author: ALDRICH, Senior Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Joseph T. JALBERT, Defendant, Appellant.
    No. 74-1125.
    United States Court of Appeals, First Circuit.
    Argued Oct. 7, 1974.
    Decided Oct. 31, 1974.
    John M. Doukas, Boston, Mass., with whom Robert W. Harrington, Boston, Mass., was on brief, for appellant.

      Robert E. Lindsay, Atty., Tax Div., Dept, of Justice, with whom Scott P. Crampton, Asst. Atty. Gen., William J. Deachman, U. S. Atty., Washington, D. C., Jeremiah T. O’Sullivan, Sp. Atty., Dept, of Justice, Boston, Mass., and Gilbert E. Andrews, Atty. Tax Div., Dept, of Justice, Washington, D. C., were on brief, for appellee.
    Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
   ALDRICH, Senior Circuit Judge.

Defendant Jalbert, a college graduate who had also had one year in law school and had been a special agent of the F. B.I., became a Dover, New Hampshire businessman with interests in several enterprises. He was convicted, after a jury trial, of filing false income tax returns in violation of 26 U.S.C. § 7201 for the years 1968, 1969 and 1970. Substantial unreported items were fully established, largely by direct evidence. The returns, signed by the defendant, were prepared by others on the basis of information supplied by defendant, and the omissions in the returns were, or could be found to be, due to defendant, not to any error by the preparers. Defendant’s “basic defense,” to quote his brief, was that “during the years in question he was a ‘chronic alcoholic’ and unable to form the requisite criminal intent.” Cf. Hopt v. People, 1881, 104 U.S. 631, 634, 26 L.Ed. 873; Kane v. United States, 9 Cir., 1968, 399 F.2d 730, 736, cert. denied, 393 U.S. 1057, 89 S.Ct. 698, 21 L.Ed.2d 699; Tao, Alcoholism as a Defense to Crime, 1969, 45 Notre Dame L. 68, 72-74.

Defense witnesses offered extensive evidence, including medical testimony, of defendant’s drinking, and of its incapacitating effect upon his ability to manage his business affairs. In addition, defendant’s medical expert testified that alcoholics do things without knowledge, and without recollection after-wards. “I don’t believe they can have criminal intent.” In rebuttal, the government did not deny defendant’s heavy drinking, but did introduce substantial evidence that contradicted his assertion that he lacked business acumen.

Defendant’s contention that this testimony was not proper rebuttal, but should have been offered in chief to counter an anticipated defense, is too frivolous to require comment. Cf. Goldsby v. United States, 1895, 160 U.S. 70, 74, 76-77, 16 S.Ct. 216, 40 L.Ed. 343; United States v. Fench, 1972, 152 U.S.App.D.C. 325, 470 F.2d 1234, 1240-1241, cert. denied sub nom. Blackwell v. United States, 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271. Even if the question were closer, we would defer to the discretion of the trial court. See Goldsby, ante, 160 U.S. at 74, 16 S.Ct. 216; United States v. Montgomery, 3 Cir., 1942, 126 F.2d 151, 153, cert. denied, 316 U.S. 681, 62 S.Ct. 1268, 86 L.Ed. 1754. It is of no consequence that the government produced some of its rebuttal evidence by recalling its original witnesses.

Equally frivolous is defendant’s claim that the evidence did not warrant a conviction. It is true that the government offered no medical expert to contradict defendant’s expert. However, the testimony of defendant’s expert itself admits of the possibility that even a chronic alcoholic may function well at times. And far more persuasive in this context than expert testimony, cf. Dusky v. United States, 8 Cir., 1961, 295 F.2d 743, 754, cert. denied, 368 U.S. 998, 82 S.Ct. 625, 7 L.Ed.2d 536, were the witnesses who observed defendant’s actual conduct. They amply supported a jury finding that defendant was capable of conducting his business affairs despite his alcoholic condition. Cf. United States v. Bishop, 1 Cir., 1972, 469 F.2d 1337, 1347.

Nor need we spend time on defendant’s claim that the court erred in permitting the government to introduce summary charts in evidence. Basically, defendant’s claim is that charts are, per se, prejudicial simplifications. The use of charts and summaries is not invalid per se. See Gordon v. United States, 5 Cir., 1971, 438 F.2d 858, 876 & nn. 63, 64, cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 56. Whether the charts in this case were so prejudicial as to warrant their suppression is a matter within the discretion of the trial court, absent its gross abuse. Gordon, ante, 438 F.2d at 876; McGarry v. United States, 1 Cir., 1967, 388 F.2d 862, 868, cert. denied, 394 U.S. 921, 89 S.Ct. 1178, 22 L.Ed.2d 455.

If the particular charts were misleading or prejudicial, their introduction might signal error. On this the defendant, as appellant, at a minimum has the burden of setting forth the alleged deficiencies in specific terms that we can follow, and that the government can respond to, especially in light of the safeguards with which the charts were presented in this case. Cf. United States v. Johnson, 1943, 319 U.S. 503, 519, 63 S.Ct. 1233, 87 L.Ed. 1546; Gordon, ante, 438 F.2d at 876-877. Defendant does not meet that burden by the bare assertion that the charts “among other things contained improper and prejudicial captions and descriptions (Tr. 406, 414). ...” Not only does the brief point out nothing, but the record on page 406 contains a simple exception with no ground stated, and on page 414 not even that. The appeal in this respect is not merely frivolous; it is meretricious.

The only matter that calls for any extended discussion is defendant’s contention that the court improperly prevented his introduction of character evidence. During the government’s case in chief defendant, having in cross-examination of a previous witness brought out that defendant was a heavy drinker, asked another government witness whether he knew defendant’s “general reputation in the community with respect to conducting business.” The court sustained an objection and added that it would not allow the question even as part of defendant’s case. Defendant made no offer of proof.

Thereafter, as part of his case, defendant asked a witness, “[D]id you know his reputation in the business community during this time?” On the court’s sustaining the government’s objection, defendant’s counsel stated,

“Your Honor, I would like to also (sic) utilize this witness, to avoid repetition, as a character witness.”
The Court: “Character isn’t in issue as yet.”
Mr. Doukas: “No, but I think we have a right to offer character testimony, Your Honor.”
The Court: “I don’t think you do now.”
Mr. Doukas: “Well, all right then, I will withdraw the question. I don’t want to bring him back.”

On this appeal defendant conceded that these questions were not properly framed to call for admissible character testimony. Even if they sought to elicit evidence of defendant’s honesty and integrity, such questions too narrowly focused on defendant’s business associations instead of the community at large, and thus defendant’s concession is well taken. Cf. Michelson v. United States, 1948, 335 U.S. 469, 480-481 n. 17, 69 S.Ct. 213; Williams v. United States, 1897, 168 U.S. 382, 397, 18 S.Ct. 92, 42 L.Ed. 509. More likely, however, these questions were directed to support defendant’s “basic defense” that during the period in question he was unable to conduct his business, but character evidence is admissible only to show a party’s general renown for honesty and lawfulness, and would not properly encompass his reputation as a disfunctional alcoholic. Cf. Michelson, ante, 335 U.S. at 476-477, 69 S.Ct. 213. In this respect the effects of defendant’s condition must be catalogued through evidence of his specific acts, not by proof of reputation.

Defendant’s present claim is that he was proposing to go on and introduce character evidence in proper form, but was stopped by the court. This claim must fail for several reasons. First, the record shows only that the court postponed the introduction of this evidence until a later point in the trial. It was defendant’s own decision to keep it out entirely. Cf. Malatkofski v. United States, 1 Cir., 1950, 179 F.2d 905, 915. Secondly, we might acknowledge that the court’s quoted remark suggested that it did not consider character evidence admissible except to restore defendant’s credibility after he had testified and been impeached as a witness. If the court believed that, it was in error; whatever may be its weight, character evidence is normally admissible per se in aid of a defendant, especially one prosecuted for a claim involving fraudulent intent. See Michelson, ante, 335 U. S. at 476, 69 S.Ct. 213; United States v. Torbert, 9 Cir., 1974, 496 F.2d 154, 158; Carnley v. United States, 5 Cir., 1960, 274 F.2d 68. However, if the court may be thought to have been of that opinion, it is still incumbent upon a party to make clear his own position. Defendant not only did not object, but withdrew the question. Thereafter defendant not only failed to pose a question substantively appropriate, but at no point made an offer of proof.

Defendant seeks to cure this manifestly defective record by asserting orally that the court ruled more directly, at an unreported conference, that character evidence would not be admissible at any point during the trial. It is elementary that such a proffer is impermissible; defendant’s obligation was to correct the record in the district court. His present action is doubly insupportable because it appears, through a letter from the court offered to us by agreement, that defendant did institute steps to correct the record, and was notified by the court (quite correctly) how to proceed, and then failed to do so.

Defendant did not stop there. Counsel now writes that following our criticism of the record at oral argument he corresponded and conversed with the district court. Counsel should not have done this, and regretfully, we must say that the court should not have communicated with him. From the standpoint of an appeal, this was an entirely inappropriate procedure. We do not take appeals on the basis of informal, not to mention ex parte, correspondence.

We may add, further, that even if we were to make from his submission the most favorable possible factual assumptions, it would appear that not only is defendant complaining of a matter of which he made no record, but of which he must be taken to have known he was making no record. This is not the way to save rights. Nor can we appraise, merely from the circumstance that defendant was, assumedly, prevented from introducing character evidence, what the net result of such embarkation would have been. New trials, particularly where the case was otherwise fully and fairly tried, are not to be so easily obtained. Cf. Silber v. United States, 1962, 370 U.S. 717, 718, 82 S.Ct. 1287, 8 L.Ed.2d 798 (per curiam); United States v. Mitchell, 1 Cir., 1970, 432 F.2d 354, 355-356, cert. denied, 401 U.S. 910, 91 S.Ct. 872, 27 L.Ed.2d 808; Dichner v. United States, 1 Cir., 1965, 348 F.2d 167, 168; Lash v. United States, 1 Cir., 1955, 221 F.2d 237, 240, cert. denied, 350 U.S. 826, 76 S.Ct. 55, 100 L.Ed. 738.

Affirmed.

      . At a later point defendant asked a witness, Q. “Could you tell us, testify with respect to the type of businessman he was, that is, you know what I mean, trying to cheat anybody,, his employees, or cheat the business people he dealt with?”
      Since this question called not for evidence of defendant’s reputation but for the witness’ personal opinion, it could not have elicited proper character evidence, and the court was right to exclude it. See Michelson v. United States, 1948, 335 U.S. 469, 477, 69 S.Ct. 213, 93 L.Ed. 168.


source: Caselaw Access Project

author: GODBOLD, Circuit Judge.

license: Public Domain

text:
    EMBRY-RIDDLE AERONAUTICAL UNIVERSITY, Plaintiff-Appellee, v. ROSS AVIATION, INC., et al., Defendants, Local 2003 of the International Association of Machinists and Aerospace Workers, Defendant-Appellant.
    No. 73-1842.
    United States Court of Appeals, Fifth Circuit.
    Dec. 2, 1974.

      Guy Sparks, Anniston, Ala., for Local 2003.
    Kenneth T. Fuller, Joe C. Cassady, Enterprise, Ala., for Ross Aviation.
    Philip H. Elliott, Jr., Daytona Beach, Fla., Albert W. Copeland, Montgomery, Ala., for plaintiff-appellee.
    Before GODBOLD, SIMPSON and INGRAHAM, Circuit Judges.
   GODBOLD, Circuit Judge.

Embry-Riddle Aeronautical University [“Embry”], the appellee, sued Ross Aviation Corporation [“Ross”], its board chairman and president Joe Ross, and Local 2003, International Association of Machinists and Aerospace Workers, for violation of section 1 of the Sherman Act, 15 U.S.C. § l. Embry won a $40,000 verdict based upon answers of a jury to numerous written interrogatories. The court entered judgment for the trebled amount of $120,000 plus attorney fees. Only Local 2003 appeals, making three arguments: (1) it was within the “labor union exemption” from antitrust liability; (2) even if no exemption applied, there was insufficient evidence to make out a Sherman One violation; (3) the District Court should have informed the jury that any award it assessed would be tripled under 15 U.S.C. § 15. We affirm.

1. The facts.

Ross, a publicly held company engaged in performing contracts for military and governmental agencies, trained Army pilots at Fort Rucker, Alabama, under contract with the Army beginning in 1962. The contract was re-awarded to Ross several times. It was due to expire again June 30, 1970, and several months earlier the Army solicited bids for a new contract. Ross bid but Embry was low bidder, and June 5, 1970 the Army announced it had awarded the new contract to Embry. The essence of appel-lee’s Sherman One claim is that Ross and the local conspired to deprive Em-bry of the benefits of its contract with the Army by making it impossible for Embry to perform. Considerable of the evidence is in conflict. Under familiar standards, there was sufficient evidence on the basis of which the jury could conclude that the factual history was as follows. Necessarily the recital is detailed.

Union activity began among Ross’ Fort Rucker employees soon after the company commenced performance of its contract in the early 1960’s. From then until shortly after the Army’s June 5, 1970 announcement Ross uniformly resisted unionism. In 1963 the appellant local demanded recognition as bargaining agent for two groups of employees. Ross refused recognition, the NLRB ordered an election, and the union won with respect to flight instructors but lost with respect to clerical and maintenance workers. The local represented the flight instructors until 1967 when the program in which they worked was transferred to another base. In 1968 recognition was demanded by the employees of a different training division of Ross, including fixed wing flight instructors. Ross refused and a seven week recognition strike ensued. A Board election was ordered, and the union lost by one vote.

April 27, 1970 the union again demanded recognition on behalf of employees of the same division [fixed wing] as had demanded recognition in 1968, and on or about the same date filed a petition with the NLRB for an election. Ross declined recognition. At some time prior to June 5 Ross consented to an election which the NLRB scheduled for July 2.

May 20 Ross sent a letter to all employees saying, in part:

We are thus again in a campaign caused by actions of the same union as before who have selfish and personal gain in mind and who are trying to attract your interest — your interest with idle promises. Over the next few weeks we shall continue to communicate with you whereby all of you may factually know the issues .involved in this campaign. The company has confidence that you will make the right decision in the coming election and vote for yourself by voting no to unionization — unionism. The right decision will enable us to continue to work together as a team for the mutual benefit of all of us.

The Army made its announcement of contract award on June 5. It was expected by Embry, the Army, Ross, and Ross’ employees that Embry would employ all or most of the Ross employees, as Ross had done with respect to the work force of its predecessor when it took over in 1962. After the announcement and during the rest of June the employees were anxious about their jobs and their salary levels, and some were frustrated about what they considered slowness by Embry in recruiting them for employment.

June 8 Ross filed with the Army a formal protest of the award.

A special meeting of the local was held June 10, and a representation committee was elected and directed to seek immediate recognition from Ross by card check and also to seek contract negotiations that must conclude by June 21. June 12 the bargaining committee met with President Joe Ross, hand-carrying a written demand for recognition. The committee, on threat of strike, demanded card check recognition, immediate salary increases of $200-250 a month as evidence of management good faith, and immediate collective bargaining. In 1963 or 1964, in 1968, and a month and a half earlier (around May 1), Ross had refused card count recognition. In this instance, on the same day and occasion that the demand was received Mr. Ross consented in writing to a card count and agreed to $100 a month raise for flight instructors and somewhat less for other employees in the fixed wing division, effective June 15. The card count was held June 15 and revealed signed cards for 85%-90% of employees affected. Ross immediately recognized the union as bargaining agent for fixed wing employees.

Meanwhile the previously unorganized rotary wing [i. e., helicopter] employees had begun to organize and had sought assistance from the local. June 11 they held a meeting, chose a representation committee, and directed it to seek card check recognition. The same day the local informed Mr. Ross of what the rotary wing employees were doing and predicted that he would receive a letter from them demanding recognition. June 16 the rotary wing committee met with officials from the local. A demand for card count recognition and bargaining was drafted, the committee and officer (s) from, the local presented it to Mr. Ross, he agreed to a count, the count was held, a majority of approximately 75% was shown, and Ross extended recognition, all on June 16. Also, by June 16 Ross had in hand a proposed contract from the union and was studying it.

The two units contained approximately 435 employees. Commencing after Ross had recognized the two bargaining committees and had agreed to immediate bargaining and immediate salary increases, President Ross made a series of speeches to more than 400 affected employees. The speeches were variously placed as having occurred in a time span of June 16-21. Numerous witnesses described what Mr. Ross said and what the company contemporaneously did. We reiterate that the evidence conflicted and that we set out what the jury could find was said and done. Mr. Ross stated it was a “dirty shame” that the employees would have their pay reduced. He told them that he had “heard” that a union was being formed. He said that previously he had actively fought the union but that it was now time to change his position, that he thought it was in the best interests of the employees to join the union and he recommended that they do so. If the. union organized quickly enough Embry could be forced to default on its contract. If the union, when organized, made demands he would accept them and would enter into a contract that would be binding on Embry and would contain terms that Embry, under the provisions of its low bid, would be unable to comply with so that it would have to default. Or, upon inability of Embry to perform there would be a strike, and Embry would then be put in default for inability to perform. When Embry defaulted, Ross, as second low bidder, would take over the contract under the terms of its bid, and it could meet the terms and conditions previously agreed upon with the union. Employees would not lose either pay or seniority, and the pay scale would remain the same as agreed to by Ross [on June 15].

Before and after these meetings, and in some instances during the meetings, Ross middle management personnel passed out, and had others pass out, employment applications to be filled out and signed by employees, covering the same positions that they then held with Ross. Employees were told to leave blank the date and the salary. Some understood that the applications were to be effective if and when Embry defaulted. In some instances employees were ordered rather than requested to sign the forms. Forms were given to some employees who already had applied to Em-bry for employment and to some who already had entered into contracts with Embry. Numerous employees signed the application forms.

Both before and after the meetings at which Mr. Ross spoke the union continued to distribute membership cards. After he had heard one of the speeches by Mr. Ross, a flight instructor not a part of management was solicited for union membership by a nonmanagement employee who told him: “This is the man, you heard the word, this is do or die. ... You better sign the thing; we need it.” Another flight instructor told the same person: “Well, you better sign this card. We got to have a hundred percent; if we get a hundred percent,, we got them wired.” The flight instructor receiving these entreaties told “the rest of the guys” this: “How can you have [a] union represent you when you have already signed a contract with Embry-Riddle ?”

Face to face contract negotiations between Ross and the union began around June 18 to 20 and continued to around June 25. Separate contracts were agreed upon with the fixed wing and rotary wing employees, approved in membership meetings of the two units, printed, and then executed between June 25 and 30 (various witnesses testified to various dates within this span). The contracts provided for increased salaries and benefits. Ross’ vice president, who negotiated with the union, testified that he had no idea what these increases would cost Ross if it were operating under the collective bargaining agreement, that probably Ross would have lost money or broken even. Extrapolating from this conclusion, he estimated that the total additional cost was approximately $325,000 annually. Though the contract was executed before July 1, the effective date of the increases in salary and benefits was July 1, the first day of Embry’s contract with the Army. Both bargaining contracts contained successorship clauses.

Under its contract Ross was required to cooperate with Embry as successor contractor in effecting a smooth transition to the end that the training program not be interrupted. Obviously, the events since June 5, culminating in contracts purporting to bind a successor, were significant events to be communicated to Embry under the requirement of transitional cooperation, but Ross gave no notice to Embry of what was occurring despite the fact that the two companies were in communication with each other. In late June, Ross gave the Army copies of the contracts but sent none to Embry. In other respects as well Ross did not cooperate in the transitional process, and finally toward the end of June Embry protested to the Army concerning the lack of cooperation.

The union made no suggestion that Embry be brought into the collective bargáining sessions, although it knew that Embry was to take over July 1. The man who had been the professional representative of the international union in the Fort Rucker area for a number of years, and had played the leading role in efforts to organize Ross, and had represented the union in the contract negotiations, testified that his union customarily sought successorship clauses, but that he had never before negotiated or even known of a contract negotiated with an existent employer to become effective when a successor employer was to take over.

There was evidence that during June a facade of anti-unionism was sought. Ross did not inform middle management of its departure from its prior policies with regard to unionism. Instead at least some members of middle management were advised to resist the union and to discourage employees from joining. On the union side, there was testimony that some union members were never informed that contracts had been negotiated.

July 1 Embry began to perform, using more than 400 employees with whom it had made contracts, most of them former Ross employees, some of whom were employed at the same salary previously paid by Ross, others at lesser salaries. July 2 the union approached Embry for the first time and delivered a letter stating:

The International Association of Machinists and Aerospace Workers is the collective bargaining agent for two separate bargaining units of your employees. The two units are your fixed wing instruction and rotary wing instruction employees which are presently covered by labor management agreements. We request and demand the terms and conditions contained in the enclosed agreements be effective on July 1, 1970, and continued for the durations of said agreements, (emphasis added.)

Embry’s work force was sufficient, and it satisfactorily performed the training contract until struck. Embry refused to recognize the local as bargaining agent and stated it was not bound by the contracts signed with Ross, that it considered them not entered into through good faith bargaining and in violation of the National Labor Relations Act. The union instituted proceedings before the NLRB on July 12, and a day or two later about 325 employees went out on strike. Embry tried to continue training operations with a handful of employees but without success. During the time that picket lines were set up Ross personnel encouraged Embry-em-ployed flight instructors not to go to work. July 16 the Army notified Em-bry the contract would be terminated unless performed. The same day Embry asked the Army whether the contract could be renegotiated to increase salaries as demanded by the employees, and the Army replied in the negative. Ross wrote the Commanding General of Fort Rucker on July 21, offering its services if Embry were terminated and stating that it could take over on 12 hours notice as early as July 25. The same day it wrote the Assistant Secretary of the Army that the Army “made a serious mistake by selecting a contractor without enough money in his bid even to pay the then existing wage scales, much less the union demanded wage scales.”

Mediation was attempted between Em-bry and the union. July 26 union membership rejected suggested settlement proposals on the grounds, it said, that funds available under Embry’s contract with the Army had resulted in lower salaries for some employees and would not permit continuation of group insurance, and, additionally, “it [presumably the overall situation or the Embry contract] was full of impossibilities or unknowns.” The strike was not settled, and on July 26 the Army declared Embry in default and began using military personnel to train pilots.

2. Exemption.

The labor union exemption from the operation of the antitrust laws arises out of, inter alia, 29 U.S.C. §§ 52, 101, 102, and 105, 151. See generally United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788 (1941); Allen Bradley Co. v. Local 3, IBEW, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945), and cases cited therein. The Supreme Court has made clear that unions do not enjoy absolute immunity. The exemption is generally said to be forfeited when the union joins with a nonlabor group in a scheme prohibited by the antitrust laws.. In two important cases the Court has particularized this rule. In Allen Bradley, supra, one union represented both the employees of New York City electrical equipment manufacturers and the employees of contractors in the business of installing electrical equipment, who were the manufacturers’ chief local customers. Through conventional labor union methods the union made closed shop collective bargaining agreements with the contractors which provided that the contractors would buy equipment only from local manufacturers who also had closed shop agreements with the union. The manufacturers agreed with the union to confine their New York City sales to contractors employing union members. As a result the New York City market was completely closed to outside manufacturers because no in-city contractors would buy from them. In-city prices and wages rose steeply. The Supreme Court found no antitrust exemption, holding that

when the unions participated with a combination of business men who had complete power to eliminate all competition among themselves and to prevent all competition from others, a situation was created not included within the exemptions of the Clayton and Norris-La Guardia Acts.

325 U.S. at 809, 65 S.Ct. at 1540, 89 L.Ed. at 1948.

A second situation in which the exemption may be forfeited was discussed in UMW v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). The plaintiff, a small coal operator, alleged that the large coal operators and the UMW had conspired to squeeze him out of business. Underlying the conspiracy, he claimed, was an understanding between the union and the large operators that production should be limited and mechanization encouraged. The number of jobs would shrink, but the workers who were left would get better wages, benefits, and conditions.

To effect the alleged scheme, plaintiff claimed, the union and the large operators had agreed to certain wages and hours and had agreed that the union would force the same terms upon small operators whose employees it also represented, though in separate bargaining units. For reasons of economies of scale it was harder for the small operators than for the large ones to pay the new rates, and small operators like plaintiff lost profits or had to fold entirely. The Supreme Court held that

a union forfeits its exemption from the antitrust laws when it is clearly shown that it has agreed with one set of employers to impose a certain wage scale on other bargaining units. One group of employers may not conspire to eliminate competitors from the industry and the union is liable with the employers if it becomes a party to the conspiracy. This is true even though the union’s part in the scheme is an undertaking to secure the same wages, hours or other conditions of employment from the remaining employers in the industry.

381 U.S. at 665-666, 85 S.Ct. at 1591, 14 L.Ed.2d at 633-634. The Court noted that nothing in the labor policy conflicted with its conclusion. Indeed, labor policy was clearly set against the alleged scheme, because to effectuate it the union, as bargaining agent for some units, obligated itself to take an inflexible position when negotiating on behalf of other units. The upshot was an undesirable restriction upon the freedom of those other units to recede and make compromise agreements with their respective employers.

The present case is closer to the Pennington than to the Allen Bradley model. There are, however, several divergences which the union elaborates into arguments favoring exemption. First, the Pennington court spoke in terms of an employer group, whereas here only Ross, a single business entity, is alleged to have conspired with the union. We hold that this makes no difference. Pennington would not have come out the other way if a single large coal operator rather than a group of operators had been accused of conspiring with the UMW. Secondly, Local 2003 emphasizes that there was no “other” bargaining unit whose bargaining freedom was restricted but only one unit which in the immediate future would be employed by a new and successor employer. But non-exemption can be found despite this difference. Three factors guide us to this conclusion. First, we read Part I of Pennington as focusing primarily on the antitrust statutes, antitrust cases, and the particular Code provisions from which courts spin out the labor union exemption. Then, beginning with the first full paragraph following footnote 2, the Court tested the nonexemption conclusion that it had already reached against general labor policy as distinct from specific provisions. The Court found the conclusion sound, reasoning that labor law not only did not support the UMW’s alleged conduct but actually was set against it. Second, in Allen Bradley non'exemption was found although no restriction upon other units represented by the conspiring union was involved. Finally, in Local Union No. 189, Amalgamated Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 85 S.Ct. 1596, 14 L.Ed.2d 640 (1965), a companion case to Pennington, Justice White passed over, the fact of no restrictive effect on other units and based his exemption finding on lack of claimed conspiracy. See, 79 Harv.L.Rev., The Supreme Court, 1964 Term, 56, n. 11 (1965).

Also, Pennington expressed its “other bargaining units” concept in varying ways and one of the verbal formulas employed encompasses the present fact situation. Justice White wrote:

Prior to the agreement the union might seek uniform standards in its own self-interest but would be required to assess in each case the probable costs and gains of a strike or other collective action to that end and thus might conclude that the objective of uniform standards should temporarily give way. After the agreement the union’s interest would be bound in each case to that of the favored employer group.

381 U.S. at 668, 85 S.Ct. at 1592, 14 L.Ed.2d at 635. Within the framework of the alleged scheme, Local 2003’s interests after appellee began performance of the new contract remained bound to those of Ross, the “favored employer.”

At least in cases falling within the Pennington model, for nonexemption and liability to be found the union must be proved to have had a purpose to injure or eliminate the competitor of a company whose employees it represents. See, e. g., Bodine Produce, Inc., v. United Farm Workers, 494 F.2d 531 (CA9 1974). A rule of law requiring a lower level of intent than purpose would open the way to disastrous incursions upon Congressionally-sanctified areas of labor union activity. When a union imposes a collective bargaining agreement upon Company X, it will always advantage X by forcing the same agreement on competitor Company Y which theretofore offered less advantageous terms and working conditions. This is a fact of commercial life known to all unions. But if possession of that knowledge should mean that the union had to tread warily in negotiating with Y, refraining from striking, for example, or from taking a rigid bargaining stance for fear of losing the antitrust exemption, labor policy would be stood on its head. See generally the opinion of Justice Goldberg in Jewel Tea, supra, 381 U.S. at 697-735, 85 S.Ct. 1596, 14 L.Ed.2d at 654-676. Antitrust suits could become employers’ routine response to union contract demands, possibly coupled with claims for injunctions against strikes or against union adherence to particular bargaining positions.

Union purpose to conspire is necessary, as we have said, but that purpose alone is not sufficient. A union can, without forfeiting the exemption or substantively transgressing the antitrust laws, act with a purpose to injure or even eliminate the business of an employer, no matter whether it does so because it more or less legitimately defines its interests in terms of injuring the employer or because of personal animus toward a particular employer, see Hunt v. Crumboch, 325 U.S. 821, 65 S.Ct. 1545, 89 L.Ed. 1954 (1945). What makes the exemption disappear is sufficient proof of concerted purpose, between the union and a favored employer.

The District Court in the present case, without objection, instructed the jury on the requirement of concerted purpose, saying,

Embry-Riddle further contends in this case that after it was publicly announced that this contract would be let to Embry-Riddle and not to Ross, that Ross Aviation and the International Association of Machinists and possibly others entered into a combination or a conspiracy in violation of the antitrust laws of the United States, under the terms of which the defendants conspired to make it impossible for Embry-Riddle to perform its contract for flight training with the Army.

In effect the court placed the exemption issue and the issue of liability on the merits before the jury under one instruction. Perhaps the preferable practice would be to separate them. See Ramsey v. UMW, 401 U.S. 302, 314, 91 S.Ct. 658, 28 L.Ed.2d 64, 73 (1971), in which Justice Douglas in a dissenting opinion stressed their separability, citing Apex Hosiery Co. v. Leader, 310 U.S. 469, 512, 60 S.Ct. 982, 84 L.Ed. 1311, 1333 (1940). See also Cedar Crest Hats, Inc. v. United Hatters, 362 F.2d 322 (CA5 1966).

There was sufficient evidence to present a jury issue on nonexemption. Pennington clearly contemplated that indirect evidence could suffice. See 381 U.S. at 665 n. 2, 85 S.Ct. 1585, 14 L.Ed. 2d at 633 n. 2. We have described the content of Mr. Ross’ speeches, made to almost all of the employees affected. Union majorities from the two card counts were 75% to 90%. Necessarily Mr. Ross’ audiences were largely composed of the persons who were the local union. He explicitly revealed his purpose to use increased benefits to union members as a lever to directly bring about a default by Embry, or to induce a strike which would bring about a default, and secure the contract again for his company. The union, with knowledge of Ross’ purpose, continued to solicit members and traded on what Mr. Ross had said as a basis for seeking 100% membership. Some union members were not advised that their union had been recognized as bargaining agent and were unaware of the agreement for interim benefits. With respect to the members who knew what had happened and was happening, it is almost certain that some of them knew from presence at Mr. Ross’ speeches that he was concealing the facts from nonmembers, and even affirmatively misrepresenting, when he stated that he had “heard” a union was organizing and urged them to join. The numerous persons receiving and signing applications for employment with Ross (including persons under contract with Embry), with salary and date left blank on each form, necessarily included union members.

The union characterizes its sole purpose as one of benefitting its members by better pay and working conditions, and considers that to the extent Embry would be injured the injury was a permissible one. Legitimate enjoyment by a union of the manna falling from economic rivalry between employers, and even union whipsawing of an existent employer and its upcoming successor, must be distinguished from acting as catspaw in a concerted purpose to destroy a competitor employer to the benefit of a favored employer. Under the special facts of this case the existence of a concerted purpose was peculiarly plausible. In the usual situation union self-interest militates against driving one of several competitors out of business, for such an action involves a tradeoff between wage levels and number of jobs. But in this case the number of jobs remained substantially the same since the same work force was expected to take over for the successor company.

3. Liability.

In this case, see Justice Douglas’s dissent in Ramsey, supra, 401 U.S. at 314, 91 S.Ct. 658, 28 L.Ed.2d at 73, the evidence supporting the nonexemption verdict also was sufficient to support the finding of a Sherman One violation.

4. Treble damages instruction.

The District Court properly refused to inform the jury that any award of damages would be trebled. Pollock & Riley, Inc., v. Pearl Brewing Co., 498 F.2d 1240 (CA5 1974).

Affirmed.

      . “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. ...”

      . One pilot who objected to signing with date and salary blank was told to sign or he wouldn’t fly any more, and his superior, who gave him the form, said his orders were that everyone must sign the forms prior to departing for flights.

      . Vacation, life insurance, and sick leave.

      . As where it decides that fewer jobs but higher paying jobs will be better for it in the long run.

      . Justice White wrote in Pennington that “[u]nilaterally, and without agreement with any employer group to do so, a union may adopt a uniform wage policy and seek vigorously to implement it .... ” 381 U.S. at 665 n. 2, 85 S.Ct. at 1591, 14 L.Ed.2d at 633 n. 2.

      . In Ramsey the majority opinion rejected the idea that § 6 of the Norris-La Guardia Act, 29 U.S.C. § 106, required “clear proof” rather than, merely proof by a preponderance of the evidence in civil antitrust cases against unions. In dissent Justice Douglas strove to narrow the majority holding by stating that it concerned the liability issue only. Thus, Justice Douglas implied that the question of the correct evidentiary standard for deciding the exemption issue remained open. It is not clear to us that this is true. The District Court, Ramsey v. UMW, 265 F.Supp. 388 (E.D.Tenn.1967), came down in favor of the clear proof standard and the Sixth Circuit affirmed by an equally divided court, Ramsey v. UMW, 416 F.2d 655 (CA6 1969). As we read the District Court opinion, the trial judge was considering the standard for weighing evidence of exemption.
      “Having concluded that the Protective Wage Clause does not constitute an express commitment upon the part of the U.M.W. to the B.C.O.A. not to bargain with any other coal operator upon any terms other than the national contract, this does not conclude the issue of whether the U.M.W. did in fact, though not expressly, so contract with the B.C.O.A. Were this case being tried upon the usual preponderance of the evidence rule applicable to civil cases, the Court would con-dude that the U.M.W. did so impliedly agree. However, the standard of proof where a labor union is involved is ‘dear proof’, as required by Section 6 of the Norris-La Guardia Act, a standard different from the ordinary civil burden of persuasion. United Brotherhood of Carpenters v. United States, 330 U.S. 395, 67 S. Ct. 775, 91 L.Ed. 973; United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218. The Court is of the opinion that the evidence upon the record in this case does not establish such dear and unequivocal proof as to warrant the Court in finding that the U.M.W. pursued its policy of uniformity of wage and labor standards by agreement with one or more employers, as distinguished from pursuing such policy upon its own. The only direct evidence in the record is to the effect that the Union pursued such policy upon its own, and not in agreement with any employer.”
      265 F.Supp. at 412. The ultimate fact hypothesized — agreement by a union with one employer to impose a particular level of demands on other employers — is precisely the fact relied upon by the Pennington court for its finding of nonexemption. Thus we conclude that in reversing Ramsey the Supreme Court majority intended to install the preponderance standard as the correct eviden-tiary yardstick for the nonexemption issue.


author: PELL, Circuit Judge.

text:
    CHICAGO AND NORTH WESTERN RAILWAY COMPANY, Plaintiff-Appellee, v. HUNT-WESSON FOODS, INC., Defendant-Appellant.
    No. 73-1763.
    United States Court of Appeals, Seventh Circuit.
    Argued May 22, 1974.
    Decided Oct. 24, 1974.

      Robert W. Ginnane, David A. Sutherland, Washington, D. C., for defendant-appellant.
    James P. Daley, Robert Schmiege, Attys., C. & N. W. Trans. Co., Chicago, 111., for plaintiff-appellee.
    Before CASTLE, Senior Circuit Judge, PELL, Circuit Judge, and MATTHES, Senior Circuit Judge.

      . Senior Circuit Judge M. C. Matthes of the United States Court of Appeals for the Eighth Circuit is sitting by designation.

   PELL, Circuit Judge.

Defendant Hunt-Wesson Foods, Inc., appeals from a district court order granting summary judgment to plaintiff Chicago and North Western Railway Company in an action to recover the alleged balance due in freight charges on 263 multiple-car shipments of canned goods from California received under a proportional rate tariff at Hunt-Wesson’s Northlake, Illnois distribution center between January 1966 and January 1970. Hunt-Wesson contends on appeal that the court below erroneously construed the tariff to require outbound shipments forwarded beyond the distribution center consist of the exact cases of canned goods actually received into the warehouse in multiple-car shipments under proportional rate, in order to protect the proportional rate accorded to the goods received. Hunt-Wesson further argues that its record-keeping was adequate to demonstrate its compliance with the tariff’s forwarding requirement.

Item 1587 of the Trans-Continental Freight Bureau Tariff 2 publishes a proportional rate applicable to canned foodstuffs from the West Coast to North-lake, Illinois. That item provides that the shipment must consist of at least eight freight cars, containing a total of at least one million pounds of canned foodstuffs, which are moving on one bill of lading from a single origin to a single destination. The item further provides that the lower proportional rate only applies to “shipments” which receive a further movement beyond within one year to particular destinations to which rates of not less than 17%^ per hundred pounds apply.

The tariff also enumerates several rules governing the application of this item. Rule 1 provides that the shipper tendering these eight cars to the rail carrier at origin must submit a bill of lading certifying that the “commodities” shipped will be forwarded to another destination within one year. Rule 2 requires the shipper, within 10 days of delivery of the shipment, to register it with the carrier and to notify the carrier in writing that the shipper intends to forward “the tonnage contained in this shipment” to another destination within one year. Rule 3 states that “no substitution of commodities will be permitted except commodities covered by freight bills registered under provisions of Rule 2 of this item.” If, however, after the expiration of a one-year period, the shipper has failed to honor his assurance that the tonnage contained in the shipments would be forwarded, Rule 4 provides that the shipper must pay additional charges amounting to the difference between the lower proportional rate and the higher flat rate. Finally, Rule 6 authorizes the Weighing and Inspection Bureaus (employed by the carriers to police the enforcement of tariffs), to supervise the shipper’s records and to certify to the parties whether the shipper has met the conditions necessary to protect the proportional rate.

After the proportional rate went into effect in October 1965, the Interstate Commerce Commission initiated an investigation of all aspects of these rates, including the substitution rule. On April 1, 1966, about three months after Hunt-Wesson had begun utilizing the multiple-car shipment rate, the Transcontinental Freight Bureau advised the Commission that Rule 3 permitted the substitution of “commodities” which moved into the warehouse at the proportional rate. The Commission issued its . decision upholding the tariff on October 28, 1969. Multiple Car Rates on Canned Foodstuffs, Pacific Coast to the East, 335 I.C.C. 612 (1969).

During the period 1966-1970, Hunt-Wesson made a number of multiple-car shipments of canned foodstuffs from California to the Northlake distribution center. Additionally, Hunt-Wesson made single-car shipments from the West Coast to Northlake on which the higher flat rate was imposed. The canned goods received at Northlake under these two different rates were physically intermingled in the same bags at the distribution center, along with similar kinds of goods received from eastern processing plants. When these items were reshipped outbound in smaller quantities to large retail chains or wholesalers, they were selected from the storage bags on a first-in, first-out basis to insure inventory freshness, without reference to the origin or rate paid on the particular cases of canned goods being forwarded.

At Northlake, Hunt-Wesson employed a perpetual inventory type operation for its record system. Under this system, Hunt-Wesson maintained a file folder for each of the two hundred sixty-three multiple-car shipments at issue. Each file contained a copy of the freight bill for the multiple-car inbound shipment and copies of several outbound bills of lading showing that the number of pounds shipped outbound to be applied against that particular inbound multiple-car shipment (i. e., the record system showed that the volume outbound of a kind of foodstuff equalled the volume of that foodstuff received in each particular multiple-car shipment). These outbound records did not, however, identify the cases of canned goods forwarded as to either their origin or the rate paid when they were shipped inbound, and thus, the identity of the cases received from the West Coast in multiple-car shipments was not preserved. Accordingly, because there was no segregation in the warehouse of commodities as to origin and because forwarded commodities were intermixed with similar commodities produced and packed from origins not covered by freight bills registered under Rule 2, the Milwaukee office of the Western Weighing and Inspection Bureau found that Hunt-Wesson had violated Rule 3 of the tariff and issued correction notices for the shipments involved in this action on the basis of the difference between the proportional rate already paid and the higher flat rate. This created a balance due on the shipments of $755,156.82. The Railway subsequently brought suit to collect this balance. The court below granted summary judgment to the Railway, holding that Rule 3 of Item 1587 prohibiting substitution of commodities unambiguously required that the outbound shipments applied against the inbound multi-car freight bill consist only of the specific cases of canned goods actually received into the warehouse in multi-car shipments. The trial court therefore excluded the alternative interpretation that the tariff requirement was intended to be satisfied by the forwarding of cases of the same commodity received under the tariff even if the forwarded commodity did not arrive under a multi-car tariff or by forwarding different commodities which also arrived at the intermediate stop under the Item 1587 multiple-car rates.

We cannot agree with the trial court. We note that Rules 2, 4 and 6 of the tariff were phrased in terms of “tonnage,” while Rule 3 employs the term “commodities.” To support its conclusion that Rule 3 unambiguously refers only to the exact cases shipped under the multi-car rate, the court below was compelled to equate these two terms of art with each other and with “shipment,” as found in the above rules. We believe this is neither the only nor even the most plausible interpretation of the rules in light of either the historical use of these terms of art or the actual application of these tariff rules. This ambiguity inherent in the tariff must, of course, be construed against the carrier. E. g., Union Wire Rope Corp. v. Atchison, T. & S. F. Ry., 66 F.2d 965 (8th Cir. 1933).

The multiple-car rate involved here is a transit rate, Multiple Car Rates on Canned Foodstuffs, Pacific Coast to the East, 335 I.C.C. 612, 617 (1969); that is, a rate which applies from origin to ultimate destination with the privilege of an intermediate storage stop. Because such rates are less than the combination full rates from the origin to the storage point and from that point to the destination, the Interstate Commerce Commission has long been concerned with the issue of substitution at the storage point, to prevent abuse of the transit rate. E. g., In Re Substitution of Tonnage at Transit Points, 18 I.C.C. 280 (1910). In The Transit Case, the Commission rescinded a previous rule respecting transit rate applicability and articulated the principle that substitution of like goods — commodities —would be permitted, while substitution of equivalent weights — tonnages—would not be allowed. Originally, this rule was limited to tangible goods where identity was not normally preserved. Later, the Commission extended its applicability to certain products whose identity could be preserved but which could only be traced to their point of origin with extreme difficulty. Substitution of Cotton in the Southwest, 241 I.C.C. 153 (1940); accord, Los Angeles Chamber of Commerce v. Atchison, T. & S. F. Ry., 182 I.C.C. 141 (1932). It is the latter category which subsumes the canned foodstuffs at issue in this case. Thus, if words must be given the meaning that they might reasonably carry to the shipper to whom they are addressed, United States v. Missouri-Pacific R. R. Co., 250 F.2d 805, 807 (5th Cir. 1958), it is quite understandable that Hunt-Wesson, unlike the trial court, would not construe “tonnage” and “commodity,” as used in the rules implementing Item 1587, as coterminous in meaning, but rather would view the terms as possessing historically distinct connotations.

The plausibility of the interpretation of the tariff followed by Hunt-Wesson is amply supported by a textual analysis of the tariff rules themselves. If Rule 3, which permits substitution of “commodities covered by freight bills registered” under Rule 2, were meant to be restricted, as the trial court held, to substitution of “the exact cases that were shipped under the multiple car rate,” the drafters of the rule would have certainly provided that substitution must be restricted to “commodities contained in shipments covered by the freight bills registered.” The absence of such phrasing is indicative that the rule was intended to prohibit only substitution of commodities of a different kind than those which arrived at North-lake under a multiple-ear tariff — an interpretation which is consistent with The Transit Case rule. Supra at 289. Moreover, no other implementing rule for Item 1587 indicates any interest by the drafters in the forwarding of the exact cases of commodities received. Rather, under Rule 2, the consignee must state its intention “to forward the tonnage contained in this shipment,” while under Rule 4, the consignee shall be penalized if it fails “to forward all the tonnage contained in the shipments,” and finally, under Rule 6, the Weighing and Inspection Bureau shall supervise “the disposition of the tonnage covered by the shipment.” Finally, the interchangeable use of “covered” and “contained” with reference to shipment, further substantiates the argument that the recurrent use of “tonnage” reflects a purpose to permit compliance with the forwarding requirement with the same kind of goods that was received under the multiple-car rate at the intermediate storage point.

The most powerfully persuasive argument that the tariff’s inherent ambiguity permitted the interpretation followed by Hunt-Wesson is that all parties concerned initially agreed that the tariff permitted substitution of commodities received under the single-car rate for identical commodities received under the multiple-car rate and, following subsequent disagreement, the Trans-Continental Freight Bureau filed a clarification of the tariff which authorized the practice initially agreed on in order “to eliminate conflicting interpretations by the Weighing and Inspection Bureaus and to reflect the interpretation of the member lines upon the original intent [of the tariff].”

It is uneontested that Hunt-Wesson shipped canned foodstuffs under the multiple-car rate for approximately three and one-half years before its substitution in forwarding of goods received under the single-car rate was challenged by the Milwaukee office of the Western Weighing and Inspection Bureau. Furthermore, it is without contest that the Milwaukee office expressly certified the first thirty-six shipments subsequently subject to the correction notice.

This original and continuing consensus of the shipper, the carrier, and the Weighing Bureau as to the proper application of Rule 3 strongly suggests that the interpretation followed by Hunt-Wesson was well founded on the ambiguity of the rule.

As the Commission found in Appalachian Power Co. v. Norfolk & W. Ry. Co., 152 I.C.C. 389, 392 (1929):

“While the facts that the carrier and the public generally have agreed on the construction of a tariff for a long period of time and shippers and receivers of freight have accepted that interpretation and paid freight charges in accordance therewith without protest is not conclusive that the interpretation is correct, such facts are entitled to considerable weight and are persuasive that such an interpretation is the fair and reasonable one to be gathered from the tariffs themselves.”

Accord, Albertson & Co. v. Akron, C. & Ry. Co., 174 I.C.C. 725, 733 (1931).

Moreover, when the conflict in the interpretation of Item 1587 respecting Hunt-Wesson became apparent, the Trans-Continental Freight Bureau, which had originally published the tariff, issued a clarification designed to dispel the real controversy over the correct interpretation among the weighing bureaus and to restate its member lines’ original intent in promulgating the rules implementing Item 1587. The substance of the clarification was as follows :

“In publishing this tariff, it was the intent of the TCFB and its participating carriers to permit a shipper to meet the forwarding requirements of the rate in three ways:
(a) by forwarding the exact cases received under Item 1587;
(b) by forwarding cases of the same commodities as those received under Item 1587 even though the cases forwarded do not arrive under Item 1587; or
(c) by forwarding different commodities so long as the different commodities also arrive under Item 1587.”

The conflict among weighing bureaus compelling the issuing of the above clarification clearly demonstrates the ambiguity of the rule in question, which this court resolves in favor of the shipper, Hunt-Wesson.

Under our interpretation of the tariff, since Hunt-Wesson forwarded within a year at least one million pounds of the identical commodity at a rate of at least 17% cents per 100 pounds, judgment should have been entered for the defendant. Accordingly, judgment for the plaintiff is vacated and the cause is remanded for the entry of judgment for the defendant.

Vacated and remanded.

      . The action arose under 49 U.S.C. §§ 1-26, and this court has accorded jurisdiction under 28 U.S.C. §§ 1331 and 1337.

      . The Trans-Continental Freight Bureau is the tariff publishing agent for the Chicago and North Western and certain other railroads. Section 5a of the Interstate Commerce Act (49 U.S.C. § 5b) provides for the formation of such organizations.

      . The tariff was published and filed with the Interstate Commerce Commission in 1965 and became effective on October 15th of that year.

      . For the purposes of this case, rail freight rates can generally be classified as either flat rates or as proportional rates. Flat rates, which carriers publish to cover substantially all types of rail traffic, constitute the basic rates applicable to shipments from station A to station B. A flat rate does not depend for its application on any subsequent transportation of the traffic beyond station B; in other words, a flat rate applies to rail traffic which originates at station A and is consigned for final delivery to station B. On the other hand, when particular situations create special needs carriers often publish lower rates covering the same traffic from station A to station B, called proportional rates which do depend for their application upon a subsequent transportation of the traffic beyond station B to station 0. In other words, traffic moving from station A to station B must subsequently move to station O in order to remain eligible for the proportional rate. Publishing such divergent rates does not constitute discrimination if the carriers can justify the lower proportional rate on the inbound shipment into station A on the ground that the same traffic will later move outbound at the flat rate applicable between station B and station C.

      . Item 6150 of the tariff published a flat rate of $1.43 per hundred pounds, whereas Item 1587 published a proportional rate of $1.15 per hundred pounds.

      . The district court, however, disagreed with the Western Weighing and Inspection Bureau’s finding that thirty-seven of the shipments could not qualify for the proportionate rate on the additional ground that notice was not received by the Bureau within the ten days required by Rule 2. The lower court held that while the Bureau may have received letters of intent beyond the specified time period, the Bureau had actual notice by means of the copy of the freight bill forwarded the Bureau within the ten-day period. The Railway did not file a cross-appeal from this ruling.

      . This is a general principle of construction, as indicated by Section 235(e) of the Restatement of Contracts which provides that “If the conduct of the parties subsequent to a manifestation of intention indicates that all the parties placed a particular interpretation upon it, that meaning is adopted if a reasonable person could attach it to the manifestation.”

      . John W. Owens, General Traffic Manager for Hunt-Wesson, stated, in elaborating the statement of the Chairman of the Transcontinental Freight Bureau concerning the existence of a controversy among the Weighing Bureaus respecting interpretation of the rule:
      “In this regard it should be noted that the Southern Weighing and Inspection Bureau, the Eastern Weighing and Inspection Bureau and the St. Louis and New Orleans offices of the Western Weighing and Inspection Bureau have all continuously approved and certified Hunt-Wesson’s records on the basis of the same record keeping system questioned in this case by the Milwaukee office of the Western Weighing and Inspection Bureau. It should also be noted that even the Milwaukee office of the Western Weighing and Inspection Bureau initially approved the Hunt-Wesson record keeping system and initially certified at least 36 multiple car shipment as qualifying with the requirements of the tariff. It was not until some time after June, 1969, that the Milwaukee office of the Western Weighing and Inspection Bureau questioned Hunt-AVesson’s record keeping system.”


author: RONEY, Circuit Judge:

text:
    Alvin G. DOYLE, Plaintiff-Appellant, v. BETHLEHEM STEEL CORPORATION et al., Defendants-Appellees.
    No. 74-2450
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 9, 1974.
    Darryl J. Tschirn, Gothard J. Reck, New Orleans, La., for plaintiff-appellant.
    George E. Duncan, Beaumont, Tex., for Mathiasen Tanker, etc.
    Dennis Lewis, Asst. U. S. Atty., Beaumont, Tex., for United States.
    O. J. Weber, Jr., Beaumont, Tex., for Bethlehem Steel Co.

      Before COLEMAN, DYER and RO-NEY, Circuit Judges.

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

   RONEY, Circuit Judge:

Alvin G. Doyle, a shipyard worker employed by Bethlehem Steel Corporation, was injured while working aboard the USNS Yukon, a tanker owned by the United States of America. The USNS Yukon was operated by the Military Sea Transportation Service of the Department of the Navy, through a cost plus, fixed-fee arrangement with Mathiasen’s Tanker Industries, Inc., whereby Mathi-asen’s was engaged to manage and conduct the business of the Government with respect to the operation of certain Navy tankers. Doyle filed a complaint against the United States and Mathi-asen’s for damages for personal injuries under theories of general maritime negligence and unseaworthiness. Mathi-asen’s filed a motion for .summary judgment alleging that under the Public Vessels Act, 46 U.S.C.A. §§ 781-790, and the Suits in Admiralty Act, 46 U.S.C.A. §§ 741-752, Doyle’s exclusive remedy was against the United States. The district court granted the motion and dismissed Doyle’s claim against Mathi-asen’s. Doyle appeals pursuant to 28 U. S.C.A. § 1292(a) (3). We affirm.

Doyle cites no authority and makes no argument that casts doubt upon the statutory language which bars admiralty claims against the United States’ agents operating United States’ vessels. Although the Suits in Admiralty Act at 46 U.S.C.A. § 741 exempts vessels owned by the United States from in rem actions, section 742 provides that a libel in personam may be brought against the United States in cases where an admiralty proceeding could be maintained were the vessel privately owned or operated. Section 745 then provides that such remedy is exclusive of any action against the agent or employee of the United States whose act or omission gave rise to the claim.

. where a remedy is provided by this chapter it shall hereafter be exclusive of any other action by reason of the same subject matter against the agent or employee of the United States . . . whose act or omission gave rise to the claim.

46 U.S.C.A. § 745.

To circumvent this clear statutory bar to the suit against Mathiasen’s, Doyle makes two contentions, one legal and one factual. First, Doyle contends that the Suits in Admiralty Act and the Public Vessels Act, as it incorporates the provisions of the Suits in Admiralty Act, were enacted as wartime measures to protect third persons managing or operating vessels in a time of crisis and that, in a time of peace, the statutes should not be construed to bar an injured party’s cause of action against a tortfeasor. Second, Doyle asserts that an issue of material fact exists as to whether Mathiasen’s actually was an “agent” of the United States under the provisions of the statutes in question.

Doyle’s contention that the exclusivity provision of the Suits in Admiralty Act should be judicially repealed in times of peace is unconvincing. The same argument was rejected by the Second Circuit in Carter v. American Export Isbrandtsen Lines, Inc., 411 F.2d 1185 (2d Cir. 1969). The facts of the Carter case are quite similar to those of the case at bar. In Carter, a seaman aboard the SS Exton, a vessel owned by the United States and operated by American Export Isbrandtsen Lines, Inc. under a standard form General Agency Agreement, filed suit against American Export for injuries he sustained on board ship in Saigon, South Viet Nam. The District Court for the Southern District of New York granted American Export’s motion for summary judgment, in which American Export relied upon the exclusivity clause of the Suits in Admiralty Act. In affirming the summary judgment, the appellate court stated:

Carter admits that to prevail in his attempt to sue the general agent rather than the government he must persuade us to depart from our prior decision in Hanlon v. Waterman Steamship Corp., 265 F.2d 206 (2d Cir. 1959). He argues that Hanlon and Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed.2d 1692 (1949) also in point, were based on wartime measures and statutes no longer applicable to the present situation. We remain unconvinced. We are satisfied, as other courts have been, that the rule remains effective. See Petition of the United States, 367 F.2d 505 (3d Cir. 1966); Smith v. United States, 346 F.2d 449 (4th Cir. 1965).

411 F.2d at 1186.

The Fourth Circuit has likewise upheld the statute. In Smith v. United States, 346 F.2d 449 (4th Cir.), cert. denied, 382 U.S. 878, 86 S.Ct. 163, 15 L.Ed.2d 119 (1965), the Court held that seamen injured on board a vessel owned by the United States but operated under a contract of management by an. agent of the Government were precluded by the Suits in Admiralty Act from suing the agent. Noting that Congress in 1950 amended the Suits in Admiralty Act, originally passed in 1920, the Court explained the purpose behind the amendment.

The intent of the 1950 amendment to the Suits in Admiralty Act, promulgating the proviso excluding the agent from suability, was not to keep alive the liability of a private person, firm or corporation having charge of a Government ship. It was just to the contrary. It was the adoption by Congress of the exclusivity principle enunciated in Cosmopolitan Shipping Co. v. McAllister, supra, 337 U.S. 783, 69 S.Ct. 1317 [93 L.Ed. 1692]. Another purpose was to designate unequivocally the one to whom a claim for loss caused by the Government’s ship should be directed. The legislative history avows this intent and object of the Act. Sen.Rep. No.1782, 81st Cong. 2d Sess. (1950); 1950 U.S.Code Cong.Service, p. 4209.

346 F.2d at 453-454.

Since 1950 the wording of the Suits in Admiralty Act, specifically 46 U.S.C.A. § 745, has remained unchanged by Congressional amendment. The 24 years which have ensued since the date of the amendment have seen both armed conflict and peace. The language of the statute, the same now as then, does not limit the exclusivity provision of the Act to times of war and we cannot amend by judicial decree what Congress itself has chosen not to amend for almost a quarter of a century. Doyle’s exclusive remedy for the injuries which he sustained while working on the USNS Yukon is against the United States, and he cannot assert a claim if Mathiasen’s was the agent of the United States in operation of the vessel.

Doyle asserts there is an issue of material fact as to whether Mathiasen’s was the “agent” of the United States in the operation of the USNS Yukon. He argues that the contract between Mathiasen’s and the United States, annexed as an exhibit to the motion for summary judgment, does not specifically mention the USNS Yukon by name.

Under Rule 56, F.R.Civ.P., summary judgment is not to be granted if there is a genuine issue of material fact. A question of fact is not at issue, however, when reasonable men could not differ on the existence of that fact. Orozco v. State Farm Mutual Automobile Ins. Co., 360 F.Supp. 223 (S.D.Fla.1972), aff’d 480 F.2d 923 (5th Cir. 1973).

An examination of the evidence reveals no genuine issue as to the fact that Mathiasen’s was the “agent” of the United States in the operation and management of the USNS Yukon. Although Mathiasen’s contract entitled “Contract for Operation of U. S. Navy Tankers” does not refer to the USNS Yukon by name, the depositions of Stanley J. Hamm, Chief Officer of the USNS Yukon, and H. W. Berry, Port Engineer for Mathiasen’s, establish that Mathi-asen’s operated the USNS Yukon for the United States Navy. Berry testified as follows:

Q. During the time you were employed by Mathiasen’s Tanker Industries what type of vessels did you work on?
A. Oil tankers.
Q. And were they owned by Mathi-asen’s Tanker Industries?
A. Some were, some were not. In other words Mathiasen’s owned four ships and operated somewhere between ten and twenty-eight ships for the Navy.
Q. For the United States Navy ?
A. Yes. Directly under the Military Sea Lift Command.
Q. All right, and did you serve on the USNS YUKON at any time?
A. Yes. . . .
Q. How about as Port Engineer?
A. Yes. .
Q. Now the USNS YUKON — what does the USNS stand for?
A. United States Navy Ship.
Q. All right to your knowledge by whom was the USNS YUKON owned ?
A. United States Government. It’s a publicly owned vessel.
Q. All right what part did Mathi-asen’s Tanker Industries play in connection with the operation of this vessel?
A. Mathiasen’s only operated the ship for the Navy, and at a fixed fee.

Both Hamm and Berry identified a Certificate of Inspection issued by the United States Coast Guard which describes the USNS YUKON as a Navy tankship, in service, civilian manned. Cf. Smith v. United States, 346 F.2d 449 (4th Cir.), cert. denied, 382 U.S. 878, 86 S.Ct. 163, 15 L.Ed.2d 119 (1965), Mission Santa Ynez, 1 A.M.C. 25 (C.D.Cal.1967). Doyle has not submitted any contrary evidence on this issue.

The judgment of the district court granting Mathiasen’s motion for summary judgment is hereby affirmed.


author: GEWIN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Bernard L. FERG, Defendant-Appellant.
    No. 73-3814.
    United States Court of Appeals, Fifth Circuit.
    Dec. 9, 1974.

      Thomas D. McDowell, Corpus Christi, Tex., Joseph C. Santaguida, Philadelphia, Pa., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Anna E. Stool, Staff Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before RIVES, GEWIN and GOLDBERG, Circuit Judges.
   GEWIN, Circuit Judge:

In this case the government seeks an affirmance of the conviction of a defendant who was only tangentially involved in the alleged unlawful trafficking of marijuana. Because we conclude that the government has completely failed to sustain its burden of proof, we reverse. The appellant, Bernard Ferg, was indicted, tried and convicted of the alleged possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1).

In appealing from a non-jury finding of guilty, Ferg raises a number of Fourth and Fifth Amendment challenges, as well as a claim of insufficiency of the evidence. Because our resolution of the issue concerning the sufficiency of the government’s evidence is dispositive of this case, we need not consider the constitutional claims.

Ferg was a passenger in an automobile driven by his co-defendant Shaw when it was stopped by the United States Border Patrol at an immigration check point in Texas some fifty miles from the Mexican border during the early morning hours of August 16, 1972. After determining that both persons in the front seat were American citizens, the inspecting officer shined his flashlight into the back seat to check for additional persons. Upon discovering a three inch gap between the back seat and the frame of the car, the officer directed both men to step out of the vehicle. The officer testified that in response to his question as to what was hidden behind the back seat, one of the men said “that’s marijuana in there.” In the darkness, the officer was unable to determine which suspect made the remark. Ferg denied at trial that any such declaration was made. The officer then reached behind the seat and discovered thirteen bricks of marijuana.

One of the agents who arrested Ferg and Shaw and transported them to jail testified that Shaw admitted purchasing the marijuana in Brownsville, Texas. Another agent testified that Ferg stated that he and Shaw were “traveling companions” from Pennsylvania.

Ferg and Shaw were tried jointly before the district court and found guilty. Ferg received a three year sentence which included three months of confinement and the remainder on probation.

LI — 3] We are aware, of course, that in reviewing the sufficiency of the evidence supporting a criminal conviction, we are bound by the dictates of Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), which requires that we view the evidence in the light most favorable to the government. While this standard is unequivocal, Glas-ser does not require complete judicial abdication to the determination of the trier of fact. United States v. Peterson, 488 F.2d 645, 649 (5th Cir. 1974). Glasser explicitly requires that a conviction be supported by “substantial evidence.” 315 U.S. at 80, 62 S.Ct. at 469, 86 L.Ed. at 704. Moreover, since all the evidence against Ferg is circumstantial, we must determine that the inferences to be drawn from the evidence are not only consistent with guilt but inconsistent with every reasonable hypothesis of innocence. Montoya v. United States, 402 F.2d 847, 850 (5th Cir. 1968). We conclude that the government failed to produce the requisite “substantial evidence” to establish that Ferg, in fact, possessed the marijuana in violation of the statute.

Constructive as well as actual possession of contraband will sustain a conviction under 21 U.S.C. § 841(a). United States v. Hernandez, 484 F.2d 86, 87 (5th Cir. 1973). Possession may be joint among various defendants, and such possession may be established by circumstantial evidence. United States v. Stephenson, 474 F.2d 1353, 1355 (5th Cir. 1973); United States v. Mendoza, 433 F.2d 891, 896 (5th Cir. 1970); Montoya v. United States, 402 F.2d 847, 850 (5th Cir. 1968). In order to establish constructive possession, the government must produce evidence showing ownership, dominion, or control over the contraband itself or the premises or vehicle in which the contraband is concealed. United States v. Martin, 483 F.2d 974 (5th Cir. 1974); Garza v. United States, 385 F.2d 899 (5th Cir. 1967); Smith v. United States, 385 F.2d 34 (5th Cir. 1967). In other words, there must be some nexus between the accused and the prohibited substance. Proof of physical proximity to controlled drugs is not sufficient to establish either actual or constructive possession. As this court has consistently observed, “mere presence in the area where the narcotic is discovered or mere association with the person who does control the drug or the property where it is located, is insufficient to support a finding of possession.” United States v. Stephenson, 474 F.2d 1353, 1355 (5th Cir. 1973). Accord, United States v. Gloria, 494 F.2d 477, 483 (5th Cir. 1974); United States v. Horton, 488 F.2d 374, 381-382 (5th Cir. 1974); United States v. Martin, 483 F.2d 974, 975 (5th Cir. 1974).

The facts of this case illustrate the logic of this “mere presence” rule. The government presents only two pieces of circumstantial evidence in an attempt to link Ferg with the seized marijuana. Ferg was traveling with Shaw, the person who admitted having purchased the marijuana, and Ferg was a passenger in the car in which the marijuana was concealed. Beyond the admission by Ferg that he was a traveling companion of one guilty of illegal possession of marijuana, the government failed to establish that Ferg in any way violated 21 U.S.C. § 841(a)(1). The government’s evidence failed to prove that Ferg had ever maintained possession of the contraband or had any intention of participating in the distribution of it. See United States v. Canada, 459 F.2d 687, 689 (5th Cir. 1972). Shaw, his companion, in no way implicated Ferg in the statement he made to the federal agents. There was no evidence to show that Ferg and Shaw had traveled together for a sustained period of time after the marijuana was admittedly obtained by Shaw. Moreover, the government did not establish that Ferg had rented the car or even shared the cost of rental. It was not even shown or claimed that Ferg had ever driven the car or that he could drive an automobile. We do not accept the government’s apparent invitation to infer guilt by association.

Ferg did not move for a new trial in the district court on the issue of the sufficiency of the evidence. In these circumstances, we find it inappropriate to subject him to the possibility of further prosecution. United States v. Horton, 488 F.2d 374 (5th Cir. 1973) ; United States v. Apollo, 476 F.2d 156, 158 n. 1 (5th Cir. 1973); United States v. Restano, 449 F.2d 485 (5th Cir. 1971); United States v. Musquiz, 445 F.2d 963 (5th Cir. 1971). Accordingly, the judgment of conviction is reversed and the case is remanded with instructions to vacate the judgment of conviction and to enter a judgment of acquittal.

Reversed and remanded with directions.

      . The relevant portion of 21 U.S.C. § 841 provides:
      (a) Except as authorized by this subchap-ter, it shall be unlawful for any person knowingly or intentionally—
      (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance ;

      . The record does not reveal the distance between the checkpoint and Brownsville, a town situated near the Mexican border. At oral argument, counsel for Ferg stated that the two points are approximately seventy-five miles apart. Counsel for the United States did not contest this assertion.

      . In Q-lasser, the Supreme Court expounded the standard for review of a jury finding of guilty. It is generally accepted that the scope of review of a judicial determination of guilt is the same. 8 Moore’s Federal Practice, j[ 23.05, p. 23-14. This circuit has consistently applied the same standard to both jury and non-jury convictions. 8:e, e.g., Gorman v. United States, 323 F.2d 51 (5th Cir. 1963).

      . Ferg was not convicted of conspiring to possess the marijuana, 18 U.S.C. § 371 (1966) or of aiding or abetting Shaw in his possession of it, 18 U.S.C. § 2(a) (1969).


author: TUTTLE, Circuit Judge:

text:
    Robert CONNOLLY, Plaintiff-Appellant, v. PAPACHRISTID SHIPPING LTD. et al., Defendants-Appellees.
    No. 74-1214.
    United States Court of Appeals, Fifth Circuit.
    Dec. 9, 1974.

      Martin L. Katz, Herbert Zelenko, New York City, for plaintiff-appellant.
    Victor T. Hudson, William W. Stou-denmire, Mobile, Ala., for defendants-ap-pellees.
    Before TUTTLE, RONEY and GEE, Circuit Judges.
   TUTTLE, Circuit Judge:

This case involves a dismissal of plaintiff’s claim with prejudice for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure.

The plaintiff, Robert Connolly, a citizen of Grand Caymen Islands, British West Indies, was an able-bodied seaman on a vessel owned by the defendant. On October 10, 1972, he was injured in an accident at sea and subsequently filed suit in the Southern District of Alabama on October 16, 1972 alleging both Jones Act and general maritime claims for personal injury. The case proceeded in an orderly fashion. Discovery was commenced immediately, and by January 1, 1973 the plaintiff filed six depositions with the court. On defendant’s motion discovery was twice extended, until it was ultimately cut off on April 16, 1973. During this time the plaintiff filed lengthy interrogatories and a motion for production of documents. The pre-trial conference set for June 6 was delayed, and several times during the succeeding months the trial court heard status reports on the proceedings in the case. The docket entries do not show the substance of these status reports, nor was a record taken of them.

On September 14, 1973, the cause was reset for trial on October 16, 1973. From the trial court’s order of October 16, 1973 we learn that sometime during September the plaintiff’s counsel represented to the trial court that the plaintiff had been unwilling to communicate with them, and had refused to respond to an offer of compromise the plaintiff’s local counsel and the defendant had arrived at which the plaintiff’s counsel thought was a satisfactory settlement.

On October 12, 1973 the plaintiff’s local Mobile counsel moved the court to allow them to withdraw from the case, and on October 16 the trial court granted this motion. The trial court ordered the plaintiff to inform the court no later than November 1 of local replacement counsel, and further ordered the plaintiff to be prepared to comply with its order setting the pre-trial for November 21. The order specified that copies would be mailed to the plaintiff in Grand Caymen, and the plaintiff’s Grand Caymen counsel.

On November 2, one day after the deadline established by the trial court for selection of local replacement counsel, the plaintiff’s original counsel in the case (who had by this time withdrawn) moved the court on behalf of the plaintiff to dismiss the suit without prejudice, stating in the motion that the plaintiff had engaged New York counsel who intended to prosecute the matter. This motion was denied on November 8. On November 21, at the pre-trial conference, new counsel appeared on behalf of the plaintiff, who moved the court to permit them to appear as counsel for the plaintiff, and further moved for a continuance so that they would adequately be able to represent the plaintiff’s interest. In that motion, this new set of local Mobile counsel stated to the court that they had been retained only the day before, and that they were unprepared to participate in the pre-trial conference at that time. The trial court’s response was to dismiss the suit with prejudice on the grounds that the plaintiff had failed adequately and diligently to prosecute the matter, and had failed to comply with the court’s pre-trial order. Plaintiff appeals this ruling of the trial court. We reverse.

The trial court’s decision to permit the plaintiff’s original counsel to withdraw on October 16 was largely premised on the representation of that counsel that the plaintiff had refused to communicate to them his decision on the offer of compromise. We do not believe the decision of the trial court to dismiss with prejudice complies with the standards established by this Court in Flaksa v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir. 1968), cert. denied, 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1969) and Durham v. Florida East Coast Railway Co., 385 F.2d 366 (5th Cir. 1967).

It is well established that under Rule 41(b) of Federal Rules of Civil Procedure the district court has discretion to dismiss a suit for failure to prosecute if the plaintiff fails to comply with the trial court’s orders or with the rules of civil procedure. Link v. Wabash Railway Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), see, generally, 5 Moore, Federal Practice, # 41.11 (2d ed. 1974). Such a dismissal, however, must be within the sound discretion of the court, and this Court will review it to determine whether or not the trial court has abused that discretion. Pond v. Braniff Airways, Inc., 453 F.2d 347 (5th Cir. 1972); Brown v. Thompson, 430 F.2d 1214 (5th Cir. 1970). We have previously felt that this remedy is so drastic that it “should be used only in extreme situations, as the court has a wide range of lesser sanctions.” Flaksa v. Little River Miarine Construction Co., supra, 389 F.2d at 887-888. In general, the test is whether there is “a clear record of delay or contumacious conduct by the plaintiff,” Durham v. Florida East Coast Railway Co., supra, 385 F.2d at 368, and whether “lesser sanctions would not serve the best interest of justice.” Pond v. Braniff Airways, Inc., supra, 453 F.2d at 349; Brown v. Thompson, supra, 430 F.2d at 1215. In general, this Court has made it clear that lesser sanctions normally will suffice, and except in the most “flagrant circumstances,” Flaksa v. Little River Marine Construction Co., supra, 389 F.2d at 888, the trial court ought not to resort to sanctions which deprives the litigant of his opportunity to pursue his claim. Woodham v. American Cystoscope Co. of Pelham, 335 F.2d 551 (5th Cir. 1964); Council of Federated Organizations v. Mize, 339 F.2d 898 (5th Cir. 1964).

We recognize the real importance of cooperation from parties and attorneys to guarantee that litigation proceeds expeditiously on the all to crowded dockets of the district courts. We recognize further that a court has the inherent power to manage its calendar and to guarantee that errant lawyers and parties recognize that it has the power to impose reasonable and appropriate sanctions to ensure that its orders are complied with. We do not believe, however, that the ultimate sanction of dismissal with prejudice was appropriate under the facts of this case.

We recognize first that it is unclear the extent to which the plaintiff failed to cooperate with his Mobile counsel. We note secondly that while the trial court’s order of October 16 directed that it be mailed to the plaintiff, there is no indication either the date on which he received notice, or indeed whether he received it at all. We cannot ignore the practical realities that a foreign national who pursues the occupation of seaman might find it difficult to comply with an order giving him only a very few days to find new counsel in Mobile, Alabama when he receives it in the British West Indies.

Finally it appears to us that the plaintiff made substantial efforts to comply with the court’s order. We do not know the date on which the plaintiff requested his original counsel to move for dismissal without prejudice. We only know that that counsel filed papers but one day after the deadline established by the trial court for selection of new counsel. After this request was denied, the plaintiff did select new local counsel, but was unable to meet with them in time for them to comply with the order setting a pre-trial for November 21. On this record, therefore, we are not able to find the type of contumacious and vexatious delay occasioned by the willful disregard of a plaintiff for the orderly procedures of a trial court so as to justify that court’s dismissal of the plaintiff’s possibly meritorious claim.

We therefore reverse and remand for reinstatement on the trial court’s docket.

      . There is neither in the motion itself nor in any accompanying affidavit counsel’s representation as to these matters. The record is silent as to the actual facts relating to appellant’s failure to cooperate, except for the trial court’s recitation in its order. At oral argument in this Court the plaintiff’s present counsel sought to introduce documents ■which seem to show that the plaintiff’s original counsel were in continued communication with the plaintiff’s Grand Cay-men counsel throughout the month of September, and that their representations to the court in September that the plaintiff had not indicated to them his decision on the offer of compromise might have been untrue, and that at the very least the plaintiff had communicated to them Ms firm intention to pro ceed to trial by the time they filed their motion to withdraw on October 12. These documents would tend to show that the district court was misinformed on October 16 when it granted the plaintiff’s counsel motion to withdraw based on his refusal to cooperate. Since this evidence could not be considered at this stage of the case, we do not consider it as the basis of reversing the judgment. The proper manner to bring this new evidence forward would have been via a Rule 60(b) motion before the trial court. Because we do not rely on this new material, the failure to bring it to the attention of the trial court is not essential.


author: WISDOM, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles Linden CLEMENT and Donald Clem Lohman, Jr., Defendants-Appellants.
    No. 74-1436
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit
    Dec. 9, 1974.
    J. V. Eskenazi, Federal Public Defender, Theodore J. Sakowitz, Asst. Federal Public Defender, Miami, Fla., for defendants-appellants.
    Robert W. Rust, U. S. Atty., Kerry J. Nahoom, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

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

   WISDOM, Circuit Judge:

In this narcotics case the district judge explained to the jury that the term “rip-off”, used by the defendants’ attorney in referring to their attitude toward actions of codefendants, was limited — to the judge’s knowledge — to use in a narcotics context. We take judicial notice of the fact that in ordinary speech the term “rip-off” is used to refer to any fraud, confidence game, or deceitful overreaching by one person of another or of others. In the circumstances of this case, the evidence of guilt was far from overwhelming. The error therefore was not harmless. The effect of the error was to deprive the defendants of a fair trial. We reverse and remand for a new trial.

Charles L. Clement and Donald C. Lohman were convicted on three counts of conspiracy to import cocaine, in violation of 21 U.S.C. § 952(a), and of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a) (1). They had turned over $7500 to one John Kennedy, a co-worker with Lohman on a railroad in Peoria, Illinois. Kennedy, Steven Creighton, Mary Ellen Teague and her daughter flew to Lima, Peru, via Jamaica. While in Lima, Kennedy and Creighton bought a quantity of cocaine for $5,000. Mrs. Teague carried it to Jamaica, strapped to her body. Later, Steven Kennedy, John Kennedy’s brother, was the courier from Jamaica to Miami. At Miami agents arrested the two Kennedys, Creighton, and Mrs. Teague. Clement and Lohman were in Miami at the time. These facts are undisputed.

The two Kennedys, Creighton, and Teague pleaded guilty. Clement and Lohman, however, pleaded not guilty. They denied that they had ever intended to finance a drug purchase. Instead, they alleged that they advanced the money for the purchase of merchandise in Jamaica and Peru for importation and resale in the United States.

Lohman testified that Kennedy approached him, as he had the preceding August, with the idea of importing consumer goods from Jamaica and Peru for resale in Peoria at a substantial profit. He also testified that Kennedy repre: sented that he had been to Peru previously and had imported goods from there on a small scale; that he knew an individual in Jamaica who could be of assistance in procuring products in that country. He displayed the business card of a Jamaican import firm. Kennedy discussed among other items, costume jewelry, llama rugs, leather coats, purses, pictures and rings. He displayed a leather coat that he said was acquired in Peru for a modest sum that sells in Peoria for five times its cost. On another occasion Kennedy took Lohman to the Omega Boutique in Peoria, and told Lohman that he had in the past sold merchandise to that shop. Ultimately, Lohman was convinced of the wisdom of importing merchandise from Peru and Jamaica and assembled $7,500 to invest in the venture. Lohman and Clement testified that as soon as they learned that the money had been used to buy cocaine, they told the others to return the cocaine for a refund of their money. Informed that the seller would not cooperate, they then, so they say, told their co-defendants to jettison the drugs.

Lohman’s testimony was corroborated by Clement, John Kennedy, and Creighton. It was challenged, in part, by Mrs. Teague who, as a government witness, contended that Clement and Lohman furnished the $7,500 for the purchase of cocaine. She added, however, that immediately after the cocaine was acquired, and while it was yet in Jamaica, Lohman and Clement said that they did not want to have anything to do with it. Additionally, Mrs. Teague acknowledged that she met Lohman “[j]ust a couple of days” before departing on her trip to Peru, and met Clement “[pjrobably about a week” prior to meeting Lohman.

Lohman was the last witness to testify. On direct examination, he attempted to explain why he and Clement, having allegedly dissociated themselves from the drug venture, had been in Miami at the time that the cocaine was introduced there. He was asked, “Did there come a time that you and Mr. Clement thought you were ripped off?” He answered affirmatively and, under further questioning, explained that he undertook the trip to Miami to confirm his suspicion that his money had never in fact been spent. The trial judge questioned him sharply about this explanation for the trip. In the course of this questioning, the trial judge interjected his opinion that to be “ripped off” is to advance money for the purchase of narcotics and receive nothing in return. He asserted that the usage of the term “rip off” was limited to narcotics contexts.

The defense counsel took issue with these comments and, in the presence of the jury, offered to introduce evidence to show that “rip off” carries no such narrow connotation, that, on the contrary, it is simply the slang synonym for “defraud”. The judge’s response, was: “Well, I will take your statement as a statement of fact. I will also add that the only time I have ever used it in almost nine years on the bench has been in connection with narcotics transactions.”

The trial judge was incorrect in so delimiting the meaning and connotation of the expression “rip off”. Reporters may refer to an unsuccessful stunt for profit as a “rip-off” on the public that paid to see the stunt. A candidate for political office may refer to his opponent’s voting record as a “rip-off” on the constituents. Americans who have had their ruby mine expropriated without ány compensation may refer to their having been “ripped-off” by the expropriating government. A confidence game is a “rip-off”. And, if indeed, Lohman and Clement were telling the truth, they were “ripped-off” when their money was used to buy drugs instead of legitimate merchandise.

The power of a federal judge to comment on the evidence is broad, but it must be exercised with care:

“In commenting upon testimony he may not assume the role of a witness. He may analyze and dissect the evidence, but he may not either distort it or add to it. His privilege of comment in order to give appropriate assistance to the jury is too important to be left without safeguards against abuses.”

Quercia v. United States, 1933, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321.

We examine a trial judge’s comments in context, in order to determine whether they appear to have prejudiced the defendants’ trial. United States v. Cisneros, 5 Cir. 1974, 491 F.2d 1068. Here the remarks were made during the testimony of Lohman, the last witness to testify, while he was attempting to explain his relationship with John Kennedy and the reason for his presence in Miami. His explanation was manifestly critical to his defense. The comments of the trial judge, however, contradicted Lohman’s explanation.

“A [trial] judge’s words to the jury carry an authority bordering on the irrefutable.” Moody v. United States, 5 Cir. 1967, 377 F.2d 175. We conclude that the defendants/appellants were so prejudiced as to have been denied their right to a fair trial.

Reversed and remanded.

      . Of this sum, Lohman borrowed $2,500 from a bank and $5,000 from his friend and coworker, Clement, who himself borrowed $2,000 from a bank.

      . BY THE COURT:
      Q. What does the expression “ripped off” mean to you?
      LOHMAN:
      A. It means to me it’s when somebody takes you, steals something from you or just takes it. That’s the word for today, I guess, what you would call—
      Q. That is what it means to you?
      A. Yes, sir.
      BY THE COURT:
      Q. Don’t you know that the expression “ripped off” is an expression that is confined almost exclusively to narcotics transactions? (Emphasis supplied).
      LOHMAN:
      A. No, sir.
      Q. It is an expression which is used when somebody makes a pretended sale of narcotics to get the buyer into a place where he can rob him?
      A. No, sir. I did not know that.
      Q. That is what the expression means and that is the only thing that I know it means. It relates solely to a pretense of buying narcotics in order to get the buyer in with money and you don’t have any narcotics. You may have some, but your object is to rob him of his money and not give him anything. And that is the expression “ripped off.” (Emphasis supplied).