text:
    The FIRESTONE TIRE & RUBBER COMPANY, Plaintiff-Appellee, v. INTERNATIONAL UNION OF the UNITED RUBBER, CORK, LINOLEUM AND PLASTIC WORKERS OF AMERICA, AFL-CIO, et al., Defendants-Appellants.
    No. 72-2189.
    United States Court of Appeals. Fifth Circuit.
    April 13, 1973.
    George E. Barrett, Nashville, Tenn., George Vasko, Gen. Counsel, United Rubber Workers Int’l, Akron, Ohio, for defendants-appellants.

      Robert L. Thompson, George B. Smith, Atlanta, Ga., S. B. Lippitt, Jr., Albany, Ga., Walter B. Connolly, Jr., Akron, Ohio, for plaintiff-appellee.
    Before GEWIN, GOLDBERG and SIMPSON, Circuit Judges.
   PER CURIAM:

This is an appeal from the entry of an order denying a stay pending arbitration and enjoining the defendant-union from pursuing any actions or proceedings arising out of the contract breach at issue in this lawsuit. We affirm.

This action was initiated by plaintiffappellee, Firestone Tire & Rubber Company [Firestone] against defendants-appellants, the International Union of the United Rubber, Cork, Linoleum and Plastic Workers of America, Local No. 887 of that Union, and several individuals. In the suit Firestone sought injunctive relief and damages for violation of the no-strike provision contained in the collective bargaining agreement. After considerable procedural jockeying, the Union filed a motion in the court below on March 29, 1972, seeking a stay of the court proceedings pending arbitration. After hearing argument on the motion, the district court found that the collective bargaining agreement did not contemplate arbitration of no-strike clause breaches. In an order dated April 11, 1972, the district court denied the stay pending arbitration and enjoined the Union:

“from commencing or continuing, or causing the commencement or continuation, either directly or indirectly, of any action, suit, proceeding, case, controversy, or other form of litigation or dispute against the Plaintiff herein (including without in any way limiting the generality of the foregoing, the action presently pending as Civil Action No. C72-196 in the United States District Court for the Northern District of Ohio), which are based upon, arise out of or are related to the transactions or occurrences which are the subject matter of the Plaintiff’s complaint herein; provided, however, that the foregoing shall not be deemed or construed as restricting, prejudicing or adversely affecting in any manner the rights of any or all of the Defendants herein to assert in this proceeding any defense or counterclaim that may be available to any or all of such Defendants to or against the claims asserted by the Plaintiff herein.”

It is from the entry of the above order that the Union brings this appeal.

As a threshold matter, Firestone argues that (a) the order appealed from is non-appealable, and (b) the case is moot. It is true that an order denying a stay pending arbitration is non-appealable where the underlying suit seeks equitable relief. See Wallace v. Norman Industries, Inc., 5 Cir. 1972, 467 F.2d 824; Southeastern Enameling Corp. v. General Bronze Corp., 5 Cir. 1970, 434 F.2d 330; Jackson Brewing Co. v. Clarke, 5 Cir. 1962, 303 F.2d 844; New England Power Co. v. Asiatic Petroleum Co., Inc., 1 Cir. 1972, 456 F.2d 183; J. M. Huber & Co. v. M/Y Plym, 4 Cir. 1972, 468 F.2d 166; Buffler v. Electronic Computer Programming Inst., Inc., 6 Cir. 1972, 466 F.2d 694; Standard Chlorine of Del., Inc. v. Leonard, 2 Cir. 1967, 384 F.2d 304; 9 Moore’s Federal Practice ¶ 110.20 [.4-1]. The order appealed from here, however, went beyond merely denying a stay. It enjoined any and all proceedings, including arbitration, that might have been pursued by the Union. An injunctive order of this type is clearly appealable, 28 U.S.C. § 1292(a)(1).

Firestone also challenges the justiciability of this appeal based upon the fact that subsequent to the submission of this appeal on February 6, 1973, the underlying suit went to trial and on March 9, 1973, the United States District Court for the Middle District of Georgia issued a memorandum opinion containing findings of fact and conclusions of law. The Union, seeking reversal, urges us to decide the case. Firestone urges us to find in mootness a refuge from decision. If Judge Bootle’s decision, in fact, left nothing of the order appealed from to pass upon, then our jurisdiction would be ousted. We do not sit to render advisory opinions as to the interpretation of collective bargaining agreements. This is not, however, such a case. We are unable to say for a certainty that had we found the district court’s injunction erroneously entered the Union would have been remediless. Inasmuch as we are affirming the injunction and thereby leaving the status quo undisturbed, it is unnecessary to catalogue the potential remedies had we reversed and decided the case should never have gone to trial. The justiciability of a controversy should not be dependent upon the result reached. It suffices to say that had we reversed, the possibility for some relief was present and we therefore conclude that the order appealed from is not moot. See Flight Eng. Int’l Ass’n v. National Mediation Board, 1964, 119 U.S.App.D.C. 171, 338 F.2d 280, 282; see also Southwestern Bell Tel. Co. v. Communication Wkrs. of Ab., 5 Cir. 1971, 454 F.2d 1333, 1334; Allen M. Campbell Co. Gen. Con. Inc. v. Lloyd Wood Const. Co., 5 Cir., 1971, 446 F.2d 261, 264.

The Union challenges the district court’s finding of non-arbitrability by contending that Art. XI, § 3(b) of the collective bargaining agreement evidences an intent of the parties to arbitrate the question of union fault prior to the commencement of a court suit for breach of the no-strike clause. The court below considered the contract as a whole, particularly the wholly employee-oriented grievance machinery, and concluded that the issue was non-arbitrable.

As the district court properly recognized,

“First, there is a strong national policy favoring labor arbitration and an order to arbitrate pursuant to an arbitration clause should not be denied unless it may be said with “positive assurance” that the arbitration clause does not reach the dispute in question. United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (I960).”

The basis of arbitration is, however, contractual and unless the parties have provided for arbitration in the collective bargaining agreement, the court is powerless to compel arbitration. Numerous cases have held that breaches of a no-strike clause are not subject to arbitration where (1) the grievance provisions of the agreement neither explicitly nor implicitly provide for such arbitration, and (2) the contractual grievance machinery is wholly employee oriented. E. g., Atkinson v. Sinclair Refining Co., 1962, 370 U.S. 238, 82 S.Ct. 1318, 8 L. Ed.2d 462; G. T. Schjeldahl Co., Packaging Machinery Division v. Local 1680, IAM, 1 Cir. 1968, 393 F.2d 502; Boeing Co. v. International Union, 3 Cir. 1967, 370 F.2d 969. The district court correctly applied this principle to the instant contract, and we affirm its finding that the company was not obligated to seek arbitration of the no-strike breach.

Although the provisions of Art. XI, § 3(b), when viewed in isolation, might possibly raise an ambiguity as to arbitrability, when placed in the context of the whole contract, particularly the employee-oriented grievance procedures, there can be no question that the parties did not intend arbitration of no-strike breaches.

Affirmed.

      . This suit was originally filed in Georgia State Court and removed to federal court by the Union. Simultaneously with its petition for removal, the Union filed an action against Firestone in the state court in Ohio alleging that Firestone breached the contract by filing the suit in Georgia. Firestone had that action removed to federal court in Ohio. The Ohio proceeding was then consolidated with the Georgia suit in the court below.

      . That portion of the appeal directed at the district court’s injunction of the Ohio proceedings was dismissed as moot by order of this Court on October 2, 1972.

      . Art. XI, § 3(b) of the contract reads:
      “The Company agrees that in consideration of the carrying out of the responsibilities placed upon the International Union and the respective Local Unions and their officer’s, agents and members in Paragraph (a) of this Section that the Company will institute no action for monetary damages against the International Union or the respective Local Unions or their officers, agents or members for breach of said Paragraph (a).”


source: Caselaw Access Project

author: ALDRICH, Senior Circuit Judge.

license: Public Domain

text:
    Bernice M. STANLEY, etc., Plaintiff-Appellee, v. UNITED STATES of America et al., Appellees. Appeal of MIDWEST CONSTRUCTION CO., INC., First Third-Party Defendant and Second Third-Party Plaintiff. Bernice M. STANLEY, etc., Plaintiff-Appellee, v. UNITED STATES of America et al. Appellants.
    Nos. 72-1354, 72-1355.
    United States Court of Appeals, First Circuit.
    Argued March 7, 1973.
    Decided April 13, 1973.
    John W. Ballou, Bangor, Me., with whom Mitchell & Ballou, Bangor, Me., was on brief, for Midwest Construction Co., Inc.
    Ronald R. Glancz, Atty., Department of Justice, with whom Harlington Wood, Jr., Asst. Atty. Gen., Peter Mills, U. S. Atty., and Morton Hollander, Atty., Department of Justice, were on brief, for United States.
    Thomas Schulten, Portland, Me., with whom Perkins, Thompson, Hinckley, Thaxter & Keddy, Portland, Me., were on brief, for Bernice M. Stanley.
    Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.
   ALDRICH, Senior Circuit Judge.

Plaintiff’s intestate, Stanley, was killed when he fell from a platform inside a Navy antenna tower. Stanley was an employee of a subcontractor of Midwest Construction Co., which was engaged in painting a complex of low-frequency radio towers at Cutler, Maine. Plaintiff, barred by the receipt of workmen’s compensation from suing Stanley’s employer for negligence, brought suit against the government, alleging defective design of the tower. The government claimed over against Midwest, asserting its negligence and breach of its undertaking to “take proper safety . . . precautions to protect . . . the workers.” The district court, in a comprehensive opinion, 347 F.Supp. 1088, found for the plaintiff in her suit against the government, and for the government against Midwest. Both defendants appeal.

The tower in question, No. S-O, is an elongated triangular prism, its three legs arising 979 feet from the apexes of a triangular base 12 feet on a side. The sides are skeletal, with a horizontal beam about every 12 feet, with a single diagonal cross of tie-rods, or windrods, so called, in the space between. The inside is empty, except that every 70 feet there is a triangular grating, or platform, 12'xl2'xl2' with a 2'x3' rectangular aperture, or cut-out, to afford access to a ladder which runs down the side to the platform next beneath. These apertures are staggered from platform to platform, as the ladder shifts from one side of the tower to another as one progresses from one platform to the next. Although there was no testimony on the subject, this seems an obvious safety feature, so that the platform at the base of the ascending ladder would be solid. The effect of this, of course, is to require everyone ascending or descending the tower to dismount the ladder and cross over at each platform. The principal purpose of the platform, apart from providing strength to the structure, is to serve as a place of rest. There are no guardrails around the cut-out, and none around the outside of the platform.

On the day in question Stanley and two other men were engaged in painting the tower, some 700 feet up. It was Stanley’s second day on the job. He was 20 years old, and without experience or even training in high work. Because of his inexperience he was assigned to work from the platforms, which was thought to be safer. The other workers were a short distance above him, using simply the beams and windrods for support. They clambered about, applying the paint with a mitten. Stanley, having an easier foothold, was using a paint roller on a 6-foot rod, which required both hands. Shortly before the accident he was observed standing in a corner by one leg of the tower on an essentially triangular portion of the platform which was of a small area, because immediately in back of him was the ladder cut-out. He was reaching up with the roller and in no apparent difficulties. Shortly thereafter the other workers heard a clatter, that they took to be the fall of the roller and handle onto the platform, and they then saw Stanley in the air dropping down to the platform below. He died of a crushed skull.

The dispute at the trial revolved about two issues — whether the government was liable because of failure to supply guards to the ladders’ cut-outs, and whether Midwest was liable for not taking precautions in view of the absence of such protection. The court found for the plaintiff against the government on the issue of absence of guardrails, and for the government against Midwest on the ground that it should have provided Stanley with a safety belt and attachment, which, it found, would have served as an adequate substitute.

One of Stanley’s co-workers testified, without contradiction, that the belt offered them by the contractor did not fit the ladder safety device, and was not usable for the work they had to do. No serious attack is made by anyone on the court’s finding that a different belt should have been provided, or by Midwest on the court’s finding liability over. Having in mind the contractor’s general assumption of safety responsibility as part of its contract, an attack on either of these conclusions would be difficult to sustain. Midwest’s basic position on appeal is that the government was not liable, and that accordingly Midwest was not. Concededly the conclusion follows if the predicate is correct.

Plaintiff’s case against the government is based principally upon the testimony of her expert, one DeTarnowsky. DeTarnowsky, relying upon a published American Standard Safety Code for Floor and Wall Openings, Railings, and Toe Boards, testified that good safety practice called for guardrails around the ladder cut-outs. Asked whether these apertures, and their consequent dangers, were not fully obvious, he stated that a man engaged in painting might have his attention diverted, and temporarily “forget” their existence, or proximity. The court accepted this testimony, and on this basis found for the plaintiff.

DeTarnowsky conceded that the absence of a guardrail did not constitute a danger to persons climbing the tower, who could be expected to pause on the platform only for a rest. For such persons there would be nothing to distract their attention from the existence of the aperture. To this must be added, because of the court’s obligation to look at the record as a whole, United States v. United States Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746, certain uncontradicted and inherently credible testimony introduced by the defendants that as to such other persons guardrails would have been affirmatively detrimental.

It appears that the towers are climbed with some regularity, as the Navy maintains a crew of four persons engaged in servicing the antennae and cables. Such individuals would have to pass through the gate at each platform as they passed from one ladder to the next to reach the top. Not only would this have been an inconvenience, but for them guardrails presented an actual danger. The government safety expert testified,

“I think that when they designed this, they considered that any man who used this platform and this ladder would be incumbered by either equipment or by the roller which is a belt which sticks out in front of you, [a safety device used by Navy personnel, not the paint roller] as you know, that he would possibly hang that up on the railing and they decided, and I think properly, not to put a railing around the opening here.”

While DeTarnowsky disagreed with the witness vis-a-vis a painter who worked on the platform, he did not contradict the witness’ general conclusion that a guardrail would be an incumbrance to other users, nor, considering the evidence, and the physical structure, do we think he could have. The expert testimony, accordingly, comes to this. The platform, without rails, was a dangerous place for a painter, particularly an inexperienced painter, to work. It was perhaps more dangerous than such a painter might appreciate. On the other hand, as to all other persons, who manifestly used the tower far more frequently, and who would have to traverse apertures 26 times for a single ascent, guardrails were not only not needed, but were to some degree contra-indicated. Furthermore, the special danger applicable to painters could, as the court found, be obviated by the use of safety belts with a tag line attachment.

The law of Maine is that a landowner is normally not liable to third parties for dangers that are open and obvious. Orr v. First National Stores, Inc., Me., 1971, 280 A.2d 785, 797. While there is an exception where obviousness may not be enough, Isaacson v. Husson College, Me., 1972, 297 A.2d 98, this is applicable only when the landowner has reason to believe that apparent obviousness will not be sufficient. In the case at bar the government was not dealing with ordinary business invitees, but with specialists, of whom more could be expected. Cf. Gowdy v. United States, 6 Cir., 1969, 412 F.2d 525, cert. denied 396 U.S. 960, 90 S.Ct. 437, 24 L.Ed.2d 425; Barrett v. Foster Grant Co., 1 Cir., 1971, 450 F.2d 1146. It had provided in its contract that the contractor should attend to safety. The court’s “hold[ing] that the United States should reasonably have foreseen that painters, particularly if inexperienced, might lose both sight and consciousness of the nearby, unguarded ladder hole in the otherwise safe platform and back, trip or otherwise fall into it unless safety precautions were taken,” is at best irrelevant in the absence of any evidence that the government should have supposed that the contractor would employ inexperienced workers on such a dangerous job and, more particularly, that it would fail in its obligation to take the safety precautions its workers required.

The court’s finding of negligence on the part of the contractor seems clear. With respect to the government, however, looking at “all the circumstances,” as we are cautioned to do in Orr v. First National Stores, Inc., ante, 280 A.2d at 798, it seems peculiarly inappropriate to charge it for not installing guardrail protection for the occasional painter, who could be otherwise protected, at increased risk to the tower’s regular users. The government did what it should, and cannot be held liable. There is, accordingly, nothing for which the third-party defendant must indemnify it, and both complaints must be dismissed.

      . Midwest objected to the admission of De-Tarnowsky’s testimony as a violation of the pre-trial order’s commitment to give reasonable advance notification of any additional witnesses. We agree that the pretrial order was violated (see also F.R. Civ.P. 26(b)(4)), but this did not, per se, make the testimony inadmissible. Violation merely gives opposing counsel the opportunity to assert prejudice. Midwest might properly have asked for a continuance or, this being a non-jury case, for leave to put on a rebuttal witness later. It did neither.

      . See cases, post.

      . On the issue of proximate cause defendants argue at length that it was entirely speculative whether this was the reason that Stanley fell through the hole, suggesting that he might equally have lost his footing, either when about to step onto the ladder, or while on the ladder itself. While it is true that it does not appear what Stanley was doing at the instant of fall, we consider that the very fact that there was a dangerous condition in his immediate presence warranted a finding that it was more likely that he succumbed to the danger than that he injured himself independently. Although Stanley was inexperienced, the evidence was that he was strong and without physical defects. Conversely, we need not discuss certain theories of government liability advanced by the plaintiff at the trial and rejected by the district court, one of which is reargued by the plaintiff. No error appears in this connection.

      . The court properly rejected the government’s argument that hand rails would have interfered, electrically, with the operation of the tower, but this was another matter.

      . Although not necessary in the present case, we believe the burden of establishing the exception should be substantial. Otherwise, since whenever a party has been injured the warning has in fact been ineffective, there will be a danger of the exception being found to swallow up the rule.

      . The district court distinguished Gowdy on the ground that there was there another, safer, way in which the plaintiff could have done his work. It failed to take, however, the next step and discuss that, vis-a-vis the government, there was a safer way the present plaintiff could have done his work, namely with a safety belt that was the contractor’s responsibility. Governmental negligence is equally negated.

      . The Court found,
      Negligence in selecting a contractor has apparently been abandoned in plaintiff’s post-trial memorandum, and properly so in view of the absence of evidence. An allegation of the government’s failure to maintain adequate supervision over the contractor has not been pressed. This again seems sensible in the absence of evidence of retained control beyond the right to inspect and object. See W. Prosser, Handbook of the Law of Torts § 71 (4th ed. 1971).” 347 F.Supp. at 1090.


author: PER CURIAM:

text:
    STATE OF NEW JERSEY, Plaintiff-Appellee, v. Harry Joseph KAISER and Harry J. Kaiser, as Administrator of the Estate of Susan Kaiser, Deceased, Defendants. United States of America, Intervenor-Appellant.
    No. 72-1075.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) Feb. 13, 1973.
    Decided March 13, 1973.
    Herbert J. Stern, U. S. Atty., Newark, N. J., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwax, Bennett N. Hollander, Thomas H. Boersehinger, Tax Div. Dept, of Justice, Washington, D. C., for appellant.
    Walter J. Dorgan, Gross, Demetrakis, & Donohue, Hackensack, N. J., Albert S. Gross, of counsel, for appellee.

      Before VAN DUSEN and ADAMS, Circuit Judges, and BRODERICK, District Judge.
   OPINION OF THE COURT

PER CURIAM:

The conflicting claims of the United States and Bergen County, New Jersey to a large sum of money, seized during a search of premises suspected of being the site of a gambling operation, form the basis of this appeal. Central to the resolution of these competing claims is the determination whether that fund, to wit $265,000, represents an instrumentality of illegal activity and thus contraband, forfeitable to the state or county, or an accumulation of funds or profits derived from illegal activity, and thus subject to a lien asserted by the United States.

The facts giving rise to this controversy are fully explicated in the opinion of the district court, 338 F.Supp. 42, and need only summarization at this point.

On July 14, 1960, a raid pursuant to a search warrant was conducted on a house in North Arlington, New Jersey. This house was occupied at that time by Harry Kaiser, Susan Kaiser and Edna Kaiser. The search of the first floor of the house uncovered numbers slips, gambling paraphernalia and a sum of cash totaling slightly more than $18,500. The second floor of the house contained two bedrooms. The search of one of the bedrooms produced $3,650. in a chest of drawers. Further, search of that room revealed a fireproof steel strongbox. Because the Kaisers did not have a key for it, the police had to force open the box. When opened, the box was found to contain $265,000. Beyond this large sum of money, the search produced clothing and two prescriptions, indicating that this bedroom had been occupied by one Joseph Moriarity. Later investigation revealed that Moriarity had in his possession keys which would open the strongbox.

Joseph V. Moriarity has an extensive record of involvement in illegal gambling. See Farley v. $168,400.97, 55 N. J. 31, 259 A.2d 201 (1969). In August, 1947, a federal income tax delinquency was assessed against Moriarity and demand for payment made. In 1955, a judgment on this delinquency was entered. Thus, the Federal government has a lien on property belonging to Moriarity. And the claims of the Federal government exceed $265,000.

New Jersey has a statutory schema requiring forfeiture of certain seized contraband. N.J.Stat.Ann. § 2A: 152-6 provides that, when seized, “any furniture, implement, device or machine, made or used for the purpose of gambling” becomes the property of the county. It is the county’s burden, however, to prove illegal use. Krug v. Board of Chosen Freeholders, 3 N.J.Super. 22, 65 A.2d 542 (App.Div.1949). N.J.Stat.Ann. § 2A: 152-7, enacted after 152-6, permits the assumption that if money is seized in connection with an arrest for violation of the gambling laws the money is prima facie contraband and forfeitable. Both statutes require, however, that there be an active employment of the money in a gambling operation. See Krug v. Board of Chosen Freeholders, supra.

The district courtp relying on Spagnuolo v. Bonnet, 16 N.J. 546, 109 A.2d 623 (1954), stated its belief that the source of the money, not the present utilization of the sum, determines whether it is an element in a gambling enterprise for the purpose of the state forfeiture. Finding that the money was the product of a gambling enterprise, the district court determined that the money was forfeitable. Therefore, it reasoned, the money was not an asset of Moriarity’s and hence not subject to the lien of the Federal government. Thus, the district court held that the state’s claim to the money was to prevail.

The district court issued its opinion on October 15, 1971. On January 25, 1972, this Court decided the case of Stapleton v. $2,438,110. Stapleton also involved Moriarity, his tax lien, and money found belonging to him. In Stapleton, as here, there were competing claims for the money, the state claiming that the money was forfeitable under the state statutory arrangement, the Federal government asserting its rights under the tax lien. Implicit in the opinion of the Court and explicit in the concurring opinion of Judge Adams was the differentiation between funds seized which are actually in use in furtherance of a gambling operation and funds which have passed out of the operation and become accumulated profits. In holding that the funds in Stapleton were to go to the Federal government, that case makes clear that only funds actively used in a gambling operation are forfeitable to the state.

The determinative issue thus can be stated fairly simply. If the $265,000. is money that is being used as an element in a gambling operation revealed in the search, then, pursuant to the New Jersey statutes, the money is forfeitable to the state. If, however, the money is not an element in the enterprise but “an accumulation of profits from gambling, ‘the stake for which men gamble’ or the product of gambling,” following Staple-ton, it is not subject to state forfeiture. If the money is forfeitable, the Federal lien does not attach because the fund cannot be deemed the property of Moriarity. On the other hand, if the sum is not forfeitable, then, assuming that the sum is Moriarity’s, it becomes subject to attachment by operation of the lien.

Our review of the findings of the district court indicates that the $265,000. was not actively used in a gambling operation but was an accumulation of profits or proceeds, of some enterprise, not necessarily the one revealed in the July 14, 1960 search. The numbers operation uncovered in the search of the Kaiser’s house appeared to have receipts for the day totaling approximately $12,000. Uncontradicted expert testimony showed that the cash reserve, or “bank,” necessary to support a numbers operation need be only one-half of the daily handle. Thus, the $265,000. clearly was not the “bank” of that operation. Indeed, the district court stated, “ [I]t was accumulated out of illegal gambling operations. . . . The fact that the $265,000. may not have been used in the daily operation and financing of the gambling business being conducted in the Kaiser residence would in no way affect the presumption that the money was the proceeds of a gambling operation.”

Under our holding in Stapleton, these findings require that the fund be awarded to the United States under the lien against Moriarity rather than be forfeited to the state as contraband. Therefore, the judgment of the district court must be reversed.

The case will be remanded to the district court for the entry of a judgment in conformity with this opinion. Costs to be taxed to each side.

      . 454 F.2d 1210 (3d Cir.), cert. denied, 409 U.S. 894, 93 S.Ct. 111, 34 L.Ed.2d 151 (U.S. Oct. 10, 1972).

      . The Stapleton opinion made reference to the decision of the district court in this case. Although the opinion states that the money seized in this case was “proven to be a part of a current gambling operation” our review of the record and the opinion of the district court indicate the contrary, as will be discussed infra.

      . 454 F.2d at 1222.

      . As the Kaisers have disclaimed any rights, title or interest in the $265,000. there can be no question but that the sum is Morinrity’s.

      . State of New Jersey v. Kaiser, 338 F. Supp. 42, 45 (D.N.J.1971).


author: ADAMS, Circuit Judge.

text:
    UNITED STATES of America, ex rel. Isiah MACON, Appellant, v. Howard YEAGER, Principal Keeper of the New Jersey State Prison.
    No. 72-1170.
    United States Court of Appeals, Third Circuit.
    Submitted Oct. 17, 1972.
    Argued on Reconsideration Jan. 17, 1973.
    Decided March 30, 1973.
    Gary A. Kroop, Stepacoff, Koch & Kroop, Perth Amboy, N. J., for petitioner-appellant.
    Terry Philip Green, New Brunswick, N. J., for appellee.
    Before ADAMS and GIBBONS, Circuit Judges and LAYTON, District Judge
   OPINION OF THE COURT

ADAMS, Circuit Judge.

In this appeal, the petitioner seeks review of a decision by the district court denying his application for a writ of habeas corpus. This Court is urged to hold that petitioner’s constitutional rights were violated and that error, not harmless in nature, was committed, when at his state trial, the prosecutor commented during his summation to the jury the petitioner consulted an attorney the day after the alleged crime was committed and suggested that from this the jury should question the innocence of petitioner.

Petitioner, Isiah Macon, was convicted in state court of manslaughter and sentenced to serve a term of not less than seven nor more than ten years. It appears that petitioner and one Abrahms had been in a minor traffic accident in New Brunswick, New Jersey. The deceased, Ralph Sasso, arrived at the scene of the accident and became' involved in the discussion between Macon and Abrahms. Both Sasso and Macon had been drinking that evening. During the ensuing altercation Sasso was killed by Macon’s gun.

The details of the events leading up to Sasso’s death are in dispute. The state’s evidence indicates that when, in the course of the argument, Sasso placed his hand on Macon’s shoulder, Macon stepped back, drew a gun, shot Sasso twice, and then drove away with friends. Petitioner’s version of the events indicates that Sasso interfered in a racially abusive and aggressive manner, punched Macon twice, assaulted Macon with the help of friends, and was shot by Macon’s gun, which was fired accidentally by Macon during the course of the struggle.

It is uncontradicted that after the incident, Macon and his friends drove away and Macon instructed them to give no statements and to take no action until he had consulted his attorney. Macon testified that, alone, he then drove aimlessly around, threw the gun out the car window, parked his car in a place he could not recall, walked home, put his blood-stained shirt away, went to bed, and the next morning telephoned his lawyer and was later arrested.

In view of the different accounts of what had happened at the time of the shooting, it thus became crucial for the jury to determine which characterization of the facts was true, the state’s or Macon’s. If the jury credited the state’s evidence, it could very well have brought in a verdict of murder. On the other hand, a belief in petitioner’s testimony and other defense evidence might have supported the view that Sasso’s death was either accidental or the result of Macon’s attempt to repel aggression.

During his summation to the jury, the prosecutor commented upon Macon’s actions following the shooting incident:

“Then what does he do? He drives along and can’t tell us where. The gun goes out the window. An act of innocence?
“The car is left somewhere and he doesn’t remember where. An act of innocence ?
“He goes home and puts the shirt down in the chest, a torn shirt. Then he goes to bed. He says he had trouble sleeping. He gets up the next morning and lo and behold, what does he do? He calls his lawyer. These are acts of innocence? (Emphasis added)
“I say, ladies and gentlemen, his story is implausible, impossible and you can judge by his own conduct, unbelievable.” (Emphasis added)

The defendant made no objection to the comment and did not request the trial judge to offer any instruction to the jury regarding it.

Macon’s appeal of his manslaughter conviction to the Appellate Division of the New Jersey Superior Court was rejected. The conviction was later affirmed by the New Jersey Supreme Court, State v. Macon, 57 N.J. 325, 273 A.2d 1 (1971), which lowered his term of incarceration from seven to ten years to two to seven years.

Having exhausted his state remedies, Macon sought federal habeas corpus relief, asserting that the prosecutor’s statement about his call to a lawyer violated his Sixth Amendment right to counsel, as applied to the states through the Fourteenth Amendment. The district court denied the writ, holding that, although constitutional error was committed, “the effect on the trial was not sufficiently prejudicial as to require the granting of petitioner’s request for the Writ.” 336 F.Supp. at 71.

It should be noted that petitioner does not argue that he was denied counsel or that his defense was presented by a lawyer of less than adequate ability. Rather, Macon claims that the prosecutor’s statement concerning his telephone call to counsel sought, or at least may reasonably be expected to have tended, to raise in the minds of the jurors an inference of guilt and, as a result, penalized him for the exercise of his constitutional right to counsel.

New cases deal directly with the question whether a prosecutor’s comment to the jury concerning a defendant’s exercise of the right to counsel is constitutional error. The district court concluded that Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), presented a situation sufficiently analogous to require recognition that constitutional error was committed here.

In Griffin, the prosecutor stressed the defendant’s failure to take the stand and urged upon the jury the inference that such failure demonstrated the defendant’s inability to deny his guilt. Holding such prosecutorial comment violative of the Fifth Amendment privilege against self-incrimination, the Supreme Court deemed the statement “a penalty imposed by the courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.” 380 U.S. at 614, 85 S.Ct. at 1232.

The Griffin Court focused its inquiry upon whether the petitioner had been .“compelled . . . to be a witness against himself,” U.S.Const. Amend. V, whereas in the present case, the relevant constitutional provision called into question is the Sixth Amendment right to counsel. For the purpose of the “penalty” analysis, however, we perceive little, if any, valid distinction between the privilege against self-incrimination and the right to counsel. It can be argued, with equal vigor and logical support, as to. either the Griffin situation or the present case, that a prosecutor’s comment seeking to raise in the jurors’ minds an inference of guilt from the defendant’s constitutionally protected conduct constitutes a “penalty” on the free exercise of a constitutional right.

If we were writing on- a tabula rasa, the “penalty” argument perhaps could be examined from different viewpoints. One mode of analysis would focus upon the person asserting that his rights have been “penalized” and determine whether he has been adversely affected by the state’s use of his constitutionally protected conduct. An alternative analysis would focus upon the particular constitutional right in question and determine whether, and if so to what extent, the state’s use of constitutionally protected conduct has or will “burden” the right, i. e., deter the defendant or others from engaging in the particular constitutionally protected activity.

The Griffin majority has accepted the former analysis, at least in the criminal context. In contradistinction to the “absolutist” approach to the “penalty” question employed by Justice Douglas in Griffin, Justice Stewart, in a dissenting opinion in Griffin, urged utilizing an approach that would examine “the concept of compulsion [within] reasonable bounds,” 380 U.S. at 620, 85 S.Ct. at 1236, and would measure the advantages and disadvantages of a rule permitting the prosecutor or judge to comment upon a defendant’s silence at trial. His view, however, was not accepted by the majority.

It would appear that the “absolutist” Griffin approach to the “penalty” argument has been diluted somewhat in other contexts. See Shapiro v. Thompson, 394 U.S. 618, 634, 638 n. 21, 89 S. Ct. 1322, 22 L.Ed.2d 600 (1969) (right to travel interstate); Walker v. Yucht, 352 F.Supp. 85 (D.Dela., filed Dec. 6, 1972) (3-judge court). Whatever the proper “penalty” approach may be under different circumstances, however, Griffin holds broadly that, at least in the criminal context, the relevant question is whether the particular defendant has been harmed by the state’s use of the fact that he engaged in constitutionally protected conduct, not whether, for the particular defendant or for persons generally, the state’s reference to such aetivity has or will burden the exercise of the constitutional right. This particular “penalty” analysis would appear to apply equally to the present case as to the Griffin situation.

Thus we are constrained to agree with the district court that the prosecutor’s comment to the jury was constitutional error. However, we are unable to conclude, as the district court did, that such error was “harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The Supreme Court has stated that an error of constitutional dimension is not harmless if “there is a reasonable possibility that [it] might have contributed to the conviction.” Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963). The state must “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman, supra, 386 U.S. at 24, 87 S.Ct. at 828.

In the present case, because critical portions of the evidence were disputed, the credibility of the petitioner as a witness was a central issue. This is not a situation where the case against the petitioner was otherwise “so overwhelming” that the constitutional error did not, beyond a reasonable doubt, contribute to the conviction. Cf. Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). The prosecutor’s comment concerning Macon’s consultation with counsel the day after the shooting incident would appear to have been directed to, and may have had the effect of, raising in the jurors’ minds the inference that petitioner was, or at least believed himself to be, guilty. Such an inference might certainly tend to cause the jury to disbelieve Macon’s version of the story. Under these circumstances, the possibility of prejudicial impact is present and we, therefore, are unable to conclude that the prosecutor’s comment was “harmless beyond a reasonable doubt.”

We recognize that in reversing the district court’s harmless error ground for decision this Court may be thought to be simply substituting its subjective judgment for that of the district court and the state courts. Thus, the New Jersey Supreme Court, in a well-reasoned and articulate opinion by Chief Justice Weintraub, concluded, much like the district court judge, that the prosecutor’s comment was “thoroughly harmless” because “the point defendant attributes to the prosecutor was indeed pointless and a jury would readily understand this to be so. Nor does the result of the trial even faintly suggest harm. Defendant fared as well as he could have hoped.” 57 N.J. at 335, 273 A.2d at 6.

While the error may not have contributed to petitioner’s conviction, this Court is simply unable to conclude, on the basis of an independent examination of the record, that “there is [not] a reasonable possibility that [it] might have contributed to the conviction,” and this is the test mandated by the Supreme Court in Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963). Frequently, appellate courts are called upon, in performing an appropriate reviewing function, to determine whether any error that has been committed may be adjudged “harmless.” So often, this is an assignment not free from deep concern. But because it is required, we must resolutely and objectively discharge it, whatever our own personal predilections may be.

The judgment of the district court will be reversed, and the case remanded to the district court for action consistent with this opinion.

      . United States ex rel. Macon v. Yeager, 336 F.Supp. 69 (D.N.J.1972).

      . In addition to covering at some length the constitutional right and harmless error issues raised in the present appeal, infra, the New Jersey Supreme Court discussed the point that by failing to object and to request a disapproving instruction concerning the prosecutor’s comment, Macon waived his right to claim error. 57 N.J. at 333-335, 273 A.2d 1. Although the state has an interest in treating errors raised at trial differently from those not timely challenged, see Henry v. Mississippi, 379 U.S. 443, 452, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), federal courts considering habeas corpus petitions are not bound by the state procedural rule and must permit a petitioner to raise constitutional issues for the first time in the federal proceeding so long as state procedures have not been deliberately bypassed. See, e. g., Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). There is nothing in the record to indicate that any deliberate bypass occurred in this case. Accordingly, there is no warrant for remanding the cause to the district court to deal with this matter.

      . See Baker v. United States, 357 F.2d 11, 13-14 (5th Cir. 1966); Fagundes v. United States, 340 F.2d 673, 677 (1st Cir. 1965); Jones v. United States, 111 U.S.App.D.C. 276, 296 F.2d 398, 408-411 (1961) (Fahy, J. dissenting), cert. denied, 370 U.S. 913, 82 S.Ct. 1260, 8 L.Ed.2d 406 (1962); Commonwealth v. Haideman, 284 A.2d 757 (Pa.Sup.Ct.1971) (affirmed by equally divided court) (Roberts, J. dissenting); of. Sharp v. United States, 410 F.2d 969, 972-973 (5th Cir. 1969) (Brown, C. J. dissenting).

      . Evidence concerning Macon’s consultation with counsel was injected into the case by the prosecutor during cross-examination of petitioner:
      “Q. You told [your companion] not to tell anyone about this?
      “A. I said don’t say anything about it until I see my lawyer.
      “Q. When did you first get ahold of your lawyer?
      “A. The next morning.
      “Q. As to your arrest?
      “A. Before my arrest.
      “Q. When is the next time that you knew for sure that Mr. Sasso was shot?

        “A. When the police picked me up and take me to Somerset Jail down there.
      “Q. If that is so, why did you call [your lawyer] at seven o’clock before they picked you up? Why did you call your lawyer before they picked you up if that is so?


author: MERRILL, Circuit Judge:

text:
    Albert MENGARELLI, Petitioner-Appellant, v. UNITED STATES MARSHAL IN AND FOR the DISTRICT OF NEVADA, Respondent-Appellee.
    No. 71-1621.
    United States Court of Appeals, Ninth Circuit.
    March 30, 1973.

      Carl F. Martillaro, Carson City, Nev., M. E. Balt, Weehawkin, N. J., for petitioner-appellant.
    Bart M. Schouweiler, U. S. Atty., Las Vegas, Nev., for respondent-appellee.
    Before MERRILL, TRASK and WALLACE, Circuit Judges.
   MERRILL, Circuit Judge:

Following a jury trial, appellant was convicted of conspiracy to evade or defeat the federal excise tax imposed on wagers and to file false income tax returns. Judgment was affirmed on appeal. Mengarelli v. United States, 426 F.2d 985 (9th Cir. 1970). Appellant then sought to vacate his conviction under 28 U.S.C. § 2255. Following an evidentiary hearing his motion was denied, 325 F.Supp. 358. This appeal followed.

Appellant contends that in the course of his trial his constitutional rights were violated in two respects.

First, he alleges that the charge to the jury by the trial judge amounted to comment on appellant’s failure to testify in his own behalf.

Appellant’s defense consisted of only one witness who testified briefly as to appellant’s good character.

The district judge instructed the jury that “The law does not compel a defendant in a criminal case to take the witness stand and testify, and no presumption of guilt may be raised and no inference of any kind may be drawn from the failure of a defendant to testify.”

Further, during the course of the charge to the jury the court on six occasions instructed that “The law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.”

No objection to the charge was interposed and no request was made that such instructions not be given.

It is well established in this Circuit that in absence of objection it is not plain error to give the charge in question. United States v. Ballard, 418 F.2d 325 (9th Cir. 1969); United States v. Jones, 406 F.2d 1297 (9th Cir. 1969); Coleman v. United States, 367 F.2d 388 (9th Cir. 1966). Appellant contends, however, that reiteration of the charge in this case amounted to impermissible comment by the trial court upon his failure to testify.

We cannot agree.

The problem posed by the instruction is that it is a two-edged blade and that the jury in a particular case may react to either edge. Appellant would have us convert it into a one-edged blade and accept as matter of law the proposition that the more the charge is reiterated, the less attention the jurors will pay to it; that they will react more strongly to the fact that it is given at all, while paying no heed to the substance of that which is reiterated. We cannot accept this proposition. For all we know, in this case, reiteration may have been the only way to drive home to the jury the substance of the charge and to overcome the perhaps unforgettable fact that no defense had been tendered.

It is trial counsel for the defendant who is best able to appraise the jury; to gauge the effect upon them of failure of the defendant to take the stand or present evidence in defense and to judge how best to proceed under the circumstances. Failure to request that the charge not be given, or to object to its reiteration, can only be construed by us as trial strategy.

Second, appellant contends that he did not receive adequate representation by counsel.

The court below in this proceeding reviewed the competency of appellant’s attorney, as disclosed by the trial record, and concluded that a competent and professional job had been done. Our review of the record provides no basis for disagreement with this conclusion.

Appellant’s principal basis for his contention that representation was inadequate was counsel’s failure to object to the charge to the jury in the respects already discussed. Where counsel otherwise perform in a fully competent manner, a choice of trial tactics, even though deemed unwise in retrospect, can rarely be said to rise to the level of a deprivation of a constitutional right. Cf. Johnson v. Craven, 432 F.2d 418, 419 (9th Cir. 1970). We are wholly unable to conclude that the tactics adopted here were so clearly inappropriate as to deprive appellant of adequate representation.

Other complaints of the manner in which counsel conducted the defense as specified by appellant we find to be without substance.

Judgment affirmed.


text:
    Edward FALLIS, himself and on behalf of all Mormons in the U. S. Penitentiary, etc., Petitioner-Appellant, v. UNITED STATES of America et al., Respondents-Appellees.
    No. 72-3076
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 8, 1973.
    On Rehearing March 14, 1973.

      Edward Fallís, pro se.
    John W. Stokes, Jr., U. S. Atty., Anthony M. Arnold, Asst. U. S. Atty., Atlanta, Ga., for respondents-appellees.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

Appellant Fallís, a Mormon presently incarcerated at the federal penitentiary in Atlanta filed a petition for a writ of mandamus, alleging that the prison authorities were guilty of discrimination and harassment toward him and other members of his faith.

The District Court for the Northern District of Georgia entered an’order denying relief on all of petitioner’s alleged grounds save his claim of alleged discrimination in access to the telephone. Oh that issue, the court ordered the government to show cause within ten (10) days why this appellant should not be allowed equal access to the telephone.

' [1] The district court has not, as far as can be determined from the apparently complete record before us in this case, entered a final judgment which addresses this one reserved issue. The only order entered thus far is the one which expressly leaves this issue for later determination. Thus, the district court has not yet ruled on all of the alleged grounds for relief and the only order entered thus far cannot be appealed at this time. McLish v. Roff, 141 U.S. 661, 12 S.Ct. 118, 35 L.Ed. 893 (1891); Howell v. Terminal Railroad Association, 5 Cir. 1946, 155 F.2d 807.

Therefore, for lack of a final and thus appealable order, this appeal must be and is

Dismissed.

ON PETITION FOR REHEARING

It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby granted.

It appears to the court that a final order denying all relief was entered by the district court on January 12, 1973, although not transmitted to this court. We, thus, now have an appealable order and we find that this case is appropriate for summary disposition without oral argument.

Petitioner Fallís objects to various specified actions taken by federal penal authorities at the Atlanta facility, alleging an unconstitutional interference with the religious freedom of Mormons within that institution. First petitioner alleges that on one isolated occasion an elder of his church was not admitted to the prison. The facts clearly show that the sole reason for the nonadmission of the elder was that no advance clearance had been obtained by the regular approved elder who accompanied the visitor. Such clearance is required before visitors can enter unescorted by prison personnel. There is no allegation that this was anything more than an isolated instance of failure by the visitor to follow known rules.

Petitioner also objects to the refusal of prison authorities to allow Mormon “Family Home Evenings” whereby a Mormon elder and his family “adopt” a convict and visit him in prison for counseling. No other religions are allowed such “family visits” and facilities for such are not available. Thus, these first two practices of the federal authorities are allowable “minor restrictions” on appellant’s rights. See Walker v. Blackwell, 5 Cir., 1969, 411 F.2d 23; Elam et al. v. Henderson, 5 Cir., 472 F.2d 582 (opinion dated Jan. 15, 1973).

Appellant’s other contentions are without merit and the order of the district court is

Affirmed.


author: BREITENSTEIN, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. BOARD OF EDUCATION, INDEPENDENT SCHOOL DISTRICT NO. 1, TULSA COUNTY, OKLAHOMA, et al., Defendants-Appellants, Aaron Lee Smith et al., Intervenors-Appellees, Julie Wilkerson et al., Intervenors-Appellants.
    Nos. 72-1555, 72-1789.
    United States Court of Appeals, Tenth Circuit.
    April 10, 1973.
    John R. Scott, Atty., Dept, of Justice (David L. Norman, Asst. Atty. Gen., Brian K. Landsberg, Atty., Dept, of Justice, and Nathan G. Graham, U. S. Atty., on the brief), for plaintiff-appellee.
    David L. Fist, Tulsa, Okl. (C. H. Rosenstein, Tulsa, Okl., on the brief), for Board of Education, Independent School District No. 1, Tulsa County, Oklahoma, and others, defendants-appellants.
    Sylvia Drew, New York City (Jack Greenberg, James M. Nabrit, III, New York City, and James O. Goodwin, Tulsa, Okl., on the brief), for Aaron Lee Smith, and others, intervenors-appellees.
    C. B. Savage, Tulsa, Okl., submitted on brief for Julie Wilkerson, and others, intervenors-appellants.
    Before BREITENSTEIN and DOYLE, Circuit Judges, and KERR, District Judge.
   BREITENSTEIN, Circuit Judge.

This is another chapter in the history of the desegregation of the Tulsa, Oklahoma, public schools. The background and underlying facts are set out in our opinions in United States v. Board of Ed., Ind. S. D. No. 1, Tulsa Co., 10 Cir., 429 F.2d 1253, and 10 Cir., 459 F.2d 720. The only question now before us is whether the district court erred in denying the application of the Board of Education for a stay of an integration plan relating to certain elementary schools.

The trial court found that four of the Tulsa elementary schools were de jure segregated, and by a September 3, 1971, judgment ordered the school district to formulate a plan for the desegregation of these schools. We affirmed. See 459 F.2d 720. The Smith group of intervenors applied for certiorari on the question of whether other schools, determined to be de facto segregated, should also have been subject to the desegregation order. See 41 L.W. 3139. The certiorari application is still pending in the United States Supreme Court.

On November 15, 1971, the district submitted a desegregation plan which it proposed to implement for the 1972-73 school year. The plan called for the clustering and pairing of the affected black schools with predominately white schools. On December 27, 1971, the court approved the plan with minor modifications and ordered its implementation for the 1972-73 school year. No appeal was taken from this order. On May 3, 1972, the district petitioned the district court for a stay of the December 27 order.

The district contends that the implementation of the elementary school desegregation plan will have adverse effect on the district’s educational program and that the elementary school desegregation should await the completion and acceptance of a desegregation plan for the junior high schools. After an evidentiary hearing, the district court found that the plan could be implemented without making drastic reductions in the educational program of the district and without an adverse impact on all the students in the district, and denied the stay.

The district recognizes the heavy burden which it bears in trying to upset a denial of a stay of an order abolishing de jure segregation. The Supreme Court has emphasized the obligation of school districts to terminate dual school systems at once. Alexander v. Holmes County Board of Education, 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19; see also Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 14, 91 S.Ct. 1267, 28 L.Ed.2d 554. In essence the argument of the district is that its decision on educational priorities takes precedence over the mandate requiring desegregation. We believe that such a question of priorities is no longer open. See Brewer v. School Board of City of Norfolk, Virginia, 4 Cir., 456 F.2d 943, 947, cert. denied 406 U.S. 933, 92 S.Ct. 1778, 32 L.Ed.2d 136. The constitutional mandate must be obeyed.

The Wilkerson group of intervenors argues that the district court abused its discretion by not giving effect to § 803, P.L. 92-318, 86 Stat. 372, which provides that the effectiveness of an order requiring transportation of any student “for the purposes of achieving a balance among students with respect to race * * * ” shall be postponed until all appeals have been exhausted. We doubt the applicability of § 803 to a case such as that before us where the purpose is not to achieve balance but to end de jure segregation. See Drummond v. Acree, 409 U.S. 1228, 1229, 93 S.Ct. 18, 34 L.Ed.2d 33 (Powell, Circuit Justice). In any event the question is moot because this court’s decision affirming the district court order for the desegregation of the elementary schools was filed May 5, 1972, see 459 F.2d 720, and the time for certiorari has run. The pending certiorari application by the Smith group of intervenors concerns an unrelated issue. No appeal was taken from the December 27; 1971, order approving the desegregation plan for the elementary schools. Accordingly, there is no appeal pending which might bring § 803 into operation.

We are convinced that the district court did not abuse its discretion in denying the application for a stay.

Affirmed.


author: WILLIAMS, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ross William MONTGOMERY and Gordon Montgomery, Defendants-Appellants.
    No. 72-1801.
    United States Court of Appeals, Ninth Circuit.
    March 30, 1973.
    James T. Ford (argued), Philip V. Sarkisian, Sacramento, Cal., for defendants-appellants.
    William B. Shubb, Asst. U. S. Atty., (argued), Dwayne Keyes, U. S. Atty., Sacramento, Cal., for plaintiff-appellee.
    Before BROWNING and GOODWIN, Circuit Judges, and WILLIAMS, District Judge.

       Honorable Spencer Williams, United States District Judge, Northern District of California, sitting by designation.

   WILLIAMS, District Judge:

Defendants Ross Montgomery and Gordon Montgomery were convicted in the Eastern District of California of violating 18 U.S.C. § 1852. The statute provides in relevant part:

“Whoever cuts or wantonly destroys any timber growing on the public lands of the United States shall be fined not more than $1,000 or imprisoned not more than one year, or both. ,
This section shall not prevent any miner or agriculturist from clearing his land in the ordinary working of his mining claim or in the preparation of his farm, for tillage, or from taking the timber necessary to support his improvements, or the taking of timber for the use of the United States; nor shall it interfere with or take away any right or privilege under any existing law of the United States to cut or remove timber from any public lands.”

Defendants admit cutting down a tree on public lands but contend that they have a right to do so as members of the Pit River Indian Nation. This right, it is argued, stems from the aboriginal title claimed by the Pit River Indians in the public lands where the violation occurred.

The trial court held that the aboriginal title of the Pit River Indians to these lands has been extinguished. Citing a judgment of the Indian Claims Commission, the trial court found that the “Indian title” was legally extinguished (1) by the Private Land Claims Act of 1851 and (2) by the physical conquest by concentrated military action culminating in the Battle of the Infernal Caverns in 1867. [Memorandum and Order, at page 2, citing Pit River Indians v. United States, 7 Ind.Cl.Comm. 815 (1959)].

The defendants argue vigorously that the ruling is in error. However, this court need not express an opinion on the relative merits of these arguments as Congress did not intend to exclude the Pit River Indians from the proscriptions of 18 U.S.C. § 1852. A careful reading of the statute reveals that it was drafted by Congress with precision. It contains specfic exemptions for miners, farmers, and the United States. Aboriginal title is not exempted and defendants have not cited relevant authority to support their contention that it is a right or privilege within the meaning of 18 U.S.C. § 1852. In addition, the court notes that Congress has enacted a complex legislative scheme controlling the removal and sale of timber from Indian lands without reference to a right of aboriginal title. See 25 U.S.C. §§ 196, 399, 406 and 407.

The convictions are affirmed.

      . The concept of “aboriginal title” is defined by the Supreme Court as a right of occupancy to certain lands held by the Indians that is not recognized as ownership and may be terminated by the United States without compensation. Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 75 S.Ct. 313, 99 L.Ed. 314 (1955).


author: EAST, Senior District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Henry Martin RAMOS, Defendant-Appellant.
    No. 72-1520.
    United States Court of Appeals, Ninth Circuit.
    March 29, 1973.
    James M. McCabe (argued), Benjamin F. Rayborn, Fed. Defenders, San Diego, Cal., for defendant-appellant.
    Mac Amos, Jr., Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., James W. Meyers, Asst. U. S. Atty., Stephen G. Nelson, San Diego, Cal., for plaintiff-appellee.
    Before CHAMBERS and HUFSTEDLER, Circuit Judges, and EAST, Senior District Judge.

       Honorable William G. East, Senior Judge, United States District Court for the District of Oregon, sitting by designation.

   EAST, Senior District Judge:

On March 31,1971, the appellant, Henry Martin Ramos (Ramos), and a co-defendant, Richard Steven Martinez (Martinez), were indicted on two counts. Count two charges Ramos and Martinez with intent to defraud the United States by knowingly receiving, concealing and facilitating the transportation and concealment of some 108 pounds of marijuana, in violation of 21 U.S.C. Section 176a.

The defendants were tried by the District Court without a jury. Ramos and Martinez each testified generally to Ramos’ innocence. The District Court found both defendants guilty and sentenced each to custody.

This court has jurisdiction pursuant to 28 U.S.C. Sections 1291 and 1294. We affirm.

The evidence presented on the government’s case in chief we narrate as follows:

On March 20, 1971, an agent of the Border Patrol stopped a 1966 Mustang at a checkpoint on Interstate 8 near Ocotillo, California, approximately three miles from the Mexican border, in order to inspect the vehicle for the presence of aliens. Martinez was driving the car and Ramos was riding as a passenger.

After stopping the vehicle the agent directed it to the side of the road, toward a second agent who was observing the vehicle being stopped for his inspection of the car. The agent asked the driver to open the trunk and he replied that he did not have the key. The occupants were asked to exit the vehicle and step to the rear of the car. The agent removed the rear seat and detected the odor of marijuana. Forty-nine kilos of marijuana were removed from the trunk after an agent had forced it open.

Both defendants were placed under arrest and handcuffed. Martinez was placed in a patrol car near the load car where he remained until removed from the scene. Ramos was first placed on a dirt pile near the side of the road, some ten feet distant, where he remained until custom agents removed him to a patrol vehicle approximately 50 to 60 feet distant from the area of the load car.

Some 30 minutes later, a custom agent (Polish), who was watching Ramos, started to return to the area of the load car upon summons, when he saw a key lying in the dirt near the roadway approximately ten feet distant from the open door of the vehicle in which Ramos was held. Martinez was never seen in the area where the key was found. Subsequently the key was determined by a locksmith to be the key to the trunk of the load vehicle.

We examine the evidence under these rulings of this Circuit:

“This court has held that when one drives a car laden with contraband, there is a substantial basis from which the trier of fact may infer that the driver has knowing possession of the contraband. United States v. Dixon, 460 F.2d 309 (9th Cir. 1972); United States v. Ascolani-Gonzalez, 449 F.2d 159 (9th Cir., 1971);
“It is equally well established that a passenger may not be convicted unless there is evidence connecting him with the contraband, other than his presence in the vehicle. United States v. Thomas, 453 F.2d 141, 143 (9th Cir., 1971), cert. denied, Lucas v. United States, 405 U.S. 1069 [92 S.Ct. 1516], 31 L.Ed.2d 801 (1972); Bettis v. United States, 408 F.2d 563, 567 (9th Cir. 1969).” See United States v. Zamora-Corona, 465 F.2d 427 (9th Cir. 1972); “On an appeal based upon insufficiency of evidence, the evidence produced at the trial must be viewed in the light most favorable to the Government, together with the reasonable inferences which may be drawn therefrom.” Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Crosson, 462 F.2d 96 (9th Cir. 1972);
“Possession of marijuana may be constructive rather than actual and such possession may support a conviction.” Moreover, “Possession may be established by circumstantial evidence.” United States v. Zumpano, 436 F.2d 535, 538 (9th Cir. 1970). “The word ‘possession’ as used in [Sec.] 176a, embraces both actual and constructive possession.” Petley v. United States, 427 F.2d 1101, 1106 (9th Cir. 1970), cert. denied, 400 U.S. 827, 91 S.Ct. 55, 27 L.Ed.2d 57, and
“Circumstantial evidence is not inherently less probative than direct evidence.” United States v. Nelson, 419 F.2d 1237, 1239 (9th Cir. 1969).

It is manifest that the possessor of the key to the trunk of the load car had ready control of the contraband therein, and we conclude that the evidence was sufficient to warrant the finding of guilt.

The circumstance of the site of the key in the close proximity of Ramos and at a distance from Martinez inexorably enmeshed Ramos with the key. Further, the trier of the facts could reasonably and rationally infer therefrom that Ramos had possession of the key from sometime before he left the load car until he with scienter surreptitiously divested himself of it at the finding site.

The ruling of the District Court was not compromised by the subsequent self-serving testimony of the defendants.

“Trier of fact is not compelled to accept and believe the self serving stories of vitally interested defendants. Their evidence may not only be disbelieved, but from the totality of the circumstances, including the manner in which they testify, a contrary conclusion may be properly drawn.”

United States v. Cisneros, 448 F.2d 298, 305 (9th Cir. 1971).

The judgment of conviction is affirmed.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Calvin STUBBS and James Jackson, Defendants-Appellants.
    No. 72-1742.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 8, 1973.
    Decided April 6, 1973.

      Dennis W. Archer, Detroit, Mich., for defendants-appellants; Hall, Stone, Allen, Archer & Glenn by Elliott S. Hall, Alex J. Allen, Jr., Detroit, Mich., on brief.
    Jill Wine Volner, Washington, D. C., for plaintiff-appellee; Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., Gerard P. Martin, U. S. Dept. of Justice, Washington, D. C., on brief.
    Before EDWARDS and McCREE, Circuit Judges, and YOUNG, District Judge.

       Honorable Don J. Young, United States District Judge, Northern District of Ohio, sitting by designation.

   PER CURIAM.

Appellants Stubbs and Jackson were convicted before a United States District Judge in the Eastern District of Michigan, Southern Division, of interference with commerce by means of extortion and of conspiracy to so interfere, in violation of the Hobbs Act, 18 U.S.C. § 1951 (1970). Both were found guilty as principals under 18 U.S.C. § 2 (1970). Stubbs received two seven-year concurrent sentences, and Jackson received two five-year concurrent sentences. Jackson was a building contractor and Stubbs was founder and president of Local 124, United Construction and Trades Union, which was a Negro building trades union organized in opposition to the predominantly white Detroit Building Trades Council.

Much of appellants’ brief on appeal is devoted to the claim that Jackson was pursuing a laudable activity in providing needed housing and Stubbs was pursuing a similarly laudable activity in providing needed employment for black tradesmen. The testimony at trial, however, also provided the jury with ample evidence upon which to conclude (as it obviously did) that Stubbs and Jackson conspired to require a man named Sledge and an attorney named Fechheimer to pay $43,000 to Jackson in connection with a building project called the Gladstone Project (which sum Sledge and Fechheimer obviously did not think was owed), and that Stubbs threatened repeatedly to kill Sledge and/or Fechheimer, and offered in addition to kill Sledge’s wife and eight children unless this payment was made.

The principal legal defense on appeal is that Jackson didn’t make any threats and, hence, was entitled to have his motion for acquittal granted. There was testimony, however, from which the jury could have found that Jackson made the first demand upon Sledge for the $43,000; that subsequently he told Stubbs about his demand and about Sledge’s refusal; that he also was responsible for bringing Stubbs to a meeting in Fechheimer’s office where threats previously made to Sledge were repeated by Stubbs, and that Jackson walked out of the meeting with the $43,000 which had been extorted by Stubbs’ threats. Under these facts we find no error in the District Judge’s denial of the motion for acquittal.

Appellants also seek reversal and new trial, alleging that testimony given by those threatened about Stubbs’ reputation for violence was not admissible. The rule in extortion cases differs from the general rule however. The Second Circuit has stated it as follows:

In a Hobbs Act case, the Government must prove that property was extorted from the victim by threats of violence or because of the victim’s fear. Hence appellant’s reputation for violence is relevant as one of the crucial factors in determining this element. Inasmuch as the prosecution provided appellant with advance warning that this evidence would be introduced and the district court carefully cautioned the jury on the limited use of this testimony, there was no error. United States v. DeMasi, 445 F.2d 251, 257 (2d Cir.), cert. denied, 404 U.S. 882, 92 S.Ct. 211, 30 L.Ed.2d 164 (1971).

See also United States v. Tropiano, 418 F.2d 1069 (2d Cir. 1969), cert denied 397 U.S. 1021, 90 S.Ct. 1262, 25 L.Ed.2d 530 (1970); Carbo v. United States, 314 F.2d 718 (9th Cir. 1963); United States v. Marchesani, 457 F.2d 1291 (6th Cir. 1972). Additionally, this court has just considered the same issue and followed the reasoning of the above-cited decisions. United States v. Billingsley, 474 F.2d 63 (6th Cir. 1973).

We find no reversible error in the District Judge’s instructions to the jury. There was no objection at trial to the instructions now objected to, and we find that they contain no plain error. Fed.R.Crim.P. 30, 52(b).

The judgment of the District Court is affirmed.


text:
    Anthony B. CATALDO and Ada W. Cataldo, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
    No. 411, Docket 72-1595.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 24, 1973.
    Decided March 27, 1973.

      Anthony B. Cataldo, New York City, for appellants.
    Joseph M. McManus, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Bennett N. Hollander, Tax Division, Department of Justice, Washington, D. C., on the brief), for appellee.
    Before MOORE, HAYS and MANSFIELD, Circuit Judges.
   PER CURIAM:

This is an appeal from a decision of the United States Tax Court, 30 T.C.M. 934 (1971), which determined that there was a deficiency in the amount of $1,-467.91 in the income tax returns of the taxpayers-appellants for the calendar year 1966. The Tax Court also imposed a penalty of $73.40 for the negligence of the taxpayers in keeping their books and records and in preparing their returns (Section 6653(a) of the Internal Revenue Code of 1954). We affirm.

Appellant Anthony Cataldo is a cash basis taxpayer who has been a practicing attorney in New York State for many years. During 1966 Cataldo received a number of payments of amounts due on behalf of clients. From such payments Cataldo deducted his legal fees. On his income tax return for 1966 Cataldo reported each such deduction as a legal fee equal to 25 per cent of the total amount of money received. Cataldo claimed that an additional amount from each of the payments received on behalf of clients was “reimbursement” for expenses incurred in previous years in the handling of the matters for which the payments were made. The remainder of the payments after the deductions for legal fees and for expenses was paid out to the clients in whose behalf the payments were made.

On his 1966 tax return appellant Cataldo also claimed certain items as deductions for expenses incurred in the ordinary course of his business. The Commissioner objected to these deductions. The Commissioner contends, and the Tax Court agreed, that prior to the trial of this case the taxpayer and the Commissioner entered into a binding oral agreement regarding the disputed deductions for expenses. Cataldo claims that no such binding agreement exists.

The Tax Court found that the taxpayer had unreported income in the amount of $427.48 representing the difference between the amount shown by the evidence actually to have been deducted as legal fees and the 25 per cent deductions reported. The Tax Court also disallowed the deduction of income of $1,327.37 reported as “reimbursement” for expenditures on behalf of his clients. Finally, the Tax Court upheld the imposition of a 5 per cent negligence penalty — amounting to $73.40 — pursuant to Section 6653 (a) of the Internal Revenue Code of 1954.

Taxpayer’s motions for reconsideration of the findings of fact and for a new trial were denied and this appeal followed. We affirm the challenged findings of the Tax Court.

The taxpayer has virtually conceded that he failed to report $427.88 of the amount he received as legal fees.

The taxpayer on his current returns deducts his expenses in handling his legal accounts as these expenses occur and does not wait to charge these amounts against the payments when they are received in subsequent years. The Commissioner claimed that Cataldo had already deducted his expenses in the years prior to 1966 when the expenses were incurred and that his deductipn of the expenses from payments received in 1966 was an unjustifiable duplication. Since the taxpayer failed to prove (for example by presenting his returns for prior years) that the reimbursements were not duplicative, the Tax Court’s determination in favor of the Commissioner on this issue must be affirmed.

The record is clear that on February 23, 1971, the parties agreed to settle the question of the amounts of certain disputed expense deductions claimed by the taxpayer. There was no suggestion that the agreement was contingent upon the settlement of all of the issues in the case as the appellant vigorously argues. We therefore find that the agreement was valid and binding on the taxpayer.

Finally, there is ample evidence in the record to support the Commissioner’s claim that the taxpayer was negligent in keeping books and records and in preparing his income tax returns and to sustain the imposition of the penalty provided by Section 6653(a).

      . Section 6653(a) reads in pertinent part:
      “Section 6653. Failure to pay taw

      (a) Negligence or intentional disregard of rules and regulations with respect to income or gift taxes. — If any part of any underpayment (as defined in subsection (c) (1)) of any tax imposed by subtitle A or by chapter 12 of subtitle B (relating to income tax and gift taxes) is due to negligence or intentional disregard of rules and regulations (but without intent to defraud), there shall be added to the tax an amount equal to 5 percent of the underpayment.”

      . Appellant Ada Cataldo is a party to these proceedings solely by virtue of having filed a joint Federal income tax return with her husband Anthony Cataldo. Therefore, Anthony Cataldo will be referred to in this opinion as the taxpayer.


author: GODBOLD, Circuit Judge:

text:
    Rudolph A. SCHULTZ, Plaintiff-Appellee, v. EVELYN JEWELL, INC., and Steamship Mutual Insurance Company, Defendants-Appellants.
    No. 71-3617.
    United States Court of Appeals, Fifth Circuit.
    April 18, 1973.
    Michael L. McAlpine, New Orleans, La., for defendants-appellants.
    James A. Wysocki, New Orleans, La., for plaintiff-appellee. .
    Before GEWIN, BELL and GODBOLD, Circuit Judges.
   GODBOLD, Circuit Judge:

Plaintiff filed suit claiming damages for injuries sustained in an assault by Pettis, a fellow crew member of a shrimp trawler, claiming unseaworthiness of the vessel and negligence of its owners. In a jury trial defendant’s motion for a directed verdict was denied. The jury found the vessel seaworthy but the owners negligent and plaintiff 20% eontributorily negligent, and awarded damages to plaintiff.

If there survives an action for negligence, not swallowed up by the doctrine of unseaworthiness for employment of a “defective crew,” Clevenger v. Star Fish & Oyster. Co., 325 F.2d 397 (CA5 1963), the plaintiff did not present sufficient evidence to take the negligence issue to the jury. The court erred in denying defendant’s motion for a directed verdict, consequently the case must be reversed.

The only crew members of the vessel were the captain, plaintiff and Pettis. The vessel returned to port after a fishing trip and was docked. Pettis was allowed to live aboard the boat when it was at dock. The captain, and then plaintiff, went ashore. Plaintiff returned later to retrieve a cigarette lighter and found Pettis and friends from other vessels dining on fish from the trawler’s catch. An argument ensued between plaintiff and Pettis over division of the catch, and the affray ensued. According to the evidence Pettis had drunk two cans of beer. The only evidence of negligence by the captain was that he had introduced, or allowed the introduction, of either two cans or a six-pack of beer aboard the vessel; he had docked the shrimper near a saloon and left plaintiff and Pettis aboard unsupervised; and he had failed to designate how the catch should be divided. This was insufficient evidence to permit submission of negligence to the jury. Boeing v. Shipman, 411 F.2d 365 (CA5 1969). Plaintiff also refers to negligence based on the theory that his assailant was a person of known vicious character or one whom the master or officers should have known was of vicious character. 2 Norris, Law of Seamen, § 691 p. 397; Kyriakos v. Goulandris, 151 F.2d 132 (CA2 1945). The only evidence to which plaintiff can point in support of such a theory is that Pettis was a large and powerful man, bigger and stronger than plaintiff, and possessed of a full set of whiskers which caused him to be known as “the Beard.” This is no evidence at all of viciousness.

Reversed.

      . There was no evidence that the captain knew that Pettis was a drinking man.


text:
    Robert L. CARDILLO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 72-2934
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 28, 1973.

      Joel Robrish, Miami, Fla. (Court appointed but not under ACT), for petitioner-appellant.
    Robert W. Rust., U. S. Atty., Raymond B. Ray, Asst. U. S. Atty., Miami, Fla., for respondent-appellee.
    Before WISDOM, AINSWORTH and CLARK, 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:

In this petition under 28 U.S.C. § 2255 (1971), Robert L. Cardillo seeks to withdraw a guilty plea accepted by the District Judge on September 17, 1971, which resulted in a three-year sentence to run consecutively with a fifteen-year sentence imposed in another ease. Petitioner alleges, that his plea was involuntarily entered in violation of the principle announced in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), because he was induced to enter the plea by an unkept promise of a concurrent sentence. The promise was made by the Government when Cardillo first pled guilty on July 28, 1971. However, prior to sentencing Cardillo made a motion to withdraw his plea, and the motion was granted due to confusion about the agreement. When Cardillo came to trial on September 17, 1971, he once again asked to plead guilty, this time knowing he did so without the benefit of any promise from the Government regarding a concurrent sentence.

Affirmed.


author: HASTIE, Circuit Judge.

text:
    WHITNEY NATIONAL BANK OF NEW ORLEANS, Appellant, v. TRANSAMERICA INSURANCE COMPANY, et al.
    No. 71-1987.
    United States Court of Appeals, Third Circuit.
    Argued Oct. 3, 1972.
    Submitted En Banc Dec. 13, 1972.
    Decided March 14, 1973.

      John J. Monigan, Stryker, Tams & Dill, Newark, N. J., William T. Sutphin, Princeton, N. J., for appellant.
    Charles H. Hoens, Jr., Lum, Biunno & Tompkins, Newark, N. J., for appellees.
    Before SEITZ, Chief Judge, and KALODNER, HASTIE, VAN DUSEN, ALDISERT, ADAMS, and GIBBONS, Circuit Judges.
   OPINION OF THE COURT

HASTIE, Circuit Judge.

A national banking corporation, domiciled and doing business in Louisiana, filed this action for breach of contract against a group of insurance companies, severally incorporated in states other than Louisiana, that had joined in insuring the bank against certain risks. Invoking diversity jurisdiction, the Louisiana plaintiff elected to sue in the District Court for the District of New Jersey.

The contract in question is a standard “Bankers Blanket Bond”. The bank suffered the loss in suit when a borrower defaulted and warehouse receipts that the bank had accepted as security for the loan proved to be worthless or, at best, worth only a small fraction of their apparent value. Whether the bond insures against this loss depends essentially upon the interpretation of a clause in the bond that protects the insured against loss through extending credit “on the faith of . any written instruments which prove to have been counterfeited . . . . ”

Holding that the warehouse receipts were not “counterfeited”, the district court denied recovery. When this appeal from that decision was argued to a panel of this court question arose about the correctness of an earlier relevant, and perhaps controlling, decision of this court. Accordingly, this appeal has been submitted to the court en banc for decision.

This dispute arises out of secured loans aggregating more than $3,400,000 that the plaintiff bank made to Allied Crude Vegetable Oil Refining Corp. in September, 1962. As collateral the bank accepted documents which on their face were duly executed non-negotiable warehouse receipts of warehousing and tank storage companies that were wholly owned subsidiaries of American Express Co. Subsequently, new warehouse receipts were substituted for those originally deposited. Each of the warehouse receipts showed on its face that a specified large quantity of crude soybean oil was stored and being held at a specified place by the issuing warehousing company. However, after the borrower defaulted it was discovered that at the time the warehouse receipts were issued the oil actually in the warehousing company’s field storage tanks was at most a small fraction of the amount shown in the warehouse records upon which the pledged warehouse receipts had been based.

The warehousing companies administered tank farms with capacity for storage of hundreds of million pounds of oil. During a normal week millions of gallons of oil would be accepted for storage and pumped into the field tanks and millions of gallons would be claimed by holders of warehouse receipts and pumped out for delivery to them. No particular oil was segregated and held for a particular bailor. Rather, the responsibility of the bailee was to hold in its custody at all times a total quantity of oil equal to the aggregate quantities shown on outstanding warehouse receipts. The wrongdoing in this case involved repeated incorrect measurements and false reports of the amounts of oil in storage. Apparently this gigantic swindle was contrived by the bailor, Allied Crude Vegetable Oil Refining Corp., with the witting or unwitting assistance of employees of the warehousing bailee. The district court made no finding as to details of the scheme.

As has been stated, the bond in suit insured the bank against losses suffered by reliance upon instruments “which prove to have been counterfeited .” The bond also contained general language excluding from its coverage losses resulting from fraud, except as otherwise specifically provided. All parties recognize that the loss in suit resulted from a gross fraud. However, if the warehouse receipts upon which the bank relied were, as the bank contends, “counterfeited” within the meaning of the bond, the insurer is liable.

The parties agree that in this diversity case the interpretation of the contract of insurance is governed by Louisiana law. But neither the research of the parties nor our own has disclosed anything in the Louisiana statutes or decisions that provides decisive guidance to the interpretation of “counterfeited” in the present context.

In Fidelity Trust Co. v. American Surety Co., interpreting the same language of a standard bankers bond in a case governed by Pennsylvania law, this court concluded that “counterfeited” did cover certain assignments of accounts receivable. Each account was evidenced by a duplicate'invoice, duly executed on the borrower’s regular billing form and unexceptional on its face. However, some of these invoices were fraudulent in that they represented purported sales that in fact had not taken place.

In that case we found nothing in Pennsylvania law that would guide us in the interpretation of the bankers bond. Thus our problem of interpreting the bond was essentially like the one that confronts us now. We held that, where no sale had in fact been made, a duly executed invoice for a fictitious transaction was “counterfeited”.

However, almost all of the courts that have had occasion to interpret the standard bankers bond since that time have reached a contrary result. These cases decide that “counterfeited” connotes spurious or imitative execution of a document as distinguished from the document's explicit or implicit misrepresentation of facts other than the genuineness of execution.

The cited cases constitute impressive authority contrary to our earlier decision. We are persuaded that they are soundly reasoned. Accordingly, we no longer will follow Fidelity Trust Co. v. American Surety Co.

The judgment will be affirmed.

      . The then standard bond did not define “counterfeited”. We are told that “counterfeited” is defined in the form of bond now used.

      . Fidelity Trust Co. v. American Surety Co., 3d Cir. 1959, 268 F.2d 805.

      . Supra note 2.

      . Maryland Casualty Co. v. State Bank & Trust Co., 5th Cir. 1970, 425 F.2d 979 (warehouse receipts); First National Bank of Memphis v. Aetna Casualty & Surety Co., 6th Cir. 1962, 309 F.2d 702 (warehouse receipts); Exchange National Bank of Olean v. Insurance Co. of North America, 2d Cir. 1965, 341 F.2d 673 (invoices); North Carolina National Bank v. United States Casualty Co., 4th Cir. 1963, 317 F.2d 304 (invoices); Capitol Bank of Chicago v. Fidelity and Casualty Co. of N. Y., 7th Cir. 1969, 414 F.2d 986 (accounts receivable); State Bank of Poplar Bluff v. Maryland Casualty Co., 8th Cir. 1961, 289 F.2d 544 (chattel mortgages). But cf. United Pacific Ins. Co. v. Idaho First National Bank, 9th Cir. 1967, 378 F.2d 62 (cashier’s check).


author: PER CURIAM: HUNTER, District Judge:

text:
    William Ernest DICKERSON, Individually, etc., et al., Plaintiffs-Appellants-Cross-Appellees, v. CONTINENTAL OIL COMPANY, Charles N. Duddleston d/b/a Duddleston Welding Company, Defendants, and Insurance Company of North America, Intervenor-Appellee-Cross-Appellant.
    No. 72-2479.
    United States Court of Appeals, Fifth Circuit.
    April 6, 1973.
    William B. Baggett, R. Scott McClain, Lake Charles, La., for plaintiffs-appellants.
    Thomas M. Bergstedt, Lake Charles, La., for intervenor-appellee.
    Before JOHN R. BROWN, Chief Judge, and THORNBERRY and MORGAN, Circuit Judges.
   PER CURIAM:

The narrow question is whether on remand following an earlier appeal, Dickerson v. Continental Oil Company, 5 Cir., 1971, 449 F.2d 1209, the trial court could now declare that interest should be allowed on the amounts admittedly due the Intervenor compensation carrier under the Longshoremen’s Act. How this came about and how the trial court answered it is set out in Judge Hunter’s opinion in the Appendix.

We get to the same result but by a different route.

It is perfectly plain that without characterizing the omission of interest from the judgment as a “clerical mistake” or otherwise, the trial Judge was clearly of the view that on usual principles of subrogation, both statutory and equitable, to make it whole the carrier was entitled to interest on the sums paid out in medical and compensation benefits.

Although we may assume without deciding that upon the issuance of our mandate of remand (which did not affect this portion of the judgment, which was silent as to interest, note 1, supra) the trial court could not add to or modify that portion of the judgment to provide interest or even entertain a 60(b) or similar post-remand request to do so without first seeking permission from the Appellate Court, Rogers v. Consolidated Rock Products Co., 9 Cir., 1940, 114 F.2d 108; Rhodes v. Houston, D.C.Neb., 1966, 258 F.Supp. 546, cert. denied, 397 U.S. 1049, 90 S.Ct. 1382, 25 L.Ed.2d 662; Wilson Research Corp. v. Piolite Plastics Corp., D.C.Mass., 1964, 234 F.Supp. 234; Albion-Idaho Land Co. v. Adamas, D.C. Idaho, 1945, 58 F.Supp. 579, this consequence flows from our mandate, not because of any actual or supposed restrictions on F.R.Civ.P. 60(b) post-judgment relief.

Since terms, as such, no longer exist, this Court has the innate power to recall and then relax its mandate on a proper showing. Meredith v. Fair, 5 Cir., 1962, 306 F.2d 374. The more orderly way is, of course, for the party affected to formally petition this Court to relax or modify its mandate to permit the trial court to take the requested action. But in a structure of rules which at every stage envisages the attainment of substantial justice with a minimum of technicalities, there is no insurmountable need for such a formal motion. We can, and as we have before, Bros. Incorporated v. Davidson, 5 Cir., 1964, 330 F.2d 65, 67, we treat the present appeal as in effect, a post-judgment-post-mandate request.

Assuming, without deciding, that the District Court’s order was ineffectual, we treat the appeal as a request to relax our mandate which we grant and thereby infuse vitality in order. See, Rogers v. Consolidated Rock Products, supra.

Affirmed.

APPENDIX

HUNTER, District Judge:

Judgments were rendered by this court on November 14, 1969. Plaintiffs timely filed a motion to amend the judgment in their favor to allow interest from date of judicial demand. Our final judgment read :

“The plaintiffs’ motion to allow interest from date of judicial demand rather than date of judgment is granted, and the original judgments are modified in that particular.”

Appeals were taken to the Court of Appeals for the Fifth Circuit. Judgments were affirmed on September 28, 1971. 449 F.2d 1209. Defendants have now paid off the full amount of the judgments in each case and obtained releases from all plaintiffs and from the intervening compensation insurer, IN A. Pursuant to Louisiana law the plaintiffs were paid in accordance with their prayer for legal interest from date of judicial demand on the entire amount awarded in each case.

INA contends that it is entitled to that part of the judicial interest attributable to its intervention. Plaintiffs, on the other hand, have paid to intervenor the principal amount of the intervention in each case. The amount in dispute is in excess of $15,000. This money has been placed in the Registry of the Court pending judicial determination of the dispute.

Plaintiffs correctly assert that INA is now trying to amend, rewrite and revise a judgment dated March 4, 1970, affirmed September 28, 1971. It is true that intervenor made no complaint as to the non-allowance of interest by post-trial motion or by appeal, although intervenor did appeal from other aspects of the judgment adverse to it.

Plaintiffs’ argument that intervenor’s present endeavor fails under Rule 59(e) and Rule 60 has merit. Especially is this true in view of the Fifth Circuit’s opinion in Transit Casualty Company v. Security Trust, 441 F.2d 788, to the effect that 60(b)(1) and 60(b) (6) are not pari passu and are mutually exclusive. Nevertheless this court has broad equitable power under 60(b)(6) which may be invoked to prevent extreme hardship. I have grave reservations as to whether the situation here falls within that category, but considering the action here to be an independent one seeking relief to reform a judgment (West Va. Oil v. Breece Lumber, 5 Cir., 213 F.2d 702), we will conclude as follows:

1. INA is to receive interest (5% in this ease) from date of their intervention until paid on all sums paid prior to the date of their intervention.
2. INA is to receive interest (5%) on all other amounts from date of “payment”, as opposed to date of judicial demand.
* * * «• #
/s/ Edwin F. Hunter, Jr.
UNITED STATES DISTRICT JUDGE

      . AMENDED JUDGMENT
      IT IS ORDERED, ADJUDGED AND DECREED that there he judgment against Continental Oil Company, and in favor of:
      [Here is listed the amounts allowed to 12 Plaintiffs]
      together with legal interest on each of the aforesaid judgments from the date of judicial demand until paid.

        IT IS FURTHER ADJUDGED AND DECREED that the Insurance Company of North America be paid by preference and priority out of each award for any and all amounts paid out pursuant to the Longshoremen’s and Harbor Workers’ Compensation Act. The Insurance Company of North America is to be given credit against any future exposure under the Longshoremen’s Act.
      * $ $ $ *

      . What we regard as the equivalent of what may have been done has in fact been done. In response to the Court’s post-argument memoranda the carrier has, in effect, requested this Court to amend or clarify its prior mandate. Although here the cart came before the horse, it is inconsequential in view of our holding.

      . We reject the cross appeal of the carrier as frivolous.


text:
    Leonard LONDON et al., Plaintiffs-Appellants, v. The EAST FELICIANA PARISH POLICE JURY et al., Defendants-Appellees.
    No. 72-3111.
    United States Court of Appeals, Fifth Circuit.
    March 13, 1973.
    Stanley A. Halpin, Jr., George M. Strickler, Jr., New Orleans, La., for plaintiffs-appellants.
    John F. Ward, Jr., Baton Rouge, La., for East Feliciana School Board.
    David L. Norman, Asst. Atty. Gen., Civil Right Div., Dept, of Justice, Washington, D. C., Richard Kilbourne, Dist. Atty., Clinton, La., for East Feliciana Parish Police Jury.

      William J. Guste, Jr., Atty. Gen., of La., Baton Rouge, La., for McKeithen.
    Before TUTTLE, THORNBERRY and DYER, Circuit Judges.
   PER CURIAM:

Plaintiffs, registered voters in East Feliciana Parish, Louisiana, brought suit in the district court to challenge the constitutionality of the apportionment, of the East Feliciana Parish School Board. Following some related hearings in a companion case, the district court ordered the School Board to submit a reappointment plan to the Attorney General of the United States within ten days. After its first plan was rejected, the School Board submitted a modified plan, which was approved by the Attorney General. The district court, faced with impending School Board elections, denied each party’s motion for summary judgment and denied the plaintiff’s request for a trial, but did allow the parties tefi days to submit depositions on the merits. Based largely on these depositions, the district court, 347 F.Supp. 132, concluded that the plaintiffs had not satisfied their burden of proof, upheld the plan against the constitutional challenge, and ordered its immediate implementation. We reverse.

As this court stated in Thompson v. Madison County Board of Education, 5 Cir., 1973, 476 F.2d 676:

Due process mandates that a judicial proceeding give the affected parties an opportunity to be heard on the allegations asserted in the complaint and to present evidence and argument on the contested facts and legal issues framed by the answer to the complaint.

This did not occur in the court below. The district court, in an attempt to avoid undue interference with the upcoming elections, entered its judgment without affording the parties “a full and fair trial on the claims properly before the court.” Id. at 678. We thus must return this case to the district court so that the plaintiffs may have an adequate opportunity to develop their case in accordance with the principles stated in Madison County School Board, supra.

With the case in this posture it would, of course, be inappropriate for us to indicate our views on the constitutionality vel non of the School Board’s reapportionment plan.

Reversed and remanded.

      . The plaintiffs also challenged the apportionment of the parish Police Jury. This aspect of the case below was settled by a consent decree after the Police Jury’s reapportionment plan was approved by the Attorney General of the United States.