author: MARIS, Circuit Judge.

text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, James D. Hodgson and United States of America v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY et al. Appeal of COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, in Nos. 74-1321 and 74-1323. Appeal of AMERICAN TELEPHONE AND TELEGRAPH COMPANY et al. in Nos. 74-1322 and 74-1324.
    Nos. 74-1321 to 74-1324.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 18, 1974.
    Decided Dec. 19, 1974.

      Richard H. Markowitz, Markowitz & Kirschner, Philadelphia, Pa., for Communications Workers of America appellant in Nos. 74-1321 and 74-1323.
    Thompson Powers, Steptoe & Johnson, Washington, D. C., for American Telephone and Telegraph Company and others, appellees in Nos. 74-1321 and 74-1323 and appellants in Nos. 74-1322 and 74-1324.
    Richard S. Cohen, Washington, D. C., for Equal Employment Opportunity Commission, appellee.
    Before MARIS, GIBBONS and WEIS, Circuit Judges.
   OPINION OF THE COURT

MARIS, Circuit Judge.

On January 18, 1973 the Equal Employment Opportunity Commission (herein referred to as EEOC), James D. Hodgson, as the federal Secretary of Labor, and the United States of America filed a complaint in the District Court for the Eastern District of Pennsylvania charging the American Telephone and Telegraph Company and 24 of its affiliated operating companies (herein collectively referred to as AT&T) with violation of section 15(a)(2) of the Fair Labor Standards Act (Count 1), of Title VII of the Civil Rights Act of 1964 as amended (Count 2), and of Executive Order 11246 promulgated pursuant to the Civil Rights Act of 1964 (Count 3). On the same day an answer was filed by AT&T. Later on the same day the district court entered a decree which was approved and consented to by the three plaintiffs and by the American Telephone and Telegraph Company “for itself and on behalf of its associated telephone companies”. The consent decree embodied, amplified, clarified and enforced a memorandum of agreement which had been entered into on the same date between AT&T, EEOC and the United States Department of Labor under which AT&T undertook to implement the model affirmative action program, upgrading and transfer plan, and job briefs and qualifications which were attached thereto as exhibits, for the purpose of promoting equal employment opportunities to minorities and women.

On February 9, 1973 the Communications Workers of America, AFL-CIO (herein referred to as CWA) filed a motion to intervene in the action. CWA asserted that it was the recognized bargaining agent for approximately 600,000 of the non-management employees of AT&T, that it had collective bargaining agreements with all the defendant companies, except Southern New England Telephone Company, Bell Telephone Company of Pennsylvania and Diamond State Telephone Company, and that the memorandum of agreement and consent decree contradicted certain provisions of certain of CWA’s collective bargaining agreements and were inconsistent with, or could be interpreted in a fashion contrary to, them. Asserting that as collective bargaining representative of the employees of AT&T, it had filed complaints against AT&T alleging violations of Title VII of the Civil Rights Act of 1964, and that it had never been given an opportunity to be a party to this action or to participate in the negotiations leading to the memorandum of agreement and consent decree, CWA sought to intervene as a party plaintiff in the action and to file a complaint therein under clause (1) of Rule 24(a) of the Federal Rules of Civil Procedure as a matter of statutory right or under paragraph (2) of that rule because the disposition of the action will, as a practical matter, impair its ability to protect its interests.

The plaintiffs opposed the intervention of CWA as a party plaintiff under Rule 24(a). Clause (1) of that rule is applicable-when a statute of the United States confers an unconditional right to intervene. With respect to intervention under this clause of the rule the plaintiffs urged (1) that the Fair Labor Standards Act does not give the right to intervene in an action by the Secretary of Labor instituted pursuant to section 17 of that Act, (2) that CWA is not a person aggrieved within the meaning of section 706(f) of Title VII of the Civil Rights Act of 1964 as amended and, therefore, does not have the right to intervene under that section, and (3) that CWA can have no statutory right to intervene under the regulations issued under Executive Order 11246, since that order is not a statute of the United States. Clause (2) of Rule 24(a) is applicable when the proposed intervenor claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest. With respect to intervention under clause (2) of the rule, the plaintiffs urged that CWA has no interest relating to the property or transaction which is the subject matter of the consent decree and that even if it had such an interest the disposition of the action cannot as a practical matter impair or impede its ability to protect its interest, citing a provision of the decree that nothing therein is intended to restrict the right of AT&T and the collective bargaining representatives of their employees to negotiate alternatives to the provisions of the decree which would be in compliance with federal law.

The plaintiffs also asserted that since CWA in its proposed complaint as intervenor opposes the changes made by the consent decree in its collective bargaining agreements with AT&T it is not seeking to join the plaintiffs in claiming the relief sought by their complaint, but is in fact opposing that relief and is, therefore, in the position of a defendant rather than a plaintiff. The fact that CWA did, as it alleges, file certain actions before EEOC on behalf of women employees regarding employment practices relating to pregnancy and childbirth does not make CWA a person aggrieved with respect to the present action, say the plaintiffs, since the present complaint and consent decree do not deal with those practices. The plaintiffs conceded, however, that because the consent decree and memorandum of agreement do modify some of the provisions of CWA’s collective bargaining agreements with AT&T and because CWA has a legitimate interest in the questions of what the federal law and the consent decree require, it might be appropriate to permit CWA to intervene as a party defendant, and they interposed no objection to such intervention. AT&T, on the other hand, opposed CWA’s application for intervention in toto.

Affidavits were submitted to the district court by CWA and by the plaintiffs and AT&T setting out the pertinent facts with respect to certain proceedings which had been prosecuted before the Federal Communications Commission by EEOC against AT&T with respect to alleged unlawful and discriminatory employment practices of AT&T with regard to women, blacks, Spanish-surnamed Americans and other minorities, and which were ultimately terminated by the memorandum of agreement between the parties of January 18, 1973 and the consent decree of the same date.

The district court held a full hearing on the application of CWA for leave to intervene. In a comprehensive and well-reasoned opinion by Judge Higginbotham, 365 F.Supp. 1105, the court described the course of the agency proceedings disclosed by the affidavits which led to the memorandum of agreement and fully discussed all the issues raised by the parties. Although holding, we think rightly, that the application for intervention was not untimely, the court concluded that CWA was not entitled under either clause of Rule 24(a) to intervene as a party plaintiff and to file a complaint in the action except with respect to maternity benefits fop pregnant females as to which CWA had previously filed complaints with EEOC. Accordingly, by an order entered October 5, 1973, the court denied CWA’s motion except to the extent indicated. CWA then filed an amended complaint limited to the issue of maternity benefits and a motion to reconsider the denial of its motion to intervene generally as a party plaintiff. CWA also asked the court to enter a final judgment under Rule 54(b) of the Federal Rules of Civil Procedure. On March 12, 1974 the district court entered what was termed a final judgment under Rule 54(b) denying CWA’s motion to reconsider and enlarge the scope of its intervention, and also denying a motion which AT&T had made to dismiss the amended complaint which CWA had filed pursuant to the original order of the court. From the order of October 5, 1973 and the final order on reconsideration of March 12, 1974, denying its motion to intervene generally, CWA took separate appeals (Nos. 74-1321 and 74-1323, respectively). AT&T took cross appeals from those portions of the same orders which granted CWA a limited right of intervention and denied AT&T’s motion to dismiss CWA’s amended complaints (Nos. 74-1322 and 74-1324, respectively).

For the reasons which will be elaborated we think that the district court did not err in denying CWA the right to intervene generally as a party plaintiff in this action. We conclude, however, that CWA should be accorded, if it so requests, the right to intervene as a party defendant to protect its interest in its collective bargaining agreements with AT&T by seeking modification by the district court of those provisions of the consent decree which affect those agreements.

We consider first the claim of CWA to intervene under clause (1) of Rule 24(a). That clause deals with the situation “when a statute of the United States confers an unconditional right to intervene”. CWA claims such an unconditional statutory right here. The district court held that the Fair Labor Standards Act does not confer such a right of intervention in an action brought, as was Count 1 of the complaint in this case, by the Secretary of Labor under section 17 of that Act. That ruling is not here contested by CWA. The court also held that no statutory right to intervene could be conferred by the regulations issued under Executive Order 11246 upon which CWA relied, since that order was not a “statute of the United States” within the scope of Rule 24(a)(1). We think that the district court did not err in so ruling. While it is true that we have held that the regulations issued under Executive Order 11246 have the force and effect of law, Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 3 Cir. 1971, 442 F.2d 159, 175, it is quite a different thing to say that the Executive Order and regulations are themselves statutes. This we cannot do.

Section 706(f)(1) of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C.A. § 2000e-5(f)(1), which authorizes the Equal Employment Opportunity Commission to bring an action, such as Count 2 of the plaintiffs’ complaint, to remedy unlawful employment practices, specifically provides that the “person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission or the Attorney General in a case involving a government, governmental agency, or political subdivision”. Since the section expressly restricts suits by the Commission to those against respondents who are not “a government, governmental agency, or political subdivision”, and assigns the bringing of suits against the latter solely to the Attorney General, it seems clear that the limiting clause “in a case involving a government, governmental agency, or political subdivision” which appears in the statutory grant of the right of intervention applies only to suits by the Attorney General and not to suits by the Commission. However, the limiting provision that one seeking intervention must be “aggrieved” clearly does apply to both types of suit and is applicable here.

The district court held that the ^aggrievement which a prospective intervenor must show in order to secure the right to intervene under § 706(f)(1) must relate back to the grievances with respect to unlawful employment practices which have been alleged in charges previously filed with the Commission and to remedy which the suit has been brought by the Commission. We agree that the statutory language must be so read. We /held in Hackett v. McGuire Brothers, Inc., 3 Cir. 1971, 445 F.2d 442, that an “aggrieved” person is any person aggrieved by any of the practices forbidden by the statute. Whether intervention must nonetheless be denied to one making such a showing unless he himself has actually filed a charge of unlawful employment practices with the Commission we need not determine. But compare Hackett v. McGuire Brothers, Inc., supra, p. 445. We are satisfied that in any case the statutory term “aggrieved” is not intended to encompass the aggrievement which one may feel by reason of the adverse effect upon his existing contractual rights and practices which a decree granting the relief sought by the Commission’s suit may have. Here the only grievance of the former kind which CWA asserts involves the charges which it had previously filed with the Commission regarding AT&T’s employment practices with respect to maternity leave. As to these grievances the district court has granted it leave to intervene as a party plaintiff and it has filed an amended complaint limited to those grievances. AT&T oppose this action, asserting that the issues relating to maternity-leave practices were not raised by the plaintiffs’ complaint and are not involved in the suit, and they have sought by their cross appeals to have us review the action. However, since these appeals must be dismissed for want of jurisdiction, as we shall later point out, we do not reach this question. We merely hold that the district court to the extent that it denied CWA the right to intervene as a plaintiff under § 706(f)(1) acted properly upon a correct reading of the extent and limits of the right of intervention given by that section of the statute.

We need only add at this point that the claim of CWA to be “aggrieved” by the unlawful employment practices to which the suit is directed because many of the minority employees and women alleged to have been unlawfully discriminated against are its members is without merit. CWA urges that it should be permitted to intervene in their interest as representative of them as a class. We cannot agree. For not only did CWA make no such claim in the original complaint which it tendered in intervention but its position as bargaining representative of all its members, both those aggrieved and the equally large, if not larger, number of those who are not adversely affected by, and indeed may to some degree benefit from, the alleged unlawful employment practices, clearly disqualifies it from acting in this action as a class representative on behalf of the former group. CWA v. New York Telephone Co. & Empire City Subway Co., S.D.N.Y.1974, 8 F.E.P. 509.

We turn, then, to the question whether the district court erred in denying CWA the right to intervene under clause (2) of Rule 24(a). Putting to one side the complaint of CWA as to maternity benefits, as to which complaint it was permitted by the district court to intervene as a party plaintiff and to which subject alone its amended complaint in intervention is directed, it is perfectly clear from the record that CWA’s position is not that of a complainant against AT&T’s alleged discriminatory employment practices with respect to women and minority groups, to the elimination of which the complaint and the consent decree are directed. On the contrary, it is that of a defendant opposing modifications in its collective bargaining agreements with AT&T which the consent decree entered by the court has made in favor of those groups.^. Although repeatedly invited to join in the negotiations which led to the memorandum of agreement and consent decree, CWA consistently declined to do so, participating only very peripherally. Moreover, although stating that it was applying for intervention as a party plaintiff, the relief which it sought was an injunction restraining AT&T “from unilaterally implementing practices which are contrary to the provisions of their respective collective bargaining agreements” with AT&T and specifically “from implementing the Memorandum of Agreement of January 18, 1973” with AT&T “in any way which would change the practices and procedures in effect under the existing collective bargaining agreements” with AT&T. It was, of course, this memorandum of agreement of January 18, 1973 which it was the purpose of the consent decree entered by the district court to enforce. CWA’s original complaint, moreover, asked that the consent decree be suspended until CWA and AT&T “have either reached agreement on issues affecting wages, hours and conditions of employment, or the said issues have been determined by the Court after full opportunity to be heard by all interested parties”.

Nothing can be clearer than that the position thus taken by CWA is one in defense of- its existing collective bargaining agreements and in opposition to the changes made in them without its consent by the memorandum of agreement of January 18, 1973 and the consent decree which approved and enforced that agreement. This is the position of one who is opposing the relief which is sought in the present action and which has been granted by the consent decree and who desires to defend his existing rights against impairment by that decree. It is the very antithesis of the position which would be taken by a plaintiff who desired to assert and enforce the rights of the minorities which the present action seeks to enforce through the modification of existing employment practices many of which are embodied in the collective bargaining agreements between AT&T and CWA. It necessarily follows that CWA is not entitled to intervene generally as a party plaintiff. The district court, therefore, did not err in denying CWA this right. By the same token, however, we think that CWA should be permitted, if it so desires, to intervene under Rule 24(a)(2) as a party defendant. Clearly CWA has an interest in the provisions of its collecti ve bargaining agreements with AT&T which may well be modified or invalidated by the memorandum of agreement and consent decree of January 18, 1973 made in its absence and, equally clearly, its continuing ability to protect and enforce those contract provisions will be impaired or impeded by the consent decree. It is, therefore, entitled to seek their lawful modification by intervention as a party defendant in the action, if it so desires.

But little need be said with respect to the cross appeals taken by AT&T from the action of the district court in allowing CWA to intervene as a party plaintiff in support of its demands for improved maternity-leave benefits and its refusal to dismiss CWA’s amended complaint in support of those demands. The portions of the orders which dealt with those matters and which are the subject of these appeals were inherently interlocutory Since they did not terminate any phase of the litigation. Ionian Shipping Co. v. British Law Insurance Co., 2 Cir. 1970, 426 F.2d 186. They were not the sort of orders, such, for example, as orders terminating a suit as to one or more but less than all the defendants or as to one or more but less than all the claims for relief, which may be rendered appealably final by the inclusion by the district court in its order of an appropriate rubric under Rule 54(b) of the Federal Rules of Civil Procedure. See Sears, Roebuck & Co. v. Mackey, 1956, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297. The cross appeals must accordingly be dismissed for want of jurisdiction.

The appeals of American Telephone and Telegraph Company and associated companies (Nos. 74-1322 and 74 — 1324) will be dismissed. On consideration of the appeals of Communications Workers of America, AFL-CIO (Nos. 74-1321 and 74-1323) the orders of the district court entered October 5, 1973 and March 12, 1974 will be affirmed, with leave to the appellant, within a reasonable time to be fixed by the district court, to apply, if it so desires, for leave to intervene as a party defendant, limited to the issues raised and relief sought by the plaintiffs’ complaint and the provisions of the consent decree.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Irma RAMIREZ, Defendant-Appellant.
    No. 74-3429
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 15, 1975.

      Horace C. Hall, III, Laredo, Tex., R. Norvell Graham, Jr., San Antonio, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Edward B. McDonough, Jr., James R. Gough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

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

   PER CURIAM:

Appellant, Irma Ramirez, seeks reversal of her conviction at a bench trial for conspiracy, possession with intent to distribute, and importation of heroin. In this appeal she alleges (1) that there was no probable cause for her warrantless arrest and search, (2) that the trial court erred in not requiring production of one of the agent’s memoranda for cross-examination purposes, and (3) that the evidence of guilt was insufficient to sustain her conviction. A review of the record reveals a possible lack of evidence to support the conspiracy count. The evidence was ample as to possession and importation. Under the concurrent sentence doctrine, we affirm the judgment of conviction.

On March 28, 1974, Drug Enforcement Administration Agent McCullough received a call from a confidential informant that an unknown male would be using a white over red 1968 or 1969 Buick Riviera to go south of San Antonio, either to Laredo or part of the way toward Laredo, and would be bringing back an unknown quantity of heroin. Agent McCullough and Officer Flores of the San Antonio Police testified the informant had supplied information on at least 15 prior occasions. Agent McCullough and two other Drug Enforcement Administration Agents set up surveillance south of San Antonio on Interstate 35 and observed a white over maroon Riviera occupied by a male and female, with the female driving. The vehicle was tailed into Laredo where it stopped at a Fina gas station for about one hour.

During that time the woman left the Buick and got into a brown and white Plymouth or Dodge containing another woman and a small child which proceeded over the International border bridge into Mexico. The woman was recognized by one of the officers on the scene as Irma Ramirez, common law wife of a known narcotics dealer in San Antonio. Her male companion was later identified as Louis Garcia Hernandez, Jr. The Plymouth was registered to appellant Ramirez. She stayed in Mexico visiting a residence there about fifteen to twenty minutes, and then returned to the Fina station and the Buick Riviera. With appellant driving, she and the man, taking the child with them in the Riviera, then proceeded on Interstate 35 back toward San Antonio. They were stopped at the Border Patrol checkpoint approximately eleven miles north of Laredo. The occupants were taken out of the car and questioned. During questioning Officer Flores observed appellant drop a balloon-like object from her hand and try to kick it under the car. The object was a rubber prophylactic containing brown Mexican heroin. Appellant was then arrested.

Appellant argues that the officers and agents had no probable cause to make the warrantless search and arrest based on an informer’s tip that was essentially a car description. A stop and search of a moving automobile can be made without a warrant where there is probable cause. Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Chambers v. Maroney, 1970, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Coolidge v. New Hampshire, 1971, 403 U.S. 443, 91 S.Ct. 2002, 29 L.Ed.2d 564. A warrantless search under the Carroll line of cases must be supported by probable cause in the sense of specific knowledge about a particular automobile. Here there was such specific knowledge about the particular Buick Riviera automobile and one of the occupants of the car was recognized as the wife of a known narcotics dealer. Additionally, there was contact with the border, and that contact was known by the agents who stopped and searched appellant. Under the circumstances here, there was probable cause to stop appellant and search her.

While Agent McCullough was being questioned at the hearing on the motion to suppress, reference was made to the fact that he had prepared a memorandum or note contemporaneously with his conversation with the informer. Appellant’s counsel’s request to examine the memo was denied by the trial court. Under the Jencks Act, Title 18, U.S.C., § 3500, disclosure of such materials is required only “at trial”. There is no requirement for prior disclosure. Additionally here, when the evidence on the motion was stipulated into evidence at trial, the court indicated its willingness to have the memo produced but defense counsel voiced no further desire to examine the memo. Appellant has thus failed to preserve the point for appellate review.

Finally, appellant challenges the sufficiency of the evidence on the conspiracy and importation counts. Sufficiency of the evidence to support the possession count is not questioned. Because of the factual circumstances of this case, because of appellant’s crossing the international border, and because of the United States Supreme Court’s decision in Turner v. United States, 1970, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610, which held that heroin possession within the United States is possession of a smuggled drug, and that one who possesses heroin within the United States is charged with the knowledge that the drug was unlawfully imported, there was sufficient evidence of importation of heroin. See Glasser v. United States, 1941, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680.

The appellant urges that as shown by the brief recitation of the facts hereinabove there was a fatal dearth of evidence as to the conspiracy charge, Count One. The members of the conspiracy were charged to be the appellant and Louis Garcia Hernandez, Jr., her companion on the trip to Laredo and back to the border checkpoint. His traveling with the appellant was the primary evidence connecting him with the unlawful enterprise. He did not go into Mexico, but waited in the Buick Riviera while appellant went across the border. He is not directly shown to have been aware that Mrs. Ramirez was in possession of the heroin until she dropped it from her hand and attempted to kick it under the car during questioning by Officer Flores at the border checkpoint. The argument continues that without Garcia Hernández’s participation as a co-conspirator, no conspiracy existed. We find it unnecessary to rule upon this contention. Concurrent sentences to five years confinement and special parole terms of three years were imposed as to each of Counts One, Two and Three. Inasmuch as we have determined that the appellant’s convictions under Counts Two and Three for possession with intent to distribute and for importation were without error, the error with respect to the conviction under Count One, if it occurred, is harmless under the concurrent sentence doctrine. Roviaro v. United States, 1956, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639; United States v. Stone, 5 Cir. 1973, 472 F.2d 909, 916, and the cases cited therein.

The judgment of conviction is

Affirmed.


text:
    Dick H. CARSON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 74-1260.
    United States Court of Appeals, Fifth Circuit.
    Jan. 15, 1975.
    Lester L. May, Kenneth A. Herridge, Dallas, Tex., for plaintiff-appellant.
    Frank D. McCown, U. S. Atty., Ft. Worth, Tex., Martha J. Stroud, Asst. U. S. Atty., Dallas, Tex., George T. Rita, Tax Div., Dept, of Justice, Meyer Rothwacks, Chief, Appellate Sec., Robert S. Watkins, Atty., Scott P. Crampton, Asst. Atty. Gen., John P. Burke, Murray S. Horwitz, Attys., Tax. Div., Dept, of Justice, Washington, D. C., for defendantappellee.
    Before RIVES, WISDOM and COLEMAN, Circuit Judges.
   PER CURIAM:

This is an appeal by Dick H. Carson from an order of the District Court dismissing, for lack of jurisdiction, a complaint seeking injunctive relief from and recovery of taxes allegedly erroneously collected.

We affirm.

The facts may be summarized as follows:

On September 18, 1973, Carson filed a complaint in the District Court for the Northern District of Texas, alleging that on May 24, 1973, Dallas police officers arrested him, searched his apartment and seized $6,182 in cash, documents, a television set and other matters; that the Dallas police officers on that same day turned over the cash and documents seized to the Internal Revenue Service; that the Internal Revenue Service kept his money and on May 24, 1973, made a jeopardy tax assessment against him for $35,586; and that on May 25, 1973, the District Director for the Northern District of Texas seized $3,947 from his bank account at the Greenville Avenue State Bank of Dallas.

It was further alleged in the complaint that the arrest of Carson and search of his apartment was entirely illegal, since no search warrant or arrest warrant existed, and that the assessment had no valid or legal basis since it was either made without any supporting information or was based on illegally seized evidence.

The complaint concluded with a prayer that Carson have judgment agáinst the United States for $10,129.58, and that the District Director be enjoined from attempting to levy upon the income, assets or other property of Carson; also, and as further reasons for such relief, that otherwise his income, assets and other property would be interfered with by the United States, that he would suffer irreparable injury, loss and damage and that he had no adequate remedy at law.

The only evidence in support of the allegations in the complaint was Carson’s affidavit. The affidavit merely restated the facts concerning the May 24, 1973 search and seizure by the Dallas police and that $3,947 was seized on May 25, 1973 from his bank account. Nowhere in the affidavit was it alleged that a judicial determination had been made that the disputed evidence had been illegally seized or that he was not engaged in the wagering business. In addition, there were no facts stated to support the allegation that he would suffer great and irreparable damage if his property was seized and sold at public auction.

The Government filed a motion to dismiss the complaint. This motion specifically asserted (1) that the suit sought to enjoin the assessment and collection of a tax contrary to Section 7421 of the Internal Revenue Code of 1954, and (2) that pursuant to Section 7422 the Court was without jurisdiction in a refund suit where no claim for refund had been made.

The District Court granted the Government’s motion to dismiss.

Carson’s complaint did not deny that he had been engaged in the business of accepting wagers. This omission was crucial. See Lucia v. United States, 5 Cir., 1973, 474 F.2d 565, at 575.

The complaint failed to show by appropriate factual representations that there were no facts by which the Government could establish tax liability. While Carson complained that the action of the tax collector subjected him to irreparable injury, adequate factual basis for the allegation is lacking. There had been no suit for refund of the money seized.

The judgment of dismissal is, therefore, due to be, and is, affirmed under the authority of Lucia, supra, and the cases there analyzed, as well as United States v. Rochelle, 5 Cir., 1966, 363 F.2d 225. See, also, United States v. American Friends Service Committee, - U.S. -, 95 S.Ct. 13, 42 L.Ed.2d 7 (1974).

Affirmed.


author: PER CURIAM.

text:
    Wilson COLVIN, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
    No. 74-3341
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 15, 1975.

      Wilson Colvin, pro se.
    John L. Hill, Atty. Gen., Lonny F. Zwiener, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

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

   PER CURIAM.

This habeas corpus appellant, Wilson Colvin, while represented by counsel, entered his plea of guilty to robbery by assault and was sentenced to confinement in the Texas state penitentiary for a term of not less than five years nor more than life. The sentence was imposed on September 25, 1950 in McLellan County, Texas. The record is silent as to any subsequent paroles or revocations.

In any event, Colvin was correctly sentenced under the statute in effect at the time. Thereafter, effective January 1, 1974, a new Texas Penal Code provides that robbery by assault shall be punished by confinement for not less than two nor more than twenty years.

The new Code contains the standard saving clause as to convictions and sentences entered prior to January 1, 1974.

The prisoner’s contention that the enactment of the new Code and the repeal of the old Code section entitles him to release from his sentence is palpably without merit. See, e. g., Jones v. Cupp, 9 Cir., 1971, 452 F.2d 1091; Comerford v. Commonwealth, 1 Cir., 1956, 233 F.2d 294, cert. denied 352 U.S. 899, 77 S.Ct. 141, 1 L.Ed.2d 90. See, also, Bradley v. United States, 410 U.S. 605, 93. S.Ct. 1151, 35 L.Ed.2d 528 (1973) in which the Supreme Court sustained a specific saving clause as to probation, parole and suspension of sentence for certain narcotic offenders.

Thus, the District Court correctly dismissed Colvin’s complaint for failure to state a claim upon which relief might be granted.

It has been suggested, however, that Colvin has not exhausted his state remedies and that he should be remanded to the state courts, 28 U.S.C. § 2254. We note that, although couched in different language, Colvin has sought habeas relief in the state courts for basically the same reason; that is, the repeal of the old statute and the enactment of the new one.

Colvin’s petition fails to state a violation of federal constitutional right. Thus, there is nothing presented for exhaustion in the state courts. This being so, we do not read 28 U.S.C. § 2254, to command the waste, of judicial resources which would necessarily follow a remand in this case.

The judgment of the District Court is

Affirmed.


author: WEIS, Circuit Judge.

text:
    UNITED STATES of America v. Michael PIANCONE, Appellant, et al.
    No. 74-1663.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) Nov. 21, 1974.
    Decided Dec. 30, 1974.

      Ronald J. Riccio, Robinson, Wayne & Greenberg, Newark, N. J., for appellant.
    Jonathan L. Goldstein, John J. Barry, U. S. Attys., Newark, N. J., for appellee; William T. Pizzi, Asst. U. S. Atty., on the brief.
    Before ADAMS, GIBBONS and WEIS, Circuit Judges.
   OPINION OF THE COURT

WEIS, Circuit Judge.

The day has long passed when jurors were sent to deliberate upon their verdict and were “kept without meat, drink, fire or candle,” until they reached a verdict. This case involves a related question in a more modern context, and that is whether jurors in a criminal case may be permitted to return to their homes overnight during the period of their deliberations. On the facts of this case, we hold that the trial judge did not abuse his discretion when he permitted the jury to disperse after their deliberations had begun.

Defendant was convicted of conspiracy and defrauding the United States by impeding the administration of the Immigration and Naturalization Laws. 18 U.S.C. §§ 371, 1546. He and three others had been indicted for arranging the performance of a sham marriage so that an alien might be given permanent resident status in the United States. The testimony began on February 7, 1974, and the case was submitted to the jury about noon on Tuesday, February 12, 1974. After the júrors had deliberated for about four hours, they sent a note to the trial judge advising that an urgent matter had arisen with one of their number. Counsel and the jury were then summoned to the courtroom and the trial judge excused the jury for the day. They were advised also that because of a previous commitment of the judge to be in Washington on the following day, the case would be in recess until Thursday morning. Before allowing the jury to leave the court, the trial judge instructed them:

“[Rjemember your oath not to discuss this case or any matter pertaining to the case with other persons. Be influenced only by the evidence which has been submitted . . . but remember your oath. By all means do not let any other matters influence you other than what has occurred in this courtroom in arriving at your decision.”

At 10:00 A.M. on Thursday, February 14, 1974, the jury reconvened and' resumed its deliberations. At about 11:20 A.M., just after the jury “knock[ed] with its verdict” but before its return to the courtroom, defense counsel objected to the separation of the jury. This objection was overruled. At 11:45 A.M., the jury returned its verdict of guilty.

The defendant contends that the interruption of the jury in the midst of its deliberations was inherently prejudicial. However, he does not point to any specific prejudice to him or acts of misconduct by any one of the jurors.

Although in older times it was the custom not to permit the separation of either a civil or criminal jury after its deliberation had begun and before its verdict had been rendered, the practice has steadily eroded, particularly in the federal system. In Byrne v. Matczak, 254 F.2d 525 (3d Cir. 1958), this court held that in a proper exercise of discretion, a trial judge in a civil case may permit the separation of jurors after the cause has been submitted to them. Judge Hastie, in that opinion, carefully reviewed the historical background of jury practice and concluded that ", fair new procedures, which tend to facilitate proper fact finding, are allowable, although not traditional.” 254 F.2d at 529. He also pointed out that jurors are more likely to reach impartial decisions when they are not exhausted and that the dangers of corruption by outside influences during the deliberative period are not substantially different from those existing during the trial itself.

That same line of reasoning has equal force here. Trial lawyers traditionally have been concerned about whether verdicts have been influenced by such outside pressures as reluctance to stay away from the family home overnight, weariness, transportation problems, or the fear of walking alone on city streets in the late evening on the way to public transportation. A juror’s vote should be based on reasoned judgment — not because uneasiness or discomfort has prodded him to an early end to a case. Intellectual conviction, not physical endurance, should be the basis of a juror’s decision. As the court said in Tyler v. United States, 397 F.2d 565, 568 (5th Cir. 1968), cert. denied 394 U.S. 917, 89 S.Ct. 1187, 22 L.Ed.2d 450 (1969):

“There is much to be said for the view that jurors, even as judges, are more likely to perform their duty fairly and correctly when they are not subjected to extended periods of arbitrary and pointless personal confinement.”

The problems of prejudicial publicity, possibility of harassment or approaches to jurors, the presence or absence of suitable quarters, and difficulties with local transportation, court calendars, etc., which might influence the decision to disperse the jury, emphasize factors which are particularly within the competence of the trial judge to evaluate. The trial judge’s discretion is necessarily the controlling factor, and we conclude, along with the majority of the circuits, that he should decide whether the jury should be dispersed. In the case at bar, the trial judge chose to recess the jury while other important judicial business called him from the city. This decision was amply justified by the circumstances, and in it we find no error.

Although the instruction given the jury before it dispersed was brief, it was to the point and was adequate under the circumstances since other admonitions had been given earlier in the trial.

We think it appropriate to note our approval of the procedure set forth in Byrne v. Matczak, supra. In that case, before allowing the jury to separate, the trial judge admonished its members to discuss the case with no one, and advised them that when they reconvened, each juror would be asked whether he had obeyed these instructions. The inquiry was conducted by the judge in open court before the jury resumed its deliberations the following morning. Some trial judges have followed the practice of placing the jurors under oath before beginning the questioning and have included a reference to reading anything about the case or hearing or seeing anything about it on radio or television. While the administration of an oath is not necessary, it is a formality which tends to impress upon the jurors the gravity with which the court views its admonition and is also reassuring to the litigants. We commend it to the consideration of the trial judges in this circuit.

The defendant raised four other points of alleged error, contending that the conviction should be reversed because:

1. there was no substantial evidence to support the verdict;
2. the verdict was devoid of any rational basis;
3. the trial court’s failure to charge the jury on the defendant’s theory of the case constituted reversible error; and
4. there was improper cross-examination of the defendant by the prosecutor.

These contentions merit little discussion. There is nothing in the record which indicates that the jury based its verdict on facts other than those properly before it. There is no evidence that it acted erroneously or irrationally in finding against the defendant, and the fact that guilty verdicts were not returned against some of the other defendants is no basis for disturbing the judgment. We find no error in the charge and no erroneous trial rulings which would justify the grant of a new trial.

Accordingly, we reject the defendant’s contentions, and the judgment of the district court will be affirmed.

      . III, W. Blackstone, Commentaries 375. Apparently, the practice began during the reigr. of Edward the First (1272-1306), see Crabb History of English Law 287 (1829), and was ended by the Jurors Act of 1870. It was alsc the practice in early times that, if a jury had not reached a verdict by the time the court had ended its term in a particular town, the jurors were taken by cart to the next town where the court was scheduled to sit.

      . The record does not disclose the precise nature of the juror’s difficulty. It does seem, however, that weather conditions in the area were very bad.

      . Accord, United States v. Siragusa, 450 F.2d 592 (2d Cir. 1971); Bratcher v. United States, 149 F.2d 742 (4th Cir.), cert. denied 325 U.S. 885, 65 S.Ct. 1580, 89 L.Ed. 2000.(1945); Tyler v. United States, 397 F.2d 565 (5th Cir.), cert. denied 394 U.S. 917, 89 S.Ct. 1187, 22 L.Ed.2d 450 (1968); Blackmon v. United States, 474 F.2d 1125 (6th Cir.), cert. denied 414 U.S. 912, 94 S.Ct. 252, 38 L.Ed.2d 150 (1973); Cardarella v. United States, 375 F.2d 222 (8th Cir. 1967); Sullivan v. United States, 414 F.2d 714 (9th Cir. 1969); United States v. Weiss, 431 F.2d 1402 (10th Cir. 1970). Contra, United States v. D’Antonio, 342 F.2d 667 (7th Cir. 1965). See also Devitt & Blackmar, Federal Jury Practice and Instructions § 5.09.

      . Since the jury had not been sequestered during the trial, we do not reach the problem presented by that situation.

      . Byrne v. Matczak, 154 F.Supp. 881, 883 (E.D.Pa.1957).


author: CELEBREZZE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Eulus ZIMMERMAN, Defendant-Appellant.
    No. 74-1337.
    United States Court of Appeals, Sixth Circuit.
    Dec. 13, 1974.
    George E. Lee, Detroit, Mich., for defendant-appellant.
    Ralph B. Guy, Jr., U. S. Atty., Robert D. Sharp, Asst. U. S. Atty., William C. Ibershof, Detroit, Mich., for plaintiff-appellee.
    Before CELEBREZZE and McCREE, Circuit Judges, and CECIL, Senior Circuit Judge.
   CELEBREZZE, Circuit Judge.

This is a direct appeal from Appellant’s conviction on a one-count indictment for conspiracy to interfere with government agents in the performance of their official duties in violation of 18 U.S.C. §§ 111 and 371 (1969). The factual situation concerns a shoot-out between drug traffickers and undercover narcotics agents.

On July 24, 1973, Robert J. Dunn and Louis Antonucci, special agents with the Federal Drug Enforcement Administration, purchased a quantity of what was represented to be cocaine from James Martin. Martin had received the powdery substance from Appellant.

The substance, when tested, was found not to be cocaine. The agents arranged another meeting with Martin and demanded that they get a quantity of cocaine or that their money be returned. At this second meeting Martin received two telephone calls from Appellant. In the first call Appellant inquired whether Martin was in a trap. Martin indicated that he was. Appellant then asked Martin to provide him with the telephone number of an individual named “Cecil,” whom Appellant would attempt to reach in order to help Martin. In the second conversation, Appellant told Martin that he had been unable to reach “Cecil” but that he would take care of everything.

Approximately forty-five minutes later, an unidentified male entered the bar from the rear entrance. This individual, who was wearing a large white Panama hat, proceeded to walk from the back to the front of the bar. As he passed near the booth in which Antonucei, Dunn and Martin were seated, he turned toward the booth and stared intently at them. After staring in their direction for a brief period, the man nodded and left the bar by the front entrance.

Because the agents had become suspicious of the actions of the man in the white Panama hat, Dunn proceeded to follow this man. After exiting the bar by the front entrance, Dunn observed the man in the Panama hat getting into a 1970 Cadillac Eldorado. Dunn also observed from three to four other men in the 1970 Cadillac. After seeing the men in the Cadillac, Dunn returned to the bar and informed Agent Antonucei of what had transpired.

After a few moments had elapsed, and . out of fear that the agents might attack him, Martin attempted to escape from the bar where the meeting was taking place. Agent Dunn caught Martin outside the front door. At this point, the man wearing the white hat and another man behind the Cadillac which Dunn had earlier observed began to shoot in Dunn’s direction. Dunn shouted that he was a federal agent. More shots were exchanged, and Agent Dunn was struck in the leg by one of the shots. The assailants then fled by automobile.

Martin was arrested, but subsequently became a government witness and charges against him were dismissed. Martin testified that Appellant organized the agents’ assailants, though Appellant was not present during the shootout.

The precise issue raised by this appeal is whether knowledge that the victim of an assault is a federal agent in the performance of his duties must be proven in a prosecution for violation of 18 U.S.C. § 371 for conspiring to violate 18 U.S.C. § 111. We conclude that knowledge of a federal agent’s status is a necessary element. Knowledge in this context includes the possession of facts which would lead a reasonable person to believe that the victim is likely to be a law enforcement officer, as well as direct knowledge of the victim’s statús.

This Court has not spoken to the necessity of proof of scienter in a prosecution for conspiring to assault a federal officer. We have, however, determined that proof of scienter is necessary to sustain section 371 convictions for conspiracy to transport stolen goods moving in interstate commerce, in violation of 18 U.S.C. § 2314 (1970); United States v. Garafola, 471 F.2d 291 (6th Cir. 1972), and for conspiracy to violate federal anti-gambling laws under the Interstate Travel Act, 18 U.S.C. § 1952 (1961). United States v. Barnes, 383 F.2d 287 (6th Cir. 1967), cert. denied, 389 U.S. 1040, 88 S.Ct. 780, 19 L.Ed.2d 831 (1968). Barnes involved three defendants who were convicted of conducting gambling operations and of conspiring to conduct such operations in violation of the Interstate Travel Act. This Court overturned the conspiracy convictions as to two of the defendants because they did not know that cashing an out-of-state check could make their local enterprise a federal offense. We added that this lack of knowledge would not excuse one who actually committed the overt act, nor would it excuse persons who reasonably could be expected to know of the commission of the forbidden act by their partner. In Barnes, we quoted with approval the standard enunciated in Twitchell v. United States, 313 F.2d 425, 429 (9th Cir. 1963), for sufficiency of evidence to find a co-conspirator in violation of a federal statute:

“We think that, in a case of this kind, the evidence must show in relation to Twitchell that either:
“1. he directly agreed to the illegal interstate transportation, or directly agreed to a scheme which could not be consummated without illegal interstate transportation, or directly agreed to a scheme in which it was known that the liklihood [sic] of illegal interstate transportation was great (it being understood that such agreement need not be overt, and may be inferred from circumstantial evidence; and that directness refers not to face-to-face dealings, but to the extent of his knowledge of the purpose and scope of the conspiracy); or
“2. he evidenced his indirect agreement by substantial participation in the scheme with actual knowledge of the proposed, or completed, illegal interstate transportation.” (Emphasis in original.) 383 F.2d at 292-293.

We reaffirmed this conclusion in United States v. Garafola, 471 F.2d 291 (6th Cir. 1972), where defendants had been charged with conspiracy to steal a trailer-load of liquor moving in interstate commerce. In Garafola we quoted with approval the following rule stated in United States v. Cimini, 427 F.2d 129 (6th Cir. 1970), cert. denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970):

As for this conspiracy charge it was necessary to show that the conspiracy encompassed an anti-federal intent, or that its scope was sufficiently broad as to include an anti-federal intent, i. e., intent to steal from interstate commerce, or to steal goods without regard to their source. 427 F.2d at 130.

In Garafola we stated that “conceptually the federal crime of conspiracy does require proof of an intent, actual or implied, to violate a federal law.” 471 F.2d at 291.

We perceive no reason why knowledge must be proven to establish a conspiracy to violate § 2314 or § 1952 but need not be proven to prove a conspiracy to violate § 111. In either case, an ingredient of the federal conspiracy charge is anti-federal intent.

The Second Circuit came to this conclusion in United States v. Alsondo, 486 F.2d 1339 (2d Cir. 1973), cert. granted sub nom., United States v. Feola, 416 U.S. 935, 94 S.Ct. 1932, 40 L.Ed.2d 285 (1974), which involved an assault arising out of an attempted narcotics purchase by undercover federal agents. Alsondo and three others were convicted of assaulting federal agents and conspiring to assault federal agents. The four drug traffickers did not know that they were dealing with federal agents. The Second Circuit reversed the conspiracy convictions, holding that specific knowledge of the official federal capacity of the intended assault victims must be proven to establish the alleged conspiracy although such knowledge was not. necessary to convict for the substantive offense. The Court grounded its decision on United States v. Crimmins, 123 F.2d 271 (2d Cir. 1941), which held that knowledge that stolen securities had passed through interstate commerce was a necessary element of the crime of conspiring to cause stolen securities to be transported in interstate commerce. The Alsondo court quoted with approval Judge Learned Hánd’s analysis in Crimmins:

While one may, for instance, be guilty of running past a traffic light of whose existence one is ignorant, one cannot be guilty of conspiring to run past such a light, for one cannot agree to run past a light unless one supposes that there is a light to run past. 486 F.2d at 1342-1343 quoting 123 F.2d at 273.

In the instant case, viewing the evidence most favorably to the government, it appears that Appellant arranged for a group of men to rescue Martin from drug buyers who were demanding either “good dope” or the return of their money. No evidence was introduced that Appellant was aware of the official status of the drug buyers. Even Martin, the government’s only witness against Appellant, testified that at all times pri- or to the agents’ announcing their identity he believed them to be narcotics traffickers, not undercover agents.

We conclude that the judgment should be reversed, and the action is remanded to the District Court with directions that a judgment of acquittal be entered.

      . This Court has, however, on three occasions, dealt with cases involving the substantive violation of section 111 or former section 254. Sparks v. United States, 90 F.2d 61 (6th Cir. 1937); United States v. Rybicki, 403 F.2d 599 (6th Cir. 1968); United States v. Kiraly, 445 F.2d 291 (6th Cir. 1971). It appears that in this Circuit knowledge of the officer’s status must be proven in prosecutions for the substantive violation of section 111 in those instances where actions, such as resisting arrest, derive their criminality from the fact that they are committed against a law enforcement officer.

      . See text supra fn. 1.


text:
    Richard T. HIGH, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Third-Party Plaintiff-Appellee, Stan E. HALL, Third-Party-Defendant.
    No. 74-3497.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 17, 1975.
    William J. Beiswanger, Palm Beach, Fla., for Richard T. High.
    Robert W. Rust, U. S. Atty., Lawrance B. Craig, III, Asst. U. S. Atty., Miami, Fla., Scott P. Crampton, Asst. Atty. Gen., William A. Friedlander, Robert A. Bernstein, Attys., Tax Div., U. S. Dept, of Justice, Washington, D. C., Gilbert E. Andrews, Acting Chief, Appellate Section, Dept, of Justice, Washington, D. C., for United States.
    Paul E. Gifford, Miami, Fla., Williams, Geilich & Potter, Melbourne, Fla., for Stan E. Hall.

      Before COLEMAN, DYER and RO-NEY, 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:

The Internal Revenue Service disallowed High’s claim for refund of income and social security taxes in the amount of $21,998.62. The district court granted the government’s motion for summary judgment and dismissed the complaint. This appeal ensued. We affirm.

High was chief executive officer of Mardik Construction Company, Inc. During the last three quarters of 1970 and the first quarter of 1971, the income and social security taxes withheld from the employees’ wages were not remitted to the government.

Under Section 6672 of the Internal Revenue Code any person required to collect, account for and pay over any tax, and who willfully fails to discharge that duty is liable for a penalty equal to the amount of the unpaid tax.

High admitted that he was aware of his obligation to the United States, but that he preferred laborers, materialmen and other creditors (1) because of fear of committing a crime under Florida law if he did not make payment to these persons; (2) he wished to avoid giving these parties the opportunity to file mechanics’ liens; and (3) he wanted to avoid a penalty for late payment. These reasons, he argues, established lack of willfulness and involuntariness. We disagree.

It seems clear that from High’s own evidence that the corporate receipts were sufficient to pay both the withheld taxes and the creditors. Moreover, we have the benefit of no precedent that would indicate or even intimate that the payment to the government of the withheld funds belonging to it would constitute an act with intent to defraud within the meaning of the criminal Florida Statute, F.S.A. 713.34(3). We are simply unwilling to accept such a specious argument. In any event, High’s difficulty in meeting his payrolls does not justify using the government’s trust fund money to bail himself or his corporation out of any predicament his inability to pay the laborers placed him in. High’s desire to avoid mechanics’ liens and penalties is palpably without merit as grounds for taking him out of the ambit of willfulness. We find that High willfully failed to pay over the withheld taxes. Liddon v. United States, 5 Cir. 1971, 448 F.2d 509; Newsome v. United States, 5 Cir. 1970, 431 F.2d 742; United States v. Hill, 5 Cir. 1966, 368 F.2d 617; Cash v. Campbell, 5 Cir. 1965, 346 F.2d 670; Dillard v. Patterson, 5 Cir. 1963, 326 F.2d 302.

High’s next contention that the government should have been required to proceed first against his prime contractors before seeking to recover from him is unpersuasive. The prime contractors paid Mardik sufficient funds for both net wages and withholding taxes. To be liable they must have “actual notice or knowledge . . that such employer [Mardik] does not intend to or will not be able to make timely payment or deposit of the amounts of tax required . to be deducted and withheld by such employer.” Section 3505 of the Internal Revenue Code of 1954. Thus there is no factual basis upon which to predicate liability of the prime contractors.

We have examined the other contentions of High and find them without merit.

Affirmed.


author: GEE, Circuit Judge:

text:
    ED AND FRED, INC., Plaintiff-Appellee, v. PURITAN MARINE INSURANCE UNDERWRITERS CORP. et al., Defendants, Mid Atlantic Insurance Company, Ltd., Defendant-Appellant.
    No. 73-3884.
    United States Court of Appeals, Fifth Circuit.
    Jan. 17, 1975.
    James A. Dixon, Jr., Miami, Fla., Albert D. Jordan, Elliot Paskoff, New York City, for defendant-appellant.
    Gerald M. Walsh, Fort Lauderdale, Fla., for Baldwin Ins. Agency.
    Kneeland, Splane & Kydd, Boston, Mass., for Puritan.
    Reginald M. Hayden, Jr., Miami, Fla., for plaintiff-appellee.
    Before TUTTLE, RONEY and GEE, Circuit Judges.
   GEE, Circuit Judge:

Ed and Fred brought suit to collect on a policy of marine insurance covering the barge PUTNAM, sunk in the Atlantic in 1972. The defendants were Puritan Marine Insurance Underwriters and Mid-Atlantic Insurance Company, Ltd. Puritan took a default judgment; Mid-Atlantic was found liable on the policy on the basis of actual or, in the alternative, apparent authority given the agent Puritan. Mid-Atlantic appeals, contending that Puritan lacked any authority to commit Mid-Atlantic for the full value of the hull.

Although the trial court found diversity, we do not. Plaintiff Ed and Fred is incorporated under the laws of the Netherlands Antilles, with its sole place of business there. Mid-Atlantic is incorporated in and operates its business from Bermuda. Puritan is a Massachusetts corporation with its principal place of business in Boston. With the parties thus aligned, we have an alien suing a citizen of a state and another alien.

If applied to suits brought by aliens, the rule of complete diversity would divest the district court of Section 1332 jurisdiction. No provision of the diversity statute prevents application of the rule. 28 U.S.C. § 1332(a)(2) provides federal jurisdiction when a citizen of a state is sued or sues a foreign state, or its citizens or subjects. 28 U.S.C. § 1332(a)(3) applies only in a suit between citizens of different states with aliens as additional parties. While the rule of complete diversity is not of constitutional dimensions, State Farm Fire and Cas. Co. v. Tashire, 386 U.S. 523, 530-531, 87 S.Ct. 1199, 18 L.Ed.2d 270 (1967), the established judicial construction of the general diversity statute requires complete diversity. There is no indication — legislative or judicial- — that a deviation from the rule applied in ordinary diversity cases would or ought obtain in a suit brought by an alien. Ex parte Edelstein, 30 F.2d 636, 638 (2d Cir.), cert. denied, 279 U.S. 851, 49 S.Ct. 347, 73 L.Ed. 994 (1929); Lavan Petroleum Co. v. Underwriters at Lloyds, 334 F.Supp. 1069, 1071 (S.D.N.Y.1971); Karakatsanis v. Conquestador Cia. Nav., S.A., 247 F.Supp. 423, 426 (S.D.N.Y. 1965); Tsitsinakis v. Simpson, Spence & Young, 90 F.Supp. 578 (S.D.N.Y.1950). Cf. Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 381, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959).

Nevertheless, jurisdiction lies. Ed and Fred are suing on a policy of marine insurance, a maritime contract within federal admiralty jurisdiction. Kossick v. United Fruit Co., 365 U.S. 731, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961); Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 20 L.Ed. 90 (1870). It is not always clear whether courts are to apply federal or state law in marine insurance cases, at least insofar as the substantive terms of the policy are concerned; however, this is an issue which the trial court should have determined. We are unable on this record to discern whether the trial judge applied federal, Massachusetts or Florida law. Therefore, a remand is appropriate to determine which law should be applied and to make any additional findings of fact necessary to satisfy the elements of applicable agency law. Kincaid Cotton Co., Inc. v. Kesey Bros., 504 F.2d 976 at 978 (5th Cir., 1974).

Vacated and remanded.

      . Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806).

      . Contrast Kossick v. United Fruit Co., 365 U.S. 731, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961) with Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337 (1955). See also, Irwin v. Eagle Star Ins. Co., 455 F.2d 827, 829 (5th Cir.), cert. denied, 409 U.S. 852, 93 S.Ct. 118, 34 L.Ed.2d 95 (1972).

      . Without foreclosing the possibility that federal law may be applicable, we note that our circuit has at times applied state law to determine the authority of agents and brokers in marine insurance cases, albeit without discussion. Wisconsin Barge Line, Inc. v. Coastal Marine Transp., Inc., 414 F.2d 872 (5th Cir. 1969); Fireman’s Fund Ins. Co. v. Wilburn Boat Co., 300 F.2d 631, 641 n. 4 (5th Cir.), cert. denied, 370 U.S. 925, 82 S.Ct. 1562, 8 L.Ed.2d 505 (1962). Cf. Cateora v. British Atlantic Assurance, Ltd., of Nassau, 282 F.Supp. 167, 171 (S.D.Tex. 1968).

      . There has been no suggestion in this case that the law of the Netherlands Antilles or Bermuda might apply.


author: MORGAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Edward Wray CROCKETT, Jr., Edward Wray Crockett, III, Pleasant Henry Partin, Marcus Randolph Martin, and Edwin Eugene Brown, Defendants-Appellants.
    No. 73-4011.
    United States Court of Appeals, Fifth Circuit.
    Jan. 17, 1975.
    Rehearing Denied March 4, 1975.

      Herbert Shafer, Atlanta, Ga., James K. O’Malley, Pittsburgh, Pa., for defendants-appell ants.
    William J. Schloth, U. S. Atty., 0. Hale Almand, Jr., Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.
    Before BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges.
   MORGAN, Circuit Judge:

Appellants, among others, were indicted in May, 1973, for violations of 18 U.S.C. § 1955, for operating an illegal gambling business, and of 18 U.S.C. § 371, for conspiracy to violate 18 U.S.C. § 1955. In a jury trial, appellants Edward Crockett, Jr., and Pleasant Partin were found guilty on both counts; appellants Edward Crockett, III, Marcus Martin, and Edwin Brown were found guilty of the substantive offense, but acquitted of conspiracy. The government’s theory of the case was that an illegal gambling business had been conducted at the Valdosta, Georgia, Chapter of the Fraternal Order of the Eagles, that Crockett, Jr., had been a principal, that Crockett, III, and Partin had been managers, and that Partin, Martin, and Brown had been dealers and had otherwise assisted in the business.

Appellants’ most compelling argument is that they were denied a fair trial when one of the defense counsel was called as a government witness and invoked the Fifth Amendment in response to a question. This awkward situation resulted from defense attorney H. B. Edwards, Jr.’s close association with the Valdosta chapter of the Eagles. A co-founder of the group in 1963, Edwards subsequently had served at different times as state trustee, state vice-president, state president, southeastern president, local president and local secretary. He resigned from this last office approximately two months before defendants were indicted. As a result of his experience, he knew a great deal about the operational structure of the local chapter; some. testimony on this subject was essential to the government’s case because of its need to prove who had authorized and supervised the gambling operation. He was therefore subpoenaed approximately two weeks before trial. Neither he nor any other defense counsel attempted to quash this subpoena or moved for a continuance. Neither was there any objection when he took the stand at trial.

Several of Edwards’ answers indicated that he assumed it to be common knowledge that gambling had in fact gone on at the club. For example, when he was asked, “What about the gambling?” he replied, “I didn’t have anything to do with the gambling.” Again, no defense attorney objected at this time. Nevertheless, when Edwards was asked, “When did you first see card games of poker and blackjack and dice games out at the Eagles Club in Valdosta, Georgia?” his law partner, co-counsel and son, H. B. Edwards, III, objected that, “that is getting into attorney-client privilege.” This objection was disallowed, and appellants do not challenge the correctness of the ruling on appeal. When the question was repeated. Edwards, Jr., replied, “I wish to take the Fifth Amendment. Any evidence I give might incriminate me in some regard.” After a conference at the bench, however, he decided, “I will answer the question [sic] as long as they don’t involve me in gambling because I wouldn’t want to self-incriminate myself.” He then stated that gambling had been going on at the club since its formation in 1963.

As a general rule, a party’s attorney should not be called as a witness unless his testimony is both necessary and unobtainable from other sources. United States v. Fiorillo, 376 F.2d 180, 185 (2nd Cir. 1967), Gajewski v. United States, 321 F.2d 261, 268-269, n. 9 (8th Cir. 1963), cert. denied, 375 U.S. 968, 84 S.Ct. 486, 11 L.Ed.2d 416 (1964). See United States v. Alu, 246 F.2d 29, 33 (2d Cir. 1957). We feel, however, that the facts of the instant case justified the prosecution in calling Mr. Edwards, Jr. His testimony was clearly necessary to the government’s case; in order to prove that defendants had “conduct[ed], finance[d], manage[d], supervisefd], direct[ed], or own[ed], all or part of an illegal gambling business . . . 18 U.S.C. § 1955, the prosecution needed to show who had been in positions of authority at the Eagles Club during the time when the gambling had occurred. The record does not indicate, nor do appellants claim, that Edwards’ testimony was available from any other individual; certainly his experience made him the most likely choice.

Moreover, appellants have made no showing that they were prejudiced either by Edwards’ short-lived claim of the Fifth Amendment privilege or by his subsequent testimony. His fear of self-incrimination bore on whether he had been involved in the gambling, not on whether defendants had been. His subsequent testimony did not incriminate any defendant, and appellants do not so contend. Finally, there was overwhelming and undisputed evidence that an illegal gambling operation was going on at the club. A federal agent testified as to his personal participation in several games of chance and his observation of others on nine separate occasions. Seven other witnesses also testified that they had either observed or participated in various games on at least one occasion. In short, if the court erred in letting Edwards take the stand, even absent any defense objection, it was beyond question harmless error.

Nevertheless, we feel compelled to comment on the conspicuous impropriety of Edwards Jr.’s failure to withdraw from the case when he realized that he was to be a prosecution witness. We are convinced that appellants were not prejudiced by his conduct, but we do not doubt they felt ill-served. As in all areas of legal practice, appearance can be as damaging as reality, and here the appearance of impropriety is overwhelming.

Second, appellants argue the court’s instruction to the jury on count two directed a “partial verdict of guilty.” In order to be convicted under 18 U.S.C. § 1955, a defendant must be found to have “conduct[ed], finance[d],” etc., a “gambling business” which “is a violation of the law of a State or political subdivision in which it is conducted.” Thus, in order to violate federal law, one must first be guilty of violating state or local law. Appellants contention is based on the district judge’s failure to read or paraphrase to the jury the pertinent Georgia Code sections making it illegal to conduct a gambling business in the state. Rather, he instructed them that, “I am just going to tell you, as a matter of law, that the operation of a commercial gambling establishment is in violation of Georgia law.” Although this instruction, standing alone, might have given the jury the erroneous impression that the issue of state law violation was foreclosed from their consideration, the judge corrected any possible misunderstanding immediately by adding:

[T]he prosecution . . . ha[s] to prove that it is a violation of the law of the state. Well, I have already charged you that the law of the state of Georgia prohibits commercial gambling enterprises. Now, second, I expressed no opinion about this one way or the other because you are the sole judges of the facts. I am telling you what the law is but you are the sole judges of the facts. (Emphasis supplied.)

Clearly, then, the judge did not remove from the jury its prerogative to find the facts; he merely told them that if they found the facts to be as the government contended, then defendants would, as a matter of law, have violated Georgia law. Appellants do not, as indeed they cannot, dispute this.

Since the court did not remove the fact question from the jury, appellants’ only contention must be that the jury needed to hear the precise wording of the statute rather than simply that a “commercial gambling business” was a violation of state law. We find no merit in this contention; a trial court is not required to define terms which are reasonably within the common understanding of a juror. Bohn v. United States, 260 F.2d 773, 779 (8th Cir. 1958), cert. denied, 358 U.S. 931, 79 S.Ct. 320, 3 L.Ed.2d 304 (1959) (court not required to define “a person engaged in the business of accepting wagers,” “placing bets on both sides of a transaction,” or “bookmaker”). We believe “commercial gambling,” as used in the Georgia statute, is a phrase of common understanding. The same is true for “gambling” and “keeping a gambling place.” The trial court was therefore not required to elaborate on the state law element of the offense, either by reading or paraphrasing the statutory definitions. Finally, we note that defense counsel did not request such elaboration at trial; under Rule 52(b), Federal Rules of Criminal Procedure, any error complained of at this stage must be “plain error.” Clearly, even if the court’s instructions could have been more thorough, they did not constitute plain error.

Third, appellants contend they were denied their right to effective cross examination because they were not allowed to ask two prosecution witnesses where they were living at the time of trial. They apparently wished to elicit the information that the witnesses were in the custody of the government. Generally, Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931) and Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968) require the admission of background information, such as a witness’ address, which is essential to identify the witness with his environment, “to place the witness in his proper setting and put the weight of his testimony and his credibility to a test . ” Alford, supra 282 U.S. at 692, 51 S.Ct. at 219. This court examined this rationale in United States v. Alston, 460 F.2d 48 (5th Cir. 1972), and concluded that no hard and fast rule had been established; we held the case in which a witness might be in physical danger to be an exception to the preference for disclosure. That is precisely our situation here. After the court sustained the government’s objection to the first question, a bench conference, outside the presence of the jury, revealed that the government had strong reason to believe the witness’ life was in danger, and that she was under the protection of a United States Marshal. The same was true for the second witness.

Finally, appellants, demonstrate no prejudice to have resulted from the court’s ruling. Defendants succeeded quite ably in identifying the witnesses with their environment. The first witness testified on cross examination as to her place of birth and prior residences, her marital status and “affair” with appellant Crockett, Jr., her place of resídence and employment in Valdosta, and payments made to her hy the government. The second witness testified as to her previous place of residence in Valdosta, and was cross examined on her enrollment in and departure from Valdosta State College and her plans to enroll in a nursing school in Miami. We conclude, therefore, that this case falls squarely within the Alston exception to the disclosure preference; the court did not err in sustaining the government’s objection.

We have examined the other issues raised by appellants and find them to be completely without merit. The opinion of the district court is therefore

Affirmed.

      . “A person commits commercial gambling when he intentionally does any of the following acts:
      (a) Operates or participates in the earnings of a gambling place . . Ga.Code Ann. § 26-2703(a).

      . “A person commits gambling when he: (a) makes a bet upon the partial or final result of any game or contest or upon the performance of any participant in such game or contest; or (b) makes a bet upon the result of any political nomination, appointment, or election or upon the degree of success of any nominee, appointee, or candidate; or (c) plays and bets for money or other thing of value at any game played with cards, dice or balls. A person convicted of gambling shall be punished as for a misdemeanor.” Ga.Code Ann. § 26-2702.

      . “A person who knowingly permits any real estate, building, room, tent, vehicle, boat, or other property whatsoever owned by him or under his control to be used as a gambling place, or who rents or lets any such property with a view or expectation that it be so used, commits keeping a gambling place. A person convicted of keeping a gambling place shall be punished as for a misdemeanor of a high and aggravated nature.” Ga.Code Ann. § 26-2704.


author: GODBOLD, Circuit Judge.

text:
    Rosa Lee Vickers POWELL, Plaintiff-Appellant, v. Laurent V. RADKINS, Jr., M. D., et al., Defendants-Appellees.
    No. 74-1042.
    United States Court of Appeals, Fifth Circuit.
    Jan. 20, 1975.
    Rehearing and Rehearing En Banc Denied Feb. 21, 1975.

      Michael R. N. McDonnell, M. W. Schryver, Naples, Fla., for plaintiff-appellant.
    Robert L. Shevin, Atty. Gen., Baya Harrison, III, Richard C. Booth, Asst. Attys. Gen., Tampa, Fla., for Wm. B. Barrow, M.D.
    James A. Franklin, Jr., Fort Meyers, Fla., for Radkins, Blank, Lee Mem. Hosp.
    G. Hunter Gibbons, Sarasota, Fla., for Scott, U. S. Fid.
    James G. Mahorner, Gen. Counsel, State of Fla., Dept, of Health & Rehabilitation Services, Tallahassee, Fla., for Robt. L. Eaton.
    Before THORNBERRY, GOLDBERG and GODBOLD, Circuit Judges.
   GODBOLD, Circuit Judge.

This case was brought under 42 U.S.C. § 1983 and Florida state law by a female who was sterilized while a ward of the Florida State Department of Health & Rehabilitation Service, Division of Mental Retardation. The jury found all issues in favor of defendants.

Plaintiff, when age 17 and unmarried, was on furlough from a facility of the Division of Mental Retardation. She became pregnant and returned to the facility for diagnosis and treatment. At the time of delivery of the baby, and at the request of an official or officials of the Division, she was sterilized by irreversible procedures. The operation left a three-inch scar on her abdomen below the navel.

There are numerous troubling issues in this case, but disposition is controlled by the jury’s answer to a special interrogatory to the effect that plaintiff knew or in the exercise of due diligence should have known in October 1967 that a sterilization operation had been performed upon her. This date was more than four years preceding the filing of the action, which was longer than the limitation periods under Florida law — four years for several counts, three for another— which is the governing law in this instance. Nevels v. Wilson, 423 F.2d 691 (CA5, 1970); Campbell v. Weatherford, 427 F.2d 131 (CA5, 1970); Knowles v. Carson, 419 F.2d 369 (CA5, 1969); Fla. Stat.Ann. § 95.11.

The statutory period commenced when plaintiff was “first put upon notice or had reason to believe that her right of action had accrued.” City of Miami v. Brooks, 70 So.2d 306, 309 (Fla.1954). There is no contention that plaintiff lacked the capacity to understand the nature of the surgery. If such a contention were made, the issue would be for the jury. The jury was properly instructed on notice and knowledge in terms of a reasonably careful person of the same age, mental capacity, intelligence, training and experience.

Appellant claims that the court erred in refusing this requested instruction:

You are further instructed that if the preponderance of the evidence shows that the Defendants or others kept information from the Plaintiff which would have put her on notice of her injury, then the statute [of limitations] is not effective until such information is disclosed to the Plaintiff.

The Florida cases indicate that the statute is tolled in cases of fraudulent concealment by the defendant until the plaintiff knows or has reason to know of the existence of the cause of action. Proctor v. Schomberg, 63 So.2d 68 (Fla. 1953); Hart v. Hart, 234 So.2d 393 (Fla.Dist.Ct.App.1970); Metcalf v. Johnson, 113 So.2d 864 (Fla.Dist.Ct.App.1959); 51 Am.Jr.2d § 147. Since the jury found that plaintiff had reason to know of the cause of action, any attempt at fraudulent concealment by a defendant would not toll the statute. We conclude that plaintiff’s requested instruction was properly refused.

The trial court did not err in denying plaintiff’s motion for summary judgment. There were a variety of contested material issues of fact. Assuming arguendo that plaintiff is correct in her contention that with respect to some issues there were no material disputed issues of fact, it was not mandatory that the court grant partial summary judgment on all such issues. This is a complex case, with numerous defendants and intricately intertwined theories of liability. Some defendants were direct participants in plaintiff’s sterilization and the decision that it be performed. Others were only tangentially connected. A court, in its discretion in shaping the case for trial, may deny summary judgment as to portions of the case that are ripe therefor, for the purpose of achieving a more orderly or expeditious handling of the entire litigation. 6 J. Moore, Federal Practice ¶ 56.15[6], at 2427. Rule 56(d), covering the situation in which the case cannot be fully adjudicated on the motion is qualified by the language “if practicable.”

We need not consider the jury’s answers in favor of defendants on numerous other issues because the issue of delay in filing suit brings the case to an end.

Affirmed.

      . Defendants were the medical director of the Center in which plaintiff resided, the doctor who performed the sterilization operation, the doctor who assisted in the operation and concurred in the decision to sterilize plaintiff, another doctor who concurred in the decision to sterilize plaintiff, the hospital in which plaintiff was treated, and an insurance company.

      . The charge was:
      “With regard to Plaintiffs knowledge, you are instructed that the means of knowledge are ordinarily the equivalent in law to knowledge. So if it appears from a preponderance of the evidence in the case that the Plaintiff had information which would lead a reasonably careful person of the same age, mental capacity, intelligence, training, and experience to make inquiry through which he would surely learn certain facts, then that person may be found to have had actual knowledge of those facts the same as if he had made such inquiry and had actually learned such facts. That is to say, the law will charge a person with notice and knowledge of whatever he would have learned upon making such inquiry as it would have been reasonable to expect that person to make under the circumstances.”

      . We find no federal policy that would support the adoption of a different federal rule concerning tolling in the circumstances of the present case. Therefore, the Florida tolling principle is applicable. See Mizell v. North Broward Hospital District, 427 F.2d 468 (CA5, 1970). Compare Blair v. Page Aircraft Maintenance, Inc., 467 F.2d 815 (CA5, 1972).

      . Cases cited by appellant do not support her position. Buck v. Mouradian, 100 So.2d 70 (Fla.Dist.Ct.App.1958), stated that the statute would be tolled when the defendant prevents the plaintiff from discovering the injury inflicted by defendant. Where the plaintiff has sufficient facts to give her reason to discover the injury, as in the present case, the “prevention” rationale is no longer applicable. Thus Buck would not support tolling in this ease. City of Miami v. Brooks, 70 So.2d 306 (Fla. 1954), simply stated the general rule that the statute begins to run when the plaintiff has been put on notice of his right to a cause of action. This in no way supports the tolling principle sought by plaintiff.

      . We find it unnecessary to determine whether the requested instruction was properly refused because of the inclusion of the words “or others.” Fraud perpetrated by third parties does not toll the statute. See Proctor v. Schomberg, 63 So.2d 68 (Fla. 1953); 51 Am. Jur.2d § 150. See also Cato v. South Atlantic & Gulf Coast District of Int’l Longshoremen’s Ass’n, 364 F.Supp. 489 (S.D.Tex.), aff’d 485 F.2d 583 (CA5, 1973).


author: AINSWORTH, Circuit Judge:

text:
    UNITED BROADCASTING COMPANY, INC., U. B. C. Sales, Inc., and their officers and Richard Eaton, Plaintiffs-Appellants, v. Jay J. ARMES, Defendant-Appellee.
    No. 73-3824.
    United States Court of Appeals, Fifth Circuit.
    Jan. 20, 1975.
    Rehearing Denied Feb. 10, 1975.

      J. F. Hulse, Stephen B. Tatem, Jr., El Paso, Tex., for plaintiffs-appellants.
    Marshall I. Yaker, H. Tati Santiesteban, El Paso, Tex., for defendant-appellee.
    Before GEWIN, GOLDBERG and AINSWORTH, Circuit Judges.
   AINSWORTH, Circuit Judge:

In this Texas diversity case we must interpret a series of oral and written contracts for personal services undertaken and performed in the context of a most extraordinary set of facts. Plaintiff Richard Eaton and two corporations of which he is president appeal from a judgment for $80,000, plus court costs, entered on a jury verdict in favor of defendant and counterclaimant Jay Ar-mes. We affirm..

I. Factual Background to the Dispute

A. The Relationship Between Eaton and Estella Vega Padilla

Richard Eaton is a Washington businessman who is president and sole stockholder of United Broadcasting Company and its wholly owned subsidiary, U.B.C. Sales, Inc. In 1964 Eaton met Francisco Nunez, who owned radio station XEWG in Juarez, Mexico. Eaton wanted to buy the station but learned that under Mexican law, American citizens cannot own property or government broadcast licenses in Mexico. Eaton was accompanied by Estella Vega Padilla, his close friend at that time and later his housekeeper. She is a Mexican citizen and suggested that Eaton register the title to the station and broadcast license in her name. Between the time of this purchase and 1970, Eaton loaned Estella Vega Padilla approximately $450,000 to operate XEWG and several other Mexican stations. This loan agreement, according to Eaton’s statement in his deposition, was not reduced to writing until December of 1971.

At about the same time that radio station XEWG was purchased by Eaton and put in Estella Vega Padilla’s name, Eaton was arranging the adoption of a child by his son and daughter-in-law. He urged the couple to adopt a child, in the hope that it would revive their failing marriage. On the advice of a Miami doctor, he arranged for the adoption of a child about to be born out of wedlock to a young woman who felt she could not keep the child. At the last minute, Eaton’s son and daughter-in-law decided not to go through with the arrangement. The baby had already been delivered, and so Eaton assured his daughter-in-law that he would care for the child himself. • He persuaded Estella Vega Padilla to assume day-to-day responsibility for the child, which she did.

In March 1970, because of a dispute over the profits from the radio station, Estella Vega Padilla left Eaton and headed for Mexico with the child.

B. The Contracts Between Eaton and Jay Armes

Eaton then sought the services of defendant Armes, a private investigator in El Paso, Texas. On April 29, 1970, he and Armes concluded an agreement pursuant to which Armes was to recover the child for a fee of $1,500. Eaton had information at this time that the child was in Juarez, Mexico. Armes learned, however, that the child was in Veracruz. When Armes told Eaton of his discovery, the two entered into a second agreement, this one oral, pursuant to which Armes was to recover the child in Veracruz. Further, he was to recover for Eaton all the properties Eaton had entrusted to Estella Vega Padilla: radio station XEWG in Juarez, Mexico, radio station XESM in Mexico City, and a house in Chevy Chase, Maryland. Armes testified that Eaton told him that XEWG had been sold for $400,000, out of which Armes would be paid $80,000 as soon as the necessary papers were procured and executed.

For nearly a year thereafter, Armes worked on his assignment from Eaton. The child was returned by Armes to Eaton in October 1970. By March 1971, Armes had completed most of the arrangements for the return of Eaton’s property. As a result of Armes’ efforts, Estella Vega Padilla was extradited from Mexico City to Juarez. Armes initiated proceedings against her for criminal fraud. Faced with the serious threat of prosecution, Estella Vega Padilla sought to make amends. She executed a power of attorney authorizing a lawyer in Juarez, Mr. Vargas, to transfer the radio stations to another Mexican party. Armes also recovered from Estella Vega Padilla the deed to the Maryland house that Eaton had entrusted to her.

On March 6, 1971, Eaton and Armes concluded a third agreement, this one written, which recited that when Armes turned over the deed to the Maryland property and the papers necessary for the transfer of the radio stations, XEWG would be sold within thirty days and 20 per cent of the proceeds would be given to Armes in payment for his services. After delivering the documents sought by Eaton, Armes demanded his fee. A dispute developed over the agreements, and Armes filed suit in Juarez, intending to levy on the assets of the radio station (XEWG). Eaton filed suit in the United States District Court, Western District of Texas, and obtained an injunction against Armes’ suit in Juarez. Armes counterclaimed for his fee. The jury returned a verdict in favor of Armes, and the court entered a judgment .of $80,000 plus court costs, from which Eaton has appealed.

II. Plaintiff Eaton’s Contentions on Appeal

A. The Meaning of the Agreements

The jury found, in answer to a special interrogatory, that Eaton agreed to pay Armes $80,000 plus expenses for his services. Eaton contends the jury’s verdict is contrary to the express terms of the written contract of March 6, 1971, which, he asserts, is a reduction to writing of all the agreements between the parties. He argues, therefore, that any prior oral agreements are barred by the parole evidence rule and doctrine of merger. We have summarized the facts in some detail, but it is clear that there is a conflict in substantial evidence sufficient to create a jury question, see Boeing Company v. Shipman, 5 Cir., 1969, 411 F.2d 365, 374-375 (en banc), and that the jury resolved that conflict adversely to defendants.

It is apparent from all the testimony that the earlier oral agreements concerned several matters not mentioned in the written contract of March 6, 1971, most conspicuously the recovery of the child, which proved to be far more difficult than either party anticipated when they negotiated the original contract on April 29, 1970. Armes also performed services for Eaton subsequent to and not covered by the written agreement of March 6, 1971. For example, Armes testified that after he had completed all his obligations under the written contract, Eaton sent him back to Juarez for a duplicate title to the property in Maryland, one deed for which Armes had already delivered. Whatever the written agreement may provide concerning Ar-mes’ fee for the services listed therein, Eaton’s promise to pay Armes $80,000 for the entire job survives from the prior oral agreement.

Eaton also complains of the jury’s answer to a special interrogatory that station XEWG was in fact sold for $400,-.000. In light of our conclusion that the jury was correct in finding that Eaton promised Armes $80,000 for his services, the amount for which the radio station was sold does not affect Armes’ rights under the contract. Nor is Armes’ recovery dependent on whether the station was actually sold. Although the sale of the radio station was mentioned in the oral agreement, Eaton’s oral promise to pay $80,000 for Armes’ services was not tied to any specific proceeds. The promise given by Eaton in the March 6, 1971 written agreement merely identified one source of payment on which Armes could depend for compensation for his work. The sale of the station was part of Eaton’s obligations under that agreement, not a condition precedent to those obligations. If Eaton failed to sell the station he breached the agreement just as surely as if he had sold the station but refused to give Armes any of the proceeds.

Moreover, there is evidence in the record that a sale did take place. Armes testified that Eaton told him the station had been sold to a Mexican company called Escarga, represented by Jesus Hernandez Gutierrez. The record includes a sale contract reciting that Gutierrez is to pay $400,000 to Richard Eaton for radio station XEWG, and that U.B.C. Sales, Inc. is to hold a promissory note in that amount until full payment is received. The record also contains a statement executed by Gutierrez, as owner of XEWG, authorizing the payment of all monies due the radio station to U.B.C. Sales, Inc. Despite the confusion surrounding the disposition of the radio station, there was ample evidence to support the jury’s finding that the station was sold and that Eaton received the proceeds.

B. Errors Alleged to Have Been Committed at Trial

Eaton also assigns as error the following actions by the trial court: (1) refusal to exclude expert testimony and other evidence concerning the value of the radio station; (2) instructions to the jury that adverse inferences could be drawn from the failure of Eaton and Estella Vega Padilla to appear and testify; (3) refusal to permit the reading of Eaton’s pretrial deposition on the question whether he was too ill to appear; (4) instructions to the jury that the widespread occurrence of bribery and other misconduct in Mexico could be taken into account in considering the effect of Ar-mes’ misconduct on his credibility as a witness; (5) entry of an injunction by the district court against Eaton to restrain him from proceeding in a suit against Armes by Eaton for invasion of privacy in Washington, D. C. All of these contentions are without merit.

1. The expert testimony. In light of our conclusion that Armes’ compensation was not dependent on the amount of proceeds from the sale of the radio station, whatever error may have been committed in allowing testimony on the value of the station was harmless.

2. Failure of Eaton and Padilla to appear. The trial judge instructed the jury that, if they found Estella Vega Padilla had knowledge of the facts in the case and was reasonably available to Eaton and less available to Armes, they could infer that her testimony would have been unfavorable to Eaton. This standard instruction was proper. C. McCormick, Law of Evidence § 249 at 534 (1954). The trial court obliquely suggested to the jury that the same inference could be drawn from Eaton’s failure to appear, noting that the court had concluded there was no medical reason for Eaton’s refusal to travel to El Paso. The instruction itself is a standard charge on credibility. See C. McCormick, supra, § 249; Wigmore on Evidence § 289 (1940). The trial judge’s finding that Eaton was in fact able to appear is amply supported in the record.

3. The reading of Eaton’s deposition. The trial court initially acceded to Eaton’s request, supported only by a physician’s unsworn statement, that he not be required to attend the proceedings in El Paso for health reasons. See Fed.R.Civ.P. 32(a)(3)(C). During the taking of the deposition, however, Ar-mes’ counsel elicited from Eaton the admission that he travelled frequently by airplane on business matters. Moreover, Eaton used the occasion of Armes’ attendance at the deposition to serve him with the complaint in Eaton’s Washington lawsuit for invasion of privacy. These developments cast serious doubts on the validity of Eaton’s earlier claim of physical incapacity. Thus when Eaton’s counsel attempted to blunt the effect of his client’s failure to appear by reading to the jury the portion of Eaton’s deposition concerning his health, the trial court properly limited the testimony. Considering the facts elicited in the deposition about Eaton’s physical capacity and Eaton’s numerous business trips between New York and Washington, the court was fully justified in its ruling and we perceive no reversible error.

4. The trial court’s comments concerning bribery. During plaintiff counsel’s closing argument and in the instructions to the jury, the trial judge expressed his belief that Armes’ use of bribery and other questionable practices in connection with the return of Eaton’s property should be viewed in light of the prevalence of such practices in Mexico. The trial court made it clear that the jury was not to take his comments as approval of Armes’ actions. These comments were part of the trial judge’s instructions to the jury concerning the importance of assessing the credibility of witnesses. Taken in context,' the trial court’s observations were nothing more than an attempt to inform the jury that they should consider all the circumstances in assessing the impact of an illegal act on Armes’ credibility. We find no error in his comments. See Byrd v. Blue Ridge Rural Electric Cooperative, 356 U.S. 525, 540, 78 S.Ct. 893, 902, 2 L.Ed.2d 953 (1958).

5. The injunction against Eaton’s suit in Washington, D. C. The trial court enjoined Eaton from further proceeding in his suit against Armes in Washington for invasion of privacy and other torts. His judgment was obviously correct. Fed.R.Civ.P. 13(a) in pertinent part states:

A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim

Eaton’s Washington suit alleges that, in connection with the collection of his fees, Armes made a number of threats to harm Eaton and the child, including a threat to kidnap the child and take her back to Mexico. Thus this claim clearly arises out of the same transaction as Ar-mes’ claim in the present suit and should have been pleaded as a counterclaim in the Texas federal court.

Affirmed.

      . Under the circumstances, the district judge was fully justified, and did not abuse his discretion, in denying Eaton’s motion for a new trial. See, e. g., United States v. Bucon Construction Company, 5 Cir., 1970, 430 F.2d 420, 423; Powell v. McIntire, 5 Cir., 1969, 415 F.2d 333.

      . Eaton’s counsel conceded at oral argument in this Court that he was not relying on alleged illegality of the contracts between Eaton and Armes. Inquiry into possibly illegal acts connected with these contracts is foreclosed by state law, which we are bound to follow in this diversity case. Under Texas law, if a contract is not illegal on its face, its illegality must be raised, as an affirmative defense. Kahn v. Harris, Upham & Co., Tex.Civ.App., 1952, 247 S.W.2d 139, 142, aff’d, 151 Tex. 655, 253 S.W.2d 647; City of Galveston v. O’Mara, Tex.Civ.App., 1941, 146 S.W.2d 416, 420, aff’d sub nom., City of Galveston v. Heffernan, 138 Tex. 16, 155 S.W.2d 912. Plainly this contract called for no illegal acts, either implicitly or by its terms, and illegality was not raised as an affirmative defense in the trial court.

      . The trial court’s charge, in relevant part, was as follows:
      I thought that Mr. Gonzalez Vargas said that this is the way, referring to the mordida [a Mexican idiom for bribery], that this is the way business is done over there.
      Well, of course, certainly [sic] isn’t right over here, and we know that, and I don’t think anybody would personally approve of matters being made that way. But listen to all the testimony.