author: MANSFIELD, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Ralph SANTANA et al., Appellants.
    Nos. 1114, 1115 and 1163, Docket Nos. 74-1080, 74-1567 and 74-1460.
    United States Court of Appeals, Second Circuit.
    Argued June 21, 1974.
    Decided Aug. 19, 1974.
    Certiorari Denied Dec. 9, 1974.
    See 95 S.Ct. 632.

      Albert J. Krieger, New York City (Alan F. Scribner, New York City, of counsel), for appellant Santana.
    Irving Anolik, New York City, for appellant Quinones.
    Joel A. Brenner, Mineóla, N. Y. (Dill-er & Schmukler, New York City, of counsel), for appellant Rivera.
    Jeffrey Harris, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. S. D. N. Y., S. Andrew Schaffer, Asst. U. S. Atty., New York City, of counsel), for appellee.
    Before SMITH and MANSFIELD, Circuit Judges, and BARTELS, District Judge.

       Of the United States District Court for the Eastern District of New York, sitting by designation.

   MANSFIELD, Circuit Judge:

In January 1974, following a jury trial before Judge Dudley B. Bonsai in the Southern District of New York, appellants Ralph Santana, Herman Rivera and Horacio Quinones, who were named with numerous others (10 co-defendants and 10 co-conspirators) in an indictment charging them with participation in a far-flung international “French connection” type narcotics conspiracy in violation of 21 U.S.C. §§ 173 and 174, were convicted. Upon this appeal each asserts numerous claims of error. Their convictions are affirmed.

The proof, viewed in the light, most favorable to the Government, reveals the existence for some Si/i years of a continuing conspiracy to purchase large quantities of heroin from suppliers in France, which were smuggled into the United States for sale and distribution here. The core operators were Edouard Rimbaud, a French purveyor of narcotics, and Antonio Flores, an American buyer. Theirs was the continuing relationship from which the acts of the other conspirators derived their meaning and purpose. The Rimbaud-Flores conspiracy began in 1968 when it was formed through the offices of Joseph Lucarotti, a Frenchman then serving a term in the Atlanta Federal Penitentiary (“Atlanta” herein). Lucarotti wrote from the penitentiary to Rimbaud, then in France, informing him that Lucarotti had a buyer for any heroin that Rimbaud might be able to supply. Rimbaud replied that he had a heroin source but no money to make the initial purchase in France. Lucarotti informed Rimbaud that he had an associate whose wife would provide him with $16,000 for this purchase.

The scene then shifted to Montreal. In 1968 Rimbaud arrived there from France and promptly sent a telegram to a New York address that Lucarotti had provided as that of his ássociate’s wife. Several days later Lillian Santana, wife of appellant Ralph Santana, who was a prison-mate of Lucarotti in Atlanta, appeared at the Montreal hotel where Rimbaud was staying. After they discussed the sale she departed and later returned to the hotel with the $16,000 for the purchase of heroin. Equipped with these funds, Rimbaud arranged for the shipment of five kilograms of heroin from France to Montreal. The plan went awry, however, when one of Rimbaud’s men, upon arrival at the Montreal airport, was forced to discard the heroin in order to avoid detection. When told of the mishap, Lillian Santana remarked that it would bother her husband. A few days later she arranged a direct meeting in Montreal between Rimbaud and Flores, the purchaser, at which Rimbaud advised Flores to come to France himself to pick up the next shipment of heroin.

Rimbaud returned to France and located more heroin for Flores. Flores then arrived in Paris accompanied by appellant Herman Rivera and one John “Buggy” Brown. Rimbaud, Flores and his companions next travelled to Avignon, France, where the delivery of two kilograms of heroin was made. At this point Flores returned to the United States, leaving to Rivera the task of smuggling the heroin into this country, which he completed successfully with the help of Brown. The heroin was delivered to Flores in New York.

For a period the Rimbaud-Flores arrangement established through Mrs. Santana worked smoothly. In January 1969, for instance, Rimbaud advised Flores in New York that he could ship 20 kilos of heroin from France to Montreal, which Flores agreed to buy at a price of $10,000 per kilo. The heroin was then smuggled into Canada through a courier, Edmund Taillet, who secreted it in musical instruments, and was delivered to Flores in two installments, payment being made by Flores to Rimbaud in Montreal.

Two months later Rimbaud was arrested in New York for his part in an unrelated narcotics transaction and held at the West Street Federal Detention Headquarters (“West Street” herein) in New York. Coincidentally, Flores found himself detained at West Street at the same time. During their sojourn there Flores attempted unsuccessfully to acquire from Rimbaud the name of the latter’s French supplier. When Flores was released, he promised Rimbaud that he would send him an attorney. A few days later appellant Horacio Quinones appeared in court and announced that he was representing Rimbaud. During his subsequent interviews with Rimbaud at West Street, Quinones pressed Rimbaud for the name of his French source. Rimbaud consistently refused to divulge his source because he still entertained hopes of raising his bail (fixed at $75,000) and returning to his own drug operations. As part of his plan to raise his bail money, Rimbaud enlisted the aid of Quinones in smuggling letters in and out of West Street. The letters directed one of Rimbaud’s associates in France to smuggle two kilograms of heroin into the United States, secreted inside ski poles. The bail-raising plan collapsed, however, when the police intercepted the ski poles.

With his hopes of bail thus dashed, Rimbaud agreed to reveal the name of his French heroin source to Quinones. Quinones also prevailed upon Rimbaud to raise $7,500 in payment for the “legal” services being rendered by Quin-nones. (Flores had already paid Qui-nones $1,000 for taking the Rimbaud case.) Rimbaud told Quinones that an associate in France would pay him the $7,500. Quinones and Flores then traveled to France, Quinones to collect his $7,500, Flores to make his French connection. Thenceforth Flores conducted an extensive heroin smuggling business directly with Rimbaud’s suppliers in France, who from 1969 to 1971 made a series of shipments through their courier, Edmund Taillet, to Flores and his successor, Anthony Segura, in New York.

Meanwhile Rimbaud languished in jail and in 1971 was sent to Atlanta to serve his sentence. There he met Ralph Santana, who expressed strong displeasure at Flores’ handling of the drug purchases, stating that Flores had failed to pay his wife the $1,000 per kilo which apparently had been agreed upon as a commission for connecting Flores with the French heroin suppliers.

As this synopsis of the evidence suggests, each appellant was charged with a distinct part in furthering the overall conspiracy. Santana’s role lay in connecting Flores with Rimbaud and the French suppliers. Rivera participated by smuggling a shipment of heroin that Flores had purchased from Rimbaud. Quinones passed information from Rimbaud to Flores and from Rimbaud to his associate in France. The jury concluded that each of the appellants had thus played a role in the conspiracy.

DISCUSSION

Santana’s Claims

Santana’s principal claim is that there was insufficient evidence to establish his participation in the conspiracy, independent of hearsay evidence admitted pursuant to the co-conspirator exception. See Brown v. United States, 150 U.S. 93, 14 S.Ct. 37, 37 L.Ed. 1010 (1893). The settled rule in this Circuit, see United States v. Geaney, 417 F.2d 1116, 1120 (1969), cert. denied sub nom. Lynch v. United States, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970), is that the jury will be permitted to consider such hearsay only if the trial judge determines that the prosecution has proved the defendant’s participation in the conspiracy by a fair preponderance of the evidence independent of co-conspirators’ declarations. In this case the judge concluded that the prosecution had carried this burden. We agree.

The process of compartmentalizing hearsay and nonhearsay proof of conspiracy for the purpose of separately weighing the latter can sometimes be a difficult task, even for the experienced trial judge, principally because of the risk that incriminating hearsay may unconsciously influence the court’s evaluation of relatively weak non-hearsay. In the present case the hearsay evidence against Santana was indeed strong. Following Lucarotti’s letter to Rimbaud to the effect that his associate’s wife would deliver the $16,000 needed to commence the drug smuggling operation and the loss of the first shipment jettisoned in Montreal, Mrs. Santana remarked to Rimbaud that her husband would be disturbed by this loss. However, the non-hearsay evidence against Santana was scarcely less damaging. First of all, there was persuasive circumstantial proof of Santana’s roie. At the time when Lucarotti sent the message to Rimbaud that he (Lucarotti) had an associate in Atlanta whose wife would give Rimbaud $16,000 for the heroin, both Lucarotti and Santana were imprisoned at Atlanta. The appearance of Mrs. Santana shortly thereafter in Montreal with $16,000 for Rimbaud’s use provides the basis for a strong inference that the arrangement had been made through her husband, who was acting as a link in the chain connecting Lucarotti and Rimbaud. Coupled with this circumstantial evidence is the direct ■ admission later made by Santana to Rimbaud, after the latter became a prisoner in Atlanta, complaining that after he and his wife had connected Rimbaud and Flores the latter had failed any longer to make the agreed upon commission payments of $1,000 per kilo to Santana’s wife. This admission, which falls outside the proscription of the hearsay rule, would probably be sufficient in itself to establish Santana’s participation and that he had a “stake” in the conspiracy. See United States v. Ragland, 375 F.2d 471, 477 (2d Cir. 1967), cert. denied, 390 U. S. 925, 88 S.Ct. 860, 19 L.Ed.2d 987 (1968). When the admission is considered against the background of the circumstantial evidence, including Mrs. Santana’s activities, the non-hearsay evidence was clearly sufficient to establish Santana’s participation in the conspiracy, independent of any hearsay evidence from co-conspirators. See United States v. Ragland, supra; see also United States v. Marrapese, 486 F.2d 918, 921 (2d Cir. 1973), cert. denied, 415 U. S. 994, 94 S.Ct. 1597, 39 L.Ed.2d 891 (1974), and United States v. D’Amato, 493 F.2d 359, 363-364 (2d Cir. 1974).

Santana further contends that on the basis of his very limited involvement he has improperly been drawn within the dragnet of a wider conspiracy to which he was not a party. He argues that the evidence establishes at best that he and his wife were involved in the early stages, but that by January 1969 they had been eliminated from the operation as Flores began to deal directly with Rimbaud. We disagree. The evidence warranted a finding that Santana entered the conspiracy with full appreciation that he and Lucarotti were to connect Rimbaud and Flores for the purpose of promoting a continuing partnership in the importation and sale of illicit drugs. See United States v. Bynum, 485. F.2d 490, 495-497 (2d Cir. 1973), vacated and remanded on other grounds 417 U.S. 903, 94 S.Ct. 2598, 41 L.Ed.2d 209 (1974). The partnership in the importation of such large quantities of heroin would obviously require the coordination of others in a chain of distribution and sale over an indefinite period. This was not a “one-shot” venture. Indeed, Rimbaud testified that Santana’s later lament to Rimbaud at Atlanta went to the very fact that after “they” (Santana and his wife) had connected “us” (Rimbaud and Flores), Flores had failed to pay the agreed commission ($1,000 per kilo) to Lillian Santana on each of his subsequent purchases from Rimbaud. Flores’ nonpayment of the commissions did not alter Santana’s role in 'the conspiracy. Santana took no steps to withdraw. On the contrary, he still considered himself very much part of the ongoing operation, as his umbrage in Atlanta indicates. He had played his important role by connecting Rimbaud and Flores and he understood that during the period of the operation he and his wife would be paid their stake in the form of continuing commissions, just as would an agent who sold a life insurance policy. The evidence was more than sufficient to establish Santana’s seminal but continuing role in the broad, ongoing conspiracy. See United States v. Arroyo, 494 F.2d 1316, 1319 (2d Cir. 1974); United States v. Agueci, 310 F.2d 817, 826-827 (2d Cir. 1962), cert. denied, Guippone v. United States, 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1963).

Rivera’s Claims

Appellant Rivera pursues a similar vein in his assignment of errors. He argues first that the evidence of his involvement in the importation of two kilograms of heroin was insufficent to constitute him a member in the broader conspiracy for which he was charged. While we appreciate the dangers that may attend the charge of a multiple conspiracy, none of them is encountered here. Even the most rudimentary models reveal that a narcotics conspiracy of the chain type depends for its success on the employment of a number of persons, each of whom, while appreciating the scope of the overall business venture, performs a separate assigned task and does not necessarily know or work directly with all of the other participants. See United States v. Bynum, supra, 485 F.2d at 496-497; United States v. Arroyo, supra; United States v. Agueci, supra. One need not participate in each act of a conspiracy in order to be a part of it. A single act may suffice, if that act is one from which knowledge of the general conspiracy can be inferred. See United States v. Ramirez, 482 F.2d 807, 816 (2d Cir.)., cert. denied, sub nom. Gomez v. United States, 414 U.S. 1070, 94 S.Ct. 581, 38 L.Ed.2d 475 (1973); United States v. DeNoia, 451 F.2d 979 (2d Cir. 1971); United States v. Aviles, 274 F.2d 179 (2d Cir.), cert. denied, sub nom. Genovese v. United States, 362 U.S. 974, 80 S.Ct. 1059, 4 L.Ed.2d 1010 (1960).

Rivera’s participation was hardly the neutral or ministerial act of some hapless minion. Rather he had consciously involved himself in an extended episode in importing drugs. See United States v. Ramirez, supra. He traveled to France, attended several meetings with Rimbaud, the seller, and Flores, the buyer, and then at Flores’ instruction took delivery of two kilograms of heroin, which he smuggled into the United States and delivered to Flores’ representatives here. His actions constituted the very essence of the conspiracy charged, which was to buy, sell, and transport narcotic drugs. From the depth of his involvement with Flores and Rimbaud and from his actions themselves, the jury might infer Rivera’s knowledge that he was participating in a broad ongoing conspiracy. See United States v. Ramirez, supra; United States v. DeNoia, supra; United States v. Aviles, supra.

Rivera’s second point, that the Government’s evidence proved multiple conspiracies rather than the single conspiracy charged in the indictment, must fail for the same reasons. The evidence supported the conclusion that he was consciously acting as part of a single large conspiracy. See, e. g., United States v. Agueci, 310 F.2d 817, 826-827 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1963); United States v. Bynum, supra, 485 F.2d at 495-497; United States v. Arroyo, supra, 494 F.2d at 1319. The district court committed no error when it declined to give a multiple conspiracy instruction to the jury in the terms requested by the defendants. United States v. Arroyo, supra. Indeed, even if the evidence had established multiple conspiracies, Rivera could claim no prejudice, for the variance could not have affected his substantial rights. United States v. Calabro, 467 F.2d 973, 983 (2d Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1358, 35 L.Ed.2d 587 (1973); United States v. Agueci, 310 F.2d 817, 827 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1963).

Finally, Rivera challenges the court’s failure to instruct the jury more specifically on the interest of a co-conspirator or accomplice who testifies for the prosecütion. See United States v. Padgent, 432 F.2d 701 (2d Cir. 1970). The principal witnesses against Rivera were Rimbaud and Terry Paul Jones, both of whom had been implicated in the conspiracy and both of whom stood in the shadow of future prosecution at the will of the government. The district court did instruct the jury that the testimony of such co-conspirators and accomplices should be subjected to “close and searching scrutiny,” particularly because of their past criminal records. See United States v. Caci, 401 F.2d 664, 672 (2d Cir. 1968), cert. denied, 394 U.S. 917, 89 S.Ct. 1180, 22 L.Ed.2d 450 (1969) . Immediately preceding this admonition, the court had given an “interested-witness” charge, instructing the jury to decide whether a witness had an interest in the case. The defense counsel for their own part had during cross-examination and summation vigorously advanced their contention that these co-conspirators were testifying in an effort to improve their lot with the prosecutor and government.

It must be recognized that no talismanic formula has been prescribed as the caution to be given to a jury regarding accomplice testimony. Much turns on the evidence in each case. In the setting here, although the better course would have been for the trial judge to caution the jury to scrutinize the testimony of accomplices in terms of their possible motivations rather than simply their records and activities, we think that the issue of the co-conspirators’ interest was “fairly put to the jury,” United States v. Blackwood, 456 F.2d 526, 531 (2d Cir.), cert. denied, 409 U.S. 863, 93 S.Ct. 154, 34 L.Ed.2d 110 (1972), and that the court’s instruction on accomplice and co-conspirator testimony was sufficient for that purpose. See United States v. Ploof, 464 F.2d 116 (2d Cir.), cert. denied sub nom. Godin v. United States, 409 U.S. 952, 93 S.Ct. 298, 34 L.Ed.2d 224 (1972); United States v. Cataldo, 433 F.2d 38, 41 (2d Cir. 1970), cert. denied, 401 U.S. 977, 91 S.Ct. 1200, 28 L.Ed.2d 326 (1971), reh. denied, 402 U.S. 934, 91 S.Ct. 1523, 28 L.E.2d 869 (1971); United States v. Falange, 426 F.2d 930, 933 (2d Cir.), cert. denied, 400 U.S. 906, 91 S.Ct. 149, 27 L.Ed.2d 144 (1970).

Quinones’ Claims

Like the other appellants, Quinones argues that the evidence was insufficient to link him to the conspiracy. We disagree. Quinones had been chosen by Flores to act nominally as legal counsel for Rimbaud. In fact, however, he did not limit himself to the performance of legal services. Indeed his efforts were devoted for the most part to unlawful efforts to carry out the conspiracy. From the outset, using his access as attorney to see his client Rimbaud at West Street, where Rimbaud was held, he sought to extract from Rimbaud the name of his French source so that Flores might continue the drug operation despite Rimbaud’s incarceration. When Rimbaud, hoping to gain release on bail, balked at making the disclosure, Quinones agreed to assist him in an attempt to raise bail money by smuggling letters in and out of West Street for Rimbaud. The letters, apparently written in French but unsealed, were used to hatch and implement a plan for smuggling heroin into the United States in ski poles, with the proceeds from the sale of the heroin to be used to furnish bail money for Rimbaud.

Quinones argues that it was reversible error to have admitted the prejudicial testimony concerning the “ski pole” incident because it was an independent, irrelevant operation, not part of the conspiracy charged in the indictment. However, his counsel objected to the proof belatedly and then withdrew the objection insofar as it might be based on the claim that the ski-pole incident was not in furtherance of the conspiracy, which precludes review here. United States v. Indiviglio, 352 F.2d 276 (2d Cir. 1965) (en banc). Even assuming that the issue is reviewable, Judge Bonsai adequately protected Quinones against prejudice by instructing the jury that the “ski pole incident is not part of the conspiracy in this indictment and please don’t consider the testimony about the ski poles in determining the guilt or innocence of any of these defendants.” Furthermore, this instruction was overly generous. The evidence of the ski-pole incident was relevant to the conspiracy since it represented an attempt by Rimbaud to gain his freedom so that he could resume his active role as a participant. The jury was entitled to infer from all the circumstances that Quinones was assisting him with knowledge of his unlawful purpose and in furtherance of the conspiracy. See United States v. Arroyo, 494 F.2d 1316 (2d Cir. March 22, 1974), where, in a remarkably parallel situation, evidence of efforts to finance the release of a jailed co-conspirator, some by his lawyer who was later named as a defendant in the indictment charging a large scale narcotics conspiracy, by arranging an importation of heroin, was held admissible on the ground that such activities were in furtherance of the broad narcotics conspiracy alleged.

The ski-pole incident was also relevant to explain Rimbaud’s subsequent decision to reveal his French source to Qui-nones. Only because his plan of raising bail money had been foiled by the Government’s seizure of the ski poles did Rimbaud agree to give Quinones the information that he and Flores sought. Rimbaud then gave Quinones an unsealed letter of introduction to his French associate, Jean Dieupart, directing Dieupart to connect Flores with the French supplier, provided Flores would agree to pay a 5% commission to Rimbaud on subsequent transactions. At the same time Quinones told Rimbaud that his legal fee would be $8,500 and that Flores had already paid $1,000 toward it. Rimbaud discussed the contents of the letter with Quinones, assuring him that Dieupart would pay him the remainder of his fee. Quinones and Flores then went to France and upon his return Quinones notified Rimbaud that Flores had made his connection with the French source. The entire background of Quinones’ smuggling of letters was thus probative of his guilty knowledge and intent.

Against this background of personal involvement, Quinones’ argument that there was insufficient evidence to link him to the conspiracy borders on the frivolous. Quinones’ participation, albeit belated, was crucial to the continuation of the single narcotics conspiracy charged in the indictment. Through Quinones Flores made direct contact with the French supplier and guaranteed the continued life of the operation in the face of Rimbaud’s imprisonment.

Quinones alternatively claims that Rimbaud’s version of their conversations in West Street was inadmissible hearsay because on several occasions he and Rimbaud had required the services of an interpreter, Christian Hysohion, who was a prisoner at West Street and Rimbaud’s erstwhile cohort in crime, see United States v. Hysohion, 439 F.2d 274 (2d Cir. 1971). One-third to two-thirds of Rimbaud’s conversations with Quinones were direct and in broken English. Rimbaud’s first-hand testimony as to this portion of these conspiratorial conversations is beyond any hearsay challenge. As for that part of the conversation in which Hysohion acted as translator, he functioned as an agent for the two co-conspirators, Rimbaud and Quinones, which rendered admissible Rimbaud’s testimony regarding statements made by Hysohion as an agent for Quinones.

The real concern here is less the hearsay nature of the Rimbaud testimony than it is the reliability of the Hysohion translation. See United States v. Tijerina, 412 F.2d 661, 664 (10th Cir.), cert. denied, 396 U.S. 990, 90 S.Ct. 478, 24 L.Ed.2d 452 (1969). We have, however, no reason to distrust the translation. No motive has been shown on the part of Hysohion to mislead either Rimbaud or Quinones. More importantly, as an external indicium of reliability attaching to the Hysohion translation, the actions that followed these conversations were entirely consistent with the content of the conversations as translated. Cf. United States v. Puco, 476 F.2d 1099, 1102-1105 (2d Cir.), cert. denied, 414 U.S. 844, 94 S.Ct. 106, 38 L.Ed.2d 82 (1973). We thus think it was proper to admit Rimbaud’s testimony regarding these translated conversations. See United States v. Tijerina, supra.

As a final point Quinones objects to the use of certain admissions he made on the occasion of a visit to the United States Attorney’s office. Quinones had been subpoenaed to appear before a grand jury investigating a narcotics case. He arrived too late to appear before the grand jury and went instead to the office of the Assistant United States Attorney handling the case. There he pressed the Assistant to tell him the reason for the subpoena. The Assistant advised him that he did not have to say anything and that he might be indicted on the matter then pending before the grand jury. Quinones insisted that he was anxious to cooperate. The Assistant then asked him whether he knew that it was a crime to smuggle letters from West Street and whether he had in fact smuggled any letters from there. Quinones replied that he had. After being fully advised of his rights, Quinones answered further questions concerning his role in the Flores case. At trial on the conspiracy charge the prosecution introduced these admissions in evidence against Quinones.

At a pretrial suppression hearing the Government disclosed that Quinones was already under a sealed indictment for the present conspiracy at the time he made these admissions to the Assistant United States Attorney. Quinones now objects that he was lulled into making an admission by the prosecutor’s failure to advise him that he was already under indictment. The prosecutor replies that he did not disclose the indictment to Quinones because none of the other members of the conspiracy named in the indictment had yet been arrested on the bench warrants issued for their arrest and that to reveal the existence of the indictment might jeopardize the Government’s chances of locating them.

Quinones could hardly have been lulled into making his admissions. Compare Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). He knew that the United States Attorney was investigating his role in the drug operation; he was warned that he might be indicted in the pending narcotics case; finally, he was advised that he need make no statements, a warning that Quinones as an attorney experienced in the practice of criminal law must have appreciated and fully understood. Quinones nonetheless chose to admit his role in smuggling letters, apparently because he thought that his admission would lend credibility to his denial of knowledge of the contents of the letters and thus avoid being implicated in the narcotics offense. Thus he was not lulled into admitting his part in smuggling letters from a federal prison, itself a felony offense (18 U.S.C. § 1791). Rather he made the admission in a calculated effort to exculpate himself from the more serious narcotics charge under consideration, which would probably carry a mandatory minimum prison term if he should be indicted and found guilty. Given Quinones’ awareness of the situation, we think the failure to disclose the sealed indictment did not materially affect his admissions. The evidence was thus properly admitted against him.

We find all other points raised by appellants to be without merit. The judgments of the district court are affirmed.

      . Appellants were sentenced to serve prison terms as follows: Santana, 12 years; Rivera, 5 years ; and Quinones, 5 years.

      . On October 25, 1972, a sealed indictment charging 16 defendants, including Quinones, with a conspiracy to import drugs was issued. Quinones made his admission to the Assistant United States Attorney on December 22, 1972. In 1973 two superseding indictments were issued. The latter of these formed the basis for the present case.


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Joseph F. PINTO, Defendant-Appellant.
    No. 1104, Docket 74-1202.
    United States Court of Appeals, Second Circuit.
    Argued June 6, 1974.
    Decided July 31, 1974.
    As Amended Oct. 9, 1974.

      Joseph A. Faraldo, Kew Gardens, N. Y., for defendant-appellant.
    Marshall Tamor Golding, Atty., Dept, of Justice (Edward J. Boyd, V., U. S. Atty., E. D. N. Y., Harold Meyerson, Sp. Atty., Dept, of Justice, on the brief), for appellee.
    Before KAUFMAN, Chief Judge, and MANSFIELD and MULLIGAN, Circuit Judges.
   MANSFIELD, Circuit Judge:

After a three-day jury trial before Judge Orrin J. Judd of the Eastern District, Joseph F. Pinto was on January 10, 1974, found guilty of committing perjury in violation of 18 U.S.C. § 1623 when he testified before a federal grand jury investigating bribery affecting harness racing as a possible violation of the sports bribery statute, 18 U.S.C. § 224, that he was the owner of a winning “su-perfecta” ticket which he had cashed for $1,272.00 on March 10, 1973 at a branch office of the Offtrack Betting Corporation (herein “OTB”). Appellant was sentenced to one year in prison, with all but 60 days of the sentence being suspended, and to an additional 18 months on probation. We affirm.

“Superfecta” wagering, as it has been instituted at several harness racing tracks across the country, requires the bettor, in order to win on his wager, to select not only the horse that will win a race but also the horse that will come in second, third and fourth, respectively. While the odds are obviously long, the potential size of the payoff compared to the necessary investment has attracted millions of bettors, many of whom have chosen not to rely on a single prediction alone but to bet on various combinations of horses in every conceivable order of finish which, in the parlance of the track, is generally known as “wheeling” or “boxing” horse combinations. At all times relevant here, OTB offered a “box” superfecta ticket for $72.00. The purchaser of this ticket, which actually encompassed 24 three dollar bets, gained a share of the payoff pool if the four horses he selected were the top four in the race, regardless of which of the four came in first, second, third or fourth.

During the course of its investigation of possible bribery affecting these su-perfecta races, a federal grand jury sitting in the Eastern District heard evidence that some of the heaviest bettors in the races had remained anonymous by having their winning tickets cashed by several other persons. While OTB kept no record identifying purchasers of su-perfecta tickets, a person cashing a winning ticket was generally required to give his name to an OTB clerk who completed a form — OTB Form 1099 — which was later submitted to the Internal Revenue Service.

On March 10, 1973, appellant entered OTB Branch Office #106 in Queens, New York, and, after a #1099 Form had been completed, received $1,272.00 for a winning $72.00 box ticket on a su-perfecta race which had taken place two days earlier, on March 8, 1973. Subsequently, on or about August 20, 1973, appellant was called as a witness before the grand jury and he was asked whether he or someone else was the owner of the ticket he cashed. Appellant responded that he, himself, was the owner. He had testified that he had purchased the winning ticket for himself on the day of the race, March 8, 1973, when he had also bought four other losing $72.00 box tickets on the same race. He purchased one of these tickets, he said, because the numbers of the four horses in the combination happened to correspond with the numbers on a sticker on his car and he purchased another of the tickets because the numbers of the horses corresponded with his daughter’s birthday. Later, the appellant was arrested for perjury in connection with this testimony but he repeated the same story to a federal agent. He told the agent that he had purchased his one winning and four losing tickets all at one time without interruption on March 8, 1973.

As proof at trial that appellant had lied when giving these answers, the government first introduced the #1099 from which had been completed when appellant cashed his ticket. The form showed that Joe Pinto, 20 Westwood Drive, Huntington, New York, had cashed a winning superfecta ticket which was numbered 567251206275 on March 10, 1973, at OTB Branch #106 in Queens, New York. Michael D. Shagan, an officer of the Security Branch of OTB, explained that every OTB ticket sold, regardless of the amount or type of bet, is numbered consecutively according to the date and window it is sold from. Thus there was only one OTB ticket numbered 567251206275, and in fact, such a ticket had been recovered from an OTB storage box containing all tickets cashed by Branch #106. The ticket, a $72.00 box superfecta ticket, showed on its face that it had been purchased on March 8, 1973, at window 2 of OTB Branch #64 at 88-22 Broadway, Queens, New York, which was the same branch where appellant said he had purchased his ticket. However, whereas appellant had testified that he had purchased his winning ticket with a group of only five such box tickets (including four losers), a “Branch Office Bet Report” covering Branch #64, window number 2, showed that ticket number 567251206275 had been purchased as part of a much larger group of thirty-five $72.00 superfecta box tickets. The “Report”, a computer printout listing in their proper order the consecutive numbers of all the tickets sold at the window on March 8 and indicating the type of bet — i. e. win, place, daily double, perfecta, exacta, superfecta, etc. —showed that the ticket number 567251206275 was the 19th of thirty-five consecutive $72.00 superfecta bets which were made in groups of seven on five different four horse combinations. The combinations were similar and showed a pattern in that all five combinations included the same two horses while all of them excluded two of the others. In the midst of this pattern ticket number 567251206275 was the fifth of seven consecutive bets on the winning combination. Thus the report indicated that number 567251206275, which according to the # 1099 form was the ticket cashed by appellant, was purchased as part of a $2,520.00 wager, probably by a professional gambler rather than by a casual wagerer such as appellant claimed to be. Gladys Lee, who was the OTB seller at window number 2,,branch #64, on March 8 testified that she had sold a group of thirty-five consecutive superfecta tickets to one person who made the bets all at one time and that the person making the bets was not appellant Pinto.

In response to a suggestion by defense counsel that a mistake may have been made either manually in copying the number of appellant’s winning ticket onto the # 1099 form completed at the time the ticket was cashed or by the OTB computers in issuing the ticket or in the “Bet Report” showing that the ticket was the 19th of thirty-five consecutive $72.00 superfecta box bets, Shagan testified that, in view of the various checks within the system, the odds against such a mistake going undetected were in the range of a “million to one [or] a trillion to one.” Shagan testified that a mistake in copying appellant’s winning ticket number onto the # 1099 form would have been detected since, according to standard operating procedures, OTB kept all the tickets it cashed in a central storage area, with the tickets cashed by each branch stored in a box labeled with that branch’s numbers. Investigation revealed that central storage box # 106 contained only one $72.00 ticket for the March 8 race which had been cashed on March 10 and the number of the ticket was 567251206275. Furthermore, an additional OTB computer report, which was entitled “Branch Office Payouts Made”, and which listed all tickets requiring a # 1099 form that had been cashed by OTB branches, indicated that the ticket number 567251206275 was the only winning superfecta ticket for the March 8 race cashed on March 10 at Branch # 106. Finally, Shagan testified that all winning superfecta tickets for the March 8 race had been cashed and accounted for. Since it was necessary for the OTB employee, who actually cashed ticket number 567251206275, to write that number down on the # 1099 form which was prepared at that time, if a mistake had been made OTB would be holding a cashed superfecta ticket without a corresponding # 1099 form. William Weg-lein, a computer expert employed by the American Totalizer Co., the principal computer company serving OTB, corroborated Shagan’s testimony by testifying that in his opinion there was “no way possible for the computer to have erred in either issuing the ticket or producing [the “Bet Report”] that substantiates the sale was made,” and further that if a mistake had been made it would have been detected in the normal course of operations.

The only witness called by the defense was Esther Nossov, an OTB clerk who had been employed at Branch # 106 on March 10, 1973 and whose name appeared on ticket 567251206275 as the clerk who cashed it. Her testimony, however, was not particularly helpful to appellant since it did not directly contradict the government’s evidence. She testified that she had not prepared the # 1099 form bearing the • appellant’s name and did not know who had prepared the form. Nor did she recall appellant as having come to her window in Branch # 106 with a ticket to be cashed.

The jury on January 10, 1974, returned a verdict finding appellant guilty of perjury. On this appeal from the judgment of conviction entered on February 1, 1974, appellant argues that he was denied a fair trial and that in any event the district court lacked jurisdiction to try him for perjury in connection with his grand jury testimony since the testimony concerned a matter which the grand jury was without power under 18 U.S.C. § 224 to investigate.

Discussion

Appellant argues that he was denied a fair trial because (1) his counsel was not given adequate time to prepare for trial (2) the government failed to identify or produce the OTB clerk or branch manager who actually prepared his # 1099 form and (3) the trial court summarized testimony inaccurately and made prejudicial comments in his charge to the jury, which were not based on evidence in the record. The first of these claims is frivolous. Appellant first appeared in court in connection with the perjury charge on August 25, 1973, when he was warned to retain counsel. When he returned on November 8, 1973, still without counsel, the court set trial for January 7, 1974, and warned him again that he should retain an attorney. In light of these warnings and the setting of the trial date two months in advance, the district court’s denial of a continuance when appellant’s counsel first appeared on January 3, 1974, was clearly within the trial judge’s discretion, particularly since no special need for a continuance was cited. See United States v. Maxey, 498 F.2d 474, 483 (2nd Cir. 1974); United States v. Rosenthal, 470 F.2d 837 (2nd Cir. 1972); United States v. Hall, 448 F.2d 114, 116-117 (2d Cir. 1971). Nor was the government required to identify or produce the OTB employee who prepared appellant’s # 1099 form, since the government had no special knowledge as to that employee’s identity, or that his testimony would be exculpatory. Compare Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967) with United States v. Ruggiero, 472 F.2d 599, 603-605 (2d Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2772, 37 L.Ed.2d 398 (1973). Indeed when the government prosecutor did discover the employee’s identity after all the evidence had been presented but before the trial court had instructed the jury, he immediately offered to disclose the identity to appellant’s counsel, but appellant’s counsel showed no interest in pursuing the matter.

The trial court’s charge to the jury is more troublesome. While most of the statements complained of were clearly within permissible bounds, Judge Judd went beyond the evidence in commenting that a possible explanation was highly improbable, as follows:

“If you look at the print-out you find 35 successive $72.00 bets and it is possible that 35 different people came up and made successive $72.00 bets and Mr. Pinto just bought one of the tickets. However, if you look at the variety of bets on this same sheet, there were many more than ten different bets and if you take random selections — which is how you were selected, out of a computer, to come to the jury —and assume even that the average person might make two bets instead of one, the chances of 18 different persons making successive similar bets would be — / would suppose about one in 10, on each bet, with 18 zeros after it which is more than one in a trillion. My mathematics may be wrong. Perhaps one of you drew 13 cards of the same suit in a bridge game. You know the possibilities of that.” (Emphasis added)

There was no evidence that the odds against 35 or even 18 “people making successive similar bets” were as great as a trillion to one. Under different circumstances such an addition might merit reversal. But in this case appellant’s counsel failed to make any specific objection to the charge, which is ordinarily a prerequisite to appellate review. See Fed.R.Crim.P. 30, United States v. Projansky, 465 F.2d 123, 135 (2d Cir.), cert. denied, 409 U.S. 1006, 93 S.Ct. 432, 34 L.Ed.2d 299 (1973); United States v. Indiviglio, 352 F.2d 276 (2d Cir. 1965) (en banc), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). To be sure, in response to the court’s own inquiry after completing his charge as to whether either counsel had any exceptions, counsel for appellant did say, “The only exception I have to your charge is as to the comments on the evidence.” However, such an exception is “so general as to be unavailing.” See United States v. Carson, 464 F.2d 424, 432 (2d Cir.) cert. denied, 409 U.S. 949, 93 S.Ct. 268, 34 L.Ed.2d 219 (1973).

Nor do we find that the comment, although unfortunate, was so prejudicial as to constitute “plain error . affecting substantial rights,” within the meaning of Rule 52(b), Fed.R.Crim.P., Compare United States v. Indiviglio, supra, with United States v. Clark, 475 F.2d 240 (2d Cir. 1973) and United States v. Fields, 466 F.2d 119 (2d Cir. 1972). Certainly, proof of Pinto’s guilt was overwhelming. According to both Shagan and Weglein, the possibility of computer error was in the neighborhood of one in a trillion, odds which rendered the lack of a sequential ticket purchase by Pinto virtually inexplicable. And, while the probability projections contained in the comment were not supported by any evidence in the record, we can scarcely say they were material exaggerations. Even assuming appellant could show that Judge Judd’s estimate of one in a trillion was off by several millions or even billions, the odds against the hypothetical theory of the possible defense being advanced and analyzed by Judge Judd — that several persons might have purchased the 35 consecutive $72.00 superfecta tickets • — were obviously infinitesimal. Moreover, while making his calculations, Judge Judd explained that he was only guessing and had no special expertise in the area. Thus this case is distinguishable from Quercia v. United States, supra, where the trial court instructed the jury that based on his own expertise in observing'mannerisms, he believed the defendant had testified falsely “except when he agreed with the government’s testimony.” Finally, immediately before and after making his calculations, Judge Judd emphasized that the jurors themselves were the final judge of the evidence. Viewing these instructions as a whole as we are required to do, see, e. g., United States v. Jacobs, 475 F.2d 270, 287-288 (2d Cir. 1973), we do not find that'they amounted to a direction to find the defendant guilty, which would call for reversal regardless of the failure to make any specific objection. At the same time we must warn the district court that our action in this case is not to be construed as condoning volunteered instructions of the type found here. For a trial judge to embark upon such unnecessary off-the-cuff remarks poses the obvious risk that under some circumstances they may jeopardize the defendant’s right to a fair trial. See e. g., United States v. Clark, 475 F.2d 240, 250-251 (2nd Cir. 1973).

Appellant’s final argument that he was immune from perjury prosecution with respect to his grand jury testimony since the grand jury lacked power or authority under 18 U.S.C. § 224 to investigate bribery affecting harness racing, cf. Brown v. United States, 245 F.2d 549 (8th Cir. 1957), is frivolous. It rests on the surprising assertion that a harness race is not a “sporting contest” within the meaning of 18 U.S.C. § 224(c) (2) since it involves animals rather than “individual contestants.” However, the word “individual” when used as an adjective does not necessary pertain to humans only, see Webster’s Third New International Dictionary 1152, and the legislative history manifests a Congressional intent to prohibit bribery of any person who can influence sports results. See H.Rep. 1053, 2 U.S.Code Cong. & Admin.News p. 2250 (1964). Furthermore, the drivers who are undeniably “individuals”, are an essential part of the contest, which frequently turns on their respective skills.

The judgment of conviction is affirmed.

      . Completion of this form is required whenever the cash payoff on a $3.00 superfecta bet (24 of which are contained in a $72.00 box bet) is greater than $900.00 or 299 to 1.

      . The first three digits of the ticket number indicate the date the ticket was sold according to the Julian calendar system, the next four digits indicate the OTB computer involved in processing the ticket (which will reveal the branch and window number) and then the eighth, ninth, tenth, and eleventh digits are the sequential number of the ticket sold from the window. The final digit is randomly generated by the OTB comxmter as a security and control check. Thus ticket number 567251206275 was the six hundred and twenty seventh ticket sold from window 2, branch 64, on March 8, 1973.

      . Counsel said only that he needed more time to prepare motions — including a motion to dismiss for lack of jurisdiction — and to prepare a defense. He did not say he needed time to find a computer expert, which is the principal basis of his argument here.

      . For example, appellant complains that instead of saying that Shagan testified that the odds against a manual or computer mistake going undetected were in the range of a million or a trillion to one, Judge Judd said Shagan testified that the odds against a manual or computer mistake being made at all were in the range of a million or a trillion to one. In fact, Judge Judd charged:
      My recollection of Mr. Shagan’s testimony was that he said there are possibilities of errors in a computer but when you consider the various checks and methods of detecting the errors and the relationship between the numbers on the ticket and the numbers on the magnetic drum as reflected on the printout, the chances of error is in relation to one in a trillion and a trillion is a million, million.
      This is hardly a material misrepresentation of what Shagan actually said.

      . 18 U.S.C. § 224(c) (2) provides :
      The term “sporting contest” means any contest in any sport, between individual contestants or teams of contestants (without regard to the amateur or professional status of the contestants therein), the occurrence of which is publicly announced before its occurrence.


author: EAST, Senior District Judge:

text:
    Richard ADDRISI, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, a New York corporation, Defendant-Appellee.
    No. 72-2607.
    United States Court of Appeals, Ninth Circuit.
    Sept. 30, 1974.

      George D. Donnahoe, Hollywood, Cal., for plaintiff-appellant.
    Frank R. Johnston (argued), George W. Tackabury, of Newlin, Tackabury & Johnston, Los Angeles, Cal., for defendant-appellee.
    Before ELY and CARTER, Circuit Judges, and EAST, Senior District Judge.

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

   OPINION

EAST, Senior District Judge:

The plaintiff-appellant Richard Addri-si (Addrisi), on behalf of himself and all others similarly situated, appeals from the District Court’s order dismissing with prejudice his first amended class action complaint on the ground and for the reason that the pleading “fails to state a claim upon which relief can be granted, and that the [District] court lacks jurisdiction over the subject matter.” We affirm.

Sufficient for the purposes of this appeal is the following narrative of the allegations contained in the pleading:

Addrisi sought a treble damage award from the defendant-appellee The Equitable Life Assurance Society of the United States (Equitable) for alleged violations of Title 15 U.S.C. §§ 14 and 15, commonly known as the Clayton Act, and § 2 of Title 15, commonly known as the Sherman Act, (antitrust laws of the United States) arising out of Equitable’s requirements and practices in its insurance-lender enterprises.

Equitable is a corporation incorporated under the laws of the State of New York and authorized to engage in the business of issuing life and other kindred forms of insurance in the State of California, and has at all pertinent times pursued the practice of making so called Assured Home Owner Loans, secured by deeds of trust, to individuals for the purpose of financing the purchase of residential real property sites, specifically offering its Home Owner Loans to prospective policyholders at a lower interest rate than the general prevailing interest rates offered by other institutional lenders in the immediate area. In these instances, Equitable’s insurance agent also acts as the loan agent, and as a condition to and a “tie-in” practice with ultimately making these loans, Equitable requires as additional security that the prospective borr rower and policyholder purchase through its joint loan broker and insurance agent a type of a “cash value” life insurance policy known as the “Adjustable Whole Life” policy. This policy has a high cost to the policyholder and returns high commissions to the joint loan broker and insurance agent. The tie-in requirement of the purchase of such a policy from Equitable with the making of the loan is accomplished through the vast economic power of Equitable exerted through the joint loan broker and insurance agent. The agent with human inclinations to either press for or lag with disparaging expressions or statements on the loan application exerts economic coercion upon the prospective borrower to purchase the Equitable policy.

Addrisi applied for an Equitable loan, was subjected to that type of economic coercion, purchased the Equitable policy and secured the loan, all at a greater expense and cash outlay to him of some $864 over the cost of the usual and customary type of term life policy.

It is important to here note that Ad-drisi’s allegations and complaints against Equitable are in sum and substance identical to the allegations contained in the proposed second amended complaint dealt with by the California District Court of Appeal for the Second District in Greenberg v. The Equitable Life Assur. Society of the United States, 34 Cal.App.3d 994, 110 Cal.Rptr. 470 (1973).

ISSUES

We are satisfied that the main meritorious contentions of the parties in this appeal narrow down to presenting three simple issues for our consideration, namely:

(1) Was Equitable engaged in the business of insurance at the time of its alleged conduct ?
(2) If so, was its business of insurance regulated by the State of California within the meaning of Title 15 U.S.C. § 1012, commonly known as the McCarran-Ferguson Act?
(3) Or was Equitable’s alleged acts of economic coercion an “act of coercion,” within the thrust of § 1013(b) of Title 15 U.S.C. and thus subject to the proscriptions of the Sherman Act?

DISCUSSION

Issue 1:

Our answer to issue 1 is readily in the affirmative. Addrisi’s allegations establish that Equitable is qualified and does actively engage in the business of life insurance within the State of California as well as all other sister states. While Equitable does also engage in the real estate loan business in California as an adjunct to its business of insurance, Ad-drisi complains only of the tactics and practices of Equitable in connection with its business of insurance as being proscribed by the antitrust laws of the United States. It is difficult for us to envision a local real estate mortgage loan which together with real estate loan brokers, is fully regulated by local state law as being in commerce.

Issue 2.

During the period between the years 1870 and 1944, the Congress and the United States courts adhered to the concept that the business of “[ijssuing a policy of insurance is not a transaction of commerce.” Paul v. Virginia, 75 U.S. (8 Wall) 168, 183, 19 L.Ed. 357. Consequently regulation and policing of the business of insurance was thought to rest exclusively with the states. Then came the decision in United States v. South-Eastern Underwriters Ass’n., 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944), holding “that insurance transactions were subject to federal regulation under the Commerce Clause, and that the antitrust laws in particular, were applicable to them.”

Congress clearly [became] concerned about the inroads [that] decision might make on the tradition of state regulation of insurance. The McCarran-Ferguson Act was the product of this concern. Its purpose was stated quite clearly in its first section; Congress declared that “the continued regulation and taxation by the several states of the business of insurance is in the public interest.” ... 15 U.S.C. § 1011. As this Court said shortly afterward, “[o]bviously Congress’ purpose was broadly to give support to the existing and future state systems for regulating and taxing the business of insurance.” Prudential Insurance Co. v. Benjamin, 328 U.S. 408, 429, 66 S.Ct. 1142, 90 L.Ed. 1342, . . . (1946). (Emphasis supplied). S. E. C. v. National Securities, 393 U.S. 453, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969).

In furtherance of that purpose, § 1012 of Title 15, in its pertinent parts, provides :

(a) The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.
(b) No Act of Congress shall be construed to invalidate, impair or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: Provided, That after June 30, 1948, the Act . known as the Sherman Act, and the Act . . . known as the Clayton Act, . . . shall be applicable to the business of insurance to the extent that such business is not regulated by State law. (Emphasis supplied).

National Securities, supra, at page 460, 89 S.Ct. at page 569, teaches that the relationship between an insurer and its insured, the type of policy which can be issued, its liability, interpretation and enforcement constitute the core of the business of insurance, and that it is clear that the focus of the McCarranFerguson Act was on the relationship between an insurance company and its policyholder. “Statutes aimed at protecting or regulating this relationship, directly or indirectly are laws regulating the 'business of insurance.’ ”

Generally speaking, the State of California has enacted laws extensively “regulating the business of insurance,” which have been in effect at all pertinent times, and particularly Article 6.5, Insurance Code of the State of California, §§ 790-790.10, inclusive, entitled “Unfair Practices.” Accordingly we hold that the State of California regulates Equitable’s business of insurance (the relationship between it and its insureds and the issuance of life policies) within the meaning of § 1012(a) and (b); and further, whether the California laws proscribe or permit the alleged acts of economic coercion in the issuance of life insurance policies is of no concern to the full force and effect of § 1012(a), and (b). California League of Independent Insurance Producers v. Aetna Casualty & Surety Company, 175 F.Supp. 857 (N.D.Cal.1959) and Ohio AFL-CIO v. Insurance Rating Board, 451 F.2d 1178 (CA6 1971).

Nor are those alternates to our judicial concern, except to note that apparently Addrisi’s alleged acts of economic coercion on the part of Equitable are viable claims under California law. Greenberg, supra.

Issue 3:

Addrisi contends that the alleged acts of economic coercion on the part of Equitable remain subject to and are proscribed by the Sherman Act under the provisions of § 1013(b), Title 15, providing :

(b) Nothing contained in this chapter shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, ... or act of boycott, coercion, .... (Emphasis supplied).

Similar contentions as to alleged acts of boycott as used in § 1013(b) were heard and rejected in Meicler v. Aetna Casualty and Surety Company, 372 F.Supp. 509 (S.D.Tex.1974); and Transnational Insurance Company v. Rosenlund, 261 F.Supp. 12 (D.Ore.1966). We agree with the rationale expressed in each of those cases in that it is evident from an examination of the legislative history behind § 1013(b) that the intent of Congress was to reserve unto the reach of the Sherman Act only a narrow area of restraint of trade activity among those in the business of insurance, namely, antitrust acts among insurance companies and agents for the purpose of boycott or coercion among insurance companies and agents. Transnational states: “[t]he legislative history [behind the McCarran-Ferguson Act] shows that the boycott, coercion exception, was placed in the legislation to protect insurance agents from the issuance by insurance companies of a ‘black-list,’ which would name companies or agents which were beyond the pale. This list, in effect, was a directive to an agent not to write insurance in the name of or for the blacklisted company; otherwise, he would be stripped of his agency and not permitted to write insurance for any of the members of the governing organization of insurance companies.” “1. 91 Congressional Record, p. 1087 (79th Congress, 1st Session).” As so succinctly stated in Meieler, 372 F.Supp. at page 514, so it is here:

Neither party has cited nor can this Court locate any decision applying § 1013(b) in the context of an alleged combination of insurance companies to boycott, coerce, or intimidate policyholders at large. (Emphasis supplied).

We believe to hold otherwise would vitiate the McCarran-Ferguson Act in its concept of setting over unto the several states the regulation and protection of the insurer-insured relationship. National Securities, supra, 393 U.S. at page 460, 89 S.Ct. 564, and Transnational, supra, 261 F.Supp. at page 28.

Whatever meaning or interpretation the California court in Greenberg, supra, may have addressed to the words “acts of coercion” as used in § 790.03(c) of the California Insurance Code can be of no concern here. That California court was in no way dealing with or attempting to interpret or construe the like language as used in § 1013(b). In this appeal, we are not concerned with the meaning or the language of the words “acts of coercion” as used in § 1013(b) per se, but only of what class of persons or business relationship is protected from “acts of coercion” under the Sherman Act through the reserving thrust of § 1013(b). As pointed out above, neither Greenberg or Addrisi enjoy that protection.

Finally, we conclude that the District Court was correct in dismissing the first amended class action complaint with prejudice on the ground and for the reason that the pleading fails to state a claim upon which relief can be granted under the antitrust laws of the United States.

Affirmed.

      . We are advised that Equitable chose not to petition the Supreme Court of California for a Hearing.

      . In this connection, see Article 5.5, Insurance Code of the State of California, §§ 770-776, entitled “Insurance in Connection with Sales and Loans.” This section was not dealt with in the companion state case of Greenberg.

      . We assume, without expressing any opinion, that Addrisi’s allegations state a viable claim for relief in the antitrust sense under the Sherman Act.

      . “‘Coercion’ prohibited by [§ 790.03(c)] is thus coercion in the antitrust sense, conduct which constitutes the improper use of economic power to compel another to submit to the wishes of one who wields it. (Atlantic Refining Co. v. Federal Trade Commission, 381 U.S. 357, 368-369, 85 S.Ct. 1498, 14 L.Ed.2d 443, . . . Simpson v. Union Oil Co. of Calif., 377 U.S. 13, 17, 84 S.Ct. 1051, 12 L.Ed.2d 98)” 110 Cal.Rptr. at page 474.

      . It is manifest that Greenberg inferentially held § 1013(b) had no application to the “acts of coercion” alleged, else the state court lacked jurisdiction.


author: WEBSTER, Circuit Judge.

text:
    FLAVOR CORPORATION OF AMERICA, Appellant, v. KEMIN INDUSTRIES, INC., and Holland W. Nelson, Appellees.
    No. 74-1471.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 17, 1974.
    Decided Oct. 11, 1974.

      William E. Lucas, Chicago, 111., and Donald A. Wine, Des Moines, Iowa, for appellant.
    Donald H. Zarley and Michael G. Voorhees, Des Moines, Iowa, for appel-lees.
    Before LAY, BRIGHT and WEBSTER, Circuit Judges.
   WEBSTER, Circuit Judge.

In this appeal, Flavor Corporation of America (FCA) challenges an order of the District Court which FCA contends contravenes a prior judgment and injunction of the same court which, upon appeal, this court approved and affirmed.

Briefly summarized, the holding of the District Court in the original action was as follows: (1) the registered trademark “PESTLUR” held by FCA was a descriptive mark and, since not incontestable, was entitled to protection only where it had acquired a secondary meaning; (2) as of the date of the injunction, such secondary meaning had been established only in the states of Georgia and Florida; (3) the common law trademark “LURE” held by Kemin Industries, Inc. (Kemin) had been adopted in good faith and without prior knowledge of FCA’s “PESTLUR” and had acquired superior common law trademark rights in ten other states prior to the registration of “PEST-LUR”; (4) the Lanham Act controlled in the remaining 38 states; and (5) the marks “PESTLUR” and “LURE” were so confusingly similar as to cause a likelihood of confusion. Accordingly, the District Court enjoined Kemin “from competing with plaintiff, Flavor Corporation of America under its ‘LUR’ [sic] trade marks in the states of Georgia and Florida.” Further injunctive relief was denied.

Kemin sought, pursuant to Fed.R.Civ. P. 59, to have the order amended to permit Kemin to continue advertising in national publications. The District Court denied the motion stating its belief that such an amendment would “severely dilute the original judgment.” Kemin raised this issue on its cross-appeal but never sought anything less than an unlimited right to advertise products using the “LURE” mark in national publications, whether or not such publications reached the states of Georgia and Florida. We affirmed the District Court. Flavor Corp. of America v. Kem-in Industries, Inc., 493 F.2d 275 (8th Cir. 1974). In dealing with the issue of national advertising, we said:

The trial court properly considered the advertising factor and its conclusion that ‘Pestlur’ had not acquired a secondary meaning in the 38 states controlled by the Lanham Act is not clearly erroneous. Kemin, on the other hand, must accommodate its own advertising program to the District Court’s injunction, in order to avoid further infringement in Florida and Georgia. Modern marketing techniques permit such accommodation in most instances; in others Kemin must suffer the burden resulting from its infringement.

493 F.2d at 284.

The Present Appeal

Subsequent to the original appeal, Kemin sought leave in the District Court to use its mark in connection with national advertising with a notation that “These flavors available only under the trademark ‘TREET’ in Georgia and Florida.” The District Court refused this request, but entered an order granting Kemin permission to advertise its products in national publications, providing the marks were accompanied by an asterisk and a notation in equal type size that “This product is not available in Georgia and Florida.” It is from this order that FCA now appeals.

FCA contends that the effect of the District Court’s order is either (1) to modify without the consent of this court an injunction in effect sealed by our affirmance or (2) to render an advisory opinion, contrary to law. We reject these contentions and affirm the order of the District Court.

The original order of the District Court enjoined Kemin only from “competing” with FCA under its “LURE” marks in the ' states of Georgia and Florida. Kemin was therefore free to advertise in all of the remaining 48 states, at least until FCA’s marks acquired a secondary meaning in one of the 38 states governed by the Lanham Act. The injunction posed a very practical problem for Kemin in planning its national advertising program. On the one hand, it had been denied permission to have national advertising excluded from the injunction against “competing.” On the other hand, the injunction did not expressly preclude advertising which carried a satisfactory disclaimer as to the two states covered by the injunction. Kemin therefore sought and obtained from the District Court a clarification of its ruling, rather than risking a contempt citation should its own interpretation prove to be erroneous.

We cannot agree that anything in our opinion precluded the relief sought and obtained in the District Court. We held that Kemin must accommodate its advertising program to the injunction and that “[mjodern marketing techniques permit such accommodation in most instances. . . . ” Thus, while we upheld the trial court’s refusal to exclude all national advertising from its injunction, we said nothing to preclude the District Court from considering the intended scope of its own injunction. Reliance upon Rhodes v. Houston, 258 F.Supp. 546 (D.Neb.1966), aff’d, 418 F.2d 1309 (8th Cir. 1969), cert. denied, 397 U.S. 1049, 90 S.Ct. 1382, 25 L.Ed.2d 662 (1970), is therefore misplaced.

It is. well established that injunctions do not give rise to vested rights; they enforce only rights existing under current law and conditions. United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932). While a decree may not normally be changed in the interests of the defendants if the purposes of the litigation as incorporated in the decree have not been fully achieved, unforeseen hardships to the defendants may be considered, especially where there are (1) changes in operative facts, (2) changes in the relevant decisional law, and (3) changes in any applicable statutory law. See 11 C. Wright & A. Miller, Federal Practice and Procedure § 2961, at 604-05 (1973); Developments in the Law — Injunctions, 78 Harv.L.Rev. 994,1080-86 (1965).

We do not think, however, that the action of the District Court was a modification of the decree, as that term is traditionally understood. More accurately, it was a clarification of the intended reach of a briefly worded decree enjoining Kemin “from competing with plaintiff, Flavor Corporation of America under its ‘LUR’ [sic] trade marks in the states of Georgia and Florida.” While the District Court, in its separate order declined to exclude all national advertising from the reach of its injunction, it neither was asked to, nor did it, deal with the type of controlled use of national advertising submitted to it following our affirmance. It is common knowledge that advertisements in national publications are not readily susceptible of modifications to permit variations in format in the respective states. If the original injunction were read as prohibiting the use of all advertising in national publications which might find their way into the states of Georgia and Florida, it would cast an obvious hardship upon Kemin since such an order would, as a practical matter, preclude Kemin from advertising in national publications intended to reach the remaining 48 states in which it has a clear right to advertise. The trial judge, upon motion of Kemin, set out to refine his original decree to make clear a proper balancing of competing interests in fashioning an appropriate remedy. By his order, he demonstrated that he intended to foreclose Kemin from selling or advertising for sale in Georgia and Florida any of its products sold elsewhere under the “LURE” mark. He required the advertising to make that nonavailability in Georgia and Florida plainly evident.

FCA argues that it is not enough that such advertising discloses the nonavailability of Kemin’s products in Georgia and Florida; it contends that any advertising which contains the confusingly similar “LURE” mark under such circumstances will lead potential customers to believe that “PESTLUR” is not available in Georgia or Florida. While this argument is not without merit, we hold that the trial court did not abuse its discretion in balancing the competing interests of the parties in the manner which it selected. The bare possibility that a potential customer of “PESTLUR” might be misled by Kem-in’s advertisement into thinking he could not obtain “PESTLUR” in Georgia and Florida is insufficient to justify the punitive effect of an injunction construed to prohibit all national advertising. The District Court did not so intend its decree and made this clear in its subsequent order.

We do not intend to hold that clarification orders are appropriate in every circumstance. Clarification is largely discretionary with the trial court. See Regal Knit Wear Co. v. NLRB, 324. U.S. 9, 15, 65 S.Ct. 478, 481, 89 L.Ed. 661 (1945). The original injunction was terse in form. It did not attempt to come to grips with problems of competition which were apt to flow from the complex findings of the court, which gave priority to FCA in two states, priority to Kemin in ten states and made competition between the parties in the remaining 38 states subject to the Lanham Act. Just “as events may shape the need” for modification, we hold that the District Court which issues an injunction has the same “wide discretion” to clarify or define the original injunction as it has on consideration of a motion to vacate or modify. System Federation No. 91, Railway Employes’ Department, AFL-CIO v. Wright, 364 U.S. 642, 648, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961). There has been no showing in this case that such discretion was abused.

Affirmed.

      . Flavor Corp. of America v. Kemin Indus., Inc., 493 F.2d 275 (8th Cir. 1974).

      . See 15 U.S.O. § 1072.

      . The finding that the marks were confusingly similar was based upon a prior finding by the Court of Customs and Patent Appeals; the District Court applied principles of collateral estoppel, and we affirmed.

      . United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, (1932).


author: CHAMBERS, Circuit Judge.

text:
    Robert Newton GARDNER, Jr., Petitioner, Plaintiff and Appellant, v. D. J. McCARTHY, Superintendent, Respondent Appellee, Raymond K. Procunier et al., Defendants Appellees.
    Nos. 74-1775, 72-2929.
    United States Court of Appeals, Ninth Circuit.
    Aug. 13, 1974.

      Jerald W. Newton (argued), Beverly Hills, Cal., for appellant.
    Russell Iungerich, Deputy Atty. Gen. (argued), Los Angeles, Cal., for appel-lees.
    Before CHAMBERS and CHOY, Circuit Judges, and McNICHOLS, District Judge.
   OPINION

CHAMBERS, Circuit Judge.

In No. 74-1775, the Supreme Court vacated our earlier judgment affirming the refusal to grant a writ of habeas corpus and remanded the case for consideration in light of Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Gardner v. McCarthy, 412 U.S. 916, 93 S.Ct. 2737, 37 L.Ed.2d 142 (1973).

Gardner’s parole was revoked in 1971, prior to the Supreme Court’s decision in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), requiring parole revocation proceedings to satisfy certain due process criteria. These standards, however, were expressly made applicable only to future revocation hearings. Id. at 490, 92 S.Ct. 2593. Thus although Gardner had anticipated Morrissey by himself insisting upon the rights there announced, we affirmed the denial of his petition.

Subsequently, the Supreme Court in Gagnon v. Scarpelli, supra, extended the Morrissey requirements to include representation by counsel at parole and probation revocation proceedings. This, too, Gardner anticipated in 1971. In the aftermath of Scarpelli the Court vacated the judgments in a number of cases pending before it and remanded them for further consideration. This seemed to suggest that perhaps here a result different from Morrissey should be reached on retroactivity.

The Supreme Court has now, however, itself given some further direction on the question, and has confirmed that the standards announced in both Morrissey and Scarpelli should be given prospective application only. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The problem is one of balance. Although the lack of counsel is related to the integrity of the fact finding process, a proper concern for the potential burden on state and federal authorities of re-determining even a minority of parole revocations, coupled with the realization that the old procedures were not utterly unreliable, compels the conclusion that the Scarpelli requirements must also be applied only to future proceedings. Wolff v. McDonnell, supra, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935.

Gardner’s alternate contention, that his case merits a new hearing under the rule of Dennis v. California Adult Authority, 456 F.2d 1240 (9th Cir. 1972), must also be rejected. One of the charges against Gardner in the revocation hearing was that he had been convicted of assault while on parole. This was sufficient to support revocation, and the fact of conviction was not in dispute. Id. at 1242; see Mead v. California Adult Authority, 415 F.2d 767 (9th Cir. 1969).

No. 72-2929, consolidated with the remanded case, is Gardner’s appeal from the dismissal of his complaint brought under 42 U.S.C. § 1983. In this complaint Gardner alleged the same facts as in the habeas corpus petition and asserted that they constituted a violation of his civil rights. The relief sought was release and a new revocation hearing. The Civil Rights Act may not be used to obtain this relief. Gardner’s sole avenue was habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).

The judgments are affirmed.