agreement was ever drafted. Only a memorandum enti-tied “Gulf Ports Banana Merchandising Agreement” was prepared during this early period, but this document was directed primarily to a Chilean businessman, not Atlantic, and was designed for informational purposes, not for formal execution. Appendix, Vol. IV, at pp. 1088 et seq.

      . The district court properly concluded that notice of termination of a contract must be sufficiently clear and unequivocal to clearly apprise the other party of the action being taken. Unequivocal notice was afforded only in December, 1962 that the cooperative would be terminated during March, 1963. Oonsiderably less than six-months’ notice was therefore afforded.

      . The court properly found that under the circumstances of this case Atlantic could recover damages on behalf of its stevedoring subsidiaries.

      . The fact that Atlantic participated in the sale of cargo aboard the M/V ASSEBURG in December, 1962, which was also in the service of the Standard-Ecuadorian Fruit cooperative is irrelevant in determining Atlantic’s rights in the proceeds from the later sale of cargo aboard the ONDINE and HAR GILEAD. The evidence clearly shows that Ecuadorian Fruit’s one-half interest in the ASSEBURG’s cargo was sold to Atlantic before the vessel was unloaded in Tampa. Upon the sale of Ecuadorian’s one-half interest, Atlantic as part owner of the cargo was obviously entitled to participate with Standard in the net profits derived from subsequent sales. No such sale of Ecuadorian’s interest to Atlantic occurred with respect to the ONDINE and HAR GILEAD.