author: WIDENER, Circuit Judge;

text:
    UNITED STATES of America, Appellee, v. Jerry Howard SIMPKINS and Jesse Howard Simpkins, Appellants.
    No. 73-2509.
    United States Court of Appeals, Fourth Circuit.
    Argued April 4, 1974.
    Decided Oct. 18, 1974.
    Certiorari Denied Feb. 24, 1975.
    See 95 S.Ct. 1327.

      Augustus Anninos, and R. Michael Smith, Norfolk, Va. (Howell, Anninos, Daugherty & Brown, Norfolk, Va., on brief), for appellants.
    Hunter W. Sims, Asst. U. S, Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.
    Before ADAMS  and WIDENER, Circuit Judges.

       U. S. Court of Appeals for the Third Circuit; sitting by designation.

   WIDENER, Circuit Judge;

The defendants were tried and convicted on eight counts of transporting stolen motor vehicles and other stolen goods in interstate commerce, knowing same to be stolen, in violation of 18 U. S.C. § 2312 and § 2314. The principal issues raised in this appeal concern their allegations that they were denied a speedy trial, that the district court erred in not requiring the key prosecution witness to divulge names of others involved in the stolen property operation, and that certain remarks made by the court to defense counsel unfairly prejudiced the trial.

The record shows that the original indictment against the defendants was returned on November 8, 1971, and trial was originally set for March 9, 1972. A four day continuance was granted on March 9, 1972, both because defendants’ counsel was ill and because the key government witness, Ellen O’Meara, had for the first time requested a grant of immunity. The case was continued generally on March 13, 1972 because the government had not had sufficient time to obtain immunity for Miss O’Meara. The immunity request was finally granted on July 7, 1972, but the government was then unable to locate Miss O’Meara until September, 1972, when she was found to be incarcerated in a New York state prison. The United States was unable to obtain her release, on a writ of habeas corpus ad testificandum, from New York state officials until the March, 1973 term of grand jury, when the defendants were reindicted. The trial commenced on May 24, 1973 on the reindietment, the original indictment having been dismissed without prejudice on April 2, 1973.

During this time, the defendants’ attorney had written two letters to the Assistant United States Attorney in charge of the case, and had conversed with him several times, requesting that the indictments be dismissed. No request for a speedy trial was made to the court until the April 2, 1973 hearing on the motion to dismiss.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court set forth a balancing test where four factors are to be considered in determining whether the right to speedy trial was violated: (1) the length of the delay; (2) reasons for the delay; (3) the defendants’ responsibility to assert their right; and (4) prejudice suffered due to the delay. The district court considered these factors, noting primarily that the defendants had not asserted their right to a speedy trial until the April 2, 1973 hearing, and that no prejudice was shown in any event as they had not been incarcerated or otherwise suffered any material damage to their defense. Our examination of the record supports the district court’s finding as to this issue, and we find no error.

The witness O’Meara testified that she acted as a middleman between the members of an organized crime group, which operated primarily in New York City and which stole the items involved, and the defendants, who bought the items and transported them to their place of business in Norfolk, Virginia. She testified in detail concerning the items charged in the indictment, the fact that she typed false bills of sale and invoices for stolen equipment, and often collected money from the defendants for stolen machinery they had purchased. Miss O’Meara stated on cross-examination that she would not reveal the names of some of the main figures in the organized crime ring, at least some of whom had dealt with the defendants, because she feared for her life. The gist of her testimony in this regard was that the defendants did not know many of the members of the ring but did know a few who were involved in delivering the automobiles and machinery in question. Miss O’Meara did reveal the names of three such ring members who had already been arrested, apparently in connection with these or related crimes, and testified concerning these ring members’ relationship with the defendants. The district court overruled defendants’ contentions that she should reveal the names of other crime ring members that she knew, stating that the question was interstate transportation of stolen goods, and that it did not matter who stole the goods. Defendants contended that the names were highly relevant because they could use these unknown persons to prove they had no knowledge the goods were stolen and did not know with whom they were dealing.

We find no merit to the defendants’ contention. Of course, the rule is well settled that the scope of cross-examination is generally within the discretion of the trial court and usually limited to matters brought out on direct. See United States v. Williams, 478 F.2d 369, 371 (4th Cir. 1973); United States v. Chase, 372 F.2d 453, 463 (4th Cir. 1967). But, in any event, we note that the defendants did not attempt to use as witnesses those crime ring members who were named by Miss O’Meara. They have given us no reason to believe that they would have used the unnamed criminal members. We are of opinion the district court acted within its discretion in not requiring the witness to divulge names of persons not directly involved with the crime charged, and whose testimony, if available, could be of little or no value to the defense. In addition, any error committed was harmless. We have had brought to our attention no potential witness with whom the defendants dealt who could not have been subpoenaed.

The defendants also claim error in the court’s denial of their motion for a mistrial based on alleged prejudice resulting from comments of the court to the defense attorney. On several occasions during the four day trial, the court had admonished the attorney as to the improper form of questioning and his comments on the evidence, or made other similar objections to his trial tactics. The most critical exchange between the court and the attorney occurred when the court interrupted a question the attorney directed toward a witness during cross-examination, advised him that he was testifying, and that the form of the question was improper. Quite vigorous in his protest, the attorney remarked that the prosecution had not objected to his form of questioning, and that, in essence, he was not able to properly cross-examine the witness. The court then admonished him as follows:

“ . . . if you will conduct yourself as a lawyer should conduct himself in a courtroom, you will receive every consideration. If you do not wish to proceed in that manner, then you will not receive every consideration ; and there’s no reason for you to raise your voice to the jury or this court.”

During its instructions to the jury on the following day, the court advised the jury that its comments directed toward counsel should not be taken as any indication that it felt the defendants were or were not guilty, nor should the jury attempt to reward or punish the defendants because of any such incidents.

We find no prejudice to defendants. The trial court has a duty to see that the facts are developed and the jury not left confused. The court here acted within its discretion in warning counsel to desist from what it considered to be unnecessary actions. None of the court’s comments were directed to the defendants’ credibility or the strength of their case. The case against them was not a weak one, and the court’s instructions to the jury were sufficient to correct any prejudice which might have resulted because of its comments to counsel. We think this case falls within the holdings of this court in United States v. Dockery, 417 F.2d 330 (4th Cir. 1969) and Butler v. United States, 191 F.2d 433 (4th Cir. 1951).

We have considered the other assignments of error and find them without merit.

The judgment of the district court is accordingly

Affirmed.


source: Caselaw Access Project

author: WINTER, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellant, v. ABBOTT LABORATORIES, a corporation, et al., Appellees.
    No. 74-1230.
    United States Court of Appeals, Fourth Circuit.
    Argued June 4, 1974.
    Decided Oct. 2, 1974.
    Certiorari Denied March 24, 1975.
    See 95 S.Ct. 1424.

      Howard E. Shapiro, Atty., U. S. Dept, of Justice (Thomas E. Kauper, Asst. Atty. Gen., and Roger B. Andewelt, Atty., U. S. Dept, of Justice on brief), for appellant.
    George M. Burditt, Chicago, 111., for Abbott Laboratories and Thomas F. Ellis, Raleigh, N. C., for Herbert M. Gross (James R. Phelps and Burditt & Calk-ins, Chicago, 111., and James C. Little and Hatch, Little, Bunn, Jones, Few & Berry, Raleigh, N. C., on brief), for ap-pellee Abbott Laboratories; (Maupin, Taylor & Ellis, Raleigh, N. C., on brief), for appellee Herbert M. Gross.
    Lucas, Rand, Rose, Meyer, Jones & Orcutt and Louis B. Meyer, Wilson, N. C., on brief for appellee Clarence J. Endicott.
    Lindsay C. Warren, Jr., John H. Kerr, III, and Taylor, Allen, Warren & Kerr, Goldsboro, N. C., on brief for appellee Robert T. O’Donnell.
    C. Kitehin Josey and Josey & Vaughan, Scotland Neck, N. C., on brief for appellee Robert H. Otto.
    John R. Jolly, Jr., and Spruill, Trotter & Lane, Rocky Mount, N. C., on brief for appellee Harry Howell.
    Before WINTER, BUTZNER and WIDENER, Circuit Judges.
   WINTER, Circuit Judge:

The government appeals from the district court’s dismissal of a sixty-count indictment charging Abbott Laboratories (Abbott) and five of its current or former employees with causing the introduction into interstate commerce of adulterated and misbranded intravenous solution drugs in violation of 21 U.S.C. § 331(a). The district court dismissed the indictment (1) because of prejudicial pretrial publicity released by the special prosecutor in answer to an inquiry by a newspaper reporter, prejudicial publicity contained in a press release originating from the Department of Justice, and prejudicial publicity contained in' another press release originating from the Food and Drug Administration (FDA), and (2) because the grand jury which returned the indictment, at the instance of Department of Justice attorneys, considered “prejudicial and inflammatory” information not relevant to its inquiry, which caused it to be biased in derogation of the constitutional rights of the defendants. We think that under the facts of the case, dismissal of the indictment was too drastic a remedy for what misconduct on the part of the government occurred and that the challenged evidence considered by the grand jury was relevant to its investigation and proper to be considered by it. We reverse and remand the case for further proceedings.

I.

In December, 1970, the Center for Disease Control (CDC) of the United States Public Health Service investigated an increase in the incidence of blood poisoning among hospital patients. CDC concluded that between October, 1970, and March 1, 1971, one hundred fifty cases of blood poisoning and nine deaths had occurred in eight hospitals among patients who had received intravenous fluid therapy employing intravenous fluids and intravenous fluid systems manufactured by Abbott. CDC investigators found bacterial contamination of the cap liner in unopened Abbott bottles of intravenous solutions, and they postulated that “the organisms can enter the fluid from the plastic cap liners when the caps are opened and replaced while the bottle is held for later use.” The report of these findings received national media coverage describing the illnesses and deaths and isolation of the “guilty germ” in the cap liner of Abbott bottles. On March 22, 1971, Abbott issued a nationwide recall of its intravenous solutions.

FDA recommended to the Department of Justice that Abbott and those of its employees “responsible” for distribution of the allegedly contaminated intravenous solutions be prosecuted. The matter was presented to a grand jury in a district in which Abbott manufactures intravenous solutions, and the indictment was returned on May 29, 1973.

A. Post-indictment Publicity.

As soon as the indictment was returned, the United States Attorney for the Eastern District of North Carolina notified the news media that he had a press release concerning the indictment. The news department of a Raleigh television station requested an interview with him. The request was granted and the interview held at about 2:00 p. m. in his office. Two special prosecutors from the Justice Department and an attorney from FDA were also present. The interview was conducted in three stages by a television newswoman from the local station. There was first an off-camera interrogation of the government attorneys by the correspondent. Then there was a taped interview of the U. S. Attorney, at which he answered questions that had been submitted in advance. After the taping session, the correspondent continued to interrogate the attorneys for a time.

During the pretaping interrogation, the correspondent asked whether any deaths or illnesses were attributed to the misbranded drugs. One of the special prosecutors replied that “the ,Center for Disease Control in Atlanta previously reported that nine deaths occurred in 1971.” During the subsequent taping session, the correspondent asked the same question of the U. S. Attorney. Not expecting this question to be asked, he replied that the indictment had nothing to do with any deaths. Following the taped interview, the correspondent continued to ask questions concerning deaths attributable to Abbott’s intravenous solution. The answers, in substance, provided the same information as the answer quoted above.

On the six o’clock news that day, the Raleigh TV station broadcast a news report concerning the indictment, which contained the following statements:

Nine deaths and four hundred illnesses have been attributed to contaminated drugs made by a North Carolina company.
the drugs were manufactured by the Abbott Laboratories Hospital Products Division of Rocky Mount.

The taped interview was also broadcast on this program, but the U. S. Attorney’s statement that the indictment had nothing to do with any deaths was omitted.

On the same day, United Press International (UPI) ran a story citing sources in the Justice Department in Washington, containing the following statement:

A federal grand jury has returned criminal indictments against Abbott Laboratories, Inc. and five of its present or former employees on charges involving allegedly contaminated intravenous fluid linked to nine deaths and hundreds of injuries, the Justice Department announced Tuesday.

The circumstances make it clear that the remarks of those present at the interview in the U. S. Attorney’s office in Raleigh were not the source of this news release. Nothing further is apparently known about the actual source of this release than that which appears on its face. This UPI release received the wide publication that could be expected in the case of a wire service of this type.

On May 29, 1973, some hours after the indictment was handed down, the FDA issued a press release in Washington, D. C., containing the following statements:

Five present or former officials of the company also were named in the indictment for interstate shipment of intravenous drugs that were unsterile and dangerous to public health.
The Center for Disease Control, at Atlanta, Georgia, reported fifty deaths from four hundred and twelve patient episodes during late 1970 and early 1971 from septicemias (blood poisonings) which CDC determined to be associated with the use of contaminated Abbott intravenous solutions.
These individuals held positions of responsibility with respect to the adulteration and misbranding for the intravenous drugs named in the indictment.

Both the UPI “nine deaths” release and the FDA “fifty deaths” release received wide coverage throughout the nation in the television, radio and printed media. at the time of the indictment. The “nine deaths” story arising out of the interview with the U. S. Attorney reached the viewers of WRAL-TV of Raleigh, North Carolina, who are spread throughout many of the counties of the Eastern District of North Carolina.

B. Proceedings Before the Grand Jury.

The proof shows that the death or possible death of persons who had received Abbott’s intravenous solutions was mentioned before the grand jury in three separate instances. The first was during the examination of preliminary witnesses, and the last was during the prosecutor’s discussion of the recommended indictment. No transcript for these instances is in the record or available, and further details cannot be stated.

The second instance was during the interrogation of Robert O’Donnell, Abbott’s Director of Quality Assurance, who was named as a defendant in the indictment subsequently returned. Mr. O’Donnell was questioned about an investigation conducted by Abbott in a Detroit hospital which purportedly exculpated Abbott or seriously questioned the findings of CDC. He was asked if that hospital had “had a couple of dead bodies . . from Abbott I. V. solutions,” and O’Donnell said that he could not recall. He was then questioned about certain Detroit newspaper accounts concerning hospital deaths resulting from tainted bottle caps, in an effort to refresh his recollection. Finally, he was asked if his investigator had said that the Detroit newspaper was “crazy as bedbugs” when it reported deaths in Detroit from the use of Abbott solutions. Mr. O’Donnell denied the statement by the investigator.

C. Proceedings in the District Court.

Defendants sought dismissal of the indictment by two motions. On July 13, 1973, they moved to dismiss the indictment on the grounds that the prejudicial publicity engendered by the “nine deaths” story arising out of the WRAL-TV interview with the prosecutor and, independently, out of the UPI release in Washington, and by the FDA’s “fifty deaths” release prevented the defendants from receiving a fair trial. On October 3, 1973, the defendants moved that the indictment be dismissed on the ground that the statements made by the special prosecutor before the grand jury concerning the deaths allegedly caused by Abbott’s intravenous solutions were highly prejudicial and deliberately inflammatory. At the hearing, numerous affidavits, exhibits and memoranda were submitted on both motions. On December 13, 1973, the district court entered an order dismissing the indictment as to all defendants both on the ground that prejudicial publicity precluded a fair trial and on the ground that prosecuto-rial misconduct before the grand jury invalidated the indictment. In its accompanying memorandum, the district court made the following findings in support of its dismissal of the indictment because of prejudicial pretrial publicity:

(1) That defendants had demonstrated that the “nine deaths” and “fifty deaths” stories had sufficiently infected the community so that voir dire could not be used to guarantee the defendants’ constitutional right to a fair trial.
(2) That a continuance would not protect defendants’ right to a fair trial because of the likely recurrent nature of the prejudicial publicity — i. e., the “nine deaths” and “fifty deaths” stories would be continually resurrected at each point at which the case was brought on for trial — and because a continuance to remedy the effect of pretrial publicity caused by the prosecutors would prejudice defendants’ constitutional right to a speedy trial.
(3) That a change of venue would not protect defendants’ right to a fair trial because the government failed to suggest any district in the United States to which the trial could be transferred which had not been infected with the prejudicial publicity.

Throughout, the defendants have maintained that the “nine deaths” and “fifty deaths” stories were false and prejudicial. They claim that it cannot be established that any septicemia deaths were caused by microorganisms that were contained in the cap liners of Abbott’s intravenous solutions when they left the Rocky Mount, North Carolina, plant. They further assert that even if these charges were true, evidence that the intravenous solutions in question had caused septicemia deaths would be inadmissible in a trial upon the charge of distributing adulterated and misbranded drugs in interstate commerce. The district court made no finding of whether the charges in the “nine deaths” and “fifty deaths” stories were true.

II.

We accept, without question, that the pretrial publicity in this case was prejudicial and highly inflammatory. The “nine deaths” and “fifty deaths” stories could unquestionably be expected to have a substantial adverse effect on the impartiality of many persons in the community from which a jury to try defendants would be drawn. And the case is not made easier by the fact that, even if not intentionally inflammatory, the “fifty deaths” story appears to have been a deliberate, conscious statement by FDA, and the “nine deaths” story a conscious, deliberate statement of the Department of Justice in Washington, although probably an inadvertent one by the prosecutors in North Carolina. Irrespective of the outcome of this case, we join in the district court’s condemnation of this conduct and express our strongest disapproval that highly placed legal officers would make a statement of this import with regard to a pending criminal prosecution, and even more so that FDA, which had referred the matter to the Department of Justice, would issue a press release containing such prejudicial material. We are presented, however, with the question of whether this misconduct on the part of the government was so prejudicial to the defendants’ right to a fair trial that it should be redressed by dismissal of the indictment with the consequent effect that the interests of society in enforcement of the law should be terminated before the guilty or innocence of the defendants has been determined. What disciplinary action should be taken in this or any future case against responsible government employees or officials for the patent threat to defendants’ right to a fair trial is not a question before us, although it may subsequently become the subject of separate proceedings.

No case of which we are aware, nor any to which we have been referred, holds that, without resort to the traditional means of effective protection of a defendant’s right to a fair trial, i. e., voir dire, change of venue, continuance, pretrial publicity has been so inflammatory and prejudicial that a fair trial is absolutely precluded and an indictment should be dismissed without an initial attempt, by the use of one or more of the procedures mentioned, to see if an impartial jury can be impanelled. In Wansley v. Slayton, 487 F.2d 90 (4 Cir. 1973), we expressed confidence in the efficacy of voir dire examination as a protection against prejudicial publicity. There we concluded that the combination of (1) a lapse of time between prejudicial publicity and trial, and (2) an extensive and skillful voir dire examination of jurors was sufficient to overcome the prejudice created when a black defendant charged with raping three white women was given widespread, intensive prejudicial pretrial publicity, including a report that he had confessed to the authorities and had retraced his trail of crime. Of course in the instant case, the factor of governmental misconduct in initiating prejudicial pretrial publicity is greater than it was in Wansley ; but this is a distinction, for present purposes, largely without a difference, since the outcome of the case, as we see it, depends upon whether fairness to defendants may still be accomplished and not whether misconduct of the government warrants punishment which also forfeits the rights of society. United States v. Milanovich, 303 F.2d 626 (4 Cir. 1962), cert. den., 371 U.S. 876, 83 S.Ct. 145, 9 L.Ed.2d 115 (1962).

Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), suggest that pretrial publicity may be so prejudicial that no trial by jury drawn from the community in which it was disseminated would be constitutionally fair, and thus that the prosecution should be quashed if a change of venue to an unpolluted community is not possible. In Rideau, it was held that the defendant must be tried by a jury drawn from a community which had not been exposed to telecasts of the defendant’s confessing his guilt to the authorities; and the Court reached this result “without pausing to examine a particularized transcript of voir dire examination of the members of the jury” to determine its effectiveness. 373 U.S. at 727, 83 S.Ct. at 1149. Implicit, if not explicit, in Ri-deau is the notion that defendant might obtain a fair trial by a change of venue, and, accordingly, the Court permitted Rideau to be retried and did not require the prosecution to be terminated. Should a case arise where prejudicial pretrial publicity is so widespread and pervasive that a change of venue would be ineffective to assure a defendant a fair trial, Rideau may mean that it is proper to quash a prosecution.

Whatever may be the ultimate implications of Rideau, we do not think that in this case the district court’s finding that voir dire could not be used to guarantee defendants’ right to a fair trial can be sustained. The prejudicial publicity in the instant case was not as devastating as the prejudicial publicity in Rideau. In Rideau, prejudice was committed by pretrial disclosure of the most persuasive evidence of guilt — the defendant’s own confession. Here, the prejudice may have affected the purity of the jury’s fact-finding process, but it was not direct evidence of guilt, nor even evidence, necessarily admissible at trial. It is not inconceivable that prospective jurors, previously exposed to the publicity, had forgotten it, United States v. Bowe, 360 F.2d 1, 11-12 (2 Cir. 1966); or, x-emembering it, could truthfully and persuasively answer on voir dire that they would be unaffected in their deliberations by their recollection. See Irvin v. Dowd, 366 U.S. 717, 722-723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). The district court’s concern that the publicity might be revived, and the curative effect of the passage of time between original dissemination and trial dissipated if the case were set for trial, is a valid one. But it does not follow that prospective jurors would necessarily receive a second exposure to the “nine deaths” and “fifty deaths” publicity. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), teaches that the district court has wide powers to protect a jury from infection to insure defendants a fair trial, and it is its duty to exercise them to accomplish those results. In sum, we hold that, although in a proper case Rideau may not require resort to voir dire and proof of the results thereof as proof essential to a finding that a defendant may not receive a fair trial so as to warrant dismissal of an indictment, such proof is essential in the instant case. Consequently, the district court’s finding that a fair trial was impossible and its legal conclusion that the indictment should be dismissed cannot stand, since voir dire was not employed.

Because of what we have concluded with respect to voir dire, elaborate discussion of the curative devices of change of venue and continuance is unnecessary. A few comments, however, are in order. Change of venue is a recognized device to overcome pretrial prejudicial publicity because it is not unreasonable to assume that pretrial publicity may receive less dissemination elsewhere than in the jurisdiction in which charges are lodged, or, even if it receives the same degree of dissemination elsewhere, that its prejudicial effect is less than in the jurisdiction where it has special local interest. In many instances change of venue is resorted to only after voir dire establishes that the inability to obtain a fair trial as a result of pretrial publicity exists. Wright, Federal Practice and Procedure, § 342, pp. 627-28 (1969). Because of a defendant’s sixth amendment right to be tried in the district where the crime was allegedly committed, Rule 21, F.R.Cr.P., conditions a change of venue, inter alia, upon the defendant’s request therefor. Absent the request, a change of venue may not be ordered, Parr v. United States, 351 U.S. 513, 523, 76 S.Ct. 912, 100 L.Ed. 1377 (1956) (Warren, C. J., dissenting). Although a change of venue under Rule 21 cannot be imposed on a defendant against his will, the availability of a change of venue as a corrective device undergirds the requirement that a defendant, who declines to request a change of venue but who seeks dismissal of an indictment against him because of allegedly prejudicial pretrial publicity, demonstrate the existence of actual prejudice far more convincingly than was done in the case at bar. A defendant who has unused means to protect his rights should not lightly be granted the extreme remedy of dismissal of the charges against him on less than a conclusive showing that the unused means would be ineffective.

Similarly, a continuance is another corrective device since it allows possible prejudice to fade away from the dimming of recollections. But there are decided limitations on its use stemming from a defendant’s sixth amendment right to a speedy trial. Whether in a given case the granting of a continuance would infringe a defendant’s right to a speedy trial can be determined only by a balancing process, a significant factor of which is the reason the continuance is needed. Barker v. Wingo, 407 U.S. 514, 530-531, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). If a defendant does not request a continuance, or acquiesce in the government’s request therefor, the fact that the continuance is required because of the government’s misconduct in disseminating pretrial prejudicial publicity is a factor weighing heavily against its grant, although not one which is conclusive. Geagan v. Gavin, 181 F.Supp. 466 (D.Mass.1960), aff’d 292 F.2d 244 (1 Cir. 1961). However, the existence of this remedy again undergirds the placing of a heavy burden of proving actual prejudice resulting from the publicity as a basis for dismissal of the charges against him on the part of a defendant who declines to request or join in a request for a reasonable continuance.

III.

We disagree that the indictment should be dismissed because of irrelevant prejudicial and inflammatory information brought to the attention of the grand jury which indicted defendants. Our disagreement follows from our conclusion that the “nine deaths” and “fifty deaths” data was relevant.

The grand jury was investigating possible violations of the federal drug laws. Defendants were indicted, inter alia, for a violation of 21 U.S.C. § 352(j); whether it had been violated was certainly within the scope of the grand jury’s investigation. That statute deems a drug “misbranded” if it is “dangerous to health when used in the dosage, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof.” Evidence that use of Abbott’s intravenous solutions may have been the cause of deaths which occurred manifestly would establish that the solutions were “dangerous to health.” Especially is this so when it is remembered that the proceedings were before a grand jury where the standard of proof was one of probable cause and where strict rules of evidence, applicable at trial, were not fully operative. United States v. Calandra, 414 U. S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Costello v. United States, 350 U.S. 359, 76. S.Ct. 406, 100 L.Ed. 397 (1956); Lawn v. United States, 355 U. S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958); United States v. Johnson, 419 F.2d 56, 58 (4 Cir. 1970), cert. den., 397 U.S. 1010, 90 S.Ct. 1235, 25 L.Ed.2d 423 (1970). Thus, relevancy would not depend upon a conclusive showing, or a showing beyond a reasonable doubt, that the deaths did result from contamination of Abbott’s intravenous solutions. The grand jury was at liberty to indict if it concluded that there was probable cause to believe the existence of the fact; the ultimate determination of the fact would be made at trial.

Defendants were also indicted under 21 U.S.C. § 331(a), which prohibits the introduction of any drug “that is adulterated or misbranded.” While § 331(a) prescribes a crime of which scienter is not a necessary element, it does not follow that, in addition to Abbott, every employee of Abbott would have potential criminal liability; rather, only those who share in the responsibility of distributing adulterated or misbranded drugs in interstate commerce are potentially criminally liable. United States v. Dotterweich, 320 U.S. 277, 281, 284, 64 S.Ct. 134, 88 L.Ed. 48 (1943); United States v. Park, 499 F.2d 839 (4 Cir. 1974). “Responsibility” in turn depends upon knowledge, and if knowledge is established it depends further on the action or nonaction of the officer or employee after he has obtained knowledge. Thus, we think that an inquiry to Mr. O’Donnell of whether he had knowledge from various sources of the charge that Abbott solutions caused deaths, as a prelude to the ultimate inquiry of what action he took with respect thereto, was relevant to the proceedings.

The district court found that the primary purpose of references to deaths before the grant jury was to influence the jurors and arouse their prejudice against defendants. We think this finding clearly erroneous. The record is devoid of direct evidence to support it. At best it is only an inference drawn by the district court from the premise that the references were irrelevant. But, as to the latter, we have concluded otherwise and hence the basis from which inference was drawn ceases to exist.

Reversed.


author: CUMMINGS, Circuit Judge.

text:
    BAKER CANNING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 73-2010.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 30, 1974.
    Decided Nov. 8, 1974.

      Leonard Singer, Kansas City, Mo., for petitioner.
    Elliott Moore, Deputy Associate Gen. Counsel, Bert Bisgyer, Atty., N. L. R. B., Washington, D. C., for respondent.
    Before HASTINGS, Senior Circuit Judge, and LAY and CUMMINGS, Circuit Judges.

       Circuit Judge Donald P. Lay of the Eighth Circuit is sitting by designation.

   CUMMINGS, Circuit Judge.

Petitioner Baker Canning Company grows, processes and packages vegetables in Theresa, Wisconsin. Baker has asked us to set aside an order of the National Labor Relations Board requiring it to bargain collectively with the Union (206 NLRB No. 97). The Board has filed a cross-application for enforcement.

On September 15, 1972, the Board conducted a secret ballot election to decide whether the employees at Baker’s plant wished to be represented by the Union. The Union won the election. Four days thereafter, Baker filed an objection alleging that between 7:00 a. m. and 8:30 a. m. on the election day the Union distributed a handbill to Baker employees containing “false and misleading statements concerning contracts which Petitioner [the Union] has obtained with one of the Employer’s competitors.” The handbill is reproduced as the Appendix to this opinion. Baker alleged that due to the timing of the distribution of the handbill it was unable to refute the statements contained therein and that, therefore, the handbill tainted the election.

After investigating the issues raised by Baker’s objection, the Regional Director filed a report recommending that the Board certify the Union as the exclusive representative of Baker’s employees in the unit involved. He concluded that the information on the handbill was correct in that it set forth “the existing wage rates of the employees of California Canners and Growers, and the reference to the general or starting wage rates for both California Canners and Growers and the Employer [Baker] are accurate.” He also found that the Union’s handbill did not contain “a misrepresentation sufficient to warrant setting aside the election” and that “the contents of the handbill did not contain departures from the truth.” Subsequently, the Board adopted the Regional Director’s findings and added that the handbill “does not contain any statements which the employees were unable to evaluate.”

Thereafter, Baker refused to bargain with the Union, resulting in an unfair labor practice charge being placed against Baker. Next, the Regional Director issued a complaint, and subsequently the Board’s General Counsel filed a motion for summary judgment with the Board. Summary judgment was granted because the Board concluded that all issues raised by Baker in the unfair labor practice proceeding were or could have been litigated in the prior representation proceeding and because Baker did not offer any newly discovered evidence or allege any special circumstances requiring the Board to reexamine the representation decision. Consequently, the Board found that Baker violated Section 8(a)(5) and (1) of the National Labor Relations Act (29 U.S.C. § 158(a)(5) and (1) ) and ordered the Company to bargain with the Union upon request and to post appropriate notices.

In a case like this, the guiding principle is not to police or censor propaganda used by the parties at Board elections, but to leave “to the good sense of the voters the appraisal of such matters * * *.” Linn v. Plant Guard Workers, 383 U.S. 53, 60, 86 S.Ct. 657, 662, 15 L.Ed.2d 582, quoting with approval from Stewart-Warner Corp., 102 NLRB 1153, 1158 (1953). Intemperate, abusive and inaccurate statements made by a union during an attempt to organize employees are to be tolerated under the Act, although neither party is permitted to injure the other “by circulating defamatory or insulting material known to be false.” 383 U.S. at 61, 86 S.Ct. at 662. We applied these considerations in Follett Corp. v. National Labor Relations Board, 397 F.2d 91, 95 (7th Cir. 1968), noting that the Board should not overlook glaring untruths in campaign material, but at the same time stating that not every inaccuracy in campaign propaganda requires an election to be set aside.

In its objection to the election, Baker complained that the handbill contained “false and misleading statements,” but no particulars were given to support this sweeping allegation. The gravamen of Baker’s attack on the handbill before the Regional Director was that the handbill was falsely misleading because of its omissions. Thus Baker attacked the failure of the handbill to mention that its nearby competitor, California Canners and Growers, does not hire migrant seasonal employees and therefore does not provide the housing and furnishings that Baker provides for such employees. The inclusion of California Canners’ top three wage rates in the handbill was attacked as misleading because Baker has no employees in those three wage categories. As noted, the Regional Director and ultimately the Board rejected these criticisms of the handbill on the grounds that it truly set forth the existing wage rates of the employees of California Canners and Growers and accurately referred to the general or starting wage rates for both employers. Although it was recognized that the Union did not reveal all of the factors surrounding its campaign propaganda, the election was approved because the Union had not falsified the data it presented in that “the contents of the handbill did not contain departures from the truth.”

We agree with the Board that the handbill was not sufficiently misleading to require invalidating the election. Baker first argues that the handbill misled the voters because it represented the California Canners’ contract as “typical” of other agreements won by the Union in the area near Baker’s plant, when that contract was actually atypically advantageous to the Union. We, however, find nothing in the handbill even implying that the California Canners’ contract was representative of the Union’s other agreements.

Baker next complains that the handbill was misleading because it led the voters to believe that the Union had secured the general labor wage rate of $2.-27 per hour for migrant seasonal workers at California Canners. Such workers constituted 77% of the voters at petitioner’s plant, while California Can-ners employed only local seasonal workers. However, the handbill represented accurately that the California Canners’ contract contained only one general labor rate, which was applicable to both regular and seasonal employees. Again we find nothing in the handbill implying that there were migrant seasonals at California Canners who received $2.27 per hour.

Even if we assume that the handbill did so imply, the misrepresentation has not been shown to be material, as we shall see. Baker argues that it supplies free housing and utilities to migrant seasonals and asserts the cost of such benefits to be 50^ per hour. California Canners, on the other hand, need not supply such benefits because it does not hire migrant seasonals. Baker apparently contends that the housing expense is much of the reason for the difference in wages at the two plants. Baker points out that those union contracts in the area, which it alleges are truly typical, provide for free housing to migrants and have a wage rate for seasonal labor close to Baker’s, though somewhat higher. But the Union was not obliged to advise the voters that at some local plants it had not been as successful as at California Canners. National Labor Relations Board v. Tran-coa Chemical Corp., 303 F.2d 456, 459 (1st Cir. 1962). Baker, moreover, offered no evidence that migrants are customarily paid less than local seasonals, nor did it show that the duties or skills of local seasonals differ in any way from those of migrants. Furthermore, two of the contracts which Baker asserts as typical of Union-bargained agreements in the area have the same wage rates for both local and migrant season-als, even though the employers provide free housing and utilities to only the seasonals from out of state. If, therefore, the handbill represented that migrant seasonals at California Canners received the same wages as local season-als and regular employees there, despite the fact that California Canners employs no migrant seasonals, this is not materially misleading because Baker has shown no reason why one should expect California Canners or any employer to pay migrant seasonals less than local sea-sonals.

Baker points out that 77% of the voters were Spanish-speaking migrants, while noting before the Board that the most intelligible item on the handbill was the 47^j per hour differential between the starting wage rate at California Canners and Baker. Since this comparison was truthful, it could not have misled the voters. Furthermore, if they did not understand the handbill without a translation, the handbill could have had no impact on them.

Another Baker criticism of the handbill is that it lists nine job categories at California Canners, although Baker employs no workers in the three highest categories shown on the handbill. On the other hand, most of Baker’s employees were in the general labor category and the emphasis in the handbill was on the general labor rates paid at the two plants. Therefore, this feature was also not so misleading as to require that the election be set aside. National Labor Relations Board v. Red Bird Foods, Inc., 399 F.2d 600, 602 (7th Cir. 1968); National Labor Relations Board v. Georgia-Pacific Corp., 473 F.2d 206, 208 (8th Cir. 1973).

In this Court, Baker contends for the first time that the handbill was inaccurate because it supposedly claims that seasonal employees at California Canners received the same fringe benefits as regular employees there. Under Section 10(e) of the Act (29 U.S.C. § 160(e)), this contention comes too late. Red Cross Drug Co. v. National Labor Relations Board, 419 F.2d 1245, 1248-1249 (7th Cir. 1969).

We agree with the Board that the ca 'es relied upon by Baker to support its claim that it had a right to a hearing are clearly distinguishable. Since Baker did not request a hearing and failed to submit additional evidence in the representation proceeding, the Board was not required to honor its request for a hearing in the unfair labor practice case. National Labor Relations Board v. O.K. Van Storage, Inc., 297 F.2d 74, 76 (5th Cir. 1961). Baker was seeking to relitigate in the later case matters that were or could have been adjudicated in the representation proceeding. Therefore, the Board was entitled to dispose of the unfair labor practice charge by summary judgment. Follett Corp. v. National Labor Relations Board, 397 F.2d 91, 95 (7th Cir. 1968).

Judgment will be entered enforcing the Board’s bargaining order in full.

No. 73-2010

APPENDIX

TO THE EMPLOYEES OF BAKER CANNING COMPANY:

The company in the last ditch effort to avoid organizing, issued a 9 point letter.

In answer we ask you only to compare the benefits you receive at Baker Canning Company to the benefits received by the employees of California Canners and Growers.

BRACKET RATE

I $4.34

II $4.07

III $3.91

IV $3.70

V $3.45

VI $3.13

VII $2.57

VIII $2.42

IX (General Labor) $2.27

PLUS ...

MEDICAL, DENTAL, SICK LEAVE & PENSION BENEFITS

GUARANTEED JOB SECURITY

VACATIONS & HOLIDAYS

SENIORITY RIGHTS, ON JOB BIDDING, LAY-OFFS, RECALL, OVERTIME, ETC., AND

MANY OTHER CONTRACTUAL BENEFITS

The Union dues for regular employees are $8.00 & seasonal employees are $7.00. The Union dues are tax deductible.

The following example is based on a normal work month of 173 hours (40 hour week) ..........

The average general labor bracket at California Can-ners & Growers . . $2.27 per hr.

General labor at Baker Canning Co.....$1,80 per hr.

DIFFERENCE . . $ .47 per hr.

(Time 173 hours = $81.31 per month. This is your cost monthly for not belonging to the Union)

WHY HAVE SO MANY EMPLOYEES LEFT BAKER CANNING COMPANY TO GO TO WORK AT CALIFORNIA CANNERS & GROWERS ????????

VOTE TEAMSTERS!

USCA 4142 — Midwest Law Printing- Co., Inc., Chicago 11-8-74 — 250

      . Drivers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees and Helpers Union Local 695, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.

      . Baker lias not even shown that its local seasonals are paid at a higher hourly rate than its migrant seasonals.


author: HASTINGS, Senior Circuit Judge.

text:
    CHICAGO AND WESTERN INDIANA RAILROAD COMPANY, a corporation, et al., Plaintiffs-Appellees, v. MOTORSHIP BUKO MARU, her engines, tackle, apparel and furniture, and the Sanko Steamship Co., Ltd., a Japanese corporation, Defendants-Appellants, and TUG JOSEPH H. CALLAN, TUG ARIZONA and the Great Lakes Towing Company, Defendants-Appellees.
    No. 73-2123.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 18, 1974.
    Decided Nov. 4, 1974.
    Rehearing Denied Dec. 13, 1974.

      Robert D. Barnes and Jonathan Dean, Chicago, 111., for defendants-appellants.
    C. Roy Peterson, John W. McMurray, Chicago, 111., for plaintiffs-appellees.
    Before HASTINGS, Senior Circuit Judge, and CUMMINGS and PELL, Circuit Judges.
   HASTINGS, Senior Circuit Judge.

These actions arose out of a collision on July 13, 1970, between the Japanese Motorship Buko Maru (Ship), owned by Sanko Steamship Co., Ltd. (Sanko), a Japanese corporation, and a single leaf Strauss Bascule Drawbridge owned and operated by the Chicago and Western Indiana Railroad Company (Western Indiana) while the Ship was being assisted up the Calumet River from Lake Michigan to Lake Calumet by two tugs of the Great Lakes Towing Company (Towing Company). Western Indiana was in turn owned by five other railroads each of which owned 20 per cent of the stock of Western Indiana. The railroads brought a civil action within the admiralty and maritime jurisdiction of the district court against the Ship, Sanko, each of the tugs and the Towing Company for damages consisting of the cost of temporary and permanent repairs to the bridge, of constructing a connecting track to other railroad facilities, and of routing rail traffic over the connecting lines. Motions to intervene by three other railroads having rights as tenants to use the bridge under agreements with Western Indiana were continued pending trial of the liability issues.

The Towing Company brought an action under the maritime and admiralty jurisdiction seeking exoneration from liability or, in the alternative, for limitation of liability pursuant to various statutes. The district court ordered the actions of the railroads and the Towing Company consolidated for trial of the liability issues arising out of the collision.

The liability issues were tried to the court, Honorable Thomas R. McMillen, Judge, presiding, between January 3 and 23, 1972, and on March 2, 1972, the court issued a decision exonerating the Towing Company and finding the Ship at fault and responsible in damages to the plaintiff railroads. In re Great Lakes Towing Co., 348 F.Supp. 549 (N.D.Ill.1972).

On June 25, 1973, the petitions to intervene of the tenant railroads were granted and the district court issued a judgment order adopting the March 2, 1972, decision as the court’s findings of fact and conclusions of law. It held the Ship and Sanko liable to Western Indiana and the proprietor and tenant railroads for damages in the aggregate amount of $873,826.98, exclusive of interest and costs. The Ship and Sanko appeal from that judgment. We affirm.

Appellants raise the following issues: (1) whether the court’s findings with respect to the navigation and seaworthiness of the Ship were clearly erroneous; (2) whether the district court erred in exonerating the tugs and Towing Company from liability; (3) whether the district court’s finding of a 75 degree angle of opening of the bridge at the time of the collision was clearly erroneous; and (4) whether the district court erred in failing to apply the Pennsylvania rule to find that Western Indiana was a cause of the collision.

I.

A heading in appellants’ brief claims that the findings and conclusions of the district court concerning the seaworthiness and navigation of the Buko Maru were clearly erroneous, yet the text of the brief makes no supporting argument or reference to the record. Rule 28(a)(4) of the Federal Rules of Appellate Procedure, 28 U.S.C., requires that appellant’s brief include an argument which “shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on.” Where an appellant fails to comply with this rule, we are not required to search the record for error. Holt v. Sarver, 8 Cir., 442 F.2d 304, 307 (1971). Nevertheless, we find that these findings and conclusions of the district court were amply supported by the evidence.

The district court concluded that the Buko Maru, although suitable for the open sea and wide harbors, “was not well constructed for traversing a twisting and comparatively narrow waterway,” and that the navigation of the ship was faulty. In re Great Lakes Towing Co., supra, 348 F.Supp. at 552.

The district court reached its conclusion regarding seaworthiness after reviewing the construction and operating mechanisms of the Ship. She was approximately 549 feet long and 74 feet wide and weighed about 17,500 tons as she was loaded at the time of the collision, with a cargo of steel products. The trial court found that “[s]he was a clumsy ship with a rudder too small to do the job without help from the propellor, and she consequently lost steerage under 3 m. p. h. Although the engine therefore was needed for steerage, it could not run slower than 5-7 m. p. h., too fast for the Calumet River.” In re Great Lakes Towing Co., supra, 348 F.Supp. at 552.

The findings were well supported by the deposition of Great Lakes Captain Melvin Leslie Nobes who had piloted the vessel through the Welland Canal. Captain Nobes detailed the mechanical problems of the Ship and told how, just a week prior to the collision in this case, he had run the vessel aground when he was unable to get a response from the rudder. Glenn V. Dawson, captain of the tug Arizona, testified that he had had difficulty in handling the Buko Maru throughout the trip on the Calumet River prior to the collision because of the performance of the Ship’s rudder and engine. The trial court’s findings and conclusions concerning the seaworthiness of the Buko Maru were supported by substantial evidence and were not clearly erroneous.

A simple recitation of the uncontested facts about the conduct of the crew of the Ship in its approach to the bridge demonstrates the validity of the trial court’s conclusion of the Ship’s faulty navigation.

The captain and crew of the Ship were all Japanese. At Port Huron, Michigan, the Ship took on a Canadian Great Lakes pilot, Harry S. Randall, who was responsible for giving engine and rudder orders to the crew of the Ship. Randall spoke no Japanese, so all commands were made in English. The seaman at the helm, Shimada, was 22 years old, was making his first trip to the Great Lakes, had only sailed as quartermaster for a period of three months, and spoke no English. Third Officer Sakou, who was stationed at the engine telegraph controls and who was responsible for receiving and carrying out all engine orders, was 25 years old, was making his first trip to the Great Lakes, and said, through a Japanese interpreter, that his ability to understand English was “so and so.”

At the mouth of the Calumet River the Buko Maru was met by the tugs of the Towing Company. The tug Joseph H. Callan was attached by tow line to the bow of the Ship and the tug Arizona to the stern. As the vessels approached the bridge at about midnight the bow tug sounded the required signal for opening the bridge and the bridgetender responded by opening it. Although dark, visibility at the time was clear and there was no noticeable wind or current affecting navigation. At no time prior to the collision was there any attempt by Randall to communicate with the bow tug about the procedure to be followed in going through the bridge draw.

After the Ship was about one-third through the bridge draw Randall ordered the rudder to be put hard to starboard. The right rudder caused the stern of the Ship to move to port, toward the bridge leaf to the left of the Ship. Captain Dawson on the stern tug made three calls to the Ship requesting that the Ship go ahead on a port rudder in order to counteract the swing to port. The Ship did not respond until the third request, but the attempt to correct the swing failed because the propeller was started up before the rudder had been changed from the hard starboard position and the effect was only to accelerate the swing to port. At 12:20 a. m. the port wing of the navigation bridge deck of the ship collided with the bottom chord of the westerly truss of the railroad bridge. The stern port lookout was in the washroom.

These facts make it evident that the district court was not clearly erroneous in finding and concluding that the Ship was guilty of faulty navigation.

II.

Appellants also claim that the trial court erred in exonerating the Towing Company from liability. Appellants contend that if the Ship and Sanko are found liable, then the Joseph H. Callan, the Arizona, and the Towing Company should be required to pay their proportional share of the damages because they were contributing causes to the collision.

Appellants argue that the Towing Company and the tug Arizona are liable for damages under the rule of The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1874), for violation of 46 U.S.C. § 673. The Pennsylvania rule imposes upon a vessel, which at the time of a collision, is in violation of a statutory rule intended to prevent collisions, the burden of proving that the violation could not have been a cause of the collision. Title 46, U.S.C. § 673, limiting the hours of work of officers and seamen, is applicable only to “merchant vessels of the United States of more than one hundred tons gross.” The only member of the crew of either tug who had been at work for more than eight hours at the time of the collision was Glenn V. Dawson, Captain of the stern tug, Arizona. The record in this case includes the sworn affidavits of two marine surveyors that the Arizona at the time of the collision had a gross tonnage of 98 tons. The affidavits were not contested. Therefore, 46 U.S.C. § 673 was not applicable to the officers and crew of the Arizona and thus there was no statutory fault on the part of the Arizona to trigger application of the Pennsylvania rule.

Appellants also contend that the bow tug Joseph H. Callan and the Towing Company should share in the liability for damages because the bow tug’s radio was inoperative to the extent that it made it impossible for that tug to communicate directly with the Ship. The facts, however, demonstrate that the defective radio could not have been a cause of the collision. The bow tug’s radio did permit it to communicate to the stern tug which could, in turn, talk to the Ship. The Ship’s pilot and Ship’s captain both thought that they could talk to the bow tug on the radio. There was, however, as the court found, no need to communicate with the bow tug. The navigational concerns only arose after the bow tug and the bow of the Ship had passed through the bridge draw. The bow tug could not have seen the problems at the stern and could not have done anything to remedy them. Since the defective radio of the tug Joseph H. Callan could not have been a cause of the collision, the district court properly exonerated it from liability.

III.

Appellants claim that the trial court’s finding of a 75 degree angle of opening of the bridge at the time of the collision was clearly erroneous. The angle of opening is important to appellants’ contention that the bridge’s failure to open to 82 degrees, as required by its War Department permit, was a statutory violation which required application of the Pennsylvania rule and the imposition of a burden of proof which, it argues, Western Indiana did not satisfy. That contention is discussed in Part IV, infra. We deal here only with the finding of fact.

In order to determine whether the finding of a 75 degree angle was clearly erroneous it is necessary to review the evidence presented at trial on the question of the angle of opening of the drawbridge at the time of the collision. George E. Leithner, a marine surveyor with 24 years experience, testified on behalf of the railroads. He determined the angle of opening at the time of the collision to be 75 degrees by use of a triangulation method which involved plotting on scale drawings the point of impact on the Ship above the water and the point of impact on the bridge. Leithner also was present at a later time when the opening was measured with an inclinometer and found to be 77 degrees. Sanko Exhibit 43-1, a drawing of the bridge by an engineering firm based on a survey following the accident, shows the angle of opening as 75 degrees. James E. Peterson, Chief Engineer of Western Indiana, testified that in normal operation the bridge had an angle of opening between 76 and 79 degrees.

The only evidence indicating an angle of opening of less than 75 degrees was the testimony of marine surveyor Harlow Meno, who had been an independent surveyor for 24 years, and was called as an expert witness by the Towing Company. Meno measured the bridge opening more than a week after the collision and determined that the angle of opening ranged from 71.5 degrees on the east side of the bridge to 73.5 degrees on the west. Meno again measured the bridge in August, after repairs on the bridge had begun, and found the angle of opening to be “a hair under 77 degrees.” Meno’s method of measurement on both occasions was to place a pair of hinged sticks, one on a horizontal rail and one against the rail as the bridge was up, and then move the hinged sticks, lay them down and measure the opening with a bevel square.

Ray Oswalt, a civil engineer employed for 15 years with the American Bridge Division of United States Steel, which did the repair work on the bridge, testified concerning the comparative accuracy of the methods of measurement used by Leithner and Meno. Oswalt testified that Meno’s method was not a good one to determine the angle at the time of the collision because it required measurements of the bottom floor system of the bridge which had been severely distorted by the accident. The cross-examination of Meno also suggests that his method may have produced an inaccurate result if the hinged sticks failed to remain in place as they were transported from the bridge to the bevel square on the ground. Oswalt testified that the proper means of measuring the angle was triangulation, the method used by Leithner, in arriving at the 75 degree figure.

The calculations of Leithner appear to be the most accurate means of determining the angle of opening at the time of the collision because they were based on a determination of the location of the damage to the Ship and bridge and not on simple measurements of the damaged bridge or the bridge after repair. With the exception of Meno’s measurements made by a method of questionable accuracy, all other evidence demonstrated an opening of at least 75 degrees. The trial court’s 75 degree finding seems well justified and certainly not clearly erroneous.

IV.

Appellants claim that the district court erred in failing to apply the Pennsylvania rule to find Western Indiana a cause of the collision and proportionally liable for damages. The rule was established by the Supreme Court in The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1874), and provides that when

a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been. 86 U.S. (19 Wall.) at 136.

The Court there also said: “It must be conceded that if it clearly appears the fault could have had nothing to do with the disaster, it may be dismissed from consideration.” Id.

Appellants here claim that the statutory fault of Western Indiana was the failure of the bridge to open to 82 degrees, the angle of opening specified in its War Department permit. On September 14, 1909, the Acting Secretary of War issued an Approval Permit authorizing Western Indiana to construct the railroad bridge over the Calumet River. The permit stated that the bridge had been authorized by an Act of Congress (Act of Aug. 5, 1909, ch. 9, 36 Stat. 178) which required that the bridge be built in accordance with the Act of March 23, 1906, ch. 1130, 34 Stat. 84, now 33 U.S.C. § 491 et seq., which required that construction plans for bridges over navigable waters be approved by the Secretary of War and Chief of Engineers. The permit approved the construction on the condition that the bridge plans be complied with and that the bridge allow a full channel width of 120 feet. A legend on the plans attached to the permit reads: “Note: Fine dot lines indicate bridge in fully open position. Angle of opening: 82°-0/.”

Since, as discussed in Part III, supra, the trial court’s finding that a bridge angle of opening of 75 degrees was not clearly erroneous, it must be accepted by this court as correct. With a 75 degree angle of opening the Western Indiana bridge was in violation of its War Department permit.

Despite this violation, the trial court nevertheless declined to apply the Pennsylvania rule to the bridge on the ground that the rule should be limited to moving ships which were actively or primarily negligent. In re Great Lakes Towing Co., supra, 348 F.Supp. at 554. Subsequent to the district court decision in this case, however, we explicitly held that the Pennsylvania rule was to be applied to bridges, Complaint of Wasson, 7 Cir., 495 F.2d 571, cert. denied, - U.S. -, 95 S.Ct. 78, 42 L.Ed.2d 73 (1974), and said: “We follow the line of cases which hold that a violation of the provisions of a War Department permit imposes on the bridge owner the burden of showing that the violation could not have contributed to the casualty.” Id. at 580.

The failure of the bridge to comply with the requirement of an 82 degree angle of opening is a statutory fault sufficient to trigger the application of the Pennsylvania rule. Under the rule we must determine whether Western Indiana has sustained its burden of proof.

It should be noted that the district court, although holding the Pennsylvania rule inapplicable, nevertheless stated that if it were required to apply the rule it would hold that under the circumstances of this case Western Indiana had not and could not sustain its burden. In re Great Lakes Towing Co., supra, 348 F.Supp. at 554. After a careful consideration of the record, we disagree.

The burden of proof imposed by the Pennsylvania rule, although difficult to sustain, is not impossible. Indeed, in the case upon which our court in Complaint of Wasson, supra, relied in holding that a failure to comply with a War Department permit invokes the Pennsylvania rule, The Fort Fetterman v. South Carolina State Highway Dept., 4 Cir., 261 F.2d 563 (1958), aff’d in relevant part on rehearing, 268 F.2d 27 (1959), the ultimate result of the litigation was that the court of appeals affirmed the finding of the district court, on remand, that the failure of the bridge to open to the angle required by its War Department permit could not have been a cause of the collision. The Fort Fetterman v. South Carolina State Highway Dept., 4 Cir., 278 F.2d 921 (1960).

We are satisfied here that the railroad sustained its burden of proof by showing that its failure to open the bridge to 82 degrees could not have been a cause of the collision. We reach this conclusion for the following reasons.

The purpose of the 82 degree angle requirement was to assure that the entire navigational channel of 120 feet in width was clear up to a height of 120 feet above the water. The bridge open to 82 degrees would only begin to extend over the channel at a height of 120 feet. The permit was not designed to prevent a collision outside the channel. Alfred J. Bañas,- a 22 year veteran of interpreting permits for the Army Corps of Engineers, testified that the area beyond the 120 foot channel is not protected by the permit.

The physical circumstances of the collision compel us to conclude that at the time the Ship struck the bridge, it had gone outside the protected channel. We have held that the trial court’s finding of a 75 degree angle of opening is not clearly erroneous. The district court found that at the time of impact the angle of the Ship to the bridge was 30 degrees. The testimony of three expert witnesses at trial, including Sanko’s own expert, support this finding and appellants do not challenge it on appeal. San-ko Exhibit 94 demonstrates that if the bridge was open to 75 degrees and the Ship’s angle of approach to the bridge was 30 degrees and the Ship was at the extreme south edge of the 120 foot channel, the Ship would have cleared the bridge by 5.81 to 6.87 feet. Appellants and their expert witness, Horn, accept this premise. For the Ship to have hit the bridge upraised to 75 degrees at a 30 degree angle, as it did, the Ship must have gone outside the 120 foot protected channel. This reasoning is bolstered by the fact that when the bridge is open to 75 degrees it first extends over the 120 foot channel at a height above the water of about 85 feet. The place of impact on the Ship was only about 57 feet off the water. The bridge was not encroaching into the channel at any height where it could have been struck by this Ship if the Ship was within the channel. Thus, any failure of Western Indiana to keep any part of the channel clear could not have been a cause of an accident occurring outside the channel. Western Indiana has borne its burden of proof under the Pennsylvania rule.

In light of the foregoing, the judgment appealed from is affirmed.

Affirmed.

      . The trial court seems to have based its conclusion that the Pennsylvania rule’s burden of proof had not been sustained on its belief that “it would be speculative to 1 old that the ship would have cleared the span if raised another 7° (5 or C feet) further inland.” In re Great Lakes Towing Co., supra, 348 F.Supp. at 554. The basis for the court’s belief seems to be revealed in a colloquy between the judge and the attorney for the railroad concerning the implication of Newton’s Law on the Ship’s slide to port and whether the Ship might have stopped before hitting a bridge at 82 degrees, five or six feet further away than this bridge was:
      The Court: . . . Obviously it stopped swinging someplace along in there. But we don’t know whether the bridge stopped it from swinging or whether its natural momentum stopped it from swinging.
      Mr. McMurray: Well, your Honor, the only tiling — tiie natural forces involved would stop the vessel when it impacted and came up against a resistance, w..ich was the bridge.
      The Court: Not necessarily.
      The district court’s finding that the burden had not been sustained, thus, might well have resulted from a misapplication of the laws of physios.

      . The district court’s decision does not clearly state whether the Ship was within the channel at the time of the collision. The court says only that “[t]he stern of the Buko Maru slid across the channel to its extreme south edge . . . . ” Insofar as this finding might suggest that the Ship was wholly within the channel, it is clearly erroneous.


author: MANSFIELD, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Robert S. SCIOLINO, Appellant.
    No. 175, Docket 74-1826.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 30, 1974.
    Decided Oct. 25, 1974.

      Peter L. Parrino, Buffalo, N. Y. (Par-rino & Cooper, Buffalo, N. Y., of counsel), for appellant.
    Peter B. Krauser, Atty., Dept, of Justice, Washington, D. C. (John T. Elfvin, U. S. Atty., W. D. N. Y., Shirley Bac-cus-Lobel, Atty., Dept, of Justice, Washington, D. C., of counsel), for appellee.
    Before HAYS, ANDERSON and MANSFIELD, Circuit Judges.
   MANSFIELD, Circuit Judge:

After a jury trial in the Western District of New York before Lloyd F. MacMahon, Judge, appellant was acquitted of one count charging him with forcibly impeding and interfering with an Internal Revenue Service agent in the performance of his official duties, in violation of Title 18 U.S.C. § 111. However he was convicted on a second count which charged him with endeavoring by threats of force to intimidate and impede the IRS agent in the performance of his duties, in violation of Title 26 U.S.C. § 7212, and sentenced to serve three months imprisonment followed by nine months probation and to pay a fine of $3,000. The principal issue raised upon this appeal is whether there was sufficient evidence of an implied threat of force to sustain the conviction. We hold that there was and affirm.

Viewed in the light most favorable to the government, United States v. McCarthy, 473 F.2d 300, 302 (2d Cir. 1972); United States v. Castellana, 349 F.2d 264, 267 (2d Cir. 1965), cert. denied, Pagano v. United States, 383 U.S. 928, 86 S.Ct. 934, 15 L.Ed.2d 847, rehearing denied, 384 U.S. 923, 86 S.Ct. 1368, 16 L.Ed.2d 444 (1966), the evidence reveals that on August 7, 1972, Internal Revenue Agent Thomas S. Shea, while examining records in the course of a tax audit of Main Chrysler-Plymouth Corporation at its offices in Buffalo was startled by a flash of light when appellant, president of the company, took a close-up flash photograph of Shea. Asked by Shea why he had taken the picture, appellant replied “That’s for posterity, so I can show it around and say this is the guy.” Shea protested, pointing out that he had not consented to being photographed. At first appellant asserted his right to do so regardless of Shea’s consent but later in the day apologized, attributing his conduct to medication taken for a stomach disorder.

The unusual August 7th episode was followed by an equally bizarre occurrence on the following day, when Shea asked appellant for certain documents required for the audit. Appellant thereupon asked Shea to step into appellant’s office and sit down at his desk, which Shea did. After appearing to search for the requested records appellant removed from his desk a gun-cartridge box bearing the label “Smith & Wesson, .38 Chief Special,” which he placed on the desk so that the label was facing and visible to Shea, seated opposite appellant. Then appellant, according to Shea, glanced at the gun box and

“. . . went into a discourse on the development of the human mind, and he continued that man was basically an uncivilized being, that they [sic] delighted in sports, violence and killing, and that man was basically unpredictable and one never knew what a man might do in a given set of circumstances. He also stated that there is no telling what he might not do if backed into a corner and there was no yvay out.”

Agent Shea further testified that he felt that this was another attempt on appellant’s part to intimidate him in the performance of his duties, which he reported to his supervisor.

The incident occurred at a time when appellant possessed a pistol permit and was refusing to accede to Shea’s request for production of a key agreement that had been entered into in 1969 between Main Chrysler-Plymouth Corp. and Chrysler Corporation, which set forth basic terms with respect to ownership of Main Chrysler-Plymouth and was directly relevant to the audit. On August 23, 1972, appellant told Shea that appellant and his brother had been investigating Shea and wanted to know why one of the “top” men of the IRS office was conducting the audit. In September 1972 appellant finally turned over the agreement to Shea.

Discussion

Title 26 U.S.C. § 7212(a) provides in pertinent part that whoever by threats of force endeavors to intimidate or impede an employee of the United States acting in his official capacity is guilty of a crime. Appellant’s first contention is that appellant’s statements to Agent Shea were too “vague,” “ambiguous,” “non-specific,” “non-direct,” and “nebulous” to rise to the level of “threats of force” as defined in § 7212, i. e., “threats of bodily harm to the officer or employee of the United States or to a member of his family.” He argues that the only form of such intimidation proscribed by the statute is a directly expressed threat. We disagree.

As a means used to convey an intention to cause bodily harm a threat may be express or implied. A direct expression of that intention, being the most obvious form of threat, is, of course, the type most commonly appearing in cases dealing with prosecutions instituted under § 7212. See, e. g., United States v. Johnson, 462 F.2d 423 (3d Cir. 1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1396, 35 L.Ed.2d 602 (1973); United States v. Rybicki, 403 F.2d 599 (6th Cir. 1968); United States v. Varani, 435 F.2d 758 (6th Cir. 1970). Indeed, while one might wonder why the government would as a matter of prosecutorial discretion undertake prosecution upon lesser evidence, we must recognize that an intent to cause harm may be implied in veiled statements which, depending on the setting, may be even more effective in frightening a reasonable person than would be a brash display of braggadocio. Since the question of whether subtle conduct can amount to a threat of force depends greatly upon all of the surrounding circumstances, including not only the words used but the facial expressions and gestures of the accused, it is peculiarly one for resolution by the jury. Here the jury had before it the entire picture, including the two participants in the drama, both of whom testified. The jury was therefore in a superior position to determine whether appellant’s language and conduct constituted a threat of force, after appraising the physical appearance and demeanor of the parties and their conduct in the light of the setting and circumstances. The jury, having been properly instructed that the government had assumed the burden of proving beyond a reasonable doubt that appellant knowingly and intentionally endeavored to intimidate and impede Agent Shea by threats of force as defined in the statute, rendered a guilty verdict. On this record it is not within our province to disturb it.

The second point raised by appellant presents a more difficult question. After testifying to the picture-talcing and gun-box incidents Agent Shea was permitted, over appellant’s objection, to testify as follows:

“Q. Now, what did you understand him to mean by his statement that he didn’t know what he would do if he were cornered and had no escape?
* * * * * *
“A. I felt that this was perhaps another attempt to intimidate or to cause me from discharging my duties, and possibly even a threat, in view of the episode of the previous day.”

This testimony as to the victim’s reaction was admissible with respect to Count I, which charged appellant with forcibly assaulting, impeding, intimidating and interfering with Agent Shea in violation of Title 18 U.S.C. § 111. Proof that Shea was successfully impeded, intimidated or interfered with was essential to establish commission of the alleged crime and, in this regard, evidence of the effect of the threat upon the agent was relevant. See Gornick v. United States, 320 F.2d 325 (10th Cir. 1963). Under closely analogous circumstances we have held admissible evidence of the victim’s fear in extortion cases. See, e. g., United States v. Tropiano, 418 F.2d 1069, 1081 (2d Cir. 1969), cert. denied, Grasso v. United States, 397 U.S. 1021, 90 S.Ct. 1258, 25 L.Ed.2d 530 (1970). However, such evidence was not essential to proof of Count II, which was limited to the charge that appellant endeavored by threats of force to intimidate or impede Shea and did not require proof that he was successful in the effort. Although the defendant’s state of mind was relevant to Count II, that of his victim was not.

Thus the evidence of Shea’s reactions was admissible only in support of Count I, of which appellant was acquitted, and not with respect to Count II, upon which he was convicted. In order to avoid any prejudice to appellant from the jury’s possible consideration of this evidence in arriving at a verdict on Count II, the proper course would have been for the trial judge to give an instruction limiting the jury’s use of the evidence accordingly, since in a close case under § 7212 evidence of the impression made upon the agent by the defendant’s conduct might improperly influence the jury. However, we cannot label the court’s failure in the present case to give such an instruction sua sponte as plain error. Although appellant’s counsel excepted to the court’s charge, he did not assert this ground or request a limiting instruction. In the absence of such a request appellant cannot now be heard to complain. United States v. Indiviglio, 352 F.2d 276 (2d Cir. 1965) (en banc), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966).

      . Title 18 U.S.C. § 111 provides in pertinent part:
      “Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.”

      . Title 26 U.S.C. § 7212 provides in pertinent part:
      “Whoever corruptly or by force or threats of force (including any threatening letter or communication) endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity under this title, or in any other way corruptly or by force or threats of force (including any threatening letter or communication) obstructs or impedes, or endeavors to obstruct or impede, the due administration of this title, shall, upon conviction thereof, be fined not more than $5,000, or imprisoned not more than 3 years, or both, except that if the offense is committed only by threats of force, the person convicted thereof shall be fined not more than $3,000, or imprisoned not more than 1 year, or both. The term ‘threats of force’, as used in this subsection, means threats of bodily harm to the officer or employee of the United States or to a member of his family.”

      . Although proof of an implied threat may satisfy Title 26 U.S.C. § 7212 it will not necessarily fulfill the requirements of Title 18 U.S.C. § 111, which (unlike § 7212) prohibits the “forcible” assault upon, intimidation or impudence of an employee engaged in performance of his official duties. See United States v. Glover, 321 F.Supp. 591, 593 (E.D.Ark.1970).