author: O’SULLIVAN, Senior Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Gayle King SHROPSHIRE, Defendant-Appellant.
    No. 73-1318.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 12, 1973.
    Decided June 5, 1974.

      Robert H. Feeney (Court Apptd.), Chattanooga, Tenn., for appellant; Ortwein & Feeney, Chattanooga, Tenn., on brief.
    W. Lloyd Stanley, Jr., Asst. U. S. Atty., for appellees; John L. Bowers, Jr., U. S. Atty., E. D. Tenn., Chattanooga, Tenn., on brief.
    Before PECK and McCREE, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
   O’SULLIVAN, Senior Circuit Judge.

We consider the appeal of Gayle King Shropshire from conviction upon jury trial in the United States District Court for the Eastern District of Tennessee, Southern Division, on two counts of a three-count indictment. These counts charged appellant with: (1) being an accessory after the fact to bank robbery, in violation of 18 U.S.C. § 3; (2) possessing stolen money, in violation of 18 U.S.C. § 2113(c); and (3) possessing a firearm which had not been registered to him under a National Firearms Registration and Transfer Record, in violation of 26 U.S.C. §§ 5861(d) and 5871. Appellant was found guilty as to counts 1 and 3.

On June 15, 1972, three armed men robbed the East Brainerd branch of the Pioneer Bank of Chattanooga, Tennessee, of the sum of $12,822. The money which was stolen included a stack of “bait money” — a packet of $20 bills whose serial numbers had been previously recorded by the bank. Because all three men had concealed their faces with ski masks and wore long coats, no witnesses were able to make specific identification of the robbers. The disguises, paraphernalia, and guns employed were observed, however.

Thereafter, on July 19, 1972, appellant and his wife Brenda purchased some groceries at a food market in Tennessee. As payment for the purchases, Brenda gave the owner a $20 Federal Reserve Note. The note was placed under the cash register drawer, and after the Shropshires left the store, Robert Burk-hart, a Hamilton County Deputy Sheriff, copied its serial number. After checking it the next day, it was discovered that the serial number matched one of the numbers of the “bait money” taken in the robbery.

On July 21, 1972, FBI Special Agent Walter Smart secured a search warrant for the persons and premises of appellant and Brenda Shropshire. This warrant was subsequently executed by Smart and his fellow FBI agents on July 24. From the Shropshires’ trailer home, they seized three pairs of brown cloth gloves, two green cloth bags and two pistols. In a 1968 Pontiac automobile, which was registered to appellant, the agents seized various articles, including a .32 calibre revolver, three ski masks, a 12-gauge sawed-off shotgun, and a pair of pants containing two shotgun shells. There was testimony by witnesses to the robbery that these articles were similar to the paraphernalia and arms employed by the bank robbers. Appellant and his wife were arrested on a warrant issued July 31, 1972.

Prior to trial, appellant made various motions, including a motion to suppress evidence obtained upon execution of the search warrant and a motion to dismiss count one of the indictment. These motions were overruled. Upon conviction, appellant was sentenced to serve five years on count one and two years on count three of the indictment.

In this appeal, appellant assigns the following errors:

1) That the Court erred in refusing to strike the jury panel.
2) That the Court erred in refusing to dismiss the indictment.
3) That the Court erred in overruling appellant’s motion to suppress evidence obtained as a result of the search and seizure.
4) That the Court erred in limiting cross-examination of a government witness.
5) That the evidence preponderates to support against the verdict and in favor of the defendant.

We affirm.

We discuss the charges of error in the order of their presentation in appellant’s brief.

I. Motion to Strike Jury Panel.

In his voir dire examination of the prospective jurors, the District Judge asked them collectively whether any of them knew “the defendant Gayle King Shropshire or have any connection with him, or so far as you know, any close person to you have any such connection.” A Mrs. Robbs, one of the jurors, held up her hand and the following ensued:

“Q. THE COURT: Mrs. Robbs, do you know Mr. or Mrs. Shropshire?
MRS. ROBBS: Not personally, but my husband knows him.
THE COURT: Your husband knows him, but you don’t know him at all?
MRS. ROBBS: No, sir.
THE COURT: Is there anything about your husband’s connection with him, Mrs. Robbs, that might cause you to start the trial with some idea about whether or not he was guilty or innocent of these charges ?
MRS. ROBBS: I don’t know about this case, but in a previous case we had some discussion.
THE COURT: We are only concerned with the case being tried here today. You say you have had some discussion with your husband about some other case at some other time ?
MRS. ROBBS: Yes, sir.
THE COURT: All right, Mrs. Robbs, the Court will excuse you.”

The entire jury panel was sent out of the courtroom and defense counsel then moved that all of the jurors who had heard the above be excused. This motion was denied and upon the jury panel returning to the courtroom, the District Judge advised them:

“THE COURT: Now, ladies and gentlemen, one other question the Court would like to ask you. One of the prospective jurors, Mrs. Robbs, in giving her answer to certain questions asked by the Court, mentioned something about an earlier offense with which Mr. Shropshire was charged. That has no place in the trial of this lawsuit. The defendants are specifically charged in the indictment in this case and they are to be found guilty or innocent of those charges and not of any other charges.
“Now, if you believe that what you heard would prejudice you in any way against Mr. Shropshire so that you could not put that out of your mind and give him a fair and impartial trial on the charges of this indictment, will you please raise your hand at this time?
“If you have any doubt whether or not you can take that out of your mind and’give him a fair and impartial trial on this indictment, please raise your hand at this time.”

No juror made a response. We are neither persuaded that prejudice was visited upon appellant by the event set out above, nor that the District Judge’s handling of the matter was an abuse of discretion.

II. Motion to Dismiss the Indictment.

The relevant motion asked dismissal of Count I of the indictment which charged:

“The Grand Jury charges that on or about July 24, 1972, in the Southern Division of the Eastern District of Tennessee, the defendant GAYLE KING SHROPSHIRE, knowing that a bank robbery had been committed in violation of Title 18, United States Code, Sections 2113(a) and (d), did knowingly and wilfully relieve, receive, comfort and assist the persons who had committed the aforesaid offense, their identities being unknown to the Grand Jury, in order to hinder and prevent their apprehension for trial and punishment; that is to say, “The said GAYLE KING SHROPSHIRE, well knowing that persons unknown to the Grand Jury had committed a bank robbery as aforesaid, did receive, possess and conceal the weapons, disguises, ski masks, and other items used in the aforesaid robbery in order to prevent detection and discovery of said items, for the purpose of aiding and assisting said persons to the Grand Jury unknown to escape apprehension for trial and punishment.”

Except for its claims that the indictment was insufficient because it did not “identify the person or persons involved in the alleged bank robbery,” and that the indictment was “so vague, ambiguous and indefinite as to deprive the defendant of the rights guaranteed by * * * the Constitution of the United States,” the motion to dismiss merely charged conclusionally that the indictment was fatally defective.

The prosecution conceded, and the indictment averred, that the identity of the bank robbers was unknown to the government. A motion for a Bill of Particulars was made on the eve of trial, at which time defense counsel advised the Court:

“We didn’t file a motion for a bill of particulars before, but at the time of the arraignment we talked to the Attorney General and he suggested that we submit to them exactly what we were desirous of obtaining. We did that and that was complied with.”

Appellant cites no authority to support a claim that identification of the bank robbers was essential to the indictment’s validity. The District Judge’s memorandum opinion, denying the motion to dismiss, stated:

“The indictment contains all the elements of the statutory offenses intended to be charged by a grand jury and sufficiently apprises each defendant what he or she should be prepared to meet, so that a judgment on any count would be a bar to further proceedings against the same defendant for the same respective offenses. The defendants’ motion, therefore, hereby is OVERRULED: See United States v. Cook, D.C.Tenn. (1962), 213 F.Supp. 568, 569; Richardson v. United States, C.A. 6th (1945), 150 F. (2d) 58, 60; Rudin v. United States, C.A. 6th (1958), 254 F. (2d) 45 [3-5].”

His ruling was correct. See also, United States v. Marra, 481 F.2d 1196, 1199 (6th Cir. 1973), cert. denied, 414 U.S. 1004, 94 S.Ct. 361, 38 L.Ed.2d 240 (1973); United States v. Levinson, 405 F.2d 971, 977 (6th Cir. 1968), cert. denied, 395 U.S. 958, 89 S.Ct. 2097, 23 L.Ed.2d 744 (1969).

III. Motion to Suppress.

This motion asserted:

1) That the affidavit to the search warrant does not establish probable cause that any stolen money was at the premises to be searched.
2) The premises were not those described in the warrant.

The search warrant in issue authorized the search of the persons of Brenda and Gayle King Shropshire, as well as a house trailer described in the affidavit for the warrant as the residence of the Shropshires. The warrant went on to state that there was being concealed on the above persons and premises the proceeds from the Pioneer Bank robbery, “including a quantity of $20 Federal Reserve Notes, Serial Numbers of which had been previously recorded and which are available for comparison.”

The affidavit for the search warrant request stated the following:

“That on the morning of June 15, 1972, three masked white males robbed the East Brainerd Branch of the Pioneer Bank which is F.D.I.C. insured, the robbery being by force. Officials of the bank furnished a tabulation of the stolen money, including a list of $20 Federal Reserve Notes taken. The Serial Numbers of which had been prerecorded by bank employees. One such Federal Reserve Note was a Series 1950 A $20, Serial No. F42542698A.
“On July 19, 1972, Robert Burkhart, a Hamilton County, Tenn. Sheriff’s Deputy was at the Ship & Shore Food Market, 7428 Hixson Pike, and while there observed Gayle King Shropshire and wife, Brenda Faye Shropshire, (who he knows by sight) in this store. He saw that in payment for a purchase a $20 Federal Reserve Note was given by them to the store manager, which bill he subsequently examined. The serial No. thereon corresponded to one of the prerecorded Serial Numbers, to-wit: F42542698A. The storekeeper stated to Deputy Burkhart that the said $20 Note had been given to him by Brenda Faye Shropshire.
“Gayle King Shropshire was previously, on February 14, 1970, observed in possession of two $20 Federal Reserve Notes with prerecorded Serial Numbers determined subsequently to be a part of the proceeds of the robbery of the Coalmont Savings Bank, Coalmont, Tennessee, which robbery occurred on February 12, 1970.
“On June 10, 1970, W. C. Lasley, Soddy, Tennessee, furnished two $5.00 bills to FBI. He advised he had obtained these bills from his grandson, Bobby Eugene Hardin, who in turn had advised him he had obtained these $5.00 from Gayle King Shropshire. A check of the Serial Numbers of these bills disclosed that one of the bills is a part of the money taken in the robbery of the First National Bank of Stevenson, Higdon Branch, Higdon, Alabama on May 21, 1970. A number of Serial Numbers of the stolen bills in this bank robbery had been prerecorded by bank employees.
“A confidential informant, who has furnished reliable information in the past, has informed Agents of the FBI that Gayle King Shropshire has participated in other bank robberies.
“Previous investigations have disclosed that Gayle King Shropshire and Brenda Faye Shropshire have resided as husband and wife in the above described trailer at its present address in excess of one year.
“The affiant knows that in the past Gayle King Shropshire and Brenda Faye Shropshire have been unemployed and during their unemployment have purchased several different automobiles. In the best of my knowledge neither is employed at this time.”

This affidavit was signed by FBI Special Agent Walter W. Smart, Jr.

In testing the validity of a search warrant, we employ the Supreme Court’s rule that affidavits for search warrants are to be interpreted in a “commonsense and realistic fashion,” and that “ [a] grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.” United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965); see United States v. Harris, 403 U.S. 573, 577, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 110-111, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); United States v. Williams, 459 F.2d 909, 913 (6th Cir. 1972).

The claim that the premises searched were not those described in the search warrant is bottomed upon the fact that the officer who executed the warrant testified at the hearing on appellant’s motion that he actually searched “the third trailer” on the road described in the warrant, whereas the warrant referred to the “second trailer.” There is no dispute, however, that the appellant’s trailer was “a white trailer trimmed in brown, located on Lot 37.” Nor is there dispute that appellant’s trailer was the one searched.

In view of the rule that the validity of search warrants is to be interpreted in a “commonsense and realistic fashion,” as set out in the authorities cited above, we believe that probable cause was provided by the affidavit and that there was no illegality in the execution of the warrant.

We are also admonished to pay great deference to a finding of probable cause, Spinelli v. United States, supra, 393 U.S. at 419, and that resolution of doubtful cases “should be largely determined by the preference to be accorded to warrants.” United States v. Ventresca, supra, 380 U.S. at 109; Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). We are not persuaded to rule that a Federal Magistrate and a United States District Judge both erred in their determinations that there existed probable cause for the issuance of the search warrant, or that the District Judge erred in finding its execution valid.

IV. Limitation of Cross-examination.

During defense counsel’s cross-examination of FBI Agent Walter W. Smart, who was present when the search warrant was being executed, it was shown that at that time a brother of appellant — one John Shropshire — arrived on the scene. Counsel sought to elicit from Agent Smart the fact that John Shropshire had then asserted that he was the owner of the automobile in which one or more guns and other paraphernalia allegedly used in the bank robbery were found. An objection to what John Shropshire said in this regard was sustained. Except for this excluded hearsay statement of asserted ownership by John Shropshire, the evidence showed that the automobile was owned by appellant late in the month of June, well before the July 24 search. No attempt was otherwise made to establish John Shropshire’s ownership of the vehicle. His testimony could have been obtained at trial or by means of deposition because he was then confined in a federal penitentiary. No attempt, however, was made to impair the official record of appellant’s ownership other than by the excluded hearsay. Sustaining the involved objection was within the trial judge’s discretion. United States v. Johnson, 414 F.2d 22, 28 (6th Cir. 1969), cert. denied, 397 U.S. 991, 90 S.Ct. 1112, 25 L.Ed.2d 399 (1970); United States v. Johnston, 318 F.2d 288, 291-292 (6th Cir. 1963).

V. Sufficiency of Evidence.

In testing the sufficiency of the evidence, we employ the familiar rule that in doing so we view the government’s evidence in its most favorable light, indulging inferences legitimately drawn therefrom. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Decker, 304 F.2d 702, 705 (6th Cir. 1962).

We, of course, may not give any weight to the fact that neither the appellant nor his wife took the stand. Such fact, however, leaves unimpaired the evidence that appellant’s wife, in appellant’s presence, passed one of the “bait” treasury notes taken in the bank robbery involved. We have set out above the items of paraphernalia and the guns found in the search. While no witness could say that the seized guns were in fact those used in the bank robbery, they were identified as being the make and calibre of armament carried by the bank robbers. As to the ski masks, gloves and other items of disguise, minimal discrepancies between those found in appellant’s trailer and the descriptions given by the robbery witness did not in our view forbid the jury from employing these items in support of their concensus. In total, the evidence was sufficient to allow the jury to convict the appellant of the charged offenses.

Judgment affirmed.

      . Also indicted was appellant’s wife, Brenda Shropshire, and she was convicted on a count of possessing stolen money, in violation of 18 U.S.C. § 2113(c). The District Judge subsequently granted Mrs. Shropshire a new trial, and according to the government’s brief, a nolle prosequi was entered as to her.


source: Caselaw Access Project

author: MATTHES, Senior Circuit Judge.

license: Public Domain

text:
    James FOWLER et al., Plaintiffs-Appellants, v. Ruth SCHWARZWALDER et al., Defendants-Appellees, and Daniel R. Souder et al., DefendantsIntervenors-Appellees.
    No. 73-1129.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 14, 1973.
    Decided June 7, 1974.
    See also 351 F.Supp. 721, 348 F.Supp. 844.
    Andrew W. Haines, St. Paul, Minn., for appellants.
    Scott Davies, City Atty., St. Paul, Minn., for appellees.
    Before MATTHES, Senior Circuit Judge, and LAY and ROSS, Circuit Judges.
   MATTHES, Senior Circuit Judge.

Plaintiffs in this litigation, seven black residents of St. Paul, Minnesota, who took an examination in July of 1972 to be city firemen, brought this class action against the St. Paul Civil Service Commission, its Director, and the fire chief of St. Paul. Plaintiffs sought injunctive relief from alleged racially discriminatory practices of the defendants in examining and hiring applicants for firemen for St. Paul. Jurisdiction was founded upon 28 U.S.C. § 1343(3) and (4), and 42 U.S.C. §§ 1981 and 1983.

On December 6, 1972, the district court, although noting that it was not claimed that the defendants acted with “ill purpose or discriminatory intent” in constructing the test in July, nevertheless ruled that the plaintiffs had made a prima facie showing that the examination discriminated against applicants from minority groups, and that the defendants had failed to rebut the prima facie case. The court enjoined the defendants from employing applicants on the basis of their performance on the July examination and enjoined the future use of such a test until it had been validated according to certain EEOC guidelines.

Subsequently, plaintiffs moved for an order by the district court awarding to the plaintiffs their reasonable costs, including attorney’s fees. On January 4, 1973, the district court awarded costs, but denied an award of attorney’s fees on the grounds that

There is no statutory authority for such, and this is not the type of extraordinary case where the conduct of defendants was characterized by bad faith or unreasonable or obdurate obstinacy as to justify such an award.

The award of fees was also denied on a subsequent motion for reconsideration. In appealing the denial of the fees, plaintiffs contended that the district court employed the incorrect standard in exercising its discretion to grant or deny an award for attorney’s fees when it denied fees solely on the ground that the record showed an absence of bad faith or obstinacy by the defendants. We delayed disposition of the appeal pending a decision by the Supreme Court in Bradley v. School Board, 472 F.2d 318 (4th Cir. 1972), a school desegregation case which raised some issues similar to those posed by the appeal in the instant case.

A reading of the recent opinion of the Supreme Court in the Bradley case,-U.S. -, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), however, reveals that the Court ruled in favor of granting attorney’s fees in that case on the basis of a specific statutory authorization in § 718 of Title VII of the Emergency School Aid Act, legislation not relevant to the litigation before us. The opinion of the Court in Bradley indicates that the award or denial of attorney’s fees in cases like the present one is still a matter of discretion for the district court. Nevertheless, the issue on this appeal remains whether the district court used the correct guidelines in exercising that discretion.

In American jurisprudence the traditional rule has been that, absent statutory authorization, attorney’s fees are not recoverable as costs. ' But the federal courts have the equitable power to grant such fees, Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939), and the courts have developed several exceptions to the general rule that no attorney’s fees should be awarded. Thus courts have granted attorney’s fees when the defendant has acted in bad faith or has been obdurate and obstinate during the controversy. See, e. g., Bell v. School Board, 321 F.2d 494 (4th Cir. 1963); Cato v. Parham, 293 F.Supp. 1375 (E.D.Ark.), aff’d, 403 F.2d 12 (8th Cir. 1968). Federal courts have also awarded fees to plaintiffs from a “common fund” which the plaintiffs have successfully secured or protected for the benefit of themselves and others. See Sprague v. Ticonic Nat’l Bank, supra.

But it is yet another extra-statutory grounds for the exercise of court discretion to award attorney’s fees that is relevant to this appeal. Two opinions of the Supreme Court in recent years have served as the impetus for the establishment of new guidelines for the award of attorney’s fees to encourage litigation which vindicates certain strong Congressional policies. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). See generally Falcon, Award of Attorney’s Fees in Civil Rights and Constitutional Litigation, 33 Md.L.Rev. 379, 396-411 (1973); Nussbaum, Attorney’s Fees in Public Interest Litigation, 48 N.Y.U.L.Rev. 301 (1973); Note, Allowance of Attorney Fees in Civil Rights Litigation, 41 U.Cin.L.Rev. 405 (1972); Comment, The Allocation of Attorney’s Fees After Mills v. Electric Auto-Lite Co., 38 U.Chi.L.Rev. 316 (1971).

In Newman, the Supreme Court held that the provision in Title II of the Civil Rights Act of 1964 allowing attorney’s fees to be awarded in certain public accommodations suits was intended by Congress

not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II.

390 U.S. at 402. The thrust of the Court’s per curiam opinion was that, absent compelling circumstances, a plaintiff who acts as a “private attorney general” in seeking to vindicate Congressional policy of the highest priority and advance the public interest should not be forced to bear the costs of litigation. Indeed, few aggrieved parties would have the financial resources to pay such fees.

The holding in Newman has been extended to the award of fees in litigation under the equal employment opportunity provisions of Title VII of the same Act, which also contains a provision for awarding fees. See, e. g., Parham v. Southwestern Bell Tel. Co., 433 F.2d 421 (8th Cir. 1970). Moreover, the “private attorney general” doctrine of Newman has been applied to award attorney’s fees in suits under civil rights provisions of the United States Code without an express authorization of such fees. Thus attorney’s fees have been granted in suits under 42 U.S.C. § 1982, Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972); Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971) ; under 42 U.S.C. § 1983, Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.1972); Lyle v. Teresi, 327 F.Supp. 683 (D.Minn.1971); and under 42 U.S.C. § 1981, Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972).

In Lee v. Southern Home Sites Corp., supra, a suit involving litigation arising from housing discrimination, the Fifth Circuit noted that § 1982 has no provision authorizing the award of attorney’s fees to a successful plaintiff, but then observed

[I]n fashioning an effective remedy for the rights declared by Congress one hundred years ago, courts should look not only to policy of the enacting Congress but also to the policy embodied in closely related legislation. ...
In adjudicating the shape of the remedies for violations of 42 U.S.C. §§ 1981, 1982, courts must give weight to the actions of Congress in enacting the sections of the 1964 and 1968 Civil Rights Act aimed at very similarly defined social problems.

444 F.2d at 146. The court reasoned that, since Congress had provided for attorney’s fees in suits under the public accommodations provisions of Title II of the Civil Rights Act of 1964, Congressional policy should be furthered by the award of fees in most instances in housing discrimination suits under § 1982.

Such reasoning is persuasive in our case as well. See Cooper v. Allen, supra. A suit under §§ 1981 and 1983 attacking racial discrimination in employment clearly furthers the will of Congress that such discrimination should be eliminated. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In addition, it is apparent that Congress is aware that the award of attorney’s fees may be an effective device in furthering its policy that there be no racial discrimination in employment, for it provided for the award of such fees for certain employment discrimination litigation under Title VII. 42 U.S.C. § 2000e-5(k).

Consequently, we remand to the district court in order that it may exercise its discretion to award or deny attorney’s fees in this suit under §§ 1981 and 1983 in light of the teachings in Mills, Newman, and the subsequent federal court cases cited above applying the “private attorney general” doctrine. We believe that the district court should have the first opportunity to consider the plaintiffs’ application for attorney’s fees in light of what we consider to be the prevailing standards. See generally Stanford Daily v. Zurcher, 366 F.Supp. 18, 21-25 (N.D.Cal.1973); La Raza Unida v. Volpe, 57 F.R.D. 94, 98-101 (N.D.Cal.1972), for examples of analyses in determining if an award of fees is appropriate.

Reversed and remanded for further proceedings consistent with this opinion.

      . In Lyle, the late Judge Neville, writing with his characteristic precision and thoroughness, held that Newman mandated an allowance of attorney’s fees in a § 1983 suit involving harassment of blacks by police officers. See 327 F.Supp. at 685-686.


author: McENTEE, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Edwin L. SULLIVAN, Defendant, Appellant.
    No. 74-1020.
    United States Court of Appeals, First Circuit.
    Argued May 6, 1974.
    Decided June 4, 1974.

      Peter Lawson Kennedy, Providence, R. I., with whom Adler, Pollock & Sheehan, Providence, R. I., was on brief, for defendant, appellant.
    Lauren S. Kahn, Dept, of Justice, with whom Lincoln C. Almond, U. S. Atty., S. Michael Levin, Sp. Atty., Dept, of Justice, and Jerome M. Feit, Atty., Dept, of Justice, were on brief, for appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

Defendant was convicted by a jury on two counts of unlawfully and willfully embezzling, stealing, abstracting and converting to his own use funds of the International Union of Operating Engineers, Local No. 57, of which he was an employee and minor official, in violation of 29 U.S.C. § 501(c) (1970). On appeal, defendant principally contends that § 501(c) could not have been properly applied to him, and further that, in any case, the evidence presented at trial did not support his conviction.

Defendant’s initial claim is substantially without merit. Section 501(c) provides unambiguously that

‘‘Any person who embezzles, steals, or unlawfully and willfully abstracts or converts to his own use . . . any of the moneys, funds, securities, property or other assets of a labor organization of which he is an officer, or by which he is employed [is guilty of a crime].” (Emphasis supplied).

At the time of the illicit activities alleged in the indictment, it is undisputed that defendant was a bonded employee of the local union’s business office, being responsible, in part, for the preparation of checks and the acceptance and receipt of monthly union dues. Moreover, during this period, defendant occupied the union office, of Guard, though the evidence revealed that this position was largely a ceremonial one. Consequently, it seems evident that, upon consideration of defendant’s status both as an employee and an officer, § 501(c) would prima, facie apply to proscribe his participation in the unlawful conduct described therein. However, defendant contends that it was the Congressional intent to limit the full applicability of § 501(c) strictly to those particular union positions, described by 29 U.S.C. §§ 402(q), 501(a) (1970), which involve certain fiduciary obligations vis-a-vis the union. Since defendant further contends that his functions within the union did not fall within the ambit of the fiduciary relationships defined in §§ 402(q) and 501(a), he therefore claims that § 501(c) has no applicability to him.

Preliminarily we note that even a liberal construction of this court’s decision in Colella v. United States, 360 F.2d 792, 799, cert. denied, 385 U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65 (1966), compels rejection of defendant’s broad contention that §§ 402(q) and 501(a) completely circumscribe § 501(c). While recognizing that “insofar as embezzlement is concerned, the existence of a fiduciary relationship is necessary” for conviction, our opinion in Colella emphasized that

“[w]e are not dealing with an indictment charging simply embezzlement. Section 501(c) establishes ‘a new Federal crime of embezzlement of any funds of a labor organization.’ [citation omitted] The new crime can be accomplished in one of four ways: embezzling, stealing, unlawfully and willfully abstracting, and unlawfully and willfully converting.” 360 F.2d at 799.

And, while suggesting that a § 501(a) or § 402(q) fiduciary relationship may arguably be an “essential element of the embezzlement means of committing the new federal crime, Colella seems to make clear that such a relationship “is not essential to the three other means.” Id. at 800 n.6. See Doyle v. United States, 318 F.2d 419 (8th Cir. 1963). Moreover, since, as we said in Colella, we “cannot imagine facts constituting embezzlement which would not also, absent a fiduciary relationship, make out unlawful and willful abstraction or conversion,” 360 F.2d at 800, the defendant in the instant case would not have been prejudiced by the fact that he conceivably could not have been convicted of traditional embezzlement, on the assumption that his union functions were not covered by §§ 402(q) and 501(a). “As far as the defendant is concerned, he has been placed in jeopardy with respect to all means of committing the offense by the proper manner of substitution in the indictment of the conjunctive ‘and’ for the statutory disjuctive ‘or’, [citations omitted].” Id.

Thus, the impact of §§ 402(q) and 501(a) is at best limited to its effect upon the embezzlement provision of § 501(c), but see note 3 supra, and does not preclude a non-fiduciary union employee or officer from being subject to the remaining three aspects of that section. Nonetheless, even if we were to accept, for the sake of argument, defendant’s contention regarding the limiting role of §§ 402(q) and 501(a), we would still be forced to reject his argument.

In the first place, defendant is an elected officer of the union, and strictly speaking, no matter how ceremonial, § 501(a) invests in such officers the requisite fiduciary obligations necessary to sustain conviction under § 501(c), see note 2 supra, even were that section to be modified in the manner defendant suggests. Given the broad protective purposes underlying § 501, see, e. g., United States v. Goad, 490 F.2d 1158, 1161-1162 (8th Cir. 1974) cert. denied, - U.S. -, 94 S.Ct. 3068, 41 L.Ed.2d - (1974); Johnson v. Nelson, 325 F.2d 646, 650 (8th Cir. 1963), we think it entirely appropriate to construe the § 501(a) term “officer” in its most literal sense to include all union officers, no matter how minor their responsibilities. Certainly, it would violate the important judicial and social policy of clarity in the law to permit each potential § 501(c) defendant-officer to attempt to establish that his particular official functions were not comprehended within the “true” spirit of § 501(a). Moreover, to place a narrow construction on the term “officer” might, as in this case, necessitate excluding from § 501 coverage, an individual who, while not a high union official, did play, as the record reveals, a significant role in the administration of local union affairs.

But beyond defendant’s arguably limited role as an officer pursuant to § 501(a), it is abundantly clear from the record that the defendant was a “key administrative” employee within the meaning of § 402(q) such that, on this account alone, he possessed a sufficient fiduciary obligation with respect to union funds and assets. Along with John White, Sr. and John White, Jr., defendant was an important and influential member of the union’s administrative staff. His responsibility for preparing cheeks, and for assisting in the collection of dues, constituted a significant role in the necessary performance of daily administrative functions. In view of the obvious importance of defendant’s role within Local 57, we will not now accept his plaintive claim that he was merely an insignificant clerical employee.

Thus, even under defendant’s narrow interpretation of § 501(c), as requiring complete modification by §§ 402 (q) and 501(a), his arguments provide little solace since both as an officer, pursuant to § 501(a), and as a key administrative employee, pursuant to § 402(q), defendant possessed the requisite fiduciary relationship with respect to his union necessary to permit application of § 501(c) to him.

We next turn to defendant’s additional contention that the evidence adduced at trial will not support his conviction. Initially, we must note that the alleged wrongdoing on the part of defendant is somewhat unique to prosecutions under § 501(c). Whereas most criminal actions brought pursuant to that section involve “affirmative” misconduct — generally in the form of either intentional falsification of union expense vouchers, see, e. g., United States v. Dibrizzi, 393 F.2d 642 (2d Cir. 1968); Colella v. United States, supra, improper application of union funds by union management, see, e. g., United States v. Boyle, 157 U.S.App.D.C. 166, 482 F.2d 755, cert. denied, 414 U.S. 1076, 94 S.Ct. 593, 38 L.Ed.2d 483 (1973); United States v. Silverman, 430 F.2d 106 (2d Cir.), modified per curiam on other grounds, 439 F.2d 1198 (2d Cir. 1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123 (1971), or illicit behavior approaching outright theft, see, e. g., United States v. Bryant, 430 F.2d 237 (8th Cir. 1970) — defendant here was essentially convicted of having “passively” received unauthorized salary increases and Christmas bonuses, knowing the same to have been unauthorized, and hence, illegal. However, as the Second Circuit has observed in a somewhat different context, “the reach of § 501(c) is not limited to union officers who engage in stealthy larcenies or devious embezzlements,” United States v. Dibrizzi, supra, 393 F.2d at 645. Considering that § 501(c) was designed essentially to protect general union memberships from the corruption, however novel, of union officials and employees, see United States v. Harmon, 339 F.2d 354, 357-358 (6th Cir. 1964), cert. denied, 380 U.S. 944, 85 S.Ct. 1025, 13 L.Ed.2d 963 (1965), we do not believe that the proscriptions of that section should be read to operate solely against those who violate its terms in an active manner. In our view, the willing acceptance of misappropriated union funds by a recipient who knows that such funds are unauthorized and illegal will constitute a violation of § 501(c). See United States v. Goad, supra; cf. Woxberg v. United States, 329 F.2d 284, 285-293 (9th Cir.), cert. denied, 379 U.S. 823, 85 S.Ct. 45, 13 L.Ed.2d 33 (1964). Consequently, if upon examination of the record, it appears that there was sufficient evidence to permit the jury to conclude beyond a reasonable doubt that the defendant improperly received union funds (in the form of unauthorized raises and bonuses), and if the evidence further permits the valid inference that defendant knew his receipt of such funds was unlawful, we think that his conviction should be sustained. In this regard, it must be kept in mind that the elements of defendant’s guilt may be supported entirely by circumstantial evidence, United States v. Stubin, 446 F.2d 457 (3d Cir. 1971), and that such evidence, including the fair inferences to be drawn therefrom, must be viewed in the light most favorable to the government. United States v. Bryant, supra, 430 F.2d at 240.

In its case-in-chief, the government introduced documentary evidence which clearly established that, on or about July 15, 1968, defendant began receiving a $35 per week salary increase, which raised his previously existing pay scale from a weekly gross of $125 to one of $160. Additionally, by comparable documentary and testimonial evidence, the government proved that in December of 1968, 1969 and 1970, the defendant received annual Christmas bonuses in amounts totalling $120, $125 and $200 respectively. The receipt of the salary increase and the bonuses constituted separate counts in the indictment upon which defendant was convicted. The government further introduced in evidence the amended Constitution of the International Union of Operating Engineers, by which Local 57 was governed. That document provided in part:

“Any and all diversion of funds from a Local Union to or for the personal benefit of individual members by way of gifts, additional compensation for benefits or services otherwise paid for, retroactive compensation for services not previously authorized and similar situations shall be illegal and void unless prior to the payment thereof such payment is specifically approved by the [Local’s] membership and is approved in writing by the [International] General President.”

Subsequent introduction of Local 57’s minute book for the period covered by the indictment revealed that neither defendant’s salary increase nor his Christmas bonuses were ever approved by the local’s membership or by the General President, as was required by the union constitution. Hence, such payments were, as a matter of unquestioned fact, “illegal and void.” Moreover, since, as earlier indicated, the record disclosed that defendant was an officer of Local 57, as well as an influential employee of the union with some twenty years of service outstanding, we think it quite reasonable for the jury to have inferred that defendant was aware of the constitutional requirements for approval of his pay increase and bonuses. However, defendant contends that, notwithstanding these facts, there was' no evidence admitted to show that he actually knew that his pay raise and bonus payments had not been properly authorized, and thus, that he lacked the requisite willfulness or guilty intent necessary to violate § 501(c). We disagree. Although there was no direct evidence of defendant’s knowledge that the payments were unauthorized, we think that this was inferable from the government’s other proof. In the first place, the union’s minute book indicated that defendant attended virtually every meeting of the general membership during the period covered by the indictment, including all meetings immediately preceding his July 15, 1968, raise and his December 1968, 1969 and 1970 bonuses. Since the constitution required that the general membership approve of these payments, and since his attendance at those meetings must have made it plain to him that no such approval was ever given or even considered, it was clearly reasonable for the jury to conclude that defendant did, in fact, know that the payments were improper and illegal. Secondly, the evidence establishes a close working relationship between defendant and the Whites, who effectively ran the union. To the extent that the evidence also suggested that the Whites knew, or must have known, that these and other payments were illegal, it was permissible for the jury to infer that defendant possessed the same knowledge. Thus, in our view, the evidence satisfactorily established that defendant, a union officer and employee, improperly received for his own benefit misappropriated and unauthorized union funds, knowing that his receipt of those funds was unlawful. Such evidence is, we believe, sufficient to sustain his conviction under § 501(c).

The remaining contentions raised by defendant have been carefully examined and have been found to be either clearly without merit, or at most, to constitute harmless error.

Affirmed.

      . Pursuant to tlie Constitution of the International Union of Operating Engineers, the essential functions of the Guard consist of “takfing] ; charge of the doors at meetings to see that none but members in good standing and with the quarterly password enter, . . . furnish [ing] the General President [with] full and complete information on any subject within his control ■ or knowledge when requested and . . . perform [ing] such other duties as are customarily incident to his office or which from time to time may be delegated to him by the Local Union.”

      . Section 501(a) states, inter alia, that “officers, agents, shop stewards and other representatives of a labor organization occupy positions of trust in relation to such organization and its members as a group.” These officials are vested with a statutory fiduciary responsibility to “hold [union] money and property solely for the benefit of the organization and its members and to manage, invest, and expend the same in accordance with its constitution and bylaws.” Section 501(a) is to some extent modified by’ § 402(q) so as to include within its terms “elected officials and key administrative personnel, whether elected or appointed . . ., but . . . not . . . salaried, non-supervisory professional staff, stenographic, and service personnel.”

      . Though the existence of a “fiduciary relationship” was held to be a fundamental attribute of embezzlement, and though the Colella court noted that Congress had “spelled out [and refined] its own definition” of this relationship in §§ 402(q) ¿and 501(a), it is by no means clear that the nature of the fiduciary obligations necessary to sustain a conviction for embezzlement under § 501(c) is strictly dependent upon §§ 402 (q) and 501(a). The Colella court had no occasion to formally face the issue of whether a union functionary whose responsibilities do not fall precisely within the terms of §§ 402 (q) and 501(a) could nevertheless be found to possess the requisite fiduciary relationship. Since resolution of this question is not directly necessary to our decision, we express no view upon it. But cf. Johnson v. Nelson, 325 F.2d 646 (8th Cir. 1963).

      . Although defendant has cited numerous cases in which union officials who, having breached their fiduciary obligations, have been convicted under § 501(c), see, e. g. United States v. Ferrara, 451 F.2d 91 (2d Cir. 1971), cert. denied, 405 U.S. 1032, 92 S.Ct. 1291, 31 L.Ed.2d 489 (1972) ; United States v. Stubin, 446 F.2d 457 (3d Cir. 1971) ; United States v. Silverman, 430 F.2d 106 (2d Cir.), modified per curiam on other grounds, 439 F.2d 1198 (2d Cir. 1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123 (1971) ; United States v. Dibrizzi, 393 F.2d 642 (2d Cir. 1968), it is clear from a close reading of these cases that none of them stand for the broad proposition that a breach of fiduciary responsibility is either a necessary or essential element of conviction under § 501(c). “The terms used in [§ 501 (c) ] retain their common law meaning.” Woxburg v. United States, 329 F.2d 284, 290 (9th Cir.), cert. denied, 379 U.S. 823, 85 S.Ct. 45, 13 L.Ed.2d 33 (1964). Though common law embezzlement “carries with it the concept of a breach of fiduciary relationship,” Colella v. United States, supra, 360 F.2d at 799, neither “stealing,” “abstraction,” nor “conversion” do. We see no reason grounded in policy or logic to extend to these terms a requirement of breach of fiduciary responsibility.

      . John White, Sr. was the Business Manager of Local 57. His son, John White, Jr. was the President of the Local and also served administratively as its Business Agent. Initially, both were indicted along with the defendant for violations of § 501(c). However, prior to trial, John White, Sr. became legally incompetent, and John White, Jr. died of natural causes.

      . Additionally, defendant assisted John White, Sr. in determining the assignment of union members to the various jobsites and dealt on a regular business basis with both the union’s employers and its accountants.

      . This pay increase was made retroactive to January 1, 1968. Accordingly, on' or about July 18, 1968, defendant also received a payment of $980 to cover the period from January 1, 1968, through July 15, 1968.

      . Apparently, the decision to appropriate union funds to increase defendant’s salary and award him a Christmas bonus was made exclusively by John AVhite, Sr., the Business Manager of Local 57, under whom defendant had long been employed.


author: LAY, Circuit Judge.

text:
    CHARLOTTE AIRCRAFT CORPORATION, a corporation, Appellee, v. PURDUE AIRLINES, INC., a corporation, and Stephens, Inc., a corporation, Appellants.
    No. 73-1831.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 12, 1974.
    Decided June 7, 1974.
    Rehearing Denied July 2, 1974.

      John C. Calhoun, Jr., Little Rock, Ark., for appellants.
    Thomas E. Downie, Little Rock, Ark., for appellee.
    Before VOGEL, Senior Circuit Judge, and LAY and ROSS, Circuit Judges.
   LAY, Circuit Judge.

Charlotte Aircraft Corporation brought suit against Purdue Airlines, Inc., and its principal stockholder, Stephens, Inc., to recover a commission allegedly due for its efforts in arranging the sale of a DC — 9 jet aircraft from Purdue Airlines to Inex Adria, a Yugoslavian airline. The trial court awarded plaintiff a commission of 3%% on the sale price resulting in a judgment of $160,683.27, with prejudgment interest at the rate of 6% per annum. The defendants appeal. We affirm the judgment of the district court.

A brief analysis of the facts set forth in the district court is necessary.

Purdue Airlines was a private supplemental air carrier associated with Purdue University in Lafayette, Indiana. In 1969, Purdue purchased and placed in use two DC-9 jet aircraft. It was unable to realize a profit on the operation of these aircraft, however, and by early 1971, it had decided to dispose of them.

Charlotte Aircraft Corporation is a North Carolina corporation specializing in the purchase and sale of aircraft and aircraft parts. When it became known in the airline industry that Purdue had placed its planes on the market, Harold Caldwell, the principal shareholder of Charlotte and its president, began a series of contacts with Purdue through the Stephens company which was handling the sale of the planes. On February 19, 1971, Caldwell wrote Purdue that he wanted his company to act as agent in the sale of the aircraft, and quoted a commission of 2%%. On April 21, 1971, Caldwell sent a telegram to Purdue quoting specific prices for the planes of $3,900,000 and $4,000,000 and asking any sums in excess of these prices as his commission. This telegram named Inex Adria as the potential buyer. On April 23, Stephens responded by agreeing to those terms.

Thomas Braun and Badr Halwany, joint venturers with Charlotte Aircraft, had been responsible for the initial contact with Inex Adria and, while in Yugoslavia in late April of 1971, they had entered into two tentative, alternate contracts with Inex. One of the contracts was a long-term lease agreement and the other provided for the purchase of a single aircraft, an extra engine and spare parts for $4,445,000. Prior to the execution of these agreements, Braun had received a letter from Inex expressing interest in arranging a purchase of one aircraft alone for $4,200,000. On April 25, Caldwell arranged a meeting in Miami, Florida, between officials of Stephens, Braun and Halwany, and himself to discuss the Inex proposals. After arriving in Miami but before the meeting with Braun and Halwany, Stephens, Inc., executed an agreement appointing Charlotte Aircraft its exclusive agent in any dealings with Inex. This agreement contained no mention of compensation.

After the meeting in Miami, relations between the personnel from Stephens and Caldwell and his partners became increasingly strained. Stephens was not attracted by the possibility of a sale to a foreign airline on credit terms and Inex Adria could not afford a cash transaction. Nonetheless, Caldwell flew to New York to attempt to arrange some form of independent financing. These negotiations were begun with two alternatives in mind: (1) a purchase by Inex financed independently from Purdue, or (2) a purchase by Charlotte for resale to Inex. Toward this latter possibility, Caldwell had secured a short-term option to purchase both planes at a very reasonable price before leaving Miami.

On May 6, one of the principals of Inex Adria contacted Mr. Millwee of Stephens, Inc., directly and asked for a meeting apart from the Charlotte group. At this meeting, it was agreed to arrange the sale without the further assistance of Charlotte. Charlotte was thereafter denied participation in the negotiations. The plane was eventually sold to Inex for the sum of $3,900,000. An extra engine and a quantity of spare parts were also sold. On January 7, 1972, Charlotte made formal demand upon the plaintiff for 5% of the total purchase price of $4,322,189.00 (Purdue’s agreed price with Inex on the plane and parts) or $216,109.45. When this demand was refused this action was filed.

In the course of its memorandum opinion, the district court made the following specific factual findings:

That a valid, binding exclusive agency contract was in existence; that there had been no express agreement as to commission but that the defendants impliedly agreed to pay a reasonable sum; that no attempt was made to revoke this exclusive agency; that Stephens agreed with Inex to bypass Charlotte as its agent; that Purdue was unaware of the terms arranged by Braun and Halwany for the sale of the aircraft but that Charlotte was under no obligation to reveal those terms since it was also interested as a potential buyer; and that a reasonable commission would be 3%% of the actual price realized by Purdue in the sale of the plane.

The defendants urge.on appeal:

(1) That if a commission is due, it must be figured in accordance with the “net price” arrangement' of the original agreement formed by the telegrams of April 21 and April 23,1971;

(2) That plaintiff violated its fiduciary duty by acting as both seller and purchaser;

(3) That there was no factual basis for placing the commission at 3%%; and

(4) That prejudgment interest should be denied since the debt was not liquidated.

The Net Price Listing

On appeal the defendants argue that the district court erred in awarding any commission on the sale since the listing was a “net price” listing at a price of $3,900,000. Since the plane was ultimately sold for exactly that price, Purdue reasons, no commission was due. The defendants’ insistence that a net price listing had been made was based upon an exchange of telegrams between the parties in April, 1971.

The exclusive agency agreement was executed by the parties on April 25, 1971, two days after this exchange. It contained no mention of the amount of commission which would be earned upon sale. The district court found, in the absence of any specific terms relating to a commission, that there existed an implied agreement “that the plaintiff would be paid a reasonable fee based upon the work and services performed by the plaintiff in accordance with the customs and standards prevailing in the industry of buying and selling transport-type aircraft.” The court additionally noted: “The results reached by the Court, however, would not be different had the Court found no exclusive agency agreement but was proceeding simply upon a quantum meruit theory.”

It is urged by the defendants that the net price agreement accepted by Purdue on April 23, 1971, became a part of the exclusive agency agreement of April 25, 1971. Even if this be true, however, the defendants conveniently ignore the fact that they excluded Charlotte’s interests when they agreed upon the final sale price of the plane. The defendants would argue that a seller may place property for sale with an agent on a net price basis, thereafter exclude the agent from the negotiations leading to a sale, and then sell at net or below net price and avoid the obligation to pay a commission. We agree with the plaintiff that this would be a harsh and unjust rule to invoke. It is the law in Arkansas as elsewhere that when property that is subject to an exclusive agency agreement is sold, the broker is entitled to a commission even though the sale is made without his assistance. See Halbert v. Block-Meeks Realty Co., 227 Ark. 246, 297 S.W.2d 924 (1957). Dealing with a similar “net price contract,” a California appeals court observed in

Hall v. Douglas Aircraft Co., 23 Cal.App.2d 498, 73 P.2d 668 (1937):

The more just and reasonable rule is that, if the seller changes the fixed price so that the agreement can no longer operate, the seller is obligated to pay the reasonable value of the services rendered by the agent in furthering the consummation of the sale.

Id. at 673.

We agree.

The Commission

The defendants also assert that the commission awarded by the district court is excessive. In the early stages of their dealings together, Charlotte had indicated that it would accept a commission of 2%% upon the sale of the plane in question. The defendants argue that this is the best evidence of a reasonable commission since the plaintiff actually offered to work for that amount. Charlotte answers that the figure of 2%% was mentioned in contemplation of a relatively simple sale to-a domestic American or Canadian airline and that the sale to Inex required substantially more effort on its part, justifying a higher commission. The evidence received by the court consisted of the following:

(1) The contents of a letter from Harold Caldwell to Purdue officials dated February 19, 1971. The body of the letter said simply:

We have quoted your DC9-32 aircraft to Air Canada and Delta Airlines and, in accordance with our past discussions, would expect a commission of 2.5% of the gross dollar volume in event of sale or trade.

(2) The testimony of Harold Caldwell to the effect that:

(a) His firm had gross sales of 25 million dollars in 1971 and earned commissions of 1 million dollars.
(b) That when financing is not involved and there are no sub-agents, a 2%% commission is customary.
(c) That more expense is involved in a foreign deal.

(3) The testimony of Jordan Greene, an attorney specializing in aviation sales, who said:

(a) That in a sale involving sub-agents, the normal commission would be at least 5%.
(b) That when financing is not involved, many sales are made for a commission of less than 5%.

(4) The testimony of Lawrence Levine, another attorney specializing in aircraft deals, who testified that the minimum commission in cases where the agent brings the parties together and arranges financing, whether that financing is used or not, is 5% and could go as high as 8%.

On the basis of the evidence adduced we find sufficient proof to sustain the district court’s award of 3% % as a reasonable commission. At least, we cannot say on the present record that the finding is clearly erroneous.

Fiduciary Duty

It is urged that the plaintiff violated its fiduciary duty in failing to disclose that it planned to purchase the aircraft at Purdue’s asking price ($3,900,000 or below) and resell the plane to Inex for $4,200,000. The record indicates that Charlotte contemplated this course of dealing because Inex was having difficulty in making a cash transaction and as a foreign concern was considered a poor credit risk. The district court found that Charlotte was under no obligation to Purdue in this situation to reveal Inex’s tentative offer to purchase the plane for $4,200,000. We must respectfully disagree.

Section 390 of the Restatement (Second) of Agency provides:

An agent who, to the knowledge of the principal, acts on his own account in a transaction in which he is employed has a duty to deal fairly with the principal and to disclose to him all facts which the agent knows or should know would reasonably affect the principal’s judgment, unless the principal has manifested that he knows such facts or that he does not care to know them.

We find that Charlotte did owe a duty of full disclosure when negotiating on its own behalf and that it failed in this duty. As stated in Pittsburgh Equitable Meter Co. v. Paul C. Loeber & Co., 160 F.2d 721 (7th Cir. 1947):

“The rule well established in equity is that the relation existing between a principal and agent for the sale of property is a fiduciary one, and the agent, in the exercise of good faith, is bound to keep his principal informed on all matters that may come to his knowledge pertaining to the subject matter of the agency. He may not purchase (our emphasis) his principal’s property except upon the fullest disclosure of all matters within his knowledge which may affect its value. * -x- * This is the general rule.”

Id. at 725.

See also Greer v. Craig, 165 Ark. 209, 263 S.W. 400 (1924). Cf. Gessleman v. Phillips, 110 Neb. 416, 193 N.W. 750 (1923). However, this failure did not give the defendants the right to bypass Charlotte in the final negotiations. See Pittsburgh Equitable Meter Co. v. Paul C. Loeber & Co., supra. It is significant here that Charlotte did not go through with the action contemplated. It did not, in fact, purchase the property. Cf. Pitzer & Smith v. Pittman, 253 S.W. 306 (Tex.Civ.App.1923).

The defendants also urge that Charlotte breached its duty generally, apart from any intention to purchase the plane itself, by failing to inform them that Inex was willing to pay $4,200,000 for the plane. This we agree was information that should have been disclosed by Charlotte, acting as agent. See Restatement (Second) of Agency § 381. See also Seavey, Agency § 143. However, the record does not support the finding that Charlotte breached its duty in this respect. The testimony of the defendants’ witness Robert Millwee was to the effect that he sought the information for the first time in Washington on the morning of May 6, 1971, at which time it was refused. It is clear from his testimony, however, that he made his request in conjunction with a demand that Charlotte accept what it felt to be a reduced commission or suffer termination of its agency. In the afternoon of the same day, he testified, he was given the information. The only time, then, that the defendants expressed any interest in having the information, they coupled their request with an impermissible demand and, despite that, the information was ultimately given.

We conclude the only violation of fiduciary duty which occurred related to Charlotte’s attempt to acquire the airplane for resale without disclosure of the existing offer from Inex. However, Charlotte did not acquire the aircraft and its mere contemplation of this action could not have constituted a basis for refusing to award the commission.

Prejudgment Interest

The district court awarded the plaintiff a commission of 3%% with interest on the judgment “from January 7, 1972, at the rate of 6 per cent per annum as provided by law.” January 7, 1972, is the date on which Charlotte submitted a bill for its services. That bill claimed a commission of 5% for a dollar amount which exceeded the award of the court by $55,426.18. The defendants argue that prejudgment interest should not have been awarded because the claim involved was unliquidated and could not have been ascertained from the face of the agreement nor by reference to a well-established market value before judgment.

The Arkansas Supreme Court has recognized in Loomis v. Loomis, 221 Ark. 743, 255 S.W.2d 671 (1953) :

The familiar rule that interest is not allowed on unliquidated demands does not mean that the defendant must in every instance know before the trial the exact amount he must pay if he loses.

Id. at 673.

In White & Black Rivers Bridge Co. v. Vaughan, 183 Ark. 450, 36 S.W.2d 672 (1931), an attorney brought an action to recover legal fees for services rendered. He sought $3,823.58 and received a verdict for $2,750.00 plus interest from the date on which he had first demanded payment. The Arkansas court’s discussion strongly indicates that interest was properly allowable in the present case. In approving the award of prejudgment interest the Arkansas court observed:

In Prager v. New Jersey Fidelity & Plate Glass Ins. Co., 245 N.Y. 1, 156 N.E. 76, 52 A.L.R. 193, it was held that a claim for legal services resting on quantum meruit draws interest to be computed from the date of the demand. It was further held that a demand for compensation for legal services on quantum meruit greatly in excess of the amount determined to be due does not prevent the adding of interest to the award. The opinion in that case is very comprehensive, and in a case note on page 197 of 52 A.L. R., it is stated as a general rule that interest on a claim for legal services is recoverable from the time it becomes due and payable and that this is the time when the demand for payment is made.
Again in Miller v. Robertson, 266 U.S. 243, 45 S.Ct. 73, 69 L.Ed. 265, the court said that one who has had the use of money owing to another may justly be required to pay interest from the time it lawfully should have been paid.

Id. at 675.

See also Swafford v. Sealtest Foods, 252 Ark. 1182, 483 S.W.2d 202 (1972).

Judgment affirmed.

      . A net price listing is one in which the seller places the property for sale with the agreement that he will accept a certain sum and the agent’s commission will be all sums in excess of that amount. See Lane v. Smith, 179 Ark. 533, 17 S.W.2d 319 (1929).

      . On April 21, 1971, Charlotte wired Purdue the following:
      Charlotte Aircraft’s customer, Inex Adria Airways of Yugoslavia, is prepared to buy one dr two DC-9-32’s along with spare engines and parts. CAC’s commission on the sale is all monies over and above $3,900,000 on aircraft # N393 and all monies over $4,000,000 on aircraft # N394 and 10% on the sales price of any parts and spare engines sold to Inex Adria Airways during the next twenty four months for DC-9 type equipment.
      Purdue replied on April 23, 1971:
      We agree to accept $3,900,000 for DC-9-32 N393 PA and/or $4,000,000 for DC-9-32 N394PA net to Purdue Airlines Inc. P O B Lafayette, Indiana in present condition subject to warranties still in effect from original manufacturers with current air wotxxx [sic] worthiness certificates subject to prior sale.


author: JAMESON, District Judge:

text:
    A/S ATLANTICA et al., M/V HOEGH TRAVELLER, Plaintiffs-Appellees, v. MORAN TOWING & TRANSPORTATION CO., INC., Tug Alice A. Moran, Inc., and TUG CLAIRE A. MORAN, in rem, Defendants-Appellants.
    No. 803, Docket 73-2404.
    United States Court of Appeals, Second Circuit.
    Argued April 22, 1974.
    Decided June 4, 1974.
    MacDonald Deming, New York City (Haight, Gardner, Poor & Havens, New York City, on the brief, John J. Reilly, New York City, of counsel), for plaintiffs-appellees.
    Kenneth H. Volk, New York City (Burlingham, Underwood & Lord, Eugene Underwood, New York City, on the brief), for defendant-appellant Moran.
    Before LUMBARD and HAYS, Circuit Judges, and JAMESON, District Judge.

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

   JAMESON, District Judge:

This is an appeal from a judgment in favor of plaintiffs-appellees (Atlántica), owners of the vessel M/V Hoegh Traveller in an admiralty action to recover damages sustained by the Traveller while undocking at Pork Newark with the assistance of the Tug Claire A. Moran, owned by defendant-appellant (Moran).

Statement of Facts

On the morning of February 2, 1966 the Traveller completed loading a cargo of scrap metal at Berth 27, Port Newark. At the request of Atlantica’s local agent, Otto Fuerst, Moran was hired to furnish tug assistance in undocking and the tug Claire A. Moran was dispatched, for this purpose.

At about 12:00 P.M. the tug Moran proceeded to the vicinity of the Traveller. The pilot, Captain Robert C. Nielson, observed and estimated the draft and length of the vessel. On the basis of his observations he formulated “a basic plan” for undocking, that is, to “back her away from the dock, back around” in the Branch Channel and then head out into Newark Bay. Nielson testified that the plan was, however, “subject to change when I get aboard the bridge of the ship to find out what the conditions are, how long the ship is, how deep it is”.

At 12:45 P.M. Nielson boarded the Traveller to serve as its undocking pilot. When he arrived on the bridge he met the vessel’s master, Captain Sverre I. Yksnoy, who provided Nielson with the exact draft of the vessel, 28 feet, six and one-half inches forward and 29 feet, seven and three-quarters inches aft, and its length at water line, 547 feet. Nielson then explained that he intended to turn the ship in the Branch Channel, which is 600 feet in width and dredged to a depth of 35 feet at mean low water. On the day in question the height of the water was three feet above datum, giving a total depth of 38 feet.

Pursuant to Nielson’s instructions the tug Moran was made fast to the port bow of the Traveller. Nielson ordered the tug to push on the port bow, and at the same time the Traveller’s engines were put astern. The first attempt to move away from the berth was unsuccessful because the loaded Traveller was lying in a trough of accumulated bottom material. Nielson ordered the engines ahead and then backed again. The vessel came free and moved astern and away from her berth.

When the bow of the Traveller cleared the end of the wharf, Nielson ordered the rudder hard right and the engines slow ahead. With the tug pushing at full power on the port bow the Traveller began pivoting in the Branch Channel. When the Traveller was half way around heading straight across the channel a loud bang was heard coming from the direction of the stern, where the steering engine room is located. The Traveller’s smooth deck log states: “[W]e could feel a bump and the helm was torn out of the hands of the helmsman”, who reported that he had lost control of the rudder.

Due to the loss of the Traveller’s steering ability Nielson determined that another tug would be needed to maneuver the vessel. Upon arrival of the second tug the crippled vessel was returned to its berth. Nielson accompanied Captain Yksnoy to the steering engine room, where they observed “lots of broken parts” of the steering mechanism, including two three-inch steel rams that had been snapped off. The following day Atlántica employed a diver to inspect the Traveller’s rudder. He “found some heavy clay on the after end of the rudder about two feet high from the bottom”. As to the cause of the damage to the steering mechanism, Nielson testified that it was “one of three things. Either that we hit a submerged object or we run up against the bank or there was a latent defect in the steering ram”.

With respect to the propriety of attempting to turn the 547 foot Traveller in the 600 foot Branch Channel, Nielson testified that on a number of occasions he had turned larger vessels in the Branch Channel, using only one tug, without mishap. On the other hand, Atlantiea’s expert, Captain Arthur Fertig, a licensed master and maritime consultant, testified that due to the length of the Traveller and the width of the Branch Channel it was “most imprudent” to attempt the turn, and that the Traveller should have been backed into the wider Main Channel and the turn made there.

Fertig and Nielson agreed that two tugs would be required to turn the vessel in the Main Channel to overcome the effect of the Main Channel current. In Fertig’s opinion the tugs should have “12 to 15 hundred horsepower in each tug”, whereas the Moran tug had only 700 horsepower. Fertig testified further. that the tight Branch Channel turn should not have been attempted with less than two tugs, because the vessel had to be controlled “to a point of exactness”. Even with two tugs, however, he considered the Branch Channel turn “imprudent” and “not good seamanship”. Captain Yksnoy testified that Nielson had represented the Branch Channel to be 660 feet in width, that if he had known it was only 600 feet he would have objected to turning the vessel with only one tug, and that in any event he considered it “risky to turn the ship [in the Branch Channel], even with two tugs”.

Opinion of the District Court

The district court found that Moran was “negligent in failing to provide two tugs of adequate power to assist the Hoegh Traveller undock and in formulating and attempting to carry out an imprudent plan by which the Hoegh Traveller was to undock and proceed to sea”. The court concluded that it was not possible to turn the ship in the Branch Channel “with any reasonable assurance of safety”, although there was “substantial evidence that it would have been reasonable for the pilot to have taken the vessel backwards to the main channel and turn her around at that juncture”. Noting that “there was some conflict as to whether the Hoegh Traveller actually struck the bank”, the court found that “the weight of evidence is that the rear end of the ship likely hit the bank”, and that this was a result of Moran’s negligence.

Moran contended in the district court, as it does here, that the pilotage clause in the written towage contract relieved Moran of liability, even assuming it was negligent. This clause provides :

“When any licensed pilot or a captain of any tug furnished to or engaged in the service of assisting a vessel making use of or having available her own propelling power, goes on board such vessel, it is understood and agreed that he becomes the borrowed servant of the vessel assisted and her owner or operator for all purposes and in every respect, his services while so on board being the work of the vessel assisted and not of the tugboat company and being subject to the exclusive provision and control of the ship’s personnel.”

Noting that “such clauses have been narrowly construed against towing com.panies” the court held that it “cannot be used as a defense where as here a negligent plan is put into operation and the pilot boards and navigates the vessel pursuant to the preconceived plan”.

Contentions on Appeal

Appellant Moran contends that (1) there is no evidence to support the district court’s conclusion that the Traveller “likely hit the bank”; (2) appellees failed to prove negligence; and (3) in any event appellant cannot be held liable under the pilotage clause. Since we conclude the pilotage clause precludes recovery, it will not be necessary to consider the other contentions.

Pilotage Clause

The standard pilotage clause involved here is nothing more than a contractual application “of the well-established rule that when one puts his employee at the disposal and under the direction of another for the performance of service for the latter, such employee while so engaged acts directly for and is to be deemed the employee of the latter and not of the former.” Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 295, 53 S.Ct. 135, 136, 77 L.Ed. 311 (1932). Appellees do not challenge the validity of the pilotage clause but argue that it is not applicable under the facts of this case. Specifically it is contended that the pilotage clause affords no protection for any negligence of the dispatcher in failing to provide two tugs of adequate power or for acts of the pilot before boarding in formulating a negligent undocking plan.

It was Captain Fertig’s opinion that the undocking of the Traveller should not have been attempted with less than two tugs of 1,200 to 1,500 horsepower each. Daniel J. Nelson, Jr., a dispatcher for Moran for 16 years, testified that the initial decision as to the number and size of the tugs rests with the dispatcher, and that in his opinion two tugs should have been dispatched to assist the Traveller in undocking. On the other hand, Nelson also testified that the dispatcher’s duty is “only assigning the equipment to assist” the pilot, and that if the pilot, as “the man in control at the scene”, orders additional tugs, his judgment controls and the dispatcher will provide the tugs requested. The final responsibility for adequate tug power rested upon the pilot, and any negligence in this regard must be attributed to Nielson rather than the dispatcher.

The district court recognized that it was the pilot’s responsibility to provide adequate tug power but concluded “that pilot Nielson’s preconceived plan of turning the vessel in the Branch Channel and in not supplying tugs of adequate power was negligent and in breach of Moran’s warranty of workmanlike service” and “that the pilotage clause in Moran’s towing contract is not applicable as a defense.”

While there is authority to support the conclusion that failure of a pilot to request adequate tug power is a breach of the warranty of workmanlike service implied in the towage contract and outside the pilotage clause, this is not the law in this circuit. The contention was rejected by this court in Transpacific Carriers Corp. v. Tug Ellen F. McAllister, supra, where the district court had held that “The negligent act of the pilot * * * was primarily his having insufficient tug power available to assist in the docking”, and that “the pilotage clause [does] not seem to embrace this act of negligence.” 336 F.2d at 373-374. This court reversed, holding that the negligence which caused the accident was not the pilot’s failure to order a second tug, but was in fact “in [the pilot’s] handling the ship in the way he did with the one assisting tug”. We held that the “docking pilot’s acts were within the terms of the pilotage clause”. The same principle is applicable here.

We turn now to Atlantica’s contention that the accident resulted from Nielson’s formulation of a negligent plan before boarding and that the implementation of the preconceived negligent plan is outside the pilotage clause. A similar contention was rejected in Birkenstein, supra, where the owner of the assisted vessel argued that the pilot should have decided before going on board that it was unsafe to proceed in the light of then existing conditions of fog and limited visibility. In answering this contention Judge Friendly said in part:

“This places the duty of decision too early; there was no reason why Cray [the pilot] should have formulated a fixed view until he had all the facts. Moreover, his failure to formulate a view was without consequence'; what mattered was what he did when he boarded the Birkenstein. If Cray then neglected to make sound recommendations, it was a failure, after he went on board, ‘in respect of the handling of such vessel,’ and thus within the pilotage clause.” 207 F.Supp. at 506.

Judge Friendly suggested “it was better to postpone decision until Cray could talk things over with the master and others on board” and that “what mattered was what Cray did, not what he had decided or failed to decide to do”. Id. at 509.

After quoting from the opinion in Birkenstein and noting that a “similar fact situation was before the court”, this court said in Transpacific Carriers:

“From the moment the docking pilot took over the responsibility of docking the ship, he was giving orders and was handling it. He was aware of the power of his tug, the strength of the current, the time before slack water and the character of the area in which he had to maneuver. It was his decision to back out into the channel; his decision to bring the ship broadside along the end of the dock; and his decision in the light of all factors influencing the docking operation to do this in the belief that the Ellen F. McAllister was adequate for the purpose. He was clearly ‘handling’ the ship and ‘giving’ orders.” 336 F.2d at 374. . .

It is true, as appellees argue, that Nielson had formulated a “basic plan” for the Branch Channel turn prior to boarding the Traveller. Presumably that would be true with respect to most docking and undocking operations. The final decision, however, was made and the plan implemented after Nielson was aboard and “handling” the vessel and “giving” orders.

While Nielson testified that upon the basis of his observations of the Traveller, he had “a fairly good idea” as to its length and draft and “knew what [he] needed to know for this maneuver before [he] went on board”, he did not know the vessel’s exact length and draft prior to boarding and his plan was “subject to change when I get aboard the bridge of the ship to find out what the conditions are, how long the ship is, how deep it is”. On boarding he questioned the captain as to “the particulars of the ship, whether the ship was ready, what was the length and her draft”. Upon receipt of this information he informed the captain that he had decided to turn the vessel in the Branch Channel. With several factors crucial to Nielson’s plan to be determined on board, it is clear that his preconceived plan was far from complete when he boarded the vessel. If he acted negligently in making his final decision and in the subsequent implementation of the plan, his negligence was within the scope of the pilotage clause.

Atlantica’s reliance upon Pennsylvania Railroad Co. v. The S. S. Beatrice, 161 F.Supp. 136 (S.D.N.Y.1958), aff’d, 275 F.2d 209 (2 Cir. 1960) and Petition of Marina Mercante Nicaraguense, S. A., 364 F.2d 118 (2 Cir. 1966), cert. denied, 385 U.S. 1005, 87 S.Ct. 710, 17 L.Ed.2d 544 (1967) is misplaced. In Beatrice it was held that the pilotage clause “must, of course, be strictly construed against the towing company and should be given no broader interpretation than its language clearly requires”, 161 F.Supp. at 149, but there was no suggestion that the implementation of a negligent plan was outside the clause. Marina Mercante states that the tug owner is responsible “for negligent acts of [the pilot] before boarding” the assisted vessel, 364 F.2d at 122 at n. 5, but negligent acts are to be distinguished from negligent plans which are not finalized or implemented until after the pilot is on board.

Reversed and remanded for entry of judgment in favor of defendants.

      . The trial, before the court without a jury, was limited to the issue of liability. The opinion of the district court is reported at 360 F.Supp. 1225.

      . Nielson testified that his estimate of the vessel’s draft “could have been off maybe three or four feet on the stern” and that the estimate of length “could have been off maybe 50, 60 feet”.

      . In holding that a towage company was not liable for the negligence of tug captains who became the servants of the vessel’s owners, the Court noted that the owner of the vessel “was under no compulsion to accept the terms of [tower’s] pilotage clause” and con-eluded that -“It would be unconscionable for [the owner of the vessel] upon occurrence of a mishap to repudiate the agreement upon which it obtained the service.” 287 U.S. at 294-295. See also Santa Fe, P. & P. Ry. Co. v. Grant Bros. Co., 228 U.S. 177, 188, 33 S.Ct. 474, 478, 57 L.Ed. 787 (1913) Transpacific Carriers Corp. v. Tug Ellen F. McAllister, 336 F.2d 371 (2 Cir. 1964), where this court suggested that “[h]ad the ship owner wished protection against the type of damage here suffered it might well have secured it at an appropriate rate”, but “[li]aving accepted towing services under an agreement providing for certain limitations of liability, libelant is not entitled to have this court rewrite the contract and impose liabilities not bargained for.” Id. at 375-376.

      . In addition, Nielson testified that it was his “prerogative” to request additional tugs “if at any time during a docking or undocking maneuver” he felt that “more power or different power” is necessary.

      . See Farrell Lines, Incorporated v. Birkenstein, 207 F.Supp. 500, 508 (S.D.N.Y.1962). Judge Friendly noted that “One possible basis of liability would be that Moran’s despatcher should have instructed Cray [the pilot] not to undertake the navigation of Gowanus Bay under the conditions prevailing without having the [tug] James Moran actually at hand or at least being certain that she or some other tug, in addition to the Pauline, would be available by the time the Birkenstein reached 35th Street, where the Bay narrows and radar difficulties might be anticipated.” This basis of liability was rejected upon the grounds that “the Towing Contract does not indicate by its terms that Moran undertook so heavy an obligation and the record is barren of evidence of any custom or practice that the despatclier, or Moran’s head office generally, assumed, or was required by express or implied warranty to assume responsibility for such detailed supervision of docking operations of which supposedly competent masters and tug captains were in charge.”

      . See People of State of California v. The Jules Fribourg, 140 F.Supp. 333, 340 (N.D.Cal.1956); Publicker Industries v. Tugboat Neptune Co., 171 F.2d 48, 49 (3 Cir. 1948); and American South African Line, Inc. v. Sheridan & Company, Inc., 1936 A.M.C. 287 (E.D.Pa.1935).

      . Appellees’ argument and the decision of the district court that the implementation of a preconceived negligent plan is outside the pilotage clause finds support in American South African Line, Inc. v. Sheridan & Company, Inc., supra, but its holding is contrary to the rule in this circuit established by Birkenstein and Transpacific Carriers.


author: COFFIN, Chief Judge,

text:
    Werner C. VON CLEMM et al., Plaintiffs, Appellants, v. Roman Acosta BANUELOS et al., Defendants, Appellees.
    No. 74-1036.
    United States Court of Appeals, First Circuit.
    Heard April 3, 1974.
    Decided June 3, 1974.

      Charles B. Swartwood, III, Worcester, Mass., with whom Mountain, Dearborn & Whiting, Worcester, Mass., was on brief, for plaintiffs, appellants.
    Bruno A. Ristau, Atty., Dept, of Justice, with whom Irving Jaffe, Acting Asst. Atty. Gen., James N. Gabriel, U. S. Atty., and Morton Hollander, Atty., Dept, of Justice, were on brief, for defendants, appellees.
    Before COFFIN, Chief Judge, MeENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge,

Appellant began his long and arduous relationship with the Alien Property Custodian and the federal judicial system in the year 1941. Since that time his case has been scrutinized by judges and administrators at epic length. It falls to us to decide whether he has received the consideration which is his due or whether another round of judicial examination is called for. We hold that review of the administrative decision under Section 32 of the Trading with the Enemy Act (the Act), 50 U.S.C.App. § 1 et seq. is foreclosed to the appellant; the district court properly dismissed the complaint.

Through all these years appellant’s objective has been to recoup the value of seized items which included six packages of diamonds and two hundred seventy packages of synthetic and semi-precious stones, sold by the Alien Property Custodian, sometime subsequent to their vesting in 1945, for well over one million dollars.I.

The history of appellant’s business transactions is complex. It is set forth in Von Clemm v. Smith, 255 F.Supp. 353 (1965). For our purposes it is sufficient to note that, in 1938, appellant, an American citizen born in Germany, undertook to import jewels and other items from Europe under the corporate name Pioneer. He made partial payment in blocked marks which could be obtained at a discount. This commercial enterprise was potentially limited by the Presidential freezing orders of April and May 1940. Executive Order 8389 regulated trade with countries which had been overrun by German armed forces including Denmark, Norway and the Low Countries. Appellant’s trade in Belgian and Dutch diamonds was threatened, but, without obtaining the requisite treasury licenses, he arranged a complicated subterfuge for importing the diamonds through Germany. There was persuasive evidence that these transactions, prior to the outbreak of war, involved close contact with and approval by the German government, and indeed that they were for the benefit of that government. See 255 F.Supp. at 362-363. One of the diamond shipments, arranged through intermediaries, cleared customs. This transaction led to appellant’s prosecution and conviction for conspiracy to import under a false declaration that the diamonds were of German origin, in violation of the freezing orders and therefore of the Act, and of 12 U.S.C. § 95, affirmed in United States v. Von Clemm, 136 F.2d 968 (2d Cir.), cert. denied, 320 U.S. 769, 64 S.Ct. 81, 88 L.Ed. 459 (1943). Other shipments similarly arranged were seized by customs and are the crux of this suit.

Upon the finding by the Custodian that the property was owned beneficially or directly be enemy nationals, the property was seized and vested as authorized by the Trading with the Enemy Act, 50 U.S.C.App. § 5. The Act itself established the means to appeal such a determination. The routes provided for appeal are alternative routes. One or the other (but not both) is available to each claimant. Section 9(a) of the Act provides that anyone not an “enemy” as defined therein may seek administrative return of the property and sue in equity in a federal district court. Section 32(a) indicates that for those ineligible for Section 9(a) relief there is exclusive administrative recourse.

In 1959, after a denial of return of proceeds by a hearing examiner for the Office of Alien Property, appellant filed suit for return of the property under Section 9(a). The statutory scheme implicitly requires that the court determine de novo controverted issues. The liminal issue, upon which appellant’s right to § 9(a) relief depended was whether or not he was an “enemy” or an “ally of an enemy” under the Act. The district court held a six week trial, directed, in part, toward resolution of this dispute. Appellant was affirmatively shown to have been an agent of the German government until the outbreak of hostilities. The court concluded that in light of his prior conduct, and, in its view,, appellant’s failure to show that he had discontinued his relationship with the German government after the outbreak of war, he had failed to prove that he was not an agent of an enemy for purposes of the Act. Under § 9(a) recourse to judicial remedy is limited to those not “enemies” or “allies of an enemy”. The court, therefore, dismissed the action for want of jurisdiction. Von Clemm v. Smith, 255 F.Supp. 353 (S.D.N.Y.1965), aff’d, 363 F.2d 19 (2d Cir. 1966), cert. denied, 385 U.S. 975, 87 S.Ct. 502, 17 L.Ed.2d 438 (1966).

Appellant then pursued the route left open to those not qualified for § 9(a) relief. He pursued administrative appeals until March 22, 1971 when the Attorney General issued an order disallowing the claim as “not in the interest of the United States”. Within the meaning of § 32(a)(5) of the Act, this last avenue led appellant to this court where he seeks to appeal the administrator’s determination. The district court dismissed the complaint for want of subject matter jurisdiction. The court reasoned that Section 7(c) of the Act limits judicial review to claims filed pursuant to Section 9(a). Since, by judicial decision, appellant was eligible only for § 32(a) relief, he had no basis for seeking judicial review of the exclusive administrative determination. The finality and exclusivity of administrative relief provided by Section .32(a) has been confirmed in Schilling v. Rogers, 363 U.S. 666, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960), which held this limitation on judicial review to be constitutional.

Appellant argues that Schilling dealt only with the rights of enemy nationals, not entitled to Fifth Amendment protections. As a citizen, appellant claims that his right to an adjudication of his property rights cannot be diminished by imposing on him the burden of proving that he was not an “ally of an enemy” under § 9(a), or denied entirely through unreviewable administrative action, under § 32(a). Having been subjected to the “impermissible burden” in his earlier § 9(a) court suit, he claims that a judicial forum for consideration of his constitutional claim must lie in review of the § 32(a) determination.

Past Court pronouncements may perhaps be read as giving a constitutional bill of health to § 9(a) by approving the availability to a nonenemy claimant of a later judicial hearing on the propriety of a seizure. See, e. g., Societe Internationale v. Rogers, 357 U.S. 197, 211, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958); Stoehr v. Wallace, 255 U.S. 239, 245-246, 41 S.Ct. 293, 65 L.Ed. 604 (1921). But in none of such cases were the status of the claimant and the claimant’s burden to establish his nonenemy status in issue.

Assuming, without conceding, that appellant’s claim is not foreclosed by prior eases, we examine it. Since Congress has demonstrated its intent to foreclose judicial review of the administrative decision under § 32(a), a holding that such review is constitutionally required would have to be predicated on a finding that the present statutory scheme is fatally defective. Appellant claims that the taking of his property must be accompanied by the highest due process safeguard, judicial process. The most extensive judicial scrutiny includes determination of “jurisdictional” or “constitutional facts”. Here the essential fact is whether appellant was an “enemy” or “ally of an enemy” under the Act. Section 9(a) provides not only for judicial determination of this fact but a de novo judicial hearing. Appellant had the explicit opportunity to establish his status. He had the implicit opportunity to challenge the constitutionality of the burden of proof. The fact that judicial relief was made available before rather than after administrative jurisdiction was assumed is not determinative. See Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944). “There isn’t often a constitutional right to a second bite at the apple.” The Power of Congress to Limit the Jurisdiction of the Federal Courts, 66 Harv.L.Rev. at 1369. The scheme itself provides all the requisite constitutional safeguards. That opportunity was not earlier seized to obtain a judicial ruling on appellant’s constitutional assault on the proper burden of proof under § 9(a) does not provide any basis for avoiding the ruling in Schilling that § 32(a) relief is exclusively administrative and judicial review is foreclosed. The court below therefore properly ruled that it was without subject matter jurisdiction to review the claim.

We too are without jurisdiction to determine whether the district court in the Section 9(a) suit improperly required Von Clemm to bear an affirmative burden of proof. We note, however, that even if we had jurisdiction to consider its legal merits, appellant’s claim, since it could have been presented to the second circuit on appeal from Von Clemm v. Smith, supra, would be barred by res judicata. The Court’s statement a century ago is valid today:

“[Jjudgment, rendered upon the merits, constitutes an absolute bar to subsequent action. It is a finality . concluding parties . not only as to every matter which was offered and received to sustain or defeat the claim . . . but as to any other admissible matter which might have been offered . . . Such demand or claim, having passed into judgment, cannot again be brought into litigation between the parties in proceedings at law upon any ground whatever.” Cromwell v. County of Sac, 94 U.S. 351, 352-353, 24 L.Ed. 195 (1876).

The policies underlying the doctrine are well illustrated by this case. At some point litigation must terminate.

The order of the District Court is affirmed.

      . Von Clemm and Alley, as trustee for Von Clemm’s children formed a partnership in 1941, Bridge Imports. Von Clemm was the 75% general partner and Alley was, as trustee, a 25% special partner. Bridge was a partial owner of Pioneer. The appeal brief lias not differentiated their interests. We note, however, that Alley sued the Attorney General in federal court under § 9(a) seeking return of the property in his capacity of limited partner in Bridge. The relationship between Bridge and Pioneer is fully explained in Von Clemm v. Smith, 255 F.Supp. 353, 361 (S.D.N.Y.1965). The court dismissed the action on the grounds that under New York law a limited partner has no property rights in partnership assets and Alley had no standing to sue. Alley v. Clark, 71 F.Supp. 521 (E.D.N.Y.1947).

      . The property was vested in the Alien Property Custodian between 1942 and 1945 by vesting orders numbered 352, 353, 354, 4754, 4755 and 7611. The complaint alleges these properties were liquidated for a sum in excess of $1,300,000.

      . Legerlotz v. Rogers, 105 U.S.App.D.C. 256, 266 F.2d 457, 459 (1959); McGrath v. Zander, 85 U.S.App.D.C. 334, 177 F.2d 649, 652 (1949).

      . Section 32(a) was enacted subsequent to the major portions of the Act, and was intended to permit the Attorney General at his discretion to obviate injustices that might result. For analysis of the statute, see Schilling v. Rogers, 363 U.S. 666, 674-675, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960); McGrath v. Zander, 177 F.2d at 652.

      . Section 9(a) provides that: “Any person not an enemy or ally of [an] enemy claiming any interest, right, or title in any money or other property which may have been conveyed ... or paid to the Alien Property Custodian or seized by him hereunder and held by him . . . may file with the said custodian a notice of his claim under oath . . and the President . . . may order the payment ... or delivery to said claimant. ... If the President shall not so order . . . said claimant may institute suit in equity ... in the district court of the United States to establish the interest, right, title, or debt so claimed, and " if so established the court shall order the payment ... or delivery to said claimant . . ..”

      . When seeking recovery of seized property under the Act the petitioner has the burden of showing himself not to be an “enemy” or “ally of an enemy” within the meaning of the Act. Societe Internationale v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958); Manufacturers Trust Co. v. Kennedy, 291 F.2d 460, 462 (2d Cir. 1961).

      . The court couched its findings in terms of failure of proof. Nevertheless, in order to rule that appellant was ineligible for § 9(a) treatment, the court must necessarily have found that lie was an “ally of an enemy” for purposes of the Act. See Von Clemm v. Smith, 255 F.Supp. at 355-356, 367, 369.

      . Section 7 (c) of the Act provides: “The sole relief and remedy of any person having any claim to any money or other property heretofore or hereafter . . . transferred ... to the Alien Property Custodian . . . shall be that provided by the terms of this Act . . ..”

      . In Schilling an alien filed a claim under § 32(a) for return of property, the claim was denied and the alien sought judicial review of a question of law: whether he was ex-eluded under the Act from all relief. The Supreme Court held that § 7(c) of the Act precluded judicial review of the administrative disposition. The court also held that the Administrative Procedure Act was not applicable because by its terms no judicial review is afforded where “(1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion.” The court found the § 7 (c) of the Act invokes both limitations: “[T]lie Trading with the Enemy Act excludes a judicial remedy in this instance, and that . . . because of this, as well as because of the discretionary character of the administrative action involved, the Administrative Procedure Act by its own terms is unavailing to the petitioner.” Schilling, supra, 363 U.S. at 676.

      . E. g., Crowell v. Benson, 285 U.S. 22, 54, 52 S.Ct. 285, 76 L.Ed. 598 (1932); Ng Fung Ho v. White, 259 U.S. 276, 285-286, 42 S.Ct. 492, 66 L.Ed. 938 (1922); see also St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84, 56 S.Ct. 720, 80 L.Ed. 1033 (1936); Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287, 40 S.Ct. 527, 64 L.Ed. 908 (1920); Hart, The Power of Congress to Limit the Jurisdiction of the Federal Courts, 66 Harv.L.Rev. 1362 (1953).

      . While we do not reach this claim, we think it may be weakened by the Supreme Court’s holding in Calero-Toledo v. Pearson Yacht Leasing Co., - U.S. -, 94 S.Ct. 2080, 40 L.Ed.2d 452, 42 U.S.L.W. 4693, 4701 (1974).