author: BELL, Circuit Judge: THORNBERRY, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Oscar TREVINO, Defendant-Appellant.
    No. 73-2595.
    United States Court of Appeals, Fifth Circuit.
    March 14, 1974.
    See, also, D.C., 349 F.Supp. 132.
    Gerard P. Nugent, Austin, Tex., (court-appointed), for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Robert Darden, Mary L. Sinderson, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    Before BELL, THORNBERRY and DYER, Circuit Judges.
   BELL, Circuit Judge:

Appellant, a Postal Service employee, was convicted of violating Title 18, U.S. C.A. § 1709. This statute delineates two offenses. The question presented is whether appellant was charged with an offense under the statute. We reverse and remand, holding that the indictment failed to state an offense.

The indictment was challenged prior to trial as required by Rule 12(b)(2), F.R.Crim.P. Moreover, under the terms of the rule, an indictment may be challenged at any time if no offense is charged in the indictment. Walker v. United States, 5 Cir., 1965, 342 F.2d 22, 26; United States v. Beard, 3 Cir., 1969, 414 F.2d 1014, 1017.

The statute charges two crimes as follows:

Whoever, being a Postal Service officer or employee, embezzles any letter, postal card, package, bag, or mail, or any article or thing contained therein entrusted to him or which comes into his possession intended to be conveyed by mail, or carried or delivered by any carrier, messenger, agent, or other person employed in any department of the Postal Service, or forwarded through or delivered from any post office or station thereof established by authority of the Postmaster General or of the Postal Service; or steals, abstracts, or removes from any such letter, package, bag, or mail, any article or thing contained therein, shall be fined not more than $2,000 or imprisoned not more than five years, or both.

See Hall v. United States, 1898, 168 U.S. 632, 18 S.Ct. 237, 42 L.Ed. 607, for a statement of the two offenses. See United States v. Lucarz, 9 Cir., 1970, 430 F.2d 1051, 1053, Fn. 1., for the statutory history.

The indictment here charged:

“That on or about January 21, 1972, at Alice, Texas, in the Southern District of Texas, and within the jurisdiction of this Court, OSCAR TREVINO, being a Postal Service employee, did unlawfully steal, abstract and remove a first-class letter addressed to Miss Sandy Simms, c/o Americana Motel, Alice, Texas 78332, bearing the return address of 102 W. Rampart Street, Apt. Q-206, San Antonio, Texas 78216, postmarked San Antonio, Texas, A.M., January 11, 1972; which said letter had theretofore been intrusted to him and which had come into his possession intended to be conveyed by mail.”

It is to be noted that the first offense under the statute is that of embezzlement and includes (1) letters or (2) articles contained therein. The second offense is that of stealing articles removed from any such letter as distinguished from the letter itself. The indictment here charged the stealing of a letter and not of an article contained in the letter.

The only possible means of validating the indictment would be to equate stealing with embezzlement. This is not possible for the reason that we would thereby coalesce the two separate offenses into one. Congress, by the statutory language, has provided that a letter or its contents may be embezzled but has included only the contents of the letter under the stealing provision.

There is a difference between the crimes of embezzlement and stealing. The crimes are inconsistent. Embezzlement presupposes lawful possession and theft does not. Bernhardt v. United States, 6 Cir., 1948, 169 F.2d 983, 985. See II Wharton’s Criminal Law and Procedure (Anderson Ed.), § 523, p. 205. We cannot write off the portion of the statute having to do with stealing nor can we expand it to include letters.

As the government points out, it is true that in a prior decision we permitted the importation of the entrustment element into the part of the statute having tc do with stealing. United States v. Coleman, 5 Cir., 1971, 449 F.2d 772. The offense charged was stealing, abstracting, and removing one watch from-a parcel post package entrusted to the defendant.' While we concluded that the indictment was valid, we were not asked to decide, and did not decide, the effect of importing the unnecessary entrustment element. In any case, it is plain that the charge in that case was in the terms of the second offense under the statute, and that the indictment tracked the statute except for including, and thereby placing on the government the additional burden of proving the entrustment element.

Here the problem is not the entrustment element. Appellant was charged with stealing a letter and the statute does not embrace such a charge. The proof was clear that appellant removed a letter from the mail. There were eyewitnesses to his act and he was apprehended in possession of the letter. The district court charged the jury in terms of the indictment and his conviction followed. However, the indictment failed to state an offense and must be dismissed.

In the interest of judicial economy, we have considered the assignments of error (1) that prejudicial testimony was admitted against appellant during the trial and (2) that he was denied a speedy trial. There is no merit whatever in these assignments of error.

Reversed and remanded with direction that the indictment be dismissed.

THORNBERRY, Circuit Judge

(concurring in part and dissenting in part):

I concur fully in the opinion of the Court except insofar as it concludes that there is no merit to appellant’s contention that testimony, inadmissible for any purpose, was admitted against him to his clear detriment.

Before the trial, appellant’s trial counsel filed a motion in limine with the court requesting that the government not be permitted to introduce evidence or testimony indicating that mail had been reported missing from the post office on occasions prior to those charged in the indictment. The motion suggested that postal inspectors involved in this case had testified before a civil service board hearing to the effect that mail had been reported missing from the post office for more than a year. In response to the motion, the government stated that it had no objection to the request.

Nevertheless at the trial the government introduced precisely that evidence which the motion in limine sought to suppress. Appellant’s trial counsel properly objected, but the objection was overruled. Appellant’s counsel on appeal contended, as trial counsel did below, that this testimony indicated that Trevino might be guilty of similar offenses unrelated to the offense charged and thus that this testimony was both irrelevant and highly prejudicial. The government’s response is that the testimony was not prejudicial and that it was relevant to “explain the reason for the investigation and the method used by the postal inspectors . . .,” citing United States v. Rosse, 2nd Cir. 1969, 418 F.2d 38, 41, cert. denied, 1970, 397 U.S. 998, 90 S.Ct. 1143, 25 L.Ed.2d 408.

In my opinion, the government is reading Rosse through a mirror. For in my opinion, Rosse states that evidence relevant only to explain the reason for the investigation and the method used by the postal inspectors is precisely the kind of evidence which has no place before the jury. Rosse, a postman, was found guilty by a jury of stealing $8" from the mails in violation of 18 U.S.C. § 1709. During the trial, postal inspectors testified that nineteen previous thefts had occurred at Rosse’s post office and that these thefts prompted the investigation which led to Rosse’s arrest and prosecution. To Rosse’s contention that the admission of this testimony constituted reversible error, the court responded:

. We find this argument to have considerable merit, for it is difficult to imagine any theory of evidence under which this testimony would be admissible. The prior investigations and attendant thefts may have a place at a probable cause hearing, not at a trial for a completely distinct substantive offense. Evidence of such prior crimes is highly prejudicial as it created a suspicion about the defendant although there were many other employees in the . . . post office who may have been responsible for the prior thefts. In short such evidence is not sufficiently connected with the defendant to justify its admission on the question of guilt, although it is relevant to explain the reason for the investigation and the method used by the postal inspectors to find who was guilty.

418 F.2d at 41.

Thus Rosse stands for the proposition that while such testimony may be relevant at a preliminary or probable cause hearing, it is not relevant and is highly prejudicial at a trial on the merits. In spite of the fact that Rosse’s counsel did not object to the introduction of the testimony at trial, the Second Circuit went so far as to suggest that it would have found plain error if Rosse had not taken the stand to testify that he was being “framed” by postal inspectors, thus making relevant the basis of the postal inspectors’ actions in focussing attention on the defendant, and rendering the admission of the testimony proper. No such defense testimony is present here, and Trevino’s counsel properly asserted his objection at the trial.

To contend, as the government does, that the objeeted-to testimony did not prejudice the defendant’s case is, I think, to ignore reality. The postal inspector testified not that he was involved in the investigation of missing mail, but that he was involved in the investigation of internal theft. And the inspector went on to refer to “letters which fail to reach their destination” or “ a problem area.” I do not believe that the use of such euphemisms distinguishes away the thrust of Rosse. In my opinion, only the most naive juror could have failed to see their true and intended meaning.

In deciding the question of admissibility of evidence, the district judge’s task is to strike a proper balance between relevancy and prejudice. The appropriate appellate test is one of abuse of discretion. United States v. Bell, 5th Cir. 1972, 457 F.2d 1231, 1237. Since this testimony was inadmissible at trial for any purpose, the district court abused its discretion in admitting it. With deference to the majority, I dissent from the suggestion in the majority opinion that this testimony may be admitted against Trevino at a new trial.

      . Defenses and objections based on defects in the institution of the j)roseeution or in the indictment or information other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the indictment or information to charge an offense shall be noticed by the court at any time during the pendency of the proceeding.

      . Whether appellant is now to be indicted and tried for the crime of embezzlement under the statute is a matter that addresses itself to the Department of Justice. See United States v. Beard, supra, 414 F.2d at 1017.

      . Q . . . What are your duties with the Postal Department?
      A I am involved in the investigation of internal theft.
      Q Briefly, briefly describe how you conduct these investigations.
      A Well, we have a, a form of complaints that patrons give us when they mail a letter that fails to reach its destination. They file a— [defense counsel] :—May it please the Court, I believe there is a Motion in Limine which covers this testimony and I must object to its introduction.
      [prosecutor] : We are not in the area of his motion in limine.
      THE COURT: I dont believe he is.
      [defense counsel]: AVell, I believe he is about to—
      [prosecutor] :—When we get into it, we will-—
      THE COURT:—He is not there and I am going to let him go ahead.
      [By prosecutor] :
      Q Excuse me, go ahead.
      A A patron who mails letters which fail to reach their destination notifies the Post Office which makes a tracer form. Prom the traeer form we try to locate the letter, and a copy of the tracer form is sent to me after it lias been determined that the letter can’t be located. I analyze these forms, and on a continuing basis, and when it looks like there is a problem area, I go into the office to investigate it.
      Q All right, by the office, you mean the Post Office?
      A Well, a specific unit.whei’e there seems to, there appears to be a problem.
      Q All right, now did you have the occasion to make such an investigation in Alice, Texas, at the Post Office, in January of 1972?
      A Yes, I did.
      Transcript of Trial Proceedings at 35-36.

      . “The introduction of this evidence, however, was so irregular and its potential effect so damaging to Rosse that we might be inclined to order a new trial if later events at trial had not largely nullified the prejudice . . ” U. S. v. Rosse, supra, 418 F.2d at 41.
      Judge Lumbard, writing for the Court, further noted that in the normal case, “[t]he government cannot use the defendant’s rebuttal testimony as grounds for claiming independent vitality for its inadmissible evidence.” But the Chief Judge concluded that Rosse’s was not the normal case :
      “ . . . Rosse’s claim of a frame-up in no way was a defensive' parry, or an attempt to repair the damage done by the inspectors’ testimony; if anything, it provided a favorable context for that evidence by rendering it directly relevant. Also, defendant was not “forced” to testify to repair his character here, since his counsel in opening statement referred to the prior investigation and announced that Rosse would take the stand.”
      418 F.2d at 42. Judge Waterman, concurring in the result, concluded that in view of the overwhelming evidence of Rosse’s guilt and the failure of Rosse’s attorney to object, the “highly improper admission” was harmless error. But he disapproved of the “bootstrap” procedure by which the government’s introduction of the evidence was sanctioned:
      “the Government ought not to be permitted to cure a wrongful admission of prejudicial evidence placed before the jury as part of the Government’s direct case by pointing to its accidental relevancy to some part of the defendant’s direct case.”
      418 F.2d at 42. There is no question of “order of proof” or of any defense testimony making the postal inspector’s testimony relevant in the present case. I have noted Judge Lumbard’s and Judge Waterman’s comments only to demonstrate that in only unusual circumstances can such testimony ever be admitted.


source: Caselaw Access Project

author: DYER, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Don Victor HARBOLT, Jr., Defendant-Appellant.
    No. 73-3305
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 14, 1974.
    Rehearing Denied April 2, 1974.

      Wayne H. Paris, Houston, Tex. (court-appointed), for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Mary L. Sinderson, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

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

   DYER, Circuit Judge:

In a jury trial Harbolt was found guilty of conspiracy to rob a bank, the deposits of which were insured by the Federal Deposit Insurance Corporation, in violation of 18 U.S.C.A. § 371 (Count 1); of aiding and abetting bank robbery by force, violence and intimidation in violation of 18 U.S.C.A. § 2113(a) and 18 U.S.C.A. § 2 (Count 2); and of aiding and abetting the robbery of a bank by use of force and at gunpoint in violation of 18 U.S.C.A. § 2113(d) and 18 U.S.C. A. § 2 (Count 3). We affirm.

The only noteworthy issue on appeal is Harbolt’s contention that during the Government’s cross-examination of Gruner, a former co-defendant called as a witness by Harbolt, the prosecutor knowingly elicited the fact that Gruner first met Harbolt in the Federal Reformatory in El Reno, Oklahoma and that after Gruner’s release he met Harbolt in the Halfway House in Dallas, Texas. Harbolt’s motion for a mistrial was denied.

Harbolt argues that it was reversible error for the district court to permit evidence to be introduced that Harbolt might likely be guilty of the offense for which he was being tried because he had committed prior criminal acts. United States v. Abshire, 5 Cir. 1972, 471 F.2d 116; Melton v. United States, 10 Cir. 1968, 398 F.2d 321; United States v. Hall, 4 Cir. 1965, 342 F.2d 849. We, of course, subscribe to this general rule and its application particularly where the probative value of evidence of other crimes may be very slight and its prejudicial character may be very strong. United States v. Knohl, 2 Cir. 1967, 379 F.2d 427, cert. denied, 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 465. But the present ease is not of that kind. Gruner was a defense witness called to establish that he coerced Harbolt in aiding and abetting the bank robbery and to establish eorrelatively Harbolt’s purported lack of affirmative action in the robbery scheme. Harbolt never attempted to negate his presence and participation with the others both before and during the robbery, but attempted to prove that his participation was minimal and coerced by Gruner. The Government attempted to counter this by showing the longstanding friendship between the two. The admissibility of such evidence is a matter within the broad discretion of the trial court, United States v. Abshire, supra, at 118; United States v. Gonzalez, 5 Cir. 1972, 460 F.2d 1286, and we find no abuse of discretion in this instance.

In any event, the error, if there be one, does not rise to constitutional dimensions. Under these circumstances, the test for determining whether a non-constitutional error is harmless has been stated in Kotteakos v. United States, 1946, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557, as follows:

If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress. . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

See also United States v. Steinkoenig, 5 Cir. 1973, 487 F.2d 225.

Although the cross-examination of Gruner did not disclose the nature of the prior offense committed by Harbolt, the fact that he was in prison when he met Gruner permitted the inference that he was a “bad man” who would rob a bank. On the other side of the coin the properly admitted evidence against Harbolt was overwhelming—-indeed it was uncontroverted that he was one of the five who planned and participated in the bank robbery. “The weight of the evidence properly admitted, we conclude, removes any possibility that * * * [the reference to Harbolt’s previously serving time in the penitentiary] had a substantial influence on the jury. See United States v. Bankston, 5 Cir. 1970, 424 F.2d 714.”

Affirmed.

      . Four co-defendants were indicted with Harbolt, two of whom subsequently pled guilty to Count 1 and two pled guilty to Count 2.

      . We have considered and find without merit Harbolt’s contentions that there was plain error in the court’s failing to instruct the jury that Harbolt was charged as an aider and abetter in Counts two and three of the indictment ; in permitting Harbolt’s court-appointed counsel to continue his representation, when intermittently called upon to do so by Harbolt and the court, after the court dismissed counsel at Harbolt’s request so that he could proceed pro se-, that the Eighth Amendment was violated because the court imposed a more severe sentence upon Harbolt than was imposed upon his co-defendants because he did not plead guilty; and that the court failed to ascertain whether Harbolt understood that he was being charged as an aider and abetter in Counts two and three in violation of Rule 10, Fed.R.Crim.P., and his right to due process.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Charles CORNISH, Defendant-Appellant.
    No. 73-1189.
    United States Court of Appeals, First Circuit.
    Argued Jan. 8, 1974.
    Decided Feb. 5, 1974.

      William P. Homans, Jr., Boston, Mass., with whom Featherston, Homans, Kluboek & Griffin, Boston, Mass., was on brief, for appellant.
    Lawrence P. Cohen, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
    Before COFFIN, Chief Judge, ALDRICH and McENTEE, Circuit Judges.
   PER CURIAM.

After a jury trial, appellant was convicted of conspiring to distribute a quantity of cocaine, a controlled substance, in violation of 21 U.S.C. §§ 841 (a)(1), 846 (1970). The sole issue presented by this appeal is whether there was sufficient evidence adduced at trial to establish beyond a reasonable doubt that a conspiratorial agreement existed between appellant and his codefendant, Barbara Murchison. The evidence, which for these purposes must be considered in the light most favorable to the government, indicated that on the afternoon of July 6, 1973, one Francis Dever, an undercover agent attached to the Federal Bureau of Narcotics and Dangerous Drugs, met with Murchison and a government informant in Boston in order to purchase cocaine. Murchison stated that she knew of a source of supply, described as a “good friend” of hers, but said that this “man would not meet with [agent Dever] with the cocaine.” Consequently, an arrangement was reached whereby the agent gave $1,000 to the informant who was to hold the money until the cocaine was delivered.

Later the same day, agent Dever observed Murchison as a passenger in a car driven by appellant. After dropping her off near a bar on Columbus Avenue in Boston, appellant continued outbound on that road, with the agent in close pursuit. At the intersection of West Springfield Street and Columbus Avenue, both vehicles stopped and appellant left his car and walked over to the passenger side of the agent’s automobile. The agent then asked appellant where the cocaine was, to which appellant replied that “it was with Miss Murchison, back on Columbus Avenue.” After being thanked by the agent, appellant responded, “Any time.”

At the conclusion of this meeting, which provides all the evidence in the record as to the appellant’s asserted participation in the conspiracy, Dever returned to the vicinity of the bar on Columbus Avenue where he had earlier seen Murchison depart from appellant’s car. After parking his vehicle, the agent joined Murchison who produced a brown paper bag containing the desired amount of cocaine. This was then given to the agent, thus completing the illicit transaction.

On these facts, we cannot say that there was insufficient evidence from which the jury could conclude beyond a reasonable doubt that appellant knew of and participated in a conspiratorial agreement with Murchison whereby cocaine was ultimately distributed to the government agent. Admittedly the evidence is circumstantial, but that is frequently the nature of proof in a trial for conspiracy. And when we consider that Murchison had to contact her “connection” in order to acquire the cocaine; that appellant dropped Murchison off at the spot where the ultimate transfer took place; that, when followed, appellant stopped his car and deliberately went over to speak to agent Dever; and that when asked where the specific cocaine the agent wished to purchase was, appellant, who had never before seen Dever, promptly responded that “it” was back with Murchison, we do not believe that it can be fairly contended that the evidence against appellant was insufficient to sustain the jury’s verdict.

The case of United States v. Hysohion, 448 F.2d 343 (2d Cir. 1971), upon which appellant primarily relies, is not dispositive of the issue before us. Even if we were to accept the dictum in the majority opinion of Hysohion, as distinguished from Judge Moore’s concurrence, the facts in that case, precluding a finding of a working relationship with the supplier, were far more favorable to the defendant.

Affirmed.


author: THORNBERRY, Circuit Judge:

text:
    SHELL OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. CITIES SERVICE OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent. PUBLIC SERVICE COMMISSION FOR the STATE OF NEW YORK, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
    Nos. 73-1329, 73-1763, 73-2028.
    United States Court of Appeals, Fifth Circuit.
    March 14, 1974.
    Rehearing Denied April 15, 1974.

      Sam H. Riggs, Jr., Clark A. Halderson, Tulsa, Okl., for petitioner in 73-1763.
    Leo E. Forquer, Gen. Counsel, Federal Power Commission, George W. McHenry, Jr., Acting Sol., Michael J. Manning, Atty., John R. Staffier, FPC, Washington, D. C., for Federal Power Commission.
    Homer D. Johnson, William C. Charlton, Pampa, Tex., for intervenors (for petitioner) in 73-1763.
    John E. Holtzinger, Jr., Frederick Moring, Washington, D. C., for Associated Gas Distributors.
    Richard F. Generelly, Washington, D. C., John T. McMahon, Houston, Tex., for Ashland Oil Co.
    Carroll L. Gilliam, Philip R. Ehrenkranz, Washington, D. C., for Mobil.
    Robert D. Haworth, Houston, Tex., for Mobil Oil Corp. in 73-1763.
    Thomas G. Johnson, Dan A. Bruce, William G. Riddoch, Houston, Tex., E. M. Sutter, New Orleans, La., for petitioner in 73-1329.
    Robert D. Haworth, James T. Nesbitt, Houston, Tex., for Mobil Oil Corp., in 73-1329.
    David G. Stevenson, Tulsa, Okl., for Amerada Hess Corp.
    Ronald J. Jacobs, Tulsa, Okl., for Skelly Oil Co.
    Kenneth Heady, John L. Williford, Bartlesville, Okl., for Phillips Petroleum Co.
    T. C. McCorkle, Chicago, Ill., for Amoco Prod. Co.
    Edward J. Kremer, Jr., William J. Bonner, Dallas, Tex., for Atlantic Rich-field Co.
    J. Donald Annett, Washington, D. C., Kirk W. Weinert, John M. Young, C. Fielding Early, Jr., Houston, Tex., for Texaco, Inc.
    Richard A. Solomon, Washington, D. C., for petitioner in 73-2028.
    E. W. Cole, Washington, D. C., for Union Oil Co. of California.
    Martin L. Friedman, Washington, D. C., for Phillips Petroleum Co.
    Thomas G. Johnson, Houston, Tex., for Shell Oil Co.

      Robert D. Haworth, Tom P. Hamill, Houston, Tex., for Mobil Oil Corp. in 73-2028.
    Before GEWIN, THORNBERRY and COLEMAN, Circuit Judges.
   THORNBERRY, Circuit Judge:

In 1954 the Federal Power Commission began its search for a solution to the baffling puzzle of producer regulation. In 1965 it settled on area ratemaking and contract vintaging. But after ten years gas demand continues to outstrip supply, and the producer regulation problem remains unsolved. This case marks the beginning of a new phase in the continuing effort to hit upon a rate-making technique that will bring the gas supply in line with consumer demand.

This petition for review comes to us in a most unusual posture. All the parties, including FPC, agree that the rates set in the Appalachian and Illinois Basin Area (AIBA) were satisfactory for only slightly more than a year and now are obsolete. But the parties’ harmony ends there, and the pricing problem’s solution is hotly disputed. The petitioners have suggested a new area rate proceeding and a third “vintage” of gas prices. To their dismay and disbelief, in Opinion 639 FPC not only rejected their suggestions but went on virtually to abandon the concepts of area pricing and contract vintaging. We affirm the Commission’s decision.

I.

This case is the product of gas company dissatisfaction with FPC’s Order No. 411, which set area rates for gas produced in AIBA. The order was issued October 2, 1970, and never appealed. Less than sixteen months later, however, Iroquois Gas Corporation, Pennsylvania Gas Company, United Natural Gas Company, and Columbia Gas Transmission Corporation formally complained that Order 411’s rates were too low. Their petition requested FPC to amend its regulations by establishing a third, higher priced vintage for AIBA gas sold after February 1, 1972.

The Commission considered this petition in an informal rulemaking proceeding that commenced with a notice issued June 19, 1972. Thirty-two parties responded to the notice with their written views of the rate revision request. On December 12, 1972, FPC in Opinion 639 denied the petitioners’ request. That opinion is the subject of the instant appeal by the New York Public Service Commission (NYPSC) and a group of producers (collectively referred to as “Shell”), who were intervenors below.

On appeal petitioners attack two aspects of Opinion 639. Their first complaint is that FPC abused its discretion by recognizing the present area rates’ inadequacy and refusing to amend them upward. The second objection is that FPC acted illegally and irrationally when it interpreted its prior rate orders’ vintaging provisions in a manner that will phase out gas pricing by contract vintage.

II.

We consider first FPC’s refusal to amend area rates. At the outset we note that petitioners agree with FPC’s fact findings. After measuring the effectiveness of curren area rates in AIBA the Commission found:

On the basis of each of the general areas discussed above—national supply, area drilling and production activity, intrastate competition for new gas, the need for deep exploration, comparative costs, and changes in cost of service—we are persuaded that the rate structure provided in Order 411 is not a complete answer to the need of the consuming public for adequate and reliable supplies of new gas.

Thus FPC found that Order 411’s rates are too low to ensure adequate gas supplies—but declined to make an areawide change.

The producer petitioners argue that FPC has drawn an illogical conclusion from its correct fact findings. In their view, if the area rates are inadequate, the logical remedy is to raise them. To do otherwise is to leave in effect unjust and unreasonable rates, and that constitutes an abuse of discretion. The petitioners recognize that the Supreme Court has granted FPC a liberal standard of review in area rate cases, but they argue that Opinion 639 is unjust and unreasonable in its consequences because it leaves in effect inadequate rates.

Because the impact of this aspect of Opinion 639 is to leave standing the area rate structure created by Order 411, we will examine it with the standard of review appropriate for rate orders. The Supreme Court has said that rate orders are to be approved unless their total effect can be called “unjust and unreasonable.” We are concerned with the rates’ consequences, not the method by which they are formulated. The Commission is not bound to a single ratemaking method or formula, and it is at liberty to make pragmatic adjustments in its methods. Its rate orders are the products of expert judgment and as such are presumed valid unless a petitioner can show the consequences will be unjust and unreasonable. In re Permian Basin Area Rate Cases, 1968, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312; FPC v. Hope Natural Gas Co., 1944, 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333. See Austral Oil Co. v. FPC, 5th Cir. 1970, 428 F.2d 407, cert. denied, 400 U.S. 950, 91 S.Ct. 244, 27 L.Ed.2d 257 (SoLa I).

The next step is to review the Commission’s position in light of the “unjust and unreasonable consequences” standard. Applying that standard to Opinion 639 convinces us that it does not leave the producers in such a hopeless situation that it will have unjust and unreasonable consequences. While it rejects area rate revision, it provides two alternative routes for seeking higher rates. We cannot say that foreclosing one route to higher rates is necessarily unjust or unreasonable.

For gas produced from wells commenced after April 6, 1972, producers may seek rates above the area ceiling via the optional certification procedure provided in Order No. 455, 18 C.F.R. § 2.75. The Commission has set out eight tests to determine whether an Order No. 455 rate request meets the statutory standard of “just and reasonable”:

(1) the contract rate in relation to other intrastate and interstate contract rates in that area, (2) the costs developed in recent area rate decisions, (3) increased costs since the close of hearing records, of which this Commission can take official notice, (4) the price of alternate fuels, (5) the supply-price-demand relationship, (6) capital formulation within the producing industry, (7) the consequences of our order upon the producing industry and (8) whether the order provides appropriate protection to the relevant present and future public interests.

Order Denying Application for Rehearing in Opinion 639, __F.P.C.__ [Feb. 8, 1973].

Order No. 455 optional certification provides an avenue of relief for “new gas” producers who are willing to go outside the area rate structure. Opinion 639’s second escape route, the departure from contract vintaging, is designed to give rate relief to producers desiring to stay within the area rate structure. It makes their “old” gas eligible for the higher current area rates by narrowly interpreting the contract vintaging provisions in existing area rate orders. When current production contracts expire, producers may contract with their customers to sell flowing gas at the higher current area rate for “new” gas.

Shell finds these relief opportunities inadequate and argues that FPC abused its discretion by refusing to raise area rates across the board. It maintains that Opinion 639 forces each producer individually to seek relief before the Commission, a return to the old case-by case-ratemaking approach that area regulation was intended to replace. With area rate- revision unavailable, the “optional” procedure becomes mandatory in Shell’s view, and the Commission will be hopelessly flooded with Order 455 rate requests. Shell believes that an individualized approach to ratemaking is unworkable, and the ultimate effect of the inevitable administrative nightmare will be to discourage new production.

Mindful of FPC’s wide latitude in choosing a method of regulation, In re Permian Basin Area Rate Cases, supra, we cannot say it abused its authority in choosing optional individualized procedures over further area proceedings in the Appalachian and Illinois Basin Area. It gave sound reasons for disfavoring further use of the area method in AIBA. The rate structure optimistically promulgated in 1970 failed to stimulate production and elicit new gas supplies. Only a little more than a year passed before Order No. 411 faded into a premature obsolescence. Given that situation, the Commission perceived two alternatives: hold a new area rate proceeding that would either raise the existing rates or establish a third vintage for “new” gas, or else grant relief on an individual basis. It saw no reason why new area rates would fare any better than the old. Consequently it eschewed additional area ratemaking in AIBA in order to “avoid that which experience has shown to be futile.”

We see no reason to force the Commission to continue using a regulatory tool that has proven to be unwieldy and unproductive. The wiser course is to allow the Commission to experiment further, in hopes that eventually it will find an acceptable method of pricing gas. We said in SoLa II:

[T]he thrust of Permian is that FPC is free to make an administrative determination which it believes will foster the most efficient and thorough regulation of natural gas rates. The method which it chose in Permian and SoLa I and II is the area rate method.

Placid Oil Co. v. FPC, 5th Cir. 1973, 483 F.2d 880, 912. Now FPC has decided to move on and try individualized procedures in lieu of the area rate method. Should this latest venture prove administratively unworkable, the Commission is free to try yet another method, perhaps uniform national rates.

III.

Besides refusing to institute a new area rate proceeding that would establish a third vintage, the Commission interpreted Order 411 (and all rate orders with similar language) in a manner that eventually will eliminate contract vintaging.

The wording of Order 411, and all other Commission area rate orders or opinions of similar import, stating that “old” gas rates will be applicable to “gas sold pursuant to a contract dated prior to October 8, 1969” will be literally and strictly applied. If a gas contract dated prior to October 8, 1969, terminates, and the purchaser and seller enter into a new contract, gas sales under the new contract will be governed by the applicable pricing provisions relating to “gas sold pursuant to a contract dated after October 7, 1969.” We will, thereby, simply adhere to the plain meaning of Order 411, and other orders and opinions with similar language, as written. In time this will result in the elimination of a two-price system, a result we believe intended by the original authors of vintaging and a result we wholeheartedly endorse.

NYPSC voices two primary objections to this construction of earlier area rate orders. First, it is illegal because it contradicts their intent. Second, it is irrational because it permits higher rates for flowing gas when there is no reason to believe producers will engage in new exploration and greater production in exchange for this act of FPC charity.

Before reaching the substance of FPC’s vintaging statement, we must treat a halfhearted procedural objection raised by NYPSC. The complaint is that the vintaging statement is a basic modification of FPC regulations, and not the permissible interpretation it is advertised to be. Therefore the vintaging statement should have been preceded by notice and a hearing and supported by record evidence, in accordance with the rulemaking prerequisites set out in Section 4 of the Administrative Procedure Act. We disagree with NYPSC’s premise; we believe the vintaging statement is a permissible interpretation, not a basic modification of rate-setting regulations. It alters no existing rates, and, as discussed below, it fits the meaning of the regulations’ language. Whether we characterize the statement as an interpretation or an interpretative rule, notice, a hearing and a record were not required. Garelick Mfg. Co. v. Dillon, 1963, 114 U.S.App.D.C. 917, 313 F.2d 899; Gibson Wine Co. v. Snyder, 1952, 90 U.S.App.D.C. 135, 194 F.2d 329. See 1 K. Davis, Administrative Law Treatise §§ 5.01-5.05.

We turn now to NYPSC’s substantive objections. At the outset we note that a stricter standard of review is the concomitant of issuing an interpretation or interpretative rule instead of giving notice and holding a hearing. We will accord less deference to an interpretative rule than to a legislative rule. Compare Skidmore v. Swift & Co., 1944, 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124, with American Telephone & Telegraph Co. v. United States, 1936, 299 U.S. 232, 57 S.Ct. 170, 81 L.Ed. 142. 1 K. Davis, Administrative Law Treatise § 5.03. Nonetheless, an agency’s interpretation of its own regulations merits deference and will be upheld if it is reasonable and consistent with the regulation. Udall v. Tallman, 1965, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616; Bowles v. Seminole Rock & Sand Co., 1945, 325 U. S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700; Campbell Co. v. Wood Construction Co., 5th Cir. 1971, 446 F.2d 261.

In determining whether FPC has made a permissible interpretation, the first step is to determine whether its construction is consistent with the regulations’ language. The interpretation is directed at those sections of area rate orders stating that “old gas” rates will be applicable to gas sold pursuant to a contract made prior to a certain date. Order 411 provides an example, limiting prices to:

(1) 30.750 for gas produced in the North subarea . . . and sold pursuant to a contract dated prior to October 8, 1969; and 32.75 for gas sold pursuant to a contract dated after October 7, 1969.

18 C.F.R. § 154.107(c) (1). We find this wording ambiguous. It could be read as putting a permanent ceiling on the price of gas for which a contract had been signed before the division date. Even if the contract expired, the prices on that gas would remain frozen because its original production contract had been signed before the cutoff date. Alternatively, a narrow interpretation of the same language would require the price to remain frozen only as long as a predivision date production contract remained in force. FPC, of course, has chosen the latter construction. We cannot overrule the Commission because it has chosen one of two possible interpretations of its own ambiguous regulations.

FPC’s interpretation will gradually discontinue the use of vintaging. That result does not appear to be inconsistent with the Commission’s original plans for the two-price concept. Before any of the area rate proceedings had begun, Statement of General Policy 61-1, 24 FPC 818 (1960), established two levels of guideline prices for each of the various production areas. There was an “initial service rate” at which certificates would be issued for gas produced under new contracts, and a separate “increased rate” level for rate increase requests for gas already under contract. Thus this policy statement appears to be the origin of the two-price system based on contract date. Significantly, in this policy statement the Commission indicated its intention eventually to use a unitary pricing system.

Two price standards are set for each area. Initial prices in new contracts are, and in many cases by virtue of economic factors, must be higher than the prices contained in old contracts. For this reason, we have found it advisable to adopt two schedules of prices, one pertaining to initial prices in new contracts and one pertaining to escalated prices in existing contracts. It is anticipated that these differences in price levels will be reduced and eventually eliminated as subsequent experience brings about revisions in the various areas. (Emphasis supplied).

24 FPC 818 at 819. We conclude that FPC is acting consistently with its original views on vintaging by phasing out that concept with a narrow interpretation of its existing regulations.

NYPSC argues that because the new vintaging interpretation is irrational, it will produce results contrary to those intended by the original vintaging policy. FPC instituted vintaging to give producers a higher price for newly found gas as an incentive to new production, while avoiding producer windfalls by leaving flowing gas priced at frozen rates based on historical costs. But FPC’s new interpretation of the vintaging provisions will produce a contrary result, we are told. With “new” and flowing gas at the same price level, the producers will have no incentive to find more gas because they can reap windfall profits by selling cheap flowing gas at the higher rate formerly reserved for “new” gas. If FPC required the producers to show higher costs or new production to justify the higher rate, then FPC would be acting rationally. But it is irrational only to raise gas rates with no quid pro quo required. The producers will not find increased production to be in their best interest, and, as NYPSC puts it, they will “take the money and run.”

NYPSC’s pessimism is understandable and may, in time, prove justified. It is true that producers who sign new contracts at the current area rates will find their “old gas” rate boosted by an incre.ment greater than their cost increases. And it is possible, as NYPSC forecasts, that producers will reap the new high rates for their flowing gas without engaging in further drilling.

It is also conceivable, however, that a departure from vintaging will serve to increase gas production. In Opinion 639 the Commission stated it believes that vintaging actively discourages new drilling on acreage already committed to the interstate market. If a producer has signed a contract before the division date, all the gas he producers during the contract’s life will receive the low “old gas” price. Even if he drills new wells at current costs, the “new” gas he discovers and produces will be priced as “old” gas, on the basis of historical costs computed in a year long since gone by. Since costs seem to rise inexorably with the passage of time, new drilling will become less attractive as the contract ages. For example, we think it quite likely that a producer operating under a 1964 contract may have little incentive to find expensive 1974 gas only to sell it at bargain 1964 rates. But if he can raise his prices to a uniform rate for both “new” and “old” gas when the old contract expires and a new one is signed, he might be more inclined to drill new wells.

If the higher rates do stimulate production, the extra increment for flowing gas will supply needed additional capital for exploration and drilling. Precedent, moreover, supports the view that FPC does not necessarily create an irrational windfall when it includes in the price of flowing gas an increment for further exploration and development. We approved in SoLa II a rate structure with just such an increment.

While we are fully aware that history may prove NYPSC’s pessimistic prediction of producer behavior to be correct, we hold that FPC’s interpretation of its regulations’ vintaging provisions is rational, reasonable, and therefore fully permissible.

A caveat is appropriate at this point. In regard to vintaging, today we are approving FPC’s interpretation of certain regulations. We do not reach the question of whether FPC may altogether discontinue the use of vintaging. Rather in each future rate order the Commission must continue to produce substantial evidence to support each essential element of the proposed rate structure. In re Permian Basin Area Rate Cases, supra. Certainly the absence or presence of vintaging must be regarded as an essential element.

Having concluded that Opinion 639 does not produce unjust or unreasonable consequences, and that it expresses a permissible interpretation of area rate orders’ vintaging provisions, we sustain the opinion in full.

Affirmed.

      . In Phillips Petroleum Co. v. Wisconsin, 1954, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (Phillips I), the Supreme Court first held that FPC must regulate producers’ wellhead gas sales to interstate pipelines.

      . Permian Basin Area Rate Proceeding, 34 FPC 159 (1965), aff’d sub nom., In re Permian Basin Area Rate Cases, 1968, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312.

      . Area Rates for the Appalachian and Illinois Basin Areas, Order No. 411, 44 FPC 1112 (1970).

      . Re Area Rate Proceeding for the Appalachian and Illinois Basin Areas, __ F.P.C. __, 97 P.U.R.3d 289 (1972).

      . Vintaging by contract is the practice of pricing gas according to the date when the contract for its production was signed. Area rate orders have used contract vintaging in establishing a two-tiered rate structure. All gas produced under contracts signed before a certain date is pegged at one price, while the gas produced under later contracts gets a higher price. See, e. g., Area Rates for the Appalachian and Illinois Basin Area, Order No. 411, 44 FPC 1112 (1970). Theoretically the bifurcated pricing system encourages exploration and new production by granting a higher price for '“new” gas.

      . Area Rates for the Appalachian and Illinois Basin Area, Order No. 411, 44 FPC 1112 (1970).

      . The AIBA rates are set forth as an FPC regulation and may be found at 18 C.F.R. § 154.107-8.

      . In Permian the Supreme Court laid down three standards for reviewing rate orders. The order may not exceed the Commission’s statutory authority; each essential "element must be supported by substantial evidence; and the rates must be high enough to ensure a satisfactory return on the producers’ investment. The third standard is not applicable here because the presently inadequate rates will likely be raised by the means FPC suggests in Opinion 639. The second is not applicable to the decision against raising area rates because no fact findings are disputed. We are concerned only with the first: statutory authority. The relevant statutory mandate in this case is to set “just and reasonable” rates. Natural Gas Act § 5(a), 15 U.S.C.A. § 717d(a). Hence we apply an “unjust and unreasonable” standard of review to FPC’s refusal to raise area rates. See FPC v. Hope Natural Gas Co., 1944, 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333.

      . In Opinion 639 the Commission suggests that area ratemaking “ . . . has not demonstrated sufficient flexibility to maintain a workable relationship between supply and demand, and . . . requires the use of noncurrent cost data.” It suggests further that a uniform national rate is not “subject to these infirmities” and is under consideration as an alternative to area rates. We fail to see why area ratemaking necessarily is more dependent on noncurrent cost data than nationwide ratemaking, but the Commission has left us with only conclusory statements concerning the failure of the area method. Despite the paucity of specific reasons why area regulation has failed, the worsening shortage of natural gas convinces us that the Commission is correct in concluding that it has failed to hit upon an adequate method of pricing that valuable resource. See Comment, 50 Texas L.Rev. 1370 (1972), in which the author chronicles the unhappy history of gas price regulation.

      . 5 U.S.C.A. § 553.

      . Section 4(a) of the A.P.A. provides, in pertinent part:
      Except when notice or hearing is required by statute, this subsection does not apply—
      (A) to interpretative rules 5 U.S.C.A. § 553(b).

      . NYPSC contends that the two-price system formulated in Statement of General Policy 61-1 has a rationale and method of operation so unlike the vintaging scheme written into the later area rate orders that one cannot call the 1960 statement the origin of the vintaging concept. As for rationale, we note that both systems express a recognition that producers’ costs rise over time and necessitate a higher price for “new” gas. In regard to method of operation, both attempt to set “old” gas prices at a lower level and maintain a differential between the “old” and “new” levels.


author: AINSWORTH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Donnie Ray JEFFORDS, Charles Ray Kelly, Henry V. Little and Berry H. Newman, Defendants-Appellants.
    No. 73-2535.
    United States Court of Appeals, Fifth Circuit.
    March 18, 1974.
    Rehearing Denied April 18, 1974.
    William C. Calhoun, Augusta, Ga., George M. Stuckey, Jr., Bishopville, S. C., for defendants-appellants.
    R. Jackson B. Smith, Jr., U. S. Atty., B. C. Baxter, Jr., Asst. U. S. Atty., Augusta, Ga., for plaintiff-appellee.
    Before GOLDBERG and AINSWORTH, Circuit Judges and LYNNE, District Judge.
   AINSWORTH, Circuit Judge:

Appellants were convicted of violation of 18 U.S.C. § 371, conspiracy to violate Internal Revenue liquor laws (26 U.S.C. §§ 5179(a), 5180, 5601(a), 5681(c), 7206(4)). We reverse the conviction of appellant Newman; the other convictions are affirmed.

Newman moved for a judgment of acquittal at the close of the Government’s case and again after the verdict, which motions were denied. The extent of the evidence against Newman on which the Government relies is the trial testimony of Chief Investigator Perier, who saw Newman only once during the entire period of the investigation. He observed Newman, at nightfall, from a distance of 50 to 75 yards, peer into the back of a truck. Perier’s pertinent testimony is as follows:

Q. All right, now. The only thing you said you saw Mr. Newman do was he looked in the truck, is that correct?
A. That’s correct. That’s the only thing I saw him do at the truck.
Q. And you saw him—during this entire investigation, you saw him one time, and then you saw him look at some jugs but you don’t know what those jugs contained, is that correct?
A. I don’t personally know what the jugs contained, no, sir.

There was also evidence^ that Newman was present when Kelly bought a truck which was later seized because it contained nontaxpaid liquor. On the occasion when Newman was observed peering into the truck, he had driven another truck to that location, behind which a stash of illegal whiskey was located. None of the other agents involved in the investigation ever saw Newman.

In response to Newman’s motion for acquittal at the close of the Government’s ease, the Government stated that it felt that sufficient evidence had been presented to entitle the jury to consider whether, as a matter of fact, Newman was a part of the conspiracy. The following ensued:

THE COURT: Well, its pretty weak.
MR. BAXTER [prosecutor]: It’s not the strongest case in the world. I agree.
THE COURT: Well, I’ll tell you, Mr. Calhoun [defense counsel], I don’t think it’s a very strong case against him, these two incidences, and then perhaps the fact he took the title without ever actually having it signed over to him, as far - as the evidence shows, but I am going to go—overrule the motion, but you, in the event the Jury finds against him, you reurge your motion at that time.

The test in a criminal case to determine whether there is sufficient evidence to submit the case to the jury is:

On a motion for judgment of acquittal, the test is whether, taking the view most favorable to the Government, a reasonably-minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt. Sanders v. United States, 5 Cir., 1969, 416 F.2d 194, 196; Jones v. United States, 5 Cir., 1968, 391 F.2d 273, 274; Weaver v. United States, 5 Cir., 1967, 374 F.2d 878, 881.

United States v. Warner, 5 Cir., 1971. 441 F.2d 821, 825, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). See also Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941); United States v. Stephenson, 5 Cir., 1973, 474 F.2d 1353. We find that as a matter of law the evidence against Newman was insufficient to submit the case to the jury. Therefore, denial of the motion for judgment of acquittal was error, and Newman’s conviction is reversed.

We have considered the other issues raised, admissibility of fingerprint evidence, establishment of chain of custody of fingerprint evidence, and sufficiency of the evidence of guilt as to the other appellants, and find them to be without merit. It was not error to admit Kelly’s fingerprints found on a brake fluid can in a truck seized at the illegal distillery. The trial testimony of Special Agents who took Kelly’s latent fingerprints on other objects established that the prints were in their custody until they were sent to and received by laboratory expert Ruth, who testified that he received the prints and used them to make comparison with the defendant’s known prints. There was ample evidence of Jeffords’, Kelly’s, and Little’s involvement in the conspiracy: Jeffords was observed working at the still; Kelly and Little were observed transporting illegal liquor. Their convictions are affirmed.

Reversed as to appellant Newman; affirmed as to appellants Jeffords, Kelly, and Little.

      . Cf. Vick v. United States, 5 Cir., 1954, 216 F.2d 228, 233, another liquor laws case:
      “Appellant may be guilty, but his conviction cannot rest upon mere conjecture and suspicion. Tbe evidence does not prove bim guilty beyond a reasonable doubt and is not sufficient to warrant tbe jury in so concluding.”


author: PER CURIAM:

text:
    Timothy G. HOLLON, by next friend, Garland Hollon, Plaintiff-Appellee, v. MATHIS INDEPENDENT SCHOOL DISTRICT, Olan McCraw, Jr., as Superintendent, and V. M. Thyssen, President etc., Defendants-Appellants.
    No. 73-1607.
    United States Court of Appeals, Fifth Circuit.
    March 15, 1974.
    James P. Ryan, Bruce D. Viles, Corpus Christi, Tex., for defendants-appellants.

      Nelson R. Sharpe, Kingsville, Tex., for plaintiff-appellee.
    Before BROWN, Chief Judge, and RONEY and GEE, Circuit Judges.
   PER CURIAM:

The issue presented on this appeal is now moot. The District Court entered a preliminary injunction against the enforcement of a high school regulation which bars married students from participating in athletics and certain other extracurricular activities. Pursuant to 28 U.S.C.A. § 1292(a)(1), the School District appeals the finding of unconstitutionality which undergirds the relief granted against it.

The sole plaintiff in this nonclass action, Timothy G. Hollon, graduated prior to the hearing on this appeal and seeks neither continuance of the preliminary injunction nor further permanent action from the Court. Prior to his marriage in his senior year in high school, Hollon competed successfully in football, base-' ball and basketball in the Interscholastic League operated by the University of Texas. The preliminary injunction effectively permitted him to continue in these activities until he graduated, despite the prohibitory school regulation. Upon graduation, Hollon’s interest in this proceeding terminated, and his counsel on appeal has suggested mootness.

“An issue becomes moot and hence no longer justiciable where as a result of intervening circumstances there are no longer adverse parties with sufficient legal interests to maintain the litigation.” 6A Moore’s Federal Practice |J 57.13, at 57-128 (1973 ed.). Compare Caldwell v. Craighead, 432 F.2d 213 (6th Cir. 1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1617, 29 L.Ed.2d 123 (1971) (request for injunctive relief against suspension from high school pep band mooted by student’s move to another city), with Jones v. Snead, 431 F.2d 1115 (8th Cir. 1970) (expiration of semester suspension from college did not moot civil rights suit for injunctive relief in view of possible collateral consequences).

“Where it appears upon appeal that the controversy has become entirely moot, it is the duty of the appellate court to set aside the decree below and to remand the cause with directions to dismiss.” Duke Power Co. v. Greenwood County, 299 U.S. 259, 267, 57 S.Ct. 202, 205, 81 L.Ed. 178 (1936); see SEC v. Medical Committee for Human Rights, 404 U.S. 403, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972).

The injunction by its terms has a continuing effect on the School District beyond Hollon’s graduation. We find inappropriate, however, the District Court’s restraint against enforcement of the regulation as to married students in general. The purpose of a preliminary injunction is to preserve the status quo during litigation to determine the merits of the case for permanent injunction. Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 441 F.2d 560 (5th Cir. 1971). In this case, which is not a class action, the injunction against the School District from enforcing its regulation against anyone other than Hollon reaches further than is necessary to serve such purpose. We would set aside this portion of the preliminary injunction, therefore, as an abuse of discretion, without reaching the constitutional question. Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas R. R., 363 U.S. 528, 80 S.Ct. 1326, 4 L.Ed.2d 1379 (1960); Allen v. Mississippi Commission of Law Enforcement, 424 F.2d 285 (5th Cir. 1970).

The preliminary injunction is vacated and the cause is remanded with directions to dismiss. This procedure prevents the judgment, “unreviewable because of mootness, from spawning any legal consequences.” United States v. Munsingwear, Inc., 340 U.S. 36, 41, 71 S.Ct. 104,107, 95 L.Ed. 36 (1950).


author: PER CURIAM: BROWN, Chief Judge,

text:
    Albert JOHNSON et al., Petitioners-Appellants, v. STATE OF MISSISSIPPI et al., Respondents-Appellees.
    No. 73-1476.
    United States Court of Appeals, Fifth Circuit.
    March 15, 1974.
    James E. Winfield, Frank R. Parker, Isaiah Madison, Jackson, Miss., for petitioners-appellants.
    John Ellis, Dist. Atty., George Chaney, Warren County Pros. Atty., Vicksburg, Miss., A. F. Summer, Atty. Gen., St. of Miss., Ed Davis Noble, Jr., Asst. Atty. Gen., Jackson, Miss., for respondents-appellees.
   ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion January 14, 1974, 5 Cir., 1974, 488 F.2d 284).

Before GODBOLD, DYER and GEE, Circuit Judges.

PER CURIAM:

The Petition for Rehearing is denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also denied.

Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

BROWN, Chief Judge,

with whom WISDOM, THORNBERRY, GOLDBERG and AINSWORTH, Circuit Judges, join, dissenting:

I dissent to the Court’s denial of rehearing en banc for two reasons. First, the issue is of recurring transcendent importance. Second, the panel’s decision in my opinion is doubtful if not erroneous.

The question of whether the right of removal, 28 U.S.C.A. § 1443(1), should be denied to those persons seeking redress under 18 U.S.C.A. § 245 is of such moment that it cries out for consideration by the en banc court and should not be disposed of by the panel’s sweeping but wholly unrevealing wave-of-the-hand declaration that § 245 “confers no rights whatsoever.” This Court has in no prior decision authoritatively resolved the question of whether Congress intended to confer rights upon the victims of conduct which is made a criminal offense under § 245.

It is my opinion that the panel improperly concluded that § 245 is not a law providing for the equal civil rights of citizens within the meaning of the removal statute. The restrictive interpretation applied to § 245 refuses appellants their “right” to peacefully protest racial discrimination free from the harrassment of bad-faith prosecutions inspired by their activities.

Such a right is, of course, provided for and guaranteed under the First Amendment. While Rachel [Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925] teaches that the broad protection afforded all citizens by the Constitution precludes the characterization of any of its provisions as a “law providing for equal civil rights” within the meaning of § 1443(1), § 245(b)(5) nevertheless provides unique, specific protection— phrased in terms of race—for the First Amendment right to protest segregation. Consequently it is a law providing for equal civil rights, satisfying the requirements of the civil rights removal statute.
* * * * *
In both its purpose (preventing unwarranted interference with the exercise of Federally protected equal civil rights) and the scope of its prohibition (against attempted injury, intimidation or interference by force or threat of force) § 245(b) is indistinguishable from the relevant provisions of the 1964 Civil Rights Act held sufficient to support removal jurisdiction in Rachel.

Perkins v. Mississippi, 5 Cir., 1972, 455 F.2d 7, 42-43 (Brown, C. J., dissenting).

Furthermore, the panel describes § 245 as exclusively a criminal statute not conferring any substantive rights. This position fails to recognize our Court’s policy of according full effect to the remedial objectives inherent in congressional acts which seek to protect disadvantaged . persons. Gomez v. Florida State Employment Service, 5 Cir., 1969, 417 F.2d 569, 576; Hall v. Garson, 5 Cir., 1970, 430 F.2d 430; Moreno v. Henckel, 5 Cir., 1970, 431 F.2d 1299.

“No one can look at the atmosphere in which § 245 and its related parts were enacted without sensing that the whole thrust was a strong, immediate, indignant congressional response to spectacularly violent outrages against Negroes.”

Perkins v. Mississippi, 5 Cir., 1972, 470 F.2d 1371, 1373 (Brown, C. J., dissenting).

The foreboding result which excludes § 245 from the ambit of removal establishes a precedent which will prevent the federal courts from granting relief in future cases of spurious criminal prosecutions against persons protesting racial discrimination. Even worse, this ruling, if it is allowed to stand, leaves a large group of potential victims without effective personal redress for acts which run the gamut of crass, undisguised racial discrimination. It is not confined merely to those pursued by unfounded prosecutions.

It denies history and the temper of Congress in the times giving rise to § 245 to assume that Congress, while on the one hand giving the awesome sanction of criminal law, meant on the other to grant no implied statutory claim to seek redress by damages for the conduct which violates the law. The law was designed to protect the oppressed. It hardly satisfies their needs when the only comfort to be derived is to send the perpetrator to jail and the victim is left without redress for damages directly flowing from the admitted criminal act.

      . Ostensibly Perkins may appear to state the law but in reality it is not a precedent, as witness the panel’s failure to cite it in the instant case. With petition for rehearing of the en banc decision still pending, the parties settled the whole case. We expressly denied the appellant-plaintiff’s motion to vacate and dismiss as moot, but in fact it was moot. Review by the Supreme Court became impossible and under all precedents the case was effectually eradicated so it spawns no legal precedents. Troy State University v. Dickey, 5 Cir., 1968, 402 F.2d 515, 516-517; New Left Educ. Project v. Board of Regents, 5 Cir., 1973, 472 F.2d 218, 221; National Lawyers Guild v. Board of Regents, 5 Cir., 1974, 490 F.2d 97.

      . Section 245 protects voting, voting procedures, running for office, enjoyment of governmental programs, employment by the United States, serving as a juror, attending school, enjoyment of state programs, joining or using a labor union, enjoying the services of inns, hotels, restaurants, encouraging others to protest against discrimination, enjoyment of free speech and public assembly, and many more.


text:
    Alfred FEATHERSTON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-3600
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 14, 1974.
    Alfred Featherston, pro se.
    Robert W. Rust, U. S. Atty., Lloyd G. Bates, Jr., Asst. U. S. Atty., Miami, Fla., for respondent-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

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

   PER CURIAM:

After a jury trial, Alfred Featherston, represented by court-appointed counsel, was convicted of teaching the use or making of explosives or incendiary devices, a violation of Title 18, United States Code, Section 231(a)(1). He received a sentence of four years imprisonment. We affirmed. United States v. Featherston, 5 Cir. 1972, 461 F.2d 1119, cert. denied, 409 U.S. 991, 93 S.Ct. 339, 34 L.Ed.2d 258. Now by “habeas corpus” petition, treated as a Section 2255 motion, Featherston challenges the validity of his conviction. We affirm the district court’s well-reasoned order dismissing the motion.

In addition to the points raised in the district court, on appeal Featherston contends that in the voir dire examination the district judge in the original trial improperly refused to allow defense counsel to ask auestions dealing with possible racial prejudice on the part of prospective jurors. On the § 2255 motion, the district court held that this issue had been resolved adversely to Featherston on his direct appeal. See 461 F.2d at 1123. Featherston, however, seeks review of that determination in the light of the Supreme Court’s decision in Ham v. South Carolina, 1973, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46, rendered after the consideration of his direct appeal by this Court.

Ham is distinguishable. In Ham, the Court reversed the narcotics conviction of a young black civil rights worker after the trial judge declined to ask prospective jurors any question as to possible racial prejudice, and specifically rejected two questions proposed by the defendant. The Court concluded that “the Fourteenth Amendment required the judge ... . to interrogate the jurors upon the subject of racial prejudice”, but added that he “was not required to put the question in any particular form, or to ask any particular number of questions on the subject, simply because requested to do so by petitioner”. 409 U.S. at 527, 93 S.Ct. at 850, 35 L.Ed.2d at 50. Unlike the district judge in the Ham trial, here the district judge made three references, two in question form, during voir dire to the need for freedom from racial prejudice. The trial judge did all that a trial judge needed to do to eliminate prejudice, including racial prejudice.

The order appealed from is affirmed.

      . The district court’s first reference to possible racial prejudice was an admonition: “Now, at the outset of tills trial let me say to you that tills courtroom is a temple of justice ; this is the place where people come to receive justice under the law and every man who is charged with any offense against the United States stands equally before the law, meaning that it doesn’t make any difference about their color or their nationality, origin or their politics, if it is known, or any other consideration.”
      Two later references were in question form. The court inquired:
      TIIB COURT: You heard what I said at the outset about each defendant [who] comes before this Court, that he is equal under the law and that we administer justice in this court to the best of our ability, and in doing that we pay no attention to the color of a man’s skin or his religion or his nationality or origin, or his politics or anything else. We confine it to the evidence in the case and the Charge of the Court.
      Now, cau each one of you do that?
      THE JURORS: (Nod in affirmative.)
      After three additional jurors were selected, the court again sought to determine if they were free from racial prejudice:
      THE COURT: Now, you heard and saw the defendant introduced and his counsel and counsel for the Government. You heard what I said, underlined and capitalized in red letters, that every man or woman who comes into this Court stands equal before the law. We don’t concern ourselves with the color of his skin or his religion or what nation he may have come from or his political views. We are concerned only with the evidence that has a bearing on his innocence or guilt and the law that is applicable. That is the way that this case must be tried.
      Now do each of you commit yourselves under your oath as jurors to approach the trial of this case exactly like that? Mrs. MacDonnell?
      MRS. MacDONNELL: Yes, sir.
      THE COURT: Mr. Copps?
      MR. COPPS: Yes, sir.
      THE COURT: Mrs. Neidiffer?
      MRS. NEIDIFFER: (Nods in affirmative.)
      THE COURT: All right.
      Although not in the form requested by the appellant’s counsel, these inquiries, if answered honestly, were sufficient to ensure that any juror harboring prejudice against the defendant on racial grounds could je excluded from the jury actually empanelled for trial. Earn requires no more.


text:
    Carey W. GREEN, Jr., et al., Plaintiffs-Appellants, Liberty Mutual Insurance Company, Intervenor, v. CARR TRUCK SERVICE et al., Defendants-Appellees.
    No. 73-1646.
    United States Court of Appeals, Fifth Circuit.
    March 15, 1974.
    Rehearing Denied May 9, 1974.
    Robert L. Dow, Lake Charles, La., William Mac Gann, Houston, Tex., for plaintiffs-appellants.

      Meredith T. Holt, Lake Charles, La., for defendants-appellees.
    Before BROWN, Chief Judge, and GEWIN and GOLDBERG, Circuit Judges.
   PER CURIAM:

On a clear August afternoon in 1971 Carey Green’s station wagon collided on 1-10 just outside of Welsh, Louisiana with Carr Truck Services’ pick-up truck. In a trial without a jury the District Judge in this diversity action found both parties negligent, thus denying recovery to the owner-drivers of each vehicle. Damages, however, were granted for the personal injuries of the passengers in plaintiff’s car. Finding no clearly erroneous rulings in this case, we affirm.

Carey Green and his family were riding west on this four-lane interstate highway on their way home to Houston. At 65 to 70 miles-per-hour their car was traveling beneath the maximum speed limit set for the road but too fast to avoid defendant’s pick-up repair truck when it pulled on the highway from the shoulder.

Up until minutes before the accident, Robert Andrepont, the operator of the pick-up, had been undertaking to tow a car parked on the roadside. The pick-up was stopped in front of the disabled car. Andrepont started his truck and turned directly onto the highway. Even though he saw the Green’s car approximately 300 feet behind him, he made little attempt to accelerate, shifting from first to third gears directly.

In his ruling the trial judge determined that there was obvious negligence on the part of Andrepont. But he concluded that Green was negligent, as well, because when he saw the parked car, Carey Green should have anticipated possible danger connected with that vehicle. As a matter of prudence, the trial judge found that Green “should have gone over into the other lane and his failure to do so constituted negligence which was a proximate cause of this accident.” It was a lack of visibility beyond or around the parked car that should have led the plaintiff to take precautionary, evasive measures. In fact, the trial judge concluded that Green should have seen the pick-up truck sooner.

The Louisiana Highway Regulatory Act LSA-R.S. 32:81 (A) places a burden of reasonable and prudent speed on the driver of a vehicle following another. Even though the “vehicle following” involved in this ease is a bit unusual because of its sudden occurrence, we think the Judge was entitled to conclude that plaintiff had breached Louisiana law requiring a following motorist to have his vehicle under control. Plaisance v. Maryland Casualty Company, La.App., 169 So.2d 695, 700.

While there is language in the oral decision rendered by the trial judge from the bench that might suggest other results, we are convinced that the ruling was based on the standard of reasonably prudent behavior required of all drivers which the plaintiff failed to meet in this case and was not, as claimed by plaintiff, an effort to create for Louisiana some new rule requiring a car to pull over to the left-hand lane whenever a vehicle is parked on the shoulder of a multi-lane highway.

Affirmed.


text:
    MIAMI HEALTH STUDIOS, INC., et al., Plaintiffs-Appellees, v. The CITY OF MIAMI BEACH etc., et al., Defendants-Appellants.
    No. 73-1485.
    United States Court of Appeals, Fifth Circuit.
    March 15, 1974.
    Rehearing Denied April 8, 1974.

      Leonard Rivkind, Miami Beach, Fla., for defendants-appellants.
    Paul F. Gerson, Miami Beach, Fla., for plaintiffs-appellees.
    Before WISDOM, AINSWORTH and GEE, Circuit Judges.
   PER CURIAM:

This suit was filed on December 5, 1972, by Miami Health Studios, Inc. and others against the City of Miami Beach, its Chief of Police and the State Attorney for Dade County, Florida, and as amended sought a declaratory judgment to have the district court hold unconstitutional Florida Statute 796.07 prohibiting prostitution, etc., including subsection (l)(b) thereof pertaining to the definition: “The term ‘lewdness’ shall be construed to include any indecent or obscene act.” Plaintiffs requested service of the complaint on the Governor and Attorney General of Florida, in their statutory capacities, as required by 28 U.S.C. § 2284(2). The complaint grew out of a number of arrests and criminal prosecutions filed in the Florida state courts against employees of plaintiff who were alleged to be engaged in indecent sexual activity for compensation with patrons of the plaintiff massage parlor. All of these pending state prosecutions were filed prior to the present suit. These Florida state criminal proceedings are pending and have been held in abeyance awaiting outcome of this suit.

Plaintiffs also requested a temporary restraining order against defendants, and the court set a hearing on the request for December 8, 1972, three days after the suit was filed. At the hearing a stipulation was made by the parties that the court’s ruling would be only on the facial constitutionality of the Florida statute. The request for injunction and damages was then withdrawn. Nevertheless, when the judgment was handed down, the district court not only-held the statute unconstitutional on its face, but also that defendants were guilty of bad faith harassment of plaintiffs.

Appellants deny the unconstitutionality of the Florida statute and strenuously urge that they were denied due process of law in a hearing which was held only three days after suit was filed and only two days after notice; that had the court not limited the scope of the ora! testimony by its statement that a ruling would be made only on the facial constitutionality of the statute, additional testimony and evidence would have been presented by them, especially on the issue of bad faith harassment.

Appellants contend that the record is inadequate to show all of the evidence which the court should consider in making a determination on the issue of bad faith harassment. They also contend that it was error for the court to deny the Attorney General and Governor of Florida an opportunity to be heard, and especially to deny the motion of the Attorney General to intervene under Rule 24, Fed.R.Civ.P., in these proceedings. The record does not indicate when the Governor and Attorney General were served with a copy of the complaint, but it does show that the motion of the Attorney General to intervene was filed on December 21, 1972 and denied by the court as “moot” as a part of the court’s final judgment on December 26, 1972.

In his motion to intervene the Attorney General of Florida alleged in part as follows:

II.
The constitutionality of certain sections of Chapter 796, supra, regarding prostitution, solicitation, etc., must be defended if at all by the Attorney General of the State of Florida since it is a State statute and the only means by which the State of Florida may control activity deemed harmful and deleterious to the public interest and welfare. See Section 16.01, supra.
III.
The obvious interest of the people of the State of Florida, by the [sic] through their Attorney General, lies in the undeniable fact that questions of law have already risen, are being and are likely to be amplified regarding prostitution, lewdness, assignation, solicitation, and enticement or procurement to commit prostitution, and the maintenance of places for the purpose of prostitution, lewdness or assignation. As a consequence thereof, the Attorney General of Florida seeking leave of this Court to intervene as a proper party is based upon the obligation of the Attorney General to resolve those questions with the aid of this Court in a manner consistent with law, good morals, and due process.

The circumstances and the acceleration of the abbreviated hearing held by the trial court indicate that a full hearing on the bad faith harassment issue is required. The Attorney General of Florida should have been permitted to intervene as he requested, and to be heard and participate. The parties must, therefore, have an opportunity to file responsive pleadings and to have a trial date set with reasonable notice. They should also have an opportunity to assert as a defense to the suit the possible abstention of the court without its passing on the alleged unconstitutionality of the Florida statute. Whether such unconstitutionality should be urged in the pending Florida state court criminal proceedings rather than in the federal court under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), must be fully considered.

The order of the district court herein, therefore, is vacated and, the ease remanded for further proceedings. Accordingly, we do not reach the issue of facial constitutionality of the Florida statute.

Vacated and remanded.

      . At that time the trial judge stated orally in open court, in pertinent part: But at this hearing all I am holding is that the statute as written on its face is vague, indefinite, and does not contain ascertainable standards of conduct by .which a person of ordinary intelligence would be aware of the fact he was violating the law.
      Will you prepare me a decree and send it to me, please?


author: GODBOLD, Circuit Judge:

text:
    George H. OWENS, Sr., doing business as American Contractors, Plaintiff-Appellee-Cross Appellant, v. CLOW CORPORATION et al., Defendants-Appellants-Cross Appellees.
    No. 73-2377.
    United States Court of Appeals, Fifth Circuit.
    March 15, 1974.

      Allen Poppleton, William M. Warren, Jr., Birmingham, Ala., for defendants-appellants.
    Harry Cole, Montgomery, Ala., for plaintiff-appellee.
    Before BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.
   GODBOLD, Circuit Judge:

Plaintiff Owens and others bid on the job of installing a plastic pipe water system for a small Alabama community. Several bidders including Owens received from defendant Clow written proposals to supply for the job the 143,500 feet of 6" pipe and 103,000 feet of 3" pipe that appeared to be required. Owens was low bidder and orally ordered from Clow for the job pipe of these two sizes. Clow sent Owens an invoice setting out the above quantities, and the prices, for the two sizes of pipe. Neither the proposal nor the invoice prescribed times for delivery. According to the testimony of Owens, in the telephone conversation in which he ordered the pipe it was agreed that Clow would deliver a truck load of pipe a day.

Clow satisfactorily delivered the 3" pipe as agreed but fell behind in delivering the 6" pipe in the manner described by Owens as having been orally agreed upon. Owens fell behind on the job and suffered delay-associated damages. Ultimately he terminated his arrangement with Clow and obtained pipe elsewhere at a higher price. Additionally, during the course of the job change orders were issued requiring Owens to lay more pipe of both sizes than the amounts specifically listed in Clow’s proposal.

Owens sued Clow and in a jury trial the jury found the issues in favor of Owens.

The major point on appeal arises from Clow’s insistence that under the Uniform Commercial Code as adopted in Alabama, Tit. 7A, Code of Alabama (Recompiled), the written documents—the proposal and Clow’s confirming invoice—created a contract enforceable only to the extent it had been performed by the parties, because the documents did not cover terms of delivery and delivery could not be the subject of a supplementary oral agreement. Tit. 7A, § 2-201(1) provides:

Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.

The Official Comment to § 2-201 says:

The changed phraseology of this section is intended to make it clear that:
1. The required writing need not contain all the material terms of the contract and such material terms as are stated need not be precisely stated. All that is required is that the writing afford a basis for believing that the offered oral evidence rests on a real transaction. It may be written in lead pencil on a scratch pad. It need not indicate which party is the buyer and which the seller. The only term which must appear is the quantity term which need not be accurately stated but recovery is limited to the amount stated. The price, time and place of payment or delivery, the general quality of the goods, or any particular warranties may all be omitted.
* * * * * *
Only three definite and invariable requirements as to the memorandum are made by this subsection. First, it must evidence a contract for the sale of goods; second, it must be “signed”, a word which includes any authentication which identifies the party to be charged; and third, it must specify a quantity.

It is implicit in Tit. 7A, § 2-309 that agreement concerning time of delivery is not a condition precedent to the existence of an enforceable contract. That section provides in pertinent part:

(1) The time for shipment or delivery or any other action under a contract if not provided in this article or agreed upon shall be a reasonable time.

The Official Comment states:

1. Subsection (1) requires that all actions taken under a sales contract must be taken within a reasonable time where no time has been agreed upon.
* -x- * * * *
4. When the time for delivery is left open, unreasonably early offers of or demands for delivery are intended to be read under this Article as expressions of desire or intention, requesting the assent or acquiescence of the other party, not as final positions which may amount without more to breach or to create breach by the other side.

Clow relies upon Artman v. International Harvester Co., 355 F.Supp. 482 (W.D.Pa.1973), which held that purchase order documents were insufficient to establish a written contract enforceable under the Pennsylvania equivalent of Alabama’s § 2-201. But the contract sought to be established concerned the alleged granting of an automotive truck sales franchise. The opinion distinguished this “complex on-going franchise relationship” from the simple sale of goods, which is the type of transaction involved in the present case.

Thus, Clow’s motion for directed verdict based on the nonenforceability of the contract was properly denied.

Clow makes an alternative argument, based on the last sentence of § 2-201(1), that if there was an agreement it was enforceable to only the extent of the quantities shown in Clow’s proposal and not for damages suffered by Owens from purchasing additional quantities of pipe required by change orders. This point was not raised by the motion for directed verdict or by objections to the jury instructions.

Clow’s proposal contained an exculpatory clause. But there was adequate evidence that the delays were not “beyond Clow’s reasonable control.” Indeed there was evidence that Clow did not have in its inventory enough 6" pipe to fill its orders, could not manufacture any more because of difficulty in producing pipe of that size free of defects, yet continued to accept orders for that size pipe while giving no notice to Owens and others of its inadequate supply.

When Clow failed to deliver 6" pipe as agreed, Owens terminated his dealings with Clow and purchased elsewhere and at higher prices all pipe required for the job. Clow theorizes that though Owens was free to buy elsewhere what he could not get in sufficient quantity from Clow, he was, as a matter of mitigation of damages, required to take from Clow at its lower price such 6" pipe as Clow could deliver. Clow’s motion for directed verdict raised the issue that Owens had failed to mitigate his damages in a reasonable manner. Whether it was reasonable for Owens to purchase elsewhere after his abortive arrangement with Clow had already caused him damaging delays was a classic jury issue. The court charged without objection:

I charge you that if you are reasonably satisfied from the evidence that defendant, Clow, entered into a contract or an agreement with Owens to furnish materials for the job in question and that Clow failed to furnish the materials as agreed or within a reasonable time, then Owens would be entitled to cancel the contract with Clow and purchase other materials from another supplier and set off the difference in cost against any amount which Owens owed Clow, provided such purchase or purchases was or were reasonably necessary and were made in good faith without any unreasonable delay.

The judgment of the District Court is affirmed.

      . In his complaint Owens acknowledged owing Clow a balance of $50,992.06 for pipe delivered prior to the termination. Clow counterclaimed for this amount. The jury verdict on the counterclaim was for Owens. The court entered judgment n/o/v on the counterclaim, from which Owens cross-appealed. This was a protective cross-appeal, and Owens does not claim, if the judgment in Ids favor on his claim is affirmed, that the judgment on the counterclaim should be reversed. Therefore, we need not decide the question of whether the cross-appeal was timely filed.

      . Even if the point had been preserved by motion there was evidence, and jury instructions not objected to, permitting the jury to return a verdict including damages arising from Owens’ purchase elsewhere of the change order pipe, on the basis that Glow’s proposal, accepted by Owens, was to supply all pipe necessary to complete the job. See also § 2-306(1) : “A term which measures the quantity by . the requirements of the buyer means such actual . . . requirements as may occur in good faith.”

      . “Clow shall not be hable for delay or default in delivery for any cause beyond Clow’s reasonable control including, but not limited to, government action, shortage of labor, raw materials, production or transportation facilities, labor difficulty, fire, flood or accident.”