source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of Phill SILVER, Esq. UNITED STATES of America, Plaintiff-Appellee, v. Eugene BRADFORD, Defendant-Appellant.
    No. 74-2735.
    United States Court of Appeals, Ninth Circuit.
    Dec. 9, 1974.
   ORDER ON ORDER TO SHOW CAUSE

Before CHAMBERS, KILKENNY and TRASK, Circuit Judges.

PER CURIAM.

Respondent Phill Silver has been ordered to show cause why some sanction under Rule 46(c), Federal Rules of Appellate Procedure, for failure to prosecute the appeal with due diligence should not be imposed.

Respondent has been relieved as counsel with his consent and replaced for the appeal with the Federal Public Defenders. The Court is of the view that respondent’s services did not benefit the appellant.

Respondent has stated that he is willing to repay the parents of Bradford the sum of eight hundred dollars, out of a fee of one thousand dollars paid him by said parents, the remaining two hundred dollars having been expended for costs. The Court accepts the offer and directs that the payment be made within seven days from the date of the filing of this order. Respondent will file a receipt for the payment within fourteen days from the date of the filing of this order. When the Clerk receives such a receipt, he will enter an order that the order to show cause is discharged.


author: ADAMS, Circuit Judge: GARTH, Circuit Judge

text:
    Norman ROTHMAN, Appellant, v. UNITED STATES of America, Appellee.
    No. 74-1240.
    United States Court of Appeals, Third Circuit.
    Submitted under Third Circuit Rule 12(6) Oct. 11, 1974.
    Decided Jan. 31, 1975.
    Norman Rothman, pro se.

      Richard L. Thornburgh, U. S. Atty., Joel B. Strauss, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.
    Before McLAUGHLIN, ADAMS and GARTH, Circuit Judges.
   OPINION OF THE COURT

ADAMS, Circuit Judge:

The threshold issue confronting us is whether Rothman filed a timely notice of appeal so as to afford this Court jurisdiction.

I.

In 1960 Norman Rothman was convicted of interstate transportation of stolen firearms by the District Court for the Western District of Pennsylvania, and sentenced to five years’ imprisonment. On direct appeal this Court affirmed the judgment of the district court. Roth-man was incarcerated on this conviction from August 28, 1961 until February 18, 1965, at which time he was released on parole. The parole terminated on February 24, 1966.

Subsequent to completing the term in prison and the parole that resulted from his 1960 conviction, Rothman was convicted in the District Court for the Southern District of New York for unlawful transportation of stolen securities. On the basis of this second conviction Rothman was sentenced on January 7, 1972 to five years’ imprisonment. Roth-man was serving this second sentence at the time he filed in the Western District a “Motion to Vacate Sentence Pursuant to 28 U.S.C. 2255.” The motion to vacate sentence referred to the sentence entered pursuant to the 1960 conviction in the Western District and is the basis for the present appeal.

After Rothman filed the Motion to Vacate Sentence, a third sentence was imposed on him. The third sentence was entered by the Southern District of Florida following Rothman’s plea of guilty there to two counts of fraud. The Florida sentence consisted of two years’ imprisonment on each count, to run concurrently with each other. Eighteen months of the Florida sentence were to run concurrently with the five year sentence that had been imposed by the New York court.

Before us now is Rothman’s appeal from the denial of the motion filed in the Western District of Pennsylvania that challenges his 1960 conviction. Rothman alleges in his motion: that during his trial in the Western District he shared counsel with Joseph Merola, a co-defendant; that Merola attended strategy conferences between Rothman and Rothman’s attorney; that Merola was convicted for his part in the crime, but his sentence was later commuted by Presidential order on November 3, 1962; that Merola was an undercover agent for the government before, during, and after the trial; and that Rothman did not learn of Merola’s status as an informant until the time of the publicity surrounding the commutation of Merola’s sentence. Rothman contends, in effect, that the presence of Merola, an undisclosed informant, during the confidential discussions between Rothman and his counsel, deprived Rothman of his right to counsel and his right to due process. Rothman therefore asked the Western District to vacate the 1960 conviction on which he had already completed serving his sentence.

Rothman also asserts that in refusing to reduce his sentence on his 1972 conviction, pursuant to a motion under Rule 35 of the Federal Rules of Criminal Procedure, the Southern District of New York relied upon the constitutionally invalid 1960 conviction. The 1972 sentence that he was serving when he filed the motion involved here, Rothman argues, is invalid under United States v. Tucker. Rothman therefore asked the Western District of Pennsylvania to vacate his 1960 conviction, in order that he might then have his 1972 sentence corrected by the Southern District of New York.

The government moved in the Western District to dismiss Rothman’s petition brought under section 2255, on the jurisdictional ground that Rothman was not then “in custody” under the 1960 conviction attacked, as required by the statutory language. Rothman responded that the 1960 conviction had been relied upon by the Southern District of New York in denying Rothman’s Rule 35 motion to reduce the sentence he was serving at the time he filed his 2255 motion in the. Western District.

Judge Gourley, by opinion and order dated November 8, 1973, granted the government’s motion without conducting a hearing. Rothman moved for rehearing in a letter dated and apparently mailed December 4, 1973, which was filed by the district court on December 10, 1973. Although the motion for rehearing was not filed within 10 days after entry of judgment, and therefore was not timely, Judge Gourley nonetheless considered the motion for rehearing on its merits and denied it in an opinion and order dated December 26, 1973.

Rothman then mailed a pro se notice of appeal, in the form of a letter, from the federal penitentiary in Atlanta to the Clerk for the Western District of Pennsylvania. The letter is dated January 4, 1974. It was received by the Clerk’s Office on January 17, 1974, but for lack of a filing fee was not filed until January 30, 1974 when the required fee was received. The notice of appeal bears the following notarization:

NOTARIAL
State of Georgia:
County of Fulton:
s/ William Carr, Jr. United States Parole Officer
Date 1/10/74

On this appeal, Rothman argues that the continuing injury he suffers as a result of his 1960 conviction is sufficient to satisfy the “in custody” requirements of section 2255. However, Rothman does not deal with the problem of the date of the mailing of his notice of appeal, perhaps because that question was not squarely raised by the government. Nevertheless, the government does press the jurisdictional issue. First, it urges that the “in custody” requirement is jurisdictional in nature and that a prisoner is not “in custody” where he has been released from both confinement and parole supervision, and where a successful attack on the challenged conviction would not necessarily result in reduction of the petitioner’s current term of imprisonment. Further, the government raised the question of the timeliness of Rothman’s notice of appeal, but referred to the 30 day period for filing a notice of appeal in a civil case not involving the federal government. The government’s motion to dismiss the appeal, therefore, did not question the date of mailing, since under the thirty-day rule that date would not have been critical.

II.

Before a court may properly address the merits of an appeal, it is mandated to determine whether it has jurisdiction to consider the appeal. The timely filing of a notice of appeal with the district court is a prerequisite to jurisdiction in a court of appeals. Since proceedings under section 2255 are civil in nature, the time limits for the filing of notices of appeal in civil cases are applicable. Under Federal Rule of Appellate Procedure 4(a), in civil actions in which the United States is a party, as in a section 2255 motion, “the notice of appeal may be filed by any party within 60 days” of the entry of the judgment appealed from. Rothman filed a motion for rehearing pursuant to Federal Rules of Civil Procedure 52(b) or 59(e). However, since the motion was not filed within the ten day period prescribed in the Rules, it did not suspend the running of the 60-day period for filing a notice of appeal.

Judge Gourley’s order dismissing Rothman’s petition was dated November 8, 1973. Therefore, to be timely filed, Rothman’s notice of appeal should have been filed no later than January 7, 1974. As noted earlier, Rothman’s letter constituting his notice of appeal was dated January 4. If mailed on January 4, Rothman’s letter would, in the normal course of the mails, have been received by the Clerk of the District Court on January 7. If the notice was otherwise properly filed by the designated day, delay in the receipt of the filing fee until January 30 would not prejudice Roth-man’s opportunity to obtain review by this Court.

Although a document must ordinarily be received by the clerk of a court before it may be “filed,” the Supreme Court in Fallen v. United States created an exception where the appellant has done all he can to deliver a notice of appeal to the district court on time. Fallen was convicted of violations of the postal laws on January 11, 1962, and sentenced on January 15, 1962. Under the Federal Rules of Criminal Procedure, Fallen’s notice of appeal had to be filed by January 25. On January 29, 1962, the clerk of the district court received from Fallen two pro se letters dated January 23. One letter requested a new trial, the other an appeal. The motion for a new trial was denied on the merits. The Supreme Court held that under the circumstances Fallen “had done all that could reasonably be expected to get the letter to its destination within the required 10 days.” Fallen had been forced to take his appeal pro se. Sentenced to prison, he had been removed from the place of trial on the day after he was sentenced. Fallen had not been permitted to have visitors, and had been ill. In spite of the late delivery, he had written and mailed a notice of appeal in sufficient time to reach the clerk, in the normal course of events, within the 10 day period. The Court ruled that “subsequent delays were not chargable to” Fallen, and therefore the notice should be considered filed within the period specified by the Rules.

In the present case, we are unable to determine, on the basis of the record before us, whether Rothman did “all that could reasonably be expected to get the letter” to the Clerk’s Office on or before January 7. Rothman alleges that he “sent” the letter on January 4. However, the notarization on the letter is dated January 10, three days after the expiration of the period for filing the notice.

The presence of the notarization distinguishes this case from Fallen. In Fallen the Supreme Court presumed that the letter had been mailed on the same date recited in the heading of the letter. In that case, however, the Court specifically noted, “there is no reason on the basis of what this record discloses to doubt” that the letter was mailed on the day mentioned in the letter. And the government conceded in Fallen that it was unable to present any evidence as to the date of mailing. In the case before us, however, the notarization date contradicts Rothman’s assertion that the letter was mailed on January 4, and the government has not conceded that Rothman’s letter was mailed on January 4. Nor, on the basis of the record, can Rothman’s allegation that it was, be credited without further inquiry.

Any conclusions we might draw from these facts as to the circumstances surrounding the submission of Rothman’s letter would be mere speculation. Therefore, the case will be remanded to the district court for a determination whether Rothman filed his notice of appeal within the specified time. It may appear enticing, in the interest of judicial economy, to by-pass the hurdle of establishing jurisdiction before addressing the merits of the case. However, this Court, like all other courts in our judicial system, has no authority to impose its decision on others, including the judges of lower courts, when we have no jurisdiction. As the Supreme Court said in Ex parte McCardle, “Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the case.”

For the reasons set forth above, this case will be remanded to the district court.

GARTH, Circuit Judge

(concurring):

I believe that in the circumstances presented here the majority of the Court has adopted an overly rigid and technical view with respect to this Court’s jurisdiction over a pro se prisoner’s appeal. Although I do not dissent in view of the limited action taken by the majority, I nevertheless believe it important to note my disappointment with the restricted reading by the majority concerning both jurisdiction and the district court’s disposition of the merits.

As to jurisdiction: while I do not advocate lessening our jurisdictional requirements, I believe it a waste of judicial time and effort under these circumstances not to address Rothman’s petition on its merits. I believe Rothman has set forth a prima facie showing of this Court’s jurisdiction on appeal. Accordingly, although more detailed development of jurisdictional facts would be helpful, I believe that a remand for such purpose is not necessitated where:

(1) The petitioner is a pro se prisoner litigant;
(2) The petitioner has alleged a prima facie jurisdictional basis;
(3) The government has not contested or contradicted the underlying jurisdictional fact asserted; see, e. g., Spock v. David, 469 F.2d 1047, 1052 (3d Cir. 1972);
(4) We could retain jurisdiction, remanding to the district court for action on a (pro forma) application for a 30 day extension of time for appeal;
(5) There is no bar to the petitioner reinstituting the application.

As to the merits: the majority opinion restricts reference to the merits to footnote 27 where the mojority indicates that the district court may wish “to afford Rothman’s pro se petition a broad reading and consider whether, under the circumstances of this case, Rothman is entitled to a writ of coram nobis . . . ”. In my view, the district court is required to afford the petition a broad reading. See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); United States v. Morgan, 346 U.S. 502, 505, 74 S.Ct. 247, 98 L.Ed. 248 (1954). I see no justification for the district court dismissing the petition on “non-custody” grounds under § 2255 without first determining if there exists other bases for relief. Here, even-though Rothman had styled his action under § 2255, his motion to vacate sentence should have been treated as an application for a writ of coram nobis by reason of his having been unconditionally released from custody under the challenged sentence. See Sanders v. United States, 373 U.S. 1, 22-23, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). On an initial motion seeking a collateral remedy, as here, a district judge is not obliged to limit his examination to the grounds narrowly alleged, but is free to, and I believe is required to, adopt any appropriate means to ascertain all possible grounds on which the petitioner might claim relief. See United States v. Morgan, 346 U.S. at 505, 74 S.Ct. 247; cf. Johnston v. United States, 424 F.2d 505 (10th Cir. 1970); United States v. Coke, 404 F.2d 836 (2d Cir. 1968) (motion labelled as § 2255 treated under Rule 35). As such, based upon the allegations presented before the court below, I am of the opinion that Rothman, although labelling his application as a § 2255 petition, in effect sought a writ of coram nobis so as to vacate his 1960 federal conviction after service of the full term.

Rothman alleges in his petition that he was denied his rights to due process as guaranteed by the Fifth and Sixth Amendments, because his co-defendant, with whom Rothman allegedly shared counsel, was before and during trial a Government agent. Such an allegation, if proven, demonstrates that conflict of interest or prejudice as would deprive the defendant of effective assistance of counsel. We have held joint representation under analogous circumstances to be constitutionally defective. See United States ex rel. Hart v. Davenport, 478 F.2d 203, 210 (3d Cir. 1973); United States v. Rispo, 460 F.2d 965, 970 (3d Cir. 1972); Walker v. United States, 422 F.2d 374 (3d Cir.), cert. denied, 399 U.S. 915, 90 S.Ct. 2219, 26 L.Ed.2d 573 (1970). Rothman further contends that because of his prior conviction in 1960, he has been and is subject to greater punishment upon sentencing for his subsequent convictions. I note that in similar circumstances such an allegation was held to be sufficient to support application for a writ of coram nobis. E. g., United States v. Forlano, 319 F.2d 617 (2d Cir. 1963); Wharton v. United States, 348 F.Supp. 1026 (D.Ark.), aff’d, 470 F.2d 510 (8th Cir. 1972).

Reviewing the allegations presented here, it appears that the appropriate remedy might well be the issuance of a writ of coram nobis. Coram nobis is an extraordinary writ, which permits a court to correct its own judgment in light of a substantial error of fact not appearing on the record. The writ is designed to correct errors of fact of “the most fundamental character, that is, such as to rendered the proceeding itself irregular and invalid.” United States v. Morgan, 346 U.S. at 509 ri. 15, 74 S.Ct. at 251; United States v. Cariola, 323 F.2d 180, 184 (3d Cir. 1963). Where the petition, as here, alleges compelling constitutional circumstances arising from facts not appearing of record at the time of Rothman’s 1960 conviction, a proceeding in coram nobis is appropriate. See, e. g., United States v. Morgan, 346 U.S. at 511, 512, 74 S.Ct. 247; United States v. Garguilo, 324 F.2d 795, 796 (2d Cir. 1963); United States v. Cariola, 323 F.2d at 184.

In light of the petition revealing on its face prima facie jurisdiction and facts asserting a cognizable claim for relief, I would reverse not for the limited purpose of ascertaining additional jurisdictional facts but rather with the direction that the district court treat the petition as an application for a writ of coram nobis and conduct appropriate proceedings. Ultimately, this Court must reach this issue on the merits. I see no reason why we should not reach it now.

      . United States v. Rothman, Crim.No. 15750 (W.D.Pa., February 4, 1960).

      . United States v. Carlucci, 288 F.2d 691 (3d Cir.), cert. denied, 366 U.S. 961, 81 S.Ct. 1920, 6 L.Ed.2d 1253 (1961).

      . Rothman does not appear to have raised on direct appeal from his 1960 conviction the issues which form the basis of his present motion. Rothman asserts that he did not do so because he had not learned of Merola’s undercover activities at the time of his direct appeal.

      . Fed.R.Crim.P. 35: The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence. The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction. The court may also reduce a sentence upon revocation of probation as provided by law.

      . 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).

      . Rothman had not been sentenced by the Southern District of Florida at the time he filed his section 2255 motion in the Western District of Pennsylvania. The record in this case does not reveal whether the Southern District of Florida took into account Roth-man’s 1960 conviction when it sentenced him on his 1973 conviction.

      . 28 U.S.C. § 2255 (1971): A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, may move the court which imposed the sentence to vacate, set aside or correct the sentence. * * *

        See Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960); United States ex rel. Rosenberg v. United States District Court, 460 F.2d 1233 (3d Cir. 1972).

      . Rothman also sent Judge Gourley a letter dated November 15, 1973, asking the Judge’s advice how to proceed further with his challenge under Tucker. Judge Gourley responded that it was not proper for a member of the federal judiciary to offer legal advice.

      . A prisoner’s pro se notice of appeal is sufficient “so long as from its nature it evidences an intention to appeal.” Fitzsimmons v. Yeager, 391 F.2d 849, 853 (3d Cir. 1968).

      . Cf. Sedivy v. Richardson, 485 F.2d 1115, 1122-1123 (3d Cir. 1973) (Adams, concurring).

      . Fed.R.App.P. 4(a): (a) Appeals in Civil Cases. In a civil case ... in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required by Rule 3 shall be filed with the clerk of the district court within 30 days of the date of the entry of the judgment or order appealed from; but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days of such entry. * *

      . F.R.App.P. 4; United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); Fitzsimmons v. Yeager, 391 F.2d 849, 851 (3d Cir.), cert. denied 393 U.S. 868, 89 S.Ct. 154, 21 L.Ed.2d 137 (1963).

      . See Fitzsimmons v. Yeager, 391 F.2d 849, 851 (3d Cir. 1968); United States v. Keogh, 391 F.2d 138, 140 (2d Cir. 1968).

      . See Cramer v. Wise, 494 F.2d 1185 (5th Cir. 1974); United States v. Keogh, 391 F.2d 138, 140 (2d Cir. 1968).

      . F.R.Civ.P. 52(b): (b) Amendment. Upon motion of a party made not later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment aCCOrdingly ^

      . F.R.Civ.P. 59(e): (e) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.

      . F.R.App.P. 4(a); Torockio v. Chamberlain Mfg. Co., 456 F.2d 1084 (3d Cir. 1972).

      . Parissi v. Telechron, Inc., 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867 (1955).

      . F.R.App.P. 25(a). See Kahler-Ellis Co. v. Ohio Turnpike Comm’n, 225 F.2d 922 (6th Cir. 1955); LeJeune v. Midwestern Life Ins. Co., 197 F.2d 149 (5th Cir. 1952).

      . 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964).

      . 378 U.S. at 144, 84 S.Ct. at 1692.

      . 378 U.S. at 143-144, 84 S.Ct. at 1692.

      . Appellant’s Response to Appellee’s Motion to Dismiss Appeal as Out of Time, at 2.

      . See 378 U.S. at 143-144, 84 S.Ct. 1689.

      . United States v. Meyers, 406 F.2d 1015 (4th Cir. 1969). See Caylor v. United States, 362 F.2d 689 (10th Cir. 1966); Kent v. United States, 423 F.2d 1050 (5th Cir. 1970). See also Torockio v. Chamberlain Mfg. Co., 456 F.2d 1084, 1087 (3d Cir. 1972).

      . If the district court finds that Rothman’s appeal was not timely filed, Rothman may wish to file a motion requesting the district court to validate nunc pro tunc the filing of his notice of appeal for “excusable neglect.” See F.R.App.P. 4(a); Torockio v. Chamberlain Mfg. Co., 456 F.2d 1084, 1087 (3d Cir. 1972).

      . 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868).
      A further indication of the Supreme Court’s attitude toward compliance with the rules governing jurisdiction in the courts of appeals may perhaps be gleaned from its opinion in Robinson, supra:

      Rule 45(b) [predecessor to the present Fed. R.App.P. 4] says in plain words that “. the court may not enlarge . . . the period for taking an appeal.” The courts have uniformly held that the taking of an appeal within the prescribed time is mandatory and jurisdictional. The history of Rule 45(b) shows that consideration was given to the matter of vesting a limited discretion in the courts to grant an extension of time for taking an appeal, but upon further consideration, the idea was deliberately abandoned.
      That powerful policy arguments may be made both for and against greater flexibility with respect to the time for the taking of an appeal is indeed evident. But that policy question, involving, as it does, many weighty and conflicting considerations, must be resolved through the rule-making process and not by judicial decision. 361 U.S. at 229, 80 S.Ct. at 288.
      The courts of appeals have taken an equally demanding view of the necessity of complying with the jurisdictional requirements. For example, in United States v. Mathews, 462 F.2d 182 (3d Cir. 1972), where the notice of appeal had to be filed within 10 days after entry of final judgment, this Court held that neither a notice filed subsequent to conviction but prior to sentencing — the final judgment — nor a notice filed 11 days after the final judgment, was competent to afford this Court jurisdiction to hear the appeal from a criminal conviction. But cf. Fed.R.App.P. 4(b). See also Lapiczak v. Zaist, 451 F.2d 79, 80 (2d Cir. 1971); Wagner v. Burlington Indus., 423 F.2d 1319, 1321 (6th Cir. 1970); Vine v. Beneficial Finance Co., 374 F.2d 627, 632 (2d Cir. 1967).

      . Since we are not able to determine whether this Court has jurisdiction over the present case, directions to the district court would be premature. On remand, however, the district court may find it appropriate to afford Roth-man’s pro se petition a broad reading and consider whether, under the circumstances of this case, Rothman is entitled to a writ of coram nobis setting aside his 1960 conviction for the reasons alleged in his petition. See United States v. Morgan, 346 U.S. 502, 505, 74 S.Ct. 247, 98 L.Ed. 248 (1954); Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Heflin v. United States, 358 U.S. 415, 418, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959). A writ of coram nobis is available in the federal courts to correct an error “of the most fundamental character.” United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 98 L.Ed. 248 (1954). See United States v. Cariola, 323 F.2d 180 (3d Cir. 1963). Rothman made oblique reference to the question of coram nobis relief in his response, in the district court, to the government’s motion to have Rothman’s petition dismissed for lack of jurisdiction under section 2255.

      . Compare Fallen v. United States, 378 U.S. 139, 142-144, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964); Coppedge v. United States, 369 U.S. 438, 442 n. 5, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); Williams v. United States, 88 U.S.App.D.C. 212, 188 F.2d 41 (1951).

      . Rothman has stated, without contradiction, that his notice of appeal was duly mailed in the federal penitentiary in Atlanta on January 4, 1974. In the normal course of events the letter should have been received by the District Court Clerk on Monday, January 7, 1974, within the 60 day time period allowed for appeal. See note 3, infra.

      . The Government’s challenge was predicated on a 30 day period for appeal as it argued that the notice of appeal, received January 17, 1974, was received more than 30 days after the November 8, 1973 order. Under Fed.R. App.P. 4(a), however, petitioner had 60 days to appeal. As noted previously, see note 2, supra, Rothman stated that he mailed his notice of appeal within time sufficient for it to be received before the 60 day period expired. Rothman’s statement that he “mailed” the letter on January 4, 1974 is not controverted by the Government.
      Although, as noted by the majority, the notarization of Rothman’s letter by a parole officer is dated January 10, 1974, I do not believe the difference in the dates of notarization, and mailing necessarily makes suspect Rothman’s statement that on January 4, 1974 he deposited his notice of appeal to be mailed. My concern here is whether Roth-man continued to exercise sufficient control over the letter’s disposition so that delays in its mailing may be chargeable to him. Fallen v. United States, 378 U.S. at 143-144, 84 5. Ct. 1689. Consequently, I believe there is no reason to conclude, on the basis of what this record discloses, that the subsequent delay was necessarily chargeable to Rothman. Id.

      . I recognize that in similar circumstances, the problem of filing delays by prisoners has been dealt with by other appellate courts by remanding the action to the district court to allow the petitioner to move for a 30 day extension of time for appeal upon a showing of excusable neglect. Fed.R.App.P. 4(a). E. g., Cramer v. Wise, supra, Tuley v. Heyd, 492 F.2d 788 (5th Cir. 1974); Evans v. Jones, 366 F.2d 772 (4th Cir. 1966). I note, however, that where remand has been ordered, the particular court of appeals retained jurisdiction pending a determination of excusable neglect by the district court. Moreover, in Weaver v. State of Texas, 469 F.2d 1314 (5th Cir. 1972), not only was jurisdiction retained but the petition for rehearing was granted.
      I believe that on the present record, limited to the factual and procedural situation presented here, the initial jurisdictional burden has been carried by Rothman and that there is no present need to remand for an excusable neglect determination. Accordingly, in this situation, I prefer not to follow the procedural remand device ordered in the above cases.

      . Even if it were to be decided that this Court lacks jurisdiction because the appeal was untimely filed, there would be no bar to reinstitution of an action by Rothman to collaterally attack his 1960 conviction and sentence. Sanders v. United States, 373 U.S. 1, 10, 14, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Arrington v. United States, 425 F.2d 244, 245 (7th Cir. 1970), cert. denied, 400 U.S. 835, 91 S.Ct. 72, 27 L.Ed.2d 68 (1971).

      . As the challenge here is to the conviction itself, and not to the sentence imposed, a motion under Fed.R.Crim.P. 35 is not the appropriate vehicle for relief:
      “Sentences subject to correction under that rule are those that the judgment of conviction did not authorize.”
      United States v. Morgan, 346 U.S. at 506, 74 S.Ct. at 250. See Heflin v. United States, 358 U.S. 415, 418, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959).


author: McENTEE, Circuit Judge.

text:
    George J. LAMBERT, Plaintiff-Appellant, v. PROVIDENCE JOURNAL COMPANY, Defendant-Appellee.
    No. 74-1287.
    United States Court of Appeals, First Circuit.
    Argued Nov. 4, 1974.
    Decided Jan. 7, 1975.
    Roderick A. J. Cavanagh, Wakefield, R. I., for appellant.
    Knight Edwards, Providence, R. I., with whom Edward F. Hindle, Terrence M. Finn, and Edwards & Angelí, Providence, R. I., were on brief, for appellee.
    Before COFFIN, Chief Judge, McEN-TEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

Plaintiff George J. Lambert owned and operated the Camelot Inn, a cafe in Fall River, Massachusetts. On October 6, 1972, at the Inn he shot and killed one Thomas F. McCabe. As a result of this incident, described more fully in the newspaper accounts in notes 1-4 infra, Lambert was charged as an accessory after the fact to murder, and later with murder itself. The charge was reduced to manslaughter, however, at a bindover hearing. Lambert was tried in the Massachusetts Superior Court for Bristol County and was acquitted.

During the period before trial the defendant, the Providence Journal Company, published four articles concerning Lambert dated October 8,, October 13,, and December 28, 1972 and February 18, 1973, which it distributed in Massachusetts and Rhode Island. Alleging the articles were defamatory, Lambert sued the Journal in the District Court for the District of Rhode Island. The Journal filed a motion for summary judgment together with supporting affidavits, Lambert’s deposition, and a memorandum of law. Lambert filed an objection to the motion, together with supporting affidavits, depositions, and a memorandum of law. The court granted the motion on the alternative grounds that the allegedly libellous material was not defamatory since the innuendo pleaded by Lambert was unwarranted, and that even if the material were actionable Lambert failed to demonstrate that there was a genuine issue of fact as to the Journal’s actual malice under the standard established in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 685 (1964). Lambert appeals. We find it unnecessary to reach the court’s second ground of decision, as we agree that none of the articles was reasonably capable of any defamatory meaning.

Lambert cannot object to the articles insofar as they report, admittedly truthfully, that he was charged with murder. “The publication of the fact that one has been arrested, and upon what accusation, is not actionable, if true. . . But if to this fact there is added, by way of comment, words which amount to an accusation that the charge is true, or comment which assumes the guilt of the person arrested, by headlines or otherwise, the mere fact that the person was arrested upon the charge stated is no justification for words imputing guilt.” Commercial Pub. Co. v. Smith, 149 F. 704, 706 (6th Cir. 1907); Thompson v. Globe Newspaper Co., 279 Mass. 176, 188, 181 N.E. 249 (1932). Lambert claims that the articles’ characterization of McCabe as a murder victim and the incident itself as a murder with that term’s denotation of illegality, instead of the neutral “shooting death,” “homicide,” or “killing,” constituted such editorial comment imputing guilt. In support of his construction Lambert submitted the depositions of three community residents who testified that such had been their “fair,” “plain,” and “ordinary” understanding of the articles in question.

It is for the court to decide whether a statement can be defamatory in character. Andoscia v. Coady, 99 R.I. 731, 735, 210 A.2d 581, 584 (1965); Sharratt v. Housing Innovations, Inc., 1974 Mass.Adv.Sh. 575, 577-578, 310 N.E.2d 343, 345. Reading the articles in their entirety, Bray v. Providence Journal Co., 101 R.I. 111, 116, 220 A.2d 531, 534, W. Prosser, Torts § 111 at 747-48 (4th ed. 1971), and construing their language naturally, Reid v. Providence Journal Co., 20 R.I. 120, 122, 37 A. 637 (1897); Lyman v. New England Pub. Co., 286 Mass. 258, 261, 190 N.E. 542, 543 (1934), we are constrained to agree with the district court that none was reasonably capable of conveying the defamatory meaning Lambert alleges. Bray v. Providence Journal Co., supra; Sharratt v. Housing Innovations, Inc., supra at 578, 310 N.E.2d at 345. Even if the use of the term “murder” implied that the killing was unlawful, each article unequivocally states that Lambert has “denied” the murder charge or “pleaded innocent,” or reports the progress of the case in such a way as to make clear that no determination of his involvement has been made. Nothing in them suggests that the Journal has concluded that Lambert is the guilty party even if it has decided that there was a murder. Moreover, the term “murder” is used interchangeably throughout with the terms “fatal shooting,” “shooting death,” and “homicide,” often in the same or adjacent sentences. In this context the term clearly is chosen solely for variety’s sake and merely echoes the report of the charges levelled against Lambert without implying their truthfulness. It is obviously to be understood as “alleged murder.” In these routine news articles we think it would require more forceful language than this to justify Lambert’s reading. The innuendo cannot be used to enlarge the natural meaning of the words actually used. Ogrodnick v. Providence Journal Co., 93 R.I. 316, 317, 175 A.2d 289, 291 (1961); Colby Haberdashers, Inc. v. Broadstreet Co., 267 Mass. 166, 170, 166 N.E. 550, 551 (1929). None of these articles can be construed to impute guilt without such an enlargement.

Finding the meaning of the articles clear, we see no basis on which the depositions of witnesses could be held competent as to their defamatory capacities. Snell v. Snow, 54 Mass. (13 Metc.) 278 (1847); Duncan v. Pearson, 135 F.2d 146 (4th Cir. 1943). To the ordinary reasons advanced for excluding such testimony may be added the difficulty, evidenced by the depositions here, of distinguishing between “murder” and “killing” — a distinction vital to Lambert’s case. Such considerations explain the courts’ reluctance to entertain libel suits dependent upon a precise construction of a newspaper’s use of technical legal terminology. Bray v. Providence Journal Co., supra (“testimony”). Joyce v. Globe Newspaper Co., 355 Mass. 492, 245 N.E.2d 822 (1969) (“commitment”); Piracci v. Hearst Corp., 263 F.Supp. 511 (D.Md.1966). Despite the Journal’s loose use of the word “murder,” we think only “supersensitive persons, with morbid imaginations,” Reid v. Providence Journal Co., supra at 122, 37 A. at 637, could discover in any of these articles the assertion that Lambert was guilty of murder.

Affirmed.

      . “Pair Deny Murder, Accessory Charges — 2 Men held in Fatal Fall River Shooting
      “Two Fall River men were arrested by police early yesterday morning and charged in connection with the murder shortly before midnight Friday of a 28-year-old Fall River man in the Camelot Inn on South Main Street.
      “Edward Smialek, 55, who lives above the Inn at 427 South Main St., pleaded innocent to a charge of murder before Judge Hugh Morton in District Court yesterday afternoon.
      “The manager of the Camelot Inn, George J. Lambert, 28, of 746 King Philip St., pleaded innocent to a charge of being an accessory after the fact of murder. Both cases were continued to Wednesday.
      “The charges stem from the shooting death of Thomas F. McCabe, Jr., 28, of 288 Lincoln Avenue, Fall River, who was vice president and one of the owners of the Cellar Door Cafe on Davol Street. His murder was the ninth in Fall River this year.
      “Detectives from the Criminal Investigation Division said Smialek and Lambert were arrested about 5 a. m. yesterday inside the Camelot Inn. The two had remained there after the shooting while police conducted their investigation.
      “Smialek is being held at Bristol County House of Correction without bail and Lambert who is represented by his brother, Jay Lambert, an attorney, was released on $10,-000 bail.
      “Police confirmed that the murder occurred shortly before midnight Friday when Mr. McCabe and three friends entered the Camelot Inn and were told to leave by the management because they were not wearing jackets or ties. . . . ”

      . “Court Action Taken Against 4 In Three Fall River Murders
      “Court developments in three of the city’s homicide cases were recorded yesterday in Fall River.
      ******
      “In district court, George J. Lambert, 28, of 746 King Phillip St., proprietor of the Camelot Inn on South Main Street, Fall River, was arraigned on a charge of murder in connection with the fatal shooting of Thomas F. McCabe, Jr., 28, of 288 Lincoln Avenue, Oct. 6, at the inn.
      “Also charged with homicide resulting from the same shooting is Edward J. Smia-lek 55, of 427 S. Main St.
      “He was arraigned last Tuesday on a charge of being an accessory after the fact to the same murder, a count that remains against him.
      “Yesterday after Lambert pleaded innocent to murder, Judge Milton R. Silva ordered him committed to the New Bedford House of Correction on $25,000 bail. Surety in that amount was posted for him yesterday afternoon and he was released.

      . “Fall River Cafes Beginning to See the Light”
      . . The board’s swift and decisive action has set it at loggerheads in at least one instance with the state Alcoholic Beverage Commission.
      “The ABC recently overruled the indefinite suspension of a liquor license at Camelot Inn, 425 S. Main St., contending that the board exceeded its authority. The ABC returned the license pending a court hearing on an October murder charge brought against the cafe owner, George Lambert.
      “The incident is illustrative of what the licensing board has been up against. The murder victim, Thomas F.McCabe was the owner of Cellar Door Cafe, 1082 Davol St., which lost its license in September for ‘general mismanagement,’ including alleged drug trafficking, having minors on the premises and violating fire codes. . . ”

      . “Homicide — 13 Murder Cases Scheduled For Trial Next Month in Bristol Cty.”
      “Thirteen Bristol County murder cases have been scheduled for trial next month during the special three week Superior Court session requested by District Attorney Philip Rollins.
      ******
      “The 28-year-old vice president and part owner of the Cellar Door, a bar on Davol Street, is the fourth Fall River murder victim whose case will go to Superior Court.
      “Thomas F. McCabe, Jr., 28, of 288 Lincoln Ave., was shot to death inside the Camelot Inn on South Main Street shortly before midnight on Oct. 6.
      “Arrested first as an accessory and later for the actual murder is the Camelot Inn’s then manager, George J. Lambert, 28, of 746 King Philip St.
      “Police reports indicated Mr. MCabe and three friends entered the Inn and immediately were told to leave because of a rule demanding ties and jackets. A fight ensued and Mr. McCabe was shot, staggered to the outside door and collapsed. . . ”

      . The innuendo actually pleaded, that each article was understood to mean that “a ‘murder’ had been committed and that Plaintiff was charged with the criminal conduct aforesaid,” seems deficient as a matter of law. The latter imputation would be defamatory but was admittedly true; the former is false but not defamatory as to Lambert because it does not imply his involvement. Riverhouse Pub. Co. v. Porter, 287 F.Supp. 1, 3-5 (D.R.I.1968); Hanson v. Globe Newspaper Co., 159 Mass. 293, 294-295, 34 N.E. 462, 462-463 (1893). The essence of Lambert’s claim is that the articles were understood to mean that he had committed murder, and we treat it as such throughout our opinion.

      . The district court applied Rhode Island’s law of libel in this case. Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Since Massachusetts law does not differ in any significant respect as our twin citations throughout will show, we need not consider whether that state has a more significant relationship to the occurrence and the parties. See Restatement (Second) of Conflict of Laws § 150 (1971).

      . This differentiates the instant case from Commercial Pub. Co. v. Smith, supra. In that case the court held it was a jury question whether the following article was defamatory:
      “Murderer Arrested.
      Augusta, Ark., Feb. 10th. — Sheriff Marshal Patterson arrested Fred Smith, camped in a tent ten miles north of Augusta, on White river. Smith is wanted at Kennett, Mo., for killing old man F. E. Porch, the incentive being robbery. The state of Missouri offered $300, the county $200, and the citizens of Malden $600, for Smith’s arrest. Smith does not deny being the man wanted, but claims he did not do the killing.”
      Describing the plaintiff as a murderer implicated him in the killing in a way the Journal’s articles did not implicate Lambert here. “Other cases, though persuasive, are rarely controlling [in libel actions] because of variations in the words used.” Lane v. The Washington Daily News, 66 App.D.C. 245, 85 F.2d 822, 824 (1936). Moreover, Smith was decided nearly seventy years ago under federal common law. The trend has shifted towards restricting liability for defamation, W. Pros-ser, supra at 738-39, and we doubt the Smith result would be reached under present-day Massachusetts and Rhode Island libel law.

      . The context shows that the single use of the phrase “actual murder” in the last article served to distinguish the murder charge from the earlier accessory charge and could not be read to assert the conclusion that the killing was unlawful.


author: BROWN, Chief Judge:

text:
    Nicholas NARDONE, an infant, by his father and next friend, Nicholas H. Nardone, and Nicholas H. Nardone, Individually, Plaintiffs-Appellants, v. David H. REYNOLDS et al., Defendants-Appellees.
    No. 72-2264.
    United States Court of Appeals, Fifth Circuit.
    Feb. 24, 1975.

      Abraham H. Shukat, Miami Beach, Fla., Alfred S. Julien, New York City, for plaintiffs-appellants.
    S. 0. Carson, John H. Wahl, Jr., Frank A. Lane, Miami, Fla., for Reynolds & Hartford Ins. Co.
    Raymond J. Dwyer, Steven R. Berger, Miami, Fla., for Sheffel & Med. Protect.
    Carl M. Lambert, Miami, Fla., for I.N.A.
    Henry Burnett, Miami, Fla., for Gar-gano, American Home Ins. & Metropolitan Dade County.
    John R. Hoehl, James E. Tribble, Miami, Fla., for Gargano.
    Before BROWN, Chief Judge, and WISDOM and AINSWORTH, Circuit Judges.
   BROWN, Chief Judge:

This is an appeal from- the grant of summary judgment in favor of the Florida doctor-hospital defendants in a medical malpractice suit brought by the parents of a minor in their own right and as next friends on behalf of their minor son. The District Court, assuming for those purposes that each of the defendants had been guilty of actionable negligence, granted summary judgment on the basis that the claim was barred under the four-year Florida statute of limitations. FSA § 95.11(4). Whether the summary judgment on that basis was correct turns on the application of Florida’s malpractice “rule of discovery”.

Young Nardone, then aged 13, entered the Jackson Memorial Hospital, a Dade County facility in January 1965. He was having some difficulty with coordination, blurred vision,, byplopia and headaches. While there he underwent four brain operations in January, February and March and various diagnostic procedures including the now-much emphasized pant-opaque ventriculogram procedure (ppv). On his discharge July 3, 1965 his condition was comatose, totally blind. He had suffered irreversible brain damage. He remains in that condition.

The parents were told and knew that this was the boy’s condition prior to his discharge, that is totally blind, no longer able to walk and beyond help or hope of recovery. Mr. Nardone testified that Dr. Smith “let me feel at the time that the boy would no longer, his feelings were that he was totally blind, he would no longer walk and he said to me, ‘no matter what you try to do from this point on if you are a millionaire you are hot going to be able to help the boy’ ”.

According to the plaintiffs, in the Fall of 1969, shortly after the expiration in July of the four-year limitation period they learned from the family physician that there might have been something wrong in the surgical and treatment procedures in Jackson Memorial Hospital. This apparently alerted them to a concern. They consulted counsel and this case was then instituted in the Southern District of Florida in May 1971, more than five years after the boy’s discharge from Jackson Memorial Hospital in July 1965.

In Florida the “discovery rule” governs the time when the statute of limitations begins to run in medical malpractice cases. At the risk of oversimplification, the rule, as developed through Judicial decisions, provides that the statute of limitations shall commence when either one of two conditions precedent occur: (i) the plaintiff has notice of the negligent act giving rise to a cause of action, or (ii) the plaintiff has notice of the physical injury which is the consequence of the negligent act. At the bottom of the problem are the two cases of Brooks and Buck or more accurately, the reading to be given to what the Florida Courts have said in those two opinions.

The problem arises because Brooks after speaking in traditional terms that the statute of limitations is not postponed by the fact that actual or substantial damages do not occur until a much later date then goes on to speak in terms of notice of the invasion of the legal rights of the person or notice of an “injury”.

The opinion emphasizes notice of an injury. “At the time of the application of the x-ray treatment there was nothing to put the plaintiff on notice of any probable or even possible injury.” 70 So.2d 306, 308. It then goes on to speak in terms of invasion of a legal right. “[T]he statute attaches when there has been notice of an invasion of the legal right of the plaintiff or he has been put on notice of his right to a cause of action.” 70 So.2d at 309. (Emphasis added).

Holding that the statute was tolled, the Court pointed out “ . . . there was nothing to indicate any injury or to put the plaintiff on notice of such, or that there had been an invasion of her legal rights.” 70 So.2d at 309. (Emphasis added). And the rule announced is that “ . . the statute [of limitations] must be held to attach when the plaintiff was first put upon notice or had reason to believe that her right of action had accrued.” 70 So.2d at 309.

And in Buck the emphasis is on awareness of an injury, but the “injury” is one operationally related to treatment afforded by the physicians.

This brings us to the crux of the controversy. The plaintiffs assert that the Court’s reference to “injury” and “invasion of [a] legal right” means an awareness by the victim (or derivative beneficiaries) not only of the existing physical condition (paralysis, coma, etc.) but that this was operationally related to acts or non-acts of the defendant doctors, hospitals, etc. On the other hand, the defendants individually and collectively contend that the critical thing is awareness by the victim (or derivative beneficiaries) of the physical condition without regard to whether either the victim (or derivative beneficiaries) know whether this is the result of a natural phenomenon or of acts or non-acts of the medical agencies.

In a matter of such grave consequence not only to these litigants but as a general principle for the guidance of cases bound to repeat themselves we do not find a sufficient guide in the language employed in the two cases and those following them to reach a sound decision. The trial court adopted the defendant’s reading and held, as the evidence most plainly commanded, that the parents knew of the tragic condition of their son on discharge from Jackson Memorial Hospital in July 1965.

The plaintiffs, on the other hand, insist that while they knew this unfortunate result they had no knowledge of what brought it about. On their argument all of this — tragic as it was — was merely the inescapable result of the medical condition in no way influenced or affected by the treatment, the lack of treatment or the skill or neglect in its performance. It is here where their theory starts to work. Their claim is that it was not until 1969 that they learned, for the first time, that the ppv had been administered. They further claim they have medical evidence to offer which would allow a jury to conclude that this procedure either ought not to have been followed under those circumstances or, if so, it was negligently performed.

The plaintiffs’ contention is that Brooks and Buck and cases following them stand for the proposition that the word “injury” means an operational condition resulting from some act or non-acts of the defendants. And for knowledge of the “injury” to trigger the statute of limitations the plaintiffs had to be aware not only of the condition but facts leading a reasonable person to the conclusion that it was due to acts or non-acts of the treating agencies. On that approach there is nothing in this record to indicate that the plaintiffs here had any actual knowledge prior to 1969 that any acts or non-acts of the defendants had brought about this deplorable condition and on the question of whether they ought to have known there would be at least a question of fact which would rule out pre-trial summary judgment.

The defendants, on the other hand, insist that the word “injury” connotes physical injury and not injury in the sense that there has been an invasion of a legal right. On defendant’s theory Buck in its reference to “the negligent act that caused the injury” and to “injury” — one of these two distinct terms describing cause and the other effect — intended the term “injury” to denote plaintiff’s physical condition (effect) as distinguished from the alleged act of negligence or legal injury (cause).

There is also presented the closely related if not inescapable problem of the claim of fraudulent concealment which tolls the running of the statute when it can be shown that a legal fraud has been perpetrated to place an injured person (or derivative plaintiff) in ignorance of the rights to a cause of action. See Buck, supra; Prather v. Neva Paperbacks, Inc., 5 Cir., 1971, 446 F.2d 338. There being no intimation in the record upon which summary judgment was granted that any one or more or all of the doctors engaged in affirmative acts of misrepresentation the issue may well turn on whether under Florida principles the fraudulent concealment can come from a failure upon the part of the doctors and hospital to affirmatively keep the patient or the parents advised of developments and activities even in the absence of any request for information by the parents.

As these propositions present questions of the gravest public policy to Florida in situations likely to recur frequently we think this is an instance in which we should utilize the procedure for certification to the Supreme Court of Florida for its authoritative decision on matters in which it has not only the latest, but the last word barring some possible federal constitutional claim.

We are therefore certifying these critical questions to the Supreme Court of Florida by the certificate appended to this opinion.

Case certified.

      . This was confirmed by the reevaluation at Columbia Presbyterian Hospital in New York City in the Fall of 1965. The report and final diagnosis of October 19, 1965 stated:
      . it is certain that the brain damage responsible for the decerebrate state is irreversible and that he has bilateral total blindness. The family has been advised against subjecting him to any further diagnostic or therapeutic procedures and to transfer him to a nursing home for further care. Appendix 169.

      . City of Miami v. Brooks, Fla., 1954, 70 So.2d 306.

      . Buck v. Mouradian, Fla.App., 3d Dist., 100 So.2d 70, cert. denied, Fla., 1958, 104 So.2d 592.

      . The general rule, of course, is that where an injury, although slight, is sustained in consequence of the wrongful act of another, and the law affords a remedy therefor, the statute of limitations attaches at once. It is not material that all the damages resulting from the act shall have been sustained at that time and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date. 70 So.2d 306, 308.

      . The Court stated “ . . . it conclusively appears that she was aware of her injury shortly after the treatments administered . .. Her admissions affirmatively established the knowledge on her part of her injury.” Nowhere, the Court stated, was it “ . . . able to find that [plaintiff] was without knowledge of her injury at the time, or shortly thereafter, of the administration of the x-ray treatments.” Buck v. Mouradian, 100 So.2d at 71-72.

      . To the cases listed in Coastal Petroleum v. Secretary of the Army, 5 Cir., 1973, 489 F.2d 777, 779, n. 5, on rehearing, 1974, 491 F.2d 973, see Lehman Brothers v. Schein, 1974, 416 U.S. 386, 94 S.Ct. 1741, 40 L.Ed.2d 215, in which the Supreme Court citing a number of Fifth Circuit decisions remanded the case to the Second Circuit for consideration of the advisability of certification to the Florida Supreme Court, and A. R. Moyer, Inc. v. Graham, 5 Cir., 1974, 492 F.2d 797, and West v. Caterpillar Tractor Company, Inc., 5 Cir., 1974, 504 F.2d 967.

      . Following our usual practice we beseeched counsel to arrive at an agreed statement of facts and certification and failing that to furnish the Court the portions on which there was agreement or disagreement together with the definitive positions of each of the parties with reasons therefore. There was irreconcilable conflicts, not so much on the question of the uncontradicted facts under the summary judgment record, but on the general approach to a certification problem. Consequently the Court has had to pick and choose between the proposals by plaintiffs and defendants and come up with its own statement of facts and questions to be certified. The record as certified will include not only all of the briefs and records but the exchange of counsel on the proposed statement of facts, questions to be certified, objections and comments so that the Supreme Court of Florida can see firsthand, where relevant, the choices made by us.

      . Because of the evidentiary detail required the certificate is not being published since it will undoubtedly be either set out in the opinion of the Supreme Court of Florida or appended to its opinion.


author: PER CURIAM:

text:
    Harvey Allen WARD, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-2701.
    United States Court of Appeals, Fifth Circuit.
    Feb. 20, 1975.
    John McGuigan, Atlanta, Ga., for petitioner-appellant.
    John W. Stokes, U. S. Atty., J. Robert Cooper, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee.

      Before DYER, MORGAN and GEE, Circuit Judges.
   PER CURIAM:

After trial on charges of interstate transportation of forged checks, violations of 18 U.S.C. § 2314, Harvey Allen Ward was found guilty by jury and sentenced by court on 8 September 1972, to a three-year prison term. When his conviction was affirmed on appeal, Ward filed a petition for reduction of sentence. At hearing on August 10, 1973, the court announced orally:

I am going to reduce his sentence, but I am going to do it this way. I think he ought to serve some time, and the only way I can give him any time is on a split sentence, and the maximum time I can give to serve on a split sentence is six months, so I am going to give him a split sentence of six months to serve and five years’ probation under very careful, strict, close supervision by the probation office.
* * * * * *
I want you to tell him, Mr. MeGui-gan, that if he so much as drinks one beer too many and gets into trouble with the authorities for anything, drunk driving, drunk on the streets, anything else, I am going to revoke his probation and he is going to prison for five years, and I don’t care whether it is on the last day of the fifth year of his probation. If I revoke it, he is going to serve the whole five years. TR. 92-93.

Defendant and his attorney were both present at the hearing. Ward was taken into custody on August 13, 1973, and began serving his sentence. Since no written order had been issued after the hearing, Ward wrote the court requesting confirmation of sentence. By reply letter of October 18, 1973, the court stated that the August 10 announcement was only a proposed reduction in sentence and that, owing to information obtained subsequent to the August hearing, the original sentence would be reduced to two years confinement. This decision was carried out by order of October 18, 1973. Defendant was not present at that time. Pursuant to 28 U.S.C. § 2255, Ward filed a motion to vacate the October 18 sentence as invalidly imposed in his absence, and beyond the power of the district court. The court below dismissed for failure to state a claim.

To the contrary, Ward’s position has merit. The oral pronouncement of sentence seems to us final. Even though the August order may not in the end have effected the reduction desired by the court, the court should not have imposed a more onerous sentence — as, logically, increased years of actual confinement must be regarded — when defendant was absent. Caille v. United States, 487 F.2d 614, 616 (5th Cir. 1973). Furthermore, on the facts of this case the court had no authority on its own initiative to impose a harsher sentence after the final August decision once Ward had commenced service of that sentence. “Under the old sentence he would have been out, although on probation. Under the new sentence, he is serving added time. The excess represents an incremental punishment, a separate term of incarceration This incremer,; is what the double-jeopardy clause . . . seeks to forbid The first sentence sets a maximum beyond which confinement could not continue.” Sullens v. United States, 409 F.2d 545, 547-548 (5th Cir. 1969). We know here that Ward has served more than six months. If the earlier sentence was improper for any reason, there were ways to correct it short of constitutional violation.

Accordingly, we reverse and remand with instructions to resentence Ward to not more than six months imprisonment and an appropriate probationary period as determined by the court in light of this opinion and Ward’s actual period of confinement.

      . An oral pronouncement of sentence is valid unless, in some instances, outside the presence of the defendant. See Rule 43, Federal Rules of Criminal Procedure. Any variance between oral and written versions of the same sentence will be resolved in favor of the oral sentence. Chunn v. United States, 462 F.2d 1100, 1102 (5th Cir. 1972); Patterson v. United States, 386 F.2d 142 (5th Cir. 1967); Henley v. Heritage, 337 F.2d 847, 848 (5th Cir. 1964).

      . The facts of this case do not fall within the exception founded on Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947).

      . If Ward violated the terms of his parole, the court could revoke probation and require service of the whole sentence. 18 U.S.C. § 3653. The trial court made its intention in this regard quite clear. He would have imposed five years in prison.


text:
    Robert VAN HORN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-1319
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 20, 1975.
    Rehearing and Rehearing En Banc Denied April 17, 1975.

      Robert Van Horn, pro se.
    John W. Stokes, U. S. Atty., J. Robert Cooper, Anthony M. Arnold, Asst. U. S. Attys., Atlanta, Ga., for respondent-ap-pellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, 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.

   PER CURIAM:

Appellant Van Horn appeals from the denial of his consolidated § 2255 motion and his motion for a new trial. These motions relate to his conviction for burglary and theft of government property in a United States Post Office in White, Georgia. 18 U.S.C.A. §§ 2115 and 641. We have heretofore affirmed his direct appeal of that conviction and his present motions do not merit reversal of that decision.

As his chief allegation, appellant argues that the District Judge improperly refused to suppress evidence obtained in a search of his trailer. The defect in' this search, appellant maintains, is that the information on which the police were acting was obtained from Thelma Miles, his traveling companion, after both he and Miles were subject to an illegal search at the time of their arrest. The evidence obtained in the first search was suppressed by the District Court but he upheld the validity of the second search on the basis that appellant was without standing to object to the information given by Miles. On the direct appeal we affirmed this issue.

Now appellant argues that the evidence of Miles that supplied probable cause for a search of his trailer home was a “fruit” of the original, illegal roadside search that occurred at the time of their arrest. United States v. Resnick, 5 Cir., 1973, 483 F.2d 354, 356-357; Gissendanner v. Wainwright, 5 Cir., 1973, 482 F.2d 1293, 1296-1297. However, we have no difficulty in determining that appellant’s contention is meritless for the identity of Miles was known to the police when she had aroused their attention by passing money orders among the merchants in Newnan, Georgia. This supplies the independent basis to her statements that eliminates any “fruits” problem.

Appellant secondly asserts that there is newly discovered evidence that justifies a new trial. He contends that he has evidence to demonstrate that Thelma Miles was in fact his wife and therefore ineligible to testify against him. Appellant points to a “marriage contract,” a birthday card from Thelma Miles, signed “your wife,” four check stubs made out to Mr. and Mrs. Robert Van Horn and testimony of witnesses who would say that the couple was known as husband and wife. But at trial the Miles/Van Horn marital status was given close attention. While Miles did testify that she had used his name, she said that they had never been married and that she had signed the “marriage contract” with him subsequent to the arrest. We conclude that the District Court had ample warrant to find that she was not appellant’s wife and properly admitted her testimony. The new evidence does not alter in the least this finding.

Similarly we find that appellant’s assertion that he lacked effective assistance of counsel due to the failure of counsel to produce the above documents in an effort to prove Miles was his wife and his assertion that he was denied a fair and full habeas corpus hearing due to the absence of Miles are both without merit.

Affirmed.

      . United States v. Altizer, 5 Cir., 1973, 477 F.2d 846.


text:
    James Richard BLASSINGAME, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 74-2893
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 20, 1975.
    Rehearing and Rehearing En Banc Denied April 9, 1975.
    James R. Blassingame, pro se.
    John L. Hill, Atty. Gen., Joe B. Dib-rell, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, 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:

Hearings were held during Blassingame’s trial — with the jury excused— to ascertain the suggestiveness vel non of pretrial identifications made by the two eyewitnesses produced at trial. The evidence adduced during those hearings adequately supports the District Court’s upholding the Texas trial court’s determination the witnesses’ “identification testimony was grounded on [their] independent recollection” of the incident alleged in the indictment. United States v. Allen, 5 Cir., 1974, 497 F.2d 160, 163.

Assuming, without deciding, the prosecutor’s closing argument was improper, the District Court’s denial of appellant’s application was correct because the trial court sustained defense objections to the argument. No curative instructions were given, but none were proposed or asked for. The judge’s sustaining the objections adequately protects Blassingame’s constitutional rights — at least where he failed to seek any curative instructions. See Henry v. Mississippi, 1965, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, and Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837.

Finally, appellant alleges police officers who testified they seized gloves from appellant’s car perjured themselves in order to “cover up” an illegal search. His further allegation the prosecutor and trial judge knew of the perjury and acquiesced in it raised constitutional issues concerning which no factual hearing has been held in either the state or federal court.

The only perjury alleged has to do with details concerning witnesses’ description of the suspect, and how each of the officers learned of it. But we hold the seizure of the gloves did not follow a “search”, because the gloves were in plain view on appellant’s car seat. The car was parked in a lot adjacent to a tavern and there is no question the officers were lawfully on that lot. The alleged perjury was therefore irrelevant. See Thompson v. Stynchcombe, 5 Cir., 1974, 494 F.2d 48.

Affirmed.

      . At the time of the defense objection, the prosecutor did contend his argument was based on reasonable inferences from the record.

      . The officers also testified a coat was discovered, but it was not introduced into evidence. In any event, our upholding the seizure of the gloves also disposes of any issues the coat might present.


author: GEE, Circuit Judge:

text:
    Dezzie Estelle Hinton COTTEN, Plaintiff, v. TWO "R" DRILLING COMPANY, INC., et al., Defendants-Appellants, v. JAMES CASING CREWS, INC., Defendant-Appellee.
    No. 73-3761.
    United States Court of Appeals, Fifth Circuit.
    Feb. 21, 1975.

      Frank M. Brame, Lake Charles, La., for defendants-appellants.
    Donald V. Organ, New Orleans, La., for defendant-appellee.
    Before TUTTLE, RONEY and GEE, Circuit Judges.
   GEE, Circuit Judge:

Three and a half years ago Lonnie Birl Cotten was killed by a falling joint of pipe while working as a member of a crew setting casing in an oil well. He was then an employee of Appellee James Casing Crews, Inc. (James). His death occurred on a submersible drilling barge owned and manned, except for James’ casing crew, by Appellant Two “R” Drilling Company, Inc. (Two “R”). The barge was then located on navigable waters in Lafourche Parish, Louisiana. James and Two “R” were each working at the time under separate contracts with Texaco Oil Company; there was no express contractual relationship between them.

Cotten’s beneficiaries under the Jones Act and general maritime law sued James and Two “R,” asserting that each was negligent and the barge unseawor-thy. James crossclaimed, seeking full indemnity for any damages which might be visited upon it and its costs and attorney’s fees as well. Special findings by the jury exonerated James but impaled Two “R” on both heads. James had judgment against Two “R” for its costs, expenses and the increment of attorney’s fees incurred by it in successfully resisting the claims of Cotten’s beneficiaries, but not those for pressing its cross-claim. Two “R” appeals from the award of attorney’s fees, asserting the general American rule that attorney’s fees are not recoverable by prevailing parties in the absence of statute or contract so providing and arguing that the Ryan triangle exception to the general rule does not cover this case. Though both principles advanced by Two “R” were true, these arguments come too late in the day and other, more precisely applicable, principles would require us, as we do, to affirm.

We have no quarrel with the general rule against recovery of attorney’s fees, as such, by a party which incurs them in enforcing a claim against another. It is equally well settled however, indeed it is hornbook law, that the reasonable expenses incurred by an in-demnitee in defending a claim against him may be recovered of his indemnitor — and that these expenses include attorney’s fees. We have so held in Kel-loch v. S & H Subwater Salvage, Inc., 473 F.2d 767, 771 (5th Cir. 1973), a suit for indemnity of a passive maritime tort-feasor against an active one. It would be strange indeed to hold that one who is guilty of no fault at all has no similar right. Nor are the two general principles in conflict, for in the indemnity situation the fees are recovered as reasonable and necessary expenses of defending, not qua attorney’s fees. Appellant would have us hold that, though other proper expenses are recoverable, attorney’s fees are not, being somehow stigmatized. We decline to do so.

Nor is whether Ryan extends to our fact situation dispositive. As the court below correctly noted:

The Supreme Court held in Kerma-rec v. Compagnie Generale Transatlan-tique that a shipowner owes to all who are on board, for purposes not inimical to his legitimate interests, the duty of exercising reasonable care under the circumstances. That duty of due care was extended to the stevedor-ing company as well, thus under federal maritime law, a shipowner owes a duty of due care to an independent contractor who came aboard to transact business and its breach will give rise to an independent cause of action for damages.

Appellant points to Ryan’s warranty of workmanlike performance as the basis of that decision. Though that be true, we held in Tri-State Oil Tool Industries, Inc. v. Delta Marine Drilling Co. that no contractual relationship between indem-nitor and indemnitee was necessary to recovery in circumstances like these:

It would be wrong to assess damages against a non-negligent or passively negligent shipowner for loss or injury suffered solely as the result of active negligence of another party, regardless of the absence of a contractual relationship between the parties.
This accident occurred in navigable waters; therefore, the federal maritime law is the applicable law. Ker-marec v. Compagnie Generale Transat-lantique, 358 U.S. 625, 628, 79 S.Ct. 406, 408, 409, 3 L.Ed.2d 550 (1959). As we have already indicated, maritime law provides for tort indemnity where there is no negligence or only passive negligence attributed to the indemni-tee.

410 F.2d at 186.

Two “R” breached its shipowner’s duty of due care owed James. That breach caused James to incur expenses in defending itself against suit by its employee, Cotten. Among those expenses were reasonable attorney’s fees. James may have them of Two “R”.

Affirmed.

      . Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956).

      . Other requisites of such recovery, not in contention here, being satisfied. 42 C.J.S. Indemnity § 24 (1944).

      . Here James was plainly within the “danger zone” of liability. A different case might well be presented had it been joined, say, frivolously, or by mistake in identity. See Strachan Shipping Co. v. Koninklyke Nederlandsche Stoomboot Maalschappy, 324 F.2d 746 (5th Cir. 1963), cert. denied, 376 U.S. 954, 84 S.Ct. 969, 11 L.Ed.2d 972 (1964).

      . 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959).

      . 410 F.2d 178 (5th Cir. 1969).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. J. D. BURKS, Defendant-Appellant.
    No. 74-3426.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 21, 1975.
    Pat H. Watts, Jr., Pascagoula, Miss., for defendant-appellant.
    Robert E. Hauberg, U. S. Atty., James B. Tucker, Asst. U. S. Atty., Jackson, Miss., for plaintiff-appellee.
    Before GEWIN, GOLDBERG and DYER, Circuit Judges.

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

   PER CURIAM:

Burks was convicted on six counts of aiding and assisting in the preparation of false and fraudulent tax returns, in violation of 26 U.S.C.A. § 7206. He seeks reversal of his conviction contending that improper evidence was admitted at trial, and that the prosecutor’s remarks were so prejudicial as to deny him a fair trial. We affirm.

An undercover agent went to Burks, who prepared a false return for him. Shortly thereafter a search warrant was obtained for seizure of Burks’ tax returns, record books, computation books, and other books, documents or papers relating to the preparation of tax returns. During the search agents seized a letter from Burks to his sister stating that he had cornered the market because he got more back for his clients. A motion to suppress the letter because it was not listed on the search warrant was denied. The letter was not introduced in the Government’s case in chief, rather it was used to cross-examine Burks for impeachment purposes and to show willfulness. In United States v. Kane, 5 Cir. 1971, 450 F.2d 77, 85, cert. denied, 1972, 405 U.S. 934, 92 S.Ct. 954, 30 L.Ed.2d 810, we said: “Evidence not described in a valid search warrant but having a nexus with the crime under investigation may be seized at the same time the described evidence is seized. [Citations omitted].” The letter had a nexus with the crime under investigation. It was properly admitted into evidence.

Burks next argues that the remarks of the prosecutor in opening and closing arguments were so prejudicial as to deny him a fair trial. In opening the prosecutor stated, “ . . . you could find that these people are lower class people who depended on Mr. Burks to prepare their tax returns properly.” The statement was objected to by Burks. The prosecutor explained he meant no disrespect but stated that these people did not have the education or ability to understand how to fill out tax returns. The court commented that was how he understood the remark.

In closing the prosecutor noted that Burks had prepared 368 returns resulting in over $200,000 in tax deficiencies, and argued that “[a] bank robber doesn’t make a haul like that.” The statement was objected to and sustained, and the judge instructed the jury to disregard the remark. Later the prosecutor stated: “That’s his people down in that community. They rely on him.” Burks did not object to the remark but now alleges it was a racial slur, so prejudicial as to constitute plain error.

In United States v. Rhoden, 5 Cir. 1972, 453 F.2d 598, 600, in considering the question of alleged improper prose-cutorial argument, we said:

Viewing the record as a whole, including those portions of the prosecutor’s argument to which objection was made, in the context of a hotly con-. tested trial and in light of the cautionary instructions given by the trial court, we are convinced that no reversible error was committed. The prejudicial effect, if any, of the alleged improper argument appears to be slight, while the evidence of guilt is overwhelming. Considering the totality of all the circumstances, it is our conclusion beyond a reasonable doubt, that even if the argument was improper it constituted no more than harmless error. A defendant is entitled to a fair trial not a perfect one.

Judged by the Rhoden standard, the remarks do not add up to reversible error.

A review of the record reveals no other errors of law. The conviction is affirmed.


author: THORNBERRY, Circuit Judge:

text:
    In the Matter of COMPUTER UTILIZATION, INC., Bankrupt. John A. PACE, Appellant, v. COMPUTER UTILIZATION, INC., Appellee.
    No. 74-3203
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 20, 1975.

      See also, D.C., 370 F.Supp. 450.
    James F. Menefee, Dallas, Tex., for appellant.
    Philip I. Palmer, Jr., Dallas, Tex., for appellee.
    Steve Ungerman, Dallas, Tex., for other interested parties.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

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

   THORNBERRY, Circuit Judge:

Computer Utilization, Inc. (CUI), a computer service corporation based in Garland, Texas, filed a petition for an arrangement under Chapter XI of the Bankruptcy Act on July 5, 1971. Over one year prior to filing, CUI had retained John A. Pace, a Dallas attorney, to handle various collection matters. It is undisputed that prior to filing, Pace had performed a considerable amount of services in the various collection matters, but had not billed CUI for those services. Pace also performed some work after the July 5, 1971 filing, though he was somewhat vague at trial as to the nature and extent of those services. In its Chapter XI petition, CUI' did not schedule Pace either as an unsecured creditor or as a party to an executory contract. The referee confirmed an amended plan of arrangement based upon the petition on September 16, 1971.

In May 1972, Pace filed suit in state district court for Dallas County, Texas to recover for his services. On November 21, 1972, the trustee filed an application for an order to show cause why the state court proceedings should not be enjoined. After a hearing, the referee entered a permanent injunction prohibiting Pace from pursuing his state claim and the district court below affirmed that decision. Pace now appeals, claiming that since CUI failed to satisfy the notice requirements for rejection of executory contracts, the adoption of the arrangement does not discharge his claim. We disagree and affirm the decision below.

Pace and CUI executed no formal employment contract, but it is undisputed that Pace represented CUI on a continuing basis since May 1970. He seeks recovery primarily for services rendered prior to the filing of the petition. As to those services, Pace clearly had a provable claim at the time of filing. The fact that Pace had not yet billed CUI is immaterial. He had already performed the services and CUI had incurred the obligation to pay for them. 11 U.S.C. § 35(a) provides “[a] discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part . . . .” 11 U.S.C. § 35(a)(3) excepts from the discharge provision those debts that “have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy.”

The record testimony in the court below makes it clear that Pace cannot claim the benefit of the exception. Pace himself testified that he had actual knowledge of the bankruptcy proceedings. He was fully aware that the petition had been filed and that his name did not appear on the list of unsecured creditors. Yet Pace took no action. Under 11 U.S.C. § 35(a), adoption of the arrangement discharged Pace’s claim for services rendered prior to. the filing of the petition.

As part of his claim, Pace seeks to recover for services rendered after the Chapter XI petition was filed. Here, however, it is undisputed that Pace was not appointed to render services in accordance with General Order 44. The claim for those services is also barred. Becker v. Stewart, 402 F.2d 500 (5th Cir. 1968); In re HydroCarbon Chemicals, Inc., 411 F.2d 203 (3d Cir. 1969), cert. denied, 396 U.S. 823, 90 S.Ct. 66, 24 L.Ed.2d 74; 1 Collier Bankruptcy Manual 1 62.06 (2d Ed. 1974).

Pace concedes that most of the services were rendered prior to the filing of the petition, but argues that his failure to bill the bankrupt and the continuing nature of his representation made the contract executory. He then argues that CUI failed to comply with the notice requirements for discharge of executory contracts under Chapter XI, preventing discharge of his claim. Pace’s proof of damages, however, belies these assertions. He presented no evidence of loss of future income; instead he sought recovery for services already rendered. The contract is not executory for purposes of the bankruptcy statute where the only performance due from the debt- or is payment. See Stell Mfg. Co. v. Gilbert, 372 F.2d 113 (5th Cir. 1962).

Pace worked closely with the bankrupt when CUI instituted the Chapter XI proceedings. He was fully aware of the company’s financial problems, and the status of the bankruptcy proceedings. Yet he took no affirmative action to protect his own rights. The district court properly denied Pace’s claims for attorney’s fees, and properly issued the injunction under 11 U.S.C. § 35(c)(3).

Affirmed.


text:
    Jac O. ULLMAN, Jr., Plaintiff-Appellee, V. OVERNITE TRANSPORTATION COMPANY, Transport Insurance Company, and R. Gayle Dean, Defendants-Appellants, Spider Wrecker Service, Inc. et al., Defendants-Appellees.
    No. 74-1942.
    United States Court of Appeals, Fifth Circuit.
    Feb. 21, 1975.
    Rehearing and Rehearing En Banc Denied April 14, 1975.
    A. Paul Cadenhead, James C. Gaulden, Jr., Atlanta, Ga., for defendants-appellants.
    Thomas M. Strickland, Legal Aid and Defender Society, Athens, Ga., for Vaughn, and others.
    Hugh M. Dorsey, Jr., Robert B. Wedge, David A. Handley, Dent Aeree, Sidney F. Wheeler, George H. Connell, Jr., Atlanta, Ga., for Jac O. Ullman, Jr.
    Before DYER, MORGAN and GEE, Circuit Judges.
   PER CURIAM:

Georgia law governs this diversity case brought by a passenger against the driver of the vehicle in which he was riding, the owner of a jack-knifed truck and its insurance carrier, several wrecker companies and various of their individual employees for damages for his injuries and the death of his wife. Trial to a jury resulted in a verdict and judgment for plaintiff against the truck owner, its carrier and one of its employees, R. Gayle Dean. The other defendants were exonerated by the jury and recovered take-nothing judgments. Since we reverse for error which could in no way have affected the verdict or judgment in their favor, these take-nothing judgments are affirmed.

The tragic events which gave rise to this action occurred in October 1971, when plaintiff and his wife, both of whom had just graduated from Furman and been married in June, were riding to a homecoming weekend there with plaintiff’s former roommate in his camper automobile. In anticipation of the festivities, and because of advantageous prices, plaintiff’s wife had purchased a case and a six-pack of beer plus two bottles of bourbon whiskey at Ft. Ben-ning, where plaintiff was serving a short tour of active duty. They then drove to Atlanta, where they met the roommate, left their vehicle, and at about 8:00 p.m. continued their jaunt in his camper. Night came on, with intermittent rain and fog. All of the occupants of the camper had several drinks. There was testimony that the driver had had two beers before leaving, one at about 5:00 p.m. and another between 6:15 and the time of their departure, that plaintiff mixed and served the driver two bourbon drinks as he drove, and that plaintiff had two and his wife four or five. At about 10:00 p.m., the camper struck a cable stretched across the highway by the exonerated defendants, causing plaintiff’s injuries and his wife’s death. Flagmen with lights, including defendant Dean, were posted, and there was testimony to revolving lights on the wreckers, flares or fusees on the highway, etc. Other witnesses disputed the degree of these warning measures, and plaintiff testified he saw no flares or revolving lights, only a sudden red flash as they topped a hill before striking the cable several hundred feet further on.

At trial the court, though requested to do so, refused to charge on plaintiffs’ duty to exercise ordinary care for their own safety (contributory negligence) or on comparative negligence. It did charge on assumption of risk, a significantly differing and more onerous defense under Georgia law. These refusals were error.

Georgia courts have long held that one who knowingly rides with a driver who is under the influence of intoxicating liquor may be found negligent in his own right, independently of the driver’s conduct. Reasonable men could conclude that plaintiff, necessarily knowing of and contributing to the driver’s consumption of bourbon since he served it, was guilty of some degree of negligence, especially when the dangerous driving conditions and the conflicting evidence about the amount and character of warning signals are taken into account. On the evidence in this record, it appearing that any negligence on plaintiff’s part may have been among the proximate causes of the accident as well as of the injuries, the jury should have been so instructed as to have afforded them the opportunity to pass on these questions.

In part affirmed, and in part reversed and remanded.

      . Georgia having a guest statute, the jury finding as to the driver concerned only gross negligence and did not determine whether he was ordinarily negligent or not.

      . The instructions which the defendants requested probably were not correct in every respect. Nevertheless, whatever their deficiencies, they were sufficient to put the trial court on notice that the evidence raised issues as to the contributory and comparative negligence of the plaintiff, and perhaps the contributory negligence of his wife. “[Ejven if a requested instruction is not entirely perfect, it may in some situations impose upon the court the duty to give a more specific instruction on a particular issue where it soundly appears that such an instruction is needful to enable the jury to intelligently determine the question.” Chicago & North Western Ry. Co. v. Rieger, 326 F.2d 329, 334 (8th Cir.), cert. denied, 377 U.S. 917, 84 S.Ct. 1182, 12 L.Ed.2d 186 (1964). See also, Florists’ Nationwide Telephone Delivery Network-America’s Phone-Order Florists, Inc. v. Florists’ Telegraph Delivery Assn., 371 F.2d 263, 270 (7th Cir.), cert. denied, 387 U.S. 909, 87 S.Ct. 1686, 18 L.Ed.2d 627 (1967). This was such a case. The refusal of the trial court to submit any instructions on either contributory or comparative negligence deprived the defendants of their major — well-nigh their only — affirmative defenses.

      . Jones v. Petroleum Carrier Corporation of Florida, 483 F.2d 1369 (5th Cir. 1973); Powell v. Berry, 145 Ga. 696, 89 S.E. 753, 755 (1916); Durrett v. Farrar, 130 Ga.App. 298, 203 S.E.2d 265, 271 (1973); Waggoner v. Bevick, 127 Ga.App. 877, 195 S.E.2d 246, 247 (1973); Petroleum Carrier Corporation of Florida v. Jones, 127 Ga.App. 676, 194 S.E.2d 670 (1972); Mann v. Harmon, 62 Ga.App. 231, 8 S.E.2d 549 (1940).

      . Nor, though we intimate no holding thereon, is it entirely clear that the jury was bound by the surviving occupants’ allocation of the drinks among the occupants of the camper, eight or nine drinks in a two-hour period being admitted and both plaintiff and the defendant driver having conceivable incentives to minimize the driver’s consumption.


text:
    Charity HARRISON et al., Plaintiffs-Appellants, v. GOODYEAR TIRE AND RUBBER COMPANY, Defendant-Appellee.
    No. 74-1728.
    United States Court of Appeals, Fifth Circuit.
    Feb. 20, 1975.
    David H. Hood, Jr., Bessemer, Ala., Nathaniel R. Jones, New York City, Josephine Trevetian, EEOC, Washington, D. C., for plaintiffs-appellants.
    William F. Gardner, Birmingham, Ala., for defendant-appellee.
    Before DYER, MORGAN and GEE, Circuit Judges.
   PER CURIAM:

This employment discrimination case was initially brought by two black women who unsuccessfully sought employment in the production department of Goodyear Tire and Rubber Company’s Gadsden, Alabama plant.

On June 19, 1967, appellants Charity Harrison and Gussie Hardwick filed charges with the Equal Employment Opportunity Commission, alleging employment discrimination against black females — a violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq. (1974)). After the EEOC authorized appellants to file suit, they initiated the present proceeding as a Fed.R.Civ.P. class action on their own behalf and the behalf of all others similarly situated. After an extensive trial, the district court made findings of fact and entered judgment in Goodyear’s favor.

Plaintiffs renew their arguments • on appeal. Of course, findings of fact in Title VII cases are reviewed in the same manner as any other trial court findings: this court will not set the findings aside unless it is able to conclude that such findings are clearly erroneous.' See, Smith v. Delta Airlines, 486 F.2d 512, 514 (5th Cir. 1973); Terrell v. Feldstein Co., 468 F.2d 910, 911 (5th Cir. 1972); Fed.R.Civ.P. 52(a).

We have examined the record thoroughly and we find sufficient evidence to support the district court’s decision that Goodyear did not discriminate in the employment of black females. Therefore, since the lower court’s decision is not clearly erroneous, the judgment is

Affirmed.


text:
    Fred POSTEL, Petitioner-Appellant, v. Dr. George J. BETO, Director, Respondent-Appellee.
    No. 73-1088.
    United States Court of Appeals, Fifth Circuit.
    Feb. 24, 1975.
    Harry H. Walsh, Donald L. Kraemer, Tex. Dept, of Corrections, Huntsville, Tex., for petitioner-appellant.
    John L. Hill, Atty. Gen. of Tex., Dunk-lin Sullivan, Gilbert Pena, Asst. Attys. Gen., Austin, Tex., for respondent-appel-lee.
    Before BROWN, . Chief Judge, and COLEMAN and DYER, Circuit Judges.
   PER CURIAM:

This appeal of the denial of petitioner’s § 2254 habeas petition asserts a double infirmity in petitioner’s murder trial in 1951. First, Postel argues that he was denied his right to appeal since his retained counsel was not present at sentencing and failed to advise him of this right. It is the settled rule in this Court that the failure of the state trial court to advise a convicted defendant of his right to appeal is no violation of constitutional rights unless it knows or has reason to know that he wishes to appeal and knows or has reason to know that he is an indigent. Johnson v. Wainwright, 5 Cir., 1972, 456 F.2d 1200; Beto v. Martin, 5 Cir., 1968, 396 F.2d 432; Worts v. Dutton, 5 Cir., 1968, 395 F.2d 341. Neither of these two conditions were met.

Petitioner’s second ground for appeal is the claim of ineffectiveness of his retained counsel by his failure to appear for sentencing and advise petitioner of his right to appeal. As this inescapably involved the question of state action for errors or omission of retained counsel this case has been held pending our en banc decision in Fitzgerald v. Estelle, 5 Cir., 1974, 505 F.2d 1334. In line with the holding in this case we have carefully examined the record and determined that the District Court had ample basis for concluding that the actions of retained counsel did not operate to deprive the trial of fundamental fairness as required by the Fourteenth Amendment and that he was not less than reasonably effective in violation of the Sixth Amendment.

Affirmed.