text:
    PORTLAND BASEBALL CLUB, INC., Plaintiff-Appellant, v. Bowie K. KUHN et al., Defendants-Appellees.
    No. 72-1568.
    United States Court of Appeals, Ninth Circuit.
    Feb. 6, 1974.
    Donald C. Walker, Mark M. Mc-Culloch, Portland, Or., for plaintiff-appellant.
    Walter J. Cosgrove, of Maguire, Kester & Cosgrove, Louis L. Hoynes, Jr., Robert J. Kheel of Willkie, Farr & Gallagher, New York City, James P. Garner, Warren Daane, Don H. Pace, of Baker, Hostetler & Patterson, Cleveland, Ohio, Alexander H. Hadden, Gen. Counsel, Office of the Commissioner of Baseball, New York City, for defendants-appellees.

       The Honorable William T. Beeks, United States District Judge for the Western District of Washington, sitting by designation.

   OPINION

Before DUNIWAY and SNEED, Circuit Judges, and BEEKS, District Judge.

PER CURIAM:

This case grew out of the effort during the late Sixties to bring major league baseball to Seattle and San Diego. . The plaintiff, Portland Baseball Club, Inc., formerly owned the Pacific Coast League franchise in Portland. The advent of major league baseball in Seattle would have substantially reduced the value of the plaintiff’s franchise.

Organized baseball has a procedure by which compensation is provided to owners of minor league franchises for such injury to their territories, the heart of which is Rule 1(a) of the Professional Baseball Rules. The relevant portion of this rule reads:

“(a) Protection of National Association Territory. “No territory in which a National Association franchise is being operated under protection of the Professional Baseball Agreement shall be included in any Major League until such National Association League and National Association Club shall be paid such compensation as shall be mutually agreed upon as just and reasonable compensation for such action. A Major League or Major League Club desiring to acquire National Association territory must file notice of its intention to do so with the Commissioner between October 1 and October 31 (both inclusive), next preceding the first season it proposes to operate in such city.”

The terms “National Association League” and “National Association Club” refer to a minor league and a minor league club respectively.

Following timely notice in 1968 by the recently-formed Seattle Pilots and San Diego Padres of their intention to operate in Pacific Coast League territory, negotiations to fix the compensation required by Rule 1(a) between the Pacific Coast League and the Pilots and the Padres were unsuccessful. As provided by the Professional Baseball Rules, the matter was submitted to arbitration, the result of which was an award to the Pacific Coast League of three hundred thousand dollars for the loss of the Seattle territory and two hundred and forty thousand dollars for the loss of the San Diego territory. The plaintiff in due course received its proper share of these amounts. These awards were incorporated into a settlement agreement in which the Pacific Coast League “for itself and member clubs” acknowledged that the “execution of this Agreement constitutes full satisfaction of all claims, causes of action, interests and rights to idemnify whether arising at law, in equity or pursuant to Professional Baseball Rule 1(a) or any other baseball rule or regulation.”

Thereafter, on November 25, 1969, the plaintiff sold “all its right, title and interest” in its Pacific Coast League franchise to the Portland Beavers, Inc., reserving only its interest in the arbitration awards.

Not satisfied with these awards and perhaps distressed by the fact that, while the Padres paid the National League ten million dollars for League membership and the Pilots $5,535,000 to the American League for similar rights, neither major league paid a cent to the Pacific Coast League and its member clubs, the plaintiff brought this suit against the Commissioner of Baseball, the two major leagues, the individual major league clubs, other than Seattle and San Diego, the president of the Pacific Coast League and individual member clubs of the Pacific Coast League.

The plaintiff’s theory of recovery appears to be that there has been no compliance with Rule 1(a) because at the time of the negotiations and arbitration the Pilots and the Padres were not “Major League Clubs” inasmuch as neither at that time had fielded a team. The negotiations and arbitration consequently did not fulfill the obligation of the “Major League or Major League Club” to provide compensation.

The defendants answered by denying that jurisdiction existed, asserting that the plaintiff was not the real party in interest, having sold its franchise to the Portland Beavers, Inc., and contending that plaintiff was bound by the arbitration.

Judge Solomon heard the case and in a thorough opinion, D.C., 368 F.Supp. 1004 (1974), found that jurisdiction existed. He then held that the plaintiff was not the real party in interest under Rule 17(a), F.R.Civ.P., but that even if it were, it was bound by the arbitration. Judge Solomon properly concluded that the Padres and Pilots became major league clubs when their membership agreements with the major leagues were signed in 1968. The plaintiff’s theory thus collapses. We can do no better than to adopt Judge Solomon’s opinion as our own. This we do. Finally, the plaintiff’s claim for relief under the antitrust laws was properly dismissed. Flood v. Kuhn, 407 U.S. 258, 92 S.Ct. 2099, 32 L.Ed.2d 728 (1972).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Roger C. MYERS, d/b/a Romyco Stereo, Plaintiff-Appellant, v. AMPEX, INC., et al., Defendants-Appellees.
    No. 73-3510
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 1, 1974.
    Roger C. Myers, pro se.
    Stan McMurry, Dallas, Tex., for Cap. Records.
    James W. Mehaffy, Beaumont, Tex., for Columbia.
    R. Daniel Settle, Fort Worth, Tex., for RCA.
    J. Hoke Peacock, II, Beaumont, Tex., for Harry Fox Agency, Inc.
    John F. Still, pro se.
    Joseph Bonner, Nowata, Okl., for defendants-appellees.
    Before BROWN, Chief Judge,, and THORNBERRY and AINSWORTH, Circuit Judges.

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

   PER CURIAM:

The-court below dismissed this pro se antitrust action on res judicata grounds, stating that the district court for the Western District of Oklahoma previously-had dismissed an identical action for failure to state a claim upon which relief can be granted.

Unfortunately the record‘before us is incomplete. Since it does not contain the complaint from the prior action, we cannot verify that the two actions are the same. The dismissal order is the only document we have in the record from the first action, and it does not disclose what claims were litigated. Therefore we must remand this case to permit the district court to supplement and re-examine the record to remove all doubt that this action should be barred by either res judicata or direct estoppel.

Vacated and remanded.

      . See Estevez v. Nabers, 5th Cir. 1955, 219 F.2d 321; 9 Wright & Miller, Federal Practice and Procedure: Civil § 2373, at 238-9.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PLUMBERS AND STEAMFITTERS LOCAL UNION NO. 100, et al., Respondents.
    No. 73-3145
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 1, 1974.
    Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., William E. Youngblood, Regional Atty., Region 16, N. L. R. B., Fort Worth, Tex., for petitioner.
    David R. Richards, Austin, Tex., for respondents.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

This case involves a petition for the enforcement of an order of the National Labor Relations Board (the Board), as authorized by § 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e) (1970). The Board found that the Respondent union had engaged in conduct violative of sections 8(b)(2) and 8(b)(1)(A) and section 8(b)(1)(B) by refusing to accept valid travel cards presented to it by members of sister locals, in contravention of the constitution and by-laws of the United Association of Plumbers and Pipefitters Industry, and by attempting to cause the discharge of members of the sister locals from the employ of the McCally Company. We conclude that there is substantial evidence disclosed by the record to support the Board’s findings and conclusions. The order will be enforced.


text:
    UNITED STATES of America, Plaintiff-Appellant, v. H. K. PORTER COMPANY, INC., et al., Defendants-Appellees.
    No. 27703.
    United States Court of Appeals, Fifth Circuit.
    March 19, 1974.
    Wayman G. Sherrer, Macon L. Weaver, U. S. Attys., Birmingham, Ala., Gary Greenberg, Carol R. Aronoff, Attys., U. S. Dept. of Justice, Equal Employment Div., Robert T. Moore, Jerris Leonard, David L. Norman, Thomas R. Ewald, David L. Rose, Asst. Attys. Gen., Dept. of Justice, Washington, D. C., for plaintiff-appellant.
    William F. Gardner, Jerome A. Cooper, Birmingham, Ala., Michael H. Gottesman, Washington, D. C., for Local 2250.
    Jack Greenberg, Norman C. Amaker, Robert Belton, New York City, Oscar W. Adams, Jr., Birmingham, Ala., Richard B. Sobol, Washington, D. C., George J. Cooper, New York City, for amici curiae.
    Before BROWN, Chief Judge, and BELL and INGRAHAM, Circuit Judges.
   PER CURIAM:

This appeal was argued to the Court at which time the Court, from the bench, indicated that major changes in the seniority and other systems at the plant were required in order to achieve compliance with Title YII of the Civil Rights Act of 1964, and defined broadly the nature of the changes so required. The Court directed the parties to confer for the purpose of providing the Court with a proposed decree accomplishing a conversion of the seniority system to one based upon plant seniority and making such other changes as the Court indicated were required, which the Court could adopt and, upon remand, instruct the district court to enter.

Thereafter, pursuant to the Court’s directions, the parties frequently conferred on this matter, including an extended further conference with the Court, in an effort to achieve a proposed decree. Those efforts have finally borne fruit, the parties having agreed that the attached decree accomplishes, in the most desirable manner, the changes which this Court indicated at oral argument were required in order to achieve compliance with Title VII. The Court has reviewed the parties’ proposed decree, and finds that it does indeed accomplish the directed changes in a proper manner.

Accordingly, the decision and decree of the district court are hereby vacated to the extent they are inconsistent with the attached, and the cause is remanded with instructions that the district court enter the attached decree.

The mandate shall issue forthwith.

[Attached decree and appendices not printed.]


author: CHAMBERS, Circuit Judge:

text:
    Robert L. McKEE, Plaintiff-Appellant, v. Charles H. TURNER, Defendant-Appellee.
    No. 71-2335.
    United States Court of Appeals, Ninth Circuit.
    Jan. 15, 1974.
    Gerald R. Pullen (argued), Portland, Or., for plaintiff-appellant.
    Sidney I. Lezak, U. S. Atty., Norman Sepenuk, Asst. U. S. Atty. (argued), Portland, Or., for defendant-appellee.
    Before CHAMBERS, BROWNING and ELY, Circuit Judges.
   OPINION

CHAMBERS, Circuit Judge:

This is much to do about nothing, but we must do it.

McKee, now a lawyer, is a former Portland policeman. Turner is an assistant United States attorney. McKee sued Turner in the state court at Portland for defamation allegedly contained in a letter written by Turner to the chief judge of the District of Oregon. McKee prayed for $150,000.00 in damages.

There was a removal to federal court because of Turner’s status, 28 U.S.C. § 1442(a)(1). There, applying Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), the district court dismissed the action.

Turner’s position is that McKee had done something improper in defending one L. R. Bagby on a narcotics charge. If a devastating ploy was intended, it failed. Bagby was convicted and sentenced to some twenty years in prison.

Turner says he was obligated under Rule 4 of the District Court to report what McKee had done in the defense of his client. (McKee was appointed under the Criminal Justice Act.)

This is what Turner reported by the letter he sent to the chief judge: Instead of asking the United States attorney for the criminal record of one Thurman, a principal witness who was to testify, McKee had used self-help for his case. McKee had gone to his old haunts —the police station—and there obtained the criminal record of Thurman to use for impeachment. There he also found state warrants unserved for Thurman. He told the Portland police that they could find Thurman and arrest him at Bagby’s federal trial. This the Portland police did after Thurman had testified. The plaint to the chief district judge was that the Portland police might have arrested Thurman before he testified or Thurman might have become aware of the waiting arms of the Portland police and all of this might have completely upset Thurman and he might have been a failure as a witness. Turner is sure McKee intended to disrupt the trial. But what might have happened never happened. So, the letter to the chief judge distills down to: McKee had malice in his heart when he suggested to the Portland police that they could perform their legal duty on the morrow.

We affirm the judgment of the district court, but on our own ground. At the opening of his oral arguments in our court, counsel for McKee, in the presence of McKee, began with a statement that the plaintiff wanted no money from Turner—he just wanted an apology from Turner. He closed with the same statement. Thus, he completely vitiated the prayer of his complaint.

We, therefore, hold that McKee’s case is de minimis, and does not present a justiciable coirfroversy. We' are not commissioned to run around getting apologies. However, to McKee we apologize for Turner. Turner made a mistake in judgment in reporting the incident to the chief judge. If, as Turner thinks, McKee had a black motive, it did no damage. If it was intended that the police would harass the state witness by arresting him before trial or terrorize him by the mere presence of the state officer, and if Turner had any real proof of such a plot, that would be different. But all Turner can say was that it might have happened.

We think that we can take judicial notice that state officers and federal officers are at their best behavior in each other’s courthouses. It is rare that they interfere in the other’s backyard, and McKee would have known this.

As it is, whatever McKee’s thoughts were, Turner has left McKee in a position where the latter can fold his arms and smugly say, “All I did was my duty as a good citizen.”

The assistant United States attorney needs to wait for a better case to report to the chief judge.

No costs will be allowed.

Affirmed.

      . Bagby’s trial was before the Honorable Alfred T. Goodwin, then a United States District Judge.

      . Thurman had pleaded guilty to a separate charge and was awaiting sentence. He was named in Bagby’s indictment as a co-conspirator but was not indicted in Bagby’s indictment.

      . At the commencement of the trial, the Portland police officer at the Federal Courthouse made contact with Turner who advised the officer to wait.

      . There was other limited distribution of the letter.

      . Cf. Northern v. Nelson, 448 F.2d 1266 (9th Cir. 1971).


author: MANSFIELD, Circuit Judge: MOORE, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Vincent PACELLI, Jr., Defendant-Appellant.
    No. 368, Docket 73-2137.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 1, 1973.
    Decided Jan. 11, 1974.

      Steven B. Duke, New Haven, Conn., for defendant-appellant.
    Paul J. Curran, U. S. Atty., S. D. N. Y. (Arthur J. Viviani, Walter J. Higgins, Jr., Peter L. Truebner, John D. Gordan III, Asst. U. S. Attys., New York City, of counsel), for appellee.
    Before MOORE, HAYS and MANSFIELD, Circuit Judges.
   MANSFIELD, Circuit Judge:

Vincent Pacelli, Jr. appeals from a judgment of conviction in the Southern District of New York, following a jury trial before Judge Charles H. Tenney on both counts of an indictment charging that Pacelli (1) had violated 18 U.S.C. § 241 (1972) by conspiring with Barry Lipsky and others unknown to deprive Patsy Parks of her right to be a witness at trial, causing her death, and (2) had violated 18 U.S.C. § 1503 (1972) by using force to impede and injure Parks who had been a grand jury witness and who had been subpoenaed to be a witness for the government in a narcotics case, 71 Cr. 614, then pending against Pacelli.

Pacelli was sentenced to life imprisonment for the § 241 offense and to a concurrent five-year term for the § 1503 offense. Because the trial judge failed to exclude certain hearsay declarations offered to prove the belief of the declarants that Pacelli was. guilty, and because the government failed to disclose to defense counsel certain statements made by its principal witness, Barry Lipsky, for use in cross-examining Lipsky, we reverse and remand for a new trial.

This ease arises out of the brutal stabbing to death on February 4, 1972, of Patsy Parks whose body—which had been burned with gasoline flames—was found a few hours later by a police officer in a desolate area of Massapequa, Long Island. On the previous evening federal narcotics agents had attempted to serve a subpoena on Parks ordering her to appear as a witness at the trial of the indictment against Pacelli, which Judge Milton Pollack had scheduled to begin on February 8, 1972. Approximately nine months earlier, on May 27, 1971, Parks had testified before a federal grand jury in the Southern District of New York about a box which a friend told her contained money and which was delivered to Vincent Pacelli, Jr. Later the grand jury returned an indictment, 71 Cr. 614, against Pacelli and three others .for violations of the federal narcotics laws.

On the evening of February 3, 1972, the federal agents seeking to serve the subpoena on Parks went to her Manhattan apartment, where they found her roommate, Patricia Quinn, who was told by them that they were looking for Parks in order to serve her with a subpoena. Upon learning shortly thereafter from Quinn of the attempted service, Parks went to a Manhattan discotheque, the Hippopotamus, where she approached Barry Lipsky, a friend of Pacelli, and told him she urgently wanted to see Pacelli about the subpoena.

Lipsky testified that he had been working for Pacelli since April 1971. After telling Parks to wait at the Hippopotamus he took a taxi to Pacelli’s apartment at 501 Pelham Road, New Rochelle, New York where he found Pacelli, his wife Beverly, Barbara Jalaba (Beverly’s sister) and Al and Ida Bracer, who were close friends of Paeelli’s. According to Lipsky, when he told Pacelli in the presence of the others that a girl named Patsy wanted to see him about a subpoena, Paeelli said: “That goddam box ... I know it’s about that goddam box. . . .” Lipsky quoted Paeelli as saying just before leaving with Lipsky to return to Manhattan, “I know what I have to do.”

Lipsky testified that the following events then occurred. Paeelli and Lip-sky drove Mrs. Pacelli’s rented car back to Manhattan. On the way they stopped at a gasoline station where Lipsky purchased four one-gallon cans of gasoline which Paeelli said he needed “to burn up the girl’s body.” Arriving at the Hippopotamus at approximately 2:00 A.M., they picked up Parks and proceeded to head'—with Paeelli driving—toward Massapequa, Long Island. During this drive Paeelli offered Parks money to go to “California or to Brazil” which Parks rejected since she said she had to stay in New York for her job and for her child. When the car, after about an hour, reached Massapequa Lipsky took the wheel at the request of Paeelli, who shifted to the back seat. Almost immediately thereafter Paeelli stabbed Parks in the throat. Parks pleaded with Paeelli not to hurt her since she was a mother, but he said, “Die, you bitch,” and stabbed her several more times in the throat until she was dead. Thereupon Paeelli told Lipsky to drive to a wooded area where they dumped Parks’ body and Lipsky set it afire after Pacelli had poured the gasoline over it.

On the way back to New Rochelle, according to Lipsky’s testimony, he and Paeelli stopped at a gas station where Lipsky threw the contents of Parks’ pocketbook away after removing the money—$20—and then at a body of water about three blocks from Pacelli’s apartment where Lipsky threw into the water the knife which had been used to murder Parks. Lipsky spent the night at Pacelli’s apartment and awoke during the morning of the 4th to hear Pacelli’s wife and sister-in-law complaining about the work they had to do to clean blood from the rented car. Later that day Paeelli, his wife and sister-in-law, Lipsky and another friend named Abbe Perez returned the rented car to an Econo-Car agency on Westchester Avenue in the Bronx. On the evening of February 5th, Lipsky had dinner with Paeelli at a .Manhattan restaurant where Paeelli expressed satisfaction at having killed Parks since she would have testified against him at his upcoming trial for narcotics violations.

Paeelli and his co-defendants went to trial in the narcotics case before Judge Pollack on February 8th, and on February 10th Judge Pollack remanded Paeelli to jail when the prosecutor in the case advised him that Parks had been killed.

Of particular significance in the present case, in view of objections by defense counsel at trial, is Lipsky’s testimony regarding statements made by certain friends and relatives of Paeelli at a meeting on February 10th, immediately after Pacelli’s remand, which Lip-sky attended as the result of a phone call to his home from Beverly Jalaba, Pacelli’s wife who told him to meet her at the Manhattan apartment of Pacelli’s uncle and aunt, Frank and Antoinette Bassi. Lipsky was permitted to testify over objection that when he arrived at the Bassis’ apartment Beverly took him aside and told him that Parks’ body had been found and Paeelli had been put in jail. Also present at the apartment were Beverly’s sister Barbara Jalaba, the Bassis, Pacelli’s sister Loretta, A1 Bracer, Abbe Perez, and a man named Bayron. Lip-sky testified that “Frank Bassi was saying that there is a million places to put a body and you don’t have to . burn it up and leave it laying right out in the middle of nowhere for people to find.” Lipsky testified further that Abbe Perez and A1 Bracer took Lipsky aside and told him to go away for a while. Later, that night, in the presence of Pacelli’s wife, Perez gave Lipsky $1,000 for the trip.

The next day, February 11th, Lipsky went to Miami Beach, Florida. On February 16th, A1 Bracer again rented the same car which Pacelli’s group had returned to Econo-Car on February 4th. Two days . later the car was found in flames in New Jersey but a chemical analysis was able to determine that traces of blood were present on the rug located on the right front passenger side of the car. On March 2, 1972, Lipsky was arrested by Nassau County authorities when he returned from Florida. He confessed that he had been present during the murder of Parks but insisted that Pacelli had actually carried out the murder. After his confession Lipsky was indicted for murder by the State of New York. On March 7, 1972, Pacelli’s New Rochelle apartment was searched pursuant to a warrant and among the items seized were several coats similar to the one which Lipsky claimed Pacelli wore on the night of the murder. One of these coats had traces of blood on it. On March 13, 1972, a knife was recovered from the water at the Cameron Boat Rental Company of New Rochelle, which was two blocks from Pacelli’s apartment.

Shortly after his arrest by Nassau County authorities, Lipsky began talking with federal narcotics agents about Pacelli’s narcotics operations. As a result three new indictments were returned against Pacelli: 72 Cr. 664 on June 5, 1972; 72 Cr. 1319 on December 4, 1972; 73 Cr. 441 on April 16, 1973. In June 1972 Pacelli was convicted on 72 Cr. 664 solely on Lipsky’s testimony and in December 1972 Pacelli was tried on 72 Cr. 1319. During cross-examination of Lip-sky, defense counsel produced tape recordings of conversations between Lip-sky, his attorney, and members of the United States Attorney’s staff, which occurred in March and April 1972, during which Lipsky was promised immunity on any and all matters concerning which he would provide evidence to the federal authorities. Since Lipsky had perjuriousiy denied in his testimony in the trial of both narcotics charges (72 Cr. 664, 72 Cr. 1319) that he had received any consideration for his testimony, the conviction in 72 Cr. 664 was vacated and a mistrial was declared in 72 Cr. 1319. A few days later, on December 22, 1972, Lipsky wrote a four-page letter to Robert Morvillo, who was then Chief of the Criminal Division in the United States Attorney’s office for the Southern District of New York. In it he stated among other things that he was in a “terrible mental 'state” because of the mistrial he had caused, and declared that his “main purpose for the last 9% months” was to “try my very best to assist the Government,” and that he “looked forward eagerly to testifying in narcotics cases for the Government, against Vincent Pacelli Jr. and others.” (Emphasis in original)

On January 15, 1973, Lipsky entered a plea of guilty to a reduced charge of manslaughter in Nassau County. When the plea was entered a letter from the United States Attorney’s office for the Southern District of New York setting forth Lipsky’s cooperation in federal narcotics investigations and his anticipated testimony against Pacelli in the present case was read to the judge who accepted the plea. Two weeks later, on January 31, 1973, the indictment leading to this appeal was returned against Pacelli. Trial of the indictment charging Pacelli with violating 18 U.S.C. § 241 (1972) (Count I) and 18 U.S.C. § 1503 (1972) (Count II) commenced on April 30, 1973, and on June 1, 1973, after the jury had on May 3, 1973, found Pacelli guilty as charged, Judge Tenney sentenced Pacelli to a term of life imprisonment on Count I and a term of five years to be served concurrently on Count II.

Discussion

On this appeal Pacelli argues that 18 U.S.C. § 241 does not protect any federal right to be a witness at a trial and that if it does his conviction must be reversed since the trial court permitted the introduction of prejudicial hearsay when it allowed Lipsky to testify as to what Beverly Pacelli, Frank Bassi and others said to him at the Bassis’ apartment on February 10, 1973. Furthermore, Pacelli claims he was denied the right to fully cross-examine Lipsky since the government did not disclose statements made by Lipsky to the federal narcotics agents and his letter to the United States Attorney and since the trial court would not permit defense counsel to fully explore the circumstances of Lipsky’s confession to the Nassau County authorities or Lipsky’s relationship and dealings with the United States Attorney’s office. Pacelli also raises several other objections to the sufficiency of proof under § 241 and to the conduct of the trial court and of the government’s prosecutor.

Scope of Section 241

Title 18 U.S.C. § 241 protects the free exercise of rights “secured by the Constitution or laws of the United States.” In deciding whether a right is so secured, it is not enough simply to scan the Constitution or laws to see whether the right is mentioned specifically. The Supreme Court has long made clear that certain rights are implicitly conferred by the Constitution’s establishment of a national government intended to be “paramount and supreme within its sphere of action.” In re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080 (1895); Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892). One of these is the right to testify at a federal trial in response to a request or command of a federal district court. Our federal government has a particular interest in assuring a prospective witness that he or she will be free to respond by attending the trial of a federal indictment as a witness without being prevented from doing so by threats, molestation or force. Otherwise the foundations of federal justice would be undermined. In Quarles the Court, in holding that a citizen’s right to inform federal authorities concerning violations of the internal revenue laws is secured by the Constitution even though it is not specifically mentioned in “any of the Amendments,” stated that “[t]o leave to the several states the prosecution and punishment of conspiracies to oppress citizens of the United States, in performing the duty and exercising the right of assisting to uphold and enforce the laws of the United States, would tend to defeat the independence and the supremacy of the national government.” 158 U.S. 536-537, 15 S.Ct. 961. See also Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150 (1900); Foss v. United States, 266 F. 881 (9th Cir. 1920) (right to testify as a witness is secured by Constitution or laws of the United States). This principle applies with equal force in the present case.

Appellant urges that even if the Constitution does secure to citizens a fight to testify at federal criminal trials, Congress in 1968 responded to confusion over the scope of § 241 by listing the Constitutional and statutory rights protected by the section. Congress did this, appellant contends, not by amending § 241 in any significant respect but by enacting an entirely new section, 18 U.S.C. § 245, which made it unlawful to interfere with a number of specifically listed “federally protected activities” including : voting, using government facilities, applying for employment with government agencies, serving as a petit or grand juror, and receiving federal financial assistance. Appellant says that Congress chose the extraordinary course of amendment by implication rather than outright repeal of § 241.

It is well settled that repeals (or amendments) by implication are not favored and will be given effect only upon a clear showing of Congressional intent, such as where the two statutes at issue are in irrevocable conflict or the later act unquestionably covers the entire subject of the earlier one and is obviously designed as a substitute for it. See Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 80 L.Ed. 351 (1936). No such showing is made here. This is not a case like that cited to us by appellant, United States v. Lovely, 319 F.2d 673 (4th Cir.), cert. denied, 375 U.S. 913, 84 S.Ct. 210, 11 L.Ed.2d 151 (1963), where both laws covered identical subject matter: South Carolina’s consent to the acquisition of its land by the United States for any public purpose and the procedures to be followed for the vesting of jurisdiction over the lands acquired in the United States. Here, in contrast, it is far from clear that § 245 covers the identical subject matter as § 241. Furthermore appellant concedes that § 241 outlaws conspiracies to violate the free exercise of Constitutional rights and privileges whereas § 245 is limited to specifically enumerated substantive offenses, including those committed by a single person. Compare Chase v. United States, 256 U.S. 1, 41 S.Ct. 417, 65 L.Ed. 801 (1921) with Gibson v. United States, 194 U.S. 182, 24 S.Ct. 613, 48 L.Ed. 926 (1964).

In support of his amendment by implication theory, appellant relies upon Senate Report 721 issued by the Senate Committee on the Judiciary to accompany H.R. 2516, the bill which was ultimately turned into § 245. See U.S.Code Cong, and Admin. News, 90th Cong., 2d Sess., pp. 1837, 1838 (1968). Specifically we are directed to that portion of the Report which, after referring to Justice Brennan’s suggestion in United States v. Guest, 383 U.S. 745, 786, 86 S.Ct. 1170, 1193, 16 L.Ed.2d 239 (1966), that Congress might render § 241 more effective by defining the rights encompassed by it with greater specificity, states:

“H.R. 2516 meets this need by spelling out the kinds of activity to be protected, and the bill provides an effective means of deterring and punishing forcible interference with the exercise of Federal rights. The clear language of the bill would avoid unnecessary litigation concerning coverage and would provide unmistakable warning to lawless elements not to interfere with any of these activities.”

However, if Congress had intended to restrict itself merely to defining and limiting the rights described in general terms in § 241, it knew how to accomplish that objective. It would have simply enumerated the detailed rights in § 241 itself, with appropriate restrictive language. Instead it chose to enact a separate law after receiving testimony to the effect that the proposed new statute “ . . . parallels but does not supplant those existing federal criminal statutes [18 U.S.C. 241 and 242], and undertakes to cure some of their deficiencies.” Hearings on S. 1026, etc., before the Subcommittee on Constitutional Rights of the U.S. Senate Committee on the Judiciary, 90th Cong., 1st Sess. at 312 (1967). Nor was the failure expressly to limit or repeal § 241 an oversight. Congress simultaneously amended that statute expressly to provide an increased penalty when death or bodily injury resulted from activities prohibited by the statute. It was well aware of the differing scopes of the two respective statutes.

The Congressional purpose in enacting § 245 was not to repeal § 241 but to remove any doubt as to the protection that would be extended against private interference with certain specific rights enumerated in § 245. Neither the language nor the legislative history of the new statute indicates the slightest intention to strip the national government of its existing ability under § 241 to protect such important interests as the right to remain in the official custody of a United States Marshal, Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892), to inform on violations of federal law, In re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080 (1895), to testify at proceedings held under authority of federal law, Foss v. United States, 266 F. 881 (9th Cir. 1920), to travel interstate to arrive at the seat of government, United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1965), to assemble and petition the Congress for a redress of grievances, United States v. Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588 (1875). This would have been drastic action entirely unnecessary and unrelated to the principal purpose of the Committee, which was to draft a law effectively dealing with racial violence only.

In short, we find no basis in the new statute or in its history warranting a departure from the rule against amendments by implication. Indeed it would have been an extraordinary step for Congress to repeal a 100-year old generic statute which “from original enactment through subsequent codifications was intended to deal . . . with conspiracies to interfere with ‘Federal rights, and with all Federal rights.’ ” See United States v. Price, 383 U.S. 787, 801-805, 86 S.Ct. 1152, 1161, 16 L.Ed.2d 267 (1965).

Pacelli further argues that, even assuming the applicability of § 241, the government failed to prove a violation because Parks did not want to testify. This contention borders on the frivolous. It was her unwillingness to depart from the jurisdiction and Pacelli’s own statement that “she was set to testify against him at trial” that provided his motive for his killing her.

Admission of Hearsay Evidence

Appellant next urges that it was prejudicial error on the part of the trial court to have permitted Lipsky, over defense objections, to testify as to the conduct and statements of appellant’s wife, Beverly, of his uncle, Frank Bassi, and of his friends Perez and Bracer on February 10, 1972, at the Bassis’ apartment. We agree. Since the conspiracy to violate Parks’ civil rights had terminated with her death, this proof was not admissible as declarations of a co-conspirator made in the course of a conspiracy or as evidence of acts designed to show illegal activity on the part of the conspirators themselves. See United States v. Lutwak, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1952); United States v. Costello, 352 F.2d 848 (2d Cir. 1965), vacated on other grounds, 390 U.S. 201, 88 S.Ct. 898, 19 L.Ed.2d 1033 (1968). The purpose of the evidence was to get before the jury the fact that various persons other than Lipsky, who had been closely associated with Paeelli, believed Paeelli to be guilty of having murdered Parks. Indeed the government frankly conceded this in its brief:

“The fact that Pacelli’s wife summoned Lipsky to the Bassis’ apartment is proof that she knew of his involvement with Paeelli in the murder. The fact that Pacelli’s wife, uncle, and close friends were discussing at that meeting that the murder had been bungled by leaving the body where it could easily be found—rather than that Paeelli had been remanded for something he had not done—is strongly indicative that they knew that Pacelli caused Patsy Parks’s death. . . . [T]he jury was entitled to conclude, from the close relationship to Paeelli of the persons at the February 10th meeting, that the source of their knowledge was Paeelli himself, since he was the only person besides Lipsky present at the commission of the crime.
“The additional fact that at this meeting Paeelli’s wife told Lipsky to get instructions from Bracer, who, with Perez, then told Lipsky he should go to Florida and offered him the money to do so, was clearly evidence that they knew that Lipsky had seen Paeelli kill Parks.”

Since the extra-judicial statements clearly implied knowledge and belief on the part of third person declarants not available for cross-examination as to the source of their knowledge regarding the ultimate fact in issue, i. e., whether Pacelli killed Parks, Lipsky’s testimony as to them was excludable hearsay evidence. Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949); 2 J. Wigmore, Evidence § 267 (3d ed. 1940).

In the Krulewitch case a defendant was prosecuted for inducing a woman— the complaining witness—to cross state lines for the purpose of prostitution. The complaining witness was permitted to testify at trial that several weeks after the crime had been committed defendant’s co-conspirator told her not to talk and suggested that they (defendant’s co-conspirator and the complaining witness) take the blame rather than defendant since defendant “couldn’t stand it.” The Supreme Court held that permitting the testimony was reversible error since it introduced an extra-judicial statement which “plainly implied that petitioner was guilty of the crime for which he was on trial.” The Court stated:

“The statement plainly implied that petitioner was guilty of the crime for which he was on trial. It was made in petitioner’s absence and the Government made no effort whatever to show that it was made with his authority. The testimony thus stands as an unsworn, out-of-court declaration of petitioner’s guilt. This hearsay declaration, attributed to a co-conspirator, was not made pursuant to and in furtherance of objectives of the conspiracy charged in the indictment, because if made, it was after those objectives either had failed or had been achieved.” 336 U.S. at 442, 69 S.Ct. at 718.

The admission of testimony as to the third party’s declarations in the present case violated the central purpose of the hearsay rule, which is to give litigants “an opportunity to cross-examine the persons on whom the fact finder is asked to rely.” Finman, Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence, 14 Stan.L.Rev. 682, 684 (1962). We cannot agree that the only source of the extrajudicial declarations and conduct could have been Paeelli himself. Cross-examination of the declarants, had they been produced as witnesses, might have established that the information came from Lipsky himself, from third persons, or from news media, especially since appellant had on the same day been jailed as a result of the discovery of Parks’ body.

We consider it irrelevant, under Krulewitch, that the extra-judicial statements and conduct admitted in this case may not have been intended by those involved to communicate their belief that Paeelli murdered Parks. The government concedes that if Lipsky had testified that the various declarants (Beverly Jalaba, the Bassis, Perez and Bracer) had told him at the February 10th meeting that Pacelli had admitted to them his participation in the killing of Parks, the testimony would have been inadmissible hearsay. While the danger of insincerity may be reduced where implied rather than express assertions of the third parties are involved, see Falknor, Silence as Hearsay, 48 U.Pa.L.Rev. 192, 194-95 (1940), there is the added danger of misinterpretation of the declarant’s belief. Moreover, the declarant’s opportunity and capacity for accurate perception or his sources of information remain of crucial importance. See Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L. Rev. 177, 215 (1948). Here, for instance, there is no suggestion that the declarants actually observed Pacelli commit the crimes with which he was charged. Thus their extra-judicial implied assertions have even less indicia of reliability than the implied assertion involved in Krulewitch, which was held inadmissible. Pacelli was entitled to cross-examine the third party declarants in order to test the validity of the inference—which the government sought to have the jury draw—that he had told the declarants he had killed Parks. See Finman, supra, at 689 n. 20.

As in Krulewitch the government in this case made “no effort whatever” to show that the extra-judicial statements of Pacelli’s wife, uncle and “friends” were made with his authority. Generally there must be some evidence of an agency before an alleged agent’s declarations can be received as admissions. United States v. Coppola, 479 F.2d 1153 (10th Cir. 1973) ; 4 J. Wig-more, Evidence § 1078 (Chadbourn rev. 1972). Nor is this a case where an agency might be inferred from the surrounding circumstances. See 2 J. Wigmore, Evidence § 280(2) (3d ed. 1940). Two of the four alleged declarants (Perez and Bracer) were not even related to appellant, and it is far from obvious that the statements attributed to appellant’s wife were instigated by appellant.

Lipsky’s testimony regarding the declarations of the third parties in the present case cannot be dismissed as harmless error. Without his testimony the government had no case. It relied upon him as the only eye-witness (other than Pacelli) of the murder of Parks. His credibility was of crucial importance and there were ample grounds for attacking it. He had been convicted of conspiracy to transport stolen securities. He had committed perjury on several different occasions. Indeed a prior conviction of Pacelli on a narcotics charge, which had resulted from Lipsky’s testimony, had been set aside and a mistrial declared in still another narcotics charge against Pacelli when it appeared that Lipsky had lied under oath, testifying that he had not received any consideration from the prosecutor when in fact he had been given immunity as to any matter concerning which he provided evidence against Pacelli. Lipsky, furthermore, had been a user of cocaine, with a history of psychiatric disturbances. After having been indicted for the Parks murder by the State of New York in Nassau County, he had on January 15, 1973, been permitted to plead guilty to the reduced charge of manslaughter, at which time the state court judge was furnished with a letter from the United States Attorney for the Southern District of New York attesting to Lipsky’s cooperation in federal narcotics investigations and his anticipated testimony against Pacelli in the present case.

Although the government at oral argument pointed to other evidence as corroboratory of Lipsky’s testimony, most of this proof was consistent with the defense theory that Lipsky himself had killed Parks and was now attempting to implicate Pacelli as the killer in an effort to obtain leniency for himself. Evidence that the rented car used on the night of the murder was later burned, that traces of blood were discovered in it, and that a knife was recovered from the spot where Lipsky swore that it had been thrown did not, without Lipsky’s testimony, tend to establish that Pacelli rather than Lipsky was the killer. Furthermore the traces of blood in the car and on the coat which Lipsky testified as being similar to that worn by Pacelli on the night of the murder were too minute to permit investigators to determine whether they were human blood and, if so, how old.

Against this background the conduct and extra-judicial declarations attributed to the third persons in the Bassis' apartment, which the prosecutor used in summation, assumed a more important corroboratory role than might otherwise have been the case since, in the government’s words, they were “strongly indicative that they [the third party declarants] knew that Pacelli caused Patsy Parks’s death” and “that they knew that Lipsky had seen Pacelli kill Parks” (Govt’s Brief p. 13).

Failure to Disclose Jencks Act Statements

Pacelli contends that he was denied a fair trial by reason of the government’s failure to furnish him with certain material to which he claims he was entitled under the Jencks Act, 18 U.S.C. § 3500, for cross-examination of Lipsky. Although the government did furnish to Pacelli’s counsel two statements made by Lipsky regarding the Parks murder and his grand jury testimony on that subject, it did not turn over (1) his letter of December 22, 1972, to Mr. Morvillo stating that he was in “a terrible mental state,” apologizing for his “foul-up” of the earlier narcotic trial against Pacelli because of his having perjured himself, and expressing eagerness to testify for the government against Pacelli, and (2) various statements by Lipsky to law enforcement officers regarding his involvement with Pacelli in the narcotics business. Appellant argues that the failure to do so impaired his cross-examination.

Under the Jencks Act a defendant in a federal criminal trial is entitled, after a government witness has testified on direct examination, to receive for purposes of cross-examination any “statement” of the witness in the government’s possession “which relates to the subject matter as to which the witness has testified.” 18 U.S.C. § 3500(b) (1970). We have held that the statement must at least “relate generally to the events and activities testified to” before the statement must be produced, United States v. Cardillo, 316 F.2d 606, 615 (2d Cir.), cert. denied, 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed.2d 55 (1963), and that the defense is not entitled to statements which are merely “incidental or collateral.” United States v. Birnbaum, 337 F.2d 490 (1964). On the other hand, where the government’s representations as to relevancy are challenged, the better practice is for it to make the disputed statement available to the trial judge for an in camera inspection and ruling, which will normally be upheld in the absence of a showing of abuse of discretion, see, e. g., United States v. Covello, 410 F.2d 536 (2d Cir. 1969), cert. denied, 396 U.S. 879, 90 S.Ct. 150, 24 L.Ed.2d 136, rehearing denied, 397 U.S. 929, 90 S.Ct. 897, 25 L.Ed.2d 110 (1970), rather than risk reversal of a conviction because it played its cards too close to the vest. See United States v. Borelli, 336 F.2d 376, 393 (2d Cir.), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1964).

In this case, after Lipsky had testified on direct examination, appellant’s trial counsel asked to be given whatever reports the government had concerning Lipsky’s conversations with federal narcotics agents which led to the three indictments (72 Cr. 664, 72 Cr. 1319, and 73 Cr. 441) of Pacelli for dealing in narcotics, The government refused to furnish these reports on the grounds that the conversations did not relate to the present case against Pacelli for killing Parks. It also unintentionally failed to disclose the existence of Lipsky’s letter to Morvillo, its inadvertence being attributed to the fact that with “many prosecutions involving Pacelli” there was a “breakdown in channels of communication” between the different prosecutors handling the different cases. In support of its position the government points to the fact that the Assistant United States Attorney who tried this case also tried a subsequent narcotics case, United States v. Sperling, et al., D.C., 362 F.Supp. 909, in which Pacelli was again a defendant and Lipsky a witness, where the Assistant disclosed the letter as soon as it was shown to him. After a fresh review of Lipsky’s narcotics statements the United States Attorney also forthrightly disclosed upon oral argument that the government had discovered “three short paragraphs” in two of the statements which should have been disclosed but, again due to oversight, had not been produced and turned over to appellant’s trial counsel.

Accepting the government’s assertion that these nondisclosures were inadvertent, we cannot agree with its characterization of them as “harmless error.” Although appellant’s counsel possessed an abundance of impeaching material which he exploited at trial, none of this information conveyed quite so forcefully as Lipsky’s letter to Morvillo the desperate state of Lipsky’s mind after he had caused a mistrial by perjuring himself in the previous narcotics prosecution against Pacelli. The letter, furthermore, contains a blatant lie to the effect that his perjury, which caused the mistrial, had been unintentional rather than deliberate. Appellant’s counsel would probably have sought to' make this letter the “capstone” of his attack on Lipsky’s credibility, cf. United States v. Miller, supra, and argued that it revealed a frantic— even mentally disturbed—person who was ready to tell any lie to anyone in order to save himself from a murder conviction in the state court. Denial of the opportunity to use such forceful impeaching material bearing on the credibility of the government’s key witness mandates a new trial.

Our comments with respect to the government’s failure to disclose Lip-sky’s letter do not apply to its refusal to furnish his narcotics statements. From our examination of the samples of these statements which were handed up to this court upon oral argument we are satisfied that if these samples are representative, the contents did not relate to the subject matter of Lipsky’s direct examination except for the three excerpts which the government concedes that it inadvertently failed to disclose. The mere fact that Lipsky had referred generally in his direct testimony to his employment by Pacelli in the narcotics business did not entitle his counsel to explore his earlier detailed statements on that matter, which was strictly collateral to the subject of his testimony, i. e., the circumstances surrounding the Parks murder. See United States v. Cardillo, supra.

Trial Court’s Rulings with Respect to Cross-Examination and Prosecutor’s Remarks in Summation

Since the case must be remanded we find it advisable to consider the other issues raised by Pacelli’s counsel in order to minimize such doubt or possible error as may otherwise be encountered upon a retrial.

The able and experienced trial judge acted well within his discretion in restricting certain attempted cross-examination of Lipsky. The subjects which defense counsel sought to explore had either been adequately covered (e. g., Lipsky’s prior perjury, his testimony that he had been struck by Nassau County police when interrogated, his relationship with Pácelli in the narcotics business) or were of extremely tenuous relevancy (the prosecutor’s discussions with Lipsky regarding his prior perjury).' These are areas best left to the discretion of the trial judge, who usually is best able to determine the relevancy of proffered examination on the basis of his day-to-day following of the evidence as it unfolds. See Smith v. Illinois, 390 U.S. 129, 132, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968); United States v. Mahler, 363 F.2d 673, 678 (2d Cir. 1966); United States v. Bowe, 360 F.2d 1, 14 (2d Cir. 1966).

Similarly, the cross-examination of Pacelli as to whether he had said that if anybody should ever double-cross him he would “shoot their kneecaps off,” while presenting a closer question, may well have been justified as evidence of a generic threat bearing on the issue of intent to prevent Parks from testifying against him, see I Wigmore § 102 (3d ed. 1940); United States v. Anunziato, 293 F.2d 373, 377 (2d Cir.), cert. denied, 368 U.S. 919, 82 S.Ct. 240, 7 L.Ed.2d 134 (1961), provided the government had “support for the question,” cf. United States v. Haskell, 327 F.2d 281, 284 (2d Cir.), cert. denied, 377 U.S. 945, 84 S.Ct. 1351, 12 L.Ed.2d 307 (1944), which it represents that it did.

The prosecutor’s comments on summation were well within the bounds of propriety. Pacelli’s contention that he was denied a fair trial by reason of disparaging remarks of the trial judge is not only frivolous but misleading, being based on remarks lifted out of context by his counsel on this appeal, a practice which departs from ethical standards expected of such counsel. Such mild reprimands of trial counsel as were delivered by the trial judge appear from the record, when read in context, to have been fully justified.

The judgment of conviction is reversed and the case is remanded for a new trial.

MOORE, Circuit Judge

(dissenting):

I dissent and would affirm the judgment of conviction.

The key witness for the government was Lipsky. As so frequently is the case, particularly when the crime is murder, narcotics dealing or bank robbery, the government’s witnesses are not outstanding members of the community noted for their morality and rectitude. The jury is invariably instructed, as it was here, that, in the light of all the facts brought out on examination and cross-examination, they may accept or reject any or all of the witnesses’ testimony. The opportunity to see the witness, hear his testimony and appraise its worth is fundamental to our system of criminal justice.

There were only two persons present at the scene of Parks’ murder, Pacelli and Lipsky. Lipsky recited his version of what he saw and heard. Many reasons for disbelief were advanced, amongst which were the facts that Lip-sky was a perjurer and Lipsky had been promised immunity and lenient treatment. Such a man might well be disbelieved by a jury, and for good cause. However, this jury believed him.

Of course, error can be found if the jury was influenced by improper testimony but any judge experienced in reviewing jury trials knows that every violation of text book rules of evidence does not and should not constitute reversible error. Although a doctrine of “harmless error” has been evolved by appellate courts, this is but a catchphrase for an ultimate conclusion of fact by the reviewing court. Translated into realistic terms, it means not that the appellate court knows with any degree of certainty what piece or pieces of evidence influenced any particular juror and in what way; but rather, on balance, was the evidence so strong for conviction that the appellate court is willing to substitute itself for the jury and decide that the “harmless error” evidence placed before the jury would not—or better, should not—have changed the result. In my opinion, the decision here should be made upon this theory which, in turn, calls for an analysis of the specific facts allegedly erroneously admitted.

As stated, the murder scene on February 4, 1972, was luridly described and Pacelli’s role therein presented by Lip-sky. The method of the murder, the blood in the car, the blood on the coat, Pacelli’s statement to Lipsky on February 5th of satisfaction at having killed Parks, were all properly before the jury. If the jury believed Lipsky (and it apparently did), nothing more was required.

Turning now to the “hearsay” constituting, according to the majority, reversible error, of what does this hearsay, so damaging as to require reversal, consist? On February 10th at the apartment of Frank Bassi (Pacelli’s uncle) were gathered, Bassi, Pacelli’s wife, Beverly, Beverly’s sister, Barbara, Pacelli’s sister, Loretta, three friends, A1 Bracer, Abby Perez and Barbara Jalaba, and a man named Bayron. By this time via the public press, Parks’ murder and the burning of the body had been revealed to the public at large. Frank Bassi commented about the bungling technique used in trying to dispose of the body. Lipsky was induced to go away for a while and given $1,000 by Perez for that purpose. From this the majority conclude that these “extra-judicial statements clearly implied knowledge and belief on the part of third person declarants not available for cross-examination as to the source of their knowledge regarding the ultimate fact in issue, i. e., whether Pacelli killed Parks.” However, there was no declaration that Pacelli had told them that he had killed Parks and none expressed an opinion to this effect so that any such “hearsay” problem is not before us. Thus, Lipsky’s statements of the February 10th apartment conversation added so little—and this only by way of inference—to his actual eye-witness testimony as to the events on February 4th that it does not, in my opinion, fall within the category of reversible error.

Turning to the alleged Jencks Act violation, there is no doubt that the Lip-sky-Morvillo letter revealed that Lipsky wished to go to extremes to obtain favorable prosecution and court consideration. However, this field had been adequately covered on cross-examination and the jury was well aware of the circumstances under which the testimony was given. Thus this letter did not contain the crucial ammunition for cross-examination that the appellant would have us believe.

With the majority’s conclusion and discussion of Section 241 I am in accord.

For the above reasons, I would affirm.

      . “§ 241. Conspiracy against rights of citizens

      “If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
      “If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
      “They shall be fined not more than $10,000 or imprisoned not more than ten years, or both; and if death results, they shall be subject to imprisonment for any term of years or for life.”

      . “§ 1503. Influencing or injuring officer, juror or witness generally

      “Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness, in any court of the United States or before any United States magistrate or other committing magistrate, or any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate or other committing magistrate, in the discharge of his duty, or injures any party or witness in his person or property on account of his attending or having attended such court or examination before such officer, commissioner, or other committing magistrate, or on account of his testifying or having testified to any matter pending therein, or injures any- such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.”

      . At the time of her death, Parks was separated from her husband. The couple had had one child.

      . When it first emerged from the Senate Committee on the Judiciary, H.R. 2516 applied only to deprivations of the listed federal rights which were racially motivated. See 113 Cong.Ree. 37117 (1967). It was subsequently amended after much acrimonious debate to prohibit deprivations of some federal rights which were nonracially as well as racially motivated. See 114 Cong.Ree. 4570-71 (1968).
      Appellant notes that the majority of the Senate Committee on the Judiciary rejected an alternative to H.R. 2516 proposed by Senator Ervin which would have included four enumerated rights not included in the bill which became law. One of thé rights listed in the Ervin hill and not in H.R. 2516 was the right to inform on violations of Federal Criminal Law. However, appellant’s position might be persuasive if the majority had accepted rather than rejected the Ervin proposal since the Ervin proposal—unlike the majority’s—was clearly concerned with federal rights other than Fourteenth Amendment rights. See S.Rep. 721, U.S.Code Cong. & Admin.News, 90th Cong., 2d Sess. 1968, at pp. 1854-1861 (1968) (minority views of Senator Ervin). The majority’s narrow focus on racially motivated interferences with voting or equal use of federal and state facilities (or receipt of benefits) indicates persuasively that the majority, in proposing H.R. 2516, did not intend to preempt or restrict the whole field already covered by 18 U.S.C. § 241.

      . Government’s Brief, p. 13.

      . The complaining witness’ testimony as to her conversation with the co-conspirator went as follows:
      “She asked me, she says, ‘You didn’t talk yet?’ And I says, ‘No.’ And she says, ‘Well, don’t,’ she says, ‘until we get you a lawyer.’ And then she says, ‘Be very careful what you say.’ And I can’t put it in exact words. But she said, ‘It would be better for us two girls to take the blame than Kay (the defendant) because he couldn’t stand it, he couldn’t stand to take it.’ ”

      . DiCarlo v. United States, 6 F.2d 364 (2d Cir.), cert. denied, 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 1168 (1925), where a witness was permitted to testify that the defendant’s wife asked him to secrete certain revolvers, is inapplicable here. In DiCarlo there was no hearsay objection to the witness’ testimony. The point raised at trial and argued on api>eal was that the government had failed to make any showing that the revolvers were connected with the shooting alleged in the indictment. Furthermore in DiCarlo the circumstances provided a strong basis for an inference of agency. This does not exist in the present case.

      . Upon oral argument the government stated that the Assistant U.S. Attorney who tried the ease had reviewed the statement before trial but “simply overlooked the three paragraphs . . . and never again in getting ready for trial and putting the case before the jury had occasion to go back to those statements.” However, the record discloses that the narcotics statements were repeatedly “flagged” by defense counsel, United States v. Miller, 411 F.2d 825 (2d Cir. 1969), and that the Assistant specifically represented to the trial court during trial and in response to particular inquiries by defense counsel that he would recheck the narcotics statements.

      . In his letter, Lipsky represented to Morvillo that he committed perjury in the prior case because he was “confused” by defense counsel’s questions concerning promises by the prosecutor’s office. Later, in the Sperling trial, under cross-examination based on the Morvillo letter, Lipsky admitted that his prior perjury was not caused by any confusion.

      . The letter was dated December 22, 1972. The murder charge wds not reduced to manslaughter until January 15, 1973.

      . Since argument of the appeal the United States Attorney has, with characteristic forthrightness, turned over another letter written by Lipsky, this time on December 6, 1972, to Assistant United States Attorney Gerald A. Feffer, which recently came to light in the trial of another case. Since it contains additional material that could have been useful to the defense in cross-examination of Lipsky, it serves to reinforce the conclusion already reached by us with respect to Lipsky’s December 22, 1972, letter to Mr. Morvillo.

      . Standing alone the failure to disclose the three excerpts would be harmless error.


author: MEHAFFY, Chief Judge.

text:
    TWIN CITY FEDERAL SAVINGS & LOAN ASSOCIATION, Appellee, v. TRANSAMERICA INSURANCE COMPANY, Appellant.
    No. 73-1367.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 13, 1973.
    Decided Feb. 14, 1974.
    Robert S. McKenzie, Kansas City, Mo., for appellant.
    Keith Witten, Kansas City, Mo., for appellee.

      Before MEHAFFY, Chief Judge, WEBSTER, Circuit Judge, and HARPER, Senior District Judge.

       The Honorable ROY W. HARPER, Senior District Judge, Eastern and Western Districts of Missouri, sitting by designation.

   MEHAFFY, Chief Judge.

This is a diversity action involving Missouri law brought by plaintiff Twin City Federal Savings & Loan Association against defendant Transamerica Insurance Company under a savings and loan blanket bond. The paramount issues involve: (1) the applicability of the election of remedies defense; (2) the propriety of a district court entering judgment on the basis of a statement of questions of law submitted by the parties. The district court found the election of remedies defense inapplicable and entered judgment for plaintiff on the basis of a submission by the parties of a statement of questions of law. For reasons hereinafter set forth we affirm the district court as to the inapplicability of the election of remedies defense but vacate and remand as to the judgment entered for the plaintiff on the basis of the court’s conclusions of law and findings of fact.

Because of the complexity of this case a more extensive discussion of the facts is set forth which will make for a better understanding of the issues involved.

Twin City Federal Savings & Loan Association (hereinafter “Twin City”) is a federally chartered savings and loan association that was insured under a blanket savings and loan bond issued by a predecessor company of Transamerica Insurance Company (both companies hereinafter referred to as “Transamerica”). Twin City advanced construction loan moneys to Investment Corporation of Missouri in 1961 taking as security liens on eight lots. Later that year after both the maker and assignor of the notes became insolvent, Twin City learned that there were prior liens on the eight lots. . These prior liens were subsequently foreclosed and the subject

loans made by Twin City totaling $61,120.25 never repaid.

Prior to the loans being made, Investment Corporation of Missouri submitted mortgagee interim title insurance binders to Twin City which had been issued by American Title Insurance Company (hereinafter “American Title”). When the subsequent payouts were requested, Investment Corporation of Missouri submitted disbursement memoranda to Twin City which also appeared to have been issued by American Title. Neither the title insurance binders dated December 29, 1960, nor the disbursement memoranda dated February 2, 1961, disclosed the prior existing liens. The binders were signed by Dan Hayes who had been a registered agent of American Title since April 29, 1959. The disbursement memoranda purported to update the title binders and were also signed by Dan Hayes but in a different manner in that it was not clear whether he signed as a validating officer of American Title or as an officer of Title Facilities, Inc. Title Facilities, Inc. is a title company incorporated by Dan Hayes and two others on January 18, 1961, and was at no time authorized to serve as an agent of American Title. On February 13, 1961 American Title mailed a letter of cancellation of Hayes’ license to the Insurance Commission of Missouri which became effective on the Commission's records on February 15, 1961.

Twin City mailed notice of probable loss under the savings and loan blanket bond to Transamerica on March 27, 1962 and a statement of loss totaling $170,610.25 on July 16, 1962. By letter dated March 14, 1963 Transamerica responded by letter to Twin City’s attorneys advising that in its view there was no coverage under the bond and, even if there were, United Pacific, as well as American Title, should precede them.

On September 11, 1962 Twin City filed an action against American Title by a complaint containing two counts. The first sought recovery for breach of the title insurance contract. The second count sounded in tort alleging negligence on the part of American Title in examining the title to the subject eight lots. On October 16, 1963, in response to Twin City’s request for admissions, American Title raised the question of Dan Hayes’ authority as a validating officer at the time the disbursement memoranda were executed. Twin City amended its complaint on November 15, 1963 by adding a third count which alleged that Dan Hayes was clothed with actual and apparent authority from American Title when he fraudulently misrepresented to Twin City that the eight lots were free of encumbrances. Consequently, American Title amended its answer to each of the three counts on November 26, 1963 by asserting that Twin City knew or should have known that the disbursement memoranda were not prepared by authorized agents of American Title. The parties entered into a compromise settlement with Twin City receiving $32,500.00 and the action was dismissed by order filed December 31, 1963. '

On February 7, 1963 Twin City instituted a suit against United Pacific Insurance Company under a fiscal agent’s bond which was settled on April 28, 1965 for $60,000.00. Of this amount $15,540.-00 was allocated to the losses on the loans secured by the eight lots.

Twin City then initiated this action by complaint filed April 20, 1966 seeking recovery from Transamerica under its savings and loan blanket bond for its total losses less the applicable amounts received from American Title and United Pacific. The complaint was accompanied by Twin City’s demand for a jury trial. The parties stipulated to certain facts and filed cross motions for partial summary judgment on the issue of coverage under the fraud and dishonesty insuring clause. The bond excludes from the fraud and dishonesty insuring clause any losses resulting from the nonpayment of loans. The trial court granted partial summary judgment in favor of Transamerica and Twin City appealed. The judgment was affirmed by this court on July 25, 1969 and is reported at 413 F.2d 494. Twin City continued with the action claiming a right of recovery on the basis of forgery. Transamerica raised the defense of election of remedies and the parties submitted this issue to the court on stipulation pursuant to Rule 42(b) of the Federal Rules of Civil Procedure. By memorandum and order filed April 23, 1971 the district court held that the doctrine of election of remedies was not applicable to the stipulated circumstances of this case and ordered pretrial proceedings to resume. The parties entered into further stipulations of uncontroverted facts and waiver of objections to admissibility of exhibits on the ground of lack of identification and submitted issues of law to the district court on June 23, 1971 on the basis of stipulated facts. On December 29, 1972 the district court made several findings of fact and conclusions of law and judgment was entered for Twin City in the amount of $40,226.84. Twin City’s motion to increase the judgment by $2,592.-93 for additional interest was granted. Transamerica’s motion for a new trial was denied and appeal then made to this court.

Transamerica’s arguments fall into two categories: (1) that the district court erred in ruling that Twin City had not made an election of remedies in bringing and recovering in two prior suits; and (2) that the court erred in its findings of fact, conclusions of law and disposition of the case on the basis of the issues submitted to it by stipulation.

I

The doctrine of election of remedies has long been recognized in Missouri law and is defined as follows:

“Election is simply what the term imports—a choice shown by an overt act between two or more inconsistent rights, either of which may be asserted at the will of the chooser alone. * * * The doctrine is applicable where an aggrieved party has two remedies by which he may enforce inconsistent rights growing out of the same transaction and, being cognizant of his legal rights and of such facts as will enable him to make an intelligent choice, brings his action by one of the methods. Under such circumstances, the law says he shall not thereafter adopt the alternate remedy, for a suit- or cannot pursue a remedy which predicates his ease upon one theory of right and thereafter seek a remedy inconsistent with such prior proceeding.” 18 Am.Jur., Election of Remedies, § 3, pp. 129,130.

Berger v. Mercantile Trust Co., 352 S.W.2d 644, 647 (Mo.1961).

The purpose of the doctrine of election of remedies is not to prevent recourse to any remedy, but to prevent double redress for a single wrong. 25 Am.Jur.2d Election of Remedies, § 1, p. 647 (1966).

Transamerica contends that the doctrine should apply to bar Twin City from obtaining any recovery under the forgery clause of the blanket bond. Although Transamerica argues that Twin City made an election in the American Title and United Pacific Insurance Company cases, Transamerica admits that United Pacific involved other issues. The crux of Transamerica’s argument is that Twin City’s suit against American Title rested squarely on the proposition that the disbursement memoranda were executed by an authorized agent of American Title. Therefore, Twin City should not now be permitted to assert that the disbursement memoranda were forgeries because they were not executed by an authorized agent. The district court held that the defense was inapplicable because there was no inconsistency between Twin City’s positions in the American Title suit and the present action. We agree with the district court and affirm its ruling on this issue.

The facts stated hereinabove were before the district court by stipulation when it ruled on this issue. It is obvious on the face of these facts that when Twin City amended its complaint against Transamerica to assert fraudulent misrepresentations it had become aware of American Title’s position that execution of the disbursement memoranda was not authorized. This explains the assertion in Count III which was added by the amendment that Dan Hayes was clothed with apparent authority to act as agent for American Title. Recovery from American Title on the basis of apparent authority is not inconsistent with Twin City’s present position that the disbursement memoranda were not executed by an agent with actual authority. Nor would recovery for negligence under Count II necessarily be inconsistent with Twin City’s present position. It is not disputed that the title insurance binders which failed to disclose the prior liens were validly issued. Although causation would have been a critical issue, it is not inconceivable' that American Title could have been held liable to Twin City on this basis alone, even if American Title was not responsible for any negligence with regard to the disbursement memoranda. It cannot be said that Twin City’s recovery in the compromise settlement was not on either of these bases. Consequently, the election doctrine fails to apply here for lack of the necessary element of inconsistency. See Transit Cas. Co. v. Transamerica Ins. Co., 387 F.2d 1011 (8th Cir. 1967); Davis v. Hauschild, 243 S.W.2d 956 (Mo.1951).

It is also worthy of notice that the doctrine requires that the party electing a remedy be cognizant of his legal rights and such facts as will enable him to make an intelligent choice at the time of election. In the action against American Title, Twin City did not become aware of the issue of authorized execution of the disbursement memoranda until approximately a year after the original complaint was filed.

II

During the course of the pretrial proceedings the parties submitted statements of questions of law to the district court as provided by Rule 20 of the local court rules. The court made several findings of fact and conclusions of law. The primary issue of law under submission was whether Dan Hayes had authority to execute the subject eight disbursement memoranda. It is obvious from a reading of the district court’s conclusions of law that the court correctly ascertained that this was not the decisive issue in the case, but rather the critical question was whether Hayes executed the disbursement memoranda on behalf of Title Facilities, Inc. The court found as a matter of fact that Dan Hayes did not sign the memoranda as an individual but intentionally signed in a manner to create the impression that Title Facilities, Inc. was an agent of American Title, which the court further found as a matter of fact was false and fraudulent. The court went on to conclude as a matter of law that by the manner in which Dan Hayes signed the disbursement memoranda he falsely represented that Title Facilities, Inc. was an agent of American Title- and as such constituted forgeries within the meaning of the subject blanket bond.

Transameriea argues that the court exceeded the scope of the submission in many of its findings' of fact and conclusions of law. We agree. Each of the findings of fact made by the court to which the parties had not stipulated earlier in the pretrial proceedings, and each conclusion of law drawn by the court which was not in answer to issues of law submitted to it, were made in error ; for example:

1. The court erred to the extent that it found as a matter of fact that Hayes did not sign as an individual because there were no questions of fact before the court, only issues of law which the court was requested to conclude on the basis of stipulated facts.

2. The court further erred in concluding as a matter of law that Hayes fraudulently represented Title Facilities, Inc. to be an agent of American Title by his manner of execution, inasmuch as this question was not submitted to the court and remains a question of fact for the jury.

We do not say, however, that this issue or any of the other issues of fact here involved are substantial enough to withstand a motion for summary judgment for that we do not find it necessary or appropriate to decide at this time.

Although a district court may assist through pretrial proceedings in sharpening the issues, a court may not pose the issue and then proceed to decide the same without a motion for summary judgment. Twin City argues that the district court should be deemed to have treated the submission as a motion for summary judgment. This may have been the intention of the district court, but, if so, it was error. Rule 56 provides for service of the motion for summary judgment, an opportunity for service of opposing affidavits and a hearing. Fed.R.Civ.P., Rule 56, 28 U.S. C. There is some authority for permitting a district court judge to enter summary judgment sua sponte at the conclusion of a pretrial conference when the pretrial procedures disclose the lack of a disputed issue of material fact and the facts so established indicate an unequivocal right to judgment favoring a party. Wirtz v. Young Electric Sign Co., 315 F.2d 326 (10th Cir. 1963); Green v. Kaesler-Allen Lmbr. Co., 197 Kan. 788, 420 P.2d 1019 (1966). Courts of the eighth circuit have not so viewed the summary judgment procedure but have taken a position of strict compliance with the provisions of the rule. See Parmelee v. Chicago Eye Shield Co., 157 F.2d 582 (8th Cir. 1946); Taylor v. Royal Ins. Co., 34 F.R.D. 132 (W.D.Mo. 1963).

The district court also concluded as matters of law that the word “forgery” when used in a savings and loan blanket bond includes an unauthorized signature and that intent to defraud within the meaning of a criminal statute is not a necessary element in establishing forgery under the concerned bond. These conclusions were procedurally proper because they answered questions which were submitted to the court. As to the substantive correctness of these conclusions we need not decide inasmuch as Transameriea neither raised this issue in its brief nor in oral argument before this court. Trailmobile v. Whirls, 331 U.S. 40, 50, 67 S.Ct. 982, 91 L.Ed. 1328 (1947); Pedicord v. Swenson, 431 F.2d 92, 93 (8th Cir. 1970).

Transameriea argues that the district court erred in its inclusion of prejudgment interest in the judgment entered for Twin City. Due to the disposition which we make of this case, neither this issue nor the propriety of permitting recovery for the loan commitment fees and attorneys’ fees incurred in Twin City’s collateral litigation are properly before this court.

The determination by the district court that this action is not barred by the doctrine of election of remedies is affirmed. The judgment entered for Twin City on the basis of the findings of fact and conclusions of law made in error is vacated and the cause remanded for further proceedings consistent with this opinion.

       This amount includes losses from other construction loans not here relevant.