author: DUNIWAY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joel VITAL-PADILLA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Simon CONTRERAS-CUEVAS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Rene Felix LOPEZ, Defendant-Appellant.
    Nos. 73-3013 to 73-3015.
    United States Court of Appeals, Ninth Circuit.
    July 12, 1974.

      Michael S. Evans, San Diego, Cal., for Joel Vital-Padilla.
    William Duerksen, San Diego, Cal., for Simon Contreras-Cuevas.
    J. A. Crawford, San Diego, Cal., for Rene Felix Lopez.
    Richard Strauss, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.
    Before DUNIWAY and CHOY, Circuit Judges, and TAYLOR, District Judge.

       The Honorable Fred M. Taylor, United States District Judge for the District of Idaho, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

Appellants were convicted in a jury trial of conspiracy to smuggle and transport aliens, and of smuggling and transporting aliens not lawfully entitled to enter or to reside in the United States.

Two cars traveling in tandem on De-Luz Canyon Road about sixty miles from the Mexican-U.S. border were stopped by border patrol agents and the aliens were found in the cars. We conclude that the stop of both cars was based upon a founded suspicion. Absent a founded suspicion the stop would have been illegal under Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 and United States v. Pel-tier, 9 Cir., 1974, in banc, 500 F.2d 985. We also conclude that the stop produced probable cause to arrest all three defendants.

1. Founded Suspicion.

Stated in a light most favorable to the government, the trial judge having found that there was a founded suspicion justifying the stop, these are the facts.

On May 4, 1973, two Border Patrol Agents were stationed on an abandoned side road 200 feet back from and forty feet above and overlooking DeLuz Canyon Road. That road leaves Highway 395, a main road from the south, near Fallbrook, which is four or five miles to the west of the highway and about fourteen miles to the south and west of the point where the officers were, and comes out on Highway 71, about five miles to the north of the same point. The road by-passes a fixed immigration checkpoint at Temecula on Highway 395. The first few miles of the road out of Fallbrook are paved. Thereafter it becomes a dirt road. The dirt portion is a single lane road, winding and dusty, washed out by rain, rutted and with chuckholes, and at some points so narrow that cars going in opposite directions cannot pass. Going north from about eight miles north of Fallbrook there are no houses or ranches on the road. The officers’ lookout was about sixty air miles and eighty road miles from the Mexican border. Because the road by-passes the checkpoint, it is frequently used by smugglers. It was the officers’ intention to stop every car coming from the direction of Fallbrook, except possibly cars with drivers known to them to be local people.

The officers’ view of the road extended between one-half mile and a mile, to a point where it disappeared around a curve. The hour was 7:50 p. m., the sun had set, and it was dusk where the officers were and getting “quite dark” in the canyon. At that time, the officers saw a cloud of dust approaching around the curve. As it came nearer, they could see two cars approaching — a red Ford Mustang followed by a black Toyota Land Cruiser some thirty or forty yards behind. Neither vehicle had its lights on. Both were traveling at about forty miles an hour — about double what the officers thought to be a safe speed on that road. They also considered the close proximity of the cars to each other to be dangerous. They suspected that the cars were engaged in smuggling, using the “lead car-load car” procedure . that we have discussed in United States v. Larios-Montes, 9 Cir., 1974, 500 F.2d 941. They testified that this procedure is frequently used on the road.

Agent MeAda drove his car behind the Mustang and turned on his red light. The Mustang speeded up a little, then stopped after about one-fourth mile. The driver was Contreras, and Vital was a passenger. Both produced papers that convinced MeAda that they were immigrants lawfully in this country. Both disclaimed any connection with the Toyota; both denied that they knew that it was following them. A search of the car and their belongings produced nothing incriminating.

Meanwhile, Agent Walters had made a similar stop of the Toyota. Lopez was the driver. One alien sat next to him and five more were in a space behind the seat. All except Lopez were unlawfully in this country. Lopez is a United States citizen. Walters arrested them all. Nothing that Walters then learned in any way directly incriminated Contreras or Vital. He told MeAda, by radio, that he had found six “illegal” aliens in the Toyota. MeAda then arrested Contreras and Vital.

While we continue to be of the opinion that there is nothing suspicious about two cars going at the same ordinary speed, and at a safe distance apart, upon a highway late at night (see United States v. Laurios-Montes, supra), we find the facts here quite different. Here was a remote, little traveled, rough, narrow winding road, with two cars traveling at a high speed and too close together, in the dark and with no lights on. The road was known to be used by smugglers, and by hardly anyone else. One of the officers testified that about the only other cars he had seen on the road were those of tourists who were lost. Surely these facts, plus knowledge of the “lead car-load car” procedure and its use on this road would create in the minds of the officers a well-founded suspicion that illegal activity was afoot. We conclude that the stop of both cars was justified.

It is no answer to say that it was the officers’ intention to stop every car that came along, regardless of other circumstances. The validity of stops and searches and arrests is determined by an objective, not subjective, standard. Terry v. Ohio, 1968, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889; United States v. Jit Sun Loo, 9 Cir., 1973, 478 F.2d 401, 404; United States v. Mallides, 9 Cir., 1973, 473 F.2d 859, 861. Thus, even if officers erroneously rely upon a specific doctrine or presumption as entitling them to make a search or arrest, their action will still be sustained if it was objectively justifiable on other grounds. Smith v. United States, 9 Cir., 1968, 402 F.2d 771, 772; White v. United States, 8 Cir., 1971, 448 F.2d 250, 254. Accordingly, even though the officers improperly relied upon their supposed authority to stop every vehicle on the road, see United States v. Brignoni-Ponce, 9 Cir., 1974, in banc, 499 F.2d 1109 they had facts within their knowledge amounting to a founded suspicion such as to make these particular stops constitutional and the stops must be upheld.

2. Probable Cause.

The arrest of Lopez was clearly valid. The stop turned up ample evidence against him without a search, and provided probable cause for his arrest.

In the cases of Contreras and Vital, however, the situation is different. The lead car-load car procedure, in conjunction with the other facts known to the officers before the stop, did give rise to a founded suspicion, but they did not supply probable cause. The stops produced no additional specific knowledge about Contreras and Vital. The discovery of the aliens in the load car, however, fully confirmed McAda’s founded suspicions. He then knew that a crime had been committed, and he had reasonable cause to believe that Contreras and Vital were engaged, along with Lopez, in committing it. Cf. McNeary v. Stone, 9 Cir., 1973, 482 F.2d 804, 807; United States v. McDowell, 9 Cir., 1973, 475 F.2d 1037, 1039-1040.

The aliens and the defendants were taken to the Temecula checkpoint. There the agents interviewed the aliens and were told by them that a person unknown guided them across the border and brought them, in a white car, to a grove of trees where they hid for half the night and a day. Then both the red Mustang and the black Toyota arrived. They were put in the Toyota and the two cars started out together, the Toyota following the Mustang. They proceeded in this manner until they were caught. After the _agents received this, information, Vital’s wallet was searched and a paper was found showing that he owned the Toyota. The search was a valid one, United States v. Robinson, 1973, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, and would have been valid without the foregoing additional information, which merely strengthened the probable cause that the officers already had.

3. Sufficiency of the Evidence.

At the trial, the government produced one of the “illegal” aliens, the one who sat in the seat with Lopez. On direct, he did not testify about the arrival of the Mustang — only that of the Toyota — • nor did he give any testimony to the effect that the two cars left together, the Toyota following the Mustang. On the contrary, he mentioned only the Toyota and did not mention the Mustang at all. On cross-examination by counsel for Vital, the witness denied that he had ever seen either the Mustang or Vital or Contreras until after the arrests. He didn’t even see a cloud of dust ahead. It was then stipulated that each of the other aliens, if called to the stand, would give testimony “identical in all respects” to that of the testifying alien. Vital argues that the evidence is insufficient to sustain his conviction. Contreras does not.

In spite of the failure of the aliens’ testimony to tie Vital or Contreras more directly to the offenses, we conclude that the evidence is sufficient, although no more than sufficient, to sustain the conviction of both of them. The lead car-load car procedure and the facts leading to the arrest were fully testified to by the agents. When there is added the facts that Vital owned the Toyota and that Contreras was driving him in the Mustang, the jury, which was fully instructed that it must find them guilty beyond a reasonable doubt, could reasonably infer that both were a part of a conspiracy to transport the aliens and that both were participating in the actual transportation.

Affirmed.

      . It was not only reasonable to arrest Vital and Contreras but the officer really had little choice. The proper course after their apprehension in the middle of nowhere was to fully investigate into the crime before deciding whether anyone should be released. Yet it would be unreasonable to require two officers to interrogate nine men in the open; they needed the security of the border patrol station. See United States v. McDowell, supra.

      . We note that in any event Contreras has no standing to attack the search of Vital. See Jones v. United States, 1960, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697; Brown v. United States, 1973, 411 U.S. 223, 229, 93 S.Ct. 1565, 36 L.Ed.2d 208; Alderman v. United States, 1969, 394 U.S. 165, 171-176, 89 S.Ct. 961, 22 L.Ed.2d 176; United States v. Carrion, 9 Cir., 1972, 463 F.2d 704, 706; Diaz-Rosendo v. United States, 9 Cir., 1966, in banc. 357 F.2d 124, 130.


source: Caselaw Access Project

author: JAMESON, District Judge:

license: Public Domain

text:
    Linda F. WILSON, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 835, Docket 73-2820.
    United States Court of Appeals, Second Circuit.
    Argued April 22, 1974.
    Decided Aug. 6, 1974.

      John H. Doyle, III, New York City (Anderson, Russell & Kill, P.C., New York City, on the brief, Eugene R. Anderson, and Howard N. Beldock, New York City, of counsel), for petitioner-appellant.
    Louis A. Bradbury, Atty., Tax Div., Dept, of Justice, Washington, D.C. (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, and Gary R. Allen, Attys., Tax Div., on the brief), for respondent-appellee.
    Before LUMBARD and HAYS, Circuit Judges, and JAMESON, District Judge.

       Senior District Judge of the District of Montana, sitting by designation.

   JAMESON, District Judge:

Petitioner-appellant, Linda F. Wilson, has appealed from (1) a decision of the Tax Court holding that there were tax deficiencies in the federal income tax of petitioner and William R. (Bob) Wilson for the years 1966 and 1967 in the amounts of $10,290.03 and $8,636.59, respectively ; and (2) from an order denying petitioner’s motions to vacate the decision and reopen the proceedings and her motion to substitute counsel.

Joint returns filed on behalf of Bob and Linda Wilson as husband and wife show that Bob’s gross earnings as a news commentator were $67,401.69 in 1966 and $42,974.07 in 1967. He also received $1,571.76 and $1,300 from the Army Signal Corps. Linda’s gross earnings as an actress were $3,915.55 in 1966 and $4,769.00 in 1967. Deductions claimed for travel, entertainment, gift and professional expenses in the amounts of $30,312.70 in 1966 and $31,023.79 in 1967 were disallowed, resulting in the deficiencies assessed by the Commissioner.

On November 19, 1970 a petition for redetermination of these deficiencies, bearing the signature of both Bob and Linda, was filed with the Tax Court. Petitioners were represented by Harold Newman, an attorney and certified public accountant, who had also prepared the tax returns. A trial was held on June 14, 1972, and the decision of the Tax Court sustaining the Commissioner’s deficiency determination was entered on April 27, 1973.

On July 25, 1973 Linda presented to the Tax Court her motions (1) to withdraw Newman as counsel and substitute Howard N. Beldock, (2) to reopen the hearing and reconsider the court’s decision, and (3) to vacate the decision. Supporting affidavits and a brief were also submitted. On July 26, 1973 the Tax Court granted petitioner leave to file her motions out of time. On August 20, 1973, in a “Memorandum Sur Order”, the Tax Court denied each of the motions without a hearing. No opposing papers were filed by the Commissioner.

Bob and Linda were married in 1962. In an affidavit in support of her post decision motions, Linda states that she learned in 1971 that Bob was still married to another woman. She then commenced an action for annulment, and a decree of annulment was entered on J an-uary 12, 1973. Newman, the attorney for petitioners in the tax proceedings, represented Bob in the annulment action.

Petitioner alleged and contended in her motions that she should not be adjudged liable for the tax deficiencies because (a) she did not sign the 1966 and 1967 tax returns or authorize another to do so; (b) she was not shown the returns prior to their filing, was not aware of their contents and did not intend the returns to be joint returns; (c) her marriage to Bob was adjudged a nullity on the ground that he had been previously married, and the marriage had not been dissolved; and (d) she was not represented by independent counsel in the original Tax Court proceedings.

The Tax Court held that the motions were untimely and that even if the untimeliness were ignored, there was “persuasive authority for denying Linda’s motions on the merits”. Specifically, the Tax' Court found that (1) Linda’s statements in her affidavit “are, at best, questionable” and contrary to her testimony in the Tax Court proceedings; (2) her contention that Newman did not ■adequately represent her interest is “weak”; and (3) while the annulment decree was entered in January, 1973, she made no effort to seek independent counsel or reopen tjie proceedings until July, 1973. The motions were denied without a hearing, although the Tax Court did consider the contents of the affidavits and the prior proceedings.

The critical issues on this appeal are (1) whether the question of timeliness was resolved in petitioner’s favor when the Tax Court permitted the motions to be filed; (2) whether petitioner in her affidavit has shown “extraordinary circumstances” which justify remand for a hearing; and (3) whether the Tax Court should have considered the effect of Revenue Ruling 67-442, first raised by petitioner on this appeal.

I.

The Tax Court ruled that Linda’s motions were untimely because they were filed 58 days “after the expiration of the thirty day period allowed for timely filing of the motions to vacate and to reopen the proceedings” (citing Rules 19(e) and 19(f) of the Rules of Practice of the United States Tax Court).

Rule 19(e) provided:

“No motion for retrial, further trial, or reconsideration may be filed more than 30 days after the opinion has been served, except by special leave.” (emphasis added.)

Rule 19(f) provided:

“No motion to vacate or revise a decision may be filed more than 30 days after the decision has been entered, except by special leave.” (emphasis added.)

The Tax Court by granting petitioner leave to file the motions out of time brought the motions within the exceptions to the 30-day limitation. Moreover, in ruling on the motions on the merits the Tax Court considered the affidavits filed in support of the motions. Under these circumstances reliance on Rules 19(e) and 19(f) did not afford an adequate basis for denying the motions without a hearing. -

II.

Having authorized the filing of the motions, the Tax Court was obliged to consider all relevant facts and law and to exercise its sound discretion in either granting or denying the motions. See Sisto Financial Corp. v. Commissioner, 149 F.2d 268, 270 (2 Cir. 1945); Weiller v. Commissioner, 64 F.2d 480, 482 (2 Cir. 1933). As indicated, the Tax Court, considering the contents of petitioner’s affidavits and the record of the tax proceedings, denied the motions without a hearing.

This court on review may reverse a discretionary denial by the Tax Court of post-opinion motions only if there are shown to be “extraordinary circumstances” justifying reversal. Pepi, Inc. v. C.I.R., 448 F.2d 141, 148 (2 Cir. 1971). Petitioner contends that she has shown “extraordinary circumstances” in that (1) she had no intent to file joint tax returns with Bob in 1966 or 1967; (2) since Newman was representing Bob in the annulment litigation at the same time he represented Bob and Linda in the tax matter, a conflict of interest existed which resulted in Newman’s failure to properly represent Linda’s interests during the tax proceedings; and (3) her marriage was annulled after the Tax Court hearing was completed.

With regard to Linda’s first contention, we agree with the Tax Court that the statements contained in Linda’s affidavit concerning her intent to file joint tax returns with Bob in 1966 and 1967 “are, at best questionable”. Even though she did not sign the joint return, she did not file a separate return; her independent income was included in the joint return; she gave her husband material for use in claiming substantial deductions; and she joined in the petition to the Tax Court filed on November 19, 1970. At the hearing she testified in detail with respect to deductions claimed in the joint return. She was obviously a willing witness for petitioners and somewhat antagonistic toward counsel for the Commissioner.

There is apparently merit, however, in Linda’s second contention that Newman did not properly represent her interests in the tax proceedings. In her affidavits in support of the motions, Linda stated that she realized at the time of the tax hearing that she should have independent counsel. While this appears inconsistent with her obvious cooperation with Newman in presenting petitioners’ case, it is significant that at the outset Linda volunteered the statement: “There is one thing I want to say: At the time we filed in ’66 and ’67 I understood I was married to Bob Wilson. There is litigation in court as to the legality of the marriage.” Newman commented that he did not think that was “relevant”.

Linda’s statement to the court would indicate that she was concerned with the legality of her marriage as it related to the tax proceedings. It seems probable that independent counsel would have advised Linda as to the effect of Revenue Ruling 67-442 and would have apprised the court of the annulment proceedings and the probable effect of the ruling. For Newman to have raised this issue would have been detrimental to his client Bob. This obvious conflict of interest and lack of independent counsel may explain why the annulment proceedings and its possible effects were not brought to the attention of the Tax Court prior to its decision on April 27, 1973.

In light of the annulment and Revenue Ruling 67-442, Newman’s conflict of interest and Linda’s lack of independent counsel present a serious issue. Whether Linda had a reasonable excuse for failing to seek advice from an independent counsel earlier is a question of fact. We recognize that it is the province of the Tax Court to decide questions of fact. Home Co. v. C.I.R., 212 F.2d 637, 639 (10 Cir. 1954). Tax Court determinations of factual issues may only be overturned for lack of substantial evidence or if they are “clearly erroneous”. Id. “If a substantial basis is lacking the appellate court may then indulge in making its own conclusions or it may remand the case to the Tax Court for further appropriate proceedings.” Commissioner of Internal Revenue v. Scottish American Co., 323 U.S. 119, 124, 65 S.Ct. 169, 171, 89 L.Ed. 113 (1944).

Except for the petitioner’s self-serving statement in her affidavit, the Tax Court had no direct evidence before it regarding petitioner’s reasons for failing to consult independent counsel. The record of the Tax Court trial does not present a sufficient basis to draw a conclusion either way. The petitioner may at a hearing present further evidence to explain her failure to seek the advice of independent counsel and raise the annulment issue prior to the Tax Court’s decision. We conclude, therefore, that justice requires (see 26 U.S. C.A. § 7482(c)(1)) that she be given an opportunity to do so and that “extraordinary circumstances” justify a remand to the Tax Court for an evidentiary hearing.

III.

Finally, the petitioner raises for the first time on appeal a legal defense to the Tax Court’s decision finding her and Bob jointly and severally liable for the tax deficiencies. She contends that Revenue Ruling 67-442 requires that the returns be treated as individual rather than joint and that in the “interests of justice”, the applicability of the ruling should be considered by the Tax Court.

As a general rule a “reviewing court should pass by, without decision, questions which were not urged” before the Tax Court; but the cases stating this principle “do not announce an inflexible practice, as indeed they could not without doing violence to the statutes which give to Circuit Courts of Appeal reviewing decisions of the [Tax Court] the power to modify, reverse or remand decisions not in accordance with law ‘as justice may require.’ ” Hormel v. Helvering, 312 U.S. 552, 556-557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941).

We conclude that the issue with respect to the applicability of Revenue Ruling 67-442 should be resolved in the “interests of justice”. This involves factual as well as legal determinations which should be made in the first instance by the Tax Court. See Road Materials, Inc. v. C.I.R., 407 F.2d 1121, 1125-1126 (4 Cir. 1969).

Reversed and remanded for further proceedings consistent with this opinion.

      . Rules 19(e) and 19(f) have now been incorporated as Rules 161 and 162 respectively in the new Rules of Practice and Procedure of the United States Tax Court, effective January 1, 1974.

      . The motions were filed within 90 days and before the decision of the Tax Court became final under Section 7481 of the 1954 Code. In this respect McCarthy v. Commissioner, 139 F.2d 20 (7 Cir. 1943), relied upon by the Tax Court, is distinguishable.

      . Under Revenue Ruling 67-442, “. where a state court, in a proceeding in which there is personal jurisdiction or jurisdiction of the subject matter of the action, declares a prior divorce to be invalid, the [Internal Revenue] Service will usually follow the later court decision rather than the [prior] divorce decree for Federal income tax purposes . . .”. In this regard the Service “will not follow” two decisions of this court—Estate of Borax v. Commissioner of Internal Revenue, 349 F.2d 666 (1965) cert. denied, 383 U.S. 935, 86 S.Ct. 1064, 15 L.Ed.2d 852 (1966), and Wondsel v. Commissioner of Internal Revenue, 350 F.2d 339 (1965), cert. denied 383 U.S. 935, 86 S.Ct. 1064, 15 L.Ed.2d 852 (1966).


author: JOHN R. BROWN, Chief Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Alexander ROBBINS, Defendant-Appellant.
    No. 74-1007.
    United States Court of Appeals, Fifth Circuit.
    Sept. 20, 1974.

      James J. Hogan, Miami Beach, Fla., Richard M. Gale, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., William R. Northcutt, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before BROWN, Chief Judge, and RIVES and DYER, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

Defendant Robbins, a practicing medical physician, was convicted for illegally dispensing Tuinal capsules in violation of 21 U.S.C. § 841(a). On appeal defendant argues that he was denied his Sixth Amendment right to a trial before an impartial jury. One juror, defendant points out, failed to reveal on voir dire —what she later revealed to the other jurors — that her daughter had suffered a serious illness due to the use of prescription diet pills. Concluding that the impartiality of the jury was not so impaired as to require an interference with its independence, we affirm.

Defendant, Doctor Alexander Robbins, was charged with six counts of knowingly and intentionally dispensing in an unauthorized manner controlled substances in violation of 21 U.S.C. § 841(a). Counts I, II, IV, and V charged defendant with illegally dispensing Tuinal capsules, Count III with illegally dispensing Percodan capsules, and Count VI with illegally dispensing Dexedrine capsules.

A jury found the defendant guilty as to Count II and not guilty as to the other five counts. Defendant’s sole allegation on appeal is that he was denied his right to a fair trial by an impartial jury because one juror displayed a bias against the cause of the defendant — a bias that she wrongfully failed to reveal during voir dire. Defendant asserts that had this bias been revealed, he would have exercised a peremptory challenge against the juror.

The facts on which defendant bases his appeal did not come to light until after the jury rendered its verdict. Aft-, er the trial, two jurors, Messrs. Adams and Herder, approached defense counsel and registered their concern about statements made in the jury room by juror Ms. Landesman that her daughter was hospitalized because of the use of prescription diet pills.

The apparent disparity between juror Landesman’s responses in voir dire and her statements in the jury room led defense counsel to file an application to interview jurors. A special hearing was held at which Jurors Adams, Herder, and Landesman testified. At the conclusion of the hearing the District Judge denied defendant permission to interview the other jurors, motion for new trial was later denied, and a final sentence was entered including probation.

We affirm the actions of the District Court. In doing so we recognize the need to consider and balance two important interests, both appearing to be at odds with one another in this fact situation. First is the need on one hand to furnish the defendant with an impartial jury to adjudicate on the evidence as opposed to personal biases or preconceived notions, Rubenstein v. United States, 10 Cir., 1955, 227 F.2d 638, 642, the second is the need, on the other hand, to preserve the independence of the jury — to insure that jury deliberations will be unfettered by fears of constant scrutiny, Rubenstein at p. 643, supra. With these thoughts in mind we proceed with an examination of the facts before us.

Voir Dire — To Tell The Truth

During the voir dire of jurors, Juror Landesman by silence acquiesced in negative answers to the following questions relative to the case to be tried: (1) whether any juror would be unable to be fair or impartial, (2) whether any juror would be slanted for or against the Government or the defendant, (3) whether any juror’s close friends or relatives had problems with the type of substances listed in the indictment or other narcotics, (4) whether any juror had had bad experiences with doctors, and (5) whether any juror had been prescribed dexed-rine or dexumil which is sometimes used as a diet pill. Questions (3) and (4) are the critical ones here.

At the post-trial special hearing, Juror Landesman denied that she misstated the facts during voir dire. She insisted that she had answered the questions truthfully according to her understanding, was not prejudiced against the defendant or the medical profession, and in fact respected the medical profession. To cap it all she said she had listened carefully to all the evidence and based her judgment on that alone. Carpintero v. United States, 1968, 1 Cir., 398 F.2d 488, 490.

In addition, she stated that she understood the questions concerning the drug substances to mean those listed in the indictment. The diet pills her daughter took apparently did not contain any of those substances. We understand readily why the District Judge accepted Juror Landesman’s testimony as to her reasons for answering the voir dire questions as she did. In fact, both the defendant and the prosecution agree that her voir dire answering attitude was one of openness and candor.

Behind Closed Doors

While Juror Landesman’s voir dire testimony is a matter of record and is thus not in dispute, what went on behind the closed doors of the jury room is. It is not disputed that during the jury deliberations Juror Landesman revealed that she had a daughter who had had infectious hepatitis apparently because of prescription diet pills and a severe diet. Just how Juror Landesman made these revelations is in dispute and appears in fact to be the recollected word of one juror pitted against another.

As the post-trial hearing Juror Adams stated that although he was unable to recall her exact words, Juror Landesman seemed to be biased against the medical profession and had stated that she had in fact lied during voir dire. But Adams was clear that Juror Landesman never referred to the substances listed in the indictment or indicated any bias towards the defendant. Juror Herder recalled Juror Landesman as stating in almost a boasting way that on voir dire she had tricked and lied to be a member of .the jury. His understanding was that Juror Landesman’s daughter had an addiction problem.

Juror Landesman, on the other hand, denied ever saying that she lied, that instead another juror stated that Ms. Landesman lied after she talked about her daughter. She admitted that her revelation about her daughter was emotional but that she in no way connected it with the offenses for which the defendant was charged.

With the testimony in this shape the trial judge declined to order the appearance of all or most of the other jurors. Although the jurors’ testimony is conflicting as to which juror spoke what words during this part of the deliberations, it is clear that the atmosphere was one of high emotions, due in part to the active participation of all twelve jurors.

On these facts — or more accurately the lack of certainty of the facts —then, we must determine whether Juror Landesman’s conduct denied defendant a fair and impartial jury or whether .her conduct falls under the protection of freedom of deliberation in the jury room. We hold that defendant received a fair and impartial jury trial.

In reaching this conclusion, we begin with the understanding that ruling on suggestions of impartiality of the jury is within the discretion of the trial judge, and an abuse of that discretion must be clear. Irvin v. Dowd, 1961, 366 U.S. 717, 723, 6 L.Ed.2d 751, 756, 81 S.Ct. 1639; Spies v. Illinois, 1887, 123 U.S. 131, 179, 8 S.Ct. 21, 22, 31 L.Ed. 80, 90.

When the matter of possible jury bias arose, the trial judge conducted a post-trial hearing on the matter. A part of that hearing is the presumption that the jury is impartial and unbiased, so it was incumbent on defendant to prove otherwise. Beck v. Washington, 1962, 369 U.S. 541, 558, 82 S.Ct. 955, 8 L.Ed.2d 98; United States v. Johnson, 1946, 327 U.S. 106, 112, 66 S.Ct. 464, 90 L.Ed. 562, 566; United States v. Nadaline, 5 Cir., 1973, 471 F.2d 340, 344; United States v. Cashio, 5 Cir., 1970, 420 F.2d 1132, 1136; Carpintero v. United States, 1 Cir., 1968, 398 F.2d 488, 490; Fabian v. United States, 8 Cir., 1966, 358 F.2d 187, 191, cert. den., 385 U.S. 821, 87 S.Ct. 46, 17 L.Ed.2d 58; Brown v. United States, 10 Cir., 1966, 356 F.2d 230, 233.

In the face of unequivocal testimony by Ms. Landesman that she felt she was unbiased and had judged the defendant solely on the evidence presented in Court, and her explanation that during voir dire she in no way connected in her mind or responses her daughter’s experience with diet pills with any of the questions asked, the trial court was entitled to credit these assertions.

Although Jurors Herder and Adams both testified that Juror Landesman said she lied, other aspects of their testimony warranted the Judge in impliedly finding the contrary, especially in view of high emotions in the jury room.

In trying to evaluate this problem the Judge could, and probably did, consider the fact that the jury acquitting the defendant on five of the six counts, convicted him only on the count for illegally dispensing Tuinal capsules (commonly used as sleeping pills or depressants). And Juror Landesman’s concern came from diet pills as to which defendant was acquitted.

Under these circumstances the District Judge could reasonably conclude that further testimony by other jurors would only yield more conflicting testimony.

This Court is always quick to guard the right of a defendant to an impartial jury, but that right has been met in this case. The right of the accused to an impartial jury is preeminent, but the right of the jury in its impartiality to be independent is equally paramount.

Affirmed.

      . In Carpintero defendant challenged the impartiality of a juror who was an acquaintance. This Court upheld the District Court’s finding of impartiality based on the juror’s affidavit that “his recognition of the defendant did not cause him to lose his impartiality and specifically denied ever making the statement attributed to him. . . . ” 398 F.2d at 490.

      . When voir dire questions can be interpreted logically to mean something else to a juror, then a literal nondisclosure on another reading of the question cannot be assumed merely for failure to answer the question according to its intended meaning. See Brown v. United States, 10 Cir., 1966, 356 F.2d 230, 233.

      . Concerning the trial court’s ruling on the impartiality of a juror, the Supreme Court long ago stated in Reynolds v. United States, 1878, 98 U.S. 145, 156, 25 L.Ed. 244, 247, that it “must be made clearly to appear that upon the evidence the court ought to have found the juror had formed such an opinion that he could not in law be deemed impartial. The case must be one in which it is manifest the law left nothing to the ‘conscience or discretion’ of the court.”

      . In United States v. Cashio, 5 Cir., 1970, 420 F.2d 1132, 1136, we stated that the defendant must overcome this presumption by - a preponderance of the credible evidence. See United States ex rel. Darcy v. Handy, 1956, 351 U.S. 454, 462, 76 S.Ct. 965, 100 L.Ed. 1331, 1338; Harris v. United States, 9 Cir., 1966, 412 F.2d 384, 386; Brown v. United States, 10 Cir., 1966, 356 F.2d 230, 233.

      . In United States v. Nadaline, 5 Cir., 1973, 471 F.2d 340, 344, this Court allowed the juror to rebut allegations of bias by his own statement to the contrary.

      . At least two Circuits have held that the defendant cannot merely assert that he was harmed because he would have exercised a peremptory challenge against a juror. He must instead show that actual bias existed because the juror was a member of the jury. See Williams v. United States, 10 Cir., 1969, 418 F.2d 372, 377; DeRosier v. United States, 8 Cir., 1969, 407 F.2d 959, 963.

      . The instant case is similar to Williams, supra, in that nothing in the record can “conclusively presume that the non-disclosure was obvious disqualification and inherent prejudice as a matter of law.” Id. at 377. The Court concluded that defendant “is entitled to a fair trial, but not a perfect trial.” Id.

      . Count VI charged defendant with illegally dispensing Dexedrine capsules, commonly used as diet pills.

      . In Farese v. United States, 5 Cir., 1970, 428 F.2d 178, $750.00 in cash was found by the jury when examining a brief case that had been entered into evidence. This Court held that the defendant had been prejudiced since the money had not been introduced as evidence in the courtroom and yet the jury considered it as evidence.

      . In Sinclair v. United States, 1928, 279 U.S. 749, 765, 49 S.Ct. 471, 476, 73 L.Ed. 938, 946, the Supreme Court upheld a contempt ruling against a party who hired detectives to follow and observe members of the jury. In so doing, the Court expressed the importance of independence in the functioning of the jury: “The jury is an essential instrumentality — an appendage — of the court, the body ordained to pass upon guilt or innocence. Exercise of calm and informed judgment by its members is essential to proper enforcement of law . . .. If those fit for juries understand that they may be freely subjected to treatment like that here disclosed, they will either shun the burdens of the service or perform it with disquiet and disgust.” See also Rubenstein v. United States, 1955, 10 Cir., 227 F.2d 638, 643.
      This Court too, has emphasized the importance of an independent jury. This delicate independence was broken in Pekar v. United States, 5 Cir., 1963, 315 F.2d 319, when the Assistant United States Attorney spoke with a juror during a recess in the trial. There Judge Tuttle stated that such “conduct is not only inexcusable, it is clear grounds for the setting aside of a conviction.” Id. at 322.
      Citing Pekar, we again protected the jury from intrusions on its independence by stating in United States v. Harry Barfield Co., 5 Cir., 1966, 359 F.2d 120 that our
      system of trial by jury presupposes that the jurors be accorded a virtual vacuum wherein they are exposed only to those matters which the presiding judge deems proper for their consideration. This protection and safeguard must remain inviolate if trial by jury is to remain a viable aspect of our system of jurisprudence.

        Id. at 124. See also Gonzales v. Beto, 5 Cir., 1971, 445 F.2d 1202, 1204; Bowles v. State, 5 Cir., 1966, 366 F.2d 734, 737.


author: SEITZ, Chief Judge.

text:
    HANOVER INSURANCE COMPANY v. TYCO INDUSTRIES, INC., Appellant, and J. Douglas Corey, Trustee in-Bankruptcy of Parkway Industries Company.
    No. 73-1615.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 14, 1974.
    Decided June 20, 1974.

      A. Fred Ruttenberg, Archer, Greiner & Read, Camden, N. J., for appellant.

      Albert B. Melnick, Jeffrey A. Weiner, Melnick, Muller, Morgan & Weinberg, Haddonfield, N. J., for J. Douglas Corey, trustee in bankruptcy.
    Before SEITZ, Chief Judge, and KALODNER and ALDISERT, Circuit Judges.
   OPINION OF THE COURT

SEITZ, Chief Judge.

This interpleader action was instituted to resolve conflicting claims to the proceeds of a policy issued by Hanover Insurance Company (“Hanover”) insuring Parkway Industries (“Parkway”) generally against loss .or theft of its property. Appeal is taken by Tyco Industries (“Tyco”), one of the claimants, from the district court’s entry of summary judgment in favor of the Trustee in Bankruptcy for Parkway, the only other claimant to the insurance proceeds. The factual background for this action is, briefly, as follows.

Parkway agreed to purchase toys from Tyco. The toys were shipped by common carrier to Parkway’s warehouse where the carrier left the trailer containing the toys. That night, before the toys had been unloaded from the trailer, the trailer was “hijacked” from Parkway’s warehouse. Parkway, claiming that the toys had never been effectively delivered, refused to pay for the toys, and Tyco brought suit against Parkway in New Jersey state court to recover the purchase price. Before that suit was decided, Parkway filed a petition in bankruptcy and was adjudicated bankrupt.

The state court action was stayed during the initial bankruptcy proceedings by order of the Referee. Tyco asked the Referee to dissolve the stay, and the Trustee for Parkway petitioned for, inter alia, authorization to abandon parkway’s defense of that suit. Hanover agreed to assume defense of the lawsuit, the stay was dissolved, and, on finding that an effective delivery of the toys to Parkway had been made, the state court entered judgment for Tyco against Parkway on the debt. Tyco then filed a second action in state court to compel Hanover to pay Tyco the amount owed by Hanover to Parkway, on the insurance policy, and by Parkway to Tyco on the now-established debt. Because the Trustee also claimed the insurance proceeds, Hanover filed this interpleader action in the district court.

Tyco does not contend that any disputed material factual issues exist making the grant of summary judgment in the trustee’s favor improper. Instead, Tyco asserts that the district court erred in holding as a matter of law that the Trustee, and not Tyco, was entitled to the insurance proceeds paid into the court by Hanover. Certainly, absent the operation of some doctrine altering the general rule, these proceeds belong to the Trustee. The insurance policy protected Parkway against the loss or theft of any of its property. Parkway was the named beneficiary of this policy. Tyco was not a party to the insurance contract, nor was Tyco, expressly or constructively, an intended beneficiary; Parkway never undertook any obligation to insure the toys for the benefit of Tyco or to assign Tyco its insurance rights. The insurance policy, thus, did not secure Tyco’s interest in the toys, but rather constituted a general asset of Parkway’s.

On his appointment, the Trustee was vested with title to all of Parkway’s property, Bankruptcy Act § 70a, 11 U.S.C. § 110(a) (1970), including insurance policies and rights of action arising under them. See 4A Collier, Bankruptcy Para. 70.24 (14th ed. 1971) [hereinafter cited as Collier]. Not only did the Trustee hold title to Parkway’s assets; he also was authorized, exclusively, to bring actions that could have been instituted by the bankrupt for the aggregation of assets and for the protection of creditors. 2 Collier Para. 47.05; 4A id. Para. 70.28 [1]. Were unsecured creditors, such as Tyco, allowed to sue a third party owing a debt to the bankrupt and thereby secure full payment of the unsecured claim, the bankruptcy law would be unable to effectuate one of its principal objectives: securing equivalent recoveries for all creditors of the same class. See Kothe v. R. C. Taylor Trust, 280 U.S. 224, 227, 50 S.Ct. 142, 74 L.Ed. 382 (1930); United States v. Embassy Restaurant, 359 U.S. 29, 31, 79 S.Ct. 554, 3 L.Ed.2d 601 (1959).

Tyco, however, contends that even if the Trustee was originally entitled to the insurance proceeds, he abandoned his claim to that asset and cannot reassert it in this action. In carrying out his statutory duty to maximize the bankrupt’s estate, the Trustee may abandon his claim to any asset, including a cause of action, he deems less valuable than the cost of asserting that claim or administering the property. 4A Collier Paras. 70.28 [1], 70.42 [2]. The party seeking to show abandonment has the burden of persuading the court that the Trustee intended to abandon the asset. 4A Collier Paras. 70.28 n. 11, 70.42 [3]. Here, the proximate facts concerning the Trustee’s actions or inaction are not in dispute; Tyco and the Trustee differ, however, as to whether the ultimate fact of abandonment can be inferred from this record.

Tyco contends that the Trustee’s petition to abandon defense of the initial state court suit against Parkway evidences his intent to abandon any claim against Hanover on the insurance policy for loss of the toys. We disagree. Logically, the Trustee’s decision not to defend against Tyco’s suit is completely consistent with his present assertion of a claim to the insurance proceeds. To defend the action would have cost money ; a successful defense would have precluded the addition of Tyco’s claim against Parkway to the claims of other general creditors seeking some satisfaction out of the residue of Parkway’s estate ; unless the amount Tyco would probably receive on its claim, and thus the amount by which the recoveries of other unsecured creditors would be diminished, exceeded the cost of defending the lawsuit, such defense would have resulted in a net loss to the bankrupt’s estate. On the other hand, Tyco’s success in the suit against Parkway offered the possibility of a net gain to the bankrupt’s estate, particularly if the Trustee by not defending incurred no expenses —by establishing that the toys had been delivered to Parkway, the disputed element of Tyco’s cause of action on the debt, the suit would simultaneously establish the fact not conceded by Hanover necessary to Hanover’s liability on the insurance policy. The net estate would be increased by the difference between the recovery obtained by the Trustee from Hanover and the proportionately smaller amount paid Tyco as a general creditor on its claim for the debt.

It is apparent, therefore, that an intent to assert, rather than to abandon, any claim he might have against Hanover should be inferred from the Trustee’s petition. Tyco, however, argues that specific language in the petition demonstrates that the Trustee intended to abandon not only defense of Tyco’s lawsuit, but also any claim against Hanover arising from Parkway’s loss of the toys. In support of this argument, Tyco first points to a portion of the Trustee’s petition stating that Parkway’s insurance would “cover any loss occasion [sic] by this highjacking if it were ultimately found to be the fact that the [toys were] highjacked from the possession of the bankrupt.’’ The petition next stated that Hanover denied that the toys when stolen were property of Parkway covered by the insurance policy. Far from constituting clear evidence of the Trustee’s intent that Hanover, if liable would pay Tyco and not the Trustee, the petition’s language appears designed to show that Parkway’s creditors would not be harmed if the Trustee was permitted to abandon defense of the lawsuit because, if the suit was lost by Parkway, Hanover, which then denied coverage, would be required to pay the Trustee for the loss.

Tyco next contends that the petition’s request that the Referee require Hanover to defend against Tyco’s initial suit reflects the Trustee’s intent to allow Tyco to obtain payment from Hanover. This contention reflects Tyco’s confusion on the matter central to this dispute. Tyco’s cause of action against Parkway for the purchase price of the toys is wholly distinct from Parkway’s right of action, now vested in the Trustee, for payment of the value of the stolen toys as required by the insurance contract. Two different and unrelated contracts are involved/ Tyco’s confusion is caused by a fortuitous overlap; Parkway was a party to both contracts, and whether the toys were delivered to Parkway was an element of the disputes on both contracts. If the toys were delivered, title to them, and risk of loss, had passed to Parkway before they were stolen; under the sales contract, Parkway then was liable to Tyco for their agreed on value, and under the insurance contract, Hanover was liable to Parkway for their actual value at the time the toys were stolen. Since proof of delivery was necessary to establish Hanover’s liability, as well as Parkway’s, the Trustee recognized that Hanover had an interest in defending in Tyco’s suit against Parkway. The Trustee’s petition neither expressly nor implicitly declares that Hanover must defend because there is simply a single liability running from Hanover to Tyco. Because Hanover insured Parkway against loss, not against liability, the two liabilities differ in theory; because Parkway is insolvent, the two liabilities also differ in fact. We do not find the Trustee’s request that Hanover defend the initial suit indicative of an intent to relinquish Parkway’s claim against Hanover on the insurance policy.

Finally, Tyco seeks to show abandonment from the Trustee’s request in his petition that “in the event that said Hanover Insurance Company does not defend said law suit that it be barred from hereinafter asserting any claim of any nature against the within estate based on any claim that it might have by virtue of any payment made to Tyco Industries, Inc. in connection with the cause of action stated in the above entitled suit . . . . ” Although this ambiguous prayer could, as Tyco suggests, be read as evidencing the Trustee’s belief that Tyco might obtain a recovery from Hanover, we find that the statement by itself is insufficient to support an inference, for which Tyco has the burden of persuasion, that the Trustee intended to abandon any claim against Hanover.

Tyco advances several contentions to the effect that the Trustee is barred from asserting any claim to the insurance proceeds; Tyco claims the benefits of equitable estoppel, res judicata from the Referee’s grant of Tyco’s motion to dissolve the stay of its initial action, and res judicata from the judgment in its suit against Parkway. These contentions are all bottomed on Tyco’s view of the distinct liabilities of Parkway and Hanover as unitary. No equitable estoppel is shown, because, as discussed above, the Trustee’s petition to abandon defense of the initial law suit by Tyco did not evidence a position inconsistent with his present claim of the insurance proceeds. Neither the Referee’s decision allowing Tyco’s action to proceed nor the state court judgment finding Parkway liable on its debt to Tyco resolved Tyco’s or the Trustee’s entitlement to payment by Hanover on the insurance policy. We, therefore, reject Tyco’s contentions that the Trustee is barred from claiming the insurance proceeds.

The judgment of the district court will be affirmed.

      . The petition is discussed in more detail infra. The referee entered no order granting or denying this petition.

      . Indeed, Tyco as well as the Trustee moved for summary judgment below. The district court, without opinion, granted summary judgment for the Trustee and denied summary judgment for Tyco.

      . The Trustee’s petition expressly stated his judgment that the probable costs of the litigation would exceed any return to the general creditors:
      Your applicant further represents that it would not be for the best interest of the creditors for the bankrupt to proceed to defend said law suit. That the attorneys fees and other expenses involved would be prohibitive insofar as any ultimate return to the creditors is concerned, That as a practical matter even if the law suit were successfully defended, these expenses would probably exceed the amount by which any dividend to general creditors would be increased and there would be probably a net loss insofar as general creditors are concerned.

      . We believe that the evidence not only fails to show intent to abandon, but also fails to show any act from which Tyco could reasonably have assumed that the trustee had abandoned and on which Tyco could have reasonably relied to its detriment. See Twentieth Century-Fox Film Corp. v. National Publish., Inc., 294 F.Supp. 10, 12 (S.D.N.Y.1968).


author: GEWIN, Circuit Judge:

text:
    Kenneth LEHRMAN, Plaintiff-Appellee, v. GULF OIL CORPORATION, Defendant-Appellant.
    No. 73-2822.
    United States Court of Appeals, Fifth Circuit.
    Sept. 11, 1974.
    Rehearing and Rehearing En Banc Denied Nov. 5, 1974.

      John B. McNamara, Jr., Waco, Tex., W. B. Edwards, Catherine C. McCulley, John E. Bailey, Houston, Tex., for defendant-appellant.
    Jack N. Price, Longview, Tex., Charles M. McDonald, Waco, Tex., for plaintiff- • appellee.
    Before GEWIN, THORNBERRY and RONEY, Circuit Judges.
   GEWIN, Circuit Judge:

I

This is the second appeal in this case, and we are now concerned only with the issue of damages. The first appeal arose out of a treble damage antitrust action filed by Mr. Kenneth Lehrman under Section 1 of the Sherman Act against the Gulf Oil “Corporation (Gulf) alleging that Gulf’s complicated system of setting wholesale prices for its gasoline was used as a mechanism for fixing the retail prices at which station operators like Lehrman resold the gasoline. He alleged that these illegal pricing policies drove him out of his service station business in Mart, Texas, by making it impossible for him to compete with the prices charged by other stations in his area. After the initial jury trial a verdict was returned in Lehrman’s favor in the amount of $60,000 in compensatory damages, but the district court set aside this verdict, reduced the award, and entered a judgment for Lehrman for the sum of $21,000-$63,000 trebled.

Gulf appealed to this court raising the questions of jurisdiction and liability. Both parties to the previous appeal complained of the district court’s treatment of the damages assessed against Gulf. This court concluded that the district court did not lack subject matter jurisdiction and that Gulf was indeed liable for an antitrust violation. We found it necessary, however, to remand the cause for further proceedings restricted to the question of the proper measure of Lehrman’s damages. Although our opinion emphasized the principle that courts are “to take a charitable view of the difficulties of proving damages in a case when a treble-damage plaintiff must try to prove what would have accrued to him in the absence of the defendant’s anticompetitive practice,” it was concluded that “we must at least insist upon ‘a just and reasonable estimate of the damage based on reasonable data.’ ”

Specifically, on the first appeal this court found that there should have been an allowance in the original jury verdict for mitigation of Lehrman’s damages by the amount of his earnings in his current line of work. ^Moreover, it was determined that the district court’s remit-titur was inappropriate. Without noting any other specific criticism of the evidence on damages we offered the following observations in the concluding portion of the opinion:

At the new trial, Lehrman may introduce additional evidence to provide the jury with a better “yardstick” to measure Lehrman’s losses. There may be additional evidence to clarify the possible length of Lehrman’s future tenure in the station and therefore the appropriate duration of future profits. Additional evidence will likely be necessary to provide some measure of the deduction from Lehrman’s damages which must be attributed to the present and future earning capacity he now has which he would not have enjoyed had he continued to look chiefly to the station for his income and to devote most of his time to its operation.

With our former opinion as a guide the case was retried on the damage issue only. Lehrman attempted to remedy the specially enumerated defect in his prior proof by introducing evidence of his alternative sources of income. A second jury returned a verdict for $40,000 and a treble damage judgment of $120,000 was entered by the court. Gulf has appealed again, and today we must decide whether Mr. Lehrman’s efforts on retrial to prove his damages comply with standards prescribed by our previous opinion and by sound precedent. We feel that they do and affirm.

II

Before addressing Gulf’s contentions, however, we should briefly discuss the “law of the case” doctrine which plays an important role in subsequent appeals. This laudable and self-imposed restriction is grounded upon the sound public policy that litigation must come to an end. An appellate court cannot efficiently perform its duty to provide expeditious justice to all “if a question, once considered and decided by it were to be litigated anew in the same case upon any and every subsequent appeal.” Not only does the doctrine promote judicial efficiency but it also discourages “panel shopping” at the circuit level, for in today’s climate it is most likely that a different panel will hear subsequent appeals.

Nevertheless, there are important boundaries to the scope of the doctrine. In the federal courts, for example, the law of the ease does not carry the same consequences as the rule of res judicata; it does not preclude a second review if considerations of substantial justice warrant it. More important to the instant case is the limitation that the doctrine does not include all questions which were present in a case and which might have been decided but were not. As a general rule if the issues were decided, either expressly or by necessary implication, those determinations of law will be binding on remand and on a subsequent appeal.

Ill

Gulf has massed a repetitive and caustic assault upon Lehrman’s case, but its contentions can be distilled into three broad categories; (1) improper jury instructions; (2) the admission of allegedly improper evidence, particularly “yardstick” evidence; (3) the allegedly undue speculation on which the jury verdict is based. The jury instructions are asserted to be deficient in four respects: (1) going concern value should be the only measure of damages, not future profits; (2) the jury should be instructed on the present value concept; (3) the charge allowed the jury to award dupli-cative damages; (4) an instruction on treble damages should have been given.

The first of these assertions— inappropriateness of future profits as a measure of damages — is clearly without merit. Initially, we feel that the law of the case has been clearly established hete. Gulf objected to the use of future profits on the first appeal but we rejected the challenge and stated:

Gulf raises several objections to the damage calculation. First, it objects to the use of future profits as a measure of Lehrman’s damages because, it contends that allowing Lehrman to recover for future profits would enable a proprietor who has been the victim of a single anticompetitive practice to walk away from his business and collect damages for future profits despite the possibility that the business might still be operated successfully. Gulf stresses that the cases which have allowed future profits as a measure of antitrust damages have been eases involving refusals to deal, or cancellation of leases, both of which practices rendered it impossible for the proprietor who had been damaged to continue in business.
We do not accept Gulf’s restrictive application of the principle of future profits as antitrust damages, (footnote omitted)

Indeed, Lehrman is cited in Terrell v. Household Goods Carriers’ Bureau as support for the proposition that lost future profits are an appropriate measure of damages.

Even if we did not feel constrained by the strong policy against continuous relitigation we would still reject Gulf’s contention on the merits. Clearly, going concern value and lost future profits are each viable alternative measures of antitrust damages. Future profits cannot be condemned as inordinately more speculative than the going concern value since the former is a crucial component of the latter. In addition going concern or goodwill value may present difficult problems of proof if the lessor of a particular station places restrictive conditions on the transfer of the lease. Finally, future profits accompanied by an award for any decline in asset values will often more fully compensate a businessman by measuring his lost earnings, not just what it is worth to someone else to reach for those earnings.

Gulf also claims that the jury should have been instructed to award only the present value of lost future profits, and we agree that this would be the better practice. But we do not find this issue raised in Gulf’s objection to the court’s charge. Even assuming the matter is properly preserved we find the error harmless in light of the complex proof.

Pointing to the following instruction, Gulf assigns as a third defect the contention that the court permitted the jury to award duplicative damages:

Our law permits the jury to take into, account both any damages which may have been inflicted on existing property and the damages which may have been sustained as a result of being unable to make profit which may reasonably could have been (sic) anticipated and would have been realized if it were not for the violation of the antitrust laws.

Of course, 15 U.S.C. § 15 provides that “Mny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor. . . . ” But Gulf contends that the above quoted instruction by the district court permits the jury to award damages for both lost future profits and going concern value. Courts have recognized that future profits are a principal element in going concern value. Thus, it is clear that an award including both is inappropriately duplicitous.

Before examining the instruction to see whether it permits such duplication we should consider the possible application of the law of the case. The allegedly duplicative and defective instruction was quoted at length by this court on the first appeal. Our decision expressly stated that the only error in the charge was the failure to instruct the jury to deduct a reasonable amount attributable to Lehrman’s earnings after leaving the gas station business. Since we decided to reverse because the instructions did not include that mitigating factor our conclusion as to the absence of other defects may not have been absolutely necessary, but it was explicit.

Principles of sound judicial administration require that when a Court of Appeals identifies the only defect in a trial court’s charge, the trial court should feel secure in following that mandate, confident that until revised by higher authority it will be respected by all panels. Nevertheless, Gulf maintains that a re-trial on damages is an entirely new “ball game.” Second, it suggests that the court’s statement is of little importance because Gulf did not specifically direct the court’s attention to the language awarding duplicative damages.

Gulf’s position that a re-trial on damages wipes the slate clean is clearly inaccurate as to matters of law as we have previously explained. Gulf’s second argument presents a closer question. As noted, the doctrine of the law of the case applies only to the issues decided, not to all those presented for decision but left unanswered. A strong argument can be made that this court’s express statement decided the present jury instruction issue even though it was not argued or briefed. Even if we should agree, however, that the court’s explicit pronouncement on the trial court’s instruction was premature and should not be strictly followed because argument was not presented, it would not change the result here because we find the instruction appropriate.

The instruction does not allow duplicative damages if property loss is taken to mean loss on tools and equipment. Although Lehrman indicated he was “satisfied” with the sales price he received for his tools there is some evidence that they might have been worth more. Only if property is considered to be inclusive of the going concern value of the station would the instruction permit a duplicative award. Going concern value, of course, is. drawn heavily from the business community’s estimate of future profit potential. But it is clear here that no duplicative inference was to be drawn. In light of the entire instruction and counsel’s argument it is clear that lost profit was virtually the exclusive element of damage. Lehrman opposed references to going concern value at every turn. Given this particular phrasing a clarifying definition of property might have been appropriate, but its omission here was clearly harmless to Gulf.

The fourth objection to the instructions is that the court committed reversible error when it refused to instruct the jury that any jury verdict would be trebled by the court under section 4 of the Clayton Act. Gulf contends that the instruction is necessary because “the jury should know what the law is.” Defendants generally desire such an instruction hoping it will tend to lower the verdict. Plaintiffs naturally fear just such a result. Gulf argues that this circuit has given its tacit approval to a treble damage instruction by quoting in a footnote in North Texas Producers Ass’n v. Young an instruction including such language. Although the charge in North Texas informed the jury of the treble damage provision, the judgment was for the plaintifff. The plaintiff-ap-pellee was apparently satisfied with his verdict, and the defendant-appellant had little reason to object. Thus the court had no reason to scrutinize the charge for items that would arguably harm the plaintiff and aid the defendant. This issue was not presented to the court for review.

In the present case by contrast, the treble damage instruction was not given, and had it been given it would arguably aid the losing party, Gulf. Yet the only defect in the damage instruction identified by our previous opinion was the failure to allow for the mitigation of damages by the amount of Lehrman’s earnings after he left the station. As with the question of duplicative damages Gulf reasons that the failure of the court to specifically address the question on the first appeal gives the court’s approval of the instruction a limited effect. Similarly, we again emphasize that instructions once approved on appeal generally should be given with confidence on remand; but to so hold is unnecessary because assuming it is appropriate to reach the merits of the treble damage argument, we reject it.

We are aware of the fact that there is a division of authority on the wisdom of giving an instruction on treble damages. Indeed, a divergence of opinion developed within a single district. One suggestion to resolve the issue is to inform the jury of the provisions of 15 U.S.C. § 15 followed by an instruction to disregard the treble damage provision in their deliberations. Like many such cautionary instructions the primary result of this suggestion may be to emphasize the provision in the jury’s mind; thus we find it unsatisfactory to accept this solution without an analysis of the need for the underlying treble damage instruction.

Although the treble damage provision may be partially justifiable on compensatory grounds, its principal purpose is to deter antitrust violations. The prospect of a damage award multiplied three-fold should provide an incentive for private parties to instigate costly and uncertain litigation, thus supplementing Governmental enforcement. If, as everyone seems to assume, mentioning the trebling provisions would lower jury verdicts then the very purposes for which the provision is designed may be frustrated. While we cannot know with certainty what effect such an instruction will have on a particular jury or even juries in general, it is clear that it is the duty of the judge, not the jury, to perform the mandatory trebling. The jury only determines the amount of compensatory damages.

We agree with the Tenth Circuit’s statement in Semke v. Enid Auto Dealers Ass'n, that “it serves no useful function to communicate this information to the jury and it is potentially harmful, . . . .” In Semke the district court had given the instruction and this was determined to be error, but harmless error. Thus we conclude that the failure to give an instruction on treble damages is not reversible error.

IV

Next we turn to Gulf’s protest of Lehrman’s method of proof, particularly his alleged use of “yardstick” evidence. There are two generally recognized methods of proving lost profits: (1) the before and after theory; and (2) the yardstick test. The before and after theory compares the plaintiff’s profit record prior to the violation with that subsequent to it. The before and after theory is not easily adaptable to a plaintiff who is driven out of business before he is able to compile an earnings record sufficient to allow estimation of lost profits. Therefore, the yardstick test is sometimes employed. It consists of a study of the profits of business operations that are closely comparable to the plaintiff’s. Although allowances can be made for differences between the firms, the business used as a standard must be as nearly identical to the plaintiff’s as possible.

Lehrman’s method of proof encompassed elements of both the before and after theory and the yardstick theory, but it was not a classic example of either. His expert accountant relying on the history of the station and testimony from witnesses prepared a schedule representing sales volumes of fifteen, twenty and thirty thousand gallons per month. In the station’s best previous month only fifteen thousand gallons had been sold, but Lehrman believed he could sell more and one of Lehrman’s competitors testified that if Lehrman had been able to post competitive prices consistently he could have sold twenty-five thousand gallons per month. For each volume level, profits were computed by using margins of three, four and five cents per gallon, and the margin assumptions were adequately based on the station’s past experience. The margins included rent expense under the station’s lease agreement with Gulf, but a schedule of other expenses was prepared in order to forecast the potential for net profit. Rather than relying exclusively on Lehrman’s past expenses the expert accountant correlated his station expense data with that of three others with which the expert was familiar in order to establish average monthly expense data for service stations. No attempt was made to correlate volume, margin or profit from the other stations; only the expense figures were used. Thus Lehrman’s method of proof was not a traditional model of the yardstick theory.

Reliance upon past volumes, margins and expenses in order to forecast future profits without emphasis on past profits is not the usual before and after method either. Just because Lehr-man’s method of proof is specially tailored to fit his case, however, does not render it unacceptable. Indeed, this court has recognized that the task of proving sales never made as a means of calculating damages is a difficult one. Thus, “while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show[s] the extent of the damages as a matter of just and reasonable inference, although the result be only approximate.” The proof may be indirect and it may include estimates based on assumptions, so long as the assumptions rest on adequate data. Lehrman’s expert’s estimates of lost future profits were based on assumptions regarding volume of gasoline sold, margin and station expense. These assumptions were unquestionably open to challenge and Gulf did challenge them before the jury. Evidentiary support for the assumptions also exists, and we perceive the resolution of the conflicting claims as the traditional responsibility of the jury.

Notwithstanding the foregoing principles Gulf vigorously protests the admission of Lehrman’s evidence labeling it immaterial, irrelevant and prejudicial. First it contends that if future profits are appropriate for consideration, a point it does not concede, it should only be under a before and after model, not a yardstick theory. Since before and after evidence is available and allegedly much more reliable than yardstick evidence Gulf feels it should be the exclusive method of proof. It asserts that Lehrman’s station had been in existence long enough to establish a reliable track record from which to determine whether or not his business would have made future net profits absent Gulf’s violation of the antitrust laws. As Gulf is undoubtedly aware this latter assertion is in direct conflict with the conclusion reached on the first appeal. Moreover, our first decision clearly contemplates the use of “yardstick type” evidence. Although our initial opinion is most likely sufficient to rebut Gulf’s argument that only before and after evidence is appropriate, the meritless nature of the claim seems self-evident. The assertion is actually a variation on the theme that a firm had failed to prosper under the weight of an antitrust violation is entitled to no damages because there was no substantial profit record. Judge Goldberg’s comment in Terrell v. Household Good Carriers’ Bureau is a particularly appropriate rebuttal.

To deny recovery to a businessman who has struggled to establish a business in the face of wrongful conduct by a competitor simply because he never managed to escape from the quicksand of red ink to the dry land of profitable enterprise would make a mockery of the private antitrust remedy.

Second, Gulf maintains that even. if yardstick evidence is generally appropriate in this case, Lehrman’s yardstick evidence was improper because the other stations whose expenses were correlated were not nearly identical or even closely comparable to the Lehrman Gulf station. The one station specifically identified by Lehrman’s accountant was Bill Brown’s Gulf station in Temple, Texas. Gulf asserts that Temple is a growing community of approximately 30,000 population while Mart, where Lehrman’s station was located, has a population of only 2,000. Furthermore, Brown’s station is alleged to have sold only two grades of gasoline, regular and premium, while Lehrman sold three. We need not decide whether Brown’s station and Lehrman’s are sufficiently similar to allow collation of profits because the data from Brown’s station was not used in that manner. Since only Brown’s expense data was utilized by Lehrman’s expert we cannot perceive how Gulf was injured by the enumerated differences between the two stations.

Although the precise impact of the Brown expense figures is not clear, it may well be that their use arose from an abundance of caution by Lehrman and inured to the benefit of Gulf. Expenses in a growing community of 30,000 population may exceed those in a rural area. In fact, Lehrman asserts and Gulf does not contest the fact that Brown’s expenses were about $5,000 a year more than Lehrman’s. It is probably safe to assume, therefore, that the Brown data had an inflationary effect on the expense calculations. Similarly, there is no indication that Brown’s expenses were significantly lowered by selling two grades of gasoline instead of three.

Third, Gulf complains that “\_a]ll the evidence offered by plaintiff as to the future net profit potential of his business was based on events, facts and business developments which occurred after Lehrman left his service station business.” Such evidence is alleged to be inadmissible under Standard Oil Co. of Cal. v. Moore. Initially we note, as Gulf is surely aware, that the jury was fully informed of the station’s history under Lehrman’s operation. The real thrust of Gulf’s contention is that expense figures drawn from Brown’s station were incurred after Lehrman’s station had closed. Gulf has not shown that this factor in any way deflated the expense figures and thus raised the projected profits. As we have just noted the opposite result is more probable. Moreover, the station had been in existence for a substantial period of time prior to Brown’s operation.

Standard Oil is inapposite here because in that case going concern value not future profits was the measure of damages. The plaintiff, Moore, sought to establish the market value of his goodwill as of August 15, 1952; in that context opinions based on events, facts and business developments occurring subsequent to that date may indeed be irrelevant. But we do not understand that holding to extend to estimates of expenses used to compute future profits If we did we would expressly disagree.

V

In addition to the contention that Lehrman’s evidence was immaterial, irrelevant and prejudicial, it is also claimed that it was unduly speculative and conjectural resulting in an excessive verdict. Much of what has been said in the foregoing paragraphs about Lehrman’s method of proof applies with equal force to this additional contention. Little purpose would be served in unduly lengthening this opinion by retracing that discussion and responding to each one of Gulf’s vitriolic attacks. We have previously outlined how Lehrman projected future earnings by estimating sales volume, dealer margin and expense. Lehrman testified as to his age, health and desire to stay in the business in order to give some indication of the appropriate duration of future profits. The specific shortcoming in the damage evidence identified on the first appeal was corrected by the introduction of evidence concerning Lehrman’s earning capacity after he left the station. Rather than characterize Lehrman’s evidence as “rank speculation and utter guesswork” we believe it presents a just and reasonable estimate of damages under difficult circumstances based on relevant data. As this court stated in Terrell v. Household Goods Carriers’ Bureau, “the expert on damages need not be armed on the right hand with a slide rule, on the left hand with a computer. He is allowed some economic imagination so long as it does not become fantasy.”

In regard to the alleged excessiveness of the verdict it is likely that Gulf would consider any amount excessive because it contends that the station had no going concern value. This argument requires no further response. Furthermore, we feel that the $40,000 verdict is well within the jury’s province even though arguably generous. There is no indication that the jury had any bias or prejudice against Gulf, and it was specifically instructed not to guess or speculate on its deliberations. The jury’s verdict has a firm basis in Lehrman’s projections of lost profits. Interestingly, the verdicts of the two juries who heard this evidence are reasonably consistent. The first jury returned a verdict for Lehrman of $60,000. Upon retrial the jury was instructed to deduct from its verdict a reasonable amount attributable to Lehr-man’s earnings after leaving the gas station business. Accordingly, the second jury returned a verdict of $40,000. From all appearances this jury seems to have weighed the conflicting and complex evidence and performed as fact finders in the best sense of the Anglo-American tradition.

VI

To briefly summarize our holding, we conclude that the instructions in this case do not require another reversal for the following reasons: (1) future profits are an appropriate measure of damages; (2) the instructions did not permit duplicative damages to be awarded; (3) a treble damage instruction was not necessary; (4) although the better practice would be to include a present value instruction, its omission here is not a ground for reversal. Additionally, Lehr-man’s evidence should not have been excluded on the ground that it was immaterial, irrelevant or prejudicial; nor was it unduly speculative or conjectural. Finally, we have determined that the jury’s verdict was not excessive.

Gulf has been adjudicated liable for an antitrust violation. Two juries, a district judge and now six appellate judges have attempted to arrive at a fair damage award within the bounds of some precedent. Further delay would not serve the cause of justice. Accordingly, the judgment of the district court is affirmed.

Affirmed.

      . 15 U.S.C. §1.

      . The facts of this controversy have been thoroughly detailed in an opinion resulting from the prior appeal, and little purpose would be served by repeating them here.

        See Lehrman v. Gulf Oil Corp., 464 F.2d 26, 29 (5th Cir. 1972).

      . Lehrman v. Gulf Oil Corp., 464 F.2d 26 (5th Cir. 1972).

      . Id. at 46 (citation omitted).

      . Id. at 46. Failure to instruct the jury to include such a deduction was labeled “the only defect in the lower court’s charge to the jury.” Id. at 47.

      . Zarzaur v. United States, 493 F.2d 447, 453-454 (5th Cir. 1974). Although the federal courts generally refuse to reopen issues that have been previously decided on appeal, it is within their power to do so. IB J. Moore, Federal Practice ¶ 0.404 [10], at 573 (2d ed. 1974); 9 J. Moore, Federal Practice ¶ 110.25 [2], at 275 (2d ed. 1973).

      . White v. Murtha, 377 F.2d 428, 431 (5th Cir. 1967) recently cited with approval in Terrell v. Household Goods Carriers’ Bureau, 494 F.2d 16, 19 (5th Cir. 1974).

      . Zarzaur v. United States, 493 F.2d 447, n. 15 (5th Cir. 1974).

      . Terrell v. Household Goods Carriers’ Bureau, 494 F.2d 16, 19 (5th Cir. 1974); 1B J. Moore, Federal Practice ¶ 0.404 [1], at 405-06 (2d ed. 1974) (not res judicata) ; 9 J. Moore, Federal Practice ¶ 110.25 [2], at 275 (2d ed. 1973) (Reconsideration may be warranted). Also see note 6, supra.

      . Hartford Life Ins. Co. v. Blincoe, 255 U.S. 129, 136, 41 S.Ct. 276, 65 L.Ed. 549 (1921); Terrell v. Household Goods Carriers’ Bureau, 494 F.2d 16, 19 (5th Cir. 1974); Connett v. City of Jerseyville, 110 F.2d 1015, 1018 (7th Cir. 1940); 1B J. Moore, Federal Practice ¶ 0.404 [10], at 573 (2d ed. 1974).

      . Diplomat Electric, Inc. v. Westinghouse Electric Supply Co., 430 F.2d 38, 48 (5th Cir. 1970). Of course if as Diplomat Electric points out, a subsequent panel considers the legal decision clearly erroneous then reconsideration may be warranted as explained in the text accompanying note 9, supra. Also see Terrell v. Household Goods Carriers’ Bureau, 494 F.2d 16 (5th Cir. 1974); 1B J. Moore, Federal Practice ¶ 0.404 [10], at 573 (2d ed. 1974).

      . 464 F.2d 26, 44-45 (5th Cir. 1972).

      . 494 F.2d 16, n. 12 (5th Cir. 1974).

      . Id.; Note, Private Treble Damage Antitrust Suits: Measure of Damages for Destruction of All or Part of a Business, 80 Harv.L.Rev. 1566, 1577 (1967). We, of course, realize that because future profit potential is a principal element of a firm’s going concern value an award should not include both. Albrecht v. Herald Co., 452 F.2d 124 (8th Cir. 1971). Also see the discussion at p. 664, infra.

      . Cf. Frank Coulson, Inc.—Buick v. General Motors Corp., 488 F.2d 202 (5th Cir. 1974). Restrictions might include approval of future transferees and attempts to influence transfer price. Id.

      The evidence indicates that Lehrman’s lease was of the “evergreen” variety, so designated because they are customarily renewed from year to year. Upon this record the jury could easily conclude that though there was a theoretical possibility of early termination by Gulf, in the practical business context it would be much more likely that the lease would be continuously renewed throughout his career. See Note, Private Treble Damage Antitrust Suits, supra note 14, at 1578.

      . See Note, Private Treble Damage Antitrust Suits, supra note 14, at 1581. Gulf asserts that personal factors are clearly inappropriate for consideration here just as they are in eminent domain proceedings. This analogy, however, ignores the different public policies at work in eminent domain and in antitrust suits. Factors which are speculative and appeal to sympathy are excluded in eminent domain proceedings to avoid an undue drain on the public treasury. Arguably in the private enforcement of our antitrust laws a more liberal test of damages should apply. Id. at n. 80.

      . Albrecht v. Times Herald, 452 F.2d 124, 129 (8th Cir. 1971).

      . Lehrman v. Gulf Oil Corp., 464 F.2d 26, n. 14 (5th Cir. 1972).

      . Id. at 47.

      . See text accompanying note 11, supra.

      . Not only did Gulf fail to raise the issue on the first appeal but in its brief on the first appeal it was intimated that the court correctly charged the jury that injury may be to business or property. Furthermore, Gulf again failed to specifically object to this portion of the charge at the second trial. While we are aware that legal issues rarely permit instant analysis we feel that the timing of this objection gives some indication of its de minimis nature.

      . See note 10, supra.

      . See Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 567, 51 S.Ct. 248, 75 L.Ed. 544 (1931).

      . Lehrman allegedly received less than the depreciated tax value on the tools. Also there is no indication that Ms equipment was not in proper functioning order.

      . For a discussion of the definition of business or property under the antitrust statutes see Martin v. Phillips Petroleum Co., 365 F.2d 629 (5th Cir. 1966).

      . See Cape Cod Food Products v. National Cranberry Ass’n, 119 F.Supp. 900, 911 (D.Mass.1954) where almost identical language was used in the damage instruction. The court endeavored, however, to further explain the phrase.

      . 15 U.S.C. § 15 provides, “[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.”

      . In fact it has been argued that the mandatory nature of treble damages results in some unfortunate and counterproductive resistance to private antitrust actions. Note, Private Treble Damage Antitrust Suits, supra note 14, at 1569.

      . 308 F.2d 235, n. 5 (5th Cir. 1962).

      . Like the duplicative damages contention this treble damage issue was not raised in the first appeal. Unlike the duplicative award argument, however, the absence of a treble damage charge drew Gulf’s specific objection in the second trial. See note 21, supra.

      . See p. 664, supra.

      . Distinguished authorities that favor informing the jury of the treble damage provision in the antitrust law include 2 E. Devitt and C. Blackmar, Federal Jury Practice and Instructions §. 85.28, at 265 (2d ed. 1970) and their predecessor W. Mathes, Jury Instructions and Forms for Federal Civil Cases, 28 F.R.D. 401, 467 (1961). Cases approving such an instruction are Bordonaro Bros. Theatres v. Paramount Pictures, 203 F.2d 676 (2d Cir. 1953) and Cape Cod Food Products v. National Cranberry Ass’n, 119 F.Supp. 900 (D.Mass.1954). One commentator has suggested that whether or not the jury is explicitly informed of the provision’s existence, it is unreasonable to assume they will not learn of it during the trial. Note, Private Treble Damage Antitrust Suits, supra note 14, at 1569, n. 20.
      Cases disapproving such an instruction include the following: Standard Industries, Inc. v. Mobil Oil Corp., 475 F.2d 220 (10th Cir. 1973) (Error to give such an instruction but harmless) ; Semke v. Enid Auto Dealers Ass’n, 456 F.2d 1361, 1370 (10th Cir. 1972); Sablosky v. Paramount Film Distributing Corp., 137 F.Supp. 929, 942 (E.D.Pa.1955) and Webster Motor Car Co. v. Packard Motor Car Co., 135 F.Supp. 4, 11 (D.D.C.1955), rev’d on other grounds 100 U.S.App.D.C. 161, 243 F.2d 418 (1957). See also Richfield Oil Corp. v. Karseal Corp., 271 F.2d 709 (9th Cir. 1959). Although the issue is not explicitly discussed in Richfield Oil, a damage instruction without a treble damage provision is labeled as fair, accurate and presenting fully the applicable law. In Richfield Oil the verdict was for the plaintiff and the defendant appealed. Pending release of this opinion, another panel of this court reached the same conclusion that we reach. See Pollock & Riley, Inc. v. Pearl Brewing Co., 498 F.2d 1240 (5th Cir. 1974).

      . Prior to Pollock & Riley, Inc. v. Pearl Brewing Co., supra note 32, some Judges in the Western District of Texas seemed to favor informing the jury of the treble damage provision while others did not.

      . See W. Mathew, supra note 33 at 467.

      . Although we are not aware of any empirical data to support this supposition, its validity or invalidity seems capable of resolution by social science research techniques. See generally J. Weinstein, Hanz Zeisel’s Contributions to the Administration of Justice and the Sociology of Law, 41 U.Chi.L. Rev. 213 (1973).

      . The provision may be necessary because an antitrust violation often involves numerous intangible economic harms which the jury’s verdict may not adequately reflect. Note, Private Treble Damage Antitrust Suits, supra note 14, at 1566.

      . See Semke v. Enid Auto Dealers Ass’n, 456 F.2d 1361, 1370 (10th Cir. 1972).

      . Kinnear-Weed Corp. v. Humble Oil and Refining Co., 214 F.2d 891, 893 (5th Cir. 1954).

      . 456 F.2d 1361, 1370 (5th Cir. 1972).

      . Semke was followed by the Tenth Circuit in Standard Industries, Inc. v. Mobil Oil Corp., 475 F.2d 220, 223 (1973).

      . The two damage theories were used in conjunction in Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 66 S.Ct. 574, 90 L.Ed. 652 (1946).

      . For a good example of the yardstick method see Richfield Oil Corp. v. Karseal Corp., 271 F.2d 709 (9th Cir. 1959), cert. denied, 361 U.S. 961, 80 S.Ct. 590, 4 L.Ed.2d 543 (1960).

      . Terrell v. Household Goods Carriers’ Bureau, 494 F.2d 16, 23 (5th Cir. 1973).

      . Story Parchment Co. v. Paterson Parchment Co., 282 U.S. 555, 563, 51 S.Ct. 248, 250, 75 L.Ed. 544 (1931).

      . Terrell v. Household Goods Carriers’ Bureau, 494 F.2d 16, 24 (5th Cir. 1974); Hobart Brothers Co. v. Malcolm T. Gilliland Inc., 471 F.2d 894, 902 (5th Cir. 1973); Locklin v. Day-Glo Color Corp., 429 F.2d 873, 879 (7th Cir. 1970), cert. denied, 400 U.S. 1020, 91 S.Ct. 584, 27 L.Ed.2d 632; Herman Schwabe, Inc. v. United Shoe Machinery Corp., 297 F.2d 906 (2d Cir. 1962), cert. denied, 369 U.S. 865, 82 S.Ct. 1031, 8 L.Ed.2d 85.

      . Gulf does not abandon the position it took in regard to the instruction: future profit is only relevant as a component of going concern value. Gulf continues to maintain that although Lehrman was forced out of a station he had operated for eight years, he suffered no damage because the station had enjoyed only meager success, and after its closure he was freed to pursue other more profitable enterprises. We feel this contention has been adequately answered by our discussion of the instruction on future profits and the previous opinion of this court.

      . We clearly stated :
      “Particularly is the calculation of damages difficult when the future profits of an enterprise as young as Lehrman’s must be determined, since there is no reliable track record to look back on. But uncertainty cannot end the efforts of- the federal courts to redress the harm caused proprietors by violations of the freedom of the marketplace. The wrongdoer must bear the risk of the uncertainty in measuring the harm he causes.” 464 F.2d at 45.

      . 464 F.2d at 48.

      . 494 F.2d 16, n. 12 (5th Cir. 1974).

      . In its opening brief Gulf correctly informs us that “Bill Brown’s station was not a true ‘yardstick’; in that the only figures taken from the station on which to base projected profits were expense figures and not the actual gallonage, margin, profit or grades of gasoline sold ratios.” (Emphasis in original). Lehrman makes almost identical observations in his brief; the crux of the method being profit comparisons. In its reply brief, however, Gulf apparently disavows its former position and vigorously challenges Lehrman for implying there was no yardstick and for adopting a “no name” theory of damages. Gulf states, “[n]othing could be farther from the truth. Despite Lehr-man’s protestations to contrary, the record clearly shows that appellee’s evidence of projected future net profits was in fact based on a yardstick, Bill Brown’s Temple Gulf station.” We do not regard the foregoing semantic controversy as the crucial focus in the case. Rather, the inquiry should more appropriately center on whether Lehr-man’s method of proof, regardless of the label attached is “a just and reasonable estimate of the damage based on relevant data.” Bigelow v. RKO Pictures, Inc., 327 U.S. 251, 264, 66 S.Ct. 574, 580, 90 L.Ed. 652 (1946); Lehrman v. Gulf Oil Corp., 464 F.2d 26, 46 (5th Cir. 1972); Poster Exchange, Inc. v. National Screen Service Corp., 431 F.2d 334, 340 (5th Cir. 1970).

      . The expert’s testimony is merely to the effect that the expense data was correlated to arrive at average figures.

      . Assuming for the moment that the margin data was compared as well as expense, the number of grades of gasoline sold still seems irrelevant since Gulf’s own witness testified that the dealer’s margin is the same on all grades.

      . 251 F.2d 188, 221 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958).

      . An additional factor present here is that in the economic climate of the past decade it would be most surprising if expenses had decreased with the passage of time.

      . See Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 194 F.2d 846, 855 (8th Cir.), cert. denied, 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1348 (1952); Note, Private Treble Damage Antitrust Suits, supra note 14, at n. 79.

      . The first decision in this case clearly reserved the determination of the duration of future profits to the jury. 464 F.2d at 47. Gulf argues that Lehrman’s age, health and personal desires are irrelevant under Standard Oil Co. of California v. Moore, 251 F.2d 188, 219 (9th Cir. 1957). Standard Oil, however, only held these factors irrelevant to going concern value not to the duration of future profits.

      . Although the verdict was reversed and remanded for a new trial on damages for failure to consider the mitigating factor o’f Lehrman’s new earnings, the court addressed one of the specific contentions that Gulf raises here.
      Gulf also protests the “speculative” testimony of Ernest Brown [appellant’s expert accountant] and urges us to hold this testimony an inadequate basis for assessing Lehrman’s damages. But Gulf merely protests application of the familiar rule that a wrongdoer is responsible for uncertainty in calculating the damages proximately caused by his own wrongdoing. On the facts of the present case, there was evidence from which a jury might conclude that Gulf’s decision to punish Lehrman by means of its TCA system for failure to abide by Gulf’s system of “suggested” prices caused the demise of Lehrman’s station. Once it is apparent that damages must be assessed so as to approximate the future profits of a business, a court and jury necessarily enter into the realm of the imprecise and the uncertain.
      464 F.2d at 45.

      . 494 F.2d 16, 25 (5th Cir. 1974).

      . See Lenz v. Southern Pacific Co., 493 F.2d 471, 472 (5th Cir. 1974). The power of an appellate court to review the excessiveness of a verdict is extremely limited. Ross v. Newsome, 289 F.2d 209, 210-211 (5th Cir. 1961). Great caution should be exercised before the appellate courts interfere. St. Louis Southwestern Ry. Co. v. Williams, 397 F.2d 147, 152 (5th Cir. 1968).

      . For example, according to some of the evidence, if Lehrman, a man of thirty-five at the time of the second trial, had operated the station for ten years at a volume of 20,000 gallons per month with a five cent dealer margin, his projected profits were estimated to be $77.480.


author: PER CURIAM:

text:
    Pedro G. ALONZO, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
    No. 74-2444
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 16, 1974.
    Pedro G. Alonzo, pro se.
    John L. Hill, Atty. Gen., Merrill Fin-nell, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

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

   PER CURIAM:

In his habeas petition in the District Court, appellant claimed he had been denied the due process of law guaranteed him by the Fourteenth Amendment, in that the guilty plea he entered in Texas state court was involuntary. He claims he was so upset about a second pending proceeding he could not understand the waiver of rights purportedly made in connection with the plea. The District Court denied relief on the ground the question had not been presented to the Texas courts. 28 U.S. C.A. § 2254. By incorporating the Magistrate’s recommendation, the Court ordered appellant to proceed under Article 11.07 of the Téxas Code of Criminal Procedure before reapplying for federal relief. We agree the Texas courts should further consider appellant’s case, but not because the question has never been “raised” within the meaning of 28 U.S.C.A. § 2254(b).

Appellant contends this issue was “raised” in the Texas Court of Criminal Appeals, citing his appellate brief in that court. He is correct the issue was “raised” in the sense it was discussed on one page of the brief. However, the issue, not identified with any particularity and on which the Court of Criminal Appeals did not address itself, Alonzo v. Texas, 1971, 462 S.W.2d 603, was not the subject of any factual hearing on which to rest a factual basis for determination of the merits.

A state appellate court need not expressly address itself to a federal constitutional claim before state remedies are “exhausted”. However, the “exhaustion”' principle is one of comity, not jurisdiction. Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; Hairston v. Alabama, 5 Cir., 1972, 465 F.2d 675. Our review of the posture of this case in the Texas Court of Criminal Appeals persuades us the Texas courts have not been afforded the opportunity to review appellant’s constitutional claims this comity principle entitles them to have. Texas v. Payton, 5 Cir., 1968, 390 F.2d 261; see Parson v. Beto, 5 Cir., 1972, 463 F.2d 249; cf. Picard v. Connor, 1971, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438; Garrett v. Texas, 5 Cir., 1970, 435 F.2d 709; Carter v. Duggan, 5 Cir., 1972, 455 F.2d 1156.

Article 11.07 of the Texas Code of Criminal Procedure provides an “available State corrective process ... to protect the rights of the prisoner.” 28 U.S.C.A. § 2254(b). That forum should be given the opportunity to assess the factual foundation of appellant’s claims. Texas v. Payton, 5 Cir., 1968, 390 F.2d 261; cf. 28 U.S.C.A. § 2254(d). The District Court correctly concluded the present denial of habeas relief is without prejudice to a new petition should the Texas courts deny relief.

Affirmed.