author: CLARK, Circuit Judge:

text:
    Fred A. HAGUE, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellee, Sears Roebuck and Company, Intervenor.
    No. 73-3889.
    United States Court of Appeals, Fifth Circuit.
    Nov. 18, 1974.

      Charles T. Sykes, Jr., Crockett Lindsey, Gulfport, Miss., for plaintiff-appellant.
    Ben H. Stone, Robert C. Galloway, Gulfport, Miss., for defendant-appellee.
    Eldon L. Bolton, Jr., Gulfport, Miss., for Sears.
    Before COLEMAN, CLARK and RO-NEY, Circuit Judges.
   CLARK, Circuit Judge:

The sole issue on this appeal is the efficacy, under Mississippi law, of an “Absolute Release.” The release was given by an employee to his employer in connection with a lump-sum compromise payment of a disputed claim for benefits under the Mississippi Workmen’s Compensation Law prior to the commencement of an action against an asserted third party tort-feasor. The Mississippi Workmen’s Compensation Commission (Commission) entered an order in the compensation claim proceedings between the employee and employer approving the execution of the release. The district court held the release barred a judgment-based garnishment action against an insurer that allegedly provided liability coverage to the third party judgment-debtor. We reverse.

Fred A. Hague was employed by Sears, Roebuck & Company (Sears). On February 12, 1970, while operating an automobile within the course and scope of his employment, he was struck from the rear by a taxi. The cab, owned by the Yellow Cab and Car Rental of Gulfport, Mississippi, Inc. (Yellow Cab), was operated by James Watkins. Hague subsequently filed a claim for benefits with the Compensation Commission. Sears, a self-insurer under the Compensation Law, contested the extent of Hague’s temporary and permanent disability as well as his loss of wage earning capacity. After a hearing, the disputed claim was settled, and on October 19, 1971, a lump sum compromise payment was approved. Sears, as- the employer and a self-insurer (carrier), was directed to pay 6,656.34 dollars to Hague “in full and complete discharge and release of all responsibility of said employer and carrier under the terms of the Mississippi Workmen’s Compensation Act or otherwise.” Hague was further authorized by the Commission “to execute any receipt, release or other instruments required by the said employer and carrier to evidence their release, acquittal and discharge herein.” The release in question was then executed by Hague and delivered to Sears. Upon payment to Hague by Sears, both parties executed the Commission’s Form B-31, a Final Report and Settlement Receipt, showing that the entire sum paid to Hague was attributable to an agreed stipulation of the parties setting the compensation due for 450 weeks of permanent partial disability.

On February 2, 1972, Hague commenced an action in the Circuit Court of Harrison County against Yellow Cab and Watkins. Yellow Cab duly answered but Watkins did not, and one year later, a default judgment was taken against him in the amount sued for, 150,000 dollars. Hague nonsuited as to Yellow Cab and caused a writ of garnishment to issue from that court against Liberty Mutual Insurance Company (Liberty Mutual), the appellee here, on the default judgment. Liberty Mutual removed the cause to the district court from which this appeal comes, where Sears intervened to protect its subrogation rights. A number of affirmative defenses were advanced by Liberty Mutual including fraud between the original third-party litigants, prejudicial lack of notice and failure to cooperate by its insured, limited liability and the bar of the release taken by Sears. The district court based its grant of summary judgment to Liberty Mutual solely upon the release.

Section 30 of the Mississippi Workmen’s Compensation Law expressly provides that the acceptance of compensation benefits does not affect the rights of an employee vis-a-vis third parties. It both subrogates the employer or its insurance carrier to the extent of benefits paid and confers upon such employer and carrier an independent right to initiate suit against the third party in the name of the insured. The same section further provides that, before an action is brought, any settlement of a claim against a third party shall be subject to the approval of the Commission.

Because a pre-suit release by a Workmen’s Compensation claimant in favor of a third party tort-feasor executed without approval of the Commission is invalid under Mississippi law, Powe v. Jackson, 236 Miss. 11, 109 So.2d 546 (1959), this appeal turns not upon the terms or extent of the release, but upon whether the Commission, in approving the lump sum compromise between Hague and Sears, impliedly approved the settlement of any third-party rights of these two contracting parties as well. The district court’s reliance upon Pearce v. Pierce, 214 Miss. 344, 58 So.2d 824 (1952), to give the language of the release a broad operative effect, is therefore inapposite.

To determine the construction to be given to the Commission’s release approval action we must look to the proceedings in which it acted, and especially to the petition and order. Hague’s claim for compensation benefits was made in MWCC file No. 70-09708. Sears’ answer admitted coverage, but denied that the extent of the benefits claimed was correct. After a hearing, but before any adjudicatory action of the Attorney Referee or Commission, Hague petitioned the Commission to allow him to accept an offer of compromise from Sears. While the petition recites that Hague’s auto was struck from behind by “a Yellow cab,” it does not name the Yellow Cab and Car Rental of Gulfport, Mississippi or James Watkins or Liberty Mutual Insurance Company. The circumstances of the collision are otherwise unrelated, and no mention is made of the extent of Hague’s injuries or disabilities. The Commission is given no basis upon which it could assess culpability or damages and no attempt is made to invoke the Commission’s power to authorize a third-party release under Section 30 of the Compensation Law. The prayer sought authority only to “fully acquit and discharge said employer and carrier from any further liability because of said accidental injuries,” and to “execute any and all receipts, releases, acquittances, and every instrument required by said employer and carrier to effectuate the purposes hereof.” It should also be noted that the petition and order were styled as proceedings under Section 9(i), the text of which relates only to settlements for compensation benefits.

The Commission’s order required Sears to pay Hague the agreed sum “in full and complete discharge and release of all responsibility of said employer and carrier under the terms of the Mississippi Workmen’s Compensation Act or otherwise.” As previously stated, it further authorized the execution of any document required by Sears as employer and carrier “to evidence their release, acquittal and discharge herein.”

In Smith v. Bush, 312 F.2d 131 (5th Cir. 1963), we negated a release to a third party given by a Mississippi Workmen’s Compensation claimant, who five months previously had received Commission approval for a Section 9(i) settlement with his employer and its carrier. Since the district court in that case also relied solely upon the later third-party release, the Smith opinion did not have any occasion to indicate how broad the Commission’s prior employer-employee approval had been. It merely held that the Commission’s 9(i) employer-employee approval action could not constitute “an abdication of its jurisdiction over settlement of a negligence claim against a third party tort feasor.”

In Powe v. Jackson, supra, Justice Ethridge established that the Commission is charged with a duty to protect employees from improvident and unwise releases of third-party claims and to preserve the subrogation and indemnity rights of the employer or insurer against such parties. We refuse to attribute to the Commission either an intention to adjudicate without facts or to inadvertently approve a release which gratuitously destroyed the very rights which the Mississippi Supreme Court has declared the Commission was duty-bound to' protect.

Both Powe and Smith bar any finding that the Commission impliedly sanctioned the release of third-party rights by granting authority for the employer-employee settlement in tjxis case. Without Commission approval, even a release which unequivocally included third-party claims would be void. A fortiori, the release document which formed the basis for the grant of the summary judgment appealed from cannot validly affect any rights Hague may have against third parties.

Reversed and remanded.

      . Miss.Code Ann. § 71-3-1 et seq. (1972).

      . The payment was authorized pursuant to Section 9(i) of the original Act, which appears as § 71-3-29 of the 1972 Code and reads as follows:
      Compromise, commutation, and lump sum payments.
      Rules of the commission shall govern compromise payments where the prescribed schedules are not applicable and which, in its discretion, may be made in cases where it is not possible to determine the exact extent of disability, as for example in certain injuries to the back or head. The commission shall also have full authority to adjudicate the disposition of death claims. Commutation and lump sum settlement payments shall be governed by rules of the commission, 'and shall not be made except when determined to be in the best interest of the injured worker or his dependents, the commission having final authority in such questions.
      Due obviously to an error in copying from a form of order used in another proceeding, the order here actually directs that payment be made by Ingalls Shipbuilding Corporation and American Mutual Liability Insurance Company. Both of these parties were complete strangers to this transaction. No point was made of this patent mistake in the district court or on this appeal.

      . Although the document names no specific releasee other than Sears, it purports to release every person “who may be in any manner whatsoever liable” in connection with the accident and extends to all types of claims. It concludes: “This release covers all liability of whatsoever nature, either under the Workmen's Compensation Law of the State of Mississippi, the common law or otherwise, regardless of the source of liability, obligation or exposure.”
      The release, considered alone, clearly would be sufficient on its face to constitute a bar of an action of the type later brought by Hague against Yellow Cab and Watkins, if properly pled therein. In view of our holding as to the limited extent of the validity of the release document, itself, we do not reach the contention that even a duly approved release would not constitute a defense to the present garnishment on default judgment proceedings.

      . We similarly limit our review to that issue. We decline to rule on the district court’s disposition of the other pending motions, which included a motion for summary judgment by Hague, and expressly disclaim any intimation as to the appropriate dispositions of these motions or any other facet of this cause.

      . Miss.Code Ann. § 71-3-71 (1972).

      . See n. 2 above.


source: Caselaw Access Project

author: GIBBONS, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellant in No. 73-1886, v. Philip L. BORNSTEIN, Appellant in No. 73-1885, et al. Appeal of Gerald PAGE, in No. 73-1887.
    Nos. 73-1885 to 73-1887.
    United States Court of Appeals, Third Circuit.
    Argued May 17, 1974.
    Decided Sept. 4, 1974.
    Certiorari Granted Jan. 27, 1975.
    See 95 S.Ct. 823.

      Jack Bailan, Fairlawn, N. J., for appellant in No. 73-1885 and appellee in No. 73-1886.
    Jonathan L. Goldstein, U. S. Atty., Caroline E. Arch and William A. Carpenter, Asst. U. S. Attys., Newark, N. J. for appellant in No. 73-1886 and appellee in Nos. 73-1885 and 73-1877.
    William Rossmoore, Newark, N. J., for appellant in No. 73-1887 and appel-lee in No. 73-1886.
    Before SEITZ, Chief Judge, and VAN DUSEN and GIBBONS, Circuit Judges.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

Appeals by the defendants and an appeal by the plaintiff United States of America bring before us for interpretation the False Claims Act. Act of March 2, 1863, ch. 67, 12 Stat. 696, 698, 31 U.S.C. § 231. The United States on November 3, 1967 brought an action for double damages and forfeitures against defendants Philip L. Bornstein, Gerald Page, individuals, and United National Labs, Division of Sonora Electromatics, Inc., a New Jersey corporation. Born-stein and Page were officers and owners of that corporation, which by order of July 19, 1973 was dismissed as a defendant. The individual defendants are referred to hereafter as “United.” The case was tried to the district court on a stipulation of facts. On June 26, 1973 the district court filed an opinion determining that judgment should be entered in favor of the United States and against United for double damages, in the sum of $79.40, and forfeitures in the sum of $70,000. A judgment was entered for $70,079.40 and costs. United appeals from the judgment awarding $70,000 in forfeitures. The United States appeals from the award of $79.40 in double damages,

I. THE FRAUDULENT SCHEME

In August 1962 the United States Signal Supply Agency entered into a supply contract with Model Engineering and Manufacturing Corporation, Inc. (Model) under which Model was to supply radio kit sets to the Army. Each radio kit was to contain two electron tubes designated “JAN type 4 x 150G per MIL E-l specifications.” “JAN” stands for Joint Army Navy qualification approval standard. Tubes may be “JAN” branded by the manufacturer only after they have passed government inspection at the place of manufacture during the manufacturing process. As proof of such source inspection, the government inspector imprints his “Eagle” acceptance stamp on packing lists accompanying each shipment of tubes. He also affixes his signature to a written certification that the tubes have passed all the required tests, in this case those specified in MIL E-l. During the relevant time the only authorized manufacturer of JAN type 4 x 150G tubes was Eitel McCullough, Inc. (Eimac). Although JAN type 4 x 150 G tubes are manufactured to military specifications, surplus or obsolete tubes of that model are commercially useable. On April 30, 1963 Arthur H. Richardson, Inc. (Richardson) a franchised distributor for Eimac, purchased 451 tubes, JAN type 4 x 150G, from Ei-mac which had been placed in a termination inventory ' because of a design change, for $15.52 a tube. In May 1963 United wrote to Model that it could supply JAN type 4 x 150G tubes for $32.00 per tube. The market price for such tubes from Eitel’s current production was then $40.00. In July, United purchased ten JAN type 4 x 150G tubes from Richardson and shipped them to Eitel for preliminary inspection. Model advised United respecting the ten sample tubes that they were electrically and physically acceptable but had no code date and no JAN marking. In December 1963, Model issued to United a purchase order for 1008 JAN type 4 x 150G tubes at $32.00 a tube. United made an initial delivery of 120 tubes, which Model returned as unacceptable because they were not JAN labeled and had not been government source inspected. United assured Model it could deliver JAN tubes to fill the purchase order. It purchased 380 JAN type 4 x 150G tubes from Richardson for $17.50 each, and affixed on each tube the JAN designation, the manufacturer’s qualification, code, and the acceptance date. United then shipped each tube to Saxon Laboratories, Inc. (Saxon) for testing. At Saxon’s plant the impression of a facsimile government inspector’s “Eagle” stamp was affixed to twenty-one separate packing lists identifying each tube by serial number. The twenty-one packing lists covered twenty-one boxes, which included a total of 397 tubes. The stipulation does not disclose the source of the seven tubes in addition to the 390 acquired from Richardson. The twenty-one boxes were shipped to Model in three shipments. With each shipment United issued to Model a “Certificate of Compliance” certifying that the parts complied with the specifications referred to in the purchase order. Model included the 397 tubes in its shipments to the Signal Supply Agency, and filed with the United States thirty-five invoices covering the entire contract price. The United States paid the thirty-five invoices.

Later the government learned that some 442 of the JAN type 4 x 150G tubes shipped by Model were falsely branded JAN. It replaced these tubes with JAN type 4 x 150G tubes which it purchased for $40.82 each or a total of $18,042.44. It then made a claim against Model. In November 1964 Model paid the United States $18,000 on account of the 442 falsely branded tubes. The government was able to trace 397 of the 442 tubes by serial number to United. . The government retained the 397 tubes which have a commercial value not clearly established by the stipulation. The stipulation reflects no costs to the government other than $40.82 to replace the misbranded tubes.

II. THE DISTRICT COURT DECISION

The district court calculated the government’s damages by multiplying the $40.82 replacement cost by 397, for a total of $16,205.54, and by deducting from that amount $16,165.84. The latter figure was calculated by dividing the $18,000 refund from Model by 442, the total number of falsely labeled tubes, or $40.72 a tube and multiplying $40.72 by 397. Thus the district court calculated the government’s damage at ten cents a tube ($40.82 —$40.72) or $39.70, and doubled that figure to $79.40.

The district court calculated the statutory forfeiture on the basis of a single $2,000 forfeiture for each of the 35 invoices submitted by Model to the United States for payment.

III. THE GOVERNMENT’S APPEAL

The government contends on appeal that the district court erred in calculating damages. It contends that the damage award should have been $32,411.08, which it calculates: 397 x $40.82 = $16,205.54 and $16,205.-54 x 2 = $32,411.08. Since it is the plaintiff it had the burden of proving damages. Its claim is, in the words of the statute, for “double the amount of damages which the United States may have sustained by reason of the doing or committing such act.” 31 U.S.C. § 231. Nowhere in its brief does it demonstrate the relationship between the figure of $16,205.54 and the amount of damages which it sustained. Rather it makes the disingenuous contention that the $18,000 refund by Model should be entirely omitted from the calculation of damages on the authority of the collateral source rule. This despite the fact that it stipulated :

“In November, 1964, Model paid the United States $18,000 for the Government’s claim relating to the payments of the 442 falsely branded JAN 4 x 150G tubes which are referred to in the Complaint.” Appellants’ [Born-stein and Page] Appendix at 16a.

To avoid the effect of its stipulation that it was refunded $40.72 for every tube, it asserts that the $18,000 payment should be disregarded entirely because it took the form of a setoff against funds due to Model on other contracts. The government’s answers to interrogatories included in the stipulation, paragraph 25, establish that this form of payment resulted because Model was experiencing a shortage of working capital. In accepting Model’s offer of an $18,000 set-off the Assistant Attorney General wrote:

“Our claim against Model arose through the failure of that company to furnish electron tube type 4 x 150G to the Government in accordance with the specifications set forth in Contract No. DA-36-039-AMC-01080(E) dated August 29, 1962, awarded by the United States Army Signal Supply Agency, Philadelphia, Pennsylvania. The damages were computed to total $18,042.44 based on the receipt by the Department of the Army of 442 nonconforming and surplus tubes.” (emphasis added) Appellant’s [Government] Appendix at A-5.

By some reasoning process which escapes us, the government concludes that the damages referred to in the letter are different from the damages caused by United’s false claim, even though in both instances they refer to 397 of the same tubes and to a replacement cost of $40.-82 per tube. By similar logic the government could recover damages of $40.82 a tube from United had it never paid the Model invoices in the first place.

We do not suggest that in a claim for double damages under the False Claims Act the government’s recovery is limited to the replacement cost of nonconforming materials. Nor need we decide in this case whether the ordinary contract rules of damages apply. The point is that the government was the plaintiff and had the burden of proving damages. It proved by stipulation no other element of damage to it than the $40.82 replacement cost of the tubes, for $40.72 of which it had been reimbursed by Model. Its proof of damages established no greater loss than 10 cents a tube. Nor do we suggest that had the claim against Model been for forfeitures under the False Claims Act the recovery of such forfeitures should be applied in reduction of the claim for damages against United. There is no suggestion in the stipulation that any claim for forfeitures was asserted against Model, or that the government even sought double rather than single damages from that source. In the record before us the government stipulated that the Model payment was for damages simpliciter. We cannot at the appellate level disregard the record which the plaintiff made in the district court.

Alternatively the government contends that if the Model payment should be credited in reduction of its damage claim the credit should not have been applied to the single damage amount but to that amount doubled. In United States v. Klein, 230 F.Supp. 426 (W.D.Pa.1964), aff’d per curiam, 356 F.2d 983 (3d Cir. 1966), the Veterans Administration was falsely induced to make insured loans. Certain amounts were received by the Veterans Administration after foreclosure of the properties in reduction of the loans. The district court applied these credits before doubling damages. We affirmed without opinion. The district court in the instant case followed Klein. The government relies on United States v. Sytch, 257 F.2d 475, 478-479 (3d Cir. 1958), in which the defendants fraudulently overstated costs and obtained over payments from the Veterans Administration for operating a school in the years 1948-50. A counterclaim was filed for an amount due under a separate contract for 1951. This amount was conceded by the government. It was applied as a credit after damages for false claims under the 1948-50 contracts were doubled. The distinction is obvious. A credit on an unrelated second contract may be applied in reduction of the defendants’ total indebtedness, but it has no relation to the amount of damages due on the first claim. Payments made in reduction of the loss on the first claim, however, are an essential part of the proof of the amount of damages. The determination of the amount of damage must be made before it is doubled. In the instant case the claim against Model was for the same loss as is asserted against United. The district court correctly followed Klein rather than Sytch. The only actual damage proved by the government was ten cents a tube.

One other aspect of the damage equation which the district court did not take into account was the actual value of the nonconforming tubes. These are still in the government’s possession, and have a commercial market value, according to the stipulation, of between $15.00 and $17.50 a tube. United urged the district court that this value must be taken into account. United did not, however, appeal from that part of the judgment awarding the government $79.40 in damages. If we had accepted either of the government's contentions as to the calculation of damages the amount of any credit for the commercial market value of 397 tubes would be a significant issue. We do not reach it because United does not contest the $79.40 award.

IV. UNITED’S APPEAL

United contends that the district court erred in assessing 35 forfeitures of $2,000 based on the fact that Model had presented 35 invoices to the United States. Each of these invoices included claims for payment of JAN type 4 x 150G tubes misbranded JAN by United. It did not, however, prepare the invoices or have any knowledge of the manner in which Model’s claims for payment were presented. It knew, of course, that Model would seek payment from the United States. United urges that there should be (1) a single forfeiture because the tubes were supplied under a single government contract, or because it furnished the tubes under a single purchase order, or (2) three forfeitures, because it made only three shipments, issued only three invoices, and received only three payments from Model, or (3) eight forfeitures because the government made only eight payments, or (4) at most twenty-one forfeitures because only 21 fraudulently stamped packing lists and 21 false certificates of compliance were prepared. It argues that the number of invoices made out by Model was entirely fortuitous and unrelated to any activity by it. In the district court the government asserted at one time 38 forfeitures: one for each of the 35 Model invoices, one for the false branding of 397 tubes, one for affixing the facsimile “Eagle” stamp on 21 packing lists and one for the issuance of 21 false Certificates of Compliance. At an earlier time it asserted 30 forfeitures in the mistaken belief that .there were 30 invoices from United to Model rather than three. On appeal the government is satisfied with 35 forfeitures.

United does not contend that the Act is inapplicable to a subcontractor who did not deal directly with the government. Such a contention is foreclosed by United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943) and United States v. Rohleder, 157 F.2d 126 (3d Cir. 1946). Rather, it contends that the number of forfeitures must somehow be related to the incidence of fraud by it, rather than left to the fortuity that the prime contractor submitted thirty-five invoices rather than one.

The text of the statute gives little guidance. The text set forth at 31 U.S. C. § 231 is not an enacted codification. The original version appeared in Act of March 2, 1863, ch. 67, 12 Stat. 696. Section 1 of that Act subjected military personnel to courts-martial for presenting a false claim, and § 3 subjected persons not in the military to double damages and a $2,000 forfeiture. The double damage feature undoubtedly was included because § 3 of the Act provided for qui tam actions in which the private informant pursuing the claim on behalf of the United States received one-half of the recovery. See United States ex rel. Marcus v. Hess, supra, Toepleman v. United States, 263 F.2d 697 (4th Cir.), cert. denied, 359 U.S. 989, 79 S.Ct. 1119, 3 L.Ed.2d 978 (1959). In the Revised Statutes, which were enacted into positive law, the 1863 Act was replaced by § 5438, which subjected a person not in the military to a fine and imprisonment for presenting a false claim, § 3490, which subjected a person not in the military to double damages and a $2,000 forfeiture for committing an act prohibited by § 5438 and § 3493 which reenacted the qui tam provision of § 6 verbatim. Thus in the Revised Statutes the acts for which forfeitures under § 3490 could be imposed were those set forth in the criminal provisions of § 5438. The criminal provisions of § 5438 were amended by the Act of May 30, 1908, ch. 235, 35 Stat. 555, and codified and reenacted as section 35 of the Criminal Code in Act of March 4, 1909, ch. 321, § 35, 35 Stat. 1095-1096. Section 35 of the Criminal Code was amended by the Act of Oct. 23, 1918, ch. 194, 40 Stat. 1015-1016, by Act of June 18, 1934, ch. 587, 48 Stat. 996, and by the Act of April 4, 1938, ch. 69, 52 Stat. 197. In the 1948 recodification of the Criminal Code § 35 was split into two sections, 18 U.S.C. § 287 (false claims) and 18 U.S.C. § 1001 (false statements) and reenacted into positive law. Sections 287 and 1001 of Title 18 remain today as recodified in 1948. The civil damage and forfeiture provisions of § 3490 of the Revised Statutes have remained unaltered since the enactment of that revision. The operative law today is § 3490 which reads:

“Any person not in the military or naval forces of the United States, or in the militia called into or actually employed in the service of the United States, who shall do or commit any of the acts prohibited by any of the provisions of section fifty-four hundred and thirty-eight, Title ‘Crimes,’ shall forfeit and pay to the United States the sum of two thousand dollars, and, in addition, double the amount of damages which the United States may have sustained by reason of the doing or committing such act, together with costs of suit; and such forfeiture and damages shall be sued for in the same suit.” R.S. § 3490 (1878).

One might have thought that froni the successive amendments of the criminal provision referred to the courts might have perceived a Congressional intention that the liability for forfeitures under § 3490 continue to be defined by those amendments. The Supreme Court has indicated otherwise, however. See United States v. Neifert-White Co., 390 U.S. 228, 228 n. 1, 88 S.Ct. 959, 19 L.Ed.2d 1061 (1968); Rainwater v. United States, 356 U.S. 590, 590 n. 1, 592, 78 S.Ct. 946, 2 L.Ed.2d 996 (1958). The acts for which forfeitures may be imposed under § 3490 are those which were prohibited by § 5438 of the Revised Statutes which as here relevant reads:

“Every person [1] who makes or causes to be made, or presents or causes to be presented, for payment or approval . . . knowing such claim to be false ... or [2] who, for the purpose of obtaining or aiding to obtain the payment or approval of such claim, makes, uses, or causes to be made or used, any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry, or [3] who enters into any agreement, combination, or conspiracy to defraud the government of the United States ... by obtaining or aiding to obtain the payment or allowance of any false or fraudulent claim . . . shall be imprisoned at hard labor . ”

The statute defines additional offenses with respect to federal property not here relevant. Three' separate offenses possibly relevant to the instant case are set forth. These may be paraphrased as [1] making a false claim on the government either directly or through an agent, [2] making a false entry for the purpose of aiding in having the false claim paid, and [3] entering into a combination or conspiracy to obtain the allowance of any false claim.

The Supreme Court has addressed the issue of multiple forfeitures only once, and on that occasion not definitively. In United States ex rel. Marcus v. Hess, supra, the defendants’ chief attacks on the forfeiture judgment were that it violated the double jeopardy clause of the fifth amendment and that the qui tam provisions of R.S. § 3493 since repealed were unlawful. The informer, Marcus, and the Attorney General were the petitioners for certiorari. After concluding that the judgment of this court, which had reversed the district court judgment imposing forfeitures, should be reversed, Justice Black wrote:

“Section 3490 requires that the $2,000 forfeit be paid for doing ‘any’ of the acts prohibited by § 5438. Before the District Court, petitioner contended that this sum should be exacted for every form submitted by respondents in the course of their enterprise, while respondents argued that there should be merely one $2,000 sum collected for all the acts done. The District Court concluded that the lump sum in damages should be assessed for each separate P.W.A. project. Petitioner does not object to this decision and we conclude that under the circumstances of this case each project can properly be counted separately. The incidence of the fraud on each additional project is as clearly individualized as is the theft of mail from separate bags in a post office [citations omitted] . ...” 317 U.S. at 552, 63 S.Ct. at 388.

The context of the quoted language was a case in which the fraud was a collusive bid rigging conspiracy in the Pittsburgh area which operated with respect to 56 contracts with local government units financed by the Federal Public Works Administration. The district court had assessed fifty-six $2,000 penalties, which Justice Black refers to as “the lump sum” in damages. 317 U.S. at 552, 63 S.Ct. 379. The informer had contended in the district court that each false affidavit or certificate that was submitted to the P.W.A. administrator would be grounds for a separate $2,000 forfeiture. The defendants had contended that since there was a single ongoing conspiracy, only one forfeiture was permitted. The district court had concluded that a bid rigging conspiracy prohibited by the third clause of § 5438 had affected 56 government-financed contracts. See United States ex rel. Marcus v. Hess, 41 F.Supp. 197, 216 (W.D.Pa.1941). Since the petitioners for certiorari had before reaching the Supreme Court abandoned the contention that there could be a separate forfeiture for each false entry (the second clause of § 5438) the Court’s holding deals only with the propriety of assessing a forfeiture under the conspiracy clause for each contract affected by a bid rigging conspiracy. Justice Black might have found a violation or violations of the third (conspiracy) clause of § 5438. Instead, possibly with the intention of narrowing the construction of § 3490, he said that the first clause governed. 317 U.S. at 540, n. 2, 63 S.Ct. 379.

Three years after the Hess decision an issue -of the appropriate number of forfeitures was before this court in United States v. Rohleder, 157 F.2d 126 (3d Cir. 1946). In that case Cramp Shipbuilding Company had a contract with the Navy to erect emergency plant facilities. Cramp had authority to subcontract subject to approval in advance by the Navy’s Supervisor of Shipbuilding of all plans, prices, subcontractors and subcontracts. As work was completed Cramp would present a Final Cost Certificate and would be reimbursed monthly. Cramp entered into sixteen subcontracts with Rohleder on a cost-plus-fixed-fee basis. The Navy required that for approval of purchase of materials three or more vendors bids and prices be submitted. In ninety instances Rohleder submitted two fictitious bids along with that of the actual single vendor. The district court assessed sixteen penalties. On its cross appeal the government contended that there should have been ninety forfeitures. This court, purporting to follow United States ex rel. Marcus v. Hess, supra, rejected the government’s contention, writing:

“The government argues that in Hess the fraud was in the procurement of the contracts whereas in the situation confronting us the fraud arises from the means taken to obtain the approval of the Supervisor of Shipbuilding. That difference does exist but is not enough to avoid the impact of the Hess opinion. There the Supreme Court said, 317 U.S. at page 552, 63 S.Ct. at page 388, 87 L.Ed. 443: ‘The incidence of fraud on each additional project is as clearly individualized as is the theft of mail from separate bags in a post office.’ Nor do we think that it can be fairly substantiated that the District Court in limiting the forfeiture to the sixteen contracts overlooked the second and third clauses of Section 5438. The fraud was committed with respect to the contracts. The purchase orders were part of those contracts and not definite projects in themselves. They are analogous to the great number of spurious forms in the Hess case which were absorbed into their respective projects. The grouping by the Trial Judge of the ninety purchase orders under their respective contracts generally corresponds to the distinctions made in United States ex rel. Marcus v. Hess, supra. It is reasonable and has a sound basis in the record.” 157 F.2d at 131.

United takes comfort from the Hess and Rohleder cases, suggesting that Hess would permit only one forfeiture since there was only one government project, and that Rohleder would permit only one forfeiture since there was only one purchase order from Model to United.

The district court did not choose to follow United’s interpretation of Hess and Rohleder. Instead it followed United States v. Ueber, 299 F.2d 310 (6th Cir. 1362). In that case a subcontractor submitted 442 false invoices to the main subcontractor who in turn submitted 54 invoices to the United States. The court approved the imposition of 54 forfeitures based on those 54 invoices. Arguably the TJeber court was quite correct in determining that 54 forfeitures were permitted. The violation was that set forth in the first clause of § 5438. The defendant subcontractor had knowingly caused -to be made and presented for payment by the contractor a false claim. Ueber is not inconsistent with Hess for the holding in Hess did not depend upon the first clause of § 5438, but rather on the third clause. It must be noted that each of these clauses defines a separate crime involving different elements.

Ueber, and the district court decision in this case, however, is inconsistent with the language quoted above from Rohleder. Rohleder was not a conspiracy. It was, like the Ueber case, an instance of a subcontractor causing a contractor to submit a false claim. However, this court in Rohleder perceived in Hess an intention to give § 3490 a narrow and reasonable construction. If literally applied the section would permit a separate $2000 forfeiture under clause [1] of § 5438 for each invoice submitted by the main contractor (in this case 35); a separate $2000 forfeiture under clause [2] of § 5438 for each false entry (in this case 439); and a separate forfeiture under clause [3] of § .5438 for each conspiracy (in this case at least one). We may well question whether if so construed the statute would not compel the conclusion that it was penal rather than civil. That, of course, was the chief ground for appeal asserted in the Hess case, and probably was the reason for Justice Black’s narrowing construction. This being so we continue to adhere to the interpretation of § 3490 announced in Rohleder. That interpretation focuses upon conduct of the defendants rather than upon the fortuity of the number of invoices submitted by the main contractor. Consistent with Rohleder there should, under the first clause of § 5438, have been a single forfeiture since the defendants’ fraud affected the performance of a single purchase order from Model to United.

We note that there is a possible overlap between the offenses defined in the first and second clauses of § 5438 in that the means taken by a subcontractor to cause a contractor to make a false claim may, as was the case here, involve making false entries. But just as in United States ex rel. Marcus v. Hess, supra, the petitioners before the Supreme Court abandoned any contention for forfeitures in excess of 56, the government here has not pressed for more than 35 forfeitures. Thus we need not in this case consider whether on a single transaction a separate § 3490 forfeiture may be imposed by virtue of a violation of the first and the second clauses of § 5438.

We recognize that by our continued adherence to Rohleder we have continued a conflict between our interpretation of § 3490 and that of the Sixth Circuit in Ueber. Perhaps the Supreme Court will shed more light than we have been able to. Any limiting interpretation of § 3490 involves arbitrary line drawing. This statute, we may add, cries out for congressional attention.

The judgment will be affirmed with respect to double damages in the amount of $79.40 and with respect to the award of a single forfeiture in the amount of $2,000. The judgment awarding forfeitures in excess of $2,000 will be vacated.

      . United States v. Bornstein, 361 F.Supp. 869 (D.N.J.1973).

      . “Every person who . . . having charge, possession, custody, or control of any money or other public property used or to be used in the military or naval service, who, with intent to defraud the United States or willfully to conceal such money or other property, delivers or causes to be delivered, to any other person having authority to receive the same, any amount of such money or other property less than that for which he received a certificate or took a receipt, and every person authorized to make or deliver any certificate, voucher, receipt, or other paper certifying the receipt of arms, ammunition, provisions, clothing, or other property so used or to be used, who makes or delivers the same to any other person without a full knowledge of the truth of the facts stated therein, and with intent to defraud the United States, and every person who knowingly purchases or receives in pledge for any obligation or indebtedness from any soldier, officer, sailor, or other person called into or employed in the military or naval service any arms, equipments, ammunition, clothes, military stores, or other public property such soldier, sailor, officer, or other person not having the lawful right to pledge or sell the same, every person so offending in any of the matters set forth in this section shall be imprisoned at hard labor . . . .” R.S. § 5438.

      . Act of Dec. 23, 1943, ch. 377, § 2, 57 Stat. 609.

      . ¿fee also United States v. National Wholesalers, 236 F.2d 944 (9th Cir. 1956) (8 vouchers, 8 forfeitures), cert. denied, 353 U.S. 930, 77 S.Ct. 719, 1 L.Ed.2d 724 (1957) ; Faulk v. United States, 198 F.2d 169 (5th Cir. 1952) (5 vouchers, 5 forfeitures) .


author: MATTHES, Senior Circuit Judge.

text:
    Willie CRENSHAW, Appellant, v. Charles L. WOLFF, Jr., Warden, Appellee.
    No. 74-1260.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 12, 1974.
    Decided Oct. 23, 1974.
    Certiorari Denied March 3, 1975.
    See 95 S.Ct. 1361.
    Dennis D. Burchard, Lincoln, Neb., for appellant.
    Harold S. Salter, Deputy Atty. Gen., Claims Div., Lincoln, Neb., for appellee.
    Before MATTHES, Senior Circuit Judge, HEANEY and STEPHENSON, Circuit Judges.
   MATTHES, Senior Circuit Judge.

Willie Crenshaw, a prisoner serving a ten to fifteen year sentence at the Nebraska penal complex for malicious shooting or shooting at a person with intent to kill, in violation of Neb.Rev. Stat. § 28-410 (1969 Cum.Supp.), filed this habeas corpus action pursuant to 28 U.S.C. § 2254 in federal district court in Nebraska. In his habeas petition, petitioner alleged that he was denied certain constitutional rights and received ineffective assistance of counsel during the state criminal trial which resulted in his conviction on the shooting charge. The district court, Judge Urbom, upon consideration of the evidence adduced in a previous state post-conviction hearing, filed an extensive memorandum opinion finding that petitioner had exhausted all available state post-conviction remedies and ruling that the contentions of the petitioner’s 2254 motion were without merit. Petitioner now appeals the denial of relief by the district court.

A short history of this case is necessary before considering the issues on appeal.

On November 24, 1969, petitioner was charged in two counts of malicious shooting with intent to kill in an incident involving two different victims, and eventually was represented by appointed counsel. After petitioner entered pleas of not guilty to both counts, he was tried in February, 1970, and was acquitted on one count and convicted on the other. Two months after the trial, petitioner was sent to a state mental health institute, where he was eventually diagnosed as having mild mental retardation, with psychosis.

In March, 1971, petitioner filed a motion under the Nebraska Post-Conviction Act, contending, inter alia, that he had been denied due process during his trial because the court had failed to institute, on its own motion, proceedings to determine his mental competency to stand trial and that he had been denied the right to appeal. An evidentiary hearing was held, after which the court denied the post-conviction motion on July 17, 1972. This decision was upheld by the Nebraska Supreme Court. State v. Crenshaw, 189 Neb. 780, 205 N.W.2d 517 (1973).

On May 7, 1973, petitioner filed this 2254 action in the United States District Court for the District of Nebraska. Petitioner raised the same two issues, i. e., incompetency and denial of right to appeal, resolved adversely to him in the state courts and further asserted that he was not afforded effective assistance of counsel at the time of his trial. As noted above, the district court rejected all three asserted grounds for relief. We shall consider each asserted point of error seriatim.

Petitioner first urges that the district court erred in holding that he was not denied due process by the failure of the trial court to hold a hearing to establish his competency to stand trial. In most trials, of course, no serious question regarding an accused’s competency to stand trial is present, and neither the petitioner nor his attorney requested that the trial court in this case make an inquiry into petitioner’s competency. But the Supreme Court in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed. 2d 815 (1966), ruled that a trial court has a constitutional duty to institute, sua sponte, a competency hearing if there is substantial evidence before the court indicating that the accused may be mentally incompetent. The question thus becomes whether the district court erred in finding that there was not substantial evidence before the trial court suggesting petitioner’s incompetency.

This court in Jones v. Swenson, 469 F.2d 535 (8th Cir. 1972), cert. denied, 412 U.S. 929, 93 S.Ct. 2756, 37 L.Ed.2d 156 (1973), held that Pate v. Robinson requires a competency hearing “where there was uncontradicted evidence of pronounced irrational behavior on the part of a state defendant and where that evidence ‘raises a “bona fide doubt” as to a defendant’s competence to stand trial’.” 469 F.2d at 538. See also Rand v. Swenson, 501 F.2d 394 (8th Cir. 1974); Moore v. United States, 464 F.2d 663, 666 (9th Cir. 1972) (“Evidence is ‘substantial’ if it raises a reasonable doubt about defendant’s competency to stand trial.”).

After reviewing the record, we cannot say that the district court erred in ruling that there was not substantial evidence of petitioner’s alleged incompetency before the Nebraska criminal trial judge. There was no suggestion by anyone at trial that petitioner was incompetent or suffering from mental illness. The transcript of petitioner’s testimony at the trial reveals that he was inarticulate and possibly dull-witted, but he was able to fully comprehend and rationally respond to the questioning of the attorneys. Furthermore, petitioner was able to communicate with his appointed counsel concerning his defense and was able to supply the lawyer with the names of potential witnesses.

Petitioner now urges that confusion he evinced at his sentencing, at which he asked the sentencing judge to release him since he had been found innocent of one count, indicates that he did not understand the nature of the charges against him, specifically, that he was charged with two separate offenses. Petitioner argues that the trial court should have deduced from this confusion that petitioner was possibly incompetent and that a competency hearing was necessary. Our reading of the sentencing transcript, however, leads us to conclude that the petitioner fully understood that he was charged with two separate offenses, but was mystified as to why the jury would convict him of shooting one person and acquit him of shooting another, even though both shootings occurred in the same incident. In any event we agree with the district court that the statements of the petitioner at sentencing are not substantial evidence of mental incompetency.

Secondly, petitioner contends that the district court erred in concluding that he was not denied the right to appeal. This claim apparently is premised upon several opinions holding that a defendant has been denied his right to appeal if he has not been fully informed by the court or his attorney of his right to appeal or by some other means has ' acquired knowledge of that right. See, e. g., Bartley v. Commonwealth, 462 F.2d 610 (6th Cir.), cert. denied, 409 U.S. 1062, 93 S.Ct. 570, 34 L.Ed.2d 515 (1972); United States ex rel. Smith v. McMann, 417 F.2d 648, 654-655 (2d Cir. 1969), cert. denied, 397 U.S. 925, 90 S.Ct. 929, 25 L.Ed.2d 105 (1970).

The sentencing proceedings in the state court reveal that the trial judge informed the petitioner of his right to appeal. Furthermore, petitioner admitted in the post-conviction hearing that he knew at the time of his sentencing that he had a right to appeal the conviction. Judge Urbom carefully considered the evidence relating to this claim on the record and concluded:

This evidence does not persuade the court that the petitioner was not advised of his right to appeal, particularly since the record reveals that the trial court informed the petitioner of his right to appeal and noted that the petitioner had appealed another felony-conviction in the past.

We are not persuaded that Judge Ur-bom’s evaluation of the state proceedings is vulnerable to a successful attack.

Finally, petitioner pro se asserts that the district court erred in ruling that the representation afforded petitioner by his trial attorney cannot be considered ineffective assistance of counsel. In the district court, petitioner stressed that the attorney did not raise at trial the issue of petitioner’s possible ineompetency, that the attorney did not undertake extensive pre-trial investigation, and that counsel assertedly did not advise petitioner of the right to appeal.

The district court, in denying petitioner relief on this ground, found that there was no evidence that the trial attorney knew or should have known about petitioner’s possible incompetency, and therefore should not be charged with neglect in failing to raise the matter. The court further found that the attorney’s decision not to undertake an independent investigation was made only after a consultation with the petitioner and after a specific determination that the outcome of the case turned on eyewitness testimony, whereupon the lawyer consulted with an attorney who had previously worked on the case and interviewed witnesses before trial. The district court also determined that the assertion that trial counsel had not advised petitioner of his right to appeal was not established on the record. These factual determinations of the district court are supported by substantial evidence and are not clearly erroneous.

The standard traditionally employed by this court to determine if counsel rendered ineffective assistance has been whether a “farce” or “mockery of justice” had occurred. More recently, several jurisdictions have worded the test for determining whether assistance of an attorney was constitutionally adequate in terms of whether the accused received “reasonably competent assistance of counsel.” See generally McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974). Although this court in McQueen declined to rule whether the “mockery of justice” standard should be abandoned in favor of the standard more recently established in other jurisdictions, we find that the conduct of the assistant public defender in this case was fully adequate under either test.

We find no rational basis for interfering with the district court’s denial of the petition for habeas corpus. Consequently, we affirm.

      . The standard for determining whether an accused has the requisite mental competency to stand trial has been established by the Supreme Court in the following terms :
      [W]hether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.
      Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

      . If the possibility that the accused is mentally incompetent to stand trial is brought to the attention of a Nebraska state trial court, Neb. Rev.Stat. § 29^-1823 (Cum.Supp.1969) empowers the trial judge to order a medical or psychiatric examination of the accused and to hold a competency hearing. In Nebraska the decision whether a competency hearing should be held is within the “sound discretion” of the trial court. State v. Boston, 187 Neb. 388, 191 N.W.2d 452 (1971). See also State v. Anderson, 186 Neb. 435, 183 N.W.2d 766 (1971) ; Comment, Competency to Stand Trial in Nebraska, 52 Neb.L.Rev. 69 (1972).

      . See Cardarella v. United States, 375 F.2d 222, 230 (8th Cir.), cert. denied, 389 U.S. 882, 88 S.Ct. 129, 19 L.Fd.2d 176 (1967) :
      [A] charge of inadequate representation can prevail “only if it can be said that what was or was not done by defendant’s attorney for his client made the proceedings a farce or mockery of justice, shocking to the conscience of the Court.”

        See also Brown v. Swenson, 487 F.2d 1236, 1240 (8th Cir. 1973), cert. denied, 416 U.S. 944, 94 S.Ct. 1952, 40 L.Ed.2d 296 (1974) ; Scalf v. Bennett, 408 F.2d 325, 327-328 (8th Cir.), cert. denied, 396 U.S. 887, 90 S.Ct. 175, 24 L.Ed.2d 161 (1969).


author: WISDOM, Circuit Judge:

text:
    Ellis B. HALL, Charles R. Hall and Eunice E. Hall, Plaintiffs-Appellants, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Defendant-Appellee.
    No. 73-3106.
    United States Court of Appeals, Fifth Circuit.
    Nov. 18, 1974.

      John S. Walker, Center, Tex., for plaintiffs-appellants.
    Larry W. Starr, Longview, Tex., for defendant-appellee.

      Before WISDOM and CLARK, Circuit Judges, GROOMS, District Judge.
   WISDOM, Circuit Judge:

This wrongful death action, governed by Texas tort law under Erie, is unusual in that the instrumentality allegedly causing the wrongful death did not come into physical contact with the decedent.' Ellis B. Hall, husband of Mrs. Dovie Hall, and their two children, Charles and Eunice Hall sued the Atchison, Topeka & Santa Fe Railway Co., for the wrongful death of Mrs. Hall. Vernon’s Ann. Tex.Code, §§ 4675 and 5525. The theory of the plaintiffs’ case, simply stated, is that the defendant railroad negligently blocked the decedent’s access to the hospital to which she was being taken by her husband, that the decedent was suffering the onset of an acute asthma attack at the time, and that the delay occasioned by the blocked crossing aggravated the attack to such an extent that the decedent lapsed into a coma shortly after she did reach the hospital and died later in the day. At the close of the plaintiffs’ ease, the defendant moved for a directed verdict on three grounds relevant to this appeal: first, that there was no evidence upon which a finding of negligence on the part of the railroad could be based; second, that the evidence failed to demonstrate any causal connection between the defendant’s conduct and the injuries and death complained of; and, third, that, even if cause in fact had been demonstrated, the injuries and death were not foreseeable, and therefore, as a matter of law, the defendant’s conduct could not be their proximate cause. The trial court granted the directed verdict. We reverse and remand for a new trial.

I.

In reviewing the evidence to determine the propriety of the district court’s granting a directed verdict at the close of the plaintiff’s evidence, this Court must observe the following standard:

The evidence must be viewed in the light most favorable to the plaintiff, giving the plaintiff the benefit of every inference favorable to him which may be fairly drawn. It is not for the court to weigh the conflicting evidence or to judge the credibility of witnesses. Whenever the evidence is such that fair-minded men may draw different inferences therefrom, and reasonably disagree as to what the verdict should be, the matter is one for the jury.

American Fidelity & Casualty Co. v. Drexler, 5 Cir. 1955, 220 F.2d 930, 932-933. See also Isaacs v. American Petro-fina, 5 Cir. 1966, 368 F.2d 193.

Mrs. Dovie Hall had suffered from asthma for a number of years preceding her death. Dr. Vernon Polk, her personal physician from 1956 until her death in 1970, testified that in the months preceding her death her condition had deteriorated. He stated that in the year preceding her death she had a number of asthma attacks that had necessitated emergency treatment at the hospital in Center, Texas. On each occasion he had successfully controlled the attacks by the administration of drugs such as adrenalin or steroid compounds that dilate the bronchial passages and help restore the normal flow of air to the lungs. In some instances, he had administered a sedative to relieve the fear and anxiety typically accompanying a serious asthmatic attack. He gave such treatments on September 8, September 25, and on September 30, 1970, the day preceding her death. On September 29 or 30, at Dr. Polk’s suggestion, Mr. Hall had driven the decedent to a major hospital in Galveston for further diagnosis, but she was not admitted. Dr. Polk testified presumably because those who examined her in Galveston concluded that every appropriate. measure was being taken in Center by him as her personal physician. An automobile trip of this length might have aggravated her condition. Dr. Polk stated that, in the days before her death, he had no indication that she would die. On the contrary, he had always been able to control her attacks and if he had had any indication that his mode of treatment would not be sufficient to control the symptoms, he would have ordered her immediate hospitalization for more intensive supervision. In response to a hypothetical question regarding the effect of a twenty-five to forty minute delay in obtaining medical attention upon a patient suffering the onset of a- severe asthmatic attack, and whether such a delay was a “major contributing cause” of her death, Dr. Polk answered in part:

To be perfectly honest in answering this question, of course you cannot answer it. I don’t think you can give an absolute answer to this question. From a legal standpoint, or whatever you are meaning to consider this legal thing here because as I have stated before, any delay in treating an asthmatic condition — the quicker you can get some definite. treatment started, the more likely you will be able to relieve the symptoms, is that an answer?
Well, I think the delay would certainly contribute in some measure to the condition, but whether it was a major factor in the woman’s demise or not, I cannot — I mean, I am not going to — I don’t know whether I can say it was a major or contributing factor in her demise; .
I think it would be a contributing factor, yes.

Dr. Polk further testified that Mrs. Hall checked in to the emergency room about 9 a. m. on October 1, and that, despite sedation and the other treatment outlined earlier in his testimony, she lapsed into a coma and died about 12 hours later. Administration of the drugs he gave her effected some improvement in her symptoms, but her over-all condition did not improve after she entered the hospital that morning.

Eunice Hall, her daughter, testified that when she left their home for work, some time between 6:30 and 7 a. m. that day, her mother appeared to be sleeping normally. Mr. Hall testified that the attack began between 7:30 and 7:45 and he and his wife set out for the hospital at once. He stated that their home was on Cotton Ford Road, and that usually it was a ten to twelve minute drive from their home to the hospital. That morning, however, a freight train blocked the Atchison, Topeka and Santa Fe crossing on Cotton Ford Road near the Bryce Lumber Mill. To drive from the blocked crossing on to the hospital would take five to six minutes. The only other route he was aware of would require a relatively lengthy detour and would take at least twenty-five minutes. There was no agent or employee of the defendant at the crossing or anywhere else in the vicinity, so far as he could tell. There was, therefore, no one to whom he could communicate the necessity for quick action, and no one to advise him what had caused the train to block the crossing and how long the crossing would remain blocked. The derailed cars were not visible to him from the crossing. As the minutes passed, Mrs. Hall’s attack became more severe. Worse, she became terrified at the possibility that they would not reach the emergency room in time. Mr. Hall started to leave the crossing to summon help, but she begged him to stay with her. Her neck became swollen and the circulation in her extremities diminished. Finally the train was broken and the crossing cleared. The delay in reaching the emergency room was thirty to forty minutes.

There was also evidence to show that the derailment occurred some time before 8 a. m. that day, and that the Cotton Ford crossing was blocked at least one half hour. There was some testimony regarding the alleged poor state of repair of the track in the general area of the derailment. The sheriff of Shelby County testified that his office was not notified of the derailment and did not dispatch personnel to the scene to re-route traffic or otherwise alleviate the confusion that might be generated.

We conclude that this testimony made out a case for the jury.

II.

The defendant’s first ground for a directed verdict is that there is no evidence upon which a finding of negligence could be based. On the contrary, we find two grounds that would support a finding of negligence.

The record shows that the train blocked the Cotton Ford Road crossing for well over five minutes, in violation of a Texas penal statute, Vernon’s Ann. Stat., art. 6701d-5. The law of Texas is settled that a violation of this statute constitutes negligence per se. See Louisiana & Arkansas R. Co. v. Hughes, 5 Cir. 1967, 374 F.2d 106, and the Texas cases collected there.

The defendant argues that the blocking was accidental rather than willful, as the statute requires. Whatever may be said of the cause of the derailment, there is nothing in this .record to excuse the railroad’s lengthy delay in breaking the train and making the crossing passable once the derailment had occurred. A jury finding of negligence therefore would be reasonable. See generally Morris, The Role of Criminal Statutes in Negligence Actions, 49 Colum.L.Rev. 21 (1949). Such a finding, however, affects only one element of the plaintiff’s case in a negligence action; causation and damages must still be demonstrated.

The second ground that would support a finding of negligence on the part of the defendant is the doctrine of res ipsa loquitur. This doctrine recognizes that an inference of negligence may be drawn against a defendant when an injury is inflicted by an instrumentality under the control and management of the defendant, and the nature of the incident induces a reasonable belief that it would not have happened absent negligence. Texas courts have applied this rule of evidence to derailments occurring on railroads. See, e. g., Washington v. Missouri, K. & T. R. Co., 1897, 90 Tex. 314, 38 S.W. 764. The chief justification for the rule is that the means of proof of negligence vel non are more readily available to the party against whom the inference is permitted than the party invoking the rule. Here, the plaintiffs laid a predicate for application of res ipsa loquitur by introducing evidence to demonstrate the generally poor condition of the track in the vicinity of the derailment. They also introduced evidence tending to show that freight cars had been observed “rocking” as they passed over the segment of track in question, that insufficient rock had been maintained in the trackbed, making it easier for a wheel to slip off, and that certain discarded railroad ties found in the vicinity of the derailment were rotten or showed other signs of great age. In these circumstances, the plaintiffs had offered enough evidence to raise an inference of negligence on the part of the railroad under the doctrine of res ipsa loquitur. It was then up to the railroad to overcome that inference, if it could, in presenting its case to the jury.

On either ground, we think the plaintiffs adduced sufficient evidence of negligence to overcome a motion for a directed verdict on the negligence issue at the close of their evidence.

III.

The defendant’s second ground in its motion for a directed verdict was that the plaintiffs failed to demonstrate any causal connection between the defendant’s conduct and the injuries and death of Mrs. Hall. To be actionable under Texas law, negligence must be a cause in fact of the injury complained of, but it need not be the only cause. See, e. g., Montgomery Ward & Co. v. Newman, Tex.Civ.App.1944, 181 S.W.2d 613. Indeed, some courts have stated the Texas test for proximate cause so that it contains two main elements: cause in fact, and foreseeability. See, e. g., Texas & P. R. Co. v. McCleery, 1967, 418 S.W.2d 494, 496; Leckbee v. Continental Airlines, Inc., 5 Cir. 1969, 410 F.2d 1191. In McCleery, the Texas Supreme Court said:

Negligent conduct is, in law, a cause in fact of harm to another only if it is a substantial factor in bringing about the harm. Hopson v. Gulf Oil Corp., 150. Tex. 1, 237 S.W.2d 352, 355 (1951). Other than in situations in which the conduct of more than one person contributes to the harm, negligent conduct cannot be regarded as a substantial factor in bringing about the harm if the harm would have been sustained even if the actor had not been negligent. Hopson, supra; Radley v. Knepfly, 104 Tex. 130, 135 S.W. 111 (1911); Restatement (Second) of Torts § 432 (1965); 2 Harper & James, The Law of Torts § 20.2 (1956); Prosser, Law of Torts § 41 (3d ed. 1964).

418 S.W.2d at 497. See generally Green, Proximate Cause in Texas, 28 Tex.L.Rev. 471, 621, 755 (1949, 1950).

In this case, reasonable men might differ whether the twenty-five to forty minute delay in reaching the emergency room' near the onset of a severe asthma attack, in light of all the other circumstances, was a substantial factor in causing Mrs. Hall’s lapse into a coma and subsequent death. The question of cause in fact should therefore have been submitted to the jury.

IY.

The more difficult inquiry in this case is, of course, the-one regarding foreseeability. Few areas of tort law are as beset with the potential for confusion as is that of foreseeability. The test in Texas, as we read the cases, is that an injury is foreseeable if, in light of all the circumstances, a reasonably prudent man would have anticipated that the injury would be a consequence of the act or omission in question. See, e. g., Clark v. Waggoner, Tex.Sup.Ct. 1970, 452 S.W.2d 437; Galveston, H. & S. A. R. Co. v. Bell, 1919, 110 Tex. 104, 216 S.W. 390. The precise nature of the injury and the manner of its infliction is immaterial to liability, so long as the injury is of a type that, in the circumstances, might reasonably have been expected to occur. See, e. g., Otis Elevator Co. v. Wood, Tex.Sup.Ct.1968, 436 S.W.2d 324; Biggers v. Continental Bus System, 1957, 157 Tex. 351, 303 S.W.2d 359. Ordinarily, the question of foreseeability is one for the jury.

The defendant has urged that the injury sustained by Mrs. Hall in this case was not foreseeable as a matter of law, and has relied heavily on Kaufman v. Miller, Tex.1967, 414 S.W.2d 164. In Kaufman, the Texas Supreme Court held that it was not foreseeable, as a matter of law, that the plaintiff, the driver of a vehicle which was struck by the defendant’s vehicle, without substantial damage to either vehicle or any personal injury, would later suffer a “conversion reaction neurosis” to which he was “peculiarly susceptible” as the result of an earlier accident. Kaufman denied recovery for the particular sort of psychological injury allegedly sustained as a result of the accident, but the Texas Supreme Court carefully limited its holding to the facts of the case, and declined to fashion a broad rule denying liability in all circumstances involving the infliction of psychological injury because it recognized that “this field of law is in a developing process, as is the field of psychiatry”. Id. at 171.

In relying upon the narrow holding of Kaufman, the defendant obscures the distinction between that case and the one before us. Kaufman should be grouped with those cases denying recovery for intentionally or negligently inflicted emotional distress or other psychological injury not springing from some physical injury also inflicted in the same tortious conduct. In such eases, the courts have traditionally been reluctant to impose liability. See, e. g., Pros-ser, Law of Torts § 43, at 269-70 (4th ed. 1971); ALI Restatement (Second) of Torts §§ 313, 436A (1965).

The present case, however, involves injuries allegedly sustained because the defendant negligently blocked the decedent’s access to the emergency room of a hospital, and hence must be examined in light of the broad principles Texas has evolved regarding foreseeability, rather than the specific rules of the psychological injury cases. We have summarized the Texas position earlier. The Second Restatement of Torts lays down a roughly parallel rule, more fully articulated and integrated, which has been cited with approval by Texas courts:

§ 435.
Foreseeability of Harm or Manner of Its Occurrence
(1) If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.
(2) The actor’s conduct may be held not to be a legal cause of harm to
another where after the event an looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.

Restatement (Second) of Torts § 435 (1965).

We stress that the question confronting us is not whether the injuries sustained by Mrs. Hall were in fact foreseeable under Texas law, but whether the federal district court was correct in concluding as a matter of law that they were not foreseeable. There are, to be sure, no Texas cases in point. There are, however, cases in other jurisdictions that have allowed recovery for personal injuries sustained as a result of the delay occasioned by a railroad’s negligent obstruction of a crossing on a public street, road, or highway. See, e. g., Southern R. Co. v. Jarvis, 1914, 11 Ala.App. 635, 66 So. 936 (recovery denied because plaintiff failed to demonstrate negligent obstruction in the circumstances, and to show actual injury sustained) ; Shields v. Louisville & N. R. Co., 1895, 97 Ky. 103, 29 S.W. 978 (dictum) ; Anderson v. Alabama & V. R. Co., 1903, 81 Miss. 587, 33 So. 840 (injury to health); Illinois C. R. Co. v. Engle, 1912, 102 Miss. 878, 60 So. 1 (damages proper for obstruction of road traveled by plaintiff to consult her physician regarding her illness); Terry v. New Orleans G. N. R. Co., 1913, 103 Miss. 679, 60 So. 729 (recovery allowed for injuries sustained because plaintiff’s physician was delayed on his way to attend at childbirth); Parker v. Southern R. Co., 1916, 111 Miss. 669, 71 So. 912.

Thus, if we borrow the formulation of the Second Restatement of Torts, we must recognize that a number of state courts have not found it “highly extraordinary that [negligent obstruction by a railroad of a public way] should have brought about the harm.” Or, if we use the more familiar Texas standard, we must frame the question as follows : In the present case, can it be said, as a matter of law, that a reasonably prudent person could not have foreseen that, by blocking one of the major access roads to Center, Texas, for a substantial length of time without making any effort to re-route traffic, the condition of a person seriously in need of immediate medical attention in the city who was delayed by the obstruction might be materially aggravated? We hold that it can not. This inquiry, like that regarding cause in fact, is one that must properly be left to the jury.

The judgment of the district court is therefore reversed, and the case is remanded for further proceedings consistent with the views expressed here.

Reversed and remanded.

      . Counsel for the plaintiffs' put the following hypothetical question to Dr. Polk, Mrs. Hall’s physician at the time of her death:
      Assume, Doctor, that Mrs. Dovie Hall, a known asthmatic patient of yours, on the morning of October 1st, 1970, at approximately 8:00 A. M. upon experiencing significant difficulty in breathing, due to an asthmatic attack, started for the hospital, taking approximately ten minutes to get ready and get to the car driven by her husband, and assume further that in approximately one and a half or two minutes they reached a blocked railroad crossing at Cotton Ford on their way to town, and they waited from twenty-five to forty minutes before it cleared, and after the expiration of fifteen or twenty minutes while stopped at the crossing her condition rapidly grew worse to the point that she was pulling strongly for breath, and was in distress with the obvious inability to get her breath, with the condition growing worse all the time, and assume further that when the crossing was cleared, they immediately went straight to the emergency room of the Memorial Hospital, taking approximately two to three minutes, whereupon she received your care and treatment, and later entered a coma and died.
      Now, Doctor, based on these assumed facts, do you have an opinion as to whether or not the twenty-five to forty minutes’ delay in reaching the hospital, in reasonable medical probability was a major contributing factor to her death?


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Juan CANTU, Michael Neil Emigh, and David Edward Michaud, Defendants-Appellants.
    No. 73-2963.
    United States Court of Appeals, Fifth Circuit.
    Nov. 18, 1974.

      Morris L. Pepper, Houston, Tex., for defendants-appellants.
    Anthony J. P. Farris, U. S. Atty., Mary L. Sinderson, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before WISDOM and GOLDBERG, Circuit Judges, and LYNNE, District Judge.
   WISDOM, Circuit Judge:

The defendants-appellants, Juan Cantu, Michael Neil Emigh, and David Edward Michaud, appeal from their convictions of possessing with intent to distribute marijuana, in violation of 21 U. S.C. § 841(a)(1). All three contend that the search during which the marijuana was seized violated their rights under the Fourth Amendment. We conclude, however, that the search was valid under the pre-Almeida-Sanchez “border search” doctrine. Appellants Emigh and Michaud contend that the evidence was insufficient to support a conclusion that they were ever in possession of the marijuana, and that the district court erred in giving one of his instructions and in refusing to give another requested by the defendants.

We affirm Cantu’s conviction and reverse the convictions of Michaud and Emigh.

I.

On the morning of December 22, 1972, the Border Patrol was operating a mobile Border Patrol Traffic Checkpoint on Highway 281, seventy to seventy-five miles north of the Mexican border and two miles south of Falfurrias, Texas, one of the three locations used alternately to reduce the risk that illegally entering aliens will skirt the checkpoint. There was a stop sign there to halt all northbound motorists. At three that morning, the defendants stopped their car at the checkpoint. When the window of the car was rolled down, a Border Patrol agent detected what he recognized as a “strong” marijuana odor. When the agent shined his flashlight into the back seat area of the car, he saw marijuana debris on the floor and saw that the back seat was out of place, about four inches above the floorboard. In the crack between seat and floorboard the agent saw several white packages. The agent asked the driver to pull to the side of the road. The driver complied, and the occupants got out of the car. The agent called out a partner who informed the three defendants of their Miranda rights.

The two agents proceeded to search the car. One lifted up the back seat and found eight bricks of marijuana wrapped in white freezer paper. The other asked the driver to open the trunk, and in the trunk found three suitcases. The agent found three bricks of marijuana, and a plastic bag containing some loose marijuana. It was later . determined that thirty pounds of marijuana had been seized. The border patrol officials called customs agents.

The customs agents came and took custody of the marijuana and the defendants. The customs officials gave the defendants another warning of their rights and took the defendants to the Falfurrias station, where they asked the defendants to give personal history statements. The defendants Emigh and Michaud answered all questions on the personal history statement, but refused to make any further statement concerning the marijuana found in the trunk. Defendant Cantu told his interrogator that he was driving a rental car from Las Vegas to Austin, and intended to return in another rental car from Austin to Las Vegas, and that in the course of this trip he had purchased the marijuana found in the car for $1400 in La Villa, Texas.

II.

The appellants’ argument on the search question is devoted entirely to an argument that this search was not valid under the “border search” doctrine. We conclude, to the contrary, that the stop and search were constitutionally permissible.

The agents were acting within the scope of their statutory authority. 8 U.S.C. § 1357; 8 C.F.R. § 287.1. Furthermore, they operated the checkpoint at a location reasonably situated to minimize the risk that it would be evaded. Seventy miles is not too great a distance from the border by Texas standards; searches at such distances have been approved by this Court. See, e. g., United States v. Merla, 5 Cir. 1974, 493 F.2d 910; United States v. Miller, 5 Cir. 1974, 492 F.2d 37; United States v. Thompson, 5 Cir. 1973, 475 F.2d 1359. Nearer the border, intersecting roads would have made the checkpoint ineffective.

Border Patrol agents operated the checkpoint as the functional equivalent of a permanent station, although the location was varied slightly from time to time tQ make evasion more difficult. A stop sign was erected to halt all northbound traffic, and agents ran every passing vehicle through a routine immigration check. They were on duty between midnight and eight in the morning, hours when the roads are less trav-elled and the risk of intrusion in the lives of innocent citizens is minimized, and the challenged search took place at three in the morning. We conclude that the stop was lawful on the authority of United States v. Merla, 5 Cir. 1974, 493 F.2d 910; United States v. Miller, 5 Cir. 1974, 492 F.2d 37; United States v. Daly, 5 Cir. 1974, 493 F.2d 395.

Once Immigration agents had lawfully stopped the car pursuant to a valid border search, they were empowered to search the car for aliens. United States v. McDaniel, 5 Cir. 1972, 463 F.2d 129, cert. denied, 19, 73, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041; Ramirez v. United States, 5 Cir. 1959, 263 F.2d 385. Moreover, once the validity of the stop is conceded, the search was lawful without further reference to the “border search” doctrine.

As soon as the officers’ investigatory stop was made, .they had probable cause to believe that there was contraband in the car. One of the border patrol agents smelled marijuana when the driver rolled down the window; he saw marijuana debris on the back seat floorboard ; he saw the back seat abnormally elevated four inches resting on white blocks which he could justifiably have believed were marijuana bricks. Given the existence of probable cause, it is equally clear that “exigent circumstances” existed to justify the officers’ failure to obtain a search warrant, for the officers were preparing to search a movable vehicle on the open road. Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.

III.

The appellants Emigh and Michaud contend that the evidence was insufficient to support their convictions, because nothing in the evidence tended to show that the two of them were in possession of the marijuana. In this case, the only evidence tending to show that Michaud and Emigh had any connection with the marijuana was the fact that they were found in the automobile at the time the marijuana was found. There was, on the other hand, far more substantial evidence tending to tie the defendant Cantu with the marijuana. The customs agent testified that Cantu had told him that he had purchased the marijuana at La Villa, Texas, for $1400; and that Cantu had indicated that he intended to take the marijuana back with him to Las Vegas.

To reverse a criminal conviction for insufficiency of the evidence, we must find that there was no evidence on the basis of which the jury could have excluded beyond a reasonable doubt every reasonable hypothesis but that of guilt. E. g., Vick v. United States, 5 Cir. 1954, 216 F.2d 228.

In Guevara v. United States, 5 Cir. 1957, 242 F.2d 745, the police had arrested the defendant and a passenger in his car for reasons unrelated to drugs. They found a package of marijuana cigarettes on the floor of the car beneath the front seat during a search of the car at the police station. The police, believing that Guevara had simply been carrying his passenger home, released the passenger. Guevara was convicted of illegal possession. This Court reversed. We held:

The cigarettes were in such position in the car that they could easily have been placed in the unlocked vehicle by any person. Under the circumstances here proved, there is no rational connection between ownership and possession of the automobile and possession of the cigarettes. For all that the present evidence shows, it is just as reasonable to believe that the cigarettes belonged to the passenger as to the appellant. A jury must not be left to speculate and surmise in a criminal case, merely hoping that they are drawing the proper inference.

242 F.2d at 747. In effect, the Court held that the hypothesis that the cigarettes were the passenger’s was a reasonable one, and that there was no evidence upon which the jury could have excluded it beyond a reasonable doubt.

In United States v. Duke, 5 Cir. 1970, 423 F.2d 387, we reached a similar result. In that case, three men, the owner of the car (Liles), and two friends of his (Duke and Sanchez) were found in a car in which a cigarette package containing over $2,000 worth of heroin was found. Duke and Liles were indicted; Sanchez died before the indictment was handed down, and thus was named in the indictment as an unindicted principal. The defendants and Sanchez were found in Del Rio, Texas, and had been visiting there and in Ciudad Acuna, Mexico, for several days prior to their arrest. They had travelled there from Washington State, where Sanchez and Liles lived. The jury convicted Liles and Duke, and this Court reversed. The Court characterized the position of the Government in this manner:

The government insists that the close friendship among the men, the long and strenuous trip which they had taken, the apparently frivolous justification for such a long trip, their constant association while in Del Rio, and the very considerable cost of the heroin ... all combined to justify an inference by the jury that this was a joint venture to obtain heroin.

423 F.2d at 391. The Court rejected this position:

In this case, however, after a careful study, we conclude that all of the admissible evidence which the jury was free to consider under the court’s instructions was not sufficient to convince a reasonable juryman beyond a reasonable doubt that either or both of the defendants had knowing possession of the heroin. We find nothing from which a reasonable jury could fairly hold the evidence inconsistent with the hypothesis that Sanchez possessed the heroin and that its presence was not known to Liles and Duke.

423 F.2d at 392.

This case is governed by Guevara and Duke. In this case, there was insufficient evidence because there was no evidence upon which the jury could have excluded the hypothesis that Cantu and Cantu alone exercised the “dominion and control” over the marijuana that is requisite to a finding of possession. Indeed, this case is stronger than either Duke or Guevara, for in this case there was direct evidence tending to establish the very hypothesis it is held could not have been reasonably excluded. In this case, Cantu made no statement implicating the defendants Michaud and Emigh or connecting them to the marijuana. There was no evidence that they were close friends with Cantu. There was, in sum, no evidence upon which the jury could have excluded the hypothesis that Cantu was the sole possessor of the marijuana.

Our disposition of this issue makes it unnecessary for us to consider the propriety of those aspects of the trial court’s charge to which Emigh and Mi-chaud object.

The conviction of the defendant-appellant Cantu is affirmed. The convictions of the defendants-appellants Emigh and Michaud are reversed.

      . Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596, In United States v. Miller, en banc, 5 Cir., 1974, 492 F.2d 37, this Court held that Al-m&ida-Sancliez should not be applied retroactively.

      . No roads leading from the border intersect Highway 281 north of the checkpoint. But State Highway 755, a secondary road leading from the border, intersects Highway 281 about 18 miles south of the checkpoint.

      . See also United States v. McDaniel, 5 Cir. 1972, 463 F.2d 129, cert. denied, 1973, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041; United States v. De Leon, 5 Cir. 1972, 462 F.2d 170; Ramirez v. United States, 5 Cir. 1959, 263 F.2d 385; Haerr v. United States, 5 Cir. 1957, 240 F.2d 533. But see United States v. Diemler, 5 Cir. 1974, 498 F.2d 1070; United States v. Byrd, 5 Cir. 1974, 494 F.2d 1284; United States v. Storm, 5 Cir. 1973, 480 F.2d 701; Marsh v. United States, 5 Cir. 1965, 344 F.2d 317.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Hartle M. BOWNESS, Defendant-Appellant.
    No. 72-2160.
    United States Court of Appeals, Fifth Circuit.
    Nov. 18, 1974.
    Rehearing Denied March 4, 1975.
    Kenneth G. Anderson, Jacksonville, Fla., James A. Moreland, Winter Park, Fla., for defendant-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews, Atty., Douglas E. McKinley, Tax Div., U. S. Dept, of Justice, Washington, D. C., for defendant-appellant.

      Before WISDOM, BELL and COLEMAN, Circuit Judges.
   PER CURIAM:

This appeal is from a judgment adjudicating the defendant guilty on three counts under Section 7201 of the Internal Revenue Code of 1954.

Chapter 75, subchapter A, of the Internal Revenue Code of 1954, as amended, 26 U.S.C. §§ 7201-7241, is concerned with tax crimes. Sections 7201-7207, inclusive, which in the aggregate relate to attempts to evade or defeat tax, to failures to act, and to fraud, all include the word “willfully” in their respective contexts. Specifically, Section 7201 is a felony statute and reads:

§ 7201. Attempt to evade or defeat tax
Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution.

Section 7207 is a misdemeanor statute and reads:

“7207. Fraudulent returns, statements, or other documents
“Any person who willfully delivers or discloses to the Secretary or his delegate any list, return, account, statement, or other document, known by him to be fraudulent or to be false as to any material matter, shall be fined not more than $1,000, or imprisoned not more than 1 year, or both.

The defendant-appellant, Hartle M. Bowness, contends that the wilfulness specified by the felony statute (§ 7201) means “bad or evil motive” but in the misdemeanor statute (§ 7207) means only “without grounds for believing that [the acts] were lawful or without care, or capriciously or with a careless disregard whether one has the right to so act”. Bowness argues therefore that the district court erred in refusing to instruct the jury that the offense charged in section 7207 is a lesser included offense. In the district court and on appeal he relied on United States v. Bishop, 9 Cir. 1972, 455 F.2d 612, in which the defendant made the same contention with respect to sections 7206 and 7207 as Bowness makes with respect to sections 7201 and 7207. The Ninth Circuit’s holding in Bishop is contrary to this Court’s holding in Escobar v. United States, 5 Cir. 1967, 388 F.2d 661, cert. denied, 390 U.S. 1024, 88 S.Ct. 1141, 20 L.Ed.2d 282.

The Supreme Court has reversed Bishop, holding that the word “willfully” has the same meaning in §§ 7206(1) and 7207, connoting the voluntary, intentional violation of a known legal duty, and the distinction between the statutes is found in the additional misconduct that is essential to the violation of the felony provision; hence, the District Court properly refused the requested lesser-ineluded-offense instruction based on respondent’s erroneous contention that the word “willfully” in the misdemeanor statute implied less scien-ter than the same word in the felony statute. United States v. Bishop, 1973, 412 U.S. 346, 98 S.Ct. 2008, 36 L.Ed.2d 941.

Bishop disposes of the only substantial contention Bowness raises on appeal. We have, however, considered the appellant's other contentions. We hold that they have no merit.

Affirmed.


text:
    Clarence WATSON, Plaintiff-Appellant, v. Leroy STYNCHOMBE, Sheriff, et al., etc., Defendants-Appellees.
    No. 74-2325
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 21, 1974.
    Rehearing Denied Dec. 27, 1974.
    Clarence Watson, pro se.
    Arthur K. Bolton, Atty. Gen., Martin H. Peabody, Atlanta, Ga., for defendants-appellees.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

Watson sued the Sheriff and Deputy Sheriff of Fulton County, Georgia, under 42 U.S.C. § 1983, seeking damages for the alleged wrongful withholding of personal property taken from him upon his incarceration. He alleged jurisdiction by virtue of 28 U.S.C. §§ 1331 and 1343. The district court dismissed his petition on the ground that it was a verbatim copy of a previous petition which had been dismissed for failure to state a civil rights cause of action.

We vacate and remand to the district court for reconsideration in light of Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), which held that there is no distinction between personal liberties and property rights with respect to jurisdiction under 28 U.S.C. § 1343(3). See Montana v. Harrelson, 469 F.2d 1091 (5th Cir. 1972).

Vacated and remanded.

      . This original dismissal was clearly for lack of § 1983 based jurisdiction and expressly preserved plaintiff’s right to litigate his property loss in state court. Defendants’ contention that it had res judicata effect is not well taken. Hughes v. United States, 71 U.S. (4 Wall.) 232, 18 L.Ed. 303 (1866) ; Tyler Gas Service Co. v. Federal Power Commission [101 U.S.App.D.C. 184], 247 F.2d 590 (1957) ; see Fed.R.Civ.P. 41(b).


author: BELL, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lamartine NAZIEN, Lelio Saintil and Reynald Morelus, Defendants-Appellants.
    No. 74-1154.
    United States Court of Appeals, Fifth Circuit.
    Nov. 18, 1974.
    Certiorari Denied March 3, 1975.
    See 95 S.Ct. 1358.
    Jack H. Cohen, Miami, Fla. (Court-appointed), for Nazien, Saintil, and More-lus.
    Robert V/. Rust, U. S. Atty., Robert C. Byrne, Charles 0. Farrar, Jr., Asst. U. S. Attys., Miami, Fla., for plaintiff-ap-pellee.
    Before WISDOM and BELL, Circuit Judges, and BREWSTER, District Judge.
   BELL, Circuit Judge:

The sole assignment of error in this marijuana possession with intent to distribute case, 21 U.S.C.A. § 841(a)(1), is that the evidence was insufficient to warrant the convictions.

Appellants rely on the case of Vick v. United States, 5 Cir., 1954, 216 F.2d 228. There we held that the presence near an illegal distillery of one who could have been a hunter (in possession of a shotgun), coupled with flight, without more, was insufficient to warrant conviction. We stated that to sustain conviction in a circumstantial evidence case, the inferences reasonably to be drawn from the evidence must not only be consistent with the guilt of the accused but inconsistent with every reasonable hypothesis of innocence.

In Surrett v. United States, 5 Cir., 1970, 421 F.2d 403, we reconciled Vick and its progeny with Holland v. United States, 1954, 348 U.S. 121, 139, 75 S.Ct. 127, 99 L.Ed. 150, and held that “the test is not whether the evidence is inconsistent with the hypothesis of innocence but rather whether reasonable minds could so conclude”, citing Wright, 2 Federal Practice and Procedure, j[ 467, pp. 258-59 (1969). Then in United States v. Black, 5 Cir., 1974, 497 F.2d 1039, 1041, we added that whether the evidence be direct or circumstantial, the matter of the defendant’s guilt is for the jury unless the court concludes that the jury must necessarily have had a reasonable doubt as to the inconsistency. See also United States v. Hill, 5 Cir., 1973, 481 F.2d 929, 931; United States v. Stephenson, 5 Cir., 1973, 474 F.2d 1353, 1355. We do not so conclude in this case.

Customs officers on patrol in an automobile approached a ship at a dock on the Miami River at approximately 1:00 A.M. By driving without lights until the moment they reached the dock, they were able to surprise four men standing together three or four feet in front of a Chevrolet automobile parked 10 to 15 feet from the ship. The Chevrolet was headed toward the ship.

One of the men was holding a burlap bag which he dropped and simultaneously dove into the water between the ship and the dock. This man was never apprehended. The other three men, the appellants here, started to run and were apprehended in the vicinity. One of the three, Morelus, broke away shortly after-they were apprehended and was later found in an automobile owned by appellant Saintil, some 150 yards away from the ship. Another automobile owned by appellant Nazien was parked approximately 50 yards from the ship. These two vehicles plus the Chevrolet were the only vehicles in the vicinity of the ship. (The owner of the Chevrolet was not placed at the scene nor was he ever located.) The officers smelled the odor of marijuana emanating from the dropped bag and from the Chevrolet. One officer testified that there was another bag near the rear of the Chevrolet. Another officer saw two bags instead of one leaning against the rear of the vehicle. Eight burlap bags of marijuana were taken from the trunk of the Chevrolet and one from the rear seat.

Appellants are Haitians who stated that they were in the vicinity of the ship for the purpose of receiving messages from relatives from the crew of the ship and for the purpose of sending food and clothing to relatives in Haiti. There was no corroborating evidence of these contentions other than the fact that the ship made a regular run to Haiti. Nazien and Saintil are related and Morelus lived with Saintil. Nazien went by Saintil’s home on the night in question to advise that the ship had arrived.

Nazien and Saintil told essentially the same story. They testified that they reached the dock in separate vehicles at eleven o’clock. They were arrested as they made their separate ways to the ship. They saw two men jump into the river and the third man arrested was one of these and not Morelus. Saintil stated that Morelus remained in Sain-til’s automobile rather than going to the ship. Morelus also testified that he remained in the automobile and denied that he was ever near the ship and dock or that he escaped.

Having viewed the evidence in the light most favorable to the government as is the rule on appeal, Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680, 704; United States v. Black, 497 F.2d at 1041, we hold that reasonable minds could conclude that the sum of this evidence was inconsistent with the hypothesis of the innocence of appellants.

Affirmed.