author: STEVENS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James E. FLEMING, Jr., et al., Defendants-Appellants.
    Nos. 74-1112-7A-1115.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 4, 1974.
    Decided Oct. 23, 1974.

      Edward L. Welch, Edwardsville, 111., Patrick M. Flynn, Belleville, 111., for defendants-appellants.
    Henry A. Schwarz, U. S. Atty., and Joel V. Merkel, Asst. U. S. Atty., E. St. Louis, 111., for plaintiff-appellee.
    Before CUMMINGS, STEVENS and TONE, Circuit Judges.
   STEVENS, Circuit Judge.

James Earl Fleming, Jr., Kenneth J. Bevineau, Henry L. Fleming and Ronald Lee Williams were indicted on five substantive counts of bank robbery, under 18 U.S.C. § 2113 and § 2, and one conspiracy count, under 18 U.S.C. § 371. The indictments stemmed from the armed robbery of the First National Bank of East St. Louis, Illinois, on February 13, 1973.

After two days’ testimony, during which several government witnesses present during the robbery identified him as one of the robbers, Ronald Lee Williams entered a plea of guilty on all six counts. The jury subsequently returned guilty verdicts against the remaining defendants on the five substantive counts.

Defendants James Fleming, Jr., Kenneth Bevineau, and Henry Fleming appeal from the convictions and the sentences imposed by Judge Foreman on five grounds: 1) the evidence was insufficient to support the convictions; 2) the defendants were prejudiced when the government put co-defendant Williams on the stand, after he had entered a guilty plea, knowing that Williams would refuse to testify and would assert his Fifth Amendment privilege against self-incrimination; 3) the trial judge erred in denying these defendants’ motions for severance from the trial of co-defendant Williams; 4) the trial judge erred in admitting the testimony of Sidney Fleming and Bonita Thomas about a pistol allegedly used in the robbery and in other evidentiary rulings; and 5) Judge Foreman’s sentencing of the defendants to serve consecutive sentences on multiple counts based on 18 U.S.C. § 2113 arising from a single bank robbery was improper. Defendant Ronald Williams also appeals on this last basis.

We find appellants’ first four contentions to be without merit. We do, however, agree that Judge Foreman erred in prescribing multiple sentences for what was in fact a single bank robbery. Thus, we adjust the sentences of all four of the defendants.

I.

In challenging the sufficiency of the evidence, defendants Bevineau, James Fleming, Jr., and Henry Fleming correctly note that the government’s case was to a large extent based on the testimony of Otis Phillips. Phillips was incarcerated in the St. Clair County Jail on a draft evasion charge during the summer months of 1973. He testified that he had spoken with each of the three' defendants during this period of time and that each had confessed to having participated in the February 13 bank robbery. The confessions each linked the declarant with other of the defendants and described parts of the robbery in detail. Defendants challenge the admission of Phillips’ testimony on several grounds.

Appellants recognize that normally the credibility of a witness is for the trier of fact, in this case the jury, to determine. They contend, however, that Phillips’ testimony was “false as a matter of law” because of the discrepancies in the dates on which Phillips claimed to speak to the defendants and the actual dates on which the defendants were in the county jail. These discrepancies go not to the admissibility of the evidence, however, but only to its weight. The discrepancies were noted and commented upon by defendants’ counsel during closing argument. We think the jury properly considered them in determining Phillips’ credibility.

Secondly, the defendants note that Phillips was still awaiting sentencing on the draft evasion charge when he testified in this case. They suggest that Phillips had, therefore, a motive for falsely testifying to aid the government’s case. Suffice it to say that such a consideration once again goes only to the weight of Phillips’ testimony and not to its admissibility. Defense counsel brought Phillips’ status to the attention of the jury, and it was considered by them in determining his credibility.

Finally, the defendants object to the admission of Phillips’ testimony because they contend the confessions were not adequately corroborated by other evidence. The Supreme Court has indicated that confessions must be corroborated before they may be admitted. Opper v. United States, 348 U.S. 84, 91, 75 S.Ct. 158, 99 L.Ed. 101, see also United States v. Pichany, 490 F.2d 1073, 1076-1077 (7th Cir. 1973). As the Court stated in Opper, “It is necessary, therefore, to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the statement. It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth.” 348 U.S. at 93, 75 S.Ct. at 164.

The Supreme Court explained the character of the corroboration that is required in Wong Sun v. United States, 371 U.S. 471, 489-490 n. 15, 83 S.Ct. 407, 419, 9 L.Ed.2d 441,

Where the crime involves physical damage to person or property, the prosecution must generally show that the injury for which the accused confesses responsibility did in fact occur, and that some person was criminally culpable. A notable example is the principle that an admission of homicide must be corroborated by tangible evidence of the death of the supposed victim. (citation omitted) There need in such a case be no link, outside the confession, between the injury and the accused who admits having inflicted it. (emphasis added).

See also United States v. Charpentier, 438 F.2d 721, 724-725 (10th Cir. 1971). Thus, the government’s evidence of the corpus delicti was adequate to corroborate Bevineau’s confession to Phillips that he participated as a lookout, and the Flemings’ confessions as well.

Having concluded that Phillips’ testimony concerning the three confessions was properly admitted, it is clear that, viewing the evidence in the light most favorable to the government, it was sufficient to convict these three defendants of the bank robbery. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; United States v. White, 470 F.2d 170, 172 (7th Cir. 1972).

II.

Defendants James and Henry Fleming and Bevineau contend that their rights to a fair trial and of confrontation were denied when the government put co-defendant Ronald Williams on the stand after he had pleaded guilty. Williams refused to answer any questions when called.

Defendants rely principally on Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934. In Douglas, a co-defendant’s confession implicating Douglas was read in open court under the guise of examining the co-defendant, who refused to answer. There the confession “formed a crucial link in the proof both of [Douglas’] act and of the requisite intent to murder.” 380 U.S. at 419, 85 S.Ct. at 1077. Because the co-defendant refused to answer questions, Douglas was unable to confront him and cross-examine him as to the veracity of the confession as it implicated Douglas. The Supreme Court held that the use of the confession in this manner by the prosecution effectively denied Douglas his Sixth Amendment rights.

Here, no confession of Williams was ever read into evidence. He was asked only two questions: “Will you state your name, sir?” and “Mr. Williams, did you this morning plead guilty to each of the six counts in the indictment in this case that we have been trying for the last two days, sir?” Williams refused to answer either. Neither of the questions in any way incriminated the remaining defendants; there was already ample evidence in the record of Williams’ guilt. No confrontation rights were lost.

Indeed, there was less prejudice to the defendants’ Sixth Amendment rights here than that found acceptable in Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684. There, the prosecutor had summarized the confession of a co-defendant in his opening statement. When, later, the co-defendant refused to answer any questions, a Sixth Amendment contention similar to that here was raised. Nevertheless, the Court refused to find constitutional error, noting that the confederate was on the stand for only a short period of time and that only a paraphrase of the statement was placed before the jury. This, coupled with the trial judge’s instruction to the jury that the statements of counsel were not evidence, led the Court to conclude that there was no deprivation of the right of confrontation. We conclude that a similar result is warranted here.

Appellants argue alternatively that their rights to a fair trial were denied when the trial judge refused to instruct the jury that Williams’ refusal to testify should not be charged to the defendants. After reviewing the record, we are convinced that Judge Foreman was correct when he concluded that no such instruction was necessary. There is nothing in the record that in any way suggests that Williams’ truculence was attributable to the defendants. As Judge Foreman was present and able to observe the effects of Williams’ outburst on the jury, we feel he was in the best position to determine the need for such an instruction.

Finally, we reject defendants’ suggestion that the government’s purpose in putting Williams on the stand was solely to bring before the jury the fact that he pleaded guilty in order to enhance the credibility of Otis Phillips’ testimony. As Williams had pleaded guilty to all six counts of the indictment, he no longer could assert his Fifth Amendment privilege to avoid testifying. United States v. Skolek, 474 F.2d 582, 585 (10th Cir. 1973); United States v. Hoffman, 385 F.2d 501, 505 (7th Cir. 1967), cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288. The government had obtained immunity from the state authorities as well to protect Williams in any subsequent state prosecution based on this robbery. Thus, the government believed it could compel Williams to answer questions about this transaction. While the court had been informed that Williams did not wish to testify, and that Williams’ attorney was concerned lest Williams incriminate himself in connection with potential Missouri parole violation and federal flight to avoid prosecution charges, there was no indication that Williams would not answer narrowly-drawn questions relating solely to the bank robbery when directed to do so by the court. We do not believe the evidence warrants the conclusion that the government acted in bad faith in calling him as a witness, Cf. Frazier v. Cupp, 394 U.S. 731, 736-737, 89 S.Ct. 1420, 22 L.Ed.2d 684.

III.

Judge Foreman denied the motions of Bevineau and James and Henry Fleming for severance of their trial from that of Ronald Williams, who had confessed to participating in the bank robbery. Relying on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, they contend this was reversible error. We disagree.

In Bruton, a confession given by co-defendant Evans implicating Bruton was introduced into evidence. As Evans did not take the stand, Bruton was unable to confront him with respect to the damaging portions of the confession. The Supreme Court concluded that Bruton had been denied his constitutional right of confrontation and that an instruction to the jury to consider Evans’ confession only on the issue of his guilt or innocence was inadequate to protect Bruton.

Bruton requires that, if the prosecution intends to utilize the confession of a defendant against him, appropriate steps must be taken to insure that the Sixth Amendment rights of co-defendants are not impaired. One obvious way to prevent this would be to order separate trials, as Bruton suggests. We have indicated, in United States v. Gregg, 414 F.2d 943, 948 (7th Cir. 1969), cert. denied, 399 U.S. 934, 90 S.Ct. 2251, 26 L.Ed.2d 806, and the Court suggested in Bruton, 391 U.S. at 134 n. 10, 88 S.Ct. 1620, that another means is. available: the deletion of any reference to co-defendants in the confession. If the witness testifying as to the confession does not refer to co-defendants, co-defendant Sixth Amendment rights are not denied.

Thus, the mere fact that the prosecution had obtained a confession from Wiliams did not require the granting of the other defendants’ motions to sever. At that point, it was not known if the government even planned to introduce the confession. And, if the plans were to introduce it, these defendants’ Sixth Amendment rights could be protected by appropriate deletions.

IV.

The defendants next argue that it was error to allow the testimony of Sidney Fleming and Bonita Thomas with respect to a pistol that was allegedly used in the robbery to remain in the record. They contend that these witnesses were unable adequately to connect the gun in question to the robbery and that the defendants were prejudiced by the testimony.

Sidney Fleming, grandfather of the Flemings and grandfather-in-law of Bevineau, testified that he had owned a pistol for over two years, but that it had been missing at one time. His recollection was refreshed by an earlier statement he had made that the gun had left his possession in February or March, 1973. He then testified that Henry Lee Fleming and “two or three more” later returned the gun to him. On cross-examination, however, he admitted not knowing “what date or what month it was that the gun was missing from my home.”

Bonita Thomas, granddaughter-in-law of Sidney Fleming, testified that Sidney Fleming had been looking for James Fleming to return the gun and that she saw James Fleming and others she could not identify come to her grandfather’s house to return the gun. She was unable, however, to pinpoint the date of this occurrence.

Otis Phillips connected up much of this testimony about the revolver when he stated that James Fleming admitted that he had received his share of the proceeds of the robbery at his grandfather’s house and that he gave the weapon to his grandfather at that time. We think that the government sufficiently linked the revolver in question to the bank robbery through these witnesses to permit the testimony to remain in the record. Any ambiguity as to the dates of these occurrences properly went to the weight of the testimony and not to its admissibility. Counsel for the defendants dwelled at length on the weakness of this evidence in closing argument. We feel it was proper to allow the evidence to be considered by the jury.

We have examined the defendants’ other evidentiary contentions and do not find them meritorious.

V.

All four of the defendants challenge the propriety of the sentences .imposed by Judge Foreman. As we conclude that the judge improperly interpreted the Federal Bank Robbery Act, we need not reach the defendants’ contentions that the sentences violated the Fifth Amendment guarantee against double jeopardy, The relevant provisions of 18 U.S.C. § 2113, § 2 and § 371 are set forth in the margin.

The indictment charged each of the four defendants on five substantive bank robbery counts. Count I charged the defendants with having taken $2,625.00 by force, violence and intimidation from the person and presence of Marilyn Higgins, a teller at the bank, in violation of 18 U.S.C. § 2113(a) and § 2. Count II charged the defendants with having taken $6,953.16 by force, violence and intimidation from the person and presence of Ruth King, a teller at the bank, in violation of 18 U.S.C. § 2113(a) and § 2. Count III charged the defendants with having taken the total of $9,578.16 from the bank itself, in violation of § 2113(b) and § 2. Count IV charged the defendants with assaulting and putting in jeopardy by use of a dangerous weapon the life of Marilyn Higgins in connection with the taking of the $2,625.00 from her person, in violation of 18 U.S.C. § 2113(d) and § 2. Count V charged the defendants with assaulting and putting in jeopardy by use of a dangerous weapon the life of Ruth King in connection with the taking of $6,953.-16 from her person in violation of 18 U. S.C. § 2113(d) and § 2. Count VI charged the defendants with conspiracy to commit the aforementioned offenses, in violation of 18 U.S.C. § 371. •

Judge Foreman sentenced Ronald Williams, who had pleaded guilty,to all six counts, to 20 years each on Counts I and IV and 10 years on Count III, with sentences to run concurrently with one another. He then sentenced Williams to 20 years each on Counts II and V and five years on Count VI, with sentences to run concurrently with one another, but consecutively to the concurrent terms on Counts I, III, and IV. Thus, Williams was sentenced to serve a total of 40 years.

Like Williams, James and Henry Fleming were sentenced to 20-year terms on Counts I and IV and 10 years on Count III with sentences to run concurrently. They also received 20-year sentences on Counts II and V, to run concurrently, but consecutively to the sentences imposed under Counts I, III, and IV, for a total sentence of 40 years. Bevineau received the same sentences, except that he was sentenced to only 10 years on Counts II and V, for a total of 30 years.

Defendants contend first that Judge Foreman erred in sentencing them separately under subsections (a), (b), and (d) for what was in fact the robbery of a single teller. They argue that subsections (a) and (b) merge into the aggravated robbery punishable under subsection (d), and that even the imposition of concurrent sentences was erroneous. Then, they contend that the placing of the lives of two tellers in jeopardy during a single bank robbery does not constitute the commission of two separate offenses under subsection (d). Thus, they conclude that their maximum sentences should have been those imposed by Judge Foreman for one subsection (d) violation: 20 years. For the following reasons, we agree.

In Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370, the Supreme Court concluded that Congress, in enacting the Federal Bank Robbery Act, did not intend to provide for pyramiding of penalties. 352 U.S. at 327-328, 77 S.Ct. 403. Thus, the Court held that the offense of entering a bank for purposes of committing a felony merged with the offense of bank robbery. Subsequent court decisions have indicated that the subsections of § 2113 were intended to set forth a progression of aggravated offenses: (b) relates to simple robbery from the institution; (a) relates to robbery by force, violence and intimidation from the person or presence of a bank employee; (d) relates to the commission of an offense defined in either (a) or (b) with the addition of putting in jeopardy the life of any person by use of a dangerous weapon or device. The three subsections provide for increasing maximum punishments as well. Thus, each of the circuits has concluded that Congress intended subsection (b) to merge into subsection (a) and subsection (a) into subsection (d) when the elements of a subsection (d) violation are present. In such a case there is only one offense, and there may be only one sentence. United States v. Trumblay, 286 F.2d 918, 920 (7th Cir. 1961); United States v. Faleafine, 492 F.2d 18, 24 & n. 5 (9th Cir. 1974). Since Counts I and III merged into Count IV, and Count II merged into Count V, it was improper for Judge Foreman to have sentenced the defendants on Counts I, II, and III.

The fact that Judge Foreman ordered the sentences on these counts to run concurrently with the 20-year sentences issued under Counts IV and V does not correct the error. These defendants may still be prejudiced by the imposition of these illegal sentences, and they must be vacated. United States v. Shelton, 465 F.2d 361, 363 (4th Cir. 1972); Burger v. United States, 454 F.2d 723, 724 (5th Cir. 1972); cf. United States v. Canty, 152 U.S.App.D.C. 103, 469 F.2d 114, 126 & n. 14 (1972).

Can the consecutive sentences imposed under Counts IV and V stand? In effect, Judge Foreman sentenced each defendant for placing the life of each teller in jeopardy. Presumably, during the course of a single bank robbery, money could be taken at gunpoint from as many as a dozen tellers. Each robber could, presumably, be sentenced to serve up to 12 consecutive 25-year sentences under subsection (d). We do not think this is what Congress intended in passing the Federal Bank Robbery Act.

The Supreme Court has indicated that where Congress has not clearly spoken, “doubt will be resolved against turning a single transaction into multiple offenses.” Bell v. United States, 349 U.S. 81, 84, 75 S.Ct. 620, 622, 99 L.Ed. 905. This admonition guided the Court in United States v. Canty, 152 U.S.App.D.C. 103, 469 F.2d 114 (1972). Canty was charged with four counts of bank robbery under subsection (a); he and his accomplices had taken funds from four different tellers. The trial judge imposed four concurrent sentences on the bank robbery counts. On appeal, the Court of Appeals concluded that the trial judge had erred in treating the robbery from each teller as a separate offense.

[W]e cannot agree with the Government’s position that the robbery of each teller constitutes a separate “taking” within the meaning of the statute. While it may be true that under general theft and robbery statutes, a defendant may be punished under separate counts for taking money from different people in the same transaction, the statute here is not for theft or robbery against the person generally. The crime is bank robbery, and the statute is entitled “Bank Robbery and Incidental Crimes.” There is no doubt here that only one transaction took place and that only one bank was robbed. 469 F.2d at 126 (footnotes omitted; emphasis in original).

The Court vacated all but one of the subsection (a) sentences.

A similar result was reached on facts virtually identical to those in this case in an older Ninth Circuit decision, Dimenza v. Johnston, 130 F.2d 465 (9th Cir. 1942). The defendant had been charged on one count of violating 12 U.S.C.A. § 588b(a) (the predecessor of § 2113(a)), on three counts of violating 12 U.S.C.A. § 588b (b) (the predecessor of § 2113(d)), and on a conspiracy count. He had placed the lives of three persons in jeopardy by use of a deadly weapon. The trial court had sentenced the defendant to consecutive five-year terms on each count. On appeal, the Ninth Circuit reversed, concluding that the sentence imposed on one count of placing a life in jeopardy by use of a deadly weapon “covered all counts of the indictment except the two-year sentence on [the conspiracy count].” 130 F.2d at 467. As the defendant had served seven years, the court ordered that he be released. In denying a petition for rehearing, the court reaffirmed its prior holding and concluded,

If the lives of a dozen persons were imperiled the fact that the draftsman chose to name each individual in a separate count rather than to include them all in one count . . . did not constitute each count a separate and distinct bank robbery, although, if the offense charged had been that of an assault upon the individual, it would do so. 131 F.2d 47, 48 (9th Cir. 1942).

The only significant authority contrary to our conclusion that only one subsection (d) offense is committed when the lives of more than one teller are placed in jeopardy during a single bank robbery is the later Ninth Circuit decision in Clermont v. United States, 432 F.2d 1215 (9th Cir. 1970), cert. denied, 402 U.S. 997, 91 S.Ct. 2182, 29 L.Ed.2d 163. There, the defendant had placed the lives of two tellers in jeopardy and had received two concurrent 25-year sentences under subsection (d). On appeal, these sentences were affirmed, the court concluding that, as the assaults were committed on two different persons, the offenses did not merge. 432 F.2d at 1217.

The Ninth Circuit has recently indicated its disapproval of the result reached in Clermont. In United States v. Faleafine, 492 F.2d 18, 24 (9th Cir. 1974), the court noted that Clermont did not cite Dimenza, and appeared to be an “aberration.”

The only other support for permitting multiple subsection (d) offenses and sentences is McDonald v. Hudspeth, 129 F.2d 196 (10th Cir. 1942), cert. denied, 317 U.S. 665, 63 S.Ct. 75, 87 L.Ed. 535. With little discussion, the court concluded that placing the life of a different person in jeopardy created a separate offense under 12 U.S.C.A. § 588b(b) (§ 2113(d)’s predecessor). The decision in McDonald was cited to the Ninth Circuit in the petition to rehear Dimenza v. Johnston. In declining to follow McDonald, the court noted that the aforementioned statements in McDonald were dicta because the question was not within the issues properly raised by the habeas corpus petitioner 131 F.2d at 48.

We feel that the result reached in Dimenza, for the reasons set forth in Canty, is the appropriate one. The crime is bank robbery, not personal assault. Subsection (d) is merely an aggravated form of bank robbery. Congress’ concern was penalizing the robbery of the institution, perpetrated by whatever means, and not penalizing the robbery of each individual teller.

We are not suggesting that these defendants might not be liable for assaulting each teller separately under state law. Cf. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684. We only hold that placing the lives of more than one person in jeopardy during a single bank robbery constitutes only one offense under § 2113(d).

Our conclusions necessitate the following revisions in the sentences imposed by Judge Foreman. We vacate the sentences imposed on Counts I, II, III and IV for both James and Henry Fleming; only the 20-year sentence under Count V remains. Our problem is somewhat more complex for defendant Bevineau. Clearly the sentences for Counts I, II, and III must be vacated. Bevineau, the lookout during the robbery, received a 20-year sentence on Count IV (assault on teller Higgins) but only a 10-year sentence on Count V (assault on teller King). Both of these sentences, imposed under subsection (d), cannot stand. We cannot determine whether Judge Foreman, faced with the choice of retaining the 20-year sentence or that for 10 years, would desire Bevineau to serve the same term as, or a shorter term than, the other defendants. Thus, we remand Bevineau’s case to Judge Foreman to enable him to choose whether to retain the sentence under Count IV or Count V.

The sentences imposed on Counts I, II, and III for defendant Williams must similarly be vacated. Only one of the 20-year sentences imposed on Counts IV and V can remain. Williams, in addition, was sentenced to a five-year term on Count II, the conspiracy count. At the close of the government’s ease against the remaining three defendants, after Williams’ guilty plea on all six counts, the district judge granted defense motions for acquittal on Count VI. Thus, only Williams stands convicted of conspiracy.

For two reasons, we believe Williams’ sentence on Count VI must be vacated. First, since the five-year sentence on the conspiracy count was to run concurrently with the sentence on Counts II and V, and since the effect of all of the sentences was to impose an identical total sentence on each of the four co-defendants, we cannot believe that the trial judge intended that the one defendant who entered a guilty plea should serve a longer sentence than any of his three co-defendants. Second, it is clear that a conspiracy requires at least two participants, and it has repeatedly been said that the acquittal of all but one of the alleged conspirators should operate as an acquittal of that defendant as well. See e. g. United States v. Goodwin, 492 F.2d 1141, 1144 (5th Cir. 1974); United States v. Gardner, 475 F.2d 1273, 1277 (9th Cir. 1973), cert. denied, 414 U.S. 835, 94 S.Ct. 178, 38 L.Ed.2d 70; Dodson v. United States, 215 F.2d 196, 200 (6th Cir. 1954); United States v. Fox, 130 F.2d 56, 57 (3rd Cir. 1942), cert. denied, 317 U.S. 666, 63 S. Ct. 74, 87 L.Ed. 535. Precisely how that rule should apply to a case in which the record demonstrates that the one defendant adjudged guilty of conspiracy did in fact conspire with the defendants who have been adjudged not guilty is not at all clear in view of the well-settled rule that verdicts in criminal cases need not be consistent. See Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356. Nevertheless, in view of our appraisal of the intent of the trial judge, we believe the rule should be applied in this case and, therefore, that Williams’ sentence on Count VI must be vacated.

Accordingly; we remand these cases for proceedings consistent with this opinion.

      . At the close of the government’s case, the court directed a verdict of acquittal on the conspiracy count, Count YI, as to the remaining three defendants.

      . Phillips testified that James Fleming confessed to him in late September, 1973. James Fleming was not, in fact, brought to the jail until October 23, 1973. Phillips said he talked with Bevineau in August, 1973. Bevineau was not in the jail between July 10 and September 13, 1973. Finally, Phillips testified that Henry Fleming admitted his participation in the robbery while Phillips was awaiting trial on his draft evasion charge. But Phillips was tried before June 27, 1973, and Henry Fleming did not arrive at the jail until September 13, 1973.

      . There is additional significant corroborating evidence as to the two Flemings. It is not disputed that there is ample evidence that two men entered the bank and robbed two tellers on February 13, 1973. One was positively identified as Ronald Williams by several witnesses. One witness stated that the other “looked like” James Fleming, Jr. ' Although not a positive-enough identification for purposes of demonstrating Fleming’s guilt, the testimony helps to corroborate Phillips’ story. Other witnesses stated that, when the two men left the bank, the getaway vehicle zoomed away after the second robber had barely entered, thus creating the strong inference that a driver had been waiting in the car. Henry Fleming was the driver according to Phillips.

      . Contrary to defendants’ contentions, we believe the government’s use of the prior statement was more in the nature of refreshing the witness’ recollection than impeaching him.

      . § 2113. Bank robbery and incidental crimes.
      (a) "Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other tiling of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association;
      * sk * ❖ X

      Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.
      (b) Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both;
      •fc v
      (d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device,, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.
      § 2. Principals.

        (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
      (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an, offense against the United States, is punishable as a principal.
      § 371. Conspiracy to commit offense or to defraud United States.
      If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.

      . Indeed, the robber need not personally place the life of every teller in jeopardy. Under 18 U.S.C. § 2, he would presumably be liable for the acts of his confederates in obtaining money at gunpoint, as was the case here.

      . The government recognized that possibility here, for it obtained immunity for Williams from the Illinois authorities prior to calling him as a witness against the other three defendants.

      . It is clear that the inchoate offense of conspiracy does not merge with the choate bank robbery offense. United States v. Welty, 426 F.2d 615, 619 n. 15 (3rd Cir. 1970) ; see Dimenza v. Johnston, 130 F.2d 465, 467 (9th Cir. 1942).

      . We recognize, of course, that the conviction of a single conspirator may be upheld if the indictment alleges that the conspiracy involved unknown persons. The indictment in this case did so allege. However, the government offered no evidence to show that anyone except the four defendants participated in the conspiracy to rob the bank. Didenti v. United States, 44 F.2d 537, 538 (9th Cir. 1930) is therefore distinguishable.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    In the Matter of AMEX-PROTEIN DEVELOPMENT CORPORATION, Bankrupt. M. NOLDEN, Trustee of Estate of Bankrupt, Appellant, v. PLANT RECLAMATION, Appellee.
    No. 73-3119.
    United States Court of Appeals, Ninth Circuit.
    Sept. 19, 1974.
    Harvy W. Hoffman, Jr., Hoffman & Kelly, San Francisco, Cal., for appellant.

      Matthew Koppel, San Francisco, Cal., for appellee.
    Before MERRILL and TRASK, Circuit Judges, and FERGUSON, District Judge.

       The Honorable Warren J. Ferguson, United States District Judge, Central District of California, sitting by designation.

   OPINION

PER CURIAM:

This is an appeal filed pursuant to § 24 of the Bankruptcy Act (11 U.S.C. § 47) from a judgment of the district court holding that a valid and enforceable security interest was created under the provisions of the Uniform Commercial Code.

We adopt the following opinion of the Honorable George B. Harris, United States District Judge for the Northern District of California:

“This matter is on review from an Order of the Referee which declared invalid a security interest claimed by petitioner Plant Reclamation, a creditor of the bankrupt, in certain personal property in the possession of the bankrupt.

“Plant Reclamation had sold equipment to the bankrupt on open account, but on October 16, 1972, substituted a promissory note for the open account indebtedness and caused a financing statement to be signed and filed. The parties intended to create a security interest in the property sold as collateral for the note, and the Referee so found.

“The promissory note included the following line: ‘This note is secured by a Security Interest in subject personal property as per invoices.’ The words ‘subject ... as per invoices’ were handwritten in an otherwise typewritten sentence; the testimony before the Referee established that such words were added by an officer of the bankrupt in order to tie the security interest to the personal property that had been sold to the bankrupt by Plant Reclamation. The invoices referred to in the promissory note were the only ones submitted by Plant Reclamation.

“The financing statement named Plant Reclamation as the secured party and recited that it covered the following types or items of property:

1 — Dorr Oliver 100 Sq. Ft. Vacuum Filter
1 — Chicago Pheumatic [sic] Vacuum Compression
1 — Stainless Steel Augar and Drive 1 — Nichols Micro 7" dryer 1 — Tolhurst Centerfuge [sic] 26 inch.

Discussion

I. Did the Promissory Note ‘Create or Provide for’ a Security Interest?

“This issue turns on whether there has been compliance with the following pertinent sections of the California Commercial Code [‘Cal.Com.C.’] which govern the creation and enforcement of a security interest:

Section 9105(1) (h):

‘Security agreement’ means an agreement which creates or provides for a security interest;

Section 1201(37):

‘Security interest’ means an interest in personal property or fixtures which secures payment or performance of an obligation. * * * * Section 9203:
(1) Subject to the provisions of Section 4208 on the security interest of a collecting bank and Section 9113 on a security interest arising under the division on sales, a security interest is not enforceable against the debtor or third parties unless
(a) The collateral is in the possession of the secured party; or
(b) The debtor has signed a security agreement which contains a description of the collateral ....

* * * *

“The Referee denied the claim of Plant Reclamation on the single ground that no security interest had been ‘granted’ pursuant to the language of the promissory note, as a result of which there had been a failure to comply with the ‘creates or provides for’ requirement of Cal.Com.C. § 9105(1) (h). The Referee concluded:

Creative words do not exist in the note before me. The language relied upon is passive, descriptive and informative, much like a financing statement; it is not active or creative ; it does not grant or provide for. As such it is analogous to Needle [v. Lasco Industries, Inc., 10 Cal.App.3d 1105, 89 Cal.Rptr. 593 (1970)] and Shelton [v. Erwin, 472 F.2d 1118 (8th Cir. 1973)] rather than Nunnemaker [Transp. Co. v. United California Bank, 456 F.2d 28 (9th Cir. 1972)].
Accordingly, I conclude that the promissory note is not a security agreement under § 9105(1) (h) and that a security agreement enforceable under § 9203(1) (b) has not been proven. * * * *

“The court recognizes that, pursuant to General Order 47 in Bankruptcy, it is bound to accept the Referee’s findings of fact unless they are clearly erroneous. Here, however, the facts are not in dispute, and the court remains free to examine the legal conclusions of the Referee and to reject them if they are erroneous. In re Gregory Mobile Homes, Inc., 347 F.Supp. 528, 529 (M.D.Ga.1972); In re Christian and Porter Aluminum Company, 316 F.Supp. 1340, 1342 (N.D.Cal.1970).

“Cal.Com.C. § 9105(1) (h) defines a security agreement as one which ‘creates or provides for’ a security interest. The Referee found the above-quoted words to be synonymous with the word ‘grant’ and therefore to require active language. A fair reading of the statute, however, will not bear such a restrictive interpretation.

“It is a matter of basic statutory construction that statutes are to be given ‘such effect that no clause, sentence or word is rendered superfluous, void, contradictory, or insignificant.’ Ruiz v. Morton, 462 F.2d 818, 820 (9th Cir. 1972). In addition, absent persuasive reasons to the contrary, statutory words are to be given their ordinary meanings. Id.

“Cal.Com.C. § 9105(1) (h) nowhere uses the word ‘grants’ nor is that word a synonym for either ‘creates’ or ‘provides for’ or for all of the quoted words together.

“Webster’s Third New International Dictionary (3d ed. 1965) defines ‘create’ as a transitive verb with the following meanings inter alia:

1: to bring into existence * * * * 2: to cause to be or to produce by fiat or by mental, moral, or legal action * * * 3: to cause or occasion * * *

‘Provide’ is defined as a transitive verb with the following meanings inter alia:

2a: to fit out or fit up * * * 3: STIPULATE * * *

and as an intransitive verb with the following meanings inter alia:

la: to take precautionary measures: make provision — used with against or for * * * 2: to make a proviso or stipulation * * *

‘Grant’ is defined as a transitive verb with the following meanings inter alia:

la: to consent to carry out for a person: ALLOW, ACCORD * * * 2: GIVE, BESTOW, CONFER * * *

“Thus the requirement of Cal. Com.C. § 9105(1) (h) may be satisfied not only when a security interest is caused to be or brought into existence, but also when provision or stipulation is made therefor.

“No magic words or precise form are necessary to create or provide for a security interest so long as the minimum formal requirements of the Code are met. See Barney v. Rigby Loan & Investment Co., 344 F.Supp. 694, 697 (D.Idaho 1972); Evans v. Everett, 279 N.C. 352, 183 S.E.2d 109, 113 (N.C.1971). This liberal approach is mandated by an expressed purpose of the secured transaction provisions of the Code:

The aim of this Article is to provide a simple and unified structure within which the immense variety of present-day secured financing transactions can go forward with less cost and with greater certainty.
# # #
The Article’s flexibility and simplified formalities should make it possible for new forms of secured financing, as they develop, to fit comfortably under its provisions..... Comment to U.C.C. and Cal.Com.C. § 9101.

“The court in In re Center Auto Parts, 6 U.C.C.Rep. 398 (C.D.Cal.1968) upheld the validity of a promissory note as a security agreement by reading the two together. The promissory note merely recited that, ‘This note is secured by a certain financing statement,’ and the court found that such was sufficient to ‘create or provide for’ a security interest within the meaning of § 9105(1) (h).

“A similar result was reached in a case involving the North Carolina version of the U.C.C., Evans v. Everett, supra, wherein the debtor gave a promissory note which recited: ‘This note is secured by Uniform Commercial Code financing statement of North Carolina’ and wherein a similarly worded financing statement was thereafter filed. The court found that since a security agreement could serve as a financing statement, there was no sound reason why the converse should not be true. The court held that the financing statement before it qualified as a security agreement.

By the same token any written agreement signed by a debtor which recites that certain personalty is being encumbered as security for a debt ought to operate as a security agreement under Code § 25-9-105(1) (h). 18 Ark. L.Rev. 30, 34.
While there are no magic words which create a security interest there must be language in the instrument which ‘leads to the logical conclusion that it was the intention of the parties that a security interest be created.' In Re Nottingham, 6. U.C.C.Rep. 1197, 1199 (U.S.D.C.Tenn.1969), 183 S.E.2d 113.

“Other cases which have reached a like result and which support the position taken here include In re Wambach, 343 F.Supp. 73, 75 (N.D.Ill.1972), and cases cited therein; Cheek v. Caine & Weiner Company, 335 F.Supp. 1319, 1320 (C.D.Cal.1971); In re Carmichael Enterprises, Inc., 334 F.Supp. 94, 104-105 (N.D.Ga.1971), affirmed, 460 F.2d 1405 (5th Cir. 1972).

“The cases relied upon by the trustee and cited by the Referee are not persuasive. Shelton v. Erwin, supra, dealt with the contention that an automobile bill of sale or a title application, therefor or both together adequately set forth the intent of the parties to create or provide for a security interest and did in fact create or provide for same under pertinent Missouri statutes. In finding no security agreement, the court simply reaffirmed the principle that a single piece of paper — here the title application and later certificate of title were being treated as a financing statement — could not serve as a security agreement without containing the requirements for such. There was not, as here, two documents: a promissory note which provided for a security interest and a financing statement which gave notice of it.

“Shelton, together with other cases relied upon by the trustee, stem from the ruling in American Card Company v. H. M. H. Co., 196 A.2d 150 (R.I.1963), and therefore share its infirmities. There the court found that a financing statement which did not contain a ‘grant’ of a security interest could not also serve as a security agreement. There is no support in legislative history or grammatical logic for the substitution of the word ‘grant’ for the phrase ‘creates or provides for.’ This case has been subject to harsh criticism, see G. Gilmore Security Interests in Personal Property § 11.4 at 347-848 (1965); 6D Bender’s Uniform Commercial Code Service 2-1680, and it cannot be relied upon as dispositive in the instant case.

“Accordingly, the promissory note herein qualifies as a security agreement which by its terms ‘creates or provides for’ a security interest.

II. Adequacy of Description of the Collateral

“The trustee urges a second ground for sustaining the Order of the Referee complained of here, namely the inadequacy of the description of the collateral in the promissory note and hence the failure to comply with Cal.Com.C. § 9203(1) (b), supra.

Cal.Com.C. § 9110 provides:

For the purposes of this division any description of personal property or real estate is sufficient whether or not it is specific if it reasonably identifies what is described. Personal Property may be referred to by general kind or class if the property can be reasonably identified as falling within such kind or class or if it can be so identified when acquired by the debtor. * * * *

“Although the promissory note does not describe the collateral within the four corners of the document such description is provided (1) through incorporation by reference of the subject invoices, as well as (2) through reference to the more specific description of the collateral contained in the financing statement.

“The use of such extrinsic aids is clearly permissible to identify the collateral:

Under the Uniform Commercial Code there is no reason why parol evidence may not be admitted in aid of the description of the collateral, even where the collateral has been reasonably and sufficiently identified in the security agreement. In many instances, a description in a security agreement may be in general terms; parol evidence should therefore be admissible to explain or supplement the general description, or to resolve ambiguities. [Footnotes omitted.] 44 Cal.Jur.2d Rev. Secured Transactions § 107 at 386.

“The doctrine of incorporation by reference is likewise available in this area:

There is nothing in the Uniform Commercial Code to prevent reference in the security agreement to another writing for particular terms and conditions of the transaction. There is also nothing in the Uniform Commercial Code to prevent reference in the Security Agreement to another writing for a description of the collateral, so long as the reference in the security agreement is sufficient to identify reasonably what it described. In other words, it will at times be expedient to give a general description of the collateral in the security agreement and refer to a list or other writing for more exact description. In addition, the security agreement could itself consist of separate parts, one a general description of the obligation secured and the rights and duties of the parties, and the other a description of the collateral, both such writings being signed by the debtor and stated to comprise a single security agreement or referring to each other. [Footnotes omitted.] Id. § 109 at 387-388.

“Thus there is no requirement that the description of the collateral be complete within the four corners of the security agreement or other single document. The description in the security agreement is sufficient, however, if it provides such information as would lead a reasonable inquirer to the identity of the collateral. See In re Drane, 202 F.Supp. 221, 223 (W.D.Ky.1962), citing Sparks v. Deposit Bank of Paris, 115 Ky. 461, 74 S.W. 185, 78 S.W. 171, and cited with approval in In re Anselm, 344 F.Supp. 544, 546 (W.D.Ky.1972). As summarized by one commentator:

A description need not be so comprehensive that it enables an interested party to determine exactly what the specific collateral is, from a reading of the security agreement or financing statement alone. It is enough if the description allows a third party, aided by information which the security agreement suggests, to identify the property. D. Lee, ‘Perfection and Priorities Under the Uniform Commercial Code,’ 17 Wyo.LJ. 5-6 (1962).

Instructive here is the decision in In re Nickerson & Nickerson, Inc., 329 F.Supp. 93 (D.Neb.1971), affirmed, 452 F.2d 56 (8th Cir. 1971) on the issue of adequacy of description of the collateral. A security agreement in Nickerson described the collateral therein as:

All gifts, novelties, souvenirs, and other merchandise inventory held for resale including but not limited to the following: See attached schedules for a list of property covered by this Security Agreement.

The financing statement filed in connection with the security agreement described the collateral in different terms:

gifts, novelties, souvenirs, and other merchandise inventory held for resale and situated in debtor’s stores located in [each particular] state.

The appellate court held that the description of the collateral in the security . agreement was adequate:

As we have noted, the evidence establishes that the parties, by attaching the financing statements to the security agreement, incorporated the clarifying language of the financing statement into the security agreement, and clearly created a lien in Lugene’s [the secured party’s] favor upon the inventory in all of Nickerson’s [the debt- or’s] stores. 452 F.2d 57.

“A similar conclusion was reached in In re Center Auto Parts, supra, at 399-400, wherein the court upheld the adequacy of the description of the collateral in a security agreement through reference to a financing statement by incorporation and the resulting suggestion of inquiry or the means of identification.

“The trustee properly cites Mitchell v. Shepherd Mall State Bank, 324 F.Supp. 1029, 1032 (W.D.Okl.1971), affirmed, 458 F.2d 700 (10th Cir. 1972) for the proposition that the description of collateral contained in a financing statement may have the effect of restricting the security interest created in a security agreement but cannot enlarge it. In the instant case a reference to the more specific description contained in the financing statement does operate to restrict, rather than to enlarge, the security interest between the parties.

“A case relied upon by the trustee, Rusch Factors, Inc. v. Passport Fashion Ltd., 1 U.C.C. 507 (N.Y.Sup.Ct.1971), may be readily distinguished. There the parties executed a security agreement (trust receipt) whereby the trustee acknowledged receipt of:

the documents listed on the obverse hereof representing the goods therein specified (which, together with all improvements or additions to or accessories to or products of such goods, are all hereinafter called ‘collateral’) and . . . the existence of . . .a security interest in favor of [Itoh] in the “collateral.” Id. at 507-508.

The parties stipulated as to the nature of the subject documents, but in fact no such documents had been listed or attached to the security agreement. The court concluded that because of the absence of the documents, a reasonable inquirer, upon reviewing the security agreement with or without the financing statement, would not have discovered sufficient information to provide an adequate description of the collateral. Id. at 510.

“Rusch is pertinent here because it approves the policy of looking beyond the security agreement to the financing statement in order to ascertain the description of the collateral, but it is distinguishable on its holding because there the court found an absence of documentation. Here, however, the invoices were available but were not claimed to be physically attached to the security agreement; only if no invoices existed or could be found would the instant case be analogous to Rusch.

“This last conclusion is bolstered by J. K. Gill Company v. Fireside Realty, Inc., 262 Or. 486, 499 P.2d 813 (1972), a case similar to Rusch which cited and relied upon Rusch as authority for a similar conclusion. A security agreement executed therein described the collateral as “furniture as per attached listing.” No listing was in fact attached. The financing statement made the same description of the collateral; again no listing was attached. The court noted, however, that had the subject invoices which evidenced the furniture been attached to the security agreement, the description of the collateral would have been adequate, thus supporting the theory of description through incorporation by reference.

“It is manifest that the reference to the invoices in the subject promissory note, coupled with the existence of a financing statement containing a more specific description, satisfies the requirements of Cal.Com.C. §§ 9203(1) (b) and 9110.

III. Validity of the Oral Agreement

“Plant Reclamation argued before the Referee, and has urged on this review, that its security interest can also be found to exist in the oral agreement of the parties which then became memorialized in the promissory note. Plant Reclamation finds this theory available under Nunnemaker Transp. Co. v. United California Bank, supra.

“This court has been unable to find direct authority for the position taken by Plant Reclamation, but the Referee did not pass on this issue and, in view of the opinion of this court expressed here-inabove, no resolution need be made of it.

Conclusion

“For the reasons stated above, the petition of Plant Reclamation is hereby granted, and the Order of the Referee Declaring Lien Invalid, dated April 10, 1973, is hereby reversed. It is so ordered.”

The judgment is affirmed.

      . Webster’s New International Dictionary (2d ed. 1939) lists as synonyms for ‘create’ the words ‘make, build, produce, fashion ; invent, originate.”


author: MULLIGAN, Circuit Judge:

text:
    John J. GALGAY, as Trustee in the Re-organization of R. Hoe & Co., Inc., Plaintiff-Appellant, v. BULLETIN COMPANY, INC., Defendant-Appellee.
    No. 19, Docket 74-1582.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 16, 1974.
    Decided Oct. 16, 1974.

      Gary G. Cooper, New York City (Winthrop, Stimson, Putnam & Roberts, A. Edward Grashof, New York City, of counsel), for plaintiff-appellant.
    Joseph A. Torregrossa, Philadelphia, Pa. (Morgan, Lewis & Boekius, John R. McConnell, Philadelphia, Pa., Bleakley, Platt, Schmidt & Fritz, Frank A. Fritz, Jeffrey S. Cook, New York City, of counsel), for defendant-appellee.
    Before MOORE, MULLIGAN and ADAMS, Circuit Judges.

       Of the Third Circuit Court of Appeals, sitting by designation.

   MULLIGAN, Circuit Judge:

This is an appeal by the plaintiff trustee of a bankrupt company, R. Hoe & Co., Inc. (Hoe), from a judgment entered on March 1, 1974 in the United States District Court for the Southern District of New York, Hon. Lawrence W. Pierce, Judge, granting the motion of the defendant Bulletin Company, Inc. (Bulletin) to dismiss the complaint on the ground that the court lacked in per-sonam jurisdiction over the defendant. Judge Pierce filed a memorandum opinion on February 26, 1974 in which he concluded that Bulletin had not engaged in any purposeful activity in New York and therefore had not transacted business in New York within the meaning of N.Y.C.P.L.R. § 302(a)(1) (McKinney 1972). Judgment affirmed.

I. THE FACTS

Bulletin is a Pennsylvania corporation which publishes the Evening and Sunday Bulletin newspapers in Philadelphia. Hoe is a manufacturer of machinery with its factory located in the Bronx, New York. In 1966, the parties entered into negotiations by telephone and in about a dozen personal meetings, all of which were conducted at the Bulletin office in Philadelphia, for the sale by Hoe and the purchase by Bulletin of certain machinery, which would be manufactured in New York and then shipped to Philadelphia and installed and assembled under Hoe’s supervision in the Bulletin office. The negotiations culminated in a proposal prepared and signed by Hoe in New York, and signed as accepted by Bulletin in Philadelphia on December 15, 1966. Thereafter, Hoe forwarded an unsigned formal contract to Bulletin, which executed, the document in Philadelphia and returned it to New York; there it was signed by Hoe on February 2, 1967. Bulletin paid $1,155,813.00 to Hoe but then claimed the machinery was defective, and so has refused to pay the balance of $22,566.10. This prompted the diversity action below to recover damages for breach of contract. Plaintiff is the trustee in reorganization of Hoe, the debtor in bankruptcy proceedings in the Southern District of New York under Chapter X of the Bankruptcy Act.

II. THE LAW

No claim is made here that the Bulletin is a foreign corporation “doing business” in New York under traditional tests of “fair measure of permanence and continuity,” Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915, 917 (1917). Rather, jurisdiction is sought under the broader provisions of N.Y.C.P.L.R. § 302(a)(1), which permits personal jurisdiction over a non-domiciliary who, in person or through an agent, “transacts any business within the state.” Service of process was made in Philadelphia by a United States deputy marshal pursuant to Rule 4(e), Fed.R.Civ.P.

In Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 457 & n. 5, 261 N.Y.S.2d 8, 18, 209 N.E.2d 68, 75 (1965), cert. denied, Estwing Manufacturing Co. v. Singer, 382 U.S. 905, 86 S.Ct. 241, 15 L.Ed.2d 158 (1966), the New York Court of Appeals clearly indicated that the inquiry to be made in a section 302 case is whether, looking at “the totality of the defendant’s activities within the forum,” purposeful acts have been performed in New York by the foreign corporation in relation to the contract, “albeit preliminary or subsequent to its execution.” While there may be little or no argument with this statement of the rule, each case arising under the statute requires a consideration of each of the defendant’s activities within and without the state, bearing in mind that “although it is their aggregate which will decide the issue of jurisdiction, some activities are more important than others and, therefore, separate evaluation aids analysis.” McLaughlin, Practice Commentaries 7B C.P.L.R. § 302 (McKinney 1972), at 74.

The activities relied upon by the appellant are as follows:

1) Appellant urges that while Bulletin was never present in New York itself, the contract required it to retain an agent to transport the machinery from the Hoe factory in the Bronx to its offices in Philadelphia. Bulletin did engage George R. Hall of Cleveland, Ohio to haul the machinery, and he in turn retained D. F. Bast, Inc., an independent contractor to perform the job. We cannot agree with Bulletin that the actions of Bast in New York cannot be attributed to Bulletin because Bast was an “independent contractor” as distinguished from an agent or employee. It is clear that under the terms of the agreement, Bulletin undertook responsibility for hauling the machinery from the Hoe plant. The legal relationships inter sese Bulletin-Bast and between them and third parties may well depend upon whether Bast was an agent or an independent contractor. However, that is not in issue before us. No matter how its relationship to Bulletin be described, Bast was in New York at the request and for the business purposes of Bulletin and therefore its activities must be attributed to Bulletin. While the New York law on this point is not crystal clear, it would appear that a formal agency relationship is not necessary to impute activity against the defendant where he is being sued by a third party, Elman v. Belson, 32 A.D.2d 422, 302 N.Y.S.2d 961 (2d Dep’t 1969); Legros v. Irving, 77 Misc.2d 497, 354 N.Y.S.2d 47 (Sup.Ct. N.Y. County 1973).

However, assuming that Bast’s presence was the presence of Bulletin, it does not follow that this rises to the level of meaningful or purposeful activity. Hoe had done all the work on the machinery in New York and Hoe was later to assemble the equipment in Philadelphia. Bulletin’s only activity was the cartage of the product from New York pursuant to the terms of the contract drafted by Hoe. The business enterprise was the manufacture, sale, and installation of the equipment; that activity was in essence performed by the New York company. The transportation from New York, while a necessary link, was, in our view, of minor or accidental importance.

2) The appellant also relies on the fact that the contract was executed in New York. The court below, assuming for the purposes of the motion that the contract was in fact executed in New York, did not consider this factor determinative. We agree. As far as purposeful activity is concerned, it is much more meaningful that Hoe’s representatives came to Philadelphia to negotiate the contract on numerous occasions. Liquid Carriers Corp. v. American Marine Corp., 375 F.2d 951, 955-956 (2d Cir. 1967). The fact that the formal contract was sent unsigned to Philadelphia, so that the last signature was affixed in New York, is a purely fortuitous circumstance. Technically, in conflicts cases this would make New York the place of contract execution. However, if we are to determine if this constitutes a purposeful business activity in New York, it must be noted that here the execution in New York was performed by Hoe and not Bulletin; therefore, it cannot be said that the defendant transacted business in New York. Green & White Construction Co. v. Columbus Asphalt Corp., 293 F.Supp. 279, 280 (S.D.N.Y.1968); Standard Wine & Liquor Co. v. Bombay Spirits Co., 20 N.Y.2d 13, 17, 281 N.Y.S.2d 299, 301, 228 N.E.2d 367, 369 (1967); McLaughlin, supra, at 78. Even in American Eutectic Welding Alloys Sales Co. v. Dytron Alloys Corp., 439 F.2d 428 (2d Cir. 1971), where the court sustained jurisdiction in a case in which the defendants physically executed the contract in New York, Judge Feinberg took pains to point out that “[t]he level of activity in New York by these defendants far exceeded the bare execution of employment contracts in New York,” Id. at 432.

Therefore, we conclude that the contract-execution point also is of no avail to appellant.

3) Appellant further urges that since the shipment was f. o. b. New York and the risk of loss of the machinery was on Bulletin while the goods were in transit, there was a “purposeful activity” in the state. Judge Pierce found this element “of little consequence since it was the seller plaintiff, a New York domiciliary, who chose the f. o. b. point.” Appellant relies principally upon the prior holding of this court in Agrashell, Inc. v. Bernard Sirotta Co., 344 F.2d 583, 588-589 (2d Cir. 1965), that an f. o. b. New York sale placing the risk of loss on the out-of-state buyer provides a reasonably clear-cut basis for amenability to suit in New York. While appellee correctly observes that the f. o. b.- shipments in Agrashell involved ten truckloads over an 18-month period, as distinguished from what appears to be a single shipment here of machinery in one transaction, there are other significant distinctions. In Agrashell, Judge Waterman was careful to note at the outset of his discussion of the problem:

. in the absence of authoritative pronouncements by the New York courts indicating a narrower legislative intention, we shall assume that Section 302 is as broad as the Federal Constitution would permit it to be.

Id. at 587. However, shortly after the Agrashell decision, Judge Fuld’s opinion in Longines, supra, made it quite clear that CPLR § 302 does not confer the full complement of personal jurisdiction constitutionally permitted. Accord, A. Mill-ner Co. v. Noudar, Lda., 24 A.D.2d 326, 329, 266 N.Y.S.2d 289, 293 (1st Dep’t 1966).

It is also instructive that a later New York case has expressly decided that the shipping of goods to an out-of-state defendant by a New York plaintiff via common carrier f. o. b. New York was not enough to confer 302(a)(1) jurisdiction. M. Katz & Son Billiard Products, Inc. v. G. Correale & Sons, Inc., 26 A.D.2d 52, 270 N.Y.S.2d 672 (1st Dep’t 1966), aff’d, 20 N.Y.2d 903, 285 N.Y.S.2d 871, 232 N.E.2d 864 (1967). That case was relied upon on similar facts by Judge Pollack in Total Sound, Inc. v. Universal Record Distributing Corp., 286 F.Supp. 123 (S.D.N.Y.1968).

We conclude that in light of subsequent New York case law the f. o. b. point of shipment position espoused in Agrashell is not binding upon us. We must be guided in the construction of the New York jurisdictional statute by the interpretations of the New York courts. American Eutectic Welding, supra, 439 F.2d at 431-432.

4) Appellant’s final contention is without merit. The agreement here provided that the contract was to be governed and interpreted in accordance with New York law, and appellant argues that this provision makes the defendant amenable to suit in New York. It is well established that this choice-of-law provision does not have jurisdictional implications. This was specifically held in Agrashell, supra, 344 F.2d at 588. See McLaughlin, supra, at 82-83. Appellant’s reliance upon National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 315-316, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964) is misplaced. Although the provision of the contract there involved did contain a choice-of-law clause, it further designated a New York resident as an agent for the service of process.

We see no merit in appellant’s other contentions. We conclude in assessing the totality of Bulletin’s activities within the forum that there is no sufficient basis to find that purposeful conduct occurred within the statute and the cases construing it. Bulletin is a foreign corporation with no property, officers, or offices in New York. Its only contact here was the fleeting presence of the trucking subcontractor which was ancillary and peripheral to the business which was transacted.

Affirmed.

      . Where the action is by the agent or independent contractor against tiie non-resident principal, the rule is apparently contra, i. e. the New York activities of the agent will not be attributed to the non-domiciliary principal. Haar v. Armendaris Corp., 31 N.Y.2d 1040, 342 N.Y.S.2d 70, 294 N.E.2d 855 (1973). The dichotomy is noted by Dean McLaughlin in his Practice Commentary, supra, 1973-1974 Supp. at 10. Conceptually, it would not seem to be a supportable distinction and this is so noted by Dean McLaughlin.

      . But even in a conflicts case, the mere fact that the contract was executed in New York would not be enough per se to make New York law controlling. See Auten v. Auten, 308 N.Y. 155, 124 N.E.2d 99 (1954).
      The distinction between determining the place of a tort for conflicts purposes, and determining the locus for purposes of interpreting a jurisdictional statute like 302, was drawn in Longines, supra, 15 N.Y.2d at 463, 261 N.Y.S.2d 8, 209 N.E.2d 68, and earlier in Hanson v. Denckla, 357 U.S. 235, 253-254, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). See part 4 of this opinion, infra. Similarly, there is a distinction between a contract’s place of execution and the location of the jurisdictional forum.


text:
    Melvin MILLER, Appellant, v. Don MILLER, Individually and as Administrator of the Children’s Services Division of the State of Oregon, et al., Ap-pellees.
    No. 74-1955.
    United States Court of Appeals, Ninth Circuit.
    Oct. 15, 1974.
    Paul R. Meyer (argued), of Kobin & Meyer, Portland, Ore., for appellant.
    W. Michael Gillette, Solicitor Gen. (argued), for appellees.
    Before ELY and HUFSTEDLER, Circuit Judges, and TAYLOR, District Judge.

       Honorable Fred M. Taylor, Senior United States District Judge, Boise, Idaho, sitting by designation.

   DECLARATORY JUDGMENT

PER CURIAM:

This appeal challenges the validity of an Oregon statute, ORS 109.326(1). In effect, the statute permits the adoption of a child born out of wedlock upon the consent of the natural mother, without notice to, or the consent of, the natural father.

It is undisputed that the appellant is the natural father of a child born out of wedlock in July 1972. Following the child’s birth, both parents shared custody of the child for a brief period. In late 1973,' however, the mother, then in sole custody, consented to the adoption of the child without in any way consulting or attempting to secure the cooperation or consent of the natural father. The adoption has not yet been formally completed, and certain state action in connection with such a proposed adoption is required. The natural father sued in •the District Court, resting his claim for the District Court’s jurisdiction on 42 U.S.C. § 1983 and 28 U.S.C. § 1343. He attacked the constitutionality of the Oregon statute which, in situations such as that involved in the attempted adoption in question, provides, inter alia, that “the father of the child shall be disregarded just as if he were dead. . . .” Denied relief in the District Court, the appellant filed his appeal.

At the oral argument of the cause in this court, conducted on October 8, 1974, the Solicitor General of the State of Oregon conceded, in effect, that the state statute in question was out of harmony with the Federal Constitution. Pursuant to that concession, and upon the authority of Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), and Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962), it is hereby adjudged and declared that the application of the statute in question would infringe upon the Federal constitutional rights of the appellant and all natural fathers similarly situated. We further declare that the said statute is constitutionally null and void and, hence, unenforceable. From the attitude and forthrightness of the Oregon Solicitor General who appeared before us, we have no reason to believe that Oregon, following our declaration, will undertake to enforce ORS 109.326 (l). For that reason, we decline to issue an injunction against Oregon authorities.

Upon remand, the District Court may hold the cause in abeyance for a reasonable time so that if, contrary to our expectations, the necessity for an in-

junction should arise in order to implement this judgment, the District Court may issue such an injunction.

This Judgment shall issue forthwith, and no Petition for Rehearing will be entertained. Rule 2, Fed.R.App.P.

So ordered.

      . One Oregon court has already noted the apparent conflict between the statute and Stanley v. Illinois, supra. Franklin v. Biggs, 513 P.2d 1216, 1218 n. 3 (Or.Ct.App.1973).


author: PER CURIAM.

text:
    Don F. WOOD, Appellant, v. SUPERINTENDENT, CAROLINA CORRECTIONAL UNIT, Appellee.
    No. 72-2513.
    United States Court of Appeals, Fourth Circuit.
    Argued April 1, 1974.
    Decided Oct. 3, 1974.

      Sy DuBow, Richmond, Va. [Court-appointed counsel] for appellant.
    William A. Carter, III, Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen. of Virginia, on brief), for appellee.
    Before BOREMAN, Senior Circuit Judge, and CRAVEN and WIDENER, Circuit Judges.
   PER CURIAM.

In this habeas corpus petition, filed pursuant to 28 U.S.C. § 2254, petitioner Wood alleges that his July 14, 1970 state court trial for petit larceny and his September 14, 1970 trial in the same court for credit card fraud were tainted by prejudicial pre-trial publicity, and that he was furnished ineffective assistance of counsel in both of these trials. We find no merit to Wood’s allegations and affirm dismissal of the petition.

By his charge of pre-trial publicity, Wood implies the court erred in not granting a change of venue. The state court, at a plenary hearing on August 17, 1971, found the newspaper articles in question provided nothing more than general courthouse information, and that the last article published before the July 14, 1970 trial was on May 16, 1970, almost two full months before trial. The only article apparently published between the July and September trials was on July 15th, which stated only that Wood had been found guilty and sentenced in his trial of the previous day. The jurors for both trials were asked as a group whether they had any prior knowledge of the facts, and none responded affirmatively. Wood has not shown any prejudice resulting from the publicity, or that any juror was influenced, and we accordingly find that there was no constitutional violation. Wansley v. Slayton, 487 F.2d 90 (4th Cir. 1973).

The attorneys who had represented Wood at the various trials were all present at the state plenary proceeding when the court investigated the charge of ineffective counsel. Their representation was found proper, and the record discloses no inadequacy on the part of his court-appointed counsel. Accordingly, we find no merit to this claim. See Bennett v. Maryland, 425 F.2d 181 (4th Cir. 1970).

The judgment of the district court is

Affirmed.


text:
    Don F. WOOD, Appellant, v. SUPERINTENDENT, CAROLINA CORRECTIONAL UNIT, Appellee.
    No. 73-1241.
    United States Court of Appeals, Fourth Circuit.
    Argued April 1, 1974.
    Decided Oct. 3, 1974.

      Sy DuBow, Richmond, Va. [Court-appointed counsel] for Appellant.
    William A. Carter, III, Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen. of Virginia, on brief), for appellee.
    Before BOREMAN, Senior Circuit Judge, and CRAVEN and WIDENER, Circuit Judges.
   PER CURIAM:

Petitioner Wood raised two issues in his habeas corpus petition brought under 28 U.S.C. § 2254: (lj whether Virginia Code § 19.1-293, relating to confinement of persons convicted for petit larceny who have been previously sentenced for the same offense, is unconstitutional, and (2) whether the increased sentences for subsequent petit larceny convictions are a collateral result from the initial and second convictions, which were without counsel, and thus are in violation of Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).

The district court refused to consider whether Va.Code § 19.1-293 was constitutional on account of Wood’s failure to exhaust his state remedy as required by 28 U.S.C. § 2254(b). Exhaustion was not required, however, for the Argersinger issue, since the Virginia Supreme Court had held in Potts v. Slayton, 213 Va. 432, 192 S.E.2d 780 (1972), that Argersinger was not retroactive and Wood’s pursual of state habeas relief would thus have been fruitless. The district court then held that Argersinger was retroactive under this court’s holding in Marston v. Oliver, 485 F.2d 705 (4th Cir. 1973), but, plausibly, that it did not apply to this case since the direct and collateral results of the. counselless convictions complained of did not result in imprisonment.

Since the district court judgment, which issued on February 20, 1973, the Supreme Court has held in Berry v. City of Cincinnati, 414 U.S. 29, 94 S.Ct. 193, 38 L.Ed.2d 187 (1973), that Ar-gersinger does apply retroactively to state court convictions if federal court jurisdiction is otherwise present. The Virginia case of Potts v. Slayton, supra, which had previously held to the contrary, has thus been effectively overruled, and there is no indication Virginia will not follow the Berry case. In view of this, and particularly since state remedies have not been exhausted for the other issue raised, and the case must be remanded in all events, we think the state courts should be given the initial opportunity to pass on the applicability of Argersinger to this case. Wright v. Maryland Penitentiary, 429 F.2d 1101, 1104-1105 (4th Cir. 1970); see Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).

Accordingly, since the state remedy for neither issue presented here has been exhausted under 28 U.S.C. § 2254 (b), we vacated the judgment of the district court with directions to dismiss the petition without prejudice for failure to exhaust state remedies.

Vacated and remanded.