author: WISDOM, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Louis L. SEIFFERT, Jr., Defendant-Appellant.
    No. 73-2148.
    United States Court of Appeals, Fifth Circuit.
    Oct. 4, 1974.

      David L. Perry, J. Robert McKissick, James DeAnda, Corpus Christi, Tex., for defendant-appellant.
    James R. Gough, Mary L. Sinderson, Asst. U. S. Attys., Henry J. Novak, Jr., Houston, Tex., for plaintiff-appellee.
    Before WISDOM and GOLDBERG, Circuit Judges, and LYNNE, District Judge.
   WISDOM, Circuit Judge:

The defendant-appellant, Louis L. Seiffert, Jr., was chairman of the board of First State Bank of Aransas Pass, Texas, in 1969 when the bank failed and the Federal Deposit Insurance Corporation (FDIC) liquidated the bank’s holdings. Seiffert filed voluntary petitions in bankruptcy for himself and three corporations which he controlled. On December 10, 1969, the first meeting of creditors was held before the referee in bankruptcy. The defendant testified at that meeting and on February 9, 1970, gave his deposition in connection with a claim by the FDIC on a fidelity bond. Shortly thereafter, he was indicted along with the ex-president of First State Bank, for misappropriating funds of a federally insured bank in violation of 18 U.S.C. § 656. A jury found Seiffert guilty of the offenses charged in counts 2, 3 and 4 of the indictment; mistrial was entered as to counts 1 and 5. On September 30, 1971, the trial court sentenced him to imprisonment for three years on each of the three counts, the sentences to run consecutively.

On appeal, this Court reversed the defendant’s conviction on the ground that the 1970 Amendment to section 7(a) (10) of the Bankruptcy Act, 11 U. S.C. § 25(a)(10), the immunity provision of the statute, was applicable to the defendant. We held that the defendant was entitled to both use and derivative use immunity and remanded the case for an inquiry into the source of the evidence introduced by the Government at trial. United States v. Seiffert, 5 Cir. 1972, 463 F.2d 1089.

On remand, Seiffert contended that The Honorable Owen D. Cox, who had presided at his trial, should have granted his motion for a new trial based on the allegation that Judge Cox was disqualified in that he had attended the first meeting of creditors as a private practitioner representing two of the creditors, before his appointment as a federal district judge. Seiffert also argued that the immunity provision of the Bankruptcy Act, 11 U.S.C. § 25(a)(10), applied to his deposition to certain financial and business records, and that the Government failed to establish a source independent of the immunized material for all the evidence it introduced at trial against him. On remand, Judge Cox denied the motion for a new trial but recused himself from presiding at the hearing on the source of the Government’s evidence. The Honorable Carl O. Bue, who presided at that hearing, held that the Government had not used the bankrupt’s testimony-protected by 11 U.S.C. § 25(a) (10). United States v. Seiffert, S.D.Tex.1973, 357 F.Supp. 801. We affirm.

I.

Disqualification of federal judges is governed by 28 U.S.C. § 455:

Any justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest, has been of counsel, is or has been a material witness, or is so related to or connected with any party or his attorney as to render it improper, in his opinion, for him to sit on the trial, appeal, or other proceeding therein.

“Congress made it expressly plain that it placed in the justice or judge the responsibility for making the determination ‘in his opinion’ that he should disqualify himself.” Kinnear-Weed Corp. v. Humble, 5 Cir. 1971, 441 F.2d 631, 635.

It is not contended that Judge Cox had a “substantial interest”, was “of counsel” in the sense that he represented parties in the case before him, or that he had been a material witness. The sole question is whether he abused the discretion vested in him by the statute in his determination that his entering an appearance, as a practicing lawyer, at the first meeting of creditors in a voluntary bankruptcy proceedings was not “so related to or connected with any party or his attorney as to render it improper” for him to sit in the bankrupt’s subsequent criminal trial.

After the remand, at the hearing on the motion for a new trial, Judge Cox denied the motion and explained his minimal involvement in the bankruptcy proceedings. Even on the assumptions Judge Cox was willing to make for the purpose of considering the motion (and nothing we say here is meant to imply that he had to make those assumptions), he concluded that a new trial should not be granted. He did recuse himself, however, from presiding over the inquiry into the source of the Government’s evidence.

The only suggestion of prejudice that Seiffert attributes to Judge Cox is stated in the appellant’s brief as follows:

Here we are faced with the situation of the trial judge being present when the testimony was given by [the appellant at the first meeting], observing his demeanor and forming an opinion as to the efficacy, sincerity, candidness, and even the veracity of the testimony — not in the proper confines of a court of law in his role as a disinterested, impartial United States District Judge, but as a partisan advocate representing clients whose interests are in conflict with those of the appellant-bankrupt. To expect or require anyone to put aside these intangible impressions at a future date and assume a completely disinterested role asks too much.

The appellant’s own characterization of any impressions Judge Cox might have carried away as “intangible” is apt. We have examined the transcript of the first meeting of creditors. Judge Cox did not participate in the questioning, very little of which appears related in any way to the two transactions in which the two clients he was representing were involved. He stated that he could not remember whether he had attended the afternoon session at all, and that at the trial he had no recollection even of having participated in the first meeting or any of the testimony that was given during the meeting. We are left with the assertion that Judge Cox might have acquired “intangible impressions” of the appellant’s demeanor in his testimony at the first meeting relating to matters which at best related indirectly to the transactions that were the subject matter of the indictment under which he was tried. Mere prior knowledge of some facts concerning a litigant (which Judge Cox denied having) is not in itself necessarily sufficient to require disqualification. cf. Roberson v. United States, 5 Cir. 1958, 249 F.2d 737, 741. And the impressions of the bankrupt’s demeanor and candor at the first meeting he might have obtained (but denied recalling) do not constitute a connection or relationship to a party sufficient to make it improper to sit at the trial on the merits.

The American Bar Association’s Code of Judicial Conduct, Canon 3(C)(1)(a), provides :

C. DISQUALIFICATION
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
(a) he has a personal bias or prejudice concerning a party, or personal knowledge' of disputed evi-dentiary facts concerning the proceedings ; . . .

This canon expresses the principle Mr. Justice Frankfurter stated in Public Utilities Commission v. Pollock, 1952, 343 U.S. 451, 467, 72 S.Ct. 813, 823, 96 L.Ed.2d 1068: “the administration of justice should reasonably appear to be disinterested as well as to be so in fact.” Even under that rigid standard, Judge Cox’s impartiality in the appellant’s ease cannot reasonably be questioned. He had no knowledge of disputed evidenti-ary facts, and there was no reasonable basis for inferring that he was biased or prejudiced.

II.

The first meeting of creditors in the bankruptcy proceedings involved in this case was held December 10, 1969. On February 9, 1970, Seiffert appeared in the law offices of his own counsel, in Houston, Texas, and was deposed. Also present were counsel for some of his creditors, primarily those interested in the Federal Deposit Insurance Corporation bond claim: counsel for the FDIC, counsel for the Corpus Christi State National Bank, counsel for the Capital National Bank of Austin, counsel for Bailee Corporation and Weben Industries, counsel for the trustees in bankruptcy, and the liquidator for the FDIC assigned to administer the liquidation of the bank, which had failed in September of 1969. There is no indication anywhere in the record of this case that the bankrupt’s appearance and testimony at this deposition of February 9, 1970, were otherwise than voluntary; the record does not show that he appeared under order of the court, and the Bankruptcy Act, 11 U.S.C. § 44(b), specifically preserves the right to take depositions without order of the court, under the law relating to the taking of depositions in civil litigation generally.

At the time this deposition was taken, the Bankruptcy Act, 11 U.S.C. § 25(a), provided, in part:

The bankrupt shall . . . (10) at the first meeting of his creditors, at the hearing upon objections, if any, to his discharge and at such other times as the court shall order, submit to an examination concerning the conducting of his business, the cause of his bankruptcy, his dealings with his creditors and other persons, the amount, kind, and whereabouts of his property, and, in addition, all matters which may affect the administration and settlement of his estate or the granting of his discharge; but no testimony given by him shall be offered in evidence against him in any criminal proceeding, except such testimony as may be given by him in the hearing upon objections to his discharge. . (Emphasis supplied.)

In October 1970, the italicized portion of the excerpt of 11 U.S.C. § 25(a) quoted above was amended to provide:

. but no testimony, or any evidence which is directly or indirectly derived from such testimony, given by him shall be offered in evidence against him in any criminal proceeding, except such testimony as may be given by him in the hearing upon objections to his discharge..... ( Added language italicized.)

This change was effected by the Organized Crime Control Act of 1970, 84 Stat. 926, 929. The House Report on the bill noted, “It is contemplated that the title will enable effective displacement of the privilege against self-incrimination by granting protection coextensive with the privilege; that is, protection against the use of compelled testimony directly or indirectly against the witness, in a criminal proceeding.” 1970 U.S.Code Cong. & Admin.News p. 4008. See also Comment, Kastigar v. United States: The Required Scope of Immunity, 58 Va.L.Rev. 1099 (1972); Comment, Standards for Exclusion in Immunity Cases after Kastigar and Zicarelli, 82 Yale L.J. 171 (1972). The Act affected existing provisions relating to immunity in a wide variety of statutes in addition to the Bankruptcy Act. See id. pp. 4019-4022.

Two questions concerning 11 U.S.C. § 25(a) confront us. First, does the statute apply to testimony in bankruptcy proceedings given before the effective date of the amendment? Second, does it apply here to the bankrupt’s voluntarily given deposition of February 9 in connection with the bankruptcy proceedings he had voluntarily instituted, and to documents and business records to which the trustee held title ?

The first question was answered in the affirmative by this Court in the earlier appeal when it stated :

we agree, that the amendment was effective at the time of trial and gave him [appellant] use and derivative use immunity because it was a procedural or remedial change and as such became immediately applicable to pending cases.

463 F.2d at 1091. The Second Circuit has recently declined to follow this holding giving retroactive effect to the 1970 amendment. United States v. Dornau, 2 Cir., 491 F.2d 473. Another panel of our own Court, without citing Seiffert, has also declined to apply the 1970 amendment retroactively. United States v. Goodwin, 5 Cir. 1972, 470 F.2d 893, 903-904. Ordinarily, the holding of the earlier appeal of this case would control our decision under the doctrine of law of the case. It was, of course, binding on Judge Bue, who conducted the inquiry into the source of the Government’s evidence on remand, after Judge Cox had recused himself from that task. See White v. Murtha, 5 Cir. 1967, 377 F.2d 428, 431-432. And it should be followed in later proceedings in this Court unless it is shown to be clearly erroneous and would work a manifest injustice. See Roe & Co. v. Armour & Co., 5 Cir. 1969, 414 F.2d 862, 869-870. If clear error and injustice are apparent, we undoubtedly have the power to alter the holding of the earlier appeal.

Goodwin raises substantial doubts regarding the validity of the earlier holding. See also McCarthy v. Arndstein, 1924, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158 in which Mr. Justice Brandéis, for the Court, held that immunity conferred by the Bankruptcy Act (prior to the 1970 amendment) was inadequate to preclude a claim of the Fifth Amendment privilege and inadequate to permit commitment for contempt or other means of compelling testimony,- because the immunity was not coextensive with the privilege. More recently, in Kasti-gar v. United States, 1972, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212, the Supreme Court has narrowed the required immunity by holding that a prosecution based upon the transaction may be permitted when “the evidence [the prosecution] proposes to use is derived from a legitimate source wholly independent of the compelled testimony”. Id. at 460, 92 S.Ct. at 1665, 32 L.Ed.2d 226. But that decision did not alter the state of the law prior to the 1970 amendment. It was clear that the Fifth Amendment privilege could be asserted in bankruptcy proceedings, and that the Bankruptcy Act immunity was insufficient to permit compelled testimony. That was the law when the appellant as voluntary bankrupt gave his deposition, and at no time during the course of it did he claim the privilege. There is doubt, therefore, that in the earlier appeal of this case the 1970 amendment was “procedural or remedial” and therefore “immediately applicable to pending cases,” 463 F.2d at 1091; for the Fifth Amendment privilege itself was available prior to the 1970 amendment, and that privilege is as potent a “remedy” against the evils of compelled testimony as the use and derivative use immunity that supplants it under the statutory changes. In view of the disposition we make of the other contentions, however, changing the law of the case would not alter the result we reach.

Assuming, then, that the 1970 amendment was applicable to cases pending when it was enacted, we turn to the question whether the Government discharged its burden of establishing the source of its evidence and negating that any of it was derived from the protected bankruptcy testimony. In the earlier appeal, this Court noted that “[i]f the Government can affirmatively show that it did not directly or indirectly use Seif-fert’s bankruptcy testimony as a lead to other evidence his conviction must stand.” 463 F.2d at 1092.

The opinion did not draw a distinction between testimony given at the first meeting of creditors and testimony contained in appellant’s deposition of February 9, 1970. On remand, Judge Bue, necessarily confronted with this question, concluded that the immunity provision was “inapplicable to voluntary deposition testimony given by a [voluntary] bankrupt.” 357 F.Supp. at 808. We sustain his conclusion. One who voluntarily invokes the protection of .the Bankruptcy Act reaps substantial benefits in terms of absolution from indebtedness. We think that Congress, in enacting the 1970 amendments, did not mean to augment those benefits by mitigating the impact of criminal sanctions which might be applicable to the financial transactions that necessarily become a part of the focus of the bankruptcy proceedings he himself has initiated. As Judge Bue noted, there are three occasions under the Act when some compulsion, in the form of contempt or denial of the discharge, may be brought to bear upon the bankrupt: the first meeting of creditors, the hearing upon objections to the discharge, and such other occasions as the court shall order.

The appellant argues that the February 9 deposition should be considered a continuation of the first meeting of creditors, or, alternatively, we must assume that it was taken under order of court because the Government has failed to prove that it was not. (Presumably such proof would have had to take the form of production of the docket entries or testimony of the referee, or both.) We reject both contentions.

We note, first, that the February 9 deposition should be considered a presence of the referee and, as appellant concedes, the statute itself, 11 U.S.C. §§ 91(b) and 736, requires the presence of the referee at the first meeting of creditors and by implication at any continuation of such a meeting. Moreover, that certain questions of relevancy were referred to the referee does not change the character of the deposition, any more than the certification of deposition questions in a civil suit renders the testimony given there “compelled”. Second, the February 9 session centered upon the FDIC bond claim, and it is this sort of examination, primarily in furtherance of a particular creditor’s claim, that is generally thought to be an improper occasion for a court order. See 2 Collier on Bankruptcy § 21.11.

The other contention, that we must assume the examination to have been conducted under court order, is less meritorious than the first. The record does not reveal that it was raised before Judge Bue, and, in any event, we believe that in the circumstances of this case, despite the general rule that the burden of proving the independent source of all evidence introduced is on the Government, the appellant had as ready and as easy access to the means of proof as the Government, and, having failed to introduce any evidence that the examination was other than voluntary, the assertion he makes now that it was compelled under court order must be rejected.

The February 9 deposition was neither a continuation of the first meeting of creditors nor an examination under court order. It was therefore not one of those instances provided for by the Bankruptcy Act, 11 U.S.C. § 25(a)(10), in which testimony may be compelled in exchange for the statutory immunity. It follows that that immunity does not extend to the February 9 testimony.

Nor does that immunity extend, as the appellant would have it, to certain of his books and records introduced in evidence against him at trial. When he initiated the voluntary bankruptcy proceedings, title to these books and records passed immediately by operation of law to the trustee under 11 U. S.C. § 110(a). Incriminating evidence contained within them is governed, therefore, by a wholly different principle from that governing testimony, and the bankrupt may claim no Fifth Amendment privilege with respect to such evidence, with the possible exception of special circumstances suggested below. See McCarthy v. Arndstein, 1924, 226 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158, and cases cited therein. The Supreme Court has recently reemphasized the fact that one who voluntarily initiates bankruptcy proceedings in his own behalf avails himself of a benefit provided by Congress, not a right. United States v. Kras, 1973, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626. The Court has underscored the fact that “the Fifth Amendment privilege is a personal privilege: it adheres basically to the person, not to information that may incriminate him”, in holding that a taxpayer could not invoke the privilege to prevent the production of his business and tax records that he voluntarily placed in the custody of his accountant. Couch v. United States, 1973, 409 U.S. 322, 328, 93 S.Ct. 611, 616, 34 L.Ed.2d 548, 554. In the case before us, there is no suggestion of personal testimonial compulsion directed toward Seiffert in the voluntary bankruptcy proceedings. It is doubtful whether the documentary evidence known and available to the Government at the time the FDIC began liquidating the bank, before the institution of the bankruptcy proceedings, but even if some of this evidence were derived from those proceedings, the Fifth Amendment privilege would not have been violated. We would, of course, have a different case if it were shown that compelled testimony led to the investigation of records which could take on an incriminating cast only upon analysis and assembly in a certain manner suggested by such testimony. But that is not this case. As set forth more fully below, the Government was aware of the basic contours of the transactions by which the bank was defrauded well in advance of the December 10, 1969, testimony at the first meeting of creditors, and the fact that certain negotiable instruments and the business records relating to them were part of the records to which the trustee took title does not for that reason mean that they could not be offered in evidence as proof of those transactions, as the appellant’s argument seems to imply.

As we have shown, the immunity provided by 11 U.S.C. § 25(a)(10) does not extend to the February 9 deposition nor to the business records of the bankrupt. Having thus fixed the parameters of the immunity provision to some extent, at least, we turn to the Government’s proof relating to the source of its evidence offered at trial.'

Judge Bue correctly held that the burden of proof upon the Government was to demonstrate by a preponderance of the evidence an independent source for all evidence introduced. Though ancillary to the process of proof in the criminal trial, this inquiry into the source of the Government’s evidence need not be satisfied by proof beyond a reasonable doubt. The Supreme Court has recently held in a closely analogous area that the voluntariness of a confession need be proved only by a preponderance of the evidence, not by the higher standard governing proof of the elements of an actual crime, since voluntariness is an inquiry distinct from guilt or innocence, and since “the purpose that a voluntariness hearing is designed to serve has nothing whatever to do with improving the reliability of jury verdicts”. Lego v. Twomey, 1972, 404 U.S. 477, 486, 92 S.Ct. 619, 625, 30 L. Ed.2d 618, 626.

Turning, finally, to the testimony at the hearing below regarding the source of the Government’s evidence at trial, we have no difficulty in affirming Judge Bue’s determination that the Government demonstrated by a preponderance of the evidence that its proof at trial was untainted. As he noted, all the witnesses with the exception of two were interviewed by the Federal Bureau of Investigation before the date of the first meeting of creditors. The two witnesses interviewed after that meeting were a director and the president of the failed bank of which the defendant was chairman of the board. They had of course been involved in their official capacities in approving some of the suspect transactions that led Mr. Thompson, the regional director of the FDIC, to initiate the FBI investigation of the bank failure in the first place, well in advance of the first meeting of creditors. The appellant has argued repeatedly that documentary exhibits numbered 110 through 118, introduced at trial, were derived from the deposition testimony. We have held that the immunity provision does not extend to such a voluntary deposition. Even if it did, Judge Bue’s finding that these exhibits were in the possession of the trustee in bankruptcy before the first meeting of creditors, and that the other documentary exhibits “were derived from the records of the defunct bank, which were in the possession and custody of the FDIC liquidator .... or from the various witnesses at the time they were interviewed”, would lend ample support to his conclusion that the Government had an independent source for this evidence. 357 F.Supp. 809. Moreover, Judge Bue found that the FBI agent assigned to investigate the ease had detailed discussions with the FDIC liquidator assigned to liquidate the failed bank in September and October of 1969 regarding the facts upon which each count of the indictment was based.

In short, considering the record of the trial, the testimony given in the first meeting of creditors, the transcript of the February 10 deposition, and the transcript of the hearing on remand to inquire into the source of the evidence, we must agree with Judge Bue that “[t]he conclusion is inevitable that [Seiffert’s] bankruptcy testimony was not used to search out other testimony subsequently used at the defendant’s trial”. 357 F.Supp. at 810.

. Accordingly, Judge Cox’s order denying a new trial and Judge Bue’s order affirming the conviction after the evi-dentiary hearing must be affirmed, and the cause remanded to the district court for disposition of the motion for a new trial on the basis of newly discovered evidence that has been pending during the decision of this appeal.

Affirmed and remanded.

      . “The bankrupt shall (1) attend at the first meeting of his creditors, at the hearing upon objections, if any, to his application for a discharge and at such other times as the court shall order . . . (10) at the first meeting of his creditors, at the hearing upon objections, if any, to his discharge and at such other times as the court shall order, submit to an examination concerning the conducting of his business, the cause of his bankruptcy, his dealings with his creditors and other persons, the amount, kind, and whereabouts of his property, and, in addition, all matters which may affect the administration and settlement of liis estate or the granting of his discharge; but no testimony, or any evidence which is directly or indirectly derived from such testimony, given by him shall be offered in evidence against him in any criminal proceeding, except such testimony as may be given by him in the hearing upon objections to his discharge. >>
      11 U.S.C. Supp. § 25(a)(1), (10), as amended, October 15, 1970, Pub.L. 91-452, Title II, § 207, 84 Stat. 929 (Organized Crime Control Act of 1970).

      . Judge Cox stated from the bench:
      My representation of private clients in those proceedings occurred about one year before I was sworn in as a Federal Judge. After refreshing my memory by a review of the files of the two clients which X represented ... I wish to state for the record that I did attend the morning session of the first meeting of the creditors in the bankruptcy proceedings. But I do not recall definitely whether or not I returned for the meeting after lunch. My impression is that I did not return because of the nature of the concern of my clients, which was minimal, and I thought I would be wasting my clients’ money. However, for the purpose of this matter, we will assume that I attended the entire meeting all day long.
      [One of the two clients’] interest was negligible, and after a conference with him after the first session, there was nothing further to be done in connection with his representation. . .
      For [the other client], I filed a claim asking the Trustee to abandon a certain piece of real estate in Portland, Texas, because the bankrupt estate of [one of tlie corporations involved in the bankruptcy proceedings) had no interest in it.
      At the time the immunity question . . . arose in the trial of [the appellant’s] case, and just prior to the commencement of this jury trial, I did not give any consideration as to whether or not I had participated in any part of the bankruptcy proceedings. It just never occurred to me, so at that time, I was not consciously aware, although the defendant says I should have been, of the fact that I had actually participated to some extent in the several bankruptcy proceedings, this lack of recollection may or may not be excusable. Nevertheless, the first actual recollection in this regard was when I first read the Motion of the defendant requesting that I disqualify myself.
      At the time of the Seiffert trial and now, I have no independent recollection of the testimony presented at such first meeting except ... as related to my clients. But for the purpose of this Motion, we will assume that I have a full recollection of what went on during such first meeting of the creditors.

      . Seo footnote 2.

      . We note in passing that the validity of the related provision withdrawing the statutory immunity from testimony at the hearing on objection to the discharge is suspect.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Stanford G. SCOTT, Plaintiff-Appellant, v. FLUOR OCEAN SERVICES, INC., et al., Defendants-Appellees.
    No. 74-2397
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct 4, 1974.

      Roy Maughan, Elliott W. Atkinson, Jr., Baton Rouge, La., for plaintiff-appellant.
    James A. George, Baton Rouge, La., for defendants-appellees.
    Before COLEMAN, DYER and RO-NEY, 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:

Scott, a crane operator, was injured when his foot slipped from a step as he was descending from a crane onto the deck of a barge. He sued Fluor Ocean Services, the owner-operator of the barge, alleging unseaworthiness under general maritime law and Jones Act negligence, claiming the step was too small and created a dangerous condition. The matter was submitted to the jury on interrogatories and it found that the step did not constitute an unseaworthy condition. However, the jury returned a verdict in favor of Scott based on Jones Act negligence and awarded him $130,000, less 75% because of his own contributory negligence.

These facts give rise to two basic issues on appeal: first, whether the jury’s finding of 75% contributory negligence on the part of Scott is supported by sufficient evidence; and second, whether the jury’s finding that Fluor was negligent is inconsistent with its finding that the vessel was seaworthy, and if so, whether the inconsistency warrants reversal or new trial. Because we answer the first question in the affirmative, we need not reach the second.

As the trial court stated in its order denying Scott’s motions for judgment N.O.V. or for new trial, there was positive, direct evidence that as Scott proceeded to step down onto the metal step, he was looking at and talking to a fellow employee, and simply misplaced his foot on the edge of the step, causing him to fall. Other positive testimony indicated that the step was adequate for a person paying attention to his descent. There being an evidentiary basis for the jury’s verdict as to contributory negligence, the finding will not be overturned. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946); McBride v. Loffland Brothers Company, 5 Cir. 1970, 422 F.2d 363.

Because we uphold the jury’s verdict as to contributory negligence, it is unnecessary to decide whether the findings of negligence and seaworthiness are inconsistent. Under maritime law, the comparative negligence of a plaintiff applies equally to both theories of recovery. McBride v. Loffland Brothers Company, supra at 364. In either circumstance, a plaintiff’s contributory negligence will not bar his recovery, but will reduce his damage award. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953); Canal Barge Co. v. Griffith, 5 Cir. 1973, 480 F.2d 11, rehearing and rehearing en banc denied 1973. Hence, if the jury had found the ship unseaworthy, Scott would be in no better position than he is now. His contributory negligence would serve to reduce the award in either event by 75%.

Affirmed.


author: WINTER, Circuit Judge: ALBERT V. BRYAN, Senior Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Monroe Clinton MAPLES, Appellant.
    No. 73-2064.
    United States Court of Appeals, Fourth Circuit.
    Argued April 1, 1974.
    Decided Aug. 7, 1974.
    Donald M. Tepper, Charlotte, N. C. [Court-appointed counsel] for appellant.
    David B. Sentelle, Asst. U. S. Atty. (Keith S. Snyder, U. S. Atty., on brief), for appellee.
    Before BRYAN, Senior Circuit Judge, and WINTER, and ADAMS, Circuit Judges.

       United States Circuit Judge for the Third Circuit, sitting by designation.

   WINTER, Circuit Judge:

Monroe Clinton Maples and his female co-defendant both pleaded guilty to bank robbery in violation of 18 U.S.C. § 2113(a). Defendant was sentenced to a term of fifteen years. His female co-defendant was sentenced to a term of ten years. From the record, it appears that some or all of the disparity in sentences was attributable to the fact that the co-defendant was female. Since sex, alone, is an impermissible basis for a disparity in sentence, we vacate Maples’ sentence and direct that he be resentenced.

I.

Maples and his co-defendant, Lynn Ellen Morrow, were separately indicted as principals for bank robbery in violation of 18 U.S.C. § 2113(a) and armed bank robbery in violation of 18 U.S.C. § 2113(d). A third defendant, Edward Rivers, was indicted as an aider and abettor in both counts of the Maples’ indictment. The charges against all three arose out of the armed robbery of a federally insured bank in Charlotte, North Carolina, on February 2, 1973. The sum of $10,718.00 was taken in the robbery.

Maples, who was 21, and Morrow, who was 17, pleaded guilty to simple bank robbery. Either a plea bargain was made, or the government was satisfied not to press the charges of armed bank robbery, because that charge was dropped. Rivers pleaded not guilty, was tried, convicted and sentenced to a term of twelve years, before Maples and Morrow were sentenced. The evidence indicated that Rivers was the driver of the vehicle used in the commission of the crime and that he did not enter the bank. Both Maples and Morrow were armed and entered the bank, and there was at least a suggestion that Morrow instigated commission of the crime.

When Maples was sentenced, the district court said:

Your co-defendant, Mr. Rivers, was before this Court and was tried. The evidence indicated that he was the driver of the car, that he didn’t enter the bank. I gave him twelve years. You did enter the bank and had a weapon. The Court feels compelled to give you a greater sentence than I did Mr. Rivers although he was, under the law, equally guilty. Somebody who aids and abets in the commission of a crime is equally guilty as the other principal, but so far as sentencing is concerned, the Court can certainly take that into account. Had you killed one of these employees that day, you and Mr. Rivers both would have been guilty of murder, you see. He would have been guilty of aiding and abetting. So these fellows who drive the car and think they’re not getting involved, they are getting involved.

The court then imposed a sentence of fifteen years.

The court rejected a suggestion that Morrow be sentenced under the Federal Youth Corrections Act. It imposed a sentence of ten years on her, preceded by the following colloquy:

COURT: Miss Morrow, this evidence indicates that you entered that bank and that you had a weapon, too. Is that right?
MISS MORROW: Yes, sir.
COURT: And I believe the evidence indicated that you went over to see one of these defendants and suggested the bank robbery. Did you?
MISS MORROW: I don’t knew whether he said I suggested it but I was in the bank robbery.
COURT: You were involved in it.
MISS MORROW: Yes, sir.'
COURT: Do you have a drug problem?
MISS MORROW: No, I don’t.
COURT: Well, these modern philosophies that have come forward lately about women’s liberation is such that I reckon legally I can’t make a distinction between your sentence and your co-defendants, but I’m old-fashioned enough I just don’t believe in punishing women who participate in a crime with the men on the same basis as a man. Ordinarily I think the man takes the lead and persuades the female, the woman. That may not be so; that may be old-fashioned. I’m going to give you the benefit of that although the evidence seems to indicate that might not be the case here. But because of your age and the fact that you are a woman, the Court will not incarcerate you for quite as long as I did your co-defendant.

After sentencing, Maples moved for a reduction of his sentence under Rule 35, F.R.Cr.P., but the motion was denied. Maples asked that his sentence be reduced to ten years. In colloquy with counsel at the hearing on the motion, the district court pointed out that there were factors to justify a disparity in sentence between Maples, Morrow and Rivers — their ages, and the fact that Maples had a prior record, although, as offsetting the latter, the district court stated that it took into consideration another charge pending against Morrow when Morrow was sentenced. Nevertheless, the fact is that in sentencing Morrow the district court expressly stated that her sex was a factor in the leniency of the sentence imposed on her.

II.

We disclaim the right to exercise general appellate review over sentences, but we do not doubt our authority to vacate and correct sentences imposed in violation of constitutional or statutory rights. United States v. Powell, 487 F.2d 325 (4 Cir. 1973). See also Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974), in which a sentence was vacated because not imposed in accordance with statute although general appellate review of sentences was denied. It is manifest from the statement of the district judge, in sentencing Morrow, that at least a part of the leniency shown her vis-a-vis her codefendants, was the fact that she was a woman. While a disparity of ages among co-defendants may, in a proper case, support disparate treatment in sentencing, as well as many other factors such a degree of guilt, prior record, likelihood of rehabilitation, need for deterrence, etc., in the instant case the district judge was candid in disclosing that these factors were not alone the reasons for the disparity. He expressly stated that sex was also a factor. Under current law, and absent any proof that rehabilitation or deterrence are more easily accomplished in the case of females rather than males, we deem the factor of sex an impermissible one to justify a disparity in sentences. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).

Of course, Morrow was to some degree unduly preferred because of her sex, while in Frontiero and Reed the female was unduly burdened. Theoretically, Morrow’s preference could be eradicated by increasing her sentence to place it on a parity (taking into account other factors which would support a difference) with that of Maples. But North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 27 L.Ed.2d 162 (1969), would appear to be a bar to such a remedy. However, in the context of this case, whatever is an undue preference to Morrow is necessarily an undue discrimination to Maples because he did not receive as favorable consideration as Morrow. Maples was discriminated against in part because of his sex, and his sentence, to the extent that its length depends upon this factor, is no less illegal. There were factors that would support a difference in sentence between Maples and Morrow. Thus, as the district court correctly recognized when it denied Maples’ motion to reduce his sentence to ten years, Maples is not necessarily entitled to the same sentence of ten years imposed on Morrow. Whether Maples’ sentence is the same or longer than Morrow’s sentence will depend upon the weight which the district judge, in the exercise of his discretion, places upon the differing factors, but whatever the justifiable difference between the two sentences, Maples’ sentence should not be lengthened because he is male. .

III.

Accordingly, we vacate Maples’ sentence and remand the case for resentenc-ing. We have confidence in the ability of the district judge to carry out our mandate. If, however, he prefers that the resentencing should be performed by another district judge, he may reassign the case. The object of the resentencing will, of course, be to eliminate from Maples’ term the portion of its length attributable to the fact that Maples is male.

Vacated and remanded.

ALBERT V. BRYAN, Senior Circuit Judge

(dissenting):

Somewhat startling for me, the majority opinion by-passes what has for decades been doctrine in this court, and so far not doubted by the Supreme Court. It is this:

“Sentencing is within sole province and discretion of trial judge, and unless an imposed sentence exceeds statutory maximum, or is otherwise illegal, appellate courts are without authority to act. Even if we considered the sentences in this case unduly harsh or severe, which we do not, we would be powerless to review under innumerable decisions of this and other appellate courts which have held consistently that there is no power in an appellate court to review sentence imposed, so long as it is within statutory limit. . . .” (Accents added.)
* #. * * * *
“This view is unquestionably followed by the overwhelming weight of authority, and unless or until the Congress or the Supreme Court has spoken to the contrary we are disposed to follow our established precedent.” Judge Simons in United States v. Pruitt, 341 F.2d 700, 703, 705 (4 Cir. 1965).

Almost 50 years ago the late eminent jurist, Judge John J. Parker, addressed the point for this circuit in Tincher v. United States, 11 F.2d 18, 21 (4 Cir. 1926):

“The judge who tries the case and hears the testimony is the best, as he is the sole judge of the merits, and if he acts within the boundaries prescribed by law his decision is final and unreviewable in an appellate court. . . . ”

See also, United States v. Wilson, 450 F.2d 495, 498 (4 Cir. 1971).

As late as June 26, 1974, the Supreme Court in Dorszynski v. U. S., 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 reaffirmed this tenet:

“We begin with the general proposition that once it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end.” At 431, 94 S.Ct. at 3047 (Citations omitted.)

Reciting the legislative history of the Federal Youth Corrections Act, the Court reiterated:

“The intent of Congress was in accord with long-established authority in the United States vesting the sentencing function exclusively in the trial court.
‘If there is one rule in the federal criminal practice which is firmly established, it is that the appellate court has no control over a sentence which is within the limits allowed by a statute.’ Gurrera v. United States, 40 F.2d 338, 340 (C.A.8 1930).” At 440, 94 S.Ct. at 3051. (Other citations omitted.)

However, accepting arguendo the majority’s entitlement to disregard precedent, I perceive no warrant for its decision here. Indisputably the corrections imposed were not beyond the limit of the penal statute. Next, the majority mistakenly reads the District Court’s pronouncement as resting upon sex exclusively. The opinion is so prefaced:

“Since sex, alone, is an impermissible basis for a disparity in sentence, we vacate Maples’ sentence and direct that he be resentenced.” (Emphasis added.)

To start with, the trial judge’s articulation of the girl’s sentence first and foremost pointed to her “age”. This consideration is now apparently no longer deemed of consequence. That the girl’s age was the predominant factor in fixing her sentence appears in the statements of the Court at the time of his sentencing. Counsel for Maples adverted to the difference in his sentence and hers, saying:

“I realize you took into consideration her age by putting the youthful offender status on it, but to give her a lesser sentence I believe is, first of all, not carrying out the intent of the court in making all three of them equal.”

In answer the Court, emphasizing age as the overriding consideration, said: “Mr. Tepper, do you think the Court must treat a 17-year old the same way as a 21-year old? She was 17 when the crime was committed; he’s 22 now, I assume he was 21. Yet the Court must treat a 17-year old on the same basis as a 21-year old in the commission of a crime ?”

Additionally, thereafter Maples moved for reduction of his sentence because the girl had received 10 years and another co-defendant, Edward Rivers, 12 years, but he was given 15 years for complicity in the same crime. He pressed upon the Court that “in fairness, all sentences should be the same and that his sentence should be reduced to 10 years”. In his denial the Judge remarked on Maples’ age of 21 years at the time of the bank robbery, that he “had at least one prior constitutional conviction, and had served a prison term”. Again manifesting his occupation with age, he observed that the girl “was only 17 years old at the time of offense”. He commented, too, that she “had no prior criminal record”. This was at the least a triphammer af-firmance of her age as controlling.

Refusal of the motion was “based upon the various acts committed by the respective defendants, their ages, and their prior criminal records, or lack of records, [justifying] the differences in the sentences”. (Emphasis added.) This is conclusive to me that the apportionment of the girl’s and Maples’ punishments was reckoned with legal and meet elements in mind.

Precedents cited by the majority as well as those of the appellant are not apposite here. They entailed the application of enactments fixedly differentiating between persons according to their gender. Quite obviously legislation is not comparable to a court’s judgment permissibly embodying other considerations than sex.

Finally, the decision now proposed will be but another of our intrusions upon the trial court’s sphere and prerogatives. I would affirm the District Court without qualification.


author: EDWARDS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Carl Wallace ISHAM, Defendant-Appellant.
    No. 74-1029.
    United States Court of Appeals, Sixth Circuit.
    Argued April 17, 1974.
    Decided Aug. 23, 1974.
    Robert W. Willmott, Jr., Lexington, Ky., for defendant-appellant; Charles William Arnold (Court-appointed), Lexington, Ky., on brief.

      Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., on brief, for plaintiff-appel-lee.
    Before PHILLIPS, Chief Judge, and WEICK and EDWARDS, Circuit Judges.
   EDWARDS, Circuit Judge.

Appellant was convicted of receiving and possessing a weapon after having been convicted of a felony, in violation of 18 U.S.C. App. § 1202(a)(1) (1970). Appellant received a two-year sentence following his conviction in a jury trial before the United States District Court for the Eastern District of Kentucky.

Appellant had been arrested for shoplifting in a department store in Lexington, Kentucky. Another police officer was called and the two officers were preparing to take the defendant to jail when he asked to be allowed to lock up his car in the parking lot. Appellant had already been handcuffed and when the officers took him to the car, he started to get into the vehicle, whereupon one of the officers spotted a box of .30 calibre ammunition on the front seat and asked appellant if he had a weapon that fitted the ammunition. Appellant said that he did and that it was on the back seat. Thereupon the officers entered the car and discovered a loaded carbine underneath a coat and pillow. This was the weapon which led to appellant’s conviction.

On this appeal the only issue concerns the search and seizure of the weapon. The government agrees that there was no actual consent for the seizure. The. government argues, however, that the officers had probable cause to believe that appellant was in possession of a concealed weapon, in violation of Kentucky law. The government also relies upon Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), which held that police search of a wrecked automobile belonging to a hospitalized Chicago policeman for the revolver which they thought might be there was justified by the need to protect the public from the weapon possibly falling into improper hands.

Of importance to our consideration of this case is the fact that the police approach to this car was at appellant’s request and was made with no prior thought of a search. The police knowledge of the existence of a firearm was triggered by their “plain view” of the box of ammunition and their inquiry. Thus the language employed by the opinion of the court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), is applicable:

“[W]hat the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused.” Coolidge v. New Hampshire, supra at 466, 91 S.Ct. at 2038.

We believe the search in this case is justified under the logic of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

One of the police officers described the situation confronting them:

“Q. Just go ahead and tell us what happened, if you would, Mr. Kidwell.
A. We accompanied him to the left side of the vehicle. He reached and opened the door and started to roll up the left window glass. All the windows were down on the car, and I looked and saw a box of ammunition setting on the seat — right seat. I looked around and didn’t see a gun in sight anyplace, so I asked Mr. Isham if he had a weapon that went with that ammunition.
Q. What did he say ?
A. He said, ‘Yes, I have. It’s in the back seat.’
Q. Then what happened ?
A. I pulled him back from the car. Officer Condor went to the other side —the right side of the car and pulled back a coat and throw rug and it revealed a rifle laying in the back seat.”

Appellant apparently had opened the door and was rolling up a window when the officers noticed the .30 calibre ammunition. If so, he must have had his hands handcuffed in front of him. When the officers learned that there was a gun in the car, they had reasonable grounds to seize it for their own »self-protection within the Terry rationale.

Additionally, we believe the government’s reliance upon Cady v. Dombrowski, supra, and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), is appropriate.

The police suspicion about a weapon (based on plain view of the ammunition) was, of course, turned into something more than probable cause when appellant admitted that he had a carbine covered on the back seat. Gilliam v. United States, 189 F.2d 321 (6th Cir. 1951); Petteway v. United States, 261 F.2d 53 (4th Cir. 1958). One of the policemen then informed appellant he was being arrested for carrying a concealed weapon, a felony under Kentucky law, K.R.S. 435.230. See Hampton v. Commonwealth, 257 Ky. 626, 78 S.W.2d 748 (1934).

Cady v. Dombrowski, supra, appears to hold that where police know that a weapon (particularly as here, a loaded and concealed weapon) is present in an automobile where it is vulnerable to possible theft and criminal use, police seizure of it as a public safety measure is “reasonable” under the Fourth Amendment. Chambers v. Maroney, supra, appears to hold that police are not required to guard such a vehicle until a search warrant is procured.

The judgment of the District Court is affirmed.

      . We recognize tills case was decided by a narrow majority in hotly disputed areas of Fourth Amendment law. Nonetheless, we are obliged to give it its intended effect.


author: BY THE COURT:

text:
    Robert J. SCARPA, Petitioner-Appellant, v. U. S. BOARD OF PAROLE and Walter Dunbar, Chairman et al., Respondents-Appellees.
    No. 71-1602.
    United States Court of Appeals, Fifth Circuit.
    Nov. 30, 1973.

    Robert J. Scarpa, pro se; Professor Donald Wilkes, Jr., University of Georgia School of Law, Athens, Ga., for petitioner-appellant.
    John W. Stokes, Jr., U. S. Atty., Richard H. Still, Jr., Asst. U. S. Atty., Atlanta, Ga., George S. Kopp, Jerome M. Feit, Attys., Crim. Div., Dept, of Justice, Washington, D. C., for respondents-appellees.
    Before BROWN, Chief Judge, and TUTTLE, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

       Tins order was initially issued in typewritten form without publication. Determination as to publication of this order was subsequently made on September 13, 1974.

   BY THE COURT:

The Supreme Court of the United States having vacated the judgment of this Court and remanded the cause to this Court for consideration of the question of mootness, 414 U.S. 809, 94 S.Ct. 79, 38 L.Ed.2d 44, and appellant having filed a motion suggesting that this cause is now moot because appellant was granted a parole effective October 29, 1973.

On further consideration whereof, it is now ordered and adjudged by this Court that the order of the District Court dated February 17, 1971 dismissing appellant’s complaint for failure to state a claim is hereby vacated, and this cause is remanded to the District Court with directions to enter an order dismissing appellant’s complaint as moot.


author: CELEBREZZE, Circuit Judge. PECK, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Floyd E. BURKHART, Defendant-Appellant.
    No. 74-1269.
    United States Court of Appeals, Sixth Circuit.
    Argued June 17, 1974.
    Decided Aug. 29, 1974.

      John Kennedy Lynch, Cleveland, Ohio, for defendant-appellant.
    J. Edward Friedland, Asst. U. S. Atty., Cleveland, Ohio, for plaintiff-ap-pellee; Frederick M. Coleman, U. S. Atty., Robert R. Bauer, First Asst. U. S. Atty., Cleveland, Ohio, Scott P. Cramp-ton, Asst. Atty. Gen., Dept, of Justice, Washington, D. C., on briefs.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and PECK, Circuit Judges.
   CELEBREZZE, Circuit Judge.

Appellant Floyd E. Burkhart was in-dieted on April 12, 1973, on five counts of wilfully and knowingly understating income tax due for the years 1966 through 1970, in violation of 26 U.S.C. § 7201. A jury found him not guilty on counts I, II, III and V, but convicted him on count IV, pertaining to 1969. This is a direct appeal from his conviction and sentence of ten days’ imprisonment and a $3500 fine.

The Government introduced items of unreported income from the operation of Appellant’s farm in Bucyrus, Ohio. Evidence showed that for 1969 Appellant had reported taxable income of $8,868.-51, but had not reported other taxable income of $32,261.21, resulting in an omitted tax due of $12,222.31. There was evidence that Appellant knew at the time he filed his 1969 return that it incorrectly stated his income, and there was sufficient evidence for the jury to infer that the understatement had been wilful.

Appellant makes four objections on appeal.

First, Appellant claims that in order to prove its case the Government must establish not only that Appellant received certain unreported items of income but also that Appellant actually received the amount of income that he did report. Appellant’s argument is that by not corroborating the receipt of income reported in his 1969 return, the Government failed to prove that Appellant actually received a .substantial amount of farm subsidy income which Appellant reported on his 1969 return. If farm subsidy income was $0 in 1969, rather than the amount reported, Appellant argues, the unreported income would not substantially exceed the amount reported, so that there would be no understatement of income.

Appellant’s superficially ingenious argument confuses the rule requiring corroboration of certain extrajudicial admissions with the Government’s burden in a tax evasion case. The Government must prove a substantial understatement of income. In so doing, it may take the taxpayer’s reported income as an admitted amount earned from designated sources. If it can then show that considerable additional amounts were received but not reported, it has established a prima facie case of substantial understatement. Cf. United States v. Campbell, 351 F.2d 336, 339 (2d Cir. 1965), cert. denied, 383 U.S. 907, 86 S.Ct. 884, 15 L.Ed.2d 662 (1966); United States v. Shavin, 320 F.2d 308, 311 (7th Cir.), cert. denied, 375 U.S. 944, 84 S.Ct. 349, 11 L.Ed.2d 273 (1963); United States v. Doyle, 234 F.2d 788, 794 (7th Cir.), cert. denied, 352 U.S. 893, 77 S.Ct. 132, 1 L.Ed.2d 87 (1956); United States v. Bender, 218 F.2d 869, 872 (7th Cir.), cert. denied, 349 U.S. 920, 75 S.Ct. 660, 99 L.Ed. 1253 (1955); Schuermann v. United States, 174 F.2d 397 (8th Cir.), cert. denied, 338 U.S. 831, 70 S.Ct. 69, 94 L.Ed. 505, reh. denied, 338 U.S. 881, 70 S.Ct. 156, 94 L.Ed. 541 (1949). The Government need not corroborate the receipt of income which Appellant reported on his 1969 return.

Second, Appellant argues that he was deprived of a fair trial because the prosecutor commented on Appellant’s failure to call his wife to the stand. Appellant had argued that some farm income had been unreported because he was operating the farm in a joint venture with his parents, who were entitled to the unreported income. Appellant’s wife was privy to essential conversations bearing on the credibility of his defense, and in his closing argument the prosecutor asked the jury to disbelieve the joint venture defense, partly on the basis that Appellant had not called his wife to testify. Appellant did not object to this statement.

This circuit recently outlined the requirements for allowing a prosecutor to comment on a defendant’s failure to produce certain witnesses. In United States v. Blakemore, 489 F.2d 193, 195 (6th Cir. 1973), we held that prosecutorial comment on failure to produce a witness was proper only where the witness is peculiarly within the defendant’s control and the witness’ testimony would elucidate the transaction in question. Both conditions are satisfied here, because Appellant was in control of his wife’s testimony and because her testimony would have elucidated the transactions which were the basis of Appellant’s “joint venture” defense. Furthermore, in this case Appellant injected his wife’s testimony into the . dispute. He challenged the testimony of two Government witnesses by asking whether his wife had made statements to them which would undermine their claims. Yet, he failed to call his wife to the stand to verify what he claimed she had told the witnesses. Thus, Appellant attempted to use his wife’s silence as implicit support for her statements, since the jury would assume that her testimony would support Appellant, and as implicit refutation of the Government’s witnesses. In such a circumstance, we must permit the Government to argue the contrary inference that Appellant’s failure to call his wife to the stand meant that her testimony would have damaged him. Cf. Himmelfarb v. United States, 175 F.2d 924, 951 (9th Cir. 1949). Any marital privilege that may have existed was waived when Appellant introduced his wife’s statements during cross-examina- , tion of the Government witnesses.

Third, Appellant argues that there was no proof of venue, an essential element of the case. But Appellant failed to object to venue until after the Government’s case had been completed. The objection was thereby waived. United States v. Fabric Garment Co., 262 F.2d 631 (2d Cir. 1958), cert. denied, 359 U.S. 989, 79 S.Ct. 1117, 3 L. Ed.2d 978 (1959). Furthermore, venue may be proved circumstantially, and there was sufficient circumstantial evidence to show that the 1969 tax return had been prepared in the Northern District of Ohio, a proper basis for venue. United States v. U. S. District Court, 209 F.2d 575 (6th Cir. 1954).

Appellant’s fourth objection relates to a communication between judge and jury. After deliberating for about an hour and a half, the jury sent a written note to the District Judge, stating, “If vote is not guilty, does the defendant have to pay his taxes and penalties?” The District Judge conferred with counsel and determined initially that he would answer that a not guilty verdict would have no effect on Appellant’s civil liabilities for back taxes and civil penalties. The Government objected, arguing that this was not an issue in the case. The District Court agreed and wrote this response: “The issues in this case to be considered and decided by the jury have been set forth in the Court’s instructions. The question you have raised is not in issue in this case.”

Both sides agree on the legal relationship between civil and criminal tax proceedings. A not guilty verdict in a criminal case has no effect on the Government’s ability to collect back taxes and penalties in a civil case. Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 S.Ct. 917 (1938); Heindel v. United States, 150 F.2d 493 (6th Cir. 1945). The matter of civil liability is not an issue when a jury is determining a defendant’s criminal liability for tax evasion.

Appellant argues that the jury’s question demonstrated that it believed Appellant was innocent but was unwilling to acquit him if it meant that Appellant would escape his tax liability. Another way to view the jury’s question, however, is that the jury believed Appellant was guilty as charged but was willing to excuse him ' if it was assured that he would have to pay his back taxes.

Thus, the District Judge was faced with the problem of avoiding prejudice to Appellant out of jury concerns which were extraneous to a proper finding of guilt or innocence and of not encouraging the jury to acquit Appellant for similarly irrelevant reasons. Without stating a rigid rule, we believe that the District Judge chose the proper course in this case. Rather than advising the jury about the legal effect of an acquittal on Appellant’s civil liability, he told the jurors that civil liability for back taxes was not an issue in the criminal case and that the jury should follow his instructions in determining Appellant’s innocence or guilt. We cannot find error in this response.

By not advising the jury of an acquittal’s effect on Appellant’s civil obligations, the District Court re-emphasized the jury’s obligation to uphold their oath —to follow the law in determining innocence or guilt. The jury was properly told to ignore everything but the facts presented and their legal charge in arriving at a verdict. As Mr. Justice Holmes wrote in Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53, 54, 65 L.Ed. 185 (1920):

“[T]he jury has the power to bring in a verdict in the teeth of both law and facts. But the judge always has the right and duty to tell them what the law is upon this or that state of facts that may be found. . . . ”

In our system of jury justice, the judge must state the law, though the jury is free to indulge in vagary and compromise once the case is sent to the jury room. United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 88 L.Ed. 48 (1943); Dunn v. United States, 284 U.S. 390, 394, 52 S.Ct. 189, 76 L.Ed. 356 (1932). Although the jury stands as a bulwark against laws which it deems unjust or excessively harsh, United States ex rel. Toth v. Quarles, 350 U.S. 11, 18-19, 76 S.Ct. 1, 100 L.Ed. 8 (1955); Duncan v. Louisiana, 391 U.S. 145, 155, 157, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1965), it is not the judge’s place to advise the jury of the possible collateral effects of their decision, information that has nothing to do with the legal standards which they have sworn to apply-

We come to a final consideration. Even though the District Judge’s instructions were correct and even though neither judge nor prosecutor injected an impermissible element into the case, a new trial would be necessary if we were convinced that the verdict was the direct result of a groundless fear that Appellant would escape his tax obligations unless the jury found him guilty. There is no significant indication that Appellant’s conviction rests on such a prejudiced ground. “A mere suspicion . . . that the jury has not followed the court’s instructions is not sufficient [for reversal], since that would make the verdict too vulnerable and would needlessly prolong litigation.” 6A J. Moore, Federal Practice 59-140 (1974). “That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.” Dunn v. United States, 284 U.S. 390, 394, 52 S.Ct. 189, 191, 76 L.Ed. 356 (1932).

The judgment of the District Court is affirmed.

PECK, Circuit Judge

(concurring).

I am in entire agreement with the disposition of the first three issues in the majority opinion, but have reservations concerning the fourth. In the circumstances I feel that the preferable course would have been for the trial judge to have made a direct response to the jury’s question, but concur on the ground that it was not an abuse of discretion for him to decline to do so. It is unfortunate that the colloquy between court and counsel did not occur in the presence of the Court Reporter and that' a verbatim record thereof is therefore not available for review.

      . In Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954), and United States v. Calderon, 348 U.S. 160, 75 S.Ct. 186, 99 L.Ed. 202 (1954), the Government was required in net worth cases to corroborate oral and written statements made by the defendants relating to essential elements of the cases against them.

      . If, for instance, a jury said, “We believe. Defendant X is not guilty, but we want him to pay his back taxes. If we acquit him, will he escape his obligations ?,” the trial judge would be virtually forced to purge the trial of prejudice by telling the jury that their verdict would have no effect on the Government’s ability to collect Defendant X’s back taxes.
      A standard cautionary statement might be that any civil obligations would be the subject of a separate proceeding.

      . The present law of “jury nullification” (the jury’s power to acquit a defendant out of refusal to apply the law to facts clearly evidencing a criminal violation) seems not to require or permit a judge to tell the jury that it has the right to ignore the law as charged but to allow a defense attorney some leeway in persuading the jury to acquit out of considerations of mercy or obedience to a higher law. See Scheflin, “Jury Nullification : The Right to Say No,” 45 So.Cal.L. Rev. 168 (1972) ; W. Forsyth, History of Trial by Jury 217-20 (2d ed. 1875) ; Kun-stler, “Jury Nullification in Conscience Cases,” 10 Va.J.Int’l L. 71 (1949) ; Note, “Toward Principles of Jury Equity,” 83 Yale L. J. 1023 (1974).
      Our approval of the District Judge’s response is in line with the current standards on jury nullification, under which the judge attempts to persuade the jury to apply the legal standards he charges, to the exclusion of concerns beyond those standards.


author: McALLISTER, Senior Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Paul James POSEY, Defendant-Appellant.
    No. 73-2080.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 7, 1974.
    Decided Sept. 5, 1974.

      R. Barry Wehrman, Covington, Ky., for defendant-appellant; Wehrman & Wehrman, Covington, Ky., on briefs.
    James E. Arehart, Asst. U. S. Atty., Lexington, Ky., for plaintiff-appellee; Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., on briefs.
    Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and Mc-ALLISTER, Senior Circuit Judge.
   McALLISTER, Senior Circuit Judge.

Paul James Posey appeals from a judgment of conviction, entered on a jury verdict, of violation of Title 18 U. S.C., Section 922(a)(1), which makes it a crime to carry on the business of dealing in firearms and ammunition without a license.

Appellant was the co-manager of the Club Mustang, a bar in Newport, Kentucky, along with a co-defendant, Stan-field, who is not before us in this case. Appellant was arrested because of his sale of firearms to a federal agent, as well as the finding of firearms as the result of a search carried out on the Club premises.

Appellant assigns error on several grounds: He contends that the trial court erred in refusing to grant a pretrial motion to continue the case in order to secure the presence of one William Poore as a material witness, and that the court erred in refusing to compel the government agent to answer questions relevant to the said Poore’s being an informer.

With regard to Poore, appellant’s counsel vigorously maintained that the Government should have been ordered to produce Poore as a witness on appellant’s behalf, or that, if the Government should not produce Poore, the case should be continued until the Government produced him.

Appellant knew from the time that he was first arrested that he wanted Poore as a witness. He had known Poore for a considerable time, knew his aunt and his wife, and the location of his house. However, appellant did not subpoena Poore until the day before the trial. At that time the trial day had been set for three months. Appellant said that he had Poore’s phone number, but .that Poore had had it changed. However, appellant knew the phone number of appellant’s aunt and called her several times about having Poore get in touch with him. According to appellant, the aunt said she would have her brother ask Poore to come over and see appellant, but he never did. Appellant finally located the address and telephone number of Poore from Poore’s wife, but when he called, Poore was not there. Later he called him by phone and asked him to come over and talk with his attorney. Poore told appellant that he had been picked up four or five times on narcotic charges, that no charges had been filed against him, but that, if he came to the trial as a witness, he was afraid they would place charges against him. However, appellant said that he made arrangements to meet with Poore on the Tuesday of the week of the trial. On the evening of the first day of the trial, appellant said he had again called Poore. Mrs. Poore had answered the phone and told him: “Well, he’s not going to come over to court.”

The court then intervened to question appellant:

Q. “How long have you known about Mr. Poore being a material witness?
A. Ever since he came into the bar and . . . introduced Mr. Early as a friend that was in the penitentiary with him.
* * * * * *
Q. Did you ever have him subpoenaed?
A. I didn’t know where to get hold of him at. .
Q. I know, but you knew this case was set for trial. You have known that for some time. * * * ”

It appeared that although the case had been set for trial several weeks in advance, appellant’s counsel said they had not had a subpoena issued because they did not know where to find Poore in the Greater Cincinnati area. The court then inquired:

“But you were in contact with him all this time? * * * Did you make any effort to take his deposition?”

To the reply of counsel that he didn’t know where Poore was, the court stated:

“I thought you said he talked to him on the telephone.”
Counsel replied: “Just this week.”

After the court had again stated that the trial was assigned for September, he observed that Posey knew where to call him, that he had talked to his wife, and that they knew where his home was. Counsel replied that they had just found that out. The court found no merit in appellant’s claim that he could not have subpoenaed Poore in time for the trial when he knew several weeks before that he wanted to have him as a witness, and within days before the trial had been talking by phone with Poore’s aunt, his wife, and with Poore himself, whose address, at that time, appellant knew. The trial judge properly denied appellant’s request for a continuance, in the light of all the facts appearing on the record at the time of the court's action.

Counsel for appellant made much of the claimed error of the court in not allowing questions to be asked that had, as their purpose, the attempt to identify and show that Poore was an informer. The court’s ruling, in the light of the record before us, had no remote or conceivable bearing on appellant’s commission of the offense with which he was charged, and was a proper course to follow in protecting the sources upon which the execution of the criminal law often depends. Whether Posey had engaged in the firearms business in violation of the statute was a question of fact for the determination of the jury.

Appellant further advanced the contention that he was denied due process because of the court’s and the Government’s conduct with regard to two witnesses, Thomas Stenger and Dennis Ray Holland, called by the defendant-appellant at the preliminary hearing. Subsequently, Stenger was arrested on a charge of transporting guns across a state line and delivering them to an unlicensed dealer. On the trial of the instant ease, Stenger refused to answer questions concerning the transfer of four Titan pistols, introduced by the Government, on the ground that it might tend to incriminate him.

As to Holland, his testimony on the trial of Posey’s case was interrupted by the United States Attorney, who asked if counsel might approach the bench, and when that request was granted and counsel for both sides approached the judge, the United States Attorney informed him that the Government intended to charge Holland and Stenger in a separate charge involving the same evidence before the court in the instant case, and suggested to the court that it might advise the witness of his rights “to preclude any problem that is to come up because I am sitting here and I know what is going to happen.” The court then stated he would advise Holland of his rights, and told him that, under the law, he did not have to give evidence as to any fact, or to answer any questions that he felt might have a tendency to incriminate him. Holland then said he would not testify until he saw legal counsel. Defendant’s attorneys then delivered themselves of certain sentiments to the effect that “for the United States to have these facts for this period of time, to know this matter had been set, and then we call this witness and when this man testified, when this man testified at Lexington, Kentucky, and they knew he testified and testified in June of this year, and they have a record and they wait until today, that is undue pressure.” It is difficult to understand the contention that Government counsel’s conduct, as above observed, constituted undue pressure, and resulted in denial of due process. After the court had informed witness Holland of his constitutional right to refuse to testify as' to any matters that might have a tendency to incriminate him, Holland, out of the hearing of the jury, said to the judge:

“When Mr. Gantenbein came up to my place to talk to me, I would have taken it as a threat if I didn’t say certain things, that he was going to have me charged with something.”

Counsel for appellant, after Holland’s statement, addressed himself to the court as follows:

“I move to dismiss. There is too much pressure on these people.”

The court replied:

“I don’t know what they have.”

Counsel for appellant:

“They come up here and advise you in this court today that they consider arresting this man or making a charge.”

The Court:

“I overrule your motion.”

The record then states: “THEREUPON THE COLLOQUY AT THE BENCH ENDED.”

There is something rather peculiar about Holland’s statement. Nothing that Gantenbein said, or was alleged to have said, prevented Holland from appearing and taking the stand as a witness on behalf of appellant, or seems to have made any impression on him as bearing on any testimony he should give. It was neither threat nor alleged threat that affected his testimony. The statement of Holland was vague and ambiguous at best. He did not say directly that he was threatened by Gantenbein. He did not state what it was he claimed Gantenbein said. His statement was not sworn to. It was made outside the hearing of the jury. It was not subject to rebuttal by the agent. Finally, no specific argument was made by counsel in open court or in briefs on appeal as to any prejudicial reversible error as a result of the incident.

Clearly, the circumstances with regard to Stenger and Holland cannot be the bases of a reversal of the judgment in this case. The Government has broad discretion in deciding whom to charge with crime, and there is no serious allegation that Stenger’s indictment was without basis, or that it constituted a denial of the equal protection of the laws. As to Holland, the Government, it seems to us, had an obligation to inform him that he was under investigation in connection with the set of facts about which he was testifying. Appellant implies that there was never any attempt to charge Holland; but we cannot conclude that this is the case from the facts in the record before us. The Government has no obligation to pursue every prosecution that it commences, nor to charge every suspect that it investigates, or intends to charge. There is no proved cause for criticism of the actions of the Government in regard to these two witnesses. From the record before us, and the circumstances of the witnesses and parties, we certainly are unable to suspect or conclude that the Government was guilty of any dubious tactics. Were this not so, the court could, of course, send relevant parts of the record to the Attorney General and the Secretary of the Treasury for further investigation and action; but nothing in this case warrants such action, and speculation based on inconsequential shreds of .evidence found by the wayside are not justification for such rigorous proceeding.

We come, then, to the facts surrounding the arrest of appellant and the seizure of guns and ammunition at his place of business. Agent John Early stated in a pretrial hearing that he met one William Poore in a bar in Newport, Kentucky, in March, 1972, asked him if he knew where the Mustang Bar was, and that upon Poore’s telling him, they went over to the Mustang together. Agent Early had then asked Poore if he would introduce him to Paul Posey, the manager. It appeared in subsequent pretrial testimony that Poore introduced Early to Posey. At trial, however, when the defense began cross-examining Early, the case became mired down from appellant’s standpoint when the court ruled that he would not allow the defense to interrogate Early on the question whether Poore was an informer.

After the court’s ruling, the case proceeded with Government counsel’s introducing evidence of the sale of firearms and ammunition to federal agents by appellant Posey. When the bar was raided, seven firearms were found, a number in their original boxes. When one witness sold appellant a gun, he testified that appellant used a large reference book to. help establish the price. Early testified that on the day he met Posey, the latter told him he dealt in firearms, selling them as soon as they came in. There was substantial evidence to justify the jury in arriving at its verdict that Posey was guilty of violating the statute. See United States v. Day, 476 F.2d 562 (C.A.6, 1973), United States v. Wilkening, 485 F.2d 234 (C.A.8, 1973).

We are then confronted by the defense that appellant was the victim of entrapment by the federal agents, an unusual defense in that he claims he was entrapped into violating a law, that he also claims he did not violate in the first place.

In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366, it is observed that in cases involving entrapment, the focus of inquiry is on the “predisposition” of the defendant to commit the crime, rather than on the Government’s activities. In this Circuit, it was declared in United States v. Ambrose, 483 F.2d 742, 746 (1973): “[Ojnly when undisputed facts establish that the criminal design originated with the Government agent, that the agent implanted in the mind of an innocent person the disposition to commit the offense * * * can we conclude that entrapment was established as a matter of law.” The evidence of appellant’s predisposition, and the lack of any evidence that the agents implanted in an innocent person’s mind the disposition to commit the offense, cause the complete failure of appellant’s effort to show entrapment.

Appellant contends that the trial judge should have suppressed the evidence seized during the search because the original affidavit for the warrant was lost. A copy of this affidavit was available, but it contained some added typed matter, which may or may not have been in the original. No claim is made that, without such possible added matter, there was any lack of probable cause. Nor do counsel tell us what additional matter may have been typed into the copy of the affidavit. We are of the view that the contention advanced is without merit. There is no claim that there was lack of probable cause for the issuance of the search warrant. There is a presumption that a magistrate has properly performed his duty with regard to whether an affidavit for a warrant showed probable cause, United States v. Haskins, 345 F.2d 111, 113 (C.A.6, 1965), and this presumption appellant has not attempted to rebut. Moreover, there is no showing of even a trace of prejudice.

With regard to reversible error in the trial court’s charge to the jury, it is contended that in explaining to the jury the intent of. Congress in enacting the law under which appellant was charged, the trial judge stated that “a pistol or a machine gun, or a sawed-off shot gun is for one purpose only,” and that because of the fact that no machine gun was involved in the ease, appellant was so greatly prejudiced that he is entitled to a new trial. The trial judge did not state or imply that Posey had sold a machine gun, and the jury, having seen the evidence, could not have been misled. The mention of a “machine gun” considering all the circumstances of the case was a matter strictly de minimis, and certainly not anything of a prejudicial reversible nature.

There appearing no error in the conduct of the case or in the instruction of the court, the judgment entered on the jury verdict by Judge Swinford is affirmed.


author: MCWILLIAMS, Circuit Judge.

text:
    Aubrey Tinsley SADE, Plaintiff-Appellant, v. NORTHERN NATURAL GAS COMPANY, Defendant-Appellee.
    No. 73-1972.
    United States Court of Appeals, Tenth Circuit.
    Aug. 23, 1974.

      Gary Duckworth, Oklahoma City, Okl. (Lampkin, Wolfe, Burger, Abel, McCaffrey & Norman, Oklahoma City, Okl., on the brief), for plaintiff-appellant.
    Richard W. Fowler, Oklahoma City, Okl. (F. Vinson Roach and T. N. Wright, Omaha, Neb., on the brief), for defendant-appellee.
    Before BREITEN STEIN, McWIL-LIAMS and DOYLE, Circuit Judges.
   MCWILLIAMS, Circuit Judge.

The issue here to be resolved is whether the trial court erred in refusing to award prejudgment interest in an action for fraud and deceit. Resolution of the controversy turns on the meaning of an Oklahoma statute. The statute involved, 12 Okl.St.Ann. § 727, provides as follows:

« * * *
“(2) When a verdict for damages by reason of personal injuries is accepted by the trial court, the court in rendering judgment shall add interest on said verdict at the rate of six percent (6%) per annum from the date the suit was commenced to date of verdict.” (Emphasis added.)

The italicized portion of the statute is the critical language. As indicated, the trial court declined to award prejudgment interest on the ground that the aforesaid' statute only applied if the ries” and that here the verdict was by reason of fraud and deceit, not personal injuries. Under the rather unusual facts of the instant case, we agree that 12 Okl.St.Ann. § 727 has no application.

This is the third time this case has been before us. In the present proceeding we shall only refer to those facts germane to the narrow issue now before us. For general background information, see our prior opinions, Sade v. Northern Natural Gas Company, 458 F.2d 210 (10th Cir. 1972), hereinafter referred to as Sade No. 1, and Sade v. Northern Natural Gas Company, 483 F. 2d 230 (10th Cir. 1973), hereinafter referred to as Sade No. 2.

Sade suffered severe personal injuries in an industrial accident occurring in Kansas. Sade was an employee of Dresser Engineering Corporation, an Oklahoma corporation. Dresser, as an independent contractor, had entered into a contract with Northern to perform certain work at Northern’s pumping station near Tescott, Kansas. The cause of Sade’s personal injuries was conceded to be the negligence of one or more of Northern’s employees.

Some five months after the accident in which he sustained severe personal injuries, Sade and Northern entered into a compromise and settlement agreement whereby for $17,500 Sade released all claims he might have against Northern on account of injuries sustained in the accident. Sade later sued certain of Northern’s employees in the state courts of Kansas for their negligence, which, as above mentioned, is conceded to be the cause of Sade’s personal injuries. The Kansas trial court, however, dismissed Sade’s action on the ground that the release referred to above released not only Northern, but Northern’s employees as well. On appeal, this action was affirmed. Sade v. Hemstrom, 471 P.2d 340 (Kan.1970).

It was in this general setting that on March 5, 1969, Sade brought the present action against Northern in the United States District Court for the Western District of Oklahoma. It was Sade’s theory of the ease that the release which he signed was induced by fraud and deceit on the part of Northern, such fraud and deceit consisting of false representations by Northern that the release applied only to Northern, and not to its employees, and that under the release Sade was free to bring suit against Northern’s employees and make an additional recovery for his personal injuries. The release, incidentally, mentioned only Northern, and made no reference to its employees.

The trial court in the instant case first granted summary judgment in favor of Northern on the ground that Oklahoma Workmen’s Compensation Law precluded the maintenance of the action. We reversed in Sade No. 1. On remand trial to a jury ensued, culminating in verdict in favor of Sade for $200,000. This verdict was returned on September 14, 1972, and judgment in that amount was entered by the trial court on September 19, 1972. On appeal, we affirmed in Sade No. 2, although we did direct that the judgment be reduced by $17,500, the sum previously paid Sade by Northern, thereby reducing the judgment to $182,500.

Sade later asked the trial court to enter an additional judgment for so-called prejudgment interest, dating from March 5, 1969, the date when the suit was commenced, to September 19, 1972, the date when judgment entered on the jury’s verdict, at the rate of 6% per an-num, as provided by 12 Okl.St.Ann. § 727. The total amount of such prejudgment interest is $42,207.76. We are not here concerned with post judgment interest. That was paid by Northern at the same time it satisfied the judgment for $182,500 as affirmed by us in Sade No. 2. So, the narrow issue here to be revolved is whether the trial court erred in its disallowance of prejudgment interest in the sum of $42,207.76.

Sade’s claim for prejudgment interest is based entirely on the Oklahoma statute above referred to. If the statute does not apply, then prejudgment interest is not recoverable. The statute itself is of comparatively recent origin, and there are apparently no decisions of the Oklahoma Supreme Court construing the language contained therein. In such circumstances the views of a federal district judge on the unsettled law of his F.2d 619 (10th Cir. 1971). Certainly state are persuasive and ordinarily accepted. Vaughn v. Chrysler Corp., 442 the interpretation given the statute by the trial court is not in our view clearly erroneous. Binkley v. Manufacturers Life Insurance Co., 471 F.2d 889 (10th Cir. 1973).

Not only is there no Oklahoma authority on the subject here at hand, there is apparently no authority outside Oklahoma that touches upon the issue here presented. At least counsel has not directed our attention to any authority from any source bearing on the matter. We suggest, however, that our own opinion in Sade No. 1 throws light upon the question as to whether the verdict of the jury was “by reason of personal injuries.”

As indicated, the trial court in the instant case initially granted summary judgment in favor of Northern on the ground that Oklahoma Workmen’s Compensation Law precluded maintaining an action against Northern. And it is quite true that under both Kansas and Oklahoma Workmen’s Compensation Laws Sade could not maintain an action against Northern for his personal injuries based on common law negligence. Sade’s only remedy was workmen’s compensation benefits. Accordingly, in reversing in Sade No. 1, we emphasized that the action was not one in negligence for personal injuries, but was for fraud and deceit based on false representations made by Northern. By reason of these false representations, though Sade may have indeed suffered legal injury, he did not suffer personal injuries, as such. Rather, because of these false representations Sade unwittingly surrendered his right to proceed against Northern’s employees in the state courts of Kansas, where he could have obtained damages for what truly were the personal injuries caused by such employees’ negligence. It was on this basis only that we reversed in Sade No. 1 and held that Sade did have a cause of action against Northern “for damages resulting from alleged fraud and deceit on the part of Northern.”

So, in Sade No. 1 counsel for Sade necessarily had to contend that his was not an action for personal injuries caused by the negligence of Northern’s employees, since such an action by Sade against Northern would be barred by both Kansas and Oklahoma law. Accordingly, in that case Sade argued, and successfully so, that his was an action based on fraud and deceit, not one for personal injuries. Here, however, it seems to us that Sade is reversing his field and is now trying to convince us that his damages were actually by reason of personal injuries. It seems to us that Sade’s position in the instant appeal is inconsistent with his position in Sade No. 1. More importantly, we believe Sade’s present position is inconsistent with the language and reasoning in Sade No. 1. Indeed, Sade’s present position is virtually at odds with what we deem to be the law of the case.

In any event, we are disinclined to disturb the trial court’s holding that the facts of the instant case do not bring it within the provisions of 12 Okl. St.Ann. § 727. As indicated, our resident judge’s best judgment as to the meaning of a state statute which has not been given prior construction or interpretation by a state court is entitled to consideration. We agree with the trial court that the verdict in the instant case was not “by reason of personal injuries,” but was by reason of fraud and deceit. By such fraud and deceit Sade did not sustain personal injuries, but rather gave up a valuable legal right, namely, the right to sue Northern’s employees in Kansas for their negligence. The fact that in determining the value of the right thus surrendered the jury was permitted to consider what Sade might reasonably have been able to recover in his Kansas proceeding against Northern’s employees does not change the situation. In sum, we accept the trial court’s interpretation of the Oklahoma statute.

Judgment affirmed.