author: J. JOSEPH SMITH, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Henry JENKINS, Appellant.
    No. 521, Docket 74-2257.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 6, 1975.
    Decided Feb. 10, 1975.

      Sheila Ginsberg, New York City (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City), for appellant.
    Y. Thomas Fryman, Jr., Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. New York, John D. Gordan, III, Asst. U. S. Atty., of counsel), for appellee.
    Before SMITH, OAKES and TIMBERS, Circuit Judges.

      . § 1708. Theft or receipt of stolen mail matter generally
      Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein; or
      Whoever steals, takes, or abstracts, or by fraud or deception obtains any letter, postal card, package, bag, or mail, or any article or thing contained therein which has been left for collection upon or adjacent to a collection box or other authorized depository of mail matter; or
      Whoever buys, receives, or conceals, or unlawfully has in his possession, any letter, postal card, package, bag, or mail, or any article or thing contained therein, which has been so stolen, taken, embezzled, or abstracted, as herein described, knowing the same to have been stolen, taken, embezzled, or abstracted—
      Shall be fined not more than $2,000 or imprisoned not more than five years, or both.

   J. JOSEPH SMITH, Circuit Judge:

Henry Jenkins seeks to upset his conviction for possession of stolen mail in the district court for the Southern District of New York. The indictment charged the defendant with 16 violations of 18 U.S.C. § 1708, one count for each of 16 checks mailed by the New York City Department of Social Services and then allegedly illegally possessed by the defendant. After one mistrial, a second jury returned a verdict of guilty on six counts. The court, Judge Lee P. Gagliardi, entered judgment on the verdict on September 11, 1974, and sentenced the defendant to concurrent six-month prison terms with a three-year probation period to follow. On appeal, Jenkins contends that Judge Gagliardi committed reversible error in three respects: the court failed to submit the issue of venue to the jury; it prohibited the jury from inferring that the negative of an incredible witness’ testimony represented the truth; and it restricted the defense’s cross-examination of a key government witness. Since we conclude that none of these grounds for reversal is meritorious, we affirm the judgment below.

At trial the prosecution relied heavily on a statement signed by Jenkins after its dictation by a postal inspector to whom (with another inspector present) Jenkins confessed his participation in a check-stealing and -cashing arrangement. According to the statement, the appellant received Social Services checks from a post office employee, brought the checks to one Vincent Cartiglia to be cashed, and then returned to the postal employee with roughly half the cash value of the checks (from which Jenkins would at that time be given his commission). The government supported the statement’s reliability with testimony by the two postal inspectors regardingj!the circumstances of its rendition. Although the defense sought to undermine the prosecution’s case by vigorous cross-examination, it produced no witnesses of its own to rebut the charges.

I. VENUE

The appellant contends that his conviction is defective because it is unsupported by a jury finding that the offense charged in fact transpired in the Southern District of New York, the judicial district in which the trial was held. At trial the defense asked the court to instruct the jury that to convict it must find beyond a reasonable doubt that venue is proper in the Southern District of New York. Quite correctly, United States v. Catalano, 491 F.2d 268, 276 (2d Cir.), cert. denied, 419 U.S. 825, 95 S.Ct. 42, 42 L.Ed.2d 48 (1974), the court refused to incorporate this burden of proof standard in its charge. Neither did the court instruct the jury, however, that the government must show proper venue by a preponderance of the evidence. Rather, the court’s only reference to the venue issue in the charge was made in passing when it read the indictment to the jurors:

“On or about the 16th day of April, 1973, in the Southern District of New York” — and for our purposes the Southern District of New York encompasses Manhattan and Bronx Counties —“Henry Jenkins, the defendant, did unlawfully, wilfully and knowingly have in his possession the contents of certain letters. . . . ”

The parties strenuously debate in their briefs whether venue is an issue for the jury or, instead, for the court. Since resolution of this question of considerable significance to the administration of justice is unnecessary to the disposition of the venue claim before us, we do not now pass upon it. This question’s purely academic interest in this context derives from two sources. First, although the court might have charged the point more clearly, it almost certainly did, in the above-quoted portion of its charge, submit the venue issue to the jury. The defendant has already received, then, the benefit of the doubt on this question. Our finding as to the adequacy of the charge on venue, it should be noted, is buttressed by the defendant’s failure to request a proper charge on venue after the court’s denial of his unfounded request for a “beyond a reasonable doubt” instruction on the issue. By neglecting to specify that the jury cannot return a guilty verdict unless it finds by a preponderance of the evidence that venue is proper, moreover, the court could only have helped the defendant: The court’s silence on burden of proof left the jury free to make the perhaps natural assumption that the government had to prove venue with the same cogency as, the jury was instructed, it must prove the other elements of the offense — i. e., by beyond a reasonable doubt. Nor can the defendant complain of the court’s equation of the Southern District with Manhattan and Bronx Counties, for the underinclusiveness of the geographic description could only have redounded to his favor.

Secondly, whether or not the court actually submitted the venue issue to the jury would not be decisive under the circumstances in any event. For the overwhelming evidence presented at trial of the commission of the crime in the Southern District would render harmless any error which may inhere in failing to submit the issue of venue to the jury. Circumstantial evidence of venue abounded: Jenkins owned a Manhattan luncheonette; Cartiglia’s meat market was also in Manhattan; Jenkins repeatedly mentioned Cartiglia and his Manhattan market in tandem; within two hours of Jenkins’ delivery of the checks to Cartiglia, the latter would return to Jenkins with the proceeds; and all the payees of the checks resided in the Bronx.

The court’s charge to the jury on venue, therefore, was almost certainly adequate. To the extent that the court may be felt to have erred in this regard, the strong evidence on the record of proper-venue requires treating any such error as harmless.

II. INFERENCES FROM FALSE TESTIMONY

The appellant also faults the court’s instruction insofar as it precluded the jurors from taking as true the negative of an incredible witness’ assertions and denials. In relevant part, the court charged:

Should you find that all or any part of a particular witness’ testimony was false, you may not of course infer that the opposite of that testimony is the truth unless there is other evidence to that effect. Any testimony rejected by you as false is no longer in the case insofar as any finding that you may make is concerned.
You will recall that I told you that an inference is a conclusion which reason or common sense leads you to draw from the facts which you find have been proved. Thus a finding of fact may not be established merely by a negative inference arising from your disbelief and rejection of any testimony.

According to Jenkins, this instruction wrongfully abetted his conviction by immunizing the two postal inspectors’ testimony from negative inference: The jury should have been free, the appellant contends, not only to disbelieve the inspectors’ testimony regarding the circumstances of the confession but also to believe the very opposite of their sworn statements.

Authority for permitting juries to draw negative inferences from disbelieved testimony indeed lies, as the appellant asserts, in Dyer v. MacDougall, 201 F.2d 265, 269 (2d Cir. 1952):

[T]he denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies.

Judge Learned Hand goes on in his Dyer opinion, however, to qualify this allowance for jury inference:

Nevertheless, although it is therefore true that in strict theory a party having the affirmative might succeed in convincing a jury of the truth of his allegations in spite of the fact that all the witnesses denied them, we think it plain that a verdict would nevertheless have to be directed against him.

Id. In effect, therefore, by proscribing a negative inference “unless there is other evidence to that effect,” the district court has simply stated the Dyer rule in the converse. Perhaps Dyer’s teaching, that a jury may infer the negative of disbelieved testimony except where that inferred lacks independent support in the evidence, may be limited to instances in which the party urging the inference bears the burden of proof. This case does not require us to decide that question, however, for the court’s compliance with Dyer is of no actual moment here: Given the government’s burden of proving guilt beyond a reasonable doubt, it is highly dubious that a jury which found guilt could simultaneously have disbelieved the government witnesses upon whose word the prosecutorial value of the defendant’s confession would rise or fall. Any deviation from Dyer, therefore, would almost certainly be unimportant under the circumstances of this case.

Finally, since the defendant failed to object in the district court to this portion of the charge, we would recognize the alleged defect in the charge only if it constituted plain error. Fed.R. Crim.P. 52(b); United States v. Clark, 475 F.2d 240, 250-51 (2d Cir. 1973). And to the extent that the court may have erred in this respect, its error was clearly not of the gravity needed to trigger the operation of the plain error exception.

The appellant has no cause for complaint in the trial court’s instruction to the jury on inferences which may permissibly be drawn from the testimony of a disbelieved witness. Any possible deficiencies in the charge in this respect are shielded from successful attack by the harmless and plain error doctrines.

III. SCOPE OF CROSS-EXAMINATION

The appellant’s third ground for reversal focuses on a ruling by the court circumscribing the defense’s cross-examination of one of the postal inspectors. The trial court curtailed inquiries into the inspector’s failure to record the confession electronically or employ any other method of memorializing the confession than that actually used. (The inspector dictated a statement ostensibly summarizing the confession, which statement the defendant then signed.) These inquiries were apparently designed to undermine simultaneously the inspector’s credibility and the confession’s inculpatory force.

An appellate court must review rulings of this sort with great deference: An abuse of discretion must be found for a ruling on the extent of cross-examination to warrant reversal. Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L.Ed. 624 (1931). In the instant case, the trial court may be charged with no such abuse, for its ruling represented a reasonable resolution of the competing needs to avoid detours in the trial and to allow the defendant a fair opportunity to present his defense. Cf., United States v. Dorfman, 470 F.2d 246, 248 (2d Cir. 1972), cert. denied, 411 U.S. 923, 93 S.Ct. 1561, 36 L.Ed.2d 317 (1973). More specifically, as the questioning shifted the trial’s focus to the presence of recording equipment in the building where the confession was rendered, the district court could quite properly have concluded that the inquiry stood to distract the jurors and consume the court’s time more than its possible value to the defense warranted — a value probably already realized in full since the defense had effectively raised the possibility that the inspectors might have memorialized the confession in a manner less open to suspicion than that employed.

The trial court acted well within its discretion in limiting the scope of the defendant’s cross-examination of a government witness. The trial below was free from reversible error in the court’s instructions to the jury on venue and permissible inferences from disbelieved testimony. We therefore affirm the conviction.

Affirmed.

      . At the first trial, two of the 16 counts were dropped on the prosecution’s motion.

      . Transcript at 212.

      . The government contends that United States v. Gillette, 189 F.2d 449 (2d Cir.), cert. denied, 342 U.S. 827, 72 S.Ct. 49, 96 L.Ed. 625 (1951), which indisputably holds that venue is a jury issue, was probably wrong when decided and, in any event, is no longer recognized as sound authority. Without rejecting the government’s position, we do note that: Gillette was decided by a unanimous and distinguished panel of this court (L. Hand, Ch. J., Swan, Frank, JJ.); subsequent cases in this circuit appear to recognize tacitly that venue is a jury issue, United States v. Catalano, supra, 491 F.2d 268 at 276; United States v. Provoo, 215 F.2d 531, 537 (2d Cir. 1954); and at least one other circuit has since joined the Gillette court in requiring submission of the venue issue to the jury, Green v. United States, 309 F.2d 852 (5th Cir. 1962).

      . From this information one might infer that the transaction transpired locally, the checks probably being delivered and cashed in Manhattan during business hours.

      . Transcript at 220.

      . Since the defendant failed to offer any evidence in his own defense, such independent support for a negative inference would almost necessarily have been lacking.


source: Caselaw Access Project

author: DANAHER, Senior Circuit Judge:

license: Public Domain

text:
    Peter F. CLARK, as President of Ice Cream Drivers and Employees Union Local 757, and Anthony Iorio, as President of Milk Drivers and Dairy Employees Union Local 680, both affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, an unincorporated association, et al., Plaintiffs-Appellees-Appellants, v. KRAFTCO CORPORATION, Defendant-Appellant-Appellee.
    Nos. 135, 414, Dockets 74-1551, 74-1605.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 15, 1974.
    Decided Feb. 6, 1975.

      John F. Cannon; New York City (Sullivan & Cromwell, New York City, of counsel), for Kraftco Corp.
    Samuel J. Cohen with whom Stanley M. Berman, New York City (Cohen, Weiss & Simon, New York City, of counsel), for Union Officers and Trustees of the Pension Fund.
    Before DANAHER, Senior Circuit Judge, and FEINBERG and MULLIGAN, Circuit Judges.

       Senior Circuit Judge of the District of Columbia Circuit, sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   DANAHER, Senior Circuit Judge:

Senior Circuit Judge Lumbard, sitting without a jury, determined after a two-day trial that the plaintiffs were entitled to recover from Kraftco Corporation (herein, Kraftco), the sum of $576,000, with interest. Suit had been brought on behalf of the Ice Cream Industry-Drivers and lee Cream Employees Unions Pension Fund (herein, Pension Fund). The parties had entered into an agreement which provided for an actuarial determination of the impact, if any, on the Pension Fund which might follow Kraftco’s termination of certain phases of its Newark operations. The precise meaning of the language of the contract had given rise to conflicting assessments of Kraft-co’s possible liability.

After full consideration of the record and of the claims and briefs of the parties, we are satisfied that the plaintiffs are entitled to prevail. Accordingly, the judgment of the district court is reversed, and we remand with directions that judgment be entered in behalf of the Pension Fund for recovery from Kraftco of $978,100, with interest.

For an understanding of the background of the relationships between the respective parties, we may note, first, that a Pension Fund had been established in 1952, pursuant to Section 302 of the Labor-Management Relations Act of 1947, 29 U.S.C. Section 186. Kraftco and some 48 other employers of employees in the dairy industry were bound to make contributions to the Pension Fund as provided in the basic Trust Agreement, and also in some situations, in accordance with written collective bargaining agreements between certain employers and the Union representing their employees. Kraftco as such a participating employer had been bound under its Breyer-Newark agreement with Local 680 not to remove its ice cream manufacturing and distribution operation from the area of Local 680.

Kraftco, deeming its Breyer-Newark operation inadequate, decided to transfer the production phase to its Long Island City plant with its much greater capacity. Even though its Breyer-Newark agreement was to expire by the latter part of April, 1968, Kraftco concluded it would be good business to continue in New Jersey the distribution of its ice cream and frozen food items to be produced at its Long Island City plant. Kraftco served notice informally upon counsel for Local 680 that it intended to curtail its Newark operations, and so it initiated inquiry as to the position Local 680 might take respecting Kraftco’s contemplated transfer. Local 680 refused to respond. “Negotiations about the Newark plant were not held until after Kraftco formally withdrew from the industry-wide negotiations and brought an unfair labor practice charge against Local 680 based on its refusal to bargain on the subject.” Both Local 680 and Kraftco were represented by able and highly qualified spokesmen, quite familiar with the respective dealings of the parties over the years.

Finally on April 25, 1968, the Unions represented by their counsel and their respective presidents, met with representatives of Kraftco in New York. No representatives of Martin E. Segal & Co., Inc. (hereinafter, Segal Company), were present, although that company had long been and at the time still were actuarial consultants to the Pension Fund. Industry negotiations on a new Industry Area-Wide Agreement were going on elsewhere in the same hotel. “The industry negotiations were successfully concluded, with Kraftco as a signatory, after separate agreement was reached with the Union on the Newark closing.”

So it was that the parties entered into what came to be known as the “Breyer Agreement.” It therein was agreed that Kraftco could on and after November 2, 1968, discontinue production at Newark, and relocate its Newark distribution facilities from which to distribute ice cream and frozen food products manufactured in Long Island City. That agreement further provided a severance pay plan as to permanently terminated Newark employees. We turn now to the Agreement’s third paragraph which reads:

The consultants to the pension fund shall make an actuarial study of the impact, if any, of the discontinuance of operations and the termination of the employees upon the pension fund as of the date of the discontinuance of such operations, the cost of which shall be borne jointly by the company and the fund. If the consultants to the fund determine that the fund has been adversely affected as a result of the discontinuance of operations by the company at its Newark facility, the company agrees to pay to the fund the sums determined by the consultants. The decision of the consultants shall be final and binding on the parties. (Emphasis added.)

Some months later the “consultants to the Pension Fund” made the determination that the fund had indeed been adversely affected, and the plaintiffs made demand that Kraftco pay to the Pension Fund $978,100, the sum determined by the consultants. Upon Kraftco’s refusal to make that payment, this action was commenced pursuant to Section 301 of the Labor-Management Relations Act of 1947, 29 U.S.C. Section 185.

I

In due course the plaintiffs moved for summary judgment, filed their statement of material facts pursuant to Rule 9(g) of the District Court, and further relied upon the affidavit of their counsel who had participated in the negotiations on April 25, 1968, leading up to the Breyer Agreement. Kraftco filed its answer, denying liability and asserting by way of defense that Kraftco and the Unions had merely “attempted to express an intention that a particular actuarial study of the Pension Fund be made.” Further pleading that the plaintiffs had no claim based upon the Breyer Agreement upon which relief could be granted, Kraftco demanded judgment dismissing the complaint. Kraftco’s Response to plaintiffs’ Statement under Rule 9(g) and for its own Statement under the Rule, admitted the execution of the Breyer Agreement but insisted that it had not been nor was it intended to be a “separate and distinct contract,” but rather that the matters to which the Breyer Agreement related were regulated by other relationships between the parties, including the basic agreement and declaration of trust and the collective bargaining agreements annexed to the complaint. As for Kraftco’s “own” statement under the Rule, Kraftco asked a series of questions, the effect of which particularly was to challenge as a “proper interpretation of the intent of the parties” the plaintiffs’ claim that the Se-gal Company had been given unlimited authority to adopt whatever procedures and assumptions and to make whatever study it wished. Kraftco thus submitted that the Segal Company’s determination was to be limited and was to be predicated upon the basis of “agreed procedures and assumptions consistently used” in the past. Kraftco contended that the Breyer Agreement itself and “other pertinent documents and parol evidence prove that this was the intent of the parties.”

The extensive affidavits upon which Kraftco relied, and the then state of the record, persuaded Judge Tyler to conclude that the Breyer Agreement was ambiguous. After argument by respective counsel, Judge Tyler delivered an oral opinion reflecting his assessment of the problem and offered the parties an opportunity to produce further evidence, but respective counsel declined to do so. His opinion in Clark v. Kraftco Corporation, 323 F.Supp. 358 (S.D.N.Y. 1971), discloses the extent to which he had been impressed by Kraftco’s representations. Retaining jurisdiction of the action, on March 24, 1971, Judge Tyler denied the plaintiffs’ motion for summary judgment, ordered that the Segal Company determination be vacated, and then remanded “the issue” to the Segal Company to make the actuarial determination contemplated by the Breyer Agreement. This determination was to be attended by the formalities that accompany an arbitration under Article 75 of the New York Civil Practice Law and Rules. Particularly, Judge Tyler directed that the determination and report back to him

be made only by an actuary of the Segal Company and shall be consistent with the funding practice of the Pension Fund,
******
[and] ... be made in conformity with the Breyer Agreement as construed by the Court’s opinion of February 26, 1971 and in this regard consideration may be given to the affidavits and exhibits of record on this motion.
(Emphasis added.)

II

These plaintiffs thereupon appealed, only to be confronted by Kraftco’s motion to dismiss. The Union plaintiffs had insisted that the Breyer Agreement was final and binding on Kraftco. Deciding that the District Court’s order was interlocutory only, this court did not undertake to consider the basic substantive issues. Our opinion noted that Judge Tyler had simply denied summary judgment on his construction of the contract, and then had ordered that the issues be tried. Clark v. Kraftco Corporation, 447 F.2d 933 (2 CA 1971).

Ill

The case then came before Judge Lumbard. His pre-trial order noted that Kraftco had made no claim of fraud or personal misconduct in the Segal Company’s appraisal proceedings. Judge Lumbard’s opinion of February 19, 1974, reflects his consideration of three possible approaches by the Segal Company, all of which had been compiled pursuant to Judge Tyler’s order, supra. He noted that when the case was before Judge Tyler

the court held that the critical paragraph 3 of the [Breyer] agreement was ambiguous and that, according to the scope of the authority granted the actuary, any ambiguity concerning the intent of the parties was for the court to resolve. Under the doctrine of the law of the case applicable in this circuit, Judge Tyler’s holding should not now be upset unless it is contrary to the “good sense” of the court. Zdanok v. Glidden Co., 327 F.2d 944, 952 (2d Cir. 1964).

For his own part Judge Lumbard noted the contention of the plaintiffs that the Breyer Agreement was broad but unambiguous and so came under the parol evidence rule. Evidence at trial had been accepted, in part, subject to the plaintiffs’ objection that such evidence should not have been received as having become merged into the final agreement of April 25, 1968. Without finding grounds upon which to set aside Judge Tyler’s previous holding and order, Judge Lumbard concluded “on the basis of the actuary’s [Segal Company’s redetermination] report of August 27, 1973, and on the other evidence at trial relating to the testimony before the actuary, that paragraph 3 of the Breyer Agreement” [emphasis added] was indeed ambiguous, as Judge Tyler had held. He thus overruled the plaintiffs’ objection to the admission of such evidence even though the Segal Company’s report of August 27, 1973, had incorporated in its “History” much of the very sort of material that had been objected to before Judge Tyler.

That actuary’s report noted that the plaintiffs had presented no evidence but contended that the original calculation was binding. That report further recited that “the Actuary has felt himself bound by the language of the Court both in its Opinion and its Order as well as by the various arguments, affidavits, depositions, and other material submitted by both parties and the Fund Office.” Thus, evidence which plaintiff had contended throughout had improperly been offered to vary the terms of the written contract, erroneously became effective, not in terms of what the agreement objectively had said on the face of the contract, but on the basis of what Kraftco had argued subjectively it had “meant” when it signed the Breyer Agreement. One is reminded of Judge Friendly’s inquiry “What is chicken?” See Frigaliment Importing Co. v. B. N. S. International Sales Corp., 190 F.Supp. 116, 117, 121 (S.D.N.Y.1960), for a discussion of “subjective” versus “objective” intent.

Judge Lumbard’s opinion discloses his realization that

even though all employers contributed the same amount per employee hour, some employers stood at a relative advantage to others in that their employees received benefits in greater portion than the assumed normal benefit level of the Fund. It was the employers’ decision, however, that these relative cost advantages to some should be overlooked in view of the overall cost savings in a multi-employer plan.

His opinion, id., 85 LRRM at 3084-3035, analyzes each of the three plans submitted in the Segal Company’s redetermination report. He saw that Kraftco’s figures and assumptions would have resulted in a contribution deficit of only $135,100 by ignoring the relative cost advantage which had accrued to Kraftco in the past. On this theory, remaining contributors to the Fund would have been picking up an element of Kraftco’s cost over the future years of the Fund’s operation. Judge Lumbard rejected both the Segal Company’s first calculation, as did Judge Tyler, and the Kraftco-sponsored approach.

The actuary’s third possible method of calculation, Judge Lumbard found, included reimbursement to the Fund for the added cost occasioned by the loss of Kraftco’s anticipated contributions. Without our detailing all component data, we note Judge Lumbard’s conclusion that the third method of calculation resulted in a contribution deficit of $576,700. That approach was what Judge Lumbard decided had been

the one intended by the parties to the Breyer agreement and that by entering into the agreement Kraftco [had] obligated itself to defray any additional cost placed on the Fund participants by the Newark closing; but without forfeiting its own relative cost advantage due to the original decision to pool employee experience.

Our reading of the Breyer Agreement discloses that these parties agreed that the consultants to the Pension Fund were to be called upon to make an actuarial study, the cost of which was to be borne jointly by Kraftco and the Pension Fund. If those consultants were to determine that the fund had been adversely affected as a result of the discontinuance of operations by the company at Newark, Kraftco was to pay to the fund the sums determined by those consultants. Specifically, the decision of the consultants, the parties said, “shall be final and binding on the parties.” (Emphasis added.)

Those words in and of themselves would seem to mean precisely what they say. It may be said without invidious connotation, that Kraftco’s forensic device of so constructing its record that “ambiguity” purportedly could be discerned first had its “impact” (to borrow an expression) upon Judge Tyler. The conclusion he thereupon reached permeated his order that the Segal Company make a redetermination and report so as to reflect conformity with the Breyer Agreement as construed by Judge Tyler. The Segal Company was directed to take into consideration the affidavits and exhibits of record already before the judge. So it was that we find the Segal Company’s redetermination report of August 27, 1973, had taken account of the arguments, affidavits, depositions, and other material previously part of the record before Judge Tyler. Thus, only because of evidence that entered the record by virtue of a purportedly discerned ambiguity was the Segal Company’s new calculation different from the first one.

[13 Unmentioned heretofore is the fact that we have been dealing with collective bargaining agreements entered into pursuant to Section 302 of the LMRA, 29 U.S.C. Section 186. We have under inquiry a relationship, accordingly, of far greater significance than is to be attributed to an ordinary contract. Steelworkers v. Warrior & Gulf Company, 363 U.S. 574, 578-580, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). Construction of contracts in this area surely is determinable by federal law. Zdanok v. Glidden Company, 327 F.2d 944, 950 (2 CA), cert. denied 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298 (1964), citing Smith v. Evening News Ass’n, 371 U.S. 195, 199, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962).

Even where for example, there be an ambiguity with reference to an arbitrator’s exercise of his authority, his award nevertheless may be enforced. In Steelworkers v. Enterprise Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), the parties had bargained for the arbitrator’s construction, but then had refused to follow it. After the court of appeals denied enforcement of part of the arbitrator’s award, the Supreme Court reversed. The Court held that so far as an arbitrator’s decision concerns construction of a contract, courts have “no business overruling him because their interpretation of the contract is different from his.” Id. at 599, 80 S.Ct. at 1362. Thus, federal law, which leaves the parties to agree on their own enforcement mechanisms should apply here to favor the actuary’s initial determination as “final and binding.”

Here Kraftco bargained to achieve accord with the Unions for amicable termination of the Newark plant. That consent was achieved pursuant to the contract and the Breyer operation was terminated as of November 2, 1968. The Unions bargained for the preservation of their Pension Fund, and that is what the Breyer Agreement was about. That agreement specifically stated that the decision of the consultants was to be final and binding, words that hardly require research to discern their meaning. There was no fraud. There was no claim of lack of good faith. There was no suggestion that the agreement was not intended to be of binding effect, indeed the exact opposite was expressly stated. There was no effort by Kraftco to seek reformation of the contract. Kraftco even realized there would be an adverse effect upon the Fund, and had actuarial advice in advance of the agreement. Kraftco had submitted the proposed text to highly skilled attorneys whose specialty involved pensioñ funds.

Only when the “determination” as agreed had been made by the pension fund consultants does the record show a protest. “Oh, no, we did not mean that” sums up Kraftco’s position — even though the language of the Breyer Agreement specifically said that the consultant’s determination would prevail.

Judge Lumbard’s judgment is reversed. The case will be remanded for entry of judgment allowing the Pension Fund to recover from Kraftco Corporation $978,100, together with interest computed in accordance with the directions contained in Judge Lumbard’s order.

No costs or attorneys’ fees are to be allowed.

Reversed and remanded.

       The parties have stipulated that Kraftco shall be considered the appellant for all purposes.

      . Affidavit of David Campbell, Personnel Director of the Sealtest Foods Division of Kraft-co.

      . Affidavit of David Campbell, supra n. 1.

      . Order denying Motion for Summary Judgment, Clark v. Kraftco Corp., 70 Civ. 1246 (S.D.N.Y., March 24, 1971).

      . Clark v. Kraftco Corporation, 85 LRRM 3030, 3035 (1974).

      . Id., 85 LRRM at 3035.

      . Clark v. Kraftco Corporation, supra, 85 LRRM at 3033.
      Judge Lumbard, of course, had the advantage of the testimony at trial as he gleaned the background for his conclusions. Called as a witness for Kraftco, on direct examination Kraftco’s expert explained the technique applicable in the field of pension and actuarial evaluations. He testified:
      . We have to work with our clients in establishing the assumptions that we are going to use in determining the forecasts that we are going to make, assumptions as to whether the number of employees is going to expand or decrease; whether the funds are going to be able to earn a certain rate of interest; how long people are going to live. Then having worked out those areas, we apply mathematical formulae, and we make detailed mathematical calculations. So we have two problems — we have the judgment items and we have the formula application. (App. 204)

      . Id., 85 LRRM at 3034-3035.

      . Supplementing observations in his opinion, Judge Tyler’s order read, in part:
      (1) The determination by the Segal Company shall, subject to waiver by stipulation of the parties, be attended by the formalities which normally accompany an arbitration under Article 75 of the New York Civil Practice Law and Rules.
      Appendix, 98; and see Clark v. Kraftco Corporation, 323 F.Supp. 358, 363 (S.D.N.Y. 1971).

      . For greater detail respecting Judge Lumbard’s summary of each of the three approaches assessed by him, see Clark v. Kraft-co Corporation, 85 LRRM 3030, 3034-3035.


author: NEWMAN, District Judge:

text:
    UNITED STATES of America, Appellee, v. Thomas Joseph CARROLL et al., Appellants.
    Nos. 1209 to 1211, Docket 74-1138, 74-1139 and 74-1197.
    Argued July 18, 1974.
    Decided Jan. 6, 1975.

      John F. Martin, New York City (Michael P. Direnzo, New York City, and Louis F. Mascaro, Huntington, N. Y., on the brief), for appellants.
    John J. Kenney, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. for the Southern District of New York, Kenneth R. Feinberg and S. Andrew Schaffer, Asst. U. S. Attys., on the brief), for appellee.
    Before MULLIGAN and WINTER, Circuit Judges, and NEWMAN, District Judge.

       Of the United States Court of Appeals, Fourth Circuit, sitting by designation.

       Of the United States District Court, District of Connecticut, sitting by designation.

   NEWMAN, District Judge:

Thomas J. Carroll, Vincent McCloskey, and William McCloskey appeal from judgments of conviction on charges stemming from the attempted robbery of a United States mail truck. During the robbery a postal service guard aboard the truck was shot and killed, and the driver wounded. Appellants were tried before Honorable Charles M. Metzner and a jury, on a three-count indictment. Count 1 charged appellants and others with unlawfully conspiring to rob a United States mail truck and to jeopardize the lives of the postal employees in possession of the truck and its contents, in violation of 18 U.S.C. § 371. Count 2 charged the murder of the guard, in violation of 18 U.S.C. §§ 1111 and 1114. Count 3 charged the assault on and wounding of the driver, in violation of 18 U.S.C. § 2114. After a twelve-day trial appellants were found guilty on all three counts. Mandatory prison sentences of life and twenty-five years were imposed on Counts 2 and 3, respectively, and appellants were sentenced to five years imprisonment on Count 1. All sentences are to run concurrently.

The government’s case against appellants was overwhelming, and included testimony from participants in the robbery who had pled guilty to charges arising from their involvement. The defense offered no evidence. Of the many grounds of error urged in appellants’ joint brief and at argument, only a few require discussion.

Appellants complain about the jury charge in two respects. The first objection is to the instruction that the jury might find a defendant guilty of murder and assault whether or not he had actually wielded a weapon. The jury was told that to do so it must first find a defendant guilty of the conspiracy charge, and then find beyond a reasonable doubt that the substantive offenses of murder and assault had been committed in furtherance of the conspiracy by a member of the conspiracy, and that the substantive offenses were reasonably foreseeable.

The charge as given is indistinguishable from that upheld by the United States Supreme Court in Pinkerton v. United States, 328 U.S. 640, 645 n. 6, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). Pinkerton “held that a conspirator was liable for the reasonably foreseeable crimes committed by a co-conspirator in furtherance of and during the venture.” United States v. Alsondo, 486 F.2d 1339, 1346 n. 3 (2d Cir. 1973) (on petition for rehearing). Appellants incorrectly contend that a Pinkerton charge is warranted only if the substantive count includes a reference to the conspiracy statute, 18 U.S.C. § 371. United States v. Owen, 492 F.2d 1100 (5th Cir. 1974); United States v. Alsondo, supra.

Secondly, appellants challenge the refusal of the trial judge to submit to the jury lesser included offenses on the substantive counts. There is no error. A defendant is entitled to such a charge only if the evidence warrants it, United States v. Marcey, 142 U.S.App.D.C. 253, 440 F.2d 281, 285 n. 20 (1971). See Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); Fuller v. United States, 132 U.S.App.D.C. 264, 407 F.2d 1199, 1221 et seq. (1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969). On the present facts such a charge was not only unnecessary, but would have been improper. Cf. United States v. Harary, 457 F.2d 471 (2d Cir. 1972).

The government offered evidence to show that the murder was committed during an attempted felony and that the assault was committed with a dangerous weapon. See 18 U.S.C. §§ 1111, 2114. Section 1111 permits a finding of first degree murder if a person is killed during the course of an attempted felony such as robbery, and the jury was properly instructed that it could make such a finding. Since the evidence provided no basis for a conviction for a killing that did not occur in the course of an attempted felony, submitting lesser included offenses to the jury would have been improper on Count 2. Similarly, since the evidence provided no basis for a conviction for assault without a dangerous weapon, submitting a lesser included offense to the jury would have been improper on Count 3.

Appellants next complain that they were unfairly surprised by evidence of prior criminal activity, introduced to show steps taken in planning the robbery. This evidence concerned a holdup carried out to determine if the participants were qualified to handle the mail truck robbery, and two car thefts. The evidence was properly admitted to prove the conspiracy and to prove the planning of the substantive offenses. See United States v. Deaton, 381 F.2d 114 (2d Cir. 1967).

Appellants contend the trial court erred in denying their request for a bill of particulars detailing all overt acts in furtherance of the conspiracy. There is no general requirement that the government disclose in a bill of particulars all the overt acts it will prove in establishing a conspiracy charge, United States v. Iannelli, 53 F.R.D. 482 (S.D.N.Y.1971). See United States v. Anderson, 368 F.Supp. 1253, 1263 (S.D.Md.1973). Hence the broad request made by appellants was properly denied.

In this case, nondisclosure of pri- or criminal conduct provides no basis for disturbing the convictions. No specific request was made to elicit such information, nor was a continuance sought to meet such evidence when it was introduced. Moreover, evidence of the prior episodes added only slight additional weight to the overwhelming evidence of appellants’ participation in the mail truck robbery.

Vincent McCloskey claims the District Court abused its discretion when it denied a continuance requested on the eve of trial by John F. Martin, Esq., who had recently been retained by McCloskey.

The superseding indictment on which appellants were tried was filed on June 19, 1973. After a number of extended delays, December 10, 1973, was finally established as a firm trial date that was acceptable to all the parties. On December 3, while McCloskey was being represented by a court-appointed attorney— the third lawyer to appear for him in the case — Martin presented himself to the Court for the first time and indicated that McCloskey’s family had expressed an interest in retaining him. The Court’s response made clear that the substitution would be allowed, but only if it would not prevent the trial from going forward on December 10. As Judge Metzner stated:

That [substituting Martin] is perfectly all right with me, but there is one thing you must understand. The case is going to trial next Monday. . . . I will not allow last minute substitutions of attorneys to prevent the trial of this case. . . . But the one thing I want to say is, this trial will not be adjourned. And unless you are ready to go to trial next Monday then I can’t allow the representation.

Martin listened to these and similar statements of the Court, and initially refused to commit himself. Later that same day, however, he went to Judge Metzner’s chambers and said that he would proceed with the case. It was entirely proper for Judge Metzner to conclude that Martin’s representation would be on the terms the Court had so plainly expressed.

At 2:30 p.m. on December 7, Martin moved, inter alia, for a continuance, and the Court heard argument on Saturday, December 8. Martin contended that, having been retained only six days before trial, he was unable adequately to prepare McCloskey’s defense. The denial of this motion is challenged by MeCloskey.

A decision to grant or deny a continuance is a matter within the sound discretion of the trial judge; the sole requirement imposed is that the decision be reasonable. E. g., United States v. Rosenthal, 470 F.2d 837 (2d Cir. 1972), cert. denied, 412 U.S. 909, 93 S.Ct. 2298, 36 L.Ed.2d 975 (1973); United States v. Hall, 448 F.2d 114, 116 (2d Cir. 1971), cert. denied, 405 U.S. 935, 92 S.Ct. 971, 30 L.Ed.2d 810 (1972). See Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). In view of the circumstances that preceded Martin’s appearance and the explicit condition under which he was permitted to appear, we find Judge Metzner’s decision entirely reasonable.

First, we have frequently cautioned district judges to “be vigilant that requests for appointment of a new attorney on the eve of trial [do not] become a vehicle for achieving delay,” United States v. Llanes, 374 F.2d 712, 717 (2d Cir. 1967). On the facts as they appeared to the Court on December 3, it would have been quite reasonable for Judge Metzner to conclude that this last minute request for change of counsel was in substantial part an attempt by McCloskey to delay his trial. Compare Lofton v. Procunier, 487 F.2d 434 (9th Cir. 1973). Moreover, McCloskey had been afforded a reasonable, even generous, amount of time to obtain counsel of his choice before the trial date. He had known at least since November 20 that Jay' Goldberg, Esq., who was then representing him, would be unable to try the case in December and that he would need a new attorney. Cf. United States v. Hall, supra.

Secondly, the Court’s own calendar made it essential that the case be tried before January, 1974. Judge Metzner was scheduled to hear several complicated, multi-defendant trials shortly after the new year, and the Court was legitimately concerned with avoiding rescheduling those matters.

The Court was also concerned that if the trial started later than December 10 it would encroach on the Chanukah and Christmas holidays, making jury duty unnecessarily burdensome. The Court also wanted to avoid further delay because several defendants had been incarcerated since June. Judge Metzner expressed the belief that six months of pre-trial confinement was more than should be tolerated.

Finally, McCloskey fails to specify any prejudice arising from the brief interval between Martin’s late entry and the start of the trial. No claim is made that McCloskey was inadequately represented; nor is there any suggestion of what Martin might have done during the trial had he been given more time to prepare. At no point during the trial did Martin request a continuance for time to meet an unexpected development. Goldberg, who had represented McCloskey longer than his other three attorneys, had informed the Court that he would call no witnesses and that the defendant would not testify. None of the defendants presented any evidence. Martin conducted a spirited defense and engaged in extensive cross-examination of the government’s witnesses, in a case in which the evidence of guilt was overwhelming. In the absence of even a colorable claim of prejudice, the denial of a continuance was not an abuse of discretion.

Thomas Carroll and Vincent McCloskey contend they were denied their Sixth Amendment right to counsel. At the time Carroll was to be sentenced, his attorney was in the hospital; because the sentences on Counts 2 and 3 were mandatory terms of life and twenty-five years, respectively, the Court chose to impose sentence despite counsel’s absence, rather than defer sentencing until counsel was available.

Postponing Carroll’s sentencing would have been preferable, but there is no need to remand for re-sentencing. The presence of an attorney could have made no difference in the sentence imposed, cf. McClain v. Swenson, 435 F.2d 327, 332. (8th Cir. 1970), and there is no claim that Carroll was in any way prejudiced by the absence of his attorney. Compare Oliver v. Cowan, 487 F.2d 895 (6th Cir. 1973), cert. denied, 416 U.S. 975, 94 S.Ct. 2003, 40 L.Ed.2d 564 (1974). See Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967).

Vincent McCloskey’s claim derives from the fact that Donald Hopper, Esq., who initially represented Vincent until replaced by Attorney Goldberg, then represented Vincent’s brother and co-defendant William McCloskey. There was no adversity between the brothers, and no impropriety whatever in Hopper’s representation of Vincent McCloskey.

We have considered appellants’ other contentions and find them wholly without merit.

Affirmed.

      . Appellants explicitly reject the government’s characterization of the claim as one of inadequate assistance of counsel. Instead they argue only that the brief time available to Martin for preparation was inherently prejudicial.

      . It would not have been the first time that McCloskey had intentionally and improperly caused a postponement of his trial. Earlier in the proceedings he had been sent to the Bureau of Prisons medical facility at Springfield, Missouri, for a psychiatric evaluation of symptoms of apparent mental illness. While at Springfield, McCloskey admitted that the symptoms had been feigned.

      . Appellants also argue that the Court improperly forced Goldberg to withdraw from the case; that contention is not supported by the record. Goldberg himself had been responsible for substantial delays in the trial. For his convenience the trial date was postponed from September 11 to September 17. When Goldberg requested that McCloskey be examined more carefully, he did not inform the Court that he would be unavailable from October through December, although Judge Metzner concluded that Goldberg had known of this at least by September 17, and possibly as early as August 31. He did not inform the Court of this problem until November 7, two weeks after the Court had informed counsel that the trial would start on November 26. At his request the starting date was pushed further back, until December 10, on the clear understanding that no further adjournments would be granted, and subject to Goldberg’s securing the consent of all other counsel. The Court informed Goldberg that McCloskey would need other counsel if he were unable to proceed as scheduled.
      By November 13 Goldberg had not informed the Court whether the other attorneys had agreed to the delay, and Judge Metzner sent for him. Goldberg conceded that he would be unavailable on December 10, and Judge Metzner told him that McCloskey would definitely require new counsel. By November 20 neither McCloskey nor Goldberg had taken steps to secure new representation; Judge Metzner again sent for Goldberg and in the presence of McCloskey told him that McCloskey “must get another lawyer and get him immediately.” By November 27 nothing had bfeen done to comply with the Court’s instructions, and on representations that McCloskey was indigent, the Court appointed attorney Edward Panzer, who accepted the obligation to start the trial on December 10.
      In a letter to this Court after oral argument, Goldberg has submitted additional information regarding his availability to represent McCloskey. While this information provides a basis for understanding the circumstances that confronted Goldberg, the information is not alleged to have been communicated to Judge Metzner; hence the conclusion that the Judge acted well within his discretion remains undisturbed.

      . The absent attorney had submitted a letter to the Court in which he joined in all motions made by one of the other defense counsel, and Carroll himself made a motion for acquittal pro se.

      . One spurious claim is made in an effort to allege prejudice. In the course of his second representation, Hopper attempted during cross-examination to refresh the recollection of witness Terrence Myers, the member of the conspiracy who had actually shot the guard and driver, by reading a portion of a statement given to postal inspectors by Paul Crawford, another member of the conspiracy. Both Myers and Crawford had entered guilty pleas. The portion of the statement read by Hopper included a statement by Crawford that a photograph of Vincent McCloskey seemed similar to a man he had seen from a distance during the planning stages of the conspiracy. McCloskey now contends that Hopper learned of this, “identification” while representing him, and that its use prejudiced him and violated the confidentiality of the earlier attorney-client relationship.
      The record does not support the contention that Hopper learned of Crawford’s statement while representing McCloskey. Instead, the record indicates clearly that the government delivered the statement to defense counsel in compliance with 18 U.S.C. § 3500 when Crawford testified. Vincent McCloskey’s attorney referred to the statement while cross-examining Crawford, as did the prosecutor on direct. Moreover, McCloskey was not injured by the allusion to the rather uncertain photographic identification, because before Myers testified, Crawford had already made an in-court identification of McCloskey.

      . Prior to oral argument appellant Carroll submitted a letter to the Chief Judge of this Court, requesting that his trial counsel, Michael P. Direnzo, Esq., not be permitted to represent him on this appeal. He claims that important tactical decisions made by Direnzo during the trial are so clearly wrong that he was deprived of the effective assistance of counsel, and that unless he is represented on appeal by a different attorney, his claim will not be presented.
      We do not share appellant’s evaluation of his counsel’s performance. Attorney Direnzo’s conduct of Carroll’s defense must be evaluated in light of the strength of the prosecution’s case, see United States ex rel. Marcelin v. Mancusi, 462 F.2d 36 (2d Cir. 1972). After reviewing the government’s case against Carroll we conclude that Direnzo defended his client in an entirely reasonable manner.