author: J. JOSEPH SMITH, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Manuel GONZALEZ, Appellant.
    No. 319, Docket 73-1932.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 25, 1973.
    Decided Dec. 6, 1973.

      Alfred Lawrence Toombs, New York City (Michael P. Direnzo, New York City, of counsel), for appellant.
    Raymond J. Dearie, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty. E. D. N. Y., of counsel), for appellee.
    Before SMITH, FEINBERG and OAKES, Circuit Judges.
   J. JOSEPH SMITH, Circuit Judge:

Appellant Manuel Gonzalez was convicted after a trial by jury in the United States District Court for the Eastern District of New York, Mark A. Costanti-no, Judge, on one count of conspiracy and one count of smuggling cocaine into the United States, in violation of 21 U. S.C. § 952(a) and 18 U.S.C. § 2. We find error in the trial and reverse.

The principals of this case first came to the attention of the authorities when on October 7, 1972, Jose Valenzuela-Cor-rea, a sixty-three-year-old Chilean national, was searched following his arrival in the United States from Chile at John F. Kennedy International Airport in Queens, New York. He was found to have over four pounds of cocaine strapped to his legs. Correa agreed to cooperate with the authorities and stated that he was an intermediary between Mario Cerda, a business acquaintance of Correa’s in Santiago, and a Mr. Gonzalez, whose address was 1511 Westchester Avenue, Bronx, New York. Correa stated that Cerda had given him an envelope which Correa was to give to Gonzales along with the drugs. Upon inspection the letter was found to be a letter of introduction, referring to Correa as “the bearer of your order.” It also spoke of future orders but did not identify any of these “orders” as involving narcotics. The envelope also contained the halves of two different dollar bills cut in a zig-zag manner. Correa told customs officials that Cerda had instructed him not to deliver the drugs until he was shown the corresponding halves of the bills and that Cerda told him that Gonzalez would give him $300 in expense money at their initial meeting.

Correa’s subsequent meeting with appellant Gonzalez on the night of October 7, at a bar owned by Gonzalez at the Westchester Avenue address, was under surveillance by special agents. The officers observed Gonzalez greet Correa, look briefly at the letter Correa gave him, and walk to the rear of the bar where Gonzalez disappeared from view. A short time later, an agent who pretended to be using the bathroom saw appellant speaking with a black man and giving him a sum of money. Gonzalez then stood in the rear of the bar, apparently reading from a piece of paper. Appellant next returned to Correa and gave him the matching halves of the bills contained in the envelope. Correa testified that Gonzalez then advised him that an individual would pick up the cocaine the next day at Correa’s room in the Yonkers Motor Inn. Correa asked Gonzalez for the expense money, and Gonzalez gave him $300. The surveil-ling agents testified to all the above, except the conversation between Correa and Gonzalez.

The first arrest in this case was made when Bolivar Irizarry came to Correa’s room the next day. Irizarry showed Correa the same halves of the bills that Correa had given Gonzalez the day before and also presented to Correa a Yonkers Motor Inn card that Correa had given Gonzalez. When Irizarry began examining the cocaine, the special agents emerged from the bathroom and placed him under arrest. Appellant Gonzalez was arrested outside his bar later that day. Mario Cerda was named in the indictment as “John Doe, also known as Mario C.”

The defense claimed that Gonzalez believed the transaction involved shoes, not cocaine. Appellant testified in his own behalf that in February, 1972, he and Mario Mena Flores, a Chilean national-who frequented Gonzalez’ bar, had agreed to begin marketing in New York shoes which Flores made in Chile. Gonzalez and Flores further agreed that one Ricardo Gonzalez, apparently no relation of appellant’s, was to be a partner in the venture and that Flores would send a shipment of shoes to New York as a sample. Appellant testified that Ricardo Gonzalez told appellant one week before Correa’s arrival in New York that Flores would soon arrive in New York. Appellant contended that Correa introduced himself as being sent by “Mario,” whom appellant took to be Mario Flores, that appellant showed the letter Correa gave him to Ricardo Gonzalez when appellant went to the rear of the bar and that Ricardo Gonzalez gave appellant the two halves of the dollar bills, telling him that they belonged to Correa. Appellant also testified that he gave Correa’s motel card to Ricardo Gonzalez who said that he would pick up the shoes. Appellant denied having discussed narcotics with Correa and stated that he had not seen Ricardo Gonzalez since the night of October 7 although he had tried resourcefully to contact him.

There was an abundance of evidence to justify the jury’s decision that appellant was engaged in a narcotics transaction, not in a retail shoe venture, and indeed appellant does not challenge the sufficiency of the evidence on appeal. We upset the conviction with regret, but we are compelled to do so by errors affecting the fairness of the trial.

Appellant’s first claim on appeal is that the charge to the jury was so inconsistent and confusing as to require reversal. The objection concerns that portion of the charge relating to Correa’s testimony.

Correa, an accomplice witness against appellant, was clearly an important figure in the trial below. His motivation for testifying was an important factor in judging his credibility, and defense counsel questioned Correa about his motivation on cross-examination. Defense counsel seasonably requested that the trial judge charge substantially in the language of United States v. Padgent, 432 F.2d 701, 704 (2d Cir. 1970):

An accomplice’s testimony implicating a defendant as a perpetrator of a crime is inherently suspect for such a witness may well have an important personal stake in the outcome of the trial. An accomplice so testifying may believe that the defendant’s acquittal will vitiate expected rewards that may have been either explicitly or implicitly promised him in return for his plea of guilty and his testimony.

Instead, the trial judge charged:

A participant so testifying may believe the defendant’s acquittal will vitiate expected rewards that may have been explicitly or implicitly promised in return for his testimony, which is not true in this case.
This Court has made no promises to this defendant that testified in this case. I cannot say that too strongly. However, I must charge that to you.

A few sentences thereafter, the trial judge stated that “ . . . what I said about scrutinizing participants’ testimony with particular care and caution, and that goes to all witnesses. . . .” Defense counsel did not except to this portion of the charge when it was given.

Appellant contends that the charge was “incomprehensible” and “obviously confusing at best,” and that it constitutes “plain error,” citing United States v. Clark, 475 F.2d 240, 248-250 (2d Cir. 1973) and United States v. Fields, 466 F.2d 119, 120-121 (2d Cir. 1972). We must agree that the court’s dilution of the usual accomplice charge must have left the jury confused on the point.

Appellant’s second argument on appeal concerns the prosecutor’s summation. He objects to alleged misrepresentations of facts in evidence, the use of inflammatory epithets, and efforts to interject the prestige of the government and the prosecutor’s veracity in order to bolster the case.

The summation at issue contained a host of infirmities; we will not attempt to catalogue them. Among the most prejudicial of the misrepresentations was the prosecutor’s characterization of appellant as a “repeated junk dealer.” There was nothing in the evidence to support this statement. The prosecutor opined that “ . . . you have to be born yesterday to believe . . .” appellant’s defense, that appellant’s testimony “ . . . .is so riddled with lies that there is only one word that comes out of his testimony: guilty, guilty, guilty,” and that appellant was “. . . caught dead to rights . . . red-handed.” The prosecutor characterized appellant’s defense as a “pack of lies,” “an insult to your intelligence,” and “a concocted defense.” Furthermore, he made derogatory comments about appellant’s trial counsel’s successful objections to evidence.

This is consistent with a repeated pattern of misconduct by this prosecutor. See, United States v. Drummond, 481 F. 2d 62 (2d Cir. 1973); United States v. Miller, 478 F.2d 1315 (2d Cir. 1973); and United States v. Fernandez, 480 F. 2d 726, 741 (2d Cir. 1973). Moreover, these comments were unprovoked, and defense counsel objected several times to the summation. Most significantly, the remarks in question were neither trivial nor few. Compare United States v. White, 486 F.2d 204 (2d Cir. 1973).

While either of appellant’s arguments, concerning the charge and the summation, might be sufficient to reverse the decision below, the combination of the two requires that disposition. Of course, appellant is entitled only to a fair trial, not to a perfect trial. But we think that the confusion which the charge must have created coupled with the passion and the prejudice which the summation likely aroused raises grave doubts about the fairness of the proceeding below.

Appellant’s two remaining arguments are relevant to a new trial, and therefore merit discussion.

The first arises from the discrepancy between the affidavit upon which the search warrant was based and the testimony of the affiant, Agent Keefe, at the suppression hearing. Allegation six in the affidavit stated that Gonzalez was arrested “while in possession of a key to the above specified Safe Deposit Box,” i. e., the box which was the subject of the warrant. At the hearing, Keefe stated that when he took the key from Gonzalez he was not certain that it was a safe deposit box key, that he then investigated to determine whether Gonzalez had a safe deposit box at a bank near his bar, and that upon determining that Gonzalez did have such a box Keefe applied for the search warrant without first checking whether the key he obtained from Gonzalez actually did fit that box. Thus, when Keefe applied for the warrant, he did not actually know that the key did fit the box. As it turned out, the key did not fit the box which was searched.

Appellant asks us to hold the warrant invalid and to suppress the evidence seized as a result of the warrant under the rationale of a line of cases from other circuits. United States v. Morris, 477 F.2d 657 (5th Cir. 1973); United States v. Jones, 475 F.2d 723 (5th Cir. 1973); United States v. Upshaw, 448 F.2d 1218 (5th Cir. 1971), cert. denied, 405 U.S. 934, 92 S.Ct. 970, 30 L.Ed.2d 810 (1972); United States v. Harwood, 470 F.2d 322 (10th Cir. 1972) ; United States v. Roth, 391 F.2d 507 (7th Cir. 1967). These cases stand for the proposition that when the truthfulness of the facts underlying a warrant has become suspect, the warrant will be set aside and the evidence derived from it suppressed where there is a showing that the affiant has made a material and knowing misstatement in the affidavit.

Appellant also relies on Kipperman, Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence, 84 Harv.L.R. 825 (1971). Kipperman identifies five variables: the misstatement may be material or immaterial; it may be innocent, negligent, or deliberate. He suggests that proper application of Fourth Amendment values requires setting aside the warrant if it is based on purposeful misstatement regardless of the materiality of that statement, also setting it aside if the misstatement is both negligent and material, and upholding the warrant in other cases. The Seventh Circuit has recently adopted a rule quite similar to this test. United States v. Carmichael, 489 F.2d 983 (7th Cir. 1973) (en banc). Carmichael follows the Kipperman analysis except that it voids warrants where the misstatements are both recklessly untruthful and material, not when they are only negligently false and material.

Prior case law in this circuit speaks to this issue only in passing. In United States v. Bozza, 365 F.2d 206, 223-224 (2d Cir. 1966), the court appeared to say that a negligent misstatement would upset a warrant only if that misstatement was material. In United States v. Perry, 380 F.2d 356, 358 (2d Cir.), cert. denied, 389 U.S. 943, 88 S.Ct. 307, 19 L. Ed.2d 299 (1967), the court stated that it is sufficient support for a warrant that “ . . . the facts alleged by the informant, if true establish illegality and the affiant-agent has reasonable grounds for believing in the truth of the allegations.” In United States v. Suarez, 380 F.2d 713, 716 (2d Cir. 1967), the court stated in dicta that “[i]t may be that testimony at trial could so clearly demolish statements in an affidavit supporting a warrant, that a prior denial of a motion to suppress would be overruled.” In United States v. Sultan, 463 F.2d 1066, 1070 (2d Cir. 1972), the court suggested that a material and knowing misstatement would upset a warrant.

Whichever standard we apply here, the warrant must be upheld and the evidence admitted. Under the material misstatement test, a critical issue is materiality. Appellant points to Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), as authority for his position that the warrant would not have been issued absent the misstatement. In Henry, the Court held that probable cause did not exist where police who were investigating a theft from an interstate shipment of whiskey twice observed cartons being placed in a car in a residential district. Here, on the other hand, appellant was already under arrest for participating in a narcotics transaction and there was probable cause to search Gonzalez’ box whether the key fit or not. Moreover, the police in Henry acted without a warrant, whereas this search and seizure was conducted pursuant to a warrant. United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

Here, appellant’s use of the safe deposit box was determined by investigation. The connection between the deposit box and the narcotics transaction was inferred from expert experience and Gonzalez’ possession on the day of the transaction of a safe deposit box at a nearby bank and of a key which appeared to be a safe deposit box key. The evidence here, exclusive of the misstatement as to the key, was sufficient to establish probable cause. And since the misstatement was not material, the warrant survives the material misstatement test. The misstatement was at most a negligent misrepresentation. The warrant therefore survives the stricter test suggested by Kipperman op. cit. supra,.

The evidence derived from the warrant in question may properly be admitted.

Appellant’s final argument is that he should have been permitted to take the deposition of a foreign national pursuant to Fed.R.Crim. P. 15(a).

Shortly after his arraignment, appellant made a motion pursuant to Rule 15(a) to take the deposition abroad of “Mario Menna.” As noted, appellant has contended throughout that he, Ricardo Gonzalez and Mario Mena Flores were engaged in a retail shoe venture. In affidavits in support of his Rule 15(a) motion, appellant stated that “Menna” was Mario Mena Flores and that Flores was willing to be deposed but unwilling to travel to the United States to testify. Appellant’s affidavits further stated that Flores had told defense counsel in Chile that Flores and appellant were planning a retail shoe business, that Flores had given Correa a letter of introduction to appellant, but not the one that later was introduced at trial. Judge Costantino denied appellant’s motion, stating that Flores was not unable to attend trial or prevented from attending but that Flores was unwilling to attend because he did not want to expose himself to criminal liability since it was most probable that he was the co-defendant in this case “John Doe, also known as Mario C.”

While the court below probably acted within the scope of its discretion in denying the motion to depose, United States v. Soblen, 203 F.Supp. 542 (S.D. N.Y.1961), aff’d, 301 F.2d 236 (2d Cir.), cert. denied, 370 U.S. 944, 82 S.Ct. 1585, 8 L.Ed.2d 810 (1962), we believe the wiser course would have been to grant the motion. See, United States v. Hayutin, 398 F.2d 944, 954 (2d Cir.), cert. denied, 393 U.S. 961, 89 S.Ct. 400, 21 L. Ed.2d 374 (1968), and United States v. Bentvena, 319 F.2d 916, 941 (2d Cir.), cert. denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963). Although there was substantial evidence before the trial judge identifying Flores as the co-defendant and thus in a sense as a fugitive from justuee, we do not think that this fact is dispositive. Whatever value this type of “exculpation” has to the fugitive co-defendant, the defendant should not be deprived of testimony which would be available by deposition. The testimony of a fugutive from justice is rightly suspect, but not solely because of the lack of the perjury sanction. The jury is well able to weigh such testimony and in this case it might be better to let it be taken.

For the reasons expressed, we reverse and remand for new trial.

      . Irizarry pled guilty to conspiracy prior to trial.

      . Appellant contends on appeal that the trial judge improperly restricted his cross-examination of Correa with respect to Correa’s motivation, in violation of the rule as stated in United States v. Blackwood, 456 F.2d 526, 530 (2d Cir.), cert. denied, 409 U.S. 863, 93 S.Ct. 154, 34 L.Ed.2d 110 (1972). In light of our disposition of appellant’s argument concerning the charge, we need not address this point. We assume, however, that on any retrial the court will permit full exploration of Correa’s possible motives in testifying, without interrupting to say that the court has made no promises.

      . It is appropriate to note that the prosecutor who authored the summations in Fernandez, Miller, Drummond, and in the proceedings below is no longer with the criminal division of the United States Attorney’s Office of the Eastern District of New York,

      . Kipperman would apply his test to all search warrants whose underlying facts were challenged. Since a hearing was in fact held below on the existence of factual inaccuracies in the warrant, this case does not raise the question of when an evidentiary hearing must be had where the affidavit and warrant are valid on their face. See Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964) ; United States v. Sultan, 463 F.2d 1066 (2d Cir. 1972) ; and United States v. Dunnings, 425 F.2d 836 (2d Cir.), cert. denied, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412 (1970).

      . Rule 15(a) states in relevant part:
      If it appears that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that his testimony is material and that it is necessary to take Ms deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment or information may upon motion of a defendant and notice to the parties order that Ms testimony be taken by deposition and that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place.

      . The lack of an allegation in the record that Flores was unable to attend the trial and the identification of Flores as a “witness also joined herein as a defendant” in appellant’s motion papers both point to this conclusion. Indeed, at trial defense counsel admitted this identity.


source: Caselaw Access Project

author: MeWILLIAMS, Circuit Judge.

license: Public Domain

text:
    Donald Boyd JULANDER et al., Plaintiffs and Appellees, v. FORD MOTOR COMPANY, a corporation, Defendant and Appellant.
    No. 73-1392.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Oct. 17, 1973.
    Decided Dec. 13, 1973.

      Richard W. Giauque, Salt Lake City, Utah (Clifford L. Ashton, E. Scott Savage, Jean L. W, Barnard; Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah, Olsen & Chamberlain, Rich-field, Utah, of counsel, on the brief), for plaintiffs and appellees.
    Ray R. Christensen, Salt Lake City, Utah (Christensen, Gardiner, Jensen & Evans, Salt Lake City, Utah, on the brief), for defendant and appellant.
    Before HILL, MeWILLIAMS and BARRETT, Circuit Judges.
   MeWILLIAMS, Circuit Judge.

This is a diversity action for damages arising out of a two-car automobile collision which occurred on August 5, 1970, on U. S. Highway 89, just north of the town of Sevier in Sevier County, Utah. Mr. and Mrs. Don Julander and their four minor children were in one vehicle which was being driven by Don Julander in a southerly direction on Highway 89. David Surber, age nineteen, was driving the other vehicle involved in the collision, namely, a 1968 Ford Bronco, in a northerly direction on Highway 89. Just north of Sevier, Utah, the Ford Bronco crossed over the center line of the highway into the path of the Julan-der vehicle, and a head-on collision occurred which had disastrous results for the Julander family. Mrs. julander, who was approximately seven months pregnant, died as a result of injuries sustained in the collision. Mr. Julander and his four children were all injured in the accident, with several of the children sustaining severe injuries.

Don Julander and his four children brought an action for the wrongful death of Mrs. Julander, as well as for their own injuries, against the driver of the other ear, David Surber, and the latter’s father, who owned the Ford Bronco, and the Ford Motor Company, the manufacturer of the Bronco. Their claim against the Surbers was subsequently settled and the case came on for trial against the Ford Motor Company only.

The Julanders’ claim against Ford Motor Company was based on alleged negligence by Ford in its design, manufacture and assembly of the Bronco and, alternatively, their claim for relief was also based on the doctrine of strict products liability. Trial by jury resulted in a verdict awarding the Julanders $200,000 for the wrongful death of Mrs. Julander, and the additional sum of $215,995.26 for their own personal injuries. Ford now appeals the judgments thus entered on the jury’s verdicts. We reverse, as in our view the trial court committed error in the admission and exclusion of evidence which under the circumstances simply cannot in good conscience be classified as harmless error not affecting substantial rights of Ford. In view of the fact that our disposition of the matter necessitates a second trial, we shall consider matters other than the grounds upon which we reverse, since certain of them, at least, may well arise upon retrial.

The several grounds urged in this court by Ford as grounds for reversal are summarized as follows: (1) Insufficient evidence of (a) negligence on the part of Ford in its design, manufacture and assembly of the 1968 Ford Bronco or (b) that any negligence in design, if such there be, was a proximate cause of the collision in question; (2) error on the part of the trial court in submitting the case to the jury on an alternative theory of strict products liability; (3) the admission by the trial court over objection of evidence of other accidents involving Broncos, and in particular the admission into evidence of seven civil ■complaints filed by others against Ford; (4) the exclusion by the trial court of evidence sought to be introduced by Ford relating to its design, manufacture and assembly of the Bronco, and in this connection Ford particularly objects to the exclusion by the trial court of Ford’s offer of exhibit B; (5) improper final closing argument by counsel for the Ju-landers wherein he commented upon the damages issue, when counsel for Ford had made no reference to damages in his closing argument; and (6) excessive damages awarded by the jury for the wrongful death of Mrs. Julander. We shall first make brief comment upon certain of the above matters which we deem to be only peripheral.

Not knowing what the evidence concerning the damages flowing from the death of Mrs. Julander will be on retrial, and not knowing whether the jury on retrial will even find in favor of the Julanders, or, if the jury so finds, not knowing what their assessment of damages in connection with such wrongful death will be, we see no good purpose in here determining whether the jury’s award of $200,000 for the wrongful death of Mrs. Julander in the first trial of this matter finds support in the record. Accordingly, we decline to review this particular matter.

As concerns the claim by Ford of improper closing argument on the part of counsel for the Julanders, it is sufficient to note that in our view any error in this regard would under the circumstances be only harmless error not affecting the substantial rights of Ford. At the same time, we recognize the general rule that it is improper for counsel for a plaintiff to inject new matter in his final closing argument which should be limited to a rebuttal to defense counsel’s closing argument, and nothing more. For an annotation on this subject, see 93 A.L.R.2d 273 (1964). However, as was said in Thomson v. Boles, 123 F.2d 487 (8th Cir. 1941), cert. denied, 315 U.S. 804, 62 S.Ct. 632, 86 L. Ed. 1204 (1942), appellate courts should exercise great caution in setting aside a judgment because of remarks made by counsel in closing argument during a hotly contested ease, and even though the argument be improper, the judgment should not be disturbed unless it clearly appears that the remarks in question unduly aroused the sympathy of the jury and thereby influenced the verdict. In the instant case, the comment of counsel was, under the circumstances, improper, but such comment, in our view, was only harmless error and does not justify reversal.

Counsel for Ford also contends that the evidence was legally insufficient to carry the case to the jury on either a theory of negligent design or on the basis of strict products liability and that accordingly the judgments should be reversed and the cause remanded to the trial court with directions to dismiss. As a corollary of the argument Ford also contends that there was no evidence that any possible negligent design caused or contributed to the collision. With this argument we are not in accord. We shall first discuss the “negligent design” aspect of the case.

It was the plaintiffs’ theory of the case that Ford negligently designed the 1968 Bronco to the end that at certain speeds, depending upon the size and location of its load, the Bronco had a tendency to “oversteer.” “Oversteer,” according to several of the plaintiffs’ witnesses, means that “very slight changes of the steering wheel produce very sharp changes in the direction of the vehicle.” In this general connection, the testimony of David Surber, the driver of the Ford Bronco, should first be commented upon.

According to David Surber, just prior to the accident he was following a slow moving camper on Highway 89 just north of Sevier, Utah, and he determined to pass the camper. Pulling towards the center of the road, Surber testified that he saw the Julander vehicle, and another vehicle as well, approáehing from the opposite direction, and that he fully realized he could not pass the camper at this point on the highway and accordingly pulled back into his lane, directly behind the camper. Believing that he was too close to the camper, Sur-ber testified that he applied his brakes, “firmly,” but not in any sort of an emergency manner, and turned the steering wheel slightly to the right. Then, according to Surber, the Bronco veered sharply to the right, and when he turned the steering wheel back to the left, the rear end of the Bronco “fishtailed” and he veered across the center of the road into the path of the oncoming vehicle driven by Don Julander. Surber testified that just prior to applying his brakes he was going approximately forty-five to fifty miles per hour. At the time David Surber was driving by hims'elf from California to Colorado and was carrying fishing and camping gear for himself and his parents, who were to join him later in Gunnison, Colorado. The fishing and camping gear were in the back of the vehicle and were estimated by several witnesses as weighing two hundred pounds.

Back to plaintiffs’ theory of the ease. It was their belief that the 1968 Ford Bronco was “oversteered” because of a combination of factors. In this regard it was contended that the Bronco has a relatively high center of gravity, a solid front axle, rather than independent front suspension, and a very short wheel base, all of which resulted in “oversteer” when driven at a speed of more than forty-five miles per hour with a load concentrated in the rear end of the vehicle.

Our study of the record leads us to conclude that there is sufficient evidence to carry the case to the jury on the question as to whether Ford was guilty of a negligent design of its 1968 Bronco. In thus concluding, although there be other evidence on this issue, we would particularly point to the expert testimony of Kenneth Feder and Dr. Michael Kaplan, and plaintiffs’-exhibit 31, all of which in our view require submission of the question of negligent design to the jury.

Feder was the general manager and owner of an “auto rescue” service. He examined the Surber Bronco after the accident and otherwise had a rather extensive experience with the Bronco car. Based on his examination of the Surber Bronco, Feder testified that he found no evidence of any mechanical malfunction that contributed to the accident and that the vehicle was “functioning as intended by design.” However, this witness went on to testify that in his opinion the Bronco had a tendency to oversteer under certain circumstances and he explained in detail the basis for his opinion.

Similarly, Dr. Kaplan testified at length regarding what he felt was a defective design of the Bronco resulting in a dangerous handling characteristic. Dr. Kaplan was a college professor of Engineering Mechanics and Mechanical Engineering and had done extensive work, both by way of research as well as by way of practical experience, on highway safety in general and on the Bronco in particular.

As concerns plaintiffs’ exhibit 31, Ford produced upon request the written results of a so-called “jury evaluation report” prepared in connection with test rides made by Ford of the Bronco in January 1965, which was shortly before the Bronco was itself placed on the market. Upon trial, the plaintiffs called as an adverse witness for cross-examination one Richard Vogh, who was the supervisor of the evaluation section of the light truck division of Ford, and as a part of their cross-examination of this witness introduced, without objection, the aforesaid exhibit 31.

According to Yogh, the Bronco was tested by various of Ford’s employees in January 1965, each of whom would then rate the Bronco’s performance on a 10 point scale, a rating of 7 to 10 being “acceptable,” a rating of 5 and 6 being “borderline acceptable,” and 1 to 4 being “unacceptable.” Such tests were not only made on the Bronco, but were also run on similar vehicles sold by Ford’s competitors as well as Ford’s own F-100 series truck. According to exhibit 31, which was a compilation of the results of this testing, the Bronco rated 7 or above in all categories other than “handling,” where it was rated below 7 and therefor was in only the “borderline acceptable” category. And as relates to directional stability and handling, the Bronco tested below all other vehicles thus tested. Needless to say, counsel for the Julanders placed considerable emphasis on exhibit 31. More will be said later about exhibit 31 in connection with the rejection by the trial court of Ford’s exhibit B. It is sufficient to say here without further lengthening this opinion that the testimony of the experts Feder and Kaplan, coupled with exhibit 31, was sufficient to warrant, and indeed require, submission to the jury of the issue of negligent design. And on the same basis the issue of causation was also a jury question.

As indicated, the trial court also submitted the case to the jury on the basis of strict products liability and Ford asserts that such was in error. In this regard, it is Ford’s position that Utah has not as yet adopted the doctrine of strict products liability and that accordingly it was improper for the trial court to instruct the jury on such. We disagree.

It is quite true that the Utah Supreme Court has not yet decided whether there is in Utah strict liability in tort for defective products. See Perkins v. Fit-Well Artificial Limb Co., 30 Utah 2d 151, 514 P.2d 811 (Oct. 4, 1973). However, in such circumstance a federal trial court must determine for itself what result would probably be reached were the question to be litigated in a state court, and in making its determination the federal court may look to all resources, including decisions of other states, as well as the resident state, federal decisions, and the general weight and trend of authority. Cottonwood Mall Shopping Center, Inc. v. Utah Power & Light Co., 440 F.2d 36 (10th Cir. 1971), cert. denied, 404 U.S. 857, 92 S. Ct. 107, 30 L.Ed.2d 99 (1971). And once a federal trial court has made its determination, we, as the reviewing court, are entitled to lean on the judgment of the federal trial judge as being knowledgeable and persuasive in the determination of the law of his resident state and his resolution of the matter should not be disturbed by us unless clearly erroneous. Binkley v. Manufacturers Life Insurance Co., 471 F.2d 889 (10th Cir. 1973), cert. denied, 414 U.S. 877, 94 S.Ct. 130, 38 L.Ed.2d 122 (Oct. 9, 1973), and Vaughn v. Chrysler Corporation, 442 F.2d 619 (10th Cir. 1971), cert. denied, 404 U.S. 857, 92 S.Ct. 106, 30 L.Ed.2d 98 (1971).

Under the authorities above cited, we defer to the trial court’s determination that the doctrine of strict products liability applies in Utah. In this same connection, Ford additionally claims that even if the doctrine of strict products liability applies in Utah, such doctrine applies only to the user or consumer, and should not be extended to a bystander, such as the Julanders, and that in any event the doctrine does not apply in a case of alleged negligent design. Again, we defer to the trial court’s judgment on the matter. Certainly there is respectable authority that the doctrine does apply to one situated as were the Julanders and that the doctrine is not rendered inoperative in a negligent design case.

In its discussion of strict products liability, the Restatement (Second) of Torts § 402A takes no position on the questions of either bystander recovery or of application of the doctrine to design defects. However, affirmative answers to both questions by the California Supreme Court, which fathered the products liability doctrine, as well as similar recent decisions in other cir-cuís, impress us as being persuasive of that doctrine’s post-Restatement evolution.

In connection with the application of the doctrine to a bystander, see such cases as Passwaters v. General Motors Corp., 454 F.2d 1270 (8th Cir. 1972); Wasik v. Borg, 423 F.2d 44 (2d Cir. 1970); and Elmore v. American Motors Corp., 70 Cal.2d 578, 75 Cal.Rptr. 652, 451 P.2d 84 (1969). For an annotation on this particular subject, see 33 A.L.R. 3d 415 (1970).

As concerns the application of the doctrine of strict liability to design defects, see such cases as Runnings v. Ford Motor Company, 461 F.2d 1145 (9th Cir. 1972); Werth v. Clark Equipment Co., 457 F.2d 1262 (9th Cir. 1966), cert. denied, 409 U.S. 876, 93 S.Ct. 127, 34 L.Ed.2d 129 (1972), and Pike v. Frank G. Hough Co., 2 Cal.3d 465, 85 Cal.Rptr. 629, 467 P.2d 229 (1970).

We now come to those matters which in our view necessitate reversal. As mentioned above, the Julanders as a part of their case called as an adverse witness Richard Vogh, the supervisor of the evaluation section of the light truck division of Ford. During their cross-examination of Vogh, counsel for the Ju-landers inquired as to whether he (Vogh) was aware of any “legal or written complaints by users of Broncos about steering problems.” Vogh replied that he was not. Counsel next inquired as to whether Vogh knew that “numerous legal actions are on the file against Ford.” Objection to that question was sustained, whereupon counsel for the Ju-landers offered copies of seven complaints filed in various courts around the country against Ford, all actions being based on steering problems of one sort or another with the Bronco. These complaints had been produced by Ford in pre-trial discovery proceedings. Over vigorous objection, the trial court admitted into evidence these seven complaints on the grounds that such constituted notice to Ford of steering problems with its Bronco.

In this court the Julanders would sustain the action of the trial court in admitting these seven complaints not only on the ground that such constituted notice to Ford, but also on the ground that such constituted impeachment of the witness Vogh, and was additionally admissible as tending to show negligent design. And in any event, says counsel, any possible error in the admission of these seven complaints was only harmless error. In our view of the matter, the trial court erred in the admission of the seven complaints and this error, particularly when coupled with the trial court’s erroneous rejection of Ford’s exhibit B, which will be developed shortly, simply cannot be brushed off as harmless error.

Before considering the various grounds upon which it is here argued that the seven complaints were properly received in evidence, we should first examine the complaints in a bit of detail. These seven complaints, which collectively constituted plaintiffs’ exhibit 32, were copies of complaints setting forth causes of actions against Ford for injuries sustained as a result of alleged steering problems of one sort or another with a Bronco. The allegations in the seven complaints were understandably couched in general language to the end that it is difficult to tell whether the precise problem encountered by the seven complainants was the same as that claimed to have been encountered by Surber. However, all did pertain to a steering or braking problem.

There is nothing in the record to indicate when Ford was served or otherwise received notice of any of these seven actions. However, the record does indicate that two of the actions were filed before the date of the accident here in question, namely, August 5, 1970, the most recent of the two having been filed on July 20, 1970, only about two weeks before the Julander accident. The record fails to reveal when two of the remaining five actions were filed, and the record affirmatively indicates that the remaining three actions were filed after the Julander accident. As indicated, the actions were brought all over the country, from Tennessee to California.

The trial court admitted exhibit 32 on the grounds that such constituted notice to Ford. Generally, where negligence is in issue, prior complaints to a defendant concerning an allegedly hazardous condition are admitted as being probative of the defendant’s knowledge. This knowledge, in turn, then operates as a standard against which can be tested the reasonableness of the defendant’s conduct with regard to the allegedly hazardous condition. See New York Life Ins. Co. v. Seighman, 140 F.2d 930 (6th Cir. 1944).

Assuming, then, that evidence concerning notice was otherwise germane to the issues raised in this case, it would seem that to be admissible the notice to Ford must have been given prior to the date of the Julander accident (August 5, 1970), and sufficiently so, to the end that Ford could have taken steps to remedy the situation. Here, the record fails to disclose when Ford was served with, or otherwise notified of, any of the seven complaints. Though two of the actions were filed prior to August 5, 1970, three were not filed until well after the date of the Julander accident, and the record does not disclose when the remaining two actions were brought. Without belaboring what we deem to be the obvious, the admission of exhibit 32 simply cannot be upheld on the basis of a “notice” theory, because such did not constitute prior notice. See Ozark Air Lines, Inc. v. Lari-mer, 352 F.2d 9 (8th Cir. 1965), where in a slip and fall case while boarding an airplane, it was held to be prejudicial error to admit testimony of a fall occurring on a subsequent date to another person while boarding defendant’s airplane.

In the trial court, counsel for the Ju-landers never got the opportunity to state the grounds upon which he offered exhibit 32. In this court, counsel, in addition to adopting the grounds upon which the trial court admitted the exhibit, urges two alternative grounds. In this regard, counsel suggests that the exhibit was admissible as tending to impeach the testimony of Vogh. The record does not support such contention. Vogh, both before and after the admission of exhibit 32, testified that he, through personal knowledge or by hearsay, knew nothing at all about the various complaints contained in exhibit 32, and there is absolutely no evidence which in anywise disputes his testimony in this regard. Accordingly, exhibit 32 in itself nowise contradicts or impeaches Vogh’s testimony.

Counsel also suggests that exhibit 32 is itself probative evidence of negligent design on the part of Ford in its design of the 1968 Bronco. Evidence of “other accidents” is sometimes admissible to prove primary negligence, but such evidence should be carefully examined before being received to the end that the circumstances of the “other accident” bear similarity to the circumstances surrounding the accident which is the subject matter then on trial. Prashker v. Beech Aircraft Corporation, 258 F.2d 602 (3d Cir. 1958). Such evidence in the instant case is singularly lacking. In sum, the admission of exhibit 32 was erroneous and we shall discuss later the further contention by counsel that any error in this regard was harmless. We shall next discuss the exclusion by the trial court of Ford’s exhibit B.

As a part of pre-trial discovery, the Julanders took the deposition of Vogh in Detroit, Michigan, some eleven months prior to the trial of the ease. At that time, counsel asked Vogh to produce certain documents of Ford relating to the Bronco and it was in this setting that Vogh produced the report which upon trial was introduced as plaintiffs’ exhibit 31. As referred to above, exhibit 31 indicated that when tested in January 1965 the Bronco was given by Ford itself a “borderline acceptable” rating as to handling and directional stability.

At the time of the taking of this deposition, counsel inquired as to whether Vogh knew of any other reports concerning the testing of the Bronco before it was placed on the market. Vogh said he knew of no such further testing or a report thereof, whereupon counsel asked that Vogh make a further search to see if there were any subsequent reports of a similar nature. Thereafter, Vogh discovered a further report of testing conducted in June 1965 in a file cabinet of one of his subordinates. Vogh did testify that subsequent to the January testing certain modifications had been made and in the June testing, according to the report, the Bronco received a much more favorable rating when tested as to handling and directional stability. Counsel for Ford immediately advised counsel for the Julanders of the existence of this subsequent report and furnished counsel with a copy of the same, some ten months prior to trial. Upon trial, counsel for the Julanders indicated that he had in fact not received this second report. However, this breakdown in communication between counsel, if such it be, was not the basis for the trial court’s refusal of the offer of the report concerning the tests conducted in June 1965, which document upon trial was, as indicated, marked as Ford’s tendered exhibit B. Accordingly, any refusal to admit Ford’s exhibit B cannot be upheld upon the basis of a misunderstanding between counsel.

As concerns exhibit B, Vogh testified that he did not personally conduct any of the testing the results of which were set forth in the exhibit. However, according to Vogh, exhibit B came from the files of one of his subordinates, a project engineer, who was under his (Vogh’s) supervision and control, and Vogh further testified that the subordinate’s duties included testing of the type recorded on the report. Vogh explained that Ford had no central filing system, as such, which accounted for the project engineer maintaining his own files. Exhibit B was on a company form which, again according to Vogh, was customarily used to record the results of evaluation testing, and the form itself was one in use in June 1965. Vogh went on to testify that Ford had a policy of destroying such reports three years after their date of compilation, and that it was only by accident that exhibit B was still in existence, it being more than three years old. All of which, we note, was equally true with regard to plaintiffs’ exhibit 31.

Ford sought to introduce exhibit B on the ground that it was a record made in the ordinary course of business and therefore admissible under 28 U.S. C. § 1732(a) as an exception to the hearsay rule. In ruling on the admissibility of exhibit B, the trial court candidly conceded that it was not entirely “clear about the matter,” but nonetheless denied the offer on the ground that the report couldn’t have been kept in the usual course of business since, under company policy, it should have been destroyed because it was more than three years old and had been preserved only by accident. In other words, the basis for the trial court’s refusal to permit the introduction into evidence of Ford’s exhibit B was that by company rule it should have been destroyed, and by accident it was not; ergo, the record could not have been kept in the ordinary course of business, as in the ordinary course of business it would have been destroyed. This reasoning does not appeal to us and no case has been drawn to our attention which supports it.

In Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), the Supreme Court declared that the provisions of 28 U.S.C. § 1732(a) should be given a liberal interpretation to the end that the “anachronistic rules” which gave rise to its need should be done away with. In United States v. Re, 336 F.2d 306 (2d Cir. 1964), cert. denied, 379 U.S. 904, 85 S.Ct. 188, 189, 13 L.Ed.2d 177 (1964), it was observed that the theory behind 28 U.S.C. § 1732(a) is to avoid the need of producing the person who actually participated in the transaction. Hence, the fact that Yogh himself did not participate in the testing conducted in June 1965, and the recording of the results of such testing, is not in itself reason to reject the offer of exhibit B.

To the same effect as Re, see Sabatino v. Curtiss National Bank of Miami Springs, 415 F.2d 632 (5th Cir. 1969), cert. denied, 396 U.S. 1057, 90 S.Ct. 750, 759, 24 L.Ed.2d 752 (1970), where it was held that 28 U.S.C. § 1732(a) does not require that the foundation testimony come from one who himself kept the records or had supervision over them. In Sabatino, it was also observed that federal rules and practice favor the admission of evidence, rather than its exclusion, if the proffered evidence has any probative value at all. The probative value of exhibit B is at once apparent to all, not only for its own intrinsic probative value but also because the exhibit tends to soften and ameliorate the devastating impact of plaintiffs’ exhibit 31, which for obvious reasons was relied on most heavily by the Julanders in their effort to convince the jury that Ford had foisted on the general public a vehicle whose handling and directional stability qualities were borderline, at best. As noted above, plaintiffs’ exhibit 31 also came from the files of Ford and it too was more than three years old. Suffice it to say, the trial court erred in refusing to admit into evidence exhibit B on the grounds that under company policy it should have been destroyed, and only by accident had survived the shredder.

Counsel for the Julanders alternatively argues that, even if the trial court erred in admitting exhibit 32 and in rejecting exhibit B, the error was only harmless error not affecting any substantial right of Ford. We agree that if this error be deemed harmless error, then under 28 U.S.C. § 2111 and Fed.R.Civ.P. 61 we should not disturb the judgment. And we are further aware that appellate courts have been more quick to find harmless error in the case of the erroneous admission or exclusion of evidence than in other areas. Our search reveals that the test for determining the existence of harmless error, or no, is neither easy to state nor easy to apply, and in the last analysis such resolution generally depends upon the facts and circumstances of the case at hand. For background material on this matter, see Wright and Miller, Federal Practice and Procedure § 2881.

In our considered view, the error in the instant case cannot be glossed over by labeling it as only harmless error. The fact that seven others had brought suit against Ford over the Bronco was of course damaging to Ford. And in this regard counsel in closing argument advised the jury that they had only seen the “tip of the iceberg.” Similarly, exhibit B was an important piece of evidence from the standpoint of Ford. It shows that when tested in June 1965 the Bronco as concerns handling and steering tested 8 on the scale of 10, well within the “acceptable” category, and higher incidentally than three of its competitors. Additionally, exhibit B tended to neutralize the impact of exhibit 31, which the Julanders relied on so much. This error was not harmless, and therefore we have no choice but to reverse.

We of course know not what the evidence will be on retrial. So, recognizing that the evidence on retrial may not be the same as adduced upon the first trial of this matter, we reverse, and remand with directions that the retrial of this case be consonant with the views herein expressed.

Judgment reversed.

      . Greenman v. Yuba Power Products Co., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1962).


author: ELY, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Edgar CHRISTOPHER, Jr., and Tommy Gene Everidge, Appellants.
    No. 73-2101.
    United States Court of Appeals, Ninth Circuit.
    Nov. 12, 1973.
    Rehearing Denied Dec. 12, 1973.

      Rubin Salter, Jr. (argued) of Kipps & Salter, Richard E. Bailey (argued), Tucson, Ariz., for appellants.
    Wm. C. Smitherman, U. S. Atty., Daniel G. Knauss, Gerald S. Frank, Asst. U. S. Attys. (argued), Tucson, Ariz., for appellee.
   OPINION

Before ALDRICH ELY and CHOY, Circuit Judges.

ELY, Circuit Judge:

Appellants Christopher and Everidge were convicted by a jury of knowing possession of heroin with the intent to distribute it and of the intentional distribution of the drug in violation of 21 U.S.C. § 841(a)(1). The convictions were based on three separate sales of heroin to a government narcotics agent. Both appellants now appeal on the ground that the District Court erred in refusing to instruct the jury on the defense of entrapment. Christopher appeals on three additional grounds: (1) the prosecution failed to establish a continuous chain of custody linking the heroin to him, (2) the conflicting interests of the defendants entitled Christopher to a separate attorney, and (3) counsel was incompetent.

The testimony established that Christopher was approached by an undercover agent who had information that Christopher was selling heroin. The agent asked Christopher if he, the agent, could purchase an ounce of heroin, and Christopher replied he would sell him an ounce for $900. The next day delivery was made to the agent by Christopher, and Christopher advised the agent he could handle any quantity of pure heroin needed by the agent. The two discussed the possibility of future sales. Approximately a week later, Christopher and the agent met with Everidge, and the agent bought an ounce and a half of heroin that Everidge had brought to the meeting. Everidge, Christopher, and the agent then discussed a future sale of a pound of pure heroin. For several weeks the agent kept in contact with the appellants to find out when the pound of heroin would be ready for purchase. Although at one point Everidge informed the agent that eight ounces were ready for sale, the agent told him that he preferred to buy the whole pound of heroin at one time. Subsequently, Christopher called the agent and informed him that he had three ounces of heroin for sale. The agent then met with Christopher and Everidge, who brought the heroin to the meeting. Shortly after the heroin had been weighed the arrest was made.

The appellants argue that they were entitled to a jury instruction on the issue of entrapment, because cross-examination of the agent at trial established that the agent, and not the defendants, initiated the contact for the sale of heroin. The appellants’ theory is that any evidence, however slight, which places in issue the appellants’ willingness to commit the crime, requires an instruction on entrapment be given to the jury. United States v. Henry, 417 F.2d 267, 269 (2d Cir. 1969); Notaro v. United States, 363 F.2d 169, 174-175 (9th Cir. 1966). However, in this case there is not a scintilla of evidence tending to show entrapment, i. e., that the appellants were unwilling to commit the crime or that the Government’s deception planted the criminal design in the minds of the defendants. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Ortega v. United States, 348 F.2d 874, 876 (9th Cir. 1965). The lone fact that the government’s agent, posing as a buyer, initially contacted the appellants is evidence only that the Government furnished the opportunity for the commission of a crime. The slight testimony which we have held allows the issue of entrapment to go to the jury must still constitute some evidence of inducement or persuasion by the Government. Since we find there was no evidence of entrapment in this case, we need not reach the Government’s alternative grounds to deny the entrapment instruction.

Christopher argues that the exhibits of heroin were erroneously admitted at trial. He contends that a continuous chain of custody linking himself to the heroin was not proved. This contention is also without merit. The exhibits were initialed by the agent at the time he received them, sent by registered mail to a government laboratory, and received and analyzed by a government chemist who also marked the exhibits. Both the agent and the chemist identified the exhibits and testified as to the standard procedures followed by the laboratory. The chemist testified that no one tampered with the evidence. Finally, and of most importance, is the fact that defense counsel did not object to the introduction of the exhibits.

Christopher also contends that there was such a conflict of interest between the defense counsel’s two clients that he is entitled to a new trial. He argues that the trial court’s failure to advise the co-defendants that they had a right to separate counsel and to inquiry into the possibility of a conflict of interest deprived him of effective assistance of counsel. In both of the cases cited by Christopher, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and Campbell v. United States, 122 U.S.App.D.C. 143, 352 F.2d 359 (1965), a conflict of interest was clearly reflected in the record. Here, however, there is no showing that the defense was in any way impaired or prejudiced by the joint representation. This court has previously held that failure of a trial court to advise co-defendants that they have a right to separate counsel, absent a showing in the record of conflicting interests, is not reversible error. United States v. Nystrom, 447 F.2d 1350 (9th Cir. 1971); United States v. Payne, 474 F.2d 603 (9th Cir. 1973).

Nor does the record now before us reveal that defense counsel at trial was so incompetent that the trial was reduced to such a mockery that Christopher was deprived of his Sixth Amendment rights. United States v. Valenzuela-Mendoza, 452 F.2d 773 (9th Cir. 1971) ; Murgia v. United States, 448 F.2d 1275 (9th Cir. 1971).

Affirmed.

       Honorable Bailey Aldrich, Senior United States Circuit Judge, Boston, Massachusetts, sitting by designation.

      . In Notaro v. United States, 363 F.2d 169, 174-175 (9th Cir. 1966) we stated that once “the issue of entrapment has fairly arisen” the defendant has met whatever burden rests on him. We further stated that that burden was insignificant, in that “if the defense of entrapment is claimed, a showing, however presented, that the commission of the offense was attended by the intervention of a government agent is sufficient.” Id. at note 6. This language, written by the author of the present opinion, cannot be literally applied. The issue of entrapment has not arisen if government agents have merely attempted' to make a contact for a “buy.” The Government cannot be expected to wait for a call from narcotics dealers. Despite the broad language of the Notaro footnote, the evidence of government intervention which requires a jury instruction on entrapment must tend to show that the crime may have been induced by the Government.
      A copy of this note, repudiating the literal language of footnote 6 in Notaro, has been submitted to all of the active judges of the court, and none has voiced objection thereto.


author: PER CURIAM: TUTTLE, Senior Circuit Judge, with whom GOLDBERG and GODBOLD, Circuit Judges,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Justo FARIAS, Defendant-Appellant.
    Nos. 71-2814, 71-2886.
    United States Court of Appeals, Fifth Circuit.
    Jan. 25, 1974.
    Samuel S. Forman, Miami, Fla. (Court-appointed), for defendant-appellant.
    Robert W. Rust, U. S. Atty., George A. Kokus, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before BROWN, Chief Judge, TUT-TLE, Senior Circuit Judge, and WISDOM, GEWIN, BELL, THORNBER-RY, COLEMAN, GOLDBERG, AINS-WORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.
   PER CURIAM:

First appearing before a panel of this Court on appeal from denial below of a F.R.Crim.P. 32(d) motion to withdraw a guilty plea, this case was affirmed in light of our earlier decision in Trujillo v. United States, 5 Cir., 1967, 377 F.2d 266, cert. denied, 389 U.S. 899, 88 S.Ct. 224, 19 L.Ed.2d 221. The Court, however, sua sponte took the case en banc to determine whether Trujillo should any longer be followed in its holding that the ineligibility for parole of one convicted of certain narcotics crimes is not a “consequence of a plea of guilty,” F.R.Crim. P. 11, so that on a guilty plea proceeding the sentencing Judge need not expressly advise the defendant accordingly.

Since that time two significant things have occurred. First is the enactment of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.A. § 801 et seq., which, for certain offenses occurring after its effective date of May 1, 1971, not only does it permit, it mandates a special parole term, 21 U.S.C.A. § 960(b) and likewise, in carefully defined instances, it provides for nrobated sentences and the expunging of all criminal records. Second, although for a pre-1971 offense the Court must sentence under the prior law which forbids probation/parole, United States v. Bradley, 1973, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528, we have now joined others in holding that such a pre-1971 defendant is eligible for consideration of parole by the Parole Board, Amaya v. United States, 5 Cir., 1973, 486 F.2d 940 [1973].

Considering that the relief of federal courts may not be invoked absent some prejudice to substantial rights, F.R.Crim.P. 52(a), it is evident that Farias cannot successfully show that — whatever error might be assumed to have occurred at his sentencing — he sustained any real harm. He is eligible for consideration for parole. Indeed, he is no worse off by virtue of these subsequent events than he would have been had the sentencing Judge advised him that he was not eligible for such leniency.

Because we conclude that subsequent events have eliminated the entire risk of any real harm being sustained by Farias the judgment of the trial court is

Affirmed.

TUTTLE, Senior Circuit Judge, with whom GOLDBERG and GODBOLD, Circuit Judges,

join, dissenting:

With deference to the views of my colleagues, I dissent from the affirmance by the court en banc of the judgment of the trial court denying a motion to withdraw a guilty plea on the ground that the trial court, in complying with Rule 11 F.R.Cr.P., did not inform the defendant that under the federal narcotics laws, which he was charged with violating, he would not be eligible for parole.

This case was put en banc sua sponté following the decision by the panel of the court, see United States of America v. Farias, 5 Cir., 1972, 459 F.2d 738. In the original opinion of the court, with one judge dissenting from the quoted language, we said:

“As we have indicated above, this court is bound by the decision in Trujillo, which ruling can be modified only by an en banc decision of the court. While we agree with what was said in both Sanchez and Spradley that we think the prevailing view is the better, we conclude that we must affirm the judgment of the trial court based on the Trujillo decision.”

The quoted language was based upon two prior decisions by other panels of this court. In Sanchez v. United States, 5 Cir., 1967, 417 F.2d 494, we said:

“Were the question of parole ineligibility before this Court for the first time, the considerable appeal of these recent decisions [of other circuits] might persuade us to a like position. However, in Trujillo v. United States, supra, and by implication in Dorrough v. United States, 5 Cir., 1967, 385 F.2d 887, 897, cert. denied, 1969, 394 U. S. 1019, 89 S.Ct. 1637, 23 L.Ed.2d 44, this Court rejected the argument that parole ineligibility is a consequence of a guilty plea within the meaning of Rule 11. We are bound by that result ff

We also referred to the case of Spradley v. United States, 5 Cir., 1970, 421 F.2d 1043.

A third panel, of this court said in Spradley:

“The language and reasoning used by this court in .Sanchez, supra, strongly suggests that the Sanchez panel did not consider Trujillo the better view, however binding.”

The court then, after pointing out differences in the circumstances affecting the Spradley case, stated:

“We conclude that the rule announced by this court in Trujillo ought not to be extended beyond the bare facts of that ease.”

In the panel decision here the court pointed out that since the decision in the Spradley case additional courts of appeals in other circuits had taken their stand in opposition to our Trujillo case, citing Bye v. United States, 2 Cir., 1970, 435 F.2d 177, and Harris v. United States, 6 Cir., 426 F.2d 99, and the court said:

“Thus it is that this court and the Court of Appeals for the District of Columbia appear to be the only two of the nine circuits that have adhered to our view of this particular issue, the other seven aligning themselves with the view that the failure of the trial court to tell a defendant tendering a guilty plea of his ineligibility for parole amounts to a failure adequately to tell him of the ‘consequences’ of the plea.”

I am convinced that the court, sitting en banc, should now reconsider and reverse our earlier holding in the Trujillo case. It would seem that there is little profit in attempting to discuss whether the failure to tell a prospective guilty pleader that he will not be eligible for parole in a particular matter for which he is charged is a “consequence” of his plea, or is a “consequence of the withholding of legislative grace,” the ground upon which Trujillo was based.

As stated in Bye v. United States, supra:

“It is therefore of no moment that parole generally can be characterized as a legislative grace, and that ineligibility of parole for narcotics offenders could be classified as the withholding of a legislative grace [footnote omitted]. See Smith v. United States, supra, [116 U.S.App.D.C. 404] 324 F.2d [436] at 441. Rule 11 is not concerned with the legislative genesis of the ineligibility for parole, but with the extent to which ineligibility for parole could influence an accused’s decision whether to plead guilty.”

I apprehend that a majority of the court, if it considered the issue were now before the court with the same potential for injury to Farias as appeared to be the situation when the case was put en banc, would agree that there was a failure here of the trial court adequately to comply with Rule 11. I, therefore, do not belabor this point.

The justification now given for affirming the judgment denying ' Farias’ motion to withdraw his plea of guilty is that, contrary to the provisions of the old statutes which forbade the granting of parole, and contrary to the, exception in the new statute referred to in the court’s opinion today, Farias mqy now apply to the Parole Board in the same manner as if he had been convicted under a statute which did not deny him that right initially.

I think the court cannot thus easily brush off the potential injury to the appellant, who is here actively before the court seeking an opportunity to withdraw a plea which he made without having been fully informed of the prejudice that might result to him. As pointed out in this court’s opinion in Hector S. Amaya v. U. S. Board of Parole, 5 Cir., 1973, 486 F.2d 940, 1973, the Board of Parole “has declined to consider Amaya’s application because of the conclusion conscientiously held by it, but now rejected by at least three Circuits, that as a matter of law he is not eligible for such consideration.” The court then issued what amounted to a declaratory judgment holding with the other circuits mentioned that the petitioner there was “eligible to be considered for parole.” It seems to me that it is far from clear that such a potential parolee may not have his whole future relations with the parole board colored to his detriment by virtue of the uncertainties surrounding the present state of the law in this field.

Moreover, with all deference, I think Trujillo is not good law, and it is still a controlling precedent in this circuit, not only with respect to the relatively few narcotics prosecutions that may still be active under the old statute, but with respect to cases in which persons convicted of other federal criminal statutes are denied the right to parole, e. g. 18 U.S.C. A. § 844(h)(2), and 18 U.S.C.A. § 924. There may be others.

Clearly this appeal is not moot, and it seems to me that the court should take this opportunity to make clear to the trial courts that in performing their duties under Rule 11, any person tendering a guilty plea must be informed, if it be the law, that whatever sentence is meted out cannot be reduced by a subsequent grant of probation.

I would reverse the judgment and remand the case with directions to grant appellant’s motion to vacate the plea of guilty.

      . It was contended by counsel for appellant that the F.R.Crim.P. 32(d) motion was entered when counsel learned for the first time that her client was statutorily ineligible for parole.


author: GOLDBERG, Circuit Judge.

text:
    Reuben V. ANDERSON et al., etc., Plaintiffs-Appellants, v. PASS CHRISTIAN ISLES GOLF CLUB, INC., and its manager, Lee Knight, Defendants-Appellees.
    No. 73-2625
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 25, 1974.

      Melvyn R. Leventhal, Theodore J. Lawyer, Jackson, Miss., Jack Greenberg, New York City, for plaintiffs-appellants.
    Walter J. Phillips, Bay St. Louis, Miss., George E. Morse, Gulfport, Miss., for defendants-appellees.
    Before THORNBERRY, GOLDBERG and RONEY, 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.

   GOLDBERG, Circuit Judge.

Plaintiffs, four black residents of Jackson, Mississippi, brought this class action in district court challenging the allegedly discriminatory membership and admission policies of defendant Pass Christian Isles Golf Club. They contended that defendant’s practices violated 42 U.S.C. § 2000a (Title II of the Civil Rights Act of 1964) and 42 U.S.C. §§ 1981-1982, and sought declaratory and injunctive relief in addition to compensatory and punitive damages. The United States District Court for the Southern District of Mississippi granted compensatory damages and certain declaratory relief, but refused to issue an injunction or to award attorneys’ fees. Plaintiffs appeal from these denials. We reverse.

The original complaint challenged defendant’s practices both in granting membership in the club and in permitting access to the golf course and related facilities. On this appeal, however, plaintiffs recognize that, having failed to apply for club membership, they have no standing to complain of defendant’s criteria for granting it, Moose Lodge 107 v. Irvis, 1972, 407 U.S. 163, 166-167, 92 S.Ct. 1965, 32 L.Ed.2d 627. Appellants therefore seek injunctive relief directed solely at the club’s policies in controlling use of the golf course. An answer to this request must be based on the resolution of three distinct questions: (1) whether defendant golf club discriminates on the basis of race in permitting individuals to use the course; (2) whether the policies and practices of the Pass Christian Isles Golf Club are insulated from court review by the “private club” exception in Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a(e); and (3) whether the declaratory order entered below is sufficient to protect plaintiffs’ legitimate interests.

This action arises out of a brief confrontation on the grounds of defendant’s golf course on February 27, 1972. The facts are not in dispute. Plaintiffs had purchased a two day “Golfers’ Holiday” under the auspices of the Downtowner Motor Inn of Gulfport, Mississippi. This vacation package provided motel accommodations and access to local golf courses upon payment of a flat rate which included green fees. Defendant’s golf course was part of the itinerary as the result of a business arrangement between the motel and the club. Under the working agreement, the motel manager became a club member and all of his customers were then entitled to play as his “guests.” When plaintiffs arrived at the course, however, they were met and turned away by the club pro, Mr. Leland Knight, who informed them that blacks were not permitted to play at the course. At trial Mr. Knight testified that he had been informed by the board of governors of a club policy of excluding blacks, and had acted pursuant to that rule in denying access to plaintiffs.

Though the findings of the district court were not entirely responsive to all of the allegations made by plaintiffs, the trial judge evidently found that defendant did not have a policy of excluding blacks from use of club facilities at the time of the incident in question. The evidence in the record does not support this conclusion. Given the unchallenged testimony of three of the named plaintiffs that they were rejected because of their race, and the evidence of defendant’s own employee that this step was taken pursuant to authoritative instructions from the board of governors, the defendant could not properly prevail below on the basis of nothing more than the statement of its current president that he was unaware of any such policy. Plaintiffs presented a prima facie case of racial discrimination, and defendant failed to produce any significant evidence in rebuttal. Cf. Bing v. Roadway Express, Inc., 5 Cir. 1971, 444 F.2d 687.

The parties agree that the Pass Christian Isles Golf Club is a place of entertainment affecting commerce and that it consequently falls within thé free access provisions of 42 U.S.C. § 2000a, unless the private club exemption is applicable. See Daniel v. Paul, 1969, 395 U.S. 298, 89 S.Ct. 1697, 23 L.Ed.2d 318; Miller v. Amusement Enterprises, Inc., 5 Cir. 1968, 394 F.2d 342 (en banc); Evans v. Seaman, 5 Cir. 1972, 452 F.2d 749, cert. denied, 408 U.S. 924, 92 S.Ct. 2493, 33 L.Ed.2d 335. Defendant had the burden in the proceedings below of demonstrating its truly “private” character. United States v. Richberg, 5 Cir. 1968, 398 F.2d 523, 529. Although the district judge concluded at the close of trial that defendant had successfully carried this burden, that conclusion is clearly erroneous on the basis of the record before us.

Even defendant concedes in its argument to this Court that the arrangements made with several local hotels for use of the course by their patrons are sufficient, as a matter of law, to destroy full “private” club status, and that it is therefore required by the Civil Rights Act to accept all hotel patrons referred under such agreements without regard to race. In addition, the record discloses that defendant holds its golf course and related facilities out to the public in return for the payment of green fees, that such fees are quoted over the phone by defendant’s employees without inquiry into the caller’s membership or hotel patronage, and that defendant’s course is regularly listed in tourist publications. The only response to this evidence was the testimony of defendant’s president that he is unaware of the club’s current practice with regard to public use of the course. This response was insufficient to support the finding that the golf course is not open to the public.

Flowing as it does from an erroneous view of the factual situation, the declaratory relief entered below is entirely inadequate to protect the legitimate interests of plaintiffs and others similarly situated. The district court’s judgment provides that:

Any guest, whether or not accompanied by a member of the club,-who is invited as a guest to play on the golf course of the defendant club, has a vested right to exercise such privilege regardless of his race, so long as a member is responsible to the club for his conduct.

We can only assume that the above statement was intended to respond to the rights of hotel patrons, under the general contract law and the Civil Rights Act, as a result of the agreements between the local hotels and the club. However, the declaratory order creates barriers to free access that are not found in anyone’s description of the working arrangement between defendant and the local resorts. It is clear beyond room for rational dispute that the hotel managers, who are formal “members” of the club, do not accept responsibility for the conduct of their paying guests and are not expected to do so. More importantly, the declaratory judgment entirely neglects the interests of the general public, who are entitled to colorblind access under 42 U.S.C. § 2000a.

In light of defendant’s apparent lack of candor regarding both racial discrimination and public access, and the repeated indications of the management’s uncertainty concerning the day to day operations of the club, it is our judgment that future violations of the law can be effectively deterred only through the issuance of an injunction. See United States v. Richberg, supra, 398 F.2d at 530-531. Such injunctive relief must provide that, so long as defendant continues to make its golf course and related facilities available to local hotel patrons and other members of the general public, no distinctions are to be made on the basis of race in granting such access.

On remand plaintiffs are also to be afforded the opportunity to present evidence on attorneys’ fees. s Title II of the Civil Rights Act of 1964 provides that the prevailing party is entitled to reasonable attorneys’ fees in the court’s discretion; and the decision of the United States Supreme Court in Newman v. Piggie Park Enterprises, 1968, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263, makes it clear that, when the plaintiff has succeeded in obtaining injunctive relief, a denial of attorneys’ fees can be justified only if “special circumstances would render such an award unjust.” 390 U.S. at 402. See also Miller v. Amusement Enterprises, Inc., 5 Cir. 1970, 426 F.2d 534. Defendant contends that fees should be denied here because plaintiffs’ counsel is associated in legal practice with one of his four clients. We fail to see how the existence of an independent business relationship between an attorney and one of his clients in a civil rights action has any bearing on the justice of the payment of attorneys’ fees. Such fees are awarded in order to “ensure that individual litigants are willing to act as ‘private attorneys general’ . . .,” Lee v. Southern Home Sites Corp., 5 Cir. 1971, 444 F.2d 143, 148. That policy objective remains operative regardless of the professional status of the particular plaintiff. Under the circumstances of this case the award of attorneys’ fees would not be unjust, and consequently the denial was an abuse of discretion. In reconsidering the matter of attorneys’ fees on remand, the district court should include in its calculations the time spent in the prosecution of this appeal.

To affirm the trial court here would mock the Civil Rights Act of 1964, which is not a mere concatenation of dead words, but a positive declaration of rights- — a Twentieth Century Magna Carta. Hopefully, we need not experience another Runnymede in 1974 for it to have vitality. The Civil Rights Act of 1964 is not an enactment on parchment to be placed under glass and venerated but not observed.

Reversed and remanded.


author: BELL, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. F. U. BRENNAN, Executrix of the Estate of William J. Brennan, Defendant-Appellant.
    No. 73-1765.
    United States Court of Appeals, Fifth Circuit.
    Jan. 25, 1974.

      C. V. Stelzenmuller, Birmingham, Ala., for defendant-appellant.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Tax Div., Dept, of Justice, Fred B. Ugast, Acting Asst. Atty. Gen., Lee H. Henkel, Jr., Acting Chief Counsel, I.R.S., Washington, D. C., Ira DeMent, U. S. Atty., Kenneth E. Vines, Asst. U. S. Atty., Montgomery, Ala., Murray S. Horwitz, Richard W. Perkins, Atty., Tax Div., Dept, of Justice, Washington, D. C., for plaintiff-ap-pellee.
    Before BELL, DYER and CLARK, Circuit Judges.
   BELL, Circuit Judge:

This action was instituted by the United States of America against F. U. Brennan, Executrix of the Estate of William J. Brennan, for unpaid Interest Equalization taxes and penalty, amounting to $31,613.50 plus interest as provided by law. The district court entered judgment, see United States v. Brennan, M.D.Ala., 1973, 368 F.Supp. 901, for the full amount in favor of the Government. Appellant contests the finding of both the tax liability and the penalty. We affirm as to the tax liability, but reverse the penalty award.

The Interest Equalization Tax Act, 26 U.S.C.A. §§ 4911-4920, imposes an excise tax on the acquisition by a United States person from a foreign person of foreign stocks and obligations. The Act was designed to provide a vehicle for reducing by appropriate taxation the balance of payments deficit of the United States, while insuring that local investment opportunities remain unimpaired. See 2 U.S. Code Congressional and Administrative News pp. 3478-3557, 88th Cong. 2d Sess. (1964). The Act, as of 1965 — the tax year in question — imposed a tax equal to 15 per cent of the value of foreign stock acquired by a United States person. 26 U.S.C.A. § 4911. Congress expressly excepted from taxation the acquisition of both foreign stock and foreign debt obligations by a United States person from another United Stat'es person, so as not to burden the trade of securities within the United States. 26 U.S.C.A. § 4918. The Act provides that if a United States person purchases foreign convertible debentures and then converts the debentures into foreign stock, this constitutes the acquisition of foreign stock from a foreign issuer. 26 U.S.C.A. § 4912. Credit however would be given for the tax actually paid with respect to the debt obligation when acquired. 26 U.S.C.A. § 4913.

In 1965 William J. Brennan purchased 748 4% per cent convertible subordinated debentures of KLM Royal Dutch Airlines, a Netherlands corporation. These debentures were acquired from American owners, were accompanied by interest equalization tax-clear confirmations under 26 U.S.C.A. § 4918(d), and were therefore exempt from the Interest Equalization Tax. On October 14, 1965, Brennan converted 214 of the debentures into KLM Royal Dutch Airlines common stock in response to a September 14, 1965 notice of redemption issued by KLM. Treated as an “acquisition of stock from a foreign issuer,” this conversion, contended the government, gave rise to an interest equalization tax of $41,119.50 .(15 per cent of the purchase price of the stock), minus a credit of $21,108.01, prescribed by section 4913(a)(3), for a net tax liability of $20,011.49. Brennan had not filed an equalization tax return nor paid the amount in question. Although the Interest Equalization Tax Act is not without linguistic difficulties, we have concluded that the district court correctly affirmed that part of the government’s assessment. For a similar conclusion involving almost identical facts, see Armstrong v. United States, C.D. Cal., 1971, 27 Am.Fed.TaxR.2d 1884.

PENALTY

Internal Revenue Code Section 6651(a) (1) authorizes a 25 per cent penalty for failure to file a return but that the penalty may be avoided if the taxpayer can show that the failure to file was due to a reasonable cause and not due to willful neglect. Appellant contends that the penalty is unwarranted here because the issues she raises, even if resolved against her, involve serious questions of interpretation; that the statute is filled with exceptions, exemptions, and definitions all couched in difficult language and particularly uncertain in 1965 when this was relatively new legislation. Appellant submits that this was reasonable cause at the time not to file a return and thus not willful neglect. The cases are agreed that neither inadvertence nor ignorance of the law is an excuse to avoid the penalty. Logan Lumber Company v. Commissioner of Internal Revenue, 5 Cir., 1966, 365 F.2d 846, 853. Cf. Southeastern Finance Company v. Commissioner of Internal Revenue, 5 Cir., 1946, 153 F.2d 205. Appellant does not so contend. Rather, she asserts that a misunderstanding based on reasonable doubt caused by actual ambiguities in the statute as to whether a return is required may be an acceptable excuse. See Economy Savings & Loan Co. v. Commissioner, 6 Cir., 1946, 16 CCH Tax Ct. Mem., Para. 47,148, aff’d, 6 Cir., 1946, 158 F.2d 472. See generally 10 Mertens § 55.23, at 166-7 (1970). The district court here recognized that a literal reading of 26 U.S.C.A. § 4913(a)(3)(A) could result in a zero tax liability under the present facts, see note (1) supra. We agree but, like the district court, we reject this construction. This does not mean, however, that the statute is without ambiguity.

The sole basis for the District Court’s sustaining the penalty was the inference from the pre-trial stipulation that taxpayer had notice that the conversion in question would result in tax liability under the Act. Taxpayer may or may not have had notice, but there is no basis in the record for the inference. The Government has argued that a document referred to as a memorandum was attached to KLM’s notice of redemption of the debentures in question. The so-called memorandum states that a United States person converting KLM debentures would be considered to have acquired common stock from a foreign person and thus subject to the Interest Equalization tax. While the memorandum appears on its face to be in the form of an advertisement and doubtless appeared in some publication, there is nothing in the record to show that taxpayer knew or should have known of it. The stipulation merely states that a copy of the notice of redemption “together with a memorandum with respect thereto and obtained by the Internal Revenue Service from the First National City Bank of New York is attached hereto and marked ‘Exhibit A’.” There is nothing in the record before us to suggest that the memorandum was sent to taxpayer or was otherwise brought to his attention. There is nothing in the record to show that the notice of redemption itself contained the information as to tax being due. There was thus no factual basis for the holding of the District Court that KLM’s notice of redemption contained a memorandum giving appellant notice that tax liability would result under this Act upon conversion of the debentures. The penalty therefore cannot be sustained.

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

Affirmed in part, reversed and remanded in part for further proceedings not inconsistent herewith.

      . Section 4913(a) (3) (A) provides:
      “Special limitations.—
      Conversion of debt obligations into stock.— The tax imposed upon an acquisition of stock pursuant to the exercise of a right to convert a debt obligation . . . into stock shall be limited to—
      “(i) the amount of the tax which would have been imposed by Section 4911 if the debt obligation had been treated as stock at the time of its acquisition by the person exercising the right (or by a decedent from whom such person acquired the right by bequest or inheritance or by reason of such decedent’s death,) less
      “(ii) the amount of tax paid by the person exercising the right . . as a result of the acquisition of the convertible debt obligation or, if such acquisition was not subject to the tax imposed . . . the amount of the tax which would have been imposed as a result of such acquisition if such acquisition had been subject to such tax.”
      Taxpayer says that in ascertaining (i), or the amount of tax that would have been imposed by section 4911 if the debt obligation had been treated as stock at the time of its acquisition by the person exercising the right, the bonds treated as stock when William Brennan acquired them would have been tax exempt under 26 U.S.C.A. § 4918 because they would have been stock acquired from a prior American owner. The legislative history, S. Rep.No.1267, 88th Cong., 2d Sess., p. 33 (1964-2 Cum.Bull. 767, 791), and 26 U.S.C.A., § 4912(a), providing explicitly that “any” exercise of a right to convert a foreign debt obligation into stock “shall be deemed an acquisition of stock from the foreign issuer by the person exercising such right,” indicate that § 4913 was meant only to insure against imposition of a heavier tax upon the conversion of debt into stock than would have been imposed had the stock originally been acquired in a taxable transaction.

      . See note (1) supra.

      In Mora v. United States, E.D.Va., 1966, 266 F.Supp. 291, 294, the court did say the Act was plain and unambiguous, but it did so only with reference to the specific section at issue in that case, 26 U.S.C.A. § 4912, in order to reject taxpayer’s argument there that the act was inapplicable to a transaction resulting in no actual flow of dollars from the United States.

      . Cf. First National Bank in Dallas v. United States, Ct.Cl., 1970, 420 F.2d 725, 190 Ct.Cl. 400, cert. denied, 398 U.S. 950, 90 S.Ct. 1868, 26 L.Ed.2d 289; Purvis v. United States, W.D.Wash., 1972, 344 F.Supp. 785.


author: PER CURIAM:

text:
    Thomas Charles WARREN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-3111
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 28, 1974.
    Robert E. Price, Houston, Tex. (Court-appointed), for petitioner-appellant.
    James R. Gough, Asst. U. S. Atty., Anthony J. P. Farris, U. S. Atty., Houston, Tex., for respondent-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

On September 29, 1972, petitioner Warren pleaded guilty to a charge of interstate transportation of a stolen motor vehicle, a violation of the Dyer Act (18 U.S.C. § 2312), and received the maximum sentence of five years. Some five months later petitioner initiated the present action, filed pursuant to 28 U.S. C. § 2255, seeking to have his plea set aside. An evidentiary hearing was held before the sentencing judge and relief was denied. We affirm.

Petitioner’s brief alleges ten points of error in the original sentencing procedure, but this shotgun attack contains essentially three substantive arguments: (1) that the sentencing court should not have accepted petitioner’s waiver of counsel and plea of guilty without conducting a competency hearing as authorized by 18 U.S.C.A. § 4244; (2) that petitioner was induced to enter his plea by a prosecutor’s unfulfilled promise of lenient treatment; and (3) that the sentencing court did not follow the dictates of Rule 11 of the Federal Rules of Criminal Procedure in accepting the guilty plea.

The first allegation of error is grounded in the fact that the court had been informed before sentencing that petitioner was a heroin addict. Addiction to narcotics, however, does not automatically render a defendant incompetent either to stand trial or to enter a plea. See Grennett v. United States, 1968, 131 U.S.App.D.C. 202, 403 F.2d 928. Nor is a trial court required under all circumstances to order a competency hearing on its own motion whenever the defendant’s addiction becomes known. United States v. Williams, 5 Cir. 1972, 468 F.2d 819. The district judge interrogated petitioner at some length in regard to his physical condition at the time of the arraignment and sentencing. He observed Warren’s demeanor and the quality of his responses. Petitioner stated that he had taken no hard narcotic drugs during the forty-seven days prior to sentencing — a contention that he did not deny at the § 2255 hearing. On the basis of this record we cannot say that the evidence of mental incompetence was so strong as to require a hearing. The district court, therefore, did not abuse its discretion in failing to order a psychiatric examination of the accused. See United States v. Williams, supra; Rice v. United States, 5 Cir. 1969, 420 F.2d 863.

Petitioner’s second argument is conclusively answered in the transcript of the § 2255 hearing. The district court had the benefit of testimony from petitioner, the Assistant United States Attorney who was alleged to have made the agreement, and the investigating agent from the F.B.I. The court found that the weight of credible evidence did not support petitioner’s allegation of a deal. That conclusion is not clearly erroneous. Rule 52(a) F.R.C.P.

The final contention is also governed by the transcript. We have read the exchange between court and defendant at the time of sentencing, which was placed in the record at the § 2255 hearing. We find no deviation from the standards required by Rule 11. Contrary to petitioner’s assertions, our examination discloses that the district judge both inquired into the voluntariness of the plea and developed its factual basis in the record. See Santobello v. New York, 1971, 404 U.S. 257, 261, 92 S.Ct. 495, 30 L.Ed.2d 427. Petitioner has presented no persuasive reason for disturbing the finality of that Rule 11 proceeding.

Affirmed.


text:
    ZINNAMON ASSOCIATES et al., etc., Plaintiffs-Appellees, v. Ralph W. SWAFFORD, Defendant-Appellant.
    No. 73-1984.
    United States Court of Appeals, Fifth Circuit.
    Jan. 31, 1974.

      Lee A. Chagra, El Paso, Tex;, for defendant-appellant.
    Morris A. Galatzan, El Paso, Tex., Albert D. Misler, Edward H. Kerman, Washington, D. C., for plaintiffs-appel-lees.
   ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

Before BELL, DYER and CLARK, Circuit Judges.

PER CURIAM:

Appellant urges us to grant his petition for rehearing because, during the trial of the cause, the judge left the courtroom while testimony was being taken and thus was not present to rule on objections or hear evidence upon which the rights of the parties were determined.

A bench trial was held on August 14, 1972, with the judge present during the entire proceedings. At the conclusion of the trial the court held that the appel-lees were entitled to relief. Nevertheless, because of the representation of appellant that he had another witness and certain documents that were then unavailable, the court adjourned the trial for one week.

On August 21, 1972, appellant produced his witness but no documents. On this occasion the judge was present during the entire direct examination and through part of the cross examination of appellant’s witness. He then informed counsel that he had a jury case going in another courtroom and inquired of them whether they desired to take a recess or continue the taking of testimony without him before another reporter.

Counsel for appellee expressed his desire that the judge be present during his cross examination of the- witnesses. Counsel for appellant not only did not object to going forward with the bench trial in the absence of the judge but requested that he be given the privilege of reserving all objections, to be made to the court after the testimony was transcribed. The court advised counsel that he would be available downstairs if a question came up, that a final ruling would be held in abeyance until the transcript was filed and he had an opportunity to read it and consider any objections then to be made by counsel.

Under these circumstances, while we abjure the judge’s absenting himself from the courtroom during the bench trial (even though he was engaged in another trial), appellant made no objection to the court’s deposition type proceeding and may not therefore now raise this issue for the first time on appeal.

In the absence of exceptional circumstances where a miscarriage of justice would result, a condition not present here, questions that were not presented to or passed on by the trial court will not be considered on appeal. Wisconsin Barge Line, Inc. v. Coastal Marine Transport, Inc., 414 F.2d 872 (5th Cir., 1969); B & G Electric Co. v. G. E. Bass & Co., 252 F.2d 698 (5th Cir. 1958). See also J. F. White Contracting Co. v. New England Tank Industries, 393 F.2d 449 (1st Cir. 1968).

D. H. Overmyer Co. v. Loflin, 440 F.2d 1213 (5th Cir., 1971).

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en bane, (Rule 15 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12), the Petition for Rehearing En Banc is denied.